Sometimes you can get away with gaming the system.  Sometimes not, as the defense found last week in State v. Gilbert, a case involving a subject not frequently encountered by criminal lawyers:  testimonial immunity. 

Gilbert had been convicted of murder and aggravated robbery, and while awaiting sentencing, sent several letters to the prosecutor proposing that he testify against his co-defendant.  They took him up on the offer.

One problem:  Gilbert could still appeal, and if he won he didn’t want to have his testimony used at his retrial, an understandable concern.  So right before his testimony, the lawyers clustered over at sidebar, and the prosecutor informed the judge of all this and requested immunity for Gilbert’s testimony.  The judge granted the request,  Gilbert testified, and the co-defendant pled out.

Fast forward a few weeks to Gilbert’s sentencing, which is where things get funky.  Gilbert’s lawyer makes a motion to dismiss the case, on the basis of Ohio’s immunity statute, RC 2945.34. 

As most criminal lawyers know, there are two types of immunity.  One is use immunity, where the state can’t use any of the statements made by the defendant:  if he testifies about his role in a murder, the government can’t use that testimony against him.  The other type is transactional immunity, which bars prosecuting him for anything related to the transaction he’s testifying about:  if he testifies about a murder, he can’t be prosecuted for the murder.  At all.

Use immunity is used on the Federal level and in most states, and is the only type required by the 5th Amendment.  Ohio is an exception to that:  the only kind of immunity recognized by the statute is transactional immunity.  So Gilbert argued that since he’d been granted immunity, he could no longer be prosecuted for the crime he’d already been convicted of, and that the conviction had to be vacated.

The trial judge didn’t buy it, and neither did the 8th District, in rather caustic terms.  The trial judge had denied the motion to dismiss, concluding that “the interests justice are not to be confused with the game of ‘gotcha,’” which the appellate court found to be “an exceptionally charitable assessment of the defense motion.”  The court concluded that the judge had no authority to grant immunity in the first place.  The statute allows the judge to grant immunity only under certain conditions — the witness refuses to answer a question, and the prosecutor makes a written request for immunity — and neither of those had actually happened here.

Essentially, the court held that the judge had granted the equivalent of use immunity, although there’s no provision for that in Ohio law.  Gilbert got the benefit of his bargain.   He was concerned that his testimony was going to be used against him if the case got reversed and sent back for a new trial, the court tells us, but we’re not going to reverse his case and send it back for a new trial, so we guess he doesn’t have to worry about that, huh?

The moral of the story — besides “don’t get too cute” — is that you never know what law is going to pop up and bite you.  As I said, immunity doesn’t come up too often, as demonstrated by the fact that this one got past one of the sharpest judges on the Common Pleas bench and the top trial lawyer in the prosecutor’s office.