Advertisement

Witnesses' immunity may limit jury options

 
Published Aug. 23, 1991|Updated Oct. 13, 2005

One by one, they walked into the grand jury room and swore to tell the truth. Of the 17 people who this week appeared before a grand jury investigating the sale of a city building, many, if not all, received a legal order to be there.

In complying with that order, those witnesses got something else: limited immunity from prosecution. Among those who received limited immunity is City Manager Robert Obering, whose attorney said he is a target in the probe.

While that doesn't ensure that Obering can't be charged with a crime, it reduces the probability, said Anthony Battaglia, his attorney.

"We're pleased with that because everything Mr. Obering said before the grand jury can't be used against him," Battaglia said. "However, I don't see any reason why he should be charged with a crime to begin with."

Also receiving limited immunity was Alan Harvey, the former city manager who, along with Obering, is accused by local businessmen of having lost $1.5-million for the city by accepting a low offer for the purchase of a city building, the so-called Fotomat building at 205 M. L. King (Ninth) St. N.

Harvey also is a target of the grand jury's investigation, said his attorney, Charles Ehrlich.

Eleven months ago, the City Council asked the Pinellas-Pasco State Attorney's Office to investigate allegations that in 1982 Obering, then assistant city manager, turned down purchase offers of up to $4-million for the building. A grand jury has been investigating, and on Wednesday heard from six current and former city employees including Obering and Harvey.

Grand jurors have several options. They can charge people with crimes; issue a presentment, which often takes the form of a critical report; they can expand an investigation or they can do nothing, said Robert Paver, a St. Petersburg lawyer.

"Grand juries can be used to indict people or can be used to dispose of politically sensitive cases without indictment," said Paver, who also is past president of the Criminal Defense Lawyers Association of Pinellas County.

So, if Obering, Harvey and possibly others have received at least some form of immunity from prosecution, does that mean that a more likely outcome of the investigation is a presentment?

"The answer is no, it doesn't necessarily indicate that this grand jury is only going to issue a presentment," said Lee Atkinson, an assistant state attorney in Hillsborough County. "You can't jump to that conclusion with any degree of reliability."

Atkinson, who has extensive experience with grand juries but only passing knowledge of the St. Petersburg investigation, said targets of grand jury investigations can be charged with a crime even if they have what is called "use immunity."

Use immunity prohibits witnesses' compelled testimony from being used against them. However, if a grand jury independently finds evidence of a crime, those witnesses can be charged with crimes, Atkinson said.

It's like the immunity granted to retired Marine Lt. Col. Oliver North in his nationally televised testimony before Congress on the Iran-Contra affair, Atkinson said. During the hearings, North described how the Reagan administration secretly sold arms to Iran in 1985-86 and then used the profits to aid the Nicaraguan Contras.

The job of independent counsel Lawrence Walsh was to prove wrongdoing on the part of North by using evidence obtained outside North's testimony under immunity.

North was convicted of three felony charges: two charges that he attempted to hide key facets of the Iran-Contra operation and one that he accepted an illegal gift in return for use of his powers as a government official. However, a federal appeals court recently ordered a hearing into whether his congressional testimony influenced his criminal trial.

Atkinson said that to avoid such a complication, grand jurors could issue sealed charges before hearing from the targets of their investigation. Or grand jurors could seal a record of the damning evidence before hearing from the targets of their investigation. The object, Atkinson said, is to keep evidence that could be used in criminal charges separate from testimony given under immunity.

Also, even a witness who has limited immunity can be charged with perjury _ lying under oath _ if that witness' sworn statements are proven false, Atkinson said.

Battaglia acknowledges that perjury charges are a possibility even with immunity; however, he maintains Obering has done nothing wrong.

And since grand jury proceedings are secret _ the public is not allowed to hear testimony, and participants aren't allowed to talk about it _ it is difficult to predict the outcome, Battaglia said.

Paver, the St. Petersburg lawyer, agrees that it's difficult to predict what the grand jury will do in this case.

"I'm on the edge of my seat waiting to see what they'll do," said Paver, who previously has represented Manny Rasco, another key player in the investigation. Rasco is one of the business people who claims his offer to purchase the city building was flatly refused by city officials.

The grand jury meets again Sept. 5, and perhaps then the public will learn what has been going on behind closed doors.

"I assume the purpose that they're coming back in September is to wind up their affairs," Battaglia said. "I'm hoping for the best, obviously."