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A suspect shouldn’t have to say the magic word to conjure up his Fifth Amendment rights, the 9th Circuit ruled Wednesday. A divided three-judge panel ruled that a California man’s protection against self-incrimination was violated when police tape-recorded him against his will. Grady Arnold’s explicit statement that he didn’t want a jailhouse interview to be taped was ignored by police. State and federal trial courts and a state appeal court all said that using the tape as evidence did not violate Arnold’s Fifth Amendment rights. The 9th U.S. Circuit Court of Appeals disagreed. “Concluding that Arnold’s statement was ambiguous and unequivocal would suggest that a suspect never invokes his right to silence unless he intones some sort of talismanic phrase,” wrote Judge Myron Bright — an 8th Circuit senior judge sitting by designation — in ordering the state to “release Arnold from custody in this case, unless it grants him a new trial.” 9th Circuit Judge A. Wallace Tashima agreed with Bright, but Judge Consuelo Callahan dissented. The opinion caps a long and convoluted saga that began in 1996, when Arnold — already in jail on unrelated charges — was interviewed by police officers investigating an armed robbery. After initially waiving his Miranda rights and agreeing to answer questions, Arnold said he didn’t want to be recorded. But when interviewers turned the recorder on anyway, Arnold responded to subsequent questions with “no comment.” That tape was used against Arnold in trial in Alameda County Superior Court, where prosecutors told the jury that Arnold’s refusal to speak on tape indicated guilt. He was sentenced as a three-strike offender to 41 years to life. “The judge instructed the jury that they could use his silence against him,” said Amitai Schwartz, the Emeryville, Calif.-based defense lawyer that the 9th Circuit eventually appointed to represent Arnold. But that was only after Arnold lost at the 1st District Court of Appeal, and after the state Supreme Court denied review. Arnold — appearing pro se — then sought a writ of habeas corpus from the U.S. District Court for the Northern District of California. He was unsuccessful in front of Northern District Judge Jeremy Fogel. But in April, the 9th Circuit said Arnold could appeal on whether the trial court violated his Fifth Amendment rights. Schwartz and San Francisco attorney Elizabeth Letcher were appointed to represent him. Schwartz said the problems with admitting the tape as evidence were obvious, and she was surprised that so many courts had allowed it through. Bright seemed to agree. “The state courts unreasonably applied Fifth Amendment law as established by the Supreme Court,” he wrote. “The state courts and the federal district court essentially ignored Arnold’s unequivocal statement that he did not want to talk on tape.” In her dissent, Callahan said Arnold did not clearly invoke his Fifth Amendment rights, and that there was substantial evidence against him other than the tape. “The error, if any, in admitting the tape, was unlikely to have had a substantial and injurious effect or influence in determining the jury’s verdict,” she wrote. In its opinion, the 9th Circuit ordered the state to release Arnold from prison or for the U.S. district court to determine “a reasonable period of time” in which the state court should begin a new trial. Schwartz said Tuesday that he was happy with the decision and did not yet know whether Arnold would be released or retried. The opinion is Arnold v. Runnels.

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