Copping an Attitude

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Withey added that he'd thought the infant was dead, but had tried to revive him by shaking him hard for about five minutes.

He agreed to take a lie-detector test; it showed he had answered deceptively on questions relevant to the child's injuries. Told of the results, the detectives again confronted Withey.

Whitson says she saw the polygraph operator's tape player still recording as she urged the suspect to tell the truth. Instead, Withey uttered the magic words, "Can I have a lawyer?"

What happened next, in the opinion of the Arizona Court of Appeals, earned Ed Withey a retrial.

According to case law, when someone invokes his constitutional right to seek counsel, "the police are required to cease all interrogation. . . . Interrogation includes not only express questioning, but also any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response."

Neither Whitson nor Clayton posed another question to Withey after Withey asked for an attorney. But the tape later revealed that Whitson continued to converse with the suspect for several seconds.

"You want to see a lawyer," Whitson told Withey. "That's fine."
"Yeah, because I'm telling the truth."
"No, you are not telling the truth."

Whitson then told Withey that the testimony of a pediatrician would "fry your ass" at trial.

Within a minute, the detectives silently walked Withey to a holding cell. Clayton left the station as Whitson completed paperwork at a desk near the cell.

About 15 minutes later, Withey later testified, he called to Whitson from his cell. "I asked her if I can talk to her a little bit more," he recalled. "She kind of ignored me."

Whitson says she finally asked Withey what he wanted.
"He says to me, 'You got me nailed, and I want to tell the truth,' or words to that effect, and I stop him right there. I buy time because I know there's going to be an issue here. I wanted someone else present. I take Withey to an interview room and tell him to think hard about what he wants to do."

Whitson called Clayton, who returned within minutes. In a taped interview, Clayton started by asking Withey, "You said you wanted a lawyer earlier. Are you willing to talk without a lawyer?"

"That's your desire, right? No one asked you to do that?"
Withey spun a horrifying tale.

"I got pissed off at him and I did smash him," he told the cops. "But he didn't hit no ground, he didn't get the knee. . . . I threw him as hard as I could on the bed. And I hit him three times with my hand. Open hand."

Withey demonstrated exactly what he meant with a karate-chop motion.
"I really didn't know what to do. I really kind of panicked. And I did rock the heck out of him. I shook him. . . . I'm so sorry. I really am. I'm sorry I lied to you about it."

Withey later wrote several letters to his girlfriend in which he also confessed to the crimes. Little Daniel, by the way, survived his severe beating, though it isn't certain how his recovery will progress. Doctors testified in 1994 that permanent brain damage was likely.

Eighteen months passed, and Ed Withey's case edged toward trial in September 1994. Shortly before jury selection, Maricopa County Superior Court Judge Robert Hertzberg held a hearing to discern whether Withey's post-Miranda admissions had been made voluntarily.

During the hearing, Withey's lawyer asked Whitson, "Would you recall if anyone said, be it you or Detective Clayton, something about 'frying your ass'? Was that said?"

"No," Whitson replied, echoing Clayton's testimony.
After testifying that day, Whitson says, she started to mull over the sequence of events in the polygrapher's office.

"I hadn't remembered the 'fry your ass' comment and neither had Clayton," Whitson recalls. "I'm from the South, and we fry everything--meat, vegetables, corn bread. It was a poor choice of words. But in my mind as I'm sittin' here right now, I had stopped any interrogation."

That night, Whitson and case prosecutor Jean Hoag listened, allegedly for the first time, to the tape recording that included the "fry your ass" comment.

The next morning, Hoag told Judge Hertzberg that Whitson had testified inaccurately. The judge, however, announced he still was going to rule that Withey's confession had been voluntary.

A jury convicted Withey of felony child abuse. Judge Hertzberg then sentenced Withey to 24 years in prison.

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Paul Rubin
Contact: Paul Rubin