http://www.kuro5hin.org/story/2002/11/24/212952/17
Bush administration pushes for repeal of Miranda law (News) By Arthur
Treacher Mon Nov 25th, 2002 at 01:54:09 AM EST
Bush administration officials U.S. Solicitor General Theodore B. Olson
and Michael Chertoff, the chief of the Justice Department's criminal
division, in a brief for an upcoming Supreme Court of the United States
(SCOTUS) case say that police have the right to force people held in
custody to talk, so long as their incriminating statements are not used
to prosecute them.
The case, in which oral arguments will be heard by SCOTUS on Dec. 4,
involves a farm worker, Oliverio Martinez, in Oxnard, California five
years ago. Martinez was riding his bicycle at dusk across a vacant lot
near some houses. Two police officers had stopped nearby to question
another man they suspected, wrongly, of selling drugs. When they heard
the bicycle they told the rider, Oliverio Martinez, to stop. Martinez had
a long knife that he used to cut strawberries in a leather sheath on a
waist band. When one of the officer patted him down and grabbed for the
knife, Martinez tried to run. The officer tackled him and tried to
handcuff him. As they struggled on the ground, the officer called out
that the man had a knife. The other officer then fired five shots; one
bullet entering Martinez near his left eye and exiting behind his right
eye. Another bullet hit his spine and three more bullets entered his
legs. When patrol supervisor Sgt. Ben Chavez arrived, the handcuffed
farm worker lay bleeding on the ground. Once Martinez was loaded into an
ambulance, Sgt. Chavez also entered the ambulance and rode to the
hospital with Martinez, and recorded the subsequent interview on a tape
recorder. During the ambulance ride and at the hospital, he repeatedly
asked the Martinez to admit he had grabbed the officer's gun and provoked
the struggle which resulted in the shooting. From a Los AngelesTimes
article (registration required): In agony, Martinez is heard screaming in
pain and saying he is 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?" he continues. One officer had said Martinez
tried to grab his gun. In the emergency room, Chavez continued to press
Martinez to tell him what happened. "Why did you run from the police?"
Chavez is heard to say over the sounds of nurses and doctors. "Did you
get his gun? ... Did you to try to shoot the police?" Martinez in a low
voice responds: "I don't know.... I don't know." Lawyers for Martinez
say he panicked when the officer tried to tackle him, but they say he did
not grab the officer's gun. In the emergency room, he is heard asking
Chavez several times to leave him alone. "I don't want to say anything
anymore." "No? You don't want to say what happened?" the sergeant
continues. "It's hurting a lot. Please!" Martinez implores, his words
trailing off into agonized screams. Undaunted, Chavez resumes. "Well, if
you're going to die, tell me what happened." Silence came only when pain
medication took hold, and Martinez faded into unconsciousness. Martinez
survived, although he will not see or walk again. He sued Oxnard police
for illegal arrest, the 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. Oxnard's position in this
case is that the suit should be dismissed because the patrol supervisor
was merely trying to learn what had happened. U.S. District Judge
Florence Cooper disagreed and said that the questioning of Martinez in
the ambulance and later in the hospital suggested he had sought to obtain
an admission from Martinez that would clear the two officers. A federal
judge ordered that case to go forward. Before the trial Oxnard's (under
California law, cities and counties are responsible for paying money
verdicts against their officers) lawyers appealed on behalf of Sgt.
Chavez saying he had not violated any of Martinez's Constitutional
rights. The appeal was rejected by the U.S. 9th Circuit Court of Appeals,
Judge Richard Tallman writing this in his decision: "Sgt. Chavez doggedly
pursued a statement by Martinez despite being asked to leave the
emergency room several times. A reasonable officer, questioning a suspect
who had been shot five 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 5th and 14th Amendment right to be free from
coercive interrogation." Oxnard then appealed again, sending the case to
SCOTUS. In their appeal they asked a basic question. Is there a
constitutional right to be free of coercive police interrogation? The
answer to that question should be no, they said, citing a 1990 ruling by
Chief Justice William H. Rehnquist in which Rehnquist said that the right
against self-incrimination in the 5th Amendment was a "trial right."
Police cannot violate this right when they force someone to talk, since
"a constitutional violation occurs only at trial." Martinez's lawyer R.
Samuel Paz says, "They are taking a radical position. [If they are right,
it] would permit officers to engage in the most egregious and abusive
conduct in violation of decades of 5th Amendment jurisprudence," SCOTUS
has agreed to hear Oxnard's appeal posing the broad question of whether
the Constitution regulates police questioning that does not lead to an
incriminating statement in court. Most lawyers who have followed the case
think the Rehnquist court will overrule the 9th Circuit and side with
Oxnard, although some think that the brutality of the shooting may cause
some justices to side with Martinez. What will it mean if the Supreme
Court sides with Oxnard in this case? According to University of Texas
law professor Susan Klein, " This will be, in essence, a reversal of
Miranda. 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." Meanwhile, Martinez lives with his father in a
one-room trailer on a farm field in Oxnard. He is in a wheelchair and
wears dark glasses to cover his missing eye. Oxnard's lawyers have
refused requests to pay for any therapy for him, saying they are not
willing to make a temporary settlement. The three officers involved in
the Martinez shooting remain on the Oxnard police force and suffered no
disciplinary action as a result of it.
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