Cream City Chronicles: Episode 6 of Unsolved & The Ability of Police to Lie While Questioning Suspects

I have written four posts (here, here, here, and here) about the Unsolved Podcast, a deep dive into the unsolved 1976 disappearance and death of fourteen year-old John Zera in Milwaukee, Wisconsin. This post is about Episode 6, which deals with all of the issues surrounding the medical examiner and the autopsy she performed in the case. Specifically, it deals with this portion of the episode:

Relying on a 1969 U.S. Supreme Court ruling that allows police to lie to a suspect to get a confession, [Detective Kent] Schoonover doctored the state crime lab’s report to make it look as if [Michael] Uporsky’s DNA had, in fact, been found on John’s body.

For background on Uporsky, you can read my prior post. For background on the Supreme Court’s opinion, you can read Frazier v. Cupp, 394 U.S. 731 (1969). In Cupp, the defendant and his cousin were charged with murder. While interrogating the defendant, an officer told him, falsely, that his cousin “had been brought in and that he had confessed.” The defendant thereafter confessed to the crime and later appealed, claiming that his confession was involuntary based upon the officer’s lie. The Supreme Court disagreed, concluding that

The fact that the police misrepresented the statements that Rawls had made is, while relevant, insufficient in our view to make this otherwise voluntary confession inadmissible. These cases must be decided by viewing the ‘totality of the circumstances,’…and on the facts of this case we can find no error in the admission of petitioner’s confession.

The question left for state courts, then, was how far the police can go in lying to a suspect before the suspect’s confession is deemed involuntary?. For instance, if Uporsky had confessed to killing John Zera, would his confession have been deemed involuntary based upon Schoonover doctoring the state crime lab’s report to make it look as if Uporsky’s DNA had been found on Zera’s body? Probably not.

In State v. Woods, 345 N.W.2d 457 (Wis. 1984), Burdette Woods was charged with second-degree murder and manslaughter in connection with the deaths of Henry and Beryl Schwab. According to the Supreme Court of Wisconsin,

It is undisputed that during Thorpe’s and Ankenbrandt’s questioning of Woods, they made statements to the effect  that they had more evidence against Woods linking him to the Schwab murders than they actually had. It is also undisputed that during Ankenbrandt’s and Harker’s questioning of Woods, Ankenbrandt showed him Henry Schwab’s wallet and a fingerprint card with two circles drawn around the prints. Ankenbrandt tapped the fingerprint card and wallet and said to Woods something to the effect that “this is what’s going to pin you down”. The first statements were clearly misrepresentations, because the officers later testified that they knew them to be false at the time they made the statements. In addition, the statements were of a type that could reasonably have created a misimpression in Woods’ mind. The second alleged misrepresentation is of a somewhat different nature, in that the statement by the police was an indication that evidence existed which the police at that time did not positively know to be untrue. We conclude, however, that this was also a misrepresentation. The officers made the statement without regard to its truth, and it was also of a type likely to create a misimpression in the defendant’s mind.

The Supreme Court of Wisconsin, however, found that this deception was not enough to render Woods’ confession involuntary and noted that

This holding is consistent with decisions by other courts that have addressed the issue of the effect of misrepresentation on the voluntariness of a confession. For example, in People v. Boerckel, 68 Ill.App.3d 103, 24 Ill.Dec. 674, 385 N.E.2d 815 (1979), police misrepresented to the defendant that his fingerprints had been found at the scene of the crime. The defendant then confessed to the crime and subsequently argued that his confession was coerced and involuntary. The court indicated that the test of voluntariness of a confession is whether it was made freely and without compulsion. The court held that the misrepresentation did not render the confession involuntary. Similarly, in State v. Winters, 27 Ariz.App. 508, 556 P.2d 809 (1976), police misrepresented to the defendant that his fingerprints matched those found at the scene of the crime. The defendant confessed to the crime, and argued that his confession was involuntary. The court stated that voluntariness must be viewed in relation to the totality of circumstances, and that a statement induced by fraud or trickery is not involuntary unless there is additional evidence that the defendant’s will was overborne or that the confession is unreliable. The rationale for applying those principles to the issue before us is the same.

So, what would have happened if Uporsky confessed? The State would have claimed that lying about his DNA being on Zera’s body was analogous to lying about a suspect’s fingerprints being at the crime scene (and on one of the victim’s wallet and ID card). Uporsky would have claimed that DNA evidence is stronger than fingerprint evidence and that DNA on the victim’s body is more incriminatory than fingerprints found at the crime scene (or even on a victim’s wallet and ID card). In the end, I don’t think that the court would buy Uporsky’s distinction, but you never know.

What we do know is that the police are given quite a long leash to lie to suspects, which facilitates both rightful and wrongful confessions. The question is whether it produces (or ethically could produce) enough of the former to justify the latter.

-CM