Just as Anna Pehota has been her own worst enemy in her legal defense for the shooting to death of her husband in the Hammock last October—she confessed to the killing and sought to plead guilty before stepping back from the admission—she could now be her own best witness, if not her only hope, to avoid a second-degree murder conviction and what would amount to a life prison term for the 76-year-old woman.
Two weeks ago a hearing on her case did not go well. Circuit Judge Matthew Foxman ruled against a motion by Pehota’s attorney, Ray Warren, to suppress a four-hour interview between a detective and Pehota, in which Pehota spoke of the killing and declined the presence of a lawyer.
Foxman, who manages from the bench to combine the qualities of a judge, victim’s and defendant’s advocate all in one, said this to Pehota after his ruling, and after telling her attorney that “today’s ruling may not help” her case: “You could enter a plea either by negotiation with the state or open to the court, have a jury trial, or have what they call a bench trial, which is a trial in front of me.” Foxman said there were pros and cons to either approach, “but no one knows better what they are than Mr. Warren, and so it ultimately becomes your decision and yours alone which category we would go into. But you can’t make that decision without listening to his good advice.”
When Foxman asked her if she understood, she said, yes, then asked her, “Do you want to say anything to me?” if she wanted to say anything to me.
That’s when she said the first words, since that Sept. 23 killing, that opened an avenue legally useful to her case: “Only that I don’t remember that four-hour trek over where they were questioning me. I don’t even remember that.”
“All right?” Pehota said.
“All right. We’re going to keep the track for trial on the 18th until I nhear anything differently. We just want to make sure that we logistically can accommodate it in this room, but be in touch with your attorney, he’s going to come out and see you because we’re getting close to the time, you really need to help him participate in defending you. You understand?”
“I’ll do my best,” Pehota said.
Her statement about not remembering the four-hour interview—or interrogation, as her lawyer described it—with Detective Jorge Fuentes—did not appear rehearsed: nothing involving Pehota, starting with the shooting and going on to her many statements to the court since, appears to have had a hint of being rehearsed, pre-meditated or lawyered. If anything, Pehota has displayed an aversion to lawyers while treating courtrooms or interview rooms as confessionals. Warren had difficulties establishing a working rapport with her. She initially did not want to be defended. And if anyone may have been surprised by Pehota’s declaration of a memory lapse, it would have been Warren, especially then: if Pehota had no recollection of the four-hour interview, and if Warren had known it, that fact, or allegation, would have then been central to the suppression motion Warren had just argued before the judge.
Dementia’s many-sided sword could become the best defense for Anna Pehota, 76.
In fact, memory issues were not once mentioned in the suppression motion. The motion had focused on whether the detective properly gave Pehota her Miranda warning, giving her ample opportunity to have a lawyer present. The judge ruled that the detective did so. But Warren could have also argued that absent being in control of her faculties to the point of not even remembering the interview, Pehota could not possibly have been in her right mind to ask or not ask for a lawyer.
As it is, that point is now moot: the judge has ruled, and the admissibility of the interview will not be re-argued.
But Pehota’s declaration may have given Warren a glimmer of a defense all the same, and he revealed it in his latest motion. On Monday, Warren filed a motion to delay the trial (docket sounding, the last step in proceedings before trial, was set for Thursday, the trial itself set for April 18). The prosecution is not objecting.
In the motion, Warren raises several issues with Pehota’s memory as reflected in her four-hour interview, through letters with family and friends since her imprisonment, by way of three psychologists’ interpretations of the events surrounding the shooting, and even the medical examiner’s interpretation of the way Pehota’s husband was killed, “which accentuates just how accurate Mrs. Pehota’s account of events might actually be,” Warren argues.
The motion (“it is not filed for purposes of delay,” Warren assures the court) doesn’t dance around the strategy Warren is now embracing: Pehota may be suffering from dementia or may not have been sane at the time of the shooting. Warren, in the motion, said he “struggles with the idea that significant and possibly false memory issues exist for [Pehota], to the extent of [Warren] already having had her evaluated for possible dementia by a neuropsychologist and for possible competency or insanity at the time of the commission of the offense by a psychiatrist.”
Warren said that since Pehota’s courtroom revelation about her memory lapse, he’d consulted with three psychologists “for the possibility that [Pehota] experienced or now labors under a memory deficit that falls short of either dementia or incompetency, but one that may affect her ability to accurately recall any or all of the events that constitute whatever it was that happened on or about September 23, 2015.”
Dementia is a multi-edged sword without a handle: in its early flickers it is difficult to diagnose as individuals who suffer from it are themselves capable of denying the fact to themselves and become crafty, at least initially, at creating veils and deceptions to hide their lapses from others. Frequently, they become temperamental and unpredictable to the point of uncharacteristic rage—which they subsequently don’t remember. They make accusations and begin confusing the present with distant events, as if their memory’s calendar were suddenly a jumble of random rearrangements. Their social filter suffers, as does their judgment and calibration of the consequence of their actions—whether it’s an offhand slur or insult they would not normally have blurted out previously, or, more rarely, something worse, especially when the means are ready at hand. (The Pehota household was rich in guns.)
A defendant is innocent until proven guilty. But not really. It will be up to Warren to prove that Pehota was either incompetent or somehow suffering from the effects of dementia at the time of the shooting—and even then, it may not be enough to mitigate her guilt or punishment. She may not have remembered the four-hour interview. She may not even remember the killing of her husband. But the case does not hinge on her confessions alone, whether it’s what she told the 911 operator or the detective in the interview. The prosecution has plenty of evidence from the scene.
But Warren’s motion raises another strong possibility: if Pehota has memory and interpretation issues, she may be mis-characterizing what took place that afternoon, making it possible for Warren to raise doubt as to the motive of the killing, all the way to the possibility of self-defense (unlikely though that is: John Pehota was ailing, though he was not an invalid.) But Warren is opening the possibilities and “reasonably believes,” as he argued in his motion for delay, “he will be embarrassed in the full and complete preparation of a defense to the offense charged in the information if he is not allowed sufficient time by the Court to fully explore the possibility that certain psychological issues exist that may inhibit or block the Defendant from adequately recalling what happened” the day of the shooting.
Docket sounding is scheduled for 1:30 p.m. before Foxman Thursday in Courtroom 401. Absent another unexpected outburst from Pehota herself, and given Foxman’s disposition to give Pehota every chance at fair proceedings, it is almost certain he will grant the delay but limit it to a certain time.