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Miranda Rights Again Come to Light

November 9, 1999 GMT

LOS ANGELES (AP) _ Some California police departments are circumventing the ``You have the right to remain silent″ Miranda warning by training their officers to question suspects even after they ask for an attorney, civil rights lawyers say.

The lawyers say a training videotape shown to departments statewide represents the latest test of the Miranda ruling, which was handed down in 1966 by a liberal Supreme Court and has been under attack ever since.

Lawyers challenging the tape’s instructions call the tactic shocking. Others defend it as effective _ and legal _ police work.

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``It’s life imitating `NYPD Blue,‴ said Mark Rosenbaum, an American Civil Liberties Union lawyer who is challenging the practice with a lawsuit. The TV show often portrays detectives giving the warning and then continuing the interrogation even after the suspect ``lawyers up.″

The Miranda warning given by police tells suspects they have a right to remain silent and to have an attorney. They are told that anything they say may be used against them in court and if they can’t afford a lawyer one will be appointed for them. But the Supreme Court has never explicitly said the warnings are required by the Constitution.

The practice of questioning suspects even after they ask for an attorney was the subject of a federal appeals court decision on Monday. The 9th U.S. Circuit Court of Appeals ruled that police officers can be sued for engaging in the practice. It said Miranda rights fall under the Fifth Amendment protection against self-incrimination.

The court was ruling in a lawsuit filed in 1995 against the Los Angeles and Santa Monica police departments and officers who questioned two murder suspects even after they invoked their right to an attorney.

The lawsuit, which seeks only token damages and is aimed at stopping the practice, now goes to trial in federal court.

For their part, the officers have argued they are immune from lawsuits because they were acting according to their department training.

``This decision tells them that it’s no defense to say, `Hey, I was trained to break the law,‴ said Charles Weisselberg, a law professor at the University of California at Berkeley who filed the lawsuit with the ACLU and others.

The training in question comes in part from a video titled ``Questioning Outside Miranda.″ In it, an Orange County prosecutor tells officers they have the authority to keep questioning even after suspects ask for an attorney. If suspects try to stay silent, he says, officers should still push them to provide details of a crime or to confess.

``Whether you do it is up to you,″ prosecutor Devallis Rutledge says in the video. ``I don’t tell you what to do. Can you do it? Sure you can.″

He acknowledges the statements will be inadmissible as primary evidence against the defendant. But, he says, such statements could still help detectives recover property, locate other witnesses or find additional evidence.

Rutledge points out that hundreds of cases have been overturned for Miranda violations. ``Did any of those police officers get sued? Zero,″ he says. ``Did any of those police officers get charged with a criminal offense? Zero.″

Rutledge refused to be interviewed. But he has said he will continue his training methods unless told to stop by the Supreme Court. The attorneys in the lawsuit said they do not know whether other states are using the tape.

Jeanette Schachtner, an attorney for the city of Santa Monica, said the use of ``outside Miranda″ questioning is minimal.

``Most people want to talk,″ she said. ``They want to tell the police what happened. A very small percentage actually invoke″ their rights.

She cited cases in which persistent questioning by officers led them to the discovery of key evidence, including bodies or weapons.

``To set a rule that says any time you deviate from Miranda you will be liable to a civil suit will hamper police work,″ she said.

In one of the cases cited in the lawsuit, a detective was quoted as urging a suspect to forgo an attorney. ``No attorney in his right mind is going to tell you, `Talk with the police,‴ he declared. ``I don’t trust anything that anybody tells me after they’ve talked to an attorney.″

As the interrogation continued, Santa Monica Police Officer Shane Talbot ignored a request for an attorney, used an obscenity to describe legal representation and said: ``I don’t care about (your lawyer) anymore. As far as I’m concerned, you know, they really mess up the system.″

Ms. Schachtner said Talbot’s comments were taken out of context from a long discussion. The defendant wanted to talk, she said.

Others see a threat if such questioning continues.

``If nothing is done about it, it’s a great blow to Miranda,″ said Yale Kamisar, a law professor at the University of Michigan and opponent of the tactic. ``Going outside Miranda is simply a euphemism for violating Miranda.″