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Hopp & Flesch11/21/2005
dings of this or other jurisdictions, and in direct conflict with both the rationale of and specific advisement in Garrity itself.
In Garrity, the Supreme Court made clear that the appellant's statements were deprived of their voluntary character by a warning that if he exercised his privilege to refuse to answer, "he would be subject to removal from office." Garrity, 385 U.S. at 494; see also id. at 505 n.1 (Harlan, J., dissenting) ("The warning given to Chief Garrity is typical. . . . ' ou, as a police officer under the laws of our state, may be subjected to a proceeding to have you removed from office if you refuse . . . .'"). As in Garrity, the warning given Back-street informed her that if she refused to testify or answer questions, she would be subject to administrative charges and that those charges could result in her dismissal. Nowhere did Garrity, or any other pronouncement of the Court, suggest that an employee's free choice would not be impermissibly burdened by such a threat, merely because it fails to mandate discharge as an automatic consequence of refusing to speak.
We, along with a number of other jurisdictions, have previously held that an employee's subjective fear of being fired for failing to cooperate is not sufficient to support an objectively reasonable expectation of discharge. People v. Sapp, 934 P.2d 1367, 1373 (Colo. 1997); e.g., United States v. Friedrick, 842 F.2d 382, 396 (D.C. Cir. 1988). Rather, we held, " he state must have played a significant role in creating the impression that [the employee] might be discharged for asserting the privilege . . . ." Sapp, 934 P.2d at 1374 (emphasis added). We concluded merely that in order to be significant, the state's role in creating such beliefs must have been more coercive than the requirement that a witness testify truthfully. Id. Neither this court nor the Supreme Court, however, has ever suggested that the right to refuse is impermissibly burdened only by a promise of discharge, as distinguished from a mere threat of discharge, no matter how directly linked to a refusal to cooperate.
I therefore consider it clear that the sheriff's "Garrity advisement" in this case was not only designed for the express purpose of, but would actually have had the effect of, rendering any statements made by Back-street to the sheriff's investigator (and any evidence derived from them) involuntary and inadmissible in a subsequent criminal proceeding. While I can appreciate counsel's dilemma in advising a client about the risks and potential consequences of criminal prosecution despite such a warning, he is nevertheless not relieved of making a reasonable assessment of the law and assisting his client to choose among uncertain outcomes.
Even the majority is unwilling to say that Back-street's counsel properly advised her about the effect of the advisement. It apparently holds merely that in light of the uncertainties, and the corresponding seriousness of a felony conviction, counsel's advice to his client that her statements could still be used against her in a criminal proceeding could not amount to malpractice. While I do not suggest that advising non-cooperation was malpractice, it is clear to me that counsel's advice, and failure to clarify any uncertainties in favor of his client, were based on a misunderstanding of the law. The question whether this course of action amounted to a failure to employ the degree of knowledge, skill, and judgment ordinarily possessed by members of the legal profession was not properly resolved by the trial court because of its similar misunderstanding of the law. Because I do not believe the matter is resolvable, as a matter of law, on the record before us, I would remand for furth
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