Sirius-XM’s Mike Ferrin, making up Constitutional law as he goes along…
Driving along, minding my own business, on the way to picking up some cranberry juice and dishwasher detergent, I chanced to turn on channel 89 on Sirius-XM, where, by no special intent of mine, the baseball show “Power Alley,” with hosts Mike Ferrin and Jim Duquette (the latter a former and probably future big league general manager) was covering the A-Rod suspension story, currently the hottest scandal in sports. Ferrin is a baseball commentator, and he was railing about the statement of a lawyer, quoted on the show, that it was Alex Rodriquez’s refusal to testify at his hearing before a union arbitrator that sealed his doom and resulted in his season long suspension by Major League Baseball being upheld.
“What about his Fifth Amendment rights?” Ferrin was saying. “I am very disturbed by this. Rodriguez doesn’t have to testify! He has every right to refuse! I find it very disturbing that we are being told that a man lost his livelihood because he asserted his rights as an American! It’s just wrong!”
At this point, my car is weaving all over the road as I try to find my cell phone to call the show (I had left it at home) and scream. The Fifth Amendment, which among other things protects citizens against compelled testimony against themselves under threat of government action, has nothing to do with Alex Rodriquez and his arbitration hearing—-Mike Ferrin, you incompetent, blathering fool. The Fifth Amendment does not apply to private proceedings, of which a labor grievance arbitration is one. Rodriguez storming out of the hearing without testifying (Did I mention that this is what he did? He did.) that was specifically called to deal with his grievance against baseball was not an assertion of his Fifth Amendment rights, because this wasn’t a court. It was, however, certifiably stupid and an insult to the process and the arbitrator, and the fact that the drug-addled superstar immediately want on a local radio show and made his case without the impediment of being under oath (lying under oath in any kind of hearing is still perjury) sent a very clear message to all: Alex isn’t just full of ‘roids, he’s full of crap. This was what the lawyer whose comments Ferrin found so offensive was saying.
Now, it is true that in courts, where the Fifth Amendment does apply, a judge in a criminal trial will always instruct the jury not to regard the defendant’s refusal to testify in his or her own behalf as a sign of guilt, because the right not to incriminate oneself wouldn’t be much of a right if exercising it could be used to incriminate you. That does not mean, however, that in certain cases the refusal to testify isn’t obviously and legitimately suspicious, and that the rest of us aren’t free to draw reasonable conclusions. Yes, many innocent defendants are vulnerable on the stand because they are unsophisticated, or frightened, or young, or dumb, or inarticulate, and a skilled prosecutor might make them look guilty. They should not be suspect because they made the wise tactical decision to avoid a blistering cross-examination. When a defendant is a media-savvy celebrity, however, who knows how to speak, a decision not to testify under oath raises legitimate doubts about candor and credibility. A jury, as matter of law, cannot hold that against such a defendant, but I can (O.J.) and so can an arbitrator in a private proceeding, especially since the Fifth Amendment doesn’t apply.
You know why every time someone is threatened with job loss or slammed in the social media over something cruel or outrageous they wrote or said, their defenders say that the individual’s First Amendment rights are being violated? Ignorant loud-mouths in the media are the reason, because they routinely misstate what the Bill of Rights says and to what it applies, and do it from a position of apparent authority, after which their ignorance is absorbed by trusting listeners, and passed along to children, and some of those children become teachers, get elected as state representatives, or become sports pundits, and the cycle of stupidity goes on.
Anyone whose job requires them to get behind a microphone or a keyboard should be required to pass a basic citizenship test that includes a core comprehension of the Bill of Rights. There need not be trick questions on the quiz about, say, the Third Amendment or Eight Amendment, just key queries about the First, Second, Fourth, Fifth, and Sixth should do it. Until the potential pundit or commentator can get an acceptable grade, he or she should have their megaphone withheld, and no, this would not be a violation of their First Amendment rights!!!!!
Ethics Alarms 
Unfortunately, Jack, your clear explanation of the Fifth Amendment will likely not be read or understood by those who misuse it, can’t or won’t try to get their tiny minds around a pretty simple concept, or are unwilling to actually use it for cogent arguments rather than blather. Get a radio show of your own?
The facts as I see them are this: (1) A-Rod use(s)(d) steroids; (2) the proof was there; (3) he submitted to arbitration, then protested when it wasn’t going his way; (4) NO ONE is supporting him in this because (a) they know he used steroids; (b) he is an aging asshole baseball player with a ridiculously high salary, (c) no one likes him, because despite his (now questionable) achievements he is a jerk and an egotist; and (d) it is good for the Yankees to be rid of him.
Ignorant broadcasters (and not just in sports) who have millions (or thousands) listening to them, owe both their listeners and their sponsors both a general understanding of the topic, of the US Constitution (if they’re going to call it out), and the sport/issue/ he/she is addressing. Listeners think they do — morons though they may be — so there is honestly some importance in media mistakes, ignorance, and bias. (Obama was reelected, after all…)
SPONSORS TAKE NOTE: It really does you no good to have someone with an IQ of 80 and no understanding of either the legal system or Major League Baseball rules to be broadcasting a sports show about A-Rod and his current situation. I assume your host is as ignorant of other sports issues as he is about this one. Don’t you care? Or would you really rather have your talk show host muddy the waters so completely that everyone will continue to talk about what I think is a cut-and-dried issue? Probably the latter, you money-grubbing corporate thieves.
This of course applies to all the major media. Have a moron as a host and all you do is make more morons Listeners need to have good and accurate reporting, because for some reason (idiocy and laziness come to mind) they depend on the broadcaster to have both good information and not be a total ideologue. Good job there so far, guys!. And someday you’ll pay for it.
Frankly, I very much enjoy the fact that the arbitrator suspended him for a full season. Much as I hate the Yankees, they’re off the hook for his 2014 salary, and can deal with the rest later. I have noted that not one Yankee — player, manager, or coach — has come to his defense. He’s already made hundreds of millions of dollars, any hope for being in the Hall of Fame is blown (he deserves it), and if he had any moral underpinning other than narcissism, he’d take his money, go home, live extraordinarily well, and deal with the fact that baseball ensured his financial future but because of his own decision-making did not make him the legend he thought he ought to be. Too bad A-Rod. You deserve it.
PS Wouldn’t it be just great if someone could figure out how well Babe Ruth — drunk tho he was most of the time — would have done if he had access to steroids? I would love it if someone like Bill James could come up with stats on non-steroid users vs. those who have already admitted to using them. Some calculation of the impact. I think James is up to it, if he wanted to go through the hassle. And as far as I’m concerned, the Hall of Fame is blown — or should be divided into pre- and post-steroid eras…
I assume you were driving in VA? Otherwise, you can’t use your cell phone. If you have to go trial over this, remember to assert your 5th Amendment rights not to testify.
Find cell phone, pull over, use cell phone. If finding the cell phone caused me to crash, naturally, citing the text messaging case, I would have sued Sirius-XM. In good faith, of course.
Of course — suing Sirius would have been the responsible thing to do.
I have a similar reaction when people bitch about being denied their First Amendment right when they get banned for bad words on Xbox Live…
How on earth does Xbox Live handle your vocabulary? 🙂
Easy…
I don’t do multiplayer outside of known groups of friends.
I don’t like humanity as it is… What the hell makes you think I’m going to willingly subject myself to children who are rarely told “no” and whom I can’t hit when they call me a “faggot nigger” and talk about how they fucked my mom?
The ability to strike people via the internet would correct most (if not all) of the bad behavior witnessed on XBL.
There’s your million dollar idea — the virtual slap.
There is an image online that is of a man praying… The text says something to the effect of “Dear Lord, please grant me the ability to punch people via TCP/IP.”
In my time working as a camp counselor I often had to correct the kiddos who thought that language was appropriate. One little bastard and his buddy tried to one-up me, asked if I was too old to handle their edgy language. After a quick check for witnesses I unloaded a stream of invective on them that damn near turned their hair gray, then followed it up with a very calm “see, that’s not cool in public.” All in all, one of my better lessons, I think.
And you didn’t get fired?
That was the “quick check for witnesses”, I’d guess. Good job, Luke. Ex-Navy, by any chance?
It was, in fact, the point of the quick check for witnesses. Dragon, no, no veteran here, and at the time I wasn’t really old enough to be ex-anything. I would’ve been 18 or so, dealing with a couple of 13 year olds who had recently learned that if they swore and acted cocky it flustered most adults. I simply illustrated the point that anyone could do it.
As for COULD I have been fired- maybe, although they were being vulgar enough that I could have slid through it as well. It was a calculated risk- I wasn’t screaming at them, and they weren’t bad boys either- after our little object lesson I told them not to worry about me reporting their behavior, and they walked off a little wiser about assumign they’re the first ones to string those words together, and hopefully less likely to do so in earshot of all and sundry.
OK, ignorant curiosity here —
What’s the legal position of someone who is asked about criminal activity when under oath in a non-criminal proceeding?
That question might be relevant if any of the questions had involved potential violations of federal law about controlled substances.
Of course, whatever the answer, I’m certain our host is correct that the legal remedy is not to storm out and talk about it on a radio show.
If they are asked in a civil matter and answer, it can be used in a criminal trial – even if at the criminal trial they invoke their right to not answer that question, or even refuse to testify, because it was under oath.
The only exception to this is if the proceedings were sealed in some way — but even then you run the risk that they could become un-sealed. For example, some family court proceedings are sealed. This could apply to depositions as well — anytime that you are under oath and there is a court reporter present.