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Judge grants delay in Zamites case

Psychologist's illness delays proceeding in capital murder trial

POSTED: April 2, 2008 5:01 a.m.
Scott Rogers The Times/

Cornelio Rivera Zamites enters the courtroom Friday afternoon for a pretrial hearing before Superior Court Judge Kathlene Gosselin. Zamites, accused of the rape and murder of a 4-year-old girl, is facing the death penalty.

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A Hall County judge reluctantly agreed to postpone a civil competency trial for a death penalty defendant after expressing frustration at the pace of the case.

Superior Court Judge Kathlene Gosselin told attorneys in a pretrial hearing for Cornelio Zamites that deciding on a request by the defense for a delay was "one of the hardest decisions I've made in a scheduling situation."

A weeklong court proceeding to determine whether Zamites is mentally competent to stand trial was scheduled to begin April 28.

Zamites, 27, is charged in the June 2005 kidnapping, rape and strangulation death of 4-year-old Esmeralda Nava. He was indicted in September 2005, and Hall County District Attorney Lee Darragh filed notice of intent to seek the death penalty in June 2006.

The case has had its share of pretrial obstacles, from budget shortfalls and heavy caseloads within the state-funded Georgia Office of the Capital Defender to turnover in the lawyers who have assisted lead defense counsel Josh Moore.

This week, Moore asked for a delay because of his expected appointment to serve as one of three attorneys representing accused Fulton County courthouse shooter Brian Nichols.

On Friday, Moore also cited the health of a court-appointed psychologist who evaluated Zamites and has since been diagnosed with cancer. Moore said Dr. Angel Lopez was expected to undergo treatment during the time he would be needed to testify at a late April competency trial.

Gosselin said in Friday's hearing that she was not inclined to grant Moore a delay for the Nichols case, which is tentatively slated to go to trial in July.

"I am concerned about the issue with Dr. Lopez," the judge said.

The judge noted that she originally planned to try the death penalty case in February 2008. "We're way off that schedule," she said.

Darragh opposed a postponement, noting that the age of the Zamites case was approaching that of the Nichols case, which has become a political flashpoint for criticism of the state's judicial system.
Moore countered that of more than 30 death penalty cases assigned to his office since January 2005, "very few" have gone to trial before a jury yet.

"These are complicated cases, as the court is aware, and they take a long time to try," Moore said. "We're not pushing this case back to some date beyond which is just completely unreasonable."

Moore wants a jury to decide whether his client is mentally competent in a civil proceeding. If Zamites is found competent, a separate jury would hear evidence of the crime, and if it found him guilty, consider the option of death. If Zamites is found incompetent, he would be institutionalized in a mental health facility indefinitely.

The judge had hoped to possibly have the death penalty trial in September 2008 if Zamites were to be found competent. But that date was contingent on the civil trial taking place in April.

Gosselin said she would take the competency trial off the calender and revisit the schedule in August.
"I don't like it, but I don't see that we have a lot of choices," Gosselin said. "But I don't want it to sit until next January.

"We will take this off the calender, but keep in mind it will be on my mind. Every month I will be thinking about it."



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