The en banc Ninth Circuit recently decided a very interesting Miranda case, Anderson v. Terhune, which is destined to be known as the "I plead the fifth" case. Eugene mentioned it below, and there's a chance the Supreme Court will grant cert, so I wanted to offer my thoughts on the case.

  My bottom line: The majority opinion spends 10 pages on an easy question but then gives only a short paragraph to the really hard issue. Only Judge Bea picked up what I think is the key issue in the case: Do the consequences of the initial Miranda violation include suppression of a confession made after questioning had stopped and the suspect then reinitiated the interview? The Supreme Court has never answered that. But I think the argument most consistent with the Supreme Court's cases is probably "no."

  First, the facts of the case. Anderson killed Clark, and was later brought into custody and interviewed for several hours about the crime. It's unclear if Anderson was read his Miranda rights, but it's pretty clear that at various stages of the interview he said that he wanted the interview to stop. For example, in response to the officer's statement at one point that Anderson killed Clark, Anderson says, "No, way! No, way. I — You know what, I don't even wanna talk about this no more. We can talk about it later or whatever. I don't want to talk about this no more." Later, the officer starts asking Anderson about his drug use, asking detailed questions about what kind of pipes he uses. Anderson doesn't want to talk about that, though and says, "I plead the fifth." The interview continues, until eventually Anderson asks to talk to a lawyer. At that point the interview stops. Later on, though, Anderson reinitiates the interview on his own and decides he wants to make a confession. He then confesses to killing Clark.

  The question in the case is whether the confession is admissible. The state court held that there was no Miranda violation in this case because Anderson hadn't clearly invoked his right to remain silent. Under Miranda, when a suspect states that he doesn't want to talk, the questioning is supposed to stop. According to the state court, this rule didn't matter because Anderson wasn't sufficiently clear that he wanted the interview to stop.

  Writing for the en banc Ninth Circuit, Judge McKeown concludes that this was an unreasonable application of Supreme Court Miranda law. In fact, it's actually quite clear that Anderson had asserted his right to remain silent. Therefore Miranda was violated. That holding takes up most of the majority's time, and I agree with it. The assertion of his right to remain silent was very clear and unambiguous.

  The difficulty for the majority is that Anderson's confession was not made right after he asserted his right to remain silent. Rather, Anderson later asked to speak to a lawyer, the questioning stopped, and Anderson then reinitiated questioning on his own and confessed. That raises a really interesting Miranda question that the Supreme Court has never answered: If the police violate a target's Miranda rights, and then later the target reinitiates questioning on his own and confesses, is the confession inadmissible as a fruit of the Miranda violation or is it admissible as an independently allowed statement following a valid waiver of Miranda rights?

  Judge McKeown sprints over this question at the very end, seeing it as obvious that the later confession must be excluded as a fruit of the Miranda violation. The thinking seems to be that this is the only way to really deter the government from making the initial Miranda violation:

  We cannot simply suppress the portion of the interrogation that occurred after the invocation of the right to silence and before Anderson's purported re-initiation of the interrogation. Doing so would eviscerate the mandate to "scrupulously honor[ ]" the invocation of Miranda rights. We understand the phrase "scrupulously honor" to have practical meaning. The interrogation must stop for some period of time. Although the Supreme Court has yet to tell us how long the break in questioning must last, in this case there was no cessation at all. . . . . Although deference must be given to state court determinations under AEDPA, we would be abdicating our responsibility to abide by Supreme Court precedent and to police the Constitution's boundaries were we to permit such an egregious violation of Miranda to go unchecked.

  The sentiment here is certainly commendable. At the same time, I think the Supreme Court's Miranda caselaw tends to point in the opposite direction. First, as Judge Bea points out in his dissent, the Supreme Court's decision in Oregon v. Bradshaw allowed a suspect to reinitiate questioning following his invocation of his right to counsel. That is true despite the fact that under Edwards v. Arizona, a suspect who invokes his right to counsel cannot be asked any questions at all about the crime, no matter how much time has passed, unless and until he has spoken with counsel. If a target can reinitiate questioning after invoking his right to counsel, it's not obvious to me why he can't reinitiate questioning after invoking his right to counsel when he invoked his right to counsel only after there had been a violation of his right to remain silent.

  One response might be that the confession is a fruit of the poisonous tree, and that suppression is needed to deter police misconduct. But again, the Supreme Court's cases tend to point in the other direction. In particular, Oregon v. Elstad made clear that the Fourth/Fifth/Sixth Amendment's "taint" test, the "fruit of the poisonous tree" doctrine, has no place in Miranda law. As Justice O'Connor explained in Elstad, Miranda rules are more about following the form than the substance:

If errors are made by law enforcement officers in administering the prophylactic Miranda procedures, they should not breed the same irremediable consequences as police infringement of the Fifth Amendment itself. It is an unwarranted extension of Miranda to hold that a simple failure to administer the warnings, unaccompanied by any actual coercion or other circumstances calculated to undermine the suspect's ability to exercise his free will, so taints the investigatory process that a subsequent voluntary and informed waiver is ineffective for some indeterminate period. Though Miranda requires that the unwarned admission must be suppressed, the admissibility of any subsequent statement should turn in these circumstances solely on whether it is knowingly and voluntarily made.

  Given Elstad and Bradshaw, I think Judge McKeown's conclusion that suppression of the post-warning statement is needed to give "practical meaning" to the right to remain silent sounds a bit more aspirational than grounded in Supreme Court caselaw. Maybe I'm just missing something, and I can't think of an opinion squarely rejecting Judge McKeown's view. But considered de novo, the majority's view on the remedy does seem in tension with the most relevant Supreme Court precedents.

  The question then comes down to how deferential AEDPA review changes the picture. In particular, how does the deferential review of AEDPA apply when the state court affirms a conviction on an incorrect rationale but there is an alternative reason to affirm the conviction that the state court didn't reach because it didn't have to reach it? Should the court imagine what that argument would have looked like, and then consider whether it would have been unreasonable? Or should the court apply de novo review? Off the top of my head, I'm not sure of the answer. If the court is supposed to apply de novo review, then Judge McKoewn's approach to the remedy strikes me as a possibility: deserving of much more analysis, and in tension with several cases, but a possibility. But if the remedy question deserves deferential review, then I tend to think that the majority was wrong and Judge Bea's view is correct.

  Finally, if you're wondering why the Ninth Circuit glossed over the remedy question, one possibility is that the judges doubted the officers' assertions that Anderson had reinitiated the questioning. Note how the majority describes what happened after Anderson had asserted his right to counsel, with my emphasis added:

At that juncture, an officer turned off the tape recorder and, somewhat suspiciously, following this hiatus, the officers concluded that Anderson wanted to reinitiate the discussion.

Similarly, the Court later refers to "Anderson's purported re-initiation of the interrogation" (emphasis mine). This is just speculation, of course, but the insertion of "somewhat suspiciously" and "purported" makes me wonder if the judges didn't get into the consequences of the reinitiation because they doubted it had happened. If it didn't happen, then the confession was clearly inadmissible.