Thanks to reader DB I see that I missed a Supreme Court GVR in a habeas case back on October 12.
The case is called Doody v. Schiro, 596 F3d 630 (9th Cir. 2010). In the decision, the Ninth Circuit granted habeas relief based on Miranda and voluntariness grounds. In other words, there was a Miranda violation and, notwithstanding the Miranda violation, the statement itself was involuntary under the due process clause.
The Supreme Court GVR'd the case on the basis of Florida v. Powell, a decision from earlier this year in which the Court basically held that a Miranda violation does not necessarily occur when the cops don't get the Miranda warnings exactly right. That's a slight oversimplification, but mostly true. Looked at another way, in Powell, the question was not whether they were misleading, or ambiguous, or confusing, but simply whether they were adequate.
But that's not the issue in Doody. There, the question was whether the warnings were clear and understandable. And they were a complete mess. Here's how the court described them:
During his administration of the warnings, Detective Riley emphasized that Doody should not “take them out of context,” and implied to a juvenile, who had never heard of Miranda, that the warnings were just formalities. This misdirection was coupled with repeated assurances that the detectives did not necessarily suspect Doody of any wrongdoing. Most significantly, in informing Doody of the right to counsel, Detective Riley deviated from the form containing the juvenile Miranda warnings, and ad libbed that Doody had the right to counsel if Doody was involved in a crime. Indeed, Detective Riley instructed Doody that he had the right to counsel “if you were involved in it ... but if you were, then that's what that would apply to[.]” The implication from this improperly qualified, unclear, and confusing warning was that Doody only had the right to counsel if he were involved in a crime. In such a circumstance, the invocation of one's right to counsel would be tantamount to admitting one's involvement in a crime. Overall, the fact that Detective Riley's explanation of a one-page Miranda warning form consumed twelve transcribed pages of text is a testament to the confusion generated by the detective's obfuscation.
So I am not quite sure I can agree with the GVR here. Powell seems to have nothing to do with the situation here. Oh well.
Getting back to Doody, the dissent in that case took issue with the paragraph quoted above, believing that the court did not follow its AEDPA responsibilities - a common complaint against the 9th Circuit. As DB predicted in his e-mail to me, I got a big kick out of the majority's response:
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. 663. 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.
Judge Kozinski in his concurring opinion also took on the AEDPA standard and said, "I write separately because I believe that deference is neither a blindfold nor a bandana." Interesting. I must admit when I first read it, I thought he had written "banana." That would have made no sense, but it would have been far more interesting to try and explain. "Bandana" fits a little better.
Shifting back to the GVR, it seems inappropriate for a different reason. Setting aside the Miranda issue, the 9th Circuit also concluded that the statement was involuntary as a matter of due process. So, even if the 9th Circuit is wrong about Miranda, Powell has no impact on the voluntariness argument.
Based on the questionable GVR, I am guessing we will see the 9th Circuit stick to its prior decision.
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