Habeas Erosion: It's Not Just for Military Detainees Anymore

The Ninth Circuit recently upheld the denial of a habeas petition against a truly asinine factual background. When the petitioner was arrested and interrogation began, he said to the arresting officer: "I plead the Fifth." The officer replied "Plead the Fifth. What's that?" and continued the interrogation. The state court rejected the petitioner's claim that he was denied his Fifth Amendment right against self-incrimination when the officers failed to stop the questioning when the petitioner asserted his right.

The District Court denied the habeas petition, and the Ninth Circuit upheld the denial. The Ninth Circuit opinion was written by the larger-than-life Judge Alex Kozinski, who has a large army of cultish admirers among the legal profession. Judge McKeown dissented.

Hopefully realizing that any reasonable officer would know what "I plead the Fifth means, Kozinski justified his absurd result by citing to the deference requirements in AEDPA. Kozinski acknowledged that, but for AEDPA, he "might be writing a very different opinion."

Assuming we can take Lord Kozinski at his word, this is a disturbing example of how habeas protection is being eroded out of existence by federal statute. But as the dissent says, it's difficult to see how any level of deference can justify upholding the state court on these facts.

Boo, Judge Kozinski.