WAUKESHA

An appeals court ruled that a Whitewater man’s confession that he sexually assaulted a child was voluntary, but a dissenting judge said the decision against the man who has “significant mental deficiencies” allows police to lie to, threaten and manipulate suspects.

The District 2 Court of Appeals affirmed a Walworth County judge’s decision to allow an incriminating statement from John S. Finley, whom prosecutors in 2014 charged with repeatedly sexually assaulting a child he knew.

A jury found Finley guilty in 2016, and Judge Kristine Drettwan sentenced him to 20 years in prison and 10 years of extended supervision for the instances of inappropriate touching.

Finley’s lawyer, Ellen Henak, said in an email that she filed a petition Tuesday asking the state Supreme Court to review the case.

At issue is an interview two police officers conducted in May 2014 at the apartment where Finley, then 36 and now 41, lived with his mother.

When police arrived, Finley “crawled” out of the bathroom and told police he was not feeling well. Police offered to get medical assistance, which Finley “declined until after he appeared to become anxious following his incriminating statements,” the decision states.

The judges affirming the Walworth County decision to allow Finley’s statements mentioned that police interviewed Finley for less than an hour, did so at his kitchen table, brought him water and asked if he wanted medical attention.

Finley also did not say he wanted to end the interview, according to the June 12 decision. He was never handcuffed or yelled at.

“While Finley’s intellectual capacity certainly is a significant consideration, it is not dispositive,” the decision states. “Considering the totality of the circumstances, we agree with the circuit court that his statement was voluntary …”

But the dissent emphasized other factors from the interview.

For one, Finley’s sister said he “has the mental capacity of a 12-year-old” and “socially functions at a first-grade level,” according to the decision.

Finley’s aunt, who was a retired social worker, said he was easily manipulated and intimidated, gives in to pressure and “just says what people … want to hear.”

A doctor who performed a psychological evaluation said Finley had an IQ of 72, which is slightly above being intellectually disabled. The doctor said Finley, “for the most part,” could answer simple, short and concrete questions.

“Finley is not a common man; he is a boy with a man’s age,” the dissent states.

Finley was physically ill, as well, and eventually went to the hospital via ambulance.

Finley denied the child’s allegations at least three times, according to the dissent.

The officer lied about exactly what the child alleged because an accidental touch in this case was not sexual assault, according to the dissent. So police tried to take it one step further, alleging there was penetration.

That officer also did not take Finley into custody because doing so would have required reading him a Miranda warning, including his right to a lawyer, according to the dissent. The officer said a lawyer would have been an “impediment” to a confession.

One of the officers said he believed the child and was not interviewing Finley “for the truth, (he was) going to get a confession,” according to the decision.

The decision said what police did to Finley is “common.”

“Were we to follow Finley’s apparent suggestion that law enforcement should be limited to simply accepting a criminal suspect’s first-response denial to a one-time asked, open-ended question of ‘Did you sexually assault (the child)?’ law enforcement may as well simply be precluded from questioning suspects altogether,” the decision states.

But the dissent expressed concern over the precedent that could be set.

While being a judge or police officer is “noble,” it is “ignoble” that law enforcement can lie while prosecutors are able to charge people with obstructing an officer if they lie to police.

“In life, we do not trust a liar or a deceiver, yet we are imposing that character trait upon our police,” the dissent states. “Having authorized dishonesty, we must be prepared to accept dishonest results. Finley’s interview was not an investigation; it was an inquisition.”