When Cops Invoke

The killing of Timothy Russell and Melissa Williams in a hail of 137 bullets at the end of a car chase gave rise to a generic question, why do car chases so often end with death, even after the chase is over?  But now that Cleveland Police Officer Michael Brelo is on trial for involuntary manslaughter, a new question is raised: why won’t the other cops present testify against him?

A seventh police officer invoked her Fifth Amendment right against self-incrimination Thursday in the voluntary manslaughter trial of fellow Cleveland officer Michael Brelo.

Officer Erin O’Donnell, who participated in the Nov. 29, 2012 police chase and shootings that resulted in charges against Brelo, entered the courtroom with her attorney, Mark Stanton. Prosecutors asked her if she had told investigators the “whole story” of what happened on the night of Nov. 29, 2012, at which point O’Donnell invoked her Fifth Amendment right.

The answer puts the question back in the court of the prosecutors, as it raises the question of why they didn’t indict the other officers as well, or why they won’t confer immunity on the witnesses, thus taking away their right to invoke the Fifth.

The prosecution has taken a curious position with regard to the uncharged cops refusing to testify without immunity:

Prosecutors had filed motions before the start of the trial opposing police officers who may invoke the Fifth Amendment. And they were quick to voice their opposition in court as well.

“We don’t believe police officers should be granted immunity for testifying,” assistant prosecuting attorney Adam Chaloupka told the court. Chaloupka said police officers should trust the Prosecutor’s Office to not to charge them for testimony given during the trial.

Tough as it may be for some to stomach, the scenario playing at Brelo’s trial presents a rather difficult, if unusual, problem.  In many instances, police officers are not afforded the same constitutional rights that are given others.  For example, they do not have the right of free speech when speaking in their official capacity as a police officer.

Why then, it might be argued, shouldn’t cops be afforded the Fifth Amendment privilege against self-incrimination?  After all, they aren’t being called to testify as random people who just happened to witness an event, but as police officers in the performance of their duties.  They are witnesses because they are cops. They are witnesses because of what they did and observed in the course of the performance of their duty, while on public time and the public dole.

What distinguishes a right denied cops from another right to which they’re entitled?

Cuyahoga County Prosecutor Timothy J. McGinty, who has been present but silent at the proceedings until Wednesday, told the court that as a matter of public policy police officers should be required to testify without being able to demand immunity.

“It won’t end with this,” McGinty told the court. “I am reluctant to start doing it here and now for fear of the future result.”

While McGinty’s claim of public policy has some superficial appeal, as does his concern for what allowing cops to invoke the Fifth will mean for future prosecutions of killer cops, it’s hardly a principled approach.  Public policy is nothing more than a preferred choice, and if constitutional rights are subject to being ignored based on what most pleases the people, there is little chance for the rest of us.  The primary need for constitutional rights is to protect the most hated, and what’s good for the many is rarely what the Constitution has to offer.

So there’s a problem. What doctrinal basis explains why it is different to deny police officers, using the authority of their position, the First Amendment right of free speech, from the Fifth Amendment right not to bear witness against oneself?

Both situations bear the similar accoutrements of authority. In fact, the connection to authority is stronger when it involves the cop’s direct performance of his duty than when an off-duty cop uses his shield to bolster the impact of his speech.

Of course, it “feels” very different.  Certainly, a police officer can, and should, be susceptible to prosecution for a crime committed in uniform just as he would be out of uniform.  And once prosecuted and convicted, he serves his sentence in stripes, like any other convict.  Does this outcome devoid of the authority of the job explain why a cop can invoke the Fifth but not the First?

While the facile answer in the Brelo trial is that the other cops involved refuse to testify against one of their own, and are using the invocation of the Fifth as an excuse to avoid an unpleasant duty, that doesn’t mean they don’t have the constitutional right to do so.

30 thoughts on “When Cops Invoke

  1. Piedmont

    It’s called prosecutorial discretion. Pick the least-culpable officer who can give you the testimony you need, grant them immunity, and then bewail the imperfections of the modern American justice system over a beer after work. Make it clear to their chief that every case involving that officer in the future will be nolle prossed.

    1. SHG Post author

      That’s the prosecutor’s argument here: trust us. Not even the cops buy that one. Prosecutorial discretion isn’t a doctrinally principled answer, but the sinkhole of prosecutorial self-delusion. If constitutional rights depend on the kindness of prosecutors, there are no constitutional rights.

      What is amusing, on the other hand, is why prosecutors are so narcissistic as to belief that society ought to leave it up to them to decide what rights they deserve.

      1. Maximillian

        I feel like this comment left me behind, and I was (reluctantly) agreeing with you up to that point.

        What part of the poster’s suggestion didn’t work? Was it the suggestion to choose the least bad witness and offer that one immunity? Is that the use of discretion that you object to?

        Or am I missing your point entirely?

        1. SHG Post author

          Apparently so. My issue is with relying on “prosecutorial discretion” (which is a euphemism for “we’re the government, you can trust us,”) rather than a doctrinal solution. It’s that whole “nation of laws, not of men” thing. We either have a well-conceived rule that applies to everyone, or it’s left to the prosecutor’s whim.

  2. Bartleby the Scrivener

    I had feared you would take the opposite view, and I am very glad that you did not; I have a great appreciation for principles…most particularly those that are maintained when it’s not fun to maintain them. While I resent the idea of a police officer protecting a police officer from prosecution by refusing to testify, I hate the idea of abrogating their fundamental rights because it’s so hard to prosecute them even more.

      1. Bartleby the Scrivener

        As bad as this hurts, you found a way to make it hurt even worse.

        I say this not as criticism; we need to feel this pain…it is important that we do, so we don’t just cavalierly ignore this person’s death and the thin blue line that protects bad cops from prosecution, even when said prosecution is warranted.

        I tend to think this is one of those situations where our only choices are bad ones and we have to choose the least bad of those choices.

  3. SamS

    Can the employer, as a condition of employment, require police officers to waive their fifth amendment rights ?

      1. Kentucky Packrat

        I can’t imagine that the government could force police officers to waive rights, but I think they could say “Talk, or you’re fired with cause”.

        Police departments can regulate speech while in uniform & on pay (and no right to do so off-shift). They can regulate other behavior on duty and on pay. A department should be able to say “One of your conditions of employment is that you show up in that courtroom during paid time, and tell the truth, the whole truth, and nothing but the truth. Fail to do so, and you’re fired.”

        This case also makes it hard for these cops to investigate any crime in the future. A lawyer doing cross-examination would only have to ask one question about the scenario, and the cop’s going to have to invoke again. They can probably be fired or laid off for this, even if the department has to do so “without cause”.

        I don’t blame these police officers from invoking, they might well even need to do so. However, having a right doesn’t mean you can’t also face consequences.

        1. johnt_mn

          Garrity v. New Jersey says they can compel them to talk. But in exchange any statements they make cannot be used against them in a criminal proceeding.

          1. SHG Post author

            Garrity goes to whether the waiver of the right to remain silent is voluntary when it’s obtained upon penalty of loss of employment. This is clearly implicated in many of the answers, but it doesn’t resolve the doctrinal question.

        2. SHG Post author

          …(and no right to do so off-shift).

          This may be what you think the law should be, but is not the law. Be more circumspect when you state your opinion (with which, I note, I strongly disagree) about what you think the law should be. One of the rules here is that no one is entitled to make people stupider. That includes you.

  4. Peter H

    “What doctrinal basis explains why it is different to deny police officers, using the authority of their position, the First Amendment right of free speech, from the Fifth Amendment right not to bear witness against oneself?”

    The limitations on an officer’s speech as outlined in Garcetti are related to the discipline his government employer may impose as an internal matter. That discipline is necessarily limited to termination. In contrast, the discipline to be imposed by forcing someone to testify in lieu of the 5th Amendment right against self incrimination has nothing to do with the employer/employee relationship. The discipline is that of putting you in prison for the crimes to which you are compelled to confess, or for perjury.

    The best case to be made is that a police force could (like a private employer could) terminate an employee for invoking their 5th amendment rights, when they were subpoenaed to testify as part of their official duties. This would be a termination for the cause of “it’s your job to testify and you refused.”

  5. David C

    The cops should have the right to not self-incriminate. However, if while on duty, they witness a crime and then take the fifth, that should be a fireable offense because it means they are refusing to do their duty. Testifying about crimes is a major part of their job.

    The prosecutorial discretion argument is silly. Why should the cops believe the prosecutor won’t charge them if he refuses to provide them with immunity?

  6. John S.

    If one of the officers pleading the fifth in this matter testified in another trial against a defendant, would the defendant’s lawyer be able to introduce their prior fifth-taking to discredit the officer as a witness?

    My gut says the defense wouldn’t have a snowball’s chance in hell of convincing the judge to allow that, but I could see the prosecution doing that to a witness who’d previously plead the fifth and making it at least through the first round of appeals.

  7. John Barleycorn

    Can we can expect this new trend of not overcharging nor the stacking of charges to encourage pleas and or cooperation to continue in Ohio?

    Thirteen of the officers “involved” fired their weapons.
    Two granted immunity from prosecution.
    One on trial for two counts of manslaughter.

    Pro Tip: Blue team, don’t forget to blend in with your teammates from the blue group while emptying your clip in the future. Especially if whomever you are shooting at isn’t armed.

  8. ppnl

    If any of the cops testified against one of their own it would probably end their career. This is the cultural issue that must change.

    The prosecutor should give immunity to the witnesses just to help change that culture. He will not partly because he is part of that same culture.

    If I were president I would pardon the witnesses just to make them testify.

  9. Not Jim Ardis

    Forgive the poor paralegal, but I can only but wonder…

    While Officer Brelo’s invocation of his Fifth Amendment right to refuse to answer cannot be cited by the prosecution as evidence of guilt, can a witness’s refusal to answer be used in a “his fellow officers refuse to answer important questions about what happened. What does that tell you?” way at closing?

    1. SHG Post author

      An interesting question. The invocation certainly can’t (or at least, shouldn’t) be used against the individual invoking, but that doesn’t impact another person. Then again, the invocation of rights proves nothing, making it immaterial.

      1. Not Jim Ardis

        I’m sure a prosecutor who actually wanted to convict a cop could find a way.

        Something along the lines of “We ask his fellow officers pointed questions, questions that could have been answered to help the defendant or to hurt them. Instead of testifying – under penalty of perjury – in a manner that would have bolstered the defense’s claims, they opted to not answer. What does that tell you, members of the jury, about what those answers might have said? Do you think those unspoken answers would have helped, or hurt, Officer Brelo? If they would have helped, why were they not given? Why would a fellow officer not help one of their own?”

        1. SHG Post author

          …they opted to not answer. What does that tell you, members of the jury, about what those answers might have said?

          Legally, absolutely nothing. And it better stay that way, Mort.

          1. bacchys

            It not only tells you absolutely nothing, it ignores the glaringly obvious possibility that the reason the officer is refusing to answer “pointed questions” that would help the defendant officer is the testifying officer committed crimes that would be revealed by answering those questions.

  10. David Woycechowsky

    Maybe a “compromise solution” as follows:

    When one on-duty police officer B refuses to testify in a prosecution of on-duty police officer A then the prosecutor gets increased leeway, in the prosecution of officer A, to argue unfavorable inferences that may be drawn from the silence of officer B.

    So far as I know, this is not the current state of the law, but maybe it would be a good reform for addressing this infrequent situation.

    1. SHG Post author

      Well sure, watering down the protections of the 5th Amendment to accommodate prosecutorial efficiency might work. After all, what could possibly go wrong?

      1. David Woycechowsky

        Under my proposal, Officer B would still have full 5A protection with respect to criminal charges against Officer B. It is just that Officer A would not get the advantage of that invocation of 5A rights by Officer B. In light of that, and with respect, I am not sure that “watering down” is a good metaphor here.

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