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Judge considers motion to suppress statements in murder case

updated: 7/2/2013 9:37 AM

Mary R. Zumwalt Jophlin, 30, accused of murdering her daughter, sat in Franklin County court on July 1 awaiting the outcome of a motion to suppress hearing that started on June 28.
Her attorney, Terry M. Green, said the court should consider two statements made by his client as inadmissable under certain circumstances.
He said the defendant was in custody and the interviews with Jophlin lasted seven or eight hours.
Green said the issue becomes whether or not the statements she made were free and voluntary. He said he does not believe the statements made were given freely and voluntarily, rather under pressure from the officers who were conducting the interviews.
Green said Jophlin's Miranda rights were given but he does not believe his client understood those rights.
Referring to the first of two videos presented in court on Friday, Green said both West Frankfort Detective Ron Howard and then Police Chief Jeff Tharp played good cop, bad cop.
The defense attorney said during the first 15 minutes of the first video, Howard played 'good cop.' Green said the detective was giving who, what, when and where.
He said when Tharp started talking to Jophlin, she started crying at the way the questioning was going.
Green said the video shows Tharp getting out of his chair, getting into his client's face, holding a cell phone close to Jophlin's face and trying to get Jophlin to look at a photo of her deceased daughter.
Green questioned why Tharp would show the second photo he took instead of the first or third one. The defense attorney said Tharp showed her the second photo to "shock Mary into making a further statement."
Green said Tharp seized the moment to use the words "dead weight" that Jophlin had used to refer to her daughter Alexis "Lexi" Smothers, 8, who was found in the basement of a home at 1704 E. Oak St. in West Frankfort on July 19, 2011.
State's Attorney Evan Owens filed charges on July 21, 2011 that Jophlin reported Smothers was missing while knowing that she was lying dead in the basement.
Other charges allege that Jophlin concealed the homicidal death of her daughter and drowned her daughter with the use of her hands, water, another object, or a combination thereof, knowing such act created a strong probability of death or great bodily harm to Alexus Smothers.
Owens also charged Jophlin with one count of obstructing justice after she knowingly furnished false information to West Frankfort police officers A.J. Wilmore and John Prudent.
Green said the officers took on the persona of a child and used psychological pressure to make his client make or change her statements during the course of the two interviews.
The defense attorney said Howard took on the persona of 'bad cop' when he started tapping with a pencil in the direction of Jophlin as the three sat in the interview room of the West Frankfort Police Department. Green said Howard pointed his finger at Jophlin while tapping on the desk.
He said the officers used psychological pressure to get his client to change her statements.
Green said during the second video, after Jophlin had asked to speak with officers a second time, his client was attempting to make a statement when Tharp again approached her and tried to get her to look at the photo.
"He is picking up where he left off previously," Green said.
The defense attorney said under totality of circumstances, the first video shows that the police officers "crossed the line." Green said the officers took on the persona of 'bad cop.'
He said watching Tharp try to force Jophlin to look at the photo of her daughter reminds him of the movie Clockwork Orange in which a person is forced to watch a movie by taping his eyes open.
Green called the officer's actions as theatrics to try to get his client to make other statements and argued that the statements were not made freely and voluntarily due to the excessive force used by the officers.
State's Attorney Evan Owens argued that Jophlin did not execute her Miranda warnings, particularly the portion that tells an individual that anything they say may be used against he or she in a court of law.
"There is no way to hide the horrific evidence in this case," he said.
Owens said Jophlin entered the interview room with her purse and a drink and explained the events of the day leading up to the death of her daughter. He said Jophlin explained that she had gotten up, got dressed and went to work and did not show any emotion during the first portion of the first video.
Owens said the court had an opportunity to see that the story "doesn't jive with the physical evidence."
He said the physical evidence was tested by Detective Howard and Chief Tharp.
"Ms. Jophlin didn't ask for representation," Owens said. "She had her story contrived."
The state's attorney reviewed statements made by the defendant, saying maybe her younger sister had kidnapped Lexi or maybe one of two other people killed her daughter by smothering her with a pillow.
Owens said Jophlin told four different stories during the course of the two interviews. He said Jophlin was crying on the video, though the officers saw no tears.
Owens said after the first interview, the officers were "done." He said Jophlin asked to speak with officers a second time. "She comes back with more stories to tell them," he said.
Owens said the officers were within their right to show Jophlin physical evidence and to lie to her as part of the tactics used to get to the truth.
He said Jophlin made a confession that she had hid her daughter's body in the basement. He believes the defendant made the statements voluntarily.
Green said while it is true to some degree that officers use tactics to get to the truth, he believes excessive force was used in this case. He said he believes the statements should be suppressed.
Resident Judge Tom Tedeschi said he would take the matter under advisement and would issue a written ruling. He said he would be reviewing similar cases as both Owens and Green cited during their arguments.
Tedeschi set a pre-trial hearing date for July 18 at 1:30 p.m. He said he does not know if he will have a written ruling by that date but would do his best.