When Naming Witnesses Means They’ll Be Killed

Jose Uribe lasted only two days in the Los Angeles County jail before the Mexican Mafia ordered him murdered for being a rata, a snitch. Three witnesses who identified the alleged killers will also be killed, prosecutors insist, if the prison gang learns their names.

Thus far--through the preliminary proceedings of two murder cases--the witnesses’ identities have been kept confidential by two courts, which have declared that secrecy is necessary because the Mexican Mafia is infamous for murdering informants.

Now, after an unusually long, 2 1/2-year review, the California Supreme Court is about to decide whether the suspects, one of whom faces the death penalty if convicted, will ever get a chance to learn the names of their accusers.

Defense attorneys, citing the U.S. Constitution, say that anonymous witnesses do not belong in criminal courtrooms, particularly in a trial where the entire case rests on the witnesses’ credibility.

Prosecutors counter that revealing the witnesses’ names would be tantamount to a death sentence--for the witnesses.

Could the prosecution live with a rule that says the witnesses’ names must be disclosed to the defense at least 24 hours before trial? asked California Supreme Court Justice Joyce Kennard during the court’s long-awaited hearing on the case last month.

“The prosecution can live with it,” replied Los Angeles Deputy Dist. Atty. Brentford J. Ferreira. “It is the witnesses who cannot.”

The case, which the court appears to be struggling with, presents a wrenching dilemma over the need to protect witnesses while ensuring that defendants receive a fair trial. Prosecutors contend that many murderers are not convicted because witnesses are too fearful to come forward.

But the U.S. Constitution gives criminal defendants the right to confront their accusers. Without the names of prosecution witnesses, defense lawyers cannot investigate their backgrounds.

Do they have motives to lie? Do they have grudges against the defendants? Have they offered testimony in other cases?

The U.S. Supreme Court has held that the right to confront hostile witnesses is not absolute.

Children testifying against sexual abusers have been allowed to testify outside the presence of the defendants. Peripheral witnesses have been given anonymity, and the defense has been denied the addresses of some threatened witnesses.

Courts have even barred defense lawyers from revealing the names of witnesses to their clients, and convictions of those defendants have been upheld by higher courts, lawyers in the current case said. But in this case, judges of the Superior Court and Court of Appeal in Los Angeles went further.

They said the unnamed witnesses are obligated to meet with the defense lawyers 30 days before trial and, like all witnesses, can decide for themselves whether to answer any questions. Their criminal records and police reports--with names excised--are to be made available to defense lawyers.

But the defendants would not see them until they testified, and the witnesses could not be forced to reveal their names, the courts decided.

The courts reasoned that such a precaution could save the witnesses’ lives because prosecutors contend that the Mexican Mafia requires names and documentation before executing death contracts. Knowing the names of the witnesses also would help Mafia operatives locate them, prosecutors say.

But even the appeals court that approved the secrecy acknowledged that the unusual procedures would significantly hamper the defense--a particular concern in a death penalty case.

“This order is unprecedented in American law,” Michael M. Crain, the lawyer for one defendant, told the state high court.

“Can a criminal defendant be put to death after a trial during which he and his counsel were deprived of knowing the identities of the principal witnesses against him?” Crain asked.

The lower court rulings have “effectively denied the defense the ability to challenge by cross-examination the only evidence” against the defendants, said Robert S. Gerstein, a lawyer for another defendant. “No balancing can justify the dismantling of the rudiments of a fair trial.”

The California Supreme Court has taken an unusually long time to decide the Mexican Mafia witness case, an indication that the issue has troubled the justices.

In December, Los Angeles County Dist. Atty. Gil Garcetti wrote the court a letter complaining about the delay and urging the justices to rule on the matter.

Written arguments by both sides were completed in February 1998, and the lapse of time since the slaying occurred would make it more difficult to prosecute the defendants, Garcetti said. He also complained that lower courts were now uncertain how to handle vulnerable witnesses.

Another option for shielding the identity of witnesses would be a witness protection program in which people who testify are given new identities and sheltered.

Both the state and federal government have such programs, but critics point out that they require witnesses to abandon their entire lives.

“If you want to sell Indian jewelry in Utah and be Mr. and Mrs. Smith, that is your option,” said Michael Abelson, who represented the California Witness Protection Foundation in written arguments to the court.

He said witness program administrators have confided that “you would have to be nuts to go into” such a program.

The witnesses in the Supreme Court case are referred to by number in court briefs. When Uribe was killed in February 1993, Witness 1, Witness 2 and Witness 3 were in the so-called “high power” unit of the jail reserved for inmates with behavior problems or sentenced convicts bound for state prison.

The jail wing had emptied for lunch when Jorge Lopez and Joaquin Alvarado entered Uribe’s cell and stabbed him 37 times with a prison-made knife, prosecutors contend. They say Lopez and Alvarado were attempting to curry favor with the Mexican Mafia.

The witnesses, who were in other cells, testified to a grand jury that they saw the defendants enter the cell and call Uribe rata. They also said they saw Lopez pull off a bloody shirt after the slaying. In addition, the witnesses implicated a third man who they said had provided the knife.

One of the unidentified witnesses had previously served prison time for possession of drugs and had returned to jail for a probation violation.

Another had been convicted of burglary and the third of grand theft auto, burglary and receiving stolen property, according to court records. One witness--the prosecution won’t say which--also has a murder conviction.

12 Killings Ordered in a 3-Year Span

Despite the government’s efforts to protect them, the witnesses have been threatened in the last few years. Defense lawyers say this shows that the Mexican Mafia already know who the witnesses are, but prosecutors contend that, without their names, the gang will not be able to find them.

An inmate aligned with the Mexican Mafia attacked one witness in jail and ordered him not to testify, prosecutors said. Alvarado threatened another witness and someone scrawled the word “Dead” on the cell wall of the third, prosecutors said.

The Mexican Mafia, a prison gang also known as La Eme, ordered 12 murders of inmates, some of whom were in protective custody, from 1988 to 1991, according to court records. Prosecutors contend that the gang remains powerful and has been linked to at least five slayings outside prison.

“The Mexican Mafia can obtain confidential information about people, both in and out of custody, through an extensive intelligence network, including sources inside many public agencies,” the Court of Appeal said in its 1997 ruling on the case.

“The gang has ordered so many murders and there are so many witnesses in protective custody that the state cannot protect them all,” the court said, citing the trial judge’s findings.

Although the California Supreme Court will not comment on pending cases, many lawyers speculate that it may have had trouble getting a majority of justices to agree to a resolution of Alvarado vs. Superior Court, S059827. Court rules require that a decision must be reached within 90 days of oral arguments.

When the hearing was finally held last month, Justice Kathryn Mickle Werdegar noted that the defendants would be able to see the faces of the witnesses on the stand and might recognize them.

Ferreira, an appellate lawyer for the D.A.’s office, acknowledged the risk and expressed concern: “These witnesses, even though they are convicts, they have the right to life. . . . “ he told the court. “If your name appears on the Mexican Mafia hit list, you will be stiffed.”

The defense will not benefit from the names of the witnesses, whom the defendants are unlikely to know, Ferreira said.

Wouldn’t the defendants’ lawyers want the names to investigate any misconduct by the witnesses or whether they have testified or perjured themselves in other cases? Chief Justice Ronald M. George asked Ferreira.

Such information would not be relevant--”not in this case,” the prosecutor replied.

“How can you be so sure?” George shot back.

Ferreira finally conceded that the defense might find it useful to investigate the witnesses, “but for sure they will be killed,” he concluded.

When the justices asked about witness protection programs, Ferreira discounted their effectiveness.

“The Mexican Mafia can reach out and kill people in other states, even in federal prison,” he said. “These three witnesses will be murdered.”

The American Civil Liberties Union has joined the defendants in arguing that the Constitution requires people to take risks to live in a free society.

“Government may use its resources to minimize those risks . . . ,” the ACLU said, “but it may not take away core fair trial rights, even for the most important reasons.”

Court-crafted solutions also tend to be problematic. If the court rules that the defense lawyers, but not their clients, can know the witnesses’ names, the attorney-client relationship is complicated because communication between them is limited, lawyers said.

The prosecution says the witnesses were not given any inducements to testify, although they have been kept in protective custody in conditions that are better than those for other state prison inmates.

The Court of Appeal, in ruling for the prosecution, said society’s need to hold criminals responsible and the “mortal danger” that the witnesses face outweigh the limitations on the defendants’ constitutional right to a fair trial.

“We reluctantly acknowledge that we cannot assure absolute safety to any witness,” the appellate court said in its 2-1 ruling. “We insist only that we not indulge ourselves in a game of judicial roulette with witnesses’ lives.”