Doody v. Schiro (9th Cir. - Feb. 25, 2010)

Judge Tallman, joined by Judges Rymer and Kleinfeld, opens the dissenting opinion carefully. It starts with the following initial paragraph: "I certainly understand the passion behind the majority’s distaste for the facts of this case. I can see how a lengthy overnight interrogation of a seventeen and one-half year-old high school student can be off-putting—perhaps so off-putting that were we reviewing this issue from scratch on direct appeal, we might be tempted to fashion rules that would afford relief. But that is not the posture of this case. We are collaterally reviewing Jonathan Doody’s conviction for the murder of nine people that was already upheld on direct review by the Arizona Court of Appeals, and our review is not de novo—as the majority treats it—but deferential." The rest of the dissent is somewhat less reluctant and moderate, but you get the point. It's not a "fire and brimstone" dissent. Which is not especially surprising given the underlying facts.

The majority opinion, by contrast, is authored by Judge Rawlinson, and doesn't leave many holds barred. Mind you, it easily could have been written even more strongly. And, with a different author, might well have been. But it nonetheless remains a pretty strong indictment of what transpired here.

Nor does the majority shy away from responding to the dissent. And scores a fair number of points in doing so. A typical footnote: "[T]he dissent describes the physical surroundings as

'what had been the office of a Maricopa County attorney, roughly ten feet by eighteen feet in size, well-lit, with carpeted floors and padded chairs . . .' Id. The dissent completely fails to mention that the chair where Doody was seated had a straight, immobile back. There was no table or desk on which Doody could lean or rest his head. For almost thirteen hours, Doody was required to sit completely upright while being interrogated by a tag team of officers."

Trust me, though, it gets a lot more responsive than this. Take this paragraph of the majority opinion: "Our colleagues in dissent chastise us for reaching these conclusions, accusing the majority of 'once again pay[ing] mere lip service to AEDPA and then proceed[ing] as though

it did not exist.' See Dissenting Opinion, p. 3032. 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-bye."

Wow. I don't know the last time I've seen the words "rubber stamp" and "pucker up" in the same sentence before. But it darn sure wasn't in a judicial opinion. Come on, Judge Rawlinson. Tell us how you really feel.

Judge Kozinski writes a separate concurrence that plods a middle ground. The majority finds both a violation of Miranda and, in a separate basis for reversal, concludes that the confession was involuntary. The dissent disagrees with both of these conclusions. Judge Kozinski, writing for a party of one, agrees with the former but disagrees with the latter.

Beyond his substantive points, Judge Kozinski also adds his classic writing style. Here's a snippet: "The warning given in this case was far worse than no warning at all. At least an un-warned suspect may know his rights without being told about them; many non-lawyers watch Cops and Law and Order. But a non-lawyer who knows about the right to counsel, and who might even be willing to invoke it without a warning, may well hesitate to ask for a lawyer after

being told that the right would only apply 'if you were involved.' After all, a request for a lawyer would be an admission that 'you were involved,' as only suspects who knowingly fall into that category would have a right to ask for one." And draws this analogy:

"Here’s a simple test of the warning’s adequacy: Suppose everything the officer said had been printed on a standardized waiver produced by the state. Since this was Arizona, the birthplace of Miranda, maybe police felt they were entitled to improve on the Supreme Court’s work; call it Miranda 2.0:

You have the right to an attorney present prior to and during questioning, provided you were involved in the crime. (If you were involved, then that right would apply to you.) Do you understand this right?

Yes______ No______

Now suppose Doody had initialed such a form. Would we uphold the warning just because it contained the magic words, 'You have the right to an attorney'?"

In the end, this is nearly a straight up party line en banc vote. 7-1-3. The seven Democratic appointees on the panel in the majority. The idiosyncratic Chief Judge Kozinski as the 1. Rounded out with the three conservatives on the panel -- two Bush I appointees alongside Judge Tallman -- in dissent.