9th Circuit Court Thrown Out Confession

[Nicarlov]

Jurisdiction

Arizona

I have a question regarding a case in Arizona. The 9th Circuit Court of Appeals overturned a conviction and threw out the confession. Now during the retrial the defendant wanted to testify, but his lawyer aggressively recommended against that decision. Apparently in Arizona if a defendant testifies, the court/prosecutors can now bring in the confession that was thrown out (as a result of his appeal win). I would like to know if this is true. Even though his confession is not admissible can the state bring it into evidence if the defendant testifies?

 

[adjusterjack]

Apparently in Arizona if a defendant testifies, the court/prosecutors can now bring in the confession that was thrown out (as a result of his appeal win).

Where did you see that? Be specific.

And name the case.

I would like to know if this is true. Even though his confession is not admissible can the state bring it into evidence if the defendant testifies?

Sorry, without case details, the question is too vague and I'm getting too many cases and articles on confessions to be able to drill down to that particular situation.

All I can say is, if the confession was the only thing that convicted the defendant, he'd be a damned fool to testify at his retrial because the confession itself could have revealed details on which the defendant could be questioned even without revealing the existence of the confession.

 

[Highwayman]

Is this a homework assignment for school?

 

[army judge]

I have a question regarding a case in Arizona. The 9th Circuit Court of Appeals overturned a conviction and threw out the confession. Now during the retrial the defendant wanted to testify, but his lawyer aggressively recommended against that decision. Apparently in Arizona if a defendant testifies, the court/prosecutors can now bring in the confession that was thrown out (as a result of his appeal win). I would like to know if this is true. Even though his confession is not admissible can the state bring it into evidence if the defendant testifies?

I'd need to know what charge(s) was(were) originally lodged against the defendant, and if the person was charged in state or federal court.

If the case was remanded for review, or trial de novo.

Yes, the distinctions matter.

However, whatever I say, or anyone might say, a criminal defendant does her(him)self a great disservice by not heeding the advice of counsel.

If such a defendant doesn't trust counsel implicitly, completely, that defendant should seek to fire current counsel and retain new counsel.

 

[Nicarlov]

I have a question regarding a case in Arizona. The 9th Circuit Court of Appeals overturned a conviction and threw out the confession. Now during the retrial the defendant wanted to testify, but his lawyer aggressively recommended against that decision. Apparently in Arizona if a defendant testifies, the court/prosecutors can now bring in the confession that was thrown out (as a result of his appeal win). I would like to know if this is true. Even though his confession is not admissible can the state bring it into evidence if the defendant testifies?

Where did you see that? Be specific.

And name the case.



Sorry, without case details, the question is too vague and I'm getting too many cases and articles on confessions to be able to drill down to that particular situation.

All I can say is, if the confession was the only thing that convicted the defendant, he'd be a damned fool to testify at his retrial because the confession itself could have revealed details on which the defendant could be questioned even without revealing the existence of the confession.

This is the Johnathan Doody case. 9th Circuit Court deemed his interrogation/confession was coerced, kicked out his confession, and reversed his conviction. Now in his last trial he did want to testify but his lawyer said no as this would open up the state to bring in his interrogation/confession which the 9th circuit court deemed illegal.

 

[adjusterjack]

in his last trial he did want to testify but his lawyer said no as this would open up the state to bring in his interrogation/confession which the 9th circuit court deemed illegal.

I've done some more looking but haven't found anything that would confirm or deny the lawyer's assertion.

I learned that Doody was convicted as a result of his third trial but I found nothing online to say whether he testified or not.

However, I did find two articles that alluded to the fact that the confession was off limits and the prosecution relied primarily on Garcia's testimony to convict Doody.

Guilty verdict reached in Buddhist temple massacre

Johnathan Doody verdict: Man found guilty in 1991 temple slayings trial

 

[Nicarlov]

I've done some more looking but haven't found anything that would confirm or deny the lawyer's assertion.

I learned that Doody was convicted as a result of his third trial but I found nothing online to say whether he testified or not.

However, I did find two articles that alluded to the fact that the confession was off limits and the prosecution relied primarily on Garcia's testimony to convict Doody.

Guilty verdict reached in Buddhist temple massacre

Johnathan Doody verdict: Man found guilty in 1991 temple slayings trial

Thank you very much. So this leads me to my next question. during his last trial he wanted to testify but his lawyer threatened to walk out if he testified (due to the assumption the state could then bring in his interrogation/confession). If the assumption was incorrect and the state was not allowed to bring in his interrogation/confession (based on Johnathan's desire to testify) would the fact that the defense lawyer misrepresented these facts be grounds for an appeal?

 

[adjusterjack]

If the assumption was incorrect and the state was not allowed to bring in his interrogation/confession (based on Johnathan's desire to testify) would the fact that the defense lawyer misrepresented these facts be grounds for an appeal?

Difficult to address that question as I have not been able to confirm or deny the lawyer's assertion.

However, it seems to me that any appeal would have had to have been based on ineffective counsel if, indeed, the lawyer misrepresented the risk.

I don't see that succeeding as appellant would have to show that his own testimony would have changed the outcome and I don't see that happening.

 

[army judge]

Thank you very much. So this leads me to my next question. during his last trial he wanted to testify but his lawyer threatened to walk out if he testified (due to the assumption the state could then bring in his interrogation/confession). If the assumption was incorrect and the state was not allowed to bring in his interrogation/confession (based on Johnathan's desire to testify) would the fact that the defense lawyer misrepresented these facts be grounds for an appeal?

No, because the RIGHT to testify lies solely with the defendant.
A lawyer, HIS lawyer can't prevent him from testifying.
The lawyer, HIS lawyer has rights, too.
One of those rights is to step down from the case if the client doesn't cooperate or agree with the lawyer's strategy.
Bottom line, there's no way a lawyer can prevent the client from testifying.
These two people ad an impasse.
The defendant chose to back down, by not testifying, and not firing the lawyer.

None of those issues are appealable, per se.

 

[adjusterjack]

No, because the RIGHT to testify lies solely with the defendant.

Now that you are here, maybe you can help.

This discussion is asking the question: What is the risk to the defendant if he testifies during retrial when his prior confession is inadmissible?

In other words, since the confession is off limits, what can a prosecutor ask of the defendant that would serve to elicit inculpatory statements by the the defendant?

Consider this (overly simplified) scenario:

Defense - Did you kill those people?
Defendant - No.
Defense - But Mr _______ said he saw you do it.
Defendant - He's lying.
Defense - No further questions.

Prosecution - You said you didn't kill those people and Mr _______ is lying?
Defendant - Right
Prosecution - But on such and such a date didn't you admit to killing those people?

That question obviously refers to the confession. If the question is allowed then there is obvious risk to the defendant and the lawyer's admonition is proper.

But if the question gets thrown out because it refers to an inadmissible confession, then what's the harm in the defendant testifying at retrial?

By testifying at retrial he may be waiving his right against self-incrimination but is he also waiving the inadmissibility of the confession?

I've been looking for case decisions that address this issue with no success.

 

[army judge]

Now that you are here, maybe you can help.

This discussion is asking the question: What is the risk to the defendant if he testifies during retrial when his prior confession is inadmissible?

In other words, since the confession is off limits, what can a prosecutor ask of the defendant that would serve to elicit inculpatory statements by the the defendant?

Consider this (overly simplified) scenario:

Defense - Did you kill those people?
Defendant - No.
Defense - But Mr _______ said he saw you do it.
Defendant - He's lying.
Defense - No further questions.

Prosecution - You said you didn't kill those people and Mr _______ is lying?
Defendant - Right
Prosecution - But on such and such a date didn't you admit to killing those people?

That question obviously refers to the confession. If the question is allowed then there is obvious risk to the defendant and the lawyer's admonition is proper.

But if the question gets thrown out because it refers to an inadmissible confession, then what's the harm in the defendant testifying at retrial?

By testifying at retrial he may be waiving his right against self-incrimination but is he also waiving the inadmissibility of the confession?

I've been looking for case decisions that address this issue with no success.

Consider this.
Anyone on that jury, well MOST people on that jury will know the history of that case.
Testifying, even if its persuasive, won't help him.

This is simply trial strategy.
Very few defense lawyers believe its helpful for a defendant testify.

Yes, if he testifies, the previous confession might come in.
That's a crapshoot, and most lawyers would avoid it.
What's more telling is that all of his lawyers think his testimony won't be helpful.
The issue here is that they guy might not make a good witness.
All we can do is guess.
If the OP is concerned for the guy, he might talk to ten lawyers in the county.
Ask them, see what they advise, and WHY.

 

[Nicarlov]

Consider this.
Anyone on that jury, well MOST people on that jury will know the history of that case.
Testifying, even if its persuasive, won't help him.

This is simply trial strategy.
Very few defense lawyers believe its helpful for a defendant testify.

Yes, if he testifies, the previous confession might come in.
That's a crapshoot, and most lawyers would avoid it.
What's more telling is that all of his lawyers think his testimony won't be helpful.
The issue here is that they guy might not make a good witness.
All we can do is guess.
If the OP is concerned for the guy, he might talk to ten lawyers in the county.
Ask them, see what they advise, and WHY.

Since his previous confession/interrogation was thrown out by the 9th circuit as coerced, can the state still use the confession if the defendant wants to testify? Where I am going with this, is Johnathan is trying to determine if the trial lawyer mislead him stating that if he testifies the state could bring in the interrogation/confession. He is trying to determine if the lawyer misled him. If the confession cannot be admissible at any level, then is this grounds for an appeal?

 

[army judge]

Since his previous confession/interrogation was thrown out by the 9th circuit as coerced, can the state still use the confession if the defendant wants to testify? Where I am going with this, is Johnathan is trying to determine if the trial lawyer mislead him stating that if he testifies the state could bring in the interrogation/confession. He is trying to determine if the lawyer misled him. If the confession cannot be admissible at any level, then is this grounds for an appeal?

The answer is it DEPENDS.
The trial judge determines, in consultation with counsel, what comes in. However, the trial judge ultimately rules things in, or out!!!

Let's say John does testify. He's trying to thread a needle. The prosecutor will attempt to get him to slip, opening the way to bring the previous confession in.

That's why a lawyer would recommend a defendant NOT testify. It's strategic. If the client persists, the lawyer could ask the judge to allow her or him from the case. Or, the lawyer could decide to "grin and bear it".

If I were John's lawyer, I'd advise him not to testify. I wouldn't resign, if he chose to testify. I'd simply try to defend him despite the damage his testimony might cause.

 

[Nicarlov]

The answer is it DEPENDS.
The trial judge determines, in consultation with counsel, what comes in. However, the trial judge ultimately rules things in, or out!!!

Let's say John does testify. He's trying to thread a needle. The prosecutor will attempt to get him to slip, opening the way to bring the previous confession in.

That's why a lawyer would recommend a defendant NOT testify. It's strategic. If the client persists, the lawyer could ask the judge to allow her or him from the case. Or, the lawyer could decide to "grin and bear it".

If I were John's lawyer, I'd advise him not to testify. I wouldn't resign, if he chose to testify. I'd simply try to defend him despite the damage his testimony might cause.

I want to thank you all for your recommendations and information. He was hoping that this would be a good appeal item, but it sounds like it isn't. I have one last question. A few months ago the Supreme Court ruled that juveniles cannot receive life sentences for a murder they committed as juveniles. If this is true would this be grounds for an appeal?

 

[army judge]

I want to thank you all for your recommendations and information. He was hoping that this would be a good appeal item, but it sounds like it isn't. I have one last question. A few months ago the Supreme Court ruled that juveniles cannot receive life sentences for a murder they committed as juveniles. If this is true would this be grounds for an appeal?

It depends in what you infer the meaning of JUVENILE to mean.


The Supreme Court ACTUALLY said in their ruling sometime in June of 2012 was that juveniles convicted of murder cannot be subject to a mandatory sentence of life imprisonment without the possibility of parole.

Currently only twenty nine US states have such laws.

The SUPREMES went on to say in Miller v. Alabama and later in the Jackson v. Hobbs ruling, building on a decision two years prior that juveniles could not be sentenced under any circumstances to life imprisonment without the possibility of parole for non-homicide offenses.

Plus, even when convicted of murder, the SUPREMES further said, judges must be allowed to take a juvenile's age into account (along with other relevant circumstances) in deciding the appropriate punishment.

The SUPREMES noted, moreover, that "appropriate occasions for sentencing juveniles to this harshest penalty will be uncommon."

That means the SUPREMES didn't outlaw such a sentence.

The SUPREMES did outlaw LIFE SENTENCES for Juveniles who didn't kill as Unconstitutional!

In Graham v. Florida, the U.S. struck down as unconstitutional the imposition of a life without parole sentence on a juvenile offender who did not commit homicide.

Although the court found that the state need not guarantee the offender eventual release, it held that if such a sentence is imposed on a juvenile it must provide him or her with some realistic opportunity to obtain release before the end of that term.

So, in a word, YES, an appeal along the grounds you posit MIGHT be possible. That assumes, he isn't time barred, or the appellate relief hasn't previously been waived or attempted.

I'm thinking if he's a high profile defendant, ALL of this would have been broached, if not litigated previously.

Good luck.

 

[Nicarlov]

It depends in what you infer the meaning of JUVENILE to mean.


The Supreme Court ACTUALLY said in their ruling sometime in June of 2012 was that juveniles convicted of murder cannot be subject to a mandatory sentence of life imprisonment without the possibility of parole.

Currently only twenty nine US states have such laws.

The SUPREMES went on to say in Miller v. Alabama and later in the Jackson v. Hobbs ruling, building on a decision two years prior that juveniles could not be sentenced under any circumstances to life imprisonment without the possibility of parole for non-homicide offenses.

Plus, even when convicted of murder, the SUPREMES further said, judges must be allowed to take a juvenile's age into account (along with other relevant circumstances) in deciding the appropriate punishment.

The SUPREMES noted, moreover, that "appropriate occasions for sentencing juveniles to this harshest penalty will be uncommon."

That means the SUPREMES didn't outlaw such a sentence.

The SUPREMES did outlaw LIFE SENTENCES for Juveniles who didn't kill as Unconstitutional!

In Graham v. Florida, the U.S. struck down as unconstitutional the imposition of a life without parole sentence on a juvenile offender who did not commit homicide.

Although the court found that the state need not guarantee the offender eventual release, it held that if such a sentence is imposed on a juvenile it must provide him or her with some realistic opportunity to obtain release before the end of that term.

So, in a word, YES, an appeal along the grounds you posit MIGHT be possible. That assumes, he isn't time barred, or the appellate relief hasn't previously been waived or attempted.

I'm thinking if he's a high profile defendant, ALL of this would have been broached, if not litigated previously.

Good luck.

Thank you for your response and assistance. does anyone know of someone that will do Pro-Bono work?

 

[army judge]

Thank you for your response and assistance. does anyone know of someone that will do Pro-Bono work?

ALL attorneys AGREE to do pro bono work.
You have to approach them, and ask.