When pressed Thursday in a Johnson County courtroom about a controversial interview with now first-degree murder suspect Justin Marshall, an Iowa City police officer admitted making a “mistake.”
“How long did you interview Mr. Marshall before realizing a mistake had been made,” defense attorney Thomas Gaul asked officer Michael Smithey during a hearing on a motion to keep evidence obtained during the interview out of trial.
“Thirty-seven minutes,” Smithey answered about the period of time investigators interviewed Marshall before reading him his Miranda rights.
Smithey was interviewing Marshall on Oct. 12, 2009, along with an investigator from the Iowa Division of Criminal Investigation, about the 2009 shooting death of Iowa City landlord John Versypt, 64, of Cordova, Ill.
During Thursday’s hearing, Smithey testified that he was not the lead interviewer on Oct. 12 and he thought the other investigator might have waited to read Marshall his Miranda rights on purpose.
“I knew it hadn’t been done,” Smithey testified. “But I didn’t know if it was a calculated decision not to Mirandize or an oversight.”
During a break in the interview, Smithey said he raised the issue and the investigators decided to read Marshall his rights before continuing with questioning. Marshall kept talking with detectives but eventually evoked his right to remain silent, Gaul said.
“Do you believe that once someone invokes a right to remain silent, that all interrogation should cease?” Gaul asked Smithey.
“I believe I still have the right to talk,” Smithey said. “He is free to get up and leave.”
Gaul, who first raised concerns over the Oct. 12 interview just weeks before his client’s trial was supposed to begin on Sept. 17, told the judge on Thursday that he’s focusing on three aspects of the interview he wants to keep out of trial.
First is the portion conducted before Miranda rights were read; second is the portion done post-Miranda; third is the portion conducted after Marshall said, “I ain’t talking to you guys no more.”
Darrell Simmons, the special agent for the DCI who was involved in the controversial interview with Marshall, explained in court Tuesday that – at the time – Marshall was not a suspect in the case. Simmons said his supervisor asked him to re-interview Marshall for clarification.
“Marshall was a witness who had been in the building or near it at the time of the homicide, and they wanted us to re-interview him to clarify his location and the things he saw,” Simmons said.
Until Marshall started talking, Simmons said, there was no reason to read him his rights.
“We don’t typically Mirandize witnesses,” he said.
Judge Sean McPartland did not immediate rule on whether evidence from the interview will be allowed at Marshall’s trial, which is now set for Jan. 22.
Marshall, 21, was arrested in July 2011 on suspicion of first-degree murder in connection with the 2009 slaying. Charles Thompson, 20, was the first person arrested in the case and Courtney White, 24, also has been charged with first-degree murder in Versypt’s death.
All three men are accused of playing a role in the killing of Versypt on Oct. 8, 2009. Versypt, according to police, was a landlord for some units in the Broadway Condominiums in south Iowa City and was checking on those units when he was shot in the head and hand during a robbery attempt.
According to trial information, Thompson told police he knew Marshall and another man killed Versypt, and he admitted to helping Marshall dispose of the clothes he was wearing at the time of the shooting.
Thompson initially was charged with first-degree murder. But, in December, he pleaded guilty to a lesser charge of accessory after the fact following a mistrial in his case.
As part of his plea deal, Thompson, 20, agreed to testify against Marshall. The deal has Thompson remaining behind bars until after his sentencing, and he can’t be sentenced until after he’s fulfilled his part of the plea deal – to testify against Marshall.
Because Marshall’s trial was delayed, Thompson’s sentencing hearing also was postponed until Feb. 15, according to online court records.
White’s trial on Thursday was postponed from Jan. 8 to later this spring.
If convicted, both Marshall and White face mandatory life sentences in prison.Thompson’s lesser charge comes with a two-year prison term, but by the time he’s sentenced in February, he’ll have been in jail for three years. His attorneys said he’ll get credit for time served, meaning he probably won’t have to serve additional time behind bars after the sentencing.