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Defense attorneys hail Miranda ruling

Florida Supreme Court Justice Charles Wells, left, said his colleagues were needlessly complicating Miranda requirements. Justice Barbara Pariente, right, proposed a standard form.

Associated Press (2004)

Florida Supreme Court Justice Charles Wells, left, said his colleagues were needlessly complicating Miranda requirements. Justice Barbara Pariente, right, proposed a standard form.

TAMPA — On TV, the script is simple.

A police officer cuffs a suspect, then rattles off his rights to stay silent, to consult an attorney, to know that anything he says can be used against him in court.

In real life, things aren't so seamless. Tampa police learned that the hard way last month, when the Florida Supreme Court upheld the reversal of a man's firearm conviction and 10-year prison sentence because officers did not explicitly inform him of his right to consult a lawyer both before questioning and during it.

Criminal defense attorneys hail the decision, which gives them a rare new arsenal for an untold number of cases. The Florida Attorney General's Office wants a rehearing — on the grounds that justices overlooked or misinterpreted existing law — and could try to take the case to the U.S. Supreme Court.

• • •

The Hillsborough State Attorney's Office won't comment on the decision and does not yet know the extent of its effect. So far, confessions or incriminating statements made by at least three murder suspects have been thrown out or could be at risk.

Among them: Scott Schweickert, convicted in federal court of helping to drug and rape a Tampa man in 2003 but never charged in state court with murder. Tampa police read him Miranda rights using the flawed form, and prosecutors say they held off on filing more charges in part because they wanted to see how the court's decision would affect their ability to use Schweickert's incriminating statements at trial.

"I think it's going to have a huge impact on a lot of cases if due diligence is done by lawyers," defense lawyer Brian Gonzalez said.

Forty-two years have passed since the U.S. Supreme Court instituted the Miranda warning to protect a suspect's Fifth Amendment privilege against self-incrimination. But the court did not dictate the precise language police must use before an interrogation, leading to disputes among lawyers and lower courts over varied interpretations.

In the case of Kevin Dewayne Powell, arrested in August 2004 on a charge of being a felon in possession of a firearm, a majority of Florida Supreme Court justices felt that the language used for years by Tampa police officers was deficient.

Only Justice Charles Wells dissented, saying his colleagues were needlessly complicating the Miranda requirements for police.

Justice Barbara Pariente proposed creating a standard form for police departments statewide, one that would withstand future legal scrutiny.

That idea makes a lot of sense to a local law professor, who wonders how law enforcement can still be grappling with this issue so long after the Miranda decision.

"The truth is, it's a simple fix for police departments," said Bobbi Flowers, who teaches at the Stetson University College of Law. "They come up with a standard form that fits the law, and then every officer is trained to use that form."

The Hillsborough State Attorney's Office didn't wait for the Powell decision to take action. After half of the local appellate court judges raised doubts about the Miranda warning used by Tampa police in a ruling last year, prosecutors issued new forms to that agency and the Temple Terrace and Plant City police departments, which also used similar warnings. The new forms make clear the right to an attorney before and during questioning.

Arrests made since should not be affected by last month's opinion. And the Supreme Court said the opinion would not apply to cases resolved before it was issued.

• • •

Still, defense attorneys are delighting in their ace card for the cases the ruling does affect.

Gonzalez already invoked the Powell decision to convince Hills­borough Circuit Judge Manuel Lopez to throw out the incriminating statements of first-degree murder defendant Dominick Fletcher, accused of taking part in a 2006 home invasion and killing in Plant City. The state has appealed.

The attorney expects a similar ruling for Benjamin Wibben, who is charged with fatally shooting a couple in their Plant City home in 2005. At an Oct. 20 hearing, Gonzalez and a prosecutor agreed that Wibben's statement to police likely would not be admissible at trial if the Powell decision stands.

If Hillsborough prosecutors file murder charges against Schweickert — who already is serving 40 years in federal prison — they may try to get his statements admitted at trial by arguing he was not in police custody when he made them.

Even if defense attorneys prevail, the state is unlikely to drop such cases altogether. With enough circumstantial evidence, they can still win a guilty verdict. Child killer John Couey got the death penalty even after his confession was thrown out, defense attorney John Trevena noted.

"One useful tool has now been handed to us, but it's not by any means the Excalibur," he said. "There's still more that needs to be done."

Colleen Jenkins can be reached at or (813) 226-3337.

Defense attorneys hail Miranda ruling 11/01/08 [Last modified: Monday, November 3, 2008 3:38pm]
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