Opposition Brief — Wrisley v. Crowe

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Nos: Sin 10-377, 10-420 | s

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In The “iy te Ng

Supreme Court of the Gnited States -_

MARK WRISLEY, et al.,

Petitioners,

Vv.

MICHAEL CROWE, et al.,

Respondents.

¢

CHRISTOPHER McDONOUGH,

Petitioner,

Vv.

MICHAEL CROWE, et al.,

Respondents.

¢

LAWRENCE N. BLUM,

Petitioner,

v.

MICHAEL CROWE, et al.,

Respondents.

*

On Petition For A Writ Of Certiorari To The United

States Court Of Appeals For The Ninth Circuit

&

CONSOLIDATED BRIEF IN OPPOSITION

OF AARON HOUSER, MARGARET SUSAN HOUSER,

AND GREGG HOUSER

td

BOUDREAU WILLIAMS LLP SCHOVILLE & ARNELL, LLP

JON R. WILLIAMS, ESQ. DENNIS A. SCHOVILLE, ESQ.

Counsel of Record Louis G. ARNELL, Esq.

666 State Street 2404 Broadway

San Diego, CA 92101 San Diego, CA 92101

(619) 238-0370 (phone) (619) 232-9901 (phone)

(619) 238-8181 (facsimile) (619) 232-9904 (facsimile)

williams@bwlawllp.com

Attorneys for Respondents

Aaron Houser, Margaret Susan Houser, and Gregg Houser

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

Whether Petitioners have presented compelling

reasons to grant the petitions, where the Ninth

Circuit Court of Appeals correctly held on the record

before it that:

1. Use of confessions coerced from juveniles and

later introduced in pre-trial proceedings during the

course of the “criminal case” violate the Fifth

Amendment right against self-incrimination;

2. A police conspiracy to intentionally violate a

juvenile’s Constitutional rights, with the aim of

coercing a confession no matter the human toll,

sufficiently “shocks the conscience” to support a

violation of the Fourteenth Amendment’s due process

protections;

[2]

3. A clinical psychologist, retained by police to

devise strategies and techniques to “psychologically

break” juvenile criminal suspects during coercive

interrogations, may be held liable for conspiracy to

violate those juveniles’ constitutional rights.

il

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ..............0...0ceee eee i

Be I vei cassssnsecesreconsescesevosessvacens ii

Te FE FART CREE BI onissccsccesceecccssevesorsovensens Vv

BT IE icisrsnseseisabessussescstonsesecscaes ]

II. STATEMENT OF THE CASE...................... 2

I 05st cu pngnuvenxoasngnicdeeravededs

B. January 22, 1998: The Police Interrogate

Aaron Houser at His Home................... 8

C. January 27, 1998: The Police Interrogate

Aaron Houser Again at His Home and

at the Escondido Police Department.... 8

D. January 27, 1998 to January 28, 1998:

The Police Interrogate Joshua Treadway

For 13 Hours Overnight....................... 9

E. The Ruse Phone Call to Aaron.............. 10

F. February 10, 1998: The Police Interrogate

Joshua For Another 12 Hours............... 11

G. February 11, 1998: The Police Arrest

Aaron at School, Search His Locker

and Home, and Interrogate Him For a

TNE occu evan. Za Shay tha danssbeaaunewieceds 12

H. Use of the Boys’ Statements in the

Criminal Cases Against Them.............. 14

I. Dismissals of Indictments and Prose-

NN IE NUE gcdakicsscadsccunsdasesseeveuetersacncens 15

ill

TABLE OF CONTENTS — Continued

Page

J. The Boys’ Subsequent § 1983 Action in

I Re IONS voi vcccercesrsesccstoressseascese

K. The Ninth Circuit’s Ruling....................

Ill. REASONS FOR DENYING THE PETI-

COOTER EEE EEE EEE EEE EEE EHH EEE EHH EE

A. Petitioners’ Attempts to Manufacture

Review of Respondents’ Fifth Amendment

Claims Has Recently Been Rejected by

This Court and Should Be Rejected

PRE BHU pens ncticeulatcaten cheap disbennenauproussenas

x

The Alleged Split Between the Circuit

Courts Does Not Warrant This Court’s

Attention at This Time.....................

Bh. ye ee NINE saccccsincenenccccoencs

DDE FOUPCE CATO oo sessccscscescneve:

1 RM OE SNR Giisccisoaconcconnsesicince

Ga Fh NRIs oeccsivseaiescpecedsess

The Compelling Facts of This Case

Make It a Uniquely Poor Vehicle for

Review of the Widespread Application

of Fifth Amendment Protections ........

Petitioners’ Claim That the Ninth

Circuit's Decision Will Have a “Chilling

Effect” on Law Enforcement Activities

Is Supported Neither By Fact Nor

18

27

1V

TABLE OF CONTENTS — Continued

Page

Bb. Petitioners’ Arguments That There Is a

Need to Clarify “Conscience Shocking”

Behavior Under the Fourteenth Amend-

ment Also Fails to Raise an Issue Wor-

thy of This Court’s Review .................... 32

1. This Court’s Decisions Are Replete

with Examples of Verbally Coercive

Interrogations Which Violate the

Fourteenth Amendment................... 32

2. Petitioners’ Companion “Shocks the

Conscience” Arguments Warrant Even

Less Scrutiny by This Court............ 36

C. The Ninth Circuit’s Reversal of Summary

Judgment on the Conspiracy Claim

Asserted Against Blum Was Entirely

Fact-Driven and Therefore Presents No

Legal Issue for This Court to Clarify...... 38

RV, COURIC adie eessenssessccenecessssaneeuaceieeeanae 4]

TABLE OF AUTHORITIES

Page

CASES

Arizona v. Fulminante, 499 U.S. 279 (1991) .............36

Blackburn v. Alabama, 361 U.S. 199 (1960).............36

Buckley v. Fitzsimmons, 509 U.S. 259 (1993)............31

Burrell v. Virginia, 395 F.3d 508 (4th Cir.

ii crisescintscesvecssceverssseses 22, 23, 24, 25, 26

Chavez v. Martinez, 538 U.S. 760 (2003)........... passim

Clement v. City of Glendale, 518 F.3d 1090 (9th

Cooper v. Dupnick, 963 F.2d 1220 (9th Cir.

Dickerson v. United States, 530 U.S. 428 (2000)....... 21

Franklin v. Fox, 312 F.3d 423 (9th Cir. 2002)............39

Gallegos v. Colorado, 370 U.S. 49 (1962).......33, 34, 35

Giuffre v. Bissell, 31 F.3d 1241 (3rd Cir. 1994).......... 21

Haley v. State of Ohio, 332 U.S. 596 (1948).....2, 32, 35

Higazy v. Templeton, 505 F.3d 161 (2nd Cir.

Ne silcs ssisaicsssnsescsseccessesvecssseosonscsseccoseos 27

In re: Dennis H., 19 Cal.App.3d 350 (1971)............... 14

In re: Gault, 387 U.S. 1 (1967)............. 2, 19, 28, 34, 35

Kastigar v. United States, 406 U.S. 441 (1972)......... 19

Marcus W. v. Superior Court, 98 Cal.App.4th

essa dai sesseassssensaesestessevesatcosesccsseessssasens 15

McKinley v. City of Mansfield, 404 F.3d 418

IED co ssccsscscyscesscssccsesscsssescscerovecoveceoeves 26, 31

vl

TABLE OF AUTHORITIES — Continued

Page

Murray v. Earle, 405 F.3d 278 (5th Cir. 2005).....25, 26

People v. Burton, 6 Cal.3d 375 (1971)... eee 13

Ramona R. v. Superior Court, 37 Cal.3d 802

(REI Dn cushes Covengcdatrdectioiis a letndesee nate 14

Reck v. Pate, 367 U.S. 433 (1961)........0...0000.00.2.0........86

Renda v. King, 347 F.3d 550 (3rd Cir. 2003)......20, 21, 22

Richardson v. McKnight, 521 U.S. 399 (1997) ....38, 39

Sornberger v. City of Knoxville, Ill., 434 F.3d

I Ce Gee BD sebecotiecesssetassetecetecen 21, 23, 24, 27

Stoot v. City of Everett, 582 F.3d 910 (9th Cir.

ET ossvcinnsitusenstnlshsesoaewecdttantdnanadsacavasapaes 19, 22, 27, 28

Taylor v. Maddox, 366 F.3d 992 (9th Cir. 2004) ........35

Woods v. Clusen, 794 F.2d 293 (7th Cir. 1986)...........35

CONSTITUTIONAL AND STATUTORY PROVISIONS

OF ke CRE IIIS tidcacccetssocddasuticenentenionions passim

GF Us cele ee etcnscosseciovanadasacbisedviserers anaeenennl passim

Cal. Welf. & Inst. Code § 631 .............0..cscccccccccscceseees 14

OTHER

87 A.L.R.2d 624,

Voluntariness and Admissibility of Minor’s

35

CIIIIIIIIIE 3s::, cocsvaccrsvsencesvenccesss sasatausssveussmmaustseneen 3!

Vil

TABLE OF AUTHORITIES — Continued

Page

82 N.C.L. Rev. 891,

The Problem of False Confessions in the Post-

SEIU IITEET a-aicorsindsececeensasarshadssasasencissoncsoeanbsyintacianeel

30 N.Y.U. Rev.L. & Soc. Change 209,

The Reality of False Confessions — Lessons of

the Central Park Jogger Case ..........6...c00c0eccceeceeeee0 dD

I. INTRODUCTION

There is a climactic scene in the beloved movie

classic, The Wizard of Oz, where Dorothy and her

cohorts return to the Emerald City for an audience

with a powerful Wizard who has promised to deliver

Dorothy to Kansas, a brain to the Scarecrow, a heart

to the Tin Woodsman, and bravery to the Cowardly

Lion. When they finally come face to face with the

Mighty Oz, the apparition blusters, telling them not

to invoke his wrath and to go away. Just then howev-

er, Dorothy's dog ‘Toto pulls aside a curtain, revealing

nothing more than a slight man operating levers that

have only created the illusion of the Wizard. In that

unguarded moment, the Mighty Oz admonishes them

to “pay no attention to the man behind the curtain,”

but is ultimately forced to admit that he is little more

than a balloonist from Kansas.

Like the Mighty Oz, Petitioners have attempted

in their respective petitions to mystify this Court

with the look and feel of great erudition, while con

cealing the humble reality that those petitions pre

sent nothing that has not already been decided by

this Court and uniformly followed by the Circuit

Courts of Appeal. Petitioners also urge this Court to

pay no attention to what lies behind their curtain of

rhetoric and hyperbole, but Respondents pull it back

here to: (A) clarify that no conflict exists among the

Circuit Courts which have actually decided the issue

confronted by the Ninth Circuit here — the use of

coerced confessions in pre-trial proceedings within

the “criminal case” after charges have been filed;

(B) illuminate how psychological torture, leveled

against 14- and 15-year-old boys, has long been

regarded as the basis for a Fourteenth Amendment

due process violation; and (C) explain how uniform

authority holds that private actors who assist in

violating the constitutional rights of others may be

held liable for conspiracy. In doing so, Respondents

remind this Court of its own relevant decisions and

the consistent decisions of the Circuit Courts, all of

which demonstrate why review is not warranted here.

Accordingly, Respondents urge this Court to deny

review in this case where, like that balloonist from

Kansas, Petitioners’ respective petitions are viewed

by this Court for what they really are, and not what

Petitioners have projected them to be.

Il. STATEMENT OF THE CASE

For well over a half century — and in two seminal

decisions, Haley v. State of Ohio, 332 U.S. 596 (1948)

and In re: Gault, 387 U.S. 1 (1967) — this Court has

recognized that juveniles subjected to the strain of

custodial police interrogations are “easy victims of the

law” and as such, “cannot be judged by the more

exacting standards of maturity.” It has done so rea-

soning “that which would leave a man cold and

unimpressed can overawe and overwhelm a lad in his

early teens.” And it is for that very reason that this

Court recognized why “authoritative opinion has cast

formidable doubt upon the reliability and _ trust-

worthiness of ‘confessions’ by children.”

3

Consequently, this Court has mandated that the

police must exercise “the greatest care” in their

interrogations of juveniles — not only to assure that

any admissions are not coerced — but also to guar-

antee that they are “not the product of ignorance of

rights, or of adolescent fantasy, fright or despair.”

Similarly, it has instructed reviewing courts to take

“special care” in scrutinizing the record where a

juvenile’s confession is at issue, especially where the

totality of circumstances suggest that the minor is

“no match for the police in such a contest.”

This case poignantly illustrates the reasons for

the Court’s concern. Indeed, this case is the tragic

tale of the police investigation of the murder of 11-

year-old Stephanie Crowe, who was viciously stabbed

to death in her bedroom by Richard Tuite, a schizo-

phrenic transient with a history of drug use and

violent crime. Within a few short hours leading up to

that murder, Tuite had been menacing an otherwise

quiet neighborhood in rural Escondido, California, in

his search for “Tracy,” an old girlfriend. His activities

understandably prompted several 911 calls to local

police officials from anxious neighbors complaining

about Tuite’s bizarre behavior and attempts to enter

their homes looking for “Tracy.”

When those police officials finally responded in

the late evening hours, they knew Tuite was last seen

banging on the door of a home adjacent to where

Stephanie Crowe lived. Approaching that location

with all lights on his patrol car ablaze, the lone police

officer sent to the scene saw a side door to Stephanie's

house inexplicably close as he approached. But with-

out investigating further, that officer turned around,

concluded that Tuite was simply “gone on arrival,”

and then took himself out of service so he could eat

dinner.

Having so easily evaded that police officer, Tuite

made his way through Stephanie’s house and into her

bedroom, finally finding someone he believed resem-

bled “Tracy.” Tuite then fatally stabbed Stephanie in

her bedroom, where she was found slain by her

horrified family.

Called to investigate in the morning, the police

instantly seized upon a flawed theory that this hid-

eous crime had been committed by a member of

Stephanie’s family, and not by Tuite. Using a ploy to

separate Stephanie’s brother and sister from their

parents, the police instantly began hammering on

Stephanie’s 14-year-old brother, Michael Crowe, as

their lead suspect. In brazen violation of Michael’s

rights, the police subjected Michael to prolonged,

coerced interrogations, deliberately disregarding his

repeated requests to see his parents, to stop the

interrogations, and to use the bathroom or to sleep.

Enlisting the aid of a clinical psychologist and a

“truth box” voice analyzing machine which they knew

was merely a sham instrument meant to intimidate

and “psychologically break” Michael, the police ulti-

mately wore Michael down, convincing him that he

had some sort of pent-up hate of Stephanie that

caused him to “black out” and kill her without realiz-

ing it.

Yet even after coercing that confession, the police

still had a problem. While the evidence continued to

point strongly to Tuite as Stephanie’s murderer, no

physical evidence linked Michael to the crime. Ig-

noring Tuite, the police cast a dragnet over two of

Michael’s friends, Joshua Treadway and Aaron

Houser (also juveniles), accusing them of being ac-

complices and co-conspirators. In what one expert

would later characterize as “the most extreme form of

emotional child abuse that I have ever observed in my

nearly 40 years of observing and working with chil-

dren and adolescents,” the police employed the same

coercive interrogation techniques to Joshua and

Aaron, not to learn or discover the truth, but to

browbeat, deceive, threaten and — by any means

necessary coerce them into admitting to their

preconceived and factually unsupported theory of how

Stephanie was murdered, no matter how strongly the

actual evidence pointed toward Tuite.

However, when blood evidence from Tuiie’s

clothing (ignored by the police for a year) was later

confirmed to be Stephanie’s, charges against Michael,

Joshua and Aaron were reluctantly dropped, and

Tuite was prosecuted for, and ultimately convicted of,

Stephanie's murder. Consequently, Michael, Joshua

and Aaron filed suit against the police and related

entities, alleging that their civil rights had been

repeatedly and intentionally violated by the police to

support a ridiculous “theory-based” investigation, and

in a concerted effort to provide “cover” for one of their

6

own who had the last, best chance to stop Tuite, but

never even attempted to do so.

While the District Court granted the police

summary judgment by measuring their behavior as if

they had been dealing with hardened adult criminal

suspects, the Ninth Circuit reversed, finding on de

novo review that “[o]ne need only read the transcripts

of the boys’ interrogations, or watch the videotapes, to

understand how thoroughly the defendants’ conduct

in this case ‘shocks the conscience.’” (App. 47.)' The

Ninth Circuit further held that use of those coerced

confessions at various pre-trial hearings — but after

charges had been brought against the boys and the

“criminal case” commenced — violated their Fifth

Amendment right against self-incrimination. (App.

36-45.)

In an attempt to induce this Court’s review,

Petitioners have offered a highly glossed and sani-

tized version of the underlying facts. But it is the

unique and compelling facts of this case which make

it a particularly unsuitable vehicle for review on the

multiple issues raised by Petitioners. Thus, as Rule

15.2 requires Respondents to point out to the Court

any perceived misstatements of fact contained in the

underlying petitions, Respondents focus here on the

' All factual references in this Opposition Brief are made to

the Appendix of documents attached to the Petition of Mark

Wrisley, Barry Sweeney, Ralph Claytor, and Phillip Anderson

(“the Escondido Petitioners”), and are abbreviated as: “(App.

[page].)”

~

insufficiencies in that recitation, citing to the under-

lying opinions of the Ninth Circuit and the District

Court.

A. Summary.

In his separate Opposition Brief, Co-Respondent,

Michael Crowe, describes in detail the facts leading

up to Tuite’s murder of Stephanie, how the circum-

stantial and physical evidence strongly implicated

Tuite from the outset of the investigation, and how no

physical evidence whatsoever tied Michael to the

murder of his sister. Thus, for the sake of brevity, a

full recounting of those facts and circumstances will

not be repeated here.

Suffice it to say, however, that within minutes of

arriving at the scene, the Escondido police officers

investigating Stephanie’s murder conspired to pin

that hideous crime on a family member, and Michael

unfortunately became their target. The problem

with that plan was that notwithstanding their ability

to “psychologically break” Michael and to coerce

a confession from him, the police could find no physi-

cal evidence (including a murder weapon) link-

ing Michael to that crime. Thus, to justify their own

mistreatment of Michael, the investigating officers

further conspired to search, arrest and interrogate

two of Michael’s friends, Joshua Treadway and Aaron

Houser, all with the goal of further knuckling un-

der those juveniles to support their “theory-based”

8

investigation, even as the objective evidence increas-

ingly pointed to Tuite.

B. January 22, 1998: The Police Interrogate

Aaron Houser at His Home.

On January 22, 1998, Petitioners first interro-

gated Aaron at his residence. (App. 25.) They initially

questioned Aaron regarding his relationship with

Michael, and his interest in mystical fantasy games

and medieval weapons. (/d.) Although those questions

were clearly intended to elicit incriminating respons-

es from Aaron, the police never warned Aaron (then a

14-year-old with no prior criminal record) of his

Miranda rights. (/d.)

C. January 27, 1998: The Police Interrogate

Aaron Houser Again at His Home and at

the Escondido Police Department.

On January 27, 1998, Petitioners executed a

search warrant at Aaron’s residence, based primarily

on prior statements they elicited from him. (App. 25.)

During that search, Aaron was confined to his living

room and kitchen, except when brought to his bed-

room to answer questions. Aaron was then taken to

the Escondido police station for further questioning,

which lasted nearly two hours. (/d.) Again, those

interrogations were clearly intended to elicit incrimi-

nating responses and were even videotaped for that

9

purpose, but at no time was Aaron advised of his

Fifth Amendment rights. (/d.)

D. January 27, 1998 to January 28, 1998:

The Police Interrogate Joshua Treadway

For 13 Hours Overnight.

At approximately 7:00 p.m. on January 27, 1998,

the Escondido Police began their first grueling inter-

rogation of Joshua, lasting over 13 hours. (App. 29-

30.) To begin, Claytor questioned Joshua for several]

hours, employing various techniques outlined for him

by psychologist, Lawrence Blum, meant to coerce

Joshua into admitting involvement in a crime that

neither he, nor his friends, committed. Vd.) Specifi

cally, Claytor baited Joshua with promises of leniency

(rehabilitation) and then scared him with threats of

punishment (prison). (/d.) He also denied Joshua’s

request to see his mother, denied his request for

water, and refused to take him to the bathroom. (/d.)

Claytor never advised Joshua of his Fifth Amendment

rights. (/d.)

As Joshua began to show visible signs of strain

fallowing Claytor’s, Wrisley’s and Sweeney’s seven

hours of grilling, McDonough strategically took over

Joshua’s interrogation at 3:00 a.m. on January 28,

1998, consistent with the plan the officers and Blum

had previously devised to “break” Joshua. (/d.) It was

at this time that McDonough turned loose on Joshua

the “truth box” Computer Voice Stress Analyzer

(““CVSA”) device. Ud.) Notably, McDonough would

10

later admit he did not know how or ii the CVSA

worked, but told Joshua in no uncertain terms that

the CVSA was “97% accurate,” and immediately

determines if your answer is right or wrong.

Despite McDonough’s onslaught and deception,

Joshua initially maintained his innocence. (App. 30.)

However, McDonough relentlessly interrogated and

psychologically abused Joshua, utilizing the CVSA as

the tool of that coercion. Joshua was exhausted and

repeatedly asked to be allowed to sleep. (/d.) When

Joshua ultimately broke down and falsely told

McDonough that Aaron gave him the knife used to

kill Stephanie ~ the only story Joshua discerned

would allow him to escape further coercion

McDonough pretended to administer another CVSA

exam, telling Joshua that he had now “passed” the

test. Ud.) Yet at no time during over 13 hours of

interrogation did McDonough “Mirandize” Joshua

Treadway. (/d.)

E. The Ruse Phone Call to Aaron.

Having “cracked” 15-year-old Joshua, Claytor

and Anderson further manipulated Joshua in an

unconscionable attempt to obtain a false confession

from Aaron. Specifically, they goaded Joshua to call

Aaron and to accuse him of complicity in Stephanie’s

murder while they secretly listened to that phone

call. (App. 30.) Aaron, however, denied any involve-

ment, and was emotionally shocked, confused and

frightened by that ruse. (/d.)

11

F. February 10, 1998: The Police Interrogate

Joshua For Another 12 Hours.

Having already succeeded in extracting a false

story from Joshua that Aaron gave him the knife

Michael used to kill Stephanie, McDonough, Claytor

and other officers pushed their plan further, deciding

to bring Joshua back for another interrogation on

February 10, 1998. (App. 30.)

Knowing that Joshua was already vulnerable to

their influence and that they could now manipulate

Joshua to _ follow’ their preconceived _ script,

McDonough and Claytor interrogated Joshua for

another 12 hours. Ud.) With direction and assistance

from Blum, Claytor and McDonough used similar

coercive techniques to those utilized on January 28,

1998, with similar results. By the end of that interro-

gation session, they had Joshua fabricate a fantasy

confession in which Aaron stabbed Stephanie with

Michael Crowe’s help, while he (Joshua) acted as the

“lookout.” (/d.)

Notably, that false confession was so meandering

and internally inconsistent — with key facts changing

every few moments — that even McDonough doubted

it to be true. (/d.) Yet this did not deter the officers

from arresting Joshua at the conclusion of this second

interrogation, reading him his Miranda rights for the

first time, and booking him into San Diego County

Juvenile Hall. (/d.)

12

G. February 11, 1998: The Police Arrest

Aaron at School, Search His Locker

and Home, and Interrogate Him For a

Third Time.

Using Joshua’s false confession of February 10,

1998, as “probable cause,” the following day the police

searched Aaron’s home and his school locker, while

they seized Aaron at his school without telling him he

was under arrest. (App. 25.)

After Aaron was brought from school to the

Escondido Police Department, he was interrogated for

a total of nine and one-half hours, primarily by

McDonough. (/d.) As with Michael and Joshua,

McDonough’s interrogation of Aaron was psychologi

cally grueling, was based on coercive techniques and

strategies tailored by Blum to overtake Aaron's will

and to force a false confession, and was justified by

Blum telling the officers that Aaron was “a Charles

Manson wannabe” and “Charles Manson with an

1.Q.” (App. 26, 77.) Aaron was also interrogated under

false pretenses in that neither he nor his parents

were told that Joshua had implicated him in the

murder, or that Aaron was even a suspect. (App. 26-

28.) As such, Aaron was under the false impression

that he was merely assisting the police in their inves-

tigation of Michael. (/d.)

As with Joshua, McDonough repeatedly deceived

Aaron in his attempts to extract a confession. For

example, during the interrogation, McDonough asked

Aaron to describe “hypothetically” how Michael might

13

kill Stephanie, how Joshua might, and how Aaron

might do so. (/d.) To accomplish that goal,

McDonough used the CVSA device to “condition” and

“suggest” Aaron’s responses. (/d.) But not only was

Aaron’s hypothetical description at odds with the

evidence of how the killing actually took place, it

was completely different from Joshua’s fabricated

scenario, Which also did not match the evidence.

Nevertheless, McDonough told Aaron that the CVSA

indicated that he was “definitely involved” and that

Petitioners had physical evidence against him and

would soon uncover more. (Jd.) McDonough continued

that deception by also telling Aaron that Michael

and Joshua had said that Aaron helped him kill

Stephanie, and that the physical evidence would

implicate him. (/d.)

Upon realizing for the first time that he had been

deceived and was being questioned as a suspect,

Aaron demanded tha! the interrogation stop and

asked to use the bathroom. Neither request was

honored. (/d.) On two additional occasions, Aaron

asked to speak with his mother, but was not permit-

ted to do so.* (/d.) Claytor also denied Aaron the right

to speak with his father. Ud.) On another occasion,

Aaron demanded that the interrogation cease which

* Under California law, a minor subject to custodial interro-

gation invokes his Fifth Amendment right by asking to see a

parent. People v. Burton, 6 Cal.3d 375, 383-384 (1971). Upon

such a request, before or during questioning, “the police must

cease custodial interrogation immediately.” Jd. at 384.

14

request was likewise denied. (/d.) Yet after approxi-

mately 11 hours of coercive interrogation in which

Aaron maintained his innocence, the police booked

him into Juvenile Hall, never having properly advised

him of his Miranda rights. He was thereafter hand

cuffed, photographed in the nude, and incarcerated

for approximately eight months.

H. Use of the Boys’ Statements in the

Criminal Cases Against Them.

Statements obtained from the boys during their

interrogations were introduced during at least three

pre-trial proceedings. (App. 30-31.) First, a “Dennis

H.” hearing was held and resulted in Aaron and

Joshua spending several months in jail awaiting

trial.” Second, the boys’ statements were introduced

during subsequent grand jury proceedings, resulting

in indictments against all three boys for murder

Finally, the statements were used in a “707 Hearing”

to determine if the boys would be tried as juveniles or

adults.’ (/d.)

‘ In California, when a minor is taken into custody by a

police officer, he must be released within 48 hours from the time

of apprehension unless a petition is filed within that time in a

court of competent jurisdiction explaining why the minor should

be declared a ward of the court. See Cal. Welf. & Inst. Code

§ 631; see also In re: Dennis H., 19 Cal.App.3d 350, 354 (1971)

* The California Supreme Court has characterized trying a

minor as an adult as “the worst punishment the juvenile system

is empowered to inflict.” Ramona R. v. Supertor Court, 37 Cal.3d

(Continued on following page)

-——

es |

Notably, at a subsequent suppression hearing,

the state court found that most of Michael’s state-

ments were the product of a “coercive scheme” by the

police and suppressed them. Similarly, the state court

suppressed all of Aaron’s statements on the grounds

that Aaron had never been Mirandized, while also

suppressing a large portion of Joshua's statements on

the same basis. (App. 31-32.)

I. Dismissals of Indictments and Prose-

cution of Tuite.

After the case against the boys had been set for

trial, pieces of Tuite’s clothes (which had been collect-

ed but never analyzed when the police first stopped

‘Tuite the day after Stephanie was killed) were exam-

ined, the DNA results of which revealed spots of

Stephanie’s blood. (App. 32-33.) The prosecution then

filed a Motion to Dismiss the indictment against the

boys. Ud.)

J. The Boys’ Subsequent § 1983 Action in

the District Court.

After the charges against them were dismissed,

the boys and their families filed three separate com

plaints in state court alleging violations of 42 U.S.C.

KOZ, 810 (1985); accord Marcus W.) vu. Supertor Court, 9%

Cal. App.4th 36, 45 (2002) (holding that the privilege against

self-incrimination applies in “707 hearings”)

16

§ 1983 and various state law torts. Petitioners re-

moved the complaints to federai court. (App. 33-36.)

Following various motions to dismiss those com-

plaints, the District Court consolidated all three ac-

tions and ordered the filing of a Joint First Amended

Complaint. (U/d.) Petitioners then brought over 10

separate motions for summary judgment, which were

the subject of substantial, serial briefing in the Dis-

trict Court over a period of four and one-half years.

(Jd.) Prior to Tuite’s trial and ultimate conviction for

Stephanie’s murder, the District Court issued the

first of two lengthy opinions on February 17, 2004,

finding in substance that Joshua’s and Aaron’s re-

spective claims for violation of their Fourth, Fifth and

Fourteenth Amendment rights did not survive sum-

mary judgment. (App. 197-356.)

After Tuite’s conviction, the District Court on

February 28, 2005 ruled on Michael’s and his family’s

remaining civil rights claims, prompted by a second

round of similar motions for summary judgment filed

by Petitioners. Following the course it charted with

the claims brought by Joshua and Aaron, the District

Court also denied Michael any relief on his Fourth,

Fifth, and Fourteenth Amendment claims. (App. 90-

196.)

K. The Ninth Circuit’s Ruling.

Upon de novo review, the Ninth Circuit reversed

in part and affirmed in part the District Court's two

rulings. Specifically, consistent with this Court’s

17

plurality opinion in Chavez v. Martinez, 538 U.S. 760

(2003) — which found a violation of the right against

self-incrimination occurs if one has been compelled to

be a witness against himself in “any criminal case” —

the Ninth Circuit held that all three pre-trial pro-

ceedings in which Michael’s and Aaron’s statements

were used were part of the “criminal case” against

them and supported a Fifth Amendment cause of

action. (App. 36-45.)

The Ninth Circuit similarly reversed the District

Court, holding instead that the Petitioners’ brutal

and coercive conduct — meant to overcome the will of

adolescent boys — amounted to “psychological torture”

and sufficiently “shocked the conscience” to support a

Fourteenth Amendment Due Process claim. (App. 45-

48.)

Furthermore, the Ninth Circuit reinstated other

claims asserted against McDonough and Blum; the

Crowes’ deprivation of familial relationship claim

based upon Michael’s incarceration; and the Housers’

deprivation of familial relationship claims based upon

Aaron’s incarceration. (App. 66-71.)

The Ninth Circuit, however, affirmed summary

judgment as to all of Michael’s and Aaron’s Fourth

Amendment violations (related to the existence of

probable cause for their arrests and the searches of

their homes); the Fourth Amendment conspiracy

claim against McDonough; Michael’s and Aaron’s

defamation claims against Prosecutor Stephan;

Aaron’s defamation claim against Blum; and all

18

claims against the municipal entity defendants. (App.

48-59, 68, 71-80.)

Finally, the Ninth Circuit affirmed the District

Court’s denial of summary judgment as to the Crowes’

individual claims for Fourth Amendment violations

arising out of their respective strip searches and

drawing of blood samples; as well as their claims for

wrongful detention and deprivation of familial com-

panionship arising out of Michael and his sister,

Shannon, being placed in protective custody. (App. 62-

66.)

Petitioners thereafter petitioned the Ninth

Circuit for rehearing and rehearing en banc, beth of

which were properly denied. (App. 6.)

Ill. REASONS FOR DENYING THE PETITIONS

A. Petitioners’ Attempts to Manufacture

Review of Respondenis’ Fifth Amendment

Claims Has Recently Been Rejected by

This Court and Should Be Rejected

Again Now.

The Fifth Amendment provides that no person

“shall be compelled iz any criminal case to be a

witness against himself.” U.S. Const. amend. V

(emph. added). This Court has emphasized that the

“sole concern” of the Fifth Amendment is “to afford

protection against being ‘forced to give testimony

leading to the infliction of penalties affixed to ...

3

criminal acts.’” Kastigar v. United States, 406 U.S.

441, 444 (1972).

Petitioners claim that in the wake of the Chavez

plurality opinion, there is an alleged “conflict” within

the Circuit Courts about when, precisely, a “criminal

case” begins. As Respondents here explain, that

argument is nothing new, but rather is precisely the

same argument the Escondido Petitioners raised as

amicus in support of review of the Ninth Circuit’s

prior decision in Stoot v. City of Everett, 582 F.3d 910

(9th Cir. 2009), cert. denied, April 5, 2010. This Court

rejected those same arguments just over seven months

ago, and should do so again now.

Moreover, as Respondents further explain, this

case presents a uniquely poor vehicle for review of the

widespread application of Fifth Amendment protec-

tions, as it involves juvenile criminal defendants who

this Court has mandated should be subject to differ-

ent interrogation standards (.e., “the greatest care”

standard under /n re: Gault, 387 U.S. at 55) than

their fully emancipated adult counterparts. Accord-

ingly, as that “greatest care” standard necessarily

overlays the Ninth Circuit’s Fifth Amendment analy-

sis, this case is an inappropriate platform from which

to extrapolate legal concepts meant to apply to a

much broader population of criminal defendants.

20

1. The Alleged Split Between the Circuit

Courts Does Not Warrant This Court’s

Attention at This Time.

With great hyperbole, Petitioners claim that a

“deep circuit split” exists by relying on decisions from

four Circuits — the Third, Fourth, Fifth, and Sixth

Circuits. They do so by cherry-picking language from

a small collection of cases in those Circuits which

have never squarely addressed the “criminal case”

question post-Chavez, as have the Second, Seventh,

and Ninth Circuits. As set forth more fully below, the

language on which Petitioners rely either pre-dates

Chavez, or is dicta (not binding on future decisions in

those Circuits) wrested from factually distinguishable

decisions. Consequently, it remains unclear whether

those Circuits would hold differently if they were

actually confronted with the same compelling factual

scenario presented in this case.

a. The Third Circuit.

For example, in the Third Circuit decision of

Renda v. King, 347 F.3d 550, 553 (38rd Cir. 2003), the

plaintiff was charged with giving false reporis to law

enforcement authorities. The Court of Common Pleas

suppressed the plaintiff’s statements due to Miranda

violations and the case was nolle prossed by the

District Attorney for lack of evidence. /d. The plaintiff

filed an action pursuant to 42 U.S.C. § 1983 alleging,

among other things, a violation of her Fifth Amend-

ment rights. The Third Circuit held that the plain-

tiff’s Fifth Amendment rights were not violated

21

because her statements were never used against her

at trial. Jd. at 559. In doing so, however, the Third

Circuit failed to engage in any substantive analysis of

the issue now presented to the Court. The decision

simply states on this issue: “... our prior decision in

Giuffre compels the conclusion that it is the use of

coerced statements during a criminal trial, and not in

obtaining an indictment, that violates the Constitu-

tion.” Id.

Notably, however, Giuffre v. Bissell, 31 F.3d 1241

(3rd Cir. 1994), upon which Renda relied, was a pre-

Chavez case. Additionally, as correctly pointed out by

the Seventh Circuit in the subsequent, post-Chavez

decision of Sornberger v. City of Knoxville, Ill., 434

F.3d 1006 (7th Cir. 2006), Giuffre was “decided before

the Supreme Court determined in Dickerson v. United

States, 530 U.S. 428 (2000), that the Miranda warn-

ings themselves have constitutional status.” /d. at

1025. The Seventh Circuit concluded therefore that

“little weight” should be placed on the holding in

Giuffre, given that subsequent change in the law. Id.

Furthermore, Giuffre was factually similar to Chavez

in that officers obtained a statement from the plain-

tiff during an allegedly coerced interrogation but

charges were later dropped prior to the filing of a

criminal case. Jd. at 1244. Here, in contrast, Aaron’s

coerced statements were used in bringing criminal

charges against him, in denying his pre-trial release,

and in deciding whether to try him as an adult.

In short, the Renda decision relied entirely on a

distinguishable pre-Chavez decision which failed to

22

set forth any detailed analysis to support its conclu-

sion that a Fifth Amendment violation occurs only

when a statement has been used at trial. As such,

Renda does not present a proverbial “split” among the

Circuits at all, let alone one that is sufficiently ma-

ture to warrant this Court’s attention now. Indeed,

faced with facts similar to those presented in this

case — and given the guidance th:s Court has pro-

vided since in Chavez — it cannot be said with any

degree of certainty that the Third Circuit would not

agree with the Ninth Circuit's decisions in both Stoot

and this case.

b. The Fourth Circuit.

Similarly, in the Fourth Circuit decision of

Burrell v. Virginia, 395 F.3d 508, 510 (4th Cir. 2005),

an officer approached the plaintiff at a traffic accident

scene. When the plaintiff refused to answer any of the

officer’s questions, he was charged with obstruction of

justice and operating an uninsured motor vehicle. Jd.

at 511. When the plaintiff’s conviction on those

charges was later overturned on appeal, he brought a

§ 1983 action alleging, among other things, his Fifth

Amendment rights were violated by the state compel-

ling him to produce evidence of insurance. /d.

The Fourth Circuit analyzed the plaintiff’s claim

under Chavez noting that this Court’s plurality con-

clusion that a violation of the constitutional right of

self-incrimination occurs only if one has been com-

pelled to be a witness against himself in a criminal

23

case. Id. at 513, citing Chavez, 538 U.S. at 770. The

Burrell court then focused on Justices Souter’s and

Breyer’s concurrence in Chavez which concentrated

on whether a violation required “courtroom use of a

criminal defendant’s compelled, self-incriminating

testimony. ...” /d., citing Chavez, 538 U.S. at 777

(emph. in orig.). Based on that reasoning alone,

Burrell concluded “[Plaintiff] does not allege any trial

action that violated his Fifth Amendment rights:

thus, ipso facto, his claim fails on the plurality’s

reasoning.” Jd. But closer scrutiny reveals that

Burrell’s statement regarding requirement of a “trial”

action is pure dicta. Indeed, the plaintiff in Burrell

never alleged any “courtroom use” of statements since

he only asserted a violation occurred at the time

summonses were issued by the state. Jd. Thus, that

language, as it related to the question presented by

the limited facts of that particular case, went well

beyond those facts and consequently, would not be

binding on subsequent cases.

In fact, the Seventh Circuit in Sornberger, which

reached the same conclusion as the Ninth Circuit in

this case, explained why that isolated language in

Burrell created no conflict with its own holding:

We do not see conflict between our holding

today and that of our sister circuit in Burrell.

There, Burrell claimed that his constitu-

tional rights were violated when the police

issued him an obstruction of justice sum-

mons for invoking his right to remain silent.

The Fourth Circuit held that the issuance of

24

a summons was not a “courtroom use of

a criminal defendant’s compelled, self-

incriminating testimony,” and_ therefore

Burrell failed to state a claim under § 1983

for violation of his right against self-

incrimination. Here, by contrast, Teresa’s

confession was used at a preliminary hearing

to find probable cause to indict, to arraign

and to set her bail. More than the mere

issuance of a summons, failure to administer

Teresa Miranda warnings led to three dis-

tinct “courtroom uses” of her unwarned

statements.

Sornberger, 434 F.3d at 1027.

Consequently, it is entirely unclear whether the

Fourth Circuit would hold differently given the facts

of this case. Indeed, like the situation in Sornberger

and unlike the situation in Burrell, the coerced

statements used against Aaron formed the basis for

filing formal charges against him, were used to

determine his pre-trial custody status, and led to

Aaron being tried as an adult, all “courtroom uses.”

As such, the “courtroom use” of the statement that

was entirely lacking in Burrell is fully present in this

case, as it was in Sornberger. Accordingly, the Fourth

Circuit’s decision in Burrell does not present a split

among the Circuits, but must be viewed as limited to

the facts before it, which are clearly distinguishable

from those found in this case.

25

c. The Fifth Circuit.

In the Fifth Circuit’s decision of Murray v. Earle,

405 F.3d 278 (5th Cir. 2005), the plaintiff (a juvenile)

was charged with capital murder and injury to a

child. The plaintiff’s statements, obtained without

taking her before a magistrate or notifying her par-

ents or an attorney as required by Texas law, were

used against her during two different trials leading to

her conviction. /d. at 284. The Texas Court of Ap-

peals, however, reversed those convictions due to

improperly acquired statements. /d. The plaintiff

subsequently brought a § 1983 action alleging, among

other things, a violation of her Fifth Amendment

rights. Id.

When the plaintiff challenged the trial court’s

grant of qualified immunity, the Fifth Circuit stated:

“The Fifth Amendment privilege against self-

incrimination is a fundamental trial right which can

be violated only at trial, even though pre-trial con-

duct by law enforcement officials may ultimately

impair that right.” Jd. at 285. The Murray court,

however, provided no analysis regarding the question

presented in this case, or clarified by the Chavez

plurality: pre-trial use of coerced statements within

the criminal case. Indeed, as in Burrell, that state-

ment was circumscribed by the facts before it, as the

plaintiff’s confession in Murray had, in fact, been

used two different times against her at trial. Jd. at

284. Thus, Murray cannot be reasonably construed as

going beyond its limited facts to reach a scenario

where, like here, those same _ self-incriminating

26

statements are used in various pre-trial proceedings

which implicate substantial liberty interests. Indeed,

if confronted with the significantly distinguishable

facts present in this case, it is unclear whether the

Fifth Circuit would hold any different than the Ninth

Circuit did in this case, or be bound by the factually

dissimilar situation presented in Murray.

d. The Sixth Circuit.

Finally, in McKinley v. City of Mansfield, 404

F.3d 418, 425 (6th Cir. 2005), the self-incriminating

statements in question were introduced at trial and

played a “central role” in the plaintiff’s conviction.

Consequently, the McKinley court’s recitation of the

rule (in a mere footnote, no less) that the Fifth

Amendment is a “trial protection” right was appro

priate on the limited facts before it. But it does noth-

ing to require a similar holding where another court

in the Sixth Circuit is later confronted with the facts

present in this case: pre-trial use of a_ self-

incriminating statement within the confines of the

criminal case.

Again, like the decision of the Fourth Circuit in

Burrell, and the Fifth Circuit in Murray, the Sixth

Circuit’s mere recitation in McKinley of a “trial pro-

tection” rule — without any further analysis — does

not define the contours of the Fifth Amendment in

that Circuit, but must instead be viewed within the

limited facts presented to the McKinley court. Indeed,

none of the decisions on which Petitioners rely have

27

squarely addressed the different factual situation

present here, and none would prohibit another court

from ruling exactly as the Ninth Circuit did in this

case if they are confronted with those distinguishable

facts in the future.

In contrast, every Circuit which has squarely

addressed pre-trial use of self-incriminating state-

ments in the “criminal case” has uniformly followed

this Court’s guidance in Chavez and found such use to

violate the Fifth Amendment. See, e.g., Sornberger,

434 F.3d at 1026; Higazy v. Templeton, 505 F.3d 161,

172 (2nd Cir. 2007); Stoot, 582 F.3d at 925-926. There

is no reason to believe the results would be any

different if (and when) the Third, Fourth, Fifth and

Sixth Circuits have the opportunity to confront that

same issue. But until they do — and render a decision

on similar facts which is actually at odds with the

decisions of the Second, Seventh, and Ninth Circuits

— any alleged “conflict” raised by the Petitioners is

simply non-existent, let alone sufficiently mature at

this juncture to warrant this Court’s attention.

2. The Compeiling Facts of This Case

Make It a Uniquely Poor Vehicle for

Review of the Widespread Application

of Fifth Amendment Protections.

As mentioned at the outset of this brief, one of

the most compelling aspects of this case is that it

involves juveniles (boys, ages 14 and 15) — with no

28

prior criminal history or contact with the police - who

were subjected to hours of coercive interrogation

before they were ever apprised of their Miranda

rights. While Petitioners pay lip service to this fact,

they just as quickly go on to forget Respondents’

relative youth, condoning inquisitorial techniques

and practices which have been found to be appro-

priate, if at all, for adult criminal suspects.

But the standards for exercising the “greatest

care” in analyzing police interrogations of juveniles

are well-established, and run directly contrary to the

authority relied upon by Petitioners. Indeed, as this

Court made clear over a half-century ago in In re:

Gault:

We appreciate that special problems may

arise with respect to waiver of the [Fifth

Amendment] privilege by or on behalf of

children, and that there may well be some

differences in technique ~ but not in princi

ple — depending upon the age of the child and

the presence and competence of parents... ,

the greatest care must be taken to assure

that the admission was voluntary, in the

sense not only that it was not coerced or sug-

gested, but also that it was not the product of

ignorance of rights or of adolescent fantasy,

fright or despair.

In re: Gault, 387 U.S. at 55 (emph. added).

There can be no doubt that those “special prob-

lems” — as well as the established body of law from

this Court and others which deal specifically with the

29

care which must be afforded juvenile criminal de

fendants in custodial interrogations — properly influ

enced the Ninth Circuit’s analysis of Aaron’s Fifth

Amendment claims, and would do the same if this

Court were to review this case. Consequently, the

“special problems” inherent in addressing a juvenile

case, and the unique and compelling factual issues

involved in this case, make it an inappropriate ve-

hicle for resolving the questions presented.

3. Petitioners’ Claim That the Ninth

Circuit’s Decision Will Have a “Chilling

Effect” on Law Enforcement Activities

Is Supported Neither By Fact Nor

Law.

In a reprise of the unsuccessful arguments they

offered in the Sloot case, Petitioners again argue the

Ninth Circuit’s decision in this case will have a

“chilling effect” on law enforcement activities. Spe-

cifically, Petitioners suggest that the Ninth Circuit's

opinion creates an unworkable standard that will

expose law enforcement officers to unnecessary law-

suits and civil lability, blithely characterizing this

case as involving “garden variety” interrogation

techniques, even where juveniles were involved

Those arguments, however, presuppose that law

enforcement officers do not have to follow rules

applicable to interrogations and that if they do not,

there will be no repercussions. To the contrary, this

Court’s precedent, beginning with Miranda = and

30

continuing to the present day, sets forth clear re-

quirements for a proper interrogation. A law enforce-

ment officer must follow those rules or face the

consequences.

Here, the record aptly demonstrates how time

and again, Petitioners deliberately flouted those rules

by interrogating Michael and Aaron for hours, and

only Mirandizing them at the end of those interroga-

tions after they had overcome the boys’ will and

secured the confessions they were seeking. Conse-

quently, Petitioners’ arguments about the need for

“proper guidelines” rings hollow when the record

shows how they deliberately violated the guidelines

this Court has already provided in myriad cases.

Moreover, at the time Petitioners took that action, it

was firmly established in the Ninth Circuit that the

defense of qualified immunity is not available to

police officers who knowingly violate the law. Cooper

v. Dupnick, 963 F.2d 1220, 1251 (9th Cir. 1992),

overruled on other grounds in Chavez, 538 U.S. 760.

Rather than justifying protection for the proper

exercise of their duties, when law enforcement offi-

cials act as they have in this case, “they invite redress

under section 1983.” Jd. at 1252.

Petitioners’ fall-back position — that the police

cannot, as a matter of law, be found liable for any

Fifth Amendment violation where prosecutors (and

not they) introduce those coerced statements at trial

— merits even less consideration. Such an argu-

ment lacks any legal support, and, in fact, has been

squarely rejected by the very authority cited by

31

Petitioners. See McKinley, 404 F.3d at 436-437, fn. 23

(addressing the District Court’s decision in this case

and finding its reasoning wholly “unpersuasive’”).

McKinley then cited a long train of authority — includ-

ing Chavez — where it has never been questioned that

the police may be held liable under § 1983 for violat-

ing someone’s Fifth Amendment rights. /d.

Indeed, as both the Sixth Circuit in McKinley and

the Ninth Circuit in this case properly concluded, a

rule barring suits against the police for Fifth

Amendment violations ts a rule barring any suits for

Fifth Amendment violations, given that prosecutors

are absolutely immune from suit for their conduct as

advocates within the judicial process. Jd. at 437-438,

citing Buckley v. Fitzsimmons, 509 U.S. 259, 273

(1993).

But it cannot be — and in fact, has never been —

that invasions of the right against compelled self-

incrimination are not actionable. Consequently,

Petitioners’ assertions to the contrary should be

rejected by this Court on that basis alone. (App. 42-

44.)

In sum, as freedom from compulsion lies at the

heart of the Fifth Amendment, no purpose would be

advanced by making the police immune, as a matter

of law, from the protections that Amendment. pro-

vides. Indeed, if this were the case, the police would

only be encouraged to compel coerced and self-

incriminating statements with complete impunity.

Surely, such a result would be wholly contrary to a

32

long train of well-settled authority meant to regulate

and discourage such police misconduct under the

aegis of the Fifth Amendment.

B. Petitioners’ Arguments That There Is a

Need to Clarify “Conscience Shocking”

Behavior Under the Fourteenth Amend-

ment Also Fails to Raise an Issue Wor-

thy of This Court’s Review.

1. This Court’s Decisions Are Replete

with Examples of Verbally Coercive

Interrogations Which Violate the

Fourteenth Amendment.

Petitioners assert that the Ninth Circuit's opin-

ion in this case creates uncertainty and confusion

about what conduct is sufficiently “conscience shock-

ing” to warrant Fourteenth Amendment lability.

They premise that argument on the assertion that

“verbal” coercion and deception should not be enough,

even where juveniles are the target of that coercion.

But over a half-century ago in Haley, this Court

found that a 15-year-old boy — based upon verbal

coercion alone — was necessarily ill-equipped to with-

stand an overnight police interrogation resulting in

his coerced confession. Haley, 332 U.S. at 599-600.

Writing for the Court, Justice Douglas reasoned that

such a juvenile “cannot be judged by the more exact-

ing standards of the law,” and further observed

“[tlhat which would leave a man cold and unim-

pressed can overawe and overwhelm a lad in his ear!y

33

teens.” Jd. Recognizing both that such a boy “ques-

tioned through the dead of night by relays of police, is

a ready victim of the inquisition,” and that while

“mature men possibly might stand the ordeal ... a

iad of tender years is no match for the police in such a

contest,” the Haley court aemanded that “special care

in scrutinizing the record must be used” in order to

protect the constitutional rights of juveniles, and to

prevent the police from using custodial interrogations

for “wringing confessions from them.” Jd. at 599-601

(emph. added).

Not 14 years later, in Gallegos v. Colorado, 370

U.S. 49 (1962), this Court was again called upon to

scrutinize a confession wrought from a juvenile in the

course of a custodial police interrogation. Finding

that the youth of the accused — 14 years old — was a

“crucial factor” in determining whether due process

violations had occurred, the Gallegos court reasoned:

[A] 14 year-old bey, no matter how sophisti-

cated, is unlikely to have any conception of

what will confront him when he is made ac-

cessible only to the police. That is to say, we

deal with a person who is not equal to the po-

lice in knowledge and understanding of the

consequences of the questions and answers

being recorded and is unable to know how to

protect his own interests or how to get the

benefit of his constitutional rights.

Id. at 1212.

Over the prosecution’s continuing assertion that

such youth and immaturity were “irrelevant” ia light

34

of the allegedly “voluntary” nature of the confession

made, the Gallegos court retorted:

But if we took that position, it would, with

all deference, be in callous disregard of this

boy’s constitutional rights. He cannot be

compared with an adult in full possession of

his senses, and knowledgeable of the conse-

quences of his admissions.

Id. at 1212-1218.

Consequently, Gallegos, like Haley before it,

concluded that “the formal confession on which this

conviction may have rested was obtained in violation

of due process.” Id. et 1213.

Not four years later, the Court in Jn re: Gault,

387 U.S. 1, again stressed the importance that youth

plays in determining whether a confession is coerced,

and echoed the mandate that “the greatest care” must

be taken to assure that juvenile confessions are

“voluntary, in the sense not only that [they are]

not coerced or suggested, but also that [they are] not

the product of ignorance of rights or of adolescent

fantasy, fright or despair.” Gault, 387 U.S. at 55

(emph. added). That “greatest care” standard was

based upon this Court’s review of several lower ccurt

decisions confirming how juvenile confessions are

often “the product of fear and fatigue due to extensive

police grilling,” and how “the frightening atmosphere

of a police station is likely to have a harmful effect

on the mind and will of the boy.” Jd. at 52-53 (in-

ternal quotes omitted). And so the Gault court, too,

35

concluded with the continuing recognition that “au-

thoritative opinion has cast formidable doubt upon

the reliability and trustworthiness of ‘confessions’ by

children.” Jd.

In the several decades since Haley, Gallegos, and

Gault, other courts have universally followed this

same line of reasoning, insisting that the law view

juveniles differently than their adult counterparts.”

Most notably, however, is the fact that the police

conduct in those cases was “verbal,” as it was in this

case. Indeed, as this Court has repeated many times,

coercion can be mental as well as physical, as “the

blood of the accused is not the only hallmark of an

* See, e.g., Woods v. Clusen, 794 F.2d 293, 296-298 (7th Cir.

1986), (finding that various coercive police techniques — relays of

police interrogators, lying about the state of the evidence,

promises of leniency — violated a 16-year-old’s Fourteenth

Amendment rights, given his relative age, experience, and

education); Taylor v. Maddox, 366 F.3d 992, 1013-1015 (9th Cir.

2004) (applying Haley's “greatest care” standard to reject a

coerced confession wrought from a 16-year-old juvenile and

ultimately finding that the police had clearly violated the

juvenile’s Fourteenth Amendment rights. Secondary authority is

also in accord. See 87 A.L.R.2d 624, Voluntariness and Admissi-

bility of Minor’s Confessions; 82 N.C.L. Rev. 891, 944, The

Problem of False Confessions in the Post-DNA World; see also 30

N.Y.U. Rev.L. & Soc. Change 209, The Reality of False Confes-

sions — Lessons of the Central Park Jogger Case (recounting in

chilling detail how and why five juvenile boys subjected to

heavy-handed police interrogation techniques confessed their in-

volvement in an infamous crime they did not commit, and were

prosecuted and convicted on the basis of those confessions alone,

until the real killer, a serial rapist and convicted murderer,

confessed to the crime some thirteen years later.)

36

unconstitutional inquisition.” See, e.g., Arizona uv.

Fulminante, 499 U.S. 279, 287 (1991); Reck v. Pate,

367 U.S. 433, 440-441 (1961); Blackburn v. Alabama,

361 U.S. 199, 206 (1960).

Here, the Ninth Circuit concluded from the

record before it that Michael’s and Aaron’s confes-

sions were the product of “psychological torture,” and

that “lolne need only read the transcripts of the boys’

interrogations, or watch the videotapes, to under-

stand how thoroughly the defendants’ conduct in this

case ‘shocks the conscience.’” (App. 47.)

On that record, and in light of the clearly estab-

lished standards governing even verbal coercion

which run through myriad decisions of this Court,

there is absolutely no need for this Court’s interven-

tion at this time. |

2. Petitioners’ Companion “Shocks the

Conscience” Arguments Warrant Even

Less Scrutiny by This Court.

Petitioners badly mischaracterize the Ninth Cir-

cuit’s opinion and the record below to float two com-

panion arguments, neither of which warrants this

Court’s review. Specifically, Petitioners assert that a

Fifth Amendment violation based upon coercive

interrogation techniques, and a Fourteenth Amend-

ment violation based upon deprivation of familial

companionship, cannot be found absent conscience

shocking behavior.

37

But those arguments belie the fact that the

Ninth Circuit, in finding that Petitioners violated

Michael’s and Aaron’s Fifth Amendment rights,

necessarily relied upon the same c...science shocking

behavior that also formed the basis for Petitioners’

violation of the boys’ Fourteenth Amendment rights.

In other words, the same coercive interrogation

techniques employed by Petitioners amounted to

violations of both Constitutional protections, given

the egregious nature of that conduct. That this is so

does not indicate that this case is at variance with

any other decisions, but merely reflects the compel-

ling facts which were before the Ninth Circuit, impli-

cating both Fifth Amendment and _ Fourteenth

Amendment protections.

Similarly, Petitioners’ assertion that a depriva-

tion of familial companionship claim under the Four-

teenth Amendment requires conscience shocking

behavior — and not mere “unwarranted interference”

— is also an inadequate grounds for review. Indeed, in

this case, it was the Petitioners’ conscience shocking

and coercive interrogation tactics which the Ninth

Circuit found to have caused Aaron’s wrongful incar-

ceration and concomitant separation from his family.

(See App. 69 [“Because Michael’s and Aaron’s contin-

ued detentions were wrongfully justified by their

illegally coerced confessions, we reverse”].) Thus,

although the Ninth Circuit applied the proper stan-

dard in reinstating that familial relationship claim,

even if it were to have applied the “conscience shock-

ing standard” Petitioners espouse, the outcome would

38

have been exactly the same. Accordingly, there is no

reason for this Court to intervene on facts which

would compel the same outcome, irrespective of the

standard applied.

C. The Ninth Circuit’s Reversal of Summary

Judgment on the Conspiracy Claim

Asserted Against Blum Was Entirely

Fact-Driven and Therefore Presents No

Legal Issue for This Court to Clarify.

Blum’s individual argument — that as a private

citizen, he cannot be held liable for conspiracy to

violate Michael’s and Aaron’s constitutional rights —

is presented without regard to the controlling stand-

ard of review at summary judgment. Indeed, Blum

recites at length improper factual findings made by

the District Court as if they had been made after

trial. In contrast, the Ninth Circuit simply deter-

mined that genuine questions of material fact exist

regarding the level and extent of Blum’s involvement

which could not be determined at summary judg-

ment, and reversed the District Court on that basis.

(App. 66-68.)

Rather than running contrary to this Court's

decision in Richardson v. McKnight, 521 U.S. 399,

412 (1997), that conclusion by the Ninth Circuit only

confirms that Blum is not automatically entitled to

§ 1983 immunity merely because he is a private

individual, as was his primary argument on appeal.

Moreover, as Blum’s own petition reveals, such a

39

holding is not a matter of controversy, but has been

echoed in the decisions of “nearly every other Circuit

Court” which has considered the issue. Thus, the

compulsion for this Court’s review is clearly lacking.

Perhaps more importantly, however, is the fact

that the Ninth Circuit did not deny Blum qualified

immunity based upon a “blanket prohibition” that

private actors are never entitled to such immunity, as

Blum contends. Indeed, the cases which Blum cites

hold to the contrary. See, e.g., Franklin v. Fox, 312

F.3d 423, 445 (9th Cir. 2002) (which Blum claims

applied a “blanket denial of qualified immunity to [a]

private individual,” but which instead upheld the

district court’s grant of summary judgment upon a

finding that no evidentiary basis existed for the

conspiracy claim the plaintiff had asserted as the sole

basis for § 1983 liability against that individual);

Clement v. City of Glendale, 518 F.3d 1090, 1096-1097

(9th Cir. 2008) (which Blum also asserts demon-

strates the Ninth Circuit’s trend of “blanket denial” of

qualified immunity to private individuals, but which

instead extended immunity to a private towing com-

pany under Richardson’s “good faith” defense to

§ 1983 liability).

In any event, notwithstanding whatever post-

Richardson “blanket prohibition” Blum believes he

may have discerned from those decisions, no such

automatic rule played any role here. Instead, the

Ninth Circuit simply concluded that the record evi-

dence regarding Blum’s involvement raised factual

40

questions which could not be properly determined at

summary judgment:

The record shows that the quality of Blum’s

involvement in the interrogations is not cat-

egorically inconsistent with a tacit “meeting

of the minds.” According to one of the detec-

tives, Blum helped the police formulate a

“tactical plan” to approach the interview.

Moreover, the detectives “pretty much” fol-

lowed his advice after these consultations.

Insofar as these tactics and lines of question-

ing by the detectives shock the conscience, as

demonstrated above, summary judgment in

favor of Blum is unwarranted.

(App. 67.)

Thus, in determining that a meeting of the minds

could be inferred from the circumstantial evidence

(including Blum’s involvement in the interrogations

and in formulating and directing the tactical plan),

the Ninth Circuit reasoned that the evidence was

sufficient for a reasonable factfinder to conclude it

was “unlikely to have been undertaken without an

agreement.” (App. 67-68.) On that basis alone, the

Ninth Circuit quite correctly reversed summary

judgment as to Blum. There is nothing controversial

about that proper application of well-settled sum-

mary judgment standards. Consequently, there is no

issue of law for this Court to clarify now.

4]

IV. CONCLUSION

Petitioners have not established any compelling

reasons for this Court to grant their various petitions.

For the foregoing reasons, Respondents respectfully

request this Court to deny those petitions.

Respectfully submitted,

BOUDREAU WILLIAMS LLP

JON R. WILLIAMS, Esq.

Counsel of Record

666 State Street

San Diego, CA 92101

(619) 238-0370 (phone)

(619) 238-8181 (facsimile)

williams@bwlawllp.com

SCHOVILLE & ARNELL, LLP

DENNIS A. SCHOVILLE, Esq.

Louis G. ARNELL, Esq.

2404 Broadway

San Diego, CA 92101

(619) 232-9901 (phone)

(619) 232-9904 (facsimile)

Attorneys for Respondents,

Aaron Houser,

Margaret Susan Houser,

and Gregg Houser