Sharp v. Rohling, 793 F.3d 1216 (7/15/15) (Kan.) (Published) - A remarkable 10th grant of habeas relief under the AEDPA standards for the admission of an involuntary statement. During a video-recorded custodial interrogation, after admitting she helped burn the murder victim's belongings, Ms. Sharp asked an officer if she was going to jail. The officer said:"no" 10 times and then explained: "You are a witness to this thing as long as you do not do something dumb and jam yourself." He added: "Just don't tell me no, if I ask you something." Later the officer assured her they were going to work together to get her and her children shelter. The children were brought to her. After Ms. Sharp accommodated the officer with incriminating statements and demonstrations at the scene of the crime, the officer put her in jail. She accused the officer of tricking her, as she was led to her cell. The state trial court found Ms. Sharp's statements to be voluntary because she seemed relaxed and unstressed during the interrogation. The state appellate court found no promise of leniency or at least that any promise was conditioned on not incriminating herself. The court also found Ms. Sharp did not confess in exchange for helping her children or, in any event, it was just a promise of a "collateral benefit."

The 10th held the state appellate court had made an unreasonable factual finding. The officer did in fact make a promise of leniency. After Ms. Sharp made an incriminating statement, he told her she would not go to jail, despite her confession This was not a simple exhortation to tell the truth. The officer's subsequent "something dumb" and "don't say no" comments did not alter the clear leniency promise. The promise was not contingent on her not incriminating herself because she already had. Because the state court's decision was based on an unreasonable fact finding, the 10th reviewed the voluntariness question de novo in light of the totality of the circumstances . Despite factors weighing in favor of voluntariness---the interrogation "only" lasted 5 hours and the officer provided Ms. Sharp with Miranda warnings and water---her statements were involuntary. The 10th reached that conclusion because: Ms. Sharp was promised no jail; the "something dumb" comment meant no prosecution if she cooperated; the officer exhorted her not to say no to his questions; the promise of shelter was inconsistent with arrest; retrieving the children added weight to the no-jail promise; and Ms. Sharp's surprised and angry reaction to her arrest indicates her statements were not the product of her free will. The circumstances critically impaired Ms. Sharp's capacity for self-determination.

The admission error was not harmless. The state stressed to the jury that Ms. Sharp said to the officer [post-promise] she objected that the victim should not be killed "here," not that he shouldn't be killed somewhere else. In her post-promise statements, Ms. Sharp described in detail how she took the lead in burning the victim's belongings to destroy evidence of the crime. Plus the state used her written incriminating statement as well. And, absent her involuntary statements, she may not have testified, leading to an admission on cross that "in a way" the burning was her idea. Evidence aside from her involuntary statements was not nearly as incriminating as her statements. So long to Ms. Sharp's convictions for murder and kidnaping.