This Chicago Sun-Times article reports:
A Cook County judge today threw out an indictment against a Chicago Police officer accused of falsifying drunken driving arrests.Judge James M. Obbish said prosecutors were wrong to rely on statements Officer John Haleas gave to police investigators during an internal investigation of his conduct.
Under union rules, such statements cannot be used against an officer in a criminal case, the judge said, ruling on a defense motion to dismiss the case….
I don’t have access to the judge’s opinion — if any of you can point me to it, I’d love to see it — but I highly doubt that union rules (even in Chicago) can affect the admissibility of evidence in criminal trials.
But the Supreme Court’s caselaw on the privilege against self-incrimination, and in particular Garrity v. New Jersey might well be doing the work here:
Appellants were police officers in certain New Jersey boroughs. The Supreme Court of New Jersey ordered that alleged irregularities in handling cases in the municipal courts of those boroughs be investigated by the Attorney General, invested him with broad powers of inquiry and investigation, and directed him to make a report to the court. The matters investigated concerned alleged fixing of traffic tickets.Before being questioned, each appellant was warned (1) that anything he said might be used against him in any state criminal proceeding; (2) that he had the privilege to refuse to answer if the disclosure would tend to incriminate him; but (3) that if he refused to answer he would be subject to removal from office.
Appellants answered the questions. No immunity was granted, as there is no immunity statute applicable in these circumstances. Over their objections, some of the answers given were used in subsequent prosecutions for conspiracy to obstruct the administration of the traffic laws. Appellants were convicted and their convictions were sustained over their protests that their statements were coerced, by reason of the fact that, if they refused to answer, they could lose their positions with the police department….
The choice given petitioners was either to forfeit their jobs or to incriminate themselves. The option to lose their means of livelihood or to pay the penalty of self-incrimination is the antithesis of free choice to speak out or to remain silent. That practice, like interrogation practices we reviewed in Miranda v. Arizona, is “likely to exert such pressure upon an individual as to disable him from making a free and rational choice.” We think the statements were infected by the coercion inherent in this scheme of questioning and cannot be sustained as voluntary under our prior decisions….
Perhaps there are union contract provisions that reflect the Garrity principle. But the rule of exclusion of evidence would be set by Garrity or perhaps by any Illinois legal rules that might be based on Garrity, not by the union contract itself.
UPDATE: I forgot to make this clear at first: I think that the judge probably didn’t rely on union rules, but instead relied on Garrity or cases or statutes that flow from it.
Tom Needham says:
The story in the Chicago Sun Times was incorrect. The judge’s ruling was squarely based on the principles enunciated many years ago in Garrity vs. New Jersey, and had nothing to do with any “union rules.”
(I happen to have some first-hand knowledge of this particular case.)
November 5, 2009, 4:38 pmPatHMV says:
Your legal analysis is certainly correct, Eugene. My money is on a sloppy reporter, however. In my experience, even the courtroom beat reporters don’t think they have time or reader interest in technical details, so I can easily imagine the reporter interviewing a prosecutor or the defense attorney (getting him to explain to the reporter what happened, what all the legal mumbo-jumbo meant), and condensing the entire spiel to “union rules prohibited the use of the confession.”
November 5, 2009, 4:38 pmuh_clem says:
My money’s on the reporter totally mangling the ruling.
It’s not like it would be the first time that a reporter puffed it.
November 5, 2009, 4:54 pmJim Rose says:
The Chicago criminal defense attorneys website makes it clear that it was a Garrity violation:
November 5, 2009, 5:18 pmDavid Nieporent says:
Without looking, I knew which justice had to have come up with such a ludicrous ruling.
November 5, 2009, 5:32 pmDNJ says:
Why is Gratty lucicrous? If the government requires you to incriminate yourself on pain of being sacked that seems like an unconstitutional condition to me.
And I and many others have a high opinion of Mr. Justice Douglas. His mix of pragmatism and principle, legal realism and liberal individualism, was unique on the court. Nobody stood up more strongly or eloquently for individual rights, particularly in the dark days of the McCarthy era. And his opinions were frequently delightful in their asides and made a refreshing change from standard legal writing and judgments, while also showing a deep appreciation for the importance of individual liberty and the vision of the Framers to protect it.
November 5, 2009, 7:41 pmBob from Ohio says:
Douglas liked to help criminals escape justice, but it is surprising that he extended his help to criminals who carry a badge.
November 5, 2009, 9:19 pmDavid Nieporent says:
If the government requires you to tell the truth about criminal activity on the pain of not being a police officer, that seems like a quite constitutional condition, as there’s a direct nexus between the right and the condition.
I notice you omit anything about fidelity to the law, let alone the constitution.
November 5, 2009, 10:15 pmjccamp says:
All Garrity really says is that police officers who are interrogated in criminal investigations are subject to Miranda warnings like any other suspect. If an officer is Mirandized, then he/she can’t be penalized via a job action for availing himself of his constitutional rights. If the investigation is administrative only, then the officer’s statements can be compelled by threat of job action, but then those statements cannot be used in a criminal proceeding.
I can remember a time when internal affairs investigators could and would arrive at an officer’s domicile and demand to search without a warrant, under threat of a job action. in other words, cops had no 4th A protections from search and seizure at all. Decisions like Garrity are what changed that state of affairs.
It would be no different than an officer showing up at the place of employment of any of the posters here, and demanding the answers to questions which might implicate the poster in a crime, and threaten to have the poster fired from your job if you asserted your right to be free from self-incrimination.
BTW, it’s usually a fairly easy work-around from an investigative standpoint. And, like it or not, it’s here and it’s not going away.
November 5, 2009, 10:23 pmDavid Schwartz says:
That would be perfectly fine providing the way the officer attempted to get me fired was by convincing my boss that I had been accused of some wrongdoing related to betraying my employer’s trust and was unwilling to assist in the investigation. If my employer became convinced that the allegations were plausible and I was unwilling (and perhaps unable) to rebut them, that sounds like good grounds for termination.
Is there any case law that says that a person accused of a crime can’t be fired for refusing to respond to the allegations where the allegations relate to the employer’s trustworthiness to do his job?
November 5, 2009, 11:01 pmWill Aitchison says:
The Garrity rule actually wasn’t all that revolutionary. If the government uses its authority as an employer to compel an employee to answer questions upon pain of job forfeiture, that’s coercion. That means that the compelled statements cannot be used to prosecute the employee.
Everyone involved has a choice. The governmental employer can choose to compel the answers, knowing that immunity will flow, or it can make its administrative disciplinary case without the employee’s answers. Once the employee is compelled to answer question, the employee can choose to refuse to answer (and be terminated for insubordination, no doubt) or to answer and gain whatever benefits, real or chimerical, of use immunity.
Forty years later, Garrity shouldn’t be a novelty to any prosecutor or public employer.
November 5, 2009, 11:58 pmCornellian says:
Douglas liked to help criminals escape justice, but it is surprising that he extended his help to criminals who carry a badge.
I suppose Justice Douglas didn’t realize that the Bill of Rights only applies to people who are never charged with anything.
November 6, 2009, 1:39 amCornellian says:
That would be perfectly fine providing the way the officer attempted to get me fired was by convincing my boss that I had been accused of some wrongdoing related to betraying my employer’s trust and was unwilling to assist in the investigation.
I’m not so sure that’s perfectly fine. I don’t have any doubt that a private sector employer can fire an employee who refuses to cooperate with the police over some investigation, I’m just not so sure that a cop can talk the employer into doing that without the employer becoming in some way an instrument of state action.
November 6, 2009, 1:42 amDavid Schwartz says:
Cornellian: I don’t see any reason the government should not have any right, qua employer, that a theoretically perfect private and optimal employer could use (perhaps with the exception of indulging the prejudices of others).
It is not coercion to threaten to have someone fired for some conduct where that conduct objectively justifies firing them. It is not a “coercive threat” to say that if you do X, the rational and fair consequences of X will befall you. Failing to cooperate in an investigation into plausible allegations that you criminally violated your employer’s trust objectively justifies termination of employment.
November 6, 2009, 3:50 amDNJ says:
Well, I don’t know what to say to this. I don’t doubt that Mr. Justice Douglas sought to faithfully discharge his duty to uphold the Constitution of the United States and to do justice according to law. Do you? The fact that you may disagree with him of many issues does not, in itself, mean that he was not a fine judge. I disagree a great deal with Justice Scalia, but I would never question that he is an excellent judge. If you think he frequently deviated from the “correct” meaning of the Constitution and laws, then I would respond that I am skeptical that there is any “correct” meaning. If you object to his methodological approach, then I disagree. Pragmatism suitably tempered by principle (as, I believe, in the case of Mr. Justice Douglas) can be a very good mix.
November 6, 2009, 5:16 amjccamp says:
David –
“If my employer became convinced that the allegations were plausible and I was unwilling (and perhaps unable) to rebut them, that sounds like good grounds for termination.”
The first phrase controls. If your employer decided you had breached some condition of employment, then your job is legitimately at risk. The same goes for cops under investigation: if there exists grounds, they can be terminated regardless of their providing a statement or not. Change your example to “the cops go to your boss and tell him/her that you refuse to speak to them, and you should thus be fired.” That sounds a little different.
But I do understand what you’re saying. It used to mildly irritate me on occasion too, even though in theory I agree with it.
November 6, 2009, 8:22 amDavid Schwartz says:
Right, but that’s nothing like what’s happening here. It’s more like “refuse to speak to them about a job-related crime possibly involving a betrayal of the trust your boss has extended to you, thereby making it harder for your boss to protect his company from criminals”.
Suppose you work in a cubicle doing any job at all and someone commits a crime that involves your employer or workplace. Your boss is perfectly justified in firing you if you refuse to cooperate with the investigation into that crime. Your boss is entitled to loyal employees who will protect him against job-related crime and assist him in catching those who commit crimes against his company.
Sure, he can’t force you to talk. And you can always plead the fifth. But if he suspects a criminal betrayal of job-related trust he has every right to kick you out the door. (And that includes ratting out your friends if they steal from the office too.)
November 6, 2009, 9:45 amFloridan says:
EV: “I think that the judge probably didn’t rely on union rules, but instead relied on Garrity or cases or statutes that flow from it”
Then why the wording of the headline?
November 6, 2009, 11:24 amjccamp says:
David –
Almost all police departments enjoy civil service job protection, which most private jobs do not – excepting perhaps the UAW, I suppose. The point of civil service protections were to remove politicians and corruption from job decisions involving law enforcement. So the average cop has far more job protections built in than, say, a clerk at the shoe store, who probably could be fired for almost any reason except race or other protected issues.
Plus, in the example you cite, the employee at risk is now no longer a suspect himself, but more a potential witness who has no personal liberty stake in remaining silent. In such a case, a cop can be forced to give a statement via a threat to his job. He just can’t be prosecuted himself using the compelled statement. Others certainly can be prosecuted using his compelled statements.
Garrity says you can’t have it both ways: compel the statement by threatening the job, and lose the value of the statement for a prosecution against the person who made the statement. To allow otherwise would be to subvert the essence of the 5th A. It would be (roughly) analogous to compelling grand jury testimony via grant of immunity, and then revoking the grant and using the compelled testimony.
When you were in a position and had to deal with this daily or weekly, as I said, it was an irritant. But on reflection, I think it’s no contest, the right decision.
November 6, 2009, 12:34 pmNickM says:
Because it’s what the reporter said happened.
It’s a journalism FAIL.
Nick
November 6, 2009, 2:52 pmbud says:
IANAL, but the quoted decision (Garrity) seems to me to contradict every DUI decision out there.
I can refuse to blow in the balloon, but I will lose my driver’s licence. What distinguishes this case (espacially for, say, a truck driver) from that one?
In a DUI case, my right against self-incrimination has been side-stepped by the fiction that the removal of my driver’s license is not “punishment”, yet Garrity seems to say that, no, you can’t obliquely punish someone for asserting their 4th rights.
As a cynical layman, it looks to me like the operative principle here is “some are more equal that others” where the “more” determinant is “works for the government”.
November 7, 2009, 8:55 pmDavid Schwartz says:
Right, but this is a question of constitutional law, not civil service rules, right? It’s whether, as a matter of law, the government can compel a statement by threatening to fire you and then use it against you. The counter-argument would be that the threat makes it compelled and therefore inadmissible against you. So union rules have nothing to do with it.
And it does not subvert the essence of the 5th at all. The 5th does not say that you can refuse to testify with no consequences, it says the government cannot compel you to testify. That is, the government cannot make failing to testify a crime unless it gives you criminal immunity. It does not mean there cannot be consequences for failing to testify where those consequences are the natural and sensible result of that failure.
There is no Constitutional violation in the government saying that you can be employed as a police officer so long as you cooperate with any investigations that need your cooperation. A private employer could do the same thing and would be justified in doing so if they extended the same kind of trust that policemen get.
As I said earlier, there is no reason the government, as employer, should not do, and have the right to do, anything an optimum private employer would do. (With the sole exception of pandering to customer prejudice.)
The government firing you from your position as a police officer is the government acting as employer.
And I agree with bud’s point above as well. There are always consequences for exercising your rights. (Can the President’s press secretary exercise his free speech to explain his Nazi sympathies without fear of losing his job too?)
November 8, 2009, 3:13 pm