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By Wayne Parry
Associated Press
ATLANTIC CITY, N.J. — New Jersey’s highest court is grappling with one of the thorniest issues facing criminal justice today: what to do in cases where witnesses to a crime have been threatened or intimidated by defendants to the point where they refuse to testify in court.
The issue is a pressing one in areas where intimidation by gang members, drug dealers and other defendants is making potential witnesses afraid they or their loved ones will be harmed or killed if they take the stand.
The state Supreme Court in Trenton heard nearly two hours of arguments Monday on a case that deals with what the state Attorney General’s Office calls “the greatest threat” to prosecution in gang, organized crime and domestic violence cases.
The state wants to be allowed let jurors hear the out-of-court statements of witnesses who have been threatened without presenting the witnesses themselves.
But defense lawyers argue that would not be fair to defendants, who have the Constitutional right to confront their accusers in court.
Deputy Attorney General Daniel Bornstein told the court he has read numerous media accounts of witnesses being intimidated or threatened around the state.
“It’s gotten so bad that often entire communities are cowed into silence,” he said.
Some prosecutor’s offices now refuse to prosecute murder cases where there is only one witness, Bornstein said.
The remedy to that is for prosecutors to be allowed to introduce evidence of conversations a witness had with police or investigators outside of court, the state claims.
The case at issue involves a 2001 murder in Trenton.
Dionte Byrd and Freddie Dean Jr. were convicted in 2004 of murdering Charles “Minnesota Fats” Simmons in Simmons’ apartment, and sentenced to life in prison with no parole for 30 years.
Helping to convict them was the statement of Kenneth Bush, who told police he rode in a van to Simmons’ apartment with Byrd and Dean - both of whom he said were armed - and was smoking crack in the back while they went inside.
Bush said he saw the duo run back to the van and later saw that Byrd had suffered a gunshot wound to the leg. He also said he heard both men discuss the shooting.
Bush refused to testify at trial, claiming he’d been threatened by Byrd and Dean, but the trial court permitted the state to elicit testimony about Bush’s statement to police.
An appeals court overturned the convictions in 2007 on the grounds that Bush’s statement was improperly admitted into evidence.
Byrd’s attorney, Andrew Schneider, told the justices that in their attempt to get the rules changed, prosecutors are using “appeals to fear, anger and revenge - coincidentally the same emotions that get people into trouble.”
Many of the justices worried about how to evaluate the reliability of any out-of-court statements that might be sought to be introduced at trials, even as they acknowledged that witness intimidation is a serious problem.
“There are countless cases where a witness gives a statement implicating a person in a crime, and when they get to court, they don’t remember anything,” said Justice Barry Albin. “There seems to be a climate of fear in certain areas where the witnesses are afraid for their lives to testify in court.”
The U.S. Supreme Court allows out-of-court statements to be heard at trial under what is known as the “forfeiture-by-wrongdoing” rule - essentially, that defendants forfeit their Sixth Amendment right to confront a prosecution witness if they wrongfully cause the absence of that witness.
New Jersey’s rules of evidence don’t include a similar provision, though the state’s brief in the Byrd case notes that “at least 31 states and the District of Columbia have adopted the forfeiture rule.”
The New Jersey court gave no indication when it might issue a decision.