VIDEO REPLAY: Hearing on alleged south Fort Myers child killer

Judge to decide if Grodin is competent to stand trial

BY PAT GILLESPIE
pgillespie@news-press.com

Today, Lee Circuit Judge Edward Volz Jr. will face a familiar scene - doctors and attorneys arguing whether Justin Grodin is competent to stand trial.

It has happened for most of the last six years since Grodin, 35, was extradited from Arizona to Florida to face charges of first-degree murder and child abuse for allegedly beating to death and burying his 11-month-old daughter Gretchen in 2000 in south Fort Myers. He faces the death penalty.

Attorneys, a new round of doctors and other witnesses will gather in Courtroom B of the Lee County Justice Center this afternoon and Volz will have the burden of deciding to keep the case on track for a June 9 trial or delaying it again. If the judge finds Grodin competent, his trial should start in two months. But if Volz finds Grodin incompetent, he could send him back to a state hospital.

"This man — he needs hospital care and should be there for the rest of his life," said Grodin's uncle, Herbert Grodin, of New Jersey. "He is, really, a mental case."

Volz ruled in 2007 and in 2008 the accused killer is competent to stand trial, writing Grodin is trying to "game the system" by lying and faking a mental illness. That followed a previous judge, who in 2005 found Grodin incompetent. Competency deals with a defendant's understanding of the court system, its players and possible penalties of a conviction. An incompetent person cannot go on trial.

Although Volz has said he wants the case to go to trial, he appointed three doctors in February to examine Grodin at the urging of Grodin's attorneys, who say their client won't communicate with them. They also say he has lost 120 pounds in six years. Two of the three mental health experts who have seen Grodin this year believe he is incompetent to stand trial. Both of the last two times Volz ruled Grodin competent, two of the three doctors found Grodin incompetent.

Assistant State Attorney Anthony Kunasek said he and one of Grodin's attorneys, J.L. "Ray" LeGrande have not discussed a plea deal in this case, but prosecutors have talked among each other about coming to some other type of resolution. One option is sending Grodin to a mental facility for life.

"Those discussions have taken place," he said. "They have to in a case like this, when you come up on nine years old."

But, Kunasek said, he is focused on seeking a murder conviction for Grodin.

"We want to get this case resolved," he said.

Long haul

Grodin was most recently set for trial April 13 - one of dozens of trial dates that have come and gone in the case's lifespan.

While first-degree murder cases in Lee County are known to take three to four years to get to trial, Grodin's nine years in the system is longest in recent memory.

Because of an extended pre-trial life, more tax dollars have been spent on the case as well.

An analysis by The News-Press last May showed Grodin's case has cost taxpayers at least $300,000. Add to that in the last 11 months at least another $25,000 in Lee County Jail housing costs, $18,000 in state-funded defense costs and undetermined amounts on courtroom expenses, state attorney fees, deposition costs and doctor examinations.

But LeGrande said he doesn't request competency hearings to seek delays.

"There's nobody who wants this case to go to trial more than me," said LeGrande, glancing at the dozen boxes and shelves of material in his office dedicated to Grodin.

But he said his client is unable to answer questions or contribute to his defense.

In court, Grodin exhibits bizarre behavior. He is often found mumbling to himself and talking over attorneys. He once said he owned the New York Yankees and created the television series "Friends." He once said he is a good parent to his children. According to court documents, Grodin has urinated in his cell, spit on corrections officers and consumed his own feces.

"How can any defense attorney defend any defendant who is not competent? We're talking basic constitutional rights," LeGrande said. "He's at the bottom - he's a pathetic animal."

Herbert Grodin described his nephew as disturbed from a young age. Justin Grodin's mother was an alcoholic and father had psychological problems, he said. They didn't give their son the treatment he needed, the elder Grodin said.

"He had lots of issues when he was younger," he said. "He was a problem since birth."

He said he used to get calls from his nephew from jail and a state hospital, but the calls have ceased in the last six months.

"He is not normal," Herbert Grodin said. "He could be bright in some areas, but he doesn't know what's going on."

He said a conviction and death imposition wouldn't be right.

"It's the wrong thing to do - this guy is sick," he said. "If he goes to jail, it's a misjustice."

Medical history

LeGrande said Grodin suffers from hypothyroidism, which has caused the 120-pound loss and contributed to his mental deterioration. Grodin also isn't taking medicine while in the Lee County Jail, which contributes to his mental deterioration, LeGrande said.

"So, we're dealing with not only a medical problem, but a mental problem," LeGrande said. "I think medication is the answer."

A 1992 U.S. Supreme Court case reversed a Nevada murder conviction because the defendant was forced to take medication to restore his competency. LeGrande said Florida doesn't have a provision for allowing forced medication for defendants.

"He can literally sue the jail if they hold him down and force him to take medication," said Coral Gables psychiatrist Dr. Jerald Ratner, who has not been involved in Grodin's case, but has 30 years of experience testifying about such matters.

Ratner said if Grodin is again found incompetent to stand trial, a guardian could be appointed and that person could make decisions for him, including the decision to take medicine. Once Grodin's competency is restored, though, Grodin would again be responsible for making his own decisions.

It's a cycle that may not cease until Grodin is found competent and goes to trial.

"I think everybody involved is frustrated," Kunasek said. "That being said, everyone also understands this is a capital case - it is the most serious case one could be tried for. Things need to be done in a certain way."

One flaw in the system that may account for some of the delays, Ratner said, is how much time is dedicated by court-appointed doctors. Ratner said mental health professionals should visit a patient twice if the first visit isn't sufficient. Several of the doctors who have evaluated Grodin met with him one time before coming to an assessment.

"We can also be fooled," Ratner said. "I don't care how much training you have."

In the life of the case, two judges and nearly a dozen mental health professionals have disagreed about Grodin's competency, which highlights the difficulty in making a competency determination.

Dr. Richard Hanson, a Lake Mary psychiatrist, testified during the June 2008 competency hearing he saw Grodin twice because the first time Grodin was "quite psychotic in behavior."

"It never surprises me to find that there can be a remarkable difference on one day versus the next day that an evaluation is done," he testified. "And oftentimes I think it could explain why there's so many diverse opinions by well-trained professionals when they see the person on a different day."

Fort Myers psychologist Robert Silver examined Grodin in 2005 and found him competent to stand trial, although two other doctors disagreed. Lee Circuit Judge Lynn Gerald Jr. agreed with the majority and sent Grodin to a state hospital in the Florida Panhandle for treatment.

Silver believed Grodin was lying to him, faking a mental illness so he wouldn't face prosecution. In March 2007, Silver paid Grodin another court-ordered visit at the Lee County Jail. That time, however, Silver couldn't even get Grodin to talk.

"He has become what he wanted to be," Silver said. "He really deteriorated mentally."

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