Lamenting Miranda’s fall

CHASING DOWN THE MUSE

You have the right to remain silent.

Not.

Anything you say can and will be used against you in a court of

law.

Unless you can prove we used coercion.

You have the right to speak to an attorney, and to have an

attorney present during any questioning.

IF you are smart enough to ask for one.

If you cannot afford a lawyer, one will be provided for you at

government expense.

IF we decide to charge you with a criminal act.

So ruled the Supreme Court Justices, on May 27, 2003, as they

dismissed the foundation of the Miranda Law, in a 6-3 decision, led

by Justice Clarence Thomas, in the case of Chavez v. Martinez (No.

01-1444).

The reach and scope of the decision is far greater than the fate

of Oliverio Martinez. In the supporting opinions of the decision, the

Supreme Court challenges what it calls the “prophylactic” effect of

the Miranda Law. In their ruling, the Justices determined that

Martinez’s rights of self- incrimination or due process were not

violated because he was not charged with a crime.

Prior to this ruling, in order to safeguard the Fifth Amendment, a

person in custody, before any interrogation, was to be clearly

informed that he / she had the right to remain silent. It is

important to note that, you or I, without being charged, can be

interrogated and / or arrested.

In 1963, Ernesto Miranda was arrested in Phoenix, Arizona for

armed robbery of a bank worker. While in police custody he signed a

written confession to the robbery, and to kidnapping and raping a

developmentally disabled 18-year-old woman. After the conviction, his

lawyers appealed, on the grounds that Miranda did not know he was

protected from self-incrimination.

The State of Arizona took the case to the Supreme Court. In a 1966

ruling, the Court, in upholding Miranda, sited from 1897 Bram v.

United States, and 1924 Wan v. United States, in support of the Fifth

Amendment, that, “ ... a confession obtained by compulsion must be

excluded whatever may have been the character of the compulsion, and

whether the compulsion was applied in a judicial proceeding or

otherwise.”

The “Miranda Rule” was born. Thanks to the media and network TV,

most citizens now know the ruling by heart. Subsequently, we have

come to expect a level of protection from deceptive police

interrogations and / or coercion.

Law enforcement agencies have consistently lobbied against

Miranda, stating that it tied their hands during arrests and

questioning.

Pressure from the Federal Government led Congress to pass a law in

1968 in an attempt to skirt the Miranda ruling. This law stated,

“Prosecutors in federal cases can use statements gathered without

informing suspects of their Miranda rights, as long as the statements

were given voluntarily.” The decision was highly criticized for

weakening defendant’s rights, and in June 2000, the Supreme Court

ruled in United States v. Dickerson “the 1966 Supreme Court ruling

had precedence over the 1968 federal law because the ruling was based

on constitutional rights.”

At question, is the intent of the Framers of the Constitution.

What rights were they trying to protect? One possibility: protection

from a government acting however it wished, by simply saying that an

individual was a suspected criminal.

In November 1997, Oliverio Martinez rode his bicycle into the

middle of an ongoing narcotics investigation. He was ordered to

dismount; Officer Salina patted him down, then there was a scuffle.

Salina yelled, “he’s got my gun,” (this fact is in dispute). Officer

Pena fired several shots. Five bullets struck Martinez, one in the

face, which rendered him blind, one in the spine, which paralyzed his

legs. He was handcuffed in this state, and questioned by Officer

Chavez, both during the ambulance ride and while undergoing emergency

treatment. Martinez cried several times, “I’m dying,” to which

Officer Chavez replied, “OK, yes you are dying, but tell me why you

are fighting, were you fighting with the police?”

Martinez sued the City of Oxnard and Officer Chavez on the grounds

that they violated his constitutional rights (Fourth, Fifth, Eighth,

and 14th Amendments) by stopping him without probable cause, using

excessive force, tampering with evidence, inflicting cruel and

unusual punishment, and subjecting him to coercive interrogation.

The Bush administration joined with the city of Oxnard. In briefs

filed in December 2002, U.S. Solicitor Gen. Theodore B. Olson and

Michael Chertoff, stated, “Police can hold people in custody and

force them to talk, so long as their incriminating statements are not

used to prosecute them.”

Those statements seem as far from the intention of the Framers as

I can possibly imagine. To watch as the Supreme Court tampers with

the Constitution is cause for great distress. To discover political

pressure influences the Court, is even more disturbing.

Who among us can be questioned? When and why? What further rights

have we just witnessed slip away?

* CATHARINE COOPER can be reached at [email protected].