Trial counsel should have moved to suppress statements

Rachel Pickering won in State v. Bowlin, No. 99,213 (Kan. App. April 30, 2010) obtaining a new trial in a Wyandotte County involuntary manslaughter prosecution. The prosecution stems from the death of an 8-year old girl in a house fire that investigators thought Mr. Bowlin may have started by fireworks. After a 3 hour, 11 minute interrogation, police obtained a statement from Mr. Bowlin that he may have shot a bottle rocket into the house.

The state charged Mr. Bowlin with reckless second-degree murder. During pretrial, defense counsel not only failed to challenge the voluntariness of the statements, he stipulated to their admission. After a bench trial, the district court convicted Mr. Bowlin of involuntary manslaughter. Before sentencing, the district court substituted counsel because he believed trial counsel (now a district judge) had been ineffective. New counsel filed a motion for new trial alleging ineffective assistance of counsel by failing to call certain witnesses and by allowing waiver of a jury trial. The district court rejected the IAC claim and imposed sentence.

On appeal, after reviewing the record and especially the interrogations, Rachel moved to remand for additional IAC claims related to the failure to challenge the admission of the statements. On remand, the district court held that Mr. Bowlin had not met the burden of showing deficient performance.

On appeal, the COA agreed that Mr. Bowlin made unequivocal and repeated requests for counsel during interrogation, but the officers did not cease questioning:

In this case, there can be no doubt that the officers understood that Bowlin had made a request for an attorney for assistance with the custodial interrogation. After Bowlin's equivocal statement, "I think I'm going to have to get a lawyer," the interviewing officer sought clarification of Bowlin's statement, received an affirmative response from Bowlin that he did need an attorney, and even went so far as to agree with Bowlin that he needed an attorney. Several minutes later, another interviewing officer further clarified that Bowlin wanted a lawyer "right now" during the custodial interrogation. Nevertheless, the officers did not cease Bowlin's interrogation and honor his request for counsel. Rather, the officers continued questioning and badgering Bowlin until 23 minutes after his first request for counsel, and after his legs had been shackled, he agreed that he still wanted to talk with the officers.

The decision includes lengthy quotes that detail the exact language and persistence of the officers. The COA held that any statements were the product of improper and coercive tactics:

The unmistakable message by the interrogators was that if Bowlin refused to confess to their theory of the case, the result would be a harsher charge and conviction for Jewell's death in the house fire. Throughout the interrogation, the officers were not interested in what Bowlin had to say about the events surrounding the house fire. They were intent on getting Bowlin to tell them what they wanted to hear and to confess to his involvement in the house fire. This became even more evident when the interrogators denied Bowlin his Fifth Amendment right to counsel. As their tactics became harsher and the interrogation extended on for 3 hours, the interrogators were able to wear Bowlin down and get him to admit that he had caused the fire. Such tactics were coercive and constituted police overreaching.

A review of the lengthy interrogation that took place in this case leads this court to determine that Bowlin's will was overborne and the overreaching police conduct was causally related to the confession.

Finally, the COA reviewed the evidence and the district court's decision in detail and rejected defense counsel's suggestion that admission of the damning statements obtained during the interrogation was "trial strategy":

Under the circumstances present in this case, we cannot dismiss as trial strategy defense counsel's decision to not even attempt to suppress the only statements from Bowlin himself admitting that he thought his rocket caused the house fire. Upon considering the trial court's heavy reliance on Bowlin's interrogation confession, we conclude that there is a reasonable probability that, but for defense counsel's deficient conduct, the result of the proceeding would have been different.

Great work by Rachel and remand counsel.

[Update: the state filed a PR on June 1, 2010. Rachel filed a cross-PR on June 11, 2010.]

[Further update: the KSC denied the petitions for review and the mandate issued on September 10, 2010.]