Attorneys for Cornelio Zamites, charged in the 2005 kidnapping, rape and strangulation death of 4-year-old Esmeralda Nava, want a separate jury trial to determine whether he is mentally competent to stand trial on the charges. But first they need the money to hire an expert to evaluate Zamites.
"Due to circumstances beyond Mr. Zamites’ control — the Nichols case and the whole political dogfight over that, has left us operating in a bare-bones environment," said Josh Moore, a senior staff attorney with the Office of the Georgia Capital Defender, the state-funded agency that represents indigent defendants in death penalty cases.
The state legislature has refused to provide more money to that office to fund the defense of Nichols, whose mounting legal bill was last estimated at more than $1.5 million. The result, according to Moore, is an office that is financially hamstrung in the many other death penalty cases it represents across the state."Our funding cycle is very tenuous at this point," Moore said.
Superior Court Judge Kathlene Gosselin initially wanted Zamites’ case tried in February, then changed her projection to June because of the competency
issue. On Thursday she suggested holding the competency trial in March, but Moore said his office wouldn’t be ready for that civil proceeding until June or July, citing financial restraints.
Gosselin noted the case was approaching three years since Zamites was charged in 2005. Hall County District Attorney Lee Darragh filed notice of intent to seek the death penalty in June 2006.
"I don’t want to say in December that we can’t have a competency trial until June," Gosselin said. "That’s another six months. It’s just really disturbing to me."
Jurors in the competency trial would be asked to decide whether Zamites understands the object of the legal proceedings against him, the nature of his role in those proceedings and whether he is able to assist his lawyer in his own defense. If Zamites is found incompetent, he would be institutionalized in a mental health facility until he is ruled competent to stand trial.
Lawyers for Zamites claim he is mentally retarded and incapable of assisting in his defense.
"I don’t believe he is competent and I never believed he was competent," Moore told the judge Thursday, while his client sat expressionless at the defense table, his head down as he listened to a Spanish-language translation of the proceedings through headphones.
Moore said his client’s IQ tests in the low 70s, though he conceded IQ is not a legal consideration in deciding competency.
Darragh disagreed with the defense’s portrayal of the defendant.
The prosecutor pointed to a court-ordered mental evaluation of Zamites, the results of which were given to both sides earlier this month.
Darragh said according to the report, Zamites knew the roles of the defense, prosecution, judge and jury.
"Mr. Zamites has a great deal more understanding of the criminal process than the average defendant we work with," Darragh said.
The prosecutor was arguing against a defense request to delay Thursday’s hearing until the competency issue was settled. Gosselin allowed the proceeding to go forward over defense objections, saying many of the dozens of customary pre-trial motions routinely argued in death penalty cases "have to do with legal issues that most defendants don’t understand."
Gosselin heard nearly 50 motions Thursday, ruling on many. Dozens of others are likely to be argued in future hearings.
The motions heard Thursday ranged from whether the judge should rule lethal injection was cruel and unusual punishment to a request that the prosecution provide the defense with psychiatric records of potential witnesses. Both of those motions were denied.
Gosselin said she was willing to draw up an order that would have Hall County "kick in" funds for the hiring of a defense expert to evaluate Zamites for competency, but first she needs to know how much that would cost.
"I think Hall County in particular would be interested in seeing this case tried," Gosselin said. "I don’t think we’re talking about the (funding) amounts they’re dealing with in the Fulton County case."
Moore said he could provide the judge with budget information from his office, but would prefer to do so without the prosecution or public present. The matter will be taken up in a hearing set for Feb. 1.
Until then, no trial date has been set in the case.