ANNAPOLIS – Maryland’s top court will weigh the vexing issue of witness intimidation after agreeing this week to consider whether a death threat can excuse a prosecution witness from being held in contempt of court for not testifying.
The Court of Appeals said Tuesday it will hear the appeal of Travis Howell, who rebuffed a court order to testify after a gang member delivered a parting death threat as Howell was waiting to give testimony against an accused killed. Lower courts have ruled the departing threat lacked the imminence of deadly harm needed to give Howell the legal defense of fear-induced duress for refusing to testify.
Howell’s counsel successfully pressed the high court to hear the appeal, stating duress is a “viable” defense to all crimes except an intentional slaying and a Court of Appeals ruling on its applicability to witness intimidation would be in the “public interest” due to the scare tactic’s prevalence in these violent times.
“This issue is likely to be confronted by trial courts around the state with growing frequency due to the threats and acts of retaliation increasingly faced by witnesses who are compelled to testify at trials,” attorneys Thomas M. Donnelly and Kristin C. Tracy wrote in Howell’s petition for high-court review.
The attorneys added the duress defense is not limited to potential witnesses threatened at gun point not to testify but to those receiving credible verbal death threats.
“The immediacy of the feared harm does not have to rise to the level of someone holding a gun to the (contempt) defendant’s head at the time of the offense to avail himself of the duress defense,” Donnelly and Tracy wrote.
Rather, a defendant must show “some evidence that he actually believed that the duress placed him (in) immediate fear of death or serious bodily harm, that this belief was reasonable, that he had no opportunity to escape and that he committed the contemptuous act because of the duress,” added Donnelly and Tracy, of The Law Offices of Thomas M. Donnelly LLC in Baltimore.
An attorney for the state countered in papers filed with the high court that duress is no defense to refusing a court order to testify in a criminal case because witnesses can avail themselves of the “protective mechanisms of the court,” including security guards.
For duress to ever be a valid excuse, the threatened harm must be “present, imminent and impending (and) leave no opportunity … for escape,” wrote Assistant Maryland Attorney General Zoe Gillen White.
The verbal threat of “future” harm that Howell received is “no substitute for the required evidence that Howell reasonably believed he was in imminent danger and had no reasonable opportunity to escape that danger by seeking help from court personnel, such as an escort after his testimony,” White added.
That argument prevailed in the intermediate Court of Special Appeals, which affirmed Howell’s criminal contempt conviction in a reported, 3-0 decision in June.
But the Court of Special Appeals expressly left unanswered whether fear of death could ever be an absolute defense against contempt for refusing to testify, saying the decision 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,” Judge Stuart R. Berger wrote.
“Witnesses’ fears are often well-founded, and this court is not blind to the seriousness of threats against witnesses,” Berger added in the opinion joined by Judges Alexander Wright Jr. and Andrea M. Leahy. “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.
Howell was held in criminal contempt 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 of Special Appeals’ opinion.
After receiving the courthouse threat, Howell – whom prosecutors had given immunity – refused to answer any of the prosecution’s questions, even one about the kind of shoes he was wearing.
Howell was found guilty in the circuit court of contempt and sentenced to five years in prison, with all suspended but 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.
The high court is scheduled to hear arguments in the case early next year and is expected to render its decision by Aug. 31. The case is Travis Howell v. State of Maryland, No. 43, September Term 2018.