The Supreme Court's opinion of March 26 in the Fulminante case set off a terrible fluttering in liberal dovecotes. Joe Rauh, the 80-year-old godfather of civil libertarians, called the decision a "horror." The Washington Post found it "frightening." Harvard's Professor Laurence Tribe saw it as "very dismaying." The opinion strikes me as mildly disturbing.
This was a murder case. The constitutional question involved the admission of a confession (actually two confessions) in evidence. A 5-4 majority of the high court agreed that Fulminante's confessions were "coerced." A slightly different 5-4 majority held that the statements should not have been admitted.Still a third 5-4 majority saw an opportunity in this case to say that the admission of a coerced confession is not ALWAYS prohibited; under some circumstances the admission of a coerced confession may be "harmless error."
The upshot of all this is that Arizona may now try Oreste Fulminante a second time for the 1982 murder of his 11-year-old stepdaughter, Jeneane Michelle Hunt. The confessions may not be admitted in evidence.
For more than 50 years, at least since the Ed Brown case of 1934, the high court has been wrestling with the self-incrimination clause of the Fifth Amendment. It says that no person shall be "compelled" in any criminal case to be a witness against himself. What's in the verb?
In the Brown case, a sheriff looked the other way while a Mississippi lynch mob seized a black youth suspected of murder. After Brown had been twice suspended on a rope (though not fatally suspended), he was whipped until he confessed. This was clearly compulsion. A unanimous Supreme Court threw out the conviction.
In the years that followed the Brown case, the court repeatedly looked at that word "compelled." Sometimes the court came down in one way, sometimes in another.
A dozen cases might be cited to suggest the difficulty the court has found in balancing the rights of the accused and the rights of society. Voluntary confessions of course should be admitted in evidence. Coerced confessions should be barred, but let us be certain about the coercion. And if other probative evidence is clearly sufficient to convict, what is so terrible about admitting a shaky confession?
Back to the Fulminante case: The defendant twice confessed to murdering the child, but he was never "compelled" to confess. He spilled his story to a fellow inmate, one Sarivola, in the Ray Brook federal prison in New York. Later he sang again to Sarivola's wife. It turned out that Sarivola was an informer. In any event, Fulminante never was subjected to a third degree by the police. His confessions were not the product of brutality but of guile.
I would not prohibit police from using informers as Sarivola was used in this case. If criminal defense lawyers may treat the law as a game, then two should be able to play. Let us reject any confession obtained by intimidation or torture. But in protecting the rights of the accused, let us remember the rights of 11-year-old Jeneane. She had a right that a murderer denied her - the right to be alive.