Here’s the quick answer: almost never. If you’re still interested, read the rest of the post. Be warned, though. It is long.
I realize this is a slightly heavy topic for Christmas Day, but such are the conversations I have over lunch. What precipitated this line of thought is this Kansas Supreme Court decision, up for cert. before SCOTUS in the coming weeks.
In Morton, the Kansas Supreme Court held that the [police officer]‘s deliberate misleading of the defendant led to her confession being involuntary. The officer lied to Morton about her need for an attorney during the interrogation and lead her to believe that all he had were clarifying questions. The KS Supreme Court held thusly (more on Morton and CT law after the jump):
All other aspects of the circumstances surrounding this interview indicate that Morton’s statements were voluntarily made. She was a 40-year-old, college-educated woman who had been involved in a criminal investigation in this very matter. There was nothing coercive about the manner and duration of the interview, and there is no evidence she was deprived of contact with the outside world during the interview. In fact, she was explicitly told she did not have to answer any questions, she could stop the interview at any time, and she was free to leave at any time.
However, Morton had an attorney who had represented her during this criminal investigation concerning the trailers and it was her intent and desire to have the benefit of the advice and presence of counsel in this criminal investigation. Had she known Agent Pontius was conducting a criminal investigation, she would not have agreed to the interview without the advice and presence of counsel. We consider this in conjunction with the facts that Morton believed the criminal investigation had ended and the agent’s status as a criminal investigator was not patently apparent. Under these circumstances, by reason of the agent’s conduct, Morton’s participation in the interview and the statements given therein were not the product of her free and independent will. Accordingly, Morton’s statements were involuntary and, thus, inadmissible.
SCOTUS has long held that mere lies and coercion by police do not render a confession involuntary. There has to be a causal relationship between the coercive tactic and the confession. The ultimate test remains:
Is the confession the product of an essentially free and unconstrained choice by its maker? If it is, if he has willed to confess, it may be used against him. If it is not, if his will has been overborne and his capacity for self-determination critically impaired, the use of his confession offends due process.
Of course, the State bears the burden of proving, by a mere propenderance, that the confession is voluntary. That’s not very difficult. And neither is proving that the “he has willed to confess”. In fact, it’s almost impossible to prove otherwise. Consider the cases in CT, which has essentially adopted the same test.
In State v. Lapointe [pdf], the officer lied to the defendant and told him that his fingerprints were found on the murder weapon. No problem. The supreme court writes, albeit in a footnote:
Although we find no causal relationship between the defendant’s confession and the police conduct under the facts of this case, we note that “even where there is causal connection between police misconduct and a defendant’s confession, it does not automatically follow that there has been a violation of the Due Process Clause. See, e.g., Frazier v. Cupp, [supra, 394 U.S. 731, 739].” Colorado v. Connelly, supra, 479 U.S. 164 n.2. For instance, in Frazier, even if the defendant would not have confessed but for the police statement about his associate’s inculpatory remarks, the confession was not thereby rendered involuntary. The inquiry is not merely whether the defendant would have confessed ‘but for” the police conduct, but rather whether the particular defendant’s capacity to resist the police pressure was overborne. See State v. DeAngelis, 200 Conn. 224, 232-33 (1986) (coercive police conduct must overbear defendant’s “will to resist and bring about confessions not freely self-determined” [internal quotation marks omitted]). If the police conduct is insufficient to overcome the defendant’s capacity to resist but the defendant still elects to confess, due process is not offended.
I will give 100 Italian Lire to anyone who can decode that for me. (A footnote in Lapointe and DeAngelis is that the length of an interrogation means nothing. Lapointe was interrogated for over 8 hours and DeAngelis for 10 1/2. Awesome.) The most recent treatment of voluntariness in CT (that I found) was in State v. Pinder [pdf]. In Pinder, the police stat[ed] falsely that the polygraph results would be used against him in court; present[ed] a fictitious Federal Bureau of Investigation (FBI) profile of the killer that included the view that the killer knew the victim; stat[ed] that the victim’s parents had a right to know the circumstances of their son’s death; and emphasiz[ed] that the defendant would be better off if he told the truth to the examiner.
It’s all okay. Doesn’t matter. Because the defendant had “the will to confess”. So the bottom line is that the totality of circumstances will almost always militate toward a finding of voluntariness. Short of a mentally retarded (is it okay to say that in the legal context?) defendant (and even then…State v. Toste, 198 Conn. 584 (confessions of mildly retarded defendant with IQ in 68 to 71 range held voluntary)), it is near impossible to prove an involuntary confession. The Court in Pinder did provide some guidance:
Factors that may be taken into account, ‘upon a proper factual showing, include: the youth of the accused; his lack of education; his intelligence; the lack of any advice as to his constitutional rights; the length of detention; the repeated and prolonged nature of the questioning; and the use of physical punishment, such as the deprivation of food and sleep.’ . . . [State v. Madera, 210 Conn. 22, 41 (1989)]; see also State v. Shifflett, [199 Conn. 718, 728 (1986)].
Now, it is worth pointing out that Pinder was in 1999 and I haven’t found a case since then that re-examined this issue (if there is one, I’m sure some loyal reader will send me an e-mail). Given the greater attention paid to wrongful convictions and forced confessions in recent years, defendants might receive more favorable results if scientific evidence is presented at the motions in limine or during the trial itself. All defense lawyers would be well-served by retaining or consulting a false confession expert these days. There is plenty of scientific evidence available and numerous studies have been conducted. I would love to see appellate court tackle this issue again.
Back to Morton. As the brief in opposition points out, the facts in Morton are very, very unlikely to occur again. I would be surprised if SCOTUS granted cert., and frankly, somewhat worried. It isn’t a case that they need to decide.
An interesting footnote in the Morton cert. petition is that the Respondent (the defendant Morton) filed the brief in opposition herself. While it is clearly written by a non-lawyer, it is actually rather well written for a pro-se party.
So what does this teach us? That you should never, ever confess. Ask unequivocally for a lawyer and keep your mouth shut. If you do confess, your chances at suppressing that confession are slim to none unless you were waterboarded. Except if you consult an expert on false confessions, in which case your chances go solidly into the “slim” column.
It’s been nearly 14 years now since H. Beatty Chadwick was first acquainted with the inside of a prison cell. Chadwick, a rich lawyer in PA, was jailed back in the ’90s for that most serious of crimes: contempt of court.
This wasn’t your run-of-the-mill contempt either, where he told a judge to stuff it. No, Chadwick is in jail for violating a civil court’s order of alimony. So what happened? From this 2005 ABC Primetime piece:
At the very first divorce hearing to set alimony, Bobbie said Beatty told the court he had some bad news. He had given a real estate venture $5,000 and agreed that they could come to him for additional funds — up to $2.75 million if they got in trouble.
It was at the time of the divorce that he says the company came to him demanding that $2.75 million — a figure equivalent to the family fortune.
The judge didn’t believe him and had him jailed for contempt. Since then, he’s been in jail. His only hope for release is forking over the money, if he has it. Back in 2005, it seemed as though he was beginning to co-operate:
So the judge was able to hire forensic accountants to try and track down the money. They should make their report soon — and at that point the judge could decide to set him free.
Two days ago, the Philadelphia Inquirer wrote a follow up story:
Four years ago, both parties decided to have a retired Delaware County judge, A. Leo Sereni, look for the money. After 15 months using two forensic accounting firms, Sereni’s search came up blank.
He recommended that the court release Chadwick.
“I can’t find it,” said Sereni, who now lives in Florida. “Mr. Momjian, he’s spent 10 years, he can’t find it. It is plausible that he’s hiding the money, and it is also possible that in his attempt to hide the money, he got fleeced himself.”
Sereni added that the point of holding Chadwick was to compel him to produce the money: “The purpose of this court order is unworkable and fruitless.”
A panel of three Delaware County judges dismissed Sereni’s findings.
So the very person that both parties hired to find the money was unable to do so. Yet, that report was not believed or implemented.
So what’s holding Chadwick in jail now? It seems like nothing but anger and contempt. If the money’s not there, it’s not there. At some point, shouldn’t there have to be some affirmative evidence that he’s deliberately hiding the money in defiance of the court’s order? If that money doesn’t exist and Chadwick was indeed hoodwinked, then what?
At this rate, Chadwick seems destined to die in prison – without having committed a crime or at the very least without anyone having proven that he’s intentionally defied a court’s order.
Whether he, at some point in the past, had actually hidden the money shouldn’t be relevant anymore. He’s been adequately punished for that. When a judge, hired by both parties, engaged two forensic accounting firms to locate the money and couldn’t, it should be pretty obvious that he doesn’t have it (either that or he’s the best launderer in history). The burden needs to shift, at that point, to someone else to prove that he does have the money. Or let him go.
I’m sure this has been around the ‘net, but one more time, in honor of Xmas:
and Santa needs some cash:
Okay so it wasn’t so much a tree as it was a hotel room and they weren’t kissing but rather “doin’ it”. Apparently, during the trial of Roberto Dunn, two jurors were “deliberating each other” (euphemisms solely mine) and two deputies who were charged with guarding the jurors were also “taking sexual liberties” (that’s a quote).
The strange part of the story is that this trial was in 2000 and the allegations were made by a fellow juror in a letter sent to the judge shortly after the trial. Dunn’s lawyers allegedly put the under seal and “didn’t do enough” to get a new trial. Now, Dunn’s new lawyer is seeking a new trial for him.
Dunn was originally charged with a capital felony, which makes these allegations all the more troubling (although he was eventually convicted of second degree murder).
Lisa Stroup, an assistant public defender now on the case, said the trial attorneys should have called the jurors as witnesses and quizzed them about the claims. That’s what Stroup is doing now.
Earlier this month, [Judge] Bush heard testimony from the letter writer, Jennifer Thompson. Other witnesses will be called Jan. 9, when the hearing continues.
In her letter, Thompson accused two jurors of having sex with each other during two evenings at a hotel where the panel stayed. She said jurors believed the two sheriff’s deputies assigned to the case were having sex with each other while on duty at the hotel.
“Acts of sex and insubordination were scandalous and unspeakable …” Thompson wrote. She testified in the recent hearing that she heard sexual noises coming from the next hotel room.
Seems like the new proceedings are state habeas corpus proceedings, in which the allegations are ineffective assistance of counsel. In addition to the sexual allegations, there were other improprieties as well. A sheriff’s deputy overheard some jurors commencing deliberations prior to the close of evidence. They were questioned briefly but allowed to stay on the same panel. The appellate court, in reviewing the conviction, blamed the trial attorneys:
The Missouri Court of Appeals upheld the conviction. Court documents say Dunn’s original attorneys declined when given the opportunity to present additional evidence of juror misconduct.
“Because defendant failed to establish that misconduct occurred, the state was not required to show that the jurors were not improperly influenced,” the appeals court decision says.
Dunn is lucky that the appellate court left the door open in this fashion. To see such a comment in a decision in a capital case would be a source of embarassment to the capital attorneys I know. How can one represent a defendant in a death case and not push as hard as possible for a mistrial when evidence of juror misconduct surfaces is beyond me.
Whether it is okay for jurors to have sex during deliberations, in a capital case no less, is probably not a question that courts have wrestled with frequently. But what is disappointing (and troublesome) is that this question may finally be answered 8 years after it should have been.
Congrats to Gideon for being named by the CT Law Tribune one of the dozen who made a difference in 2008! The article (“An Anonymous Voice With An Attitude”) isn’t up on the Trib’s website yet, but I will link to it when it becomes available online. Gideon discusses the benefit of blogging, the success of apublicdefender.com, and the difficult task of remaining anonymous.
You definitely deserve the accolades, Gid! Thanks for your hard work and dedication. We are all better lawyers because of it!
[Edit: Hello, Gideon here. Welcome to all the Law Trib readers. If you're new, stick around and read some of the posts. Take the poll and let us know what you are! If you're not new here, then, well...why aren't you commenting? Anyway, readers old and new, leave a comment and start a discussion! If you know what an RSS reader is, subscribe to the feed, or else sign up for e-mail updates over there to the right. Some videos for your enjoyment after the jump. See, we're a full service blog.]
And then there’s this, my other job: