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).
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.
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.
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.
the Honorable Judge John T. Noonan from http://blog.beliefnet.com/pontifications/files/import/imgs/Judge%20Noonan.jpg
Kalar, Federal Public Defender Northern District of California. Refreshed web
page available at www.ndcalfpd.org
Labels: 18 USC 3583 (Supervised Release), Bybee, coercion, Farris, Interrogation, involuntary statements, Miranda, Noonan, Sex Offenders, Supervised Release