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So the judge is essentially taking their insistence on pleading the fifth as evidence of guilt? My main problem with this tactic is that it's not too tough to

So the judge is essentially taking their insistence on pleading the fifth as evidence of guilt? My main problem with this tactic is that it's not too tough to argue that this is a violation of the Fifth Amendment. I have no sympathies for the defendant in this case, but I'm concerned that a conviction along these lines wouldn't stand up on appeal. They could get it declared a mistrial, and this is not the sort of case one should leave vulnerable to that tactic.

ScottBurson 14y ago
I didn't see that anyone has suggested they could be convicted simply for taking the Fifth. Disbarment is another matter, though. I don't know exactly how that works, but I wouldn't be at all surprised if taking the Fifth in a situation like this is sufficient to get one disbarred.
- dragonwriter 14y ago
  > Disbarment is another matter, though. I don't know exactly how that works, but I wouldn't be at all surprised if taking the Fifth in a situation like this is sufficient to get one disbarred. Taking the Fifth, by itself, won't get them disbarred. The evidence of misconduct which is the basis for the judge hauling them in to show cause why they should not be sanctioned, OTOH, might be -- taking the Fifth is just a refusal to respond to the cause to show cause why they shouldn't be sanctioned. The case for the sanctions is, in the judge's mind, already made, they were just being hauled in to explain why the judge was mistaken in thinking they should be sanctioned.
ufmace 14y ago
This is not a criminal case against these lawyers, though. This is a continuation of a lawsuit that they filed. The judge essentially said that he was summoning them to court to explain how the business arrangement that they had set up and the suits they were filing was not an attempt to defraud the court and abuse the legal system. Since they declined to explain anything, they may be subject to such consequences as being disbarred or being fined for court costs. Since it is not a criminal or even civil trial against them, the rules are different, but there is no direct possibility of jail time or punitive fines. Now, the judge could very well refer the case to the US Attorney, in which case criminal charges could be filed against any or all of the attorneys/employees in question. In any trials ensuing from such charges, pleading the 5th cannot be used as evidence against them, but there would presumably be plenty of other evidence to demonstrate their guilt.
commandar 14y ago
From what I've gathered reading Popehat's coverage over the past hour: * The attorneys had previously brought a John Doe suit trying to identify an alleged copyright infringer. * The defending attorney brought it to the Judge's attention that the plaintiff was deliberately obfuscating the actual parties of interest in the suit against Federal court rules and that there were other shenanigans going on, e.g., the alleged CEO of one of the holding companies says he has nothing to do with the company and his identity was stolen by one of the attorneys for use in the suits they were bringing. * The Judge has been looking into the matter and is strongly inclined to believe that those claims are true. * The Judge had previously ordered these attorneys to show up and explain themselves on March 11. They blew off the court order and didn't show. * They did show up this time, but were unwilling to answer any of the Judge's questions. * The Judge will now decide whether he should levy administrative sanctions against these attorneys and whether he'll refer the case to the US Attorney for investigation into possible criminal conduct. So -- and I'm not a lawyer -- if I'm understanding this correctly, it's less that the Judge is taking this as evidence of guilt so much as they haven't taken advantage of either of the opportunities he's given them to explain the evidence he's seen that they've engaged in misconduct.
dragonwriter 14y ago
> So the judge is essentially taking their insistence on pleading the fifth as evidence of guilt? No, but he's probably taking their refusal to show cause why they should not be sanctioned for a variety of actions which appear, on their face, to warrant sanctions as, well, a failure to show cause why they should not be sanctioned. > My main problem with this tactic is that it's not too tough to argue that this is a violation of the Fifth Amendment. Except that its not, since there is no criminal matter before the court, and even if the matter before the court was criminal, the attorneys potentially subject to sanction aren't the defendants in that case, and their use refusal to testify is not being used as evidence of guilt. > I have no sympathies for the defendant in this case, but I'm concerned that a conviction along these lines wouldn't stand up on appeal. The people subject to sanctions are attorneys for the plaintiff (and, possibly also -- and this is the source of the problem -- simultaneously the actual plaintiff) in the case, not the defendants (and its not a criminal case, and there is no "conviction" at issue, unless a criminal referral is made against them and then a criminal case would begin.) > They could get it declared a mistrial, and this is not the sort of case one should leave vulnerable to that tactic. No, they couldn't, because its not a trial. That sanction might, on the extreme end, include a referral for criminal prosecution, but, were that to occur, their taking the Fifth (either now or in the criminal case itself) would still not be evidence of guilt, though it might be a missed opportunity to rebut other evidence of guilt.
scott_s 14y ago
This paragraph from the post is key in understanding the significance of the lawyers taking the fifth: I'm a criminal defense attorney. I cherish and support the Fifth Amendment. Its invocation here was completely lawful. But its invocation will have catastrophic consequences for the Prenda Law enterprise, which cannot possibly continue. When they appeared today, John Steele, Paul Hansmeier, and Paul Duffy were not merely individuals facing the overwhelming power of the state. They were also officers of the court and, according to the testimony of Brett Gibbs, the very attorneys who directed nationwide litigation for the Prenda Law enterprise. Judge Wright ordered them to answer for the conduct of that enterprise in his court, as he had the right and power to do. Their invocation of their Fifth Amendment rights in the face of that order is utterly unprecedented in my experience as a lawyer. In effect, the responsible lawyers for a law firm conducting litigation before a court have refused to explain that litigation to the court on the grounds that doing so could expose them to criminal prosecution. The lawyers in questions are not on trial. They are there as part of the court. So when they take the fifth, they are essentially saying "I am not a disinterested member of this court." That's not normal.

ScottBurson 14y ago

I didn't see that anyone has suggested they could be convicted simply for taking the Fifth. Disbarment is another matter, though. I don't know exactly how that works, but I wouldn't be at all surprised if taking the Fifth in a situation like this is sufficient to get one disbarred.

dragonwriter 14y ago
> Disbarment is another matter, though. I don't know exactly how that works, but I wouldn't be at all surprised if taking the Fifth in a situation like this is sufficient to get one disbarred. Taking the Fifth, by itself, won't get them disbarred. The evidence of misconduct which is the basis for the judge hauling them in to show cause why they should not be sanctioned, OTOH, might be -- taking the Fifth is just a refusal to respond to the cause to show cause why they shouldn't be sanctioned. The case for the sanctions is, in the judge's mind, already made, they were just being hauled in to explain why the judge was mistaken in thinking they should be sanctioned.

ufmace 14y ago

This is not a criminal case against these lawyers, though. This is a continuation of a lawsuit that they filed. The judge essentially said that he was summoning them to court to explain how the business arrangement that they had set up and the suits they were filing was not an attempt to defraud the court and abuse the legal system. Since they declined to explain anything, they may be subject to such consequences as being disbarred or being fined for court costs. Since it is not a criminal or even civil trial against them, the rules are different, but there is no direct possibility of jail time or punitive fines. Now, the judge could very well refer the case to the US Attorney, in which case criminal charges could be filed against any or all of the attorneys/employees in question. In any trials ensuing from such charges, pleading the 5th cannot be used as evidence against them, but there would presumably be plenty of other evidence to demonstrate their guilt.

commandar 14y ago

From what I've gathered reading Popehat's coverage over the past hour: * The attorneys had previously brought a John Doe suit trying to identify an alleged copyright infringer. * The defending attorney brought it to the Judge's attention that the plaintiff was deliberately obfuscating the actual parties of interest in the suit against Federal court rules and that there were other shenanigans going on, e.g., the alleged CEO of one of the holding companies says he has nothing to do with the company and his identity was stolen by one of the attorneys for use in the suits they were bringing. * The Judge has been looking into the matter and is strongly inclined to believe that those claims are true. * The Judge had previously ordered these attorneys to show up and explain themselves on March 11. They blew off the court order and didn't show. * They did show up this time, but were unwilling to answer any of the Judge's questions. * The Judge will now decide whether he should levy administrative sanctions against these attorneys and whether he'll refer the case to the US Attorney for investigation into possible criminal conduct. So -- and I'm not a lawyer -- if I'm understanding this correctly, it's less that the Judge is taking this as evidence of guilt so much as they haven't taken advantage of either of the opportunities he's given them to explain the evidence he's seen that they've engaged in misconduct.

dragonwriter 14y ago

> So the judge is essentially taking their insistence on pleading the fifth as evidence of guilt? No, but he's probably taking their refusal to show cause why they should not be sanctioned for a variety of actions which appear, on their face, to warrant sanctions as, well, a failure to show cause why they should not be sanctioned. > My main problem with this tactic is that it's not too tough to argue that this is a violation of the Fifth Amendment. Except that its not, since there is no criminal matter before the court, and even if the matter before the court was criminal, the attorneys potentially subject to sanction aren't the defendants in that case, and their use refusal to testify is not being used as evidence of guilt. > I have no sympathies for the defendant in this case, but I'm concerned that a conviction along these lines wouldn't stand up on appeal. The people subject to sanctions are attorneys for the plaintiff (and, possibly also -- and this is the source of the problem -- simultaneously the actual plaintiff) in the case, not the defendants (and its not a criminal case, and there is no "conviction" at issue, unless a criminal referral is made against them and then a criminal case would begin.) > They could get it declared a mistrial, and this is not the sort of case one should leave vulnerable to that tactic. No, they couldn't, because its not a trial. That sanction might, on the extreme end, include a referral for criminal prosecution, but, were that to occur, their taking the Fifth (either now or in the criminal case itself) would still not be evidence of guilt, though it might be a missed opportunity to rebut other evidence of guilt.

scott_s 14y ago

This paragraph from the post is key in understanding the significance of the lawyers taking the fifth: I'm a criminal defense attorney. I cherish and support the Fifth Amendment. Its invocation here was completely lawful. But its invocation will have catastrophic consequences for the Prenda Law enterprise, which cannot possibly continue. When they appeared today, John Steele, Paul Hansmeier, and Paul Duffy were not merely individuals facing the overwhelming power of the state. They were also officers of the court and, according to the testimony of Brett Gibbs, the very attorneys who directed nationwide litigation for the Prenda Law enterprise. Judge Wright ordered them to answer for the conduct of that enterprise in his court, as he had the right and power to do. Their invocation of their Fifth Amendment rights in the face of that order is utterly unprecedented in my experience as a lawyer. In effect, the responsible lawyers for a law firm conducting litigation before a court have refused to explain that litigation to the court on the grounds that doing so could expose them to criminal prosecution. The lawyers in questions are not on trial. They are there as part of the court. So when they take the fifth, they are essentially saying "I am not a disinterested member of this court." That's not normal.