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Aug 23, 2009 (The Salina Journal - McClatchy-Tribune Information Services via COMTEX) -- NOSH | Quote | Chart | News | PowerRating -- The walk to the witness stand in Saline County District Court may be one people are becoming increasingly unwilling to take.

So far this year, several cases involving defendants accused of violent crimes have been hampered by a lack of witnesses willing to testify to what they saw or heard:

n In January, prosecutors accepted a plea agreement that allowed 16-year-old Cesar Ramos to serve 10 years in prison for attempted second-degree murder, aggravated assault and two counts of aggravated endangerment of a child. Ramos, now 17, pleaded guilty to the charges after he shot another teen repeatedly in a public park.

Cesar's brother, Juan Ramos, 17, who was present when the shooting occurred, pleaded guilty to aiding a felon and served nine months in a juvenile correctional facility.

Prosecutor Amy Hanley, an assistant county attorney at the time, said the county attorney's office decided to drop attempted first-degree murder charges and enter plea negotiations for a lesser sentence after no one who had been at the park during the shooting appeared at a preliminary hearing. The hearing was delayed for an hour to give police officers time to pick up the victim at his home and another witness at school.

n In June, Saline County Attorney Ellen Mitchell filed a motion to cite a robbery victim for contempt of court when he failed to appear to testify at a preliminary hearing for brothers Shawn Humphrey, 26, and Adam Humphrey, 25. The preliminary hearing was rescheduled for July, and the witness testified that the Humphreys were two of four men who forced their way into his home armed with a baseball bat, a gun and a machete. The men were bound over for trial, which is set for 9 a.m. Sept. 1.

A witness murdered

n In July, witnesses subpoenaed to support aggravated assault charges filed against Antwon M. Pierce, 29, and Rickey L. Hopkins, 24, did not show up at court on two occasions, forcing prosecutors to drop the charges. Both men still face charges of attempted second-degree murder but have entered plea negotiations with the state. They are accused of shooting at Alfred "Al" Mack Jr. and Jonathan King in May.

Mack, 24, who also had been subpoenaed to testify against Pierce and Hopkins, was found murdered in his apartment June 13. No arrests have been made for Mack's murder. Pierce and Hopkins were in Saline County Jail at the time of his death.

n Also in July, a preliminary hearing for Kenneth L. Most, 20, accused of shooting at an occupied house, was postponed when the homeowner didn't show up in court to testify. Mitchell said she would issue contempt of court citations for witnesses who did not appear and subpoena them again.

n Last week, the court granted a motion designed to ensure that a reluctant witness will appear to testify at the third trial for Cameron A. Nelson, 21. Nelson, who is accused of second-degree murder for the shooting death of Mark H. Simpson, 38, has had two previous trials end in mistrial because juries could not reach a unanimous verdict.

Mitchell is requesting that the court place a bond on the witness, who prosecutors believe was in the car from which the shots were fired, to ensure that he will appear to testify at the trial, set to start Sept. 9.

The man testified at Nelson's first trial, but law enforcement officers were unable to locate him with a subpoena for the second trial. He has been subpoenaed for the third trial, but prosecutors believe further steps are necessary to ensure his appearance in court.

Serving court subpoenas

The Saline County Sheriff's Office serves district court subpoenas. Sheriff Glen Kochanowski said two officers -- one full-time, one part-time -- are assigned to serve paperwork and subpoenas for district court.

In June, the officers served 413 court subpoenas, not counting law enforcement officers being called to testify. In July, 407 subpoenas were served.

Teresa Smith, civil process specialist, said deputies return subpoenas to court if someone at the address tells them that person does not live there or they have attempted to serve a subpoena unsuccessfully four times or more at different times of the day. She said she didn't know how many subpoenas couldn't be served during that time because they are not tracked separately from other court paperwork.

"With subpoenas, we're fairly successful with getting most of them served, but it's not uncommon to have to return them," Kochanowski said. "People are so mobile and moving continuously that you don't know where they're at."

As more violent crimes are being prosecuted, witness reluctance is probably also going to be more common, Kochanowski said.

"With some of the trials, when you look at the severity of the things that have happened, people may act out of fear or change their minds," he said. "You never know what might happen."

Salina Police Chief James Hill referred a request for comment from his department to Mitchell. Mitchell said she cannot speak about ongoing court cases and declined to comment for this story. Saline County District Court Chief Judge Daniel Hebert also declined to comment.

It was ridiculously hard

Hanley, who is now an assistant Kansas attorney general, said witness problems are nothing new in district court.

"It was ridiculously hard to get witnesses in the drug cases I used to prosecute here," she said. Witnesses are fearful of implicating someone who could be dangerous or implicating themselves, she said. Drug addiction also affects a person's perceptions, which diminishes his or her credibility as a witness.

Concerning the Ramos case, Hanley said she would have taken it to a jury if she could have counted on having witnesses who would appear in court to testify. None of the four people subpoenaed for the preliminary hearing would have appeared in court if police officers hadn't escorted them there, she said.

"One eye witness was instructing people not to come to court -- that they could handle it on the street instead," she said. "We uncovered that in our investigation. There was active discouragement of cooperation."

Handle it on the street

District Judge Jerome Hellmer, who presided over Ramos' court appearances, said he could not comment because the case is currently on appeal.

When officers did bring in the Salina youth who was the victim of the shooting, he was evasive about identifying the person who shot him.

"You can go out and pick up witnesses like we did, but we aren't going to put words in their mouths," Hanley said. "I know fear played a part in it, but there's also a feeling amongst some people that this kind of thing is better handled on the street than in the court room."

When witnesses refuse to cooperate, the court system's alternatives are significantly limited, she said. The court operates on rules of evidence, and the accused has a right to confront his accusers and have them cross-examined.

You have no case

If witnesses willing to testify truthfully can't be found, the prosecution can't build a case strong enough to prove a defendant is guilty and should be behind bars.

"When you have an uncooperative victim, you have no case, bottom line," said Ruben Salamanca, president of the Kansas Gang Investigators Association.

Salina Police Officer A.V. Plank, who is assigned to Central High School, serves as a regional vice president for the organization. Hill declined to allow him to be interviewed.

Salamanca, of Topeka, a certified expert on Hispanic gangs, said he had been contacted to serve as an expert witness if the Ramos case had gone to trial. At Ramos' sentencing, Hellmer said Ramos had been expelled from high school for throwing gang signs and fighting on school property.

Salamanca said there are four basic elements to a universal code of conduct common to all gangs:

n Don't be a snitch

n Don't cooperate with law enforcement

n Handle your own problems

n No insult goes unanswered

The fear of testifying against a violent person in custody with strong connections to other violent people not in custody is reasonable, he said. But a witness to a crime can't ensure his or her own safety or the safety of the community by avoiding testimony or making up a story, he said.

Gang members who decide to cooperate with police have to break ranks and will no longer be welcome in their neighborhood, Salamanca said. He said he has seen gang members step up and testify, but to ensure their safety they usually have to relocate and make a new start in a new city.

The imaginary insult

Cases involving gang violence present a particular challenge to police and the court system, so in 2007 Kansas lawmakers strengthened penalties and increased bonds for defendants with known gang affiliation.

Gang cases are often provoked by what law enforcement officers call the "imaginary insult," Salamanca said. In the Ramos case, defense attorney C. Richard Comfort said at sentencing that the shooting occurred as an over-reaction to "actions of disrespect."

"To the normal person, the idea of getting worked up over a sign or signal is just ridiculous, but to a gang member it's the equivalent of insulting his mother or giving him the middle finger," Salamanca said.

n Reporter Erin Mathews can be reached at 822-1415 or by e-mail at emathews@salina.com.

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