After hearing oral argument four years ago, a 2-1 Ninth Circuit panel yesterday affirmed the denial of a condemned prisoner’s habeas corpus petition. In Michaels v. Davis, the federal appeals court judges all agreed that Michaels’s conviction should be undisturbed despite also finding that part of the California Supreme Court opinion affirming his death sentence was unreasonable. One judge wrote the penalty should be vacated.
The Supreme Court affirmed Michael’s death penalty for a 1988 murder. (People v. Michaels (2002) 28 Cal.4th 486.) It denied state habeas petitions in 2003 and 2009.
Even applying the federal Antiterrorism and Effective Death Penalty Act standards that “are ‘highly deferential’ to the state court,” all three judges in a per curiam opinion found constitutional error in the admission of a confession and concluded the Supreme Court’s analysis of the issue “was contrary to the law clearly established by Miranda and its progeny.” (The Supreme Court had “ignore[d] a defendant’s unambiguous and unequivocal selective invocation of his right to silence as to an area of inquiry during a custodial interrogation, requiring instead that the refusal be repeated in response to each question regarding the subject matter as to which the right was earlier invoked.”) They found the error harmless, however, as to Michaels’s conviction.
The panel also held the disclosure to the prosecution of a note from Michaels to his attorneys threatening to harm one of his codefendants at the preliminary hearing resulted from “egregious violations of trial counsel’s duty of confidentiality under California law.”
A separate majority opinion explained that it and a dissenting opinion “part ways on the sole question whether these constitutional errors prejudiced Michaels during the penalty phase of the trial.” The majority concluded there was no prejudice, while the dissent “harbor[ed] grave doubt that the harmless error standard is met.”
The Ninth Circuit usually, but not always, refuses to overturn Supreme Court death penalty affirmances.
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In my humble opinion [speaking solely as an individual without reference to my history as a retired Supreme Court attorney now on inactive status who had no involvement with the opinion on appeal or the rulings on the habeas petitions in this matter], the 9th Circuit opinion is hogwash and its sole criticism of the court’s treatment of the Miranda completely ignores the context of the “Okay, that one” statement in attributing a unreasonable interpretation of it. Mike Hersek and Joe Schlesinger would undoubtedly disagree with me, but it would not be the first time for that.