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Baltimore prosecutors are struggling to prove witness intimidation. Marilyn Mosby pushes bill she says will change that

Maryland State Attorney Marilyn Mosby has an active legislative agenda that she says will reduce crime in Baltimore, better safeguard witnesses against intimidation and address heroin addiction as a health crisis, not a criminal one.
Maryland State Attorney Marilyn Mosby has an active legislative agenda that she says will reduce crime in Baltimore, better safeguard witnesses against intimidation and address heroin addiction as a health crisis, not a criminal one.(Jerry Jackson/Baltimore Sun)

Baltimore has been called a haven for witness intimidation, and city leaders blame the rampant gun violence in part on a street culture of “stop snitching.”

Still, prosecutors say they have been unable to lock up the people threatening witnesses because standards are too high to use a controversial form of evidence at trial: hearsay. State’s Attorney Marilyn Mosby is urging lawmakers to lower that standard as part of a raft of legislation she’s pushing this General Assembly session.

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Mosby also wants the legislature to designate safe sites for drug addicts to use heroin, to block police from interrogating a child without first notifying a parent, and to require state officials to pay those wrongly convicted nearly $79,000 for each year behind bars.

“We’ve gotten a lot of bipartisan support, especially around the witness intimidation bill,” Mosby said. “People recognize this is major.”

The General Assembly opened last week with lawmakers pledging to rein in Baltimore’s gun violence. Gov. Larry Hogan announced his own crime package including a bill to toughen penalties for witness intimidation. Baltimore ended 2019 with 348 killings, the second-highest total on record and its worst-ever homicide rate. The new year began just as bad: 15 people killed in 15 days.

Mosby said that more than one-third of criminal cases her office drops are dismissed because of uncooperative witnesses or victims. It’s a problem that traces back more than a decade to the influential “Stop Snitching" DVD and, even earlier, to the retaliatory fire bombing that killed seven members of the Dawson family in their East Baltimore home.

Last year, Mosby launched a public relations campaign to reassure witnesses, airing commercials on radio and TV. Billboards carried her message around the city. She hired more people to escort witnesses through trial.

Now, she wants the General Assembly to ease the restrictions on when prosecutors may use hearsay evidence in cases of witness intimidation. Her proposal also would loosen the rules to use hearsay in felony drug crimes and crimes of violence such as robberies, carjackings, assaults and murders.

This would bring Maryland’s rules in line with the federal courts, 42 states and Washington, D.C., said Zy Richardson, spokeswoman for Mosby.

Two lawyers, Delegates Erek Barron, a Prince George’s County Democrat, and Shaneka Henson, an Anne Arundel Democrat, are sponsoring the bill.

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“Our goal is to make this rule more in line with the federal rule, which is pretty long-standing and well-tested,” Barron said, “and really allow this to be a tool, where appropriate, for prosecutors to be able to make their cases.”

A former state and federal prosecutor, Barron also introduced legislation this session to designate witness intimidation a crime of violence.

Maryland has a reputation for strict standards of evidence to protect the rights of defendants and keep out prejudicial testimony. The law generally prohibits second-hand statements, or hearsay, to be used at trial. That is, unless a defendant has “procured the unavailability” of the witness — say, by scaring them off.

The Maryland rules set a high bar for when hearsay statements may be permitted. A judge must be persuaded by “clear and convincing evidence” that the defendant “engaged in, directed, or conspired to commit the wrongdoing that procured the unavailability” of the witness.

Mosby’s wants the General Assembly to loosen this standard to “a preponderance of the evidence.”

The “clear and convincing" standard is high, requiring substantially more evidence. The preponderance standard is low, requiring just enough to tip the scale.

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Mosby said this change is needed to help her prosecutors win cases even when witnesses are too afraid to come forward. Richardson, her spokeswoman, said she believes the office did not convict anyone of witness intimidation last year.

Still, hearsay testimony is troublesome, defense attorneys say. Second-hand statements may be misconstrued, or even fabricated entirely. Further, recent scandals have eroded trust in one frequent state witness: cops.

“Hearsay is generally not allowed as evidence at trial because any outside statement may not be true or reliable, and there is no way to challenge or expose its inaccuracies and biases. This bill raises these same concerns,” said Melissa Rothstein, spokeswoman for the Maryland public defender.

Baltimore defense attorney Latoya Francis-Williams said the restrictions on hearsay are crucial to ensure a fair trial.

“It’s not necessary to lower the standards for something that the law believes is inherently unreliable," she said.

Meanwhile, defense attorney Warren Brown played down the significance of the standard, saying judges allow hearsay as they wish.

“Let’s face it. In an egregious case, a serious murder case, a judge is going to find that it’s clear and convincing. Call it what you want,” he said.

Barron, the bill’s sponsor, noted this same lower standard is used in federal courts. Those courts haven’t had problems with untruthful hearsay evidence, he said.

A federal trial in 2018 of the murderous Trained To Go street gang brought to light the threats witnesses may face in Baltimore. A key witness was gunned down months before he was to testify. Eight men were convicted anyway. The brothers who led the gang were sentenced to life in prison.

Prosecutors accused the gang members of packing the courtroom to intimidate those who testified. One person lifted up his shirt to flash his tattoos — an apparent act of intimidation.

Mosby, meanwhile, has partnered with lawmakers to introduce various other bills this session, including one to authorize safe sites for drug addicts to use heroin.

In Philadelphia, a nonprofit is working to open the country’s first safe injection site where addicts may use drugs under medical supervision and with access to doctors and treatment. Mosby said she toured such sites in Germany and Portugal last year and she wants to bring them to Baltimore. Opioids such as heroin kill more people here than guns, she noted.

“It’s about saving lives,” she said. “We need to treat substance-abuse disorder as a public health crisis.”

Mosby said she also will push for bills this session to give crime victims a chance to speak up during hearings to decide whether a child stands trial in juvenile court or circuit court. Another bill would give neighborhood leaders the opportunity to weigh in before a judge hands down a sentence. And Mosby said she wants reduce the chance of prison time for those who fail to pay traffic fines.

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