Monday, September 22, 2014

Sessoms v. Grounds, No. 08-17790 (McKeown for a 6-5 en banc majority; Kozinski, Callahan, and Murguia, dissenting) ---
An en banc panel reversed, for the second time, a district court's denial of a ยง 2254 petition filed by a California state prisoner.  The petitioner unequivocally asked for a lawyer at the start of a police interview, so the state courts should have suppressed his statements because the police continued to interrogate him despite this request.  The state courts' contrary decision led to a grant of habeas relief and a new trial.

The events here were recorded on video at the jail where the petitioner was being held after he had surrendered himself.  The interview begins politely; the detectives introduce themselves to the petitioner, and then some pleasantries are exchanged.  Then the petitioner asked, "There wouldn't be any possible way that I could have a -- a lawyer present while we do this?"  The lead detective hemmed and hawed, so the petitioner repeated himself: "Yeah, that's what my dad asked me to ask you guys... uh, give me a lawyer."  The detectives did not stop the interview as they were required to do under Edwards v. Arizona, 451 U.S. 477 (1981).  The petitioner made incriminating statements which were used against him at his murder trial.  He was convicted and sentenced to life without parole. 

The California courts deemed the petitioner's requests for counsel equivocal under Davis v. United States, 512 U.S. 452 (1994), and affirmed his conviction and sentence.  The district court denied his habeas petition, but ultimately an en banc panel of the Ninth Circuit reversed.  The Supreme Court granted the state's cert petition and remanded for further consideration in light of Salinas v. Texas, 133 S. Ct. 2174 (2013).  The en banc panel (with Judge McKeown drawn to replace the late Betty Fletcher) again reversed the district court.

The California Court of Appeal had read the petitioner's first statement as "indistinguishable" from the question in Davis and his second statement as simply restating his father's advice.  But the state court never considered the statements together and in context.  The petitioner had been in jail for four days, yet conspicuously absent from the beginning of the conversation were the now-familiar Miranda warnings.  Even so, the petitioner asked for a lawyer right from the beginning of the interview.  Instead of giving him the Miranda warnings or terminating the interview, the detectives simply ignored his request for counsel.  Worse still, they lied to the petitioner about what his alleged accomplices had confessed to, and then told him that asking for a lawyer would do him no good.  The Miranda warnings are designed to mitigate the effects of this common police subterfuge.  In context, the petitioner unequivocally asked for a lawyer.  The panel even commended the petitioner's father for giving him some "good advice" in that regard.  The state had conceded before the state courts that admitting the petitioner's statements was not harmless, so the panel granted the writ and ordered a new trial.

Dissenting, Chief Judge Kozinski complained that the California Court of Appeal's opinion that held the petitioner's request for counsel to be equivocal was "carefully crafted to exploit every ambiguity in the timid utterances of a scared and lonely teenager," but still found that the state court's decision wasn't an unreasonable application of Davis.  And even though he agreed that AEDPA barred relief, he was still happy that the majority of the en banc panel reversed the district court.

Judge Callahan dissented, pointing out that the majority was really disputing the state court's [a court on which she had previously served] assessment of the facts, which isn't a basis for relief under AEDPA.  She also said that she interpreted the Supreme Court's GVR in light of Salinas as basically ordering the Ninth Circuit to affirm the denial of the habeas petition.

Writing for a five-judge group of dissenters, Judge Murguia said it was reasonable for the state court to find each of the petitioner's statements, in isolation, to be less-than-clear requests for counsel.  Although Judge Murguia agreed that the petitioner's statements should be read "together" (but not necessarily "in context"), she still thought that his statements "contained just enough ambiguity that a fairminded jurist could conclude that Sessoms was indicating only that he might want the assistance of counsel."

The decision is here:


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