Witsec (30 page)

Not long after Rivera’s broadcast, the parents of one of Pruett’s murder victims sued Shur, Safir, Chavez, and the Marshals Service, claiming each was responsible for their son’s murder because they had helped relocate Pruett. But a federal appeals court rejected the case after ruling that the defendants were not responsible.

Meanwhile, Safir won a key ruling in his still unresolved $10 million slander suit against Rivera and ABC over the first
20/20
show, “Hostages of Fear.” A Virginia judge rejected ABC’s attempt to remove the case from a state court to a federal court, and set a date for the case to go before a jury.

Safir was convinced that if ABC got the case transferred into a federal court, he’d lose. On the morning the trial was scheduled to start, the network paid Safir an undisclosed cash settlement. The court record was sealed and both parties were barred from discussing how much Safir had received.

“I wanted to be fair in this book,” Shur said as these pages were being written, “so I decided to give Rivera a chance to respond to my written account of
what happened.” This is Rivera’s reply exactly as he gave it to us to print:

“I found Rivera’s reply ironic,” Shur continued. “What does Howard Safir’s later role as New York City police commissioner have to do with the fact that Rivera substituted my answer to a question about debt collection into his report about victims of a horrible crime? When I was in law school, a lecturer told us that if the facts are on your side, yell facts; when the law is on your side, yell law; and when nothing is on your side, just yell like hell. That’s Geraldo Rivera.”

Pruett was sentenced to four life terms for the murders of his wife, bank clerk Peggy Lowe, and the two 7-Eleven clerks in Colorado. An Arkansas judge sentenced him to death for killing Bobbie Robertson. Seventeen years later, a federal judge set aside Pruett’s death sentence, ruling that pretrial publicity had prevented him from receiving a fair trial, but a higher court overturned the judge’s ruling. It said Pruett had generated much of the publicity himself when he bragged on camera about his “mad dog” rampage. In April 1999, Pruett was executed by lethal injection in Arkansas.

A
few months after Marion Pruett’s rampage, WITSEC came under attack again, and Shur found himself being criticized about the sort of criminals he was letting into the program. Thomas “Big Red” Bryant, a self-admitted murderer, who had once casually cooked himself scrambled eggs while his crime partner beat and terrorized an eighty-six-year-old man during a house burglary, was one reason why.

A former motorcyle gang member, Bryant was one of seventeen government witnesses called to testify by federal prosecutors in San Francisco in 1982 against the Hell’s Angels motorcycle club. They had accused thirty members of the notorious biker club of conspiring to manufacture and distribute narcotics. They were charged under the RICO statute in an effort to disband the entire club. Like Bryant, most of the other witnesses were former Hell’s Angels themselves, and when the government paraded them through the courtroom, they sickened the jury.

A turning point in the trial came when Bryant admitted during his testimony that a DEA agent had visited him the night before to give him a briefcase stuffed with $30,000 in small bills. The cash, Bryant said, was a reward paid to him in return for his testimony. That admission stunned defense attorneys, who quickly accused
the DEA of buying testimony. When the defense grilled each of the other prosecution witnesses, it discovered that every one of them had been paid, too. The DEA had shelled out a total of $280,000 in “rewards.” The witnesses were also receiving other “inducements.” Several said federal prosecutors had agreed to reduce or dismiss criminal charges pending against them. Nearly all had been accepted by Shur into WITSEC and were being given new identities and relocated.

The first Hell’s Angels trial ended in a hung jury. In a second trial, the jury refused to convict any of the accused. Instead, jurors lashed out at the prosecutors after the trial for depending on such loathsome witnesses to make their case. The jury foreman called Bryant and the others “despicable and beneath contempt.” Even the judge said he had been offended by the DEA’s cash payments. As expected, defense attorneys were blunt. “This is a case,” said one, “where the government simply went out and bought the testimony it wanted to use.” A newspaper article described WITSEC as a “carrot” used to recruit witnesses.

Shur had not been told about the rewards in advance and was furious. He wasn’t opposed to the government using rewards, but he felt the DEA had been out of line. “Giving rewards before someone testifies is outrageous and wrong,” he explained. “Rewards should only be awarded after someone testifies and under strict conditions: A witness should never be told in advance he is definitely going to receive one, and he should never be told before he testifies what amount he will be awarded.”

Shur knew jurors were naturally suspicious of criminals who changed sides and were now testifying against their friends. Studies showed most jurors were
predisposed to distrust criminal witnesses, especially if they appeared to be profiting from deals made with prosecutors. At the same time, as a Justice Department attorney, he understood that prosecutors sometimes had little choice but to reach down into the gutter to recruit criminal witnesses. Notorious cases such as those of hippie-cult leader Charles Manson and the serial killer known as the Hillside Strangler never would have ended in conviction if prosecutors in California had not cut deals.

“The fact that most WITSEC witnesses weren’t Boy Scouts,” Shur said later, “did not mean they automatically lied for the government. The same was true about witnesses who were murderers or extremely violent. When I first joined the Justice Department, an old-time narcotics investigator told me the best case he had ever made was based on eyewitness testimony by a schizophrenic. He said, ‘Shur, don’t ever throw a nut out of your office.’ Jimmy the Weasel had been a hit man and he could be violent, but that didn’t have anything to do with whether or not he was telling the truth on the witness stand.” The question always boiled down in Shur’s mind to corroboration, preferably from wiretaps or from other witnesses who weren’t criminals.

After the failed Hell’s Angels case, Shur decided federal prosecutors and agents had to disclose in advance if a witness seeking WITSEC protection had been promised or paid a reward. He also required them to disclose to his office the details of plea bargains.

Shur moved to tighten WITSEC in other ways. He announced that relocated witnesses could no longer be used in undercover operations or as informants without his specific permission. “We discovered we were moving some witnesses two or three times because
they were getting involved in new cases after they were relocated,” he said. “We would move a witness from Brooklyn to Minneapolis, and an agent in Brooklyn would call a buddy of his in Minneapolis and tell him that he had just sent him a great guy to use undercover. The next thing you knew, the Minneapolis agent was using this witness to make cases. Here we were, trying to get a witness’s kids into school and find him a job, only to have him call us saying he was being threatened again and needed to be moved because of some local case.” Not only was it dangerous to keep using WITSEC witnesses, it was expensive. By the early 1980s, it cost WITSEC an average of $40,000 each time it relocated a witness.

“Some witnesses loved the excitement of helping prosecutors,” said Shur. “I think it gave them the same exhilaration they felt when they committed crimes. I’d hear a witness talk about ‘our case’ and say things such as ‘we got to get this guy.’ One witness told me he had his own desk and his own secretary in a U.S. attorney’s office.”

Another change in WITSEC had evolved almost on its own. With the opening of WITSEC prison units, WITSEC had become a two-step program. Witnesses could no longer assume they would be automatically given new identities and be relocated after they were released from prison. Shur would decide whether they needed to be relocated or if they could simply be paroled, taking into consideration their conduct in the WITSEC unit and whether he felt they would still be in danger if they were released.

In late 1983, yet another Senate subcommittee held public hearings to investigate WITSEC, the fourth set in five years, and this time, the hearings led to passage of the Witness Security Reform Act of 1984.
Written primarily by Senator Thad Cochran, it formalized many of the internal procedures that Shur already had implemented. There was one practice the law toughened. Because of the Pruett murders, the law required Shur and his staff to prepare a formal, written “risk assessment” of every witness, prisoner or non-prisoner, entering WITSEC. As part of this evaluation, each witness was required to undergo a battery of psychological tests administered by a psychologist. The examiner would then try to predict in a report given to Shur whether or not the witness would pose a threat to the community if he was relocated. It was Cochran’s way of trying to keep WITSEC from turning another Pruett loose, and it quickly led to a disagreement between Shur and Howard Safir.

Safir said he wanted to use psychologists from the private sector to evaluate potential witnesses. But Shur argued that federal Bureau of Prisons psychologists were better trained to evaluate criminals and were less likely to be fooled. When Safir dug in his heels, Shur sent a detailed memo to attorney general Benjamin Civiletti explaining the benefits of using BOP psychologists. In the end, the two men reached a friendly compromise: Safir retained the right to call in outside psychologists whenever he believed a witness was an obvious risk. Shur agreed to review the outsider’s opinion but not be obligated to accept its conclusions.

But the two men were soon butting heads again when Safir announced that he wanted his WITSEC inspectors to decide who got in WITSEC and who was rejected. “My inspectors were the frontline troops,” Safir recalled. “They were the experts in the field who were actually dealing with these witnesses day in and day out, yet they had no input whatsoever in deciding whom Shur approved for relocation. That didn’t make
sense to me. In my opinion, it was pretty easy to tell right out front that some of these witnesses were not going to make it, yet we had to spend our time and resources, and put our people at risk, because some prosecutor wanted to use them as a witness. I told Gerry Shur that we wanted the right to veto any witness who we didn’t think was a good candidate for relocation.”

Shur was not about to surrender his power over who got into WITSEC. “This wasn’t about ego,” he explained later, “it was about giving the Marshals Service too much power. I couldn’t have inspectors telling a U.S. attorney that he couldn’t prosecute a mob case because the Marshals Service had decided it didn’t want to protect or relocate a key prosecution witness.”

Some inside the Justice Department saw Safir’s move as an attempt to seize control of the entire program. “Howard had done a magnificent job revamping the WITSEC branch and getting his inspectors trained in how to handle witnesses,” a former top WITSEC inspector who worked in the Marshals Service headquarters said. “He didn’t think Shur needed to be calling the shots, and there were others inside the Marshals Service who were, quite frankly, sick and tired of getting the heat for relocating obvious killers like Pruett. The real problem was federal prosecutors. They only cared about racking up convictions. Some didn’t care what sort of filth they put on the stand as long as a witness could get them a conviction. Then the Marshals Service was stuck dealing with this riffraff after the prosecutors had closed their briefcases and gone home. It only made sense that the people who actually had to do the job should have power over who got in.”

Another Marshals Service manager who worked at its headquarters at the time put it like this: “In the
early days, Shur let too many witnesses into the program. He always erred on the side of safety when it came to protecting witnesses. If a U.S. attorney out there said a witness needed protection, it seemed that Shur automatically let him in, and some of these witnesses were dangerous and awful.” A WITSEC inspector would later recall how he picked up a witness, as ordered, from a U.S. attorney’s office one afternoon and had an ice pick held to his throat without warning minutes later while speeding down an interstate thoroughfare. Luckily, he talked the witness out of killing him.

Shur would later dispute claims that he had been lax about letting witnesses into WITSEC. “Howard’s inspectors often assumed that I approved every request I received from a prosecutor and that I never told them no. That was simply not the case. I often rejected a proposed witness for any number of reasons, such as the witness’s testimony not being sufficiently significant, or we already had too many witnesses in a case, or in my mind the witness posed too great a threat of future violence. Naturally, I wouldn’t notify the Marshals Service of the cases they were not going to be involved in, and since they didn’t see the denials, they assumed I was approving everyone.”