Monday, December 9, 2013

ESPN's Heather Cox ambushes Jameis Winston to ask why he exercised his Fifth Amendment rights in the investigation of his alleged sexual assault

This is an important story that hardly anyone is talking about.

Jameis Winston, a redshirt Freshman quarterback for Florida State, is the leading candidate to win the Heisman Trophy. Last week, state prosecutors announced that no sexual assault charges would be filed against Mr. Winston stemming from a sexual encounter with a female student that occurred last year.

During the course of the police investigation in the case, almost certainly on the advice of counsel, Mr. Winston refused to be interviewed by police and did not answer questions from the media. It was Winston's right to refuse to be interviewed, but that didn't stop an ESPN reporter named Heather Cox from ambushing Winston after the game last Saturday to make him look guilty.

How did she do that? By asking why he exercised his Fifth Amendment rights.


To understand why what Cox did was so terribly offensive, you might need a short refresher course: the refusal to speak to police is a right that is sacrosanct to our freedoms. It is enshrined in the Fifth Amendment of the United States Constitution. This right wasn't designed to shelter the guilty but to protect the innocent, and that's what most people don't get. Too often the innocent think they can just tell the truth and the police will drop the charges. That's not how it works, as every criminal defense attorney will tell you. As the Supreme Court has stated, "one of the Fifth Amendment's basic functions is to protect innocent men who otherwise might be ensnared by ambiguous circumstances." In a criminal case, the burden remains on the prosecution to prove a defendant's guilt, and every citizen enjoys the right to refuse to provide information that may assist the prosecution in its efforts to accuse, charge, or convict him of a crime. So important is this right that Justice Felix Frankfurter described the Fifth Amendment as "one of the greatest landmarks in man's struggle to make himself civilized."

The average person almost certainly doesn't understand the critical importance of the right of the accused to remain silent, and our courts recognize that the average person will improperly draw negative inferences from it. If a prosecutor tries to make a person look guilty by mentioning it, it's prosecutorial misconduct. In jury trials, the judge instructs the jury that no inference whatsoever may be drawn from a witness' reliance on the Fifth Amendment.

ESPN's Heather Cox is a seasoned sports reporter and no dummy. Cox surely knows that the average person would infer that a refusal to talk to police is a sign of guilt. Yet, immediately after the Florida State Seminoles' blowout victory over the Duke Blue Devils in the ACC Championship on Saturday, Cox decided to play "gotcha" on national television with Mr. Winston who, despite his fame, is still just a teenager trying to cope with an explosion of attention.

Cox's questions focused almost entirely on the sexual assault investigation, and Winston did his best to answer them. But then, Cox ambushed the young man with the question she likely believed would expose him to the nation as guilty.

Cox asked the young man why he chose not to speak with authorities throughout the investigation: "How come you decided not to talk during the process and on Thursday?"

Cox knew damn well why Winston did not talk to the police. His attorney told him not to. She also knew damn well that when she ambushes an unprepared 19-year-old with that question, he isn't going to be able to provide an off-the-cuff tutorial about the Constitution that would to satisfy anyone. If Cox wanted a real answer to that question, she should have posed it to Winston's attorney.

Our guess is that a real answer isn't what she was after. We think she was looking for Winston to stumble around and look guilty so she could convict him in the court of last resort, the court of public opinion.

After Cox asked the question, Winston did the right thing, in fact, the only thing he could do. He walked away. It was the smartest play he made all day, and that's saying a lot.

What's disheartening is that Cox and Cox's bosses at ESPN probably think that insinuating Winston's guilt ambush-style, before a national audience, made for "good television."

It is well to note that Cox and ESPN would never dream of posing a similar question to the accuser. The police report in the Winston case reveals the following entry on February 18, 2013: "This case is being suspended at this time due to a lack of cooperation from the victim." To even consider asking the accuser why she didn't cooperate with police would be branded "victim blaming" by many. Yet it's somehow fair to ask a presumptively innocent young man why he exercised a right that many brave young men have died for.

Since we're on the subject of the police report, note that two eyewitnesses gave the police sworn statements -- their affidavits are contained in the police report. Read them for yourself. Their accounts are diametrically opposed to the accuser's story and, if true, reflect badly on the young woman who made the accusation.