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A Ninth Circuit opinion frightened me today because it reverses the first degree murder conviction of Jerome Alvin Anderson. The opinion in Anderson v. Terhune written by the Hon. M. Margaret McKeown stirs up this Constitutional controversy — the Fifth Amendment and when you’ve truly invoked it.

Jerome Alvin Anderson was arrested in Shasta County on suspicion of murdering a friend for stealing another friend’s car. According to Judge McKeown, writing for the majority, this is how his interrogation went:

Anderson twice attempted to stop police questioning, stating “I don’t even wanna talk about this no more,” and “Uh! I’m through with this.” After questioning continued, Anderson stated unequivocally, “I plead the Fifth.” Instead of honoring this unambiguous invocation of the Fifth Amendment, the officer queried, “Plead the Fifth. What’s that?” and then continued the questioning, ultimately obtaining a confession. It is rare for the courts to see such a pristine invocation of the Fifth Amendment and extraordinary to see such flagrant disregard of the right to remain silent.

 

Judging solely by the opinion, the police seem not to have interpreted Anderson’s requests as deal-breakers until he said “I’d like to have an attorney present.” But after a break, they decided he wanted to keep going, continued the interrogation and eventually got a confession.

Anderson was subsequently convicted of murder with special circumstances. He argued with the Superior Court and the CA that his confession was inadmissible, but both courts thought his request to take the Fifth was ambiguous. It ended up before the Ninth Circuit because he asked for a writ of habeas corpus. A Brief of Amici Curiae was filed on behalf of the Federal and Community Defenders in the Ninth Circuit in Support of Anderson’s hearing.

Let’s ignore the interrogation transcript for a moment and turn to the way the Ninth Circuit interpreted it. The majority seems to be saying that the state courts were unreasonable in finding that Anderson’s Fifth Amendment request was ambiguous. Even if he kept talking after that, they said, it doesn’t matter because law enforcement has a duty to back off once you take the Fifth. The concurrence, by Silverman and Rawlinson, says they agree but want to make sure people know they think the state courts were unreasonable on one issue, not legally incorrect.

(Not sure how to interpret their motives for this — judicial politeness or genuine legal hair-splitting?) The concurrence/dissent, by Bea, seems to agree that Anderson clearly took the Fifth, but says that because he re-initiated the conversation afterward, his confession is legit. The dissenters, Tallman and Callahan, seem to believe that context shows that the state courts were not unreasonable — Anderson did not clearly invoke his Fifth Amendment rights, and the police officer was legitimately trying to clarify when they asked what the Fifth Amendment is.

I am drawing two lessons here: First, appeals judges are very, very interested in the Fifth Amendment and willing to split legal hairs over it. And second, if you’re ever in Anderson’s position, ask for a lawyer, SHUT UP and STAY SHUT UP.

Even the California Peace Officer Standards and Training (POST) followed this case. I wonder how many agencies will have some retraining. Suggestion: Perhaps you can watch countless reruns of Law & Order on USA or UPN to figure out which ones McCoy wouldn’t violate.

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