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: 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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