JUDGE TO RULE ON DIEHL'S `DISTRAUGHT' CONFESSION

Date: 1987-03-04

Richmond Times-Dispatch

Michael Diehl says he was so distraught as his son lay brain dead that he could not understand his right to remain silent when questioned by police.

Virginia Beach Circuit Judge Alan E. Rosenblatt was to rule whether Diehl, 41, was tricked or forced into making a videotaped statement to authorities and whether the tape should be admitted as evidence in Diehl's murder trial this spring.

Diehl and his wife, Karen, 36, who lived with their 17 children in a 35- foot converted school bus, are charged with child neglect, abduction, malicious wounding and murder in the death of their 13-year-old adopted son, Dominick J. "Andrew" Diehl. The boy collapsed on the bus Oct. 24 and died in Virginia Beach General Hospital five days later.

Defense attorney Paul E. Sutton II asked Diehl at a preliminary hearing yesterday to describe his emotional state the day an ambulance rushed him and Andrew to the hospital.

"I was very anxious, nervous. I guess you could say distraught would be a good term," said Diehl.

Prosecutors have maintained that Diehl was a free man between 1 p.m., when Andrew was taken to the hospital and the questioning began, and about 8 p.m., when Diehl was arrested and read his rights.

Diehl painted a different picture.

He testified that he was detained and questioned by police for seven hours before he was read his rights. He spent hours in a small waiting room at the hospital as a detective repeatedly came in, asked questions and left to check the boy's condition, Diehl said.

Diehl said he then rode with that detective to police headquarters, expecting to be reunited with his family. At police headquarters, police interrogated Diehl from 6 to 10 p.m., reading him his rights about midway through the videotaped questioning.

"One of the detectives, I don't remember which one, said it would be in my best interests to answer their questions," Diehl testified.

"The fact that he was a police officer questioning me, I assumed that I had to answer his questions."

Diehl said he did not pay full attention when asked to sign the statement that he had been informed of his rights.

Assistant Commonwealth's Attorney Kenneth A. Phillips reminded Diehl that he was a college graduate. The prosecutor reviewed Diehl's rights one by one and each time Diehl agreed that he knew his rights at the time.

"That's what they told me," he said, "I understood the words."

He added, "I understand it a lot more now. . . . The only problem I had was my comprehension of it -- the total ramifications of what they really meant. I did not have full comprehension of what I was doing."

"You mean you agree," Phillips said, "that looking at it now, you should have kept your mouth shut?"

"I know it would have been better if I had kept my mouth shut," Diehl said.

The first half of the videotape was shown in court yesterday. On the tape, Diehl said Andrew stole food and defecated and urinated on family belongings.

He said discipline of the boy was meant to be a sign of love, and the discipline included administering more than 100 swats at a time with a thick stick and shackling him with ropes and handcuffs to the floor of the bus at night.

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