Legal Updates Spring 2016

Detective erroneously associates “sleep deprivation” with the Reid Technique

In Crafton v. District of Columbia, et. al., Defendants (September 2015) reference is made that when questioning the suspect, Kim Crafton, the detective conducted a “lengthy, grueling 17-hour videotaped interrogation…during which he used flawed techniques of interrogation, including sleep deprivation, that he had been taught by the Metropolitan Police Department, known as Reid training.” We certainly want to set the record straight that under no circumstances or at anytime in any of our training programs or publications or books have we ever advocated sleep deprivation as an interrogation technique. Furthermore, we point out in our book that if the subject remains adamant in their denials after a 3 to 4 hour period the investigator should re-evaluate the situation - he may be dealing with an innocent suspect. We teach that an excessively long interrogation can be a significant factor in false confession cases.

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Plaintiff claims Northwestern University Medill School of Journalism framed him for murder

In Simon v. Northwestern University (March 2016) the US District Court, N.D. Illinois, the Plaintiff alleges that the faculty of Northwestern University's Medill School of Journalism Defendants' unethical journalistic and investigative practices led to his wrongful conviction and 15-year incarceration for a double murder that he did not commit. More specifically, Plaintiff alleges that Defendants knowingly falsified evidence and disseminated that evidence to the prosecuting authorities to frame Plaintiff for the murders.

Some of the alleged unethical and investigative practices include writing a letter to a key eyewitness on Medill School of Journalism letterhead advising the witness that his monetary rights to his story were contingent on his story aligning with Northwestern's view of the case; posing as a Hollywood producer in a witness interview to add gravitas to their promise to the witness that he could reap huge financial rewards for his story; using female students to sexually flirt with witnesses in order to manipulate their testimony; and allegedly telling one eyewitness “that he could have sex with either of two Northwestern Medill students if he would change his testimony

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Lying about DNA evidence is not coercive

In Demarest v. Secretary, Dept of Corrections (March 2016) the US District Court, M.D. Florida, upheld the lower court’s ruling that lying about DNA evidence is not coercive. From the court’s opinion:

Demarest claims that the state trial court erred in denying his motion to suppress his confession, resulting in a violation of his constitutional rights. In his motion to suppress, Demarest asserted …. that police lied about the presence of DNA evidence to intimidate him into confessing. From the court’s opinion:

….. However, misstating the evidence, without more, is not the type of coercive police activity that results in an involuntary confession. See Frazier v. Cupp, 394 U.S. 731, 739 (1969) (an officer's false statement that suspect's companion confessed was insufficient to render the suspect's statement involuntary). Accordingly, misrepresentations of fact “are not enough to render a suspect's ensuing confession involuntary.” United States v. Lall, 607 F.3d 1277, 1285-86 (11th Cir. 2010). “Misleading a suspect about the existence or strength of evidence against him does not by itself make a statement involuntary.” United States v. Farley, 607 F.3d 1294, 1328 (11th Cir. 2010). Rather, “courts have held statements involuntary because of police trickery only when other aggravating circumstances were also present.” Id. (citing United States v. Castaneda-Castaneda, 729 F.2d 1360, 1363 (11th Cir. 1984)). Thus, “statements have been held involuntary where the deception took the form of a coercive threat, or where the deception goes directly to the nature of the suspect's rights and the consequences of waiving them.” Id. (citations omitted).

Furthermore, there is no evidence to indicate that any threats were made against Demarest, that anything was promised to him, or that the officers pressured him into making either written or oral statements. Nor does the record support a finding that the officers' misstatements regarding DNA evidence were accompanied by, or amounted to, a coercive threat or other aggravating circumstance that deceived Demarest about the nature of his rights or induced his confession.

Accordingly, the totality of the circumstances under which Demarest confessed reflects that his confession was voluntary and was not coerced by police misinformation about the existence of DNA.

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Use of falsified documents purporting to represent the official results of a state-police lab's DNA examination was coercive

In Gray v. Commonwealth (February 2016) the Supreme Court of Kentucky ruled that the defendant’s confession was coerced through the use of false evidence. From the court’s opinion:

Interrogators presented Gray a fake document purporting to originate from the Kentucky State Police linking his parents' DNA to his vehicle….. The most troubling claim of error Gray presents to us on appeal is whether the trial court erroneously failed to suppress the confession Gray gave to law enforcement. The Commonwealth does not dispute that interviewers used false statements and fabricated documents as a technique to coax Gray into admitting he murdered his parents….. Police trickery is not new to our criminal procedure jurisprudence, but today's actions exceed any reasonable leeway our case law has previously afforded law enforcement.

A confession obtained by police through trickery is not a new issue for us….. “the mere employment of a ruse, or ‘strategic deception,’ does not render a confession involuntary so long as the ploy does not rise to the level of compulsion or coercion.” In essence, we have refused to hold that intentional police misinformation by itself makes a confession involuntary.

Beginning our analysis of whether Gray voluntarily confessed, we first ask whether the police activity was objectively coercive. The false statements and fabricated documents are critical to our inquiry. Statements deceptively overstating the evidence against a criminal defendant during interrogation fall within the trickery we have traditionally tolerated. But we have never faced a situation where deceptive interrogation tactics included fake reports made to link DNA evidence to the defendant. (emphasis added)

Although we must decline to adopt for Kentucky a bright-line rule that the use of falsified documents is objectively coercive in all situations, we think the risk of constitutional infirmity is so severe that a petitioning defendant is entitled to a presumption in his favor. As is the case with other constitutional liberties, here we must place the burden on the Commonwealth to prove it did not abuse its power. When a criminal defendant, like Gray, can establish that the police use falsified documents to induce a confession, we will presume this tactic is unconstitutional until the Commonwealth can firmly establish that the document(s) did not overwhelm the defendant's will and was not a critical factor in the defendant's decision to confess.

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Court finds that the investigator fabricated the plaintiff’s confession “out of whole cloth”

In Peacock v. City of Rochester, et. al., (May 2016) the US District Court, W.D. New York, found that the investigator in the case fabricated the plaintiff’s confession and as a result, denied defendant’s motion for summary judgment and that the claim for the denial of a fair trial based on the fabricated confession may proceed. From the court’s opinion:

Sometime after 7 a.m. on July 23, 1976, [Investigator] Wernsdorfer typed up a document called an “oral synopsis,” which he claimed contained most of the statements Plaintiff made regarding the rape. According to Wernsdorfer's oral synopsis, Plaintiff repeatedly made such admissions as “I did it,” “I raped her, I raped the girl,” “I was sick,” and “It's the only thing I can say.” … In addition, Plaintiff allegedly said that he “could not remember the details of the rape, but that he knows that he did rape her, because when he gets that urge, he knows he cannot control himself.” … Plaintiff consistently and repeatedly has denied any involvement in or knowledge of the rape, and has denied making any of the statements attributed to him by Wernsdorfer.

At trial in December of 1976, Wernsdorfer testified that Plaintiff had spontaneously repeatedly confessed to the rape. … After a 3-day trial, the jury returned a verdict finding Plaintiff guilty as charged in the indictment….On January 11, 2008, with the help of The Innocence Project, Plaintiff filed a successful post-conviction motion for DNA testing on biological evidence obtained during the investigation of J.W.'s rape. The test results identified a single male DNA profile in the sperm fraction deposited on the underwear worn by the victim during the attack. Plaintiff was definitively excluded as the source of the DNA profile.

With regard to the fabrication element, the Court finds that the record permits a reasonable jury to conclude that Wernsdorfer concocted Plaintiff's confession out of whole cloth. Plaintiff consistently has testified that he did not commit the rape and has denied ever confessing to the police, instead explaining that he merely was asked by the officer to sign a blank statement form (which he declined to do). Moreover, Plaintiff's protestations of innocence ultimately were borne out by the DNA test results.

Wernsdorfer, on the other hand, testified that Plaintiff spontaneously and repeatedly confessed to the rape after about 20 to 30 minutes of non-aggressive interrogation. Although Wernsdorfer's and Plainiff's discrepant versions of the interrogation, standing alone, give rise to a genuine issue of material fact, there is additional evidence that could lead a reasonable jury to find that Wernsdorfer fabricated the confession. Wernsdorfer's colleague, Markel, has conceded under oath that Plaintiff never made any admissions during the interrogation. While Markel claims ignorance of the existence of Plaintiff's purported confession until he was deposed in this matter, a reasonable jury could find this unworthy of belief, given Markel's direct participation in the investigation, interrogation, and prosecution. Furthermore, there were procedural irregularities in Wernsdorfer's “recording” of the confession. Although the RPD's well-established policy and practice calls for, whenever possible, a stenographically recorded confession or a statement written out and signed by the subject, the “oral synopsis” of Plaintiff's confession, to which Wernsdorfer testified, was written out by Wernsdorfer himself and not signed by Plaintiff… Wernsdorfer testified that despite the department's general policy and his own usual practice, he thought it was unnecessary to have Plaintiff write out and sign his own statement. A reasonable jury easily could disbelieve Werner's proffered explanation for not, at a minimum, obtaining Plaintiff's signature on the oral synopsis.

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Promises to the defendant he would not face criminal charges if sexually touching a seven-year-old child was a mistake or accident was coercive

In State v. Reynolds (April 2016) the Supreme Court of Vermont upheld the lower court’s ruling that it was coercive for an investigator to make promises to the defendant that if he would admit to a mistake or accidental sexual touching of a seven-year-old child he would not face criminal charges.

In late December 2013, a police detective contacted defendant and asked if he would come to the station to discuss a neighborhood complaint. Defendant agreed to help if the detective would come to his house instead. The detective arrived in plainclothes with no visible weapon. He was accompanied by a caseworker from the Department for Children and Families.

After about four minutes, the detective disclosed the general reason for his questions. He told defendant that Z.Z. had “talked about some inappropriateness that went on.” Defendant was audibly taken aback. Defendant agreed with the detective that Z.Z. was not the type of child who would make things up or try to get someone in trouble. When defendant continued to indicate no understanding of where the conversation was headed, the detective stated that Z.Z. had “talked about touching each other's privates.”

After half an hour of talking to the detective, defendant admitted to inappropriately touching Z.Z. Defendant told the detective that “It just happened.... Like you said.” He then answered yes or no to the detective's targeted follow-up questions. The court found that defendant offered almost no details of his own…. According to defendant, he confessed because he believed it was the only way to end the interrogation, and he believed the detective was promising him treatment, not jail, as long as he said that the touching was a mistake.

Most importantly, the court found that the detective made a series of promises that if defendant would admit to a mistaken or accidental touch, he would not face criminal sanctions, and defendant testified that this played a significant role in his confession.

We agree with the trial court that the totality of the circumstances here shows that “coercive governmental conduct played a significant role in inducing” defendant's confession…. Our conclusion is based on the detective's inappropriate promises of leniency, coupled with the detective's misrepresentation of his authority.

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Expert should have been allowed to testify re defendant’s mental disabilities on issue of confession reliability

In US v. West (December 2015) the US Court of Appeals, Seventh Circuit held that expert testimony regarding defendant's mental disabilities was relevant on the issue of the reliability of his confession, and the erroneous exclusion of such expert testimony warranted a new trial. From the court’s opinion:

Antonio West was indicted for possessing a firearm as a felon….. The government's case for possession rested heavily on West's admission to the police that the gun was his.
West's attorney moved to suppress the statement based on expert testimony of Dr. Steven Dinwiddie, a forensic psychologist who examined West and administered a number of psychological tests, including the Gudjonsson Suggestibility Scale, which showed that he was prone to changing his answers when confronted by an authority figure; that West has a low IQ, and suffers from mental illness. The district judge denied the motion, finding that West was competent to waive his Miranda rights and did so voluntarily.

Dr. Dinwiddie's expert testimony would have explained West's low IQ and mental illness and how these combined conditions might have influenced his responses to the officers' questions while in police custody. We think it plain that expert testimony that West is a suggestible, mentally ill person with a verbal IQ of 73 bears on the reliability of his statements to police. Testimony of this type is highly relevant to the jury's consideration of a defendant's “personal characteristics”—exactly the sort of evidence that a jury ought to be permitted to hear to assess the trustworthiness of the defendant's statements to the police.

More importantly, the defense wasn't proposing that Dr. Dinwiddie offer an opinion about the trustworthiness of the confession, only that he be allowed to explain West's mental disabilities. The expert evidence was improperly excluded.

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Suggesting to the defendant that he might get a better deal if he was “first to the table” and that he should consider the impact it would have on his son if he was in prison were not coercive statements

In US v. Woodley (May 2016) the US District Court, E.D. Michigan, upheld the lower court’s decision that statements suggesting to the defendant that he might get a better deal if he was “first to the table” and he should consider the impact it would have on his son if he was in prison were not coercive. From the court’s opinion:

Woodley argues that his alleged confession was involuntary because the officers used coercive tactics during the interrogation….The video makes clear that the officers did not coerce Woodley through any threatened or physical force. Nor did they verbally abuse him in any way. And the officers provided Woodley with relatively comfortable surroundings. Woodley's claim is thus based on the content of the Officers' statements, not the manner in which they were made. In particular, the officers suggested that Woodley might get a better deal if he was “first to the table,” explained that carjacking carried a long prison sentence, urged Woodley to consider the impact on his son if he were to go to prison, and suggested they could link him to other carjackings if he did not cooperate.

Regarding the officers' statements implying that Woodley would get a better deal if he was “first to the table,” the Sixth Circuit has noted that “[a] promise of leniency in exchange for cooperation may be a relevant factor in determining whether a confession was involuntary,” but “such statements usually are permissible.” … Here, the officers merely suggested to Woodley that if he cooperated, he might be able to obtain a lower sentence if convicted. These statements were not false or illusory…. And all the officers did here was speculate. They said, “usually the first man to the table gets the best deal” (Video at 22:13), and, “First to the table, we could work with that,” (Id. at 22:47). These speculative statements did not render Woodley's subsequent confession involuntary.

Nor was it coercive for the officers to suggest to Woodley that he would face a long prison term if convicted. “A truthful and non-coercive statement of the possible penalties which an accused faces may be given to the accused without overbearing one's free long as the statement results from an informed and intelligent appraisal of the risks involved rather than a coercive atmosphere, the statement may be considered to have been voluntarily made.” … Informing Woodley of the potential sentence he was facing was not objectively coercive.

And telling Woodley that he would not have much contact with his son if he were to receive such a prison sentence was not objectively coercive either. Though the officers told Woodley that he would not see his son and that if he were to be imprisoned, someone else might end up raising his son, they did not threaten any legal or economic consequences to Woodley's son.

Over the course of nearly four hours, the officers painted a realistic picture of Woodley's situation and the process that was about to unfold. They did not make any illusory promises, nor did they make any unfounded threats to either Woodley or his son. While these statements may have upset Woodley, they did not rise to the level of coercive police activity.

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Value of video recording the interrogation to demonstrate confession voluntariness

In McCray v. US (March 2016) the District of Columbia Court of Appeals upheld the lower courts admission of the defendant’s incriminating statements in which the video taped interrogation played a critical role in determining the voluntariness of those statements. From the court’s opinion:

Mr. McCray argues that “the totality of the circumstances require a suppression of [his videotaped] statement.” He emphasizes his youth (age seventeen) at the time his videotaped confession occurred and maintains that his “confession ... should have been suppressed as involuntary.”

After indicating that he had again reviewed the videotape (parts of it several times) and reviewed case law, Judge Greene summarized his observations about the videotape in detail and articulated the “facts [that] emerge[d]”; he also reached conclusions drawn from the facts…. After reviewing the giving and waiver of Miranda rights, Judge Greene concluded that Mr. McCray “fully understood his rights and that he knowingly waived them” after initially invoking his rights. With respect to the question of “trickery,” Judge Greene stated that the detectives' statements to Mr. McCray “were not always entirely truthful and may have stretched the truth,” but “much of what they told him that could be viewed as most compelling in his decision to talk was that he already had been indicted by the grand jury. And, in fact, he had been indicted the day before his arrest.” Moreover, Judge Greene found that Mr. McCray “[n]ever appeared intimidated or affected in any way by Detective Weeks raising her voice in response to similar conduct by the defendant.”

… the judge declared, “Observing him in that interview ... I don't see how anyone could conclude that his will was ever overborne. He was thinking a whole lot about what was going on and what he would do about it. He was very calculated in how he responded.” Furthermore, “[w]hile [Mr. McCray] was 17, he was certainly a mature 17 for purposes of the criminal justice system”; “he did not have any obvious disabilities”; “[t]here were no police promises of leniency in exchange for the statement,” and no “badgering of the defendant.” As a result of these findings, Judge Greene denied the motion to suppress statements, concluding, finally, that “there are no separate indicia here ... that would prompt the [c]ourt [to] exclude those statements on voluntariness grounds.”

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Questioning the defendant at the scene of a stabbing was not custodial interrogation

In People v. Cornelius (March 2016) the Supreme Court, Appellate Division, New York ruled that questions asked at the scene of a stabbing did not constitute custodial interrogation which required Miranda warnings. From the court’s opinion:

On November 7, 2011, police responded to West 137th Street in New York County and learned from EMS workers at the scene that defendant's companion, Christopher Joseph, had been stabbed. After she came downstairs from the apartment, defendant spoke to a uniformed police officer who asked her what had happened; defendant ultimately gave two different accounts of the stabbing. During the time that the officer was speaking with defendant, police did not search or handcuff her or tell her that she was under arrest.
At the request of police, defendant went to the precinct to discuss the incident with detectives.

[at the precinct] Defendant then gave detectives another account of the incident. She first repeated that Joseph had been injured when he fell to the floor, but after the detective opined that her story made no sense, she changed the account. In the second account, defendant stated that Joseph had physically tried to prevent her from leaving the room after the two had had an argument. According to defendant, she fell to the floor, hoping Joseph would let her go. When Joseph continued to hold defendant down, she picked up a kitchen knife and began to swing it, stabbing Joseph.

The court properly denied defendant's motion to suppress the statements that she made both before and after she received her Miranda warnings. The People established that the pre-Miranda statements were not the product of custodial interrogation, because a reasonable innocent person in defendant's position would not have thought she was in custody… Although the officer at the scene asked defendant some questions about what had happened, questions posed in an attempt to gather information about the circumstances surrounding a possible crime do not constitute custodial interrogation for the purposes of Miranda… Further, there is no evidence that, during the pre-warnings period, any officer compelled defendant to go or remain anywhere, or created the impression that she was not free to leave.

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Minimizing the seriousness of the crime is not coercive

In State v. Fouts (March 2016) the Court of Appeals of Ohio upheld the trial court’s finding that the defendant’s confession was voluntary; rejecting his claim that the interrogator’s effort to minimize the seriousness of his actions was coercive.

A jury convicted Douglas W. Fouts of gross sexual imposition and attempted unlawful sexual conduct with a minor; the trial court sentenced him to prison and Fouts filed this appeal, arguing in part, that his statements were involuntary because the police engaged in deceptive practices by minimizing the seriousness of his actions.

The record of the suppression hearing shows that Fouts was a 40–year–old man with no apparent mental deficiency who had worked in the real estate business and had previous criminal experience arising from a grand larceny charge. He voluntarily drove himself to the police station and was questioned for approximately 30 minutes. During the interview the officer told Fouts she did not believe he had raped the minor. The officer testified that she never told Fouts that if he confessed there would be no charges. Fouts neither alleges, nor do we find, any evidence that the police officer made statements constituting direct or indirect promises of leniency, or that she made representations concerning sentencing or probation. Likewise, there is nothing in the record that suggests the officer made any misrepresentations of the law.

Fouts's argument is that the officer minimized his offense by telling him she did not believe he committed rape. We find nothing deceptive about this statement; the officer testified that the minor's factual allegations did not include rape. The other possible statements in the record that arguably minimized Fouts's offense were the officer's statement that she believed he “made a mistake” and “mistakes can be fixed”, and her characterization of what might have happened the night before as “iffy.” However, we find nothing about those vague and indefinite statements that would render his confession involuntary.

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Defendant suffering from withdrawal is capable of giving a voluntary confession

In Kott v. Cain, Warden (October 2015) the US District Court, E. D. Louisiana upheld the trial court’s decision to admit the defendant’s incriminating statements and rejected his claim that because he was suffering through withdrawal from painkillers he was not capable of giving a voluntary statement. From the court’s opinion:

Kott alleges that the inculpatory statements he made to police were the result of police coercion, because the officers withheld his medication which caused him to go into withdrawal. According to Kott, he was addicted to his legally prescribed painkillers, which he admittedly abused, and was in severe withdrawal after hours of interrogation. Kott alleges that he asked for his medication multiple times, and that the police offered him his medication in exchange for a confession—thus, the statements that he made were not given voluntarily, but rather as the result of police coercion.

The state trial court properly conducted a full evidentiary hearing on the admissibility of the inculpatory statements, and took the issue under advisement before issuing an opinion on the matter. The trial court received testimony from the officers, as well as evidence in the form of a waiver-of-rights form and the written statements. The trial court concluded that while Kott certainly wanted his pills, the police did not use them to induce or coerce his confession.

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The value of video recording the interrogation to refute false claims of promises of leniency

In US v. Carter (January 2016) the US District Court, S.D. Georgia, found that the defendant’s statements were entirely voluntary and were not the product of any “implied promise” of a reduced sentence or other benefit. From the court’s opinion:

Defendant Leon Carter (indicted on gun charges) has moved to suppress the incriminating statements … As defense counsel explained at the hearing, “the main thrust” of Carter's suppression motion is that the agents effectively coerced his confession by conveying the impression that he would receive a shorter sentence if he cooperated.

The notion that the agents promised Carter a lower sentence in exchange for his cooperation is squarely refuted by the record. From the actual recording the Court verbatim illuminates the heart of the exchange, where Agent Crawford told Carter:

Um ... so I know for a fact that you've had guns. Alright, I know for a fact that you've passed guns around and that kinda stuff. Look, and I want to get one thing straight with ya, okay? Um, we can't, I don't, I don't want you [to] misconstrue anything that I say as being a promise or some kind of leniency or anything like that you may, you know, that you, that you would like to get. Of course, everybody wants to get out of trouble and this that and the other, but at some point in this process, you know ... it ... how the federal system works is, if a guys goes admits that he done wrong, or she done wrong, then they get what they call “acceptance of responsibility.” So, and what that means that everything in the federal system is on a point scale. If you got a really bad criminal history you have a lot of points. So that equates to more points equals time. Just think about it like that. Um, and if you automatically, you know off the bat, you know, start doing the right thing and accept responsibility and you are willing to give information about other crimes and all that is a point deduction, on most cases. Now, you have to keep in mind that I have no say so in points. I document what people tell me, but this has been my experience in the federal system. The points deductions come from decisions made by the United States Attorneys' Office, and probation, and the judges, and that kind of stuff.

Carter cites no raised voices, physical threats, the promise of a lower sentence, or anything beyond a general recitation of how the criminal justice system works and the potential benefits that accrue to those who cooperate.

As one commentator has noted, statements inducing the hope of leniency in the mind of the suspect “ 'are only objectionable if they establish an express quid pro quo bargain for the confession.' ” 2 Wayne R. LaFave, Criminal Procedure § 6.2(c) at 624 n. 101 (3rd ed.2007). A “mere prediction ” of favorable treatment upon cooperation, unlike a promise of a lower sentence, does not qualify as a will-overbearing coercive tactic, id. at 624 n. 100, even where that prediction turns out to be wrong.

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Promises of leniency and threats of the death penalty are coercive

In Bussey v. State (November 2015) the District Court of Florida, Second District, over ruled the lower court and found that the investigator made promises of leniency and threats of the death penalty, making the defendant’s incriminating statements involuntary.

On January 5, 2012, a grand jury indicted Bussey for the first-degree premeditated murder. Prior to trial, Bussey filed a motion to suppress statements he made to two Pinellas County Sheriff's Office detectives during an interrogation in Lowndes County, Georgia, on January 2, 2012.

The detectives told Bussey that it was “[o]ne of two options,” that he “either walked in that store to kill a man or [he] walked in there to do a robbery and something accidentally ... went bad.” Bussey repeatedly denied that he ever visited the store or committed the robbery, and he insisted that he was being honest with them. The detectives told him that he could get the “needle because of that damn—that stupid way of thinking.” Bussey continued to deny his involvement, and the detectives continued to tell him that he had two options. One detective said “[y]ou killed a guy in cold blood,” and the other detective said “[y]ou made a mistake.”

The detectives told him that he was not a cold-blooded killer and that it was a mistake. But they warned that if he continued to deny his involvement, they were going to end the interview and charge him with “first-degree murder” and “seek the death penalty.” … Bussey asked, “[I]f it's a mistake robbery, what is my time?” One detective that said he was not going to talk about time but that he would tell the state attorney if Bussey accepted responsibility. But the detective did promise that if Bussey continued to deny being in the store, the detective would be “seeking the death penalty.” But the detectives reiterated that they could try to help him out if it was a mistake. Bussey asked three more times if they were going to charge him with “mistake of robbery.” The detective said, “Darius, I'm gonna charge you with a robbery. Okay? But I need you to tell me what happened. I need you to be honest with me.” It was at that point that Bussey said “I will” and then “I ain't even know the gun went off, to be honest.” He then answered questions about the offense, explaining that he had ridden a bike to the store, that he had been wearing the clothes in the video but ditched them in a dumpster, that he threw the gun in a drain sewer, and that the gun went off accidentally. At the end of the interview, Bussey stated twice that “I just don't wanna get charged with no murder.” He stated, “I'll be good with robbery, but I can't get charged ... with no murder.” One detective said, “It's not up to us,” and the second detective said, “You can at least live now.”

And while the detectives accurately explained to Bussey that he could face the death penalty for the charge of premeditated murder, they repeatedly misled Bussey regarding what charges and penalties he could face if the victim's death was the result of what they referred to as an “accident” or “mistake,” i.e., a robbery resulting in a death.…The detectives misled Bussey into believing that if he confessed to the victim's death being an accident, he would be charged with robbery, not murder, and he would not face the death penalty…. And even after he admitted to the robbery, Bussey was still under the impression that he would not be charged with murder, as indicated by his comments at the end of the interview.

Based on the totality of the circumstances, we conclude that Bussey's statements were the result of coercion.

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If invocation of right to remain silent is ignored the resulting confession is inadmissible (“I'm done talking. I don't wanna talk no more.”)

In Commonwealth v. Smith (March 2016) the Supreme Judicial Court of Massachusetts overturned the lower court’s decision that the defendant’s incriminating statements were admissible. From the court’s opinion:

After administering Miranda warnings to the defendant and obtaining his agreement that he understood the warnings and was willing to talk to the police, Tarckini, with periodic questions or statements inserted by Escobar, told the defendant the following: the police had video footage of him sitting in the victim's Lexus and running from that vehicle after the gunshot was heard; there was deoxyribonucleic acid (DNA) and fingerprint evidence belonging to him in the Lexus; people had identified him as the shooter; and the police had recovered his eyeglasses from Madison's apartment with the defendant's DNA on them .

For approximately thirty minutes, the defendant's repeated responses to these assertions by the police were to the effect that he did not know what they were talking about, and he denied knowing the victim or the fact that she had been shot and killed. Then, the following exchange occurred:

Defendant: “I'm done.”
Tarckini: “You're done with what?”
Defendant: “I'm done talking. I don't wanna talk no more.”
Tarckini: “You don't wanna talk anymore?”
Defendant: “No. ‘Cause y'all really don't believe me.”
Tarckini: “It's—We already tried to explain that to you, Donovan. I don't think you get it.”
Defendant: “Yeah, I understand.”
Tarckini: “It's not believing.”
Defendant: “I understand, sir.”
Tarckini: “It's not believing. It's what we know.”
Defendant: “Okay.”
Tarckini: “What the facts are.”
Defendant: “What the facts show.”
Tarckini: “Right.”
Defendant: “Right.”
Tarckini: “Right?”
Defendant: “Yes.”

…Eventually the defendant stated: “I didn't shoot nobody,” and then he proceeded to make a series of inculpatory responses to questions by the officers. He described a plan among Ago, Madison, and himself to rob the victim, and detailed what happened after he got into the victim's automobile, including that he was in it on the day of the shooting.

The defendant contends that although he initially waived his Miranda rights, he later invoked his constitutional right to remain silent when he said that he was “done talking,” an invocation that the police did not “scrupulously honor.”

“It is clear that a defendant has not only the right to remain silent from the beginning but also a continuing right to cut off, at any time, any questioning that does take place.” … In these circumstances, the defendant's statement, “I'm done,” by itself, was ambiguous, coming as it did as a nonresponse to a long series of statements by Tarckini and Escobar about what the police already knew. In this context, Tarckini's question to the defendant, “You're done with what?” was an appropriate effort to clarify…. But the defendant's immediate and direct answer, “I'm done talking. I don't wanna talk no more,” was certainly a clarifying response to Tarckini's inquiry, one that resolved completely the previous ambiguity, and asserted in no uncertain terms the defendant's desire and intention to end the interrogation.

As discussed, when the defendant invoked his right to terminate questioning, the police were required immediately to end the interview. At that point, all questioning should have ceased, and it follows that the recording of the interview also should have ceased. That is not what happened.

Adherence to the principle that the defendant's constitutional right to cut off questioning must be “scrupulously honored” leads us to conclude that, in the particular circumstances presented here, all portions of the defendant's statement procured after he invoked his right to remain silent were inadmissible, including the volunteered statement .

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7 hour interrogation not coercive

In Ross v. Miller (April 2016) the US District Court, S.D. New York upheld the conviction of the defendant, rejecting his claim that the length of the interrogation was a coercive factor. From the court’s opinion:

As to Ross's specific claims, Justice Farber noted that although this was a lengthy interrogation, it did not amount to coercion and Ross gave the statements voluntarily. Though the police arrested Ross at 6:30 a.m., Detective Byrne did not begin questioning him until nearly 1:00 p.m. Then, between 8:30 and 9:00 p.m., Ross began to confess. Therefore, though in custody for an extended period of time, Ross was only interrogated for approximately seven hours. Additionally, throughout this period, he was not handcuffed, he was offered food, drink, and cigarettes, and Ross admittedly did not ask to use the restroom. In similar situations, courts have concluded that the custodial circumstances did not render the interrogation coercive. See, e.g., United States v. Shehadeh, 586 F. App'x 47, 48 (2d Cir.2014) (voluntary statement after a four hour interrogation); United States v. Smith, No. 14–CR–485 (JFB), 2015 WL 7177190, at *2–3 (E.D.N.Y. Nov. 16, 2015) (voluntary statement after a seven hour interrogation); United States v. Medina, 19 F.Supp.3d 518, 541 (S.D.N.Y.2014) (find statements to be voluntary despite being in custody for seven to eight hours before being given Miranda warnings).

Therefore, the Court concludes that the state court's decision to admit Ross's statements was not an unreasonable application of clearly established federal law, nor was it based on an unreasonable determination of the facts in light of the evidence in the state court proceeding.

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