MIRANDA RULES FOR POLICE FACE CHALLENGE

High Court To Ponder Questioning Of Man

Monday, November 25, 2002 - OXNARD, Calif. - Maybe you don't have a right
to remain silent after all. The Supreme Court told police in its famous
1966 Miranda ruling that they must respect the rights of people who are
held for questioning.

Officers must warn them of their right to remain silent and, equally
important, 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 man shot five times after a brief encounter with police in
Oxnard.

Legal experts say the case has the potential to reshape the law governing
everyday encounters between police and the public.

As Oliverio Martinez 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 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 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
General Theodore 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
lifesaving 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 say they 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?" she asked. "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."

On a late November evening five years ago, Martinez, a 29-year-old
farmworker, 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 turned 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, the officer called out that the man had a
huge knife. Pena moved closer and fired.

One bullet struck Martinez near the left eye and exited behind his right
eye. A second 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 that he had grabbed the officer's gun and provoked the struggle.

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 that tear through the room.

Undaunted, Chavez resumed: "Well, if you're going to die, tell me what
happened."

Pain medication took hold and Martinez faded into unconsciousness. He
survived, although he would not see or walk again.

He sued the 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 Constitution.

A federal judge in Los Angeles cleared Martinez's case to go before a jury.

Before the case could be tried, Oxnard's lawyers appealed on behalf of
Chavez, saying he had violated no clearly established right.

The 9th U.S. Circuit Court of Appeals said the rule against coercive police
interrogation had been established decades before the Miranda decision of 1966.

"Sgt. Chavez doggedly pursued a statement by Martinez despite being asked
to leave the emergency room several times," Judge Richard Tallman wrote.

"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 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 (the right against self-incrimination)," said Charles
Hobson of the Criminal Justice Legal Foundation.