ATLANTA - A witness to the double homicide for which Ray Lewis is charged has invoked his Fifth Amendment right not to testify in the case - setting up a potentially precedent-setting legal fight.
An attorney for one of Lewis' two co-defendants said he intends to force the man to talk through use of a novel maneuver: He wants the judge to override the prosecutors and grant the man immunity from prosecution.
Typically, prosecutors decide whom they will and won't bring to trial, and use promises of immunity to obtain testimony they desire. But if the judge does it on behalf of a defendant, the witness would be stripped of a Fifth Amendment claim of self-incrimination and would have to take the stand and answer questions.
"It probably would be precedent-setting," said Dwight Thomas, a lawyer for the witness, Carlos Stafford. "It's a very uncertain area of the law."
Stafford, a Houston law student, was among those riding in Lewis' stretch limousine on Jan. 31 when two men were stabbed to death during an alleged early-morning brawl involving Lewis and members of his party.
Lewis, 25, has been charged with assault and murder in the incident, along with two men he was with that morning, Reginald Oakley, 31, of Baltimore, and Joseph Sweeting, 34, of Miami. All three have pleaded not guilty.
Dead are Jacinth Baker, 21, and Richard Lollar, 24, of Decatur, Ga.
Prosecutors and lawyers for Lewis and his two co-defendants have all sought to interview Stafford about what he saw - and did -during the melee, which occurred in an upscale nightclub district after the Super Bowl was played here. So far the man has declined to talk to anyone, and will remain silent unless he is granted immunity, said Thomas.
Thomas, of Atlanta, confirmed that in a letter that was entered this week into the docket in the Lewis case. Prosecutors have asked a Texas court to issue a subpoena to Stafford, and lawyers for Lewis and a co-defendant have indicated they will also call him to the witness stand.
Fulton County District Attorney Paul Howard has so far declined to extend immunity to Stafford. Immunity has been granted to two of the women limo passengers, who presumably did not participate in the alleged fight. The driver, too, of the rented vehicle has been given written assurances that he is not going to be prosecuted.
Bruce Harvey, the attorney for Oakley, says the testimony of Stafford and another limo passenger, Kwame King, could help clear his client. In fact, Oakley would be deprived of his right to a fair trial and due process of the law without the men's testimony, Harvey argued in a motion filed last month.
He has not divulged what he thinks the men would say, but calls them "witnesses/participants," in the motion. Prosecutors opposed the motion, saying immunity is a matter best left to the district attorney.
Fulton County Superior Court Judge Alice D. Bonner, who is overseeing the trial, rejected the motion on May 3 after a closed-door hearing with Harvey. But, in her written order, Bonner said she would reconsider at trial if the two witnesses appeared and invoked the Fifth. At that point, she would decide if Oakley's right to the testimony outweighs the prosecutor's discretion, she wrote.
Yesterday, Harvey said he intends to pursue the matter with both King and Stafford and believes he could score a legal first. He said he has found case law, including a Federal court decision from the U.S. Virgin Islands, that suggests a judge has the authority in some circumstances to immunize witnesses against the wishes of prosecutors.
Barbara Mello, who teaches criminal law procedure and constitutional law at the University of Baltimore, agreed that it likely would be a first.
"It's a very clever ploy. I have not even heard of it being done before," Mello said.
Because they would be guaranteed that their testimony could not be used to prosecute them, Stafford and King would lose their right to invoke the Fifth Amendment and would have to answer questions, even if that meant admitting to committing a crime, Mello said. The U.S. Constitution's Fifth Amendment says citizens cannot be forced to testify against themselves if it puts them at risk of prosecution.
If Harvey prevails, it would put the District Attorney's office in a bind. If prosecutors sought to charge the men later, they would be barred from using as evidence anything the men said on the stand in the Lewis trial and would have to prove they got the information independently, she said.
That situation has arisen in several high-profile cases. Former Pentagon aide Linda Tripp, who was given immunity by special counsel Kenneth Starr in his investigation of President Clinton's affair with Monica Lewinsky, is using it to avoid prosecution under Maryland's laws against surreptitious taping of phone conversations. Former Reagan and Bush aide Oliver North also used immunity granted him in a Congressional investigation to thwart criminal prosecution.
Thomas declined to say what Stafford saw on Jan. 31, but did say "Carlos did not commit any crime out there.""He would be truthful in his testimony. I don't know how the jury will view it and weigh it. It might be good for some and bad for others. I don't know," Thomas said.
One witness has come forward to say he pulled a man off one of the victims during the fight. The man, who the witness said was not Lewis, was wearing a fur coat. Also, a hair from a mink coat was found in the hands of one of the dead men, according to sources.
Lewis and Stafford are believed to have been wearing fur coats that morning, along with several other men, sources have said.
Meanwhile, jury selection in the Lewis case continued yesterday with 17 more potential jurors being questioned one by one about their knowledge and opinions of the case. The judge excused two of them, who both said they thought the men were probably guilty and doubted being fair arbiters.
Over the first two days, 30 prospective jurors have been questioned and 27 remain available to serve. The judge said yesterday she would consider scaling back the number of alternates needed, to four from her original plan of six. If that happens, attorneys said they could probably complete jury selection tomorrow, and be ready for testimony to begin on Monday or Tuesday.