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It is permissible for police to lie to and deceive a cognitively and socially challenged man in circumstances deliberately designed to ensure he was not entitled to a lawyer during questioning, a State Court of Appeals panel has ruled.

Lying and trickery are tactics “common in law enforcement interviews of criminal suspects,” Appeals Judge Mark D. Gundrum wrote in the decision, which was joined by Appeals Judge Lisa S. Neubauer.

“Were we to follow (defendant John) Finley‘s apparent suggestion that law enforcement should be limited to simply accepting a criminal suspect’s first-response denial to a one-time asked, open-ended question of ‘Did you sexually assault your niece?’ law enforcement may as well simply be precluded from questioning suspects altogether,” Gundrum said.

Appeals Judge Paul F. Reilly, in an angry dissent, called the police tactics “coercive and improper.”

“Being a judge is a noble position,” Reilly wrote. “Being a law enforcement officer is a noble profession. There is something ignoble, however, in charging a person with a crime if that person lies, cheats, or fabricates statements or evidence to the government during an investigation, but if a law enforcement officer does the same, we consider the confession reliable. In life, we do not trust a liar or a deceiver, yet we are imposing that character trait upon our police. Having authorized dishonesty, we must be prepared to accept dishonest results.”

Finley, now 41, was convicted of sexually assaulting his nine-year-old niece, identified as C.P. in court records, by touching her breasts and vagina under her clothes. Walworth County Circuit Judge’s Kristine E. Drettwan in November 2016 sentenced Finley to 20 years in prison and 10 years of extended supervision.

While Whitewater police were investigating the matter, the girl’s mother, who is Finley’s sister, said that C.P. had autism and an attention deficit/hyperactivity disorder and that she was affectionate and liked to hug people.

C.P.’s mother also told Police Officer Saul Valadez that Finley “has the mental capacity of a 12- year-old” and “socially functions at a first-grade level.” A doctor who evaluated Finley found he had an IQ of 72, not disabling but lower than 97 percent of the population.

During his questioning, police got Finley to admit to putting his finger in C.P.’s vagina – something the girl never said he did.

C.P. made her allegations against her uncle to her therapist, whom she was seeing for behavioral problems and sensory issues, according to a defense brief by attorney Ellen Henak.

The day C.P. made the allegations, she heard her mother tell the therapist that C.P. got angry with Finley when he wanted to play with her. The therapist then read to C.P. a book called “How to Keep Yourself Safe” and asked if anyone had touched her inappropriately. C.P. said her uncle did.

Valadez testified that he believed the girl, Reilly noted in his dissent.

“He agreed that he was not going to interview ‘Mr. Finley for the truth, (he was) going to get a confession,’ ” Reilly wrote.

Valadez wanted to avoid arresting Finley until after Finley had made a statement because an arrest would entail giving Finley his Miranda rights and that “‘might be an impediment to getting a confession,'” Reilly wrote. “Valadez also did not want Finley to have an attorney as he knew he probably would not get a confession if Finley had a lawyer.”

Gundrum, in a footnote, acknowledged that a clinical and forensic psychologist testified that Finley has a “’variety of cognitive and personality characteristics that make him far more compliant and far more suggestible than the normal individual of his age.’ ”

Finley denied C.P.’s allegations at least three times before saying he put his finger in her vagina, Reilly wrote. Despite knowing of Finley’s intellectual limitations, Valadez and Officer Adam Vander Steeg used the “Reid Technique” of interrogation that depends on minimizing an offense and directing blame elsewhere in order to justify or excuse the crime in the suspect’s mind.

The officers repeatedly suggested to Finley that he touched his niece “accidentally.”

“Officers used the term ‘accident’ or ‘accidentally’ at least thirty-five times in trying to get Finley to say he touched C.P.’s vagina,” Reilly said.

The officers lied and said that C.P. alleged that Finley put his finger in her vagina.

“Vander Steeg admitted that he knew that C.P. had not alleged that Finely inserted his finger in her vagina….Vander Steeg explained that he lied because an accidental touch is not a sexual assault, but if Finley admitted to putting a finger inside her vagina, then it is harder to call that an accident,” Reilly wrote.

Gundrum, in the majority opinion wrote, “There is nothing untoward with the officers’ tactics here, and despite Finley’s complaints, he cites no controlling law that the tactics were improper.”

Gundrum upheld Drettwan’s decision rejecting Finley’s contention that his statements were involuntary because they were coerced.

In this case, he said, the officers gave Finley the opportunity to end the interview but he did not do so.

“The interview was conversational, it did not last for an excessive length of time, it took place in the security of his own apartment with his mother present in the apartment at all times, and the officers even made sure to get him water when he indicated he was thirsty,” Gundrum wrote. “While Finley’s intellectual capacity certainly is a significant consideration, it is not dispositive.”

Reilly saw things differently.

“Finley is not a common man; he is a boy with a man’s age, and ‘the pressures created by the police conduct exceeded [Finley’s] ability to resist,’ ” he wrote, quoting a State Supreme Court precedent.

“The police (because we have said they can do so) utilized deception, manipulation, threats, and outright lies after Finley repeatedly denied sexually assaulting his niece,” Reilly said. “They did so purposely in a noncustodial interview to deny Finley his Miranda warnings and to prevent him from having a lawyer. The police tactics used against Finley were coercive and improper, and I would find his confession to be involuntary.”

Gretchen Schuldt writes a blog for Wisconsin Justice Initiative, whose mission is “To improve the quality of justice in Wisconsin by educating the public about legal issues and encouraging civic engagement in and debate about the judicial system and its operation.