September 5, 2023
What you’ll read:
- Vacancies & Elections Roundup: New state supreme court justices and nominees in Oregon, Minnesota, Tennessee, & Connecticut; plus a North Carolina Democrat steps down
- Issue Spotlight: False Confessions & State Supreme Courts—Michigan Supreme Court Tosses Coerced Confession But Fails To Make Clear Constitutional Rule
- State Supreme Courts In The News: Delaware Supreme Court Upholds Unaffordable Money Bail; Missouri Supreme Court OKs Jailing Parents Over Missed School Days; Republicans in North Carolina & Wisconsin Work To Remove Liberal Justices
Vacancies & Elections Roundup
- The Oregon Supreme Court remains a majority of former public defenders and civil rights lawyers after Governor Tina Kotek appointed Aruna Masih. Masih, who is the first Indian American and South Asian justice on the court, spent the bulk of her legal career representing employees and labor unions, including in civil rights cases. She replaced former public defender Adrienne Nelson, who is now on the Ninth Circuit Court of Appeals.
- Justice Natalie Hudson will be Minnesota’s first Black chief justice after Lorie Gildea, the court’s current chief, retires next month. To fill Hudson’s seat, Governor Tim Walz appointed his former Deputy General Counsel Karl Procaccini. Procaccini left the governor’s office to teach at St. Thomas School of Law, and previously practiced corporate law.
- In Tennessee, members of the state supreme court similarly selected a current member, Justice Holly Kirby, as the court’s new chief. She replaced former Chief Justice Sharon Lee, who retired on September 1. To fill Kirby’s seat, Governor Bill Lee appointed Dwight Tarwater, who had been chief legal counsel to former Republican Governor Bill Haslam.
- Connecticut Governor Ned Lamont has made his second attempt to replace former Justice Maria Araújo Kahn, whom President Biden appointed to the Second Circuit Court of Appeals. Lamont’s first nominee, prosecutor Sandra Slack Glover, withdrew under criticism over her support for Amy Coney Barrett’s 2017 confirmation to the Seventh Circuit Court of Appeals. This time Lamont nominated Nora Dannehy, another career prosecutor and his former General Counsel. Steve Kennedy, an organizer with the People’s Parity Project, criticized the pick: “While Attorney Dannehy is a very experienced attorney,” he said, “we are disappointed to see the governor nominate yet another prosecutor to the state’s highest court when we still do not have a single appellate-level judge with experience in public defense, legal aid, or civil rights.”
- North Carolina Justice Michael Morgan, who had been one of two Democrats on the seven-member court, stepped down yesterday. Morgan had already said that he will not seek re-election next year, and his decision to leave now allows Democratic Governor Roy Cooper to appoint a replacement to complete Morgan’s term. Read More: On his last day, Justice Morgan joins Republicans to uphold death sentence over Justice Anita Earls’ dissent. [The Carolina Journal]
- Missouri’s Appellate Judicial Commission named three finalists to fill a current state supreme court vacancy. All three are current state court judges, and one, Judge Kelly Broniec, is a former prosecutor. The Commission is a seven-member body that includes one current supreme court justice, three lawyers, and three non-lawyers. Currently, each of the three lawyers is a plaintiff’s-side private attorney.
Michigan Supreme Court Tosses Conviction Over Coerced Confession, But Fails To Make Clear Constitutional Rule
In 2019, the Hawaii Supreme Court made a groundbreaking ruling that restricted police deception during interrogations: Falsely telling someone that they have failed a polygraph test, the court held, is inherently coercive and any resulting statements must be excluded from trial. The court relied on “extensive scientific literature and numerous documented cases [that] have demonstrated the coercive nature of falsified polygraph test results,” which “can change a suspect’s beliefs, pressure a suspect to confess, and even cause the suspect to believe they committed the crime when they did not.”
Much of the ruling’s impact came from its clarity. It did not simply observe that lies about polygraph results can be coercive; it created a bright-line rule. Police are not allowed to use that tactic, and if they do then any resulting evidence is thrown out.
At the time, I wrote about how the court’s rationale applies with equal force to all forms of police deception, and how police lies during interrogation—especially about the amount of evidence, or “false evidence ploys”—can produce false confessions and wrongful convictions. Indeed, one 2019 paper found that at least 23% of false confessions in exoneration cases were in part the product of police lies that did not rise to the level of misconduct under current case law.
This year, the Michigan Supreme Court could have adopted the Hawaii court’s reasoning and applied it more broadly to protect people—or at least young people—from the coercive force of police deception. But rather than break new ground under the state constitution, the court took a modest approach that followed federal footsteps.
In 2016, 18-year-old Joshua Stewart told police that he was the getaway driver in two armed robberies. Stewart had initially denied any involvement, and his admission came only after hours of heated, middle-of-the-night questioning that included lies about the evidence against him. “The officers, while asserting that they had not lied to [Stewart] all evening, told [Stewart] that they had an eyewitness who confidently placed [him] at the scene of one of the robberies and home video surveillance that did the same. Neither claim was true.” Stewart was later convicted and sentenced to decades in prison.
On July 31, the Michigan high court held 5-2 that Stewart’s confession had been coerced—a violation of due process and the right against self-incrimination. But despite “concern” over “research illustrating a strong correlation between the use of false evidence and an interrogee providing a false confession,” the court declined to adopt any clear rules about police deception. Instead, the court examined “the totality of the circumstances” to find that, given the specific facts surrounding Stewart’s interrogation (including his age), his statement was involuntary.
The good news is that the court acknowledged the roles of youth and deception in false confessions. In particular, the court extended the rationale underlying its recent youth sentencing cases to the context of police interrogations. Last summer, the court made a series of rulings that protect kids and young adults from draconian prison terms, including one, State v. Parks, that banned mandatory life without parole for 18-year-olds. In Stewart, the court recognized that teenagers are more susceptible to coercion for the same reasons they have reduced culpability and a greater capacity to change: “Because their development is not yet complete,” the court said, “18-year-olds are hampered in their ability to make decisions, exercise self-control, appreciate risks or consequences, feel fear, and plan ahead; [and] are more susceptible to negative outside influences, including peer pressure.” That the court once again grounded its constitutional analysis in empirical and scientific reality is a promising sign.
But the bad news is that such a fact-dependent ruling may prove to be more one-off relief than meaningful reform. The “totality of the circumstances” standard “has been interpreted by police and the courts as a green light to deception,” according to a 2009 white paper on false confessions in the Journal of Law & Human Behavior. In 1969, the Warren Court applied the test to unanimously condone police deception, noting that deceptive tactics may contribute to coercion, but are not necessarily unlawful. And given the opportunity to say that Michigan’s state constitution requires more—that it prohibits “false evidence ploys” per se—the state’s high court reaffirmed the federal standard.
In vacating Stewart’s conviction, the court made clear that young people are especially susceptible to police coercion. That’s why at least six states have passed legislation prohibiting police from lying to youth during questioning. Michigan’s supreme court could have made a similar rule under its state constitution—and counted 18-year-olds among protected youths, as the court did in Parks—and its failure to do so ensures that police will continue to push the bounds of coercive interrogation.
State Supreme Courts In The News
Delaware Supreme Court Upholds Unaffordable Money Bail. While conceding the injustice of using cash bail to jail people before trial—a system that discriminates against the poor—the Delaware Supreme Court held that there is no federal or state constitutional right to affordable bail. The right to bail in Delaware’s constitution, the court said, does not preclude setting bail at an unaffordable amount in order to force incarceration. In its opinion, the court “recognize[d] that a bail system that allows a dangerous, but affluent, defendant to gain pretrial release while a non-dangerous defendant without bail resources is detained pending trial is a system in need of repair.” But this “flaw … is not constitutional in magnitude; whether it is tolerable is for the democratic process to decide,” the court said. Related: In 2021, the California Supreme Court ruled in In re Humphrey that courts must consider people’s ability to pay when setting bail, and “may not effectively detain the arrestee ‘solely because’ the arrestee ‘lacked the resources’ to post bail.”
Missouri Supreme Court Upholds Convictions For Missed School Days. If the young child of a single parent has missed 15 school days without explanation, is a sensible solution locking that parent in a jail cell? The Missouri Supreme Court sidestepped that particular question, but held this month that doing so is constitutional. Read the opinion.
Republicans In North Carolina & Wisconsin Try To Remove Liberal Justices. In North Carolina, a “Republican-stacked judicial ‘ethics’ commission” has been investigating Justice Anita Earls—a Black woman who is currently the state supreme court’s only Democratic member—for the offense of speaking “out about racial bias in her courtroom.” “The trumped-up charge against Earls is politically motivated,” Billy Corriher writes in Slate. “If this complaint had been filed a few years ago, it would’ve been summarily dismissed. But the commission has become yet another weapon for the North Carolina GOP to wield against judges who won’t do the bidding of the party or its corporate campaign contributors.” [Slate]
Meanwhile, Wisconsin Republicans have threatened to impeach newly-elected Justice Janet Protasiewicz before she even hears a case. Not coincidentally, Protasiewicz’s election flipped the court from a conservative to liberal majority. [Milwaukee Journal Sentinel | Wisconsin Watch]