notorial dissent wrote:I had forgotten just how clearly they had diagrammed out the whole scam in that initial litigation.
The thing I still have a problem with is how naive/dumb Spielbauer had to have been to have let himself get sucked into this whole morass. I'm still amazed that he actually still has a license after this, I'm certainly not sure I think he should be allowed to continue to practice law at this point.
If it tells you anything, Spielbauer has a link to Creature from Jekyll Island on his home page.
He also has his own legal woes.
http://www.kmtg.com/data/rc_legal_alert ... 1173135604
California Court of Appeal Holds That Public Agency May Not Terminate Employee for Refusing to Answer Self-Incriminating Questions Without First Granting The Employee Formal Immunity From Criminal Prosecution
March 07, 2007 | Bulletin No. 851571.1
In Spielbauer v. County of Santa Clara, (--- Cal.Rptr.3d ---, 2007 WL 80458, Cal.App. 6 Dist., Jan. 12, 2007), a California Court of Appeal considered whether a public entity could terminate an employee for insubordination for refusing to answer the employer's questions based on the employee's exercise of his constitutional right against self-incrimination.
The court held that the employee could not be terminated for insubordination for refusing to answer incriminating questions without first being granted immunity from criminal prosecution. The court also found, however, that the employee was not protected from termination for conduct unbecoming a county employee, where other evidence showed he made deceptive statements to a judge during a legal proceeding.
Plaintiff, Thomas Spielbauer, was an attorney employed as a public defender by the County of Santa Clara ("County"). In the course of representing a defendant in a criminal case, Spielbauer made misrepresentations to the court about the availability of a witness whose hearsay comments, taken without challenge, would be favorable to Spielbauer's client. In essence, Spielbauer told the judge in the case that the witness was avoiding service of process and was therefore unavailable to testify so that the hearsay testimony would become admissible. In fact, however, Spielbauer had seen and visited with the witness the day before the hearing, and knew that the witness, if subjected to cross-examination, would give testimony unfavorable to Spielbauer's client.
As a result of Spielbauer's conduct, the district attorney pressed misdemeanor criminal charges against Spielbauer, and County (through the public defenders' office) began an internal investigation into the matter. As part of the investigation, Spielbauer was questioned about his conversations with the witness and his representations to the court. Spielbauer refused to answer, invoking his privilege against self-incrimination in the criminal case. Spielbauer's supervisor repeatedly told him that his answers could not and would not be used against him in a criminal prosecution, and that he would be fired for insubordination if he did not answer; however, County at no time formally granted or offered Spielbauer immunity from prosecution for his statements. After he continued to refuse to answer, Spielbauer was dismissed on grounds of insubordination for his refusing to answer questions, and for conduct unbecoming a county employee by making deceptive statements to the court.
Spielbauer filed a protest, and after exhausting his administrative remedies brought an action in mandate in district court seeking to set aside his dismissal. The trial court rejected his argument that he had to receive a grant of immunity before he could be penalized for refusing to answer potentially incriminating questions, and held that County could legally terminate him for insubordination. It denied him any relief, and Spielbauer appealed.
The Fifth Amendment to the U.S. Constitution protects an individual from being compelled in a criminal case to testify as a witness against himself. The U.S. Supreme Court has held that this right not only protects an individual from being forced to incriminate himself in a criminal prosecution, but also protects an individual from being compelled to answer "official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings." This prohibition extends to demands for information by a public agency acting in its role as an employer, the Court of Appeal said.
However, the purpose of the Fifth Amendment is to protect against compelled self-incrimination only in a criminal case. It does not protect an individual from other adverse effects of self-incriminating testimony if the individual has first received a formal grant of immunity from criminal prosecution. Thus, an employee who is being interrogated can be compelled to answer, and can be punished for refusing to do so, if he or she has been granted immunity prior to being required to answer. In other words, once immunity is in place, a public employee's refusal to answer his or her employer's incriminating questions can legally be a ground to terminate for insubordination. Furthermore, if a grant of immunity from criminal prosecution is in place, and the employee answers questions in a way that reveals grounds for other adverse actions against the employee besides criminal prosecution, the employee will not be protected from those other adverse actions.
In this case, because Spielbauer had not received a grant of immunity prior to being told that he must make potentially self-incriminating statements or lose his job, the Court of Appeal said, County could not legally terminate him on grounds of insubordination. It therefore reversed the trial court's decision on that issue. However, the court found there was sufficient other evidence in the record to support County's decision to terminate Spielbauer on grounds that he had engaged in conduct unbecoming a county employee by making deceptive statements to the trial judge in the course of his employment as a public defender.
Because the trial court had not examined the latter ground for Spielbauer's dismissal, the Court of Appeal remanded the case for further proceedings on the "conduct becoming" charge.