WI- Judge denies motion to toss out statements

8-26-2009 Wisconsin:

Schwab rules they were voluntary

Freeborn County District Court Judge Steve Schwab has denied the motions made by Brianna Broitzman’s lawyer that his client’s statements to authorities be thrown out in the case of alleged elder abuse at Good Samaritan Society of Albert Lea.

In a written order filed Aug. 12, Schwab states Broitzman’s statements were not the result of custodial interrogation and that they were voluntarily given.

He defined custodial interrogation as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.”

Broitzman, 20, faces 11 charges, ranging from fifth-degree assault, criminal abuse of a vulnerable adult, disorderly conduct and mandatory failure to report suspected abuse at the nursing home during the first part of 2008. Local authorities interviewed her about the allegations on May 6, 2008.

During Broitzman’s contested omnibus hearings in May and June, the young woman’s attorney, Larry Maus, questioned the constitutionality of his client’s statements to authorities.

Schwab said in this case, Broitzman came to the Law Enforcement Center “on her own volition and at the request of her employer.”

When she arrived, she was thanked for coming in to give a statement and was told that the interview was voluntary and that she could leave at any time. She “responded to all of the questions posed to her and never asked to leave the interview,” he continues. “Following the interview, the defendant was escorted into the waiting room and allowed to leave.”

Maus argued that the advisory given to his client should have been recorded.

Though the interview took place at the Law Enforcement Center, an interrogation is not custodial simply because of that, Schwab said. There is no requirement that police record noncustodial questionings.

Maus argued that police believed the defendant to be a perpetrator, and because of this the interrogation was custodial.

Schwab said an interrogation is not custodial simply because the questioned person is a suspect.

Regarding the voluntary nature of Broitzman’s statements to authorities, the judge wrote that he reviewed a variety of issues that might render a statement as involuntary, including “improper inducements to confess, promises, exploitation of religious beliefs and fear produced by threats.”

Maus showed concern with statements made by the investigating officers during the interview; however, Schwab stated, “There were no improper inducements or promises made by the investigating officers. As such, the statements were voluntary and admissible.”

The defense also argued that the second statement given to Minnesota Department of Health Investigator Jolene Bertelsen on May 15, 2008, be suppressed as “fruit of the poisonous tree,” but Schwab also dismissed this.

He said this interview was a “civil investigation conducted independently of the criminal investigation. (Broitzman’s) lawyer was present during the entire interview and it was conducted in her attorney’s office.”

Because he ruled that the statements obtained on May 6, 2008, were voluntary and were not the result of custodial interrogation, the statements the next week were not tainted either, he stated.

Lastly, regarding the defense’s motion to dismiss the complaint for lack of probable cause, Schwab stated there was “sufficient evidence to believe that the defendant committed the offenses charged and as such, it is fair and reasonable to require the defendant to stand trial.”

Thus, that motion was also denied.

Charges in the case came in December after an investigation into the allegations of abuse; however, details of the allegations surfaced last August after the release of the Department of Health’s report.

It concluded four teenagers were involved in verbal, sexual and emotional abuse of 15 residents at the nursing home in Albert Lea. The residents suffered from mental degradation conditions such as Alzheimer’s disease and dementia.

Co-defendant Ashton Larson, who faces 10 charges similar to Broitzman’s, will come before the court today for her contested omnibus hearing on several of the same constitutionality issues.

Freeborn County District Court schedules show that a plea hearing in Broitzman’s case will be on Friday at 3:30 p.m. ..Source.. by Sarah Stultz | Albert Lea Tribune