Jeanette M. Janusiak, Petitioner-Appellant,
Sarah Cooper, Respondent-Appellee.
July 9, 2019
from the United States District Court for the Eastern
District of Wisconsin. No. 17-CV-514 - William C. Griesbach,
Kanne, Hamilton, and Scudder, Circuit Judges.
HAMILTON, CIRCUIT JUDGE
an infant died in the care of petitioner Jeanette Janusiak, a
Wisconsin jury found her guilty of first-degree intentional
homicide. On direct appeal, state courts rejected her
argument that statements she made during an interrogation
were involuntary and should have been suppressed. Janusiak
then asserted that argument in federal court in her petition
for a writ of habeas corpus under 28 U.S.C. § 2254. The
district court denied relief. We affirm.
appeal, Janusiak contends her statements were coerced by (1)
comments that law enforcement made to her about keeping
access to her children, (2) the length and other features of
the interrogation, and (3) her vulnerability as a pregnant
woman and mother. We affirm because the state appellate court
reasonably applied the correct standard to determine that
Janusiak's statements were voluntary.
Factual and Procedural Background
facts about Janusiak's case are drawn from the
state-court record. Janusiak called 911 to report that Payten
Shearer, a friend's baby in her care, was not breathing.
Paramedics took Payten to the hospital while officers talked
to Janusiak. The police returned about eight hours later, and
Janusiak, then eight months pregnant, agreed to go to the
police station for an interview. Police questioned her about
Payten's death for about seven hours. Toward the end of
the interrogation, Janusiak made statements about what
happened to Payten that were used to impeach her testimony at
trial. The Wisconsin Court of Appeals court described the
interrogation as follows:
It is undisputed that, during the interview with the officers
that she now challenges, Janusiak initially repeated the same
account that she had given to police after they responded to
a 9-1-1 call made by Janusiak. This initial account was that,
after she had put the baby on a bed in a bedroom, Janusiak
fell asleep in the living room, was awakened by a
"choking, gurgley noise," and when she went into
the bedroom she found that the baby was not breathing and she
called 9-1-1. Janusiak said that she was not aware of any
problem with the baby before she was awakened by the sounds.
However, as the interview that Janusiak now challenges
progressed, Janusiak's account changed markedly from the
initial claim that she had no knowledge of how the baby had
been injured. Janusiak at one point said, "She [the
baby] fell off my bed, it was off my bed." Later,
Janusiak said, "She hit the table." Later, Janusiak
said, "She went down, she hit the table, there's a
little shelf opening in the table and she hit that. And then
she fell and then she (unintelligible). And then I grabbed
her." Later still, Janusiak said, "I set her down
on the bed, she fell off the bed.... It was the table. She
hit, she hit the table." Throughout the remainder of the
interview, Janusiak remained insistent that this last account
was accurate, rejecting the police officers' position
that the baby's injuries could not have occurred in the
manner that Janusiak described, given the medical evidence as
the officers understood it.
State v. Janusiak, 876 N.W.2d 178, 367 Wis.2d 349,
¶¶ 3-6 (Wis. App. 2016) (footnote omitted).
was charged with first-degree intentional homicide. Before
trial, she moved to suppress a video recording of the
interrogation. The trial court denied the motion, and the
recording was shown to the jury to undermine her credibility
with her inconsistent story.
state appellate court described the testimony received at the
suppression hearing and the trial court's ruling on
At the hearing on voluntariness, Janusiak did not testify.
The officers who conducted the interview testified to facts
that included the following. Janusiak was cooperative and
willing to go to the police station for the interview.
Janusiak was not in handcuffs either prior to entering the
interview room or during the interview. The entire interview
was recorded. Janusiak was read, understood, and waived her
Miranda rights. The officers provided Janusiak with
soda and with "at least three" breaks during the
interview, which Janusiak used to smoke or to use the
restroom. Janusiak appeared to understand the interview
questions and did not appear to be tired.
Based on this testimony and a viewing of the recording of the
interview, the circuit court determined that the statements
were made voluntarily. The court noted that the interview
session was lengthy (approximately seven hours including
breaks), but found that Janusiak "did not appear to be
over tired or unable to exercise her free will during the
interview." The court found that there were "at
least a couple" breaks in the questioning and that the
officers offered Janusiak food and drink during the
interview. Addressing Janusiak's arguments that the
officers coerced her statements by promising her that she
would return home to her children and would not go to jail if
she cooperated, the court found that "the officers were
confrontational about her explanation for the victim's
injuries which they believe did not match what they were
being provided by medical professionals." However, the
court also found that nothing that the officers did or said
"rose to the level of coercive police conduct." The
court ultimately concluded that the statements "were
voluntary under the totality of the circumstances/'
because police did not use "improper ... practices or
coercion" "to obtain the statements."
Janusiak, 367 Wis.2d 349, ¶¶ 3-6 (footnote
omitted). We have viewed and compared the video with the
transcript. The state appellate court's description and
the transcript are materially consistent with the video.
using Janusiak's inconsistencies from the interrogation
to undermine her credibility, the State relied heavily on
testimony from medical experts that implicated Janusiak. A
radiologist testified that Pay ten's skull was fractured
in three places and that a fall from a bed would be unlikely
to cause those injuries. A pediatrician specializing in child
abuse testified that Payten had bruising on her chest and
back in a pattern resembling an adult hand, and that these
injuries, among others (such as detached retinas), had
occurred shortly before the paramedics started treating
Payten. The pediatrician also concluded that Payten had been
sodomized with an object and had suffered "definite
abusive head trauma, child physical abuse that led to [her]
demise." The experts relied on the facts that Janusiak
was Payten's primary caregiver for the three days
preceding Pay ten's injuries and was, according to
Janusiak herself, the only adult in the home the night that
she called 911. The State also introduced evidence that
Payten's blood was found on a wall of the bedroom, on the
bed, and on a washcloth stuffed under the mattress.
defense focused on testimony from her and her medical expert.
She insisted that she never hit or sodomized Payten and that
Payten had not fallen off a bed. She said that she changed
her story during the interrogation only because the officers
"scared me, and they told me, basically the truth
wasn't enough, so if I knew what happened to Payten, and
an accident happened, then I can go home to my
children." She described her physical condition during
the interrogation as "very far along in pregnancy and
physically exhausted." Her medical expert testified that
the iron content of Payten's blood, the "healing
characteristics" of Payten's head, and delay between
injury and symptoms in some infants suggested that
Payten's injuries were inflicted "a few days prior
to Pay-ten's collapse."
jury found Janusiak guilty of first-degree intentional
homicide, and she was sentenced to life in prison. In her
direct appeal in state court, she argued that her statements
during the interrogation were coerced in violation of the
Fifth and Fourteenth Amendments. She gave three reasons:
First, the officers and a social worker threatened to
separate her from her children if she did not satisfy them, a
tactic that she said was barred by Lynumn v.
Illinois, 372 U.S. 528 (1963). Lynumn
overturned a conviction for unlawful marijuana use that was
based in part on a confession that the police obtained by
threatening Lynumn that unless she "cooperated,"
they would take her children from her and stop the
state's financial aid to the children. Second, the
threats, the length of the interrogation, her pregnancy, and
the officers' promises to let her see her children if she
cooperated, combined to create an unduly coercive atmosphere
for any defendant. Third, she was particularly vulnerable to
coercion because of her pregnancy and status as a mother of
four young children.
appellate court affirmed for several reasons. It first
determined Janusiak was not "particularly vulnerable to
police pressures and tactics." Janusiak, 367
Wis.2d 349, ¶ 15. The court cited her age of 24,
high-school education, five prior experiences with the
police, calm demeanor ("she had ceased crying and was
calm by the time the officers began to question her"),
absence of exhaustion, and officers' repeated offers of
breaks, food, and drink. ¶¶ 9, 13, 15. The court
noted that "[a]dvanced pregnancy might be a contributing
factor if combined with other pertinent facts ..., but
Janusiak fails to point to any such pertinent facts."
addition, the circumstances of the interrogation were not
unduly coercive. First, Janusiak had "clearly and
voluntarily waived" the rights established in
Miranda v. Arizona, 384 U.S. 436 (1966), for her
"lengthy" custodial questioning. 367 Wis.2d 349,
¶ 17. Second, the officers did not threaten or use
violence or intimidation. Id. Third, the officers
"were generally attentive to Janusiak's personal
needs and did not appear to take advantage of her emotional
state when she cried in their presence." Id.
Fourth, Janusiak did not ask to stop the interview and even
asked "to continue talking when the officers said it was
time to end the interview." Id., ¶ 19. The
court explained that those facts, plus its review of the
interrogation video, did not make this one of the
"rare" cases where the police gave Miranda
warnings but the suspect's statements should still be
deemed to have been coerced. ¶ 18.
the court addressed Janusiak's argument that, in
violation of the principle of Lynumn, she was
"threatened" with losing her children unless she
acknowledged her guilt. Ja-nusiak, 367 Wis.2d 349.
¶ 21. The court focused first on the statements of the
social worker, Hazel Coppernoll:
Coppernoll was present during the questioning for fewer than
ten minutes of the seven-hour interview period. Coppernoll
informed Janusiak that she was "not taking
[Janusiak's children] into custody," but that
Coppernoll was concerned for Janusiak's children if it
turned out that the baby had been injured in Janusiak's
home. Coppernoll also suggested, before leaving the interview
room, that Janusiak "be as cooperative as [Janusiak]
possibly can." ... [T]hat statement came nearly six
minutes after Coppernoll informed Janusiak that she was not
taking her children into custody. Moreover, it came on the
heels of Coppernoll telling Janusiak, in a ...