Hello again, internets. Been a long while since I posted something. Too long. Let's just blame the sequester. I hope to start posting more regularly. Fortunately, Matt has been putting up a lot of good stuff over the past few months so the group blog remained active as I adjusted to life under sequestration. Which looks like it will painfully continue for the foreseeable future. And don't even get me started about the likely shutdown. Grrrr.
Back in August 2012, the legendary Betty Fletcher wrote the 6-5 en banc decision in Sessoms v. Runnels, granting habeas relief based on the police obtaining a statement from a defendant after he had invoked his right to counsel.
Petitioner, a 19-year-old, was taken into custody and, before he was given his Miranda rights, the following exchange occurred:
Sessoms: There wouldn't be any possible way that I could have a — a lawyer present while we do this?
[Detective]: Well, uh, what I'll do is, um —
Sessoms: Yeah, that's what my dad asked me to ask you guys ... uh, give me a lawyer.
The California courts rejected his right to counsel claim because, in their view, he had not made an unambiguous request for an attorney. Judge B. Fletcher* concluded that California unreasonably extended this standard to this situation. According to Judge Fletcher, the "unambiguous" request test applies after Miranda has been given. But before the rights are read, a request such as the one here is sufficient to assert the right to counsel under clearly established Supreme Court law that focus on pre-Miranda invocation of the right to counsel. Beautifully reasoned opinion.
*I use "B. Fletcher" here since her son William Fletcher is also a judge on the Ninth Circuit. So saying Judge Fletcher used to be imprecise. At this point, if you write Judge Fletcher, you should probably be referring to W. Fletcher.
But, come on. Let's have some real talk (NSFW due to language, I believe). In the real world, this was obviously a request for an attorney. Breaking out, as I typically do, my uncommon sense meter, who in their right mind would not believe that this kid was asking for an attorney? Even the police officers in this case believed that he was, as they responded to his request by convincing this young guy that having an attorney present was not in his best interest. Feels like irony lives somewhere in there. It rates pretty high on the meter.
Sadly, this great decision was Judge B. Fletcher's last habeas opinion. She passed away in October 2012.
The warden sought cert. in the Supreme Court and it sat up there for the second half of the Court's term. Then at the end of June 2013, the Supreme Court GVR'd the case based on Salinas v. Texas -- the uncommon sense case that says that you have to speak in order to remain silent. To note, Sessoms had a different name up in the high court due to a new warden: Grounds v. Sessoms.
Sadly again as a result of the GVR, Judge Fletcher's opinion is no longer on the books. My sense is that the GVR was a compromise among the liberal and conservative judges to avoid having to deal with a case that is not an ideal candidate for a summary reversal. On a cynical and grisly level, it's possible that the conservative judges may also have decided to take a gamble and send it back down knowing that the lineup in a close 6 to 5 opinion was going to change now that Judge B. Fletcher could no longer participate. But no judges would actually think that way, would they?
On remand, the Ninth Circuit ordered further briefing on whether Salinas is relevant to Sessoms. Obviously, it isn't. And I think that's probably why the court framed the question as whether that case is "relevant" as opposed to what "impact" it had on the case.
I checked the lineup for the new en banc panel (you have to scroll down a ways on the Ninth Circuit's en banc page to find it). The lineup remains the same, except Judge M. Margaret McKeown has now replaced B. Fletcher. She is a Clinton appointee and has been around for awhile. I have been told that it's a pretty good draw for the habeas petitioner.
Going be interesting to see what happens here.