State May Not Make Direct or Derivative Use of Public Employee’s Compelled Statement in Criminal Action

When Employer Compels Self-Incriminating Statement on Threat of Firing

State v. Jackson, Slip Opinion No. 2010-Ohio-621.
Stark App. No. 2007CA00274, 2008-Ohio-2944. Judgment of the court of appeals reversed, and judgment of the trial court reinstated.
Moyer, C.J., and O'Connor and Lanzinger, JJ., concur.
Pfeifer and O'Donnell, JJ., concur separately.
Lundberg Stratton and Cupp, JJ., dissent.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2010/2010-Ohio-621.pdf

(March 3, 2010) The Supreme Court of Ohio ruled today that, under the U.S. Supreme Court’s decisions in Garrity v. New Jersey and Kastigar v. United States, when a public employer compels an employee under threat of firing to make a statement in an administrative proceeding:

the state may not make any direct or derivative use of the employee’s statement in a criminal proceeding against the employee;
the state makes derivative use of the employee’s statement when it presents to a grand jury testimony from a witness to the statement and when the prosecutor reviews the employee’s statement in preparation for trial; and
when the state fails to prove that it did not make any use of the employee’s statement in obtaining an indictment, the indictment must be dismissed.
The Court’s lead opinion, authored by Justice Judith Ann Lanzinger, reversed a decision of the 5th District Court of Appeals.

The case involved a statement given by Canton police officer Anthony Jackson during an internal investigation of his conduct by the Canton Police Department under the threat of disciplinary action. Such a statement is referred to as a “Garrity statement” based on the U.S. Supreme Court’s 1967 decision in Garrity v. New Jersey. In that case, the Court held that when several police officers were compelled to either answer incriminating questions during an internal investigation or forfeit their jobs, the 5th Amendment protection against self-incrimination prohibited the use of their statements in later criminal proceedings.

In this case, Jackson was alleged to have illegally possessed a firearm inside a liquor permit premises while he was on administrative leave from his job. Lieutenant David Davis investigated the incident on behalf of the Canton Police Department’s Internal Affairs Unit. As part of this internal investigation, Davis ordered Jackson to submit to an interview and make a statement. Davis gave Jackson a document titled “Garrity Warning” before this interview. The document advised Jackson that if his answers under questioning disclosed information indicating that he may have engaged in criminal conduct, “neither your self-incriminating statements nor the fruits of any self-incriminating statements you make will be used against you in any criminal legal proceedings.” The document also advised Jackson that, because any information he disclosed would not be used against him in a criminal prosecution, refusal to answer all questions put to him would be a violation of departmental rules that would subject him to disciplinary action.

Jackson gave detailed answers to questions regarding the incident in which he was alleged to have illegally possessed a firearm (the “Garrity statement”). He also disclosed the name of a potential witness to the incident, Vince Van. The state subsequently acknowledged that no one connected to the investigation had previously been aware that a person named Vince Van was a potential witness. After Jackson answered Davis’ questions, Davis continued to investigate by interviewing Van.

Several weeks later, the Stark County prosecutor presented evidence to a grand jury seeking a criminal indictment against Jackson for illegal possession of a firearm in a liquor permit premises. One of two witnesses who testified before the grand jury was Lieutenant Davis, who testified regarding the propriety of a police officer on administrative leave carrying a firearm, but declined to discuss the content of Jackson’s Garrity statement. The grand jury returned an indictment against Jackson for possession of a firearm in a D-permit liquor establishment in violation of R.C. 2923.121(A). The trial prosecutor, who was not the same person as the indicting prosecutor, later obtained a copy of the police department’s internal affairs file, including a transcript of Jackson’s Garrity statement, during pretrial proceedings.

Jackson filed a motion to dismiss, arguing that the state had improperly used the fruits of his Garrity statement. The trial court held that Davis’ testimony before the grand jury violated Jackson’s Fifth Amendment rights pursuant to Garrity, because Davis had knowledge of Jackson’s compelled statements. The court therefore dismissed the indictment. On review, the 5th District Court of Appeals agreed that Jackson’s Fifth Amendment rights had been violated. However, the court of appeals reversed the portion of the trial court opinion that dismissed the indictment, and held that Jackson’s Garrity statement was not used to obtain the indictment but was used by the trial prosecutor after indictment. The court held that the proper remedy for the state’s Garrity violation was to purge the prosecutor’s files of the internal-affairs file, including the Garrity statement, and try the case with a new prosecutor.

Both parties sought and were granted Supreme Court review of the portions of the 5th District’s decision unfavorable to them.

In today’s decision, Justice Lanzinger first addressed the issue of whether the state violated Jackson’s Fifth Amendment rights under Garrity and a subsequent U.S. Supreme Court decision,

Kastigar v. United States (1972), in obtaining an indictment against him.

She wrote: “The state argues that Jackson’s Garrity statement was not used in any way at the indictment phase. It contends that although Jackson’s statement had disclosed the name of a previously unknown witness, the witness was never mentioned to the grand jury and Davis explicitly declined to discuss the content of Jackson’s statement. ... Jackson argues that because Davis was present during the making of the Garrity statement and afterward became a witness before the grand jury, the statement was used to obtain the indictment. We agree. It is not the extent of the prosecutor’s own knowledge of the contents of the Garrity statement that creates the problem here. The prosecutor chose to offer the testimony of the internal investigating officer who knew the substance of Jackson’s Garrity statement and who used the statement to further his own internal investigation. ... The state makes derivative use of a Garrity statement when the prosecutor presents to the grand jury testimony from a witness to the statement. We agree with the trial court’s determination that Davis’s testimony before the grand jury constituted derivative use of Jackson’s statement by the state in violation of Garrity.”

With regard to the state’s access to Jackson’s Garrity statement for purposes of trial preparation, Justice Lanzinger wrote: “The state argues that Jackson’s statement was not used in any respect in preparing for trial. Vince Van, who was disclosed as a possible witness only in Jackson’s Garrity statement, was not on the state’s list of potential witnesses. Although the trial prosecutor acknowledges having had a copy of the statement, the state argues that mere knowledge of the contents of the statement does not mean that the state improperly ‘used’ the statement. Jackson emphasizes that the prosecutor not only admitted to having a copy of the statement, but also acknowledged that he ‘had the benefit of Internal Affairs reports for the purposes of pretrial preparation.’ We share the concern of the trial court and court of appeals that the prosecutor, who admitted having reviewed Jackson’s Garrity statement, was afforded an impermissible advantage in trial preparation. A defendant’s version of events provides the prosecutor with invaluable information, including the names of witnesses, potential defenses, and other information that could influence trial strategy. ... The state makes derivative use of a Garrity statement when the prosecutor reviews the statement in preparation for trial.”

With regard to the appropriate remedy for a pre- indictment Garrity violation, Justice Lanzinger cited this Court’s 1990 holding in State v. Conrad that a prosecutor’s use of a compelled statement tainted the defendant’s indictment and required that the case be remanded for dismissal of the indictment. “In this case,” she wrote, “Jackson’s statement was also used to obtain the indictment. Therefore, the trial court has correctly determined that dismissal is the appropriate remedy. When the state fails to prove that it did not make any use of a Garrity statement in obtaining an indictment, the indictment must be dismissed.”

Regarding a post-indictment violation of a defendant’s Garrity rights, Justice Lanzinger wrote: “The court of appeals held that the appropriate remedy for a Garrity violation after indictment was to purge the compelled statement from the prosecutor’s file and to appoint a replacement prosecutor to try the case. ... We find this solution unnecessary. Kastigar held that the proscription against using a defendant’s compelled statement is analogous to the proscription against using a defendant’s coerced confession. ... A coerced confession is inadmissible in a criminal trial, but does not bar prosecution. If a court rules that a confession was coerced in violation of the Fifth Amendment, the confession must be suppressed. ... Likewise, when a trial court rules after a Kastigar hearing that a prosecutor has used the defendant’s compelled statement in preparation for trial after indictment, the appropriate remedy is for the trial court to suppress that statement and all evidence derived from the statement.”

“For the foregoing reasons, we hold that the state failed to meet its burden to show that it did not use Jackson’s Garrity statement either before the grand jury or during trial preparation. Because the state did not meet its burden with respect to the indictment, we reverse the judgment of the court of appeals and reinstate the judgment of the trial court dismissing the indictment.”

Justice Lanzinger’s opinion was joined by Chief Justice Thomas J. Moyer and Justice Maureen O’Connor.

Justice Terrence O’Donnell entered a separate opinion, joined by Justice Paul E. Pfeifer, in which he concurred with Justice Lanzinger’s holding that Garrity and Kastigar bar the state from making any use of an employee’s Garrity statement. Justice O’Donnell stated, however, that in his view the state cannot use any information directly or indirectly derived from a Garrity statement in a criminal proceeding against the public employee who made the statement unless the state denies any use of the immunized testimony and also affirmatively proves an independent, legitimate source for all of the evidence to be introduced at trial.

With regard to access by prosecutors to a defendant’s Garrity statement, Justice O’Donnell wrote: “Because knowledge of the information contained in a Garrity statement may imperceptibly influence a prosecutor’s view of a case, the government cannot plausibly deny any use of a defendant’s compelled statement when the prosecutor has read it before trial. Therefore, I would hold that when a prosecutor has reviewed a defendant’s Garrity statement before trial and fails to establish an independent source for the evidence to be used at trial, dismissal of the indictment rather than suppression of the evidence is the appropriate remedy.”

Justice Robert R. Cupp entered a dissenting opinion that was joined by Justice Evelyn Lundberg Stratton. Justice Cupp wrote that he disagreed with the majority’s holding that Lieutenant Davis’ appearance before the grand jury after witnessing Jackson’s compelled statement, by itself, constituted improper “use” of that statement in obtaining an indictment despite the fact that Davis made no disclosure of any information obtained through the statement during his grand jury testimony.

Justice Cupp also disputed the majority’s conclusion that mere pretrial possession and review of a defendant’s Garrity statement by a prosecutor, without more, gives the state an impermissible advantage at trial. He wrote: “Assuming that the state will not introduce the compelled statement or its fruits at trial and will not use the statement for impeachment at trial, the only question that remains is whether the prosecutor’s exposure to the compelled statement and the internal-affairs file has directly affected the state’s trial strategy (such as choice of witnesses, for example). ... If the majority believes that the trial prosecutor in this case, who admitted to having reviewed Jackson’s compelled statement, was afforded an impermissible direct advantage in trial strategy, then the court should afford the state the option of accepting the court of appeals’ remedy—allowing the state to try the case without the disputed evidence and with a new trial prosecutor who has not seen any of the disputed evidence—instead of dismissing the case outright.”

Contacts
Kathleen O. Tatarsky, 330.456.7780, for the Stark County prosecutor’s office.

Bradley R. Iams, 330.452.6400, for Anthony Jackson.

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