Judge ponders defense's expert requests; Smith's fate still unknown

ejohnson@bradenton.comOctober 12, 2012 

MANATEE -- Judge Peter Dubensky again questioned the lack of medical experts qualified to perform behavioral analysis and evaluations of MRI and PET scans for the Delmer Smith murder case during a hearing Thursday at the Manatee County Judicial Center.

Smith, 41, was found guilty in August for the Aug. 3, 2009 slaying of Kathleen Briles at her Terra Ceia home. The jury unanimously recommended the death penalty.

Smith's fate is in limbo as the court decides if the defense's request for Dr. Ruben Gur, a neuropsychologist who performs quantitative analyses of brain scans, will be granted. The defense intends to present medical findings at Smith's "Spencer" hearing, in which the defendant, his representation and the state are given a final opportunity to present evidence before the judge renders a sentence.

The judge is expected to file a written order by the end of the week.

Gur will not be available to begin work on the case until January and predicts he will complete his evaluation and be ready for taking the stand in April.

Dubensky and Assistant State Attorney Suzanne O'Donnell voiced concerns regarding that time frame.

"The delay that we're experiencing is due to the defendant who did not want this done a year ago," O'Donnell said. "This is not that the defense has been trying to do this all along. ... It's six months away and this particular doctor can't get his done in six months is unheard of."

The state did not oppose funding for the tests and experts. However, Christian Lake, assistant general counsel for the Judicial Administrative Commission, voiced objections over the phone.

Lake said the JAC is most concerned that Gur is not from Florida and is asking for compensation "exponentially higher" than the established rate of $150 per hour. Gur's service fees are $450 per hour, according to a motion filed by the defense.

Out-of-court services for Gur and his two associates is estimated at almost $14,000. The tests, which can be performed at a Pinellas County facility, will cost a combined total of $6,500.

The defense must prove there are no competent experts in Florida before an out-of-state witness will be funded, Lake said.

Bjorn Brunvand, Smith's attorney, said he searched for other alternatives, but could not identify experts providing the same service as Gur.

"He is someone who has been recognized as an expert throughout the country," Brunvand said, explaining Gur's three-part analysis. "I don't know anyone else who does it, Judge. Just because you're a neuropsychologist does not mean you're qualified for this."

Brunvand cited several Florida cases in which Gur was appointed an expert.

Without making a decision, Dubensky concluded the topic, gesturing his discontent with the situation.

"We'll all be at his mercy as to when he can make himself available to testify," Dubensky said.

While seeking alternatives for Gur, Brunvand told the court he was informed about QEEG testing. As a result, Brunvand has also filed a motion to appoint Dr. William Lambos, an expert in the electrode test from Tampa, to perform a QEEG test on Smith. The test, which measures subtle patterns among brain waves, is estimated to cost $3,000.

"Initially my thought was maybe we could ask for the QEEG (because) it's cheaper and could be done quicker," Brunvand said before voicing a "two-fold" concern. "I don't know that we're going to be able to say this can replace what Dr. Gur does. I don't know that I can say what Dr. Gur does replaces this QEEG test."

Because they are different, Brunvand is requesting a behavioral analysis, MRI, PET scan and QEEG test.

"If I don't request it and if at some point the court appoints the death sentence, someone is going to say 'Why didn't you guys do the QEEG?'" Brunvand said.

Brunvand said the QEEG is a controversial test that is not always allowed in court.

"Without further knowledge of what exactly this expert would be doing, I don't know that we could challenge it at this point," O'Donnell said, adding that she would anticipate an additional hearing as to the test's credibility.

The JAC had no objections to funding up to $14,000 for services rendered by Dr. Hyman Eisenstein's prior to and during the trial. Eisenstein submitted an invoice of $12,600. Eisenstein recommended Smith receive further medical examination to support his findings that the defendant suffers from brain damage affecting his judgment.

Elizabeth Johnson, Herald crime reporter, can be reached at 941-745-7041. Follow her on Twitter@EJohnsonBHcrime.

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