VIDEO/PHOTOS: Mesac Damas in court for status hearing

Damas set to undergo second competency evaluation

Mesac Damas enters the courtroom during a status hearing for Damas at the Collier County Courthouse in Naples on Nov. 19, 2010. Greg Kahn/Staff

Photo by GREG KAHN

Mesac Damas enters the courtroom during a status hearing for Damas at the Collier County Courthouse in Naples on Nov. 19, 2010. Greg Kahn/Staff

Video from NBC-2

— Questions of competency are slowing progress in the death penalty case of Mesac Damas, his attorneys told a judge on Friday.

The issue of whether the accused killer can participate in his own trial threatens to further extend the year-old case, as the court readies for a likely competency hearing. Witness depositions have yet to begin, and Damas attorney Kathleen Fitzgeorge said they won't until her client begins talking to her.

"We're not comfortable with proceeding with depositions at this stage until Mr. Damas is (able to participate)," Fitzgeorge said.

Damas remained silent through the 45-minute status hearing, and he appeared attentive. Shackled and clad in an orange jumpsuit, he sat beside his attorneys and faced Collier Circuit Judge Franklin Baker.

His health, both physical and mental, has appeared questionable at times. Damas has lost considerable weight in a year of incarceration, and in previous hearings he has muttered to himself and rocked back and forth in his seat.

Deputies strapped him into a restraining chair for an August status hearing, after he refused to dress in orange coveralls for the appearance. The suspect sang as he was wheeled into the courtroom, and he yelled directly at Baker.

Friday, Baker told parties he was troubled by the delay.

"We need to make some progress," he said on Friday. "And if we sit here and say competency is an issue--I know it's an issue. Let's get beyond that."

Both sides agreed to a second competency evaluation, a required step before the court can consider Damas' competency. Florida criminal procedure requires a minimum of two evaluations before a hearing, and a third remains optional.

The results of the first evaluation, conducted by Fort Myers psychologist Robert Silver, have been released to both parties and Baker. Fitzgeorge declined to talk about Silver's findings.

Assistant State Attorney Richard Montecalvo asked that the second evaluation be sought. Michael Herkov, a psychologist from Gainesville, will examine Damas.

A defendant's competency to undergo trial is a legal determination based on how well that person can understand and participate in the case. Defendants deemed incompetent are often sent to a state facility for their competency to be "restored." In some cases, suspects cycle between findings of competence and incompetence.

Baker, eager to move forward with the case, urged Fitzgeorge to conduct depositions of certain witnesses without her client's participation. Fitzgeorge said Damas had a right to be present and communicative for all depositions.

"It is virtually impossible to proceed without his participation," she told reporters outside the courtroom.

Fitzgeorge, a deputy public defender, assumed the case this summer after Damas' previous attorney, Michael Orlando, left the defender's office. She is assisted by defenders Neil McLoughlin and Connie Kelley. Montecalvo and assistant state attorney Dave Scuderi were present for the prosecution on Friday. State Attorney Stephen Russell is leading the prosecution.

Damas, 34, is charged with six counts of first-degree murder in the slayings of his wife and five children. The bodies were found inside the family's North Naples home in September 2009, their throats cut.

The victims were Guerline Damas, 32; Meshach "Zack" Damas, 9; Maven, 6; Marven, 5; Megan, 3; and Morgan, 19 months.

If convicted, Damas faces the death penalty.

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