By THOMAS W. KRAUSE The Tampa Tribune
Published: Jul 16, 2007
TAMPA - This week, finally, Mark Lunsford will get to speak his mind in open court.
This year, on the first day of a weeklong murder trial, Lunsford testified about opening the door to his 9-year-old daughter Jessie's bedroom and realizing she was gone.
Lunsford's testimony was over in minutes.
Prosecutors intentionally kept it short, worried that, in a moment of passion, Lunsford would mention a tape-recorded statement in which John Evander Couey acknowledged luring Jessie from her bedroom in the middle of the night, sexually abusing her, then burying her alive in a four-foot grave behind his mobile home.
The judge had determined previously that Couey asked for a lawyer and was denied one before he gave his statement. At trial, jurors could not be made aware of Couey's remarks. Had Lunsford slipped and mentioned the tape recording, the judge would have been forced to declare a mistrial.
On March 8, the jurors found Couey guilty of Jessie's murder. Prosecutors then presented evidence about why he deserved the death penalty.
Mark Lunsford was not allowed to testify during that procedure. He wanted to ask the jury to condemn Couey to death, but victims' family members are not allowed to ask a jury for a specific punishment.
Jury Recommended Death
In a 10-2 vote, the jury recommended Couey's execution. The ultimate decision on Couey's sentence - life in prison or death by lethal injection - now rests with the judge.
He must, by law, give great weight to the jury's recommendation, but the decision is his.
On Tuesday, the judge will hear testimony from prosecutors and defense attorneys to help him make that decision.
Among those testifying will be Lunsford, Assistant State Attorney Pete Magrino said last week.
With no jury present, any inappropriate testimony by Lunsford would be much less detrimental. The judge knows most of the information that would have prejudiced a jury.
Two main issues will dominate Tuesday's hearing:
•Does Couey deserve to die for his crime?
•Is Couey mentally retarded?
At trial, Couey sat at the defense table, a skinny gray-haired man in an oversized suit. Hunched forward through most of the proceedings, Couey rarely looked up from his colored pencils and his sketch pad.
Rather than watching the progression of his trial, Couey spent his time drawing various scenes of angles. He also had coloring books and, at one point, shaded in a long-necked dinosaur eating leaves from a tall tree.
His lawyers say he is mentally retarded and, under Florida law, cannot be executed.
The saga of John Evander Couey continues this week back where it began, in Citrus County. Couey was tried in Miami after an impartial jury could not be found in Citrus County, where Jessie was killed.
On Tuesday, prosecutors and Couey's lawyers will appear in an Inverness courtroom. Couey's team is expected to present mental health experts who will tell Circuit Judge Ric Howard that Couey is mentally retarded.
The argument isn't likely to go too far.
Couey's defense lawyers have tried once to convince Howard that Couey was too retarded to know what he was saying when he spoke to detention deputies about his crime. They argued that the detention deputies, therefore, should not be able to testify against Couey.
After that argument, Howard ruled that Couey seemed competent as he sat in a jail cell, able to understand the math needed to complete Sudoku puzzles and able to study for his high school equivalency exam.
The deputies testified.
IQ Test Results Fluctuate
In 1978, during Couey's first stint in prison, his IQ was measured at 71. Anyone with an IQ below 70 is considered retarded.
Since that first test, Couey's IQ has been measured at 85 and 78. Weeks before his murder trial began, a doctor recorded Couey's IQ at 64.
The retardation argument will not be the defense team's only attempt to save Couey's life. Just as his attorneys tried unsuccessfully to persuade a jury to spare Couey, they most likely will use many of the same arguments to persuade Howard to ignore the jury's recommendation and sentence Couey to life in prison.
Couey, they argue, was born premature to a 16-year-old mother. He suffered physical abuse at the hands of an alcoholic father, resulting in brain damage, the defense team said. As a child, he was teased mercilessly by classmates because of his floppy ears and speech impediment.
Prosecutors on Tuesday likely will reiterate for the judge the horrific details of the murder:
Jessie was abducted from her home in the middle of the night. Couey kept her in the closet of his mobile home and sexually molested her. Eventually, he bound her wrists and ankles with speaker wire. He placed her inside two black plastic garbage bags and lowered her from a window. He laid her, still alive, in a 4-foot-deep hole. Shovelful by shovelful, he filled it with dirt.
When Jessie's body was found, her lifeless fingers poked through the plastic bag.
After Tuesday's hearing, Howard will study the arguments made by prosecutors and defense attorneys. Everyone will return to court at a later date for Couey's official sentencing.
Reporter Thomas W. Krause can be reached at (813) 259-7698 or firstname.lastname@example.org.