Judge James Daniel has decided Kimberly Kessler is still mentally competent to stand trial for the murder of Joleen Cummings. At a hearing held Thursday morning, Daniel refused to appoint a new attorney for her and set a date for jury selection.
Kessler was charged in September 2018 with the first-degree murder of Cummings, with whom she had worked at the now-closed Tangles Hair Salon. Cummings’ body has not been found, though prosecutors say evidence was discovered at the salon and at a Georgia landfill.
After reviewing evidence and expert testimony from forensic psychologists, Daniel ruled in March of this year that Kessler was competent to proceed with her trial. Since then, Kessler has been on a hunger strike that’s resulted in a dramatic weight loss.
Nassau County Sheriff Bill Leeper filed a civil petition earlier this month that would have allowed Kessler to be force-fed, but Judge Steven M. Fahlgren denied it.
At an Oct. 5 hearing, state prosecutor Donna Thurston emphasized that Kessler was determined to be competent in March, and said that ruling should stand. Defense attorneys Teresa Sopp and Jordan Beard said Kessler does not display one of the six indications that a defendant is competent to stand trial – the ability to participate in their own legal defense.
The Oct. 5 hearing was conducted via the internet. When Kessler came on the screen to talk to Daniel, she became disruptive, cursing the Public Defender’s Office and shouting to the point that Daniel ordered her to be taken back to her cell, where, according to jail staff, she defecated and smeared feces on the window.
At the Oct. 15 hearing, Kessler asked for a new attorney. She appeared calm and did not shout until Daniel denied her request, at which point she was taken back to her cell.
In his Oct. 12 competency ruling, Daniel said that, while competency is not a static condition, “the updated testimony and evidence presented to the court has not overcome the presumption that the defendant remains competent to stand trial at this time.”
Daniel said that while Kessler’s behavior has increased in intensity, it is no different than when she was arrested in 2018, noting that before her first competency hearing in March, she consistently refused to eat for periods of time, for various reasons.
Before the Oct. 5 hearing, Kessler had binged on sandwiches, which Daniel said she does when she is taken to the hospital to address her medical condition. He cited a case that found “neither low intelligence, mental deficiency nor bizarre, volatile and irrational behavior can be equated with mental competence to stand trial.”
“The most persuasive evidence presented to the court to date is that her refusal to eat and volatile behavior, like her refusal to cooperate with defense counsel, are volitional in nature and the result of a personality disorder rather than a diagnosed mental illness,” Daniel said. His ruling also said the court could not order Kessler to be force-fed: “(P)reventing defendant from starving herself and causing death or serious internal damage would depend on administering appropriate treatment for her personality disorder and Rule 3.212(c) does not authorize placement in a facility such as the Florida State Hospital to accomplish this purpose,” he wrote.
At the Oct. 15 hearing, a smiling Kessler alleged one of her public defender attorneys, Jordan Beard, is related to Cummings, the murder victim. She also claimed Beard had presented misinformation at an earlier hearing. Sopp said that is “factually inaccurate,” and Daniel denied the request for new counsel. Sopp pointed out that Kessler’s accusation is another example of delusion, but Daniel said the hearing was not an appropriate time for that subject, since he had already ruled on the matter.
Daniel also spoke to Sopp and Thurston about setting a trial date. He said the case has been delayed due to circumstances beyond the control of the attorneys, including the coronavirus pandemic, but that there is a backlog of trials to be scheduled and he wants to go forward. Sopp said the Public Defender’s Office could be ready in April or May of next year, and Daniel said he was “penciling in” a jury selection date for May 2021.
Kelly White, who released a statement from Cummings’ mother, Anne Johnson, after the Oct. 5 hearing, said in an email she was told Johnson would not be releasing a statement on Daniel’s latest ruling that Kessler is competent to stand trial.