As reported in the Bradenton Herald, defense attorney Bjorn Brunvand of this office appeared before Judge Peter Dubensky in Manatee County last week, arguing for a continuance of the “Spencer hearing” and sentencing of Delmer Smith.
Smith was found guilty of first-degree murder after an August trial. The jury recommended the death penalty. Before the judge formally sentences Smith, however, he and the State have an opportunity to present additional evidence.
The defense has requested a continuance of the hearing to allow medical experts to perform behavioral analysis and evaluations of MRI and PET scans of Mr. Smith. Brunvand argued that the defense needs to have Dr. Ruben Gur, a neuropsychologist, perform the quantitative analyses of brain scans. Gur will not be available to begin work on the case until January however. He predicts he will complete his evaluation and be ready for taking the stand in April.
The state did not oppose funding for the tests and experts but did express concerns over the delay. An attorney for the Judicial Administrative Commission did voice objections relating to the costs of the testing and experts. The JAC also argued that the defense must prove there are no competent experts in Florida before an out-of-state witness will be funded.
The JAC had no objections to funding up to $14,000 for services rendered by Dr. Hyman Eisenstein prior to and during the trial. Eisenstein recommended Smith receive further medical examination to support his findings that the defendant suffers from brain damage affecting his judgment.
Brunvand told the court that the defense team searched for other alternatives, but could not identify experts providing the same service as Gur. He also noted that Gur has testified in several other Florida cases in which he was recognized by the court as an expert.
“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.”
While seeking alternatives for Gur, Brunvand told the court he learned of QEEG testing. Brunvand has also filed a motion to appoint Dr. William Lambos, a Tampa-based expert in the electrode test, to perform a QEEG test on Smith. The test measures subtle patterns among brain waves.
“Initially my thought was maybe we could ask for the QEEG (because) it’s cheaper and could be done quicker,” Brunvand said. He then explained that, “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.