DIEHL SAYS MURDER CONVICTION WAS IMPROPER, ASKS REVERSAL

Date: 1989-03-09

Richmond Times-Dispatch

Michael Diehl should not have been convicted of abduction and subsequently of first-degree murder because parents are exempted from Virginia's abduction law, according to his attorney.

The point is one of several that attorney Paul Sutton II has raised to a three-judge panel of the Virginia Court of Appeals, but it is the element Sutton believes carries the best chance of overturning Diehl's convictions in the beating death of his 13-year-old adopted son, Dominick "Andrew" Diehl.

A conviction of first-degree murder requires conviction on a specific underlying felony, including abduction. If Diehl had not been convicted of abduction, the Virginia Beach Circuit Court jury could not have found him guilty of first-degree murder.

The issue also is significant because no parent has been convicted under Virginia law of abducting his child.

"There is none in the whole country," Sutton said yesterday, except for an instance in Kansas that arose from a rape case.

The abduction statute says parents are legally justified in detaining or restraining their children, Sutton contended.

"There's no question that parents are legally justified . . . in reasonably detaining their children," said Assistant Attorney General David Rosenberg, who challenged the appeal at a hearing earlier this week. But case law has established that punishment meted out by parents cannot be excessive or unreasonable, Rosenberg added.

Diehl was convicted in 1987 with his wife, Karen. He is serving a 41-year term, she a 31-year sentence. The couple were arrested in 1986 while living in a Virginia Beach campground in a converted school bus with their 16 other children, 12 of whom were adopted.

In addition to the abduction and first-degree murder counts, Michael Diehl was convicted of child neglect and assault and battery. Karen Diehl was convicted of involuntary manslaughter, abduction, child neglect and assault and battery.

Sutton also has urged the court to overturn Michael Diehl's convictions on the grounds that:

* Cameras in the courtroom violated his cilent's equal protection rights, an issue likely to be decided only by the 4th U.S. Circuit Court of Appeals or the U.S. Supreme Court.

* A grand juror was biased against his client.

* A photograph of the dead child taken at the time of autopsy was legally irrelevant.

Mrs. Diehl is appealing on similar grounds.

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