No Immunity for Congressional Witnesses & Fifth Amendment

J DUB

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No Immunity for Congressional Witnesses

AP NewsBreak: McGwire to attend hearing; no immunity for witnesses

By RONALD BLUM, AP Sports Writer
March 16, 2005

NEW YORK (AP) -- Mark McGwire plans to comply with a subpoena and attend Thursday's congressional hearing into steroid use in baseball, The Associated Press has learned.

McGwire's decision, revealed Wednesday by a representative of the former Oakland and St. Louis slugger who spoke on condition of anonymity, made it likely all six subpoenaed players would attend the session on Capitol Hill.

Less than 24 hours before the start of the highly anticipated hearing, Jose Canseco's request for immunity was denied by the House Government Reform committee. Canseco's lawyer said the former AL MVP will not be able to answer questions that would incriminate him.

``No witnesses have been or will be granted immunity,'' David Marin, a spokesman for committee chairman Rep. Tom Davis, said in an e-mail to the AP.

Canseco's lawyer, Robert Saunooke, was angry with the decision.

``It begs the question as to what they're convening this hearing for,'' Saunooke said in a telephone interview. ``They effectively cut the legs off from underneath us.''

Saunooke has said that without immunity, Canseco would invoke his Fifth Amendment right to refuse to answer questions.


``They told me we can't do the Fifth to every question,'' he said. ``It's an absolute right of every citizen to not be compelled to give testimony against themselves. They do not make the decision. We do.''

As an example of how immunity would limit Canseco, Saunooke brought up McGwire's repeated denials of steroid use.

``If he still holds to that lie, then the only way we can disprove that is to give specific instances and talk openly and freely,'' Saunooke said. ``If we can't do that, then our credibility is undermined.''

Boston pitcher Curt Schilling said he will comply with the subpoena, and Chicago White Sox trainer Herm Schneider said that Frank Thomas left Tucson, Ariz., on Tuesday, would stop at his home in Las Vegas, then would travel to Washington. Sammy Sosa and Rafael Palmeiro were given off days Wednesday and Thursday by the Baltimore Orioles, a sign they would testify.

New York Yankees slugger Jason Giambi, who also was subpoenaed last week, was excused Tuesday from testifying because of his involvement in the ongoing federal investigation into illegal steroid distribution.

``I would have done whatever they would have asked me to do and go from there,'' Giambi said Wednesday at the Yankees' training camp in Tampa, Fla. ``They gave me an opportunity to focus on baseball so I appreciate that.''

Baseball commissioner Bud Selig, union head Donald Fehr, baseball executive vice presidents Rob Manfred and Sandy Alderson and San Diego general manager Kevin Towers also will testify.

President Bush, the former Texas Rangers owner, refused to say whether the decision to subpoena players was an abuse of congressional power.

``I'm wise enough not to second-guess the intentions of the United States Congress,'' he said. ``I do appreciate the public concern about the use of steroids in sport, whether it be baseball or anywhere else, because I understand that when a professional athlete uses steroids, it sends terrible signals to youngsters.''

Canseco, whose recent book accused several baseball stars of using steroids, submitted an opening statement to the committee in which he said ``I did not know that my revelations would reverberate in the halls of this chamber and in the hearts of so many.'' Canseco's statement was first reported on the Web site of The (Baltimore) Sun, then obtained by the AP.

``I had hoped that what I experienced firsthand, when revealed, would give insight into a darker side of a game that I loved,'' he said, ``that maybe it would force baseball to acknowledge it condoned this activity for the sole purpose of increasing revenue at the gate. Unfortunately, by our presence here today, it is clear that MLB is not interested in admitting the truth.''

Canseco said he had endured criticism because of Major League Baseball.

``All of these attacks have been spurred on by an organization that holds itself above the law, an organization that chose to exploit its players for the increased revenue that lines its pockets and then sacrifice those same players to protect the web of secrecy that was hidden for so many years.''

-- -- =

AP Sports Writers Howard Fendrich in Washington, David Ginsburg in Baltimore and Howard Ulman in Fort Myers, Fla., contributed to this report
 
Since when could Congress deny one's right to not incriminate himself? This is a load of crap, and is further evidence that this is a witchhunt, plain and simple. If I were McGwire or Canseco or any of them, I would plead the fifth to ANYTHING they asked, period.

Getting on the subject of no being granted immunity, what could say McGwire even be charged with? Even if he gets up there and says he used steroids, there is nothing they can do unless there is some law that I am unaware of.

This is a complete abuse of Congressional power, and even the devil himself Bush would not even say affirmatively if it was or not. What a joke and a waste of time and our tax dollars.
 
I asked this the other day. Karch told me that you can't be prosecuted for saying, "one time I took steroids." whether you are under oath or not because they still need corroborating evidence.
 
I don't understand, congress has no law enforcement or judicial powers, seems to me they can't compell anyone to do anything.
 
Now the question is: what defines corroborating evidence? Can it be something like an express mail receipt showing that you sent money to someone, or what about if other people testify that you used steroids?

You don't need a body to convict a killer, so you definitely don't need a needle in the ass or a CD to convict a steroid user. BTW, does he deal with civil or criminal matters?
 
Karch,

(OFF TOPIC, sorry)

I gotta ask you a legal question. A guy I know was approached (knock and talk) by some DEA agents for something unrelated to steroids (pot), and they told him that they had him on video selling drugs, that they had been watching him for a while, etc. He of course would not speak them them without a lawyer initially, but then the agents told him to step outside and then told him to put his hands behind his back and that he was under arrest. Well one of the agents then said they didnt want to arrest him and so now I guess this guy was scared and he let them in, for fear that if he didnt he would be arrested right there. He ended up confessing to selling a little bit of pot, but he wasnt big time by any means. They didn't arrest him after this or anything, but he thinks they want him to be an informant.

I told him I didn't think this knock and talk procedure was valid at all, considering they way in which they coerced entry into his home by making him put his hands behind his back and all that. He is in college and can't afford a lawyer without telling his folks, but I told him he really needs to consult one because I have heard of several knock and talks being thrown out because of stuff like this. What do you think?
 
Karch can of course give you a real legal opinion, but I think LE has very wide leeway in regards to the manner in which they gain entry into a car/house or get people to talk. If you have read Legal Muscle, you would see some of the techniques used regularly by LE to screw with peoples minds and get them to open up.

And if Im not mistaken, it has been upheld by the Supreme Court that LE can lie to someone in order to gain information from them. Being honest is far from the only means that LE uses.
 
What defines tangible evidence? Do you mean audio/video evidence?

Bob, I showed him that part of Legal Muscle but it didn't really go into the technicalities of what is permissable behavior when conducting a knock and talk.
 
So, back to the knock and talk, are you saying that because he stepped outside that they could do this and there was no violation of his rights? To me, this is a clear case of coercion through intimidation and I do not see how this would hold up in court. There was no basis for an arrest, and if this is legal I will be shocked.

Is there any way that the police can arrest you during a knock and talk if you are just asserting your rights to an attorney? They told him the US Attorney said they could arrest him, but I really doubt this as if they had evidence to arrest him that would have a search warrant. He said something about how they would just take him in and freeze the evidence and then get a search warrant. I have read some cases where the officers smelled fresh marijuana inside the home while conducting the knock and talk and thus obtained a warrant, but this was not the case.

A lot of people need to pay attention to these discussions on knock and talks, because, as Rick Collins noted, they are a favorite method for going after people involved in steroid mail orders where probable cause for a warrant may not exist.
 
J DUB said:
I have read some cases where the officers smelled fresh marijuana inside the home while conducting the knock and talk and thus obtained a warrant, but this was not the case.
Going back to Karchs posts about searches, I think the smell of marijuana and subsequent search of the premises would be allowable since there wouldnt be an expectation of privacy if you can smell the pot outside the residence.

From what you described about your buddy, there was intimidation tactics used, but I dont see where coersion enters the picture. Screwing with someones mind in this instance, IMO, wouldnt be illegal.
 
You may be right and this may just fall under normal coercion tactics, but telling someone to step outside and to put their hands behind their back to me is more than just coercion.

From what I have read, one must feel free to ask the officers to leave at any time during this process. If some agents told you they were going to arrest you and to put your hands behind your back and all that, I don't think many would feel free to ask them to leave. He is not stupid and was fully aware of his 5th amendment rights, but he told me he was scared shitless and felt he had to do whatever they wanted to avoid going to jail.
 
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The below quotation was from a Supreme Court decision. Now, would you feel free to leave or feel that you were not coerced if some DEA agents told you to put your hands behind your back without a warrant or anything?


For example, a persons Fourth Amendment right to be free of unreasonable searches and seizures may be implicated where a person, under particular circumstances, does not feel free to leave or where consent to search is coerced.
 
J DUB said:
The below quotation was from a Supreme Court decision. Now, would you feel free to leave or feel that you were not coerced if some DEA agents told you to put your hands behind your back without a warrant or anything?


For example, a persons Fourth Amendment right to be free of unreasonable searches and seizures may be implicated where a person, under particular circumstances, does not feel free to leave or where consent to search is coerced.
After rereading the situation, I still dont think there was coercion involved. The guy didnt stand his ground about wanting a lawyer, he didnt ask them to leave, he stepped outside and began talking with them, they didnt handcuff him (only said to put his hands behind his back), and after an agent said they werent going to arrest him, he gave them access to his house and explicitly confessed to selling pot. The guy freaked out and didnt act in his own best interest, but thats not against the law.
 
So, what if he went to get groceries the next day? Could they have arrested him on the way there since he was out of his home? I just do not see how there could be probable cause for arrest but not for a search warrant. And the purpose of this arrest would be what...to bring him into an interrogation room and intimidate him into signing a consent to search form?
 
LOL too, sorry for asking so much but all of this is very interesting to me. Getting back to the fifth amendment, however, it will be quite interesting to see how the hearings go tomorrow. Perhaps we can get some legal commentary from you if anything halfway exciting happens.
 
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