Tuesday, December 02, 2008

The Fifth and Sixth Amendments Live to Fight Another Day

In Thompkins v. Berghuis, Case No. 06-2435, the Sixth Circuit granted habeas relief due to violations of defendant Thompkins’ rights under the Fifth and Sixth Amendments. At the state trial level, Thompkins moved to suppress statements he made during his post-arrest interrogation. The interrogating officer testified he questioned Thompkins for approximately three hours and that he read Thompkins his Miranda rights. Thompkins was alleged to have orally confirmed his understanding of his Miranda rights but refused to sign the form acknowledging those rights. The interrogating officer admitted that, during the first two hours and forty-five minutes of the interrogation, Thompkins consistently exercised his right to remain silent, but claimed he understood Thompkins’ conduct in making eye contact, making a nod of his head, looking up, and sporadically stating "yeah," "no," and "I don’t know" as engaging in limited conversation.

The panel found the state court’s determination that Thompkins’ participation during the interrogation demonstrated voluntary waiver of his right to remain silent was objectively unreasonable. The panel also found the state court’s determination unreasonably applied federal law because the complete lack of context regarding Thomkins’ alleged head nod, sporadic speech, and eye contact did not permit a finding of waiver. The panel further found there was no implied waiver because there was no evidence of a two-way conversation between Thomkins’ and the interrogating officer. The panel concluded Thompkins’ only message to the interrogating officer was that he did not wish to waive his right to remain silent.

The panel also concluded Thomkins’ was also entitled to relief on his ineffective-assistance-of-counsel claim. At trial, the prosecution introduced the testimony of a separately tried co-defendant who was acquitted of the shooting charges at issue in Thompkins’ case but convicted of weapons-related charges. Thomkins’ trial counsel did not request a jury instruction that informed the jury it could use the evidence of the co-defendant’s acquittal only to assess the co-defendant’s credibility. The panel held Thomkins’ trial counsel was ineffective for failing to request a limiting instruction. The panel also held Thompkins was prejudiced by his counsel’s failure as the "central strategy at trial involved pinning the blame on [the co-defendant]." Because the jury heard evidence, from "multiple witnesses," that the co-defendant was acquitted, evidence of the co-defendant’s acquittal likely exerted a powerful influence on the jury to convict Thompkins.

In its holding, the panel was careful to correct the district court’s application of Strickland. The panel made clear the prejudice component of Strickland should not have been tied to the underlying purpose or the intent of the prosecutor in introducing the evidence. Rather, the prejudice component is tied to error’s effect on the outcome.

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