By Zach Arnold | January 14, 2016
@SBNLukeThomas to the extent that he used for clearly non-incriminatory questions he did use it incorrectly.
— Erik Magraken (@erikmagraken) January 13, 2016
Nick Diaz’s five year suspension has been reduced for allegedly failing a marijuana test. The purse fine was also reduced. There were accusations of irregularities in the testing and test results when Diaz fought Anderson Silva.
Given Diaz’s history with the Nevada State Athletic Commission and the Attorney General’s office, it’s not a surprise that he and his legal team were extra cautious when the administrative law body went after him again for marijuana. It’s a civil, not criminal proceeding but any answers given under penalty of perjury could be used against him if the authorities wanted to prosecute him criminally.
But that’s an issue of law. The Nevada State Athletic Commission is more interested in the subjects before them groveling. This time, however, their request for groveling has created further sympathy for Nick Diaz and complete contempt for one of America’s worst combat sports regulatory bodies.
In pleading your Fifth Amendment rights, you do so to protect yourself from self-incrimination. In a civil hearing, judges & juries & administrative officers can make an adverse inference from any one who pleads the Fifth in refusing to answer a question. Pleading the Fifth in a civil matter, such as a deposition, provides great ammunition for a trial lawyer to completely discredit the credibility of an uncooperative witness.
Take the Bill Cosby matter in Pennsylvania as an example. After the prosecutor declined to file assault charges against Cosby, he ended up taking a deposition a year later in a civil suit. Rather than plead the Fifth Amendment, he answered questions about drugs and discussed quaalude usage. That deposition was put under seal until a judge decided to unseal it years later. Now, Cosby is criminally charged in Pennsylvania based on his admissions from the civil suit. His legal team will try to get the criminal charges dismissed based on the prosecutor refusing to file charges the first time around and that Cosby detrimentally relied on his prosecutorial decision, but Cosby wouldn’t have found himself in the position he is today if he had plead the Fifth during civil deposition.
Nick Diaz had every Constitutional right to invoke the Fifth Amendment at his appeals hearing in front of the Nevada State Athletic Commission. The Commission had every right to make adverse inferences from his refusal to answer questions. They punished him hard. And now they are showing their… generosity… by reaching a settlement agreement with Diaz in which he “agreed” that he was wrong to invoke the Fifth Amendment in not answering questions during his appeals hearing.
It’s no surprise that the Athletic Commission backed down once Diaz hired UFC’s counsel to step up to the plate. It’s one thing to save face but it’s another to go all Mayberry-ish in having Diaz claim he was “wrong” to invoke the Fifth Amendment during questioning. Undoubtedly, it was a small price for Diaz to pay to get some of his freedom back. Now that the Athletic Commission approved the agreement and the text of it has gone public, it’s made Las Vegas look even worse. The kicker, of course, is that the new Chairman of the Athletic Commission (Anthony Marnell) found himself in a sticky situation when the Nevada Gaming Commission frowned upon any casino owner applying for a marijuana permit.