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Defective Miranda Form Could Overturn Convictions

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By ELAINE SILVESTRINI | The Tampa Tribune

Published: October 7, 2008

In a decision that could imperil untold numbers of criminal prosecutions in Tampa, the state Supreme Court has ruled that the form used by city police to warn suspects of their rights was defective.

The court, in a 6-1 ruling, held that statements given by suspects after police administered the flawed Miranda warning may not be used as evidence against them. The decision directly overturns the weapons conviction of one defendant, Kevin DeWayne Powell.

Officials Tuesday could not give any estimate about how many other cases may be affected.

The court wrote that the decision may not be applied retroactively to cases that are already final, but it was not immediately known what that meant – whether it applies to defendants who have been sentenced or if it means just those whose appeals have been exhausted. One local lawyer, Tom Scarritt, said "final" means defendants have either pleaded guilty or been convicted.

But even if the decision is not applied retroactively to all those cases, "That could still be a large number of cases," Scarritt said. "It's a big deal."

"We're discussing appellate options with the attorney general," said Pam Bondi, spokeswoman for the Hillsborough State Attorney's Office, who would not comment further on the ruling.

After state appeals courts overturned convictions based on the form, police began using a revised form last year.

The old Tampa police form told suspects they had the right to talk to a lawyer "before" questioning but it didn't mention that suspects also have a right to have a lawyer present "during" questioning.

A Tampa police spokeswoman could not say Tuesday how long the department used the old form, but court rulings suggest it dates at least to 2005.

The state Supreme Court ruling, authored by Chief Justice Peggy Quince, states that the Miranda rights form used by Tampa police was "misleading" and "suggests to a reasonable person in the suspect's shoes that he or she can only consult with an attorney before questioning; there is nothing in that statement that suggests that the attorney can be present during the actual questioning."

The lone dissenting justice, Charles T. Wells, wrote that the court's decision "will result in reversing the convictions of individuals who have confessed to crimes based upon a holding that is at most an extreme technical adherence to language and that hs no connection with whether the person who confessed understood his or her rights."

Reporter Ray Reyes contributed to this report. Reporter Elaine Silvestrini can be reached at (813) 259-7837.

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