Professor: Convicted Newtown cop killer lacks 'adaptive functioning'
Robert Flor’s death penalty appeal could hinge, in part, on whether or not he could read when he was a boy.
His stepsister told a defense expert that at 11 years old he could not use a sentence with both nouns and verbs, and could not identify 20 objects by name.
A team of attorneys from the Federal Defender’s Office are attempting to have Flor’s death sentence overturned on the premise that he is intellectually disabled. Flor was convicted and sentenced to death for the killing in 2005 of Newtown police Officer Brian Gregg inside St. Mary Medical Center in Middletown. The current appeal seeks to overturn Flor’s death sentence under the Post Conviction Relief Act — state law that empowers defendants to appeal wrongful convictions or illegal sentences.
Dr. James Patton, an adjunct professor of special education at the University of Texas, testified that Flor’s stepsister, Stacy Gilbert, said that despite the presence of magazines in the home and regular reading sessions among the other siblings, she never saw Flor read.
But school records from the 1970s show Flor got satisfactory grades in reading from first and second grade, an “S-plus” in third, a “C” in fourth, a “B” in fifth, and a “C” and a “B-minus” during sixth grade, according to Bucks County First Assistant District Attorney Michelle Henry.
Henry asked Patton if the reason Gilbert never saw Flor read was because he couldn’t read or because he wasn’t interested in the two magazines that were regularly in the house, People and Country Living.
“Is it possible that at 11 years old he just wasn’t interested in reading Country Living?” Henry asked Patton.
Patton said that’s a possibility, but he believes it's more likely that Flor didn’t read because Flor found reading difficult.
Patton, who has testified for federal defense attorneys six times, said that the young Flor couldn’t even tie his own shoes.
Patton said he reviewed numerous records detailing Flor’s education and upbringing. He also collected an adaptive behavior assessment system, or ABAS questionnaire, from the stepsister. The questionnaire focused on what Flor was like as an 11-year-old.
According to Patton, the assessment is given to a person who knows the subject — in this case Flor’s stepsister — well enough to answer the questions. The assessment isn’t given to the subject directly because of concerns that the answers would be skewed. Patton said intellectual disabilities like those experts believe Flor has are often seen in a negative light, and, as a result, people often try to hide or mask those disabilities.
An impaired score on the ABAS would be 70 or below and Patton said the assessment for Flor scored him at 41.
Patton said he based his opinion on interviews and reviews of school records, and said that Flor has had severe problems with reading and couldn’t perform math functions well enough to make a simple purchase at a store. Flor also lacked close friends, was bullied and classmates teased him for his “slowness,” Patton told the court.
But when he suggested that laying carpet for a closet — because it involved measurements — was difficult even for the adult Flor, the defendant erupted.
“Where the (expletive) are you getting this from, (his former colleague) Joe Whitehead? He’s a (expletive) arrowhead,” Flor shouted. He attempted to storm out of the court, motioning for sheriff’s deputies to take him away, but Bucks County Judge Alan Rubenstein advised him of his right to remain in the courtroom and the proceedings resumed.
Flor had two other outbursts, both of which Patton attributed to Flor — like many impaired people, according to him — not wanting to be seen as impaired.
During her cross-examination, Henry questioned Patton’s selection of Gilbert for the assessment. Henry read repeatedly from directions for the assessment which call for someone who has had frequent contact with the subject (Flor), someone who has prolonged contact with the subject and someone who has had recent contact with the subject.
Patton admitted that the assessment is not designed for 36-year-old recollections. Henry also questioned his use of Gilbert instead of someone who spent more time with Flor, such as his mother, grandmother or two other siblings.
When they were both 11 years old, Gilbert only saw Flor on the weekends, according to statements that Henry read into the record. And even then she wasn’t there at her father’s home — Flor’s stepfather — every weekend, instead staying with her mother because she wanted to avoid the fighting between her father and stepmother, Flor’s mother.
Henry’s cross-examination of Patton was ongoing when Rubenstein recessed the hearing late Friday afternoon. Federal Defender Peter Williams and his team have several more expert witnesses who will testify. Henry told Rubenstein that she plans to have rebuttal witnesses.
The attorneys agreed to present Rubenstein with a future date for the continued proceedings.
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