Wednesday, June 9, 2010

DA Refuses Immunity, Judge Dismisses Murder Charge

Allegheny County Senior Judge John K. Reilly Jr. dismissed a homicide charge against Kevin Doolin. He was charged in the March 12, 2009, shooting death of Albert Kolano, following a fight at the Longview Lounge outside of Pittsburgh.

The district attorney's office refused to grant immunity to a witness who the defense argued would provide exculpatory evidence. The witness's statement came to light following a drug investigation of a motorcycle gang by the state attorney generals office.

The DA argued that the witness was not credible and intended to commit perjury. The DA's office said, "This office can have no stronger interest than to prevent perjured testimony."

Judge Reilly did not agree. In unusual and dramatic fashion, Judge Reilly dismissed the charges against Doolin. According to the Pittsburgh Post-Gazette, the Judge held that the defense has a right to allow a jury to decide if the witness is credible. The circumstances of the case were "so fundamentally unjust," he wrote, that the dismissal was necessary.

In Pennsylvania, the district attorney has the exclusive right to determine what witnesses are entitled to immunity, 42 P.S. 5947. A witness who invokes his right against self-incrimination, may be compelled to testify in spite of the Fifth Amendment, if he is provided immunity from prosecution.

Judge Reilly acknowledged in his opinion that he has no authority to grant immunity to a witness. He also found that there was no reason why the Allegheny County District Attorney's office was withholding immunity, according to the Post-Gazette.

The issue of immunity for a witness goes to the fundamental constitutional question of separation of powers. Some who practice in the criminal courts complain that the issue of admission of evidence is a judicial function, yet immunity issues are left to prosecutors who derive their power from the executive branch of government.

There are some situations that raise an eyebrow when it comes to fairness and the issue of immunity. Take this example, Brady v. Maryland, 373 U.S. 83(1963)held that withholding exculpatory evidence violates due process "where the evidence is material either to guilt or to punishment." The holding required that the prosecution turn over all favorable information to the defense. Lets say the DA learns of a witness who could provide favorable testimony to the defense. The DA complies with Brady and turns the witness over to the defense(starting to sound familiar). The witness invokes his Fifth Amendment right not to testify. The DA refuses to provide immunity. The DA turned over exculpatory information that they then prevented from being used at trial.

There is also a federal immunity statute, 18 U.S.C. 6000. However, some Federal Circuits have created some exceptions that permit court intervention in witness immunity. The Third Circuit Court of Appeals has probably the most liberal exception to immunity. In Government of the Virgin Islands v. Smith, 615 F.2d 964 (3d Cir. 1980), the Court upheld judicial immunity for defense witness where the witness is available, testimony is clearly exculpatory and essential, and the government does not have a strong countervailing interest against granting immunity.

Other Federal Circuits have addressed the issue only if prosecutorial misconduct is present,Carter v. United States, 684 A.2d 331 (D.C. 1996); United States v. Chitty, 760 F.2d 425 (2d Cir. 1985).

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