A new motion by lawyers for Kimberly Kessler, who is accused of killing her co-worker Joleen Cummings, suggests Cummings could have become “physically violent” with Kessler in an ongoing dispute over drugs in the Tangles Hair Salon in Nassau County where both women worked.
The defense is also accusing the prosecution of withholding evidence that Cummings had drugs in her purse around the time she disappeared.
Kessler is scheduled to go on trial Nov. 29 in the killing of Cummings.
The defense is asking the judge for a hearing on the drug evidence and has also filed yet another motion for a mental competency review.
The defense contends the state knew in 2019 that a small bag of methamphetamine was found in Cummings’ purse, but “intentionally and willfully failed to provide the results” to the defense until last week. In the new motion, the defense also points to the discovery of a small bag of an unknown white powdery substance found at Tangles. The motion says Kessler “kept making a big deal about it,” and kept “complaining of this in the presence of Joleen Cummings.” That second small bag has not been confirmed to be meth. But the defense says this is important new information that needs to be explored.
“It is the defense theory of the case that Ms. Kessler’s complaints about drugs in the hair salon angered Joleen Cummings and was an ongoing source of contention in the workplace. Evidence of such behavior could establish a motive for Joleen Cummings to become physically violent with defendant Kessler,” the motion reads.
The motion points out that there had been a “fairly violent fight” at Tangles and that blood from both women was found throughout the salon.
The defense has never acknowledged that Cummings is dead, and her body has never been found.
Kessler has had three mental competency evaluations. She was ruled not competent for prosecution in the first one in 2019. But Judge James Daniel found she was competent for prosecution — in 2020 and earlier this year. Last week, he denied a defense motion for a fourth mental competency evaluation.
The defense filed its latest request Monday. In the new motion for a mental competency evaluation for Kessler, her lawyers say she has “repeatedly refused to cooperate with counsel or even talk with counsel to assist in her defense.”
They say she “does not have the capacity to participate in the defense of the charges herein, as evidence by each of her recent court appearances” and “it is abundantly clear that defendant is not able to disclose to counsel facts pertinent to the proceedings at issue, and is not able to manifest appropriate courtroom behavior.”
The defense points out the First District Court of Appeals has recently held that trial judges “have a duty to appoint a neutral expert to evaluate a defendant’s competency when there are reasonable grounds to suspect the defendant is not competent to proceed.”