Interrogations-and-Confessions-Handbook

The American Law on Confessions 291
a larger perspective, recognizing that what is not coercive for the general population
may well be coercive for a mentally disabled person. For example, one
court found that when a suspect exhibited ‘a continuing pattern of mental
instability’,
an interrogation that would not be coercive to a mentally stable person could be
found coercive with regard to him. 27
In another post-Connelly case, a court found a mentally retarded suspect’s confession
involuntary when methods used by the police were shown to be a ‘type
of subtle coercion that can have an extraordinary effect on one of low mental
capabilities’. 28
Finally, although Connolly commented that a court should not be required
to conduct ‘sweeping inquiries into the state of mind of a criminal defendant
who has confessed’, the decision itself makes clear that a suspect’s mental limitations
are relevant when the police have reason to be aware of them and can
be shown to have exploited them in obtaining a confession or a waiver of his
Miranda rights. 29
The trial court’s opinion in United States v. Zerbo 30 illustrates an unusually
nuanced application of the totality of the circumstances test, concluding that
police questioning of a 53-year-old mentally disabled man was ‘unconstitutionally
coercive in the light of his disabilities’.
Anthony Zerbo had been continuously treated for schizophrenia, polysubstance
abuse and heart failure for several years as an outpatient in a government
veteran’s hospital where he also worked as a volunteer. Law enforcement
agents from the hospital went to his sister’s home, where Zerbo lived, wanting
to question him about an alleged act of sodomy with a resident patient. The
agents questioned Zerbo for an hour and a half without permitting his sister
to be present and without giving Miranda warnings or telling him that he was
being investigated for a crime. Indeed, they assured Zerbo and his sister that
they were only there to ‘help’. When Zerbo’s sister asked if he was in trouble,
the officer assured her that they were only looking for information.
Two days later, seven officers descended on the house as the family was
sitting down to dinner and arrested Zerbo. Zerbo’s sister gave his medication
to the supervisor, telling him that Zerbo ‘was a sick boy’ and needed to take
it several times a day. The officers put Zerbo in a holding cell for about 25
minutes and brought him out to be interviewed at about 9 p.m. They read
him his Miranda rights and he signed a waiver form. He was questioned until
10.30 p.m. and not given any food or his medication. Zerbo had not eaten for
about ten hours.
At the suppression hearing, the court heard testimony from Zerbo, his sister
and the arresting officers. The court also considered three psychiatric reports,
submitted on behalf of the prosecution, the defence and in response to a court
27 Smith v. Duckworth, 910 F.2d 1492, 1497 (7th Cir. 1990).
28 Commonwealth of the Northern Mariana Islands v. Mendiola, 976 F.2d 475, 485 (9th Cir. 1992).
29 Connelly v. Colorado, 479 US at 165–167.
30 United States v. Zerbo, 1999 WL 804129 (S.D.N.Y. 1999).