Appellant McCowen Brief - Mass Cases

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poverty, inebriation, and a high-profile murder unsolved
for forty months. Potential for manipulation ran high.
Police have known a suppression rule was possible,
if not inevitable, since Diaz. Even under current law,
this interrogation doesn't pass muster. The trial court
found McCowen' s statements voluntary because he didn't
confess, a faulty analysis. Early jurisprudence on the
Humane Practices Rule focused on the confession/admission
distinction, excluding involuntary confessions, but not
involuntary non-confessional statements. Commonwealth v.
Marshall, 338 Mass. 460, 464 (1959); Commonwealth vI
Haywood, 247 Mass. 16, 18 (1923). The U.S. Supreme Court
eradicated that distinction; admission of any involuntary
statement offends due process. Mincey, 437 U.S. at 398.
This Court also focuses on statements, not confessions,
when analyzing voluntariness. See Commonwealth v.
Anderson, 445 Mase. 195, 205-06 (2005).
under Mincey, McCowen's refusal to confess is
irrelevant. He tried to contact his attorney, was
marginally retarded, handicapped by narcotics and
alcohol, and interrogated for six-plus hours with no
recording. His statements were not voluntary beyond a
reasonable doubt. The trial court erred, failing to
factor the absence of a recording into its analysis.
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