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The case against charging Couey's housemates

Editor's note: This guest column by State Attorney Brad King is in response to criticism his office has received for not pursuing charges against three housemates of John Couey, who has been charged in the abduction, sexual assault and murder of Jessica Lunsford.

By BRAD KING
Published June 26, 2005


As state attorney, I have more facts at my disposal than are known to the public or to the media and this knowledge resulted in my decision not to charge Dorothy Marie Dixon, John Couey's sister; her boyfriend, Matthew Dittrich; or Maddie Secord, Couey's niece.

There have been many misunderstandings of the circumstances surrounding my decision arising from incomplete knowledge of the facts surrounding the death of Jessica Lunsford, a lack of understanding of the law of Florida as it applies to the facts, and an incomplete understanding of my role in enforcing the law.

I write to explain to the public the facts upon which the decision was based, the laws of Florida that were reviewed and my obligations in enforcing the criminal laws of Florida.

The facts

While there has been substantial news coverage of the search for Jessica Lunsford and the subsequent investigation of her death, there is much that has not been released to the press and, even if released, reported to the public.

I make decisions based on all of the information available, not just that which has been reported in the press. Chief among the information that I have at my disposal is the full text of Couey's statements to authorities. Those statements have only now been released to the public and the press.

Other significant information that I have reviewed, some of which has not been made public, are the findings of the autopsy and preliminary reports from the Florida Department of Law Enforcement's crime laboratory. While these written reports are not yet completed, I am fully aware of the results of the autopsy and any preliminary findings of the crime laboratory.

In his statement to sheriff's deputies, Couey did at one point claim that he kept Jessica alive in the closet in his room for six days. He also later claimed he had done so for two days. Even later in his statement, the time period changed to three days.

According to his version of events, during this time he and Jessica developed a relationship in which she voluntarily participated in various sex acts with him. He claimed that she even offered to call a friend of hers, so that the friend could come over and join them in those activities.

There are other more sordid claims made by Couey that I will not be a party of repeating in a public forum. Based upon the sheer preposterousness of his statements, no one could possibly believe that these statements are a truthful account of the events leading to Jessica's death. The changes in Couey's story and the outrageousness of his claims about Jessica's behavior make the accuracy of any uncorroborated details of his statement unworthy of belief.

Couey also claimed that during her time in his room, Jessica and he shared pizza, hamburgers and chicken nuggets as their meals. As reported by Jessica's family, she did not like pizza. Further, her stomach did not contain any food at the time of her death.

Couey also claimed that in order to prevent the other occupants of the house from knowing of Jessica's presence, she did not use the bathroom in the mobile home, but instead urinated on the floor in the closet. The FDLE's analysis of evidence taken from the closet has not identified any urine present on the closet floor. Couey's statement is not only outrageous on its face, the portions of it regarding the time frame that Jessica was in the mobile home are contradicted by the known physical evidence.

Those who deal with pedophiles and child molesters know that often the offender will attempt to minimize their crime by suggesting that the victim participated willingly in the acts or by shifting the blame for their crime to others. Psychologists that practice in this area call this cognitive distortion. Couey does both in his statements. He suggests that Jessica was, to some extent, a willing participant in his crimes against her and suggests that law enforcement had an opportunity to find her alive but failed to do so.

We do know that Couey took Jessica from her home without arousing either her grandparents or the family dog. He came and went from his room through the window using a stepladder. We know that the events took place between 11:30 p.m. and 5:45 a.m. while Dixon, Dittrich and Secord were asleep after having been under the influence of drugs and alcohol.

Child rapists almost always use a combination of promises of release and threats of harm to the child or her family to persuade their victims to not cry out. In his prior crimes against children, Couey had used his hand across their mouth to prevent the victims from saying anything. The best evidence is that Couey used a combination of force, threats and promises to move Jessica from her home to his room, to sexually assault her and then murder her.

Finally, John Couey's statement to authorities is hearsay. Hearsay, as is commonly known, is not generally admissible in a jury trial. Florida's evidence code recognizes 28 exceptions to this general rule of inadmissibility. One of those exceptions allows the statement to be used against Couey at his own trial. There is no exception that would allow it to be used at a trial of anyone else.

If any of the three trailer occupants were to be prosecuted on the basis of Couey's claim that Jessica was alive for any period of time, it would require that Couey appear and testify on behalf of the state of Florida. But it is significant that in Couey's statement he says repeatedly that none of the others knew that Jessica was in the trailer.

Couey's attorneys have already made clear his intention to remain silent. To have Couey testify at the trial of any of the other three would require the state of Florida to offer some type of plea bargain.

Some people, like Mr. O'Reilly (TV show host Bill O'Reilly of The O'Reilly Factor) do not believe that Couey's crime warrants the death penalty. Those people may not object to me making a deal with Couey to obtain this testimony. I, on the other hand, fully intend to seek the death penalty for John Couey, and will not compromise that prosecution in order to have Couey testify, especially when his uncorroborated testimony is so suspect.

The law

Florida, like most states, has a law that makes it a crime to be an accessory to a felony. Many have asked why the three mobile home occupants cannot be prosecuted for being an accessory to Jessica's murder. In order to be an accessory to a felony, the law requires that there be proof that the person knew a particular crime had been committed. Florida courts have made it clear that a suspicion that someone has committed a crime is not enough. There must be proof they actually knew.

Those who have argued that the three knew that Couey committed a crime have done so on the premise that if Jessica was alive in the house for a period of time, they must have known she was here.

As I have mentioned, that premise is not supported by the facts. There is no evidence the three other occupants of the mobile home knew Jessica was there. There is no evidence they knew Couey had committed this crime.

To argue that the three knew anything about the crime, one must ignore the outrageousness of Couey's statement and accept it as true. If accepted as true, one must also accept as true that part of Couey's statement where he states clearly that the three did not know that Jessica was in the home.

This is not a situation where there is weak evidence, or where a jury might not convict. This is a situation where there would be no evidence of a crime to introduce, the jury would never deliberate because the judge would be required to dismiss the case as there is not a shred of evidence of guilt.

Maddie Secord did buy John Couey a bus ticket in her name. The evidence is that she did so because she knew that Couey had a warrant outstanding for violating his misdemeanor probation. Florida's accessory statute, by its very terms, only applies to felonies, not misdemeanors. Absent proof that Maddie Secord knew John Couey had committed a felony, there is no proof she was an accessory to a felony.

Florida also has a crime of obstructing an officer while in the performance of their legal duties. But Florida does not have a specific crime of simply lying to a police officer, although some jurisdictions do. When sheriff's deputies went to the Dixon home during their initial neighborhood canvass, they asked who lived there. The fact that John Couey was in the house was not revealed, and in fact it was denied that anyone else was there. It was for this lie that all three were arrested three weeks later for obstructing an officer without violence.

The obstructing an officer statute can, under specific circumstances, be used to prosecute those who provide false information to a law enforcement officer. The courts have strictly limited the situations in which this statute can be used to prosecute people for lying to a law enforcement officer.

The courts have said that when someone is in custody or lawfully detained, and that person provides false information, or if a person lies to an officer who is actually attempting to serve legal process, a charge of obstructing a police officer can be made. But the courts have repeatedly said that when someone is voluntarily speaking to the police, since that person is not obligated to speak at all, they cannot be punished for lying if they choose to speak. Since the deputies had no legal reason to detain any of the three in the house, or to require any of the three to speak, their conversation with the deputies was voluntary, and therefore the three cannot be prosecuted for lying about Couey's presence at the house.

The final legal issue that was reviewed was the fact that Couey had failed to register as a sex offender when he moved to the home of Dorothy Dixon, and that she failed to report this. At common law there was a crime called misprision of a felony, which made it a crime to fail to report the commission of a felony. For decades, Florida courts have said that such a crime does not exist in Florida under our current statutes.

There are only four specific, and narrow, situations where a crime must be reported. Failing to register as a sex offender was not one of those crimes at the time of these events. In fact, there is no evidence that Dorothy Dixon knew Couey was a sex offender until after he had become a suspect in the disappearance of Jessica. When law enforcement went back to the trailer, after Dixon learned that Couey was a sex offender, she consented to a full search, gave a complete statement, and has remained cooperative with law enforcement.

My legal obligations

During the prosecution of Couey there will be two occasions when we may have to rely upon Dixon, Dittrich or Secord to provide us with critical testimony. Their cooperation, and testimony, may prove necessary to convict Couey. They have promised that cooperation and have given it to us so far. No agreement was made with them in order to obtain this cooperation; they have offered it freely and voluntarily.

While as the state attorney I bear the final responsibility for the action of my office in this case, I did not reach this conclusion alone. Four career prosecutors, all of whom prosecute capital murder cases, with a combined experience of almost 100 years, spent many hours reviewing this case and the statute which might apply. Three of those prosecutors are, like myself, fathers with daughters. All wanted to find a way to prosecute anyone who had anything to do with the death of this child, no matter how minor their involvement.

However, the inescapable conclusion was, and remains, that no matter how much we wanted to charge Dixon, Dittrich or Secord, the facts and the law do not support a prosecution.

Finally, there are those who suggest that I should just file charges and let the defense attorneys find the legal precedent to "get them off." I cannot do that, and honor the commitment I have made to my position. In defining the role of the prosecutor, the Supreme Court of the United States has said that a prosecutor is:

"The representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. . . . He may prosecute with earnestness and vigor - indeed he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one."

The Florida Supreme Court has said of a prosecutor:

"It matters not how guilty a defendant, in the prosecutor's opinion may be, it is his duty under oath to see that no conviction takes place except in strict conformity to the law."

I take these instructions very seriously. They are what set prosecutors apart from all other lawyers. Part of our obligation is to ensure the integrity of our criminal court system. As easy, and perhaps popular, as it would be to charge these three with some crime, I could not do so, and honor the obligations placed upon me.

I hope that by sharing the facts of this case, the law that we have reviewed and my obligations with you and your readers, you have a fuller appreciation of the criminal court system and how it works to apply the law fairly to everyone.

Brad King is State Attorney for the Fifth Judicial Circuit, which includes Citrus, Hernando, Marion, Lake and Sumter counties.