Appeals Court says Chism interview can be made public

File photo

Philip Chism

DANVERS — Philip Chism had the presence of mind to tell investigators that Colleen Ritzer was responsible for her own death, a prosecutor argued Tuesday. 

“He leaves out important details. He disparages the victim and claims she did something to bring about her own death in a bizarre way,” prosecutor Kate MacDougall argued during closing arguments on a motion to suppress statements and other evidence in the case.

Lawyers for Chism, who was 14 at the time of Ritzer’s death, are raising a number of issues they say should prevent the state from using anything said by Chism or anything confiscated by police after he was found walking along Route 1 in Topsfield in the early morning hours of Oct. 23, 2013.

Both Chism, of Danvers, and Ritzer, 24, of Andover, had been reported missing by their families hours earlier. 

Chism’s attorneys, Denise Regan, Susan Oker and John Osler, suggest that police actually already knew Ritzer was dead when they encountered Chism walking along Route 1, and that they had no legal justification to stop him, much less pat-frisk him and go through the backpack he was carrying. 

The evidence found, including his statements to Topsfield and later Danvers and state police, the defense contends, were the “fruit of a poisonous tree,” because, they argue, police violated his Fourth Amendment rights by detaining him, a detention that began the moment police put on the flashing blue lights of their cruisers. 

“I think the flashing lights constitute a stop,” said Osler, who argued that police would inevitably been able to catch up with Chism later if they found other evidence he was involved in Ritzer’s disappearance and death. 

But police and prosecutors say that until they found Ritzer’s body, they did not know if she was dead or alive — and had no reason to suspect Chism until they came across surveillance video showing him entering the Danvers High School bathroom shortly after Ritzer on the afternoon of Oct. 22. That was well after he had been found in Topsfield, they say. 

And they would have had no choice, under their roles as community caretakers, but to approach Chism as the teenager walked alone on a dark and narrow stretch of Route 1 in Topsfield in the middle of the night, argued MacDougall.

The defense claim that police had already targeted Chism as a suspect when they found him “doesn’t make sense,” argued MacDougall. “What makes sense is in their role of community caretaking, stopping and checking on someone walking on Route 1 because it’s a bad time of night.”  

It appears Salem Superior Court Judge David Lowy may not have an issue with that decision either.

“It would be poor police work indeed,” suggested the judge, if police just sent Chism on his way, as the defense suggests they should have. “They can’t let this person continue to walk down the street.”

And MacDougall argued that the evidence other officers had at the time wouldn’t have led to the conclusion Ritzer was dead.

“They only had bits and pieces,” said MacDougall. “A very small quantity of blood in the bathroom. They had blood in recycling barrel that suggested she could be badly hurt ... they had no reason to believe this was as bad as it was.” 

And as for the lights on the cruisers, both the prosecutor and judge suggested that it was simply a matter of public safety, as they encountered Chism past the crest of one of Topsfield’s hills, invisible to oncoming drivers. 

Also among the issues raised by the defense: whether Chism understood and was fully capable of voluntarily waiving his right to remain silent. 

That’s the issue MacDougall was addressing when she described Chism’s demeanor and some of what he said in a recorded interview with police. That interview remains under seal while Chism’s attorneys appeal Lowy’s denial of their motion to keep it impounded until the trial. 

But a few details emerged both through the judge and MacDougall during the two-hour hearing. 

Lowy said he’s viewed the recording repeated times and took notes on Chism’s inflection, manner, and the statements he made, “too many examples to list,” he said during a back-and-forth with the defense. 

And Chism was also aware of his mother’s presence in the room, said the prosecutor. “From the minute they walked into the interview ... he won’t look at her, he’s dismissive of her,” said MacDougall. 

As for whether her statement about wanting a lawyer for Chism required police to stop and get a lawyer, MacDougall cited cases that suggest that a 14-year-old is capable of making his own decision on a lawyer.

The judge said that even if there is found to be an issue with the timing of Chism being read his rights, he could find instead that Chism fully understood what he was doing, given his “thoroughness, his decision not to disclose all of the information, his calmness, how at certain points in time his inflection (in his voice) rises,” said the judge. “Why isn’t the statement voluntary?” he asked. 

“I think it would be a mistake,” argued Osler. “He’s a very polite young man and he is very compliant to authority.” 

And since police continued their questioning even after Chism’s mother asked for a lawyer, and then questioned him after he indicated he didn’t want to answer questions told him that police were going to do what they wanted, Osler suggested. 

Osler pointed to the testimony of a defense expert last month who suggested teenagers are susceptible to negative feedback. 

“It’s a lesson in how to do what you’re told by authority, that’s what it is,” said Osler. 

But Chism was far from compliant, argued MacDougall, pointing to segments of the interview where he corrected the officers. For example when he explained that it was he who went into the girls’ bathroom, not a second suspect, but that he looked different because he was wearing a balaclava. 

“He clarifies things,” said MacDougall. “He’s careful as to his description of the murder, which bears no resemblance to reality, that minimized how many times he stabs her, that minimizes the nature of the sexual assault. He knows they haven’t found her.”

And he explained why he’d done what he did, said the prosecutor. “He wanted to go to juvie, he wanted to escape. He had a purpose.” 

The judge asked both sides to file briefs in the case and will hear further argument on Feb. 24 before issuing a ruling. 

Courts reporter Julie Manganis can be reached at 978-338-2521, via email at jmanganis@salemnews.com or on Twitter @SNJulieManganis.

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