Death threat does not excuse refusal to testify, Md. court says

Balancing the need for trial testimony against witness intimidation, Maryland’s second-highest court has held that a gang member’s parting death threat to a prosecution witness about to testify does not excuse him from being held in contempt of court for not testifying.

Such a departing threat lacks the imminence of deadly harm that would be necessary to give a witness the legal excuse of duress for refusing to testify, the Court of Special Appeals said in its reported 3-0 decision last week.

“In order for duress to constitute a defense to the commission of an illegal act, the duress by another person on the defendant must be present, imminent and impending, and of such a nature as to induce well-grounded apprehension of death or serious bodily injury if the act is not done.” Judge Stuart R. Berger wrote for the court. “The alleged duress must be of such a character as to leave no opportunity to the accused for escape. Critically, mere fear or threat by another is not sufficient nor is a threat of violence at some prior time.”

The appellate court expressly left unanswered whether fear of death could ever be an absolute defense against contempt for refusing to testify, saying the ruling addressed only an instance when the fear certainly was not.

“In so holding, we do not intend to minimize the plight faced by witnesses who fear retaliation as a result of their testimony,” Berger wrote.

“Witnesses’ fears are often well-founded, and this court is not blind to the seriousness of threats against witnesses,” Berger added. “Witness intimidation and retaliation are exceptionally serious societal problems, and in this opinion, we are not suggesting otherwise or minimizing that reality. Indeed, even when refusing to testify is not legally excusable, there are certainly circumstances under which a witness’s reticence to testify would be understandable.”

Berger added that a trial judge could mitigate the punishment for contempt in light of the witness’s understandable fear.

The Court of Special Appeals rendered its decision in affirming Travis Howell’s criminal contempt conviction for refusing to testify in Baltimore City Circuit Court against an accused murderer after a gang member told Howell that “you got to come out on the street sometime.”

The threat followed a Baltimore Sun article that named Howell as a “key witness” in the murder trial of his “friend” Freddie Curry in the killing of Raynard Benjamin, who allegedly kidnapped Curry’s girlfriend, according to the court’s opinion.

After receiving the courthouse threat, Howell – whom prosecutors had given immunity – refused to answer any of the prosecution’s questions, including even the kind of shoes he was wearing.

His duress argument having been rejected, Howell was found guilty in the circuit court of contempt and sentenced to five years in prison, with all suspended except for time served, and three years’ supervised probation.

The Court of Special Appeals also rejected the duress argument, saying the gang members did not present an “imminent” or “impending” threat to Howell, as they had been escorted out of the courthouse by security.

Raquel Coombs, a spokeswoman for the Maryland attorney general’s office, had no comment on the decision.

Howell’s appellate attorney, Baltimore solo practitioner Thomas M. Donnelly, did not return a telephone message seeking comment Tuesday.

Judges Alexander Wright Jr. and Andrea M. Leahy joined Berger’s opinion in Travis Howell v. State of Maryland, No. 459 September Term 2017.