Metropolitan News-Enterprise


Tuesday, May 13, 2014


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En Banc Ninth Circuit Says Teenager With 65 IQ Was Coerced Into Confessing


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals yesterday threw out a Navajo man’s conviction of molesting an 8-year-old neighbor, saying the intellectually disabled defendant was coerced into giving a confession.

The en banc court voted 11-0 to order a new trial for Tymond J. Preston, who was 18 years old when he was arrested. In doing so, the court said the test of voluntariness of a statement is a subjective one that must take into account a suspect’s individual characteristics, and overruled a line of cases suggesting otherwise.

Preston is presently serving a 50-month sentence for abusive sexual contact, which U.S. District Judge G. Murray Snow of the District of Arizona imposed following a three-day bench trial. Preston agreed to waive a jury trial, following denial of his motion to suppress the confession, in exchange for a reduction of the charge from aggravated sexual abuse of a minor—which carries a mandatory minimum 30-year term.

Child Interviewed

Preston was arrested after the child’s grandparents told police the teenager, whose IQ tested at 65, had been in their house and that the child said Preston “put his pee-pee” in the child’s “butt.” The next day, the child—who was the grandchild of Preston’s aunt, with whom Preston’s parents had been feuding—told an interviewer a lengthy tale about what happened.

The story was “lengthy, fantastical [and] largely incomprehensible,” Judge Marsha Berzon explained in her opinion for the Court of Appeals, and those details that might have been plausible could generally not be corroborated by physical evidence.

Preston was questioned by the FBI about a week later, the interrogation lasting about 40 minutes. During the interrogation, Berzon explained, the agents repeatedly told Preston they did not “buy” his denials, told him that “if something just a little bit happened…that’s cool,” told him that he was not in custody, but indicated he was free to go “after the interview,” and promised that they would not tell anyone other than the U.S. attorney what was in his written statement—which they characterized as an apology note to the victim—if he gave them one.

Tactics Questioned

Ultimately, Berzon wrote, the agents “repeatedly presented Preston with the choice of confessing to a heinous crime or to a less heinous crime; rejected his denials of guilt; instructed him on the responses they would accept; and fed him the details of the crime to which they wanted him to confess.” While those tactics might be acceptable when questioning a normally functioning adult, the judge concluded, their use while questioning an intellectually disabled man rendered the confession involuntarily.

Berzon acknowledged that under Derrick v. Peterson, 924 F.2d 813 (9th Cir. 1991), the defendant’s individual characteristics are only taken into consideration if the court first decides that the police conduct was, objectively speaking, coercive. But that case is not consistent with a subsequent Ninth Circuit en banc decision, rests “on an evident misreading” of a prior U.S. Supreme Court case, and is not good law, Berzon wrote.

Berzon was joined by Chief Judge Alex Kozinski, Senior Judge John T. Noonan, and Judge Stephen Reinhardt, Sidney R. Thomas, Kim McLane Wardlaw, Richard Paez, Morgan Christen and Paul J. Watford.

Concurring Opinions

Judge Susan P. Graber concurred separately, saying the tactics used by the agents were generally not coercive, but that the totality of the circumstances warranted reversal.

Judge Ronald M. Gould also wrote for himself, saying “the case does not need elaborate analysis” because the Supreme Court has endorsed a totality-of-the-circumstances test for determining voluntariness, and the combination of Preston’s limited intellect, “the strongly inculpatory nature” of the questions he was asked, and the false promises that his statement would remain private were sufficient to find that he did not confess voluntarily.

The case is United States v. Preston, 11-10511.


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