Friday, February 15, 2013

Breaking the rules of engagement

Lydia Krebs won in State v. Swindler, No. 104,580 (Kan. Feb. 15, 2013), obtaining a new trial in a Sumner County rape prosecution.  The dispositive issue in the case revolved around law enforcement officers' persistent questioning of Mr. Swindler even after he asked to be released:
In this case, Swindler does not claim officers manufactured information or evidence in order to get him to confess, as was the case in Stone and Swanigan. But he argues that the investigators' bait and switch about his ability to terminate the interview and leave had the same coercive effect.
The video in the appellate record makes it very clear that Swindler wanted to exercise the power the investigators had initially guaranteed that he possessed. From the time that he said "I'm done. I want to go home. I'm done," it is obvious that Swindler wanted to terminate the interview and leave the KBI office. His girlfriend and two small children were waiting for him in the hallway, and he expressed his desire to go to work to provide for his children. He repeated that he was "done" and wanted to go home.
Swindler's first clearly inculpatory statement was not made until he had said that he was confessing "just to get this over with so I can go home." Instead of being allowed to leave, the investigators persisted in questioning him. In particular, we note that Attebury admitted he left the room to consult with Hawkins to avoid an expected invocation of Swindler's right to remain silent. Also, Hawkins met Swindler's repeated efforts to do what he had been told he was free to do with "Well, tell me what happened." The message of these investigators was unmistakable: If Swindler wanted to stop talking and leave, he needed to confess to raping L.C.
In short, the investigators set the rules of engagement and then did not hesitate to break them as soon as they thought Swindler might slip away without telling them what they wanted to hear. Under the totality of these circumstances, the State cannot carry its burden to show that Swindler's resulting oral confession, written confessions, and drawing were given voluntarily under the Fifth Amendment.
The KSC went on to hold that because there was no physical evidence implicating Mr. Swindler, the involuntary statements were "indescribably prejudicial."  As a result, the conviction was reversed and the matter remanded for new trial.

I think lay persons often can't imagine how someone can "confess" to a crime they didn't commit.  This case sets out a nice illustration of how police tactics can often do exactly that.

[Update: the state filed a petition for writ of certiorari on July 9, 2013.]

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