IN THE CIRCUIT COURT OF THE

EIGHTH JUDICIAL CIRCUIT, IN AND

FOR BRADFORD COUNTY, FLORIDA

THOMAS H. PROVENZANO,

Plaintiff,

vs. CASE NO.: 99-286CFA

STATE OF FLORIDA,

Defendant.

_______________________________/

THIS MATTER came before the Court on October 11 through 13, 1999, and November 15 and

16, 1999, pursuant to the opinion and mandate of the Supreme Court of Florida in Provenzano v.

State, 24 Fla. L. Weekly S434 (Fla. Sept. 23, 1999), remanding this matter for further proceedings

regarding Plaintiff Thomas Harrison Provenzano’s competency to be executed. Provenzano was

present at both segments of the hearing with his counsel, Michael P. Reiter, Chief Assistant Capital

Collateral Regional Counsel - Middle Region. Appearing on behalf of the State were Carol Dittmar,

Kenneth Nunnelley, and Carolyn Snurkowski, Assistant Attorneys General.

On June 9, 1999, Jeb Bush, Governor of the State of Florida, signed a death warrant ordering that

the sentence of death imposed upon Provenzano for the January 10, 1984 murder of Orange County

Courthouse Bailiff William Arnold Wilkerson be carried out. See Provenzano v. State, 739 So. 2d

1150 (Fla. 1999); Provenzano v. State, 497 So. 2d 1177 (Fla. 1986), cert denied, 481 U.S. 1024, 107

S. Ct. 1912, 95 L. Ed. 2d 518 (1987). Pursuant to that death warrant, Provenzano’s execution was

scheduled for Wednesday, July 7, 1999. Provenzano v. State, 24 Fla. L. Weekly S406 (Fla. Aug. 26,

1999).

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On July 5, 1999, Provenzano submitted documents to Governor Bush claiming that he was insane

to be executed pursuant to section 922.07, Florida Statutes (1997). Id. On July 6, 1999, as required

by section 922.07, Governor Bush stayed Provenzano’s execution and appointed a commission of

three psychiatrists to examine Provenzano. Id. The commission submitted its report to Governor

Bush, and thereafter, Governor Bush "determined that Provenzano had the mental capacity to

understand the nature of the death penalty and the reasons why it was imposed upon him." Id. at 407.

Governor Bush then lifted the stay of execution, and ordered that the execution would take place July

7, 1999 as previously scheduled. Id.

Also on July 6, 1999, Provenzano filed a motion in the Circuit Court of the Eighth Judicial Circuit

in and for Bradford County pursuant to Florida Rule of Criminal Procedure 3.811 claiming that he

is not competent to be executed. The Supreme Court of Florida issued an order staying Provenzano’s

execution until July 9, 1999 and directing the Honorable Clarence T. Johnson, Jr., Senior Judge, to

review Provenzano’s motion and determine whether any relief was warranted.

Thereafter, Judge Johnson entered an order finding, based upon the documents that were

submitted to him, that reasonable grounds did not exist to believe that Provenzano lacked the mental

capacity to understand the fact of his impending execution and the reason for it, and concluding that

Provenzano "is not insane to be executed within the meaning of applicable law." Provenzano v.

State, No. 99-286 CFA (8th Cir. Ct. July 7, 1999). Provenzano appealed from said order.

On July 8, 1999, the Supreme Court of Florida issued an order which, in part: stayed

Provenzano’s execution until Tuesday, September 14, 1999, at 7:00 A.M.; remanded Provenzano’s

criminal case to the Circuit Court of the Ninth Judicial Circuit in and for Orange County for an

evidentiary hearing "on all issues in respect to the functioning of the electric chair"; and directed

Provenzano and the State to file supplemental briefs which addressed "the threshhold requirement

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of ‘reasonable grounds’ as used in Florida Rule of Criminal Procedure 3.811." Provenzano v. State,

No. 95,959 (Fla. July 8, 1999); Provenzano v. Michael W. Moore, No. 95,973 (Fla. July 8, 1999).

Said order also scheduled oral argument on all issues regarding the functioning of the electric chair

and Provenzano’s competency to be executed for Tuesday, August 24, 1999, at 9:00 A.M. Id.

On August 26, 1999, the Supreme Court of Florida issued its opinion regarding Provenzano’s

competency to be executed. See Provenzano v. State, 24 Fla. L. Weekly S406 (Fla. Aug. 26, 1999).

Therein, the Florida Supreme Court stated:

we find that the evidence presented by Provenzano, which consisted of an expert

report and other corroborating evidence of Provenzano’s bizarre behavior, when

taken alone, establishes reasonable grounds to believe that Provenzano is incompetent

to be executed. The evidence presented by the State, which also included expert

reports, created questions of fact on this issue. And these factual disputes should be

examined and resolved in the crucible of an adversarial proceeding. Therefore, under

the circumstances of this case, we remand for a hearing pursuant to rule 3.812.

Id. Further, on that same date the Supreme Court of Florida issued an order which assigned and

designated the undersigned judge "to proceed to the Eighth Judicial Circuit Court of Florida to hear,

conduct, try, and determine . . . and thereafter to dispose of all matters . . . regarding the competency

of Thomas H. Provenzano to be executed, excluding other matters subsequently raised that are

collateral to said cause." Supreme Court of Florida, Order No. 2000R-285 (Aug. 26, 1999).

On August 31 through September 2, 1999, this Court held a hearing on Provenzano’s competency

to be executed. An Order finding Provenzano competent to be executed was entered on September

3, 1999. Provenzano appealed from said Order.

On September 23, 1999, the Supreme Court of Florida reversed and remanded the matter to this

Court, stating in relevant part:

The circuit court shall afford Provenzano a reasonable opportunity to present the

testimony of Dr. Fleming. Dr. Fleming shall be accepted as an expert in clinical

psychology. Further, counsel for Provenzano shall have the opportunity to cross-examine

Dr. Parsons regarding Provenzano’s rational appreciation of the connection

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between his crime and the punishment he is to receive. Finally, the circuit court may

take any further steps which it deems appropriate consistent with rule 3.812. We stay

Provenzano’s execution, which was scheduled for September 24, 1999. After the

hearing, if the circuit court determines that Provenzano is competent to be executed,

the stay which we have granted will continue until 7 a.m. on the twenty-first day

following the date of the circuit court’s order.

Provenzano v. State, 24 Fla. L. Weekly S434, 435 (Fla. Sept. 23, 1999).

Certain issues were not disputed on appeal, and therefore, will not be re-addressed herein.

Further, the procedural details and matters concerning the denial of Provenzano’s request for a

continuance will not be addressed herein either. This Court adopts and confirms all orders and rulings

which were not the subject matter of the appeal. The Court will summarize the relevant witness

testimony from the September hearing.

During the course of the September hearing, counsel for Provenzano presented the testimony of

numerous witnesses including psychologists and psychiatrists employed with Florida State Prison and

Union Correctional Institution; correctional officers employed with Florida State Prison;

Provenzano’s sister, niece, and nephew; Robert Pollack, M.D., a psychiatrist in private practice who

performed a competency examination on Provenzano prior to Provenzano standing trial for the crime

for which he was ultimately sentenced to death; and Harold H. Smith, Jr., Ph.D., a forensic

psychologist who is in private practice. Additionally, Provenzano presented very limited testimony

from Patricia Fleming, Ed.D., a psychologist who performed examinations of Provenzano in 1989 and

on July 4, 1999. The State presented the testimony of several witnesses including correctional

officers employed with Florida State Prison; Leslie Parson, D.O., Alan Waldman, M.D., and Wade

C. Meyers, M.D., the three psychiatrists appointed by the Governor of the State of Florida to examine

Provenzano’s competency to be executed pursuant to section 922.07, Florida Statutes; and, Harry

McClaren, Ph.D., a forensic psychologist who observed Provenzano during these proceedings and

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between his crime and the punishment he is to receive. Finally, the circuit court may

take any further steps which it deems appropriate consistent with rule 3.812. We stay

Provenzano’s execution, which was scheduled for September 24, 1999. After the

hearing, if the circuit court determines that Provenzano is competent to be executed,

the stay which we have granted will continue until 7 a.m. on the twenty-first day

following the date of the circuit court’s order.

Provenzano v. State, 24 Fla. L. Weekly S434, 435 (Fla. Sept. 23, 1999).

Certain issues were not disputed on appeal, and therefore, will not be re-addressed herein.

Further, the procedural details and matters concerning the denial of Provenzano’s request for a

continuance will not be addressed herein either. This Court adopts and confirms all orders and rulings

which were not the subject matter of the appeal. The Court will summarize the relevant witness

testimony from the September hearing.

During the course of the September hearing, counsel for Provenzano presented the testimony of

numerous witnesses including psychologists and psychiatrists employed with Florida State Prison and

Union Correctional Institution; correctional officers employed with Florida State Prison;

Provenzano’s sister, niece, and nephew; Robert Pollack, M.D., a psychiatrist in private practice who

performed a competency examination on Provenzano prior to Provenzano standing trial for the crime

for which he was ultimately sentenced to death; and Harold H. Smith, Jr., Ph.D., a forensic

psychologist who is in private practice. Additionally, Provenzano presented very limited testimony

from Patricia Fleming, Ed.D., a psychologist who performed examinations of Provenzano in 1989 and

on July 4, 1999. The State presented the testimony of several witnesses including correctional

officers employed with Florida State Prison; Leslie Parson, D.O., Alan Waldman, M.D., and Wade

C. Meyers, M.D., the three psychiatrists appointed by the Governor of the State of Florida to examine

Provenzano’s competency to be executed pursuant to section 922.07, Florida Statutes; and, Harry

McClaren, Ph.D., a forensic psychologist who observed Provenzano during these proceedings and

Page 6 of 27

334-335) Additionally, in response to this same line of discussion, Provenzano stated "eye-for-an-eye,

tooth-for-a-tooth." (Tr. 254, 334-335)

The testimony of Alton Christie, Colonel at Florida State Prison, was also given great weight.

Colonel Christie testified that when Provenzano was notified about the Governor signing his death

warrant, Provenzano responded, in essence, that he was surprised because he had just finished his

appeals, and that he thought there would be thirty-five to forty others who were ahead of him. (Tr.

460)

The Court gave no great weight to the testimony of Harold H. Smith, Jr., Ph.D. He testified that

he would have conducted the examination of Provenzano differently from the manner in which the

three psychiatrists appointed by the Governor conducted it. (Tr. 486, 495-496, 499-510) His

testimony was not given great weight because it became clear during the course of the examination

of him that he did not have sufficient information regarding the actions the psychiatrists took during

the course of the examination. (Tr. 509-518) In short, he was basing his opinion that their

examination was inadequate primarily on the statements contained in the final report that they issued

to the Governor. (Tr. 499-510, 513-518) His testimony did not address the issue of whether

Provenzano met the standard, but rather the adequacy of the examination by the State’s witnesses.

Robert Pollack, M.D., a psychiatrist who examined Provenzano before trial, testified regarding

his belief that the report generated by Doctors Meyers, Parsons, and Waldman was not adequate.

(Tr. 145-146, 149-165, 170-180) The Court did not give great weight to this testimony because it

did not address the matter before the Court for consideration. Instead, this testimony was directed

at alleged problems with the examination conducted by Dr. Meyers, Dr. Parsons, and Dr. Waldman.

Dr. Pollock’s main complaint was that there were too may individuals present in the room during the

examination. (Tr. 177) He testified that it was not a generally accepted procedure to have other

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individuals present during a psychiatric examination. (Tr. 149-151, 156-158, 164-165, 170, 172-179)

Further, Dr. Pollock specifically testified that he could not testify as to whether Provenzano is

competent to be executed. (Tr. 148-149)

Harry McClaren, Ph.D., testified that he observed Provenzano not only throughout these

proceedings, but throughout the proceedings held in Orlando on July 27 through 30, 1999, regarding

the functioning of the electric chair. (Tr. 601-602) Dr. McClaren testified that throughout the

proceedings, he never observed Provenzano exhibit any bizarre behavior; Provenzano had no

stereotypical movement or signs which indicated that he was responding to internal stimuli;

Provenzano tracked the proceedings; Provenzano consulted with his counsel and read documents

during the proceedings regarding the electric chair; and, Provenzano looked horrified when the

disturbing photographs of Allen Lee Davis were displayed at the hearing on the functioning of the

electric chair. (Tr. 602-612) Dr. McClaren opined that Provenzano’s behavior is not consistent with

the suggestion that Provenzano suffers from severe mental illness. (T. 612)

In accordance with the Florida Supreme Court’s mandate, on October 11 through 13, 1999 , this

Court held further proceedings regarding Provenzano’s competency to be executed. Provenzano was

present at the proceedings with his counsel, Michael P. Reiter, Chief Assistant Capital Collateral

Regional Counsel - Middle Region.

Before commencement of the October hearing, Provenzano filed a Supplemental Witness List

which included Patricia Fleming, Ed.D., Henry Dee, M.D., Henry Lyons, M.D., and Mark Gruber,

Esq., attorney employed with the Office of the Capital Collateral Regional Counsel - Middle Region,

as witnesses to be heard on behalf of Provenzano. That in turn prompted the State to file its

Supplemental Witness List, which included Harry McClaren, Ph.D., Alan J. Waldman, M.D., and

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Leslie Parsons, D.O., as additional witnesses for the State.

All of these witnesses named directly above, except Dr. Henry Dee, testified at the October

hearing. Thus, the scope of the hearing was expanded beyond merely taking the testimony of Dr.

Fleming and permitting Provenzano to cross-examine Dr. Parsons. Portions of these witnesses’

testimony which the Court finds to be particularly relevant are set forth below.

Dr. Leslie Parsons testified in pertinent part as follows:

[MR. REITER]: During the last examination of yourself, I asked you whether you had

evaluated Mr. Provenzano to -- were you able to determine from your evaluation

whether Mr. Provenzano -- let’s see if I can form this question right -- understood the

relationship between the death penalty and the crime for which he was accused and

convicted.

[DR. PARSONS]: Correct.

[MR. REITER]: Did you made any determination as to that issue?

[DR. PARSONS]: Yes. I believe that he does understand the connection between his

crime and why the penalty is being imposed upon him.

[MR. REITER]: Okay. Now, is that a factual understanding? In other words, let me

see if I can separate it out. You believe that Mr. Provenzano factually understands

what the death penalty is and the electric chair, correct?

[DR. PARSONS]: That’s correct.

[MR. REITER]: And you believe that Mr. Provenzano understands that he was

accused and convicted of a crime, correct?

[DR. PARSONS]: That’s correct.

[MR. REITER]: Now, are you saying that it’s your opinion that he associates the two

together?

[DR. PARSONS]: Yes.

[MR. NUNNELLEY]: Dr. Parsons, just a couple of questions. Did you make any

interpretation or determination as to Mr. Provenzano’s rational understanding?

[DR. PARSONS]: Yes, I did.

[MR. NUNNELLEY]: And what is your opinion with regard to Mr. Provenzano’s

rational understanding of the death penalty?

[DR. PARSONS]: It is my opinion that he does have a rational understanding of the --

how the crime that he committed is connected to his punishment.

(Transcript of Hearing held October 11-13, 1999 (hereinafter referred to as "T" followed by the

corresponding page number), pages 15-18.)

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Patricia Fleming, Ed.D., was accepted by the Court as an expert for Provenzano in the field of

clinical and forensic psychology. Dr. Fleming testified that in her opinion, Provenzano is not

competent to be executed. Dr. Fleming testified about the different mental tests, including the

Wechsler Adult Intelligence Scale Revised test ("WEIS-R"), selected parts of the Wechsler Memory

Scale III, the Structured Interview of Reported Symptoms test ("SIRS"), and the Minnesota

Multiphasic Personality Inventory ("MMPI"), that she performed on Provenzano during her

examinations of him in 1989 and in July of 1999. Dr. Fleming also testified about all of the

documents she reviewed and individuals with whom she spoke in order to reach her opinion regarding

Provenzano’s mental status. Additionally, she testified that Provenzano understands that he has been

sentenced to death for the courthouse shootings in Orlando, and that he understands that when he

is executed, he will die. (T. 76-77, 100, 156-157) Dr. Fleming stated that the difference with

Provenzano, and with most inmates that have been sentenced to death, is that they have a different

belief about what happens to them after they die. (T. 77, 99-100, 102-104) According to Dr.

Fleming, Provenzano "believes that his afterlife is different than the traditional concept of being

dead." (T. 78, 120-126) She also testified that Provenzano thinks he is going to be executed because

there is a conspiracy to kill him because he is Jesus Christ, and that he is not being executed because

he is being punished for a crime. (T. 40-41, 47-48, 100, 156-157, 174, 178)

Henry Lyons, M.D., was accepted by the Court as an expert for Provenzano in the field of

forensic psychiatry. Dr. Lyons examined Provenzano in 1984 before Provenzano stood trial for the

murder of which he was convicted and sentenced to death, and he examined Provenzano again on

September 22, 1999. (T. 201, 202-204) Dr. Lyons testified that based upon the examination of

Provenzano that he conducted on September 22 nd , and based upon his review of the documents

provided to him by counsel for Provenzano, he believes Provenzano is not competent to be executed.

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(T. 206-208)

Dr. Lyons testified that Provenzano understands that he was convicted of first degree murder

arising out of a courthouse shooting in Orange County; that Provenzano understands that the Orange

County jury that heard his case recommended by a vote of seven to five that he be sentenced to death;

that Provenzano understands he was in fact sentenced to death in accordance with the jury’s

recommendation; and that Provenzano understands the sentence of death imposed upon him came

as a result of the murder conviction. (T. 227-228, 231) Dr. Lyons also testified that Provenzano

does not think he committed a crime, but that he was acting in self-defense against the people who

are out to get him. (T. 209-210) Dr. Lyons further testified that Provenzano knows what occurred

when he went to court and what happened, but that he disagrees with the verdict and sentence

because he doesn’t feel guilty of any crime. (T. 209-210, 231) Moreover, Dr. Lyons testified that

Provenzano thinks he’s being executed because he is Jesus Christ. (T. 210, 230-231) Dr. Lyons also

testified "I asked him point blank whether he would rather be executed or serve 30 more years in

prison and he stated he would rather serve the 30 years." (T. 214, 220)

Mark Gruber, staff counsel with the Office of the Capital Collateral Regional Counsel - Middle

Region, testified that he was present for a portion of the evaluation of Provenzano conducted by the

commission of experts appointed by Governor Bush pursuant to section 922.07, Florida Statutes, to

examine Provenzano and determine whether he is competent to be executed. (T. 240-241) Gruber

testified that during the commission’s examination of Provenzano, Dr. Waldman initiated the line of

questioning with Provenzano regarding the meaning of the phrase "eye for an eye" and that

Provenzano did not spontaneously use that phrase, but rather used it in response to questions that

were posed to him by the doctors in which the phrase was used. (T. 242-243; see also Tr. pages 254,

334-335) Gruber testified that he specifically recalled this line of questioning because he felt it was

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unfair. (T. 243-244)

With the stipulation of counsel for Provenzano, Harry McClaren, Ph.D., was accepted by the

Court as an expert for the State in the field of forensic psychology. Dr. McClaren testified that on

October 5 and 6, 1999, he spent several hours with Provenzano, performing tests on Provenzano,

including the MMPI, the WEIS-R test, and the Bender-Gestalt test, and conversing with him to form

an opinion as to whether Provenzano is competent to be executed. (T. 251-252) Dr. McClaren also

interviewed several other individuals employed by the Florida Department of Corrections. (T. 289-

292) Dr. McClaren testified that Provenano told him "he realized the State was trying to put him in

the electric chair because of being convicted of first degree murder." (T. 255; see also T. 287, 316,

371-372) Provenzano informed Dr. McClaren that the jury that heard his case found him guilty and

recommended by a vote of seven to five that he be sentenced to death. (T. 256, 278, 316, 371-372)

When asked whether he thinks execution kills a person, Provenzano told Dr. McClaren "no." (T.

257) When Dr. McClaren asked him how that could be, Provenzano stated, "Well, there is life after

death. So many religious groups try to build up these things in you." (T. 257)

Provenzano also informed Dr. McClaren of his belief that he is Jesus Christ. (T. 263-264, 362-

364) When Dr. McClaren asked Provenzano how long he has been Jesus Christ, Provenzano

responded "Well, that’s a very touchy and painful subject. I wish I was in the hospital." (T. 264-266)

Dr. McClaren testified that Provenzano repeatedly asked to be put into a mental hospital. (T. 264)

When asked whether the State of Florida is trying to execute him because he is Jesus Christ,

Provenzano stated, "Yes, you can bet your life I honestly believe that." (T. 266; see also T. 372) Dr.

McClaren perceived this as an effort by Provenzano to make him [Dr. McClaren] believe that he

[Provenzano] actually holds this belief. (T. 263-264)

At one point during the second day he spent with Provenzano, while discussing Provenzano’s

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situation, Provenzano told Dr. McCLaren that he understood they might possible electrocute him in

the future, but that he hoped they switched to lethal injection. (T. 278-279) Dr. McClaren testified

that they discussed this subject further, and Provenzano told him that if he had the choice between

electrocution and lethal injection, he would choose lethal injection. (T. 279) Provenzano also told

Dr. McClaren that he hoped he would get a new trial or a new sentencing proceeding, and that he

hoped he would receive a life sentence rather than a death sentence. (T. 281-282)

Dr. McClaren testified that he has no doubt that Provenzano understands the fact of his impending

execution and that the reason he is to be executed is because he was sentenced to death, in

accordance with the jury’s vote of seven to five in favor of death, for his conviction for killing a

bailiff. (T. 293, 316-317, 371-372)

With the stipulation of counsel for Provenzano, Alan J. Waldman, M.D., testified on behalf of the

State as an expert in the field of forensic psychiatry. Dr. Waldman testified that in addition to being

a member of the Governor’s commission appointed to examine Provenzano pursuant to section

922.07, Florida Statutes, he examined Provenzano at the request of the State on October 4 and 8,

1999. (T. 385-386, 423-424) Dr. Waldman testified about the problems he encountered interviewing

Provenzano on October 4 th , and about the successful interview he conducted of Provenzano on

October 8 th . (T. 388-407) Dr. Waldman testified that at the end of their meeting on October 8 th , he

asked Provenzano if he thought he was Jesus Christ. (T. 407) Provenzano responded "yes." (T.

407) Provenzano further stated that he didn’t feel comfortable talking about that, but he would talk

to Dr. Waldman about it if he were in a hospital. (T. 407-408)

Dr. Waldman also testified that he and Provenzano discussed the gunshot wound Provenzano

received during the courthouse shooting. (T. 409-410) Dr. Waldman asked Provenzano how he got

shot, and Provenzano responded, "Well, that’s kind of why I’m here." (T. 410) When Dr. Waldman

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asked him what he meant by that, Provenzano stated he was shot in the courthouse. (T. 410)

Additionally, Provenzano admitted shooting one person, but stated that he did not shoot the others.

(T. 410) Provenzano told Dr. Waldman details about his trial in Orlando. (T. 411-413)

Dr. Waldman testified that in his opinion, although Provenzano may suffer from mental illness,

Provenzano is competent to be executed. (T. 415, 426-427) When asked about the reasons for his

opinion that Provenzano is competent to be executed, Dr. Waldman responded:

Well, he clearly knew, understood from both a factual and a rational level, what was

going on with him in the trial, in the sentencing phase, knew and appreciated the

difference between a life sentence and a death sentence, expressed his desire to have

the sentence changed to life, which tells me that he knows the difference between a

life sentence and a death sentence. In order to have a desire, you have to know what

you’re desiring. That we just had a normal conversation, where he was able to tell me

all the things that led him to his current situation on death row, and then he would get

highly inconsistent. And the two things that stand out -- I guess the three things that

stand out, he talked a good bit about death warrants. He talked about the death

warrants being signed of the two individuals that he shares the death watch area with.

He talked about not having the death warrant signed at the time of his being brought

from UCI [Union Correctional Institution] to Florida State Prison but made it a point

to tell me that he knew it hadn’t been signed yet but that the death warrant was signed

shortly after his arrival.

(T. 415-416; see also T. 469-470) When asked why Provenzano’s comment about the death warrant

was significant, Dr. Waldman responded, "Well, it was significant because he both rationally and

factually understood it." (T. 416-417) Dr. Waldman also testified that at times, Provenzano seemed

to catch himself once he realized that he had been freely talking with Dr. Waldman, and that he would

then respond to questions with "I don’t know." (T. 417-418) Dr. Waldman felt that Provenzano was

being deceptive with his "I don’t know" responses. (T. 417-419) Dr. Waldman testified that the time

he spent with Provenzano on October 4 and 8, 1999, reinforced the opinion regarding Provenzano’s

competency that he had reached as a member of the Governor’s commission. (T. 419, 484-485)

Catherine Forbes, Provenzano’s sister, testified that she informed Provenzano that the jury at his

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trial recommended death by a vote of seven to five, and that she told Provenzano he should not have

been convicted and sentenced to death because it was "politics." (T. 494-496)

Further, the Court heard from Dr. Evans, the treating physician for Dr. Henry Dee. Dr. Dee is

a psychiatrist who examined Provenzano not long before the October hearing. Provenzano’s counsel

intended to call Dr. Dee as a witness to testify regarding his examination of Provenzano.

Provenzano’s counsel asserted, however, that Dr. Dee was unavailable to testify because he was

hospitalized and suffering from a major illness, and that Dr. Dee would not be medically able to testify

in this matter, either live or by deposition, for at least three weeks. Dr. Evans confirmed

Provenzano’s counsel’s assertions. Additionally, Dr. Evans indicated that in approximately ten days,

he would have a better idea as to whether Dr. Dee would be progressing sufficiently so that he would

be medically able to provide testimony in three weeks. (T. 351-356) At the time Dr. Dee was

retained by counsel for Provenzano, Dr. Dee suffered from a minor medical problem, but the Court

is satisfied that neither Dr. Dee nor Provenzano’s counsel were aware of the serious medical problem

that would develop.

Since Provenzano’s counsel asserted that Dr. Dee is a vital witness for Provenzano’s case, and

in order to effectuate a just resolution of this matter, this Court continued these proceedings for one

month, until November 15, 1999, to either allow enough time for Dr. Dee to be well enough to

provide testimony in this matter, or to afford Provenzano the opportunity to obtain another expert

witness in the event that Dr. Dee is not able to provide testimony. Provenzano’s counsel agreed to

keep abreast of Dr. Dee’s recovery, to notify the State and the Court of Dr. Dee’s status, and to be

prepared to proceed on November 15, 1999.

After the Court determined that these proceedings should be continued and just before the

conclusion of the October hearing, Provenzano orally requested that the Court issue a transport order

1 Notes of the telephonic status hearing were taken by Orange County Official Court Reporter Susan

McGee.

2 Mr. Moser asserted that Michael Reiter, the attorney who has previously appeared on behalf of

Provenzano in these proceedings, was unavailable to attend the telephonic hearing because he was meeting with

Dr. Dee.

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directing the Florida Department of Corrections to transport him to a facility so that he could undergo

a Positron Emission Tomography scan ("PET" scan). (T. 545-572) Provenzano based his request

upon the report of Dr. Dee dated September 20, 1999, in which Dr. Dee indicated that Provenzano

may suffer from organic brain dysfunction, and upon the testimony of Drs. McClaren, Waldman, and

Fleming. (T. 545-572)

After considering the State’s concerns and objections to Provenzano’s request, and despite the

fact that Provenzano’s counsel could have previously explored the possibility that Provenzano suffers

from brain damage, the Court granted Provenzano’s request for a transport order, but admonished

Provenzano’s counsel that this matter would not be continued beyond November 15, 1999, unless

the interests of justice so require. (T. 567-571)

On November 13, 1999, the Court held a telephonic status hearing.1 Provenzano was represented

at the telephonic status hearing by John Moser, Capital Collateral Regional Counsel - Middle Region.2

The State was represented at the hearing by Carol Dittmar, Kenneth Nunnelley, and Carolyn

Snurkowski, Assistant Attorneys General. During the hearing, Mr. Moser stated that evidence

regarding the results of the PET scan performed on Provenzano would not be presented at the

continuation of the evidentiary hearing. At the request of the State, however, Provenzano’s counsel

was ordered to provide the State with a copy of the informed consent form that Provenzano signed

before the PET scan was performed on him.

On November 15 and 16, 1999, these proceedings resumed. At that time, Provenzano presented

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the testimony of Henry Dee, Ph.D., Robert Berland, Ph.D., and Shannon Loveday. The State

presented the testimony of Harry McClaren, Ph.D., and Frederic Mitchell Lyle.

Dr. Dee was accepted by the Court as an expert on behalf of Provenzano in the field of forensic

psychology. (Transcript of Hearing held November 15 and 16, 1999 (hereinafter "TT" followed by

the corresponding page numbers), page 30). He testified about the examination of Provenzano that

he conducted on September 20, 1999. Dr. Dee opined that Provenzano is not competent to be

executed. Dr. Dee testified regarding the psychological testing that he performed on Provenzano,

and about the materials, which were submitted to him by Provenzano’s counsel, that he reviewed

before reaching his conclusion regarding Provenzano’s competency to be executed. Dr. Dee testified

that at the beginning of his interview of Provenzano, Provenzano’s behavior was similar to the

behavior Provenzano engaged in during Dr. Waldman’s interview of him, in that Provenzano behaved

peculiarly and seemed to be posturing. (TT. 37, 42-43) Dr. Dee testified that he ignored

Provenzano’s behavior, and it subsequently went away. (TT. 37, 42-43) Dr. Dee also testified that

there were times during his examination of Provenzano when he felt that Provenzano was not being

entirely forthcoming, and that he thinks Provenzano may have malingered at times not only with him,

but also with the other doctors who examined him. (TT. 42-45)

Dr. Dee testified that he and Provenzano discussed the death penalty. He stated that Provenzano

has a detailed grasp and knowledge of his trial, conviction, and sentencing, but that Provenzano

claims he is innocent and that he was convicted and sentenced as a result of a conspiracy. (TT. 48-

50, 53-54, 72) Dr. Dee testified that Provenzano understands he is going to be executed, but that

Provenzano was not overly concerned about this because he does not think the State is actually going

to execute him. (TT. 53-54)

Dr. Dee testified that near the end of his examination of Provenzano, he and Provenzano spoke

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about Provenzano’s belief that he is Jesus Christ. (TT. 47-48) Dr. Dee testified that Provenzano has

held this belief that he is Jesus Christ since the 1970s. (TT. 57) Dr. Dee stated that Provenzano told

him it was torturous to be Jesus Christ, and that individuals who do not believe in Jesus Christ were

torturing him. (TT. 47-50) Dr. Dee further stated that Provenzano has a delusional belief that he is

going to be executed because he is Jesus Christ. (TT. 47-50) As part of his delusional belief,

Provenzano believes that his trial, conviction, sentence of death, and impending execution were

simply a ruse, and that he really was tried and sentenced to death because he is Jesus Christ. (TT.

63-66)

When asked why he opines that Provenzano does not meet the standard of competency for

execution, Dr. Dee stated his opinion is based on Provenzano’s long-standing delusion that he is Jesus

Christ, and Provenzano’s belief that his conviction and pending execution are because he is Jesus

Christ. (TT. 62-66, 76, 95) Dr. Dee testified that although Provenzano has a factual understanding

of his impending execution, his delusion of being Jesus Christ prevents him from having a rational

understanding as to why he will be executed. (TT. 62-66, 104) Dr. Dee testified that it is possible

for Provenzano to have the understanding that he is being executed because he is Jesus Christ and

still have an understanding that he is being executed because of his conviction for murder. (TT. 101-

102)

Robert Berland, Ph.D., testified on behalf of Provenzano regarding the MMPI. He was accepted

by the Court as an expert in the area of clinical psychology and as an expert in MMPI analysis. (TT.

131) Dr. Berland testified about the results of the MMPIs performed on Provenzano by Dr. Fleming,

Dr. McClaren, and himself. (TT. 131-133) The crux of Dr. Berland’s testimony is that there is a

dispute among psychologists as to whether results of MMPI examinations that are scored by

computers, and which produce results that state the test was "invalid" may be interpreted rather than

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being automatically dismissed. (TT. 148-159) This testimony was presented because the results of

the MMPI examinations performed on Provenzano by Dr. Fleming and Dr. McClaren, both of which

were scored by computer, were invalid. (TT. 106-119)

Additionally, on cross examination and over the objection of Provenzano’s counsel, Dr. Berland

testified that he examined Provenzano in June of 1999 at the request of Provenzano’s counsel. (TT.

189-192) Dr. Berland testified that when he conducted his examination of Provenzano, he literally

had copies of section 922.07, Florida Statutes, and Florida Rule of Criminal Procedure 3.812 sitting

on the table before him. (TT. 220-221) He stated that based upon additional information he has

received and heard since the time he conducted the examination, he might have doubts about whether

Provenzano is competent to be executed, but that at the time he prepared his report dated July 9,

1999 on Provenzano’s competency to be executed, he opined that Provenzano was competent to be

executed. (TT. 198-200, 202-207, 212-218)

Dr. McClaren testified once again on behalf of the State as an expert in the area of forensic

psychology. (TT. 236) At this proceeding, Dr. McClaren testified in depth regarding the MMPI.

Further, in response to a question posed by the Court, and over the objection of Provenzano’s

counsel, Dr. McClaren testified he has no doubt that although Provenzano has a delusional belief that

he is Jesus Christ, Provenzano has both a factual as well as a rational understanding of the fact that

he committed a crime for which he is facing execution. (TT. 251-252, 254-257, 259-260) Dr.

McClaren testified that although Provenzano has three reasons why he should not be executed, i.e.,

because he is innocent, because he is Jesus Christ, and because he is a victim of a conspiracy, these

alternative reasons do not affect Provenzano’s rational appreciation of the sentence of death that has

been imposed upon him. (TT. 261-262)

Frederic Mitchell Lyle, nuclear medicine technologist with Memorial PET Center in Jacksonville,

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testified that he performed a PET scan on Provenzano. (TT. 12-13) Mr. Lyle testified that when he

performed the PET scan on Provenzano, Provenzano did not have any difficulty interacting with him

or following directions from him. (TT. 17, 23) He testified that at no time during the scan or the

time leading up to it did he have reason to question Provenzano’s competency to sign the informed

consent form which Provenzano was required to sign before the test could be performed. (TT. 17-

19)

Shannon Loveday, an investigator with the Office of the Capital Collateral Regional Counsel -Middle

Region, testified that she took the informed consent form for the PET scan to Provenzano

to obtain his signature thereon. (TT. 228-230) She testified that Provenzano tried to read and

understand the form, but that he told her he was unable to understand it and concentrate about it.

(TT. 228-230) Ms. Loveday testified that she had to explain the form to Provenzano. (TT. 228-230)

The Court has reviewed the evidence submitted during the September, October, and November

hearings, and has reviewed the transcripts of these proceedings. Based upon the totality of the

evidence presented to this Court at all three hearings, this Court is confident that no stone has been

unturned in this matter and that Provenzano has had an extensive adversarial hearing regarding his

competency to be executed. In fact, at the conclusion of the November hearing, Provenzano’s

counsel stated on the record in open court that he had presented everything he had to present to the

Court on behalf of Provenzano. (TT. 265-266)

The Court, sitting as the finder of fact, has determined the appropriate weight to be given to each

of the witness’ testimony.

The Court has given great weight to the testimony of Dr. McClaren, and finds him to be the most

persuasive of all of the State’s witnesses. Dr. McClaren was candid about his concerns about

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Provenzano’s mental health status, but at the same time was specific in his conclusion that

Provenzano is competent to be executed.

The Court has not given great weight to the testimony of Dr. Fleming. One of several reasons

that the Court did not find Dr. Fleming particularly persuasive is the fact that when she was asked

about statements that Provenzano made to her, Dr. Fleming testified regarding her interpretation of

Provenzano’s statements rather than simply testifying to the actual statements made by Provenzano

during her examinations of him. (See, e.g., T. 77-79)

The Court has given great weight to the testimony of Dr. Dee. He was frank about the problems

he encountered while examining Provenzano, including his belief that there were times when

Provenzano was not being completely candid with him. Further, Dr. Dee was candid about his belief

that Provenzano may have malingered not only at times with him, but also at times with other doctors

who examined him. Dr. Dee felt Provenzano’s behavior was rational behavior under the

circumstances. Dr. Dee was forthcoming about Provenzano’s knowledge of the facts surrounding

his trial, conviction, and sentence. Dr. Dee is of the opinion that except for the Christ delusion, the

other mental health problems, which include bizarre behavior such as sleeping on the floor, placing

rags over his face, and the strip search phobia, do not impair Provenzano’s ability to understand the

process and therefore are not relevant. As the Court understood this testimony, Dr. Dee believes that

but for the Christ delusion, Provenzano would be competent for execution under the minimal standard

that is in place. Furthermore, and most importantly, Dr. Dee’s testimony about Provenzano’s dual

belief system helped this Court narrow the issue to be decided.

In addition to reviewing the testimony and evidence presented at the hearings, and in addition to

determining the weight to be given to each witness’ testimony, the Court has had the opportunity to

observe Provenzano throughout the course of these proceedings. Throughout all the days that these

3 Florida Rule of Criminal Procedure 3.812 provides in relevant part:

(b) Issue at Hearing. At the hearing the issue shall be whether the prisoner presently meets the

criteria for insanity at time of execution, that is whether the prisoner lacks the mental capacity to

understand the fact of the pending execution and the reason for it.

(e) Order. If, at the conclusion of the hearing, the court shall find, by clear and convincing

evidence, that the prisoner is insane to be executed, the court shall enter its order continuing the

stay of the death warrant; otherwise, the court shall deny the motion and enter its order

dissolving the stay of execution.

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proceedings have taken place, Provenzano has consistently appeared neat and well-groomed. He has

behaved appropriately, stood when he was required to stand, and he has not ever appeared to have

had difficulty sitting still for extended periods of time in court. Further, the Florida State Prison

guards escorting him throughout these proceedings were not ever required to take any action that was

observable to the Court in order to get Provenzano to behave appropriately.

The record before this Court contains evidence that Provenzano has engaged in unusual behavior.

Additionally, the record contains evidence that Provenzano has held the belief that he is Jesus Christ,

at least at times, for over twenty years, including times when he had no apparent secondary gain.

Provenzano’s belief, if it is one that he truly holds, obviously renders him delusional, and quite

possibly, insane for execution. But, the record before this Court also contains ample evidence that

Provenzano is sane for execution. The question for this Court to decide is whether Provenzano has

met the burden of proof imposed upon him by Florida Rule of Criminal Procedure 3.812 to prove by

clear and convincing evidence that he is insane to be executed.3

As the October and November hearings on this matter proceeded, the issue in this case narrowed.

Originally, the issue was very broad and seemed to be whether Provenano suffers from mental health

problems in general, and whether those problems indicate he is unable to understand the fact of his

impending execution and the reason for it. Thus, at the September hearing, the evidence presented

to the Court covered a wide range of Provenzano’s unusual behavior and extraordinary beliefs. Now,

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it is clear that Provenzano does indeed, at least at times, engage in bizarre behavior, and that he does

suffer from mental health problems of some degree. Additionally, it is clear that Provenzano has a

factual understanding that he was convicted by a jury of murder for the killing that occurred during

the courthouse shootings in Orlando, and that he has a factual understanding that in accordance with

the jury’s recommendation, he was sentenced to death. Further, it is clear that Provenzano knows

that his execution is pending and that when it is carried out, it will cause him to die.

The pivotal issue before the Court, however, stems from Provenzano’s delusional belief that he

is Jesus Christ, and his belief that he will not be executed because he murdered Orange County

Courthouse Bailiff Arnie Wilkerson, but that he will be executed because he is Jesus Christ.

Is Provenzano competent to be executed if, on the one hand, he can recite with specificity the

details of his trial and sentencing proceedings, understand and rationally argue these details, factually

and rationally understand that he is going to be executed for killing another human being, and

understand that his execution will result in his death, and on the other hand have a delusional belief

that the real reason all this is happening is because he is Jesus Christ?

What are the factual findings on this issue and how do they relate to the legal standard? There

is clear and convincing evidence that Provenzano can rationally and factually discuss all aspects of

the "process" as required by the current standard for competency for execution set forth in Florida

Rules of Criminal Procedure 3.811 and 3.812. There is clear and convincing evidence that

Provenzano has a delusional belief that he is Jesus Christ which predates the murder by several years.

The question of whether at present this delusion extends to the point that Provenzano has a

delusional belief that the real reason he is being executed is because he is Jesus is a much closer

question. There is clear and convincing evidence in the record that although Provenzano has real and

Page 23 of 27

present mental problems, he exaggerates them, either deliberately or because it is a characteristic of

his mental health problems. The MMPI tests are of less value than they might otherwise be.

Provenzano has high "fake" scores on the tests, but a legitimate dispute on the interpretation of the

"fake" scale lessens the value of this evidence. We are ultimately left predominantly with the

subjective findings of the experts. Many of the experts are highly qualified and are of differing

opinions. After struggling with the issue, the Court finds by clear and convincing evidence that

Provenzano has a delusional belief that the real reason he is being executed is because he is Jesus

Christ.

The Court is presented with a set of parallel beliefs that are in conflict. What does the standard

for competency for execution, and specifically rules 3.811 and 3.812, require in this situation? If they

require only a rational understanding of their elements, then Provenzano clearly meets that standard.

By the end of the hearing, Provenzano’s counsel was not seriously contesting Provenzano’s ability

to recite the various facts surrounding the killing, his trial, his sentencing proceedings and the death

sentence imposed upon him, and his pending execution. Provenzano’s counsel contends that

Provenzano’s delusional belief, in spite of his ability to recite the facts, prevents Provenzano from

having a truly rational understanding of the facts of the process. Provenzano’s counsel contends, in

other words, that rational acceptance of the reason for death and the process leading to it is inherent

to a rational understanding of the facts. If this is found to be the law, then the Court must find

Provenzano insane for execution.

In order to be competent to be executed, a prisoner must have "the mental capacity to understand

the fact of [his or her] pending execution and the reason for it." Fla. R. Crim. P. 3.812. See also

Fla. R. Crim. P. 3.811. The test for competency to be executed under rules 3.811 and 3.812

"contains a rationality element, albeit a limited one." Provenzano, 24 Fla. L. Weekly S434 (agreeing

4 The average person standard is troublesome to the Court.

5 Witness the literature on death and dying. It is only human to deny that which we cannot accept.

Page 24 of 27

with Judge King’s opinion in Martin v. Dugger, 686 F. Supp. 1523 (S.D. Fla. 1988)). The rationality

to be demonstrated "is that of an objective rationality what would be regarded as rational to the

average person." Martin, 686 F. Supp. at 1572 (quoting United States v. Blohm, 579 F. Supp. 495,

499 (S.D. N.Y. 1983)).4

What does the standard for competency to be executed and specifically rules 3.811 and 3.812

mean? Is a rational acceptance of the reasons for execution necessary? No. Many defendants,

without mental health problems, maintain their innocence though, under the facts, such a position is

irrational. This can be said to be a fairly normal human reaction.5 The standard does not require this.

Going one step further, we have a situation in which Provenzano’s rejection is based on a

delusional belief. The Court finds that the acceptance of the reasons for sentencing, whether rational,

irrational, or delusional, is not part of the current standard for competency to be executed. In other

words, under the current standard, acceptance of the reasons is a separate issue from a rational

understanding of the process. The present standard is a minimal standard. If the Court has wrongly

interpreted the present legal standard, the ultimate finding of this Order will be in error.

This Order should not be misinterpreted as a finding that Thomas Provenzano is a normal human

being without serious mental health problems, because he most certainly is not.

Based upon the totality of the evidence and testimony presented to this Court, the Court makes

the following findings:

1) Thomas Provenzano does, at times, engage in bizarre behavior.

2) Based upon the various tests performed on Provenzano by Dr. Fleming, Dr. Dee, and Dr.

McClaren, Thomas Provenzano is not mentally retarded.

Page 25 of 27

3) It was not proven that Thomas Provenzano suffers from brain damage.

4) Although Thomas Provenzano suffers from mental illness, he also exaggerates symptoms of

mental illness and he utilized deception while he was being examined by the various doctors. It is

difficult to delineate Provenzano’s exact mental status, however, it is not necessary to do so for these

proceedings.

5) Thomas Provenzano factually and rationally knows and understands that he was involved in

an incident in the Orange County Courthouse during which he shot and killed Orange County

Courthouse Bailiff Arnie Wilkerson. Provenzano factually and rationally knows and understands that

he was convicted of murder for killing Bailiff Arnie Wilkerson.

6) Thomas Provenzano has a factual and rational understanding of the details of his trial, his

conviction, and the jury’s recommendation by a vote of seven to five that he be sentenced to death.

7) Thomas Provenzano has a factual and rational understanding of the fact that in accordance with

the jury’s recommendation, he was sentenced to death for the murder of Bailiff Arnie Wilkerson, and

that he will die once he is executed.

8) Thomas Provenzano has, for over twenty years on occasion, believed that he is Jesus Christ.

In conjunction with this delusional belief, Provenzano believes that he is not going to be executed

because he murdered another human being, but that he really will be executed because he is Jesus

Christ. However, Provenzano’s delusional belief that his conviction and sentence of death are not

the real reasons for his impending execution does not impair his factual and rational understanding

of the fact that he is facing pending execution for his conviction and sentence of death for murdering

Bailiff Arnie Wilkerson during a shoot-out at the Orange County Courthouse.

Based upon those findings, the Court concludes that Thomas Provenzano has failed to prove by

clear and convincing evidence that he is not competent to be executed. In other words, he has failed

Page 26 of 27

to establish by clear and convincing evidence that he lacks the capacity to understand the fact of his

impending execution and the reason for it.

The Court will comment on one matter. If the burden were on the State to prove beyond a

reasonable doubt that Provenzano is competent to be executed, the Court would conclude that there

is a reasonable doubt. The Court understands that is not the standard, and that the State does not

have the burden to prove anything. Nevertheless, given the nature of the penalty, the Court cannot

help but be troubled by this fact.

Based upon the foregoing and after great reflection on this matter, it is hereby ORDERED and

ADJUDGED that:

1) Thomas Harrison Provenzano does not lack the mental capacity to understand the fact of his

pending execution and the reason for it.

2) Thomas Harrison Provenzano is sane to be executed. In other words, Thomas Harrison

Provenzano is competent to be executed.

DONE and ORDERED on this 8th day of December, 1999.

_S/___________________________

E. RANDOLPH BENTLEY

Senior Judge

I HEREBY CERTIFY that on this 8th day of December, 1999, the original of this Order was

furnished by Federal Express, and that a copy of this Order was transmitted by facsimile transmission

to the Honorable Ray Norman, Clerk of Court, Bradford County, 945 N. Temple Avenue, Starke,

Florida 32091, fax # (904) 964-4454; and that a true and correct copy of the foregoing was furnished

by U.S. mail to:

1) Michael P. Reiter, Chief Assistant CCRC - Middle Region, and John Moser, CCRC -Middle

Region, 3801 Corporex Park Drive, Suite 210, Tampa, Florida 33619, fax (813) 740-3554;

Page 27 of 27

2) Carol M. Dittmar, Assistant Attorney General, Office of the Attorney General, Westwood

Center, Suite 700, 2002 North Lois Avenue, Tampa, Florida 33607-2366, fax (813) 356-1292;

3) Kenneth Nunnelley, Assistant Attorney General, Office of the Attorney General, 444

Seabreeze Boulevard, 5th Floor, Daytona Beach, Florida 32118-3958, fax (904) 226-0457;

4) Carolyn Snurkowski, Assistant Attorney General, Office of the Attorney General, The

Capitol, Tallahassee, Florida 32399-1050, fax (850) 922-6674; and

5) Tanya Carroll, Deputy Clerk Capital Cases, Supreme Court of Florida, Supreme Court

Building, 500 South Duval Street, Tallahassee, Florida 32399-1925, fax (850) 488-2100.

S/ (Robin S. Berghorn)

Court Counsel

Ninth Judicial Circuit Court