From time to time, it is important to keep track of the cases which impact key rulings for law enforcement officers. Keeping track of these important cases are critical when lawyers (like myself) need to represent police officers and officials in criminal/administrative proceedings. Few cases are as important as Garrity. A recent search of all existing cases impacting Garrity revealed the following as the most recent affirmation of the Garrity doctrine as it impacts law enforcement officers and officials.
The case I am referring to, U.S. v. Slough, 677 F. Supp.2d 112 (D.D.C. 2009) was an end of the year ruling, issued by Judge Ricardo Urbina of the U.S. District Court for the District of Columbia on December 31, 2009. In the case, the U.S. District Court took the unusual step of dismissing high profile criminal manslaughter prosecutions against private security services contractors operating in Iraq. The court took this significant action on the basis that the investigators in the case had violated the rules in Garrity in that the defendants’ statements were improperly compelled and then used against them later.
Given the significant political fallout of dismissing a case like this, in light of the media interest in the international case, I believe that the U.S. District Court took a courageous stand in enforcing Garrity and further adding to the body of case law that protects law enforcement officers from improper and illegal questioning.The pertinent portion of the U.S. District Court’s Opinion, starting on Page 115 of the Court’s December 31, 2009 ruling, reads as follows:
“The defendants have been charged with voluntary manslaughter and firearms
violations arising out of a shooting that occurred in Baghdad, Iraq on September 16, 2007. They contend that in the course of this prosecution, the government violated their constitutional rights by utilizing statements they made to Department of State investigators, which were compelled under a threat of job loss. The government has acknowledged that many of these statements qualify as compelled statements under Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967), which held that the Fifth Amendment privilege against self-incrimination bars the government from using statements compelled under a threat of job loss in a subsequent criminal prosecution. The Fifth Amendment automatically confers use and derivative use immunity on statements compelled under Garrity; this means that in seeking an indictment from a grand jury or a conviction at trial, the government is prohibited from using such compelled statements or any evidence obtained as a result of those statements.
The government has also acknowledged that its investigators, prosecutors and key witnesses were ex-posed to (and, indeed, aggressively sought out) many of the statements given by the defendants to State Department investigators. Under the binding precedent of the Supreme Court in Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972) and this Circuit in United States v. North, 910 F.2d 843 (D.C.Cir.1990), the burden fell to the government to prove that it made no use whatsoever of these immunized statements or that any such use was harmless beyond any reasonable doubt. Beginning on October 14, 2009, this court convened a Kastigar hearing to explore whether the government had made any use of compelled statements during its prosecution of the defendants. During this hearing, which spanned three weeks, the parties presented testimony from twenty-five witnesses, including the government's entire prosecution team, the lead FBI agents in charge of the investigation and all five defendants. The parties offered hundreds of exhibits into evidence and submitted voluminous pre- and post-hearing memoranda.
From this extensive presentation of evidence and argument, the following conclusions ineluctably emerge. In their zeal to bring charges against the de-fendants in this case, the prosecutors and investigators aggressively sought out statements the defendants had been compelled to make to government investigators in the immediate aftermath of the shooting and in the subsequent investigation. In so doing, the government's trial team repeatedly disregarded the warnings of experienced, senior prosecutors, assigned to the case specifically to advise the trial team on Garrity and Kastigar issues, that this course of action threatened the viability of the prosecution. The government used the defendants' compelled statements to guide its charging decisions, to formulate its theory of the case, to develop investigatory leads and, ultimately, to obtain the indictment in this case. The government's key witnesses immersed themselves in the defendants' compelled statements, and the evidence adduced at the Kastigar hearing plainly demonstrated that these compelled statements shaped portions of the witnesses' testimony to the indicting grand jury.
In short, the government has utterly failed to prove that it made no impermissible use of the defendants' statements or that such use was harmless beyond a reasonable doubt. Accordingly, the court must dismiss the indictment against all of the defendants.”
The court went on to dismiss the indictment against all of the private security contractors involved in the case. I believe that the Slough case, and the attached 90-page legal opinion strongly supports and adds to the protections that law enforcement officers need today. In today’s day and age of quick judgments based upon speculation, but not facts, coupled with increasing media scrutiny for senior level police officials, this case goes a long way towards mandating a cautious and reasonable approach to asking law enforcement officers questions during high profile investigations. The Slough case can be read, in full, by clicking here Download US v Slough.