Requiem for the Squealroom

...Don't you know they don't leave no marks no more...

...There are countless examples of this judicial deference to the police...

...Chief Piersante revealed that only 9.3 per cent of the murder confessions were "essential" to prosecution: a precipitous drop from ex-New York Police Commissioner Michael Murphy's estimate of 50 per cent, and the usual police estimates of 75-90 per cent...

...But the "swearing contest" approach overlooks the basic meaning of the decision and furthers the kind of silly "loophole seeking" that has hurt the police position in the past...

...They got what they asked for, if not what they wanted...

...But last month the police across the country were again petulantly "closing shop" because of judicial "coddling" of "criminals"this time in response to a Supreme Court ruling on confessions that "shackled" and "handcuffed" them as "never before" in their task of stemming what has always been "the greatest crime wave in history...

...If he waives his rights and begins to answer questions, he can stop the music at any time by indicating that he wants a lawyer...

...It involves not only Miranda's extension of the Fifth Amendment's self-incrimination clause, but also the Fourth Amendment's commandment that no man be arrested without probable cause...

...Then, in February, Chief of Detectives Vincent W. Piersante of Detroit revealed that the confession rate in murder cases had actually risen there during the first nine months of 1965, after the warning system was installed-though the police doomsayers had invariably cited murder cases as the "'perfect example" of the importance of confessions...

...Public pressure and the promise of a promotion add to the "need" to extort a confession...

...But the police problem here is much deeper than the Miranda case...

...He noted that the police have fared well in these contests in the past...

...The precinct commanders had been systematically "canning" and downgrading crime reports to look better in the monthly statistics...

...One is that people talk regardless of warnings because they are anxious to "get it off their chests.' Another is that the warnings are given in a garbled manner, in order not to overcome the suspect's post-arrest bewilderment, or are used deceptively to establish "rapport...

...On the contrary, they contend that evidence results from the suspect's statements...

...Gangland murders are of course a different proposition, but professional killers will keep their mouths shut in any event and they know all about their right to counsel...

...And today, a month after the Miranda decision that was to have bankrupted law enforcement, nothing of the kind appears to have happened...

...Of course, as one jurist put it, "due process is in part what is feasible,' and if the Court had been convinced by the massive effort of the enforcement people that not just some but many guilty people would go free, that law enforcement in general would be jeopardized, further confession restrictions would not have been imposed after Escobedo...

...But in the latter event, the problem of the police is not so much the Miranda decision as a less publicized ruling made three years ago in the Wong Sun case...

...More significantly...

...The day after the decision, James Vorenberg, executive director of the National Crime Commission, suggested that the effect of Miranda might be merely to set up a new kind of "swearing contest" between the cops and the suspect centering on the question of whether the waiver was valid...

...Last month it ran out...

...For in the examples cited, the "suspect" is generally picked up as part of a roundup and thus should not be in the squealroom in the first place...

...Many of the murders are committed in barrooms or in the heat of a family fight...

...It was not clear that they had to warn a suspect of his right to counsel or offer him a state-paid lawyer...

...The third, and perhaps most important, is that many suspects confess when the police have the goods on them...

...On June 13 the Court decreed a Magna Carta for suspects, a virtual Requiem for the Squealroom...

...Attorney General Nicholas Katzenbach thinks so, although he had tried to convince the Court to reverse Escobedo...

...In narcotics offenses, for example, the suspect is usually inveigled into selling junk to an undercover policeman...

...In short, the manuals make clear how dishonest it had always been to talk in terms of a "voluntary" confession...

...And this "heavy burden" should be a lot easier to enforce than the police may now believe: As soon as the police finish with the suspect he is brought to court for arraignment and offered a lawyer by the magistrate...

...That this is not insoluble is suggested by the experience of Chicago, which raised its clearance rate to 43.8 per cent by sharply raising the proportion of its force actually engaged in investigating crime...

...Burglars and robbers are sometimes caught red-handed either because an informer has tipped-off the cops or the culprits are clumsy and are heard or seen...

...If the disparity between the number of people "waiving" counsel in the station house and those waiving in court is great, the Supreme Court, drawing the obvious conclusions, can simply declare that a suspect needs a lawyer to waive a lawyer -which will mean the end of interrogation without counsel...

...As Professor Kamisar neatly puts it: "There are so many factors which account for an increase in crime statistics, that all we can really talk about is a crime reporting wave, not a crime wave.' If nothing else proves the treachery of crime statistics the recent New York City experience should...

...If police are not warning them properly, it would be nice to hear them admit it...

...Murders don't happen on Times Square in front of thousands of witnesses," was one version of this line...

...The police check the rogues' gallery and the parole lists, and then "pick up" a number of possible suspects...

...The judge shook his head, closed his eyes symbolically, and you knew sitting there that he knew...

...Or there may be only one eyewitness, challengeable before a jury...

...Should the police persist in efforts to circumvent Miranda, it may be a reflection of their experience in the lower courts...

...The contention that in the station house lawyers will surely tell their clients to keep quiet may be true, but not very relevant...

...Or a burglar who sneaks in through a window, is confronted by the homeowner, kills him and walks away safely into the night...

...The process is simply moved from the backroom-where the suspect bargains alone-to the D.A.'s office, where he as well as the state has a bargaining agent...

...While the 5-4 opinion, written by the then Justice Arthur J. Goldberg, contained a blast at the confession system, it did not spell out guidelines for the police...

...Taken together, these specifications differ radically from general practice, even since the famous Escobedo decision in 1964...

...Experience over many years shows that an extraordinary majority of suspects accept the offer of counsel in court...

...But since few suspects had importunate lawyers outside the door, the ruling was statistically almost inconsequential...

...But then why is it so much higher than even an inflated confession rate figure...

...That decision dismissed Danny Escobedo's statement implicating himself in the murder of his brother-inlaw because the police had elicited it without advising him of his right to remain silent and after refusing him permission to see his lawyer, who was demanding to get into the interrogation room at the time...

...Admittedly, there are some situations where there is probable cause to make an arrest but little or no proof...

...Since they will scream to the heavens if they are forced to set free suspects arrested with valid probable cause, we can assume-in the absence of such specific police protests-that those who walk free were apprehended in roundup or "hunch" arrests...

...Man,' the defendant said, "Man, don't you dig, don't you get it...

...The device served a double purpose: It kept the crime rate down and raised the clearance rate, which generally reflects the ratio of arrests to crimes and long has been a source of police embarrassment...

...Because of the paucity of field work and scholarly study in this area, and the complete lack of reliable police statistics, no definitive answer can be given...

...So now, with all police departments presumably warning suspects and offering counsel-and some, like New York, warning elaborately from a mimeographed instruction sheet-why have we not heard about killers, rapists, muggers and burglars walking freely out of the precinct houses...

...Even murders are often witnessed, or produce other tell-tale evidence, as is suggested by Chief Piersante's statistic that confessions were needed in only 9.3 per cent of Detroit's cases...

...Because the "suspect" is usually poor and ignorant (and in major urban centers, Negro or Puerto Rican), with a prior record, the police begin with little or no respect for him or his rights...

...This sounds incontrovertible, more impressive even than the police dictum after Escobedo that "any suspect worth his salt" would remain silent if he were advised of his right to do so...

...For one thing, a suspect who refuses to waive his right to counsel in the squealroom is not a likely confessor...

...This could become the great "sleeper" case in the confession area...

...Since the national clearance rate is about 25 per cent and the conviction rate well over 90 per cent, it should be clear incidentally that the real problem of the police is finding suspects to arrest, not in convicting those they find...

...There are a number of possible answers...

...The police have always denied that most confessions result from confronting suspects with evidence...

...but if their efficiency is so much as questioned, the same officials will then "prove" that the city is safe and they are the "nation's finest...

...But the implications of the decision were clear enough to induce a number of police departments - notably not New York's-to inform suspects of their rights and offer them free lawyers...

...But he ruled the confession "voluntary" and the fellow is still doing life...

...In a 5-4 decision, the Justices laid down guidelines for police interrogation that not only stunned the enforcement establishment but drew a respectful whistle from libertarians long used to disappointment...

...Still, despite repeated cases of flagrant police abuse over the years, the Court until now had not seen fit to devise strong rules to protect suspects...

...One answer to this contention is that law enforcement has not apparently suffered even though, according to the police, the Court has drastically reduced the interrogation opportunity...

...And it is said, though not in the Bible, that the police chief took one look at the sentence -immunity from assassins, a land of his own and a life away from the parents-and cried out: "We might as well close up shop...

...Moreover, it is in precisely these cases-a brutal rape, mugging or murder-that the press clamors for an arrest...

...Only he did not do it, and another man, Richard Robles, was convicted of the slayings (there are many who question that one, too...

...Only if he freely, knowingly and intelligently waives these rights may they interrogate him to exact a confession or other incriminating statements...

...Indeed, these cases are the classic examples cited by prosecution doomsayers as "proof" that the skies will fall if we permit lawyers into the interrogation room...

...The assistant district attorney, in an effort to destroy the youth's credibility, asked him why there were no marks on him when he was examined by the jail doctor, a few hours after the interrogation...

...The Court heeded pragmatic arguments in refusing to make Miranda retroactive...

...While this guarantee (like the others in the Bill of Rights) makes enforcement more difficult and results in some guilty people going free, it is the price of a free society...

...The devices include the old Mutt and Jeff routine where Jeff (the "buddy") saves the suspect from Mutt (the "heavy...

...Typical is a rape or a mugging, where the victim has little idea of the attacker's identity...

...For instance, an arrest can legally be made on the basis of an informer's tip alone (providing he is a reliable informant, meaning that he has given good tips in the past...

...What seems to have been more influential with the Miranda majority were the police interrogation manuals...

...Indigents, moreover, must be offered state-paid counsel...

...In fact, the Court anticipated the possibility of police perjury in the Miranda opinion by emphasizing that the "heavy burden" of proving both the warnings and the waiver rests on the prosecution...

...In another recent case, a man confessed to a murder that happened when he was in jail...

...The most famous was the Whitmore case, cited in the Supreme Court's opinion last month, in which George Whitmore, Jr., a then 19-year-old Negro, gave a 61-page "confession" in 1964 to the sensational double murder of career girls Janice Wylie and Emily Hoffert...

...I vividly recall covering one case in which the defendant, a young Negro named David Coleman, testified that the policemen, using the heels of their palms, had hit him simultaneously on the back and front of his head until he "felt like my head was coming off...

...Thus, whenever the police want money, or are faced with new court restrictions, they "prove" a new crime increase...

...Either because they believe the confession is true and do not care about its volition, or simply because they do not have the guts or desire to call the police liars, lower court judges are particularly prone to take the word of the police, no matter what the realities appear to be...

...It may be argued that it is too early to assert a trend, yet in a month this country sees close to 1,000 murders, even more rapes, and crimes against property that boggle the adding machine...

...This has often worked well for the police, especially in intimidating the courts...

...If he did not commit the crime he is likely to be uncooperative and the cops' lack of respect will at times be physically indicated...

...The fact is that about 80 per cent of murders (and, incidentally, perhaps 75 per cent of forcible rapes) occur among "friends" or at least acquaintances...

...In May, covering the State Attorneys' General convention in Cleveland for the New York Times, I found a clear consensus that the warnings made no real difference in the confession rate, thus confirming the New Jersey and Detroit experience...

...Again the prosecutors answer that the plea rate is based on confessions...

...On the other hand, the dominant cry was uttered by Justice Harlan...

...It is a seldom contested dictum attributed to the late Justice Robert Jackson, that "any lawyer worth his salt" will tell a suspect to say nothing to the police...

...In four cases, including most sensationally that of convicted rapist and kidnapper Ernesto Miranda, the Court ruled essentially that as soon as a person is taken into custody, or deprived of his freedom in any significant way, the police must warn him of his right to remain silent and have a lawyer...

...Some things have changed: the business of punishment, for instance, now being closer to an-eye-for-aneye...

...None the less, the Court probably would not have moved so quickly or so sweepingly in the confession area were it not for the attempt by prosecutors and police officials to mobilize public pressure for lax confession rules and thereby indirectly change one vote on the Court after Escobedo...

...Nor was it clear at what point a man had a right to retain counsel, and the ruling did not really explain criteria for "intelligent waiver...

...As police are now admitting, even where there are no witnesses, the slayer in such cases will usually give himself up...

...In the past year or so, New York district attorneys had to dismiss a handful of murder indictments based on confessions so detailed that "only the killer could have known...

...But the purpose of Miranda was to corroborate the right against self-incrimination...

...Professor Yale Kamisar of the University of Michigan Law School, one of the shrewdest commentators on the criminal law scene, only wryly remarked that the police always deny misconduct now...

...Even the police admit that squealroom abuses, whether physical or mental, are an old story...

...Nevertheless, there is a category in which confessions are necessary for the police: when the suspect is illegally arrested...

...The major targets were Justices William J. Brennan Jr., who had voted with the five-man majority in Escobedo and Abe Fortas, who replaced Arthur Goldberg...

...The results were spectacular, with some crimes more than doubling within 60 days...

...These wonderful Kafkaesque documents, presumably used by many cops, tell "the hunter" how to "stalk his prey...

...But it has been running low for the past few years...

...But no matter what evidence is adduced that confessions are not crucial to enforcement, we can expect the police to attempt to circumvent Miranda...

...It is the roundup cases which frequently produce the "bad" confessions that periodically embarrass the police...

...The first indication that this was not hurting police work-despite dire predictions by top police officials-came last November...

...And once the lawyer, free or retained, appears on the scene, he has a right to be present during the questioning and may advise the suspect to say nothing...

...They will mention a woman being raped on a dark street by a masked marauder who leaves the scene without dropping a particle of evidence...

...In New York, for instance, the police did not give the warnings to suspects after Escobedo, thus putting every confession in jeopardy...

...In agreement are many responsible enforcement officials...

...Can they live with it...

...A few months ago the new police commissioner, Howard R. Leary, ordered his men to report all crimes, hiding nothing...

...Or a mugger hitting from behind and stealing a wallet...

...Isn't it plausible to suppose that "any lawyer worth his salt" would have contested a confession after Escobedo-unless the prosecution had a strong enough case without it...

...This last suggests that the "need for" (if not the number of) confessions has been "vastly overplayed" by the police...

...Here a confession might make a successful prosecution possible...

...Still, it is probably a safe assumption that in a large number of instances police have substantial evidence before they begin questioning the suspect, though they generally seek a confession anyway to "nail down" the case...

...In the near future we should acquire a standard for judging whether it is in these cases, principally, that the police have been upset by Miranda...

...Chief Justice Warren used those very words in the four cases decided last month, pointing out that in each the police had developed considerable independent evidence through standard investigative techniques...

...For some reason, the enforcement establishment was convinced that the two judges, long dependably libertarian on criminal issues, were crumbling under public pressure...

...But how meaningful is it in light of the high rate of "judicial confessions,' which is what a guilty plea is and which almost invariably is entered with the advice of counsel...

...they are quick to admit that it happened regularly 30 years ago...

...Law enforcement officials have always orchestrated the figures and played them as a fabulous concerto in numbers that served varying purposes, depending on the occasion...

...And with all the doubts about the validity of confessions in the last few years, particularly after Escobedo, one would think that lawyers would have insisted on trials in confession cases, particularly when the confession is the essence of the prosecution...

...Car thieves are nearly always caught in the stolen vehicle...

...The enforcement establishment has maintained that "probable cause"-broadly speaking, reasonable grounds to believe a person has committed a crime-is often inadequate to warrant an indictment: that an opportunity to elicit statements from the accused is needed...

...If this is not due to the fact that in general people confess because the proof of their crime is staring them in the face, either the cops are not effectively warning them of their rights, or suspects want to get it off their chests...

...One very significant indicator of the effects of the new ruling will be the number and rate of guilty-pleas-at present around 90 per cent of all criminal cases in many jurisdictions...

...Yet there has always been a "crime wave," and the apparent recent statistical increases ignore many important considerationsincluding, most conspicuously, the vast postwar expansion of the age group (15-24) most prone to crime...

...and if it's merely that people are anxious to confess, then Miranda is irrelevant and the police ought to stop worrying...

...THE POLICE AND THE SUPREME COURT Requiem for the Squealroom By Sidney E. Zion And it came to pass that Cain, after a confrontation with the Great Interrogator, quickly confessed, pleaded guilty, and took parole to the land of Nod on the east of Eden...

...But it understandably was not convinced...

...Pursuing this most dubious belief, the establishment literally drove the Court to accept new cases, to give the police "needed guidelines" that would clear the ambiguities of Escobedo...

...Dissenting in Miranda, he accused the majority of indulging in "dangerous experimentation" at a time when "it is common knowledge" that the country is experiencing a "high crime rate that is a matter of growing concern.' Or, as it is often put, why should we take any chances with law enforcement procedures at all in the midst of a "crime wave...

...There the Supreme Court outlawed incriminating statements made immediately after an illegal arrest...

...Brendan Byrne, a forthright prosecutor in Essex County, New Jersey (which includes Newark), reported that the rate of confessions had remained stable although the cops had been giving warnings to suspects since Escobedo, nearly a year-anda-half before...

...Crime statistics have always been an inside joke, a near absurdity to criminologists, sociologists, and like cognoscenti...

...If, however, he wishes to confess after conferring with the lawyer, there is good reason to believe-in the light of the high plea rate-that his attorney would work out a plea with the prosecution...