Habeas Review and Miranda
Robert C. Phillips
Deputy District Attorney (Ret)
June, 2019
One of the procedural tactics available to a defendant convicted of criminal violations in state court is a federal habeas corpus review. In a death penalty case, the availability of habeas review not only draws out an already lengthy process, but provides defendants with another avenue—sometimes referred to as a “collateral attack”—other than a direct appeal in his or her attempt to obtain a reversal of a death sentence.
But habeas review is very limited in its scope. A federal habeas petition in a state case is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).[1] AEDPA greatly restricts the circumstances under which a federal habeas court may grant relief to a state prisoner whose claim has already been adjudicated on the merits in State court. Under AEDPA, the federal court may only grant habeas relief if a state court’s decision was (1) “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or (2) is “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”[2]
The recent Ninth Circuit Court of Appeal case of Bradford v. Davis,[3] reviewing a capital case decision out of the California Supreme Court,[4] illustrates the limited use of a habeas corpus writ in federal court. In this case, the Court evaluated four separate interrogations of the defendant, Mark Alan Bradford, who was convicted of first degree murder and related charges, and sentenced to death upon the jury’s finding true the special circumstance of killing the victim in order to prevent her from testifying against him.
In Bradford v. Davis, a federal district court determined that the California Supreme Court had erred in failing to find each of the four interrogations to be involuntary. On appeal from this decision, the Ninth Circuit disagreed, reversing the district court’s decision as described in this article. The decision overall provides an excellent review of the limited scope of habeas review under AEDPA, as well as some good case authority on the differences between a defendant’s inculpatory statements made where his rights under Miranda v. Arizona[5] are violated, and involuntary statements.
First, however, the horrendous circumstances of defendant’s crime must be reviewed if only, for no other reason, to illustrate why this case is worthy of California’s most severe punishment; i.e., death. The following description of the facts is obtained from defendant’s own statements made to the police investigators as well as the physical evidence at the scene, as detailed by the Ninth Circuit and the California Supreme Court:
The victim’s name is Lynea Kokes. She and her husband, Alexander, were just starting a family with a baby boy. Lynea had recently obtained employment as the new manager of an apartment complex in Panorama City called the Panorama City Lodge. She, Alexander, and their baby were scheduled to move into apartment 238 on April 18, 1988.
Defendant lived with another person—Randall Beerman—in apartment 252 of the Lodge. On April 18, defendant and Beerman were playing cards in their apartment while getting wasted, drinking Black Velvet and beer.
Alexander Kokes last saw his wife that morning as she was dressing their son and preparing breakfast before taking him to the babysitter. The plan was to meet at their old apartment at 6 p.m., pick up the baby from the babysitter, and load up their remaining belongings in order to move them into their new apartment. It was the last time Alexander would ever see his wife alive.
By 2:00 p.m., Lynea was moving some of their stuff into apartment 238. Defendant offered to help her. Defendant, who had been observed by others “leering” at Lynea, described her as attractive, betting Beerman that “he’d get her in bed that day while her husband was gone.”
Later that afternoon, the assistant manager had an altercation with defendant concerning him being behind in his rent and also possibly breaking into the Lodge’s office. Defendant was told to move out.
After this discussion, defendant sought Lynea out for the purported purpose of working out a payment schedule, ignoring the fact that he had just been evicted. Unaware that he’d been told to pack up and go by the assistant manager, she agreed to work something out. Defendant, however, unexpectedly responded to this kindness by “grabb(ing) her throat,” and, as she gasped for air, pulling off her clothes. Lynea was repeatedly raped and sodomized while defendant continually hit her until she lost consciousness. Lynea bled from the nose, choked on her own blood, and continued to gasp for air.
The forensic evidence later indicated that Lynea had been raped and sodomized, although there was also evidence of semen in her mouth. Her nipples had been “savage[ly]” bitten off, and never recovered. Her eye was blackened and her nose was broken in several places. Hemorrhages on the right and left side of her neck were the result of force being applied to the larynx and neck area. A ligature was tied around her neck so tightly it cut off air, and her throat was slashed twice. There were also seven penetrating stab wounds. Five of these wounds went through her rib bones, fracturing them, and four penetrated her heart. There were also smaller nicks and nonpenetrating wounds. All of these injuries occurred while she was alive. The cause of death was determined to be from a combination of the strangulation and the stab wounds to her chest. There were no defensive wounds.
When later interrogated, defendant admitted to leaving the semi-conscious Lynea after sexually assaulting her to wash up in his own apartment. Worried that she might survive and identify him as her assailant, he obtained a knife from his kitchen and returned to apartment 238, slashing Lynea’s neck several times and repeatedly stabbing her in the chest until he was sure she was dead. Defendant stabbed her so hard that he broke off the blade.
Alexander found his dead wife that evening when he went looking for her after she failed to meet him at their old apartment, as they had planned. Defendant was quickly arrested in his apartment based upon information supplied by his roommate, Beerman, who had found the parts to the broken knife and gave them to the police.[6]
Over the next two days, defendant was questioned four times by police investigators. The admissibility and voluntariness of each of those interrogations was the subject of the Ninth Circuit’s decision in Bradford v. Davis. Each interrogation, all involving different issues, are discussed separately.
Statement #1; Ignoring a Miranda invocation:
Defendant’s first statement to detectives was ruled by the trial court to be inadmissible in the People’s case-in-chief in that it was obtained in clear violation of the rules of Miranda. Despite its inadmissibility, defendant’s statements were held to be voluntarily obtained; a ruling upheld by the California Supreme Court.[7]
Specifically, some six hours after his arrest, defendant was questioned by two detectives. After initially obtaining defendant’s background information, he was read his Miranda rights and asked if he wanted to speak about “what happened last night.” Defendant unhesitatingly declined, clearly and unequivocally asking for the assistance of counsel.
Perhaps having been trained that even though an in-custody suspect invokes his rights questioning can continue with the goal of obtaining impeachment evidence. As a rule, a suspect’s incriminating statements obtained in violation of Miranda may still be admitted into evidence for the purpose of impeachment should the defendant choose to testify in a manner that is inconsistent with his otherwise inadmissible statements to police.[8] To encourage defendant to provide such potentially damaging evidence, the officers suggested to defendant that they could continue, albeit “off the record.” Defendant agreed, and proceeded to incriminate himself.[9]
The wisdom of an interrogation tactic that includes an intentional Miranda violation remains a debatable issue. It is at the very least questionable whether prosecutors, as “officers of the court,” should be encouraging police interrogators to intentionally violate Miranda.
The Ninth Circuit Court of Appeal’s earlier decisions strongly condemned such a practice.[10] More recently, however, the Court has recognized that so long as not “coerced,” a suspect’s incriminating statements obtained after a Miranda invocation are admissible for impeachment purposes.[11]
The United States Supreme Court, at least by implication, seems to condone such a practice. The High Court, for instance, has held that statements obtained in violation of Miranda are indeed admissible for impeachment purposes so long as the trustworthiness of such statements satisfy the applicable legal standards.[12]
The California Supreme Court, although also condoning the practice, has done so only reluctantly, warning law enforcement several times that incriminating statements purposely elicited from an in-custody suspect who has invoked his right to counsel (or to silence), even though done for the sole purpose of obtaining admissible impeachment evidence, is still “obtained illegally.” Per the Court: “(I)t is indeed police misconduct to interrogate a suspect in custody who has invoked the right to counsel.”[13]
California’s Supreme Court has in fact hinted that if it is found that such a practice becomes widespread or pursuant to an official police department practice, a new exclusionary rule may be developed to resolve the problem.[14] It is already a rule that an intentional Miranda violation, when combined with other aggravating circumstances, may be sufficient to constitute a Fourteenth Amendment “due process” violation, making the resulting reinitiation of an interrogation involuntary, and the statements subsequently obtained from a defendant inadmissible for any purpose, including impeachment.[15]
Most recently, California’s Second District Court of Appeal (Div. 2), in describing an intentional Miranda violation, noted that the “(t)he police conduct in this case was deplorable.” [16] The police conduct referred to involved repeatedly ignoring defendant’s attempts to invoke his right to counsel, asking him why he thought he needed an attorney, telling him that he would not be jailed if he confessed, and then using his girlfriend as a police agent by putting the two together in an interview room in the hopes he would confess to her (which he in fact did). The only thing that saved defendant’s eventual confession was the fact that under the unique circumstances of this case, the Court found the confession not to be the product of the earlier police misconduct.
But be that as it may, in Bradford, the trial court ruled that although the defendant’s incriminating statements resulting from this interrogation were inadmissible, being the product of a Miranda violation, the statements were not involuntary, leaving them available for purposes of impeachment. On direct appeal, the California Supreme Court agreed.[17]
The district court, however, disagreed, holding that the California Supreme Court’s decision to the effect that defendant’s statements, although obtained in violation of Miranda were nonetheless voluntary, was “contrary to and an unreasonable application of federal law because the detectives continued to interrogate Bradford after he invoked his right to counsel and made misleading statements regarding potential defenses.”[18]
The Ninth Circuit overruled the district court’s decision, finding that the California Supreme Court’s “totality of the circumstances” analysis was neither contrary to, nor an unreasonable application of, federal law; the only issue in a habeas corpus analysis. Having the advantage of listening to the tape-recorded interrogation, the Court found Bradford to be in full control of himself, noting specifically that the tone of his voice was “steady and flat.” Without providing a detailed analysis of the issue, the Ninth Circuit simply found that the case law, as relied upon by the California Supreme Court, clearly supported the California Courts’ (trial and Supreme) conclusions. Despite the detectives purposely ignoring defendant’s unequivocal invocation of his right to counsel, therefore, the Court found that California’s application of the federal voluntariness analysis was proper, and that defendant’s incriminating statements were not involuntarily obtained.[19]
Statement #2; Booking Questions:
Defendant was booked by two officers not otherwise involved in the investigation of defendant’s crimes, about 45 minutes after his initial interrogation. While defendant was being fingerprinted, a detective, who happened to be present conducting other business, mentioned to defendant that he looked “like a traffic ticket.” Perhaps offended that he could be accused of something so menial, defendant corrected the detective by simply responding; “Murder.” The detective left without further comment. Then, perhaps still thinking no one believed him, defendant volunteered in the presence of the two booking officers that that he had helped Lynea move into her apartment, choked her, left the apartment to clean up, and returned to kill her. One of the officers asked defendant if he felt sorry. Apparently receiving no response, she and the other officer (no doubt more out of curiosity than feeling the need to conduct a formal interrogation) then proceeded to ask him several questions about the crime. Neither officer thought to advise defendant of his rights.[20]
The Court broke their analysis of what was overall termed “booking questions” into two parts. It initially discussed defendant’s simple comment, i.e., “murder,” uttered after having been told he looked like he was no more important than a traffic ticket. Included in this first part was defendant’s unsolicited recitation of the facts surrounding the murder for which he was being booked.
The trial court had admitted this portion of defendant’s booking questions into evidence. The California Supreme Court agreed.[21] The federal district court, however, ruled that this was all a direct product of the earlier interrogation and thus involuntary, and should not have been admitted. The federal district court found all these statements to be involuntary. The Ninth Circuit, siding with the California Supreme Court, again disagreed.[22]
The California Supreme Court had ruled that the detective’s casual comment about defendant looking like a traffic ticket was unlikely to elicit an incriminating response, and thus did not constitute an interrogation.[23] The Ninth Circuit found that this conclusion was not contrary to, nor an unreasonable application of, federal law.[24]
For the Miranda admonishment requirements to apply, there must be a custodial interrogation. A custodial interrogation is defined as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.”[25] It has also been held that such an interrogation “must reflect a measure of compulsion above and beyond that inherent in custody itself.”[26] The definition of an interrogation has further been refined by the Supreme Court to include the requirement that for there to be an interrogation, the officer “should have known (that his words or actions) were reasonably likely to elicit an incriminating response.”[27]
The Court here agreed with the California Supreme Court that the detective’s comment to defendant about looking like a traffic ticket did in fact constitute “questioning,” but that even so, it was not something he should have known would elicit an incriminating response. As such, it was not an interrogation. Defendant’s response, not requiring a Miranda admonishment or waiver to be admissible in evidence, was therefore properly used against him.[28]
After the detective left, defendant initiated on his own a brief recitation of the events surrounding the murder, made in the immediate presence of the two booking officers. The Court found that this portion of the booking-question scenario was also not the product of a custodial interrogation, his volunteered statements being unprompted by the officers.[29] As such, defendant’s statements about the murder were properly admitted into evidence.
The second half of defendant’s booking statements constitute that portion where he was in fact subjected to questioning by the booking officers without benefit of a Miranda admonishment. The California Supreme Court ruled that although inadmissible as a Miranda violation, such statements were not involuntary under the circumstances, and that any error in the admission of his responses to this questioning was harmless “beyond a reasonable doubt,” finding it duplicative of his fourth statement (below) and with the evidence of his guilt being so “overwhelming.”[30]
Again, the federal district court ruled that these responses were also tainted by the initial coerced confession obtained by the investigator upon defendant’s initial arrest. The Ninth Circuit, again overruling the district court, found that the California Supreme Court’s conclusion that this part of the second statement was voluntary despite being inadmissible, and so concluding was not unreasonable or contrary to federal law.[31]
Statement #3; The Continued Interrogation:
Some eleven hours after initially being taken into custody, defendant was questioned again by yet another detective. This detective, before questioning defendant, even confirmed that he had previously invoked his right to counsel. Defendant agreed that he did, and that he continued to seek the assistance of counsel “to help me out a little bit.” Despite this affirmation of defendant’s request for counsel, the detective proceeded to interrogate him “off the record.” This interrogation resulted in an extremely detailed and incriminating description of the murder and its aftermath.[32]
The district court found this confession to be not only unlawful under Miranda, but involuntary as well. Again, the Ninth Circuit disagreed, at least as to whether it was involuntary. Terming this interrogation as “unethical and . . . strongly disapproved,” given the fact that it was conducted in the face of defendant’s previous, and reiterated, invocation to his right to the assistance of counsel, the Ninth Circuit again agreed with the California Supreme Court’s conclusion that under the totality of the circumstances, defendant’s responses were not involuntary.
Contrary to the district court’s findings, this statement was not tainted by a prior involuntary statement, having already decided that none of the prior statements were involuntary. There was also nothing to support an argument that this third statement, by itself, was involuntary even though inadmissible due to the clear violation of Miranda. During the interview, defendant betrayed no emotion, distress, or discomfort. There was no indication that defendant’s will was “overborne” during the interrogation.[33] As such, not being an involuntary statement, defendant’s incriminating statements made in this interview would be admissible if needed for impeachment purposes, should defendant testify and change his story.
Statement #4; Defendant Reinitiates:
Some 24 hours later, during which time there were no new law enforcement initiated contacts, the in-custody defendant requested that one of the detectives contact him, indicating that he wanted to put a statement on the record.[34]
When asked by the responding detective why he wanted to talk with him, defendant told him: “I had some questions and I’ll probably talk, I don’t know.” Defendant was told that if he wanted to give an “on the record statement,” he would first be readvised of his constitutional rights, pointing out specifically that he still had the right to an attorney. Asked if he understood that he had the right to counsel, defendant affirmed that he did. Defendant was asked whether he now wanted to give up his right to an attorney, and defendant said that he did. Defendant was then given the complete Miranda advisal, following which he was asked if he wanted to “give up your right to remain silent.” Defendant again stated that he did. Asked several more times whether that was in fact his wish, defendant repeated that it was. Finally, the detective asked defendant: “Ok — do you wish to give up your right to have an attorney present during questioning.” Defendant responded with an unequivocal; “Yes.” A full confession followed. [35]
The California Supreme Court upheld the trial court’s admission into evidence of this confession.[36] On habeas, the federal district court disagreed, ruling that it was tainted by the three prior involuntary statements.
The Ninth Circuit overruled the district court, finding again that the conclusions of the California Supreme Court were neither unreasonable nor contrary to federal law.[37]
The law, coming directly from the U.S. Supreme Court, is clear: “A defendant who has asserted his right to counsel may still subsequently waive his Miranda rights.”[38] An earlier invocation to one’s right to the assistance of counsel “does not foreclose finding a waiver of Fifth Amendment protections . . . provided the accused has initiated the conversation or discussions with the authorities.”[39]
Here, defendant himself initiated this fourth interrogation, without any prompting by law enforcement. The waiver of his rights under Miranda, before questioning was begun, was found to be knowing and intelligent, and there is nothing in the record to suggest otherwise. In fact, the detective—knowing that defendant had previously invoke his right to counsel—specifically reminded defendant of this fact, asking several times whether defendant was changing his mind on his request for the assistance of counsel.
The Court also concluded that having already determined that the three prior statements made by defendant, whether or not admissible into evidence in the People’s case-in-chief, were not involuntary, there was no reason why the California Supreme Court should have been concerned with whether this last statement was tainted any or all of them. And there is no U.S. Supreme Court precedent dictating that just because some of a suspect’s prior statements are inadmissible, having been obtained in violation of Miranda, that this fact alone prevents a suspect from changing his mind and waiving his rights in a later self-initiated interrogation. It therefore cannot be said that the California Supreme Court erred in concluding that nothing occurred in the first three interrogations that “amounted to psychological coercion” sufficient “to break down (defendant’s) resistance,” and “that ‘no coercive threats or promises’ were made.”[40]
Conclusion:
The Ninth Circuit concluded that “(n)one of the California Supreme Court’s conclusions regarding the voluntariness and admissibility of (defendant’s) four post-arrest statements deserves to be disturbed on federal habeas review.”[41] This was because in affirming defendant’s conviction and death sentence, the California Supreme Court did not unreasonably apply clearly established federal law or reach conclusions that were contrary to federal law. This being the sole issue when reviewing a habeas corpus ruling out of a lower court, the California Supreme Court affirmance of defendant’s conviction and death sentence was affirmed.
[1] Pub. L. No. 104-132, 110 Stat. 1214 (1996)
[2] 28 U.S.C. § 2254(d). See Martinez v. Cate (9th Cir. 2018) 903 F.3rd 982, 991.
[3] (9th Cir. May 3, 2019) __F.3rd __ [2019 U.S. App LEXIS 13333].
[4] People v. Bradford (1997) 14 Cal.4th 1005
[5] (1966) 384 U.S. 436
[6] People v. Bradford, supra, at pp. 1017-1022;
Bradford v. Davis, supra, at pp. __.
[7] People v. Bradford, supra, at pp. 1032-1034.
[8] Harris v. New York (1971) 401 U.S. 222
[9] Bradford v. Davis, supra, at pp. __.
[10] See Henry v. Kernan (9th Cir. 1999) 177 F.3rd 1152, amended at 197 F.3rd 1021.); and
California Attorneys for Criminal Justice v. Butts (9th Cir. 1999) 195 F.3rd 1039
[11] Pollard v. Galaza (9th Cir. 2002) 290 F.3rd 1030.
[12] Mincey v. Arizona (1978( 437 U.S. 385, 397-298.
[13] People v. Nguyen (2015) 61 Cal.4th 1015, 1075-1077; quoting People v. Peevy (1998) 17 Cal.4th 1184, 1205.
[14] Ibid.
[15] See People v. Neal (2003) 31 Cal.4th 63, 79.
[16] People v. Orozco (2019) 32 Cal.App.5th 802, at pg. 816
[17] People v. Bradford, supra, at p. 1041.
[18] Bradford v. Davis (9th Cir. May 3, 2019) __F.3rd __, __ [2019 U.S. App LEXIS 13333].
[19] Ibid.
[20] Supra, at p. __.
[21] People v. Bradford, supra, at p. 1024.
[22] Bradford v. Davis, supra, at p. __.
[23] People v. Bradford, supra.
[24] Bradford v. Davis, supra, at p. __.
[25] Miranda v. Arizona, supra, at p. 444.
[26] Rhode Island v. Innis (1980) 446 U.S. 291, 300.
[27] Supra, at p. 302.
[28] Bradford v. Davis, supra, at p. __.
[29] Supra, at p. __.
[30] People v. Bradford, supra, at p. 1038.
[31] Bradford v. Davis, supra, at p. __.
[32] Supra, at p. __.
[33] Supra, at p. __.
[34] Supra, at p. __.
[35] Supra, at p. __.
[36] People v. Bradford, supra, at pp. 1043-1046.
[37] Bradford v. Davis, supra, at p. __.
[38] Ibid.
[39] Supra, at p. __, quoting Minnick v. Mississippi (1990) 498 U.S. 146, 156.
[40] Supra, at p. __.
[41] Supra, at p. __
