U.S. v. Redlightning, No. 09-30122 (10-25-10) (Gould with Wardlaw and Mill, D.J.). This appeal has an extensive discussion on what it takes to get in expert testimony of false confessions. The case arises from a murder and sexual assault over 20 years ago. It went unsolved for 18 years, and then the police got a lead from a witness who knew the defendant. This lead to a re-opening of the investigation. The defendant became a suspect as a result. He was a Vietnam vet, suffering from PTSD, diabetes, low IQ, and blindness or impaired vision in his eyes. He was taken from his house and questioned by the FBI, put on a polygraph, and quickly confessed. The 9th found that the confession was neither involuntary nor in violation of Miranda. At trial, the defendant tried to get in a false confession expert. The court kept the expert out, under Daubert, when the expert concluded that there was nothing in the record to support his theory that the interrogation techniques used here raised a risk of false confession. There had to be more of a foundation connection to allow the expert to testify about false confession theory than just that false confessions occur. The 9th cautioned that its ruling is not a bar on such experts, nor does the defendant have to recant. There has to be some foundational evidence that would call the confession into question and a basis to show how the techniques triggered a false statement. Among the various other challenges, the 9th found the district court erred in allowing in the defendant's previous rape to show propensity to confess. It could come in, and did, under the evidentiary rules allowing for previous sexual assault convictions. The error though was harmless. The government also did not engage in misconduct to argue that no one would confess unless it was true.

Williams v. Ryan, No. 07-99013 (10-26-10) (Schroeder with Berzon; partial concurrence and dissent by Ikuta). This is a Brady issue. The petitioner was convicted of capital murder of his former girlfriend and given a death sentence. There was an alleged confession to a present girlfriend, but little else in the way of physical evidence due to the remote location of the killing. Two years after the sentence, the state turned over letters written by an inmate to a detective that contained information that petitioner paid another man (Fields) who actually had committed the murder. There was evidence that connected him. The issues here turn over whether this was Brady, and Brady as to what stage (guilt/sentence), and whether an evidentiary hearing was required. The 9th found that it was Brady as to sentencing, and a writ should be issued. The majority went further, holding that the Brady violation concerning another alleged perpetrator went to guilt, and that an evidentiary hearing was required to develop the record on whether it necessitated a new trial. In dissent, Ikuta would not go so far, finding no need for an evidentiary hearing in the guilt phase because the petitioner did not supposedly ask for it forcefully enough and under the facts as already developed.

McNeal v. Adams, No. 08-16472 (10-26-10) (Goodwin with Ikuta; concurrence by Berzon). The public defender missed the hearing on the prosecutor's request for a DNA sample in a sexual assault case. The petitioner argues that deprivation of counsel was at a critical stage (a Cronic stage) and IAC. Under the latter, the 9th held under AEDPA, the state court's decision that it was not IAC under Strickland was not unreasonable. Counsel appeared at a subsequent hearing, before the results came back, and did not raise an issue. Moreover. there did not seem much basis to argue against a DNA sample. Under federal due process analysis, this is not a Cronic critical stage. Concurring, Berzon believes that the court should have stopped with the Strickland analysis, and did not need to take up the critical stage issue. She also wishes to clarify that the "critical stage" standard applicable to Cronic, 466 US 648 (1984) is separate from critical stage standard applicable to Sixth Amendment claims. The Cronic stage concerns any stage at a criminal proceeding where substantial rights of the defendant is at issue. This differs from where the denial of counsel has such significant consequences that a prejudice determination is impractical. The distinction is between when a defendant gets a lawyer and a denial of a lawyer gives rise to an automatic reversal. The attempts of the majority to clarify the issue in its opinion has led to more confusion.

U.S. v. Vela, Jr., No. 08-50121 (10-26-10) (Canby with Rawlinson; dissent by N. Smith). The defendant was found "not guilty by reason of insanity" of assault on a federal officer in violation of 18 U.S.C. 111. So, does he have a right of appeal? That's the first question. The majority said "yes," because the verdict was a final order. The dissent (and government) argued that it was not, because it was an acquittal on criminal charges, and he is now transferred into civil commitment. Once the 9th found that there was a right of appeal, it denied defendant relief on his appeal issues, where he argued that the indictment should have been dismissed, the jury should have been instructed on wilfulness, and he should have been allowed to raise a diminished capacity defense. The 9th explained that 18 U.S.C. 111 was not a specific intent offense, but a general crime. Lastly, the charge itself was not facially unconstitutional under Apprendi. Dissenting, N. Smith argues that there is no conviction in this case, and no sentence. He fears that defendant's will get two bites of the apple for trial strategies.