Friday, August 7, 2009
Supreme Court Clarifies Voluntariness Standard for Recantations
By SHERRI M. OKAMOTO, Staff Writer
A Kern County man who was sentenced to death for the murders of his former neighbor and her 10-year old son yesterday lost his appeal to the California Supreme Court challenging the admission of his confession and subsequent recantation.
In a unanimous decision the high court clarified that the degree of attenuation that would dissipate the taint of a coerced confession and a later voluntary admission of guilt also applies to a subsequent recantation for purposes of determining the voluntariness of the later statement.
Writing for the Supreme Court, Justice Marvin R. Baxter said that Kern Superior Court Judge Clarence Westra Jr. did not err in finding Richard McWhorter’s taped statement retracting the confession he had made eight days prior was fully admissible on the basis that it was sufficiently attenuated from the portion of his initial statement that was found involuntary.
McWhorter was arrested for the murders of Shirley Jordan and her 10-year old son, Joey, whose badly decomposing bodies were found murdered in their Bakersfield apartment in September 1995.
Friends and Neighbors
At trial, the prosecution’s evidence established that McWhorter and his wife were friends and neighbors of the Jordans and had moved to Las Vegas in search of work one week before the murders. McWhorter then returned alone to Bakersfield on Sept. 11, went to the Jordans’ apartment, killed mother and son, stole $3,000 from a bedroom dresser drawer, then returned to Las Vegas that same evening.
He was arrested in October and taken to a Las Vegas police station, where he waived his Miranda rights and agreed to give a tape-recorded statement to Kern County Homicide Detective Rosemary Wahl and Sergeant Glenn Johnson. His wife was also brought to the police station for questioning.
During the interview with McWhorter, the officers confronted him with various lies he had told and suggested that his wife could be implicated in the murders as an accessory after the fact.
McWhorter eventually admitted to killing the Jordans, and then asked: “Now will you let my wife go please?” Jordan responded that he would still have to talk to McWhorter’s wife and continued to press McWhorter for more details.
Jordan then told McWhorter: “You have my word as a man to man that [your wife] goes if you give me enough details about the homicides….”
Eight days later, Kern County Sheriff’s Detective John Soliz went to Las Vegas to re-interview McWhorter and McWhorter recanted much of his earlier statement, asserting that he made up the version of events he told the detectives “to keep my wife from going to jail.”
McWhorter filed a pretrial motion to exclude his confession and subsequent recantation on grounds they were coerced, involuntary, unreliable and untrue.
In ruling on the motion, Westra found that McWhorter’s statement was voluntary, but only up until the point that Johnson promised to release McWhorter’s wife.
“[T]here was a promise of benefit made at that point and that the promise of benefit was so clear and specific that statements made by the defendant thereafter are involuntarily obtained,” Westra said.
But Westra determined the taint of the coerced portions of the confession had been removed by the time of Soliz’s interview with McWhorter over a week later.
Based upon an independent review of the totality of the circumstances surrounding McWhorter’s initial confession, Baxter agreed that the portion of the statement up until Johnson made his express offer to let McWhorter’s wife go in exchange for additional details about the crimes was freely and voluntarily given.
As for the second statement, Baxter cited case law regarding coerced confessions holding that a subsequent confession is not the tainted product of the first if it is sufficiently attenuated and reasoned the same principles of attenuation would apply to a recantation as well.
Noting that McWhorter had been properly Mirandized at the start of the second interview, over a week had transpired between interviews, Soliz had not had any prior contact with McWhorter, and Soliz had neither reviewed the tape of the first interview nor exploited any information obtained in McWhorter’s prior statement, Baxter concluded that the recantation was not tainted by the illegality of the coerced portion of McWhorter’s confession and was properly admitted into evidence.
The case is People v. McWhorter, 09 S.O.S. 4756.
Copyright 2009, Metropolitan News Company