A Prosecutor’s View-Death Sentence Delayed for 35 Years

One July evening in 1977, when I was a three year prosecutor, I received a call from County Homicide to respond to a scene.  It was a scene from Hell.   Homicide duty in those days was definitely not like being the Maytag repairman. Being on duty for a week at a time, you saw upwards of nine or ten bodies, and that was only in your half of the county. But rarely was it more than a double.

This was in a middle class black neighborhood, known as Carol City, in north Dade County, Florida, now in the city of Miami Gardens. There were five dead bodies, laid out like the spokes of a wheel.  All had their hands bound behind their backs. They were shot in the head.  After I said “Wow!” one of the detectives took me into a second bedroom and showed me number six. I had been a NPYD cop in the South Bronx for six years before law school and had never seen anything like this.

Two months before, an elderly couple in Miami for a funeral, were found beaten, bound, and shot to death in their motel room on U.S. 1.  The bullets were from the same gun to be used in the Carol City massacre. No one was ever charged in those murders.

Ten months later John Errol Ferguson, and three others were in custody.  Seems Ferguson, six months after the Carol City Six, so named by the media, found a young couple in a lovers’ lane.  He raped the girl and shot both in the head.  The gun used would be proven to have been stolen from the Carol City home.

Ferguson was convicted separately of murdering the two teenagers, Belinda Worley, a 17 year old Hialeah High School senior, and Brian Glenfeldt, also 17. A particularly vicious rape, Belinda’s mouth and throat were full of sand reflecting her position (and mental anguish) during the horrific assault.

Ferguson made the mistake of telling his girlfriend and she dropped a dime on him.  Our Chief of Homicide took the cases and within six months had flipped the driver of the lookout car and had the three men inside the house on Death Row.  Things moved a lot faster in those days.

The robbers identified the house as that of a small time marijuana dealer and decided to stage a robbery.  Ferguson claimed to be a utility repairman to gain entrance (indicative of someone so mentally ill he does not understand what is going on?).   The problem was that the homeowner was not there, so the robbers waited.  As people came in, they were bound.  The robbers wore masks.

Eventually, with eight victims on the floor (six in one room and two in another) one of the robber’s masks fell off.  Fearing an identification, a decision was made to kill them all. Two people turned their heads at the last moment and survived.  They came to court and testified how the other six died.

Buford White stood at the front door with a gun to prevent anyone from trying to leave.  He shot no one, but was convicted of six counts of felony murder, inter alia (and various robbery and kidnapping charges).

Marvin Francois, and Ferguson went around shooting the victims in the head. They were also convicted as charged and sentenced to death.  All were tried separately; additional emotional trauma for the victims’ families. After this trial, Ferguson was tried and also convicted and sentenced to death for the murders of the young couple. In 1985 Francois was executed and after I argued to the governor (and later senator, Bob Graham) and clemency board, White was also executed, in 1987.

“Had White not blocked the door with a gun, who knows who might have tried to escape. His actions led to these six deaths, as much as if he pulled the trigger himself,” I offered.  Why is Ferguson still in court in 2012?  Good question.

In Florida, the Office of the Attorney General handles criminal appeals.  If a hearing is needed in which witnesses must testify, such as motions alleging ineffective assistance of counsel, or mental health issues, the AG, very fine appellate attorneys, call upon the State Attorney, the original trial prosecutors, to assist with these live witnesses.  The trial prosecutor, Bob Kaye, having been given a well deserved appointment to the criminal bench, could no longer handle this matter.  I was assigned.

Years after Ferguson’s convictions and sentences were upheld by the Florida Supreme Court, his attorneys filed motions arguing that he was too mentally ill to assist them in prosecuting his continuing appeals (involving numerous technical procedural matters). Mental health experts and lay people testified in state court at hearings in 1988.  The judge denied the motion on two grounds.  First the appeals were all legal matters and the lawyers did not need his help.  Whatever happened at trial was in the transcripts. Furthermore, the court found Ferguson to be malingering and embellishing his symptoms (He did have a history of mental problems, but they were far from those supporting an insanity defense or what was alleged here.  As a matter of fact, at the trial for the murders of the teenagers, an insanity defense was presented.  The jury rejected it.  A SODDI defense was used for the Carol City case—Some other dude did it!  That too was rejected.).

This was appealed to the Florida Supreme Court and they upheld the rulings. However, because the right to a fair trial is enshrined in the U.S. Constitution, what happened in the Florida courts is, what one federal judge once said, “merely interesting.”

So in 2004, we did it all again in federal court. Ferguson’s attorneys called three mental health experts.  The state countered with two forensic psychologists and a few correction officers and other personnel from Death Row. These lay witnesses have proved very effective over the years in these types of cases.  They see the defendant for upwards of forty hours a week, sometimes for years on end.  They talk about a variety of topics with the inmates, usually sports or current events.  On these topics there is no problem communicating. When I ask them if they ever saw the defendant act strange, or have a blank stare on his face, or make incoherent statements, they usually say, “Only when I tell him there is a doctor in the interview room.”

I tried a cop killer in the early 1980′s.  Early on, his lawyers asked for a competency hearing, as they were having trouble communicating with him.  A few doctors agreed.

At the hearing, I saw a young woman sitting in the courtroom.  Not knowing who she was, I called her to the stand, not having much to lose. Once she said she was his girlfriend I asked if she had visited him in the jail since his arrest.  “Yes.”  “What did he say?” I queried.  Her answer sealed his fate, “I think I fooled the doctors!!”

Tragically he too, has been on Death Row thirty years.

Back to John Errol. In Federal Court, the allegation was made that Ferguson had no concept of being killed.  If he could not appreciate the punishment, why impose it (History tells us the British navy used to suspend a flogging when the subject passed out. They waited until he was revived so he could “appreciate it.”).

We called as a witness a psychiatric nurse who worked on Death Row.  If she saw any conduct that merited the psychiatrist’s attention, she would so advise.  She also monitored Death Row mail for security reasons.  Seems Ferguson was pen paling a woman in Connecticut.  He wrote her that he did not want to be buried in the Potter’s Field behind the prison and asked her to bring his body to her church cemetery for a proper burial. So much for his lack of appreciation.

After the very experienced federal judge (who was the former chief state judge of the county) heard five days of testimony, he too, ruled that Ferguson was malingering.  In 2009 the U.S. Court of Appeals wrote a lengthy and very detailed opinion explaining the history of the case and pointing out how the judge below heard substantial evidence to support his ruling.  The U.S. Supreme Court denied further review the next year.

I remember seeing an elderly woman at the hearing in federal court.  She looked familiar.  Turns out I met her at the mental health hearing in state court years before.  She was the young man’s mother. She reminded me her son Brian would be 43 years old soon. I apologized for not being able to explain to her why we were still in court.  The young girl’s mother died a few months ago.  She had prophesized that Ferguson would outlive her.

Motions were still being filed as late as last week, alleging Ferguson’s mental health issues.  The governor appointed a commission to re evaluate Ferguson.  He was found competent to be executed.  Then a state judge held another hearing and more experts testified.  The corrections officers also testified again.  They said when Ferguson was advised the governor had signed the death warrant, he asked that they call his attorneys, his spiritual advisor and his family. His request for a last meal was also discussed. Again Ferguson was found to be competent.  The Florida Supreme Court affirmed.

In 2002, the Supreme Court of the United States ruled, in Atkins v. Virginia, 6-3, that executing mentally retarded individuals violates the constitution. Since then, it is amazing how many capital defendants allege they are retarded.

A death warrant was signed for the execution to be carried out in the month of October, 2012. The last week was hectic.  Ferguson’s execution date was set three times.  Each time it was stayed to allow his attorneys more time to file motions, twice by state courts.  The last stay was entered by the federal judge who heard the five day hearing in 2004, so he could entertain more arguments. That stay was lifted by the U.S. Court of Appeals, and the U.S. Supreme Court, having rejected his appeals several times, chose not to intervene.

Then hours before the scheduled execution, the court of appeals reversed themselves and stayed it again!  The Supremes upheld the stay.  Hearings will be held next month!

How do we explain this to the victims’ families, some of whom were at the prison waiting to see the sentence carried out?  Is there no justice for them?

David Waksman

Assistant State Attorney (Ret.)

Major Crimes Division

Miami-Dade County, Florida

David M. Waksman, J.D., is a nationally known former homicide prosecutor with vast experience in trying violent offenders and a former sergeant with the NYPD. He served for 35 years with of the Miami-Dade (Fla.) State Attorney’s Office, primarily in the Major Crimes Division. He teaches Case Preparation and Courtroom Presentation, Police Involved Shootings, Injury and Death Investigation and Criminal Law at the Miami Dade College School of Justice, In-Service Training Unit and at various police departments in South Florida.  His specialty is Fourth and Fifth Amendment issues. He has tried almost 200 jury trials, including 79 for first-degree murder. He is the author of the Search and Seizure Handbook, 3/ed.  It was cited by the United States Supreme Court in Hudson v. Michigan, 547 U.S. 586 (2006), available from Prentice Hall.