After Escobedo

In one landmark decision after an other, the Supreme Court has been extending the constitutional rights of state criminal defendants. Such decisions frequently confront lower courts with two puzzling questions: Do they apply to all crimes? Do they apply retroactively to already convicted criminals?

Latest case in point is Escobedo v. Illinois. In 1960, Chicago police questioned a 20-year-old Mexican laborer named Danny Escobedo until he admitted complicity in his brother-in-law's slaying. The police never advised Danny of his right to remain silent; he was not allowed to consult his lawyer. Because the lawyer had previously told him not to talk, however, Danny's confession was ruled voluntary. He was sentenced to 20 years for first-degree murder. The state's highest court also saw the confession as voluntary, and refused to toss it out merely because Danny was denied counsel when he made it.

In reversing Danny's conviction last

June,*the Supreme Court sharply extended the right to counsel by ruling that it begins when police start grilling a prime suspect. Suspects are now entitled to the physical presence of a lawyer as soon as "the process shifts from investigatory to accusatory--when its focus is on the accused and its purpose is to elicit a confession." And predictably, state courts have already found themselves grappling with Escobedo's scope and retroactivity. Items: > In Providence, Escobedo has just reached down as far as traffic offenses in the case of Jose Gonsalves, 33, a Portuguese alien, whose car was involved in a collision at a Providence intersection. A policeman asked Gonsalves if he had stopped before proceeding with caution past a flashing red traffic light. When Gonsalves said no, the cop issued an on-the-spot summons. Because the cop failed to warn Gonsalves that he did not have to answer and could consult a lawyer, Police Court Judge Peter K. Rosedale sprung him. Escobedo, said the judge, reaches "even overtime parking. I feel such misdemeanors are, in a technical sense, crimes. The same constitutional rights apply to the most minor misdemeanor as to the most serious felony." > The California Supreme Court has just refused to apply Escobedo retroactively in a murder case. The court saw Escobedo as aimed at "drying up sources of coercion in the future," but not applying to prisoners convicted before the decision. "To require a general release of prisoners of undoubted guilt would be to cripple the orderly administration of the criminal laws." The New Jersey Supreme Court has made a similar decision. Whether the U.S. Supreme Court agrees remains to be seen.

*He was released in August for lack of any evidence corroborating his now inadmissible confession. Last week he filed a suit against the police for violation of his civil rights during 4 1/2 years in jail.

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