A Backlog for Lawyers

Coping with its own backlog, the Supreme Court also issued significant decisions on the rights of suspects. PRELIMINARY HEARINGS. The fate of a suspect may be shaped at a preliminary hearing, where a judge weighs the available evidence in order to decide whether to hold or release the accused. Last week the court ruled that suspects brought before such preliminary hearings must have lawyers present.

Earlier rulings already entitle indigent suspects to court-appointed lawyers at police interrogations and lineups. If lawyers are excluded, the court has ruled, the defendant's remedy is clear: any evidence that police turn up is inadmissible at his trial. The presence of a lawyer at a preliminary hearing is even more crucial. If a lawyer is not present at a hearing, the absence of his counsel is hard to make up later on; he might have got the charges dismissed or at least discovered key elements in the prosecution's case. Last week's ruling recognized for the first time the importance of affording defendants a chance to have such an active defense. Speaking for the majority, Justice William Brennan declared: "Plainly, the guiding hand of counsel at the preliminary hearing is essential to protect the indigent accused against .an erroneous or improper prosecution."

The decision could increase court congestion by turning preliminary hearings into minor trials. It could also have the opposite effect. To avoid exposing their cases, prosecutors could in many cases skip preliminary hearings entirely, taking their cases directly to a grand jury, which could then issue an indictment and immediately launch a trial.

Whatever the effect, Chief Justice

Warren Burger viewed the decision with extreme distaste. In dissent, he argued that the Constitution guarantees the right of counsel only during "criminal prosecutions," which for him do not include preliminary hearings. Implying that the court's previous decisions on the subject were shaky at best, Burger said: "I will not join in employing recent cases rather than the Constitution to bootstrap ourselves into a result. By placing a premium on 'recent cases' rather than the language of the Constitution, the court makes it dangerously simple for future courts to operate as a 'continuing constitutional convention.' " SEARCHES. Police can seldom search and seize private property without a warrant. One longstanding exception permits searches "incident to" an arrest. Last week the court made clear another exception: when police have reason to search an automobile. Evidence in cars is highly perishable, the court said, because a car can rapidly be driven away. The court emphasized, however, that this rule does not apply to houses. In a separate case, it said that even though a suspected narcotics dealer was arrested just outside his house, the police needed a warrant to search inside. That raised the possibility that suspects can avoid having their homes searched by simply stepping outside before an approaching policeman collars them.

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