Thank you for sharing!

Your article was successfully shared with the contacts you provided.
I have to confess: I’m torn by the defense bar’s latest beef with the Santa Clara County district attorney’s office. At issue is a letter that the DA’s office has been routinely sending to victims and witnesses in cases it believes are gang-related. Among other things, it tells witnesses they don’t have to speak with or provide personal information to the accused’s representatives. Defenders say the letter is meant to shut the doors to defense investigators, depriving clients a fair trial. Which is probably true. Still, the letter is laudable, if only for its candor about the risks faced by witnesses in gang cases. “You are being told this in order to help you decide whether you believe there is any possible danger to you or anyone close to you,” it states. It’s refreshing to see the DA level with those people unlucky enough to have their names wind up in a police report. Even casual observers of the criminal justice system — or the “Sopranos,” for that matter — know this can be a death sentence, and too often prosecutors downplay the risk because they can’t make a case without the testimony. Perhaps that’s why District Attorney George Kennedy defends the letter as a public service. Given what’s happened to witnesses in gang cases this year in Alameda and San Francisco, he’s got a point. “They are trying to spin it into us telling people not to talk,” he says, adding that’s just not the case. There’s plenty of spin here, but it’s being applied to both sides of the ball. For all its candor, Kennedy’s letter fails to spell out the obvious: The greatest risk to witnesses comes in speaking to and cooperating with the prosecution. The letter implies instead that avoiding contact with defense representatives is the key to avoiding gangland retribution. But the last paragraph of the letter gives up the game: “It is important that you realize that we cannot guarantee that the person(s) involved in this crime and/or their associates do not already have, or cannot obtain, information that will allow them to find you.” If you believe you’re in any danger, “contact the police immediately.” Fairness would dictate that witnesses be told the downsides to cooperating with each side. But as San Francisco Public Defender-elect Jeff Adachi notes, if the defense wrote a letter to witnesses along the same lines, “you would have a defense attorney charged with obstruction of justice.” Perhaps the answer is a more explicit rewrite of Kennedy’s letter. It might read: “You’ve been identified as a victim or witness in a gang-related case and your name appears in a police report. If the accused believes you are cooperating with prosecutors and that your testimony could implicate him, your life could be in danger. “If you wish, we can tell the accused’s lawyers that you don’t wish to share your personal information with them and don’t wish to speak with them about the case. However, you should know that they will then assume your testimony is damaging to the accused. “You should also know that the accused can find your personal information (and may have already done so) through other means. If you believe you are in danger, please contact the police; there is nothing we prosecutors can do about it.”

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.