COUNSELOR'S CORNER:

It’s been a good year or so since I have written a column pertaining to someone who was arrested and then tried to invoke his 5th Amendment right to remain silent. I’m sure you are all familiar with this from television, commonly known as one’s Miranda rights.

I always advise my clients that if they are ever arrested, there is a reason they are given this right to remain silent, and they should exercise this right.

In columns in which I have addressed this issue in the past, the story generally involves someone trying to invoke his or her 5th Amendment right to remain silent, and the question becomes whether the invocation of the right was clear enough to ward off further police questioning or whether some ambiguity in the request for 5th Amendment protection allowed the police officers to keep on questioning the individual.

This is the matter of Jerome Anderson, who was convicted in 1997 of murdering his friend (I guess former friend would be more accurate) Robert Clark.

Anderson allegedly shot Clark four times in the head. This took place in Shasta County, Calif.

Anderson confessed and was subsequently convicted and sentenced to life in prison without the possibility of parole.

The key evidence in this case is Anderson’s confession.

So now we come to the interrogation that led to the confession. It apparently lasted longer than three hours, and during the three-hour-plus period of time, Anderson tried to stop the questioning by saying “I plead the 5th.”

The officer doing the questioning responded: “Plead the 5th? What’s that?”

Well, the Ninth U.S. Circuit Court of Appeals overturned Anderson’s murder conviction earlier this month.

Judge M. Margaret McKeown wrote for the majority, which voted 12 to 3 in favor of reversal.

McKeown wrote “it is rare for the courts to see such a pristine invocation of the 5th Amendment and extraordinary to see such flagrant disregard of the right to remain silent.”

I couldn’t have said it better myself.

Believe it or not, this was the first ruling in Anderson’s favor in this case. The trial court let the confession come in and then the Third District Court of Appeal of the State of California upheld the confession, giving its view that Anderson’s statement about his right to remain silent was not clear.

One of the three U.S. Circuit Court of Appeals judges who would have sustained the conviction is Judge Richard Tallman, who stated that the manner in which the trial judge interpreted the confession should stand. Tallman stated: “admittedly, the detective could have phrased his clarifying question differently, and perhaps he should have uttered it with less sarcasm, but a poorly phrased question without more is not grounds to [overturn the verdict].”

Are you kidding me? Why should the detective have asked anything at that point? What needed clarification? What can be clearer than someone stating “I plead the 5th.”

Did he think that Anderson was referring to his fifth finger? His fifth toe?

As McKeown stated, how could it be any clearer? McKeown wrote: “It doesn’t take a trained linguist, a PhD or a lawyer to know what he means.”

Would you believe that this result has been 10 years in the making? As I mentioned earlier, the other courts ruling in this case all felt that the confession should come in.

Only 10 years after this conviction did a court get it right when the Ninth U.S. Circuit Court of Appeals decided the confession should be excluded from evidence.

So, the ball is now back in the court of the Shasta County District Attorney’s Office as prosecutors there must decide whether to retry Anderson.

Of course if they do, they won’t have the confession available, so their work will clearly be cut out for them.


 CHARLES J. UNGER is a criminal defense attorney in the Glendale law firm of Flanagan, Unger & Grover, and a therapist at the Foothill Centre for Personal and Family Growth. He may be reached at (818) 244-8694 or at www.charlieunger.com.

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