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In a rare move, the Texas Court of Criminal Appeals has reversed the conviction of a woman sentenced to die for a 1997 murder because a statement used against her at trial was taken by police without an attorney present after she invoked her right to counsel. “Once a suspect has invoked the right to counsel during questioning by law enforcement, the Fifth Amendment right to counsel has been invoked and interrogation by the police must cease until counsel is provided or the suspect reinitiates conversation,” Judge Cathy Cochran wrote for the majority in the 6-2 decision. The court ordered a new trial in McCarthy v. State. Kimberly L. McCarthy was convicted of capital murder in Dallas County’s 292nd District for the robbery and stabbing death of 71-year-old Dorothy Booth. In reversing McCarthy’s conviction, the CCA focused on the admission at trial of her statement to police. According to the Dec. 12 majority opinion, Lancaster, Tex., Police Sgt. Patrick Stallings arrested McCarthy three days after the murder and tried to question her but stopped the interview when she asked for an attorney. The opinion said that Dallas Police Detective Dwayne Bishop obtained a written statement from McCarthy about the murder after initiating a meeting with her several days later at the Lew Sterrett Justice Center in Dallas. Bishop told Stallings that he was going to the jail at the request of McCarthy’s husband, Cochran said in the opinion. The opinion also said Stallings testified under oath that he had informed Booth that McCarthy invoked her right to counsel, although the state argued that the detective didn’t know she had asked for an attorney. The state argued that the detective did not coerce or badger McCarthy to make a statement. Bishop testified that he read McCarthy her rights under Miranda v. Arizona and that she stated she understood her rights and wanted to continue talking without an attorney present. THE RULE But the CCA majority held that the questioning did not comply with the rule that the U.S. Supreme Court set in 1981′s Edwards v. Arizona, which bars police from reinitiating interrogation after a request for an attorney has been made unless the suspect has consulted with counsel. “ Edwards represents a bright and firm constitutional rule that applies to all suspects and all law enforcement officers,” Cochran said in the opinion. Douglas H. Parks, a Dallas solo who represented McCarthy at trial and on appeal, says he’s not surprised the CCA reversed the conviction. “I think they had to follow the law, and they did follow the law,” Parks says. “It was pretty clear it was an Edwards v. Arizona violation.” Cochran said in the majority opinion that the state offered “ample evidence” of McCarthy’s guilt from sources other than her statement, in which she alleged that two drug dealers robbed and murdered Booth after she got the elderly woman to open her door. The opinion said the evidence showed McCarthy had Booth’s car, tried to pawn her diamond ring and had a knife stained with the victim’s blood. However, Cochran said prosecutors relied on McCarthy’s statement “extensively” during the trial. Her opinion said the prosecution questioned McCarthy’s version of what happened but also used the statement to show that, if McCarthy was telling the truth, she knew the drug dealers planned to rob Booth and still remained at the scene of the crime. In a dissenting opinion, Presiding Judge Sharon Keller said McCarthy was not harmed by the statement and, in fact, fashioned her defense around it. Because the statement was admitted, the trial court included in the jury charge an instruction on duress, and defense counsel was able to argue that McCarthy was coerced into helping the drug dealers, Keller said. Judge Barbara Hervey joined Keller in the dissent. Judge Mike Keasler did not participate in the decision because the case was tried in his court, although visiting Judge Webb Biard of Paris presided at the trial. Dallas County District Attorney Bill Hill, speaking through a spokeswoman, says he does not feel comfortable making a comment on the case until he can discuss it with the prosecutor who tried it. The case was tried before Hill took office in 1999.

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