AMY GOODMAN: Today on Democracy Now!, an exclusive. We air for the first time the tape of a Los Angeles farmworker being interrogated by a police sergeant after being shot by police five times. Let me read a piece in the Los Angeles Times describing what took place. It begins like this.

“It was early evening on a November day five years ago when Oliverio Martinez, 29 [years old], rode his bicycle down a path and across a vacant lot toward a row of small homes.

“Two officers, Andrew Salinas and Maria Pena, had stopped to question a man they suspected, wrongly it turned out, of selling drugs. When they heard a squeaky bike approach in the dark, they called for the rider to stop.

“Martinez dismounted and put his hands over his head. In a leather sheath on a waist band, he carried a long knife that he used to cut strawberries.

“When the officer patted him down and grabbed for the knife, Martinez tried to run. Salinas tackled him and tried to handcuff him. As they struggled on the ground, the officer called out that the man had a huge knife. Pena moved closer and fired.

“One bullet struck Martinez near the left eye and exited behind his right eye. A second hit his spine. Three more shots hit his legs.

“When patrol supervisor Sgt. Ben Chavez arrived, a handcuffed Martinez lay bleeding on the ground. Once Martinez was loaded into an ambulance, Chavez climbed in with a tape recorder in hand.

“On and off for the next 45 minutes in the ambulance and at the hospital, he repeatedly asked the gravely wounded man to admit he had grabbed the officer’s gun and provoked the struggle. In agony, Martinez is heard screaming in pain and saying he is choking and dying.

“[Chavez asks], 'OK. You're dying. But tell me why you were fighting with the police?’ [He continues], 'Did you want to kill the police or what?' … One officer had said Martinez tried to grab his gun.

“In the emergency room, Chavez continued to press Martinez to tell him what happened.

“’Why did you run from the police?’ Chavez is heard to say over the sounds of nurses and doctors.

“’Did you get his gun? … Did you to try to shoot the police?’

“Martinez in a low voice responds: 'I don't know…. I don’t know.’

“Lawyers for Martinez say he panicked when the officer tried to tackle him, but they say he did not grab the officer’s gun.

“In the emergency room, he is heard asking Chavez several times to leave him alone. 'I don't want to say anything anymore,’ [he said].

“[The sergeant continues], 'No? You don't want to say what happened?’

“’It’s hurting a lot. Please!’ Martinez implores, his words trailing off into agonized screams. Undaunted, Chavez resumes. 'Well, if you're going to die, tell me what happened.’

“Silence came only when pain medication took hold, and Martinez faded into unconsciousness.”

That, from the Los Angeles Times. The Supreme Court has just ruled that the police sergeant did not violate the Fifth Amendment right of Oliverio Martinez. He is now paralyzed and blind.

Today, a Democracy Now! exclusive. We air for the first time a recording of Sergeant Chavez interrogating Martinez while he screams in excruciating pain. The tape has never been broadcast nationally before. We’re going to hear the tape in a minute, but first we’re joined in the studio by Oliverio Martinez’s two lawyers, Samuel Paz and Sonia Mercado, as well as Alan Wisotsky, who is the lawyer for Sergeant Ben Chavez, who speaks to us from Los Angeles.

But we’ll begin with Samuel Paz. And I want to start by asking where Oliverio Martinez is today.

SAMUEL PAZ: Well, he continues to live with his father. They live in — out in the fields in Oxnard, and they are field workers. And that was what he has always done. And so, he continues to live there and is waiting for a resolution of his case.

AMY GOODMAN: The Supreme Court decision, Sonia Mercado?

SONIA MERCADO: Well, I think our opinion is that of Justice Stevens and Justice Kennedy, who found that it was just wrong of Justice Thomas and those who concurred with him that this was not a violation of the Fifth Amendment, and with Justice Stevens, who found that this is one of your classic cases of torture.

AMY GOODMAN: Well, let me put that issue to Alan Wisotsky, the lawyer for Sergeant Ben Chavez. Dissenting Justice John Paul Stevens compared the interrogation to, quote, “an attempt to obtain an involuntary confession from a prisoner by torturous methods.” Your response?

ALAN WISOTSKY: Justice Stevens wrote the dissenting opinion, which, of course, implies that there was a majority opinion, which clearly distinguishes this type of interrogation from that which Justice Stevens alludes. There are very specific guidelines under the 14th Amendment controlling the interrogation of individuals, whether they be suspects, witnesses or bystanders, and that is the controlling amendment upon which this type of behavior is measured.

AMY GOODMAN: I wanted to play the tape that Sergeant Chavez made as he was questioning Oliverio Martinez, who had been shot five times. We’ll listen, and then, Sonia Mercado, if you could do some translation so people understand? This recording is made — maybe you can describe the recording.

SONIA MERCADO: Well, the recording takes place in the emergency room when Mr. Martinez is being taken care of by emergency physicians trying to save his life, and Sergeant Chavez comes in and interferes with that and begins to interrogate.

AMY GOODMAN: Let’s take a listen.

SONIA MERCADO: Mr. Oliverio keeps saying, “I’m suffocating. I’m choking.” Sergeant Chavez keeps asking, “Tell me what happened.” Mr. Oliverio keeps repeating, “I don’t know. I don’t know.” And he yells, “I’m in pain.” And he screams in agony. And he repeats, “Please, please! I’m dying.” And the officer responds to him, “Yes, yes, you’re going to die. So tell me. Tell me what happened.”

AMY GOODMAN: And that is the tape. Right now the Supreme Court has made its ruling, ruling that the police sergeant did not violate the Fifth Amendment rights of Oliverio Martinez. Have they ruled on other amendment rights?

SAMUEL PAZ: Yes. As Mr. Wisotsky was mentioning, the court, a majority of the court, also agreed that Mr. Martinez can go back to the trial court. And if the trial court agrees that the level of coercion, the level of of torture, in which the circumstances at the time the statement was being taken, if that violates the 14th Amendment, then Mr. Martinez would have a right then for compensation for that.

AMY GOODMAN: And explain 14th Amendment.

SAMUEL PAZ: Fourteenth Amendment is basically the due process clause of the United States Constitution, the Bill of — that portion of the Bill of Rights. And it basically protects fundamental, fundamental rights and abuses by government.

Just to step back, though, I think the real tragedy in this case, and the reason that I think most people, most writers and most law professors, and really the entire legal community, is in shock is because — and I’ll just quote from the opinion of Justice Kennedy. And he says, “I submit” — “Justice Souter and Justice Thomas, I submit, should be more respectful to the understanding that has prevailed for generations now. To tell our whole legal system that when conducting a criminal investigation police [officials] can use severe compulsion or even torture with no present violation of the right against compelled self-incrimination can only diminish a celebrated provision in the Bill of Rights.”

AMY GOODMAN: Alan Wisotsky, your response?

ALAN WISOTSKY: Well, there’s more to Justice Kennedy’s opinion that I think goes squarely on point to what Mr. Paz and Ms. Mercado are suggesting. And that is on page nine of his opinion, where he states, “There is no rule against interrogating suspects who are in anguish and pain. The police may have legitimate reasons, borne of exigency,” which means born of urgency, “to question a person who is suffering or in distress. Locating the victim of a kidnapping, ascertaining the whereabouts of a dangerous assailant or accomplice, or determining whether there is a rogue police officer at large are some examples. That a suspect is in fear of dying, furthermore, may not show compulsion but just the opposite. The fear may be a motivating factor to volunteer information. The words of a declarant who believes his death is imminent have a special status in the law of evidence.” So, it has to be viewed on a case-by-case basis, measuring the government’s interests versus the human rights and dignity of the individual being questioned.

AMY GOODMAN: Now, in this case, in fact, there were no charges brought against Oliverio Martinez, were there?

SAMUEL PAZ: No, there were no charges. And all of the examples that Mr. Wisotsky just read, none of those existed. And that’s the tragedy in this case. There was no exigent circumstances. There was no life to be saved. There was no reason to compel, except that the sergeant, Chavez, wanted to build a story to protect the officers who had just shot Mr. Martinez. That was the only purpose for this questioning.

AMY GOODMAN: What about — well, respond to that Mr. Wisotsky.

ALAN WISOTSKY: Well, Mr. Paz has clearly eliminated the one phrase that Justice Kennedy referenced, and that’s determining whether there is a rogue police officer. At the time Sergeant Chavez was interviewing Mr. Martinez, he was under the impression that the only two witnesses other than Mr. Martinez were indeed two police officers. And to allow this dying suspect or individual to leave this Earth without sharing his version or account of what happened clearly was of concern to Sergeant Chavez. And I assure you that had Mr. Martinez died and had Sergeant Chavez not made this inquiry, Mr. Paz and Ms. Mercado would be on the other side of the argument saying they had every opportunity to interview him and get to the truth of the matter, and they failed to do so, knowing that the only witnesses left were police officers.

AMY GOODMAN: Alan Wisotsky’s argument, Samuel Paz, that this was a compassionate act?

SAMUEL PAZ: Right, and that just is as fallacious as it sounds here. The district court also rejected that benign excuse that somehow or other this sergeant was going to go there to try to find out if there had been police misconduct. By listening to the questioning itself, you could see that Chavez is trying to put words into Mr. Martinez’s mouth. He’s preying on this man who is near death. And he’s really taking advantage of the fact that this man is blind, that he’s been drugged, he’s on the operating table, and he wants to extract some confession from this man to protect the other officers. The benign argument was rejected by the district court. It doesn’t fly. It’s just — it’s not to be believed.

AMY GOODMAN: We’re talking to Samuel Paz and Sonia Mercado, the attorneys for Oliverio Martinez, as well as Alan Wisotsky, lawyer for Sergeant Ben Chavez, who interrogated the shot farmworker in the ambulance and in the emergency room. We’ll be back with them in a minute.

[break]

AMY GOODMAN: Public Enemy, “Fight the Power,” here on Democracy Now!, The War and Peace Report. I’m Amy Goodman, continuing with this Democracy Now! exclusive. In the studio with us, Samuel Paz and Sonia Mercado, the attorneys for Oliverio Martinez, who is the Los Angeles farmworker who was shot five times by two police officers, then loaded into an ambulance. A sergeant got in and turned on a tape recorder and interrogated him on the way to the hospital and in the emergency room. His attorney joins us, as well, from Los Angeles, the attorney for that sergeant, Alan Wisotsky.

I wanted to read from a more recent piece in the Los Angeles Times, which says, “After the Supreme Court narrowed the right against self-incrimination, ruling that police and government investigators can force an unwilling person to talk, as long as those admissions are not used to prosecute them. The 6-3 opinion undercuts the well-known Miranda warnings, in which officers tell individuals of their right to remain silent. It appears to allow more aggressive police questioning of reluctant witnesses in the hope of obtaining evidence. While a person’s words cannot be used against him or her in court, evidence can be used.” Samuel Paz, your response?

SAMUEL PAZ: The tragedy is that what this case has done is really taken away a line of cases that were built on facts that you’ve just basically talked about. And that is where people were placed in interrogations, they were suspects, and they were questioned. And when they said, “I don’t want to talk anymore ’til I have a lawyer,” the cops basically said, “That’s too bad. We’re going to keep you here, and you’re going to keep talking.” That’s the kind of infringement, that’s the kind of compulsion, that the Fifth Amendment was meant. And historically, everyone has always believed that you have a right — in America, you have a right to remain silent. It’s part of our Constitution.

AMY GOODMAN: Well, let’s put that issue to Alan Wisotsky, the attorney for Sergeant Ben Chavez. The Miranda warning begins, “You have the right to remain silent.” We never hear that in this tape. Did Chavez offer to tell Oliverio Martinez about that right?

ALAN WISOTSKY: The answer to that question, Amy, is no. However, you have misstated or misread whatever the source is that you are relying upon as to the right protected under the Fifth Amendment to the United States Constitution. And I have my memo pad that has the Miranda rights printed on it from my days with the Los Angeles Police Department in the late ’60s. And it reads that you have the right to remain silent, because anything you say can and will be used against you in a court of law. There is no absolute right to remain silent.

AMY GOODMAN: Samuel Paz?

SAMUEL PAZ: And I think that that’s what I find striking and shocking, that that’s the argument that — unfortunately, that the number of — a number of the Supreme Court justices believe. I think that just goes against the entire grain and the entire historical development of the Fifth Amendment and the rights that this country have — we’ve grown up with the concept that you have an inalienable human right not to speak. And the concept that the Supreme Court is advancing, is that, “Well, you only have that right, if we use your statement and take it to court and then prosecute you.” The concept is that you have a right to be left alone, a right in your human dignity not to be forced to speak. That is what we’re looking at, is that now our government — and this was strongly pushed by the Bush administration — our government wants to say, “Well, a little bit of torture is OK. A little bit of coercion is OK.” And I think that I personally find it repugnant. I think most Americans find it repugnant to think that now the government can say, “We can force you to talk, just as long as we don’t use it against you.” And that’s what — I think that’s the argument that Alan is advancing. And, unfortunately, that’s a tragedy in this case.

ALAN WISOTSKY: Well, that’s absolutely incorrect.

SONIA MERCADO: Well, one of —

ALAN WISOTSKY: That is not — that’s not the argument I’m advancing.

SONIA MERCADO: Well, one of the statements that the court —

AMY GOODMAN: Sonia Mercado.

SONIA MERCADO: One of the statements the court does mention, Justice [Thomas], for example, will still provide the Fifth Amendment right to someone like Mr. Lay before the Senate. So, before the Senate, when we don’t know whether they will be prosecuted or not, and they claim the Fifth Amendment right to remain silent, I don’t think Justice Thomas was promoting that then we could browbeat them and coerce them and not let them leave the chamber until they answer the question because we haven’t prosecuted them yet. And so, that shows the fallacious argument itself that the majority push forward, where it is very result-oriented, and it’s not logical, because still you have the right, if you are evading taxes, to say, “I have the Fifth Amendment right to remain silent, because you may prosecute me later.” And I don’t think that Justice Thomas, anywhere in his opinion, got rid of those rights. So it’s only when they want to prosecute either someone they may think is a terrorist or somebody they think may have committed a crime, or someone they just want to badger until they confess to a crime they never committed, as in this case.

AMY GOODMAN: Attorney Wisotsky, you said that the argument Samuel Paz said you’re making is not the one you’re advancing. What are you saying?

ALAN WISOTSKY: There are two distinct Bill of Right amendments that are in issue here. The Fifth Amendment really deals with the self-incrimination clause, that you don’t have to be a witness against yourself in a criminal action. In other words, you have the right not to speak, to remain silent, for fear that your testimony or statements may or will be used against you in a court of law. To suggest that the police are thereby empowered to use torturous means to gain confessions flies directly in the face of the 14th Amendment, which provides the protection that that Ms. Mercado and Mr. Paz and the citizens of this country expect from the police. They are entitled to be treated with dignity and fairly.

But at the same time, the police have a job to do, and it’s a hard job. And they are entitled to use aggressive, sometimes coercive means to obtain information. Even Justice Ginsburg, in her dissenting opinion, probably the most liberal, if not — well, certainly a very liberal member of the Supreme Court, references examples of when police are very much entitled to make inquiries of individuals even though they choose not to speak or want to speak.

AMY GOODMAN: I wanted to play the tape again, when — you put forward the idea that Sergeant Chavez was being compassionate in allowing him to present his story. And just listening to Oliverio Martinez respond to this. Again, this is in the emergency room.

[tape]

AMY GOODMAN: That, again, the recording that Sergeant Chavez himself made of his questioning of Oliverio Martinez, who had been shot five times. He is now blind and paralyzed now. So, this case goes back to court. Are you — you’re suing Sergeant Chavez?

SAMUEL PAZ: Yes, and the two officers who were involved in the shooting of Mr. Martinez, as well.

AMY GOODMAN: And where does that stand?

SAMUEL PAZ: Well, I think that probably Alan Wisotsky and myself and Ms. Mercado will have a powwow together and decide exactly the manner in which we’re going to proceed and go forth before the trial court and try to figure out exactly how we take the next step.

AMY GOODMAN: And how long has this case been going on?

SAMUEL PAZ: Since 1997?

AMY GOODMAN: So, for six years.

SAMUEL PAZ: Yes.

AMY GOODMAN: Five, six years. Is Mr. Martinez able to support himself?

SAMUEL PAZ: No.

AMY GOODMAN: What was he doing before?

SAMUEL PAZ: He was a field worker, a farmworker.

AMY GOODMAN: And how does he feel about the Supreme Court decision?

SAMUEL PAZ: I believe he’s saddened.

SONIA MERCADO: Shocked. I think he’s as shocked as anybody else that the court would find that it’s OK to do this kind of interrogation and this kind of torturous conduct.

AMY GOODMAN: Alan Wisotsky, do you see this as the beginning of the erosion of Miranda rights, overall, of police officers having to tell someone they take into custody, “You have the right to remain silent”?

ALAN WISOTSKY: Absolutely not. As I’ve said from the beginning of this controversy, the Miranda decision is alive and well in the United States. This has no bearing on the manner or method of which subjects can be questioned, but simply the textual meaning of the Fifth Amendment. It has no bearing on the behavior, conduct or intent of interrogating police officers, which is controlled quite adequately by the 14th Amendment.

AMY GOODMAN: Upon hearing that recording again, and I’m sure you’ve heard it many times as you bring this to case, you say that the right to do this, to question Mr. Martinez, as he has been shot five times, even as he says he doesn’t know and he asks to remain silent, is enshrined in the Constitution?

ALAN WISOTSKY: I was hoping you’d go back to that, Amy, because I wanted to make one comment about it. I have been in emergency rooms on a number of occasions, both as a patient as well in my capacity in law enforcement. And I have heard patients in that agony and in that degree of pain. And the type of questioning that was being put to Mr. Martinez really is no different than I have heard, personally, by physicians, paramedics, medical staff members, when trying to ascertain information to enable them to provide treatment to a patient. And again, referencing Justice Kennedy —

AMY GOODMAN: Are you suggesting that Mr. Chavez was trying to provide treatment?

ALAN WISOTSKY: No, no. What I’m saying is, it sounds terrible, but there are times when you have to get through that and get to the heart of what is most important. At no time — and Mr. Paz and Ms. Mercado must concede this — at no time did Sergeant Chavez ever lay a hand on Mr. Martinez. At no time did he threaten or in any way allude to the holding back of medical treatment in exchange for his cooperation or answers. There was simply aggressive questioning to a man who believed he was dying and to a man who Sergeant Chavez, based on his experience, likewise believed was about to expire.

AMY GOODMAN: And now, was he in uniform, Sergeant Chavez?

ALAN WISOTSKY: Yes.

AMY GOODMAN: And he had already — Mr. Martinez had already been subjected to his colleagues, who had shot him five times. Is that right?

ALAN WISOTSKY: No, he pointed a gun at them, and they defended themselves, yes.

SONIA MERCADO: That is not the — those are not the facts, because if he had pointed the gun at them, Mr. Wisotsky, with all due respect, your officers would have filed charges, criminal charges, against him, as is very usual in the Los Angeles area. And further, Sergeant Chavez, not once, Mr. Wisotsky — and I think the tape speaks for itself — ever asked any questions of Mr. Martinez regarding the other officers. His only questions were to Mr. Martinez, and his only questions were: “You were holding the gun.” And it was he who started that line of questioning. So, if he was interested in a dying man’s declaration, he would have asked some questions about: What did the officers do? Not one question on what the other officers did.

AMY GOODMAN: Let me put that question to you, Alan Wisotsky. You said that he was holding a gun and he was threatening the officers. So, why wasn’t he charged with threatening them? Why wasn’t he charged with perhaps attempted murder?

ALAN WISOTSKY: Well, you’re speaking, frankly, to the wrong individuals. The Ventura County District Attorney’s Office is presented with every case of this type, as they were in this matter. And for whatever reasons, they determined that there was insufficient evidence, that Mr. Martinez himself has suffered penalties worse than any judicially mandated sentence may be, could very well have influenced their decision not to proceed with the prosecution of this case. But I can assure you that Mr. Salinas and Ms. Pena, the officers involved in this altercation, will testify and have testified that they were both very much in fear for their own safety and well-being and have the absolute right to defend themselves.

AMY GOODMAN: Will there be a settlement in this case?

ALAN WISOTSKY: We’ve explored the possibilities, and at this juncture, it hasn’t moved into any fruitful direction.

SONIA MERCADO: We’re ready to go to trial. The defendants in this case have not come forward with anything. Obviously, issues like that may or may not be discussed in the future. But I believe that Mr. Paz, who did a majority of the depositions in this case, we’re ready to go forward.

AMY GOODMAN: Well, I want to thank you all very much for being with us. We’ve been joined by Samuel Paz and Sonia Mercado, co-counsels in the case of Oliverio Martinez. Alan Wisotsky, lawyer for Sergeant Ben Chavez, who interrogated Martinez on the way to the hospital and in the emergency room. Thank you.

SAMUEL PAZ: Thank you, Amy.

SONIA MERCADO: Thank you.

AMY GOODMAN: You’re listening to Democracy Now! Back in a minute.