[00:00:00] Speaker 02:
We'll start with our first case set for argument today, Grimes versus Phillips, case number 21-56353.

[00:00:11] Speaker 02:
And we'll hear from Mr. Ford.

[00:00:13] Speaker 04:
Thank you, Your Honors.

[00:00:14] Speaker 04:
Patrick Ford on behalf of the appellant, Christopher Grimes.

[00:00:17] Speaker 04:
I'd like to reserve three minutes, if I may, for a bottle.

[00:00:21] Speaker 04:
And may it please the court.

[00:00:23] Speaker 04:
The issue that we present this morning is whether the admission of the appellant's statements to the Perkins agent made after an invocation of the right to counsel violated the Fifth Amendment, and whether the state court was unreasonable in finding there was no violation.

[00:00:40] Speaker 04:
certainly our position that the issue is governed by Edwards versus Arizona where the Supreme Court told us that there is to be no more questioning once a suspect invokes his right to counsel.

[00:00:52] Speaker 04:
The issue was complicated by the fact that there was a Perkins operation involved which means

[00:00:57] Speaker 04:
the court in Perkins held in Illinois versus Perkins held that Miranda advocates are not required when when the police put a suspect in a cell with it with an inmate because that kind of questioning doesn't resemble the type of Coercive police dominated atmosphere that you'd have in a normal police interrogation

[00:01:21] Speaker 04:
There have been state courts that have found Roscoe is the primary case in California, which has said that even after an invocation of counsel, statements to a Perkins agent don't violate the Fifth Amendment.

[00:01:34] Speaker 04:
And I'd like to challenge that holding and make four statements, if I may.

[00:01:41] Speaker 04:
The first is that Perkins is certainly a fine case with a reasonable holding.

[00:01:45] Speaker 00:
Well, counsel, can I interrupt you for a second?

[00:01:48] Speaker 00:
Sure.

[00:01:48] Speaker 00:
Since we're reviewing this under the EDPA deferential standard, it seems as if the case, as you were describing, is a confluence of some Edwards factors and some Perkins factors.

[00:02:00] Speaker 00:
And the state court decision reflected that there isn't any clearly established Supreme Court authority on this confluence of factors.

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Doesn't that make the state's decision outside of the unreasonableness factor?

[00:02:17] Speaker 04:
I don't think so, Your Honor.

[00:02:19] Speaker 00:
Why?

[00:02:19] Speaker 04:
We believe that this is a straight Edwards issue.

[00:02:22] Speaker 04:
that that edwards is a bright line rule without exception and once somebody invokes then then there is to be no more questioning and this this is a straight edwards issue like i said it's a little bit complicated intellectually by the fact that there was a perkins agent involved but but that's the complicating factors that he did invoke but the auspices in which he was being questioned was an undercover agent in a

[00:02:49] Speaker 00:
jail cell and not in a custodial interrogation room.

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And Edwards doesn't speak to that type of circumstance.

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In that sense, Perkins is a little more apt, no?

[00:03:00] Speaker 04:
Right, right.

[00:03:01] Speaker 04:
So let me just say maybe it's best answered by looking at Orozco, the state court.

[00:03:06] Speaker 04:
Perkins didn't involve an invocation, whereas the Orozco case did.

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And so maybe it's best to look at it that way.

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There's a difference.

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In Arasco, they said, well, as the court suggests, that there is no kind of police-dominated coercive atmosphere.

[00:03:28] Speaker 04:
And for that reason, Perkins should apply.

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But our position is first that

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that Edwards controls, and at any time that there's any questioning, that that's a violation of the Fifth Amendment.

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But setting that aside, we have a better question, or better, our case is better than the previous cases.

[00:03:48] Speaker 04:
It's better than Orozco, certainly better than Perkins, because in our case, after the appellant invoked, the police continued the interrogation.

[00:03:59] Speaker 04:
So they continued a Miranda-violative interrogation, which was coercive.

[00:04:03] Speaker 04:
This was in the police-dominated

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atmosphere of a traditional interrogation and it was only after they got the appellant talking, right?

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He started talking and so obviously it was coercive.

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The coercion comes when you take somebody who was not interested in talking as this man invoked his right initially and then they do things to get him talking and they got him talking.

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Then he realized that he'd been tricked.

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The coercion worked.

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and then they put him in the cell with the Perkins agent and to finish him off, so to speak.

[00:04:36] Speaker 04:
So the case is different from the normal cases that your honor has brought up.

[00:04:44] Speaker 00:
My concern, though, is that under EDPA, we're looking at this from a legal standpoint.

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What does the clearly established law say and whether the state court decision is an unreasonable application of it?

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And if the state court is saying, and I tend to think that's right, that there is no clearly established Supreme Court authority on this particular issue that Edwards isn't controlling because there's enough difference with it, then it's hard to see how we would overcome an EDPA standard of review.

[00:05:14] Speaker 04:
Right, and Your Honor, I'd say, and it's only because I'm either naive or not very bright, but to me this is the easiest and this is the clearest example of the Supreme Court holding on point.

[00:05:26] Speaker 04:
With Edwards, it says, and it's been decided that there are no exceptions, that it's a bright line rule, and all questioning must stop, period.

[00:05:35] Speaker 03:
And the other... Can I ask you about... Of course.

[00:05:38] Speaker 03:
Because it is APA, so...

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It has to be clearly established from the Supreme Court, but it sometimes, I suppose, is helpful if the lower court has interpreted the Supreme Court that way.

[00:05:47] Speaker 03:
You mentioned that there were some state court precedents that were not helpful to you.

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Are there any state or federal lower, below the Supreme Court level, precedents that are more on point than Perkins or Edwards, in the sense that they involve somebody who has invoked their Miranda rights, invoked their right to counsel?

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like this and then had a confidential person in a jail cell question them.

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Are there any cases that go your way that are state court or federal courts of appeals?

[00:06:27] Speaker 04:
Most recently, within the last couple of weeks, there was a dissent in a California case.

[00:06:31] Speaker 03:
There was a what?

[00:06:32] Speaker 04:
There was a dissent in a California case, which I think laid it out pretty nicely.

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But the answer is that I don't know that there is a case that helps us.

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I'm guessing that that's one of the reasons why the court took this case, and we're appreciative that it did.

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But keep in mind, there is a Supreme Court statement that is directly on point, right?

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So the ruling of Perkins was that

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that Miranda requirements are not necessary.

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But the only person, one of the members of the court, Justice Brennan, said in a concurrence, not in a dissent, but in a concurrence, reminded people that, hey, in the event that we should find a situation where the appellant invokes his right to counsel, the rule that we are stating today does not apply.

[00:07:13] Speaker 04:
That would be a Fifth Amendment violation.

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Council respondent and some of the courts have noted that that's dicta, but it's the only, it's a US Supreme Court statement that's directly on point.

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And this is an opportunity for a court to say that that's, in factually and logically, it's correct.

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And especially it's correct here.

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Council suggests that, well, keep in mind Miranda is concerned with coercion and not deception, and that the typical Perkins case is about deception.

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But here we've got coercion that preceded the deception.

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That puts it in a different category than any of the cases that you're talking about.

[00:07:52] Speaker 00:
Remind me, were those statements excluded, the ones that followed the Miranda invocation?

[00:07:58] Speaker 00:
I forgot what happened with those statements.

[00:08:00] Speaker 04:
So the state court made an express finding that there was Miranda violative, that there was coercive interrogation after

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the appellant invoked.

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And that's what separates this case.

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So there are no cases, Justice Van Dyke, that hold for the facts that we have here, which is that there is coercion and then deception.

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And so we think that that's different from this is a unique case.

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And for that reason, we would ask the court to find two things, that a statement made to a Perkins agent after invocation of counsel violates the Fifth Amendment.

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But if you're not willing to hold that, then at least hold.

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that a statement made to a Perkins agent after invocation of counsel that followed coercive police activity, at the very least, that that violates the Fifth Amendment.

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And I'll reserve my time.

[00:08:47] Speaker 02:
Thank you.

[00:08:48] Speaker 02:
We'll hear from the government.

[00:08:56] Speaker 01:
Good morning, Your Honors.

[00:08:57] Speaker 01:
May it please the Court, Deputy Attorney General Herb Tatev on behalf of the respondent.

[00:09:02] Speaker 01:
As petitioner essentially concedes in his reply brief, there is no Supreme Court case that squarely addresses the issue here.

[00:09:11] Speaker 01:
The only Supreme Court case that has addressed conversations between suspects and undercover agents is Perkins, which held that it does not implicate the concerns underlying Miranda.

[00:09:25] Speaker 01:
That is because such statements are freely given and not the product of coercion.

[00:09:30] Speaker 01:
Because Perkins is the only Supreme Court case that deals with these conversations between suspects and undercover informants, the California Court of Appeals decision rejecting the Miranda claim was reasonable.

[00:09:43] Speaker 00:
Counsel, what about the argument that Perkins did not involve a pre-existing Miranda invocation or Miranda violation, as the state court found?

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We are bound by what's clearly established, but we can extrapolate from what the Supreme Court says and does as well.

[00:10:04] Speaker 00:
Why does that put us in a different context, as counsel suggests?

[00:10:08] Speaker 01:
Well, first, as the California Court of Appeal noted in its opinion, there are a number of courts that have considered the issue and concluded that even if there was a prior Miranda invocation, Perkins still applies.

[00:10:23] Speaker 01:
And the California Court of Appeal cited cases both in California and in other states.

[00:10:28] Speaker 01:
And under the AEDPA, if reasonable minds can disagree, then the claim fails.

[00:10:35] Speaker 01:
Also, I think that given the language in Perkins, Perkins explained that these sorts of conversations do not implicate the concerns underlying Miranda.

[00:10:46] Speaker 01:
So that implies that even if there is a prior Miranda violation, that does not mean that subsequent statements under these circumstances would be inadmissible.

[00:10:56] Speaker 01:
Perkins explains that Miranda is really concerned with coercion and official police interrogation.

[00:11:06] Speaker 01:
And in this case, there was a Miranda invocation and there was a violation and the state court acknowledged that.

[00:11:13] Speaker 01:
But then it went on and looked at the later statements, the statements to the undercover informant, and said, those are different.

[00:11:19] Speaker 01:
Like Perkins explained, these were voluntary.

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These were freely given.

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Under the circumstances of this conversation, the suspect was speaking very casually.

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It was clear he was not coerced or threatened.

[00:11:32] Speaker 01:
In fact, looking at the transcript of the exchange with the informant, it's the suspect himself who actually initiates the conversation about the crime.

[00:11:41] Speaker 01:
He tells the other

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the undercover informant, hey, they're trying to get me for murder.

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And then he says, I don't think the charges are gonna stick.

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It's a he said, she said.

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So there was no interrogation here within the marina of Miranda.

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So I think it's perfectly reasonable for a state court to conclude that Perkins still applies even if there's a prior Miranda invocation.

[00:12:05] Speaker 00:
Let me ask you the question that Judge Van Dyke asked your friend on the other side.

[00:12:10] Speaker 00:
Are there any court decisions that have concluded that a prior invocation of Miranda would be a Fifth Amendment violation?

[00:12:19] Speaker 01:
I believe that the state court's opinion in citing lots of cases that said there wouldn't be, may have cited a but see with the case that found there would be.

[00:12:30] Speaker 01:
But again, the fact that the cases, you know, this is an AEDPA case, and that's first and foremost here, and the fact that there could be cases going both ways shows that there's no clearly established precedent.

[00:12:43] Speaker 01:
So the decision, you know, can't be one that is wrong under the AEDPA.

[00:12:49] Speaker 01:
I think as far as Edwards, again, Edwards concerned official police interrogation.

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Once a suspect invokes his Miranda rights, the police cannot continue interrogating him.

[00:13:04] Speaker 01:
But again, Perkins explains that there's a difference between official interrogation and statements that are given unknowingly.

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And Perkins quoted Miranda, which stated itself that any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence.

[00:13:25] Speaker 01:
There were no compelling influences in the statement given to the undercover agent.

[00:13:30] Speaker 01:
As far as counsel's suggestion that it was sort of a continuation from coercion during the interrogation to the statements later, I would point out that there was about an eight-hour gap between the police interrogation of Petitioner and then having him placed in the jail cell.

[00:13:50] Speaker 01:
And once he was there, again, it was clear that this undercover agent wasn't grilling him for more answers or continuing the interrogation.

[00:14:00] Speaker 01:
the suspect was simply put in a circumstance where he could freely express, you know, what he wanted to say, and he did in fact start speaking about the crime without the undercover agent even eliciting a lot of these questions.

[00:14:15] Speaker 00:
I take it from your arguments here.

[00:14:17] Speaker 00:
Do you think there could be circumstances in which some follow-up interrogation in a jail cell might be coercive for purposes of the Fifth Amendment, but that's not this case?

[00:14:28] Speaker 01:
I'm sure there are circumstances that could theoretically arise to that case, where they would be, depending on the context of the undercover agent.

[00:14:40] Speaker 01:
I think it's important to remember that Perkins says that coercion is in the eyes of the suspect.

[00:14:46] Speaker 01:
So I suppose if the suspect

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starts to believe that this person is trying to get information from him and suspects he might be a police agent, we certainly cross the line and there can be issues there.

[00:14:59] Speaker 01:
But again, this is this is an interesting question that has not been addressed by the Supreme Court.

[00:15:04] Speaker 01:
And I believe that's the bottom line here under the DPA.

[00:15:07] Speaker 01:
If the Supreme Court has not squarely addressed the issue and provided a clear answer, then there's no relief available under the AEDPA.

[00:15:17] Speaker 01:
And the state court here was certainly reasonable and cited many other state cases that have come out the same way.

[00:15:24] Speaker 01:
And again, fair-minded jurists can disagree, and that's why the claim fails under the AEDPA.

[00:15:32] Speaker 01:
Thank you very much.

[00:15:33] Speaker 02:
Thank you, counsel.

[00:15:36] Speaker 02:
You have some time for a rebuttal.

[00:15:39] Speaker 04:
Oh, thanks.

[00:15:39] Speaker 04:
I'll be brief, Your Honors.

[00:15:41] Speaker 04:
The case here involves questioning after the invocation of the right to counsel.

[00:15:45] Speaker 04:
And Edward specifically told us there may be no questioning after the invocation of the right to counsel.

[00:15:50] Speaker 04:
That's our case.

[00:15:53] Speaker 04:
Perkins answers a very different question.

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as to whether Miranda requirements are required, Miranda advice is required when a suspect is placed in a cell with an undercover agent.

[00:16:05] Speaker 04:
That's different from the question we face here of whether after someone invokes their right to counsel, they may be questioned by an agent in the jail.

[00:16:17] Speaker 04:
count uh... justice sanchez asked whether uh... there can be coercive questioning in a jail and in this is outside the record but we certainly know from from local scandals and so forth that police have set up perkins agents that are that are

[00:16:34] Speaker 04:
uh... mexican mafia types that that their very purpose is to exact statements from from these agents from the suspects at for fear they tell him not be what they want to hear not because it's true but because because they feel like they need to to make these statements in order to stay safe this is this is that this is what that the evolution of perkins and so that certainly uh... it is a factor uh... but we would be and on the final point

[00:17:07] Speaker 04:
there was no coercive, or that there was no interrogation in the cell.

[00:17:13] Speaker 04:
And in Perkins, they say the opposite.

[00:17:17] Speaker 04:
In Perkins at 496 U.S.

[00:17:19] Speaker 04:
at pages 297 and 299, it says that the suspect was the subject of interrogation in the jail.

[00:17:27] Speaker 04:
And so it's not that they don't see it as interrogation, it's they see it as a different type of interrogation that lacks the coercive nature of other interrogation.

[00:17:36] Speaker 04:
But we had that coercive interrogation before they dropped him in.

[00:17:39] Speaker 04:
You can't coerce somebody, get him to the point that he's talking, and then drop him into a cell to finish him off and say, hey, there was nothing coercive in that situation.

[00:17:48] Speaker 04:
I mean, that's beyond deceit, and it's beyond the Constitution, unless the court has any further questions.

[00:17:56] Speaker 04:
I'll submit.

[00:17:57] Speaker 02:
Thank you counsel.

[00:17:58] Speaker 02:
Thank you to both counsel for your arguments in this case.

[00:18:01] Speaker 02:
Case is now submitted.