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Is rapist confession valid?

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Convicted rapist Robert Overstreet wants a judge to throw out a confession Overstreet allegedly made to police about murdering a different woman because he spoke to police without an attorney by his side.

Overstreet's lawyers contend his constitutional rights to legal representation and to avoid self-incrimination were violated because jailers refused his repeated requests to talk to his attorneys on Aug. 4, 1999, while he was in the former Salt Lake County Jail.

However, prosecutors said Overstreet did not try to get in touch with his lawyers, asked to see detectives, voluntarily waived his right to have a lawyer present and confessed knowingly.

Third District Judge Bruce Lubeck said he would review all the testimony and evidence presented in the daylong hearing Tuesday and would issue a written decision in the future.

Much of the testimony focused on what happened between Aug. 1, 1999, when Overstreet was arrested and booked into the jail, and Aug. 4, 1999, when formal charges were filed.

One public defender, Richard Gale, said he was paged the Sunday morning Overstreet was taken into the jail, and he visited with Overstreet, advising him that another public defender probably would take over the case and that Overstreet should not speak to police.

Earlier that day, police had found and arrested Overstreet in Springville Canyon in Utah County where he was sleeping in a van. He was given his Miranda rights and questioned by police for a time, but then Overstreet said he did not want to answer any more questions and wanted a lawyer.

Overstreet took the stand Tuesday and testified that on Aug. 4, he had repeatedly tried to get the attention of various jailers so he could talk to his lawyers, but the jailers either ignored or rebuffed him.

However, prosecutor Robert Stott said jail logs show no notations that Overstreet asked for attorneys. Stott also said that Overstreet earlier had filled out a written request to jailers to be moved away from other inmates — a request that had been granted.

Stott said that later on Aug. 4, Overstreet asked to speak to detectives, was again given his Miranda rights and confessed to the murder.

Police made clear that they had no control over whether the death penalty would be sought because that was up to the district attorney's office, Stott said.

But defense attorney John O'Connell said that merely giving Overstreet his Miranda rights was not enough and a higher standard should have applied in this case. O'Connell said two psychological evaluations of Overstreet indicated he is not competent to make decisions about important matters.

O'Connell said Overstreet is mildly mentally challenged, has third-grade academic skills and suffers from various mental-health ailments, including bipolar disorder (manic depression), major depression with suicidal tendencies, affective disorder and post-traumatic stress disorder.

O'Connell said not letting him talk to his attorneys all day until — in frustration — he decided to talk to police, "That is coercion."

But Stott countered that the argument that Overstreet "lost all hope" and decided to talk to police at 7:20 p.m. on Aug. 4 is a conclusion, not evidence.

E-MAIL: lindat@desnews.com