Defense seeking thousands of dollars for medical tests, experts in Delmer Smith murder case

ejohnson@bradenton.comOctober 11, 2012 

MANATEE -- Court will reconvene at 2 p.m. Thursday for a hearing about funding for medical tests and experts before convicted killer Delmer Smith is sentenced.

On Sept. 27, Judge Peter Dubensky made no decisions after Smith's defense attorney requested brain scans and experts to analyze them, which would potentially postpone Smith's sentencing to 2013.

Dubensky said an eight-month delay between Smith's Aug. 9 conviction and the judge's decision to sentence him to life in prison without parole or the death penalty is unprecedented.

A jury unanimously recommended death after finding Smith, 41, guilty of the Aug. 3, 2009, slaying of Kathleen Briles at her Terra Ceia home.

Dubensky asked the defense to seek out alternatives to expedite the case.

However, a memorandum filed Oct. 9 by the defense states "the mental health experts with whom counsel has contacted either did not perform the services counsel is seeking in this case or had fees significantly greater" than Dr. Ruben Gur, who the defense has requested to perform quantitative evaluations of a behavioral image analysis, MRI test and PET scan.

Gur's services also require Dr. Christos Davatzikos, a MRI expert, and Dr. Andrew Newberg, a PET expert.

The defense states that the team provides unique services through specific algorithms allowing Gur to identify areas of suspected damage, structural abnormalities and evidence of regional brain activity.

Requested expert fees total $13,940. Gur's fee for additional evaluation or court involvement is $450 per hour. His travel fee is listed at $175 per hour plus reimbursement for related expenses.

The MRI will cost $1,500 and the PET scan will cost $5,000. The defense said the tests could be completed in Pinellas County.

The Justice Administrative Commission, which handles funding, will appear telephonically at Thursday's hearing. In its response to the defense's motion, the JAC objected to compensating an expert more than its established rate of $150 per hour. The JAC also objects to the appointment of an out-of-state expert when "there are competent experts in the field available within the state."

The defense has argued that these tests and experts are required for Smith's due process. Smith is entitled to an additional hearing before he is sentenced where the judge will hear evidence from the defense and state. The defense has indicated its only evidence will be medical.

The defense has also requested funding for Dr. William Lambos to perform a QEEG test on Smith, with estimated costs totaling $3,000.

Dr. Hyman Eisenstein, who performed a neuropsychological exam on Smith and testified during his trial stating he would need further medical tests, submitted an invoice of $12,600 for his services at the approved JAC rate. The defense has asked for authorization to pay that expense.

Dubensky told prosecutors to come prepared Thursday to also discuss a home invasion charge pending against Smith. He is charged with entering a couple's home in Manatee County on April 4, 2009, inflicting severe trauma to their faces and stealing personal items. If convicted, the first-degree felony is punishable by life in prison.

Dubensky said if the murder case is continued until next spring, he does not intend to delay the beginning of the additional trial.

Smith is already serving a life sentence for a Sarasota County home invasion.

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