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Jewish World Review Oct. 7, 1999 /27 Tishrei, 5760

Linda Chavez

Linda Chavez
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Lock 'em up or release on a technicality --- Justice Dept. can't decide -- WHY IS THE U.S. JUSTICE DEPARTMENT twisting itself into a pretzel to avoid enforcing the law? The law in question has nothing to do with campaign finances, and the case involves no allegations against anyone in this administration, so partisan politics doesn't explain the Justice Department's position.

At issue is a 31-year-old statute passed by a Democrat-controlled Congress and signed into law by a Democrat president. The law, 18 U.S.C. 3501 -- or 3501, for short -- permits prosecutors to use defendants' voluntary confessions in federal prosecutions. The current controversy concerns the law's application in a criminal case involving a voluntary confession by a serial bank robber.

The defendant in the case, Charles Dickerson, admitted committing several bank robberies in Maryland and Virginia, and was prosecuted by the U.S. attorney's office for the eastern district of Virginia. The lower court, however, ruled that Dickerson's voluntary confession could not be admitted as evidence against him, because he made it before being fully read his rights by federal law-enforcement officers.

The 4th Circuit Court of Appeals, however, overturned the District Court's ruling, on the basis that the defendant's confession was completely voluntary -- and therefore, constitutionally permissible. You would think the Justice Department would be overjoyed that its lawyers could now use Dickerson's confession and win a conviction that would put an armed bank robber in jail. Think again.

The Justice Department can't make up its mind whether its job is to put dangerous criminals behind bars or to set them free on a technicality. So, last week, the department asked for more time to respond to a petition by defendant Dickerson to the U.S. Supreme Court. Dickerson's lawyers argue that the 4th Circuit decision is inconsistent with the 1966 Supreme Court ruling in Miranda v. Arizona and that Congress had no right to enact a law that, they claim, attempted to 'overturn' Miranda. The Justice Department has made it clear it agrees with Dickerson -- a position that jeopardizes several pending federal prosecutions.

The Miranda decision has become so familiar, virtually every school child can recite the so-called Miranda warning: "You have the right to remain silent. If you choose not to remain silent, anything you say can and will be used against you in court. You have a right to consult with a lawyer before you are questioned, and may have one with you during questioning. If you cannot afford a lawyer, one will be appointed for you, free of charge, and so on."

Far less well-known are the Supreme Court's own rulings in Miranda, and subsequently, that such warnings are "not themselves rights protected by the Constitution, but instead measures to insure that the (suspect's) right against compulsory self-incrimination (is) protected." The Constitution forbids coerced confessions, but it does not require that a person accused of a crime be read a specific warning in prescribed language -- television police dramas notwithstanding -- before he can confess to the crime.

But the Clinton Justice Department is clearly uncomfortable with this interpretation of the Court's rulings, and more specifically, with the so-called 3501 provisions of the U.S. criminal code, which provides "a confession ... shall be admissible in evidence in federal prosecutions if it is voluntarily given." Now, the Justice Department must decide whether to argue that 3501 itself is unconstitutional, which could present major political problems for an administration that claims to be tough on crime.

The case has already resulted in one significant casualty: An 18-year veteran Justice Department career lawyer resigned earlier this year in protest over the department's failure to invoke 3501 in arguments to the 4th Circuit in the Dickerson case. Indeed, an outside group, the Washington Legal Foundation, was left to make the winning argument to the Appeals Court that Dickerson's confession was admissible because of the law.

In the Dickerson case, the Justice Department is behaving more like the criminals' lawyers than the people's chief prosecutor.

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©1999, Creators Syndicate