Hennepin County District Court File No. 27-CR-11-40604
Lori Swanson, Attorney General, St. Paul, Minnesota; and
Sara R. Grewing, St. Paul City Attorney, Stephen J. Christie, Assistant City Attorney, St. Paul, Minnesota (for respondent)
Mpatanishi Syanaloli Tayari-Garrett, Dallas, Texas (attorney pro se)
Considered and decided by Kirk, Presiding Judge; Smith, Judge; and Harten, Judge. [*]
A pro se party who repeatedly testifies while not under oath during her opening statement, closing argument, and examination of witnesses, waives her Fifth Amendment protection. In such a case, the prosecutor does not violate appellant's right to remain silent by reminding the jury that the pro se party's unsworn testimony is not evidence.
Appellant Mpatanishi Syanaloli Tayari-Garrett, an attorney, proceeded pro se during her jury trial on a charge of criminal contempt for failing to appear for trial. Although appellant invoked her Fifth Amendment privilege against self-incrimination, she effectively waived this privilege when she persistently testified while not under oath during her opening statement, closing argument, and examination of witnesses. Because of her waiver, we conclude that the prosecutor did not violate appellant's privilege when he told the jury that her unsworn testimony was not evidence to be considered during deliberations. Appellant also raises several other arguments that do not have merit. We affirm.
In October 2010, appellant was hired to represent E.M.M., who was charged with theft by swindle in a $2.8 million mortgage fraud scheme. Appellant is an experienced criminal defense attorney who practices in both Texas and Minnesota. The case involved multiple defendants and was one of the largest cases that the complex crime division of the Hennepin County Attorney's Office brought to trial in 2011. The district court set aside two weeks for the trial.
On January 25, 2011, after a pretrial scheduling conference, the district court issued a scheduling order that stated, "[B]ased upon discussions with counsel at that hearing, . . . [t]he trial remains set for May 2, 2011, and will be given trial priority unless the Court is assigned and required to hear any other criminal matter with a speedy trial demand." Appellant did not raise any scheduling conflicts at this conference and agreed to a trial date of May 2. Two subsequent orders filed in February and March reiterated a trial start date of May 2.
Less than three weeks before the trial date, appellant filed a motion for a continuance based on several grounds, including a personal conflict due to a family wedding in Europe. Before the district court had a chance to hear appellant's motion, she purchased non-refundable airline tickets from Dallas, Texas to Paris, France for May 4 through 9.
In an April 22 order, the district court denied appellant's motion, stating: "The trial day certain for this case is May 2, 2011." Appellant next filed a motion to remove the district court judge from the case, but the chief judge denied her motion. On April 29, appellant renewed her motion for a continuance and e-mailed the district court judge's law clerk, stating that she was "incompetent counsel" because she had not had adequate time for discovery or to prepare for trial.
On May 2, all parties, including E.M.M. and the 15 subpoenaed witnesses, were present to begin trial, but appellant was absent. Attorney Larry Frost appeared on appellant's behalf as substitute counsel and informed the court that he had spoken to appellant on May 1 and she informed him that she was hospitalized in Dallas. Frost stated that he had no knowledge of appellant's medical issue or prognosis, and requested a continuance of the trial on appellant's behalf due to her illness. The district court ordered appellant to submit to the district court three pieces of evidence by the end of the day: (1) documentation of admission to the hospital; (2) a prognosis from her doctor as to when she would be able to travel to Minneapolis; and (3) documentation of her travel plans to travel to Minneapolis to appear before the district court on May 2. Thomas Sinas, the prosecutor for the state, moved the district court to order appellant to show cause why she should not be held in contempt of court, but the district court declined to rule on the motion until more information was presented on appellant's medical condition. The district court stated that the trial would be continued on a day-to-day basis until it could be tried.
On May 3, the district court held a follow-up hearing. Appellant was absent. Frost informed the district court that he had spoken with appellant and she said she was staying overnight at the hospital for additional tests, but once she received a formal prognosis she would forward that information to the district court. Frost said appellant told him that she could not provide any evidence to the district court of her travel plans for the May 2 trial date because she had intended to drive to Minneapolis. The district court continued the hearing until May 5 for another status conference to learn more about appellant's prognosis. Later that afternoon, appellant sent the district court judge's law clerk an e-mail stating that she had been released from the hospital, but would not be able to attend the May 5 hearing as it was "[t]oo soon." Appellant stated that she would be available to attend a status conference regarding the trial on May 16.
About 45 minutes later, the law clerk e-mailed both appellant and Sinas an order stating that the district court had stayed a motion for an order to show cause pending appellant's production of the required documentation of her hospitalization, prognosis, and travel plans. Absent appellant producing this information, the district court believed the state had shown good cause for its request. The district court gave appellant until noon on May 4 to provide the three pieces of documentation and reiterated that the trial remained set on a day-to-day basis. The e-mail order also informed appellant of the May 5 hearing.
During the morning of May 4, appellant e-mailed the law clerk in response to the May 3 e-mail order. Appellant again suggested continuing the trial until May 16 because she was waiting for the doctor to confirm the date of her follow-up appointment. Appellant wrote, "Given the clarification the court is handling this matter day-by-day, I may be able to begin making travel plans after my follow-up appointment next week." Appellant stated that she was presently in Dallas, but could appear by telephone for the May 5 hearing. Appellant attached a heavily redacted document from a hospital in Dallas to her e-mail indicating that she had been hospitalized overnight May 2 to 3.
On the morning of May 5, the district court held another status hearing where the law clerk contacted appellant by calling the phone number for her receptionist at her law office in Dallas. The receptionist connected the law clerk's phone call to appellant. Appellant never mentioned to the district court that she was in Paris.
At the hearing, the district court expressed its frustration about appellant's failure to provide the documentation required in the May 3 order, and indicated that it was considering all remedies, including removing her from the case. Appellant stated that she had not provided the district court evidence of her prognosis because she was still waiting to receive it from the doctor, but she was "ready to go" and felt "a hundred times" better. The state again moved the district court to find appellant in constructive criminal contempt of court because she did not appear for trial on May 2. The district court stated that it would hold an evidentiary hearing on the state's contempt motion on May 9 due to appellant's failure to provide the required documentation. Appellant stated that she could not appear in Minneapolis on May 9 because she had a follow-up medical appointment. The district court ordered her to appear by phone for the May 9 evidentiary hearing, and appellant agreed.
Later that day, the district court amended its oral order allowing appellant to appear by phone on May 9 after learning that an individual charged with constructive contempt "must be investigated by examining the person and the witnesses for or against the person charged." See Minn. Stat. § 588.09 (2012). To conduct a proper examination of appellant, the district court ordered her to appear in person at the May 9 hearing. The law clerk e-mailed the amended order to appellant on May 5 using the same e-mail address that she had used for all previous correspondence.
On May 9, the district court held appellant's contempt hearing, but appellant was not present and did not appear by phone. Rick Petry, a criminal defense attorney who had been retained to represent appellant, appeared by phone. Petry stated that he could substitute as defense counsel for E.M.M. The district court reiterated that appellant had failed to produce the required documentation and continued the hearing until May 11. Appellant again failed to appear for the May ...