Lawyers in the John Hirko Jr. trial revealed Tuesday that they've tried to obtain immunity from criminal prosecution for a Bethlehem police informant, hoping to force the reluctant witness to testify.
But John Neison IV refused to testify Tuesday, invoking his right against self-incrimination, despite the lawyers' claims that he wouldn't be charged criminally.
When a judge asked him if he believed that by testifying he would incriminate himself, Neison replied, ''To my knowledge, absolutely.''
Neison, who was a Moravian College student when he cooperated with police, took the witness stand at the end of a nearly two-hour hearing. The jury was not in the courtroom.
U.S. District Judge James Knoll Gardner held the hearing to decide whether Neison can invoke his Fifth Amendment rights. Gardner did not say when he will rule.
Neison's testimony is ''extremely important'' to the city's defense of the civil rights and wrongful death claims, Bethlehem lawyer Susan Engle told Gardner. No other witness can give the testimony he would provide, she said.
''The defendants have run into hearsay problems again and again because there is no other way to get this information into evidence,'' she said.
Engle's statement indicates that the defense is hoping Neison would testify about what he told police before the deadly 1997 raid. Only the person who uttered those statements can testify about them, according to court rules.
Neison bought drugs from Hirko or someone else in his home four times before the raid, giving police justification for a search of Hirko's home, according to the defense. In addition, according to the defense, Neison told police that Hirko had a handgun the night of the raid and was using heroin and cocaine.
Based at least partly on that information, police decided Hirko was dangerous and that they should take special precautions when they entered his home, including using a flash-bang distraction device.
Police shot Hirko 11 times and accidentally set the home on fire with the distraction device. The fire caused severe damage and forced Hirko's fiancee to flee.
Police claim Hirko shot at them first. But lawyer John Karoly Jr., representing Hirko's family, fiancee and landlord, maintains Hirko was unarmed.
Neison became involved in the Hirko investigation after Moravian police found him with marijuana. Instead of filing charges, the campus police referred him to city police as an informant.
Before the hearing began Tuesday, the two sides disagreed whether the statute of limitations protected Neison. Trying to get around the statute of limitations debate, the defense asked prosecutors to grant Neison immunity from prosecution.
Engle gave letters to Gardner on Tuesday from Northampton County District Attorney John Morganelli and First Assistant U.S. Attorney Geoffrey Moulton Jr. of Philadelphia, offering immunity. But Gardner and Karoly raised questions about whether Neison would be fully protected.
Moulton promised to not use in a criminal case any testimony Neison might give in the trial.
Morganelli said that he has ''no intention whatsoever'' to charge Neison. He said Gardner would have the power to formally provide immunity. Morganelli indicated that if Gardner declines, he could seek such an order from a county judge.
And Engle noted that, in 1997, state Attorney General Mike Fisher ruled that the Hirko shooting was justified, indicating that state authorities would not prosecute anyone for Hirko's death.
When Gardner asked Engle how he could have authority to grant immunity, Engle replied, ''Your honor, I'm not certain that you do.''
In his reply, Karoly said Neison could be drawn into a criminal prosecution of the police defendants after the trial, based on new evidence disclosed during the trial.
''I believe that is not only possible but likely,'' Karoly said.
Neison listened to these arguments silently while sitting on the side of the courtroom, chewing gum. He was not represented by a lawyer.
Once he had climbed onto the witness stand, Neison swiveled the chair to face Gardner, who was about 10 feet away.
Gardner explained that it was the judge's role to decide whether to order Neison to testify, but that he wanted to protect Neison's rights.
''I'm not going to ask you any details of what went on in those undercover buys,'' Gardner said.
''Do you understand what I'm saying?'' Gardner asked.
''I think so,'' Neison replied.
After Neison invoked his Fifth Amendment rights, Gardner asked him why he believed he had a right to do so.
''Well, I was always under the assumption that it was a right of mine as a United States citizen when I felt it was applicable,'' Neison said. ''And I surely do right now.''
After conferring with the lawyers, Gardner asked Neison if he has information that would implicate him that is not known by others.
''Honestly, I'm not sure what other people know,'' Neison replied. ''I'm inclined to say yes right now.''
Gardner asked if Neison was concerned about being implicated for anything other than the Hirko drug buys, the information he gave about Hirko and the Moravian marijuana incident.
''Yes, your honor,'' Neison replied.
With that answer, Gardner ended the hearing.Copyright © 2015, Los Angeles Times