Fruit of the Poison Tree: Two Confessions Don't Make it Right
Kenneth Lujan's marriage was ending. His wife left him in early 1998. He regularly stalked her after the separation, and when she threatened to get a restraining order, he threatened her life. He was eventually arrested for making terrorist threats and stalking, but it didn't curb his behavior. In early August, he returned to her residence at two o'clock in the morning and chased her inside.
One week later, he drove by her home and saw her becoming "intimate" with Officer Gilbert Madrigal. After seeing them together, Lujan hid in the shadows, waited for them to exit, and then beat them to death with a concrete block.
Confessions
He was taken into custody later that morning, and at 7:35 a.m., a detective, without his printed Miranda card, stated:
Your rights are you have the right to remain silent. Whatever we talk about, and you say, can be used in a court of law, against you. And if you don't have money to hire an
attorney, one's appointed to represent you free of charge. So those are your rights.
The interview ended at 9:05 a.m., followed by a second audio-taped interview, which ended at 10:36 a.m. At 5:40 p.m., a third interview began. During that interview, the following colloquy occurred:
Lujan: Can I have an attorney present?
Detective: You want, you want an attorney present? You feel you need one?
Lujan: Yes I do.
Detective: Okay. All right. If that's what you want to do, we'll do that.
Lujan: Can I get one in here today?
Detective: I really doubt it. I mean, I'm going to be honest with you. It's Sunday evening. When you go to court in a couple of days there will be one appointed for you. That's the way the system is set up. If you have funds and you want to call and hire your own attorney.... that's fine. . . . If you want to make a statement without an attorney, that's up to you. I doubt that if you hire an attorney they'll let you make a statement, they usually don't. That's the way it goes. So, that's your prerogative, that's your choice. Now, if you do want to talk to me without an attorney, that's your choice. You can just tell the jailor, "Hey, I'd like to talk to the detectives without an attorney present." Okay? That's your choice.
Lujan then confessed. He confessed again at trial after the trial court refused to suppress the confession, despite noting that the Miranda warnings were incomplete, as they did not sufficiently advise him of his right to have an attorney present at all times.
The California appeals courts noted both the Miranda error and agreed that the trial court should have suppressed the confession. However, the courts all held the error to be harmless in light of his subsequent confession at trial.
Harris and the Poisonous Tree
Those rulings, however, meet the typically difficult-to-meet AEDPA standard of contrary to "clearly-established federal law." In 1968, the Supreme Court held in Harrison v. United States that testimony given a prior trial is inadmissible in subsequent retrials if that testimony was given to rebut or in response to an unlawfully obtained confession. The testimony also cannot be used in harmless error analysis.
Remedy: Reduced Charges? Retrial?
After granting Lujan's habeas petition, the district court held that the evidence, even without the confessions, supported a second-degree murder conviction, and allowed the state to petition to modify his convictions. The Ninth Circuit reversed this part of the holding, finding the issue of appropriate substitute convictions to be a matter of state law, and instructed the district court, on remand, to allow the state court to determine whether the sentence may be modified.
Related Resources:
- Lujan v. Garcia (Ninth Circuit Court of Appeals)
- Panel Says Unlawfully Obtained Confession Tainted Later Testimony (Metropolitan News-Enterprise)
- Anaheim 'Fast and Furious' Police Shooting Gets En Banc Rehearing (FindLaw's Ninth Circuit Blog)