CINCINNATI (CN) — A Sixth Circuit panel touted the "bedrock privilege" of the constitutional right against self-incrimination in determining Tuesday that former Michigan government officials were not required to testify at the bellwether Flint water trial even though they participated in earlier depositions.
The trial, which began in February and ended in a hung jury in August, was brought by several children against two engineering firms alleged to have contributed to the Flint water crisis.
Former Michigan Governor Rick Snyder was accused by Veolia NA LLC and Lockwood, Newman, and Andrews of doing nothing to stop the crisis when problems with the city's water supply were first discovered, and he was subpoenaed by the engineering firms during the trial.
Snyder, a Republican, was also criminally charged for his role in the debacle, although felony charges were eventually dismissed by the Michigan Supreme Court because of a procedural error. A circuit court judge is now considering whether to allow misdemeanor charges to proceed, following arguments in October.
While he participated in discovery depositions for the civil trial, Snyder filed a motion to quash a subpoena to testify in court and invoked his Fifth Amendment right against self-incrimination.
A federal judge ruled Snyder waived that right when he was deposed, regardless of when any criminal charges were brought against him.
Snyder's interlocutory appeal to the Sixth Circuit in the bellwether civil trial was argued in July, after the case had already been submitted to the jury, and Tuesday's decision from a divided three-judge panel held his motion to quash should have been granted.
U.S. Circuit Judge Richard Griffin, an appointee of George W. Bush, conceded in his majority opinion the right against self-incrimination "is not unlimited" when a witness discloses information, but emphasized a court must determine the scope of a witness's waiver of the privilege, and that that waiver is relevant only to the proceeding in which it is made.
Griffin cited several decisions, including the 1983 Sixth Circuit case In re: Morganroth, as caselaw that dealt with the definition of the term "proceeding" as it relates to the Fifth Amendment, but admitted none were entirely on point with the issue facing the current panel.
"Morganroth did not address whether a deposition and a trial in the same case are separate proceedings," he wrote, "and it sidestepped the issue of whether a waiver in one proceeding carries over to another. ... But its conclusion that perjury constituted an independent basis for asserting a privilege is instructive."
Griffin ultimately concluded "cross-examination is the crucial factor in determining what qualifies as a Fifth Amendment proceeding" and that "Fifth Amendment privilege attaches only to the event where the witness testifies and is then subject to cross-examination, such as at a deposition or trial." (Emphasis in original.)
Consequently, he determined Snyder and the other officials should have been afforded the opportunity to assert their Fifth Amendment rights at trial, given that they testified and were cross-examined during their depositions.
Griffin gave credence to Snyder's fear that being forced to testify at trial about issues he already discussed in a deposition could result in perjury, intentional or otherwise.
"While appellants knew of the criminal investigations into their conduct and they still chose to waive their privilege at their depositions, they did not know if they would face new charges in the future, and, if so, what those charges would be," he said. (Emphasis in original.)
Griffin stressed the differences between a discovery deposition and trial in his conclusion, and noted a trial is "when issues are conclusively decided," while a deposition is used to "produce evidence for trial."
"The logic, justifications, and purpose underlying the Fifth Amendment support concluding that a single testimonial event is its own proceeding for purposes of a waiver," he said.
"Here, appellants were subject to ... cross-examination during their deposition. They may face further incrimination during trial by repetition of their testimony, the possibility of further disclosure, and the threat of perjury. The purposes of a deposition and trial serve different ends. And caselaw and treatises, though not uniform, largely support such a conclusion."
U.S. Circuit Judge Amul Thapar, a Trump appointee, concurred in the court's judgment but not with the entirety of Griffin's opinion, while U.S. Circuit Judge Karen Moore, a Clinton appointee, wrote a dissenting opinion and took issue with the majority's characterization of civil proceedings.
"Despite the lead opinion's empty protestations that the purposes of a deposition and civil trial are divergent," she said, "both serve to produce evidence relevant to the claims and defenses listed in the complaint and the answer with the aim to determine whether a party will be held liable.
"A deponent cannot reasonably be surprised when they are called to testify at trial about matters covered in their deposition, especially when the deponent was a party to the suit as four of the five appellants here had been. That possibility was present the moment the deponent was subpoenaed for the deposition."
Moore insisted the type of scenario envisioned by Griffin and Thapar would give the subject of the deposition an unfair advantage as to what questions would be asked at trial and allow them to sidestep potentially dangerous lines of questioning.
"The appellants knew the purpose for which they gave testimony when each was administered the oath at their depositions," she concluded. "They were counseled; Governor Snyder is himself a lawyer. The complaint was available. The possibility of civil liability for those who were parties was clear. ... And it was apparent that the appellants' deposition testimony would be used to develop the questions that the parties would ask them at the civil trials that followed."
Moore pointed out Snyder and the others could have avoided the entire "imbroglio" simply by asserting Fifth Amendment privilege at their depositions and wrote that "choices have consequences."
None of the parties involved immediately responded to requests for comment Tuesday afternoon.
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