Why they do it is no secret: Every child wants the approval of his mommy. When it comes to moms, no one ever really grows up. Most of the time, a mother would rather die than harm her baby, but sometimes they feel otherwise. Sometimes, they can be manipulated into believing that they are helping their baby.
That’s how mom becomes an agent of the government.
On the run for five days in 2009 after allegedly murdering his uncle in New Lenox Township, Ill., Jason Gonzalez was found by Joliet police asleep in his mother’s car when he turned on his cellphone for the first time since the slaying.
Gonzalez declined to talk to Will County sheriff’s detectives, asking six times for a lawyer, according to his attorneys. So police turned to what in some murder cases is one of the most powerful levers at their disposal – the suspect’s mother.
Kimberly Gonzalez was brought into the Joliet interview room, outfitted with video and audio recording equipment, where her son was being questioned. He told her he fatally shot his uncle – her brother Lance Goebel, 48 – then repeated his confession to Will County detectives who handed him a letter from his mother urging him to talk.
Don’t blame the cops for using the tool available to them, Mom. But then, Gonzalez was smart enough to refuse to talk, savvy enough to invoke his right to counsel six times. The police, to their credit, concede this, as opposed to the usual denials that it ever happened or parsing of words to suggest that “I want to speak with a lawyer” was far too vague to comprehend. As defendants go, Gonzalez did well.
But when the police pulled out the big gun, he crumbled. He spilled his guts to mom. Mom! Who can say no to the woman who carried you for nine months, who gave you life and held you to her breast?
Missing from this homey scenario, however, is that recognition that Kimberly Gonzalez wore a new hat when the allowed police to wire her up, instruct her on the discussion she would have with her son, and walk her into Joliet. No longer was she merely mom. Now she was an agent of the government.
Attorneys for Gonzalez, who are asking a judge to throw out the statements because they say their client had repeatedly asked for an attorney, called the conversation with Gonzelez’s mother the “functional equivalent of a police interrogation” and a “psychological ploy to elicit incriminating testimony.”
This isn’t the “functional equivalent” of anything; it is a police interrogation. It is every bit as much a police interrogation as if mom put on a shield. That it’s a particularly effective means of interrogating the recalcitrant defendant, exploiting every boy’s psychological desire to find shelter in his mother’s bosom, isn’t a flaw but a feature. Much effort is put into law enforcement to find such features, and they do.
But the invocation of rights, both silence and an attorney, isn’t limited to Officer Friendly, but any person working for cops as well. Mom too.
The more pernicious problem arises when slightly smarter cop figures out that he can use mommy and avoid the agency problem by wiring her up before taking the defendant into custody.
These are extreme examples of a common police tactic. Before formally filing murder charges last month against accused Blue Island, Ill., serial killer Sonny Pierce, police leaned hard on his mother, urging her to get him to confess before allowing her to speak with him, she says.
Scott Eby, now serving a life sentence, first confessed to his mother that he raped and murdered 3-year-old Riley Fox after FBI agents came to collect his DNA, a confession that caused the FBI to interview him again soon after.
Bear in mind, Miranda doesn’t come into play unless the interrogation is custodial. As long as the cops know where to find their target, the need to grab him is secondary to the need to get him to talk. That’s where mother’s milk comes in.
[DePaul law professor Susan] Bandes said that depending on the circumstances of the case – whether charges have been filed yet, whether the suspect asked for an attorney – it can be difficult to judge whether the tactic violates a suspect’s constitutional rights.
The Miranda warnings familiar to anyone who’s ever watched a TV police drama are intended to protect a suspect from feeling compelled to talk. But Bandes said an argument could be made that those safeguards don’t apply when a mom, as opposed to an intimidating police detective, is sitting across the table.
“It would feel like I’m just talking to my mom,” she said.
Bandes is absolutely, unequivocally wrong. There is nothing about using mom that distinguishes her becoming an agent of the government from anyone else. Except maybe that she’s far more effective than any other potential government agent. The only trick is whether they are able to do so before Miranda kicks in, when it’s fair game.
Once rights have been invoked, not even mom is entitled to undermine a defendant’s constitutional rights when she takes on the role of government agent. If the talk comes before custody, however, then it’s fair game. And this time, it may be far more than nine months at stake.
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Scott, It would be nice if you were right, but I’m afraid the law isn’t as simple and unequivocal as you say it is. Most of my Tribune interview is in agreement with your argument. As I say there, undercover mom is a government agent like any other, and can’t be used to get around constitutional protections just because she’s a mom. If the suspect’s sixth amendment rights have attached, this tactic violates them. There’s a strong argument that it violates the fourteenth amendment too. The one comment you quoted from my interview addressed the fifth amendment, and that is more complicated. Under Illinois v Perkins (involving a jailhouse snitch), even when a suspect is otherwise in custody, eg in prison or jail, his questioning by an undercover informant is not considered custodial interrogation because there is, says the Court, no coercive atmosphere. You say he can’t be interrogated if he’s invoked his rights. The Court says this doesn’t even count as custodial interrogation because he doesn’t know he’s talking to a government agent. The end run is accomplished not because she’s a mom, but because she’s undercover. I’m not defending the govt’s reprehensible tactics or the Perkins decision, as the rest of my interview makes clear–just trying to be accurate about the precedent that has to be dealt with.
Your idea of being in agreement with my argument and mine seem to differ a bit. Your statements are equivocal, where nothing is right or wrong, and everything “may” be, which isn’t agreement at all. If you want to take a hard position, maybe we would agree, That would be fine, but you don’t. I realize that qualifying every statement so that no position is actually taken is prudent, but it’s also unhelpful.
As for Illinois v. Perkins, which I agree is an awful decision, I suggest you read it again. The key to the decision is the questioning of a person incarcerated for an unrelated offense. Here, the questioning was for the exact same crime for which is was jailed and for which he invoked his rights. Perkins has nothing to do with it.
You’re wrong about Perkins. Perkins holds that “Miranda warnings are not required when the suspect is unaware that he is speaking to a law enforcement officer and gives a voluntary statement.” “The essential ingredients of a police dominated atmosphere and compulsion are not present” in such a case. “Ploys to mislead a suspect or lull him into a false sense of security that do not rise to the level of compulsion or coercion to speak are not within Miranda’s concerns.” The only mention of the unrelated offense is in the first paragrpah describing the facts. The “unrelated offense’ language never shows up again and is irrelevant to the holding.
Before you get there, the predicate circumstances have to exist. Unrelated case (where the defendant’s isn’t already represented by counsel) and/or invocation of rights. Not until you get past those hurdles does Perkins come into play.
The mother spoken about here was not equipped with any recording devices. The judgehas ruled numerous times on this matter. The mother happensto be my sister. Author should have done better do diligence before writing.
Steve
The post is based on reports in existence at the time it was written. If subsequent information shows it’s inaccurate, that may change things, but since I have no time machine that allows us to know what information will come out in the future, I can only use information that exists at the time it’s written. The laws of physics apply here.
If you want to correct an inaccuracy, you should either get to it sooner (as this post is nearly 3 years old) or do so in a manner that doesn’t make you look like an offensive moron.