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ADMINISTRATION LAWYERS ASKING HIGH COURT FOR "REVERSAL OF MIRANDA" By David G. Savage, Los Angeles Times, Reported in Las Vegas Review-Journal, 11-25-02, P. 1A Maybe you don't have a right to remain silent after all. The Supreme Court, in its famous Miranda ruling, told police they must respect the rights of people held for questioning. Officers must warn them of their right to remain silent and honor their refusal to talk further. But that widely known rule is about to be reconsidered in the Supreme Court in the case of a farmworker who was shot five times after a brief encounter with the police. Legal experts say the case has the potential to reshape the law governing everyday encounters between police and the public. While the farmworker lay gravely wounded, a police supervisor pressed him to talk, to explain his version of the events. He survived, paralyzed and blinded, and sued the police for, among other things, coercive interrogation. But the Oxnard police assert that the Miranda ruling does not include a "constitutional right to be free of coercive interrogation". But the Oxnard police assert that the Miranda ruling does not include a "constitutional right to be free of coercive interrogation," but only a right not to have forced confessions used at trial. Bush administration lawyers have sided with the Oxnard police in the case. The Supreme Court will hear oral arguments on Dec. 4. Police can hold people in custody and force them to talk, so long as their incriminating statements are not used to prosecute them, U.S. Solicitor Gen. Theodore B. Olson and Michael Chertoff, the chief of the Justice Department's criminal division, say in their brief to the court. It "will chill legitimate law enforcement efforts to obtain potentially life-saving information during emergencies," including terrorism alerts, if police and FBI agents can be sued for coercive questioning, they add. Legal experts on the other side of the case foresee far-reaching effects if the Oxnard police prevail. "This will be, in essence, a reversal of Miranda," said Susan Klein, professor of law at the University of Texas. "Officers will be told Miranda is not a constitutional right. If there is no right, and you are not liable, why should you honor the right to silence? I think it means you will see more police using threats and violence to get people to talk. Innocent people will be subjected to very unpleasant experiences." It was early evening on a late November day five years ago when Oliverio Martinez, 29, rode his bicycle down a path and across a vacant lot heading toward a row of small homes. Two officers, Andrew Salinas and Maria Pena, had stopped to question a man they suspected, wrongly it turns out, of selling drugs. When they heard the squeaky bike approach in the dark, they called for the rider to stop. Martinez got off his bike and put his hands over his head. In a leather sheath on a waistband, he carried a long knife that he used to cut strawberries. When the officer patted him down and grabbed for the knife, Martinez tried to run. Salinas tackled him and tried to handcuff him. As they struggled on the ground, Salinas called out that the man had a huge knife. Pena moved closer and fired. One bullet struck Martinez near the left eye and existed behind his right eye. A second bullet hit his spine. Three more shots hit his legs. When patrol supervisor Sgt. Ben Chavez arrived, the handcuffed man lay bleeding on the ground. Once Martinez was loaded into an ambulance, Chavez climbed in with a tape recorder in hand. On and off for the next 45 minutes, he repeatedly asked the gravely wounded man to admit he had grabbed the officer's gun and provoked the struggle. In agony, Martinez is heard screaming in pain and saying he was choking and dying. "OK. You're dying. But tell me why you were fighting with the police?" Chavez asks. "Did you want to kill the police or what?" In the emergency room, Chavez continued to press Martinez to tell him what happened. Martinez is heard asking Chavez several times to leave him alone. Silence came only when the pain medication took hold, and Martinez faded into unconsciousness. Martinez survived, although he will not see or walk again. He sued the Oxnard police for illegal arrest, use of excessive force and coercive interrogation in police custody. Under a post-Civil War law, city and state officials, including police officers, can be sued in federal court if they violate a person's rights under the U.S. Constitution. A federal judge in Los Angeles cleared Matinez's case to go before a jury. Oxnard's lawyers said the allegations against Chavez should be dismissed because the patrol supervisor was trying to learn what happened. U.S. District Judge Florence Cooper disagreed and said his questioning suggested he had sought to obtain an admission from Martinez that would clear the two officers. In the past, the Supreme Court has said police cannot be sued unless they violate "clearly established" rights. Before the case could be tried, Oxnard's lawyers appealed on behalf of Chavez, saying he had violated no clearly established right. (Under California law, cities and counties are responsible for paying money verdicts against their officers.) But the 9th U.S. Circuit Court of Appeals rejected Oxnard's appeal and said the facts as alleged, if proved at a trial, would justify holding Chavez and the city liable. The 9th Circuit judges said the rule against coercive police interrogation had been established decades before the Miranda decision of 1966. Judge Richard Tallman wrote: "A reasonable officer, questioning a suspect who had been shot fives times by the police and then arrested, who had not received Miranda warnings and who was receiving medical treatment for excruciating, life-threatening injuries would have known that persistent interrogation of the suspect despite repeated requests to stop violated the suspect's Fifth and 14th Amendment right to be free from coercive interrogation." To be sure, pro-police advocates say that torturing a suspect, or perhaps denying him food and water for an extended period of time, would be unconstitutional. They say that "shocking" or "brutal" police conduct could be punished. But "the fact that a federal appellate court has allowed (a lawsuit) for Sgt. Chavez's brief, comparatively benign questioning demonstrates the need to clarify the law (on the right against self-incrimination)," said Charles Hobson of Criminal Justice Legal Foundation. WORKING TOGETHER TO ATTAIN FAIRNESS | ||
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