McCluskey, an escaped inmate from the Arizona state prison system, was arrested with his cousin and girlfriend Casslyn Mae Welch near Greer, Ariz., on Aug. 19, 2010, in the slaying near Santa Rosa of a vacationing Oklahoma couple, Gary and Linda Haas. He was in custody at the time FBI agents and a State Police officer approached him about an interview.
McCluskey told the first officer, “I don’t want to talk to nobody without a lawyer,” moments before speaking to him.
McCluskey’s attorneys Michael Burt and Teri Duncan in the federal death penalty prosecution had argued several grounds as a basis for suppressing incriminating statements McCluskey gave on Aug. 20 and Aug. 24, 2010.
U.S. District Judge Judith Herrera denied the request to toss the statements on grounds that the statements were coerced from McCluskey by manipulating his feelings for Welch or because his mental and physical condition made him vulnerable. Herrera agreed, however, that statements should be suppressed because law enforcement officers improperly interrogated him after he invoked his right to an attorney.
Since Herrera’s July 26 ruling, Duncan has asked the court to clarify whether it applies to both phases of trial — innocence/guilt phase and penalty phase — as the defense believes it should.
McCluskey’s attorneys learned since the judge filed her 42-page opinion that the prosecution “takes the position that statements obtained in violation of Miranda, while inadmissible in its case-in-chief … may nonetheless be admissible at the penalty phase should Mr. McCluskey be found guilty.”
McCluskey was questioned the day after his arrest by FBI Agent James Rominger, who was seeking to clarify the roles of McCluskey, Welch and Tracy Allen Province in the kidnapping of the Haases from an Interstate 40 rest stop. The couple were shot inside their travel trailer, which was then set on fire, and their pickup stolen.
McCluskey told Rominger, “Her (Welch’s) role was that she was irrelevant in New Mexico. That was all me,” according to court documents.
McCluskey went on to say, “I’m not too good right now. I’m kind — I’m kind of, maybe on another day. But right now I’m — I’m telling you right now, I’m not too good. In the head, OK?”
In that interview, McCluskey told the agent he had manipulated Welch into helping him escape from prison by telling her that he could not take any more time in prison.
The Aug. 24 interview, by FBI Agent Marcus McCaskill and State Police Agent Patrick Bucksath, took place after an apparent suicide attempt. McCluskey underwent a two-hour surgery, and was administered various drugs including morphine, before that questioning.
Trial is currently set for next March.
— This article appeared on page C1 of the Albuquerque Journal