Law | Sports

March 17, 2005

One, Two, Three, Four -- Fifth!

Why that amendment isn't so great for baseball stars

Aaron Zamost

Rafael Palmeiro has a problem. So do Mark McGwire, Sammy Sosa, Frank Thomas, and Curt Schilling: They have all been subpoenaed to testify before the House Government Reform Committee, where they will be forced to answer questions regarding steroid use in Major League Baseball. If you've been paying attention to the news, you can probably guess how those answers are going to go. In his recently released book, Juiced : Wild Times, Rampant 'Roids, Smash Hits, and How Baseball Got Big, former MVP Jose Canseco names names of players he says used steroids, including Palmeiro, and now congressmen want answers. So what is the first step in problem-solving? The road to recovery begins with admitting that you have a problem. And Palmeiro has done that. Sort of.

David McIntosh and Michael Kantor, lawyers for Palmeiro, stated that their client "should not have to appear at a hearing prompted by scurrilous and wholly false allegations by a former player, and this committee should not dignify those allegations by requesting or compelling Mr. Palmeiro's attendance." (ESPN) McIntosh and Kantor also represent Thomas—their excuse for him is that his traveling "could have adverse circulatory effects that could substantially impede Mr. Thomas' recovery." (ESPN) In other words, they are using the clever "my leg hurts" legal defense, in one last desperate attempt to avoid possible public condemnation. (For the record, Thomas probably has been called to testify because of his anti-steroids position. We'll find out more when he does speak, as the committee has decided to grill him by video conference.)

McIntosh and Kantor's public comments are nothing more than face-saving legal posturing, and they must know that, but this sort of testimonial two-step is pretty much the best they can do, if they think or know that Palmeiro's testimony might reveal he used steroids. But Palmeiro's biggest problem is not that he could face criminal charges; it's that the rules of evidence and judicial procedure do not apply in the court of public opinion.

If Palmeiro, or any of the other players, has done nothing wrong (no personal steroid use, no associations with steroid use, etc.), then he has nothing to worry about—he can't be charged with any crimes related to illegal drugs, nor crimes related to their testimony, like perjury or contempt. But if any player has used performance-enhancing drugs, he has only four options: admit to such use, and face possible criminal charges; lie under oath, and face possible criminal charges for perjury; refuse to show up, be cited for contempt, and face possible jail time (Slate); or take the Fifth Amendment, and admit to nothing.

The Fifth Amendment sounds like a great deal: never admit to anything, and no one can touch you legally. The Fifth Amendment privilege is a protection against self-incrimination; it prohibits the government from compelling a person to testify against himself. For example, if Palmeiro used steroids, he could never be forced to admit that fact under oath, since that statement couldn't only be used to charge him with a crime, but could also be admitted as evidence in a trial to prove that he actually committed that crime.

But there's a catch: While the taking the Fifth Amendment may save these players from criminal liability, it isn't going to help them with the fans. No one will take any player seriously if he refuses to answer a question under oath, but later tells the media that he never used steroids. These players can't win once they show up at the hearing, so they desperately don't want to testify. If they suffer in the public eye for concocting lame excuses for not going to Washington, so be it—it would be much worse than to admit wrongdoing, or be forced to tap-dance around such admissions.

That's why Sammy Sosa "politely declines" an invitation to speak, and Palmeiro's lawyers claim that "to require that he come to answer baseless charges is unfair." (If the charges are baseless, wouldn't Palmeiro jump at the opportunity to profess his innocence?) Of the players and former players being called to testify, only one—Canseco—has messed up his reputation enough that taking the Fifth won't hurt him. And he has decided to take it (ESPN).

Unfortunately for the rest of these players, the privilege will only protect them in court. Public opinion doesn't follow the rules of law. While a prosecutor may not refer to a defendant's decision to take the Fifth, or his refusal to testify at trial, there is no rule that prevents fans from speculating about, and judging, a player's silence.

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Article by Aaron Zamost

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