Thursday, February 18, 2016
Today, I'm teaching the Fifth Amendment in my Criminal Adjudication class. Interestingly, there is a current appeal before the Court of Special Appeals of Maryland claiming that current Deputy Attorney General Thiruvendran Vignarajah (the Deputy AG from Adnan's case) violated the Fifth Amendment (as well as the Brady doctrine and the rules regarding closing arguments) in a murder trial. Also interesting is the fact that the attorney representing the appellant is one of the law clerks who worked on the Adnan Syed case for Cristina Gutierrez.
That appellant is George Johnson, and the pertinent facts of his case are laid out in this article:
On July 29, 2008, Johnson and co-conspirator, Derrick Toomer, lured Ralph Hall into a public school parking lot in Northwest Baltimore under the ruse that they would provide him with assistance for his struggling bail bonds business.
When Hall arrived, Johnson entered his car and fatally shot him in the chest and back, prosecutors said.
According to testimony at Toomer’s trial, Toomer organized the attack and hired Johnson for a couple thousand dollars to kill Hall.
This post, however, deals with Johnson's trial, not Toomer's trial. That trial ended with Johnson being convicted of first-degree murder and related crimes. Here are the first of three arguments laid out in the appellant's brief (Download Johnson Brief(1)) and the State's responses:*
Fifth Amendment Violation
In relevant part, the Fifth Amendment states:
nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law.
At Johnson's trial, Vignarajah called Toomer and began to ask him questions about the crime, prompting Toomer to invoke his Fifth Amendment privilege against self-incrimination. Thereafter,
The jury was excused from the courtroom and a discussion ensued wherein Toomer and his counsel made clear that he would refuse to answer questions pursuant to his Fifth Amendment Privilege. (T5.41-48). Ms. Davis argued that he could not be compelled to testify because he was pending appeal and added that he would have no immunity from federal prosecution. (T5.41-42). When the jury returned to the courtroom, Derrick Toomer and his attorney were gone and the trial proceeded with other witnesses. (T5.48).
According to Celia Davis, Toomer's appellate counsel, this decision shouldn't have been a surprise to Vignarajah.
Ms. Davis explained that she had spoken with Mr. Vignarajah that morning, prior to Toomer being called to the stand, and testified that “at the end of the discussion, I told Mr. Vignarajah that my client would not testify. That he would invoke his Fifth Amendment rights. That he was not interested in signing the immunity agreement, and he was well aware that he could be held in contempt.” (T8.18). Ms. Davis further stated that there was “no confusion” about her client’s decision and that she conveyed that decision to Mr. Vignarajah “very clearly.” (T8.19).
According to Johnson's appellate counsel, Julie Reamy,** Vignarajah's decision to call Toomer violated the Fifth Amendment because
“When the prosecutor knows [a] witness will invoke the Fifth Amendment when called, it is improper for the State to call the witness before the jury to invoke the privilege so as to take advantage of the adverse inference the jury naturally will draw from the assertion.” Johnson v. State, 156 Md. App. 694, 707 (2004) (citing Allen v. State, 318 Md. 166, 179-80 (1989); Adkins v. State, 316 Md. 1, 14-15 (1989); Vandergrift v. State, 237 Md. 305, 309 (1965).
Moreover, Reamy has claimed this was a case in which Toomer could invoke his Fifth Amendment privilege because
“A witness who has been found guilty and sentenced on criminal charges is entitled to claim the privilege against self-incrimination with regard to matters underlying those charges while the time for appeal or sentence review is running, or while a direct appeal or sentence review is pending. Ellison v. State, 310 Md. 244, 253-54 (1987).”
The State's response can be found in Johnson v. State, Brief of Appellee, 2015 WL 9900489 (Md.App. 2015). According to the State,
the prosecutor was prepared to offer immunity to Toomer. If Toomer had been granted immunity, the trial judge would have been empowered to compel him to answer the prosecutor's questions.
At trial, Toomer asserted that, notwithstanding immunity, he might nevertheless be prosecuted federally. (T5. at 42). Toomer did not provide any basis for the assertion that a federal prosecution was possible, and Maryland appellate courts have held that offers of immunity - such as the one proffered below - are sufficient to allow a trial court to compel the reluctant witness to testify. In re Criminal Investigation No. 1-162, 307 Md. 674, 683 (1986).
So, breaking things down, (1) Johnson claimed that Vignarajah violated the Fifth Amendment by calling a witness he knew would invoke the privilege against self-incrimination in front of the jury; and (2) the State claimed that Vignarajah legitimately called Toomer because Toomer (a) didn't adequately explain his fear of federal prosecution; and (b) had been offered immunity by Vignarajah.
I don't have enough information to address argument (2)(a) by the State. The answer to (2)(b), however, seems pretty clear. The case cited by the State -- In re Criminal Investigation -- deals with unprosecuted witnesses being offered immunity. Conversely, Toomer had been convicted and was appealing his conviction.
The case cited by Reamy is Ellison v. State, which was cited by the Court of Special Appeals of Maryland in Adkins v. State, 531 A.2d 699 (Md.App. 1987), and involved a similar factual context. According to the court in Adkins,
As Ellison makes clear, however remote appellant thinks Troxell's chances of success on appeal may have been, he still was in jeopardy of incrimination, and, under the circumstances, we are hard-pressed to see how the State could have granted him immunity or “made a deal” for his testimony. In any event, the State has no obligation to offer any such extraordinary inducements in order to justify a finding of unavailability.
Ultimately, in Adkins v. State, 557 A.2d 203 (Md. 1989), the Court of Appeals of Maryland reversed the defendant's conviction, concluding that the State violated the Fifth Amendment by calling a witness, Troxell, who was appealing his conviction for his involvement in the defendant's crime and whom the State knew would invoke his privilege against self-incrimination if interrogated at trial, concluding that
The accomplice's invocation of the Fifth Amendment before the jury resulted in circumstances such that “inferences from a witness' refusal to answer added critical weight to the prosecution's case in a form not subject to cross-examination, and thus unfairly prejudiced the defendant.”
Will the court in Johnson reach a similar conclusion? It's tough to say because there seems to be a debate between the parties over the question of whether this Fifth Amendment issue was preserved for appellate review. If that procedural issue is resolved in Johnson's favor, however, I think that he has a pretty strong substantive argument.
*I will cover the remaining arguments in subsequent posts.
**Reamy worked for Cristina Gutierrez from 1999-2001 and talked to Sarah Koenig on Episode 10 of the Serial Podcast. I asked her about her recollection of Adnan's case, including the note that seemingly indicates that the defense was planning on contacting/calling a medical examiner, but she had no recollection of information in the defense files relating to her involvement.