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April 13, 2007

Danziger bridge shooting case

NPR has the latest on the case against the NOPD officers accused of shooting unarmed black men on the Danziger Bridge after Hurricane Katrina. According to the article, prosecutors made a major tactical blunder when the promised three officers immunity for grand jury testimony only to indict them afterwards.

Do prosecutors go back on promises of immunity regularly?

It's not certain that a judge and jury will get to decide who was guilty and who was innocent on the Danziger Bridge that morning. Legal experts say prosecutors have already made a serious misstep. They offered immunity to three of the officers to testify before the grand jury, then turned around and got indictments against them.

Defense attorneys argued strenuously that immunized testimony cannot be used to incriminate a defendant. Last week, a judge gave the lawyers for the police a tactical victory and let them review the entire grand jury testimony.

Loyola professor Ciolino says that's invaluable for the defense. Prosecution of the Danziger Bridge case has, so far, provided him several "teachable moments." [NPR]

The defense attorneys for the officers are claiming that the prosecution used the grand jury testimony against their clients, and a judge gave them the right to review the grand jury testimony to search for evidence that officers' immunized testimony was used against them. However, news reports seem to be talking about the alleged misuse of testimony as if it were an established fact. Am I missing something? 


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I'm not an expert on this area of law, and to be honest, I'm too lazy to go look things up.

But grants of immunity can be *shockingly* narrow. A prosecutor can, for example, give a grant of immunity for only that testimony which was given as part of the immunity deal, but not for the actual acts to which the grantee testifies.

So lets say Joe and Bob rob a house together. A prosecutor could give Joe a grant of immunity regarding his testimony, in exchange for Joe testifying about the robbery. Then the prosecutor could indict Joe on the testimony of Bob, and whatever physical evidence or third party testimony he has available.

This would have been made clear to the cops when they were given the immunity offer. If their defense counsel is crying foul, that's pretty much standard practice- the defense's obligation is to portray any indictment as being based upon immunized testimony, as that would probably negate the indictment.

The only thing that you're missing is the fact that the media defaults to the pro-police decision. They bend over backwards and give everything a police lawyer says the benefit of the doubt while constantly questioning the prosecution's motives, or defaming the plaintiff in a civil trial.

Seconding Patrick,

Yes, it depends. Grants of immunity are a fairly complex deal and immunity can be very narrow. Most of the time, prosecutors simply foist a use immunity up a witness - who's actually a defendant - to prevent that person from pleading the Fifth.

There is no real negotiation and it's not a favor a prosecutor does to a witness. The prosecutors simply say "I won't use your testimony against you. From there on, you can't plead the Fifth. You either speak or I prosecute you for contempt / obstruction of justice". Everything the prosecutor can gather against the witness from other sources remains a valid base for prosecution.

For relevant information, see that discussion at Firedoglake of Fleischer's immunity in the Libby trial:

I am not an expert in this area of the law, but I believe that the distinction between "use immunity" and "transactional immunity" applies here. The first says that the use of a witness' testimony cannot include any jeopardy to him or her, directly or indirectly. If the testimony in case A then helps the prosecution shape grand jury questions to other witnesses in cases B, C and D against the officers themselves.... then the testimony was "used." I don't think it saves the prosecution if the evidence obtained could have been obtained by other sources; if it was, in fact, obtained here, then the grand jury testimony is probably dead, even if the facts are pretty minor.

The second issue is when jeopardy "attaches" i.e. when is it double jeopardy? I don't believe that double jeopardy attaches at the grand jury stage in any way, and a "goof" here could theoretically allow a refiling with additional evidence later. I recall Maryland courts holding that jeopardy attaches either after the first prosecution witness at trial, not grand jury, is sworn or answers one question, forget which. Practically though, if one weaves a case, it can get awfully hard to pull out one long off-color thread of immunized evidence and keep the garment whole.

Transactional immunity is simply absolute immunity for the subjects discussed, regardless of pre-existing or independently sourced evidence.

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