The police can lie, deceive, manipulate and fabricate to obtain confessions from criminal suspects. And it’s legal for them to do so, as long as their interrogation techniques are not “coercive.” This caveat notwithstanding, it is shameful when the police lie to mentally challenged individuals, especially mentally challenged juveniles, to get confessions. This was evidenced in a March 31, 2014 decision by the Ninth Circuit Court of Appeals in the case of United States v. IMM, a Juvenile Male.


When IMM was 12 years of age, he lived with his mother, six-year-old cousin MM, and her five-year-old brother in their grandfather’s trailer on an Indian reservation in Arizona. While the facts are muddled, the grandfather reportedly walked up on the three children outside the trailer and MM had her pants pulled down in front of the boys. Over the ensuing days, MM indicated to her mother that IMM had made her “do something” sexual.  As IMM subsequent trial, the only evidence that something sexual occurred was the brother’s testimony that he saw IMM put his “dingamajiger” in MM’s “private,” the part that “poops.” The grandfather and mother could offer no direct eyewitness testimony of sexual conduct at the trial.


Whatever happened that afternoon at the grandfather’s trailer on that Indian reservation, it should not have become a Federal crime. But the U.S. Government chose to make it a Federal crime. IMM, a minor, was convicted in a U.S. District Court on charges of sexual abuse of a minor, in violation of 18 U.S.C. § 2241(c) and 2246(2) (A).


It is difficult for us to wrap our minds around this case. The alleged “victim” did not testify, and the grandfather and mother saw nothing. The only live in-court testimony the Government had to support the charge that a sexual offense occurred was the testimony of a seven-year-old kid who said he saw IMM stick his “dingamajiger” in MM’s anus. The Ninth Circuit opinion does not even reference any testimony by MM. Yet the appeals court said this was “sufficient” evidence to sustain IMM’s conviction.


Fortunately, the appeals court set aside IMM’s conviction because of police misconduct. It is unclear when and how the police got involved in the case. The police interviewed the grandfather three weeks after the incident. Forensic interviewers took MM’s statement two weeks after the grandfather’s interview and her brother’s statement’s two months later. Incredibly, it was seven months before an armed, plain clothes detective arrived at the trailer and transported IMM and his mother in an unmarked police car to the police station. Once there, the detective escorted IMM and his mother into a “small room about five or six feet by five or six feet.” It was just “big enough for a small desk, approximately four chairs, and a recording device.”


The detective closed the door to the room and it remained close during the entire interrogation of the juvenile. The detective did not read IMM his Miranda rights. Instead he read a “Parental Consent to Interview a Juvenile Form” to the mother and had her sign it. The detective was unable to say whether IMM listened to the reading of the Form or even understood what it meant. The detective then escorted the mother into the lobby after “ordering” IMM to remain in the room. The mother said she agreed to leave the interrogation room because she believed the detective “would treat [IMM] like a child.”


But that’s not what the detective did. He treated IMM as he would an adult. “I read your mom those rights, okay, so at anytime throughout the, the interview you don’t feel comfortable, you can stop and you don’t have to answer any questions,” the detective told IMM. The detective asked IMM if he “understood,” to which the mentally-challenged kid said, “Uh-huh.”


The mother said IMM had been “in special education classes” and “read only at a second grade level, even though he was in the sixth grade.” She also attributed “emotional problems” to IMM stemming from a “troubled home life” in which he saw “his father try to kill his mother and may have been sexually abused by his father,” the Ninth Circuit reported.


IMM was certainly not capable of understanding adult instruction or questioning. The detective seized on this emotional deficiency. He admitted that he had no “training in conducting interviews with juveniles or juvenile suspects.” He even admitted in court that he had never heard of “false confessions.”


Even more remarkable is the fact that, as reported by the appeals court, the detective said “he saw no problem with an officer, in an interrogation, telling a young child with special education needs what the officer would like the child to say.”


IMM’s questioning lasted 55 minutes. During the first half of the interrogation, the special needs child denied that any sexual conduct had taken place between him and MM. The detective kept pressing with questions about involvement to which IMM replied “I don’t know” or “I don’t really remember.” The Ninth Circuit picks up the narrative after that:


“The detective responded by using what he later described as ‘deception.’


Even though IMM’s grandfather did not, in fact, see IMM do anything improper, the detective repeatedly insisted to IMM that his grandfather had seen IMM sexually abuse MM. The detective lied to IMM, insisting that his grandfather had said he ‘saw [IMM] touching [MM].’ When IMM disagreed, the detective asked questions such as, ‘Would you consider your grandpa a liar?’ Even as he told IMM that ‘we’ve already made the decision that grandpa does lie, right?’


Even as he told IMM: ‘[T]hat isn’t really a big thing but it can turn into a big thing if you’re not going to be honest.’ He added: ‘I don’t want to go over [,], well, I don’t remember or, uh, this is what happened [,] because I know what happened because I talked to people who saw it, who know, who have heard.’ When IMM again recounted what happened and maintained that he had not abused MM, the detective sharply interrupted him and said ‘No, no … remember, we talked about being truthful? Grandpa saw more than you think he saw.’ Minutes later, when IMM said ‘I was doing nothing,’ the detective responded: ‘Yeah, you was doing something. Because grandpa tells me you were doing something and [MM’s brother] said he saw what you were doing. So both of them are liars?’ IMM replied ‘[H]er brother] lies,’ leading the detective to return to his deception involving the grandfather: ‘[W]ell then, well, grandpa doesn’t lie and grandpa told me the exact same thing that [MM’s brother did].’


“Halfway through the interrogation, the detective said that MM’s brother had told him that ‘you’re putting your weenie in her butt.’ This was the first time either party to the interview had used the words ‘weenie’ and ‘butt.’ IMM replied, ‘I know.’ The detective then told IMM that ‘grandpa said he saw you touching her … I’m not here making things up to you okay.’ When the detective asked, ‘we know [MM] got on top of you, I want to know what you did,’ IMM repeated the language used by the detective: ‘Um, um, put my, put my weenie in her butt I guess.’ When the officer asked IMM to clarify what part of the body he meant, he said ‘weenie’ meant ‘balls.’


After some follow-up questions from the detective, IMM clarified that he was talking about his ‘middle part’ that he uses to ‘pee.’ Prodded by detailed and leading questions from the detective, IMM thereafter confessed to tell MM to take off her clothes and to sit on top of him, and he stated he ‘um, put [his] weenie in her butt or something.’”


Fortunately, the Ninth Circuit had both the legal and moral courage to toss out IMM’s conviction on a Miranda violation. That at least ameliorated the injustice of the case somewhat. But it our view that whether or not IMM put his “weenie” or his “dingamajiger” in MM’s “butt” is immaterial. This was not—and never should have been prosecuted as—a federal offense. These were three unsophisticated Indian kids—at least one of who had been physically and most probably sexually abused by his kin folk—in the yard of a trailer on a Indian reservation, promiscuously exploring sexual conduct. Was it wrong? Yes.


But it was far less wrong than General Motors, which the Supreme Court has said is a “person,” deliberately killing thirteen people because it was “too expensive” to correct a malfunction in its automobiles which were the “deadly weapons” that killed and seriously injured scores of people. And no one has been, nor will they were be, charged with a Federal criminal offense in this case.


So, at the end of the day, you be the judge. Which “offense” is worse?