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Constitutional Rights are for Everyone, Including the Right to Shut Up

don't forget your right to Shut UpSo, we finally get to the juicy bit. This shows the other side of the bad penny you toss every time you waive the Fifth Amendment and talk to the government, and forget your right to Shut Up.

When you try to talk your way out of things, sometimes you make mistakes in the way you tell your story. Sometimes you lie. But, frankly, to be convicted of obstructing or perjury or various other ‘crimes and misdemeanors’ you only have to look guilty to a jury of your peers – after they have reviewed all of the evidence and decided your guilt beyond a reasonable doubt (of course that is all that matters to any experienced criminal defense attorney in any case, but that is a discussion for another day…

So, Martha Stewart, Nixon, you name it. They lie and then they try to cover up whatever they did. The most amazing part of this game is the fact that so often they are not convicted of the crime they were trying to hide, but rather they are convicted for the very attempt to hide their crime. Their attempt to avoid prosecution results in a prosecution. Guilty of trying to be not guilty.

The ultimate irony.

In their piece in the Chicago Tribune, “Blago Guilty on One Count: Lying to the FBI,” Jeff Coen, John Chase, Bob Secter, Stacy St. Clair, Kristen Mack do a good job explaining how, by trying to talk his way out of it, Blagojevich actually talked his way right into it. A conviction for perjury, that is. A serious felony. Certainly something unbecoming a Governor… although in Illinois it is a bit of a right of passage, I suppose.

It is true that the jury deadlocked on the other 23 counts, and you might say that one conviction for perjury was worth it if it helped him avoid 23. However, it was skillful defense work, INVOKING THE FIFTH AMENDMENT AT TRIAL, that may have won the day. I teach this stuff to lawyers. What to say and how to act in a courtroom. And, one of the first things I tell them is that it is easy to talk. What is hard is knowing, as a trial lawyer, especially a criminal defense lawyer, when to SHUT UP and shut your client up.

The ins and outs of remaining silent during trial will be topic of our next analysis of the Blagojevich’s predicament.

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