Supreme Court of the United States

Transcription

1 NO IN THE Supreme Court of the United States OCTOBER TERM 2016 STATE OF WEST CAROLINA, Petitioner, versus RUBEN C. MASON, Respondent. On Writ of Certiorari to the Supreme Court of West Carolina BRIEF FOR PETITIONER TEAM 2529 Attorneys for Petitioner

2 QUESTIONS PRESENTED I. Does the Self-Incrimination Clause of the Fifth Amendment prevent a repeated child molester s confession from being admitted into evidence when it was obtained during court-ordered counseling? II. Does the Confrontation Clause of the Sixth Amendment bar a psychologist s prior evaluation of a convicted sex offender from being used in a subsequent sexual assault trial of the same offender when the evaluation was conducted solely for purpose of sentencing and without regard to future litigation? III. Does a defense attorney s failure to object to the admission of evidence on constitutional grounds give rise to a claim of ineffective assistance of counsel when the attorney still objected to the evidence on statutory grounds? i

3 TABLE OF CONTENTS Page QUESTIONS PRESENTED... i TABLE OF AUTHORITIES... iv OPINIONS BELOW...1 CONSTITUTIONAL PROVISIONS INVOLVED...1 STATEMENT OF THE CASE...1 I. STATEMENT OF THE FACTS...1 II. PROCEDURAL HISTORY...4 SUMMARY OF THE ARGUMENT...5 ARGUMENT AND AUTHORITIES...8 I. RESPONDENT SHOULD NOT ESCAPE RESPONSIBILITY FOR SEXUALLY ASSAULTING A CHILD UNDER HIS SELF-INCRIMINATION CHALLENGE BECAUSE HE VOLUNTARILY CONFESSED TO THE CRIME...8 A. Respondent s Confession Was Not Compulsory Because the Suggestion That His Prison Sentence Could Be Extended if He Did Not Comply Was Not Coercive...9 B. Respondent Was Not Entitled to a Miranda Warning Because the Therapy Session in Which He Confessed Was Not a Custodial Interrogation...13 C. Confessions Are Crucial to Sexual Assault Investigations Because Victims Are Reluctant to Testify, and Releasing Guilty Criminals Implicates the Safety of Those Innocent Victims...17 II. THE SIXTH AMENDMENT CONFRONTATION CLAUSE CANNOT EXCLUDE MS. COHEN S EVALUATION BECAUSE IT WAS NOT A TESTIMONIAL STATEMENT...20 A. Ms. Cohen s Evaluation Was Not Testimonial Because It Was Not Developed for the Primary Purpose of Prosecuting Respondent...21 B. Ms. Cohen s Evaluation Is Irreplaceable Because It Establishes Respondent s State of Mind Closest to the Time of the Crime...23 ii

4 III. MASON S COUNSEL WAS NOT INEFFECTIVE BECAUSE IT WAS NOT UNREASONABLE FOR HER TO DECLINE TO RAISE OBJECTIONS BASED ON CONSTITUTIONAL GROUNDS IN FAVOR OF STATUTORY OBJECTIONS...25 A. The Failure to Object on Constitutional Grounds Is Not So Unthinkable That It Overcomes the Strong Presumption of Reasonable Professional Conduct...26 B. Mason Was Not Prejudiced by His Attorney s Failure to Object on Constitutional Grounds Because the Jury Could Have Relied on Other Evidence to Convict Him...28 CONCLUSION...30 APPENDICES: APPENDIX A : CONSTITUTIONAL PROVISIONS... A-1 iii

5 TABLE OF AUTHORITIES Page(s) UNITED STATES SUPREME COURT CASES: California v. Beheler, 463 U.S (1983) (plurality opinion)...14 Crawford v. Washington, 541 U.S. 36 (2004)...20, 21, 23 Davis v. Washington, 547 U.S. 813 (2006)...21 Doe v. United States, 487 U.S. 201 (1988)...8 Gideon v. Wainwright, 372 U.S. 335 (1963)...25 Hiibel v. Sixth Judicial Dist. Court of Nev., 542 U.S. 177 (2004)...8, 9 Howes v. Fields, 132 S. Ct (2012)...14 J.D.B. v. North Carolina, 564 U.S. 261 (2011)...11, 12 Lefkowitz v. Cunningham, 431 U.S. 801 (1977)...9 Malloy v. Hogan, 378 U.S. 1 (1964)...8 Maryland v. Kulbicki, 136 S. Ct. 2 (2015) (per curiam)...25, 27, 28 Maryland v. Shatzer, 559 U.S. 98 (2010)...8, 14 Mathis v. United States, 391 U.S. 1 (1968)...16 iv

6 Mckune v. Lile, 536 U.S. 24 (2002) (plurality opinion)...9 Michigan v. Bryant, 562 U.S. 344 (2011)...22 Minnesota v. Murphy, 465 U.S. 420 (1984)...10, 11 Miranda v. Arizona, 384 U.S. 436 (1966)... passim Ohio v. Clarke, 135 S. Ct (2015)...22, 23 Old Chief v. United States, 519 U.S. 172 (1997)...23 Patterson v. Illinois, 487 U.S. 285 (1988)...9 Pointer v. Texas, 380 U.S. 400 (1965)...20 Stansbury v. California, 511 U.S. 318 (1994) (per curiam)...14 Strickland v. Washington, 466 U.S. 668 (1984)...25, 26, 27, 28 Williams v. Illinois, 132 S. Ct (2012) (plurality opinion)...22 Woods v. Etherton, 136 S. Ct (2016) (per curiam)...26, 27 UNITED STATES CIRCUIT COURT CASES: Cervantes v. Walker, 489 F.2d 424 (9th Cir. 1978)...17 Levingston v. Black, 843 F.2d 302 (8th Cir. 1988)...15 v

7 Muniz v. Smith, 647 F.3d 619 (6th Cir. 2011)...28, 29 Murray v. Earle, 405 F.3d 278 (5th Cir. 2005)...14 United States v. Chamberlain, 163 F.3d 499 (8th Cir. 1998)...16 United States v. Cooper, 800 F.2d 412 (4th Cir. 1986)...15 United States v. Grimes, 142 F.3d 1342 (11th Cir. 1998)...16 United States v. Menzer, 29 F.3d 1223 (7th Cir. 1994)...14, 15 United States v. Mittel-Carey, 493 F.3d 36 (1st Cir. 2007)...14 United States v. Turner, 28 F.3d 981 (9th Cir. 1994)...15 United States v. Willoughby, 860 F.2d 15 (2d Cir. 1988)...15 STATE COURT CASES: A.C. v. Ind. Dep t of Child Servs., 17 N.E.3d 299 (Ind. Ct. App. 2014)...12 Commonwealth v. Knoble, 42 A.3d 976 (Pa. 2012)...11, 12, 18 Commonwealth v. Schrawder, 940 A.2d 436 (Pa. Super. Ct. 2007)...12 People ex rel. M.M., 215 P.3d 1237 (Colo. App. 2009)...12 vi

8 Russel v. State, 109 A.3d 1249 (Md. Ct. Spec. App. 2015)...12 State v. Smart, 201 P.3d 123 (Mont. 2009)...12 CONSTITUTIONAL PROVISIONS: U.S. Const. amend. V...1, 8 U.S. Const. amend. VI...1, 20, 25 U.S. Const. amend. XIV...8, 20, 25 RULES: Fed. R. Evid , 24 Fed. R. Evid , 24 Fed. R. Evid. 803(3)...24 Fed. R. Evid LEGAL PERIODICALS: Paul S. Appelbaum & Alan Meisel, Therapists Obligations to Report Their Patients Criminal Acts, 14 Bull. Am. Acad. Psychiatry L. 221 (1986)...13 George L. Blum, Removal of Adults from State Sex Offender Registries, 77 A.L.R.6th 197 (2012)...19 vii

9 Jeffery F. Ghent, Criminal Law: Official Statement Mistake of Law Defense, 89 A.L.R.4th 1026 (1991)...13 Catherine Richmond & Melissa Richmond, The Future of Sex Offense Courts: How Expanding Specialized Sex Offense Courts Can Help Reduce Recidivism, 21 Cardozo J.L. & Gender 433 (2015)...18 Keith Soothill, Sex Offender Recidivism, 39 Crime & Just. 145 (2010)...19 DICTIONARIES: Black s Law Dictionary (10th ed. 2014)...21 COURT FILINGS: Brief for Petitioner at 23, Crawford v. Washington, 541 U.S. 36 (2004) (No )...20 viii

10 OPINIONS BELOW The opinion of the Court of Appeals of West Carolina is unreported but appears on the record at pages 1 to 12. The opinion of the Supreme Court of West Carolina is also unreported but appears on the record at pages 13 to 26. CONSTITUTIONAL PROVISIONS INVOLVED This case concerns the Fifth and Sixth Amendments to the United States Constitution. U.S. Const. amends. V, VI. See App. A. STATEMENT OF THE CASE I. STATEMENT OF THE FACTS This case is about a twice convicted child molester escaping criminal responsibility for the sexual assault of his minor sister, despite his confession to the crime. R. at 2 4, 13. The lower court vacated his second conviction and, should that order stand, a repeat sexual offender will be allowed to rejoin society at large. R. at 23. Respondent s First Conviction and the Pre-Sentencing Evaluation. Respondent Ruben Mason pled guilty to the sexual assault of his six-year-old, female cousin in R. at 2. As part of a plea agreement, the prosecutor insisted on obtaining a psychosexual evaluation of Mason prior to Mason s sentencing hearing. R. at 2. Barbara Cohen, in the midst of obtaining her doctorate in psychiatry, conducted the evaluation under the supervision of psychiatrist Dr. George Knowles, a licensed physician. R. at 2. The evaluation was conducted in a mental health treatment center located in the juvenile detention center where Mason was detained. R. at 2. Dr. Knowles reviewed and approved Cohen s resulting report. R. at 2. Cohen s report diagnosed Mason as a pedophile with an unspecified personality disorder and recommend that he complete a Juvenile Sexual Offender Management (SOM) program. R. at 1

11 2. She also recommended that he receive treatment for posttraumatic stress disorder, a possible result of Mason s own suspected sexual assault by his mother. R. at 2. Cohen s report also mentioned Mason s lack of prior known criminal history and the fact that Mason s mother had been investigated for sexual abuse. R. at 2. Mason was sentenced to two years of confinement in a state juvenile detention center, as a fourteen-year-old, and ordered to complete an SOM program, the exact details of which were not expressed to him prior to his plea agreement. R. at 2 3. The trial court also granted the detention center the ability to extend Mason s sentence to his eighteenth birthday if he did not complete the program. R. at 2. Respondent s Confession During Court-Ordered Therapy. Mason was reluctant to comply with the requirements of the SOM program. R. at 3. During group therapy sessions, he denied having committed any other sexual offenses when discussing his sexual history. R. at 3. Those claims were contradicted by his therapeutic polygraph results. R. at 3. Mason also exhibited emotional instability during his confinement, resulting in depression symptoms, sleeplessness, threats of self-harm, and aggression toward other inmates. R. at 3. He was placed on a waitlist for his posttraumatic stress treatment but never received it due to the length of the list. R. at 3. Over the course of his sentence, Mason continued to refuse to participate in group therapy discussions and refused to participate in any further polygraph therapy at all. R. at 3. Mason s program counselor, Mr. Howard Barker, grew concerned with Mason s refusal to participate fully in the program. R. at 3. Mason was advised by Barker that he could not complete the SOM program if he did not discuss the details of his sexual history. R. at 3. Mason was also advised by Barker that the detention center administration planned to adjust Mason s release date because he had failed to cooperate with the SOM requirements. R. at 3. Upon 2

12 returning to polygraph therapy, Mason confessed to sexually assaulting his younger sister at the same time as his previous crime. R. at 3. As required by West Carolina law, Mason s confession was reported to the appropriate authorities for further investigation. R. at 3. Respondent s Second Conviction and Subsequent Appeal. Mason s, now twelve-year-old, sister was asked in a child forensic interview whether she had ever had sexual contact with Mason. R. at 3. She responded that she had when she was seven or eight years old. R. at 3. Later in a second interview, she suddenly reversed her original statements without explanation and refused to cooperate further. R. at 3. Mason, after being informed of the investigation against him, once again refused to cooperate with the SOM program. R. at 4. When the investigation concluded in 2008, Mason was charged as an adult with two counts of aggravated sex offense with a child for the abuse of his sister, having reached seventeenyears-old. R. at 4. Having never, completed the SOM program, Mason was transferred to an adult prison when he turned eighteen where he awaited his trial. R. at 4. Mason was tried by a jury of his peers and found guilty of both counts of aggravated sex offense with a child. R. at 4. Admitted into evidence against him were the transcript of his SOM treatment record, including his confession, and Cohen s pre-sentencing evaluation from his previous case, despite the fact that she was unavailable to testify due to military deployment. R. at 4. Mason s attorney objected to the admission of both of these, but not on constitutional grounds. R. at 4. Mason was sentenced to fifteen years of confinement and again ordered to complete an SOM program, despite the objection of his counsel. R. at 4 5. Mason directly appealed his conviction and asserted three alleged grounds for reversal: 1) his lawyer should have objected to the admission of his confession under the Fifth Amendment right against self-incrimination; 2) his lawyer should have objected to the admission of Cohen s pre-sentencing evaluation under the 3

13 Sixth Amendment Confrontation Clause; and 3) his Sixth Amendment right to effective counsel was violated because his lawyer failed to object on those previous two constitutional grounds. R. at 5. II. PROCEDURAL HISTORY Wash County Superior Court. At trial, the State successfully admitted a transcript of Mason s entire treatment record, including his confession, into evidence. R. at 4. Mason s defense attorney objected on grounds that the record was inadmissible under the West Carolina statutory counselor-patient privilege. R. at 4. The court overruled the objection and exercised its discretion to admit the record in the interest of justice. R. at 4. The State also successfully admitted Ms. Cohen s pre-sentencing evaluation of Mason from his first conviction R. at 4. Mason s attorney objected to the admission of that record as hearsay, but the court allowed it under both the public record and business record exception. R. at 4. The defense attorney never made any constitutional objections to the evidence. R. at 4. Mason s therapist, Mr. Barker testified as a lay witness to recount Mason s confession in therapy. R. at 4. The defense did not object. R. at 4. Neither party called Mason s sister, the victim, to the stand, but both parties admitted transcripts from her forensic interviews. R. at 4. The State admitted her first interview, in which she incriminated Mason. R. at 4. The defense admitted her second interview, in which she recanted the first, as impeachment evidence. R. at 4. The Court of Appeals of West Carolina. Mason appealed his conviction to the West Carolina Supreme Court. R. at 5. The court heard the case on September 10, 2012 and issued the resulting opinion on January 23, R. at 1. The court of appeals found no error in any of the three issues that Mason asserted on appeal and affirmed Mason s conviction. R. at 12. In regard to each of Mason s contended grounds for reversal, the court held that: 1) Mason s confession 4

14 was not compelled, he waived his Fifth Amendment rights, and he was never in custody under Miranda; 2) Ms. Cohen s report was not made for the purposes of prosecution and, thus, did not implicate the Confrontation Clause; and 3) Mason s counsel was not ineffective for failing to assert constitutional objections because that failure did not overcome the presumption of reasonable conduct. R. at The Supreme Court of West Carolina. Mason appealed again to the West Carolina Supreme Court. R. at 13. The court heard the case on September 25, 2014 and issued the resulting opinion on July 13, R. at 13. The court reversed the lower court of appeals and vacated Mason s conviction. In doing so, the court held that: 1) Mason s Fifth Amendment rights were violated when he was compelled to testify under threat of an increased sentence and when he was not read his Miranda rights before his therapy session, which constituted a custodial interrogation; 2) his Sixth Amendment right to confront his accusers was violated when Ms. Cohen s testimonial report was admitted without her available to testify; 3) Mason s Sixth Amendment right to effective counsel was violated when his attorney failed to assert any constitutional objections to the evidence which prejudiced the jury against him. R. at Concurrence and Dissent. Judge Malhoit wrote a separate opinion concurring with the majority s holding that the states threat of an increase sentence compelled Mason to confess, but dissenting from the rest of the court s holdings. R. at SUMMARY OF THE ARGUMENT I. Both voluntary confessions and the need to protect the Fifth Amendment right against selfincrimination are important aspects of the criminal justice system. Finding the appropriate 5

15 balance between the two is essential to ensuring the system serves its function. In this case, that balance tips in favor of the State s need to admit Mason s voluntary confession. A confession does not require the protection the Fifth Amendment if it is not testimonial, incriminating, or compelled. Mason s confession to the sexual assault of his sister was undoubtedly incriminating and likely testimonial. The matter of contention before this Court regarding the confession is whether it was coercively compelled. No act by the State or any of its agents could have compelled Mason to incriminate himself. In exchange for a reduced sentence, Mason agreed to complete an SOM program and understood that his failure to do so could result in an extension of his sentence. When Mason did fail to complete the program, he was merely reminded of the State s ability to extend his sentence should he continue to refuse to participate. Mason was also not entitled to Miranda rights prior to the therapy session in which he confessed. He was never in custody during therapy because he was free to attend or not, as evidenced by his conscious refusal to attend and participate in several sessions. Additionally, Mason waived his Fifth Amendment rights by failing to assert them prior to his confession. II. Mason s assertion of the Sixth Amendment Confrontation Clause fails as well. The Confrontation Clause concerns only testimonial statements. This standard is much higher than the testimonial statement test under the Fifth Amendment. Because the Confrontation Clause provides a right to face one s accusers, an accusation is required for a statement to be testimonial. In other words, a statement must be made for the purpose of a future prosecution to implicate the right. In this case, Ms. Cohen s statements are not testimonial under the Confrontation Clause. Police interrogations are the primary concern of the Clause, and Cohen was only a psychiatry 6

16 student acting on behalf of the State. Likewise, her report was not made with any future prosecution in mind; she was only charged with providing a mental diagnosis of Mason for the purposes of his sentencing. Therefore, her report cannot be properly excluded under the Confrontation Clause. III. Mason s third claim of ineffective assistance of counsel fatally suffers from the strong presumption favoring the reasonableness of his attorney s conduct. There is a two-part test for determining whether a defense attorney s conduct was so unreasonable to be deemed ineffective: 1) the attorney s conduct, by act or omission, must be so unreasonable as to fall outside of the wide range of competent, professional representation; and 2) the attorney s conduct must materially prejudice the defendant such that there is a reasonable probability that the outcome of the case would have changed but for the alleged conduct. Mason cannot overcome the strong presumption favoring his counsel and, thereby, the State. His counsel did object to the admission of his confession and Ms. Cohen s report under statutory grounds. She was not required to object on all possible grounds to provide effective representation. He is also not able to establish that a failure to object on constitutional grounds prejudiced him enough to change the outcome of the case. With the victim s statement and Mr. Barker s testimony admitted without objection, there was enough evidence absent the report and confession for a jury to convict Mason. 7

17 ARGUMENT AND AUTHORITIES I. RESPONDENT SHOULD NOT ESCAPE RESPONSIBILITY FOR SEXUALLY ASSAULTING A CHILD UNDER HIS SELF-INCRIMINATION CHALLENGE BECAUSE HE VOLUNTARILY CONFESSED TO THE CRIME. Our criminal justice system exists to sift out and punish those who commit reprehensible acts against society. Often this is a lengthy and expensive process; criminals will seek every opportunity to evade punishment and deny responsibility for their crimes. But not every criminal is so remorseless as to hide from the law; some are willing to admit to their wrongs and accept their penalty. As a result, voluntary confessions are a cornerstone of this country s jurisprudence, and this Court has recognized the important role that voluntary confessions play in criminal cases. Maryland v. Shatzer, 559 U.S. 98, 101 (2010). Proper confessions ensure an efficient trial: wherever possible, courts should encourage them through commendation and reduced criminal penalties. It is only when a confession is somehow coercively compelled that it becomes involuntary, requiring constitutional protection. 1 Hiibel v. Sixth Judicial Dist. Court of Nev., 542 U.S. 177, 189 (2004). In Hiibel, this Court recognized three factors for determining whether a confession requires Fifth Amendment protection: It must be testimonial, incriminating, and compelled. Id. Mason s confession was no doubt incriminating. R. at 3. Although it is not clear from the record, his confession was probably also testimonial because, unlike the test under the Sixth Amendment, that standard is very low under the Fifth Amendment. See Doe v. United States, 487 U.S. 201, 210 (1988) (holding that a statement need only relate a factual assertion to be testimonial under the Fifth Amendment). 1 The Fifth Amendment right against self-incrimination is incorporated against the States through the Fourteenth Amendment. Malloy v. Hogan, 378 U.S. 1, 8 (1964) (citing U.S. Const. amend. XIV)). 8

18 But Mason s statement was not compelled, despite his allegations to the contrary, because nothing from the record, including his therapist s advice regarding his sentence, could have coerced him to confess. R. at 3. He was also not entitled to Miranda rights because his therapy session was voluntary and could not have been a custodial interrogation. R. at 3. A. Respondent s Confession Was Not Compulsory Because the Suggestion That His Prison Sentence Could Be Extended if He Did Not Comply Was Not Coercive. At the heart of the Fifth Amendment right against self-incrimination is a right to choose whether or not to freely admit to one s own crimes. Patterson v. Illinois, 487 U.S. 285, 291 (1988). It is only when a defendant s confession is elicited through coercive means that the right is implicated. Hiibel, 242 U.S. at 189. One way to coerce a confession is by the threat of substantial penalties. Lefkowitz v. Cunningham, 431 U.S. 801, 806 (1977). This Court considered the extent of the penalty doctrine in Mckune v. Lile. 536 U.S. 24, 27 (2002) (plurality opinion). The defendant in Mckune refused to submit to a therapeutic polygraph session discussing his sexual history. Id. at 30. Only after the prison administration threatened to revoke his visitation rights and other privileges did the defendant comply and incriminate himself. Id. Such a threat was not sufficient to show coercion because prisoners expect to relinquish many of their liberties by virtue of their incarceration. Id. at 36 ( A broad range of choices that may infringe constitutional rights in a free society fall within the expected conditions of confinement. ). In the present case, one of Mason s conditions of confinement that he agreed to was the prison s ability to extend his sentence by up to two years if he failed to complete his courtordered therapy program. R. at 2. The lower court suggests that the therapist s indication that Mason might face a longer prison sentence if he failed to comply with the program was a 9

19 classic penalty situation that coerced him to confess. R. at 16. However, Mason understood that fact because he freely agreed to those terms as part of his plea agreement. R. at 2. The lower court also emphasizes the fact that Mason wasn t aware of the details of the court-ordered program, and he might not have agreed to those terms had he been informed of the therapeutic polygraph requirement. R. at 14. These arguments by the lower court contradict each other. Either Mason was so afraid of extending his sentence that he would do anything, even incriminate himself, to comply with the program, or Mason was so averse to polygraphs regarding his sexual history that he would refuse a reduced prison sentence to avoid them it cannot be both. Regardless of which scenario applies to Mason, the logical result is the same: He made a discerning, rational choice to comply with the therapeutic polygraph and risk incriminating himself in further crimes. R. at 3. This Court considered the merits of a voluntary confession in Minnesota v. Murphy. 465 U.S. 420, 429 (1984). In Murphy the defendant confessed to a prior rape during his courtordered, sexual offender therapy, his completion of which was a stipulation of his parole. Id. at When the defendant missed several therapy sessions, his parole officer informed him that failure to set up a parole meeting would result in an immediate request for a warrant. Id. at 423. During that meeting, the defendant confessed his prior rape and murder crimes to the officer. Id. This Court ruled that the defendant s confession was voluntary. Id. at 429. In reaching the Court s holding, Justice White emphasized that the defendant s general obligation to appear and answer truthfully did not itself convert [his] otherwise voluntary statements into compelled ones. Id. at 427. Similarly, the defendant s perception of the officer s statements that his probation would be revoked if he did not divulge his crimes was not enough to self-execute the Fifth Amendment privilege without affirmatively asserting the right. Id. at

20 In the present case, Mason s therapist never threatened to extend Mason s prison sentence; he only informed Mason what he already knew, that failure to comply with the SOM requirements gave the detention center administration the discretion to extend his sentence. R. at 3. Like the officer s reminder of the defendant s parole requirements in Murphy, the therapist s statements in were not enough to self-execute Mason s Fifth Amendment right. He could have and should have asserted that right prior to his confession; his failure to do so relinquished the right. R. at 3; see also Commonwealth v. Knoble, 42 A.3d 976, 983 (Pa. 2012) ( A [defendant] who agrees to submit to such an exam... may raise his Fifth Amendment privilege prior to submitting to the examination or when answering polygraph questions regarding uncharged criminal actions. ). Mason understood his Fifth Amendment right to remain silent. He was undoubtedly read his Miranda rights when he was arrested and charged with the first sexual assault of his cousin. R. at 2. Furthermore, he asserted that right several times when he refused to freely admit to the second sexual assault several times in group therapy before agreeing to confess in his last therapy session. R. at 3. He rightly could have but did not refuse to answer the questions that ultimately led to his confession. R. at 3. Therefore, like the defendant in Murphy, Mason s confession was voluntary because he failed to assert his Fifth Amendment right during his therapy questioning. R. at 3. The lower court emphasized Mason s age as an important factor in determining that he could not have reasonably appreciated the consequences of his confession. R. at In doing so, the court relied on this Court s decision in J.D.B. v. North Carolina. R. at 15. J.D.B. involved a thirteen-year-old boy who incriminated himself after being interrogated by police in an isolated classroom during school. 564 U.S. 261, 277 (2011). J.D.B. stands for the rule that age should be 11

21 a factor in a Miranda custody analysis, yet the lower court applied it as a factor in their analysis of waiver. Id.; R. at 14. Nevertheless, Justice Sotomayor, writing for the majority, clarified that the analysis considers a reasonable person under similar circumstances. J.D.B., 564 U.S. at 279. Mason was not like an average reasonable fourteen-year-old when he confessed. He had already been incarcerated for nearly two years and had experienced the inter-workings of the judicial system first hand. R. at 2 3. Likewise, he had been represented by counsel, whom he undoubtedly conferred with more than once to discuss the details of his plea agreement and his sentence. R. at 2. His experiences with the court system gave him a better understanding of his rights than the average fourteen-year-old. The lower court also presumed that Mason only responded to questions about his sexual history in response to the suggestion that failing to so could extend his sentence. R. at 15. But the State offers another explanation. Therapeutic polygraphs are commonly used when rehabilitating sexual offenders. 2 Not only do they ensure that patients are more forthcoming about whether they are regressing, they also provide a cathartic release when patients can finally admit to their undisclosed wrongs. Commonwealth v. Schrawder, 940 A.2d 436, 443 (Pa. Super. Ct. 2007). The Pennsylvania Supreme Court, which is often faced with contemplating the merits of therapeutic polygraphs, has stated that such practices do not inherently defy the Fifth Amendment right against self-incrimination. Knoble, 42 A.3d at 983. Mason initially refused to answer questions about his sexual history in group therapy. R. at 3. He was likely embarrassed and ashamed to admit his crimes before his peers. He continued to deny his additional crimes to remain consistent. Mason could have chosen to finally divulge his 2 Pennsylvania, Colorado, Maryland, Montana, and Indiana all use therapeutic polygraphs as part of their SOM programs. See Knoble, 42 A.3d at 983; People ex rel. M.M., 215 P.3d 1237, 1241 (Colo. App. 2009); Russel v. State, 109 A.3d 1249, 1258 (Md. Ct. Spec. App. 2015); State v. Smart, 201 P.3d 123, 125 (Mont. 2009); A.C. v. Ind. Dep t of Child Servs., 17 N.E.3d 299, 302 (Ind. Ct. App. 2014). 12

22 second sexual assault to finally release the weight of his guilt. He had freely admitted to his first crime without the need for a trial. R. at 2. It isn t hard to believe that he desired that same catharsis when he admitted to his second crime in therapy. R. at 3. In this same vein, Mason may claim that he was deceived by the State because he believed his statements in therapy would be privileged. However, most states do not recognize such a privilege when a patient confesses a felonious crime to their therapist; in fact, it would be a crime in most states to withhold such information from the authorities. See Paul S. Appelbaum & Alan Meisel, Therapists Obligations to Report Their Patients Criminal Acts, 14 Bull. Am. Acad. Psychiatry L. 221, 224 (1986) (mentioning that virtually all states have some form of reporting statute that requires disclosure of their patients criminal acts). West Carolina itself has such a statute. R. at 16. Furthermore, no state recognizes personal mistake of law as a defense to a criminal act. Jeffery F. Ghent, Criminal Law: Official Statement Mistake of Law Defense, 89 A.L.R.4th 1026, 1027 (1991). No matter what Mason may have believed, his beliefs regarding the law are not a valid defense to his crime. B. Respondent Was Not Entitled to a Miranda Warning Because the Therapy Session in Which He Confessed Was Not a Custodial Interrogation. Mason has asserted that he should have been warned of his Fifth Amendment rights before the therapy session that resulted in his confession. R. at 8. This Court announced in Miranda v. Arizona that a criminal suspect must be warned of his Fifth Amendment right to remain silent before being subjected to an in-custody interrogation. 384 U.S. 436, 476 (1966). Miranda was the result several cases appealed to this Court, all of which involved suspects being arrested and formally interrogated by police officers without regard for the suspects understanding that the Fifth Amendment gave them the choice to refuse to comply. Id. at The inherently 13

23 coercive atmosphere of police interrogations was crucial to the holding that such instances require a formal warning of a defendant s Fifth Amendment Rights. Id. at Since Miranda, several courts, including this Court, have sought to define the limits of what constitutes a custodial interrogation. See Stansbury v. California, 511 U.S. 318, 322 (1994) (per curiam) (determining that custody could involve any formal arrest or a restriction of movement akin to a formal arrest); United States v. Mittel-Carey, 493 F.3d 36, (1st Cir. 2007) (holding that eight officers coercively questioning a suspect in a darkened bedroom with unholstered guns for hours without being allowed to leave was a custodial interrogation); Murray v. Earle, 405 F.3d 278, 287 (5th Cir. 2005) (holding that the police questioning of a child at a children s home which she had been removed to and told that she was not free to leave was a custodial interrogation). Custody requires a formal arrest or a restriction of movement such that it would be akin to a formal arrest. Stansbury, 511 U.S. at 322 (quoting California v. Beheler, 463 U.S. 1121, 1125 (1983) (plurality opinion)). This Court has suggested that the mere fact of incarceration does not, itself, typically establish custody. See Shatzer, 559 U.S. at ( [L]awful imprisonment imposed upon conviction of a crime does not create the coercive pressures identified in Miranda. ). However, this Court has also noted in Howes v. Fields, that there is no bright-line rule for determining the applicability of Miranda in prisons. 132 S. Ct. 1181, 1187 (2012). Thus, it has been left to other federal and state courts to determine when and how an incarcerated inmate can establish custody under Miranda. Although he was incarcerated, the defendant in United States v. Menzer was held not to be in custody when he voluntarily attended interviews with police officer. 29 F.3d 1223, (7th Cir. 1994). In Menzer, the Seventh Circuit Court ruled under a totality of the circumstances 14

24 analysis that the defendant was not in custody during the interviews because they took place in a well-lit, unlocked room and he was told repeatedly that he could leave at any time. Id. The court analyzed this Court s decision in Mathis v. United States, where an inmate s Miranda rights were held to be violated when he produced self-incriminating documents in response to questioning without being read his rights. Id. at 1231 (interpreting Mathis v. United States, 391 U.S. 1, 4 (1968)). Mathis stands only for the principal that a person does not need to be in custody for the crime they are being investigated for. 391 U.S. at 4. As this Court noted in Howes, there has never been a rule that establishes incarceration alone as grounds for custody. 132 S. Ct. at Ultimately, the court ruled in Menzer that the defendant was not in custody under Miranda because his movement was not restricted beyond that inherent in his incarceration. 29 F.3d at In a case similar to Menzer, the Fourth Circuit Court determined that inmates who were investigated regarding a prison altercation were not in custody by virtue of their confinement alone. United States v. Cooper, 800 F.2d 412, (4th Cir. 1986). The court declined to extend Mathis to all incarcerated inmates. Id. Instead, the court emphasized that the defendant was not in custody under Miranda because his freedom of movement was not restricted beyond his incarceration: he was not in handcuffs during questioning, and the interviews took place away from his cell in a less restricted area of the prison. Id. Many other courts have made the similar determination that incarceration alone cannot establish custody. 3 When courts have found custody in a prison case, they have done so when the 3 The Second, Eighth, Ninth, and Eleventh Circuits have all held that incarceration alone is not enough for custody under Miranda. See United States v. Willoughby, 860 F.2d 15, (2d Cir. 1988) (holding that an inmate was not in custody when he initiated a conversation with a police informant and voluntarily made incriminating statements without provocation); Levingston v. Black, 843 F.2d 302, 303 (8th Cir. 1988) (holding that the inmate defendant was not in custody when he voluntarily attended interviews with a police officer away from his cell); United States v. Turner, 28 F.3d 981, (9th Cir. 1994) 15

25 circumstances are comparable to a formal police interrogation. See United States v. Chamberlain, 163 F.3d 499, (8th Cir. 1998). In Chamberlain, the defendant inmate was interviewed in a secured area of the prison where no other inmates were allowed. Id. The defendant was summoned to the interviews by several police officers who dominated the questioning. Id. Furthermore, the defendant was never given the inclination that he could choose not to cooperate with the interviews. Id. The present case is a far cry from Chamberlain. Mason had the opportunity not to cooperate with the therapy questioning; he did so several times. R. at 3. Additionally, the therapy sessions could not have taken place in a more secure area of the prison because there were often other inmates present at the sessions. R. at 3. Finally, the record implies that the therapist Baker asked Mason the questions during his sessions, and makes no indication that police officers or guards were present. R. at 3. Mason s therapy sessions were more like the interviews in Menzer and Cooper. He was free to choose whether or not to cooperate in the sessions and the record bears no indication that he was physically restrained or forced to attend them. R. at 3. Absent some greater form of physical restraint beyond his incarceration, Mason s therapy sessions should not be custodial under Miranda. The lower court determined that Mason was in custody during his therapy session solely on the basis of his incarceration. R. at 18. In doing so, the court determined that this Court s reluctance to create a bright-line rule establishing when an incarcerated individual should be treated as being in custody should be construed narrowly. Id. Allowing incarceration itself to be the sole basis of custody brings about the absurd result of allowing prisoners more Fifth (holding that an inmate was not in custody when he responded to a detective s questions over the phone); United States v. Grimes, 142 F.3d 1342, 1349 (11th Cir. 1998) (holding that an inmate was not in custody when he voluntarily accompanied officers to an undercover interview away from the prison). 16

26 Amendment protection than other citizens. See Cervantes v. Walker, 489 F.2d 424, 427 (9th Cir. 1978) (refusing to hold that every investigation within a prison implicated Miranda rights). As the court stated in Cervantes, such a result would undermine prison administration by delaying and inhibiting the questioning of incarcerated suspects when police are free to informally question suspects and witnesses without implicating their Miranda rights. Id. In holding that Mason s incarceration was sufficient to establish custody the lower court conceded that his movement was not restricted beyond his inherent incarceration and the nature of his sentence. R. at 18. Mason was not in custody when he confessed in his therapy session because he was free to leave the session or not attend at all. R. at 3. His choice to attend or not is established by the fact that he refused to attend and participate in his polygraph therapy over the course of his sentence. R. at 3. Mason s sentence also contemplated an increased incarceration term in the event that he chose not to cooperate with the court-ordered therapy. R. at 2. Because Mason had a choice of whether to attend his therapy sessions and cooperate, the therapy questioning did not entitle him to Miranda rights. C. Confessions Are Crucial to Sexual Assault Investigations Because Victims Are Reluctant to Testify, and Releasing Guilty Criminals Implicates the Safety of Those Innocent Victims. Sexual assault cases are often very difficult to prove. They are so difficult to prove, that they are granted special exceptions for providing proof in federal court. Fed. R. Evid. 413, 414 (allowing evidence of past crimes to show propensity in sexual assault and molestation cases, evidence which would be prohibited in other instances). Even in the present case, Mason s mother was investigated for sexual assault multiple times but never formally charged. R. at 2. Victims of sexual assault are often reluctant to testify, and there is often very little direct evidence in a sexual assault case because those crimes often go unreported. Catherine Richmond 17

27 & Melissa Richmond, The Future of Sex Offense Courts: How Expanding Specialized Sex Offense Courts Can Help Reduce Recidivism, 21 Cardozo J.L. & Gender 433, 454 (2015) (stating that seventy-four percent of sexual assaults go unreported and only ten percent lead to an arrest). As a result, the questioning of suspects meant to elicit incriminating testimony is crucial to sexual assault investigations. Id. This is especially true for cases involving minor victims, like the present one. R. at 4; Richmond & Richmond, supra, at 457. Prosecutors are put in a difficult position when they must call a child to the stand and ask them to relive their traumatizing abuse. Id. at 455. In the present case, Mason s sister originally corroborated his guilt but later retracted her statements. R. at 4. She may have been ashamed or embarrassed, or she may have been afraid of her brother or sympathized with him. See Richmond & Richmond, supra, at 455 (stating these as reasons why victims may be reluctant to testify against their attackers). In this case, because the State was allowed to rely on Mason s confession, they did not need to call the victim to the stand. R. at 4. Had the confession been disallowed from the start, the State may have been forced to call his sister and forced to make her relive her abuse to confirm her earlier statements. R. at 4. This case is undoubtedly a sad one. A likely victim of intrafamilial sexual abuse himself, Mason deserves sympathy. But this case cannot be considered in the vacuum of its own circumstances. It must be considered with regard to the affect it will have on similar cases across the country, and the further affect it will have on the victims in those cases. Several states currently employ court-ordered therapy programs similar to the Sexual Offender Management program used in this case. 4 Likewise, confessions obtained through such programs have been used to convict other sexual offenders. E.g., Knoble, 42 A.3d at 983. Should this Court uphold 4 See supra note 1. 18

28 the reversal of Mason s conviction, inmates who confessed to their crimes under similar circumstances will find a new avenue for early release. Not all of them deserve the same sympathy as Mason. Instead of remaining in prison to atone for their crimes and complete their court-ordered rehabilitative therapy, they will be free to live and work anywhere, without being listed in a sexual offender registry. See George L. Blum, Removal of Adults from State Sex Offender Registries, 77 A.L.R.6th 197, 198 (2012) (stating that only convicted sex offenders with qualifying conviction are required to register with local authorities upon release). Furthermore, without the benefit of rehabilitative treatment, sexual offenders are nearly twice as likely to reoffend. 5 Therefore, not only are there likely to be more innocent victims when a sex offender is released without completing their rehabilitation program, but previous victims could become repeat targets of their prior assailants. This case must also be considered for the affect it will have on the victims of those sexual crimes. As much sympathy as Mason may garner from this Court, his sister, the only truly innocent party, deserves much more. Studies have shown that thirty percent child molesters will be charged with a similar crime within ten years of their release for their first offense. Keith Soothill, Sex Offender Recidivism, 39 Crime & Just. 145, 157 (2010). Other studies have found that sexual criminals are more likely to reoffend when they are released at younger ages. Id. at 164. Considering the high amount of sexual crimes that go unreported, these numbers are probably under estimated. See Richmond & Richmond, supra, at These alarming trends are particularly important in a case like Mason s. Although he is eighteen now, had Mason been released without confessing his crimes, he would still have been a minor and would have been released back into his home with his sister. R. at 2. Releasing her attacker back into her home or 5 See Richmond & Richmond, supra, at 457 (stating that about seventeen percent of sex offenders reoffend when untreated, while less than ten percent reoffend when they are treated). 19

29 even her community jeopardizes her peace of mind and, more importantly, her safety. Thus, confessed sexual offenders, like Mason, who have not served their designated sentence or completed a rehabilitation program should not be granted the benefit of early release except in the most extreme circumstances. II. THE SIXTH AMENDMENT CONFRONTATION CLAUSE CANNOT EXCLUDE MS. COHEN S EVALUATION BECAUSE IT WAS NOT A TESTIMONIAL STATEMENT. Although the Sixth Amendment grants the right to confront and cross examine one s accusers, it is not an unmitigated right. 6 U.S. Const. amend. VI. The federal rules of evidence promulgated by this Court envision situations where evidentiary statements can be admitted, even when the subscribing witness is not available for testimony. Fed. R. Evid This case is not bound by the Federal Rules of Evidence, but the existence of such rules establishes that a witness absence from the courtroom does not automatically preclude their statements from admittance. In Crawford v. Washington, this Court announced the rule that out-of-court, hearsay statements must meet two criteria to survive a Sixth Amendment Confrontation Clause challenge: 1) the statement must establish its admissibility under a valid hearsay exception; and 2) the statement must not be testimonial in nature. 541 U.S. 36, 61 (2004). Under Crawford, a testimonial statement is one that the declaring witness would reasonably expect to be used in a prosecutorial trial. Id. at 51 (quoting Brief for Petitioner at 23, Crawford v. Washington, 541 U.S. 36 (2004) (No )). Mason does not dispute that Ms. Cohen s statements were properly admissible under West Carolina hearsay law. R. at 4. Instead, Mason suggests the Ms. Cohen s unavailability as a 6 The Sixth Amendment right to face one s accusers is incorporated against the States through the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 403 (1965) (citing U.S. Const. amend. XIV)). 20

30 witness should prevent the admissibility of her evaluation against him under the Confrontation Clause. R. at 19. But, as stated in Crawford, only testimonial statements are implicated by the Confrontation Clause. Ms. Cohen s evaluation cannot be testimonial because it was not developed for the primary purpose of prosecuting Mason s guilt in any crime. R. at 2. A. Ms. Cohen s Evaluation Was Not Testimonial Because It Was Not Developed for the Primary Purpose of Prosecuting Respondent. As the lower court correctly stated, the primary purpose doctrine is the principal test for determining whether a statement is testimonial and, thus, violates the Confrontation Clause. R. at 21. This Court advanced the doctrine in Davis v. Washington, determining that the primary purpose of the investigation that lead to the statements decided whether the Confrontation Clause was implicated. 547 U.S. 813, 822 (2006). Under Davis, if an investigation and its responses are made in connection with an ongoing emergency, the statements are nontestimonial and not subject to Confrontation Clause objections; on the other hand, investigations with the primary purpose of prov[ing] past events potentially relevant to later criminal prosecutions are testimonial and are subject to Confrontation Clause objections. Id. (emphasis added). In the present case, the primary purpose of Ms. Cohen s evaluation of Mason was to develop a psychosexual analysis of his mental state. R. at 2. The evaluation was commissioned to assist the trial court in determining an appropriate sentence for Mason s first sexual assault conviction. R. at 2. A criminal prosecution is a proceeding meant to determine guilt or innocence. Black s Law Dictionary 1416 (10th ed. 2014). A sentencing hearing cannot be a criminal prosecution because guilt must be determined before the sentence can be passed. Mason had already plead guilty when Ms. Cohen evaluated him; it was pre-sentencing psychosexual evaluation stipulated by the prosecution as part of Mason s plea bargain. R. at 2. 21

31 This Court further reiterated that testimony produced for criminal prosecutions is the trust of the Confrontation Clause in Williams v. Illinois. 132 S. Ct. 2221, 2243 (2012) (plurality opinion). In Williams, a DNA report incriminating the defendant did not implicate the Confrontation Clause, even though the preparer of the report was unavailable to testify. Id. at Justice Alito explained that to implicate the Confrontation Clause, a statement must have the primary purpose of accusing a targeted individual of engaging in criminal conduct. Id. at 2243 (emphasis added). Ms. Cohen s report did not accuse Mason of anything; it merely diagnosed him with a pedophiliac mental disorder suffering from posttraumatic stress. R. at 2. If the report accused anyone, it accused Mason s mother of sexual abuse. R. at 2. Thus, Ms. Cohen s report cannot be testimonial because it was not developed for the primary purpose of prosecuting Mason. The lower court based its conclusion that Ms. Cohen s report did implicate the Confrontation Clause on the fact that her evaluation was not conducted in connection with an ongoing emergency. R. at 21. In Davis, this Court emphasized that the statements of a victim to a 911 operator because they were made during and directly after her attack; thus, her emergency was ongoing. 547 U.S. at 822. But since Davis, this Court has found that connection to an ongoing emergency is not required for a statement to be nontestimonial. Michigan v. Bryant, 562 U.S. 344, 358 (2011); Ohio v. Clarke, 135 S. Ct. 2173, 2180 (2015). The lack of an ongoing emergency during Ms. Cohen s evaluation of Mason is not sufficient grounds to keep the resulting report out of court. Bryant, 562 U.S. at 374 ( [T]he existence vel non of an ongoing emergency is not the touchstone of the testimonial inquiry. ) (emphasis retained). Another factor crucial to the lower court s Confrontation Clause analysis was the fact that Ms. Cohen was acting at the State s request and under the supervision of Dr. Knowles, a state 22