IN TEXAS VS. SALAZAR, ERNIE HERNANDEZ TAKES THE 5TH

By Juan Montoya
He is the direct supervisor of the defendant, his administrative assistant Raul G. Salazar.
His wife Norma is the brother of Roberto Cadriel, the convicted felon prosecutors say was hired illegally by the county.
His brother-in-law was allegedly assisted by employees in the Cameron County Human Resources Department to take the Civil Service Exam after having failed it twice. On the third time someone took it for him, he passed with flying colors.
Prosecutors have charged his assistant Salazar with two counts of tampering with a government document over the illegal hiring.
Numerous individuals – including Salazar, Cadriel, interim HR director Robert Lopez, and others have testified before a grand jury who issued the indictments against Salazar.
And today, as the pre-trial motions began in front of visiting judge Fred Hinojosa before the jurors were questioned (voir dire) we learned that Cameron County Pct. 2 Commissioner Ernie Hernandez is claiming protection under the Fifth Amendment and will not testify in court.
Hernandez, who spent a full three hours before the grand jury that issued the indictments without an attorney, now told the court through his lawyer Edmund K. Cyganiewicz, that he would claim the Fifth and wouldn't testify in open court.
In fact, even after Hernandez was offered immunity for his testimony, Cyganiewicz said his client would still not testify.
This, of course, raises many questions.
Hernandez is within his constitutional right to refuse to testify.
Legal experts such as Christopher Leroi say that:
"If you believe that you will testify to information that will incriminate you about an incident for which you have not been charged (and so jeopardy has not attached), then you are within your rights to claim the Fifth Amendment and refuse to testify about information that would possibly subject you to criminal prosecution," Leroi advices.

However, he said that you should "understand that both the DA and the judge might attempt to ask you why you believe that you would incriminate yourself and what you would say to incriminate yourself. They simply can not ask you the substance of what you are withholding in an attempt to not incriminate yourself."

"After being called to the stand and sworn in, you should advise the Court of your intention to claim the Fifth Amendment and rights within that amendment..."

However, other lawyers say that "you can't claim the right because you do not want to testify against a friend, for instance. This is normally done in a hearing without the jury. There may be reason they call you anyway to hear you assert the right."

Another reason for Hernandez's notice that he will claim the Fifth is because he has already testified before a grand jury and he may have given contradictory statements to those that might emerge from responses to questioning by other witnesses, opening up the possibility of a perjury charge.
This could give rise to a suspicion that he lied to the grand jury that issued the indictments and is afraid that those false statements will be exposed by the testimony of other witnesses during the trial.
However, some legal experts say that even if you claim the Fifth, if the he prosecutor then chooses to give you transactional or use immunity, then you would not be able to claim the Fifth and would still have to testify.

We know that so far, Robert Cadriel and Asst. county administrator David Garcia were given written deals by the DA. Would Hernandez's testimony have proven contradictory to theirs?

By refusing to testify, Hernandez, as an elected public official who swore to uphold the law and the constitution of the United States, is telling the public that he would rather the truth not be known.

Granted that testifying or not testifying in front of a jury does not mean he's guilty of some crime, but every so often Ernie Hernandez goes to the court of public opinion seeking approval of his candidacy to represent them on the city and later, the county commission.

The seated jury on the Salazar case might be willing to overlook his refusal to testify, but the court of public opinion may not be so forgiving come the March Democratic Party primary.