Frankly, Mr. Marshall, I believe that you would be correct about how people in general perceive an invocation of the 5th. Nonetheless, factually innocent people can have very good reasons for invoking the right against self incrimination.

Mr. Greenfield, in a recent post [my apologies for having totally forgotten how to edit/modify a hyperlink -I’ll get around to fixing that] http://blog.simplejustice.us/2010/08/03/consciousness-of-guilt-and-other-fairy-tales.aspx, may have danced around an admission of the correctness of a stated position that Mr. Blago’s failure to testify will be viewed as an indicator of guilt. “Normal people project motivations on others all the time”

I suspect that the thought behind this particular post of Mr. Greenfields is attributable to this veritable tempest amongst all you teacups.

“It’s not fair to conclude that Blago is guilty because he won’t take the stand, but I think it is fair to strongly suspect he’s guilty after he promised to explain everything and yet when his opportunity came, refused to do so. It’s not his exercising his rights that is so suspicious; it is the bait-and-switch scam he’s been giving to the public since the beginning. It is one more reason not to trust him or what he says.”

Go ahead: explain how that statement says that Blago’s failure to take the stand is “proper evidence of guilt.” Then explain how Scott can question MY credibility.

Massachusetts, by the way (I am not a pseudo lawyer–I’m a Massachusetts “pseudo lawyer,” an active one, and Mass is one state that permits a rebuttable presumption of guilt from a witnesses invocation of the 5th Amendment. That seem reasonable to me. Now, I know Scott regards disagreeing with him as tantamount to blasphemy and per se evidence of idiocy, but you know what? He’s wrong.

I understand the legal fiction that refusing to take the stand in your own defense communicates nothing, but you know it does, I know it does, and I suspect even Scott knows it does, and we all know that no instruction would change that in a case like this. The jury wants to hear the defendant say he’s innocent, and especially when the defendant has been shouting to the skies that he’s innocent when he wasn’t under oath, they are going to be disappointed and suspicious if he refuses to do it when he is under oath. I raised the issue because it’s worth discussing, both with lawyers and non-lawyers.

The fact that I disagreed with Mr. Greenberg on one issue months ago—which he seems unable to put behind him—does not justify his making a ridiculous blanket condemnation accusing me of “miscomprehend the nature and purpose of such rights and choices.” He intentionally mischaracterized my post, in which I clearly and careful did NOT say that Blago’s failure to testify was “proper evidence of guilt”, any more than shifty eyes, and facial expressions during trial are “proper evidence of guilt.” But since Scott’s passion seems to be personal insults and professional denigration, I am not surprised. I’m just surprised that people like you, Mark, encourage him.

As for Blago, he’s a doofus, guilty or not.

That said, I’m pretty sure that if I were a lawyer, I wouldn’t want to put a loose cannon like Blago on the stand. And I know that if I were on trial, I wouldn’t want to take the stand. I don’t think very quickly on my feet, so I’m pretty sure a prosecutor could trick me into following him down the road to my destruction, and any attempt I made to correct the damage (“Uh, 18 questions ago when you asked me [whatever], my answer assumed you meant [this one thing] but with that last question I now realize you meant [this other thing]…”) would just make me look shifty, as would any attempt I made to slow down and answer each question with a lot of qualifications.

In Blago’s case, he’s pronounced his innocence to the media with some regularity, but that’s not the same as testifying and being subject to cross. Also, we have no idea what other areas of cross may exist that could be used to smear or impeach him but don’t relate to guilt.

My guess is that he’s a douchebag too, but in or out of court, don’t assume that the failure to testify has any significance as to guilt, whether as a rule of law or the dreaded “common sense.” It’s not necessarily true.

The guy seems to have no “off” switch, or even a filter of any kind.

Originally, I pointed out that Marshall seemed to be saying that it was ethical for jurors to use Blagojevich’s decision not to testify against him and for them to take notice of unsworn media reports, both of which sounded badly wrong to me. However, since he’s a lawyer and I’m not, I decided to limit myself to just a snarky reference, especially since this wasn’t the main point of my post. Somehow, the snark seems to have gotten lost in the editing.

No credible, competent lawyer would assume that Blago’s decision not to testify is properly evidence of guilt. To suggest so, as Marshall does, is idiotic. This isn’t an idea that should be promoted as even marginally credible, even by non-lawyers.

We hope to get beyond the lowest and worst understanding of how such choices are made. It’s bad enough that someone like Marshall has a voice on the internet, but there’s no reason to promote ignorance.