Where Risk of Self-Incrimination Is "Obvious" Witness May Assert Privilege Vicariously Through Counsel

Martin v. State, Minn.S.Ct., 6/17/2015.  Mr. Martin is serving a life sentence with no possibility of parole.  He committed the crime as a juvenile, was automatically certified to adult court, and was automatically sentenced to life without possibility of release upon conviction. A couple of years ago, after his conviction and sentence were affirmed on direct appeal, Mr. Martin filed a post conviction petition in which he alleged that because of recantations by two state witnesses he was entitled to a new trial.  The post conviction court summarily denied that petition, but the supreme court sent the case back to the post conviction court for an evidentiary hearing on the recantation claim.

In the meantime, Mr. Martin filed a second post conviction petition in which he claimed that the holding of Miller v. Alabama, ___ U.S. ___, 132 S.Ct. 2455 (2012) should be applied retroactively. The post conviction court held a hearing on both petitions.  The recantation claim didn't go so well.  The state presented evidence that Mr. Martin had procured the two witness recantations by means of coercion and threats to the witnesses and their family members.  

One of the witnesses appeared only through counsel, who asserted his client's Fifth Amendment privilege and moved to quash the subpoena directed to his client.  The post conviction court granted that motion to quash the subpoena.  On appeal, Mr. Martin complained that the witness first needed to be sworn before the privilege could be asserted.  Justice Dietzen, writing for the full court on this issue, said, no, that because risk of self incrimination was obvious - the witness either lied during his trial testimony or in his sworn affidavit - assertion of the privilege did not require the witnesses' presence.

Alternatively, Mr. Martin argued that the post conviction court should have granted this witness judicial immunity.  The immunity statute, however, Minn.Stat. 609.09, subd 1, is only triggered when the state requests that the court grant immunity to a witness. Because the state didn't make that request, the post conviction court had no authority to grant it.  See State v. Pierce, 364 N.W.2d 801 (Minn. 1985).

On the juvenile life without possibility of release, six justices continue to believe that Miller is not retroactive.  Justices Anderson and Lillehaug agree, but acknowledge that other courts have ruled on the question the other way and just wish that the U.S. Supreme Court would resolve it.  Justice Page dissented, for the reason that he dissented in Chambers  and Roman Nose, that Miller  should be applied retroactively.