http://www2.tbo.com/content/2009/jun/27/na-inmates-case-is-in-legal-limbo/news-breaking/
Inmate's case is in legal limbo
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By MARK DOUGLAS
mdouglas@wfla.com
Published: June 27, 2009
Convicted killer Franklin Delano Floyd says there are plenty of inmates on Florida's death row trying to avoid execution by acting crazy, but he's not one of them.
"I don't claim to be mentally ill," said Floyd, 66, at a Tuesday competency hearing in Pinellas County Circuit Court.
He does claim, though, to be the illegitimate son of longtime FBI Director J. Edgar Hoover and says he longs to see his "son" before he dies - a boy he kidnapped in 1994 and prosecutors suspect he killed. After his mental competency hearing, Floyd announced plans to file a billion-dollar lawsuit against his attorneys, prosecutors and the judge for mishandling his case.
Floyd's case sheds light on a corner of the justice system that seems ill-prepared to handle delusional inmates such as Floyd who are declared legally incompetent after their convictions. Compounding the problem is Floyd's refusal to take the medication that might make him legally competent, thus able to understand legal proceedings and to assist in his defense.
Uncharted territory
Most Florida laws and rules of procedure dealing with competency involve defendants found incompetent prior to trial. Post-conviction incompetence is, in large part, uncharted territory, according to Circuit Judge Nancy Moate Ley, who is deciding for the third time whether Floyd is competent. Since his conviction seven years ago, she has twice ruled he is not and ordered treatment.
Prosecutors view him as a depraved killer with a sinister past, involving kidnappings, child molestation and possibly other murders.
"He clearly in my view is one of the worst of the worst," said State Attorney Bernie McCabe.
McCabe says Floyd has just manipulated mental health professionals into delaying the legal process leading to execution with his strange claims and behavior.
"I think he's perfectly capable of fooling a bunch of folks, McCabe said.
Ley sentenced Floyd to die in 2002 for murdering a teenage stripper in 1989. He dumped the body of Cheryl Ann Commesso, 18, along Interstate 275 in St. Petersburg and kept Polaroid photos of her bound, beaten and sexually posed body hidden under a truck he stole during a kidnapping years later.
A road worker discovered Commesso's remains March 29, 1995, after accidentally kicking her skull while clearing underbrush. A day later, someone in Kansas City Kan., found the photos of her under the stolen truck that linked Floyd to her murder.
Forensic psychiatrist Ryan Estevez just completed a 30-page report on Floyd after examining him at length and reviewing more than 2,000 documents about him.
He agrees with McCabe that Floyd always will be a dangerous man.
"He's violated just about every taboo we have in society," Estevez said.
Estevez, though, does not think Floyd is faking mental illness.
"Mr. Floyd is very cautious when speaking about things that he suspects might make him look delusional or crazy or something like that," Estevez said.
During the sentencing phase of his murder trial, Floyd testified that his childhood was scarred by abandonment, molestation and his mother's alcoholism.
Violet Assaid runs the mental health division for the public defender's office that serves Pinellas and Pasco counties and was involved in the early stages of Floyd's defense.
Floyd had to be "broken" to do all the heinous things he's done, she said. At a minimum, he meets the legal standard for incompetency, Assaid said.
"The truth of the matter is that most of the people on death row probably meet the criteria for incompetency," Assaid said.
Floyd's courtroom ramblings, persistent outbursts and delusional claims have convinced state-appointed defense attorneys, four doctors hired to examine him and Ley, who sent him to death row, to conclude Floyd is not legally competent.
Four years ago, Floyd lost an automatic appeal of his case to the Florida Supreme Court. His attorneys began a series of collateral appeals, but those stopped when Ley first declared Floyd incompetent. Because his appeals are frozen, that also precludes the state from executing Floyd.
In Floyd's case, the rules have produced a frustrating ping-pong effect, with the judge declaring him incompetent and ordering treatment, doctors working for the state Department of Children & Families declaring him competent again and the judge sending him back for more treatment, after another finding of incompetence.
DCF based its most recent finding of competency, in part, on Estevez's report, even though the psychiatrist says Floyd is incompetent.
That's just one aspect of Floyd's case that's unusual.
"There is no provision in the rule of law for continuing incompetency for someone on death row," said Marie-Louise Parker, a lawyer with Capital Collateral Regional Counsels, the state agency that handles appeals for death row inmates.
Legal process is frozen
Parker's agency is at the beginning stages of automatic appeals in Floyd's case, Parker said. Even under the best of circumstances, appeals to state and federal courts can last years, but Floyd's incompetence has frozen the process in his case entirely.
It's a kind of legal limbo that has mired at least three other death row inmates' cases, Parker said. None of them has been executed.
Further complicating Floyd's case are his desire to fire his attorneys and represent himself, and the question of where he can be treated if DCF agrees he's incompetent.
Prosecutors fear that Floyd might attempt to escape, as he has before, if he's transferred to an outside state hospital for more effective treatment. DCF says it has no plans to move him. One option might be the Crisis Stabilization Unit at the Union Correctional Institution, where Floyd is incarcerated.
Floyd thinks a judicial conspiracy is behind his murder case, Estevez said.
In court Tuesday, Floyd suggested his prosecution has more to do with unanswered questions about the 6-year-old boy he kidnapped in 1994 than Commesso's murder.
Michael Hughes was the son of Sharon Marshall, a woman authorities say Floyd kidnapped as a child, raised as his daughter, then lived with as his wife before she died in an unsolved hit-and-run crash in which Floyd was a suspect.
When she was living with Floyd in Pinellas Park, Marshall danced with Commesso at the Mons Venus strip club in Tampa. Hughes was last seen alive in 1994 after Floyd kidnapped the boy and his principal at gunpoint from a school in Oklahoma. He left the principal handcuffed to a tree, but prosecutors suspect Floyd killed Michael.
Floyd has never said what happened to the boy but talks about him.
"I rescued him and got 50 years for it, and they put this death sentence on me to pressure me to give him up," Floyd said during a tirade before his hearing Tuesday.
"I want to see my son before I die."
A looming legal issue in Floyd's case is whether the courts can force a death row inmate to take medication that will help make him competent. Both Maria Chamberlin, another agency lawyer working on Floyd's case, and Chief Assistant State Attorney Bruce Bartlett, one of the prosecutors who helped convict Floyd, say that's an unprecedented circumstance.
The competency questions raised by Floyd's case involve several prickly legal issues and at least one irony: the requirement to heal a convicted killer's mental illness as a legal precursor to executing him, said Robert Batey, a law professor at Stetson University.
"It's the fundamental illogic of the system," Batey said, "The idea that we have to treat someone to be competent so we can execute him."
The ongoing effort to evaluate and treat Floyd to enable his appeals involves a huge investment of resources in a system ill-equipped to manage the problem, Estevez said.
"It's an absolute mess," he said.
No treatment, though, can change Floyd's criminal nature, Estevez said.
"There's no pill out there that's going to make you a nice guy."
Reporter Mark Douglas can be reached at (727) 451-2333