Constitutional Law

9th Circuit: By Telling Cops of Dad's Advice to Get a Lawyer, Suspect Didn't Actually Ask for Lawyer

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Tio Dinero Sessoms was recorded on video when, after being arrested in 1999, he told Sacramento homicide detectives that his dad “asked me to ask you guys–uh, get me a lawyer.”

But a California court had an adequate basis for deciding that Sessoms’ relaying to police of his father’s advice wasn’t the same as actually asking for counsel for himself, a divided panel of the 9th U.S. Circuit Court of Appeals ruled last week. It hence upheld the use in evidence of Sessoms’ subsequent post-Miranda admissions to authorities and denied his habeas corpus petition concerning his felony-murder conviction.

“Upon first impression, these determinations may seem harsh—a bare reading of the black-and-white transcript does raise a close question as to whether Sessoms legally invoked his right to counsel,” says the two-judge majority in the panel’s written opinion (PDF).

“However, Sessoms simply cannot demonstrate the requisite … unreasonableness—especially when the conversation between Sessoms and the detectives is colored with tone, inflection, body language, and the infinite other minute qualities of demeanor and affect that cannot be ascertained from words alone, but are plainly apparent on the videotape evidence of what transpired.”

A dissenting opinion calls the majority’s okay of the state court’s conclusion that Sessoms at no point unequivocally asserted his right to counsel “indefensible.” Sessoms immediately brought up the attorney issue when he first spoke with detectives, politely asking if he could have a lawyer and relaying his father’s admonition to ask for one, it points out.

Rather than reading these sentences together, the majority weakens them and changes their clear meaning by breaking them apart, the dissent says. “[T]he contrary holding, endorsed by the majority, is an unreasonable application of federal law. It eviscerates the Fifth Amendment and the meaningful protections that Miranda affords.”

Sessoms is represented in the appeal by Eric Weaver, who tells the San Francisco Chronicle that he intends to seek an en banc hearing of the full 9th Circuit appeals court.

Looking at the video himself, he says, “it seems pretty clear that Mr. Sessoms was asking for an attorney.”

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