Johnson v. Trigg

• Decision Date: 03 August 1994
• Docket Number: No. 93-1935,93-1935
• Citation: 28 F.3d 639
• Parties: Norman J. JOHNSON, Petitioner-Appellee, v. Clarence TRIGG, Respondent-Appellant.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 639

28 F.3d 639

Norman J. JOHNSON, Petitioner-Appellee, v. Clarence TRIGG, Respondent-Appellant.

No. 93-1935.

United States Court of Appeals, Seventh Circuit.

Argued March 31, 1994.

Decided June 30, 1994.

Rehearing Denied Aug. 3, 1994.

Dennis J. Majewski, Terre Haute, IN (argued), for petitioner-appellee.

Thomas D. Quigley, Office of the Atty. Gen., General Litigation, Indianapolis, IN (argued), for respondent-appellant.

Before POSNER, Chief Judge, and CUMMINGS and EASTERBROOK, Circuit Judges.

POSNER, Chief Judge.

The district judge in this habeas corpus proceeding held, on the basis of the record of the criminal proceeding in state court, that Norman Johnson's robbery conviction, upheld in Johnson v. State, 513 N.E.2d 650 (Ind.1987), had been based on a coerced confession. She ordered the State of Indiana either to release or retry him. 839 F.Supp. 571 (S.D.Ind.1993). The facts, at least as narrated by the district judge (a potentially important qualification), are indeed suggestive of a grave abuse of power by law enforcement authorities. A 14-year-old boy of below-average intelligence is arrested on suspicion of participation in an armed robbery. On the same day his mother is arrested, ostensibly for having failed to bring him in for questioning about a burglary in which he had been implicated five months earlier. She has just been released from the hospital, where she was diagnosed as having ovarian cancer and told that she has only six months, at most a year, to live. She and her son are both kept overnight in the jail. She cannot sleep. The next morning mother and son are tearfully reunited. The police promise the son that if he confesses they will release his mother. He confesses, she is released from jail, and the confession is the cornerstone of the state's case against him. He is convicted and, despite his youth, is sentenced to 38 years in prison.

Were these the only facts, the inference that the confession had been coerced would be a powerful one, although we confess to uncertainty about what it means to say that a confession is coerced or (equivalently) involuntary. The standard formulas (unchanged since Culombe v. Connecticut, 367 U.S. 568, 602, 81 S.Ct. 1860, 1879, 6 L.Ed.2d 1037 (1961) (plurality opinion))--the confession was involuntary, was not freely self-determined, was not the product of the defendant's free choice, was made only because his will had been overborne, was the product of coercion--are pretty empty. If all that was meant in deeming a confession coerced were that the efforts of the police had caused the defendant to confess, in the (inadequate) sense that he would not have done so had it not been for those efforts, the concept of "coerced confession" would at least be free from ambiguity. But the concept is more limited. Custodial interrogation is permitted even though inherently coercive and doubtless responsible for many a confession, and in addition the courts allow interrogators in these already coercive custodial settings considerable latitude in playing on the guilt and fears of the person interrogated in order to extract a confession that he will shortly regret having given. E.g., United States v. Miller, 984 F.2d 1028, 1031-32 (9th Cir.1993); Self v. Collins, 973 F.2d 1198, 1205-06 (5th Cir.1992). Justice Frankfurter put it delicately in Culombe: "The police may be midwife to a declaration naturally born of remorse, or relief, or desperation, or calculation." 367 U.S. at 576, 81 S.Ct. at 1864. Without midwives, there would be more stillbirths; and without police pressure, there would be more stillborn confessions.

Of course if the pressure exerted by the police is so great that it might induce a person to confess to a crime he had not committed--the pressure that might be exerted, for example, by a credible threat to shoot him on the spot if he didn't confess--the resulting confession will be highly unreliable and should, like other highly unreliable evidence, be excluded from the defendant's trial. Fed.R.Evid. 403. So one possible definition of a confession inadmissible because coerced would be that it had been extracted in circumstances that cast serious doubt on its reliability. That was the approach of the common law. 1 Wayne R. LaFave & Jerold H. Israel, Criminal Procedure Sec. 6.2, p. 440 (1984). But modern courts go further and suppress, in the name of due process, even reliable confessions when the police have resorted to tactics thought likely to prevent the suspect from making a rational choice whether to confess or remain silent. Rogers v. Richmond, 365 U.S. 534, 81 S.Ct. 735, 5 L.Ed.2d 760 (1961); United States v. Rutledge, 900 F.2d 1127, 1129-30 (7th Cir.1990); Smith v. Duckworth, 910 F.2d 1492, 1497 (7th Cir.1990); Weidner v. Thieret, 866 F.2d 958, 963-64 (7th Cir.1989). The police might have given the suspect a so-called "truth serum," as in Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963), overruled on other grounds in Keeney v. Tamayo-Reyes, --- U.S. ----, ----, 112 S.Ct. 1715, 1717, 118 L.Ed.2d 318 (1992), so that he could not exercise any choice at all. Or they might have fed him false information, telling him for example that he would be treated leniently if he confessed, while knowing that he would not be, thus confronting him with false alternatives between which to choose. Cf. Spano v. New York, 360 U.S. 315, 323, 79 S.Ct. 1202, 1207, 3 L.Ed.2d 1265 (1959). Whether either tactic would be likely often to induce a false confession may be doubted, but either is likely to induce a confession by someone who would not have confessed had he been allowed to choose with an unfogged mind between the alternatives actually confronting him.

Other tactics should be mentioned. Protracted interrogation might operate like a truth serum in breaking down the suspect's will to resist a course of action (confessing) to which he may already be prompted by shame or guilt. See Spano v. New York, supra, 360 U.S. at 322-23, 79 S.Ct. at 1207. And threats not frightening enough to induce an innocent person to confess might be sufficiently intimidating to induce a guilty person, who may have been led to the brink of confession by promptings of guilt or shame, to confess when he would not have done so if left alone. Such a case was Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). A government informant, a fellow prisoner of Fulminante, told him that he knew that Fulminante was "starting to get some tough treatment and whatnot" from other prisoners because of a rumor that he was suspected of having killed a child, and offered to protect him provided he came clean to the informant--which Fulminante promptly did. Id. at 283, 111 S.Ct. at 1250. And, as we are about to see, to be effective in inducing an "involuntary" confession a threat might not have to be directed against the suspect himself; it might be a threat to his child, spouse, or other loved one.

In cases of all these types the confession is suppressed not because it lacks evidentiary quality but because to make a suspect the unwitting agent of his conviction is thought to be inconsistent with the premises of an adversary system of criminal justice. Culombe v. Connecticut, supra, 367 U.S. at 582, 81 S.Ct. at 1867; cf. Miller v. Fenton, 474 U.S. 104, 110, 106 S.Ct. 445, 449, 88 L.Ed.2d 405 (1985).

All this is provided, however, that the threats, the promises, the misinformation, the confusion, etc. emanate from the police. A defendant who thinks he hears the voice of God directing him to confess may be irrational, but he is not coerced by anyone, let alone by any public officer; and the only coercion that is held to justify the suppression of a confession on federal constitutional grounds is coercion by such officers. Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986). The Constitution has not yet been interpreted to protect people against themselves.

We can imagine a case in which the police induce a youngster to confess to a crime by telling him that unless he confesses his mother will be imprisoned. The police threat, operating on an immature, emotional, and, as in this case, a none too quick mind, would be likely to prevent a rational choice whether to confess--a choice, that is, not dictated by overpowering emotion or paralyzing confusion, and based on adequate knowledge of the alternatives bearing on the choice. In re Gault, 387 U.S. 1, 45-50, 87 S.Ct. 1428, 1453-56, 18 L.Ed.2d 527 (1967); Gallegos v. Colorado, 370 U.S. 49, 82 S.Ct. 1209, 8 L.Ed.2d 325 (1962); Haley v. Ohio, 332 U.S. 596, 68 S.Ct. 302, 92 L.Ed. 224 (1948) (plurality opinion). Although there is no rule deeming teenagers, even slow ones, incapable of rational choice, Fare v. Michael C., 442 U.S. 707, 725-27, 99 S.Ct. 2560, 2572-73, 61 L.Ed.2d 197 (1979); Derrick v. Peterson, 924 F.2d 813 (9th Cir.1990); Vance v. Bordenkircher, 692 F.2d 978 (4th Cir.1982), police tactics that might be unexceptionable when employed on an adult may cross the line when employed against the less developed reason of a child. A threat to imprison the suspect's mother may be an example. The threat might frighten and distract a child to the point where he could not think straight about whether to confess, yet leave an adult quite cold--and yet a number of cases hold or suggest that hostage-taking is an impermissibly coercive interrogation tactic even where the person being interrogated is an adult. E.g., Lynumn v. Illinois, 372 U.S. 528, 83 S.Ct. 917, 9 L.Ed.2d 922 (1963); Rogers v. Richmond, supra, 365 U.S. at 536, 541-42, 81 S.Ct. at 739-40; United States v. Finch, 998 F.2d 349, 356 (6th Cir.1993); Ferguson v. Boyd, 566 F.2d 873 (4th Cir.1977) (per curiam); United States v. McShane, 462 F.2d 5, 7 (9th Cir.1972); Hall v. State, 255 Ind. 606, 266 N.E.2d 16 (1971); People v. Trout, 54 Cal.2d 576, 6 Cal.Rptr. 759, 354 P.2d 231 (1960), overruled in part on other grounds, People v. Cahill...