Justices Bar Anonymous Testimony

Even when the lives of prosecution witnesses are in danger, their identities must be disclosed to the defense during a murder trial, the California Supreme Court decided Thursday.

Prosecutors in gang-related cases increasingly have been asking courts to conceal the names of witnesses. The Supreme Court, while expressing concern for witness safety, now has made it clear that key prosecution witnesses will not be permitted to testify anonymously in California.

The unanimous decision overturns two lower court rulings that allowed Los Angeles prosecutors to keep secret the names of three witnesses to a Los Angeles County jailhouse murder. One of the defendants in the case faces the death penalty.

Los Angeles County Deputy Dist. Atty. Brentford J. Ferreira said Thursday’s decision will make it harder for police and prosecutors to persuade witnesses to come forth in gang cases.

“If the defendants hear the witnesses’ true names, then there is a very great chance the Mexican Mafia will find them and kill them, no matter what program we put them into, no matter what means we use to protect them,” Ferreira said. Prosecutors said the witnesses in the jailhouse murder case already have been threatened by the Mexican Mafia, a notorious prison gang.

Michael Abelson, attorney for the private Witness Protection Foundation, sounded a similar note: “This is a death penalty case for the three witnesses,” he said. “They’re the ones who are going to pay a capital price.”

But defense lawyer Michael Crain called the decision a “great victory” and predicted that it would dampen a recent prosecutorial “fad” toward using anonymous witnesses.

“It is impossible to investigate a criminal case if you don’t know who the witnesses are,” said Crain, a lawyer for one of the accused killers.

Already, Los Angeles County prosecutors said, they can’t get witnesses to come forward in more than 1,000 gang murders. The district attorney’s office has filed charges in the past five years in the murders of 25 witnesses, and 1,600 cases of witness intimidation are under investigation.

Whether the witnesses in the current case now will be willing to take the stand is unclear, Ferreira said, adding that their testimony is critical for the prosecution’s case.

The district attorney’s office may appeal the case, Alvarado vs. Superior Court, SO59827, to the U.S. Supreme Court, he said.

In his opinion for the court, Chief Justice Ronald M. George noted that no state high court has ever allowed the names of crucial prosecution witnesses to be kept secret during a trial.

Prosecutors can still help protect witnesses with special surveillance and housing, relocation, documents to establish new identities and the transfer of inmate witnesses to other prisons, George said. But he conceded that the courts cannot guarantee witness safety.

“We recognize that our decision cannot and will not alleviate the serious problem of witness intimidation,” he wrote.

In addition to protective measures, the court said trial judges may still restrict information about witnesses before trial, may close the courtroom to the public during the witnesses’ testimony and may disclose the witnesses’ identities only to the defense lawyers, not to the defendants.

But any such order may not impair a defendant’s right under the Constitution’s 6th Amendment “to confront and cross-examine the witnesses at trial,” George wrote.

The California Supreme Court spent more than two years struggling with the Los Angeles case. The murder victim, Jose Uribe, was stabbed to death in his cell in February 1993, and the trial of the defendants has been delayed, pending the state high court’s decision.

The witnesses, who were in the jail at the time of Uribe’s murder, identified Joaquin Alvarado and Jorge Lopez as the killers. Both have been charged with first-degree murder, and Alvarado faces the death penalty.

Prosecutors said the Mexican Mafia ordered Uribe killed because he was a “snitch,” and the defendants executed the killing in an attempt to curry favor with the prison gang.

Although the witnesses already have been threatened, prosecutors contend that, without their names, the Mexican Mafia will not be able to locate them.

A Court of Appeal in Los Angeles had ruled that the defense could have the criminal records of the witnesses and police reports about them but that the witnesses would not have to disclose their names, even when they testified in open court.

In addition to a possible further appeal, Ferreira said, the district attorney’s office will ask the California Supreme Court for a “clarification” of its ruling. The decision did not address whether, if witnesses’ names are provided to defense lawyers only, the witnesses must disclose their names while on the stand, he said.

But Robert S. Gerstein, a lawyer for Lopez, said he believes that the ruling clearly requires the witnesses to reveal their names while testifying.

Before the testimony, if a witness’ name is needed for an effective defense investigation and cross-examination, “the prosecution is going to have to put that witness’ identity forward . . . or they are simply going to have to do without the testimony,” Gerstein said.

The case eventually will return to Los Angeles County Superior Court Judge Robert J. Perry, who will have to decide when the defendants’ names must be given to the defense and whether to provide them to the attorneys only.