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Lawyer calls next Couey hearing illegal

The defense says prosecutors are wrong in calling an Aug. 19 hearing on a defense motion for the judge's removal.

By SHAWNTAYE HOPKINS
Published August 13, 2005

INVERNESS - If the pretrial activity is any indication of what's to come, John Couey's trial will entail some heated legal sparring.

The defense on Thursday said a hearing that prosecutors have scheduled for Aug. 19 is illegal. If it is conducted, the defense doesn't plan to participate.

Couey, 46, is charged with the abduction, sexual assault and killing of 9-year-old Jessica Lunsford. He has pleaded not guilty and is being held at Citrus County jail awaiting trial. He was arrested in March and indicted by a grand jury April 1.

This latest skirmish grows from the defense's request that Circuit Judge Ric Howard step off the case.

Couey's attorney, Daniel Lewan, argues that the judge is prejudiced against his client. As evidence, he noted that Howard set a Feb. 6 trial date, even though the defense said that doesn't leave enough time to prepare.

Assistant State Attorney Peter Magrino said in response that there is no factual basis to believe the judge wouldn't give Couey a fair hearing and that the defense didn't state any reasons why it thinks the judge is biased.

The defense countered that the state has no right to object to or comment on its request to disqualify the trial judge.

The state scheduled a hearing for Aug. 19, when the judge can rule on the defense's request that he step down.

That prompted the latest protestation from the defense.

Lewan says Howard should handle the defense's request and that the only issue is whether the motion is legally sufficient. Lewan says state laws don't "authorize a hearing on the initial motion to disqualify a trial judge or give the opposing party any right to a hearing or to be heard in the matter."

The defense says that allowing a hearing in the matter would give the State Attorney's Office an opportunity to argue against the motion to disqualify. This, Lewan wrote, would constitute an attorney-client relationship between the state and the judge.

Howard has recently denied the requests of two other high-profile defendants, John and Linda Dollar, who asked that he step down from their case. The Dollars are accused of abusing five of their adopted children.

[Last modified August 13, 2005, 01:21:17]