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Judge dismisses indictment against man accused of murdering infant

Judge finds counsel was denied, confession was involuntary

Posted: July 1, 2012 - 12:09am

The indictment against a 23-year-old man accused of murdering his girlfriend’s 4-month-old baby in 2010 has been dismissed, which means he won’t have to stand trial unless prosecutors re-indict him.

Juneau Superior Court Judge Philip Pallenberg ruled Thursday to dismiss the indictment against David James Paul after finding that Paul’s confession — accidently dropping the infant on a linoleum bathroom floor and shaking her once right afterward to make her stop crying — was involuntary.

“No murder is more serious than the murder of a child,” Pallenberg wrote in his ruling. “The seriousness of the crime charged, however, does not lessen the court’s — or the police’s — obligation to follow the law.”

Paul’s attorney, public defender Eric Hedland, argued that Juneau Police Department officers ignored his client’s request for counsel during an interview at the police station on Aug. 18, 2010, and then coerced a confession.

There was no one factor in and of itself that rendered the statements involuntary, Pallenberg ruled, but given the “totality of the circumstances” surrounding the confession, “I cannot find the state has met its burden of showing that the subsequent statements were made voluntary.”

Rian Jambi Orr

Paul was indicted by a Juneau grand jury in July 2011 for second-degree murder and manslaughter in connection to death of Rian Jambi Orr.

Orr was taken to Bartlett Regional Hospital the morning of Aug. 9, 2010, after Paul and his live-in girlfriend, the baby’s mother Jacqueline M. Orr, noticed the infant was seizing. They took her to BRH, where it was discovered she had a massive brain injury.

The baby was medevaced to Harborview Medical Center in Seattle that night and required brain surgery. Orr, who was 12.9 pounds and 22 inches long, died on Aug. 15, 2010.

The King County Medical State Examiner in Seattle ruled the death a homicide, listing the cause of death as a subdural brain hematoma and subarachnoid hemorrhage. That means there was bleeding between the brain and the thin tissues that cover the brain, and the examiner testified blood was found around, over and inside the brain.

The examiner, Dr. Richard Harruff, also said Orr had older injuries that predated the head injuries, according to court documents, including multiple rib fractures that were about two weeks old, a femur fracture and bruising on her chest.

Harruff said the head injury was likely caused by “blunt force” to her head with a “soft object,” according to his report. A hypothetical example of that would be a baby being thrown on a bed.

Likewise, another doctor who examined Orr at Harborview Medical Center, Dr. Naomi Sugar, testified that the cause of death was something akin to Shaken Baby Syndrome, which is now referred to as Abusive Head Trauma. Sugar noted that Orr’s brain injury did not stem from an “impact injury,” like hitting a hard surface, since there was no skull fracture.

Sugar also testified she thought that the older injuries were caused by child abuse, according to charging documents.

 

The polygraph

Police initially interviewed both Paul and the baby’s mother at BRH, and quickly fingered Paul as the prime suspect, the lead police investigator Kim Horn testified during a series of evidentiary hearings in May.

Paul continued to deny any wrongdoing, including dropping or shaking the baby, until the four-hour long interview at the JPD station on Aug. 18 when Paul agreed to take a polygraph, was told he failed, and admitted to Investigators Horn and Russ Haight that he accidently dropped the baby on the bathroom floor.

But before Paul agreed to take the polygraph, he had asked for a lawyer. Pallenberg described his request as a “clear unambiguous, unequivocal request for counsel” which police ignored.

Pallenberg called that a “critical moment” in the interview, and that “everything that happened thereafter must be viewed through the lens of those events.”

Eventually, Paul volunteered to take the polygraph because his girlfriend was still in the police waiting area waiting for him, and “we don’t like being away from each other for very long. I get — it upsets us both,” according to court documents.

Paul then asked to use the restroom in the station, and he was escorted by an officer who remained in the bathroom while Paul urinated. After returning to the interview room, he was read his Miranda warning, then took the polygraph.

JPD Sgt. Steve Hernandez administered three successive polygraph examinations, asking three relevant questions: 1) Do you know how (Orr) sustained her injuries? 2) On the morning on Aug. 9, did you get frustrated with (Orr) and cause her injuries? 3) Have you told the complete truth to police detectives?

After the second test, Hernandez told Paul he was showing deception on those questions. Paul continued to deny doing anything wrong, and completed the third test. Afterward, Paul was told he failed the test.

Pallenberg noted in his ruling that, after listening to testimony from Hernandez during the May evidentiary hearings, he was not persuaded that the polygraph was reliable nor that Hernandez was qualified to be administering it. Officers testified during the hearing that they use polygraphs as an interrogation tool, and Paul’s attorney had argued that the only reason it was administered was to tell Paul he failed, no matter how he did.

“The test was administered in such a way that it could not be scored,” Pallenberg said in his ruling. “Sergeant Hernandez was vague about exactly what constituted an indicator of deception, and suggested that essentially any response was an indicator of deception, which is not plausible.”

 

The interrogation

Paul was next taken to an interview room and interrogated by Horn and Haight, at which point the pressure on Paul began to increase. Before confessing, the officers made several indications that Paul could face harsher punishment if he did not change his story, which Pallenberg noted the Alaska Supreme Court ruled in Beavers v. State is unacceptable. Haight also made both implicitly threatening statements and false promises, Pallenberg found, by saying that Paul should be locked up for the rest of his life, and conversely, by promising leniency if Paul said he caused the infant’s injuries on accident.

Police also used Paul’s girlfriend as a bargaining chip against him, Pallenberg said. First, they used her to facilitate their interview with Paul by getting her to take him to the station; they preventing the two from seeing each other by “sidestepping” Paul’s requests to see her during the interviews; and they referenced her to get Paul to change his story by saying things, such as, she wanted him to say he caused the injuries and that she would stand by him if he apologized.

Pallenberg likened that tension to a scenario in a federal Ninth Circuit case, U.S. v. Tingle. The judge quoted that case: “Law enforcement conduct which renders a confession involuntary does not consist only of express threats so direct as to bludgeon a defendant into failure of the will. Subtle psychological coercion suffices as well, and at times more effectively, to overbear ‘a rational intellect and a free will.’ As the Supreme Court noted in Malloy, ‘(W)e have held inadmissible evidence even a confession secured by so mild a whip as the refusal, under certain circumstances, to allow a suspect to call his wife until he confessed.’”

Pallenberg noted in his own words, “Even though it may not be explicit, this sort of pressure turns the relationship between loved ones into a bargaining chip. This is the type of ‘improper’ influence underlying the suppression of statements in Tingle.”

At the end of the interrogation, Paul admitted to accidently dropping the baby on the bathroom floor before her morning feeding. He said he was cradling her when he hit the bathroom door frame and dropped her. She hit her head once and then a second time before he was able to pick her up, Paul said, according to prosecutors.

Paul later told police in an interview — the day he was arrested on a warrant nearly a year later in July 2011 — “When I picked her up she was crying so I said “Hey!” and shook her only one time. I had my hands to her side, my pinkies holding her back and my thumbs tight on her chest. When I did that her head flopped about three times. It went back once, forward, back and she caught herself. I may have squeezed hard enough to cause the bruises on her chest. She stopped crying after that.”

 

The ruling

Pallenberg said in his 20-page ruling that the court must consider the totality of the circumstances surrounding the confession to determine whether it is voluntary and admissible, or coerced and inadmissible. The Alaska Supreme Court has ruled that confessions cannot be extracted by any sorts of violence, direct or implied promises “however slight”, nor by the exertion of any improper influence. There are also other considerations, such as age, mentality and prior criminal experience of the accused; the length, intensity and frequency of interrogation; physical deprivation or mistreatment; and the existence of threat and inducement.

Pallenberg summed up this case by saying:

“Mr. Paul asked for a lawyer and was denied one. He was escorted to and from the bathroom and supervised while he urinated. He asked to leave and was not allowed to do so. He took a polygraph and was given an inaccurate account of his performance. He was threatened with the possibility of life in prison for being dishonest, and promised leniency if he said that he caused R.O.’s injuries by accident. He was repeatedly told that Jaki Orr wanted him to say that he caused R.O.’s injuries by accident, and was told she would stand by him if he apologized. At the time of these events, Mr. Paul was twenty-one years old. Although he had a number of misdemeanor convictions, he told police that he had never been interviewed before.

“No one of these factors, in and of itself, would require a finding that the subsequent statements were involuntary. However, when I consider — as the court must — the totality of the circumstances, I cannot find that the state has met its burden of showing that the subsequent statements were made voluntarily.”

The judge added that murder was the “ultimate crime,” and murder of a child was worse still. But he noted, “The requirement that only voluntary statements are admissible is not a technicality invented by judges to honor some abstract principle. Rather it is a recognition that the justice system is intended to be, at its root, a search for truth. Coerced confessions are excluded from evidence because they are inherently unreliable.”

After granting the motion to suppress statements, he also dismissed the indictment since the statements were central to the grand jury presentation, and without them, there is insufficient evidence in the grand jury record to support the indictment.

 

What comes next?

The judge threw out the July 9 trial start date in the case, but Paul is to remain in jail for the next 30 days while the state decides how to proceed.

Assistant District Attorney Angie Kemp said the District Attorney’s Office has yet to decide whether it will attempt to re-indict Paul before a second grand jury.

“I’m not even prepared to answer the question whether we’re seeking re-indictment or not,” Kemp told the judge during a hearing Thursday. She added she would let the court know in a week or two.

Pallenberg scheduled a status hearing in the case at the end of next month, and ordered bail to be continued until that time.

The judge said in the meantime, he will be issuing more rulings on pending motions in the case, such as whether the grand jury should have been allowed to hear testimony that Orr had older injuries that predated the fatal head injury.

• Contact reporter Emily Russo Miller at 523-2263 or at emily.miller@juneauempire.com.

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