In re M.A.

¶1¶ 19. concurring. I agree that the district court properly exercised its jurisdiction in the Act 248 placement proceeding and that, given H.H.’s credible testimony coupled with corroborating statements made by defendant, the court could have found it highly probable that defendant, at minimum, engaged in *364lewd or lascivious conduct with H.H. and thus clearly and convincingly posed a danger of harm to others. Accordingly, I concur with the majority’s mandate. I write separately, however, to emphasize my belief that (1) neither of the district court judges made a sufficient inquiry into whether defendant voluntarily confessed to police — in that neither judge adequately considered the impact of acknowledged sophisticated interrogation techniques on the mentally retarded defendant; and (2) the record strongly suggests that those sophisticated techniques employed by the interrogating officer overcame defendant’s will, resulting in an involuntary confession.

¶2¶ 20. The parties stipulated that defendant was mildly mentally retarded for purposes of the Act 248 proceeding. Certainly, the record demonstrates that he functioned at no higher level than that. In his decision on defendant’s motion to suppress, Judge Wesley noted that a 1993 assessment had found defendant’s full-scale intelligence quotient (IQ) to be 65, indicating mild mental retardation. But a March 2004 letter from defendant’s high school admitted into evidence stated that, based on the Wechsler intelligence scale for children, defendant had tested at a full-scale IQ of 52, just above the cutoff for moderate mental retardation. Likewise, in a written summation of his psychiatric evaluation of defendant in May 2007, Dr. Cotton noted that defendant had a full-scale IQ of 52, placing him in the lowest range of persons with mild mental retardation. In any case, as the district court found, defendant functioned below the first percentile of persons his age in the general population.

¶3¶21. In his written evaluation, Dr. Cotton stated that defendant’s mental deficits were typical of someone with his degree of mental retardation. According to Dr. Cotton, those deficits were most pronounced with respect to defendant’s inability to manipulate abstract ideas and make judgments about both actions and thoughts. Therefore, defendant had “substantial difficulty with interpersonal judgment.” Dr. Cotton specifically cited the police description of defendant’s “undue friendliness with Officer Anderson” as “another example of his inability to understand a situation, exercise rational judgment, and take appropriate behavior.” The district court agreed, noting in its competency decision that defendant “has shown severely warped perceptions as to who is an advocate or ally, and who is an opponent. This was demonstrated by his view of Detective Anderson as his friend.”

¶4*365¶ 22. The court’s finding on this point is painfully evident from even a cursory reading of Detective Anderson’s four-hour interrogation of defendant. Detective Anderson started the interrogation by stating that “[w]e’re not really doing investigations today.” When defendant noted that someone else (presumably another officer at the police station) had told him that they were conducting an investigation, Detective Anderson responded that “Homebody gave you some bum scoop on that.” In Detective Anderson’s words: ‘We’re just two guys” who are “[h]aving a conversation.” Over the next four hours, Detective Anderson employed what the district court described as “sophisticated questioning techniques” designed to extract a confession from defendant. The main ploy adopted by Detective Anderson — one that was startlingly effective on defendant — was to convince defendant that he (Detective Anderson) was his friend and confidante who understood, indeed sympathized, with his predicament.

¶5¶ 23. One must watch the videotape or read through the entire 243-page transcript to fully appreciate the effectiveness of Detective Anderson’s unrelenting techniques in turning defendant’s initial denials of sexual contact with H.H. and other young women into direct acknowledgement of a variety of criminal acts. To attain this result, as the district court found, Detective Anderson made repeated statements, many untruthful, aimed at convincing defendant that, among other things: (1) he was on defendant’s side; (2) he did not find personally offensive, or even criminal in nature, some of the sexual contact that defendant had engaged in with H.H. and others; (3) he would help defendant if defendant helped him; (4) he was highly trained to detect when people were lying, and he knew when defendant was lying; (5) he asked only questions to which he knew the answers; and (6) H.H. and others had talked to him about the sexual contact defendant had had with them.

¶6¶ 24. Early on in the interview, Detective Anderson stated: “I’m a good person, and I’m not out to get you.” Detective Anderson told defendant that the only important thing is that “when you walk out of here today, and you understand that you’re walking out of here today? ... I want to know that what you told me is true.” Continuing his theme that they were buddies just having a conversation, Detective Anderson further stated: “And you know what? You and I probably don’t think a hell of a lot differently. . . . We probably think about things very similar. . . . And *366you and I, being the guys that we are, okay, we think about the same way. I’m no different than you are.” Detective Anderson immediately expanded on this theme: “So I know exactly what you’re thinking, and, frankly, I don’t have any problem with it. Okay?”

¶7¶ 25. When defendant initially denied sexual contact with another girl thought to be underage at the time of the contact, Detective Anderson assured defendant that “it’s no big deal” and suggested that she may have been playing “hard to get.” Detective Anderson continued his “buddy” role when discussing in great detail defendant’s presumed foreplay with the girl, at one point asking if defendant was able to remove a bra with one hand. When defendant responded that he was unable to do so, Detective Anderson admonished him: ‘You need to practice.”

¶8¶ 26. For the most part, defendant seemed oblivious to what he was admitting to or to whom he was admitting it. When, on occasion, defendant mentioned anything about getting into trouble, Detective Anderson would quickly return to the theme that the “interview” was about truth and honesty and not about getting into trouble. On such occasions, he would reiterate: “The door is open. I told you you weren’t under arrest. ... I told you that you could get up and leave. I let you drive down here.” Detective Anderson further explained: “I think that you’re worried about what’s going to happen if you tell me the truth, and what I’m telling you is that you don’t need to worry about that. Did you ever hear the expression ‘the truth will set you free?’ ”

¶9¶ 27. When Detective Anderson started talking about defendant meeting six-year-old H.H. for the first time, he asked defendant without sarcasm: “Love at first sight?” Defendant responded that he did not know at that point “if I loved her enough to marry her or anything right off. I mean if she was my age, yes. But she’s not.” Detective Anderson responded: ‘Well, I’m — I mean Sarah [who was either 15 or 16 at the time defendant allegedly had sexual contact with her] wasn’t your age either ...” When defendant explained that Sarah was closer to his age, Detective Anderson agreed, but noted that “little kids today aren’t like little kids when I was growing up or even little kids when you were growing up. Kids today are — they grow up a lot faster.” Defendant agreed, noting that H.H. had grown to nearly his height since he first met her when she was six years old. Ignoring defendant’s failure to grasp his meaning and not missing a beat, *367Detective Anderson added: “And she sure don’t behave like a little kid? She really behaves like a young adult?”

¶10¶ 28. Noting that H.H. “is something else,” Detective Anderson expressed sympathy that “you guys can’t get together yet. You think it’s going to happen though?” When defendant said he did not know, Detective Anderson asked why not, saying that he bet defendant felt strongly about her, more so than he did about Sarah. After defendant reiterated that he could not marry her now, Detective Anderson agreed, “[n]ot yet,” but added: “The time’s coming.” Detective Anderson stated that he talked to people all the time that are in love with younger people, noting that sometimes they even act on it. Detective Anderson explained, however, “what concerns me is what’s the quality of the relationship. Does the girl want the relationship? Does she participate in the relationship? Okay. And clearly [H.H.] does.”

¶11¶29. At one point, defendant reached into his pocket and produced a “love letter” that he had written to H.H. Detective Anderson suggested that it was okay for him to love her, saying: “I don’t think that you are forcing her to do anything, [M.]. I think that everything that you have done in your relationship with [her], you did it because she wanted it.” Detective Anderson explained to defendant that he was likely to get into trouble by keeping things secret “as opposed to putting things out there and saying, you know what? I love [H.H.]. You don’t want to be married to [H.H.]?” Detective Anderson stated that it was “clear” to him from talking to everyone “that you feel very strongly about [H.H.]. That your feelings are genuine, and they are real, and she feels the same way about you. Why should you hide from that? Why should she have to hide from that?” Returning to his theme that it was okay for defendant to speak to him as a friend, Detective Anderson stated: “But right now, this is you and me. There’s no other cops. There’s no bosses. There’s not lawyers. There’s no State’s Attorney. There’s no Judges. It’s just you and me talking.”

¶12¶ 30. Detective Anderson eventually moved on to defendant’s interactions with other young girls at an elementary school. When Detective Anderson asked how it happened that he was discovered holding hands with one particular girl, defendant stated that she liked him and just came up to him and started holding hands with him. Detective Anderson’s response, in his role as conspiring buddy, was: ‘You are about the luckiest — you are a stud. You know that? You’re a stud.”

¶13*368¶ 31. Incredibly, Detective Anderson testified at the suppression hearing that he did not recognize defendant’s mental deficiencies during his “interview” of defendant. The videotape and transcript of the interrogation, however, strongly support Judge Wesley’s skepticism on this point. As defendant’s expert testified at the Act 248 proceeding, individuals having a mental capacity within the normal range would have rejected as ridiculous Detective Anderson’s feigned understanding of, and sympathy to, notions such as that the quality of the relationship, rather than the age difference, is the important thing in a “love” relationship between a thirty-year-old adult and a six-year-old child. According to the expert, Detective Anderson felt that he could get away with presenting notions such as this based upon his assessment of the target. Given defendant’s evident mental limitations, particularly his hyper-suggestibility, Detective Anderson’s strategy of building and nurturing a false sense of camaraderie worked perfectly. As Judge Hayes later found, defendant’s warped perceptions of who is an ally and who is an adversary led him to view Detective Anderson as his friend, which resulted in, as Judge Wesley so aptly put it, defendant’s “placid complicity in his deepening self-incrimination.”

¶14¶ 32. “Excessive friendliness on the part of an interrogator,” even with normal individuals, “in combination with other tactics, [] might create an atmosphere in which a suspect forgets that his questioner is in an adversarial role, and thereby prompt admissions that the suspect would ordinarily make only to a friend, not to the police.” See Miller v. Fenton, 796 F.2d 598, 607 (3d Cir. 1986). In this case, that effect was highly exacerbated because of the susceptibility of the mentally retarded defendant. Experts, including the expert in this case, have documented the heightened vulnerabilities and susceptibilities of defendants with mental retardation to tactics such as those employed by Detective Anderson. See J. Ellis & R. Luckasson, Mentally Retarded Criminal Defendants, 53 Geo. Wash. L. Rev. 414, 428-32 (1985); see also State v. Ives, 162 Vt. 131, 152-53, 648 A.2d 129, 142 (1994) (Johnson, J., dissenting) (citing authorities and detailing tendencies that make mentally retarded suspects extremely vulnerable to interrogation tactics aimed at obtaining confession). Because of their tendency to want to appease authority figures or mask their lack of understanding or uncertainty regarding past events, mentally retarded persons are far more likely than higher-functioning individuals to respond to questioning based on what they believe *369the questioner is looking for rather than on their actual memory of what occurred. See State v. Lockwood, 160 Vt. 547, 569, 632 A.2d 655, 668 (1993) (Johnson, J., dissenting) (citing Ellis & Luckasson, supra, at 428-30).

¶15¶ 33. For their part, police, of course, are trained to use certain tactics during an interrogation — such as positing guilt as a fact, minimizing the moral seriousness of the offense, casting blame on society in general, and alternating between befriending and cajoling the suspect — that will break down a suspect’s defenses by working on individual weaknesses, thereby obtaining a confession. See Miranda v. Arizona, 384 U.S. 436, 448-55 (1966). In the context of interrogating individuals who are not mentally retarded, tactics such as these are generally considered acceptable under the law. See State v. Bacon, 163 Vt. 279, 293-94, 658 A.2d 54, 64 (1995) (noting that police may use some psychological tactics in eliciting statements from suspects so long as suspect’s decision to confess results from suspect’s own balancing of competing considerations).7 Moreover, the United States Supreme Court has held that “while mental condition is surely relevant to an individual’s susceptibility to police coercion, mere examination of the confessant’s state of mind can never conclude the due process inquiry.” Colorado v. Connelly, 479 U.S. 157, 165 (1986).

¶16¶ 34. But “ ‘[t]he limits [of permissible questioning tactics] in any case depend upon a weighing of the circumstance of pressure against the power of resistance of the person confessing. What would be overpowering to the weak of will or mind might be utterly ineffective against an experienced criminal.’ ” Miller, 796 F.2d at 611 (quoting Stein v. New York, 346 U.S. 156, 185 (1953)). In examining the voluntariness of a confession under the totality of the circumstances, we must ultimately consider whether the physical or psychological pressure placed on the defendant “ ‘cause[d] the [defendant’s] will to be overborne and-his capacity *370for self-determination to be critically impaired.’ ” State v. Zehner, 142 Vt. 251, 254, 458 A.2d 1126, 1127 (1982) (quoting Ferguson v. Boyd, 566 F.2d 873, 877 (4th Cir. 1977)).

¶17¶ 35. The totality-of-the-circumstances approach recognizes the synergistic nature of interrogations in which police use a variety of subtle tactics to create an atmosphere that will break down the targeted suspect. In this case, as plainly evidenced by the videotape and transcript, the mentally retarded defendant was putty in the hands of Detective Anderson, who befriended defendant, convinced him that they were buddies, lied to him about what police knew, minimized the sexual contact between H.H. and him, and then badgered him into providing details of that contact.

¶18¶ 36. In the criminal context, this confession should have been suppressed. In admitting the confession, Judge Wesley focused on facts such as that defendant “was questioned in an open environment,” that Detective Anderson “was not in uniform,” that “no other police officers participated in the interview,” that defendant “never gave any indication of wanting to terminate the encounter,” and that defendant “remained cooperative and seemingly unruffled.” But no show of force was necessary, or even desirable, in these circumstances, given the police strategy of befriending defendant. It was not the intimidating power of the State that overcame defendant’s will, but rather the interrogator’s successful strategy of convincing defendant that he (the interrogator) was an ally rather than an adversary. Indeed, if anything, the facts noted by Judge Wesley further demonstrate that Detective Anderson successfiilly employed his strategy -of convincing defendant that he was a friend, which is consistent with both Judge Hayes’s finding that defendant viewed Detective Anderson as his friend and Dr. Cotton’s conclusion that defendant’s “undue friendliness” with Detective Anderson stemmed from his mental retardation.

¶19¶ 37. As noted, Judge Wesley explicitly recognized defendant’s “placid complicity in his deepening self-incrimination.” The court was not persuaded, however, that defendant’s mental retardation led to this complicity because the record demonstrated that defendant understood both the subject matter of Detective Anderson’s inquiries and the implications of his responses to those inquiries. I agree that, for the most part, defendant understood the surface meaning of the detective’s inquiries and also knew, at least at some level, that his sexual contact with H.H. was wrong. But the court made little inquiry into critical questions such as: *371What exactly were defendant’s mental limitations? How did those limitations make him susceptible to the specific tactics employed by Detective Anderson? To what extent were those tactics successful, given defendant’s mental limitations? And, most importantly, did those limitations compromise the reliability of his responses? Obviously, defendant’s mental limitations were significant enough that Detective Anderson felt he could extract a confession from defendant by convincing him, even if only temporarily, of notions such as that having sexual contact with a young child was okay as long as it was a “quality relationship” not forced upon the child.

¶20¶ 38. We have held that a person under eighteen years of age is entitled to have an adult interested in protecting the juvenile’s rights present before agreeing to a custodial interrogation. State v. Piper, 143 Vt. 468, 473, 468 A.2d 554, 557 (1983); see In re E.T.C., 141 Vt. 375, 379, 449 A.2d 937, 940 (1982). We reasoned in Piperthat “a mature decision cannot be made by a minor who is isolated, ignorant of his rights or intimidated by his surroundings.” 143 Vt. at 473, 468 A.2d at 557. As I stated in Ives, the rationale for our decision in E.T.C. “was that minors hold a protected status in our society, which has recognized that juveniles often lack the capacity and responsibility to realize the full consequences of their actions.” 162 Vt. at 154, 648 A.2d at 143 (Johnson, J., dissenting). Much the same can be said for persons with mental retardation. I continue to believe that, in most, if not all, instances, interrogating a mentally retarded defendant without the presence of an interested adult (and, notwithstanding any ruling to the contrary, this was plainly an interrogation of a suspect regarding a specific crime) cannot satisfy the totality-of-the-cireumstances test for admission of a confession. See id. at 153, 648 A.2d at 142 (Johnson, J., dissenting). Certainly here, in making its voluntariness decision, the district court failed to make a detailed context-specific inquiry into the suspect’s cognitive deficiencies and the potential impact of the interrogator’s tactics in light of those deficiencies.

¶21¶ 39. As I stated at the beginning of this concurrence, however, I would not reverse the district court’s decision — in the context of this Act 248 proceeding — to place defendant in the custody of the Commissioner of Disability, Aging and Independent Living (DAIL). The court found H.H.’s testimony concerning the sexual contact between her and defendant to be credible and generally *372consistent, albeit with some expected inconsistencies. The court also found that several of defendant’s statements made to police were consistent with H.H.’s testimony. These statements, along with defendant’s “love letter,” corroborated H.H.’s credible testimony, notwithstanding the general unreliability of defendant’s confession. In short, there is clear and convincing evidence that defendant poses a danger of harm to others because the record supports the court’s determination that it was highly probable that he engaged in, at minimum, lewd or lascivious acts with a child. See In re E.T., 2004 VT 111, ¶ 13, 177 Vt. 405, 865 A.2d 416 (noting that test on review in cases involving involuntary mental health treatment is whether factfinder could have reasonably concluded that required factual predicate was highly probable); 18 V.S.A. § 8839(1) (defining “[djanger of harm to others” to include persons who commit acts that “would constitute a sexual assault or lewd or lascivious conduct with a child”); 18 V.S.A. § 8839(3) (defining person in need of custody as mentally retarded person who presents “danger of harm to others”).