Ohio Supreme Court Excludes Self-Incriminating Statements Made by Employees During OIG Investigation of Workplace Misconduct

Yesterday, the Ohio Supreme Court held that it was improper under the Fifth Amendment to admit prior statements made by criminal defendants during a workplace investigation by the Ohio Inspector General’s office when the employees had been warned in writing by their government employer that failing to cooperate with the investigation could lead to disciplinary action and termination.  State v. Graham, 2013-Ohio-2114.   Pursuant to Garrity v. New Jersey, 385 U.S. 493 (1967), statements obtained from a public employee under a threat of losing his job are unconstitutionally coerced and inadmissible in subsequent criminal proceedings.  In this case, while there had been some ambiguity about when each of the defendant employees had been warned that they could be disciplined if they failed to cooperate (and this ambiguity motivated the appellate court to exclude testimony about such warnings and order the admission of the self-incriminating statements), there was no dispute that they each had in fact received such a warning.  Therefore, their self-incriminating statements had been coerced in violation of the Fifth Amendment and could not be admitted over objection at their criminal trials.  The Court, however, refused to find that all investigations by the OIG are necessarily coercive in the absence of a threat of discharge.

According to the Court’s opinion, the OIG received a report in September 2009 that a local office of the Ohio Department of Natural Resources had failed to properly investigate, report and discipline an employee for a 2006 incident of misconduct. ODNR responded that it had investigated and handled the incident in 2008.  Dissatisfied, OIG conducted its own investigation between December 2009 and February 2010 that largely focused on the 2008 investigation.  Employee witnesses signed a statement acknowledging that they could be criminally prosecuted for making false statements.   They had also received an unsigned and undated statement from ODNR that they could be disciplined or terminated for failing to cooperate with the investigation. 

 

[E]ach received an ODNR “Notice of Investigatory Interview,” which informed them that their refusal to cooperate could subject them to discipline. The notice contained the following warning: “This interview is part of an official investigation and failure to answer questions, completely and accurately, may lead to disciplinary action up to and including termination.”

The defendant employees admitted the incident occurred as reported, but decided to verbally reprimand the employee instead of reporting him to the ODNR Director for a possible criminal violation.  They claimed they had done so because of inconsistent past practice, the employee’s tenure and the fact that it was clear that the employee had not tried to disguise his conduct, but the inspector suspected it was to avoid the matter becoming public through a grievance of any greater disciplinary action.  The OIG report was sent to the local prosecuting attorney, which convened a grand jury.  The defendant employees were indicted for obstruction of justice.  The trial court suppressed the incriminating statements made during the OIG investigation, but was reversed on appeal on the grounds that the OIG never threatened them with job loss and the ambiguous testimony about when they received the ODNR warning should have been excluded.  This appeal followed.

 
As previously discussed here, public employees cannot be compelled to cooperate with an internal investigation in violation of their Fifth Amendment right against self-incrimination by being told to choose between maintaining their employment and incriminating themselves. Consequently, they are often given a “Garrity” warning: nothing said during the internal investigation can be used against them in a criminal prosecution, but failing to respond completely and truthfully to the questions could lead to disciplinary action.  In this case, none of the defendant employees were given a Garrity warning prior to the OIG investigation and their statements were used before the grand jury and in the subsequent criminal prosecution.    

A state may compel a public employee’s cooperation in a job-related investigation, so long as the employee is not asked to surrender the privilege against self-incrimination. Id. at 84. For example, the state may compel incriminating answers from its employee if neither those answers nor the fruits thereof are available for use against the employee in criminal proceedings. Id.; Jones v. Franklin Cty. Sheriff, 52 Ohio St.3d 40, 44, 555 N.E.2d 940 (1990) (a grant of immunity preserves the privilege because no statement made in that context is incriminatory). But when the state compels testimony by threatening potent sanctions unless the witness surrenders the constitutional privilege, the state obtains the testimony in violation of the Fifth Amendment, and it may not use that testimony against the witness in a subsequent criminal prosecution. Cunningham at 805; State v. Jackson, 125 Ohio St.3d 218, 2010-Ohio-621, 927 N.E.2d 574, ¶ 14 (plurality opinion) (a prosecutor cannot make “direct or derivative use” of statements that were compelled under threat of termination). This balance “provid[es] for effectuation of the important public interest in securing from public employees an accounting of their public trust.” Cunningham at 806.

Some lawyers have argued that Garrity only applies to police officers, but the U.S. and Ohio Supreme Court disagrees:  

In Garrity, the United States Supreme Court held that the constitutional protection “against coerced statements prohibits use in subsequent criminal proceedings of statements obtained under threat of removal from office, and that it extends to all, whether they are policemen or other members of our body politic.” Id., 385 U.S. at 500, 87 S.Ct. 616, 17 L.Ed.2d 562.

In this case, the employees were never explicitly threatened by the OIG with the loss of their job if they refused to cooperate with the OIG investigation, but they were warned by their employer, the ODNR, about possible disciplinary action (which could include termination).  Therefore, the Court explained the circumstances when an implicit threat rises to the level of coercion:

[F]or a statement to be suppressed under Garrity, the employee claiming coercion must have believed that his or her statement was compelled on threat of job loss and this belief must have been objectively reasonable. In examining whether an employee’s belief was objectively reasonable under the circumstances, evidence of an express threat of termination or a statute, rule, or policy demanding termination will almost always be sufficient to show coercion.

In this case, there had been some ambiguity about when each of the defendants received the written ODNR warning in connection with the investigation.  But the HR employee had been clear that each defendant received such a warning.   

Appellants’ receipt of the ODNR notice is dispositive. Although appellants did not testify at the suppression hearing, the threat of discharge contained in the notice was sufficient proof that they subjectively believed they could be fired for refusing to cooperate with Nichols [from OIG]. The threat also establishes that their belief was objectively reasonable, as it represented some   demonstrable state coercion above the general directive to cooperate. Because appellants spoke to Nichols after being expressly warned by ODNR that their failure to do so would subject them to disciplinary action up to and including termination, we conclude that their statements were compelled under Garrity, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562, as interpreted by Friedrick, 842 F.2d 382.

The Court also rejected the argument that OIG cannot as a matter of law coerce employees under the Fifth Amendment because it lacks the authority to arrest, criminally prosecute or discipline witnesses.  The Ohio Revised Code invests the OIG with broad investigatory powers.

Although the OIG cannot directly discipline employees of other state agencies, it is statutorily required to “report the wrongful acts or omissions, as appropriate under the circumstances, to * * * the person’s public or private employer for possible disciplinary action.” R.C. 121.42(C). In this respect, the purpose of the OIG’s investigation is similar to the scope of the investigation conducted by the state attorney general in Garrity, who was ordered by the state supreme court to make a report.

Nonetheless, the Court also rejected the argument that every OIG investigation is necessarily coercive.

Other than the express threat contained in the ODNR notice, there is scant evidence establishing that appellants subjectively believed that they were compelled to cooperate with the OIG investigation. . . . Unlike the officers in Garrity, appellants were neither threatened by their interrogator nor confronted with a statute mandating removal from office.  . . .  R.C. 121.45 does not, as appellants suggest, threaten any form of employment-related discipline. Nevertheless, the express threat in the ODNR notice was sufficiently coercive so as to trigger the protections of Garrity.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Ohio Supreme Court Dismisses Criminal Indictment Based on Prosecutorial Misuse of Information From Garrity Statement.

This morning the Ohio Supreme Court issued a decision dismissing a criminal indictment against a police officer because the prosecutors reviewed the information gathered from a Garrity statement obtained during an internal investigation even though no information from the statement was presented to the grand jury or during any trial. State v. Jackson, Slip Opinion No. 2010-Ohio-621. In short, the Court held that no one involved in an internal investigation (which involves obtaining a Garrity statement) may testify before the grand jury and neither the grand jury prosecutor nor the trial prosecutor may review the Garrity statement in preparation for trial even if no evidence or witnesses obtained from the Garrity statement is presented to a jury.

According the Court’s opinion, a police officer had been placed on administrative leave and then was involved in a bar fight, where one of the patrons informed the responding patrol officer that the suspended/fighting officer had possessed a firearm inside the tavern (in violation of Ohio law). The suspended/fighting officer was then investigated by Internal Affairs. Under Garrity v. New Jersey (1967), 385 U.S. 493, as a public employee, he could not be compelled to cooperate with the internal investigation in violation of his Fifth Amendment right against self-incrimination by being told to choose between his maintaining his employment and incriminating himself. Rather, he was given a “Garrity” warning: nothing he said during the internal investigation would be used in a criminal prosecution, but failing to respond completely and truthfully to the questions could lead to disciplinary action. After receiving the warning, he answered the questions of the Internal Affairs investigating officer and identified a witness who was otherwise unknown to the police.

The Prosecutor’s Office then presented evidence to the grand jury about the officer’s unlawful possession of a firearm in a tavern. This evidence did not include any admissions or other information from the accused officer, including any evidence about the new witness. It did, however, include testimony from the Internal Affairs investigating officer limited to whether an officer should carry a firearm while on administrative leave and to the fact that he had interviewed the officer as part of an internal investigation. He did not disclose any information obtained from the officer during the Internal Affairs investigation (although the grand jury could conceivably presume the content of the statement from the fact that the officer was being prosecuted following the interview).

A new prosecutor was assigned to handle the trial and somehow both the grand jury and trial prosecutors came into possession of the officer’s Garrity statement before the commencement of a criminal trial. In fact, it was unclear whether the grand jury prosecutor came into possession of the statement before the grand jury returned the indictment. When the officer learned this, he moved to dismiss the indictment on the grounds that the government had improperly used his Garrity statement to assist his criminal prosecution. The trial court agreed, but the Court of Appeals reversed. The appellate court determined that the trial preparation of the prosecuting attorney should not benefit from a review of the Garrity statement, but that the indictment had not been tainted because the Internal Affairs officer did not reveal any information from the Garrity statement to the grand jury. Thus, the proper remedy was to purse the prosecutor’s file of the Garrity statement, reassign the case and recommence the process from the time of the indictment. The Supreme Court reversed and held:

In a criminal proceeding against a public employee, the state may not make direct or derivative use of the employee’s statement that was compelled under
threat of the employee’s removal from office (“Garrity statement”) — The state makes derivative use of a Garrity statement when the prosecutor presents to the grand jury testimony from a witness to a Garrity statement — The state makes derivative use of a Garrity statement when the prosecutor reviews a Garrity statement in preparation for trial — When the state fails to prove that it did not make any use of a Garrity statement in obtaining an indictment, the indictment must be dismissed.

Rather, the Court concluded that the prosecution must be able to prove that its evidence was independently derived of the Garrity statement:

[T]he Kastigar court established a two-prong test that the
prosecution must satisfy where a witness makes the claim that his or her immunized testimony was used: (1) the government must deny any use of the accused’s own immunized testimony against him or her in a criminal case; and (2) the government must affirmatively prove that all of the evidence to be used at trial is derived from sources wholly independent of immunized testimony.” (Emphasis sic.) State v. Conrad (1990), 50 Ohio St.3d 1, 4, 552 N.E.2d 214.

Thus, in this case, the prosecution violated Garrity by utilizing a witness from the 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.” No harm which results from a broken Garrity promise can be harmless. Thus, the only proper remedy is dismissal of the indictment. “When the state fails to prove that it did not make any use of a Garrity statement in obtaining an indictment, the indictment must be dismissed.” On the other hand, if the misuse had only occurred after the indictment had been obtained, the proper remedy would be limited to suppressing the improper evidence during the criminal trial (even if the trial prosecutor had knowledge of the Garrity statement).

Although Court recognized that this will create a hardship for small departments and entities (which might not have enough qualified personnel to both conduct the internal investigation and the criminal investigation), it suggested delaying the internal investigation until after the conclusion of the criminal investigation (which would then permit the accused employee to continue working and drawing a public salary following a legal breach). The Court did not suggest, but should be consider, retaining another entity or department to conduct the internal investigation.

The Court further explained:

Although the issue of liability for turning over a compelled statement is not before us, 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 Kastigar 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.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.