Confusion on Confessions

"The greatest thing since the Magna Carta," cheered a New Jersey defense lawyer. "A black-letter day for law enforcement," mourned a Philadelphia prosecutor. Tossing out two New Jersey murder confessions, the U.S. Court of Appeals in Philadelphia had just ruled that even voluntary confessions are inadmissible whenever police fail to tell suspects that they have a right to counsel and to remain silent when questioned.

The new decision came from the highest federal court thus far to expand last June's now famous U.S. Supreme Court decision in Escobedo v. Illinois. In that case the Supreme Court reversed Chicago Laborer Danny Escobedo's murder conviction because he had confessed after the police refused to let him see his lawyer, who was waiting at the station house. Rather vaguely, the court held that the right to counsel begins when police start grilling a prime suspect.

Because 75% to 80% of all convictions for serious crimes are based on presumably voluntary confessions, police and prosecutors have been in a tail spin ever since. And because the Supreme Court has yet to clarify Escobedo with any new decision, some 27 lower courts have groped for the right interpretation. Last year the Illinois Supreme Court took the "hard" approach in People v. Hartgraves. It said that a confession is admissible even though the police do not advise a suspect of his rights to counsel and silence. Last January the California Supreme Court took the "soft" approach in People v. Dorado. It said that police failure to advise the suspect of those rights invalidates his confession even though he made no formal request for counsel.

The U.S. appeals court in Philadelphia unanimously backed the "soft" approach in a decision binding on all courts in Delaware, New Jersey and Pennsylvania. The decision is apparently retroactive: convicted prisoners may now appeal on the ground that their rights were denied even though they confessed voluntarily. The court left police only one loophole: the suspect may "intelligently waive" his rights. Does this mean that he needs a lawyer to tell him what he is waiving? And if grilling now requires the physical presence of a lawyer, will he not obviously advise his client to remain silent? Possible result: no more valid confessions.

In another search for answers, the U.S. Court of Appeals for the Second Circuit (New York, Vermont, Connecticut) last week ordered a review of seven confession cases-by its entire nine-man bench. The Supreme Court itself is likely to wait until next year--when

more lower-court decisions will be in

before it rules on how Escobedo should be interpreted throughout the country.

* Including that of ex-Navy Yeoman Nelson C. Drummond, sentenced to life in 1963 for selling U.S. secrets to the Russians.

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