A recent decision from the Ohio Supreme Court addresses some important questions under the rule of Garrity v. New Jersey, 385 U.S. 493 (1967). The Garrity rule states that if a public employee is compelled to answer questions as part of a disciplinary interview, neither the employee’s answers nor the “fruits” of the answers can be used to criminally prosecute the employee.
The case involved Anthony Jackson, a police officer who was on administrative leave from the Canton, Ohio Police Department. On May 30, 2006, Sergeant Jon Roethlisberger of the Perry Township Police Department responded to a call that there was a fight at Lew’s Tavern. Jackson and another person were involved, but neither wished to pursue criminal charges. While talking to a bar patron on the night of the incident, Roethlisberger learned that Jackson had possessed a firearm inside the tavern.
Lieutenant David Davis investigated the incident on behalf of the Canton Police Department’s Internal Affairs Unit. As part of this internal investigation, Davis ordered Jackson to submit to an interview and make a statement. At the outset of the interview, Davis gave Jackson a “reverse-Garrity warning,” which stated in part:
“During the course of this questioning, if you disclose information which indicates that you may be guilty of criminal conduct, neither your self-incriminating statements nor the fruits of any self-incriminating statements you make will be used against you in any criminal legal proceedings.”
Jackson gave detailed answers to questions regarding the May 30, 2006 Lew’s Tavern incident, and disclosed the name of a potential witness, Vince Van. No one connected to the investigation had previously been aware that Vince Van was a potential witness. After Jackson answered Davis’ questions, Davis continued to investigate by interviewing Van.
Davis testified before a grand jury on August 10, 2006. When Davis was asked whether he had spoken to Jackson about the incident, he acknowledged the existence of Jackson’s Garrity statement, but declined to divulge its contents. The grand jury returned an indictment against Jackson for possession of a firearm in a liquor establishment. The trial prosecutor later obtained a copy of the Internal Affairs investigation, including Davis’ statement.
Jackson filed a motion to dismiss, arguing that the State had improperly used the fruits of his Garrity statement. After conflicting decisions from the trial court and the Ohio Court of Appeals, the Ohio Supreme Court had to (1) define the meaning of “use” for Garrity purposes and (2) clarify the remedy for a Garrity violation.
In answering the questions, the Court first addressed Davis’ testimony before the grand jury. The key issue was whether Davis’ testimony amounted to “use” of Jackson’s testimony in a way that violated the Garrity rule. The State argued that since Davis did not actually divulge Jackson’s testimony to the grand jury, there was no “use” of the information.
The Court rejected the State’s argument, finding that “the ‘use’ against which Garrity protects is broad, encompassing evidentiary and non-evidentiary use of a compelled statement. It is not the extent of the prosecutor’s own knowledge of the contents of the Garrity statement that creates the problem here. The prosecutor chose to offer the testimony of the internal investigating officer who knew the substance of Jackson’s Garrity statement and who used the statement to further his own internal investigation. The State makes derivative use of a Garrity statement when the prosecutor presents to the grand jury testimony from a witness to the statement.”
The Court then turned to the fact that the trial prosecutor acknowledged having had a copy of the statement. The State argued that the mere fact that the prosecutor had knowledge of the contents of the statement did not mean that the State improperly “used” the statement. Once again, the Court disagreed.
The Court held: “We share the concern of the trial court and court of appeals that the prosecutor, who admitted having reviewed Jackson’s Garrity statement, was afforded an impermissible advantage in trial preparation. A defendant’s version of events provides the prosecutor with invaluable information, including the names of witnesses, potential defenses, and other information that could influence trial strategy. In other words, the prosecutor possessed the type of information that the United States Supreme Court was most concerned with in its Kastigar decision [on the use of immunized testimony]. The State makes derivative use of a Garrity statement when the prosecutor reviews the statement in preparation for trial.
“The prosecutor’s use of the statement during trial preparation not only violated Jackson’s constitutional rights, but also revealed that the police department broke its promise to Jackson that neither the statement nor the ‘fruits’ of the statement would be used in a later criminal proceeding. When such a promise has been made to a public employee, the public employer should not provide the prosecutor with the compelled statement.
“We note that a public employer can ensure that it does not violate the defendant’s right against self-incrimination only by refraining from providing a compelled statement to the prosecutor when a criminal proceeding ensues. A bright-line prohibition against providing a compelled statement to a prosecutor is both workable and practical. First, because a prosecutor is not permitted to make any use of a compelled statement, denying the prosecutor the opportunity to view the statement will not hinder the prosecutor’s ability to prepare for trial. Second, when a defendant cannot allege that the prosecutor has made use of the statement, there is no need to conduct a time-consuming hearing. Finally, when there is no threat that a prosecutor will eventually see the contents of a compelled statement, public employees will be more willing to comply with internal investigations.”
The Court then turned to the remedy that flows from Garrity violations. The Court found that “whenever compelled testimony is used against the witness who provided it, any error cannot be held harmless. In this case, Jackson’s statement was also used to obtain the indictment. Therefore, dismissal is the appropriate remedy.”
Though it did not need to do so since it found the indictment should be dismissed, the Court went on to address the remedy for the prosecutor’s review of the internal affairs file. In language that can best be characterized as unclear, the Court found that “when a trial court rules after a hearing that a prosecutor has used the defendant’s compelled statement in preparation for trial after indictment, the appropriate remedy is for the trial court to suppress that statement and all evidence derived from the statement. We acknowledge that a trial court will be unable to fully suppress all impermissible knowledge gained by a prosecutor who reviews a Garrity statement. However, just as the exclusionary rule operates to discourage compelled confessions, which may provide the State with information otherwise unobtainable, suppression of a Garrity statement and its derivative evidence will discourage use of the statement in violation of the employee’s Fifth Amendment rights.”
Only three of the Court’s seven justices completely agreed with the Court’s opinion. Two others thought the Court did not go far enough, and argued that “if a prosecutor has reviewed a defendant’s Garrity statement before trial and fails to carry the burden to establish an independent source for the evidence, the only appropriate remedy is dismissal of the indictment.” Two dissenting judges contended that “the State’s using Lt. Davis, who was present when Jackson gave his compelled statement, as a grand jury witness did not constitute derivative use of Jackson’s statement.”
State of Ohio v. Jackson, No. 2010-Ohio-721 (Ohio 2010).
This article appears in the April 2010 issue