Jason Clarke
CHICKASHA — The same loophole used to protect Attorney Steve Buzin’s client from self-incriminating statements, forced him to testify Friday.
Buzin attempted to use the Fifth Amendment to prevent his client, former deputy Jim Peek, from testifying in the preliminary hearing of Sheriff Kieran McMullen, former Chickasha Sgt. Helen McMullen, Deputy Robert Cacy, and former Chickasha Lt. Jerry Tyler.
During Peek’s own preliminary hearing in January, Buzin had cited O.S. 21 § 961 which prevented any of the statements made by the defendant regarding a gambling investigation from being used against him in prosecution.
According to Buzin, however, that protection of 961 stopped when Peek was charged and the Fifth Amendment took over.
Judge Ken Harris disagreed.
Harris stated the Fifth Amendment can only be invoked when a person is in jeopardy of being prosecuted for self-incriminating statements. Since O.S. 21 § 961 prevents an individual from being prosecuted for self-incriminating statements in a gambling investigation, Harris ruled the Fifth Amendment would not come into play. Furthermore, O.S. 21 § 961 compels individuals to provide testimony.
“My previous interpretation of the statute requires your client to answer the questions here today,” Harris told Buzin.
The statute book did not stop the witness from re-asserting his rights for every question, rather it required it.
With every question from the prosecution and the defense, Jim Peek would cite his rights under the Oklahoma Statutes and the United States Constitution from a folded piece of paper. Judge Harris would then advise the witness that the rights did not apply and compel him to answer the question. Multiple times, the question had been forgotten by this point and had to be asked again.
Relatively few questions were answered while Peek was on the stand for an hour.
Co-defendant Greg Parks also took the stand with similar results.
Defended by Mickey Homsey, the same attorney defending Helen McMullen, Parks also asserted the Fifth Amendment on each question and had to be compelled to answer.
Parks was not on the stand as long as Peek, however, the witness and a defendant sharing an attorney did create a problem. Harris informed Homsey that the issue needed to rectify itself before a complaint was filed.
The judge said that he found it interesting that Parks testified he did not see Helen McMullen receiving payouts, when both parties share Homsey as an attorney. Parks did testify to seeing Cacy and Tyler receiving payouts for their winnings on the Elks Lodge machines. Judge Harris clarified he was not implying that Parks had perjured himself, he just found the two points interesting.
