5th Amendment gives the accused in a criminal investigation the right to remain silent.
And, the U.S. Supreme Court required a warning about the right to remain silent and the right to an attorney in custodial interrogations by law enforcement.
Let's look, against the background of this indisputable law, at the criminal conviction - and recent denial of parole - of Sidney Moore, in South Carolina.
A young woman, Heather Elvis, has disappeared in South Carolina. The police claim that the last location of her cell phone shows at the abandoned Peachtree Boat Landing in Socastee, South Carolina, on December 18, 2013 where her car was also discovered.
She could have left the state for her own reasons, she could drown without anybody's bad will, as an accident, she could have succumbed to sharks or alligators, there are a lot of both in South Carolina.
Why her car was where it was found - nobody knows.
But, with a public outcry and pressure, the police had to deliver a culprit, or culprits in Heather Elvis' disappearance.
No body has ever been found.
There is no evidence that Heather Elvis was killed, or that she is dead.
But, the police believes she is dead - and tried hard to prove it to appease public pressure.
They arrested a married couple, Sidney and Tammy Moore, parents of 3 young children, and charged them with kidnapping and murder of Heather Elvis.
That was in February of 2014.
In 2016, prosecutors dropped the murder charges.
Prosecutors tried to proceed for kidnapping charges against both spouses before the same judge - it is easy to convict this way, one case feeding the other in the same trial.
The case went up to the state Supreme Court, which directed separate trials under two separate judges.
Why were Sidney Moore and his wife Tammy Moore suspects in the police investigation?
Because supposedly Heather Moore was a lover of the husband, Sidney Moore, who was married with 3 children to Tammy Moore.
The wife supposedly found out and viciously exposed the affair in texts online.
The case went to a jury trial against Sidney Moore only on kidnapping charges, and the jury were unable to come up with a unanimous verdict, there was a mistrial announced.
Yet, curiously, Sidney Moore was, indeed, convicted - and sentenced to 10 years in prison.
You know for what? For "obstruction of justice".
What evidence persuaded the jury to convict?
Now, criminal law in South Carolina, is statutory, and the jury had to find proof beyond the reasonable doubt in what prosecutors provided for them as to the following elements:
Since Sidney Moore is widely reported to have been convicted for "stalling" the police investigation into disappearance of Heather Elvis, he is charged under Section 16-9-340, Subsection (2) - "destroy, impede, or attempt to obstruct or impede the administration of justice in any court".
Remember, beyond the reasonable doubt, on all elements of the crime.
Now, since Sidney Moore was one of the two prime suspects (the married lover of the disappeared person) in a criminal investigation into a murder, a death penalty crime in South Carolina, he not only had a 5th Amendment right to remain silent, but that right was a life or death right, literally, to be treated seriously by the police.
Yet, Sidney Moore, while being interrogated, in custody, by a several law enforcement officers, one after another, he was never given a Miranda warning.
And, when his defense attorney raised that issue at trial, you know what was the response by the "Picasso-painting" prosecutor? The police did not have to give him the Miranda warning because at that stage "it was not even a crime", it was a missing person investigation:
"Not even a crime".
Let's go back to what Sidney Moore was convicted - and sentenced to 10 years in prison for,
"obstruction of justice":
It is an "interference into a JUDICIAL process", specifically, an "intimidation of court officials, jurors and witnesses. It is unlawful for a person, by threat or force to destroy, impede, or attempt to obstruct or impede the administration of justice in any court".
What administration of justice - if the prosecutor herself, while "painting a Picasso" picture for the jurors, admitted that Miranda warning was not given to a capital-murder suspect because at that time "it was not a crime"?
If it was not a crime, Moorer could not be even CHARGED with obstruction of justice - because that charge presupposes interference with a JUDICIAL process, very specifically, in the text of the statute, to be proven beyond the reasonable doubt.
If the charge was a "common law obstruction of justice" (which supposedly exists in South Carolina, too, State v. Love, 275 S.C. 55, 61, 271 S.E.2d 110, 113 (1980) (former magistrate's procurement of invalid driver's license for an individual and promise to fix traffic records and “fix the prosecution” against the individual for $5,500 was sufficient evidence to establish common-law obstruction of justice), cert. denied, 449 U.S. 901, 101 S.Ct. 272, 66 L.Ed.2d 131 (1980), then the entire criminal justice system in South Carolina is unconstitutional because what constitutes a crime must be codified under the separation of powers and fair notice doctrines.
But even then, the common law "obstruction of justice" case must be related to prosecution of a crime in court - not to a missing person investigation which, at the stage when Moorer's statements were made to the police, "was not a crime", as prosecutor herself admitted in order to derail the lack of Miranda warning challenge.
So, there is no body and no proof Heather Elvis died.
The murder charges were dropped by prosecutors themselves.
Kidnapping charges resulted in a mistrial against Sidney Moore and were not retried.
Kidnapping charges against Tammy Moore, brought in 2014, were not even put up for trial in 4 years, which is in itself a constitutional violation, anybody has a right to a speedy trial.
But, the public and the family of Heather Moore demanded "justice", meaning, a conviction.
And a conviction was produced - by ringing a charge that could not be brought because, by the prosecutor's own admission, at the time when Sidney Moorer supposedly "stalled the police investigation", it was "not a crime", but a missing person investigation.
So, the obstruction of justice charge - applicable exclusively to interference with a judicial process - did not apply.
But, prosecutors still obtained a conviction, and a 10-year sentence, and appeased the family and the public - by
- painting a "Picasso picture", as a family member of Heather Elvis admitted;
- having hearsay testimony about cell towers and cell phones of Sidney Moore and Heather Elvis, in violation of the 6th Amendment Confrontation Clause; and
- by presenting an immunized testimony of a person charged with another crime and supplying some "evidence" to the prosecutors in exchange for a plea bargain - a person who, despite stalling what was already a crime investigation, was never charged with purposefully "preventing, obstructing, impeding, or hindering the administration of justice":
Of course, the press claimed that Sidney Moorer's own attorney admitted that Moorer lied to the police.
How did he lie?
So, the "dishonesty and deceit" that a man is convicted for and sent to 10 years to prison for is:
being confronted with a potential capital murder investigation, and not being advised of his right to remain silent, as the police had a duty to do, he withheld information from the police ("lied"), or remained silent - which was his 5th Amendment right in the first place.
A guy is convicted for not giving to the police information in a capital murder investigation that could potentially put him on a death row.
And recently, he was denied parole for the same reason.
He was denied parole for not telling the police what happened with Heather Elvis, while there are still pending kidnapping charges against him.
Parole was denied for not talking to the police about what happened to Heather Elvis, even though kidnapping charges against him are still pending and were scheduled for trial this past October, 2018, so he had an iron-clad 5th Amendment right to remain silent on the issue.
On October 1, 2018, the top state court denied the prosecution their request to try Sidney and Tammy Moore together, to facilitate a kidnapping conviction.
In retaliation, Moore was denied parole - for not waiving his 5th Amendment right in a kidnapping case that can lead to a capital murder case.
Now, the public generally has a very difficult time with the concept of the presumption of innocence and the right to remain silent protected by the 5th Amendment of the U.S. Constitution.
I see that all the time when yet another criminal charge is posted in an news media article on the Internet and on Facebook.
Overwhelmingly, comments presume guilt and demand immediate punishment, often by torture and death.
This man is accused of kidnapping of Heather Elvis and is presumed innocent of that crime.
He was tried for that crime in 2016 and the jury could not come to a unanimous verdict.
The prosecution has chosen, since 2016, for 2 years, not to retry him.
He has a right to remain silent as to anything in relation to that criminal charge.
Yet, he is denied parole, conveniently, because he did waive his 5th Amendment.
He was PUNISHED by prolonged incarceration to begin with for not talking to the police - which was his right under the 5th Amendment.
And, he was punished yet again, by the board of parole, for not waiving the 5th Amendment when criminal kidnapping proceedings were pending against him.
There is no evidence what happened to Heather Elvis and whether she is now dead or alive.
And, Sidney Moore may or may not have that information.
But, as eager as the public, police and prosecution is to blame Sidney Moore for not disclosing that information, he is protected by law in not doing it.
And, convicting him for doing what the law allows him to do is unconstitutional.
You may hate Sidney Moore, but, your personal feelings notwithstanding, there is no evidence he kidnapped or murdered Heather Elvis, and he has a right not to incriminate himself given to him by the U.S. Constitution, and no matter what "Picassos" are painted by the prosecution, the prosecution cannot change that constitutional right - in fact, prosecutors are sworn to protect it and be fair rather than trying to score convictions.
Sidney Moore was protected by the 5th Amendment and could not be charged for not talking to the police or for not giving the police information in a potential kidnapping and death penalty murder case against him.
Sidney Moore could not be charged, much less convicted, for obstruction of justice at the time when, by prosecutor's own admission, "it was not a crime", and certainly not an interference with a judicial process.
And, Sidney Moore most certainly could not be denied parole for not waiving his 5th Amendment right to remain silent and not to incriminate himself during a pending kidnapping criminal proceedings.
The rule of law means - the government following the set steps to take the person's property, liberty or life.
These steps were grossly violated here.
The 5th Amendment right to remain silent and not to incriminate himself.
The 6th Amendment Confrontation Clause.
The 14th Amendment Due Process Clause to be charged and prosecuted for a crime following due process, and not to have his liberty taken without a due process of law.
Sidney Moore's conviction is a wrongful conviction.
The State of South Carolina, by "painting a Picasso" to the jury, invented an end run around the 5th, 6th and 14th Amendments and a way to use wrongful convictions on fabricated wrongful charges to make people waive their 5th Amendment right to remain silent in a pending charge.
A young girl is missing.
And, her family is wondering where she is and is grieving.
But, that is not a good reason for wrongful convictions without due process.
Courts of law were established to replace the notoriously unfair private blood vendettas - and yet, a blood vendetta it is with Sidney Moore's conviction, and nothing more.
If you think you support such a wrongful conviction because you "believe", because Sidney Moore did not talk to police or was "evasive", he "knows something", and must be convicted for "something" for not disclosing that "something", think again.
You can be charged this way and convicted this way, too.
When the government cuts corners around the U.S. Constitution (which sets an absolute minimum, not maximum of procedural protections for everybody against government's prosecutions), it sets precedents not just against Sidney Moore, but against all of us, too.
Sidney Moore's conviction should be overturned.