NASSAU COUNTY, Fla. – Lawyers for Kimberly Kessler are asking a higher court to throw out her conviction in the murder of her hair salon coworker, Joleen Cummings.

In the court filing, her attorneys claim Kessler was never competent to stand trial — and are not asking for a new trial but for new proceedings.

Kessler had been ruled fit to stand trial on the final two of three competency evaluations and was ultimately found guilty of first-degree murder after a jury trial.

In the court filing, Kessler’s attorneys argue that she was not competent for trial and that the judge unreasonably ignored the psychologists’ assessments. The defense wants the case sent back for “new proceedings,” presumably another mental competency hearing.

Kessler was first ruled not competent for prosecution in 2019 and remanded into the custody of Florida’s Department of Children and Families. Two subsequent mental competency hearings, both in 2020, and the determination of the trial judge, deemed Kessler to have a personality disorder but was competent for prosecution.

“Despite documentation and unwavering expert testimony to the contrary, the trial court found appellant competent to proceed,” Kessler’s lawyers said in the appeal. “This ruling was an unreasonable determination of facts.”

In the latter two evaluations, Kessler claimed to believe she was being “gassed” while in the Nassau County jail, and that “Hitler was involved in her poisoning.” The lawyers say Kessler “was obsessed with the idea that she was somehow entangled with the FBI and appeared disappointed that the bureau was no longer interested in her.”

They added that Kessler thought people were hacking her phone and following her, and claimed “that a helicopter landed on top of her car.”

The lawyers conclude that Kessler’s “right to due process was violated when she was tried while incompetent.”

attorney Gene Nichols, who is not affiliated with this case, explained what a court looks for in determining whether a defendant is competent to stand trial for murder.

“They’re going to look to the doctors and they’re going to look to expert testimony to determine whether or not somebody can communicate with their lawyers, whether or not they can even share information that will be beneficial,” Nichols said. “What we saw in this case was a battle of the experts.”

Nichols said, with medical experts on both sides, this all came down to the judge’s call.

“He made a credibility call. He made a call between the two doctors, and determined that the one doctor who determined that she was competent had provided the more credible testimony, not calling anybody a liar, but just saying provided the more credible testimony than the other doctor did,” Nichols said. “It is very difficult for a district court of appeal to overturn a judge’s credibility call.”

The jury that convicted Kessler of first-degree murder never saw her during the trial, which lasted two weeks. She was repeatedly removed after making outbursts in court during pretrial hearings, and during her trial, she was removed just moments after being brought into the courtroom for the same reason.

Kessler is serving a mandatory life sentence after her conviction.

Cummings, a mother of three, vanished in 2018. Her remains have never been found.

Copyright 2023 by WJXT News4JAX – All rights reserved.

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