The state of Florida is pushing for the execution of an elderly prisoner with paranoid schizophrenia despite a Supreme Court ruling that prohibits executing the mentally ill. Among his many delusional thoughts, 64-year-old John Errol Ferguson believes that he is the “prince of God” and that he can speak with his dead father.
Thus far, Republican Gov. Rick Scott and the state’s courts have rejected Ferguson’s claim of incompetence, ignoring four decades worth of mental health diagnoses by state-appointed psychiatrists stating otherwise.
Ferguson is scheduled for lethal injection on October 16 for his role in a 1977 mass murder that shocked Miami-Dade residents. Posing as a power company repairman, Ferguson entered a home where he and two others shot to death six people in an execution style line up. Back then, the Miami Herald called it “the worst mass murder in Dade history.” Ferguson was also convicted of the 1978 murder of two teens from nearby Hialeah.
Ferguson’s lawyer, Christopher Handman, tells Truthout that executing his client would constitute cruel and unusual punishment because he lacks a rational understanding of why he is being put to death, as laid out by two Supreme Court rulings.
The Supreme Court banned executing the mentally ill – first under Ford v. Wainwright (1986) and expanded in Panetti v. Quarterman (2007) – ruling that it violates the Eighth Amendment clause against cruel and unusual punishment. To ensure due process, the court established that prisoners alleging mental illness are entitled to a competency hearing – comprising a mental health evaluation by independent experts and an evidentiary hearing in front of a judge – to determine whether they are competent enough for execution.
Ferguson’s case marks the first time since the Panetti ruling that Florida has encountered an incompetence claim. As a result, Handman says, “There really isn’t a standard approach in Florida, so they’re making up the rules as they go along.”
Late last month, Governor Scott addressed Ferguson’s competency claim by appointing a three-psychiatrist commission and giving them just one day to examine Ferguson and report their findings.
Criticizing the governor’s lack of transparency, Handman told Truthout, “Much of the process is shrouded in secrecy, so we don’t know what steps the governor took, what criteria he used, whether these psychiatrists are paid for their services, what connection they have to the state.”
On October 1, the commission spent less than 90 minutes sifting through Ferguson’s mental health records comprising 50 years and thousands of pages worth of 40 diagnoses of psychosis and schizophrenia. According to Handman, in under 90 minutes spent interviewing Ferguson, the commission failed to conduct a single diagnostic test. Still, on the same day of the exam, they managed to produce a page-and-a-half report for Governor Scott concluding that Ferguson is competent for execution.
Ferguson’s attorneys appealed, arguing that the state of Florida failed to give their client a fair competency hearing and that Florida’s procedures for determining competency are unconstitutional. A competency hearing has since been set for Tuesday, October 9, and Wednesday, October 10, in front of a Bradford County state judge who will determine whether Ferguson is sane enough to die.
“He’s Faking It”
The commission’s short report vaguely explains Ferguson’s delusions as “a combination of his genuine religious belief that there is God and attempting to feign religious delusional thinking.” It goes on to accuse Ferguson of “feign[ing] other psychotic symptoms” during the interview, such as “seeing an occasional shadow person and once seeing dogs come out of the cell wall.” This accusation reflects the prosecution’s principle argument that Ferguson is “malingering,” or faking, mental illness. Assistant Attorney General Scott Browne applauded the commission’s report, calling Ferguson “a good actor.”
Meanwhile, Richard Rogers, an expert in forensic psychology who literally wrote the book on identifying malingering, concluded after a comprehensive examination that Ferguson is not “feigning” his symptoms.
George W. Woods, an expert in neuropsychiatry who examined Ferguson three times in the last year, agreed with Rogers’ assessment, adding that: “To conclude otherwise requires one to believe that a borderline mentally retarded man created a sham over four decades, that predated the crimes for which he is under sentence of death and that has fooled scores of mental health experts, including multiple experts appointed by the State. That is a highly implausible conclusion.”
The commission report also claims that Ferguson “understood the nature and effects of the death penalty and explained that he will be given a ‘lethal injection’ that will end his life.” But, as determined by the Supreme Court decision in Panetti, “[a] prisoner’s awareness of the State’s rationale for an execution is not the same as a rational understanding of it.” Furthermore, the Supreme Court argued that executing a prisoner who “has no comprehension of why he has been singled out and stripped of his fundamental right to life” undermines the concept of retributive justice. According to Woods’ assessment, Ferguson lacks this rational understanding because delusions have led him to believe that the state is conspiring to execute him because he is the “Prince of God,” and that upon his execution, he will be resurrected “like Jesus.”
The prosecution’s argument is further complicated by Ferguson’s mental health history. According to his lengthy records, Ferguson spent most of the 1970s in the state mental health hospitals. He was repeatedly evaluated by seven court-appointed psychiatrists who determined that he was a paranoid schizophrenic with “grossly impaired judgment” and no understanding of the difference between right and wrong. By 1976, their reports had become increasingly alarmist. They strongly advised that Ferguson stay hospitalized, warning that he was a “dangerous person to both himself and to others.” Against the prescient advice of several court-appointed doctors, the state released Ferguson, and less than a year later, he went on a killing spree, facts which were never raised at trial.
Handman points out that it wasn’t until Ferguson was arrested in 1978 that the court-appointed psychiatrists began to doubt his mental illness. “When the stakes were high for the state, suddenly these doctors switched their tune,” he says.
In their motion for a stay, the defense argues, “For the first time there was a suggestion that Ferguson was feigning some of his symptoms of mental illness – conveniently coming at a time when an insanity defense may have come into play regarding Mr. Ferguson’s case.”
The court-appointed psychiatrists changed their tune again a decade later, when the state tried to conduct a clemency hearing, once in 1986, and again in 1987. Both years, the state’s own doctors found that Ferguson was too incompetent to participate in the clemency process.
Last week in the Florida Supreme Court, Handman challenged, among other things, the state’s failure to provide Ferguson with a full and fair clemency hearing. On Monday, October 8, the court rejected the appeal, upholding a decision by Circuit Judge Nushin Sayfie. Though she acknowledged that Ferguson “undoubtedly suffers from mental illness,” Sayfie denied him a clemency hearing because he filed his claim too late.
“On some claims, the courts have been very aggressive in applying these so-called time bars,” says Handman, “but the Florida Supreme Court has never once invoked a time bar in similar clemency cases.” He called the ruling “a totally new shift in their jurisprudence.” Handman is appealing the decision to the Supreme Court, which could have broad implications for other death row inmates.
“Florida has systematically cut corners in conflict with Supreme Court precedent,” says Handman. “It’s time for either the Florida Supreme Court to step in or the US Supreme Court to correct those oversights.” With just a week left before Ferguson’s scheduled execution, his case poses a challenge to the very process that a state must follow to fairly determine whether a prisoner with mental illness will live or die.