A couple of weeks ago, shortly after I arrived for a visit in Israel, the parents of a 16-year-old American citizen who will be standing trial for having abetted the horrific arson in Duma that resulted in three deaths in July 2015 visited me. They wanted to know whether their teenage son’s confession while under extended interrogation by Shabak would be held by an American court to be coerced and therefore inadmissible in a criminal trial.
My visitors did not know that I have some impressive ancient credentials to express an opinion on this subject. In 1966, when I was an Assistant to then-Solicitor General Thurgood Marshall (appointed soon thereafter to be a Supreme Court Justice), I wrote the US government’s brief in Westover v. United States — the federal case that was considered by the Supreme Court together with the famous constitutional question in Miranda v. Arizona. These cases produced the landmark Miranda decision that established minimum constitutional standards in the United States for police interrogation of an arrested suspect. (I sat as “second chair” to Marshall at the Supreme Court oral argument of the case.)
In its Miranda and Westover decision, the Supreme Court described the significance of its ruling as follows: “We deal with the admissibility of statements obtained from an individual who is subjected to custodial police interrogation and the necessity for procedures which assure that the individual is accorded his privilege under the Fifth Amendment to the Constitution not to be compelled to incriminate himself.” The Court held that an arrested suspect must be advised of his constitutional rights and granted access to an attorney.
Six years later, in 1972, the Supreme Court accorded me the unusual honor of an appointment to present and argue the case of Don Richard Lego, who had been convicted in an Illinois court of armed robbery. Lego could not afford a lawyer and asked the Supreme Court to appoint a lawyer for him. He claimed that a confession introduced against him at his trial followed a brutal beating with a gun butt that had been administered after his arrest by the local chief of police who was a neighbor and former classmate of the robbery victim. The legal issue that I presented to the Supreme Court as his appointed lawyer was whether the trial judge had to be satisfied beyond a reasonable doubt, or only by a preponderance of the evidence, that Lego’s confession was voluntary and not coerced. A closely divided Supreme Court accepted the lower standard of proof as the constitutional minimum.
I know that Israel does not have a counterpart to the United States Constitution’s Fifth Amendment. Suspects may be interrogated in police custody, and they cannot claim a privilege against self-incrimination. But the principle that an accused’s confession, if coerced, is too unreliable to be accepted by a court as evidence of his guilt is a hallmark of a civilized society adopted by Israeli courts. From my visitors and from published media reports I learned that the Duma-arson prosecutors admitted in court that some of the teenager’s confessions while he was being interrogated by Shabak are not admissible because they were made under extreme torture. But the prosecutors intend to offer other statements he made during his detention because, they say, those were not coerced.
In a 2011 decision the US Supreme Court held that “the age of a child subjected to police questioning is relevant” to deciding whether the suspect’s confession was coerced. A 13-year-old suspected of theft was questioned by school administrators and police in a school conference room for 30 to 45 minutes. The Court began its legal analysis by quoting an observation it had made two years earlier: that “the pressure of custodial interrogation is so immense that it ‘can induce a frighteningly high percentage of people to confess to crimes they never committed.’”
According to published reports of facts acknowledged by Shabak, the teenager in the Duma prosecution was detained by Shabak for 21 days, denied access to a lawyer, and subjected to aggressive interrogation that was admittedly “violent.” He was deprived of sleep, questioned continuously between 8 pm and 3 am. He was slapped, kicked, and punched while blindfolded.
An American court would probably conclude that on these admitted facts, the teenager’s confession would be inadmissible not only because of the technical failure to give him Miranda warnings and allow him access to a lawyer, but also because his confession would be deemed coerced and therefore not reliable enough to be considered as proof of guilt.
The Duma prosecution will unquestionably be viewed as a barometer of Israel’s readiness to prosecute Jews who commit barbarous crimes against Palestinians. But the admissibility of the teenager’s apparently coerced confession tests the decency of the Israeli judiciary. How will the Israeli court rule?
Nathan Lewin is a Washington lawyer with Lewin & Lewin LLP who has argued 28 cases in the Supreme Court of the United States and is on the Adjunct Faculty of Columbia Law School.