The U.S. Court of Appeals for the Third Circuit has brought itself into line with the other 10 circuits by revoking its rule allowing trial court judges to grant immunity to defense witnesses.

The Third Circuit stepped back from the rule that it adopted in 1980 with its opinion in Government of the Virgin Islands v. Smith in a unanimous en banc opinion this week.

"No statute or Supreme Court ruling authorizes judicial grants of immunity for a defense witness," Judge Thomas Ambro wrote on behalf of the court in a 42-page opinion. All 13 of the other active judges on the Third Circuit joined his opinion.

"We are the only court of appeals that permits a trial court to immunize a defense witness. Every other court of appeals has rejected this theory of judicial power. Today we do so as well, and overturn that part of Smith that recognizes judicial grants of immunity," Ambro said, noting that Congress created the power to grant immunity through statute and gave that power to the executive branch, not the judiciary.

"The decision to immunize a witness to obtain his testimony is a core prosecutorial function, as immunizing necessarily involves weighing the public's need for testimony against the risk that immunity will inhibit later prosecution of criminal wrongdoing," Ambro said. "We, in our corner of the judiciary, now step away from our reach into this prosecutorial realm."

Congress bestowed the power to grant immunity to a witness to the executive branch, Ambro explained, for prosecutors to use in deciding whom to prosecute and how.

"Courts are not in the best position to decide these prosecutorial trade-offs," he said.

Peter Goldberger, who practices criminal appellate law, was appointed to handle the appeal on behalf of Keenan Danan Quinn, who was convicted of aiding and abetting a bank robber because he drove the getaway car. Quinn argued that Shawn Johnson, the bank robber, should have been afforded immunity by the trial court judge in order to testify for Quinn after Johnson had taken the Fifth.

When a defendant subpoenas a witness and the witness claims his right to not incriminate himself under the Fifth Amendment, then both parties are exercising constitutional rights since the defendant has a Sixth Amendment right to compulsory process, Goldberger argued, meaning that the trial judge would have to resolve a conflict of rights.

If a judge compels a witness who has claimed the Fifth to testify, that testimony is already immunized, Goldberger argued.

"He explains 'the self-incrimination clause by its own force confers immunity for direct and indirect uses of the compelled testimony against … that witness,'" Ambro said, concluding, "That is not correct."

Earlier, Ambro had said, "The Smith court based its judicial immunity remedy on the conclusion that the Fifth Amendment's due process clause includes a right to present an effective defense. Although it cited the Sixth Amendment's right to compulsory process, that alone does not entitle a defendant to request immunity for his witnesses."

He quoted from the Third Circuit's 1987 opinion in Diggs v. Owens, saying, "'In general a defendant's Sixth Amendment right of compulsory process gives way when a witness he has subpoenaed invokes his Fifth Amendment privilege against self-incrimination.'"

The Third Circuit did preserve the five-part test that it created in Smith for weighing whether a prosecutor's refusal to grant immunity to a defense witness denies the defendant due process.

The so-called "prosecutorial misconduct theory" holds that prosecutors violate a defendant's due process rights if they intentionally interfere with a witness.

The pre-Smith standard for making that determination is hard to apply "when the government declines to grant immunity to a defense witness. Smith crafted a new five-part test to address instances of government refusal to immunize, with the aim of ensuring that a defendant is able to present a defense free from improper government intrusion," Ambro said.

The test required consideration of these questions when a defendant asked for witness immunity: "(1) properly sought in the district court; (2) the defense witness [is] available to testify; (3) the proffered testimony [is] clearly exculpatory; (4) the testimony [is] essential; and (5) there [are] no strong governmental interests which countervail against a grant of immunity."

In the new prosecutorial misconduct context, Ambro said, "The five factors considered in Smith remain analytically helpful, as they capture those situations where the government, for tactical reasons, has used its power to threaten prosecution and withhold immunity to keep exculpatory and essential testimony from trial for no strong countervailing reason."

Ambro explained that the remedy for the test in its new application "follows easily. It is vacating the conviction and allowing a new trial where the government can elect to exercise its statutory authority to obtain a grant of immunity for the witness. … If the government refuses to immunize the witness in violation of the defendant's due process right, the trial court can dismiss the charges against the defendant."

The fact that the court didn't close the door on a defendant's ability to call a witness is important, said Robert Zauzmer, the assistant U.S. attorney who handled the case.

Although Goldberger was confident that the U.S. Supreme Court would be interested in hearing the case should Quinn want to file for a writ of certiorari, Zauzmer was less certain, since this opinion extinguishes any disagreement among the circuits.

"This does clarify the law," Zauzmer said.

Saranac Hale Spencer can be contacted at 215-557-2449 or sspencer@alm.com. Follow her on Twitter @SSpencerTLI.

(Copies of the 42-page opinion in United States v. Quinn, PICS No. 13-2409, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •