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Police can force person talk { May 28 2003 }

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   http://www.latimes.com/la-na-miranda28may28,1,7269493.story

http://www.latimes.com/la-na-miranda28may28,1,7269493.story

Court Gives Leeway to Interrogate
Justices deal a blow to Miranda right, say a person can be forced to talk in bid for evidence.

By David G. Savage
Times Staff Writer

May 28, 2003

WASHINGTON -- The Supreme Court narrowed the right against self-incrimination Tuesday, ruling that police and government investigators can force an unwilling person to talk, as long as those admissions are not used to prosecute them.

The 6-3 opinion undercuts the well-known Miranda warnings, in which officers tell individuals of their right to remain silent. It appears to allow more aggressive police questioning of reluctant witnesses in the hope of obtaining evidence. While a person's words cannot be used against him or her in court, evidence can be.

Tuesday's decision also could prove useful to the government in the war on terrorism. The FBI agents who fanned out around the country after the terrorist attacks in New York and at the Pentagon mostly wanted information, not criminal convictions.

Most immediately, however, the decision throws out part of a lawsuit brought on behalf of a gravely wounded farm worker in Oxnard who was questioned in a hospital emergency room by a police supervisor.

The officers who shot Oliverio Martinez in the face and back can be sued for using excessive force, and possibly for "outrageous conduct" at the hospital, the court said. But the justices ruled that the police supervisor who repeatedly questioned Martinez did not violate his 5th Amendment rights in doing so.

Civil libertarians worried that the decision signals a retreat from the Miranda rulings of the past. Already, the court has agreed to hear three Miranda cases in the fall, one testing whether police can deliberately violate the right to remain silent.

"When the court handed down Miranda [in 1966], it set out clear lines. When you crossed the line, you violated the constitutional right," said Charles Weisselberg, a UC Berkeley law professor. "Now Miranda has become something else a rule of evidence, but not a constitutional right. I fear that means it will have less respect from police, judges and the criminal justice system."

Police advocates applauded the ruling.

"This is a good win for the law enforcement community," said Charles L. Hobson of the Criminal Justice Legal Foundation in Sacramento. "It will be the rare case where an officer is ever held liable for questioning. This shows that Miranda is just about excluding evidence at a trial," he said, not about setting constitutional rules for questioning.

Since December, when the court took up the farm worker's case, the justices have been reconsidering the reach of the Miranda decision and the right against self-incrimination.

The Martinez case examined whether the Constitution protects a person when he is being questioned by police, or only later at a future trial.

In past decades, the more liberal Supreme Court had said that suspects and witnesses had a right to remain silent. The 1966 decision in Miranda vs. Arizona held that police officers must tell people of their rights before questioning them.

Similarly, unwilling witnesses called before investigating committees had the right to "plead the 5th Amendment" and thereafter refuse to testify.

But in Tuesday's opinion, the court majority said that the 5th Amendment comes into play only later, when a suspect is tried in court.

Despite a common perception, the Constitution does not bar police from using pressure short of torture to obtain information from suspects or witnesses, said Justice Clarence Thomas in the court's lead opinion.

"Mere compulsive questioning [does not] violate the Constitution," Thomas said. He dismissed the view adopted by federal judges in California that "coercive police interrogations, absent the use of the involuntary statements in a criminal case, violates the 5th Amendment's Self-Incrimination Clause."

Chief Justice William H. Rehnquist and Justices Antonin Scalia and Sandra Day O'Connor agreed with Thomas.

Justices David H. Souter and Stephen G. Breyer concurred on the issue of barring the use of compelled confessions in court. However, in a separate opinion, they said "outrageous conduct by the police" still might violate a witness' constitutional right to "due process of law."

Three justices who sided with the Oxnard farm worker Justices John Paul Stevens, Ruth Bader Ginsburg and Anthony M. Kennedy agreed with Souter and Breyer that police can be sued for "outrageous conduct" during an investigation.

In a long dissent, Kennedy said the court was abandoning a historic understanding of the 5th Amendment.

"This is no small matter. To tell our whole legal system that, when conducting a criminal investigation, police officers can use severe compulsion, even torture, with no present violation of the right against compelled self-incrimination can only diminish a celebrated provision in the Bill of Rights," Kennedy wrote. "A Constitution survives over time because the people share a common, historic commitment to certain simple but fundamental principles which preserve their freedom. Today's decision undermines one of those respected precepts."

In a separate dissent that focused on the Martinez case, Stevens called the hospital questioning "the functional equivalent of an attempt to obtain an involuntary confession from a prisoner by torturous methods."

The fractured ruling left lawyers uncertain about what happens next in the Martinez case. His suit will return to a federal judge in Los Angeles, or possibly the U.S. 9th Circuit Court of Appeals.

The Los Angeles lawyer who sued the city of Oxnard on Martinez's behalf stressed that Tuesday's ruling does not affect the main claim that police violated his rights by shooting him.

"The excessive force claim is ready for trial," Samuel Paz said. "I'm saddened they used this case to chip away at our Constitution."

Alan Wisotsky, Oxnard's lawyer, said the ruling vindicated the police department's major contention at this stage of the case.

"I said from the beginning there is no right to silence, and I think the court has confirmed that," he said. "The shooting itself was put on the back burner, but that's the real issue now. We think we have a strong case."

The two sides disagree on who was to blame for the shooting that left the then-29-year-old Martinez paralyzed.

It was dark on the evening of Nov. 28, 1997, when two Oxnard officers stopped to question a possible drug suspect near a row of small homes. From the opposite direction, Martinez rode up on his squeaky bike, heading toward his girlfriend's house.

When he approached, an officer called for him to halt. He did so, but when the officer grabbed for the field knife on his belt, a scuffle ensued.

"He's got my gun," the first officer called out. A second officer then fired five shots, hitting Martinez in the eyes and in his lower back. He was left blind and was paralyzed below the waist.

Minutes later, Sgt. Ben Chavez, the patrol supervisor, arrived and jumped into the ambulance. He hoped to get a statement from the dying man.

On the tape made in the emergency room, Martinez can be heard screaming in pain.

"What happened?" Chavez asked.

"The police shot me," Martinez replied. "I am dying!"

"OK, yes, you are dying. But tell me why you are fighting with the police," Chavez continued. The interrogation continued off and on over 45 minutes.

Martinez survived and sued the Oxnard police for illegal arrest, excessive use of force and the coercive interrogation in the emergency room.

A federal judge in Los Angeles cleared the full case to go to trial.

Oxnard's lawyers challenged the claim against Chavez involving the emergency room questioning, but the 9th Circuit agreed Martinez' constitutional rights were violated. "No reasonable officer would believe that an interview of an individual receiving treatment for life-threatening injuries ... was constitutionally permissible," the appeals court said.

But the Supreme Court took up Oxnard's appeal, and the Bush administration joined the case on the city's side.

In Chavez vs. Martinez, the court reversed the 9th Circuit's ruling allowing the Oxnard police to be held liable for violating the 5th Amendment.

But the appeals court will probably have to reconsider whether the emergency room questioning is a type of outrageous conduct that is unconstitutional.

The two sides might also settle the suit before it goes to trial.


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Copyright 2003 Los Angeles Times




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