By Sean Douglass
Wrisley v. Crowe presents the situation of coercive questioning by police officers of minors, which has been contested on both Fifth and Fourteenth Amendment grounds. The three issues on appeal concern (1) whether police are subject to liability under the Fifth Amendment for allegedly coercive questioning used only in pre-trial proceedings that do not impose criminal penalties; (2) whether police are subject to liability for questioning excluded under the Fifth Amendment and not rising to a level that “shocks the conscience” under the Fourteenth Amendment; and (3) whether police can “shock the conscience” for purposes of liability under the Fourteenth Amendment by non-tortious conduct that causes or threatens no physical harm.
In this case, 12-year-old Stephanie Crowe was stabbed to death in her bedroom and found dead the next morning. Police immediately questioned the Crowe family, including the decedent’s 14-year-old brother Michael and his teenage friend Aaron. Officers advised Michael of his Miranda rights prior to interrogating him on four occasions, one of which lasted six hours, but did not advise Aaron of his Miranda rights before questioning him for over nine hours.
Police subjected both boys to a variety of psychological tactics designed to coerce a confession. During Michael’s questioning, officers repeatedly accused Michael of murdering his sister over his repeated and strenuous denials. First, detectives told him they knew who killed Stephanie and asked what he did with the knife. Michael denied it. Detectives then introduced the idea that Michael killed Stephanie but did not remember it. Michael denied it, repeating he didn’t remember doing anything. Michael asked in disbelief if police were sure Michael had done it, to which they responded, “absolutely,” and repeatedly assured him they had evidence to prove he killed his sister. Michael sobbed, “I can’t believe this. Oh, God…How could I have done this? I don’t even remember if I did it.” Next, police told him they would play a game with him in which they would talk about the evidence and Michael would explain it, starting with the blood they said they found in Michael’s room. When Michael said he didn’t know how to explain it because he didn’t know how that blood got there, he was told that under the rules of the game Michael wasn’t allowed to say, “I don’t know.” Later, detectives suggested that there were “two Michaels,” a “good Michael” and a “bad Michael.” When asked about his “greatest fear,” Michael responded to this suggestion by saying, “I’m afraid that there is someone else inside of me…if what you’re saying is true, then it’s like there is another person in me then. I don’t remember anything.” Finally, police told Michael if he confessed he’d get help but if he didn’t he’d go to jail. Michael said if he confessed, “I would be lying.” Police persisted, asking him to tell them a story. Michael, repeatedly warning them that his story “is going to be a complete lie” and even indicating every part “where I’ll start lying,” began a vague story about getting a knife and stabbing his sister, and stated, “The only reason I’m trying to lie here is because you presented me with two paths. I’d rather die than go to jail.” The detectives latched onto this story as a confession. Police used almost identical tactics against Aaron, who vehemently protested the accusations and maintained his innocence throughout his nine-and-a-half hour interrogation.
The boys’ statements were used against them in three pre-trial proceedings, including a hearing to determine whether the boys would be incarcerated in juvenile detention prior to trial, a grand jury proceeding in which the prosecution secured their indictments, and a hearing to determine whether juvenile offenders can be certified to an adult court. After a year, the prosecution dismissed indictments against the boys, and the boys’ families filed §1983 suits against the police that included Fifth and Fourteenth Amendment claims. The district court granted summary judgments to the police on these claims, finding that the Supreme Court’s ruling in Chavez v. Martinez, 538 U.S. 760 (2003),indicated that coercion does not create a cause of action under §1983 absent use of the compelled statement in a criminal case, and that the interrogation techniques used by police did not rise to the level of “shocking the conscience.”
The Ninth Circuit, however, reversed the district court on the boys’ Fifth and Fourteenth Amendment claims. It concluded that the Supreme Court’s ruling in Chavez doesn’t preclude §1983 claims for Fifth Amendment violations when the coerced confession is used in certain critical pre-trial proceedings, such as the ones undertaken against Michael and Aaron in the present case. Also, it concluded that police certainly violated the boys’ substantive due process rights under the Fourteenth Amendment through conduct so coercive as to “shock the conscience.” Indeed, the court stated that “‘[p]sychological torture’ is not an inapt description,” and indicated that police conduct need not include physical violence to violate substantive due process and that the constitutionality of officer’s actions is judged by a higher standard when they interrogate a minor.
The Ninth Circuit’s reasoning appears sound. With regard to the Fifth Amendment claims, the court acknowledged that Chavez overturned its traditional rule that a §1983 cause of action for a violation of the Fifth Amendment could arise as soon as police employed coercive means to compel a statement. The court reasonably stated that Chavez’s requirement that the compelled statement must be used in a criminal case to substantiate a §1983 cause of action is not offended here because it is reasonable to conclude that such a “case” can begin before trial, particularly given the pre-trial proceedings in this case. If the purpose of the Chavez rule was to limit the use of §1983 to plaintiffs who suffer a legitimate infringement on their Fifth Amendment rights, surely the use of such coerced testimony in proceedings in which incarceration, indictments, and infliction of adult penalties on juveniles all hang in the balance qualifies as such a harm. With regard to the Fourteenth Amendment claims, the court pragmatically concluded that the interrogations of Michael and Aaron amounted to police brutality of children, and effectively that physical violence need not be a part of the interrogation for a violation of these children’s substantive due process rights to occur. These interrogations leave little doubt that these boys’ wills were overborne significantly by psychological coercion, and though the tactics used here may not include physical violence, the lack of “voluntariness” implicit in the boys’ statements to police should guide the Supreme Court’s reasoning if it chooses to grant the cert petition in this case.