The Fifth District Court of Appeal today ordered Joseph Bova re-tried for murder, 17 months after a jury found Bova guilty and a judge sentenced him to life in prison. The court ruled that Judge Terence Perkins was wrong to deny Bova his right to fire his attorneys and represent himself, no matter how much of a mess Bova would have made for himself.
“We determine the trial court abused its discretion in denying [Bova’s] request and reverse and remand for a new trial,” Judge Meredith Sasso wrote for a unanimous court. She was joined by Chief Judge Kerry Evander and Judge Mary Alice Nardella.
It is a remarkable but not surprising new twist in a ghastly case that has vexed two sheriffs, prosecutors, defense attorneys and four judges since Bova was arrested for the execution-style murder of Zuheili Roman Rosado at the Palm Coast Mobil Mart on State Road 100 in February 2013. Bova eventually confessed to the murder, saying Rosado was “evil” and he was hearing voices ordering him to execute her to save the world. But he claimed he was insane at the time.
The jury deliberated for a mere 39 minutes before finding him guilty. If the facts of the case don’t change, the outcome is not likely to change in a second trial, which will again put Rosado’s five children and Rosado’s mother, who attended the first trial, through the ordeal of a second.
Bova’s trial had been delayed because judge after judge had found him incompetent to stand trial, and he spent years in a psychiatric hospital. That changed in 2019. He went on trial in September that year.
On Sept. 23, before jury selection, Bova stood before Perkins, flanked by his two public defenders–Joshua Mosley and Matt Phillips–and strenuously, at times boldly, argued with the judge for an hour that he should be allowed to fire the attorneys so he could represent himself.
Bova didn’t much care about all witnesses but one. He wanted to be the one to cross-examine Dr. Joseph Sesta, a forensic neuropsychologist, of whom he could ask point-blank whether Sesta considered Bova insane or not. That’s the question his defense attorneys did not want to ask, because they knew Sesta’s answer: the doctor would say no, and the case, already teetering, would collapse then and there of a self-inflicted blow. But Bova wanted to ask it. He thought he could coax the sort of answer he wanted out of Sesta. Perkins again and again told him that it was a ploy fatal to his case. Bova wouldn’t budge.
‘very simply, sir,” Bova told the judge, “I’ve put this trial together so that I’m NGI,” the acronym for not guilty by reason of insanity. “And as NGI, I don’t have a doctor that says I was insane at the time of the crime.”
“That’s true,” Perkins said.
“And my theory was, is that because we couldn’t get the continuance that we were going to use Dr. Sesta. And I asked him to ask Dr. Sesta, hypothetically speaking, somebody who’s schizophrenic and who is off the medication and who is hearing voices, if they committed a crime, would they be considered insane at the time of the crime? Is that a possibility? I wanted to point that out, that could be my standpoint, my point to the jury for them to understand.”
“And if Dr. Sesta were to say ‘not necessarily,’ what does that do to your defense?” the judge asked Bova.
“That would hurt my defense,” Bova acknowledged without hesitation.
“Not only hurt it, I mean, it throws it out,” the judge said.
“But the whole point, though, is [Sesta] wouldn’t say that,” Bova claimed.
“You think you’re going to talk him into lying?” Perkins asked.
Bova said he and the judge were “miscommunicating,” and that his own attorneys were not going to ask the questions he wanted to ask. “So I’ll just represent myself, and that’s all I have to say. It’s my legal right to represent myself and I’m asking you to uphold that for me, please, so that I can represent myself.”
Perkins didn’t dispute the right. But he told Bova he couldn’t knowingly allow him to defeat himself. “The consequences of making bad decisions with regard to the testimony of witnesses and experts, in particular, are magnified numerous times,” Perkins said. “I don’t — while I think that you are competent to proceed, I do not find — and I don’t think you understand the essential elements of the defense that is going to be pursued on your behalf.”
“I do. I understand, sir. I’ve watched TV shows before,” Bova said. “I’ve watched Law and Order.”
Perkins’s patience never wavered. Nor did his resolve. But as reported at the time, “It was just as clear that Perkins’s decision not to let Bova represent himself would come back to bite him in the robes.”
The Fifth District ruled that “the likelihood that a defendant would inadequately represent himself is not a valid reason to deny an unequivocal request for self-representation.” The United States Supreme Court in 2008 had ruled that “Regardless of the defendant’s legal skills or the complexity of the case, the court shall not deny a defendant’s unequivocal request to represent himself or herself, if the court makes a determination of record that the defendant has made a knowing and intelligent waiver of the right to counsel, and does not suffer from severe mental illness to the point where the defendant is not competent to conduct trial proceedings by himself or herself.”
The circuit court had already ruled Bova competent, so it could not claim that he was unable to conduct his own trial proceedings on a medical or psychological basis. Perkins was addressing intellectual abilities, and as such, paradoxically became more of an advocate for Bova. But “the test for permitting a defendant to represent himself is not whether the defendant is competent to represent himself effectively,” Sasso ruled, “but whether he is competent to make a knowing and intelligent waiver.”
Numerous statements Bova made during his hour-long plea before Perkins suggest that his waiver was knowing, but not necessarily intelligent. That’s what Perkins was addressing when, as Sasso described it, he “explicitly stated that the reason for denying [Bova]’s request was its perception that [Bova]’s trial strategy would be fatal to his case.” Instead, Perkins’s judgment proved fatal to that first trial.
An 8-year-old case will now stretch longer, and with further appeals may not end before it hits the decade mark. Though preparation for trial will take months, the court has postponed all in-person trials until further notice because of the high incidence of coronavirus infections in Flagler. That will push many cases into the future, consequently pushing Bova’s case as well, unless the judge decides to give it priority. Bova is currently incarcerated at Dade prison in Florida City.