I will never understand why the government gets the right to grant immunity to the witnesses of its choice, but then cannot be compelled to grant immunity to the defense’s witness when those witnesses get cold feet and decide to assert their Fifth Amendment right against self-incrimination.
This asymmetry results in the government’s ability to control how a case will be presented, effectively controlling the defense’s options.
It happened in a case I just tried with Jon Einhorn. Our clients were accused, and convicted, of participating in gifting tables. The government contended these tables were pyramid schemes, and that the clients had obstructed the Internal Revenue Service. (For the life of me, I still think of this latter charge as akin to a patriotic duty.)
Our defense was both advice of counsel and good faith. Table participants had visited lawyers of one sort or another, including a recent nominee to the state judiciary, Shelley Marcus. Several women called by the government waived their attorney-client privilege, thus permitting lawyers to testify about advice given regarding the gifting tables.
Not surprisingly, after folks had been indicted and the subpoenas started flying, the lawyers recalled either advising against participation, as one tax lawyer did, or taking no position on whether the tables violated federal law because, as Ms. Marcus implausibly put it: "We were just representing these women as to a state investigation."
Our investigation turned up information that several gifting table participants came away from the meeting with the tax lawyer, and with another lawyer, with the conclusion that the tables were legitimate. So we subpoenaed these women to court to support our case.
Each of the three women came to court with lawyers. Each asserted their Fifth Amendment right to avoid incriminating themselves. U.S. District Judge Alvin Thompson found the evocation of their right to remain silent proper. When we asked the government to grant immunity, we were met with a refusal. Our motion to compel the government to grant immunity was also denied. The result was that the jury never heard evidence central to our claim.
"Don’t you think that’s unfair?" I chided one of the prosecutors. After all, I sniped, the government had granted immunity to a witness it wanted the jury to hear. Presumably, this witness would not have testified had she not been immunized.
We think your witnesses are lying, one of the prosecutors responded.
I stared incredulously.
"Of course you think they’re lying," I replied. "They undermine your case."
Needless to say, we could not agree.
But here’s the rub. Lawyers are advocates. We aren’t witnesses. In many matters we have no idea who is, or is not, telling the truth. We select witnesses based on whether their testimony supports our theory of the case. It is too easy to conclude that a witness is lying merely because she will testify at variance with other witnesses, or because they will undermine our pet theory.
I fail to see the justice in permitting the government selectively to use immunity to get the evidence it wants, but then to prevent the defense from offering the evidence it needs to rebut the government’s claims.
The general duty requiring prosecutors to disclose exculpatory evidence is poorly served when the government decides to call exculpatory evidence a lie, and then refuses to grant immunity.
When defense counsel offers inducements to witnesses to testify, we stand on the threshold of witness tampering charges. When the government dangles immunity it is said to serve the interests of justice. Just why can’t defense counsels enjoy the same ability to produce immunity?
The jury in the gifting table case did not hear from important exculpatory witnesses. That is because the government would not let the jury hear it. It was a cold-blooded tactical decision that paid dividends. But it did not serve the interest of justice.•