September 17, 2010 By Paul Wallin

California State Court Decision To Use Appellant’s Silence Against Him At Trial Violated The Fifth Amendment; Ninth Circuit Grants Habeas Petition

On August 23, 2010, the Ninth Circuit Court of Appeals granted the appellant’s habeas petition because the California Court of Appeal’s ruling that the appellant’s post-arrest silence may be used against him at trial violated the Fifth Amendment.

The petition for writ of habeas corpus arose from appellant Dale Hurd’s 1993 conviction for murdering his then-recently estranged wife. At trial, Hurd testified that his wife had visited him that day to pick up their children.  Because of his wife’s concern over Los Angeles riots after the Rodney King verdict, Hurd agreed to let his wife borrow his gun.  With his wife in front of him, Hurd stated that he loaded the gun and accidentally discharged it, killing his wife.

After Hurd’s arrest and after he agreed to police officers talk without an attorney, police officers aggressively questioned him and repeatedly insinuated that he murdered his wife.  Hurd denied their accusation and refused the officers’ insistent requests that he submit to a polygraph because he believed they were unreliable.  One officer stated that if Hurd did not submit to a polygraph, he would go to jail.

Hurd also refused the officers’ repeated requests to reenact the killing.  A police supervisor entered the interrogation room and stated that the prosecutor and the jury would not look favorably on Hurd’s refusals to submit to a polygraph or reenact the killing.

Hurd’s filed a pretrial motion to suppress his statements during the interrogation, arguing that the statements were not voluntary and were elicited after he had invoked his Fifth Amendment right to remain silent.  The motion was denied.

During the prosecution’s opening and closing arguments and throughout its case-in-chief, the prosecutor made repeated reference to Hurd’s refusal to submit to a polygraph and his refusal to reenact the crime as evidence of guilt.  After his conviction, the California Court of Appeal affirmed.  Both the California Supreme Court and United States Supreme Court denied his petitions for review.

Hurd then filed for a petition for writ of habeas corpus in federal district court.  The United States District Court for the Central District of California denied his petition for writ, and he appealed the denial to the Ninth Circuit Court of Appeals.

By federal statute, the federal circuit courts may only grant a habeas petition of a state court decision if the last reasoned state court decision was both an incorrect application of federal law, and the state court’s application of the federal law was objectively unreasonable.

The Ninth Circuit examined the line of cases beginning with Miranda v. Arizona, which held that law enforcement must inform arrestees of their right to remain silent.  The United States Supreme Court has held that, if an arrestee exercises his or her right to remain silent, the prosecution cannot present this information to the jury in a way that indicates that the defendant is guilty by refusing to talk to police.  If a person affirmatively and unequivocally states his or her desire to remain silent, then interrogation must end, but the person may refuse to answer specific questions without completely invoking his or her right to cease all further questioning.

The Ninth Circuit found that the California Court of Appeal’s interpretation of constitutional law was incorrect.  Specifically, Hurd had a right to refuse both the polygraph and the request for a reenactment, and trial prosecution’s repeated reference to those refusals as an inference of guilt violated Hurd’s constitutional right to remain silent without adverse consequences.

Furthermore, the state court’s interpretation of constitutional law was objectively unreasonable.  Hurd’s repeated, unequivocal refusal to submit to the officers’ requests was or should have been readily understood as Hurd’s exercise of his right to remain silent.  The prosecution was constitutionally barred from using Hurd’s right to remain silent against him, and the California Court of Appeal’s ruling that the prosecution did not commit constitutional error was objectively unreasonable.

In order to vacate a conviction based on the prosecution’s adverse reference to Hurd’s exercise of his right to remain silent, the constitutional error must not have been harmless, meaning that the jury must not have been influenced by the adverse reference to Hurd’s right to remain silent.  The Ninth Circuit found that, because the prosecution emphasized Hurd’s refusals as a valid inference of guilt throughout trial, the error was not harmless.  Additionally, Hurd’s narrative of events was not contradicted by the evidence, so a jury may reasonably be influenced by the prosecution’s adverse inferences in finding Hurd guilty.

Because the state court’s application of federal law was incorrect and unreasonable, and the constitutional error was not harmless, the Ninth Circuit granted Hurd’s petition and ordered him released, unless the prosecution wished to retry him.

If you have exhausted your appeals in California state court, you may still have legal options available to you in federal court. When you are facing such a legal situation, contact the experienced Southern California appellate attorneys at Wallin & Klarich.  We have over 40 years experience in the appeals process, including filing petitions for writ of habeas corpus and other extraordinary remedies.  Call us today at (888) 280-6839. We will be there when you call.

AUTHOR: Paul Wallin

Paul Wallin is one of the most highly respected attorneys in Southern California. His vast experience, zealous advocacy for his clients and extensive knowledge of many areas of the law make Mr. Wallin a premiere Southern California attorney. Mr. Wallin founded Wallin & Klarich in 1981. As the senior partner of Wallin & Klarich, Mr. Wallin has been successfully representing clients for more than 30 years. Clients come to him for help in matters involving assault and battery, drug crimes, juvenile crimes, theft, manslaughter, sex offenses, murder, violent crimes, misdemeanors and felonies. Mr. Wallin also helps clients with family law matters such as divorce and child custody.

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