4.11.2008

TS - Gundersen's wife gets immunity

Gundersen's wife gets immunity

Thadeus Greenson/The Times-Standard
Article Launched: 04/11/2008 01:27:21 AM PDT

Statements made by Blue Lake Police Chief David Gundersen's wife during the District Attorney's Office investigation into allegations against her husband won't be used against her.

A court order filed April 7 states that the District Attorney's Office entered into an agreement of “use immunity” with Gundersen's wife, who the police chief stands accused of raping.

”It is hereby agreed by and between the Humboldt County District Attorney's Office and (Jane Doe), that statements made by (Jane Doe) to the Humboldt County District Attorney's Office as part of their investigation into the above case, and any information directly or indirectly derived from those statements shall not be used against her in any criminal case,” the order states.

It is the policy of the Times-Standard not to name victims in sexual assault cases.

Gundersen was arrested Feb. 8 and has since pleaded not guilty to 19 counts, including allegations of spousal rape, kidnapping a second victim for the purpose of committing forcible rape, possessing a submachine gun, possessing a pistol with a silencer and violating a court order.

He's being held in the Humboldt County Correctional Facility on $1.25 million bail.

The Blue Lake City Council voted in closed session Tuesday to terminate Gundersen's contract as police chief effective May 5.

The granting of use immunity to Gundersen's wife is the latest twist in a case that's seen several seemingly unusual turns.

Gundersen's wife initially made her allegations to Sheriff's and District Attorney's Office personnel Feb. 8, accusing her husband of repeatedly raping her over the course of a year while she was incapacitated. Later that same day, according to a District Attorney's Office Investigation Report, she called a Sheriff's Office detective and said the sex with Gundersen was consensual.

Shortly after the charges against Gundersen were announced, his attorney Russell Clanton called the investigation a “witch hunt,” and said Gundersen's wife wanted her husband released from jail, wasn't a victim and was prepared to testify on her husband's behalf.

At Gundersen's arraignment, District Attorney Paul Gallegos asked the judge to order Gundersen's wife to return for the preliminary hearing -- which has since been continued to today -- and later labeled her as a hostile witness.

This week, Gallegos said the immunity agreement doesn't necessarily change that label.

”What she told us was provided to the defense, and one would think she's going to be a cooperative witness, but you never know until you get to trial,” Gallegos said. “We never know until we actually hear the testimony of a witness. In a case like this, it's difficult, and it's evolutionary sometimes.”

Gallegos also said the use-immunity agreement only applies to the statements Gundersen's wife made during the investigation, and she maintains the option of invoking her Fifth Amendment rights on the stand. If she does so, Gallegos said it would be reasonable to assume his office would essentially attempt to enter into another use-immunity agreement with her that would cover her court testimony.

If Gundersen's wife is indeed still a hostile witness, and another immunity agreement is reached, that may make things more difficult for the defense, according to University of California Hastings College of Law professor David Levine.

”You could still end up being a hostile witness,” Levine said, adding that with another use immunity agreement, Gundersen's wife would give up her Fifth Amendment right. “Your choice at that point is to go ahead and testify or face contempt of court.”

There are two types of immunity recognized in California: Use and transactional. Transactional immunity is the highest form, and protects a witness from any prosecution for the offense involved, whereas use immunity simply means the witness' testimony won't be used against them.

”Use immunity does not mean we can't prosecute someone, it just means we don't prosecute them on what they told us,” Gallegos said.

Speaking in general terms and not about the Gundersen case, Gallegos said offering use immunity is a frequent practice with reluctant witnesses, and is often followed by polygraph tests.

”Essentially, we are seeking the truth and we want people to feel free to come in and talk to us,” Gallegos said.
The real question, Levine said, is why Gundersen's wife would feel the need for immunity.

An investigation report in Gundersen's case file mentions that “dozens of prescription pill bottles, some of which were issued to people other than Gundersen or 'Confidential Victim 1,' and some inscribed with Blue Lake Police Department case numbers” were seized from Gundersen's residence.

Levine said it's possible Gundersen's wife wanted immunity because of that or small indiscretions turned up during the investigation into her husband.

”(A lawyer) might be concerned that there could be some prosecution -- maybe failing a state law of integrity of evidence,” Levine said. “It just feels like something (a prosecutor) could give up pretty easily. Whatever concerns the lawyer for the wife might have, you could assuage them pretty easily with an offer of use immunity.”

Gundersen's wife's attorney, Patrik Griego, and Clanton were not immediately available for comment Thursday.

It's also possible, Levine said, there is something larger lurking under the surface that can't be pinned to Gundersen without the help of a witness somehow involved.

”Given that you are going to run up against a Fifth Amendment, this is their way around it,” Levine said. “At some point you get to the point where to crack into a group, you have to give something to somebody. So what do you do -- you give use immunity or you work with a plea bargain.”

But, with what is presently known about the case, Levine said the offer of immunity by the DA was likely just about easing the fears of Gundersen's wife.

”It seems to me it's more likely, with what little we know, that it's a small concession, not a big concession,” he said.

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