Threat to take away the kids is a threat

Jennifer Roth won in State v. Brown, No. 96,862 (Kan. App. May 4, 2007) where the COA affirmed Judge Parish's order suppressing her client's statements in a Shawnee County child abuse prosecution:

When a parent is essentially compelled to choose between confessing guilt in abusing his or her own child or losing his or her parental rights, the choice is between two fundamental rights under the constitution. . . . Clearly, it was entirely appropriate for the district court to consider the pressure placed on Brown by the CINC proceedings in considering the totality of the circumstances surrounding his confession. We think this was especially important here, given the assessment of SRS that Brown may have been predisposed to falsify an admission of his guilt "just to get the kids
back."

Having been subjected to persistent pressure from SRS and the CINC proceedings, and faced with the inevitable loss of his parental rights, Brown succumbed and made a confession that would subject himself to a criminal prosecution. Notwithstanding his stated motivations and his being given Miranda rights at the time of the statement, we decline to second-guess the district court, which determined from the totality of the circumstances that Brown's statement was not freely and voluntarily made.

The State argues that the police "did nothing wrong" after Brown arrived at the station and made his statements and that our focus should be limited to these circumstances. We believe, however, that such a limited focus of the inquiry could provide unlawful safe harbor to coercive conduct prior to the precise moment of the statement. For example, would the Constitution permit admission of a statement resulting from a post-Miranda encounter when the encounter itself was provoked by a psychologist employed by a state agency for the purpose of provoking a confession? We believe that established precedent in Kansas and in the federal courts compels an examination of the totality of the circumstances, and such an inquiry must not be limited strictly to behavior immediately prior to a suspect's statement but rather should focus on any and all aspects of the circumstances that may have bearing on whether the suspect's will was overborne when the statement was made. As stated by the United States Supreme Court:

"We think its clear that a confession made under such circumstances must be deemed not voluntary, but coerced. That is the teaching of our cases. We have said that the question in each case is whether the defendant's will was overborne at the time he confessed. If so, the confession cannot be deemed 'the product of a rational intellect and a free will.'" Lynumn [v. Illinois, 372 U.S. 528, 534 (1963)].

The COA cited several out-of-state cases supporting the idea that threats to take away your children are coercive. Seems like a risky choice for the state to have appealed this order.

Here is my previous blog entry on this case.

[Update: the state filed a PR on June 4, 2007.]

[Further update: the KSC granted the state's PR on October 1, 2007. The case will likely be argued in spring 2008].

[Further update: the KSC affirmed the COA and Judge Parrish on May 16, 2008.]