Securing the out-of-state witness

When the case against Jane Smith1 hit my desk, it looked like another cut-and-dry murder case with a self-defense claim. The deceased was the defendant’s husband, and he died from three gunshot wounds to the chest. From the crime scene, we determined that Ms. Smith had shot her husband twice while he was backing down the hallway away from her. The final of the three shots had occurred while he was lying on his back on the floor. All three shots were in close range, with the pistol 2 to 4 inches from the victim when it was fired. Oh, and he was naked.
    The defendant called 911 in hysterics but didn’t mention self-defense—only that she shot her husband. Our concern about self-defense was based on the fact that lying next to her husband’s right hand was a buck knife. The sheath of the knife was found on the kitchen counter. We believed that because the knife was lying on top of blood—but there wasn’t any blood on it—and because she was 2 inches away when she shot him three times but she herself had no injuries, that the knife had been planted next to him after he died.
    While the forensic evidence was key in the investigation and prosecution of this case, there was a witness who proved to be very important. Susan Jacobs was the deceased’s girlfriend. (Suddenly a motive became clear.) Susan had worked for Jane and her (now deceased) husband and had spoken to both earlier in the day of the murder. Once she found out her boyfriend was dead, Susan skipped town and headed back to her home state of Arizona. Before taking that trip out of Texas, she had made a statement to investigators that our deceased had mentioned, the day of the murder, that he was planning on telling his wife—our defendant—that he was leaving her for good and wanted a divorce.
    Although not required by law, motive is a pretty nice thing to be able to present in a murder case, especially where there is a self-defense claim. So we needed to find Susan and make sure she would be available to testify. I asked my crack investigator, Carol Adkins, to start a search for her while I did some research into the law to find just how I was going to bring an uncooperative witness back to Texas.

The law
Chapter 24 of the Texas Code of Criminal Procedure sets forth the process by which we prosecutors have sent thousands of subpoenas to witnesses and how we ensure that the witnesses comply with those subpoenas. Let’s all be thankful it’s a simple process. We fill out a subpoena application to the clerk stating the names of the witnesses and their locations. Out-of-county subpoenas are addressed under Art. 24.16 of the CCP and are not much more difficult.
    Bringing an Arizona resident into Texas, however, is a little trickier. Out-of-state subpoenas are issued under the Uniform Act to Secure Attendance of Witnesses from Without State. This act, which has been adopted in all 50 states, the District of Columbia, Puerto Rico, and the Virgin Islands, has been codified under Art. 24.28 of the CCP, which sets forth all of the necessary steps in bringing out-of-state witnesses to Texas.

The witness
Carol, my investigator, has an uncanny ability to find people. People who fall off the grid, people who get lost or become homeless, and even people who don’t want to be found. Her work seems to involve one part training, one part people skills, and some art. In any case, Carol was able to find Susan in Arizona. Susan made it clear over the telephone that she didn’t want to be found. And she certainly didn’t seem to like the idea of discussing her affair with our victim or the murder that resulted from it. After some time she became a bit more cooperative, but she was adamant that she would not willingly come back to Galveston.
    A critical part of this process, while not specifically mentioned in Art. 24.28, is communicating with the prosecutor’s office where the witness is located. So our next call was to the prosecutor’s office in Pima County, Arizona. We explained our problem to an investigator there, who was sympathetic. He, in turn, connected us to a prosecutor in that office who has dealt with out-of-state subpoenas, and she agreed to help us draft orders and to have a judge sign them.
    It’s important to remember that your deadlines are important only to you. Without human contact in that other state, no one cares when your trial starts or by what date you need a witness. But if you have a local prosecutor on board, she can help meet those deadlines. In addition, every jurisdiction has its own preferred way of doing things, and this can extend to the form of motions and court documents. Normally I send prepared documents to the out-of-state prosecutor to make things easier, but in this case the prosecutor had some form motions she routinely used.

Texas’ court documents
The first thing I had to prepare on our end was an application for the out-of-state subpoenas. In our office, we simply call it an “application for process on out-of-state witness,” though sometimes it is called a “motion to secure the attendance of out-of-state witness.” That application requires several things. First, it is a sworn document. It should state who is making the request and that the witness is material and necessary. Additionally, the application should specify how long the witness is anticipated to be needed in Texas. My application started as follows:

I, Kevin Petroff, being duly sworn, depose and say, I am an Assistant Criminal District Attorney of Galveston County in the above styled cause; that the above criminal prosecution is being prosecuted in the 56th Judicial District court, which is a court of record in this State; that Susan Jacobs is a material and necessary witness and has material evidence for the prosecution and who has testimony concerning the alleged offense of murder, the prosecution of which before said Court is necessary for the proper administration of justice; that the witness is presently to be found at 1002 Main Street, City of Tucson, County of Pima in the State of Arizona, that her presence as a witness will be required for approximately eight days. …

Short, simple, and to the point. Our application went further to show the absence of any undue hardship on Susan, by including the following in the application:

The office of the Criminal District Attorney of Galveston County, Texas, stands ready and willing to provide transportation and lodging to Susan Jacobs upon receipt of the appropriate orders from a court of record in Pima County, Arizona, in order that Susan Jacobs come to Texas to testify as a witness in the above mentioned prosecution at the expense of the County of Galveston, Texas.

    An additional requirement in the application is to state that the witness is free from arrest and service of process. This requirement is set forth in §5 of Article 24.28, which protects the person who is being forced to come into Texas as a witness by making that witness exempt from arrest or service. This is also true if they are simply passing through Texas to testify in another state. Remember, all 50 states have codified these protections. My application had the following wording:

… that in order to arrive at this Court it will be necessary for the witness to pass through those States between Arizona and the State of Texas and such States, as well as the State of Texas, will under their laws give the witness protection from arrest and service of civil and criminal process in connection with matters which arose before her entrance into said State.

This protection naturally doesn’t extend to crimes that the witness commits while in Texas for her testimony, only those that occurred pre-subpoena.

The judge’s certificate
Along with the State’s application, the prosecutor should prepare the judge’s certificate for signature. This is the most important document in the process and is the basis for all decisions made in the witness’ home state. The judge’s certificate is a relatively short document (only about three paragraphs long) that is presented to the court in which the case is pending. The certificate must contain four things:
    1) a statement that the criminal prosecution is pending in the court or that a grand jury investigation has commenced or is about to commence;
    2) a statement that the requested witness is a material witness for the State in a criminal proceeding;
    3) the specific number of days that the witness will be required; and
    4) the seal of the court.
    The judge’s certificate is important because it is the whole of the evidence that will be used in the witness’ home state. A judge there must make these same findings and does so solely on the signed certificate from the Texas court. It’s important to explain exactly why the witness is material. For example, the certificate can include a brief summation of events, such as:
Said witness is material and necessary for the People of the State of Texas for said prosecution in that it is alleged that she will testify as to the fact that in Galveston County, Texas, on December 11, 1993, she was present during a shooting which took place in Room #205, Seahorse Motel, Galveston, Texas. She will describe the people in said room during the shooting.
    It’s hard for a court in another state to argue the materiality of a witness with the above finding. But it is also important to keep in mind that an uncooperative witness may try to argue that she is not in fact material to the case. Because you won’t be there to rebut those claims, you want to judge’s certificate to be as detailed and convincing as possible.
    Both our application and judge’s certificate described that Susan Jacobs had given a statement to police that she had an affair with the deceased and that he told her on the day of his murder that he was going to ask the defendant for a divorce. We described the circumstances of the murder and attached a copy of Susan’s statement to both documents. We worked to avoid making conclusory statements without support, but we made as convincing a case as we could to show the materiality of Susan’s testimony. Had we not had a witness statement to attach, I would have included an affidavit from my investigator regarding her statement.
    Once we had our judge sign the certificate and affix the court’s seal, I was able to send our application and the judge’s certificate to our contact in Pima County, Arizona. We spoke with the prosecutor and investigator there over the phone and gave them the latest information on Susan’s whereabouts. I knew from prior conversations with the Arizona prosecutor that their judge required us to include language as to why we needed her for the specified number of days, and that the judge wanted the witness statement or affidavit that I mentioned above. The Arizona prosecutor reviewed our paperwork and agreed to set it for a show-cause hearing. She knew our deadlines and was able to work with us in terms of scheduling.

The Arizona hearing
It’s difficult for me to give up this level of control over my case, but I couldn’t be a part of the Arizona hearing to determine if I was going to have my key “motive” witness for trial. Fortunately, due to my having made early and repeated contact with the Arizona prosecution, I knew I was in good hands. That prosecutor, Theresa, presented my application and judge’s certificate to the Arizona judge along with her motion and order setting a show-cause hearing. Just as the application existed to give the Texas judge sufficient information to sign the certificate, that certificate exists to give the out-of-state judge sufficient information to sign the order. Once the Arizona judge signed the show-cause order, it was time to serve our witness, Susan. The Pima County investigator served her with the order, and we were up and running. Susan would have to attend the show-cause hearing in Pima County.
    It should be noted that if a witness is more cooperative, she can sign a waiver of the hearing. That waiver would also act as an agreement to appear and testify in the requesting state. The Uniform Act doesn’t discuss this option, but it’s been an acceptable practice in most jurisdictions. If this is something you are considering, it’s important to check with the out-of-state prosecutors to see if the judge would allow such a waiver. The waiver normally states something similar to the following:

I, Susan Jacobs, of 1002 Main Street, City of Tucson, County of Pima in the State of Arizona, enter my appearance in the above-entitled matter in the District Court of the State of Arizona in and for Pima County, Arizona for the purpose of being ordered to appear. …

I, Susan Jacobs, further waive my right to a hearing on an Order to Show Cause and agree and consent that my testimony is essential to the trial of the above referenced action of the State of Texas, and that said testimony will cause me no undue hardship, and hereby agrees to appear before the 56th Judicial District Court. …

This wasn’t a feasible option for us, as I was not convinced that Susan was going to be cooperative enough to follow through. I felt that having an Arizona judge personally explain to Susan that she had to appear in Texas would help reinforce the importance of this matter.
    Soon we got word from the Arizona prosecutor that the judge held the hearing and signed a finding that: 1) Susan Jacobs is a material and necessary witness; 2) there is no undue hardship to her being compelled to attend and testify; and 3) she will be exempt from arrest and service of process. Again, the Arizona judge made these determinations solely from our judge’s certificate. With those three findings, the law requires the judge to issue the subpoena. Susan was now required to obey the subpoena, and we could ask for an attachment if she didn’t show.

The truly uncooperative witness
In the end, the Arizona hearing was all Susan needed to convince her that she should cooperate with us. A truly hostile witness, however, can present more problems. The Uniform Act does have a provision that allows the witness to be brought immediately before the judge in her county and for that judge to take the witness into custody and be delivered to a Texas peace officer. This is a pretty extreme measure to take, but it can be very helpful with a witness who is actively avoiding service. In this situation, the judge’s certificate must include a recommendation of immediate custody. Obviously, proving up the materiality of the witness and why custody is necessary is extremely important to convince a judge to take this measure. Also, timing is everything. Working with prosecutors in the witness’ state as to when to serve the witness and bring her before the court with paperwork in hand is essential for this process to work.

Conclusion
I’m very indebted to the great work of both my own investigator and the investigators and prosecutors in Arizona. The importance of maintaining these kinds of contacts cannot be overstated. I find that it’s always inspiring to see prosecutors working together across state lines to ensure that justice is done.

Endnote

1 Names, locations, and facts of the real case have been altered for illustrative purposes.