Unfounded Claims of State Interference With Petitioner's Post Conviction Witnesses Defeat Claims

McKenzie v. State, Minn.S.Ct., 12/23/2015.  Mr. McKenzie, who is serving a life sentence for a murder, filed this post conviction petition which alleged that a witness, Wendell Martin Sr., had recanted his trial testimony.  Martin, Sr. had testified at Mr. McKenzie's trial that McKenzie had confessed to the killing while the two of them shared a jail cell.

Mr. McKenzie produced affidavits from LaMonte Martin and Heidi Mastin, each of which said that Martin, Sr. had told them that he had lied at McKenzie's trial.  In between the pleadings and the evidentiary hearing, Mastin pled guilty to some other offense under an agreement that purported to forbid her from testifying at Mr. McKenzie's post conviction hearing.  As a result, Mastin withdrew her affidavit.  Thereafter, but before the evidentiary hearing, the post conviction court said that the provision of the plea agreement forbidding Mastin from testifying was not enforceable. Even so, Mastin did not re-submit her affidavit.  Instead, she asserted a Fifth Amendment privilege and chose not to testify.  Voiding the provision of Mastin's plea agreement took McKenzie's interference claim off the board because it was based entirely on the provision of Mastin's plea agreement that forbid her from testifying.

Martin, Sr. also asserted a Fifth Amendment privilege.  This occurred after the assistant county attorney had a little chat with him, during which Martin Sr. said that his trial testimony had been the "absolute truth."  The assistant county attorney then informed the court that he would pursue criminal charges against Martin, Sr. if he testified.  

Mr. McKenzie cried foul, saying that the prosecutor had interfered with his witnesses' decision whether to testify.  Chief Justice Gildea only considered the claim for Martin, Sr.  Mr. McKenzie said that this interference took two forms:  the prosecutor's interview with Martin, Sr., after the court had appointed counsel to represent him, and the threat to prosecute him if he testified.  The chief justice rejects both of these claims. On the first one, the trial court had found that Martin, Sr. was not represented by counsel at the time of the interview with the prosecutor and so there was no interference.  As to the second form, Martin, Sr. undercut if not eliminated any claim by having said to the post conviction court that he wasn't worried about the state prosecuting him and that any fear of prosecution was not why he was declining to testify.

Next, Mr. McKenzie said that the post conviction court should have granted his witnesses use immunity because the state had substantially interfered with the decisions of his witnesses to testify.  Now, having just said that there was no substantial interference with the decisions of these witnesses not to testify that should have been the end of it.  Nonetheless, the chief goes on to question whether the use immunity statute even applies in a post conviction proceeding.  Assuming that it does, the court points out that the statute requires that the prosecutor request use immunity, which didn't happen here.  Continuing to plow ahead, the court completes its advisory opinion by saying that if there were to be such power to grant use immunity in a post conviction proceeding where the prosecutor hasn't asked for it it could only be in the face of "egregious prosecutorial misbehavior," which, again, didn't happen.