When criminal rights go wrong; forget liberal. Forget conservative. Think common sense.

• Author: Savoy, Paul

Forget liberal. Forget conservative. Think common sense.

It has become one of those commonplaces of bicentennial speeches and Fourth of July orations to cite reports by pollsters that if the Bill of Rights were put to a vote today, a sur- prisingly large number of citizens would fail to ratify some of our most fundamental freedoms. A 1989 survey conducted by The National Law Journal showed that Americans are so fearful about the drug-driven crime epidemic that more than half of those polled who expressed an opinion favored cutting back the constitutional rights of criminal defendants and overruling Supreme Court decisions that limit police conduct in gathering evidence.

When Americans reject the ideals of one of our founding documents, we are urged to believe, as Garry Wills observed on the occasion of the 200th anniversary of the Declaration of Independence, that something has gone wrong with America; that somehow, in failing to subscribe to the Supreme Court's interpretation of certain 18th-century ideals, America "has ceased in part to be itself." What we have failed to consider is the possibility that what may be misguided are the orthodox teachings of the American legal establishment, not the majority opinions of the American people.

The approach of the 200th anniversary of the ratification of the Bill of Rights provides a timely opportunity for the legal profession to consider an unsettling idea: There may be considerable validity to the profound, though poorly articulated, intuition of the public at large that the procedural guarantees of the Constitution are not to be used to undermine a defendant's responsibility for his criminal acts. Because readers will be (and should be) extremely skeptical of the claim that much of what law schools have been teaching and courts have been espousing since the advent of the Warren Court era may be fundamentally flawed, a heavy burden rests with those who would challenge the prevailing orthodoxy. Taking rights too seriously?

Having provided the framework for what was surely the most ambitious and idealistic effort in the history of the Supreme Court to bring the Constitution to bear upon flagrant abuses in the administration of criminal justice, liberals have become willing to accept the assumptions and principles of that 1960s revolution as dogma beyond accountability to serious moral or intellectual inquiry. Deeper and more mature reflection on the history and purpose of the procedural guarantees of the Constitution-including most prominently the Fourth Amendment prohibition of unreasonable searches and seizures and the Fifth Amendment privilege against compulsory self-incrimination-will show that these fundamental rights were not intended, and should not be construed, to protect the guilty.

In 1957, Edgar Smith was convicted of murdering a 15-year-old girl and sentenced to die in the electric chair. High school sophomore Vickie Zielinski had disappeared on her way home from visiting a friend, and her battered body was found the next day in a sand pit on the outskirts of the small New Jersey town where she lived. Her skull had been crushed with a 44-pound boulder, leaving a gaping hole in her head and her brains scattered along the bank.

In 1969, the Supreme Court ordered a hearing to determine if incriminating statements Smith made to police had been obtained in violation of his constitutional rights. Although Smith acknowledged that he had not been mistreated by the police officer who conducted the interrogation, and three psychiatrists testified that the statements were "the result of his free will and rational choice," a federal court in New Jersey ruled the statements were inadmissible because they were obtained under "coercive" circumstances: Smith had not been advised of his right to remain silent or his right to counsel, and his interrogation had extended over a period of more than 10 hours. After 14 years on Death Row, Smith, who continued to assert his innocence, was released from prison because, without his statements, there was insufficient evidence to retry him for first-degree murder.

Five years after his release, in 1976, Smith finally did confess to killing Vickie Zielinski-at a trial in San Diego in which he was convicted of kidnapping and attempted murder after abducting another woman and stabbing her with a six-inch butcher knife as she struggled to escape. "Don't ask me why I did it," Smith later wrote from San Quentin Prison regarding the San Diego attack. "Ask those self-righteous public servants why they gave me the opportunity to do it."

No constitutional controversy has generated as much public furor, nor elicited a more unsatisfying response from the legal profession, than the debate over the rights of people accused of crimes. The notion that criminals have constitutional rights may offend the average citizen concerned about the increase in drug-related crime and gang violence, but every law student soon learns that the common sense of the common man is wrong. The basic premise of our constitutional system of criminal justice is that a defense attorney has the duty to raise every available legal defense without regard to the actual guilt or innocence of his client. If cross-examination can be used to discredit a nervous and easily confused witness, use it, even though you know he is telling the truth. If the evidence has been illegally seized, move to suppress it, even though it establishes incontrovertible proof of your client's guilt. If the eyewit- ness's identification is tainted by an improperly conducted lineup, challenge it, even if the witness has correctly identified your client as her assailant. If the police interrogated your client without advising him of his right to remain silent, move to exclude his confession, without regard to whether it is truthful or whether your client is actually guilty of the kidnapping and murder with which he is charged.

"Defense counsel has no obligation to ascertain or present the truth," explains Justice Byron White in a classic statement of the criminal lawyer's role. "Our system assigns him a different mission.... Land] permits counsel to put the State's case in the worst possible light, regardless of what he thinks or knows to be the truth." If an injustice results, in the sense that a guilty person escapes a punishment he deserves, it results because the Constitution, according to the received view, not only permits it, but requires it. "The constitutional rights of criminal defendants are granted to the innocent and the guilty alike," Justice William Brennan reminds us in a recent affirmation of this fundamental principle of constitutional jurisprudence. Beginning in the early sixties, the...