Miranda Rights Issue Imperils Key Sobek Evidence

Three months after a massive sheriff’s task force was assembled to investigate the death of model Linda Sobek, some of the key evidence against the man accused of killing her--including Sobek’s body--is at risk of being excluded from the trial.

During a 75-minute interview by detectives, transcripts show, Charles Rathbun asked 12 times for an attorney and detectives acknowledged his requests but continued questioning him without providing a lawyer.

Rathbun’s attorney filed a motion this week seeking to suppress evidence obtained during the interview. The prosecution, in turn, filed papers asking that the motion be denied.

The arguments have brought to the forefront a seldom-used exemption to a suspect’s sacrosanct Miranda rights.

“It was an egregious violation of Mr. Rathbun’s right to remain silent and have the benefit of counsel,” defense attorney Mark J. Werksman said of the interview.

The prosecution, while agreeing that Rathbun asked for an attorney and was not read his rights, contends that the detectives did not know Sobek was dead and had a legal right--called the “public safety exception” to Miranda--to question Rathbun in an effort to locate Sobek as soon as possible.

“They thought she might be alive, and they wanted to find her,” said Deputy Dist. Atty. Stephen Kay.

The public safety exception, first recognized by the U.S. Supreme Court in a 1984 New York case involving an armed rapist, has been on California’s legal books since the 1960s, and has been expanded over the years in California under the so-called “rescue doctrine,” said Loyola Law School professor Laurie L. Levenson, a former federal prosecutor in Los Angeles.

The exception allows authorities to forego Miranda when there is an urgent need for information to protect or rescue potential victims of crime. When “life hangs in the balance, there is no room to require admonitions concerning the right to counsel and to remain silent,” according to a 1974 California case.

Use of the public safety exception has been rare. In 15 years, federal prosecutors in Los Angeles have not used the clause, Levenson said. And Albert Menaster of the Los Angeles County public defenders office said only a handful of the exceptions can be found in California cases.

In this case, Levenson said, Torrance Superior Court Judge Benjamin Aranda’s decision on whether to strike Rathbun’s statements from evidence, as his attorney requests, could depend both on whether there were reasonable grounds to assume Sobek was alive and the credibility of the detectives in asserting that claim.

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During the interview Nov. 22, Rathbun told investigators he accidentally struck and killed Sobek, 27, of Hermosa Beach, while showing her how to do spins in a new Lexus sport-utility vehicle he was photographing. Three days later, with an attorney present, the 38-year-old photographer led investigators to Sobek’s shallow, rocky grave in the Angeles National Forest.

Rathbun has pleaded not guilty to charges he sodomized Sobek with an unknown object and then murdered her. If evidence gathered from Sobek’s body were to be disqualified, experts said, the prosecution would be faced with a more difficult case--and might have an especially tough time proving the rape charge, which makes Rathbun eligible for a death sentence if convicted of murder.

Although their questioning of Rathbun--leisurely and wide-ranging, according to transcripts--took place a week after Sobek disappeared, Levenson said she does not think that fact will be pivotal, although it could make the prosecution’s argument more difficult.

More important, she said, may be the questions detectives posed to Rathbun and the urgency of the inquiries. “For the police, the more urgency there is in their question, the more grounds for their [claim of] exception,” Levenson said. “If transcripts indicate they needed an answer and needed it now, that supports [them].

“I think a lot of courts are receptive to that [rescue argument],” she added, “because if you think about it, what do you want officers to do? When in doubt, you want them to rescue.”

Levenson said, however, that the very fact the prosecution is arguing the public safety exception indicates its case may be in some jeopardy. “The prosecution doesn’t want to be in the position of having to use this exception,” she said. “It’s so rare and so difficult.”

The defense insists the questions and actions of Hermosa Beach Police Det. Raul Saldana and Los Angeles County Sheriff’s Investigator Mary Bice make clear they understood there would be no saving the life of the swimsuit model.

The questioning took place the night of Nov. 22., six days after Sobek had disappeared after leaving for a photo shoot.

According to Werksman, the detectives were aware of a suicide letter Rathbun had faxed to a friend, Sheriff’s Reserve Deputy Shannon Meyer, “asking God to forgive him because he killed someone and couldn’t live with it.” And during the interview, held at the Hermosa Beach police station, Rathbun and detectives made several statements indicating their belief Sobek was dead, transcripts show.

Rathbun: “I wish I could give her back, but . . . “

Saldana: “OK, no, I mean, obviously you know she, she has gone on. I, I understand that. But physically give her back to [her family].”

In addition, Rathbun describes trying to resuscitate Sobek and, when failing, burying her body.

Prosecutor Kay said the statements by detectives are evidence only of good police work, as the last thing an investigator wants is to begin arguing or disagreeing with the suspect. And in papers filed opposing the exclusion of evidence, Saldana, under oath, said he had no idea of Sobek’s condition and sought only to locate her.

“Although Mr. Rathbun maintained during our conversation that he had accidentally killed Linda Sobek,” Saldana declared under oath, “I did not feel that Mr. Rathbun had the medical training to know for sure whether or not Linda Sobek was dead or alive.”

After the interview, Rathbun accompanied investigators on a failed search for Sobek until 5:30 a.m. on Wednesday, Nov. 23, the day before Thanksgiving. He was taken on a second search--this one successful--the following Friday.

“They weren’t so concerned about public safety when they took a 36-hour break between illegal interrogations and searches . . . to enjoy the Thanksgiving holiday,” Werksman said. “Who are they fooling?”

Kay denied that a break was taken in the search. During the first trip, Rathbun took detectives no closer than 30 miles to the burial site, Kay said. And he was not taken again to the area until Nov. 25 because investigators believed then--and now--that he had intentionally misled them about where the body was buried.

Harland Braun, a Los Angeles defense attorney, said that although he believed the investigators may well have violated Rathbun’s rights by not immediately halting questioning when he asked for an attorney, many judges would cringe at disqualifying a murder defendant’s statements, especially in a case with intense scrutiny.

“Judges will strain to let this in,” Braun said. “These are elected judges. This is a well-known murder. Would you want to be the judge that doesn’t allow a confession and then seek reelection?”

Should evidence, including Sobek’s body, be excluded, Kay said he still would be optimistic he could earn a conviction.

Twice, he successfully has prosecuted murder cases without a body on the theory that the missing persons must have been killed because their disappearance was otherwise inexplicable and that the person accused of the crime was known to have had access to them.

In 1969, Kay prosecuted Bruce Davis, an associate of Charles Manson who, with Manson and another man, was convicted of murdering a ranch hand at Manson’s infamous hangout, Spahn Ranch. The body was recovered 14 years after the disappearance.

Ten years later, Kay prosecuted serial killer Lawrence Bittaker. Two of the five murders of which Bittaker was convicted involved cases where victims vanished and bodies were never recovered.