THERE'S MORE BEHIND OXNARD MIRANDA CASE.

Byline: Gerald Plessner

LIKE most Americans, you probably believe that the Fifth Amendment grants you the right to remain silent if interrogated by police. You have seen television detectives recite the Miranda statement so many times, you almost know it by heart. And you probably thought it was wrong for police to coerce you into talking after you tell them you want a lawyer and do not want to talk.

Well, if you are like me and believed that to be true, you are in for a rude awakening. In a case being argued today before the U.S. Supreme Court (Ben Chavez v. Oliverio Martinez), the city of Oxnard and U.S. Solicitor General Theodore B. Olsen contend 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 case results from an incident in Oxnard involving an immigrant farm worker riding a squeaky bicycle, but it has broad implications for all Americans. The facts in the case are not in dispute because Oxnard police Sgt. Chavez tape-recorded the interrogation that is at issue.

In November 1997, Oliverio Martinez, a farm worker riding his bicycle in Oxnard, 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. 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 it has appealed judicial decisions, all of which have been in Martinez's favor.

The Oxnard Police Department contends that the interrogation of the only witness, who might soon die, was vital to clear up a potential crime, but the real intent appears to be to relieve the city of Oxnard of liability for an officer-involved shooting.

The Oxnard police contend that the Miranda ruling does not include a constitutional right to be free of coercive interrogation, and Solicitor General Olsen agrees with them. In his brief to the Supreme Court, Olsen states that ``because (Martinez's) statements were not used against him in a criminal case, his Fifth Amendment right against compelled selncrimination was not violated.'' Olsen further states that ``the privilege against selncrimination 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.''

What this seems to say is that the Miranda ruling no longer governs police behavior, and that the police can coerce you to confess by almost any means short of violence. Even with a firm request for counsel, the police can delay your access to an attorney, citing an urgent need for information that might assure public safety. Solicitor General Olsen raises the specter of terrorism to make this point.

Some attorneys believe that a decision in favor of Chavez will seriously undermine the Miranda rule, which has been accepted law for many years. If the city of Oxnard prevails, you will have no right to remain silent and no protection against selncrimination until police charge you with a crime. If they then use your statements against you in court, you have the burden of proving that your statements were coerced.

The position of the solicitor general is reminiscent of a time not too long ago when the police had much broader leeway in how they treated suspects. For many, it was not a happy time. Olsen's words can be taken as a measure of where the current Justice Department and the Bush administration want to take America.

If you think this is all far-fetched, you should know that Chief Justice William Rehnquist has already spoken in support of the idea that the Fifth Amendment right against selncrimination is only a trial right. And Theodore Olsen is a leading candidate for the next vacancy on the Supreme Court.