Mental state key to Floyd’s defense

Kim Smith

Sunday, July 9, 2000 | 10:50 a.m.

Las Vegas ONE, Cox cable channels 1 and 39, is scheduled to carry opening arrangements and testimony in the Zane Floyd murder trial live beginning Tuesday and will provide live coverage throughout the trial.

If it were up to Zane Floyd, it would all be over by now. There would be no motions filed, no experts hired, no jury questionnaire.

If it were up to Floyd, there would be no trial.

Floyd wants to plead guilty.

He wants to plead guilty to exactly what he's been charged with, too. He doesn't want any deals. He wants to admit that he walked into an Albertson's store on June 3, 1999, and shot and killed Thomas Darnell, 40, Chuck Leos, 41, Dennis Sargent, 31 and Lucy Tarantino, 40.

The 24-year-old ex-Marine also wants to plead guilty to putting two shotgun blasts into Zack Emenegger, 21, and to raping an outcall entertainer right before his shooting rampage started.

But because of the way Nevada's laws are written, to plead guilty would be to commit suicide.

Floyd doesn't want to put his parents through that, too.

On Tuesday Clark County Deputy Public Defenders Curtis Brown and Doug Hedger will begin the uphill battle to save the life of a man they believe suffers from some form of mental impairment or mental illness.

Floyd's case illustrates the complexities in Nevada's legal system when it comes to dealing with those who fall somewhere between mentally impaired and insane, defense attorneys say.

For one thing, Nevada doesn't have an insanity defense. Many states believe that a person who doesn't know the difference between right and wrong at the time of their act is insane. Nevada has no such law.

Under Nevada law, defendants can be declared incompetent to stand trial and sent to a psychiatric institution until they are able to assist in their own defense. Or they can be mentally ill, but they can't be insane.

And being mentally ill doesn't offer much in the way of benefits. Those who are mentally ill can plead "guilty, but mentally ill" if prosecutors are willing to offer a deal, but a jury cannot render the same verdict. Even if they were allowed to, defendants could still face the death penalty because Nevada is an equal opportunity death penalty state. The mentally retarded and the mentally ill can be executed.

On the plus side, those few who are allowed to plead guilty but mentally ill are guaranteed treatment while serving their sentence -- a sentence that is just as long as those who are not mentally ill, but who committed the same crime.

When attorneys have mentally ill clients who are charged with first-degree murder, they have two choices. They can try to prove their client was incapable of premeditation and deliberation -- and hope for a second-degree murder conviction, which doesn't carry a death sentence. Or if the facts don't support that strategy, they can concede their client's guilt and focus all of their energies on the punishment phase of the trial.

But what happens when a defendant who claims to be mentally ill wants to skip the guilt and innocence phase completely and prosecutors won't give up in their quest to see the death penalty imposed?

That's the case with Zane Floyd.

If Floyd were to plead guilty, he would forfeit his right to have a jury determine his sentence. Instead, a panel of three judges -- which almost always decides for death -- would determine his fate.

So on Tuesday, Brown and Hedger will try to pick jurors who will have a hard time putting someone like Floyd to death.

"We want to focus on the fact that is was a very, very short amount of time in the life of Mr. Floyd," Hedger said. "The state wants everyone to focus on that short amount of time, but there was another 23-24 years in his life.

"He's an individual who lost touch with reality due to a series of stressful factors that combined with his inability to deal with those issues," Brown said. "Is there anybody who looks at the facts and circumstances of the case and the videotapes of him in the parking lot who doesn't say to themselves, 'That's an insane act. There's something not right with that person.' "

District Attorney Stewart Bell said the decision of whether to seek the death penalty in the Floyd case was carefully weighed. It was made based upon the facts of the case, the likelihood of jurors imposing it and whether it would stand up on appeal.

Not only were four people killed, but the number of mitigating circumstances in the case were far outweighed by aggravating circumstances, Bell said.

At the heart of the state's case are the comments Floyd made to the outcall entertainer before, during and after he raped her and two statements he gave to police immediately after the incident.

"I've always wanted to know, call me crazy, psychotic, whatever, I've just always wanted to know what it's like to shoot someone ... ever since I was a little kid, I've always, you know, ever since I saw my first, my first war movies, I've always just wanted to go to war and kill people," Floyd told police.

His defense attorneys point out that Floyd also told police he felt he was a loser. He spoke about being unable to re-enlist in the Marines, problems he had with his girlfriend and about having to move back in with his parents.

The half-dozen mental health experts that have been subpoenaed in the case will play a role, but to what extent remains to be seen, Bell said.

"While there were lots and lots of experts in the (Ted) Binion case, the jurors seemed to look at, and place more emphasis on, the physical evidence in the case and the nonexpert testimony," Bell said. "I'm not sure that isn't a reflection of the way most jurors weigh their responsibilities."

In the Binion murder case the former gaming executive's live-in lover, Sandy Murphy, and her boyfriend, Rick Tabish, were convicted in May of first-degree murder.

The Floyd case is a far cry from the Binion case and it's different in many respects from the Donte Johnson quadruple murder case, too, Brown said.

"People feel personally affected by this case," Brown said. "The community is angry in general, and they're angry at Zane Floyd. They despise Zane Floyd."

Johnson was convicted of tying up four young drug users and shooting them in the back of the head during a robbery. Tabish and Murphy were convicted of killing Binion for his fortune.

Floyd is accused of walking into a neighborhood grocery store and killing complete strangers.

"The jurors can have sympathy for the victims in the Johnson case and for Ted Binion, but inside themselves they're saying 'I'd never be in that position,' " Hedger said. "But all of us have walked into a grocery store before."

Although Special Public Defender Philip Kohn is not involved in the Floyd case and declined to comment specifically on it, he said cases involving people who are mentally ill are difficult -- particularly in those cases where there has been no previous documentation.

"There are an increasing number of people who are, for example, paranoid schizophrenic, who are undiagnosed, or worse, nothing has been done in terms of treatment," Kohn said.

Defense attorneys have an uphill battle in convincing jurors that someone is mentally ill, and they sometimes have just as much difficulty in convincing them that prison is an appropriate sentence, Kohn said.

What's sad is that many people don't understand that some mental illnesses, such as paranoid schizophrenia, are hereditary and can manifest themselves virtually overnight, Kohn said.

Cases involving mass deaths in public places are even harder to defend, Kohn said.

"The reason why the death penalty is so likely in these cases is that people say 'Oh, my God. But for the grace of God, I could've been there,' " Kohn said. "They never say, 'Oh, my God. But for the grace of God, I could've done that.' "

Jurors need to be convinced that mentally ill defendants can receive treatment and be held accountable at the same time, Kohn said. Prison authorities can ensure they don't pose a risk to anyone and monitor their medication.

"I think that if we can warehouse them, and we can treat them, it's wrong to kill them," Kohn said.

By the time they are done, Brown said he hopes the jurors will understand that Floyd suffers from an ailment over which he had no control. The defense hopes to illustrate that point by putting people like Valerie Floyd, Floyd's mother, on the stand.

Valerie Floyd said Wednesday that aside from having difficulties in school that were later attributed to attention deficit hyperactivity disorder, her son appeared to be a normal child.

Her son is an affectionate person who loves to tell jokes and who did all of the normal things kids do as they grow up, Valerie Floyd said. He played sports and video games, rode dirt bikes and exhibited normal teenage angst.

"That wasn't him (that day) and his life history will show that wasn't him," Valerie Floyd said. "We don't know what happened to him, and we don't know if we will ever know."

Valerie Floyd said that while she understands what it is like to lose a child, having lost a son to sudden infant death syndrome, she can't imagine what it is like for the families of her son's victims.

She wants them to know, however, that her thoughts are with them.

"They're devastated, and I'm devastated for them," Valerie Floyd said. "I can't imagine anything more horrible and to know my son did that is overwhelming at times. I feel a lot of shame and a lot of guilt, and I ask 'Why?' a lot. Why did this have to happen, why did so many people die?"

She knows she can never ask the public or the families to forgive her son, but she has.

"I found out what love is, and I found out what true forgiveness is," Valerie Floyd said.

There will be plenty of family and friends in the courtroom to support him, Valerie Floyd said.

"He's very loved," she said. "We will always be there for him."

Brown said jurors also will definitely learn more about Floyd's killing fantasies.

"What does that comment really mean?" Brown said. "Is it as important as everyone thinks it is, and if he truly had those thoughts, why did the barriers that had prevented him from acting on them before break down?"

Jurors can expect far more witnesses during the punishment phase of the trial, Hedger said.

"We could string people together for days to testify about the Zane Floyd they knew and about the fact that the acts and the Zane Floyd they knew are totally inconsistent with each other," Hedger said. "This is not a case of just pure evil."

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