Over strong dissent, court of appeals rejects challenge to voluntariness of confession

State v. John S. Finley, 2018AP258-CR, District 2, 6/12/19 (not recommended for publication); case activity (including briefs)

Here’s a succinct summary of this decision: “The Majority supports the government’s  ‘interview,’ which utilized lies, threats, and fabrication of evidence to wrestle a statement from a thirty-six-year-old man, who has the mind of a twelve year old and the social skills of a first grader.” (¶24 (Reilly, P.J., dissenting) (footnote omitted)).

Two officers went to the apartment where Finley lived with his mother to ask him about allegations he’d had sexual contact with his 9-year-old niece. The officers told him he wasn’t under arrest and told Finley he could tell them to leave at any time. While Finley said up front that he wasn’t feeling well, the officers didn’t think he was too ill to talk, and Finley didn’t accept the officers’ offer to get him medical help till after he admitted to the allegations, when he seemed to have a panic attack. The officers knew Finley “had the mental capacity of a twelve year old,” a fact substantiated by evidence presented at the suppression hearing that his IQ of 72 puts him in the borderline range of intellectual ability; nonetheless, the officers believed he understood their questions and was able to discuss the allegations. (¶¶2-10).

Voluntariness of a confession is based on the totality of the circumstances, so while a suspect’s personal characteristics are necessarily relevant to whether a confession was involuntary, they are not dispositive; there must also be evidence of improper police conduct. State v. Moore, 2015 WI 54, ¶¶55-56, 363 Wis. 2d 376, 864 N.W.2d 827. This was not a custodial interrogation, but Finley points to police tactics commonly used during custodial interrogation to argue his incriminating statement was involuntary—in particular, the officers “express[ing] certainty” that he had sexually touched his niece; their use of the tactic of “minimization,” “consist[ing] of trying to make sexual touching appear relatively normal, either by a suggestion that it was roughhousing or that it was accidental;” their telling “the lie that [the niece] said that Finley’s finger penetrated her vagina” which they then “built on”; and accentuating their trickery by “suggesting that any denial by Finley was tantamount to disrespect for his niece” whom he “loved.” (¶21).

The majority is unmoved:

¶22    These tactics are common in law enforcement interviews of criminal suspects. Were we to follow Finley’s apparent suggestion that law enforcement should be limited to simply accepting a criminal suspect’s first-response denial to a one-time asked, open-ended question of “Did you sexually assault your niece?” law enforcement may as well simply be precluded from questioning suspects altogether. There is nothing untoward with the officers’ tactics here, and despite Finley’s complaints, he cites no controlling law that the tactics were improper. See Moore, 363 Wis. 2d 376, ¶64 (noting that although “tactics such as minimizing, suggesting that [the victim’s] death may have been an accident, and telling [the defendant] that other witnesses were saying he shot [the victim]” may have influenced the defendant, “they are tactics that courts commonly accept”).

¶23     The circuit court concluded that Finley’s confession was voluntary. Having watched the video ourselves, we observe that Finley appeared to have full awareness and understanding of the questions being asked by the officers and, while his responses are at times difficult to hear, when we are able to hear the responses, they appear to us to be responsive to the question being asked. The officers were not overbearing upon Finley and they gave him every opportunity, and even invited him, to tell them if he wanted to end the interview and have them leave the apartment. He did not do so. The interview was conversational, it did not last for an excessive length of time, it took place in the security of his own apartment with his mother present in the apartment at all times, and the officers even made sure to get him water when he indicated he was thirsty. While Finley’s intellectual capacity certainly is a significant consideration, it is not dispositive. Considering the totality of the circumstances, we agree with the circuit court that his statement was voluntary “because the pressures placed on him by interrogation did not ‘excee[d his] ability to resist.’” See id., ¶65….

To which the dissent says, in essence—and compellingly—if the law supposes these tactics are okay to use against a person like Finley, even in a noncustodial setting, then the law is a ass — a idiot. And the dissent says so by setting out in more detail how the police interview tactics were by design overbearing.

First, even though the officers were going to arrest Finley based on the complainant’s statement, they intentionally chose to first do a noncustodial “interview” because reading Miranda warnings or having him ask for law would be “impediments” to getting a confession. (¶¶25, 30). And, one officer testified that he believed what C.P. said, so he agreed that he was not going to interview “Mr. Finley for the truth, [he was] going to get a confession.” (¶29).

Further, the officers were trained to use the Reid technique, which begins with an “interview portion”—a series of open-ended questions to get detailed information and potentially place the person at the scene—and is followed by an “interrogation,” which (quoting the officers themselves) “is more so calling people out on errors that you find in their story and really focusing in on those errors where they’re just glazing over a topic.” “Those are usually areas where the person’s lying, or trying to fabricate, or trying to prevent you from delving into too much because it’s a sensitive area; and those are the areas you want to target.” (¶34). During the interview phase, the police try “to break the person down a little bit,” and during the interrogation stage, you “cut off denials.” Although it appears contradictory, a “straight up” denial of an accusation is “a flag.” Officers also provide the suspect with the “moral justification” for the wrong police say happened—you “give” the suspect the “reasoning” for what they did or “minimize” the wrong to imply to the suspect that what they were doing was not a big deal. (¶35).

Despite knowing the limitations of Finley’s cognitive and social skills, the officers used these techniques on him. After Finley denied the allegations at least three times, the officers’ strategy was to “at least to get [Finley] to admit that his hand did or his finger did touch her vagina. And it’s by placing it as an accident, like it didn’t happen on purpose” is how he gets the person to admit he or she was there or that it happened. Officers used the term “accident” or “accidentally” at least thirty-five times in trying to get Finley to say he touched C.P.’s vagina. (¶36). Once Finley admitted he and his niece were “roughhousing,” the officers’ strategy was to “minimize” and make statements like “[t]here’s nothing wrong with roughhousing … with a girl, is there?” In response to Finley’s further denials of sexual contact, they worked on Finley by saying his niece respects and looks up to him, and that they knew Finley respected her, too, and “wouldn’t call her a liar or anything like that.” These tactics and “angles” got Finley “sort of progressively” to admit culpability. (¶37).

This, to the dissent, shows the police tactics overcame the will of person uncommonly susceptible to police pressure. (¶38). And condoning the behavior here is wrong:

¶39    The police (because we have said they can do so) utilized deception, manipulation, threats, and outright lies after Finley repeatedly denied sexually assaulting his niece. They did so purposely in a noncustodial interview to deny Finley his Miranda warnings and to prevent him from having a lawyer. The police tactics used against Finley were coercive and improper, and I would find his confession to be involuntary.

¶40     Being a judge is a noble position. Being a law enforcement officer is a noble profession. There is something ignoble, however, in charging a person with a crime … if that person lies, cheats, or fabricates statements or evidence to the government during an investigation, but if a law enforcement officer does the same, we consider the confession reliable. In life, we do not trust a liar or a deceiver, yet we are imposing that character trait upon our police. Having authorized dishonesty, we must be prepared to accept dishonest results. Finley’s interview was not an investigation; it was an inquisition.

Alas, don’t expect this sensical and principled approach to prevail any time soon.