TBO.com - TBO is Tampa Bay Online

Court Throws Out Conviction

ADVERTISEMENT

By THOMAS W. KRAUSE, The Tampa Tribune

Published: December 15, 2007

TAMPA - Every viewer of television crime dramas, reader of detective novels or avid moviegoer has heard the words: "You have the right to remain silent ... ."

But the most subtle changes in that legal wording can create havoc within the justice system.

On Friday, for the second time in about two months, a Florida appeals court threw out a conviction by ruling that Tampa police detectives had faulty language on a standard form that suspects signed to say they understood their rights.

The form is no longer in use.

For about six months, Tampa police detectives have been reading suspects their rights from a card provided by the State Attorney's Office. Suspects sign the card to say they understand their rights, police spokeswoman Laura McElroy said.

The state Supreme Court is expected to review the appeals court's recent rulings.

In the 1966 case Miranda v. Arizona, the U.S. Supreme Court determined that anytime police want to talk with suspects in custody, they must tell the suspects that they have the right not to talk, that they can use the help of an attorney and they will be provided an attorney if they cannot afford one.

The old Tampa police form told suspects they had the right to talk to a lawyer "before" questioning but it neglected to tell the suspects they had the right to have a lawyer present "during" questioning. Tampa police could not determine Friday how long they had been using that old form.

Although the difference might seem minor, the appeals court judges said this is an error that requires them to throw out statements the suspects made after signing the form.
Assistant State Attorney Mike Sinacore said each law agency has its own standard form. This year, he said, prosecutors began to realize that the Tampa police form came under fire more often than other agencies' forms. Prosecutors, therefore, worked with Tampa police officials to tweak the language.

"We didn't see the forms as insufficient but we felt they could be made better to reduce the amount of time spent in court arguing over them," Sinacore said.

In October, however, appeals court judges overturned the conviction of a man who had signed the old form.

Kevin Dewayne Powell had been sentenced to 10 years in prison on a charge that he was a felon in possession of a handgun. He had told police that he bought the gun on the street and kept it for protection, even though he knew that as a felon, that was illegal.

Because police had little evidence beyond Powell's statement, his conviction was overturned. Currently, Powell remains in prison while the state Supreme Court reviews the issue.

On Friday, the appeals court made a nearly identical ruling in the case of Willie Brooks Mitchell. Mitchell was serving a life sentence for attempted murder, armed burglary and assault.

In 2005, Mitchell was convicted of entering a home and slashing a 72-year-old woman in the neck, head and hands. The victim was never able to positively identify Mitchell, court records show. The appeals court determined that Mitchell's statements to police were integral to his conviction. The conviction was overturned because of the faulty language on the old form.

David Parry, a Clearwater lawyer who handles criminal appeals, said many convicted criminals who gave statements to Tampa police may be gearing up for similar appeals.

"Clearly, short term, it has what could be some pretty strong ramifications," he said.

Sinacore, however, said he guesses that the state Supreme Court will overrule the appeals court and will determine that the language on the Tampa police form did give proper warning to suspects.

Appeals Court Judge Chris W. Altenbernd wrote in Friday's opinion that police agencies in Florida often write their own versions of Miranda warnings. The attorney general or Legislature, he wrote, should create a standard warning to prevent similar problems in the future.

Reporter Thomas W. Krause can be reached at (813) 259-7698 or tkrause@tampatrib.com.

Share this:

Loading Comments...

Email Print

ADVERTISEMENT