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It is hard to imagine that the defendant's confession did not affect the jury in Arizona v. Fulminante, the case that resulted in last week's ruling. In 1982 Arizona police suspected Orestes Fulminante, a convicted child molester, of murdering his 11-year-old stepdaughter, but they lacked enough evidence to arrest him. Eventually Fulminante was arrested on a weapons charge, convicted and sent to a federal prison.
While there, Fulminante began to fear he was being targeted by prisoners who had heard rumors that he was a child killer. Anthony Sarivola, a fellow inmate with a reputation for mob connections, offered to protect Fulminante but demanded to know the full details of the crime. At that, Fulminante admitted he had driven the girl into the desert, forced her to perform oral sex and made her beg for her life until he shot her twice in the head.
What Fulminante did not know was that Sarivola was an FBI informant. On the basis of his talks with Sarivola, as well as a second admission that he made to Sarivola's fiance after both men were freed, Fulminante was brought back to Arizona, where he was tried, found guilty of the girl's killing and sentenced to death. His conviction was overturned by the Arizona Supreme Court, which held that his confession was coerced because it was made under the pressure of a plausible threat of violence. Ironically, despite its ruling that forced confessions could be harmless in some circumstances, the U.S. Supreme Court ordered Arizona to give Fulminante a new trial on the grounds that in his case the introduction of a coerced confession was not a harmless error. Without the two confessions, the prosecution may not have had enough evidence to convict him.
Legal experts disagree on whether last week's ruling will give authorities a freer hand to browbeat suspects. "Many years ago the police became convinced that they don't need violence to get people to confess," says Yale Kamisar, a criminal-law expert at the University of Michigan. But the head-banging style of police interrogation has not disappeared. A dramatic example: the case of Barry Lee Fairchild, a black man with an IQ of 62 sentenced to death for the 1983 murder of a white Air Force nurse in Little Rock. Lawyers for Fairchild, who are pursuing an appeal, say he confessed only after Pulaski County sheriff's deputies put telephone books on top of his head and slammed downward repeatedly with blackjacks. "That leaves no marks but causes excruciating pain," says Fairchild's attorney Steven Hawkins.
Beyond Fairchild's confession there is no evidence, other than a watch, to link him to the crime. Ex-Sheriff Tommie Robinson, who went on to serve as a Democratic member of Congress since 1985, denies Fairchild's claims. But 11 black men who were brought in for questioning in Pulaski County at about the same time as Fairchild gave vivid descriptions of methods used by deputies to obtain confessions. Three said they had pistols placed in their mouth. Officers pulled the trigger. The guns were not loaded, but the point was made.