Monday, August 31, 2009

Dueling inmate plans set up spat in California

California's Assembly is setting up a clash with the Senate over sweeping changes to the state's criminal justice system in the two weeks before their planned Sept. 11 adjournment.

The Assembly was scheduled to take up a scaled down plan to address the state's overcrowded prisons Monday. If the Assembly plan passes, it would still leave California about $220 million short and with 10,000 inmates too many to meet its goals.

The Assembly's rejection of a broader plan passed by the Senate this month reflects a split between Democrats who control both legislative chambers.

Senate President Pro Tem Darrell Steinberg of Sacramento said he won't take up the plan negotiated by Assembly Speaker Karen Bass of Los Angeles unless the Assembly passes additional measures already approved by senators.

Republican Gov. Arnold Schwarzenegger joined the fracas last week, praising senators while criticizing assembly members for balking at trimming $1.2 billion from prisons after they earlier cut $10 billion from education.

"They don't have the guts now to make those decisions, because they are now more worried about safe seats than safe streets," he said in a conversation with the founders of Twitter at the company's San Francisco headquarters.

Senators backed Schwarzenegger's plan to reduce the prison population by about 27,000 inmates the first year and fill a $1.2 billion budget hole left over from the budget compromise he signed last month to bridge the state's massive deficit.

Steps included making some offenders ineligible for prison by reducing sentences for certain property crimes and allowing home detention with electronic monitoring for thousands of inmates who are over age 60, are medically incapacitated, or have less than 12 months left to serve.

Bass said neither of those provisions has enough support among Democrats to pass in her chamber because of objections from law enforcement organizations.

She stripped them out of the package and eliminated a powerful independent commission that would have recommended changes to the state's convoluted sentencing laws. She left in measures to free inmates earlier if they complete rehabilitation programs and reduce supervision for thousands of parolees, making it more difficult to send them back to prison for violations.

"We seem to have two versions of the Democrat party on law enforcement reform," said California State Sheriffs' Association legislative director Nick Warner, who has been trying to broker a compromise. "This is interesting because it's usually Republicans and Democrats far apart. This is Democrats and Democrats being far apart."

Democrats can pass the majority vote bills without Republican votes.

The bill passed the Senate without a vote to spare, but Bass said the dynamics are different in the Assembly because so many members face elections next year. They include three Democrats running for attorney general - Ted Lieu of Torrance, Pedro Nava of Santa Barbara and Alberto Torrico of Fremont - whose votes on a prison package could be used by opponents to portray them as soft on crime.

Bass said the emotion runs deeper than politics.

"When you are talking about crime, corrections, it's a visceral issue. What you're going to do is you're going to think of the latest homicide that happened," she said while postponing an earlier Assembly vote.

Her new plan would leave behind bars about 10,000 inmates who would be released under the Senate plan, creating a $220 million budget hole.

"We grasp the politics of the situation, but we're here to do a job and we're going to be short a couple hundred million dollars in balancing our budget. I hope the Assembly has some suggestions," said Sen. Mark Leno, D-San Francisco, who chairs the Senate Public Safety Committee.

The difference would be made up by closing a juvenile prison and in other areas of the budget, said Bass spokeswoman Shannon Murphy.

The administration had said its plan would also come close to meeting, over two years, a demand earlier this year by a special panel of federal judges that the state reduce the inmate population by 40,000.

"We've been playing with fire with the courts too long to allow us to have our knees buckle under us at this point," said Sen. Gloria Romero, a Democrat from Los Angeles who voted for the Senate plan.


Sunday, August 30, 2009

Task force criticizes proposed living restrictions on Broward sex offenders

A county task force is criticizing a proposal that would severely limit where sexual offenders can live in Broward.

County commissioners have been exploring a ban on sexual offenders from living within 2,500 feet of schools, parks, playgrounds, day care centers and school bus stops. The ordinance would apply only to the small part of Broward that is not in any city, but has become a flashpoint in a larger debate that such restrictions leave little place for sexual offenders to live.

Broadview Park is a small working class neighborhood no larger than a square mile, yet it is home to almost 100 sexual offenders. That’s because the neighborhood is one of the few remaining places for them to live in light of limits set by 24 of the county’s 31 cities.

According to the report distributed to commissioners last week, living restrictions can force sexual offenders to become homeless and thus harder to monitor. The task force said it found no evidence to indicate that the laws reduce abuse or prevent criminals from committing new offenses.

“Broward County commissioners are faced with an unenviable conundrum,” the task force concluded. “To eliminate the clustering of sex offenders in the unincorporated areas would require passing an ordinance similar to those in the majority of municipalities. The likely result of such an ordinance will be to increase the number of homeless and transient sex offenders throughout the county.”

The report concluded: “Clearly the best intentions do not always translate into the best practices.”

Commissioner John Rodstrom proposed the living restrictions earlier this year and plans to press ahead. He said the task force was skewed toward the viewpoint of sex offenders rather than the concerns of residents.

The commission will decide Tuesday whether to set a public hearing for Sept. 22 on Rodstrom’s proposal.

Commissioners in April issued an emergency ordinance that bars any more offenders from moving into Broadview Park or two smaller unincorporated neighborhoods. With 1,275 registered sex offenders in Broward, the demand for neighborhoods like Broadview Park is great.

The task force concluded that a 2,500-foot buffer zone would leave no homes available for sex offenders in unincorporated Broward.

Florida failing to meet mental health responsibilities

State funding for mental health and addiction services continues to fall in a shortsighted policy that fails to tackle problems before they escalate into far more costly outcomes.

When legislators descend on Tallahassee in the coming weeks to lay the foundation for next year’s regular session, they should bear in mind that Florida ranks 48th in mental health funding and 35th in alcohol and drug treatment funding — both abysmal national marks for a state 15th in per capita wealth.

When families in crisis cannot secure behavioral health services, they often end up in emergency rooms, behind bars or out on the streets.

And when budget cuts force the closure of hundreds of treatment beds throughout the state — including 39 beds at Manatee Glens — the societal problem intensifies.

While medical costs soar — witness the impassioned national debate over universal health care — mental health care funding drops. The state of Florida has not adjusted funding to account for medical inflation in more than two decades, according to Manatee Glens CEO Mary Ruiz.

At what cost?

This summer, Manatee Glens, the county’s hospital for mental health and addiction treatment, closed the Adolescent Recovery Center, for teenagers with substance abuse and mental health problems. Juvenile clients of the center, a residential unit with 16 beds that provided care for six to nine months, must now find services at a center in Sarasota.

Several other Manatee Glens units, which provide a lifeline to thousands of clients, are threatened — including the Children’s Crisis Unit, for those who are a danger to themselves or others, and the Walk-In Center, which serves uninsured families.

Manatee Glens, a not-for-profit institution, does not survive on state funding alone — the county and private money provide a significant share. But, Ruiz says, the state’s portion of the hospital’s annual budget has plunged from 85 percent to 55 percent during her 20-year tenure. The current budget stands at $25 million.

Ironically, Florida’s lone mental hospital, G. Pierce Memorial Hospital in Arcadia, closed in 2002 over a lawsuit that accused the state of shortchanging patients with fatal results — at least 10 patient deaths and injuries to others blamed on underfunding.

Upon closure, those patients were dispatched to various community mental health providers, and Manatee Glens received 26 clients and a promise of state funding. That money has evaporated during legislative budget cuts, and those 26 beds have been lost.

The Pierce lesson has been lost on the Legislature, as has the funding pledge. Are we doomed to repeat the past, with deadly results?

As Florida ponders spending hundreds of millions of dollars on new prison construction as the inmate population surges past 100,000, that question becomes all the more critical.

Earlier this year the Legislature failed to remedy that situation by not passing the Community Mental Health and Substance Abuse Treatment and Crime Reduction Act. The reform bill would have established mental health courts, pre-arrest jail diversion programs and law enforcement crisis intervention teams, among other measures.

Proponents, including the judicial, law enforcement and mental health communities, vow a reintroduction of the bill in the 2010 session.

According to the state Department of Children and Families, Florida spends some $250 million annually to pay for 1,700 forensic hospital beds for inmates with mental illness, and that expenditure is expected to double over the next decade.

Far more significant, though, is the number of inmates with mental illness — 17,000, and that, too, is forecast to double in 10 years. The projected cost for additional prisons, beds and services for that unfortunate growth is a staggering $3.6 billion.

Community-based treatment is key to keeping the mentally ill out of the justice system, the kind that Manatee Glens provides. That’s a more prudent and thrifty way of dealing with this particular problem.

But lawmakers should also address the broader issue, the entire spectrum of mental health services. Children, teenagers and adults should not be denied treatment for want of funding, else they, too, get caught up in the legal system or otherwise become a burden on society — by overcrowding emergency rooms or roaming the streets.

Even now, too many Manatee families are falling through the cracks. Ruiz says Manatee Glens serves one out of 30 families here, but with appropriate funding could help one out of 10.

The Legislature’s shortsighted policies of the past must be abandoned in favor of a big-picture, humanitarian vision.

Involving the late dog hander John Preston

John Preston and his dog Harass II during a press conference at the sheriff's office. (1983 FLORIDA TODAY file)

About the investigation
In an effort to examine the most serious cases involving the late dog hander John Preston, FLORIDA TODAY reviewed grand jury indictments for rape and murder in Brevard County from 1981 through 1984. The Clerk of the Court Office identified 20 such murder and sexual assault cases.

FLORIDA TODAY spent days combing through archived trial records, including witness lists, motions, depositions and trial transcripts, and identified 16 rape and murder cases in which Preston played a key role.Clerks blacked out certain information from sexual assault cases to shield victims' identities, per state law.Trial records detailed the techniques Preston used with his dogs to implicate suspects. They also revealed how prosecutors bolstered Preston's credibility as a witness and how defense attorneys ultimately discredited him.

Still in prison
Four men indicted for rape or murder in the early 1980s remain incarcerated largely in part to evidence developed by discredited dog handler John Preston.

Gary Bennett, convicted of murdering his neighbor in 1983, based largely on evidence provided by Preston's dog. His lawyers are trying to obtain DNA evidence that would confirm or deny his involvement.

Mark Wayne Jones pleaded guilty to a double murder and rape in 1981 to avoid the death penalty after Preston's dog placed him at the scene of the crime and detected his victims' scent in his car. Jones is doing two life terms, plus 15 years.

Frank Berry is serving a 124-year sentence for rape after Preston's dog tied Berry to the scene.

Gary Dirk is serving life in prison for a 1984 rape in Satellite Beach. Although Preston's testimony helped build the case, he never testified because the prosecution and defense agreed to keep him off the stand.

16 cases mired in dog handler's fraud

Evidence goaded false convictions, thwarted true ones


August 30, 2009

By his estimate, Pennsylvania dog handler John Preston worked more than 100 criminal cases for Brevard County police and prosecutors from 1981 to 1984, earning tens of thousands of dollars to link suspects to crimes.

Since then, Preston has been exposed as a fraud, and Florida has freed three imprisoned men since 1987, including accused rapist Wilton Dedge in 2004 and accused murderer William Dillon this year. Both spent more than two decades in prison before modern DNA tests showed that they couldn't have touched the evidence to which Preston's dogs had linked them.

Which raises the questions: How many others did Preston help convict in the early 1980s? And how did bad evidence from his tracking dogs influence the outcome of cases?

Of 48 grand jury indictments in Brevard during those four years, FLORIDA TODAY found 16 murder and capital sexual assault cases in which the dog handler testified or provided key evidence. Archived trial records revealed that Preston's tainted testimony mostly helped -- but sometimes hurt -- prosecutors:

In 13 cases, Preston's evidence linked suspects to the crime scene or to key evidence, helping prosecutors win convictions and long prison sentences. Four men remain in prison. Only an appeals court could determine whether the tainted evidence warrants a new trial or other remedy.

In three other cases, Preston's dubious methods left prosecutors' cases vulnerable. Defense attorneys quashed Preston's testimony, leading prosecutors to drop murder charges against two suspects and a jury to acquit one accused murderer who raped and killed again.

After Dedge's 2004 release, Brevard-Seminole State Attorney Norman Wolfinger -- a public defender during the Preston era -- asked his staff to review all cases of people still imprisoned because of Preston.

"The system is set up to make it difficult to convict an innocent person. This should rarely happen," said law professor Charles Rose of Stetson University in St. Petersburg. "But DNA evidence shows what we've said all along, that people are human, and humans are fallible."

Wolfinger ordered another review after a FLORIDA TODAY report on June 21 identified others convicted with Preston's help.

In an interview Thursday, Wolfinger said he is reasonably sure that many of those convictions would have held up without Preston. "I think Preston hurt the state in many cases," Wolfinger said.

Expert witness
Brevard investigators first employed Preston in 1981 on the recommendation of an Orange County sheriff's deputy who had used him in the murder investigation of an Eatonville postmistress.

Preston died last year.

Trial records show that Preston used two methods to link suspects to a crime:
"Man-trailing." Preston would allow his dog to sniff a piece of the suspect's clothing, then "man-trail" the scent from the crime scene to another location, usually the suspect's known residence.
"Scent lineups." After a sample sniff, the dog would "alert to" an article of the suspect's clothing or the murder weapon out of a lineup of five similar items. Often, the other items were brand new and bore no distinct scent.

The Brevard County Sheriff's Office brought Preston in on the 1981 double-murder and sexual assault of two teenage Titusville girls. Witnesses said Mark Wayne Jones picked them up at a Cocoa Beach nightclub and heard him talk about killing them. After sniffing one victim's shoe, Preston's dog Harass II alerted to her scent in Jones' 1973 Ford Pinto.

Preston didn't testify in court, but then-Assistant State Attorney Dean Moxley mentioned the dog evidence at the hearing in which Jones pleaded guilty to murder to avoid the death penalty, court transcripts show.

Subsequent convictions only bolstered the dog handler's credibility as an expert witness, trial records show. Moxley told a judge in a 1982 murder case that Preston had helped seal convictions in 10 other cases -- five of them murders -- and was recognized as an "expert tracker" by the 18th Judicial Circuit. Preston once testified that he had worked more than 100 cases in Brevard and more than 50 elsewhere in Florida.

"Our job was to try the case as best you could using the evidence you had," Moxley, now a circuit court judge, said Friday during an interview in his Titusville chambers.

Attacking credibility
Nearly from the start, defense lawyers -- in many cases, public defenders -- tried to discredit Preston as a witness by attacking his credentials and his dogs' training and inconsistent performance. They criticized Preston for leading his dog, giving foot signals, standing near scented items in lineups in which one item was obviously different from the rest.

Phyllis Riewe, an assistant public defender in 1981, was first to move to suppress Preston's evidence, in the rape trial of Frank Berry. She said the dog naturally picked an old nightgown from a lineup that otherwise included four brand-new nightgowns and couldn't help but pick the knife bearing the victim's blood from a lineup with other knives washed clean.

The judge denied that motion. Berry was sentenced to 124 years in prison.

"You need a mountain of evidence to show this witness was not credible," said Rose, the Stetson University professor. And even so, he cautioned, "a dirty witness doesn't mean an innocent defendant."

Prosecutors have a responsibility to ensure that evidence doesn't merely conform to preconceived notions, said George "Bob" Dekle, a criminal law professor at the University of Florida and a former prosecutor for the Third Judicial Circuit of Florida.

"You have to be wary," Dekle said. "You have to make dang sure it's the right evidence."

Second thoughts
Moxley continued to employ Preston as an expert, even as other prosecutors and law enforcement officers began to suspect that Preston was a fraud, trial records show.
Sam Bardwell, who prosecuted Frank Berry, testified in another man's appeal in 1987 that he had begun to suspect Preston after the dog handler refused to participate in a "scientific experiment" Bardwell recommended.

In another case, Preston's dog failed three times to call attention to anything in a "scent lineup" before it seemed to identify the murder weapons. Then it urinated on several towels marked as evidence from the crime scene.Preston's credibility collapsed in 1984, costing prosecutors a murder conviction. A jury acquitted defendant James Elmen, who later, in 1985, raped and killed a Jacksonville woman.

Convicted murderer Juan Ramos was acquitted on appeal in 1987.

Testifying at Ramos' appeal, ex-prosecutor Bardwell said discrediting Preston was a high point of his career. That testimony, plus detailed accounts of how Preston manipulated scent tests, helped unravel the state's case against Ramos. "You couldn't see any competency in the action of the dog," Bardwell said.

At the time, Moxley said, he had no reason to doubt Preston's credibility.
"If you believe you have evidence that is not reliable or tainted, you do not use it," Moxley said. "Today, I wouldn't use Preston."

Contact Schweers at 242-3668 or

Saturday, August 29, 2009

Ex-New Castle man faces death penalty

Jon Bandler

A single day in February 1994, when New Castle cops went to his parents' home four times on complaints he was acting up, captures what was wrong with Justin Grodin from adolescence through young adulthood.

He could not be controlled. He did not get along with his family. He was prone to violence.

But it only gave the slightest hint to just how dangerous he would become once he had his own family. Grodin abused his baby son in Arizona four years later. And while on the lam from those charges, he killed his infant stepdaughter in April 2000, burying her in a shallow grave near the condo in Fort Myers, Fla., where his parents had moved after leaving Westchester.

"Am I surprised it came to that? No, I’m not. He was a very angry individual,” said retired New Castle Police Chief Robert Breen, who dealt with Grodin for years as youth officer. “I’m saddened that it happened and that baby had to be a victim in all this. But I’m not so surprised.”

Grodin, now 35, is one step away from Florida’s death row after a jury convicted him of first-degree murder and recommended that he be executed by lethal injection. At a hearing tomorrow, his law-yer, J.L. “Ray” LeGrande, will try to convince Lee County Circuit Judge Edward Volz Jr. that a history of mental health issues makes life imprisonment more appropriate. The prosecution will counter that the jury got it right: The heinousness of killing the 11-month-old girl warrants the ultimate punishment.

Volz is expected to issue a written decision in his first death-penalty case. Under Florida law, the judge must give great weight to the jury’s recommendation.

Grodin’s mental competency was an issue for eight years before Volz ruled him fit for trial this year. There were several episodes of odd behavior by the defendant, who at one point during his wife’s testimony was booted from the courtroom. He had no supporters in court — his father, Burton, had died, his mother, Eileen, was in a nursing home and he is estranged from his brother, David.

Over the years, he maintained ties only with his father’s brother, Herbert Grodin, who questions whether it was Justin or his wife who killed the baby. But if Justin did it, he said, his psychological problems should keep him off death row.

“There’s a mental issue there that should predominate,” said the uncle, who lives in New Jersey. “I’m hoping for the best because that’s all I can do, but I am realistic. If they give the death penalty, it’s a misjustice. It would mean they haven’t taken into consideration the background and longtime history of illness.”

Growing up, Justin had no friends and often punched holes in walls when he got upset, Herbert Grodin said.

He had behavioral and psychological problems from early childhood, with teachers noting he isolated himself from others. He was in therapy for several years and educated in alternative programs in Chappaqua schools.

Breen met him in 1986, when Burton Grodin reported the 12-year-old was uncontrollable. Breen suggested getting a Person in Need of Supervision petition, but Burton was reluctant to have his son caught up in Family Court.

Over the next decade, while the family lived in Chappaqua and later in Millwood, police visits to the Grodins were routine.

In June 1988, Eileen Grodin, who was an alcoholic, tried unsuccessfully to kill herself. After taking 30 sleeping pills, she wrote a suicide note, addressing it not to her husband or eldest son, but to David, adding fuel to the brothers' sibling rivalry.

Over the next 18 months, Justin Grodin was admitted at least three times to psychiatric hospitals, and he later attended the Summit School, a residential treatment center in Nyack.

He enrolled at Long Island University, despite an evaluation suggesting “success in college is doubtful.”

Grodin dropped out after three semesters and lived in Shrub Oak after moving out of the Millwood home. His family got at least three orders of protection keeping him away.

Just after noon on Feb. 13, 1994, Eileen called police to report that Justin was beating up his brother. When police arrived, the parents simply asked that Justin leave.

They returned twice over the next several hours — first, when Eileen complained Justin was banging on the front door and smashing a small window, and later when she reported he had gotten inside, taken a camera and smashed it against the house. Both times, he fled into the woods. He was finally arrested later that night when they found him in the living room after another call from Eileen.

His last brush with New Castle police came Aug. 16, 1996, when he was arrested after going to the house, burning an order of protection and wrestling with cops.

He was back Oct. 9, when an argument erupted. Grodin pushed his father and punched him in the arm. By the time police arrived, he had fled. An arrest warrant was issued, but police never found him. There was another warrant when he failed to show up in court on the August charges.

By then he was in Arizona, and police suspect his parents helped him get there.

“Burton was enabling him, and that did make me upset,” Breen said.

Grodin began dating 19-year-old Mary Danielson. She never knew her father, and only went to school through the third grade. On Sept. 12, 1997, when Mary was already pregnant with their son, James, they wed in what his lawyer called a “spontaneous courthouse marriage” that brought together their years of accumulated baggage.

“That is the background to the formation of a perfect storm,” said LeGrande.

Grodin was arrested twice in Arizona on marijuana charges. In July 1998, he broke one of James' legs. The following month, the 4-month-old was admitted to a hospital with bleeding in the brain and four broken ribs.

While the couple were under investigation, Justin left for Florida. In early 1999, an Arizona grand jury indicted them on child abuse charges.

Gretchen was born that May — but it was revealed at Justin's trial that he was not the father. Mary later pleaded guilty and was sentenced to probation. In September 1999, Eileen Grodin sent her a plane ticket so she and Gretchen could join Justin in Florida.

Mary held a variety of jobs — under stolen IDs because she had violated probation by moving — and became pregnant again. In April 2000, she watched as Justin tried to get Gretchen to walk by standing her against his leg as he moved. When the baby fell, Justin yanked her up by her arm and hair. Mary told the jury she then heard a blood-curdling scream and a horrible thud and moments later Gretchen was lying on the couch, her eyes rolling up in her head.

For days after that, “she’d stare right through you, she was nonresponsive ... she was never the same,” Mary said.

But neither parent ever took the baby to a doctor, and Mary continued to leave her alone with Justin.

On April 26, 2000, she was working at McDonald's when Justin called to say there was a problem. She rushed home, and found her daughter lifeless on the floor. Justin said she had fallen off the couch, Mary said.

She wrapped her daughter in a blanket, put her in a garbage bag and placed her in a small tote bag. Justin tried to bury her nearby but couldn't. They went to sleep and the next morning they buried Gretchen across town near his parents' apartment.

The couple then took a bus to Seattle, where they were arrested in early May.

Mary Grodin was sentenced to 15 years in prison for child abuse, but that was cut to time served once she testified. The defense argued that she shared culpability and that she was a proven liar whose description of Justin's violence toward her and the baby could not be trusted.

Herbert Grodin said he visited the family in Florida once, and watched as his nephew feverishly stuffed food in Gretchen's mouth.

“I told him, ‘Justin, would you wait till she swallows the food?’ He slowed down. Then he sped up. He does not have the awareness. He doesn’t know what he’s doing,” the uncle recalled. “He comes across as smart and arrogant. But he’s a boy. He never grew up. How could he grow up without any normal experiences?”

Police who dealt with Grodin for years describe a manipulative young man who became violent when he didn't get what he wanted.

“He’s certainly the only one from here who has gone on to do something so serious that he’s facing the death penalty,” Breen said. “But it’s not about New Castle or Chappaqua. Certainly kids get in trouble here like they do everywhere, but they grow out of it. ... “He’s just one of those kids we couldn’t reach, couldn’t help. I wish I could have done more for him.”

Sheriff says Fla. inmate shot, killed by correction officer was trying to escape from jail

Fla. deputy shoots, kills inmate trying to escape

PALATKA, Fla. — Officials in Florida say a corrections officer shot and killed an inmate who tried to escape from jail by climbing a razor wire fence.

Sheriff Jeff Hardy says a deputy at the Putnam County Jail fired once at inmate Michael A. Campbell after he refused orders to stop, jumped from the top of a fence in the recreation yard and tried to run away Wednesday.

Hardy says the officers were just doing their job and that it was unfortunate someone had to die, but that was Campbell’s choice.

The 31-year-old was at the county jail so he could attend a custody hearing. He was serving 10 years sentence for kidnapping and other charges.

Two inmates escaped from the same jail in April by hiding a vehicle jack in their cell and using it to make their way out.

Jury: Fla. man guilty of woman's abduction, murder

(AP) – 19 hours ago
SARASOTA, Fla. — A jury has found a southwest Florida man guilty of kidnapping, raping and killing a 21-year-old mother of two who called 911 from his cell phone.

Michael King could face the death penalty. Jurors in Sarasota deliberated for just a few hours before finding the 38-year-old guilty. Lee was kidnapped from her home in January 2008 but investigators found no connection between her and King.

Prosecutor Lon Arend pointed to DNA evidence and a 911 call he said Lee made from King's cell phone screaming and pleading for her life.

It was one of several 911 calls about the abduction. One motorist who saw Lee struggling to escape was able to describe King's car and its location, but the call was never relayed to patrol officers.

King's attorney told the jury that his client did not kill Lee.

Convicted Killer Stays Silent At Hearing

Justin Heyne Will Faces Death Penalty In 2006 Slayings

POSTED: 3:24 pm EDT August 28, 2009
UPDATED: 3:46 pm EDT August 28, 2009
BREVARD COUNTY, Fla. -- A convicted murder refused to say anything Friday at his last hearing before he's sentenced in a triple murder.

Ben Hamilton, Sarah Buckoski and their 5-year-old daughter were killed by Justin Heyne in 2006. They were room-mates.

A jury has recommended death for Heyne, and today was his last chance to say why he should not die. He remained quiet.

The surviving families have different ideas of what should happen now.

"Our children have been taken, our children are gone, there's no way to bring them back," Sarah Buckoski's father, Dave Buckoski, said. "My personal feelings is this man needs to die, and he needs to die now."

Ben Hamilton's mother disagrees.

"If we would say yes, we want him to have the death penalty, then we would be just as bad as J.C.," Juanita Perez said.

The judge will sentence Heyne to either life or death. No sentencing date has been set.

Inmate found dead at St. Lucie County Jail

2009-06-02 13:54:05
St. Lucie County jail inmate Glenn Everett Hedrick, 54, was found dead in his cell early Tuesday morning. Sheriff Ken Mascara says he had a heart attack.

"Jail staff members called his cell by intercom at 4 this morning to awaken him for his scheduled blood-sugar test, but he did not respond,” Sheriff Mascara said. “Mr. Hedrick’s cell mate was unable to awaken him and called for a deputy. Jail medical staff performed CPR until St. Lucie County Fire Rescue Paramedics arrived at the jail.”

Paramedics pronounced him dead at 4:13 a.m.

An autopsy this morning determined that Mr. Hedrick died of a heart attack.

He suffered from a variety of ailments including diabetes, Sheriff Mascara said.

Hedrick’s arrests date back to 1973. His best known arrest was by the Fort Pierce Police Department on Nov. 7, 2008, for possession of a weapon by a convicted felon after he fatally shot a man who broke into his home.

His most recent arrest was on April 8, when the St. Lucie County Sheriff’s Office arrested him for trafficking in oxycodone, felony possession of marijuana and marijuana possession with intent to distribute.

Walter Moore: Death penalty as political theater

The first was a vigil at the Governor's Mansion, protesting the state of Florida's execution of John Richard Marek and remembering Adela Marie Simmons, the innocent victim for whose death John Marek was executed. My second was reading a story by Associated Press writer Brendan Farrington about what Gov. Charlie Crist did at the time of the execution, together with a follow-up column by Paul Flemming in the Tallahassee Democrat ("Death, politics mix with execution," Aug. 21).

I'll treat the second experience first. No one should be surprised if politicians consider the political implications of their actions. It's what politicians do — at least the successful ones. So it is not surprising that matters political would cross Gov. Crist's mind as he prepared for the execution of John Marek last Wednesday. But there are — or should be — limits. Last week, the governor went beyond the limits.

The AP writer was allowed to observe the Governor during the last few minutes of Mr. Marek's life. Reading this account, readers must have been struck by the care with which the event was staged for the reporter, with a statue of Jesus and pictures of the victim as appropriate props. Flemming noted that he had asked to observe Gov. Crist during an earlier execution and had been denied, Flemming said, "for what struck me as reasonable points." Flemming is not being unduly cynical when he concludes, "I should have saved my request until Crist was running for U.S. Senate." This was political theater. It involved shameful — and shameless — exploitation, both of John Marek and of Adela Marie Simmons. The complicity of the AP writer in this exploitation was also troubling.

The vigil at the Governor's Mansion at the time of the execution was a dignified service involving some two dozen people. We lit candles, sang, prayed, and read from the world's religious traditions, words that remind us that those traditions call the death penalty seriously into question.

Two of my candle-holding companions made a special impact that evening. William Dillon is one of at least 23 exonerated Floridians, people convicted for capital offenses and then released because their convictions were found to be wrong. The fact that Dillon and the others were released does not demonstrate that "the system" works; most were exonerated through the efforts of agencies outside the system. Thanks largely to one such agency — the Innocence Project of Florida — Dillon was set free on Nov. 18, 2008, after spending 27 years in Florida's prisons.

Mary Hardison, a second companion at the vigil, has been corresponding with John Marek for more than 20 years, writing him as a way of saying God doesn't forget even the most forgotten of the human family. Over the years, she learned much about what characterized Marek's life: neglect, abuse, being uprooted and moved from home to home to home, all of which helped produce depression and a feeling of worthlessness.

What she said at the vigil was neither a defense of his actions nor a declaration of his innocence. But it served to underline what we already know, that so many of those who end up on Death Row are among the least privileged of our neighbors, people upon whom society has long since turned its back.

Almost a quarter-century ago, former Gov. LeRoy Collins called the death penalty "Florida's gutter of shame." The word "shame" is even more apt today.

At a time when the list of countries that retain the death penalty is becoming ever shorter (China, Saudi Arabia and Iran are the countries with more executions than we in 2008); when countries with which we like to compare ourselves, such as the members of the European Union, have abolished the practice; when other states in the U.S. are eliminating capital punishment (New Jersey, New York and New Mexico being the most recent examples); when the numbers of exonerations are increasing the public's justified fear that we may be executing innocent people; when the American Bar Association in its latest assessment again found serious flaws in Florida's administration of capital punishment, and repeated its call for a moratorium on executions in our state; at a time like this, it is shameful for our state — which leads the nation in the number of people released for being wrongly convicted — to continue with business as usual.

It is equally shameful that our governor, or any political leader in Florida, should think it is in his political interest to advertise his association with the death penalty.


Saturday, August 22, 2009

The arbitrary Florida death penalty

CASE NO. 09-61231-CIV-Ungaro

Secretary, Florida
Department of Corrections
Attorney General
Additional Respondent.

COMES NOW the Petitioner, JOHN RICHARD MAREK, by and
through his undersigned counsel, and herein moves this Court
for a certificate of appealability in the above-captioned
case. In support thereof, Petitioner states:

1. On April 19, 2009, there were over 50 death
sentenced individuals on Florida’s death row who were
eligible for a death warrant in that their first round of
post conviction litigation had been completed in state and
federal court and the either had no litigation pending
Case 0:09-cv-61231-UU Document 13 Entered on FLSD Docket 08/15/2009 Page 1 of 11
anywhere, or they had successive litigation pending in state

The death sentenced individuals on the list
Gary Alvord;
Richard Anderson;
Jeffrey Atwater;
Chadwick Banks;
McArthur Breedlove;
Jim Eric Chandler;
Oba Chandler;
Loran Cole;
Danny Doyle;
Charles Finney;
Charles Foster;
Konstantinos Fotopoulose;
John Freeman;
Guy Gamble;
Louis Gaskin;
Olen Gorby;
Robert Gordon;
Marshall Gore;
Martin Grossman;
Jerry Haliburton;
Robert Hendrix;
John Henry;
Paul Howell;
James Hunter;
Etheria Jackson;
Edward James;
Ronnie Johnson;
David Johnston;
Randall Jones;
William Kelley;
Gary Lawrence;
Ian Lightbourne;
John Richard Marek;
John Marquard;
Sonny Boy Oats;
Dominick Occhiccone;
Norman Parker;
Robert Patten;
Daniel Peterka;
Case 0:09-cv-61231-UU Document 13 Entered on FLSD Docket 08/15/2009 Page 2 of 11

1Respondents did not challenge the accuracy of this
list which was set forth in Mr. Marek’s petition. Response
at 67.

2The statute providing for a continuous warrant was
adopted in 1996. It was not the law when Mr. Marek received
death warrants in 1988 (before any post conviction
litigation had even commenced) and in 1989 (after the state
post conviction process had been completed, but before a
Kenneth Quince;
Paul Scott;
Richard Shere;
Kenny Stewart;
William Sweet;
Melvin Trotter;
William Turner;
Manuel Valle;
William Van Poyck;
Peter Ventura;
Anthony Wainwright;
Robert Waterhouse;
Johnny Williamson;
William Zeigler.

This list is not exhaustive.1 There were still others who
were in the same posture.

2. On April 20, 2009, with no explanation and with no
advance notice to Petitioner or his counsel, the Governor of
Florida selected two names from this list, John Richard
Marek and David Johnston, for execution. On April 20th, Mr.
Marek received a continuous death warrant setting his
execution for May 13, 2009. Under Florida law, the
continuous death warrant remains in effect until Mr. Marek
is either executed or his death sentence is vacated.2 Even
Case 0:09-cv-61231-UU Document 13 Entered on FLSD Docket 08/15/2009 Page 3 of 11
federal habeas petition had even been filed).

3In their Response to the habeas petition, Respondents
inexplicably state: “Marek was treated the same as
Rutherford, Glock and Bundy, and all other named death row
inmates listed in his pleading.” Response at 73.
Respondents refuse to recognize that unlike Mr. Marek who
has an execution scheduled, and Mr. Rutherford, Mr. Glock
and Mr. Bundy who have been executed, all of the other
listed death row inmates are alive with no continuous death
warrant in effect and no scheduled execution date.
Marek has not been treated the same as those with whom he
had an identical status on April 19, 2009.
though Mr. Marek received an indefinite stay of execution on
May 11, 2009, from the Florida Supreme Court, the continuous
warrant remained in effect. When the Florida Supreme Court
vacated the stay on July 16, 2009, the Governor, as required
under Florida law, rescheduled the execution for August 19,

3. In the nearly four months since April 20, 2009,
until today, those who had been on the list on April 19th
along with Mr. Marek, remain on the list and have had no
death warrant and no scheduled execution facing them.
Respondents have not just offered no explanation for why Mr.
Marek and David Johnston received death warrants on April
20th, they have denied that receiving a death warrant and an
execution date is any different treatment than not receiving
a death warrant and an execution date.3

Case 0:09-cv-61231-UU Document 13 Entered on FLSD Docket 08/15/2009 Page 4 of 11
4. Respondents do not contend that Mr. Marek’s death
sentence was the oldest on the list and that was why he
received a death. This contention cannot be made because a
number of individuals on the list received a death sentence
before Mr. Marek received his, and similarly many of the
individuals were convicted of crimes that occurred before
the one serving as the basis for his sentence of death.

5. Respondents offered no explanation for why Mr.
Marek received a death warrant on April 20th while more than
50 other similarly situated death sentenced individuals did
not because no explanation exists. The best that can be
said as to the basis for the obviously different treatment
on April 20th, is that the basis for that distinction is a

6. On August 13, 2009, this Court rejected Mr.
Marek’s challenge to his sentence of death in which he
argued that the process for selecting him for execution on
April 20th was arbitrary and capricious and tantamount to a
lottery in violation of Furman v. Georgia, 408 U.S. 238

7. In rejecting Mr. Marek’s claim, this Court first
addressed whether the claim fit within the category of
claims that could be presented in a technically successive
Case 0:09-cv-61231-UU Document 13 Entered on FLSD Docket 08/15/2009 Page 5 of 11
petition, but not be barred because the claim was not ripe
at the time of a first habeas petition was presented. This
Court recognized that Mr. Marek relied upon the recent
decision in Panetti v. Quarterman, 551 U.S. 930 (2007), as
authorizing the presentation of his claim at this time.
This Court even acknowledged that “the meaning of ‘second or
successive’ in the AEDPA after Panetti is not entirely
clear” before rejecting Mr. Marek’s claim for lack of
jurisdiction. Order at 5.

8. Despite dismissing Mr. Marek’s petition on
jurisdictional grounds (meaning that his claims did not fit
into the Panetti exception), this Court proceeded to
alternatively address Mr. Marek’s claim on the merits. This
Court concluded that the Florida Supreme Court’s decision
rejecting the claim “was not contrary to, nor did it
unreasonably apply, ‘clearly established Federal law, as
determined by the Supreme Court of the United States.’”
Order at 8. In the course of addressing the merits of Mr.
Marek’s clemency claim, this Court did indicate that it
“does not wholly embrace the Florida Supreme Court’s view of
Woodard.” Order at 7, n. 10. So even though this Court did
not find the Florida Supreme Court’s decision was “contrary
to” or an “unreasonable application” of United States
Case 0:09-cv-61231-UU Document 13 Entered on FLSD Docket 08/15/2009 Page 6 of 11
Supreme Court, it did refuse to find the decision to be
consistent with or a proper application of United States
Supreme Court precedent.

9. Mr. Marek has now filed a notice of appeal seeking
to obtain appellate review of this Court’s decision.
However before such an appeal can be heard by the Eleventh
Circuit, Mr. Marek must obtain a certificate of
appealability. In this application he requests that this
Court issue a certificate of appealablity because as this
Court recognized the law as to the effect of Panetti is
unclear and the Florida Supreme Court’s reading of United
States Supreme Court as to Mr. Marek’s claim cannot be
embraced by this Court.

10. The standard for issuing a certificate of
appealability is “materially identical” to the standard for
issuing a certificate of probable cause under the pre-AEDPA
regime. Hardwick v. Singletary, 126 F. 3d 1312, 1313 (11th
Cir. 1997). A certificate of appealability should be issued
if the petitioner makes “a substantial showing of the denial
of a constitutional right.” Miller-El v. Cockrell, 537 U.S.
322 (2003); Barefoot v. Estelle, 463 U.S. 880 (1983). While
the severity of the penalty is not by itself sufficient to
warrant the automatic issuance of a certificate of
Case 0:09-cv-61231-UU Document 13 Entered on FLSD Docket 08/15/2009 Page 7 of 11
4See also Songer v. Wainwright, 605 F. Supp. 686 (M.D.
Fla. 1985) (granting certificate of probable cause where
court’s determination of issue may be debatable among
jurists of reason and where petitioner in capital case
should be provided the opportunity to urge the issues on

5Certainly, this Court recognized that Panetti left the
controlling law unclear as to its jurisdiction to hear Mr.
Marek’s habeas petition. Jurists of reason may of course
disagree when the law is unclear.
Similarly, this Court’s discomfort with the Florida
Supreme Court’s reading of United States Supreme Court
precedent as to the merits of Mr. Marek’s claim, also
appealability, “[i]n a capital case, the nature of the
penalty is a proper consideration in determining whether to
issue a certificate of probable cause.” Barefoot, 463 U.S.
at 893 n.4.4

11. The question of whether a COA should issue is not
the same as whether the issues to be raised in the appeal
would prevail on the merits. Barefoot, 463 U.S. at 893 n.4.
Under 28 U.S.C. Sec. 2253, a petitioner seeking a COA “need
only demonstrate ‘a substantial showing of the denial of a
constitutional right.’” Miller-El, 537 U.S. at 327. “A
petitioner satisfies this standard by demonstrating that
jurists of reason could disagree with the district court’s
resolution of his constitutional claims or that jurists
could conclude the issues presented are adequate to deserve
encouragement to proceed further.”5 Id. Thus, “[t]he COA
Case 0:09-cv-61231-UU Document 13 Entered on FLSD Docket 08/15/2009 Page 8 of 11
demonstrates that there this Court recognizes that there is
room for jurists of reason to disagree.
inquiry asks only if the District Court’s decision [is]
debatable.” Miller-El, 537 U.S. at 348.

12. The Supreme Court has explained that the COA
inquiry “requires an overview of the claims in the habeas
petition and a general assessment of their merits.” Miller-
El, 537 U.S. at 336. Conducting “an overview of the claims
in the habeas petition and a general assessment of their
merits” makes it clear that Mr. Marek should receive a COA
so that his appeal can be heard by the Eleventh Circuit.

13. Where this Court expressed discomfort with the
Florida Supreme Court’s reading of United States Supreme
Court precedent in addressing the merits of Mr. Marek’s
claim, if other reasonable jurists had concluded that the
discomfort amounted to a failure by the Florida Supreme
Court to reasonably apply federal law, then the decision is
not entitled to any deference in federal habeas proceedings.
In Panetti v. Quarterman, 127 S. Ct. 2842, 2858-59 (2007),
the Supreme Court explained:
Under AEDPA, a federal court may grant habeas
relief, as relevant, only if the state court’s
“adjudication of [a] claim on the merits . . .
resulted in a decision that . . . involved an
unreasonable application” of the relevant law. When
Case 0:09-cv-61231-UU Document 13 Entered on FLSD Docket 08/15/2009 Page 9 of 11
a state court’s adjudication of a claim is dependent
on an antecedent unreasonable application of federal
law, the requirement set forth in § 2254(d)(1) is
satisfied. A federal court must then resolve the
claim without the deference AEDPA otherwise
requires. See Wiggins v. Smith, 539 U.S. 510, 534,
123 S. Ct. 2527, 156 L. Ed. 2d 471 (2003)
(performing the analysis required under
Strickland’s second prong without deferring to the
state court’s decision because the state court’s
resolution of Strickland’s first prong involved an
unreasonable application of law); id., at 527-529,
123 S. Ct. 2527, 156 L. Ed. 2d 471 (confirming that
the state court’s ultimate decision to reject the
prisoner’s ineffective-assistance-of-counsel claim
was based on the first prong and not the second).
See also Williams, supra, at 395-397, 120 S. Ct.
1495, 146 L. Ed. 2d 389; Early v. Packer, 537 U.S.
3, 8, 123 S. Ct. 362, 154 L. Ed. 2d 263 (2002) (per
curiam) (indicating that § 2254 does not preclude
relief if either “the reasoning [or] the result of
the state-court decision contradicts [our cases]”).
(Emphasis added). See Smith v. Secretary, Dept. Of Corr.,
2009 WL 1857302 (11th Cir. June 30, 2009). Thus, if the
Florida Supreme Court unreasonably applied federal law, its
rejection of Mr. Marek’s claim is entitled to no deference
and his claim is subject to plenary review in these federal

14. Under these circumstances, a certificate of
appealability should issue.
Case 0:09-cv-61231-UU Document 13 Entered on FLSD Docket 08/15/2009 Page 10 of 11

WHEREFORE, the Petitioner, John Richard Marek, applies
to this Court for the reasons stated herein for the issuance
of a certificate of appealability as to this Court’s
decision of August 13, 2009.

Respectfully submitted,
/s/ Martin J. McClain
Fla. Bar No. 0754773

Fla. Bar No. 102857
McClain & McDermott, P.A.
Attorneys at Law
141 N.E. 30th Street
Wilton Manors, Florida 33334
Telephone: (305) 984-8344
FAX: (954)564-5412
Attorneys for Petitioner

I HEREBY CERTIFY that a true copy of the foregoing
Motion has been furnished by electronic service to Carolyn
Snurkowsi, Assistant Deputy Attorney General, Office of the
Attorney General, The Capitol - PL - 01, Tallahassee, FL
32399-6536, on this day of August, 2009.
/s/ Martin J. McClain
Case 0:09-cv-61231-UU Document 13 Entered on FLSD Docket 08/15/2009 Page 11 of 11

Paul Flemming: Death, politics mix with execution

Paul Flemming: Death, politics mix with execution

Paul Flemming

Capital Ideas

The state of Florida, on behalf of me and you, executed John Richard Marek on Wednesday for the 1983 murder of Adela Marie Simmons.

He was the fourth condemned man executed under a death warrant signed by Gov. Charlie Crist, and it was the 68th execution in Florida since 1979.

There are 389 men and one woman on Florida's Death Row, waiting for the state to mete out its court-sanctioned, publicly supported justice. If current averages hold, each will spend more than 12 years on Death Row before the sentence is carried out.

Marek was executed 26 years after his crime.

I've witnessed two executions. Neither disturbed me as specific events — I was taken only by the extreme efforts to make the executions palatable to observers; the antiseptic protocol followed to deliver a series of drugs, only a third of which actually kill. The other two-thirds mask what's going on to diminish unsightly death throes and unwanted utterances.

I oppose the death penalty for my own personal reasons, but also as a matter of unsound policy.
Whatever arguments may be made about delivering justice are diminished to the vanishing point by the decades it takes to carry out the sentence. The executions I attended were for crimes committed more than a quarter-century previous. That very delay eliminates deterrence as a convincing argument for capital punishment.

Further, they both had been previously stayed at the final moment — the two condemned men had the needles in their arms, were strapped onto gurneys and minutes away from death when courts stepped in to delay the executions for a couple weeks.

That's torture. And I don't mean exclusively for the condemned.

But it's not about policy. It's about politics.

On Wednesday, Crist allowed an Associated Press reporter to sit in his office with him as the execution was carried out. I'm glad to have the insight provided by that report.

When I interviewed Crist in 2008 on the day of the first execution carried out by the stroke of his pen, he spoke simply, solemnly and sincerely of justice and duty. He'd been a witness at an execution as a state senator to give him insight as a lawmaker, and later as attorney general.
Crist's first death warrant as governor — for the execution of Mark Dean Schwab, a child rapist and murderer from Brevard County — was notable in part because it was the first after nearly two years of a moratorium to address legal challenges to the state's methods.

I requested to watch Crist and his team at work during the execution. That didn't fly, for what struck me as reasonable points. It was a sober moment and there were important legal matters to attend to. I'd be in the way, I was told.

I should have saved my request until Crist was running for U.S. Senate.

No foreclosure respite

Florida's courts, underfunded and overwhelmed in good times, are awash in foreclosures.
It's going to get worse before it gets better.

A report delivered Aug. 17 by the Florida Supreme Court's task force on the crisis is frightening reading.

The lack of resources is evident even in the report's own making: "First, there was no budget or ability to travel." Well, then.

An interim report was filed back in May. "The situation has grown increasingly grim since that filing."

The judges, lawyers, bankers, academics and government officials are not engaging in hyperbole when they write, "The latest news for Florida is horrifying."

Florida had 988,480 foreclosures begun in the first quarter of this year.

"The flow of foreclosure cases and homes in the Florida pipeline to foreclosure filing shows only signs of increasing," is one nasty, accurate conclusion.

Mediation and improved case management to speed the flow of cases — already more efficient than in the past by necessity, but not keeping up with the floodwaters — are the recommendations of the task force.

Financial justice, too, will be delayed in Florida for some time to come.

Paul Flemming is the state editor for Gannett's Florida newspapers and Contact him at or 850-671-6550.

John Richard Marek's last words were "Jesus, remember us sinners"

By Tonya Alanez South Florida Sun Sentinel
9:30 p.m. EDT, August 19, 2009

STARKE - After 25 years on Death Row, John Richard Marek was dead within 13 minutes of receiving a lethal dose of chemicals Wednesday evening for the murder of a widowed mother of two whose brutalized body was found in a lifeguard shack on Dania Beach-
As the poisons flowed into his arms, Marek, 47, a hulking, ashen man, did not flinch, twitch or spasm.
Strapped to a gurney and draped in a white sheet in the fluorescent-lit, white-walled death chamber at Florida State Prison, the convicted killer simply appeared to drift into unconsciousness, his eyelids growing heavy, his mouth agape.
"Jesus, remember us sinners," were his final words before reciting the Lord's Prayer.
It was the 68th execution in Florida since the death penalty was reinstated in 1979, but only the second execution out of Broward County in that time.
Marek, originally from Fort Worth, Texas, followed the botched electric-chair execution of Jesse Tafero, 43, a convicted cop killer, who had flames and smoke shoot from his head during his 1990 execution. It took three jolts of 2,000-volt electricity to kill him.
Twenty-six witnesses — including the victim's family and friends, prison officials and journalists — gathered to observe Marek's scheduled 6 p.m. execution.
Delayed by 20 long minutes to await word from the courts on Marek's final appeals, the observers, seated on metal-frame chairs and packed shoulder to shoulder, sat in solemn silence but for the heavy hum of a wall air-conditioning unit.
Meanwhile, about 20 death-penalty protesters gathered across the road from the prison. They sang songs. They rang a bell. They stood on the grass in a moment of silence.
At 6:20 p.m. the brown curtain rose from the large rectangular window separating the observation area from the death chamber, revealing Marek supine on the gurney, his arms at his sides, secured by padded brown wrist cuffs and intraveneous tubes taped into place. His open-palmed hands were wrapped in white gauze.
A prison warden hung up the phone to the office of Gov. Charlie Crist, and gave the go-ahead.
Marek, who had testified that he was incapable of murder, lifted his head, smiled and mouthed a few words to an Episcopalian minister seated in the front row whom he'd met with earlier in the afternoon. He then uttered his final words.
Four minutes later, following the first injection, the warden tested Marek to verify that he had lost consciousness, brushing his hand across the condemned man's eyelashes.
Next came an injection to paralyze, followed by another to stop Marek's heart.
Marek — who was convicted of the first-degree murder of Adela Marie Simmons, a Barry University administrator, in 1983 — was pronounced dead at 6:33 p.m., 13 minutes after the first of the three injections entered his blood stream.
The nude, bruised, strangled and raped body of Simmons, 45, was found June 17, 1983. The night before she had left her best friend, Jean Trach, behind in her broken-down car on Florida's Turnpike in Martin County to take a ride with Marek and Raymond Wigley to get help.
Simmons' two daughters – Vivienne Yao, of Miami Shores, and Aileen Simmons Bantau, of Austin, Texas – did not attend the execution.
But Alan Bantau, a son-in-law Simmons never met, and Trach's son and daughter, Andrei and Tanya, watched Marek's last moments from center seats in the front row. Tanya Trach clasped hands with a victim's advocate.
After the execution, Bantau, 48, read remarks prepared by his wife and her sister.
He spoke of the grueling 25-year wait for justice and closure, and the desire to have Simmons remembered as the vibrant woman she was in life, rather than a victim defined by the grisly circumstances of her death.
"Nothing prepares you for losing someone you love in such a horrible manner," Bantau said.
A native of Yugoslavia, who fled to Venezuela at age 9 with her parents after World War II, Simmons was a petite lover of the beach, parties, golf, football, dance and movies. Easy to make friends, a lover of laughter, an ambitious traveler. A friend and a mother.
"I have no pity for the animal that was executed this evening," Andrei Trach, 48, said afterward. "He got off easy. He's with his maker and his maker's wrath. I pray God show no pity on his soul."
Filing legal appeals up until the last minute, Martin McClain, the Wilton Manors attorney who spent 21 years trying to spare Marek's life, did not attend the execution.
For his final meal, Marek was given, at his request, a bacon, lettuce and tomato sandwich with mayonnaise on wheat bread, onion rings, French fries, blueberries and strawberries with whipped cream, and a Dr Pepper.
His body was removed from the prison Wednesday in a white hearse. After an autopsy, it will be given to a friend for burial.
Tonya Alanez can be reached at or 954-356-4542.

Friday, August 21, 2009

Executing John Marek for Senate

Seth — August 20, 2009 @ 4:16 PM —

When I was looking for coverage of John Marek’s execution yet to see if there were any complications with the lethal injection, I ran across one of the more disgusting news stories I have ever seen.

Governor Charlie Crist, who is running for U.S. Senate against arch-conservative and hero of the far right Fmr. House Speaker Marco Rubio, allowed the AP into his office so we can all get a first hand look at what goes on in the 48 minutes leading up to an execution.

Gov. Charlie Crist silently held two framed photos of Adela Marie Simmons as a voice came over his speaker phone Wednesday evening, telling him the next in a series of eight syringes was being injected into the arm of the man who killed her.Crist’s office was silent except the whir of the air conditioner as his chief of staff and three members of his legal team sat and listened with him for each update in the execution of John Richard Marek.

After the last syringe was injected, the voice said, “Team leaders have a flatline” and a few seconds later, “The doctor has confirmed he is deceased. Time of death 6:33.”

The article goes on to detail, minute by minute, the process of finding out whether the appeals have all been denied and the gruesome intricacies of the actual execution.

I am imagining the moment when a young, intrepid PR person in the Executive Office of the Governor conceived this half-baked idea over a martini at Cafe Cabernet. When selling it to the Governor, they likely told him that this will appease the victim’s rights crowd, appear transparent, show the electorate some intrigue and suspense since they enjoy those cop dramas so much, and, most importantly, demonstrate to the hard right, the folks he needs to win the Senate primary, that he is tough enough to kill someone. But this really just fell flat, not just for folks who oppose the death penalty but likely for the majority of the electorate who already sees this Governor as an unprincipled politician who puts political expediency ahead of every thing else and, this case, common sense.

No one really thinks for a second that Charlie Crist or anyone in government gives a hoot about Adela Simmons or her family. Her pictures are nothing more than props in a movie scene where the Governor and his staff are the main characters and the AP is behind the camera yelling “ACTION!” His comments about her being a “beautiful lady” appear completely contrived. Would they be trying to get mileage off a photo opportunity if the victim was a busted, cracked out prostitute, yet heinously murdered? Well, you know the answer to that one.

There is no doubt that the death penalty is divisive issue and that no matter what a governor does, a subset of the electorate will always feel aggrieved by the decision whether or not to execute a capital inmate. But any sane person would recognize that this kind of macabre, kabuki theater unnecessarily politicizes and trivializes what is likely the most serious act a governor partakes in and, frankly, is beneath any governor, including Charlie Crist.

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Wednesday, August 19, 2009

This is what you want to kill, Florida

John Marek's life history is a pathetic, heart-wrenching story of childhood trauma, abandonment and neglect. At the age of ten, he told a mental health evaluator, "He wants to change from being a boy who is sad all the time to being a boy who is happy all the time" (App. L, p. 6, previously filed, specifically and fully incorporated).

This sad little boy was born in Germany to an emotionally unstable mother who took large amounts of tranquilizers and diet pills during her pregnancy and to a largely absentee father, who spent great periods of time away from home serving in the military. At the age of eight or nine months, John overdosed to the point of convulsions when his older brother fed him some of his mother's medication. Doctors said his mind would forever be affected by this overdose, and his childhood development of such skills as walking and talking was markedly slow. Labeled a "retard" throughout his childhood, John was rejected by his disappointed father and inadequately fed and clothed by his neglectful mother.

Unable to speak intelligibly and suffering from constant enuresis, he was ridiculed by his peers. His parents divorced when he was seven years old. His mother remarried an alcoholic who spent the family money on liquor and who continued the rejection John had experienced since he was a baby. Despite the constant rejection, John was a loving child and tried again and again to seek affection, only to be rejected again and again. After a particularly violent family altercation, in which John came close to being shot by his stepfather, John's mother decided to give up her children. John's brothers went to live with their father, who refused to take John -- age 9, labeled a "retard", unable to speak.
Thus, at age nine, John Marek was placed in the custody of the Tarrant County, Texas, Child Welfare Unit, and began his trek through child welfare institutions, foster homes, and psychological evaluations. Incredibly, psychological testing done at that time revealed John was not retarded but of normal intelligence. However, psychological reports indicated, John had not been able to develop normally because of cerebral dysfunction, deep feelings of inadequacy, and emotional deprivation. Over the ensuing years, psychological and child welfare reports continued to note John's emotional difficulties, his frustration and anger at his natural parents and stepfather, his learning disabilities resulting from psychological and neurological problems, his enuresis, and his feelings of inadequacy and rejection. After passing through at least four foster families, at the age of 12, John was sent to a residential treatment facility, paid for by his father's insurance. John received various kinds of therapy and responded well, beginning to exhibit some emotional stability and academic progress. However, when the insurance company terminated the funding for this placement, John was returned to his foster family, despite the treatment facility's pleas for continued funding, warnings that John's emotional and neurological disabilities required continued, intensive residential treatment, and prediction that removing John from residential treatment would destroy all the progress he had made. After living briefly with his foster family, John was again placed in an institution, where psychological testing revealed that his previous progress had been lost. His scores on intellectual testing had plummeted, the result, evaluators noted, of organic brain damage and emotional disabilities. After about two years in this institution, John was again returned to his foster parents, who washed their hands of him four months later. Following a brief stay in a shelter, John was placed in yet another foster family. He was then seventeen years old, and heavily involved in drug use. A few months later, John was convicted of credit card abuse and placed on probation. After John violated his probation, a competency evaluation noted his limited intellectual capacity, possibly resulting from brain dysfunction, and recommended drug treatment in a structured environment, stating that intervention could well reshape John's behavior. No treatment was provided, and John was sentenced to serve two years in the Texas Department of Correction. After his release from prison, with nowhere to go, John resumed his drug and alcohol abuse. At age 21, he traveled to Florida with Raymond Wigley. Drinking heavily, the two were arrested for murder shortly after arriving in Florida.
Mr. Marek's capital sentencing jury did not hear any evidence regarding Mr. Marek's sad childhood, which had just barely concluded before he was charged with this offense. The only reason the jury heard none of this evidence is trial counsel's failure to investigate and prepare for the penalty phase. Had trial counsel conducted the appropriate investigation and discovered the readily available information summarized above, he would have presented that information at the penalty phase, as he testified at the state evidentiary hearing:
Q. If you had had Mr. Marek's mother willing to testify that she had abandoned her son and was sorry, is that something you would have wanted to present?
A. I would have put her on the stand for sure. If she was willing to come here and testify to that, I would have put her on.
* * *
Q. If you had written documents to establish the history?
A. Sure. Potential mitigating factors and there's no way it's going to come back to hurt me. Sure, want to put that on.
Q. In this case, do you recall whether the jury had any background information presented to them on Mr. Marek?
A. Just what they got in the guilt phase through his testimony.
(PC-T. 395-96).
Defense counsel had a duty to independently investigate Mr. Marek's background and history in order to determine whether any mitigating evidence was available from that background. At the previous hearing, counsel testified that he made no effort to discover whether he could obtain records from Texas regarding Mr. Marek having been in custody of the state as a child (PC-T. 317), although he knew Mr. Marek had been in foster care (PC-T. 321-22), and had information that when Mr. Marek was a toddler, "his natural father left the family and his mother remarried, this time to an abusive alcoholic. At age nine [Mr. Marek] was turned over to the State [of Texas] and lived in a variety of foster homes until striking out on his own at age 17" (App. H, previously filed, specifically and fully incorporated). Thus, counsel did not find court records from Texas which said Mr. Marek was declared "a dependent child based on neglect" (PC-T. 326). Counsel also made no effort to obtain Texas prison records (PC-T. 336) or court records (PC-T. 337), although he knew that Mr. Marek had been in prison in Texas (PC-T. 336), and had a print-out in his file which revealed Mr. Marek's Texas inmate number (App. I, previously filed, specifically and fully incorporated). Counsel also made no effort to check out the address on Mr. Marek's Texas driver's license (PC-T. 320), although he had a copy of that license in his files (PC-T. 319; see also App. I, previously filed, specifically and fully incorporated).
Had counsel taken any one of these simple steps, the information detailed above would have flooded in. For example, records from the Texas Adult Probation Department contain a life history of Mr. Marek (App. F, previously filed, specifically and fully incorporated). This life history explains that Mr. Marek was placed in the custody of the Texas Department of Human Resources in October, 1970, and lists the names of the special schools Mr. Marek attended (Id., previously filed, specifically and fully incorporated). With this one document, defense counsel would have had enough specific information to unearth the 99 pages of documents contained in the files of the Texas Department of Human Services (see App. D, previously filed, specifically and fully incorporated).
Similarly, had defense counsel checked the address on Mr. Marek's driver's license, he would have discovered that the address was that of Sallie and Jack Hand (PC-T. 239), Mr. Marek's last foster parents (PC-T. 241), who lived at the same address at the time of Mr. Marek's trial (PC-T. 245). They were never contacted by defense counsel (PC-T. 244-45, 320, 322-33). Defense counsel testified he never "independently" checked out the address on Mr. Marek's drivers license and therefore he had "[n]o idea" whether that address would have led to Mr. Marek's foster parents (PC-T. 320). He further testified that he "[o]bviously" did not know what information the foster parents would have led him to because "I never talked to them" (PC-T. 323). Having been foster parents themselves, the Hands of course could have directed defense counsel to the appropriate state agency for information regarding Mr. Marek.
Defense counsel's excuse for failing to take these simple steps was that he got the "impression" that Mr. Marek did not want defense counsel to go to Texas (PC-T. 333), although Mr. Marek did not refuse to cooperate with defense counsel: "he dealt with me as much as I wanted to. . . .[He was] there to answer my questions" (PC-T. 334). Trial counsel testified that he also had difficulty in getting Mr. Marek to understand what was at stake:
Q Did you specifically go through, say, any recognized nonstatutory mitigating factors in Florida and say this is what I'm looking for?
A I'm sure I said I'm looking for -- You see, when I was dealing with John I don't think he was -- he was very flat. He had no -- he had very little emotion about it. Not the case but our relationship. He was not -- He wouldn't get angry at me for the case not going well nor would he be happy if a motion was granted. It rolled right off him.
In that respect when I talked to John about it I didn't get the feeling that he was concerned. I couldn't get him to be concerned with it. I couldn't get him to be understanding of what I needed when I talked about psychiatric background. Did he have problems? He gave me the impression that he didn't want me to go to Texas and that may have been my impression but that was it.
(PC-T. 333). Although Mr. Marek "wanted the end [of the trial] to be positive," he did not understand the process necessary to reach that end: "I don't think he saw the short-term goals. I don't think he saw each little task as having a good effect upon the whole thing" (PC-T. 335). Counsel was so concerned about his lack of rapport with Mr. Marek that he sought the assistance of a mental health expert: "I want[ed] the doctor to give me an idea psychologically what I was dealing with" (PC-T. 338).
Trial counsel further testified that investigation was not conducted in part because of a shortage of time and money:
Q Would it be fair to say that the reason that you didn't write to anybody in Texas is you didn't have the funds available for an investigator or to have an investigator go or can you explain that?
A In terms of, you know, why I didn't write someone in Texas because the impression I had I was not going to receive anything, you know, positive. I didn't have any avenues but certainly part of the reason is that this wasn't the only case I was handling at the time. You know. This was 1983. I imagine I had 70, 80 files and I usually carry one or two murder ones. That's been my practice.
(PC-T. 330-31). Counsel also testified that to investigate he "would have had to request the Court to appoint an investigator for a very oblique reason. I couldn't have given any real reason for it" (PC-T. 318).
The testimony at the state court hearing clearly established that trial counsel did not investigate Mr. Marek's background in preparation for the penalty phase. The Eleventh Circuit has explained the proper analysis of a penalty phase ineffective assistance of counsel claim:
In order to ascertain whether counsels' failure to present penalty phase mitigating evidence was deficient,
it must be determined whether a reasonable investigation should have uncovered such mitigating evidence. If so, then a determination must be made whether the failure to put this evidence before the jury was a tactical choice by trial counsel. If so, such a choice must be given a strong presumption of correctness, and the inquiry is generally at an end.... [If not], it must be determined that defendant suffered actual prejudice due to the ineffectiveness of his trial counsel before relief will be granted.
In this case, the attorneys failed to conduct a reasonable investigation, and this failure was not a result of a tactical choice.
Blanco v. Singletary, 943 F.2d 1477, 1500 (11th Cir. 1991), quoting Middleton v. Dugger, 849 F.2d 491, 493 (11th Cir. 1988) (emphasis in original). Decisions limiting investigation "must flow from an informed judgment." Harris v. Dugger, 874 F.2d 756, 763 (11th Cir. 1989). "An attorney has a duty to conduct a reasonable investigation." Middleton, 849 F.2d at 493. See Cunningham v. Zant, 928 F.2d 1006, 1016 (11th Cir. 1991).
The duty to investigate is heightened, not limited, when a defendant is emotionally unable to assist trial counsel. In Blanco, it was explained that because Mr. Blanco "was noticeably morose and irrational" when defense counsel were attempting to prepare for the penalty phase, "[c]ounsel therefore had a greater obligation to investigate and analyze available mitigation evidence." Blanco, 943 F.2d at 1502.
Nor is the duty to investigate restricted by counsel's impressions that the defendant did not want counsel to pursue certain matters. "[T]rial counsel was [not] excused from investigating [Mr. Marek's] background because [Mr. Marek] allegedly instructed counsel that he did not want" such an investigation undertaken or such evidence presented. Eutzy v. Dugger, 746 F. Supp. 1492, 1499 (N.D.Fla. 1989). Trial counsel must investigate without regard to a defendant's instructions:
Eleventh Circuit case law rejects the notion that a lawyer may "blindly follow" the commands of the client. Thompson v. Wainwright, [citation] (defense counsel's failure to conduct any investigation of the petitioner's background allegedly out of deference to the client's wishes, fell outside the scope of reasonable professional assistance). Although a client's wishes and directions may limit the scope of an attorney's investigation, they will not excuse a lawyers failure to conduct any investigation of a defendant's background for potential mitigating evidence. [citations] At a minimum, a lawyer must evaluate the potential avenues of investigation and then advise the client of their merit . . . Such neglect -- albeit because counsel expected a different result -- fell below an objective standard of reasonableness and, as a result, trial counsel's representation fell outside the range of competent assistance.
Eutzy, 746 F.Supp at 1499-1500 (emphasis added).
Blanco held that trial counsel who unquestioningly accepted instructions not to call penalty phase witnesses from a client who was "depressed and unresponsive," 943 F.2d at 1502, acted ineffectively and prejudiced his client, because "the ultimate decision that was reached not to call witnesses was not a result of investigation and evaluation." 943 F.2d at 1503. Rather, counsel was ineffective when "counsel essentially acquiesced in Blanco's defeatism without knowing what evidence Blanco was foregoing." 943 F.2d at 1501. Mr. Moldof's performance here was similarly deficient. Mr. Moldof acknowledged that Mr. Marek was generally lethargic and apathetic. Regarding the investigation of background materials in Texas, Mr. Moldof had the "impression" that Mr. Marek did not want Mr. Moldof to go there. Under Blanco and Eutzy, this impression that the defendant did not want counsel to contact those with background information does not excuse the lack of investigation. As in Blanco, counsel's purported decision not to investigate was not reasonable. 943 F.2d at 1502.
Most recently, in Williams v. Taylor, the United States Supreme Court reversed the Fourth Circuit Court of Appeals' denial of an ineffective assistance of counsel claim. 529 U.S. 362 (2000). Specifically, the Supreme Court found that Williams' lawyer rendered prejudicially deficient performance by failing to conduct an investigation that would have uncovered extensive records describing Williams' childhood and failing to introduce the mitigation evidence that was available. Id. at 396. Trial counsel testified that he made a tactical decision to focus on his client's cooperation with the police, emphasizing his voluntary confession. The Supreme Court ruled "the failure to introduce the comparatively voluminous amount of evidence that did speak in Williams' favor was not justified by a tactical decision to focus on Williams' voluntary confession." Id.
The Supreme Court also made clear that a defendant's burden in postconviction is to prove that the mitigation "may alter the jury's selection of penalty," not to completely rebut the State's evidence in aggravation: "Mitigation evidence unrelated to dangerousness may alter the jury's selection of penalty, even if it does not undermine or rebut the prosecution's death eligibility case." Id. at 398.
Similarly, in Mr. Marek's case, trial counsel's unsupported belief and Judge Kaplan's finding that the records describing Mr. Marek's childhood would have provided "negative aspects" was in error and constituted deficient performance. Trial counsel did not make a strategic decision not to present the records which would illustrate a tortured childhood characterized by neglect, abandonment and severe psychological and emotional problems, because as in Williams, counsel failed to obtain the crucial records. Clearly, due to the funding, counsel felt hamstrung and unreasonably failed to collect necessary documentary evidence which should have presented to the judge and jury that sentenced Mr. Marek to death.
Indeed, the neuropsychological testing not done at trial in order to save money has now been completed and confirms the indications of brain damage evident from Mr. Marek's history. This evidence established significant and compelling mitigation which trial counsel failed to develop and which the Rule 3.850 court did not consider.
Judge Kaplan previously ruled that trial counsel did not investigate, but that the decision not to investigate was reasonable: "I think Moldof indicated why he didn't investigate" (PC-T. 487). The circuit court also indicated trial counsel could have obtained the background and life history information presented by Mr. Marek in the post-conviction process: "he probably could have done some research on his own or asked for an investigator" (PC-T. 488). However, concluding that the history of severe abuse, neglect to the point of abandonment, and evidence of brain damage would make "any reasonable person[] want to make sure that Mr. Marek never ever walk the streets again" (PC-T. 488), the state court denied relief.
Trial counsel must conduct investigation before making any strategic decisions. Williams; Blanco; Middleton; Harris. "[I]gnorance about the type of mitigation evidence available . . . preclude[s defense counsel] from making strategic decisions on whether to introduce [such evidence]." Harris, 874 F.2d at 763.
Moreover, trial counsel attempted to introduce the mitigating evidence he did have available. Clearly, he would have used evidence regarding Mr. Marek's background if he had known about it. Counsel attempted to introduce the report of Dr. Krieger, but the trial court ruled it inadmissible. Counsel also wanted the jury instructed on the no significant criminal history mitigating factor, but that instruction was denied. Again, that instruction would have opened the door to negative information regarding Mr. Marek's past, yet counsel requested the instruction.
Defense counsel testified that he would have presented the testimony of Mr. Marek's mother and documents regarding Mr. Marek's mental health and foster care history if such evidence had been available (PC-T. 395-96). Where defense counsel "conceded that he would have used the evidence had he known about it," one cannot "conclude that effective counsel would have made a strategic decision to forego [such] testimony." Harris, 874 F.2d at 764. "[T]hat trial counsel had no valid tactical reasoning behind his failure to perform a background investigation for possible mitigating evidence is supported by" trial counsel's testimony that "had he known of the records he would have presented them for mitigation." Middleton, 849 F.2d at 494.
Trial counsel did not investigate, attempted to present evidence which contained negative information, and testified he would have presented other evidence had he known about it. Thus, there is no tactical reason for failing to present that evidence. "[I]n light of the ready availability of this evidence and in the absence of a tactical justification for its exclusion, the failure by trial counsel to present [the mitigating evidence] fell outside the range of professionally competent assistance." Cunningham, 928 F.2d at 1018.
Had counsel performed reasonably, a wealth of compelling mitigation would have come forth in abundance. Literally from birth, Mr. Marek's life was one of abandonment, abuse, and neglect. This pathetic story emerges from voluminous foster care records, from Mr. Marek's natural parents who abandoned and neglected him, from foster parents who failed to provide the stability required by a psychologically and organically damaged child, and from numerous psychological evaluations beginning when Mr. Marek was only nine years old. All of this information is mitigating; none of it was presented to Mr. Marek's sentencing jury.
John Richard Marek was born September 16, 1961, to Margaret and Jesse William Grimm; years later, his name was changed from Grimm to Marek. Margaret and Jesse had been married in 1956. Jesse was a U.S. Army serviceman. Their first child, Mark William Grimm, was born in 1957; their second, J. Michael Grimm, in 1959 (PC-T. 79-80, 209-10). At the time of John's birth, Jesse was a sergeant and stationed in Germany. The pregnancy was a difficult one: "My body tried to abort him. And I had to spend a lot of time in bed" (PC-T. 79). Margaret was taking a considerable amount of medication at the time.
After John's birth, Margaret's emotional problems continued. "[She] was the type of mother that cared more for herself and her father and grandmother in the states than she did for the rest of the family" (PC-T. 210). She kept taking a plethora of medication, from a shoe box filled with birth control pills, darvon, valium, diet pills, and sleeping pills (PC-T. 107-08). When John was eight or nine months old, his older brother, J. Michael, got into the shoe box and fed pills to himself and John. When Margaret discovered this she did not know what to do:
I was afraid to tell their daddy and I was afraid not to. So finally I decided well I have to, you know. Even if he hurts me. I've got to tell him, you know, it happened.
Q Were you afraid he would hurt you if you told him?
A Yes. Because, see, I was supposed to be taking care of them and I didn't. So I called him and told him he had to come home. I had something to show him and tell him. And he come home and we took them in the ambulance to Frankfurt. Before we got there they started going into convulsions and by the time we got there, you know, they were more out than conscious. And they had to pump their stomachs. And they said if we hadn't got them when we did they would have died. Especially John would have died because he was littler and Michael had shared more with him than he had took himself.
Bill says that the doctor told us then that John's mind would be affected by it.
(PC-T. 108)(emphasis added).
Jesse vividly recalled the incident:
I'd come in from the field. There wasn't anything around to eat, 8:30. It was during the winter months. It was dark. The children were all in bed. I'd been gone for 14, 15 days. I don't remember now. I was home for about an hour. Margaret was telling me about her mother and her grandmother and her father and this, that and the other and I was arguing. I was quite disciplined about taking care of -- Then she informed me that Jay Michael, the second son, had fed the baby, which was John, pills. Vitamin pills. Valium. Birth control. Diet eat pills. Whatever.
I immediately, as soon as she said pills, I immediately went in their room and grabbed them. They were both in convulsions at the time. And rushed them to the dispensary. We were in an outlying area and it was not full medical facilities there. They pumped their stomachs. Both boys the same. You know. Two different areas but both at the same time, for about approximately an hour and then we transported them by ambulance to Frankfurt, Germany, which is a general hospital for the military services in Europe.
I stayed with them until the doctors came out of the emergency room and told me they would live but not to expect anything as far as the babies being able to cope with life. In other words, that he was brain dead. It was hard for them to learn anything. It would be hard for them to do anything and to expect the worse. Especially little John. Jay Michael, from what he had told me, Jay Michael did not take as many as the pills as he had fed John.
(PC-T. 211-12)(emphasis added).
Following this drug overdose there were obvious changes in John's behavior. Jesse explained the changes he noticed:
John could never sleep. At night he would cry. Walk the floors with him. He cried during the day. As he got older he was suppose to come to the age of where he could do things. He could never do them. He didn't start crawling until he was almost 18 months old. And he was well over two years old before he started to walking. Way over two years old.
His speech was never clear. It was a slurred speech. You had to listen real close. This is as he grew older until he started talking. He could never learn how to ride a tricycle, bicycle, normal like the other children. We'd have to work with him work with him, work with him to be able to get him to do something like this. Catch a ball. Throw a ball. He was even into his first years of school he was never able to do what the other children were doing at three or four years old.
Q Did you think he was retarded?
A Yes. I do. I did. I requested help for him through the military services, through the County social services. Through the school board.
Q Was he different than your other children?
A Yes, he was. Very, very different in every way. The normal kids playing in the yards and stuff, as children will do, John was never in the group playing. John was always off to the side doing something else or just watching.
(PC-T. 213-14)(emphasis added).
John was labeled retarded. His relationship with his parents suffered as a result. Jesse described Margaret's relationship with John:
Her relationship was like get out of here. Don't talk to me. I can't stand your talking. I can't stand your shrill voice. I can't stand this. I can't do that. Go sit down and shut up more than the other children.
(PC-T. 214).
Jesse blamed Margaret for John's condition. He also questioned whether he had fathered John. "[H]e couldn't accept that he could have a child that was like that" (PC-T. 92). Jesse treated John differently than the other children:
Mark was the oldest. Michael was the second one but Michael was bigger earlier so they were like twins sizewise and he would set up competition like between them. Mark, you are just a baby. Look here, Michael is doing this; climbing this tree already, you know, and things like that. He didn't do that with John. He was. He was disappointed that John was a special education child and mostly he just did nothing with John. Ignored him.
Q Do you know why or did John know why?
A John would ask me times why Daddy didn't play with him. Why Daddy didn't do anything with him. Why Daddy pushed him away. Yeah. John was aware of the attitudes. Yeah. A special education child or if you have to call him a retarded child is more tuned in on feelings than we are. They feel rejection even if the words are acceptance. And in a way I had rejected him too. I was so ho[n]ed in on wanting a girl and disappointed.... He wore pink as a baby because I was determined he was going to be a girl. I love John but I was neglectful [sic] of him because of my emotional state at the time.
(PC-T. 85)(emphasis added).
Jesse's military duties required him to be gone from home for long periods of time. He never spent a full year at home with the family. His trips lasted anywhere from one week to fifteen months. While in Europe he was away from home about ten months out of the year. When the family lived in Oklahoma in the mid-1960's, Jesse was away a lot serving in Viet Nam (PC-T. 217, 221). He frequently had concern that in his absences Margaret was neglecting the children. When he came home he found inadequate food and clothing (PC-T. 216-17). Margaret, however, felt that Jesse was neglectful of her and the children:
I wanted him to have time for our family but he didn't. I felt he chose the army over us every time. I was furious with him when he went the second time to Vietnam.
(PC-T. 86).
John's problems continued and grew worse, as Margaret explained:
You never knew how he would react to things because he doesn't react the way I would have or the other boys would have. He saw things as sudden. He didn't understand cause and effect. He just knew he never could have a good time. Things always messed it up and he didn't understand why.
The kids made fun of him. Didn't want to play with him because he had a speech impediment and they couldn't understand except if he didn't want to be understood and they understood every word he said.
* * *
A He always went to special education. He never went to regular school. He had a bladder problem. Clear up to - Well, actually when he went into foster care he still occasionally had accidents under stress.
* * *
A It wasn't like several times a day but it was frequent. It was almost daily. It was frequent. It was embarrassing to him. He'd say things like me spill water, you know. But he didn't. He didn't fabricate big stories like his brothers would to get out of being in trouble. He generally would say I did it even though he didn't do it. He didn't show much imagination. He showed a lot of love. He was precious when he was little.
Q You mentioned the word retarded. Did you ever have John tested?
A Yes, he was evaluated as trainable but not educable.
Q Was he ever made fun of for being retarded?
A Oh, yes. Yes. A lot.
(PC-T. 87-88)(emphasis added).
In 1968, Margaret and Jesse ended their marriage. Margaret kept the children, but Jesse had visitation. John was upset by the breakup. During Jesse's visitations, John was upset by Jesse's leaving (PC-T. 219). In 1970, Margaret remarried to Arlis Bagley, an alcoholic. He was "a functional illiterate" (PC-T. 93). Margaret explained:
I mean if he will take a check for a million he will write (sic) it. He hasn't a penny in the bank. I mean he will take the food money, the rent money, the utility money. He will take your last dime if you will loan it. He's going to drink one way or another.
Q Did that cause any problems for you with four still -- they were still small boys at that time?
A Yes, yes and they needed a father. And what they got was belittle meant [sic] and not wanting to be bothered. What they got was a hundred times worse than what their father had been but it took me years to see that.
Q How would Arlis treat John?
A John he treated the worse because John was the most forgiving of the four. The other three soon realized you don't try to hug Arlis. You don't try to. You stay away as much as you can from Arlis.
But John always tried again and again and be rejected again and again. He was a very loving child.
Q How would Arlis reject him, just by not hugging him or?
A No, he generally told him to get away, retard.
Q He would call him that?
A Oh, yes. I couldn't get him not to. He would make him go to bed if nothing else. He didn't want to be bothered with any of the children. He didn't want to have to provide for them. And he wanted the use of the support money that [Jesse] give us. But he didn't --
(PC-T. 93-94)(emphasis added).
During her marriage to Arlis, after the family had moved to Texas, an incident occurred which caused Margaret to give up her children:
I had had a job washing dishes there in a restaurant but I'd lost it because Arlis came in drunk there. Lost me the job.
His mother and her boy friend had been helping to feed us but then they left and I didn't have anything. So I went to Red Cross and because their father was in the military Red Cross helped us once. Then Arlis got mad that night because the car wouldn't start. And he took a handgun and fired it into the car. The bigger boys had run around to the back of the house but John started to walk between the car and Arlis and scared me to death and of course I went hysterical screaming at John to go round back and tried to get Arlis not to empty the gun into the car.
So I called [Jesse] and told him he's going to have to take the boys; that I couldn't handle the situation. Until I could figure out what to do. They were about to put us out of the house because we hasn't paid the rent. That day they had turned the electricity off. It was going into winter. He had no job.
Q You were living in?
A Fort Worth.
Q Northern Texas?
A Kind of out in the country. I was totally scared to death. I don't know what to do so I called [Jesse]. He said he'd take the three boys but he wouldn't take John.
Q Did he say why he wouldn't take John?
A Because John wasn't his.
Q Did he tell John that or did John know that?
A Arlis told John. John - the welfare people came and got John before [Jesse] came for the boys. [Jesse] came to the house and I gave him their clothes and everything and it was supposed to be a temporary thing. But it became a life changing decision. They never were back in my custody ever again. I visited singularly but never as a family. We were never a family again.
Q How soon after the shooting incidents did child welfare come and get John?
A Next day.
Q Did he know why they were taking him?
A I think I explained to him I couldn't take care of him and that as soon as I could he'd come back. I don't remember for sure what I said.
Q But he knew that he wasn't going with his father?
A Yes.
Q And that the other boys were?
A Yeah. Yeah.
Q And Arlis told him something about that?
A Yeah.
Q What did Arlis tell him?
A That his Daddy wouldn't take him. That his Daddy didn't want him because he was retarded.
* * *
Q Ultimately who did you choose to stay with, your kids or with Arlis?
A Arlis and they felt that. They felt I chose Arlis over them. At the time I rationalized it and said the foster care is, you know, they're giving.
(PC-T. 97-100)(emphasis added). Subsequently, Margaret spent time in a sanitarium (PC-T. 102).
The Tarrant County Child Welfare Unit obtained custody of John on October 21, 1970. At that time John was adjudged a "dependent and neglected child." (App. K, p. 3, previously filed, specifically and fully incorporated). After being adjudicated a neglected child, John was placed in foster care with Lena and Virgil Cox. He was enrolled in Saginaw Elementary School on November 16, 1970. School records note that John was "put in foster home due to rejection by new stepfather." His teacher commented, "John is in need of a great deal of love and understanding. Needs to feel success and acceptance." App. K, p. 1. He was placed in a class for the emotionally disturbed. App. K, p. 6. On November 30, 1970, John was withdrawn from his new school when he was moved to a new foster home. App. K, p. 1.
In December 1970, when John was nine years old, a psychological evaluation, including the Wechsler intelligence scale for children, revealed that John was not retarded as everyone had believed. His verbal I.Q. was 91, performance I.Q. was 117, and full scale I.Q. was 104. The evaluation said that, while in foster care in Saginaw, John was in a class for the "minimally brain injured" and explained his speech difficulty:
John is a nine-year old boy of normal size and appearance. His most obvious disability is a severe speech and language handicap. His speech would be unintelligible to most listeners much of the time. And even an experienced examiner occasionally would have difficulty understanding his speech out of context.
His speech and language problem is characterized by severe articulation difficulties, frequent non-fluency, immature grammar and syntax, the use of gesture to aid self-expression, and occasionally the use of devices to get out of talking altogether (a shrug with a "don't know" response). At times when John is trying to say something, he becomes very non-fluent; when the listener tries to put together a sequence of incorrect sounds over a prolonged period of time, comprehension becomes almost impossible.
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This youngster had had a previous psychological evaluation which suggested he was of borderline potential intellectually. It is easy to understand how this estimate of John's ability might have been obtained.
John seems to be a sensitive child who is acutely aware of feelings and perhaps expectation of others toward him -- it may be that he responds in his "borderline" manner when he thinks this is how the significant person with him feels about him.
App. L, pp. 2-3 (emphasis added).
John was placed in a good foster home and a small private school for children with learning disabilities. He made very good progress in learning to speak intelligibly. However, John was removed from the placement because of the foster mother's ill health. He was placed with new foster parents who enrolled him in public school where he attended a special class for children with cerebral dysfunction. App. D, p. 16, previously filed, specifically and fully incorporated. An evaluation conducted on November 12, 1971, contained the following:
John produces an unusually long Rorschach in comparison to most youngsters of his mental age. The length is partly a function of many detail responses, which may suggest a need to select limited aspects of an environment to achieve a sense of stability in almost a compulsive manner.
Edged and tiny detail are also characteristic of protocols of children with cerebral dysfunction. There are many elements of this Rorschach which suggest organicity. First of all, John is a "slow starter." He begins with extremely poor perceptions, but as he moves along, he gradually begins to get the idea, and by the last few cards he is doing a rather good job in responding. This sort of approach is often typical of MBI children.
John's protocol contains many other "organic indicators". He displays excessive perseveration ("Butterfly" is the first response for five straight cards!) He is hung up on lines and symmetry. He does some color naming, and as mentioned previously he shows a large number of detail responses with a tendency to tiny and edged detail.
* * *
John seems to have a deep sense of inadequacy and poor self concept. The boy has "one leg broken off" and the butterfly has "only bones, no wings". This seems to be an oversensitive and easily hurt youngster who tries to hide his sensitivity. John seems to be anxious and may see himself in a tenuous situation with possible repercussions. Thus the boy is pictured as "sitting on a cannon", and the cloud is "blowing air and getting everything around it all hot and bothered".
* * *
John's story telling involves a little boy who likes to play cards and got involved in sports, such as bowling, football and basketball. He also likes to play with army men, and sometimes at night when his light is supposed to be off, he stays up and plays with his army men in a "little bit of light." He doesn't like it because other kids call him squirt, and he is worried about his daddy who is over in Vietnam. He is unhappy when he has no one to play with. He wants to change from being a boy who is sad all the time to being a boy who is happy all the time. For his three wishes he chooses army men, a bicycle mirror and turn signals for his bike. He wants to grow up to be a policeman.
When the story was finished, John grinned in a somewhat poignant manner and said, "Did you know the little boy in the story was me?" He then told of a recent very happy experience. He had spent the night at another little boy's house, and they had stayed up late and watched an Elvis Presley movie.
John has previously been diagnosed as a youngster with cerebral dysfunction, and the Rorschach would certainly seem to confirm this diagnosis. John's protocol actually suggests somewhat better ego strengths then would be predicted on the basis of history, and intelligence not markedly reduced, but rather erratic and disorganized, probably on a basis of organicity. There is no suggestion of psychopathology. Rather this seems to be an immature youngster with rather basic defenses who is probably making some sort of neurotic adjustment to his very real problems. Psychotherapy might be of help, but there are certainly many reality problems confronting this youngster.
App. L, pp. 5-6, previously filed, specifically and fully incorporated.
A psychiatric evaluation was conducted on November 17, 1971, by Dr. Henry Burks. It concluded:
Grossly, his mental processes seem intact except for the difficulty in relating and the affective disturbances. I would consider him as an emotionally deprived boy with minimal cerebral dysfunction syndrome and language disability who is having some situational reaction to a difficult foster and school placement. He is currently taking Dexedrine, 5 mg. twice a day, and I added Mellaril, 10 mg. three times a day to this program to see if it could help his anxiety level. I think this boy is probably in need of supportive psychotherapy or casework services, but I don't know where they are available.
App. L, p. 7 (emphasis added).
John saw a psychiatrist on a regular basis. Progress notes reflected the persistence of John's emotional difficulties arising from his abandonment by his parents. These notes also reflect John's placement with foster parents from whom he took the name "Marek." During this time period, John was prescribed Dexadrine, Mellaril, and Elavil. See App. L., pp. 12-28. These notes provide a very revealing portrait of John:
3-27-72: This was a joint interview with Mrs. Marek. John's foster mother, and Mr. Purnell, John's welfare worker. They wanted to know about John's progress and the prognosis. I told them it was my feeling that because of John being traumatized so much that it would be expected that he would continue having problems for years to come. Mr. Purnell mentioned that he had gotten a letter from John's father who is in Europe and that the father indicated in the letter that he is interested in John and hearing about him, but he definitely doesn't feel in the capacity to provide a home for him. Mrs. Marek indicated that she is not planning to adopt John but she is willing to continue having him, but she cannot promise that she will keep him until he is over his childhood and adolescence. She is just going to play it by ear.
4-10-72: Today we had the session with John in the playroom. Immediately after entering, he started kicking the ball very hard repeatedly. I told him that it appeared to me he was quite angry. At first he denied it, then he said he was still angry at his step-father, Mr. Begley, for whipping him each time he wet the bed, which was something that he could not help and could not stop doing it. Then I saw Mrs. Marek jointly with John and she indicated that last week he had gone to the house where he used to live with his natural parents. After that, during the rest of the week, his behavior was not good. He wet the bed every night and this seems to irritate his foster parents.
4-19-72: John told me today that he feels his foster mother and his foster sister are keeping a secret from him, which is that his natural mother is not taking him back. He indicated that he was supposed to be away from his natural mother for one year and then after that be returned to her. He has ambivalent feelings towards his natural mother.
6-9-72: John is a child who has been seen by Dr. Serrano. He has evidences of deprivation, the foster child syndrome, and learning disability which is probably on both psychological and neurological basis. He had been improving greatly through his psychotherapy. When Dr. Serrano left, however, there was a fairly massive regression, some self-destructive behavior, and a return of the enuresis.
2-28-74: First I interviewed Mrs. Marek and she said that during the past week John was gone on Saturday for 8 hours. He has continued wetting his pants, and he also had an episode of soiling. Mrs. Marek expressed the opinion that John needs more structure than she is able to provide, more so now when she is running for office, and I agree that John needs more structure than he is getting right now. She is considering the Adventure Trails of the Salesmanship Club in Dallas, and St. Joseph's School of the Catholic Charities a possible placement possibilities, and I also gave her the name and address of Shadybrook School in Richardson as another possibility. She is going to check on them and see what kind of placement she can come up with. Champus Insurance will cover 80% and the rest will be paid by the Welfare Department.
App. L, pp. 15-28 (emphasis added).
Another psychological evaluation of John was conducted in April of 1974:
John's story telling suggests that here is another foster child still fantasizing about and idealizing his natural parents years after he has left the natural home. The boy in the story is afraid of his stepfather who is always hitting him and wishes he were dead. He hates his mother and stepfather, so he goes to the Child Study Center and talks to the psychiatrist who sees that mother and step-father are divorced and mother remarries natural father. Then mother stops "all that marrying and divorcing", and the family lives happily ever after. (A rather large order for the psychiatrist!)
John's written expression is so poor that his Sentence Completion test is of little value. Two stories are perhaps of significance on the Tasks for Emotional Development Test. In one John's present foster parents come through as helpful, fair and concerned. In another the boy sees himself as ugly looking and rejected by his peers and lacking in abilities and confidence. Also there are suggestions John is still having difficulty getting along with his present foster sister.
App. L, pp. 10-11 (emphasis added).
In the spring of 1974, Mrs. Marek decided to remove John from her home and sent him to a residential treatment facility. Funding for this move came from Jesse Grimm's Champus Insurance obtained through the military. John arrived at Shady Brook Residential Treatment Center for Children in Richardson, Texas, on June 11, 1974. App. B, previously filed, specifically and fully incorporated. In August 1974, an Academic Progress Report on John's initial adjustment at Shady Brook noted that John "appears to lack assertiveness in some peer interactions which results in his being bullied by the more aggressive group members." App. C, p. 4, previously filed, specifically and fully incorporated. It also explained, "John's weak ego seems to cause him to withdraw when there is any conflict, either with other students or with the teacher." Id. A March, 1975, report noted that John had shown much improvement, although his bed wetting continued. App. C. On the Stanford Achievement Test administered in April, 1975, John's scores were in the 5.2 to 6.1 grade equivalent levels. This was shortly before John's fourteenth birthday when he should have been near the end of an eighth grade level. In June of 1975, intelligence testing revealed a verbal score of 87, a performance score of 103 and a full scale score of 94. App. B.
In September, 1975, Champus said funding would soon be terminated for John's placement in Shady Brook. The medical director wrote Congressman Jim Wright protesting the funding cut:
To review you briefly, John is the son of a retired serviceman. The family abandoned John a number of years ago for all practical purposes. He was in the custody of Tarrant County Welfare before being placed in two different foster homes. John had reacted to neglect and abandonment primarily by an autistic-like withdrawal into himself and by lack of speech development. Mrs. Marek became interested in him and took him into her home in late 1971. She sought help for him on an outpatient basis through the Child Study Center in Fort Worth, and struggled to keep him functioning in their home and in the community. The boy's emotional problems prevented her being able to do that.
We admitted John to Shady Brook June 11, 1974, and immediately placed him in individual therapy with Joseph Kugler, M. D. He has had remedial education, speech therapy, individual psychotherapy and group therapy. John's response has been good. School achievement is still approximately two years behind appropriate grade placement. We have seen him relinquish his introverted amateur adjustment in favor of periods of emotional stability, academic achievement, and outgoing peer relations. Psychological factors are difficult to describe in a concrete way and I will not go further in that direction.
The gist of the matter with John is that he has made improvement but if he is discharged at this time it is unlikely that the Mareks or any other family can sustain him within their group. There is no educational facility in Fort Worth equipped to work with him. He continues to wet the bed almost nightly. He gravitates toward delinquent behavior as he is suggestible, immature and impulsive. It is our judgment that a considerable effort has been made by the Marek family, by the community agencies in Fort Worth, and by us as a residential treatment facility. To stop now will negate what has gone before.
App. C, p. 27 (emphasis added).
The medical director also wrote Dr. Dane Prugh for help preventing the cutback on Champus funding, and acknowledged that there was a tendency at Shady Brook to under diagnoses:
I have wondered whether we have hurt our position by a tendency to "under diagnose". I am sure that you can appreciate our often not wanting to label a seriously disorganized child from a chaotic home situation as psychotic, even though at times under stress he functions at a psychotic level. Even though it hurts our presentation of the case now, I have always felt that such labeling hurts the child even more and particularly those whom we feel have a good prognosis. Does your committee take this viewpoint into account?
App. C, p. 30.
Champus refused to extend funding. Shady Brook's director of admissions wrote Mrs. Marek and described how John was taking the news of the funding cutback:
Dr. Kugler saw John for the last time on Thursday morning, October 2nd. He chose to do this at his own expense as he felt it was something he wanted to do. I had explained the financial situation which would prevail after September 30th and told Dr. Kugler that we would be unable to continue the individual therapy sessions. It was a tearful parting for both of them. I spent some time with John later in the morning trying to simplify as best I could the arbitrary CHAMPUS decision. One of the boys in John's dormitory had already left earlier in September because of a termination of CHAMPUS, so that part was not new to him.
App. C, p. 34. On October 28, 1975, the program director of the Tarrant County Child Welfare Unit wrote Champus making a last ditch appeal for a continuation of the funding for John:
This is a formal request from this agency that the decision to terminate the CHAMPUS cost-sharing benefits to John R. Grimm be reconsidered. John has been in residential care at Shady Brook School in Richardson, Texas since June 11, 1974. As you are aware, John Grimm has been in the custody of the Tarrant County Child Welfare Unit of the Texas State Department of Public Welfare since October 21, 1970. This agency and other community resources have made all possible efforts to address the emotional problems of the child evidenced in such symptoms as enuresis, encoprisis, fire-setting, a handicapped speech, intraversion and acting-out behavior. He further has had educational difficulties resulting from minimal cerebral dysfunction syndrome.
John was placed in the licensed foster home of Mr. and Mrs. Gabriel Marek on August 21, 1971. Mr. and Mrs. Marek have responded to John's needs and demands with more patience, understanding, love and concern than many children receive from natural parents. The Mareks have certainly done more for John than any foster parent would ever be asked to do.
Prior to placement at Shady Brook, John was receiving out-patient therapy and attending special classes with children who have cerebral dysfunction. However, these resources were not sufficient to enable John to live successfully in the community. Jose N. Serrano, M.D. recommended John be placed at Shady Brook. (Dr. Serrano was John's psychiatrist at the Child Study Center.)
This agency has been very pleased with the care which John has received at Shady Brook. In the milieu program of remedial education, speech therapy, individual psychotherapy and group psychotherapy, John has made substantial progress in his peer relations, speech and educational achievements and has exhibited a higher level of emotional stability and maturity. However, it is the opinion of treatment staff that John has not yet reached a level where he could be sustained in a foster family or sufficiently assisted by existing educational facilities in the community. As Dr. Jack Martin Medical Director of Shady Brook, notes: "He continues to wet the bed almost nightly. He gravitates toward delinquent behavior as he is suggestible, immature and impulsive." Additionally, the Mareks also do not see John as yet ready to return to their home. It is projected that John will require an additional nine to twelve months of residential treatment before he can successfully reenter the community.
Because of their desire to see John's treatment continued, the staff at Shady Brook have allowed him to remain while they receive only the $300 per month supplied by Tarrant County. (This is the limit that the county will pay.) However, this arrangement cannot continue beyond the end of the year. A great deal of effort from many sources has gone into the progress made thus far by this child. To stop the treatment now could negate the progress and drastically diminish this child's chances to be an emotionally stable and productive member of the community.
App. C, pp. 38-39.
In December 1975, Shady Brook issued its last progress report on John:
In the dormitory, John has made gains in some areas, with considerable difficulty remaining in others. He shows increasing willingness to deal with his problems in a realistic manner, seeming to be able now to correlate his own actions to the consequences that follow. This is contrasted with earlier attitudes that unpleasant consequences were forced upon him unfairly by elements beyond his control. Behavioral outbursts occur less frequently, as John is slowly learning to replace external forms of discipline with self-control.
Peer relationships remain more difficult than adult relationships. He has not been able to form a close friendship in the dormitory, although dorm acceptance of him is increasing. His immature responses to the others have diminished to some degree, as have their complaints of him. John relates well to the staff, with dependency expressions being most frequent. John's bed wetting has increased since the summer.
App. C, p. 41.
On January 23, 1976, John left Shady Brook. App. B. After he lived briefly with the Mareks and took their name in April of 1976 (App. D), although they never actually adopted him, John was placed with the Devereux Foundation in Victoria, Texas. He was enrolled in June of 1976 under the name John Marek. An admissions psychological evaluation revealed that much of the progress made at Shady Brook was already gone:
The intellectual picture requires some explanation. A Full Scale Wechsler Bellevue I.Q. of 82 was obtained placing the patient in the Dull Normal range of intelligence. The Verbal I.Q. was 64 and the Performance I.Q. was 104. Subtest scores ranged from a low of 1 on Arithmetic to a high of 12 on Picture Completion and Block Design. This young man at some time in the past was potentially capable of functioning in the Bright Normal range. His longstanding emotional disturbance has significantly lowered his overall intellectual functioning, but his basic cognitive grasp remains average.
* * *
A fairly complicated picture with the chief diagnostic impression being ego diffusion/ fragility with moderately severe general emotional disturbance. Emotional integration is poor with inability to form goals, frequent outbursts of impulsivity and, perhaps most important, thinking disorganization. At least borderline or latent thinking disturbance is seen as present. In fact, the common denominator behind much of the patient's fairly self-defeating behavior is seen as a thought disturbance. Currently this is not crystallized, and the next several years will determine future levels of adjustment. Level of depression is only mild with the level of anxiety being only mild as well. This young man's inability to form goals reflects his vacuous view of himself in the world. There is a fluid, changing, fragmented quality to this young man.
App. A, pp. 29-30, previously filed, specifically and fully incorporated.
An evaluation conducted at Devereux on October 19, 1977, was very insightful:
A Full Scale Weschler Bellevue I.Q. of 80 was obtained, placing the patient in the Dull Normal range of intelligence. However, this figure must be interpreted with caution because of the wide verbal performance discrepancy. Verbal I.Q. was 67; Performance I.Q. was 99. The overall profile is similar to one obtained in 1976, when John entered Devereux. At some time in the past this young man was potentially capable of functioning in the Bright Normal range of intelligence, but due to his various problems have been unable to realize this potential.
The tests strongly suggest underlying organicity, reflected in a language/learning disability syndrome. Academic information is very poor, and general verbal skills are also poor. Perceptual motor dysfunction is indicated. However, in terms of specific etiological contributors, organicity must rate a second place to this young man's severe emotional disturbance.
* * *
This young man shows many indications of developing an inadequate personality disturbance. That is, he is increasingly seeing himself as an inadequate person, partially due to his bed wetting, but chiefly due to the lack of any kind of positive male identification. Increasingly, he sees himself as a bummer, a fool, a dummy, etc. This does not constitute a step backward, but more accurately a clarification in diagnoses. This young man had all of these features when he entered Devereux, but they have become more clearly evident diagnostically during the time he has been at Devereux. Accompanying his inadequacy feelings and the overall inadequacy constellation are a variable morass of underlying depressive feelings. While John is only mildly depressed, his depression extends very far back in time and is fairly well and deeply set.
App. A, pp. 17-18.
In May 1978, John still had a bed wetting problem which caused him much embarrassment. "[H]e continue[d] to feel so worthless -- feeling that he [was] a nothing." The Devereux staff felt John needed to "find something he can do and find successes and gain more self-confidence to strengthen his feeling of self-worth." App. A, p. 11. John was discharged from Devereux at his request on September 18, 1978. The discharge summary noted "John's feelings of inadequacy among peers and a feeling he would like to return to a Unit where there were younger and smaller children." App. A, p. 5. John went to the Marek's where he attended public school and worked at a gas station. In October 1978, Mrs. Marek reported John had "regressed in his enuresis problem after his birthday because his natural father had not called or sent a present to John as he was supposed to. Since his birthday, John ha[d] resumed his bed wetting." App. D.
In December, John quit school. In January, the Mareks washed their hands of John. Texas Welfare officials placed John in a shelter. He wanted Jesse Grimm's phone number which the welfare officials obtained from Margaret Begley. App. D, Summary of Movement from 01/01/79 to 09/28/79. In March of 1979 he was placed with new foster parents, Sallie and Jack Hand (PC-T. 239).
In May, 1979, John was charged with credit card abuse for attempting to charge $55 on a credit card a customer had left at the gas station where he worked. App. F, pp. 6, 9, previously filed, specifically and fully incorporated. John was placed on probation. App. G, p. 3, previously filed, specifically and fully incorporated. In 1980, probation was revoked because John had failed to attend a counseling and vocational program, and John was sentenced to two years in state prison. App. G, p. 4. During probation revocation proceedings, a competency evaluation noted that John had developed a substantial drug abuse problem, mainlining heroin and using marijuana, cocaine, speed, and downers, but that John had functioned adequately in jail where drugs were not available. App. E, p. 5, previously filed, specifically and fully incorporated. The evaluator recommended that John receive drug treatment in "a strictly enforced and structured environment," which could "reshape [his] behavior permanently." Id. at 6.
After his release from prison, John had nowhere to go and resumed using drugs and drinking. By the time of the offense, he was consuming vast quantities of alcohol. He drank approximately two cases of beer a day during the trip to Florida. When police officers stopped John and Raymond Wigley on the beach early on June 17, 1983, the bed of Wigley's truck contained eight to ten cases of beer. When John and Wigley were arrested the next day, there were five or six cases of beer in the truck.
This evidence concerning Mr. Marek's character and background never reached Mr. Marek's sentencing jury and judge. Mr. Marek's early life of abuse, neglect and rejection had a lasting impact on John. These were facts the jury should have known about John Marek. Since defense counsel failed to present this important information, Mr. Marek was sentenced to death by a judge and jury who knew virtually nothing about him save what the State told them.
Under Florida law, the background information that counsel did not pursue was admissible as evidence of mitigating circumstances. The Florida Supreme Court has recognized that the kinds of information available through investigation of Mr. Marek's background is mitigating. For example, a deprived and abusive childhood is mitigating. Campbell v. State, 571 So. 2d 415, 419 (Fla. 1990)("Abused or deprived childhood" is valid mitigating circumstance); Holsworth v. State, 522 So. 2d 348 (Fla. 1988)("Childhood trauma has been recognized as a mitigating factor").
The background information described above was not only independently mitigating, but also would have prompted a thorough neuropsychological evaluation of Mr. Marek. Such an evaluation would have confirmed what the Texas records indicate: Mr. Marek suffers from organic brain damage and severe psychological disturbances, and has suffered from these conditions throughout his life. Such an evaluation would also have revealed that Mr. Marek's organic brain damage and psychological disturbances interacted with alcohol and drug abuse and with intoxication at the time of the offense to substantially impair Mr. Marek's judgment and ability to control his conduct.
Dr. Krieger, who evaluated Mr. Marek pre-trial for competency, testified at the previous hearing that he was not asked to evaluate for mitigation (PC-T. 282), that he was concerned about saving taxpayer money and obtaining future court appointments, and that he is not a neuropsychologist and was not qualified to perform neuropsychological testing (PC-T. 283). Had he been provided with records indicating a history of organicity, Dr. Krieger would have referred defense counsel to someone qualified to conduct such testing (PC-T. 283).
Dr. Pat Fleming has now conducted the necessary evaluation and testing. Her report demonstrates substantial mitigation that could have been provided to Mr. Marek's sentencers:
These test results indicate cerebral dysfunction with the left hemisphere affected more than the right. Given John's history of head injury, high fevers, and drug overdose it is likely that these previous injuries interacted with the considerable psychological problems to result in significant problems. John was not able to converse until nine years of age. He also had the accompanying behaviors that would indicate significant damage to the frontal and/or temporal lobe. All of these behaviors were well documented in psychological lay reports: lack of capacity for self-control (restlessness, impatience, and impulsivity), impaired social behavior (impaired judgment, social dependency), impaired ability to learn (six grade levels below age), and emotional problems (irritability, liability of mood). Language and cognitive fluency has increased through the years but the emotional components of the brain damage have remained.
* * *
John Marek's history is consistent from all sources: school and medical records, collateral information, self report, behavioral observations, prior psychiatric and psychological evaluations, and test data. His early years were traumatic psychologically; a natural father who denied his paternity and disassociated himself from his son's problems, a mother who was depressed, immature, and who relinquished her son at eight years because of his problems; an alcoholic step-father who physically and emotionally abused him; a foster father who was not emotionally available and also hit John, a foster mother who focused on his deficits, was not emotionally available, and provided inconsistent control and nurturing and who ultimately abandoned him after refusing him therapeutic help.
The brain injury added to the psychic trauma. The significantly delayed speech, encopresis, hyperactivity, and inability to follow directions only added to the psychological problems. The too infrequent therapeutic intervention was not sufficient. As recently as 1980, the examining psychiatrist recommended treatment rather than incarceration.
The significant alcohol use only added to the poor judgment stemming from brain damage and serious psychological problems. The previous history of alcohol blackouts indicate that John was consuming heavy amounts of alcohol on a continuing basis and the day of the offense he had consumed four cases of beer.
John has a history of lack of self-respect and worth. He described himself as a youngster as "a nothing" and accepted the fact of his parent's abandonment as right and just, given his inadequacy. Most children grow up with a sense of personal power, but not John. He was regarded as almost invisible during most of his childhood -- "my mother was there but she wasn't there." He finally reached adulthood with no knowledge of his value but knew that he was unable to influence the course of his life. He lacked the psychological resources to move away from people or circumstances that would cause him pain and grief. When the events were beyond his control he finally lost the ultimate control.
Rutter, Graham, & Yle, 1970, note the prevalence of emotional disturbance among non-brain-damaged, nonphysically ill, or handicapped children to be 6.6%. Brian damaged children, however, showed a rate of emotional disturbance of 34.3%, almost six times the normal occurrence rate. Filskov and Boll, 1981, state that children with brain damage are certainly at an increased risk for emotional disturbance.
John's symptomology meets the criteria of Organic Brain Syndrome as outlined in the Diagnostic and Statistical Manual of Mental Disorders (DSM-III): Affective instability e.g. marked shifts from normal mood to depression, irritability, or anxiety; recurrent outbursts of aggression or rage that are grossly out of proportion to any precipitating psychological stressors; markedly impaired social judgment; marked apathy and indifference.
John was diagnosed as a child as having an underlying depression. The current evaluation supports the diagnosis of Dysthmia (Depressive Neurosis). According to the DSM-III the essential feature is a chronic disturbance of mood involving depressed mood (irritable mood in children) for at least two years. During these periods of depressed mood there are some of the following associated symptoms that John has demonstrated: poor appetite, hypersomnia, low energy or fatigue, low self-esteem, poor concentration or difficulty making decisions, and feelings of hopelessness. John's present level of depression is heightened by his present circumstances but the history indicates that the depression is long standing.
John's history clearly documents the trauma and brain damage. Unfortunately, previous examiners did not have sufficient data available to them to make diagnoses which require case history and documentation to validate. John's information is consistent and I believe the other examiners would have drawn different conclusions based on the psychological evidence and background information.
1. Significant physical and psychological trauma during infancy and childhood... drug overdose, head injuries, seizure activity, and recurrent high fevers.
2. Consistent diagnosis of brain dysfunction beginning at one year. Treatment plans were inconsistent and interrupted.
3. Alcohol use beginning at age eleven and increasing at age seventeen. This excessive alcohol use interacted with the existing brain dysfunction and severe psychological problems to significantly interfere with functioning and judgment.
4. Significant family pathology. Abandoned by natural mother, father, step-father and foster family. Unaccepted at home and school due to his behavior and severe language delay.
5. Consistent lack of opportunity to establish stable relationships. Frequent shifts in foster families and treatment centers, with no consistent plan. Failure to refer to in-patient treatment when the circumstances and recommendations warranted more intense treatment.
John Marek is a classic example of a child who was provided too little, too late. From the time of his birth he was a frantic child, seeking acceptance, nurturing, and attention. He was surrounded by inadequate people who did not have the capacity to understand or rear a child who had significant problems.
Compelling evidence regarding John Marek's brain damage never reached the sentencers because defense counsel failed to obtain the background records indicating that neuropsychological testing was necessary. Had he done so, as Dr. Krieger testified, the testing would have been conducted and as Dr. Fleming's report demonstrates, would have revealed Mr. Marek's organic brain damage.
As Dr. Fleming's report also demonstrates, a thorough psychological evaluation which took into account the documentation regarding Mr. Marek's background and history would also have provided substantial mitigation regarding Mr. Marek's mental and emotional disturbances, his history of alcohol and drug abuse, and his intoxication at the time of the offense. Such evidence, too, is recognized mitigation. See Castro v. State, 547 So. 2d 111, 116 (Fla. 1989)(evidence that defendant was drinking at time of offense and had "alcohol and drug addicted personality" was mitigating).