Tuesday, October 21, 2008

Synopsis of 'State v. Ward'

The Wisconsin Supreme Court on September 12, 2008 granted the petition to review the Court of Appeals decision in this case (2007AP79-CR), see Review granted in 'State v. Ward'.
The Court of Appeals' affirmed Jennifer Ward’s conviction for first-degree reckless homicide. The state's theory was that Jennifer Ward had shaken her infant nephew, causing a subdural hemotoma, which had ultimately led to his death. Her petition for review lists the two issues:
7) Are incriminating statements made after an arrestee is held incommunicado while being subject to deceitful interrogation tactics involuntary and inadmissible?
8) Is a waiver of counsel involuntary when it is made after an arrestee is held incommunicado and is told she cannot use the telephone during an overnight break in the interrogation?

Some background: Somewhere around 5 a.m. on Dec. 1, 2004, Jennifer called her husband, Joe, who was a truck driver and was sleeping at the time in Bloomington, IL. Jennifer had been babysitting her infant nephew, Thomas Ward, for several days. Jennifer was greatly upset and explained to Joe that Thomas had stopped breathing. Joe instructed Jennifer to contact a first responder who lived across the street. When the neighbor, Dawn Conley, came to Jennifer's house, Jennifer told her that Thomas had been throwing up and had stopped breathing. Conley performed CPR on Thomas until EMTs arrived to transport Thomas to the hospital. Shortly thereafter, Thomas died.

Conley was told of Thomas' death and relayed this information to Jennifer. At that point Jennifer became greatly agitated and blacked out. A deputy who had come to the Ward residence stated that Jennifer became non-responsive and appeared to have a seizure. A second ambulance transported Jennifer to the hospital, and Jennifer's own two children were taken there as well.

During initial questioning at the hospital, Jennifer denied having any knowledge as to the cause of Thomas' death. Detective Glenn Schaepe repeatedly told Jennifer during questioning that she must have caused an injury to Thomas in some way and that she was blocking the memories from her consciousness. Detective Schaepe also told Jennifer that her daughter had seen Jennifer shake Thomas, although he did not explain that the daughter had described Jennifer's shaking of Thomas as an effort to rouse him after he had become unconscious.

Because the police had arranged for a family friend to take Jennifer's children home while she was still in the hospital, Jennifer had no means to get home when discharged from the hospital. Detective Schaepe told Jennifer that he wanted to speak further with her and asked her to come to the sheriff's department. Jennifer agreed to be driven to the sheriff's department. Jennifer's husband and an attorney he had hired for Jennifer arrived shortly after Jennifer reached the sheriff's department, but Detective Schaepe refused to notify Jennifer of their presence. He did inform Jennifer of her Miranda rights and asked if she wanted to speak with an attorney. Although Jennifer asked whether this question meant she needed an attorney, she did not state that she wanted an attorney. The interrogation continued for three more hours until approximately 5:20 p.m.

At the end of the interrogation, Detective Schaepe told Jennifer that she was being taken into custody in connection with the death of Thomas. Jennifer was then taken to the county jail. Detective Schaepe told her that she would not be allowed to make any phone calls until he had completed his interrogation of her the next day. He did not advise her that this prohibition against phone calls did not pertain to calls to an attorney. Detective Schaepe testified that he subsequently informed jail personnel that although Jennifer was not allowed to contact any family members or friends, she could make a telephone call to an attorney. It is not clear whether this was communicated to Jennifer. In any event Jennifer did not speak with anyone during the night. The next morning the attorney retained by Jennifer's husband again attempted to see Jennifer, but was rebuffed. Jennifer was questioned further and made a number of inculpatory statements.

After the criminal action was filed, Jennifer filed a motion to suppress the statements she had made during each of three interviews. She argued that her statements had been involuntary, and that she had not intelligently and knowingly waived her right to the assistance of counsel. The circuit court rejected Jennifer's arguments and concluded that she had knowingly waived her constitutional rights and had voluntarily incriminated herself. The court of appeals agreed and affirmed her conviction.

In addition, to support her claim that this was not a shaken baby case, Jennifer points to expert testimony that some of the bleeding between the infant's brain and skull had occurred long before he died.

Jennifer asks the Supreme Court to review, under the totality of the circumstances, including her isolation from her husband and the attorney he hired and the half-truth about her daughter's statement, whether her statements to police and her waiver of her right to an attorney were knowing and voluntary. From Oneida County.