Pleading the Fifth

An Amendment Linking Fine
Americans & Notorious Hacks

It all may have started with the number of fingers. To write a full post about a particularly random number between, say 1 to 10, is, of course, a fool’s run. But, as your uncle Bob once said, after having a few at the local water hole, ‘life ain’t worthy without taking chances,’ while tossing you up in the air. We’re taking the fifth and running with it.
Constitutionally, as you may remember, the expression is often associated with tax dodgers, counselor-instructed crime bosses and your garden-variety white-collar crook. Historically, though, it may have had its defining moment during the 1950s, with Senator Joseph McCarthy-led infamous witch hunt of many fine American artists and intellectuals and their supposedly illegal activities.
For those who need a refresher, the Fifth is the amendment of the U.S. Constitution designed to protect the accused of self-incrimination, and of being ‘deprived of life, liberty, or property, without due process of law.’ It’s often associated with the Miranda Warning, given by the police to criminal suspects, before they can be interrogated in the presence of an attorney.
Such association is not casual and stems from the 1966 case of Ernesto Miranda, who was arrested for stealing $8, and told the cops he’d also kidnapped and raped a woman a few days earlier. He was neither told that he could have a lawyer present during questioning, nor that he had the right to remain silent.
Miranda was promptly convicted based on his confession and sentenced to twenty years in prison. But, as his lawyers appealed, the Supreme Court eventually ruled that his self-incriminating statement was not admissible in court and that law enforcement officials must establish safeguards to protect this right of the individual being questioned. Thus the Miranda ruling.
As for McCarthy, surprise surprise, he succumbed to its own paranoia, was censured by the Senate in 1954, and died of alcohol-related hepatitis three years later. The damage he caused was already irreversible to many movie professionals, though, as Hollywood slammed its doors to them, helped by secret files that the likes of Ronald Reagan and others compiled on them.

The episode, however sad, became emblematic in the way it showed the Constitution as a defense mechanism to protect citizens against a dangerous nut in power such as McCarthy, even when it’s not as swift as needed. The same about the Miranda case, which may serve (more)
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a symbol of what, at least in the letter of the law, is the assumption that everyone has the a right to a fair trial.
What Judge Earl Warren stated in his now famous ruling is often the only line separating a civilized society, that recognizes the individual’s right to self determination, and a police state, which would otherwise run rampant in its zeal of enforce the law. Despite legal conditions allowing it to be ignored, for the most part, the rule stands.
‘Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed.’
Some will still argue that once someone invokes ‘the Fifth,’ they must be guilty of something. They’re usually talking about somebody else, though, and it’s a whole different perspective if, heaven forbids, it’d happen to any of them. Unfortunately, such misperception at times compounds and aggravates the cases when an individual’s rights are violated and no one else knows it.
Also, for conspiracy buffs everywhere, it’s almost devilish to mention that Judge Warren led the commission who determined that President John F. Kennedy was assassinated by a single murderer, Lee Harvey Oswald, in what was, believe it or not, the sole official investigation of the case, back in 1964. Ironically, Oswald may not have heard the Miranda Rights recited to him.

A sample of cases of people who ‘took the Fifth,’ to protect themselves from being forced to participate in Double Jeopardy, no, sorry, to have what the show is named after, to legally self-incriminate themselves twice, is long and odd. Some of those easily recognizable seemed to have done it so to delay the inevitable. Others did it for fear or principle, or both.
So, notorious lobbyist Jack Abramoff, who made millions of dollars making sure the special interest forces who’d hired him would benefit from Congressional measures, took the Fifth and still went to jail. In all fairness, he did his time and now is an advocate for fairer and more transparent laws about money and politics. We wish him good luck with all of that, of course.
Also, exercising their right to remain silent, but still going to jail, were G. Gordon Liddy, for his wretched role in the Watergate scandal; Bernard Kerik, former NYC Police Commissioner, and Rudolf Giuliani’s protegee, on charges of corruption; and Ken Lay, CEO of the once spectacularly profitable Enron, who died in jail before being sentenced for defrauding thousands. They all share the ignominy of never having to reimburse in any way those they hurt.
Another infamous group convicted of crimes against the American people, had powerful friends and never went to jail: Colonel Oliver North, who helped President Reagan illegally arm the opposition to the Nicaraguan government; Linda Tripp, who betrayed her best friend Monica Lewinsky and became a footnote of the Clinton years; and Ari Fleischer, President George W.’s press secretary, for helping to expose a CIA agent. And the depressing, some would say, inevitable, case of O.J. Simpson, of course.
The list gets much better, in a bitter-sweet way, when you include those done wrong by McCarthy. Writers Lillian Hellman, Dashiell Hammett and Dorothy Parker, singer and actor Paul Robeson, arguably the greatest American to have ever been denied reentry in the U.S., lyricist Yip Harburg and songwriter Pete Seeger, among many, were all backlisted and spent years of their lives trying to clear their names.
Robeson, Arthur Miller and others rightly framed the issue as a political witch hunt of communists and perceived sympathizers of the U.S.’s Cold War foe, the Soviet Union, to great damage to their own freedom and reputation. The fearless baritone even managed to call his accusers for what they really were: ‘unamericans,’ which of course, is an impossibly fictitious label of their own creation.
Since the Fifth was never meant to be a tool for political or penalty-dodging statement, its use involved some very colorful characters of American life, circa late 20th century, such as boxing promoter Don King, a wealthy family heir, Patty Hearst, who briefly joined a fringe terrorist group that had kidnapped her, and then was pardoned, and beloved songwriter Willie Nelson.

The issue of individual freedom is very much in evidence, as ever, through the contemporary debate about Internet privacy. No wonder then that Google, itself not a bastion of personal freedom when it comes to online identity, marked one Fourth of July with a doodle about Woody Guthrie, the Dust Bowl Troubadour, whose 106 years will be celebrated next week, on the 14th. Want another irony? the giant search engine dedicated the doodle to ‘Internet freedom.’
He wrote a passionate defense of Seeger, his friend and fellow legend in the fight for civil rights, when the McCarthy commission called on him in 1955. Seeger’s own unapologetic testimony is another statement to the courage of individuals in the face of unfair accusations by the powerful and the undemocratic.
Because the relevant link connecting some of these Americans is the fact that, even though they had to invoke the right to remain silent at that point, their lives as a whole were never about silencing before oppression. On the contrary, their work is suffused with that human urge to express outrage and rebel against what’s morally unjust.
Guthrie, who died of Huntington’s disease at 55, in 1967, had a healthy attitude towards the game of political labeling: left wing, chicken wing, was one of his mottos. Seeger, was no spring chicken himself when he passed away at 94, in 2014, still kicking to the very last breath. His spirit lives on, and so his friend’s.
That’ll be also a reminder of why we still care to celebrate the U.S. Constitution, as this time holds similar challenges to personal liberty, freedom of expression, and respect to diversity faced by those alive in the 1950s. Except that we’re luckier, for despite paying dearly, they’ve still managed to show generations ahead (that means, us) how and why one should do it. Now it’s our time to show it too.

(*) Originally published on July 5, 2012.

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