A convicted murderer will be released from prison  in this case based on a 9th Circuit opinion and cannot be retried absent rehearing or certiorari.

At trial, the prosecution introduced defendant’s confession of murder but without any other witnesses or physical evidence. The jury voted the death penalty, the trial judge affirmed the conviction, and the California Court of Appeal confirmed the judgment.   Jones filed habeas corpus in district court and the judge denied the petition.  Jones appealed to the 9thCircuit, and a 2-1 majority panel reversed the judgment on grounds the detectives violated the Miranda case.  The dissent took the majority to task.

Jones had been arrested and subsequently interviewed by two detectives. At one point during the conversation, Jones said “he didn’t want to talk any more,” but in the next sentence he said “because you [the detectives] aren’t listening” and continued talking. According to the majority, that first statement invoked Miranda and ended the conversation.  On its face, that interpretation is arguable, except in the next breath Jones continued talking.  In other words, he did not want to stop talking, he just wanted the detectives to listen, and he resumed.

Both interpretations are reasonable but in a federal habeas petition the 9th Circuit must defer to state courts under Supreme Court decisions. The majority ignored this injunction as it has so many times in the past. The majority said the detectives also lied to Jones  at another point in the conversation. The Supreme Court has never disapproved that ruse and, in fact, approved it. Jones was subjected to no threats, promises, or duress.  When the Supreme Court invented Miranda the rationale allegedly involved resolving the constant conflict between the officers and the suspect in respective versions of their conversations and to prevent any use of force or threats to a suspect in the secluded location of the police department.

This case turns into a Miranda debate between the panelists and an endless discussion of linguistics no suspect could understand. But once again the 9th Circuit uses its own decision and ignores the state court.  Rehearing is assured, and if denied and absent certiorari a murderer will go free on a misguided understanding he can now kill again.

Apparently the 9th Circuit has finally gotten the word to stop ignoring Supreme Court precedent and follow the law.  In a state habeas case admittedly containing evidence subject to reversal, the 9th Circuit’s most liberal judges actually affirmed a state court of appeal -although the facts are “troubling”, said the panel.

This case was ripe for reversal under 9th Circuit rules; a Miranda problem the panel would have solved in favor of reversal if not for the Supreme Court. Ninth Circuit judges like Miranda cases because the facts are easily reinterpreted and state court decisions ignored.

But the Supreme Court did deny cert. in a different excessive force case decided earlier by a 9th Circuit panel .  Perhaps the Mays case is just an accident.

There is something unusual about this case. It was initially decided on an unknown earlier date but the published date is in December, 2015.

The facts in the case are allegations of a sex violation to a minor who testified.  The prosecution also introduced a lengthy confession by the defendant. The jury convicted. The California Court of Appeal affirmed, the California Supreme Court denied review, as did the federal district court on habeas.  The defendant appealed to the 9th Circuit..

The argument applied to the Miranda warnings given by officers to the defendant pre trial, and its judicial interpretation of the response by the defendant.  The legal issue was another squabble over a rule invented by the Supreme Court. The 9th Circuit panel, as usual, ignored the two California courts, the federal district court and AEDPA.  This is another case where two jurisdictions try the case-state and federal.  The 9th Circuit demonstrates no deference to the state as required by the Supreme Court and, of course, the defendant goes free.

The defendant testified in court comparable to his confession to officers. Now he is  released, the minor will have to testify again and endure the experience-if she want to go to court again-at a re trial. As of July 9,2016 state attorney general Harris has done nothing.

Another state case reversed by the 9th Circuit “we know better” on habeas corpus, and that federal  decision should be appealed to  the Supreme  Court.

The purpose of the Miranda rule is to avoid involuntary confessions.  Instead, the courts argue over the language used when the defendant raises no issue of compulsory confession initiated by police. The public pays a heavy price for this rule.

Another state court conviction reversed by a 9th Circuit panel on habeas corpus grounds after the California Court of Appeal affirmed the verdict of first degree murder.

The evidence was overwhelming. The defendant Lujan repeatedly expressed his intention to kill his estranged wife.  He did so by lying in wait, smashing her head with a concrete block and, at the same time, killed a deputy sheriff whom she was dating. Killed the same way.

Detectives interviewed Lujan, informed him of his right to silence, and discussed the right to counsel but not precisely as worded in the standard Miranda card. Later on, the defendant asked if he could have an attorney present, and the detective explained obtaining an attorney on Sunday might be difficult but the decision was up to him.  The detective added some informal information and said the decision to have a lawyer lay in the defendant’s hands. Without reciting all the questions asked of Lujan, the tenor of the conversation was cordial and non threatening. The entire conversation was recorded and confirmed the absence of any coercion or threats.

At the trial in state court, Lujan admitted committing the murder, and the jury found him guilty. On appeal, the California Court of Appeal agreed the Miranda admonition “incomplete” but the confession at trial restating the same information Lujan  gave the detective created harmless error.  The federal district court on habeas corpus agreed on the incorrect explanation of of the Miranda warning. The 9th Circuit embraced this decision citing Harrison v. U.S., 392 U.S. 219 (1968-a case decided during the hey days of Supreme Court constitutional inventions).

The purpose of the Miranda rule informing suspects of the right to counsel and silence emerged to remove the constant argument of inconsistent statements between law enforcement officers and suspects occurring in a confined and threatening environment.  The Supreme Court attempted to eliminate allegations of “involuntary” statements elicited from suspects in custody by advising them of their right to silence and to the assistance of counsel. Well intentioned, but repeatedly expanded by other courts beyond its rationale as written by the Supreme Court.  Lujan is an example.

Because detectives did not read the form Miranda card but spoke to Lujan informally, without threatening or misleading him, the 9th Circuit panel granted habeas.  The trial court even ruled the confession was not involuntary.  In other words, the entire rationale underlying Miranda was absent. That consequence did not deter the 9th Circuit despite the California Court of Appeal decision or AEDPA.  In fact, because the defendant had confessed at trial, the admissibility of the confession in custody became redundant.  “No”, said the panel, if the inadmissible confession induced the defendant to testify it constituted “fruit of the poisoned tree” and could not be introduced in evidence.

Here is a case of a voluntary confession, confirmed by the defendant’s testimony at trial, upheld on appeal by a state court, but reversed by the 9th Circuit. The purpose of the Fifth Amendment prohibition of compulsory self incrimination is completely lacking in the  transcript of the confession.  The detective tried to explain to Lujan the option of talking to him or not, with or without an attorney.  According to the 9th Circuit panel, the detective failed to tell Lujan he could have an attorney before and during the questioning.  This is form over substance and a complete mis application of Miranda rationale.  Now a   man unquestionably convicted of murdering two people may go free or his retrial impaired.

It is time for Congress to end the endless charade of 9th Circuit reversals of state court convictions many years afterward on habeas corpus grounds.   Lujan is a perfect example. Under AEDPA the federal court has a heavy burden to reverse state courts on collateral review and must accept a reasonable state court decision-even if incorrect.  In reading the Court of Appeal decision, the state court judges interpreted the Miranda admonition and the questioning reasonably.

Note:  In November, 2014 the Supreme Court denied cert. in this 1998 case.  This unjust decision, quibbled over by a 9th Circuit  panel on habeas corpus after affirmance by the California Court of Appeal in a clearly established brutal murder case,  is a disgrace.  The 9th Circuit case is 14 years old and must be retried for the third time.

The 9th Circuit will not adhere to AEDPA no matter the verbal lashings issued to it by the Supreme Court.  In its latest term, the Supreme Court reversed  the 9th Circuit panel who had granted habeas corpus in three  state court convictions oblivious to the Supreme Court remonstrating the 9th Circuit for employing de novo review insisted of the limitations imposed by AEDPA.  The 9th Circuit quoted the statute in its decisions and then ignored it.

After the end of the Supreme Court term in July, the 9th Circuit issued two more cases destined for reversal.  In Thompson v. Runnel, seven 9th Circuit judges dissented from a decision in a murder case in which the defendant confessed voluntarily prior to Miranda wantings.   After the officers administered Miranda warnings he confessed again.  According to the panel majority, the police deliberately “delayed” reciting the Miranda admonition in violation of a Supreme Court decision objecting to this practice.  There is no evidence the delayed warning was intentional or deceptive.

The numerous dissenting judges wrote another criticism of the majority panel members.  Under AEDPA, state court decisions are reviewed under Supreme Court law effective  at the time the Justices deliver their opinion.  In Thompson, the Supreme Court delivered its “delayed Miranda” opinion five months after the Washington state court filed its original decision.

Here is the latest test of AEDPA as written by the Supreme Court in Harrington v. Richter, 131 S.Ct. 770 (2011): “As amended by AEDPA,2254 (d) stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings. It preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court’s decision conflicts with this Court’s precedents. It goes no farther. Section 2254 (d) reflects the view that habeas corpus is a “guard against extreme malfunctions in the state criminal justice systems,” not a substitute for ordinary error correction through appeal. As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court’s ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement;” cited in Tio Sessoms v. Runnel, 2011 WL 2163970 (C.A. 9).

In Ocampo v. Vail the prosecution admitted statements from an absent witness arguably inconsistent with the Supreme Court decision in Crawford. The absence of the witness obviously was argued by defense counsel to the jury.  The statement was not interpreted by the 9th Circuit for what the witness said but what he did not say.  The jury heard all the evidence, well aware that one of the witnesses was an accomplice whose testimony was impeached.  The jury heard the inconsistent testimony and voted unanimously for guilty.  The 9th Circuit applied its usual reweighing of the evidence and granted habeas corpus although the Washington courts had affirmed the judgment.