Senate Bill 2126

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; 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 Witness Protection Act for the State of Mississippi.

(2) It is the public policy of the State of Mississippi 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, 2015;

(b) A member appointed by the Lieutenant Governor of the State of Mississippi to serve a four-year term beginning July 1, 2015;

(d) A member appointed by the Board of Directors of the Mississippi Prosecutors Association to serve a two-year term beginning July 1, 2015; and

(e) A member appointed by the Mississippi Sheriff's Association to serve a three-year term beginning July 1, 2015.

At the expiration of the initial appointments, 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 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 Witness Protection Program, establish policies and procedures to ensure the efficient administration, the use of state funds, and to establish procedures to maximize and obtain federal funds to support the Witness Protection Program.

(3) The board shall meet once every quarter as its regular meeting and other times as needed either by telephone or in person, and shall keep minutes of the actions of the board and the spending 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 expenditure of state funds; the report shall not mention any identifying information with regard to participants in the Witness Protection 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 a public record and shall not be available for public inspection pursuant to the Freedom of Information Act. The board shall take steps to ensure that the identity of those individuals in the Witness Protection Program be 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 if so approved by the board, then with the advice and consent of the Senate at its next regularly scheduled legislative session. The Director of the Witness Protection Program shall run the day-to-day operations of the Witness Protection Program and coordinate the activities of state, county and municipal law enforcement to ensure the policy and provisions herein are enforced. The board shall promulgate job descriptions, rules and regulations regarding the daily activities and work performance of the Director of the Witness Protection Program.

The director shall account to the Witness Protection Board the activities of the Witness Protection Program at each of the regularly scheduled or emergency scheduled meetings of the board. The Director of the Witness Protection Program shall be responsible for the following:

(a) The training for state, county, municipal and other law enforcement in witness protection issues;

(b) The 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) The management of the budget of the Witness Protection Program, including obtaining the necessary funding for all activities;

(d) Ensuring the proper witness protection plan is developed and executed for an essential witness in an ongoing criminal investigation or criminal proceeding;

(e) The 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 Witness Protection Board requesting witness protection services for an essential witness 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 at risk of harm, and a proposed plan for protective services. The plan for protective services shall include, but is not limited to, alternative housing if necessary, alternative 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 required. 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, 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 Witness Protection Program and notify the District Attorney in writing of the board's actions. Once the board authorizes a witness into the Witness Protection Program, the Director of the Witness Protection Program 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 determined necessary to protect the safety of the essential witness without prior approval of the Witness Protection Board. The District Attorney may incur costs associated with that 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 temporary services authorized by the District Attorney. The provisions of this section only allow the temporary expenditure of funds for emergency action for a period of not more than ten (10) days. Any authorization of funds 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) Any necessary 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 an alternate housing or shelter, public housing or other residence;

(d) Transportation or storage of personal possessions during the term of temporary relocation;

(e) Basic daily living expenses which shall not exceed Thirty Dollars ($30.00) per day;

(f) Identify and secure any other necessary services to be provided through the Department of Human Services, Youth Court, public housing 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 chapter, except where it is determined that a temporary protective service is necessary pursuant to Section 4 of this act, the District Attorney or 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 pursuant to 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 in any form or fashion for any 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 witnesses 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 Witness Protection Program or the provision of protective services under such 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 officers and employees of the State of Mississippi who are providing protective services under this chapter;

(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 said services are to be rendered, and the level of protection afforded by law enforcement; and

(j) An express statement affirming the essential witness' understanding and agreement that should he or she 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 Witness Protection Board approval.

SECTION 7. Notwithstanding any general or special 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 of Mississippi and within the public housing system of the State of Mississippi, 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 inside 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 as those seeking public housing who are not in a Witness Protection Program.

SECTION 8. Notwithstanding any general or special 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 of Mississippi and within the public school district of the State of Mississippi, 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 inside the Witness Protection Program shall be afforded immediate placement in any public school district in other areas 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. (1) Nothing in this section shall be construed as creating a right, entitlement or cause of action on behalf of any person against any public employee, public agency, the State of Mississippi, or any agency responsible for the provision of services set forth in this act. The State of Mississippi, its officers and employees, and law enforcement personnel shall have full and complete immunity from suit based on any decision, act or omission relating to this act.

(2) Nothing in this act shall be construed to provide the essential witness with a cause of action or legal right of claim against any individual involved in the Witness Protection Program. Further, the witness will sign, as part of the witness protection services agreement, that he will hold harmless the State of Mississippi, 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 Witness Protection Program. The District Attorney shall not be required to provide the name of the witness but 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 identity thereof. The District Attorney shall not provide nor shall he 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 Witness Protection Program.

(2) The District Attorney shall not disclose in discovery or any other manner the identity of any essential witness in the Witness Protection 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 Witness Protection 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 only if the information can be produced in a redacted version which would prevent the identity of the essential witness or any provision of the witness protection services plan. Any order of the court requiring the production of any information relating to an essential witness in the Witness Protection Program shall only occur if the information can be provided without revealing the identity of the witness and without exposing the essential witness to potential reprisals or harm.

SECTION 11. The witness services agreement and protective services provided may include for services to be provided for up to one (1) year or until the risk and threat giving rise to the need for protective services has diminished, whichever occurs sooner. The District Attorney may, at the end of the first year, file an amended petition requesting 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 judicial court of this state in which an essential witness has been entered into the Witness Protection 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 any cause in which an essential witness is in protective services within one (1) year from the date of arraignment. If a court cannot provide a trial within one (1) year from the date of arraignment, good cause shall be written in an order explaining the delay, the reasons for the delay, and the order shall serve as authority for the essential witness to remain in the Witness Protection 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 Witness Protection Program, the court shall also specify in the order that further costs associated with the essential witness in the Witness Protection Program shall be paid for out of the circuit court budget for the length of the time of the continuance. The court shall not be authorized to continue a case where an essential witness is in the Witness Protection Program one (1) year from the date of arraignment, without also paying for the costs of said services for the essential witness.

SECTION 13. This act shall take effect and be in force from and after its passage.