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The Federal Court Saves a Person from California State Courts AGAIN

We have another in a growing number of cases where the federal courts need to reverse California appellate opinions that have sided with power and against liberty. People who do not live here, and some naïve ones who do, erroneously believe that California is the epitome of the land of the free and the home of the brave, but our courts are far more anti-liberty than people would believe, and a recent Miranda case exemplifies that horrid reality.

As we learned from Nancy Reagan [in a different setting but true for many], “Just say ‘no.'” Unfortunately, the government frequently will not honor that answer when their agenda dictates they press beyond it, and such was the reality with the recent Miranda case.

In the December case of Garcia v. Long (9th Cir. 2015) ___ Fed.3d ___ [No. 13-57071], the court gives the following procedural facts:

Francisco Alaniz Garcia was brought into the police station for questioning about allegations that he had sexually molested his granddaughter. After reading Garcia his Miranda rights and confirming that Garcia understood those rights, the interrogating officer asked, "now having [those rights] in mind, do you wish to talk to me?" Garcia responded with a simple "no." The Supreme Court in Miranda v. Arizona said that when a suspect "indicates in any manner . . . that he wishes to remain silent, the interrogation must cease." 384 U.S. 436, 473-74, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966). The officer did not cease, and he continued questioning Garcia and ultimately obtained a confession. At his subsequent trial, the court, over Garcia's objection, allowed the prosecution to play the three-and-a-half-hour confession tape to the jury.

The California Court of Appeal determined that Garcia's "no" response was ambiguous and equivocal in light of other statements Garcia made during the interview and accordingly rejected Garcia's Miranda claim. The Court of Appeal also concluded that, even if erroneous, the playing of Garcia's confession was harmless beyond a reasonable doubt.

We hold that any reasonable jurist would have to conclude that "no" meant "no." The Court of Appeal's decision is both contrary to and an unreasonable application of clearly established Supreme Court law, and it is based on an unreasonable determination of the facts. Further, the trial court's error was not harmless. We affirm the district court's judgment granting the writ of habeas corpus.

It took the Ninth Circuit to reaffirm an understanding that has been around for eons that “no” means…, well, “no.”

It is utterly obscene that the California courts, trial and appellate, play shameless games with constitutional issues to pander to their governmental patrons which results in people's liberties being eviscerated. The courts were not set up to ratify executive demands – if executive demands were to be the rule over and about liberty in this Republic, we would not need courts.

The California courts, and their police pals, who were responsible for this constitutional outrage should not only hang their heads in shame, but they should also resign their positions and work in some area of penance for the rest of their lives.

This calls to mind a quote by Ninth Circuit Judge Wardlaw, in another settings and case but fully apt here: “"I understand why they do that; they are elected judges and they are not going to be reversing things. …. It condones it [governmental misconduct] by not reversing the conviction on that basis….”

These facts are from a 2007 incident; it took eight years for this defendant to receive what was his due under the Constitution. The trial court ruled against him; the California court of appeal ruled against him, saying, in essence, “we don't know what ‘no' really means.” The state supreme court would not even hear the matter. Then the federal district court got involved and granted a habeas writ, which the state appealed [by an attorney general who wants to be elected Senator]! The Ninth Circuit, on appeal, upheld the district court habeas writ.

This sort of juristic terrorism is far more sinister and damaging that the armed thuggery so often seen in the news, because it proceeds under color of law and is enveloped in self-righteousness. But these terrorists deserve the same level of disgust and hate and outrage that we feel toward the armed thugs preaching faux Islam through the barrel of a gun. Faux constitutionalism is not what the Framing was all about.

Michael Kennedy

Admitted to Bar, State of California, 1981 Education: Widener University, Chester, Pennsylvania (B.A., 1970) Southwestern University School of Law, Los Angeles, California (J.D., Scale, 1981) Harvard Law School, Program of Instruction for Lawyers, Cambridge, 1987


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