Questions about McClellan Interview. (Media/Law)

By Jones, Ken | St. Louis Journalism Review, March 2003 | Go to article overview

Questions about McClellan Interview. (Media/Law)


Jones, Ken, St. Louis Journalism Review


Even the most "obviously" guilty defendants proclaim their innocence throughout the course of a criminal case. That's why we have defense lawyers. That's why we have trials. That's why the state has to prove guilt beyond a reasonable doubt.

The system is not quite sure how to react, however, when the accused admits the crime in open court before talking to a lawyer. Do we take him at his word and lock him up--and even execute him if it's a first-degree murder case? Or, do we make him submit to the criminal process and require a trial or plea bargain?

That's the dilemma Tom Erbland presented to St. Louis County Judge Thea Sherry last month when he was arraigned on charges that he killed his wife, KMOX personality Nan Wyatt. Sherry quickly cut Erbland off as he attempted to confess. According to the St. Louis Post-Dispatch, Sherry told Erbland: "You have the right to remain silent. I want you to take advantage of that right. Sir, you have got to have a lawyer."

The biggest problem for the courts and prosecutors in this situation is that the conviction of a "defenseless" defendant could be reversed on appeal if the waiver of constitutional protections is not made knowingly.

Sherry was not the only person in a quandary about Erbland's case. So was Post columnist Bill McClellan, who was able to arrange an interview with Erbland immediately after the arraignment and wrote a gripping account of what amounted to a full confession by Erbland.

In a follow-up column two days, later, McClellan said that he "felt a flash of guilt" as he waited in the visitor's cubicle for the interview to begin. "Nan was my friend," he said. "Then I realized that this was exactly what she would have done."

McClellan told SJR that he has received both "positive and negative" comments about his interview.

"The positive people said it was a really interesting story," said McClellan.

"The negatives fell into two groups. One group thought I was taking advantage of a mentally fragile man. But I'm not a psychologist--it's not my position to try to decide his mental condition," said McClellan.

"The other group thought I was jeopardizing his case. But I'm not a defense attorney. It's not my job to advise him of his legal rights."

"Anyway," McClellan said, "he already confessed to police and he told the judge he didn't need a lawyer because he murdered his wife. I couldn't really jeopardize his case any further."

After McClellan's story, some criminal lawyers questioned whether the media should be given access to defendants prior to the retention of a lawyer. …

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