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Currie v. State,
No. M-2004-0769 (Okl.Cr., August 12, 2005) (Unpublished): Instructive case on the issue of contempt and use immunity. Currie, 15 at the time, was charged with others with Murder I and apparently worked a deal to testify. He testified once, but refused to testify at a different co-defendant's trial. The District Court granted use immunity, Currie still refused to testify, and he was thereafter slapped with six months county for contempt. COCA affirmed over Currie's Fifth Amendment claim, citing Clem v. State, 1985 OK CR 66. NOTE: The Court made no mention of possible federal prosecution; and I have often wondered if a defendant like Currie could prevail in federal court since such testimony would, as far as I know, be admissible in a federal prosecution as relevant conduct or even a substantive charge if the AUSA has not signed off on the immunity deal in state court. Anyone ever litigated this issue?
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Murphy v. Waterfront Commission of New York
Stephen Jones, Enid, has brought to my attention the case of Murphy v. Waterfront Commission of New York, 378 U.S. 52 (1964), which appears to be right on point and holds that a state court immunity grant is binding on the federal government as well.
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United States v. Ponds,
No. 03-3134 (D.C. Cir., July 14, 2006): Immunity: Ponds was an attorney who took a car as a fee in a drug case. The Government sought to forfeit the car and Ponds did not inform anyone, including the judge at his client's sentencing, that he had the car. The AUSA and the DEA went after Ponds in Grand Jury proceedings, acquired information from his client through subpoenas (the fee agreement that discussed the car), and issued subpoenas to Ponds to produce records relating to the car. Ponds invoked his right against self-incrimination and the Government sought and received an order from the court granting act-of-production immunity under 18 U.S.C. 6002. Pursuant to the immunity grant, Ponds appeared before the Grand Jury and produced the records. He was thereafter indicted and convicted of tax evasion and mail fraud, although these convictions were not related directly to the car. The Circuit reversed because the Government made "derivative" use of some of the protected documents.
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State v. Barthelme,
2007 OK CR 40 (October 25, 2007): Immunity: This case involves a State appeal out of the Grady County in the case where some members of the Sheriff's Office have been charged with gambling offenses. In this case, Delmer Frank Barthelme, then a deputy for the Grady County Sheriff's Office, agreed to be interviewed by an investigator of the District Attorney's Office (why an experienced law enforcement officer would do such a thing is not explained). During this interview, Barthelme acknowledged that he was a member of the Elk's Lodge (where the machines were located) and that he had played them (losing $10.00). This was the extent of the State's evidence at PH. The demurrer was sustained because the magistrate held Barthelme's statements to the investigator were not admissible on the basis of quirky language in 21 O.S. 961 that grants immunity to a person giving testimony or evidence concerning these crimes. The Court REVERSED on the basis that the statute does not apply to volunteered statements; or in other words: "Compulsion is a condition precedent for immunity." NOTE: This was a 3-2 opinion with Judges Chapel and Lewis, dissenting.
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United States v. Straub,
No. 07-30182 (9th Cir., August 15, 2008): Immunity: This is a very instructive case that clarifies Ninth Circuit law on the concept of "use immunity" to defense witnesses and when such immunity is compelled by Due Process concerns. Basically, in this prosecution of gang members, the government granted immunity to one of its witnesses but refused to grant immunity to a defense witness who would have contradicted the government witness. The panel reversed the district court's denial of use immunity to the defense witness and clarified Ninth Circuit law on the issue thusly: "We now hold that for a defendant to compel use immunity the defendant must show: (1) the defense witness's testimony was relevant; and (2) either (a) the prosecution intentionally caused the defense witness to invoke the Fifth Amendment right against self-incrimination with the purpose of distorting the fact-finding process; or (b) the prosecution granted immunity to a government witness in order to obtain that witness's testimony, but denied immunity to a defense witness whose testimony would have directly contradicted that of the government witness, with the effect of so distorting the fact-finding process that the defendant was denied his due process right to a fundamentally fair trial."
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