Metropolitan News-Enterprise


Tuesday, February 19, 2008


Page 3


Court: “I Plead the Fifth” Is Not an Ambiguous Assertion of Rights


By STEVEN M. ELLIS, Staff Writer


An en banc panel of the Ninth U.S. Circuit Court of Appeals on Friday tossed out a Shasta County man’s conviction of a murder he confessed to because authorities violated his right against self-incrimination when they continued to interrogate him after he repeatedly told them, “I plead the Fifth.”

Holding that Jerome Alvin Anderson unequivocally invoked his right to remain silent and end the interrogation when he made the statements, a majority of the 15-judge panel ruled that the Third District Court of Appeal’s determination that Anderson’s invocation of his rights was ambiguous, and its determination that Anderson waived the right when he responded to the questions of officers who ignored his invocation, were unreasonable factual determinations in light of clearly established U.S. Supreme Court precedent.

Anderson was found guilty of murder by a jury in 1998 for the execution-style shooting of his friend Robert Clark in a dispute over a stolen car. He was sentenced to life in prison without the possibility of parole.

A key piece of evidence against Anderson was a confession that he gave to officers of the Shasta County Sheriff’s Department who took him into custody for a parole violation three days after the shooting.

The officers initially questioned Anderson about the murder, but when they began asking him about his drug use on the day of the murder Anderson stated repeatedly that he was “through with this,” that he wanted to “be taken into custody” and that “I plead the Fifth.”

One of the officers asked Anderson, “Plead the [F]ifth. What’s that,” and continued to question him until Anderson later asked for a lawyer. The officers turned off the tape recorder, but then questioned him further—leading to the confession—after Anderson reinitiated the discussion.

Shasta Superior Court Judge James Ruggiero rejected Anderson’s challenge to the admissibility of his confession at trial, and the Third District Court of Appeal agreed. Writing for the Court of Appeal, Justice Coleman Blease, who was joined by Justices Richard Sims III and Rodney Davis, concluded that Anderson’s invocation of his right to remain silent was ambiguous because Anderson’s comments were “ambiguous in context.”

Blease wrote that Anderson’s comments could have been interpreted as a refusal to talk about his drug use, rather than a desire to terminate the entire interview, and said that the officer had asked a legitimate clarifying question by asking Anderson what he meant. Blease also wrote that Anderson waived any invocation of the rights to silence or counsel when he re-initiated the interrogation after the officers turned off the tape.

However, Judge M. Margaret McKeown wrote for the Ninth Circuit that the Court of Appeal’s decision was both unreasonable and contrary to precedent the U.S. Supreme Court had clearly established in Miranda v. Arizona (1966) 384 U.S. 436.

“[S]urely,” she wrote, “when a criminal defendant says, ‘I plead the Fifth,’ it doesn’t take a trained linguist, a Ph.D, or a lawyer to know what he means.”

McKeown rejected the Court of Appeal’s use of context to conclude that the statements were ambiguous, writing that, “[u]sing ‘context’ to transform an unambiguous invocation into open-ended ambiguity defies both common sense and established Supreme Court law.

She similarly rejected the determination that the officers had asked Anderson a legitimate clarifying question and that Anderson had waived his right against self-incrimination by continuing to talk to them.

“Instead of scrupulously honoring the request,” she wrote, “the interrogating officer decided to ‘play dumb.’”

Writing that the situation brought to mind the lyrics “What part of ‘no’ don’t you understand?” in a song popularized by country music singer Lorrie Morgan, McKeown asked “[w]hat about the words ‘I plead the Fifth’ is unclear, ambiguous, or confusing to a reasonable officer?”

“Nothing,” she answered. “The officer thought that continuing the interrogation was ‘reasonably likely to elicit an incriminating response’…. And he was right.”

McKeown continued:

“We cannot simply suppress the portion of the interrogation that occurred after the invocation of the right to silence and before Anderson’s purported re-initiation of the interrogation. Doing so would eviscerate the mandate to “scrupulously honor[ ]” the invocation of Miranda rights.”

Judges Mary M. Schroeder, Stephen Reinhardt, Sidney R. Thomas, Kim McLane Wardlaw, William A. Fletcher, Ronald M. Gould, Richard A. Paez, Richard R. Clifton, and Sandra S. Ikuta joined McKeown in her opinion.

In dissent, Judge Richard C. Tallman, joined by Judge Consuelo M. Callahan, disagreed with the majority’s conclusion that Anderson’s invocation was unambiguous.

Quoting the Court of Appeal’s statement that there was no “clear-cut Supreme Court rule that certain magic words automatically bring all questioning to a halt—regardless of the circumstances of the interrogation,” Tallman wrote that “[i]nvoking the lyrics of a popular Country-Western song in lieu of Supreme Court authority is not good enough.”

Tallman similarly rejected the majority’s conclusion that the officer’s clarifying question was not legitimate, writing that “[a]dmittedly, the detective could have phrased his clarifying question differently, and perhaps he should have uttered it with less sarcasm, but a poorly-phrased question without more is not grounds to grant federal habeas corpus relief.”

Judge Barry G. Silverman, joined by Judge Johnnie B. Rawlinson, wrote separately to concur with the majority on the basis that the officer’s “feigned ignorance of the Fifth Amendment” was not a legitimate clarifying question.

Judge Carlos T. Bea also wrote separately to concur with the majority’s conclusion as to Anderson’s invocation and the legitimacy of the officer’s clarifying question, but he dissented with the holding on the grounds that the record showed a “clear waiver” by Anderson of his rights because the police had stopped the interrogation when Anderson asked for a lawyer, and the confession had occurred only after Anderson reinitiated the conversation.

The decision may leave Shasta County District Attorney Gerald Benito with the decision whether to retry Anderson without the use of the confession or to allow him to go free.

“We’re not done fighting by any stretch of the imagination,” Benito said Friday in an interview with the Sacramento Bee.

“We will first ask the (California) Attorney General’s Office to take it to the (U. S.) Supreme Court. If that doesn’t work, we will review what evidence we have left with the idea of a retrial.

“We have no intention of letting Mr. Anderson walk out of prison without paying for what he’s done,” Benito said.

A spokesperson for Attorney General Jerry Brown said that the attorney general thought that the Court of Appeal had decided the issue correctly, and that the dissent made good points and provided a basis for upholding the judgment.

He said that no decision had yet been made on whether to appeal the decision to the U.S. Supreme Court.

Anderson’s attorney, Charles M. Bonneau, could not be reached for comment on Friday.

However, attorney Peter C. Pfaffenroth, who argued in the case on behalf of amicus curiae the National Association of Criminal Defense Lawyers, told the MetNews that the decision “definitely seems to align with intuitive sense of what rights are and the respect authorities should show to them.”

Pfaffenroth said that the lower court decisions threatened Miranda by opening the door “too broadly” to attempts to import context on “a completely clear right to remain silent.”

The case is Anderson v. Terhune, No. 04-17237


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