Will Prosecutors Still Be Able to Get Justice for Jessica?

This is a partial transcript from "Hannity & Colmes," June 30, 2006, that has been edited for clarity.

(BEGIN VIDEO CLIP)

SEAN HANNITY, CO-HOST: She seemed like the sweetest kid. She just seemed like the happiest girl. Is that the kind of kid she was?

MARK LUNSFORD, DAUGHTER JESSICA ABDUCTED AND MURDERED: Well, I mean, that is the kind of girl she was. And, I mean, that's still the kind of girl she is. I keep...

HANNITY: She's like the girl next door.

M. LUNSFORD: Yes. She was just like your little girl, the one you love so much, you know, daddy's little girl.

(END VIDEO CLIP)

ALAN COLMES, CO-HOST: That was Mark Lunsford on this very program talking about his 9-year-old daughter, Jessica, who was murdered allegedly at the hands of convicted sex offender John Couey.

Now listen to what Couey told police about Jessica's abduction two days before her body was discovered buried in Couey's yard.

(BEGIN VIDEO CLIP)

JOHN EVANDER COUEY, ACCUSED KILLER OF JESSICA LUNSFORD: I went out there one night, and dug a hole, and put her in it, buried her.

POLICE: Was she dead already?

COUEY: No, she was alive. I buried her alive.

(END VIDEO CLIP)

COLMES: Now a jury may never hear that confession. A judge today ruled that, because Couey had asked to speak with an attorney and was not given the opportunity to do so, his confession that he kidnapped, raped and murdered 9-year-old Jessica must be thrown out of court.

Now, we're joined by the former attorney for Mark Lunsford, Herb Cohen. And with us on the phone, Jessica's grandmother, Ruth Lunsford.

Let me go to Ruth Lunsford first, and, of course, we're so sorry about what you must be experiencing, Ruth. Tell us your reaction to this news.

RUTH LUNSFORD, JESSICA'S GRANDMOTHER: Well, I believe that our state and our law enforcement, our judicial system is OK. And I think everything will be all right. That's my real thought.

COLMES: You believe justice will be done?

R. LUNSFORD: I believe justice will be done, yes.

COLMES: Herb Cohen, is there enough other evidence here? And, by the way, there is a Sixth Amendment right to counsel. And should the detectives have been aware of this and been sensitive to this at the time that they were questioning him so as not to allow this to happen?

HERB COHEN, FORMER LUNSFORD ATTORNEY: Well, they sure should have. I mean, you don't take a road patrol officer — and nothing negative about them — but to investigate a homicide, just like you don't take a new prosecutor to go prosecute a homicide case.

You get experienced people that should be experienced in the law. This is a cornerstone for 30 years, Miranda v. Arizona, of our judicial system. And they needed...

COLMES: The question is — go ahead...

COHEN: Of course, the officers had to know this, when someone invokes their right to an attorney, especially in Florida. The Florida Supreme Court, over the past three or four years, has made it abundantly clear, by throwing out murder cases, that if you don't read Miranda warnings and read them appropriately to a defendant and abide by them, then that cornerstone of our judicial system is lost, unfortunately.

HANNITY: Well, and the prosecutor, as I understand it, is not going to appeal in this particular case, Herb, and thanks for being on the program here. As I understand it, it's eight times in 46 seconds he was trying to invoke his rights here, and one has got to one wonder why this was not recognized, especially because they weren't coercing this confession in any way.

He apparently gave it voluntarily, but they had to know that eventually it might be inadmissible.

COHEN: Well, they had a situation where there was three statements. We won't call the first two confessions. The first two times John Couey spoke to the detectives, he denied involvement in it.

Then they talked abut a polygraph. They brought an FBI agent down to polygraph him. And during the interview, then he decided to say that he wanted to tell the truth to these two detectives.

But, of course, he talked about having a lawyer, "Should I have a lawyer?" Experienced, seasoned law enforcement officers must abide by this, because this is their penalty, the exclusionary rule. The judge had to follow the law; he had to throw out the evidence.

HANNITY: All right, but there's other points. The discovery here of the body can be used as evidence, the judge said, and the consent search of the mobile home where he lived turned up a bloody mattress that tested positive for Jessica's DNA. And apparently, the ground had been disturbed, so they would have found the body anyway, correct? So there's a ton of other evidence here. We don't have to worry about this conviction, do we?

COHEN: Well, I don't think we have to worry about it. That's kind of a two-point question. Number one, there's an inadvertent discovery rule that comes down from the U.S. Supreme Court to the Florida Supreme Court.

COLMES: Got about 10 seconds, sir.

COHEN: They would have found it anyway, and the prosecutors working hard have enough evidence to convict him.

COLMES: Thank you very much, sir. Ruth Lunsford, we thank you very much for coming on with us tonight.

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