The first death penalty case in years in Deschutes County may be in jeopardy of losing key evidence, and it’s because of one question from accused murderer Edwin Lara: “Is my lawyer almost here?”

The question came on July 26, 2016, as California Highway Patrol officers handed over Lara to the Tehama County Jail after they arrested him, and was at the heart of closing arguments of lengthy hearings this summer to decide what statements should be allowed at trial.

On Thursday, Lara’s defense team argued in Deschutes County Circuit Judge A. Michael Adler’s court that Lara asked the question of two veteran officers, and one responded: “No. It’s your right to request a lawyer. You can request a lawyer when you get a phone call.”

What Matt Szychulda, the officer who said that, didn’t know at the time was it would be more than 24 hours before Lara would get a phone call.

In the meantime, Lara would undergo a 6-hour interrogation without an attorney present, during which he gave a lengthy statement about the death of Kaylee Sawyer.

If Adler sides with the defense and throws out what Lara told officers in California, he will then have to decide whether evidence from those statements — which included the location of Sawyer’s body — should be admitted at trial.

Lara, 32, is accused of killing Sawyer, 23, in the early-morning hours of July 24, 2016, while he was working as a security guard for Central Oregon Community College in Bend. He is charged with four counts of aggravated murder, the only crime punishable by death in Oregon. Deschutes County District Attorney John Hummel is seeking the death penalty, and Lara is due to stand trial in October 2018.

Lara was arrested after allegedly going on a crime spree in California that included attempted murder, kidnapping and carjacking.

The hearings were originally scheduled to end Thursday, but ran long and should be finished Friday morning. The hearings began July 10 and ran through July 20 before pausing and picking back up Tuesday morning. Adler will then take the argument and testimony under advisement and issue a ruling at a later date.

Much of the weeks of testimony surrounded the conduct of the California Highway Patrol officers and the Tehama County Jail deputies.

“Tehama County Jail does not fare well in this hearing, your honor,” defense attorney Benjamin Kim said during his closing arguments. He attacked the testimony of the California officers.

While on the stand Tuesday, California Highway Patrol officer Joyce Dicharry, who was present when Lara asked if his lawyer was en route, testified that in California a defendant has to directly state “I want a lawyer” to invoke the constitutional right to representation. That is incorrect, Kim said, pointing out that the U.S. Constitution dictates what is and isn’t an invocation of a right to an attorney.

There are no specific words that must be said, though.

At the heart of the hearings is whether Lara’s statements regarding a lawyer were unequivocal — their meaning clear — or equivocal demands of his right, or that he wasn’t asking for anything at all. The defense argued that Lara clearly asked for a lawyer. However, if there is any doubt, police are constitutionally mandated to ask clarifying questions to ensure suspects understand their rights. The prosecution argued Lara wasn’t asking for a lawyer.

Lara allegedly made a second comment, asking a jail deputy when he would get a lawyer. The deputy — Scotty Kelley — testified he found the question to be procedural rather than an invocation, and told Lara he would get a lawyer when arraigned in court.

Kim began his closing arguments with an analogy: “Do you have a pen?” When technically parsed, the question means exactly that. However, Kim argued, the phrase is commonly used as a way to ask someone for a pen. Similarly, when Lara asked if a lawyer was on their way, he was not looking for a simple yes or no answer.

“Why would someone in Mr. Lara’s circumstance ask about a lawyer if not to speak with him?” Kim said.

Deschutes County Chief Deputy District Attorney Steve Gunnels countered, arguing in his closing statements that Lara was twice read his Miranda Rights. His statements about lawyers were ambiguous, and he was fully willing to talk to police during an interrogation. He gave less-damning admissions of guilt to a handful of people over the previous two days. When asked who he wanted to call after the interrogation, Lara said his wife, the news and a pastor, not a lawyer.

“It’s important to take those words, ‘My lawyer almost here yet’ not entirely out of context,” Gunnels argued.

Kim shot back, pointing out when Lara did finally get a phone call, he called his wife and begged her to help him get an attorney. Kim said while both statements about a lawyer were not as direct as they could be, it doesn’t make sense that Lara would repeatedly ask about lawyers and at the same time have no interest in talking with one. Lara’s intent was obvious, he said.

Lara told detectives where Sawyer’s body was, and the defense has argued that police would not have found the body in the same state if it weren’t for Lara’s help during an improper confession, according to testimony during the hearings. Much testimony has been devoted to the decaying state of Sawyer’s remains, which were being broken down by insects and heat.

The prosecution has argued that since the body was just over the shoulder of state Highway 126 between Redmond and Sisters, it would have been discovered around the same time anyway, and therefore evidence from the body should be allowed at trial.

Thursday’s proceedings started with Adler ruling on a motion the defense filed, saying Hummel three times violated the gag order imposed on the case, prohibiting any statements made outside of court. Adler found Hummel, in giving information to Sawyer’s family about the case, did not violate the gag order. Adler had previously stated in court that Hummel was allowed to do so.

­—Reporter: 5641-383-0376, awieber@bendbulletin.com

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