There are certain imbalances in the trial of a criminal case. Some favor the defense – most obviously, that the prosecution must prove guilt beyond a reasonable doubt, not merely by a preponderance of the evidence. Some favor the prosecution – such as the ability to force witnesses to testify by grant of immunity, an ability the defense does not have.

Essentially, the prosecution may require testimony from any available witness if the testimony is relevant and admissible and not protected by constitutional or evidentiary privilege. If a witness refuses to testify on fifth amendment grounds, the prosecution has the option of granting the witness immunity and thus eliminating, at least theoretically, her fear of self-incrimination and consequently her right not to testify. Prosecutors routinely in white-collar and other cases rely at trial on immunized testimony of accomplices, co-conspirators and others involved in the alleged criminal activity at issue.

The defense, on the other hand, is hampered by its inability to secure the testimony of such witnesses, who, fearful of prosecutorial use of their trial testimony against them in a later proceeding and/or retaliation for their testimony for the defendant, often assert their fifth amendment privilege against self-incrimination to avoid testifying. Although the defense may request that the prosecution, or the court, grant immunity to a defense witness, such requests are almost invariably denied. Prosecutors, generally not interested in helping the defendant, never or virtually never grant such requests, even if there is virtually no possibility that the witness will ever be prosecuted, commonly claiming that the witness might be immunized for other, unknown crimes. Judges routinely refuse to grant immunity out of fear of giving a potential wrongdoer immunity, deference to the prosecutor’s decision, or separation of powers concerns.

In re Nagle  (3d Circuit, 10-3974, August 17, 2011), 2011 WL 3610120, a non-precedential opinion, involved such a situation. The underlying indictment charged Nagle and his uncle and business co-owner Fink with defrauding the United States by setting up a phony Disadvantaged Business Enterprise (DBE) to act as a subcontractor so that the business was eligible to, and did, receive government projects. Nagle claimed Fink had excluded him from the day-to-day operations of the business and that he was unaware of any fraud. After Fink pleaded guilty to conspiracy, Nagle subpoenaed him and Fink replied that he would invoke his fifth amendment right and decline to testify.

The defendant requested that the government grant the witness immunity. Not surprisingly, the government refused, contending it did not know what the witness would say and that it feared giving him an "immunity bath." Then, the district court, upon application of the defendant, itself granted Fink immunity.

The case reached the Third Circuit on the government’s interlocutory appeal and writs of mandamus and prohibition challenging the district court’s immunity grant to Fink. The Court of Appeals denied both the appeal and the writs on procedural grounds. While the court did not rule on the merits of the district court’s decision by holding it was not challengeable by either appeal or writ, it did say that the district court "neither committed clear legal error nor clearly abused its discretion," thereby putting its finger, but not its thumb, on the scale favoring the grant of immunity here.

Thirty-seven years ago, a federal judge, denying a motion I made for defense witness immunity, called it "the stupidest motion I ever heard." According to the knowledgeable Ardmore, PA attorney Peter Goldberger, who co-wrote the NACDL amicus appellate brief supporting Nagle, this case is the first Circuit Court decision upholding a grant of immunity. The law sometimes moves slowly.

To be sure, the court’s non-precedential decision is not a strong or unqualified approval of judicial grants of defense witness immunity. The court said only that the grant here was neither a clear error of law nor a clear abuse of discretion. Additionally, the district court’s order was made after the witness Fink had pleaded guilty (but apparently before he was sentenced) and thus the immunity grant did not absolve him of criminal liability, at least for the conduct to which he admitted guilt. Most requests for grants of defense witness immunity are for testimony of persons who have not been charged, let alone convicted. In those instances, the prosecutorial objection that immunity might let a criminal go free has more substance.

Defense lawyers should nonetheless celebrate — albeit with beer, not champagne. The decision should give some support to district judges (at least in the Third Circuit) who are hesitant to grant defense immunity because of questions of judicial power or fear of reversal. And, it should suggest to prosecutors that they may no longer be able to continue to deprive defendants of essential testimony solely based on the boilerplate, unspecific argument that it might give the witness an "immunity bath" for unknown crimes.

Nagle Mandamus Petition –Download Nagle mandamus petition

Brief of Appelle/Respondent Joseph W. Nagle – Download 3BrNagle e032111

Rply Brief of Appellant/Petition – Download 3USReply e040611

NACDL-PACDL Amicus – Download 3MemAmi NACDL-PACDL e112410

(Goldman)