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Pa. affords reluctant witnesses little protection

| Friday, Oct. 26, 2012, 8:50 a.m.

Few legal protections exist for reluctant witnesses in criminal cases when authorities want to secure their testimony, experts say.

The case of a Penn Hills witness trying to avoid testifying against a man accused in the killing of a police officer proved that this week, advocates said.

"Unfortunately, there are times when the judicial system revictimizes victims," said Kristy Dyroff, a spokeswoman for the National Organization for Victim Assistance in Alexandria, Va. "I don't think that's anyone's intention or goal, but the process does that at times."

Allegheny County Judge Kevin G. Sasinoski on Wednesday put the lone witness in the fatal 2009 shooting of Penn Hills police Officer Michael Crawshaw behind bars until trial begins next month.

U.S. marshals late Tuesday detained Lamar Jay, 28, on a material-witness warrant. Prosecutors were seeking Jay to testify at the double-murder trial of Ronald Robinson, and Sasinoski on Monday delayed the trial when Jay failed to appear. The judge sent him to jail until the Nov. 26 trial because he is a flight risk. Jay missed numerous meetings with detectives in the case.

Legal experts called the use of material-witness warrants uncommon and used only in the most "extreme" cases. Some questioned whether Jay's case qualifies as extreme.

"The cases in which the material-witness statutes are most often used is when the witness said, ‘I'm not coming,' or flees or avoids subpoena or he's about to fly off to another country," said David Rudovsky, a senior fellow at the University of Pennsylvania law school in Philadelphia.

Although some states have laws protecting witnesses, Pennsylvania does not. In March, U.S. Reps. Trent Franks, R-Ariz., and Jim Costa, D-Calif., proposed an amendment to the Constitution that would give victims and affected witnesses certain rights, such as the right to be heard at public proceedings, and require courts to consider their safety.

Dyroff said jailing witnesses and victims sets a precedent.

"You never want something like this to discourage whether witnesses to future crimes come forward," she said.

It remains unclear whether the use of material-witness warrants is constitutional under the Fourth Amendment, said University of Pittsburgh law professor John Burkoff. The Supreme Court upheld a warrant last year in a case that alleged former U.S. Attorney General John Ashcroft directed prosecutors to use the warrants to detain terrorism-related suspects.

"In that case, a majority of the court made clear when and how a warrant could be used, although its constitutionality was not before the court," Burkoff said. "Nevertheless, they should be used sparingly."

Mike Manko, a spokesman for the District Attorney's Office, estimated the office requests about 20 such warrants a year, all for homicide and gun-related cases. That's a tiny fraction of the 17,000 criminal cases it prosecutes annually.

Robinson, 35, of Homewood is in jail awaiting trial on charges he killed Danyal Morton, 40, of Penn Hills and Crawshaw, 32, on Dec. 6, 2009.

Jay, Morton's roommate in 2009, testified at a preliminary hearing that he saw Robinson enter the house and go upstairs to confront Morton about a $500 drug debt before he heard gunfire and found Morton dead.

Police said Robinson fired an AK-47 at Crawshaw, the first officer to respond to the shooting, striking him several times as he sat in his patrol car.

Adam Brandolph is a staff writer for Trib Total Media. He can be reached at 412-391-0927 or abrandolph@tribweb.com.

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