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Judge puts Heather Mack in a pickle, says she waived the 5th

Heather Mack behind bars in Bali | AP file photo

A Cook County judge may have put Heather Mack in a legal pickle Thursday, ruling she has waived her constitutional right not to incriminate herself by talking to “anyone who would listen at any time” about her mother’s brutal 2014 slaying in Bali.

Now Mack could find herself testifying, by telephone or other means, at a July 28 hearing in the courtroom of Cook County Judge Neil H. Cohen over her refusal to answer allegations made in a civil case by the estate of Sheila von Wiese-Mack, according to her attorney.

But she would do so with the threat of a U.S. prosecution hanging over her head.

It’s the latest twist in an international legal saga that began Aug. 12, 2014, when von Wiese-Mack’s body was found stuffed into a suitcase outside the St. Regis Bali Resort. Mack, 21, and her boyfriend, Tommy Schaefer, 23, have been convicted in Indonesia of von Wiese-Mack’s murder. Schaefer was sentenced to 18 years in prison for beating von Wiese-Mack to death, and Mack is serving a 10-year sentence for helping.

Schaefer’s cousin, Robert Bibbs, also faces sentencing in Chicago next week for helping plot von Wiese-Mack’s murder.

Meanwhile, the trustee of von Wiese-Mack’s estate has been fighting in Cohen’s courtroom to keep Mack from inheriting her mother’s money. But Mack’s lawyers claim there is also an ongoing U.S. grand jury investigation into Mack’s role in her mother’s death. They say Mack even has a federal public defender.

Mack lawyer Vanessa Favia hoped Cohen would put the case involving von Wiese-Mack’s estate on hold Thursday because it threatens to violate Mack’s 5th Amendment right against self-incrimination. Given the potential U.S. investigation, Favia has said Mack faces a “realistic threat of incrimination” if she responds to a detailed, 36-page petition filed by von Wiese-Mack’s estate. The petition implicates Mack in the murder and lists past acts of violence by Mack against her mother.

Cohen instead ruled Thursday that Mack “dropped that shield quite a long time ago” by making prolific statements about her mother’s murder to the press, on YouTube and even by trying to call the judge.

“Whatever 5th Amendment implications Heather might have had in making her statements, they seem to have been waived by her voluntarily having made statements to anyone who will listen at any time,” Cohen ruled as he denied Favia’s motion to stay the case.

The ruling appeared to leave Mack with a difficult choice. She could hurt herself in the ongoing civil case by refusing to answer the allegations made by her mother’s estate. However, her answers could come back to haunt her if she is ever criminally charged in the United States in connection with her mother’s death.

Jeffrey Cramer, a former federal prosecutor, said Mack would be wise not to answer questions in the civil case, despite the judge’s ruling, because a potential criminal case could carry greater penalties. He said, “there’s a price for this,” because of the consequences Mack could face in Cohen’s courtroom, but he questioned whether Mack had really waived her rights.

“You don’t give up your Fifth Amendment right because you talk to other people about the issue,” said Cramer, managing director in Chicago of Berkeley Research Group.

While Cohen pointed out that “there is no case that has been brought against Heather in the United States,” a criminal prosecution appears to be a possibility. The Chicago Sun-Times first reported on the existence of a federal investigation in August 2015. Then, a federal magistrate judge signed off in January on a search of an iPhone the FBI believes belonged to Mack.

And in a court filing earlier this month, federal prosecutors in Chicago suggested a hypothetical prosecution of Mack and Schaefer in the United States could end with a minimum 24-year prison sentence.

Despite Cohen’s ruling, Favia continued to insist in court Thursday that Mack had not waived her 5th Amendment protections. The judge then scheduled a July 28 hearing to determine the reasonableness of Mack’s refusal to answer the petition filed by von Wiese-Mack’s estate, which is overseen by von Wiese-Mack’s brother, William Wiese.

After court, Favia told the Sun-Times it is an “open possibility” that Mack will testify at the hearing, either by telephone or some other means.