A 5-2 Supreme Court today affirms the death sentence in People v. Johnson for the 1996 murder of a Ventura County sheriff’s deputy. The justices disagree whether the superior court properly admitted incriminating statements the defendant made to a psychiatrist retained by the district attorney’s office. The two spoke in a hospital emergency room where the defendant was being treated for a gunshot wound soon after the murder and after the defendant had more than once invoked his Miranda rights to remain silent and to have an attorney.

The 133-page majority opinion by Justice Joshua Groban says the “the issue is close” and the court acknowledges being “troubled by . . . law enforcement conduct” in committing “multiple clear violations of Miranda” before the defendant talked to the psychiatrist: “law enforcement officials had, within the previous three hours, twice contacted defendant about his willingness to provide a statement, impermissibly interviewed him, and angrily confronted him about [the deputy’s] murder (after defendant had invoked counsel to the same officer).” However, the court holds the “defendant initiated the subsequent conversation with [the psychiatrist] and did so with a knowing and voluntary waiver” of his Miranda rights.

Justice Goodwin Liu, joined by pro tem Justice Luis Lavin, writes a 21-page dissent. He asserts that the defendant’s initiation of the conversation “was the product of the multiple constitutional violations earlier that night, including two violations by [the psychiatrist] himself” and was “the culmination of a continuous series of unconstitutional law enforcement tactics intended to get [the defendant] to talk.” He says that the “tactic [of] sending in a medical professional as an agent for the prosecution . . . is one of the oldest in the book.”

As is normal in direct and automatic death penalty appeals where the court cannot narrow the issues, there are a number of other arguments addressed, none of which prevail, including prosecutorial misconduct claims. The court does find improper actions by the prosecutor, like a statement in opposition to a new trial motion about a defense expert’s “effeminate mannerisms” that the court labels “by any measure, offensive and inappropriate,” but concludes the misconduct was not prejudicial because most of it occurred outside the jury’s presence.