The Unspoken Confession

The three checks were made out to a San Francisco real estate salesman named Frank H. Graves Jr. Soon after Graves cashed them, police asked him to demonstrate his handwriting. Then he was arrested for forging all three checks in the names of fictitious persons. He was not advised of his rights to counsel and silence; nor was he told of his rights later when the police requested nine more samples of his writing--the clinching evidence that convicted him in 1963.

Until last fall, Graves's conviction would have stood like Gibraltar. But in Escobedo v. Illinois, the Supreme Court ruled that the right to counsel begins when police shift from investigation to accusation. And in People v. Dorado, which the Supreme Court recently refused to review, California's highest state court went even further. It ruled that police failure to advise a suspect of his rights to counsel and silence invalidates his confession even if he does not ask for a lawyer.

Graves never "confessed" to anything; nevertheless his conviction has just been reversed under Dorado. In ruling for Graves, a state district appellate court said that he should have been protected from further self-incrimination as soon as he was arrested.

Instead, he was pressed to make what the court considered to be the equivalent of a confession--more telltale handwriting. "The defendant could not have made a more incriminating statement," said the court. In short, the police should have either delayed Graves's arrest to build their case, or they should have given him his Dorado rights when they did arrest him.

California prosecutors are hotly attacking the Graves decision. To rule out handwriting as evidence, they say, implies a threat to the legality of fingerprints, photographs and police lineups. The Graves decision will be appealed to the California Supreme Court, which handed down the Dorado decision that started all the commotion. Along with an editorial blast at Dorado, the San Francisco Examiner last week ran a cartoon reducing the decision to its ultimate absurdity: a lawyer's claim that his client should be shielded even from the incriminating implications of a court appearance.

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