(CN) - A minister's killer must be retried or released, the full 9th Circuit ruled Monday, for the second time, finding that police ignored his request for a lawyer.
"Reluctantly" dissenting, Chief Judge Alex Kozinski lamented that the case turned on "the kind of question only lawyers could love - or even understand - and perhaps not even most of them."
The federal appeals court came to the same conclusion in 2012 when it ordered California to retry or release Tio Sessoms, who is currently serving life without parole for the 1999 murder of Edward Sheriff, an associate pastor at Sacramento's Cathedral of Promise Metropolitan Community Church.
Sessoms was just 19 years old when he and two other men broke into Sheriff's home, and one of the accomplices killed Sheriff during the burglary, strangling him and stabbing him. Sessoms fled to Oklahoma where his father talked him into surrendering.
Though he followed his father's advice to ask for a lawyer before answering police questions, investigators allegedly ignored his requests and told him that having a lawyer would only make things worse.
A recording of the interrogation has Sessoms mentioning a lawyer several times about 40 seconds after officers entered the interrogation room and before they had read him his Miranda rights. A partial transcript of the interview included in the 9th Circuit's ruling shows that Sessoms at one point said: "Yeah, that's what my dad asked me to ask you guys ... uh, give me a lawyer."
The interrogators did not let Sessoms call a lawyer, however, and his subsequent admission of his role in the crime led to his convictions for murder, robbery and burglary.
Sessoms tried to get the statements suppressed, but the trial court and the California Court of Appeals refused. The state appellate court found that Sessoms' request for counsel had to be "unequivocal or unambiguous," but that his was neither. A federal habeas petition then met with dismissal in Sacramento, and a three-judge panel of the 9th Circuit later affirmed.
The federal appellate court later agreed to rehear the case before a full, 11-judge panel, which issued a divided reversal in August 2012, ordering the state to "retry Sessoms within a reasonable period, or release him."
Before this could occur, however, the U.S. Supreme Court intervened and vacated the en banc appellate court's ruling, remanding the case for reconsideration in light of Salinas v. Texas .
In that 2013 case, the Supreme Court affirmed Genovevo Salinas' murder conviction, finding that his silence during pre-Miranda questioning could be used against him at trial.
Ruling for Sessoms a second time Monday, a 7-5 majority found that he had unambiguously requested an attorney but was simply ignored by his interrogators.
Salinas does not alter the 2012 ruling because its finding that the "requirement of an unambiguous invocation of a right to counsel applies to pre-Miranda statements" does not apply to Sessoms, as he was already in custody, the majority found.
"This case, in contrast, involves a custodial interrogation in which the defendant should have been informed of his rights before he could knowingly waive them," Judge M. Margaret McKeown wrote for the majority. "With this requirement clearly in mind, we hold that, under the circumstances, a reasonable law enforcement officer would have understood Sessoms' statements as an unambiguous request for counsel, which should have cut off any further questioning under clear Supreme Court precedent."
The majority reversed denial of Sessoms' habeas petition and again remanded the case to Sacramento "with instructions to grant a conditional writ of habeas corpus with directions that the State retry Sessoms within a reasonable period or release him."
"The only reasonable interpretation of 'give me a lawyer' is that Sessoms was asking for a lawyer," the ruling states. "What more was Sessoms required to say? Was he obligated to repeat the obvious - 'give me a lawyer' - another time? It is no more reasonable to demand grammatical precision from a suspect in custody than it is to strip the officers of all common sense and understanding. To the extent the first statement spawned any uncertainty-and we believe that it did not reasonably do so - taken together the two requests leave no doubt about what Sessoms wanted: a lawyer."
Just as they did in the 2012 ruling, Kozinski and four other judges, disagreed. They argued, among other things, that the federal Antiterrorism and Effective Death Penalty Act (AEDPA) obligated the circuit to give the California Court of Appeals a higher level of deference than the majority had allowed.
Judge Kozinski said that he dissented only "reluctantly," calling the case "sad and troubling."
"There can be no doubt that Tio Sessoms meant to ask for a lawyer," Kozinski wrote. "Nor is there any doubt that detectives Woods and Keller understood exactly what he was asking for - and used their hefty leverage to divert him from that purpose. It was hardly a fair contest: a boy in his teens, held in custody and cut off from friends and family, pitted against two police detectives with decades of experience in overcoming the will of recalcitrant suspects and witnesses."
"But what we must decide is not what Sessoms meant or the officers understood, but whether it was unreasonable for the state courts to conclude that a reasonable officer would have been perplexed as to whether Sessoms was asking for an attorney," Kozinski added. "This is the kind of question only lawyers could love - or even understand - and perhaps not even most of them. I am dismayed that Sessoms's fate - whether he will spend his remaining days in prison, half a century or more caged like an animal - turns on such esoterica. But that's the standard we are bound to apply, even if we are convinced that the habeas petitioner's constitutional rights were violated."
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