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In a recent article, The Baltimore Sun reported that the Baltimore City State’s Attorney’s Office had subpoenaed unwilling women to testify in criminal cases. The Sun described how one woman was subpoenaed to testify in a case against a former partner who was prosecuted for possession of a firearm by a felon. The woman begged police to excuse her from testifying, saying, “The only way I am safe is if I don’t show up to court.” Prosecutors subpoenaed her nonetheless, forcing her to testify and leaving the woman to fear retribution after the defendant was acquitted.

That the State’s Attorney’s Office uses subpoenas to compel unwilling witnesses to testify is not news. As the article notes, witness reluctance and intimidation have long been problems in Baltimore, and prosecutors have long had a policy of compelling witnesses to testify notwithstanding legitimate witness concerns.

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Moreover, that the State’s Attorney’s Office subpoenas people to testify against current and former intimate partners is not news. Indeed, in 2015, The Sun ran an op-ed I wrote entitled “Mandatory domestic violence prosecution may traumatize victims,” in which I noted that the Baltimore City State’s Attorney’s Office regularly subpoenas reluctant victims to testify in domestic violence cases and asks district court judges to issue bench warrants to arrest victims of violence who fail to appear at trial. Those bench warrants sometimes mean that victims of violence are jailed pending trial.

There are numerous reasons why victims of violence choose not to testify against their current or former partners. Fear is certainly one, but love is another — some victims who are compelled to testify are still in relationships with their partners. Some victims have children with the defendant or live in the same geographic, ethnic or religious communities. Some are concerned that the defendant could be deported if convicted.

But victims in criminal cases don’t get the final say about whether prosecutors pursue charges or whether they will testify. Prosecutors do. And in Baltimore City, prosecutors have decided that they can disregard the wishes of victims and even ask for them to be arrested and held in order to make their cases.

Witnesses to crime in Baltimore express great fear at testifying in court, and say Baltimore State's Attorney Marilyn Mosby isn't doing enough to protect them from reprisals.

It’s almost impossible to know how often victims of violence are being arrested and incarcerated because they do not wish to testify; the State’s Attorney’s Office does not publicize those decisions. But stories from other jurisdictions show just how problematic the practice is. The impact of incarceration on victims is devastating. Victims may be held for hours or days, sometimes in facilities with individuals convicted of serious crimes. In New Orleans, for example, Renata Singleton was arrested, handcuffed and taken to the Orleans Parish Prison after she refused to testify against an ex-boyfriend. This arrest was Ms. Singleton’s first, and she was afraid for herself; for her children, who had been left without a parent in the house; and for her new job, which she worried she would lose. Because Ms. Singleton could not pay a $100,000 bond, she was held. Five days later, Ms. Singleton finally appeared before a judge — dressed in an orange jumpsuit, shackled hand and foot, chained to the other people appearing before the court that day. She was released on a reduced bond of $5,000 and given a curfew and an ankle monitor. The irony was that Ms. Singleton never had to testify: Her former boyfriend pled guilty.

Ms. Singleton was not the only victim of gender-based violence in New Orleans incarcerated to secure her testimony. A victim of child sex trafficking was held for 89 days, and a rape victim was held for 12 days. In some cases, these victims were held in the same prisons as those arrested for crimes against them.

Baltimore State’s Attorney Marilyn Mosby claims to be a progressive prosecutor. In January 2019, for example, Ms. Mosby announced that her office would no longer prosecute people arrested for marijuana possession. But most progressive prosecutors believe that incarceration should be limited to those who have been convicted of serious crimes. This certainly should not include witnesses, particularly witnesses who have already endured violence. If the Baltimore State’s Attorney’s Office wants to take a truly progressive step, it should stop using subpoenas and bench warrants to force victims of violence to testify against their partners.

Leigh Goodmark (lgoodmark@law.umaryland.edu) is co-director of the Clinical Law Program at the University of Maryland Carey School of Law and author of “Decriminalizing Domestic Violence: A Balanced Policy Approach to Intimate Partner Violence.”

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