Jimmy Neuschafer v. Brian McKay Attorney General of the State of Nevada, Respondent

Appellant Neuschafer appeals from the district court’s denial of his petition for habeas corpus, 630 F.Supp. 897 . We remand for an evidentiary hearing on whether Neuschafer’s confession was obtained consistently with the standards set forth in Edwards v. Arizona, 451 U.S. 477 , 101 S.Ct. 1880 , 68 L.Ed.2d 378 (1981).

Neuschafer was convicted under Nevada law and sentenced to death for the murder of a fellow inmate. An account of the crime is in the opinion of the Nevada Supreme Court affirming the judgment. Neuschafer v. State, 101 Nev. 331 , 705 P.2d 609 (1985). Among other contentions in the habeas proceeding here and in the district court is Neuschafer’s assertion that his constitutional rights were violated by use of a confession derived from an interrogation begun four days after he requested a lawyer and none was provided. Under Edwards , Neuschafer’s confession was illegally obtained unless, first, he initiated the interview that led to the confession and, second, knowingly and intelligently waived his right to counsel. Edwards, 451 U.S. at 484-85 , 486 n. 9, 101 S.Ct. at 1884-85 , 1885 n. 9; see Oregon v. Bradshaw, 462 U.S. 1039, 1044-45 , 103 S.Ct. 2830, 2834 , 77…

If there be error in the record before us, I find it harmless. All I may say will not change the mind of any judge on the panel.

My Sister and Brother, I cannot believe that they think there is any doubt as to Neuschafer’s guilt. I read the majority as simply saying our district judge can make a better record and should not indulge in a gamble by one of our en bancs or risk the Supreme Court handling the case now. We cannot escape either. My belief is that a remand will only delay the conclusion of the case. Also, I believe we ought to get the case to the Supreme Court right now.

Now for a little musing:

America seems to have lost its former demand that the death penalty be enforced and promptly in those cases where it is appropriate. So, as a voter at the polls, I would vote against the penalty, likewise if I were a legislator. Of course, it is reaching the point where the death penalty does become a life sentence and the death rate from old age will be the cause of death for most of those under death sentences.

But I do fear the public is getting aroused. We may see a lot of blood letting such as we have had in California recently and community indignation may slip over to…

807 F.2d 839 Jimmy NEUSCHAFER, Petitioner-Appellant, v. Brian McKAY, * Attorney General of the State of Nevada, Respondent- Appellee. No. 86-1909. United States Court of Appeals, Ninth Circuit. Argued and Submitted Nov. 13, 1986. Decided Jan. 6, 1987. N. Patrick Flanagan, Asst. Federal Public Defender, Federal Public Defender's Office, Reno, Nev., for petitioner-appellant. David Sarnowski, Deputy Atty. Gen., Brian R. Hutchins, Asst. Atty. Gen., Atty. General's Office Carson City, Carson City, Nev., for respondent-appellee. Appeal from the United States District Court for the District of Nevada. Before CHAMBERS, KENNEDY, and HALL, Circuit Judges. KENNEDY, Circuit Judge: Appellant Neuschafer appeals from the district court's denial of his petition for habeas corpus, 630 F.Supp. 897 . We remand for an evidentiary hearing on whether Neuschafer's confession was obtained consistently with the standards set forth in Edwards v. Arizona, 451 U.S. 477 , 101 S.Ct. 1880 , 68 L.Ed.2d 378 (1981). Neuschafer was convicted under Nevada law and sentenced to death for the murder of a fellow inmate. An account of the crime is in the opinion of the Nevada Supreme Court affirming the judgment.…