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Court News Ohio
Court News Ohio

Social Worker Acting Pursuant to Statute Not an Agent of Law Enforcement

The Ohio Supreme Court ruled today that social workers acting pursuant to statute when they interview those in custody —and who are not acting under the direction or control of law enforcement — are not law enforcement agents and do not have to read or remind those in custody of their rights before conducting the interview.

The Supreme Court ruled that a Cuyahoga County Children and Family Services social worker did not have to read Demetrius Jackson his Miranda rights before interviewing him about the alleged 2015 rape of a 14-year-old girl, after Jackson had declined to speak with police after they read him his Miranda rights.

Jackson argued his rights under the U.S. Constitution’s Fifth and Sixth Amendments were violated when social worker, Holly Mack, shared his account of the interaction with the teenage girl with law enforcement and her information was used at trial. Writing for the Court majority, Justice Terrence O’Donnell stated that while Ohio social workers have a statutory duty to cooperate and share information with law enforcement, that duty itself does not make the worker an agent of law enforcement.

Chief Justice Maureen O’Connor and Justices Judith L. French, Patrick F. Fischer, and R. Patrick DeWine joined Justice O’Donnell’s opinion. Justice Sharon L. Kennedy concurred in judgment only.

In a dissenting opinion, Justice Mary DeGenaro wrote that a social worker’s interview of an alleged perpetrator must be reviewed on a case-by-case basis to determine if the worker is acting an as agent of law enforcement, and in this case, she concluded the Mack was acting as an agent.

Social Worker Speaks to Suspect in Jail
In 2015, a teen identified in court records as C.H. was 14 years old when she went to the home of a friend, with her sister, and Jackson, a friend of C.H.’s sister. During the night, C.H. went to sleep in an upstairs bedroom. Jackson woke her up and offered to pay her for sex. She refused and Jackson forced her to have sex, and she resisted. She escaped and ran to a family member’s nearby home.

The police were called and Jackson was arrested. When officers attempted to interrogate him, he refused to speak after being advised of his Miranda rights.

The incident was reported to the Cuyahoga County Division of Children and Family Services, and the case was assigned to Tina Funfgeld, social worker with the agency’s sex abuse unit. Funfgeld contacted the police to conduct a joint interview of C.H. Separately, Funfgeld asked Mack, another social worker in the same unit who was “assigned to the county jail,” to interview Jackson.

Mack described one of her prime duties was to interview alleged perpetrators when the agency receives referrals for child abuse and neglect. She testified that she identifies herself and advises the suspect of the allegations and states that anything they say “can be subpoenaed by the [c]ourts,” and that it is up to them to continue the interview.

Jackson told Mack he had consensual oral sex with C.H., whom he believed was at least 21 years old, and denied having vaginal sex with her. A grand jury indicted him on three counts of rape and additional counts of gross sexual imposition, importuning, felonious assault, and kidnapping with a sexual motivation specification.

Suspect Objects to Social Worker’s Testimony
Jackson waived his right to a jury trial, and his attorney objected to Mack’s testimony during the trial about the statements Jackson made to her. The attorney charged that Mack questioned Jackson “as an agent of the state and law enforcement” and failed to notify him of his Miranda rights. The court overruled the objection and allowed Mack to testify. Jackson testified on his own behalf, reiterating his claim that he only had consensual oral sex with C.H.

The court found him guilty of two rape counts, gross sexual imposition, and kidnapping with a sexual motivation specification. He was sentenced to 11 years in prison. Jackson appealed, claiming the court violated his constitutional rights by allowing Mack to testify and for other alleged errors made by the trial court.

In a 2-1 decision, the Eighth District Court of Appeals reversed his conviction, finding that Miranda rights must be read to a suspect before an interrogation while in custody when the questions are asked by law enforcement or an agent acting “under the direction or control of a law enforcement agency.” It concluded that Mack acted as an agent of law enforcement and should have read Jackson his rights.

The state appealed the conviction’s reversal and the Supreme Court agreed to hear the case.

Court Examines Roles of Law Enforcement, Children Services
Under what is now R.C. 2151.421(G)(1), a public children service agency must investigate reports of neglect and abuse, and those investigations must be made in cooperation with law enforcement agencies. Law enforcement agencies must have a “memorandum of understanding” with the children services agency, and an agency must submit a written report of its investigation to the law enforcement agency. R.C. 21561.421(K) explains the intent of the memorandum is to establish operating procedures for officials involved in cases of child abuse and neglect, and that the primary goals of the procedure are to eliminate unnecessary repetitive interviews of children suspected of being abused or neglected.

Justice O’Donnell explained that the issue before the Court concerned whether Mack’s duty to comply with the law’s requirement to cooperate and share information with law enforcement rendered her an “agent of law enforcement” for the purposes of determining if Jackson’s constitutional rights were violated. He noted prosecutors cannot use statements made by suspects made during custodial interrogations unless the suspects are warned of their Miranda rights. However, the Court in its 1971 State v. Watson decision found this limitation applies only when the questioning is initiated by law enforcement after a person has been taken into custody and does not apply to admissions the person makes to those who are not officers of the law or their agents.

The Court ruled there was no evidence in the record  that Mack acted as an agent of law enforcement when she interviewed Jackson. The only contact between the children services agency and law enforcement is when Funfgeld contacted law enforcement about interviewing C.H., which is consistent with the goal of R.C. 2151.421(K)(2), the opinion stated.

“There is no evidence that law enforcement asked Mack to interview Jackson before or after the detective’s failed attempt to interview him or that law enforcement influenced Mack’s interview of Jackson in any way,” Justice O’Donnell wrote.

The Court reversed the Eighth District’s decision and remanded the case to the Cuyahoga County Common Pleas Court for further proceedings.

Dissent Finds Worker Acted As Law Enforcement Agent
In her dissent, Justice DeGenaro noted the statutory scheme directs children services, law enforcement, and prosecutors to work collaboratively to investigate and prosecute crimes against children. Social workers for children service agencies do more than report instances of child abuse and neglect. They also must investigate and make any recommendations to prosecutors “necessary to protect any children that are brought to its attention,” she noted.

The dissent indicated that Mack not only had to deliver a written report to the law enforcement agency, but she also uploaded the results of her interview with Jackson into a “statewide automated child-welfare information system,” that can be accessed by law enforcement and prosecutors to prosecute abuse and neglect cases.

The opinion stated that while the law does not “categorically” transform a children services investigator into a law enforcement agent, the facts lead the dissent to conclude that Mack was acting as the functional equivalent of law enforcement when she had Jackson removed from his housing unit in the jail so she could question him.

The dissent noted Mack never testified she followed her standard protocol when interviewing Jackson or if there was any indication he understood the “ramifications for him.” Those ramifications included that the statements he made could be used against him at trial, or that the admission of Mack’s testimony would put him in the position of having to take the stand at trial to refute Mack’s statements.

“Based on these facts, it is highly questionable whether Jackson would have spoken to Mack had she first advised him of his Miranda rights,” the dissent stated.

Based on her action, Mack violated Jackson’s rights against self-incrimination guaranteed by the Fifth Amendment, and his Sixth Amendment rights to have any attorney present and key moments in criminal proceedings, the dissent concluded.

2017-0145. State v. Jackson, Slip Opinion No. 2018-Ohio-2169.

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