Case o' The Week: Cops "Preston" Interrogation Techniques -- Preston En Banc and Involuntary Confessions

Hon. Marsha Berzon

  “The right against compulsory self-incrimination is the mainstay of our adversary system of criminal justice and one of the great landmarks in man’s struggle to make himself civilized.”

   Noble sentiment. And, in our beloved Ninth, also the law. United States v. Preston, 2014 WL 1876269, *6 (9th Cir. May 12, 2014) (en banc) (quotations and citation omitted), decision available here.

Players: Decision by Judge Berzon, joined by Chief Judge Kozinski, Judge Reinhardt, Judge Noonan, Judge Thomas, Judge Graber, Judge Wardlaw, Judge Gould, Judge Baez, Judge Christen, and Judge Watford. Concurring decisions by Judges Graber and Gould.

Facts: Preston was 18 with an IQ of 65. Id. at *1. An 8-year old child of a neighboring family accused Preston of sexual assault. No forensic evidence supported the allegation. Id. at *2. 

  Police interrogated Preston for forty minutes at his home. Id. at *2. They quickly became aware of Preston’s mental disability. Id. Nonetheless, the officers badgered him to admit that he was at his house on the day of the alleged assault until Preston finally agreed (he actually was not). Id. at *3-*4. The officers got him to write out a confession, misleading him as to its purpose. Id. at *5. The officers confronted Preston with a series of questions that required him to choose between two incriminating alternatives – the boy repeatedly chose the least incriminating answer. Id. at *4. Preston filed and lost a suppression motion, then agreed to waive a jury trial. He was convicted of abusive sexual contact after a three day bench trial. Id. at *5. A three-judge panel affirmed, over a compelling dissent by Judge Noonan. See blog here. 

Issue(s): Under the Ninth’s 1991 Derrick v. Peterson decision, must the Court determine “first whether the police’s conduct here was inherently coercive, and, if not, [must the Court hold] the confession voluntary without regard to the likely impact on an individual with Preston’s mental characteristics [?]” Id. at *8.

Held: “[T]o the extent that Derrick held that the issue of police coercion during interrogations must be evaluated without regard to the individual circumstances of the suspect, it cannot be reconciled with prior opinions of this Court or with binding Supreme Court precedent . . . we now explicitly hold that Derrick is no longer good law and overrule it . . . .” Id. at *9. “[T]he officers’ use of the methods employed here to confuse and compel a confession from the intellectually disabled eighteen-year old before us produced an involuntary confession . . . we conclude the district court erred in admitting Preston’s confession.” Id. at *15-*16.

Of Note: Preston is gorgeous legal writing. Read it first to enjoy Judge Berzon’s practical explanation of why we care about the voluntariness of confessions, and her admonitions about the rigor required for the analysis. See id. at *8 (explaining that it is irrelevant to the question of voluntariness whether the confessor in fact spoke the truth).

 Then read it again for a seminal new rule: the defendant’s individual characteristics now matter at the outset of the voluntariness inquiry. This is a major development – Preston is a must-read.

How to Use: The “Reid Technique” teaches interrogation to cops. Id. at *12, see also the Reid web page here. The officers here used Reid interrogation techniques. Id. When the three-judge panel affirmed this shoddy interrogation, Reid posted the decision on its web page. 

  In this en banc decision, Judge Berzon carefully dissects the “Reid technique” and hammers the officers’ deviations from the manual. Id. at *12. It is a beautiful script for a cross (with an en banc imprimatur). Buy the Reid manual, read Preston at *12 - *15, remind your D.J. that the jury shall hear relevant evidence on the issue of voluntariness, 18 U.S.C. § 3501(a), and look forward to crossing the interrogating cop at trial.

                                               

For Further Reading: Preston’s single most important fact? The officers “began recording their interaction with Preston within ‘one or two minutes’ of approaching him.” Id. at *2, *9. Without that recording, the Court would have never known the extent of the coercion in the case – this mentally-disabled kid would have lost a swearing match with the police in an evidentiary hearing. 

   This is a second time in only a month that the recording of a confession gave the Ninth the true facts of the case – and revealed the real abuses that go on with interrogations. See blog on Ramirez-Estrada, here . 

   It is travesty that federal agents are still allowed to not record confessions.  For a blunt indictment of this shameful practice, see a compelling commentary here. 

Image of Judge Berzon from http://leadhership2014.weebly.com/speakers.html

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

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Case o' The Week: Mommy & Miranda - Ortiz, the Fifth Amendment, and Confessions

What could be more heartwarming than a maternal cop who assures a nervous young defendant that she "loves him," tells him that he reminds her of her own kids, warmly refers to him as a "young puppy," and assures him that she wants to hug him?

(Oh - did we mention that she also misleads him about being a cop while preparing him for a polygraph, and then elicits a murder confession that leads to his conviction?) Ortiz v. Uribe, 2011 WL 5607625 (9th Cir. Nov. 18, 2011), decision available here.


Players: Decision by Judge Alarcón.

Facts: Suspected of a homicide, eighteen-year old Ortiz voluntarily went to the sheriff’s for questioning. Id. at *1, *2. He waived his Miranda rights. Id. at *1. To support his claim of innocence Ortiz agreed to a polygraph. Id.

Detective Kathy Cardwell conducted the examination – but didn’t reveal to Ortiz that she was a sheriff. Id. When he admitted that he was nervous, Cardwell assured him she would help him get through. Id. Before the exam, she called Ortiz, “young puppy,” and “poor guy.” She compared Ortez to her own sons, “told him that she loved him, and offered him a hug.” Id. (emphasis added). She informed Ortiz that the “cops” couldn’t dictate the questions to her (not revealing that she was a cop,) and assured him “They [the cops] can’t have any say so in here, this is my world.” Id. “[D]o the right thing by [your] mom,” she urged, and by your “daughters and lady.” Id. After these instructions, and before the exam started, Ortiz confessed to the shooting. Id. at *2.

He was convicted in state court of, among other things, murder. The California appellate and Supreme Court denied his challenges to the use of his statements in trial, id., and the federal district court denied his habeas petition. Id. at *3.

Issue(s): “The question before this court is whether the California Court of Appeal’s decision was contrary to, or involved an unreasonable application of, clearly established Supreme Court law, or whether the court’s decision was based on an unreasonable determination of the facts in light of the evidence presented when the court determined that Ortiz’s will was not overborne when he confessed, based on the totality of the circumstances, including Ortiz’s claim that Detective Cardwell played a maternal role during the interview, concealed her identity as a police officer, allegedly made implicit promises that Ortiz would be given leniency, and appealed to his moral obligation to his family. Ortiz argues that his confession was involuntary because his will was overborne as a result of deceptive interrogation tactics.” Id. at *4.

Held: “[A] polygrapher’s empathic and parental questioning does not render a confession involuntary. We are persuaded that the undisputed evidence reflected in the record of the state trial court’s proceedings demonstrates that Detective Cardwell’s advice to Ortiz that he had to tell the truth to pass a polygraph examination, was not coercive. The California Court of Appeal’s conclusion that Detective Cardwell’s motherly or parental tone in preparing Ortiz for a polygraph examination did not violate Ortiz’s Fifth Amendment rights was not contrary to, and did not involve an unreasonable application of, clearly established Supreme Court law, and was not based on an unreasonable determination of the facts in light of the evidence presented.” Id. at *6.

Of Note: There’s little silver lining, in this dark cloud. Beyond its tolerance for an -- unusual -- interrogation technique (remember, Ortiz was just 18), the opinion isn’t bothered by the fact that Detective Caldwell ‘concealed the fact that she was a sworn officer and misled appellant into believing that she was not a police officer and that she was his ally rather than his adversary.” Id. at *6. “[T]his type of ‘deception,’” reassures Judge Alarcón, “is well within the range of permissible interrogation tactics necessary to secure a lawful confession by the police.” Id. at *6.

How to Use: Ortiz is a habeas case, and the Ninth is working under the extraordinarily deferential standards of AEDPA. It is conceivable that on a direct challenge, the facts of Ortiz could violate the Fifth – yet not rise to the level of AEDPA error. Hammer that distinction: the more Ortiz is confined to habeas law, the better.

For Further Reading: “[T]he current system of criminal law and enforcement (like too many of our citizens) has grown obese.” So observes Justice Stevens, in a fascinating N.Y.T. book review on our “Broken System of Criminal Justice,” available here.



"My Mom is a Deputy Sheriff" from http://images7.cafepress.com/image/28626857_125x125.png

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org


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Case o' The Week: Ninth Won't "Pucker Up to Kiss the Great Writ Goodbye:" Doody, Miranda, and Voluntariness of Confessions

Thanks to the Supremes, Miranda is battered and bruised - with another lousy decision coming out just last week. Thankfully, Miranda protections still having real meaning in the Ninth, as evidenced by an important new en banc decision by Judge Johnnie B. Rawlinson (right). Doody v. Schriro, __ F.3d __, 2010 WL 653441 (9th Cir. Feb. 25, 2010) (en banc) (decision available here).

Players: Decision by Judge Rawlinson, dissent by Judge Tallman.

Facts: Nine people - including six monks - were murdered inside of an Arizona Buddhist temple. Id. at *1. The Phoenix team of detectives investigating the case interrogated four men, who confessed and charged with murder. Id. Those confessions were false; the murder charges were dismissed. Id. & n.1.

The same task force eventually seized on Doody, a seventeen-year old boy. Id. They took Doody in and questioned him overnight for over twelve hours, used tag-team interrogation, sat him in a hard, straight-backed chair, after giving him long and garbled Miranda “warnings. Id. at *1-*10.

Doody confessed to being present during the murders, was charged, unsuccessfully moved to suppress his statements in state court, and was convicted of first degree murder. Id. at *11. His appeal was denied by the state appellate court, his habeas was denied by a three-judge Ninth panel, and the case went en banc. Id. at *12.

Issue(s): “Although Doody eventually confessed to participating in the nine murders, he now challenges his confessions, asserting that the Miranda advisements he was given were inadequate and that his confession was involuntary.” Id. at *1.

Held: “We agree on both counts. Specifically, we conclude that the advisement provided to Doody, which consumed twelve pages of transcript and completely obfuscated the core precepts of Miranda, was inadequate.” Id. at *1.

Of Note: Doody is an admirable piece of legal writing, with exhaustive discussion of the factual record and a detailed analysis of controlling (and distinguishable) authority. It is also clearly heartfelt, as revealed in Judge Rawlinson’s shot across Judge Tallman’s bow:

The dissent would prefer that we simply parrot the findings made during the state court proceedings and call it a day. However, if we succumb to the temptation to abdicate our responsibility on habeas review, we might as well get ourselves a big, fat, rubber stamp, pucker up, and kiss The Great Writ good-by.

Id. at *14.

How to Use: Doody will be remembered as a Miranda case, but to be honest Miranda warnings are rarely butchered as badly as by the Arizona detectives in this case. The real potential value of the opinion is in its comprehensive discussion and analysis of the voluntariness of the confession – separate and apart from the Miranda warnings. Id. at *16 - *29.

Judge Rawlinson patiently wades through – and effectively distinguishes – each of the cases tossed up by the dissent, making Doody an excellent primer on the voluntariness issue. Of particular interest is the opinion’s correct insistence that the “voluntariness” inquiry must on weigh all of the factors around an interrogation in totality, and a court cannot simply tick-off (and dismiss) factors in isolation. Id. at *19-*23. Doody will be a lead case in the Ninth: it should figure prominently in any motion challenging the voluntariness of a custodial interrogation.

For Further Reading: The 800-pound gorilla (for any post-AEDPA, Ninth Circuit opinion) pounded its chest in a most-unwelcome way this week. In Maryland v. Shatzer, __ S. Ct. __, 2010 WL 624042, *8 (U.S. Sup. Ct. Feb. 24. 2010), the Court permitted law enforcement to re-initiate custodial interrogations two-weeks after a suspect asserts Miranda protections. Shatzer comes about a year after Montejo v. Louisiana, 129 S.Ct. 2079 (2009), where the Court permitted law enforcement to initiate post-appointment interrogation of represented defendants.

When you read of the really abusive interrogation of a minor in Doody (by the same Phoenix task force that had managed to grind out four false confessions in the same case) it makes the Supreme Court’s recent Miranda missteps all the more troubling.

Image of the Hon. Johnnie B. Rawlinson from http://www.pepperdine.edu/pr/images/solgrad07rawlinson.jpg

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at www.ndcalfpd.org


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