Your Fifth Amendment at Work

Murray Newman (why did his faithful commenters not nominate Life at the Harris County Justice Center, which has been doing sterling work all year, for the ABA Blawg 100…other than because they’re pendejos?) brings interesting news from the third floor of 1201 Franklin, where dwell grand juries:

Item the first: “Today, Special Prosecutor Chris Downey was appointed to investigate yet another allegation of wrong-doing by the Harris County District Attorney’s Office in the 232nd District Court’s Grand Jury.” Unlike Stephen St. Martin, who might have an axe to grind against Pat Lykos, Downey is an unimpeachable choice as a special prosecutor. Untouchable.

Item the second: Harris County Assistant District Attorney Rachel Palmer was summoned to appear for a second time before the 185th Grand Jury (with St. Martin as special prosecutor). She took the fifth.

The prosecutors filed a motion to compel. Their “position was that she did not have a right to invoke the 5th, since she was not the target of the investigation and no questions would be asked that would incriminate her.” This position is sound and fury, signifying nothing.

As I have written before, in the real world a person can take the Fifth for his own reasons, and there’s not a damn thing the prosecutor can do about it. He can’t force you to explain (why am I taking the Fifth? I take the Fifth), he can’t stop you from doing it, and he can’t punish you for doing it.

If the state can’t stop you from taking the Fifth, and if the state can’t punish you for taking the Fifth, for all practical purposes you have a right to take the Fifth, no matter what the prosecutor says.

The operative principle is that nobody has to talk to the state without immunity. The state doesn’t get to decide who needs immunity and who doesn’t. When someone takes the Fifth, the state can either immunize her (explicitly or—by getting a judge to compel the person to order—implicitly) or not. If someone takes the Fifth and the state won’t immunize her, the state hits a dead end. The witness can’t be held in contempt or otherwise punished for her silence because she hasn’t been ordered to answer (and if she had been, that would be de facto immunity).

It doesn’t look good, in the court of public opinion, for prosecutors to be taking the Fifth. It looks like they’re trying to hide things. But Palmer isn’t necessarily hiding something. Refusing to talk to a grand jury without use immunity is a reasonable stance for someone to take even if she thinks she hasn’t done anything wrong—especially where, as here, the grand jury’s investigation appears to have political overtones. In that situation, if you can get use immunity, you might as well.

(Incidentally, the 185th Grand Jury is homing in on Pat Lykos’s apparent retaliatory interference with Lone Star College’s contract to supervise breath-alcohol testing.)

About Mark Bennett

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.
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14 Responses to Your Fifth Amendment at Work

  1. Mike Paar says:

    There have been dozens and dozens of reporters who were jailed for not disclosing their sources even after they had invoked the 5th Amendment. Do attorneys have some special privilege regarding the 5th that reporters don’t?

    • Mark Bennett says:

      Mike, no. Reporters have been jailed for not disclosing their sources after invoking the journalistic-source privilege, being ordered to disclose their sources, and then not disclosing their sources. Totally different situation.

      If a witness takes the Fifth, is ordered to answer, and then does not answer, he can be jailed for contempt as well.

  2. joanne musick says:

    While I believe your analysis is correct, it just begs the question: if she has already testified once (without taking the 5th and without being compelled), what has changed? I don’t hold it against her for taking the fifth, as we suggest the same to clients regularly, but it really does look she is hiding something to have once been “cooperative” and is now holding back. As you said, in the court of public opinion, it just doesn’t pass the smell test. If she were genuinely worried about her testimony, why not invoke it the first go-round?

    • Mark Bennett says:

      If forced to guess, my first guess would be that she went in the first time without counsel.

      My second guess would be that they got uncomfortably close the first time to something that worried her or her lawyer.

      My third guess would be that she perjured herself the first time.

  3. Mike Paar says:

    Thanks, Mark. Then is it your guess that the GJ will offer her immunity and she will then be compelled to answer their questions?

  4. Mike Paar says:

    Wow, would this immunity cover her if she did indeed perjure herself the first time? Or does the immunity just cover the questions answered after she is granted immunity?

  5. Mike Trent says:

    @Mike Paar: Use immunity never covers perjury, and the motion generally doesn’t distinguish between previous perjury and perjury committed while answering the questions under compulsion.

    @Mark: Thus far everyone has referred to it as a “motion to compel”, but the ones I’ve seen are always titled “Motion to Compel Testimony and Grant Use Immunity.” So are they trying to compel her without granting immunity? That seems like it would be fruitless. Does anyone have a copy of the actual motion?

    • Mark Bennett says:

      Mike Trent, as to perjury, please see the post I linked to in response to Mike Paar. If I testify under a grant of use immunity that I committed perjury in earlier un-immunized testimony, I don’t see how they could use the immunized testimony to prove the perjury.

      As to compulsion without immunity, any judicial compulsion would confer de facto use immunity.

  6. Mike Trent says:

    Apparently the special prosecutors do not think so. See Murray’s newest post on the subject.

    • Mark Bennett says:

      If they do, they are wrong. This is Fifth Amendment 101: compelled testimony can’t be used, directly or indirectly, against the person compelled.

      I think St. Martin’s making a strategic mistake not explicitly giving immunity if he actually wants Palmer’s testimony soon, especially if—as Murray suggests—this grand jury is not long for this Earth.

  7. Mr. B., regarding Grand Jury 101. Are District Courts assigned their own GJ or is there one that serves all of Harris County? Last but not least, can one be arrested, indicted, go to trial and receive a sentence – without the input of the/a GJ? Thanks.

    • Mark Bennett says:

      Grand juries are organized by particular courts, but they handle cases in all courts. I had a case in the 209th District Court no-billed by the grand jury for the 232nd (or maybe 230th) District Court recently.

      Without waiving indictment, one could not go to trial on a felony case in Texas without a grand jury having handed down an indictment. The Texas Constitution (like the U.S. Constitution in federal cases) requires it.

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