9th Circuit conservatives try to tee up Miranda question for high court

A group of 9th U.S. Circuit Court of Appeals conservatives are trying to tee up a question that has been raised in the U.S. Supreme Court a few times since the original 1966 ruling: Is the failure to give a Miranda warning a constitutional violation?

The appellate court affirmed a panel ruling Thursday reversing a civil trial defeat by a hospital worker who sued Los Angeles County because prosecutors used an un-Mirandized statement against him in a criminal trial for sexual assault.

A federal judge in Los Angeles denied defendant Terence B. Tekoh's bid for an instruction that a sheriff deputy's failure to read him his Miranda rights was a violation of his Fifth Amendment constitutional right against self-incrimination.

Instead, U.S. District Judge George H. Wu told jurors Tekoh had to show the interrogation was unconstitutionally coercive under the totality of the circumstances, with the Miranda violation only one factor to be considered, according to the 9th Circuit opinion.

Tekoh was acquitted in his criminal trial.

Judge Patrick J. Bumatay, an appointee of President Donald Trump, wrote a dissent saying the watershed Miranda ruling sets forth a "prophylactic rule" but does not offer protection under the U.S. Constitution. Miranda v. Arizona, 384 U.S. 436 (1966).

"Under Supreme Court precedent, a Miranda warning is not a constitutional right, and we should have affirmed the judgment accordingly," Bumatay wrote in a dissent joined by six other 9th Circuit judges, all appointees of Republican presidents.

Eric D. Miller, another 9th Circuit Judge who was appointed by Trump, disagreed. He served on the original three-judge panel that reversed the jury verdict in favor of the county and wrote a concurrence. Tekoh v. County of Los Angeles, 2021 DJDAR 5429 (9th Cir., June 3, 2021).

Miller cited a Supreme Court decision to support the view that Miranda protects constitutional rights. Dickerson v. United States, 530 U.S. 428 (2000).

In that case, the court rejected a federal law that overruled Miranda and concluded "a confession shall be admissible in evidence if it is voluntarily given." Justice Antonin Scalia, joined by Justice Clarence Thomas, dissented.

Miller wrote that Scalia's reasoning is "compelling" but said it is not the role of appellate justices to overturn the Supreme Court. He was a member of the three-judge panel that reversed the trial outcome in January.

"As today's dissent demonstrates, one can begin with the cases treating Miranda as a prophylactic rule and reason to the conclusion that the doctrine must not be required by the Constitution," Miller wrote in Thursday's concurrence.

"But if that were so, then Congress would be able to alter it, and Dickerson would have come out the other way," he added.

John C. Burton, a Pasadena sole practitioner who represents Tekoh, said the case was "settled by [former Chief Justice William] Rehnquist 20 years ago."

"The dissenters are asking the Supreme Court to revisit Miranda and overrule Dickerson," he added.

In 2003, the Supreme Court narrowed the grounds under which suspects who are questioned without being told their Miranda rights can pursue a lawsuit. Chavez v. Martinez, 2003 DJDAR 5593 (U.S. 2003).

The justices ruled that suspects could not sue for a violation of their Miranda or Fifth Amendments rights if the statement they gave an officer was not used at trial.

Individuals could pursue a lawsuit on 14th Amendment grounds, however.

Antonio K. Kizzie, an attorney with Ivie McNeill Wyatt Purcell & Diggs APLC who represented the county, could not be reached for comment on Thursday's decision.