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Asked to throw out a teen’s murder confession on the grounds it was coerced, the California Supreme Court on Wednesday seemed sympathetic, but went even further by expressing contempt for a growing police practice of encouraging officers to ignore defendants’ Miranda rights. Four of the justices, including Chief Justice Ronald George, pounced on the practice — which had been raised in court briefs by defense-side amicus curiae – during oral arguments in San Francisco. California Attorneys for Criminal Justice had argued that it’s well documented that law enforcement agencies, including the state’s leading training organization — the California Commission on Peace Officer Standards and Training — now encourage officers to ignore Miranda. They base their actions, the CACJ stated, on their reading that recent California and U.S. Supreme Court decisions allow any illegally obtained statements to be used for impeachment purposes, though not as direct evidence. “That’s troublesome to me,” Justice Marvin Baxter told Fresno Deputy Attorney General Lloyd Carter, who was defending the state’s position. Justice Joyce Kennard joined in by noting that the detective investigating the case at hand — Kenneth Ray Neal’s 1999 strangulation murder of 69-year-old friend and mentor Don Collins — called his admittedly deliberate violations of Miranda rights a “useful tool.” As Carter tried to respond, Justice Ming Chin snapped: “You don’t find a problem with that?” Chief Justice George pointed out that any evidence gained by a detective who violates a defendant’s Miranda rights and then exacerbates the situation by coercing an involuntary confession couldn’t be used at all, even for impeachment. “That’s a reason not to continue with deliberate violations of Miranda, isn’t that right?” he said. In People v. Neal, S106440, defense lawyers are attempting to have the high court overturn Neal’s 2000 second-degree murder conviction, based on the argument that Tulare County detective Mario Martin deliberately violated the then-18-year-old man’s rights by ignoring requests for a lawyer as many as 11 times. While admitting that Martin violated Neal’s rights and that the issue presents a “close question,” prosecutors contend that Neal’s confession — rendered a day after he had requested a lawyer — was not coerced. In addition, they argue that the detective’s actions comply with Edwards v. Arizona, 451 U.S. 477, the U.S. Supreme Court’s 1981 ruling that says questioning must cease immediately once Miranda rights are invoked, but allows those rights to be waived if a defendant reinitiates contact with investigators. Deputy AG Carter said that while detective Martin did not cease questioning on the first day of interrogation, Neal asked to meet with him again after spending a night in custody. What the court must decide, he argued Wednesday, was whether that time apart — approximately 18 hours — was enough to meet the reinitiating requirement. “That’s a question,” Chief Justice George interjected quickly, “you concede with considerable candor in your briefs is a close question.” George then went on to ask whether Neal’s constant requests for a lawyer, the fact that he was kept in custody without food, water or toilet facilities, and that detectives had threatened to put him in Timbuktu weren’t sufficient factors to violate Edwards and make his confession involuntary. “Is there a taint here?” George continued. “There is no break in custody. There is no food or water.” George added that there was “some apparent involuntariness” involved. Neal’s lawyer, San Francisco solo practitioner Victor Morse, came under far less scrutiny, but was asked by Justice Baxter whether Neal’s confession was truly involuntary. Was it coercion, he asked, or Neal’s admitted sense of guilt that compelled the truth to be spoken? Tulare County Superior Court Judge Gerald Sevier saw it as the latter, Baxter said. “Who’s in the better position to make that call?” he asked. “The trial judge hearing the testimony or the appeal court relying on a record?” Morse argued that the trial judge got it wrong, that the trial record clearly shows that detective Martin made “implied and explicit” promises to be lenient if Neal cooperated and punish him if he didn’t. While apparently sympathetic about a possible violation of Neal’s Miranda rights and outright hostile about training programs encouraging their violation in general, the justices didn’t seem to want to let the defendant off the hook entirely. Questions were raised about the possibility of a conviction based on evidence other than the confession. Deputy AG Carter said there was plenty, including Neal’s unverifiable alibi that he injured his hands during a fight with someone else and handwriting on a murder note that was identical to Neal’s. The note tried to blame the killing on another person. In another argument Wednesday, the justices seemed ready to adopt a bright-line rule prohibiting death row inmates from filing pro se if they already have a lawyer. In re Barnett, S096831, involves whether San Quentin State Prison inmate Lee Max Barnett, convicted in Butte County for the 1986 murder of Richard Eggett, should be allowed to keep challenging his sentence and conditions pro se. Chief Justice George and Justices Baxter and Chin seemed to have serious problems with the idea, hitting Barnett’s lawyer, Oakland solo Robert Bacon, with a blizzard of questions. Wouldn’t a pro se submission conflicting with the arguments of the lawyer of record cause confusion and jeopardize the defendant’s case? George asked. Using a sports analogy, Baxter suggested that one quarterback for the team seems sufficient. “When I was in private practice,” he said, “I insisted I have control over my cases. If the client didn’t agree with that, the client was free to hire another lawyer.” Chin stated that as a practical matter, the best rule is that the lawyer of record should filter out unnecessary filings or petitions that could compromise a defendant’s case. George, meanwhile, hinted that a rule on pro se filings need not be limited to capital cases. The court is expected to rule on both cases within 90 days.

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