Tuesday, February 05, 2013

U.S. v. Preston (9th Cir. - Feb. 5, 2013)

When I read this opinion by Judge Farris (joined by Judge Bybee), it, seemed plausible.  Sure, I could see some potential problems with the case.  The alleged sexual abuse victim -- an eight-year old boy -- clearly made some stuff up.  But as Judge Farris explained, that sometimes happens.  Similarly, the police conducted a fairly aggressive interview, replete with lies, shaded stories, and lots of questions along the lines of "When did you stop beating your wife?"  But that's fairly common too.  I've seen a lot worse on television, and am sure a lot worse goes on in practice.  If I were trying to get an alleged child molester to confess, I'm sure that I too would ask questions like "There are two types of people.  Monsters who prey on people, and people who just make one-time mistakes.  Which one are you?"  Questions which allegedly make it easier for the suspect to feel "good" about confessing.  Finally, I can see the problem with interviewing the defendant here.  He's mentally disabled, with an IQ of 65.  But those people commit crimes too, right?  Gotta get them to confess as well.

So when I finish reading the majority opinion, my reaction is:  Maybe.  Maybe that's right.  It's at least possible that Preston did the crime.  He eventually confessed, after all.  So maybe we're happy with locking him away.

Then I read Judge Noonan's dissent.


It's not that Judge Noonan says anything factual that I didn't already know from reading the majority opinion.  He doesn't.  Everything's in there.

It's the way Judge Noonan puts it together.

Stunningly good.

When you get through reading Judge Noonan's dissent, you're not just less confident that justice has been done.  You're also heavily persuaded -- or at least I am -- that Preston might actually be innocent.  Or at least that to call him guilty beyond a reasonable doubt seems a massive stretch.

You've got little to no actual "evidence" that a crime occurred.  Really all you have is the claim -- not even the sworn testimony -- of an eight-year old boy who we are certain made a ton of things up.

I particularly found powerful the stuff at the end of Judge Noonan's dissent.  The stuff about how lots and lots of false confessions are the result of precisely the types of things that transpired here; in particular, the aggressive questioning of mentally disabled people.  They're easy to confuse.  They're very willing to follow the "lead" of authority figures.  Especially when, as here, they're given two choices (i.e., "Are you a monster, or do you just want to say you're sorry") and elect the one that's the most palatable.  Yes, a person of normal intelligence might "think outside the box" and understand that there's a third option.  But that's less likely -- much less likely -- for someone with an IQ of 65.

Could Preston have actually done it?  Yes.  It's possible.  Maybe the boy is telling the truth, albeit saddled between stories of monster trucks, police helicopters, the rape of his sister, 911 calls, jumps off the roof, and the killing of various robbers, all of which we know aren't true.  After all, there was seemingly no reason for the boy to make up the initial story of the assault.  So maybe that's true but the rest of it's fantasy.

But, man.  Maybe not.

Read Justice Noonan's dissent.  Impressive.