- The Washington Times - Tuesday, May 27, 2003

The Supreme Court yesterday rejected a challenge by several news organizations that sought access to closed-door deportation hearings for hundreds of illegal aliens rounded up after September 11.

The justices refused to review a process so secret that nearly half the Justice Department’s 220 immigration judges lacked the security clearance needed to hear the “special interest” cases.

New Jersey newspapers sought to penetrate the secrecy surrounding people detained in connection with terrorism investigations there and in New York.

“The press and the public have an overwhelming interest in knowing how, and how fairly, its government uses the power of detention and deportation,” lawyers for the newspapers said in their appeal.

In an unrelated civil rights lawsuit argued in December, the court ruled 5-4 yesterday that police Sgt. Ben Chavez did not violate the Fifth Amendment rights of a gravely wounded farm worker in 1997 by questioning him in a hospital without reading him his Miranda rights.

The opinion for the court, written by Justice Clarence Thomas, said that because Oliverio Martinez was never charged with any crime in the case, Sgt. Chavez has qualified immunity against charges that he forced a person to be a witness against himself.

However, an unusual second opinion, written by Justice David H. Souter, ruled 5-4 that Mr. Martinez should be given the chance to pursue in lower courts a separate civil rights charge that the California policeman’s action denied Mr. Martinez’s 14th Amendment “constructive due process” rights.

Mr. Martinez was blinded and paralyzed after being shot five times by police. He was never charged in the case, although he admitted taking an officer’s gun during the altercation and to being a heroin user.

A transcript of the interrogation quoted Mr. Martinez as saying, “I am choking. I am dying, please.”

According to the transcript, Sgt. Chavez replied, “If you are going to die, tell me what happened.”

Justice Thomas announced from the bench that the case produced six separate opinions, with as many as five separate split votes within those conflicting views. “You can see how much of a consensus builder I am,” he said, which brought laughter from the full courtroom.

In rejecting the Fifth Amendment claim, Justice Thomas was joined by Chief Justice William H. Rehnquist and Justices Sandra Day O’Connor, Antonin Scalia and Souter, whose own main opinion for the court on the second part of the claim was joined by Justices John Paul Stevens, Anthony M. Kennedy, Ruth Bader Ginsburg and Stephen G. Breyer.

Among other actions yesterday, the justices:

• Agreed to decide next term whether Greece’s Olympic Airways must pay a court-ordered $1.4 million judgment for the death of Dr. Abid Hanson, 52, who suffered an asthmatic attack and died while seated near the smoking section on a 1998 flight from Athens to New York.

• Turned away a challenge by pharmaceutical manufacturers to Florida’s program that requires them to subsidize prescription drugs for Medicaid patients, following on the heels of an approval last week for a similar program in Maine.

• Ruled unanimously that Black & Decker and other employers need not defer to the opinion of an employee’s doctor when denying disability benefits. “Courts have no warrant to require administrators automatically to accord special weight to the opinions of a claimant’s physician,” Justice Ginsburg wrote.

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