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This will not be a Martha Stewart column because the world doesn’t have room
for another one. It’s about one reaction to her trial which came out of
nowhere and should be returned thereto, never to be heard of again. This is the
statement of Lawrence O’Donnell on the McLaughlin show last Sunday, which was as
follows:
“What I object to is the notion that it is a crime to lie to a federal
agent.
We have a First Amendment right to lie to anyone we want, as long
as we are not under oath in a judicial proceeding, where it does
become a crime called perjury”.
Mr. O’Donnell is a former chief of staff of a Senate committee, which makes
him a guru and gets him on TV. As we see from his statement, he knows about
the crime of perjury, but it seems he’s never heard of obstruction of justice.
That concept is why it’s not just a “notion” that lying to a federal agent
is a crime, it’s a fact. And it’s not confined to federals, but it extends to
local law enforcement too. It’s something to do with the prejudices of the
taxpayers. You see, they pay quite a lot for all these federal, state and
local cops and they just don’t like to see their time wasted. So when you humbug
them or send them on a wild goose chase or up a blind alley, you’re fooling
with the wrong people, and you will be made to pay. That’s pretty much the
reason perjury’s a crime too -- the rationale’s the same.
Of course it’s true that nobody has to talk to the police if he or she doesn’
t wish to. If they make that choice, they are within their rights and no one
can force them to do otherwise. In a recent case the Skakel family in
Connecticut at a certain point refused all cooperation with the police in the
investigation of the Martha Moxley murder, which caused the original investigation
to grind to a halt for years before being reopened.
The Skakels could do this, being independently wealthy, with only their
reputation to lose, but it’s not that easy for everyone. Even for them, there is
one crime where it’s a crime not to reveal any information you may have. That
is kidnapping. And the right to silence over every other crime has its
limitations too. If you hold a government job or a government contract, for
instance, it carries an obligation to cooperate with law enforcement, meaning that
you can lose either of them for not answering questions. If you have any kind
of a government license, including a driver’s license, you could lose that for
the same reason. Many private jobs, especially positions of trust, require
that you cooperate with the law or else. So the right to silence remains
absolute, but the right to retaliate against it also continues to exist. It’s a
world of compensations, as they say. Actually Abe Lincoln said it, and he was a
pretty good lawyer.
Speaking of lawyers, one of them offered a useful slant on the question of
talking or not talking during the O.J. Simpson case. When Simpson’s lawyers
were complaining of the way his statements to the police had limited their
options (for suggesting alternative explanations of his actions) Floyd Abrams, a
civil rights lawyer, said that he thought it was the obligation of a citizen to
cooperate with the police if he’s innocent of a crime as he claims to be. He
was correct, it is an obligation, which brings it in conflict with a right, the
right to silence. The right trumps the obligation, I’m afraid, the way
conscientious objection trumps the obligation of military service, but it still doesn
’t escalate from a right not to speak into a right to speak falsely. Sorry
about that, Mr. O’Donnell.
These arguments about talking and not talking and which is better for you
have been going on since the 1940’s when congressional committees first began
asking questions of people suspected of subversive activities. Up to that time
most people had never even heard of the Fifth Amendment, but they soon learned
about it. They learned even more in 1950 and 1951 when the Kefauver Senate
hearings turned the spotlight on the Mafia. This was the first public event
carried on television that reached an audience which basically was the whole
population of the country. I can see it now…
The arguments over the Fifth started then and they’re still going on. They’
ve never influenced me, I consider any invoker guilty of the crime which he
refuses to talk about. The Constitution says you can’t be forced to be a
witness against yourself in any criminal case. Okay. Please don’t tell me you took
it because you would have had to admit things that put you in a bad light
even though you’re guilty of nothing. That’s not being a witness against
yourself as a criminal, it’s something else which doesn’t come under the Amendment.
But you’ll still hear it trotted out from time to time.
The only way I can consider Fifth Amendment pleaders innocent is in the case
of people like Oliver North and Admiral Poindexter, who took it at a time when
Congress was being very innovative in finding forgotten laws to be used in
indicting people they didn’t like. When the two ascertained that no that there
were no tricks up anyone’s sleeve and they could only be charged with normal
things like altering records and the like, they dropped the Amendment in token
of their belief that they were not guilty of any such violations. If they hadn
’t done this I would have considered them to have pleaded guilty to crime.
Whatever do they do in countries where there is no Fifth Amendment? They get
along, believe it or not. In France there is a right to remain silent, but
since the French take Mr. Abrams’ idea of the duty of a citizen to cooperate
farther than we do, they are likely to jail you for invoking it. It can also be
used against you in a trial. Here we can’t hold it against a defendant. We
can’t even hold it against him that he didn’t testify in his own behalf.
O.J. Simpson not only didn’t have to answer questions about what the hell he was
up to the night his wife was killed, the jury was prohibited from considering
the meaning of his refusal to testify. If a juror were to say “It looks like
he has something to hide”, he would have been committing the violation of
using common sense in a legal proceeding and subjecting himself to punishment
therefor.
England, the country where our common law comes from, has stopped worrying
itself sick over the possibility that someone somewhere might sometime clam up
for honest reasons [‘even the innocent have valid reasons for remaining silent’
{critics}] although they are unable to produce any examples. Protecting
other people is not a valid reason under the ban on self-incrimination. In
England now judges and juries are entitled to draw sensible conclusions from
evasions and refusals and memory breakdowns. Just like France, in other words,
except you can’t be jugged just for not talking. Should we follow the French, the
British, or possibly the Vigilantes or Judge Lynch or what? To be continued.
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