Too Dumb to Die
In the early-morning hours of Friday, July 25, 2002, Kevin Moore walked down SE Second Avenue in Deerfield Beach. The skinny, five-foot-nine-inch 23-year-old stopped in front of 1101 SE Second Ave., a yellow two-bedroom house that belonged to 92-year-old Yvonne Moss.
Aiming to collect $30 for painting two iron bars earlier that week, he walked up to the white front door and found it unlocked. He ambled into Moss' living room and then continued on to the kitchen, where he found a roll of clear packaging tape and a black-handled knife with a long, sharp blade. Next, he entered the bedroom, dropped the tape on the floor, and climbed atop Moss' slight frame, holding the blade to the neck of the sleeping elderly woman.
He pushed his jean shorts down to his ankles and pulled Moss' beige nightgown above her waist. Moss awoke and struggled. Moore held her down. With his free hand, he alternately massaged himself and touched Moss. He climaxed. Moss fought. Moore continued to restrain his victim for a few seconds before relinquishing his hold and slicing an opening into the 92-year-old woman's neck. Then he slashed her throat again. And again. Blood pooled beneath Moss' head. Moore took a pillow and covered his victim's pale white face. She was dead.
On his way out, the intruder took a gray belt and slipped it through the loops of his shorts. He walked four blocks back to his uncle's duplex, picked up a change of clothes, and then continued to a Mobil gas station on Federal Highway. In the bathroom, he rinsed his soiled clothing and placed it in a garbage can, leaving the stolen belt in the loops of his shorts.
Alex Regas, an employee of the gas station, walked into the bathroom as Moore changed. He startled the young man, who the attendant later told police had "wacky eyes." (The pupil of Moore's left eye points permanently to the bridge of his nose, making him cross-eyed.) Regas left, telling Moore he'd come back later to clean. Moore then walked out and caught a bus heading toward Fort Lauderdale.
That morning, David Moss, a 45-year-old private investigator, arrived at his mother's house to help prepare her meals for the day. After he found her body, Moss called police. "I'm never going to forget this," he says of the incident. "When that's the last thing you view of your mother, it's hard to get closure."
During the next week, the Broward Sheriff's Office pieced together the crime. Investigators gathered Moss' stolen belt and the attacker's discarded clothing, then took testimony from neighbors about a cross-eyed man who had trawled the neighborhood hoping to cut a deal turning green lawn clippings into green cash.
On August 23, 2002, the Broward State Attorney's Office charged Moore with first-degree murder and requested the death penalty. But Moore was spared execution on December 12, 2003, when he accepted a plea for life in prison. His indictment has since turned into something much more than a way to punish a man for killing an elderly woman. Complicating this case was the fact that Moore is mentally challenged; his 54-point intelligence quotient is 16 points below the line for retardation. Over the past 17 months, lawyers prosecuting and defending the alleged murderer have exposed possible problems in Florida law and raised questions about whether a mentally disabled man's crime can be so heinous that he deserves to die.
Seventy percent of Americans support the death penalty, according to a recent Gallup poll. But the country, on both state and federal levels, has spent the past decade debating how capital punishment should affect the mentally disabled. The issue first came before the U.S. Supreme Court in 1989, in the case of Texas murderer Johnny Paul Penry. At the time, the court did not prohibit Texas from executing the mentally disabled murderer, but in a majority opinion, Justice Sandra Day O'Connor explained that "evolving standards of decency" could one day sway the court.
In the years that followed the ruling, 16 state legislatures, including that of Florida, prohibited execution of the mentally disabled. In 2001, the Sunshine State added to the books Statute 921.137, which allows a judge to spare a mentally disabled person from death after a jury decides upon capital punishment.
One year later, the issue returned to the U.S. Supreme Court when it considered the case of a brutal killer from Virginia, Daryl Renard Atkins, whose 59-point IQ qualified him as mentally disabled. On August 16, 1996, Atkins and his friend William Jones spent the day drinking and smoking marijuana. That evening, Atkins borrowed a gun, and the pair went to a convenience store for beer. They panhandled until about 11:30 p.m., when they held up a patron, Eric Nesbitt; they took $60 from his wallet and then forced him to withdraw an additional $200 from an ATM. Afterward, Jones suggested that they tie up their captive. But Atkins had another idea. After driving to a secluded location, Atkins pulled Nesbitt out of the truck and shot the man eight times, killing him. The two were later arrested, and Jones testified against his friend.
A Virginia jury convicted Atkins of first-degree murder. His attorneys argued that the killer was unfit for the death penalty. In Virginia, as was the case in many states, mental deficiencies were considered mitigating circumstances. Atkins' low IQ might have qualified him for that description, but he carried out a sophisticated crime and was seemingly intelligent, according to trial evidence. In interviews with psychologists, he showed that he knew John F. Kennedy was president in 1961 and could provide the names of Virginia's two previous governors. Jurors were not convinced that the man was in fact mentally retarded. As a result, they unanimously chose to sentence him to death.
On June 20, 2002, however, the U.S. Supreme Court voted 6-3 to reverse the Virginia jury's decision, ruling that putting a mentally disabled murderer to death would be cruel and unusual punishment. "Mentally retarded defendants may be less able to give meaningful assistance to their counsel and are typically poor witnesses," Justice John Paul Stevens wrote in the court's majority opinion. Such defendants may also be unable to show remorse for their crimes because they do not fully understand what they've done, Stevens added.
Liberal organizations heralded the decision. "The U.S. Supreme Court has finally ushered the United States into the circle of civilized nations when it comes to such executions," Amnesty International Executive Director William F. Schulz said in a statement at the time.
But the Atkins decision never addressed a fundamental problem in diagnosing mental retardation: IQ levels can be deceiving. Although psychologists widely consider a 70-point IQ the line, some people with low IQs can live on their own, hold down jobs, and be responsible citizens. Even in Atkins' case, for instance, psychologists quarreled over the murderer's mental ability. The state's psychologist disagreed with the defense psychologist's assertion that Atkins was mentally disabled and instead insisted that he was of at least average intelligence.
"The details of Atkins' crime demonstrated some sophistication," says Michael Rushford, president of the Criminal Justice League Foundation, a pro-death penalty group that filed a brief in the Supreme Court case. "This wasn't someone like Lenny in Of Mice and Men. "
The problem in prohibiting such executions, Rushford says, is that tests for mental disability can be easily rigged. "If I tell you that you are probably going to be executed if you run fast," he says, "my guess is that you'll run slow." In its Supreme Court brief, Rushford's organization predicted that ruling in Atkins' favor would open floodgates on death row. All of a sudden, Rushford predicted, death row inmates from across the country would claim mental retardation.
And that's exactly what has happened. An estimated 10 percent of the nation's 3,500 death row prisoners are now appealing their sentences based on claims of mental disability. Among those in Florida now claiming mental retardation are Kenneth Watson, who was sentenced to death for the 1988 murder of a pastor's wife in Miami-Dade County, and Tommy Groover, condemned to die more than 20 years ago for a murder in Jacksonville.
"If my client was found guilty, he'd immediately become retarded," Rushford says jokingly. "I'd play One Flew Over the Cuckoo's Nest in his cell a couple of times. When you think of a mentally disabled person, you think of some helpless childlike person. This wasn't Atkins."
But was it Kevin Moore?
Kevin Moore's life was hard from the beginning. Joseph Moore, Kevin's father, was a ladies man who dabbled part-time in drug dealing, according to court records and depositions taken from the family. The accused killer's mother, Bernice, ignored her husband's infidelity because she had another lover herself: the bottle.
The family lived in a neighborhood of Deerfield Beach not far from the Palm Beach County line. Kevin was in many ways a strain on the family, remembers Priscilla Robinson, a neighbor who was also one of Joe's mistresses. Even as a small child, Kevin appeared to have significant mental deficiencies. "You [could] see that he looked like he had a little Down syndrome," Robinson said in a deposition. Kevin needed attention, more time and patience than his parents were either willing or able to provide. "It's like they really didn't have -- you know, he wasn't raised too much in a loving way, put it that way," Robinson commented.
Kevin was alone early in life. When the boy was 6 years old, Bernice died from complications of chronic alcoholism. He then lived with his father and one of his mother's brothers, a man the family called "Baby James." But that arrangement didn't last. When Kevin was only 10 years old, Joe Moore was charged with murdering 17-year-old Londrick Mauney.
On May 30, 1988, Joe Moore and an accomplice were cruising around North Broward in a white Pontiac with a vinyl top. They were hoping to score a kilo of cocaine. When the Pontiac pulled up near a graveyard in Pompano Beach, their purported cocaine supplier got in the back seat. It was Mauney. But instead of reaching for drugs, Mauney pulled a gun. "Give up the money," he ordered. Jumping into the back seat, Moore struggled with Mauney for control of the weapon until finally gunshots cut through the balmy night air, bullets piercing Mauney's body. Kevin's father later surrendered and pleaded guilty to third-degree murder, which resulted in a seven-year state prison sentence.
Kevin's grandmother, Hazel, took care of the boy. In 1989, she brought him to a psychologist who worked for Broward County Psychological Services. The boy's teachers had recommended that he be examined. In Kevin, psychologist Harvey J. Broman found a deeply troubled kid. In addition to having an IQ of 55, the boy suffered from frequent nightmares and was obsessed with masturbation, Broman found.
Kevin was picked on mercilessly in school, recalled Tremaine Robinson, Kevin's younger half-brother. In a deposition, Tremaine acknowledged that he made fun of Kevin until he learned in elementary school that they were related. "[The kids] picked on him a lot," Tremaine said. "At first, I didn't even know he was my brother until my auntie -- she had told me... I was one of [Joe Moore's] kids too... Until she told me, I used to pick on him a lot. And I was like defending him when I know him [as my half-brother]."
Indeed, Kevin was an easy target for cruel kids. He was cross-eyed, his clothing was mismatched, and he carried a girl's bag -- a pink My Little Pony backpack. "He just looked like a cartoon," Tremaine said. "It was a funny look. You know, he's not all there."
Kevin is a poor historian. He's been unable to give his attorneys a personal time line or even something as simple as the year or the school grade he was in when events occurred. His family is equally challenged to recall things about him. "They don't even have pictures of him as a child," says Dorothy Ferraro, one of the public defenders appointed to Kevin's case. One thing known is that, when Kevin ran away as a teenager, his grandmother and Uncle James never looked for him. In fact, they apparently never even reported the mentally disabled boy missing.
That's something that has stuck in Priscilla Robinson's mind for the past decade. When Kevin was 15 years old, she remembered in a deposition, neither she nor Tremaine had seen him for quite some time when, one afternoon, she walked over to the boy's house. Hazel and Uncle James were in the front yard.
They said Kevin was gone. He had run away.
"Nobody bothered to look for him?" Priscilla recalled asking.
Hazel and James dismissed the question. "They were like that, just like [indicating], just waved their hands," Priscilla explained. "And it just hurt me that a parent and grandmother and all could even feel this way about their own blood."
Months later, Kevin returned, and unnamed family members told Tremaine that the teenager had been exploited. "Some guy had him on drugs, and he was using him as like a boy toy," Tremaine explained. "And I know the family never really took him in. So it was like Kevin ain't -- he ain't all together as a person, you know. So it was like the family, like I said, they don't never help him out or anything. So pretty much everything that he got, he had to go out and get on his own."
Kevin told a court-appointed psychologist that he had been sexually assaulted "by some guy I was living with." He had also contracted HIV. In 1997, he was arrested for possession of cocaine and drug paraphernalia. He received 18 months of community supervision. Kevin admits to being sexually promiscuous despite his HIV-positive status and says he first tried crack cocaine at 18 and began to experiment with ecstasy in his early 20s -- two of the few life events he seems able to pinpoint.
By the time Kevin was 23 years old, drug use was a daily activity. "This young man has -- he has a bad... a very sad, sad life," Priscilla Robinson said. "I believe if his mother probably would have survived, it might have been a little better for him because he didn't have anyone to give him love, to show him, you know, what it means to love and to care... He was like a thrown-away child or something, tossed out there to the wind or whatever comes about just comes about."
For several years before his arrest, Kevin lived on Fort Lauderdale Beach, sleeping on the sand with a girlfriend and sometimes staying at his Uncle James' duplex at 1433 SE Second Ter. in Deerfield Beach. He worked odd jobs, moving from house to house looking for maintenance work. "He cut a few yards out there...," James Moore recalled. "He probably get $5 then and get $5 when he get done. And like that's how he be doing all his life since I know him."
When Kevin knocked on Uncle James' door the night before the murder, he was high on crack, James recalled in a deposition. James suggested that his nephew sleep in the chair outside. The next morning, according to Kevin's statement to police, he woke up and smoked a rock of crack cocaine. He then strolled down SE Second Avenue toward Yvonne Moss' home.
Jennifer Oscarson, a 22-year-old woman who lives in Yvonne Moss' Deerfield Beach neighborhood, was on Fort Lauderdale Beach with friends on August 3, 2002, nine days after the murder.
As she and her friends walked down A1A near the Elbo Room, they saw a funny sight: a young black male walking up and down the sidewalk, singing songs and begging for money. "We were actually laughing because he was being a fool," she would later tell police.
The young man asked Oscarson for a cigarette. She pulled out a Black and Mild cigar. "As I handed it to him is when I caught eye contact with him," she explained. "And immediately I noticed the cross eyes."
"What's your name?" she asked him.
"Kevin," he replied.
Oscarson suddenly knew he was the man suspected of murdering her elderly neighbor. She had been one of several neighbors who told police about the suspicious lawn man. Oscarson knew this was the guy: "What more evidence did you need than that, a cross-eyed black guy named Kevin?" she told officers.
The young woman knew she needed a way for police to find him. She asked what kind of work he did. "He said that he did pool maintenance," Oscarson remembered. She asked him for a phone number, telling him that her mother might need some work done. Kevin left and returned with a tattered business card for his uncle's pool-cleaning business. At that moment, a Fort Lauderdale police cruiser pulled up. Kevin immediately took off.
After Oscarson informed the officers that the panhandler was in fact a murder suspect, Fort Lauderdale police chased him down and took him into custody. Rick Libman, a homicide detective with the Broward Sheriff's Office, interrogated the suspect.
"Did you do some work for [Yvonne Moss] a while back?" Libman asked him.
"What kind of work?"
"Yard work," Moore answered.
"All right, and did she pay you for it?"
"How much money does she owe you?"
"OK, and did you ever try and collect that money?"
"And what happened with that?"
"I didn't get it..."
"Tell me what happened from the beginning," Libman continued.
"I walked in," Moore answered. "I'm right there, and I killed her."
"OK, well, how did you get in the house?"
"The door was open."
"Was it wide open or just unlocked?"
"It was just open."
"OK, and when you go in, where do you first go?
"To her room..."
"Tell what you did first when you got in there," Libman instructed.
"I just raped her... I played with her private with my dick, and I fucked her, and then I raped her."
"You did fuck her?" Libman asked.
"And then I killed her..."
"How did you kill her?"
"Cut her throat..."
"Why did you cut her throat?"
"I did it because I was scared," Moore said.
"What were you scared of?"
"She might have woke up and told."
"And what happens if she woke up and told?" Libman asked.
"I would have been in jail."
Libman turned Moore's confession over to the Broward State Attorney's Office, which on August 23, 2002, filed felony charges for first-degree murder, armed sexual battery, abuse of the elderly, and armed burglary. At the same time, Assistant State Attorney Peter Holden informed the court of his intent to seek the death penalty. That decision would spark a yearlong battle between the State Attorney's Office and the Broward Public Defender's Office -- a legal clash that highlighted possible problems in Florida law.
Bill Laswell is a charming man who stands less than six feet tall. The only thing quicker than his wit is his proclivity for telling stories. A 64-year-old self-effacing lawyer with oversized eyeglasses, Laswell has a dark-brown head of hair resting above a grandfatherly beard that grays gradually as it moves above his prominent cheekbones. His desk, nestled in the rear of an office that houses lawyers who handle juvenile and capital cases, is covered with neatly organized stacks of documents.
The veteran assistant public defender walks to the left side of his desk and pulls out a poster-sized color picture. In the photograph, a pudgy middle-aged woman sits at a kitchen table, her torso resting on its edge. Blood covers the white tabletop; the body stops at the neck. Then he pulls out another large snapshot. It shows a woman's head, the flesh yellowed and drooping off the skull. "The head was outside," Laswell says gruffly. "You can see how the rate of decomposition differs in air conditioning."
In his three decades in the Broward Public Defender's Office, Laswell has had the unenviable position of defending the indefensible: brutal murderers who prey on innocent victims. "I represent truly unpopular folks who did brutally unpopular things," he says.
Laswell, whose clients have included serial killers Lucious Boyd and Eddie Lee Mosley, has for most of his career dueled prosecutors representing one of the most merciless states in the nation. According to a Columbia University study of capital cases from 1972 to 1995, Florida had the most death convictions in the nation, with 889. What's more, with 55 death verdicts in that period, Broward was the 14th most likely county in the nation to seek the death penalty. In Florida, only three counties had more death convictions than Broward: Miami-Dade, Hillsborough, and Duval. More troubling, 88 percent of Broward's 55 verdicts were later overturned, a rate much higher than the national average.
And it's expensive. According to Floridians for Alternatives to the Death Penalty, it costs the state $3.2 million to convict and execute a single man, six times more than it would cost to incarcerate him for life.
That might explain why much of Florida's death penalty is political sound and fury. Despite hundreds of death convictions, the state has executed just 57 people, including four suspected of mental illness or retardation since John Earl Bush was electrocuted in 1996 for the murder of Francis Slater, heir to the Evinrude outboard motor fortune. (Bush was the last mentally challenged defendant to be executed.) Still, prosecutors in Broward and elsewhere continue to seek the state's highest level of punishment.
The Broward State Attorney's Office wanted such retribution in the case of Kevin Moore. On an early December afternoon, Laswell was particularly troubled by the case. Since Moore's indictment in summer 2002, he and his co-counsel, Dorothy Ferraro, have had a hard time establishing circumstances that could sway a jury to save him from the death penalty. It took Laswell and Ferraro, for instance, three subpoenas to force Moore's grandmother and uncle to provide depositions about the alleged killer's childhood.
Yet it's not Moore's uncooperative family that bothers him most. It's that public resources, time, and money even need to be spent crafting a full murder defense. Moore's first IQ test, at age 10, showed him to be mentally disabled. A second one, paid for by the state after Moore had allegedly murdered Moss, pegged his IQ at 54. Based on this evidence, Moore cannot be executed, according to Florida law and the U.S. Supreme Court. Yet the Broward State Attorney's Office still treated Moore's prosecution as a capital case.
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."
Seiler's is among many questions still left unanswered in the wake of the Atkins ruling. This year, the Florida Supreme Court is expected to rule on the case of Clarence Jones, who was sentenced to death for the July 7, 1988, murder of a Tallahassee police officer. Jones has appealed his sentence based on claims of mental disability, and his case should force the state Supreme Court to determine how mental retardation is legally defined.
Other death row appeals based on retardation in Florida have been put on hold pending the Supreme Court's ruling in the Jones case. Among those pending cases is that of Sonny Boy Oats, who in December 1979 killed a woman in an Ocala convenience store during an armed robbery.
Now, most capital trials involving those claiming mental disability have a familiar outcome: The defense's psychologist supports those claims, while the prosecutor's psychologist refutes them. That's what happened in the Atkins case and would have likely occurred in the Moore trial had the accused not accepted a plea deal. The truth is, determining mental ability is a subjective process fraught with opportunities for manipulation.
Until guidelines are established by the courts, it's impossible to know how many of the approximately 350 death row inmates nationwide appealing their sentences are indeed mentally retarded, says Martin McClain, a Fort Lauderdale attorney representing Oats in his mental-disability appeal.
"It's hard to do anything with these cases until we have some sort of framework," McClain says. "A lot of people have a problem with leaving the diagnosis of mental disability to experts, because it's obviously difficult to draw the line, and it's obviously difficult to evaluate someone. The U.S. Supreme Court has ruled that we cannot execute the mentally retarded. Now it's up to the state Supreme Court to define retardation."
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