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Alleged second murder confession inadmissible

Filan: Set back in John Couey prosecution should not affect final outcome

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Susan Filan
Senior legal analyst

A Florida judge ruled this morning that John Couey’s second confession to the murder of a 9-year-old girl is inadmissible in court because it was obtained illegally. This does not come as a surprise, but it is the second setback to the prosecution’s death penalty case against Couey, charged with the murder of Jessica Lunsford.  

The court already tossed out Couey’s horrifying confession in which he admitted to Orlando police that he sexually assaulted Jessica Lunsford. He told police that Jessica knew that her parents and police were out looking for her.   In fact, she saw the search for her on television. He then buried her alive by stuffing her inside a plastic bag. She suffocated. 

In Couey’s own words, “she suffered.”

The reason the court ruled Couey’s confession inadmissible was because his constitutional rights to counsel were violated. Couey had told police he wanted a lawyer and wanted questioning to stop. In general, this is a well settled area of law and it is a brightline rule.  

Once you ask for counsel, or “lawyer up,” it is game over. No more questioning. Of course, had Couey had a lawyer present, it is hard to imagine he would have confessed. That is why police prefer suspects to waive their right to counsel. But a waiver has to be “knowing, intelligent and voluntary.”  

In other words, police cannot trick you or coerce you into waiving your right. Still it is possible that Couey could have ignored the advice of his counsel and spilled his guts anyway. Let’s face it: A lot of people don’t follow their lawyers’ advice. But without his lawyer present, once he asked for a lawyer, anything he says after he invokes his right to counsel will be suppressed. 

At issue in today’s ruling is yet another statement Couey made to Orlando police. Police contacted Couey again for questioning while he was in prison at the Citrus County jail, after his defense attorney had filed papers with the court saying no one could talk to his client unless his attorney was present.  

Police wanted to question Couey about what he might know about an unrelated case involving the unsolved murder of yet another young girl. Police claim that the jail never informed them that Couey had counsel or that he had invoked his right to counsel. After Couey answered their questions, he blurted out incriminating statements about the Lunsford case. And the question is, can those statements come in? 

The answer is no. 

Police questioned Couey without his lawyer present. Even though the prosecution argued that because police questioned Couey about another case, in which he did not have counsel, he was fair game. And further, because the police did not ask Couey anything about the Lunsford case, and he just talked about it anyway, his statements were made voluntarily and are therefore admissible.  

The judge disagreed.

At the hearing on Friday, the judge questioned the detectives. He basically elicited from the detectives’ testimony that they had never before questioned a person with pending charges at the jail because they had lawyers. In this case, detectives never tried to find out whether Couey had counsel. Yet they had never questioned a person after they had been arrested before.

The judge queried, “Why is it okay to do it here?”  Obviously, it is not. 

The judge did not buy the prosecution’s argument, and the statement was suppressed.  The court held that “cases involving the death penalty require the closest judicial scrutiny.”

Still, even without either confession, the case is still very strong and it is highly likely, assuming all goes well at trial and the state’s evidence is properly admitted at trial before the jury, that Couey will be convicted and sentenced to death.

Jessica Lunsford’s blood is on his mattress. His semen and her fingerprints are on glass in his house. It is believed he cut a screen to enter her house and went in and took her out.   Jessica’s family will testify Jessica would have never left the house on her own, nor would she have ever entered Couey’s voluntarily.

Plus, if prior similar evidence is admissible at trial, the jurors will learn that Couey cut a screen to enter a woman’s home, immobilized her, placed his hand over her mouth and assaulted her.

While it is truly unfortunate his confession had to be thrown out, and his second statement had to be tossed, too, Couey is not likely to get away with murder.

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