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'Pleading the Fifth' not the same as admitting to criminal act

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A reference made during a trial to “pleading the Fifth” is not an admission of a crime and, therefore, by itself is not grounds for a mistrial, the Indiana Court of Appeals has ruled.

In Roger Jay Piatek, M.D. and The Piatek Institute v. Shairon Beale, 49A04-1209-CT-448, the Indiana Court of Appeals affirmed the trial court’s denial of Roger Jay Piatek’s motion for a mistrial. It found the trial court’s admonition was sufficient to cure any prejudice from Shairon Beale’s reference to Piatek pleading the Fifth Amendment.

Beale filed a medical malpractice complaint against Piatek after she developed toxic epidermal necrolysis that was believed to have been caused by the medications Piatek prescribed for weight loss.

Piatek’s motion for a mistrial came after an exchange between Piatek and Beale’s counsel in the courtroom. Beale’s counsel asked Piatek a series of questions regarding I.C. 35-48-3-11 which provides for the use of Schedule III or Schedule IV controlled substances for the purposes of weight reduction or to control obesity.

Piatek’s counsel objected, saying the plaintiff’s counsel should not be asking him questions of law. At that point, Beale’s counsel, contending she was not asking Piatek to practice law, turned her attention to the Request for Admission and asked Piatek if he remembered pleading the Fifth.

As part of a pre-trial Request for Admission, Piatek was asked to admit he violated I.C. 35-48-3-11 when he prescribed Phentermine to Beale. The doctor responded “Defendants object to this Request on Fifth Amendment grounds.”

Piatek’s counsel requested a mistrial.

After hearing arguments of counsel and over the objection of Piatek’s counsel, the trial court admonished the jury that Piatek “has never pleaded the Fifth in this case and is not pleading the Fifth in this case. So disregard the question and the inference that could be made from that question.”

The COA declined to hold that a generic reference to “pleading the Fifth” subjected Piatek to greater prejudice.

The question from Beale’s counsel about whether Piatek remembered pleading the Fifth did not assert facts not in evidence. Nor did the counsel’s statement indicate the doctor had engaged in criminal activity.

“We acknowledge a reference to ‘pleading the Fifth’ suggests some underlying criminal activity and may be prejudicial,” Judge Melissa May wrote for the court. “But ‘pleading the Fifth”’ is not itself a criminal act; it is an assertion of a constitutional protection. … The trial court’s admonition to Beale’s jury was adequate.”

 
 

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  1. Good riddance to this dangerous activist judge

  2. What is the one thing the Hoosier legal status quo hates more than a whistleblower? A lawyer whistleblower taking on the system man to man. That must never be rewarded, must always, always, always be punished, lest the whole rotten tree be felled.

  3. I want to post this to keep this tread alive and hope more of David's former clients might come forward. In my case, this coward of a man represented me from June 2014 for a couple of months before I fired him. I knew something was wrong when he blatantly lied about what he had advised me in my contentious and unfortunate divorce trial. His impact on the proceedings cast a very long shadow and continues to impact me after a lengthy 19 month divorce. I would join a class action suit.

  4. The dispute in LB Indiana regarding lake front property rights is typical of most beach communities along our Great Lakes. Simply put, communication to non owners when visiting the lakefront would be beneficial. The Great Lakes are designated navigational waters (including shorelines). The high-water mark signifies the area one is able to navigate. This means you can walk, run, skip, etc. along the shores. You can't however loiter, camp, sunbath in front of someones property. Informational signs may be helpful to owners and visitors. Our Great Lakes are a treasure that should be enjoyed by all. PS We should all be concerned that the Long Beach, Indiana community is on septic systems.

  5. Dear Fan, let me help you correct the title to your post. "ACLU is [Left] most of the time" will render it accurate. Just google it if you doubt that I am, err, "right" about this: "By the mid-1930s, Roger Nash Baldwin had carved out a well-established reputation as America’s foremost civil libertarian. He was, at the same time, one of the nation’s leading figures in left-of-center circles. Founder and long time director of the American Civil Liberties Union, Baldwin was a firm Popular Fronter who believed that forces on the left side of the political spectrum should unite to ward off the threat posed by right-wing aggressors and to advance progressive causes. Baldwin’s expansive civil liberties perspective, coupled with his determined belief in the need for sweeping socioeconomic change, sometimes resulted in contradictory and controversial pronouncements. That made him something of a lightning rod for those who painted the ACLU with a red brush." http://www.harvardsquarelibrary.org/biographies/roger-baldwin-2/ "[George Soros underwrites the ACLU' which It supports open borders, has rushed to the defense of suspected terrorists and their abettors, and appointed former New Left terrorist Bernardine Dohrn to its Advisory Board." http://www.discoverthenetworks.org/viewSubCategory.asp?id=1237 "The creation of non-profit law firms ushered in an era of progressive public interest firms modeled after already established like the National Association for the Advancement of Colored People ("NAACP") and the American Civil Liberties Union ("ACLU") to advance progressive causes from the environmental protection to consumer advocacy." https://en.wikipedia.org/wiki/Cause_lawyering

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