Shortly before I moved on after 28 years of work as a Federal Public Defender, one of the younger attorneys I had the honor to mentor forwarded me an e-mail he'd received from an Assistant United States Attorney. The e-mail complained that my younger colleague was being extremely frustrating, that my colleague was making far too much of a "simple little case," that the client in the case was going to be deported no matter what, and that my colleague was forcing the prosecutor to "expend[ ] a tremendous amount of effort" on what the prosecutor characterized as a "silly issue." He ended his e-mail by asking, "Have you been hanging out with Carl Gunn?"
Some people would have been insulted by this, but I felt rather proud. Making as much as we can out of what the government sees as "simple little cases," litigating issues despite the government's view that they might be "silly," and "expend[ing] a tremendous amount of effort" on behalf of clients who have the full weight of the government thrown up against them – often with the government's view that the case is open and shut, or "simple" – is our calling as public defenders and defense attorneys. We all have our different reasons for doing it, but it's a crucial task – for our clients, our system, and ourselves. As Sir Thomas More was said to say in "A Man for All Seasons" in response to his future son-in- law's exclamation that he'd "cut down every law in England" to get at the devil: "Oh, and when the last law in England was down and the Devil turned round on you – where would you hide, Roper, all the laws being flat?"
I'm proud if "hanging out with Carl Gunn" means not just accepting the government's view that cases are "simple" and "little," that issues are "silly," and that we shouldn't expend resources on our clients. Hence the name of this blog: "Hanging out with Carl Gunn." I hope to offer some thoughts and ideas that the government may think are "silly," but I respectfully don't; that you can use in cases that the government may think are "simple," but aren't so simple when looked at more critically; and that are an entirely appropriate way to expend our resources. And in the spirit of this being a "hanging out" together, there might be guest bloggers from time to time with their "silly" ideas to offer. I hope you find some of the ideas on this blog helpful and offer whatever comments you might have to add to them.
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More on Fifth Amendment Rights from the News: On the Scope of the Privilege Against Self-Incrimination
Even an innocent person can claim the privilege against self-incrimination.
The test is whether the answer to the question could provide a mere "link in the chain of evidence" needed to convict.
All the person claiming the privilege needs to show is that there are "substantial and real, and not merely trifling or imaginary, hazards" of such incrimination.
NOW THE BLOG:
My last two posts on the government’s efforts to extend the Miranda "public safety" exception in its questioning of the Boston Marathon bombing suspect arose, as I noted, out of public news reports. I guess the Fifth Amendment’s been in the news a lot lately – or maybe I’m just been thinking about it more when I read the newspaper – because some more news I read recently triggered some thoughts about another Fifth Amendment issue. You may recall the publicity about the IRS targeting tea party groups and the subsequent claims of some members of Congress that one or more IRS officials had misled them in testimony that had been given at a hearing about the targeting. Some members of Congress even suggested that giving this misleading testimony might have been a crime.
Soon after that, I saw an article indicating that one of the IRS officials had been resubpoenaed by a committee to testify about this alleged deception, invoked the Fifth Amendment, and refused to answer questions. This official was quoted as saying at the same time, however, that "I have not done anything wrong."
This could trigger the question of how a person can assert the privilege against "self-incrimination" (my emphasis) if she hasn’t committed any crime. Because if you haven’t committed a crime, how could you incriminate yourself?
If you’re saying, "No that’s not the way it works," as I hope you are, then you’ve got it right. But it was actually not crystal clear, at least to the Ohio Supreme Court, as recently as 15 years ago. The United States Supreme Court, in 2001, had to make clear – though they thought it was so obvious that they did it in a per curiam opinion – that the Ohio Supreme Court was wrong when it held that "a witness who denies all culpability does not have a valid Fifth Amendment privilege against self-incrimination." Ohio v. Reiner, 532 U.S. 17, 18 (2001) (per curiam). Instead, the Court noted, its precedents "dictate that the privilege protects the innocent as well as the guilty."
This makes sense because of another principle about the privilege against self-incrimination, which the Court noted in Reiner but had been established long before that. That principle is that a person can assert the privilege against self-incrimination in response to questions that fall well short of the ultimate question of guilt. The privilege can be asserted as to any question the answer to which could furnish a mere "link in the chain of evidence" needed to convict.
Reiner, 532 U.S. at 19 (quoting
Hoffman v. United States, 341 U.S. 479, 486 (1951)).
See also United States v. Equihua-Juarez, 851 F.2d 1222, 1227 (9th Cir. 1988). All the person claiming the privilege has to show is that there are "substantial and real, and not merely trifling or imaginary, hazards of self-incrimination."
United States v. Vavages, 151 F.3d 1185, 1192 (9th Cir. 1998) (quoting
United States v. Rubio-Topete, 999 F.2d 1334, 1338 (9th Cir. 1993) and
United States v. Apfelbaum, 445 U.S. 115, 128 (1980)).
So our IRS official could say I didn’t do anything wrong at the same time she was claiming the privilege against self-incrimination. And who can blame her the way those Congresspersons were talking? Why answer questions from people who are already publicly accusing you of a crime?
This segues (at least if I force it) into how you might use these principles when you’re representing a criminal defendant who’s already charged with a crime. No one’s going to argue that your criminal defendant client doesn’t have a privilege against self-incrimination, so it really won’t come into play there. But what about a witness whom you’re going to accuse of a crime, say a domestic violence "victim" whom you’re going to argue assaulted your client just as much as your client allegedly assaulted him or her? Or the witness you’re going to accuse of committing some other act that could at least arguably incriminate the witness, i.e., could be a mere "link in the chain of evidence" that might make someone
think the witness was guilty of a crime even if he or she wasn’t? Or a witness whose answers to the
government’s questions might furnish such a link?
While conflict rules prevent you personally from advising a witness of these risks and the potential privilege the witness may have, you can point out the above self-incrimination standard to the judge and argue that the witness needs an attorney. And if the witness gets an attorney, that attorney may advise the witness not to testify. So think about these rules as they apply not just to your client, but also to potential witnesses.
Carl Gunn was an Assistant Federal Public Defender for over 28 years from 1983 through 2011, mostly in the Los Angeles office, but with additional three-year and four-month stints in Tacoma, Washington and Anchorage, Alaska, respectively. During much of his tenure, he supervised, trained, and/or mentored newer attorneys. He is now of counsel at Kaye, McLane, Bednarski & Litt, where he specializes in federal criminal appellate practice and motions and sentencing support. He has a reputation for raising issues that lead prosecutors to make comments such as the one discussed in the far left column of this blog. Those comments also reflect prosecutorial concern about the successful outcomes raising such issues can produce – whether it's getting an acquittal, getting charges dismissed, or getting a much lower sentence or favorable plea agreement. For more on Mr. Gunn and the other attorneys at Kaye, McLane, Bednarski & Litt, Click Here.