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FBI interview suppressed
by Gregory R. Norfleet · News · May 29, 2014
An aunt charged with leaving her abducted infant nephew out in freezing temperatures succeeded in getting at least part of her statements to law enforcement suppressed from trial.
Also, a federal judge pushed back the trial of Kristen Smith, 32, of Aurora, Colo., to July 28. The trial is expected to last three days.
Federal prosecutors filed a response to Smith’s motion to suppress three interviews that occurred between her Feb. 6 arrest and when five-day-old Kayden Powell was found in a tote box outside the West Branch BP-Amoco station on Feb. 7.
In that response, prosecutors say that Smith was not advised of her Miranda rights prior to an interview on Feb. 6 from approximately 12:26 and 2:14 p.m. with FBI special agents James McMillan and Carlton Morgan.
“Therefore, the government will not seek to introduce any statements made by Smith to (special agent) McMillan or (special agent) Morgan during that time period,” read the response, filed May 13.
However, the prosecution argues that Smith’s statements to West Branch Police Officer Alex Koch and other statements made to McMillan and Iowa Department of Public Safety Special Agent Derek Reissen should be admissible. U.S. Attorney John Vaudreuil then adds a footnote that Smith has not moved to suppress her statements to Koch, and that “the government intends to play excerpts from Smith’s interviews” to show her other statements to McMillan and Reissen ought to be included.
Reissen administered the polygraph test at about 6 p.m. Feb. 6. According to court documents filed by the prosecution, Smith signed an Acknowledgement and Waiver of Rights about 9:30 a.m. Feb. 7 at the Cedar County Jail.
Smith’s attorney, Matthew L. Noel, has argued that investigators failed to tell Smith her Miranda rights and failed to provide her with an attorney when she asked for one, including when she was “forced” to take a polygraph test.
Vaudreuil said Smith needs more than “vague or conclusory allegations” to get her remaining statements suppressed.
“Defendant has the burden of presenting ‘definite, specific, detailed, and nonconjectural facts’ to establish that there is a disputed issue of material fact as to the voluntariness of (her) confession,” he argued, referencing United States v. Rodriguez. “Because Smith has made only general allegations of coercion without siting (sic) any specific or detailed facts, Smith has failed to meet her burden of proof to establish any disputed issue or material fact pertaining to the voluntariness of her statements and confession.”
Jury selection is scheduled to begin 9 a.m. July 28. A final pretrial conference is set for 10 a.m. July 11 and final pretrial motions are due July 9. The final hearing before trial is set for 3 p.m. July 22. WBPD’s Koch is among the witnesses scheduled to appear at trial.
Powell was taken from his Wisconsin home in the early morning hours of Feb. 6. Law enforcement alleges that Smith took him and was driving through Iowa and stopped in West Branch when she became aware that investigators were closing in, hiding Powell, wrapped in blankets, in the tote box. Daytime temperatures were below freezing and nighttime temperatures were below zero, and investigators determined Powell somehow survived about 29 hours in that box before he was found by West Branch police.
Smith was arrested on the south side of Interstate 80 in the Kum & Go gas station parking lot after Koch allegedly found children’s clothing and a prosthetic pregnancy belly in Smith’s 2012 Dodge Durango. Smith was arrested on an unrelated warrant out of Texas, and was questioned by investigators about the items Koch found in her car.
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