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Lawyers for the states and the Justice Department implored the court to the contrary. Don't expand the limited Escobedo ruling in ways that handcuff police interrogation, they said. Don't forget society's rights and Benjamin Cardozo's words: "Justice, though due the accused, is due the accuser also." Don't abandon "totality of circumstances" in judging whether confessions are free or coerced. Don't assume that "focus" is workable as an objective test. Don't expect judges to reconstruct just when the focus point was reached or whether the suspect really waived his rights when he talked. Don't add such new confusion that ultimately the only solution will be a truly automatic test: no interrogation without a lawyer.
Supreme Swinger. Indeed, the American Civil Liberties Union, as amicus curiae in all of the cases before the Supreme Court, advocates exactly that test. The A.C.L.U. argues that police custody is inherently so coercive that the suspect's privilege against self-incrimination can be protected only by a lawyer, not by mere warnings from the police, who are his adversaries. In this view, the lawyer's function would not be so much to shut up a guilty suspect as to advise him on his best chances—to say nothing of what the presence of lawyers would do to bolster the faith of the public and potential witnesses in police interrogation.
So far, the best guess of Washington lawyers is that the court may simply require police to warn prime suspects of their rights—partly because the court may now be as closely divided as it was in Escobedo. When Justice Goldberg departed for the U.N., he left eight Justices who had split 4 to 4 in that case. His successor, Justice Fortas, made eloquently clear during the arguments that he views the court's "vexatious, tormented" decision no differently than he did when he was on the other side of the bench winning the right to counsel for Florida Indigent Clarence Gideon. Apparently, much like Goldberg, he sees the cases in terms of the Magna Carta—in terms of human liberty rather than "just convicting people." While that seemed to leave the Justices split about as before, court watchers also noted that Justice William J. Brennan remained conspicuously silent, often the sign of a "swing man" who hopes to engineer a majority vote on a compromise.
Police Pigeon. No one is more anxious for the court to make up its mind than Danny Escobedo, a prime target of Chicago cops ever since the state dropped its case against him in 1964 for lack of any other evidence except his invalid confession. In prison, Danny wrote poetry, learned plumbing, discovered psychology. He walked out with a high school diploma, dreams of a good job, and hopes of suing the police for denial of his civil rights. Hardly anything has worked out.
Last year a Chicago federal judge shot down Danny's suit, ruling that he was not entitled to damages for violation of a right that did not exist before the Supreme Court ruled in his own case. Plagued by his prison record, Danny has drifted in and out of jobs —clerk, waiter,