The Inquirer's recent coverage of Philadelphia's criminal-justice system has drawn attention to the problem of witness intimidation. District Attorney Seth Williams and Sen. Arlen Specter have called for more resources to address witness intimidation and more serious penalties for those who engage in it. While there is debate about the extent of the problem, everyone agrees it should be subject to strong sanctions.

Yet it seems that, as far as the district attorney and a number of judges are concerned, the prohibition against silencing a witness to a crime does not extend to prosecutors and the courts.

This issue is now before the state Supreme Court in the form of a homicide case. During a voluntary, videotaped interview with Philadelphia police detectives, Jasaan Walker admitted shooting the victims, and he named his two brothers as accomplices. In addition to Walker, the police charged Dwayne Brown as a second shooter - even though Walker himself had said Brown was not involved.

Brown, who says he is innocent, was entitled to call Walker as a witness at his trial. Brown's defense could have argued that a man such as Walker, who voluntarily admitted to a killing and pleaded guilty with the advice of his lawyer, was credible not only in admitting his own guilt, but also in naming his brothers - and not Brown - as the other assailants. In our system, the jury is supposed to sort out such facts and decide whether the prosecution has proven guilt beyond a reasonable doubt.

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Vow of silence

But that was not to be. As part of a deal with prosecutors to avoid both the death penalty and life imprisonment, Walker - who had changed his story and said the other shooter was Brown - promised not to testify at Brown's trial. The deal was approved by a judge.

When a prosecutor makes a deal with a defendant, it is usually to entice him to testify against another suspect. Because such a deal may encourage false testimony, prosecutors are required to disclose all promises made to a witness.

In this instance, however, the prosecution knew Walker's testimony would be damaging to its case. At trial, Brown's defense would be permitted to reveal that Walker, the admitted shooter, had identified people other than Brown as his accomplices. The promise that the prosecution extracted from Walker - his promise not to testify - was intended to silence an important defense witness.

Then, to overcome the inconvenient fact that a defendant has a right to present witnesses at trial, Walker asserted his Fifth Amendment right not to incriminate himself.

But there could be no good-faith Fifth Amendment claim with respect to this crime, as Walker had already fully admitted it by pleading guilty.

Even so, the judge upheld Walker's Fifth Amendment claim and further ruled that his taped confession to a homicide detective was not sufficiently "reliable" to be heard by the jury.

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An egregious result

As Judge Richard B. Klein later stated in a dissenting opinion in Superior Court, this was a particularly "egregious" result. Not only was Walker's confession inherently reliable - indeed, it was corroborated by ballistics evidence - but the prosecution's entire case against Brown was based on precisely the same kind of recanted statements to detectives that the trial court prohibited the defense from using.

It's a crime to threaten harm to a witness in an effort to prevent him or her from testifying for the prosecution. Is it nevertheless OK to threaten a witness with harm - namely, a stiffer sentence - to keep him or her from testifying for the defense? A defense lawyer would be subject to sanctions for even suggesting to a prosecution witness that he or she has legal grounds not to testify.

A basic question posed by the Brown case is whether prosecutors and judges are exempt from the rules that they apply to others in the criminal-justice system. The state Supreme Court will eventually rule on the legitimacy of this apparent double standard. But it isn't too early to ask why this deal was approved by other judges, and why the district attorney is defending the "legal" silencing of a witness.

David Rudovsky is a professor at the University of Pennsylvania Law School. He can be reached at drudovsk@law.upenn.edu.