On taking office in 2002, Suffolk County District Attorney Daniel Conley declared witness intimidation one of the most serious problems affecting public safety and called for a multi-disciplinary approach by law enforcement, government leaders, faith partners and members of the community. Today, Suffolk County leads the Commonwealth in protecting victims and witnesses.
Far from isolated or episodic, intimidation of one sort or another was estimated as being present in approximately 90% of all cases involving guns, gangs and violence – but Conley saw early in his tenure that law enforcement and the courts were hamstrung in their efforts to deter and punish it.
In 2004 and again in 2005, DA Conley testified before State House panels that witness intimidation could no longer be considered a problem for law enforcement alone – it had become so widespread that it amounted to a civil rights issue. The prevalence of fear and intimidation within entire communities, almost always where the population is typically poor and of color, was making it increasingly difficult and dangerous for citizens in these communities to access the criminal justice system. Fear and intimidation were undermining the promise of equal justice under the law.
The 2006 passage of landmark anti-gang and witness protection legislation came as a direct result of Conley’s leadership and partnerships in fighting for victims and witnesses. In its first year, the Commonwealth of Massachusetts’s Witness Protection Program provided emergency funds for 145 endangered witnesses or family members – 114 of whom were involved in Suffolk County cases. To date, no critical witness in a Suffolk case has been denied emergency funding from the Witness Protection Program, and Suffolk County victims and witnesses continue to receive the majority of state-sponsored emergency assistance.
Moreover, Conley’s office fought for changes to the law that now make it easier to prosecute threats, intimidation, and perjury, resulting in a string of convictions and lengthy prison sentences for those who sought to thwart the justice system.
In 2006, after extensive work with the Commonwealth’s executive and judiciary branches, Conley brought to Suffolk County a second grand jury, unprecedented in the state. The Special Grand Jury was tasked with developing and reviewing evidence solely in homicides and complex gun- and gang-related cases. By 2009, it was generating more than 40% of Suffolk County’s criminal indictments, allowing prosecutors to fast-track priority cases without paralyzing the thousands of other cases annually that must proceed to the grand jury in order to be adjudicated in Suffolk Superior Court.
Since taking office, DA Conley has developed, implemented and advocated new initiatives addressing the problem of witness intimidation and the gun- and gang-related violence it shields and perpetuates. Taken together, these approaches comprise a comprehensive strategy that runs from the courtroom to the community and from the corridors of power to the classrooms of our schools. They also offer opportunities for everyone – from prosecutors and police to government leaders, members of the faith-based community, and concerned citizens – to play a part and help ensure that victims and witnesses are free to testify in court without fear for their safety, that violent offenders are aggressively prosecuted, and that the promise of equal justice under the law is kept for everyone, everywhere.
By retaining and fostering a top-notch Appeals Division, District Attorney Conley protects trial prosecutors’ convictions and works to shape Massachusetts case law. In one recent year, the DA’s appellate lawyers won a string of landmark decisions before the state’s Supreme Judicial Court that strike at the heart of witness intimidation. Taken together, these cases significantly reduce an offender’s ability to benefit from intimidating or even co-opting those who might testify against them, and they significantly enhance prosecutors’ ability to introduce legitimate testimony that jurors otherwise would not have heard.
Commonwealth v. Edwards The Supreme Judicial Court’s 2005 decision in Edwards brought to Massachusetts the “forfeiture by wrongdoing” exception to the hearsay rule as it is recognized in many other jurisdictions nationwide. Pursuant to this exception, a defendant who has caused a witness to be unavailable for trial forfeits his right to cross-examine that witness and, consequently, cannot object to the admission of that absent witness’s statements. Edwards reduces the incentive for defendants to convince witnesses (whether by intimidation or persuasion) to avoid testifying and allows the Commonwealth to proceed when defendants do procure absence.
The Edwards decision states that, because intimidation and threats are often hard to prove, prosecutors only have to prove that the defendant had a “meaningful impact” on the witness’s unavailability or decision not to testify. Although “forfeiture by wrongdoing” has been adopted by the federal courts and many States, our version of the doctrine is one of the broadest.
Commonwealth v. Le The 2005 SJC decision in Le held that, if a witness cannot remember making a prior identification or denies having made one, prosecutors may nonetheless introduce testimony from a second witness who saw the first witness make the identification to prove the defendant’s identity. Until this decision changed the law, a prior identification was admissible only if the witness admitted on the stand to having made it – regardless of whether he stood by it.
Since the most common form of witness intimidation is convincing witnesses to deny a prior identification, this case is a valuable tool. Now, once a witness makes an identification, it is admissible, so long as the witness is available to testify. Thus, Edwards covers the situation where the defendant causes the witness not to be available at trial, and Le covers the situation where the defendant causes the witness to attend trial but to lie.
Commonwealth v. Pagan Another 2005 SJC decision, Commonwealth v. Pagan, should also assist in addressing witness intimidation. Pagan holds that once a defendant’s bail has been revoked, that order will remain in effect for 60 days (except in very particular circumstances). The significance of this ruling in the witness intimidation context is that a defendant who intimidates a witness while on bail can expect a non-negotiable period of 60 days in jail.
District Attorney Conley has made the swift, sure prosecution of homicides, gun cases, and gang-related violence his top priority. The results show where they matter most – in the courtroom.
The Homicide Session In cooperation with officials from the Trial Court of the Commonwealth, District Attorney Conley established in Suffolk Superior Court a dedicated Homicide Session – a series of proceedings in which only homicide cases are heard. By localizing the times and places in which these cases are heard, homicide prosecutors and their defense counterparts – all of whom are responsible for many pending cases – are able to answer on their cases in rapid succession, reducing the need for schedule-related continuances, cutting a huge backlog of pending cases by more than half, and enabling cases to come to trial more rapidly than ever.
Firearm Priority Disposition Sessions In 2002, it could take well over a year for a simple case of unlawful firearm possession to go to trial. Community members questioned the deterrent effect of a system that allowed gun-toting offenders to make bail and remain on the street with impunity.
Knowing that Dorchester and Roxbury district courts alone account for more gun possession cases than all of Middlesex and Hampden Counties combined, District Attorney Conley approached the chief justice of the Boston Municipal Court Department to propose a rapid prosecution session for city gun cases. Their meetings led to a routing change in which all cases of straight firearms possession are transferred to the Central division of the Boston Municipal Court for motions and trial following arraignment in the district court with jurisdiction.
Now known colloquially as Gun Court, the Firearm Priority Disposition Sessions have cut the time between arraignment and disposition by more than half. Since the program began, more than 800 gun-related cases have been adjudicated with a conviction rate of about 85%.
Special Grand Jury The grand jury indictment is the legal mechanism by which criminal cases are brought to Superior Court, where punishments are potentially far greater than in the state’s district courts. Suffolk County, especially under DA Conley’s leadership, has pioneered the use of the grand jury as an investigative tool as well, using the power of subpoena to develop sworn testimony behind closed doors.
More complex or multi-faceted cases take longer to present to the grand jury. More pressing cases, such as those involving at-large gunmen or sex offenders, must be presented more rapidly. The sheer volume of criminal cases in Boston, Chelsea, Revere, and Winthrop – upwards of 40,000 each year – inevitably meant that prosecutors must scramble for time before the grand jury and, in some cases, prioritize one open shooting over another. Putting the 2005 murders of four young men in a Dorchester basement, for example, before the Suffolk County Grand Jury would have brought almost every other case to a standstill, so Suffolk prosecutors used the Attorney General’s grand jury to investigate it.
In 2006, DA Conley used state grant money to fund a second grand jury, unique in Massachusetts. The Special Grand Jury was dedicated exclusively to homicides and complex gun- and gang-related cases. The results were immediate and dramatic: by the end of 2008, the Special Grand Jury had returned almost 3,000 indictments against more than 730 defendants. Today, the Special Grand Jury returns about 40% of Suffolk County’s indictments.
Witness Intimidation/Anti-Gang Violence Legislation After providing testimony in 2004 where he outlined specific legislative steps that should be taken to prosecute and deter witness intimidation, District Attorney Conley began working with partners in the state’s legislative and executive branches to craft comprehensive witness protection and anti-gang legislation.
After years of testifying before the House and Senate to build awareness about the threat of witness intimidation to public safety and the rule of law, District Attorney Conley persuaded members of the Massachusetts Legislature of the dire need for a statewide witness protection fund. With partners in the state’s executive branch and members of both branches of congress, he led the effort to protect the victims and witnesses whose testimony is fundamental in holding violent offenders accountable.
In 2006, An Act to Reduce Gang Violence in the Commonwealth was signed into law. The legislative package not only established the state’s first Witness Protection Fund, it also enhanced the penalties for intimidating victims or witnesses, increased the penalties for unlawful firearms possession and the misuse of grand jury minutes, and made it easier to prosecute perjury.
Suffolk County cases accounted for more than 80% of the protection dollars disbursed through the state’s Witness Protection Program in its first year. In Fiscal Year 2008, District Attorney Conley’s office continued to send more petitions to the Witness Protection Board than any other, with 30 approved cases for 82 individual witnesses and family members.
By changing the standard for perjury in Massachusetts, the law made it easier to prosecute those who would lie on the stand to protect fellow gang members. By 2008, Suffolk prosecutors had doubled the number of perjury cases brought the previous year, and in 2009 they took a guilty plea from one defendant who lied during a murder trial and accepted an eight-year prison term for doing so.