Jun 30, 12:16 PM EDT
By TRAVIS REED
Associated Press Writer
INVERNESS, Fla. (AP) -- The confession of a man charged with kidnapping, raping and killing 9-year-old Jessica Lunsford isn't admissible in court, but the discovery of her body can be used as evidence, a judge ruled Friday.
John Evander Couey, a 47-year-old convicted sex offender, gave the confession to detectives, but also told them that he wanted to consult a lawyer. He wasn't given the opportunity to do so.
"Such a police misconduct is not a mere technicality. A technicality is signing an order in the wrong color ink," Circuit Judge Ric Howard said in issuing the ruling Friday. "This is a material and a profound violation of one of the most bedrock principles of criminal law."
Howard agreed with prosecutors, however, that investigators would have found Jessica's body anyway.
Jessica had been missing for a month when she was found kneeling and clutching a stuffed animal, hands tied with speaker wire and fingers poking through the garbage bags in which she was buried alive in Couey's yard in February 2005. Two days earlier, Couey told detectives he had kidnapped, raped and killed the girl, who lived 150 yards away, and he told them where to find the body.
Prosecutors are seeking the death penalty for Couey, who has pleaded not guilty to charges of premeditated murder, burglary, kidnapping and sexual battery. Jury selection for his trial is expected to start July 10.
Sheriff Jeff Dawsy said the detectives did not do anything "maliciously" to violate Couey's rights and told reporters he expects a conviction even without the confession. "I've got enough evidence to put John Couey to death," he said.
Couey, who had fled the Homosassa area as the search for the missing girl zeroed in on area registered sex offenders, was arrested in Georgia on an unrelated Florida warrant. He gave the confession in an Augusta, Ga., sheriff's office to two detectives who traveled from Citrus County, Fla., to interview him.
On the taped interview, parts of which were played in court, Couey spoke freely with the detectives about his criminal past, crack use and family relationships. When the conversation crept closer to Lunsford, however, Couey repeatedly mentioned wanting a lawyer.
The judge said Couey invoked his rights for counsel "no less than eight times in 46 seconds."
Detectives Scott Grace and Gary Atchison have testified that Couey's mention of a lawyer came directly after Grace mentioned a polygraph test. They weren't sure if he wanted a lawyer immediately or for a later polygraph test, so they kept questioning after Couey said he would talk about "some things," Atchison testified.
Defense attorney Dan Lewan has portrayed the detectives as overzealous and coercive. He said that when his client asked for an attorney, the detectives spoke over him in a confusing interlude before simply dropping the issue.
Prosecutor Ric Ridgway said he wouldn't appeal the decision, but defended the deputies.
"If they'd have gotten him a lawyer and he'd never have talked, and she turned out to have been alive somewhere and wasn't found in time because of that, they would've been vilified here too. They were in a no-win situation," he said.
Lewan had also asked the discovery of Jessica's body be inadmissible in court because Couey told authorities where to find her.
A consent search at the mobile home where Couey was living turned up a bloody mattress, which tested positive for Jessica's DNA the day excavation began following the confession. Disturbed ground near a shovel in the yard was also suspicious enough to investigate after officers had already singled Couey out as a person of interest, Ridgway said.
"With (DNA results) they would've gotten a search warrant for the home," Ridgway said.
The case sparked laws that dramatically stiffened penalties for some sex offenders who target children, sometimes requiring lifetime electronic monitoring.