In Louisiana, reports Samantha Michaels at Mother Jones, Democratic State Sen. J.P. Morrell has introduced SB 146, a bill that would prohibit the use of a “material witness warrant” to temporarily lock up victims of sexual assault and domestic violence to ensure they testify in court. This may not happen often in New Orleans or elsewhere, but when it does the damage can be awful well beyond the psychological impact of rape and abuse victims being incarcerated for days, weeks, or months, sometimes in the same jail as the person charged with those crimes, sometimes while the accused is free on bail. Joel Gunter writes:
"Even a couple of days in jail can destroy someone's life," said Colleen Kane Gielskie, a spokeswoman for the American Civil Liberties Union in New Orleans. "It sets off a cascading effect, you can lose a job, lose custody of children, all kinds of things that can have lasting consequences."
Gielskie was referencing the case of an attempted gang murder, which is a more common situation for when material witness warrants are issued, as has been done in jurisdictions across the nation. But the effects of jailing in instances of abuse and sexual assault are even more damaging.
Witnesses held under these warrants aren’t protected by constitutional guarantees, including Miranda rights or access to a public defender. Typically a judge issues the warrant on the word of a district attorney without ever hearing from the crime victim. Indeed, getting a prompt appearance before a judge is another right the witness isn’t accorded, thus being victimized twice, once by the perpetrator and then by the system that is supposed to deliver justice.
Michaels cites the case of New Orleans accountant Renata Singleton. In 2015, after being held five days in jail in lieu of $100,000 bail, she showed up in court in an orange jumpsuit to testify in the case of her ex-boyfriend who was facing charges of abusing her. He, on the other hand, came to court in his street clothes, pleaded guilty, and spent zero time in the slam.
Gunter notes that the same year, 350 miles west in Houston, a rape victim afflicted with schizophrenia and bipolar disorder couldn’t handle testifying at the trial of the alleged perpetrator, broke down on the stand, said she couldn’t continue, and fled the courtroom. She was arrested and jailed for 27 days, during which she said she was beaten by guards and inmates.
The New Orleans City Council subsequently passed two resolutions calling on New Orleans Parish District Attorney Leon Cannizzaro to end the use of material witness warrants in sexual assault and domestic abuse cases. But he refused, in essence admonishing council members to mind their own business. Michaels writes:
This week, the Louisiana District Attorneys Association pushed back against the proposed legislation, arguing that it is sometimes necessary to detain abuse victims so they can help convict people who committed violent crimes. But critics point out that this practice traumatizes survivors who did nothing wrong. “It is most cruel way to try to entice testimony from someone,” New Orleans City Councilwoman Helena Moreno, a supporter of the legislation, told senators in a hearing on Tuesday, according to the Times-Picayune.
… Morrell pointed out that the city’s district attorney temporarily jailed at least two women in 2016 who had survived rape and domestic violence. “In each instance, the witness testimony was deemed critical to preventing a dangerous offender from walking free to victimize others,” DA Leon Cannizzaro said in a statement about his use of the tactic. He is currently fighting a lawsuit, filed in 2017 on behalf of Singleton and other plaintiffs who were jailed or threatened with detention. “One rape victim spent 12 days in jail before her first court appearance,” the suit says. “A victim of child sex trafficking was jailed for 89 days—including Christmas and New Year’s Day—before she had an opportunity to challenge her confinement.”
Prosecutors’ duty to keep violent criminals off the streets makes the use of material witness warrants understandable and in some cases essential, for instance, getting a highly reluctant Mafia soldier to testify against higher-ups. However, employing that tool against sexual and domestic violence victims adds to the many factors that keep the majority of them from reporting the crimes they have suffered in the first place.
Jessica Mindlin, an attorney at the Victim Rights Law Center told Michaels three years ago that it’s obvious that prosecutors need tools to ensure criminals are charged and tried. But, she said, “If what you are doing is creating barriers to victims coming forward and seeking help and safety, in the end all you’re doing is making your community even more dangerous, not less.”