Mary-Kate Olsen and Immunity

The New York Post reports that, through counsel, Mary-Kate Olsen is refusing to speak to federal investigators about the death of the talented Heath Ledger unless she receives immunity. Why, you might wonder, would she do this unless she has something to hide?

I decided to blog about this because my fiction sometimes plays into the perception that only guilty people refuse to cooperate with law enforcement. Ellie Hatcher, Samantha Kincaid, and their colleagues usually assume that a person who “takes the Fifth” must be guilty — they may not know of what, but of something. That’s how assumptions go in the world of cops and prosecutors.

Nevertheless, I found myself sympathizing with Mary-Kate today, and not this time for her questionable wardrobe choices. The inferences likely to be drawn by the press and the public (she was his dealer! she had her own drugs on the premises!) will be worse than some of the less interesting reasons she may have for protecting her rights. First, she may have done something illegal but which would not usually be the basis for a federal criminal prosecution, such as sharing a prescription drug. Second, she may simply fear that the interview will bring up material that might be embarrassing but not necessarily illegal. In either case, she might be tempted to lie. And lying to the federal government, even when not under oath, constitutes a separate felony under 18 USC 1001.

So it’s not surprising that Mary-Kate’s lawyers are trying to avoid the interview. But it’s also not surprising that a public who cares about this stuff (whole nother subject, right?) will put her through the reputational ringer for it. And I’ll confess that, as a law prof who writes fiction about characters who usually assume the worst, I’m wondering if I’ve been responsible enough in my writing. Granted, I’ve had both Ellie and Samantha make mistakes by assuming the worst too quickly, but I don’t stop and lecture the reader: “See what happens when we don’t permit people to exercise their constitutional rights without adverse inferences?” But, wow, who would want to read a book that hits you over the head like that? I hope I’ve done enough to strike the right balance, not so much for the Mary-Kates of the world, but for regular people who find themselves judged – both in and out of court – by people who read novels.