Wednesday, July 13, 2011

Brown v. Horell, No. 09-16643 (7-12-11) (Marbley, D.J., with Gould and M. Smith).

AEDPA deference again leaves an involuntary bitter taste. The petitioner is serving LWOP for first degree murder and other convictions. He was 21 at the time, with limited education, and a cocaine addict. In his petition, he claimed that his confession was involuntary and that he was prevented from calling a false confession expert. The police detective who questioned the petitioner played upon his desire to see the birth of his child. The focus was that cooperation and telling the truth would get him by his girlfriend's side during childbirth. The 9th went through the Supremes' analysis about how threats or promises to a defendant's family or children can cause a statement to be involuntary. The 9th, in Tingle, 658 F.2d 1332 (9th Cir. 1981), concluded that deliberating preying upon maternal or paternal instincts or the fear of not seeing children again is improper influence. the panel would find the statement involuntary. However, there is AEDPA. The 9th concludes that other circuits and courts are not so inclined to find that leveraging familial affections causes a statement to be involuntary. Threats or promises to family members, and especially children, do not warrant special attention as in the 9th, but are just one factor in a totality of circumstances analysis. AEDPA deference prevails. The 9th also affirms the denial of the claim that preclusion of a false confession expert prevented petitioner from mounting a complete defense. The trial court's decision to preclude was within its discretion.


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