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Lawyers: Kerrigan was too drunk to waive rights

By Denise Lavoie

Associated Press

Published: Thursday, Feb. 17 2011 3:05 p.m. MST

WOBURN, Mass. — The brother of Olympic skater Nancy Kerrigan said he "grabbed his father by the throat" before he died, a police officer testified Thursday, but defense lawyers want such evidence barred from trial, saying he was too drunk to voluntarily waive his right to remain silent.

Daniel Kerrigan, 70, died in January 2010 following an altercation with son Mark Kerrigan at the family's Stoneham home.

Prosecutors charged Mark Kerrigan with manslaughter. The Kerrigan family says Daniel Kerrigan died from a longstanding heart condition and maintains that Mark Kerrigan was not responsible.

On Thursday, a judge began a two-day hearing on a motion from Kerrigan's lawyers to throw out statements he made to police at his home and at the Stoneham police station.

Kerrigan's defense team claims that Kerrigan, 46, was so drunk that he did not knowingly waive his Miranda rights, including his right to remain silent. His lawyers also say that police persisted in questioning Kerrigan even after he made it clear that he did not want to talk to them.

Prosecutors called two Stoneham police officers to testify about Mark Kerrigan's behavior the night his father died. Both said Kerrigan was belligerent, appeared to be intoxicated and resisted their attempts to put handcuffs on him. They also said they had to carry Kerrigan from the basement of the family's home, up the stairs and outside to a police cruiser.

"He said he would not walk, 'you're going to have to carry me,'" said Officer Kenneth Douglas Bowdidge.

Bowdidge said he read Kerrigan his Miranda rights at his home, and Kerrigan responded, "Yeah, whatever."

Kerrigan initially said he did not want to talk to police, Bowdidge said, but "approximately 30 seconds later, he said he wanted to speak to us."

Bowdidge said Kerrigan then told them he and his father had gotten into an argument about use of the family telephone. Kerrigan said he "grabbed his father by the throat and his father fell to the floor," Bowdidge said.

"He also said that he thought his father was faking it," Bowdidge said.

Sgt. David Thistle testified that Kerrigan was taken to a hospital after vomiting in his cell. About 12 hours later, when Kerrigan was back at the police station, Thistle said he read him his Miranda rights.

"He said, 'I don't have to say anything, right?'" Thistle testified.

Thistle said Kerrigan refused to sign a Miranda waiver card.

State police trooper Kevin Murphy said he spoke with Kerrigan after Thistle booked him on assault and battery charges.

Murphy said that when he asked Kerrigan if he wanted to talk about the "incident," Kerrigan responded: "Which one? Is it the incident where my father tried to throw me down the stairs?"

Murphy said Kerrigan then said, "I don't want to talk to you."

Murphy said he then told Kerrigan that his father had died. Kerrigan then said, "So what does that mean? You're going to charge me with manslaughter?" Murphy testified.

During cross-examination by defense attorney Hank Brennan, Murphy acknowledged that if he had known that Kerrigan had told Thistle he did not wish to talk to police, he would not have gone to his cell to talk to him.

Murphy said he was not questioning Kerrigan when he went to his cell, but simply told him he could speak to police if he wished.

The hearing was scheduled to resume Friday.

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