STUART – A judge Friday rejected a request from prosecutors to have a third state mental health expert evaluate murder suspect Austin Harrouff who has claimed he was insane when he killed a Tequesta couple in 2016.
After a two-hour hearing, Martin County Circuit Judge Sherwood Bauer denied a request from prosecutors to have a new mental health expert evaluate Harrouff for the purposes of determining if he was legally insane Aug. 15, 2016, when he murdered Michelle Mishcon, 53, spannd John Stevens III, 59, at their home on Southeast Kokomo Lane in southern Martin County.
Friday’s ruling means unless the state appeals Bauer’s order to the Fourth District Court of Appeal in West Palm Beach, Harrouff’s non-jury trial will begin Nov. 28 as scheduled.
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Harrouff, 25, has pleaded not guilty to two counts of first-degree murder with a weapon and one count of burglary of a dwelling with assault or battery while armed. He’s accused of biting Stevens in the face and abdomen before police forcefully pulled him away in a seemingly random and unprovoked attack.
He’s also charged with attempted first-degree murder with a weapon for injuring their neighbor, Jeffrey Fisher. Deputies reported Harrouff was walking to his father’s home in the neighborhood when he targeted Stevens III and Mishcon.
If convicted, Harrouff faces two mandatory life prison terms.
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Last month, prosecutors filed papers asking Bauer to approve the state substituting another mental health expert for Tampa neuropsychologist Michael Gamache after he indicated he was resigning from about 25 criminal cases because of personal health matters.
Gamache, who prosecutors hired in March 2020, had concluded Harrouff was not insane at the time he committed the murders. His conclusions contradicted the findings of two other mental health experts who issued reports in 2020.
Gamache reached his findings after he evaluated the former Florida State University student on Sept. 8, 2021 via Zoom, court records show.
During a hearing in June, though, Gamache stated he never diagnosed Harrouff and hadn’t prepared a report on his findings.
For Harrouff to be acquitted, he must convince a judge or jury he had a mental infirmity or defect that prevented him from knowing what he was doing or its consequences. Or if he understood what he was doing and the consequences, he “did not know that was he was doing was wrong.”
Two psychologists — one hired by the defense and one for the state — have concluded that during the fatal attacks, Harrouff, then 19, was suffering an “acute psychotic episode” and he was “unable to distinguish right from wrong.”
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In court Friday, Gamache appeared via Zoom and was quizzed by Assistant State Attorney Anastasia Norman about his ability to continue working in the case.
“Dr. Gamache, as this point are you physically unable to participate in the trial of the state vs. Austin Harrouff?” she asked.
“Yes I am,” he replied.
“Even if it’s done remotely or via Zoom?” Norman pressed.
“That is correct. Even if I were to testify remotely and listened to the defense expert remotely … it would likely involve 40 to 80 hours of my time in preparation and during the course of the trial,” Gamache said, “and I simply am physically unable to do that at this time.”
Prosecutors have indicated they expected to call Gamache as a rebuttal witness during Harrouff’s trial to counter the reports and opinions offered by mental health experts hired by his defense team. When Bauer initially granted a state motion to hire Gamache as a second mental health expert, he ruled he wouldn’t approve hiring a third expert.
Norman told Bauer the state had “tried to work hard to try to get it to resolution,” and until recently believed Gamache would be able to remain on the case.
“And we believed that he would be able to testify in a trial,” she said. “Obviously, that’s no longer the case.”
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Bauer though, seemed exasperated hearing Gamache testify that he’d been telling prosecutors since 2020 he had medical issues that were negatively impacting his health.
Gamache repeatedly said he’d alerted prosecutors that his medical issues were hampering his abilities.
When Bauer asked him directly about the nature of his ailments, Gamache declined to disclose it.
“Can I ask generically, is it a physical ailment?” Bauer asked. “Or let’s call it a mental ailment? If you don’t want to answer that’s fine.”
“Your honor, I’m gonna respectfully invoke my right under the constitution of Florida not to disclose confidential health information,” Gamache said. “I think that that puts me in a very awkward position.”
Defense attorney Robert Watson argued against the state being able to hire a third expert to evaluate Harrouff. He said Gamache seemed capable of participating in Friday’s hearing and noted the defense had worked for months to prepare for his expected trial testimony.
“The last resort would be to at this point … to allow a different doctor to come in and do an evaluation,” Watson said. “They don’t get to just hire hired-gun after hired-gun.”
Bauer appeared to agree.
He said he saw “nothing that indicates to me that makes me determine that he is unavailable to testify.”
“The state is accepting the doctor’s representation without me knowing what the basis for that is … He has a right not to say it and I have a right to not permit another expert,” Bauer said. “State, call him, not call him. If you feel like not calling him because you believe that he can’t participate in the proceedings or you don’t want to inconvenience him or cause any distress to him? Fine with me, either way is fine.”
After court, State Attorney Tom Bakkedahl said they’ll consult the possibility of appealing Bauer’s ruling with the Florida Attorney General’s Office.
“We’d have to fill them in on the facts and circumstances and ask for their opinion regarding whether or not they think there’s any reasonable likelihood of success,” Bakkedahl said.
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He said his office had wanted Gamache to remain on the case because losing him now would be “kind of reinventing the wheel.”
“And that’s why we encouraged him to stay on. We never thought we would get to this point, where his health would be so diminished that he wouldn’t be able to assist us,” Bakkedahl said. “But, unfortunately, life happens. But the court’s taken a position that life happens, and we’ll have to deal with it.”