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Attorneys at odds over mental health, rights info
(by Joseph Koziol Jr. - October 17, 2012)
Attorneys at odds over mental health, rights info
By JOSEPH KOZIOL JR.
CHARDON – Geauga County prosecutors are asking for more information in the case against accused murderer Thomas “T.J.” Lane III, while defense attorneys are asking the court to provide less.
The filings came as both sides prepare for a scheduled Nov. 26 trial date in which Mr. Lane faces three counts of aggravated murder, two counts of attempted aggravated murder and one count of felonious assault. Three persons died in the Feb. 27 shootings at Chardon High School, with another three wounded.
On Oct. 9, Assistant Prosecutor Nicholas A. Burling asked the court to allow prosecutors to be privy to all information that may have been obtained by the defense’s mental health experts, who have been questioning Mr. Lane.
“Communication between a physician and a patient is generally considered ‘privileged,’” he wrote. “However, when a defendant enters a plea of not guilty by reason of insanity, the examiner conducting the evaluation is required to ‘consider all relevant evidence.’”
Mr. Burling cited appellate court cases noting the privilege is waived with a plea of not guilty by reason of insanity.
On Oct. 1, a written notification was filed with the court, changing Mr. Lane’s plea from guilty to not guilty by reason of insanity. “When he changed his plea,” Mr. Burling wrote, “he voluntarily made his mental status an issue in the case.”
Mr. Burling stated that all evidence, not just what the defense plans to use, must be made available to prosecutors.
“The law governing the creation of such a report, however, directs the examiner to consider all relevant evidence,” he wrote. “Were the state to simply rely on those things the defendant’s doctors consider important, it would be placed at a disadvantage in that it would not be given a chance to look at the full picture of the defendant’s state of mind at the time of the incident.”
While prosecutors seek additional information, defense attorney Mark DeVan filed two motions Monday asking the court to suppress statements police received the day of the shooting from Mr. Lane and his family. Mr. DeVan charges those statements were obtained in violation of state and federal law and Mr. Lane’s constitutional rights.
One motion asks to exclude or suppress statements from the Lane family on the day of the shootings that were obtained by the Chardon Police Department. “Said communications were electronically intercepted and recorded in violation of state and federal wire-tap and electronic interception statutes, and their use would violate state and federal law,” Mr. DeVan wrote.
Police Chief Timothy McKenna said Monday he was unaware of the filing. Numerous people were brought to the police station that day, including Mr. Lane’s family, the victims’ families and students. He indicated that all were spoken to in the department’s interrogation room, which has a camera and audio recording equipment.
In a separate motion, Mr. DeVan asked the court to suppress statements made by Mr. Lane while he was being held at the Geauga County Safety Center the day of the shootings. He said Mr. Lane surrendered himself to passing motorists the day of the shootings and was transported by a deputy to the safety center. During the transport, he wrote, the deputy gave him his Miranda warnings and questioned him about the incident.
“A second interrogation of T.J. Lane took place at the Geauga County Sheriff’s Office over the next five hours and 55 minutes, with short breaks for T.J. to have his hands swabbed for gunshot residue, to change into a jail uniform and while interrogating officers conferred outside his presence,” Mr. DeVan wrote. “At no time during this lengthy questioning of T.J. Lane by teams of skilled interrogators did he have the benefit of counsel. It is this interrogation that T.J. Lane seeks to suppress in violation of his constitutional rights.”
In a partial transcript of the interrogation submitted in support of the motion, officers are recorded asking Mr. Lane to put down in writing what happened, adding, “You don’t have to do this.”
Mr. DeVan wrote that officers failed to give Miranda warnings until later in the interrogation. “Based on the elapsed time indicator on the video recording of the interrogation of T.J. Lane at the sheriff’s office, he was not Mirandized until after he was questioned, almost continually, for 3 hours and 49 minutes without the benefit of advice of his rights.
“The interrogators never ensured that the defendant was properly Mirandized, but rather forged ahead with generalizations about his understanding his rights. That is constitutionally insufficient to ensure a valid invocation or waiver of rights.
“In the present case, the defendant, a youth by anyone’s standards, under arrest for the first time in his life and the likely suspect in a triple homicide, was questioned at the sheriff’s office for nearly four hours before any skilled interrogator bothered to sit down with him and go over his rights in detail and obtain a waiver and consent to questioning.”
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