Due process for the reviled, Part I

In 1979, a little boy went missing in New York City. He became the face of the missing child, his image appearing in milk cartons, which was the pre-Internet way to publicize missing children. His name was Etan Patz, and his story became well-known as the authorities never found his body and there was never enough evidence to arrest anyone. But in 2017, a jury in Manhattan convicted Pedro Hernandez for kidnapping and murdering the six-year-old boy. That conviction was vacated by the Second Circuit.

The case is Hernandez v. McIntosh, decided on July 21. The problem is that during the police interrogation, Hernandez (who has a history of mental illness and is highly-suggestible, according to his appellate lawyer) confessed to the crimes after approximately seven hours of questioning with any prior Miranda warnings (i.e., you have the right to remain silent, a lawyer will be provided to you if you cannot afford one, etc). Once the police got the confession, they administered the Miranda warnings, and they had Hernandez repeat the confession on video and, later on, to the District Attorney's office. During jury deliberations, the jury asked the judge, "if we find that the confession ... before the Miranda rights was not voluntary, we must disregard the two later videotape confessions" as well as any subsequent confessions. The trial court told the jury the answer was "no." Solely on the basis of the "confessions," the jury then found Hernandez guilty, and the Appellate Division affirmed the conviction. Hence, this habeas petition in federal court.

The Second Circuit (Calabresi, Lohier and Perez) holds the trial judge's "no" was an unconstitutional jury instruction. In Missouri v. Seibert (2004), the Supreme Court held it was unconstitutional for the police to intentionally obtain a confession without Miranda warnings and then to ask the suspect to repeat the confession after they do administer the Miranda warning. This tactic renders the initial confession inadmissible unless the police undertook curative measures to ensure that a reasonable suspect understood the import and effect of the Miranda warnings and waiver. Under Seibert, the Second Circuit holds that the trial court's instruction to the jury ("no") was "manifestly inaccurate."

The complication in habeas cases is that, under the law that Congress passed in the mid-1990s, when it was fashionable to be "tough on crime" and to promote "state's rights," the habeas law was amended to say that even unconstitutional state court criminal trials are OK unless the state court violated clearly-established Supreme Court authority. This means that some convictions may be illegal, but not sufficiently illegal, to justify a new trial. The idea was to respect state court constitutional interpretations; this was a huge change from prior habeas cases, where any unconstitutional state court trial was grounds for a new trial. In this case, since the bad jury instruction could have made a difference in the verdict, the Hernandez verdict was plainly unconstitutional under the amended habeas law, and Hernandez gets a new trial.