ST. AUGUSTINE–Declaring it a “complex situation,” Circuit Court Judge R. Lee Smith at the end of a three-hour hearing today said he needed time to think before issuing a decision on whether Vergilio Aguilar Mendez, the 18-year-old migrant controversially charged with manslaughter in the death of a St. Johns County deputy last May, is competent to stand trial. A bond hearing that was scheduled for today was deferred until the decision on competency is issued.
Mendez, a diminutive Mayan from Guatemala who entered the courtroom as if in a daze and looked barely more than catatonic for the entirety of the hearing, finds himself at the center of one of the higher-profile cases in the Seventh Judicial Circuit, less than two years after he was arrested at the U.S.-Mexico border and released to a family member as a 17 year old, to await a court date on his immigration status. He found work on a farm near St. Augustine.
The evening of May 20, St. Johns County Sheriff’s deputy Michael Kunovich had approached Mendez as Mendez stood on a sidewalk by the Super 8 Motel where he was staying. Kunovich found his presence suspicious and asked him why he was there. Mendez does not speak English. He speaks a rare language called M’am. But with gestures, he made it understood that he was staying at the motel, had been eating dinner and speaking with his mother in Guatemala by phone.
A stop-and-frisk encounter followed. But When Kunovich patted him down Mendez attempted to flee, according to his arrest report–he would later say that he feared deportation–was tased as he struggled with additional deputies who responded, and was eventually handcuffed. Several minutes after the arrest, Kunovich collapsed and later died at a St. Augustine hospital of an apparent cardiac episode.
Initially charged with resisting arrest, Mendez was then charged with aggravated manslaughter of a law enforcement officer, a first degree felony punishable by up to 30 years in prison. He has been held at the Volusia Branch Jail on no bond since his arrest.
There were nine law enforcement officers in the courtroom in different capacities this morning, including St. Johns County Sheriff Robert Hardwick, whose presence was a signal of the importance his department is placing on the case. Mendez, manacled hands and feet, sat back between his two attorneys, Assistant Public Defender Rosemarie Peoples and Craig Atack, remarkably immobile all three hours, at times seeming to nod off. He was entirely unreactive no matter what was being said about him as he appeared to be listening to the proceedings through an interpreter translating through a headset. He never interacted with his attorneys or so much as glanced in any direction but directly ahead of him or at his clasped hands.
The defense had filed a motion arguing that he is not competent to proceed. Mendez was evaluated by two psychologists for the defense–Dr. Yenys Castillo, a forensic and clinical psychologist, and Dr. Yolanda Leon, a neuropsychologist. He was also evaluated by Dr. Roger Davis, representing the prosecution. Unsurprisingly, the defense’s psychologists found him incompetent to proceed. The prosecution’s found him competent, leaving it to the judge to arbitrate based on what he read in the reports and the paradox he witnessed in court: a mountain of accounts and analysis he heard surrounding a dearth of factual information available about Mendez.
Assistant State Attorney Mark Johnson, who is prosecuting the case, repeatedly reminded the attorneys and the court that even if Mendez were found incompetent to proceed, his next stop would not be treatment but an Immigration and Customs Enforcement detention cell (Johnson, a veteran prosecutor, kept referring to the federal agency by its former name as the INS, the Immigration and Naturalization Service).
The various testimonies, which also included that of Mari Blanco, assistant executive director of the non-profit Guatemalan-Maya Center in Fort Worth, provided the most detailed public sketch to date of Mendez’s biography, to the extent that it could be cobbled together and deduced from him and family members witnesses spoke with. Like more than a million Guatemalans, his parents had been victims of the displacements and genocidal murders carried out by the Guatemalan army and paramilitaries in the 1980s, when over 600 villages were wiped out. He’d grown up in an unsettled community before doing what he saw others do: go north, find work, send money home.
In his interviews he mentioned at least two head injuries involving machetes (or blunt instruments) from agrarian work. He was also struck by a car. He cooperated with psychologists, tried to speak in Spanish but failed, and indicated he was “somewhat sad, worried” about his fate here. But it soon became evident to all those who interviewed him that he was not ordinarily intelligent, not ordinarily cognizant, and that cultural and language barriers created yet more hardly surmountable obstacles either to understanding him or to his bewildered understanding of what was happening to him.
He mostly answered yes no matter what the question was asked of him–even when he was asked how his parents get along. It is apparently not an uncommon trait among Mayans, one of the witnesses said.
“My opinion is that Mr Aguilar Mendez is not competent to proceed to trial, and he did not understand his Miranda rights,” Castillo said.
Castillo interviewed Mendez for two hours on Sept. 15, in the presence of Peoples and an interpreter. The psychologist gathered that he was born in a poor community where people would drink and fight. But he would provide different answers depending on the way the question was posed, and often replied simply by saying “yes” regardless.
He could not understand the concept of manslaughter. He had a lot of difficulties understanding the difference between a major and minor crime. He does not understand the penalties. “His thinking is just very concrete,” Castillo said. “He understands guilty and not guilty in terms of guilty I did it, not guilty I didn’t do it, but he didn’t understand the nuances beyond that,” whether it’s the penalties or the adversarial nature of the proceedings. He thinks he must obey the prosecution.
He had trouble disclosing facts about his life. He didn’t have the factual, rational understanding of his life–“the ability to think critically, for example the concept of a plea bargain,” or what the right to remain silent means. To him, the right to remain silent was that “he cannot be rude to the police,” Castillo said. He has difficulties tracking things as basic as his life’s chronology. He couldn’t provide numbers and dates and the order of events, and could not do so with his own legal case. Nor could he learn it: He would forget information after a brief delay, and prove incapable of the simplest analysis.
In sharp contrast with the prosecution’s psychologist, Castillo did not detect any malingering–making up or exaggerating symptoms. He denied being depressed or anxious to all psychologists. He didn’t want to seem unintelligent, and was eager to seem as if he understood things. But the defense’s psychologists suspect neurological issues, based on his difficulty memorizing or retaining facts, or learning what he’s told.
He’s stable, psychologically, but “the type of competency restoration services he requires may be better provided in a forensic hospital,” Castillo said, a response that was never made much clearer beyond “resources” that could provide him “restoration on an outpatient basis.” That would include medication and education.
“Is he restorable?” Peoples asked her. “Restorable” is the term generally applied to a person found incompetent to stand trial, but not beyond being “restored” to competency.
“That’s questionable. I wouldn’t say he’s not restorable because we haven’t tried.” But it’s questionable, because he hasn’t shown any capabilities of learning, Castillo said.
“There is something wrong with his brain function,” Yolanda Leon, the second defense’s psychologist, said. “It’s very difficult to know what he understands and what he doesn’t.” He has little ability to sequence his thoughts. He can’t do a cost-benefit analysis. “I think he has some sort of brain damage,” though that was clear speculation. She recommended an MRI of his brain and an EEG because there’s a question as to whether he may have had seizures in the past. Summing him up, Leon described Mendez as having an intellectual, neurological disability possibly resulting from past traumas. She was rather categorical, given the haze of evidence she had just presented: “He does not meet the statutory criteria to be competent, and he definitely did not understand any of the Miranda interview.”
And “so much is lost in translation,” she said–the understatement of the morning that, from the very first moment of Mendez’s encounter with the deputy, has doomed him to his current fate.
Roger Davis sounded at times equally categorical, but from the opposite direction. He found him not to be suffering from any mental illness, had no strange behavior, had no signs of psychosis, but his two and a half hour interview with Mendez raised numerous red flags for the psychologist. Davis had to repeat a number of questions. “He knew very little of what I asked him,” Davis said of Mendez. “He knew more before I provided him the information than after I questioned him again,” he said, echoing just what the defense psychologists had said: nothing sticks with Mendez, and he appears to unlearn things as fast as he’s told them.
But Davis’s interpretation of those behaviors was radically different from that of the other two psychologists: Davis “questioned whether he was giving his best effort,” and noted several instances that made him think he was not. Those statements, repeated several times in different ways, appeared to skate uncomfortably close to, if not prey on, the bigoted, inaccurate stereotype of the lazy Latin from south of the border, though the defense raised no objection: Davis was speaking as a psychologist.
Davis then spoke of the “impressive” way Mendez was able to “navigate all the obstacles” necessary to enter the United States and continue traveling the country as he did. “I believe he’s competent even though he performed poorly when I questioned him about the legal system. I believe that some of that was due to poor effort,” Davis said.
Only on cross-examination by the defense did Davis concede that he never talked to Mendez about how he made it into the United States, that he never asked him whose help he got, what means he used. In other words, Davis had made an entirely speculative statement any layman could make about migrants in general, as if Mendez was as indistinguishable as any of the millions of migrants who have the border illegally. That, too, had the unsavory ring of “they all look the same.”
But that’s what the Mendez case has entailed so far: Mendez himself has been more of a palimpsest on which, starting with Kunovich, assumptions and interpretations have been imprinted one after the other, in the continuing absence of a clear and indisputable account in Mendez’s own voice. If the judge had hooped to hear that voice more clearly today, that hope was dashed, leaving it again to the attorneys and their arguments.
“There’s consistency with his inability to understand the legal process, the ability to appreciate charges, the adversarial nature of this courtroom and what we do here,” Peoples said. “He is clearly not competent for this courtroom, for this court setting, for this particular case.” She asked the court to place Mendez in a least-restrictive detention environment for competency training, even if he has to sit at the Volusia jail as he gets it.
But Johnson, the prosecutor, argued that Mendez’s inability to give appropriate answers to the questions he was asked was not persuasively a sign of intellectual disability–only that Mendez was being lazy (Johnson used the more circuitous way of saying so, borrowing Davis’s formula of Mendez not making an effort).
“None of the experts testified that he had any sort of mental illness,” Johnson said. And there’s no practical way for Mendez to get any clinical help. “ If he’s released from this court’s custody, the federal government is going to come get him, and they’re going to take him into their custody.”
That may well be Mendez’s silver lining, though the defense didn’t argue it: as Mendez is bound to end up in federal custody, that route, by way of a determination of incompetence, would render the current charge effectively–even if not legally–moot, and relieve the court and the attorneys of one of the most distasteful cases on their dockets.
It was not a surprise that Smith, with a television news camera in back of the room, the assembled uniformed cops as if tactically dispersed on all sides, and the Advent calendar ticking close to Christmas, opted to take his time before rendering a judgment, and delay the bond hearing until then. “I will think about this a little bit more,” Smith, who a few years ago had been a family judge in Flagler County, said. “This is a complex situation, as we can all agree. And so let me have a little bit of time to think about it.”
(© FlaglerLive)
Shark says
When was the last time the cop had a physical and what was the result. So many cops that I see could be a poster child for Krispy Kreme.
FlaglerBear says
What is a “poster child for Krispy Kreme”? Oh! I get it. Fat, slow, and disheveled right? Why don’t you ask the dead officers’ family for his medical records? This Sgt. actually looked like he was in pretty good shape. There are many people in society that harbor potentially fatal heart problems that cannot be detected through conventional check ups. I found this out when a police officer I knew died instantly of that dreaded “widowmaker” at the gym. He was the picture of health. Slim, tanned, muscular, worked out daily. Not at all the stereotypical “donut eating” cop you described. But…you know, your posting wasn’t at all about that, or about the defendant, whom I really don’t think is to blame for the Sergeant’s death. I think he was, unfortunately a walking time bomb. I just think you wanted to perpetuate the stereotype in a very disturbing way to dishonor not only the officer but the defendant who is now on trial for his life. Ha, Ha, Ha! I hope you got a good laugh out of it.
Paul says
The officer dishonored himself by arresting Mendez for nothing at all.
FlaglerBear says
I’d say that cop is lucky. He’ll never again have to deal with the likes of folks like Mendez, who are pouring across the border daily by the thousands; or the ever increasing cop haters in this garbage nation of ours like you. Who knows the real back story? The one the video doesn’t tell? One is dead, the other apparently is a walking dead.
rick says
You did not answer the question ,when was his last physical and what were the results ? .Looking healthy dopes not equal healthy.
Besides that .The cop had no reason to detain him .He was eating while on the phone in public. So what . He was no braking the law there was no RAS . This case is BS
FlaglerBear says
Rick, go back and very carefully once again look at what I wrote. We don’t access to each other’s medical records. It’s protected information. You would have to obtain that from the family. I also wrote that I didn’t feel the defendant was to blame for the Sgt’s death. So what is your issue here?
James says
Those cops should go back to the academy for some training. Just standing around while one of them is wrestling with Vergilio. Maybe the stun gun caused the cops death!!!!
Nenemalo says
I was thinking along the same lines since body cam videos were edited and some not released. That’s how the blue line gang operates.
tulip says
I think they could’ve handled it differently The kid couldn’t speak English, so how did they expect him to obey their commands. And wow, all that tasering they did to him! It was hard to watch and hear. I also don’t see how they could try him for killing that other cop either.
Loocy says
Anyone with a brain knows this kid did not cause that deputy’s death. Florida is a sewer of racism and xenophobia.
Deborah Coffey says
Stop the Trumpite cops. They feel the need to kill immigrants. The cop dropped dead from a heart attack. He wasn’t the one chasing and handcuffing the immigrant. What baloney and a waste of tax payer money. Honestly, I don’t know why these immigrants think it’s better to come to America…a country so filled with hatred for them and fear of them.
Ed says
Ms Coffey,
Omg, wow ,golly gee, holy cow, wowzah, good grief, no way, holy guacamole, and finally wholly shit.
“Trumpite cops feel the need to kill immigrants”
No longer Pissed in PC cause I left says
Just ask DeSantis and who wants to have cops shoot anyone at the border carrying a backpack cause they’re supposedly transporting drugs. It’s called GOP racism! This cop was a walking widowmaker. My ex was a cop and he had 2 heart attacks and no he wasn’t chasing or fighting anyone. He never followed up when the doctor told him he needed tests every 6 months and blew off follow up appointments. We divorced and he had the final one in his living room. His hoe found him when she got home 6 hours later.
Steve says
I left FPC Too. Just alot of drama for a small Town. IT is also a terribly run County. A waste of Taxpayers money MO
Chip D says
Hate to tell you this Deborah, but the vast majority of cops are “Trumpite”. Do you really believe that most cops feel the need to kill immigrants? We must stop them. What do you suggest? I have an idea. We should defund the police. That worked out great last time.
Hmmm says
They need to let that guy go.
Atwp says
How many times did they taze the young man? Why do cops think they can treat people like animals especially people of color. The young man is blamed for the white cops death. Had the young man been white would the outcome be the same? Probably not. This whole situation is sad and very expensive. Why blame the young man for the death of the cop? The white American way I guess. The video make the cops look like untrained waste of tax payers money.
TR says
I wish there was a way to block comments from people on this site. I am sooo sick and tired of your racist bullshit remarks on every comment you make. It’s people like you that keep racism alive and striving in this country. But to answer your ignorant statement. All circumstances in any crime are based on the facts. Color has nothing to do with anything. If all the circumstances were the same with a white person (which has happened plenty of times in this country) the outcome would be the same. It involved the killing of a cop. I have a suggestion for you. If you think this Country is “The White American Way” how about packing up all your crap and move to a Country where it’s “The Black Way”? Oh that’s because then you can’t live the free lifestyle that America offers.
Oh let me point out one thing you didn’t comprehend from the article because you had your focus on racism. The young Mendez stated he was afraid of deportation. So maybe the people that are in this country illegally, should learn to speak some English and make sure they know, never to run from the law. This all would have been avoided if Mendez wouldn’t have ran away.
Some guy says
The cop had a heart attack, he didnt get shot to death. Common sense would tell you this would have happened anyways, he just happened to be working. But you know this is FloriDUH.
Disgusted says
YOUR tired of the racist comments? How about YOUR ignorance. Just what exactly is “The Black Way” of life? Immigrants should learn English? You’re a real piece of work. No wonder you love is in good ol’ Flagler County. You’re exactly the reason I moved far away from that bigoted state.
Atwp says
Tr, stop reading the comments and you will not see what I write. Who does America offer a free lifestyle to? Perhaps your comment will get blocked if I owned the site. It is o.k. for people like you to curse and call statements ignorant but I’m suppose to keep my comments to myself, not this man. I have a right to voice my opinion, you don’t have to read my comments. Color don’t have nothing to do with a situation, were you born a year ago, you are smarter than your comment, color has a lot to do with arrests and cop shooting, wake up and face reality fir what it is and not your dreamworld. Face the real world man, get out of your shell. What happened was the real world and color had a lot to do with it.
TR says
Show me one time when I cursed. I never did, because if I did the comment would not be allowed according to the TOS of the site. Maybe take some of your own advise and get out of the shell you live in. Again, color had nothing to do with this. It only does because you want to believe it. Like I said before, if you hate so much what is going on in this country they way cops handle situations, then I hope you find a country that will satisfy you. However I have a feeling you will never.
Denali says
“Color has nothing to do with anything.”
Bullshit, pure, simple unadulterated bullshit. The majority of cops, the courts and the public are most certainly not color blind.
Further, this kid had no more to do with ‘killing’ this officer than you or I did.
Mary says
That’s really an abuse of power over an immigrant. What if an American was overseas and a cop there happened to have heart attack after the guy/girl ran. We wouldn’t stand for them being charged with manslaughter. That’s just ridiculous and horrible to charge this kid.
He was afraid so he ran. Big deal.
Nenemalo says
Karma really did its thing on that bacon but Virgilio is still unjustly incarcerated.
Jeff says
The video of the whole incident is all over YouTube. All charges should be dropped it was an illegal detainment in the first place……… “Back the blue till it happens to you” – james freeman
Carol Bacha says
The eyes and ears of this defendant Aguilar Mendez, and his diminutive little over 100 pounds in weight size may denote a developmental delay as in Down Syndrome and contribute to his non-comprehension from the start of his encounter with the officer in St. Augustine through this court appearance as well as his English limitations and having the Mayan dialect.
Barry McDonald says
The testing should be in his language without translation during the interviews (testing). Probably a near impossible task. The yes answers are common when one does not understand the language. The amount of time in this culture is important when considering cultural and language barriers.
Land of no turn signals says says
Just comply,don’t be here illegally and you don’t have a terrible situation.
Some guy says
Comply to what? Dude be quiet. Cop had a heart attack, you make it seem like he was shot by gangbangers. Yall be extra quiet when cops mess up but the second you can “back the blue” its game on with the same nonsense rhetoric.
Atwp says
TR block comments that you don’t agree with. You sound like the state of Florida, decrease or get rid of African American studies, promote European studies. The country is doing the same thing. Block African American studies. This country.
Samuel L. Bronkowitz says
I’m willing to bet that if this cop had his heart attack while driving his cruiser and crashed into a family of 4 on vacation, the prosecutor would try to charge the remaining living family members for murder
JimboXYZ says
From the video, I’m trying to figure out what exactly required this to escalate ? If the officer was after a form of ID, he sure didn’t allow him to go into the motel room to produce it ? If eating & being on the phone is suspicious activity ?I guess anyone at one of the local gas stations is subject to a search ? This looks like what they put the man thru with the tasering is a case of sour grapes that the officer would later have a heart attack ? It’s unfortunate the officer died, but I fail to see why this escalated to require several officers to basically attack the individual. All of this could’ve been averted really. If the officer was after an ID, it was in the motel room. There was no effort or words exchanged to get that ID. The line of questioning on the sidewalk was just mishandled from what I saw in the video. I’m generally for law enforcement, but they would have to have something that would require them to suspect anything of a criminal act had been committed. And now they have the nerve to call this aggravated manslaughter ? That isn’t what the video shows. Aggravated manslaughter is an overreach of a fabrication from this video alone. What did they get him for ? No illegal drugs ? I thought I heard in the video he may have had a knife on him ? Was it a weapon, or what he used as eating his food with as a utensil ?
jay says
I served many years ago as a law enforcement officer. Sad turn of events however there is absolutely no way that this young man is responsible for the untimely death of the deputy. I don’t believe the deputy had the necessary probable cause to believe a crime was being committed in order to identify the subject. You can’t just roll up and demand ID. Also this guy was 5’4″ 115 lbs and I can’t believe it took several deputies and a taser deployment to subdue this guy. Officers these days escalate encounters often to result in an arrest when none is warranted.
Thurston Howell III says
This guy should of NEVER BEEN HERE to start with! Build the wall!!!!!!!!!!!!!!!!!
baffeled says
Pathetic !!! WTF are you cops doing or thinking ?? This video makes me sick. He keeps screaming sorry, no comhembrie,
( not understanding) and yet the keep beating his butt down. This is sad !! Leave this guy out and send him back, but no way is he responsible for any one’s death. Why is it he keeps saying no english ! And no one’s listening !!All these police need to go back to training !!
Pete says
One has to wonder why there isn’t a countersuit against this sheriff’s office for a clear violation of someone’s 4th amendment rights. Just standing outside somewhere isn’t probable cause. The idea that this kid is in any way responsible for the death of the officer is just absurd. The judge should be tossing this case out, telling the prosecutor to learn the law, and reprimanding this sheriff’s office for their unconstitutional and unprofessional activities.
Chloe says
Hi I’m Chloe and all I can say is this is nothing but a race thing this poor guy is being railroaded he is a victim it doesn’t matter where he came from he left his country for a better life just because he did not graduate high school doesn’t mean he is stupid he is scared abs alone he should be released its not his fault the officer had a heart attack how would you like to be in his country and be arrested for trying to get away from a racist crooked cop how would you feel being 18 on your own in a florin country trying to survive and no one is on your side and you are being told that you will be doing life foe no reason he did not kill that cop and everyone involved is racist and its really sad and heart breaking that people can be so ignorant your status doesn’t matter god doesn’t like ugly let this young man go !!!!!!!!!!!!!!!!!!!!!!!!……
Susan says
The guy did NOT kill the cop. Trump2024