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That's because Florida law doesn't offer a choice. A defendant's mental ability is determined only after guilt. Taxpayers have had to spend thousands of dollars unnecessarily in Moore's case.
In August, Laswell attempted to persuade Circuit Judge Ana I. Gardiner to ignore procedures established by the legislature and determine Moore's mental ability prior to trial. Deciding before the trial would save the state a considerable amount of money, Laswell argued: "This procedure makes no sense fiscally, logically, or otherwise. If the court were to determine whether the defendant was mentally retarded at the outset of trial, a large amount of time and money could be saved."
Gardiner denied Laswell's motion, citing the procedural constraints provided by the legislature and state Supreme Court, but she did send a message from the bench: "The court believes the interest of justice would best be served by permitting the trial court, in appropriate cases such as this one, to make the determination before a trial is conducted, that a particular defendant is mentally retarded and thus not eligible to be sentenced to death."
That message has a state legislator from Pompano Beach considering a change to Florida law.
Judge Ana I. Gardiner is a striking woman with thick brown hair and large, round, dark eyes shining like onyx amid her olive skin. Kevin Moore sits in the corner of her jury box on the morning of Friday, December 12, 2003. His hair is cropped close, and he wears a loose-fitting blue uniform issued by the Broward Sheriff's Office. From across the courtroom, his cross-eyed scowl is as noticeable as his oversized ears.
The attorneys, Holden, Laswell, and Ferraro, all know why they're here today, but none can be positive Moore won't mess things up. After all, Holden has had a plea deal on the table for months: life in prison without the possibility of parole. But every time Laswell and Ferraro have attempted to convince their client to take the plea and forego a jury trial, Moore has refused, citing advice he received from a jailhouse lawyer.
But for some reason, on December 10, Moore changed his mind. He made frantic calls to Laswell, informing his attorney that he was ready to accept the plea.
As noon approaches, Moore is unhappy with having to plead in his prison uniform and asks to wear his red and black button-up shirt. Breaking procedure, a BSO deputy agrees to slip it over the uniform. As the deputy buttons the shirt, Moore looks up and his face contorts. He sobs.
Gardiner proceeds. She asks Moore to raise his right hand. He raises his left, then shakes his head in frustration. "That's OK," Gardiner says. After asking a number of questions regarding Moore's current mental state, Gardiner asks the defendant if he'd like to say anything.
Moore's response is puzzling. "I don't have no family," he says, pausing. "I know what I've done is very serious... But I'm asking if you can let me out for one day so I can go home and, please, see my family and my grandmother."
"Mr. Moore, unfortunately, I have to decline that request," Gardiner responds. "The court will not grant any furloughs in this matter, and today you will be remanded into the custody of the Department of Corrections and then be transferred to a Florida state prison. Does that change your desire to take a plea?"
Moore shakes his head, crying, and says softly, "No, ma'am." Gardiner then approves the plea and orders Moore to prison for the rest of his life.
Dressed in all black, David Moss, the victim's son, walks out of the courtroom. He has mixed feelings about the plea deal. "I wanted my personal vengeance, but I've heard the horror stories about capital punishment and how it drags on 10, 15, 20 years," Moss says. "At this point, as long as he's locked up and there's no possible way he could ever get out, we could do without capital punishment."
But Moss admits that he does wonder whether Moore is in fact mentally disabled. "The guy's sick," he concedes. "He must have some sort of mental illness. Killing a 92-year-old woman, it's like doing it to an infant. She's like an infant. You have to have some mental issues. But I don't think he's retarded. If he was retarded, it seems like he has enough sense to ask for a shirt."
Retarded or not, Moore will become the subject of debate in the halls of the Florida legislature this year. Rep. Jack Seiler, a pro-death penalty Democrat from Pompano Beach who sponsored the Florida law that prohibits execution of the mentally disabled, plans to cite the case in asking lawmakers to reconsider when to determine mental ability in capital trials. "It's clear that Judge Gardiner sent us a message," he says.
Seiler will present the Moore case in three influential House committees: judicial, criminal punishment, and judicial appropriation. He hopes to invite Laswell and Holden to Tallahassee to explain firsthand how the death penalty affects mentally disabled defendants. Then he and his fellow lawmakers can decide when it's most appropriate to decide mental ability in a capital case. "This is not light legal work," Seiler says. "These are very tough cases to prosecute and very tough cases to defend. If the resources are not necessary, if [mental capacity] is determined up-front, maybe you'd save some resources. But I have not yet come to that conclusion."