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5 Judges Issue 3 Dissents From Habeas Grant to Interrogated Teen

By William Peacock, Esq. | Last updated on

Yesterday, we (again) brought you the tale of Tio Sessoms, a then-teenaged suspect who kinda-sorta asked for counsel. The en banc Ninth Circuit, on its third take on the case, granted habeas relief for the second time, after a Supreme Court cert. grant and summary reversal.

This time, a majority of the Ninth Circuit held that Sessoms' two statements ("There wouldn't be any possible way that I could have a -- a lawyer present while we do this?" and "Yeah, that's what my dad asked me to ask you guys ... uh, give me a lawyer.") were an unambiguous exercise of his right to counsel.

Chief Judge Alex Kozinski "reluctantly" dissented. Four other judges also dissented across two more opinions.

Why? One word: deference.

Kozinski: Sessoms Screwed

Chief Judge Kozinski, "reluctantly dissenting," called this a "sad and troubling case." He had no doubt that Sessoms wanted a lawyer, that the officers understood the request, and that they pressured him into dropping the request and incriminating himself. He called out the state courts for playing along: "the Court of Appeal's opinion is carefully crafted to exploit every ambiguity in the timid utterances of a scared and lonely teenager."

However, the question at this point isn't whether Sessoms requested a lawyer, Kozinski explained:

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.

Why? The wide deference granted by the Antiterrorism and Effective Death Penalty Act (AEDPA) mandates such an inquiry: basically, whether there is any possibility that the state court's opinion makes sense.

Chief Judge Kozinski stated that "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.

"When courts bend over backwards to salvage evidence extracted by questionable methods, they encourage police to take such shortcuts rather than doing the arduous legwork required to obtain hard evidence," Kozinski warned.

Callahan: Prepare for SCOTUS Reversal (Again)

Judge Consuelo Callahan, in a solo dissent, also cited deference as a reason to deny relief. He not only felt that the California Court of Appeal's clear opinion "speaks for itself," but argued that the "majority opinion appears to reflect a disagreement with the California Court of Appeal's view of the facts, not its application of clear Federal law."

He felt that the majority opinion conflicted with Salinas, and warned: "I would follow the Supreme Court's advice rather than challenge it to order our compliance."

Murguia: Did We Mention Deference?

While Kozinski and Callahan wrote solo co-dissents, Judge Mary Murguia wrote the main dissent, joined by four judges.

The sum of it? Deference. Lots and lots of deference. So much deference, in fact, that the Ninth Circuit can only grant habeas relief where "there is no possibility fairminded jurists could disagree that the state court's decision conflicts with [the Supreme] Court's precedents."

Judge Murguia wrote that Sessoms' first statement was "punctuated with hesitation and conditions and phrased in the negative" and "is subject to different interpretations and comparable to statements that this court and other courts have found ambiguous." As for the second statement, "A reasonable jurist could conclude that telling a detective, 'My dad told me to ask for a lawyer' is different than saying, 'I want a lawyer.'"

When in doubt, deference applies, and habeas relief must be denied.

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