Although the Supreme Court yesterday denied review of the Second District, Division Four, Court of Appeal unpublished opinion in People v. Rivera without any recorded votes to grant, Justice Joshua Groban wrote a two-page separate statement expressing “serious doubts” about an interrogation procedure that elicited confessions from the defendant. Justices Goodwin Liu and Martin Jenkins signed the statement.

After the defendant had invoked his Miranda right to remain silent, the police continued questioning him and used statements he made to brief a jailhouse informant who then successfully induced the defendant to incriminate himself. Division Four followed consistent Court of Appeal case law that there’s no constitutional problem “when a defendant who has invoked the Miranda right to counsel subsequently speaks to a person he or she does not know is an agent of the police.”

Despite his “serious doubts” about the police practices, Justice Groban said he didn’t vote for review because the Court of Appeal found any error to be harmless, but, he concluded, “Perhaps a more complete record, developed on habeas corpus, will present a different picture.”

In the past, Justice Liu has criticized the legality of surreptitious police agent questioning after a defendant’s invocation of Miranda rights and he has repeatedly dissented from the court’s declining to review the issue. (See here, here, and here.) It’s unclear whether Justices Groban and Jenkins are now also interested in that issue per se or whether their qualms stem just from the non-covert post-invocation questioning.

In 2015, Justice Liu revived a long-dormant practice of issuing separate statements upon the court’s denial of review, and he has done so on numerous occasions since then. Other justices — including Justice Groban — have filed separate statements, but less frequently.