# Opposition Brief — Wrisley v. Crowe

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2011
- **Citation:** 562 U.S. 1135

## Text

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D2 NAIF Suprense Cour. US
Nos: Sin 10-377, 10-420 | s

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— ve c/o

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
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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386017_2492%3A3. Public record. Not legal advice.