Petition for Writ of Certiorari — Anthony Casanova, Petitioner v. Michigan

No. 18-_____

IN THE

____________

ANTHONY CASANOVA

Petitioner,

v.

MICHIGAN,

Respondent.

____________

On Petition for a Writ of Certiorari

to the United States Supreme Court

____________

PETITION FOR A WRIT OF CERTIORARI

____________

CHRISTINE A. PAGAC

(Counsel of Record)

STATE APPELLATE DEFENDER OFFICE

645 GRISWOLD, SUITE 3300

Detroit, MI 48226

(313) 256-9833

T ABL E OF CON T EN T S

QUESTI ONS PRESENTED ........................................................................................... i

PARTI ES TO TH E PROCEEDI NG .............................................................................. ii

TABL E OF AUTH ORI TI ES ......................................................................................... iii

REFERENCE TO TH E OPI NI ONS BEL OW ............................................................... v

STATEM ENT OF JURI SDI CTI ON .............................................................................. v

CONSTI TUTI ONAL PROVI SI ONS.............................................................................. v

STATEM ENT OF TH E CASE ....................................................................................... 1

REASONS FOR GRANTI NG TH E PETI TI ON .......................................................... 11

A. Ther e is an acknowledged conflict concer ning t he appr opr iat e t est t o

det er mine t he admissibilit y of st at ement s made aft er midst r eam M i r anda

war nings ............................................................................................................ 14

B. I n t his case, under eit her t est , int er r ogat ing officer ’s t act ic depr ived M r .

Casanova of his Fift h Amendment r ight self-incr iminat ion and his st at ement

should have been suppr essed s. ........................................................................ 19

C. The M ichigan cour t s unr easonably applied t his Cour t ’s pr ecedent in holding

M r . Casanova’s post -war ning st at ement was admissible despit e t he

midst r eam M i r anda war nings. ........................................................................ 23

CONCL USI ON AND REL I EF SOUGH T ................................................................... 26

PETI TI ON APPENDI X I NDEX ..................................................................................... i

PET I T I ON APPEN D I X I N D EX

COURT OF APPEAL S OPI NI ON 2-27-18.......................................................... 1a – 5a

M I CH I GAN SUPREM E COURT ODER DENYI NG L EAVE TO APPEAL 9-12-18 6a

POL I CE I NTERROGATI ON ............................................................................. 7a – 37a

TRI AL COURT ORDER RE: DEFENDANT’S M OTI ON TO SUPPRESS

STATEM ENTS M ADE BY TH E DEFENDANT .............................................. 38a -49a

ORDER OF APPOI NTM ENT.......................................................................... 50a – 51a

QU EST I ON PRESEN T ED

DI D TH E TRI AL COURT’S ADM I SSI ON OF ANTH ONY

CASANOVA’S CUSTODI AL CONFESSI ON DEPRI VE

H I M OF H I S FI FTH AM ENDM ENT RI GH T AGAI NST

COM PEL L ED SEL F-I NCRI M I NATI ON WH ERE TH E

I NTERROGATI NG DETECTI VE QUESTI ONED M R.

CASANOVA FOR M ORE TH AN TWO H OURS,

EL I CI TED I NCRI M I NATI NG STATEM ENTS, TH EN

ADVI SED H I M OF H I S M I RANDA RI GH TS AND

EL I CI TED

TH E

SAM E

I NCRI M I NATI NG

STATEM ENTS?

i

PART I ES

All par t ies appear in t he capt ion of t he case on t he cover page.

ii

T ABL E OF AU T H ORI T I ES

Cases

Ki ng v. Pal mer , 950 F.2d 771 (D.C. Cir . 1991) ........................................................... 18

M i r anda v. Ar i zona, 384 U.S. 436; 86 S.Ct . 1602; 16 L .Ed. 2d 694 (1966) ............... 11

M i ssour i v. Sei ber t, 542 U.S. 600, 124 S. Ct . 2601, 159 L . Ed. 2d 643 (2004) ... passim

Or egon v. Elst ad, 470 U.S. 298, 105 S. Ct . 1285, 84 L . Ed. 2d 222 (1985) ........ passim

Peopl e v Ackl ey, 497 M ich 390 (2015).......................................................................... 25

Peopl e v M ar ks, 430 U.S. 188; 97 S. Ct . 990 (1977).............................................. 23, 24

Uni ted States v. Caper s, 627 F.3d 470 (2nd Cir . 2010) .............................................. 15

Uni ted States v Car r i zal es-Tol edo, 454 F.3d 1142 (2006)……………………………………8, 19

Uni ted States v. Fel l er s, 397 F.3d 1090 (8t h Cir . 2005)………………………………………….16

Uni ted States v H er on, 564 F.3d 879 (7t h Cir . 2009) ........................................... 17, 18

Uni ted States v. M ashbur n, 406 F.3d 303 (4t h Cir . 2005) ......................................... 15

Uni ted States v. Nar anj, 426 F.3d 221 (3r d Cir . 2005) .............................................. 15

Uni ted States v. Ol l i , 442 F.3d 1135 (8t h Cir . 2011) .................................................. 16

Uni ted States v. Ray, 803 F. 3d 244 (2015) ................................................................. 18

Uni ted States v. Rodr i guez-Pr eci ado, 399 F.3d 1118 (9t h Cir . 2005) .................. 16, 18

Uni ted States v. Si ncl ai , 169 Fed.Appx. 919 (5t h Cir . 2006) ..................................... 16

Uni ted States v. Stewar t, 388 F.3d 1079 (7t h Cir . 2004)............................................ 17

Uni ted States v. Str ee, 472 F.3d 1298 (11t h Cir . 2006) .............................................. 16

Uni ted States v. Ver dugo, 617 F.3d 565 (1st Cir . 2010) ............................................. 17

iii

St at ut es

28 U.S.C. § 1257 ............................................................................................................. 5

U.S. Const . amend. V ..................................................................................................... 5

U.S. Const . amend. XI V § 1 ........................................................................................... 5

iv

PET I T I ON F OR A WRI T OF CERT I ORARI

Pet it ioner Ant hony Casanova r espect fully pet it ions t hat a wr it of cer t ior ar i

issue t o r eview t he judgment below. Befor e Pet it ioner Casanova’s t r ial, t he t rial

cour t denied a mot ion t o suppr ess his confession. App. 38a – 39a. The highest st at e

cour t t o r eview t he mer it s was t he M ichigan Cour t of Appeals, which affir med in an

unpublished decision issued Febr uar y 27, 2018. App. 1a-5a. The M ichigan Supr eme

Cour t denied Pet it ioner Casanova’s applicat ion for leave t o appeal in an or der dat ed

Sept ember 12, 2018. App. 6a.

ST AT EM EN T OF JU RI SD I CT I ON

M r . Casanova seeks r eview of t he Sept ember 12, 2018 judgment of t he

M ichigan Supr eme Cour t . App. 6a. 28 U.S.C. § 1257 gr ant s t his Cour t jur isdict ion.

CON ST I T U T I ON AL PROVI SI ON S

U.S. Const . amend. V

No per son shall be held t o answer for a capit al, or ot her wise infamous cr ime,

unless on a pr esent ment or indict ment of a Gr and Jur y, except in cases ar ising in

t he land or naval for ces, or in t he M ilit ia, when in act ual ser vice in t ime of War or

public danger ; nor shall any per son be subject for t he same offence t o be t wice put in

jeopar dy of life or limb; nor shall be compelled in any cr iminal case t o be a wit ness

against himself, nor be depr ived of life, liber t y, or pr oper t y, wit hout due pr ocess of

law; nor shall pr ivat e pr oper t y be t aken for public use, wit hout just compensat ion.

U.S. Const . amend. XI V § 1

v

All per sons bor n or nat ur alized in t he Unit ed St at es, and subject t o t he

jur isdict ion t her eof, ar e cit izens of t he Unit ed St at es and of t he St at e wher ein t hey

r eside. No St at e shall make or enfor ce any law which shall abr idge t he pr ivileges or

immunit ies of cit izens of t he Unit ed St at es; nor shall any St at e depr ive any per son

of life, liber t y, or pr oper t y, wit hout due pr ocess of law; nor deny t o any per son

wit hin it s jur isdict ion t he equal pr ot ect ion of t he laws.

vi

ST AT EM EN T OF T H E CASE

Over vi ew

Wit hin hour s of lear ning t hat his newbor n son had died, Ant hony Casanova

was subject ed t o an int ense, cust odial int er r ogat ion by Det ect ive Nanna, a t went yyear vet er an wit h t he M uskegon Count y Sher iff’s Depar t ment . Det ect ive Nanna did

not r ead M r . Casanova his M i r anda r ight s unt il near ly t hr ee hour s of int er r ogat ion

had passed. Aft er M r . Casanova made incr iminat ing admissions, t he officer advised

M r . Casanova of his M i r anda r ight s, t hen elicit ed t he same incr iminat ing

st at ement s. The pr osecut ion but t r essed t hese admissions wit h cont r over sial medical

t est imony t hat went essent ially unchallenged at t r ial.

Backgr ound

On Oct ober 26, 2012, Ant hony Casanova’s gir lfr iend, Julie St r iker , gave bir t h

t o Tyler , t heir fir st child t oget her . (T 9/24/14, 16) H e and his ex-wife had pr eviously

adopt ed t win daught er s, whom he cont inued t o help r aise. (T 9/24/14, 53) M r .

Casanova had pr eviously been t old he could not have childr en, so he was over joyed

wit h Tyler ’s bir t h. (T 9/24/14, 46)

About t wo mont hs aft er Tyler was bor n, on Januar y 4, 2013, M r . Casanova

began t he day by r ising at 3:30 a.m., t hen wor ked a half-day shift at a shipping

company. (M 4/11/14, 35; T 9/24/14, 26) H e left his shift ear ly due t o his back pain

and fat igue, as he had only slept four hour s t he pr evious night . (T 9/24/14, 49;

9/23/14, 135)

Ar ound 1:15 p.m., M s. St r iker went t o wor k, leaving Tyler wit h Mr .

1

Casanova. (T 9/24/14, 26) When she ar r ived at wor k at 2:50 p.m., M s. St r iker

r eceived a t ext message phot o fr om M r . Casanova of Tyler asleep in his Pack N’

Play. (T 9/24/14/, 30-31)

Ar ound t he same t ime, Tyler began t o cr y, so M r . Casanova went over t o his

Pack N’ Play and picked him up. (T 9/23/14, 163) H e t hen walked over t o t he sliding

door s t o let t he family dog out side. (T 9/23/14, 163) When t he dog scr at ched at t he

door t o be let in, M r . Casanova opened t he door while car r ying Tyler in his r ight

hand. (T 9/23/14, 163) The dog came t hr ough t he door , went t hr ough M r . Casanova’s

legs, t hen cir cled back ar ound, causing M r . Casanova t o lose balance and dr op Tyler

as he fell. (T 9/23/14, 163) M r . Casanova grabbed on t o Tyler as he fell t o t r y t o

pr event him fr om r eaching t he floor , but Tyler landed on t he floor and hit t he r ight

side of his head. (Audio 15:38, 17:14; T 1/4/13, 1 4, 5) M r . Casanova fell on t op of

Tyler and cr ushed him under his weight . (Audio 17:14; T 1/4/13, 5; T 9/23/14, 163)

Tyler became unr esponsive and M r . Casanova immediat ely dialed 911. (T

9/23/14, 168) The paramedics wer e dispat ched t o t he home ar ound 3:59 p.m. (T

9/23/14, 175) When police ar r ived, t hey found M r . Casanova on his hands and knees

at Tyler ’s feet , cr ying hyst er ically. (T 9/23/14, 162, 182)

I mmediat ely aft er Tyler ’s deat h, t he police quest ioned a dist r aught M r .

Casanova and M s. St riker at t he hospit al. (T 9/23/14, 171-172) Ms. St r iker t old t he

1

T 1/4/13 refers to an unofficial transcript of the police interrogation which resulted in Mr.

Casanova’s confession. This transcript was prepared by appellate defense counsel for the courts’

convenience, and is included in the appendix at 7a-37a. At least one omission was identified in

this transcript during the course of the post-conviction litigation, where Mr. Casanova told

Detective Nanna around the 1:40:52 mark of the interrogation that he lied about dropping Tyler.

(See EH 6/21/16, 56, 59-60)

2

officer s t hat t her e had never been any incident s wher e M r . Casanova might have

handled Tyler r oughly or assault ed him. (T 9/24/14, 51) The police asked M r .

Casanova t o come t o t he st at ion for fur t her quest ioning. (M 4/11/14, 20)

The I nter r ogati on

M r . Casanova’s br ot her t ook him t o t he police st at ion and left him t her e at

about 7:00 p.m., wit h t he expect at ion t hat M r . Casanova would call t o be picked up.

(T 9/25/14, 125) Det ect ive Nanna quest ioned M r . Casanova for near ly t hr ee hour s in

a small int er view r oom, videot aping t he ent ir e int er r ogat ion. (T 9/24/14, 73) Aft er

hear ing M r . Casanova’s init ial descr ipt ion of t he incident , Det ect ive Nanna

r epeat edly t old M r . Casanova t hat he did not believe him. (Audio 18:50, 20:10,

20:43, 21:48, 22:15, 22:34, 22:50, 23:10, 23:52, 24:43, 25:14, 25:35, 36:12, 37:57; T

1/4/13 5-9)

Det ect ive Nanna init ially t old M r . Casanova he was not under arr est . (Audio

4:00; T 1/4/13, 1) Thr oughout t he int er r ogat ion, M r . Casanova r epeat edly asked

whet her he would be allowed t o go home; t he det ect ive consist ent ly r esponded his

abilit y t o leave would depend on what M r . Casanova t old him. (Audio 40:27, 1:00:14,

1:02:50, 1:16:50, 1:19:50, 1:33:53; T 1/4/13, 10, 12, 15, 16, 19; M 4/11/14, 53)

Det ect ive Nanna delayed M r . Casanova’s r equest t o see M s. St r iker ,

pr ohibit ed M r . Casanova fr om answer ing his phone, and confiscat ed t he phone fr om

him. (T 1/4/13, 21; M 4/11/14, 53) Det ect ive Nanna also seized Mr . Casanova’s

jacket . (M 4/11/14, 53) H e evaded M r . Casanova’s mult iple r equest s t o use t he

r est r oom, t elling him t o just “sit t ight .” (Audio 1:50-2:07; T 1/4/13, 21-24) When

3

Det ect ive Nanna finally agr eed t o let M r . Casanova use t he r est r oom, he r equir ed

t hat a police officer accompany him. (M 4/11/14, 53)

The det ect ive r epeat edly t old M r . Casanova t hat he needed t o be consist ent

wit h what an aut opsy would show. (Audio 20:10, 23:10, 37:57; T 1/4/13, 6-9) The

det ect ive also advised t hat t he pr osecut or was his “fr iend” (Audio 40:38, 42:23; T

1/4/13, 10); t hat t he det ect ive would t alk t o t he pr osecut or (T 1/4/13, 30); t hat t he

det ect ive would “go t o bat ” for him (T 1/4/13, 18); and he t old him count less t imes

t hat he would “help” him. (T 1/4/13, 8, 10, 11, 14, 15-18)

Aft er almost t wo hour s of quest ioning wit hout M i r anda war nings, M r .

Casanova gave a new account of how Tyler died. H e t old Det ect ive Nanna t hat he

had been “sit t ing on t he bed wit h [Tyler ] and just kind of bouncing him off t he bed.

I t ’s an air mat t r ess.” (Audio 1:43:30; T 1/4/13, 19-20) H e t old t he det ect ive t hat he

did t his “seven or eight t imes,” aft er which Tyler fell unconscious. (Audio 1:46:10; T

1/4/13, 21) Det ect ives lat er cor r obor at ed t hat t he sur face of t he air mat t r ess was

ver y har d when sat upon. (T 9/24/14, 93; T 9 25/14, 75)

Det ect ive Nanna next t old M r . Casanova t hat he had just called t he medical

exper t who r epor t ed t hat t he injur ies wer e not just fr om bouncing off t he bed.

(Audio 1:59:00; T 1/4/13, 23) When M r . Casanova did not waver fr om t his ver sion of

t he event s, t he det ect ive said he did not believe him because t he injur ies wer e not

consist ent wit h bouncing t he child off of an air mat t r ess. (Audio 1:59-2:00; T 1/4/13,

22-24) The det ect ive said t her e was “no way” t he injur ies happened in t he manner

M r . Casanova descr ibed (Audio 2:01; T 1/4/13, 24), and accused M r . Casanova of

4

“sugar coat ing” t he incident . (Audio 2:04, T 1/4/13, 26)

As M r . Casanova was being handcuffed, he asked Det ect ive Nanna if he

would st ill help him by speaking on his behalf t o t he pr osecut or . (Audio 2:42:10; T

1/4/13, 27) Det ect ive Nanna r esponded t hat he would, but t old Mr . Casanova t hat

he needed t o be honest wit h him because “it ’s gonna show on t he aut opsy.”

Det ect ive Nanna t hen began t o quest ion M r. Casanova fur t her , asking, “I s t her e

anyt hing else? I need t o know now. I need t o know or else it ’s going t o look r eally

bad for you.” (Audio 2:42:22, T 1/4/13, 27)

At t hat point , M r . Casanova t old Det ect ive Nanna t hat he might have also

squeezed Tyler “a lit t le bit t oo har d.” (Audio 2:42:46; T 1/4/13, 28) Det ect ive Nanna

pur sued t his line of quest ioning fur t her , t elling M r . Casanova t o “sit down for a

second.” H e asked M r . Casanova a ser ies of specific quest ions about when M r .

Casanova had squeezed t he child, how t he squeezing affect ed t he child’s br eat hing,

and whet her M r . Casanova was st anding or sit t ing on t he bed when t he squeezing

occur r ed. (T 1/4/13, 28) M r . Casanova st at ed, “I kind of picked him up because he

was cr ying and I was like, please st op cr ying, please, I need some sleep. And I was

squeezing him and t hat ’s when I st ar t ed bouncing him har d off t he bed.” (Audio

2:43:20; T 1/4/13, 28) At t hat junct ur e, t he det ect ive deliver ed M i r anda war nings.

(Audio 2:43:20; T 1/4/13, 28)

Ther eaft er , M r . Casanova r epeat ed t hat he had squeezed Tyler t wice and he

“kinda lost his br eat h.” (Audio 2:44:30; T 1/4/13, 28-29) H e also r epeat ed t hat he had

bounced Tyler on t he bed, wit h his back hit t ing t he bed. (Audio 2:46:25; T 1/4/13, 29-

5

30)

Defense M oti on to Excl ude Confessi on

M r . Casanova moved t o exclude t he confession. At a pr e-t r ial mot ion hear ing,

t he t r ial cour t held t hat while M r . Casanova came t o t he police st at ion volunt ar ily,

“cir cumst ances changed” at 7:32 on t he audio r ecor ding, wher e M r . Casanova

r epeat edly asked if he was going home and Det ect ive Nanna said it depended on

what he said dur ing t he int er view. (M 4/11/14, 53-54) At t hat point , t he cour t

concluded, “a r easonable per son… would not feel t hat t hey wer e fr ee t o t er minat e

t he int er r ogat ion and leave.” (M 4/11/14, 54) The cour t r einfor ced t hat posit ion wit h

numer ous ot her det ails including Det ect ive Nanna’s seizur e of M r . Casanova’s

phone and for bidding M r . Casanova fr om speaking wit h his gir lfr iend. (M 4/11/14,

54) The cour t t her eby suppr essed M r . Casanova’s st at ement s fr om t he point at

which he was in cust ody unt il Det ect ive Nanna pr ovided his M i r anda war nings. (M

4/11/14, 55)

The cour t , however , denied M r . Casanova’s mot ion t o suppr ess hi s

st at ement s made aft er Det ect ive Nanna administ er ed his M i r anda war nings. (M

4/11/14, 57, 62; App 38 – 49a) The t r ial cour t r easoned for it s decision:

Thr oughout t hat int er view he’d been t alking about

bouncing t he child off a mat t r ess or somet hing t o t hat

effect . Now we move int o act ually squeezing t he child t oo

har d. So he’s t elling him somet hing differ ent , so t her e’s

not hing unequivocal about t he st at ement no, t hat he

want ed t o somehow t er minat e t he int er r ogat ion and also

could be int er pr et ed as no, I don’t want t o t ell you t he

same t hing I ’ve been t elling you, and t hat ’s impor t ant also

in t he cont ext of what Si eber t was concer ned about ,

because Si eber t was concer ned about t he sit uat ion. And

6

again, I ’ve seen t hose sit uat ions t oo, wher e t he

invest igat ing officer t akes a confession supposedly in a

pr e-cust ody set t ing, t hen give t he M i r anda war nings and

t he confession is essent ially r epeat ed. That is not what

happened her e. This Defendant gave a differ ent st or y as

t o what t r anspir ed bet ween he and t he alleged vict im

aft er t he M i r anda war nings wer e given t han befor e. And

so t he Si eber t concer ns ar en’t r eally manifest her e as far

as I ’m concer ned.

*

*

*

Now for t unat ely for my det er minat ion t his has

been pr eser ved on an audio r ecor ding because aft er

list ening t o t he cont ext of t hat conver sat ion and t he t one

of voice t he det ect ive had when he abr upt ly st opped t he

pr ocess and gave M i r anda, and t he fact t hat he was

st anding up – act ually it looked t o me like t he det ect ive

was put t ing on his coat and he was get t ing r eady t o go

because he was going t o go and execut e t his sear ch

war r ant . So t hat evidenced t o me t her e was no

cont emplat ion on t he officer s par t t hat he was going t o

now t ake a post -M i r anda r epeat of a confession t hat was

made pr e-M i r anda. H e was going t o leave, and when t he

Defendant st ar t ed t alking about t he squeezing, t he officer

st opped and said, well, wait a minut e, you know, I ’m

gonna give you M i r anda now and t hen he did quest ion

him aft er t hat .

So t his appear s t o me, t his business about not

M i r andi zi ng him or not giving him M i r anda war nings . . .

I don’t t hink t her e was anyt hing calculat ed about t hat , I

don’t t hink t her e was anyt hing flagr ant about t hat on t he

officer s par t , I don’t t hink t her e was anyt hing int ent ional

on his par t or anyt hing done specifically t o under mine t he

pr ot ect ions t hat ar e affor ded by M i r anda. (M 4/11/14 5558)

M r . Casanova filed an int er locut or y appeal, challenging t he t r ial cour t ’s

r efusal t o suppr ess t he ent ir e confession, which t he M ichigan Cour t of Appeals

denied. I n light of t he impending admission of por t ions of t he confession, M r .

7

Casanova sought t o admit t he ent ir e confession, while st ill pr eser ving his object ion

t o it s admission. (M 4/21/14; T 9/23/14, 6) At t r ial, t he jur y wat ched t he ent ir e

videot ape of t he int err ogat ion. (T 9/24/14, 91)

The State’s For ensi c Testi mony

For ensic pat hologist , Dr . Joyce DeJong conduct ed an aut opsy on Tyler ’s body.

She descr ibed Tyler ’s injur ies, and opined t hat t hese injur ies were not consist ent

wit h a shor t fall (T 9/25/14, 57); wer e not consist ent wit h M r . Casanova’s

explanat ion of falling on t op of t he baby (T 9/25/14, 57); and wer e inflict ed r at her

t han accident al (T 9/25/14, 20, 35-37). I n fact , she said t he ent ir e pat t er n of injur ies

bor e “t he hallmar ks of abusive inflict ed injur ies” (T 9/25/14, 31), and t hat “violent

for ces” caused t he injur ies. (T 9/25/14, 35) She st at ed t hat r et inal hemor r hages ar e

“almost exclusively seen in inflict ed injur ies.” (T 9/25/14, 34) She added t hat t he

head injur ies wer e acut e, meaning t hat t hey had occur r ed on t he dat e of Tyler ’s

deat h. (T 9/25/14, 42)

Alt hough Dr . DeJong conceded t hat Tyler ’s skull must have hit somet hing

“ver y har d,” she did not r ule out t he possibilit y t hat t he object it hit was an air

mat t r ess (T 9/25/14, 63), which was t he pr osecut ion’s t heor y of how M r . Casanova

caused Tyler ’s deat h. Defense counsel failed t o call a single exper t wit ness t o

disput e t he scient ific basis for t hese conclusions and conceded in his closing

ar gument t hat Dr . DeJong’s t est imony “was devast at ing for t he Defense.” (T

9/25/14, 143)

M r . Casanova was convict ed of fir st -degr ee felony mur der , pr edicat ed on

8

fir st -degr ee child abuse. H e was sent enced t o life impr isonment wit hout par ole.

M oti on to Remand and M oti on for New Tr i al

Post -convict ion, M r . Casanova moved for r emand on t he gr ounds t hat his

t r ial counsel was const it ut ionally ineffect ive for failing t o invest igat e t he validit y of

t he pr osecut ion’s medical evidence and t he suppor t abilit y of M r . Casanova’s ver sion,

which pr ejudiced M r . Casanova’s defense. (Br ief in Suppor t of M ot ion t o Remand,

2/28/16) Aft er a pr ot r act ed evident iar y hear ing involving t est imony fr om M r .

Casanova’s t r ial at t orney and four differ ent exper t wit nesses (t hr ee fr om t he

defense and one fr om t he pr osecut ion), t he t r ial cour t denied M r . Casanova’s M ot ion

for New Tr ial.

Cour t of Appeal s Opi ni on

The M ichigan Cour t of Appeals affir med M r . Casanova’s convict ions. The

cour t did not addr ess whet her t he post -M i r anda st at ement s should have been

suppr essed, but simply held t hat any er r or in admit t ing M r . Casanova’s post M i r anda st at ement s was har mless given t he ot her evidence admit t ed, which t he

cour t st at ed “over whelmingly est ablished defendant ’s guilt .” (3a)

The cour t fur t her hel d M r . Casanova’s t r ial at t or ney did not per for m

deficient ly since counsel consult ed wit h an exper t pr ior t o t r ial. (5a) The Cour t of

Appeals adopt ed t he Cir cuit Cour t ’s opinion and or der r egar ding deficient

per for mance. (5a) The Cour t of Appeals did not addr ess t he pr ejudice pr ong of t he

t r ial cour t ’s Str i ckl and analysis.

9

M i chi gan Supr eme Cour t

On Sept ember 12, 2018, t he M ichigan Supr eme Cour t denied M r . Casanova’s

applicat ion for leave t o appeal. (6a)

10

Reasons for Gr anting the Petition

This Cour t should gr ant t he pet it ion because it pr ovides an oppor t unit y t o

r esolve t he cir cuit split t hat exist s following t his Cour t ’s decision in M i ssour i v.

Sei ber t, 542 U.S. 600, 124 S. Ct . 2601, 159 L . Ed. 2d 643 (2004), as t o t he

appr opr iat e t est for det er mining when st at ement s made aft er midst r eam M i r anda

war nings must be suppr essed. Resolut ion of t his issue is vit al t o pr eser ving t he

Fift h Amendment r ight against self-incr iminat ion.

The r ight against self-incr iminat ion is guarant eed by t he Unit ed St at es

Const it ut ion. U.S. Const ., Am. V. St at ement s of an accused made dur ing a cust odial

int er r ogat ion ar e inadmissible unless t he accused volunt ar ily waives t hat r ight .

M i r anda v. Ar i zona, 384 U.S. 436, 444; 86 S.Ct . 1602; 16 L .Ed. 2d 694 (1966). The

Fift h and Four t eent h Amendment s’ pr ohibit ion against compelled selfincr iminat ion r equir es t hat cust odial int er r ogat ion be pr eceded by advice t o t he

put at ive defendant t hat he has t he r ight t o r emain silent and also t he r ight t o t he

pr esence of an at t or ney. I d. at 479.

M or e t han t hir t y years ago, in Or egon v. El stad, t his Cour t consider ed t he

efficacy of M i r anda war nings administ er ed aft er a suspect had alr eady been

quest ioned wit hout fir st being pr oper ly advised of his M i r anda r i ght s. Or egon v.

Elst ad, 470 U.S. 298, 105 S. Ct . 1285, 84 L . Ed. 2d 222 (1985). This Cour t held, “[a]

subsequent administ rat ion of M i r anda war nings t o a suspect who has given a

volunt ar y but unwar ned st at ement or dinar ily should suffice t o r emove t he

condit ions t hat pr ecluded admission of t he ear lier st at ement .” I d. at 314.

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I n t hat case, t he police suspect ed t hat 18-year -old Elst ad had commit t ed a

r obber y, and ar r ived at his home wit h a war r ant . Aft er allowing him t o dr ess, and

wit h his mot her nearby in t he kit chen, an officer quest ioned Elst ad in his living

r oom and elicit ed Elst ad’s admission t hat he was at t he house dur ing t he r obber y.

I d. at 301.

The officer s t r anspor t ed Elst ad t o t he police st at ion, administ er ed his

M i r anda war nings, and elicit ed t he incr iminat ing st at ement s. This Cour t concluded

t hat t he ear lier quest ioning did not t aint t he subsequent M i r anda war nings for

sever al r easons. Fir st , t he officer ’s init ial quest ioning at Elst ad’s home was

minimal. The int er r ogat ion was much mor e int ensive aft er Elst ad was r ead his

M i r anda r ight s. The change in locat ion – fr om Elst ad’s living r oom t o t he police

st at ion – and t he passage of about an hour bet ween quest ioning fur t her ser ved t o

dist ance t he impr oper quest ioning and bolst er t he effect iveness of t he subsequent

war nings.

I n M i ssour i v. Sei ber t, 542 U.S. 600, 124 S. Ct . 2601, 159 L . Ed. 2d 643

(2004), t his Cour t again consider ed t he efficacy of M i r anda war nings given

midst r eam of an int err ogat ion. Ther e, aft er t hir t y t o for t y minut es of int er r ogat ion,

wit hout M i r anda war nings, M s. Seiber t made incr iminat ing st at ement s. I d. at 605.

The int er r ogat ing officer t ook a 20-minut e br eak, t hen subsequent ly advised M s.

Seiber t of her r ight s and elicit ed t he same incr iminat ing st at ement s. I d. Those

st at ement s wer e pivot al t o M s. Seiber t ’s subsequent mur der convict ion. Not ably,

t he int er r ogat ing officer deliber at ely decided not t o advise M s. Seiber t of her Fift h

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Amendment r ight s. H e was following pr ot ocol, t o “quest ion fir st , t hen give t he

war nings, and t hen r epeat t he quest ion ‘unt il I get t he answer t hat she’s alr eady

pr ovided once.’” I d.

A plur alit y of Just ices held t hat t he midst r eam r eading of M i r anda r ight s

aft er a t hor ough int err ogat ion wer e insufficient t o sat isfy t he pr ot ect ions of t he

Fift h Amendment . I d. at 617. Just ice Sout er r easoned, “it is likely t hat if t he

int er r ogat or s employ t he t echnique of wit hholding war nings unt il aft er

int er r ogat ion succeeds in elicit ing a confession, t he war nings will be ineffect ive in

pr epar ing t he suspect for successive int er r ogat ion, close in t ime and similar in

cont ent .” I d. at 613. The plur alit y dist inguished t he case fr om El stad, which it

consider ed “a good-fait h M i r anda mist ake.” I d. at 615. The plur alit y announced a

set of fact or s t o det er mine whet her a subsequent post -M i r anda st at ement could st ill

be consider ed volunt ar y:

t he complet eness and det ail of t he quest ions and answer s

in t he fir st r ound of int er r ogat ion, t he over lapping cont ent

of t he t wo st at ement s, t he t iming and set t ing of t he fir st

and t he second, t he cont inuit y of police per sonnel, and t he

degr ee t o which t he int er r ogat or 's quest ions t r eat ed t he

second r ound as cont inuous wit h t he fir st . I d. at 615.

Just ice K ennedy filed a concur r ence, adding t he fift h vot e for suppr ession. I d.

at 618. While he adamant ly disavowed t he officer ’s deliber at e subver sion of

M i r anda in t his case, he det er mined t he plur alit y’s appr oach was t oo br oad and

would unr easonably r est r ict law enfor cement effor t s. I d. at 620-622. Rat her , Just ice

K ennedy advocat ed consider ing fir st t he subject ive int ent of t he int er r ogat ing

officer . I d. at 622. I f t he t wo-st ep met hod wer e deliber at ely deployed, as in Sei ber t,

13

t hen Just ice K ennedy advocat ed suppr ession of post -M i r anda st at ement s “r elat ed

t o t he subst ance of pr ewar ning st at ement s… unless cur at ive measur ed ar e t aken

befor e t he post war ning st at ement is made.” I d. at 622. Possible cur at ive measur es

include “a subst ant ial br eak in t ime and circumst ances” or explicit advisement t hat

t he pr ewar ning st at ement s wer e likely inadmissible. I d. at 622.

A. T her e is an ack now ledged conflict concer ning the appr opr iate test to

deter mine the admissibility of statements made after midstr eam

M i r a nda w ar nings.

I n Sei ber t, t his Cour t gr ant ed cer t ior ar i “t o r esolve a split in t he Cour t s of

Appeals” concer ning t he quest ion-fir st police t act ic. Sei ber t, 542 U.S. at 607.

Following t he plur alit y opinion in Sei ber t, t he lower cour t s cont inue t o st r uggle

wit h t he appr opr iat e r ule, r esult ing in inconsist ent r ulings on suppr ession and a

lack of clear guidance for law enfor cement pr ofessionals.

1. A major it y of cir cuit s follow Just ice K ennedy’s concur r ence and r equir e

deliber at e subver sion of M i r anda by police in or der t o war r ant

suppr ession.

Peopl e v M ar ks, 430 U.S. 188, 193; 97 S. Ct . 990 (1977) inst r uct s, “[w]hen a

fr agment ed Cour t decides a case and no single r at ionale explaining t he r esult

enjoys t he assent of five Just ices, t he holding of t he Cour t may be viewed as t hat

posit ion t aken by t hose M ember s who concur r ed in t he judgment s on t he nar r owest

gr ounds.” Applying t he M ar ks r ule, a majorit y of cir cuit s have concluded Just ice

K ennedy’s concur r ence r eflect s t he “nar r owest gr ounds” of t he Cour t ’s holding in

Sei ber t and t her efor e seek fir st t o det er mine t he subject ive int ent of t he

14

int er r ogat ing officer s when evaluat ing t he efficacy of post -war ning st at ement s made

when M i r anda war nings ar e administ er ed midst r eam. M ar ks, 430 U.S. at 193.

For example, in Uni ted States v. M ashbur n, 406 F.3d 303 (4t h Cir. 2005), t he

Four t h Cir cuit consider ed, whet her defendant -appellant M ashbur n’s “init ial,

unwar ned st at ement s r ender ed involunt ar y t he st at ement s M ashbur n

made after r eceiving and waiving M i r anda r ight s.” I d. at 306. Feder al agent s in

t hat case ar r est ed M ashbur n out side his home, while he possessed

met hamphet amine and a gun. An agent held him out side for about fift een minut es,

while ot her s execut ed a sear ch war r ant of his home. The agent t hen br ought

M ashbur n back int o his house, handcuffed.

While inside, one of t he agent s advised M ashbur n t hat he faced t en year s in

pr ison but could help himself by accept ing r esponsibilit y and assist ing law

enfor cement . Anot her agent t hen asked M ashbur n t wo or t hr ee quest ions, befor e

t hey r ealized he had never r eceived his M i r anda war nings. The agent s issued t he

war nings, t hen elicit ed again t he incr iminat ing st at ement s he had just pr ovided. I d.

at 305.

The Four t h Cir cuit adopt ed Just ice K ennedy’s appr oach as t he holding in

Sei ber t. I d. at 308. Finding no indicat ion t he agent s deliber at ely wit hheld M i r anda

war nings, t he cour t simply applied El stad and det er mined M ashbur n’s admissions

wer e made knowingly and volunt ar ily. I d. at 309.

This appr oach is also followed by t he Second Cir cuit (see Uni ted States v.

Caper s, 627 F.3d 470 (2nd Cir . 2010)), Third Cir cuit (see Uni ted States v. Nar anjo,

15

426 F.3d 221 (3r d Cir . 2005)), Fift h Cir cuit (see Uni ted States v. Si ncl ai r , 169

Fed.Appx. 919 (5t h Cir . 2006)), Eight h Cir cuit (see Uni ted States v. Ol l i e, 442 F.3d

1135 (8t h Cir . 2011), and Elevent h Cir cuit (see Uni ted States v. Str eet, 472 F.3d

1298 (11t h Cir . 2006).

2. A minor it y of cir cuit s apply t he Sei ber t plur alit y’s t est .

Some cir cuit s have st r uggled t o consist ent ly apply eit her t he Sei ber t

plur alit y’s appr oach or Just ice K ennedy’s appr oach. For inst ance, while t he Eight h

Cir cuit has est ablished Just ice K ennedy’s appr oach as cont r olling, t he cour t in

Ol l i e, supr a, not ed t hat in past cases, it had applied bot h t he plur alit y appr oach and

Just ice K ennedy’s appr oach, seeking congr uence bet ween t he t wo t est s. Ol l i e, 442

F.3d at 1142, cit ing Uni ted States v. Fel l er s, 397 F.3d 1090, 1098 (8t h Cir . 2005) The

Ol l i e cour t also explained t hat unanswer ed quest ions r emain; for inst ance, it

r emains unanswer ed “which par t y bear s t he bur den of pr oof as t o deliber at eness

and what t he bur den should be.” Ol l i e, 442 F.3d at 1142.

Some cir cuit s r emain undecided as t o which t est is cont r olling. For example,

in Uni ted States v. Rodr i guez-Pr eci ado, 399 F.3d 1118 (9t h Cir . 2005), t he Nint h

Cir cuit explained “[w]e need not decide whet her we ar e bound t o follow t he plur alit y

opinion in Sei ber t or only t hat opinion as limit ed by Just ice K ennedy, because

Sei ber t did not addr ess t he issue r aised in t his case.” Judge Ber zon’s dissent ing

opinion in t hat case highlight s t he discor d t hat r emains in Sei ber t’s wake:

I t her efor e believe we must addr ess t he midst r eam

M i r anda war ning given t o Rodr iguez-Per icado dur ing his

int er r ogat ion on June 27. The pr opr iet y of t hose war nings

– and of t he int er r ogat ion elicit ed t her eaft er – t ur ns on

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what r ule, if any, t he fr act ur ed Supr eme Cour t handed

down in M i ssour i v. Sei ber t… I would follow t he r easoning

of t he Sei ber t plur alit y. I d. at 1133.

The Fir st Cir cuit likewise had “declined t o det er mine whet her Sei ber t’s r each i s

limit ed t o cases in which t he police set out t o subver t a suspect ’s M i r anda r ight s

because t he post -M i r anda st at ement at issue… was admissible even under t he

Sei ber t plur alit y’s mor e cont ext -sensit ive t est .” Uni ted States v. Ver dugo, 617 F.3d

565 (1st Cir . 2010).

The Sevent h Cir cuit , while once applying Just ice K ennedy’s appr oach in

Uni ted States v. Stewar t, 388 F.3d 1079, 1086-90 (7t h Cir . 2004), quest ioned t hat

appr oach in a mor e r ecent case, Uni ted States v H er on, 564 F.3d 879, 884–85 (7t h

Cir . 2009). I n H er r on, t he Sevent h Cir cuit held a defendant ’s confessions wer e

admissible aft er t he r eading of his M i r anda war nings following a pr ior unwar ned

confession. The cour t , however , did not simply apply Just ice K ennedy’s

deliber at eness t est t o det er mine t he st at ement ’s admissibilit y. Rat her t he cour t

quest ioned t he applicabilit y of M ar ks’ nar r owest gr ound edict since Just ice

K ennedy’s concur r ence and t he plur alit y did not have a “common denominat or .”

Given t he fact s of H er r on’s case, however , t he cour t affir med t he dist r ict

cour t ’s denial of his suppr ession mot ion, holding his confession was admissible,

under eit her t he plur alit y’s appr oach, Just ice K ennedy’s appr oach, or El stad.

The H er on cour t det er mined t hat t he M ar ks r ule did not apply t o Sei ber t

because Just ice K ennedy’s concur r ence did not r each a “common denominat or ” wit h

t he plur alit y. Specifically, t he Sevent h Cir cuit r easoned t hat “Just ice K ennedy’s

17

int ent -based t est was r eject ed by bot h t he plur alit y opinion and t he dissent …” I d. at

884. I n cont r ast t o Just ice K ennedy’s appr oach, t he Sevent h Cir cuit opined t hat a

Sei ber t analysis should be “defendant focused.” I d. at 885.

The Sixt h Cir cuit has likewise r eject ed Just ice K ennedy’s concur r ence as

cont r olling, concluding t hat M ar ks is inapplicable, and adopt ed t he Sei ber t

plur alit y’s analysis as t he appr opr iat e t est . I n Uni ted States v. Ray, 803 F. 3d 244

(2015), t he Sixt h Cir cuit not ed t he pr efer ence for a r ule focused on t he defendant ’s

r easonable belief as opposed t o t he officer ’s subject ive int ent in mat t er s of

Const it ut ional jur ispr udence.

The Sixt h and Sevent h Cir cuit s ar e joined by t he Tent h Cir cuit in t heir

r eject ion of Just ice K ennedy’s int ent ionalit y t est followed by most cir cuit s. I n

Uni ted States v Car r i zal es-Tol edo, 454 F.3d 1142 (2006), t he Tent h Cir cuit held t he

defendant ’s init ial, unwar ned quest ioning did not t aint his lat er st at ement s made

aft er bor der pat r ol agent s advised him of his M i r anda r ight s, and t hat his init ial

st at ement s wer e made volunt ar ily. L ike t he cour t s in H er on and Ray, t he Tent h

Cir cuit declined t o apply t he M ar ks r ule t o Just ice K ennedy’s dissent in Sei ber t as

t hat r ule only applies “when one opinion is a logical subset of ot her , br oader

opinions.” I d. at 1151, cit ing Ki ng v. Pal mer , 950 F.2d 771, 781 (D.C. Cir . 1991) (en

banc). Addit ionally as not ed by t he concur r ing cir cuit s who apply t he plur alit y t est ,

and not ably by Judge Ber zon in her dissent ing opinion in Rodr i guez-Pr eci ado, 399

F.3d at 1138-1141, following Just ice K ennedy’s concur r ence is par t icular ly

pr oblemat ic as seven just ices disagr eed t hat t he focus should lie wit h t he

18

int er r ogat ing officer ’s subject ive int ent . I d. at 1151. The cour t t hus applied t he

plur alit y’s mult i-fact or t est and concluded M r . Car r izales-Toledo’s post -M i r anda

st at ement s wer e not t aint ed by t he ear lier pr e-M i r anda quest ions. I d. at 1151.

As r eflect ed in t he var ious appr oaches t hr oughout t he cir cuit s, t his issue

r emains inconsist ent and pr oduces dispar at e r esult s. Wher e t he plur alit y’s t est may

compel suppr ession in one st at e, it may go vir t ually unchallenged based solely on

t he ar t iculat ed subject ive int ent by an officer in anot her .

B. I n this case, under either test, the inter r ogating officer ’s tactic

depr ived M r . Casanova of his F ifth Amendment r ight selfincr imination and his statement should have been suppr essed.

Under eit her t he Sei ber t plur alit y’s t est or Just ice K ennedy’s concur r ence,

M r . Casanova’s post -M i r anda st at ement s should have been suppr essed. H is

confession was inadmissible because his M i r anda r ight s wer e not administ er ed

unt il aft er he had confessed, and t he midst r eam deliver y of t hose war nings did not

salvage t he coer ced nat ur e of t he int er r ogat ion and r ender t he post -war ning por t ion

of t he confession admissible.

Each of t he fact or s ident ified by t he Sei ber t plur alit y compels suppr ession of

M r . Casanova’s confession:

1. “[T ]he completeness and detail of the questions and answ er s in

the fir st r ound on inter r ogation.” Sei ber t, 542 U.S. at 615.

M r . Casanova was t hor oughly int er r ogat ed for mor e t han t wo hour s in t he

fir st r ound of int er r ogat ion. H is int er r ogat ion was t he inver se of t hat in El stad,

wher e t he minimal nat ur e of t he fir st int er r ogat ion vis-à-vis t he mor e t hor ough

19

post -war ning int er r ogat ion compelled t his Cour t ’s conclusion t hat t he pr e-war ning

int er r ogat ion did not r ender t he second int er r ogat ion involunt ary.

2. “[T ]he over lapping content of the tw o statements.” Sei ber t, 542

U.S. at 615.

For mor e t han t wo hour s, Det ect ive Nanna ber at ed M r . Casanova t hat he

was wit hholding t he t r ut h. H e r efused t o accept M r . Casanova’s explanat ion t hat

Tyler ’s injur ies wer e caused by an innocent fall and t old him t hat explanat ion would

be debunked by t he medical evidence. Concur r ent ly Det ect ive Nanna pledged his

willingness t o help M r . Casanova, if only he would confess t he t r ut h.

As t he int er r ogat ion appear ed t o conclude, M r . Casanova implored Det ect ive

Nanna t o help him, as he had pr omised. Det ect ive Nanna agr eed he would help, but

t hat he needed t o know t he whole st or y.

The following exchange occur r ed bet ween M r . Casanova and Det ecit ve

Nanna:

Q: I s t her e anyt hing else? I need t o know now. I need t o

know. Or else it ’s gonna look r eally bad for you.

A: Yeah. I might ’ve squeezed him a lit t le t oo har d.

Q: You wer e squeezing him t oo?

A: A lit t le t oo har d.

Q: Sit down for a second. You don’t mind if Cor por al

Vander salt st ays in her e, do you?

A: No.

Q: You ever squeeze him t oday t oo?

A: A lit t le bit t oo har d.

Q: And is t hat when he quit br eat hing?

A: No, t hat ’s not when he quit br eat hing. Just I feel like, I

kinda picked him up because he was cr ying and I was

like, please st op cr ying , please, you know, I need some

sleep. And I was squeezing him and t hat ’s when I st ar t ed

bouncing him har d off t he bed.

20

Q: And you wer e st anding up at t hat point , you wer en’t

sit t ing next t o him?

A: No, I was –

Q: Oh, you wer e st ill down next t o him?

A: Yeah.

At t his point , aft er mor e t han t wo hour s of int ense cust odial int er r ogat ion,

Det ect ive Nanna advised M r . Casanova of his M i r anda r ight s, which he waived.

The following exchange occur r ed:

Q: So, do you wanna t ell me what you wer e just t elling

me?

A: No.

Q: You wer e squeezing him? H ow many t imes wer e you

squeezing him?

A: Just t wice.

Q: What happened when you squeezed him? What did he

do?

A: H e kinda lost his br eat h.

Q: Wher e wer e your hands?

A: I just had my ar ms wr apped ar ound his st omach or

head and just –

Q: Well, did you have him like t his? Did you have him like

t his? H ow did you have him?

A: K inda like – like in a bear hug.

Q: So you had him in a bear hug and you wer e squeezing

him? Telling, “please, please” r ight ?

A: Yeah, but I let him go. And t hen he was fine. And t hen

he st ar t ed cr ying some mor e.

Q: And t hat ’s when you st ar t ed t hr owing him?

A: I bounced him off t he bed.

Q: Okay, just a second ago you said you squeezed him like

t hat t wice?

A: Yeah.

Q: Okay. So you squeezed him in a bear hug t wice and

kinda quit br eat hing and you let him go and t hen he

st ar t ed br eaking again? Bot h t imes?

A: Yep.

21

Bot h r ounds of int er r ogat ion involved t he det ails of t he supposed squeezing of

Tyler . And bot h r ounds of int er r ogat ion involved t he det ails of t he supposed

bouncing of Tyler ont o t he air mat t r ess.

3. “[T ]he timing and setting of the fir st and the second.” Seiber t, 542

U.S. at 615.

The ent ir et y of M r . Casanova’s int er r ogat ion occur r ed in a single r oom at t he

police st at ion. The int er r ogat ions also pr oceeded cont inuously wit h no gap in t ime.

4. “[T ]he continuity of police per sonnel.” Sei ber t, 542 U.S. at 615.

Det ect ive Nanna alone conduct ed bot h segment s of M r . Casanova’s

int er r ogat ion. The only differ ence in per sonnel bet ween t he t wo-plus hour init ial

int er r ogat ion and t he second int er r ogat ion is t hat a non-speaking second officer was

pr esent in t he r oom dur ing t he second por t i on t o assist wit h t r anspor t . Det ect ive

Nanna alone handled bot h por t ions of t he int er r ogat ion.

5. “[T ]he degr ee to w hich the inter r ogator ’s questions tr eated the

second r ound as continuous w ith the fir st.” Sei ber t, 542 U.S. at 615.

As r eflect ed in t he exchange bet ween M r . Casanova and Det ect ive Nanna,

t r anscr ibed in fact or t hr ee, supr a, t he int er r ogat ions pr oceeded i n linear , cont inuous

fashion wit h complet e over lap. I mmediat ely aft er M r . Casanova confessed t o

squeezing his son, he r eceived his M i r anda war nings and Det ect ive Nanna asked

him, “So, do you wanna t ell me what you wer e just t elling me?” Det ect ive Nanna

t hen ignor ed M r . Casanova’s negat ive r esponse and cont inued t o int er r ogat e him

wit h leading quest ions.

22

Under Just ice K ennedy’s t wo-par t analysis, M r . Casanova’s confession must

also be suppr essed. Det ect ive Nanna’s decision not t o aggr essively int er r ogat e M r .

Casanova for hour s wit hout fir st advising M r . Casanova of his M i r anda r ight s can

only be char act er ized as deliber at e subver sion of M i r anda. Det ect ive Nanna’s er r or

cannot be char act er ized as a r ookie mist ake or good-fait h M i r anda er r or ,

par t icular ly given his mor e t han t went y year s of exper ience. (T 9/24/14, 65)

Fur t her , no cor r ect ive measur es wer e t aken t o cur e t he t aint of his ext ensive

pr e-war ning int er r ogat ion. Ther e was no “subst ant ial br eak in t ime and

cir cumst ances,” and Det ect ive Nanna did not advise M r . Casanova as t o t he likely

inadmissibilit y of his pr ior st at ement s. Sei ber t, 544 U.S. at 622. I n fact , when M r .

Casanova t r ied t o invoke his r ight not t o answer Det ect ive Nanna’s quest ion, it was

complet ely ignor ed.

C. T he M ichigan cour ts unr easonably applied this Cour t’s pr ecedent in

holding M r . Casanova’s post-w ar ning statement w as admissible

despite the midstr eam M i r a nda w ar nings.

The t r ial cour t ’s r easoning in suppor t of it s or der denying M r . Casanova’s

suppr ession mot ion is fact ually flawed and defies t his Cour t ’s pr ecedent in El stad

and Sei ber t. The cour t er r oneously concluded t hat M r . Casanova “t old [Det ect ive

Nanna] somet hing differ ent t han what he had been saying t hr oughout t he cour se of

t he int er view t hat st ar t ed ar ound 7:00.” True, M r . Casanova pr eviously denied any

wr ongdoing, but his evolving explanat ion as t o what happened was a dir ect

r esponse t o Det ect ive Nanna’s r epeat ed asser t ion t hat he was wit hholding t he

t r ut h, and implying t hat he would only help M r . Casanova if his st or y changed.

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Fur t her , M r . Casanova’s pr e-war ning st at ement t hat he squeezed his child is

seemingly what pr opelled Det ect ive Nanna t o administ er his M i r anda r ight s. And

t hat is pr ecisely what Det ect ive Nanna asked M r . Casanova post -war ning: “So, do

you wanna t ell me what you wer e just t elling me? … You wer e squeezing him? H ow

many t imes wer e you squeezing him?” Also cont r ar y t o t he cour t ’s findings,

Det ect ive Nanna int er r ogat ed M r . Casanova about bouncing Tyler on t he air

mat t r ess bot h befor e and aft er advising M r. Casanova of his M i r anda r ight s.

The t r ial cour t ’s conclusion t hat “Sei ber t concer ns ar en’t r eally manifest her e

as far as I ’m concer ned,” is clear ly er r oneous and const it ut es an abuse of discr et ion.

I ndeed t he concer ns par amount t o t his Cour t ’s opinions in El stad and Sei ber t ar e

evident in t his case. Given t he labor ious pr e-war ning int er r ogat ion, it is clear t hat

M r . Casanova was not awar e he could r efuse t o t alk t o Det ect ive Nanna at t he t ime

his r ight s wer e administ er ed and he was not awar e t hat t he st at ement s he made

over t he pr evious t wo-t hr ee hour s wer e inadmissible. By t he t ime his r ight s wer e

administ er ed, t he pr over bial “cat was sufficient ly out of t he bag,” and his waiver

was t her efor e involunt ar y. El stad, 470 U.S. at 303.

The M ichigan Cour t of Appeals elect ed not t o conduct any Fift h Amendment

analysis in it s opinion and simply r ender ed any er r or har mless beyond a r easonable

doubt in light of t he st r engt h of t he ot her evidence admit t ed against M r . Casanova.

This r easoning is flawed par t icular ly in light of t he connect ion bet ween M r .

Casanova’s involunt ar y st at ement s and t he incr edible medical t est imony r elied

upon by t he cour t . Dr . DeJong opined t hat mechanism descr ibed M r . Casanova in

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his coer ced confession was consist ent wit h t he medical evidence. On r emand, M r .

Casanova pr esent ed mult iple exper t s t o r efut e t hat opinion. Dr . DeJong’s t est imony

was not challenged at t r ial, however , due t o his at t or ney’s ineffect iveness. The

cont r over sy behind opinions like Dr . DeJong’s – for example, t hat Tyler ’s injur ies

could only be caused by int ent ional for ce – is widely r ecognized and est ablished.

See, e.g., Peopl e v Ackl ey, 497 M ich 390-391; see al so H aber man, Shaken Baby

Syndr ome: A Di agnosi s that Di vi des the M edi cal Wor l d, New Yor k Times

<ht t p://www.nyt imes.com/2015/09/14/us/shaken-baby-syndr ome-a-diagnosis-t hat divides-t he-medical-wor ld.ht ml?_r =0> (accessed August 28, 2017); see al so

Gut hkelch, Pr obl ems of I nfant Reti no-Dur al H emor r hage wi th M i ni mal Exter nal

I njur y, available fr ee online at :

<ht t ps://www.law.uh.edu/hjhlp/volumes/Vol_12_2/Gut hkelch.pdf> (accessed August

28, 2017)

The cour t s below unr easonably applied El stad and Sei ber t in deeming M r .

Casanova’s post -war ning st at ement admissible even t hough he was not given

M i r anda war nings unt il aft er t he det ect ives had ext r act ed incr iminat ing

st at ement s fr om him. This pet it ion gives t his Cour t t he oppor t unit y t o clar ify t he

r ule t hat should apply when M i r anda war nings ar e given long aft er an

int er r ogat ion begins. Ther efor e, t his Cour t should gr ant M r . Casanova’s pet it ion for

wr it of cer t ior ar i.

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CON CL U SI ON AN D REL I EF SOU GH T

For t he for egoing r easons, M r . Casanova asks t hat t his H onor able Cour t

gr ant him a wr it of cer t ior ar i.

Respect fully submit t ed,

/s/ Chr ist ine A. Pagac

_________________________________

CH RI STI NE A. PAGAC

(Counsel of Recor d)

STATE A PPEL L ATE D EFENDER OFFI CE

645 GRI SWOL D , SUI TE 3300

Det r oit , M I 48226

(313) 256-9833

At t or ney for Pet it ioner

Dat e: December 11, 2018

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