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Garner v. Mitchell:
I realize this is usually Jonathan's topic, but I thought I would point out yet another remarkable divided Sixth Circuit capital habeas case, this one handed down yesterday: Garner v. Mitchell. I suspect this decision won't be the last ruling in the case.

  This opinion by Judge Moore, joined by Judge Martin, orders the state to release (or retry) death row inmate William Garner on the ground that he did not properly waive his Miranda rights in 1992 before confessing to setting a fire that killed several children. Garner was read his Miranda rights and signed the form waiving those rights, and apparently there was no particular evidence at the time of the waiver that Garner didn't understand what was happening. In state habeas proceedings, Garner did not raise whether his Miranda waiver was proper. He did raise the claim in federal habeas proceedings, however, and the district court allowed the defense to supplement the record with a defense expert report based heavily on an interview with Garner in 1986 1998. In that interview, Garner was found to have a low IQ of 76, and based on tests performed at that interview (as I understand it) the expert concludes that Garner did not have a full comprehension of the constitutional rights he was waiving in 1992.

  On appeal, the Sixth Circuit instructs the district court to issue the writ of habeas corpus ordering Garner to be freed unless the state retries Garner within 180 days. First, the Sixth Circuit rules that it has de novo review of the Miranda issue. Garner had never actually raised the issue in state court, but the issue wasn't procedurally defaulted because the state hadn't raised the procedural default issue before the district court and therefore had waived the claim. And AEDPA didn't apply because the state courts had never actually addressed the issue before, meaning that there was no state court judgment to defer to. On the merits, the court finds itself greatly persuaded by the defense's expert witness report stating that although Garner appeared to have knowingly and voluntarily waived his Miranda rights, in fact he did not have full comprehension of the meaning of his Miranda rights and the constitutional right to remain silent. Thus the waiver was not actually proper even thought it looked proper, and Garner must be released from death row and set free. Judge Rogers dissented.

  Chances the Supreme Court will take the case if the en banc Sixth Circuit does not: Pretty good, either on the procedural or substantive issues or both. It looks like there's a split on the standard of review (see Judge Rogers' dissent), and off the top of my head I don't think I have ever seen a court conclude that a garden-variety Miranda waiver was improper on the basis of a report like this. Thanks to How Appealing for the link.
Anderson (mail):
and off the top of my head I don't think I have ever seen a court conclude that a garden-variety Miranda waiver was improper on the basis of a report like this

Well, it's not a ridiculous claim. If I don't have the mental capacity to understand my rights, I can't waive them.

OTOH, it's puzzling to contemplate what the correct police procedure should be -- a person with a 76 IQ is not necessarily going to be so impaired that cops can pick up on a potential issue on the spot. And routine IQ evaluations before questioning suspects ... well, permit me to doubt.
9.12.2007 12:39pm
JSinAZ:
There is something fundamental here that I don't understand: how can someone be incompetant-enough not to understand their Miranda rights, yet be competant to stand trial?

Are there two standards at work, or am I misunderstanding the difference between competance to assist in a defense verses the voluntary waving of Miranda rights?
9.12.2007 1:03pm
GV:
Having read the opinion, it looks like the court's conclusions regarding the issue of procedural default and standard of review are quite strong. I'd be interested to hear from those who think otherwise.

I also find the majority's argument on the issue of waiver to be compelling; despite Orin's (misleading?) framing of the issue, the court had abundant evidence beyond a low IQ test and an "interview" to support the conclusion that the defendant did not knowingly and intelligently waive his rights; from the court's conclusion (with citations removed):


In sum, the evidence shows that Garner was nineteen years old at the time of his interrogation and had a very poor education, an IQ of 76, and other significant limitations in intellectual functioning, including limitations directly related to understanding and comprehension of his Miranda rights. Specifically, Dr. Everington's unrebutted expert evidence indicated that Garner could not satisfactorily define the word "right" and did not understand the right to remain silent. Similar evidence has led other courts to conclude that suspects did not knowingly and intelligently waive their Miranda rights. [Listing cases] We agree with the analysis of those courts: Garner's young age, indeterminate prior experience with the legal system, poor education, significant limitations in intellectual functioning, and the unrebutted expert evidence all tend to show that Garner's Miranda waiver was not made knowingly and intelligently. The only significant evidence to the contrary is the fact that Garner told police at the time of his interrogation that he understood his rights and the waiver, but he has introduced unrebutted expert evidence indicating that this evidence should not be given great weight. Accordingly, applying de novo habeas review, we conclude that the preponderance of the evidence shows that Garner did not knowingly and intelligently waive his Miranda rights. Thus, admission of his statement at trial was unconstitutional.

(You can see a fuller statement of the facts starting on page 12 of the linked slip opinion.)

The dissent's response -- that the inquiry ends if the police objectively reasonably believe the waiver was proper -- is unconvincing. The obvious legal response, ignored by Rogers, is that the Supreme Court has already rejected such a test. As the majority notes, the Supreme Court requires courts to look at the "age, experience, education, background, and intelligence" of the suspect to determine whether the waiver was proper. But if the test required courts only to determine whether the police were objectively acting reasonable, why would those things be relevant? Indeed, things like education, background, and experience are likely rarely to be known at the time of interrogation. It is perhaps unfortunate that in a tiny percent of cases, the police will act objectively reasonably in assuming that the defendant has waived his rights, only to have the confession thrown out later. (Given the apparent limitations of this individual, however, I do question whether the police really acted reasonably.) But lets not forget that one of the evils Miranda is protecting people against -- false confessions -- is not any less real when the police reasonably believe (falsely) that the defendant has waived his rights. In fact, with people who, by definition, are so impaired that they would have trouble knowingly and intelligently waiving their rights, the risk of false confession is probably at its highest.

I must say that several of Rogers statements are utterly absurd; here's one of my favorites: "The confession suggests that, at the time, Garner understood the consequences of committing theft and therefore had the capacity to understand the consequences of waiving his rights."
9.12.2007 1:37pm
A Northwestern Law Student:
a defense expert report based heavily on an interview with Garner in 1986
I think this should be 1996, not least because the expert did not get her Ph.D. until 1987.
9.12.2007 1:42pm
tbaugh (mail):
And what does any of this have to do with the right not to be "compelled to be a witness" against oneself? The result in this case is pretty far removed from the actual right protected by the constitution. This could make a very interesting cert petition.
9.12.2007 1:47pm
GV:
To build on my earlier point that the waiver test is not objective, I thought I would provide a fuller quote from the Supreme Court (with internal citations removed):

Miranda further recognized that after the required warnings are given the accused, "[i]f the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to retained or appointed counsel." We [noted in an earlier case] that the question whether the accused waived his rights "is not one of form, but rather whether the defendant in fact knowingly and voluntarily waived the rights delineated in the Miranda case." Thus, the determination whether statements obtained during custodial interrogation are admissible against the accused is to be made upon an inquiry into the totality of the circumstances surrounding the interrogation, to ascertain whether the accused in fact knowingly and voluntarily decided to forgo his rights to remain silent and to have the assistance of counsel.


Fare v. Michael C., 442 U.S. 707 (1979) (emphasis added).

Note that the Court requires that the defendant "in fact knowingly and voluntarily" waived his rights; not whether the police reasonably believed he knowingly and voluntarily waived his rights.
9.12.2007 1:56pm
John M. Perkins (mail):
I contend that heavy burden is a good use of emphasis.
9.12.2007 2:26pm
Kent Scheidegger (mail) (www):
The substantive issue is definitely certworthy. This takes us once again into the debate about Miranda as a prophylactic rule versus an actual constitutional right. No, Dickerson did not decide the latter.

A cert. grant on the procedural questions is less likely. On both standard of review and the nondefaultability of default, AEDPA has to be extended beyond its literal terms to be controlling.

I second John's motion on emphasis. In block quotes, you sometimes need typographic emphasis to point out the most relevant passage of someone else's writing.
9.12.2007 2:37pm
Spitzer:
Even if you think the decision faintly ridiculous, it does explore an important avenue that was opened by Atkins v Virginia.

Moreover, by my estimation there is a small but not insignificant chance that the en banc court could affirm. If it goes en banc, I can think of 5 votes affirming and 7 votes reversing. But there are 2 other judges, and it is not inconceivable that they could vote (as a bloc) to affirm - and a 7-7 en banc split would affirm the panel's decision.

Since the case would not likely be heard en banc before December, this may be a 2008-09 term SCOTUS case.
9.12.2007 2:38pm
Kent Scheidegger (mail) (www):
Does an evenly divided en banc court affirm the panel or affirm the district court? I had understood it was the district court.
9.12.2007 3:18pm
GV:
I think Kent is right. I assume that's what happens because taking the case en banc vacates the initial panel's opinion. Thus, a split en banc court (like a split Supreme Court) would result in the lower court's judgment not being reversed.
9.12.2007 3:55pm
OrinKerr:
GV,

I'm heading out of town and won't have the time this deserves until tonight or tomorrow, but I'm curious: Have you read the cases that the majority cites as being similar, and are they actually similar?

Oh, and thanks for the date correction; my apologies I had that wrong; I think the interview was in '98, 6 years after the crime, not 6 years before.
9.12.2007 4:07pm
Spitzer:
Apologies for my lack of clarity: I meant to suggest that if a judge calls for an en banc vote to decide whether to grant en banc rehearing, there may be a tie (i.e. no majority), in which case the panel's decision stands. As noted, a tie after en banc rehearing would default to the lower court's judgment.
9.12.2007 4:21pm
GV:
Orin, I assume you're referring to the cases the majority cites on pages 15 and 16 of the slip opinion. I looked through most of them. Some have worse facts than those present here. See, e.g., Garibay (defendant did not speak English very well); Cooper (defendants were young, mentally retarded boys). But some of the cases have similar facts. See, e.g., Aikens; Caldwell. I especially direct your attention to Aikens, where the court concludes:

Despite defendant's own testimony and the testimony of his mother and Dr. Moldauer, the government argues that given the defendant's age (23 years old), completion of the eleventh grade, alleged ability to read and write, and his prior experience with the criminal justice system, defendant knowingly, intelligently and voluntarily waived his Miranda rights. The Court credits the testimony of Dr. Moldauer and the defendant and finds that the defendant did not understand his constitutional rights. While defendant's practical social intelligence may enable him to do certain normal every day functions with the assistance of his family, he demonstrated both to Dr. Moldauer and to the Court that he could neither read and comprehend nor understand the Miranda rights when explained orally.

(Granted, the case was before the district court.)

Courts, in determining whether the defendant has intelligently waived his rights, primarily look at whether the defendant has had previous experience with the legal system (defendant here had none); whether the defendant had low mental capabilities (defendant was borderline mentally retarded); and whether there was uncontested expert testimony that the defendant could not intelligently waive his constitutional rights when being interrogated given his low mental capacity (check).

As an aside, all of these cases demonstrate that the dissent's opinion that there is some sort of per se rule against the finding of waiver if the cops act reasonably is absurd. Even where courts conclude that there is no waiver, they attempt to determine whether the defendant was actually capable of waiver.
9.12.2007 5:27pm
toby (mail):
To be slightly tasteless: If the guy has an IQ that makes him incapable of understanding "right" or knowing right from wrong, would killing him be any different than slaughtering a chicken for dinner? Why is even one penny wasted on this guy? For what purpose?
9.13.2007 3:26am
GV:
Wow, toby. I sure hope you don't have kids or grandparents.
9.13.2007 1:06pm