State v. Morales has me thinking about the old Gore Vidal quote about shaking a hand that shook a hand that shook the hand of Lincoln. Like Vidal, Morales can trace its nexus to the ineffable. In Morales’s case, there are two proverbial Lincolns: Learned Hand, who in 1959 authored United States v. Maloney, in which 5 individuals conspired to “pretend falsely” that one of them was an FBI agent in order to blackmail a physician who had performed an abortion; and a trifling matter entitled United States v. Alger Hiss. Maloney and Hiss figure prominently in the Minnesota Supreme Court’s 1964 State v. Mitchell, which can only be described as Morales’s daddy. Pretty storied lineage for a case about the murder of a pimp’s assistant at a desultory Cedar Avenue whorehouse.
Murder of the Pimp’s Assistant
Victor Mesa-Ortiz’s job en la casa de la prostitución was to collect money from the patrons and pay the prostitutes. He was working one evening when Felipe Vega-Lara, Tarun Solorzano-O’Brien (who was not charged) and a man wearing a brown hat with a brim, whom no one save Vega-Lara could identify, came in. Various individuals wandered in and out of the living room while the men were present, but the only eyewitnesses to Mesa-Ortiz’s murder were Vega-Lara and the brown-brimmed hat man. Vega-Lara’s and Morales’s trials were severed; Vega-Lara was tried first. He testified at his own trial that he and Morales intended to rob the brothel and that both carried loaded guns into the house that evening. Vega-Lara went into a bedroom to have sex (a multitasker, apparently). He testified that when he returned to the living room, he saw Mesa-Ortiz and Morales (in his hat) struggling over Morales’s gun. Confronted with this dark tableau, Vega-Lara pulled out his gun and shot Mesa-Ortiz. He was convicted of unintentional second-degree felony murder.
Morales’s trial took place while Vega-Lara’s appeal was pending. The state filed a motion to compel Vega-Lara’s testimony under a grant of use immunity pursuant to Minn. Stat.§ 609.09. Vega-Lara resisted, arguing that he had a valid Fifth Amendment privilege notwithstanding the grant of immunity because the state could charge him with perjury if his testimony at Morales’s trial conflicted with what he said at his own trial. The trial court granted the state’s motion. At Morales’s trial, the prosecutor called Vega-Lara and asked a series of questions that presented a detailed narrative of the state’s theory of the case. Vega-Lara responded to everything with some variation of “plead the Fifth”/”refuse to answer.” At some point, the prosecutor began to also ask Vega-Lara about his testimony at his own trial. The Court’s opinion includes an excerpt from the direct examination:
State: Did you — did Angel Morales point the gun at Victor Mesa-Ortiz for the purpose of robbing him?
Vega-Lara: Refuse to answer.
State: Did you previously testify that he pointed the gun at Victor Mesa-Ortiz —
Vega-Lara: Refuse to answer.
State: — for the purpose of robbing him?
Vega-Lara: Refuse to answer.
State: Did Victor Mesa-Ortiz resist when Angel Morales pointed the gun at him and tried to rob him?
Vega-Lara: Refuse to answer.
State: At that point did you enter the — did you previously tell the jury that Victor Mesa-Ortiz started struggling with Angel Morales over the gun?
Vega-Lara: I refuse to answer.
No License for the Unscrupulous
The trial-by-intransigent-witness phenomenon gives rise to a small constellation of issues. The first of these is whether Vega-Lara retained a Fifth Amendment privilege once the trial court granted him use immunity. The operative question is whether use immunity is “coextensive” with the Fifth Amendment. Relying on United States v. Apfelbaum, Morales holds that it is, even though “swearing falsely” under a grant of immunity will expose one to a perjury prosecution, whereas clamming up and invoking the Fifth would forestall that hazard. The coextensivity analysis focuses on the the Fifth Amendment’s “protections” (against compulsory self-incrimination) as opposed to its “benefits” (remaining silent). You have a constitutional right not to incriminate yourself; you don’t have a constitutional right to lie. A “grant of immunity may be a constitutionally adequate response to invocation of the privilege without perfectly replicating the effect of total silence.” The Court’s holding is in line with the great weight of authority on this issue; still, the reasoning feels forced and sophistic. Denying a Fifth Amendment privilege to an individual with use immunity may have less to do with coextensivity than with prophylacticity. The courts are not about to apply the Fifth Amendment so as to give the unscrupulous a license to lie under oath.
Error of the Second Variety
The Court turns next to the question whether State v. Mitchell applies in a case in which a witness asserts an invalid privilege. Mitchell holds that it can constitute prejudicial misconduct when the state calls and/or questions a witness who refuses to testify. The harm, in the words of Learned Hand, is that “[w]hen a witness claims his privilege, a natural, indeed an almost inevitable, inference arises as to what would have been his answer if he had not refused.” That inference, unlikely to be a flattering one, is liable to rebound from witness to defendant. The Morales Court clarifies that Mitchell applies even when the witness claims an invalid privilege since a defendant may be as wronged by that individual as by the one whose claim of privilege is well-founded.
Mitchell holds that there are two kinds of prosecutorial conduct that can give rise to reversible error. Under the “bad faith” theory, reversible error results, regardless of actual prejudice, “where the prosecution calls a witness for the purpose of prejudicing the defendant in the minds of the jury, knowing that the witness will claim immunity.” Under the “unfair prejudice” theory, reversible error results if the state calls a witness in good faith and the state’s examination so prejudices the defendant that he is denied a fair trial.
Morales involves error of the second variety. The Court holds that the state did not call Vega-Lara in bad faith, though the prosecutor knew “with a high degree of certainty” that Vega-Lara would refuse to testify, because (1) the trial court had previously ordered Vega-Lara to testify, (2) the state believed Vega-Lara’s claim of privilege was specious, and (3) the state could, theoretically, have called Vega-Lara to facilitate the trial court’s holding him in contempt upon his expected refusal (“[w]e acknowledge,” says the Court gamely, “that the State gave no indication that it wanted the district court to hold Vega-Lara in contempt, nor did it make such a request”).
Under the “unfair prejudice” prong, the focus is on the substance and manner of the state’s examination, rather than on the decision to call the witness in the first place. Mitchell prescribes as the relevant inquiry whether the prosecutor’s questions were brief, fact-laden, and directed at the substance of the charged offenses. No, yes, and yes, says the Morales Court. “When pieced together, the State’s questions to Vega-Lara at trial provided the only detailed narrative of the crime that was consistent with the State’s theory of the case.” Absent the interrogation of Vega-Lara, the state’s evidence against Morales consisted of little more than that a mysterious man in a hat accompanied Vega-Lara and Solorzano-O’Brien to the brothel the evening that Mesa-Ortiz was killed.
Prior Inconsistent Statements & the Refusing Witness
Chief Justice Gildea is the sole dissenter. The majority’s unfairness finding, she suggests, is itself unfair. “[I]n the face of Vega-Lara’s refusal to testify,” she explains, “the State attempted to lay the foundation for the admission of Vega-Lara’s testimony from his own trial as prior inconsistent statements under Minn. R. Evid. 801(d)(1)(A).” In order for a statement to be excluded from the definition of hearsay under Rule 801(d)(1)(A), the declarant must testify at the trial or hearing and be “subject to cross-examination concerning the statement.” Until now, it has been an open question in Minnesota whether the “subject to cross-examination” criterion is met when a witness refuses to testify under a claim of privilege. Chief Justice Gildea does not reach this issue; she finds instead that Vega-Lara was subject to cross because he answered in the affirmative to one of the six questions put to him by Morales’s counsel, namely: “Did you testify that you had not intended to kill [Mesa-Ortiz]?” The Chief Justice concludes that Vega-Lara was “subject to cross-examination on the critical issue of intent.” The prosecutor’s effort to admit Vega-Lara’s statements was “allowable under the Minnesota Rules of Evidence and was made necessary by Vega-Lara’s invocation of a nonexistent privilege.” There was, she concludes, no unfair prejudice.
As concerns Chief Justice Gildea’s argument that the prosecutor’s examination was “allowable” the rules of evidence, the Court replies that, even if it was (see infra), the Mitchell standard is whether the state’s questioning was brief, fact-laden and directed at the substance of the charges, not whether the examination might have some other basis in the rules of evidence. Even efforts legitimately grounded in the rules can run afoul of Mitchell’s manner and substance strictures. Infra: In a later section of its opinion, the Court completes the kibosh on “allowable”. It holds that Vega-Lara’s statements were not admissible as substantive evidence under Rule 801(d)(1)(A). The prior inconsistent statement rule requires that a witness “be testable about the statement, meaning that he must be reasonably responsive to questions on the circumstances in which he made it.” The Court is not as impressed as the Chief Justice with Vega-Lara’s affirmative response to one out of six cross examination questions. On the whole, says the Court, Vega-Lara refused to answer the defense lawyer’s questions about his prior testimony, including whether Vega-Lara earlier lied about Morales’s role in order to shift blame away from himself. The Court holds that Vega-Lara was not “reasonably responsive” to questions that sought to probe the circumstances surrounding the prior statements. We now have an answer to the open question: a witness is not “subject to cross-examination” for purposes of the prior inconsistent statement rule when the witness refuses to testify under a claim of privilege.