Obama Justice Department receives blow in 5th Amendment rights case against self-incrimination

Gathon Dudley Shannon was on the stand defending himself against federal drug charges stemming from an investigation covering Pennsylvania's Beaver and Washington counties when the prosecutor crossed a constitutional line.

During cross-examination, the prosecutor asked Shannon why he waited until his trial to tell a version of events that would clear him instead of talking to the police after his arrest. Despite an objection by Shannon's attorney that the question violated his client's right against self-incrimination under the Fifth Amendment, the federal trial judge allowed it. Shannon was convicted.

As fans of police shows hear often, the "right to remain silent'' upon arrest is a key part of the Miranda warning police are required to give - a right safeguarded by the Fifth Amendment that the federal government's action threatened to turn on its head.

But in a victory for all of us, on Aug. 8 the U.S. Third Circuit Court of Appeals delivered a stinging rebuke of the government's action and ordered a new trial for Shannon. In addition to preserving our Fifth Amendment rights, the case is also significant because it shows how President Obama and his Justice Department continue attempts to undermine our constitutional rights.

Under Obama, the National Security Agency is conducting widespread phone surveillance. Also under President Obama, the National Defense Authorization Act was broadened to allow authorities to indefinitely detain a U.S. citizen on U.S. soil without charge or trial if they are merely suspected of supporting al-Qaeda, the Taliban or associated forces.

The tide is starting to turn, however. Earlier this year a federal judge in Washington D.C. found the NSA's bulk data collection program was likely unconstitutional.

We are blessed in our country to have a strong judicial system that allows citizens to challenge the government and push back when our fundamental rights are challenged. This is what our Founding Fathers fought for. The Shannon case is yet another example of the important role the courts play in protecting against over-reaching by the executive branch.

The Third Circuit's decision in Shannon's case admonished Obama and Attorney General Eric Holder's prosecuting and appellate attorneys throughout its opinion, noting the prosecutor's questions were "indeed textbook examples of a Fifth Amendment violation.

In one part of its opinion discussing whether the Fifth Amendment issue was properly preserved for appeal, the Third Circuit court notes, "Given that background, it beggars belief to hear the government now argue that the Fifth Amendment issue was not preserved for review. It was preserved, and the argument to the contrary actually borders on frivolous.

The Third Circuit court noted in another section that, "It is frankly painful to watch the government's labored wresting of selected sentences from Shannon's [i.e. the Defendant] testimony in an effort to create an impression which a straightforward reading of the record refutes.

We are left to agree with Shannon that the government's arguments are nothing more than a 'post hoc attempt to salvage an unsalvageable mistake made by the trial prosecutor.'" The decision further states, "The government's second argument - that "most of the prosecutor's questions probed Shannon's pre-arrest failure to call police" - is also a stretch of the record.

This case also serves as a reminder of the importance of retaining a skilled and knowledgeable attorney. While the trial court judge clearly did not understand the Fifth Amendment protections, Shannon's defense attorney preserved his client's right to appeal by objecting and getting it on the record.

At Scaringi Law, we pride ourselves in providing the kind of vigorous defense you need when it comes to protecting your rights. If you are facing criminal charges, call us today and see first-hand the difference an experienced attorney can make.