The 9th has continued to be busy during its judicial conference.

Sessoms v. Runnels, No. 08-17790 (8-16-12)(en banc: opinion by B. Fletcher with Schroeder, Wardlaw, Fisher, Paez, and M. Smith; concurrence by Fisher with B. Fletcher, Wardlaw, and Paez; dissent by Murguia with Kozinski, Silverman, Callahan, and Ikuta).

The 19-year old turned himself in on a murder charge, with the advice of his father to ask for a lawyer. The police came in, and the young man said "My dad asked me to ask you guys...give me a lawyer."  The police did not.  They told him that it would hurt him, that it was futile, and the whole thing was being taped.  They then questioned him, and read him his rights, and got a confession.  At trial, he got LWOP on felony murder. Sitting en banc, the 9th granted his habeas.  The majority held that the request was clear under Miranda and the state court's reasoning that it was ambiguous under Davis was unreasonable.  The concurrence agrees, and also would find that the request met the more stringent standard under Davis for unambiguous. The dissenters wring their hands, shrug their shoulders, and say that under AEDPA the state court's ruling was not unreasonable (really).

US v. Duenas, Jr., No. 09-10492 (8-16-12)(Wardlaw with Alarcon and N. Smith).

It was quite a search on Guam.  ATF and DEA and Guam police descended on a house, in the jungle, and started looking for drugs and guns.  It was such a big deal that it stretched over two days, and was followed by the public and the media, some of whom seemed to wander through the scene.  The 9th agreed that it was a mess, and a Fourth Amendment violation, but there was no prejudice from the woefully inadequate controls.  The 9th did reverse on the admission of a now deceased police officer's testimony at a suppression hearing.  The hearing went to the invocation of counsel, which was heatedly disputed (did he invoke or not?).  However, the cross exam was not with the same purpose as the statement's use at trial. The exam and questioning was for suppression and invocation, not to the truth of the matter.  The court erred in finding that the purpose and opportunity was the same for the two hearings.  This opinion is good at the matching requirement, and that a hearing is not an admission ticket for a future trial.  The co-defendant in this case was not so lucky, and the conviction affirmed with sufficient evidence.

Jones v. Ryan, 10-99006 (8-16-12)(Gould with Tallman and Bea).

In a capital habeas petition, the 9th affirms the denial of the claim.  There was evidence presented of prosecutorial misconduct in presenting and arguing evidence.  For example, the prosecutor argued that the petitioner busted down the door, when it was actually the police.  The argument went to the petitioner's violence and intent as to the multiple murders.  The district court was troubled, but at the end of the day, or petition, the evidence was overwhelming and the misconduct could have been "an innocent mistake" by an experienced prosecutor.