Waller case: Law affects when word 'suspect' gets used

Thursday, August 25, 2011
Clay Waller, center, is escorted to a police vehicle after a court hearing at the Cape Girardeau County Courthouse in Jackson on Tuesday, Aug. 23, 2011, where he appeared on charges of stealing and harassment. Waller's bond was reduced from a $65,000 cash-only bond to a $27,000 surety bond. (Kristin Eberts)

Ask Morley Swingle the difference between a person of interest and a suspect, and the Cape Girardeau County prosecuting attorney recalls the story of Richard Jewell.

Jewell was the security guard wrongly accused and later cleared of setting off a deadly bomb at Atlanta's Centennial Olympic Park during the 1996 Olympics. Jewell, who died in 2007, became the poster child of the wrongly accused.

Law enforcement and various media outlets named Jewell as a suspect, though the Justice Department later said Jewell had nothing to do with the attack.

"He sued, and he got over $1 million," Swingle said Wednesday. "So I train local law enforcement, and I do this a lot, never to call someone a suspect."

The debate about the terms for someone who may be suspected of a crime has surfaced locally in the high-profile case of Jacque Waller, the 39-year-old woman who hasn't been seen since June 1.

Until Tuesday, her husband, Clay, had only been identified by investigators as a person of interest. Authorities went to great pains not to use the word "suspect," even though they have said they suspect foul play and have said for weeks that they believe Jacque is dead.

Then, on Tuesday, Clay Waller was standing in front of a judge for an appearance on stealing and harassment charges that had kept him behind bars since late July. His lawyer, Scott Reynolds, made a motion to have his $65,000 cash-only bond reduced.

One of Swingle's assistant prosecutors, Angel Woodruff, tried to convince a judge that Clay Waller was a flight risk and, for the first time publicly, the word "suspect" was used by an official when describing Clay Waller's status in the Jacque Waller investigation.

So what is he -- a person of interest or a suspect? And what's the difference? According to Swingle, it depends who you ask and where you ask them.

"It's a matter of law," Swingle said. "Police officers don't have immunity from lawsuits. But in open court, prosecutors have complete immunity, so you can tell the truth without worrying about being sued. Prosecutors can be totally candid and tell the truth."

Prosecutors have long been shielded from lawsuits by people, even those who have been wrongly convicted. The U.S. Supreme Court has ruled that "absolute immunity" is needed so that prosecutors can do their jobs without fear of legal retaliation.

"On the other hand, I have to watch what I say when I'm talking to a reporter on the courthouse steps," Swingle said. "So we have to use an extra level of caution in what we say to the media and not say a person has committed a crime."

Still, despite what was said in court, Swingle would not say to a reporter Wednesday that Waller is a suspect.

The public doesn't see much difference anyway, according to William Schroeder, a law professor at Southern Illinois University in Carbondale. When they hear "person of interest," they assume the person is a suspect, he said.

"I guess any of us would infer that," Schroeder said. "In court, a lawyer can say whatever they think. It has to be that way or they couldn't successfully try cases."

But the phrase "person of interest" is a bit more cautious, he said, and is likely meant to be more neutral and a lot less loaded.

"When you call someone a suspect, you're putting all your cards on the table," Schroeder said. "If you call someone a suspect and they didn't do it, it could be a reckless opinion without any basis in reality. A person of interest? That really means nothing."

'Matter of semantics'

As for Clay Waller's side, Reynolds said that when it comes to his client, what he is considered is largely irrelevant. It doesn't change anything as it relates to the investigation or his client.

"I think it's a matter of semantics," Reynolds said. "Legally speaking, it shows they are more focused on my client and less likely to look at other angles, which could be damaging to their case at some point."

After Judge Scott Thomsen reduced Clay Waller's cash-only bond of $65,000 to a surety bond of $27,000, Reynolds worried that more charges would be brought against his client in an attempt to keep him in jail. Clay Waller had yet to make bail at 10 p.m. Wednesday.

Woodruff said in court Tuesday that Clay Waller has made threats against potential witnesses in the Jacque Waller case. All Swingle would say Wednesday was that there are other investigations into Clay Waller that have not been brought to his office yet for charges. Swingle did use the phrase "not yet" when asked about the charges.

Reynolds expressed exasperation at that news Wednesday.

"I hope they would file anything with some restraint," Reynolds said. "They need to look at each individual case without considering who it is. In other words, if they have a case they wouldn't file against you or me, they shouldn't file it simply because it's Clay Waller. You can't file charges against somebody because he's the suspect in another case."

smoyers@semissourian.com

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