At trial, can a witness be nameless?

It is a public obsession as old as jurisprudence itself: How to protect a crime witness who "knows too much"?

By summer's end, the California Supreme Court is expected to decide whether the state can withhold the names of witnesses who testify at trial against suspected murderers - in an effort to protect those witnesses from retaliation, or even death.

Depending on its outcome, the witness-protection case here in California could affect legislation and court decisions from coast to coast, or end up before the US Supreme Court. The pivotal issue - how to keep testifiers safe and still give the accused a fair trial - has emerged as a trouble spot in America's war on drugs, particularly in the crackdown on gang-related drug-dealing.

The problem has been dramatized in movies like "Witness," "Lethal Weapon 2," and "The Whole Nine Yards." In real life, the case of Sammy "The Bull" Gravano - who entered a witness-protection program in 1995 after sending 37 mobsters to prison - surfaced again last year amid a plot to murder him.

"California is finally facing up to a ... dilemma that has long faced its court system: the right of a defendant to face his accuser versus the right of a witness to be free from intimidation, even death," says Robert Pugsley, a professor at Southwestern University School of Law here.

After a 2-1/2-year review, the California Supreme Court is set to decide whether two witnesses - who have each identified killers in criminal cases heard in lower state courts - can remain anonymous from the defendants they have fingered for murder.

Already, two lower courts have said they can. In those courts, prosecutors have successfully argued that because the Mexican mafia has established a reputation for murdering informants - and has done so in the case in question - the witnesses' very lives are at stake.

But defense lawyers cite the Sixth Amendment of the US Constitution, which holds that the accused have a right to face witnesses against them during a trial. That requirement outlaws anonymous witnesses, say defense lawyers, who wonder how they can possibly test the credibility of people whose identities remain a mystery.

"This is tremendously important for the US legal system in figuring out whether we are going to maintain an adversary system of justice," says Robert Gerstein, a Santa Monica appellate lawyer who argued the case before the court June 6.

So far, the answer to the problem has been the creation of witness-protection programs, which exist at the federal level and in a handful of states. But such protections require testifiers to take the radical steps of changing their identities and moving far away from relatives and friends.

"The issue being decided here, after the prosecution puts forward its case, is whether or not the defense has the proper opportunity to challenge the testimony by subjecting it to careful scrutiny," Mr. Gerstein says.

In the case before the California high court, the two witnesses, inmates at Los Angeles county jail, testified that two other inmates entered the cell of Jose Uribe and killed him with a makeshift knife. The witnesses say the alleged murderers were trying to court favor with the Mexican mafia (also known as La Eme) by murdering someone who had snitched on the gang - and that their own lives would be in danger if their identities were to be made known to the defendants and their cohorts.

Judges in Los Angeles Superior Court and an appeals court agreed. "The gang has ordered so many murders and there are so many witnesses in protective custody that the state cannot protect them all," said the appeals court in its 1997 ruling.

While agreeing that measures must be taken to secure witness safety, defense lawyers say a fair trial cannot be held if witnesses are not identified.

"Imagine yourself in a trial trying to defend someone where the witnesses against him, who have provided the only evidence of guilt, will not be made known. How can you then have any way of getting at the witnesses' motivations, veracity, and past patterns of integrity?" asks Gerstein.

Legal observers watching the case say Supreme Court justices are searching for a middle ground. That could mean disclosing the names of witnesses only a short time before a trial, or requiring defense lawyers to keep witness names secret from their clients.

But others say such compromises are problematic. There may be no way to ensure that such information does not get passed on to defendants, for instance.

"There is no easy middle ground in this," says Mr. Pugsley.

Such difficulty explains why the case has taken 2-1/2 years, and why it might ultimately land at the US Supreme Court. Having heard the case June 6, the California court must rule in 90 days, by Sept. 6.

The case has a greater chance of landing in the US Supreme Court if California justices uphold the lower courts, observers say.

"To agree with the lower courts that defendants cannot know the identity of their accusers encroaches on a long-established Sixth Amendment right," says Pugsley. "That finding would more likely drive this case higher."

(c) Copyright 2000. The Christian Science Publishing Society