Jan. 9, 2013 – Dennis Lemoine fessed up to sexually assaulting a five-year-old girl after police leaned on him with tactics Lemoine says were deceptive and coercive. But the Wisconsin Supreme Court recently affirmed his conviction, ruling that police did not cross the line.

“[Using deception in an interrogation is common and generally acceptable,” wrote Justice Patrick Crooks for a 7-1 majority. “Balanced against Lemoine’s characteristics, [police] conduct was not so coercive that it overcame Lemoine’s ability to resist.”

The case, State v. Lemoine, 2013 WI 5 (Jan. 8, 2013), stemmed from Lemoine’s 2007 encounter with a friend’s child, who told her parents that Lemoine touched her inappropriately.

The parents called Madison police, which asked Lemoine to come in for voluntary questioning. Because he was not considered to be “in custody,” police did not read him his Miranda rights.

During an 80-minute interview, police interrogators “overstated the evidence against Lemoine and provided Lemoine with incentives to give information,” according to the opinion.

For instance, police promised Lemoine he would not go to jail that day if he told the true story, and said he would not be able to call anyone from jail, implying he could not call a lawyer.

They said the victim had gone through extensive medical procedures, which was true. But police interrogators also said it didn’t look good for for him, implying that examiners may have found evidence to implicate him in the crime. They also said a felony conviction would not impact his job as a truck driver.

Lemoine caved and confessed. Police issued a citation and released him, but soon arrested him for first-degree sexual assault of a child. Before trial, Lemoine moved to suppress his statements to police as involuntary and coerced and thus inadmissible. The motion was denied.

After a four-day jury trial, he was convicted. An appeals court affirmed the conviction, reasoning that even if Lemoine’s statements were involuntary, admission of the statements into evidence was harmless error. Lemoine appealed that decision to the supreme court.

Supreme Court Affirms

Justice Crooks delivered the opinion for a 7-1 majority.

The Wisconsin Supreme Court explained that statements are voluntary and not unlawfully coerced “if the pressures exerted by police do not exceed the defendant’s ability to resist.”

That is, courts balance the personal characteristics of a defendant with the pressures exerted by police to determine if a voluntary statement was made against the defendant’s free will.

Lemoine, 22 years old, says police preyed on his vulnerable personal characteristics, including his age and inexperience with police. But the state argued that Lemoine was an adult with the intelligence to understand that his statements were made voluntarily and not against his will.

Distinguishing other cases involving minors or individuals who suffered from mental or physical sickness when interrogations took place, the majority perceived no indication of physical or psychological pressure by police in the video-taped recording available to the trial court.

“Lemoine was not particularly vulnerable, and therefore, the conduct of the officers was insufficient to overcome Lemoine’s ability to resist,” Justice Crooks explained.

The majority reiterated that Lemoine was not “in custody,” which would have required police to warn him of his right to remain silent or to have an attorney present. Lemoine conceded this.

In her lone dissent, Chief Justice Shirley Abrahamson said it was a “close case” but argued that police coerced involuntary confessions. She argued that Lemoine was “susceptible to police coercion” and misinformed about his right to call an attorney unless he confessed.

Police had given Lemoine the option to tell the “true story” or spend the night in jail, and said Lemoine could not make phone calls from jail. That’s not true.

As the opinion notes, it is unconstitutional to hold an individual in custody without allowing him or her to contact an attorney. The majority noted that Lemoine wasn’t in custody; he could have called an attorney at any time. But the chief justice took issue on this point.

“Tipping the scale for me here is that in addition to the deceptive interrogation techniques and the defendant’s personal vulnerabilities, the law enforcement officers misinformed the defendant of his constitutional right to call an attorney,” the chief justice wrote.

Her dissenting opinion also noted that police asked the defendant for a DNA swab, implying there was DNA evidence. In reality, the victim’s exam found no evidence of sexual assault.