Confessions That Were Taboo Are Now Just a Technicality

By Richard Lacayo

The shortest route to a conviction is to get the accused to cry out, "I did it." Sometimes police and prosecutors have been tempted to whip the suspect down that road with anything from a subtle threat to a back-room clubbing. For that reason, courts have long held that forced confessions, whether they were obtained by coercion, beating or psychological pressure, could not be used against an accused person in court. Last week, in a ruling that showed just how vulnerable the legacy of the Earl Warren years has become, the U.S. Supreme Court decided that maybe forced confessions were not such an important matter after all.

In a 5-to-4 decision that brought home the importance of substituting Justice David Souter for the liberal William Brennan, the court ruled that the introduction of a coerced confession at trial may be considered a "harmless error." That undoes part of a 1967 decision in which the Justices ruled that when such confessions are introduced as evidence, any guilty verdict that follows must be reversed automatically on appeal. As a result of last week's decision, what was once taboo will henceforth be merely a technicality.

Forced confessions will still not be sanctioned, but that may not mean much for defendants. If a tainted confession is heard by the jurors, it may help persuade them to find the defendant guilty. But the verdict will no longer be overturned automatically -- provided that an appeals court finds that other evidence would have been sufficient to obtain a conviction. Some legal experts fear that the new standard will tempt prosecutors to introduce questionable confessions in borderline cases in the hope that any resulting conviction will be upheld.

For defense lawyers, the timing of the ruling was as unsettling as its substance. It came when the videotaped beating of Rodney King by Los Angeles cops has focused national attention on police brutality. But the decision had a deeper importance for the larger direction of the court. It was the clearest signal yet that Souter has given court conservatives a reliable majority in cases involving the rights of criminal defendants. Says University of Chicago law professor Philip Kurland: "They've finally got enough votes."

Even so, not all the court's conservative members could agree on every aspect of the case. Chief Justice William H. Rehnquist, writing for a majority that included Souter, Anthony Kennedy, Sandra Day O'Connor and Antonin Scalia, argued that introducing an involuntary confession at trial was merely a procedural error. He distinguished such "harmless errors" from "structural defects" such as a biased judge or a denial of the defendant's right to an attorney. Unfair practices of that magnitude, he said, would still trigger an automatic reversal on appeal.

The majority's reasoning provoked a sharp dissent from Justice Byron R. White, who ordinarily sides with the Chief Justice on cases involving criminal procedure. Speaking for himself and Justices Harry Blackmun, Thurgood Marshall and John Paul Stevens, White took the unusual step of reading aloud his own strongly worded opinion from the bench. Confessions are different from other kinds of evidence, White reasoned. Their impact upon a juror's thinking is too powerful.

It is hard to imagine that the defendant's confession did not affect the jury in Arizona v. Fulminante, the case that resulted in last week's ruling. In 1982 Arizona police suspected Orestes Fulminante, a convicted child molester, of murdering his 11-year-old stepdaughter, but they lacked enough evidence to arrest him. Eventually Fulminante was arrested on a weapons charge, convicted and sent to a federal prison.

While there, Fulminante began to fear he was being targeted by prisoners who had heard rumors that he was a child killer. Anthony Sarivola, a fellow inmate with a reputation for mob connections, offered to protect Fulminante but demanded to know the full details of the crime. At that, Fulminante admitted he had driven the girl into the desert, forced her to perform oral sex and made her beg for her life until he shot her twice in the head.

What Fulminante did not know was that Sarivola was an FBI informant. On the basis of his talks with Sarivola, as well as a second admission that he made to Sarivola's fiance after both men were freed, Fulminante was brought back to Arizona, where he was tried, found guilty of the girl's killing and sentenced to death. His conviction was overturned by the Arizona Supreme Court, which held that his confession was coerced because it was made under the pressure of a plausible threat of violence. Ironically, despite its ruling that forced confessions could be harmless in some circumstances, the U.S. Supreme Court ordered Arizona to give Fulminante a new trial on the grounds that in his case the introduction of a coerced confession was not a harmless error. Without the two confessions, the prosecution may not have had enough evidence to convict him.

Legal experts disagree on whether last week's ruling will give authorities a freer hand to browbeat suspects. "Many years ago the police became convinced that they don't need violence to get people to confess," says Yale Kamisar, a criminal-law expert at the University of Michigan. But the head-banging style of police interrogation has not disappeared. A dramatic example: the case of Barry Lee Fairchild, a black man with an IQ of 62 sentenced to death for the 1983 murder of a white Air Force nurse in Little Rock. Lawyers for Fairchild, who are pursuing an appeal, say he confessed only after Pulaski County sheriff's deputies put telephone books on top of his head and slammed downward repeatedly with blackjacks. "That leaves no marks but causes excruciating pain," says Fairchild's attorney Steven Hawkins.

Beyond Fairchild's confession there is no evidence, other than a watch, to link him to the crime. Ex-Sheriff Tommie Robinson, who went on to serve as a Democratic member of Congress since 1985, denies Fairchild's claims. But 11 black men who were brought in for questioning in Pulaski County at about the same time as Fairchild gave vivid descriptions of methods used by deputies to obtain confessions. Three said they had pistols placed in their mouth. Officers pulled the trigger. The guns were not loaded, but the point was made.

Later this year the court is expected to decide several other criminal cases. Among them: Florida v. Bostick, in which the Justices will rule on whether narcotics agents can board a bus and randomly search and question passengers. It is the kind of case that probably would have spurred Brennan's customary defense against unreasonable searches. But Brennan is retired; Souter is in his place; and the long-predicted new era on the court has plainly begun.

With reporting by Julie Johnson/Washington and Elaine Lafferty/Los Angeles