At­tor­ney says Frein should get new sen­tence hear­ing

The Republican Herald - - STATE - BY TER­RIE MOR­GAN-BESECKER STAFF WRITER con­tact the writer: tbesecker@timessham­rock.com; 570348-9137

An at­tor­ney for con­victed cop killer Eric Matthew Frein said he be­lieves Penn­syl­va­nia’s Supreme Court will agree state po­lice il­le­gally elicited a con­fes­sion from his client, but that may not be enough to win a new trial.

Wil­liam Ruzzo said the jus­tices fo­cused ques­tions at a hear­ing Thurs­day on whether in­ves­ti­ga­tors vi­o­lated Frein’s Mi­randa right to re­main silent when they in­ter­ro­gated him shortly af­ter his Oct. 30, 2014, ar­rest.

Frein, 35, of Canaden­sis, is seek­ing to over­turn his con­vic­tion and death sen­tence for the Sept. 12, 2014, sniper at­tack out­side the Bloom­ing Grove state po­lice bar­racks that killed Cpl. Bryon K. Dick­son II of Dun­more and se­ri­ously wounded Trooper Alex T. Dou­glass of Olyphant.

Ruzzo ac­knowl­edged Frein agreed to tell po­lice where he hid a ri­fle used in the at­tack but said Frein ad­vised po­lice he did not want to talk about any­thing else. De­spite that, they con­tin­ued to ques­tion him for three hours.

Speak­ing af­ter Thurs­day’s hear­ing in Har­ris­burg, Ruzzo said even if he wins on that is­sue, the jus­tices may find it was a harm­less er­ror that would not have changed the out­come of the trial be­cause there was other sig­nif­i­cant ev­i­dence that tied Frein to the crime.

Pike County Dis­trict At­tor­ney Ray Tonkin ar­gued the ques­tion­ing was proper. He agreed with Ruzzo that if the court finds oth­er­wise, the is­sue is un­likely to win Frein a new trial.

“The ev­i­dence in the case was over­whelm­ing,” Tonkin said fol­low­ing the hear­ing. “If the court de­ter­mined there was an er­ror, it would be harm­less.”

Ruzzo also ar­gued Frein was wrongly de­nied the right to speak to a de­fense at­tor­ney who came to the po­lice bar­racks af­ter the in­ter­ro­ga­tion be­gan. He also raised sev­eral issues re­gard­ing the death penalty phase.

Un­der state law, jurors weigh ag­gra­vat­ing cir­cum­stances, those that make a crime more heinous, against mit­i­gat­ing cir­cum­stances, those that lessen a de­fen­dant’s cul­pa­bil­ity. If the ag­gra­vat­ing out­weigh mit­i­gat­ing, the sen­tence is death.

Ruzzo ar­gued Frein should get a new death sen­tence hear­ing be­cause pros­e­cu­tors pre­sented too much emo­tional tes­ti­mony about the im­pact Dick­son’s death had on his fam­ily. That ev­i­dence “crossed the line,” Ruzzo said in a court fil­ing, and un­fairly swayed the jury against Frein.

The ev­i­dence in­cluded the tes­ti­mony of 10 wit­nesses, the dis­play of 32 pho­tos of Dick­son’s life and a 15-minute video of Dick­son’s grad­u­a­tion from the state po­lice academy.

Tonkin said he be­lieves the vic­tim im­pact state­ments are not an is­sue be­cause jurors were in­structed not to con­sider the state­ments un­less they found both ag­gra­vat­ing and mit­i­gat­ing cir­cum­stances ex­isted. In this case, they found no mit­i­gat­ing cir­cum­stances.

Ruzzo said he be­lieves he still has a ba­sis to ap­peal the is­sue be­cause the trial judge re­fused his re­quest to in­struct jurors that the mit­i­gat­ing ev­i­dence did not have to be an ex­cuse for the crime or have any nexus to it.

“I ar­gued the rea­son they didn’t find any mit­i­gat­ing cir­cum­stances was be­cause he would not give the in­struc­tion I asked for,” Ruzzo said.

Tonkin said he be­lieves the law is on his side re­gard­ing that mat­ter. He said he is con­fi­dent the death sen­tence will stand.

“We asked for full jus­tice at the be­gin­ning of this case and an­tic­i­pate the Supreme Court with up­hold the sen­tence of death is­sued by the jury,” he said.

Eric Frein, left, is es­corted out by po­lice af­ter his ar­raign­ment Oct. 31, 2014, at Pike County Court­house in Milford. AS­SO­cI­ATED PRESS

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