TAVARES – Courtrooms still have the traditional players — defense attorneys, prosecutor, defendant and judge — but brain-injury scientists have muscled their way onto witness stands in death penalty cases in a big way.
“It’s not an excuse for the crime but rather an explanation for how that person got into the position that he did,“ said John Spivey, Executive Assistant Public Defender.
Florida doesn’t have a diminished capacity defense for the guilt phase. It’s part of the all-important penalty phase.
The Florida Supreme Court is demanding more scientific inquiry or else the case may be overturned. But it is running up the costs of the already expensive death penalty cases and causing a backup on dockets — sometimes for years.
The case of Krystopher Laws, for example, who along with Joshua McClellan allegedly killed 92-year-old Rubye James of Leesburg and buried her in a shallow grave, is not expected to go to trial until 2019.
Lake County does a better job of scheduling than other counties. Marion is the busiest. Some cases may not go to trial for six years, prosecutors say.
The first thing defense attorneys do is to hire a mitigation specialist, who interviews family members, and examines school and military records. Investigators wonder, did he suffer any head injuries while playing football?
A neuropsychologist then administers a battery of tests to determine such things as reasoning skills and impulse control. That person might recommend a brain scan.
“If you get a neuropsychologist who recommends a pet scan and if you don’t do it, number one you’re a boob,” Spivey said. “Number two, you’re going to be reversed [on appeal].”
“I’m investigating people like a cop,” Spivey said.
If the neuropsychologist recommends a pet scan, Spivey hires a doctor to write an order.
A pet scan shows how a brain is working. It uses radioactive materials to present color pictures.
Prisoners have to be transported to Tampa for the exam.
An MRI scan, which has images in black and white, is also ordered.
A radiologist physician must examine the scans to see if part of the brain has shrunk or shows evidence of injury.
A psychiatrist, who is also a medical doctor, must now be brought in to decide if the scans indicate why the person acted the way he did.
Then, a child abuse expert is brought in to see if the defendant was abused, lived in abject poverty, if the mother was drinking during pregnancy and a whole host of other issues.
“Now, I’ve got two psychologists, a psychiatrist, a neurologist and a radiologist. I’ve just spent $150,000,” Spivey said.
It seems redundant, Spivey explained but there is a reason. “The jury presumes we’re lying.”
One of the keys is quantifying the data. How bad are the injuries and the mental illness?
Spivey relies heavily on Dr. Joseph Wu, director of Neuro Cognitive Imaging at the University of California Irvine.
Wu gives Public Defender Mike Graves’ office a break on price, “but these guys aren’t cheap,” Spivey said.
Spivey said he has less than $900,000 in his yearly budget for things like depositions and expert witnesses. However, Spivey is the lead counsel on five death cases in the five-county circuit that includes Lake. He is short-handed on death-qualified lawyers, which also backs up the cases.
Another cog is the number of defendants whose juries were not unanimous in death recommendations. They are due resentencing hearings. Lake County has two of those coming up: Allen Cox, who killed another prisoner at Lake Correctional, and Jason Wheeler, who killed Sheriff’s Deputy Wayne Koester and wounded two others.
Civil trial lawyers started the demand for expert witnesses in their lawsuits, Spivey said.
“It’s been around for awhile,” said Chief Assistant State Attorney Ric Ridgway. “It’s become a cottage industry of doctors testifying in trials."
Spivey says the bulk of the costs fall on the defense. The state doesn’t have to hire its own brain scan experts.
“It depends on the evidence.” Ridgway said. Sometimes there is a battle of experts.
Ridgway was the prosecutor in the case of convicted sex offender John Couey, who kidnapped and murdered 9-year-old Jessica Lunsford in Homosassa in 2005.
Dr. Wu was a defense expert in that case. So was a psychologist who testified that Couey had a “broken brain” from head trauma and heavy drug use.
Ridgway said he hired a radiologist who testified that the brain scan looked fine. Couey was convicted but died of cancer before he met the state’s executioner.
Ridgway said his boss, State Attorney Brad King, would have to talk about cost.
“There’s always a big pot of money up in Tallahassee that gets drained every year.”
Some lawyers like to run up the costs, he said. “Some do it so it gets so expensive you don’t want to litigate. They admit it,” Ridgway said.
“I’m not saying Spivey and those guys in Lake do it. They work to keep their costs down.”
For Graves and Spivey, there is no letup in sight. Two veteran assistant public defenders have retired and Spivey is training others to become death-penalty qualified.
“There’s only one of me,” he said.
In the meantime, the courts keep changing the rules and scientists are taking over the courtroom.