Tag Archives: Miranda v. Arizona

The Other Side of the Wind

The following is a “reluctantly dissenting” opinion written by a federal appellate judge in a case  that concerned the voluntariness of incriminating statements made by a 19-year old to detectives in an interrogation room.  The opinion is notable most of all for its honesty and is worth a read for lawyers and laypersons alike.  It gives one faith that the cards are not always stacked against the down and out and that sometimes just results are the order of the day even if it means the law, at least as it is currently written, will not be followed to a “T”.

Chief Judge KOZINSKI, reluctantly dissenting:

This is a sad and troubling case. There can be no doubt that Tio Sessoms meant to ask for a lawyer. Nor is there any doubt that detectives Woods and Keller understood exactly what he was asking for—and used their hefty leverage to divert him from that purpose. It was hardly a fair contest: a boy in his teens, held in custody and cut off from friends and family, pitted against two police detectives with decades of experience in overcoming the will of recalcitrant suspects and witnesses.

But what we must decide is not what Sessoms meant or the officers understood, but whether it was unreasonable for the state courts to conclude that a reasonable officer would have been perplexed as to whether Sessoms was asking for an attorney. This is the kind of question only lawyers could love—or even understand—and perhaps not even most of them. I am dismayed that Sessoms’s fate—whether he will spend his remaining days in prison, half a century or more caged like an animal—turns on such esoterica. But that’s the standard we are bound to apply, even if we are convinced that the habeas petitioner’s constitutional rights were violated. See Cavazos v. Smith, 132 S. Ct. 2, 4 (2011) (per curiam) (“[T]he inevitable consequence of [AEDPA] is that [federal] judges will sometimes encounter convictions that they believe to be mistaken, but that they must nonetheless uphold.”); see also Brown v. Payton, 544 U.S. 133, 148-49 (2005) (Breyer, J., concurring) (stating that even though he likely would have found a constitutional violation “[w]ere [he] a California state judge,” the state court’s denial of habeas relief was reasonable).

Under this unforgiving standard, Judge Murguia has the better of the argument. This is not a case where the state judges were confused about the law or overlooked key evidence, as in Taylor v. Maddox, 366 F.3d 992, 1008 (9th Cir. 2004). No, the Court of Appeal’s opinion is carefully crafted to exploit every ambiguity in the timid utterances of a scared and lonely teenager. Another uneven contest that Sessoms was bound to lose.

While I agree with Judge Murguia’s analysis and join her dissent, it’s just as well that our view doesn’t command a majority. If the State of California can’t convict and sentence Sessoms without sharp police tactics, it doesn’t deserve to keep him behind bars for the rest of his life. I have seen far too many cases where police extract inculpatory statements from suspects they believe to be guilty, then stop looking for evidence, confident that the courts will uphold the interrogation, no matter how tainted. See, e.g., Milke v. Ryan, 711 F.3d 998, 1001-02 (9th Cir. 2013)Taylor,366 F.3d at 996-97. This can lead to wrongful convictions, as innocent interrogation subjects confess with surprising frequency. See Saul M. Kassin et al., Police-Induced Confessions: Risk Factors and Recommendations, 34 Law & Hum. Behav. 3, 3-5 (2009); Brandon L. Garrett, Judging Innocence, 108 Colum. L. Rev. 55, 88-89 (2008). When courts bend over backwards to salvage evidence extracted by questionable methods, they encourage police to take such shortcuts rather than doing the arduous legwork required to obtain hard evidence.

The state courts should have been far more vigilant in correcting and condemning the detectives’ improper conduct, particularly since it involved a naïve teenager who clearly tried very hard to invoke his constitutional right to have a lawyer present during questioning. The state courts having failed Sessoms, I’m glad that a majority of our en banc court is able to conclude that the state courts were unreasonable. I hope their view prevails in the end.

The case is Sessoms v. Grounds, No. 08-17790 (9th Cir. decided Sept. 22, 2014) (en band).  The full opinion can be downloaded here.

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You Have the Right To Remain Silent, You Have the Right to … Wait, Hold that Thought

The Tampa Tribune picked up a story of a memorandum recently circulated within the Tampa Police Department that provides guidelines for officers looking to skirt the protections of Miranda v. Arizona and its familiar set of warnings.  Opponents of the new policy have blasted the Tampa PD, calling it a recipe for violating constitutional rights, while the police describe it as a necessary tool to aid in the investigation of crimes.  In case  you’re wondering, here are some of the suggestions offered in the memorandum as to how police could seek to elicit incriminating statements, Miranda or no Miranda:

•The Miranda warnings must be given at the outset.

•There must have been a sufficient lapse of time between the invocation of the right to remain silent and the resumption of questioning; two hours is enough, perhaps less.

•The second round of questioning should be at a different location/setting.

•The second round of questioning must concern different crime(s).

According to the story, the memo was written in response to a recent Supreme Court decision, which was not named but is mostly likely the one in Kansas v. Ventris.  In Ventris, the Supreme Court ruled that the prosecution may use statements elicited by the police from a defendant for impeachment purposes, i.e., to undermine his credibility ever after the defendant he has invoked his right to counsel.  Scott Greenfield over at Simple Justice had a nice take on the decision which it was first issued.

I am doubtful the new policy being implemented by the Tampa police will actually result in more closed cases.  Such legally dubious tactics rarely do.  What I am fairly certain of, however, is that Tampa defense attorneys will challenge police-initiated interrogations, and the resulting statements, with more frequency, which, in turn, will lead to more litigation and longer delays for criminal defendants looking to have their cases resolved.