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Lessons of Couey, Onstott cases

In the interrogation room, detectives need to preserve Miranda rights as well as lives.

By COLLEEN JENKINS
Published March 11, 2007

TAMPA - It seems so fundamental. When a suspect asks for a lawyer, an interrogation must stop. A few episodes of Law & Order teach you that.

So 40 years after the Supreme Court's landmark Miranda rights decision, how did detectives interviewing John Couey and David Onstott get it wrong?

Law enforcement veterans say life inside an interrogation room isn't as black and white as it might look from the outside, especially when a child is missing.

"There's a terrible battle," said Port Richey lawyer Craig Laporte, a former sheriff's deputy. "What's more important: Saving a child's life or preserving a confession for what may or may not be a murder?"

On Thursday, prosecutors won a conviction against Couey without his confession to killing 9-year-old Jessica Lunsford in Homosassa. Just three days earlier, Hillsborough Circuit Judge Ronald Ficarrotta threw out what authorities said was Onstott's admission that he choked to death 13-year-old Sarah Lunde in Ruskin. Prosecutors, lacking any physical evidence tying Onstott to the crime, are appealing the decision.

Confessions in both cases were thrown out on the grounds that investigators ignored the men's requests to have an attorney present during questioning. Ficarrotta used straightforward, dispassionate language to point out the missteps in the Onstott investigation.

In the Couey case, Citrus County Circuit Judge Ric Howard was more emphatic.

Refusing to give a suspect access to an attorney "is not a mere technicality," he said last year. "This is a material and profound violation of one of the most bedrock principles of criminal law."

Law has gray area

Kenneth Afienko, a lawyer who teaches police recruits at St. Petersburg College, said the two high-profile cases have differences that highlight the difficult situations law enforcement must navigate.

Whereas Couey's request for an attorney was unequivocal - "I want a lawyer," he said - the law allows detectives wiggle room if a suspect is more evasive, Afienko said.

Authorities argued at a hearing last month that Onstott selectively invoked his rights by saying he would not sign any forms or take a lie detector test without first consulting an attorney. But he never refused to speak to them.

That gets into gray area, according to Afienko.

"I could see where the problem comes in if you don't qualify it," said the 25-year law enforcement veteran. With that response, "I would maybe have suggested some clarification."

"When in doubt, pull it out," he cautions his students, referring to their copies of the Miranda warning, which outlines rights such as remaining silent and having access to legal representation.

Former prosecutor Mike Benito saw one of many convictions against serial rapist and murderer Bobby Joe Long get reversed by the Florida Supreme Court in the late 1980s because detectives didn't cease questioning after Long said, "I think I might need an attorney."

Benito said the pressure on detectives heightens in a missing child case. Such cases can easily stretch resources and generate public criticism. Neither Jessica nor Sarah had been found when detectives began questioning the men suspected of harming them.

"I think the motivation there was to find the body," Benito said. If there's a chance to save the child, "most police officers are going to say to heck with the confession. It if gets thrown out, so be it."

Plenty of Benito's fellow defense attorneys disagree, arguing there is no excuse for ever violating the right to an attorney. Interestingly, though, some of the people with the most to lose also take an opposing stance.

Victims' fathers agree

Marc Klaas and Roy Brown both had young daughters who were kidnapped and murdered. The man who killed Polly Klaas in California confessed after a lengthy interrogation during which the detective gave up no more than a cheeseburger, a larger cell and a pack of cigarettes. Willie Crain, who never confessed to killing Amanda Brown of Tampa, continues to fight his conviction and death sentence.

Anger rose in both fathers' voices when they heard about confessions that came at the expense of constitutional rights and a potential conviction.

"It's time for those cops to go back to school," Klaas said last week. "You get a guy back out onto the street because they were unable to follow procedure."

Brown, who plans to travel to Miami this week for the death penalty phase against Couey, echoed those sentiments.

"Part of me is, do whatever you have to do," said Brown, whose daughter's body has never been found. "But look at this (Onstott) case. If he walks out of that courtroom, then they've let a murderer walk away."

Onstott's public defender, John Skye, acknowledged in court last month the pressure that detectives faced and argued they were more concerned about getting a confession than upholding his client's rights.

"Constitutional rights are supposed to be scrupulously honored, not given a wink and a nudge," he argued.

Detectives say Onstott confessed hours after Lunde's body was found in an abandoned fish farm pond. At that point, they needed to switch their focus from saving a child to building the foundation for prosecution, Laporte said.

But he isn't surprised that law enforcement officers push boundaries to do what they think is morally right for the child.

"We like to think that our police officers are robots. They're not," Laporte said. "They've gone from trying to save a child's life to finding out the child is dead. Does emotion become involved? Of course it does."

Times researchers John Martin and Angie Drobnic Holan and staff writer Jamal Thalji contributed to this story. Colleen Jenkins can be reached at (813) 226-3337 or cjenkins@sptimes.com.

[Last modified March 10, 2007, 20:51:38]