By refusing to testify on the basis of the right to avoid self-incrimination, they effectively admitted on the court record that they'd committed a crime. At which point, the judge can see the smoke, and though he may not be allowed to investigate the ignition source he can certainly point the DOJ in the general direction of the fire.
I'm not a US lawyer, or even from the US. But surely, if courts can draw adverse inferences from someone 'taking the fifth', that makes it a pretty pointless right, no? It's not much of a right to avoid self-incrimination if exercising it incriminates yourself. Can someone from the US clarify whether that's really how it's interpreted?
I am not a lawyer this is not legal advice, etc etc, but there are other examples in civil cases of where this kind of thing can be used against you. I have a lawyer friend who does personal injury cases, and one of the first things lawyers do in those cases is send spoilation letters to the insurance companies demanding that they preserve any evidence. Absent this, it's common practice for insurance companies to have totaled vehicles destroyed, for example. If they destroy any evidence after receiving a spoilation letter, then in the lawsuit the jury will be instructed to assume that the destroyed evidence showed things in as favorable a light as possible to the other party.
"Even if their refusal was based on the Fifth Amendment privilege against self-incrimination, the Court still may draw adverse inferences against them in this civil proceeding. Baxter v. Palmigiano, 425 U.S. 308, 318 (1976)"
The way I read it (again, not a lawyer) is that you can't convict someone based on their refusal to testify, but this isn't a criminal proceeding. In civil matters the rules are different.
So the fact that the lawyers are taking the Fifth can reasonably be used as evidence that some of the specific claims and assertions already made are materially fraudulent.
Taking the Fifth in your own lawsuit must be quite startling for a judge to behold. One can imagine possible sound reasons why a defendant might take the Fifth or the Sixth (right to consult an attorney, i.e. you caught me off guard but I might answer your questions later), but that is not pretty either, in a civil case.
"In effect, the responsible lawyers for a law firm conducting litigation before a court have refused to explain that litigation to the court on the grounds that doing so could expose them to criminal prosecution."
I'm not a lawyer, but what I took from that was that in this instance the Prenda Law guys were not being asked questions with relation to their role in the actual scheme. They were actually being asked questions in relation to their role as 'officers of the court' ie. as the lawyers for themselves that were involved in the scheme.
Oh what a tangled web they weaved...
Although lawers mid-trial taking the fifth may be different.
The situation is quite different in a trial. If you are summoned to appear in court, you must appear. If you are asked any questions, you must answer them (or assert fifth amendment rights explicitly in a refusal to answer, like the Prenda clowns did).
Also, in the order leading to the Prenda attorneys pleading the 5th, the judge basically said "I have drawn these inferences. Tell me why I'm wrong.", and they declined to do so (pleading the 5th). According to Popehat's coverage, that seems to leave him pretty free to stick with the initial inferences.
IANAL and all that.
