Friday, May 10, 2013
Lady 2 Soothe provided the inspiration for this article with the following comment about Shellie Zimmeerman and her Fifth Amendment right to remain silent.
Does anyone know if this is true?
Legally, as GZ’s wife she could take the 5th.
However, if she takes that 5th she has to take the 5th for every single question they ask because if she even answers one question, just one, the protection of the 5th is gone. Which means, she would then have to answer every question she took the 5th on previously.
Here is my answer:
Pursuant to the Fifth Amendment, she can refuse to answer any question, if she believes that her answer might tend to incriminate her.
Since she is represented by counsel in a pending criminal case, her lawyer will probably be at her side to advise her whether to assert the 5th and refuse to answer.
She would not waive the 5th by answering just one question, or even several. She can assert it at any time, but if she were to assert it to avoid cross examination regarding a matter that she had testified about on direct examination, for example, the judge would remedy the situation upon request by striking her testimony and ordering the jury to disregard it.
Given the pending perjury charge and her potential criminal liability for aiding and abetting her husband to conceal the commission of the murder, we can reasonably expect her to refuse to answer any questions that delve into those matters. Therefore, I do not realistically see her being called to the stand. I will add parenthetically that it’s improper for a lawyer to call a witness to the stand to provoke the witness into taking the 5th in front of the jury. Where there is any reasonable likelihood that a witness will take the 5th, or should consult with a lawyer about taking the 5th before answering, a judge will not allow the examination to begin in the presence of the jury. Instead, she will excuse the jury and allow counsel to proceed with questions. If the witness asserts the 5th at some point, the judge will terminate the inquiry and prohibit the witness from testifying.
Shellie will no doubt appear with her lawyer who will likely advise Judge Nelson that he has advised Shellie to assert the 5th to all questions except her name and relationship to the defendant. Since she clearly has a valid reason to assert the 5th, I expect Judge Nelson will excuse her from testifying.
However, there is one legitimate way to prevent her from taking the 5th and Bernie de la Rionda has the power to do it. Since they both want something from each other, they can play let’s make a deal. For example, he could offer to dismiss the perjury charge, if she agrees to testify truthfully for the prosecution. The feds have written the playbook and all he needs to do is follow it. Here’s the way it works.
The agreement would have to be conditioned on her voluntarily submitting to an interview and polygraph test, if requested, to determine if she answered questions truthfully. He also would have to promise her use immunity for any information that she discloses in the interview and at trial, if he calls her to the stand. Use immunity means he could not use anything she said during the interview or the trial, so long as she tells the truth. Because of the use-immunity promise, Shellie would no longer be in danger of incriminating herself, if she cooperates and testifies. That means she could not assert the 5th and refuse to answer.
That still leaves the issue of the husband-wife privilege. Boar de Laze, Searching Mind and I have about beaten that issue to death without reaching agreement. BDL believes the defendant can prevent her from testifying against him by claiming the privilege. SM and I believe the privilege may not apply, if the testifying spouse (Shellie) is an uncharged coconspirator with her husband in a plot to conceal the commission of the murder and to evade prosecution by fleeing the jurisdiction.
It would make little sense for BDLR to play let’s make a deal with Shellie Zimmerman, if the defendant can prevent her from testifying against him. Therefore, he will not open the bidding unless he is certain that the privilege will not apply.
Finally, BDLR is an apex predator, not Santa Clause. He is not likely to seek Shellie’s cooperation or accept it, if offered, unless he believes that he needs it to convict the defendant. Allowing her to skate on a slam-dunk perjury charge without getting something that he needs in return is not going to happen. Keep in mind, however, that because they must prove their cases beyond a reasonable doubt, prosecutors fear they must prove their cases beyond all doubt to be on the safe side. Having Shellie as a backup insurance policy to help disprove self-defense beyond a reasonable doubt has to have some value even if she would be ab admitted perjurer.
I have give a lot of thought to this issue and as usual when I am in doubt, I come back to a fundamental rule, Keep It Simple, Stupid. The prosecution has the phone logs for the defendant’s calls as well as his text messages and emails. I’m pretty certain they contain devastating evidence. If that’s true, I would recommend not playing let’s make a deal with Shellie. Lying to the court while under oath at a bail hearing regarding a material matter is a serious matter. As a matter of principle, people who commit that crime should not be permitted to walk away without consequence because they frustrate and often defeat the truth finding process that is so essential to the due administration of justice and the legitimacy of our courts.