MIRANDA LAW ERODED IN CALIFORNIA CASE FIFTH AMENDMENT RIGHTS WEAKENED BY U.S. SUPREME COURT JUDGES.

Byline: Gerald Plessner

IF you want a reason to be thankful for the filibuster, you need only read the U.S. Supreme Court's tortured decision in Chavez v. Miranda handed down last week.

In that case, the court changed what most Americans believe is at the core of the Fifth Amendment to the U.S. Constitution, that ``No person ... shall be compelled in any criminal case to be a witness against himself.''

The Supreme Court agreed with Solicitor General Theodore B. Olsen, who contended that the Fifth Amendment does not include a constitutional right to be free of coercive interrogation, but only a right not to have a forced confession used at trial.

The decision chips away at the Miranda ruling defining conditions under which an individual may be questioned.

Although many police officials believe the Miranda ruling has helped build stronger cases, the conservative court majority has indicated it believes Miranda stands in the way of the police in fighting crime.

That belief is shared by many ultraconservatives such as those now being nominated for judgeships by President George W. Bush.

Democratic senators who are concerned about a drastic rightward change in the federal judiciary are threatening to filibuster two such nominations.

Instead of upholding the general sense of the Fifth Amendment, which has guided our courts for decades, the Supreme Court held that questioning that is aggressive to the point of coercion does not violate the constitutional protection against self-incrimination, as long as no statements made under such interrogation are introduced at a trial of the person interrogated.

It didn't matter to the majority that, as Justice Stevens wrote in his dissent, the questioning was close to torture, or that, without a blanket Miranda warning, it would seem impossible to sort out statements made under duress or without a Miranda warning. Nor did the court clarify if information secured as a result of leads received in coerced statements would be admissible.

To get a sense of what could happen under the new interpretation of the Fifth Amendment, one only has to know the details of this case.

In November 1997, Oliverio Martinez, an Oxnard farm worker riding his bicycle, was stopped for questioning by two officers. Martinez got off his bicycle and put his hands above his head. The officer who patted him down found a large knife in his belt, the kind used for cutting strawberries. When the officer grabbed for the knife, Martinez started to run. Officer Andrew Salinas tackled and tried to handcuff him.

Salinas called out to his partner Maria Pena that Martinez had a big knife and was grabbing his gun. Pena moved closer and shot Martinez five times, once near the left eye, blinding him, once in the spine and three times in the legs, paralyzing him.

When supervising Sgt. Ben Chavez arrived, Martinez lay on the ground bleeding. He was then loaded into an ambulance and Chavez climbed in and rode to the hospital with him, immediately beginning to interrogate him.

Chavez was carrying a tape recorder and Martinez was never read his Miranda rights.

On the recording that resulted, Martinez can be heard screaming in pain and asking Chavez to leave him alone. He thought he was dying and wanted treatment for his wounds. Martinez asked several times to be left alone but Chavez kept questioning him, attempting to get Martinez to admit to trying to grab the firearm of the officer who tackled him.

Martinez was never charged with a crime. He sued the city of Oxnard, alleging illegal arrest, excessive force and coercive interrogation. The city has fought his attempts to receive compensation or therapy, and he languishes in a rural shack, blind and quadriplegic.

Oxnard has appealed each judicial decision, all of which were in Martinez's favor until his case reached the Supreme Court. The Supreme Court ruled his interrogation was not excessive but that he did have a right to sue for compensation and damages.

The Oxnard police contended that the Miranda ruling does not include a ``constitutional right to be free of coercive interrogation'' and Solicitor General Olsen agreed. In his brief, Olsen stated that ``Because (Martinez's) statements were not used against him in a criminal case, his Fifth Amendment right against compelled self-incrimination was not violated.''

Olsen further stated that, ``The privilege against self-incrimination guaranteed by the Fifth Amendment is a fundamental trial right of criminal defendants. Although conduct by law enforcement officials prior to the trial may ultimately impair that right, a constitutional violation occurs only at trial.''

The court majority included Chief Justice Rehnquist and Justices Breyer, O'Connor, Scalia, Souter and Thomas. Justice Thomas, in one of his rare statements in open court, read the opinion, in which six justices wrote separate opinions.

Justices Kennedy, Stevens and Ginsburg strongly disagreed with the majority, writing, ``Our cases and our legal tradition establish that the self-incrimination clause is a substantive constraint on the conduct of government, not merely an evidentiary rule governing the work of the courts.''

If a person's Fifth Amendment right to be free of coercive interrogation only exists if the questions might affect his rights in a trial, can a citizen be coerced to answer any other question asked by a police officer?

Think about that the next time someone mentions the filibuster.