A Primer on Garrity.

Modern Esquire has a post up about a case in Brown County. Read it here. In that case, charges against states employees were dismissed because the judge ruled that the Office of the Inspector General violated the constitutional rights of the employees. These constitutional rights are referred to as "Garrity Rights."

I know a more than a bit about the authority and practices of the Inspector General. I also know way too much about the politics and the coziness between that office and the Columbus media. But I will leave all of that to others.

Instead, I think I can be helpful by explaining what Garrity Rights are. Garrity is a Supreme Court case decided in 1967. You can read it here. The basic thrust of Garrity is that a state employee may be compelled to give statements under threat of discipline or discharge but those statements may not be used in the criminal prosecution of the individual. The Ohio Supreme Court has gone further. The Ohio Supreme Court has ruled that when a public employee is compelled threat of firing to make a statement in an administrative proceeding, the state may not even indirectly use the statement or present the statement to the Grand Jury.

In Garrity v. New Jersey, police officers were accused of fixing tickets. Before being questioned by internal affairs, each officer was reminded that he could assert his Fifth Amendment right to refuse to answer questions. However, the officers were warned that if they did so, they could be disciplined or fired. Faced with this choice, the officers agreed to answer questions.

The officers made incriminating statements that the prosecution then tried to use against them in a criminal case. The Supreme Court held that this was unconstitutional. The officers had been coerced, under threat of discipline or loss of a job, to waive their constitutional rights. This meant that the waiver was made under duress and the use of the statements was, thus, unconstitutional.

The broad reading of Garrity is that statements obtained from government employees in circumstances in which a state statute would have required the termination of their employment had they declined to answer were involuntary and therefore inadmissible against them in a criminal trial. This appears to be exactly what happened in Brown County. New Jersey had a law that, like Ohio, required public employees to cooperate with investigations. Then, like in New Jersey, the statements were taken to the Grand Jury and used to obtain indictments.

The Judge is Brown County is undoubtedly correct. The defendants are entitled to suppression of their statements because the test of coercion has been satisfied here, and any statements from the OIG and ODNR that the statements were made with full knowledge are irrelevant. The test of whether the employee statements to the Inspector General's Office were voluntary is based solely on the employees' beliefs that termination would follow a refusal to speak, so long as that belief was reasonable. In other words, the statements cannot be used by the prosecutor if a reasonable person in that position would have felt the same way.

This makes sense. The Fifth Amendment is a intended to protect citizens (including state employees) against government coercion. There is every reason to exclude a statement as obtained in violation of the Fifth Amendment if the speaker did felt compelled to make the statement. While it was possible that the employees spoke voluntarily rather than because their jobs were on the line, that seems unlikely. It was far more likely that they spoke to save their jobs.