Opposition Brief — Cate v. Anderson (No. 07-1436)

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W FILED

No. 07-1436

AUG 15 2008

OFFICE OF THE CLERK

SUPREME COURT, U.S.

Sn The

Supreme Court of the Anited States

JAMES A. TILTON, Secretary, California

Department of Corrections and Rehabilitation,

Petitioner,

JEROME ALVIN ANDERSON,

Respondent.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

BRIEF IN OPPOSITION

CHARLES M. BONNEAU

331 J Street, Suite 200

Sacramento, California 95814

(916) 444-8828

Attorney for Respondent

COCKLE LAW GRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

TABLE OF CONTENTS

INTRODUCTION

ARGUMENT

NO SIGNIFICANT CONSTITUTIONAL

ISSUE IS RAISED CONCERNING

WHETHER RESPONDENT INVOKED

HIS RIGHT TO SILENCE

THE STATE’S PROPOSAL TO EXCUSE

UNLAWFUL POLICE INTERROGATION,

ON THE BASIS THAT IT LATER RE-

SULTED IN A WAIVER AND A CONFES-

SION, WOULD TURN THE MIRANDA

RULE ON ITS HEAD AND UNDERMINE

RESPECT FOR THE LAW

CONCLUSION

TABLE OF AUTHORITIES

FEDERAL CASES

Abdul-Kabir v. Quaterman, 127 S.Ct. 1654

(2007)

Davis v. United States, 512 U.S. 452 (1992)

Early v. Packer, 537 U.S. 3 (2002)

Edwards v. Arizona, 451 U.S. 477 (1981)

Holland v. Jackson, 542 U.S. 649 (2004)..................... s

Lockyer v. Andrade, 538 U.S. 63 (2003)

Magnum Import Co. v. Coty, 262 U.S. 159

Michigan v. Mosley, 423 U.S. 16 (1975)............... 6, 3,9

Miranda v. Arizona, 384 U.S. 486 (1966) passim

Missouri v. Seibert, 542 U.S. 600 (2004)

Panetti v. Quaterman, 127 S.Ct. 2842 (2007)

Smith v. Illinois, 469 U.S. 91 (1984)

Williams v. Taylor, 529 U.S. 362 (2003).................:s08 4

Woodford v. Viscotti, 587 U.S. 19 (2002)

Yarborough v. Alvarado, 541 U.S. 652 (2004)

FEDERAL STATUTES

I ss sionanainvandansucusessousaner 2.4

The Court has requested a Brief in Opposition to

the Petition for Writ of Certiorari filed by the State of

California on May 15, 2008. Respondent asks that

certiorari review be denied.

INTRODUCTION

There are no compelling reasons to grant certio-

rari review in this case. The jurisdiction of the Su-

preme Court to review cases by way of certiorari was

not conferred merely to give the defeated party in the

Circuit Court of Appeals another hearing. Magnum

Import Co. v. Coty, 262 U.S. 159, 163 (1923). The

Petition offered by the State of California fails to

identify a conflict between circuit decisions or state

courts, and fails to identify an important question of

federal law that has not been decided by this Court.

See Rule 10, Supreme Court Rules.

Petitioner’s first argument claims that the circuit

decision failed to provide sufficient deference to the

state court decision. Here, the Petition preserts no

compelling or controversial issues. The standard for

federal court review under the Anti-Terrorism and

Effective Death Penalty Act (AEDPA) has been before

this Court numerous times, several times in the last

term. Petitioner proposes no new insight or reformu-

lation of this Court’s established procedures for

AEDPA review.

The twelve-member majority of the en banc panel

here gave the state court judgment more than sufficient

deference. The conclusion that the state court contra-

vened this Court’s clearly established precedent, and

that its opinion resulted in an unreasonable determina-

tion of the facts, see 28 U.S.C. § 2254(d)(1), is not

remarkable. Petitioner merely wants to re-argue the

case. There is no issue here which merits review by

this Court. See discussion below.

As to Petitioner’s second argument, the Petition

suffers from the opposite weakness. Based on an

argument advanced for the first time in a single

dissenting opinion to the en banc decision, Petitioner

proposes that the effect of a Miranda’ violation be

excused if the violation ultimately forces a waiver and

confession. According to this novel proposal, police

would be permitted to continue interrogation indefi-

nitely after the assertion of the defendant’s right to

remain silent (here, roughly an hour) in hopes that

the defendant will cave in to pressure and waive his

right to remain silent. So long as there is some break

in the questioning (here, less than one second’), the

' Miranda v. Arizona, 384 U.S. 436 (1966).

* See the opinion of the state court of appeal, App. D at 21,

n. 4: “The officer running the tape recorder testified the recorder

was only off for a second, and the only person speaking during

the pause was defendant.” See testimony of Detective O’Connor,

in a pretrial hearing in state superior court, 1 R.T. 227-228: “I

was under the impression the interview was stopped right then.

So I shut of the tape .. . (HJe kept talking. So, you're talking less

than a second.”

According to the dissent of Judge Bea, “It is unclear how

Jong the interrogation was stopped after Anderson requested an

attorney, and before Anderson asked to speak with Lt. Bishop.

(Continued on following page)

resulting rights waiver would cure all the illegal

conduct that had gone before.

This novelty would create a terrible rule. It

would eliminate the hard-won certainty which has

accrued to the Miranda rule over decades, and it

would create uncertainty over whether Miranda is

meant to be an enforceable rule at all. It would en-

courage bullying tactics by the police. Its only certain

effect would be to encourage lawless experimentation

by the very forces that are sworn to uphold the law.

The Court should not dignify this proposal by a grant

of certiorari review. See discussion below.

ARGUMENT

NO SIGNIFICANT CONSTITUTIONAL ISSUE

IS RAISED CONCERNING WHETHER RE-

SPONDENT INVOKED HIS RIGHT TO SI-

LENCE.

The en banc Circuit Court of Appeals, by an

overwhelming majority, found that the state court

decisions permitting the use of Respondent’s confes-

sion were unreasonable, and violated this Court’s

clearly established precedents.

The Circuit Court analysis closely tracks this

Court’s precedents. This Court has taken advantage

The record implies it did not appear to be a long period of time.”

App. A 38. At best, this is an understatement.

of multiple opportunities to apply the language of 28

U.S.C. § 2254(d), including the proviso that federal

relief may only be granted where a prior state court

adjudication resulted in a decision that was “contrary

to,” or involved an “unreasonable application of,”

clearly established federal law as determined by this

Court, or which resulted in a decision that was based

on an “unreasonable determination” of the facts in

light of the evidence. See Williams v. Taylor, 529 U.S.

362, 411 (2003), Lockyer v. Andrade, 538 U.S. 63, 76

(2003), Yarborough v. Alvarado, 541 U.S. 652 (2004),

Abdul-Kabir v. Quaterman, 127 S.Ct. 1654, 1671

(2007), and Panetti v. Quaterman, 127 S.Ct. 2842,

2858-2859 (2007).

As stated by the Court of Appeals, “Nothing was

> ae > J

ambiguous about the statement ‘I plead the Fifth.

App. A at 16.° The state court decision was unreason-

able, because “the officer’s comment showed that the

interrogating officers did not believe that Anderson’s

statement was ambiguous.” App. A at 20.

Petitioner reminds the Court that the context —

the circumstances leading up to the invocation — must

be considered in determining what the defendant

meant by his apparent invocation. Pet. at 15. But it is

precisely the context of the interrogation which

makes the invocation so unequivocal, and the con-

tinuing interrogation such a blatant disregard of this

" “App.” refers to page citations to the Appendix to the

Petition for Writ of Certiorari.

Court's Miranda rule. Respondent’s affirmation “I

plead the Fifth” was only the culmination of a series

of efforts to terminate the interrogation.’

“ The Circuit Court considered the complete transcript of

the entire taped interrogation as part of the record in this

appeal. App. A at 9, n. 2. The transcript is 167 pages in length.

The total interview was about three hours. Although there are

some interruptions, the page numbers provide a rough idea of

where the words appear in relation to the total interrogation.

“TO” refers to sheriff’s detective Tom O’Connor. “JA” refers to

Respondent Jerome Anderson.

At page 61: 11-14, the defendant asks to be “taken upstairs,”

i.e. out of the interrogation room and into the general jail

population on his parole violation. “TO: You know, exactly what

I'm talking about.” [4 “JA: No, I don’t, if you’re insinuating — No

way, no way. Can I — Can | go ahead go upstairs, or whatever?”

(qj “lO: We want to get this thing straightened out... ” [4|] “JA:

So, do I.”

Again, at page 75: 4: “JA: Can I go ahead an’ go up there, an’

go lay down or whatever.” [4] “TO: No, just, ... I wonder... You

smoke Camels, right?”

At page 78: 12-18, as the interrogators accused Respondent

directly of the murder: “TO: You act like you’re cryin’ like a baby,

an’ you can’t cry for someone that was a no good ... an’ you

killed him for a good reason.” [{j| “JA: No, way! No, way. I — you

know what, | don’t even wanna talk about this no more. We can

talk about it later or whatever. I don’t want to talk about this no

more. That’s wrong. That’s wrong.”

{Up to this point the interrogators had not mentioned drug

usage. Since Respondent was trying to stop an interrogation

which had only one subject and one focus, the Court of Appeals

was entirely correct to conclude that there was no ambiguity in

the invocation, App. A at 17, 20. See also Judge Bea’s opinion,

App. A at 30-31, which also concluded that the invocation was

not ambiguous. The state is entirely wrong to suggest that there

is a perceived ambiguity. See Pet. at 15-16. |

(Continued on following page)

The state court’s reliance on the defendant’s

continued interplay with the interrogators as a

reason to whitewash the officers’ disregard of the

Miranda invocation was “contrary to” United States

Supreme Court precedent, clearly expressed in

Miranda v. Arizona, supra, and in Michigan uv.

Mosley, 423 U.S. 16 (1975). App. A at 16, n. 3. Here

too, the Circuit Court’s analysis was in congruity with

this Court’s established precedent. See Early uv.

Packer, 537 U.S. 3, 11 (2002) and Woodford v. Viscotti,

537 U.S. 19, 27 (2002).

Petitioner offers no reason to reconsider the

established procedures. of this Court in dealing with

federal court review of AEDPA claims. The conclusion

of the Circuit Court was unremarkable and does not

merit further review.

At page 79: 7-12 the interrogation focused on the metham-

phetamine pipe that was found at the crime scene. “TO: Well,

what kind of pipes?” ({] “Uh! I’m through with this. I’m through.

I wanna be taken in custody, with my parole ” (9) “TO: Well,

you already are. | wanna know what kinda pipes you have?” [4j)

“JA: I plead the fifth.” {9] “TO: Plead the fifth. What’s that?”

The invocation which was briefly honored by the detectives

appears at page 119, followed by another waiver and the confes-

sion

Il. THE STATE’S PROPOSAL TO EXCUSE

UNLAWFUL POLICE INTERROGATION,

ON THE BASIS THAT IT LATER RE-

SULTED IN A WAIVER AND A CONFES-

SION, WOULD TURN THE MIRANDA

RULE ON ITS HEAD AND UNDERMINE

RESPECT FOR THE LAW.

Purportedly, the state merely proposes a rule

that a break in interrogation (even one of microscopic

proportions) wipes the slate clean of prior misconduct

and permits the use of a confession obtained after the

break in interrogation. In reality, the present case

involves a blatant violation of the defendant’s ex-

pressed wish to remain silent (“I plead the Fifth.”),

uttered almost an hour before any break in interroga-

tion. Therefore the proposed rule, though focusing on

the break in interrogation, in actuality is nothing but

a stratagem for obscuring the earlier police miscon-

duct. The proposed rule would not only undermine

legal protections against the use of involuntary

confessions, it would foster disrespect for the law by

endorsing a stratagem to avoid the legitimate asser-

tion of a constitutional right.

Preliminarily, Respondent notes that Petitioner’s

argument is taken wholly from the opinion of Judge

Bea, dissenting from the en banc majority. App. A at

30-39. The argument was first proposed by Judge

Bea; one may search the prior state and federal

opinions and the prior briefing in vain for any refer-

ence to it. Had this been an issue in the state superior

court, the defendant could have confronted it; he

would certainly have asked pointed questions to the

interrogating officers, including whether the police

tactic was a deliberate effort to subvert Miranda. But

the state never proposed this argument at any level

prior to this very late stage of the proceedings.

In applying the AEDPA this Court has cautioned

that prior state court opinions must be reviewed

carefully, to determine the reasoning that actually

governed them. See Holland v. Jackson, 542 U.S. 649,

654-655 (2004) (per curiam); Woodford v. Visciottt, 537

U.S. 19, 23-24 (2002) (per curiam). Since the later-

interruption argument was not relied upon by the

state court, and was not advanced by the state in

support of the state court judgment until it joined

Judge Bea’s proposal, it should not be addressed by

this Court at this late stage.

This Court has not forbidden all police interroga-

tions, forever and on any subject, following a valid

Miranda assertion. But the interrogation must cease.

Thereafter, “the admissibility of statements obtained

after the person in custody has decided to remain

silent depends under Miranda on whether his ‘right

to cut off questioning’ was ‘scrupulously honored.’”

Michigan v. Mosley, supra, 423 U.S. at 104. Here, the

right to remain silent was not honored.

Respondent was subjected to uninterrupted

interrogation for almost an jour after his invocation

of the right to remain silent. The proscription on

resumed interrogation is not indefinite. Michigan v

Mosley, supra, at 102-103. But the invocation must be

honored by an immediate interruption in the interro-

gation. Here the interrogation was not interrupted at

all, and that cannot be permitted.

When an accused has invoked his right to have

counsel present during custodial interrogation, “a

valid waiver of that right cannot be established by

showing only that he responded to further police-

initiated custodial interrogation even if he has been

advised of his rights.” Edwards v. Arizona, 451 U.S.

477, 484-485 (1981) (emphasis added). An accused

who has expressed his wish to remain silent is not

subject to further interrogation, “unless the accused

himself initiates further communication, exchanges,

or conversations with the police.” Jbid. Mr. Anderson’s

invocation here was followed directly by an hour of

police-initiated custodial interrogation, in total disre-

gard for the invocation and for this Court’s clearly-

stated law on such interrogations. Michigan ov.

Mosley, supra.

What occurred an hour later — an interruption

(brief or long), another advisement, a waiver, a con-

fession, or none of these — is beside the point. The

continued interrogation was illegal, and the conse-

quence is exclusion of the result of the interrogation,

whatever it may have been. The necessary exclusion

of evidence here is not a new or unanticipated appli-

cation of Miranda, but an unremarkable application

of well-settled rules.

The Edwards rule provides a “bright line” rule

that can be applied by officers in the real world of

investigation and interrogation without unduly

hampering the gathering of information. Davis v.

United States, 512 U.S. 452, 460 (1992). The officers

here, or in any similar situation, are not “left to

wonder” what to do under current law. Pet. at 14.

That necessary goal — predictability and ready appli-

cation in the real world — would be defeated under

the changes proposed by Petitioner.

Under Petitioner’s proposed rule, an interrogator

would be tempted — nay, invited — to continue ques-

tioning even after a valid invocation.’ Under Peti-

tioner’s blueprint the officer would only interrupt the

interrogation, briefly and long after the invocation, at

the precise point where the suspect seems most

vulnerable and ready to cave in to the uninterrupted

illegal questioning. Predictably, the suspect, now

desperate, may himself initiate a further conversa-

tion. From the interrogator’s standpoint, it would be

worth taking the chance, in the expectation that the

officer’s earlier misconduct would be cleansed in

retrospect by the very extension of the illegal interro-

gation. Just as for Hera bathing in the spring of

Kanathos, the earlier violation would be forgotten.

This new rule would be a variation on the theme of

“questioning outside Miranda,” noted and condemned by this

Court in Missouri v. Seibert, 542 U.S. 600, 610, n. 2 (2004)

" Cf. Article “Kanathos,” in Wikipedia, http://www

wikipedia.org, and sources there cited

This Court has already rejected such a blueprint

for chaos. “‘No authority, and no logic, permits the

interrogator to proceed . .. on his own terms and as if

the defendant had requested nothing, in the hope

that the defendant might be induced to say some-

thing casting retrospective doubt on his initial state-

ment that he wished to speak through an attorney or

not at all.’ [citation].” Smith v. Illinois, 469 U.S. 91,

99 (1984). Petitioner offers no good reason, or any

reason at all, to overturn so much of this Court’s

authority. Petitioner certainly offers no reason to

create, in place of this Court’s authority, such law-

lessness and uncertainty.

CONCLUSION

For the reasons stated, the Petition fails to state

sufficient grounds for review by this Court, and

should be denied.

Dated: August 15, 2008

Respectfully submitted,

CHARLES M. BONNEAU

331 J Street, Suite 200

Sacramento, California 95814

(916) 444-8828

Attorney for Respondent

| Supreme Count US

FILED

No. 07-1436 SEP -4 - 2008

LERK j

In the Supreme Court of the United States

JAMES A. TILTON, SECRETARY, CALIFORNIA

DEPARTMENT OF CORRECTIONS AND

REHABILITATION, Petitioner,

JEROME ALVIN ANDERSON, Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

REPLY BRIEF

EDMUND G. BROWN JR.

Attorney General of California

DANE R. GILLETTE

Chief Assistant Attorney General

MANUEL M. MEDEIROS

State Solicitor General

MICHAEL P. FARRELL

Senior Assistant Attorney Generai

DONALD E. DE NICOLA

Deputy State Solicitor General

RACHELLE A. NEWCOMB

Deputy Attorney General

STEPHEN G. HERNDON

Supervising Deputy Attorney General

Counsel of Record

1300 I Street, Suite 125

P.O. Box 944255

Sacramento, CA 94244-2550

Telephone: (916) 327-0350

Fax: (916) 324-2960

Counsel for Petitioner

TABLE OF CONTENTS

CERTIORARI IS WARRANTED TO

VINDICATE THE HABEAS

CORPUS REFORMS CONGRESS

ENACTED IN AEDPA AND TO

PROVIDE PRACTICAL GUIDANCE

TO LAW ENFORCEMENT

Page

TABLE OF AUTHORITIES

Cases

Carey v. Musladin,

549 U.S. 70 (2005)

Davis v. United States,

512 U.S. 452 (1994)

Lebron v. National R.R. Passenger Corp..,

513 U.S. 374 (1995)

Miranda v. Arizona,

384 U.S. 486 (1966)

Missouri v. Seibert,

542 U.S. 600 (2004)

Oregon v. Elstad,

470 U.S. 298 (1985)

People v. Rundle,

43 Cai.4th 76 (2008)

People v. Stitely,

35 Cal.4th 514 (2005)

Virginia Bankshares, Inc. v. Sandberg,

501 U.S. 1083 (1991)

CERTIORARI IS WARRANTED TO

VINDICATE THE HABEAS CORPUS

REFORMS CONGRESS ENACTED IN

AEDPA AND TO PROVIDE PRACTICAL

GUIDANCE TO LAW ENFORCEMENT

Anderson first argues that review is unwarranted

because, he says, this case presents nothing new of

constitutional significance (Opp. pp. 1, 3-7). But this

Court has recognized in past grants of certiorari that

questions of the proper application of AEDPA are

important. And this case involves not only that but also

a question of this Court’s Miranda jurisprudence.

1. Here, two state courts expressly found Anderson’s

“I plead the fifth” statement ambiguous in context and

the officers’ attempt to clarify proper. The federal

district court, applying the AEDPA deference standard,

found these state court determinations reasonable. Two

judges on the initial Ninth Circuit panel determined

that the state courts’ findings on ambiguity and

clarification were reasonable determinations of fact and

thai the state courts had not unreasonably anplied

clearly established federal law. On the en banc panel,

two judges (Judges Tallman and Callahan) agreed, and

two other judges (Judges Silverman and Rawlinson)

agreed on the ambiguity question. This case is not

unremarkable: it represents a significant violation of

AEDPA.

The Miranda point, moreover, is of immense concern

to law enforcement. Although this Court in Miranda v.

Arizona, 384 US. 436, 473-74 (1966), recognized that

police must stop questioning if a suspect indicates “in

any manner” that he wants to cut off questioning, this

Court has not delineated what is further required.

Moreover, there is noclearly established precedent from

this Court addressing what officers may do when faced

with an arguably ambiguous invocation of the right to

silence. In Davis v. United States, 512 U.S. 452, 461-62

(1994), concerning an equivocal invocation of the right

to counsel, this Court stated that clarifying questions

can be good police work. In holding ‘hat Anderson’s

statement was ambiguous and that the officers’ follow-

up question could reasonably be interpreted as a

legitimate clarifying question, the state courts

reasonably applied Davis. This Court has not held its

Davis principles inapplicable to right-to-silence cases,

and it was not “unreasonable” or “contrary to” clearly

established law for the state courts to do so. See Carey

v. Musladin, 549 U.S. 70, 75 (2006).

Anderson acknowledges that context is critical.

However, he claims that the context here shows not

only that his “I plead the fifth” statement was

unequivocal, but that it was “only the culmination of a

series of efforts to terminate the interrogation.” (Opp.

p. 5.) Here, he follows the lead of the Ninth Circuit en

banc majority (“Anderson had already twice attempted

to stop the police questioning....”). App. A, p. 17. But

he has never previously argued that his statements

about “going upstairs” to the general jail population

constituted invocations or attempts to end the

interrogation (though an amicus curiae for Anderson

did so).

While the larger context of the interrogation

concerned the murder, the immediate context of

Anderson’s disputed statement was his use of drug pipes

to smoke methamphetamine. Anderson misreads the

record at this point, claiming that “the interrogation

focused on the methamphetamine pipe that was found

at the crime scene.” (Opp. p. 6, n. 4.) Actually, the

topic had shifted from Anderson’s drug use the day of

the murder to his drug use in general; when Anderson

said “I plead the fifth,” the questioning was not focused

on the pipe found at the crime scene. Consequently,

Anderson was not invoking his right to silence if he was

just refusing to discuss the particulars of his drug use.

See People v. Rundle, 43 Cal.4th 76, 115 (2008); People

v. Stitely, 35 Cal.4th 514, 535 (2005). Only by ignoring

this topic-shifting context of the questioning could the

Ninth Circuit override the state courts and hold that

Anderson’s statement was an unequivocal invocation of

his right to remain silent.

2. Regardless whether the police violated Anderson's

Miranda rights by continuing their interrogation after

he said “I piead the fifth,” the Ninth Circuit wrongly

granted relief on the assumption that the earlier error

rendered the later confession inadmissible. Anderson

points out that this argument was first raised by Judge

Bea in the Ninth Circuit. (Opp. p. 7.) That is true only

because no court until the Ninth Circuit en banc

majority opinion had found Anderson’s invocation to be

unambiguous or the officers’ attempt to clarify

disingenuous. Hence, there had never been any need to

address this scenario before. Having been raised by the

Ninth Circuit, this issue is properly before this Court.

See Virginia Bankshares, Inc. v. Sandberg, 501 US.

1083, 1099, n. 8 (1991); Lebron v. National R.R.

Passenger Corp., 513 U.S. 374, 379 (1995). Anderson

complains that, had this issue been raised in the state

superior court, he “would certainly have asked pointed

questions to the interrogating officers,” including

whether they were trying to “subvert Miranda.” (Opp.

pp. 7-8.) But Anderson did so: Detective MacDonnald

testified that he had been trained to cease questioning

when a suspect invokes and that he does not question

outside Miranda or allow others to do so. ‘The concerns

expressed by this Court in Missouri v. Seibert, 542 U.S.

600 (2004), are not present here. (Opp. p. 10, n. 5.) The

State’s argument could not possibly encourage any

police practice of subverting Miranda.

Anderson asserts that “(w]hat occurred an hour later

. is beside the point.” (Opp. p. 9.) His opposition

brief conspicuously sidesteps any discussion of Oregon

v. Elstad, 470 U.S. 298, 309 (1985), which held that a

failure-to-warn Miranda violation does not taint a

subsequent uncoerced admission made after proper

Miranda waivers. A failure to give the Miranda

advisements when clearly required is more egregious

than a failure to correctly discern whether a suspect

wishes to completely stop an interrogation. As in

Elstad, the admissibility of Anderson’s confession, made

after his honored invocation and immediate waiver,

should turn solely on whether it was knowingly and

voluntarily made. Oregon v. Elstad, 470 U.S. at 309.

Anderson posits that the State’s “proposed rule”

would invite continued questioning even after a valid

invocation. (Opp. p. 10.) Not so. The State is

concerned with interrogations where an_ officer

misinterprets an ambiguous invocation and is later

faced with a suspect who begs to talk after any clearly-

invoked rights of his were indeed honored. This is not

a case where police extended an illegal interrogation in

hopes that a suspect will later change his mind and

want to talk. Nor is it whitewashing an earlier

violation. Certiorari is warranted so that this Court can

give some needed, real-world guidance to officers

interrogating suspects who, like Anderson, ambiguously

invoke their right to silence, but—after a later clear

invocation of the right is honored—then insist on

talking.

For the foregoing reasons and for the reasons set

forth in the petition for writ of certiorari, the petition

for writ of certiorari should be granted.

Dated: September 4, 2008