Metropolitan News-Enterprise


Monday, December 31, 2001


Page 1


Ninth Circuit Judges Spar Over Ruling That Allows Use of Illegally Obtained Statements as Evidence


By ROBERT GREENE, Staff Writer


The Ninth U.S. Circuit Court of Appeals on Friday left intact its own September ruling allowing some illegally obtained statements into evidence, sparking sharp words by Judge Diarmuid F. O’Scannlain in support of the ruling and Judge Stephen Trott in dissent.

In a rare concurring opinion accompanying the rejection of a full en banc rehearing, O’Scannlain blasted “Judge Trott and his merry band of dissenters” for attempting to turn the court into a “super-Citizens’ Police Review Board” that rejects cases based on what judges consider improper police tactics.

“In short, not everything that this court might consider ‘bad’ (or ‘improper’) is accordingly unconstitutional,” the judge said.

The opinions came in the case of Jody Myesha Orso, who was convicted of robbing a letter carrier after postal inspectors delayed giving her Miranda warnings in order to coerce her into incriminating herself.

A three-judge Ninth Circuit panel threw out the conviction a year ago, ruling that Orso’s statements even after Miranda warnings were finally given should have been suppressed as the fruit of illegal questioning. But an 11-judge en banc panel unanimously reinstated the conviction in September, ruling that the Mirandized confession was admissible, even though postal inspectors first illegally obtained the incriminating statements before the warnings were given.

Unlike in other circuits, in which en banc hearings include every judge on the court, Ninth Circuit en bancs are limited to 11 judges due to the size of the court.

But a special procedure allows a judge to call for a “full” en banc rehearing, meaning an extra layer of review consisting of all 28 judges in the circuit (there are currently 25 judges and three vacancies).

Trott called for just such a rehearing, but failed to receive the necessary majority vote from his colleagues.

Votes on such matters are not public and it is not clear whether every judge voted, or how they voted. But many judges declined to keep a low profile on the issue and made clear the sharpness of the division on the court by signing onto O’Scannlain’s concurrence or Trott’s dissent.

Joining Trott’s dissent against denying the full en banc rehearing were Judge Stephen Reinhardt, who wrote the original December 2000 opinion for the three-judge panel, and Judges Harry Pregerson, Michael Daly Hawkins, Wallace Tashima, Sidney Thomas, Kim Wardlaw, Raymond G. Fisher and Marsha Berzon.

It was a reversal of opinion for Hawkins, who in September was one of five judges who joined in a concurrence by Judge Richard A. Paez. Paez blasted the postal inspectors for admittedly having deliberately failed to advise Orso of her Miranda rights, and for having engaged in “subtle” coercion, but agreed “with some  reluctance” that the confession was voluntary and therefore admissible under Supreme Court precedent.

But O’Scannlain also has changed his mind on the case. He was on the panel with Reinhardt a year ago and wrote a separate concurring opinion.

O’Scannlain wrote the September en banc majority opinion. In his concurrence Friday, he was joined by Judges Alex Kozinski, Andrew Kleinfeld and Ronald M. Gould.

The opinion was geared almost entirely as a response to Trott’s dissent.

“Judge Trott’s impassioned dissent from our denial of full court en banc rehearing in this case makes clear he disapproves of the methods that the police employed which produced Jody Orso’s Mirandized confession in this case,” O’Scannlain said. “His views are perfectly reasonable. And who knows—if this court were free to rewrite Fifth Amendment law I might well agree with him. But we are not free to rewrite the law. And that is where I part company with Judge Trott and his merry band of dissenters.”

He criticized Trott for trying to identify “improper tactics” as a new category of police conduct that requires the same “fruit-of-the-poisonous-tree” analysis that applies to Fourth Amendment search and seizure violations.

“It seems that, at least for now, Judge Trott is content to give content to his newfound category by defining it as ‘wittingly and purposefully’ asking questions before giving Miranda warnings...,” O’Scannlain added in a footnote. “Fine for today, but why stop there? Why not make ‘improper tactics’ coextensive with ‘anything that two out of three judges on a panel don’t like,’ effectively converting this Article III court into the aforementioned super-Citizens’ Police Review Board?”

At the heart of the controversy is the effect of now-ubiquitous Miranda warnings, and of the failure of officers to give them before beginning questioning. Many court observers argue that the U.S. Supreme Court’s ruling last year in Dickerson v. United States put to rest any lingering doubt over the 40-year-old Miranda case, which required law enforcement officials to advise suspects of their rights to counsel and against self-incrimination.

Dickerson said Miranda announced a constitutional rule, and not merely, in Trott’s words, a “fungible ritual for which something lesser could be substituted.”

Instead, he said, Orso’s case will stand for the proposition that Miranda may be freely violated in order to soften up a suspect, as long as the only statements to be introduced into evidence come later, after Miranda warnings are belatedly given.

“The grand irony here is that the Supreme Court in Dickerson told Congress that it could not substitute by legislation a voluntariness test in place of Miranda’s commands, but our limited en banc court’s  decision gives that very power to the executive branch of our government,” Trott said. “We do so by allowing the police to manipulate the voluntariness test and to cancel out their knowing constitutional violations that produced the inculpatory evidence in this case.”

Orso was arrested on a warrant after a postal worker identified her as the person who robbed her of post box keys. Postal inspectors handcuffed her and drove her to an office without giving her any Miranda warnings en route.

The inspectors acknowledged telling Orso falsely that a witness thought she had seen a gun, which would increase the maximum penalty from 10 years to 25.

When the inspectors then said they didn’t think Orso would get more than five years, she said “Oh, I can do five years,” according to the testimony.

Galetti also said that Orso made the comment that “if the letter carrier said it’s me, then it must be me,” and that she acknowledged knowing a “gold-toothed boy” whom Galetti described as a suspect.

At the office, she was given Miranda warnings and signed a waiver of her rights, then admitted to robbing the letter carrier. It was those statements, and not the earlier ones, that were admitted into court, over the objection of Orso’s lawyer.

The case is U.S. v. Orso, 99-50328.


Copyright 2001, Metropolitan News Company