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Safety (“DPS”) procedures required him to participate in the in- terview with Barrow, because he was not advised of his Miranda rights, and because he was not advised that the statements he provided were covered by Garrity, the State’s introduction of his statements at the grand jury proceedings violated his rights un- der Garrity. At the hearing, the State conceded that it could not introduce Scott’s statements at trial but argued that the introduc- tion of his statements in the grand jury proceeding did not require dismissal of the indictment. Following a hearing, the trial court granted Scott’s motion, finding that his statements to police were not voluntary.
The State appealed and argued that the trial court erred by granting Scott’s motion to quash. The appellate court agreed. It held that because other evidence was presented which did not vi- olate Garrity, the defendant failed to make the required showing that dismissal was the proper remedy. The court stated that “in ad- dition to Barrow’s testimony regarding Scott’s statements during the interview, the State also introduced the videotape of Scott’s approach to the intersection where the collision occurred and the impact, a diagram of the intersection and testimony estimating Scott’s speed at the time immediately before and at impact. Thus, [Scott] has not carried his burden of showing that the evidence on which the indictment was returned was based on wholly incom- petent evidence.”
The expression “hard cases make bad law” seems to apply here. Since the Supreme Court issued its famous opinion in the Oliver North case, courts have systematically narrowed the scope of pro- tections outlined in the North case.
Garrity’s progeny continued to expand and contract the con- tours of the protections first acclaimed in 1967. As those contours have been more specifically defined by fact-specific analyses, the seemingly simple principles pronounced by the court in Garr- ity have become difficult to navigate. Practitioners of municipal employment law, regardless of whether they represent employers or employees, have a vested interest in learning this area of law. In its Gardner decision, the court afforded the officers the same constitutional protections offered any other person accused of a crime: the right not to be compelled to testify against themselves. Gardner was told that a public officer questioned by a grand jury is required to sign a waiver of immunity to retain his or her em- ployment. Gardner refused to waive his immunity and was sub- sequently terminated from employment with the police depart- ment.
The court ruled that his dismissal, based solely on his refusal to waive immunity to which he was entitled under the Fifth Amend- ment, was not valid. Further, the court extended this protection when it prohibited the use of the compelled testimony or its fruits in a subsequent criminal prosecution of the witness. Gardner ex- plained the circumstances under which testimony may be com- pelled from a police officer despite his or her Fifth Amendment protections, what use that testimony could be put to and under what conditions a waiver may be made (when it is “knowing” and “voluntary”).
The Garrity rules have been further clarified and detailed in subsequent 7th Circuit and Illinois Court decisions. In 1973, the Seventh Circuit decided Confederation of Police v. Conlisk. In Confederation of Police, several Chicago Police Officers were sub- poenaed to appear before a grand jury for questioning regarding corruption within the police department. On advice of counsel, the officers asserted their Fifth Amendment right against self-in- crimination.
All the officers were disciplined or terminated because they asserted their Fifth Amendment right before the grand jury. Challenging their discipline, suit was brought by the terminated officers and their organization, the Confederation of Police. The Seventh Circuit held the terminations clearly ran afoul of Gardner. As such, the terminations were overturned, and the officers were
reinstated.
This decision — and many others in various circuits around the
country — have shown that courts have a preference for silence. Courts have held that silence and self-incriminating truth telling are both preferable to lying. It then held that silence is preferable to self-incriminating truth telling. Indeed, the preference for si- lence is so strong that one justice has equated the act of “availing oneself of the privilege” with the sole response of remaining silent.
In Atwell v. Lisle Park Dist., the 7th Circuit held that employees must be warned that their statements cannot be used in a subse- quent criminal matter before they can be disciplined for refusal to cooperate in an internal investigation. However, the employer’s duty to warn does not arise before the employee is questioned. The court explained that an employee’s refusal to attend a meet- ing is not permissible and her assertion of her Fifth Amendment privilege was premature. Put plainly, employees must wait until they are asked a question before they can assert a privilege.
In People v. Bynum, a Fourth District of Illinois case, an Illinois state trooper was convicted of “failing to reduce speed to avoid an accident.” The trooper was driving an unmarked squad car that collided with a bicyclist. After the accident occurred, the trooper was directed by a supervisor to complete a report and participate in an investigatory interview. The trooper knew he was required to follow all orders and that failure to complete the report or answer questions could result in discipline. The Illinois Appellate Court held an “overt threat” of dismissal was necessary to have Garri- ty protection arise. The court explained that the mere possibility of termination was not sufficient to create a coerced statement. Therefore, the court held the trooper’s conviction should stand.
The law is never static and is always changing. In order to weather the change successfully, it is important to recognize, an- ticipate and prepare for the transformation. Stay vigilant! d
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