The opinion of the court was delivered by: Alsup, District Judge.
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Petitioner Tammy Garvin, then a 32-year old prostitute, knew
the murder victim, Rolf Neumeister. She had worked for him as a
waitress and had maintained an intermittent sexual relationship
with him. Knowing where Neumeister kept the restaurant's
proceeds, she suggested to Lucien Lemelle, her lover, that
Neumeister would be easy to rob. They drove to Neumeister's after
hours. She asked Neumeister to open the door. When he did,
Lemelle barged in and robbed Neumeister. Petitioner claims she
sat in the car while Lemelle killed Neumeister. Eventually
petitioner turned herself in to the police in Campbell,
On March 15, 1991, she was interrogated by Detectives Kern and
Lee. She was first given her Miranda rights. She repeatedly
asked for counsel and said she had nothing to say. The detectives
disregarded this and pressured her to talk. They made many
representations to her about what Lemelle (also under arrest) was
saying and tried to persuade her that she was headed for a murder
charge while Lemelle would be held only as an accessory. Calling
it "egregious" misconduct, the state court of appeal found the
detectives repeatedly invited her to admit to robbery and
materially understated the legal consequences of doing so,
conveniently leaving out the felony-murder rule:
The officers suggested to appellant that if she did
not cooperate she would be prosecuted for murder with
special circumstances and that Lemelle would be
prosecuted merely as an accessory. They told her,
falsely, that Lemelle had given them a statement
implicating her as the "heavy" and suggested that she
would vastly improve her legal situation if she
admitted participation — either in the robbery but
not the killing or by admitting the killing but
denying it was premeditated. Such an admission, they
stated, would "take away the special
circumstances." Their account of the law of murder
was materially misleading in omitting the
felony-murder doctrine. They claimed to have found
physical evidence (fingerprints and skin from under
Neumeister's fingernails) which they did not have.
They pleaded with appellant not to "take the fall"
but to tell them who did it and "give [them]
something to work with," let them "work for" her and
"get [her] out of jail." They told her talking to
them could only get her "out of trouble or lessen the
trouble" she was in.
They told appellant Lemelle's family would get him "a
good attorney," whereas she would not "have the means
to get past the Public Defender's Office. Which means
you're going to have to help yourself, cause there
ain't gonna be anybody out there helping you."
Interspersed throughout were "reminders" that nothing
appellant said could be used against her in court.
The first interrogation ended after a short break
when appellant insisted she had not slept for three
days and needed to sleep, but that she would call.
Kern left his business card with appellant.
DCA Opinion at 7 (Aug. 27, 1999).*fn2
Lee: You know that we can prove whether or not you
were there. Okay. That's a mute [sic, moot] point.
Number one, what we need to know is are you going
to take the fall all by yourself. And number two,
why did the old fart have to die for his money. Why
didn't you just rip him off, you've done it before
and you've gotten away with it. He didn't have to
die this time.
Lee: That's something I would like to know.
Kern: Maybe it didn't even start off to be that, you
know. Maybe it was just a simple rip off. Maybe he
Lee: Maybe he went sideways. Came after you? Came
Kern: Yeah, if that's the case . . .
Lee: That explains things, that answers questions.
Kern: If that's the case, then that takes away the
special circumstances. To go there with the intent
just to steal.
Lee: And it turned to shit.
Kern: That's two different things. I don't know if
you want to help yourself in just that area. Cause
otherwise everybody is going to believe that you
went there to kill him to take his money. Okay.
That's what everybody is going to believe.
Lee: He's gonna come out of this smelling like a rose
more than likely. If he cooperates the way he um .
Lee: He indicated he wants to . . .
Garvin: Lou sounds so negative, come on.
Kern: He's happy with his role as an accessory, I'll
tell you that. That beats, that beats the other
option, which is the one you're in. He's not
looking to join you as a co-defendant. He's very
content with an accessory role versus a primary
role, which is why he has bail and you don't. Even
though his bail is outrageous, but that's why he's
got bail and why you don't. And he was not booked
Garvin: What was he arrested for?
Kern: Accessory, which basically means aiding and
abetting you. But not murder.
Kern: It's murder this time with a capital offense
possibly hanging over your head because of the
special circumstances. Take a couple of minutes and
just process all that. (Long pause.) You have a tub
that was scoured, but not all the way. (Short
pause.) And then there's the bathroom door.
Lee: The other thing is you know this is half of the
evidence we've got against you. We talked about
that it's your fault and you can take the whole rap
yourself. Whether you owe anybody that much. Are
you willing to face a capital offense as opposed to
just the normal bullshit.
Garvin: I didn't kill Rolf. ...