Charles W. Whitebread, a faculty member of the FBI Police Academy for 12 years and now a law professor at the University of Southern California, recently noted in The Judges' Journal that "with the appointment of Sandra Day O'Connor to take the place of Justice Potter Stewart," the Supreme Court is "not only willing but eager to accommodate what it perceives as the needs of effective law enforcement."
A majority of this court, according to such of its critics as Whitebread, has been engaging in a cost-benefit analysis of the Constitution. The exercise of even a fundamental right has to be weighed against the cost to society's interest in protecting itself. A clear illustration of how the formula can be applied is a case out of Tennessee that was decided last year. An unarmed 15-year-old fleeing from a burglary was shot and killed by a police officer who did not believe the boy was armed. O'Connor was in the minority on this one. In maintaining that the officer was entitled to use all necessary means to stop the escaping suspect, she explained that "public interest in the prevention and detection of serious crime" outweighed the claim that the officer had committed an unreasonable "seizure" in violation of the Fourth Amendment.
This was too cold a scale for Justice Byron White. "It is not better," he said, "that all felony suspects die than that they not escape."
In a recent case, however, White joined O'Connor to help form a 6-to-3 majority in another cost-benefit analysis of the Constitution. O'Connor is usually in the majority in these opinions. The case, Moran v. Burbine, concerns Brian Burbine, a 20-year-old with a fifth-grade education who was arrested for breaking and entering. It was then learned by a police offcer that Burbine was also a prime suspect in a murder.
Meanwhile, Burbine's sister, aware only that he was in trouble for alleged breaking and entering, called the Public Defender's Office and secured a lawyer for her brother. The lawyer called the police station and asked if Burbine was going to be questioned or put into a lineup that night. If so, she would come over. No, the lawyer was told, "We're through with him for the night."
About 40 minutes later, Burbine, after having earlier refused to waive his rights, began to be questioned by five police officers. Carefully, they first gave him his Miranda warnings, and he signed a waiver relinquishing his rights to remain silent and to have a lawyer present. He confessed to the murder. As the night went on, Burbine was given Miranda warnings twice more as he continued to add details to his confession. He was never told a lawyer had called on his behalf.
Burbine, sentenced to a life term for first-degree murder, appealed. He had been denied an attorney -- and by police deception yet. Eventually, the First Court of Appeals agreed with him, ruling that the confessions should be suppressed because he had not waived his rights "knowingly and intelligently." By not telling him that a lawyer was available, the police had deprived him of knowledge he needed to make that decision.
Justice O'Connor, while finding the police deception distasteful, saw no reason why the confessions should not stand. Burbine, after all, had been given his Miranda warnings. She did concede that it might have been useful to him to know that his lawyer had telephoned, but O'Connor said, "We have never read the Constitution to require that the police supply a suspect with a flow of information to help him calibrate his self-interest in deciding whether to speak or stand by his rights."
Imagine Justice Louis Brandeis' reaction to "calibrate."
It's all a matter of computing costs and benefits. There would only be a "minimal benefit," O'Connor pointed out, in requiring that a suspect be informed a lawyer was trying to reach him, but such a rule would come "at a substantial cost to society's legitimate and substantial interest in securing admissions of guilt."
In dissent, Justice John Paul Stevens, also speaking for William Brennan and Thurgood Marshall, agreed that relaying the message from the lawyer would decrease the likelihood of confessions. "This is certainly a real cost," Stevens added, "but it is the same cost that this court has repeatedly found necessary to preserve the character of our free society and our rejection of an inquisitorial system."
But that was then. President Reagan and Edwin Meese have had a chance to make only one appointment to the Supreme Court, but they sure made that one count. Last week, when the court, zigzagging, decided that defendants cannot be interrogated once they ask for a lawyer at their arraignment, O'Connor was in dissent. Over the long run, however, she's a winner.