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BOSTON �— The Massachusetts Appeals Court upheld a lower court’s witness intimidation jury verdict by ruling that pointing a cellular telephone camera at a witness in a criminal case is witness intimidation. “It is irrelevant whether any photographs were taken, as the police officer was made to believe that the defendant was taking pictures of him and could disseminate his likeness, an act intended to intimidate,” wrote Associate Justice R. Marc Kantrowitz. The defendant was found guilty of intimidating a witness last year in a case that arose from a 2004 trial for drug-related offenses. While in a courthouse during his 2004 drug trial, the defendant acted as if he were taking cellphone photos of an undercover police officer who was scheduled to testify against him. When a judge ordered the confiscation of the phone, the defendant said he had already e-mailed the photos to his house. Commonwealth v. David Casiano, No. 06-1503 (Mass.) The defendant later claimed that his cell phone wasn’t operational on the day in question. The judge denied his request to introduce records from the cell phone provider because no company representative appeared to testify. The undercover officer testified that having his photo on the Internet could jeopardize his drug investigations and his own and his family’s safety. Citing prior state case law, Justice Kantrowitz wrote that actions don’t need to be “overtly threatening” to be considered intimidation, and that the defendant’s action “threatened the undercover officer’s continuing safety.” “Fear itself can be used as a weapon,” said Suffolk County District Attorney Daniel F. Conley, whose office prosecuted the case and argued it before the Appeals Court. “The mere implication that a defendant would obtain and distribute photographs of a witness ready to testify against him, especially an undercover officer, is chilling,” Conley said. The defendant’s attorney Rose E. King did not return a call for comment. The defense attorney on the lower court case, David Weingarten of Boston-based Macy & Weingarten, said the officer was concerned about having his photo taken because of his undercover work, not because he was testifying against the defendant. “The thing I’m most disappointed about is that the taking of someone’s picture is legal — at least it’s not a criminal act to do that,” Weingarten said. “In my mind this was a closer case than the Appeals Court made it out to be.”

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