Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.


December 20, 1999


The opinion of the court was delivered by: Alsup, District Judge.



In this federal habeas case brought by a state prisoner, the issue concerns the voluntariness of a confession obtained after detectives falsely suggested to the suspect that she could avoid a murder prosecution by confessing to robbery and urged her to "cooperate" before she consulted with a lawyer. The state courts condemned this tactic but held its coercive force had attenuated by the time of the non-counseled confession, three days later, a confession used to convict petitioner of murder. In this habeas proceedings, petitioner makes a powerful case of coercion and involuntariness. Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), however, federal district courts may no longer engage in de novo review of the voluntariness of confessions. Under the deferential review required by AEDPA, the petition must be denied.*fn1


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, California.

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

The transcript of that interview includes passage after passage wherein the detectives misinformed petitioner concerning the legal consequences of confessing to robbery:

  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.

Kern: His checks.

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
    went sideways.
  Lee: Maybe he went sideways. Came after you? Came
    after Lou?

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 .

Kern: Has so far.

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
    for murder.

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.

Kern: Uhm.

Garvin: I didn't kill Rolf. ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.