Judge Rules Migrant Held Responsible for Death of Deputy After Arrest Is Incompetent to Stand Trial

Circuit Judge R. Lee Smith ruled that Vergilio Aguilar Mendez, the 18-year-old migrant held responsible for the death of a St. Johns County deputy of a cardiac episode several minutes after Mendez was arrested, is incompetent to proceed to trial and is to receive “competency restoration” while held at the Volusia County Branch Jail. The order suspends further criminal proceedings, but may be abrogated over the next 60 days should the treatment restore competency to the court’s satisfaction.




The ruling, issued less than two hours before the end of business on Friday, ahead of the New Year’s Day weekend, is a reprieve of sorts for the defense, but not a victory: the controversial charges of resisting arrest with violence and aggravated manslaughter of a law enforcement officer stand. The ruling is also reflective of the judge’s perplexity, if not unease: he had called it “a complex situation” when he said he’d delay his decision at the end of a hearing before Christmas. (See: “Judge Mulls Trial Competency of Migrant Facing Manslaughter Charge in Sudden Death of Deputy After Arrest.”)

But it is unclear how, and whether, Mendez can be restored to the sort of competency required for him to stand trial, since all three psychologists who evaluated him, including one who found him competent, concluded that he suffered from no psychoses or depression or other ailments that typically cause behavioral incompetency. Rather, they drew the portrait of a young man who is simply uncomprehending, who had had some head traumas, who did not think in linear ways and who did not retain much of anything of substance when explained anything. His lack of competence is substantially more intellectual than behavioral–in other words, innate rather than either treatable or curable.

The experts testified during a three-hour hearing before Smith at the St. Johns County courthouse on Dec. 22.

Mendez “currently has educational, cultural, and linguistic challenges that affect his capacity to proceed to trial,” the court found. “The three experts disagree as to whether these challenges can be overcome with training and education.” Expert witnesses Yolanda Leon and Yenys Castillo, who testified for the defense, found him incompetent to proceed and essentially un-restorable. Roger Davis, the psychologist who testified for the prosecution, deemed Mendez intentionally lazy in his answers, painting him more as a malingerer than an incompetent, though Davis described his encounters with Mendez in much the same terms as the other two experts had.




A chasm remains between Mendez’s ethnic and cultural profile–he speaks Mam, a dialect-rich language among Mayans of Guatemala, speaks little Spanish and barely a few words of English–and the judicial maze surrounding him.

“There was also conflicting testimony regarding intellectual disability, but no formal intellectual disability testing was conducted because there are no appropriate testing instruments available in the Mam language,” the court found. The judge’s order did not seek to explore those limitations or find ways around them, other than through whatever means are available to SMA Healthcare in Volusia, with help from the Palm Beach-based Guatemalan-Maya Center.

Mari Blanco, assistant executive director of the center, testified at the Dec. 22 hearing, and spoke of the “silent genocide” of the 1980s in Guatemala, when paramilitary gangs eradicated up to 600 villages and killed upward of 200,000 people. “His parents would have absolutely been affected by the genocide as well as his grandparents. But it’s something that everybody would know about,” Blanco said “The fears are still there, the ramifications and some of his family members might have been exiled at the time or might have had to flee or might have been killed by by the military there.” The implication was that Mendez’s relationship with men in uniform has been more fearful than trusting.




His background aside, Smith in his order agreed that Mendez has no ability to discuss his case with his attorney–he never exchanged a word with either Peoples or Atack during the three-hour hearing, or seemed engaged in any part of it–he is not understanding the charges against him or the possible penalties (up to 30 years in prison), and “does not have the capacity to testify relevantly.” The judge found that Mendez “has the capacity to manifest appropriate courtroom behavior.” But the line in the order reads with a shadow of irony, in that Mendez’s behavior was indistinguishable from that of a catatonic person.

Smith’s order suggests he considered releasing Mendez to enable him to seek treatment outside the confines of a jail. “Given the immigration status and the hold from the U.S. Immigration and Customs Enforcement agency,” however–Mendez would presumably be taken into custody by federal authorities if he were released–“the least restrictive means to conduct competency-based training is to utilize the services provided by SMA at the Volusia County jail,” the order reads.

At any point in the next 60 days SMA may issue a report should Mendez’s competency appears to have been restored. Those reports will remain confidential, but they will guide the court’s next steps, none of which are attractive: keeping Mendez at the Volusia jail indefinitely is the sort of burden local jailers would rather do without, especially with competency in doubt. Releasing him would lead to a different form of incarceration and likely deportation, but at a porous border: Mendez could soon return. And trying him would drag the court through a case fraught with unsavory implications, such as likely allegations of profiling and racism, all in the context of the overheated atmosphere about undocumented immigrants.




The defense, led by Assistant Public Defenders Rosemary Peoples and Craig Atack, has yet to argue what it eventually will: that Mendez’s arrest was either unnecessary or illegal, and predicated on a false suspicion that appears to have had more to do with Mendez’s race and inability to speak English than probable causes. The case is being prosecuted by Assistant State Attorney Mark Johnson.

Mendez crossed the border with Mexico as a 17-year-old, without documents. Being a minor, he was turned over to a family member in the United States and given a court date. He became an agricultural worker in the St. Augustine area. He was eating dinner outside the Super 8 and speaking with his mother in Guatemala by phone where he was staying the evening of May 19 when St. Johns County Sheriff’s deputy Michael Kunovich asked him what he was doing and why he wasn’t eating inside. An uncomprehending Mendez, who continuously yells out “sorry” and “familia,” is soon wrestled to the ground and repeatedly tased, ostensibly for resisting arrest. Mendez, screaming in pain from the tasing and the officers’ force, does not appear to understand what he’s being told or why several deputies are are using force against him. (See the video below from two body cams.)

Several minutes after Mendez was in handcuffs, Kunovich collapsed, was taken to the hospital, and died there. He was 52. The original charge against Mendez would have been resisting arrest. He was additionally charged with aggravated manslaughter and held on no bond at the Volusia jail, for his safety, rather than at the St. Johns jail.

The Dec. 22 hearing was to include a bond hearing as well. The judge deferred that to after his decision on competency was rendered. That decision now makes the bond hearing moot, as his release would contravene the order. For now, Mendez is in what amounts to judicial limbo.