Mental state likely to be key in Zito trial

Proceedings to start today in killing of two officers

May 13, 2002|By Chris Guy | Chris Guy,SUN STAFF

SALISBURY - Fifteen months after he was charged with killing two law enforcement officers at a tattered Eastern Shore trailer park, the central question surrounding Francis Mario Zito remains - whether his mental illness meets Maryland's standards for the insanity defense.

Zito, a wild-eyed, rumpled and mumbling character who was all too familiar to police and residents as he roamed the streets of small-town Centreville, the Queen Anne's County seat, faces two counts of first-degree murder and a possible death sentence.

In a trial set to begin today, Zito's lawyers will try to convince jurors that Zito, who has been diagnosed repeatedly with a form of schizophrenia, was unable to appreciate that he was committing a crime or that because of his illness had no control over his actions at the time of the shootings.

Zito has pleaded innocent and not criminally responsible in the shooting deaths of 28-year-old Sheriff's Deputy Jason Schwenz and Centreville police Officer Michael S. Nickerson, 24, who were called to investigate a routine noise complaint.

The two officers were shot as they stood in an enclosed porch and tried to enter Zito's mobile home. Schwenz was hit by the first of several shotgun blasts fired through the front door and died instantly. Nickerson died later at a trauma center in Baltimore.

Defense attorneys say Zito, though under treatment for his illness, had not taken his prescribed medication for two days before the shooting.

On March 28, Wicomico County Circuit Court Judge Donald C. Davis ruled that Zito was competent to stand trial. Davis was assigned the case when defense attorneys were granted a change of venue, which is automatically approved in death penalty cases.

At that hearing - in a preview of what is expected during the trial - Dr. Stephen Goldberg, a psychiatrist at Clifton T. Perkins Hospital Center, a state mental facility in Jessup where Zito has been held since March, contradicted two defense psychiatrists, testifying that Zito is competent.

Davis also has ruled that police illegally searched Zito's mobile home, but prosecutors will be allowed to use evidence investigators gathered, including numerous statements Zito made to police.

"You can have a mental illness and still be capable of understanding your actions," says Queen Anne's prosecutor David W. Gregory. "That's the case with Mr. Zito. This isn't going to be rocket science. He was right there on planet Earth in Centreville, Maryland. He knew they were police officers."

Frequently during pre-trial hearings, Zito has spoken out of turn, threatening to fire his lawyers, saying police stole his belongings and accusing them of planting evidence and ransacking the mobile home he rented from his mother, Betty Zito.

Even prosecutors acknowledge that nearly everyone in Centreville, population 2,100, knew Zito as "crazy Frank." Despite a history of harassing women and engaging in sometimes violent arguments with his mother, who once filed charges accusing Zito of assaulting her with a box of plastic wrap, many in town considered him a nuisance, not a threat.

Early last month, Zito blurted out a confession in the Wicomico County courtroom, where the trial has been moved because of extensive pre-trial publicity, saying in open court that he would not have fired a 12-gauge shotgun if officers hadn't kicked in a porch door and then tried to enter his mobile home with a key provided by his mother.

Zito has undergone a battery of tests by psychiatrists hired by prosecutors and his public defenders. Their reports, along with paperwork outlining more than 40 motions filed by both sides, are crammed in five files in the Salisbury courthouse.

"I really believe that in this case, the insanity defense is not far-fetched," says defense attorney Patricia Chappell. "It's a very tough case, but Frank is a very sick man, someone with a documented 20-year history of mental illness."

The difficulty in winning with an insanity defense, which has narrow legal parameters in Maryland and in many other states, lies in overcoming the reluctance of most juries, say defense attorneys such as Catherine Flynn, who has argued such a defense in two high-profile cases in the last four years.

In 1998 she successfully defended Jason DeLong, a Carroll County teen who was found not criminally responsible in his mother's stabbing death. Last year, Flynn was one of a team of lawyers defending Richard Wayne Spicknall II, a Laurel man who dropped his insanity plea to avoid a possible death sentence in the fatal shootings of his two small children.

"I think juries find this very difficult because they consider it as an excuse," Flynn says. "I think they believe that if someone is found not criminally responsible, he'll be out walking the streets, which is not the case at all. You'd think if anybody has a chance with this, it's Zito. It's not a manufactured defense."

Lawyers expect the trial to take three weeks or more. Last week, a pool of 120 prospective jurors was whittled to 58. The selection process must be completed before opening statements are heard.

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