Appeal from the United States District Court for the Eastern District of Wisconsin. 03-C-1279-Lynn Adelman, Judge.
The opinion of the court was delivered by: Posner, Circuit Judge.
Before POSNER, RIPPLE, and ROVNER, Circuit Judges.
Stanley Samuel was convicted by a jury in a Wisconsin state court of second-degree sexual assault of a child, interference with child custody, and abduction, Wis. Stat. §§ 948.02(2), 948.31(2), 948.30, and was sentenced to 38 years in prison to be followed by 16 years on probation. After exhausting his state remedies, see State v. Samuel, 643 N.W.2d 423 (Wis. 2002), he petitioned for federal habeas corpus relief, lost, and appeals.
In 1996, the defendant, who was 47 years old, ran off with a 15-year-old girl named Tisha. Their spree began in Wisconsin, but they soon left the state and were not picked up until 13 months later, in Missouri, by which time Tisha was nine months pregnant. An issue critical to the charge of sexual assault was whether the pair had had sex in Wisconsin before they left the state (for otherwise the defendant would not have violated Wisconsin's sexual-assault statute). While Tisha denied this at the trial, statements that she had made under police questioning when the couple were returned to Wisconsin after the spree, admitting that she and the defendant had had sex in Wisconsin, were introduced over objection at his trial.
The defendant claims that Tisha's statements had been coerced and therefore that their use in evidence against him violated his federal constitutional rights. The district court disagreed, ruling that the state courts' adjudication of his claims had not been "contrary to . . . clearly established Federal law, as determined by the Supreme Court of the United States," 28 U.S.C. § 2254(d)(1), or "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." § 2254(d)(2). And so it denied relief.
Tisha had given birth the day after her return to Wisconsin. Two days later social workers and officers of the Wisconsin juvenile court convened a conference to decide about the custody of the baby. Police officers attended the conference along with Tisha, her lawyer, her father, and her father's girlfriend. Tisha was questioned extensively. At the end of the conference it was decided to place the infant in foster care temporarily and to hold another placement conference in two days. Tisha was permitted to spend time with and breast feed the baby in the foster home.
On the day between the two conferences, she was interviewed at the police station by two officers and it was then that she gave the statements introduced at trial. The day after the second conference she was given custody of the baby.
At a pretrial suppression hearing, Tisha testified that at the first conference she had been told that if she didn't cooperate she wouldn't get her baby back, and that she understood this to mean that she had to give statements to the police. Her father testified that at that conference the police officers had gotten angry with Tisha because she refused to tell them where she'd been with the defendant or give them the addresses of the people they had stayed with. Her lawyer testified that the impression created at the conference was that unless Tisha gave a full statement concerning the defendant's conduct, she would not get the baby back.
The question whether the statements had been coerced resurfaced at the defendant's trial. Tisha's father testified that when the child welfare officers gave his daughter custody of the baby they said it was because she'd exhibited proper maternal behavior during her visits to the baby at the foster home. The police officers who had questioned her denied any involvement in the initial decision to place the baby in foster care.
We can assume without having to decide that had Tisha been a defendant her statements could not have been admitted against her. The officers may have created the impression that unless she cooperated in their investigation of the defendant they would make sure she did not get her baby back. A failure to cooperate with police could be a proper reason for doubting a runaway teenage single mother's competence to be given custody of her child, and there was more: Tisha had not sought prenatal care or given other signs of taking the responsibilities of motherhood seriously. Had the child-welfare authorities believed that her failure to answer questions about her pregnancy during her months on the run counted against giving her custody of her baby, they could tell her that, even though by telling her they would be forcing her to choose between losing the baby and incriminating the father. She would need that information-information about the consequences of refusing to cooperate-in order to make an informed decision about whether to cooperate.
That would be a different conversation from police threatening her with denial of custody of the baby because she refused to incriminate the father. An incriminating statement induced by that kind of police threat would be inadmissible, at least if sought to be placed in evidence at the trial of the person who had made the statement and been incriminated by it. Lynumn v. Illinois, 372 U.S. 528, 534-35 (1963); United States v. Tingle, 658 F.2d 1332, 1336-37 (9th Cir. 1981); cf. Vaughn v. Ruoff, 253 F.3d 1124, 1128-29 (7th Cir. 2001). It would be like threatening a person with torture if he refused to 'fess up. The problem (or one problem) with allowing such threats is that, to be credible, they would sometimes have to be carried out, and torture and taking away a person's child are not considered proper methods of obtaining evidence against criminals.
Some courts hold that placing in evidence a coerced statement of a witness in a criminal case who is not a defendant or a potential defendant nevertheless violates a constitutional right of the defendant, though obviously not his right not to be forced to incriminate himself. E.g., United States v. Gonzales, 164 F.3d 1285, 1289 n. 1 (10th Cir. 1999); LaFrance v. Bohlinger, 499 F.2d 29, 35-36 (1st Cir. 1974). Other courts, including Wisconsin, exclude such a statement only if it is unreliable, which requires that a higher level of coercion be shown. E.g., State v. Samuel, supra, 643 N.W.2d at 431-32; United States v. Merkt, 764 F.2d 266, 273-75 (5th Cir. 1985). Still other courts, including ours, Buckley v. Fitzsimmons,20 F.3d 789, 794-95 (7th Cir. 1994), do not think that there is an exclusionary rule, as such, applicable to third-party statements, though they would reverse a conviction if it rested entirely on a coerced statement that was completely unreliable, just as they would reverse any conviction that rested entirely on completely unreliable evidence. State v. Vargas, 420 A.2d 809, 814 (R.I. 1980); People v. Badgett, 895 P.2d 877, 883-88 (Cal. 1995). For in such a case no reasonable judge or jury could find that the defendant's guilt had been proved beyond a reasonable doubt, and hence the conviction would have deprived him of liberty without due process of law. Jackson v. Virginia, 443 U.S. 307, 317-18 (1979).
The Supreme Court has not decided whether the admission of a coerced third-party statement is unconstitutional, and this may seem to doom the petitioner's case. But section 2254(d)(1) does not say that there can be no relief unless the state court's decision was contrary to a clearly established holding of the Supreme Court. The decision need only be contrary to federal law as clearly established by the Court. "Law" is not limited to the narrowest rule stated in a case that is consistent with the facts of the case, which is one sense of "holding"; it embraces legal principles, Bell v. Cone, 535 U.S. 685, 694 (2002); Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003); Anderson v. ...