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On SCOTUS Remand, Teen Gets Habeas Relief From En Banc 9th Cir.

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By William Peacock, Esq. on September 23, 2014 3:55 PM

In 1999, a then-19-year-old burglary and murder suspect named Tio Dinero Sessoms was interrogated by police officers. They did not advise him of his Miranda rights, and after a bit of overly polite small talk, Sessoms stated, "There wouldn't be any possible way that I could have a -- a lawyer present while we do this?"

The detectives began to parry his question, which led Sessoms to meekly mention that his father "asked me to ask you guys ... uh, give me a lawyer."

If that was an unambiguous request for counsel, questioning should have stopped. But the trial court and California appellate courts held that the two statements were not unambiguous (the first was a question, the second was a statement about his father's advice) and let his subsequent incriminating statements into the trial and his conviction to stand.

Now, on its third take on the case, an en banc Ninth Circuit has granted habeas relief.

Third Time's a Charm?

The last time we saw Tio Sessoms, a split Ninth Circuit panel was denying habeas relief. The majority agreed with the California appeals courts and the trial court -- Sessoms' requests for counsel were too ambiguous to count as an "unequivocal" exercise of his right to counsel.

An en banc court would disagree, holding that since Miranda warnings weren't given, the requirement of an unambiguous assertion of his right to counsel was unnecessary. But, if it was, this was a pretty clear exercise of that right.

The Supreme Court granted cert., and issued a summary reversal, pointing to Salinas v. Texas (2013), which nixes the first part of that holding. In short, regardless of Miranda warnings, Sessoms had to have unequivocally exercised his right.

'Give Me a Lawyer'

Judge M. Margaret McKeown, writing for the majority, didn't see much ambiguity here:

"When a suspect says 'give me a lawyer,' that request walks, swims, and quacks like a duck. It is an unambiguous request for a lawyer, no matter how you slice it. The statement is unequivocal -- it is not a maybe or a perhaps -- it is an invocation of the Fifth Amendment right to counsel."

She also took issue with the state courts' consideration of the two requests for counsel in isolation, rather than in context. She held that the first statement was a clear request for counsel when considered in context with Sessoms' ongoing, deferential, polite comments to the officers. And even if it wasn't, the second statement, which ended with "give me a lawyer," left no room for doubt whatsoever.

Chief Judge Alex Kozinski agreed, arguing that the state court "carefully crafted" its opinion "to exploit every ambiguity in the timid utterances of a scared and lonely teenager." Nonetheless, he "reluctantly" dissented.

Why? And why were there two other dissents, signed on to by a total of five judges, all arguing for Sessoms' conviction to stand? We'll have that part of the story tomorrow.

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