HIGH COURT TO HEAR MIRANDA CHALLENGE

Ruling In Oxnard Case Could Reinterpret Landmark Decision On Rights During
Police Questioning. White House Backs A Change.

OXNARD -- Maybe you don't have a right to remain silent after all.

The Supreme Court in its landmark Miranda opinion ruled that police 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 high court in
the case of a farm worker here who was shot five times after a brief
encounter with police. Legal experts say the case has the potential to
reshape the law governing everyday encounters between police and the public.

While the farm worker 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 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 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 police prevail.

"This will be, in essence, a reversal of Miranda," said University of Texas
law professor Susan Klein.

"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."

It was early evening on a November day five years ago when Oliverio
Martinez, 29, rode his bicycle down a path and across a vacant lot 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 a
squeaky bike approach in the dark, they called for the rider to stop.

Martinez dismounted and put his hands over his head. In a leather sheath on
a waist band, 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, a handcuffed Martinez 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 in the ambulance and at the hospital, 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 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 would 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.

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

Oxnard's lawyers said the allegations against Chavez should be dismissed
because the patrol supervisor was merely trying to learn what had 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 U.S. 9th 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.

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

The Miranda decision grew out of the 5th Amendment, which says no person
"shall be compelled in any criminal case to be a witness against himself."
This has long been known as the right against self-incrimination.

The Supreme Court in the 1950s and '60s struggled in a series of cases to
decide whether a person's confessions to the police had been voluntary or
compelled. Often, a suspect claimed to have been beaten, but the police
denied it. In one case, five members of a Los Angeles family had been held
in jail for more than a week before one of them talked.

In frustration, Chief Justice Earl Warren announced a broad new rule in
Miranda vs. Arizona. He said that because police questioning is inherently
coercive, officers must warn suspects of their rights before questioning
begins. His opinion and others that followed it described the so-called
Miranda warnings as limitations on the police.

But all along, some lawyers and law professors have questioned whether the
Miranda warnings themselves are a constitutional requirement.

When Oxnard's lawyers appealed the case of Chavez vs. Martinez to the
Supreme Court, 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. And they cited a
reliable source for their view: Current Chief Justice William H. Rehnquist,
a frequent critic of Warren's opinion in the Miranda case.

In a 1990 ruling, Rehnquist commented 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," the chief justice said.

The National Assn. of Police Organizations, the California attorney
general's office and the Criminal Justice Legal Foundation in Sacramento
all have urged the court to use the Martinez case to make clear that the
Constitution does not limit forceful police questioning.

"Contrary to the 9th Circuit's conclusion, there is no 'right to silence,'
" said Oxnard's lawyer Alan E. Wisotsky. Since Martinez was not prosecuted
for anything he said, his rights were not violated by Sgt. Chavez, he
concludes.

The 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.

However, "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," said Charles Hobson of Criminal Justice Legal
Foundation.

Klein, of the University of Texas, filed a friend-of-the-court brief on
behalf of the National Police Accountability Project.

She argued that innocent people will be particularly vulnerable if the
court rules the Constitution does not forbid coercive police questioning.
Criminal suspects still can insist their incriminating statements not be
used against them at trial.

But an innocent person who is held for questioning would have no right and
no remedy, she said.

Two years ago, the high court took up a well-publicized challenge to the
Miranda decision and ultimately refused to overturn it. Rehnquist, a
longtime critic of Miranda, surprised many by writing the decision for the
7-2 majority.

But his opinion did not describe the Miranda decision as limiting the
police. Instead, he said it means that some incriminating statements "may
not be used as evidence in the prosecution's case."

Former Los Angeles prosecutor Steven Clymer, now a Cornell University law
professor, said the Martinez case will decide "what Miranda really means on
the street. I think the court will say it is OK for the police to violate
Miranda. You are not violating the Constitution when you ignore Miranda,"
he said.

That will affect how police behave, he said. "If the guy says, 'Stop, I
don't want to talk,' or he says, 'I want to see a lawyer,' you [as a police
officer] aren't going to get anything out of him," he explained. If the
officer continues the questioning and pressures the suspect, he or she may
learn valuable information, such as facts about the crime, the location of
a weapon or the names of other suspects or witnesses. All this information
can be used against the suspect, even if incriminating statements cannot be
used at a trial.

"If you're the officer, you look at the costs and the benefits," Clymer
said. And many police officers will decide it is better to ignore the
suspect's right to remain silent than to respect it, he said.

Clymer, who has an article in the Yale Law Review next month titled "Are
Police Free to Disregard Miranda?" said the Supreme Court would be "more
honest if it just overruled Miranda."

Such an outcome would surprise many.

"A generation of Americans have been brought up with the belief that we
have a right to remain silent," said Ben Wizner of the ACLU of Southern
California.

Los Angeles lawyer R. Samuel Paz, who is representing Martinez, said he is
surprised by the strange turn in the case.

"They are taking a radical position," Paz said of Oxnard's lawyers. 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," he
wrote in his brief to the court.

Although most lawyers who have followed the case think the Rehnquist court
will overrule the 9th Circuit and side with Oxnard, some think the brutal
shooting will cause several justices to hesitate.

The court could decide the case narrowly by focusing on whether Martinez
was in police custody at the hospital or whether the law regulating Chavez
was clearly established. But the justices agreed to take up Oxnard's appeal
posing the broad question of whether the Constitution regulates police
questioning that does not lead to an incriminating statement in court.

For Martinez, the slow-moving legal battle has proved to be a new type of
agony. Now 34, he lives with his father in a one-room trailer on a farm
field in Oxnard. He is in a wheelchair and wears dark glasses, covering his
missing eye.

"Everything has changed. I can't do anything for myself," he said in an
interview. His father leaves food on the stove each day before leaving so
his son can warm his lunch.

"I depend on my dad. It's very difficult for me," he said.

Oxnard's lawyers have refused requests to pay for any therapy for him.

Regardless of what happens in the Supreme Court, Martinez and his lawyers
say they will continue to press their claims for illegal arrests and
excessive force against the Oxnard police.

The city's lawyers say they are not willing to make payments or 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, city
lawyers said.