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Defense: State filed ‘disingenuous’ arguments in favor of executing murderer


Defense: State filed ‘disingenuous’ arguments in favor of executing murderer

Jun 08, 2023 | 4:48 pm ET
By Michael Moline
Defense: State filed ‘disingenuous’ arguments in favor of executing murderer
The Florida Supreme Court building. Credit: Michael Moline

Attorneys for death row inmate Duane Eugene Owen complained to the Florida Supreme Court Thursday that the state’s attorneys misrepresented the evidence in insisting that he is mentally competent to be executed next week.

In a 25-page brief filed with the high court on Thursday, one week to the day before Owen is scheduled to be executed at the Florida State Prison, his defense team pleaded with the justices to let them introduce additional evidence that Owen suffers major mental illnesses, including dementia and schizophrenia.

Owen claims he was suffering from a delusion that he is a woman trapped in a man’s body, but that by having sex with women while killing them he could absorb their female essence and that they would live on in him.

The state had filed an extensive legal brief arguing that he is malingering — feigning mental illness now only because he wants to avoid execution. Legal precedent forbids executing anyone who doesn’t understand the nature of the death penalty or why it’s to be inflicted upon them.

“The state tactlessly accuses Owen of being ‘stunningly disingenuous.’ If anyone is being disingenuous it would be the state,” the new defense brief says.

The brief attacks state arguments that Owen is sane enough to understand his situation on the evidence that he ordered a final meal, sent emails, and brought 20 books with him when transferred to the Florida State Prison to be executed. It asserts, however, that Owen isn’t allowed to send email while awaiting execution and has been seen with only one book that he’s apparently using as a base for writing.

“Further, it is entirely possible that Owen was just being polite and answering DOC [Department of Corrections] when they asked him about his last wishes. The DOC employee who has known Owen longest confirmed that inmates ‘get in trouble if they refuse to answer questions from prison staff,’” the defense wrote.

Execution set

He’s to be executed for sexual battery and murder of a mother named Georgianna Worden with five hammer blows to the head in 1984, within weeks of sexually assaulting and stabbing to death Karen Slattery, a teenaged babysitter, both in Palm Beach County. He received a separate death sentence in the Slattery case.

His would be the fourth execution that Gov. Ron DeSantis has ordered in Florida in 2023, according to the Associated Press, and the first since the governor formally opened his presidential campaign on May 24. The other executions happened in February, April, and early May. The justices haven’t indicated whether they’ll set oral arguments.

Owen has lost an array of state and federal appeals since his conviction. Now the high court has been accepting briefs in an appeal of a trial court order clearing Owen for execution. A judge in North Florida’s Bradford County, site of the Florida State Prison, ruled following a recent hearing that a commission of three psychiatrists convened by DeSantis to evaluate Owen’s mental-health claims had established that he is faking.

To the contrary, the defense team wrote in Thursday’s brief, “The fact remains that Owen is insane to be executed and if this court does not take action, Owen’s execution will be in violation of the Eighth Amendment to the United States Constitution.”

The document points to what it calls a number of errors in the state’s brief. For example, that the state got wrong the dates when neuropsychologist Hyman Eisenstein evaluated Owen and the timing of mental health tests that Eisenstein administered. Eisenstein diagnosed Owen with severe mental illness, including dementia.

The state got the results of Eisenstein’s conclusions wrong too, according to the defense: The state’s brief quotes Eisenstein as saying Owen “knocked it out of the park, quote, unquote, on a memory test.”

“On rebuttal, Dr. Eisenstein made it clear that he did not say that and explained he described Owen as having ‘strengths and weaknesses.’ A search of the transcript shows Dr. Eisenstein indeed never used the wording ‘knock it out of the park,’ which is deeply concerning that Dr. Werner’s other ‘quotes’ may also be inaccurate,” the new brief says.

Tonia Werner was one of three psychiatrists on Gov. DeSantis evaluation commission.

Hair length

Additionally, the defense brief argues, the state’s experts discounted Owen’s delusion because he presents as male in hair length and clothing.

“However, testimony from Department of Corrections (DOC) personnel rebuts that because inmates must be in compliance with their haircuts, cannot grow out their hair long, and cannot alter their clothing,” the defense brief says.

The state’s brief mentions interviews with corrections officials who’d worked with Owen for 10 years. “However, no testimony was presented by anyone from DOC who knew Owen for that length of time. In fact, out of the four DOC employees who testified, only one of the DOC employees knew Owen longer than a few weeks,” the defense attorneys wrote.

The brief spends considerable time discussing evidence about how far back Owen’s purported mental health problems run. The trial judge during his competency hearing refused a continuance to allow testimony by two experts who evaluated Owen decades ago on the ground that the question was his mental status now, with his execution date set.

The defense wanted that evidence reviewed to undermine the state’s case that Owen was malingering, to demonstrate that his problems are longstanding, their brief says.

But the brief also emphasizes that the main question is whether Owen now understands the nature of the death penalty or why he’s to be put through it.

“The relevant time period to assess Owen’s competency to be executed is, and always was, now, the time of execution,” it says, citing a legal test laid down by the U.S. Court of Appeals for the Eleventh Circuit in 2009: “Mental competency to be executed is measured at the time of execution, not years before then.”