In this case, a confession was almost lost as a result of a third-party who pretended to be a mental health counselor and convinced the defendant to confess to police that he had committed a murder.  The defendant (Higgins-Vogt) met with the “counselor” several times.  The counselor stated her goal was to get inmates to develop a sense of empathy for their victims. She promised confidentiality but prodded for detailed information and took meticulous notes during the session in which the defendant fully confessed and provided detailed information.  After meeting with the “counselor” several times, the defendant asked to speak with the lead detective.  The counselor, who was a contractor with the title “Senior Law Enforcement Officer,” arranged the meeting and sat in on the entire meeting with the detective. The defendant was Mirandized and waived and then answered questions coming both from the detective and the counselor.  He provided information regarding the whereabouts of the murder weapon but did not confess to the murder. A week later the defendant flagged down a prison official and stated in writing he wanted to confess to the murder as a result of talking to his girlfriend.  The detective returned and the defendant fully confessed to the murder.

In order to be admissible, a confession must be knowing, intelligent, and voluntary.  The defense attorney moved to suppress the confession, arguing that the confessions were not voluntary and were coerced by the counselor. The District Court denied the motion and this appeal followed. On appeal, the defendant made two arguments: First, the counselor should have provided Miranda warnings to the defendant since the counselor’s questioning was a custodial interrogation by a known LEO.  Second, the counselor functioned as an agent of law enforcement and coerced the confessions.

The Seventh Circuit clearly did not like the manner in which the pretend counselor operated and made it apparent in the strongly worded opinion.  But in the end, the court held that since the counselor met with the defendant at his request and he was free to end the session at any time, he was not in “custody” during the sessions for Miranda purposes.  The court then held that the counselor did act as an agent of law enforcement, but that the actions did not amount to coercion since there were so many other indicia of the defendant’s willingness to confess apart from the initial interview with the detective. The court held: “Taken in their entirety, all of the facts and circumstances show that Higgins-Vogt’s decision to confess was the product of his own free will” but then added “The criminal justice system did not see one of its finer moments here.”

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