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Man convicted of witness intimidation after grand jury testimony is posted on Facebook

Not too long ago, a witness could be scared into silence by a threatening phone call, an anonymous note or a rock through the window.

Now, witness intimidation has entered the age of social media.

The threat can come on Facebook.

In what prosecutors call a first in Erie County, a Buffalo drug defendant sought to intimidate witnesses by posting their testimony and statements against him on the social media site, along with their names.

“The bad guys are using technology to their advantage,” Erie County District Attorney Frank A. Sedita III said.

“It’s very troubling. They’re using technology to intimidate people. They used to show up at your door or leave a threatening note. Technology makes it easier to intimidate witnesses. All you have to do is have a keyboard.”

David M. McKithen, 26, obtained grand jury testimony and statements from his defense attorney. The defense attorney received the material during the discovery process and reviewed it with McKithen, a normal procedure.

McKithen sent the material to his then-girlfriend and future wife, Deyanna Daniels, to post on Facebook on the eve of his trial.

By posting the witnesses’ testimony and statements on Facebook, McKithen intended to reveal their cooperation with law enforcement and label them “snitches,” Sedita said.

After the material was posted, two witnesses received threats to themselves and family members, Sedita said. Both said they felt intimidated into not testifying against McKithen.

After a weeklong trial, an Erie County jury Tuesday convicted McKithen of third-degree intimidating a witness and third-degree tampering with a witness.

Sedita called the conviction the first of its kind here in which Facebook was used to make such material public in a bid to intimidate a witness.

He said some witnesses don’t want to testify because they fear retaliation.

“It’s the No. 1 impediment to me doing my job as a prosecutor,” Sedita said.

He said his office would not tolerate witness intimidation, “a crime that goes to the very integrity of the criminal justice system.”

The jury acquitted McKithen on the additional counts of intimidating and tampering with another witness, and it did not reach a unanimous verdict on a drug-possession charge.

McKithen, who has a prior felony conviction, faces a prison sentence of at least 1½ to three years and at most two to four years when he is sentenced Dec. 13 by Judge Sheila A. DiTullio. He is being held without bail.

If McKithen had been convicted of the drug charge, he would have faced up to 15 years in prison.

Sedita said he would discuss with his prosecutors whether to retry McKithen on the drug charge.

McKithen was indicted on just the drug charge after police said they found more than a half an ounce of crack cocaine in a car in which he was riding in with three other people. Police stopped the car Nov. 9, 2011, at a Grant Street roadblock.

He went to trial on the drug charge in February, and a jury could not reach a verdict.

Another indictment last May alleged that McKithen, before the initial trial, obtained the grand jury testimony and sworn statements of witnesses against him, and he had Daniels post them on Facebook on the day before opening statements.

McKithen made his intentions clear in recorded phone calls from the Erie County Holding Center, where he was in custody awaiting trial, Sedita said.

“Nobody talks, everybody walks,” the defendant said, according to Sedita.

“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,” Sedita said.

Defense attorney Michael L. D’Amico said it was the first case he has handled in which grand jury testimony was posted on Facebook. He said he knows of no other such case in this area.

He said the testimony was posted on Facebook for 15 minutes before it was taken down.

The defense attorney plans to appeal the convictions.

Both witnesses testified at the first trial.

Assistant District Attorneys Liam Dwyer and Seth Molisani said one of the two witnesses refused to answer questions at that trial because of the intimidation and that both testified at the second trial about the intimidation.

McKithen was convicted of intimidating and tampering with the witness who refused to answer questions.

The prosecutors said it is unclear how long the grand jury testimony had been on Facebook before it was removed. They said a woman testified that when she learned her son’s testimony had been posted, she called the mother of Daniels, and it was removed 15 minutes later.

Daniels, 24, faces trial in December before DiTullio on two counts of intimidating and tampering with witnesses.