One July evening in 1977, when I was a three yearprosecutor, I received a call from County Homicide to respond to a scene. It was a scene from Hell. Homicide duty in those days was definitelynot like being the Maytag repairman. Being on duty for a week at a time, yousaw upwards of nine or ten bodies, and that was only in your half of thecounty. But rarely was it more than a double.This was in a middle class black neighborhood, known asCarol City, in north Dade County, Florida, now in the city of Miami Gardens.There were five dead bodies, laid out like the spokes of a wheel. All had their hands bound behind their backs.They were shot in the head. After I said“Wow!” one of the detectives took me into a second bedroom and showed me numbersix. I had been a NPYD cop in the South Bronx for six years before law schooland had never seen anything like this.
Two months before, an elderly couple in Miami for afuneral, were found beaten, bound, and shot to death in their motel room onU.S. 1. The bullets were from the samegun to be used in the Carol City massacre. No one was ever charged in thosemurders.
Ten months later John Errol Ferguson, and three otherswere in custody. Seems Ferguson, sixmonths after the Carol City Six, so named by the media, found a young couple ina lovers’ lane. He raped the girl andshot both in the head. The gun usedwould be proven to have been stolen from the Carol City home.
Ferguson was convicted separately of murdering the twoteenagers, Belinda Worley, a 17 year old Hialeah High School senior, and BrianGlenfeldt, also 17. A particularly vicious rape, Belinda’s mouth and throatwere full of sand reflecting her position (and mental anguish) during thehorrific assault.
Ferguson made the mistake of telling his girlfriend andshe dropped a dime on him. Our Chief ofHomicide took the cases and within six months had flipped the driver of thelookout car and had the three men inside the house on Death Row. Things moved a lot faster in those days.
The robbers identified the house as that of a small timemarijuana dealer and decided to stage a robbery. Ferguson claimed to be a utility repairman togain entrance (indicative of someone so mentally ill he does not understandwhat is going on?). The problem wasthat the homeowner was not there, so the robbers waited. As people came in, they were bound. The robbers wore masks.
Eventually, with eight victims on the floor (six in oneroom and two in another) one of the robber’s masks fell off. Fearing an identification, a decision wasmade to kill them all. Two people turned their heads at the last moment andsurvived. They came to court andtestified how the other six died.
Buford White stood at the front door with a gun to preventanyone from trying to leave. He shot noone, but was convicted of six counts of felony murder, inter alia (and variousrobbery and kidnapping charges).Marvin Francois, and Ferguson went around shooting thevictims in the head. They were also convicted as charged and sentenced todeath. All were tried separately;additional emotional trauma for the victims’ families. After this trial,Ferguson was tried and also convicted and sentenced to death for the murders ofthe young couple. In 1985 Francois was executed and after I argued to thegovernor (and later senator, Bob Graham) and clemency board, White was alsoexecuted, in 1987.
“Had White not blocked the door with a gun, who knows whomight have tried to escape. His actions led to these six deaths, as much as ifhe pulled the trigger himself,” I offered. Why is Ferguson still in court in 2012? Good question.
In Florida, the Office of the Attorney General handlescriminal appeals. If a hearing is neededin which witnesses must testify, such as motions alleging ineffectiveassistance of counsel, or mental health issues, the AG, very fine appellateattorneys, call upon the State Attorney, the original trial prosecutors, toassist with these live witnesses. Thetrial prosecutor, Bob Kaye, having been given a well deserved appointment tothe criminal bench, could no longer handle this matter. I was assigned.
Years after Ferguson’s convictions and sentences wereupheld by the Florida Supreme Court, his attorneys filed motions arguing thathe was too mentally ill to assist them in prosecuting his continuing appeals(involving numerous technical procedural matters). Mental health experts andlay people testified in state court at hearings in 1988. The judge denied the motion on twogrounds. First the appeals were alllegal matters and the lawyers did not need his help. Whatever happened at trial was in the transcripts.Furthermore, the court found Ferguson to be malingering and embellishing hissymptoms (He did have a history of mental problems, but they were far fromthose supporting an insanity defense or what was alleged here. As a matter of fact, at the trial for themurders of the teenagers, an insanity defense was presented. The jury rejected it. A SODDI defense was used for the Carol Citycase—Some other dude did it! That toowas rejected.).
This was appealed to the Florida Supreme Court and theyupheld the rulings. However, because the right to a fair trial is enshrined inthe U.S. Constitution, what happened in the Florida courts is, what one federaljudge once said, “merely interesting.”
So in 2004, we did it all again in federal court.Ferguson’s attorneys called three mental health experts. The state countered with two forensicpsychologists and a few correction officers and other personnel from Death Row.These lay witnesses have proved very effective over the years in these types ofcases. They see the defendant forupwards of forty hours a week, sometimes for years on end. They talk about a variety of topics with theinmates, usually sports or current events. On these topics there is no problem communicating. When I ask them ifthey ever saw the defendant act strange, or have a blank stare on his face, ormake incoherent statements, they usually say, “Only when I tell him there is adoctor in the interview room.”I tried a cop killer in the early 1980′s. Early on, his lawyers asked for a competencyhearing, as they were having trouble communicating with him. A few doctors agreed.
At the hearing, I saw a young woman sitting in thecourtroom. Not knowing who she was, Icalled her to the stand, not having much to lose. Once she said she was hisgirlfriend I asked if she had visited him in the jail since his arrest. “Yes.” “What did he say?” I queried. Heranswer sealed his fate, “I think I fooled the doctors!!”
Tragically he too, has been on Death Row thirty years.
Back to John Errol. In Federal Court, the allegation wasmade that Ferguson had no concept of being killed. If he could not appreciate the punishment,why impose it (History tells us the British navy used to suspend a floggingwhen the subject passed out. They waited until he was revived so he could“appreciate it.”).
We called as a witness a psychiatric nurse who worked onDeath Row. If she saw any conduct thatmerited the psychiatrist’s attention, she would so advise. She also monitored Death Row mail forsecurity reasons. Seems Ferguson was penpaling a woman in Connecticut. He wroteher that he did not want to be buried in the Potter’s Field behind the prisonand asked her to bring his body to her church cemetery for a proper burial. Somuch for his lack of appreciation.
After the very experienced federal judge (who was theformer chief state judge of the county) heard five days of testimony, he too,ruled that Ferguson was malingering. In2009 the U.S. Court of Appeals wrote a lengthy and very detailed opinionexplaining the history of the case and pointing out how the judge below heardsubstantial evidence to support his ruling. The U.S. Supreme Court denied further review the next year.
I remember seeing an elderly woman at the hearing infederal court. She looked familiar. Turns out I met her at the mental healthhearing in state court years before. Shewas the young man’s mother. She reminded me her son Brian would be 43 years oldsoon. I apologized for not being able to explain to her why we were still incourt. The young girl’s mother died afew months ago. She had prophesized thatFerguson would outlive her.
Motions were still being filed as late as last week,alleging Ferguson’s mental health issues. The governor appointed a commission to re evaluate Ferguson. He was found competent to be executed. Then a state judge held another hearing andmore experts testified. The correctionsofficers also testified again. They saidwhen Ferguson was advised the governor had signed the death warrant, he askedthat they call his attorneys, his spiritual advisor and his family. His requestfor a last meal was also discussed. Again Ferguson was found to becompetent. The Florida Supreme Courtaffirmed.
In 2002, the Supreme Court of the United States ruled, inAtkins v. Virginia, 6-3, that executing mentally retarded individuals violatesthe constitution. Since then, it is amazing how many capital defendants allegethey are retarded.
A death warrant was signed for the execution to be carriedout in the month of October, 2012. The last week was hectic. Ferguson’s execution date was set threetimes. Each time it was stayed to allowhis attorneys more time to file motions, twice by state courts. The last stay was entered by the federaljudge who heard the five day hearing in 2004, so he could entertain morearguments. That stay was lifted by the U.S. Court of Appeals, and the U.S.Supreme Court, having rejected his appeals several times, chose not tointervene.
Then hours before the scheduled execution, the court ofappeals reversed themselves and stayed it again! The Supremes upheld the stay. Hearings will be held next month!
How do we explain this to the victims’ families, some ofwhom were at the prison waiting to see the sentence carried out? Is there no justice for them?
David WaksmanAssistant State Attorney (Ret.)Major Crimes DivisionMiami-Dade County, Florida
David M. Waksman, J.D., is a nationally known formerhomicide prosecutor with vast experience in trying violent offenders and aformer sergeant with the NYPD. He served for 35 years with of the Miami-Dade(Fla.) State Attorney’s Office, primarily in the Major Crimes Division. Heteaches Case Preparation and Courtroom Presentation, Police Involved Shootings,Injury and Death Investigation and Criminal Law at the Miami Dade CollegeSchool of Justice, In-Service Training Unit and at various police departmentsin South Florida. His specialty isFourth and Fifth Amendment issues. He has tried almost 200 jury trials,including 79 for first-degree murder. He is the author of the Search andSeizure Handbook, 3/ed. It was cited bythe United States Supreme Court in Hudson v. Michigan, 547 U.S. 586 (2006),available from Prentice Hall.
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