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Professor Marjorie Cohn
Thomas Jefferson School of Law
JURIST Contributing Editor

The use of torture to obtain information from suspects has become an important topic in fighting the war on terror. In December, for example, the Washington Post reported that CIA officials at Bagram air base in Afghanistan used interrogation techniques that could constitute torture.

In Chavez v. Martinez, decided May 27, the United States Supreme Court was presented with a golden opportunity to address the issue of torture in the context of a 42 U.S.C. ァ1983 claim against police. Acting like a deer staring into the headlights of an oncoming truck, the high court failed to take decisive action. The facts of this case were egregious.

Oliverio Martinez was riding his bicycle to his girlfriend痴 house when two Oxnard police officers ordered him to dismount, spread his legs, and place his hands behind his head. A frisk of Martinez yielded a knife and an altercation ensued. Martinez was shot five times, leaving him paralyzed and blind.

On the way to the hospital and in the emergency room, Officer Ben Chavez repeatedly interrogated Martinez. In response to Chavez questions about what had occurred during the altercation with the officers, Martinez said several times, 的 am dying and 的 am choking. At one point, Martinez told Chavez, 的 want them to treat me, and he later asked Chavez, 鄭ren稚 you going to treat me or what?

The District Court found that Martinez 塗ad been shot in the face, both eyes were injured; he was screaming in pain, and coming in and out of consciousness while being repeatedly questioned about the details of the encounter with the police. Martinez admitted taking the officer痴 gun and pointing it at the police; he also admitted that he regularly used heroin. At no time did Chavez Mirandize Martinez, who was never charged with a crime.

Both of Martinez痴 constitutional arguments, violation of his Fifth Amendment privilege against self-incrimination and violation of his Fourteenth Amendment due process rights, were sustained by the Ninth Circuit Court of Appeals.

The U.S. Supreme Court was so fractured it produced six separate opinions. Six justices agreed that Martinez could not recover against Chavez for violation of Martinez痴 privilege against self-incrimination, since he had not been criminally prosecuted. Five justices, writing for a Court unable to agree on whether Martinez痴 due process rights had been violated by Chavez, punted that issue back to the lower court.

It is well-settled that police methods so brutal and offensive to human dignity that they shock the conscience violate the due process clause. Justice Clarence Thomas, writing also for Chief Justice William Rehnquist and Justice Antonin Scalia, was satisfied that Chavez痴 interrogation of Martinez did not constitute a due process violation. Thomas admitted that 菟olice torture or other abuse that results in a confession is [not] constitutionally permissible [even if] the statements are not used at trial. Thomas痴 denial of Martinez痴 due process claim, however, is an implicit rejection of the notion that police used torture to elicit statements from Martinez.

Three justices John Paul Stevens, Anthony Kennedy, and Ruth Bader Ginsburg discussed this case with reference to torture. Stevens felt so strongly that Chavez痴 conduct rose to the level of torture, he began his separate opinion with the following words: 鄭s a matter of fact, the interrogation of respondent was the functional equivalent of an attempt to obtain an involuntary confession from a prisoner by torturous methods.

Kennedy wrote separately: 鄭 constitutional right is traduced the moment torture or its close equivalents are brought to bear. Constitutional protection for a tortured suspect is not held in abeyance until some later criminal proceeding takes place. These are the premises of this separate opinion. In Kennedy痴 words, Martinez痴 澱linding facial wounds made it impossible for him visually to distinguish the interrogating officer from the attending medical personnel. The officer made no effort to dispel the perception that medical treatment was being withheld until Martinez answered the questions put to him Martinez begged the officer to desist and provide treatment for his wounds, but the questioning persisted despite these pleas and despite Martinez痴 unequivocal refusal to answer questions.

Justices Stevens and Ginsburg agreed with Kennedy, who wrote that 都evere compulsion or even torture violates the right against compelled self-incrimination, and that the 砥se of torture or its equivalent in an attempt to induce a statement violates an individual痴 fundamental right to liberty of the person, a violation of due process.

In her separate opinion, Ginsburg cited with approval Stevens痴 characterization of 溺artinez痴 interrogation as 奏he functional equivalent of an attempt to obtain an involuntary confession from a prisoner by torturous methods. She also quoted E. Griswold in The Fifth Amendment Today, who analogized 鍍he struggle to eliminate torture as a governmental practice with the privilege against self-incrimination, 登ne of the great landmarks in man痴 struggle to make himself civilized.

None of the justices mentioned the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The Torture Convention is an international treaty ratified by the United States and therefore part of our supreme law under the Supremacy Clause of the Constitution. The Convention痴 definition of torture includes any act of a public official, by which severe mental suffering is intentionally inflicted on a person to obtain information or a confession, or to coerce him. Chavez痴 conduct fits the Convention痴 definition of torture.

The justices should not have hesitated to underscore our duties under the Torture Convention. Indeed, Justices Stevens, O辰onnor, and Souter have advanced international law to support their opinions in other cases.

The Supreme Court痴 failure to definitively resolve this case is disturbing. The Court must face the difficult issues arising from the 努ar on terror without trepidation. The same day the Court announced its decision in Chavez v. Martinez, it refused to review whether the hundreds of secret deportation hearings since September 11, 2001, violated the First Amendment, and indeed, the International Covenant on Civil and Political Rights, another treaty ratified by the United States.

Litigators must educate judges about the international jurisprudence that has been incorporated into our domestic law. Jurists must incorporate treaty principles into their decisions. And hopefully, Oliverio Martinez, who was subjected to incomprehensible anguish in that ambulance and emergency room, will receive some relief for his suffering.

Marjorie Cohn, a professor of law at Thomas Jefferson School of Law in San Diego, is executive vice president of the National Lawyers Guild.

June 10, 2003


JURIST Contributing Editor Marjorie Cohn is a professor at Thomas Jefferson School of Law in San Diego, where she teaches Criminal Law, Criminal Procedure, Evidence, and International Human Rights Law. A news consultant for CBS News and a commentator for Court TV, she has co-authored a book on cameras in the courtroom with former CBS News Correspondent David Dow. Professor Cohn has also published articles about criminal justice, international human rights, U.S. foreign policy and impeachment. She is executive vice president of the National Lawyers Guild, editor of the Guild Practitioner and is on the Roster of Experts of the Institute for Public Accuracy. A criminal defense attorney at the trial and appellate levels for many years, Professor Cohn was also staff counsel to the California Agricultural Labor Relations Board. She has lectured at regional, national and international conferences, and was a legal observer in Iran on behalf of the International Association of Democratic Lawyers.

Professor Cohn is a graduate of Stanford University and the University of Santa Clara School of Law.