Bill Text: MS SB2132 | 2016 | Regular Session | Engrossed
Bill Title: Witness Protection Program; create.
Spectrum: Partisan Bill (Republican 1-0)
Status: (Failed) 2016-03-22 - Died In Committee [SB2132 Detail]
Download: Mississippi-2016-SB2132-Engrossed.html
MISSISSIPPI LEGISLATURE
2016 Regular Session
To: Judiciary, Division A; Appropriations
By: Senator(s) Wiggins
Senate Bill 2132
(As Passed the Senate)
AN ACT TO CREATE A WITNESS PROTECTION PROGRAM IN THE STATE OF MISSISSIPPI; TO PROVIDE FOR THE APPOINTMENT OF THE WITNESS PROTECTION BOARD; TO REQUIRE WITNESS PROTECTION AGREEMENTS; TO AMEND SECTION 25-41-3, MISSISSIPPI CODE OF 1972, TO CLARIFY THE EXCLUSION OF WITNESS PROTECTION AGREEMENTS FROM THE PUBLIC RECORD; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. (1) This act shall be known as the Mississippi Witness Protection Act.
(2) It is the policy of this state that truthful witness testimony is an essential and vital part of enforcing the laws of the State of Mississippi and to ensure the integrity of the criminal justice system. Witnesses who are in danger as a result of providing a statement to law enforcement or testifying at a legal proceeding concerning knowledge of a crime of violence, as defined by Section 97-3-2, shall be protected and provided assistance to ensure their safety and attendance at trial.
SECTION 2. (1) There is established a Witness Protection Board (hereinafter referred to as "the board") within the executive branch of the government of the State of Mississippi. The board shall consist of:
(a) A member appointed by the Governor of the State of Mississippi to serve a four-year term beginning July 1, 2016;
(b) A member appointed by the Lieutenant Governor of the State of Mississippi to serve a four-year term beginning July 1, 2016;
(c) A member appointed by the Attorney General to serve a one-year term beginning July 1, 2016;
(d) A member appointed by the Board of Directors of the Mississippi Prosecutors Association to serve a two-year term beginning July 1, 2016; and
(e) A member appointed by the Mississippi Sheriff's Association to serve a three-year term beginning July 1, 2016.
At the expiration of the initial terms, all subsequent appointments shall be for a term of four (4) years.
(2) The board shall oversee the State of Mississippi's Witness Protection Program (hereinafter referred to as "the program") and coordinate the efforts of state, county and municipal law enforcement agencies to protect the health, safety and welfare of essential witnesses. The board shall promulgate rules and regulations for the administration of the program, establish policies and procedures to ensure efficiency, proper use of state funds, and to maximize and obtain federal funds to support the program.
(3) The board shall meet once every quarter as its regular meeting and other times as needed either by telephone, video or in person, and shall keep minutes of the actions of the board and the expenditure of public funds. Each year the board shall provide a confidential and nonpublic report to the Office of the State Auditor, the Governor, the Lieutenant Governor, the Chairman of the Judiciary A Committee of the House of Representatives, and the Chairman of the Judiciary Committee Subdivision "B" of the Senate, explaining the board's expenditure of state funds; the report shall not mention any identifying information of participants in the program. All documents of the board, minutes of the board, witness protection agreements, audits and end-of-year reports prepared by the board shall not be public records and shall not be available for public inspection under the Mississippi Public Records Act of 1983. The board shall take steps to ensure that the identity and location of individuals in the Witness Protection Program is kept confidential at all times.
(4) The Attorney General shall appoint a Director of the Witness Protection Program, subject to majority approval of the Witness Protection Board, and upon approval by the board, then with the advice and consent of the Senate. The Director of the Witness Protection Program shall run the day-to-day operations of the program and coordinate the activities of state, county and municipal law enforcement to ensure that the policy and provisions of this act are enforced. The board shall promulgate job descriptions, rules and regulations regarding the daily activities and work to be performed by the Director of the Witness Protection Program.
The director shall account to the board the activities of the program at each of the regularly scheduled or emergency scheduled meetings of the board. The director shall be responsible for the following:
(a) Training for state, county, municipal and other law enforcement in witness protection issues;
(b) Coordination of the activities of government agencies to ensure the protection of an essential witness and the appearance of the witness at any necessary criminal proceeding;
(c) Management of the budget of the Witness Protection Program, including obtaining the necessary funding for all activities;
(d) Ensuring that a proper witness protection plan is developed and executed for an essential witness in an ongoing criminal investigation or criminal proceeding;
(e) Development of policies and procedures to ensure the day-to-day operations of the Witness Protection Program.
SECTION 3. In any criminal investigation or proceeding involving a crime of violence as defined in Section 97-3-2, the district attorney having jurisdiction over the investigation or proceeding may file a petition with the board requesting witness protection services for an essential witness who is necessary to complete the collection of competent evidence during a criminal investigation or criminal proceeding. The district attorney shall certify the witness's participation in the investigation or criminal proceeding, the reasons the witness is at risk of harm, a witness protection services agreement signed by the witness, and a proposed plan for protective services. The plan for protective services shall include, but is not limited to, housing if necessary, public education for the witness or any child of the essential witness if the witness has legal custody of the child, the projected costs of the protective services plan, the method of police protection if any, and the duration of witness protection services. The board members shall review the petition as soon as possible and either in a meeting or a telephone conference, by a vote of three (3) or more members, may grant the petition and ratify the plan or modify the plan in accordance with the rules and regulations established by the board. The board shall authorize the placement of the essential witness into the program and notify the district attorney in writing of the board's actions. Once the board authorizes the placement of a witness in the program, the director shall coordinate state, county, and municipal law enforcement agencies to secure and enforce the witness protection services plan, and finalize necessary arrangements to ensure the witness is protected and available for testimony when required.
SECTION 4. If the district attorney having jurisdiction over the investigation or criminal proceeding determines that exigent circumstances exist regarding an imminent threat to the safety of an essential witness, the district attorney may take appropriate temporary action to protect the safety of the essential witness without prior approval of the Witness Protection Board. The district attorney may incur costs associated with the temporary emergency action and shall inform the board of the action taken and related costs within ten (10) days of incurring the costs. Any costs incurred by the district attorney shall be submitted to the board for reimbursement and shall be paid by the board and reimbursed to the district attorney's office account or the county which paid for the temporary services. The district attorney, in making the determination of exigent circumstances, shall obtain an affidavit from a criminal investigation detective or chief of police or other law enforcement officer detailing that the participant is an essential witness to the investigation or prosecution of a criminal proceeding, that an imminent threat exists regarding the safety of the essential witness, and that the temporary action was necessary for the protection of the individual and the integrity of the investigation. The affidavit shall be attached to any request for reimbursement to the board for the temporary services authorized by the district attorney. The provisions of this section allow the temporary expenditure of funds for emergency action for not more than ten (10) days. Reimbursement beyond the ten-day emergency-authorization period shall be by approval of the board only.
SECTION 5. Protective services provided to an essential witness may include, but are not limited to, the following:
(a) Armed protection or escort, marked or unmarked surveillance, periodic visits or contact by law enforcement officials before, during or after conclusion of an ongoing criminal investigation or criminal proceeding;
(b) Expenses associated with physical relocation to alternate housing or shelter, public housing or other residence;
(c) Payment of a reasonable housing expense if no public housing is available;
(d) Transportation or storage of personal possessions during the term of temporary relocation;
(e) Basic daily living expenses not to exceed Thirty Dollars ($30.00) per day;
(f) Any other necessary services to be provided through the Department of Human Services, Youth Court, public housing agency or any other state or federal agency;
(g) Any other provisions necessary for the proper protection of the essential witness, as determined by the district attorney or the board.
SECTION 6. (1) Before witness protection services are provided to an essential witness under this act, except where it is determined that a temporary protective service is necessary under Section 4 of this act, the district attorney or the Director of the Witness Protection Program shall enter into a written memorandum of understanding with the essential witness detailing the witness protection services plan. If temporary protective services have been provided under Section 4 of this act, a written memorandum of understanding shall be entered into as soon as practicable.
(2) The written memorandum of understanding between the state and the essential witness shall be signed by the district attorney or his designee, the witness to be afforded protective services, the law enforcement agency involved in the criminal investigation or criminal prosecution, the witness's attorney if he has one, and the witness's guardian if the witness is a minor. The written memorandum of understanding shall not be considered a grant of immunity for a criminal act performed by an essential witness before, during or after the written memorandum of understanding. The written memorandum of understanding shall include, but not be limited to, the following:
(a) The responsibilities agreed to by the essential witness while receiving protective services;
(b) That the essential witness shall provide complete and truthful information to all law enforcement officials related to all relevant investigations and to testify completely and truthfully in all appropriate proceedings;
(c) That the essential witness shall not commit any criminal activity or violate any law of the United States or any other state;
(d) That the essential witness shall take all necessary precautions to avoid making known to others his participation in the program or the provision of protective services under the program;
(e) That the essential witness shall comply with any legal obligations or civil judgments against the essential witness;
(f) That the essential witness shall cooperate with all reasonable requests of state and local officers and employees who are providing protective services under this act;
(g) That the essential witness shall not disclose any probation or parole conditions, obligations, or responsibilities;
(h) That the essential witness shall regularly inform the investigating agency or district attorney's office of places of employment and current address of the witness;
(i) A written explanation of the services offered, the manner in which the services are to be rendered, and the level of protection afforded by law enforcement; and
(j) An express statement affirming the essential witness's understanding and agreement that should the witness violate any term of the witness protection services plan, then the plan shall be null and void and any further assistance shall cease immediately without court order or board approval.
SECTION 7. Notwithstanding any law to the contrary, or any regulation, rule, or ordinance, if a petition and plan and agreement for witness protection services are approved by the board and the essential witness requires relocation within the state to a public housing facility, the relocation shall be effectuated without regard to any impediment, including, but not limited to, any existing waiting list, any income qualifications, or any other reason prohibiting the relocation. Any witness assigned to the Witness Protection Program shall be afforded immediate housing in any other areas of the state without being subjected to a waiting list or other qualification requirements imposed on those seeking public housing who are not in a witness protection program.
SECTION 8. Notwithstanding any law to the contrary, or any regulation, rule or ordinance, if a petition and plan and agreement for witness protection services are approved by the board and the essential witness requires relocation within the state to a public school district, the relocation shall be effectuated without regard to any impediment, including, but not limited to, any existing waiting list, any income qualifications, or any other reason prohibiting the relocation. A witness placed with the Witness Protection Program shall be afforded immediate placement in any public school district in any area of the state without being subjected to a waiting list or other qualification requirements imposed on those seeking placement who are not in a witness protection program.
SECTION 9. Nothing in this act shall be construed to provide an essential witness with a cause of action or legal right of claim against any individual involved in the program. Further, the witness will agree, as part of the witness protection services agreement, to hold harmless the State of Mississippi and any of its agents or officers for any acts of a third person related to any damage inflicted upon the essential witness.
SECTION 10. (1) Records, minutes, and documents of the board and all records relating to petitions provided to the board shall be confidential, shall not be public records, and shall not be produced in discovery in any criminal proceedings. The district attorney shall provide to the defense attorney in the particular criminal proceeding notice advising that a witness involved in the ongoing criminal proceeding has been declared an essential witness and due to imminent threats has been placed in the program. The district attorney shall give notice that an essential witness is in the Witness Protection Program and may give the transcribed testimony of the essential witness only if doing so will not reveal the location of the essential witness. The district attorney shall not provide nor shall be ordered by any court to disclose the witness protection services plan, the relocation services provided, the security services provided, or any other actual services provided to an essential witness in the program.
(2) The district attorney shall not disclose in discovery or any other manner the location of any essential witness in the program, or any provision of the witness protection services plan for the essential witness. The court with jurisdiction of the criminal proceeding in which an essential witness is in the program may authorize limited discovery, if a motion is filed by the defense attorney objecting to the nondisclosure by the district attorney. The court, after hearing the arguments of the attorneys in a nonpublic hearing, may order the production of any plea agreements with the essential witness, any resolution of criminal charges against the essential witness, and the criminal history of the essential witness. A court may require the production of information relating to an essential witness in the program only if the information can be provided without revealing the location of the witness and without exposing the essential witness to potential reprisals or harm.
(3) If an essential witness is in the program, either party to the legal proceeding may move for a video deposition or stenographic deposition, or both, to preserve the testimony of the witness or to ensure discovery by the defense due to the limited nature of discovery due to the essential witness's participation in the program. The court shall order the deposition at a mutually convenient time and place in a manner to ensure the safety of the witness and the security of the defendant. The party requesting the deposition shall pay all costs associated with the deposition. The court shall allow no more than one (1) deposition of the witness.
SECTION 11. Protective services provided under the witness services agreement may not be provided for longer than one (1) year or until the risk and threat giving rise to the need for protective services has diminished, whichever occurs first. The district attorney, at the end of the first year, may petition for an additional year of services for the essential witness if the risk of harm or imminent threat is still present. No individual shall remain in the Witness Protection Program or receive protective services for longer than two (2) years.
SECTION 12. (1) Any case on the docket of a court of this state in which an essential witness has entered the program shall receive priority status and shall not be continued from its trial date unless good cause is shown in the discretion of the court. The courts of this state shall endeavor, within their ability, to comply with the fundamental constitutional rights of the defendant and to bring to trial within one (1) year from the date of arraignment any cause in which an essential witness is in the program. If a court cannot provide a trial within one (1) year from the date of arraignment, the court shall enter an order setting out reasons for the delay that constitute good cause, and the order shall serve as authority for the essential witness to remain in the program until the trial is completed, the case resolves by plea, or the charge is dismissed.
(2) If the court enters an order authorizing the delay or continuance of the trial beyond one (1) year from the date of arraignment on a case where an essential witness is in the program, the court shall also specify in the order that further costs associated with the continuation of the essential witness in the program shall be reimbursed from the circuit court budget for the length of the time of the continuance. A court is not authorized to continue a case where an essential witness is in the program one (1) year from the date of arraignment without also paying for the costs of the continued protection services for the essential witness.
SECTION 13. Section 25-41-3, Mississippi Code of 1972, is amended as follows:
25-41-3. For purposes of this chapter, the following words shall have the meaning ascribed herein, to wit:
(a) "Public body" means any executive or administrative board, commission, authority, council, department, agency, bureau or any other policymaking entity, or committee thereof, of the State of Mississippi, or any political subdivision or municipal corporation of the state, whether the entity be created by statute or executive order, which is supported wholly or in part by public funds or expends public funds, and any standing, interim or special committee of the Mississippi Legislature. The term "public body" includes the governing board of a charter school authorized by the Mississippi Charter School Authorizer Board and the board of trustees of a community hospital as defined in Section 41-13-10. There shall be exempted from the provisions of this chapter:
(i) The judiciary, including all jury deliberations;
(ii) Law enforcement officials;
(iii) The military;
(iv) The State Probation and Parole Board;
(v) The Workers' Compensation Commission;
(vi) Legislative subcommittees and legislative conference committees;
(vii) The arbitration council established in Section 69-3-19;
(viii) License
revocation, suspension and disciplinary proceedings held by the Mississippi
State Board of Dental Examiners; * * *
(ix) Hearings and
meetings of the Board of Tax Appeals and of the hearing officers and the board
of review of the Department of Revenue as provided in Section 27-77-15 * * *; and
(x) The Witness Protection Board established in Section 2 of this act.
(b) "Meeting" means an assemblage of members of a public body at which official acts may be taken upon a matter over which the public body has supervision, control, jurisdiction or advisory power; "meeting" also means any assemblage through the use of video or teleconference devices.
SECTION 14. This act shall take effect and be in force from and after July 1, 2016, and shall stand repealed on June 30, 2016.
