Author’s Note:  the article below first appeared in the Winter 2011 Edition of The Florida Defender, the quarterly journal of the Florida Association of Criminal Defense Lawyers (FACDL).  It was also published in several newspapers in Florida.

Why Our Clients Should Remain Silent But We Shouldn’t

GUILTY.  As a criminal defense lawyer, it’s not a word I like to use; and not a word I like to hear, especially from a jury.  The offense I am pleading to is not a crime, so the Fifth Amendment doesn’t apply, but for us as lawyers, “it oughta be a crime” as the old saying goes.  I am a lawyer, so I’m owning up to it.  Over the last couple of decades, our reputations and the public’s understanding of what we do, have taken a beating.  We are commonly ranked close to the bottom when the public is polled on its opinion of professions.  They don’t seem to know or understand the role we play in protecting their freedom, their rights, and their liberty.  And its our fault.

It is our fault because as lawyers, we possess two of the world’s most powerful and persuasive skills, command of the written word and of the spoken word.  In fact, along with research skills, they are our stock in trade.  As masters of these skills, we have the ability to persuade people, to change their opinions, and to move them to action.  Isn’t that what we do in our opening statements and closing arguments, in negotiations and in mediations?  Most, not all but most, of the presidents of the United States rose to that office because they were powerful and persuasive public speakers.  In this century alone, both of the Roosevelts, Kennedy, Reagan, Clinton and Obama quickly come to mind.  Abraham Lincoln was also an accomplished writer.  The others were either good writers or they had people with strong writing skills working with them.

Outside of our legal work, we have failed to use these skills to educate the public on the service our profession does for society.  It is trial lawyers who, by zealously defending the rights of their clients, especially when the client or the case is unpopular, have preserved and protected the rights of all Americans.  When we make the law work for one of us, it works for all of us.

It is our duty to use our skills to inform the public on the importance of lawyers.  We must write, we must speak, we must inform.  Since I have plead guilty to failing in this duty, it is time for me to reform.  What follows is the first step on my road to redemption.  I urge each one of you to give a speech, write a letter, participate in a public forum or use whatever your immense creative skills may inspire you to do to educate the public on what we do.

I was motivated to write the article below when I saw Alex Sink’s television ads implying that Rick Scott was guilty of a crime because he exercised his Fifth Amendment right not to incriminate himself.  Furthermore, the ad featured law enforcement officers and prosecutors as spokespersons for this attack on the Constitution.   As you will learn, the article is not about Alex Sink or Rick Scott, it is about the true purpose and meaning of the Fifth Amendment. Of course, the purpose of the ad was to influence voters to choose Ms. Sink on election day, but in her effort to persuade the voters, she shamelessly used sheriffs and prosecutors to misinterpret the Constitution by implying that those who invoke the Fifth Amendment must be guilty of a crime.  I could not allow this misinformation to go unanswered.  I wrote the article below the day before the gubernatorial election.  Here it is:

As I write this article, tomorrow is November 2nd, election day.  I don’t know who the winner in the governor’s race will be, so this is not “sour grapes” from me.  By the time this article is published, the election will be over, so it cannot be argued that I am trying to influence your vote.

I write this article because I can no longer stand by silently while the United States Constitution, particularly the Fifth Amendment, is vilified.  As a lawyer, and a member of The Florida Bar, I took an oath to support the constitution of the United States.  I cannot support the Constitution without defending it.

During her campaign for governor, Alex Sink ran televison ads featuring prosecutors and law enforcement officers who criticized Rick Scott for invoking his constitutional rights as guaranteed to him by the Fifth Amendment.  Ms. Sink’s television ads implied that Mr. Scott was guilty of a crime because he invoked the Fifth Amendment.  While Mr. Scott, his company, or both of them may have resolved the charges against them with an agreement to pay large fines, and they may have some culpability or even be guilty of the crimes for which they are accused, it is unfair, misleading, and unjust to infer guilt to Mr. Scott, or anyone one else, for invoking their constitutional rights under the Fifth Amendment.

When our forefathers wrote the Bill of Rights, they did not include the Fifth Amendment as a sanctuary for the guilty.  This precious right, purchased with the blood of our ancestors, was put into the Bill of Rights as a shield for citizens against the tremendous power of government.  Our forefathers realized that when a citizen is accused of a crime that power is focused upon one individual who stands to lose his liberty, his property, and, in some circumstances, even his life.  This power is awesome and frightening.  Nothing is a match for it, not even great wealth.

Our courts have long recognized the legitimacy of the Fifth Amendment.  The Supreme Court stated it clearly in the case of Ullman v. United States:

Too many, even those who should be better advised,  view this privilege as a shelter for wrongdoers.  They too readily assume that those who invoke it are either guilty of crime or commit perjury in claiming the privilege.  Such a view does scant honor to the patriots who sponsored the Bill of Rights as a condition to acceptance of the Constitution by the ratifying States.  The Founders of the Nation were not naive or disregardful of the interests of justice. (citations omitted).

Our forefathers did not exclude anyone, whether rich or poor, from the protections of the Fifth Amendment.  Even a man of Mr. Scott’s wealth is not a match for the tremendous power of the government when its focus is brought to bear upon an individual citizen.

Rick Scott is not my choice for governor.  Fortunately for me, there are several other alternatives on the ballot this year.  Whether Mr. Scott is my choice or not, whether I disagree with him or not, whether, I like him or not, he has the same constitutional rights as every other citizen.  As a lawyer, I support and defend the rights of all citizens, including Mr. Scott, to exercise any and all of their constitutional rights.  The fundamental principle that each and every one of us, no matter who we are, no matter what we are accused of, has the same constitutional rights is the bedrock of our freedom, our stability, and our security, both as a nation and as individuals.

Ms. Sink’s ads feature spokespersons who imply that Mr. Scott is guilty of a crime because he invoked the privilege of the Fifth Amendment.  This is a shameful slander to our constitution.  As a lawyer and a citizen,  I will not stand by silently while it is published.  As recently as 2001, our Supreme Court, in the case of Ohio v. Reiner, reiterated the purpose of the Fifth Amendment:

To the contrary, we have emphasized that one of the Fifth Amendment’s “basic functions . . . is to protect innocent men . . . ‘who otherwise might be ensnared by ambiguous circumstances.'”  … we recognized that truthful responses of an innocent witness, as well as those of a wrongdoer, may provide the government with incriminating evidence from the speaker’s own mouth.  (citations omitted).

Some of the spokespersons in Ms. Sink’s ads are law enforement officers.  Two of them are prosecutors.  While law enforcement disdains the Fifth Amendment because it resticts their ability to force “confessions” during interrogations, it is shocking to see prosecutors imply that a citizen who invokes his Fifth Amendment right is guilty by virtue of doing so.  Prosecutors are prevented from making or even implying this argument in the courtroom.  It is disgraceful that they would do so on television.

Our forefathers also knew that governments were run by human beings.  As such, the power of government was susceptible to misuse by those whose self-interest or personal agendas would motivate them to do so.  We need look no further back in history than the McCarthy era to remind us of this danger.

It is the duty of every lawyer to defend the constitutional rights of his clients, regardless of their popularity, public opinion, or reputation.  By defending the rights of their clients, lawyers defend the rights of us all.  When the rights of any citizen are infringed upon, we are all in danger until that injustice is redressed.

There is no substitute for liberty.  Our constitutional rights are the fortress of our liberty.  If we stand by silently while they are assaulted, that fortress may fall.  I, for one, cannot be silent.

                                                                   Carlton “Duke” Fagan

                                                                    Attorney

                                                                   Jacksonville, Florida