Pittsburgh area witness protection programs offer 'a fresh start'

While the feds create new identities, the county programs move witnesses 'outside of the danger zone'

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After 15-year-old LeRoy Powell testified at the preliminary hearing of a friend charged with killing a teen’s unborn child, his mother inquired briefly about her son entering witness protection.

Vicky Powell asked an Allegheny County homicide detective the day after the hearing if the program meant she would have to leave her home in Duquesne. Because LeRoy was a minor, she was told yes.

The discussion went no further, and although Ms. Powell said she and her son had spoken about him moving in with relatives outside the community, it never got to that point.

Instead, LeRoy was ambushed Aug. 6 after receiving a call luring him from his home.

He was killed.

The death has raised questions in the community about the resources available to witnesses who testify against potentially dangerous defendants and whether they're offered often enough.

“It is incumbent upon the detectives — and if they don’t do it, the DAs [must] — to ensure the witnesses understand the risks of not participating in the program,” said defense attorney Lisa Middleman, who is not involved in the Powell case. “If somebody is going to go out on a limb and testify for them, [the witnesses] need to know the risks.”

The Allegheny County district attorney’s office pointed to the fact that since its implementation in 1994, no witness who has entered and stayed in the relocation program has been harmed in retaliation.

Two programs in the county

In Allegheny County, there are two available witness relocation programs. One operates out of the Pittsburgh Police Bureau, and the other through the state attorney general’s office.

Although Allegheny County deputy district attorney Tom Swan would not give in-depth details about the city’s program for fear of jeopardizing it, he did explain how it generally works.

Since its creation in 1994, more than 1,100 families have used witness relocation, and over the last few years, it has placed as many as 52 families in one year.

The program is a designated use of the county’s asset forfeiture fund, made up of cash and the proceeds of the sale of forfeited property collected through criminal investigations. In fiscal year 2011-12, $103,750 was spent to relocate witnesses in serious felony cases. It is classified in reports as “confidential cash expenditures.”

The number fluctuates with need, Mr. Swan said, and in 2009-10, $49,431.04 was spent.

“It can be as much as we need it to be,” he said. 

“If someone needs to be put in protection, we do it,” said District Attorney Stephen A. Zappala Jr. 

Typically, it is up to the investigating detective to determine whether a witness to a crime may need relocation. Once an assessment of potential danger has been made, the detective relays that to an assistant district attorney working the case, who then passes it up the chain of command to Mr. Swan. 

To enter the program, a witness must agree to cooperate in testifying truthfully against a defendant, to stay away from the danger zone, not to contact people from his or her past and to not break any laws.

For emergency needs, both the city and county homicide units have access to ATM cards that generally have a $5,000 balance, Mr. Swan said. Those can be used in the middle of the night to provide hotel rooms or transportation for a witness in immediate danger.

“It can be instantaneous if it has to be,” he said.

After that, the witness would go through the referral process to enter the formal relocation program. 

There is no minimum or maximum amount of money, and no limit on the number of family members that can enter the program, Mr. Swan said. 

In one instance, several years ago, he said an entire extended family, including their pets, was moved to a Western state at a cost of $100,000. 

That type of expenditure, though, is rare. Typical moves include moving across the state, and sometimes just across the county. 

“We move them outside of the danger zone,” Mr. Swan said. 

The witness has to sign off on the location to which he or she is being moved, and is usually given more than one choice. 

“The program has a network in Pennsylvania and across the country it can use to send people,” Mr. Swan said. 

The idea is not to create an entirely new identity for the witness — as happens in the federal system — but to give a fresh start in a place where the person is not in danger.

“The program is successful because of other agencies,” said Pittsburgh police Sgt. Marcia Malloy. “Without agencies like city and county housing, Allegheny County mental health and drug rehabilitation centers, the board of education and countless others [witness protection] would have a more difficult job.”

Expenses covered by the city’s program can include security deposits, rent and anything from groceries to bus tickets to utility bills. Participants are given gift cards to buy food, and they are never given “wads of cash,” Mr. Swan said. 

Every expenditure in the city program, which receives its own funding from the police bureau budget, must be recorded, and detailed records are kept with receipts. 

While people have been kicked out of the program — one witness set his hotel on fire and was charged — no one who has experienced a legitimate threat has ever been rejected, Mr. Swan said. 

Assessing the threats against a witness is left to the detectives working the case. In LeRoy Powell’s situation, his family said he was receiving threats through social media. In one instance, Mr. Swan recalled that a defendant already facing charges said in a recorded jail call to a friend, “A snitch gets stitched,” which was enough to get the witness against him into protection. 

Entry into the program, Mr. Swan said, is based on the totality of the circumstances including the criminal history or reputation of the defendant. If a witness later recants, he or she would be removed from the program. But if the witness does cooperate, and there is no conviction, there is no penalty. 

In 1997, the district attorney’s office entered into an agreement for the Pittsburgh police Witness and Dignitary Security unit to administer its relocation program for every law enforcement agency in the county. The reason for that, Mr. Swan said, was that the city had the knowledge and resources already in place. There are five detectives and one sergeant that work in the unit, Sgt. Malloy said. 

In recent years, according to county spokeswoman Amie Downs, the Allegheny County police have been using the attorney general’s program instead. 

It began in 2002 and involves a multiple-page questionnaire for witnesses, including details about their personal lives such as whether they are involved in any child custody or civil disputes, own firearms, where they are employed or if they use drugs.

According to a spokeswoman from the attorney general’s office, a little more than $304,000 has been spent in Allegheny County on the program since its implementation.

Ms. Downs said that the county uses the district attoryney’s program for short-term emergency needs, but chooses the attorney general’s office for longer-term protection. She could not explain why, and a spokeswoman for the attorney general’s office would not provide any details about how many witnesses had been placed.

Defense lawyers not impressed

Witness relocation in Allegheny County has a reputation in the defense bar as being substandard, with some criticisms including that witnesses are moved only from one neighborhood to another within the county, and that they are not given 24-hour security. 

Several top criminal defense attorneys said they have never steered a client into local witness protection, but they have cross-examined people who got assistance from the programs.

Kenneth Haber, a former assistant district attorney, represented Eric Lamont Barlow in a January homicide trial in which one of the key witnesses was a man on whom prosecutors have repeatedly relied for testimony in cases.

That witness was in the state attorney general’s program, according to a motion filed by Mr. Haber in the case, and “received financial remuneration of approximately $7,400 for expenses, utilities, food and relocation.”

Quoting from depositions of the witness and a detective, Mr. Haber wrote that the witness was repeatedly supplied with cash through the program, and “was not expected to show receipts, and his spending was not monitored.”

Though the money was ostensibly for relocation from McKees Rocks, the witness didn’t leave the Pittsburgh area, Mr. Haber wrote. Finally, the witness “was terminated from the witness protection program due to the Dec. 31, 2011, robbery he participated in." 

Defense attorneys sometimes use the details of the protection service to undermine the witness’s credibility at trial.

“There are contracts that [protected witnesses] sign. There are vouchers that will detail the amount of monies that are paid to these people,” said defense attorney Lee Rothman. “So there’s an incredible amount of documentation.”

“If you’ve got somebody who was paid $10,000, or $15,000, or $20,000, which I have seen,” it can become an issue at trial, said attorney James Wymard. “I think that’s relevant to their credibility in testifying if they’re receiving $500 cash per month, to be a witness, for a year while they’re waiting to testify.”

Mr. Haber said that the Barlow case — which ended in not guilty verdicts on the homicide counts and a hung jury on lesser charges — was one of the rare instances in which he has run into someone who signed up for witness protection.

“My sense is that most people just don’t want it.”

Richard Narvin, who heads the county’s Office of Conflict Counsel, said he has had offers from law enforcement for clients to enter the program in exchange for cooperation, but no one has ever taken it. 

“An effective program takes them completely out of everything they know,” he said. “A lot of people don’t want to disappear. They may only have family and their neighborhood.”

And, Mr. Narvin continued, having to stay in the program long-term could be a problem, too.

Defense attorney Patrick Thomassey agreed. 

“The biggest problem I see in witness protection is people staying in it,” he said, noting that he’s seen people who will move away and then return to Pittsburgh for something like a sporting event.

In his experience, witnesses in the program have been moved to different counties.

Defense attorney Blaine Jones said he sometimes asks for protection for clients who are testifying against their co-defendants. When that happens, he said he doesn't even like to know where they're placed because he doesn't want to compromise their safety.

“I’ve had no complaints,” he said. 

Defense attorney William Difenderfer said he thinks that the danger associated with testifying in drug cases is overstated, but in homicides, it is a legitimate concern.  

“If you’re testifying against somebody in Homewood or Wilkinsburg in a homicide, and you go back to that neighborhood, you’re crazy,” he said.

Paula Reed Ward: pward@post-gazette.com, 412-263-2620 or on Twitter @PaulaReedWard. Rich Lord: rlord@post-gazette.com, 412-263-1542, Twitter @richelord. Liz Navratil: lnavratil@ post-gazette.com, 412-263-1438, Twitter @LizNavratil.

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