Lankford v. Arave, No. 99-99015 (11-7-06). The 9th (Reinhardt, W. Fletcher, and Bybee) granted relief in a 22 year old capital murder case. The petitioner was convicted on evidence buttressed by an accomplice's testimony -- his brother. His brother has subsequently recanted his trial testimony and said that he was the one who killed the victim. Over the years, the brother has repeatedly said he was the one to almost everyone -- defense counsel, prosecutors, and even reporters. The relief was granted by the 9th because of IAC. Trial counsel requested an instruction taht said, in part, that a defendnnat can be convicted on an accomplice's tetsimony alone. The instruction stated that it must be treated carefully, but it was up to the jury. This comports with federal law, but was incorrect as to Idaho law. There was no strategical reason for this request, and was detrimental. This is a pre-AEDPA case, and so the standard is relaxed. The 9th found it prejudicial.

Anderson v. Terhune, No. 04-17237 (11-8-06). "I plead the Fifth." We know what that means. The 9th (district court judge Hogan joined by Kozinski) holds though that the state court's finding that it was "ambiguous" in context was not unreasonable. The petitioner was being interrogated for the murder of his friend. He was asked a series of questions, and when queried about his drug use, he said "I plead the Fifth" and the police officer asked "What is that?" and continued questioning. The 9th reasoned that the "Fifth" was only about the drug use, and not other matters. The petitioner seemed to evince no reluctance to talk about other matters, and had told the police he didn't want to talk about other matters. This ambiguity as to what the Fifth pertained to, and the context, did not make it an invocation of rights. Vigorously dissenting, McKeown argues that a more "pristine" invocation could not be imagined. The stating of the "Fifth" should have been clear, and that it is sophistry, and a misreading of Davis, to hold that it is ambiguous.