Victims Bill of Rights Case May Signal Change of Court Direction

Like other suspects, Michael Dennis May was advised of his rights before police questioned him in 1983 about rape, robbery and other crimes committed against two women in Santa Barbara.

“Before I answer a thing I would want an attorney present here,” he said. Nonetheless, the officers went on to interrogate May and, even though no lawyer was on hand, he answered their questions, giving conflicting and damaging answers.

After May later was charged with the crimes, a judge found that the statements were improperly obtained and could not be used directly against the defendant at trial. But the judge also held that under Proposition 8, the Victims Bill of Rights law, prosecutors could use the statements to challenge May’s truthfulness if he chose to testify.

Now, in a major test of the sweeping 1982 initiative, the new and more conservative state Supreme Court will hear argument this week over whether the judge was correct in finding that Proposition 8 requires state courts to follow less restrictive federal precedents on the use of illegally obtained statements.

First Important Interpretation

The dispute not only gives the justices an opportunity for their first important interpretation of Proposition 8 but also could signal how they intend to treat previous criminal law decisions made when the court was dominated by liberals.

Over the years, with Justice Stanley Mosk leading the way, the court often chose not to follow rulings by the U.S. Supreme Court, basing decisions instead on the state Constitution. Under the doctrine of “independent state grounds,” state courts are allowed to use their own laws to extend greater liberties than required by federal rulings.

At issue in May’s case is whether the court can reaffirm a decision written by Mosk in 1976 barring the use of improperly obtained statements or whether, under Proposition 8, it must adhere to a 1971 decision by the U.S. Supreme Court that allows use of such statements to attack the credibility of defendants.

The May case originally came to the court under former Chief Justice Rose Elizabeth Bird. Last January, in a flurry of rulings issued just before Bird and two other justices defeated in the Nov. 4 election left office, the court held 5 to 2 in an opinion by Mosk that May’s statements could not be used to impeach him. Despite Proposition 8, California courts remain bound by a 1976 state Supreme Court decision, the justices said.

Law enforcement officials denounced the January ruling as permitting defendants to lie at trial without any risk that their past statements would be used against them.

State Atty. Gen. John K. Van de Kamp quickly sought a rehearing. Last March, with Chief Justice Malcolm M. Lucas leading the court and three new appointees of Gov. George Deukmejian on the bench, the new court agreed to reconsider the May case, along with five other controversial rulings issued just before Bird and Justices Cruz Reynoso and Joseph R. Grodin left office. Now, lawyers for the state are hopeful that the new court will reject the ruling in May’s favor last January, as well as the 1976 precedent on which it was based.

“We’re very optimistic,” said Deputy state Atty. Gen. Sharlene A. Honnaka, who will argue the case for the state on Wednesday. “If they were not at least interested, I don’t think they would have granted a rehearing.”

May’s lawyer could not be reached for comment.

Honnaka’s optimism appears well-founded in view of the court’s philosophical realignment. The three justices who left the court had joined Mosk and Justice Allen E. Broussard to form the majority in the January ruling.

The two dissenters were Lucas and Justice Edward A. Panelli, who along with three other Deukmejian appointees--Justices John A. Arguelles, David N. Eagleson and Marcus M. Kaufman--now make up a majority of the court.

Lucas, joined by Panelli, assailed the majority for “thwarting the obvious intent” of the voters in enacting Proposition 8 and its key requirement that state courts follow federal rulings on the admissibility of evidence in criminal cases.

Lucas’ Interpretation

The initiative, Lucas said, had been designed for the very purpose of overturning the 1976 ruling “and similar cases which had elevated the procedural rights of the criminal defendant far above the level required by the federal Constitution.”

The question before the new court, as before, is how to interpret provisions of the initiative requiring the admission of all “relevant evidence” in criminal proceedings.

In 1985, the state Supreme Court gave law enforcement a major victory by ruling 4 to 3 that in cases involving the admissibility of evidence gathered in illegal searches, Proposition 8 required state courts to follow the generally less-prohibitive standards set by federal courts.

But in its January ruling in the May case, the court drew a distinction between evidence gained from illegal searches and statements obtained in violation of the privilege against self-incrimination.

Mosk noted that the initiative itself contains a clause saying it does not affect “any existing statutory rule of evidence” relating to the privilege.

Existing state statutes establishing the privilege against self-incrimination include interpretations of that privilege made by the court--and thus the 1976 holding barring the use of improperly obtained statements for impeachment purposes must be followed, he said.

Balance Called Upset

In briefs filed with the court, state attorneys are contending that by following its 1976 precedent the court has upset the balance between protection against self-incrimination and the truth-seeking functions of criminal proceedings.

They note that in recent years, most states around the country have chosen to follow the 1971 U.S. Supreme Court ruling allowing the use of improperly obtained statements for impeachment purposes.

So long as such statements are voluntary, they should be admitted for the limited purpose of impeachment, even though there was a violation of the Miranda rule that would preclude their direct use against a defendant, the state asserts.

On the other side, May is urging the justices to find again that Proposition 8 had no effect on existing statutory rules of evidence protecting the privilege against self-incrimination.

May also disputes the state’s claim that the ruling effectively allows defendants to lie in court. Prosecutors still can use improperly obtained statements as leads to other evidence that would be admissible against a defendant, he contends. Another guard against perjury, May cites, is that defense attorneys are prohibited from encouraging or allowing defendants to perjure themselves on the witness stand.

At trial, May decided not to testify because, as his attorney told the judge, “we don’t want to be subjected to the possibility of cross-examination” on the statements he had made to police. He was convicted on the testimony of two women victims in the case and physical evidence presented against him by the prosecution. In his appeal, May claimed the judge’s ruling that his statements to police were admissible effectively prevented him from testifying.