Police refused to tell the ambush suspect who eluded capture in the Pennsylvania woods for 48 days that his family hired an attorney for him the night he was captured, the lawyer said Monday.
James Swetz, a veteran criminal defense attorney from eastern Pennsylvania, said he called ahead, then showed up at the State Police barracks in Blooming Grove about 9:30 p.m. Oct. 30, some 3 1/2 hours after Eric Frein's arrest. He said he was prevented from seeing his client.
"I was told, 'He's an adult and has not asked for a lawyer,'" Swetz recounted.
Authorities have not revealed what Frein, who is charged with killing one state trooper and seriously injuring another, told them in an interview at the barracks beyond the fact that he had used Wi-Fi hotspots to connect to the Internet while he was evading law enforcement. His public defenders could try to get statements Frein made to police ruled inadmissible at trial, though U.S. and Pennsylvania Supreme Court decisions could make that difficult.
"The police have no affirmative duty under the Fifth Amendment to notify a person being interviewed that an attorney is seeking to speak with them," Pike County District Attorney Ray Tonkin, who is seeking the death penalty against Frein, said via email Monday.
Swetz, whose involvement in the case was limited to making sure Frein was represented early after his arrest, said in an email the state "created an unnecessary issue" by having barred access to the suspect.
Frein is charged with opening fire outside the Blooming Grove barracks Sept. 12, killing Cpl. Bryon Dickson and seriously wounding Trooper Alex Douglass. He led police on a tense manhunt through the northeastern Pennsylvania woods before U.S. marshals captured him outside an abandoned airplane hangar about 30 miles from the shooting scene.
Swetz said he tried to see Frein at the barracks later that evening.
"I called and invoked his right to counsel and was told I would not be given access to Eric, and Eric would not be told counsel was retained and available to him," Swetz said.
Swetz spent about two hours at the barracks, then left.
He wound up meeting with Frein at the Pike County prison the following day, long after Frein had talked to the police. Frein then signed paperwork indicating he did not want to be questioned without his lawyers, Swetz said.
The Pike County public defender's office, which took over Frein's defense, declined comment Monday on any aspect of the case, including whether it would challenge the admissibility of Frein's statements to police.
The U.S. Supreme Court ruled for the police in a 1986 case in which investigators failed to tell a murder suspect who had waived his constitutional right to remain silent that his sister had contacted a public defender to represent him. The Pennsylvania Supreme Court ruled similarly in a 1999 case.
"Some states have said that this is a problematic thing, but Pennsylvania is not one of those states," said Duquesne University law professor Wes Oliver.
State courts in Pennsylvania have not entirely closed the door to such a challenge, "assuming the facts supported it," said David Sonenshein, a Temple University law professor. "And that's the most we can say now, because we don't know exactly what happened in this case."
Even if Frein's statements to police are challenged, authorities have said they gathered plenty of physical evidence tying him to the crime, including spent shell casings in his vehicle that matched those found at the crime scene.
Frein is being held without bail. He has not yet entered a plea.
Separately, state police announced Monday that the Blooming Grove barracks will reopen to the public on Wednesday, exactly two months after the ambush.