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Three from the Second, Part III

A few weeks back, I'd mentioned that there were three good decisions out of the 2nd District recently that I wanted to highlight.  The third one is State v. Kerby, which provides an excellent discussion of the law pertaining to voluntariness of a confession. 

Kerby was a 17-year-old who was convicted of aggravated murder in the robbery of a video store and the shotgun slaying of the clerk.  After assembling some other evidence which fingered Kerby as one of the participants, five officers in three squad cars went to his house at 2:30 in the morning.  They took him to the station where he was advised of his Miranda rights and, after about an hour of interrogation, confessed.

On appeal, Kerby first argued that he'd been unlawfully arrested, which would make the confession a fruit of the poisonous tree.  The court spent a fair amount of time concluding that he'd been arrested, although I'm not sure why -- even the officers conceded he was in custody.  They decided, though, that the police did have probable cause for the arrest.

They then moved to the issue of the voluntariness of the confession.  Although the giving (and waiving) of Miranda rights is a factor to be taken into consideration on that score, it doesn't insulate the confession from a determination that it's not voluntary.  And that's what the court held here, based upon the fact that the police told Kerby that he'd be facing the death penalty if convicted.  Since Kerby was under 18, that wasn't true.  The 2nd District has thrown out a number of confessions where the police have lied about the consequences a defendant might face -- such as this one, where the police told a suspect in a child rape case that he could get counseling and probation if he confessed, or where a suspect was promised probation in a murder case.

Oddly enough, there aren't a lot of cases outside the 2nd District on this, and those that are generally take a more permissive attitude toward police practices which mislead the suspect.  In this one, for example, the 6th District found no problem with the police officers' falsely telling the suspect that his DNA had been found at the scene of the crime.  If you've got a case on this issue, the 2nd District cases are where you want to go.

A couple of interesting things about the decision.  First, Kerby's brother was also a participant in the robbery, and had been convicted a year earlier.  The court also reversed his conviction on a confession issue, this time because the police had reinstituted the interrogation after he'd asserted his right to a lawyer.  But the day after the confession, the brother granted an interview to two newspaper reporters, in which he made a full confession, and the court said there was no bar to using the interview at the next trial.

Secondly, the original appellate counsel in this case had filed an Anders brief, stating that he couldn't find any non-frivolous assignments of error, and asking leave to withdraw.  The court reviewed the record on its own, as it's obligated to do, decided the issue of voluntariness of the confession needed to be explored, and appointed new appellate counsel to argue it.  Which, of course, he did, successfully.  The court deserves some credit for not just rubber-stamping the first attorney's claim that the appeal had no merit.

And if you're going to miss an issue that gets a murder conviction reversed, you probably shouldn't be doing appeals work.

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