Federal Judiciary

En Banc Ninth Addresses Whether ?I Plead the Fifth? Is Ambiguous

By Robert Loblaw

Anderson v. Terhune, 04-17237 (9^th Cir., Feb. 15, 2008)

A little over a year ago, I wrote about a startling habeas decision from the Ninth Circuit involving a defendant?s assertion of his Fifth Amendment right to silence. Under Miranda and its progeny, when a suspect asserts his Fifth Amendment right to silence during custodial interrogation, all police questioning must cease. Yet in this case, petitioner Jerome Anderson was convicted based largely on statements he made shortly after telling officers, “I plead the Fifth.” The officer responded, “Plead the Fifth? What?s that?” The questioning continued, and Anderson?s subsequent answers were used to convict him of murder.

Anderson appealed, arguing that his statements should have been suppressed. Remarkably, the California Court of Appeal affirmed his conviction on the ground that the phrase “I plead the Fifth” was ambiguous and therefore the continued questioning was legitimate. Even more remarkably, a divided panel of the Ninth deferred to the state court?s finding and denied habeas relief.

But the decision went en banc, and the Ninth just issued its order. Can you guess whether the Court ordered habeas relief? I?ll give you a hint: Judges Tallman and Callahan dissented, and Judge Bea added a partial dissent.

Full post as published by Decision of the Day on February 15, 2008 (boomark / email).