Doody v. Ryan, No. 06-17161 (5-4-11) (en banc) (Rawlisnson with Schroeder, B. Fletcher, Pregerson, Reinhardt, and Thomas; concurrence by Kozinski; dissent by Tallman with Rymer and Kleinfeld).

On remand from the Supremes in light of its Miranda decision in Powell, the 9th, sitting en banc, again holds that the confession to killing nine individuals, of whom six were Buddhist monks, violated petitioner's Miranda rights and was involuntary. The 9th carefully went through the facts, including the downplaying, deviations, and express misinformation in giving the Miranda warnings to a juvenile, with no criminal priors, and who was foreign. Powell, considering the wording of Miranda warnings, is not applicable when the police undermine and undercut the warnings in 12 transcript pages of downplaying the simple warnings. As for voluntariness, the 9th also considered the length of the questioning, stretching over 13 hours, by a tag team of officers, who, in a related matter, used the same techniques to squeeze false confessions out of four men later released. The petitioner was comatose for long periods, and subjected to relentless questioning. Yes, the Arizona state courts had found the warnings valid and the confession voluntary, but the state court was unreasonable in its factual determinations and unreasonable in its application of the law. As the 9th colorfully put it: "[I]f we succumb to the temptation to abdicate our responsibility on habeas review, we might as well get ourselves a big, fat rubber stamp, pucker up, and kiss the Great Writ good-bye." The majority, in supporting its holding, calls out the dissembling of the dissent's reading of cases. Concurring, Kozinski discusses AEDPA and its deference, and using that standard, would defer to the state court's holding that the statement was voluntary, but would find that a Miranda violation did occur and that the state court's were unreasonable. In dissent, Tallman joined by Rymer and Kleinfeld, argue that AEDPA deference supports the state court's rulings. They focus on the reasons why it might be reasonable, and downplay the facts the majority found so convincing.