Still Waiting on Confessions

Why do many Supreme Court decisions breed more confusion than clarification? Because the court, unlike a legislature, is charged with laying down broad principles based on the narrow facts of particular cases. And as Mr. Justice Holmes put it, "Hard cases make bad law." Last week they made confusing law in the court's flurry of reapportionment decisions (see THE NATION), and in its silent refusal to review a crucial California case involving the inadmissibility of voluntary confessions--currently the most confusing issue in U.S. criminal law.

New Principle. The confession problem stems from the court's own decision last June in Escobedo v. Illinois, which voided a Chicago murder confession because the police had refused to let the suspect see his lawyer. Escobedo seemed to establish a new principle: that a grilled suspect has a constitutional right to see his lawyer--and by inference, to be told he has a right to silence. But did the court's ruling mean that police must now advise all suspects of their rights to counsel and silence (a standard FBI rule), lest all voluntary confessions be automatically tossed out of court? No, said Illinois' highest court in People v. Hart-greaves, a decision that the Supreme Court recently refused to review. Yes, said California's highest court in People v. Dorado, a decision that expanded Escobedo by tossing out a murder confession that had been made without a lawyer present--even though the suspect had not asked for counsel.

Last week the Supreme Court refused to review Dorado, despite California Attorney General Thomas C. Lynch's urgent appeal that "the convictions of thousands of dangerous criminals may be in jeopardy under this ruling." The court's refusal may well mean that it wants to see more evidence of Esco-bedo's effects before it makes a final decision, but it leaves police across the country unable to tell whether they should follow the "hard" approach of Hartgreaves or the "soft" approach of Dorado.

New Caution. As a result, conscientious law-enforcement officers are beginning to go out of their way to abide by the rules, while they wait for clarification from the court. In Manhattan, for example, police have been under heavy pressure for months to solve the grisly murders of two women who were stabbed to death in self-service elevators with a total of 52 knife thrusts. Last week the police arrested Charles E. Wright, 21, a Columbia University kitchen helper. But in sharp contrast to previous cases, the cops made no effort to trumpet their triumph. They refused to say whether Suspect Wright confessed, or even whether he has a police record.

A tight-lipped police spokesman attributed this new caution to "the many precedent-making decisions of the higher courts, which resulted in reversals of decisions and the granting of new trials. This arrest is such an instance, where the releasing of information could prejudice a defendant's right to a fair trial." In short, why run the risk of violating constitutional rights, thus giving unwitting aid to guilty men?

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