TIME: Almanac 1993/TIME Almanac 1993.iso/time/040891/0408103.000

Text File | 1992-08-28 | 7.6 KB | 162 lines

                                                                                NATION, Page 26

Confessions That Were Taboo Are Now Just a Technicality


The Supreme Court's conservative majority delivers a big blow
to the rights of defendants in a 5-to-4 decision

By RICHARD LACAYO -- Reported by Julie Johnson/Washington and
Elaine Lafferty/Los Angeles


    "The admission of an involuntary confession is a 'trial
error,' similar in both degree and kind to the erroneous
admission of other types of evidence."

    --Chief Justice William Rehnquist

    "Today a majority of the court, without any justification,
. . . dislodges one of the fundamental tenets of our criminal-
justice system."

    --Associate Justice Byron White


    The shortest route to a conviction is to get the accused
to cry out, "I did it." Sometimes police and prosecutors have
been tempted to whip the suspect down that road with anything
from a subtle threat to a back-room clubbing. For that reason,
courts have long held that forced confessions, whether they were
obtained by coercion, beating or psychological pressure, could
not be used against an accused person in court. Last week, in
a ruling that showed just how vulnerable the legacy of the Earl
Warren years has become, the U.S. Supreme Court decided that
maybe forced confessions were not such an important matter after
all.

    In a 5-to-4 decision that brought home the importance of
substituting Justice David Souter for the liberal William
Brennan, the court ruled that the introduction of a coerced
confession at trial may be considered a "harmless error." That
undoes part of a 1967 decision in which the Justices ruled that
when such confessions are introduced as evidence, any guilty
verdict that follows must be reversed automatically on appeal.
As a result of last week's decision, what was once taboo will
henceforth be merely a technicality.

    Forced confessions will still not be sanctioned, but that
may not mean much for defendants. If a tainted confession is
heard by the jurors, it may help persuade them to find the
defendant guilty. But the verdict will no longer be overturned
automatically -- provided that an appeals court finds that other
evidence would have been sufficient to obtain a conviction. Some
legal experts fear that the new standard will tempt prosecutors
to introduce questionable confessions in borderline cases in
the hope that any resulting conviction will be upheld.

    For defense lawyers, the timing of the ruling was as
unsettling as its substance. It came when the videotaped beating
of Rodney King by Los Angeles cops has focused national
attention on police brutality. But the decision had a deeper
importance for the larger direction of the court. It was the
clearest signal yet that Souter has given court conservatives
a reliable majority in cases involving the rights of criminal
defendants. Says University of Chicago law professor Philip
Kurland: "They've finally got enough votes."

    Even so, not all the court's conservative members could
agree on every aspect of the case. Chief Justice William H.
Rehnquist, writing for a majority that included Souter, Anthony
Kennedy, Sandra Day O'Connor and Antonin Scalia, argued that
introducing an involuntary confession at trial was merely a
procedural error. He distinguished such "harmless errors" from
"structural defects" such as a biased judge or a denial of the
defendant's right to an attorney. Unfair practices of that
magnitude, he said, would still trigger an automatic reversal
on appeal.

    The majority's reasoning provoked a sharp dissent from
Justice Byron R. White, who ordinarily sides with the Chief
Justice on cases involving criminal procedure. Speaking for
himself and Justices Harry Blackmun, Thurgood Marshall and John
Paul Stevens, White took the unusual step of reading aloud his
own strongly worded opinion from the bench. Confessions are
different from other kinds of evidence, White reasoned. Their
impact upon a juror's thinking is too powerful.

    It is hard to imagine that the defendant's confession did
not affect the jury in Arizona v. Fulminante, the case that
resulted in last week's ruling. In 1982 Arizona police suspected
Orestes Fulminante, a convicted child molester, of murdering his
11-year-old stepdaughter, but they lacked enough evidence to
arrest him. Eventually Fulminante was arrested on a weapons
charge, convicted and sent to a federal prison.

    While there, Fulminante began to fear he was being
targeted by prisoners who had heard rumors that he was a child
killer. Anthony Sarivola, a fellow inmate with a reputation for
mob connections, offered to protect Fulminante but demanded to
know the full details of the crime. At that, Fulminante
admitted he had driven the girl into the desert, forced her to
perform oral sex and made her beg for her life until he shot her
twice in the head.

    What Fulminante did not know was that Sarivola was an FBI
informant. On the basis of his talks with Sarivola, as well as
a second admission that he made to Sari vola's fiance after both
men were freed, Fulminante was brought back to Arizona, where
he was tried, found guilty of the girl's killing and sentenced
to death. His conviction was overturned by the Arizona Supreme
Court, which held that his confession was coerced because it was
made under the pressure of a plausible threat of violence.
Ironically, despite its ruling that forced confessions could be
harmless in some circumstances, the U.S. Supreme Court ordered
Arizona to give Fulminante a new trial on the grounds that in
his case the introduction of a coerced confession was not a
harmless error. Without the two confessions, the prosecution may
not have had enough evidence to convict him.

    Legal experts disagree on whether last week's ruling will
give authorities a freer hand to browbeat suspects. "Many years
ago the police became convinced that they don't need violence
to get people to confess," says Yale Kamisar, a criminal-law
expert at the University of Michigan. But the head-banging style
of police interrogation has not disappeared. A dramatic
example: the case of Barry Lee Fairchild, a black man with an
IQ of 62 sentenced to death for the 1983 murder of a white Air
Force nurse in Little Rock. Lawyers for Fairchild, who are
pursuing an appeal, say he confessed only after Pulaski County
sheriff's deputies put telephone books on top of his head and
slammed downward repeatedly with blackjacks. "That leaves no
marks but causes excruciating pain," says Fairchild's attorney
Steven Hawkins.

    Beyond Fairchild's confession there is no evidence, other
than a watch, to link him to the crime. Ex-Sheriff Tommie
Robinson, who went on to serve as a Democratic member of
Congress since 1985, denies Fairchild's claims. But 11 black men
who were brought in for questioning in Pulaski County at about
the same time as Fairchild gave vivid descriptions of methods
used by deputies to obtain confessions. Three said they had
pistols placed in their mouth. Officers pulled the trigger. The
guns were not loaded, but the point was made.

    Later this year the court is expected to decide several
other criminal cases. Among them: Florida v. Bostick, in which
the Justices will rule on whether narcotics agents can board a
bus and randomly search and question passengers. It is the kind
of case that probably would have spurred Brennan's customary
defense against unreasonable searches. But Brennan is retired;
Souter is in his place; and the long-predicted new era on the
court has plainly begun.