Posted Nov. 20, 2003

Judge tosses Cleaver statements

Rules police ‘intentionally’ didn’t read rights

By Alex Hummel
of The Northwestern

The case against an 18-year-old Oshkosh woman charged with drowning her newborn and hiding the body may be unraveling.

A Winnebago County judge on Wednesday threw out two key statements Kristen Cleaver made to police after the discovery in April of the child’s body.

An appeal of the decision and delay of a Jan. 26 trial are inevitable as prosecutors determine what evidence they can salvage.

Circuit Court Judge William Carver ruled an Oshkosh Police Department detective intentionally did not read Cleaver her Miranda rights before obtaining a statement from her on April 26, shortly after the baby’s body was discovered.

Cleaver was charged with homicide and hiding a corpse in May. Her parents found a dead baby wrapped in a plastic bag in her closet, according to the criminal complaint.

On Wednesday, Carver suppressed Cleaver’s first statement to Police Detective James Busha — including her description of giving birth to the baby in a bathtub and letting it drown.

He also suppressed a second statement, given two days later because it was based on Cleaver’s earlier statement.

Calumet County District Attorney Kenneth Kratz, the special prosecutor in the case, said he will appeal.

Carver’s decision, Kratz said, reverses case law that has established the admissibility of statements made in follow-up interviews by defendants who were not initially informed of their rights.

He said the state attorney general’s office may take charge of the appeal given its ramifications.

Should the appeal fail, the defense may seek dismissal, Cleaver’s lawyer, Michele Tjader, said.

During a hearing in October, Cleaver testified she believed she would not be able to leave the police department on April 26 unless she signed a statement. Busha refuted Cleaver’s testimony, testifying that she understood she did not have to speak with police.

Busha asked his partner, Det. Steve Schauz, to pick up Cleaver from work after the discovery of the dead baby. Cleaver was kept in a squad car outside her home before being taken back to the Oshkosh Police Department for more questions — but not before Busha stopped to get her a soda at a fast food restaurant.

Tjader sent legal dominoes tumbling Wednesday arguing the lack of Miranda, the police escort from work and subsequent interrogation left Cleaver no reason to believe she could avoid questions or even leave detectives’ sight.

Tjader argued the stop for a Coke was intended to mask that she was in police custody, shirk Miranda and ease her into coercive interviews.

“Stopping for a Coke is hardly convincing that she wasn’t in custody,” Carver said.

“That’s not a situation where somebody thinks, ‘Hey, I’m free to go,’” Tjader argued.

Carver suppressed the second statement, given April 28 because, he reasoned, it was based on the first questioning.

Carver also questioned why Busha was not removed from the investigation after he told supervisors he was related to two men who were subsequently convicted of having sex with Cleaver when she was a minor. One of the men is suspected of fathering Cleaver’s child.

Carver questioned whether the decision to allow Busha to continue interrogating Cleaver was approved by “supervisors who thought they could get a quick and fast statement.”

Admitting he lacked facts, Carver theorized it is possible the detectives realized their Miranda miscue and went back to interview Cleaver again, this time informing her of her rights.

“Right back with the same officers,” Carver said. “Same officers with the initial statement. Same officers that probably should have recused themselves.”

Kratz argued case law dictates the time between the interviews buffered the second interview from the first’s “taint.”

He contended the officers had autopsy results on the baby’s body and questions about a bruise.

“It’s a question – ‘Why did the officers attempt to go back?’” Carver asked, while inviting a prosecution appeal of his ruling.

Asked whether Cleaver may seek a plea bargain, Tjader said “at this point, no.”

Alex Hummel: (920) 426-6669 or ahummel@thenorthwestern.com.

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