9th Circuit Court of Appeals Innocence

9th Circuit rules it’s mostly okay for LAPD Detectives to have “psychologically tortured” a 13-year-old to get him to confess to a murder he didn’t commit

Celeste Fremon
Written by Celeste Fremon

Did three Los Angeles police detectives violate the law, along with the Fourteenth Amendment of the U.S. Constitution, when they threatened, badgered, and generally terrified a 13-year-old California boy until he confessed to a murder he did not commit?

Or do the detectives have “qualified immunity?”

It is also worth mentioning that this badging and threatening happened without a parent or guardian present (even though the teenager asked for his mom). More importantly from a legal perspective, it also occurred without a lawyer, after the boy had clearly and directly requested an attorney.

According to a new decision by the 9th Circuit Court of Appeals, the answer to the immunity question is yes — at least partially. The ruling filed on April 27, 2021, by a three judge panel concluded, the detectives have qualified immunity because “it was not clearly established that the abusive interrogation techniques used by the officers rose to the level of abuse of power that shocked the conscience.”

(The italics are ours, as the wording “shocked the conscience” refers to a particular 1998 ruling known as Sacramento v. Lewis that held official misconduct violates substantive due process “only if it shocks the conscience or outrages a sense of decency.”)

Thankfully the judges at least agreed that the three detectives do not have qualified immunity when it comes to having violated the teenager’s Fifth Amendment right to counsel.

The story behind the ruling

Around 12:40 a.m., on August 18, 2012, two males of indeterminate age stood on the sidewalk in the 1400 block of Alvarado Terrace in Los Angeles, California, and opened fire at a group of people who were standing in front of an apartment complex.

Twenty-three-year-old Alex Castaneda was killed and two of his friends, Saul Barragan and Leonardo Villanueva, also in their 20s, were wounded.

After the shooting stopped, one of the shooters reportedly shouted, “Salvatrucha” and “Fuck 18th Street” suggesting that the murder related to a feud between local cliques of MS-13 and 18th Street gangs.

Right after the shooting, someone drove up in a red car, picked up the shooters, and sped off.

The LAPD officers who were called to the scene found that a surveillance camera attached to a nearby building had been able record the actions of one of the gunmen. The officers also had descriptions from two witnesses who were able to describe that same gunman as wearing a white shirt. One of the witnesses said the man was 20 to 30 years old. The other said the man who did the fatal shooting was 18 to 19 years old and weighed 190 to 200 pounds.

None of the witnesses, nor the video, indicated that the shooter was wearing glasses.

Nevertheless, the three detectives from the Los Angeles Police Department who drew the case came to quickly focus on a 13-year-old eighth-grader named Art Tobias as their primary shooter.

The young teenager came to the detectives’ attention when the police at the crime scene showed the surveillance video to Marshall Cooley, one of the department’s gang enforcement officers who worked the general area. Cooley said that the shooter shown in the video resembled Art Tobias.

Cooley had never actually met the teenager.

But,  he’d seen photos of him around 9 p.m. that same night when the boy’s mother came into the station with photos of her son, because he hadn’t come home on time, and she was worried.

Unlike the witnesses description of the shooter on the video, young Tobias was 4 feet 11 inches tall, weighed 110 pounds, and wore glasses.  But Cooley still believed the person on the video was the boy whose photo he’d seen earlier in the evening.

It would turn out that Tobias was was miles away during the time at the shooting, at the Arcadia-located home of a school friend, where he reportedly forgot the time. The friend’s mother dropped him at home before midnight, well before the time of the shooting.

But back in 2012, those investigating the case did not believe the alibi story.  After all,  the 13-year-old confessed to the murder of Alex Castaneda — after an intense interrogation in which LAPD Detectives Michael Arteaga, Julian Pere, and Jeff Cortina  told him that he would look like a “cold-blooded killer” if he did not confess, and suggested that if he were to exercise his right to remain silent he would receive far harsher treatment by the court.  Even his mother believed he was the shooter, they told him.

At so it was that Tobias was convicted of first degree murder and sentenced to 25 years in prison.

Eventually, the California Court of Appeal reversed the conviction, concluding — among other things — that Tobias’s confession should have been suppressed by the juvenile court in which he was tried because the detectives failed to respect his unambiguous request for an attorney.

Fast forward to the present, when everyone — including the original arresting officers — agrees that Art Tobias was innocent of the crime for which he was convicted, and not involved with the shooting at all.

Yet, Tobias’ legal fate might easily have been otherwise.

More than a quarter of the people exonerated in recent decades by the nonprofit Innocence Project were convicted after confessing to crimes they did not commit.   But unlike Tobias, many of those who are railroaded through the extraction of a false confession, or some other forms of corrupt or rights-violating actions by police, are exonerated only after spending decades in prison.

A partial legal fix to the problem

On October 11, 2017, then-governor Jerry Brown signed into law SB 395, a bill requiring that youth 15-years-old or younger cannot be questioned in what is known as a custodial interrogation, without first consulting a lawyer—either in person, by telephone, or by video conference. The law, which went into effect on January 1, also prohibits a kid from waving Miranda rights without such a consultation. Furthermore, the young person may not waive that consultation with the lawyer either.

(SB 395 makes an exception when a police officer “who questioned the youth reasonably believed the information he or she sought was necessary to protect life or property from an imminent threat.”)

Of course, this law was not in existence in 2012 when LAPD Detectives Michael Arteaga, Julian Pere, and Jeff Cortina ignored the 13-year-old’s request for an attorney, told him how very much worse things would go for him if he were to exercise his right to remain silent.

So, would SB 395 have prevented the circumstances that led to Art Tobias confessing to a crime he didn’t commit?  Based on the 9th circuit’s ruling last week, which gives the officers involved immunity for the methods they used when questioning the 13-year-old Tobias in 2012, the answer to that question is far from clear.

Top image of interrogation courtesy of Human Rights Watch