Justice Denied

Six justices of the U.S. Supreme Court have come to an outrageous and indefensible conclusion about the rights of criminal suspects, a conclusion that undermines the principles that the court says it supports. The justices say they believe that an accused person has a right to have a lawyer while being questioned by the police. But they have let stand a murder conviction even though the police denied that right to the accused man, interrogating him while keeping his lawyer out.

Twenty years ago the court laid down the law: A suspect must be told that he has a right to remain silent and that he has a right to have a lawyer. As a result, police throughout the country now routinely read suspects their Miranda rights--named for the case in which the issue was decided. Before that, third-degree interrogations and forced confessions were routine. What that court sought to do was lessen the inherent imbalance between the vast power of the state and the near-powerlessness of an individual accused of a crime. The current court seems not to care.

In the case decided Monday, Moran vs. Burbine, a 20-year-old man, Brian K. Burbine, was arrested by the police in Cranston, R.I., in 1977 on a charge of breaking and entering. He was read his Miranda rights, but he did not ask for a lawyer. While he was in custody, the police linked him to the murder of a 35-year-old woman who had been severely beaten with a metal pipe.

In the meantime, Burbine’s sister had retained a public defender to represent him on the breaking-and-entering charge. The lawyer, unaware thata murder charge was also in the making, called the police station at 8:15 p.m. and was told by a detective that Burbine would not be questioned on the burglary charge that night. A short time later, questioning began. Burbine, who was not told that a lawyer had tried to reach him, confessed to the murder and was subsequently convicted.

Justice Sandra Day O’Connor, writing for six justices, upheld the conviction. The justices were not pleased by the “misleading” police actions, she said, but as long as Burbine had been told his rights and waived them, his confession stood. What message does this unbelievable opinion send to the police? As long as you follow the letter of the law, chicanery is all right even if it violates the fairness demanded by the Miranda rule.

Only three justices--John Paul Stevens, William J. Brennan Jr. and Thurgood Marshall--recognized that Monday’s decision flies in the face of the essence of Miranda. “Today, incommunicado questioning is embraced as a societal goal of the highest order that justifies police deception of the shabbiest kind,” Stevens wrote for the three dissenters. “The court has trampled on well-established legal principles and flouted the spirit of our accusatorial system of justice.” At least three of them had their heads screwed on right.

The police should be required to bend over backward to ensure that suspects--certainly murder suspects--are treated fairly. If an accused person tells a judge that he doesn’t want a lawyer, the judge will usually assign one to him anyway. While the police don’t have to do that, they should be prevented from keeping out a lawyer who has been retained to represent a suspect and from deceiving the lawyer in the bargain. The way to prevent police abuse is to throw out the conviction.