Taking the Sixth

Even on a Supreme Court that leans to the right on criminal matters, Justice William Brennan has shown a gift for assembling a majority behind liberal decisions. He did it again last week in a 5-to-4 ruling that fortified a defendant's Sixth Amendment right to counsel. In the case of a convicted car thief, Perley Moulton Jr., the court ruled that Maine authorities should not have used as evidence statements he made, after his indictment, in conversation with his alleged partner, a wired government informant.

Prosecutors argued that the exchange had been taped not to obtain evidence in the theft case but to investigate Moulton's alleged threat to kill a government witness. The evidence was therefore legally gathered, they contended, and should be admissible even in his auto-theft trial. But Brennan's majority opinion declared that Moulton had been led into making statements to a police agent without the presence of his lawyer. So those statements could not be used to convict him of any crime with which he was already charged, although they could serve as evidence to convict him of other crimes. In dissent, Chief Justice Warren Burger complained that the court's decision created a new "right" only for offenders who persisted in criminal activity even while under indictment for other crimes. Said the angry chief: "Nothing whatever in the Constitution or our prior opinions supports this bizarre result."