Testing limits of police tactics in interrogations

Court hears case that may affect terror probes.

As faithful viewers of television police dramas are well aware, anyone arrested by the authorities has a right to remain silent under the American system of justice.

That Fifth Amendment right is aimed at preventing police from using coercive interrogation tactics to extract confessions or other incriminating statements. Instead, the police are required to gather evidence for use at trial through careful investigation rather than the application of brute force.

But what about someone who isn't later put on trial? Must police, nonetheless, abide by the same constitutional prohibition on coercive questioning, or are law-enforcement officials somewhat freer to use a more hardfisted approach?

That is the central issue in a case set to come before the US Supreme Court Wednesday in a legal dispute that could have significant implications for how the nation's ongoing war on terrorism is waged.

The case involves a California farmworker who was shot five times by an Oxnard police officer during a pat-down search that became a scuffle. A police supervisor traveled with the gravely injured farmworker to the hospital and continued to question him about the incident for 45 minutes as he struggled in and out of consciousness on an emergency-room gurney.

The worker, Oliverio Martinez, was shot in the head, back, and leg. Fourteen times he told the policeman he was in extreme pain. Eight times he said he thought he was dying, and twice he said he didn't want to talk any longer.

The police supervisor, Ben Chavez, did not advise Mr. Martinez of his right to remain silent, and Martinez was never charged with a crime or placed on trial.

Mr. Chavez says he was certain Martinez was going to die, and he wanted to preserve whatever information he could about the shooting.

Martinez didn't die. After recovering from his wounds, he sued Chavez for using coercive interrogation tactics in violation of his constitutional rights. A federal judge and a three-judge panel of the Ninth US Circuit Court of Appeals agreed with the farmworker.

At issue in the case before the high court is whether these constitutional protections apply to police conduct whenever police interact with the public, or instead only apply in the context of a criminal trial.

"So long as the government makes no use of a compelled statement in a criminal case, the Fifth Amendment is not violated," says Solicitor General Theodore Olson in a friend-of-the-court brief.

Lawyers for Chavez offer a similar argument. "There is no right to silence," says Lawrence Robbins in his brief to the court. Outside the context of a criminal investigation and trial, he says, police interrogation tactics do not violate constitutional protections unless they are so abusive as to "shock the conscience" of the court.

Martinez's lawyers disagree. "[The emergency-room interrogation] violated values at the core of constitutional constraints on abusive government conduct," says Samuel Paz of Los Angeles in his brief to the court. "Any reasonable officer would have known that this conduct violated the Constitution."

The case may have broader significance because of the war on terror. It arises at a time when the government is using a broad array of legal tools to detain and interrogate individuals in domestic operations that appear to be aimed more at intelligence-gathering than the prosecution of suspected criminals.

Susan Klein, an Austin lawyer who filed a friend-of-the-court brief on behalf of the National Police Accountability Project of the National Lawyers Guild, contends that terrorism has nothing to do with the Martinez case. She says it would be inappropriate for the high court to use the case to address the larger issue.

She adds, "If the court agrees with the government that the Fifth Amendment isn't violated and you can beat confessions out of people as long as it doesn't 'shock the court,' that would be a big change."

Kent Scheidegger of the Criminal Justice Legal Foundation in Sacramento, Calif., says the terrorism connection in the case is remote, but will "be lurking in the background" at the court.

"People gathering information can gather it in a way that would not be admissible in a criminal trial, such as questioning a person without reading him his Miranda warnings," says Mr. Scheidegger, siding with the government's view. "That evidence would be inadmissible in a trial, but it would not be a violation of the Fifth Amendment."

"When your goal is something other than prosecution, that can be an important difference."

A decision is expected by late June.

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