UNITED STATES OF AMERICA v. ROBEL KIDANE PHILLIPOS (2017)

ORDER OF COURT

Petitioner Robel Kidane Phillipos has filed a timely petition for rehearing en banc. Petitioner and amici curiae the MGH Center for Law, Brain, and Behavior, the Innocence Project, and the American Psychological Association contend, among other things, that the panel erred in concluding that the District Court did not abuse its discretion in excluding testimony on false confessions from Dr. Richard Leo. See United States v. Phillipos, 849 F.3d 464, 471-72 (1st Cir. 2017). Petitioner and amicus curiae the Massachusetts Association of Criminal Defense Lawyers separately contend that the panel erred in ruling that it was not an abuse of discretion for the District Court to deny the defendant an evidentiary hearing on the voluntariness of his confession. See id. at 468-69.

Pursuant to First Circuit Internal Operating Procedure X(C), we construe a petition for rehearing en banc also as a petition for rehearing before the original panel. The petition for panel rehearing is denied. We clarify that our conclusion that “the record certainly shows that the [decision] the District Court reached is reasonable,” Phillipos, 849 F.3d at 471-72, refers to those portions of the District Court's ruling that concern what the record shows regarding the proposed testimony of Dr. Leo in particular, and not to those portions of the District Court's ruling that appear to express skepticism more generally about research regarding false confessions. We also emphasize that the defendant, in seeking an evidentiary hearing on the basis of his own affidavit, declined to commit to being cross-examined about that affidavit, even in the event that the District Court determined at the evidentiary hearing that such cross-examination would be necessary to determine the credibility of the allegations in the affidavit.

By the Court:

Margaret Carter, Clerk