Throughout the murder trial of former Patriots tight end Aaron Hernandez, Boston.com will offer insight into the proceedings from local legal experts in a series called “Law Schooled.’’
Earlier in the week, it was reported that Shayanna Jenkins had been granted immunity per the request of the prosecution in the trial of her fiancée, former Patriots tight end Aaron Hernandez. This means that Jenkins can testify against Hernandez without fear of incriminating herself in court, and she no longer has the right to plead the Fifth Amendment.
But what are the steps in immunizing a witness, and what kind of affect could this have in the Hernandez trial?
Immunity is a tricky tactic employed by legal teams, and any petitions for it must go through a certain process of approval before becoming reality.
Former state and federal prosecutor Gerry Leone, a current partner at Nixon Peabody in Boston, shed some light on the thoughts––and steps––that go into immunizing witnesses.
Right off the bat, it’s clear he thinks immunity is a mixed blessing, at best.
“I have a lot of experience with cases in which immunity is used, and it’s really something you don’t want to use unless you have to.’’
The former federal prosecutor went on to explain his feelings in greater details. “It’s never an easy decision, prosecutors never do it unless they feel they abosolutely have to. First, we don’t want to grant it when you don’t have to, when someone might have done something criminal.’’
But this desire seems to take a back seat to what is best for the overall Hernandez case. “If you have a case against multiple defendents, such as this homicide case, those who aren’t charged with the homicide might be granted immunity to make your case against the party responsible for the homicide stronger.’’
And there’s little to determine whether or not immunity will be necessary until it is. “You don’t necessarily know going in whether or not you’ll use it. Sometimes it’s done while you’re charging the case, sometimes it’s done after, it all depends on how it shakes out, and how you can prove your case beyond a reasonable doubt.’’
When it turned to the specifics of this case, Leone took time to look at the development in light of Jenkin’s perjury charge from December 2013.
“It’s a process, and Distric Attorneys can’t act unilaterally,’’ Leone said.
Leone notes that when an immunity petition is filed, it is presented to the other District Attorneys, as well as the Attorney General, for approval. “Sometimes you might be prosecuting a case, and wish to grant immunity to someone, but another District Attorney might be prosecuting that person, so it’s part of the process.’’
But beyond the procedural side of immunity, there’s always the question of how a jury will receive a witness testifying with immunity. “It can be a mixed blessing, and that’s why the decision to grant it is difficult. It creates a witness with perceived baggage. They had to be granted this in order to be made to testify.’’
The judge plays a part, as they instruct jurors as to how to receive immunized witnesses. Still, Leone is quick to note that “at the end of the day, you can just never know how the jury will receive a witness who had to be immunized.’’
Regardless of how the jury receives Jenkins and how long prosecutors wrestled with the decision to grant her immunity, Leone says neither Jenkins nor the prosecution can turn back now.
“Once she is immunized, there is no ability not to testify, she has to, she’ll be held in contempt until she does,’’ Leone said. “And if she goes on the stand and lies, well, that could be another criminal charge against her.’’