Offense to decency

March 28, 1991

"The use of involuntary verbal confessions in criminal trials," Justice Felix Frankfurter wrote 40 years ago, "is constitutionally obnoxious not only because of their unreliability. They are inadmissible under the Due Process Clause even though the statements in them may be independently established. Coerced confessions offend a community's sense of fair play and decency."

Felix Frankfurter is widely regarded as the patron saint of all conservative justices, but this week five justices who call themselves "conservatives" rejected the reasoning enunciated by Frankfurter. Led by Chief Justice William Rehnquist and followed by four justices appointed by Presidents Reagan and Bush, the court held that the coerced confession may no longer automatically invalidate a conviction in a criminal case.

The body of case law on coerced confessions reads like a medieval chamber of horrors. One thinks of the 1936 case of Brown vs. Mississippi, in which a deputy sheriff conceded that the defendant had been beaten to extract a confession, "but not too much for a Negro. . ." Or the 1944 case of Ashcraft vs. Tennessee, in which a confession was extracted from a suspect after some 36 hours of continuous interrogation by shifts of police. Or the 1952 case of Rochin vs. California, in which a man had a tube forced down his throat to retrieve evidence from his stomach to use against him. Or the 1961 case of Rogers vs. Richmond, in which three police officers extracted a confession from a man by threatening to arrest his wife.

We could go on in citing what Justice Byron White, one of the four dissenters in Monday's decision, called "a vast body of precedent" which has now been overruled by the Rehnquist court.

Oh, one might say, but times have changed. No longer do police do such things. Oh? Try telling that to Rodney King, the man whose beating by a dozen Los Angeles police officers was videotaped for the world to see.

The trend of the Rehnquist court is unmistakably clear. It is a trend which is clearly away from what former Chief Justice Earl Warren described so eloquently as "the deep-rooted feeling that the police must obey the law while enforcing the law; that in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves."

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