Samuel v. Frank

525 F.3d 566, 2008 U.S. App. LEXIS 10180, 2008 WL 2003083

• Court: Court of Appeals for the Seventh Circuit
• Decided: May 12, 2008
• Docket: 07-1243
• Status: Published

Opinions

POSNER, Circuit Judge.

Stanley Samuel was convicted by a jury in a Wisconsin state court of second-degree sexual assault of a child, interference with child custody, and abduction, Wis. Stat. §§ 948.02(2), 948.31(2), 948.30, and was sentenced to 38 years in prison to be followed by 16 years on probation. After exhausting his state remedies, see State v. Samuel, 252 Wis.2d 26, 643 N.W.2d 423 (Wis.2002), he petitioned for federal habe-as corpus relief, lost, and appeals.

In 1996, the defendant, who was 47 years old, ran off with a 15-year-old girl named Tisha. Their spree began in Wisconsin, but they soon left the state and were not picked up until 13 months later, in Missouri, by which time Tisha was nine months pregnant. An issue critical to the charge of sexual assault was whether the pair had had sex in Wisconsin before they left the state (for otherwise the defendant would not have violated Wisconsin’s sexual-assault statute). While Tisha denied this at the trial, statements that she had made under police questioning when the couple were returned to Wisconsin after the spree, admitting that she and the defendant had had sex in Wisconsin, were introduced over objection at his trial.

The defendant claims that Tisha’s statements had been coerced and therefore that their use in evidence against him violated his federal constitutional rights. The district court disagreed, ruling that the state courts’ adjudication of his claims had not been “contrary to ... clearly established Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” § 2254(d)(2). And so it denied relief.

Tisha had given birth the day after her return to Wisconsin. Two days later social workers and officers of the Wisconsin juvenile court convened a conference to decide about the custody of the baby. Police officers attended the conference along with Tisha, her lawyer, her father, and her father’s girlfriend. Tisha was questioned extensively. At the end of the conference it was decided to place the infant in foster care temporarily and to hold another placement conference in two days. Tisha was permitted to spend time with and breast feed the baby in the foster home.

On the day between the two conferences, she was interviewed at the police station by two officers and it was then that she gave the statements introduced at trial. The day after the second conference she was given custody of the baby.

At a pretrial suppression hearing, Tisha testified that at the first conference she had been told that if she didn’t cooperate she wouldn’t get her baby back, and that she understood this to mean that she had to give statements to the police. Her father testified that at that conference the police officers had gotten angry with Tisha because she refused to tell them where she’d been with the defendant or give them the addresses of the people they had stayed with. Her lawyer testified that the impression created at the conference was that unless Tisha gave a full statement concerning the defendant’s conduct, she would not get the baby back.

The question whether the statements had been coerced resurfaced at the defendant’s trial. Tisha’s father testified that when the child welfare officers gave his daughter custody of the baby they said it was because she’d exhibited proper maternal behavior during her visits to the baby at the foster home. The police officers who had questioned her denied any involvement in the initial decision to place the baby in foster care.

We can assume without having to decide that had Tisha been a defendant her statements could not have been admitted against her. The officers may have created the impression that unless she cooperated in their investigation of the defendant they would make sure she did not get her baby back. A failure to cooperate with police could be a proper reason for doubting a runaway teenage single mother’s competence to be given custody of her child, and there was more: Tisha had not sought prenatal care or given other signs of taking the responsibilities of motherhood seriously. Had the child-welfare authorities believed that her failure to answer questions about her pregnancy during her months on the run counted against giving her custody of her baby, they could tell her that, even though by telling her they would be forcing her to choose between losing the baby and incriminating the father. She would need that information — information about the consequences of refusing to cooperate — in order to make an informed decision about whether to cooperate.

That would be a different conversation from police threatening her with denial of custody of the baby because she refused to incriminate the father. An incriminating statement induced by that kind of police threat would be inadmissible, at least if sought to be placed in evidence at the trial of the person who had made the statement and been incriminated by it. Lynumn v. Illinois, 372 U.S. 528, 534-35, 83 S.Ct. 917, 9 L.Ed.2d 922 (1963); United States v. Tingle, 658 F.2d 1332, 1336-37 (9th Cir.1981); cf. Vaughn v. Ruoff, 253 F.3d 1124, 1128-29 (8th Cir.2001). It would be like threatening a person with torture if he refused to ‘fess up. The problem (or one problem) with allowing such threats is that, to be credible, they would sometimes have to be carried out, and torture and taking away a person’s child are not considered proper methods of obtaining evidence against criminals.

Some courts hold that placing in evidence a coerced statement of a witness in a criminal case who is not a defendant or a potential defendant nevertheless violates a constitutional right of the defendant, though obviously not his right not to be forced to incriminate himself. E.g., United States v. Gonzales, 164 F.3d 1285, 1289 n. 1 (10th Cir.1999); LaFrance v. Bohlinger, 499 F.2d 29, 35-36 (1st Cir.1974). Other courts, including Wisconsin, exclude such a statement only if it is unreliable, which requires that a higher level of coercion be shown. E.g., State v. Samuel, supra, 643 N.W.2d at 431-32; United States v. Merkt, 764 F.2d 266, 273-75 (5th Cir.1985). Still other courts, including ours, Buckley v. Fitzsimmons, 20 F.3d 789, 794-95 (7th Cir.1994), do not think that there is an exclusionary rule, as such, applicable to third-party statements, though they would reverse a conviction if it rested entirely on a coerced statement that was completely unreliable, just as they would reverse any conviction that rested entirely on completely unreliable evidence. State v. Vargas, 420 A.2d 809, 814 (R.I.1980); People v. Badgett, 10 Cal.4th 330, 41 Cal.Rptr.2d 635, 895 P.2d 877, 883-88 (Cal.1995). For in such a case no reasonable judge or jury could find that the defendant’s guilt had been proved beyond a reasonable doubt, and hence the conviction would have deprived him of liberty without due process of law. Jackson v. Virginia, 443 U.S. 307, 317-18, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

The Supreme Court has not decided whether the admission of a coerced third-party statement is unconstitutional, and this may seem to doom the petitioner’s case. But section 2254(d)(1) does not say that there can be no relief unless the state court’s decision was contrary to a clearly established holding of the Supreme Court. The decision need only be contrary to federal law as clearly established by the Court. “Law” is not limited to the narrowest rule stated in a case that is consistent with the facts of the case, which is one sense of “holding”; it embraces legal principles, Bell v. Cone, 535 U.S. 685, 694, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002); Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003); Anderson v. Cowan, 227 F.3d 893, 896 (7th Cir.2000), though they must be legal principles derived from the holdings in Supreme Court opinions. Carey v. Musladin, 549 U.S. 70, 127 S.Ct. 649, 653, 166 L.Ed.2d 482 (2006).

Sadly, legal principles often come in nested form, like a series of Russian dolls. It is a legal principle that a defendant is not to be deprived of his liberty without due process of law, but it is also a legal principle that due process of law is violated by admitting the defendant’s coerced confession into evidence at a criminal trial. At the level of generality of our first example, Congress’s effort in section 2254(d)(1) to prevent federal courts from using their habeas corpus jurisdiction, in cases brought by state prisoners, to venture beyond the limits of clearly established federal law as determined by the Supreme Court would be thwarted. But we have also been told that a state court opens itself to challenge in a habeas corpus proceeding if it “unreasonably refuses to extend [a clearly established] principle to a new context where it should apply.” Williams v. Taylor, 529 U.S. 362, 407, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Malinowski v. Smith, 509 F.3d 328, 335 (7th Cir.2007).

This formula would be clearer if the Court had said “apply” rather than “extend,” for then it would be clear that the Court was merely making our earlier point that “clearly established Federal law, as determined by the Supreme Court,” is not limited to the holding of a case. A principle sweeps more broadly than a holding, but to extend a principle sounds like creating new law. But this is to be too fussy about words; the Court itself has used “application” and “extension” interchangeably in the present context. Williams v. Taylor, supra, 529 U.S. at 407-08, 120 S.Ct. 1495.

There is, however, no rule or principle that evidence obtained by improper means may not be used in a legal proceeding. It has often seemed better to let the evidence in but punish the officer who used those means to obtain it, an increasingly feasible option of the having-your-cake-and-eating-it type now that there are effective tort remedies, especially federal tort remedies, against official misconduct. The emergence of those remedies may be one of the reasons that exclusionary rules have fallen out of favor — -as they have; we find today’s Supreme Court saying that “suppression of evidence ... has always been our last resort, not our first impulse,” Hudson v. Michigan, 547 U.S. 586, 591, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006), and refusing to extend the existing exclusionary rules. See, e.g., Pennsylvania Board of Probation & Parole v. Scott, 524 U.S. 357, 362-65, 118 S.Ct. 2014, 141 L.Ed.2d 344 (1998); Colorado v. Connelly, 479 U.S. 157, 166— 67, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986).

Tort remedies are fully effective when the victim of coercion is a witness who is not himself (in this case herself) a defendant, or a criminal of any type. A criminal is not a very appealing tort plaintiff, but Tisha is not a criminal. She is not accused of being the defendant’s accomplice rather than his victim. She was only 15 when she ran away with him, and he was 32 years her senior.

Historically, moreover, the concern with coerced statements is a concern with confessions or other self-incriminating statements, e.g., Doe v. United States, 487 U.S. 201, 211-14, 108 S.Ct. 2341, 101 L.Ed.2d 184 (1988), rather than with the coercion itself. That is why the rule excluding coerced confessions has been ascribed to the self-incrimination clause of the Fifth Amendment rather than to some broader constitutional right against coercion, on which the defendant in this case, not being the author of the allegedly coerced statements, must rely.

Still another reason to distinguish a witness’s coerced testimony from a defendant’s is that confessions tend to be devastating evidence in a jury trial because jurors find it difficult to imagine someone confessing to a crime if he is not guilty, unless the pressures exerted on him to confess were overwhelming. Tisha was not incriminating herself when she incriminated the defendant, so there was no reason for the jury to give her statements more weight than they merited.

The fact that the case for exclusion is so much weaker in the present case than in the case of a defendant’s coerced confession is a further clue that exclusion would require the creation of new law rather than the application of an existing principle. Against all this the defendant contends that the root objection to coerced evidence is that it is unreliable, and it is unreliable whether it is a witness’s evidence or a defendant’s. Not all evidence routinely allowed in trials is particularly reliable, however, even eyewitness evidence (see, e.g., Christian A. Meissner & John C. Brigham, “Thirty Years of Investigating the Own-Race Bias in Memory for Faces: A Meta-Analytic Review,” 7 Psychology, Pub. Pol’y & L. 3 (2001)), and references in United States v. Williams, 522 F.3d 809, 811 (7th Cir.2008), though the naive consider it the gold standard of evidence. Moreover, the reliability of a single item of evidence often depends on other evidence, rather than being assessable in isolation. This is true of coerced statements. Not all are unreliable; their reliability may be established by corroboration, as when a coerced statement reveals a fact, say the location of the murder victim’s body, Colorado v. Connelly, supra, 479 U.S. at 160-63, 107 S.Ct. 515; Brewer v. Williams, 430 U.S. 387, 97 S.Ct. 1232, 51 L.Ed.2d 424 (1977); see also New York v. Quarles, 467 U.S. 649, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984); Orozco v. Texas, 394 U.S. 324, 324-27, 89 S.Ct. 1095, 22 L.Ed.2d 311 (1969), that only the murderer could have known. It is not a surprise when, forced to speak, a person speaks the truth. Tisha’s statements that implicated the defendant were corroborated by other witnesses (who testified to admissions she had made to them concerning her sexual activities with him), were plausible, and, given her continued loyalty to the defendant, perhaps unlikely to have been made, even under the pressure exerted on her, had they been false.

Whether the Wisconsin Supreme Court was right or wrong to refuse to extend the bar against the use of a defendant’s coerced statement to that of a nondefen-dant witness, the court was not unreasonable in refusing to do so; and reasonableness is the test.

That court did not, however, hold that such a statement is always admissible — a ruling that would be an unreasonable application of settled law if, for example, because the conviction had been based wholly on unreliable third-party evidence, no reasonable jury or judge could have voted for such a conviction. Jackson v. Virginia, supra. The court held only that “the standards are different and that when a defendant seeks to suppress an allegedly involuntary witness statement, the coercive police misconduct at issue must be egregious such that it produces statements that are unreliable as a matter of law.” 643 N.W.2d at 426. So if the court was unreasonable in determining that the facts did not establish such “egregious” police misconduct, the petitioner is entitled to relief under 28 U.S.C. § 2254(d)(2) (state court’s decision “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding”), as in Miller-El v. Dretke, 545 U.S. 231, 264-66, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005), or Taylor v. Maddox, 366 F.3d 992, 999-1001 (9th Cir.2004).

The authorities responsible for the welfare of Tisha’s baby had a legitimate concern with her failure to cooperate with the criminal investigation of the defendant. They were entitled to express that concern to her, so that she could make an informed decision whether to cooperate, knowing that her failure to do so would be weighed in the balance that would determine whether she would obtain custody of the child. Inevitably that concern and the expression of it nudged her toward cooperation and hence to making the statements that incriminated the defendant. The threat of losing her baby was in the background, but it emanated primarily from the circumstances of Tisha’s weeks on the run while pregnant, rather than from police misconduct. Or so the state courts could conclude without being thought unreasonable. Cf. Johnson v. Trigg, 28 F.3d 639 (7th Cir.1994).

Affirmed.