Defense: Murder suspect was denied an attorney
By COLLEEN JENKINS
Published January 18, 2007
Hillsborough sheriff's detectives "ignored and then thwarted" David Lee Onstott's repeated requests to speak with an attorney before charging him in the slaying of a 13-year-old Ruskin girl, his lawyers say.
In motions made public Wednesday, Onstott's attorneys argue a judge should throw out statements he made to law enforcement officers. Legal experts say it could deal a blow to the state's death penalty case.
No physical or forensic evidence ties Onstott to the death of Sarah Lunde, whose abduction and murder in April 2005 was one of several child killings that gripped west central Florida.
"Those statements appear to me to be very, very critical, if not essential, to a successful prosecution of Mr. Onstott," said criminal defense attorney John Fitzgibbons, a former federal prosecutor.
Investigators sought out Onstott, 38, after Lunde's teenage brother and his friend said he came to her family's home a few hours after her disappearance. Detectives say he confessed six days later to choking her.
Details of the alleged confession were not released. Onstott's attorney, John Skye, said Onstott was led to agree to what investigators thought had happened.
In 414 pages of pleadings, Skye said detectives violated Onstott's rights in the days leading up to his arrest. Prosecutors would not comment Wednesday.
On April 11, 2005, one day after Lunde disappeared, detectives questioned Onstott, a registered sex offender who had dated Lunde's mother. He denied any involvement and let detectives search his truck and home.
Sheriff's deputies arrested him a day later on an unrelated charge of aggravated assault. But Skye said the alleged victim denied that Onstott had attacked him with a screwdriver.
To keep Onstott in jail, detectives unearthed two 10-year-old Michigan misdemeanor warrants, Skye said. Michigan authorities did not want to extradite Onstott but agreed to after the Hillsborough County Sheriff's Office offered to pay for it.
On April 14, detectives read Onstott his Miranda rights and tried to question him about the missing girl.
"Mr. Onstott advised that his attorney told him not to sign any more forms, so he would like to consult with an attorney before speaking," Detective Gregory Thomas' report stated.
When someone invokes their right to remain silent, the law allows investigators to re-approach a suspect after a "cooling off" period, veteran defense attorney Lyann Goudie said Wednesday. But if a suspect asks for a lawyer, detectives can't re-initiate their interrogation.
"Under no circumstances are they allowed to continue questioning," Goudie said. "When you invoke your right to an attorney, it's just got to stop."
Yet Hillsborough detectives continued their daily attempts to question Onstott. He continued to ask for an attorney, Skye said.
On April 16, a search team found Lunde's body on an abandoned fish farm a half-mile south of her family's home. Twice that day, Skye said, detectives told Onstott that he had a right to an attorney but failed to mention the attorney could be present during any interrogation.
That evening, Onstott's mother and Pat Courtney, his attorney at the time, came to the jail to visit him. Skye argued that Detective Steve Lewis gave Onstott a choice of seeing either his mother or his attorney, but not both. The detective said Onstott misunderstood him.
Onstott chose his mother, Refugia Whitten. Investigators secretly recorded their face-to-face meeting, hoping the son would confess.
They got only tears and a lot of nose blowing from Onstott. Detectives weren't pleased when Onstott and his mother asked for Courtney, evidenced by a transcript of their comments as they observed the meeting.
"(Expletive). He just asked for an attorney. (Expletive)."
"He's asked for Pat. The guy wants his attorney. He told me verbally, so ..."
"Are we gonna let him talk to him?"
By then, Skye said, detectives had been questioning Onstott for eight hours. Lewis, the detective, let Onstott use his cell phone to call the attorney.
After the short phone call, two detectives began their questioning again. Prosecutors say Onstott confessed later that night.
"Apparently not understanding - or caring - that they should not have even been talking to Mr. Onstott at this point, the detectives continued to follow a course of conduct designed to cajole, induce and persuade Mr. Onstott into continuing to waive the presence of counsel," Skye wrote in his motion.
At a hearing next month, Skye also will ask Circuit Judge Ronald Ficarrotta to exclude statements Onstott made to his mother and to a fellow jail inmate, Robert Pollay, who was placed in Onstott's cell by detectives to listen for any comments he made about Lunde. The defense attorney argued that both acted as agents of law enforcement, unwittingly or not, and that shouldn't be allowed after Onstott had asked for a lawyer.
Ficarrotta has recent precedent to consider. Last summer, a Citrus County judge decided jurors would not hear John Couey's confession because investigators had not honored his request for an attorney while questioning him about Jessica Lunsford's death.
Fitzgibbons said he thinks Onstott's lawyers will make a convincing case.
"There's a very bright line drawn that when the right to counsel is invoked, the police must honor it," he said.
What was said
Attorney John Skye says his client, David Lee Onstott, invoked his right to an attorney and Hillsborough sheriff’s detectives didn’t deliver. Here are excerpts from written transcripts provided by Onstott’s attorney:
Onstott: Well, I understood you said that if you talk to (attorney Pat Courtney), most likely you’re not gonna talk to your mom.
Detective Steve Lewis: I said, if you talk to Pat, I don’t know if you’re gonna be able to talk to your mom ...
I don’t want you to misunderstand me. It wasn’t a choice. “It’s your attorney or your mom. Which one do you want to do?” That’s not what I said. I said, “You need to make a choice, what you want to do, because I don’t know if you’re gonna be able to see your mom once your attorney comes here.”
• • •
(Unidentified detectives, as they listened to Onstott’s conversation with his mother)
Male speaker: Can we hear?
Male speaker: No, we can’t. He’s invoked. I’m gonna cut him off until they get with us.
Male speaker: I mean, he’s invoked. We can’t record anything else.
Male speaker: Huh?
Male speaker: He’s invoked. We can’t record anything else.
Male speaker: Oh, did he invoke?
Male speaker: Yeah, he said he wants his attorney.
Male speaker: Oh, I didn’t hear that.
(Onstott is allowed to call his attorney. A detective questions Onstott, then lets him meet again with his mom.)
Male speaker: We need some more tapes. Do we have any more tapes?
Male speaker: He invoked, right?
Male speaker: Huh?
Male speaker: He invoked, right?
Male speaker: Not here, he hasn’t. But I’m recording this.
• • •
Male speaker: I didn’t have a problem with us goin’ back in there and questioning. Well, actually he never did invoke.
Male speaker: He just said, “I wanna talk to Pat.”