Your Fifth Amendment at Work

 Posted on December 15, 2011 in Uncategorized

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.)