Category Archives: Fifth Amendment

After 49ers defensive lineman Ray McDonald was arrested for domestic assault in August, coach Jim Harbaugh defended the teams decision not to take action by wrapping himself in the nations founding documents.

[T]his is America, youre innocent until youre proven guilty, Harbaugh said at the time. I dont know what more I can say about that and I have great respect for that principle. . . . Its in the Constitution. Its in the Constitution. Its well defined. The Fifth Amendment.

Harbaughs respect for the Fifth Amendment (which may not have been quite as strong if the player in question had been a bottom-of-the-roster slappy) doesnt match the NFLs attitude toward the Fifth Amendment. Under the new personal conduct policy, the player has no right to remain silent.

Because the Fifth Amendments protection against self-incrimination does not apply in a workplace investigation, the league will reserve the right to compel an employee to cooperate in its investigations even when the employee is the target of a pending law enforcement investigation or proceeding, the new policy states. An employees refusal to speak to a league investigator under such circumstances will not preclude an investigation from proceeding or discipline from being imposed.

Similarly, a criminal defendants refusal to speak in a court of law wont preclude a prosecution from proceeding and discipline from being imposed. However, because the NFL wont be honoring the various other Constitutional protections that apply when liberty is on the line (like proof beyond a reasonable doubt), its much easier for an employee who remains silent to end up being deemed guilty in circumstances where breaking the silence may have exonerated him.

If the player speaks, however, anything he tells investigators may be used against him in his criminal case. Under the rules of evidence applicable in every American jurisdiction and all federal courts, anything a criminal defendant says in any setting can be introduced against him at trial.

For the NFL, that could create awkward moments, transforming league investigators into witnesses, with subpoenas issued for testimony and any notes or other record of what the player said. So the NFL probably would prefer that the player refuse to cooperate; if the player talks, the NFL eventually will be cooperating in the criminal case, whether the NFL wants to or not.

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New personal conduct policy disregards Fifth Amendment protections

The jibe about how DAs can get a grand jury to indict a ham sandwich was uttered by a former chief judge of New York state, Sol Wachtler. Now the progressives want to make ham sandwiches out of the cops in addition to the rest of us.

The rush is on in Albany for a law that would require appointment of a special prosecutor whenever a police officer kills an unarmed civilian. You could have Zeus for your local DA; a special prosecutor would still be required.

This brainstorm is being hawked by the leftist politicians after a grand jurys failure to indict Officer Daniel Pantaleo in the death of Eric Garner. A similar law was also proposed in Missouri, after the fatal police shooting in Ferguson.

In Albany the measure is being readied by Assemblymen Karim Camara (D-Brooklyn) and Marcos Crespo (D-Bronx). This is a watershed moment, New York Citys public advocate, Letitia James, told the Associated Press this week.

Its clear that the system is broken, James says. The New York Times has come unglued over the issue, saying there is a crisis of confidence in prosecutors. The gist of the complaint is that grand juries so seldom indict police officers.

But what is a grand jury, anyhow?

My favorite definition is that a grand jury is a right, one designed to protect individuals from mob justice. At least in America and New York state, it is a right that inheres in all persons who are accused of a capital or otherwise infamous crime.

That language is from the Fifth Amendment, which is part of the Bill of Rights. No person, the amendment says, shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.

Similar phrasing exists in New Yorks Constitution, whose grand-jury protection is among the strongest in the country.

It doesnt say that no person shall answer for an infamous crime unless on indictment by a grand jury except for cops. It says no person period.

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Grand idea behind the grand jury

New Kensington Detective Lt. Jim Klein climbed up and down the emotional spectrum from anger to disgust to frustration Friday.

Frustration finally took hold as Klein sat in his office discussing how, about an hour before, police were forced to withdraw charges against two New Kensington men accused of trying to kill a third city man.

You feel like you've had your heart ripped out, and now you're fearful of what might happen next if this beef hasn't been settled, Klein said.

This is not on us, Klein said firmly. We're doing our job.

He said the charges were dropped because the shooting victim, Jadrian Race Toochy Wade, refused to testify, Klein said. We were even exploring the possibility of giving him immunity.

He said that was because Wade, 21, had indicated he would invoke his Fifth Amendment rights against self-incrimination if he testified.

But we were advised by Mr. Wade's attorney that he wasn't even able to meet with Mr. Wade to discuss what he was seeking immunity for, Klein said.

When we were at the magistrate's a couple of weeks ago, the victim had an attorney, and the attorney advised me the cIient would not testify on Fifth Amendment grounds, said Westmoreland County Assistant District Attorney Larry Koenig. In other words, him testifying might incriminate him on other matters, including the shooting, itself. He did not tell myself or Detective Klein that himself, but his attorney did, and we had to respect that.

Wade's attorney, Fred Rabner of Pittsburgh, did not return a Valley News Dispatch reporter's call seeking comment for this story.

A Woodmont Avenue resident, Wade was shot three times in Proctor Alley around 1:30 a.m. on Aug. 3.

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New Kensington shooting victim refuses to testify; charges withdrawn

LANSDALE >> A Lansdale man accused of a harrowing domestic assault last month during which police said he choked his pregnant girlfriend, threatened to kill her, and then tied her up and told her she was going to watch him die as he shot up heroin was ordered Nov. 20 to stand trial on several criminal counts after a dramatic preliminary hearing in which the alleged victim took the witness stand, unsuccessfully tried to plead the Fifth Amendment to keep from testifying, then recanted the statement she gave to detectives on the day of the alleged incident.

Steven DiPanfilo, 33, of the 800 block of Derstine Avenue, faces trial on two counts of misdemeanor simple assault, one count each of misdemeanor terroristic threats, misdemeanor recklessly endangering another person and misdemeanor false imprisonment, and summary counts of harassment and disorderly conduct.

Sitting at the defendants table inside Lansdale District Judge Harold Boreks courtroom next to his attorney, Robert McGuckin, DiPanfilo who is free on $25,000 bond drew Boreks ire early in the proceedings when, after McGuckin objected to a Lansdale police detective taking the stand to read the entire statement given by the victim but was overruled by the judge, DiPanfilo began to loudly object as well.

Youre going to get a $100,000 bail if you continue, Borek snapped as DiPanfilo sank bank into his chair.

The detective then read the statement in full while DiPanfilo and the victim, who had been subpoenaed to appear at the hearing and sat behind the prosecutors table, both stared at the floor.

According to the statement, the woman said that in the early morning hours of Oct. 30, DiPanfilo woke her up and began arguing with her about their relationship the altercation escalated to the point where he told the woman he was going to knock her [expletive] teeth in, then grabbed her, put his hand over her mouth and held her down on the bed.

After telling the woman to be quiet, DiPanfilo took his hand off the womans mouth and put both hands around her throat and started choking her, while getting on top of her and preventing her from moving.

He then grabbed the woman by the hair and yanked her to the edge of the bed, tied her hands together with a black T-shirt and told her she was going to watch him die because I was a liar and a cheater, according to the statement, as he prepared a syringe full of what she believed to be heroin and injected himself, then kept her tied up against the bed for a few hours while he nodded in and out from the effects of the drug,

During the entirety of the incident, according to her statement, the woman repeatedly begged DiPanfilo to let her go and to let her get her twin 11-year-old sons who were asleep in the house out of the residence, but he said to her, Sit the [expletive] down, you are not going anywhere and that he would kill her if she didnt shut up.

She finally got out of the residence with her two boys and officers responded to the home around 7:30 a.m., police said. Continued...

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Trial ordered for Lansdale man accused of harrowing domestic assault incident

Twitter is full of comments about the Ferguson grand jury decision that show many writers have no idea about a fundamental right under the U.S. Constitution.

Those commentators argue that the grand jury should have charged Police Officer Darren Wilson with a crime for killing unarmed teenager Michael Brown, even if the jurors believed the evidence failed to support an indictment.

Typical of the comments were:

But the first part of the amendment is a requirement that a grand jury issue a legitimate indictment before any defendant is brought to court.

A number of commentators have argued that even if the evidence was insufficient to indict Officer Darren Wilson, justice would have been better served if the grand jury had indicted anyway, former federal prosecutor Andrew C. McCarthy wrote Tuesday for National Review.

That way, the reasoning goes, we could have had a public trial in the light of day where everyone could have seen that the case was insufficient. That, we are to believe, would have made it easier for the community to accept the result.

McCarthy, the New York federal attorney who prosecuted the terrorist convicted of trying to destroy the World Trade Center in 1995, added that rabble-rousers wanted Wilson charged with a crime despite the lack of probable-cause evidence.

The Fifth Amendment holds that a person has the right not to be subjected to a public trial i.e., the right not to be indicted unless the state can prove to a grand jury that there is probable cause to believe he committed a crime, McCarthy wrote.

Officer Wilson had a constitutional right not to be indicted in the absence of sufficient evidence. That right to individual liberty outweighs the medias abstract claim that a public trial would serve the public interest.

Arthur Aidala, a defense lawyer and commentator on Fox News, noted that the prosecutions case would never have survived a public trial.

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Andrew McCarthy: 'Rabble-Rousers' Wanted Wilson Charged ...

In more than four decades as a New York City dentist, Irving Peress pulled teeth and filled cavities in unremarkable obscurity.

But for a few months 60 years ago, he was the focus of national attention: exhibit A in Sen. Joseph R. McCarthys campaign to warn the nation of the communist threat to the American way of life and the extent to which it had already penetrated the countrys vital institutions.

Dr. Peress, who died Nov.13 at 97, was a primary target in McCarthys drive to ferret out the communist fifth column in the U.S. Army, into which the dentist had been drafted during the Korean War.

He was commissioned an officer in 1952 and signed an oath affirming that he had never been a member of an organization that sought to overthrow the government by unconstitutional means.

But he invoked his Fifth Amendment right to protection against self-incrimination when asked if he had ever been a member of the Communist Party or any affiliated body. This got him put under Army surveillance, but he was promoted nevertheless from captain to major in October 1953.

An anonymous source told the Senates Government Operations Committee about it. McCarthy, a Wisconsin Republican sitting on the committee and serving as chairman of its subcommittee on investigations, decided to hold hearings into communist saturation of the Army.

He wanted to know: How could someone under surveillance for communist connections get a promotion in the Army? This looked like yet another example of coddling communists, the senator said, adding that there was somewhere at the Pentagon a secret master who had somehow engineered Dr. Peresss promotion.

In hotbeds of anti-communism around the nation, the question was asked: Who promoted Dr. Peress?

Several times during his testimony before McCarthys committee, Dr. Peress invoked the Fifth Amendment. McCarthy called him a Fifth Amendment communist. Dr. Peress said anyone attacking him for exercising this right was himself guilty of subversion. He repeated that he never sought the violent overthrow of the U.S. government.

To McCarthy, Dr. Peress remained the key to the deliberate Communist infiltration of our Armed Forces.

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Irving Peress, dentist who was subject of Sen. Joseph McCarthys hearings, dies at 97

Episode 1: Alice + Freda Forever by Alexis Coe
In this episode, we talk about Alexis Coe #39;s new book Alice + Freda Forever: A Murder in Memphis. Also discussed: the Fifth Amendment, monster truck rallies, Janet #39;s propensity for arson, lesbian...

By: The Book Report

Originally posted here:
Episode 1: Alice + Freda Forever by Alexis Coe - Video

Last evening (November 13), attorneys Mike Aguirre and Maria Severson filed a suit in federal court saying that the California Public Utilities Commission (CPUC) and Southern California Edison took 17.4 million ratepayers' property (money) by charging them $3.7 billion for electricity while the San Onofre nuclear plant was shut down, beginning in early 2012.

The theory is that the regulatory body and Edison were taking customers' private property without just compensation. That is banned by the Fifth Amendment.

Also named in the suit are Michael Peevey, president of the commission, and Mike Florio, one of the commissioners.

The only way that the California Public Utilities Commission could force customers to pay for failed generators at San Onofre would have been to show that Edison acted reasonably in obtaining the generators, according to the suit.

However, Edison deployed the steam generators without a safety license amendment from the Nuclear Regulator Commission. The decision came from the top of Edison, says the suit. Edison has admitted there were design errors causing steam generators to fail. A nuclear scientist was hired to do a study, but when he reported there had been errors, the CPUC obstructed his investigation, thus thwarting any determination of whether Edison was responsible for the failure, according to the suit, which notes that Peevey is a former president of Edison.

San Diego Gas & Electric (SDG&E) owns 20 percent of the now-shuttered San Onofre, but is not named in the suit because it had opposed Edison's plans for replacing the old steam generators with four new ones.

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Suit says CA public utilities commission violated 5th Amendment

4 5 Decrypting Your Devices Fifth Amendment Privilege 10 51

By: Artadys

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4 5 Decrypting Your Devices Fifth Amendment Privilege 10 51 - Video

Even in a school district with more than its share of charter-school controversies, the answers stood out. Questioned about billing practices, two officials of an embattled Philadelphia charter school cited their Fifth Amendment right to silence - 77 times.

At hearings on whether to revoke the Walter D. Palmer school's charter, the questions ranged from hard-nosed ("Isn't it true that you lied . . . about accurately submitting invoices?") to humdrum ("Do you have a master's degree?").

Daira Hinson, the Palmer school's director of administration, invoked the Fifth Amendment 22 times in the hearings, which ended last week. Richard Troutman, its controller, did so 55 times.

"It is the first time in anybody's knowledge that a witness has pleaded the Fifth in a charter hearing," said district spokesman Fernando Gallard. "It's very surprising that two high-level administrators decided to plead the Fifth when we are asking questions on issues of overpayment. We're talking about $1.5 million over one single fiscal year."

The Inquirer obtained a transcript of the hearings via a Right To Know Law request.

While last month's abrupt closing of the Palmer charter's high school in Frankford caused turmoil for students and staff, the transcript sheds new light on the scope of the school's problems - which also include an ongoing federal investigation. An agent from the U.S. Department of Education's inspector general's office sat in on portions of the hearings.

Another witness in the hearings was school founder Walter D. Palmer, who stressed that citing their Fifth Amendment right against self-incrimination did not make school officials "guilty of anything."

On Monday he also defended his school in an Inquirer interview, saying, "They could bring a U-Haul in, and they are not going to find any culpability."

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Palmer school officials cited Fifth Amendment in charter revocation hearing - 77 times