Fans of Luke Cage are still reeling from the show’s cancellation in mid-October. In honor of Harlem’s hero, we’d like to take a look at the show -specifically the fate of one of Cage’s many enemies, Hernan “Shades” Alvarez from the perspective of a San Diego federal crimes lawyer. Be warned, the bulk of this post is focused on the last episode of the show, so if you’re not 100% caught up, you’ll want to hold off on reading this post until you finish binging.
Shades’ Shady Immunity Deal
Shades spilled the beans on his dealings with Cottonmouth and Mariah in a proffer interview with the Assistant U.S. Attorney (AUSA) and Misty. He had a lawyer, but she recused herself from the case after finding out her son was nearly killed by Shades (most San Diego criminal defense attorneys agree that this was the right move on her part as she would otherwise have a conflict of interest in defending her client). Shades should have insisted on hiring another lawyer, but he believes his immunity is secure and he keeps talking.
Misty forces Shades to help her get Mariah’s gun and wear a wire while doing so, which almost gets Shades killed both when Mariah confronts him about snitching and when Bushmaster attacks. After all of that, Shades is arrested and charged with all of the crimes he confessed to during his interview when Mariah dies because Misty claims his immunity was contingent on her conviction.
If you think that doesn’t seem right, you’re not alone. Here’s what really would happen in this case.
Shouldn’t Shades Have Been Protected?
As we stated earlier, Shades really should have hired another lawyer. Whether you are facing charges in New York or San Diego, a federal crimes lawyer is critical when seeking an immunity deal. While Misty claims Shades’ attorney would have explained that his immunity only applied if Mariah was convicted, that’s entirely untrue. In fact, putting such restrictions on immunity deals would not only make people a lot less likely to co-operate, but would also entice them to lie if they thought the truth might not be enough to result in a conviction. And lying not only would not help the investigators and prosecutors of a case, it would also put the witness at risk as lying during these interviews (even withholding parts of the story) can result in the immunity deal being completely negated and your being charged with everything you confessed to.
That being said, Shades would probably still be arrested and charged for everything he confessed to in his proffer interview when Mariah died. That’s because a proffer is only an informal agreement (though it has some very serious paperwork involved). If he never sealed the deal with the AUSA, he never formalized the immunity. A proffer is simply where a witness discusses what he can offer the prosecution in terms of testimony and most written proffer agreements, like the one Shades signed, specifically state that no formal offer of immunity have yet been offered.
What is said during a proffer interview is protected since the witness gave up their Fifth Amendment right to silence. But all that does is prevent the confessions made in the interview from being held against the witness. Investigators can still uncover other evidence to be used against them. For example, Shades said that he shot Candace in his interview. If investigators found footage showing him going to the crime scene or if they found Shades’ fingerprints on Misty’s phone, which is how Shades said he lured Candace to come out that night, they could use that evidence to charge him with a crime.
Would He be Able to Fight the Charges?
When proffer agreements fail, it can be very difficult for the defendant’s criminal lawyer to fight any crimes he confessed to during the interview. That’s because while the interview cannot be used against the defendant if he has told the truth, any variance from the story he told during his interview can result in the interview being entered into evidence. That is why proffer agreements are known for being very risky and should never be entered into without a San Diego federal crimes attorney at your side.
So since Shades would have to stick with the story he laid out to Misty and the AUSA, his best defense would instead be showing that his rights were violated by the proffer agreement. For example, when his lawyer left, Shades asked if he had immunity and Misty assured him he did. He was not informed that the proffer was a temporary arrangement that still needed to be formalized further and he was not advised that he should get another attorney. He was instead told that he already had immunity.
To make matters worse, even after telling him that he was protected, Misty then turned around and told Shades that he had to wear a wire and get Mariah’s gun in order to get his immunity. Not only was this not true, but it also put Shades’ life at risk. While police are permitted some flexibility when it comes to lying to defendants to get them to confess, telling someone they have immunity when they don’t and then putting their life at risk needlessly is absolutely unacceptable. Finally, since Misty seems to have arrested Shades purely based on what he said in his proffer interview without obtaining any additional evidence, he would likely be freed again by the prosecution given that there was no evidence that could actually be used to charge him.
If you are considering providing the government with testimony in exchange for a reduced sentence or immunity from prosecution, it is critical you work with a San Diego federal crimes defense attorney. Remember, you don’t want to end up behind bars like Shades! Call (760) 643-4050 or (858) 486-3024 to schedule a consultation with Peter M. Liss.
Creative Commons Image by John McStravick