Refuge for Endangered Witnesses

For the past year, Linda Smith (not her real name) has lived in hiding under the threat of death.

After testifying against the father of her child in a sexual-molestation case, Ms. Smith, her family, and friends have all been repeatedly threatened and harassed. And members of the father's family have made good on other death threats - one is a convicted murderer.

"My daughter and I live a nightmare existence within four walls," says Smith. "I can't see friends or family, get a job, get a library card. My daughter can't go to school."

Now, under an unusual California program that is attempting to become a model for states across the country, Smith has hope.

Launched in January, the California Witness Protection Program (CWPP) helps relocate such endangered witnesses at state expense, and create new legal identities for witnesses threatened with retaliation for their testimonies. Different from the well-known, federal Witness Protection Program, the CWPP gives help where local law enforcement needs it most - in the 97 percent of crime cases that are not federal infractions.

"We spend millions on cops, courts, and jails but almost nothing on the essential ingredient that helps win convictions - witnesses testimonies," says state Assemblyman Robert Hertzberg, who drafted the law.

Looking at Los Angeles-wide studies showing that 40 percent of crimes went unprosecuted for lack of available witnesses, Mr. Hertzberg and others crafted a law based on the federal model, but one that in some ways goes further. As such, it is the first state program that tries to tackle problems that were previously dealt with only through a hodgepodge of confusing programs and laws.

"The issue is not just the murder of witnesses but, how do you keep violent syndicates and gangs from intimidating and thus controlling whole communities," says Sergio Robleto, a 26-year veteran of the Los Angeles Police Department's South Central bureau, who helped write the new law. He notes that more than 1,000 homicides here went unsolved from 1990 to 1995 for lack of a single witness - and that 10 witnesses who did testify were killed. "The gangs know how to support each other in force. Now it's time that communities create and use the tools they have to do the same," he adds.

What's the difference?

Certain kinds of witness-protection funds already exist in many states. But allocations specifically earmarked for protecting witnesses are small - $150,000 per year for all of Los Angeles County, the nation's most populous, for instance. Such funds might cover the cost of a couple of nights in a local hotel, or the price of a U-Haul trailer to move belongings across town.

By contrast, the new state program offers specific provisions to cover moving costs, change in identity (Social Security numbers, license, birth certificate), health-care costs, and other expenses deemed necessary by local authorities. Most important, it covers crimes not included in the federal program such as gang-related threats, extortion, domestic violence, hate crimes, crimes involving the elderly or handicapped, and drug-dealing.

"Witness relocations are very expensive and time-intensive propositions," says Johnny Boulden, deputy chief investigator for the San Diego County district attorney, who has used the new state program a number of times. "This will give agencies across the state access to other funds. Otherwise, there is a disincentive to help."

It is this greater latitude in spending money - in addition to a provision that makes witnesses eligible for protection even during the pretrial or pre-arrest phases - that is attracting other states' attention.

"Witness protection is a major problem for police departments in every area of the country," says Nancy Rhodes, former editor of Policing by Consent, a publication of the National Coalition on Police Accountability. "Whatever works in California will be mimicked soon in other states."

Part of the reason local law-enforcement agencies have been reluctant to create a system that attacks witness intimidation aggressively, say Mr. Robleto and others, is the potential legal liability in setting up such a system. Records show that attacks, shootings, and killings of witnesses have led to hundreds of thousands of dollars of payouts to Los Angeles County witnesses and survivors.

In a controversial move, the CWPP tries to decrease that liability of law-enforcement agencies. A section of the new law declares: "[State] officers and employees shall have immunity from civil liability for any decision declining or revoking protection to a witness."

That language has led some critics to complain that police departments, without the threat of lawsuits, may now cut corners in protecting witnesses.

Others, however, say the section is vital to the law. "This is the key provision that sets CWPP apart from everything that has come before," says Robleto. "Now, officers can enter into more communicative and supportive roles with potential witnesses who before stayed out of the process out of fear."

For the program's first year, state lawmakers have earmarked $3 million and asked for $5 million for the second year. Some observers say the figure could triple based on need, somewhat in the way state prisons are funded.

"I don't see funding becoming a problem," says Craig Cornett, spokesman for the state legislative analyst. "If the claims are there, the state department of justice can get more money."

The program's future

Analysts say the program will be analyzed after one year to determine how many convictions have been won for the amount of money spent. The new program has been used 49 times so far, but state officials will not reveal conviction rates until a first-year appraisal is finished in January.

Unlike the high-profile federal witness-protection program, which is run by the US Marshals Service, average payouts are likely to be much smaller - say $2,500 to $10,000 - for one-time, permanent relocations. The federal program has relocated 6,800 witnesses since 1970, at an average cost of $160,000 each, according to spokesman Bill Dempsey. Ninety-eight percent who have entered the program have criminal records.

By contrast, witnesses in the California program will not necessarily have criminal records and will more likely be low-income people from inner-city and high-crime neighborhoods.

"The public has to tone down the image portrayed in popular movies that this is about setting up cold-blooded killers in luxury," says Ted McNally, FBI special agent in charge of Los Angeles.

Part of the issue now, say victims advocates, is that witnesses have to know about the program and be assured it will work for them.

"Witnesses don't trust police to keep them safe," says LaWanda Hawkins, a victims advocate whose teenage son was killed two years ago. The killer remains free, she says, because witnesses are afraid to come forward.

To achieve the new trust, the state program has to iron out some early problems and become known among local law-enforcement agencies. In the Linda Smith case, for example, funds have been approved by state authorities, but no mechanism yet exists to create new identification for Smith and her daughter.