Elementary: “Child Predator”

I’m back after a brief hiatus! A whole bunch of reader questions have accumulated in the mailbag, and I’m going to try to work through the backlog. Today’s comes from Bob, a British reader who asked about the American show Elementary, specifically the first season episode “Child Predator” (spoiler alert!).  If you haven’t seen Elementary, I recommend it.  I actually prefer it to Sherlock.

Anyway, on to Bob’s questions (again, spoilers):

[In the episode,] a multiple child-killer initially tricked the police into believing he was an unwilling accomplice of the “real” killer. Believing this to be the truth the DA offered immunity from prosecution in return for his help in catching the “real” killer. Holmes subsequently discovered that the roles were really the other way round – he was the real killer and the man he claimed to be the accomplice of was, in fact, the unwilling accomplice. The deal is specifically immunity from any crimes committed in concert with the other man.
The deal is implied to still hold and he openly admits his crimes to Holmes, apparently certain that he is safe from prosecution.
One of the crimes is later discovered to be a solo endeavor as the other man was in hospital when it was committed.  [At the] end of the episode the police are about to arrest him for that one crime.

I’m British and pretty much everything I know about American law comes from your blog or the sources that inspired it, so I have three questions.

1. Would the DA really offer such an all-encompassing deal.
2. When it’s discovered that he really is the prime instigator would the deal still hold.
3. Would the “solo” murder be covered by the deal  or not.

I. Immunity in Exchange for Cooperation

As I told Bob when he sent in the question (way back at the end of 2012, embarrassingly enough), I don’t have enough criminal law experience to say whether the deal was realistic.  My gut says yes.  In theory the “accomplice” had a good defense (duress, since he was originally kidnapped by the actual accomplice), he was a minor for most of the crimes, and the police and prosecution needed his help to put away the person they thought was the actual mastermind.  Granting immunity in order to allow one member of a conspiracy to roll over on another is a common tactic, and I could see it being used here.

II. Just How Strong are Immunity Deals Anyway?

It has been recognized for some time that plea bargains can be enforced against the government. Santobello v. New York, 404 U.S. 257 (1971).  But what about deals in which the defendant is offering something else, such as agreeing to testify as a witness against other participants in the crime?  It turns out that such agreements are not always enforceable.

The Second Circuit (which includes New York) has held that “the government may in its discretion make agreements in which it exchanges various levels of immunity from prosecution for the defendant’s cooperation” and that such agreements are subject to ordinary contract law principles.  U.S. v. Aleman, 286 F.3d 86, 89 (2d Cir. 2002).  These principles include construing any such deal strictly against the government (because, after all, the government wrote the deal). Id. at 90.

However, all the strict-construing in the world won’t save a defendant who fails to uphold their end of the bargain.  A common feature of immunity deals is that the defendant-witness has to agree to testify truthfully.  As the Aleman case held, “truthful” can include a sincere but incorrect belief, but it doesn’t include lying. Id.  On the other hand, while the government has the discretion to decide if a defendant has adequately cooperated, “the government’s discretion does not grant it power to turn its back on its promises to the defendant under the cooperation agreement or to ignore a defendant’s cooperation efforts simply because the defendant is supplying information that the government does not want to hear.”  Id. at 91.

Aleman was a federal case, however, and the case in Elementary was a state case.  So what do the New York courts say about this?  It turns out that there’s a fairly similar New York case, People v. Curdgel, in which the defendant was given a reduced sentence in exchange for testifying against his accomplices.  83 N.Y.2d 862 (1994).  After he testified, however, the defendant went on television and said that he had lied to the grand jury.  The prosecution refused to honor the plea agreement, and the highest court in New York upheld that refusal.  The court held that the “defendant failed to uphold his end of the plea agreement and rendered the agreement valueless to the People…We cannot say that essential fairness compels enforcement of the original agreement.”  Id. at 864.

So the answer will almost certainly depend on how exactly the immunity deal was written.  If it included a requirement that the defendant testify truthfully, or if the deal itself included a statement of facts that the defendant swore to, then the prosecution would not be bound by the deal because the defendant breached it by lying.  But if the deal was sloppily written and simply gave the defendant immunity in exchange for agreeing to testify (regardless of the content of his testimony), then the government may not have much of a leg to stand on.

III. The Scope of Immunity

Whether or not the “solo” murder would be covered by the deal depends again on how exactly it was written.  The language we get from the episode is “in concert with.”  We know that the real accomplice was in the hospital recovering from a major surgery at the time of the solo crime, so he certainly wasn’t actively involved in the commission of the crime.  However, the defendant likely used the accomplice’s vehicle and other, indirect, forms of assistance.  It could be argued that the deal should be strictly construed against the government to include not just conspiracy but also accessory or accomplice conduct.

That all assumes that the deal holds at all, however.  As discussed above, it’s very likely that the deal would fall apart completely once it came out that the defendant was lying about his role in the murders.