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Saturday, May 29, 2004

Outbursts a tactic for appeal

Killer wanted judge to order gag

By HENRY FREDERICK | News-Journal Legal Affairs Writer

DAYTONA BEACH — Condemned murderer Richard England bragged that he baited Circuit Judge S. James Foxman into gagging him to establish the basis for an appeal, a sheriff´s deputy said.

Foxman confirmed Friday the incident was reported to him the day before by sheriff´s deputy George Furst, and the judge said he asked the court reporter to record that information.

Foxman gave Assistant State Attorney Ed Davis and defense attorneys Gerard Keating and Robert Sanders the opportunity to question Furst, but both sides declined.

While some in the legal community said they saw the judge´s order to have England gagged with several layers of duct tape as Draconian, they also said they understand Foxman´s response and doubt such a tactic by the defendant would work.

“The court has a tremendous amount of authority to protect the decorum of the courtroom,” said Daytona Beach criminal defense attorney and former prosecutor David Damore. “This isn´t going to get (England) anywhere.”

The jury Thursday took an hour to decide to recommend death by lethal injection for England. The 32-year-old was convicted of capital murder by the same jury earlier in the week in the beating death of Daytona Beach Planning Board member Howard “Cooter” Wetherell three years ago.

England testified on his own behalf during the sentencing phase of his trial but, after he left the stand, he persisted in berating the prosecutor and the judge.

His mouth was taped shut during a break that interrupted closing arguments.

Sanders said the gagging incident is not the most likely legal basis to save his client´s life.

“(England) was warned three times by the judge before this day,” Sanders said. “You have to explore any and all grounds for appeal, but it's not the biggest issue. I can tell you that.”

Sanders said the potential for an appeal based on the gagging is weakened if England bragged of his intentions to the deputy.

“You can take a break, remove him from the court, but, at some point, the judge has to do something,” Sanders said. “(England) was just going off.”

Sam Masters, president of the Volusia chapter of the Florida Association of Criminal Defense Lawyers, said Foxman has more experience covering death penalty cases than any other judge in the circuit, and Foxman´s decision was not impulsive.

“(England) was warned time and time again,” Masters said. “What could (Foxman) have done – removed him from the proceedings?”

Raymond Warren, past president of the same attorneys´ association, disagreed, saying the judge should have held a hearing and considered all options because any type of shackling or gagging can give the jury a negative impression.

A defendant who makes a mockery of the courtroom can also affect a jury, said Vance Salter, a prominent Miami defense attorney who specializes in death appeals.

“This does not have a high degree of probability for appeal, especially with the judge giving him all these chances,” Salter said. “There is ample authority to allow the judge to do this. Gagging is better than removing him where he can´t participate in his own proceedings.”

Tom Mott, a Daytona Beach attorney who specializes in death penalty defense, said anything can be appealed, but he believes an appeal based on England´s duct-tape gag won´t carry much weight.

“Sometimes clients are their own worst enemies,” he said.

This was not the first time a local judge gagged a defendant.

Circuit Judge Kim Hammond had killer Larry Richardson gagged with duct tape in 1995 after he went on a verbal tirade against the judge, the attorneys, the witnesses and the victim´s family.

Senior Circuit Judge Richard O. Watson twice threatened to gag an Ormond Beach man on trial in 1999 for possessing a firearm, but chose not to carry out that threat.

In July, Foxman will sentence England, who served 11 years in prison for a previous murder, to life in prison or death by lethal injection. Florida judges are required by statute to give “great weight” to a jury's recommendation when imposing a sentence.

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