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Court upholds conviction of mentally disabled man in child sex abuse

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WASHINGTON – A divided federal appeals court upheld the abusive sexual contact conviction of a mentally disabled Arizona man, refusing to accept his claim that police coerced him into confessing.

But a three-judge panel of the 9th U.S. Circuit Court of Appeals said Tuesday that the district court should reconsider terms of the lifetime probation it gave Tymond Preston, in addition to his 50-month prison sentence for the 2009 assault on an 8-year-old boy.

In a sharply worded dissent, Judge John T. Noonan said the conviction relied on an “involuntary” confession written by police who asked loaded and leading questions of Preston, a man with an IQ of 65 and a “brain ‘like a 5 year old.’”

Preston’s attorney, Keith Swisher, declined comment except to say he expects to appeal the panel’s ruling. A spokeswoman for the U.S. Attorney’s Office in Phoenix said prosecutors would not comment.

But a law professor at the University of California Hastings said the lack of physical evidence “should have at least given the police and courts some pause” in Preston’s case. Hadar Aviram also said that mentally disabled people are more susceptible to pressure when questioned.

The case began at Preston’s home on the Navajo Nation on Sept. 23, 2009, when a boy identified only as “TD” came home crying from Preston’s and told his grandmother he had been sexually assaulted. Police were called and TD was taken to the Safe Child Center at the Flagstaff Medical Center the next day.

At the center, the boy recounted a fantastical version of the assault involving monster trucks, helicopters and police cars. But the forensic interviewer said children often provide diversionary details, court documents said.

The documents also said the nurse who examined TD noted he did not have any bruises, but that did not necessarily mean there had not been abuse. There was DNA evidence found on TD’s underwear that suggested a highly likely link to Preston.

Preston was interviewed for about 40 minutes outside his home by two police officers who asked what the court called leading questions about the event, many of which he did not answer. The officers told Preston that others could place him with TD, and that if he felt sorry for the assault he should confess to the officers and they wouldn’t tell anyone about it.

Noonan wrote that the officers provided nearly every detail of the assault that later ended up in the confession they wrote, and that almost every time Preston answered a question he merely chose the least incriminating of two incriminating options. Noonan likened the responses by Preston, then 18 years old, to those of a kindergartener.

“Loaded questions are difficult for intelligent persons,” Noonan wrote. “For a feeble mind, they are nearly impossible.”

But the majority said that none of the tactics used by police “rises to a constitutional violation.”

The panel did send the case back to the district court with orders to reconsider part of the sentence it imposed on Preston and clarify terms of his probation.

The district court had ordered lifetime probation for Preston after his prison term, during which he cannot possess sexually stimulating material or be in the company of minors without his probation officer’s approval. It also ordered testing with a plethysmograph, which measures sexual arousal.

The appeals court said the lower court needed a more-specific justification for the plethysmograph testing. It also said that other requirements should be narrowed, specifying the types of prohibited materials, for example.

Brian Stull, a lawyer for the American Civil Liberties Union, said this case shows that mentally disabled defendants are particularly vulnerable to being convicted with false confessions.