Samuel, Stanley A. v. Frank, Matthew J. ( 2008 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 07-1243
STANLEY A. SAMUEL,
Petitioner-Appellant,
v.
MATTHEW J. FRANK,
Respondent-Appellee.
____________
Appeal from the United States District Court
for the Eastern District of Wisconsin.
03-C-1279—Lynn Adelman, Judge.
____________
ARGUED SEPTEMBER 5, 2007—DECIDED MAY 12, 2008
____________
Before POSNER, RIPPLE, and ROVNER, Circuit Judges.
POSNER, Circuit Judge. Stanley Samuel was convicted by
a jury in a Wisconsin state court of second-degree sexual
assault of a child, interference with child custody, and
abduction, Wis. Stat. §§ 948.02(2), 948.31(2), 948.30, and
was sentenced to 38 years in prison to be followed by
16 years on probation. After exhausting his state rem-
edies, see State v. Samuel, 643 N.W.2d 423 (Wis. 2002), he
petitioned for federal habeas corpus relief, lost, and
appeals.
In 1996, the defendant, who was 47 years old, ran off
with a 15-year-old girl named Tisha. Their spree began in
2 No. 07-1243
Wisconsin, but they soon left the state and were not
picked up until 13 months later, in Missouri, by which
time Tisha was nine months pregnant. An issue critical to
the charge of sexual assault was whether the pair had
had sex in Wisconsin before they left the state (for other-
wise the defendant would not have violated Wisconsin’s
sexual-assault statute). While Tisha denied this at the
trial, statements that she had made under police question-
ing when the couple were returned to Wisconsin after
the spree, admitting that she and the defendant had had
sex in Wisconsin, were introduced over objection at his
trial.
The defendant claims that Tisha’s statements had been
coerced and therefore that their use in evidence against
him violated his federal constitutional rights. The district
court disagreed, ruling that the state courts’ adjudication
of his claims had not been “contrary to . . . clearly estab-
lished Federal law, as determined by the Supreme Court
of the United States,” 28 U.S.C. § 2254(d)(1), or “based on
an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.”
§ 2254(d)(2). And so it denied relief.
Tisha had given birth the day after her return to Wis-
consin. Two days later social workers and officers of the
Wisconsin juvenile court convened a conference to de-
cide about the custody of the baby. Police officers attended
the conference along with Tisha, her lawyer, her father,
and her father’s girlfriend. Tisha was questioned exten-
sively. At the end of the conference it was decided to
place the infant in foster care temporarily and to hold
another placement conference in two days. Tisha was
permitted to spend time with and breast feed the baby in
the foster home.
No. 07-1243 3
On the day between the two conferences, she was
interviewed at the police station by two officers and it
was then that she gave the statements introduced at trial.
The day after the second conference she was given
custody of the baby.
At a pretrial suppression hearing, Tisha testified that at
the first conference she had been told that if she didn’t
cooperate she wouldn’t get her baby back, and that
she understood this to mean that she had to give state-
ments to the police. Her father testified that at that con-
ference the police officers had gotten angry with Tisha
because she refused to tell them where she’d been with
the defendant or give them the addresses of the people
they had stayed with. Her lawyer testified that the im-
pression created at the conference was that unless Tisha
gave a full statement concerning the defendant’s con-
duct, she would not get the baby back.
The question whether the statements had been coerced
resurfaced at the defendant’s trial. Tisha’s father testified
that when the child welfare officers gave his daughter
custody of the baby they said it was because she’d exhib-
ited proper maternal behavior during her visits to the
baby at the foster home. The police officers who had
questioned her denied any involvement in the initial
decision to place the baby in foster care.
We can assume without having to decide that had Tisha
been a defendant her statements could not have been
admitted against her. The officers may have created the
impression that unless she cooperated in their investiga-
tion of the defendant they would make sure she did not
get her baby back. A failure to cooperate with police could
be a proper reason for doubting a runaway teenage
single mother’s competence to be given custody of her
4 No. 07-1243
child, and there was more: Tisha had not sought prenatal
care or given other signs of taking the responsibilities
of motherhood seriously. Had the child-welfare author-
ities believed that her failure to answer questions about
her pregnancy during her months on the run counted
against giving her custody of her baby, they could tell
her that, even though by telling her they would be
forcing her to choose between losing the baby and incrimi-
nating the father. She would need that information—
information about the consequences of refusing to
cooperate—in order to make an informed decision
about whether to cooperate.
That would be a different conversation from police
threatening her with denial of custody of the baby be-
cause she refused to incriminate the father. An incrim-
inating statement induced by that kind of police threat
would be inadmissible, at least if sought to be placed in
evidence at the trial of the person who had made the
statement and been incriminated by it. Lynumn v. Illinois,
372 U.S. 528, 534-35 (1963); United States v. Tingle, 658
F.2d 1332, 1336-37 (9th Cir. 1981); cf. Vaughn v. Ruoff,
253 F.3d 1124, 1128-29 (7th Cir. 2001). It would be like
threatening a person with torture if he refused to ‘fess up.
The problem (or one problem) with allowing such
threats is that, to be credible, they would sometimes have
to be carried out, and torture and taking away a person’s
child are not considered proper methods of obtaining
evidence against criminals.
Some courts hold that placing in evidence a coerced
statement of a witness in a criminal case who is not a
defendant or a potential defendant nevertheless violates a
constitutional right of the defendant, though obviously
not his right not to be forced to incriminate himself. E.g.,
No. 07-1243 5
United States v. Gonzales, 164 F.3d 1285, 1289 n. 1 (10th Cir.
1999); LaFrance v. Bohlinger, 499 F.2d 29, 35-36 (1st Cir.
1974). Other courts, including Wisconsin, exclude such a
statement only if it is unreliable, which requires that a
higher level of coercion be shown. E.g., State v. Samuel,
supra, 643 N.W.2d at 431-32; United States v. Merkt, 764
F.2d 266, 273-75 (5th Cir. 1985). Still other courts,
including ours, Buckley v. Fitzsimmons, 20 F.3d 789, 794-95
(7th Cir. 1994), do not think that there is an exclusionary
rule, as such, applicable to third-party statements, though
they would reverse a conviction if it rested entirely on a
coerced statement that was completely unreliable, just
as they would reverse any conviction that rested entirely
on completely unreliable evidence. State v. Vargas, 420
A.2d 809, 814 (R.I. 1980); People v. Badgett, 895 P.2d 877, 883-
88 (Cal. 1995). For in such a case no reasonable judge or
jury could find that the defendant’s guilt had been proved
beyond a reasonable doubt, and hence the conviction
would have deprived him of liberty without due process of
law. Jackson v. Virginia, 443 U.S. 307, 317-18 (1979).
The Supreme Court has not decided whether the ad-
mission of a coerced third-party statement is unconstitu-
tional, and this may seem to doom the petitioner’s case.
But section 2254(d)(1) does not say that there can be no
relief unless the state court’s decision was contrary to a
clearly established holding of the Supreme Court. The
decision need only be contrary to federal law as clearly
established by the Court. “Law” is not limited to the
narrowest rule stated in a case that is consistent with the
facts of the case, which is one sense of “holding”; it em-
braces legal principles, Bell v. Cone, 535 U.S. 685, 694 (2002);
Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003); Anderson v.
Cowan, 227 F.3d 893, 896 (7th Cir. 2000), though they
6 No. 07-1243
must be legal principles derived from the holdings in
Supreme Court opinions. Carey v. Musladin, 127 S. Ct. 649,
653 (2006).
Sadly, legal principles often come in nested form, like
a series of Russian dolls. It is a legal principle that a de-
fendant is not to be deprived of his liberty without due
process of law, but it is also a legal principle that due
process of law is violated by admitting the defendant’s
coerced confession into evidence at a criminal trial. At
the level of generality of our first example, Congress’s
effort in section 2254(d)(1) to prevent federal courts
from using their habeas corpus jurisdiction, in cases
brought by state prisoners, to venture beyond the limits
of clearly established federal law as determined by
the Supreme Court would be thwarted. But we have also
been told that a state court opens itself to challenge in a
habeas corpus proceeding if it “unreasonably refuses to
extend [a clearly established] principle to a new con-
text where it should apply.” Williams v. Taylor, 529 U.S.
367, 407 (2000); Malinowski v. Smith, 509 F.3d 328, 335 (7th
Cir. 2007).
This formula would be clearer if the Court had said
“apply” rather than “extend,” for then it would be
clear that the Court was merely making our earlier
point that “clearly established Federal law, as deter-
mined by the Supreme Court,” is not limited to the hold-
ing of a case. A principle sweeps more broadly than a
holding, but to extend a principle sounds like creating
new law. But this is to be too fussy about words; the
Court itself has used “application” and “extension”
interchangeably in the present context. Williams v. Taylor,
supra, 529 U.S. at 407-08.
No. 07-1243 7
There is, however, no rule or principle that evidence
obtained by improper means may not be used in a legal
proceeding. It has often seemed better to let the evidence in
but punish the officer who used those means to obtain it,
an increasingly feasible option of the having-your-cake-
and-eating-it type now that there are effective tort reme-
dies, especially federal tort remedies, against official
misconduct. The emergence of those remedies may be one
of the reasons that exclusionary rules have fallen out of
favor—as they have; we find today’s Supreme Court
saying that “suppression of evidence . . . has always been
our last resort, not our first impulse,” Hudson v. Michigan,
547 U.S. 586, 591 (2006), and refusing to extend the
existing exclusionary rules. See, e.g., Pennsylvania Board
of Probation & Parole v. Scott, 524 U.S. 357, 362-65 (1998);
Colorado v. Connelly, 479 U.S. 157, 166-67 (1986).
Tort remedies are fully effective when the victim of
coercion is a witness who is not himself (in this case
herself) a defendant, or a criminal of any type. A criminal
is not a very appealing tort plaintiff, but Tisha is not a
criminal. She is not accused of being the defendant’s
accomplice rather than his victim. She was only 15
when she ran away with him, and he was 32 years her
senior.
Historically, moreover, the concern with coerced state-
ments is a concern with confessions or other self-incrimi-
nating statements, e.g., Doe v. United States, 487 U.S. 201,
211-14 (1988), rather than with the coercion itself. That
is why the rule excluding coerced confessions has been
ascribed to the self-incrimination clause of the Fifth
Amendment rather than to some broader constitutional
right against coercion, on which the defendant in this
case, not being the author of the allegedly coerced state-
ments, must rely.
8 No. 07-1243
Still another reason to distinguish a witness’s coerced
testimony from a defendant’s is that confessions tend to
be devastating evidence in a jury trial because jurors find
it difficult to imagine someone confessing to a crime if
he is not guilty, unless the pressures exerted on him to
confess were overwhelming. Tisha was not incriminating
herself when she incriminated the defendant, so there
was no reason for the jury to give her statements more
weight than they merited.
The fact that the case for exclusion is so much weaker
in the present case than in the case of a defendant’s co-
erced confession is a further clue that exclusion would
require the creation of new law rather than the applica-
tion of an existing principle. Against all this the defendant
contends that the root objection to coerced evidence is
that it is unreliable, and it is unreliable whether it is a
witness’s evidence or a defendant’s. Not all evidence
routinely allowed in trials is particularly reliable, how-
ever, even eyewitness evidence (see, e.g., Christian A.
Meissner & John C. Brigham, “Thirty Years of Investigating
the Own-Race Bias in Memory for Faces: A Meta-Analytic
Review,” 7 Psychology, Pub. Pol’y & L. 3 (2001), and refer-
ences in United States v. Williams, No. 06-3260, 2008 WL
17011843, at *2 (7th Cir. Apr. 14, 2008), though the naïve
consider it the gold standard of evidence. Moreover, the
reliability of a single item of evidence often depends
on other evidence, rather than being assessable in isola-
tion. This is true of coerced statements. Not all are unreli-
able; their reliability may be established by corrobora-
tion, as when a coerced statement reveals a fact, say the
location of the murder victim’s body, Colorado v. Connelly,
supra, 479 U.S. at 160-63; Brewer v. Williams, 430 U.S. 387(1977); see also New York v. Quarles, 467 U.S. 649 (1984);
No. 07-1243 9
Orozco v. Texas, 394 U.S. 324, 324-27 (1969), that only
the murderer could have known. It is not a surprise
when, forced to speak, a person speaks the truth. Tisha’s
statements that implicated the defendant were corrobo-
rated by other witnesses (who testified to admissions
she had made to them concerning her sexual activities
with him), were plausible, and, given her continued
loyalty to the defendant, perhaps unlikely to have been
made, even under the pressure exerted on her, had they
been false.
Whether the Wisconsin Supreme Court was right or
wrong to refuse to extend the bar against the use of a
defendant’s coerced statement to that of a nondefendant
witness, the court was not unreasonable in refusing to do
so; and reasonableness is the test.
That court did not, however, hold that such a state-
ment is always admissible—a ruling that would be an
unreasonable application of settled law if, for example,
because the conviction had been based wholly on unreli-
able third-party evidence, no reasonable jury or judge
could have voted for such a conviction. Jackson v. Virginia,
supra. The court held only that “the standards are dif-
ferent and that when a defendant seeks to suppress an
allegedly involuntary witness statement, the coercive
police misconduct at issue must be egregious such that
it produces statements that are unreliable as a matter of
law.” 643 N.W.2d at 426. So if the court was unreason-
able in determining that the facts did not establish such
“egregious” police misconduct, the petitioner is entitled to
relief under 28 U.S.C. § 2254(d)(2) (state court’s decision
“based on an unreasonable determination of the facts in
light of the evidence presented in the State court pro-
ceeding”), as in Miller-El v. Dretke, 545 U.S. 231, 264-66
10 No. 07-1243
(2005), or Taylor v. Maddox, 366 F.3d 992, 999-1001 (9th
Cir. 2004).
The authorities responsible for the welfare of Tisha’s
baby had a legitimate concern with her failure to cooper-
ate with the criminal investigation of the defendant. They
were entitled to express that concern to her, so that she
could make an informed decision whether to cooperate,
knowing that her failure to do so would be weighed in
the balance that would determine whether she would
obtain custody of the child. Inevitably that concern and
the expression of it nudged her toward cooperation and
hence to making the statements that incriminated the
defendant. The threat of losing her baby was in the back-
ground, but it emanated primarily from the circum-
stances of Tisha’s weeks on the run while pregnant,
rather than from police misconduct. Or so the state courts
could conclude without being thought unreasonable.
Cf. Johnson v. Trigg, 28 F.3d 639 (7th Cir. 1994).
AFFIRMED.
ROVNER, Circuit Judge, concurring. Before I turn to my
point of dissension, I must begin with the many ways
in which I am in almost complete agreement with the
majority. The majority concludes that the state court of
Wisconsin need not treat coerced statements of non-
defendant witnesses the same way as coerced statements
of defendants. Although the latter must be suppressed,
the former need not. With this premise I agree. I also agree
No. 07-1243 11
with the majority’s reasoning as to why this is so. As the
majority correctly concludes, coerced statements by non-
defendant witnesses do not implicate a defendant’s
Fifth Amendment right against self-incrimination. The
only threat they pose to due process stems from their
inherent unreliability. If, for example, (again, as the
majority points out) a conviction rests entirely on a
coerced witness statement that is unreliable, such a con-
viction would deprive a defendant of due process of
law, “[f]or in such a case no reasonable judge or jury
could find that the defendant’s guilt had been proved
beyond a reasonable doubt.” Ante at 5 (citations omitted).
If the state court gains evidence from a non-defendant
witness in a manner that violates her rights, the
majority states, and I concur, that the remedy is not to
suppress that evidence, but for the aggrieved witness to
be made whole (to the extent the law is capable) by filing
a civil claim against the wrongdoers. Thus far I have
merely recited what the majority has said, far more elo-
quently than I. Nevertheless, in order to understand
where we differ, I must begin with where we agree.
In short, both the majority and I agree that our concern,
as a federal court reviewing a petition for habeas corpus,
is with due process rights of the defendant. More specifi-
cally, where a defendant complains about the admission
of a coerced statement from someone other than him-
self, our focus must be on the reliability of that state-
ment and the state court’s assessment of that reliability.
See 28 U.S.C. § 2254(d)(1). Any state rules or standards
that the state court may have applied in evaluating
the admissibility of the statement are irrelevant to our
analysis. Kubat v. Thieret, 867 F.2d 351, 358 (7th Cir. 1989)
(“[o]n habeas review our role is not to mandate optimal
12 No. 07-1243
procedures to the state courts. Rather, our role is to pro-
tect against constitutional error.”). Our concern is with
the bottom line—the reliability of the witness’ state-
ment—and whether that bottom line reflects a reason-
able application of United States Supreme Court precedent.
See 28 U.S.C. § 2254(d)(1).
The first (and, as I will argue shortly, the only) deter-
mination we must make, therefore, is whether Tisha’s
coerced statement was so unreliable as to deprive Stanley
Samuel due process of law. There were plenty of reasons
one could think that Tisha’s statement was unreliable.
The most obvious of which is that a mother threatened
with the loss of her newborn infant is likely to say any-
thing to keep her child. And there are others as well. The
majority opinion makes short shrift of some of the more
unseemly facts surrounding Tisha’s statement, but those
facts are as follows: forty hours after having given
birth, (and about three days after being reunited with
her father after thirteen months on the run with a forty-
seven-year-old pedophile) sixteen-year-old Tisha was
summoned to a meeting at the office of the corporation
counsel to determine whether she could keep her baby
in her custody. At that meeting Tisha was surrounded
by eight adults—a police officer, several attorneys, many
members of the Wisconsin Department of Health and
Family Services or the county equivalents (together,
“social services”) and her parents. She was exhausted
from a difficult delivery, she was medicated, she was
frightened and undoubtedly disoriented from her re-
entry into her community after thirteen months on the
run with a criminal. Tisha testified that she was told that
she would have to co-operate and tell the police officers
about her sexual activity with Samuel if she wanted to
No. 07-1243 13
keep her baby. (9-18-97 Tr. at 13, 15, 18, 27-28, 31-32) (12-2-
97 Tr. at 159-162) (12-3-97 Tr. at 202-206, 209). Her
father, Peter, testified that he was given the same im-
pression and that social workers specifically told him
the types of information that Tisha needed to provide. (9-
18-87 Tr. at 37-39, 40-41, 43) (12-1-97 Tr. at 195-97) (12-3-97
Tr. at 144-147). Significantly, Tisha’s attorney also testi-
fied that it was his impression that Tisha had to give a
statement to the investigating police officer before she
could get her baby back. (9-18-97 Tr. at 47). Even the
state’s main witness, social worker Rodney Schraufnagel,
testified that during the hearing and conference to deter-
mine where the baby would go, Tisha was told numerous
times that in order to make a determination about the
baby’s placement, the social workers would “need her
cooperation,” including disclosing information about
what she had done during her time with Samuel. (12-3-97
Tr. at 76-77, 111, 115-116). Officer Sagmeister, the police
officer in charge of the investigation into Samuel’s illegal
behavior, agreed that at the hearing to determine the
baby’s placement, Tisha had been told that she would
have to cooperate. (12-3-97 Tr. at 55). When Tisha refused
to cooperate and turn in the father of her child, her baby
was taken away. Then, less than twenty-four hours after
yielding to the state’s pressure and telling the police
exactly what they needed to prosecute Samuel, the baby
was back in her arms.
Despite these unseemly facts, the state presented an
overwhelming amount of corroborating evidence that
supported the version of events that Tisha reported in
her post-partum meetings with social services and the
police thus demonstrating the reliability of the state-
ments. In any event, the jury was free to weigh the evi-
14 No. 07-1243
dence of unreliability of the statement (there was plenty
of it, as described above, and the defense had ample
opportunity to put all of it into evidence) against the
weight of the other evidence. In short, we cannot con-
clude that Tisha’s coerced statement was so inherently
unreliable as to deny Samuel due process.
I part company with the majority when the opinion
comments on the legitimacy of the state’s actions in
removing Tisha’s baby from her physical custody. My
colleagues opine that the state court could reasonably
conclude that the Wisconsin state authorities had a legiti-
mate concern for the welfare of the infant—a con-
cern fueled, primarily, by Tisha’s failure to cooperate
with the criminal investigation of Samuel. The majority
enters this arena, ostensibly, in its effort to determine
whether the state court decision was based on an unrea-
sonable determination of the facts in the light of the
evidence presented in the state court proceedings. Ante
at 9; see also 28 U.S.C. 2254(d)(2). In Samuel’s state court
proceedings, the Wisconsin Supreme Court concluded
that in order to suppress an alleged involuntary state-
ment by a non-defendant witness, “the coercive police
misconduct at issue must be egregious such that it pro-
duces statements that are unreliable as a matter of law.”
State v. Samuel, 643 N.W.2d 423, 426 (Wis. 2002). The
majority then proceeds to determine whether the state
court reasonably could have found the facts surrounding
Tisha’s statement to be “not egregious.”
Wisconsin may require that the coercion be so egre-
gious as to be unreliable, but in this way Wisconsin has
engrafted an extraneous factor onto the due process
analysis. As both the majority and I have explained, the
only inquiry we must make for federal due process pur-
No. 07-1243 15
poses is whether the statement was so unreliable as to
deprive Samuel due process of law. The egregiousness
of the coercion of the non-defendant witness (although
worthy of our comment as human beings), is of no
moment to a federal court reviewing the criminal defen-
dant’s due process claim. In cases where the Wisconsin
court thinks that the state actors behaved egregiously, it
might exclude a statement based on that egregiousness
when that statement is in fact reliable. Conversely, it
might allow the admission of statements that are not the
product of egregious coercion but that are nonetheless
completely unreliable. Because egregiousness is an extrane-
ous factor not necessarily determinative of reliability, it is
beyond our power to review. “Errors of state law in and
of themselves are not cognizable on habeas review. The
remedial power of a federal habeas court is limited to
violations of the petitioner’s federal rights, so only if a
state court’s errors have deprived the petitioner of a
right under federal law can the federal court intervene.”
Perruquet v. Briley, 390 F.3d 505, 511-12 (7th Cir. 2004)
(internal citations omitted). The touchstone of due
process, for our purposes, is the reliability of Tisha’s
statement rather than the egregiousness of the state’s
actions. Consequently, the state’s actions, even if egre-
gious, did not deprive Samuel of due process.
For these reasons, the majority’s exploration into the
legitimacy of the infant’s removal is unnecessary to our
limited review. Nonetheless, because I think reasonable
minds could differ, and because I am concerned that
we not place our imprimatur of approval on the state’s
actions, particularly when unnecessary, I am compelled
to follow the piper into the river.
When the state removes a child from the custody of its
parents, it is trampling on one of the most fundamental
16 No. 07-1243
and personal rights—the right to parent a child. It is a
drastic measure and made even more so when the state
removes a baby just days after birth, when mother-infant
bonds are forming, when milk production begins, and
when women are adjusting to a number of physical and
emotional changes and demands of motherhood. A
state may not turn to such a drastic remedy—even in
compelling circumstances—unless there is no other
more narrow method of protecting a child. Indeed, the
State of Wisconsin reflects this constitutional requirement
in its legislation which states that it will remove a child
from the custody of a parent “only where there is no less
drastic alternative.” Wis. Stat. § 48.355(1).1
The majority opinion indicates that the state authorities
had a legitimate concern with the baby’s welfare due to
Tisha’s failure to cooperate with the criminal investiga-
tion and her weeks on the run while pregnant. Indeed,
the principal social worker involved in the case indicated
that the primary reason for removing Tisha’s daughter
was that social services workers feared that Tisha would
abscond with the baby and seek refuge with the same
persons who had aided Samuel during their thirteen
months on the run. Removing Tisha’s baby seems to be
far from the “least drastic” measure possible, however.
Tisha’s father and live-in girlfriend had custody of Tisha
and indicated their willingness to monitor Tisha and the
1
Although this language comes from a statute describing
the considerations of judges in more complete fact-finding
hearings—as opposed to the more preliminary kind to which
it appears Tisha was subjected—due process requires a state
to have a narrowly tailored solution to any intrusion on the
right to parent.
No. 07-1243 17
baby closely, but there is no testimony in the record as to
why their competence was doubted. See e.g. Wis. Stat.
§ 48.355(1) (“If there is no less drastic alternative for a
child than transferring custody from the parent, the
judge shall consider transferring custody to a relative
whenever possible.”). Tisha and her child could have
been held together in a secure facility—perhaps in the
medical unit of a youth facility or in another facility
where female youth offenders who have just given birth
are held. Even adult criminal offenders in Wisconsin are
eligible to maintain physical custody of their very young
children in the Mother-Young child care program. Wis.
Stat. § 301.049. There are, of course, other possibilities,
and surely social services was familiar with many of them
in light of its obligation to preserve the family units
whenever possible in conformity with the legislative
purpose of the Children’s Code governing the Department
of Health and Family Services. See e.g. Wis. Stat. § 48.01(a).
The state had a few other toothless justifications for its
concern about the baby’s welfare, but these can be quickly
dismissed. Any concerns about STDs and HIV could
have easily been addressed by testing both Tisha and her
baby for STDs and HIV with Tisha’s informed consent.
(See 12-3-97 Tr. at 77). (In fact, since the CDC recommends
that all pregnant women receive an HIV test and that those
who have had no prenatal care be encouraged to have a
rapid HIV test when arriving at the hospital, it is likely
that Tisha was indeed tested. See http://www.cdc.gov/
mmwR/preview/mmwrhtml/rr5514a1.htm.) The state
also expressed some concern over Tisha’s lack of prenatal
care, but this is hardly a reason to take the drastic step
of removing a child from parental custody. In 1996
alone, 2,146 women in the state of Wisconsin gave birth to
18 No. 07-1243
babies who had received late or no prenatal care (3.2% of
all births statewide). See http://www.dhfs.state.wi.us/
WISH/index.htm. Furthermore, more than twenty-five
thousand births in Wisconsin in 1996 (37.5% of all births
statewide) were to women between the ages of fifteen and
nineteen. Id. Surely the state does not conduct hearings
to determine the appropriate placement for all babies
born to unmarried teenage mothers. Consequently, with-
out much meaningful rationale for questioning Tisha’s
competency as a mother, it does indeed appear that
social services used the baby’s placement hearings as
pretext to garner information for Samuel’s criminal prose-
cution.
In short, rather than exploring any less drastic alterna-
tives, the state authorities dangled the infant before Tisha.
Once Tisha gave the police all the information the state
needed to prosecute Samuel, the authorities returned
Tisha’s baby to her. Civilized governments do not take
babies away to coerce a victim’s testimony—even in the
name of protecting that victim and others.
The dissenting justice on the Wisconsin Supreme Court
stated,“[l]ower courts will ask, with some degree of
confusion, if these facts do not [constitute egregious
police misconduct], what does?” State v. Samuel, 643
N.W.2d 423, 436 (Wis. 2002). The majority of that court
believed otherwise. This is not, however, our battle to
enter. Whether the state’s behavior was egregious
or not, the use of Tisha’s statement did not violate the
defendant, Samuel’s, due process rights. The injury from
the state’s behavior was to Tisha and it was Tisha who
had the option of seeking a remedy.
USCA-02-C-0072—5-12-08