The morning his trial on a first-degree murder charge was to start on Sept. 23, Joseph Bova stood in court before Circuit Judge Terence Perkins for almost an hour, pleading to be allowed fire his attorneys and represent himself. “If this man represents me I’m going to end up serving 50 years in jail,” he’d said of Josh Mosley, one of his two attorneys. Matt Phillips was the other. Perkins said no at every turn.
By week’s end, a jury had found Bova guilty of murdering Zuheily Rosado at a convenience store in Palm Coast in 2013, as Bova had predicted it would, though based on the cases presented it was difficult to imagine a different outcome had even Clarence Darrow represented him. Perkins sentenced Bova to life in prison without parole.
It was just as clear that Perkins’s decision not to let Bova represent himself would come back to bite him in the robes. For all the judge’s detailed defense of his decision on Sept. 23, Mosley a few days later filed a motion for a new trial. “The likelihood that a defendant would incompetently represent himself is not a valid reason to deny an unequivocal and knowing request for self-representation,” the motion argued, citing case law, including the case that gave “Faretta hearings” their name–the hearings where, as before Bova’s trial, a judge hears a defendant’s request for self-representation. But the fact that such hearings are held is in itself an indication that the right is not automatic the moment a defendant requests it.
“Once a court determines that a competent defendant of his or her own free will has knowingly and intelligently waived the right to counsel, the dictates of Faretta decision on right of self-representation are satisfied, the inquiry is over, and the defendant may proceed unrepresented,” Mosley argued.
Bova’s knowingness was never in question. Nor was his intelligence: he is not brilliant, but he’s not mentally challenged, either. Still: a Faretta hearing requires that a judge inquire not only about the defendant’s intelligence and knowingness, but his mental health, his knowledge of criminal proceedings (but not his lack of legal knowledge) and his understanding of the disadvantages and dangers of self-representation. On those scores, Bova failed. On the other hand, and as Mosley’s motion noted, there was this sharp contradiction: Perkins had judged Bova competent to proceed with trial. Yet he was judging him incompetent to represent himself, even after he was asked whether he was taking his medication. So the denial, in the motion’s conclusion, denied Bova his constitutional right.
Perkins is the sort of veteran judge who openly if not always explicitly takes pride in his close and strict reading of law. He almost bristled at the beginning of Tuesday’s hearing on Mosley’s motion when he said he was “very familiar with the Sixth Amendment” and assured counsel that he was “a strong opponent of that.” He stressed that “the fact that [Bova] would screw it up if he were to represent himself is of no bearing on the case.”
But his rationale said otherwise: it was precisely because Perkins was concerned that Bova’s approach would “screw it up” that he denied his request, at least in part: “We had a very detailed, extensive on-the-record discussion about this, that’s what we did for almost an hour that morning,” Perkins said, referring to Bova’s most adamant reason for wanting to represent himself. “His reason was, he wanted Mr. Mosley to ask a question of the defense’s expert on the insanity defense that would have been fatal to their defense.”
Bova wanted to ask the expert witness whether Bova had been found insane at the time he committed the murder. But the witness had already said in a pre-trial hearing that he could not say that, nor would do so on the stand under any circumstance, because it would be a lie. Still, Bova wanted the question asked. Mosley was not going to ask it. His plan was to get at insanity by implication–leaving the implication for the jury to make, since an expert witness could not. Bova didn’t want that approach. So he wanted to fire Mosley. Nevertheless, in this regard, Perkins was stepping in to protect Bova from making a “fatal” mistake.
“Had Mr. Bova been able to get his way and either represent himself or coerce his attorneys into asking that question, it would have eliminated that issue, that defense,” Perkins said. “And the irony is, that’s why he was upset, is he wanted to preserve that defense for the jury. He just absolutely could not understand because of his paranoia and his mental illness how that would have affected it. So for those reasons I felt in fairness, and also because I understood quite well the issue he was trying to preserve and how that was going to be preserved, that the fairest way to preserve his rights was to make him his counsel in that regard [meaning Mosley]. So that’s why I denied his request. I know he wasn’t happy about it, nor was I, but it was the best thing to do under the circumstances.”
Bova wasn’t at Tuesday’s hearing. He was shipped out of the Flagler County jail the morning of Oct. 3, and has been at the Central Florida Reception Center prison in Orlando since, awaiting a more permanent place in the state prison system. He waived his right to be at the hearing, which lasted all of eight minutes. But it was a rare window into the hazardous terrain of self-representation, which is common on misdemeanor cases but extremely rare in serious felony cases, and in Flagler, unheard of in a murder case.
“Most times they really don’t want to represent themselves, most times they’re just dissatisfied or frustrated with their trial counsel, “ Perkins said, describing the Faretta hearings as a chance to talk a defendant out of self-representation. “But you can also gain a little insight into, or provide them information into the restrictions associated with representing yourself like that you’re waving the right to claiming effective counsel, that you essentially are waiving the right to do research because there is no additional proceedings or facilities that are provided to you. They don’t enjoy any additional time in the library at the jail or anything along those lines, they’re not able to contact witnesses when they’re in custody. There are a host of limitations that they don’t recognize, things that their trial counsel will do for them that they never even think about or get to see or do in that regard.”
Part of Mosley’s motion disputed the fact that Perkins did not follow the steps of a Faretta hearing to the letter. The judge did not ask about Bova’s background, for example, or establish basic matters of literacy and education.
“I did not go through that with Mr. Bova in detail. Deliberately,” Perkins conceded. “Because I felt quite candidly like I probably have a better understanding of his background and particularly his mental status than few others with the exception of the attorneys in the courtroom with me who probably shared that same information.”
Perkins reviewed every prepared report and, in many cases, the supporting medical records for the competency review–those of the Department of Children and Families, the Department of Corrections, hospital records. There were also numerous hearings about all that. “There is no reason for me to start with the basic information. I could have recited that myself. I knew it as well if not better as he did in that regard, having literally 15 different assessments and opinions that were available to me,” going back to October 2014. Perkins enumerated all 15 assessments, and said “not only would it not enlighten the court with regard to the issue. It would be unnecessary and pointless.”
As Perkins spoke in his own defense, Mosley stood to one side, Assistant State Attorney Mark Johnson, who had prosecuted the Bova trial, stood on the other. Both kept silent throughout, not once interjecting an argument or interrupting the judge, who was not so much conducting a hearing as proffering an apologia in the strict sense of the term. It was carefully crafted to withstand scrutiny on appeal, where this case is headed regardless. Trial judges don’t like to be overturned.
“The second, probably the most important factor that I considered in all of this is,” Perkins continued, “everyone that examined Mr. Bova, every single witness, state’s witnesses, the defense witnesses, every witness said Mr. Bova suffered from and continues to suffer from severe mental illness. Severe mental illness. I saw it here in court. I saw Mr. Bova where he would just tune out sometimes. I saw other times when he would tire easily, fatigue easily. You could tell he just shut out and wouldn’t say anything. You could tell when he’d start wandering or staring during the course of the trial. He had a severe mental illness.”
He enumerated his own and prior judges’ determinations of incompetence since 2014, and continued: “While I found him competent to stand trial, I did not believe he was competent to represent himself for all the reasons that I’ve tried to articulate on the record at that time. I thought it would have been unfair to him with his mental illness to require and hold him to the same standards that you would an attorney or a member of the bar. I felt that he had excellent representation here, as did the state, and counsel proved me to be right, addressing every single issue. So I felt that the fact that he was competent to proceed to trial but otherwise still suffering from a severe mental illness was a major factor in my determination.”
Mosley never got to add to his written arguments, and had to ask the judge, “for the record,” whether his motion was denied.
“Denied,” the judge said.
It has the appearance of conflict, but it isn’t at all unusual for trial judges to rule on their own decisions in such matters, Mosley and Johnson said in a brief interview after the hearing.
“That’s usually the way,” Johnson said. “It’s his responsibility to rule on whatever motions came before him in relation to the case that he presided over at trial.”
“Sometimes,” Johnson explained, “you’ll have a case where a judge signed a search warrant at the beginning, early in a case, and he’s the presiding judge at trial. The defense files a motion to suppress, saying the warrant was defective or something. Well, the judge could still rule on whether or not the motion to suppress should be granted or not. So it’s not inappropriate. Sometimes other judges will come in and do that, but this is actually fairly typical of how it gets handled.”
“And it’s a way really for him to look back at the trial afterward,” Mosley said. “We filed these motions for a new trial, raising what we think could warrant and potentially be overturned on an appeal, and it gives him the chance to say, oh, maybe I did make that mistake, to redo it before it gets up to the appellate court.”
Bova himself had not asked for this particular motion to be filed. That’s in his defense attorneys’ purview. But he has asked for an appeal to the Fifth District Court of Appeal. That’s in progress.
“A lot of these issues will be raised in the appeal,” Mosley said, referring to Perkins’s denial of self-representation. “And now this denial is something my appellate office could say, well, he messed up again, so it’s something they could appeal as well.”
The case, in other words, is far from over.