As the severely-wounded severely wounded Addam Swapp lay in a hospital bed, he was denied his constitutional right to a lawyer; meanwhile, a plainclothes officer stayed with him, seeming to befriend him, and listened to his statements.
That was the contention of defense lawyer John Bucher in a U.S. District Court hearing Tuesday afternoon, during which Bucher sought to have the court throw out three types of statements Swapp made:Comments during the 13-day siege at the farm in Marion, Summit County.
Statements between the time he was captured on the morning of Jan. 28 and 5:01 p.m. that day, when he was given his formal Miranda warning about the right to remain silent and the right to have an attorney present.
Anything he said between the warning and the next morning, when he was finally allowed to consult lawyer Grant W.P. Morrison. This lawyer, who had done legal work earlier for Swapp, made repeated attempts to see him, starting at the University of Utah Medical Center at 11 a.m. on Jan. 28.
He was not let in to see Swapp until nearly 24 hours after the bloody end of the siege, the shootout in which Corrections Lt. Fred House was killed and Swapp was wounded.
U.S. District Court Chief Judge Bruce S. Jenkins ruled that the first type of statements may be used in the trial, noting that Bucher could point to no court decisions that such statements are not admissible. He reserved judgment on the other two categories.
After prosecutors and defense lawyers argued about the admissibility of Swapp's statements, Jenkins again closed the hearing to the public.
It continued until 5:35 p.m., and ended in secret. Prosecutors said a public session would begin Thursday morning.
Undisputed testimony established that although Swapp was wounded and captured about 9:30 a.m., special agents of the Alcohol, Tobacco and Firearms Bureau did not read him the Miranda warnings until 5:01 p.m.
That was just after he emerged from an operation on his wounds, and may still have been sedated. Swapp testified that when he got the warning, he understood it. But he said, "I was out of it."
Swapp said he did not realize that a woman he talked with all night at the hospital, Lynn Huffman, was a sheriff's department officer. She kept notes of Swapp's conversation.
Huffman testified she was asked to wear plain clothes to the hospital. She entered the the room at 9:30 p.m. wearing a sheriff's department jacket with a large star and a "Smoky-the-bear" type hat, which also had a star. But other than that, she wore civilian clothes.
She said Swapp volunteered statements during the night, but never at her instigation.
Morrison testified of his repeated attempts to speak with Swapp that day. He was denied access at the hospital by marshals who thought Swapp was not in good enough condition to see him. Morrison made repeated phone calls, getting transferred from one official to another.
Finally, about 24 hours after Swapp was shot, Morrison got an order from U.S. Magistrate Ronald N. Boyce that he be allowed to contact Swapp, and he was able to speak with him.
ATF Special Agent Felix G. Garcia testified that when he read Swapp his rights, "he was conscious, he was alert." But when he read information Swapp gave him, at least part of it apparently was wrong.
Assistant U.S. Attorney Richard Lambert asked whether Swapp said he wanted an attorney. Garcia said Swapp told him that he wouldn't answer questions until he could speak with a lawyer.
A vital part of the testimony concerned Swapp's mental condition whether he was fully aware that he was talking to officers and deliberately waiving his right to remain silent. Testimony established that he was periodically injected with pain-killing morphine.
Bucher said Swapp should have received the Miranda warning earlier than he did.
Even if the warning was made properly when it was, he said, "I don't believe he voluntarily relinquished his rights and gave his permission and allowed himself to speak freely with officers."