Metropolitan News-Enterprise


Friday, January 4, 2008


Page 1


Panel Upholds Conviction of Man Who Killed Ex-Wife


By a MetNews Staff Writer


A phone conversation initiated by a suspect in a murder case who was in jail for an unrelated offense did not constitute a “custodial interrogation” under Miranda v. Arizona (1966) 384 U.S. 436, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

The panel affirmed U.S. District Judge John Coughenour’s ruling, in the U.S. District Court for the Western District of Washington, denying a habeas corpus petition by Habib Saleh. Judge Diarmuid F. O’Scannlain, writing for the Ninth Circuit, said Washington state courts were not unreasonable in ruling that Seattle police did not violate Habib Saleh’s right not to incriminate himself.

Saleh was convicted of first degree murder of his ex-wife, Elizabeth Edwards. Edwards was found in her Seattle home on July 9, 1996 having been severely injured.

Serious trauma to her head crushed her sinus cavities and pushed fragments of bone into her brain. A week later she succumbed to complications from the brutal attack.

Police eventually focused their investigation on Saleh. Evidence later presented at trial included a history of violence with Edwards. He had also been cut the night of the attack and the scar of the wound matched the shape of a stain found in front of Edward’s apartment.

Blood consistent with his DNA was found outside the apartment. And he had attacked his son-in-law in a similar manner within an hour of the attack on Edwards.

Saleh was already incarcerated for the assault on his son-in-law when he was visited by a Seattle police detective on two occasions in March of 1998.

On the first occasion, the detective read Saleh his Miranda rights prior to speaking with him. On March 25th Ramirez gave Saleh a written copy of his Miranda rights prior to interviewing him again. After requesting an attorney Saleh made comments about wanting to be executed so he would be reunited with Edwards even though he denied killing her.

The trial court ultimately suppressed comments made at both of these meetings. It determined the state did not show Saleh adequately understood his Miranda rights at the first meeting. And it found that since Saleh’s statements at the second meeting were part of a custodial interrogation and he had already requested an attorney prior to making the statements, they too were inadmissible.

After the second meeting, however, Saleh made a phone call to the detective where he repeated his statements about wanting to be reunited with his ex-wife while still denying any involvement in her murder. The trial judge admitted the statement, and Saleh was convicted of first degree murder.

The Washington Court of Appeals upheld his conviction.

O’Scannlain, writing for the Ninth Circuit, said the state court rulings were not contrary to, nor an unreasonable application of, Mathis v. United States (1968) 391 U.S. 1. O’Scannlain explained that Mathis involved a conversation initiated not by the prisoner himself, but by a federal agent, and in that case the suspect was not free to end the conversation at any time.

Saleh further argued that the statement should be suppressed under the “cat out of the bag” theory in which statements made under prior violations of Miranda would taint subsequent statements. Referring to Oregon v. Elstad (1985) 470 U.S. 298, O’Scannlain found that even after a prior Miranda violation, statements voluntarily made that required no Miranda warnings themselves need not be considered tainted.

Since Saleh’s comments were initiated by him in his call to the detective and he was free to end it at any time it was not a custodial interrogation, the judge said.

He wrote:

“Although this case is distinguishable from Elstad inasmuch as there was no intervening Miranda warning between the March 25 interrogation and the March 26 phone call, because the latter was not a custodial interrogation, no such warning was required.”

Senior Judge A. Wallace Tashima concurred in the opinion. Judge Marsha Berzon wrote separately, saying she would hold that a lack of valid Miranda warnings after the unwarned inculpatory statement was first made renders the second statement inadmissible, but that Ninth Circuit precedent holds otherwise.

The case is Saleh v. Fleming, 04-35509.


Copyright 2008, Metropolitan News Company