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IN THE CIRCUIT COURT OF THE STATE OF OREGON

FOR MULTNOMAH COUNTY

THE STATE OF OREGON, No. C 15CR46257

Plaintiff, DA 2120420-1

v. Homer Jackson Memoranda of Law Regarding the

Defendant. Admissibility of Statements to Defendant's Family Post-Interrogation

5 Comes now Rod Underhill, Multnomah County District Attorney, by and through Kirsten

Snowden and Jenna Plank, Deputy District Attorneys, moving this court to admit statements made

6 by Defendant Homer Jackson to his sister immediately after the conclusion of his police

7 interrogation on 10/16/2015. For the reasons outlined below, these statements are sufficiently

attenuated from any prior illegalities found by the court in the preceding interrogation, are not

8 themselves the product of coercion, and are therefore properly admissible

FACTS 9

At approximately 1:15pm on 10/15/2015, during the first day of interrogation (bate stamped

10 page 1251; attached as Exhibit A), Defendant asks detectives if he can call his sister, saying "so is

there a possibility, after a little while, I can make a couple of phone calls?" A few minutes later

11 Defendant reiterates, (bate stamped page 1252), "all I need to do is call my sister, like I said she

12 worries." This interchange occurs prior to any confession.

The next day, 10/16/2015 at approximately 9:55am, (bate stamped page 1219), Defendant

13 is told he's being taken to the Justice Center for booking on murder charges and that arraignment

will likely be Monday. At 9:56am on 10/16/17, (bate stamped page 1219), Defendant states "I 14

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10/17/2017 4:14:54 PM15CR46257

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want to see my cell phone so I can write my mother's number down and Kawana' s ... so that way

when a do get to a phone," detectives reply "and we're giving you a chance to call here free too, but

yeah, for sure."

At 10:28 on 10/16/07, (bate stamped pages 1224-1226), Defendant again says he "was

gonna call" his sister, and detectives call Defendant's mother from their phone and Defendant

leaves a voicemail. Defendant's mother calls back and they have a brief interchange end with

Defendant saying he'll her back later when she's in town. Immediately after, at 10:35, (bate

stamped pages 1226-1231 ), Defendant speaks with his sister. That interchange, attached as exhibit

A, begins with sister Kawana asking why Defendant is in jail, and him responding "for murder";

Kawana asking "oh my God did you do that" and Defendant responding "yeah I did one, the others

I'm not sure about."

Defendant's sister attempts (see bate stamped pages 1228-1229) to clarifY with Defendant

that he's been coerced or doesn't know what he's saying, followed by Defendant's repeated

confessions and statements of guilt. Defendant's sister states "Homer, has someone made you say

this," followed by Defendant's "no"; "I mean how can you say yes to something if you don't have

10 an attorney?" to which Defendant replies "because I did it." The rest of the interchange on base

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stamped page 1228 is between Defendant and his sister, with small comments by detectives

responsive to Defendant's questions, and contains no questioning from detectives.

Shortly after the call to Kawana, detectives show Defendant a photo of a victim that

Defendant had requested, then explain the DNA standard, take oral swabs, and malce small talk with

Defendant until he's taken down for booking. Detectives do not ask any further questions (bate

stamped page 1232).

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As the court will note from the interview recording and transcript, Defendant made

unsolicited requests to call family pre-confession on day one of the interview. The court will also

note there were several intervening events between day one and day two of the interview. The

implicitly coercive statements primarily occurred on day one of the interview, and Defendant slept

"ok", ate, and was administered his medications prior to day two of the interview (see bate stamped

page 1163). At close to the conclusion of day one Detectives also confirmed with Defendant "at

any time during this conversation have we threatened you with anything," Defendant's response

"no"; and "I never told you what sentence you're going to get for any of this, I've never said uh, that

you're, other than saying you're gonna get charged with multiple mmders I haven't said anything

other than that correct?" to which Defendant responded '.'uh huh" (see bate stamped page 1149).

Finally, the phone call on day two occurred at the functional end of the interview, at the

request of the Defendant, dming a time in the interaction where the tenor had clearly shifted from

interrogation to completion of house-keeping matters pre-booking. The conversation between

Defendant and detectives post phone call dealt with obtaining his oral swabs, and discussion about

his family in a friendly conversational tone (see bate stamped pages 1232-1241 ), further

underscoring that the interrogation had concluded.

LEGAL STANDARD

There are no Oregon cases addressing the exact fact pattern at hand here: where the court

has found that implied threats or promises of leniency were sufficiently compelling to warrant

suppression of a confession, and then a subsequent attenuated statement is made to a third party

disconnected from the interrogation, not in response to any continued interrogation. There are

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several cases dealing with the corollary question of the admissibility oflater attenuated admissions

1 following an earlier Miranda-violation, and evidence obtained after violation of a defendant's

2 invocation of a right to remain silent. State v. Powell similarly addresses the question of whether

the taint of a coercive Pre-Miranda interrogation renders inadmissible subsequent post-Miranda

3 statements obtained during subsequent interrogation. The overarching inquiry in all of these cases

is whether, in examining the totality of circumstances, the "subsequently obtained evidence, 4

physical or testimonial, is sufficiently a product of that [Art I Sect 12] violation to require

5 suppression." State v. Jarnagin, 351 Ore. 703, 716, 277 P.3d 535, 542, (2012).

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As a starting point, Or. Art. 1 Sect. 12 and ORS 136.425(1), prohibit the admission of

evidence against a defendant "when it was made under the influence of fear produced by threats,"

Or. Rev. Stat. Ann. § 136.425, regardless of whether or not the actor exerting the coercion or

receiving the illegally compelled statement is a "state actor". See State v. Rodriguez-Moreno, 273

Ore. App. 627,633,359 P.3d 532, 536, (2015) 1; See also State v. Powell, 352 Ore. 210,220,282

P.3d 845, 851, (2012f

1 Our case law reflects that ORS 136.425(1) and Article I, section 12 "do not differ in any respect that bears on" the

issue of voluntariness. Ruiz-Piza, 262 Ore. App. at 572-73. A decision whether to address the unpreserved statutory

issue is irrelevant to the outcome. See State v. Velykoretskykh, 268 Ore. App. 706, 707 n 2, 343 P3d 272 (2015)

(proceeding to federal constitutional grounds rather than unpreserved state grounds). State v. Rodriguez-Moreno,

273 Ore. App. 627, 633, 359 P.3d 532, 536, (2015)

2 First, it is important to understand that there can be a difference between the person who induces an involuntary

12 confession and the person to whom the confession is made. For instance, one person may threaten to kill a

defendant's child if the defendant does not falsely confess to a crime; the defendant may then confess to a

different person or set of persons. When the legislature amended the statute in 1957, it explicitly addressed the

circumstances in which a confession is made; it did not address the class of persons who induce the confession.

The 1957 amendment, however, altered the scope of the second category from coerced confessions made to

private persons to coerced confessions made 11 0therwise 11 than in the course of a judicial proceeding. When we

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accord the words "or otherwise" their plain meaning, it would appear that the 1957 amendment changed the

statute to apply to (1) coerced confessions made in the course of judicial proceedings and (2) coerced confessions

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This is also an area oflaw that has experienced a great deal of recent evolution and attention

1 by the Oregon Court of Appeals. The Oregon Court of Appeals most recently summarized the

2 applicable legal standard governing this inquiry relative to Miranda violations in 2016, stating that

"for purposes of determining whether disputed evidence "'derives from or is the product of"' an

3 Article I, section 12, violation, we look to the "'totality of the circumstances"' analysis employed in

Jarnagin. Statev. Swan, 276 Ore. App. 192,202,366 P.3d 802,808, (2016) (quoting Jarnagin, 351 4

· Ore. at 713, 716-17). Defense has previously cited the language of State v. Powell to the court as

5 the governing legal standard3, but as the court will see below, the law has evolved and become more

defined since Powell was decided. 352 Ore. 210,227,282 P.3d 845, 855, (2012).

6 The court should also note that Powell (and it's progeny, State v. Belle, 281 Ore. App. 208,

7 (20 16) dealt with evidence that was the product of an unlawful interrogation followed by the

administration of Miranda, and then subsequent interrogation. The evidence at issue here was not

8 obtained by any actors associated to the coercive taint, and was not the product of continued

interrogation. In this manner, the evidence at issue here, and the overall fact pattern bears a much 9

closer resemblance to the facts of State v. Delong, 357 Ore. 365, 370, 350 P.3d 433, 436, (2015),

10 State v. Koch, 267 Ore. App. 322, 334-335,341 P.3d 112, 119, (2014), and the most recent State v.

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Swan, 276 Or. App. 192, 202, 366 P.3d 802, 808 (2016). Delong, Koch, and Swan all address the

made other than in the course of judicial proceedings- or in other words, to all coerced confessions, regardless of

to whom or in what circumstances they are made. State v. Powell, 352 Ore. 210, 220, 282 P.3d 845, 851, 2012 Ore.

LEXIS 439, *17-19, 2012 WL 2928526

3 That the proper analysis is whether the State can prove by clear and convincing evidence that the "improper

coercion that compelled the first set of statements had been dispelled before the second set of statements were

14 made." State v. Powell, 2012 Ore. LEXIS 439, *32, 352 Ore. 210, 227, 282 P.3d 845, 855, (2012).

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admissibility of evidence obtained post Art. 1 Sect. 12 violation, where the evidence itself is not also

1 the product of continued interrogation.

I. Powell 2

Defense will likely refer the court to the State v. Powell alone. A review of Powell in

3 isolation is an insufficient summary of the current universe oflaw relevant to this issue. Cases

subsequent to Powell also indicate that there are various enumerated factors the court must look at 4

and weight when determining whether the State has proven that previous coercion has "dispelled".

5 The court must also review the preceding Vondehn, Jarnagin and subsequent Delong, Koch and

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Swan as they further defme when and under what circumstances a later statement or subsequent

evidence can be found to be so attenuated to a prior illegality so as not to warrant suppression.

The Court in State v. Powell held as follows:

"As that standard makes clear, confessions made subsequent to an improperly induced confession on the same subject are presumptively inadmissible under the statute. To overcome that presumption, the state must offer "clear evidence" sufficient to prove that, at the time of the subsequent confession, "the delusive hopes or fears, under the influence of which the original confession was obtained, were entirely dispelled." Id. When applying that standard to subsequent statements, a court by definition will already have determined that the initial inducements were sufficiently coercive to render a resulting confession unreliable and that the defendant made those statements as a result of those inducements. Thus, the only question that remains is whether those inducements continued to influence the defendant's motive to confess."

State v. Powell, 352 Ore. 210,227-228,282 P.3d 845, 855, (2012)

The court should note that in subsequent decisions following Powell, the Oregon Court of

Appeals has additionally held that other factors such as the length of time between the illegalities,

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and whether there are events dissipating the taint should be considered in making the overall

1 dissipation analysis. See State v. Belle4

2 As the State has already noted the facts of State v. Powell present a very different fact

pattern from this case. In State v. Powell, FedEx investigators implied to defendant that if he

3 confessed they would not refer his case for formal criminal prosecution. "Defendant likely believed

that if they refrained from pressing charges for thefts, no one else would do so. Further, by 4

promising that no one outside the room would know, the investigators indicated that defendant

5 would keep his job and that his wife would not !mow." Id at 212.

With no break in the interrogation the FedEx investigators then brought local law

6 enforcement, who read defendant his Miranda rights, but "advised him that she was doing so "just *

7 . * * as a matter of housekeeping, you know, just a formality." Defendant became "a little concerned"

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at that point The officer asked defendant if he lmew why she was there. Defendant responded,

"Probably to arrest me." The officer "kind oflaughed, and said, 'Well, I, you know, appreciate your

honesty.' She said, you know, 'Not necessarily."' Id at214-15.

4 To determine whether an inducement was entirely dispelled, we have looked at the length of intervening time

between the inducement and the confession, "'proper warning of the consequences of confession, or*** other

circumstances."' /d. (quoting Wintzingerode, 9 Ore. at 164). While Miranda warnings may be sufficient to dispel the

coercive effect in some instances, administration of Miranda warnings is not necessarily sufficient. Powell, 352

Ore. at 229 ... On this record, Miranda warnings alone were not sufficient to dispel the coercive effect of Fields'

11 pre-Miranda threat. First, only a short amount oftime passed between Fields' inducement and the post·

Miranda confession-after defendant was arrested and read his Miranda rights, he immediately was taken to the

police station where he made additional inculpatory statements .... Administering Miranda warnings to defendant

12 did not dispel the coercive effect of Fields' earlier threat because the warnings did not convey to defendant that

the threat no longer existed. Here, to dispel the coercive effect of Fields' pre-Miranda threats, Fields would have

had to tell defendant that he either was or was not going to report defendant's involvement in the crime to

13 defendant's commanding officer regardless of whether defendant chose to speak with Fields about the crime.

Here, no such assurance was made, and defendant's decision to speak with Fields was still influenced by the earlier

inducement. Accordingly, we conclude that the trial court erred when it admitted defendant's post-Miranda

. 14 statements. State v. Belle, 281 Ore. App. 208, 216, 383 P.3d 327, 332·333, (2016)

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Ultimately the court found that based on these facts defendant was still operating under the

belief that repetition his prior confession would continue to gamer him the implied benefit of no

criminal prosecution, and that the reading of Miranda was insufficient to dispel this taint. The Court

did note that "Miranda warnings may in some cases serve to dispel coercive influences and thus

increase the likelihood that a subsequent confession is actually voluntary," but that a remedial act

like administration of Miranda warnings has "significance only to the extent that they in fact had an

appreciable effect in dispelling the operation of the prior coercive influences on defendant's mind ..

5 .when the context or manner in which the officer gives the warnings downplays or minimizes their

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significance in defendant's mind, their effectiveness in serving as a causal break for the purpose of

the voluntariness inquiry may be correspondingly compromised." Id at 229

Of particular importance is that the questioning pre and post-Miranda was seamless in this

case and the FedEx investigators and law enforcement officers presented a unified front and

messaging of non-prosecution to defendant.

The facts of the subsequent case of State v. Belle, are highly similar. 281 Ore. App. 208,

216, 383 P.3d 327, 332-333, (2016). In Belle the court also held an implied threat delivered in a

pre-Miranda interrogation was not cured or attenuated to the render admissible a subsequent

Mirandized interrogation. These are simply not the facts of this case; these statements are not the

product of interrogation atall.

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II. Vondehn, Jarnagin and Delong

1 As stated above, the court must also review the Oregon cases of State v. Vondehn, State v.

2 Jarnagin, and State v. Delonr/ when evaluating whether the subsequent statements on the phone in

this case were still made under the coercive influences of the preceding illegality. These cases taken

3 together further define the factors the court should consider in determining whether the prior taint of

coercion has been dispelled. 4

In the first of these cases, State v. Vondehn, the court articulated a "derived from" analysis in

5 determining whether post-Miranda statements should be suppressed due to an earlier Miranda

violation. 348 Ore. 462, 464, 236 P.3d 691, 694, (2010). In determining whether a subsequent

6 statement was derived from the prior illegality or coercion the court made an examination of the

7 totality of the circumstances, focusing specifically on the duration of the pre-Miranda interrogation,

the temporal break in questioning, whether there was additional coercion, and most significantly on

8 the use police made of the earlier tainted statements during the subsequent post Miranda

interrogation. Id at 485-486. In this case the detectives were not even a party to the statements 9

made later on the phone to family, and thus absolutely no police use was made of the earlier tainted

10 statements.

This analysis was further explained in the later State v. Jarnagin, 351 Or App. 703 (2012).

11 In Jarnagin police engaged in lengthy compelling interrogation without reading defendant his

12 5 These cases all involve illegality in the form of a violation of a defendant's right to Miranda vs. actual coercion;

however both legal principles hinge on the same Art 1 Sect 12 violation. The court in Delong briefly touches on the

distinction to state "(distinguishing statements obtained in violation of a defendant's Article I, section 12, right to

13 Miranda warnings from statements obtained in violation of Article I, section 12, as a result of actual coercion).

Between those two points lies a range of circumstances that can affect whether subsequently discovered evidence

derives from the failure to give required Miranda warnings." State v. Delong, 357 Ore. 365, 383, 350 P.3d 433,

14 443, (2015)

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Miranda rights. The subsequent day police asked defendant to re-enact for a video the un-

1 Mirandized statements he'd given the day before. Defendant was then asked to undergo a

2 polygraph examination, and which point defendant was finally read his Miranda rights.

The court held that the proper analysis for determining whether the later post-Miranda

3 statements were admissible was not a "but for" analysis6, but instead that "the inquiry is a fact-

intensive one- whether, considering all the circumstances, a defendant's later decision to spealc to 4

officers is sufficiently a product of an earlier Miranda violation." I d.

5 The court then outlined the factors a court should review in its totality analysis stating that

"among other things, the court has considered the nature of the violation, the amount of time

6 between the violation and any later statements, whether the suspect remained in custody before

7 making any later statements, subsequent events that may have dissipated the taint of the earlier

violation, and the use that the state has made of the unwarned statements." See, e.g., Moore/Coen,

8 349 Ore. at 385 (focusing on the state's use of the unwarned statements in determining whether the

defendant's subsequent testimony was tainted); Mendacino, 288 Ore. at 237-38. Id. at 716-717. 9

In holding that subsequent post-Miranda statements to the polygrapher were properly

10 admissible, the court in Jarnagin found specifically important that "the central figure in the

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.polygraph examination, the polygrapher, was someone new, who was there in a different role from

the officers who had questioned defendant the day before and who had conducted the video

reenactment earlier that day." The court also noted that "the polygraph examination that

occasioned defendant's waiver of his Miranda rights presented "a markedly different experience"

6 The court specifically stated that the "Hall methodology applies to violations of Article I, section 9. It does not

apply to violations of Article I, section 12. Cf Brown v. Illinois, 422 US 590, 602-03, 95 5 Ct 2254, 45 LEd 2d 416

14 (1975). Jarnagin at 717.

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from the officers' questioning the day before and the video reenactment earlier that day." Cf Seibert,

542 US at 615 (plurality opinion) (explaining why the warnings in Elstad were effective). Id. at

723. Similarly, this case involves not simply a "new central figure in the examination", but

statements made to a trusted family member in no way involved in or associated with the prior

interrogation.

4 In State v. Delong the Court was faced with the related but distinct question as to whether a

defendant's non-responsive grant of consent to search his car was the product of prior unlawful un-

5 Mirandized interrogation, warranting suppression of all items found during the search. In Delong

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defense argued "that, because his invitation to search his car was the foreseeable result of the

deputy's unwarned questioning, the evidence that the deputies found in his car derived from that

Miranda violation and should be suppressed." State v. Delong, 357 Ore. 365, 370, 350 P.3d 433,

436, (2015). The court noted that "foreseeable result" is not the applicable test for analyzing the

taint of an earlier Art 1 Sect 12 violation.

The court held that the proper analysis for determining the voluntariness of consent after an

Art 1 Sect 12 violation is "whether, in the circumstances of a particular case, consent has so

10 attenuated the connection between the prior illegal conduct and the evidence obtained in the consent

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search-requires a court to consider the illegal conduct that comprised the stop or search, the

character of the consent, and the causal relationship between the two." State v. Delong, 357 Oi.

365, 378, 350 P.3d 433, 440 (2015).

The court in Delong held that where the unlawful interrogation had been brief, the consent

to search was unsolicited, and where "nothing that defendant said in the frrst part of his response to .

. . . [an] unwarned question impaired defendant's ability to make an independent decision to invite

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the deputies to search his car if they wanted to do so," that suppression was not warranted. Id at

380. The court ultimately found that the prior illegality had not "disabled defendant from malcing

independent decision." !d. at 384.

N. Koch and Swan

The final pairing of cases that spealc to this issue are State v. Koch and State v. Swan. Both

cases deal with the admissibility of urinalysis and breath tests obtained subsequent to an officer's

continued interrogation after a defendant's invocation of their right to counsel. In Koch the court

5 employed the totality test and examined the various factors outlined in Jarnagin. The court

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ultimately held that where the violation of defendant's Art 1 Sect 12 rights was a "flagrant".

violation, and where "the giving of the urinalysis was merely the final step of an integrated process

permeated by defendant's unlawfully elicited admissions," that "defendant's decision to give the

urine sample was so "sufficiently a product of [the] earlier Miranda violation[s]" as to compel

suppression. State v. Koch, 267 Ore. App. 322,334-335,341 P.3d 112, 119,2014

Conversely, in State v. Swan, the court similarly reviewed the factors outlined in Jarnagin to

determine whether the consent to a breath test post illegal interrogation "derived from or [was] the

10 product of an Article 1 Section 12 violation." State v. Swan, 276 Or. App. 192, 202, 366 P.3d 802,

808 (2016). In evaluating the various factors, the court found there were "subsequent events that

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may have dissipated the taint of the earlier violation," that the police had made no use of the

defendant's earlier suppressed statements in obtaining the subsequent evidence, and that considering

all the circumstances," a defendant's later decision-in this case, to talce a breath test-[ was not]

"sufficiently a product of" the Article I, section 12," warranting suppression. State v. Swan, 276 Or.

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App. 192, 206, 366 P.3d 802, 810 (2016).

ARGUMENT

As previously noted, the State anticipates that defense will focus solely on the language of

Powell. For two reasons Powell cannot be the only analysis employed by this court. 1) Cases

subsequent to Powell, including cases such as Belle, indicate that the analysis requires further court

evaluation of certain factors when making the overall analysis as to whether a previous coercion has

5 been dispelled; and 2) The fact pattern of this case is distinct from Powell. Tbis is not a case of

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unlawful interrogation followed by subsequent interrogation; this is a case of arguably unlawful

interrogation followed by the unsolicited production of statements not in response to interrogation.

For the reasons outlined above, the cases of Delong, Koch and Swan present fact patterns

bearing the greatest similarity to our own: Unlawful interrogation followed by an attenuated

unsolicited production of evidence by defendant.

The ultimate question in Delong was whether in producing the attenuated evidence not in

response to interrogation the defendant was "disabled ... from making independent decision."

10 Delong at384. Defendant's calls to family were not solicited by detectives. Defendant asked to

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make calls to his family long prior to his admissions during the interview. Similarly detectives did .

not script to Defendant what he should tell his family, and only made small statements in response

to Defendant's questions to them during the call between Defendant and his sister. The calls

themselves and the content of the conversation between Defendant and his sister was not the

product of the coercion as that term is defmed in the cases cited above. Similarly, in reviewing the

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actual content of the interview prior to the calls7, and the call itself, it cannot be said that Defendant

1 was "disabled from making independent decisions."

2 In applying the analysis set out in Jarnagin, and employed in Koch and Swan, the statements

to Defendant's sister are also admissible. Ibis court already commented that finding that there was

3 implicit coercion sufficient to warrant suppression in this case was a close call; the nature of the

violation here is not at the level noted in cases wherein the taint was held to remain attached to later 4

statements. This violation in this case is not one of overt threats or promises of non-prosecution, nor

5 is it continued interrogation in violation of a defendant's right to counsel or Miranda.

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There is little time passage between the conclusion of the interrogation and the subsequent

call to Defendant's sister, but the call itself can be viewed as evidence of attenuation8-evidence of

a shift away interrogation to housekeeping matters prior to booking. The call itself is also not

responsive to any questioning, and non-responsive, volunteered type statements have been held as

bearing a unique evidence of voluntariness. "Specifically, those courts have held that, to the extent

that a defendant's answer is not responsive to the officer's question, then the answer is a volunteered

7 The court will recall that at the end of the interrogation, shortly prior to the call to Defendant's sister, Defendant

made statements about not believing the detectives representations about DNA until he sees the evidence in trial.

At this same time (see bate stamped page 56,@ 9:49am on day two), detectives also asked Defendant if they

could tell the victim's families he acknowledges he's responsible for the deaths of Essie Jackson, Latanga Watts,

and Tonja Harding but just can't remember committing the acts, and Defendant replies 11 n01 no, no."

8 /(Even if we assume that defendant1S response to Robeson's question was not !!volunteered/' as the Court used

12 that term in Miranda, defendant's response still reflects a volitional act on his part and, as such, implicates another

strand of our case law. In considering a related issue, this court has held that similar offers are sufficient to

attenuate the taint of an Article I, section 9, violation. State v. Rodriguez, 317 Ore. 27, 854 P2d 399 (1993); State v.

13 Kennedy, 290 Ore. 493, 624 P2d 99 (1981). The point of those cases is not that the statement itself (the

defendant's offer) was admissible in the defendant's criminal trial. Rather, the point is that the offer was sufficient

to attenuate the taint of the preceding constitutional violation, making subsequently discovered evidence

14 admissible. State v. Delong, 357 Ore. 365, 376-377, 350 P.3d 433, 439, (2015)

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statement, as the Court used that term in Miranda, and admissible in the defendant's criminal trial.

State v. Delong, at 375.

Defendant was still in custody at the time the later statement to his sister was made, but as

noted, the interrogation had clearly concluded prior to the call. The cases cited above place great

significance on the idea that a taint remains when all police do is re-interrogate a suspect to have

him or her repeat earlier tainted statements. That is not the case here. Police made no use of the

prior tainted statements when Defendant spoke to his sister; they were not involved in the call at all

at the portion where he makes further incriminating statements to her.

Even if the court finds that the analysis of Powell alone should be considered in this case,

Defendant's statements to his sister should still be admitted. Powell ultimately states that the

'"fundamental question" in determining the admissibility of a confession is not to whom the

confession is made, but "whether the confession is the product of the free exercise of the confessor's

will.'" at 222. Defendant specifically asked to, and was granted a call to his sister. No one directed

what to say, nor was he the subject of questioning during this call. He was keenly aware to whom

he was speaking, and ostensibly aware she can offer him no benefits or detriments relative to his

10 criminal case.

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At the time Defendant made these statements to his sister he had also been specifically

informed that he was being charged with multiple counts of murder, and that the interrogation was

at its conclusion. There is simply noway Defendant's self-requested call to his sister, and the

unsolicited statements he then niade to her were not the product of free will; or out another way,

were the product of "delusive hopes or fears" that making these statements would effectuate any

different or better outcome. !d. at 227.

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Hi-lighting the fact that the statements in this call were free from any taint, are the multiple

1 efforts Defendant's sister makes (see bate stamped pages 1228-1229) to clarifY with Defendant that

2 he's been coerced or doesn't lmowwhat he's saying, followed by Defendant's repeated confessions

and statements of guilt. Defendant's sister states "Homer, has someone made you say this,"

3 followed by Defendant's "no"; "I mean how can you say yes to something if you don't have an

attorney?" to which Defendant replies "because I did it." 4

Taken as a whole, and in consideration of the various factors that must be weighed by the

5 court in this analysis, this court should find the subsequent statements made by Defendant to his

sister are sufficiently attenuated. These statements are attenuated and free of taint for several

6 reasons, the most important of which is that they exist outside the interrogation itself, were made to

7 a trusted family member in no way involved in the interrogation, and were not responsive to

continued interrogation.

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Respectfully Submitted, 9

ROD UNDERHILL District Attorney, Multnomah County

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11 By __ ~--------JennaPlank Deputy District Attorney, OSB# 053529

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Certificate of Service I True Copy

I, Jenna Plank, hereby certifY that I served a true copy of the State's Memoranda of Law Regarding the Admissibility of Statements to Defendant's Family Post-Interrogation in State v. Jackson, on counsel for the defendant; to wit:

Circuit Court Clerk I 06 Multnomah County Courthouse 1021 SWFourthAvenue Portland, Oregon 97204

Conor Huseby & Dean Smith (via email) Metro Public Defender Inc 630 SW 5th Ave Ste 500

5 Portland OR 97204 conor_huseby@fd.org & dsmith@mpdlaw.com

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by delivering via email, to their offices, on October 6th , 2017

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9(~~ 8

-------,-JennaPlank, OSB 053529 Deputy District Attorney

9 Dated this 6th day of October, 2017

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