James J. Kilpatrick
UNIVERSAL PRESS SYNDICATE
The mill wheels of the law grind slowly, but they seldom grind as slowly as they are grinding in the case of Michael Edward LeBrun. He may be tried in 2005 on a charge of committing murder in 1968. This is the story.
Thirty-six years ago, the USS Cacapon, a naval fueling vessel, was moored in Subic Bay in the Philippines. Ensign Andrew Muns was the ship's disbursing officer. LeBrun was his disbursing clerk. On the night of Jan. 16, Muns mysteriously disappeared. Some $8,600 in cash was missing. It was assumed at the time that Muns was the guilty party.
Muns' sister, Mary Lou Taylor, refused to accept this theory. She kept after the Navy until the case was reopened in 1999. A lengthy investigation ensued. In September 2000 agents of the Naval Criminal Investigative Service (NCIS) went to LeBrun's place of employment in Missouri. They had become convinced that Muns caught LeBrun robbing the office safe, that LeBrun strangled the ensign, dumped his body in a tank of caustic fuel oil, and feigned innocence.
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The NCIS agents, accompanied by officers of the Missouri Highway Patrol, took LeBrun to a windowless room at state police headquarters. The agents made what Circuit Judge David R. Hansen later would describe as "a conscious decision not to recite the Miranda warnings." They thought that no warnings were required because LeBrun was not then "under arrest." They believed "psychological ploys" were permissible.
Thus the naval agents told the defendant there was "absolutely no doubt" of his guilt. They said the U.S. attorney in Alaska was ready to charge him with premeditated murder (which was untrue), but if LeBrun could convince them that the crime was spontaneous he would be charged only with manslaughter. After 30 years the statute of limitations would prevent any trial at all. This colloquy appears in the record:
"LeBrun: So, am I hearing that I won't be prosecuted?
"Agent Grebas: That's what you're hearing.
"Agent Early: If it's spontaneous and that's the truth. You will not be prosecuted.
"Agent Grebas: That's absolutely right.
"LeBrun: I am here to tell you there was no premeditation. It was spontaneous."
In barely half an hour, LeBrun confessed. He was charged with felony murder, with the possible punishment of life in prison. The U.S. District Court granted his motion to suppress the confession, but last April the 8th Circuit voted 7-4 to reverse. LeBrun's appeal to the Supreme Court is pending.
Speaking for the circuit majority, Judge Hansen commented that "some degree of coercion is part and parcel of the interrogation process." The defendant, he emphasized, is no Bambi in the forests of the law. Now in his mid-50s, LeBrun has a college degree. He is "an educated, sophisticated individual" who has completed one year of law school. Under questioning he was calm and composed. "It is apparent that LeBrun is an intelligent, calculating person who erroneously perceived a potential loophole in the prosecution's case and tried to take advantage of it by confessing to 'spontaneous' murder." The agents' false promises were "merely one factor in the totality of circumstances."
Judge Morris Sheppard Arnold, writing vigorously for the dissent, saw the confession as an inadmissible "product of an overborne will." The agents had threatened to ruin LeBrun financially, preyed on fears related to his cancer, vividly described the damage his imprisonment would have on his family, his reputation and his pregnant wife. They had invented phantom witnesses to the killing and contrived a bizarre tale of a suicide note implicating the defendant. They had falsely promised him that he would not be prosecuted if he would say what they wanted him to say. They had lied in assuring him that Ensign Muns' family approved of the deal.
Cases like this one, said Judge Arnold, create not merely an aversion to something called coercion, but also "a general uneasiness about the fairness of admitting confessions that were induced by knowing, lurid falsehoods and unfulfilled promises, whether 'coercive' or not."
LeBrun's appeal to the Supreme Court presents a close question of admissible evidence in the realm of criminal law: What limits apply to the government's questioning of a suspect? Must the cops "play fair"? Everyone would agree that torture is out. Is deception in? It doesn't offend me - not grievously, anyhow. Criminal investigation ain't no game of beanbag.
James J. Kilpatrick can be reached via e-mail to firstname.lastname@example.org.