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Judge Denies Mental Competency Hearing for Boy Who Killed Six- Year-Old

Aired March 9, 2001 - 9:30 a.m. ET


KYRA PHILLIPS, CNN ANCHOR: We're going to listen in as Judge Joel Lazarus begins the sentencing for 14-year-old Lionel Tate and his fate for the killing of a six-year-old girl.


JUDGE JOEL LAZARUS, BROWARD COUNTY CIRCUIT COURT: ... equate disinterest with a lack of ability to understand.

A great deal of the testimony -- indeed, the most majority of the forensic testimony -- was complicated and replete with medical terms. At no time did counsel nor consultant talk about bringing to this court's attention their fear of their client's ability to proceed because of incompetency.

His verdict was delivered Thursday, January 25th, 2001. This was after the court made inquiry of the defendant as to his desire to retestify or not at time of the trial. The court of making this inquiry had no concern on his own, nor was any concern raised, as to the issue of competency to proceed.

After the verdict, when the defendant was remanded to the custody of the sheriff, there was no question and no request made as to any special arrangement because of his mental state. No issue of competency was raised then.

Between the date of arrest in July 1999 until the verdict was received, in January of 2001, Lionel Tate had had contact with, in various degrees, his counsel, Mr. Lewis; his counsel's adviser, Dr. Spencer (ph); and Dr. Butts (ph), Drs. Brandon (ph), Shari Ball-Kotter (ph), Joel Clasp (ph), Wily Mittenburg (ph); David Sharp (ph), pre- trial release supervisor; Mrs. Grossett-Tate, his mother; Assistant State Attorney Ken Katowitz (ph); the independent associates helping to make sure Lionel Tate follows the rules of his relief; teachers; friends; relatives. I'm sure scores of other individuals have been left out, including this judge, who presided over so many hours of hearings in this case.

No one ever has questioned Lionel Tate's ability to proceed. Competency was first raised orally at a hearing on February 16, 2001, by named appellate counsel, Mr. Rosenbaum (ph). Mr. Rosenbaum's request did no comport with the crime in so far as the rules of criminal procedure 3.210, and 3.214 was denied. On March the 2nd, 2001 -- 14 days later -- Mr. Rosenbaum again renewed his already tenuous request for a competency hearing. This court first took steps to initiate such a hearing, but again denied a request because of a failure to comply with Florida rules of -- excuse me -- of criminal procedure. Why the rules were not complied with in that two week period can only be a matter of conjecture by this court.

On Tuesday, March the 6th, after the clerk's office closed and as this judge was preparing to leave the courthouse, a courier delivered a written motion supposedly complying with Florida rules of criminal procedure. The media was either fast or had hands all over the copy at the same time: Both local papers made full comment of it in the papers the next morning. I can only, again, conjecture where the copies came from, as the clerk's office had been closed.

It's unbelievable the defense waited from February 16th, 2001, until March 6, 2001, to comply with the rules of criminal procedure, a total of a day less than three weeks. The rules state that the motion for a competency hearing must state "reasonable grounds for belief the defendant is not mentally competent to proceed." The rule further states that there be a recital of specific observations which form the basis of the motion.

For the reason stated within this order, and the specific findings of this court, this motion for competency hearing is denied. It is of interest to this court, while the trial attorney failed to join in and sign the affidavit in good faith? It is of interest that while others who are -- copied the motion or the attorneys -- well, Larry Davis, Perry Thurston (ph) -- both without official standing in this case at the time I wrote this order -- and the attorney general weren't noticed.

The motion filed by appellant counsel's based on three affidavits. The wording of each affidavit is strikingly similar to each other. The motion itself falls far short of the requirements of 3.210. The affidavits contain no grounds with any degree of specificity. The affidavits fail to state when the information was forthcoming, and in all cases based on a great part on hearsay.

Attorney Rosemont's (ph) affidavit speaks out in generalities. It raises inability to communicate without any clarification. It mentions the age of defendant as a ground per se to find an competent to proceed. It raises the defendant's mental age per se as his ground to stop proceedings.

These issues were litigated. They are not valid reasons today under 3.210. It raises the defense ability to understand fully past trial proceedings. The state said the defendant was not or did not understand the sentencing procedure, that a review of the defendant's comments in the PSI and Department Of Juvenile Justice staffing totally disprove this point.

Finally, the defendant cannot quote "integrate," synthesize, appreciate the spectrum of possible ramifications, and is grossly deficient and not grounds that are substantiated by the mandate of the rule. In sum, there's nothing in Mr. Rosenbaum's affidavit that would give the court reason to halt these proceedings and delay sentencing. There's nothing to suggest with any specific reasons that the court should find Lionel Tate incompetent. I'll hold a hearing to make such a determination.

Dr. Wily Mittenberg filed an affidavit, undated, although sworn to on March the 6th. There was no indication when he made the observations for which he swore. We do know that Dr. Mittenberg saw Lionel Tate twice on a one-on-one basis: June the 2nd and June the 12th of the year 2000, nine months ago. If he has interviewed, spoken with, or observed the defendant on other occasions, other than when he testified from the witness stand, Dr. Mittenberg did not indicate in his affidavit.

This clinical neuropsychologist's affidavit must be considered untimely. And for Dr. Mittenberg to swear that the defendant is now incompetent without a basis renders his affidavit as insufficient to support counsel's motion. It should be noted that Dr. Mittenberg's basis for his opinion is, once again, the defendant's age and his mental age. He states that Lionel Tate cannot integrate, synthesize, appreciate the spectrum of possible manifestations.

Obviously, this abuse from nine months ago -- and they're not based on current opinion -- these are attorney-based words, not based on current analysis. Dr. Mittenberg has failed to raise those issues as to legal competency to proceed the sentencing until March the 6th.

And associative attorney Rosenbaum, attorney Denise Brawgoff (ph) has filed her affidavit also, signed on March 6th. She, I assume, has been with attorney Rosenbaum since the filing of his notice of appellate counsel. She was present since the February hearings and also, likewise, failed to raise the issue of incompetency until the very last hours before sentencing was due to be imposed.

Attorney Brawgoff reiterated that her grounds, like her associate, could only be raised in an in-camera proceedings (ph). The court does not recognize the existence of such a procedure, under rule 3.210. And that the state, basically, in her affidavit, that grounds reasonably exist that I -- we -- cannot disclose them, even in the most simplified form, does not allow that -- this court to have a hearing on the competency without more.

She raises, once again, defendant's chronological age; she raises defendant's mental age -- both of which are rejected as grounds per se.

The other paragraphs in the affidavit are more a rehash of what has been discussed previously and do not create sufficient grounds.

His (ph) side of the court asked Lionel Tate if he knows what was happening, and he said no. This is not accurate. When the court inquired of Lionel Tate if he understood, his answer was yes. It was when we discussed the waiver of attorney and client privilege that the answer became more ambiguous. This break-off in her affidavit recognizes that, in all probability, there was a mandatory sentence, which must be imposed. The concept of a life sentence, while surely unpleasant, is not overly complicated. The statement of many other factors, without more, is insufficient grounds to find a hearing necessary. The motion for competency hearing, at this time, is inadequate as a matter of fact and as a matter of law.

Finally, both sides have been presented with copies of the pre- sentence investigation done by Richard Bonkowski (ph) of the Department of Correction. In his extensive preparation, Mr. Bonkowski spoke with Dr. Wily Mittenberg, who failed to raise his concern to Mr. Bonkowski for the defendent's capacity to be sentenced -- competency, rather, to be sentenced. Dr. Spencer failed to his raise his concern to Mr. Bonkowski as to competency of the sentence. Dr. Joel Clasp, the same, Dr. Michael (ph) Brandon, the same, Dr. Shari Ball-Kotter, the same, and many, many more who Mr. Bonkowski interviewed.

Only Dr. Butts expressed concern to Mr. Bonkowski. She described Lionel Tate's reactions and adjustments to be "incomprehensible." This does not in and of itself raise an issue to this court to hold a competency hearing. Dr. Butts has been present since January the 8th, and probably long before, as a consultant to Mr. Lewis. She never once raised issue to the court. She had concerns. She absolutely should have raised it to attorney Lewis and/or the court. Dr. Butts did not file an affidavit on the motion, even though she was with the defendant closer that virtually anyone else.

Finally, Mr. Bonkowski referred to the Department of Juvenile Justice staffing. There are 18 participants that are there staffing. Not one person has been reported as questioning competency.

Mr. Bonkowski interviewed the defendant, and his comments - within the PSI -- and without going into the PSI, Mr. Bonkowski's opinion of demeanor, the words that were attributed to defendant, did not raise any indication that Mr. Bonkowski -- at least any indication that he addressed to this court -- that he felt that Lionel Tate was incompetent to proceed. He stated that Mr. Tate's demeanor was appropriate, and his knowledge of what is going on is adequate.

Based on all the above, the court declines an appointment of evaluators. Similarly, there are no grounds to do so.

Your objection is noted.

UNIDENTIFIED MALE: ... and ask...

LAZARUS: Good night.

UNIDENTIFIED MALE: ... for time to go to the court DCA to review your decision (ph)?

LAZARUS: Good night.

We are now going to proceed. And I told you last week that you have opportunity to argue your motion for new trial, motion for reduction of sentence.

Once again, the emotion for new trial was extensive. State's response: motion of new trial was extensive. You filed two supplemental motions for new trial. State filed two sponsors to supplemental motions for new trial. I have read every word ...

PHILLIPS: You've been listening to Judge Joel Lazarus, Broward County Circuit Court judge, live from Fort Lauderdale, Florida, as 14- year-old Lionel Tate learns his fate today for the killing of a 6- year-old girl. So far, the judge has denied a competency hearing. He has also denied a motion for a new trial suggested by the defense attorney.



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