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![affirmed. Upon granting consolidated review of the two
decisions, the Supreme Court, Heffernan, J., held that the
confessions extracted from two police officers, a male and
a female officer who admitted having sexual intercourse
with each other on three separate occasions, were, as a
matter of fact and law, coerced, involuntary, the result
of a denial of due process, and contrary to fundamental
principles of decency and fair play; and without said
confessions, there was no evidence whatsoever to support
the discharge decisions of the board.
Reversed and remanded, with directions.
West Headnotes (13)
[1] Municipal Corporations
Evidence in general
Municipal Corporations
Sufficiency of evidence to support finding
or decision
Public Employment
Admissions, declarations, and
confessions
Public Employment
Removal, separation, termination, and
discharge in general
Confessions extracted from two police
officers, a male and a female officer who](https://image.slidesharecdn.com/oddsenv-221107171123-91262967/75/Oddsen-v-Board-of-Fire-and-Police-Comrs-for-City-of-Milwauke-docx-3-2048.jpg)
![admitted having sexual intercourse with each
other on three separate occasions, were, as a
matter of fact and law, coerced, involuntary,
the result of a denial of due process, and
contrary to fundamental principles of decency
and fair play; and without said confessions,
there was no evidence whatsoever to support
the discharge decisions of the board of fire
and police commissioners. W.S.A. 62.50(13),
944.16; U.S.C.A.Const.Amend. 14.
6 Cases that cite this headnote
[2] Municipal Corporations
Evidence in general
Public Employment
Admissions, declarations, and
confessions
Statements which the police extracted from a
female officer were coerced and involuntary,
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mentGuid=I6a26b0c8feb011d99439b076ef9ec4de&transitionTyp
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![Government Works. 2
where they were the result of 14 hours of
interrogation, during which time the officer
complained of severe stomach pains and
the vomiting of blood, where, during the
interrogation, she was permitted to call her
doctor four times to make appointments to
see him, but each time, when the time for
the appointment came, she was told by her
interrogators that she could not see her doctor
until they were finished with her, where she
knew that her failure to respond to questions
could result in her discharge, and where, after
she wrote her initial statement, she was told
she would have to write another report, one
which would conform to what the police
believed to be the truth.
3 Cases that cite this headnote
[3] Municipal Corporations
Evidence in general
Public Employment
Admissibility in general
Superiors in a police force may question a
subordinate and ask questions specifically,
directly, and narrowly relating to the
performance of his or her official duties, as
distinguished from beliefs or other matters
that are not within the scope of subordinate's
specific duties.
Cases that cite this headnote](https://image.slidesharecdn.com/oddsenv-221107171123-91262967/75/Oddsen-v-Board-of-Fire-and-Police-Comrs-for-City-of-Milwauke-docx-8-2048.jpg)
![[4] Municipal Corporations
Evidence in general
Public Employment
Admissions, declarations, and
confessions
Failure to afford counsel to two police
officers, who were being interrogated on the
matter of whether they committed adultery
with each other, was a coercive factor and
contributed to the production of involuntary
and coerced statements from both officers.
1 Cases that cite this headnote
[5] Constitutional Law
Protections Provided and Deprivations
Prohibited in General
Right of due process, which is constitutionally
protected, is not limited to criminal matters.
U.S.C.A.Const.Amend. 14.
4 Cases that cite this headnote
[6] Constitutional Law
Rights and Interests Protected in General
Public employment is a property right.
U.S.C.A.Const.Amend. 14.
2 Cases that cite this headnote](https://image.slidesharecdn.com/oddsenv-221107171123-91262967/75/Oddsen-v-Board-of-Fire-and-Police-Comrs-for-City-of-Milwauke-docx-9-2048.jpg)
![[7] Evidence
Evidence wrongfully obtained
Evidence obtained by the denial of due process
may not be used in the courts of Wisconsin.
Cases that cite this headnote
[8] Constitutional Law
Procedural due process in general
Due process is required not merely for
the protection of unfortunate victims of
coercive police tactics, but is also necessary
for the integrity of the judicial process.
U.S.C.A.Const.Amend. 14.
Cases that cite this headnote
[9] Constitutional Law
Circumstances Under Which Made;
Interrogation
Due process is violated by coerced
confessions, because they are unreliable and
should not be allowed to contribute to a
finding of guilt in a court of law which
attempts to base its judgments on trustworthy
and reliable evidence. U.S.C.A.Const.Amend.
14.
Cases that cite this headnote
[10] Municipal Corporations](https://image.slidesharecdn.com/oddsenv-221107171123-91262967/75/Oddsen-v-Board-of-Fire-and-Police-Comrs-for-City-of-Milwauke-docx-10-2048.jpg)
![[11] Municipal Corporations
Grounds for removal or suspension
Public Employment
Disobedience or insubordination
A police officer may be discharged for refusal
in a disciplinary proceeding to testify as to his
conduct as a police officer.
Cases that cite this headnote
[12] Municipal Corporations
Evidence in general
Public Employment
Admissions, declarations, and
confessions
As a matter of law, the coerced, involuntary
confessions extracted from two police officers,
who were suspected of having engaged in an
adulterous relationship, could not, under the
circumstances, be used for any purpose.
1 Cases that cite this headnote
[13] Municipal Corporations
Evidence in general
Public Employment
Admissions, declarations, and
confessions](https://image.slidesharecdn.com/oddsenv-221107171123-91262967/75/Oddsen-v-Board-of-Fire-and-Police-Comrs-for-City-of-Milwauke-docx-16-2048.jpg)
![Fire and Police Commissioners. Oddsen's case was *146
heard in the **164 circuit court for Milwaukee county,
JOHN E. McCORMICK, Circuit Judge. That court on
September 15, 1980, reversed the order of the Board of
Fire and Police Commissioners. Appeal was taken by the
board to the court of appeals. The court of appeals, by
unpublished opinion dated June 23, 1981, reversed the
circuit court and reinstated the discharge order of the
Milwaukee Board of Fire and Police Commissioners.
In respect to each of these cases we accepted review on
petition of the police officers. We review the decisions
of the court of appeals; and in each case, we reverse the
court of appeals and direct the reinstatement of each of
the police officers without prejudice and without loss of
entitlement to pay for the period since discharge. The
causes are remanded to the respective circuit courts for the
purpose of calculating the pay to which each of the officers
is now entitled, after making a determination of what
earned income each of the officers has accrued during the
period of suspension, which income, if any, shall be an
offset against the liability of the city for the pay the officers
would otherwise have accrued during the period that runs
from the date of their discharge, April 11, 1978, to the date
of reinstatement.
[1] Numerous issues are posed in each of these cases.
We find it unnecessary, however, to resolve all the
issues, because we find controlling in each case the same
dispositive issue—that the confessions extracted from
Quade and Oddsen, as a matter of fact and law, were
coerced, involuntary, the result of denial of due process,
and contrary to fundamental principles of decency and
fair play. Because we set aside each of these confessions in
their entirety, there is no evidence whatsoever to support](https://image.slidesharecdn.com/oddsenv-221107171123-91262967/75/Oddsen-v-Board-of-Fire-and-Police-Comrs-for-City-of-Milwauke-docx-22-2048.jpg)
![been a possibility of your becoming pregnant.” 2
After being questioned for twelve hours, Quade was
allowed to leave shortly after 7 p. m. While she was on
her way home, being driven by police sergeants, they were
ordered to return her to the central police administration
offices. She was returned for a purpose that is not made
clear in the record nor was it made clear to her. She was
finally permitted to return home after fourteen hours of
custody and confinement.
[2] Accordingly, the statements which the police officers
extracted from Quade were the result of approximately
*151 fourteen hours of interrogation, during which
time Quade complained of severe stomach pains and
Oddsen v. Board of Fire and Police Com'rs for City of
Milwaukee, 108 Wis.2d 143 (1982)
321 N.W.2d 161
© 2018 Thomson Reuters. No claim to original U.S.
Government Works. 6
the vomiting of blood. During the interrogation she
was permitted to call her doctor four times to make
appointments to see him; but each time, when the time for
the appointment came, she was told by the interrogators
that she could not see her doctor until they were finished
with her. Officer Quade knew that her failure to respond to
the questions could result in her discharge; and when she
wrote her initial statement, she was told she would have
to write another report—a report which would conform](https://image.slidesharecdn.com/oddsenv-221107171123-91262967/75/Oddsen-v-Board-of-Fire-and-Police-Comrs-for-City-of-Milwauke-docx-27-2048.jpg)
![Oddsen. In addition, it alleged that, on New Year's Eve,
January 1, 1978, she had knowledge of an unauthorized
party at the Police Academy and failed to notify her
commanding officer. This, the chief of police alleged,
subjected Gail Quade to discipline for disobedience of
orders. This latter allegation on the face of Breier's
complaint is insufficient, because there is not even an
assertion that the alleged conduct was in violation of a rule
or in violation of an order. The only allegation is that there
was no authorization for the party. Moreover, the only
proof in respect to Quade's knowledge of the New Year's
Eve party or her conduct in respect thereto is contained in
her statement given under duress.
Numerous issues were addressed in both appeals to
the Board of Fire and Police Commissioners. The only
evidence of misconduct before the board in respect to
either Quade or Oddsen was derived from the statements
taken during their interrogation on March 22. We
conclude that all of the information thus adduced was
involuntary, coerced, in violation of their constitutional
Oddsen v. Board of Fire and Police Com'rs for City of
Milwaukee, 108 Wis.2d 143 (1982)
321 N.W.2d 161
© 2018 Thomson Reuters. No claim to original U.S.
Government Works. 8
rights of due process, and, accordingly, was untrustworthy
and required to be excluded from the evidence.
[3] It is, of course, the law that superiors in a police force](https://image.slidesharecdn.com/oddsenv-221107171123-91262967/75/Oddsen-v-Board-of-Fire-and-Police-Comrs-for-City-of-Milwauke-docx-33-2048.jpg)
![purposes, whether those purposes be criminal prosecution
or the imposition of penalties under the rules of the police
department. 3
*157 In both cases, Officers Quade and Oddsen were
denied counsel. In respect to Oddsen, the Board of Fire
and Police Commissioners made a specific finding that
there was a “conscientious” denial of counsel. No such
finding was made in respect to Quade, but the evidence
adduced at her hearing showed, at the very outset of the
interrogation, Oddsen requested counsel for himself and
for Quade. Also, it is undisputed that Quade requested
counsel before her verbatim stenographic statement was
elicited. If there were a constitutional right to counsel
clearly spelled out, or a statutory right to counsel, the
denial of counsel would end the controversy and result in
a dismissal of the charges. Here, the city contends, there
is no right to counsel. Conceding, arguendo, that may be
true, that does not mean that the lack of counsel here
did not contribute substantially to the totality of coercive
circumstances.
[4] We conclude that the failure to afford counsel was
a coercive factor and contributed to the production of
involuntary and coerced statements from both officers. 4
Additionally, both of the police officers knew that they
were obliged to answer questions or possibly forfeit the
property rights in their employment. They were conveyed
to the police station in a squad car and were under close
supervision for the rest of the day. Both of them were
in the coercive atmosphere of the police station. The
coerciveness of these surroundings upon one who is not](https://image.slidesharecdn.com/oddsenv-221107171123-91262967/75/Oddsen-v-Board-of-Fire-and-Police-Comrs-for-City-of-Milwauke-docx-35-2048.jpg)
![refused to allow her to see her own doctor, who was
familiar with her case. They did agree that they would take
her to a hospital and have her seen by a doctor, but it was
very clear that they were denying her medical attention
from her own physician. Much is made by the city of
the fact that, upon Lt. Starke's question, “Do you *159
wish medical attention at this time,” Quade responded,
“No, I'll wait.” However, Quade had just stated that she
was experiencing discomfort. Moreover, this statement
was taken at 5:45 p. m., after approximately ten hours
of questioning, and it was at a time when Officer Quade
had finally given a preliminary statement that satisfied her
inquisitors. She had already stated that she had indulged
in sexual intercourse with Oddsen. The police had told
her that when she finished her statement she would be
released. It is rather obvious why at this point, with
release imminent, she did not demand immediate medical
attention. Cruelly enough, even after this statement was
completed, she was kept in custody for approximately
another three hours.
[5] The right of due process, which is constitutionally
protected, is not limited to criminal matters. Our
constitution provides:
“No State shall ... deprive any person of life, liberty, or
property, without due process of law ....” U.S.Const.,
Art. XIV, sec. 1.
[6] [7] Public employment is a property right. Board of
Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d
548 (1972). Evidence obtained by the denial of due process
may not be used in the courts of this state.
In respect to Quade's case, where she was ill and in pain
during the interrogation, the language of the United States](https://image.slidesharecdn.com/oddsenv-221107171123-91262967/75/Oddsen-v-Board-of-Fire-and-Police-Comrs-for-City-of-Milwauke-docx-38-2048.jpg)
![Supreme Court in Malinski v. New York, 324 U.S. 401, 65
S.Ct. 781, 89 L.Ed.2d 1029 (1945), is appropriate. There,
the court, discussing the due process clause, stated that
that amendment to the constitution:
“... inescapably imposes upon this Court an exercise of
judgment upon the whole course of the proceedings in
order to ascertain whether they offend those canons of
decency and fairness which express the notions of justice
of English-speaking peoples even toward those charged
with the most heinous offenses.” At 416–17, 65 S.Ct. at
789–80.
*160 [8] [9] Clearly, the detention and interrogation of
Police Officer Quade was offensive to canons of decency
and fairness. It is shocking to the conscience of this court,
and it is shocking and almost inconceivable that a police
department would assume that it could maltreat its own
employees in a manner which it knows would not be
tolerated or approved by the courts, even were the object
of the interrogation a person accused of a heinous crime.
Due process, of course, is required, not merely for the
protection of the unfortunate victim of coercive police
tactics, but it is necessary to the integrity of the judicial
process. Due process is violated by coerced confessions,
because they are unreliable, and should not be allowed to
contribute to a finding of guilt in a court of law which
attempts to base its judgments on trustworthy and reliable
evidence. Moreover, where the tactics used are offensive
and outrage the public's sense of decency, it is society
and society's standards of fundamental fairness that are
offended. See, Brown v. Mississippi, 297 U.S. 278, 56 S.Ct.
461, 80 L.Ed. 682 (1936); Spano v. New York, 360 U.S. 315,
79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959). As Spano stated:
“The abhorrence of society to the use of involuntary](https://image.slidesharecdn.com/oddsenv-221107171123-91262967/75/Oddsen-v-Board-of-Fire-and-Police-Comrs-for-City-of-Milwauke-docx-39-2048.jpg)
![[10] Additionally, we conclude that both of these
discharges must be set aside, because the statements were
coerced and involuntary as a matter of law. It is apparently
the contention of the board that, because high fidelity
to duty is required of police officers, inquisitorial tactics
may be employed to determine their fidelity to duty
even though elementary constitutional rights which are
afforded to other citizens are bypassed. If truth can only
be obtained by the denial of rights, then our entire judicial
system, which is based upon affording due process and a
panoply of constitutional rights, is based upon a premise
doomed to failure.
[11] The argument is a familiar one—that a police officer
may be discharged for refusal in disciplinary proceedings
to testify as to his conduct as a police officer. See,
Spevack v. Klein, 385 U.S. 511, 519, 87 S.Ct. 625, 630,
17 L.Ed.2d 574 (1967); Garrity v. New Jersey, 385 U.S.
493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967). This is, of
course, a correct statement of the law, but it is misapplied
in the context of these cases. It has been recognized in
Garrity, supra, *162 and numerous other cases that a
public officer, a police officer, may be interrogated and
his refusal to respond can result in a discharge for that
very reason. Garrity pointed out, however, that, where
the interrogation concerns a matter which is criminal,
“The choice imposed on petitioners was one between self
incrimination or job forfeiture.” P. 496, 87 S.Ct. at p. 618.
Garrity pointed out that such coercion renders a statement
taken in such circumstances as being “infected by the
coercion inherent in this scheme of questioning and cannot
be sustained as voluntary ....” PP. 497–98, 87 S.Ct. at pp.
618–19.
It is clear that Garrity, quite aside from the use to which
the statements or confessions are to be put, recognizes the](https://image.slidesharecdn.com/oddsenv-221107171123-91262967/75/Oddsen-v-Board-of-Fire-and-Police-Comrs-for-City-of-Milwauke-docx-43-2048.jpg)
![inherent coercion in a situation where a police officer, on
one hand, can be fired for not answering and, on the other
hand, can be prosecuted if he answers and incriminates
himself. Garrity went on to resolve the particular problem
presented therein, where the coerced statement was sought
to be used in a subsequent prosecution. It held that, where
a police officer faces such a dilemma:
“[T]he protection ... against coerced statements
prohibits use in subsequent criminal proceedings of
statements obtained under threat of removal from
office, and that it extends to all, whether they are
policemen or other members of our body politic.” P.
500, 87 S.Ct. at p. 620.
[12] The representatives of the City of Milwaukee in this
case twist the meaning of Garrity by acknowledging that a
statement **172 taken under these circumstances cannot
be used in a criminal case because it is coercively violative
of the fifth amendment rights against self-incrimination,
but they then jump to the startling conclusion that it
is because it is excluded in a criminal prosecution that
the coerced and involuntary confession can be used for
other purposes. This is clearly incorrect. It is because the
confession *163 is coerced and involuntary that it cannot
be used for a criminal prosecution. The fact that it is not
used and cannot be used in a criminal prosecution does not
make it voluntary and trustworthy. As a matter of law, the
coerced, involuntary confessions here extracted may not,
under the circumstances, be used for any purpose.
Subsequent cases shed some light upon the scope and the
meaning of Garrity. In Confederation of Police v. Conlisk,
489 F.2d 891 (7th Cir. 1973), the United States Court of
Appeals considered a situation in which Chicago police
officers were questioned in respect to certain allegations](https://image.slidesharecdn.com/oddsenv-221107171123-91262967/75/Oddsen-v-Board-of-Fire-and-Police-Comrs-for-City-of-Milwauke-docx-44-2048.jpg)
![employee may or may not know of his rights to remain
silent and to avoid self-incrimination; and, even if he is
aware of that right, he almost certainly does not know
that, under Garrity, as a matter of law, his response cannot
be used against him *164 in a criminal case. Thus, the
philosophy of Conlisk is that the coercive power of job
forfeiture should not be employed unless it is made clear
that to speak will not result in criminal prosecution. The
Seventh Circuit Court summarizes its analysis by stating:
“In sum, then, the Gardner and Uniformed Sanitation
Men decisions indicate that a public employer may
discharge an employee for refusal to answer where
the employer both asks specific questions relating to
the employee's official duties and advises the employee
of the consequences of his choice, i.e., that failure to
answer will result in dismissal but that answers he gives
and fruits thereof cannot be used against him in criminal
proceedings.” P. 894.
In the Seventh Circuit case, because the police officers
were not informed that any information which they gave
could not be used against them in criminal proceedings,
their discharges were unconstitutional as a matter of law
under the rationale of Garrity, Gardner, and Uniformed
Sanitation Men.
[13] In the instant case, it is clear that both Oddsen and
Quade knew that they could be fired if they refused to
answer the questions. It is equally clear that they were
not told that, were they to speak, the statements they
gave could not be used against them in a prosecution
for adultery. Accordingly, the statements they gave were
barred as a matter of law. Absent the advice that they
could not be prosecuted on the basis of the statement
given, their statement was the product of a coercive choice.](https://image.slidesharecdn.com/oddsenv-221107171123-91262967/75/Oddsen-v-Board-of-Fire-and-Police-Comrs-for-City-of-Milwauke-docx-48-2048.jpg)
![They were truly between Scylla and Charybdis. If they
did not speak, they knew that they would be fired. If
they spoke, what they said could lead to prosecution, and
most likely, in any event, to conviction and dismissal from
their jobs. Absent the warning spelled out in Conlisk, these
coerced statements cannot be used. There is no necessity
for the police department **173 or anyone else to be
*165 given authority to grant immunity from criminal
prosecution. Immunity is conferred by operation of law
as determined by the United States Supreme Court in
Garrity. If a statement is taken under these conditions, i.e.,
a threat of job forfeiture, a defendant is given immunity
from prosecution, at least to the extent that the statement
could be the basis for the prosecution. Accordingly, in
the instant case, in order to prevent the statement being
excluded as a matter of law, where its purpose is discipline,
it was incumbent upon the interrogating police officers to
advise:
“... the employee of the consequences of his choice,
i.e., that failure to answer will result in dismissal but
that answers he gives and fruits thereof cannot be used
against him in criminal proceedings.” Conlisk, supra at
894.
McQuillin, 4 Municipal Corporations, sec. 12.242, pp. 292–
93, states in accord:
“[A]n employee may be dismissed
for refusal to answer where he
has been asked specific questions
relating to his official duties and has
been advised that the answers he
gives and the fruits thereof, cannot](https://image.slidesharecdn.com/oddsenv-221107171123-91262967/75/Oddsen-v-Board-of-Fire-and-Police-Comrs-for-City-of-Milwauke-docx-49-2048.jpg)
Oddsen v. Board of Fire and Police Comrs for City of Milwauke.docx
- 1. Oddsen v. Boardof Fire and Police Com'rs for City of Milwaukee, 108 Wis.2d 143 (1982) 321 N.W.2d 161 © 2018 Thomson Reuters. No claim to original U.S. Government Works. 1 KeyCite Yellow Flag - Negative Treatment Declined to Extend by Herek v. Police & Fire Com'n Village of Menomonee Falls, Wis.App., April 28, 1999 108 Wis.2d 143 Supreme Court of Wisconsin. Timothy J. ODDSEN, Plaintiff- Respondent-Petitioner, v. BOARD OF FIRE AND POLICE COMMISSIONERS FOR the CITY OF MILWAUKEE, Defendant-Appellant. In the Matter of the Appeal of Timothy J. ODDSEN. Timothy J. ODDSEN, Petitioner- Respondent-Petitioner, v.
- 2. BOARD OF FIREAND POLICE COMMISSIONERS FOR the CITY OF MILWAUKEE, Defendant-Appellant. Gail A. QUADE, Plaintiff-Appellant-Petitioner, v. BOARD OF FIRE AND POLICE COMMISSIONERS OF the CITY OF MILWAUKEE, Defendant-Respondent. STATE ex rel. Gail QUADE, Petitioner-Appellant-Petitioner, v. BOARD OF FIRE AND POLICE COMMISSIONERS OF the CITY OF MILWAUKEE, Respondent. Nos. 80–1726, 81–684. | Argued June 2, 1982. | Decided July 2, 1982. Synopsis An order of the board of fire and police commissioners discharging a female police officer was affirmed by the Milwaukee Circuit Court, William A. Jennaro, J., and the Court of Appeals, 105 Wis.2d 764, 318 N.W.2d 23, affirmed. An order of the board discharging a male officer, whose case arose out of the same incident, was affirmed by the Milwaukee Circuit Court, John E. McCormick, J., and the Court of Appeals, 103 Wis.2d 689, 309 N.W.2d 889,
- 3. affirmed. Upon grantingconsolidated review of the two decisions, the Supreme Court, Heffernan, J., held that the confessions extracted from two police officers, a male and a female officer who admitted having sexual intercourse with each other on three separate occasions, were, as a matter of fact and law, coerced, involuntary, the result of a denial of due process, and contrary to fundamental principles of decency and fair play; and without said confessions, there was no evidence whatsoever to support the discharge decisions of the board. Reversed and remanded, with directions. West Headnotes (13) [1] Municipal Corporations Evidence in general Municipal Corporations Sufficiency of evidence to support finding or decision Public Employment Admissions, declarations, and confessions Public Employment Removal, separation, termination, and discharge in general Confessions extracted from two police officers, a male and a female officer who
- 4. admitted having sexualintercourse with each other on three separate occasions, were, as a matter of fact and law, coerced, involuntary, the result of a denial of due process, and contrary to fundamental principles of decency and fair play; and without said confessions, there was no evidence whatsoever to support the discharge decisions of the board of fire and police commissioners. W.S.A. 62.50(13), 944.16; U.S.C.A.Const.Amend. 14. 6 Cases that cite this headnote [2] Municipal Corporations Evidence in general Public Employment Admissions, declarations, and confessions Statements which the police extracted from a female officer were coerced and involuntary, https://1.next.westlaw.com/Link/RelatedInformation/Flag?docu mentGuid=I6a26b0c8feb011d99439b076ef9ec4de&transitionTyp e=Document&originationContext=docHeaderFlag&contextData= (sc.UserEnteredCitation) https://1.next.westlaw.com/Document/I991f541dff3f11d983e7e9 deff98dc6f/View/FullText.html?navigationPath=RelatedInfo%2 Fv4%2Fkeycite%2Fnav%2F%3Fguid%3DI991f541dff3f11d983e 7e9deff98dc6f%26ss%3D1982130423%26ds%3D1999111200&li stSource=RelatedInfo&list=NegativeCitingReferences&rank=0 &originationContext=docHeader&transitionType=NegativeTreat ment&contextData=%28sc.UserEnteredCitation%29 https://1.next.westlaw.com/Document/I991f541dff3f11d983e7e9
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- 8. Government Works. 2 wherethey were the result of 14 hours of interrogation, during which time the officer complained of severe stomach pains and the vomiting of blood, where, during the interrogation, she was permitted to call her doctor four times to make appointments to see him, but each time, when the time for the appointment came, she was told by her interrogators that she could not see her doctor until they were finished with her, where she knew that her failure to respond to questions could result in her discharge, and where, after she wrote her initial statement, she was told she would have to write another report, one which would conform to what the police believed to be the truth. 3 Cases that cite this headnote [3] Municipal Corporations Evidence in general Public Employment Admissibility in general Superiors in a police force may question a subordinate and ask questions specifically, directly, and narrowly relating to the performance of his or her official duties, as distinguished from beliefs or other matters that are not within the scope of subordinate's specific duties. Cases that cite this headnote
- 9. [4] Municipal Corporations Evidencein general Public Employment Admissions, declarations, and confessions Failure to afford counsel to two police officers, who were being interrogated on the matter of whether they committed adultery with each other, was a coercive factor and contributed to the production of involuntary and coerced statements from both officers. 1 Cases that cite this headnote [5] Constitutional Law Protections Provided and Deprivations Prohibited in General Right of due process, which is constitutionally protected, is not limited to criminal matters. U.S.C.A.Const.Amend. 14. 4 Cases that cite this headnote [6] Constitutional Law Rights and Interests Protected in General Public employment is a property right. U.S.C.A.Const.Amend. 14. 2 Cases that cite this headnote
- 10. [7] Evidence Evidence wrongfullyobtained Evidence obtained by the denial of due process may not be used in the courts of Wisconsin. Cases that cite this headnote [8] Constitutional Law Procedural due process in general Due process is required not merely for the protection of unfortunate victims of coercive police tactics, but is also necessary for the integrity of the judicial process. U.S.C.A.Const.Amend. 14. Cases that cite this headnote [9] Constitutional Law Circumstances Under Which Made; Interrogation Due process is violated by coerced confessions, because they are unreliable and should not be allowed to contribute to a finding of guilt in a court of law which attempts to base its judgments on trustworthy and reliable evidence. U.S.C.A.Const.Amend. 14. Cases that cite this headnote [10] Municipal Corporations
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- 15. nContext=document&vr=3.0&rs=cblt1.0&transitionType=Docu mentItem&contextData=(sc.UserEnteredCitation) http://www.westlaw.com/Link/RelatedInformation/DocHeadnote Link?docGuid=I6a26b0c8feb011d99439b076ef9ec4de&headnote Id=198213042300920160222014354&originationContext=docu ment&vr=3.0&rs=cblt1.0&transitionType=CitingReferences&co ntextData=(sc.UserEnteredCitation) http://www.westlaw.com/Browse/Home/KeyNumber/268/View.h tml?docGuid=I6a26b0c8feb011d99439b076ef9ec4de&originatio nContext=document&vr=3.0&rs=cblt1.0&transitionType=Docu mentItem&contextData=(sc.UserEnteredCitation) http://www.westlaw.com/Browse/Home/KeyNumber/268k185(9) /View.html?docGuid=I6a26b0c8feb011d99439b076ef9ec4de&or iginationContext=document&vr=3.0&rs=cblt1.0&transitionType =DocumentItem&contextData=(sc.UserEnteredCitation) Oddsen v. Boardof Fire and Police Com'rs for City of Milwaukee, 108 Wis.2d 143 (1982) 321 N.W.2d 161 © 2018 Thomson Reuters. No claim to original U.S. Government Works. 3 Public Employment Admissibility in general Although high fidelity to duty is required of police officers, this does not mean that inquisitorial tactics may be employed to determine their fidelity to duty even though elementary constitutional rights which are afforded to other citizens are bypassed. 1 Cases that cite this headnote
- 16. [11] Municipal Corporations Groundsfor removal or suspension Public Employment Disobedience or insubordination A police officer may be discharged for refusal in a disciplinary proceeding to testify as to his conduct as a police officer. Cases that cite this headnote [12] Municipal Corporations Evidence in general Public Employment Admissions, declarations, and confessions As a matter of law, the coerced, involuntary confessions extracted from two police officers, who were suspected of having engaged in an adulterous relationship, could not, under the circumstances, be used for any purpose. 1 Cases that cite this headnote [13] Municipal Corporations Evidence in general Public Employment Admissions, declarations, and confessions
- 17. Where both policeofficers, suspected of having been involved in an adulterous relationship with each other, knew that they could be fired if they refused to answer questions, and where they were not told that, if they spoke, the statements they gave could not be used against them in a prosecution for adultery, the statements given by them were barred as a matter of law; absent advice that they could not be prosecuted on the basis of statements given, their statements were the product of a coercive choice. 3 Cases that cite this headnote Attorneys and Law Firms **163 *144 Bruce B. Jacobson, Milwaukee, argued, for plaintiff-petitioner in No. 80–1726; Piano, Duffy & Jacobson, Milwaukee, and Charles J. Rainey, River Hills, of counsel, on brief. Laurie A. Eggert, Madison, and Kenneth J. Murray, Milwaukee, for plaintiff-petitioner in No. 81–684; Richard D. Moake and Murray & Moake, S. C., attys., Milwaukee, on brief. Rudolph M. Konrad, Asst. City Atty., for defendant- appellant; James B. Brennan, City Atty., on brief. Opinion *145 HEFFERNAN, Justice.
- 18. We review twoseparate decisions of the court of appeals, 103 Wis.2d 689, 309 N.W.2d 889, 105 Wis.2d 764, 318 N.W.2d 23. Because the cases arose out of the same incident, present substantially the same questions of law and fact, and by direction of this court were argued on the same day, we consider it appropriate to consider the review of the decisions of the court of appeals in a single opinion. Both cases involve discharges of police officers of the city of Milwaukee. In each case, after interrogation in the police headquarters, the two police officers, Gail A. Quade, a female officer, and Timothy J. Oddsen, a male officer, confessed to sexual intercourse, each with the other, on three separate occasions. Following the interrogation, Chief Harold Breier of the Milwaukee Police Department directed the discharge of each of the officers, and pursuant to sec. 62.50(13), Stats., he filed a complaint with the Board of Fire and Police Commissioners setting forth the reasons for the discharge. In his notice to the board, he specifically stated that Gail Quade and Timothy J. Oddsen had failed to conform to the adultery statute, sec. 944.16, Stats. http://www.westlaw.com/Browse/Home/KeyNumber/316P/View. html?docGuid=I6a26b0c8feb011d99439b076ef9ec4de&originati onContext=document&vr=3.0&rs=cblt1.0&transitionType=Docu mentItem&contextData=(sc.UserEnteredCitation) http://www.westlaw.com/Browse/Home/KeyNumber/316Pk583/ View.html?docGuid=I6a26b0c8feb011d99439b076ef9ec4de&ori ginationContext=document&vr=3.0&rs=cblt1.0&transitionType =DocumentItem&contextData=(sc.UserEnteredCitation) http://www.westlaw.com/Link/RelatedInformation/DocHeadnote Link?docGuid=I6a26b0c8feb011d99439b076ef9ec4de&headnote Id=198213042301020160222014354&originationContext=docu ment&vr=3.0&rs=cblt1.0&transitionType=CitingReferences&co
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- 21. http://www.westlaw.com/Link/Document/FullText?findType=L &pubNum=1000260&cite=WIST62.50&originatingDoc=I6a26b0 c8feb011d99439b076ef9ec4de&refType=SP&originationContext =document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem &contextData=(sc.UserEnteredCitation)#co_pp_aac5000007ec7 http://www.westlaw.com/Link/Document/FullText?findType=L &pubNum=1000260&cite=WIST944.16&originatingDoc=I6a26b 0c8feb011d99439b076ef9ec4de&refType=LQ&originationConte xt=document&vr=3.0&rs=cblt1.0&transitionType=DocumentIte m&contextData=(sc.UserEnteredCitation) Oddsen v. Boardof Fire and Police Com'rs for City of Milwaukee, 108 Wis.2d 143 (1982) 321 N.W.2d 161 © 2018 Thomson Reuters. No claim to original U.S. Government Works. 4 Pursuant to the statutes, Gail A. Quade and Timothy J. Oddsen took separate appeals. The board conducted separate hearings and affirmed the chief's action in respect to each of the officers and directed their discharge. Appeal was then taken separately by each of the police officers to the circuit court for Milwaukee county. In respect to Gail A. Quade, the circuit court for Milwaukee county, WILLIAM A. JENNARO, Circuit Judge, affirmed the order of the Board of Fire and Police Commissioners by an order dated January 8, 1981. The court of appeals by unpublished opinion dated December 23, 1981, affirmed the order of the circuit court approving the discharge. Oddsen also took an appeal from the order of the Board of
- 22. Fire and PoliceCommissioners. Oddsen's case was *146 heard in the **164 circuit court for Milwaukee county, JOHN E. McCORMICK, Circuit Judge. That court on September 15, 1980, reversed the order of the Board of Fire and Police Commissioners. Appeal was taken by the board to the court of appeals. The court of appeals, by unpublished opinion dated June 23, 1981, reversed the circuit court and reinstated the discharge order of the Milwaukee Board of Fire and Police Commissioners. In respect to each of these cases we accepted review on petition of the police officers. We review the decisions of the court of appeals; and in each case, we reverse the court of appeals and direct the reinstatement of each of the police officers without prejudice and without loss of entitlement to pay for the period since discharge. The causes are remanded to the respective circuit courts for the purpose of calculating the pay to which each of the officers is now entitled, after making a determination of what earned income each of the officers has accrued during the period of suspension, which income, if any, shall be an offset against the liability of the city for the pay the officers would otherwise have accrued during the period that runs from the date of their discharge, April 11, 1978, to the date of reinstatement. [1] Numerous issues are posed in each of these cases. We find it unnecessary, however, to resolve all the issues, because we find controlling in each case the same dispositive issue—that the confessions extracted from Quade and Oddsen, as a matter of fact and law, were coerced, involuntary, the result of denial of due process, and contrary to fundamental principles of decency and fair play. Because we set aside each of these confessions in their entirety, there is no evidence whatsoever to support
- 23. the decision ofthe board; and, accordingly, we need not decide whether the board, in making its decision on the basis of the preponderance of the evidence, rather than upon the basis of clear and convincing evidence, committed *147 error in determining misconduct when the underlying conduct was alleged to be criminal. Here, there was no evidence in respect to the guilt of either Quade or Oddsen in the posture in which the Board of Fire and Police Commissioners decided the two cases other than that contained in the coerced confessions. It should be noted that no charge was filed in respect to any conduct at Officer Quade's house on March 22, 1978. All the charges stemmed from information revealed in the coerced confessions. We recount the facts as revealed by the record. Gail A. Quade was a woman police officer and, at the time of her discharge, had been an officer for approximately two and one-half years. She was twenty-three years of age. Timothy J. Oddsen had been with the force for approximately nine years. From the record it appears that each of them worked out of the same district headquarters, and on occasion Quade was assigned to duty with Oddsen. Officer Oddsen was single. Officer Quade was married to Richard Quade. The record indicates that the Quades were estranged. A divorce was contemplated, but the actual departure of Richard Quade from the couple's home had occurred only a day or two before the March 21–22 incident. On March 21, 1978, after Officer Quade completed the work of her shift at approximately 12 midnight, she invited several off-duty police officers to a party at her home. Oddsen was not invited by Quade, but was called by a fellow police officer and arrived later. By 5:30 a. m., all except Oddsen and Gail Quade had left the home. Those
- 24. two had breakfastin the early morning hours. According to the police records, Richard Quade, Gail's estranged husband, stopped at the house to see whether Gail needed anything. He said that he found Oddsen and Gail in bed. Richard Quade, who was not a police officer, went to the phone and called police headquarters and *148 used the code meaning “an officer needs assistance.” The response must have exceeded Richard Quade's wildest expectations, for within minutes 10 squad cars and at least 20 officers were at the Quade home. 1 At the time **165 the squad Oddsen v. Board of Fire and Police Com'rs for City of Milwaukee, 108 Wis.2d 143 (1982) 321 N.W.2d 161 © 2018 Thomson Reuters. No claim to original U.S. Government Works. 5 cars arrived, both Oddsen and Gail Quade were fully dressed. Shortly thereafter, at approximately 8 o'clock, Oddsen and Gail Quade were taken to the headquarters of the Fifth District, and each was separately interrogated by more senior officers. About the time the police arrived at the Quade home, Gail Quade became ill and vomited blood. She called her doctor and told him of her condition and made an appointment for that morning at 10 a. m. Upon arrival at District Station 5, she was questioned about her off-duty conduct. Although she told the sergeants who were interrogating her that she had made
- 25. an appointment withher own doctor, and although they knew that she was complaining about vomiting blood, she was not allowed to leave in order to keep the appointment with her own physician. She was instructed to submit to the investigation or be subject to further *149 charges. It is undisputed that she knew that her failure to answer questions could result in her discharge. At about 10 a. m. she gave a statement in which she admitted no wrongdoing. Under the scrutiny of her interrogators, she called her doctor again, telling him that she could not leave the police station, and a new appointment was made for 2:15 p. m. There is evidence in the record adduced at the hearing before the Board of Fire and Police Commissioners that indicates that, following her first statement, one of the interrogating officers tore up some of the sheets of Gail Quade's statement which he thought were false and kept those he considered useful. He indicated to her that she would stay there until she gave the information which the interrogators thought to be truthful. At around 10 a. m., Quade again vomited blood, and she reported this to Sergeant Parys. At about 2 p. m., Quade was taken to the First District Central Police Headquarters; and there, apparently, Lieutenant Starke took charge of the interrogation. He was told by either Sgt. Parys or Sgt. Eccher that Quade was spitting up blood. Quade told Starke that she had an appointment with her physician at 2:15 p. m., but when she asked Lt. Starke for permission to see her own physician, he said, “We're not through with you yet. When we're done, you can go.” Lt. Starke, however, allowed Quade to call her doctor. Her conversations with her physician were always made
- 26. in the presenceof one or more of the interrogating police officers. She told her physician that she had continued to vomit blood, had very severe stomach pains, and was very nervous and upset. Her doctor then said he would see her later in the afternoon if she at that time would be able to leave the police headquarters. At or about the time of this phone call, Lt. Starke told Quade that, if she wanted to go to a hospital or see a doctor, he would stop the interrogation. He said at the hearing before the Board of Fire and Police Commissioners that he was *150 very conscious of her physical condition. Quade told Starke that she wished to see her own doctor. It was very clear from the testimony that, at no time, did Lt. Starke acquiesce in Quade's request to see her personal physician, who was familiar with her condition. He merely said that she could go to a hospital or see a doctor. He stated that she could see her own doctor when the police were finished with her. Quade testified that she vomited during the afternoon, and she said that she had **166 severe stomach pain during the entire period of questioning. At 5:45 p. m., after approximately ten hours of questioning, Quade gave a statement in which she admitted to having intercourse with Police Officer Oddsen while off duty. During the course of the taking of a verbatim statement at about 5:45 or 6 o'clock, Quade denied having intercourse with Oddsen that morning. She did admit, however, to having intercourse on three earlier dates. Lt. Starke asked such “narrow” job-related questions during the course of this interview as, “During any of these affairs, did Oddsen use protection,” “Did you have any contraceptives or a pill,” and “Could there have
- 27. been a possibilityof your becoming pregnant.” 2 After being questioned for twelve hours, Quade was allowed to leave shortly after 7 p. m. While she was on her way home, being driven by police sergeants, they were ordered to return her to the central police administration offices. She was returned for a purpose that is not made clear in the record nor was it made clear to her. She was finally permitted to return home after fourteen hours of custody and confinement. [2] Accordingly, the statements which the police officers extracted from Quade were the result of approximately *151 fourteen hours of interrogation, during which time Quade complained of severe stomach pains and Oddsen v. Board of Fire and Police Com'rs for City of Milwaukee, 108 Wis.2d 143 (1982) 321 N.W.2d 161 © 2018 Thomson Reuters. No claim to original U.S. Government Works. 6 the vomiting of blood. During the interrogation she was permitted to call her doctor four times to make appointments to see him; but each time, when the time for the appointment came, she was told by the interrogators that she could not see her doctor until they were finished with her. Officer Quade knew that her failure to respond to the questions could result in her discharge; and when she wrote her initial statement, she was told she would have to write another report—a report which would conform
- 28. to what thepolice officers believed to be the truth—unless she wished to be subjected to additional discipline. At the time Oddsen and Quade were brought to police headquarters, Oddsen asked for a lawyer or a representative of the policemen's union to be present during the interrogation. In Quade's hearing before the Board of Fire and Police Commissioners, Oddsen stated this request was made not only for himself but also for Officer Quade. Officer Quade did not ask for a lawyer or a representative of the policemen's union until late in the afternoon, and that request was denied. Although it was made clear to Officer Quade that their interrogation focused upon adultery, at no time was she told of her fifth amendment rights against self-incrimination nor was she told that any statements she might give during an interrogation under the duress of possible job loss for failure to answer could not be used in a criminal proceeding. Oddsen was brought to the police headquarters at the same time as Gail Quade. He immediately asked, as recounted above, for a lawyer or representative of the union. This request was denied. Oddsen told the interrogating officers that he was extremely tired, that he had not slept for two nights, and it was his assertion near the end of the interrogation that he had not slept for forty-seven hours. Nevertheless, he was directed to write a report of the morning incident. *152 At 9 a. m., Oddsen wrote a report which his interrogators believed to be untruthful, and he was told that he would be punished for filing an untruthful report. In the first statement given, he denied that he had ever had sexual intercourse with Officer Quade.
- 29. After writing thisinitial report, Oddsen again requested representation, which was again denied. He was told that, if he left without satisfying his interrogators, he would face additional disciplinary action. Early in the afternoon, Oddsen was taken to the downtown police headquarters, where he was told by Lt. Starke he would have to give a **167 statement. Again his request for counsel or representation was denied. Oddsen stated that he was physically and mentally exhausted and unable to answer any more questions. Nevertheless, he was directed to write additional statements. At the hearing before the Board of Fire and Police Commissioners, Lt. Starke was asked about the conditions surrounding Oddsen's interrogation at central headquarters. He stated that Oddsen alleged that he had been without sleep for forty-seven hours, but he said he examined Oddsen closely and felt that he was coherent in his answers. He acknowledged that Oddsen, despite the request, was not allowed counsel, and he asserted that his purpose for interrogation was merely an employee investigatory matter and that, had a felony charge for adultery been contemplated, the interrogation would have been by the vice squad. He did say, however, that he was aware that a felony charge for adultery could result. He acknowledged that Oddsen was told that he would not be allowed to leave until he satisfactorily responded in a stenographically reported verbatim statement. Oddsen contended that, during the period of time he was at the police headquarters, from approximately 8 in the morning to 8:45 at night, he was not offered any food, and the only thing he had to drink was a cup of coffee at about 10 a. m. During this period, during a respite *153 in his interrogation, he said he saw Gail Quade go into
- 30. a washroom andheard her vomit. He stated that, before each statement was requested of him, he asked for counsel. He was denied the right to make any phone calls. Lt. Starke testified before the board that, in fact, Oddsen was offered food. Oddsen told the commissioners, however, that he was offered food so late in the day that at that point he was not interested in food and could not have eaten. The verbatim stenographically reported statement of Oddsen was given in response to Lt. Starke' questions at about 6 p. m. Officer Oddsen was asked about what happened that morning at the residence of Police Officer Gail Quade. Officer Oddsen responded by saying that he had not had any sleep for forty-eight hours and he would like someone present from the union to represent him, either one of the officers of the union or Attorney Kenneth Murray, the legal representative of the police Oddsen v. Board of Fire and Police Com'rs for City of Milwaukee, 108 Wis.2d 143 (1982) 321 N.W.2d 161 © 2018 Thomson Reuters. No claim to original U.S. Government Works. 7 officers union. He was told that the rules did not allow representation. Officer Oddsen stated that he knew that he was bound by the rules of his employment to answer questions put to him. He denied having intercourse that morning with Officer
- 31. Quade, but finallyhe did admit to having intercourse with her on three occasions, the first being on Christmas Eve of 1977. Two other instances of intercourse were acknowledged. With the same assiduity for probing into facts that narrowly and directly are within the scope of official duties of subordinate officers that he displayed in interrogation of Officer Quade, Lt. Starke asked Oddsen, “Any sodomy?” Oddsen was released at about 8:45 p. m., after being questioned in excess of thirteen hours. While the two police officers were being interrogated, an identification squad was sent to the Quade home in *154 an attempt to determine whether Oddsen's fingerprints could be found in the bedroom or bathroom. No fingerprint identification was made. However, a T-shirt was found in the bedroom, which Oddsen acknowledged was his. During the course of his interrogation, although denying intercourse with Gail Quade on that day, he admitted that, because of his fatigue, he had gone to bed wearing only his undershorts and socks and had slept only about fifteen minutes prior to the advent of the indignant Mr. Quade. During the entire interrogation of Oddsen, it was clear that the investigation was centered on whether Oddsen and Quade had committed adultery. Oddsen, like Quade, knew, and in fact was told, that the failure to answer questions truthfully could result in being discharged from the police force. Oddsen, like Quade, knew that the commission of the sexual acts could result in criminal **168 prosecution. During the course of these interrogations, neither of them was told that they had a right not to incriminate themselves, nor were they told that, were they to make a statement under the duress
- 32. of the possibilityof losing their jobs, they were afforded immunity from prosecution by operation of law. The record at the hearing before the Board of Fire and Police Commissioners shows that, on the basis of the statements given by the accused officers, the police department attempted to have the district attorney's office commence prosecution for adultery against both Quade and Oddsen. This, the district attorney's office refused to do. During the course of the hearing before the board in respect to Oddsen, the deputy district attorney testified that adultery was not being prosecuted by the district attorney's office. Following the taking of these statements from Oddsen and Quade, Chief Breier discharged both of them, and each took separate appeals to the Board of Fire and Police Commissioners. The complaint against Oddsen *155 by Chief Breier alleged that Oddsen violated department rules which require that: “Members of the police force ... shall conform to, abide by and enforce all the criminal laws of the State of Wisconsin and the ordinances of the City of Milwaukee of which the Department must take cognizance ....” Because Officer Oddsen had engaged in intercourse with Gail Quade, Chief Breier alleged that the dismissal of Oddsen from the department was required. The complaint against Quade was similar in that it alleged that Officer Quade engaged in sexual intercourse with
- 33. Oddsen. In addition,it alleged that, on New Year's Eve, January 1, 1978, she had knowledge of an unauthorized party at the Police Academy and failed to notify her commanding officer. This, the chief of police alleged, subjected Gail Quade to discipline for disobedience of orders. This latter allegation on the face of Breier's complaint is insufficient, because there is not even an assertion that the alleged conduct was in violation of a rule or in violation of an order. The only allegation is that there was no authorization for the party. Moreover, the only proof in respect to Quade's knowledge of the New Year's Eve party or her conduct in respect thereto is contained in her statement given under duress. Numerous issues were addressed in both appeals to the Board of Fire and Police Commissioners. The only evidence of misconduct before the board in respect to either Quade or Oddsen was derived from the statements taken during their interrogation on March 22. We conclude that all of the information thus adduced was involuntary, coerced, in violation of their constitutional Oddsen v. Board of Fire and Police Com'rs for City of Milwaukee, 108 Wis.2d 143 (1982) 321 N.W.2d 161 © 2018 Thomson Reuters. No claim to original U.S. Government Works. 8 rights of due process, and, accordingly, was untrustworthy and required to be excluded from the evidence. [3] It is, of course, the law that superiors in a police force
- 34. may question asubordinate and ask: “... questions specifically, directly, and narrowly relating to the performance of his official duties as distinguished *156 from his beliefs or other matters that are not within the scope of the specific duties ....” Spevack v. Klein, 385 U.S. 511, 519, 87 S.Ct. 625, 630, 17 L.Ed.2d 574 (1967), Fortas concurring. At the very outset, one who peruses the record is struck by the fact that the accused police officers here involved were off duty and, in fact, are referred to in the brief of the Board of Fire and Police Commissioners as “off-duty police officers.” Moreover, the questioning that ensued was not confined narrowly, directly, and specifically to matters within the scope of the specific duties of the officers. Questions directed to whether the parties used contraception, whether pregnancy was likely to ensue, or how the sexual acts were performed are not the questions that can be asked by a public employer. Rather, under the circumstances here, they smack of the salacious inquisitiveness of a “nosey parker.” We, however, do not base our conclusion that both cases must be thrown out on the ground that the **169 police superiors invaded the constitutional rights of privacy of their subordinates. Rather, we conclude that the entire course of questioning of both officers was coercive as a matter of fact and as a matter of law and resulted in involuntary statements. It is apparent that neither investigation was properly termed investigatory. They were accusatory. From the very beginning, it was apparent that the questioning police officers were directing their attention to Oddsen and Quade as likely suspects of adulterous conduct. Their purpose was not merely investigatory but was to sew up and confirm their preconceptions of guilt for punitive
- 35. purposes, whether thosepurposes be criminal prosecution or the imposition of penalties under the rules of the police department. 3 *157 In both cases, Officers Quade and Oddsen were denied counsel. In respect to Oddsen, the Board of Fire and Police Commissioners made a specific finding that there was a “conscientious” denial of counsel. No such finding was made in respect to Quade, but the evidence adduced at her hearing showed, at the very outset of the interrogation, Oddsen requested counsel for himself and for Quade. Also, it is undisputed that Quade requested counsel before her verbatim stenographic statement was elicited. If there were a constitutional right to counsel clearly spelled out, or a statutory right to counsel, the denial of counsel would end the controversy and result in a dismissal of the charges. Here, the city contends, there is no right to counsel. Conceding, arguendo, that may be true, that does not mean that the lack of counsel here did not contribute substantially to the totality of coercive circumstances. [4] We conclude that the failure to afford counsel was a coercive factor and contributed to the production of involuntary and coerced statements from both officers. 4 Additionally, both of the police officers knew that they were obliged to answer questions or possibly forfeit the property rights in their employment. They were conveyed to the police station in a squad car and were under close supervision for the rest of the day. Both of them were in the coercive atmosphere of the police station. The coerciveness of these surroundings upon one who is not
- 36. a police personhas been recognized in Miranda v. *158 Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The coercive character of those surroundings is perhaps even clearer to a police officer who is familiar with the techniques of police interrogation. Both of the parties stated they were fatigued. Oddsen stated that he had not slept for forty-seven hours, although there is evidence that, during that period, he did have a short period of rest. Quade stated that she had not slept for twenty-four hours. Each of them gave one or more statements which the interrogators concluded were unsatisfactory, and it was made clear that neither would be released until they gave a statement which satisfied the interrogators' conception of what was the truth. Oddsen alleged he had no food during his approximately thirteen to fourteen hours of interrogation, and when he was offered food, it was so late in the day that he could not eat. Quade was there for a period of fourteen hours and was given no food, and the first statement that she gave was in part torn up by the interrogating sergeant; and there is substantial evidence in the record of the board which could lead a reasonable finder of facts to conclude that the portion of the **170 first statement was pieced together http://www.westlaw.com/Link/Document/FullText?findType=Y &serNum=1967105698&pubNum=0000708&originatingDoc=I6a 26b0c8feb011d99439b076ef9ec4de&refType=RP&fi=co_pp_sp_ 708_630&originationContext=document&vr=3.0&rs=cblt1.0&tr ansitionType=DocumentItem&contextData=(sc.UserEnteredCita tion)#co_pp_sp_708_630 http://www.westlaw.com/Link/Document/FullText?findType=Y &serNum=1967105698&pubNum=0000708&originatingDoc=I6a 26b0c8feb011d99439b076ef9ec4de&refType=RP&fi=co_pp_sp_ 708_630&originationContext=document&vr=3.0&rs=cblt1.0&tr ansitionType=DocumentItem&contextData=(sc.UserEnteredCita
- 37. tion)#co_pp_sp_708_630 http://www.westlaw.com/Link/Document/FullText?findType=Y &serNum=1966131580&pubNum=0000708&originatingDoc=I6a 26b0c8feb011d99439b076ef9ec4de&refType=RP&originationCo ntext=document&vr=3.0&rs=cblt1.0&transitionType=Document Item&contextData=(sc.UserEnteredCitation) http://www.westlaw.com/Link/Document/FullText?findType=Y &serNum=1966131580&pubNum=0000708&originatingDoc=I6a 26b0c8feb011d99439b076ef9ec4de&refType=RP&originationCo ntext=document&vr=3.0&rs=cblt1.0&transitionType=Document Item&contextData=(sc.UserEnteredCitation) http://www.westlaw.com/Link/Document/FullText?findType=Y &serNum=1966131580&pubNum=0000708&originatingDoc=I6a 26b0c8feb011d99439b076ef9ec4de&refType=RP&originationCo ntext=document&vr=3.0&rs=cblt1.0&transitionType=Document Item&contextData=(sc.UserEnteredCitation) Oddsen v. Boardof Fire and Police Com'rs for City of Milwaukee, 108 Wis.2d 143 (1982) 321 N.W.2d 161 © 2018 Thomson Reuters. No claim to original U.S. Government Works. 9 with a portion of a later statement in order to present a narrative that was to the satisfaction of the interrogators. In respect to Officer Oddsen, it is clear that the principal most coercive factor was his lack of sleep, to which he referred repeatedly. During the course of interrogation, Officer Quade made four appointments to see her doctor. The time of each appointment was known to her interrogators. Yet, they
- 38. refused to allowher to see her own doctor, who was familiar with her case. They did agree that they would take her to a hospital and have her seen by a doctor, but it was very clear that they were denying her medical attention from her own physician. Much is made by the city of the fact that, upon Lt. Starke's question, “Do you *159 wish medical attention at this time,” Quade responded, “No, I'll wait.” However, Quade had just stated that she was experiencing discomfort. Moreover, this statement was taken at 5:45 p. m., after approximately ten hours of questioning, and it was at a time when Officer Quade had finally given a preliminary statement that satisfied her inquisitors. She had already stated that she had indulged in sexual intercourse with Oddsen. The police had told her that when she finished her statement she would be released. It is rather obvious why at this point, with release imminent, she did not demand immediate medical attention. Cruelly enough, even after this statement was completed, she was kept in custody for approximately another three hours. [5] The right of due process, which is constitutionally protected, is not limited to criminal matters. Our constitution provides: “No State shall ... deprive any person of life, liberty, or property, without due process of law ....” U.S.Const., Art. XIV, sec. 1. [6] [7] Public employment is a property right. Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Evidence obtained by the denial of due process may not be used in the courts of this state. In respect to Quade's case, where she was ill and in pain during the interrogation, the language of the United States
- 39. Supreme Court inMalinski v. New York, 324 U.S. 401, 65 S.Ct. 781, 89 L.Ed.2d 1029 (1945), is appropriate. There, the court, discussing the due process clause, stated that that amendment to the constitution: “... inescapably imposes upon this Court an exercise of judgment upon the whole course of the proceedings in order to ascertain whether they offend those canons of decency and fairness which express the notions of justice of English-speaking peoples even toward those charged with the most heinous offenses.” At 416–17, 65 S.Ct. at 789–80. *160 [8] [9] Clearly, the detention and interrogation of Police Officer Quade was offensive to canons of decency and fairness. It is shocking to the conscience of this court, and it is shocking and almost inconceivable that a police department would assume that it could maltreat its own employees in a manner which it knows would not be tolerated or approved by the courts, even were the object of the interrogation a person accused of a heinous crime. Due process, of course, is required, not merely for the protection of the unfortunate victim of coercive police tactics, but it is necessary to the integrity of the judicial process. Due process is violated by coerced confessions, because they are unreliable, and should not be allowed to contribute to a finding of guilt in a court of law which attempts to base its judgments on trustworthy and reliable evidence. Moreover, where the tactics used are offensive and outrage the public's sense of decency, it is society and society's standards of fundamental fairness that are offended. See, Brown v. Mississippi, 297 U.S. 278, 56 S.Ct. 461, 80 L.Ed. 682 (1936); Spano v. New York, 360 U.S. 315, 79 S.Ct. 1202, 3 L.Ed.2d 1265 (1959). As Spano stated: “The abhorrence of society to the use of involuntary
- 40. confessions does notturn alone on their inherent untrustworthiness. It also turns on the deep-rooted **171 feeling that the police must obey the law while enforcing the law; that in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves.” At 320, 79 S.Ct. at 1205. We find the coercive tactics used in respect to Oddsen only slightly less offensive than those used in respect to Officer Quade. We find them less offensive, not because he is a male officer and she is a female officer, but because, clearly, she was ill at the time and, irrespective of sex, was entitled to solicitude, which was not afforded her. *161 We find in respect to each of them that the circumstances of their interrogation, when considered in their totality, were coercive and rendered the http://www.westlaw.com/Link/Document/FullText?findType=Y &serNum=1972127192&pubNum=0000708&originatingDoc=I6a 26b0c8feb011d99439b076ef9ec4de&refType=RP&originationCo ntext=document&vr=3.0&rs=cblt1.0&transitionType=Document Item&contextData=(sc.UserEnteredCitation) http://www.westlaw.com/Link/Document/FullText?findType=Y &serNum=1972127192&pubNum=0000708&originatingDoc=I6a 26b0c8feb011d99439b076ef9ec4de&refType=RP&originationCo ntext=document&vr=3.0&rs=cblt1.0&transitionType=Document Item&contextData=(sc.UserEnteredCitation) http://www.westlaw.com/Link/Document/FullText?findType=Y &serNum=1972127192&pubNum=0000708&originatingDoc=I6a 26b0c8feb011d99439b076ef9ec4de&refType=RP&originationCo ntext=document&vr=3.0&rs=cblt1.0&transitionType=Document Item&contextData=(sc.UserEnteredCitation) http://www.westlaw.com/Link/Document/FullText?findType=Y
- 41.
- 42. http://www.westlaw.com/Link/Document/FullText?findType=Y &serNum=1959104138&pubNum=0000708&originatingDoc=I6a 26b0c8feb011d99439b076ef9ec4de&refType=RP&originationCo ntext=document&vr=3.0&rs=cblt1.0&transitionType=Document Item&contextData=(sc.UserEnteredCitation) http://www.westlaw.com/Link/Document/FullText?findType=Y &serNum=1959104138&pubNum=0000708&originatingDoc=I6a 26b0c8feb011d99439b076ef9ec4de&refType=RP&fi=co_pp_sp_ 708_1205&originationContext=document&vr=3.0&rs=cblt1.0&t ransitionType=DocumentItem&contextData=(sc.UserEnteredCit ation)#co_pp_sp_708_1205 Oddsen v. Boardof Fire and Police Com'rs for City of Milwaukee, 108 Wis.2d 143 (1982) 321 N.W.2d 161 © 2018 Thomson Reuters. No claim to original U.S. Government Works. 10 statements unreliable, untrustworthy, and involuntary, and, above all, the products of the denial of due process. While in each case the Board of Fire and Police Commissioners purported to find the statements voluntary, an examination of the record makes it clear that the facts to the contrary are overwhelming. Giving full credence to the statements of the interrogators, it is apparent that the expressed attitude of the interrogating police officers and their conduct in light of the circumstances demonstrate beyond a reasonable doubt that the statements were of such a nature that to permit their use in the denial of a property right would contravene the constitutional protections of the fourteenth amendment.
- 43. [10] Additionally, weconclude that both of these discharges must be set aside, because the statements were coerced and involuntary as a matter of law. It is apparently the contention of the board that, because high fidelity to duty is required of police officers, inquisitorial tactics may be employed to determine their fidelity to duty even though elementary constitutional rights which are afforded to other citizens are bypassed. If truth can only be obtained by the denial of rights, then our entire judicial system, which is based upon affording due process and a panoply of constitutional rights, is based upon a premise doomed to failure. [11] The argument is a familiar one—that a police officer may be discharged for refusal in disciplinary proceedings to testify as to his conduct as a police officer. See, Spevack v. Klein, 385 U.S. 511, 519, 87 S.Ct. 625, 630, 17 L.Ed.2d 574 (1967); Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562 (1967). This is, of course, a correct statement of the law, but it is misapplied in the context of these cases. It has been recognized in Garrity, supra, *162 and numerous other cases that a public officer, a police officer, may be interrogated and his refusal to respond can result in a discharge for that very reason. Garrity pointed out, however, that, where the interrogation concerns a matter which is criminal, “The choice imposed on petitioners was one between self incrimination or job forfeiture.” P. 496, 87 S.Ct. at p. 618. Garrity pointed out that such coercion renders a statement taken in such circumstances as being “infected by the coercion inherent in this scheme of questioning and cannot be sustained as voluntary ....” PP. 497–98, 87 S.Ct. at pp. 618–19. It is clear that Garrity, quite aside from the use to which the statements or confessions are to be put, recognizes the
- 44. inherent coercion ina situation where a police officer, on one hand, can be fired for not answering and, on the other hand, can be prosecuted if he answers and incriminates himself. Garrity went on to resolve the particular problem presented therein, where the coerced statement was sought to be used in a subsequent prosecution. It held that, where a police officer faces such a dilemma: “[T]he protection ... against coerced statements prohibits use in subsequent criminal proceedings of statements obtained under threat of removal from office, and that it extends to all, whether they are policemen or other members of our body politic.” P. 500, 87 S.Ct. at p. 620. [12] The representatives of the City of Milwaukee in this case twist the meaning of Garrity by acknowledging that a statement **172 taken under these circumstances cannot be used in a criminal case because it is coercively violative of the fifth amendment rights against self-incrimination, but they then jump to the startling conclusion that it is because it is excluded in a criminal prosecution that the coerced and involuntary confession can be used for other purposes. This is clearly incorrect. It is because the confession *163 is coerced and involuntary that it cannot be used for a criminal prosecution. The fact that it is not used and cannot be used in a criminal prosecution does not make it voluntary and trustworthy. As a matter of law, the coerced, involuntary confessions here extracted may not, under the circumstances, be used for any purpose. Subsequent cases shed some light upon the scope and the meaning of Garrity. In Confederation of Police v. Conlisk, 489 F.2d 891 (7th Cir. 1973), the United States Court of Appeals considered a situation in which Chicago police officers were questioned in respect to certain allegations
- 45. of criminal conspiracyand corruption. The police officers in that case were warned by the United States Attorney that anything they said could be used against them. They were also aware of the fact that they could be discharged if they did not make a statement. In each case the police officers, upon the advice of counsel, invoked the privilege and declined to answer. They were discharged as a result of their failure to respond. The circuit court of the Seventh Circuit analyzed the Garrity case, supra, Spevack v. Klein, supra, Gardner v. Broderick, 392 U.S. 273, 88 S.Ct. 1913, 20 L.Ed.2d 1082 (1968), and Uniformed Sanitation Men Association, Inc., v. Commissioner of Sanitation, 392 http://www.westlaw.com/Link/Document/FullText?findType=Y &serNum=1967105698&pubNum=0000708&originatingDoc=I6a 26b0c8feb011d99439b076ef9ec4de&refType=RP&fi=co_pp_sp_ 708_630&originationContext=document&vr=3.0&rs=cblt1.0&tr ansitionType=DocumentItem&contextData=(sc.UserEnteredCita tion)#co_pp_sp_708_630 http://www.westlaw.com/Link/Document/FullText?findType=Y &serNum=1967105698&pubNum=0000708&originatingDoc=I6a 26b0c8feb011d99439b076ef9ec4de&refType=RP&fi=co_pp_sp_ 708_630&originationContext=document&vr=3.0&rs=cblt1.0&tr ansitionType=DocumentItem&contextData=(sc.UserEnteredCita tion)#co_pp_sp_708_630 http://www.westlaw.com/Link/Document/FullText?findType=Y &serNum=1967129459&pubNum=0000708&originatingDoc=I6a 26b0c8feb011d99439b076ef9ec4de&refType=RP&originationCo ntext=document&vr=3.0&rs=cblt1.0&transitionType=Document Item&contextData=(sc.UserEnteredCitation) http://www.westlaw.com/Link/Document/FullText?findType=Y &serNum=1967129459&pubNum=0000708&originatingDoc=I6a 26b0c8feb011d99439b076ef9ec4de&refType=RP&originationCo ntext=document&vr=3.0&rs=cblt1.0&transitionType=Document Item&contextData=(sc.UserEnteredCitation) http://www.westlaw.com/Link/Document/FullText?findType=Y
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- 47. ntext=document&vr=3.0&rs=cblt1.0&transitionType=Document Item&contextData=(sc.UserEnteredCitation) http://www.westlaw.com/Link/Document/FullText?findType=Y &serNum=1968131214&pubNum=0000708&originatingDoc=I6a 26b0c8feb011d99439b076ef9ec4de&refType=RP&originationCo ntext=document&vr=3.0&rs=cblt1.0&transitionType=Document Item&contextData=(sc.UserEnteredCitation) http://www.westlaw.com/Link/Document/FullText?findType=Y &serNum=1968131215&pubNum=0000708&originatingDoc=I6a 26b0c8feb011d99439b076ef9ec4de&refType=RP&originationCo ntext=document&vr=3.0&rs=cblt1.0&transitionType=Document Item&contextData=(sc.UserEnteredCitation) http://www.westlaw.com/Link/Document/FullText?findType=Y &serNum=1968131215&pubNum=0000708&originatingDoc=I6a 26b0c8feb011d99439b076ef9ec4de&refType=RP&originationCo ntext=document&vr=3.0&rs=cblt1.0&transitionType=Document Item&contextData=(sc.UserEnteredCitation) Oddsen v. Boardof Fire and Police Com'rs for City of Milwaukee, 108 Wis.2d 143 (1982) 321 N.W.2d 161 © 2018 Thomson Reuters. No claim to original U.S. Government Works. 11 U.S. 280, 88 S.Ct. 1917, 20 L.Ed.2d 1089 (1968). The Seventh Circuit Court of Appeals held that the firing of the Chicago police officers in these circumstances was unconstitutional. The Conlisk case points out that, merely to relieve a police officer, after the fact, of the possibility of prosecution, does not solve the dilemma with which he is faced while undergoing interrogation. The exclusion of the statement in a criminal proceeding is nothing more than the exclusion of a coerced statement. In the first place, the
- 48. employee may ormay not know of his rights to remain silent and to avoid self-incrimination; and, even if he is aware of that right, he almost certainly does not know that, under Garrity, as a matter of law, his response cannot be used against him *164 in a criminal case. Thus, the philosophy of Conlisk is that the coercive power of job forfeiture should not be employed unless it is made clear that to speak will not result in criminal prosecution. The Seventh Circuit Court summarizes its analysis by stating: “In sum, then, the Gardner and Uniformed Sanitation Men decisions indicate that a public employer may discharge an employee for refusal to answer where the employer both asks specific questions relating to the employee's official duties and advises the employee of the consequences of his choice, i.e., that failure to answer will result in dismissal but that answers he gives and fruits thereof cannot be used against him in criminal proceedings.” P. 894. In the Seventh Circuit case, because the police officers were not informed that any information which they gave could not be used against them in criminal proceedings, their discharges were unconstitutional as a matter of law under the rationale of Garrity, Gardner, and Uniformed Sanitation Men. [13] In the instant case, it is clear that both Oddsen and Quade knew that they could be fired if they refused to answer the questions. It is equally clear that they were not told that, were they to speak, the statements they gave could not be used against them in a prosecution for adultery. Accordingly, the statements they gave were barred as a matter of law. Absent the advice that they could not be prosecuted on the basis of the statement given, their statement was the product of a coercive choice.
- 49. They were trulybetween Scylla and Charybdis. If they did not speak, they knew that they would be fired. If they spoke, what they said could lead to prosecution, and most likely, in any event, to conviction and dismissal from their jobs. Absent the warning spelled out in Conlisk, these coerced statements cannot be used. There is no necessity for the police department **173 or anyone else to be *165 given authority to grant immunity from criminal prosecution. Immunity is conferred by operation of law as determined by the United States Supreme Court in Garrity. If a statement is taken under these conditions, i.e., a threat of job forfeiture, a defendant is given immunity from prosecution, at least to the extent that the statement could be the basis for the prosecution. Accordingly, in the instant case, in order to prevent the statement being excluded as a matter of law, where its purpose is discipline, it was incumbent upon the interrogating police officers to advise: “... the employee of the consequences of his choice, i.e., that failure to answer will result in dismissal but that answers he gives and fruits thereof cannot be used against him in criminal proceedings.” Conlisk, supra at 894. McQuillin, 4 Municipal Corporations, sec. 12.242, pp. 292– 93, states in accord: “[A]n employee may be dismissed for refusal to answer where he has been asked specific questions relating to his official duties and has been advised that the answers he gives and the fruits thereof, cannot
- 50. be used againsthim in criminal proceedings.” Because such admonitions were not given here, the statement is coercive and involuntary as a matter of law. It was a statement given under duress and compulsion with no opportunity to weigh the consequences of answering or not answering. Accordingly, even were the conduct of the police interrogators in this case not as gross and degrading as the record shows it to be, the statements must be excluded as a matter of law. In the absence of these statements, there was no proof whatsoever that either Oddsen or Quade had indulged in the conduct alleged. Moreover, the additional charge *166 brought against Quade that she failed to report an unauthorized party at the Police Academy is also dependent upon her own statement and must be disregarded for the same reason. Independent corroboration was so tenuous as to be devoid of any probative value whatsoever. http://www.westlaw.com/Link/Document/FullText?findType=Y &serNum=1968131215&pubNum=0000708&originatingDoc=I6a 26b0c8feb011d99439b076ef9ec4de&refType=RP&originationCo ntext=document&vr=3.0&rs=cblt1.0&transitionType=Document Item&contextData=(sc.UserEnteredCitation) Oddsen v. Board of Fire and Police Com'rs for City of Milwaukee, 108 Wis.2d 143 (1982) 321 N.W.2d 161 © 2018 Thomson Reuters. No claim to original U.S. Government Works. 12
- 51. Because we havedecided each of these cases on what are basically due process grounds, which exclude the only proof put forward by the chief of police, we reverse and order the reinstatement of Officer Quade and Officer Oddsen pursuant to sec. 62.50 (21), Stats., and remand to the circuit court for purposes of computing past due wages for each of these police officers. Our focusing, however, on the due process deficiencies of the interrogation procedure does not mean that we validate or accept other contentions made by the city Board of Fire and Police Commissioners on this review. We have directed our attention solely to the question of proof, and we find there was none. Thus, we do not address ourselves to the quantum of proof required where the conduct used as a basis for disciplinary measures is also a crime. We have not addressed ourselves to that issue, because such determination would be moot in circumstances where there is no proof whatsoever. Decisions reversed and the causes are remanded to the respective circuit courts, with directions that the officers be reinstated without prejudice as provided by the statutes and for the computation of wages due. All Citations 108 Wis.2d 143, 321 N.W.2d 161 Footnotes 1 During the hearing it appeared that the police witnesses gauged the enormity of the accused officers' offense by the response of the police department as a result of Richard Quade's
- 52. misuse of apolice department code. The fact that many officers and a large amount of equipment of the Milwaukee Police Department were diverted from useful duties can hardly be blamed on either Gail Quade or Oddsen. It may well be that the police department felt impelled, because of the publicity that ensued as the result of Richard Quade's call, to bring charges. The public relations aspect of these proceedings is apparent in the board hearings. E.g., although it was acknowledged that Oddsen was an outstanding officer, the board concluded that his usefulness was impaired because of “media” attention. Also, Gail Quade was judged, not solely on her conduct, but because it appeared to the board that her conduct cast discredit upon their attempts to have more women on the force. In respect to both officers, blame was assessed for reasons extraneous to the conduct. 2 The right to interrogate a police officer is limited to “questions specifically, directly, and narrowly relating to the performance of his official duties ... within the scope of the specific duties ....” Spevack v. Klein, 385 U.S. 511, 519, 87 S.Ct. 625, 630, 17 L.Ed.2d 574 (1967), Fortas concurring. 3 As pointed out, supra, the chief of police in his notice of discharge sent to the Board of Fire and Police Commissioners referred to the conduct as adultery and cited the criminal law. Sec. 944.16, Stats. 4 The legislature has provided by sec. 164.02, Stats., effective in 1980, that, in cities of the first class, where there has been a request by a law enforcement officer for representation during interrogation and that request is denied, evidence obtained cannot be used in a subsequent disciplinary proceeding. While this statute was not in effect at the time of the interrogation of Quade and Oddsen, it reflects the rationale we use here—that the failure to provide representation during
- 53. a coerced interrogationis a factor in the determination of involuntariness. End of Document © 2018 Thomson Reuters. No claim to original U.S. Government Works. http://www.westlaw.com/Link/Document/FullText?findType=L &pubNum=1000260&cite=WIST62.50&originatingDoc=I6a26b0 c8feb011d99439b076ef9ec4de&refType=SP&originationContext =document&vr=3.0&rs=cblt1.0&transitionType=DocumentItem &contextData=(sc.UserEnteredCitation)#co_pp_6a62000089fb7 http://www.westlaw.com/Link/Document/FullText?findType=Y &serNum=1967105698&pubNum=0000708&originatingDoc=I6a 26b0c8feb011d99439b076ef9ec4de&refType=RP&fi=co_pp_sp_ 708_630&originationContext=document&vr=3.0&rs=cblt1.0&tr ansitionType=DocumentItem&contextData=(sc.UserEnteredCita tion)#co_pp_sp_708_630 http://www.westlaw.com/Link/Document/FullText?findType=Y &serNum=1967105698&pubNum=0000708&originatingDoc=I6a 26b0c8feb011d99439b076ef9ec4de&refType=RP&fi=co_pp_sp_ 708_630&originationContext=document&vr=3.0&rs=cblt1.0&tr ansitionType=DocumentItem&contextData=(sc.UserEnteredCita tion)#co_pp_sp_708_630 http://www.westlaw.com/Link/Document/FullText?findType=L &pubNum=1000260&cite=WIST944.16&originatingDoc=I6a26b 0c8feb011d99439b076ef9ec4de&refType=LQ&originationConte xt=document&vr=3.0&rs=cblt1.0&transitionType=DocumentIte m&contextData=(sc.UserEnteredCitation) http://www.westlaw.com/Link/Document/FullText?findType=L &pubNum=1000260&cite=WIST164.02&originatingDoc=I6a26b 0c8feb011d99439b076ef9ec4de&refType=LQ&originationConte xt=document&vr=3.0&rs=cblt1.0&transitionType=DocumentIte m&contextData=(sc.UserEnteredCitation) CRJ 550
- 54. Legal Issues inCriminal Justice Administration Case Brief ExampleThis is an example of a well-written case brief. Note the compliance with the required format and how the student gets right to the important points in plain language. If legal terms are encounter which are not understood, chances are that other students will not understand them, so it is best not to use them unless defined within the brief. Assignment sub-heading: Sixth Amendment Right to Counsel TITLE AND CITATION: Nix v. Williams, 467 U.S. 431, 104 S.Ct. 2501 (1984) TYPE OF ACTION: Review by the U.S. Supreme Court of a lower court ruling that evidence should be suppressed as a result of a violation of the Sixth Amendment right to counsel. The state (Nix) sought to overturn the motion to suppress that was upheld by the U.S. District Court of Appeals. FACTS OF THE CASE: On December 24, 1968, ten year old Pamela Powers was kidnapped from an Iowa YMCA and her body was later found in a ditch, which was within an extensive area that was being searched by volunteers and law enforcement. The defendant was observed “carrying a large bundle wrapped in a blanket…two legs in it and they were skinny and white.” Williams’ car, which contained clothing items belonging to the victim, was found the next day approximately 160 miles from the incident. Based on this information, an extensive search was started that extended from Des Moines to Davenport, Iowa. Law enforcement obtained a warrant for Williams’ arrest, and he subsequently turned himself into the authorities in Davenport. Williams was arraigned and had obtained and spoken with an attorney. Des Moines police detectives agreed to transport Williams and not interview him during the drive between Davenport and Des Moines. During the drive, one of
- 55. the detectives onthe case began to speak to Williams regarding the need to find the child’s body before it snowed so that her parents could give her a proper, “Christian” burial. The detective did not ask Williams any specific questions during this conversation. At that point, Williams provided statements to the detectives that led them to the child’s body. Williams was then tried in state court and was found guilty of first degree murder. Williams filed a motion to suppress the evidence of the body and all related evidence concerning the body’s location based on illegally obtained testimony. When the conviction was affirmed by the Iowa state Supreme Court, Williams sought relief in the U.S. District Court for the Southern District of Iowa. The U.S. District Court, U.S. Court of Appeals, and the U.S. Supreme Court agreed with Williams and determined that he was denied the right to counsel and his statements, which led to the child’s body, could not be introduced into evidence. Williams was tried in state court a second time, without the use by the prosecution of the statements he had given to detectives. Prosecutors introduced evidence of the child’s body under the premise of “inevitable discovery”, as the child’s body was in an area that was within the designated search area. Williams was convicted a second time and the conviction was upheld by the Iowa Supreme Court again. Appeals by the parties brought the case back to the U.S. Supreme Court a second time. CONTENTIONS OF THE PARTIES: Nix: The state (Nix) contends that the evidence of the child’s body and all related evidence concerning the body as to its location should be admissible in spite of the denial of right to counsel because the body would have been discovered in any event due to the wide-ranging search in the area which was not the result of anything that Williams said to the detectives. In the second trial, the defendant’s statements were not introduced,
- 56. but the bodyevidence should still be admissible because it would have been discovered and in the same condition anyway even if there was no violation of the Sixth Amendment. The child’s body was found well within the extensive search area and would have been located by one or more of the over two hundred searchers nearly the same time that the defendant took the detectives to the child’s body. This argument is called the “inevitable discovery rule.” Williams: Williams contends that were it not for the illegally obtained statements from Williams by law enforcement, the evidence would not have been discovered or used against the defendant. The evidence obtained is considered the “fruit of the poisonous tree,” and therefore should not be admitted at trial. ISSUE: Once a violation of the Sixth Amendment right to counsel has occurred, can evidence obtained from the illegally- obtained statements be admitted at trial based on the fact that the evidence would have been discovered anyway? DECISION: Yes, because the prosecution was able to prove that the same physical evidence would have been discovered even if the constitutional rights violation did not occur. REASONING: The court applied the reasoning of the independent source doctrine to that of inevitable discovery. “The independent source doctrine teaches us that the interest of society in deterring unlawful police conduct and the public interest in having juries receive all probative evidence of a crime are properly balanced by putting the police in the same, not a worse, position that they would have been in if no police error or misconduct had occurred” (quoting from Nix v. Williams, 104 S.Ct. 2501, 2509 (1984)). RULE OF LAW: Evidence that may have been obtained in violation of a constitutional protection may still be admissible
- 57. if it canbe proven by a preponderance of the evidence that it was inevitable that the evidence would have been discovered even if the violation had not occurred. This is known as the “inevitable discovery” rule. CRJ 550 Legal Issues in Criminal Justice Administration Case Brief Guidelines 1. Students will brief all assigned cases for the module in which they are assigned. The case briefs are to be the student’s own work. The learning process takes place with the student reading, analyzing, and summarizing the facts and issues in a case; copying someone else’s work is not part of the learning process. However, students may consult with each other, discuss cases, and use the product of those discussions to write their briefs. 2. Your classmates will depend on you to write a thorough, accurate brief of the case(s) assigned. You, in turn, will rely on your classmates to do the same for their cases. 3. A copy of your brief will be posted in the appropriate module’s Case Brief Discussion board. 4. Be prepared to explain, justify, or dissent from your assigned case, as the instructor and/or classmates may query you about the case. 5. Case briefs will be written in the following format (mandatory): a. Title and Citation (e.g. Jones v. Smith, 123 F.3d 456 (11th Cir. 2004)) b. Type of Action (e.g. civil suit for money damages for violation of free speech rights under the First Amendment.) c. Facts of the Case (Discuss relevant facts; what happened? Why is this matter in court?) d. Contentions of the Parties (What are the best arguments favoring each party?) · Smith argues that:
- 58. · Jones arguesthat: e. Issue(s) (The issue relevant to the subjects studied in the module in which it is assigned, e.g. Were Jones’ rights under the First Amendment violated when he was fired for speaking at a political rally?) f. Decision (How did the court rule on that issue?) g. Reasoning (Why did the court rule the way it did? This is the most important part of the case.) h. Rule of Law (What one legal point do we take from this case?) 6. Length: Should not exceed 2 pages. 7. Do not post a brief without checking your spelling and grammar. You will lose points for errors. 8. Important Point: Each time you brief a case, remember why the case is selected at this point in the course. Some cases address multiple issues. You do not need to discuss all of the issues. Focus on the point of law where the case is assigned in the course. 9. Case briefs grades are weighted as follows (total 4 points): a. Summary of facts: 1 point b. Format: 1 point c. Clarity of writing: 1 point d. Understanding of the court’s decision: 1 point Assigned Cases Module One: Reasonable suspicion 4th Amendment: 1. U.S. v. Arvizu, 534 U.S. 266 (2001) 5th Amendment after Miranda: 2. Edwards v. Arizona, 451 U.S. 477 (1981) Right to counsel: 3. United States v. Henry, 447 U.S. 264 (1980) Vague or overbroad:
- 59. 4. Parker v.Levy, 417 U.S. 733 (1974) Off-duty conduct and discipline: 5. Oddsen v. Board of Fire & Police Comm., 321 N.W. 2d 161 (Wis. 1982) Module Two: Due Process – Substantive and Procedural: 1. Muncy v. City of Dallas, 335 F.3d 394 (5th Cir.2003) 2. Silva v. Bieluch, 351 F.3d 1045 (11th Cir. 2003) Liberty Interest and Equal Protection: 3. Zalewska v. County of Sullivan, 316 F.3d 314 (2d Cir. 2003) Due Process – Procedural: 4. Gilbert v. Homar, 117 S.Ct. 1807 (1997) 5. Dixon v. City of New Richmond, 334 F.3d 691 (7th Cir. 2003) Liberty Claims: 6. Cannon v. City of West Palm Beach, 250 F.3d 1299 (11th Cir. 2001) Equal Protection: 7. Williams v. Hansen, 326 F.3d 569 (4th Cir. 2003) Right of Privacy: 8. Shahar v. Bowers, 114 F.3d 1097 (11th Cir. 1997) Freedom of Association: 9. Parks v. City of Warner Robbins, 43 F.3d 609 (11th Cir. 1995) 10. Tindle v. Caudell, 56 F.3d 966 (8th Cir. 1995) 11. Ross v. Clayton County, 173 F.3d 1305 (11th Cir. 1999) Freedom of Religion: 12. Endres v. Indiana State Police, 334 F.3d 618 (7th Cir. 2003)
- 60. 13. Ryan v.U.S. Department of Justice, 950 F.2d 458 (7th Cir. 1991) Module Three: Americans with Disabilities Act (ADA) – Supreme Court: 1. Toyota Motor Co. v. Williams, 122 S. Ct. 681 (2002) 2. U.S. Airways v. Barnett, 122 S. Ct. 1516 (2002) Americans with Disabilities Act (ADA) – Hiring Under the ADA: 3. Holiday v. City of Chattanooga, 206 F.3d 637 (6th Cir. 2000) Americans with Disabilities Act (ADA) – Reasonable Accommodation: 4. Holbrook v. City of Alpharetta, 112 F.3d 1522 (11th Cir. 1997) Americans with Disabilities Act (ADA) – Discipline: 5. Aldrup v. Caldera, 274 F.3d 282 (5th Cir. 2001) Americans with Disabilities Act (ADA) – Family and Medical Leave Act (FMLA): 6. Phelan v. City of Chicago, 347 F.3d 679 (7th Cir. 2003) Title VII of the Civil Rights Act of 1964 – Racial Discrimination: 7. Grutter v. Bollinger, 123 S. Ct. 2325 (June 2003) 8. Williams v. Consolidated City of Jacksonville, 341 F.3d 1261 (11th Cir. 2003) Title VII of the Civil Rights Act of 1964 – Religious Discrimination: 9. Mandell v. County of Suffolk, 316 F.3d 368 (2003) Title VII of the Civil Rights Act of 1964 – Fair Labors Standards Act: 10. Houston Police Officers Union v. Houston, 330 F.3d 298 (5th Cir. 2003) Title VII of the Civil Rights Act of 1964 – Pregnancy
- 61. Discrimination Act (42U.S.C. Sec. 2000e(k)): 11. Adams v. Nolan, 962 F.2d 791 (8th Cir. 1992) Title VII of the Civil Rights Act of 1964 – Age Discrimination in Employment Act (ADEA): 12. Terry v. Ashcroft, 336 F.3d 128 (2d Cir. 2003) 13. Smith v. City of Jackson, 125 S. Ct. 1536 (2005) Module Four: Sexual harassment: 1. Burlington Northern Railway v. White, 126 S.Ct. 2405 (2006) 2. Meritor Bank v. Vinson, 106 S. Ct. 2399 (1986) 3. Johnson v. Rice, 237 F. Supp.2d 1330 (M.D.FL 2002) 4. Faragher v. City of Boca Raton, 524 U.S. 775 (1998) 5. Burlington Industries v. Ellerth, 118 S. Ct. 2257 (1998) 6. Oncale v. Sundowner Offshore Services, Inc., 118 S. Ct. 998 (1998) 7. Gonzales v. New York Department of Corrections, 122 F. Supp. 2d. 335 (N.D.N.Y. 2000) 8. Pennsylvania State Police v. Suders, 542 U.S. 129 (2004) 9. Thomas v. Galveston County, 953 F. Supp. 504 (S.D. Tex. 1997) 10. Smith v. City of Chattanooga, WL 4374039 (4th Cir. 2008) 11. McCurdy v. Arkansas State Police, 375 F. 3 762 (8th Cir. 2004) 12. Wright v. Rolette County, 417 F. 3d 879 (8th Cir. 2005) Module Five: Compelled interviews: 1. Garrity v. State of New Jersey, 87 S. Ct. 616 (1967) 2. Gardner v. Broderick, 88 S. Ct. 1913 (1968)
- 62. 3. (a) Kastigarv. United States, 92 S.Ct. 1653 (1972) 3. (b) In re Grand Jury Subpoena, 75 F.3d 446 (9th Cir. 1996) 3. (c) Grand Jury Subpoena v. United States, 40 F.3d 1096 (10th Cir. 1994) 4. Dept. of Justice v. FLRA, 975 F.2d 218 (5th Cir. 1992) 5. LaChance v. Erickson, 118 S.Ct. 753 (1998) 6. Harrison v. Wille, 132 F.3d 679 (11th Cir. 1998) 7. Chan v. Wodnicki, 123 F. 3d 1005 (7th Cir. 1998) 8. U.S. v. Veal,1l53 F.3d 1233 (11th Cir. 1998) 9. NASA v. NLRA, 119 S. Ct. 1979 (1999) 10. Driebel, v. City of Milwaukee, 298 F.3d 622 (7th Cir. 2002) 11. Dwan v. City of Boston, 329 F. 3d 275 (1st Cir. 2003) 12. U.S. v. Waldon, 363 F.3d 1103 (11th Cir. 2004) 13. Luna v. Mass., 354 F.3d 108 (1st Cir. 2004) 14. Kirkpatrick v. City of Los Angeles, 803 F.2d 485 (9th Cir. 1986) 15. O’Connor v. Ortega, 480 U.S. 709 (1987) 16. Copeland v. Philadelphia Police Department, 840 F.2d 1139 (3rd Cir. 1989)
- 63. 17. Murphy v.Waterfront Commission, 378 U.S. 52 (1964) Module Six: Free Speech: 1. Pickering v. Board of Education, 88 S.Ct. 1731 (1968) 2. Connick v. Myers, 103 S. Ct. 1684 (1983) 3. Rankin v. McPherson, 107 S. Ct. 2891 (1987) Analysis of Free Speech Cases: 4. Skaarup v. N. Las Vegas, 320 F.3d 1040 (9th Cir. 2003) 5. Eiland v. City of Montgomery, 797 F.2d 953 (11th Cir. 1986) 6. Pappas v. Guiliani, 118 F. Supp. 2d 433 (S.D.N.Y. 2000) 7. City of San Diego v. Roe, 543 U.S. 77 (2004) (off-duty speech) Political Activity/Speech: 8. Meaney v. Dever, 326 F.3d 283 (1st Cir. 2003) Testimony to Government Body: 9. Reilly v. City of Atlantic City, 532 F. 3d 216 (3rd Cir. 2008) 10. Kinney v. Weaver, 367 F.3d 337 (5th Cir. 2004) 11. Hoffman v. Dougher, 2006 WL 2709703 (M.D. Pa. 2006) (EEOC testimony) Statements to the Press:
- 64. 12. Walton v.Safir, 122 F. Supp.2d 466 (S.D.N.Y. 2000) 13. Williams v. Seniff, 342 F.3d 774 (7th Cir. 2003) 14. Nixon v. City of Houston, 511 F.3d 494 (5th Cir. 2007) Reporting Misconduct: 15. Garcetti v. Ceballos, 126 S. Ct. 1951 (2006) Violating Chain of Command: 16. Shands v. Kennett, 993 F. 2d 1337 (8th Cir. 1993) Prior Restraint on Speech: 17. Latino Officers Association v. Safir, 165 F. Supp. 2d 587 (S.D.N.Y. 2001) Religious Speech: 18. Altman v. Minn. Dept. of Corrections, 251 F.3d 1199 (8th Cir. 2001) 19. Daniels v. City of Arlington, Texas, 246 F.3d 500 (5th Cir. 2001) Mixed Motive:
- 65. 20. Sangendorf-Teal v.Rennsselaer County, 100 F. 3d 270 (2nd Cir. 1996) Module Seven: Privacy – Office: 1. O’Connor v. Ortega, 480 U.S. 709 (1987) 2. Cronin v. Town of Amesbury, 895 F. Supp. 375 (D. Mass. 1995) Privacy – Video: 3. U.S. v. Taketa, 923 F.2d 665 (9th Cir. 1991) Privacy – Mixed Motives: 4. Lowe v. City of Macon, 720 F. Supp. 994 (M.D. Ga. 1989) Privacy – Computers and Disks: 5. U.S. v. Slanina, 283 F. 3d 670 (5th Cir. 2002) Privacy – Drug Testing: 6. Railway Labor Executives v. Skinner, 934 F.2d 1096 (9th Cir. 1991) 7. National Treasury Employees Union v. Von Raab, 489 U.S. 656 (1989) 8. National Federation of Federal Employees v. Cheney, 884 F.2d 603 (D.C. Cir. 1989) 9. National Treasury Employees Union v. Department of Treasury, 25 F.3d 237 (5th Cir. 1994) Supervisory Liability – Civil Liability: 10. Town of Castle Rock v. Gonzales, 125 S. Ct. 2796 (2005) 11. Stemler v. City of Florence, 126 F. 3d 856 (6th Cir. 1997)
- 66. Supervisory Liability –Negligent Hiring and Retention: 12. Commissions of Bryan County v. Brown, 117 S.Ct. 1382 (1997) Supervisory Liability – Failure to Train: 13. Brower v. Inyo, 109 S. Ct. 1378 (1989) 14. Lewis v. City of St. Petersburg, 260 F. 3d 1260 (11th Cir. 2001) 15. City of Canton v. Harris, 489 U.S. 378 (1989) 16. Forgan v. Howard County, Texas, 494 F.3d 518 (5th Cir. 2007) Supervisory Liability – Department Policy as Violative of Rights: 17. Wilson v. Jones, 251 F.3d 1340 (11th Cir. 2001) 18. Garner v. Memphis, 8 F. 3d 358 (6th Cir.1993) Supervisory Liability – Control and Supervision: 19. Holland v. Harrington, 268 F.3d 1179 (10th Cir. 2001) Supervisory Liability – Discipline: 20. Vann v. City of New York, 72 F.3d 1040 (2d Cir. 1996) 21. Sims v. Adams, 537 F.2d 829 (5th Cir. 1976) Supervisory Liability – Direct Act by Supervisor: 22. Lori Graves v. City of Coeur D’Alene, 339 F.3d 828 (9th Cir. 2003) Supervisory Liability – Excessive Force: 23. Tennessee v. Garner, 471 U.S. 1 (1985)
- 67. 24. Thomas v.Durastanti, 607 F.3d 655 (10th Cir. 2010)