Sunday, January 06, 2008

Case o' The Week: Ninth Salehs Forth with Bad Miranda Decision

A disappointing habeas loss tolerates a non-Mirandized phone interview by a cop, of an inmate in custody -- when the inmate initiates the call. Saleh v. Fleming, __ F.3d __, 2008 WL 43719 (9th Cir. Jan. 3, 2007), decision available here

Players: Hard-fought appeal by Seattle FPD R&W Attorney Corey Endo.

Facts: Elizabeth Edwards was beaten to death. 2008 WL 43719, *1. The police suspected her ex-husband, Saleh. They Mirandized and interviewed him while he was in custody on another case. Id. Three weeks later a cop again Mirandized and interviewed Saleh in custody. He cried, said he wanted the electric chair so that he could be with Elizabeth, but denied killing her. Id. The next day, Saleh placed a collect call from jail to the cop, repeated that he wanted the chair to be with his ex-wife, and denied killing her. Id. At the state murder trial, the first two interviews were suppressed, but the third call – initiated by Saleh – was admitted. Id. He was convicted, lost his state appeals, and his federal habeas was denied. Id. at *2.

Issue(s): 1. Custodial / Miranda : “We must decide whether a phone conversation with police investigators initiated by a suspect who is in jail for an unrelated offense constitutes a ‘custodial interrogation’ under Miranda . . . and its progeny.” Id. at *1.

2. Cat out of the Bag Miranda: “Saleh also argues that the March 26 . . . statements should have been suppressed under the ‘cat out of the bag’ theory set forth in United States v. Bayer, 331 U.S. 532, 540 . . . (1947) ( ‘[A]fter an accused has once let the cat out of the bag by confessing ... he is never thereafter free of the psychological and practical disadvantages of having confessed.... In such a sense, a later confession always may be looked upon as fruit of the first.’).”

Held: 1. Custodial / Miranda: “We agree with the Eighth Circuit that ‘incarceration does not ipso facto render an interrogation custodial,’ and that the need for a Miranda warning to the person in custody for an unrelated matter will only be triggered by ‘some restriction on his freedom of action in connection with the interrogation itself.’ Leviston v. Black, 843 F.2d 302, 304 (8th Cir.1988); see also Cervantes v. Walker, 589 F.2d 424, 427-28 (9th Cir.1978) (rejecting a per se requirement of Miranda warnings for all persons interrogated while incarcerated). Accordingly, the Washington Court of Appeals’s determination that the March 26, 1998, phone conversation was not custodial for purposes of Miranda was not contrary to clearly established Supreme Court precedent.” Id. at *2.

2. Cat out of the Bag Miranda: The cat out of the bag “argument is foreclosed by Medeiros v. Shimoda, 889 F.2d 819 (9th Cir.1989). In Medeiros, we held that, under Oregon v. Elstad, 470 U.S. 298 . . . (1985), the ‘cat out of the bag’ theory does not apply where a confession is voluntarily made, under circumstances not requiring a Miranda warning, subsequent to a technical Miranda violation. . . . Rather, the relevant inquiry is whether the suspect ‘made his second statement voluntarily.” Id. at 824; see Elstad, 470 U.S. at 318 (‘[T]here is no warrant for presuming coercive effect where the suspect's initial inculpatory statement, though technically in violation of Miranda, was voluntary. The relevant inquiry is whether, in fact, the second statement was also voluntarily made.’).”

Of Note: A nice Judge Berzon concurrence concedes that she is bound by Medeiros, but argues that Judge Norris’ “trenchant” dissent in that case – where he would find a Miranda violation – is much more persuasive. Id. at *4.

How to Use: Author O’Scannlain works hard in this case to distinguish the Supreme Court’s decision in Mathis, emphasizing that Saleh initiated the call and was free to end it at any time. Id. at *2. Take a close look at this decision if this Miranda issue arises – the opinion is fairly fact-bound and should remain limited to its specific facts.

For Further Reading: Habeas remains a mystery. In the button case – Musladin v. Lamarque, 427 F.3d 653 (9th Cir. 2005), vacated by Carey v. Musladin, 127 S. Ct. 649 (2006) – everyone was up in arms about using Ninth authority to help understand what “clearly established” federal law is. Yet, here, Judge O’Scannlain relies squarely on Circuit precedent – not “clearly established federal law as determined by the Supreme Court” – to deny the habeas appeal?

Saleh illustrates what was true -- but never really admitted -- in Musladin. AEDPA, schmedpa: every Circuit court routinely uses its own precedent when trying to figure out what "clearly established law as determined by the Supreme Court" is. A small illustration of one of the many, many ways that AEDPA is an unworkable statute in practice.

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at


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