A convicted mass killer who is scheduled for execution next week after spending 34 years on death row lost an appeal Monday in Florida's highest court, but his lawyer plans to take the case to the U.S. Supreme Court.
The attorney, Christopher Handman, also asked the state Supreme Court to stay the scheduled Oct. 16 execution of 64-year-old John Errol Ferguson to provide more time for a separate case challenging Gov. Rick Scott's finding that his client is competent to be executed.
The justices upheld a trial judge's decision that included the denial of a separate request for a legal competency hearing. The trial judge reached that decision even though she acknowledged Ferguson "undoubtedly suffers from mental illness."
Circuit Judge Nushin Sayfie of Miami ruled Ferguson waited too long to challenge clemency proceedings and seek the related competency hearing. The high court agreed in an unsigned opinion. It also rejected other issues raised by Ferguson's lawyers after finding they, too, were untimely filed.
Ferguson was convicted of killing eight people in South Florida. Six victims died in 1977 in a drug related, execution-style mass killing in Carol City. He also was convicted of killing two Hialeah teenagers on their way to a church meeting in 1978.
"This is the first time the Florida Supreme Court has said clemency proceedings like this are time-barred," Handman said.
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Ferguson also has cases pending in two other courts.
A hearing on Scott's finding that Ferguson is competent is set for Tuesday and Wednesday in state Circuit Court in Starke, home of Florida State Prison. That's where Ferguson is being held on death row and where his execution will take place unless blocked by court action.
A person can be mentally ill and still be legally competent to participate in a trial or other proceedings or be executed. In this case a pair of mental health experts advising Scott concluded that Ferguson has an appreciation or understanding of why he is being executed. Defense experts contend that his mental illness prevents him from having that understanding.
In his motion for a stay, Handman argues there isn't enough time before the scheduled execution for the judge to hear and evaluate testimony from 16 state and defense witnesses including six experts and then for the high court to consider an appeal of the decision. The state contends Handman is faking his mental illness.
Ferguson also is challenging changes to the state's lethal injection procedures in federal court at Jacksonville.
His legal team waited until after Scott signed a death warrant on Sept. 5 to allege his due process rights had been violated by an incomplete clemency investigation that began 25 years ago. Scott denied clemency through the death warrant.
Handman contended clemency investigators were unable to finish their work because Ferguson was incompetent and they were unable to interview him.
The Supreme Court agreed with Sayfie's ruling that Ferguson had plenty of opportunity to raise that issue after his prior appeals had run their course on June 1, 2010. Under court rules he had a year from that date to file such a claim, she wrote.
The justices also supported her ruling that because the clemency challenge came too late, there was no reason to determine his competency to participate in that process.
The Supreme Court also denied Ferguson's challenges to the lethal injection changes and a lack of guidelines for governors in selecting condemned inmates for death warrants.
The justices also rejected a claim that his execution would be cruel and unusual punishment because he has spent so many years on death row. Handman said that's an important issue that deserves to be heard by the U.S. Supreme Court.
