An attorney hired by Eric Frein’s family to represent the ambush suspect the night of his capture said Monday that police prevented him from seeing Frein and refused to tell his client a lawyer was available.
James Swetz, a veteran criminal defense attorney from eastern Pennsylvania, said he called ahead, then showed up at the Pennsylvania State Police barracks in Blooming Grove about 9:30 p.m. Oct. 30, some 3 1/2 hours after Frein’s arrest.
“I was told, ‘He’s an adult and has not asked for a lawyer,'” Swetz recounted.
Police interviewed Frein at the barracks. Authorities have not revealed what he told them. 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.
Under legal precedent, “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 has “created an unnecessary issue” by barring access to the suspect.
Frein is charged with opening fire outside the Blooming Grove barracks on Sept. 12, killing Cpl. Bryon Dickson and seriously wounding Trooper Alex Douglass. He led police on a tense 48-day manhunt through the northeastern Pennsylvania woods before U.S. marshals captured him outside an abandoned airplane hangar about 30 miles away 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 rights 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.