Page 38 of The Right to Remain

“My situation being what?”

“You haven’t been charged with a crime, but you’re not just another witness the prosecutor has subpoenaed to testify. You’re under suspicion.”

“But why?” he asked, exasperated. “I really don’t get it. Why amIunder suspicion for anything?”

“At this point, I have no idea,” said Jack. “But I suspect it’s because there’s more you’re not telling me. Which only makes me more firm in the advice I’m about to give you.”

“And your advice is what?”

“When the prosecutor calls you into the grand jury room to testify, I want you to state your name and address for the record and give the following answer to any additional questions: ‘Under the advice of legal counsel, I decline to answer based on my right to remain silent under the Fifth Amendment of the United States Constitution.’”

“That’s crazy. Why would I take the Fifth? I just told you I didn’t have anything to do with Owen Pollard’s death.”

“That’s not the point. Guilty or innocent, no one under suspicion of committing a crime wins a battle with a prosecutor in a grand jury room. There’s no judge. There’s no defense lawyer to object to unfair questions. The prosecutor runs the show. Take the Fifth.”

Again, Elliott paused to think. “I can’t do that.”

“Why not?”

Elliott took a deep breath. “How many people are on this grand jury?”

“Twenty-three.”

“Hypothetically, let’s say we pull twenty-three people off the street at random. A true cross section of society. What do you think the odds are that at least one of those people would think I’m a criminal just because I’m trans?”

Jack took his point. “Prejudice is very real.”

“Yes, I can tell you firsthand that it is. And now you want me to reinforce that prejudice by asserting my right against self-incrimination.”

“Taking the Fifth is not an admission of guilt. The right to remain silent goes hand-in-glove with the government’s burden to prove guilt beyond a reasonable doubt.”

“Oh, come on. Anyone who has ever watched an episode ofLaw & Orderknows that when witnesses take the Fifth, it’s because the answer couldincriminatethem. Look, I don’t go around telling everyone I’m a trans man. I’ve told people to their face it’s none of their business. But if someone asks if I’m trans, I have never—and willnever—respond by saying, ‘I refuse to answer on grounds that I might incriminate myself.’”

Jack would have liked to give Elliott the assurance that the prosecutor would never ask such a personal and irrelevant question, but there were very few guardrails on what a prosecutor could ask in a grand jury room.

“Elliott, I respect what you’re saying. But testifying before a grand jury is a stressful situation, and the prosecutor has total control. It’s impossible for anyone to proceed on a question-by-question basis and parse out when you might incriminate yourself by answering and when you won’t. Do yourself a favor. Embrace your constitutional rights and take the Fifth to everything.”

“I have a better plan. I’ve done nothing wrong. I say I take the Fifth tonothing.”

“That’s foolish and contrary to my best advice.”

“I understand your advice. I reject it. Where does that leave us?”

His decision seemed firm, and despite the risk, Jack respected thathis client was standing on a principle that Jack had never encountered before, at least not in this context. “We have a lot of work to do before Friday,” said Jack.

“When do we start?”

Jack checked his calendar. “Let’s block out tomorrow morning. I need to figure something out before then.”

“Figure what out?”

Jack gave him a sobering look. “How to save you from yourself.”

Chapter 13

Wednesday night was bingo night.

Jack’sabuelawas adjusting well to the assisted living facility, but the older she got, the more English she lost. Playing bingo once a week gave them something fun to do while struggling to cobble sentences together in Spanglish. Even Righley’s Spanish was better than Jack’s, which made her the “arbiter of words,” with Righley’s decision final.