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.”