Miranda’s “bright line” is murky in Blake Reber case

Greg Marsten | Staff writer
Blake Reber
BALSAM LAKE – Lingering legal questions on the admissibility of some testimony and responses made by a man accused of 50 felony charges, ranging from sexual assault of a child to possession of child porn and more, were finally answered at a hearing held last week in Polk Circuit Court, where Judge Jeffery Anderson made an oral ruling on a motion seeking to dismiss a variety of statements made during the initial questioning by law enforcement of Blake Reber, 33, Dresser.
The issue at hand revolved around the admissibility of statements made by Reber during an interview by two Polk County sheriff’s investigators on April 16, 2018, after a search warrant was executed on his Dresser home, which later led to prosecutors filing the 50 felony charges against him in May, leading to a potential prison sentence of well over 1,000 years.
However, it was during that initial taped interview by the investigators, where he was “Mirandized” and told he could seek an attorney and did not have to speak to police, where the questions arose, as Reber is heard stating at least twice that he did not want to talk.
“There are issues of testimony admittance,” Anderson said as he summarized the timeline of the charges against Reber and noted how the question of statement admissibility was first addressed by defense attorney Brian Smestad in a motion to suppress last July, several weeks after the charges were initially filed against his client.
The police interview in question lasted over an hour and included a variety of statements by Reber, in effect admitting to or confessing to a variety of sexual assaults, pornography creation and sex acts he allegedly committed against two underage female victims.
According to court documents and testimony, the interview was conducted after authorities had raided his home and found evidence that later supported the 50 charges.
“Law enforcement was already at Blake Reber’s residence and he was in custody,” Anderson said. “The investigator is heard explaining (Reber’s) Miranda rights, how they cannot continue until he explained Miranda.”
Around six minutes into that interview Reber breaks down and begins to sob, stating “I am nasty, I’m bad, I am a bad person,” adding, “I (expletive)’d up.”
However, after he breaks down, Reber is heard saying, “I don’t want to talk,” and then he made what the judge called “a number of excited utterances” including a variety of admissions.
“The issue comes down to the statement ‘I don’t want to talk,’” Anderson said as he cited a variety of cases on both sides of the question, as well as the basic history of the 1966 Ernesto Miranda v. Arizona case of rape and kidnapping that eventually wound up on the docket of the U.S. Supreme Court, which overturned Miranda’s conviction, because he had not been informed of his basic rights to silence and legal representation.
That subsequent 5-4 Supreme Court ruling has since become the basic standard for detained suspects in custodial interrogations, related to both the Fifth and Sixth Amendments to the Constitution, creating what the judge referred to as a supposed “clear articulation rule meant to set a bright line for law enforcement.”
But as the judge went through half a dozen cited case laws, he noted that the “bright line” Miranda created has been tested many times since and is not as cut-and-dried as it might seem. In essence, Anderson went through a variety of similar instances where Miranda was cited as a precedent on evidence admittance, both in Wisconsin and elsewhere.
The issue with Reber did not revolve around his seeking an attorney but whether the interview was conducted after he attempted to remain silent.
“At no point did Reber make a mention of an attorney,” Anderson said, citing testimony from one of the investigators and supported by the audiotape. The judge noted, in fact, that Reber said he did not want to talk as many as three times over the course of the interview, although the third time was so quiet and mumbled, neither investigator heard it and even his defense attorney did not mention it in his initial court motion.
According to the judge, the investigator is heard on the recording asking Reber if he was “OK to continue,” and asked him simply, “How did this start?“
But Reber’s sobbing and stating that he did not want to talk were not followed by silence, as the judge noted that it was unclear if Reber was making a blanket statement of silence, or that he simply sought time to compose himself before continuing.
“This bright line rule is not as bright as we’d hope,” Anderson said with shrug. “There are many different ways to look at it.”
As Anderson went over the possible ways Reber’s response could be interpreted, he also noted that Smestad originally sought a ruling on the two statements of Reber, but that it was the judge who first pointed out the third statement of “I don’t want to talk,” which he discovered quite a bit later in the interview, but said so quietly that, “The officer didn’t even hear it.”
Anderson cited several ways the statement could be interpreted, while also pointing out that Reber continued to voluntarily make statements, in spite of the investigator simply saying “hmmm … ” in response to this statement of not wanting to talk.
“There are a couple of ways the investigator could have interpreted Mr. Reber’s ‘I don’t want to talk,’” Anderson said.
In essence, Anderson interpreted the statement as a simple way for Reber to compose himself and stop sobbing before his answers, not that he wished to stay entirely silent to the allegations.
“This is a tough decision, that appears to be a close call,” Anderson said. “I deny the motion to suppress.”
However, the judge noted that the issue may indeed be addressed on appeal later and wanted to make sure the case law he cited was clear and relevant, giving Smestad several weeks to potentially seek an interlocutory appeal, after consulting with Reber.
If no such appeal is filed, the case will continue to move ahead, with the next status hearing slated for March 18. Reber remains in custody on a $100,000 cash bond.
After the oral ruling, Polk County District Attorney Jeff Kemp told the Leader that while the issue and case law cited was informative and relevant, he did not fear it would lead to dismissal of charges against Reber.
“I believe we have plenty of evidence against him,” Kemp said confidently. “I wasn’t real worried (about the outcome).”
Charges against Reber were filed last May, and are admittedly among the most troubling such cases the prosecution has seen, as they detail an extensive variety of assaults and sex acts that occurred, many of them caught on video.
The criminal complaint totaled 23 pages of narrative describing the alleged sexual acts, too graphic to describe and involving two underage victims, at different times.
He is also accused of filming at least some of the sex acts and then forcing each victim to watch as the other child was assaulted on film. It is believed that the allegations initially came to light when an internet service provider flagged questionable content in videos that Reber had downloaded to the internet.
Due to the nature of the acts and the age of the victims, many details have been omitted and what can be discussed in open court is seriously limited.
The charges against Reber are all felonies and include two counts of first-degree sexual assault of a child under age 13, each carrying a possible 60 years in prison. He is also charged with eight counts of child exploitation, using videos or recordings, which each carry a possible 40-year prison sentence and up to or including a $100,000 fine.
Reber also faces 32 counts of possession of child pornography, each carrying up to a 25-year prison term, with similar $100,000 fines possible. He is also charged with three counts of felony child exploitation, which carry possible 12-1/2-year prison sentences and up to or including a $25,000 fine.
His final charges include two counts of felony exposing children to harmful material, for another 3-1/2 years in prison, with up to another $10,000 in fines.
But the possible fines and prison time don’t stop there. Because Reber is a convicted felon, each count also carries a possible “repeater” enhancement that can add between four and six years to each conviction.
In total, Reber is facing a possible sentence of over 1,300 years in prison, even without the “repeater” enhancements, which may add several hundred more years to the sentence, if convicted.
According to public court documents, Reber has been convicted on a variety of criminal charges, going back over 13 years, which include multiple drug possession charges, disorderly conduct, resisting arrest, bail jumping, burglary, theft, driving while intoxicated, several other driving violations and more, many of which were dismissed in subsequent plea bargains.
Reber waived his right to a preliminary hearing last summer and pleaded not guilty to all 50 felony charges at his arraignment last June.
There have been several questions raised about Reber’s mental competency, although that has not been officially addressed in court, as of yet.

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