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Cobb County prosecutors lost important evidence against a murder suspect on Monday when the Georgia Supreme Court threw out incriminating statements the suspect made during questioning by Smyrna, Ga., police detectives. The unanimous court found the statements inadmissible because suspect Howard McDougal had not waived his rights to remain silent and consult an attorney, despite the detectives’ efforts to get him to sign a form indicating he was waiving those rights. Ronald L. Carlson, who teaches criminal procedure at the University of Georgia School of Law, said the decision was an important step in the court’s continual refinement of the law surrounding the U.S. Supreme Court’s landmark 1966 decision of Miranda v. Arizona, 384 U.S. 436. McDougal’s case, he noted, showed law enforcement agencies that rights have to be read earlier in the process than some police agencies required, that a suspect’s desire to call his wife so she could contact an attorney constituted a request for an attorney, and that custody “does not depend on a formal arrest.” Monday’s decision also illustrated the tension that can build between investigators and suspects during interrogations. At one point, according to the court’s review of the tape-recorded interrogation, a detective read McDougal his Miranda rights and insisted, “Now understand your rights. Waive your rights. And tell us about whoever killed — you know who killed that poor son-of-a-bitch.” McDougal eventually admitted being involved in the crime and having tossed the gun into a nearby dumpster. But he identified Allan Martez Johnson as the shooter. Johnson subsequently claimed that McDougal was the shooter. Both men were charged with the store clerk’s murder, but prosecutors say that McDougal fired the fatal shot and that they will seek the death penalty if he is convicted. PHYSICAL EVIDENCE REMAINS Cobb District Attorney Patrick H. Head said the case against McDougal will go on without the suppressed statements, because physical and circumstantial evidence remains intact. “We never try a case based solely on a statement by a defendant,” Head said. Asked about the detective’s apparent demand that McDougal waive his rights, Head suggested the statements were actually questions — as in “Do you understand your rights?” and “Do you waive your rights?” Head said the Smyrna detective who made the statement, Capt. Jerry W. Waldrop, was a veteran officer who knows not to order a suspect to waive his rights. Waldrop, who’s been with the force since 1980 and a detective since 1999, said, “We weren’t forcing [McDougal] to do anything.” But he added, “It’s not a perfect world,” and sometimes people make mistakes. “We’ve got other witnesses,” he said, who will prove McDougal’s guilt. Marietta, Ga., sole practitioner Mitchell D. Durham said the decision “certainly helps” his client’s case. He said it also helps clarify when suspects believe they are in custody — a key legal point, according to the decision by Presiding Justice Leah Ward Sears. In her opinion, Sears wrote, “The police must advise a suspect in custody of his Miranda rights before interrogation; otherwise, the suspect’s ensuing statement is generally inadmissible.” SUSPECT AGREED TO TALK — AT FIRST The May 9, 2000, questioning started voluntarily, with McDougal agreeing to speak with detectives at the police station around 1 p.m. But the detectives reminded McDougal, a convicted felon, that he could be arrested for possessing a gun. Later they said McDougal would not be released in time to make a 2 p.m. appointment elsewhere. “Viewed objectively,” Sears wrote, “a reasonable person in McDougal’s situation would have believed his freedom had been restrained so as to render him in the custody of police.” Thus, she added, whatever McDougal said before being read his rights was inadmissible. Once the police read McDougal his rights, they asked him to sign a waiver so they could continue the conversation. But McDougal asked if he could telephone his wife, who would then contact his lawyer. “I feel like the words that I’m saying are like being pushed against me right now,” McDougal told police, according to the decision. Because McDougal was not allowed to call his wife and questioning continued, Sears wrote, “his ensuing statements are inadmissible and must be suppressed.” Durham, McDougal’s lawyer, said he was pleased particularly with the court’s decision holding inadmissible McDougal’s statements made 90 minutes after his initial conversation with police, when he asked to speak to the detectives again. Before McDougal had a chance to say why he wanted to speak to them, they began interrogating him. In his responses, he admitted being involved in the robbery that preceded the murder. But Sears wrote that there was no indication McDougal waived his previously invoked right to counsel or even that he intended to discuss the case. She suggested McDougal might have wanted to know when he could call his wife or attorney. “We are compelled to conclude that this statement did not result from McDougal reinitiating the conversation and waiving his right to counsel,” Sears wrote. The court did allow a statement McDougal made 10 days later to be admitted. On May 19, 2000, McDougal summoned detectives to his jail cell to complain that Johnson, the alleged co-conspirator, was telling other inmates that McDougal was the shooter. When one detective said they had another witness who could testify against McDougal, McDougal said, “I didn’t see nobody there.” That statement placing him at the scene of the crime was admissible, Sears wrote, because McDougal initiated the discussion about the case. “There were no threats or promises made; the detectives simply asked McDougal why he had asked to see them,” Sears concluded. McDougal v. State, No. S03A1475 (Sup. Ct. Ga., Jan. 12, 2004).

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