In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 07-1243

STANLEY A. SAMUEL,

Petitioner-Appellant,

v.

MATTHEW J. FRANK,

Respondent-Appellee.

____________

Appeal from the United States District Court

for the Eastern District of Wisconsin.

03-C-1279—Lynn Adelman, Judge.

____________

ARGUED SEPTEMBER 5, 2007—DECIDED MAY 12, 2008

____________

Before POSNER, RIPPLE, and ROVNER, Circuit Judges.

POSNER, Circuit Judge. Stanley Samuel was convicted by

a jury in a Wisconsin state court of second-degree sexual

assault of a child, interference with child custody, and

abduction, Wis. Stat. §§ 948.02(2), 948.31(2), 948.30, and

was sentenced to 38 years in prison to be followed by

16 years on probation. After exhausting his state remedies, see State v. Samuel, 643 N.W.2d 423 (Wis. 2002), he

petitioned for federal habeas corpus relief, lost, and

appeals.

In 1996, the defendant, who was 47 years old, ran off

with a 15-year-old girl named Tisha. Their spree began in
2 No. 07-1243

Wisconsin, but they soon left the state and were not

picked up until 13 months later, in Missouri, by which

time Tisha was nine months pregnant. An issue critical to

the charge of sexual assault was whether the pair had

had sex in Wisconsin before they left the state (for otherwise the defendant would not have violated Wisconsin’s

sexual-assault statute). While Tisha denied this at the

trial, statements that she had made under police questioning when the couple were returned to Wisconsin after

the spree, admitting that she and the defendant had had

sex in Wisconsin, were introduced over objection at his

trial.

The defendant claims that Tisha’s statements had been

coerced and therefore that their use in evidence against

him violated his federal constitutional rights. The district

court disagreed, ruling that the state courts’ adjudication

of his claims had not been “contrary to . . . clearly established Federal law, as determined by the Supreme Court

of the United States,” 28 U.S.C. § 2254(d)(1), or “based on

an unreasonable determination of the facts in light of

the evidence presented in the State court proceeding.”

§ 2254(d)(2). And so it denied relief.

Tisha had given birth the day after her return to Wisconsin. Two days later social workers and officers of the

Wisconsin juvenile court convened a conference to decide about the custody of the baby. Police officers attended

the conference along with Tisha, her lawyer, her father,

and her father’s girlfriend. Tisha was questioned extensively. At the end of the conference it was decided to

place the infant in foster care temporarily and to hold

another placement conference in two days. Tisha was

permitted to spend time with and breast feed the baby in

the foster home.
No. 07-1243 3

On the day between the two conferences, she was

interviewed at the police station by two officers and it

was then that she gave the statements introduced at trial.

The day after the second conference she was given

custody of the baby.

At a pretrial suppression hearing, Tisha testified that at

the first conference she had been told that if she didn’t

cooperate she wouldn’t get her baby back, and that

she understood this to mean that she had to give statements to the police. Her father testified that at that conference the police officers had gotten angry with Tisha

because she refused to tell them where she’d been with

the defendant or give them the addresses of the people

they had stayed with. Her lawyer testified that the impression created at the conference was that unless Tisha

gave a full statement concerning the defendant’s conduct, she would not get the baby back.

The question whether the statements had been coerced

resurfaced at the defendant’s trial. Tisha’s father testified

that when the child welfare officers gave his daughter

custody of the baby they said it was because she’d exhibited proper maternal behavior during her visits to the

baby at the foster home. The police officers who had

questioned her denied any involvement in the initial

decision to place the baby in foster care.

We can assume without having to decide that had Tisha

been a defendant her statements could not have been

admitted against her. The officers may have created the

impression that unless she cooperated in their investigation of the defendant they would make sure she did not

get her baby back. A failure to cooperate with police could

be a proper reason for doubting a runaway teenage

single mother’s competence to be given custody of her
4 No. 07-1243

child, and there was more: Tisha had not sought prenatal

care or given other signs of taking the responsibilities

of motherhood seriously. Had the child-welfare authorities believed that her failure to answer questions about

her pregnancy during her months on the run counted

against giving her custody of her baby, they could tell

her that, even though by telling her they would be

forcing her to choose between losing the baby and incriminating the father. She would need that information—

information about the consequences of refusing to

cooperate—in order to make an informed decision

about whether to cooperate.

That would be a different conversation from police

threatening her with denial of custody of the baby because she refused to incriminate the father. An incriminating statement induced by that kind of police threat

would be inadmissible, at least if sought to be placed in

evidence at the trial of the person who had made the

statement and been incriminated by it. Lynumn v. Illinois,

372 U.S. 528, 534-35 (1963); United States v. Tingle, 658

F.2d 1332, 1336-37 (9th Cir. 1981); cf. Vaughn v. Ruoff,

253 F.3d 1124, 1128-29 (7th Cir. 2001). It would be like

threatening a person with torture if he refused to ‘fess up.

The problem (or one problem) with allowing such

threats is that, to be credible, they would sometimes have

to be carried out, and torture and taking away a person’s

child are not considered proper methods of obtaining

evidence against criminals.

Some courts hold that placing in evidence a coerced

statement of a witness in a criminal case who is not a

defendant or a potential defendant nevertheless violates a

constitutional right of the defendant, though obviously

not his right not to be forced to incriminate himself. E.g.,
No. 07-1243 5

United States v. Gonzales, 164 F.3d 1285, 1289 n. 1 (10th Cir.

1999); LaFrance v. Bohlinger, 499 F.2d 29, 35-36 (1st Cir.

1974). Other courts, including Wisconsin, exclude such a

statement only if it is unreliable, which requires that a

higher level of coercion be shown. E.g., State v. Samuel,

supra, 643 N.W.2d at 431-32; United States v. Merkt, 764

F.2d 266, 273-75 (5th Cir. 1985). Still other courts,

including ours, Buckley v. Fitzsimmons, 20 F.3d 789, 794-95

(7th Cir. 1994), do not think that there is an exclusionary

rule, as such, applicable to third-party statements, though

they would reverse a conviction if it rested entirely on a

coerced statement that was completely unreliable, just

as they would reverse any conviction that rested entirely

on completely unreliable evidence. State v. Vargas, 420

A.2d 809, 814 (R.I. 1980); People v. Badgett, 895 P.2d 877, 883-

88 (Cal. 1995). For in such a case no reasonable judge or

jury could find that the defendant’s guilt had been proved

beyond a reasonable doubt, and hence the conviction

would have deprived him of liberty without due process of

law. Jackson v. Virginia, 443 U.S. 307, 317-18 (1979).

The Supreme Court has not decided whether the admission of a coerced third-party statement is unconstitutional, and this may seem to doom the petitioner’s case.

But section 2254(d)(1) does not say that there can be no

relief unless the state court’s decision was contrary to a

clearly established holding of the Supreme Court. The

decision need only be contrary to federal law as clearly

established by the Court. “Law” is not limited to the

narrowest rule stated in a case that is consistent with the

facts of the case, which is one sense of “holding”; it embraces legal principles, Bell v. Cone, 535 U.S. 685, 694 (2002);

Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003); Anderson v.

Cowan, 227 F.3d 893, 896 (7th Cir. 2000), though they
6 No. 07-1243

must be legal principles derived from the holdings in

Supreme Court opinions. Carey v. Musladin, 127 S. Ct. 649,

653 (2006).

Sadly, legal principles often come in nested form, like

a series of Russian dolls. It is a legal principle that a defendant is not to be deprived of his liberty without due

process of law, but it is also a legal principle that due

process of law is violated by admitting the defendant’s

coerced confession into evidence at a criminal trial. At

the level of generality of our first example, Congress’s

effort in section 2254(d)(1) to prevent federal courts

from using their habeas corpus jurisdiction, in cases

brought by state prisoners, to venture beyond the limits

of clearly established federal law as determined by

the Supreme Court would be thwarted. But we have also

been told that a state court opens itself to challenge in a

habeas corpus proceeding if it “unreasonably refuses to

extend [a clearly established] principle to a new context where it should apply.” Williams v. Taylor, 529 U.S.

367, 407 (2000); Malinowski v. Smith, 509 F.3d 328, 335 (7th

Cir. 2007).

This formula would be clearer if the Court had said

“apply” rather than “extend,” for then it would be

clear that the Court was merely making our earlier

point that “clearly established Federal law, as determined by the Supreme Court,” is not limited to the holding of a case. A principle sweeps more broadly than a

holding, but to extend a principle sounds like creating

new law. But this is to be too fussy about words; the

Court itself has used “application” and “extension”

interchangeably in the present context. Williams v. Taylor,

supra, 529 U.S. at 407-08.
No. 07-1243 7

There is, however, no rule or principle that evidence

obtained by improper means may not be used in a legal

proceeding. It has often seemed better to let the evidence in

but punish the officer who used those means to obtain it,

an increasingly feasible option of the having-your-cakeand-eating-it type now that there are effective tort remedies, especially federal tort remedies, against official

misconduct. The emergence of those remedies may be one

of the reasons that exclusionary rules have fallen out of

favor—as they have; we find today’s Supreme Court

saying that “suppression of evidence . . . has always been

our last resort, not our first impulse,” Hudson v. Michigan,

547 U.S. 586, 591 (2006), and refusing to extend the

existing exclusionary rules. See, e.g., Pennsylvania Board

of Probation & Parole v. Scott, 524 U.S. 357, 362-65 (1998);

Colorado v. Connelly, 479 U.S. 157, 166-67 (1986).

Tort remedies are fully effective when the victim of

coercion is a witness who is not himself (in this case

herself) a defendant, or a criminal of any type. A criminal

is not a very appealing tort plaintiff, but Tisha is not a

criminal. She is not accused of being the defendant’s

accomplice rather than his victim. She was only 15

when she ran away with him, and he was 32 years her

senior.

Historically, moreover, the concern with coerced statements is a concern with confessions or other self-incriminating statements, e.g., Doe v. United States, 487 U.S. 201,

211-14 (1988), rather than with the coercion itself. That

is why the rule excluding coerced confessions has been

ascribed to the self-incrimination clause of the Fifth

Amendment rather than to some broader constitutional

right against coercion, on which the defendant in this

case, not being the author of the allegedly coerced statements, must rely.
8 No. 07-1243

Still another reason to distinguish a witness’s coerced

testimony from a defendant’s is that confessions tend to

be devastating evidence in a jury trial because jurors find

it difficult to imagine someone confessing to a crime if

he is not guilty, unless the pressures exerted on him to

confess were overwhelming. Tisha was not incriminating

herself when she incriminated the defendant, so there

was no reason for the jury to give her statements more

weight than they merited.

The fact that the case for exclusion is so much weaker

in the present case than in the case of a defendant’s coerced confession is a further clue that exclusion would

require the creation of new law rather than the application of an existing principle. Against all this the defendant

contends that the root objection to coerced evidence is

that it is unreliable, and it is unreliable whether it is a

witness’s evidence or a defendant’s. Not all evidence

routinely allowed in trials is particularly reliable, however, even eyewitness evidence (see, e.g., Christian A.

Meissner & John C. Brigham, “Thirty Years of Investigating

the Own-Race Bias in Memory for Faces: A Meta-Analytic

Review,” 7 Psychology, Pub. Pol’y & L. 3 (2001), and references in United States v. Williams, No. 06-3260, 2008 WL

17011843, at *2 (7th Cir. Apr. 14, 2008), though the naïve

consider it the gold standard of evidence. Moreover, the

reliability of a single item of evidence often depends

on other evidence, rather than being assessable in isolation. This is true of coerced statements. Not all are unreliable; their reliability may be established by corroboration, as when a coerced statement reveals a fact, say the

location of the murder victim’s body, Colorado v. Connelly,

supra, 479 U.S. at 160-63; Brewer v. Williams, 430 U.S. 387

(1977); see also New York v. Quarles, 467 U.S. 649 (1984);
No. 07-1243 9

Orozco v. Texas, 394 U.S. 324, 324-27 (1969), that only

the murderer could have known. It is not a surprise

when, forced to speak, a person speaks the truth. Tisha’s

statements that implicated the defendant were corroborated by other witnesses (who testified to admissions

she had made to them concerning her sexual activities

with him), were plausible, and, given her continued

loyalty to the defendant, perhaps unlikely to have been

made, even under the pressure exerted on her, had they

been false.

Whether the Wisconsin Supreme Court was right or

wrong to refuse to extend the bar against the use of a

defendant’s coerced statement to that of a nondefendant

witness, the court was not unreasonable in refusing to do

so; and reasonableness is the test.

That court did not, however, hold that such a statement is always admissible—a ruling that would be an

unreasonable application of settled law if, for example,

because the conviction had been based wholly on unreliable third-party evidence, no reasonable jury or judge

could have voted for such a conviction. Jackson v. Virginia,

supra. The court held only that “the standards are different and that when a defendant seeks to suppress an

allegedly involuntary witness statement, the coercive

police misconduct at issue must be egregious such that

it produces statements that are unreliable as a matter of

law.” 643 N.W.2d at 426. So if the court was unreasonable in determining that the facts did not establish such

“egregious” police misconduct, the petitioner is entitled to

relief under 28 U.S.C. § 2254(d)(2) (state court’s decision

“based on an unreasonable determination of the facts in

light of the evidence presented in the State court proceeding”), as in Miller-El v. Dretke, 545 U.S. 231, 264-66
10 No. 07-1243

(2005), or Taylor v. Maddox, 366 F.3d 992, 999-1001 (9th

Cir. 2004).

The authorities responsible for the welfare of Tisha’s

baby had a legitimate concern with her failure to cooperate with the criminal investigation of the defendant. They

were entitled to express that concern to her, so that she

could make an informed decision whether to cooperate,

knowing that her failure to do so would be weighed in

the balance that would determine whether she would

obtain custody of the child. Inevitably that concern and

the expression of it nudged her toward cooperation and

hence to making the statements that incriminated the

defendant. The threat of losing her baby was in the background, but it emanated primarily from the circumstances of Tisha’s weeks on the run while pregnant,

rather than from police misconduct. Or so the state courts

could conclude without being thought unreasonable.

Cf. Johnson v. Trigg, 28 F.3d 639 (7th Cir. 1994).

AFFIRMED.

ROVNER, Circuit Judge, concurring. Before I turn to my

point of dissension, I must begin with the many ways

in which I am in almost complete agreement with the

majority. The majority concludes that the state court of

Wisconsin need not treat coerced statements of nondefendant witnesses the same way as coerced statements

of defendants. Although the latter must be suppressed,

the former need not. With this premise I agree. I also agree
No. 07-1243 11

with the majority’s reasoning as to why this is so. As the

majority correctly concludes, coerced statements by nondefendant witnesses do not implicate a defendant’s

Fifth Amendment right against self-incrimination. The

only threat they pose to due process stems from their

inherent unreliability. If, for example, (again, as the

majority points out) a conviction rests entirely on a

coerced witness statement that is unreliable, such a conviction would deprive a defendant of due process of

law, “[f]or in such a case no reasonable judge or jury

could find that the defendant’s guilt had been proved

beyond a reasonable doubt.” Ante at 5 (citations omitted).

If the state court gains evidence from a non-defendant

witness in a manner that violates her rights, the

majority states, and I concur, that the remedy is not to

suppress that evidence, but for the aggrieved witness to

be made whole (to the extent the law is capable) by filing

a civil claim against the wrongdoers. Thus far I have

merely recited what the majority has said, far more eloquently than I. Nevertheless, in order to understand

where we differ, I must begin with where we agree.

In short, both the majority and I agree that our concern,

as a federal court reviewing a petition for habeas corpus,

is with due process rights of the defendant. More specifically, where a defendant complains about the admission

of a coerced statement from someone other than himself, our focus must be on the reliability of that statement and the state court’s assessment of that reliability.

See 28 U.S.C. § 2254(d)(1). Any state rules or standards

that the state court may have applied in evaluating

the admissibility of the statement are irrelevant to our

analysis. Kubat v. Thieret, 867 F.2d 351, 358 (7th Cir. 1989)

(“[o]n habeas review our role is not to mandate optimal
12 No. 07-1243

procedures to the state courts. Rather, our role is to protect against constitutional error.”). Our concern is with

the bottom line—the reliability of the witness’ statement—and whether that bottom line reflects a reasonable application of United States Supreme Court precedent.

See 28 U.S.C. § 2254(d)(1).

The first (and, as I will argue shortly, the only) determination we must make, therefore, is whether Tisha’s

coerced statement was so unreliable as to deprive Stanley

Samuel due process of law. There were plenty of reasons

one could think that Tisha’s statement was unreliable.

The most obvious of which is that a mother threatened

with the loss of her newborn infant is likely to say anything to keep her child. And there are others as well. The

majority opinion makes short shrift of some of the more

unseemly facts surrounding Tisha’s statement, but those

facts are as follows: forty hours after having given

birth, (and about three days after being reunited with

her father after thirteen months on the run with a fortyseven-year-old pedophile) sixteen-year-old Tisha was

summoned to a meeting at the office of the corporation

counsel to determine whether she could keep her baby

in her custody. At that meeting Tisha was surrounded

by eight adults—a police officer, several attorneys, many

members of the Wisconsin Department of Health and

Family Services or the county equivalents (together,

“social services”) and her parents. She was exhausted

from a difficult delivery, she was medicated, she was

frightened and undoubtedly disoriented from her reentry into her community after thirteen months on the

run with a criminal. Tisha testified that she was told that

she would have to co-operate and tell the police officers

about her sexual activity with Samuel if she wanted to
No. 07-1243 13

keep her baby. (9-18-97 Tr. at 13, 15, 18, 27-28, 31-32) (12-2-

97 Tr. at 159-162) (12-3-97 Tr. at 202-206, 209). Her

father, Peter, testified that he was given the same impression and that social workers specifically told him

the types of information that Tisha needed to provide. (9-

18-87 Tr. at 37-39, 40-41, 43) (12-1-97 Tr. at 195-97) (12-3-97

Tr. at 144-147). Significantly, Tisha’s attorney also testified that it was his impression that Tisha had to give a

statement to the investigating police officer before she

could get her baby back. (9-18-97 Tr. at 47). Even the

state’s main witness, social worker Rodney Schraufnagel,

testified that during the hearing and conference to determine where the baby would go, Tisha was told numerous

times that in order to make a determination about the

baby’s placement, the social workers would “need her

cooperation,” including disclosing information about

what she had done during her time with Samuel. (12-3-97

Tr. at 76-77, 111, 115-116). Officer Sagmeister, the police

officer in charge of the investigation into Samuel’s illegal

behavior, agreed that at the hearing to determine the

baby’s placement, Tisha had been told that she would

have to cooperate. (12-3-97 Tr. at 55). When Tisha refused

to cooperate and turn in the father of her child, her baby

was taken away. Then, less than twenty-four hours after

yielding to the state’s pressure and telling the police

exactly what they needed to prosecute Samuel, the baby

was back in her arms.

Despite these unseemly facts, the state presented an

overwhelming amount of corroborating evidence that

supported the version of events that Tisha reported in

her post-partum meetings with social services and the

police thus demonstrating the reliability of the statements. In any event, the jury was free to weigh the evi-
14 No. 07-1243

dence of unreliability of the statement (there was plenty

of it, as described above, and the defense had ample

opportunity to put all of it into evidence) against the

weight of the other evidence. In short, we cannot conclude that Tisha’s coerced statement was so inherently

unreliable as to deny Samuel due process.

I part company with the majority when the opinion

comments on the legitimacy of the state’s actions in

removing Tisha’s baby from her physical custody. My

colleagues opine that the state court could reasonably

conclude that the Wisconsin state authorities had a legitimate concern for the welfare of the infant—a concern fueled, primarily, by Tisha’s failure to cooperate

with the criminal investigation of Samuel. The majority

enters this arena, ostensibly, in its effort to determine

whether the state court decision was based on an unreasonable determination of the facts in the light of the

evidence presented in the state court proceedings. Ante

at 9; see also 28 U.S.C. 2254(d)(2). In Samuel’s state court

proceedings, the Wisconsin Supreme Court concluded

that in order to suppress an alleged involuntary statement by a non-defendant witness, “the coercive police

misconduct at issue must be egregious such that it produces statements that are unreliable as a matter of law.”

State v. Samuel, 643 N.W.2d 423, 426 (Wis. 2002). The

majority then proceeds to determine whether the state

court reasonably could have found the facts surrounding

Tisha’s statement to be “not egregious.”

Wisconsin may require that the coercion be so egregious as to be unreliable, but in this way Wisconsin has

engrafted an extraneous factor onto the due process

analysis. As both the majority and I have explained, the

only inquiry we must make for federal due process pur-
No. 07-1243 15

poses is whether the statement was so unreliable as to

deprive Samuel due process of law. The egregiousness

of the coercion of the non-defendant witness (although

worthy of our comment as human beings), is of no

moment to a federal court reviewing the criminal defendant’s due process claim. In cases where the Wisconsin

court thinks that the state actors behaved egregiously, it

might exclude a statement based on that egregiousness

when that statement is in fact reliable. Conversely, it

might allow the admission of statements that are not the

product of egregious coercion but that are nonetheless

completely unreliable. Because egregiousness is an extraneous factor not necessarily determinative of reliability, it is

beyond our power to review. “Errors of state law in and

of themselves are not cognizable on habeas review. The

remedial power of a federal habeas court is limited to

violations of the petitioner’s federal rights, so only if a

state court’s errors have deprived the petitioner of a

right under federal law can the federal court intervene.”

Perruquet v. Briley, 390 F.3d 505, 511-12 (7th Cir. 2004)

(internal citations omitted). The touchstone of due

process, for our purposes, is the reliability of Tisha’s

statement rather than the egregiousness of the state’s

actions. Consequently, the state’s actions, even if egregious, did not deprive Samuel of due process.

For these reasons, the majority’s exploration into the

legitimacy of the infant’s removal is unnecessary to our

limited review. Nonetheless, because I think reasonable

minds could differ, and because I am concerned that

we not place our imprimatur of approval on the state’s

actions, particularly when unnecessary, I am compelled

to follow the piper into the river.

When the state removes a child from the custody of its

parents, it is trampling on one of the most fundamental
16 No. 07-1243

1 Although this language comes from a statute describing

the considerations of judges in more complete fact-finding

hearings—as opposed to the more preliminary kind to which

it appears Tisha was subjected—due process requires a state

to have a narrowly tailored solution to any intrusion on the

right to parent.

and personal rights—the right to parent a child. It is a

drastic measure and made even more so when the state

removes a baby just days after birth, when mother-infant

bonds are forming, when milk production begins, and

when women are adjusting to a number of physical and

emotional changes and demands of motherhood. A

state may not turn to such a drastic remedy—even in

compelling circumstances—unless there is no other

more narrow method of protecting a child. Indeed, the

State of Wisconsin reflects this constitutional requirement

in its legislation which states that it will remove a child

from the custody of a parent “only where there is no less

drastic alternative.” Wis. Stat. § 48.355(1).1

The majority opinion indicates that the state authorities

had a legitimate concern with the baby’s welfare due to

Tisha’s failure to cooperate with the criminal investigation and her weeks on the run while pregnant. Indeed,

the principal social worker involved in the case indicated

that the primary reason for removing Tisha’s daughter

was that social services workers feared that Tisha would

abscond with the baby and seek refuge with the same

persons who had aided Samuel during their thirteen

months on the run. Removing Tisha’s baby seems to be

far from the “least drastic” measure possible, however.

Tisha’s father and live-in girlfriend had custody of Tisha

and indicated their willingness to monitor Tisha and the
No. 07-1243 17

baby closely, but there is no testimony in the record as to

why their competence was doubted. See e.g. Wis. Stat.

§ 48.355(1) (“If there is no less drastic alternative for a

child than transferring custody from the parent, the

judge shall consider transferring custody to a relative

whenever possible.”). Tisha and her child could have

been held together in a secure facility—perhaps in the

medical unit of a youth facility or in another facility

where female youth offenders who have just given birth

are held. Even adult criminal offenders in Wisconsin are

eligible to maintain physical custody of their very young

children in the Mother-Young child care program. Wis.

Stat. § 301.049. There are, of course, other possibilities,

and surely social services was familiar with many of them

in light of its obligation to preserve the family units

whenever possible in conformity with the legislative

purpose of the Children’s Code governing the Department

of Health and Family Services. See e.g. Wis. Stat. § 48.01(a).

The state had a few other toothless justifications for its

concern about the baby’s welfare, but these can be quickly

dismissed. Any concerns about STDs and HIV could

have easily been addressed by testing both Tisha and her

baby for STDs and HIV with Tisha’s informed consent.

(See 12-3-97 Tr. at 77). (In fact, since the CDC recommends

that all pregnant women receive an HIV test and that those

who have had no prenatal care be encouraged to have a

rapid HIV test when arriving at the hospital, it is likely

that Tisha was indeed tested. See http://www.cdc.gov/

mmwR/preview/mmwrhtml/rr5514a1.htm.) The state

also expressed some concern over Tisha’s lack of prenatal

care, but this is hardly a reason to take the drastic step

of removing a child from parental custody. In 1996

alone, 2,146 women in the state of Wisconsin gave birth to
18 No. 07-1243

babies who had received late or no prenatal care (3.2% of

all births statewide). See http://www.dhfs.state.wi.us/

WISH/index.htm. Furthermore, more than twenty-five

thousand births in Wisconsin in 1996 (37.5% of all births

statewide) were to women between the ages of fifteen and

nineteen. Id. Surely the state does not conduct hearings

to determine the appropriate placement for all babies

born to unmarried teenage mothers. Consequently, without much meaningful rationale for questioning Tisha’s

competency as a mother, it does indeed appear that

social services used the baby’s placement hearings as

pretext to garner information for Samuel’s criminal prosecution.

In short, rather than exploring any less drastic alternatives, the state authorities dangled the infant before Tisha.

Once Tisha gave the police all the information the state

needed to prosecute Samuel, the authorities returned

Tisha’s baby to her. Civilized governments do not take

babies away to coerce a victim’s testimony—even in the

name of protecting that victim and others.

The dissenting justice on the Wisconsin Supreme Court

stated,“[l]ower courts will ask, with some degree of

confusion, if these facts do not [constitute egregious

police misconduct], what does?” State v. Samuel, 643

N.W.2d 423, 436 (Wis. 2002). The majority of that court

believed otherwise. This is not, however, our battle to

enter. Whether the state’s behavior was egregious

or not, the use of Tisha’s statement did not violate the

defendant, Samuel’s, due process rights. The injury from

the state’s behavior was to Tisha and it was Tisha who

had the option of seeking a remedy.

USCA-02-C-0072—5-12-08