McCarthy v. Hernandez · ¶39

Hernandez correctly declines to argue that Seibert required the trial court to instruct the jury on attenuation in its initial charge. App. 93a (“Hernandez does not argue that Seibert compelled the trial court to instruct the jury on attenuation in its initial charge”). As Hernandez concedes, Seibert did not require the trial court to instruct the jury on attenuation in its response to the jury note either. Brief in Opposition 22. That conclusion does not change merely because the jury “focused on this question” or because the legality of the confessions was “an issue central to the trial.” Hernandez, 146 F. 4th, at 157, 162. Those contingent features of Hernandez's prosecution could not, as the panel seemed to think, turn Seibert's discussion of circumstances in which a judge should suppress a confession into clearly established federal law about an issue that juries must “fully…

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