Sunday, February 28, 2010

Case o' The Week: Ninth Won't "Pucker Up to Kiss the Great Writ Goodbye:" Doody, Miranda, and Voluntariness of Confessions

Thanks to the Supremes, Miranda is battered and bruised - with another lousy decision coming out just last week. Thankfully, Miranda protections still having real meaning in the Ninth, as evidenced by an important new en banc decision by Judge Johnnie B. Rawlinson (right). Doody v. Schriro, __ F.3d __, 2010 WL 653441 (9th Cir. Feb. 25, 2010) (en banc) (decision available here).

Decision by Judge Rawlinson, dissent by Judge Tallman.

Facts: Nine people - including six monks - were murdered inside of an Arizona Buddhist temple. Id. at *1. The Phoenix team of detectives investigating the case interrogated four men, who confessed and charged with murder. Id. Those confessions were false; the murder charges were dismissed. Id. & n.1.

The same task force eventually seized on Doody, a seventeen-year old boy. Id. They took Doody in and questioned him overnight for over twelve hours, used tag-team interrogation, sat him in a hard, straight-backed chair, after giving him long and garbled Miranda “warnings. Id. at *1-*10.

Doody confessed to being present during the murders, was charged, unsuccessfully moved to suppress his statements in state court, and was convicted of first degree murder. Id. at *11. His appeal was denied by the state appellate court, his habeas was denied by a three-judge Ninth panel, and the case went en banc. Id. at *12.

Issue(s): “Although Doody eventually confessed to participating in the nine murders, he now challenges his confessions, asserting that the Miranda advisements he was given were inadequate and that his confession was involuntary.” Id. at *1.

Held: “We agree on both counts. Specifically, we conclude that the advisement provided to Doody, which consumed twelve pages of transcript and completely obfuscated the core precepts of Miranda, was inadequate.” Id. at *1.

Of Note: Doody is an admirable piece of legal writing, with exhaustive discussion of the factual record and a detailed analysis of controlling (and distinguishable) authority. It is also clearly heartfelt, as revealed in Judge Rawlinson’s shot across Judge Tallman’s bow:

The dissent would prefer that we simply parrot the findings made during the state court proceedings and call it a day. However, if 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-by.

Id. at *14.

How to Use: Doody will be remembered as a Miranda case, but to be honest Miranda warnings are rarely butchered as badly as by the Arizona detectives in this case. The real potential value of the opinion is in its comprehensive discussion and analysis of the voluntariness of the confession – separate and apart from the Miranda warnings. Id. at *16 - *29.

Judge Rawlinson patiently wades through – and effectively distinguishes – each of the cases tossed up by the dissent, making Doody an excellent primer on the voluntariness issue. Of particular interest is the opinion’s correct insistence that the “voluntariness” inquiry must on weigh all of the factors around an interrogation in totality, and a court cannot simply tick-off (and dismiss) factors in isolation. Id. at *19-*23. Doody will be a lead case in the Ninth: it should figure prominently in any motion challenging the voluntariness of a custodial interrogation.

For Further Reading: The 800-pound gorilla (for any post-AEDPA, Ninth Circuit opinion) pounded its chest in a most-unwelcome way this week. In Maryland v. Shatzer, __ S. Ct. __, 2010 WL 624042, *8 (U.S. Sup. Ct. Feb. 24. 2010), the Court permitted law enforcement to re-initiate custodial interrogations two-weeks after a suspect asserts Miranda protections. Shatzer comes about a year after Montejo v. Louisiana, 129 S.Ct. 2079 (2009), where the Court permitted law enforcement to initiate post-appointment interrogation of represented defendants.

When you read of the really abusive interrogation of a minor in Doody (by the same Phoenix task force that had managed to grind out four false confessions in the same case) it makes the Supreme Court’s recent Miranda missteps all the more troubling.

Image of the Hon. Johnnie B. Rawlinson from

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


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Anonymous Ben said...

Further scaling back on individual rights from the SCOTUS, great.

Wednesday, March 03, 2010 10:05:00 AM  

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