Petition for Writ of Certiorari — Ari Misha Liggett, Petitioner v. Colorado

No.

IN THE

Supreme Court of the United States

ARI MISHA LIGGETT,

Petitioner

v.

STATE OF COLORADO,

Respondent.

On Petition For A Writ Of Certiorari To

The Supreme Court of Colorado

PETITION FOR A WRIT OF CERTIORARI

ERIC A. SAMLER

Counsel of Record

SAMLER AND WHITSON, PC

1600 Stout Street, Ste 1400

Denver, CO 20001

(303) 670-0575

Eric@SamlerandWhitson.com

Attorney for Petitioner

QUESTION PRESENTED

Thirty-three years ago, in James v. Illinois, 493 U.S. 307 (1990), this Court ruled

that the impeachment exception to the exclusionary rule allows the prosecution in

a criminal proceeding to introduce illegally obtained evidence to impeach the

defendant's own testimony, but not to impeach the testimony of all defense

witnesses. Over a vigorous dissent, the Colorado Supreme Court ruled that the

prosecution may use as substantive evidence a defendant's unconstitutionallyobtained statements to rebut the defendant's insanity defense — even if the

defendant does not testify.

The question presented is:

Whether the Colorado Supreme Court’s radical

expansion of the narrow impeachment exception this

Court adopted in Harris v. New York, 401 U.S. 222

(1971) and expressly limited in James v. Illinois is

inconsistent with the balance of values underlying

this Court’s previous applications of the exclusionary

rule?

i

TABLE OF CONTENTS

Question Presented ....................................................................... i

Table of Contents ........................................................................ iii

Table of Authorities .................................................................... iv

Petition for a Writ Of Certiorari .................................................. 1

Opinions and Order Below ........................................................... 1

Jurisdiction................................................................................... 1

Statement regarding In Forma Pauperis Status ........................ 1

Constitutional and Statutory Provisions Involved. .................... 1

Introduction .............................................................................. 2

Statement of the Case

I. Ari’s NGRI Defense was viable,

and it was his only defense ................................................ 4

II. The District Court proceedings .......................................... 6

III. The Appeal ......................................................................... 7

Reasons For Granting the Petition ....................................... 8

I.

The Colorado Supreme Court did not scrupulously

respect the narrow boundaries of the

impeachment exception to the exclusionary rule

this Court adopted in James v. Illinois,

493 U.S. 307 (1990) .......................................................... 9

II. The Colorado Supreme Court stands alone .................... 14

III. The Colorado Supreme Court’s ruling offends

the balance of values underlying the

exclusionary rule ............................................................. 18

Conclusion .................................................................................... 21

APPENDIX (filed separately)

Appendix A

Opinion, Liggett v. People, 2023 CO 22,

529 P.3d 113 (Colo. 2023)(Liggett IV) ...........................

App.1

Appendix B

Trial Court’s Decision, People v. Liggett,

ii

(Arapahoe County, Colorado Dist. Ct. No. 12-2253)

(Oct. 14, 2014) ............................................................. App. 19

Appendix C

Opinion, People v. Liggett, 2021 CO 51,

492 P.3d 356 (Colo. App. 2021)(Liggett III) .................. App. 27

Appendix D

Opinion, People v. Liggett, 2018 COA 94M,

490 P.3d 405 (Colo. App. 2018)(Liggett II).................... App. 36

Appendix E

Opinion, People v. Liggett, 2014 CO 72,

334 P.3d 231 (Colo. 2014)(Liggett I).............................. App. 45

TABLE OF AUTHORITIES

CASES

California v. Trombetta, 467 U.S. 479, 485 (1984) ......................... 20

Chambers v. Mississippi, 410 U.S. 284 (1973) ............................... 20

Crane v. Kentucky, 476 U.S. 683, 690 (1986). ................................ 20

Davis v. Alaska, 415 U.S. 308 (1974) .............................................. 20

Dunlap v. People, 173 P.3d 1054 (Colo. 2007) ................................ 13

Harris v. New York, 401 U.S. 222 (1971) .......................... 10,12,16,17

James v. Illinois, 493 U.S. 307 (1990) ........................................ passim

Kansas v. Ventris, 556 U.S. 586, 593 (2009) ................................... 11

Liggett v. People, 2023 CO 22,

529 P.3d 113 (Colo. 2023)(Liggett IV) ............................ 1,8,9,13,14,20

Michigan v. Harvey, 494 U.S. 344, 351 (1990) ............................... 12

Miranda v. Arizona, 384 U.S. 436 (1966) ........................ 6,9,12,15-18

iii

Oregon v. Elstad, 470 U.S. 298, 307 (1985) .................................... 12

Oregon v. Hass, 420 U.S. 714 (1975) ......................................... 10,17

People v. Edwards, 217 Cal. Rptr. 3d 782

(Cal. Ct. App. 2017). ............................................................. 15,16

People v. Liggett, 2014 CO 72,

334 P.3d 231 (Colo. 2014)(Liggett I)............................................. 2

People v. Liggett, 2018 COA 94M,

490 P.3d 405 (Colo. App. 2018)(Liggett II)................................... 8

People v. Liggett, 2021 COA 51,

492 P.3d 356 (Colo. App. 2021)(Liggett III) ................................. 8

State v. DeGraw, 470 S.E.2d 215 (W.Va. 1996) ........................ 16,17

State v. Garcia, 2021 WI 76, ¶ 13 n. 16, 951 N.W. 2d 631,

638 n. 16 (Wis. Ct. App. 2020), affirmed by an equally

divided court, 399 Wis.2d 324, 964 N.W.2d 342 (Mem),

cert. denied, 142 S. Ct. 1442, 212 L. Ed. 2d 538 (2022) ........... 17

State v. Kozlov, 2012 UT App 114,

276 P.3d 1207, 1230 (Utah Ct. App. 2012) ............................ 18

United States v. Havens, 446 U.S. 620 (1980) ............................ 10,12

United States v. Hinckley, 672 F.2d 115 (D.C. Cir. 1982) .............. 14

United States v. Rosales-Aguilar,

818 F.3d 965, 970 (9th Cir. 2016) ........................................ 17,18

Walder v. United States, 347 U.S. 62 (1954) ......................... 10-12,16

Washington v. Texas, 388 U.S. 14, 23 (1967) .................................. 20

Wilkes v. United States, 631 A.2d 880, 889 (D.C. 1993) ............ 15-18

iv

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. V ................................................................. 1,2,10

U.S. Const. amend. VI .................................................................. 1,20

U.S. Const. amend. XIV ............................................................. 1,2,20

STATUTES

28 U.S.C. § 1257(a). ........................................................................... 1

§18-1.3-401(1)(a)(V)(A), C.R.S. ......................................................... 7

§16-8-105.5(4)(b), C.R.S. ................................................................... 7

v

PETITION FOR A WRIT OF CERTIORARI

Petitioner Ari Misha Liggett respectfully petitions this Court for a writ of

certiorari to review the judgment of the Supreme Court of Colorado in this case.

OPINION AND ORDER BELOW

The Supreme Court of Colorado’s opinion (Pet., Appx. A), Liggett v. People,

2023 CO 22, is published at 529 P.3d 113. The written order of the trial court

(Pet., App. B) is unpublished.

JURISDICTION

The judgment of the Supreme Court of Colorado was entered on May 15,

2023. This Court has jurisdiction under 28 U.S.C. § 1257(a).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Fifth Amendment to the U.S. Constitution provides: “No person . . .

shall be compelled in any criminal case to be a witness against himself, nor be

deprived of life, liberty, or property, without due process of law.”

The Sixth Amendment to the U.S. Constitution provides: “In all criminal

prosecutions, the accused shall enjoy the right … to have compulsory process for

obtaining witnesses in his favor.

The Fourteenth Amendment to the U.S. Constitution provides: “No State

shall . . . deprive any person of life, liberty, or property, without due process of

law.”

1

INTRODUCTION

The present case satisfies this Court’s criteria for certiorari. It concerns an

issue upon which there is now a split, with the Colorado Supreme Court on one

side and other state and federal courts –including this Court -- on the other. The

issue was fully preserved and reached on the merits by the Colorado Supreme

Court. And the issue is worthy of this Court’s review—indeed, it is about how to

interpret James v. Illinois, 493 U.S. 307 (1990), which involved a fundamental

question of federal constitutional law.

This case arrives in this Court free of distractions. The salient facts are not

in dispute. There is no dispute about whether Ari Liggett killed his mother. He

did. There is no dispute about whether, during custodial police interrogation, he

requested counsel. He did. There is no dispute that officers, in response to Ari’s

request, that it was “impossible” to have counsel present, nor any dispute about

the fact they continued the interrogation and obtained inculpatory statements in

violation of the Fifth and Fourteenth Amendments to the U.S. Constitution.

Finally, there is no dispute about whether those inculpatory statements were

voluntarily made. The Colorado Supreme Court so ruled, People v. Liggett, 2014

CO 72, 334 P.3d 231 (Colo. 2014)(Liggett I)(Pet., Appx. E), and that issue is not

involved in the narrow question presented here.

The question presented here concerns what limits are placed on a State’s use

of such statements at trial. Again, there is much agreement. Ari Liggett does not

2

dispute that, had he testified, those statements could have been used to impeach his

testimony under the “impeachment exception” to the exclusionary rule.

His

disagreement with the Colorado Supreme Court is its reckless expansion of the

impeachment exception to impeach other witnesses – not solely the defendant.

It is no comfort to Ari Liggett that the Colorado Supreme Court’s

expansion of the impeachment exception applies (so far) only when a defendant

raises a mental status defense such as Colorado’s Insanity Defense – because it is

also undisputed that Mr. Liggett has suffered from severe mental illnesses and

mental disorders for his entire life. His only viable defense was the Not Guilty by

Reason of Insanity defense. When the trial court (and later, the Colorado

Supreme Court) expanded this Court’s impeachment exception to permit, in

NGRI cases, a

State Psychologist to review and base an opinion on the

statements elicited by police after Mr. Liggett indisputably requested counsel, the

court effectively eviscerated Mr. Liggett’s only defense, removing his only hope of

living the rest of his years confined in a treatment facility under Colorado’s

insanity acquittee commitment statute and instead consigning him to life in

prison without parole.

The Court should grant certiorari.

3

STATEMENT OF THE CASE

I.

Mr. Liggett’s NGRI Defense was viable, and it was his only defense.

Mr. Liggett’s only defense was the Colorado affirmative defense of Not

Guilty by Reason of Insanity (NGRI), and it was legitimate. He had suffered

psychological problems since his birth. Beginning at age three, Ari had been

diagnosed and treated by a lifelong series of physicians, psychologists,

psychiatrists, developmental experts, and other professionals.

Ari received many diagnoses over the years and many medicinal regimens

had been tried to combat his mental disorders. While there was an occasional lull

in Ari’s behavioral symptoms, the respite was always short lived. Ari drifted

through his years with no apparent emotional connection to the world around

him. He had no relationships with anyone outside of his mother, father, and

sister.

Family members testified that while Ari could “hold it together” for short

periods of time enough to obtain a driver's license or navigate public

transportation, he was not grounded in reality and that his thought process was

not logical. When Ari was not consistently taking his medication or when the

medication he was taking was no longer working, he would pace rapidly, talk to

himself, talk to people who were not there, and laugh as if he were in a

“completely different world.” 1

1

That is, by all accounts, how he remains to this day in his prison cell.

4

Despite these severe psychological issues, Ari graduated from high school

and enrolled in college about an hour away from his family home. He was

assigned to a dormitory with a roommate, but that situation quickly

disintegrated. In an attempt to keep him in school, his parents set him up with

his own apartment. Because of concerns his parents had with his ability to cope

and care for himself, they eventually called police for a welfare check. When they

entered the apartment, they discovered broken glass everywhere, there were

propane tanks lined up everywhere, the place was a “mess” and Ari had not

showered in some time. His father described Ari as being “scary looking.” He was

taken to a mental health facility for a 72-hour hold. When released, he was

brought home to live with the family again.

Family members testified that Ari lived in his own fantasy world. He

fixated on ideas that were not true. He believed his mother had Munchausen by

proxy and that is why she thought he was ill, when there was nothing wrong with

him. He believed he was sexually abused as a child. Ari would pace around the

house continuously muttering to himself or sit on the sofa but suddenly burst out

laughing.

By September 2012, Ari’s symptoms were getting worse. He would stand

and stare at the walls for hours, accuse family members of “shape shifting” and

pace through the house at a high-speed, contorting his body as if he were

interacting with someone. It was about a month later that he poisoned his mother

5

with cyanide, dismembered her body, packed her remains into plastic containers,

put the plastic containers in the trunk of her car, and drove erratically around

until two days later when police found and arrested him, took him to the station,

and obtained statements in violation of Miranda v. Arizona, 384 U.S. 436 (1966).

On the way, Ari told officers it was all right for him to break the law because

people were “demons” who could “shape change” but he could not. He said “the

world” was against him and asked whether the fact he is insane could prevent his

arrest.

II.

The District Court Proceedings.

Mr. Liggett entered a plea of NGRI and was evaluated by an expert

employed by the State of Colorado, Dr. Hal Wortzel. Dr. Wortzel, relying in part

on Mr. Liggett’s suppressed statements (before they were ruled inadmissible

because of the Miranda violation), found Mr. Liggett to be legally sane. Because

Dr. Wortzel had relied on the suppressed statements, a new evaluation was

ordered with instructions that the second evaluator should not rely on those

statements. The second evaluator reached the same conclusion.

Mr. Liggett moved to prevent the use of the first evaluation by Dr. Wortzel.

The court ruled that the prosecution could not present Dr. Wortzel’s evaluation in

its case in chief but if Mr. Liggett presented evidence of his mental condition, the

6

People would be permitted in rebuttal to present Dr. Wortzel’s testimony and

introduce the suppressed statements.

Even though an entire lifetime of experts would have been available to

support his insanity defense, Mr. Liggett’s attorneys could not present them. Mr.

Liggett was left to develop this defense through the cross-examination of family

members, which was no match for the expert testimony of the prosecution’s

second evaluator. Neither Mr. Liggett nor Dr. Wortzel testified.

The jury rejected the NGRI defense and found Mr. Liggett guilty. In

Colorado, his first-degree murder conviction means imprisonment in the Colorado

Department of Corrections, i.e. in prison for his natural life with no possibility for

parole. See §18-1.3-401(1)(a)(V)(A), C.R.S.

Had Mr. Liggett been found not guilty by reason of insanity, he would have

been committed to the custody of the Colorado Department of Human Services

and held in a mental hospital for treatment for his natural life, provided that he

continues to meet commitment criteria. See §16-8-105.5(4)(b), C.R.S.

III.

The Appeal.

Mr. Liggett’s public defender filed an appeal on his behalf. Within months

of

his

incarceration,

however,

his

symptoms

had

taken

over.

When

(communicating largely in “word salad”) he asked his appointed appellate

attorneys to dismiss his appeal so he could pursue “other remedies,” his attorneys

asked the Colorado Court of Appeals (the intermediate court) for a limited

7

remand to allow the lower court to make a factual determination of whether Mr.

Liggett was competent to waive counsel and dismiss his appeal. In Liggett II, the

Court of Appeals granted the request, and the trial court entered an order finding

Mr. Liggett not competent to make such a waiver. People v. Liggett, 2018 COA

94M, 490 P.3d 405 (Colo. App. 2018)(Liggett II) (Pet., Appx. D). The Court of

Appeals ordered steps be taken to “restore Mr. Liggett to competency” but ruled

that the appeal should go forward unless Mr. Liggett could make a knowing

voluntary and intelligent waiver of counsel and his right to appeal. Mr. Liggett

remained incompetent to proceed throughout the appellate process and remains

in that status today.

In Liggett III, the Colorado Court of Appeals affirmed the conviction. It

found no error in the trial court allowing the prosecution to use the doctor's

testimony and sanity opinion to rebut any psychiatric evidence that defendant

presented to show his insanity at the time of the killing, even though the doctor’s

opinions were based in part on the statements Mr. Liggett made after his request

for counsel during interrogation was denied by law enforcement. People v. Liggett,

2021 COA 51, 492 P.3d 356 (Colo. App. 2021)(Liggett III) (Pet., Appx. C).

In Liggett IV, the Colorado Supreme Court affirmed the Colorado Court of

Appeals and ruled that, when a defendant enters a NGRI plea and presents any

evidence supporting that defense, he opens the door to the admission of his

8

voluntary but non-Miranda-compliant statements. Liggett v. People, 2023 CO 22,

529 P.3d 113 (Colo. 2023) (Liggett IV). (Pet., Appx. A).

REASONS FOR GRANTING THE PETITION

One of the crucial functions served by the exclusionary rule is to deter

unconstitutional police conduct during police interrogations. By barring the use of

illegally obtained statements of a defendant, courts reduce the temptation for

police officers to skirt their constitutional obligation to honor an accused’s request

for counsel during a custodial interrogation.

By definition, application of the exclusionary rule deprives the prosecution

of probative evidence. This deprivation is tolerated in order to disincentivize

future police misconduct and to safeguard the most fundamental of rights

possessed by citizens. Here, the exclusionary rule was needed to protect two of

those fundamental rights: an accused’s right, when confronted alone with police,

to have an attorney during police questioning, and the accused’s right to present

a defense at trial.

The Colorado Supreme Court’s failure to protect either of these

fundamental rights, by effectively adopting a “mental health” exception to the

exclusionary rule and radically reshaping this Court’s jurisprudence, requires

this Court’s intervention.

9

I.

The Colorado Supreme Court did not scrupulously respect the

narrow boundaries of

the impeachment exception to the

exclusionary rule this Court adopted in James v. Illinois, 493 U.S.

307 (1990).

Despite the important role played by the exclusionary rule in discouraging

and ultimately preventing police misconduct in violation of an accused’s Fifth

Amendment right to remain silent, this Court has recognized a limited exception.

The “impeachment exception” prevents a defendant from exploiting the

exclusionary rule as a shield while presenting false testimony at trial. The

“impeachment exception” has been narrowly tailored, though, to preserve the

fundamental values protected by the exclusionary rule. The defining feature of

the impeachment exception is that the unconstitutionally obtained statements

are admissible only to directly contradict the defendant’s own testimony. Walder

v. United States, 347 U.S. 62 (1954); Harris v. New York, 401 U.S. 222 (1971);

Oregon v. Hass, 420 U.S. 714 (1975); United States v. Havens, 446 U.S. 620

(1980). This balance respects the core protection afforded by the Self–

Incrimination Clause -- the prohibition on compelling a criminal defendant to

testify against himself at trial. Thus, statements obtained unlawfully when police

refuse to provide counsel as requested during the interrogation are admissible for

impeachment only, not as substantive rebuttal evidence.

In James v. Illinois, 493 U.S. 307 (1990), this Court rejected the argument

that defense witnesses—rather than the defendant himself—can be impeached

with illegally obtained evidence. This Court reasoned that such an expansion of

10

the “impeachment exception” would go too far in dissuading defendants “from

presenting their best defense and sometimes any defense at all— through the

testimony of others.” Id. at 314-315. While a defendant should not be allowed to

exploit exclusion of evidence to present perjury, this Court ruled, the State should

not be allowed to “brandish such evidence as a sword with which to dissuade

defendants from presenting a meaningful defense through other witnesses.” Id. at

317.

This Court has scrupulously guarded this critical distinction between

impeachment and substantive evidence: permitting unconstitutionally obtained

statements to be used as impeachment but barring their use as substantive

evidence. Almost thirty years after James v. Illinois, Justice Scalia reiterated the

importance of the limitations on the impeachment exception: it gives officers a

“significant incentive to ensure that they and their informants comply with the

Constitution's demands, since statements lawfully obtained can be used for all

purposes rather than simply for impeachment.” Kansas v. Ventris, 556 U.S. 586,

593 (2009).

For nearly 70 years, this Court has followed a simple, categorical rule

applicable to evidence such as Mr. Liggett 's illegally obtained statements. If the

government obtains evidence illegally, then the illegally obtained evidence is

inadmissible as substantive evidence. This exclusionary rule applies equally to

physical evidence (as in Walder v. United States, supra, 347 U.S. at 65) as it does

11

to a defendant's custodial statements (as the Court specifically stated in Oregon

v. Elstad, 470 U.S. 298, 307 (1985)). In Harris and Hass, the Court recognized a

limited exception to the exclusionary rule, allowing the prosecution to impeach a

defendant's perjurious testimony with illegally obtained statements, but (as it

had in Walder) reiterated that the illegally obtained statements still are

“unavailable to the prosecution in its case in chief.” Harris, 401 U.S. at 225-26;

Hass, 420 U.S. at 722-24. Harris even recognized that the categorical bar on

introduction of illegally obtained evidence during the prosecution's case-in-chief is

the source from which the exclusionary rule's “deterrence flows.” 401 U.S. at 225.

In Havens, the Court again applied the impeachment exception while reiterating

(as it had in Walder, Harris, and Hass) that “evidence that has been illegally

obtained ... is inadmissible on the government's direct case ...” 446 U.S. 620, 628

(1980). In Elstad, the Court found Miranda inapplicable to the case facts, but

stated that even “voluntary statements taken in violation of Miranda must be

excluded from the prosecution's case.” 470 U.S. at 307 (emphasis original). In

Michigan v. Harvey, the Court again confirmed that the prosecution can impeach

a defendant's false or inconsistent testimony with illegally obtained evidence, but

(similar to Walder, Harris, Hass, Havens, and Elstad) also confirmed the

steadfast rule that the “prosecution must not be allowed to build its case against

a criminal defendant with evidence acquired in contravention of constitutional

12

guarantees and their corresponding judicially created protections.” 494 U.S. 344,

351 (1990). 2

Colorado Supreme Court Justices Márquez and Hart agree. In their strong

dissent, they meticulously review this Court’s development of the impeachment

exception and articulate the reasons why the majority’s ruling “distorts the

impeachment exception to allow the prosecution to use the defendant’s illegally

obtained statements made to police as substantive evidence to rebut the

defendant’s insanity defense.” (Pet., Appx. A, ¶¶ 66, 68, 83-90). The dissent traces

the error back to an earlier Colorado Supreme Court case, Dunlap v. People, 173

P.3d 1054 (Colo. 2007) and takes issue with the holding and, more important, the

later misinterpretation of that holding. (Pet., Appx. A, ¶¶ 77-90). Rebuttal

evidence, the dissent accurately explains, is part of a party’s case in chief. (Pet.,

Appx. A, ¶78). Instead of correcting the errors the Colorado Supreme Court made

in Dunlap and restoring the proper contours of the impeachment exception, the

Liggett majority “repeat[s] and compound[s] its errors,” (Pet., Appx. A, ¶83), and

causes “the precise harm” foretold in James:

By ignoring the James court’s ‘carefully weighed’ limitations on

the impeachment exception, the majority’s ruling enables the

precise harm that those limitations were designed to prevent:

dissuading defendants from presenting their best defense or

from presenting any defense at all. In the majority’s own words,

this is exactly what happened in this case.

In Colorado, once any evidence of insanity is introduced, the Government has the

burden of proving sanity beyond a reasonable doubt. § 16-8-105.5, C.R.S.

2

13

(Pet., Appx. A, ¶90) (emphasis added).

II.

The Colorado Supreme Court stands alone.

Until now, lower courts have had no trouble understanding and applying

the James Rule.

In United States v. Hinckley, 672 F.2d 115 (D.C. Cir. 1982), the

government advanced the same “testimony-by-proxy” argument adopted by the

Colorado Supreme Court – that if Mr. Liggett presented any evidence on his

sanity, the Government should then be allowed to use his illegally obtained

statements to rebut that defense. In Hinckley, supra, the government argued that

“if in the course of an insanity plea the defense puts forth testimony by expert

witnesses on the defendant's mental state, that testimony is tantamount to the

defendant taking the stand himself” and therefore the illegally obtained evidence

is, in effect, “impeachment” evidence. Id. at 134. Saying “this theory cuts too

wide a swath,” the D.C. Circuit soundly rejected that argument:

We … find no reason for countenancing a broad

exception to the Supreme Court's clearly enunciated

policy against the use of tainted evidence simply

because that evidence will be used to counter an

insanity defense. Were we to curtail the exclusionary

rule in the drastic manner the government urges, we

would provide little or no deterrence of constitutional

violations against defendants whose sanity is the

principal issue in the case. The government would be

able, under the guise of rebuttal, to use any illegally

obtained evidence relevant to the principal issue in the

case—insanity.

14

Ibid. The Court also found no discernible reason the insanity defense should be

“single[d] out … for application of the testimony-by-proxy theory” to curtail the

exclusionary rule while other affirmative defenses are not.

Other jurisdictions addressing the use of a defendant’s statements

obtained in violation of Miranda have placed strict limits on the prosecution’s use

of those statements, even when a mental status defense is raised: the narrow

impeachment exception must involve statements made by a defendant that do, in

fact, contradict or impeach other statements made by the defendant.

The

Miranda-noncompliant statements cannot be used as rebuttal evidence.

In Wilkes v. United States, 631 A.2d 880, 889 (D.C. 1993) the defendant

raised an NGRI defense. The defendant’s psychiatric expert testified about her

opinion of the defendant's sanity. She based her opinions on what the defendant

told her which differed dramatically from the defendant’s lengthy, detailed

unwarned custodial statements. The Court let the psychiatrist be cross-examined

on those unwarned statements, reasoning that the excluded statements directly

contradicting what Wilkes had told the psychiatrist provided the most relevant

information available to probe the factual basis of the doctor’s opinion.

The California Court of Appeals reached the same conclusion. People v.

Edwards, 217 Cal. Rptr. 3d 782, 789 (Cal. Ct. App. 2017). There, the California

Court clarified that the defendant’s unwarned statements were not being used as

substantive evidence of guilt but were being used to impeach the defendant’s

15

statements to the psychiatrist and thus promoted “the same truth-seeking

function of a criminal trial as the impeachment exception of a defendant who

testifies” by “prevent[ing] the defendant from turning the exclusionary rule into a

‘a shield against contradiction of his untruths.’” Ibid (quoting Harris, supra, 401

U.S. at 224 (quoting Walder v. United States, supra, 347 U.S. at 65)). The court

determined that “admission of the suppressed statements [would not] have a

chilling effect on a defendant’s ability to present a defense” because “[d]efendants

could avoid impeachment of the testimony of expert witnesses by not providing

these witnesses with statements that contradict the suppressed statements.”

Edwards, supra, 217 Cal. Rptr. 3d at 789–90.

The Supreme Court of Appeals of West Virginia placed similar limits on

the use of a defendant's voluntary but illegally obtained statements. In State v.

DeGraw, 470 S.E.2d 215 (W.Va. 1996), the defendant, whose statements to the

police were suppressed because of a Miranda violation, raised a diminished

capacity defense. As in Wilkes, the defendant told his expert he had no memory of

the offense but told the police otherwise. The court allowed the expert to be crossexamined with these illegally obtained statements. The Court noted that, while

the James decision does not let the prosecution use a defendant’s illegally

obtained statements to impeach the credibility of a defense witness, here the

statements were being used to “impeach the contradictory statements made to

16

the witness.” DeGraw, 470 S.E.2d at 222. The same result was reported in a

persuasive opinion issued by the Wisconsin Court of Appeals:

Courts have made a narrow exception to the

Harris/James rule in cases where the defendant uses

an insanity defense. In these types of cases, the

psychiatrist's

testimony/opinions

are

based

on

statements made to him or her by the defendant;

therefore, the statements that are actually being

impeached are those of the defendant and not the

witness.

State v. Garcia, 2021 WI 76, ¶ 13 n. 16, 951 N.W. 2d 631, 638 n. 16 (Wis. Ct. App.

2020), affirmed by an equally divided court, 399 Wis.2d 324, 964 N.W.2d 342

(Mem), cert. denied, 142 S. Ct. 1442, 212 L. Ed. 2d 538 (2022) (citing United

States v. Rosales-Aguilar, 818 F.3d 965, 970 (9th Cir. 2016) and Wilkes, 631 A.2d

at 889-90).

In Rosales-Aguilar, supra, the defendant made certain statements to a

retained psychiatrist who, relying on those statements, concluded that the

defendant did not have the necessary mens rea to be convicted of the charged

offense. The government sought to introduce the defendant’s voluntary but nonMiranda-compliant statements which contradicted the statements the defendant

made to the psychiatrist. The district court allowed the statements to be

introduced. In upholding the district court’s ruling, the Ninth Circuit held that

the situation before it was closer to Harris v. New York and Oregon v. Haas than

it was to James v. Illinois:

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Insofar as Rosales's statements to Dr. Carroll

differ from the ones he made to the Border Patrol

officers, the inconsistencies cast doubt on his veracity,

not Dr. Carroll's. They were thus properly admitted to

impeach Rosales's account of the events under dispute.

Rosales-Aguilar, 818 F.3d at 970. See also State v. Kozlov, 2012 UT App 114, ¶ 72,

276 P.3d 1207, 1230 (Utah Ct. App. 2012):

We agree with the District of Columbia Court of

Appeals [in Wilkes, supra], which determined that when

a defendant presents an expert opinion that ‘is based, to

any appreciable extent, on statements made to the

expert by the defendant,’ id., the prosecution may use

the defendant's statements taken in violation of

Miranda to challenge that expert's opinion.

Every jurisdiction that has addressed this issue has reached a result

contrary to the one reached by the Colorado Supreme Court. Every jurisdiction

addressing the issue -- except Colorado -- limits the use of a defendant’s illegally

obtained statements to counter other statements by the defendant that contradict

those earlier statements. Only Colorado has held that by presenting evidence

supporting a mental health defense the prosecution may then introduce the

defendant’s illegally obtained statements to rebut that defense.

III.

The Colorado Supreme Court’s ruling offends the balance of values

underlying this Court’s previous applications of the exclusionary rule.

“The occasional suppression of illegally obtained yet probative evidence

has long been considered a necessary cost of preserving overriding constitutional

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values.” James v. Illinois, supra, 493 U.S. at 311. The Colorado Supreme Court’s

opinion offends the delicate balance struck in James. As recognized in James,

expanding the class of impeachable witnesses from the “defendant alone to all

defense witnesses would create different incentives affecting the behavior of both

defendants and law enforcement officers.” Id., at 313.

This Court need look no further than the facts of Ari Liggett’s case to

recognize that the Colorado Supreme Court’s expanded exception “significantly

undermine[s] the deterrent effect of the general exclusionary rule.” Id., at 313-14.

The specific misconduct to be deterred is the police lying to an accused who asks

for counsel during a police interrogation, telling him “it’s impossible” to have

counsel with him during questioning. This was no technical violation. It was a

transgression that struck at the heart of the relationship between an accused in a

police interrogation room and his interrogators. This is exactly the type of

egregious misconduct that the exclusionary rule exists to deter.

The Colorado Supreme Court’s exception not only gives these bad actors a

pass; it signals to future potential violators that, when dealing with a person who

has an obvious mental illness, police may throw the constitution out the window.

Arguably, an accused who has a mental illness is in greater need of protection,

yet the Colorado Supreme Court ensures that these suspects are to be treated as

the least among us when it comes to compliance with their fundamental rights

during custodial police interrogation.

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Another foundational principle offended by Colorado’s too-wide swath is

the defendant’s fundamental right for “a meaningful opportunity to present a

complete defense.” California v. Trombetta, 467 U.S. 479, 485 (1984). As this

Court explained some thirty-seven years ago, this constitutional right has deep

roots:

Whether rooted directly in the Due Process Clause of

the Fourteenth Amendment, Chambers v. Mississippi, 410

U.S. 284 (1973) or in the Compulsory Process or

Confrontation clauses of the Sixth Amendment,

Washington v. Texas, 388 U.S. 14, 23 (1967); Davis v.

Alaska, 415 U.S. 308 (1974), the Constitution guarantees

criminal defendants ‘a meaningful opportunity to present

a complete defense.’ California v. Trombetta, [supra].

Crane v. Kentucky, 476 U.S. 683, 690 (1986). The fear that an accused facing a

“testimony-by-proxy” impeachment exception would be chilled from presenting

their best defense was a paramount concern to the James Court: “expanding the

impeachment exception to encompass the testimony of all defense witnesses

likely would chill some defendants from presenting their best defense and

sometimes any defense at all—through the testimony of others.” James v. Illinois,

at 314-315. As the thoughtful dissent of Justices Márquez

and Hart well

articulates, the Colorado Supreme Court’s majority opinion “all but eviscerates

the protections of the Fifth Amendment and the exclusionary rule for defendants

who rely on mental capacity defenses.” (Pet., Appx. A, ¶ 65; see also id., ¶ 89).

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When defining the “precise scope” of the exclusionary rule, courts “must

focus on systemic effects of proposed exceptions to ensure that individual liberty

from arbitrary or oppressive police conduct does not succumb to the inexorable

pressure to introduce all incriminating evidence, no matter how obtained, in each

and every criminal case.” James v. Illinois, at 319–20. The Colorado Supreme

Court failed to heed this bedrock rule. Its radical departure threatens not only

Ari Liggett, but future citizens who may someday find themselves alone in an

interrogation chamber, seeking but denied counsel by their police interrogators.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted,

ERIC A. SAMLER

Counsel of Record

SAMLER and WHITSON, PC

1600 Stout Street, Suite 1400

Denver, CO 20001

(303) 670-0575

Eric@SamlerandWhitson.com

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