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Resist the Martha Stewart syndrome

Jun 18, 2008 Resist the Martha Stewart syndrome

Photo from website of U.S. District Court (W.D. Mi.).

Martha Stewart went to prison not for violating any securities laws, but on a conviction for lying to federal investigators about insider securities trading. What would have happened if she had asserted her Fifth Amendment right to remain silent with investigators? A thing of beauty would have happened, because it rarely helps a person’s criminal case to waive the Fifth (except for federal snitching, I mean debriefing, sessions, which should not be done without a qualified criminal defense lawyer and a written agreement governing the debriefing), and it even more rarely helps to waive the Fifth outside the presence of one’s lawyer. Convicted sniper co-defendant Lee Boyd Malvo comes to mind, who clearly would have been counseled by his Maryland lawyers to stay mum with the cops, but who spilled the beans to the cops after arriving in Virginia and probably receiving the red carpet treatment to any restaurant food, soda pop, DVD, or stereo system that suited his fancy.

Even too many suspected lawyers overlook the necessity of worshipping at the altar of the Fifth Amendment. One of them is David Safavian, whose liberty went into a tailspin when — as a General Services Administration official — he accepted a partial Scotland golf outing junket from his good friend and subsequently convicted Jack Abramoff, and then allegedly fudged to investigators the share of expenses for which he paid. It seems he spoke to investigators without a lawyer, at least in the beginning. What is the worst thing that might have happened if Safavian had stayed silent? Maybe he would have lost his job; maybe not. Still, he should not have been wagging his tongue without the assistance of a competent criminal defense lawyer.

Congratulations to Mr. Safavian for getting all his counts reversed on June 17 in his federal prosecution alleging concealing material facts and "making false statements in violation of 18 U.S.C. § 1001(a)(1) and one count of obstructing justice in violation of 18 U.S.C. § 1505." U.S. v. Safavian, ___ F.3d ___ (D.C. Cir. June 17, 2008). The written opinion does a better job than I can about how he won the reversal. Congratulations, also, on getting the sentence stayed pending appeal.

Had Mr. Safavian only remained silent, that would have been bliss. Jon Katz.

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