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Couey judge reverses reversal

First, Circuit Judge Ric Howard said a detective could give taped testimony in the kidnapping and murder case, then he couldn't. Now he can again.

By ABBIE VANSICKLE
Published September 2, 2005

INVERNESS - Legal wrangling in the John Couey case reached a new height Thursday when Circuit Judge Ric Howard reversed his earlier reversal of a decision concerning the testimony of a lead investigator in the case.

As it stood after Thursday's hearing, Citrus sheriff's Detective Scott Grace will give taped testimony before he leaves for a one-year job in Iraq and Kuwait with Halliburton.

Prosecutors and Couey's defense attorney, Assistant Public Defender Daniel M. Lewan, fought over whether Grace should give taped testimony before leaving the country. The judge had sided with the prosecutors at a hearing Monday, then reversed his decision at a hearing Tuesday morning. On Thursday, he changed his mind again.

Prosecutors argued Grace might not be able to return to testify during the trial because he's going into an unpredictable, dangerous war zone. The defense pointed to statements made by Grace that he'd likely be able to return and voiced concern that it's far too early in the case to cross-examine a key witness.

In the end, Howard agreed with the prosecutors.

"I think that I must now overturn my prior ruling of Tuesday," he said after again listening to the arguments.

Grace is one of two detectives who interviewed Couey after his arrest in Augusta, Ga., about the disappearance of 9-year-old Jessica Lunsford, and prosecutors called him an "essential witness."

Couey, 47, is accused of kidnapping, sexually assaulting and killing Jessica. He has pleaded not guilty. He sat shackled in the courtroom Thursday and did not say anything.

Grace resigned Aug. 24 from the Sheriff's Office. In his resignation letter, Grace said he took the job to create a better life for his family. His last day with the Sheriff's Office is Wednesday .

Grace did not attend the 3:15 p.m. hearing, which began with an argument about delivery of legal documents in the matter. Lewan told the judge he hadn't received the prosecutors' latest motion for Couey's hearing. Prosecutors were adamant it had been hand-delivered to him.

The lawyers then debated over Grace's testimony. Chief Assistant State Attorney Ric Ridgway told the judge he wanted Grace to tape testimony in case the investigators weren't able to return to testify at the trial. He said the court was "misdirected" in Tuesday's hearing on the issue.

"Given the situation, there is a possibility that Mr. Grace is going to be unavailable to testify," Ridgway said. He then told the judge 232 American contractors had been killed in Iraq as of December.

"There's no doubt it's a bad area, no doubt," Howard replied.

"Detective Grace made it clear he's willing to come back. . . . He's not the master of his own fate," Ridgway said. "When the time comes for trial, if he can be brought back, obviously he'll be back. . . . But it may be that he's totally unable to be reached."

If Grace can't make it back, and only if, they'll use the taped testimony at the trial, Ridgway said.

The most important part of Grace's testimony is expected to center on fewer than five minutes he had alone with Couey, Ridgway said.

Grace is "the only individual in the entire world" who can testify to exactly what happened during that time, Ridgway said.

Lewan argued Thursday's hearing wasn't procedurally correct because there cannot be a rehearing in a criminal case.

Grace's testimony shouldn't be taped just because prosecutors are concerned he might not be able to attend the trial, Lewan said.

Witnesses in any case could die without warning in car accidents or because of illnesses, but that doesn't mean all testimony should be taped before the trial, just in case the worst happens, he said.

Lewan also told the judge he was concerned about the departure of two defense attorneys, who left the public defender's office in recent weeks.

"I don't have the manpower," he said. Earlier in the week, he'd asked for more time to prepare for the trial.

"I can't effectively cross-examine Detective Grace," he said.

Howard then asked the lawyers to figure out how long Lewan has had access to Grace's investigative report and how many pages it was.

"We're not going to pingpong this all day," Howard said.

He then announced his decision and told Lewan to focus on his other noncapital cases.

"I'll find somebody else to share the load," Howard said.

Grace is ordered to meet with Lewan and the prosecutors at 9 a.m. Tuesday in Lewan's office to give a deposition and testify.

Abbie VanSickle can be reached at 860-7312 or vansickle@sptimes.com

[Last modified September 2, 2005, 02:15:35]