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Criminal Justice News
Friday, October 26, 2012
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
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
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
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
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
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
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?
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.