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When Has A Suspect "Lawyered Up"?

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The US Court of Appeals for the Ninth Circuit (quasi en banc) today decided Sessoms v. Runnels, No. 08-17790, on the continuing conundrum of when a suspect has requested the presence of a lawyer during interrogation with sufficient clarity to invoke the Edwards "don't ask again" rule.

The California Court of Appeal applied the rule of Davis v. United States, 512 U.S. 452, 459 (1994) that an ambiguous statement that might be an invocation permits the police to ask for clarification.  The federal district judge thought that was reasonable.  So did a 2-1 majority of the initial panel.  Today, the 11-judge panel (as close as the 9th generally gets to en banc) split 6-5 for the defendant. 

The majority said it was unreasonable to apply Davis, a case where the suspect made the ambiguous statement after initially making a waiver, to a situation where the suspect makes the ambiguous statement before making any waiver.  Judge Murguia writes for the dissenters, "In fact, the Supreme Court has recently confirmed that Davis's reasoning applies equally in the pre-waiver context.  Berghuis, 130 S. Ct. at 2260...."

Definitely certworthy.

Update:  Denny Walsh has this story in the Sacramento Bee.

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"Tio Sessoms, a nineteen-year-old black man, sat alone in an eight-by-ten foot interrogation room. Five days earlier, on the advice of his father, Sessoms had turned himself in to the local police. Before doing so, Sessoms’s father told his son: you must ask for a lawyer before talking to the police."

There is a totally irrelevant fact in the above lead in paragraph of the opinion that only deals with whether the defendant invoked counsel. I just wonder why Judge Fletcher felt it was necessary to add.

Footnote 5 of the majority opinion is particularly laughable. It criticizes the dissent for using dicta, when, of course, dicta isn't available to overturn a state court judgment.

How obtuse are the members of the majority? If a state court follows SCOTUS dicta, that's strong evidence of the state court's reasonableness. Well, a foolish consistency is the hobgoblin of little minds. The use of dicta by a state court in arriving at a judgment is, of course, different from a habeas court using dicta to toss a state court judgment. This isn't that hard--why are these judges so dumb?

This reminds me of another bit of gratuitousness from a federal judge:

"According to testimony at the trial, Riley and Tyrone Baxter stopped in a liquor store in Dover, Delaware, on February 8, 1982, to get some beer and rob the store. Michael Williams waited in the car. Baxter testified that Riley, armed with a gun, placed a bottle of beer on the counter and announced the store was being robbed. When the store owner, James Feeley, a 59 year old white man, backed away from the cash register, Baxter grabbed the money 271*271 out of the cash drawer. Riley tried to take Feeley's wallet, but Feeley resisted. At Baxter's urging, Riley shot Feeley in the leg. Feeley, who was then hopping up and down, apparently from the gunshot, said "[Y]ou f `ing niggers." App. at 327. As Riley and Baxter were proceeding to the door to leave, Feeley threw a wine bottle that struck Riley in the arm. Riley then shot Feeley in the chest, killing him."

Riley v. Taylor, 277 F. 3d 261 (3d Cir. 2001).

Was there any need to smear the victim like that? No. But the judges on the Third Circuit didn't seem to have a problem with it. What jerks.

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