It's a federal habeas case. Miranda. The district court denies the petition, and back in 2011, a three-judge panel affirms. But the case gets taken en banc, and Judge Betty Fletcher authors a majority opinion that reverses and grants relief.
It's a close shave for the petitioner. Six judges in the majority. Five dissenters. Couldn't lose a single vote and still win. But win petitioner does.
Except it's not over. The state petitions for certiorari, and the Supreme Court GVRs the case in light of an intervening decision. So time for the Ninth Circuit to take a second look.
Petitioner hopes, however, for the same result. The en banc court retains jurisdiction over the case on remand. And a GVR isn't an expression of any view on the merits. It's essentially the same issue, the only difference being a new case that doesn't particularly affect the result.
But while the new Supreme Court case doesn't matter, practical reality does. Because during this whole process, the author of the majority opinion -- Judge Fletcher -- dies. Which can matter a ton, because it's a 6-5 vote.
Will the judge drawn to replace Judge Fletcher be more like the other members of the prior majority (Judges Schroeder, Wardlaw, Fisher, Paez, and Milan Smith)? Or more like the dissenters -- Judges Murguia, Kozinski, Silverman, Callahan, and Ikuta?
Ultimately, Judge McKeown gets drawn. She then authors the new majority opinion. Another 6-5. With the same dissenters.
It's also an interesting case on the merits. Here's how Judge McKeown begins the latest opinion:
"An American poet wrote more than 100 years ago: 'When I see a bird that walks like a duck and swims like a duck and quacks like a duck, I call that bird a duck.' When a suspect says 'give me a lawyer,' that request walks, swims, and quacks like a duck. It is an unambiguous request for a lawyer, no matter how you slice it. The statement is unequivocal—it is not a maybe or a perhaps—it is an invocation of the Fifth Amendment right to counsel."
Hence the majority holds (once again) that petitioner is entitled to relief. With one vote to spare.
The dissenters again dissent. With a slight difference. Last time, Judge Kozinski fully joined in the dissent. Today, he does the same thing. But he also writes separately. Saying some fascinating stuff.
Maybe time changes things a bit. Maybe reflection matters. He still comes out the same way, saying that petitioner isn't entitled to relief. But what he says bears substantial quotation. Here's his take:
"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. [Citations]
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., [Citations]. This can lead to wrongful convictions, as innocent interrogation subjects confess with surprising frequency. [Citations]. When courts bend over backwards to salvage evidence extracted byquestionable 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."
When was the last time you saw someone not only "reluctantly" dissent, but affirmatively express the view that the contrary majority position ultimately "prevails in the end"?
Not something you see every day.
This one's essentially over in the Ninth Circuit at this point. But "the end" is far from here. You'll see the state petition (again) for certiorari.
We'll see what the Supreme Court does.