*1 judgment mand with directions to enter or denied” the tax refund yet approved government. favor of the claim. however, Trustee, points to cases REVERSED and REMANDED. taxpayers may rely on the
holding that
written, oral, representations of and even See, e.g., Haber v. employees. United
IRS (Fed.Cir.
States, 1051, 1053-54 831 F.2d
1987) right rely had on IRS (taxpayer taxpayer’s accoun representation
oral had prior
tant that notice of disallowance withdrawn, so that later notice of been Stephen Wayne ANDERSON, filing re period disallowance initiated for Petitioner-Appellant, suit). nothing There is the record fund here, however, suggest that the Trustee actually upon Septem the letter of relied Warden, CALDERON, Arthur deciding not to file suit before ber 17 Respondent-Appellee. year the two statute September 19—when 549(d) § expired under of limitations No. 98-99024. —but deciding to file a week nevertheless suit Appeals, United States Court 24, 1991. See September later on Watkins Ninth Circuit. Army, 875 F.2d v. United States (9th Cir.1989) (en banc) (noting require Argued and Submitted June seeking estoppel is re party ment Filed Nov. show that he relied to his detri quired to party on conduct of the that is to be ment
estopped). Similarly, the Trustee could possibly September have relied on the
24, 1992, in missing notice of disallowance claiming avoidance under
the deadline
§ more than 549 when that letter was sent (be year passed after the deadline had
cause, course, solely notice referred claim, opposed
to the refund already claim that was
predicate avoidance
barred). reasons, foregoing we For equitable estoppel
conclude that does not
apply.
IV. CONCLUSION
The Trustee’s tax refund claim under 26 § predicated upon 7422 is the exer-
U.S.C. powers pursuant
cise of her avoidance § 549. Because she cannot sat- U.S.C. 549(d) limitations, §
isfy the statute of actions, avoidance she is governs
which authority. exercising
time-barred from the district court’s
We therefore reverse it reverse
judgment with directions grant summary bankruptcy court’s in favor of the Trustee and re-
judgment *8 Rocconi,
Margo A. Federal De- Public Office, California; Angeles, fender’s Los Horwitz, A. La- Robert S. Law Offices of Taylor, petitioner-appellant. var for the Gonzalez, Attorney Gil P. Office of Gen- eral, California, respon- for the Diego, San dent-appellee. offense,
at the time of the
competent
and
to stand trial. Because
holiday
and
events,
other
seventy-six hours elapsed be-
tween Anderson’s arrest and his arraign-
29,1980,
ment May
on
at
p.m.
1:10
TROTT, FERNANDEZ,
Before:
A
County jury
San Bernardino
convicted
McKEOWN,
Judges.
Circuit
Anderson of
degree felony
first
murder
special circumstances,
with
finding that
TROTT,
Judge:
Circuit
murder of
Lyman
Elizabeth
occurred dur-
Lyman
Elizabeth
year
was
old
ing burglary.
a
jury
sentenced him to
retired piano
teacher. She lived
herself
death.
Supreme
The California
Court af-
on Church Street
in Bloomington, San
firmed the
granted
convictions but
his re-
County,
Bernardino
California. About one
quest
special
for a new
circumstances/pen-
midnight Monday,
26,
hour after
May
alty phase trial
ground
on the
jury
that the
1980—Memorial
Day petitioner
—
(as
erroneously
had
not been asked
re-
Anderson,
26-year
escapee
old
law)
quired by California
to determine
Prison,
Utah State
broke into
Ly-
Mrs.
whether
homicide was intentional. See
man’s
cut her phone line with a
home*
Anderson,
People
58, 61,
knife,
38 Cal.3d
and shot
her
the face from a
(1985).
Cal.Rptr.
694 P.2d
distance of 8 to 20 inches with his .45
Such a
handgun
finding
necessary
caliber
at
lay
as she
in her
that time
bed.
Anderson then covered her dead
before a defendant
body
eligible
could be
blanket,
recovered
incriminating
ex-
capital punishment. A
second
retry-
pelled casing from the hollowpoint bullet
ing special circumstances and
penalty
her,
that killed
methodically
ransacked
phase of Anderson’s
years
case
later con-
money.
her house for
He found less than
cluded in 1986 that the murder of Eliza-
Next, Anderson
sat down Mrs.
$100.
Lyman
beth
again
was intentional and
sen-
Lyman’s kitchen to eat a dinner of noodles
him
tenced
to death.
eggs.
His meal
interrupted,
how-
Eventually, having failed in state court
ever, by deputy sheriffs called to the scene
to undo either his conviction or his final
suspicious
neighbor who had been
sentence,
Anderson,
death
People
see
by barking
awakened
dogs and had seen
453, 485,
Cal.3d
276 Cal.Rptr.
Lyman’s
Anderson Mrs.
house through
(1990),
P.2d
Anderson went to
a window.
deputies
arrested
federal district court with a petition for a
8:47 a.m. and took him to the
corpus.
writ of habeas
After lengthy pro
San Bernardino Sheriffs Substation in
ceedings, which included an exhaustive evi
Fontana.
dentiary hearing, his numerous claims
Enter
County
San Bernardino
Sheriffs
were denied. He now comes to us on
Department Homicide Detail Detectives
appeal from the denial with claims aimed
Wes Daw and Dennis O’Rourke. Daw and
at both his conviction and his sentence.
promptly
O’Rourke
advised Anderson of
The claims are as follows:
rights,
freely
Miranda
after which he
1) That the State violated the disclosure
fully
burglary
confessed to the
of Mrs.
Brady
rule of
v. Maryland, 373 U.S.
Lyman’s house
shooting
and to
her. He
to him as (1995). McLaughlin, 500 U.S. Riverside v. of 1661, 44, 114 49 L.Ed.2d 111 S.Ct. not Brady require does Because (1991). part prosecution the the bad faith on 3) im- the trial court made That State rule process, of due the encom violation to the penalty comments proper only police to in passes evidence “known procedural the his- about phase prosecutor.” and not vestigators case, including of the comments tory 438, at 1555. In Kyles, 514 U.S. 115 S.Ct. been previously that Anderson had therefore, comply Brady, order to death, to but that sen- the sentenced duty to prosecutor “the has individual appeal. had overturned on tence been known to learn favorable evidence 4) the trial court erred That State acting government’s be the others ju- guilt-phase failing to instruct case, police.” Id. including half in the included rors on lesser offenses. 437,115 1555. S.Ct. 5) That he was the victim ineffective assistance counsel. use a test to mea three-part We 6) jurors penalty phase prema- That the a failure to disclose amount sure whether
turely began deliberations. (1) Brady ed to a violation: the evidence 7) accused, district court erred That federal issue must be “favorable” to refusing limit the use of to State’s it is or exculpatory, either because habeas
privileged (2) materials federal evidence must impeaching; is corpus proceedings. State, suppressed by have either been (3) the willfully inadvertently; sup or jurisdiction pursuant has This court “material” pressed evidence must be under 2253, § judg- we affirm U.S.C. punish guilt state law to accused’s ment of the district court. ment—i.e., have prejudice must ensued.
I
263,
Greene,
v.
See Strickler
527 U.S.
281-
1936,
(1999);
Anderson: I’m only reason ... now, just ... I right around now—and talking you it, you about thinkin’ got to you fact that Wes is—is ... know, me you told what know, indicated, you you Um-hmm. O’Rourke: every- us ta ... wanted tell wait I better Right ... now Anderson: that you I thing told they got— and see what willing to sit were hey, we who has? what Of O’Rourke: know, listen, you to tell you Lake. wanted whatever Salt Anderson: I still am. us. Okay. Fine. O’Rourke: Ah. Anderson: I mean ah ... didn’t I mean Anderson: But goes. far as no blind —as that you run on O’Rourke: you ah ... that’s a decision again, game or nothin’ you ... we’re make and clicked when have to somethin’ talkin’, know, maybe make it for try to you gonna any way you in or force oughta ya, I wait. to us make statement ... just Okay. right, All O’Rourke: at all. run some- briefly, let me I—I’m by you so that I know. thing Anderson: ... my mind straight you that bet- you if feel But O’Rourke: indicated you ... had out until find you ter wait sort ... a—some ah about have, that’s— what up in hit Salt of a contract you.— totally up to that’s ... Ah City, Utah. Lake ... gonna now I’m Right Anderson: I— point, at this Our intentions well, ... I think it’s—it’s are, ... Steve, gonna we’re vir- ... right now silence with Salt we’ll be contact well, ... ... it’s tue City— Lake for me right now just better Uh-huh. Anderson: to wait. we’ll have —or whoever—but O’Rourke: gon- right. All We’re Okay. O’Rourke: you some teletype out interview. this na terminate today— time understood and O’Rourke Daw Both Uh-huh.
Anderson: wanting to about Anderson’s statements ... us- —later afternoon O’Rourke: had City Lake authorities see what Salt ... the various names ing crimes to talk about he continued before ... ... ah you’ve used authorities to talk to request Utah as that we have and the weapon 2451; SER jurisdiction. [ER is a apparently which ... he not inter- Daw did 2076] testified ... h- in our weapon used as invocation said pret what Anderson test-fired will be homicide [ER 2450] silent. right remain of his available to and will be here it as a “reviewed [sic] Daw said that know, you agencies, other talk to that he response would conditional ... bul- comparison far as Accordingly, 2455] [ER us later.” they have—I lets—whatever City Police Lake called Salt O’Rourke Neither does don’t know. in turn to him which referred Department, Wes. County Sheriff’s Office the Salt Lake Jerry Thompson of eventually Sergeant Uh-huh. Anderson: agency. Thompson was punctuated familiar rative form by clarifying ques- *12 a walk-away Anderson as escapee from tions—to two homicides. The first homi- Prison, State knowledge Utah had cide was what Anderson described as the killings two Utah for which Anderson killing Glashien, contract of Timothy kill- responsibility. claimed ing commissioned drug traffickers after later, days 28, 1980, Two May walkaway escape from Utah Thompson traveled to San Bernardino to State Prison. Anderson said he shot talk to Anderson. taped Their conversa- Glashien four times with the same hand- noon, began shortly tion after and it gun he had used to kill Elizabeth Lyman, opened with the usual ritual: $1,000 and that he paid for his efforts.
This is Jerry Detective THOMPSON of Scientific tests later confirmed his state- County Salt Lake Office. Sheriffs ments weapon about the he used. The is 5-28 of date time The second homicide for which I am conducting hours. an inter- Anderson took credit was the earlier stab- view with one Wayne Steven in bing death Utah State Prison of Robert ANDERSON, July DOB is 8th of ’53. Blundell, fellow inmate for whom He also uses the alias of Felix SMITH. Anderson said he had no use. Anderson during Present the interview is Tom got into an argument with Blundell in the GLASSER from the District Attorney’s kitchen area over reputation Blundell’s Bernardino, California, Office from San a snitch. responded Blundell to Anderson Sergeant Dennis O’ROURKE threat, with a sexual after which Blundell Office, San Bernardino County Sheriffs left the area “to get some milk for his and Detective Wes DAW from the San coffee.” picked up a kitchen County Bernardino Sheriffs Office. knife, Blundell, followed him stabbed Q. time, Felix, At this I know you been to death. Anderson explained to Thomp- your advised of Miranda but rights, son that he killed Blundell got because “he gonna I’m you advise ’em to again in my face wrong at the probly time and your protection. for own You have caught in [sic] me the wrong you mood right Any- remain silent. might say.” [Def-00096] thing you say will used court be against you. as evidence en- You’re interview, At the conclusion of this
titled to talk to attorney now and Anderson explained his motive and intent him present have now or at for initiating this contact with Utah au- during questioning. you time If thorities and for confessing to these addi- cannot afford an attorney, one will tional homicides: appointed you be without cost. Q. ... (Thompson): I Have or has you Do desire to consult with an anyone you else threatened in order attorney first or have one promised make this statement or the interview? you anything? A. No. (Anderson): A. No. Q. Okay, your having rights mind, Q. your You it on done own will? you do desire free go ahead talk A. me? Yes. A. Yes. Q. having your After rights mind? Q. anyone Has you threatened just that, uh, A. Yes. I’d say like to I promised you anything to make this did, uh, I made these statements statement? to, uh, clear simply up the fact A. No. people suspected, lot tvere crimes that shouldn’t Following this have been advisement and waiver both right suspected. to counsel right and the And that I had been silent, remain Anderson confessed—in nar- of it people informed various 5) interrogation was subsequent up be it should cleared subject of to a crime not the to do with limited anything didn’t my purpose interrogation. it. that’s main first And Utah,
here with these crimes
Cal.Rptr.
Pettingill, 21
Cal.3d.
added).
(emphases
P.2d 108.
con-
7:04 a.m.
asserts
Mos
urges
us to follow
State
Daw and O’Rourke
he had with
versation
case,
the State’s
ley
deciding this
*13
material evi-
favorable and
contained both
plainly incorrect.
Mosley
on
is
reliance
under Cali-
could
used
dence
he
Although
corpus
habeas
concerns
federal
suppress
law
his confessions to
fornia
to
of
with violations
the Constitution
itself
Blundell homicides. He
the Glashien and
law, the
rule relies for
Brady
and federal
notify
to
his attor-
the failure
argues favorability
of both
and
its determination
to his trial
neys
prior
of this information
law,
law;
materiality
federal
on state
respectfully
rule.
Brady
We
violated the
Supreme
the
Court
Pet-
and
California
disagree.
rejecting
that was
tingill made it clear
it
primarily
case
The California
Mosley
of a stricter
approach
favor
favorability
on
both the
relies
to establish
not on
of
standard based
the Constitution
this
materiality
and the
evidence Peo
States,
on
the United
the Constitution
238,
231,
ple
Pettingill,
v.
21 Cal.3d
145
247^18,
of the State of California.
Id.
(1978).
861,
Cal.Rptr.
incrimination,
police-initiated
all
custodial
Brady claim.
problems with Anderson’s
cease; and, any
interrogation must
state
First,
formally presented
it to
Su
ment
thereafter
deemed
be
made
was
in his
preme Court of California
habeas
inadmissible,
if
involuntary
pre
even
and
rejected
January 3,
it
petition, and was
by
warnings
ceded
Miranda
and
full
waiv
legal
The
and
factual
essence
240,
Pettingill,
Cal.3d at
ers. See
brings
desig
claim he
to federal
was
court
861,
Cal.Rptr.
tioning; and closed Brady lated in that it was both favorable authorities had no knowledge. The record groundless. and material is conclusively refutes the contention that Anderson retreated from his desire to talk problem second in favor of invoking right his to remain Brady claim is our inde fact, silent. Anderson testified in the it, pendent review of which we undertake penalty second phase that he talked to the only because of its close connection to his officers about the Glashien killing because delayed claim, arraignment clearly demon he had a pre-existing agreement with his strates us—as did to the district confederates to do so should he get ever court —that Anderson did not invoke his arrested, which we shall discuss right greater to silence May detail in Part II of opinion. conversation in question. San The district factually court Bernardino determined scrupulously after authorities hearing re- all the evidence spected simply request told to delay the conversa- the officers that he would wait to talk initiated, to tion Anderson Ser- when *14 authorities, City Salt Lake not that he had geant Thompson appeared scene, on the he changed his mind and decided after all not opened conversation with fresh Mi- to follow through on his volunteered desire randa warnings simple and three prelimi- to reveal what he had done in Utah. To nary questions to Anderson: quote court, the district Q. you Do desire to consult with an Anderson clearly conveyed willingness attorney first or have one during to discuss other if crimes a condition the interview? met, i.e. he found out what informa- A. No. tion the Utah authorities had. Q. Okay. Having your rights mind, O’Rourke informed Anderson that he you do go desire to ahead and talk was going contact to the Utah authori- to me? ties. He told Anderson that he and Daw A. Yes. only were talking to Anderson because Q. anyone Has you threatened or he told them that he wanted to talk promised you anything to make this crimes, about the other and reiterated statement? that he did not have to talk to them at A. No.
all. O’Rourke then in- terminated the terview arranged and for Anderson to Simply put, this case is not similar to be by Thompson. interviewed Fimitto, Pettingill, to or any to of the [ER upon 03554] cases which Pettingill relies. Pet tingill, subsequent interrogating offi
Given this understanding facts, cer “conceded that defendant previ had the district court “any concluded that fail- ously nothing done to indicate a ure to desire to disclose substance of the 7:04 to him.” a.m. talk 21 Cal.3d at interrogation to Cal. defense did not Brady Rptr. violate 578 P.2d Pettingill as 108. information contained himself therein explained was not favorable to the waived defense his right during and thus was not material.” [ER the third interrogation only 03555] because he words, In other the information as evi- “just wanted get to them my off back.” dence could not have been successfully We Id. are to any unable find cases or used in state to suppress court Anderson’s principle in relevant California law that Sergeant confessions to Thompson. prohibit police from talking suspect to a suspect when the wishes to talk. Pettin- Anderson at all knowingly times waived gill itself right contemplates to an different rule for attorney. agreed He to talk to Daw cases where “it suspect O’Rourke about the who initiates Ly- homicide, man and he the renewed volunteered a conversation po desire with the ” go beyond to that interview respect lice .... Id. n. 145 Cal.Rptr. other crimes about which San Bernardino circumstances, 578 P.2d In those 108. violation obtained were ensuing con- Interview only whether test is therefore, and, should Amendment “involuntary in the traditional Fourth fession poisonous “fruit of the improper as i.e., suppressed sense,” product “the be leniency made promises of tree.”
threats or interrogation.” the first police claim omitted). Amendment Anderson this Fourth (citation It was Is Id. of Salt Part of a Petition the visit Cognizable caused initiated who him, Ser- Corpus? Habeas talk Lake authorities Writ appropriately Thompson quite geant Powell, 428 Ordinarily, Stone clarifying conversation opened 49 L.Ed.2d U.S. wanted still that Anderson confirming we not hear (1976), require that would no has offered himself talk. Anderson proceed corpus federal habeas in a claim issue, either on this contradictory evidence e the Fourth it arises becaus ing declaration, affida- testimony, by way of Supreme quote the To Amendment. vit. Court, remarkably free investigation was This provided has State [WJhere in- designed to or tactics any pressure litigation of full and fair opportunity for promises No to talk. duce claim, the Consti- Amendment Fourth get were used leniency or threats pris- a state require that does tution were waivers up. His open corpus federal habeas granted be oner and his intelligent, knowing and manifestly *15 ob- evidence that ground on the relief voluntary. More- plainly were confessions search or unconstitutional in an tained motive over, improper no can discern we trial. at his was introduced seizure withholding authority in any of on behalf however, Here, 482, 3037. at 96 S.Ct. Id. authorities’ tape. The San Bernardino particular this because primarily no useful informa- view that contained not even claim Amendment did Fourth eminently reason- side was tion to either arrest years after Anderson’s until exist recognize that now though they able even trials, did not that he we conclude have been practice the better would full and for “opportunity from the benefit discovery. in the include it courts to it in California’s litigation” of fair II States See United he was entitled. which Peters, 1023, F.3d v. 3 rel. Bostick ex Arraignment Cir.1993) (review (7th of Fourth 1027-29 a.m. on at 3:47 was arrested because peti- not barred claim Amendment 26, ar He was not May Monday, 1980. to es- opportunity did not have tioner 1980, 29, Thursday, May until raigned unforesee- of an standing because tablish taken after was seventy-six hours some the state preventing rule procedural able County River on custody. Relying into of of reaching the merits court 44, 56, 111 McLaughlin, 500 U.S. v. side claim). de- Supreme Court The California (1991), decided 1661, 49 114 L.Ed.2d S.Ct. been, it could the claim because nied arrest, Anderson years after eleven not, We held in appeal. on but was raised his Fourth violated the State argues that 1146, F.3d 1152-53 California, 202 Park detaining him rights by Amendment (9th Cir.2000), course, such a denial prior arraignment. hours more 48 than a review the routinely entail in 1996 did the State maintains that possible of California Court Supreme confession Blundell procured his claims, on persuaded we are but federal (“May confes 28th homicides Glashien circumstances facts and these sions”) inter incriminating as the as well quality of short of review falls kind (“Flanagan Inter Flanagan Dr. view with in Stone. opportunity described arrest, litigation view”) after than 48 hours more Thus, to the claim itself. proceed we Flanagan and the May 28th confessions
1069
1280,
McLaughlin’s
Can Anderson Raise
(1994),
S.Ct.
128
1
L.Ed.2d
which
48-Hour Rule as an Issue?
it held
McLaughlin applied retroac
tively to all
pending
cases
on direct review
103,
Pugh,
125,
Gerstein
U.S.
420
yet
or not
final2 when McLaughlin was
854,
(1975),
95 S.Ct.
L.Ed.2d
Powell,
decided.
84-85,
U.S.
Supreme Court held that
the Fourth
1280;
S.Ct.
see
Griffith,
also
U.S.
requires
judicial
Amendment
a prompt
de-
(“[A]
Three the Court Rule apply decided48-Hour would to all cases that Nevada, 79, Po well v. 114 pending were on direct review or yet not 1. interpreted Circuit Ninth has this lan A judgment 2. case is 'final” il “a of convic rendered, guage McLaughlin meaning intervening as tion has been appeal availability the exhausted, holidays. petition and the time for a City weekends or See Hallstrom v. elapsed petition for certiorari 1473, or a for City, (9th certio Garden 991 F.2d 1480 finally rari Kentucky, denied.” v. 1993). Cir. Griffith 6, U.S. 321 n. S.Ct. 93 L.Ed.2d (1987). (i.e., capital case charging decision
final Id. McLaughlin was decided. when not). or 84-85, Clearly, the 1280. at to cases in holding limit its did not Court Rule, McLaughlin’s 48-Hour Under ar- delayed raised the appellant which however, “un- delay presumptively was Accordingly, we raignment issue below. Furthermore, ex- the State’s reasonable.” law allows Anderson to that the conclude delayed arraignment was planation McLaughlin claim.3 The a delayed raise collecting ev- law enforcement not dic- by the State do arguments made in order to killings about the Utah idence see, otherwise, although we shall as charge tate in the whether aid decision choice of a impact on the not they capital do have an offense does Anderson with or extraor- remedy “emergency this case. an other qualify as fact, In courts have dinary circumstance.” Violate Anderson’s Did the State 3. improper cases that it is held recent Rights? Fourth Amendment investigate delay in order to arraignment suspect’s in “additional participation above, McLaughlin As discussed (i.e., the ba- that were not crimes” crimes probable that if cause determina held arrest). v. for See United States sis hours, the within 48 tion does not occur (8th Davis, Cir.1999); 174 F.3d the burden of demonstrat government has Chicago, City 999 F.2d Willis emergency of bona fide ing existence Cir.1993). (7th But see States United extraordinary other circumstance. Cir.1997) (7th Sholola, 124 F.3d 57, 111 McLaughlin, 500 U.S. (“I (Wood, J., concurring) regard therefore case, Anderson was arrested this po- majority’s statement ... a.m., not ar May on 26 at 3:47 an may always hold individual ‘while lice morning May ap raigned until may that he investigating other crimes such, later. As 76 hours proximately committed, as have long so suffi- must furnish a valid excuse this State the indi- justify holding cient evidence has borne that delay. Id. The State custody place,’ in the vidual first as burden. Willis.”). with the holding inconsistent McLaughlin Court made out, Moreover, points Califor- as Anderson intervening or holi weekends clear require cir- special nia law does not extraordinary days qualify would not charged arraignment, cumstances be circumstance, argue so the State cannot case, and, prosecution did not delay was reasonable offense charge capital Anderson with *17 Day. May 26 Memorial ground Thus, two arraignment. until months after Instead, maintains that: the State pre- the did not rebut because the State delay purpose delay if was for the of 76 hour was un- sumption even the that the reasonable, vio- Thompson we conclude that the State obtaining the confession and evaluation, Amendment not im- lated Anderson’s Fourth Flanagan such were McLaughlin. reasons, rights under did not permissible delay render the “unreasonable”.... Remedy for Appropriate 4. What is the made to Appellant The De- confession McLaughlin Violation? Jerry Thompson pertained solely tective killings. killings, the Those in next issue we must resolve is Utah turn, remedy the is for a fail- prosecution appropriate in what making assisted the 151, 157, 1969, Lane, 288, addition, 117 138 Teague v. U.S. U.S. S.Ct. In 489 521 1060, (1989), ("Petitioner's (1997) S.Ct. L.Ed.2d 334 does 109 103 conviction L.Ed.2d 351 application 1988, 48-Hour Rule 3, not bar the the when we became on October final McLaughlin because on collateral review Supreme Virginia review the declined to Anderson's conviction became decided before affirming on Court's decision his sentence 1089, Hill, See Bell v. 190 F.3d 1091 final. review.”). direct (9th 1999); Cir. also O’Dell v. see Netherlands
1071
promptly
arraign
ure
arrestee
years
Powell,
Four
later in
the Supreme
connection with statements
him
made
Court framed
holding
the
in Harris:
“In
past
Harris,
the time that
delay
the
was reason
we held that
violation
indicated,
As
Supreme
able.
Court Fourth Amendment’s rule against war
spoken
subject,
has not
leaving
on this
it
rantless arrests in a dwelling ... generally
unresolved in Powell v. Nevada. As an
does not lead to the suppression
post-
of a
matter, however,
initial
it is well settled
arrest
*,
conviction.”
and
those
to
following
for courts
consider
testi
the
factors
material or
produce incriminating
(1)
answering
question:
pres-
the
short,
of
In
exclusion
mony as fruits.
(2)
warnings;
of Miranda
ence or absence
Miranda warn
made without
confession
proximity
the
and
temporal
the
of
arrest
regarded
necessary
to
might be
ings
confession; (3) the
of inter-
presence
the
Amendment, but it
the Fifth
effectuate
(4)
circumstances;
the
vening
purpose
fully
protect
not
sufficient
to
would
be
the official misconduct.
flagrancy
of
and the
warnings,
Miranda
the Fourth.
exclusion,
603-04,
Brown,
2254.
422
at
95 S.Ct.
U.S.
made without
of a confession
poisonous
“fruit
delineating
In
the
of the
them,
sufficiently
do
alone
deter a
not
analysis,
tree”
the Brown Court stated
Thus,
Amendment violation.
Fourth
of
also
the “voluntariness
the state-
in this case were
if
statements
even
the
requirement,” and that
ment is a threshold
under the Fifth
voluntary
to
found
be
government
the
of proving
the
has
burden
Amendment, the Fourth Amendment is
challenged
the
of the
confes-
admissibility
In order for the causal
sue remains.
604,
Id. at
Q. (By Mr. you Gonzalez to Indeed, Did they crimes. were committed if any ask [Anderson] the confes- jurisdiction. different Anderson was not or gave sions information he under arrest or under suspicion for these detectives was done in an involun- crimes when he said he wanted to discuss tary manner? fact, them. according Ames) (By A. Mr. Yes. trial Anderson’s testimony Q. And what say? he did Utah confessions were the direct product no, A. He said he volunteered the in- of a pre-existing agreement he had with formation. the people who had made successful his Q. you Did him if ask he was ever escape from the Utah State Prison. The coerced in by any manner alleged agreement speak was to up and police these officers involved in this rap” “take the for the Glashien if homicide case? he ever caught for got some other crime. A. He said he not. was Here is how explained Anderson agreement: factors, As to the four Brown analy- our
sis is as follows: Q. Anderson) (By Mr. Glazier to And you told us
First, [on direct examination] fresh set of warnings Miranda given you well, debt immediately Anderson tell before owed— the Utah confessions. He was us about you then asked that debt owed and talk, if he wanted to answered, and he you why admitted killing Glash- only “Yes.” Not did clearly ien. rights, waive his but he confirmed that he A. I escaped, When away, walked how- talking will, of his own free you it, ever want to look at from the he had a pre-existing independent reason Prison, they Utah State were look- injecting subject for into the San Ber- me, ing for the law enforcement au- investigation. nardino This satisfies the thorities were looking me. first of Brown’s four attenuation factors. And people these they hid me. And Second, it is clear that “tempo- Brown’s went through fact, a lot. They—in proximity” weighs ral factor Anderson’s house, one guess man’s I you can call The favor. confessions occurred at a time it, raided because I thought was when, as we learned almost a decade after there. arrest, already should stayed And I in the mountains Mill arraigned. been Canyon Creek days. for several And Third, this case involves a distinctive set they supplied me with what I needed of facts and circumstances that sets and took care of me. apart from the case in usual terms of And eventually then got me out of whether a causally statement is to a linked town when the heat died down. violation. distinction this: Anderson volunteered a desire to tell the deputies about the Utah crimes. He did Q. you tell you Didn’t us that were arrest, so soon after a lawful after advice you asked to were asked to take — rights, and while his detention was rap take the for the killing Glashien
plainly legal. tree from which the Utah, people in you yes, said ultimately fruit fell was a tree only you if were arrested— illegality misconduct, free of but offered A. That’s what Yes. happened. up prior time Q. You testified to that? arraignment violation. The chain of causa- tion actually started before the A. yesterday day violation of Yes. Just or the be- right to be arraigned. fore. *20 or promised this statement make know you Now, burglar as a
Q. you anything? punishment between difference murder, you? don’t and burglary (Anderson) for No. A. Yes, I do.
A.
will?
own
your
it on
done
Q. You
free
obligation,
of that
yet
And
because
Q.
Yes.
A.
were
you
you if
had told
people
in mind?
rights
having your
Q. After
you’re
that
I assume
arrested —and
uh,
that,
I
say
to
just like
Yes. I’d
A.
being
of
possibility
talking about
uh,
these statements
did, I
made
you
because
burglary
for
arrested
uh,
that
to,
up the
clear
simply
fact
did
killing anybody,
anticipate
didn’t
suspected
people
a lot
were
you?
been sus-
had
that shouldn’t
crimes
No.
A.
in-
that I have been
And
pected.
for
arrested
were
you
if
that
Q. So
that
people
it
various
formed
to
and
guy
a good
as
burglary,
they
up
cleared
be
it should
the debt
responsibility
fulfill
it.
to do with
anything
have
didn’t
to
had,
going
were
you
you
here
purpose
my main
that’s
And
a murder?
rap for
up to the
step
Utah,
crimes
these
Yes.
A.
added).
(emphases
go-
were
you
us that
Q.
you
And
told
scene
on the
Thompson arrived
After
that obli-
to
to do that
ing
fulfill
to re-
right
of his
Anderson
and advised
arrested,
you were
just
gation
if
he did
silent,
after Anderson said
main
charge was?
what the
regardless of
attorney or
to consult
want
not
that true?
Is
interview, Thomp-
during the
with him
one
A. Yes.
Anderson,
Having your
“Okay.
asked
son
ahead
to
you
go
desire
in mind do
rights
understanding that
your
But it was
Q.
was,
answer
me?” Anderson’s
and talk to
said,
you to take
want
had
“We
exchange indicates without
“Yes.” This
it?”
rap
for
steadfast
Anderson remained
doubt
had, yes.
we
agreement
was an
A. That
his
to exonerate
decision
pre-detention
his
law en-
go
ever
you didn’t
Q. But
caught.
got
he
and when
friends
if
say,
voluntarily and
“I
forcement
telling the truth about
was
he
Whether
did
you
captured,
it,”
were
until
did
course,
murder,
was
part
Glashien’s
you?
to decide.
doing that.
intention of
I had no
A. No.
May
on
previously
said
Anderson
When
No.
to talk
26, 1980,
to wait
that he wanted
gener-
going
be
Q. You weren’t
to see
in order
what
crimes
about the
ous,
you?
were
said, “Well,
had,
it’s
authorities
Utah
A. No.
for me to wait”—-not
right now
just better
until some-
to wait
going
were
Q. You
my
and decided
changed
mind
“I have
And then
you.
body caught
earlier,
conduct
talk.” As indicated
in-
those
point be the benefactor of
of an assertion
equivalent
not the
was
up in Utah?
dividuals
Utah
remain silent
right
A. Yes.
contrary, To the
crimes.
added).
(emphases
of his own decisions
control
clearly in
The de-
will.
free
alluded to
untrammeled
contemporaneously
exercising
time
occasioned
May
then,
on
obligation
lay,
this debt
the scene.
Thompson:
Thompson to arrive
of his
took
the close
statement
to Anderson’s
delay was attributable
This
any-
or has
... Have I
(Thompson)
Q.
any miscon-
desires, not to
behavior
you in order to
else threatened
one
*21
duct
part
any
on the
law
Brown,
enforcement mind when it
said
“It is entirely
officials. Anderson was the
who
one
want-
...
possible
that persons arrested illegally
wait,
deputies;
ed to
not the
it
and was his may decide to confess as an act of free will
request
delay
that caused the confes-
unaffected
initial
illegality.”
sions to occur
his extended deten- Brown,
603,
Riverside
Dictionary
Anderson did not raise until almost four-
This distinction is critical when the issue is
years
teen
after
any
his first trial
Fourth
whether an
is sufficiently
act
a matter of
Amendment delayed arraignment claim.
free will to
purged
taint,
be
primary
fact,
In
not until
appearance
his
such as the
in federal
is here.
inquiry
court did he
make
People
issue. See
Anderson’s independent
continuing
Anderson,
v.
52 Cal.3d
Cal.Rptr.
purpose,
it,
however
might
one
regard was
(1990).
decision
*22
have raised.
might
arraign-
that he
delay in
on
defenses
mental
confession
Anderson’s
of
ex-
strategic
advantage
and
an informed
took
deputies
was
grounds
The
ment
second-
gener-
will not
to
arraignment
court
the
delayed
which
decision
the
ploited
the
evidence,
03557].
that
[Er.
conclude
guess.”
and we
this
ate
the
and
detention
the
link between
causal
pur-
remedial
its
best serves
Deterrence
the exclusion-
invoke
to
required
evidence
remedy for
aas
it serves
when
pose
rule does exist.
ary
either
officers
which
wrong
constitutional
against
was
have known
should
knew or
light of
Nevertheless,
in the
conclude
we
(and society)
police
punish
To
law.
the
admission
record
the
entire
the
of
the
event on
basis
an
twenty years after
Flanagan’s
Dr.
of
by
prosecutor
the
use
at
established
clearly defined
not
rules
or
any substantial
inflict
not
testimony did
dis-
actually
the occurrence
time of
be
case
Anderson’s
damage to
injurious
by ren-
of deterrence
purpose
serves
that the doctor’s
convinced
cause we are
Leon,
at
468 U.S.
See
dering it irrational.
ver
to the
contribute
not
testimony “did
(“Indiscriminate appli-
8405,
908, 104 S.Ct.
States,
v. United
Neder
dict obtained.”
may
...
exclusionary rule
of the
cation
1827, 144
15-16,
1,
S.Ct.
U.S.
law and
disrespect for
generate]
well
(1999);
Gari
States v.
United
L.Ed.2d 35
Moreover, we
justice.”).
of
administration
Cir.1998).
(9th
Dr.
534, 539
bay, 143 F.3d
Law enforce-
2000.
year
in the
are now
Anderson’s
characterized
simply
Flanagan
of
many years
currently have
officers
ment
personality.
described
behavior
collective
under their
rule
McLaughlin
introducing
purpose
prosecution’s
The
idea
entirely that
belt,
we discount
to remove
preemptively
was
testimony
this
confessions
suppression
defect
disease or
or mental
any psychiatric
This
their education.
case will add
this
might offer.
the defense
defenses
the source
where
in a case
especially
so
offered—nor
here,
defense neither
But
solely the defen-
was
the confession
of
to offer—such
intended
for
matter
Accordingly,
offering.
gratuitous
dant’s
de
the defense’s
reason
defense.
in favor of
weighs
final factor
Brown’s
such defenses
any
to eschew
cision
State.
state
adamant
Anderson’s
from
stemmed
Wong
of
words
summary, and in the
did not want
that he
to Ames
ments
407,
488,
Sun,
at
U.S.
Thus, Dr. Flana
insanity plea.
offer
ex-
by
obtained
evidence
disputed
person
testimony
about
gan’s
violation,
unconstitutional
any
of
ploitation
defense.
way
in no
interfered
ality
from
sufficiently attenuated
by means
but
object
failure to
for his
explanation
Ames’s
manifest exer-
illegality
—Anderson’s
the second
opinions
Flanagan’s
Dr.
untouched
as to be
of free will—so
cise
atme
was,
they didn’t hurt
“I felt
trial
Man-
States
taint.
also United
any
See
was not based
my defense
trial
Cir.1983) (the
(9th
908, 911
uel, 706 F.2d
opinion
giving an
he was
anything that
after
of statements made
voluntary nature
diminished
opinions regarding
His
on....
fla-
lack of
arrest and
a questionable
or
things
insanity, those sorts
capacity,
pressure
or
misconduct
grant police
not enter into
saying did
he was
what
any taint
to attenuate
serve
confess
I was
of the defense
the theories
illegality).
previous
[SER
jury.”
present
going
Dr.
Flana
As to
interview
2426].
inter
however,
a different
we come to
gan,
testimony was
Moreover,
Flanagan’s
Dr.
re
conclusion,
anot
different
mediate
what
a reflection
merely
shadow
was not
Flanagan interview
sult.
record,
which
most of
in the
otherwise
dual
free will.
Its
of Anderson’s
product
in his
himself
from Anderson
directly
him came
elicit information
was to
purpose
and clear-headed confessions to for the default and actual prejudice
detailed
as a
separate murders. Anderson told
alleged
three
result of the
violation of federal
law,
that he was
“born or
the detectives
either
or demonstrate that failure to consid
killer;”
“always
trained to be a
and that he
er
result in
claims will
a fundamental
Anderson,
killer.”
wanted
be a
miscarriage
justice.”
Coleman v.
CaLRptr.
801 P.2d
Cal.3d
Thompson,
Flanagan’s
It did not take Dr.
testi-
(1991)
ing a
up
“went
sentence
950, 1035,
prior
22
death
Clark,
5 Cal.4th
People v.
(“We
to the California
(1993)
automatically
appeal
689,
1099
P.2d
857
Cal.Rptr.2d
Ac-
Court,
do.”
such cases
raise
as all
objection to
Supreme
required
have never
Anderson,
comments
v.
these
Caldwell
upon
cording to
based
of error
claims
quo-
that Anderson’s
(internal
citations
to believe
“misled
Mississippi”)
Bittaker,
omitted);
ultimately be
People v.
decided
would
marks
sentence
tation
630,
1103,
Cal.Rptr.
reversed
259
had
court
appeals
same
48 Cal.3d
(same).
Peo-
(1989)
But see
which
and with
sentence
P.2d
death
prior
Freeman,
sentencing
Cal.4th
ple
responsibility
the ultimate
(hold-
(1994)
P.2d 249
Cal.Rptr.2d
unpersuasive.
is
argument
This
lay.”
there
waived
claim
ing Caldwell
made the
judge
true that
While
Poggi
People
objection);
no
about, such
complains
comments
886, 753
Cal.Rptr.
Cal.3d
insufficient
establish
are
comments
(same).
we
(1988)
Accordingly,
P.2d 1082
*24
viewed
claim,
when
particularly
Caldwell
not an
is
rule
the waiver
that
conclude
trial. See
the entire
context of
the
within
re-
federal
bar
ground
state
adequate
(5th
1273,
Butler,
1286
F.2d
881
Sawyer v.
claim.
Caldwell
Anderson’s
view of
Cir.1989).
jury selec
day of
the first
On
retrial,
judge ad
the
Anderson’s
tion in
Claim
2. Caldwell
following:
the
jury and said
the
dressed
Caldivell,
held that
the Court
In
of this
previous
a
trial
has been
There
to rest
constitutionally impermissible
“it is
of
been convicted
and he has
matter
made
on a determination
a
sentence
death
matter
But
murder.
the
degree
first
led to believe
has been
who
by a sentencer
of—on
question
on the
has
be retried
determining the
for
responsibility
that the
of
in connection
questions
the technical
death
defendant’s
the
appropriateness
penalty.
the
[sic]
Caldwell, 472 U.S. at
elsewhere.”
rests
However,
added).
(emphasis
ER at 1436
recently, the
328-29, 105
More
S.Ct.
great
explain
toon
then went
the court
Caldwell
“read[s]
that
has said
Court
Supreme Court
why the California
detail
of com
types
only
certain
‘relevant
death sentence.
Anderson’s
reversed
jury as to
mislead the
ment[s]—those
case,
the first
particular
way
In this
in a
sentencing process
in the
role
its
guilty
the defendant
trial,
jury found
responsible
the
jury to feel less
the
that allows
They found
deci
murder....
sentencing
degree
the
of first
than it should
”
1,
circum-
Oklahoma,
special
allegation of
512 U.S.
true
Romano v.
sion.’
(1994)
that the
1
was
2004,
stances,
allegation
129 L.Ed.2d
and that
9, 114 S.Ct.
a
477
Wainwright,
U.S.
in the course
v.
committed
Darden
(quoting
killing
2464,
they
91 L.Ed.2d
15,
It’s what
S.Ct.
degree burglary.
n.
106
first
Thus,
(1986)).
rule,
you
a Caldwell
if
to establish
where
felony
murder
called
violation,
must
a defendant
show
of certain
in the course
somebody
kill
described
jury “improperly
burglary,
crimes,
degree
remarks
first
including
by local law.”
jury
assigned
murder.
the role
degree
first
automatically
it’s
Adams,
Dugger
circumstance
special
was also
And that
(1989); see
L.Ed.2d 435
penal-
the death
brought
play
into
which
F.2d
Vasquez, also Hendricks
ty-
Cir.1992).
(9th
phase
penalty
jury then tried
death
verdict of
they returned
claim
Here,
Caldwell
Anderson’s
to death.
sentenced
the defendant
comments
judge’s
on the
is based
time
However,
some
about that
Anderson’s
beginning of
at the
voir dire
were
felony murder
applying to
(1)
rules
phase
trial
penalty
second
Court
Supreme
And so
changed.
was re-
death sentence
prior
sent it back
retry
for directions for us to
O’Connor
“[jjurors
warned
may har-
special
circumstance issue and the
misconceptions
bor
about
the power of
penalty phase
light
issue in
or,
new state appellate courts
matter,
for that
rules. The new
require
rules
that be-
this Court to override a jury’s sentence of
fore a special
felony
circumstance
death.” Id. at
ER at 1442-43. In light of this careful Baker you, has told that the you decision and deliberate explanation of the state su- render is automatically reviewable *25 preme legal court’s reasoning, we conclude Supreme the Court. Automatically, and that the judge’s one-time use the of word I think it’s unfair I and don’t mind tell- “technical” in way no jury, misled the ing them so. much less “in a way that allows the jury to 325-26,105 at Id. S.Ct. 2633. responsible feel less than it for should the Caldwell, Unlike in here, judge’s the sentencing Romano, decision.” comments about automatic appeal did not (internal at quotation S.Ct. lead the jury “to believe that responsi- the omitted). marks bility for determining the appropriateness Anderson argues also the that trial of the defendant’s death rests elsewhere.”
judge violated Eighth his Amendment at Id. Quite to the rights when jurors: he the told contrary, judge the made it clear that the trial, So a penalty had penalty jurors must decide whether special the phase of And jury trial. the returned a and, circumstance so, is true if whether verdict indicating that the defendant Anderson imprisonment life deserved should suffer penalty. the death That example, death. For regard to the up went automatically on appeal to the circumstance, special judge the said: Court, California Supreme as all such So we’re going to have a on .trial the cases do. limited issue whether or not at the added). ER at 1474 (emphasis In making time the defendant killed elderly the argument, Anderson relies heavily woman, her, on shot and killed he whether Justice O’Connor’s concurring opinion in intended to kill her. And there are a lot Caldwell, she where said “[l]ayper- explanations, o[f] that potential theoretical sons cannot expected be explanations to appreciate other than intent to kill. explanation without instance, the For limited nature of accidental. maybe Or he appellate review, just especially in was light shooting to scare the her or some- reassuring picture thing of this sort with ‘automatic’ review no kill intent to evoked the her at sentencing court all. prose and Caldwell, cutor in this case.” 472 U.S. at jury evidence, So the hear all the will
343, 105
Furthermore,
S.Ct. 2633.
Justice
happened
detail,
what
exactly in
and will
fail-
Ames’s
deciphering
observed
Court
mind whether
up
to make
their
remarks,
judge’s
the trial
object to
ure to
beyond
satisfied
twelve
they are all
defense
that
apparent
of this
seems
the
[I]t
time
that
doubt
reasonable
for
purpose
had a tactical
herein
counsel
kill her.
intended
shooting he
disclo-
the court’s
object to
declining to
1475;
at 950.
2RT
ER
sen-
death
defendant’s
regarding
sures
it
that
explicated
court
Similarly, the
auto-
reversal
subsequent
tence
to determine
responsibility
jury’s
the
trial
course of
During
appeal.
matic
for Anderson.
penalty
appropriate
re-
frequently
counsel
argument,
to kill
he did intend
jury finds
[I]f
sentence and
prior death
ferred
makes him
shot,
then
woman
redemption’
Row
a ‘Death
presented
...
penal-
two most severe
eligible for
changed
stressing defendant’s
defense
impris-
he can be
have. Either
we
ties
and his
attitude,
character
reformed
of his
the rest
Prison
State
oned
For ex-
useful,
skills.
redeemable
many
parole
possibility
no
life with
natural
whether
defendant
asked
ample, counsel
Or he
prison.
he’ll die
Just
ever.
changed
had
‘thinking’
chamber.
gas
to death
put
be
can
he was sentenced
years since
five
we have
only
choices
are
two
Those
‘the ex-
replied that
Defendant
death.
point.
to that
getwe
once
to die
being condemned
perience
unusually,
rather
requires,
law
realize
up
grow
me
made
Ordinari-
penalty.
jury
select the
And
I matured.
And
matter.
a serious
consider
to even
told not
jury
ly
living
to life than
more
there’s
I realized
then, will be
jury,
So the
penalty....
lived. And
had
I
the life
between
a decision
make
expected to
change.’
a chance
I
maybe had
evi-
upon
based
two penalties
those
the auto-
the reference
Regarding
of the
phases
both
heard in
you’ve
dence
gener-
that ‘[a]s
it is true
appeal,
matic
is,
trial;
the circumstances
advised
not be
rule,
should
al
background information
killing and
appeal in
availability of an
regarding
himself.
the Defendant
about
cases,
information
such
death
*26
considering the
Thus,
responsi-
jury’s
2RT at 950-52.
sense of
the
may dilute
appeal in
automatic
any
about
But
comment
judge’s
fixing
penalty.’
the
bility in
trial, it is clear
defen-
knowing
the entire
that
of
juror,
the context
reasonable
de-
“improperly
death
did not
to
the remark
sentenced
that
was once
dant
jury....”
same
assigned to the
for the
being retried
the role
now
scribe[ ]
was
1211.
407,
appeal
that an
crimes,
easily
at
infer
U.S.
Dugger, 489
could
to him.
available
was
conclude
Finally, we
in the
error
conclude
We
from the
prejudice
no
suffered
Anderson
was waived
disclosures
pretrial
court’s
he himself
judge’s remarks
trial
failure
tactical
apparently
by counsel’s
row
death
jury of his
tell the
intended
it is
further conclude
object.
We
of
part
as
experiences
incarceration
was
defendant
reasonably possible
a “Death
in California
is known
what
by those disclosures.
prejudiced
This defense
defense.
redemption”
Row
Anderson,
453
a
52 Cal.3d
jury as
People
v.
the defendant
presents
(1990)
P.2d 1107
801
Cal.Rptr.
276
rehabilitated
person
a
person,
different
omitted).
reject
Accordingly, we
(citations
candidate
longer
thus
a
row and
no
death
claim.5
Caldwell
Anderson’s
Supreme
As the California
death.
for
the sen-
brief,
so infected
prior death sentence
ap-
[his]
Although
clear
his
it is not
5.
that,
toas
ren-
unfairness
tencing proceeding with
arguing
under
also is
parently Anderson
penalty
death
Romano,
imposition
violated the
jury's
judge's
the
the
comments
der
Romano,
Amend-
U.S.
process.”
of the Fourteenth
process clause
due
of due
a denial
claim,
must
Anderson
To state such
ment.
regarding
evidence
that "admission
show
giving
IV
hibited
lesser included
in-
offense
in capital
structions
cases. 447 U.S. at
Jury
Lack
Instruction on Lesser-
628-29, 100 S.Ct.
Essentially,
the
included Offenses
Alabama law was an all-or-nothing rule
third claim appeal
Anderson’s
provided juries
capital
cases
is that
district
in conclud
court erred
(1)
only two options:
find the defendant
ing
correctly
state trial court
in
guilty
capital
automatically
murder and
jury. Specifically,
structed
(2)
death,
sentence the defendant
or
argues that because he asserted
dimin
642-43,
acquit the defendant.
Id. at
ished capacity
guilty
defense
rule,
S.Ct. 2382. This
Supreme
Court
phase
first trial
state
held, provided
possibly
unreliable re-
required
jury
court was also
instruct
sults and
constitutionally
was therefore
in-
felony
on lesser-included offenses to
mur
637-38,100
firm. Id. at
S.Ct. 2382.
der, and its failure to do so
violated
trial,
At
first
there
evi-
was
Eighth Amendment as
construed
Beck
dence from his
and testimony
confessions
Alabama,
625, 637-38,
447 U.S.
by investigating officers that Anderson
(1980).
2382, 65
S.Ct.
L.Ed.2d 392
This
had consumed two half-pints of vodka the
argument
unpersuasive.
is
evening of
burglary.
See ER at 1176-
allegedly
Federal review of an
er
such,
89. As
because the state trial court
jury
roneous
instruction
collat
challenged
found that there was “evidence of possible
erally
extremely
limited. Under Brecht
capacity,”
diminished
ER
see
it
Abrahamson,
619, 637-38,
gave a
capacity
diminished
instruction to
(1993),
request burglary of Anderson convict jury the tell decision court to tion, the he ask did have jury could murder, the guilty felony may be found and the “defendant that in the the decided, on evidence based the offenses both of also either or guilty of not first-degree sentence not to phase, penalty and burglary charged” i.e.,— between Thus, instruction choice the This extreme at 2627. death. 1RT murder. in- death of offense a sentence acquittal or complete a lesser-included akin to was in Beck allowed Supreme have Court by that would in condemned struction burglary, of See innocent case. Anderson’s present to find not was murder, 98-99, 118 would 1895. which S.Ct. of guilty U.S. at but Hopkins, the death ineligible for made Anderson held Court Moreover, Hopkins, penalty. only to those applies rule the Beck that in- give court refused The trial been deemed that have offenses Ames, explaining requested struction offenses lesser-included to constitute state “I know not warranted 90-91, it was that at Id. crime. charged case in this where situation factual noof explained The Court 1895. S.Ct. that the defendant could find jury] [the Hop- Beck between distinction crucial murder.” of guilty but burglary of innocent distinction, a State’s between “is kins Ly- Anderson’s confessions Given offenses instructions prohibiting several state- murder, included which man included, recognizes lesser law state exactly knew indicating that ments of- to instruct on refusing a State’s ques- night on the doing he was what recognize as not does state law fenses that reviewed tion, having independently 7,n. 118 S.Ct. at 99 Id. included.” lesser disagree with record, cannot we trial unconstitutional, while former is 1895. point. on this conclusion trial court’s is not. Id. latter argu- persuasive such, has State As Nebras- Court held Hopkins, apply not does that Beck ment give required to constitutionally not ka was case. Anderson’s charge non-capital on the instruction an Beck, the time Second, unlike the defendant murder when second-degree trial, no California there felo- count of capital charged with the prohibited kind that or law statute law, because, Nebraska under ny murder offenses included on lesser instructions a lesser not murder was second-degree non-capital ones. cases, capital Id. at felony-murder. offense included Reeves, U.S. Hopkins To quote Specifically, 96-97, 1895. 118 S.Ct. 141 L.Ed.2d law, sec- under Nebraska noted Court case, Cali (1998), Court Supreme a recent in- a lesser was not murder ond-degree barrier an artificial “erected has not fornia felony murder because cluded offense choice be to a juries its restriet[s] intent requires murder second-degree capital offense for a conviction tween felony death, murder whereas to cause 96, 118 S.Ct. Id. at acquittal.” 95-96, 1895. As Id. not. does *28 Beck, jury if the to Third, contrast in a con- upheld result, Court Supreme the a felony burglary and of convicted (and subse- the murder felony viction for auto- would not murder, a death sentence by a imposed that was penalty death quent at law the Alabama In matically ensue. though even panel) three-judge separate au- ultimate Beck, judge had the in issue no given phase was guilt jury at the the not jury the was sentencing, yet on thority of a guilty the defendant to find option 15, 100 S.Ct. at 639 n. this. told Id. crime. non-capital Instead, jury was instructed the 2382. time At here. the is relevant Hopkins if it sentence the death impose it must trial, the to similar first Anderson’s thus of and was guilty the defendant found
1083 (1991) 475, (“[T]he Hopkins, at in Califor- 116 Nebraska law issue L.Ed.2d 385 fact prosecution not the require nia law did to that the allegedly instruction was incorrect that Anderson intended to kill Mrs. prove under state law is not a basis for habeas Lyman felony an element of murder. relief.”). Here, Hopkins, under the state Anderson, 61, at 210 See B8 Cal.3d Cal. court’s reliance on Avalos did not violate 1149; 777, Rptr. People P.2d see also 694 Eighth the Amendment under or any Beck 701, Avalos, 718, 159 Cal.App.3d v. 98 Cal. and, thus, other provision constitutional (1979). Rptr. only required 736 The law Anderson’s conviction cannot be reversed specific to proof of the intent commit the a petition on federal a for writ of habeas underlying felony. Id. Id.; Ylst, corpus. see also v. Jackson 921 (9th
Moreover,
Cir.1990).
882,
do
appear
while there
not
to F.2d
885
any
at
be
California eases
existence
the
Finally, assuming arguendo explicitly stating
time of
trial
Anderson’s
the state trial court
erred
not instruct
that there were no
offenses
lesser-included
ing on a lesser-included offense such as
murder, in
felony
deciding
give
not to
manslaughter, Anderson’s conviction must
instruction,
trial
such
court relied
stand
did
error
not have “sub
Avalos,
2629,
see 1RT at
on
which held
injurious
stantial and
effect or influence in
prosecution
solely
that where the
relies
on
Brecht,
determining
jury’s
verdict.”
murder,
felony
law
California
not re-
does
637,
1084 (1984), all ineffec- starting point is the for punishing offenders sovereign interest sets analysis. Strickland attempts to honor con- tive assistance good-faith and its any petitioner that the ensuring two-part while test that rights, stitutional forth corpus is an remedy of habeas to succeed on ineffective extraordinary must meet society First, has griev- to those whom must available claim. Anderson assistance Coleman, wronged.” Calderon ously attorneys rendered deficient that his show 500, 142 141, 145-46, 119 687, 525 S.Ct. U.S. 2052. 104 S.Ct. Id. performance. (internal (1998) quotations 521 L.Ed.2d Second, must that such show omitted). minimal With evi- and citations preju- performance resulted deficient record, capacity in the diminished dence of the two-part Id. This test is “bench- dice. that Anderson was it cannot be said claim: for ineffective assistance mark” by trial court’s “grievously wronged” the conduct so undermined “whether counsel’s jury on lesser-in- to instruct failure functioning of the adversarial proper during cluded homicide offenses cannot be relied trial process trial. Anderson’s first just Id. at having produced result.” 686, to ei- 2052. Failure show S.Ct. V performance prejudice ther deficient of Counsel Assistance of claim defeat Anderson’s sufficient 697, assistance. Id. at 104 S.Ct. ineffective the victim claim that Thus, the court not discuss 2052. need of counsel viola- of ineffective assistance if Anderson of test components both rights tion his Sixth Amendment breaks of First, fails on either. he contends parts. down into three provided Ames deficient assistance performance, To show deficient except with him failing personally meet that, consid- Anderson must demonstrate Second, his trial. court first circumstances, all his attor- ering of inappropri- Anderson asserts Ames objective neys’ performance “fell below closing guilt argu- in his ately conceded standard of reasonableness” measured his ment when he asked the to convict 688, Id. at prevailing professional norms. murder, straight degree client first words, 2052. In other 104 S.Ct. Third, felony Anderson at- murder. prove attorneys made errors must his against Ames’s defense death tacks functioning were so serious that “not penalty during penalty phase second guaranteed as the ‘counsel’ defendant trial, inves- claiming inter alia Ames’s Id. at by the Sixth Amendment.” tigation fa- presentation potentially 2052. S.Ct. seriously evidence both vorable were prejudice component of flawed. er “requires showing that counsel’s test deprive 1. Standard of Review were as to rors so serious trial, of a fair a trial whose defendant Findings of fact relevant a de precisely, is reliable.” Id. result More corpus nial are of habeas reviewed prejudice Anderson must demon show Calderon, 59 clear error. Bonin v. F.3d probabil that there is a strate “reasonable (9th Cir.1995). A claim ineffec that, unprofessional ity but for counsel’s ques tive is a mixed assistance counsel errors, proceeding result of the would novo. tion of law and fact reviewed de See Id. have been different.” Alvarez-Tautimez, 160 United States v. ais (9th Cir.1998). probability 2052. This “reasonable F.3d confi probability sufficient undermine Washington Strickland Put in the dence in the outcome.” Id. Framework challenge context of Anderson’s sentence, court must decide death Washington, Strickland v. whether, totality considering U.S. L.Ed.2d 674 *30 evidence, probability a reasonable choices made after than complete “there is less errors, that, ... investigation absent the sentencer precisely are reasonable have concluded that the balance of would to the extent profes- reasonable aggravating mitigating and circumstances judgments support sional the limita- at not warrant death.” Id. did In investigation. tions other 2052. S.Ct. words, duty counsel has a to make investigations reasonable toor make a provided The Strickland Court decision partic- reasonable that makes significant guidance proper on the manner investigations unnecessary. ular re conducting two-part analysis case, any particular ineffectiveness a quired by an ineffective assistance claim. investigate decision must be di- analy deficiency The court noted that the rectly assessed for reasonableness required reviewing “high sis court to be circumstances, all applying a ly deferential” to counsel’s efforts on be heavy measure of deference to coun- petitioner, strongly half of the and warned judgments. sel’s against the attraction of attempt “second-guess” the provided. assistance The reasonableness of counsel’s ac- at Id. 2052. The Court S.Ct. may be substantially tions determined or attorney noted that a “fair assessment of by influenced own defendant’s state- requires every be performance effort ments or actions. Counsel’s actions are made to distorting eliminate effects based, usually quite properly, on in- hindsight, to reconstruct circumstances strategic formed choices made conduct, challenged of counsel’s and to defendant and on supplied information per evaluate conduct counsel’s example, the defendant.... For Thus, spective at the time.” Id. we must when the facts that support certain coun indulge “strong presumption” that potential line of generally defense are range efforts fell the “wide sel’s within known to counsel of what the assistance,” professional reasonable said, has defendant the need for further presump Anderson must “overcome the investigation may considerably be dimin- that, circumstances, under tion ished or eliminated And altogether. ‘might challenged action be considered given when a has counsel defendant rea- ” trial strategy.’ Ultimately, sound Id. pursuing son to believe that certain in- Court indicated that the Sixth Strickland vestigations would be fruitless even right Amendment’s to counsel con harmful, pursue counsel’s failure cerned with the “fundamental fairness” investigations not later may those be being proceeding challenged, i.e. challenged unreasonable. whether the proceeding result 690-91,104 Id. S.Ct. 2052. “unreliable because of a breakdown in the system process adversarial that our counts Attorney-Client 3. Failure of Relation- 696, 104 produce just toon results.” Id. at ship contends Ames’s except him failure to meet with court
Finally, because the issues of inadequate trial during the first led to duty “strategic choices” counsel’s consultation that the entire attor infected investigate likely play will a significant ney-client in analysis relationship prevented role of Anderson’s court’s claim, decision-making concerning pleas, formed ineffective assistance we find it use defenses, enlightening pas strategies, phase ful to invoke in full an and penalty sage from presentations. Strickland: court found district personally “did not meet with Ames
[Strategic choices made after thor- jail guilt phase Anderson in before the ough investigation of law and facts found, trial.” ER 3519. The court also plausible options relevant are virtu- however, ally strategic da- unchallengeable; that Ames had communicated *31 make relatively elastic standards land’s and had dis- at trial Anderson ily with formula correct no one investiga- that there is his clear* case with Anderson’s cussed Amend- of whom in all Sixth experts, health assistance for effective tor and mental direction. at Ames’s Anderson interviewed ment terms. that no evidence found The court
Id.
court’s
district
from the
The evidence
with
meet
personally
to
Ames’s failure
supports the con-
hearing also
evidentiary
itself,
trial, by
capital
his
Anderson before
rep-
deficiently
did not
Ames
clusion that
trial, and thus
of
the outcome
affected
through
the first trial
at
Anderson
resent
prevail
could not
Anderson
that
concluded
interviews
delegating
practice
his
claim based
ineffective assistance
on his
in
Anderson
meeting
with
others and
court
The district
Id.
this
upon
argument.
“whenever
testified that
court. Ames
attorney
said,
advisable
may
“It
be
my
reason
for whatever
important
became
her client
his or
meet with
personally
to”
talk
go out and
would
investigator
the facts of
trial to discuss
capital
a
before
that he himself
jail, and
at the
Anderson
defenses,
develop
and to
case, possible
jail.
Anderson
visited
“sometimes”
However, there
the client.
rapport
a
with
he “sat
Ames testified
at 2262.
SER
so, by
to do
failure
Ames’
no evidence
is
reviewed all
Mr. Anderson
down with
tri-
itself,
outcome
affected the
regarding his
to me
known
of the facts
03519].
[ER
al....”
2271-72,
his fami-
case,”
discussed
at
SER
cor-
analysis was
court’s
The district
id.,
him,
and discussed
history with
ly
Strickland,
argu-
Under
rect.
him,
with
and Glashien homicides
Blundell
he cannot
ultimately fails because
ment
short,
review of Ames’s
at 2319.
a
SER
Although
prejudice.
demonstrate
hearing
evidentiary
testimony at
fail-
alleged
that Ames’s
implies
Anderson
not fail
did
makes
Ames
clear
influenced
might have
regard
in this
ings
any
at
Anderson
case with
discuss the
the Blundell
regarding
discussions
See, e.g., SER
representation.
in the
point
whether
homicides and
and Glashien
2319, 2333, 2339,
2262, 2271-72,
at
friends, he does little
family and
interview
2440, 2453, 2545-48,
2351-53,
2617-
boilerplate
generalized
present
than
more
180,191-92, 200.
19;
SER at
attorney-client rela-
Sealed
claims of harm
rep-
deficient
allegedly
this
tionship from
district court’s
challenges the
example,
For
resentation.
the evi
testimony at
Ames’s
reliance on
“impeded
that Ames’s failure
states
erroneous,
clearly
ar
hearing
dentiary
and Glashien
investigation
[Blundell
testimony is rife with
guing mitiga-
a
developing
case
homicides]
internally inconsistent
both
statements
Yet, Anderson
Blue Br. at 53.
tion.”
independent
docu
and inconsistent
in which
way
identify any specific
fails to
entirety of
reviewing
ments. After
have dif-
or defense would
his decisions
evidentiary
at the
hear
testimony
Ames’s
with him
personally
met
had Ames
fered
suggest
nothing to
ing,
is
there
in court.
instead of
jail prior
to trial
legit
susceptible to a
credibility is
Ames’s
expert,
Although Anderson’s Strickland
testimony was
Where his
imate attack.
Levin,
regard-
testified to his belief
Barry
uncertain, Ames re
inconsistent and/or
meaningful
a
necessary for
ing what
is
memory perhaps
a lack of
peatedly cited
—
relationship and
bene-
attorney-client
questions focus
understandably
to—due
attorney-client rela-
meaningful
a
fits of
actions,
thoughts,
specific
ing
a demonstra-
tionship,
requiring
without
and six
occurring
twelve
events
between
effect
prejudicial
specific
tion
some
See,
e.g., SER
years earlier.
teen
trial,
ruling in Anderson’s favor
2448A;
2387, 2445,
Sealed
2263, 2382,
an attor-
equate
holding
would
witnesses
at 199. Several
SER
jail
a client
ney’s failure to meet with
suffered, not unex
hearings
evidentiary
prejudicial. Such
per
se
prior to trial
shortcomings
similar
sense,
pectedly,
little
as Strick-
holding would make
memory as to at least part of their testi
Prior to his closing argument, Ames
See,
mony.
(Hall),
e.g., ER at 2759-60
for a jury
asked
instruction which would
3043, 3046,
(Harvey).
3048-49
have read: “The
may
defendant
be found
*32
guilty or
guilty
not
of either or both of the
4.
Closing
Ames’s
Argument —First
charged.”
1278-81;
offenses
ER at
1RT
Trial, Guilt Phase
However,
at 2629.
in recognition of the
argument
Anderson’s second
that
prosecution’s sole
felony
reliance on a
mur-
Ames was ineffective focuses on Ames’s
theory
der
Lyman homicide,
the
performance during
closing
argument
rejected
state trial court
this instruction.
guilt
of the first
phase.
trial’s
Anderson The
recognized
court
that Ames’s desired
alleges that
inexplicably
Ames
conceded instructional
language would have meant
guilt
jury
and asked the
to find him guilty
jury
that the
could find
guilty
Anderson
of
degree
of first
murder.
points
Anderson
murder but not
burglary.
ER at 1280.
request,
out that such a
light
of the jury
Ames explained why he sought
partic-
this
trial,
given
instructions
at the first
was the
ular instruction:
equivalent
requesting
jury
that the
find
I could not ...
in good conscience ...
eligible
to
pen
receive
death
attempt to
any credibility
with this
alty. The district court concluded that
jury in the penalty phase
argue
to
closing argument
Ames’s
“was not an un
this jury based upon the evidence that
strategic
given
op
reasonable
choice
we have with respect to diminished ca-
available,” primarily
tions
because of the
pacity to find him
guilty
not
of both
“Herculean task” that Ames encountered
counts.
I could have
guilt phase
credibility by
at the
ask-
Anderson’s first trial.
ing
jury
ER at
if they
3524-25.
find there is dimin-
capacity
ished
that
extent
a—’that
argues
that Ames’s conduct
the specific intent to commit burglary
during closing argument of the first trial’s
present,
was not
but to find him guilty
guilt phase
presumed prejudicial
should be
murder
degree;
first
I would
Cronic,
under United States v.
not
lose
credibility with that argu-
(1984)
fered argument reason for the complete acquittal. Furthermore, set forth. Ames did not reasonably Ames a lack of that it concede reasonable doubt concluded on all issues, factual as the following Ly- discussion obvious Anderson shot and killed will demonstrate. that, man. He also knew with a diminish- Swanson, 943 F.2d See sistance. burglary, he would defense capacity ed (ineffective de where assistance acquit on both 1076-78 asking
be felony counsel stated degree guilty and pled and first burglary fendant charge of convicted “overwhelming” not be could murder. Anderson that evidence without a felony jurors’ murder degree going of first “not to insult he was charge. How- burglary on the Sprag conviction see also Francis intelligence”); understandably wanted to ever, (11th Ames n. 7& F.2d 1193-95 gins, 720 penalty of the death possibility avoid the Cir.1983) holding in case (pre-Strickland these factors all of With for Anderson. where, client’s despite assistance effective combined, strategic calcula- Ames made crime, counsel participation denial of *33 1) burglary on the would defend tion: he did, the evidence he “I think stated 2) and, grounds; capacity diminished he went up, think put has I that the State jury that the the unlikelihood recognizing the I think he committed in the house on the homicide acquit to willing be would Here, how probably”). murder crime of wanting preserve to time at the same a full admis ever, provided Anderson had pen- the jury for credibility with the some homicide, and committing the to sion a to be appeared fore- alty which phase, closing strategic a prefaced Ames’s words conclusion, jury ask the to he would gone Swanson, 943 F.2d See presentation. charges, murder degree convict on first (“We cases some recognize that 1075-76 felony murder. grounds on but not advantageous attorney may find it a trial jury effect, was nullifi- sought Ames what certain interests to concede to his client’s murder, cation; for convict Anderson to of one of guilt offense or his of an elements the bounds the outside of but to do so charges.”). several instructions, thereby saving Anderson jury felony murder Next, discussed the Ames penalty. Had of the death possibility asked, of the death meaning his client terms jury what Ames rule and its done pun- capital for ineligible heen He noted would have ER at 1284-86. penalty. rule, ishment. it felony that severity of the murder killings for all commit- of harsh” was “kind closing argument began his Ames automatically be- felony to during a ted discussing the facts case candidly ER He also at 1285. come murders. jury, jury. He told the with the “just as harsh” it would be admitted that you to apparent almost become [i]t must away get to admitted killer to allow an not a classic immediately that it was intent who killed of a lack of person killing it?” with “who done May 26 on about Lyman felony: underlying Elizabeth on an it few witnesses you heard the first after impaired mentally person Even if a you con- apparent who—whose form the where he could not point I that. So am responsible for duct was I burglary, to commit specific intent say you and before going not to stand “But saying, you I hear all think could do my didn’t these client on killing? pass We’ll about what fairly you It obvious things. must be it, want we sure burglary part of admissions on his coupled with own murder in him of murder and to convict and the audio of the film tape the video mean, told us he I he degree.” the first his involvement he admitted tape, that saw it on Lyman. You killed Elizabeth killing of Elizabeth respect the screen. talk about Lyman. Rather than ER at 1286. facts, merely be wast- I think that would to the jury: Ames then said time in this courtroom. ing all of our you, like to to be able to ask I would like face, 2651; their ER at 1284. On 1RT at state of the you tell that the able be very similar conces- appear these words say me to law, would allow his Honor this court has guilt in cases where sions of you could re- is such that the law ineffective provided as- counsel concluded if him you guilty burgla- turn find ineffective claim assistance and the “strong ry guilty find him of murder presumption” that Ames’s efforts fell with- I degree. first would like to be able to in the range “wide profes- reasonable argument you. kind of make assistance,” Strickland, sional see we that, ER conclude at 1287. Ames informed closing argument Ames’s murder, was a degree “strategic unlike standard first first choice” that survives degree felony opened murder under door for Strickland. possible Again, death sentence. Id. he In hindsight, very it is easy to criticize acknowledged the likelihood that “[t]here Ames’s closing argument Yet, risky. question your is no Stephen mind as to is not lost, whether Ames won or it is how Wayne Anderson’s conduct May played game that counts. The rules guilty 1980. Whether he is or innocent game of Ames’s came with an incredible depends upon the law of capac- diminished prosecution’s slant favor. Anderson ity.” ER at 1287A. had admitted everything. Ames made discussing After the evidence of dimin- reasonable decision that only hope case, capacity ished in the Ames closed a defense centered on diminished capacity. *34 with attempt jury another nullification: He also made a reasonable assessment
Remember we talked about the harsh- jury that the would be very unlikely to let felony ness of the murder rule where Anderson off of the hook completely. causes a death and person someone predicted Ames that there was bound to be guilty is degree, murder in first the penalty phase a of some sort in Anderson’s notwithstanding that the causation was case. accidental; law, that is the and the re- hoped Ames penalty phase side of the verse coin is the harshness to would not involve the death penalty. Un- family the and Ly- friends of Elizabeth given case, der the instructions in the how- person man if the did not have spe- the ever, possible. this was not If the jury cific intent burglary, to commit a there found guilty by following the law culpability is no for killing the of Eliza- them, it presented as was to the death Lyman. beth penalty would be involved in a penalty earlier, Like I told you I would like to Thus, in phase. to pros- order avoid the ask to you Stephen convict Anderson of of the pect penalty death under the court’s degree. murder the first That is one to jury, instructions the Ames would have possible verdicts in this case. If argue complete been forced to for a acquit- you that, the law allows me to ask to do argument, decided, tal. Such an Ames I asking you am him convict of mur- would hurt his when it came cause time for der in the degree first prosecu- [the 1281; penalty phase. the ER at 1RT at is, but not tor] on the of the felony basis because, see, you murder rule I would agree with that With verdict I the amount facing and would also of solid evidence applaud Anderson, that verdict it would Ames’s chosen diminished ca- not me in a put position at some jury later and pacity nullification argument time to ask you the twelve of spare demonstrably not than an argument worse the Stephen life of Anderson. centered on capacity diminished and com- Sullivan, plete acquittal. Capps But ER at Again, 1288B-1299. at this time cf. (10th Cir.1990) (“[W]hen 921 F.2d already Ames knew that the trial court a defendant takes the stand in his rejected had own requested jury his instruc- Thus, tion. and he behalf admits all of the knew that the law did elements of not crime, jury] that,” exactly “allow[ him] to ask [the to do accord with the i.e. degree convict first court’s jury, surely murder on a instructions it is non-felony Nevertheless, murder inadequate legal representation basis. hope given “highly deferential” review on jury an- ignore will in- court’s a rifle threaten lives used he sympathy, rath- acquit and
structions
officers.
peace
of two
entrapment
raise an
er than
defense
evidence”)
support in
some
that has
19)
violence contin-
wanton
Francis,
added);
F.2d
(emphasis
incarcerated
ued even after he
defendant,
(“Where
by his
capital
a
evi-
burglary as
Farmington
for
plea,
well as his
seeks
testimony as
aggra-
by his conviction
denced
counsel, though faced
guilty,
not
verdict of
knife on a fel-
assault with
vated
client,
against his
strong
evidence
prisoner.
low
merely
guilt
the issue
may
concede
20)
by his conviction for
Undaunted
presenta-
hypocritical
to avoid somewhat
then
stabbing
prisoner,
one
and
sentencing phase
during the
tion
Blundell, to
prisoner,
another
knifed
credibility
before
thereby maintain
24,1977.
August
death
added).
simply
Ames
(emphasis
jury.”)
21)
a successful
then effectuated
He
inter-
to his client’s
“advantageous
found
from Utah State
walk-away escape
several
...
one of
guilt of
to concede
ests
Prison,
shortly thereafter
shot
Swanson,
1075-
F.2d at
charges,” see
Timothy Glashien for
killed
under one
attempted to do so
risky strategies.
similarly
$1,000.
two
that, “I
22)
the detectives
Anderson told
closing argument
Ames’s
Even if
a killer.
to be
was born
trained
how
performance,
deficient
demonstrates
a killer.”
always
I
wanted to be
ever,
nevertheless
we
conclude
component
prejudice
Anderson flunks
opening argument
In his
test.
assistance
ineffective
trial,
evidentiary phase of
after the
*35
demonstrate that
simply cannot
up
way:
this
prosecutor summed
probability”
a “reasonable
there was
you
when
consider
remember that
So
trial
have been
would
the result
he’s
and what
testified
he’s done
what
not been
argument
this
had
different
to.
Strickland,
made. See
U.S.
is a socio-
particular
This
individual
ar
Ames’s alternative
Let me a little bit humanize him. about they weighing process deny and some the would explain away much of the things that I think you.... prosecutor’s case. say, Needless to an examination of problem attorneys Anderson’s faced transcript entire of both aspects of with (1) this defense was most unusual: Anderson’s second trial indicates their client would not go fully along with it State’s very case was powerful. Neverthe unless he present could the most compel- less, record reveals also that ling part of init a closed and sealed ses- attorneys, two in league with sion presence without the of the media or penalty their death expert Dr. Linda (2) public, not agree did to it Meza, crafted —with what had until penalty phase after the had started. coherent, emotional,
work—a passionate, Up moment, until that he had instructed strong case of their own. Ames not to refer to the sealed incident. genesis defense, of Anderson’s it At that juncture, crucial attorneys had out, turns began long before his second to convince the trial judge to close the trial, as revealed post-trial Dr. Meza’s courtroom at various times the tri- jurors letter to the requesting access to al. This difficult task fending included off them. This letter jurors was read to the attorneys for the media who contested the court open Ames’ co-counsel Ms. Moreover, closure order. it leaves this Harvey. Bonnie It contains the following court awith difficult task because we are information that on the reflects defense’s not able to refer to the substance of preparation, strategy, presentation: Anderson’s case presented at request his I assisted Don Ames selec- in closed session to explain our conclusion process tion in Stephen’s first trial. Af- attorneys for him rendered effec- ter the trial I ended conducted com- *36 tive as required by assistance the Sixth prehensive study of the you’re decisions Amendment. making, which discovery included the event, any In special circumstances what jury major considered to be and penalty then the phase defense boiled gaps questions in unanswered Ste- down to this: phen’s first trial. A. The shooting of Lyman Elizabeth Stephen’s first trial —the link in Ste- was an accident. Anderson had in-
phen’s first trial was the absence cased her deed house for three days Stephen’s participation in his own be- before the burglary, but at the time half. entered, he he believed no one was I jury learned from that that their home. The shot discharged he was was experience agonizing, yet they out of surprise, fired and he did not felt no alternative to death —and intend kill yet her. He they was felt no shocked alternative felt— death because when he never came discovered what he had Stephen for- Moreover, ward. done. he did not callous- ly sit down for after dinner This revelation jury from first sheds shooting. allegation, About this light explains on and much of the defense’s police telling were not the truth. trial, strategy ultimate in the second which B. was build As to the burglary their Farmington case around their client’s personal testimony, and to cast his lying officers behav- were when culpable ior in a less light. They would said he pointed a rifle at them. track wrong as got onto how rifle, lying it was a but did have He when teenager. It started young a they surprised when the floor clerk, with, mother, false- was charged court never was him. He convicted, of, accused, impris- the rifle pointing ly nor convicted officers, school only of from her at the for embezzlement oned event, no violence suf- after burglary. was released court. She in the incident —on was involved and after the attack fering a heart agreed. the officers even point, that she was authorities discovered out, Blundell, thief, it in he did it turned kill The He did innocent. C. ag- Blundell’s against she judge for whom self-defense was Moreover, he was gression. never recov- His mother worked. this nor convicted charged with this the trauma of false ered However, we are crime. alleged conviction, died soon there- and she this the essence of discuss unable to testified cancer. Anderson after of violating without defense part of the by schoolmates that he was branded the record. Suf- to seal the order him who taunted this event over evidence say, we find the it to fice derogatory names with all sorts of well-pre- to have been regard Bird,” “Tweety and “Son of as such forcefully skillfully and pared and testified also that Bird.” Jail He jury by Bonnie to the Ms. presented cataclysmic episode this was a mitiga- Harvey. This evidence and of view of the world altered his why explained well tion could system, and thereaf- justice weeks almost three took wrong crowd. he ran with ter prosecution verdict. reach a refute this did not prosecution basic facts dispute the did not testimony testimony, compelling believed, evidence, and if this sealed mother as an presented his sealed very compelling. The it is extremely sympathetic blame- by the de- also used evidence less victim. jury why explain fense to presented F.Finally, defense not tell the officers did changed by his Anderson as a man Blundell truth about the the whole put row. To years on death five incident. context, they this transformation Glashien, Timothy not kill He did D. Eshelman, Byron called to the stand group part although he years ex- chaplain prison murder. for Glashien’s responsible prisons such perience working people killers were the The actual (3 Quentin years) and San Alcatraz him helped him who harbored (20 years). experience includ- This *37 escape walk-away his effectuate Quen- an for San being ed evaluator He con- Prison. State from Utah Commit- Prisoner Evaluation tin’s the Glashien homicide fessed to Eshelman testified Chaplain tee. in killers heat off the real take the “lifers” to the to the value of as to them. of his debt repayment that he believed system and prison who However, tell one he would no promise much Anderson have sense of out of a were killers capacity. in that “changed man” made this loyalty. No doubt silence this strategy The defense bolstered verify anyone to for difficult testimony and Anderson’s own with Also, evidence the sealed story. poetry and prose the extensive walk-away es- to cast his was used prison. We note written in a favor- had more cape prison apparently is light. here Anderson understandable able and IQ of with an intelligent man this, to all of prelude E. As a a writ- talents as and he has obvious great detail to explained Chaplain Stephen er. Eshelman testified Anderson has urged me not to “Stephen has a lot of talents witnesses, call those to call his that he shared with me that have brother, not to call his father as wit- grown past experience out of his nesses penalty phase. For rea- right many that would fit into of the sons known to him counsel, and to his great needs we have in prison [Tr. counsel, to—or to his I have acceded to ... expressed and he 4558] a form Mr. Anderson’s desires respect with insight feelings that I felt those two witnesses. There are other quite were remarkable. had a He witnesses that possibly could have been sense of contrition and penitence instance, called. For Mr. Anderson fa- feeling [a]nd of remorse that is children, thered two mothers, minor really quite rare and important.” again, once known to per- the defense [Tr. 4559]. testi- himself sonally. I have talked to them in Salt experience fied that “the being City, Lake My Utah. investigators who condemned to die made me grow up investigated the case have reports made and realize that it was a serious respect with to those witnesses. We matter. And I matured. And I have, consulting after with Mr. realized there’s more to life than Anderson, chosen not to peo- call those living the life that I had lived. And ple as in the penalty witnesses phase maybe I had a chance change.” request of the defendant. So if the [Tr. 4665]. record has silent point been to this with In choosing this defense and this strate- respect to may witnesses that we have gy, Mr. Ames and his defense team ex- called, I would like the record to reflect plored the usual all defenses murder didn’t, there is no reason we—we cases to the penalty. death In addi- I don’t feel compulsion the need or Meza, tion to Dr. he consulted with and to disclose the reasons on the record many used medical and mental health ex- with the exception were all at However, perts. Ames’s strategy defense request of the defendant in this mat- was hampered by his client’s own restric- ter, Anderson; Stephen IQ, by whose tions as to what he would allow on his own way, doctor, as testified to behalf. ground as well rules over 130 and who I throughout as the felt expert’s problematic medical this opin- clearly ions case cooperate circumscribed the has been able As defense. trial, explained during Ames the first counsel and has listened to me and in-— Honor, I Your at this I turn have listened time would to his like de- the record to reflect I sires. have trial, throughout this both guilt [Tr. 2547]. Ames testified at the phase and penalty now the phase, I have district evidentiary hearing court’s that his client, my consulted with Stephen client’s restrictions in place remained Anderson, and he has participated Moreover, the second trial. we have ex many of the decisions that I have made. amined the evidence Ames and his new respect
With penalty phase, I team learned investigative from their trips calling discussed the of certain wit- to New Mexico and to Utah and found nesses on his behalf for phase *38 nothing that would given assist defense trial. And particularly his rela- closest prosecution’s failure to contest tives, is, that his father and his brother. testimony Anderson’s about his childhood. The investigated defense has and has There is no requirement constitutional to had investigators some talk both with testimony goes corroborate that unchal the father and the brother in the state of lenged. New My reports Mexico. client with respect far -my client has As as a reports with defense based on diminished to— respect interviews, to those my client capacity by alcohol, caused ingestion of other child, he suffered trial, and that as a first tried a defense
Ames such grow- trauma while supporting psychological a lack of related of it failed because Indeed, pointing the evidence ing up. evidence. very was capacity a lack of diminished as argument this problem with first made Ames Accordingly, powerful. that court is by the district recognized trial to the second before
tactical decision it from his true, kept Anderson even it is if In- 2419]. approach. [Tr. this abandon he instead as attorneys, telling them trial experts to stead, two medical he called father was “a trial that his at the testified convince try unsuccessfully—to — man,” gone who was a a “fair” man good reflex Lyman was a shooting of that the said Anderson of his work. lot because action, i.e., not intentional. his right all with along got also that expert primary Ames’ note that We this The second problem mother. to be supposed regard originally this undercuts the it evidence line of However, amade Dr. Forbes. picture sympathetic and very respectable made to her damaging statement mother by Ames of Anderson’s painted witness drop her from the decide to Ames was the venera- jurors, To the she Goldie. in the Dr. Forbes that told list. Anderson mother, imprisoned be- wronged and ble and crushed caught a bird past, he had and the de- judge; a crooked cause of her told in his hands. He to death bird terribly unjust claim was this fense’s how “he realized that from incident this mitigates Anderson’s episode explains living being.” [Tr. kill it a easy was road. The turn in the youthful crooked substi- can fault Ames for No one 2604]. reality says that team now new defense Thompson and tuting other doctors—Drs. Anderson, wrongful even before her Goldie Dr. Forbes. Beaber —for disturbed, conviction, mentally unable coun Anderson’s new appeal, On suicidal, mean, abusive, function, homi- credibility at on Ames’ sel focuses first reign cidal, responsible for jointly alleging evidentiary hearing, habeas judgment, In our in her household. terror inconsistent, full of testimony was Ames’ pre- Ames’ by was better served contradictions, self-serving. Counsel sympathetic per- as a Goldie sentation strategic and claim of argue Ames’ son, monster. The an out-of-control not not trial decisions is bases for his tactical wrongful and a of a pictures two monster this problem with worthy of belief. together be woven person might convicted rejected by district that was claim is tapestry, but on other coherent one court, Ames’ admit credited who counsel credits hand, argue one might one —if “deficien alleged his stated reasons Anderson was better new evidence—that court, grant we appellate cies.” As an home. in the his mother not off with credibility to such considerable deference event, all clear that this it is not at they are by a court. Unless findings trial Anderson bet- could have helped evidence erroneous, as we we leave them clearly by Ames and the defense chosen ter than accordingly. the law apply find them and Harvey. Here, are well findings court’s the district certainly are record and supported by the found, “Despite court be- As the district clearly erroneous. several times various ing interviewed team, Anderson of the defense members Next, his fault counsel Ames relating disclose information did not investigation insufficient team for an abuse and emotional physical respect background with withholding of infor- child.... Given mitigating evidence. possible additional father, Anderson, and his his mation body refer us Appellate counsel brother, Ames defi- cannot find the Court evidentiary in the developed information the abuse is- investigation cient effect that Anderson’s hearing to the *39 can we. 02546] Neither severely [ER sue.” him mother and mistreated father Appellate counsel prosecution also fault Ames would position be in a to alibi, for developing not or an I-didn’t- disprove allegation, leaving Anderson defense, kill-him respect with to killing high us, dry. To Anderson’s defense of Blundell. New claim counsel that com to the Glashien just confession looks petent trial counsel would developed have good not better —with no details. —if such evidence as an having alternative to addition, Ames reasonably believed that Anderson take the stand and admit the even if Anderson had not administered the many homicide. There problems are shots, fatal he still guilty could be argument. own of admission the murder as an accom- First, the core of the strategy defense plice. event, In any the firearms evidence calling became Anderson to the stand. was conclusive that gun same This decision jury’s stemmed from the first Lyman killed Elizabeth also killed Timothy reaction to his testify. failure to Glashien. To argue as do counsel that Second, killing Anderson admitted Blun- “aside confession, from Anderson’s dell, both to Ames and Harvey and to the only linking evidence him the Glashien jury. It borders on the ridiculous to claim homicide was ballistic evidence indicating that Ames should prove have tried to an that a gun taken from Anderson when he untruth, especially when Anderson was was for the Lyman arrested homicide was prepared jury before to accept respon- used in the Glashien homicide” is like ar- sibility for this crime. guing that aside war, from a declaration of the only thing connecting Japan
We note here to the Supreme Court’s reminder in beginning Cronic that “the of the war in the Pacific Sixth Amendment does require that counsel Pearl Finally, assuming Harbor. the truth do what is impossible or unethical. If recantation, of his Glashien Anderson’s re- there is no bona charge, fide defense to the identify fusal to the real killers so cannot counsel create one and dis- may could brought justice be hardly is serve interests his client attempt of mitigation. factor in If it anything, under- ing Cronic, a useless charade.” cuts his claim to and being rehabilitation 656 n. 2039. Ames believed new man. He trapped coming or Blundell, that Anderson kill did and to going: Glashien, either he killed or he was attempt to manufacture evidence justice obstructing years his trial five contrary would be a “fraud on the court.” later so the real killers escape. could This Third, the sealed testimony, one of the trap was his own making. powerful most defense, aspects battery levels a never gotten could jury if allegations against Ames delegating for testify. Anderson did not testimony during the penalty As to the Glashien murder phase to his co-counsel Harvey Ms. Bonnie hire, appellate argue counsel that Ames joint and for their failure to him to prepare should have developed evidence to corrob testify. core of allegations these in However, orate Anderson’s recantation. Harvey’s volve Ms. recent admittance to Ames testified based on the overwhelming bar, her relative lack experience, evidence he still believed his client performance and her during the trial. We murder, have committed the it begin analysis our charges these would not have his client helped call proposition attorney a defense is confederates, who, his 'behalf his criminal not presumed to simply be ineffective be all, after were untrustworthy thugs, mur attorney cause that young, inexperi derers, drug Moreover, dealers. enced, has never before tried a Anderson refused name his confeder trial. character of or the actual “The law it, particular ates killer. On the face of yer’s this refusal left experience may Ames shed in an hamstrung. light eval killer, moment Anderson named the real uation of performance, his actual *40 is, questions she the kind of that of ineffec- justify presumption a not does up come him so he could of such an evalua- ask in the absence would tiveness Cronic, he knew. only that U.S. tion.” with the answer these problem with The main time we needed had all the But we then, perfor- actual her is that charges testimony. that him for prepare to courtroom, as indicated in the mance to was made Well, the decision Q. after Her subpar. not transcript, was trial Anderson, however, Ms. call Mr. the sealed during of Anderson examination responsibility Harvey primary took obviously well-pre- the trial was part him; cor- isn’t preparing for was compelling thorough, and pared, —as rect? to the summation heartfelt passionate her him? Preparing A. jury. Yes, testify. Q. to Moreover, Harvey was the member Ms. Meza, Bon- No, Linda all did. A. we devised the neuro- team that Anderson’s nie, me, all did. But Bonnie we and spe- defense used logical reflex asking the for responsibility had the note also retrial. We circumstances cial conducting the and exami- questions with developed rapport Harvey Ms. Anderson, but Stephen nation with literally Anderson, de- and that Anderson him preparing participated we all who should be the one that she manded him testimony, not telling for his testimony, not Ames. Ames handle his him Harvey’s acquaint say, Ms. but to about what to was concerned himself openly being point ask. inexperience, questions we would allowing her to conduct to opposed ask, I mean sayI we would When examination; Dr. Meza but She was Harvey would ask. Bonnie (1) Ames “on educated she testified only questioner. necessity client to total for the conducting direct party in the trust Harvey put togeth- Q. And Ms. Bonnie (2) examination,” convinced and that she jury regard- to argument er the Harvey to take on this allow to Ms. Ames incident; correct? ing this evidentiary hearing, At the Ames task. surround- Har- on the circumstances add that Ms. might And I elaborated A. Yes. and the reasons it: ing this decision way of this come vey did not Ames) not want (By incidentally. did She ex- [Anderson] A. examination fact, him. tome examine argument and made amined him And the completely. at that balked Stephen jury information and only way that that to, her did Anderson wanted mitigation for the subsequent to, the softer wanted me want only way Blundell murder we—the this explaining of woman touch that information gain would argument making and the one Harvey if was was Bonnie Bon- jury. It his decision him, questions posed who conduct the examina- Harvey nie condition that an absolute he made tion. testimony. of his Now, Harvey primary had re- Q. Ms. rapport Harvey developed had Ms. Mr. prepare sponsibility Mr. Anderson. herself between testify? married to a Harvey doctor Ms. I can recall the four of A. all did. We resem- community whose build in the library, the doors in the judge’s us Anderson’s, she would bled Mr. anyone, and we locked and closed var- her sweaters bring husband’s over his going time spent a lot of Mr. clothing for sundry ious him. And testimony with purported chilly It was him, during the trial. to wear would rehearse Harvey
Bonnie
*41
in the
and he
evidentiary
courtroom
was dressed
hearing. We
quote
decline to
in civilian
time,
clothes all the
from
part
record,
this
of the sealed
Mrs.
Harvey,
Anderson —strike—Mrs.
note that
prosecutor
if a
does not chal-
bring
would
her
clothing
husband’s
lenge a defense witness’s credibility with
him to wear. And there
a great
respect
evidence,
to certain
there is no
deal
rapport
between the two of need for corroboration.
them.
court
impressed
district
with
indicated,
As
key
to Anderson’s tes-
the force of the defense that Ames and his
timony was that the courtroom be closed team did choose. The court found no
public
press.
and the
Without this Sixth Amendment
deficiencies
in
secrecy, Anderson would not
take
representation,
and neither do
stand. Ames
Harvey
and Ms.
took on this we. Ames’ defense of his
impressed
client
assignment
difficult
together,
also the
judge.
state trial
At
sticky
one
prevailed over
opposition.
stiff
It is rare
in
point
jury deliberations,
juror
when one
a trial judge
public
will close a
court-
alternate,
was relieved
favor of an
Ames
room, but Ames and his co-counsel won
demonstrated
pro-
commendable skill in
that battle in this case and succeeded also
tecting
right
his client’s
jurors
to have the
permanently
sealing the record
throw out
previous
their
deliberations and
proceedings.
closed
We note that Ames
start all
again.
over
When Ames succeed-
told the
judge
trial
that he was prepared
ed
convincing the trial judge of the
to seek a “writ” from California’s Fourth
motion,
said,
soundness
his
the judge
District Court of Appeal and the “Supreme
THE COURT:
IYes. have to commend
Court,” if necessary
accomplish
his ob-
you,
always
Mr. Ames. As
you being one
jective.
[Appellee’s Sealed SER at 10].
of our most skilled
penalty
death
trial
event,
Appellant’s
much of the
you
attorneys,
only
not
know the rules
evidentiary
counsels’
hearing offerings —or
you
your
do
very
homework
careful-
should-have-dones —were
seriously
found
ly, but you consult
authorities
wanting by the district court. For exam-
field all over the state
you
whenever
ple, the court
the declaration
found
Dr.
have a problem.
you always
So
seem to
Raynold Bruce that Ames should have em-
be abreast of the situation.
ployed a mental health expert and social
Yes. I will admonish
under
historian to be unpersuasive or not credi-
Collins,
People
687, 693-94,
v.
Cal.3d
[17
ble. The court
Dr.
deemed
Bruce’s decla-
(1976).]
131 Cal.Rptr.
Smith Conn, Cir.1998). in this case 688-89; defense Could United States Maybe Cir.1983). so. Sharper? (9th However, finer? been 551-52 F.2d of Mozart’s exception possible But re- misconduct juror every incident Fifth, and Michaelan- *42 Beethoven’s Jupiter, Klee, States new trial. United quires a or labor David, every creation most gelo’s Cir.1974). (9th “The 394, 396 494 F.2d susceptible is by humankind wrought has misconduct or not the whether test is all, it All improvement. refinement that the extent the defendant prejudiced failed, it although that judgment is our fair trial.” Id. not received has team in this case provided defense bar, the district court case at In the Harvey along Bonnie Ames Donald failed to' establish found that consultants expert their team of premature jury engaged was demands of well satisfied witnesses In the district ER at 3622. deliberations. i.e., Amendment, it within Sixth view, court’s as professional range “wide of reasonable that one is evidence Strickland, Lichtman note [t]he U.S. at sistance.” possible juror contemplating contention sentences. Anderson’s Furthermore, court conclud- the district exchange between implies note present Ames done what that even had ed of life meaning jurors about the two be no the result would suggests, counsel parole specu- is possibility of without simply too case was The State’s different. lative. no Anderson can show Because strong. defense, agree. we to his
prejudice reject- the court Accordingly, ER 3622. Amend- that his Sixth claim ed Anderson’s
VI
had been violated.
rights
ment
Jury Deliberations
Premature
this
Anderson asserts
appeal,
On
Next,
clearly
that the
contends
court is
erro-
finding by
the district
penalty
premature
jurors
engaged
stated under
“Lichtman
because
neous
deliberations,
violating his
thereby
phase
note while deliber-
that she wrote the
oath
im
fair and
right to a
Amendment
Sixth
jurors, and that
other
other
ating with
Br. at 89-91. Anderson
jury.
partial
Blue
the note was
when
jurors
present
were
that,
the fact
be
argument on
bases
is not
Br. at 90. This
Blue
drafted.”
delib
penalty phase
its
jury began
fore the
stated the follow-
exactly true. Lichtman
erations,
jurors,
Licht
Valerie
one of the
oath:
ing under
judge asking
man,
to the
wrote
note
1-21-86,
writing the note dated
I recall
parole re
possibility
life without
“Does
to me
investi-
shown
which has been
Anderson, under
Or can
ally mean that?
Public Defend-
from the Federal
gators
sentence,
be re
at some future time
this note
writing
I recall
ers office.
claim is
ER at
2395. This
leased?”
in the
room.
during deliberations
merit.
without
in the
jurors
present
other
were
accepted
generally
“It
may
I
was drafted.
when the note
room
jurors
trial
principle of
administration
matter with other
discussed this
ham
a case
in discussions of
engage
not
must
cer-
I don’t recall
jurors. However
both the evidence
they have heard
before
tain.
legal
the court’s
instructions and
added).
It is there-
(emphasis
ER 3699
deliberating as a
formally
collective
begun
Lichtman wrote
fore
whether
unclear
Resko,
3 F.3d
body.” United States
jurors.”
with other
deliberating
note “while
(3d Cir.1993). Thus,
jurors pre
when
event,
claim
fail
must
any
among them
maturely discuss the case
evidence
absolutely no
there is
selves,
may
juror
misconduct.
amount
alleged
prejudiced
Calderon,
that the
misconduct has
McDowell v.
197 F.3d
(9th
any way,
Cir.1999) (en banc).
Anderson in
much less “to the
1255-56
In its
extent
that he
has
received a fair
decision, the en banc court
only
considered
Klee,
trial.”
Since the initial briefing requested by in this order however, panel’s attorneys decision McDowell would constitute an reversed sitting court en banc. anticipatory unwarranted interference with Dissenting: McKEOWN, Judge, Circuit courts. of the state prerogatives enjoin effectively order would
protective
case
phase
penalty
prosecution’s
adjudicating
state
from
courts
California
Anderson’s confessions
on Mr.
rested
of
Anderson’s waiver
concerning
law issue
psychiatrist’s
killings and
the Utah
privilege
constitute
attorney-client
evidence
him. This
interview
retain
court
the district
request
while he was held
obtained
jurisdiction over
supervisory
continuing
jail without
in a California
for 76 hours
court.
state
retrial
the conduct
hearing, and in
arraignment
anof
benefit
would con
order
unprecedented
Such
County
Riverside
violation
fed
comity and
principles
basic
travene
44, 111 S.Ct.
McLaughlin, 500 U.S.
said
Supreme Court
As
eralism.
(1991).
The chain
114 L.Ed.2d
37, 44,
Harris,
401 U.S.
Younger v.
affirmatively
when Anderson
began
events
(1971), “the Na
27 L.Ed.2d
investigators’ questions
answer
declined to
if the
best
will fare
tional Government
telling
instead
killings,
the Utah
about
free to
are
institutions
left
and their
States
At that
virtue.”
is [a]
that “silence
them
their
functions in
separate
their
perform
proceeded
police
could
point,
Perez v. Ledes
ways.”
also
See
separate
charge
the murder
arraign him on
82, 84-85,
ma,
arrested,
they did
had
been
which
(“[T]he
(1971).
admissibility
L.Ed.2d
Instead,
custody
him in
held
police
not.
*44
prosecutions
criminal
evidence
state
of
travel to Califor-
could
until Utah officials
to be resolved
ordinarily [a]
]
[is]
matter!
it,
slice
you
how
No matter
nia.
course,
..., subject, of
by state tribunals
confinement without
continued
Anderson’s
appeal
[the
or
by certiorari
to review
purpose-to inves-
was for
arraignment
one
or, in a
Court
Supreme]
United States
hope
in the
murders
tigate the Utah
corpus.”);
case,
habeas
on federal
proper
The
from Anderson.
a confession
getting
117, 120,
Minard,
72
342 U.S.
Stefanelli
circumstances
recognizes these
majority
(1951) (“[Federal
118,
138
96 L.Ed.
S.Ct.
of this evidence
suppression
holds
intervene
State
refuse to
courts should
poisonous
of the
as “fruit
warranted
use
suppress the
proceedings
criminal
in-
In this
I
otherwise.
tree.”
conclude
claimed to
when
of evidence even
fall far from the
did not
apple
stance
and sei
by unlawful search
been secured
by McLaugh-
tree,
was tainted
which
488,
Littleton, 414
zure.”);
U.S.
O’Shea v.
Mr.
majority
given
has
The
lin violation.
(1974).
669,
496,
sary under 422 U.S. government whether analysis applies, tors to determine that the latter respect to admissi- met its burden with suppression. has weighs favor of this factor bility. temporal prox- factor is the The second Brown factor is presence The first vio- imity the Fourth Amendment between of Miranda warnings. The or absence This factor car- and the confession. lation that Anderson was demonstrates record McLaughlin in a an unusual valence ries Miranda May warnings before given situation, an In the usual Brown case. Flanagan interview. and the 28 confession by a later state- arrest is followed illegal however, shows, also The record ment; thus, passage of time weakens right exercise his steps took See, e.g., United States link. the causal “silence is police when he told to silence Crews, 463, 471, virtue,” like to wait and said that he would (1980) (“In typical L.Ed.2d 537 delay answering questions. before case, however, poisonous tree’ ‘fruit of the occurred, large part, arraignment acquired by challenged evidence was until wait out Anderson’s silence order to initial Fourth some police after factor, officials arrived. This the Utah ”) (italics origi- ... Amendment violation then, in favor of weigh against or could nal). however, McLaughlin case, In a If depending purpose. on its suppression, ongoing— Amendment violation is Fourth merely to purpose of this factor is pause in which “free will” ter- there is no Fifth Amend compliance with the assess minates the effect of violation. Miranda, no violation has been ment and violation, detention itself is a extended weigh against suppres and it would found point (pre- at an begins which unidentified however, ap would approach, sion. This than after sumptively, no later 48 hours volun pear piggyback on the threshold arrest) through the confes- and continues rendering essentially inquiry, tariness Huddleston, See, e.g., State sion. analysis. the other duplicative of that On (Tenn.1996) (discussing S.W.2d hand, to assess the if this factor aims violation). McLaughlin ongoing nature of of Mi impact of the invocation or waiver McLaughlin Thus, time in a passage randa connection between rights on the case exacerbates Fourth Amendment the Fourth Amendment violation and *46 violation; de- longer the unreasonable obtained, picture ultimately confession tention, greater the detention’s inher- quite Although different. Anderson looks See, ent coercive effect on the confession. had received his Miranda rights, after Miranda, 457, e.g., 86 S.Ct. the officers decided invoked silence3 environment (describing 1602 the custodial (violating McLaughlin) him until he hold intimidating dignity). and destructive of the initial Mi case, confessed. this presumptively began Anderson’s detention randa recitation and invocation a suggest McLaughlin approximately eight to violate lesser, greater, not a connection between he confessed to the Utah hours before the Fourth Amendment violation and hours before he was Because the Brown factors killings, and fifteen confession. pending a recognizes to hold him majority implicitly the con- the officer’s desire 3. The investigation unnecessary that was request and further nection between the for silence confession, arraigning charging him. Other than a delay arraignment and and later "ah,” Anderson said although series of "uh-huh’s” it uses that connection to blame only wait and see what McLaughlin that he had "better for the violation of his right ... si- they got ,” and "I think now rights. Blaming is off the mark. — well, just . it's virtue because .. police [a] to hold him lence Anderson never invited the Waiting to right now for me to wait.” timely arraignment. He never said better without a got” cry profess- is a far from He see "what he wanted to talk with Utah authorities. ing delay a desire to talk. occasioned bears no blame for
H03
Flanagan.
Dr.
Because
The final factor centers on
interviewed
whether the
violation,
confession,
McLaughlin
police
purpose-
misconduct
this case was
contemporaneous,
and the interview were
flagrant,
ful and
requires
thus
deter-
sup-
weighs strongly
factor
favor of
‘particularly
rence. This factor “is
impor-
pression.
tant’ because it comes closest to satisfying
‘the
application
deterrence rationale for
intervening
third factor is whether
The
”
exclusionary
rule.’ United States v.
purged
circumstances
the taint of the
(9th
1407,
Cir.1989)
George,
McLaughlin violation. We have held that
883 F.2d
1416
(2)
(1)
subsequent
custody,
a
release from
(quoting
Esparza,
United States
Perez
(3)
magistrate,
(9th
a
appearance
Cir.1979)).
before
dis-
609 F.2d
(4)
lawyer,
subsequent
cussions with
police
relevant conduct is not the
behavior
charges
on unrelated
are exam-
convictions
confession,
surrounding the
but the deten-
ples
intervening
circumstances that are
tion without
probable
determination of
sufficient to break the causal connection cause. The record
demonstrates
between the Fourth Amendment violation police intentionally detained Anderson
and the statement. See
States v.
United
awaiting
police
while
the arrival of
Delgadillo-Velasquez, 856 F.2d
who
Utah
would interview Anderson about
Cir.1988).
(9th
case,
In this
no circum-
above,
killings.
the Utah
As noted
stance intervened to cure the unreason-
provide any
state was unable to
valid rea-
in the
that a
way
ableness
detention
delay.
son for the
release, appearance,
subsequent
or
convic-
then,
question,
is whether this situa-
Delgadillo-Velasquez.4
tion would under
purposes
tion meets the
of the exclusion-
speak
lawyer
Nor did Anderson
—or
ary rule.
It seems clear that it does. As
anyone
confinement.
else—
Supreme
the Tennessee
explained
Court
although
And
Anderson received Miranda
one,
very
a case
similar to this
warnings, it is well
that fresh warn-
settled
ings
purge
prior
cannot
the taint of a
Ignoring
requirements
of McLaugh-
—let
alone an
vi-
ongoing
Amendment
functionally
making
lin is
the same as
—Fourth
Brown,
601-02,
olation. See
U.S.
warrantless searches or arrests when a
2254;
York,
Dunaway v. New
situations,
required.
warrant is
In both
n.
U.S.
202-03 &
law enforcement officials act without
(1979) (Miranda warnings
L.Ed.2d 824
necessary judicial guidance
objective
intervening
and waiver did not constitute
good
applying
faith. The cost of
act, even for second confession with new
exclusionary sanction to a violation of
also,
warnings).
e.g.,
See
United States v. McLaughlin is that evidence obtained as
(10th
Cir.1993)
King, 990 F.2d
illegal
result of the
detention will be
(defendant’s voluntary confession inadmis-
suppressed ... It will deter
enforce-
law
given during illegal
sible where
detention
ignoring
ment officials from
the Fourth
no intervening
circumstances to dissi-
judicial
Amendment mandate of a
deter-
taint).
If
pate
warnings
Miranda
were
*47
probable
mination of
cause.
cause,
intervening
considered an
this third
Huddleston,
Likewise,
H05
lawyer,
subsequent
wash
cussions with a
knowledge that
could
in the
safe
safeguards of
procedural
in the
charges
their hands
convictions on unrelated
are exam-
(internal
marks
quotation
Fifth.” Id.
ples
intervening
circumstances. A deci-
omitted).
fact,
pre-
sion to confess is not.
In
when
sented with cases
which a confession
majority
leverage
is able to
The
intervened, courts have failed to find this
willing
way by
confession this
adequate “intervening
an
circumstance”
purported
on a
“decision to con-
focusing
fess,”
Dunaway,
under Brown. See
U.S. at
jurisprudence
this court’s
ignoring
circumstances,
at- 203 n. 2 &
intervening
(suppressing
on
H07 killings aggravating factors is the Utah Pankaj KATARIA, Singh impossible record. It is Karan
evident from the Petitioner, the con- conclude that the admission of inju- did not have a substantial and fession penalty phase. on the rious effect AND IMMIGRATION confession, In addition to the the state SERVICE, NATURALIZATION penalty phase at the Dr. Flana-
presented Respondent. gan’s testimony about Anderson’s behavior No. 99-70796. personality, based on his interview illegal detention. with Anderson Appeals, United States Court that, majority concludes Ninth Circuit. present a defense of Anderson did not illness, capacity or Dr. diminished mental Argued and Submitted Oct. Flanagan’s testimony insignificant. Filed Nov. defense, however, only The absence of a prejudicial the unrebutted renders more
testimony depicting Anderson as a socio-
path likely who could not be rehabilitated.
How the unreasonable detention affected statements in the interview
Anderson’s known,
cannot be the time Dr. Anderson, had
Flanagan interviewed hours, for approximately
been detained isolation, diet,
kept fed a restricted jail privileges. Flanagan’s
deprived Dr.
testimony only presented was the evidence psychological make-up.
on Anderson’s the confession and the together,
Taken Flanagan Dr. constitute evi-
interview with may have had a substantial and
dence
injurious penalty phase. effect on the
state has not demonstrated were harm-
Fourth Amendment violations
less under the Brecht standard. There-
fore, penalty I phase would reverse trial.