Jeanette Janusiak v. Sarah Cooper ( 2019 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19‐1198
JEANETTE M. JANUSIAK,
Petitioner‐Appellant,
v.
SARAH COOPER,
Respondent‐Appellee.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 17‐CV‐514 — William C. Griesbach, Chief Judge.
____________________
ARGUED JULY 9, 2019 — DECIDED AUGUST 22, 2019
____________________
Before KANNE, HAMILTON, and SCUDDER, Circuit Judges.
HAMILTON, Circuit Judge. After an infant died in the care of
petitioner Jeanette Janusiak, a Wisconsin jury found her guilty
of first‐degree intentional homicide. On direct appeal, state
courts rejected her argument that statements she made during
an interrogation were involuntary and should have been sup‐
pressed. Janusiak then asserted that argument in federal court
in her petition for a writ of habeas corpus under 28 U.S.C.
§ 2254. The district court denied relief. We affirm.
2 No. 19‐1198
On appeal, Janusiak contends her statements were coerced
by (1) comments that law enforcement made to her about
keeping access to her children, (2) the length and other fea‐
tures of the interrogation, and (3) her vulnerability as a preg‐
nant woman and mother. We affirm because the state appel‐
late court reasonably applied the correct standard to deter‐
mine that Janusiak’s statements were voluntary.
I. Factual and Procedural Background
The facts about Janusiak’s case are drawn from the state‐
court record. Janusiak called 911 to report that Payten Shearer,
a friend’s baby in her care, was not breathing. Paramedics
took Payten to the hospital while officers talked to Janusiak.
The police returned about eight hours later, and Janusiak,
then eight months pregnant, agreed to go to the police station
for an interview. Police questioned her about Payten’s death
for about seven hours. Toward the end of the interrogation,
Janusiak made statements about what happened to Payten
that were used to impeach her testimony at trial. The Wiscon‐
sin Court of Appeals court described the interrogation as fol‐
lows:
It is undisputed that, during the interview
with the officers that she now challenges, Ja‐
nusiak initially repeated the same account that
she had given to police after they responded to
a 9‐1‐1 call made by Janusiak. This initial ac‐
count was that, after she had put the baby on a
bed in a bedroom, Janusiak fell asleep in the liv‐
ing room, was awakened by a “choking, gurgley
noise,” and when she went into the bedroom
she found that the baby was not breathing and
she called 9‐1‐1. Janusiak said that she was not
No. 19‐1198 3
aware of any problem with the baby before she
was awakened by the sounds.
However, as the interview that Janusiak
now challenges progressed, Janusiak’s account
changed markedly from the initial claim that
she had no knowledge of how the baby had
been injured. Janusiak at one point said, “She
[the baby] fell off my bed, it was off my bed.”
Later, Janusiak said, “She hit the table.” Later,
Janusiak said, “She went down, she hit the table,
there’s a little shelf opening in the table and she
hit that. And then she fell and then she (unintel‐
ligible). And then I grabbed her.” Later still, Ja‐
nusiak said, “I set her down on the bed, she fell
off the bed…. It was the table. She hit, she hit the
table.” Throughout the remainder of the inter‐
view, Janusiak remained insistent that this last
account was accurate, rejecting the police offic‐
ers’ position that the baby’s injuries could not
have occurred in the manner that Janusiak de‐
scribed, given the medical evidence as the offic‐
ers understood it.
State v. Janusiak, 876 N.W.2d 178, 367 Wis. 2d 349, ¶¶ 3–6 (Wis.
App. 2016) (footnote omitted).
Janusiak was charged with first‐degree intentional homi‐
cide. Before trial, she moved to suppress a video recording of
the interrogation. The trial court denied the motion, and the
recording was shown to the jury to undermine her credibility
with her inconsistent story.
4 No. 19‐1198
The state appellate court described the testimony received
at the suppression hearing and the trial court’s ruling on Ja‐
nusiak’s motion:
At the hearing on voluntariness, Janusiak
did not testify. The officers who conducted the
interview testified to facts that included the fol‐
lowing. Janusiak was cooperative and willing to
go to the police station for the interview. Ja‐
nusiak was not in handcuffs either prior to en‐
tering the interview room or during the inter‐
view. The entire interview was recorded. Ja‐
nusiak was read, understood, and waived her
Miranda rights. The officers provided Janusiak
with soda and with “at least three” breaks dur‐
ing the interview, which Janusiak used to
smoke or to use the restroom. Janusiak ap‐
peared to understand the interview questions
and did not appear to be tired.
Based on this testimony and a viewing of the
recording of the interview, the circuit court de‐
termined that the statements were made volun‐
tarily. The court noted that the interview session
was lengthy (approximately seven hours in‐
cluding breaks), but found that Janusiak “did
not appear to be over tired or unable to exercise
her free will during the interview.” The court
found that there were “at least a couple” breaks
in the questioning and that the officers offered
Janusiak food and drink during the interview.
Addressing Janusiak’s arguments that the offic‐
ers coerced her statements by promising her
No. 19‐1198 5
that she would return home to her children and
would not go to jail if she cooperated, the court
found that “the officers were confrontational
about her explanation for the victim’s injuries
which they believe did not match what they
were being provided by medical professionals.”
However, the court also found that nothing that
the officers did or said “rose to the level of coer‐
cive police conduct.” The court ultimately con‐
cluded that the statements “were voluntary un‐
der the totality of the circumstances,” because
police did not use “improper … practices or co‐
ercion” “to obtain the statements.”
Janusiak, 367 Wis. 2d 349, ¶¶ 3–6 (footnote omitted). We have
viewed and compared the video with the transcript. The state
appellate court’s description and the transcript are materially
consistent with the video.
Besides using Janusiak’s inconsistencies from the interro‐
gation to undermine her credibility, the State relied heavily
on testimony from medical experts that implicated Janusiak.
A radiologist testified that Payten’s skull was fractured in
three places and that a fall from a bed would be unlikely to
cause those injuries. A pediatrician specializing in child abuse
testified that Payten had bruising on her chest and back in a
pattern resembling an adult hand, and that these injuries,
among others (such as detached retinas), had occurred shortly
before the paramedics started treating Payten. The pediatri‐
cian also concluded that Payten had been sodomized with an
object and had suffered “definite abusive head trauma, child
physical abuse that led to [her] demise.” The experts relied on
the facts that Janusiak was Payten’s primary caregiver for the
6 No. 19‐1198
three days preceding Payten’s injuries and was, according to
Janusiak herself, the only adult in the home the night that she
called 911. The State also introduced evidence that Payten’s
blood was found on a wall of the bedroom, on the bed, and on
a washcloth stuffed under the mattress.
Janusiak’s defense focused on testimony from her and her
medical expert. She insisted that she never hit or sodomized
Payten and that Payten had not fallen off a bed. She said that
she changed her story during the interrogation only because
the officers “scared me, and they told me, basically the truth
wasn’t enough, so if I knew what happened to Payten, and an
accident happened, then I can go home to my children.” She
described her physical condition during the interrogation as
“very far along in pregnancy and physically exhausted.” Her
medical expert testified that the iron content of Payten’s
blood, the “healing characteristics” of Payten’s head, and de‐
lay between injury and symptoms in some infants suggested
that Payten’s injuries were inflicted “a few days prior to Pay‐
ten’s collapse.”
The jury found Janusiak guilty of first‐degree intentional
homicide, and she was sentenced to life in prison. In her direct
appeal in state court, she argued that her statements during
the interrogation were coerced in violation of the Fifth and
Fourteenth Amendments. She gave three reasons: First, the of‐
ficers and a social worker threatened to separate her from her
children if she did not satisfy them, a tactic that she said was
barred by Lynumn v. Illinois, 372 U.S. 528 (1963). Lynumn over‐
turned a conviction for unlawful marijuana use that was
based in part on a confession that the police obtained by
threatening Lynumn that unless she “cooperated,” they
would take her children from her and stop the state’s financial
No. 19‐1198 7
aid to the children. Second, the threats, the length of the inter‐
rogation, her pregnancy, and the officers’ promises to let her
see her children if she cooperated, combined to create an un‐
duly coercive atmosphere for any defendant. Third, she was
particularly vulnerable to coercion because of her pregnancy
and status as a mother of four young children.
The appellate court affirmed for several reasons. It first de‐
termined Janusiak was not “particularly vulnerable to police
pressures and tactics.” Janusiak, 367 Wis. 2d 349, ¶ 15. The
court cited her age of 24, high‐school education, five prior ex‐
periences with the police, calm demeanor (“she had ceased
crying and was calm by the time the officers began to question
her”), absence of exhaustion, and officers’ repeated offers of
breaks, food, and drink. ¶¶ 9, 13, 15. The court noted that
“[a]dvanced pregnancy might be a contributing factor if com‐
bined with other pertinent facts … , but Janusiak fails to point
to any such pertinent facts.” ¶ 15.
In addition, the circumstances of the interrogation were
not unduly coercive. First, Janusiak had “clearly and volun‐
tarily waived” the rights established in Miranda v. Arizona, 384
U.S. 436 (1966), for her “lengthy” custodial questioning.
367 Wis. 2d 349, ¶ 17. Second, the officers did not threaten or
use violence or intimidation. Id. Third, the officers “were gen‐
erally attentive to Janusiak’s personal needs and did not ap‐
pear to take advantage of her emotional state when she cried
in their presence.” Id. Fourth, Janusiak did not ask to stop the
interview and even asked “to continue talking when the offic‐
ers said it was time to end the interview.” Id., ¶ 19. The court
explained that those facts, plus its review of the interrogation
video, did not make this one of the “rare” cases where the
8 No. 19‐1198
police gave Miranda warnings but the suspect’s statements
should still be deemed to have been coerced. ¶ 18.
Next, the court addressed Janusiak’s argument that, in vi‐
olation of the principle of Lynumn, she was “threatened” with
losing her children unless she acknowledged her guilt. Ja‐
nusiak, 367 Wis. 2d 349. ¶ 21. The court focused first on the
statements of the social worker, Hazel Coppernoll:
Coppernoll was present during the questioning
for fewer than ten minutes of the seven‐hour in‐
terview period. Coppernoll informed Janusiak
that she was “not taking [Janusiak’s children]
into custody,” but that Coppernoll was con‐
cerned for Janusiak’s children if it turned out
that the baby had been injured in Janusiak’s
home. Coppernoll also suggested, before leav‐
ing the interview room, that Janusiak “be as co‐
operative as [Janusiak] possibly can.” … [T]hat
statement came nearly six minutes after Cop‐
pernoll informed Janusiak that she was not tak‐
ing her children into custody. Moreover, it came
on the heels of Coppernoll telling Janusiak, in a
seemingly non‐threatening vein, “hopefully I
won’t be back in touch with you[,] we[’]re going
down to the hospital right now, ….”
¶¶ 22, 24.
The court rejected the argument that Coppernoll encour‐
aged Janusiak to acknowledge guilt. If anything, the court
said, Coppernoll’s statements “most likely” “had the effect of
causing Janusiak to continue to deny that the baby was in‐
jured in any manner at her home, whether accidental or
No. 19‐1198 9
otherwise.” Janusiak, 367 Wis. 2d 349, ¶ 23. Lynumn was “in‐
apposite,” the court added, because there the police “threat‐
ened the defendant with the loss of her children if she did not
confess to possession and sale of marijuana.” ¶ 25. Copper‐
noll simply “conveyed the idea that if the baby had been in‐
jured in Janusiak’s home, social services might take her chil‐
dren away.” Id. (emphasis added).
Finally, the court rejected Janusiak’s argument that the po‐
lice had, inconsistently with Lynumn, “promised” that she
could go home to her children if she cooperated. 367 Wis. 2d
349, ¶¶ 26–31. The court highlighted these exchanges that Ja‐
nusiak cited:
Police Chief [Timothy] Becker: We don’t want
you to go to jail, we want to find out what hap‐
pened.
Janusiak: I don’t want to go to jail.
Becker: We want to find out.
Detective [Andrew] Stelter: I want to send you
home with your kids, that’s what I want.
Becker: But you’re not giving us anything to
work with here.
Janusiak: There is nothing else I can think of that
(unintelligible) happened to her though…. I’m
trying to tell you, (unintelligible).
Stelter: There, there’s got to be something, there
got to be some
…
10 No. 19‐1198
Becker: I feel, I feel terrible for you, but you’re
kind of, this is the way you want this to go down
and that’s, that’s totally up to you, I understand,
if you have [a] reason that you want to go to jail
I guess that’s, that’s fine.
Janusiak: (unintelligible)
Becker: But we’re talking about jail, no kids[.]
Janusiak: I’ll show you how I picked [the baby]
up.
Becker: No family. It doesn’t matter how you
picked her up.
367 Wis. 2d 349, ¶ 28.
These passages, the court explained, suggested only that
the officers would allow Janusiak to leave if she gave them an
“exculpatory explanation” that matched their understanding
of the medical evidence. ¶¶ 27, 29 (emphasis in original). Ja‐
nusiak’s story did not do that because doctors said that a fall
from the bed—her then‐current story—could not explain Pay‐
ten’s injuries. ¶ 27. Statements about the potential benefits of
exculpating oneself, the court said, are not unduly coercive.
Under the totality of the circumstances, the court ruled, Ja‐
nusiak’s statements were voluntary. 367 Wis. 2d 349, ¶¶ 10,
30–31. The Supreme Court of Wisconsin denied further re‐
view. State v. Janusiak, 371 Wis. 2d 606 (Wis. 2016).
Janusiak then filed her § 2254 petition in federal court. She
asserted that the state appellate court’s decision rejecting her
claim of coercion was contrary to or involved unreasonable
applications of (1) Lynumn; (2) Miranda; and (3) Supreme
Court cases on the “totality of the circumstances.” She added
No. 19‐1198 11
that the state courts unreasonably found that the officers (1)
waited for her “to stop crying and calm down before ques‐
tioning her” and (2) told her that she could go home if she had
an “exculpatory explanation” that did not contradict the med‐
ical evidence. The district court denied relief, ruling that the
state appellate court’s application of federal law and fact‐find‐
ing were not unreasonable. The district court then issued a
certificate of appealability under 28 U.S.C. § 2253(c).
II. Analysis
Under the Antiterrorism and Effective Death Penalty Act
(AEDPA), a federal court cannot issue a writ of habeas corpus
on a claim rejected on the merits in state court unless the pe‐
titioner surmounts high obstacles. The principal obstacle con‐
cerns the state court’s legal determinations. To obtain federal
relief on a claim that state courts rejected on the merits, the
state courts’ decision must have been “contrary to, or in‐
volved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court” or “based
on an unreasonable determination of the facts.” 28 U.S.C.
§ 2254(d). This court “reviews the specific reasons given by
the state court and defers to those reasons if they are reason‐
able.” Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018).
A decision is contrary to clearly established federal law “if
it applies a rule that contradicts the governing law set forth”
in Supreme Court decisions or “confronts a set of facts that is
materially indistinguishable from” a Supreme Court decision
but comes out differently. Brown v. Payton, 544 U.S. 133, 141
(2005). An “unreasonable” application of clearly established
federal law must be “objectively unreasonable, not merely
wrong; even clear error will not suffice.” White v. Woodall, 572
U.S. 415, 419 (2014) (quotation marks and citation omitted).
12 No. 19‐1198
The petitioner must show that the state court’s decision in‐
volved an error “well understood and comprehended in ex‐
isting law beyond any possibility for fairminded disagree‐
ment.” Harrington v. Richter, 562 U.S. 86, 103 (2011).
Another obstacle to federal relief concerns the state court’s
factual findings. A state court’s factual findings receive defer‐
ence if “reasonable minds reviewing the record might disa‐
gree about the finding in question.” Brumfield v. Cain, 135 S.
Ct. 2269, 2277 (2015) (internal quotations and citations omit‐
ted); see also Dassey v. Dittmann, 877 F.3d 297, 302–03 (7th Cir.
2017) (en banc). The petitioner must show by clear and con‐
vincing evidence that the findings were unreasonable. 28
U.S.C. § 2254(e)(1).
The general principles regarding coerced statements are
well established. The Due Process Clause of the Fourteenth
Amendment forbids the use of an involuntary statement
against a criminal defendant. See Miller v. Fenton, 474 U.S. 104,
109 (1985). To determine if a statement was voluntary or not,
courts evaluate the totality of the circumstances. Schneckloth v.
Bustamonte, 412 U.S. 218, 226 (1973). Some relevant factors in‐
clude the length and nature of the interrogation, the age and
education of the suspect, and the psychological impact of the
questioning on the defendant. Id. The defendant has the bur‐
den of establishing that statements were coerced. See Colorado
v. Connelly, 479 U.S. 157, 164–65 (1986).
A. Lynumn v. Illinois and its Successors
Janusiak first argues that the state appellate court’s deci‐
sion was both contrary to and an unreasonable application of
Lynumn v. Illinois, 372 U.S. 528 (1963), one of the Supreme
Court’s leading cases on the admissibility of confessions
No. 19‐1198 13
extracted through threats or promises related to a suspect’s
children. In light of the fraught emotions that can arise when
the police talk to a suspect about her children, we asked coun‐
sel at oral argument to address when and to what extent po‐
lice officers could discuss children with a suspect during a
custodial interrogation. Counsel suggested that officers may
discuss children “in the context of an interview” but may not
“use” them to manipulate a person into making statements.
We first review what the Supreme Court and other circuits
have ruled is not permissible in interrogations involving
threats or promises concerning a suspect’s close family mem‐
bers. We then turn to the merits of Janusiak’s arguments.
We begin with three cases in which the police crossed the
line to obtain confessions or concessions by threatening sus‐
pects with lost access to children or other close family mem‐
bers. The first is Lynumn itself, decided before Miranda. Offic‐
ers arrested Lynumn for selling marijuana to a friend who had
“set her up,” and they “encircled” her at her home to question
her there. 372 U.S. at 529, 534. During the questioning they
threatened that “state financial aid for her infant children
would be cut off, and her children taken from her, if she did
not ‘cooperate.’” Id. at 534. Lynumn “had no previous experi‐
ence with the criminal law, and had no reason not to believe
that the police had ample power to carry out their threats.” Id.
The Supreme Court held that “a confession made under such
circumstances must be deemed not voluntary, but coerced.”
Id.
The second case is Haynes v. Washington, 373 U.S. 503
(1963), also decided before Miranda. Officers arrested Haynes,
took him to the police station, and refused to allow him to
contact a lawyer or his wife despite “several specific requests”
14 No. 19‐1198
to do so. Id. at 507. Haynes was told, however, that he might
be allowed to contact a lawyer and his wife if he confessed. Id.
Haynes then signed one incriminating statement, but the po‐
lice continued to prevent him from contacting an attorney or
his wife and did not advise him that he could remain silent.
Id. at 508–11. Haynes was allowed to call his wife only “some
five or seven days after his arrest.” Id. at 512. The Supreme
Court suppressed the confession because the police obtained
it “with the express threat of continued incommunicado de‐
tention” if Haynes continued to resist and “the promise of
communication with and access to family” if he relented. Id.
at 514.
The third case with improper threats to cut off contact with
close family members is United States v. Ivy, 165 F.3d 397 (6th
Cir. 1998), where police entered a home to search for a fugi‐
tive. They did not find the fugitive, but they found Ivy and his
girlfriend. The officers asked them for permission to search
the house. After both refused, the police handcuffed the girl‐
friend by her leg to a table. The police also took and held the
couple’s baby while telling Ivy that he could either consent to
the search or the police would arrest everyone in the house
(including his girlfriend) and would take the baby into pro‐
tective custody. See Ivy, 165 F.3d at 400–03. Ivy eventually al‐
lowed the police to search the home after they had threatened
him and his girlfriend for an hour and a half. The search
turned up some cocaine. The Sixth Circuit found that Ivy’s
consent to search was involuntary based on the totality of the
circumstances. Id. at 404.
Lynumn, Haynes, and Ivy establish and illustrate what the
police may not do. Many other cases, however, distinguish
those cases based on key factual differences. For example, in
No. 19‐1198 15
United States v. Santiago, 428 F.3d 699 (7th Cir. 2005), we dis‐
tinguished Ivy, finding that the district court did not clearly
err in finding consent to a search voluntary. The district court
“did not actually find that the agents had threatened to arrest
Santiago’s fiancée and have their children taken into protec‐
tive custody” if Santiago did not consent. Id. at 705.
Another example is United States v. Hufstetler, 782 F.3d 19
(1st Cir. 2015), which distinguished Lynumn. The police ques‐
tioned a suspect who was concerned about the potential crim‐
inal liability of his girlfriend. Investigators told Hufstetler:
“There’s obviously different outcomes for [her], depending
on what it is in the details that we’re looking for here.” Id. at
21. The officers also told Hufstetler “that they could not, and
would not, promise [him] anything in exchange for his con‐
fession.” Id. at 25. The First Circuit distinguished Lynumn be‐
cause the police “never lied, exaggerated the situation, or con‐
ditioned either individual’s release on Hufstetler’s willing‐
ness to speak.” Id. Rather, the police properly emphasized the
“indisputably true fact” that Hufstetler’s girlfriend could be
criminally liable unless “new information came to light to dis‐
count her culpability.” Id.
Within a single case on direct review, courts may suppress
some statements and not others. In United States v. Syslo, 303
F.3d 860 (8th Cir. 2002), police questioned a couple involved
in a bank robbery while their children were at the police sta‐
tion. The police told the wife during questioning that “she
would not go to jail if she did not lie,” to which she responded
that she would consider lying to the officers “[i]f I didn’t have
my children to worry about.” When questioning resumed
later, the police told the wife “you’re trying to protect yourself
’cause you know right now you’re sitting on the line whether
16 No. 19‐1198
you go to jail or you walk out of here with your kids.” Id. at
864. The district court suppressed the wife’s statements fol‐
lowing that latter exchange but allowed the earlier statements.
The wife pleaded guilty, and the Eighth Circuit affirmed. It
explained that the wife’s earlier statements were admissible
because she voluntarily brought her children to the police sta‐
tion and because her statement that she would consider lying
if not for the children “reveals independent and deliberate
thought rather than an overborne will.” Id. at 867.
When reviewing state‐court decisions, the deferential
standard of § 2254(d) requires federal courts to deny relief
where reasonable jurists might disagree about police behavior
involving statements about close family members. For exam‐
ple, in Brown v. Horell, 644 F.3d 969 (9th Cir. 2011), police in‐
terrogated a man suspected of murder. He had a pregnant fi‐
ancée, and he mentioned that her pregnancy was the best
thing to happen to him in his life. Id. at 980. From that point
on, the police “coerced Brown into confessing by conditioning
his ability to be with his child on his decision to cooperate
with the police.” Id. For example, among the police officer’s
comments were “I can’t imagine what would keep you from
telling the truth with that little baby boy waitin’ to be born,”
and “I think you are going to see your baby. I firmly believe
that,” as well as “Only reason I’m talking to you is cuz you
got a baby on the way, and I’d like to see you get to be with
that baby.” Id. at 981. Even though officers “expressly condi‐
tioned Brown’s ability to be with his child on his compliance
with [the] questioning” and “deliberately prey[ed] upon …
Brown’s expression of his overwhelming desire to witness his
child’s birth,” the Ninth Circuit affirmed denial of the peti‐
tion. While the court “likely” would have reached a different
result on direct review, it reasoned that other federal courts
No. 19‐1198 17
had interpreted Lynumn “to mean that threats or promises re‐
lating to one’s children or family … may be considered as part
of the totality of the circumstances,” and the totality in
Brown’s case did not clearly cross the line of coercion. Id. at
981–82 (internal quotation marks omitted).
McCalvin v. Yukins, 444 F.3d 713 (6th Cir. 2006), reversed
the grant of a habeas petition in a murder case. During an in‐
terrogation into the death, which occurred from a car colli‐
sion, McCalvin initially maintained that the victim’s death
was an accident. Id. at 715. One interrogator told McCalvin
“that if she went to prison for first‐degree murder, she would
spend the rest of her life in prison and would not have contact
with her family, including her children.” Id. at 715–16.
McCalvin then confessed. Id. at 716. The Sixth Circuit held
that relief must be denied for several reasons: McCalvin had
been warned of her rights under Miranda and had voluntarily
waived her rights; id. at 720–21; the police may discuss with
suspects “the seriousness of the crime for which they are be‐
ing investigated,” id. at 721; and “McCalvin was not made to
fear more than the result of being convicted of first‐degree
murder,” which necessarily included not being with her chil‐
dren every day, id. Fair‐minded jurists could conclude, held
the court, that the officers’ statements were not impermissibly
coercive. Id. at 720‐21.
Another example is Cooper v. Bergeron, 778 F.3d 294 (1st
Cir. 2015). There, a detective told Cooper that if he did not
speak with the detective, he would see to it that a state agency
would take his son away from his ex‐wife. Id. at 297. Affirm‐
ing the denial of relief under § 2254(d), the First Circuit said
the state court “considered the impact of the detective’s ex‐
ploitation of the parent‐child relationship in light of other
18 No. 19‐1198
circumstances that evinced Cooper’s clear‐mindedness.” Id. at
306–07. In particular, the state court evaluated the totality of
the circumstances, including the effect of the threat to take
away Cooper’s child, and reasonably determined that
Cooper’s will was not overborne. Id. at 307–08.
Several lessons emerge from the Lynumn line of cases.
First, explicit threats to eliminate or interfere with a suspect’s
custody of a young child unless the suspect provides satisfac‐
tory statements to the police are presumed to be coercive. See
Lynumn, 372 U.S. at 534; Ivy, 165 F.3d at 402–03. The same is
true of threatening the child’s support from the state or con‐
ditioning future interactions on cooperation. See Lynumn, 372
U.S. at 534; Brown, 644 F.3d at 980–81; Ivy, 165 F.3d at 402–03.
Second, police are not forbidden from talking about a sus‐
pect’s children. See Hufstetler, 782 F.3d at 23–24. Nor would
that be practical. It is only natural for a criminal suspect to
want to know what could happen with her children. When
the suspect raises the matter, a police officer can avoid a later
accusation of impermissible exploitation by avoiding the
question with a truthful statement (e.g., “I don’t know what
will happen to your kids”). The police also can talk truthfully
about the likely consequences for children when a parent is
arrested, jailed, convicted, or imprisoned. See Santiago, 428
F.3d at 705 (holding that suspect who realized his family may
be in legal jeopardy was not coerced into providing consent
to search home when he negotiated commitment that his fam‐
ily be “kept out of this”); McCalvin, 444 F.3d at 721 (informing
suspect of consequences of first‐degree murder conviction, in‐
cluding separation from children and family, was not coercive
but rather was accurate way of conveying “the seriousness of
the crime”).
No. 19‐1198 19
Third, any statements about a child’s custody should not
be false; otherwise the suspect’s will may be overborne by lies
that have nothing to do with the strength of the evidence. See
United States v. Nichols, 847 F.3d 851, 857 (7th Cir. 2017), quot‐
ing United States v. Villalpando, 588 F.3d 1124, 1128 (7th Cir.
2009); see also Frazier v. Cupp, 394 U.S. 731, 739 (1969) (noting
false promises are relevant factor under totality of circum‐
stances); Hufstetler, 782 F.3d at 25. False promises of leniency
can render statements involuntary. See Aleman v. Village of
Hanover Park, 662 F.3d 897, 906 (7th Cir. 2011); United States v.
Montgomery, 555 F.3d 623, 629–30 (7th Cir. 2009) (investiga‐
tor’s misstatement of potential sentences “does not make the
interrogation coercive, however, especially when the purported
sentence was not linked to [defendant’s] willingness to talk to the
investigators” (emphasis added)); Brown, 644 F.3d at 981. Sus‐
pects may assume they will have access to their children as a
form of leniency for cooperating, so such false promises may
be particularly coercive. That possibility is heightened if the
police make promises or threats they lack the power to carry
out lawfully. See Lynumn 372 U.S. at 534 (suspect had “no rea‐
son not to believe that” police could carry out threat); Hernan‐
dez ex rel. Hernandez v. Foster, 657 F.3d 463, 482 (7th Cir. 2011)
(in § 1983 suit, noting that “where an official makes a threat to
take an action that she has no legal authority to take, that is
duress”); Brown, 644 F.3d at 981.
Against this background, we turn to the specifics of Ja‐
nusiak’s arguments that the Wisconsin appellate court’s deci‐
sion is both contrary to and an unreasonable application of
Lynumn. We conclude first that the state court’s decision af‐
firming her conviction is not contrary to Lynumn because the
case is readily distinguishable on salient grounds. No officer
suggested that Janusiak would lose custody of her children
20 No. 19‐1198
(or that their state aid would be cut off) unless she confessed
to the crime. Also, before the officers questioned Janusiak,
they warned her of her right to remain silent and her right to
consult with an attorney. See Janusiak, 367 Wis. 2d 349, ¶¶ 17–
18; see also Dickerson v. United States, 530 U.S. 428, 444 (2000);
Berkemer v. McCarty, 468 U.S. 420, 433 n.20 (1984). Finally, Ja‐
nusiak had five prior convictions (albeit for relatively minor
offenses), giving her some experience with the criminal justice
system. See Janusiak, 367 Wis. 2d 349, ¶ 13. Janusiak’s case is
distinguishable from Lynumn on reasonable grounds.
The state court also did not unreasonably apply Lynumn
to Coppernoll’s comments and the handful of comments by
the officers to Janusiak about her children. The questioners
spoke the truth when they said that if Janusiak had harmed
Payten, then she might lose custody of her children, and that
if she did no harm, she could remain with them. They did not
threaten that she would lose her children unless she confessed.
Janusiak, 367 Wis. 2d 349, ¶¶ 22–25. Officers may discuss the
true and serious consequences of arrest or incarceration. See
McCalvin, 444 F.3d at 721. Lynumn does not require suppres‐
sion because a suspect hears that the outcome of her case may
result in the loss of custody of her children. Lynumn does not
require suppression here, and at the very least, fair‐minded
judges could reach that conclusion. See Richter, 562 U.S. at 101.
Janusiak objects that the state court, in evaluating the com‐
ments of social worker Coppernoll, disregarded Lynumn. But
the court discussed Lynumn when evaluating the officers’
statements, and its rationale for finding Coppernoll’s state‐
ments non‐threatening was consistent with Lynumn. The
court was not required to repeat its citation in the portion of
its opinion about Coppernoll. See Mitchell v. Esparza, 540 U.S.
No. 19‐1198 21
12, 16 (2003) (explaining that “state court need not even be
aware of” Supreme Court precedents so long as its reasoning
and result do not contradict them); Gilbert v. Merchant, 488
F.3d 780, 793 n.2 (7th Cir. 2007); see also Johnson v. Pollard,
559 F.3d 746, 754 (7th Cir. 2009) (describing Lynumn’s hold‐
ing); Holland v. McGinnis, 963 F.2d 1044, 1051 (7th Cir. 1992)
(same).
B. Miranda v. Arizona
Janusiak next contends that the state court’s decision is
contrary to and an unreasonable application of Miranda itself.
She argues that, by seeking exculpatory statements from Ja‐
nusiak, Coppernoll and the officers violated the prohibition
and principles set forth in this passage of Miranda:
The warnings required and the waiver neces‐
sary in accordance with our opinion today are,
in the absence of a fully effective equivalent,
prerequisites to the admissibility of any state‐
ment made by a defendant…. The privilege
against self‐incrimination protects the individ‐
ual from being compelled to incriminate himself
in any manner; … it does not distinguish de‐
grees of incrimination. Similarly, … no distinc‐
tion may be drawn between inculpatory state‐
ments and statements alleged to be merely ‘ex‐
culpatory.’ … [S]tatements merely intended to
be exculpatory by the defendant are often used
to impeach his testimony at trial or to demon‐
strate untruths in the statement given under in‐
terrogation and thus to prove guilt by implica‐
tion. These statements are incriminating in any
meaningful sense of the word and may not be
22 No. 19‐1198
used without the full warnings and effective
waiver required for any other statement.
384 U.S. at 476–77.
The state court’s decision is not contrary to Miranda. Even
though the officers and Coppernoll solicited exculpatory
statements from Janusiak, they did so only after giving her
Miranda warnings and receiving her valid waiver. The quoted
passage holds that courts may not distinguish between excul‐
patory and inculpatory statements only to determine whether
suppression is required when warning were not given. Be‐
cause Janusiak received Miranda warnings, the state court’s
ruling did not contradict the principle in this passage.
The state court also did not unreasonably apply Miranda.
When deciding that Coppernoll did not threaten Janusiak, the
state court said: “if anything, Coppernoll’s statements would
most likely have had the effect of causing Janusiak to continue
to deny that the baby was injured in any manner at her home,
whether accidental or otherwise.” Janusiak, 367 Wis. 2d 349
at ¶ 23. Such a denial, if unwarned, might be the kind of “ex‐
culpatory” statement that Miranda protects. See Davis v.
United States, 512 U.S. 452, 457 (1994) (describing Miranda’s
holding). But Janusiak received her warnings and voluntarily
waived her privilege.
C. Totality of the Circumstances
Next, Janusiak argues that the state appellate court unrea‐
sonably applied the Supreme Court’s totality‐of‐the‐circum‐
stances test by evaluating the circumstances of her interroga‐
tion “in complete isolation from one another.” When, as here,
different factors point in opposite directions, it is difficult to
show that a state court’s ruling that a statement was voluntary
No. 19‐1198 23
was unreasonable under § 2254(d). See Dassey, 877 F.3d at 305,
313 (en banc); see also Yarborough v. Alvarado, 541 U.S. 652,
664–65 (2004) (habeas review is deferential where state courts
have applied such general rules with leeway for case‐by‐case
determinations).
The state court correctly recognized and reasonably
weighed the pertinent circumstances. It observed that the in‐
terrogation was lengthy, cf. Berghuis v. Thompkins, 560 U.S.
370, 386–87 (2010), and that Janusiak was eight months preg‐
nant, see Kunik v. Racine Cty., 106 F.3d 168, 174–75 (7th Cir.
1997) (section 1983 suit). But it also recognized that she had a
high‐school education, prior experience with law enforce‐
ment, see Bustamonte, 412 U.S. at 226–27, Miranda warnings,
and repeated breaks.
The court also reasonably viewed as non‐coercive the of‐
ficers’ statements that Janusiak’s stories did not match the
medical evidence and that “you’re not giving us anything to
work with.” First, those statements appear to have been fac‐
tually correct. Second, even if the officers misled Janusiak or
exaggerated what other evidence showed, those techniques
do not render a confession involuntary. E.g., Dassey, 877 F.3d
at 313, citing Frazier v. Cupp, 394 U.S. 731, 739 (1969); United
States v. Sturdivant, 796 F.3d 690, 697 (7th Cir. 2015) (“[W]e
have repeatedly held that a law‐enforcement agent may ac‐
tively mislead a defendant in order to obtain a confession, so
long as a rational decision remains possible.”) (alteration in
original), quoting Conner v. McBride, 375 F.3d 643, 653 (7th Cir.
2004); United States v. Rutledge, 900 F.2d 1127, 1131 (7th Cir.
1990) (“the law permits the police to pressure and cajole, con‐
ceal material facts, and actively mislead—all up to limits not
exceeded here”).
24 No. 19‐1198
Janusiak counters that the state court assessed the signifi‐
cance of her personal characteristics in a section of its opinion
separate from its evaluation of the officers’ tactics. But the
court assessed all the circumstances. The organization of its
opinion does not show that it failed to weigh all the factors.
See Johnson v. Williams, 568 U.S. 289, 300 (2013) (federal courts
may not tell state courts how to write opinions). The state ap‐
pellate court did not unreasonably apply the totality‐of‐the‐
circumstances test.
D. Factual Findings
Finally, Janusiak contends that the state appellate court
made two unreasonable factual findings. First, the court
found that the officers “wait[ed] for her to stop crying and
calm down before questioning her.” Janusiak, 367 Wis. 2d 349,
¶ 20. Janusiak points out that she cried many times after ques‐
tioning started. The state court recognized this. It said that the
officers “did not appear to take advantage of her emotional
state when she cried in their presence.” ¶ 17 (emphasis added).
The state court reasonably found that, before questioning be‐
gan, Janusiak stopped crying. See Brumfield, 135 S. Ct. at 2277.
Second, the state appellate court wrote that the officers
told Janusiak that “she could go home if she was able to pro‐
vide an exculpatory explanation of the baby’s injuries that did
not contradict the medical evidence.” Janusiak, 367 Wis. 2d
349, ¶ 27 (emphasis in original). Janusiak contends that the of‐
ficers asked her for any “explanation,” not just an exculpatory
one, that matched the medical evidence. But in the context of
their expressed desire to “send you home with your kids,” it
was not unreasonable to construe the officers’ statement as a
request for an explanation that would exonerate Janusiak.
No. 19‐1198 25
In sum, the Wisconsin Court of Appeals’ decision was not
contrary to or an unreasonable application of clearly estab‐
lished federal law, nor was it based on any unreasonable fac‐
tual finding. The district court’s judgment denying Janusiak’s
§ 2254 petition is
AFFIRMED.