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Legal dance with police in Lisa Irwin case is part of the system

Legal dance with police in Lisa Irwin case is part of the system
MARK MORRIS and CHRISTINE VENDEL, The Kansas City Star
PUBLICATION: Kansas City Star, The (MO)

SECTION: News

DATE: October 26, 2011

Page: A1
Just the thought of putting his clients in a room with police officers makes defense lawyer John Picerno nervous.

“My own view is that my clients should never talk to police,” Picerno said Tuesday. “I tell them, ‘The prisons are full of people who talked to the police. The police are going to do what they are going to do, with or without your cooperation and your statement.’ ”

Still, defense lawyers and former investigators said that ongoing negotiations between police and attorneys for the parents of a missing 11-month-old girl over the conditions for more interviews are a routine part of the system.

Last week Cyndy Short, a lawyer for Deborah Bradley and Jeremy Irwin, said she was setting boundaries for her clients’ cooperation with police and insisting on ground rules in exchange for additional interviews about the disappearance of Lisa Irwin in early October.

Police have issued public appeals to Bradley and Irwin for separate “unrestricted” interviews to follow up on issues raised at their last formal interrogation on Oct. 8.

Conducting separate interviews is a standard police procedure. Officers even do it at traffic accident scenes, where they pull drivers and witnesses apart to speak to them. So they certainly wouldn’t deviate from the practice in a missing-child case, said Capt. Steve Young, a Kansas City police spokesman.

“We want to know what they have to say on their own,” Young said.

The parents also have refused to allow police to have specially trained social workers reinterview their older children from previous relationships, boys ages 6 and 8 who were at the home when Lisa disappeared.

As a general rule, police do not interview children who are witnesses. Instead, they refer them to a child protection center, where social workers talk to the children. Police are not allowed in the room.

In the Irwin case, social workers talked to one boy for 30 minutes and the other boy for 50 minutes the day Lisa vanished. Police have not been able to send the boys back to the center.

Negotiations between lawyers and police on setting up witness interviews often result in interviews that are less than ideal for both sides, experts said.

Innocent parties may hesitate to be completely honest with police for fear that their statements may be used against them, defense lawyers said.

And with an attorney hovering in the interview room, the interrogation can be stilted and less spontaneous, former investigators said.

“It’s like having a filter between the detective and the person they want to talk to,” said Dave Bernard, a retired Kansas City police homicide detective. “You don’t get a true one-to-one conversation. You have to go through an attorney.”

That tension is a natural part of balancing the rights of those presumed innocent with the obligation of police to vigorously investigate crimes.

“There is a conflict between the role of the police to close a case and bring folks to justice and the rights of the innocent to avoid being railroaded,” said lawyer Dan Ross. “The legitimate purpose of an investigation can be met without threatening a client’s rights against self-incrimination.”

One condition that Short has set on the interviews is that two detectives who previously interviewed Bradley not sit in on any new sessions. That isn’t necessarily a deal-breaker, one former investigator noted.

Retired FBI agent Jeff Lanza said that fresh eyes and a new perspective might make an interview more productive.

“If she trusts someone and would rather speak with them, have at it,” Lanza said. “Let’s throw them in.”

Lanza said the only condition he would reject out of hand is a limitation on a necessary line of questioning.

“What the defense attorney and the couple has to realize is that they are viable suspects in the case,” Lanza said. “Even if they didn’t have anything to do with the disappearance, they are still suspects.”

Defense lawyer Pat Peters said that investigators could consider granting the couple so-called “use” immunity in future interviews. Under such immunity, the subject could not be prosecuted for anything she said during the session unless the investigators could support the charges with information “derived from a legitimate source wholly independent of” what she said during the interview, according to a 1972 Supreme Court ruling.

Without some kind of assurances, Peters said he’d be reluctant to advise Bradley and Irwin to speak with investigators again.

“You want to make sure it’s geared to finding your missing daughter and not so that you can be lambasted again,” Peters said.

But the use of such immunity is relatively rare in the state criminal justice system, Bernard said, and requires the support of prosecutors as well as police.

And investigators would be wary of using immunity unless they already had a clear idea of the subject’s role in the crime, Bernard said. If he was investigating a drive-by shooting, Bernard said he would want to know for certain whether the fellow he was investigating was the driver or the shooter.

“If you’re not sure, the guy could come up and say, ‘Hey, I’m the guy who pulled the trigger,’ and you can’t do anything with it,” Bernard said. “You must be sure about the exact role before you throw the immunity statute at it.”

Tip rate slows The investigation into Lisa Irwin’s disappearance entered its fourth week Tuesday.

So far, investigators have received 976 tips and cleared 793 of them. The rate of tips coming in has started to slow, Kansas City police said. Many calls now are from psychics or people offering suggestions for how police should conduct their investigation.