Erie County District Attorney Frank A. Sedita III announced that 26 year-old David McKithen of Mineral Springs Avenue, in the City of Buffalo, was found guilty of Intimidating a Witness in the Third Degree and Tampering with a Witness in the Third Degree after a week-long jury trial before Erie Erie County Court Judge Sheila A. DiTullio. Although the jury was unable to reach a verdict on the underlying drug offense (i.e. the offense for which the defendant was indicted before he began intimidating witnesses), the jury convicted Mr. McKithen of wrongfully compelling a witness to avoid testifying against him by placing him in fear of physical injury.
In February 2013, McKithen was scheduled for trial on a single count indictment alleging possession of over half an ounce of crack cocaine. On the eve of trial, prosecutors learned that McKithen had orchestrated a campaign to intimidate and tamper with witnesses so that they would not testify during that February 2013 trial. Recorded phone calls from the Erie County Holding Center revealed that McKithen sent prior grand jury testimony and sworn statements of the witnesses, which were turned over to his attorney during the discovery process, to his then girlfriend with instructions for her to post the statements on Facebook. In the jailhouse phone calls McKithen made his intentions clear by declaring his campaign, “Nobody talks, everybody walks.” By posting the prior statements of the witnesses on Facebook, the defendant intended to reveal the witnesses’ cooperation with law enforcement and label them “snitches.”
When the grand jury testimony and sworn statements were posted on Facebook, both witnesses received threats to themselves and family members. Both witnesses testified that they had been labeled “snitches” and felt intimidated into not testifying against McKithen.
After learning of McKithen’s campaign to silence witnesses, an Erie County Grand Jury indicted McKithen for Intimidating and Tampering with witnesses in addition to the original drug charge.
McKithen is no stranger to the criminal justice system. McKithen was convicted of Attempted Burglary in the Second Degree in 2005, and then convicted in 2007 of Attempted Possession of Dangerous Contraband in the First Degree, while serving his sentence from the 2005 Burglary. McKithen was on Parole at the time of the drug arrest and has remained in custody since November 2011. Despite being behind bars, McKithen has continued his criminal behavior and has now been convicted of committing felonies while incarcerated for the second time since 2007.
The case was successfully prosecuted by Assistant District Attorneys Liam Dwyer and Seth Molisani, both of whom are assigned to DA Sedita’s Felony Trial Bureau. DA Sedita stated the following: “Yet again, the defendant began a course of witness tampering and witness intimidation soon after receiving copies of witness statements and witness testimony from his attorney. This case, as well as others, demonstrates why criminals should not be provided with information which reveals the identity of prosecution witnesses until such time as there is a trial. Witness tampering and witness intimidation undermines the integrity of the criminal justice system and must be aggressively prosecuted. I am hopeful that the judiciary shares these sentiments.”
McKithen faces a maximum prison term of 2 – 4 years when he is sentenced on December 13, 2013 at 9:30 a.m. before Judge DiTullio.