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In a strongly worded opinion, the 3rd Circuit has vacated a conspiracy charge in a drug case, owing to the prosecutor’s cross-examination of the defendant about his silence following his arrest.

The accused, a truck driver named Gathon Shannon, had invoked his 5th Amendment rights at the time of his arrest at a truck stop outside Pittsburgh.  The two men with whom he was alleged to have conspired to move sixteen kilograms of cocaine from Texas to Pennsylvania both pled guilty, and one cooperated against Shannon.  Nonetheless, Shannon chose to go to trial.  More rarely still, he also chose to take the stand.  On direct examination, he offered his own account of events, and explanations for the evidence the government had presented.

It was then, on cross-examination, that the prosecutor, engaged in what the 3rd Circuit calls “textbook examples of a Fifth Amendment violation.”  Apparently put out by the accused not having shared his planned testimony with the government, the prosecutor began questioning Shannon about his silence prior to trial, over the repeated objections of defense counsel, implying Shannon’s failure to explain himself to law enforcement earlier was itself suspicious.

This was so “patently beyond the bounds” set by Supreme Court precedent, the court wrote, and the defense counsel’s objections so clearly stated that “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 guarantee that no person shall be compelled in any criminal case to be a witness against himself is so fundamental to our system of government that the Supreme Court established the now-famous rule that a defendant must be informed upon arrest that he has the right to remain silent. Later, reviewing a prosecution under state law, the Court in Doyle v. Ohio announced that, because of the protections of the Fifth Amendment right to silence, it would be fundamentally unfair and a deprivation of due process to allow an arrested person’s silence to be used to impeach an explanation subsequently offered at trial.

Which is exactly what the prosecutor in this case did—attempt to throw Shannon’s explanation of events into question by using his earlier silence against him.

In one sense, United States v. Shannon is little more than a stern application of Supreme Court precedent.  It involves no deliberately withheld evidence, or suborning of perjury.  But seen in the broader context of Federal drug prosecutions, it is quite telling.  According to a report last year by Human Rights Watch on how federal prosecutors’ force guilty pleas from drug defendants threats of extreme sentencing for drug charges have become so effective in dissuading defendants from going to trial, that in the most recent year (2010) of available data 96.9% of them plead guilty rather than face the huge disproportion of, on average, over a decade between sentences imposed under plea bargains and those imposed at trial.

Gathon Shannon had the temerity to demand his day in court.  What’s more, he presented a defense sufficiently reasonable to cause the jury to deadlock.  They required an Allen instruction before they returned a guilty verdict.  Even then, they convicted on the conspiracy charge only, not possession.  And they found, for sentencing purposes, Shannon responsible for less than 500 grams of cocaine, when the government had charged 16 kilograms.  But, as the 3rd Circuit wrote,

The District Court disagreed…saying that “there was absolutely no evidentiary basis to support the jury’s finding of less than 500 grams. It therefore held him accountable for 16 kilograms of cocaine and sentenced him to 240 months’ imprisonment as well as six years of supervised release.

Is it any surprise, then, that the prosecutor, faced with the highly unusual task of having to prove his case, and faced with a man presenting an apparently plausible defense, should blow by the constitutional limits on his questioning of the accused?

The point isn’t Shannon’s guilt or innocence.  Indeed, in a footnote, the 3rd Circuit notes there was a good deal of evidence against him.  The point is that federal drug over-charging, prosecutorial threats, and over-sentencing produces an atmosphere in which violations of constitutional rights become inevitable.  The exception here isn’t the violation, but that the 3rd Circuit did something about it.

If you listen carefully, you can hear the prosecutor’s incredulity that a man facing the full investigative powers of the federal drug war is apparently able to explain himself:

Prosecutor: Did you ever direct anyone to bring that information to law enforcement?

Defense counsel: Your Honor, it’s a Fifth Amendment comment. I object. I would like a side-bar.

The Court: You’re overruled.





Defendant: No, no.

Prosecutor: You waited until you took the stand and then you told us about Simpson, Williams, and Middlebrooks, right?

Defendant. Yes, sir.

Defense counsel: I renew my objection, Your Honor.


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