Case o' The Week: Noonan's Not ImPreston - Preston and Coerced Confessions

Does law enforcement like the new Preston decision, tolerating a confession obtained from a retarded 18-year old, with no Miranda warnings? 

  Hard to say (though a business that teaches cops to interrogate includes the order denying suppression on their webpage).
  United States v. Preston, 2013 WL 431951 (9th Cir. Feb. 5, 2013), decision available here.

The Honorable John T. Noonan

Players: Decision by Sr. Judge Farris, joined by Judge Bybee. Compelling dissent by Judge Noonan.

Facts: An eight year old boy entered the home of his neighbor and relative, 18-year old Preston. Id. at *1. Preston is mildly mentally retarded, with an IQ of 65. Id. at *6. The government’s account is that Preston put on a condom, had anal intercourse with the boy, and ejaculated. Id. The boy, crying, reported this to relatives and was taken to the hospital. Id.  

Although the boy complained of pain, a forensic exam revealed no physical evidence of a sexual assault. Id. at *2. “The government does not argue that there exists DNA evidence of sexual contact between the child and Preston.” Id. at *15 (Noonan, J., dissenting). 

The boy told a forensic examiner a convoluted story of clearly-fabricated events that were intertwined with the assault, involving monster trucks and throwing knives. Id. at *1. 

Agents later approached Preston at his home and interviewed him for forty minutes, without Miranda warnings. Id. at *2, *6. The agents lied, falsely assured Preston the interview was confidential, repeatedly mixed-up the actual date of the alleged assault, pressed him with rounds of leading questions, wrote out his statement, and ultimately got him to sign a confession. Id. at *2-*3. While being interrogated Preston explained that he had short-term memory loss, a tumor in his head, and had been kicked out of school because of his behavior. Id. at *3. When an agent asked if he was “disabled,” Preston didn’t know what the word meant. Id. 

The case was tried in a bench trial, the confession was admitted over defense objection, and Preston was convicted of aggravated sexual assault. Id. at *6.

Issue(s): “Preston . . . argues that his confession was involuntary and thus improperly admitted at trial.” Id. at *1. “Preston contends that a finding of involuntariness is irrefutable in light of his characteristics, specifically his diminished mental capacity.” Id. at *6 (internal quotations omitted).

Held: “The personal characteristics of the defendant are constitutionally irrelevant absent proof of coercion . . . . Preston's diminished mental capacity does not so heavily influence the totality of circumstances test that a finding of involuntariness is appropriate.” Id. (internal quotations and citation omitted).

Of Note: Judge Noonan forcefully and persuasively takes the majority to task for upholding a conviction based solely on the “coerced” and “involuntary” confession of a retarded 18-year old. Id. at *15 (Noonan, J, dissenting). Of particular concern is the majority’s apparent new rule that the coercion of a mentally-impaired person depends on the length of the interrogation. Id. at *17.

Preston deserves a second look by the en banc court – both for its tolerance of a most-troubling conviction, and for its new reading of the coercion inquiry that is “unsubstantiated” by case law. Id. at *17.

How to Use: As unwelcome as the primary holdings are in Preston, the opinion does offer useful discussions of supervised release. The Court reverses and remands because of conditions imposed on the lifetime term of supervised release. Id. at *13-*14. If you’re fighting a penile plethsymograph condition, a prohibition of “sexually orientated” materials, or a prohibition of being in “the company” of another (here children, but same rationale applies to gangs), read Preston – yet another Ninth case questioning Probation’s fixation on impossible or unfair conditions of supervision.

                                               

For Further Reading: Have a sex case? Grab this great primer: “The Fine Print and Convicted Sex Offenders: Strategies for Avoiding Restrictive Conditions of Supervised Release,” by R&W Attorney Jennifer Gilg, available here.

Image of the Honorable Judge John T. Noonan from http://blog.beliefnet.com/pontifications/files/import/imgs/Judge%20Noonan.jpg

Steven Kalar, Federal Public Defender Northern District of California. Refreshed web page available at www.ndcalfpd.org

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