A hot issue has come up in a high-profile federal trial underway in Los Angeles. Ex-Sheriff big wig Paul Tanaka took the stand last week in his obstruction of justice case, and now the defense wants disgraced former Sheriff Lee Baca to testify as a hostile witness (that is, a witness who doesn’t want to help the side that’s called him) on Tanaka’s behalf. The defense filed a motion asking the court to grant immunity to Baca, thereby making Baca available as a witness, and to admit certain Baca statements that would come in to hurt Baca and thereby benefit Tanaka.
Each participant in the case – Tanaka, the US Attorney, and now the reluctantly dragged-into-Tanaka’s trial Lee Baca, has fundamental rights at stake, and the judge’s ruling will be of critical importance to the outcome of the case, and more importantly, whether Tanaka and the government each get a fair trial.
Tanaka: Every defendant has a right to a fair trial, to call witnesses, and to put on a defense. Tanaka claims that the government purposely has not dismissed all charges remaining against Baca because the government wants to make it impossible for Baca to testify in Tanaka’s defense. Tanaka believes that if Baca testified, Baca would incriminate Baca and thereby help exonerate Tanaka. With the government not dismissing remaining charges against Baca following Baca’s guilty plea, Tanaka thinks the government is playing on Baca’s fear of further self-incrimination in order to deprive Tanaka of necessary evidence and testimony before the jury.
US Attorney – the government maintains its position that it alone has the discretion to charge, not charge, prosecute, not prosecute, immunize, not immunize. And the government is correct. The Constitution’s Separation of Powers Clause gives the government the sole discretion to decide how to proceed against whom. The government also ordinarily has sole discretion to immunize or not immunize a witness. Here, the government has elected to not immunize Baca. In other words, Tanaka’s theory about the government’s strategy could be completely correct – and the US Attorney’s Office may be completely within its right to do just that.
Baca – Lee Baca faces additional exposure if he testifies. So the only advice Baca is going to get from his lawyer is, “Unless you are granted immunity for what you are about to say, all you’ll be doing is taking the Fifth.” And Baca will listen and comply.
The Judge – the court must decide whether the evidence desired by Tanaka is so important that without it Tanaka cannot receive a fair trial; and whether the court has the authority to immunize a witness when the government is not offering immunity. There may be a very rare circumstance under which the court may grant witness immunity; the court will want to be extremely careful in seeing whether this doctrine applies at all, and in this case.
My Prediction: The court will lean on the government to find a way to get some of the desired evidence onto the record and before the jury; the court will warn the government that if the government’s position remains status quo, a conviction against Tanaka could be threatened on appeal if a reviewing higher court perceives the government was unreasonably intransigent. A ruling should come soon.