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: How Appealing

Of Beethoven, of vodka, or of the Bill of Rights containing the first ten amendments to the U.S. Constitution?

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Of Beethoven, of vodka, or of the Bill of Rights containing the first ten amendments to the U.S. Constitution? The U.S. Supreme Court has ruled that if a criminal suspect indicates in any manner during custodial questioning that he wishes to remain silent, interrogation must cease. Today, a fifteen-judge en banc panel of the U.S. Court of Appeals for the Ninth Circuit resolves whether a criminal defendant's statement, during an interrogation, that "I plead the fifth" is sufficient to invoke the right to remain silent. Complicating this question, the appeal arises in the habeas context challenging a state court conviction and is governed by the federal law whose acronym is AEDPA. The majority, in a decision that you can access here, overturns the federal district court's denial of habeas relief.

Back on November 6, 2006, a three-judge Ninth Circuit panel voted 2-1 to affirm the district court's denial of habeas relief. Now-Chief Judge Alex Kozinski joined in the original panel's majority opinion, which a federal district judge sitting by designation wrote. The judge who dissented from the panel opinion wrote the en banc majority opinion on behalf of a sizable majority. Because this case was reargued en banc before Kozinski became the Ninth Circuit's chief judge, he was not guaranteed a seat on the en banc panel, and he was not randomly selected to serve on the en banc panel. Thus, we can only imagine what he might have said in response to today's ruling.

Full post as published by How Appealing on February 15, 2008 (boomark / email).