Daily Archives: December 11, 2014

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 ...

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