Franklin v. Duncan, No. 95-15820
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
| Writing for the Court | Before FERGUSON and HAWKINS, Circuit Judges, and NIELSEN; PER CURIAM |
| Citation | 70 F.3d 75 |
| Parties | 95 Cal. Daily Op. Serv. 8806, 95 Daily Journal D.A.R. 15,431 George Thomas FRANKLIN, Petitioner-Appellee, v. William DUNCAN, Warden, Respondent-Appellant. |
| Docket Number | No. 95-15820 |
| Decision Date | 20 November 1995 |
Page 75
D.A.R. 15,431
v.
William DUNCAN, Warden, Respondent-Appellant.
Decided Nov. 20, 1995.
Page 76
Bruce Ortega, Deputy Attorney General, San Francisco, California, for respondent-appellant.
Dennis P. Riordan, Riordan and Rosenthal, San Francisco, California, for petitioner-appellee.
Appeal from the United States District Court for the Northern District of California.
Before FERGUSON and HAWKINS, Circuit Judges, and NIELSEN, District Judge. *
PER CURIAM:
We affirm the district court's grant of Franklin's petition for writ of habeas corpus. We agree with the analysis and conclusions reached by the district court and hereby adopt the district court opinion which is reported Franklin v. Duncan, 884 F.Supp. 1435 (N.D.Cal.1995). We supplement the opinion of the district court by including verbatim the prejudicial closing argument of the state prosecutor and the verbatim jury instruction, both of which constituted prejudicial error in violation of Franklin's Fifth Amendment right to remain silent. The prosecutor stated:
[I]n 1989, when he's arrested by Sergeant Morse and Detective Cassandro, something very interesting happens. They tell [Franklin] that they're investigating the Susan Nason homicide and that they want to ask him some questions about it.
And what is his response? Quote: "Have you talked to my daughter?"
Smart man. He wants to know what they know before they start asking him any questions.
And when Eileen goes to visit him in the jail in January of this year, what happens?
Well, imagine--just, if you can for a moment, think about it. Assume for the moment that Mr. Franklin is not guilty. He has not committed this murder; he knows it. He didn't do this. And he learns that his daughter, who is accusing him of this murder, who has caused him to be arrested, is there to see him at the jail.
What is he going to say to her? What would any innocent person in a similar situation do?
Eileen, why are you doing this? You know it's not true. Whatever it is, we'll talk about it. Don't do this to me. You know it's wrong. You're lying. Are you sick? Are you angry? What is going on? Why are you falsely accusing me?
Does he say any one of those things?
No.
Page 77
It's Eileen who says to the defendant: Dad, a lot of what I am is because of you. And you did some good things for me: You told me to always tell the truth--and that's what I'm doing--and you always said that the truth would set you free. Doesn't that apply to both of us?
Those were Eileen's words to her father.
And what was his response?
Ladies and gentlemen, Mr. Franklin's response was to point to a sign that says: "Notice. This station may be monitored."
Now, what does that tell you?
That tells you law enforcement might be monitoring their conversation.
So what would be the most sensible thing to do?
Deny it: Eileen, what do you mean, tell you the truth? What do you mean, tell the truth? Why don't you tell the truth. You know I didn't do this. How can you accuse me of this? How can you falsely accuse me of this?
No. He believes the conversation is being monitored, and he does not deny a false accusation of...
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Arnold v. Runnels, 04-15194.
...admission violates the Fifth Amendment. Griffin v. California, 380 U.S. 609, 613, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); Franklin v. Duncan, 70 F.3d 75, 76-77 (9th Cir.1995) (concluding that prosecutor's reference to defendant's post-Miranda silence and trial court's instructions that jury c......
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Brown v. Terhune, C-98-2318-SI.
...Page 1081 relevant evidence of significant probative value to the defense.'" Franklin v. Duncan, 884 F.Supp. 1435 (N.D.Cal.1995), aff'd, 70 F.3d 75 (9th Cir.1995). To determine whether a criminal defendant's Sixth Amendment right of confrontation has been violated by the exclusion of eviden......
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Franklin v. Fox
...unconstitutional errors in his state court trial. Franklin v. Duncan, 884 F.Supp. 1435 (N.D.Cal.1995). We affirmed. Franklin v. Duncan, 70 F.3d 75 (9th Cir.1995) (per curiam) (adopting the district court opinion and supplementing the factual On the heels of his release, Franklin sued in fed......
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People v. Hackett, Docket No. 111717, Calendar No. 17.
...to have his silence used against him. [Id. at 1447.] This result was affirmed by the Ninth Circuit Court of Appeals. Franklin v. Duncan, 70 F.3d 75, 78 (C.A.9, 596 N.W.2d 117 Similarly, in the instant case, it is quite logical to assume that defendant's postarrest, post-Miranda silence was ......