Supreme Court of Florida
No. SC07-1167
HERMAN LINDSEY, Appellant, vs. STATE OF FLORIDA,
Appellee. [July 9, 2009] PER CURIAM.
Herman Lindsey appeals from a conviction of first-degree murder and a sentence of death.1 Because we find the evidence presented at trial legally insufficient to support the convictions, we reverse and direct that a judgment of acquittal be entered. See Ballard v. State, 923 So. 2d 475 (Fla. 2006). I. FACTS AND PROCEDURAL HISTORY
1. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.
The felony murder charge against Lindsey resulted from the shooting death of Joanne Mazollo, who was killed during the course of a pawn shop robbery on April 19, 1994. Ms. Mazollo‘s body was found in the back room of the Big Dollar
pawn shop where she had worked as a clerk. The medical examiner concluded that Ms. Mazollo died from a single gunshot wound to the head and that her death was likely instantaneous. Twelve years later, in 2006, Lindsey was charged with the crime, adjudicated guilty, and sentenced to death. The evidence presented at Lindsey‘s trial established that, between 8:00 and 8:30 on the morning of the murder, the owner of the pawn shop, Gerald Singer, went to Big Dollar to set up the store for the day. He spoke to Ms. Mazollo by phone around 9:30 a.m. that morning, as was his routine, and she let him know that she had arrived and everything was okay. Thereafter, around 10:30 a.m., Singer called the shop several times but Ms. Mazollo did not answer. Concerned, Singer got in his car and drove to Big Dollar, where he discovered her dead body slumped in a chair in the back room. Singer testified that between five and seven firearms were missing from the store and that the cash drawer he had filled that morning was empty. Additionally, he stated there were around fifty individual envelopes of jewelry and a blue velvet Crown Royal bag containing jewelry missing from the safe in the back room.
In October 1995, Lindsey gave a taped statement to police, which was played for the jury, in which he implicated Ronnie LoRay2 for the crime. He said
2. LoRay is currently incarcerated for second-degree murder for the death of Ms. Mazollo and the robbery of Big Dollar pawn shop. LoRay was arrested in December 2005, a few months before Lindsey was charged.
that on the day of the robbery, LoRay came over to his house and was very upset. He said that LoRay said that .they. robbed a place and that he heard a shot but did not know if the woman was dead or not. Lindsey said LoRay had gold jewelry in his pockets, a few hundred dollars, and a gun. Lindsey admitted being in the store prior to the crime and pawning his Sega under a false name. He also admitted that he sometimes helped LoRay get rid of stolen merchandise. But he denied being involved in the robbery. The prosecution also played portions of three separate phone conversations Lindsey made from prison. During one of those conversations, Lindsey claimed that he was home with his wife at the time of the crime. In a subsequent call to his mother, Lindsey stated that he was afraid that, because the police had LoRay‘s fingerprints, LoRay would try to get a deal with the police by implicating Lindsey. Lindsey said he needed to talk to LoRay and assure him that he would not betray him and to let him know he was not alone. He also stated that he believed that his ex-wife was going to implicate him for the crime.
Several witnesses who testified for the State presented evidence by which the State sought to establish Lindsey‘s guilt. First, Demeatres Gause (.Nikki.), Lindsey‘s ex-wife, testified that a few days before the murder, she went to Big Dollar with Lindsey and LoRay and that the clerk in the store greeted Lindsey as if she knew him. She further testified that, on the morning of the murder, Lindsey
was not in the apartment where she sometimes stayed with him when she awoke between 10:30 and 11:00 a.m., although she admitted he could have been downstairs. Then later, sometime before noon, Lindsey and LoRay arrived at the apartment together, just before the story of the Big Dollar robbery and Ms. Mazollo‘s murder appeared on the twelve o‘clock news. Nikki noted that Lindsey asked her to turn up the volume on the news report.
At some point later, Nikki discovered a Crown Royal bag containing jewelry in a closet in the apartment, and she indicated that it had not been there before.3 Nikki also admitted that several other people lived at the apartment where she only .sometimes. stayed with Lindsey, including Ronnie LoRay, a girl named Marvet, and Marvet‘s children. But she said that Lindsey eventually sold the jewelry at a flea market, that she never asked him about the jewelry, and that Lindsey never told her anything about it or the murder and robbery of the pawn shop.
3. Although the State contended in its opening argument that Nikki would testify that Lindsey and LoRay came into the apartment on the morning of the robbery and murder carrying bags of jewelry, her actual testimony at trial was that she saw a Crown Royal bag of jewelry in a closet at some later date.
Next, Alfonzer Harrold, described as a very close friend of Nikki‘s, testified that he occasionally hung out with Lindsey and LoRay and that the three of them went to Big Dollar pawn shop the day before the murder. Harrold said they were looking around as if they were going to buy something. At first, there was a
woman working there alone but then a man came out of the back room so they all left a few minutes later. The next day, LoRay and Lindsey came over to Harrold‘s house, and Harrold noticed that LoRay was wearing a new bracelet. Harrold said he later told the police what he knew because he hoped to receive a $1,000 reward that he could use to buy cocaine. Mark Simms also testified for the State about some comments Lindsey made to him. Simms stated that he met Lindsey in jail on May 20, 1994, about a month after the crime at Big Dollar. A few days later, the two men had a .macho. conversation about robberies. Simms admitted to Lindsey that he was involved in a robbery where someone got shot but not killed. Lindsey replied that Simms should have handled the situation better and that Simms should have killed the person because he saw Simms‘s face. Lindsey also told Simms that he had to do that once. Lindsey said he had to kill someone. Simms admitted he had no idea what Lindsey was talking about at the time. Other evidence revealed that LoRay‘s fingerprint was found on a stun gun box that was located in the back room of Big Dollar pawn shop next to the safe. And Lindsey‘s thumbprint was recovered from a pawn slip dated March 31, 1994, under the name of David Ashley, the name Lindsey used to pawn his Sega.
At the conclusion of the presentation of the evidence, Lindsey moved for judgment of acquittal, contending that the evidence was insufficient for a
conviction and that the State failed to prove its case. The trial court denied the motion. II. ISSUES ON APPEAL
On appeal, Lindsey raises eighteen issues: (1) the trial court erred in admitting irrelevant testimony; (2) the trial court erred in denying Lindsey‘s motion for judgment of acquittal; (3) the trial court erred in allowing a witness to testify that the victim knew Lindsey; (4) the trial court erred in allowing the State to redact a portion of Lindsey‘s statements; (5) the trial court erred in admitting evidence that Lindsey had been in jail; (6) the trial court erred in denying Lindsey‘s motion to dismiss the indictment; (7) the trial court erred in admitting an autopsy photo into evidence; (8) the trial court erred in sending unrequested evidence to the jury; (9) the trial court erred in denying Lindsey‘s request for a new trial; (10) the trial court erred in finding the avoid arrest aggravator; (11) the trial court erred in denying Lindsey‘s request for a special jury instruction; (12) the trial court erred in instructing the jury on the avoid arrest aggravator; (13) the death sentence is not proportionate to the crime; (14) the trial court erred in allowing the prosecution to question Lindsey about guilt phase issues during the penalty phase; (15) the trial court erred in allowing the prosecution to impeach Curtis Fox; (16) the trial court erred in giving great weight to the jury‘s recommendation of the
death sentence; (17) Florida‘s death penalty law is unconstitutional; and (18) Florida‘s felony murder aggravator is unconstitutional. Because we find that the trial court erred in denying Lindsey‘s motion for a judgment of acquittal, we do not address the other issues. III. ANALYSIS Preliminarily, we note that this case is based completely on circumstantial evidence. And, .where a conviction is based wholly upon circumstantial evidence, a special standard of review applies.. Reynolds v. State, 934 So. 2d 1128, 1145 (Fla. 2006) (quoting Darling v. State, 808 So. 2d 145, 155 (Fla. 2002)). The special standard requires that the circumstances lead .to a reasonable and moral certainty that the accused and no one else committed the offense charged. It is not sufficient that the facts create a strong probability of, and be consistent with, guilt. They must be inconsistent with innocence.. Frank v. State, 163 So. 223, 223 (Fla. 1935). And, in order for the facts to be .consistent with the defendant‘s guilt,. the State must establish every element of the offense. Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002). As this Court has explained,
[e]vidence which furnishes nothing stronger than a suspicion, even though it would tend to justify the suspicion that the defendant committed the crime, it is not sufficient to sustain conviction. It is the actual exclusion of the hypothesis of innocence which clothes circumstantial evidence with the force of proof sufficient to convict. Circumstantial evidence which leaves uncertain several hypotheses, any one of which may be sound and some of which may be entirely consistent with innocence, is not adequate to sustain a verdict of guilt.
Even though the circumstantial evidence is sufficient to suggest a probability of guilt, it is not thereby adequate to support a conviction if it is likewise consistent with a reasonable hypothesis of innocence. Ballard, 923 So. 2d at 482 (quoting Davis v. State, 90 So. 2d 629, 631-32 (Fla. 1956)). And, .[a]lthough the jury is the trier of fact, a conviction of guilt must be reversed on appeal if it is not supported by competent, substantial evidence.. Id. (quoting Crain v. State, 894 So. 2d 59, 71 (Fla. 2004)).
In Ballard, we held that it is the duty of .the courts to ensure that the State is held to its burden of proof when someone is charged with a serious crime and liberty and life are at risk. . . . [When a] case is purely circumstantial, we must determine whether competent evidence is present to support an inference of guilt =to the exclusion of all other inferences.‘ . Id. at 485 (quoting Crain, 894 So. 2d at 71). In Ballard, investigators determined that one of the four fingerprints found on the bed frame near the victim‘s upper torso belonged to the defendant. Id. at 478. In addition, a forensic scientist determined that one of several hairs found in the hand of the victim was consistent with the arm hair of Ballard; but he was unable to determine whether Ballard‘s arm hair had fallen out naturally or if it had been forcibly removed. Id. at 479-80. At the close of the State‘s evidence, .Ballard moved for a judgment of acquittal, contending that there was a reasonable hypothesis of innocence in that the only evidence that linked Ballard to the case
[was] equally consistent with the fact that he was often a guest in [the victims‘] apartment.. Id. at 481. This Court agreed. It stated: In capital cases, this Court has recognized that it has a fundamental obligation to ascertain whether the State has presented sufficient evidence to support a conviction. Ballard contends that although the State proved that [the victims] were robbed and killed, and one of his hairs and fingerprints was in the apartment, the State failed to prove that Ballard was the perpetrator of those crimes. Id. at 482.
We find that the present case is controlled by Ballard in that the State‘s evidence, while perhaps sufficient to create some suspicion, is simply not sufficient to support a conviction. The entire circumstantial case against Lindsey consists of the following evidence: (1) a Crown Royal bag containing jewelry was taken during the robbery of Big Dollar pawn shop; (2) Nikki found a Crown Royal bag containing jewelry in a closet of an apartment where she sometimes stayed with Lindsey and several other individuals, including LoRay; (2) Lindsey eventually sold the jewelry from the bag in the closet at a flea market; (3) Lindsey told Simms that Simms should always kill witnesses to crimes and that Lindsey had to do that. No evidence shows that the bag of jewelry Nikki found in the closet is the same bag of jewelry that was missing from the pawn shop safe. In addition, no evidence shows that Lindsey placed the bag in the closet or that he ever had possession of it before he sold the items at a flea market. Furthermore, while we specifically decline to address whether Simms‘s testimony was even admissible on relevancy
grounds, we nevertheless find that there is nothing in Lindsey‘s statements to Simms that, when combined with all the other evidence, is sufficient to convict him for the murder of Ms. Mazollo. The State established that Lindsey made several visits to the pawn shop prior to the murder and that Ms. Mazollo appeared to know him. Yet, the State failed to produce any evidence in this case placing Lindsey at the scene of the crime at the time of the murder. Even if Lindsey was not home at the time the crime occurred, it does not mean that he was out robbing the Big Dollar pawn shop or killing Ms. Mazollo. Indeed, we find that the evidence here is equally consistent with a reasonable hypothesis of innocence. Even if the State had proved that the bag of jewelry Nikki discovered was the same bag of jewelry missing from the pawn shop, it would not be dispositive here because LoRay, as well as several other people, had access to the closet where Nikki discovered the bag containing jewelry; and Lindsey admitted that he sometimes helped LoRay get rid of stolen merchandise.
Consequently, we find that the evidence presented to support an inference of guilt does not exclude all other inferences. While we agree that the evidence here does seem suspicious, even a .deep suspicion the appellant committed the crime charged is not sufficient to sustain conviction.. Williams v. State, 143 So. 2d 484,
488 (Fla. 1962); see also Ballard, 923 So. 2d at 482 (.Suspicions alone cannot satisfy the State‘s burden of proving guilt beyond a reasonable doubt . . . ..). IV. CONCLUSION Accordingly, we conclude that the evidence here is insufficient to support Lindsey‘s conviction. Therefore, we reverse and vacate the conviction and sentence and remand with directions that a judgment of acquittal be entered. It is so ordered. QUINCE, C.J., and PARIENTE, LEWIS, CANADY, POLSTON, LABARGA, and PERRY, JJ., concur. QUINCE, C.J., concurs with an opinion, in which PARIENTE and PERRY, JJ., concur. NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND IF FILED, DETERMINED. QUINCE, C.J., concurring. I concur in the majority‘s decision that the evidence is insufficient to support Lindsey‘s conviction, but write separately because I find the State‘s line of questioning of Lindsey during the penalty phase improperly exceeded the scope of cross-examination and that the trial court erred in allowing the prosecution to question Lindsey about guilt phase issues.
During the penalty phase, Lindsey took the stand and testified during direct examination solely about his family and childhood. Then, on cross-examination, the prosecution began by asking, .Mr. Lindsey, tell me about the first time you met
the lady at the pawn shop.. Defense counsel timely objected, and a sidebar conference ensued. At sidebar, the State argued that the defense brought in the guilt phase because it had presented witnesses during the penalty phase to attack the credibility of State witness Mark Simms. The court ruled: .What‘s good, as they say, for the gander. Going to, of course, the aggravating circumstances. You can‘t go into every last thing, but going into the aggravating circumstances, those specifically relating to the Simms‘ issues. Overruled.. Thereafter, the prosecution continued to question Lindsey about Joanne Mazollo and the pawn shop: Prosecutor: Tell me about the first time you met the lady at the pawn shop. Lindsey: I don‘t remember. Prosecutor: Okay. You don‘t remember going in and pawning something under the name of David Ashley? Lindsey: Yes, I do remember that. Prosecutor: And you don‘t remember the lady who was there? Lindsey: Not right off hand, no. Prosecutor: When we heard your ex-wife Nikki testify that she was in the pawn shop with you a couple of days before the murder, and you and the woman greeted each other, because you knew each other, tell me about that. Lindsey: She said that when I came in it was like we knew each other. Any place I go, I always show respect for the person that‘s there. Prosecutor: So you were there, met the lady that day. Tell me what you remember about it. Lindsey: I‘m not saying I was there that particular day. I‘m just saying, when I go into places, I‘d be respectful of people. Prosecutor: Okay. How about the day before the murder? Lindsey: I don‘t recall. Prosecutor: Do you recall when you went back in there with Ronnie LoRay and Alfonzer Harrold?
Lindsey: I don‘t recall that. Prosecutor: You don‘t remember that? Lindsey: No, I don‘t remember that. Prosecutor: She was seated in a chair. She didn‘t resist you, did she? Defense: Objection. Argumentative. Court: Sustained. Prosecutor: Why did you put a gun to her head and pull the trigger? Lindsey: I didn‘t. Defense: Objection, Your Honor, goes to— Prosecutor: Goes to why he did it. Defense: —what we said at sidebar. Court: Overruled. Prosecutor: Why did you do that? Lindsey: I didn‘t. Prosecutor: So the jury is wrong? Lindsey: I think the jury is mistaken. Section 90.612 (2), Florida Statutes (2006), provides: Cross-examination of a witness is limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in its discretion, permit inquiry into additional matters.
.Thus, as a general rule, the questions on cross-examination must be no more broad in scope than those on direct.. Green v. State, 688 So. 2d 301, 305 (Fla. 1996) (holding that it was error to allow questions on cross-examination related to a witness‘s prior use of alcohol when questions on direct were limited to use of alcohol on the night of the murder); Salas v. State, 972 So. 2d 941, 956 (Fla. 5th DCA 2007) (.[C]ross examination must relate to credibility of the witness or be germane to the matters brought out on direct examination..) (citing Steinhorst v. State, 412 So. 2d 332, 337 (Fla. 1982)). These rules regarding cross-examination
apply to all witnesses, including a defendant who takes the witness stand as Lindsey did in this case. This Court has also defined the permissible scope of cross-examination as follows: When the direct examination opens a general subject, the cross-examination may go into any phase, and may not be restricted to mere parts . . . or to the specific facts developed by the direct examination. Cross-examination should always be allowed relative to the details of an event or transaction a portion only of which has been testified to on direct examination. As has been stated, cross-examination is not confined to the identical details testified to in chief, but extends to its entire subject matter, and to all matters that may modify, supplement, contradict, rebut or make clearer the facts testified to in chief. Zerquera v. State, 549 So. 2d 189, 192 (Fla. 1989) (quoting Coxwell v. State, 361 So. 2d 148, 151 (Fla. 1978)). And if a party wishes to elicit testimony on cross-examination that goes beyond what has been testified to in the direct examination, he must make the witness his own. Steinhorst, 412 So. 2d at 337. To be clear, a party cannot use cross-examination as a vehicle for presenting evidence. Id.
Here, the prosecution‘s questioning of Lindsey greatly exceeded the allowable scope of cross-examination. Lindsey never broached the subject of Mazollo or the pawn shop murder during his direct examination. Rather, Lindsey‘s testimony on direct was limited solely to his childhood and his relationship with his family. The prosecutor‘s entire questioning of Lindsey on cross-examination regarding Mazollo (i.e., how Lindsey knew the woman at the
pawn shop; the fact that the woman was seated and did not resist Lindsey; why Lindsey put the gun to the woman‘s head and pulled the trigger) had nothing to do with Lindsey‘s relationship with his family or his childhood. Thus, the trial court abused its discretion in allowing the prosecution to exceed the scope of direct during its cross-examination of Lindsey during the penalty phase. See Salas, 972 So. 2d at 956 (.An appellate court reviews a trial court‘s ruling concerning the scope of cross-examination for an abuse of discretion..). I conclude that this error was not harmless. The prosecution‘s comments were not only improper, but were also prejudicial and made with the apparent goal of inflaming the jury. Therefore, it cannot be concluded that these comments did not affect the jury‘s decision to impose the death penalty. See State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986). PARIENTE and PERRY, JJ., concur. An Appeal from the Circuit Court in and for Broward County, Eileen M. O‘Connor, Judge – Case No. 06004260CF10A Carey Haughwout, Public Defender, and Jeffrey L. Anderson, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, Florida, for Appellant Bill McCollum, Attorney General, Tallahassee, Florida, and Lisa-Marie Lerner, Assistant Attorney General, West Palm Beach, Florida, for Appellee
Thursday, July 9, 2009
Florida Supreme Court frees Death Row inmate in 1994 Broward murder
Florida Supreme Court frees Death Row inmate in 1994 Broward murder
http://www.miamiherald.com/news/breaking-news/story/1134309.html
Herman Lindsey, 36, was convicted in 2006 of the murder of Joanne Mazollo at the Big Dollar pawn shop.
BY MARC CAPUTO
Herald/Times Tallahassee Bureau
TALLAHASSEE -- The Florida Supreme Court unanimously ordered Thursday that a Death Row inmate be set free because there wasn't enough evidence to convict him of murdering a Fort Lauderdale pawn shop worker.
Three justices went a step further than their colleagues, issuing a separate opinion that said the Broward County court ''erred'' by allowing a prosecutor to inflame jurors when they were deciding whether to recommend the death sentence for Herman Lindsey.
Lindsey, 36, was convicted in 2006 of the murder of Joanne Mazollo at the Big Dollar pawn shop. That happened 12 years before, but the cold case was cracked by a Fort Lauderdale police detective.
Lindsey, 36, was convicted in 2006 of the murder of Joanne Mazollo at the Big Dollar pawn shop. That happened 12 years before, but the cold case was cracked by a Fort Lauderdale police detective.
During trial, prosecutors presented numerous pieces of evidence suggesting Lindsey and another man, Ronnie LoRay, committed the crime. LoRay later pleaded guilty. A damning statement against Lindsey, who has a long criminal record, came from a former Broward County jail inmate who said Lindsey admitted to having murdered a witness in a robbery.
''While we agree that the evidence here does seem suspicious, even a deep suspicion the appellant committed the crime charged is not sufficient to sustain conviction,'' the court ruled.
After his conviction, Lindsey tried to persuade jurors to spare him from the death penalty. The prosecutor, whose name was not listed in the court ruling, should have asked Lindsey about his childhood during this phase of the case.
After his conviction, Lindsey tried to persuade jurors to spare him from the death penalty. The prosecutor, whose name was not listed in the court ruling, should have asked Lindsey about his childhood during this phase of the case.
But the prosecutor, instead, asked Lindsey about the details of the crime.
''Why did you put a gun to her head and pull the trigger?'' the prosecutor asked. ''I didn't,'' Lindsey said.
Lindsey's lawyer objected, but he was overruled. The prosecutor continued, and then asked Lindsey, ``so the jury is wrong?'
''I think the jury is mistaken,'' Lindsey answered.
None of that should have happened, wrote Justice Peggy A. Quince.
''The trial court abused its discretion,'' Quince wrote. ``This error was not harmless. The prosecution's comments were not only improper but were also prejudicial and made with the apparent goal of inflaming the jury.''
Neither prosecutors, the defense nor the Broward Circuit judge, Eileen M. O'Connor, could be reached.
Marc Caputo can be reached at mcaputo@MiamiHerald.com.
Tuesday, July 7, 2009
Ex-prison officer sentenced for pouring scalding water on inmate
By Lise Fisher
Staff writer
Published: Monday, July 6, 2009 at 6:34 p.m.
Last Modified: Monday, July 6, 2009 at 6:34 p.m.
A former Florida State Prison corrections officer, convicted earlier this year of throwing scalding water on an inmate, was sentenced Monday to three years in prison in a federal court in Jacksonville, the U.S. Department of Justice reported.
Paul Tillis, 44, had been convicted in January on a federal civil rights charge related to assaulting an inmate, according to the federal agency. His prison sentence will be followed by two years of post-release supervision.
Tillis had been accused of pouring the hot water, which was between 159 and 180 degrees, on inmate Jerry Williams' chest, causing second-degree burns, prosecutors said. The incident occurred in August 2005. At the time, Williams was fabricating a suicide attempt so he could be transferred to a psychological treatment facility, according to the DOJ.
Sentencing guidelines had set a sentence for Tillis ranging from about seven years to nine years in prison.
Tillis' defense had argued for a downward departure, noting he had no prior criminal history and had received regular, positive reviews from his employer during his more than seven years as a corrections officer, court records show. Many of those years he was assigned to the disciplinary confinement wing of the prison, including when the incident occurred.
Numerous letters of support, some from family and others from members of the community, were forwarded to the court before Tillis' sentence, supporting him and asking for leniency, court records show. Some of the letters described Tillis as a family man with children, a "gentle giant" and a "good man who made a gross error in judgment." Among those who wrote letters were Union County Sheriff Jerry Whitehead, Union County Library Director Mary Brown, Lake Butler City Commissioner Brantley Crawford and Lake Butler Mayor Jimmy Beasley. None spoke about the facts of the case but rather about their personal impressions of Tillis.
The Florida Department of Corrections could not immediately provide additional information Monday about Williams or why he had been sentenced to prison. The state agency initiated an investigation into the alleged abused and later turned it over to federal authorities, according to the DOC.
Tillis resigned from the DOC in 2008, the DOJ reported.
Staff writer
Published: Monday, July 6, 2009 at 6:34 p.m.
Last Modified: Monday, July 6, 2009 at 6:34 p.m.
A former Florida State Prison corrections officer, convicted earlier this year of throwing scalding water on an inmate, was sentenced Monday to three years in prison in a federal court in Jacksonville, the U.S. Department of Justice reported.
Paul Tillis, 44, had been convicted in January on a federal civil rights charge related to assaulting an inmate, according to the federal agency. His prison sentence will be followed by two years of post-release supervision.
Tillis had been accused of pouring the hot water, which was between 159 and 180 degrees, on inmate Jerry Williams' chest, causing second-degree burns, prosecutors said. The incident occurred in August 2005. At the time, Williams was fabricating a suicide attempt so he could be transferred to a psychological treatment facility, according to the DOJ.
Sentencing guidelines had set a sentence for Tillis ranging from about seven years to nine years in prison.
Tillis' defense had argued for a downward departure, noting he had no prior criminal history and had received regular, positive reviews from his employer during his more than seven years as a corrections officer, court records show. Many of those years he was assigned to the disciplinary confinement wing of the prison, including when the incident occurred.
Numerous letters of support, some from family and others from members of the community, were forwarded to the court before Tillis' sentence, supporting him and asking for leniency, court records show. Some of the letters described Tillis as a family man with children, a "gentle giant" and a "good man who made a gross error in judgment." Among those who wrote letters were Union County Sheriff Jerry Whitehead, Union County Library Director Mary Brown, Lake Butler City Commissioner Brantley Crawford and Lake Butler Mayor Jimmy Beasley. None spoke about the facts of the case but rather about their personal impressions of Tillis.
The Florida Department of Corrections could not immediately provide additional information Monday about Williams or why he had been sentenced to prison. The state agency initiated an investigation into the alleged abused and later turned it over to federal authorities, according to the DOC.
Tillis resigned from the DOC in 2008, the DOJ reported.
Saturday, July 4, 2009
Legal scholar Austin Sarat about the death penalty
Legal scholar Austin Sarat writes,
"State killing is part of a strategy of governance
that makes us fearful and dependent on the illusion of state protection,
that divides rather than unites,
that promises simple solutions to complex problems."
Attorney To Justices: Richard Marek Not A Killer
Jul 1, 2009 5:29 pm US/Eastern
Attorney To Justices: Richard Marek Not A Killer
TALLAHASSEE (CBS4) ―
The Florida Supreme Court heard from the attorney for John Marek, seen here.
The man facing death for the 1983 kidnapping, rape and murder of a Broward woman should be spared, his attorney argued Wednesday, because he didn't kill the woman. The lawyer for Richard John Marek told the Florida Supreme Court that Marek's co-defendent was the actual killer, and urged his client not face death.
The justices previously stayed Marek's scheduled May 13 execution so a new trial judge could hear his appeal, which includes the argument he should get life in prison — the same sentence as co-defendant Raymond Wigley.
Marek, 47, was convicted of the June 1983 kidnapping, rape and strangulation of Adella Marie Simmons, whose body was found in a lifeguard stand on a Broward County beach.
Wigley, who was killed in prison by another inmate in 2000, had driven from Texas to Florida with Marek. They picked up the victim, a 45-year-old administrator at Barry University, on Florida's Turnpike where her car had broken down.
Each claimed the other had killed the woman. Both were separately convicted of first-degree murder but received different sentences.
Marek's appeal is based on new testimony from six witnesses who had been in prison with Wigley.
They said Wigley had confessed in conversations they either had with him or overheard. One witness said Wigley told him he strangled Simmons so she couldn't identify him after he had raped her.
Marek's lawyer, Martin McClain, told the justices the testimony raised enough doubt to require a reduced sentence even if insufficient to prove which man was the killer.
"If it's 50-50 they should get the same sentence," McClain said. "It should be a life sentence for both of them."
The new trial judge rejected that argument June 19.
Assistant Attorney General Carolyn Snurkowski told the justices that other evidence showed Marek was the killer. She got some help from Justice Charles Canady, who reminded her about psychological evidence that portrayed Wigley as a follower rather than a leader and Marek as a dominant personality.
Snurkowski agreed, saying a mental health expert concluded "Wigley was a wimp."
Some of the other justices appeared to have a harder time with the issue.
Justice R. Fred Lewis told Snurkowksi he found McClain's argument compelling. She replied that Wigley's statements in prison were just bragging to make himself look tough.
Snurkowski also argued Marek deserved death no matter who killed Simmons because he was the mastermind.
"It was Marek who did all the talking" when police questioned them, she said.
McClain, though, told the justices there was no evidence either man had planned to kill Simmons when they had picked her up.
The justices did not immediately rule.
McClain also asked for a new trial but later acknowledged he had little hope the high court would overturn Marek's conviction.
Brady claims confirmed in 11 circuit in Derrick Smith
Juan Melendez exonerated in FloridaFrom the 11 circuit court opinion in Derrick Smith
http://www.oranous.com/florida/DerrickSmith/Smith%2011th%20Cir%20Opinion%206-30-09.txt
http://www.oranous.com/florida/DerrickSmith/Smith%2011th%20Cir%20Opinion%206-30-09.pdf
FOR THE ELEVENTH CIRCUIT FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT JUNE 30, 2009 No. 07-14173 THOMAS K. KAHN CLERK D. C. Docket No. 06-01330-CV-EAK-MAP DERRICK TYRONE SMITH, Petitioner-Appellant, versus SECRETARY, DEPARTMENT OF CORRECTIONS, ATTORNEY GENERAL OF THE STATE OF FLORIDA, Respondents-Appellees. Appeal from the United States District Court for the Middle District of Florida (June 30, 2009) Before DUBINA, Chief Judge, CARNES and HULL, Circuit Judges. CARNES, Circuit Judge:
Conclusion :
In conclusion, the district court’s judgment denying the habeas petition is AFFIRMED except as it concerns six Brady claims. Those six Brady claims are the ones enumerated supra at 49 and discussed in Part V. B., supra. As to those six Brady claims the district court’s judgment is VACATED and the case is REMANDED for the limited purpose of having the district court conduct for those six claims a cumulative prejudice analysis as required by the Kyles decision, 514 U.S. at 434, 115 S. Ct. at 1566, and as directed by this opinion. Depending on the outcome of that analysis, the district court should then enter a new judgment either granting or denying the habeas petition. AFFIRMED IN PART, VACATED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.
Florida Supreme Court hears case of condemned South Florida killer
From Broward Circuit CourtFlorida Supreme Court hears case of condemned South Florida killer
By Tonya Alanez South Florida Sun Sentinel
10:44 AM EDT, July 1, 2009
http://www.sun-sentinel.com/news/local/breakingnews/sfl-marek-hearing-bn070109,0,2641225.story
John Richard Marek, 47, during a recent court appearance before Broward Circuit Judge Peter Weinstein. (Lou Toman, File / May 7, 2009)
TALLAHASSEE - The Florida Supreme Court again this morning heard an attorney for a Death Row inmate make a plea for his client's life.
John Richard Marek, 47, is under an active death warrant for the 1983 murder of a woman whose strangled and raped body was found in a Dania Beach lifeguard shack.
Attorney Martin McClain argued that because Marek's co-defendant, Raymond Wigley, received a life sentence for his part in the crime, Marek should as well.
The state's high court in May indefinitely postponed Marek's execution for the slaying of Adela Marie Simmons, 45, a Barry University administrator.
Sentenced to die: Search Florida's death row inmates
Watch the Florida Supreme Court hearing on John Richard Marek (starts at 9 a.m.)
Death penalty: Status of death row inmates and death sentences across the U.S." src="http://www.sun-sentinel.com/media/thumbnails/storylink/2009-05/46796836-08081305.jpg" width=50 height=37> Death penalty: Status of death row inmates and death sentences across the U.S.
Watch the Florida Supreme Court hearing on John Richard Marek (starts at 9 a.m.)
Death penalty: Status of death row inmates and death sentences across the U.S." src="http://www.sun-sentinel.com/media/thumbnails/storylink/2009-05/46796836-08081305.jpg" width=50 height=37> Death penalty: Status of death row inmates and death sentences across the U.S.
Marek and Wigley had picked her up on Florida's Turnpike where her car broke down.
Since the postponement, two Broward Circuit Court judges have held separate hearings and listened to testimony from prison inmates who said Wigley, told them he, not Marek, was the actual strangler.
Wigley was murdered in prison in 2000 while serving his life sentence.
The Broward Circuit judges, Peter Weinstein and Jeffrey Levenson, both rejected the inmates' testimony as hearsay and declined to recommend a new trial or sentencing for Marek.
McClain argued that the testimony from the six inmates should be taken into account."It becomes muddled as to who did what," McClain said.
"If it's fifty-fifty, they [Marek and Wigley] should get the same sentence."
Arguing on behalf of the state, Carolyn Snurkowsi, of the Attorney General's Office, urged the justices to affirm the Broward judges' findings that the new witnesses were not credible.
The record shows, she said, that Marek was the one who approached the victim, did all the talking and offered a ride for help."
Mr. Marek was the more dominant one and nothing, nothing about these six witnesses changes that," Snurkowski said. "Mr. Marek was the one who set the process in motion."
The final say is now up to the Florida Supreme Court.
The transcript from oral argument in John Marek
http://johnmarek.us/legal/09-1080.htm
The following is a real-time transcript taken as closed captioning during the oral argument proceedings, and as such, may contain errors. This service is provided solely for the purpose of assisting those with disabilities and should be used for no other purpose. These are not legal documents, and may not be used as legal authority. This transcript is not an official document of the Florida Supreme Court.
John Marek v. State of Florida
SC09-1080
>> PLEASE RISE.HEAR YE, HEAR YE, HEAR YE.THE SUPREME COURT OF FLORIDA IS NOW IN SESSION.ALL WHO HAVE CAUSE TO PLEA, DRAW NEAR.GIVE ATTENTION AND YOU SHALL BE HEARD.GOD SAVE THIS UNITED STATES, THIS GREAT STATE OF FLORIDA AND THIS HONORABLE COURT.LADIES AND GENTLEMEN, THE FLORIDA SUPREME COMFORT PLEASE BE SEATED.>>
GOOD MORNING AND WELCOME TO THIS SESSION OF THE FLORIDA SUPREME COURT.THE ONLY CASE ON THE COURT'S DOCKET THIS MORNING IS MAREK VERSUS STATE, ARE THE PARTIES READY TO PROCEED? MR. McCLAIN.
>> THANK YOU, PLEASE THE COURT... [INAUDIBLE]. >> PLEASE TALK INTO THE MIC.>> SORRY. USUALLY HAVE -- MY VOICE IS NOT A PROBLEM IN TERMS OF MILDNESS.
THIS IS A APPEAL FROM THE DENIAL OF A -- 38TH DISTRICT MOTION, I WILL FOCUS MY ARGUMENT ON THE NEWLY DISCOVERED EVIDENCE CLAIM WHICH IS THIS FIRST ONE ADDRESSED IN THE BRIEF AND IF THERE ARE ANY QUESTIONS ABOUT ANYTHING ELSE, CERTAINLY I AM WILLING TO ANSWER THEM.
AT THE EVIDENTIARY HEARING THAT OCCURRED ON JUNE 1ST AND 2ND THERE WERE SIX WITNESSES, WHO -- NEWLY DISCOVERED WITNESSES PRESENTED AND OF THOSE, ONE OF WHICH LEON DOUGLAS, THERE ARE ISSUES ABOUT AND THE REMAINING FIVE, THOSE FIVE WITNESSES, I SUBMIT, REQUIRE AT THE VERY LEAST, PENALTY PHASE RELIEF.
AND LET ME EXPLAIN WHY.
FIRST, THE JUDGE IN DENYING HIS FIRST GROUND FOR DENYING RES JUDICATA AND THE WITNESSES DID NOT TESTIFY AT ANY PREVIOUS PROCEEDINGS AND I SUBMIT THAT THAT WAS WRONG ANALYSIS TO HAVE RES JUDICATA AND IN TERMS OF THE QUESTION OF DILIGENCE, THE TESTIMONY PRESENTED WAS IN 2001, WHEN MR. WIGLEY WAS MURDERED, IN PRISON,
THERE WAS AN EFFORT MADE TO MAKE UP A LIST OF PEOPLE IN PRISON AND OUT OF PRISON, WHO WIGLEY MAY HAVE CONFIDED IN, JUST TO SEE IF THERE WAS ANYBODY OUT THERE AND -->> AND THIS WAS DONE WHEN. >> 2001.
IT WAS AT THE TIME OF THE -- THE COURT DECIDED TO TAKE THE -- WHERE THE COURT RECOGNIZED, NEWLY DISCOVERED EVIDENCE WARRANTED A -- ACTUALLY PENALTY PHASE RELIEF FOR MR. MILLS WHICH ULTIMATELY LED TO A LIFE SENTENCE AN ON THE BASIS OF A STATEMENT MR. MILLS MADE WHILE INCARCERATED IN JAIL, A, WAIT -- AWAITING MR. MILLS' TRIAL FOR THE CODEFENDANT, ANDERSON ASH LIMIT
AND SO IT WAS A SHOT IN THE DARK TO CHECK AND SEE IF THERE WAS ANYTHING OUT THERE AND ALL OF THE PEOPLE THAT WERE TALKED TO HAD NO INFORMATION, AND TWO INDIVIDUALS WHOSE NAMES WERE ON THE LIST BECOME SIGNIFICANT BECAUSE THEY ARE WITNESSES NOW AND ONE OF THE INDIVIDUALS, ROBERT PEARSON, AND ROBERT PEARSON, WHO DID TESTIFY ON JUNE 1ST, WAS ON THE LIST IN 2001, HE WAS CONTACTED IN 2001, AND AT THAT TIME, INDICATED HE DID NOT WANTED TO TALK, DID NOT WANTED TO GET INVOLVED, BOTH MS. MCDERMOTT TESTIFIED REGARDING THAT AND MR. PEARSON TESTIFIED, HE REFUSED TO GET INVOLVED
AND THE OTHER PERSON'S NAME ON THE LIST WAS MICHAEL CONLEY AND THERE WAS BE A EFFORT MADE TO LOCATE HIM AND DOC RECORDS INDICATED HE WAS GOOD FRIENDS WITH MR. WIGLEY AND HE WAS RELEASED FROM PRISON AND EFFORTS WERE MADE TO CONTACT HIM AND THERE WAS A LEAD TO SOMEBODY IN BROWARD COUNTY AND TURNS OUT ACCORDING TO MR. CONWAY IT WAS A FAMILY MEMBER OF HIS AND HE HAD GONE THROUGH A DIVORCE, HE WAS CONCERNED ABOUT HIS WIFE, OR PEOPLE ON BEHALF OF HIS WIFE, CONTACTING HIM, HIS FAMILY MEMBER INDICATED TO MR. CONLEY THAT HE'S GIVING THAT INFORMATION AND BASICALLY SHUT IT DOWN
AND IN FACT, MS. MCDERMOTT TESTIFIED TO, AS THE INVESTIGATOR, WENT OUT AN ATTEMPTED TO CONTACT HIM AND RAN INTO THE BROTHER IN BROWARD COUNTY AND HAS NOT BEEN ABLE TO LOCATE HIM.
AS TO THE OTHER INDIVIDUALS, WHO TESTIFIED, IN 2009, THEY WERE NOT KNOWN, THEY DIDN'T GET ON THE LIST, AGAIN, THE LIST IN 2001, WAS BASICALLY A SHOT IN THE DARK, HAIL MARY PASS KIND OF THING.
>> I -- SINCE YOUR TIME IS LIMITED, LET'S ASSUME WE AGREE WITH YOU THAT DUE DILIGENCE WAS... AND YOU HAVE NOW FOCUSED ON THE PENALTY PHASE. >> YES. >>
WHAT DO YOU THINK THAT THIS EVIDENCE IS ADMISSIBLE IN THE PENALTY PHASE, HEARSAY... [INAUDIBLE] A DIFFERENT STORY.
WHAT -- HOW WOULD THAT PROBABLY PRODUCE A LIFE SENTENCE, BECAUSE THAT IS REALLY THE TEST, FOR NEWLY DISCOVERED EVIDENCE IS, WOULD IT PROBABLY PRODUCE A LESS SENTENCE.
>> WELL, FIRST, ONE PLACE TO LOOK IS MR. MOLDOF WHO TESTIFIED JUNE 2ND AND HOW THE STATEMENTS IMPACTED HIM AND WHAT HE WOULD HAVE DONE IN TERMS OF THE PENALTY PHASE AND IN 1984, ONE OF THE ISSUES THAT HAPPENED WAS IN REFERENCE TO HIS DECISION NOT TO PRESENTS THE LIFE SENTENCE MR. WIGLEY RECEIVED AND THE TIME IN 1984 HE EXPLAINED IT WAS BECAUSE THE JUDGE WOULD ALLOW THE STATE TO BRING OUT THE FACT THAT WIGLEY HAD MADE A STATEMENT TO THE POLICE IN WHICH WIGLEY PUT ALL OF THE BLAME ON MR. MAREK.
>> YOU AGREE IF THIS EVIDENCE WERE TO COME IN, AND -- IN AT LEAST THE PENALTY PHASE, WIGLEY'S CONFESSION WOULD -->> YES. AND MR. MOLDOF, HAD NO PROBLEM WITH THAT AND WOULD HAVE PRESENTED THIS
AND HE THOUGHT THAT A STATEMENT AFTER THE CRIME TO THE POLICE, WAS, HE CERTAINLY WOULD ARGUE, WOULD BE SELF-SERVING VERSUS CONSISTENT STATEMENTS MADE TO INDIVIDUALS HE WAS INCARCERATED WITH, AND, HE WOULD HAVE NO PROBLEM PURSUING THAT.
>> I GUESS -- YOU ARE SAYING, WELL, THE LAWYER WOULD ACT DIFFERENTLY.BUT, IN TERMS OF THE AGGRAVATOR AND THE MITIGATOR, I UNDERSTAND WE CAN LOOK AT WHETHER YOUR CULPABLE DEFT RECEIVED A LIFE SENTENCE, IT JUST DOESN'T LOOK LIKE THAT SITUATION.WHAT COULD A JURY -- WHAT MITIGATOR WOULD THIS GO THROUGH OR WHAT AGGRAVATOR, WOULD IT CHANGE?
Y -- YOU SEE, I UNDERSTAND YOU HAVE PRESENTED INTERESTING TESTIMONY BUT WHERE WOULD IT FIT IN IN A NEW PENALTY PHASE AND GIVE ME YOUR BEST SHOT,
IT WOULDN'T CHANGE THE AGGRAVATORS AND WHAT MITIGATORS WOULD IT GO TO.
>> FIRST OF ALL, IT WOULD HAVE LED MR. MOLDOF TO PRESENT THE LIFE SENTENCE, WHICH WAS NOT PRESENTED BEFORE AND THAT HAS BEEN RECOGNIZED, A LIFE SENTENCE, AS A MITIGATING CIRCUMSTANCE AND, SECOND, IT WOULD HAVE GONE TO REDUCE MR. MAREK'S ROLE,
IN THE COURT, ON DIRECT APPEAL FOUND THAT HE WAS THE DOMINANT INDIVIDUAL.THIS WOULD HAVE GONE TO NEGATE THAT.
>> IF WE -- I'M SORRY. .>> YOU DO RECOGNIZE THAT NOT ONLY WAS THE DEFENSE COUNSEL... HAVE BEEN CHANGED AND THE STATE WOULD HAVE DONE THINGS DIFFERENTLY THAN THEY WOULD HAVE AND WOULD HAVE BEEN ABLE TO BRING IN THINGS LIKE THE CONFESSION AND PSYCHOLOGICAL INFORMATION, THAT INDICATED THAT MR. WIGLEY WAS A FOLLOWER, NOT A LEADER.AND THINGS THAT WOULD TEND TO UNDERMINE THIS NEWLY DISCOVERED EVIDENCE, ISN'T THAT CORRECT.
>> MR. MOLDOF TESTIFIED AS TO THE MENTAL HEALTH EVALUATIONS, MENTAL HEALTH EVALUATIONS WERE DONE SOLELY ON SELF-REPORTING OF MR. WIGLEY AND THERE IS FIRST A QUESTION OF WHAT ONES WOULD HAVE BEEN ADMISSIBLE AND SECOND, THE EXPERTS DIDN'T HAVE THESE STATEMENTS MADE IN PRISON.WHICH SUGGESTS THAT MR. WIGLEY WAS IN FACT NOT A FOLLOWER.AND THE CONCLUSION
-->> BUT, ALSO, I MEAN, WHEN YOU LOOK AT THESE STATEMENTS, IN CONTEXT, ISN'T IT LIKELY THAT A JURY WOULD VIEW THESE THINGS INCONSISTENT AS THEY WERE, VARIABLE AS THEY WERE AS MOST LIKELY AND EXERCISE IN BRAGGING, AND SELF-PROTECTION.IN TRYING TO PROJECT AN IMAGE OF TOUGHNESS, IN ORDER TO AVOID SOME TROUBLES IN PRISON.
>> FOR EXAMPLE, MR. PEARSON IN PARTICULAR, HIS TESTIMONY WAS QUITE COMPELLING AND HE INDICATED, MR. PEARSON INDICATED THAT MR. WIGLEY... VARIED OVER TIME AND THE ONLY THING THAT VARIED WAS MR. WIGLEY'S MEMORY WHEN HE WAS ALONE WITH THE VICTIM IN THE SHACK, AS TO WHETHER OR NOT HE REMEMBERS KILLING HER OR SIMPLY REMEMBERS WAKING UP AND SHE WAS DEAD AND ALL OF HIS VERSIONS, MR. MAREK WAS OUT IN THE TRUCK, NOT INVOLVED. >> BUT THERE IS WHERE THE EVIDENCE THAT I GUESS TO ME HAS BEEN VERY COMPELLING, ABOUT MR. MAREK'S FINGERPRINTS BEING THE ONLY FINGER PRINT FOUND IN THE SHACK WHERE THE BODY WAS FOUND.SO THE IDEA THAT IT WAS MAREK THAT WAS OUTSIDE AND PLAYED AN INSIGNIFICANT ROLE IS CONTRADICTED BY THE PHYSICAL EVIDENCE. I MEAN, IF YOU DIDN'T HAVE THAT PHYSICAL EVIDENCE, AND PLUS YOU STILL -- THERE IS NOTHING THAT HAS CHANGED THE FACT THAT THIS COURT RELIED ON, THAT THE TWO -- SURVIVING -- THE PASSENGER, DID NOT ULTIMATELY GO, SAID IT WAS MR. MAREK THAT DID ALL THE TALKING AND THE POLICE OFFICER AFTERWARDS SAID IT WAS MR. MAREK THAT DID ALL THE TALKING, NOT MR. WIGLEY AND THAT DOESN'T DISAPPEAR, DOES NIGHT IT DOESN'T, BUT, CERTAINLY IT IS WORTH NOTING IN MR. WIGLEY'S TRIAL THAT WAS NOT PORTRAYED AS OMINOUS AND IT WAS LESS OMINOUS AND HE WAS THE TALKER AND THAT WAS PURSUANT TO AN AGREEMENT WITH MR. WIGLEY,
I THINK THE BOTTOM LINE, THOUGH, IS, IF YOU HAVE CONFLICTING EVIDENCE, IT ALL SORT OF NEGATES
AND WHAT YOU END UP HAVING IS THE DISPARITY IN THE TREATMENT OF THESE TWO INDIVIDUALS.WHICH IS WHAT CALLS FOR THE LIFE SENTENCE.
I MEAN, YOU COULD HAVE DOUBTS AS TO WHICH OF WIGLEY'S STATEMENTS TO BELIEVE, BUT, CLEARLY, THERE IS MORE GOING ON HERE, AND -
->> IT IS INTERESTING, THE ARGUMENT FOR THIS PENALTY PHASE, YOU ARE NOT SAYING THAT THIS COURT, BASED NOW ON THE NEWLY DISCOVERED EVIDENCE, NOW PRODUCED MAREK'S SENTENCE, THE LIFE SENTENCE, ARE YOU.
>> CERTAINLY, THAT... I MAKE A NUMBER OF ARGUMENTS, AND I SAY UNDER NEWLY DISCOVERED EVIDENCE, AND THESE CIRCUMSTANCES, IT IS NOT JUST A QUESTION OF WHETHER IT WOULD HAVE MADE A DIFFERENCE TO THE JURY,
IN ABRAM SCOTT IT WOULD HAVE MADE A DIFFERENCE TO THE SENTENCING JUDGE AND SHE SAID SHE WOULD HAVE IMPOSED LIFE AND IT SHOULD HAVE BEEN LOOK AT AS HOW IT WOULD AFFECT THE COURT ON DIRECT APPEAL.
>> WHAT
-->> ABRAM SCOTT SKIES, JUDGE SCHAEFFER INDICATED, BEFORE SHE RECUSED HELPFUL HAD SHE KNOWN OF THE LIFE NOTICE FOR THE CODEFENDANT.
>> BUT THAT IS NOT THIS CASE.
>> BUT IS AN EXAMPLE OF HOW IT HAS TO BE EVALUATED.NOT JUST WHAT HAPPENED IN FRONT OF THE E JURY, BUT HOW IT COULD HAVE IMPACTED
-->> WE DON'T HAVE THE ORIGINAL JUDGE HERE BUT THE JUDGE DIDN'T EVEN FIND THE WITNESSES TO BE CREDIBLE. >> CORRECT.BUT, WHAT THE JUDGE DID DO IN 1988 IS STRUCK AN AGGRAVATING CIRCUMSTANCE AND SAID IT WAS HARMLESS MERELY BECAUSE THERE WAS NO MITIGATION.AND, THAT DECISION WOULD NOT BE SUSTAINABLE, HAD THE LIFE SENTENCE FOR THE CODEFENDANT BEEN IN THE RECORD.WHEN STRIKING AN AG AND IF THERE IS MITIGATION THAT COULD HAVE PROVIDED THE BASIS FOR A LIFE SENTENCE AND THE JUDGE, AT THE TIME OF THE TRIAL, INDICATED DURING THE INSTRUCTION CONFERENCE, THAT IN THE CASE, THERE WAS NO WAY THAT HE COULD OVERRIDE A JURY RECOMMEND DIGS OF LIFE, AND SO THAT WAS ONE OF THE REASONS WHY HE TOLD MR. MOLDOF, TRYING TO PERSUADE -- SWAY THE JURY WITH THE LIFE SENTENCE STUFF I'LL ALLOW THE PROSECUTION TO GET INTO WIGLEY'S CONFESSION, SO MY POINT. >> THAT THIS COURT HAS TO NOT JUST LOOK AT THE JURY, THE TRIAL JUDGE, BUT ALSO, THIS COURT ON DIRECT APPEAL AND IN POST-CONVICTION
-->> WHEN YOU LOOK AT ALL OF THOSE THINGS AND YOU LOOK AT THE CIRCUMSTANCES OF HOW -- WHERE THESE STATEMENTS WERE MADE, I MEAN, YOU HAVE THE SITUATION WHERE ONE OF THE PEOPLE SAYING, BASICALLY, THAT THIS -- MR. WIGLEY IS REALLY A WIMP AND HAS HE WAS -- BRAGGING ABOUT THIS AND ANOTHER ONE WHO SAID THAT BASICALLY HE SAID HE DIDN'T DO IT, OR WHEN THE GUY INDICATED HE WOULDN'T GIVE HIM ANY HELP, HE CHANGED HIS STORY AND SAID HE DID DO IT.AND ANOTHER ONE SAYS THAT, YOU KNOW, I DIDN'T REALLY BELIEVE THESE STATEMENTS THAT HE WAS MAKING, AND SO, WHEN A JURY -- THE JURY AND THE JUDGE EVEN THE COURT LOOK AT ALL OF THESE CIRCUMSTANCES, SURROUNDING THE MAKING OF THESE VARIOUS STATEMENTS, IT REALLY SEEMS A VERY DIFFICULT TASK FOR ME TO SAY, ANYWAY, THAT THIS WOULD HAVE TRULY MADE, PROBABLY MADE A DIFFERENCE IN THE SENTENCING.AND, I -- THE CONTEXT OF THESE STATEMENTS, REALLY IS WHAT PERSUADES ME THAT THIS REALLY WOULD NOT HAVE MADE A DIFFERENCE.
>> FIRST I WOULD LIKE TO POINT OUT THAT THE PROSECUTION ON JUNE 2ND, EXILE EXAMINING MS. MCDERMOTT MADE THE POINT THAT, HOW MR. WIGLEY'S BODY IN FACT WAS FOUND.WAS SO STRIKINGLY SIMILAR TO THE VICTIM IN THIS CASE, THEY -- THE STATE'S ARGUMENT WAS THAT THAT WOULD SUGGEST THAT THERE WAS A CONNECTION.BECAUSE, MISBAIL
-->> HOW HIS BODY AS FOUND. >> NAKED WITH A RED BANDANNA AROUND HIS NEXT. >> THE CIRCUMSTANCES OF THIS CASE HAS BEEN BANTERED ABOUT FOR YEARS AND I'M NOT SURE HOW THAT HELPS IN THIS SITUATION.
>> WELL, I MEAN, I THINK HER POINT WAS, BECAUSE OF THE SIMILARITY IN HOW THE BODY WAS FOUND, IT WOULD SUGGEST THAT MR. WIGLEY'S BOYFRIEND, WHO MURDERED HIM, HAD DONE TO HIM WHAT HAD BEEN DONE -- HE HAD DONE TO SOMEONE ELSE.AND I THINK THAT THAT WAS WHAT THE STATE'S POINT WAS.
BUT, ULTIMATELY, THERE IS NO QUESTION THAT THIS COURT IN 1988, WOULD HAVE HAD TO REVERSE WHEN AN AGGRAVATOR WAS STRUCK. AND THE JURY IN THIS CASE WAS GIVEN FOUR AGGRAVATORS AND THE JUDGE FOUND FOUR AGGRAVATORS AND IN 1988 ONE OF THOSE WAS STRUCK, AT THE TIME,
IN 1984, THE MITIGATION WAS SIMPLY A GUARD FROM THE JAIL, TESTIFYING, AS TO HIS -- MR. MAREK'S CONDUCT IN JAIL AND HE HAD SHOWN REMORSE AND THE PROSECUTION TURNED AROUND AND SAID REMORSE WAS SIMPLY THAT HE WAS CAUGHT, NOT THAT HE WAS REALLY REMORSEFUL.
IN ANY EVENT, I BELIEVE THAT THE FACT THAT IT BECOMES MUDDLED, AS TO WHO DID WHAT, IS PRECISELY WHAT THIS COURT HAS INDICATED REQUIRES THE -- THAT THEY BE TREATED THE SAME AND WOULD REQUIRE A LIFE SENTENCE FOR MR. MAREK.
>> YOU ARE WELL INTO YOUR REBUTTAL.
>> I WILL
-->> IF YOU WANT TO SAVE ANY TIME.
>> I WILL SAVE THE REMAINING TIME. >> ALL RIGHT.
>> I'M CAROLYN SNURKOWSKI FROM THE ATTORNEY GENERAL'S OFFICE, JUDGE LEVINSON WHO HEARD THE JUNE 1ST, 2009 HEARING WAS NOT THE TRIAL AND IT WAS A CONFUSION WITH REGARD TO WHAT HE -- HE HAD TO LOOK AT THE TOTAL CASE AFRESH AND REVIEWED THE RECORDS AND HIS ASSESSMENT OF THE RECORD IS BASED ON TRANSCRIPTS, TESTIMONY, PRESENTED FOR HIM, AND THE ARGUMENTS THAT WERE MADE BY COUNSEL, BEFORE HIM, AND, HE MADE ASSESSMENTS THAT THE WITNESSES WERE NOT CREDIBLE AND I WOULD LIKE TO STEP BACK A LITTLE BIT, BECAUSE, AS WELL, I FULLY APPRECIATE THAT I -- THESE WITNESSES DID NOT -- WERE NOT COMPELLING, WOULD NOT CHANGE THEOUT COME, AND PROBABLY WOULD NOT CHANGE THE OUTCOME WITH REGARD TO A NEW PENALTY PHASE OR YOU CAN EVEN GET TO A PENALTY PHASE THE STATE WOULD SUBMIT IT IS A RARE CASE WHERE THIS TRIAL COURT IN FACT FOUND NO DUE DILIGENCE, AND IT IS SUPPORTED BY THE RECORD, IT IS SUPPORTED BY THE TESTIMONY THAT WAS PRESENTED AT TRIAL BY DEFENSE COUNSEL, WITH REGARD TO WHAT ACTION THEY UNDERTOOK AND IN THIS CASE IT POINTS TO THE FACT THAT WE HAVE A TARGET DATE.WE KNOW THAT MR. WIGLEY DIED, HE WAS KILLED MAY 6TH, 2000 AND AT THAT TIME, DEFENSE COUNSEL FOR MR. MAREK WAS ENGAGING IN LITIGATION AND AT THAT TIME, RIGHT AFTERWARDS, IN FACT, WITHIN A YEAR, OF THAT, THEY SECURED INFORMATION FROM DOC AND THE STATE ATTORNEY'S OFFICE AND -- WHO PROSECUTED THE CASE AND OTHER COURSES -- GOVERNMENT AGENCIES WITH REGARD TO INFORMATION CONCERNING MR. WIGLEY AND MR. MAREK.MR. WIGLEY IN PARTICULAR, ABOUT MR. MAREK. AND WHAT THEY FOUND OUT, AND WHAT THE ALLEGATION WAS, IF YOU LOOK BACK AT THE HISTORY OF THIS CASE, THE 9TH CLAIM IN THAT CASE HAD TO DO WITH -- THE CULPA ABILITY OF THE PARTIES, WITH REGARD TO MAREK, AND WIGLEY AND AT THAT TIME, THEY WERE PRESENTING AND TRYING TO SECURE EVIDENCE THAT SHOWED THAT THE HISTORY, WIGLEY'S HISTORY, DEMONSTRATED THAT HE WAS A MORE CULPABLE -- AND HE WAS NOT A LESSER DOMINATING PERSON OR HE WAS NOT THE LESSER PERSON, EQUALLY OR MORE DOMINANT TYPE OF PERSONALITY.AND, FAILED AT THAT.BUT, IN DOING THAT, THEY WERE INVESTIGATING THIS EVIDENCE, THEY SECURED THE NAMES, THEY MADE CONSCIENTIOUS DECISIONS WITH REGARD TO SECURING WHAT NAMES THEY FOUND, AND CALLING THROUGH THAT -- COMING THROUGH THE LIST AND FINDING OUT WHO WAY WOULD SECURE AND MR. BANTERMAN WAS ON THE LIST AND THEY DISCOUNTED HIM AND HE COMES LATER ON IN 2009. >> HOW MANY OF THESE -- I BELIEVE THERE WERE 6 PEOPLE WHO TESTIFIED -->> THAT'S CORRECT, YOUR HONOR. >> AT THE EVIDENTIARY HEARING.HOW MANY OF THOSE NAMES WERE IN FACT DISCOVERED AND TALKED TO AT POINTS. >> WE KNOW AT LEAST THREE OF THOSE INDIVIDUALS WERE ON THE LIST, BECAUSE MR. MCDERMOTT ACKNOWLEDGED THAT AND THE OTHERS COULD OR COULD NOT HAVE BEEN ON BUT THEY WERE THE RAPID TRAIL THAT LED TO THE OTHER INDIVIDUALS, LIKE MR. MITCHELL, I BELIEVE, SAID,... MR. MITCHELL LED THEM TO AN INDIVIDUAL MR. CLARK, AND MR. CLARK LED THEM TO LEON DOUGLAS, AND I MEAN, IT WAS -- THERE WAS -- THE AVAILABLE EVIDENCE WAS THERE, AND DUE DILIGENCE DOES REQUIRE EFFORT ON THE PART OF THE LAWYER AND THE LAWYER DOESN'T SAY I GET A PASS BECAUSE I WAS UNSUCCESSFUL AND YOU TRY AND AT THIS POINT IN TIME IT WAS NOT A TIME WHEN NOTHING WAS GOING ON, THEY WERE ACTUALLY LOOKING FOR CLAIMS, WITH REGARD TO CHALLENGING THE CULPABILITY OF THE INDIVIDUALS WITH REGARD TO THE CRIME AND AS I SAID THIS IS ONE OF THOSE CASES WHERE WE DO HAVE A FAILURE TO PERFORM DUE DILIGENCE AND THE TRIAL COURT WHO LOOKED AT THE CASE -->> EVERY TIME WE HAVE ONE OF THESE CASES, THIS IS AN ISSUE THAT COMES ABOUT BUT WHEN THERE ARE NEW STATEMENTS THAT COME ABOUT WE WIND UP CHASING OUR TAILS, BECAUSE THEY TALKED TO SOMEONE AND THEY DIDN'T SAY BACK THEN WHEN THEY ARE SAYING NOW AND THOSE ARE THE DIFFICULT THINGS WE MUST, MUST WRESTLE WITH AND I FIND IT DIFFICULT AND THIN TO RULE ON A CASE LIKE THIS ON A DUE DILIGENCE WHEN THERE ARE STRONGER REASONS IN EXISTENCE THAT WOULD TAKE US BEYOND THAT.>> AND I -->> I SEE PROBLEMS, HERE, QUITE HONESTLY WITH, YOU KNOW, IN MY VIEW WITH SOME OF THE THINGS THAT OCCURRED DURING THE HEARING, AND THOSE KINDS OF THINGS.BUT, IT IS THE ULTIMATE, I THINK JUSTICE PARIENTE HIT ON THAT IS REALLY THE HEART OF WHAT THIS CASE IS ABOUT.I MEAN... >> AND I DON'T DISAGREE, YOUR HONOR, I UNDERSTAND THAT BUT I THINK IT IS IMPORTANT BECAUSE WE HAVE A TRIAL COURT WHO CAME IN THE CASE, NEW, AND FOUND -- MADE THAT GLARING DETERMINATION, THERE WAS NOT DUE DILIGENCE, AFTER HEARING THE EVIDENCE. >> AGAIN, I DON'T KNOW THAT THAT IS SUPPORTED, AND AS I LOOK AT THE RECORD I DON'T KNOW THAT THAT IS A FINDING, BECAUSE IT IS A FINDING IS REALLY SUPPORTED WHEN YOU LOOK AT THE WHOLE SCHEME OF THESE KINDS OF CASES THAT COME BEFORE US BECAUSE THIS IS ALWAYS AN ISSUE THE STATE WANTS TO GRAB TO, THIS IS THE ONLY ISSUE IN THE CASE. >> BUT, I DON'T -->> I WOULD, WOULD HOME YOU WOULD ADDRESS SOME OF THE OTHER ONES.RATHER THAN JUST HANG ON THAT POINT.PARTICULARLY, THE QUESTION OF JUSTICE -- THE QUESTION JUSTICE PARIENTE RAISES AND THE RESPONSE MR. McCLAIN PROVIDED TO US, HE HAS MADE A COMPELLING ARGUMENT, ONE PERSON IS RECEIVING A LIFE PENALTY AND THESE ARE THINGS THAT OUGHT TO BE REWEIGHED AND REEVALUATED.>> WELL, IN FACT IF YOU LOOK AT MR. CONLEY, GO TO THE WITNESS WHOSE TESTIFIED, HE TESTIFIED THAT HE THOUGHT FOR EXAMPLE THAT ALTHOUGH WIGLEY WAS TELLING HIM THIS, IT WAS FOR A REASON AND THE REASON WAS HE WANTED HIS -- MR. CONLEY'S WIFE TO HELP WIG L WITH REGARD TO HIS POST-CONVICTION LITIGATION, AND MR. BANTERMAN, HAS -- HIS TESTIMONY REFLECTS THAT MR. WIGLEY WAS BOASTING WITH REGARD TO HIS COMMENTS ABOUT HOW HE KILLED SOMEBODY.IF YOU LOOK THE AT MR. PEARSON -->> GO BACK TO MR. CONLEY, HE DID NOT TESTIFY AGAIN. >> HE DID NOT.HE WAS ILL AND COULD NOT COME BACK.>> HE STRUCK ME, IN TERMS OF -- OF COURSE WE DIDN'T SEE HIM, BUT HIS TESTIMONY IS CLEAR TO ME THAT HE HAD A FEELING THAT MR. WIGLEY... TELLING THE TRUTH.NOW, LET'S ASSUME THAT WIGLEY DID STRANGLE THE VICTIM.AND THAT THIS IS -- SEEMS TO BE CONSISTENCY THAT MIGHT MAKE THAT, YOU KNOW, A POSSIBLE THING, THAT IS, THAT IT WAS WIGLEY THAT ACTUALLY DID THE STRANGLING AND THEY BOTH MAY HAVE HAD SEXUAL RELATIONS.DOES THAT CHANGE THE RELATIVE CULPABILITY MIX, IN OTHER WORDS, IF WE LOOK AT THE SUM TOTAL AND SAY, YOU KNOW WHAT? LOOKS LIKE WIGLEY MAY HAVE BEEN THE PERSON WHO DID THE STRANGLING AND HE GOT THE LIFE SENTENCE, HOW DOES THAT AFFECT THE... >> I DON'T THINK IT CHANGES, IF YOU ARE ASKING ME, THE LIKELY PROBABILITY AND THE ANSWER IS NO AND THE REASON FOR THAT IS -- EXCUSE ME -- A NUMBER OF REASONS, FIRST OF ALL, MR. MAREK TOOK THE STAND IN HIS TRIAL, AND SAID HE WASN'T THERE.AND THE JURY HEARD THAT, AND, ALSO, HEARD MR. MAREK ADMITTED THAT HE WAS THE ONE THAT STARTED US OFF ON THE TREK AND HE WAS THE ONE THAT INVITED THE VICTIM TO -- HE WAS GOING TO HELP HER AND HE WAS THE ONE -- EXCUSE ME, MR. MAREK'S OWN LIPS, WE HEAR THAT HE IS THE PERSON WHO IS TAKING PART IN SETTING IS ALL IN MOTION. >> LET'S -- IN TERMS OF THAT YOU HAVE TWO MEN AND THEY HAVE STOPPED FOR PEOPLE THAT ARE BY THE SIDE OF THE ROAD, AND THOSE TWO MEN, THEY -- IS IT NOT LIKELY THAT THE DISCUSSION OCCURRED BEFORE HANDLED, WHAT THEY WERE GOING TO DO? I MEAN, YOU KNOW WHAT I'M SAYING? ANY SUGGESTION MR. MAREK HAS DECIDED ON HIS OWN, TO GO OFF ON THE PLAN, AND THAT SOMEHOW HE DRUGS WIGLEY TO GO ALONG WITH HIM. >> THAT IS NOT THE PLAN, THE PLAN IS THEY ARE DRIVING DONE THE HIGH WA AND COMING INTO FLORIDA AND HAVING A GOOD TIME, AND SEE THIS CAR AND STOP, AND RENTEDER -- TO RENDER ASSISTANCE AND MR. MAREK SAYS I'LL HELP YOU, BECAUSE SHE'S LOOKING FOR ASSISTANCE. >> BECAUSE HE IS DOING THE TALKING, HOW DOES IT MAKE THE OTHER PERSON NOT CULPABLE EQUALLY FOR WHAT HAPPENED. >> THIS COURT ON DIRECT APPEAL REVIEWED THE RECORD AND DETERMINED THAT ALONG THE WAY, WHAT MR. MAREK SAID TO THE JURY WAS FOUND TO BE CORRECT.BECAUSE, OTHER WITNESSES SAID THE SAME THING.JEAN TRACK TESTIFIED THAT SHE WAS SURVIVING -- THE SURVIVING INDIVIDUAL AND TESTIFIED MAREK SPOKE TO HER AND MAREK CAME TO THE CAR AND MAREK WHO SUGGESTED ONE OF THEM GO, AND, IT WAS THE VICTIM WHO SAID -- ASKED JEAN TO GO, AND SHE WAS AFRAID.AND SO, THE VICTIM WENT.IT WAS MAREK WHO AFTER THE MURDER ALMOST IMMEDIATELY AFTER THE MURDER WAS TALKING TO POLICE OFFICERS, AND TALKING ABOUT WHY WE'RE THERE AND HE WAS THERE, AND HE WAS IN FLORIDA, AND -- BECAUSE HE WAS LOOKING FOR COLLEGE FRIENDS.IT WAS MAREK WHO DID ALL OF THE TALKING.YOU DON'T HAVE ANY TESTIMONY, IN THE RECORD TO REFLECT OTHERWISE.AND, THE AT THE TRIAL, MAREK'S TRIAL WHILE THERE WAS A ISSUE MANY MOONS AGO WITH REGARD TO WHO, WHETHER THERE WAS A -- DISPARATE DETERMINATION AS TO WHO WAS THE ACTUAL KILLER, THE BOTTOM LINE WAS, THAT THERE WAS NOT, THE STATE IN THIS PARTICULAR CASE, MAREK'S CASE, SAID, I DON'T CARE HOW YOU DECIDE IT, WHATEVER YOU FIND MR. MAREK'S -- WHAT HE ACTUALLY DID THE MURDER OR HELPED IN THE MURDER OR WHAT HE DID, IT IS STILL FIRST DEGREE MURDER AND THAT IS WHAT HE WAS CONVICTED OF, MR. WIGLEY WAS CONVICTED OF FIRST DEGREE MURDER, ALSO, AND GOT A LIFE SENTENCE. >> AND THAT IS ALL, I THINK, I DON'T THINK, ANYTHING CHANGES THAT MR. MAREK GUILTY OF -- MAKES HIM GUILTY OF FIRST DEGREE MURDER, I GUESS THE ONLY -- WHAT WE WERE FOCUSING ON IS OUR JURISPRUDENCE THAT DEALS WITH AN EQUALLY CULPABLE PERSON, TO GET A LIFE SENTENCE, AND OTHER PORTIONALITY, IN FAIRNESS, TO THE SYSTEM, SO THAT THERE IS CREDIBILITY IN THE SYSTEM, THAT THE CODEFENDANT SHOULD ALSO GET A LIFE SENTENCE AND I THOUGHT THAT WAS THE ONLY ISSUE. >> THAT IS CORRECT BUT THERE IS NOTHING IN THE RECORD THAT CHANGED BASED ON THE VICTIMS. >> AND I GUESS THE QUESTION I ASKED WAS, IF IT WAS MR. WIGLEY THAT DID -- STRANGLED THE VICTIM, AND THAT YOU SAY THAT DOESN'T CHANGE THE CALCULUS OF THE WAY THE COURT WOULD LOOK AT THE CASE. >> FIRST OF ALL, I DON'T THINK YOU EVER FIND THAT, WE CAN THE NOT MAKE THE DETERMINATION BUT ASSUME FOR THE MOMENT WE PRESENT THE EVIDENCE WITH REGARD TO THE WITNESSES, THEY CAME IN.FIRST OF ALL, THEY HAVE TO BE TAKEN IN CONTEXT AND THE COURT RECOGNIZES THAT, AND AS I WAS GOING THROUGH THE SCENARIO OF ALL OF THESE WITNESSES EACH ONE OF THEM THAT'S A PROBLEM WITH REGARD TO THEIR CREDIBILITY, OR THEIR BELIEVEABILITY OR THE KIND OF STORY THEY ARE TELLING, BECAUSE ALL OF THE STORIES ARE DIFFERENT AND NOT THE SAME BUT, SECOND OF ALL, WE HAVE A DETERMINATION THAT, BY THAT COURT AND ALL THE COURTS THAT LOOKED AT THE CASE, THAT, IN FACT, MR. MAREK WAS THE MORE DOMINANT ONE AND NOTHING -- NOTHING -- ABOUT THE SIX WITNESSES CHANGED THAT, AND PLUS, NOW WE KNOW, NOW WE HAVE A CASE THAT IS BEFORE THE COURT -->> YES, THERE IS A DIFFERENCE AND THAT IS WHAT WE ARE TRYING TO GET TO THE BOTTOM LINE.AND THAT IS, IF WIGLEY WAS THE -- PERFORMED THE ACTUAL STRANGULATION, I THINK THAT IS THE BOTTOM LINE QUESTION.BEING PROPOUNDED, WOULD YOU RESPOND TO THAT. >> AND I'M -->> IF IT WERE FOUND -->> SURE. >> THAT MR. WIGLEY WAS ACTUALLY THE PERSON WHO COMMITTED THE STRANGULATION, WHAT HAPPENS THEN. >> I THINK AGAIN, THIS IS LIKE OTHER CASES, WHERE THE COURT HELD IT IS A MORE DOMINANT REACTION AND LAVALIER, SHE ASKED HER SON AND HE WAS ACQUITTED AND HE APPARENTLY DID THE MURDER BUT HE WAS ACQUITTED AND THE MORE DOMINANT PERSON IS ENTITLED TO GET -- AND THE COURT HELD, A NUMBER OF CASES OUT THERE, WALTON, A NUMBER OF CASES, STEIN, A NUMBER OF CASES THAT REFLECT THAT YOU HAVE A -- MORE DOMINANT FIGURE THAT PERSON IS ELIGIBLE -->> I GUESS I'M CONCERNED ABOUT, I KNOW WE HAVE THE MASTER MIND, THAT IS WHAT I WAS ASKING EARLIER, DOES IT REALLY MEAN, BECAUSE ONE PERSON IS DOING THE TALKING, I DON'T KNOW HOW, WHETHER ONE IS, MORE HANDSOME GUY THAN THE OTHER AND THEY SAID, YOU ARE THE LADIES MAN, YOU GO DO THE TALKING, YOU ARE THE SMOOTHER PERSON, I DON'T KNOW, THAT THAT ACTUALLY IS EQUIVALENT TO THE CASES WHERE THERE IS TRULY A MASTERMIND WHO IS LIKE, YOU KNOW, THAT DRIVES THE IDEA OF THIS MURDER, OR THE MURDER OF SOMEBODY'S HUSBAND OR SPOUSE AND THAT IS WHERE WE HAVE SAID, THOSE KIND OF MASTER MINDS AND WHERE THERE ARE TWO PEOPLE ACTING IN CONCERT, AND IF THERE IS A -- AN AGREEMENT, THAT ONE OF THEM IS GOING TO DO THE TALKING, I DON'T KNOW, YOU KNOW, AGAIN -- AND I -- I DON'T KNOW HOW THAT TRANSLATES INTO THAT PERSON'S BEING THE MASTER MIND.>> FIRST OF ALL, I DON'T THINK YOU HAVE THOSE FACT AND THOSE ARE NOT THE FACTS OF THE CASE, YOU DON'T HAVE ANYBODY SAYING, THAT A LEGALLY AGREED WITH MAREK THAT HE WAS GOING TO BE THE ONE THAT TALKED.THERE IS NO AGREEMENT TO THAT.THERE IS -- ALL WE HAVE IN THIS RECORD IS MAREK WAS THE ONE WHO WAS DOMINATED.OR DOMINATED THE CONVERSATION, AND MAREK WAS THE ONE THAT WENT FORWARD AND THE ONE THAT ADDRESSED AND SET THE PROCESS IN MOTION AND WE HAVE WIGLEY'S TESTIMONY, HIS TESTIMONY -- TRIAL TRANSCRIPT NOW, THAT REFLECTS THAT THE STATE SAID THAT, YOU KNOW, WIGLEY'S TRIAL, THAT YOU KNOW, WIGLEY WAS INVOLVED, TOO.BUT, IN THE RECORD, THE -- BEFORE THIS JURY WHAT WE HAD WAS THE JUDGE, JURY, KNOWING THAT IT WAS WIGLEY WHO WAS STANDING BY WITH HIS HEAD HUNG DOWN, NOT SAYING ANYTHING.HE DIDN'T ACT, HE DIDN'T DO ANYTHING. AND THAT IS WHAT WE HAVE IN THIS RECORD.MAREK DOING EVERYTHING.>> WE ALSO HAVE OTHER POTENTIAL EVIDENCE, THAT SHOWS THAT MR. WIGLEY WAS A WEAK PERSON, AND A FOLLOWER, NOT A LEADER. >> RIGHT. >> WHICH WOULD CONFIRM THE CIRCUMSTANCES THAT POINT TO MR. MAREK AS THE DOMINANT ACTOR.>> AND THAT IS MY NEXT POINT, WHAT I'M REALLY GETTING AT.BEYOND THESE SIX PEOPLE, WHO DO NOT IMPACT WHAT HAPPENED AT THIS TRIAL, IF YOU HAVE ANOTHER PENALTY PHASE OR YOU HAVE TO PUT THIS IN THE CALCULUS, OF, WE HAVE DR. CASH, DR. COOPER, WHO ALL WERE DOCTORS WHO HAD LETTERS TO THE COURT AT THAT TIME, WHO WOULD HAVE BEEN CALLING, CALLED AND YOU DO THIS REPORT, AND TALK ABOUT WHAT IN FACT THE RECORD BEARS OUT AND THAT WAS WIGLEY WAS A WIMP.HE WAS NOT A FOLLOWER, YOU HAVE EVERY ONE OF THESE WITNESSES THAT TESTIFIED AS -- AT THE EVIDENTIARY HEARING, SAYING THAT WIGLEY'S A WIMP.THEY ARE NOT CHANGING THAT.THEY ARE NOT CHANGING ANYTHING.THEY ARE NOT, NOT CUTTING INTO THE REAL ISSUE, BEFORE THE COURT.AND THAT IS, WHETHER IN FACT MAREK WAS THE DOMINANT ONE, BECAUSE THAT IS THE PREMISE UPON WHICH THE COURT AND EVERY COURT THAT LOOKED AT IT, NO MATTER WHAT THE ISSUE MAY BE, WHETHER AN -- EDMONDS ISSUE OR WHATEVER, DETERMINED THAT MAREK WAS THE PREDOMINANT ACTOR IN THIS CASE AND NOTHING -- NOTHING -- THAT WIGLEY SAID TO THESE SIX PEOPLE -- FIVE PEOPLE, BECAUSE I DON'T THINK HE TALKED TO MR. DOUGLAS, THESE FIVE PEOPLE MAKES A DIFFERENCE, IN JAIL TWO OF THESE PEOPLE SAID, WIGLEY SAID, I KILLED BEFORE AND I'LL KILL AGAIN. >> DIDN'T HE TELL ONE OF THE WITNESSES THAT HE WAS ACTUALLY THE ONE THAT TALKED TO THE WOMEN ON THE ROAD, WHICH IS REFUTED .>> YES. >> BY THE SURVIVING TRAVELING COMPANION AND HAS NO CREDIBILITY. >> RIGHT. AND, AGAIN, THEY CHANGE AND, WHAT MR. PEARSON SAID, HOW THEY FLUCTUATED, ONE OF THE STORIES WAS THAT HE DIDN'T KNOW WHEN MAREK LEFT AND FELL ASLEEP AND FOUND THE WOMAN DEAD AND DIDN'T KNOW WHERE MAREK WAS, AND THAT DOESN'T MEAN THAT HE ACTUALLY DID THE STRANGULATION, HE TELLS ONE WITNESS, THAT HE DID IT WITH HIS HANDS.HE TOLD ANOTHER ONE HE STRANGLED WITH A BANDANNA AND WE HAVE DIFFERENT STATEMENT, GOING ACROSS THE BOARD.AND SO, BASED ON WHAT WE HAVE, TAKING IN TOTO WE HAVE TO LOOK AT ALL OF THE EVIDENCE, THE TRIAL JUDGE FOUND THERE WAS NO CREDIBILITY AS TO ANY OF THESE WITNESSES, AND THAT THERE WOULD NOT BE -- WOULD NOT BE A PROBABILITY, THE OUTCOME WOULD BE DIFFERENT.THE STATE UNLESS THERE ARE OTHER QUESTIONS WOULD ASK THE COURT TO AFFIRM.THANK YOU. >> THANK YOU.
>> FIRST, AS TO JUDGE LEVINSON'S CREDIBILITY, I THINK IN CONTEXT, WHAT HE IS SAYING IS THAT HE DID NO FIND MR. WIGLEY CREDIBLE, BECAUSE, THERE WERE INCONSISTENCIES BETWEEN THE STATEMENT AND THE... TESTIFIED DID NOT NECESSARILY BELIEVE HIM.AND THERE IS NO INDICATION THAT HE FOUND AN INDIVIDUAL OTHER THAN MR. DOUGLAS, AS CREDIBLE
.AND, SECOND, AS TO BRIEFLY, ON THE DILIGENCE POINT, IT WAS INDICATED INFORMATION FROM THE STATE ATTORNEY'S OFFICE, PROSECUTING MR. WIGLEY'S MURDER IN 2011, THAT IS NOT TRUE AND IT WAS AN OPEN FILE AND... REFUSED TO PROVIDE IT AND IT WAS NOT DISCOVERED UNTIL 2009.
ALSO, MR. BANTERMAN WAS-ON-NOT ON THE LIST -- MR. BANTERMAN WAS NOT ON THE LIST, ON -- AND THAT'S THE TESTIMONY.AND ALSO, TO MAKE THIS POINT THAT AS TO WHETHER MR. PEARSON
-->> HOW, THEN, HOW WAS MR. BANTERMAN FOUND.
>> HE WAS FOUND IN THE DOC RECORDS, IN 2009, AND HE WAS TALKED TO IN 2009. HE NAME WAS IN THE DOC RECORDS IN O-1, BUT HIS NAME WAS NOT PUT ON THE LIST.AND, THE EXPLANATION WAS HE DIDN'T SEEM TO HAVE THAT CLOSE OF A CONNECTION WITH MR. WIGLEY...
>> BUT HIS NAME WAS IN THE RECORD.IN 2001.
>> YES.
>> AS TO MR. PEARSON, MR. PEARSON, NEVER
-->> DO YOU SPEND SOME TIME ON HER ARGUMENT, THE BOTTOM LINE, SHE SAYS THAT THIS REALLY DOESN'T CHANGE THE OUTCOME AS TO THE SENTENCING AND SEEMS TO BE THE HEART OF WHERE WE ARE GOING INTO YES, YOUR HONOR
AND ULTIMATELY, I GUESS, SORT OF THE HYPOTHETICAL KIND OF NOTION THAT I BELIEVE, JUSTICE PARIENTE WAS SORT OF ALLUDING TO IS, IN A SITUATION WHERE WE HAVE NEW EVIDENCE THAT IS DEFINITELY ESTABLISHING THAT MR. WIGLEY IS THE KILLER, THERE IS NO QUESTION, IT WOULD HAVE TO BE A LIFE SENTENCE.
>> THE STATE SAYS, THE STATE SAYS THAT REALLY, WHAT YOU HAVE HERE IS -- WE MAY QUIBBLE ON WORDS, BUT THE MASTERMIND, THE PERSON WHO REALLY SEDUCES OR ENTICES THIS VICTIM, INTO THE WEB, DOES ALL THE TALKING, DOES ALL THE MANIPULATION AND SECURES THE PERSON, WHAT ABOUT THAT, THAT IS WHAT SHE SAID.
>> ALL THE CASES THAT SHE IS RELYING UPON... [INAUDIBLE] THERE IS NO INDICATION... [INAUDIBLE] IN FACT ALL THE EVIDENCE IS THAT THERE WAS NO
-->> IS THAT A REQUIREMENT?
>> I THINK, THE MASTER MIND, YOU KNOW
-->> TO FALL INTO THAT CATEGORIES OF CASES.
>> I THINK ALL OF THE CASES THAT SHE CITED ARE ALL... CASES, THE PLANNED TO MAKE ARRANGEMENTS TO MURDER HER HUSBAND.AND I CAN'T REMEMBER WHAT THE OTHER CASE IS.MY RECOLLECTION IS IT INVOLVED A COLD, CALCULATED... [INAUDIBLE].
>> ARE YOU SAYING YOU CANNOT FROM THE CIRCUMSTANCES OF THE CASE, DETERMINE THAT SOMEONE IS A MASTERMIND.YOU HAVE TO HAVE THAT
-->> IT IS POSSIBLE. BUT IN THIS CASE, WHAT IS INTERESTING, IS
-->> IT'S POSSIBLE.
>> IT'S POSSIBLE AND IN THIS CASE IT IS NOT POSSIBLE, IF YOU LOOK AT WHAT HAPPENED IN MR. WIGLEY'S TRIAL,
THE... [INAUDIBLE] LOOK AT WHAT HAPPENED IN MR. WIGLEY'S TRIAL THE PROSECUTION WAS ARGUING THE SAME EVIDENCE THAT, SHOWING THIS WAS MR. WIGLEY WHO WAS THE ONE IN CONTROL.ARGUING THAT HIS SILENCE WAS OMINOUS AND ARGUING HE WAS THE ONE THEY WERE REALLY AFRAID OF.
>> I -- GO AHEAD.
>> I'M SAYING WHERE THE EVIDENCE IS AMBIGUOUS, THE PROSECUTION
-->> BUT EVIDENTLY, I MEAN, IT SEEMS TO ME THAT THERE IS SOME DISCERNMENT GOING HERE, BECAUSE HE ENDED UP WITH, YOU KNOW, A LIFE SENTENCE.AS OPPOSED TO
-->> MITIGATION.
>> SENTENCED TO DEATH.
>> MITIGATION WAS PRESENTED IN HER WIGLEY'S CASE AND NONE IN MR. MAREK'S CASE AND ONE OF THE THINGS THAT IS BEING OVERLOOKED IS THE MENTAL HEALTH EVALUATION, THE MENTAL HEALTH EVALUATION IS MR. WIGLEY WAS INSANE.
AND THAT HE DID IT IN A FRENZY.AND, SO, MR. MOLDOF TESTIFIED, IT WAS EASY TO RIP APART THE INSANITY THING THAT WAS NOT PRESENTED MT. ARE WIGLEY
-->> WHAT WERE THEIR AGES AND RELATIVE HEIGHTS.
>> MR. MAREK IS DEFINITELY TALLER, THEY WERE ABOUT THE SAME AGE.
>> WHAT WAS BOTH OF THEIR CRIMINAL HISTORIES.
>> OFF THE TOP OF MY HEAD, I DON'T REMEMBER MR. WIGLEY'S AND MR. MAREK WAS A $65 CREDIT CARD CHARGE... CONSIDERED A FELONY.
>> NO PRIOR VIOLENT FELONIES.
>> NO PRIOR VIOLENT FELONY AND THE POINT I WAS MAKING IS, WHAT DO YOU... [INAUDIBLE] IF IT IS 50/50,
THEY SHOULD GET THE SAME SENTENCE AND THAT IS WHAT THE COURT CASE LAW IS AND I DON'T THINK -- THAT'S WHY I DON'T THINK I HAVE TO PROVE... [INAUDIBLE] I THINK I HAVE TO PROVE ANYBODY THAT LOOKS AT THIS... [INAUDIBLE] JUST AS LIKELY MR. WIGLEY... [INAUDIBLE]
SO THAT'S WHY I'M ARGUING THAT EVEN IF IT IS MUDDLED AND EVEN IF YOU LOOK AT A AND DON'T KNOW WHAT HAPPENED, THAT IT SHOULD BE A LIFE SENTENCE FOR BOTH OF THEM,
AND UNDER THE PROPER ANALYSIS AND I WANTED TO MAKE THIS POINTED, MR. MOLDOF TESTIFIED HE WAS NOT... HE HAD HAD THE STATEMENTS TO PRESENTS MR. MAREK'S VERSION, THAT HE WAS OUT IN THE PICKUP TRUCK.WHEN THIS WAS GOING ON.
>> YOU HAVE USED YOUR TIME.
>> THANK YOU, YOUR HONOR.
>> THANK YOU VERY MUCH FOR YOUR ARGUMENTS, YOUR DILIGENCE AND GETTING THE BRIEFS TO US IN A VERY SHORT PERIOD OF TIME.
THANK YOU VERY MUCH.
THE COURT WILL NOW BE IN RECESS.>> PLEASE RISE.
The following is a real-time transcript taken as closed captioning during the oral argument proceedings, and as such, may contain errors. This service is provided solely for the purpose of assisting those with disabilities and should be used for no other purpose. These are not legal documents, and may not be used as legal authority. This transcript is not an official document of the Florida Supreme Court.
John Marek v. State of Florida
SC09-1080
>> PLEASE RISE.HEAR YE, HEAR YE, HEAR YE.THE SUPREME COURT OF FLORIDA IS NOW IN SESSION.ALL WHO HAVE CAUSE TO PLEA, DRAW NEAR.GIVE ATTENTION AND YOU SHALL BE HEARD.GOD SAVE THIS UNITED STATES, THIS GREAT STATE OF FLORIDA AND THIS HONORABLE COURT.LADIES AND GENTLEMEN, THE FLORIDA SUPREME COMFORT PLEASE BE SEATED.>>
GOOD MORNING AND WELCOME TO THIS SESSION OF THE FLORIDA SUPREME COURT.THE ONLY CASE ON THE COURT'S DOCKET THIS MORNING IS MAREK VERSUS STATE, ARE THE PARTIES READY TO PROCEED? MR. McCLAIN.
>> THANK YOU, PLEASE THE COURT... [INAUDIBLE]. >> PLEASE TALK INTO THE MIC.>> SORRY. USUALLY HAVE -- MY VOICE IS NOT A PROBLEM IN TERMS OF MILDNESS.
THIS IS A APPEAL FROM THE DENIAL OF A -- 38TH DISTRICT MOTION, I WILL FOCUS MY ARGUMENT ON THE NEWLY DISCOVERED EVIDENCE CLAIM WHICH IS THIS FIRST ONE ADDRESSED IN THE BRIEF AND IF THERE ARE ANY QUESTIONS ABOUT ANYTHING ELSE, CERTAINLY I AM WILLING TO ANSWER THEM.
AT THE EVIDENTIARY HEARING THAT OCCURRED ON JUNE 1ST AND 2ND THERE WERE SIX WITNESSES, WHO -- NEWLY DISCOVERED WITNESSES PRESENTED AND OF THOSE, ONE OF WHICH LEON DOUGLAS, THERE ARE ISSUES ABOUT AND THE REMAINING FIVE, THOSE FIVE WITNESSES, I SUBMIT, REQUIRE AT THE VERY LEAST, PENALTY PHASE RELIEF.
AND LET ME EXPLAIN WHY.
FIRST, THE JUDGE IN DENYING HIS FIRST GROUND FOR DENYING RES JUDICATA AND THE WITNESSES DID NOT TESTIFY AT ANY PREVIOUS PROCEEDINGS AND I SUBMIT THAT THAT WAS WRONG ANALYSIS TO HAVE RES JUDICATA AND IN TERMS OF THE QUESTION OF DILIGENCE, THE TESTIMONY PRESENTED WAS IN 2001, WHEN MR. WIGLEY WAS MURDERED, IN PRISON,
THERE WAS AN EFFORT MADE TO MAKE UP A LIST OF PEOPLE IN PRISON AND OUT OF PRISON, WHO WIGLEY MAY HAVE CONFIDED IN, JUST TO SEE IF THERE WAS ANYBODY OUT THERE AND -->> AND THIS WAS DONE WHEN. >> 2001.
IT WAS AT THE TIME OF THE -- THE COURT DECIDED TO TAKE THE -- WHERE THE COURT RECOGNIZED, NEWLY DISCOVERED EVIDENCE WARRANTED A -- ACTUALLY PENALTY PHASE RELIEF FOR MR. MILLS WHICH ULTIMATELY LED TO A LIFE SENTENCE AN ON THE BASIS OF A STATEMENT MR. MILLS MADE WHILE INCARCERATED IN JAIL, A, WAIT -- AWAITING MR. MILLS' TRIAL FOR THE CODEFENDANT, ANDERSON ASH LIMIT
AND SO IT WAS A SHOT IN THE DARK TO CHECK AND SEE IF THERE WAS ANYTHING OUT THERE AND ALL OF THE PEOPLE THAT WERE TALKED TO HAD NO INFORMATION, AND TWO INDIVIDUALS WHOSE NAMES WERE ON THE LIST BECOME SIGNIFICANT BECAUSE THEY ARE WITNESSES NOW AND ONE OF THE INDIVIDUALS, ROBERT PEARSON, AND ROBERT PEARSON, WHO DID TESTIFY ON JUNE 1ST, WAS ON THE LIST IN 2001, HE WAS CONTACTED IN 2001, AND AT THAT TIME, INDICATED HE DID NOT WANTED TO TALK, DID NOT WANTED TO GET INVOLVED, BOTH MS. MCDERMOTT TESTIFIED REGARDING THAT AND MR. PEARSON TESTIFIED, HE REFUSED TO GET INVOLVED
AND THE OTHER PERSON'S NAME ON THE LIST WAS MICHAEL CONLEY AND THERE WAS BE A EFFORT MADE TO LOCATE HIM AND DOC RECORDS INDICATED HE WAS GOOD FRIENDS WITH MR. WIGLEY AND HE WAS RELEASED FROM PRISON AND EFFORTS WERE MADE TO CONTACT HIM AND THERE WAS A LEAD TO SOMEBODY IN BROWARD COUNTY AND TURNS OUT ACCORDING TO MR. CONWAY IT WAS A FAMILY MEMBER OF HIS AND HE HAD GONE THROUGH A DIVORCE, HE WAS CONCERNED ABOUT HIS WIFE, OR PEOPLE ON BEHALF OF HIS WIFE, CONTACTING HIM, HIS FAMILY MEMBER INDICATED TO MR. CONLEY THAT HE'S GIVING THAT INFORMATION AND BASICALLY SHUT IT DOWN
AND IN FACT, MS. MCDERMOTT TESTIFIED TO, AS THE INVESTIGATOR, WENT OUT AN ATTEMPTED TO CONTACT HIM AND RAN INTO THE BROTHER IN BROWARD COUNTY AND HAS NOT BEEN ABLE TO LOCATE HIM.
AS TO THE OTHER INDIVIDUALS, WHO TESTIFIED, IN 2009, THEY WERE NOT KNOWN, THEY DIDN'T GET ON THE LIST, AGAIN, THE LIST IN 2001, WAS BASICALLY A SHOT IN THE DARK, HAIL MARY PASS KIND OF THING.
>> I -- SINCE YOUR TIME IS LIMITED, LET'S ASSUME WE AGREE WITH YOU THAT DUE DILIGENCE WAS... AND YOU HAVE NOW FOCUSED ON THE PENALTY PHASE. >> YES. >>
WHAT DO YOU THINK THAT THIS EVIDENCE IS ADMISSIBLE IN THE PENALTY PHASE, HEARSAY... [INAUDIBLE] A DIFFERENT STORY.
WHAT -- HOW WOULD THAT PROBABLY PRODUCE A LIFE SENTENCE, BECAUSE THAT IS REALLY THE TEST, FOR NEWLY DISCOVERED EVIDENCE IS, WOULD IT PROBABLY PRODUCE A LESS SENTENCE.
>> WELL, FIRST, ONE PLACE TO LOOK IS MR. MOLDOF WHO TESTIFIED JUNE 2ND AND HOW THE STATEMENTS IMPACTED HIM AND WHAT HE WOULD HAVE DONE IN TERMS OF THE PENALTY PHASE AND IN 1984, ONE OF THE ISSUES THAT HAPPENED WAS IN REFERENCE TO HIS DECISION NOT TO PRESENTS THE LIFE SENTENCE MR. WIGLEY RECEIVED AND THE TIME IN 1984 HE EXPLAINED IT WAS BECAUSE THE JUDGE WOULD ALLOW THE STATE TO BRING OUT THE FACT THAT WIGLEY HAD MADE A STATEMENT TO THE POLICE IN WHICH WIGLEY PUT ALL OF THE BLAME ON MR. MAREK.
>> YOU AGREE IF THIS EVIDENCE WERE TO COME IN, AND -- IN AT LEAST THE PENALTY PHASE, WIGLEY'S CONFESSION WOULD -->> YES. AND MR. MOLDOF, HAD NO PROBLEM WITH THAT AND WOULD HAVE PRESENTED THIS
AND HE THOUGHT THAT A STATEMENT AFTER THE CRIME TO THE POLICE, WAS, HE CERTAINLY WOULD ARGUE, WOULD BE SELF-SERVING VERSUS CONSISTENT STATEMENTS MADE TO INDIVIDUALS HE WAS INCARCERATED WITH, AND, HE WOULD HAVE NO PROBLEM PURSUING THAT.
>> I GUESS -- YOU ARE SAYING, WELL, THE LAWYER WOULD ACT DIFFERENTLY.BUT, IN TERMS OF THE AGGRAVATOR AND THE MITIGATOR, I UNDERSTAND WE CAN LOOK AT WHETHER YOUR CULPABLE DEFT RECEIVED A LIFE SENTENCE, IT JUST DOESN'T LOOK LIKE THAT SITUATION.WHAT COULD A JURY -- WHAT MITIGATOR WOULD THIS GO THROUGH OR WHAT AGGRAVATOR, WOULD IT CHANGE?
Y -- YOU SEE, I UNDERSTAND YOU HAVE PRESENTED INTERESTING TESTIMONY BUT WHERE WOULD IT FIT IN IN A NEW PENALTY PHASE AND GIVE ME YOUR BEST SHOT,
IT WOULDN'T CHANGE THE AGGRAVATORS AND WHAT MITIGATORS WOULD IT GO TO.
>> FIRST OF ALL, IT WOULD HAVE LED MR. MOLDOF TO PRESENT THE LIFE SENTENCE, WHICH WAS NOT PRESENTED BEFORE AND THAT HAS BEEN RECOGNIZED, A LIFE SENTENCE, AS A MITIGATING CIRCUMSTANCE AND, SECOND, IT WOULD HAVE GONE TO REDUCE MR. MAREK'S ROLE,
IN THE COURT, ON DIRECT APPEAL FOUND THAT HE WAS THE DOMINANT INDIVIDUAL.THIS WOULD HAVE GONE TO NEGATE THAT.
>> IF WE -- I'M SORRY. .>> YOU DO RECOGNIZE THAT NOT ONLY WAS THE DEFENSE COUNSEL... HAVE BEEN CHANGED AND THE STATE WOULD HAVE DONE THINGS DIFFERENTLY THAN THEY WOULD HAVE AND WOULD HAVE BEEN ABLE TO BRING IN THINGS LIKE THE CONFESSION AND PSYCHOLOGICAL INFORMATION, THAT INDICATED THAT MR. WIGLEY WAS A FOLLOWER, NOT A LEADER.AND THINGS THAT WOULD TEND TO UNDERMINE THIS NEWLY DISCOVERED EVIDENCE, ISN'T THAT CORRECT.
>> MR. MOLDOF TESTIFIED AS TO THE MENTAL HEALTH EVALUATIONS, MENTAL HEALTH EVALUATIONS WERE DONE SOLELY ON SELF-REPORTING OF MR. WIGLEY AND THERE IS FIRST A QUESTION OF WHAT ONES WOULD HAVE BEEN ADMISSIBLE AND SECOND, THE EXPERTS DIDN'T HAVE THESE STATEMENTS MADE IN PRISON.WHICH SUGGESTS THAT MR. WIGLEY WAS IN FACT NOT A FOLLOWER.AND THE CONCLUSION
-->> BUT, ALSO, I MEAN, WHEN YOU LOOK AT THESE STATEMENTS, IN CONTEXT, ISN'T IT LIKELY THAT A JURY WOULD VIEW THESE THINGS INCONSISTENT AS THEY WERE, VARIABLE AS THEY WERE AS MOST LIKELY AND EXERCISE IN BRAGGING, AND SELF-PROTECTION.IN TRYING TO PROJECT AN IMAGE OF TOUGHNESS, IN ORDER TO AVOID SOME TROUBLES IN PRISON.
>> FOR EXAMPLE, MR. PEARSON IN PARTICULAR, HIS TESTIMONY WAS QUITE COMPELLING AND HE INDICATED, MR. PEARSON INDICATED THAT MR. WIGLEY... VARIED OVER TIME AND THE ONLY THING THAT VARIED WAS MR. WIGLEY'S MEMORY WHEN HE WAS ALONE WITH THE VICTIM IN THE SHACK, AS TO WHETHER OR NOT HE REMEMBERS KILLING HER OR SIMPLY REMEMBERS WAKING UP AND SHE WAS DEAD AND ALL OF HIS VERSIONS, MR. MAREK WAS OUT IN THE TRUCK, NOT INVOLVED. >> BUT THERE IS WHERE THE EVIDENCE THAT I GUESS TO ME HAS BEEN VERY COMPELLING, ABOUT MR. MAREK'S FINGERPRINTS BEING THE ONLY FINGER PRINT FOUND IN THE SHACK WHERE THE BODY WAS FOUND.SO THE IDEA THAT IT WAS MAREK THAT WAS OUTSIDE AND PLAYED AN INSIGNIFICANT ROLE IS CONTRADICTED BY THE PHYSICAL EVIDENCE. I MEAN, IF YOU DIDN'T HAVE THAT PHYSICAL EVIDENCE, AND PLUS YOU STILL -- THERE IS NOTHING THAT HAS CHANGED THE FACT THAT THIS COURT RELIED ON, THAT THE TWO -- SURVIVING -- THE PASSENGER, DID NOT ULTIMATELY GO, SAID IT WAS MR. MAREK THAT DID ALL THE TALKING AND THE POLICE OFFICER AFTERWARDS SAID IT WAS MR. MAREK THAT DID ALL THE TALKING, NOT MR. WIGLEY AND THAT DOESN'T DISAPPEAR, DOES NIGHT IT DOESN'T, BUT, CERTAINLY IT IS WORTH NOTING IN MR. WIGLEY'S TRIAL THAT WAS NOT PORTRAYED AS OMINOUS AND IT WAS LESS OMINOUS AND HE WAS THE TALKER AND THAT WAS PURSUANT TO AN AGREEMENT WITH MR. WIGLEY,
I THINK THE BOTTOM LINE, THOUGH, IS, IF YOU HAVE CONFLICTING EVIDENCE, IT ALL SORT OF NEGATES
AND WHAT YOU END UP HAVING IS THE DISPARITY IN THE TREATMENT OF THESE TWO INDIVIDUALS.WHICH IS WHAT CALLS FOR THE LIFE SENTENCE.
I MEAN, YOU COULD HAVE DOUBTS AS TO WHICH OF WIGLEY'S STATEMENTS TO BELIEVE, BUT, CLEARLY, THERE IS MORE GOING ON HERE, AND -
->> IT IS INTERESTING, THE ARGUMENT FOR THIS PENALTY PHASE, YOU ARE NOT SAYING THAT THIS COURT, BASED NOW ON THE NEWLY DISCOVERED EVIDENCE, NOW PRODUCED MAREK'S SENTENCE, THE LIFE SENTENCE, ARE YOU.
>> CERTAINLY, THAT... I MAKE A NUMBER OF ARGUMENTS, AND I SAY UNDER NEWLY DISCOVERED EVIDENCE, AND THESE CIRCUMSTANCES, IT IS NOT JUST A QUESTION OF WHETHER IT WOULD HAVE MADE A DIFFERENCE TO THE JURY,
IN ABRAM SCOTT IT WOULD HAVE MADE A DIFFERENCE TO THE SENTENCING JUDGE AND SHE SAID SHE WOULD HAVE IMPOSED LIFE AND IT SHOULD HAVE BEEN LOOK AT AS HOW IT WOULD AFFECT THE COURT ON DIRECT APPEAL.
>> WHAT
-->> ABRAM SCOTT SKIES, JUDGE SCHAEFFER INDICATED, BEFORE SHE RECUSED HELPFUL HAD SHE KNOWN OF THE LIFE NOTICE FOR THE CODEFENDANT.
>> BUT THAT IS NOT THIS CASE.
>> BUT IS AN EXAMPLE OF HOW IT HAS TO BE EVALUATED.NOT JUST WHAT HAPPENED IN FRONT OF THE E JURY, BUT HOW IT COULD HAVE IMPACTED
-->> WE DON'T HAVE THE ORIGINAL JUDGE HERE BUT THE JUDGE DIDN'T EVEN FIND THE WITNESSES TO BE CREDIBLE. >> CORRECT.BUT, WHAT THE JUDGE DID DO IN 1988 IS STRUCK AN AGGRAVATING CIRCUMSTANCE AND SAID IT WAS HARMLESS MERELY BECAUSE THERE WAS NO MITIGATION.AND, THAT DECISION WOULD NOT BE SUSTAINABLE, HAD THE LIFE SENTENCE FOR THE CODEFENDANT BEEN IN THE RECORD.WHEN STRIKING AN AG AND IF THERE IS MITIGATION THAT COULD HAVE PROVIDED THE BASIS FOR A LIFE SENTENCE AND THE JUDGE, AT THE TIME OF THE TRIAL, INDICATED DURING THE INSTRUCTION CONFERENCE, THAT IN THE CASE, THERE WAS NO WAY THAT HE COULD OVERRIDE A JURY RECOMMEND DIGS OF LIFE, AND SO THAT WAS ONE OF THE REASONS WHY HE TOLD MR. MOLDOF, TRYING TO PERSUADE -- SWAY THE JURY WITH THE LIFE SENTENCE STUFF I'LL ALLOW THE PROSECUTION TO GET INTO WIGLEY'S CONFESSION, SO MY POINT. >> THAT THIS COURT HAS TO NOT JUST LOOK AT THE JURY, THE TRIAL JUDGE, BUT ALSO, THIS COURT ON DIRECT APPEAL AND IN POST-CONVICTION
-->> WHEN YOU LOOK AT ALL OF THOSE THINGS AND YOU LOOK AT THE CIRCUMSTANCES OF HOW -- WHERE THESE STATEMENTS WERE MADE, I MEAN, YOU HAVE THE SITUATION WHERE ONE OF THE PEOPLE SAYING, BASICALLY, THAT THIS -- MR. WIGLEY IS REALLY A WIMP AND HAS HE WAS -- BRAGGING ABOUT THIS AND ANOTHER ONE WHO SAID THAT BASICALLY HE SAID HE DIDN'T DO IT, OR WHEN THE GUY INDICATED HE WOULDN'T GIVE HIM ANY HELP, HE CHANGED HIS STORY AND SAID HE DID DO IT.AND ANOTHER ONE SAYS THAT, YOU KNOW, I DIDN'T REALLY BELIEVE THESE STATEMENTS THAT HE WAS MAKING, AND SO, WHEN A JURY -- THE JURY AND THE JUDGE EVEN THE COURT LOOK AT ALL OF THESE CIRCUMSTANCES, SURROUNDING THE MAKING OF THESE VARIOUS STATEMENTS, IT REALLY SEEMS A VERY DIFFICULT TASK FOR ME TO SAY, ANYWAY, THAT THIS WOULD HAVE TRULY MADE, PROBABLY MADE A DIFFERENCE IN THE SENTENCING.AND, I -- THE CONTEXT OF THESE STATEMENTS, REALLY IS WHAT PERSUADES ME THAT THIS REALLY WOULD NOT HAVE MADE A DIFFERENCE.
>> FIRST I WOULD LIKE TO POINT OUT THAT THE PROSECUTION ON JUNE 2ND, EXILE EXAMINING MS. MCDERMOTT MADE THE POINT THAT, HOW MR. WIGLEY'S BODY IN FACT WAS FOUND.WAS SO STRIKINGLY SIMILAR TO THE VICTIM IN THIS CASE, THEY -- THE STATE'S ARGUMENT WAS THAT THAT WOULD SUGGEST THAT THERE WAS A CONNECTION.BECAUSE, MISBAIL
-->> HOW HIS BODY AS FOUND. >> NAKED WITH A RED BANDANNA AROUND HIS NEXT. >> THE CIRCUMSTANCES OF THIS CASE HAS BEEN BANTERED ABOUT FOR YEARS AND I'M NOT SURE HOW THAT HELPS IN THIS SITUATION.
>> WELL, I MEAN, I THINK HER POINT WAS, BECAUSE OF THE SIMILARITY IN HOW THE BODY WAS FOUND, IT WOULD SUGGEST THAT MR. WIGLEY'S BOYFRIEND, WHO MURDERED HIM, HAD DONE TO HIM WHAT HAD BEEN DONE -- HE HAD DONE TO SOMEONE ELSE.AND I THINK THAT THAT WAS WHAT THE STATE'S POINT WAS.
BUT, ULTIMATELY, THERE IS NO QUESTION THAT THIS COURT IN 1988, WOULD HAVE HAD TO REVERSE WHEN AN AGGRAVATOR WAS STRUCK. AND THE JURY IN THIS CASE WAS GIVEN FOUR AGGRAVATORS AND THE JUDGE FOUND FOUR AGGRAVATORS AND IN 1988 ONE OF THOSE WAS STRUCK, AT THE TIME,
IN 1984, THE MITIGATION WAS SIMPLY A GUARD FROM THE JAIL, TESTIFYING, AS TO HIS -- MR. MAREK'S CONDUCT IN JAIL AND HE HAD SHOWN REMORSE AND THE PROSECUTION TURNED AROUND AND SAID REMORSE WAS SIMPLY THAT HE WAS CAUGHT, NOT THAT HE WAS REALLY REMORSEFUL.
IN ANY EVENT, I BELIEVE THAT THE FACT THAT IT BECOMES MUDDLED, AS TO WHO DID WHAT, IS PRECISELY WHAT THIS COURT HAS INDICATED REQUIRES THE -- THAT THEY BE TREATED THE SAME AND WOULD REQUIRE A LIFE SENTENCE FOR MR. MAREK.
>> YOU ARE WELL INTO YOUR REBUTTAL.
>> I WILL
-->> IF YOU WANT TO SAVE ANY TIME.
>> I WILL SAVE THE REMAINING TIME. >> ALL RIGHT.
>> I'M CAROLYN SNURKOWSKI FROM THE ATTORNEY GENERAL'S OFFICE, JUDGE LEVINSON WHO HEARD THE JUNE 1ST, 2009 HEARING WAS NOT THE TRIAL AND IT WAS A CONFUSION WITH REGARD TO WHAT HE -- HE HAD TO LOOK AT THE TOTAL CASE AFRESH AND REVIEWED THE RECORDS AND HIS ASSESSMENT OF THE RECORD IS BASED ON TRANSCRIPTS, TESTIMONY, PRESENTED FOR HIM, AND THE ARGUMENTS THAT WERE MADE BY COUNSEL, BEFORE HIM, AND, HE MADE ASSESSMENTS THAT THE WITNESSES WERE NOT CREDIBLE AND I WOULD LIKE TO STEP BACK A LITTLE BIT, BECAUSE, AS WELL, I FULLY APPRECIATE THAT I -- THESE WITNESSES DID NOT -- WERE NOT COMPELLING, WOULD NOT CHANGE THEOUT COME, AND PROBABLY WOULD NOT CHANGE THE OUTCOME WITH REGARD TO A NEW PENALTY PHASE OR YOU CAN EVEN GET TO A PENALTY PHASE THE STATE WOULD SUBMIT IT IS A RARE CASE WHERE THIS TRIAL COURT IN FACT FOUND NO DUE DILIGENCE, AND IT IS SUPPORTED BY THE RECORD, IT IS SUPPORTED BY THE TESTIMONY THAT WAS PRESENTED AT TRIAL BY DEFENSE COUNSEL, WITH REGARD TO WHAT ACTION THEY UNDERTOOK AND IN THIS CASE IT POINTS TO THE FACT THAT WE HAVE A TARGET DATE.WE KNOW THAT MR. WIGLEY DIED, HE WAS KILLED MAY 6TH, 2000 AND AT THAT TIME, DEFENSE COUNSEL FOR MR. MAREK WAS ENGAGING IN LITIGATION AND AT THAT TIME, RIGHT AFTERWARDS, IN FACT, WITHIN A YEAR, OF THAT, THEY SECURED INFORMATION FROM DOC AND THE STATE ATTORNEY'S OFFICE AND -- WHO PROSECUTED THE CASE AND OTHER COURSES -- GOVERNMENT AGENCIES WITH REGARD TO INFORMATION CONCERNING MR. WIGLEY AND MR. MAREK.MR. WIGLEY IN PARTICULAR, ABOUT MR. MAREK. AND WHAT THEY FOUND OUT, AND WHAT THE ALLEGATION WAS, IF YOU LOOK BACK AT THE HISTORY OF THIS CASE, THE 9TH CLAIM IN THAT CASE HAD TO DO WITH -- THE CULPA ABILITY OF THE PARTIES, WITH REGARD TO MAREK, AND WIGLEY AND AT THAT TIME, THEY WERE PRESENTING AND TRYING TO SECURE EVIDENCE THAT SHOWED THAT THE HISTORY, WIGLEY'S HISTORY, DEMONSTRATED THAT HE WAS A MORE CULPABLE -- AND HE WAS NOT A LESSER DOMINATING PERSON OR HE WAS NOT THE LESSER PERSON, EQUALLY OR MORE DOMINANT TYPE OF PERSONALITY.AND, FAILED AT THAT.BUT, IN DOING THAT, THEY WERE INVESTIGATING THIS EVIDENCE, THEY SECURED THE NAMES, THEY MADE CONSCIENTIOUS DECISIONS WITH REGARD TO SECURING WHAT NAMES THEY FOUND, AND CALLING THROUGH THAT -- COMING THROUGH THE LIST AND FINDING OUT WHO WAY WOULD SECURE AND MR. BANTERMAN WAS ON THE LIST AND THEY DISCOUNTED HIM AND HE COMES LATER ON IN 2009. >> HOW MANY OF THESE -- I BELIEVE THERE WERE 6 PEOPLE WHO TESTIFIED -->> THAT'S CORRECT, YOUR HONOR. >> AT THE EVIDENTIARY HEARING.HOW MANY OF THOSE NAMES WERE IN FACT DISCOVERED AND TALKED TO AT POINTS. >> WE KNOW AT LEAST THREE OF THOSE INDIVIDUALS WERE ON THE LIST, BECAUSE MR. MCDERMOTT ACKNOWLEDGED THAT AND THE OTHERS COULD OR COULD NOT HAVE BEEN ON BUT THEY WERE THE RAPID TRAIL THAT LED TO THE OTHER INDIVIDUALS, LIKE MR. MITCHELL, I BELIEVE, SAID,... MR. MITCHELL LED THEM TO AN INDIVIDUAL MR. CLARK, AND MR. CLARK LED THEM TO LEON DOUGLAS, AND I MEAN, IT WAS -- THERE WAS -- THE AVAILABLE EVIDENCE WAS THERE, AND DUE DILIGENCE DOES REQUIRE EFFORT ON THE PART OF THE LAWYER AND THE LAWYER DOESN'T SAY I GET A PASS BECAUSE I WAS UNSUCCESSFUL AND YOU TRY AND AT THIS POINT IN TIME IT WAS NOT A TIME WHEN NOTHING WAS GOING ON, THEY WERE ACTUALLY LOOKING FOR CLAIMS, WITH REGARD TO CHALLENGING THE CULPABILITY OF THE INDIVIDUALS WITH REGARD TO THE CRIME AND AS I SAID THIS IS ONE OF THOSE CASES WHERE WE DO HAVE A FAILURE TO PERFORM DUE DILIGENCE AND THE TRIAL COURT WHO LOOKED AT THE CASE -->> EVERY TIME WE HAVE ONE OF THESE CASES, THIS IS AN ISSUE THAT COMES ABOUT BUT WHEN THERE ARE NEW STATEMENTS THAT COME ABOUT WE WIND UP CHASING OUR TAILS, BECAUSE THEY TALKED TO SOMEONE AND THEY DIDN'T SAY BACK THEN WHEN THEY ARE SAYING NOW AND THOSE ARE THE DIFFICULT THINGS WE MUST, MUST WRESTLE WITH AND I FIND IT DIFFICULT AND THIN TO RULE ON A CASE LIKE THIS ON A DUE DILIGENCE WHEN THERE ARE STRONGER REASONS IN EXISTENCE THAT WOULD TAKE US BEYOND THAT.>> AND I -->> I SEE PROBLEMS, HERE, QUITE HONESTLY WITH, YOU KNOW, IN MY VIEW WITH SOME OF THE THINGS THAT OCCURRED DURING THE HEARING, AND THOSE KINDS OF THINGS.BUT, IT IS THE ULTIMATE, I THINK JUSTICE PARIENTE HIT ON THAT IS REALLY THE HEART OF WHAT THIS CASE IS ABOUT.I MEAN... >> AND I DON'T DISAGREE, YOUR HONOR, I UNDERSTAND THAT BUT I THINK IT IS IMPORTANT BECAUSE WE HAVE A TRIAL COURT WHO CAME IN THE CASE, NEW, AND FOUND -- MADE THAT GLARING DETERMINATION, THERE WAS NOT DUE DILIGENCE, AFTER HEARING THE EVIDENCE. >> AGAIN, I DON'T KNOW THAT THAT IS SUPPORTED, AND AS I LOOK AT THE RECORD I DON'T KNOW THAT THAT IS A FINDING, BECAUSE IT IS A FINDING IS REALLY SUPPORTED WHEN YOU LOOK AT THE WHOLE SCHEME OF THESE KINDS OF CASES THAT COME BEFORE US BECAUSE THIS IS ALWAYS AN ISSUE THE STATE WANTS TO GRAB TO, THIS IS THE ONLY ISSUE IN THE CASE. >> BUT, I DON'T -->> I WOULD, WOULD HOME YOU WOULD ADDRESS SOME OF THE OTHER ONES.RATHER THAN JUST HANG ON THAT POINT.PARTICULARLY, THE QUESTION OF JUSTICE -- THE QUESTION JUSTICE PARIENTE RAISES AND THE RESPONSE MR. McCLAIN PROVIDED TO US, HE HAS MADE A COMPELLING ARGUMENT, ONE PERSON IS RECEIVING A LIFE PENALTY AND THESE ARE THINGS THAT OUGHT TO BE REWEIGHED AND REEVALUATED.>> WELL, IN FACT IF YOU LOOK AT MR. CONLEY, GO TO THE WITNESS WHOSE TESTIFIED, HE TESTIFIED THAT HE THOUGHT FOR EXAMPLE THAT ALTHOUGH WIGLEY WAS TELLING HIM THIS, IT WAS FOR A REASON AND THE REASON WAS HE WANTED HIS -- MR. CONLEY'S WIFE TO HELP WIG L WITH REGARD TO HIS POST-CONVICTION LITIGATION, AND MR. BANTERMAN, HAS -- HIS TESTIMONY REFLECTS THAT MR. WIGLEY WAS BOASTING WITH REGARD TO HIS COMMENTS ABOUT HOW HE KILLED SOMEBODY.IF YOU LOOK THE AT MR. PEARSON -->> GO BACK TO MR. CONLEY, HE DID NOT TESTIFY AGAIN. >> HE DID NOT.HE WAS ILL AND COULD NOT COME BACK.>> HE STRUCK ME, IN TERMS OF -- OF COURSE WE DIDN'T SEE HIM, BUT HIS TESTIMONY IS CLEAR TO ME THAT HE HAD A FEELING THAT MR. WIGLEY... TELLING THE TRUTH.NOW, LET'S ASSUME THAT WIGLEY DID STRANGLE THE VICTIM.AND THAT THIS IS -- SEEMS TO BE CONSISTENCY THAT MIGHT MAKE THAT, YOU KNOW, A POSSIBLE THING, THAT IS, THAT IT WAS WIGLEY THAT ACTUALLY DID THE STRANGLING AND THEY BOTH MAY HAVE HAD SEXUAL RELATIONS.DOES THAT CHANGE THE RELATIVE CULPABILITY MIX, IN OTHER WORDS, IF WE LOOK AT THE SUM TOTAL AND SAY, YOU KNOW WHAT? LOOKS LIKE WIGLEY MAY HAVE BEEN THE PERSON WHO DID THE STRANGLING AND HE GOT THE LIFE SENTENCE, HOW DOES THAT AFFECT THE... >> I DON'T THINK IT CHANGES, IF YOU ARE ASKING ME, THE LIKELY PROBABILITY AND THE ANSWER IS NO AND THE REASON FOR THAT IS -- EXCUSE ME -- A NUMBER OF REASONS, FIRST OF ALL, MR. MAREK TOOK THE STAND IN HIS TRIAL, AND SAID HE WASN'T THERE.AND THE JURY HEARD THAT, AND, ALSO, HEARD MR. MAREK ADMITTED THAT HE WAS THE ONE THAT STARTED US OFF ON THE TREK AND HE WAS THE ONE THAT INVITED THE VICTIM TO -- HE WAS GOING TO HELP HER AND HE WAS THE ONE -- EXCUSE ME, MR. MAREK'S OWN LIPS, WE HEAR THAT HE IS THE PERSON WHO IS TAKING PART IN SETTING IS ALL IN MOTION. >> LET'S -- IN TERMS OF THAT YOU HAVE TWO MEN AND THEY HAVE STOPPED FOR PEOPLE THAT ARE BY THE SIDE OF THE ROAD, AND THOSE TWO MEN, THEY -- IS IT NOT LIKELY THAT THE DISCUSSION OCCURRED BEFORE HANDLED, WHAT THEY WERE GOING TO DO? I MEAN, YOU KNOW WHAT I'M SAYING? ANY SUGGESTION MR. MAREK HAS DECIDED ON HIS OWN, TO GO OFF ON THE PLAN, AND THAT SOMEHOW HE DRUGS WIGLEY TO GO ALONG WITH HIM. >> THAT IS NOT THE PLAN, THE PLAN IS THEY ARE DRIVING DONE THE HIGH WA AND COMING INTO FLORIDA AND HAVING A GOOD TIME, AND SEE THIS CAR AND STOP, AND RENTEDER -- TO RENDER ASSISTANCE AND MR. MAREK SAYS I'LL HELP YOU, BECAUSE SHE'S LOOKING FOR ASSISTANCE. >> BECAUSE HE IS DOING THE TALKING, HOW DOES IT MAKE THE OTHER PERSON NOT CULPABLE EQUALLY FOR WHAT HAPPENED. >> THIS COURT ON DIRECT APPEAL REVIEWED THE RECORD AND DETERMINED THAT ALONG THE WAY, WHAT MR. MAREK SAID TO THE JURY WAS FOUND TO BE CORRECT.BECAUSE, OTHER WITNESSES SAID THE SAME THING.JEAN TRACK TESTIFIED THAT SHE WAS SURVIVING -- THE SURVIVING INDIVIDUAL AND TESTIFIED MAREK SPOKE TO HER AND MAREK CAME TO THE CAR AND MAREK WHO SUGGESTED ONE OF THEM GO, AND, IT WAS THE VICTIM WHO SAID -- ASKED JEAN TO GO, AND SHE WAS AFRAID.AND SO, THE VICTIM WENT.IT WAS MAREK WHO AFTER THE MURDER ALMOST IMMEDIATELY AFTER THE MURDER WAS TALKING TO POLICE OFFICERS, AND TALKING ABOUT WHY WE'RE THERE AND HE WAS THERE, AND HE WAS IN FLORIDA, AND -- BECAUSE HE WAS LOOKING FOR COLLEGE FRIENDS.IT WAS MAREK WHO DID ALL OF THE TALKING.YOU DON'T HAVE ANY TESTIMONY, IN THE RECORD TO REFLECT OTHERWISE.AND, THE AT THE TRIAL, MAREK'S TRIAL WHILE THERE WAS A ISSUE MANY MOONS AGO WITH REGARD TO WHO, WHETHER THERE WAS A -- DISPARATE DETERMINATION AS TO WHO WAS THE ACTUAL KILLER, THE BOTTOM LINE WAS, THAT THERE WAS NOT, THE STATE IN THIS PARTICULAR CASE, MAREK'S CASE, SAID, I DON'T CARE HOW YOU DECIDE IT, WHATEVER YOU FIND MR. MAREK'S -- WHAT HE ACTUALLY DID THE MURDER OR HELPED IN THE MURDER OR WHAT HE DID, IT IS STILL FIRST DEGREE MURDER AND THAT IS WHAT HE WAS CONVICTED OF, MR. WIGLEY WAS CONVICTED OF FIRST DEGREE MURDER, ALSO, AND GOT A LIFE SENTENCE. >> AND THAT IS ALL, I THINK, I DON'T THINK, ANYTHING CHANGES THAT MR. MAREK GUILTY OF -- MAKES HIM GUILTY OF FIRST DEGREE MURDER, I GUESS THE ONLY -- WHAT WE WERE FOCUSING ON IS OUR JURISPRUDENCE THAT DEALS WITH AN EQUALLY CULPABLE PERSON, TO GET A LIFE SENTENCE, AND OTHER PORTIONALITY, IN FAIRNESS, TO THE SYSTEM, SO THAT THERE IS CREDIBILITY IN THE SYSTEM, THAT THE CODEFENDANT SHOULD ALSO GET A LIFE SENTENCE AND I THOUGHT THAT WAS THE ONLY ISSUE. >> THAT IS CORRECT BUT THERE IS NOTHING IN THE RECORD THAT CHANGED BASED ON THE VICTIMS. >> AND I GUESS THE QUESTION I ASKED WAS, IF IT WAS MR. WIGLEY THAT DID -- STRANGLED THE VICTIM, AND THAT YOU SAY THAT DOESN'T CHANGE THE CALCULUS OF THE WAY THE COURT WOULD LOOK AT THE CASE. >> FIRST OF ALL, I DON'T THINK YOU EVER FIND THAT, WE CAN THE NOT MAKE THE DETERMINATION BUT ASSUME FOR THE MOMENT WE PRESENT THE EVIDENCE WITH REGARD TO THE WITNESSES, THEY CAME IN.FIRST OF ALL, THEY HAVE TO BE TAKEN IN CONTEXT AND THE COURT RECOGNIZES THAT, AND AS I WAS GOING THROUGH THE SCENARIO OF ALL OF THESE WITNESSES EACH ONE OF THEM THAT'S A PROBLEM WITH REGARD TO THEIR CREDIBILITY, OR THEIR BELIEVEABILITY OR THE KIND OF STORY THEY ARE TELLING, BECAUSE ALL OF THE STORIES ARE DIFFERENT AND NOT THE SAME BUT, SECOND OF ALL, WE HAVE A DETERMINATION THAT, BY THAT COURT AND ALL THE COURTS THAT LOOKED AT THE CASE, THAT, IN FACT, MR. MAREK WAS THE MORE DOMINANT ONE AND NOTHING -- NOTHING -- ABOUT THE SIX WITNESSES CHANGED THAT, AND PLUS, NOW WE KNOW, NOW WE HAVE A CASE THAT IS BEFORE THE COURT -->> YES, THERE IS A DIFFERENCE AND THAT IS WHAT WE ARE TRYING TO GET TO THE BOTTOM LINE.AND THAT IS, IF WIGLEY WAS THE -- PERFORMED THE ACTUAL STRANGULATION, I THINK THAT IS THE BOTTOM LINE QUESTION.BEING PROPOUNDED, WOULD YOU RESPOND TO THAT. >> AND I'M -->> IF IT WERE FOUND -->> SURE. >> THAT MR. WIGLEY WAS ACTUALLY THE PERSON WHO COMMITTED THE STRANGULATION, WHAT HAPPENS THEN. >> I THINK AGAIN, THIS IS LIKE OTHER CASES, WHERE THE COURT HELD IT IS A MORE DOMINANT REACTION AND LAVALIER, SHE ASKED HER SON AND HE WAS ACQUITTED AND HE APPARENTLY DID THE MURDER BUT HE WAS ACQUITTED AND THE MORE DOMINANT PERSON IS ENTITLED TO GET -- AND THE COURT HELD, A NUMBER OF CASES OUT THERE, WALTON, A NUMBER OF CASES, STEIN, A NUMBER OF CASES THAT REFLECT THAT YOU HAVE A -- MORE DOMINANT FIGURE THAT PERSON IS ELIGIBLE -->> I GUESS I'M CONCERNED ABOUT, I KNOW WE HAVE THE MASTER MIND, THAT IS WHAT I WAS ASKING EARLIER, DOES IT REALLY MEAN, BECAUSE ONE PERSON IS DOING THE TALKING, I DON'T KNOW HOW, WHETHER ONE IS, MORE HANDSOME GUY THAN THE OTHER AND THEY SAID, YOU ARE THE LADIES MAN, YOU GO DO THE TALKING, YOU ARE THE SMOOTHER PERSON, I DON'T KNOW, THAT THAT ACTUALLY IS EQUIVALENT TO THE CASES WHERE THERE IS TRULY A MASTERMIND WHO IS LIKE, YOU KNOW, THAT DRIVES THE IDEA OF THIS MURDER, OR THE MURDER OF SOMEBODY'S HUSBAND OR SPOUSE AND THAT IS WHERE WE HAVE SAID, THOSE KIND OF MASTER MINDS AND WHERE THERE ARE TWO PEOPLE ACTING IN CONCERT, AND IF THERE IS A -- AN AGREEMENT, THAT ONE OF THEM IS GOING TO DO THE TALKING, I DON'T KNOW, YOU KNOW, AGAIN -- AND I -- I DON'T KNOW HOW THAT TRANSLATES INTO THAT PERSON'S BEING THE MASTER MIND.>> FIRST OF ALL, I DON'T THINK YOU HAVE THOSE FACT AND THOSE ARE NOT THE FACTS OF THE CASE, YOU DON'T HAVE ANYBODY SAYING, THAT A LEGALLY AGREED WITH MAREK THAT HE WAS GOING TO BE THE ONE THAT TALKED.THERE IS NO AGREEMENT TO THAT.THERE IS -- ALL WE HAVE IN THIS RECORD IS MAREK WAS THE ONE WHO WAS DOMINATED.OR DOMINATED THE CONVERSATION, AND MAREK WAS THE ONE THAT WENT FORWARD AND THE ONE THAT ADDRESSED AND SET THE PROCESS IN MOTION AND WE HAVE WIGLEY'S TESTIMONY, HIS TESTIMONY -- TRIAL TRANSCRIPT NOW, THAT REFLECTS THAT THE STATE SAID THAT, YOU KNOW, WIGLEY'S TRIAL, THAT YOU KNOW, WIGLEY WAS INVOLVED, TOO.BUT, IN THE RECORD, THE -- BEFORE THIS JURY WHAT WE HAD WAS THE JUDGE, JURY, KNOWING THAT IT WAS WIGLEY WHO WAS STANDING BY WITH HIS HEAD HUNG DOWN, NOT SAYING ANYTHING.HE DIDN'T ACT, HE DIDN'T DO ANYTHING. AND THAT IS WHAT WE HAVE IN THIS RECORD.MAREK DOING EVERYTHING.>> WE ALSO HAVE OTHER POTENTIAL EVIDENCE, THAT SHOWS THAT MR. WIGLEY WAS A WEAK PERSON, AND A FOLLOWER, NOT A LEADER. >> RIGHT. >> WHICH WOULD CONFIRM THE CIRCUMSTANCES THAT POINT TO MR. MAREK AS THE DOMINANT ACTOR.>> AND THAT IS MY NEXT POINT, WHAT I'M REALLY GETTING AT.BEYOND THESE SIX PEOPLE, WHO DO NOT IMPACT WHAT HAPPENED AT THIS TRIAL, IF YOU HAVE ANOTHER PENALTY PHASE OR YOU HAVE TO PUT THIS IN THE CALCULUS, OF, WE HAVE DR. CASH, DR. COOPER, WHO ALL WERE DOCTORS WHO HAD LETTERS TO THE COURT AT THAT TIME, WHO WOULD HAVE BEEN CALLING, CALLED AND YOU DO THIS REPORT, AND TALK ABOUT WHAT IN FACT THE RECORD BEARS OUT AND THAT WAS WIGLEY WAS A WIMP.HE WAS NOT A FOLLOWER, YOU HAVE EVERY ONE OF THESE WITNESSES THAT TESTIFIED AS -- AT THE EVIDENTIARY HEARING, SAYING THAT WIGLEY'S A WIMP.THEY ARE NOT CHANGING THAT.THEY ARE NOT CHANGING ANYTHING.THEY ARE NOT, NOT CUTTING INTO THE REAL ISSUE, BEFORE THE COURT.AND THAT IS, WHETHER IN FACT MAREK WAS THE DOMINANT ONE, BECAUSE THAT IS THE PREMISE UPON WHICH THE COURT AND EVERY COURT THAT LOOKED AT IT, NO MATTER WHAT THE ISSUE MAY BE, WHETHER AN -- EDMONDS ISSUE OR WHATEVER, DETERMINED THAT MAREK WAS THE PREDOMINANT ACTOR IN THIS CASE AND NOTHING -- NOTHING -- THAT WIGLEY SAID TO THESE SIX PEOPLE -- FIVE PEOPLE, BECAUSE I DON'T THINK HE TALKED TO MR. DOUGLAS, THESE FIVE PEOPLE MAKES A DIFFERENCE, IN JAIL TWO OF THESE PEOPLE SAID, WIGLEY SAID, I KILLED BEFORE AND I'LL KILL AGAIN. >> DIDN'T HE TELL ONE OF THE WITNESSES THAT HE WAS ACTUALLY THE ONE THAT TALKED TO THE WOMEN ON THE ROAD, WHICH IS REFUTED .>> YES. >> BY THE SURVIVING TRAVELING COMPANION AND HAS NO CREDIBILITY. >> RIGHT. AND, AGAIN, THEY CHANGE AND, WHAT MR. PEARSON SAID, HOW THEY FLUCTUATED, ONE OF THE STORIES WAS THAT HE DIDN'T KNOW WHEN MAREK LEFT AND FELL ASLEEP AND FOUND THE WOMAN DEAD AND DIDN'T KNOW WHERE MAREK WAS, AND THAT DOESN'T MEAN THAT HE ACTUALLY DID THE STRANGULATION, HE TELLS ONE WITNESS, THAT HE DID IT WITH HIS HANDS.HE TOLD ANOTHER ONE HE STRANGLED WITH A BANDANNA AND WE HAVE DIFFERENT STATEMENT, GOING ACROSS THE BOARD.AND SO, BASED ON WHAT WE HAVE, TAKING IN TOTO WE HAVE TO LOOK AT ALL OF THE EVIDENCE, THE TRIAL JUDGE FOUND THERE WAS NO CREDIBILITY AS TO ANY OF THESE WITNESSES, AND THAT THERE WOULD NOT BE -- WOULD NOT BE A PROBABILITY, THE OUTCOME WOULD BE DIFFERENT.THE STATE UNLESS THERE ARE OTHER QUESTIONS WOULD ASK THE COURT TO AFFIRM.THANK YOU. >> THANK YOU.
>> FIRST, AS TO JUDGE LEVINSON'S CREDIBILITY, I THINK IN CONTEXT, WHAT HE IS SAYING IS THAT HE DID NO FIND MR. WIGLEY CREDIBLE, BECAUSE, THERE WERE INCONSISTENCIES BETWEEN THE STATEMENT AND THE... TESTIFIED DID NOT NECESSARILY BELIEVE HIM.AND THERE IS NO INDICATION THAT HE FOUND AN INDIVIDUAL OTHER THAN MR. DOUGLAS, AS CREDIBLE
.AND, SECOND, AS TO BRIEFLY, ON THE DILIGENCE POINT, IT WAS INDICATED INFORMATION FROM THE STATE ATTORNEY'S OFFICE, PROSECUTING MR. WIGLEY'S MURDER IN 2011, THAT IS NOT TRUE AND IT WAS AN OPEN FILE AND... REFUSED TO PROVIDE IT AND IT WAS NOT DISCOVERED UNTIL 2009.
ALSO, MR. BANTERMAN WAS-ON-NOT ON THE LIST -- MR. BANTERMAN WAS NOT ON THE LIST, ON -- AND THAT'S THE TESTIMONY.AND ALSO, TO MAKE THIS POINT THAT AS TO WHETHER MR. PEARSON
-->> HOW, THEN, HOW WAS MR. BANTERMAN FOUND.
>> HE WAS FOUND IN THE DOC RECORDS, IN 2009, AND HE WAS TALKED TO IN 2009. HE NAME WAS IN THE DOC RECORDS IN O-1, BUT HIS NAME WAS NOT PUT ON THE LIST.AND, THE EXPLANATION WAS HE DIDN'T SEEM TO HAVE THAT CLOSE OF A CONNECTION WITH MR. WIGLEY...
>> BUT HIS NAME WAS IN THE RECORD.IN 2001.
>> YES.
>> AS TO MR. PEARSON, MR. PEARSON, NEVER
-->> DO YOU SPEND SOME TIME ON HER ARGUMENT, THE BOTTOM LINE, SHE SAYS THAT THIS REALLY DOESN'T CHANGE THE OUTCOME AS TO THE SENTENCING AND SEEMS TO BE THE HEART OF WHERE WE ARE GOING INTO YES, YOUR HONOR
AND ULTIMATELY, I GUESS, SORT OF THE HYPOTHETICAL KIND OF NOTION THAT I BELIEVE, JUSTICE PARIENTE WAS SORT OF ALLUDING TO IS, IN A SITUATION WHERE WE HAVE NEW EVIDENCE THAT IS DEFINITELY ESTABLISHING THAT MR. WIGLEY IS THE KILLER, THERE IS NO QUESTION, IT WOULD HAVE TO BE A LIFE SENTENCE.
>> THE STATE SAYS, THE STATE SAYS THAT REALLY, WHAT YOU HAVE HERE IS -- WE MAY QUIBBLE ON WORDS, BUT THE MASTERMIND, THE PERSON WHO REALLY SEDUCES OR ENTICES THIS VICTIM, INTO THE WEB, DOES ALL THE TALKING, DOES ALL THE MANIPULATION AND SECURES THE PERSON, WHAT ABOUT THAT, THAT IS WHAT SHE SAID.
>> ALL THE CASES THAT SHE IS RELYING UPON... [INAUDIBLE] THERE IS NO INDICATION... [INAUDIBLE] IN FACT ALL THE EVIDENCE IS THAT THERE WAS NO
-->> IS THAT A REQUIREMENT?
>> I THINK, THE MASTER MIND, YOU KNOW
-->> TO FALL INTO THAT CATEGORIES OF CASES.
>> I THINK ALL OF THE CASES THAT SHE CITED ARE ALL... CASES, THE PLANNED TO MAKE ARRANGEMENTS TO MURDER HER HUSBAND.AND I CAN'T REMEMBER WHAT THE OTHER CASE IS.MY RECOLLECTION IS IT INVOLVED A COLD, CALCULATED... [INAUDIBLE].
>> ARE YOU SAYING YOU CANNOT FROM THE CIRCUMSTANCES OF THE CASE, DETERMINE THAT SOMEONE IS A MASTERMIND.YOU HAVE TO HAVE THAT
-->> IT IS POSSIBLE. BUT IN THIS CASE, WHAT IS INTERESTING, IS
-->> IT'S POSSIBLE.
>> IT'S POSSIBLE AND IN THIS CASE IT IS NOT POSSIBLE, IF YOU LOOK AT WHAT HAPPENED IN MR. WIGLEY'S TRIAL,
THE... [INAUDIBLE] LOOK AT WHAT HAPPENED IN MR. WIGLEY'S TRIAL THE PROSECUTION WAS ARGUING THE SAME EVIDENCE THAT, SHOWING THIS WAS MR. WIGLEY WHO WAS THE ONE IN CONTROL.ARGUING THAT HIS SILENCE WAS OMINOUS AND ARGUING HE WAS THE ONE THEY WERE REALLY AFRAID OF.
>> I -- GO AHEAD.
>> I'M SAYING WHERE THE EVIDENCE IS AMBIGUOUS, THE PROSECUTION
-->> BUT EVIDENTLY, I MEAN, IT SEEMS TO ME THAT THERE IS SOME DISCERNMENT GOING HERE, BECAUSE HE ENDED UP WITH, YOU KNOW, A LIFE SENTENCE.AS OPPOSED TO
-->> MITIGATION.
>> SENTENCED TO DEATH.
>> MITIGATION WAS PRESENTED IN HER WIGLEY'S CASE AND NONE IN MR. MAREK'S CASE AND ONE OF THE THINGS THAT IS BEING OVERLOOKED IS THE MENTAL HEALTH EVALUATION, THE MENTAL HEALTH EVALUATION IS MR. WIGLEY WAS INSANE.
AND THAT HE DID IT IN A FRENZY.AND, SO, MR. MOLDOF TESTIFIED, IT WAS EASY TO RIP APART THE INSANITY THING THAT WAS NOT PRESENTED MT. ARE WIGLEY
-->> WHAT WERE THEIR AGES AND RELATIVE HEIGHTS.
>> MR. MAREK IS DEFINITELY TALLER, THEY WERE ABOUT THE SAME AGE.
>> WHAT WAS BOTH OF THEIR CRIMINAL HISTORIES.
>> OFF THE TOP OF MY HEAD, I DON'T REMEMBER MR. WIGLEY'S AND MR. MAREK WAS A $65 CREDIT CARD CHARGE... CONSIDERED A FELONY.
>> NO PRIOR VIOLENT FELONIES.
>> NO PRIOR VIOLENT FELONY AND THE POINT I WAS MAKING IS, WHAT DO YOU... [INAUDIBLE] IF IT IS 50/50,
THEY SHOULD GET THE SAME SENTENCE AND THAT IS WHAT THE COURT CASE LAW IS AND I DON'T THINK -- THAT'S WHY I DON'T THINK I HAVE TO PROVE... [INAUDIBLE] I THINK I HAVE TO PROVE ANYBODY THAT LOOKS AT THIS... [INAUDIBLE] JUST AS LIKELY MR. WIGLEY... [INAUDIBLE]
SO THAT'S WHY I'M ARGUING THAT EVEN IF IT IS MUDDLED AND EVEN IF YOU LOOK AT A AND DON'T KNOW WHAT HAPPENED, THAT IT SHOULD BE A LIFE SENTENCE FOR BOTH OF THEM,
AND UNDER THE PROPER ANALYSIS AND I WANTED TO MAKE THIS POINTED, MR. MOLDOF TESTIFIED HE WAS NOT... HE HAD HAD THE STATEMENTS TO PRESENTS MR. MAREK'S VERSION, THAT HE WAS OUT IN THE PICKUP TRUCK.WHEN THIS WAS GOING ON.
>> YOU HAVE USED YOUR TIME.
>> THANK YOU, YOUR HONOR.
>> THANK YOU VERY MUCH FOR YOUR ARGUMENTS, YOUR DILIGENCE AND GETTING THE BRIEFS TO US IN A VERY SHORT PERIOD OF TIME.
THANK YOU VERY MUCH.
THE COURT WILL NOW BE IN RECESS.>> PLEASE RISE.
Watch attorney Marty McClain in John Marek - oral arguments in Florida Supreme Court
Michael Conley in Broward Circuit CourtWatch from Florida Supreme Court here :
http://johnmarek.us/legal/09-1080.ram
Lawyer Marty McClain argues in Florida Supreme Court in the case of John Marek
Thursday, July 2, 2009
Notice of record citation - John Marek
http://johnmarek.us/legal/Filed_07-02-2009_Notice_Record_Citation.txt
IN THE SUPREME COURT OF FLORIDA
JOHN MAREK,
Appellant
v. CASE NO. SC09-1080
STATE OF FLORIDA,
Appellee.________________________/
NOTICE OF RECORD CITATION
COMES NOW, JOHN MAREK, by and through undersigned counsel, in the above-entitled matter and respectfully provides the record citation to evidence discussed during yesterday’s oral argument. Undersigned counsel relied upon Dr. Cash’s report in which he concluded that Raymond Wigley who had "so bitterly resent[ed his mother’s] attempts to control him as to have fantasies of harming her" had a "psychotic reaction in which all of Mr. Wigley's enraged and terrified feelings about authority figures began to boil up inside him so that he did not know that his actions were wrong" at the time of the murder of Adella Simmons. This report was introduced at the June 1-2, 2009, evidentiary hearing as State’s Exhibit 5.
I HEREBY CERTIFY that a true copy of the foregoing notice has been furnished by United States Mail, first class postage prepaid, to Carolyn Snurkowski, Assistant Deputy Attorney General, Department of Legal Affairs, The Capitol PL01,
1
Tallahassee, Florida 32399-1050, on this 2nd day of July, 2009.
MARTIN J. MCCLAIN Florida Bar No. 0754773
McClain & McDermott, P.A.Attorneys at Law141 NE 30th Street
Wilton Manors, FL 33334
(305) 984-8344
Attorney for Mr. Marek
2
IN THE SUPREME COURT OF FLORIDA
JOHN MAREK,
Appellant
v. CASE NO. SC09-1080
STATE OF FLORIDA,
Appellee.________________________/
NOTICE OF RECORD CITATION
COMES NOW, JOHN MAREK, by and through undersigned counsel, in the above-entitled matter and respectfully provides the record citation to evidence discussed during yesterday’s oral argument. Undersigned counsel relied upon Dr. Cash’s report in which he concluded that Raymond Wigley who had "so bitterly resent[ed his mother’s] attempts to control him as to have fantasies of harming her" had a "psychotic reaction in which all of Mr. Wigley's enraged and terrified feelings about authority figures began to boil up inside him so that he did not know that his actions were wrong" at the time of the murder of Adella Simmons. This report was introduced at the June 1-2, 2009, evidentiary hearing as State’s Exhibit 5.
I HEREBY CERTIFY that a true copy of the foregoing notice has been furnished by United States Mail, first class postage prepaid, to Carolyn Snurkowski, Assistant Deputy Attorney General, Department of Legal Affairs, The Capitol PL01,
1
Tallahassee, Florida 32399-1050, on this 2nd day of July, 2009.
MARTIN J. MCCLAIN Florida Bar No. 0754773
McClain & McDermott, P.A.Attorneys at Law141 NE 30th Street
Wilton Manors, FL 33334
(305) 984-8344
Attorney for Mr. Marek
2
Notice of proffer filed in John Marek
http://johnmarek.us/legal/Filed_07-02-2009_Notice_Proffer.pdf
IN THE SUPREME COURT OF FLORIDA
JOHN MAREK, Appellant
v. CASE NO. SC09-1080
STATE OF FLORIDA, Appellee.
-----------,
NOTICE OF PROFFER
COMES NOW, JOHN MAREK, by and through unders~gned counsel, in the above-entitled matter and respectfully provides this notice of a proffer from Leon Douglass as to what he would testify to at a hearing on the motion to correct the transcript. Due to the difficulty of obtaining access to incarcerated prisoners, it was not possible to arranged to obtain the affidavit sooner.
I HEREBY CERTIFY that a true copy of the foregoing notice has been furnished by United States Mail, first class postage prepaid, to Carolyn Snurk0wski, Assistant Deputy Attorney
General, Department of Legal Affairs, The Capitol PLOl, Tallahassee, Florida 32399-1050, on this 2nd day of July, 2009.
MARTIN J. MCCLAIN Florida Bar-No. 0754773 McClain & McDermott, P.A. Attorneys at Law 141 NE 30th Street Wilton Manors, FL 33334
1
(305) 984-8344
Attorney for Mr. Marek
2 ~ -------~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~-
STATE OF FLORIDA )
)
COUNTY OF MADISON )
AFFIDAVIT
I, Leon Douglas, having been du1y sworn or affirmed, do hereby depose and say:
My name is Leon Douglas, De# 541168. I am currently incarcerated at Madison Couectional Institution.
On June L2009. I testified in Broward County in the case of Marek v. State in regards to my knowledge of an individuall knew as Raymond Wigley.
During my testimony I was asked to describe Wigley, and I described him as best as I could remember.
I have now reviewed a transcript of my testimony. In the transcript, I am attributed withdescribing Wigley as a black male. I am sure the transcript is inaccurate. I am well aware that Raymond Wigley was a white male. I cannot imagine ever describing him as a black male unless I misspoke. I know that if asked what was Wigley's race, I wou1d have stated he was white.
Prior to my testimony I identified Raymond Wigley's photograph to both Investigator Daniel Ashton and Attorney Linda McDermott. The photograph was of a white male who was the Raymond Wigley that I knew.
Further affiant sayeth nau .' .
:/~i--
Leon Douglas
h Sworn and bscribed before me this ~D day of JWle 2009, by Leon Douglas who is
personally known to me or has produced the following identification:
~;c.*" 5"41 ~ Vi>
~. Daniel J. Ashton ~lJ.
~ .~ COOlllission" 00527915
~"j • :: Expi'es Matd1 20. 2010
~~otary Pu~li1State .of onda? My comnusyon explIes: .~ • 8oJ'IIo01ttJr~;;jft.---.~~
IN THE SUPREME COURT OF FLORIDA
JOHN MAREK, Appellant
v. CASE NO. SC09-1080
STATE OF FLORIDA, Appellee.
-----------,
NOTICE OF PROFFER
COMES NOW, JOHN MAREK, by and through unders~gned counsel, in the above-entitled matter and respectfully provides this notice of a proffer from Leon Douglass as to what he would testify to at a hearing on the motion to correct the transcript. Due to the difficulty of obtaining access to incarcerated prisoners, it was not possible to arranged to obtain the affidavit sooner.
I HEREBY CERTIFY that a true copy of the foregoing notice has been furnished by United States Mail, first class postage prepaid, to Carolyn Snurk0wski, Assistant Deputy Attorney
General, Department of Legal Affairs, The Capitol PLOl, Tallahassee, Florida 32399-1050, on this 2nd day of July, 2009.
MARTIN J. MCCLAIN Florida Bar-No. 0754773 McClain & McDermott, P.A. Attorneys at Law 141 NE 30th Street Wilton Manors, FL 33334
1
(305) 984-8344
Attorney for Mr. Marek
2 ~ -------~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~-
STATE OF FLORIDA )
)
COUNTY OF MADISON )
AFFIDAVIT
I, Leon Douglas, having been du1y sworn or affirmed, do hereby depose and say:
My name is Leon Douglas, De# 541168. I am currently incarcerated at Madison Couectional Institution.
On June L2009. I testified in Broward County in the case of Marek v. State in regards to my knowledge of an individuall knew as Raymond Wigley.
During my testimony I was asked to describe Wigley, and I described him as best as I could remember.
I have now reviewed a transcript of my testimony. In the transcript, I am attributed withdescribing Wigley as a black male. I am sure the transcript is inaccurate. I am well aware that Raymond Wigley was a white male. I cannot imagine ever describing him as a black male unless I misspoke. I know that if asked what was Wigley's race, I wou1d have stated he was white.
Prior to my testimony I identified Raymond Wigley's photograph to both Investigator Daniel Ashton and Attorney Linda McDermott. The photograph was of a white male who was the Raymond Wigley that I knew.
Further affiant sayeth nau .' .
:/~i--
Leon Douglas
h Sworn and bscribed before me this ~D day of JWle 2009, by Leon Douglas who is
personally known to me or has produced the following identification:
~;c.*" 5"41 ~ Vi>
~. Daniel J. Ashton ~lJ.
~ .~ COOlllission" 00527915
~"j • :: Expi'es Matd1 20. 2010
~~otary Pu~li1State .of onda? My comnusyon explIes: .~ • 8oJ'IIo01ttJr~;;jft.---.~~
MOTION FOR CORRECTION OF TRANSCRIPT - John Marek
http://johnmarek.us/legal/motiontocorrectthetranscript.htm
IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT, IN AND FOR BROWARD COUNTY, FLORIDA
CASE NO. 83-7088CF-B
STATE OF FLORIDA,
Plaintiff,
v.
JOHN MAREK,
Defendant.
__________________________/
MOTION FOR CORRECTION OF TRANSCRIPT
COMES NOW the Defendant, JOHN MAREK, by and through undersigned counsel, and herein respectfully requests that a hearing be held to correct the transcript. In support of this motion, Mr. Marek states:
1. Mr. Marek’s counsel is in receipt of the transcript that has been prepared reflecting the testimony at last week’s evidentiary hearing. However, counsel believes that the transcript contains an error in the transcription of the testimony of Leon Douglass. On page 145 of the transcript, the cross-examination of Mr. Douglass is in progress. The transcript shows the following:
Q. What does he look like?
A. He was a black male, kind of skinny, brownish/blackish hair, dark-colored hair, if you will, five-foot-seven, eight. Any other description you’d like for me to give?
Q. Weight?
A. Probably 150 pounds, 160 pounds.
(June 1st transcript at 145).
2. Counsel is absolutely certain that he did not hear any statement by Mr. Douglass describing Mr. Wigley as a black male. Certainly, had such a statement been made, Ms. Bailey would have immediately asked in her condescending tone, "Are you telling us that Mr. Wigley was a black male?" Since Ms. Bailey did not make any reference to such a glaring error, it is clear that she did not hear Mr. Douglass describe Mr. Wigley as a black male.
3. Moreover, it would make no sense for Mr. Douglass to describe Mr. Wigley as a black male and then proceed to describe his hair color as "brownish/blackish hair, dark-colored hair, if you will" (June 1st transcript at 145), since a black male is presumably going to have dark-colored hair. A black male’s hair color is only addressed if it is not dark-colored.
4. Further, had counsel heard Mr. Douglass describe Mr. Wigley as a black male, he would have addressed such a description in redirect. Counsel knew that Mr. Douglass described Mr. Wigley as a white male to Mr. Ashton. Counsel knew that Mr. Douglass had correctly identified a picture of Mr. Wigley as the man that he knew when shown the picture by Mr. Ashton. Counsel knew that Mr. Douglass had correctly described Mr. Wigley as a white male to Ms. McDermott when she spoke to him. Had he heard Mr. Douglass describe Mr. Wigley as a black male, not only would he have pursued the matter in redirect, he would have questioned Mr. Ashton and Ms. McDermott regarding Mr. Douglass’ description of Mr. Wigley to them, and his ability to correctly identify a photograph of Mr. Wigley.
WHEREFORE, Mr. Marek requests a hearing to address the accuracy of the transcription of the portion of the testimony and to correct the transcript.
I HEREBY CERTIFY that a true copy of the foregoing motion has been furnished by electronic mail and U.S. Mail, postage prepaid, to all counsel of record on June 12, 2009.
___________________________________
MARTIN J. McCLAIN
Florida Bar No. 0754773
McClain & McDermott, P.A.
Attorneys at Law
141 N.E. 30th Street
Wilton Manors, FL 33334
(305) 984-8344
Counsel for Mr. Marek
Copies furnished to:
Susan Bailey
Assistant State Attorney
Broward County Courthouse
201 SE 6th Street
Room 675
Ft. Lauderdale, FL 33301-3304
Carolyn Snurkowski
Assistant Attorney General
Department of Legal Affairs
The Capitol PL01
Tallahassee, Florida 32399-1050
IN THE CIRCUIT COURT OF THE SEVENTEENTH JUDICIAL CIRCUIT, IN AND FOR BROWARD COUNTY, FLORIDA
CASE NO. 83-7088CF-B
STATE OF FLORIDA,
Plaintiff,
v.
JOHN MAREK,
Defendant.
__________________________/
MOTION FOR CORRECTION OF TRANSCRIPT
COMES NOW the Defendant, JOHN MAREK, by and through undersigned counsel, and herein respectfully requests that a hearing be held to correct the transcript. In support of this motion, Mr. Marek states:
1. Mr. Marek’s counsel is in receipt of the transcript that has been prepared reflecting the testimony at last week’s evidentiary hearing. However, counsel believes that the transcript contains an error in the transcription of the testimony of Leon Douglass. On page 145 of the transcript, the cross-examination of Mr. Douglass is in progress. The transcript shows the following:
Q. What does he look like?
A. He was a black male, kind of skinny, brownish/blackish hair, dark-colored hair, if you will, five-foot-seven, eight. Any other description you’d like for me to give?
Q. Weight?
A. Probably 150 pounds, 160 pounds.
(June 1st transcript at 145).
2. Counsel is absolutely certain that he did not hear any statement by Mr. Douglass describing Mr. Wigley as a black male. Certainly, had such a statement been made, Ms. Bailey would have immediately asked in her condescending tone, "Are you telling us that Mr. Wigley was a black male?" Since Ms. Bailey did not make any reference to such a glaring error, it is clear that she did not hear Mr. Douglass describe Mr. Wigley as a black male.
3. Moreover, it would make no sense for Mr. Douglass to describe Mr. Wigley as a black male and then proceed to describe his hair color as "brownish/blackish hair, dark-colored hair, if you will" (June 1st transcript at 145), since a black male is presumably going to have dark-colored hair. A black male’s hair color is only addressed if it is not dark-colored.
4. Further, had counsel heard Mr. Douglass describe Mr. Wigley as a black male, he would have addressed such a description in redirect. Counsel knew that Mr. Douglass described Mr. Wigley as a white male to Mr. Ashton. Counsel knew that Mr. Douglass had correctly identified a picture of Mr. Wigley as the man that he knew when shown the picture by Mr. Ashton. Counsel knew that Mr. Douglass had correctly described Mr. Wigley as a white male to Ms. McDermott when she spoke to him. Had he heard Mr. Douglass describe Mr. Wigley as a black male, not only would he have pursued the matter in redirect, he would have questioned Mr. Ashton and Ms. McDermott regarding Mr. Douglass’ description of Mr. Wigley to them, and his ability to correctly identify a photograph of Mr. Wigley.
WHEREFORE, Mr. Marek requests a hearing to address the accuracy of the transcription of the portion of the testimony and to correct the transcript.
I HEREBY CERTIFY that a true copy of the foregoing motion has been furnished by electronic mail and U.S. Mail, postage prepaid, to all counsel of record on June 12, 2009.
___________________________________
MARTIN J. McCLAIN
Florida Bar No. 0754773
McClain & McDermott, P.A.
Attorneys at Law
141 N.E. 30th Street
Wilton Manors, FL 33334
(305) 984-8344
Counsel for Mr. Marek
Copies furnished to:
Susan Bailey
Assistant State Attorney
Broward County Courthouse
201 SE 6th Street
Room 675
Ft. Lauderdale, FL 33301-3304
Carolyn Snurkowski
Assistant Attorney General
Department of Legal Affairs
The Capitol PL01
Tallahassee, Florida 32399-1050
Saturday, June 27, 2009
MOTION TO STRIKE STATE’S NOTICE OF COMPLIANCE in John Marek
IN THE SUPREME COURT OF FLORIDA JOHN MAREK, Appellant
v. CASE NO. SC09-821 STATE OF FLORIDA, Appellee.
________________________/ MOTION TO STRIKE STATE’S NOTICE OF COMPLIANCE
COMES NOW, JOHN MAREK, by and through undersigned counsel, in the above-entitled matter and respectfully requests that this Court strike the “State’s Notice of Compliance; Request for Briefing Schedules and Motion to Consolidate Successive Postconviction Motions” as an unauthorized pleading that misrepresents the status of proceedings in circuit court.
For his reasons, Mr. Marek states:
1. On June 22, 2009, undersigned counsel received in electronic form the pleading entitled “State’s Notice of Compliance; Request for Briefing Schedules and Motion to Consolidate Successive Postconviction Motions.”
2. This pleading is utterly baffling.
Since when does one party get to announce to this Court that “compliance” has occurred in totally disregard of the other party’s due process rights.1
The State asserts in this pleading “that the May 21, 2009, remand order has been complied with”. Notice of Complianceat 2.
Is Mr. Marek’s participation in the litigation completely unnecessary and superfluous?
Is the fix in?
Is it just for the State and the courts to get together and figure out how to
Glaringly absent from this “Notice” is any discussion of
the fact that Mr. Marek has a right to file a motion for
rehearing under Rule 3.851(f)(5)(7), and that there are glaring
errors in the circuit court’s orders that call for a motion for
rehearing.2
The proceedings are not over in circuit court until proceed?
Mr. Marek does not believe that the proceedings in the circuit court are completed.
Doesn’t that count?
2For example, in clear violation of Rule 3.851 the circuit court did not conduct a case management conference on Mr. Marek’sRule 3.851 motion filed on June 12, 2009.
Rule 3.851(f)(5)(B)provides in pertinent part: “Within 30 days after the state files its answer to a successive motion for postconviction relief, the trial court shall hold a case management conference.” (Emphasisadded).
The case management conference is required by due process as explained in Huff v. State, 622 So. 2d 982 (Fla.1993), in order to allow the movant an opportunity to orally argue the basis of the motion to vacate and/or the need for evidentiary development. The circuit court discard the requirement in Rule 3.851(f)(5)(B) like yesterday’s newspaper, as if Mr. Marek’s due process right under Huff are of no import.
The circuit court also cast aside Mr. Marek’s challenge to the accuracy of the transcript of Leon Douglass’ testimony without affording Mr. Marek to present his evidence that the transcript is in error and without allowing the parties an opportunity to listen to the backup tape of the testimony.
Before undersigned counsel filed the motion to correct the transcript, he called the court reporter who immediately said that he knew exactly what aspect of the transcript counsel was going to inquire about. Later in the conversation the court reporter explained that he too had been surprised by the quote attributed to Leon Douglass in the transcript.
The court reporter advised that he did not recall Mr. Douglass describing Raymond Wigley as a black male, but that was what it soundly like Mr. Douglass said on the backup tape. The court reporter offered to play the tape for counsel. When he attempted to arrange for counsel to hear the tape over the telephone, however, counsel was unable to hear anything other than just the sound of voices - the words were indecipherable. The circuit court’s refusal to permit evidentiary development regarding the accuracy of the transcript
Mr. Marek’s motions for rehearing have been heard and resolved and until Mr. Marek files a notice or notices of appeal.
Until that time this Court lacks jurisdiction and the State’s notice is unauthorized.
I HEREBY CERTIFY that a true copy of the foregoing motion has been furnished by United States Mail, first class postage prepaid, to Carolyn Snurkowski, Assistant Deputy Attorney General, Department of Legal Affairs, The Capitol PL01, Tallahassee, Florida 32399-1050, on this 23rd day of June, 2009.
MARTIN J. MCCLAIN Florida Bar No. 0754773 McClain & McDermott, P.A.Attorneys at Law141 NE 30th Street Wilton Manors, FL 33334
(305) 984-8344
Attorney for Mr. Marek
violated Mr. Marek’s due process rights.
Finally as to the order denying Mr. Marek’s newly discovered evidence claim, the circuit court describes Raymond Wigley’s statements as not credible. In reaching this conclusion, the circuit court relied upon the testimony of Bannerman, Pearson,Conley, Mitchell and Green to conclude that Raymond Wigley’s statements that he committed the murder were not necessary true.
The circuit court’s reasoning ignores the fact that the testimony of Banner, Pearson, Conley, Mitchell, and Green would have led to the introduction of Wigley’s life sentence at Mr. Marek’s penalty phase.
The issue is not whether the jury would have likely believed Wigley’s statements, but whether the introduction of those statements and the fact that he received a life sentence would have led to a different outcome before the jury, on direct appeal, or in postconviction. In this regard, the circuit court completely overlooked what in fact was and is Mr. Marek’s claim.
v. CASE NO. SC09-821 STATE OF FLORIDA, Appellee.
________________________/ MOTION TO STRIKE STATE’S NOTICE OF COMPLIANCE
COMES NOW, JOHN MAREK, by and through undersigned counsel, in the above-entitled matter and respectfully requests that this Court strike the “State’s Notice of Compliance; Request for Briefing Schedules and Motion to Consolidate Successive Postconviction Motions” as an unauthorized pleading that misrepresents the status of proceedings in circuit court.
For his reasons, Mr. Marek states:
1. On June 22, 2009, undersigned counsel received in electronic form the pleading entitled “State’s Notice of Compliance; Request for Briefing Schedules and Motion to Consolidate Successive Postconviction Motions.”
2. This pleading is utterly baffling.
Since when does one party get to announce to this Court that “compliance” has occurred in totally disregard of the other party’s due process rights.1
The State asserts in this pleading “that the May 21, 2009, remand order has been complied with”. Notice of Complianceat 2.
Is Mr. Marek’s participation in the litigation completely unnecessary and superfluous?
Is the fix in?
Is it just for the State and the courts to get together and figure out how to
Glaringly absent from this “Notice” is any discussion of
the fact that Mr. Marek has a right to file a motion for
rehearing under Rule 3.851(f)(5)(7), and that there are glaring
errors in the circuit court’s orders that call for a motion for
rehearing.2
The proceedings are not over in circuit court until proceed?
Mr. Marek does not believe that the proceedings in the circuit court are completed.
Doesn’t that count?
2For example, in clear violation of Rule 3.851 the circuit court did not conduct a case management conference on Mr. Marek’sRule 3.851 motion filed on June 12, 2009.
Rule 3.851(f)(5)(B)provides in pertinent part: “Within 30 days after the state files its answer to a successive motion for postconviction relief, the trial court shall hold a case management conference.” (Emphasisadded).
The case management conference is required by due process as explained in Huff v. State, 622 So. 2d 982 (Fla.1993), in order to allow the movant an opportunity to orally argue the basis of the motion to vacate and/or the need for evidentiary development. The circuit court discard the requirement in Rule 3.851(f)(5)(B) like yesterday’s newspaper, as if Mr. Marek’s due process right under Huff are of no import.
The circuit court also cast aside Mr. Marek’s challenge to the accuracy of the transcript of Leon Douglass’ testimony without affording Mr. Marek to present his evidence that the transcript is in error and without allowing the parties an opportunity to listen to the backup tape of the testimony.
Before undersigned counsel filed the motion to correct the transcript, he called the court reporter who immediately said that he knew exactly what aspect of the transcript counsel was going to inquire about. Later in the conversation the court reporter explained that he too had been surprised by the quote attributed to Leon Douglass in the transcript.
The court reporter advised that he did not recall Mr. Douglass describing Raymond Wigley as a black male, but that was what it soundly like Mr. Douglass said on the backup tape. The court reporter offered to play the tape for counsel. When he attempted to arrange for counsel to hear the tape over the telephone, however, counsel was unable to hear anything other than just the sound of voices - the words were indecipherable. The circuit court’s refusal to permit evidentiary development regarding the accuracy of the transcript
Mr. Marek’s motions for rehearing have been heard and resolved and until Mr. Marek files a notice or notices of appeal.
Until that time this Court lacks jurisdiction and the State’s notice is unauthorized.
I HEREBY CERTIFY that a true copy of the foregoing motion has been furnished by United States Mail, first class postage prepaid, to Carolyn Snurkowski, Assistant Deputy Attorney General, Department of Legal Affairs, The Capitol PL01, Tallahassee, Florida 32399-1050, on this 23rd day of June, 2009.
MARTIN J. MCCLAIN Florida Bar No. 0754773 McClain & McDermott, P.A.Attorneys at Law141 NE 30th Street Wilton Manors, FL 33334
(305) 984-8344
Attorney for Mr. Marek
violated Mr. Marek’s due process rights.
Finally as to the order denying Mr. Marek’s newly discovered evidence claim, the circuit court describes Raymond Wigley’s statements as not credible. In reaching this conclusion, the circuit court relied upon the testimony of Bannerman, Pearson,Conley, Mitchell and Green to conclude that Raymond Wigley’s statements that he committed the murder were not necessary true.
The circuit court’s reasoning ignores the fact that the testimony of Banner, Pearson, Conley, Mitchell, and Green would have led to the introduction of Wigley’s life sentence at Mr. Marek’s penalty phase.
The issue is not whether the jury would have likely believed Wigley’s statements, but whether the introduction of those statements and the fact that he received a life sentence would have led to a different outcome before the jury, on direct appeal, or in postconviction. In this regard, the circuit court completely overlooked what in fact was and is Mr. Marek’s claim.
Florida Supreme Court scheduling order in John Marek
Supreme Court of Florida
TUESDAY, JUNE 23,2009
CASE NO.: SC65821 Lower Tribunal No(s).: 83-7088 CF lOB
JOHN RICHARD MAREK vs. STATE OF FLORIDA
Appellant(s) Appellee(s)
Any appeal from the trial court's two orders issued June 19,2009, denying Marek's motions for postconviction relief filed on May 1, 2009, and June 12, 2009, shall be consolidated and shall proceed as follows: Appellant's notice of appeal and initial brief on the merits shall be filed by 5:00 pm, Wednesday, June 24, 2009; appellee's answer brief shall be filed by 5:00 pm, Thursday, June 25, 2009; and appellant's ~~ply brief shall be filed by 5:00 pm, Friday, June 26, 2009. Service of the briefs to ';opposing counsel shall be made via e-mail. Filing of the above briefs at this Court shall be by transmitting the brief via e-mail to the following address: warrant@f1courts.org. Counsel shall transmit only the signed original brief to this court as soon as possible after filing via e-mail.
The trial court clerk shall file the record on appeal by 5:00 pm, Wednesday, June 24, 2009. An electronic copy of the record may be transmitted to warrant@f1courts.org.
Per this Court's Administrative Order In Re: Mandatory Submission of Electronic Cpopies of Documents, AOSC04-84, dated September 13,2004, counsel are directedtto transmit a copy of all briefs in an electronic format as required by the provisions of that order.
CASE NO.:,SC65821 PAGE TWO
The above case is hereby scheduled for oral argument at 9:00 am, Wednesday, July 1, 2009. A maximum of twenty minutes to the side is allowed for the argument, but counsel is expected to use only so much of that time as is necessary.
A True Copy Test:
"lllllI18,S D ~ Hall (=~lerl{, SlllJrellle (=~Olu't
th Served:
HON. MICHAEL J. SATZ MARTIN J. MCCLAIN CELIA A. TERENZIO CAROLYNV. MC CANN CAROLYN M. SNURKOWSKI HON. HOWARD FORMAN, CLERK HON. JEFFREY R. LEVENSON, JUDGE
TUESDAY, JUNE 23,2009
CASE NO.: SC65821 Lower Tribunal No(s).: 83-7088 CF lOB
JOHN RICHARD MAREK vs. STATE OF FLORIDA
Appellant(s) Appellee(s)
Any appeal from the trial court's two orders issued June 19,2009, denying Marek's motions for postconviction relief filed on May 1, 2009, and June 12, 2009, shall be consolidated and shall proceed as follows: Appellant's notice of appeal and initial brief on the merits shall be filed by 5:00 pm, Wednesday, June 24, 2009; appellee's answer brief shall be filed by 5:00 pm, Thursday, June 25, 2009; and appellant's ~~ply brief shall be filed by 5:00 pm, Friday, June 26, 2009. Service of the briefs to ';opposing counsel shall be made via e-mail. Filing of the above briefs at this Court shall be by transmitting the brief via e-mail to the following address: warrant@f1courts.org. Counsel shall transmit only the signed original brief to this court as soon as possible after filing via e-mail.
The trial court clerk shall file the record on appeal by 5:00 pm, Wednesday, June 24, 2009. An electronic copy of the record may be transmitted to warrant@f1courts.org.
Per this Court's Administrative Order In Re: Mandatory Submission of Electronic Cpopies of Documents, AOSC04-84, dated September 13,2004, counsel are directedtto transmit a copy of all briefs in an electronic format as required by the provisions of that order.
CASE NO.:,SC65821 PAGE TWO
The above case is hereby scheduled for oral argument at 9:00 am, Wednesday, July 1, 2009. A maximum of twenty minutes to the side is allowed for the argument, but counsel is expected to use only so much of that time as is necessary.
A True Copy Test:
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th Served:
HON. MICHAEL J. SATZ MARTIN J. MCCLAIN CELIA A. TERENZIO CAROLYNV. MC CANN CAROLYN M. SNURKOWSKI HON. HOWARD FORMAN, CLERK HON. JEFFREY R. LEVENSON, JUDGE
STATE'S NOTICE OF COMPLIANCE; REQUEST FOR BRIEFING SCHEDULES AND
IN THE SUPREME COURT OF FLORIDA
JOHN RICHARD MAREK,
Appellant,
v. CASE NO. SC09-821
STATE OF FLORIDA, Appellee.
STATE'S NOTICE OF COMPLIANCE; REQUEST FOR BRIEFING SCHEDULES AND MOTION TO CONSOLIDATE SUCCESSIVE POSTCONVICTION MOTIONS
The State files this Notice of Compliancei Request For Briefing Schedules and Motion to Consolidate Successive Postconviction Motions and would show:
1. On Friday, June 19, 2009, the trial court, after evidentiary hearing held June 1-2, 2009, entered its Orders denying all postconviction review following this Court's May 21, 2009, Order, reversing and remanding for a new evidentiary hearing before another judge of the Seventeenth Judicial Circuit in the above styled cause. 2. The Orders entered resolved not only the pending successive motion filed on May I, 2009, but in a separate order, the trial court also determined, without further evidentiary
review, Marek's fourth postconviction motion filed June 12, 2009.
3. The State would submit that the May 21, 2009, remand order has been complied with and requests that a briefing schedule for appellate review be expedited to allow the matter to move forward since a stay of execution currently remains in place. Many of the legal issues have not changed and the factual matters were briefed in the written closing arguments of the parties.' Therefore, an expedited briefing schedule is in order. 4. The State would also request consolidation of Marek's "May I, 2009, third and, June 12, 2009, fourth successive motions for postconviction review", for briefing and oral
argument purposes since, they are inextricably intertwined regarding Marek's issues as to Judge Kaplan's and defense counsel's, Moldof's, representation of Marek.
CONCLUSION
In light of the special circumstances of this case and the expedited scheduling thus far imposed in the instant case, the State respectfully requests this Court grant the instant motions in toto.
2
Respectfully submitted,
BILL McCOLLUM ATTORNEY GENERAL
CAROLYN M. SNURKOWSKI ASSISTANT ATTORNEY GENERAL FLORIDA BAR NO. 158541 OFFICE OF THE ATTORNEY GENERAL PL-01, THE CAPITOL TALLAHASSEE, FL 32399-1050
(850) 414-3300 COUNSEL FOR PLAINTIFF
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing STATE'S NOTICE OF COMPLIANCE; REQUEST FOR BRIEFING SCHEDULES AND MOTION TO CONSOLIDATE SUCCESSIVE POSTCONVICTION MOTIONS has been furnished via e-mail to martymcclain@earthlink.net, lindammcdermott@msn.com, jlevenso@17th.flcourts.org, CMcCann@sao17.state.fl.us, & sbailey@sao17.state.fl.us and via U.S. mail to Martin J. McClain, McClain & McDermott, PA, 141 NE 30th Street, Wilton Manors, FL 33334, this 22nd day of June, 2009.
Carolyn M. Snurkowski Attorney for Plaintiff
3
JOHN RICHARD MAREK,
Appellant,
v. CASE NO. SC09-821
STATE OF FLORIDA, Appellee.
STATE'S NOTICE OF COMPLIANCE; REQUEST FOR BRIEFING SCHEDULES AND MOTION TO CONSOLIDATE SUCCESSIVE POSTCONVICTION MOTIONS
The State files this Notice of Compliancei Request For Briefing Schedules and Motion to Consolidate Successive Postconviction Motions and would show:
1. On Friday, June 19, 2009, the trial court, after evidentiary hearing held June 1-2, 2009, entered its Orders denying all postconviction review following this Court's May 21, 2009, Order, reversing and remanding for a new evidentiary hearing before another judge of the Seventeenth Judicial Circuit in the above styled cause. 2. The Orders entered resolved not only the pending successive motion filed on May I, 2009, but in a separate order, the trial court also determined, without further evidentiary
review, Marek's fourth postconviction motion filed June 12, 2009.
3. The State would submit that the May 21, 2009, remand order has been complied with and requests that a briefing schedule for appellate review be expedited to allow the matter to move forward since a stay of execution currently remains in place. Many of the legal issues have not changed and the factual matters were briefed in the written closing arguments of the parties.' Therefore, an expedited briefing schedule is in order. 4. The State would also request consolidation of Marek's "May I, 2009, third and, June 12, 2009, fourth successive motions for postconviction review", for briefing and oral
argument purposes since, they are inextricably intertwined regarding Marek's issues as to Judge Kaplan's and defense counsel's, Moldof's, representation of Marek.
CONCLUSION
In light of the special circumstances of this case and the expedited scheduling thus far imposed in the instant case, the State respectfully requests this Court grant the instant motions in toto.
2
Respectfully submitted,
BILL McCOLLUM ATTORNEY GENERAL
CAROLYN M. SNURKOWSKI ASSISTANT ATTORNEY GENERAL FLORIDA BAR NO. 158541 OFFICE OF THE ATTORNEY GENERAL PL-01, THE CAPITOL TALLAHASSEE, FL 32399-1050
(850) 414-3300 COUNSEL FOR PLAINTIFF
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing STATE'S NOTICE OF COMPLIANCE; REQUEST FOR BRIEFING SCHEDULES AND MOTION TO CONSOLIDATE SUCCESSIVE POSTCONVICTION MOTIONS has been furnished via e-mail to martymcclain@earthlink.net, lindammcdermott@msn.com, jlevenso@17th.flcourts.org, CMcCann@sao17.state.fl.us, & sbailey@sao17.state.fl.us and via U.S. mail to Martin J. McClain, McClain & McDermott, PA, 141 NE 30th Street, Wilton Manors, FL 33334, this 22nd day of June, 2009.
Carolyn M. Snurkowski Attorney for Plaintiff
3
The Florida cases where doghandler John Preston was involved
Juan RamosJuan Ramos stands next to Norm Wolfinger, then a public defender, in court. Ramos was sentenced to death in the 1982 rape and murder of a neighbor, but was granted a second trial and in 1987 was acquitted. (1983 FLORIDA TODAY file)
The cases
In an ongoing investigation, FLORIDA TODAY is studying documents, newspaper clippings and microfilm to learn about the cases in which John Preston was involved.
They include:
Gary Bennett, sentenced to life in prison in for the 1983 murder of a woman neighbor in Palm Bay.
Frank Berry, sentenced to 124 years in prison for raping a Merritt Island woman in 1981.
Scott Carroll, a serial rapist suspected in numerous Brevard County cases, tried and convicted in New York where he remains in prison.
Wilton Dedge, exonerated and released in 2004 after spending 22 years in prison for a 1981 rape that DNA evidence showed he didn't commit.
William Dillon, charges dropped last year after DNA evidence excluded him from being connected to a key piece of evidence. Dillon spent 27 years in prison for a 1981 murder.
Gary Dirk, sentenced to life in prison for burglary and rape in 1985.
James Elmen, 17 years old when a jury acquitted him of burglary and murder charges in 1984.
Mark Wayne Jones, serving double life sentences for the murders of two Titusville women to whom he had given a ride in 1981.
Elton Kimbrough and Kenneth Michael Burch, murder charges dropped, sentenced to 10 years on burglary charges, in the robbery and death of an 89-year-old Titusville woman. All charges were dropped against two other men.
Juan Ramos, found not guilty during a second trial in 1987 after being sentenced to death for rape and murder of a neighbor in 1982.
Willie Jessie Snipes, paroled in 1986 after serving four years for manslaughter that occurred during a robbery in 1981.
Gerald Stano, a serial killer who confessed to 41 murders. He was convicted in Brevard County for the murder of 17-year-old Cathy Lee Scharf in 1983 and executed.
Christopher Wilder, a serial killer who was killed during a struggle with Massachusetts police in 1984. He was accused of murdering a Satellite Beach resident earlier that year.
Eugene Wiley, served 11 years for second-degree murder in the death of a Saudi Arabian exchange student in an alleged drug deal
The testimony of Jessie Bannerman, Robert Pearson, Michael Conley, Leon Douglass, Carl Mitchell and William Green in John Marek
In fact when this Court issued its opinion in State v.Mills, it simply stated:
As to Mills’ first claim, the trial court foundthat the evidence Mills presented met the test fornewly discovered evidence as enunciated in Jones v.State, 709 So. 2d 512, 519 (Fla. 1998). We agree. The evidence presented by Anderson was unknown at the timeof trial and neither Mills nor his counsel could have discovered it with due diligence, the evidence wouldhave been admissible at trial, if only for impeachment;and the newly discovered evidence, when considered inconjunction with the evidence at Mills’ trial and 3.850proceedings, would have probably produced a differentresult at sentencing.
State v. Mills, 788 So. 2d at 250. Thus, it is clear thatcomplete procedural history of Mr. Mills’ case and the analysisof the issues raised at every step in the process did not andcould not establish a res adjudicata bar.
was not in the record at the time of the direct appeal and thus it was not considered by this Court when it issued its opinion affirming Mr. Marek’s sentence of death.2
In the 1988 proceedings on Mr. Marek’s a motion to vacate, the State seems to suggest that the outcome there has some bearing on the decision of the newly discovered evidence claim against Mr. Marek. However in 1988 at the time of the “initial” Rule 3.850 motion, the testimony of Jessie Bannerman, Robert Pearson, Michael Conley, Leon Douglass, Carl Mitchell and William Green was not known or presented, nor for that matter was any testimony presented regarding statements made by Raymond Wigley that he killed Adela Simmons while Mr. Marek slept in the pickup truck. The evidence that has been presented now was not in the record at the time of the “initial” Rule 3.850 was heard and denied, and thus this evidence was not considered or addressed by either the circuit court or this Court when Mr. Marek was denied collateral relief.3
Similarly, the State seems to suggest that to the Eleventh Circuit’s affirmance of the denial of Mr. Marek’s petition for federal habeas relief is somehow binding and has decided the
2The circumstances here are identical to the circumstances in State v. Mills where the testimony of Anderson that the codefendant, Ashley, admitted to him that he was the triggerman hadnot been presented at trial and was not of record at the time ofthe direct appeal.
3The circumstances here are identical to the circumstances in State v. Mills where the testimony of Anderson that the codefendant, Ashley, admitted to him that he was the triggerman wasnot known nor presented at during the proceedings on Mr. Mills’“initial” Rule 3.850 motion.
newly discovered evidence claim adversely to Mr. Marek. However
at the time that Mr. Marek filed his federal habeas petition, he
was unaware of what Jessie Bannerman, Robert Pearson, Michael
Conley, Leon Douglass, Carl Mitchell and William Green had to
say. Mr. Marek did not know or present their testimony in his
federal habeas petition, nor for that matter was any testimony
presented regarding statements made by Raymond Wigley that he
killed Adela Simmons while Mr. Marek slept in the pickup truck.
When the Eleventh Circuit issued its opinion, it did not have any
evidence before it of Raymond Wigley’s statements indicating that
he was the one who had killed Adela Simmons. So therefore, the
Eleventh Circuit could not have addressed its significance.4
Moreover, the State’s reliance upon the Eleventh Circuit’s
discussion of trial counsel’s strategy is irrelevant to the
4The circumstances here are identical to the circumstances in State v. Mills where the testimony of Anderson that the codefendant, Ashley, admitted to him that he was the triggerman hadnot been presented in Mr. Mills’ federal habeas petition and hadnot been considered by the federal courts when federal habeasrelief was denied. Mills v. Singletary, 161 F.3d 1273 (11th Cir. 1998).
Moreover, the decision by the Eleventh Circuit denying Mr.Marek’s ineffective assistance of counsel issued in 1995, wasbefore the United States Supreme Court’s decisions in Williams v.Taylor, 529 U.S. 362 (2000), Wiggins v. Smith, 539 U.S. 510(2003), Rompilla v. Beard, 545 U.S. 374 (2005). The decision in
th
Marek v. Singletary, 62 F.3d 1295 (11 Cir. 1995), is simplyerroneous in light of the subsequent decisions by the UnitedStates Supreme Court. And in fact, the United States SupremeCourt recently granted certiorari review in case in which theEleventh Circuit had denied habeas relief on a penalty phaseineffectiveness claim in order to address whether the standards employed by the Eleventh Circuit to review ineffectiveness claimscomports with the controlling precedent from the Supreme Court.Wood v. Allen, – U.S. – , Case No. 08-9156 (cert. granted May 18,2009).
newly discovered evidence claim given that trial counsel did not have the new evidence and therefore any decision making occurred without the new evidence and would have been altered by the new evidence had it been known, as trial counsel, Hilliard Moldof, testified on June 2, 2009. Certainly, the Eleventh Circuit did not have Mr. Moldof’s 2009 testimony regarding the new evidence and the effect it would have had on how he proceeded at Mr. Marek’s trial when it rendered its decision in 1995.5
As to Mills’ first claim, the trial court foundthat the evidence Mills presented met the test fornewly discovered evidence as enunciated in Jones v.State, 709 So. 2d 512, 519 (Fla. 1998). We agree. The evidence presented by Anderson was unknown at the timeof trial and neither Mills nor his counsel could have discovered it with due diligence, the evidence wouldhave been admissible at trial, if only for impeachment;and the newly discovered evidence, when considered inconjunction with the evidence at Mills’ trial and 3.850proceedings, would have probably produced a differentresult at sentencing.
State v. Mills, 788 So. 2d at 250. Thus, it is clear thatcomplete procedural history of Mr. Mills’ case and the analysisof the issues raised at every step in the process did not andcould not establish a res adjudicata bar.
was not in the record at the time of the direct appeal and thus it was not considered by this Court when it issued its opinion affirming Mr. Marek’s sentence of death.2
In the 1988 proceedings on Mr. Marek’s a motion to vacate, the State seems to suggest that the outcome there has some bearing on the decision of the newly discovered evidence claim against Mr. Marek. However in 1988 at the time of the “initial” Rule 3.850 motion, the testimony of Jessie Bannerman, Robert Pearson, Michael Conley, Leon Douglass, Carl Mitchell and William Green was not known or presented, nor for that matter was any testimony presented regarding statements made by Raymond Wigley that he killed Adela Simmons while Mr. Marek slept in the pickup truck. The evidence that has been presented now was not in the record at the time of the “initial” Rule 3.850 was heard and denied, and thus this evidence was not considered or addressed by either the circuit court or this Court when Mr. Marek was denied collateral relief.3
Similarly, the State seems to suggest that to the Eleventh Circuit’s affirmance of the denial of Mr. Marek’s petition for federal habeas relief is somehow binding and has decided the
2The circumstances here are identical to the circumstances in State v. Mills where the testimony of Anderson that the codefendant, Ashley, admitted to him that he was the triggerman hadnot been presented at trial and was not of record at the time ofthe direct appeal.
3The circumstances here are identical to the circumstances in State v. Mills where the testimony of Anderson that the codefendant, Ashley, admitted to him that he was the triggerman wasnot known nor presented at during the proceedings on Mr. Mills’“initial” Rule 3.850 motion.
newly discovered evidence claim adversely to Mr. Marek. However
at the time that Mr. Marek filed his federal habeas petition, he
was unaware of what Jessie Bannerman, Robert Pearson, Michael
Conley, Leon Douglass, Carl Mitchell and William Green had to
say. Mr. Marek did not know or present their testimony in his
federal habeas petition, nor for that matter was any testimony
presented regarding statements made by Raymond Wigley that he
killed Adela Simmons while Mr. Marek slept in the pickup truck.
When the Eleventh Circuit issued its opinion, it did not have any
evidence before it of Raymond Wigley’s statements indicating that
he was the one who had killed Adela Simmons. So therefore, the
Eleventh Circuit could not have addressed its significance.4
Moreover, the State’s reliance upon the Eleventh Circuit’s
discussion of trial counsel’s strategy is irrelevant to the
4The circumstances here are identical to the circumstances in State v. Mills where the testimony of Anderson that the codefendant, Ashley, admitted to him that he was the triggerman hadnot been presented in Mr. Mills’ federal habeas petition and hadnot been considered by the federal courts when federal habeasrelief was denied. Mills v. Singletary, 161 F.3d 1273 (11th Cir. 1998).
Moreover, the decision by the Eleventh Circuit denying Mr.Marek’s ineffective assistance of counsel issued in 1995, wasbefore the United States Supreme Court’s decisions in Williams v.Taylor, 529 U.S. 362 (2000), Wiggins v. Smith, 539 U.S. 510(2003), Rompilla v. Beard, 545 U.S. 374 (2005). The decision in
th
Marek v. Singletary, 62 F.3d 1295 (11 Cir. 1995), is simplyerroneous in light of the subsequent decisions by the UnitedStates Supreme Court. And in fact, the United States SupremeCourt recently granted certiorari review in case in which theEleventh Circuit had denied habeas relief on a penalty phaseineffectiveness claim in order to address whether the standards employed by the Eleventh Circuit to review ineffectiveness claimscomports with the controlling precedent from the Supreme Court.Wood v. Allen, – U.S. – , Case No. 08-9156 (cert. granted May 18,2009).
newly discovered evidence claim given that trial counsel did not have the new evidence and therefore any decision making occurred without the new evidence and would have been altered by the new evidence had it been known, as trial counsel, Hilliard Moldof, testified on June 2, 2009. Certainly, the Eleventh Circuit did not have Mr. Moldof’s 2009 testimony regarding the new evidence and the effect it would have had on how he proceeded at Mr. Marek’s trial when it rendered its decision in 1995.5
From The Innocence Project of Florida blog
Solving the Problem
DNA has changed the criminal justice system forever – but the system has not changed enough.
The exonerations of innocent people have shown that our criminal justice system is fundamentally flawed. DNA exonerations do not solve the problem – they provide scientific proof of its existence, and they illuminate the need for reform.
Over the last 15 years, there has been a major shift in criminal justice legislation as a result of DNA exonerations. Policymakers are increasingly recognizing and addressing the problems these exonerations demonstrate – and they are beginning to enact common-sense reforms that have been proven to improve accuracy in the criminal justice system.
Reforms with Broad Support and Proven Success
The Innocence Project works with people from across the criminal justice system – including prosecutors, victims, law enforcement agencies and defense advocates – to enact meaningful reform. Improving fairness and accuracy in the criminal justice system benefits all segments of society. Victims and their families can see justice; prosecutors and police can have the tools to do their jobs well; the public can have more confidence in the system; and innocent people and their families can avoid the tragedy of wrongful convictions.
The Innocence Project’s priorities for reforming the criminal justice system reflect the lessons that have been learned from DNA exonerations over the last 15 years. These priorities also reflect the need to address fundamental shortcomings in the criminal justice system while implementing specific reforms to law enforcement procedures. All of the reforms that the Innocence Project and its partners advocate have been proven to increase the accuracy of the criminal justice system, often through decades of scientific research. The reforms that can address and prevent wrongful convictions include:
Eyewitness Identification Reform
False Confessions
Access to Post-Conviction DNA Testing
Evidence Preservation
Crime Lab Oversight
Criminal Justice Reform Commissions (’Innocence Commissions’)
Exoneree Compensation
Some of these recommended reforms have already met with success.
New evidences in John Marek
As to this Court’s opinion on direct appeal, the State seems
to be suggesting that the factual statements made by this Court
and the issues raised by Mr. Marek somehow has already decided
the newly discovered evidence claim adversely to Mr. Marek.
However, the testimony of Jessie Bannerman, Robert Pearson,
Michael Conley, Leon Douglass, Carl Mitchell and William Green
was not known or presented at Mr. Marek’s trial, nor for that
matter was any testimony presented regarding statements made by
Raymond Wigley that he killed Adela Simmons while Mr. Marek slept
in the pickup truck. The evidence that has been presented now
So. 2d 622 (Fla. 1992). No mention was made of the Eleventh Circuit opinion affirming the denial of federal habeas relief.
th
Mills v. Singletary, 161 F.3d 1273 (11 Cir. 1998). Nor was anymention made of this Court’s affirmance of the summary denial ofprevious successive Rule 3.850 motion, the day before Mr. Millsfiled his third motion to vacate - the one on which relief was granted. Mills v. State, 786 So. 2d 547 (Fla. 2001) (thisopinion issued on April 25, 2001, and the motion to vacate onwhich Mr. Mills obtained relief was filed on April 26, 2001).
In fact when this Court issued its opinion in State v.Mills, it simply stated:
As to Mills’ first claim, the trial court found that the evidence Mills presented met the test fornewly discovered evidence as enunciated in Jones v.State, 709 So. 2d 512, 519 (Fla. 1998). We agree. The evidence presented by Anderson was unknown at the time of trial and neither Mills nor his counsel could have discovered it with due diligence, the evidence would have been admissible at trial, if only for impeachment;and the newly discovered evidence, when considered inconjunction with the evidence at Mills’ trial and 3.850 proceedings, would have probably produced a different result at sentencing.
State v. Mills, 788 So. 2d at 250. Thus, it is clear that complete procedural history of Mr. Mills’ case and the analysis of the issues raised at every step in the process did not andcould not establish a res adjudicata bar.
was not in the record at the time of the direct appeal and thus it was not considered by this Court when it issued its opinion affirming Mr. Marek’s sentence of death
to be suggesting that the factual statements made by this Court
and the issues raised by Mr. Marek somehow has already decided
the newly discovered evidence claim adversely to Mr. Marek.
However, the testimony of Jessie Bannerman, Robert Pearson,
Michael Conley, Leon Douglass, Carl Mitchell and William Green
was not known or presented at Mr. Marek’s trial, nor for that
matter was any testimony presented regarding statements made by
Raymond Wigley that he killed Adela Simmons while Mr. Marek slept
in the pickup truck. The evidence that has been presented now
So. 2d 622 (Fla. 1992). No mention was made of the Eleventh Circuit opinion affirming the denial of federal habeas relief.
th
Mills v. Singletary, 161 F.3d 1273 (11 Cir. 1998). Nor was anymention made of this Court’s affirmance of the summary denial ofprevious successive Rule 3.850 motion, the day before Mr. Millsfiled his third motion to vacate - the one on which relief was granted. Mills v. State, 786 So. 2d 547 (Fla. 2001) (thisopinion issued on April 25, 2001, and the motion to vacate onwhich Mr. Mills obtained relief was filed on April 26, 2001).
In fact when this Court issued its opinion in State v.Mills, it simply stated:
As to Mills’ first claim, the trial court found that the evidence Mills presented met the test fornewly discovered evidence as enunciated in Jones v.State, 709 So. 2d 512, 519 (Fla. 1998). We agree. The evidence presented by Anderson was unknown at the time of trial and neither Mills nor his counsel could have discovered it with due diligence, the evidence would have been admissible at trial, if only for impeachment;and the newly discovered evidence, when considered inconjunction with the evidence at Mills’ trial and 3.850 proceedings, would have probably produced a different result at sentencing.
State v. Mills, 788 So. 2d at 250. Thus, it is clear that complete procedural history of Mr. Mills’ case and the analysis of the issues raised at every step in the process did not andcould not establish a res adjudicata bar.
was not in the record at the time of the direct appeal and thus it was not considered by this Court when it issued its opinion affirming Mr. Marek’s sentence of death
Crist should appoint prosecutor to probe alleged corruption at State Attorney's Office
Our views: Crying for justice
Crist should appoint prosecutor to probe alleged corruption at State Attorney's Office
June 21, 2009
http://www.floridatoday.com/article/20090621/OPINION/90619036/1004/opinion/Our+views++Crying+for+justice
The evidence couldn’t be clearer:
Justice was repeatedly denied by the State Attorney’s Office in Brevard County in the early 1980s, including frequent use of fraudulent dog handler John Preston, now deceased, who helped the state convict dozens of people.
That includes trials for three Brevard County men who’ve since had their convictions overturned or charges dropped.
William Dillon of Satellite Beach served nearly 27 years in prison for a 1981 murder in Indian Harbour Beach before DNA testing in 2008 showed he couldn’t be linked to the crime.
Dillon was finally vindicated last year when charges were dropped and Brevard-Seminole State Attorney Norm Wolfinger said a review showed “a jury today would not find Mr. Dillon guilty beyond and to the exclusion of every reasonable doubt.”
Wilton Dedge was convicted of rape in 1981 but freed in 2004 after DNA evidence proved the Port St. John man’s innocence.
Juan Ramos was tried and sentenced to death for rape and murder in 1983 in Brevard, although no physical evidence linked him to the crime. Ramos was acquitted in 1987.
Evidence of fraud
Now alarm bells are ringing loudly that more innocent men may be unjustly kept behind bars because of potential prosecutorial misconduct involving Preston:
-- Titusville attorney and former Brevard prosecutor Sam Bardwell, who encountered Preston in a 1981 rape case, says then-State Attorney Doug Cheshire, also now dead, as well as the Brevard Sheriff’s Office and most law enforcement officers at the time knew Preston was a charlatan.
“I left the State Attorney’s Office because I could not abide by the fabrication of evidence,” Bardwell says.
-- Retired 18th Circuit and appellate Judge Gil Goshorn confirmed Cheshire relied heavily on Preston in a number of cases, along with questionable jailhouse snitches.
“Cheshire’s office often relied on such evidence of dubious reliability,” Goshorn said in a sworn affadavit in 2008.
-- The Innocence Project is looking into a fourth Brevard case involving Preston, that of Gary Bennett, sentenced to life in prison for the 1984 murder of Palm Bay resident Helen Nardi.
Seth Miller, executive director of the group, says Preston was being fed information that helped him manufacture evidence and the state win convictions.
-- Preston was involved in a reported 60 Brevard cases, with more than 15 of those identified in FLORIDA TODAY archives. He earned $37,429 for work done in the first half of 1984, including the Bennett trial.
Wolfinger should be aggressively investigating the allegations of abuses in the office in that era, but so far is stonewalling, putting the onus for unearthing tainted justice on the convicted, sitting in their jail cells.
His refusal further erodes the public’s trust in Brevard’s justice system, damaged recently by the botched Dedge and Dillon cases.
A full probe
Wolfinger’s cop-out leaves no recourse but for Gov. Charlie Crist to start a full investigation.
We’ve called for that repeatedly since the gross mishandling of the Dedge case came to light five years ago. The Innocence Project has also called for Crist to appoint a special prosecutor to look into the Preston cases.
But Crist is running away, saying through spokesman Sterling Ivey he believes it’s “a judicial issue and should be handled on a case-by-case analysis through the judicial system.”
Running for the U.S. Senate no doubt makes him want to steer clear of controversial issues. But as a former Florida attorney general he should understand shoving corruption under the rug simply because it’s in the past is a corrosive and dishonest policy.
Justice cries out for answers in the Preston cases.
That includes finding out for certain if those convicted using tainted evidence are indeed guilty and keeping them behind bars.
But also making sure any who may be wrongly convicted — like Dedge, Dillon and Ramos — get a new day in court. And that any justice system or law enforcement officials who betrayed the public good in cahoots with Preston are found and, if still alive, prosecuted to the full extent of the law.
Only a full probe can render those judgments.
Crist should order one immediately.
Friday, June 26, 2009
Michael Conley testifies in John Marek
REPLY TO STATE’S STATEMENT OF THE CASE
In its Statement of the Case, the State devotes a fair space to a discussion of the procedural history of the litigation over Mr. Marek’s death sentence in the past twenty-five years. This is in an effort to provide a springboard for its res adjudicata arguments that follow. But of course what is left out of the procedural history provided by the State is any acknowledgment that the testimony of Jessie Bannerman, Robert Pearson, Michael Conley, Leon Douglass, Carl Mitchell, or William Green was not previously presented by Mr. Marek at any time during the procedural history until after the witnesses were located in April and May of 2009. As a result in none of the decisions by any of the courts that looked at Mr. Marek’s case prior to April of 2009 was there any consideration given to the testimony of these new witnesses and the impact that there testimony would have had at Mr. Marek’s trial or upon the analysis of the legal issues that have been raised and addressed in the subsequent proceedings as to the validity of the death sentence.1
1When this Court addressed a similar newly discovered evidence claim in State v. Mills, 788 So. 2d 249 (Fla. 2001), it did not address any of the procedural history of the 20 years of litigation by Mr. Mills. No mention was made in this Court’s opinion of the direct appeal by Mr. Mills. Mills v. State, 476So. 2d 172 (Fla. 1985). No mention was made of this Court’s opinion reversing and remanding for an evidentiary hearing on Mr.Mills’ Rule 3.850 motion. Mills v. Dugger, 559 So. 2d 578 (Fla. 1990). No mention was made of this Court’s opinion affirming the denial of Rule 3.850 relief after the evidentiary hearing was conducted finding that counsel had not rendered ineffective assistance. Mills v. State, 603 So. 2d 482 (Fla. 1992). No mention was made of this Court’s opinion denying Mr. Mills’petition for a writ of habeas corpus. Mills v. Singletary, 606
In its Statement of the Case, the State devotes a fair space to a discussion of the procedural history of the litigation over Mr. Marek’s death sentence in the past twenty-five years. This is in an effort to provide a springboard for its res adjudicata arguments that follow. But of course what is left out of the procedural history provided by the State is any acknowledgment that the testimony of Jessie Bannerman, Robert Pearson, Michael Conley, Leon Douglass, Carl Mitchell, or William Green was not previously presented by Mr. Marek at any time during the procedural history until after the witnesses were located in April and May of 2009. As a result in none of the decisions by any of the courts that looked at Mr. Marek’s case prior to April of 2009 was there any consideration given to the testimony of these new witnesses and the impact that there testimony would have had at Mr. Marek’s trial or upon the analysis of the legal issues that have been raised and addressed in the subsequent proceedings as to the validity of the death sentence.1
1When this Court addressed a similar newly discovered evidence claim in State v. Mills, 788 So. 2d 249 (Fla. 2001), it did not address any of the procedural history of the 20 years of litigation by Mr. Mills. No mention was made in this Court’s opinion of the direct appeal by Mr. Mills. Mills v. State, 476So. 2d 172 (Fla. 1985). No mention was made of this Court’s opinion reversing and remanding for an evidentiary hearing on Mr.Mills’ Rule 3.850 motion. Mills v. Dugger, 559 So. 2d 578 (Fla. 1990). No mention was made of this Court’s opinion affirming the denial of Rule 3.850 relief after the evidentiary hearing was conducted finding that counsel had not rendered ineffective assistance. Mills v. State, 603 So. 2d 482 (Fla. 1992). No mention was made of this Court’s opinion denying Mr. Mills’petition for a writ of habeas corpus. Mills v. Singletary, 606
Thursday, June 25, 2009
Death row inmate's mental competency at issue
Death row inmate's mental competency at issue
http://www2.tbo.com/content/2009/jun/23/death-row-inmates-mental-competency-issue/news-breaking/
Tribune file photo
Franklin Delano Floyd attends the penalty phase of his murder trial in 2002.
By MARK DOUGLAS News Channel 8
Published: June 23, 2009
Related Links
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Previous: Inmate To Die For '89 Murder
Four years after Pinellas Circuit Judge Nancy Moate Ley sent convicted killer Franklin Delano Floyd to death row for murdering an exotic dancer, he's coming back to face her again today.
This time the issue is Floyd's mental competency, not whether he killed Cheryl Ann Commesso, whose bones were found along Interstate 275 in 1995.
Commesso disappeared in 1989, when she was working at the Mons Venus strip club in Tampa with another dancer who was married to Floyd.
Prosecutors say that woman, Sharon Marshall, died under suspicious circumstances in a hit-and-run accident in Oklahoma, but Floyd was never charged in her death or the death of her son, whom Floyd kidnapped in Oklahoma, along with the boy's school principal.
The boy, Michael Hughes, was never found, but the principal survived and later testified at Floyd's murder trial.
Investigators linked Floyd to Commesso's murder with pornographic pictures found taped to the gas tank of the truck Floyd used to abduct Hughes and the principal.
The photos depicted Commesso's badly beaten body posed in a sexually explicit manner while bound, restrained and blindfolded on a couch. A witness later testified the couch was in Floyd's Pinellas Park trailer.
In a strange coincidence, the photos surfaced almost at the same moment a maintenance worker stumbled across Commesso's skull while maintaining the right of way along I-275 in St. Petersburg.
Chief Assistant State Attorney Bruce Bartlett, who helped prosecute Floyd, says the question of Floyd's competency presents a number of problems.
It would be dangerous to transfer Floyd to a mental hospital if the judge decides he's too mentally ill to face execution or the continuing legal motions associated with the death penalty process, Bartlett said.
"Right now, we've hit a stumbling block," he said.
If doctors and defense lawyers convince the judge that Floyd is mentally incompetent, that effectively would stop all motions in his case, and he would end up in a kind of legal limbo. In that event, the courts could not consider Floyd's remaining postconviction motions, but he couldn't be executed either. It's also unclear whether he could remain on death row.
Something similar happened prior to his criminal trial when Ley declared Floyd incompetent in March 2001 and sent Floyd to the North Florida Evaluation and Treatment Center.
Doctors there found him competent, manipulative and abusive and sent him back to Pinellas County to face trial.
Since then, Floyd's behavior in court has sometimes been disruptive, and his legal defense interrupted by pro se motions he filed himself. Court records show an order striking his most recent pro se motion was filed just last week.
Ley will preside over Floyd's competency hearing, which begins at 9 a.m. today at the Pinellas Justice Center. It is scheduled to last two days.
Reporter Mark Douglas can be reached at (727) 709-2753 .
http://www2.tbo.com/content/2009/jun/23/death-row-inmates-mental-competency-issue/news-breaking/
Tribune file photo
Franklin Delano Floyd attends the penalty phase of his murder trial in 2002.
By MARK DOUGLAS News Channel 8
Published: June 23, 2009
Related Links
Previous: Remains ID'd as woman
Previous: Prisoner indicted in teen's death
Previous: Inmate To Die For '89 Murder
Four years after Pinellas Circuit Judge Nancy Moate Ley sent convicted killer Franklin Delano Floyd to death row for murdering an exotic dancer, he's coming back to face her again today.
This time the issue is Floyd's mental competency, not whether he killed Cheryl Ann Commesso, whose bones were found along Interstate 275 in 1995.
Commesso disappeared in 1989, when she was working at the Mons Venus strip club in Tampa with another dancer who was married to Floyd.
Prosecutors say that woman, Sharon Marshall, died under suspicious circumstances in a hit-and-run accident in Oklahoma, but Floyd was never charged in her death or the death of her son, whom Floyd kidnapped in Oklahoma, along with the boy's school principal.
The boy, Michael Hughes, was never found, but the principal survived and later testified at Floyd's murder trial.
Investigators linked Floyd to Commesso's murder with pornographic pictures found taped to the gas tank of the truck Floyd used to abduct Hughes and the principal.
The photos depicted Commesso's badly beaten body posed in a sexually explicit manner while bound, restrained and blindfolded on a couch. A witness later testified the couch was in Floyd's Pinellas Park trailer.
In a strange coincidence, the photos surfaced almost at the same moment a maintenance worker stumbled across Commesso's skull while maintaining the right of way along I-275 in St. Petersburg.
Chief Assistant State Attorney Bruce Bartlett, who helped prosecute Floyd, says the question of Floyd's competency presents a number of problems.
It would be dangerous to transfer Floyd to a mental hospital if the judge decides he's too mentally ill to face execution or the continuing legal motions associated with the death penalty process, Bartlett said.
"Right now, we've hit a stumbling block," he said.
If doctors and defense lawyers convince the judge that Floyd is mentally incompetent, that effectively would stop all motions in his case, and he would end up in a kind of legal limbo. In that event, the courts could not consider Floyd's remaining postconviction motions, but he couldn't be executed either. It's also unclear whether he could remain on death row.
Something similar happened prior to his criminal trial when Ley declared Floyd incompetent in March 2001 and sent Floyd to the North Florida Evaluation and Treatment Center.
Doctors there found him competent, manipulative and abusive and sent him back to Pinellas County to face trial.
Since then, Floyd's behavior in court has sometimes been disruptive, and his legal defense interrupted by pro se motions he filed himself. Court records show an order striking his most recent pro se motion was filed just last week.
Ley will preside over Floyd's competency hearing, which begins at 9 a.m. today at the Pinellas Justice Center. It is scheduled to last two days.
Reporter Mark Douglas can be reached at (727) 709-2753 .
Judge refuses request to set aside death sentence
Kaplan testifiesJudge refuses request to set aside death sentence
A Broward County circuit judge refused a convicted killer's request to setaside his murder conviction and death sentence for a 1983 slaying.
John Richard Marek, 47, was convicted of the June 1983 kidnapping, rapingand strangling of Adella Marie Simmons.
Circuit Judge Jeffrey Levenson issued his ruling to the Florida SupremeCourt on Friday. He wrote that evidence presented during a hearing did not offset the overall evidence against Marek.
The Supreme Court now has the final say on Marek's fate.
Marek's attorney declined comment Monday because he hadn't seen thedecision.
Marek had been scheduled for lethal injection May 13, but the SupremeCourt postponed the execution and sent the case to Broward for a hearing.
(source: Associated Press)
Judge orders more DNA testing in death penalty case
Judge orders more DNA testing in death penalty case
Florida Supreme Court stayed David Johnston's execution in May.
Sarah Lundy Sentinel Staff Writer
5:38 PM EDT, June 23, 2009
An Orange Circuit Court judge is allowing a lab selected by the defense and another picked by the state to test evidence for DNA in the death penalty case against David Eugene Johnston, whose execution was stayed last month by the Florida Supreme Court.
Johnston was convicted of the murder of 84-year-old Mary Hammond, who was strangled and stabbed in her Orlando home in 1983. He was scheduled to die on May 27.
The Florida Supreme Court stayed the execution so DNA testing could be done. Earlier this month, a state forensic lab recommended more testing with newer technology evaluate the evidence, which included the victim's fingernail clippings. The lab also tested Johnston's shoes, socks and shorts.
Now, a lab in Ohio selected by the defense will test for DNA and a lab in Virginia will test and report back to the court their findings, according to an order signed by Orange Circuit Court Judge Bob Wattles.
Monday, June 22, 2009
Explosive new charge in prison vendor lawsuit
First came allegations of illegal negotiations between Florida's prison system and a mental health care vendor. Then came a bid protest and a lawsuit charging violations of purchasing and public records laws. Now, this: the same vendor that brought the lawsuit, MHM Correctional Services, is raising the possibility that a top corrections official maneuvered to get a friend hired at the vendor being hired to replace MHM.
MHM attorney Chris Kise filed a response document in Leon County Circuit Court Monday that says the prison system's assistant secretary for health care services, Dr. Sandeep Rahangdale, "may well have had a personal interest in contracting with CMS." Correctional Medical Services of St. Louis is the new vendor hired to take MHM's place in providing mental health care for about 18,000 inmates in South Florida's prisons.
Kise attached e-mail traffic between Rahangdale and Frank Fletcher, CMS's senior director of business development, in which the prison official writes: "Frank: Send requirements, pay range, etc. to (Rahangdale's private email address). I think I have a perfect fit for you and the state." Fletcher answers: "Thanks for the e-mail contact, I will be back in touch regarding a psychiatric director." (A previous post incorrectly said MHM got the emails from a public records request; the materials were obtained through discovery).
During that e-mail exchange, testimony in court showed, the Department of Corrections was finalizing a 120-day purchase order to begin utilizing CMS on July 1. Kise's lawsuit is asking a judge to block that purchase order award until MHM's bid protest is decided. The state had no immediate response to Kise's court filing, saying the agency had not yet seen the paperwork.
In a statement, CMS spokesman Ken Fields called the allegation "nothing more than a desperate PR stunt that is completely baseless." He said MHM has had the emails "for weeks" but never raised "This false allegation in any hearing ... Instead, they have chosen to wait until the hearings are concluded and to make the assertion in the media."
Posted by Steve Bousquet at 03:00:53 PM on June 22, 2009
in State agencies Permalink
MHM attorney Chris Kise filed a response document in Leon County Circuit Court Monday that says the prison system's assistant secretary for health care services, Dr. Sandeep Rahangdale, "may well have had a personal interest in contracting with CMS." Correctional Medical Services of St. Louis is the new vendor hired to take MHM's place in providing mental health care for about 18,000 inmates in South Florida's prisons.
Kise attached e-mail traffic between Rahangdale and Frank Fletcher, CMS's senior director of business development, in which the prison official writes: "Frank: Send requirements, pay range, etc. to (Rahangdale's private email address). I think I have a perfect fit for you and the state." Fletcher answers: "Thanks for the e-mail contact, I will be back in touch regarding a psychiatric director." (A previous post incorrectly said MHM got the emails from a public records request; the materials were obtained through discovery).
During that e-mail exchange, testimony in court showed, the Department of Corrections was finalizing a 120-day purchase order to begin utilizing CMS on July 1. Kise's lawsuit is asking a judge to block that purchase order award until MHM's bid protest is decided. The state had no immediate response to Kise's court filing, saying the agency had not yet seen the paperwork.
In a statement, CMS spokesman Ken Fields called the allegation "nothing more than a desperate PR stunt that is completely baseless." He said MHM has had the emails "for weeks" but never raised "This false allegation in any hearing ... Instead, they have chosen to wait until the hearings are concluded and to make the assertion in the media."
Posted by Steve Bousquet at 03:00:53 PM on June 22, 2009
in State agencies Permalink
Dog handler led to bad evidence
Dog handler led to bad evidence
Calls grow for reinvestigating cases from 1980s
BY JOHN A. TORRES • and JEFF SCHWEERS • June 21, 2009
http://www.floridatoday.com/article/20090621/NEWS01/906210319/-1/crime/Dog%20handler%20led%20to%20bad%20evidence?GID=gILl6OXLKuUzpDHUSJW1bIymGsYVi/8zD6YfByclUuU%3D
Scorned as a "charlatan" by the Arizona Supreme Court and a fraud by a retired judge and others, a dog handler who helped the state convict dozens of people haunts Brevard County criminal cases 25 years after he was discredited.
John Preston, who died last year, testified in the 1980s trials of three Brevard men who have since been released with overturned convictions or dropped charges.
Now, the Innocence Project, which helped free Juan Ramos, Wilton Dedge and William Dillon, is looking into a fourth case involving Preston: the murder conviction of Gary Bennett in 1984.
Calls are growing for State Attorney Norm Wolfinger and his staff to reinvestigate and reopen more cases in which convictions may have been tainted by Preston's questionable word, as well as reliance on jailhouse informants. Some allege corruption by prosecutors at the time.
"If Norm Wolfinger had one iota of integrity, he would say it's outrageous and investigate the cases," said Titusville attorney Sam Bardwell, a former prosecutor here. "John Preston was a total fraud, and everyone knew it."
The State Attorney's Office has said it couldn't provide a list of cases involving the dog handler, but a FLORIDA TODAY archives and records search found more than 15 of 60 reported Brevard cases.
In a fax Friday, Wolfinger said only Bennett and another man remain in prison after trials in which Preston testified as an expert.
FLORIDA TODAY's research showed some convicts in the Preston-related cases have been released after serving their sentences. Some have died.
A public defender in the 1980s when Preston was an active witness, Wolfinger had issued a statement Wednesday saying it's the responsibility of convicted people to seek relief. He did not answer questions from FLORIDA TODAY.
"Defendants have had rights in Florida to challenge their convictions through a well established post-conviction process," the statement said. "Historically, that has been through a Rule 3.850 motion. More recently, that right has been expanded to DNA testing through Rule 3.853.
"Those provisions have procedures which defendants must follow, as well as potential rights to appointment of an attorney and having the public pay for costs if a hearing or testing is allowed by the court."
Attorney quit
Bardwell first encountered Preston while working as a prosecutor in the Frank Berry rape case in 1981. Bardwell did not want to use Preston's testimony, but he said he was pressured by others.
"The guy would show up at the State Attorney's Office asking if anyone needed help with a case," Bardwell said.
Berry was found guilty and sentenced to life in prison.
Though Bardwell thought Berry was guilty of the charges, he said the corruption he witnessed caused him to abandon prosecutions and take up private practice as a defense attorney.
"I left the State Attorney's Office because I could not abide by the fabrication of evidence," Bardwell said.
Berry is the second man Wolfinger identified as in prison in a Preston-related case. He called him a "serial rapist."
"Mr. Berry not only has a prior sexual battery and a subsequent escape sentence, his taped confession was played at trial, and he continues to admit his guilt to prison officials," Wolfinger said in Friday's fax.
Crist bows out
The Innocence Project of Florida has called for the governor to appoint a special prosecutor to look into the Preston cases. Seth Miller, executive director of the nonprofit group, has been outspoken about what he calls "widespread corruption" in Brevard County in the early 1980s.
"Preston was being fed information that allowed him to understand certain facts about the case that enabled him to manufacture evidence in order to get the conviction," Miller said. "Not only do we have to free the folks who are innocent, who were put into prison because of this testimony, but we have to hold the people who did this accountable."
Through a spokesman last week, Gov. Charlie Crist said he won't appoint a prosecutor, agreeing with Wolfinger.
"We believe this is a judicial issue and should be handled on a case-by-case analysis through the judicial system," spokesman Sterling Ivey said after consulting with legal staff. "There are methods by which new evidence can be filed in a case, and this is the appropriate course of action to take."
Attorney Jennifer Greenberg, who helped exonerate Dedge in 2004, said it is unfair to expect inmates decades later to know of developments in related cases, nor how to file for relief.
trigger
"Just gathering up the info on all Preston's doings would be virtually impossible, let alone getting into court in a timely fashion to actually get the issue heard," she said. "Post-conviction time deadlines, the necessity of investigative work and the pleading requirements totally prohibit inmates from receiving due process or fundamental fairness."
Judge's action
In the late 1970s, Preston went from a $20,000-a-year job as a Pennsylvania state trooper to a highly paid expert who testified in cases for the FBI, the U.S. Postal Service and Orange, Palm Beach, Brevard and Seminole counties, as well as for Arizona, Ohio and other states. He was paid $300 a day, according to documents.
Retired 18th Circuit and appellate Judge Gil Goshorn put Preston and his dogs to a test and ultimately refused to allow him to present himself as an expert in 1984.
Goshorn was ready to testify late last year in hearings on behalf of Dillon, convicted of a 1981 murder in which Preston testified, but the state first granted Dillon a new trial because of DNA evidence.
"The elected state attorney at that time, Doug Cheshire, relied heavily on Preston in a number of cases and frequently offered him as an expert," Goshorn stated in a sworn affidavit in 2008. "Cheshire also was a prolific user of jailhouse 'snitches.' Cheshire's office often relied on such evidence of dubious reliability."
Cheshire was voted out of office in 1984, when Wolfinger became state attorney. Cheshire died in 1997.
Failed test
Goshorn's test of the dog handler's scent-tracking ability involved two lawyers jogging down separate paths. The following morning, the dog was given one lawyer's sweat-soaked shirt to see if the dog could follow the trail. The dog failed.
Goshorn told Preston that he would give him a second chance a day later, but the handler and his dog left town and never testified in Brevard again.
"It is my belief that the only way Preston could achieve the results he achieved in numerous other cases was having obtained information about the case prior to the scent tracking so that Preston could lead the dog to the suspect or evidence in question," Goshorn continued in his affidavit. "I believe that Preston was regularly retained to confirm the state's preconceived notions about a case."
Prosecutors, including ones in Brevard, continued using Preston's services after a 1983 federal investigation initiated by the U.S. Postal Service. It said Preston routinely asked investigators for information about a case before using the dog and that he led his dog to supply wanted results.
Newspaper accounts said Brevard agencies paid Preston at least $37,429 for work done in the first half of 1984, including in the Bennett trial.
Preston's cases were overturned in Arizona, where the state's highest court referred to him as a "charlatan."
Bennett case
The Innocence Project wouldn't address its involvement in the Bennett case, except to say it was one that their attorneys are looking into. The case fits a pattern similar to those of Ramos, Dedge and Dillon.
Bennett, now seeking new DNA testing, was convicted in part on evidence provided by Preston and testimony of two cellmates who said he talked about killing his Palm Bay neighbor in 1984.
Prosecutors argued that Preston's dog identified Bennett's scent on the murder weapon in the 1984 case. But two scent tests failed when the tracking dog -- after sniffing Bennett's clothing -- failed to pick the murder weapons from lineups of similar weapons.
Bennett's palm print and fingerprint also were reportedly found at the murder scene.
Innocence Project leader Miller has an investigator looking into Preston's Brevard connection, hoping to help more people such as Dillon out of prison.
Memories differ
Preston testified in the Dillon case after his dog tracked Dillon across State Road A1A to the murder scene, then tied him to a bloody T-shirt. DNA evidence has since precluded Dillon from wearing the shirt.
Former Judge Stanley Wolfman, who presided over the Dillon trial, called the dog-tracking evidence troubling.
"It was kind of flimsy. They had this dog tracking across A1A with all the traffic going by there, and I just shook my head internally and (the defense attorney) did not attack it," Wolfman said. "It was just poor evidence as far as I could see."
Defense attorney Karen Brandon, who helped prosecute Dillon, said she presented evidence to the jury that was provided to her by the sheriff's office. She denied knowledge of any corruption in the State Attorney's Office.
"At the time, there was absolutely no reason to believe that Mr. Preston was less than forthright and that his evidence was less than valid," she said.
Dedge was awarded a new trial when Preston was discredited, but the introduction of notorious jailhouse snitch Clarence Zacke in his second trial sealed a second conviction against him. He was released in 2004 when DNA evidence proved that the semen found inside the rape victim did not belong to him.
Ramos, a Cuban immigrant, was arrested in 1982 for the rape and murder of his neighbor, even though no physical evidence tied him to the scene. Preston's testimony, however, was damning and Ramos was sentenced to death.
After four years on death row, the Florida Supreme Court reversed Ramos' conviction in 1986, citing the unreliability of the dog evidence. Ramos was acquitted at a retrial and released in 1987, when he moved to Miami.
Russo joins
In December, longtime Public Defender J.R. Russo joined those calling for an investigation.
"Mr. Wolfinger is very well-versed in the quality of the dog testimony," he said. "I'm surprised they are not going back to look at these cases."
But at the time, Wolfinger responded by saying defendants and their attorneys have been free to bring any motions they deem appropriate before the courts.
"Evidentiary challenges to the admissibility of the dog evidence by defense attorneys began and was well-publicized before I became state attorney," he said.
Contact Torres at 242-3649 or jtorres@floridatoday.com.
Former Judge Stanley Wolfman, who presided over the Dillon trial, called the dog-tracking evidence troubling.
"It was kind of flimsy. They had this dog tracking across A1A with all the traffic going by there, and I just shook my head internally and (the defense attorney) did not attack it," Wolfman said. "It was just poor evidence as far as I could see."
Defense attorney Karen Brandon, who helped prosecute Dillon, said she presented evidence to the jury that was provided to her by the sheriff's office. She denied knowledge of any corruption in the State Attorney's Office.
"At the time, there was absolutely no reason to believe that Mr. Preston was less than forthright and that his evidence was less than valid," she said.
Dedge was awarded a new trial when Preston was discredited, but the introduction of notorious jailhouse snitch Clarence Zacke in his second trial sealed a second conviction against him. He was released in 2004 when DNA evidence proved that the semen found inside the rape victim did not belong to him.
Ramos, a Cuban immigrant, was arrested in 1982 for the rape and murder of his neighbor, even though no physical evidence tied him to the scene. Preston's testimony, however, was damning and Ramos was sentenced to death.
After four years on death row, the Florida Supreme Court reversed Ramos' conviction in 1986, citing the unreliability of the dog evidence. Ramos was acquitted at a retrial and released in 1987, when he moved to Miami.
Russo joins
In December, longtime Public Defender J.R. Russo joined those calling for an investigation.
"Mr. Wolfinger is very well-versed in the quality of the dog testimony," he said. "I'm surprised they are not going back to look at these cases."
But at the time, Wolfinger responded by saying defendants and their attorneys have been free to bring any motions they deem appropriate before the courts.
"Evidentiary challenges to the admissibility of the dog evidence by defense attorneys began and was well-publicized before I became state attorney," he said.
Contact Torres at 242-3649 or jtorres@floridatoday.com.
Calls grow for reinvestigating cases from 1980s
BY JOHN A. TORRES • and JEFF SCHWEERS • June 21, 2009
http://www.floridatoday.com/article/20090621/NEWS01/906210319/-1/crime/Dog%20handler%20led%20to%20bad%20evidence?GID=gILl6OXLKuUzpDHUSJW1bIymGsYVi/8zD6YfByclUuU%3D
Scorned as a "charlatan" by the Arizona Supreme Court and a fraud by a retired judge and others, a dog handler who helped the state convict dozens of people haunts Brevard County criminal cases 25 years after he was discredited.
John Preston, who died last year, testified in the 1980s trials of three Brevard men who have since been released with overturned convictions or dropped charges.
Now, the Innocence Project, which helped free Juan Ramos, Wilton Dedge and William Dillon, is looking into a fourth case involving Preston: the murder conviction of Gary Bennett in 1984.
Calls are growing for State Attorney Norm Wolfinger and his staff to reinvestigate and reopen more cases in which convictions may have been tainted by Preston's questionable word, as well as reliance on jailhouse informants. Some allege corruption by prosecutors at the time.
"If Norm Wolfinger had one iota of integrity, he would say it's outrageous and investigate the cases," said Titusville attorney Sam Bardwell, a former prosecutor here. "John Preston was a total fraud, and everyone knew it."
The State Attorney's Office has said it couldn't provide a list of cases involving the dog handler, but a FLORIDA TODAY archives and records search found more than 15 of 60 reported Brevard cases.
In a fax Friday, Wolfinger said only Bennett and another man remain in prison after trials in which Preston testified as an expert.
FLORIDA TODAY's research showed some convicts in the Preston-related cases have been released after serving their sentences. Some have died.
A public defender in the 1980s when Preston was an active witness, Wolfinger had issued a statement Wednesday saying it's the responsibility of convicted people to seek relief. He did not answer questions from FLORIDA TODAY.
"Defendants have had rights in Florida to challenge their convictions through a well established post-conviction process," the statement said. "Historically, that has been through a Rule 3.850 motion. More recently, that right has been expanded to DNA testing through Rule 3.853.
"Those provisions have procedures which defendants must follow, as well as potential rights to appointment of an attorney and having the public pay for costs if a hearing or testing is allowed by the court."
Attorney quit
Bardwell first encountered Preston while working as a prosecutor in the Frank Berry rape case in 1981. Bardwell did not want to use Preston's testimony, but he said he was pressured by others.
"The guy would show up at the State Attorney's Office asking if anyone needed help with a case," Bardwell said.
Berry was found guilty and sentenced to life in prison.
Though Bardwell thought Berry was guilty of the charges, he said the corruption he witnessed caused him to abandon prosecutions and take up private practice as a defense attorney.
"I left the State Attorney's Office because I could not abide by the fabrication of evidence," Bardwell said.
Berry is the second man Wolfinger identified as in prison in a Preston-related case. He called him a "serial rapist."
"Mr. Berry not only has a prior sexual battery and a subsequent escape sentence, his taped confession was played at trial, and he continues to admit his guilt to prison officials," Wolfinger said in Friday's fax.
Crist bows out
The Innocence Project of Florida has called for the governor to appoint a special prosecutor to look into the Preston cases. Seth Miller, executive director of the nonprofit group, has been outspoken about what he calls "widespread corruption" in Brevard County in the early 1980s.
"Preston was being fed information that allowed him to understand certain facts about the case that enabled him to manufacture evidence in order to get the conviction," Miller said. "Not only do we have to free the folks who are innocent, who were put into prison because of this testimony, but we have to hold the people who did this accountable."
Through a spokesman last week, Gov. Charlie Crist said he won't appoint a prosecutor, agreeing with Wolfinger.
"We believe this is a judicial issue and should be handled on a case-by-case analysis through the judicial system," spokesman Sterling Ivey said after consulting with legal staff. "There are methods by which new evidence can be filed in a case, and this is the appropriate course of action to take."
Attorney Jennifer Greenberg, who helped exonerate Dedge in 2004, said it is unfair to expect inmates decades later to know of developments in related cases, nor how to file for relief.
trigger
"Just gathering up the info on all Preston's doings would be virtually impossible, let alone getting into court in a timely fashion to actually get the issue heard," she said. "Post-conviction time deadlines, the necessity of investigative work and the pleading requirements totally prohibit inmates from receiving due process or fundamental fairness."
Judge's action
In the late 1970s, Preston went from a $20,000-a-year job as a Pennsylvania state trooper to a highly paid expert who testified in cases for the FBI, the U.S. Postal Service and Orange, Palm Beach, Brevard and Seminole counties, as well as for Arizona, Ohio and other states. He was paid $300 a day, according to documents.
Retired 18th Circuit and appellate Judge Gil Goshorn put Preston and his dogs to a test and ultimately refused to allow him to present himself as an expert in 1984.
Goshorn was ready to testify late last year in hearings on behalf of Dillon, convicted of a 1981 murder in which Preston testified, but the state first granted Dillon a new trial because of DNA evidence.
"The elected state attorney at that time, Doug Cheshire, relied heavily on Preston in a number of cases and frequently offered him as an expert," Goshorn stated in a sworn affidavit in 2008. "Cheshire also was a prolific user of jailhouse 'snitches.' Cheshire's office often relied on such evidence of dubious reliability."
Cheshire was voted out of office in 1984, when Wolfinger became state attorney. Cheshire died in 1997.
Failed test
Goshorn's test of the dog handler's scent-tracking ability involved two lawyers jogging down separate paths. The following morning, the dog was given one lawyer's sweat-soaked shirt to see if the dog could follow the trail. The dog failed.
Goshorn told Preston that he would give him a second chance a day later, but the handler and his dog left town and never testified in Brevard again.
"It is my belief that the only way Preston could achieve the results he achieved in numerous other cases was having obtained information about the case prior to the scent tracking so that Preston could lead the dog to the suspect or evidence in question," Goshorn continued in his affidavit. "I believe that Preston was regularly retained to confirm the state's preconceived notions about a case."
Prosecutors, including ones in Brevard, continued using Preston's services after a 1983 federal investigation initiated by the U.S. Postal Service. It said Preston routinely asked investigators for information about a case before using the dog and that he led his dog to supply wanted results.
Newspaper accounts said Brevard agencies paid Preston at least $37,429 for work done in the first half of 1984, including in the Bennett trial.
Preston's cases were overturned in Arizona, where the state's highest court referred to him as a "charlatan."
Bennett case
The Innocence Project wouldn't address its involvement in the Bennett case, except to say it was one that their attorneys are looking into. The case fits a pattern similar to those of Ramos, Dedge and Dillon.
Bennett, now seeking new DNA testing, was convicted in part on evidence provided by Preston and testimony of two cellmates who said he talked about killing his Palm Bay neighbor in 1984.
Prosecutors argued that Preston's dog identified Bennett's scent on the murder weapon in the 1984 case. But two scent tests failed when the tracking dog -- after sniffing Bennett's clothing -- failed to pick the murder weapons from lineups of similar weapons.
Bennett's palm print and fingerprint also were reportedly found at the murder scene.
Innocence Project leader Miller has an investigator looking into Preston's Brevard connection, hoping to help more people such as Dillon out of prison.
Memories differ
Preston testified in the Dillon case after his dog tracked Dillon across State Road A1A to the murder scene, then tied him to a bloody T-shirt. DNA evidence has since precluded Dillon from wearing the shirt.
Former Judge Stanley Wolfman, who presided over the Dillon trial, called the dog-tracking evidence troubling.
"It was kind of flimsy. They had this dog tracking across A1A with all the traffic going by there, and I just shook my head internally and (the defense attorney) did not attack it," Wolfman said. "It was just poor evidence as far as I could see."
Defense attorney Karen Brandon, who helped prosecute Dillon, said she presented evidence to the jury that was provided to her by the sheriff's office. She denied knowledge of any corruption in the State Attorney's Office.
"At the time, there was absolutely no reason to believe that Mr. Preston was less than forthright and that his evidence was less than valid," she said.
Dedge was awarded a new trial when Preston was discredited, but the introduction of notorious jailhouse snitch Clarence Zacke in his second trial sealed a second conviction against him. He was released in 2004 when DNA evidence proved that the semen found inside the rape victim did not belong to him.
Ramos, a Cuban immigrant, was arrested in 1982 for the rape and murder of his neighbor, even though no physical evidence tied him to the scene. Preston's testimony, however, was damning and Ramos was sentenced to death.
After four years on death row, the Florida Supreme Court reversed Ramos' conviction in 1986, citing the unreliability of the dog evidence. Ramos was acquitted at a retrial and released in 1987, when he moved to Miami.
Russo joins
In December, longtime Public Defender J.R. Russo joined those calling for an investigation.
"Mr. Wolfinger is very well-versed in the quality of the dog testimony," he said. "I'm surprised they are not going back to look at these cases."
But at the time, Wolfinger responded by saying defendants and their attorneys have been free to bring any motions they deem appropriate before the courts.
"Evidentiary challenges to the admissibility of the dog evidence by defense attorneys began and was well-publicized before I became state attorney," he said.
Contact Torres at 242-3649 or jtorres@floridatoday.com.
Former Judge Stanley Wolfman, who presided over the Dillon trial, called the dog-tracking evidence troubling.
"It was kind of flimsy. They had this dog tracking across A1A with all the traffic going by there, and I just shook my head internally and (the defense attorney) did not attack it," Wolfman said. "It was just poor evidence as far as I could see."
Defense attorney Karen Brandon, who helped prosecute Dillon, said she presented evidence to the jury that was provided to her by the sheriff's office. She denied knowledge of any corruption in the State Attorney's Office.
"At the time, there was absolutely no reason to believe that Mr. Preston was less than forthright and that his evidence was less than valid," she said.
Dedge was awarded a new trial when Preston was discredited, but the introduction of notorious jailhouse snitch Clarence Zacke in his second trial sealed a second conviction against him. He was released in 2004 when DNA evidence proved that the semen found inside the rape victim did not belong to him.
Ramos, a Cuban immigrant, was arrested in 1982 for the rape and murder of his neighbor, even though no physical evidence tied him to the scene. Preston's testimony, however, was damning and Ramos was sentenced to death.
After four years on death row, the Florida Supreme Court reversed Ramos' conviction in 1986, citing the unreliability of the dog evidence. Ramos was acquitted at a retrial and released in 1987, when he moved to Miami.
Russo joins
In December, longtime Public Defender J.R. Russo joined those calling for an investigation.
"Mr. Wolfinger is very well-versed in the quality of the dog testimony," he said. "I'm surprised they are not going back to look at these cases."
But at the time, Wolfinger responded by saying defendants and their attorneys have been free to bring any motions they deem appropriate before the courts.
"Evidentiary challenges to the admissibility of the dog evidence by defense attorneys began and was well-publicized before I became state attorney," he said.
Contact Torres at 242-3649 or jtorres@floridatoday.com.
Judge denies Death Row inmate's request to toss conviction in Broward murder
Judge denies Death Row inmate's request to toss conviction in Broward murder
Tonya Alanez South Florida Sun Sentinel
10:12 AM EDT, June 22, 2009
http://www.sun-sentinel.com/news/local/breakingnews/sfl-marek-death-row-bn062209,0,2195103.story
John Richard Marek, 47, during a recent court appearance before Broward Circuit judge Peter Weinstein. (Lou Toman, File / May 7, 2009)
FORT LAUDERDALE - A Broward circuit judge has denied John Richard Marek's request to set aside his capital murder conviction and death sentence for the 1983 strangling of a woman whose body was found in a Dania Beach lifeguard shack.
Circuit Judge Jeffrey Levenson issued his ruling to the Florida Supreme Court on Friday evening. It is now up to the state's high court to make a final decision.
Levenson's decision was based upon evidence and testimony presented during a two-day hearing on June 1-2.
During the hearing, Marek's attorney had presented witnesses who said Marek's co-defendant, Raymond Wigley, caimed to be the strangler, not Marek.
In a 15-page ruling, Levenson wrote: "The testimony of the six inmate witnesses is not credible and does not offset the substantial evidence against the defendant."
Marek, 47, had been scheduled to die by lethal injection May 13 when the Supreme Court indefinitely postponed the execution and sent the case back to Broward County for a hearing.
Marek's attorney said that because Wigley, who was murdered in prison in 2000, got a life sentence, his client should as well.
The raped, strangled body of Adela Marie Simmons, a 45-year-old Barry University administrator, was found in a Dania Beach lifeguard shack in June 1983.
Saturday, June 20, 2009
Connecticut bishops ask governor to support death penalty repeal
(Publication Date: 06-02-2009)
By Catholic News Service
HARTFORD, Conn. (CNS) -- Connecticut's Catholic bishops have asked Gov. M. Jodi Rell to back a repeal of the death penalty in the state.
Rell, a Republican, vowed May 22 to veto a death penalty repeal bill passed by the Democratic-run General Assembly "as soon as it hits my desk."
The bishops' May 28 letter to Rell asked her to "respect the decision of the General Assembly, reconsider your publicly stated position on this bill, and allow (it) to become the law of the land in Connecticut."
"While Catholic social and moral teaching support the right of any state to protect itself from serous criminals, it has long held that such action does not require the use of the death penalty when the penal system can guarantee the incarceration of an offender for life," the bishops said.
"Although a perpetrator of a heinous crime may receive a sentence of death in Connecticut, the possibility that this person will actually be executed is very unlikely," they added. "It is highly questionable that the existence of a death penalty is a deterrent to those who commit a capital crime."
The bishops also noted the cost of "unending appeals" in capital punishment cases and the "inconsistent and uneven way" the death penalty is applied in the state.
The bill passed 90-56 in the state House, but 19-17 in the Senate, making Rell's threatened veto difficult to override, since a two-thirds majority would be needed.
There are 10 men currently on Connecticut's death row, including prisoners who committed their crimes in the 1980s.
In Missouri, Bishop Robert W. Finn of Kansas City-St. Joseph, asked for clemency for Reginald Clemons in the April 1991 murders of Robin and Julie Kerry. The sisters were raped and then pushed off a bridge.
The bishop noted he recently joined the other Catholic bishops of the state and the Missouri Catholic Conference, public policy arm of the state's bishops, in a petition asking Gov. Jay Nixon for clemency.
There are issues of "significant doubt" regarding Clemons' involvement in the murders, Bishop Finn said in a June 1 statement. Even so, he added, the clemency request is based on "a more basic principle of the fundamental dignity and value of every human life, even those guilty of the most heinous crimes."
Clemons, scheduled to be executed June 17, is one of 13 currently on Missouri's death row.
"It is my hope that our Missouri legislators will also renew initiatives for a moratorium on the use of the death penalty and establish a study commission to resolve inequities in our system, which work against the application of justice," Bishop Finn said.
In Tennessee, Paul House was fully exonerated May 12 after DNA evidence cleared him in the 1985 beating death of a woman. Tennessee prosecutors dropped all charges against House and decided not to retry him in the murder case.
House had spent more than two decades on death row. Now afflicted with multiple sclerosis, he uses a wheelchair. "I think it's over. Finally," he said in a statement. "I didn't do it."
The U.S. Supreme Court ruled in 2006 that any juror would have had a reasonable doubt about House's guilt if they had been shown the DNA evidence and other new information that would have discredited his conviction. House was released on bond last year when a federal judge ruled that he receive a new trial or be set free.
The Death Penalty Information Center said it was the 132nd exoneration from death row since 1973, but only the second in 2009 and the second in Tennessee since it reinstated the death penalty in 1977.
Bob Barr, a Republican member of the U.S. House from 1995-2003 and a U.S. attorney for the Northern District of Georgia 1986-90, argued in a May 31 opinion piece in The New York Times for the exoneration of another convicted man, Troy Davis.
"No court has ever heard the evidence of Mr. Davis' innocence," Barr said. He added courts have misread the Anti-Terrorism and Effective Death Penalty Act of 1996, which he helped write. "Nothing in the statute should have left the courts with the impression that they were barred from hearing claims of actual innocence like Troy Davis'," he said.
Davis was convicted in the 1989 murder of an off-duty police officer in Savannah, Ga. Noting that he signed a friend-of-the-court brief on Davis' behalf, Barr said, "I am a firm believer in the death penalty, but I am an equally firm believer in the rights and protections guaranteed by the Constitution. To execute Troy Davis without having a court hear the evidence of his innocence would be unconscionable and unconstitutional."
In Florida, new oral arguments were heard May 20 in the case of John Marek, who with Raymond Wigley was convicted in the 1983 kidnapping, rape and slaying of 47-year-old Adella Simmons in Dania Beach, Fla. Marek received the death penalty, but Wigley received a life sentence. Marek's attorney contends Wigley is the actual killer and said three of Wigley's former prison mates claimed Wigley confessed to Simmons' strangulation.
The attorney, Martin McClain, said he believes Marek's sentence was unconstitutional and that the 25 years Marek has spent on death row constitute cruel and unusual punishment. Marek's scheduled May 13 execution was postponed May 11.
By Catholic News Service
HARTFORD, Conn. (CNS) -- Connecticut's Catholic bishops have asked Gov. M. Jodi Rell to back a repeal of the death penalty in the state.
Rell, a Republican, vowed May 22 to veto a death penalty repeal bill passed by the Democratic-run General Assembly "as soon as it hits my desk."
The bishops' May 28 letter to Rell asked her to "respect the decision of the General Assembly, reconsider your publicly stated position on this bill, and allow (it) to become the law of the land in Connecticut."
"While Catholic social and moral teaching support the right of any state to protect itself from serous criminals, it has long held that such action does not require the use of the death penalty when the penal system can guarantee the incarceration of an offender for life," the bishops said.
"Although a perpetrator of a heinous crime may receive a sentence of death in Connecticut, the possibility that this person will actually be executed is very unlikely," they added. "It is highly questionable that the existence of a death penalty is a deterrent to those who commit a capital crime."
The bishops also noted the cost of "unending appeals" in capital punishment cases and the "inconsistent and uneven way" the death penalty is applied in the state.
The bill passed 90-56 in the state House, but 19-17 in the Senate, making Rell's threatened veto difficult to override, since a two-thirds majority would be needed.
There are 10 men currently on Connecticut's death row, including prisoners who committed their crimes in the 1980s.
In Missouri, Bishop Robert W. Finn of Kansas City-St. Joseph, asked for clemency for Reginald Clemons in the April 1991 murders of Robin and Julie Kerry. The sisters were raped and then pushed off a bridge.
The bishop noted he recently joined the other Catholic bishops of the state and the Missouri Catholic Conference, public policy arm of the state's bishops, in a petition asking Gov. Jay Nixon for clemency.
There are issues of "significant doubt" regarding Clemons' involvement in the murders, Bishop Finn said in a June 1 statement. Even so, he added, the clemency request is based on "a more basic principle of the fundamental dignity and value of every human life, even those guilty of the most heinous crimes."
Clemons, scheduled to be executed June 17, is one of 13 currently on Missouri's death row.
"It is my hope that our Missouri legislators will also renew initiatives for a moratorium on the use of the death penalty and establish a study commission to resolve inequities in our system, which work against the application of justice," Bishop Finn said.
In Tennessee, Paul House was fully exonerated May 12 after DNA evidence cleared him in the 1985 beating death of a woman. Tennessee prosecutors dropped all charges against House and decided not to retry him in the murder case.
House had spent more than two decades on death row. Now afflicted with multiple sclerosis, he uses a wheelchair. "I think it's over. Finally," he said in a statement. "I didn't do it."
The U.S. Supreme Court ruled in 2006 that any juror would have had a reasonable doubt about House's guilt if they had been shown the DNA evidence and other new information that would have discredited his conviction. House was released on bond last year when a federal judge ruled that he receive a new trial or be set free.
The Death Penalty Information Center said it was the 132nd exoneration from death row since 1973, but only the second in 2009 and the second in Tennessee since it reinstated the death penalty in 1977.
Bob Barr, a Republican member of the U.S. House from 1995-2003 and a U.S. attorney for the Northern District of Georgia 1986-90, argued in a May 31 opinion piece in The New York Times for the exoneration of another convicted man, Troy Davis.
"No court has ever heard the evidence of Mr. Davis' innocence," Barr said. He added courts have misread the Anti-Terrorism and Effective Death Penalty Act of 1996, which he helped write. "Nothing in the statute should have left the courts with the impression that they were barred from hearing claims of actual innocence like Troy Davis'," he said.
Davis was convicted in the 1989 murder of an off-duty police officer in Savannah, Ga. Noting that he signed a friend-of-the-court brief on Davis' behalf, Barr said, "I am a firm believer in the death penalty, but I am an equally firm believer in the rights and protections guaranteed by the Constitution. To execute Troy Davis without having a court hear the evidence of his innocence would be unconscionable and unconstitutional."
In Florida, new oral arguments were heard May 20 in the case of John Marek, who with Raymond Wigley was convicted in the 1983 kidnapping, rape and slaying of 47-year-old Adella Simmons in Dania Beach, Fla. Marek received the death penalty, but Wigley received a life sentence. Marek's attorney contends Wigley is the actual killer and said three of Wigley's former prison mates claimed Wigley confessed to Simmons' strangulation.
The attorney, Martin McClain, said he believes Marek's sentence was unconstitutional and that the 25 years Marek has spent on death row constitute cruel and unusual punishment. Marek's scheduled May 13 execution was postponed May 11.
Friday, June 12, 2009
CBLA conviction overturned in Colorado
Jimmy Ates releaseFrom the Blog of The Innocence Project in Florida
Monday, June 1, 2009
CBLA conviction overturned in Colorado
After the FBI in 2005 abandoned a faulty scientific procedure called comparative bullet lead analysis, by which they claimed they could match bullets from a crime scene to a specific box of bullets found somewhere else, a joint task force was created consisting of national organizations such as the Innocence Project in New York and the National Association of Criminal Defense Lawyers. The Innocence Project of Florida was appointed as the "point office" for issues related to CBLA in Florida.
Last Sunday, the Associated Press wrote an article about Tim Kennedy, a Colorado man whose conviction has been thrown out, partly because of comparative bullet lead analysis. (You'll recall that Jimmy Ates, a client of the Innocence Project of Florida, was the first person in the nation to have his conviction thrown due to the FBI's disavowal of CBLA.)
During an interview Thursday at the Limon Correctional Facility on the Eastern Plains about 95 miles east of Denver, Kennedy cherished the thought of being a free man. Apart from spending time with his sister and brother, one of the first things Kennedy would do if he is freed is get a steak dinner...
At trial, the only physical evidence linking Kennedy to the crime was the FBI's comparative bullet lead analysis, which purported to be able to trace a bullet from a crime scene to a box of bullets in a suspect's possession.
That technique has since been discredited as "exceeding the limits of science" and the FBI stopped the analysis in 2005.
Tragically, both of Kennedy's parents died within the last four years, so they will not get to rejoice in his release. But Kennedy has fond memories and nothing but gratitude for his parents' solidarity and support: "There are times when it brings you to tears when you think about how lucky you are, how things have worked out, how your family stayed with you... You know, I'll never forget my parents. They spent their life savings (on his defense). Even after that you know, they stuck with me through the rest of their lives."
Monday, June 8, 2009
Fla. justices stay Johnston execution
Fla. justices stay Johnston execution
The Associated Press
TALLAHASSEE, Fla.
-- The Florida Supreme Court has stayed next week's execution of David Eugene Johnston pending DNA testing of key evidence.
The justices unanimously issued the stay Thursday.
Johnston, 49, was convicted of stabbing and strangling 84-year-old Mary Hammond at her Orlando home. The high court ordered testing of the victim's fingernail clippings, which may contain bits of flesh and blood she scratched from her attacker's body, and of Johnston's clothing and shoes.
Johnston is one of two Florida death row inmates under active death warrants. He was to be executed Wednesday.The other, John Richard Marek, 47, previously received a stay pending further appeal. Marek was convicted of kidnapping, and strangling Adella Marie Simmons in Broward County.
The New Blog of The Innocence Project of Florida
From the Blog of The Innocence Project of Florida :
New website has launched over at
and the redesigned blog can be found at
Sunday, June 7, 2009
Death row inmate asks state Supreme Court to overturn conviction
FLORIDA:
Death row inmate asks state Supreme Court to overturn conviction
Mark Twilegar never contested the penalty phase of his 2007 murder conviction.
Now, the death row inmate 1 of 8 from Lee County is challenging his conviction and death sentence in the highest court in the state, asking the Florida Supreme Court to throw out a jury's guilty verdict in the 2002 murder of North Fort Myers attorney David Thomas.
Prosecutors said Twilegar shot Thomas in the back with a shotgun, buried him while still alive and stole the $25,000 the attorney had recently withdrawn.
On Tuesday, the panel of seven justices listened to oral arguments from Twilegars attorney, who claimed the evidence for conviction was insufficient, and a state prosecutor, who asked that jurors' 2007 decision stand, despite a potential evidence error.
The review comes as Twilegar's direct appeal; all death row inmates are automatically required to appeal to the Florida Supreme Court.
During the penalty phase of Twilegar's trial in which jurors were asked to weigh sentencing him to life in prison versus death by execution
Twilegar never offered a mitigating factor to save his life. Jurors recommended death, and a judge agreed.
"This is a circumstantial evidence case," Cynthia J. Dodge, Twileger'sattorney, told the justices on Tuesday.
Twilegar, a handyman who lived in a tent on a friend's Fort Myers property, was building a deck on Thomas' Alabama home at the time of the murder. After Thomas bank withdrawal, the reason for which was never clear, the pair drove back down to Fort Myers on August 6, 2002.
Thomas' body was found weeks later, buried in a shallow grave besideTwilegar's tent site. Twilegar, who hit the road soon after Thomas went missing, was later arrested in Tennessee.
A judge in his trial allowed prosecutors to present Twilegar's cash receipts from a 7-11 and Wal-Mart as evidence, records intended to show the defendant purchased items he couldn't afford before Thomas went missing.
On Tuesday, justices called that evidence potential hearsay and thus, potentially problematic. Although the receipts were found on Twilegar at arrest, there was no foundation of evidence to tie them to him.
"I'm sort of surprised that the state would take a risk of introducing these receipts that are very indicative not only of the amount (of purchases), but of the timeline, through a deputy that could not establish the foundation," Justice Barbara J. Pariente told Assistant AttorneyGeneral Candance Sebella.
Sebella said other witnesses tied Twilegar to the shopping trips, but she admitted the admission could be an error.
"I'm saying, your honor, if there was error, it was harmless, absolutely."
Twilegar's attorney, Dodge, found less sympathy during the hearing.
"All I think you're doing here is saying there might be some holes in the state's case," Pariente told the attorney, who attacked the state's evidence as insufficient.
Dodge said she wasn't. "What I'm saying is, 'Go back to the circumstantial evidence case," she said. "Suspicious circumstances are not enough. That evidence has to be inconsistent with the theory of innocence."
And what was the defense's theory of innocence, Chief Justice Peggy Quince asked.
"That somebody else did it. We don't know who," Dodge said. "And that is a perfectly legitimate..."
Quince cut in: "Somebody else came to the same place where Mr. Twilegar was, dug a hole and put Mr. Thomas in it?"
The property was not fenced, Dodge offered.
Justices will likely return an opinion in the coming months.
(source: Naples Daily News)
Penalty phase begins in Kopsho capital murder trial
FLORIDA:
Penalty phase begins in Kopsho capital murder trial
The penalty phase of the trial of William Kopsho, who was convicted last month of 1st-degree murder and armed kidnapping in the death of his wife, began Monday morning at the Marion County Courthouse.
Over the next couple of days, the same 12-member jury who returned a guilty verdict for on May 22, will hear testimony from both sides as it weighs whether to recommend the death penalty or life in prison without parole for the 55-year-old.
Kopsho was found guilty of murdering his estranged wife, Lynne, in October 2000. He shot the 21-year-old three times with a .40-caliber handgun alongside State Road 40, then held bystanders back as they approached to assist the victim.
State prosecutors plan to present 5 aggravating circumstances to try and convince the jury Kopsho deserves a death sentence:
-that the murder occurred during the commission of the felony crime of kidnapping
-that it was especially heinous, atrocious and cruel
-that it was cold, calculated and pre-meditated-
Kopsho is a previously convicted felon who was on probation at the time of the murder
-that Kopsho is previously convicted of a violent crime.
These factors, State Attorney Brad King said in his opening statement,"set this murder and murderer apart from the norm of murder and murderers."
In his efforts to skirt a death penalty recommendation, Chief Assistant Public Defender William Miller plans to present testimony that paints his client as a man raised in a cold, emotionless household in Gary, Ind., whoran afoul of the law from an early age.
"These things do not happen in a vacuum," Miller told jurors. "You're not going to hear him being violent towards anyone other than the women he tried to love."
One of those women, Helen Little, took the stand Monday to describe how Kopsho - a former boyfriend - once sexually battered then kidnapped her in 1991 in Georgia.
"I was afraid of him and I wanted to keep my distance," Little said, recalling her mounting fear of the increasingly possessive man leading up to the crime, for which Kopsho eventually served 5 years in prison followed by 5 years of probation.
Circuit Judge David Eddy must afford the jury's recommendation "greatweight" when he sentences Kopsho at a later date. In April 2005, Eddy chose to sentence the defendant to death based on a 9-3 recommendation for death by a Sumter County jury.
That ruling came at the conclusion of Kopsho's 1st trial on these same charges. That conviction and sentence were later overturned by the Florida Supreme Court in 2007 on a technicality related to jury selection.
(source: Ocala.com)
Broward death row inmate to get new trial
FLORIDA:
Broward death row inmate to get new trial
A Broward County convicted murderer on death row will get a new trial.
In 2007, Omar Loureiro was found guilty in the stabbing death of James
Lentry and sentenced to death by Circuit Judge Ana Gardiner.
Last year, prosecutor Sheila Alu came forward saying she had heard
Gardiner and Assistant State Attorney Howard Scheinberg joking about the murder trial over dinner while the trial was ongoing.
Scheinberg was the trial prosecutor.
Now, after a series of legal wranglings, Chief Judge Victor Tobin has thrown out Loureiro's sentence and ordered a new trial, said Bruce Rogow, a lawyer hired by the Broward State Attorney's Office to handle the matter.
Gardiner has since been transferred from the criminal to the civic section.
Scheinberg is a private lawyer.
(source: Miami Herald)
Fla. marks 30 years since death penalty's return
Sun, 24 May 2009 11:00:03 GMT
Fla. marks 30 years since death penalty's return
JACKSONVILLE, Fla. (AP) Three decades have past since Florida resumed executions when John Spenkelink was strapped into Old Sparky and electrocuted, the nation's first involuntary execution after a Supreme Court ban was lifted.
Since then, the state has executed another 64 men and two women. Florida has changed its execution method from the electric chair to lethal injection and the conflict over the death penalty remains as heated as it was 30 years ago. There have been several botched executions and former Gov. Jeb Bush once imposed a moratorium to review the state's procedures and make sure they passed constitutional muster.
''I don't know how you put someone to death and it not be somewhat controversial,'' said Richard Dugger, who was assistant warden at Florida State Prison when Spenkelink was executed and later head of the Department of Corrections.
Spenkelink, 30, was executed May 25, 1979, for the slaying of traveling companion Joseph Syzmankiewicz in a Tallahassee motel Dugger became somewhat notorious for give him a couple shots of Jack Daniels whiskey just before his death.
In his trial, Spenkelink had claimed he had been raped and the death was self-defense. The jury did not buy it.
Spenkelink, until moments before he died, fought his execution. His case made five trips to the U.S Supreme Court.
His lawyer, David Kendall, now a Washington, D.C., attorney, watched him die and still believes his client shouldn't have been executed.
''The question was this the kind of murder that merited the death penalty?'' Kendall said. ''Absolutely not. This case lacks the kind of aggravating circumstance that are the hallmark of the death penalty.''
Utah had executed Gary Gillmore two years earlier for two slayings, but he did not challenge his death sentence and died by firing squad after telling prison officials, ''Let's do it.''
Spenkelink had rejected a prosecution offer to plead guilty to a charge of second-degree murder and receive a long prison sentence.
Dugger recalls the time as being one of uncertainty. Florida didn't have an executioner. It had not used the electric chair for 15 years and it had no written procedures on how to conduct an execution.
''The biggest thing about Spenkelink was that it was a new experience for everybody involved,'' Dugger said. ''There was so much attention to it, we couldn't make a mistake.''
Former state Attorney General Jim Smith received death threats against him and his family, mainly from those who opposed to the death penalty.
''We had a job to do, as grim as it was,'' Smith said.
Smith continues to believe in the death penalty, although he said efforts need to be made to ensure that no mistakes are made and innocent people aren't executed.
''It is a deterrent. It would be more of a deterrent if it took place closer to the murder than 15 to 20 years later,'' Smith said, adding that there is no way to determine its effectiveness. ''We can't measure the number of murders that did not take place.''
Smith favored the change to lethal injection in 2000.
''I felt like Old Sparky had become a negative symbol. Lethal injection was more in keeping where we were in time.''
Florida has had its share of problems while performing executions. Twice there were fires in the electric chair headpieces: Pedro Medina in 1997 and Jesse Tafero in 1990. In both cases, someone on the execution crew had replaced natural sea sponges with artificial sponges, causing flames and sparking when power was turned on in the chair.
On another occasion, Dugger recalls seeing blue electricity danced across the floor during an execution. A prisoner mopping up the floor had left a pool of water under a rubber mat in the execution chamber. Dugger said it is lucky the entire staff was not electrocuted.
The switch to lethal injection did not solve the problems. In December 2006, it took Miami killer Angel Diaz about 36 minutes to die. An autopsy showed the needles used to send lethal drugs racing through his veins had poked through into his muscles.
Bush ordered an investigation into the failure, causing a yearlong delay in executions and a change in procedures. Now, midway through the execution, the warden shakes the inmate to ensure that he is unconscious after the first chemical is administered. If inmate does not respond, the final two chemicals are injected.
In Florida, serial killers Ted Bundy and Gerald Stano, and black-widow killer Judy Buenoano were among the 44 inmates strapped into the electric chair, a three-legged oaken chair built by inmates. Another 23 inmates, including female serial killer Aileen Wuornos and Gainesville student slayer Danny Rolling, have died from lethal injection.
Today, Florida has 392 death row inmates, compared to 134 in 1979. Two, John Marek and David Johnston, recently had their executions stopped by the state Supreme Court.
Marek was convicted of the 1983 kidnapping and murder of a woman who had car trouble on Florida's Turnpike. He has received an indefinite stay claiming new evidence shows he is not the killer.
Johnston was convicted of the November 1983 slaying of 84-year-old Mary Hammond of Orlando. His execution was stopped so DNA evidence can be tested.
Some other states have ended their use of capital punishment to save money, including New Mexico. A similar measure failed by one vote in the Colorado Senate. In Florida, Gov. Charlie Crist and Attorney General Bill McCollum remain committed to the death penalty.
''Gov. Crist supports the death penalty. The heinous nature of the crimes committed by the inmates scheduled for execution ... speak for themselves,'' spokeswoman Erin Isaac said.
D. Todd Doss, a defense attorney who has represented several death row inmates in their final appeals, including Johnston, sees several changes over the last 30 years, but still doesn't think it's administered fairly.
''We still have an unrepresentative mix of people on death row,'' he said. ''Your race, gender, ethnicity, socio-economic class and geography and those of the victim have more to do with whether you end up on death row than the facts surrounding the conviction, not to mention the quality of the lawyer and the resources available to that lawyer.
''It is time for abolition of the death penalty or at a minimum a moratorium,'' said Doss, who lives in Lake City.
An American Bar Association study of Florida's death penalty system concluded that the state needed to make drastic changes in attempt to make it fairer and reduce the chance that an innocent person could be executed. Its recommendations have gone unheeded.
Mark Elliott, executive director of Floridians for Alternatives to the Death Penalty, said the state should consider the cost of the death penalty.
''Florida spends over $50 million every year on the death penalty. That's an awful lot of money spent to kill a couple of prisoners destined to die in prison anyway. Since Spenkelink, Florida has spent over $1 billion on the death penalty and amassed over 10,000 unsolved homicides,'' Elliott said.
Ron McAndrew, a former warden at Florida State Prison and now a prison consultant and anti-death penalty crusader, supervised three executions.
He points to 132 exonerated cases nationwide, including Juan Melendez of Florida, freed in 2002 for a 1983 slaying that he did not commit, as a reason to end the death penalty.
''I could have actually walked this innocent man into the death chamber, strapped him into the electric chair and literally cooked him to death!''
Broward death row case moves closer to retrial
May 20
FLORIDA:
Broward death row case moves closer to retrial----
A Broward death penalty case moved a step closer to a possible retrial when the state's highest court ordered the case back to Broward.
A convicted murderer who was sentenced to death appears close to getting a new trial, following accusations of improper conversations between the Broward County prosecutor and judge on his case.
The Florida Supreme Court said Tuesday that Omar Loureiro's murder conviction and death sentence should be sent back to Broward, where prosecutors intend to ask for a new trial and to vacate his death sentence.
In 2007, Loureiro was convicted of 1st-degree murder in the stabbing death of James Lentry, 57, and sentenced to death by Circuit Judge Ana Gardiner.
Assistant state attorney Howard Scheinberg prosecuted the case.
Last year, prosecutor and Sunrise City Commissioner Sheila Alu came
forward saying she had heard Gardiner and Scheinberg joking about the
murder trial over dinner while the trial was ongoing.
Alu also gave a sworn statement to Loureiro's former defense attorneyabout what she saw.
The Supreme Court ordered a hearing outside of Broward to determine whether the allegations were true. Lawyers for both sides interviewed those at the dinner when the alleged impropriety took place.
After 3 interviews -- with Gardiner, Scheinberg and a friend of Alu's, Lucianna Calegari -- Broward prosecutors said there was at least an appearance of impropriety. They asked the Supreme Court to return the case to Broward.
In the interviews, Calegari agreed with much of what Alu had said, saying she heard both Scheinberg and Gardiner call Loureiro guilty.
Scheinberg and Gardiner disputed that they discussed the case.
Despite the different accounts, there clearly was the appearance of impropriety, said Bruce Rogow, the lawyer hired by the Broward State Attorney's Office as counsel for the matter. That was enough to warrant a new trial, he said.'
'The state, based on the appearance of impropriety arising from undisclosed and ongoing conversations between the trial judge and prosecutor during the trial proceedings, and to preserve the integrity ofthe judicial process, will move to vacate the judgment in this case,''Rogow wrote in the motion.
The case has been reassigned to Chief Judge Victor Tobin. Rogow said he intends to file a motion to set aside the conviction.
Gardiner has since been transferred from the criminal to the civic section.
Scheinberg now is a private lawyer.
Loureiro, 46, remains in state custody in Raiford.
(source: Miami Herald)
Florida Supreme Court order in Omar Loureiro
Dated May 19, 2009
The "Agreed Motion to Amend March 31, 2009, Relinquishment Order to Relinquish Jurisdiction to the Circuit Court for the Seventeenth Judicial Circuit (Broward County) so that an Agreed Motion to Vacate the Sentence and Conviction Can Be Filed and a New Trial Ordered" is hereby granted and we issue the following revised order in place of the order dated March 31, 2009. We hereby relinquish jurisdiction to the Seventeenth Judicial Circuit in and for Broward County, Florida and appoint the Honorable Victor Tobin, Chief Judge to consider the Motion to Vacate the Conviction and the Sentence of Omar Loureiro and Order of New Trial and we hereby relieve the Honorable Lucy Chernow Brown, Circuit Judge, of the Fifteenth Judicial Circuit of Florida from any further relinquishment responsibility. If the Motion to Vacate the Conviction and Sentence of Omar Loureiro and Order of New Trial is granted, counsel for Mr. Loureiro shall immediately file a Notice of Voluntary Dismissal of his pending appeal in case SC07-1799 with this Court.
The "Agreed Motion to Amend March 31, 2009, Relinquishment Order to Relinquish Jurisdiction to the Circuit Court for the Seventeenth Judicial Circuit (Broward County) so that an Agreed Motion to Vacate the Sentence and Conviction Can Be Filed and a New Trial Ordered" is hereby granted and we issue the following revised order in place of the order dated March 31, 2009. We hereby relinquish jurisdiction to the Seventeenth Judicial Circuit in and for Broward County, Florida and appoint the Honorable Victor Tobin, Chief Judge to consider the Motion to Vacate the Conviction and the Sentence of Omar Loureiro and Order of New Trial and we hereby relieve the Honorable Lucy Chernow Brown, Circuit Judge, of the Fifteenth Judicial Circuit of Florida from any further relinquishment responsibility. If the Motion to Vacate the Conviction and Sentence of Omar Loureiro and Order of New Trial is granted, counsel for Mr. Loureiro shall immediately file a Notice of Voluntary Dismissal of his pending appeal in case SC07-1799 with this Court.
Investigation ordered into conduct of Broward judge, prosecutor
Investigation ordered into conduct of Broward judge, prosecutor
Accusations of misconduct by a Broward judge and prosecutor are under scrutiny in a death penalty case.
http://www.miamiherald.com/news/broward/story/993213.html
BY DIANA MOSKOVITZ
The state's highest court has ordered a hearing to determine the veracity of allegations that a Broward judge and prosecutor had improper conversations about a death penalty case outside the courtroom.
If true, the allegations potentially could affect the death sentence of Omar Loureiro, who was convicted of first-degree murder in 2007. The case was prosecuted by former Assistant State Attorney Howard Scheinberg in front of Circuit Judge Ana Gardiner.
Last year, prosecutor and Sunrise City Commissioner Sheila Alu came forward saying she had heard Gardiner and Scheinberg joking about the murder trial while at dinner, while the trial was ongoing.
The allegations arose during Loureiro's appeal, which has reached the Florida Supreme Court.
On March 31, the court ordered an evidentiary hearing -- outside of Broward County -- to weigh the allegations before Loureiro's full appeal is finished.
The case has been assigned to Palm Beach Circuit Judge Lucy Chernow Brown. No hearing date has been set yet.
Gardiner has since been transferred from the criminal section, and now is hearing civil cases. Scheinberg now is a private lawyer. Loureiro, 46, remains in custody at Florida State Prison in Raiford.
A jury convicted Loureiro in March 2007 of fatally stabbing 57-year-old James Lentry in 2001, after the two had sex.
Michael Tenzer, Loureiro's lawyer during the initial trial, said he believed the Supreme Court has done the right thing.
''If they are true,'' Tenzer said of the allegations, ``I would suspect that something should be done.''
Bruce Lyons, Scheinberg's lawyer, said his client still disputes Alu's allegations.
''Obviously, there seems to be a discrepancy between what is alleged to have taken place by Sheila Alu and the other participants,'' he said.
In an affidavit, Alu said that she did not come forward about the conversation until after the trial because she feared endangering her legal career and didn't know who to alert. When the alleged transgression happened, Alu was not a lawyer.
Alu said that on March 23, 2007, she was at a restaurant when Gardiner called her over and asked Alu to join her. Gardiner told Alu: ''I am with someone I should not be with,'' the affidavit stated.
Eventually, Gardiner, Scheinberg and Circuit Court Judge Charles Kaplan joined Alu and her friends.
Alu stated in the affidavit that she heard Gardiner and Scheinberg joke about the defendant being gay. They also talked about a juror who passed out after seeing photographs during trial.
Alu, concerned about the conversation, told Scheinberg what she had heard. He responded by telling her that if she felt he had broken a code of ethics, then she was obligated to report her concerns to the Florida Bar, the affidavit stated.
Alu also shared her concerns with Gardiner, the document stated.
Monday, May 25, 2009
Florida Supreme Court stay order in David Johnston
http://www.floridasupremecourt.org/pub_info/summaries/briefs/09/09-839/Filed_05-21-2009_Stay_Order.pdf
Supreme Court of Florida
THURSDAY, MAY 21,2009
CASE NO.: SC09-839 Lower Tribunal No(s).: CR83-5401
DAVID EUGENE JOHNSTON vs. STATE OF FLORIDA
Appellant(s) Appellee(s)
The execution of David Eugene Johnston, scheduled for 6:00 p.m., Wednesday, May 27, 2009, is hereby stayed pending further order of this Court.
Johnston, a prisoner under a sentence of death and under the death warrant signed by Governor Charlie Crist on April 20, 2009, appeals inter alia the denial of his motion for DNA testing filed under Florida Rule of Criminal Procedure 3.853 seel(ing DNA testing on his tennis shoes, socks, and shorts, which are said to be in the custody of the Clerk of the Circuit Court or the Orlando Police Department, and on the fingernail clippings taken from the victim in this case, which are now said to be in the custody or control of the Orlando Police Department. Having reviewed the record itf this case, including all prior proceedings and the briefs of the parties, and having heard oral argument of counsel, we hereby relinquish jurisdiction for a period of ninety days for the purpose of conducting DNA tests on the abovereferenced items of evidence pursuant to the provisions of rule 3.853 and section 925.11, Florida Statutes (2008). Pursuant to the rule and statute, the results of the DNA testing shall be provided in writing to the trial court, counsel for Johnston, and the prosecuting attorney. The DNA testing and all proceedings in the trial court subsequent to the receipt of the DNA testing results shall be concluded and any order entered no later than ninety days from the date of this order. The trial court shall immediately provide a copy of any order entered subsequent to the DNA testing to the Clerk of this Court.
CASE NO. SC09-839 PAGE TWO
The court reporters shall have thirty days after completion of the above proceedings in which to file any transcripts with the trial court clerk and the trial court clerk shall have twenty days after receipt of the transcripts in which to file a record of the entire relinquishment proceeding with this Court. Per this Court's Administrative Order In Re: Mandatory Submission of Electronic Copies of Documents, AOSC04-84, dated September 13, 2004, the court reporters are directed to transmit a copy of any transcripts, in addition to paper copies, in an electronic format as required by the provisions of that order. The electronic version for this Court shall be submitted to the following e-mail address: efile@f1coutts.org. Counsel for the parties are hereby directed to file Status Reports with this Court every thirty days as to the progress of the relinquishment proceeding.
* THE COVERSHEET SHALL REFLECT "SUPPLEMENTAL RECORD
VOLUME 5, ETC." AND PAGE NUMBERING SHOULD START WITH PAGE 298 AND RUN CONSECUTIVELY.
QUINCE, C.J., and PARIENTE, LEWIS, CANADY, POLSTON, LABARGA, and PERRY, JJ., concur.
A True Copy Test:
l0111as D~ H<111 C~lerl(, Slll)l~ellie C~Ollrt
th Served:
JEFFREY L. ASHTON HON. CHARLES J. CRIST, JR. ROBERT R. WHEELER OFFICIAL COURT REPORTERS D. TODD DOSS KENNETHS.NUNNELLEY HON. BOB WATTLES, JUDGE HON. LYDIA GARDNER, CLERK
Supreme Court of Florida
THURSDAY, MAY 21,2009
CASE NO.: SC09-839 Lower Tribunal No(s).: CR83-5401
DAVID EUGENE JOHNSTON vs. STATE OF FLORIDA
Appellant(s) Appellee(s)
The execution of David Eugene Johnston, scheduled for 6:00 p.m., Wednesday, May 27, 2009, is hereby stayed pending further order of this Court.
Johnston, a prisoner under a sentence of death and under the death warrant signed by Governor Charlie Crist on April 20, 2009, appeals inter alia the denial of his motion for DNA testing filed under Florida Rule of Criminal Procedure 3.853 seel(ing DNA testing on his tennis shoes, socks, and shorts, which are said to be in the custody of the Clerk of the Circuit Court or the Orlando Police Department, and on the fingernail clippings taken from the victim in this case, which are now said to be in the custody or control of the Orlando Police Department. Having reviewed the record itf this case, including all prior proceedings and the briefs of the parties, and having heard oral argument of counsel, we hereby relinquish jurisdiction for a period of ninety days for the purpose of conducting DNA tests on the abovereferenced items of evidence pursuant to the provisions of rule 3.853 and section 925.11, Florida Statutes (2008). Pursuant to the rule and statute, the results of the DNA testing shall be provided in writing to the trial court, counsel for Johnston, and the prosecuting attorney. The DNA testing and all proceedings in the trial court subsequent to the receipt of the DNA testing results shall be concluded and any order entered no later than ninety days from the date of this order. The trial court shall immediately provide a copy of any order entered subsequent to the DNA testing to the Clerk of this Court.
CASE NO. SC09-839 PAGE TWO
The court reporters shall have thirty days after completion of the above proceedings in which to file any transcripts with the trial court clerk and the trial court clerk shall have twenty days after receipt of the transcripts in which to file a record of the entire relinquishment proceeding with this Court. Per this Court's Administrative Order In Re: Mandatory Submission of Electronic Copies of Documents, AOSC04-84, dated September 13, 2004, the court reporters are directed to transmit a copy of any transcripts, in addition to paper copies, in an electronic format as required by the provisions of that order. The electronic version for this Court shall be submitted to the following e-mail address: efile@f1coutts.org. Counsel for the parties are hereby directed to file Status Reports with this Court every thirty days as to the progress of the relinquishment proceeding.
* THE COVERSHEET SHALL REFLECT "SUPPLEMENTAL RECORD
VOLUME 5, ETC." AND PAGE NUMBERING SHOULD START WITH PAGE 298 AND RUN CONSECUTIVELY.
QUINCE, C.J., and PARIENTE, LEWIS, CANADY, POLSTON, LABARGA, and PERRY, JJ., concur.
A True Copy Test:
l0111as D~ H<111 C~lerl(, Slll)l~ellie C~Ollrt
th Served:
JEFFREY L. ASHTON HON. CHARLES J. CRIST, JR. ROBERT R. WHEELER OFFICIAL COURT REPORTERS D. TODD DOSS KENNETHS.NUNNELLEY HON. BOB WATTLES, JUDGE HON. LYDIA GARDNER, CLERK
Motion for clarification filed in David Johnston
http://www.floridasupremecourt.org/pub_info/summaries/briefs/09/09-839/Filed_05-22-2009_Motion_Clarification.pdf
IN THE SUPREME COURT OF FLORIDA
3G DAVID EUGENE JOHNSTON, CASE NO.: SC09-83~ Petitioner, L.T. CASE NO.: CR83-5401
v.
STATE OF FLORIDA, Respondent.
MOTION FOR CLARIFICATION OF ORDER RELINQUISHING JURISDICTION FOR DNA TESTING Comes now the Defendant, DAVID EUGENE JOHNSTON, by and through his undersigned counsel, and hereby moves this Court to clarify its order of May 21, 2009 relinquishing jurisdiction to the circuit court to permit DNA testing. In support of this motion, Mr. Johnston avers:
1. This Honorable Court entered its order dated May 21, 2009 staying Mr. Johnston's execution scheduled for May 27, 2009 and relinquishing jurisdiction to the circuit court for ninety days to complete DNA testing of Mr. Johnston's tennis shoes, socks, and shorts, as well as fingernail clippings of Mary Hammond. However, no mention is made of the hair and debris samples that Mr. Johnston had also requested to be tested. 2. During the case management hearing below, Mr. Johnston had orally amended his 3.853 motion to include hair and debris
-1
folds held by the Orlando Police Department. PCR. Vol II, 32. This amendment was accepted and acknowledged by the circuit court. Id. at 43. Additionally, Mr. Johnston included this amendment as part of his appeal of this cause and specifically referenced the oral amendment in his initial brief. IB at 7, fn.
4. The State of Florida did not object to the amendment, but instead opposed all DNA testing.
3. This Honorable Court made no reference to the hair and debris folds in the aforementioned order and Mr. Johnston seeks to clarify whether the hair and debris folds are to be included in the DNA testing. 1 The order was not clear as to whether the failure to mention the hair and debris was purposeful or inadvertent. 2
WHEREFORE, Mr. Johnston respectfully requests that this Court clarify its May 21, 2009 order in the above-styled cause as to whether the hair and debris folds are to be included in the ordered DNA testing.
IMr. Johnston will not attempt to provide any argument within this motion as to the merits of testing the hair and debris folds as the time for that has passed.
2 Judge Robert Wattles held a telephonic status conference on the afternoon of May 21, 2009 soon after the afternoon release of the aforementioned order. The State of Florida took the position that it would object to any attempt to include the hair and debris folds in DNA testing, despite the circuit court's willingness to include them for testing if the parties would stipulate to their inclusion.
-2
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing motion has been furnished by electronic transmission and u.s. Mail, postage prepaid, to Kenneth S. Nunnelley, Office of the Attorney
5th
General, 444 Seabreeze Blvd., Floor, Daytona Beach, FL 32118 on May 22, 2009.
D. TODD DOSS Florida Bar No. 0910384 725 Southeast Baya Drive Suite 102 Lake City, FL 32025-6092 Telephone (386) 755-9119 Facsimile (386) 755-3181
Counsel for Mr. Johnston
-3
IN THE SUPREME COURT OF FLORIDA
3G DAVID EUGENE JOHNSTON, CASE NO.: SC09-83~ Petitioner, L.T. CASE NO.: CR83-5401
v.
STATE OF FLORIDA, Respondent.
MOTION FOR CLARIFICATION OF ORDER RELINQUISHING JURISDICTION FOR DNA TESTING Comes now the Defendant, DAVID EUGENE JOHNSTON, by and through his undersigned counsel, and hereby moves this Court to clarify its order of May 21, 2009 relinquishing jurisdiction to the circuit court to permit DNA testing. In support of this motion, Mr. Johnston avers:
1. This Honorable Court entered its order dated May 21, 2009 staying Mr. Johnston's execution scheduled for May 27, 2009 and relinquishing jurisdiction to the circuit court for ninety days to complete DNA testing of Mr. Johnston's tennis shoes, socks, and shorts, as well as fingernail clippings of Mary Hammond. However, no mention is made of the hair and debris samples that Mr. Johnston had also requested to be tested. 2. During the case management hearing below, Mr. Johnston had orally amended his 3.853 motion to include hair and debris
-1
folds held by the Orlando Police Department. PCR. Vol II, 32. This amendment was accepted and acknowledged by the circuit court. Id. at 43. Additionally, Mr. Johnston included this amendment as part of his appeal of this cause and specifically referenced the oral amendment in his initial brief. IB at 7, fn.
4. The State of Florida did not object to the amendment, but instead opposed all DNA testing.
3. This Honorable Court made no reference to the hair and debris folds in the aforementioned order and Mr. Johnston seeks to clarify whether the hair and debris folds are to be included in the DNA testing. 1 The order was not clear as to whether the failure to mention the hair and debris was purposeful or inadvertent. 2
WHEREFORE, Mr. Johnston respectfully requests that this Court clarify its May 21, 2009 order in the above-styled cause as to whether the hair and debris folds are to be included in the ordered DNA testing.
IMr. Johnston will not attempt to provide any argument within this motion as to the merits of testing the hair and debris folds as the time for that has passed.
2 Judge Robert Wattles held a telephonic status conference on the afternoon of May 21, 2009 soon after the afternoon release of the aforementioned order. The State of Florida took the position that it would object to any attempt to include the hair and debris folds in DNA testing, despite the circuit court's willingness to include them for testing if the parties would stipulate to their inclusion.
-2
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing motion has been furnished by electronic transmission and u.s. Mail, postage prepaid, to Kenneth S. Nunnelley, Office of the Attorney
5th
General, 444 Seabreeze Blvd., Floor, Daytona Beach, FL 32118 on May 22, 2009.
D. TODD DOSS Florida Bar No. 0910384 725 Southeast Baya Drive Suite 102 Lake City, FL 32025-6092 Telephone (386) 755-9119 Facsimile (386) 755-3181
Counsel for Mr. Johnston
-3
Sunday, May 24, 2009
View lawyer Todd Doss in oral arguments in Florida Supreme Court in David Johnston
You can look at the oral arguments in the case of David Johnston in Florida Supreme Court here :
Lawyer Todd Doss.
The transcript of the oral arguments in David Johnston
http://www.wfsu.org/gavel2gavel/transcript/65525_09-839.html
The following is a real-time transcript taken as closed captioning during the oral argument proceedings, and as such, may contain errors. This service is provided solely for the purpose of assisting those with disabilities and should be used for no other purpose. These are not legal documents, and may not be used as legal authority. This transcript is not an official document of the Florida Supreme Court.
David Eugene Johnston v. State of Florida
SC65525 SC09-839
>> THE NEXT CASE ON THIS COURT
DOCKET IS
JOHNSTON VERSUS STATE.
>> GOOD MORNING, MAY IT
PLEASE THE COURT AND
COUNSEL, TODD DALTON ON
BEHALF OF DAVID JOHNSTON, I
BEGIN MY ARGUMENT BY
FOCUSING ON THE DENIAL OF
DNA TESTING THAT WAS
SUBMITTED IN THE CIRCUIT
COURT
THE JUDGE WADDLES HAD
ORDERED AND FOUND THAT THE
EVIDENCE THAT WE HAD
REQUESTED TO BE TESTED WOULD
NOT RESULT IN AN EXONERATION
OF MR. JOHNSTON
>> WAS THERE EVER A
DETERMINATION SPECIFICALLY
AS TO THE FINGERNAIL
SCRAPINGS, WHETHER THERE WAS
-- WHETHER THE EVIDENCE
STILL EXISTED AND WHETHER
THERE WAS SUFFICIENT AMOUNT
TO ALLOW FOR DNA TESTING?
>> JUDGE WADDLES DID NOT --
WADDLES DID NOT MAKE THAT
SPECIFIC FINDING
I HAD COMMUNICATED TO JUDGE
WADDLES I HAD BEEN TO THE
ORLANDO POLICE DEPARTMENT AT
THE HEARING, AND THERE WERE
IN FACT FINGERNAIL CLIPPINGS
THERE
AND I HAVE WENT THROUGH THE
EVIDENCE WITH THE ORLANDO
POLICE DEPARTMENT
REPRESENTATIVES TO DETERMINE
WHETHER OR NOT THIS EVIDENCE
WAS IN FACT THERE
>> THAT EVIDENCE HAS NEVER
BEEN TESTED?
BY ANYBODY?
>> THERE'S NO INDICATION
WHATSOEVER THAT IT'S BEEN
TESTED
AND THE FORENSICS SEROLOGIST
TESTIFIED THAT THERE WAS
BLOOD ON THERE, NOT ENOUGH
FOR SEROLOGY TESTING, DNA,
THERE WASN'T ENOUGH FOR
TESTING, WE'RE TALKING ABOUT
1983, 1984 AND THE
INDICATIONS WAS THERE WAS
FLESH UNDERNEATH THOSE
FINGERNAILS
>> THIS CASE IS OVER 25
YEARS OLD, CORRECT?
>>
>> AND THIS EVIDENCE HAS
BEEN AROUND SINCE THAT TIME?
THAT'S WHAT IS TROUBLING TO
ME, IS WE'VE HAD MULTIPLE
CASES INVOLVING THIS
DEFENDANT, OF COURSE, WE'VE
HAD POST CONVICTION, WE'VE
HAD HABEAS, KEYS GONE TO
FEDERAL COURT, AND YET NO
ONE EVER ASKED TO HAVE
THIS EVIDENCE TESTED BEFORE
WE HEAR, YOU KNOW, 25 YEARS
LATER ON THE EVE OF
EXECUTION AND WE FINALLY GET
A MOTION TO TEST THIS
EVIDENCE, AND YOU KNOW, IT
SEEMS TO ME THAT AS SOON AS
ANY DEFENDANT HAS, IT CAN
WAIT UNTIL THE LAST MOMENT
BEFORE AN EXECUTION IS
SUPPOSED TO TAKE PLACE AND
ASK TO HAVE THIS KIND OF
EVIDENCE TESTED
>> I CAN'T SPEAK TO ANY OF
THE PRIOR COUNSEL
I WAS APPOINTED ON
APRIL 24TH, ONCE THE WARRANT
HAD BEEN SIGNED AND I FILED
IT 12 DAYS LATER AFTER
REVIEWING THE RECORD
>> BUT YOU UNDERSTAND -- WE
UNDERSTAND YOU'RE GOING TO
DO EVERYTHING YOU CAN TO
POSTPONE THE EXECUTION, BUT
GOING BACK, AND I UNDERSTAND
THAT THERE'S NOT A SPECIFIC
TIME BAR FOR THE DNA MOTION,
BUT IN THIS CASE, AND
LOOKING BACK ON ALL THE
PRIOR POST-CONVICTION
PROCEEDINGS, ACTUAL
INNOCENCE DOES NOT LOOK LIKE
THERE WAS EVER THE THRUST OF
THIS PARTICULAR CASE
AND I CAN CERTAINLY
UNDERSTAND WHY, BECAUSE HOW
DO YOU GET AROUND THE
FOOTPRINT OF THE KITCHEN
WINDOW, THE SCRATCH MARKS ON
HIS FACE, AS LATE AS 2:00
A.M., HE DIDN'T HAVE IT, THE
BLOOD-COVERED WATCH FOUND ON
THE BATHROOM COUNTERTOP, THE
BUTTERFLY PENDANT THAT WAS
THE DEFENDANT'S ENTANGLED IN
THE VICTIM'S HAIR, HIS
ADMITTED POSSESSION OF ITEMS
FROM HER HOME, SILVER AWARE,
CANDLE -- SILVERWARE,
CANDLESTICKS, TEA POUT AND
CREATING THESE BOGUS
CONFESSIONS FROM ANOTHER
PERSON THAT HE FABRICATED
I MEAN, THIS SEEMS TO BE A
CASE OF OVERWHELMING GUILT
NOW
I MEAN, WHETHER THIS IS A
MENTALLY ILL DEFENDANT THAT
SOME TIME BACK THAT SHOULD
HAVE BEEN DEVELOPED FURTHER,
AS FAR AS WHAT IS GOING
THROUGH HIS MIND AT THE TIME
OF THE CRIME, THAT'S ANOTHER
STORY
BUT IT DOESN'T SEEM TO ME,
IN TERMS OF THE ACTUAL
INNOCENCE, THAT THERE WAS
ANYTHING THAT THE DEFENSE
LAWYER THOUGHT HE OR SHE
SHOULD BE PURSUING GIVEN ALL
OF THIS OTHER OVERWHELMING
EVIDENCE
>> WELL, WE ARE TALKING
ABOUT A PROFOUNDLY MENTALLY
ILL INDIVIDUAL THAT'S BEEN
THE SUBJECT OF MANY
COMPETENCY HEARINGS WITH
VOLUMINOUS MEDICAL RECORDS
SHOWING HE HAD BEEN FOUND
INCOMPETENT IN KANSAS AND
HAD MANY PSYCHIATRIC
>> AND I'M PUTTING ASIDE
WHETHER THIS IS A MENTALLY
ILL DEFENDANT
I KNOW THAT'S NONE OF YOUR
POINT
BUT AS FAR AS THE ACTUAL
INNOCENCE OR THIS
PROBABILITY OF AN ACQUITTAL
OR THE THRESHOLD FOR THE
3.853, A REASONABLE
PROBABILITY OF AN ACQUITTAL,
NOTHING HAS EVER -- THERE'S
NOTHING THAT TAKES AWAY FROM
ALL OF THOSE ITEMS THAT I'VE
JUST MENTIONED THAT JUST
POINT TO THAT THIS DEFENDANT
KILLED THIS ELDERLY VICTIM
>> I THINK IT DOES, AND
WHERE I WAS GOING WITH THE
FACT OF BEING MENTALLY ILL,
I THINK WE CAN DISCOUNT MUCH
OF WHAT MR. JOHNSON HAS SAID
BECAUSE IT IS THE RAMBLING
OF A MENTALLY ILL MAN
WHEN YOU LOOK AT THE
PENDANT, THE TESTIMONY
REGARDING THE PENDANT, WE
HAD ACTUALLY CITED IN OUR
REPLY BRIEF AS TO THERE WAS
CONFLICTING TESTIMONY ON
THAT WHERE THE GIRLFRIEND
INITIALLY IDENTIFIES IT AS
THE BUTTERFLY PENDANT, BUT
LATER ON, SHE SAYS THAT NO,
HE HAD A HEART-SHAPED
PENDANT ON AND DARREN
MARTIN, THAT WAS THE ROOMMATE
OF MR. JOHNSON, ALSO
TESTIFIED HE HAD A
HEART-SHAPED PENDANT
SO I DON'T THINK THAT THAT'S
AS CONCLUSIVE AS WHAT THE
CIRCUIT COURT HAD MADE IT
OUT TO BE
WE'VE ALSO ASKED TO BE ABLE
TO TEST THE FOOTPRINT
EVIDENCE THAT'S OUT THERE
THAT HAS NEVER BEEN TESTED
THAT BASICALLY WAS JUST SAID
WELL IT APPEARS TO BE THE
TREADWARE WHICH TIES
IN WITH OUR FORENSIC TESTING
MOTION AND THE NATIONAL
ACADEMY OF SCIENCE REPORT
THAT HAS SAID WE NEED
STRICTER STANDARDS, WE NEED
TO HAVE MORE RELIABILITY IN
THIS TESTING
WHEN YOU LOOK AT THE
ARGUMENT I HAD CITED FROM
THE STATE, THEY'VE NEVER
INDICATED THAT THERE WAS
ANYONE ELSE THAT WAS
INVOLVED OTHER THAN
MR. JOHNSTON AND THAT HE WAS
THE ONLY ONE IN THAT HOUSE
MR. JOHNSTON, GRANTED,
THERE'S MUCH INCONSISTENCY
IN WHAT HE SAID, WE CAN
GLEAN THAT HIS STORY IS HE
COMES IN THE HOUSE, WHOEVER
THE ATTACKER AND KILLER WAS
HAD ALREADY PERPETRATED THE
CRIME AND LEFT, SO WE HAVE
--
>> LET ME ASK YOU THIS:
WHAT ABOUT THE BLOOD ON THE
DEFENDANT'S PERSON?
HE'S GOT A SUBSTANTIAL
AMOUNT OF BLOOD ON HIM,
RIGHT?
>> THAT IS CORRECT
>> NOW, IN ALL THESE
DIFFERENT STORIES, HE'S TOLD
-- THAT HE'S TOLD, DID HE
EVER GIVE ANY INDICATION
THAT HE HAD CONTACT WITH
THIS THIRD PARTY
PERPETRATOR?
>> NOT TO MY RECOLLECTION
>> WHAT HE SAID IS HE SAW
SOMEBODY
HE NEVER INDICATED THEY HAD
SOME KIND OF COLLISION THAT
WOULD HAVE RESULTED IN THE
TRANSFER OF BLOOD FROM THIS
THIRD PARTY TO HIM, AND SO
THE BLOOD, WE CAN GLEAN FROM
THAT, WOULD BE TOTALLY --
TOTALLY INCONSISTENT
IF YOU'RE LOOKING FOR SOME
EVIDENCE THERE, IT WAS -- IT
WOULD BE TOTALLY
INCONSISTENT WITH ANYTHING
THE DEFENDANT EVER SAID,
RIGHT?
>> I DON'T THINK SO
HE HAD TESTIFIED THAT HE
COMES IN AT ONE POINT -- OR
THAT HE MAKES A STATEMENT,
HE NEVER TESTIFIED, BUT HE
MAKES A STATEMENT THAT HE
COMES IN THE ROOM AND
APPROACHES TO WHERE THE
VICTIM IS AND LEANS DOWN AND
GRABS A HOLD OF HER ON THE
BED
WE DON'T KNOW IF THERE'S ANY
MIX OF THIS OTHER
PERPETRATOR WITH HIS BLOOD
OUT SOMEWHERE THERE BECAUSE
THE INDICATION FROM HER
FINGERNAILS IS SHE STRUGGLED
WITH WHOEVER THE ATTACKER
WAS, THUS THE BLOOD AND THE
FLESH ON THERE, AND I THINK
OUT OF ALL THE THINGS WE'VE
REQUESTED TESTING THAT
THAT'S THE MOST DEFINITIVE,
BECAUSE WHEN YOU LOOK AT THE
CLOSING ARGUMENT, THE
CLOSING ARGUMENT THAT THE
PROSECUTOR AT THE TIME MAKES
IS THIS VICTIM IS SCRATCHING
AND CLAWING FOR HER LIFE ON
HER BED AND THAT'S WHERE THE
SCRATCH ON MR. JOHNSTON'S
FACE HAD COME FROM, AS
OPPOSED TO HIS STORY THAT HE
HAD IN FACT PURCHASED A
PUPPY THAT DAY AND WHEN HE
WAS MAKING WITH THE PUPPY
THAT IT HAD SCRATCHED HIM
THERE IS EVIDENCE TO
CORROBORATE THE FACT THAT HE
DID BUY A PUPPY THAT DAY,
THERE IS OTHER TESTIMONY TO
SAY THAT WELL, I DIDN'T SEE
A SCRATCH ON HIM WHENEVER HE
LEFT AT 12:00 WITH THE TIME
AND DEATH BEING SOMEWHERE
BETWEEN 3:00 AND 4:00, BEST
WE CAN TELL
THE EVIDENCE OF THOSE
FINGERNAILS, THOUGH, I
THINK, IS CRITICAL HERE
IT WASN'T AVAILABLE BACK IN
1983-'84, WE HAD THE SIMPLE
SEROLOGY TESTING THAT WAS
NOT NEAR AS ACCURATE AS WE
HAVE NOW, PARTICULARLY THE
MITOCHONDRIAL TESTING OR THE
REPEAT TESTING WE CAN NOW DO
THE FURTHER CERTAIN AND I
CITE THUNDERSTORM IN MY
BRIEF IS THE CASE THAT'S
CURRENTLY PENDING BEFORE THE
U.S. SUPREME COURT,
OSBOURNE, WHERE IT DEALS
WITH ACCESS TO DNA EVIDENCE
AND WHETHER OR NOT DENYING
ACCESS TO THE DNA EVIDENCE
IS A DUE PROCESS VIOLATION
IN AND OF ITSELF, AND I
THINK THAT MR. JOHNSTON HAS
A RIGHT HERE AS TO ACCESSING
THIS EVIDENCE AND HAVING IT
TESTED, AND THAT WHEN WE
LOOK AT IT IN THE SCHEME OF
THINGS, THAT THE TESTING
WON'T TAKE THAT LONG
IT'S EITHER GOING TO BE
SHOWING THAT SOMEONE ELSE'S
DNA IS THERE OR IT'S GOING
TO BE SHOWING THAT HIS DNA
IS THERE, OR POSSIBLY
INCONCLUSIVE
AT THAT POINT, IT'S MUCH
MORE DEFINITIVE AS FAR AS
GOING FORWARD WITH THE
EXECUTION OF MR. JOHNSTON
HE'S COMPLIED WITH EVERY
ASPECT OF 3.853, WITH NO
TIME LIMITATION BEING THERE
I UNDERSTAND THIS COURT'S
CONCERN, BUT THERE'S NO TIME
LIMITATION THERE, AND
MR. JOHNSTON HAS LAID OUT
EACH AND EVERY ASPECT OF
3.853, THE ONLY THING THAT
JUDGE WADDLES
IS HUNG ON IS THIS
EVIDENCE THAT WOULD
EXONERATE HIM OR NOT
NOW, WHEN I DISCUSSED THE
FIRST BORN CASE, I USE THAT AS
A PREDICATE TO ESTABLISH
THAT WE'RE ALSO ENTITLED TO
THIS FORENSIC EVIDENCE
THAT'S THERE, SUCH AS THE
FOOTPRINT
I HAVE REPRESENTED TO JUDGE
WADDLES THERE IN THE TRIAL
COURT THAT I'VE PERSONALLY
SEEN THE CASTS, THE CASTS
ARE STILL THERE, THE
FOOTPRINT EVIDENCE IS STILL
THERE SO THAT WE CAN HAVE
SOMEONE DO A MORE RIGOROUS
EXAMINATION THAN WHAT WAS
REVEALED IN THE TRIAL
TRANSCRIPT, WHICH BASICALLY
THEY JUST SAID IT APPEARED
TO BE SO
THEY DIDN'T REALLY GO
THROUGH A WHOLE LIST OF
QUALIFICATIONS
>> NOW, ON SOMETHING THAT'S
NOT BEING DNA TESTED, AND
YOU'VE SAID THE FOOTPRINT
HAS -- THE CAST HAS BEEN
THERE, YOU DON'T HAVE A
FREESTANDING RIGHT JUST TO
HAVE ANYTHING TESTED
I MEAN, THE GOVERNOR CAN SAY
YES, I CAN GET IT TESTED BUT
IT CAN'T -- IF IT CAN'T BE
DNA TESTS, WHERE IS THE
AUTHORITY THIS COURT HAS IN
-- LET'S SAY LET'S ORDER
TESTING OF ALL OTHER ITEMS?
>> I HAD CITED TO THE
OSBOURNE CASE WHERE THE
ARGUMENT WAS MADE --
>> THE U.S. SUPREME COURT
>> IT'S BEFORE THE U.S.
SUPREME COURT, HOWEVER, THE
UNITED STATES NINTH CIRCUIT
OF APPEALS HAD INDICATED IT
DIDN'T LIMIT THEIR RULING TO
DNA EVIDENCE
IT SAID BIOLOGICAL EVIDENCE
I THINK THAT THAT'S MORE --
>> BUT YOU WOULD AGREE THE
STATUTE WHICH DOESN'T HAVE A
TIME LIMIT IS LIMITED TO DNA
EVIDENCE?
>> ABSOLUTELY 3.853 IS
LIMITED TO DNA EVIDENCE, AND
THAT'S WHY JUDGE PARIENTE,
BROUGHT IT IN TWO MOTIONS,
BECAUSE I UNDERSTAND WE'RE
TALKING ABOUT TWO SEPARATE
MECHANISMS, TWO SEPARATE --
>> WAS THE FOOTPRINT EVER
CHALLENGED?
I KNOW THAT THERE HAVE BEEN
CASE THAT IS TALK ABOUT A
LOT OF THE SCIENCE THAT IS
USED
THE FOOTPRINT ANALYSIS HAS
COME UNDER FIRE AS ONE OF
THE AREAS THAT REALLY ISN'T
AS ACCURATE AS WE MIGHT HAVE
FIRST THOUGHT, BECAUSE AS
JUDGE QUINCE SAID, THERE
HAVE BEEN CONVICTION PHASE A
COUPLE OF DECADES AND I
DON'T RECALL THERE BEING A
CHALLENGE, REFRESH MY
RECOLLECTION, TO THE
FOOTPRINT EVIDENCE
>> I DON'T RECALL THAT THAT
HAD EVER BEEN CHALLENGED
HAD IT BEEN CHALLENGED, I
WOULD HAVE PRESENTED IT TO
THE COURT WHATEVER THE
RESULTS WITH WERE AND I
CAN'T ANSWER THE QUESTION AS
TO WHY IT HASN'T BEEN
>> I THINK POST-CONVICTION,
IT WASN'T ARGUED THAT NOW WE
HAVE A FOOTPRINT EXPERT THAT
CAN SHOW THIS MIGHT NOT BE
OR WASN'T MR. JOHNSTON'S
FOOTPRINT
>> I HAVE NO INDICATION --
>> I MEAN, I UNDERSTAND, YOU
CAME IN APRIL, AND YOU ARE
CERTAINLY, HAVE DONE A YEOMAN'S
JOB ON MR. JOHNSON'S HALF BUT
THROWING ALL OF THIS OUT AFTER
25 YEARS, IS -- YOU KNOW, IS
JUST -- TURNS THE PROCESS ON ITS
HEAD.
AND THE TIME LIMITS THAT ARE
IMPORTANT FOR, YOU KNOW, IN THE
SCHEME OF THE WAY DEATH CASES GO
AND I THINK -- I DON'T THINK ANY
AUTHORITY, FOR TO YOU ORDER
ANYTHING OTHER THAN THAT -- THE
DNA TESTING ASSUMING, THERE IS A
THRESHOLD ON THAT.
>> I THINK THERE IS A DUE
PROCESS RIGHT AND THAT IS WHY I
SPECIFICALLY LINKED IT TO
OSBORNE AND ALSO, IT DOVETAILS
INTO THE NEWLY DISCOVER CLAIM
REGARDING THE NATIONAL ACADEMY
OF SCIENCES REPORT THAT CAME OUT
AND CALLS INTO QUESTION, MUCH OF
WHAT HAS BEEN DONE, IN THESE
OTHER FORENSIC SCIENCE AREAS, AS
ILLUMINATED BY DNA TESTING --
>> HAVEN'T WE REALLY CROSSED THE
BRIDGE WITH REGARD TO STUDIES
AND THOSE KINDS OF THINGS WITH
REGARD TO WHETHER THESE THINGS
ARE REALLY NEWLY DISCOVERED
EVIDENCE.
AS OPPOSED TO FACTUAL MATTERS
DEALING WITH THE CASE, HAVEN'T
WE ALREADY CROSSED THAT...
>> MY UNDERSTANDING OF THE
COURT'S CASE LAW REGARDING THAT
IS THAT IT NEEDS TO BE TIED
SPECIFICALLY TO A PARTICULAR
CASE, AND I AM AWARE OF RUTH
FORD AND THAT -- THE WHOLE LINE
OF CASE THAT'S DEALT WITH THE
ABC REPORT WHICH I SUBMITTED A
MUCH MORE GENERAL REPORT THAN
WHAT WE HAD WITH THE NATIONAL
ACADEMY OF SCIENCES AND IS MORE
IN LINE WITH WHAT I CITED, WHERE
THE COURT RELINQUISHED
JURISDICTION SO TREPAL COULD
HAVE AN EVIDENTIARY HEARING AND
THE ABILITY TO LINK THE FBI
REPORT REGARDING FRAUD IN THAT
LAB TO HIS CASE, THE COURT NEVER
INDICATED THIS WASN'T
NECESSARILY NEWLY DISCOVERED
EVIDENCE, IN AT THE TREPAL CASE
AND IT SAID IT WASN'T
ESTABLISHED THAT IT ROSE TO THE
LEVEL OF WARNING RELIEF FOR
TREPAL I DIDN'T TAKE THAT AS A
CATEGORICAL EXEMPTION AND I
SPECIFICALLY -- DIDN'T LINK IT
SPECIFICALLY TO THE CASE AND THE
SPECIFIC PIECES OF EVIDENCE THAT
WERE ADMITTED INTO
MR. JOHNSTON'S CASE SO THAT THIS
COURT COULD SEE, THE VALUE OF
THAT.
AND I THINK, TOO, WHEN WE ARE
TALKING ABOUT THAT KIND OF
EVIDENCE AND TALKING ABOUT
EXONERATION THERE WERE 14 PRINTS
THAT WERE LIFTED WITHIN THE
VICTIM'S HOME.
FOR YOU WERE USABLE.
AND WERE ACTUALLY COMPARED TO
MR. JOHNSTON TO THE VICTIM AND
TO KEVIN WILLIAMS, THE SUBJECT
OF ALERT SUPPOSEDLY WRITTEN BY
HIM AND LATER DEBUNKED AND IT
DIDN'T MATCH THAT AND WHEN WE
COME AND ASK ABOUT EXONERATION
AND THE POSSIBILITY THAT THERE
IS SOMEONE ELSE'S FLESH AND
SOMEONE ELSE'S BLOOD UNDER
THERE, AT A REASONABLE
PROBABILITY THERE IS SOMETHING
ELSE THERE AND IT IS HEIGHTENED
BY MR. JOHNSTON'S MENTAL ILLNESS
THAT HE IS -- RAMBLING OF A
PROFOUNDLY MENTALLY ILL MAN AND
I THINK IT IS BEYOND DISPUTE
HE'S MENTALLY ILL AND HEIGHTNESS
THE NEED TO CORROBORATE WHAT
HE'S SAYING AND SIT IN CONTRAST
TO WHAT THE PROSECUTOR ARGUED IN
CLOSING ARGUMENT I CITED IN MY
BRIEF.
>> YOU ARE WELL INTO YOUR
REBUTTAL IF YOU WANT TO SAVE
SOME TIME.
>> THANK YOU VERY MUCH.
>> MR. NUNNELLEY.
>> I REPRESENT THE STATE OF
FLORIDA.
LET ME START --
>> COULD YOU START IN THE PART?
HOW LONG DID MR. JOHNSTON
EFFECTIVELY NOT HAVE A LAWYER
BECAUSE THE PRIOR LAWYER OR THE
CTCC HAD MOVED FOR WITHDRAWAL,
WHAT IS THE TIMEFRAME?
>> IF I... I'M MATH CHALLENGED
THIS MORNING, JUSTICE PARIENTE.
MAYBE A YEAR.
I THINK --
NO, NO, I'M SORRY, NOVEMBER OF
LAST YEAR, I BELIEVE, IS WHEN
THE MOTION TO WITHDRAW WAS
FILED.
>> AND THEY -- WHAT WAS THE
BASIS FOR THEIR MOVING FOR
WITHDRAWAL.
>> THEY WERE TOO BUSY.
>> THIS IS THE CTRC MENTAL.
>> YES MA'AM THE BASIS OF THEIR
MOTION TO WITHDRAW WAS THEY WERE
TOO BUSY TO DO THE CASE.
>> AND WHEN IT WAS SIGNED, THE
JUDGE HEARD IT AND DECIDED THEY
WEREN'T TOO BUSY AND APPOINTED
MR. DODD AS COUNSEL.
>> WELL, JUDGE WALLACE NEVER --
HE LET CCRC OUT ON THE POINT OF
MR. DOS AND DIDN'T MAKE FINDINGS
ON WHETHER THEY WERE TOO BUSY,
THEY WERE THERE AND SAID WE
CAN'T DO IT WEEKS HAVE THE FILES
BOX U. DOWNSTAIRS AND THE JUDGE
SAID, MR. DOSS YOU WOULDN'T TAKE
THE -- WANT TO TAKE THE CASE AND
TO HIS CREDIT, HE SAID, YES,
SIR, I AM.
>> BUT AT THE POINT THEY SAID
THEY WERE TOO BUSY WAS THERE
ANYTHING GOING ON IN MORE
JOHNSTON'S CASE?
>> NO.
>> HAVE THEY JUST...
>> [INAUDIBLE].
>> YOU GOT THE FREE BE I GUESS.
>> THAT'S OKAY.
>> I'M I MEAN, I'M CONCERNED
BECAUSE WARRANTS ARE GETTING
SIGNED AND THIS ENDED UP
HAPPENING, THIS IS -- IT IS
DETRIMENTAL TO THE
ADMINISTRATION OF JUSTICE IF YOU
HAVE A NEW LAWYER JUMPING IN
LESS THAN 30 DAYS BEFORE AN
EXECUTION AND NOW HAVING TO LOOK
AT THE WHO'LL THING AND NOW,
MAYBE CCR MENTAL SHOULD HAVE
BEEN LOOKING AT THE ISSUE, IT
SEEMS LIKE THE FINGER IS NOW...
[INAUDIBLE] CAN YOU HELP ME
ANYBODY MORE ON WHETHER THINGS
STARTED TO HAPPEN, IN
MR. JOHNSTON'S CASE AND CCRC
MENTAL SAYS WE ARE TOO BUSY OR
JUST FILED IT IN MR. JOHNSTON'S
CASE AND NO OTHER CASE?
WE CAN'T REPRESENT THE DEFENDANT
BECAUSE WE ARE TOO BUSY.
>> LET ME ANSWER THAT IN THE
WAY:
OKAY.
THE LAST PROCEEDING -- LAST RUN
THROUGH THIS COURT WAS THE
MENTAL RETARDATION PROCEEDING IN
2006.
WHEN MR. JOHNSTON WAS
REPRESENTED BY ED MILLS.
MR. MILLS HANDLED THAT --
>> AND WHO WAS HE.
>> HE WAS REGISTRY COUNSEL
APPOINTED BY JUDGE WALLACE WHO
REPRESENTS MR. JOHNSTON AS I
RECALL AND THIS IS A LOT OF
DUSTY FILES, JUSTICE PARIENTE
BUT BOTTOM LINE, MR. MILLS WAS
APPOINTED, TRIED THE MENTAL
RETARDATION HEARING, AND STAYED
IN THE CASE, FOR A PERIOD OF
TIME, AFTER THAT, I DON'T
HONESTLY REMEMBER IF HE SOUGHT
CERTIFICATE REVIEW OR NOT, I
DON'T KNOW, DOESN'T MATTER,
ULTIMATELY, MR. MILLS SAID --
APPARENTLY REACHED THE
CONCLUSION THERE IS NOTHING MORE
I CAN DO AND FILED THE MOTION TO
WITHDRAW WHICH WAS GRANTED.
>> BUT UNDER THE SYSTEM HE'S
SUPPOSED TO STAY IN UNTIL THE
EXECUTION.
ISN'T THAT -- I MEAN, WE NEED --
THESE THINGS, BECAUSE WE NEED TO
KNOW THERE HAS BEEN -- I THINK
THE ATTORNEY GENERAL'S OFFICE
NEEDS TO MAKE SURE THE
GOVERNOR'S OFFICE NEEDS TO KNOW
THE SYSTEM MAY START TO BE
BREAKING DOWN, BECAUSE EITHER
THERE ARE NOT EFFICIENT REGISTRY
COUNSEL FOR CCRC MENTAL OR STAFF
ARE TOO BUSY, WE CAN'T THEN --
IT PUTS THIS COURT IN A POSITION
OF INSTEAD OF MR. JOHNSTON
HAVING ONE PERSON REPRESENTING
HIM OVER THE LASTING, YOU KNOW,
DECADE, HE'S NOW HAVING SOMEBODY
COMING IN FOR THIS AND SOMEONE
COMING IN FOR THAT, AND MAYBE
THAT IS THE REASON WHY NOBODY
LOOKED AT THE WHOLE CASE TO SAY,
THERE IS AN ISSUE THAT NEEDS TO
BE EXPLORED.
>> AFTER MR. MILLS WAS ALLOWED
OUT, ANOTHER REGISTRY ATTORNEYS
WAS PROMPTLY APPOINTED, A
MR. SOLIS I BELIEVE IT IS.
SOLIS, I THINK.
AND HE APPOINTED TO THE CASE, BY
JUDGE WADDLES, AND SOME SEVERAL
MONTHS, 6, 8, 10 MONTHS, LATER,
HE FILES A MOTION TO WITHDRAW.
STATING THAT I HAVE REVIEWED THE
FILES AND RECORDS AND I SEE
NOTHING THAT I CAN RAISE.
>> MR. NUNNELLEY, HEARS MY
CONCERN, YOU HAVE A CASE, THE
DEFENDANT IS IN NO HURRY FOR...
[INAUDIBLE] THEY FILE A MOTION
TO WITHDRAW.
DISMISSED.
NO ONE IS SCHEDULED FOR THE
HEARING.
[INAUDIBLE] INTO THIS WOULD BE
THE CCR MOTION.
>> RIGHT.
MOTION TO WITHDRAW AND UNTIL
THAT IS RESOLVED, I THINK YOU
KNOW, YOUR OFFICE KNOWS, THE
CASE IS NOT GOING ANYWHERE.
WHY IS IT THAT YOUR OFFICE
[INAUDIBLE] WHY DID YOU NOT
SCHEDULE IT FOR A HEARING.
>> THERE WAS NO ACTION GOING ON
IN THE CASE.
CCRC HAD MOVED TO WITH DRAW, IT
WAS THEIR MOTION AND WOULD HAVE
BEEN THEIR BURDEN TO SEEK A
RULING ON THAT MOTION, AND UNTIL
THAT MOTION IS RULED ON THEY
REPRESENT THE MAN, THEY ARE
STATUTORILY CHARGED TO REPRESENT
HIM.
>> THEY FILED A MOTION, DIDN'T
SCHEDULE IT FOR A HEARING.
IT SITS THERE FOR A YEAR.
WHY DOESN'T YOUR OFFICE SCHEDULE
FOR A HEARING, AD AND LET'S
BRING IT TO A HEAD AND GET GOING
ON THIS.
OTHERWISE, IT HAPPENS WHEN THE
GOVERNOR SIGNS THE EXECUTION
WARRANT.
>> I CANNOT GIVE YOU AN ANSWER
FOR THAT.
PERHAPS WE SHOULD HAVE.
BUT, ON THE OTHER HAND, CCR AS
THE MOVING PARTY, IS THE ONE
THAT HAS THE BURDEN TO GET THE
CASE IN FRONT OF THE COURT.
IF THEY WERE -- IF THEY WANT TO
-- A RULING ON THEIR MOTION THEY
NEED TO ASK FOR IT.
>> YOU ARE SAYING, THERE WAS A
SECOND REGISTRY COUNSEL WHO THEN
MOVED TO WITHDRAW AND IS THAT
WHEN --
>> CCRC WAS APPOINTED AND IT WAS
SOMETIME AFTER THAT, NOT
IMMEDIATELY, SOMETIME LATER,
THAT THEY CAME IN, SAYING, WE
ARE TOO BUSY TO HANDLE THIS
CASE.
>> THE IMPLICATION THERE IS,
THERE ARE OTHER THINGS THAT ARE
AVAILABLE TO DO, WE ARE JUST TOO
BUSY TO DO IT, BECAUSE,
CERTAINLY, CAN'T BE TOO BUSY TO
DO NOTHING.
WHICH IS WHAT YOU ARE SAYING THE
OTHER REGISTRY COUNSEL --
>> THEY DID NOT SAY THAT THEY
WERE TOO BUSY TO DO NOTHING.
THEY SAID, WE CAN NOT -- CANNOT
TAKE THIS CASE INTO OUR OFFICE.
>> LET ME ASK YOU, AND MAYBE
THIS IS WHERE YOU ARE GOING.
I'M CONCERNED, I DON'T KNOW HOW
CONCERNED I AM, BUT I AM
CONCERNED THAT DNA TESTING WAS
NEVER DONE ON THESE FINGER NAIL
SCRAPINGS, WHICH COULD EITHER
CONCLUSIVELY SHOW MR. JOHNSTON
IS THE PERPETRATOR, OR, RAISE
GENUINE CONCERNS IF IT IS
POINTED TO ANOTHER PERSON, I
MEAN, DNA, WHY DIDN'T THE STATE
JUST SAY, YOU KNOW, OKAY.
WE'LL HAVE THIS -- THESE
FINGERNAIL DESCRIPTIONS, DNA
TESTED AND HOW COME THAT WAS
NEVER DONE?
I DON'T UNDERSTAND IT.
>> I'LL GIVE YOU TWO ANSWERS AND
I DON'T MEAN TO BE INTEMPERATE
WITH THE FIRST ONE --
INTEMPERATE WITH THE FIRST ONE,
JUSTICE, I REALLY DON'T BUT IT'S
NOT THE STATE'S BUSINESS TO
RETRY FINAL CASES AND THIS
SECOND REASON WHICH IS REALLY
THE FIRST REASON I SUPPOSE, IS
THIS IS NOT AND NEVER HAS BEEN A
LABORATORY EVIDENCE CASE.
THIS IS A CASE THAT IS BASED
UPON THE EVIDENCE THAT YOU
DISCUSSED WITH MR. DOSS THE
BUTTERFLY PENDANT FOUND IN THE
VICTIM'S HAIR AND THE BLOOD ON
THE DEFENDANT'S CLOTHING, THAT
HAS NEVER, EVER, EVER BEEN
DISPUTED AS TO WHOSE IT WAS,
UNTIL MAY OF THIS YEAR.
THE FOOTPRINT FOUND OUTSIDE THAT
HAS NEVER, EVER, EVER BEEN
DISPUTED IN 25 YEARS, UNTIL NOW
--
>> DID MR. JOHNSTON SAY AT SOME
POINT THAT HE PICKED THE VICTIM
UP.
>> YES, MA'AM --
>> FOUND HER AND SO, I MEAN,
THEORETICALLY THAT IS HOW SOME
BLOOD COULD HAVE GOTTEN ON HIS
PERSON.
>> THIS IS --
>> WAIT A MINUTE.
OKAY.
>> I'M SORRY.
>> THERE ARE OTHER EXPLANATIONS
FOR SOME OF THE EVIDENCE THAT --
EXPLANATIONS FOR SOME OF THE
EVIDENCE WE DO HAVE AGAINST HIM
AND THAT IS WHY IT IS OF CONCERN
THAT THESE OTHER PIECES OF
EVIDENCE WERE NEVER TESTED.
I AM TRULY CONCERNED THAT WE
DON'T HAVE A RULE THAN REQUIRES
YOU, IF THERE IS SOMETHING YOU
WANT TO HAVE TESTED, THAT YOU
ASK FOR THE IT BEFORE YOU KNOW,
THE GOVERNOR SIGNS A DEATH
WARRANT, BUT, BE THAT AS IT MAY
IT SEEMS TO ME THAT SOME OF THE
OTHER EVIDENCE AGAINST
MR. JOHNSTON, THERE ARE OTHER
EXPLANATIONS FOR.
THIS SEEMS TO BE REALLY
SOMETHING THAT COULD, YOU KNOW,
PUT THE NAIL ON IT, AS IT WERE,
BECAUSE IT'S EITHER HIS DNA
UNDER THE LADY'S FINGER NAILS OR
IT ISN'T.
>> LET ME ANSWER THAT BEST I
CAN, YOU MAY HAVE TO HELP ME OUT
WITH SOME OF THIS HERE, JUSTICE
QUINCE, I'M NOT SURE I WILL BE
ABLE TO REMEMBER ALL OF IT.
THE BOTTOM LINE IS THAT
MR. JOHNSTON HAS HAD THE
AVAILABILITY OF DNA TESTING WHEN
HE WAS REPRESENTED BY OLD CCR.
CCR-NORTH, BEFORE THEY WERE
DISSOLVED.
HE COULD HAVE SOUGHT DNA TESTING
THEN.
ANDREWS HAD JUST COME OUT.
EVERYBODY KNEW ABOUT DNA.
HE DIDN'T DO IT.
YOU HAVE IN THE CASE, WHILE
MR. JOHNSTON, THROUGH HIS
STATEMENTS, HAS TRIED TO EXPLAIN
-- AND I BELIEVE THERE ARE
EITHER FIVE OR SIX OF THEM, HE
TRIED TO EXPLAIN AWAY EVERYTHING
KIND OF PIECE BY PIECE, WHEN HE
FOUND OUT, FOR EXAMPLE, THAT LAW
ENFORCEMENT KNEW THAT HE HAD
THAT HE HAD SCRATCHES ON HIS
FACE AND NEXT, HE SAID I BOUGHT
A PUPPY AND THE PUPPY SCRATCHED
ME.
WHEN HE FINDS OUT THE BUTTERFLY
PENDANT IS TANGLED UP IN THE
VICTIM'S HAIR, HE SAYS, OH, I
HAVE KNOWN HER TWO OR THREE
YEARS AND I GAVE IT TO HER AS A
GIFT.
NEVER MIND THE FACT THAT HIS
FORMER FIANCEE TESTIFIED THAT
SHE -- AND SHE WORKED IN A
CONVENIENCE STORE, NOT TERRIBLY
FAR FROM THE CRIME SCENE,
TESTIFIED THAT SHE GAVE THAT
NECKLACE TO HIM AND THAT HE WAS
WEARING IT WHEN SHE SAW HIM,
SHORTLY BEFORE THE MURDER TOOK
PLACE.
NOW, THERE WAS TESTIMONY --
>> CAN YOU ADDRESS THE COMMENT
THAT OPPOSING COUNSEL MADE ABOUT
A HEART-SHAPED PENDANT AS
OPPOSED TO A BUTTERFLY PENDANT.
>> YOU ARE READING MY MIND,
JUSTICE!
YEAH.
THERE IS TESTIMONY, THAT HE HAD
A HEART-SHAPED NECKLACE ON ALSO.
THAT IS WHAT THAT TESTIMONY IS
ABOUT.
NONE OF THE WITNESSES ARE -- AND
LET ME... I WOULD DIRECT THE
COURT TO 572 AND 577, OF THE
RECORD.
AGAIN, FOLLOWED BY 713 OF THE
RECORD, WHERE MR. BARTON IS
TALKING ABOUT HIM HAVING ON A
HEART-SHAPED NECKLACE AND HE
SAID, YEAH, HE HAD ON THAT BUT
HE WAS NOT ASKED, DID HE OR DID
HE NOT HAVE A BUTTERFLY NECKLACE
ON HIM, THAT BUTTERFLY NECKLACE
WAS ON HIS NEXT UNTIL IT WAS
RIPPED OFF BY HIS VICTIM WHEN HE
KILLED HER AND THAT
MR. JOHNSTON'S WATCH, COVERED
WITH BLOOD AND FOUND IN THE
VICTIM'S APARTMENT BY THE
BATHROOM SINK DOESN'T CHANGE.
HE HAD IT ON SHORTLY PRIOR TO
THE MURDER.
>> I WANT TO ASK YOU, BACK TO
THE FINGER NAIL SCRAPINGS.
DOES THE STATE KNOW OR WAS THERE
ANY INQUIRY AS TO WHETHER THESE
SCRAPINGS STILL EXIST AND HAVE
SUFFICIENT AMOUNT OF MATERIAL TO
ALLOW FOR DNA TESTING?
>> I CAN ANSWER HALF OF THAT
QUESTION.
MY UNDERSTANDING FROM REVIEWING
THE EVIDENCE LOGS MAINTAINED BY
THE POLICE DEPARTMENT IS THAT
ITEMS DENOTED AS, QUOTE,
FINGERNAILS, CLOSE QUOTE, REMAIN
IN EVIDENCE AT ORLANDO PD.
WHETHER OR NOT THERE IS ANYTHING
UNDER OR CONTAINED IN OR ON
THOSE FINGERNAILS THAT CAN BE
TEST ORDER NOT, I DO THE NOT
KNOW.
WHETHER -- AND WHETHER -- AND I
SAY, WHETHER IT CAN OR CANNOT BE
TESTED, I MEAN, FIRST OF ALL,
DOES IT EXIST?
B, IS IT IN SUFFICIENT QUANTITY
TO BE TESTED AND, C, IS IT EACH
IN SUCH A STATE THAT TESTING IS
EVEN POSSIBLE.
I DO NOT KNOW THE ANSWER TO
THOSE QUESTIONS.
>> BUT IT WAS A RELEVANT ISSUE
AT TRIAL, THAT IS, THE
FINGERNAIL SCRAPINGS, AND
MR. HALL, WHO WAS ONE OF THE
WITNESS -- EXPERT WITNESSES WAS
ASKED WHY THEY WERE NOT ANALYZED
AND HIS -- OF COURSE AGAIN, IT
IS PRE-DNA AND HE SAID,
SOMETHING ABOUT IT IS OUTSIDE OF
MY FIELD TO DO IT.
SO, THERE IS NEVER IN THE
MEDICAL -- AND THE MEDICAL
EXAMINER CONFIRMED HE TOOK
SAMPLES FROM THE VICTIM'S
FINGERNAILS AND THERE IS NO REAL
EXPLANATION AS TO WHY THEY
WOULDN'T HAVE BEEN TESTED AND,
OF COURSE, DNA TESTING OF THIS
TYPE WAS NOT AVAILABLE --
CERTAINLY NOT AVAILABLE AT THE
TIME OF TRIAL.
AND THE PROSECUTOR ARGUED THAT
THE VICTIM WAS SCRATCHING AND
CLAWING AT JOHNSTON, BASING THAT
ON THE SCRATCH MARKS.
SO WHETHER YOU CALL IT THAT -- I
MEAN -- LET ME ASK YOU THIS
QUESTION:
IF THESE WERE TESTED AND IT
SHOWED THE DNA UNDER HER
FINGERNAILS DID NOT COME FROM
MR. JOHNSTON AND WAS -- NOT FROM
HER, WOULD THAT BE PRETTY
POWERFUL EVIDENCE?
>> NOT COUPLED WITH ALL OF THE
REST OF IT, BECAUSE, WHAT YOU
HAVE IN THE -- IN THIS CASE,
FIRST OF ALL, MR. JOHNSTON IS
STUCK WITH HIS STORY ABOUT THE
PUPPY SCRATCHING HIS FACE.
THE STATE OF THE EVIDENCE IS,
THAT THAT DID NOT HAPPEN.
IT IS UNDISPUTED THAT THE
BUTTERFLY PENDANT THAT WAS FOUND
IN ENGINE -- ENTANGLED IN THE
VICTIM'S HAIR, HAD A BROKEN
CHAIN.
THAT IS NOT DISPUTED.
IT IS A REASONABLE IN FENCE FROM
THE EVIDENCE --
INFERENCE FROM THE EVIDENCE,
REGARDLESS OF WHAT DNA TURNS UP
IN THE FINGER NAILS, IN THE
COURSE OF THE STRUGGLE, THAT IS
HOW THAT HAPPENED AND BOMB LINE,
JUSTICE PARIENTE, THE STATE'S
CASE DOESN'T CHANGE A BIT, BASED
UPON THE DNA EVIDENCE.
WE HAVE THE VICTIM'S BLOOD ON
THE DEFENDANT.
NEVER HAS BEEN DISPUTED.
IT WAS NEVER DISPUTED UNTIL THIS
MONTH.
>> WAS IT TEST --
>> MATCHED UP AB-O GROUP.
>> AND ON THE CLOTHING.
>> YES, MA'AM.
THAT WAS TESTED TO THE EXTENT OF
1984 TECHNOLOGY.
NO QUESTION ABOUT THAT.
HE'S ALWAYS SAID -- I MEAN, HE
SAID, HE GOT THE VICTIM'S BLOOD
ON HIM AND WHEN HE PICKED HER UP
AND CRADLED HER HEAD AND CRIED
OVER HER BODY WAS THE STORY HE
GAVE IN ONE OF HIS MULTIPLE
STATEMENTS, BUT THE BOTTOM LINE,
YOU HAVE AN ALIBI DEFENSE THAT
COLLAPSED.
YOU HAVE AN ATTEMPT BY JOHNSTON
TO POINT THE FINGER AT THIS
KEVIN WILLIAMS PERSON.
THAT COLLAPSED.
YOU HAVE JOHNSTON TAKING ITEMS
FROM -- RATHER, LET ME BACK UP.
TAKE PILLOW CASE OUT OF THE
VICTIM'S HOUSE AND GATHERING UP
A BUNCH OF ITEMS AND TAKE THEM
NEXT-DOOR AND HIDING THEM AT THE
DEMOLITION SITE NEXT-DOOR WHERE
HE WAS WORKING CLAIMING HE TOOK
THEM AS A MEMENTO OF THE VICTIM.
>> I UNDERSTAND AND YOU ALSO
HAVE A DEFENDANT WHO WAS THE ONE
THAT CALLED THE POLICE AND SAID,
YOU KNOW, CRYING, SOMEBODY
KILLED MY GRANDMA.
SO IT'S NOT LIKE HE -- I MEAN,
COMMITTED THE CRIME AND THEN
TRIED TO HIDE.
HE, I MEAN -- HE CALLED THE
POLICE.
NOW --
>> GAVE THEM A FAKE NAME WHEN HE
DID, TOO.
>> WHAT.
>> GAVE A FALSE NAME WHEN HE
DID.
>> I MEAN, THE HOME -- MAYBE THE
MURDERER IS EXPLAINED BY
SOMEBODY WHO IS MENTALLY ILL, I
MEAN, IT IS A VERY -- SEEMS LIKE
A VERY BIZARRE SET OF
CIRCUMSTANCES.
NOT THAT WE DON'T SEE THIS.
>> FORTUNATELY WE DON'T HAVE TO
-- THEY ARE NOT RATIONAL -- THEY
ARE FREQUENTLY NOT RATIONAL
ACTS.
BUT, LET ME -- SINCE YOU MENTION
THE MENTAL ILLNESS, LET ME --
>> THERE IS NO MENTAL
MITIGATION, IN THE CASE.
>> NO, THAT WAS AN ISSUE IN THE
'90S, THE 1991, 5850, AND '91,
'92, BEFORE I HAD THE CASE, AND
LET ME MENTION AND TOUCH ON THAT
A BIT.
WE ARE SEEING FOR THE FIRST TIME
AND I'M NOT TAKING A SHOT AT
MR. DOSS HE'S DOING A GOOD JOB
AND DOING THIS BEST HE CAN WITH
WHAT HE'S GOT AND THE FACT HE'D
DEFEND THE CASE IN
POSTCONVICTION DIFFERENTLY FROM
THE WAY IT HAS BEEN DONE BEFORE
IS NOT THE STANDARD, NOT WHAT WE
ARE HERE ABOUT.
WE ARE HERE ABOUT AND TO THE
EXTENT WE ARE TALKING ABOUT A
MENTAL ILLNESS CLAIM THAT, CLAIM
HAS NEVER, EVER BEEN RAISED TO
CHALLENGE MR. JOHNSTON'S
STATEMENTS UNTIL NOW.
AND THAT COMPONENT OF IT IS
PROCEDURAL BARRED, JUST LIKE ANY
OF THE OTHER TESTING ISSUES, THE
NON- DNA TESTING IS WHAT I
CALLED IT THAT IS BARRED AND
COULD HAVE BEEN DONE A LONG,
LONG, LONG TIME AGO.
AND IT WASN'T.
I DON'T KNOW WHY AND IT DOESN'T
MATTER, BECAUSE THAT IS A
PROCEDURAL BAR.
AS FAR AS THE DNA TESTING, THERE
IS NO TIME LIMIT ON IT.
BUT, THAT RULE AND THAT -- THE
STATUTE UNDERPINNING THE RULE,
WERE NEVER INTENDED TO BE A ONE
FREE STAY OF EXECUTION RULE.
I WOULD SUGGEST TO THE COURT
THAT THE TIMING OF ALL OF THAT
IS HIGHLY, HIGHLY SUSPECT.
AND I DON'T MEAN THAT IN A
DISPARAGING FASHION.
>> SPEAKING OF TIMING, HOW DO
YOU SEE THE TIMELINE FROM THE
ENACTMENT OF THE STATUTE AND THE
RULE AND HOW IT CORRESPONDS WITH
WHEN COUNSEL WAS APPOINTED AND
REPRESENTING THE GENTLEMAN, AND
WHEN THEY HAD WITHDRAWN OR FILED
MOTIONS TO WITHDRAW?
WHAT IS THE TIMELINE AND WHAT
WOULD THAT SHOW US.
>> WE ARE NOT THAT LATE, JUSTICE
LEWIS, WE ARE IN THE EARLY '90s
WHEN IT COULD HAVE BEEN DONE.
>> THE RULE WAS NOT IN THE EARLY
'90s, I'M ASKING ABOUT THE RULE,
IF YOU ADDRESS THAT, THE STATUTE
THERAPY RULE.
>> HE HAD THE OPPORTUNITY
POST-RULE TO MAKE THE MOTION HAD
HE CHOSEN TO DO SO AND WE --
>> I AGREE AND AGAIN, WOULD YOU
DEGREES WHEN HE HAD A LAWYER AND
WHEN HE DIDN'T?
>> HELP ME OUT OF WHEN THE RULE
TOOK EFFECT, JUSTICE LEWIS AND
I'LL HAVE TO...
>> THE RULE TOOK EFFECT,
PROBABLY, IN THE -- AROUND 2002,
I GUESS.
2, 4...
>> AMENDED IN 2006 AND 2007 TO
REMOVE THE TIME LIMITATIONS.
>> HE HAD A LAWYER, IN THE STATE
-- I'M SORRY.
THE FEDERAL HABEAS PROCEEDING
WHICH WAS LATE '90s AND WAS
REPRESENTED, STILL, BY THAT
ATTORNEY, I BELIEVE, UP UNTIL --
I AM HAVING TROUBLE REMEMBERING
ALL OF THE DATES.
I KNOW MR. MILLS CAME INTO IT,
AROUND 2003, OR 2004.
AND I KNOW THAT IS WHEN
MR. MILLS CAME IN, RIGHT WHEN
THE CASE WAS SENT BACK FOR...
>> MENTAL RETARDATION.
>> LET ME SEE IF I HAVE ANOTHER
TIMELINE TO HELP ME OUT HERE.
>> ISN'T IT THE CASE, THAT WE
HAVE TO LOOK AT THIS, AND
EVALUATE THIS, JUST LIKE WE
WOULD EVALUATE IT, IF HE HAD
RAISED IT, FIVE YEARS AGO.
OR SIX YEARS AGO.
OR, RIGHT AFTER THE RULE WAS
ADOPTED.
BECAUSE, IN ITS CURRENT
INCARNATION, THIS RULE HAS NO
TIME LIMIT.
THERE IS NO BAR IN THE RULES TO
BRINGING THIS UP AT THE 11th
HOUR.
>> THAT'S TRUE, IT'S NOT AND LET
ME -- FOUND THE TIMELINE AND GOT
MY CHEAT SHEET HERE.
HE WAS IN THE COURT IN 2000 ON A
PETITION FOR WRIT OF HABEAS
CORPUS, IN STATE CIRCUIT COURT
IN 2002, ON A 3.851 MOTION, AND
CAME OUT OF THIS COURT MAY THE
4TH OF 2006 WITH AN AFFIRMANCE,
AND YES.
HE HAD COUNSEL THAT WAS ACTIVELY
LITIGATING THAT CASE AND JUSTICE
LEWIS I APOLOGIZE FOR BEING SO
LOW TO GET TO THAT ANSWER FOR
YOU, TOO MANY DATES.
>> ONE LAST QUESTION.
IT SEEMS TO ME IN READING THIS
RECORD, THAT THE... STRUGGLE,
SEEMS TO ME SHE PROBABLY
SCRATCHED HIS FACE AND SEEMS TO
ME THE DNA... PROBABLY IS
UNDERNEATH HER NAIL.
THE NAIL CLIPPINGS, THAT ARE NOW
AT THE ORLANDO POLICE
DEPARTMENT.
WHY NOT JUST TEST IT AND WE'LL
BE SURE?
>> BECAUSE I DON'T MEAN, I DON'T
-- I MEAN NO DISRESPECT.
I REALLY DON'T...
>> [INAUDIBLE].
>> [LAUGHTER].
>> IT IS TOO EARLY FOR THAT,
STILL, BUT THE STANDARD IS NOT
WHAT DOES IT HURT.
THE STANDARD IS, IS THERE A
REASONABLE PROBABILITY OF A
DIFFERENT RESULT?
AND, UNDER THESE FACTS, WITH
THIS EVIDENCE, UNDER THE LEGAL
STANDARD --
>> YOU DON'T THINK A JURY OF 12
PEOPLE, IF THEY HEARD THAT THE
DNA, YOU KNOW, THE BLOOD
UNDERNEATH THE VICTIM'S NAILS,
BELONGED TO SOMEONE ELSE, THAT
THAT WOULD NOT RAISE THE ISSUE
WITH THEM.
>> NO, NOT AGAINST THE REST OF
THE FACTS.
NOT AGAINST THE REST OF THE
FACTS AND NOT AGAINST
MR. JOHNSTON'S PREEMPTIVE FAILED
EXPLANATION FOR THOSE FACTS,
WHICH COULD BE TURNED AROUND AND
ARGUED AS... GUILT YOU HAVE
SUBSTANTIAL OTHER EVIDENCE
WITHOUT THE SCRATCHES ON HIS
FACE, AND HE'S THIS ONE THAT
KILLED THE POOR LADY.
I WOULD SUGGEST THE LOWER COURT
SHOULD BE AFFIRMED IN ALL
RESPECTS, AND ANY STAY OF
EXECUTION SHOULD BE DENIED.
IT IS TIME FOR THE SENTENCE TO
BE CARRIED OUT.
>> THANK YOU, MR. NUNNELLEY,
MR. DOSS.
>> I'D LIKE TO FIRST TAKE ISSUE
WITH THE STATEMENT THAT THE
FINGERNAIL SCRAPINGS, WHETHER OR
NOT THERE IS ANYBODY ELSE'S
FLESH OR BLOOD IS ON THAT, FLIES
IN THE FACE OF THE OTHER
EVIDENCE, YOU CAN LOOK BACK TO
THE CLOSING ARGUMENT, THE
PROSECUTOR ARGUING THERE IS NO
EVIDENCE THAT ANYBODY ELSE WAS
IN THE APARTMENT DAVID
EUGENE JOHNSTON AND I WOULD ASK
YOU TO RETURN A VERDICT THAT
SPEAKS THE TRUTH BECAUSE THAT IS
WHAT A TRIAL IS, THAT IS 989.
AS WELL, THE PROSECUTOR ARGUED,
THAT HAPPENED DURING A VIOLENT
STRUGGLE.
THAT HAPPENED WHEN MARY HAMMOND
WAS FIGHTING FOR HER LIFE, WHEN
MARY HAMMOND WAS FIGHTING FOR
HER LIFE, THAT HAPPENED WHEN
MARY HAMMOND WAS SCRATCHING AND
CLAWING AT DAVID EUGENE JOHNSTON
WHEN SHE SCRATCHED HIS FACE AND
NEXT AND RIPPED THE CHAIN FROM
HIS NECK AND THEN IT LODGED IN
HER HAIR AND IT FLIES IN THE
FACE OF WHAT IS ARGUED HERE
TODAY.
THAT IT DOESN'T MATTER.
IT ABSOLUTELY MATTERS AND EACH
ONE -- EACH ONE OF THE ITEMS OF
EVIDENCE THAT HAS BEEN SUGGESTED
TO YOU THAT CONTINUED DISTRICTS
WHETHER OR NOT SOMEONE ELSE WAS
THERE, I DON'T SEE THE RELEVANCE
OF IT.
IT PALES IN COMPARISON TO THE
DNA OF SOMEONE ELSE, THE PUPPY,
AS WAS ARGUED IS SOMETHING THAT
WAS CONVENIENTLY CONJURED UP AND
MR. MARTIN SAID MR. JOHNSTON HAD
A PUPPY AND THERE IS AN ISSUE AS
TO WHETHER OR NOT IT WOULD
SCRATCH AND I URGE THE COURT TO
TAKE A LOOK.
I HAVE DETAILED IN FOOTNOTE 3,
REGARDING THE BUTTERFLY
NECKLACE, THAT, YES, PATRICIA
MANN INITIALLY STATED SHE HAD
SEEN HIM WEARING THE NECKLACE AT
572 AND LATER ADMITTED WHAT SHE
ACTUALLY SAW WAS THE
HEART-SHAPED PENDANT ON 577.
WHICH WAS ALSO CONFIRMED BY
MARTIN AT 713, A HEART-SHAPED
PEN DAN AND THERE IS ABSOLUTELY
DOUBT, MUCH MORE THAN WHAT THE
STATE WOULD LIKE TO ADMIT.
AS TO THE COURT QUESTIONS
REGARDING TIMING, ONCE THE
MENTAL RETARDATION CLAIM WAS
DENIED BY THE COURT IN 2006 AND
MAY, 2006, MR. MILLS, THEN MOVED
TO WITHDRAW.
HE WITHDREW AND MR. SOLIS WAS
APPOINTED.
AND MR. SOLIS NEVER TOOK TO IT
FEDERAL COURT AND NEVER
PROCEEDED ANYWHERE ELSE AND
ASKED TO WITHDRAW.
>> [INAUDIBLE].
>> I'M -- I COULDN'T --
>> DO YOU KNOW WHY WE ASKED TO
WITHDRAW.
>> HE SAYS THERE WERE NO OTHER
ISSUES, WHICH, WHICH MEANT HE
DIDN'T TAKE IT INTO FEDERAL
HABEAS COURT AND DIDN'T TAKE IT
ANYWHERE AND THAT LANGUAGE, FOR
A WHILE, HE WAS ALLOWED TO
WITHDRAW.
CCRC MENTAL WAS APPOINTED TO THE
CASE.
THEY MADE THEIR MOTION, IT
LANGUISHED.
UNTIL THE DEBT WARRANTED WAS
SIGNED AND JUDGE WADDLES
APPOINTED ME AND MR. JOHNSTON
HAS EFFECTIVELY BEEN WITHOUT
COUNSEL IN MY ESTIMATION SINCE
MAY OF 2006 WHICH IS A PERIOD OF
THREE YEARS, WHICH IS TIME
PERIOD WITHIN WHICH THE TIME BAR
WAS LIFTED, ON OUR RULE OF
CRIMINAL PROCEDURE 3.853 AND MY
RECOLLECTION OF THE AMENDMENT,
LIFTING THE TIME BAR IS 2006 AS
THE JUSTICE SUGGESTED AND WHEN
WE LOOK AT THAT AND WE CONSIDER
THIS CASE, THAT IT CRIES OUT FOR
THE DNA TESTING, AND THIS COURT
REVERSE AND SEND BACK TO THE
TRIAL COURT SO THE TESTING CAN
BE CONDUCTED.
APPRECIATE YOUR TIME.
>> THANK YOU, MR. DOS S AND
THANK YOU MORE NUNNELLEY, AND
THE COURT WILL TAKE ITS MORNING
RECESS FOR FIVE MINUTES.
>> PLEASE RISE.
The following is a real-time transcript taken as closed captioning during the oral argument proceedings, and as such, may contain errors. This service is provided solely for the purpose of assisting those with disabilities and should be used for no other purpose. These are not legal documents, and may not be used as legal authority. This transcript is not an official document of the Florida Supreme Court.
David Eugene Johnston v. State of Florida
SC65525 SC09-839
>> THE NEXT CASE ON THIS COURT
DOCKET IS
JOHNSTON VERSUS STATE.
>> GOOD MORNING, MAY IT
PLEASE THE COURT AND
COUNSEL, TODD DALTON ON
BEHALF OF DAVID JOHNSTON, I
BEGIN MY ARGUMENT BY
FOCUSING ON THE DENIAL OF
DNA TESTING THAT WAS
SUBMITTED IN THE CIRCUIT
COURT
THE JUDGE WADDLES HAD
ORDERED AND FOUND THAT THE
EVIDENCE THAT WE HAD
REQUESTED TO BE TESTED WOULD
NOT RESULT IN AN EXONERATION
OF MR. JOHNSTON
>> WAS THERE EVER A
DETERMINATION SPECIFICALLY
AS TO THE FINGERNAIL
SCRAPINGS, WHETHER THERE WAS
-- WHETHER THE EVIDENCE
STILL EXISTED AND WHETHER
THERE WAS SUFFICIENT AMOUNT
TO ALLOW FOR DNA TESTING?
>> JUDGE WADDLES DID NOT --
WADDLES DID NOT MAKE THAT
SPECIFIC FINDING
I HAD COMMUNICATED TO JUDGE
WADDLES I HAD BEEN TO THE
ORLANDO POLICE DEPARTMENT AT
THE HEARING, AND THERE WERE
IN FACT FINGERNAIL CLIPPINGS
THERE
AND I HAVE WENT THROUGH THE
EVIDENCE WITH THE ORLANDO
POLICE DEPARTMENT
REPRESENTATIVES TO DETERMINE
WHETHER OR NOT THIS EVIDENCE
WAS IN FACT THERE
>> THAT EVIDENCE HAS NEVER
BEEN TESTED?
BY ANYBODY?
>> THERE'S NO INDICATION
WHATSOEVER THAT IT'S BEEN
TESTED
AND THE FORENSICS SEROLOGIST
TESTIFIED THAT THERE WAS
BLOOD ON THERE, NOT ENOUGH
FOR SEROLOGY TESTING, DNA,
THERE WASN'T ENOUGH FOR
TESTING, WE'RE TALKING ABOUT
1983, 1984 AND THE
INDICATIONS WAS THERE WAS
FLESH UNDERNEATH THOSE
FINGERNAILS
>> THIS CASE IS OVER 25
YEARS OLD, CORRECT?
>>
>> AND THIS EVIDENCE HAS
BEEN AROUND SINCE THAT TIME?
THAT'S WHAT IS TROUBLING TO
ME, IS WE'VE HAD MULTIPLE
CASES INVOLVING THIS
DEFENDANT, OF COURSE, WE'VE
HAD POST CONVICTION, WE'VE
HAD HABEAS, KEYS GONE TO
FEDERAL COURT, AND YET NO
ONE EVER ASKED TO HAVE
THIS EVIDENCE TESTED BEFORE
WE HEAR, YOU KNOW, 25 YEARS
LATER ON THE EVE OF
EXECUTION AND WE FINALLY GET
A MOTION TO TEST THIS
EVIDENCE, AND YOU KNOW, IT
SEEMS TO ME THAT AS SOON AS
ANY DEFENDANT HAS, IT CAN
WAIT UNTIL THE LAST MOMENT
BEFORE AN EXECUTION IS
SUPPOSED TO TAKE PLACE AND
ASK TO HAVE THIS KIND OF
EVIDENCE TESTED
>> I CAN'T SPEAK TO ANY OF
THE PRIOR COUNSEL
I WAS APPOINTED ON
APRIL 24TH, ONCE THE WARRANT
HAD BEEN SIGNED AND I FILED
IT 12 DAYS LATER AFTER
REVIEWING THE RECORD
>> BUT YOU UNDERSTAND -- WE
UNDERSTAND YOU'RE GOING TO
DO EVERYTHING YOU CAN TO
POSTPONE THE EXECUTION, BUT
GOING BACK, AND I UNDERSTAND
THAT THERE'S NOT A SPECIFIC
TIME BAR FOR THE DNA MOTION,
BUT IN THIS CASE, AND
LOOKING BACK ON ALL THE
PRIOR POST-CONVICTION
PROCEEDINGS, ACTUAL
INNOCENCE DOES NOT LOOK LIKE
THERE WAS EVER THE THRUST OF
THIS PARTICULAR CASE
AND I CAN CERTAINLY
UNDERSTAND WHY, BECAUSE HOW
DO YOU GET AROUND THE
FOOTPRINT OF THE KITCHEN
WINDOW, THE SCRATCH MARKS ON
HIS FACE, AS LATE AS 2:00
A.M., HE DIDN'T HAVE IT, THE
BLOOD-COVERED WATCH FOUND ON
THE BATHROOM COUNTERTOP, THE
BUTTERFLY PENDANT THAT WAS
THE DEFENDANT'S ENTANGLED IN
THE VICTIM'S HAIR, HIS
ADMITTED POSSESSION OF ITEMS
FROM HER HOME, SILVER AWARE,
CANDLE -- SILVERWARE,
CANDLESTICKS, TEA POUT AND
CREATING THESE BOGUS
CONFESSIONS FROM ANOTHER
PERSON THAT HE FABRICATED
I MEAN, THIS SEEMS TO BE A
CASE OF OVERWHELMING GUILT
NOW
I MEAN, WHETHER THIS IS A
MENTALLY ILL DEFENDANT THAT
SOME TIME BACK THAT SHOULD
HAVE BEEN DEVELOPED FURTHER,
AS FAR AS WHAT IS GOING
THROUGH HIS MIND AT THE TIME
OF THE CRIME, THAT'S ANOTHER
STORY
BUT IT DOESN'T SEEM TO ME,
IN TERMS OF THE ACTUAL
INNOCENCE, THAT THERE WAS
ANYTHING THAT THE DEFENSE
LAWYER THOUGHT HE OR SHE
SHOULD BE PURSUING GIVEN ALL
OF THIS OTHER OVERWHELMING
EVIDENCE
>> WELL, WE ARE TALKING
ABOUT A PROFOUNDLY MENTALLY
ILL INDIVIDUAL THAT'S BEEN
THE SUBJECT OF MANY
COMPETENCY HEARINGS WITH
VOLUMINOUS MEDICAL RECORDS
SHOWING HE HAD BEEN FOUND
INCOMPETENT IN KANSAS AND
HAD MANY PSYCHIATRIC
>> AND I'M PUTTING ASIDE
WHETHER THIS IS A MENTALLY
ILL DEFENDANT
I KNOW THAT'S NONE OF YOUR
POINT
BUT AS FAR AS THE ACTUAL
INNOCENCE OR THIS
PROBABILITY OF AN ACQUITTAL
OR THE THRESHOLD FOR THE
3.853, A REASONABLE
PROBABILITY OF AN ACQUITTAL,
NOTHING HAS EVER -- THERE'S
NOTHING THAT TAKES AWAY FROM
ALL OF THOSE ITEMS THAT I'VE
JUST MENTIONED THAT JUST
POINT TO THAT THIS DEFENDANT
KILLED THIS ELDERLY VICTIM
>> I THINK IT DOES, AND
WHERE I WAS GOING WITH THE
FACT OF BEING MENTALLY ILL,
I THINK WE CAN DISCOUNT MUCH
OF WHAT MR. JOHNSON HAS SAID
BECAUSE IT IS THE RAMBLING
OF A MENTALLY ILL MAN
WHEN YOU LOOK AT THE
PENDANT, THE TESTIMONY
REGARDING THE PENDANT, WE
HAD ACTUALLY CITED IN OUR
REPLY BRIEF AS TO THERE WAS
CONFLICTING TESTIMONY ON
THAT WHERE THE GIRLFRIEND
INITIALLY IDENTIFIES IT AS
THE BUTTERFLY PENDANT, BUT
LATER ON, SHE SAYS THAT NO,
HE HAD A HEART-SHAPED
PENDANT ON AND DARREN
MARTIN, THAT WAS THE ROOMMATE
OF MR. JOHNSON, ALSO
TESTIFIED HE HAD A
HEART-SHAPED PENDANT
SO I DON'T THINK THAT THAT'S
AS CONCLUSIVE AS WHAT THE
CIRCUIT COURT HAD MADE IT
OUT TO BE
WE'VE ALSO ASKED TO BE ABLE
TO TEST THE FOOTPRINT
EVIDENCE THAT'S OUT THERE
THAT HAS NEVER BEEN TESTED
THAT BASICALLY WAS JUST SAID
WELL IT APPEARS TO BE THE
TREADWARE WHICH TIES
IN WITH OUR FORENSIC TESTING
MOTION AND THE NATIONAL
ACADEMY OF SCIENCE REPORT
THAT HAS SAID WE NEED
STRICTER STANDARDS, WE NEED
TO HAVE MORE RELIABILITY IN
THIS TESTING
WHEN YOU LOOK AT THE
ARGUMENT I HAD CITED FROM
THE STATE, THEY'VE NEVER
INDICATED THAT THERE WAS
ANYONE ELSE THAT WAS
INVOLVED OTHER THAN
MR. JOHNSTON AND THAT HE WAS
THE ONLY ONE IN THAT HOUSE
MR. JOHNSTON, GRANTED,
THERE'S MUCH INCONSISTENCY
IN WHAT HE SAID, WE CAN
GLEAN THAT HIS STORY IS HE
COMES IN THE HOUSE, WHOEVER
THE ATTACKER AND KILLER WAS
HAD ALREADY PERPETRATED THE
CRIME AND LEFT, SO WE HAVE
--
>> LET ME ASK YOU THIS:
WHAT ABOUT THE BLOOD ON THE
DEFENDANT'S PERSON?
HE'S GOT A SUBSTANTIAL
AMOUNT OF BLOOD ON HIM,
RIGHT?
>> THAT IS CORRECT
>> NOW, IN ALL THESE
DIFFERENT STORIES, HE'S TOLD
-- THAT HE'S TOLD, DID HE
EVER GIVE ANY INDICATION
THAT HE HAD CONTACT WITH
THIS THIRD PARTY
PERPETRATOR?
>> NOT TO MY RECOLLECTION
>> WHAT HE SAID IS HE SAW
SOMEBODY
HE NEVER INDICATED THEY HAD
SOME KIND OF COLLISION THAT
WOULD HAVE RESULTED IN THE
TRANSFER OF BLOOD FROM THIS
THIRD PARTY TO HIM, AND SO
THE BLOOD, WE CAN GLEAN FROM
THAT, WOULD BE TOTALLY --
TOTALLY INCONSISTENT
IF YOU'RE LOOKING FOR SOME
EVIDENCE THERE, IT WAS -- IT
WOULD BE TOTALLY
INCONSISTENT WITH ANYTHING
THE DEFENDANT EVER SAID,
RIGHT?
>> I DON'T THINK SO
HE HAD TESTIFIED THAT HE
COMES IN AT ONE POINT -- OR
THAT HE MAKES A STATEMENT,
HE NEVER TESTIFIED, BUT HE
MAKES A STATEMENT THAT HE
COMES IN THE ROOM AND
APPROACHES TO WHERE THE
VICTIM IS AND LEANS DOWN AND
GRABS A HOLD OF HER ON THE
BED
WE DON'T KNOW IF THERE'S ANY
MIX OF THIS OTHER
PERPETRATOR WITH HIS BLOOD
OUT SOMEWHERE THERE BECAUSE
THE INDICATION FROM HER
FINGERNAILS IS SHE STRUGGLED
WITH WHOEVER THE ATTACKER
WAS, THUS THE BLOOD AND THE
FLESH ON THERE, AND I THINK
OUT OF ALL THE THINGS WE'VE
REQUESTED TESTING THAT
THAT'S THE MOST DEFINITIVE,
BECAUSE WHEN YOU LOOK AT THE
CLOSING ARGUMENT, THE
CLOSING ARGUMENT THAT THE
PROSECUTOR AT THE TIME MAKES
IS THIS VICTIM IS SCRATCHING
AND CLAWING FOR HER LIFE ON
HER BED AND THAT'S WHERE THE
SCRATCH ON MR. JOHNSTON'S
FACE HAD COME FROM, AS
OPPOSED TO HIS STORY THAT HE
HAD IN FACT PURCHASED A
PUPPY THAT DAY AND WHEN HE
WAS MAKING WITH THE PUPPY
THAT IT HAD SCRATCHED HIM
THERE IS EVIDENCE TO
CORROBORATE THE FACT THAT HE
DID BUY A PUPPY THAT DAY,
THERE IS OTHER TESTIMONY TO
SAY THAT WELL, I DIDN'T SEE
A SCRATCH ON HIM WHENEVER HE
LEFT AT 12:00 WITH THE TIME
AND DEATH BEING SOMEWHERE
BETWEEN 3:00 AND 4:00, BEST
WE CAN TELL
THE EVIDENCE OF THOSE
FINGERNAILS, THOUGH, I
THINK, IS CRITICAL HERE
IT WASN'T AVAILABLE BACK IN
1983-'84, WE HAD THE SIMPLE
SEROLOGY TESTING THAT WAS
NOT NEAR AS ACCURATE AS WE
HAVE NOW, PARTICULARLY THE
MITOCHONDRIAL TESTING OR THE
REPEAT TESTING WE CAN NOW DO
THE FURTHER CERTAIN AND I
CITE THUNDERSTORM IN MY
BRIEF IS THE CASE THAT'S
CURRENTLY PENDING BEFORE THE
U.S. SUPREME COURT,
OSBOURNE, WHERE IT DEALS
WITH ACCESS TO DNA EVIDENCE
AND WHETHER OR NOT DENYING
ACCESS TO THE DNA EVIDENCE
IS A DUE PROCESS VIOLATION
IN AND OF ITSELF, AND I
THINK THAT MR. JOHNSTON HAS
A RIGHT HERE AS TO ACCESSING
THIS EVIDENCE AND HAVING IT
TESTED, AND THAT WHEN WE
LOOK AT IT IN THE SCHEME OF
THINGS, THAT THE TESTING
WON'T TAKE THAT LONG
IT'S EITHER GOING TO BE
SHOWING THAT SOMEONE ELSE'S
DNA IS THERE OR IT'S GOING
TO BE SHOWING THAT HIS DNA
IS THERE, OR POSSIBLY
INCONCLUSIVE
AT THAT POINT, IT'S MUCH
MORE DEFINITIVE AS FAR AS
GOING FORWARD WITH THE
EXECUTION OF MR. JOHNSTON
HE'S COMPLIED WITH EVERY
ASPECT OF 3.853, WITH NO
TIME LIMITATION BEING THERE
I UNDERSTAND THIS COURT'S
CONCERN, BUT THERE'S NO TIME
LIMITATION THERE, AND
MR. JOHNSTON HAS LAID OUT
EACH AND EVERY ASPECT OF
3.853, THE ONLY THING THAT
JUDGE WADDLES
IS HUNG ON IS THIS
EVIDENCE THAT WOULD
EXONERATE HIM OR NOT
NOW, WHEN I DISCUSSED THE
FIRST BORN CASE, I USE THAT AS
A PREDICATE TO ESTABLISH
THAT WE'RE ALSO ENTITLED TO
THIS FORENSIC EVIDENCE
THAT'S THERE, SUCH AS THE
FOOTPRINT
I HAVE REPRESENTED TO JUDGE
WADDLES THERE IN THE TRIAL
COURT THAT I'VE PERSONALLY
SEEN THE CASTS, THE CASTS
ARE STILL THERE, THE
FOOTPRINT EVIDENCE IS STILL
THERE SO THAT WE CAN HAVE
SOMEONE DO A MORE RIGOROUS
EXAMINATION THAN WHAT WAS
REVEALED IN THE TRIAL
TRANSCRIPT, WHICH BASICALLY
THEY JUST SAID IT APPEARED
TO BE SO
THEY DIDN'T REALLY GO
THROUGH A WHOLE LIST OF
QUALIFICATIONS
>> NOW, ON SOMETHING THAT'S
NOT BEING DNA TESTED, AND
YOU'VE SAID THE FOOTPRINT
HAS -- THE CAST HAS BEEN
THERE, YOU DON'T HAVE A
FREESTANDING RIGHT JUST TO
HAVE ANYTHING TESTED
I MEAN, THE GOVERNOR CAN SAY
YES, I CAN GET IT TESTED BUT
IT CAN'T -- IF IT CAN'T BE
DNA TESTS, WHERE IS THE
AUTHORITY THIS COURT HAS IN
-- LET'S SAY LET'S ORDER
TESTING OF ALL OTHER ITEMS?
>> I HAD CITED TO THE
OSBOURNE CASE WHERE THE
ARGUMENT WAS MADE --
>> THE U.S. SUPREME COURT
>> IT'S BEFORE THE U.S.
SUPREME COURT, HOWEVER, THE
UNITED STATES NINTH CIRCUIT
OF APPEALS HAD INDICATED IT
DIDN'T LIMIT THEIR RULING TO
DNA EVIDENCE
IT SAID BIOLOGICAL EVIDENCE
I THINK THAT THAT'S MORE --
>> BUT YOU WOULD AGREE THE
STATUTE WHICH DOESN'T HAVE A
TIME LIMIT IS LIMITED TO DNA
EVIDENCE?
>> ABSOLUTELY 3.853 IS
LIMITED TO DNA EVIDENCE, AND
THAT'S WHY JUDGE PARIENTE,
BROUGHT IT IN TWO MOTIONS,
BECAUSE I UNDERSTAND WE'RE
TALKING ABOUT TWO SEPARATE
MECHANISMS, TWO SEPARATE --
>> WAS THE FOOTPRINT EVER
CHALLENGED?
I KNOW THAT THERE HAVE BEEN
CASE THAT IS TALK ABOUT A
LOT OF THE SCIENCE THAT IS
USED
THE FOOTPRINT ANALYSIS HAS
COME UNDER FIRE AS ONE OF
THE AREAS THAT REALLY ISN'T
AS ACCURATE AS WE MIGHT HAVE
FIRST THOUGHT, BECAUSE AS
JUDGE QUINCE SAID, THERE
HAVE BEEN CONVICTION PHASE A
COUPLE OF DECADES AND I
DON'T RECALL THERE BEING A
CHALLENGE, REFRESH MY
RECOLLECTION, TO THE
FOOTPRINT EVIDENCE
>> I DON'T RECALL THAT THAT
HAD EVER BEEN CHALLENGED
HAD IT BEEN CHALLENGED, I
WOULD HAVE PRESENTED IT TO
THE COURT WHATEVER THE
RESULTS WITH WERE AND I
CAN'T ANSWER THE QUESTION AS
TO WHY IT HASN'T BEEN
>> I THINK POST-CONVICTION,
IT WASN'T ARGUED THAT NOW WE
HAVE A FOOTPRINT EXPERT THAT
CAN SHOW THIS MIGHT NOT BE
OR WASN'T MR. JOHNSTON'S
FOOTPRINT
>> I HAVE NO INDICATION --
>> I MEAN, I UNDERSTAND, YOU
CAME IN APRIL, AND YOU ARE
CERTAINLY, HAVE DONE A YEOMAN'S
JOB ON MR. JOHNSON'S HALF BUT
THROWING ALL OF THIS OUT AFTER
25 YEARS, IS -- YOU KNOW, IS
JUST -- TURNS THE PROCESS ON ITS
HEAD.
AND THE TIME LIMITS THAT ARE
IMPORTANT FOR, YOU KNOW, IN THE
SCHEME OF THE WAY DEATH CASES GO
AND I THINK -- I DON'T THINK ANY
AUTHORITY, FOR TO YOU ORDER
ANYTHING OTHER THAN THAT -- THE
DNA TESTING ASSUMING, THERE IS A
THRESHOLD ON THAT.
>> I THINK THERE IS A DUE
PROCESS RIGHT AND THAT IS WHY I
SPECIFICALLY LINKED IT TO
OSBORNE AND ALSO, IT DOVETAILS
INTO THE NEWLY DISCOVER CLAIM
REGARDING THE NATIONAL ACADEMY
OF SCIENCES REPORT THAT CAME OUT
AND CALLS INTO QUESTION, MUCH OF
WHAT HAS BEEN DONE, IN THESE
OTHER FORENSIC SCIENCE AREAS, AS
ILLUMINATED BY DNA TESTING --
>> HAVEN'T WE REALLY CROSSED THE
BRIDGE WITH REGARD TO STUDIES
AND THOSE KINDS OF THINGS WITH
REGARD TO WHETHER THESE THINGS
ARE REALLY NEWLY DISCOVERED
EVIDENCE.
AS OPPOSED TO FACTUAL MATTERS
DEALING WITH THE CASE, HAVEN'T
WE ALREADY CROSSED THAT...
>> MY UNDERSTANDING OF THE
COURT'S CASE LAW REGARDING THAT
IS THAT IT NEEDS TO BE TIED
SPECIFICALLY TO A PARTICULAR
CASE, AND I AM AWARE OF RUTH
FORD AND THAT -- THE WHOLE LINE
OF CASE THAT'S DEALT WITH THE
ABC REPORT WHICH I SUBMITTED A
MUCH MORE GENERAL REPORT THAN
WHAT WE HAD WITH THE NATIONAL
ACADEMY OF SCIENCES AND IS MORE
IN LINE WITH WHAT I CITED, WHERE
THE COURT RELINQUISHED
JURISDICTION SO TREPAL COULD
HAVE AN EVIDENTIARY HEARING AND
THE ABILITY TO LINK THE FBI
REPORT REGARDING FRAUD IN THAT
LAB TO HIS CASE, THE COURT NEVER
INDICATED THIS WASN'T
NECESSARILY NEWLY DISCOVERED
EVIDENCE, IN AT THE TREPAL CASE
AND IT SAID IT WASN'T
ESTABLISHED THAT IT ROSE TO THE
LEVEL OF WARNING RELIEF FOR
TREPAL I DIDN'T TAKE THAT AS A
CATEGORICAL EXEMPTION AND I
SPECIFICALLY -- DIDN'T LINK IT
SPECIFICALLY TO THE CASE AND THE
SPECIFIC PIECES OF EVIDENCE THAT
WERE ADMITTED INTO
MR. JOHNSTON'S CASE SO THAT THIS
COURT COULD SEE, THE VALUE OF
THAT.
AND I THINK, TOO, WHEN WE ARE
TALKING ABOUT THAT KIND OF
EVIDENCE AND TALKING ABOUT
EXONERATION THERE WERE 14 PRINTS
THAT WERE LIFTED WITHIN THE
VICTIM'S HOME.
FOR YOU WERE USABLE.
AND WERE ACTUALLY COMPARED TO
MR. JOHNSTON TO THE VICTIM AND
TO KEVIN WILLIAMS, THE SUBJECT
OF ALERT SUPPOSEDLY WRITTEN BY
HIM AND LATER DEBUNKED AND IT
DIDN'T MATCH THAT AND WHEN WE
COME AND ASK ABOUT EXONERATION
AND THE POSSIBILITY THAT THERE
IS SOMEONE ELSE'S FLESH AND
SOMEONE ELSE'S BLOOD UNDER
THERE, AT A REASONABLE
PROBABILITY THERE IS SOMETHING
ELSE THERE AND IT IS HEIGHTENED
BY MR. JOHNSTON'S MENTAL ILLNESS
THAT HE IS -- RAMBLING OF A
PROFOUNDLY MENTALLY ILL MAN AND
I THINK IT IS BEYOND DISPUTE
HE'S MENTALLY ILL AND HEIGHTNESS
THE NEED TO CORROBORATE WHAT
HE'S SAYING AND SIT IN CONTRAST
TO WHAT THE PROSECUTOR ARGUED IN
CLOSING ARGUMENT I CITED IN MY
BRIEF.
>> YOU ARE WELL INTO YOUR
REBUTTAL IF YOU WANT TO SAVE
SOME TIME.
>> THANK YOU VERY MUCH.
>> MR. NUNNELLEY.
>> I REPRESENT THE STATE OF
FLORIDA.
LET ME START --
>> COULD YOU START IN THE PART?
HOW LONG DID MR. JOHNSTON
EFFECTIVELY NOT HAVE A LAWYER
BECAUSE THE PRIOR LAWYER OR THE
CTCC HAD MOVED FOR WITHDRAWAL,
WHAT IS THE TIMEFRAME?
>> IF I... I'M MATH CHALLENGED
THIS MORNING, JUSTICE PARIENTE.
MAYBE A YEAR.
I THINK --
NO, NO, I'M SORRY, NOVEMBER OF
LAST YEAR, I BELIEVE, IS WHEN
THE MOTION TO WITHDRAW WAS
FILED.
>> AND THEY -- WHAT WAS THE
BASIS FOR THEIR MOVING FOR
WITHDRAWAL.
>> THEY WERE TOO BUSY.
>> THIS IS THE CTRC MENTAL.
>> YES MA'AM THE BASIS OF THEIR
MOTION TO WITHDRAW WAS THEY WERE
TOO BUSY TO DO THE CASE.
>> AND WHEN IT WAS SIGNED, THE
JUDGE HEARD IT AND DECIDED THEY
WEREN'T TOO BUSY AND APPOINTED
MR. DODD AS COUNSEL.
>> WELL, JUDGE WALLACE NEVER --
HE LET CCRC OUT ON THE POINT OF
MR. DOS AND DIDN'T MAKE FINDINGS
ON WHETHER THEY WERE TOO BUSY,
THEY WERE THERE AND SAID WE
CAN'T DO IT WEEKS HAVE THE FILES
BOX U. DOWNSTAIRS AND THE JUDGE
SAID, MR. DOSS YOU WOULDN'T TAKE
THE -- WANT TO TAKE THE CASE AND
TO HIS CREDIT, HE SAID, YES,
SIR, I AM.
>> BUT AT THE POINT THEY SAID
THEY WERE TOO BUSY WAS THERE
ANYTHING GOING ON IN MORE
JOHNSTON'S CASE?
>> NO.
>> HAVE THEY JUST...
>> [INAUDIBLE].
>> YOU GOT THE FREE BE I GUESS.
>> THAT'S OKAY.
>> I'M I MEAN, I'M CONCERNED
BECAUSE WARRANTS ARE GETTING
SIGNED AND THIS ENDED UP
HAPPENING, THIS IS -- IT IS
DETRIMENTAL TO THE
ADMINISTRATION OF JUSTICE IF YOU
HAVE A NEW LAWYER JUMPING IN
LESS THAN 30 DAYS BEFORE AN
EXECUTION AND NOW HAVING TO LOOK
AT THE WHO'LL THING AND NOW,
MAYBE CCR MENTAL SHOULD HAVE
BEEN LOOKING AT THE ISSUE, IT
SEEMS LIKE THE FINGER IS NOW...
[INAUDIBLE] CAN YOU HELP ME
ANYBODY MORE ON WHETHER THINGS
STARTED TO HAPPEN, IN
MR. JOHNSTON'S CASE AND CCRC
MENTAL SAYS WE ARE TOO BUSY OR
JUST FILED IT IN MR. JOHNSTON'S
CASE AND NO OTHER CASE?
WE CAN'T REPRESENT THE DEFENDANT
BECAUSE WE ARE TOO BUSY.
>> LET ME ANSWER THAT IN THE
WAY:
OKAY.
THE LAST PROCEEDING -- LAST RUN
THROUGH THIS COURT WAS THE
MENTAL RETARDATION PROCEEDING IN
2006.
WHEN MR. JOHNSTON WAS
REPRESENTED BY ED MILLS.
MR. MILLS HANDLED THAT --
>> AND WHO WAS HE.
>> HE WAS REGISTRY COUNSEL
APPOINTED BY JUDGE WALLACE WHO
REPRESENTS MR. JOHNSTON AS I
RECALL AND THIS IS A LOT OF
DUSTY FILES, JUSTICE PARIENTE
BUT BOTTOM LINE, MR. MILLS WAS
APPOINTED, TRIED THE MENTAL
RETARDATION HEARING, AND STAYED
IN THE CASE, FOR A PERIOD OF
TIME, AFTER THAT, I DON'T
HONESTLY REMEMBER IF HE SOUGHT
CERTIFICATE REVIEW OR NOT, I
DON'T KNOW, DOESN'T MATTER,
ULTIMATELY, MR. MILLS SAID --
APPARENTLY REACHED THE
CONCLUSION THERE IS NOTHING MORE
I CAN DO AND FILED THE MOTION TO
WITHDRAW WHICH WAS GRANTED.
>> BUT UNDER THE SYSTEM HE'S
SUPPOSED TO STAY IN UNTIL THE
EXECUTION.
ISN'T THAT -- I MEAN, WE NEED --
THESE THINGS, BECAUSE WE NEED TO
KNOW THERE HAS BEEN -- I THINK
THE ATTORNEY GENERAL'S OFFICE
NEEDS TO MAKE SURE THE
GOVERNOR'S OFFICE NEEDS TO KNOW
THE SYSTEM MAY START TO BE
BREAKING DOWN, BECAUSE EITHER
THERE ARE NOT EFFICIENT REGISTRY
COUNSEL FOR CCRC MENTAL OR STAFF
ARE TOO BUSY, WE CAN'T THEN --
IT PUTS THIS COURT IN A POSITION
OF INSTEAD OF MR. JOHNSTON
HAVING ONE PERSON REPRESENTING
HIM OVER THE LASTING, YOU KNOW,
DECADE, HE'S NOW HAVING SOMEBODY
COMING IN FOR THIS AND SOMEONE
COMING IN FOR THAT, AND MAYBE
THAT IS THE REASON WHY NOBODY
LOOKED AT THE WHOLE CASE TO SAY,
THERE IS AN ISSUE THAT NEEDS TO
BE EXPLORED.
>> AFTER MR. MILLS WAS ALLOWED
OUT, ANOTHER REGISTRY ATTORNEYS
WAS PROMPTLY APPOINTED, A
MR. SOLIS I BELIEVE IT IS.
SOLIS, I THINK.
AND HE APPOINTED TO THE CASE, BY
JUDGE WADDLES, AND SOME SEVERAL
MONTHS, 6, 8, 10 MONTHS, LATER,
HE FILES A MOTION TO WITHDRAW.
STATING THAT I HAVE REVIEWED THE
FILES AND RECORDS AND I SEE
NOTHING THAT I CAN RAISE.
>> MR. NUNNELLEY, HEARS MY
CONCERN, YOU HAVE A CASE, THE
DEFENDANT IS IN NO HURRY FOR...
[INAUDIBLE] THEY FILE A MOTION
TO WITHDRAW.
DISMISSED.
NO ONE IS SCHEDULED FOR THE
HEARING.
[INAUDIBLE] INTO THIS WOULD BE
THE CCR MOTION.
>> RIGHT.
MOTION TO WITHDRAW AND UNTIL
THAT IS RESOLVED, I THINK YOU
KNOW, YOUR OFFICE KNOWS, THE
CASE IS NOT GOING ANYWHERE.
WHY IS IT THAT YOUR OFFICE
[INAUDIBLE] WHY DID YOU NOT
SCHEDULE IT FOR A HEARING.
>> THERE WAS NO ACTION GOING ON
IN THE CASE.
CCRC HAD MOVED TO WITH DRAW, IT
WAS THEIR MOTION AND WOULD HAVE
BEEN THEIR BURDEN TO SEEK A
RULING ON THAT MOTION, AND UNTIL
THAT MOTION IS RULED ON THEY
REPRESENT THE MAN, THEY ARE
STATUTORILY CHARGED TO REPRESENT
HIM.
>> THEY FILED A MOTION, DIDN'T
SCHEDULE IT FOR A HEARING.
IT SITS THERE FOR A YEAR.
WHY DOESN'T YOUR OFFICE SCHEDULE
FOR A HEARING, AD AND LET'S
BRING IT TO A HEAD AND GET GOING
ON THIS.
OTHERWISE, IT HAPPENS WHEN THE
GOVERNOR SIGNS THE EXECUTION
WARRANT.
>> I CANNOT GIVE YOU AN ANSWER
FOR THAT.
PERHAPS WE SHOULD HAVE.
BUT, ON THE OTHER HAND, CCR AS
THE MOVING PARTY, IS THE ONE
THAT HAS THE BURDEN TO GET THE
CASE IN FRONT OF THE COURT.
IF THEY WERE -- IF THEY WANT TO
-- A RULING ON THEIR MOTION THEY
NEED TO ASK FOR IT.
>> YOU ARE SAYING, THERE WAS A
SECOND REGISTRY COUNSEL WHO THEN
MOVED TO WITHDRAW AND IS THAT
WHEN --
>> CCRC WAS APPOINTED AND IT WAS
SOMETIME AFTER THAT, NOT
IMMEDIATELY, SOMETIME LATER,
THAT THEY CAME IN, SAYING, WE
ARE TOO BUSY TO HANDLE THIS
CASE.
>> THE IMPLICATION THERE IS,
THERE ARE OTHER THINGS THAT ARE
AVAILABLE TO DO, WE ARE JUST TOO
BUSY TO DO IT, BECAUSE,
CERTAINLY, CAN'T BE TOO BUSY TO
DO NOTHING.
WHICH IS WHAT YOU ARE SAYING THE
OTHER REGISTRY COUNSEL --
>> THEY DID NOT SAY THAT THEY
WERE TOO BUSY TO DO NOTHING.
THEY SAID, WE CAN NOT -- CANNOT
TAKE THIS CASE INTO OUR OFFICE.
>> LET ME ASK YOU, AND MAYBE
THIS IS WHERE YOU ARE GOING.
I'M CONCERNED, I DON'T KNOW HOW
CONCERNED I AM, BUT I AM
CONCERNED THAT DNA TESTING WAS
NEVER DONE ON THESE FINGER NAIL
SCRAPINGS, WHICH COULD EITHER
CONCLUSIVELY SHOW MR. JOHNSTON
IS THE PERPETRATOR, OR, RAISE
GENUINE CONCERNS IF IT IS
POINTED TO ANOTHER PERSON, I
MEAN, DNA, WHY DIDN'T THE STATE
JUST SAY, YOU KNOW, OKAY.
WE'LL HAVE THIS -- THESE
FINGERNAIL DESCRIPTIONS, DNA
TESTED AND HOW COME THAT WAS
NEVER DONE?
I DON'T UNDERSTAND IT.
>> I'LL GIVE YOU TWO ANSWERS AND
I DON'T MEAN TO BE INTEMPERATE
WITH THE FIRST ONE --
INTEMPERATE WITH THE FIRST ONE,
JUSTICE, I REALLY DON'T BUT IT'S
NOT THE STATE'S BUSINESS TO
RETRY FINAL CASES AND THIS
SECOND REASON WHICH IS REALLY
THE FIRST REASON I SUPPOSE, IS
THIS IS NOT AND NEVER HAS BEEN A
LABORATORY EVIDENCE CASE.
THIS IS A CASE THAT IS BASED
UPON THE EVIDENCE THAT YOU
DISCUSSED WITH MR. DOSS THE
BUTTERFLY PENDANT FOUND IN THE
VICTIM'S HAIR AND THE BLOOD ON
THE DEFENDANT'S CLOTHING, THAT
HAS NEVER, EVER, EVER BEEN
DISPUTED AS TO WHOSE IT WAS,
UNTIL MAY OF THIS YEAR.
THE FOOTPRINT FOUND OUTSIDE THAT
HAS NEVER, EVER, EVER BEEN
DISPUTED IN 25 YEARS, UNTIL NOW
--
>> DID MR. JOHNSTON SAY AT SOME
POINT THAT HE PICKED THE VICTIM
UP.
>> YES, MA'AM --
>> FOUND HER AND SO, I MEAN,
THEORETICALLY THAT IS HOW SOME
BLOOD COULD HAVE GOTTEN ON HIS
PERSON.
>> THIS IS --
>> WAIT A MINUTE.
OKAY.
>> I'M SORRY.
>> THERE ARE OTHER EXPLANATIONS
FOR SOME OF THE EVIDENCE THAT --
EXPLANATIONS FOR SOME OF THE
EVIDENCE WE DO HAVE AGAINST HIM
AND THAT IS WHY IT IS OF CONCERN
THAT THESE OTHER PIECES OF
EVIDENCE WERE NEVER TESTED.
I AM TRULY CONCERNED THAT WE
DON'T HAVE A RULE THAN REQUIRES
YOU, IF THERE IS SOMETHING YOU
WANT TO HAVE TESTED, THAT YOU
ASK FOR THE IT BEFORE YOU KNOW,
THE GOVERNOR SIGNS A DEATH
WARRANT, BUT, BE THAT AS IT MAY
IT SEEMS TO ME THAT SOME OF THE
OTHER EVIDENCE AGAINST
MR. JOHNSTON, THERE ARE OTHER
EXPLANATIONS FOR.
THIS SEEMS TO BE REALLY
SOMETHING THAT COULD, YOU KNOW,
PUT THE NAIL ON IT, AS IT WERE,
BECAUSE IT'S EITHER HIS DNA
UNDER THE LADY'S FINGER NAILS OR
IT ISN'T.
>> LET ME ANSWER THAT BEST I
CAN, YOU MAY HAVE TO HELP ME OUT
WITH SOME OF THIS HERE, JUSTICE
QUINCE, I'M NOT SURE I WILL BE
ABLE TO REMEMBER ALL OF IT.
THE BOTTOM LINE IS THAT
MR. JOHNSTON HAS HAD THE
AVAILABILITY OF DNA TESTING WHEN
HE WAS REPRESENTED BY OLD CCR.
CCR-NORTH, BEFORE THEY WERE
DISSOLVED.
HE COULD HAVE SOUGHT DNA TESTING
THEN.
ANDREWS HAD JUST COME OUT.
EVERYBODY KNEW ABOUT DNA.
HE DIDN'T DO IT.
YOU HAVE IN THE CASE, WHILE
MR. JOHNSTON, THROUGH HIS
STATEMENTS, HAS TRIED TO EXPLAIN
-- AND I BELIEVE THERE ARE
EITHER FIVE OR SIX OF THEM, HE
TRIED TO EXPLAIN AWAY EVERYTHING
KIND OF PIECE BY PIECE, WHEN HE
FOUND OUT, FOR EXAMPLE, THAT LAW
ENFORCEMENT KNEW THAT HE HAD
THAT HE HAD SCRATCHES ON HIS
FACE AND NEXT, HE SAID I BOUGHT
A PUPPY AND THE PUPPY SCRATCHED
ME.
WHEN HE FINDS OUT THE BUTTERFLY
PENDANT IS TANGLED UP IN THE
VICTIM'S HAIR, HE SAYS, OH, I
HAVE KNOWN HER TWO OR THREE
YEARS AND I GAVE IT TO HER AS A
GIFT.
NEVER MIND THE FACT THAT HIS
FORMER FIANCEE TESTIFIED THAT
SHE -- AND SHE WORKED IN A
CONVENIENCE STORE, NOT TERRIBLY
FAR FROM THE CRIME SCENE,
TESTIFIED THAT SHE GAVE THAT
NECKLACE TO HIM AND THAT HE WAS
WEARING IT WHEN SHE SAW HIM,
SHORTLY BEFORE THE MURDER TOOK
PLACE.
NOW, THERE WAS TESTIMONY --
>> CAN YOU ADDRESS THE COMMENT
THAT OPPOSING COUNSEL MADE ABOUT
A HEART-SHAPED PENDANT AS
OPPOSED TO A BUTTERFLY PENDANT.
>> YOU ARE READING MY MIND,
JUSTICE!
YEAH.
THERE IS TESTIMONY, THAT HE HAD
A HEART-SHAPED NECKLACE ON ALSO.
THAT IS WHAT THAT TESTIMONY IS
ABOUT.
NONE OF THE WITNESSES ARE -- AND
LET ME... I WOULD DIRECT THE
COURT TO 572 AND 577, OF THE
RECORD.
AGAIN, FOLLOWED BY 713 OF THE
RECORD, WHERE MR. BARTON IS
TALKING ABOUT HIM HAVING ON A
HEART-SHAPED NECKLACE AND HE
SAID, YEAH, HE HAD ON THAT BUT
HE WAS NOT ASKED, DID HE OR DID
HE NOT HAVE A BUTTERFLY NECKLACE
ON HIM, THAT BUTTERFLY NECKLACE
WAS ON HIS NEXT UNTIL IT WAS
RIPPED OFF BY HIS VICTIM WHEN HE
KILLED HER AND THAT
MR. JOHNSTON'S WATCH, COVERED
WITH BLOOD AND FOUND IN THE
VICTIM'S APARTMENT BY THE
BATHROOM SINK DOESN'T CHANGE.
HE HAD IT ON SHORTLY PRIOR TO
THE MURDER.
>> I WANT TO ASK YOU, BACK TO
THE FINGER NAIL SCRAPINGS.
DOES THE STATE KNOW OR WAS THERE
ANY INQUIRY AS TO WHETHER THESE
SCRAPINGS STILL EXIST AND HAVE
SUFFICIENT AMOUNT OF MATERIAL TO
ALLOW FOR DNA TESTING?
>> I CAN ANSWER HALF OF THAT
QUESTION.
MY UNDERSTANDING FROM REVIEWING
THE EVIDENCE LOGS MAINTAINED BY
THE POLICE DEPARTMENT IS THAT
ITEMS DENOTED AS, QUOTE,
FINGERNAILS, CLOSE QUOTE, REMAIN
IN EVIDENCE AT ORLANDO PD.
WHETHER OR NOT THERE IS ANYTHING
UNDER OR CONTAINED IN OR ON
THOSE FINGERNAILS THAT CAN BE
TEST ORDER NOT, I DO THE NOT
KNOW.
WHETHER -- AND WHETHER -- AND I
SAY, WHETHER IT CAN OR CANNOT BE
TESTED, I MEAN, FIRST OF ALL,
DOES IT EXIST?
B, IS IT IN SUFFICIENT QUANTITY
TO BE TESTED AND, C, IS IT EACH
IN SUCH A STATE THAT TESTING IS
EVEN POSSIBLE.
I DO NOT KNOW THE ANSWER TO
THOSE QUESTIONS.
>> BUT IT WAS A RELEVANT ISSUE
AT TRIAL, THAT IS, THE
FINGERNAIL SCRAPINGS, AND
MR. HALL, WHO WAS ONE OF THE
WITNESS -- EXPERT WITNESSES WAS
ASKED WHY THEY WERE NOT ANALYZED
AND HIS -- OF COURSE AGAIN, IT
IS PRE-DNA AND HE SAID,
SOMETHING ABOUT IT IS OUTSIDE OF
MY FIELD TO DO IT.
SO, THERE IS NEVER IN THE
MEDICAL -- AND THE MEDICAL
EXAMINER CONFIRMED HE TOOK
SAMPLES FROM THE VICTIM'S
FINGERNAILS AND THERE IS NO REAL
EXPLANATION AS TO WHY THEY
WOULDN'T HAVE BEEN TESTED AND,
OF COURSE, DNA TESTING OF THIS
TYPE WAS NOT AVAILABLE --
CERTAINLY NOT AVAILABLE AT THE
TIME OF TRIAL.
AND THE PROSECUTOR ARGUED THAT
THE VICTIM WAS SCRATCHING AND
CLAWING AT JOHNSTON, BASING THAT
ON THE SCRATCH MARKS.
SO WHETHER YOU CALL IT THAT -- I
MEAN -- LET ME ASK YOU THIS
QUESTION:
IF THESE WERE TESTED AND IT
SHOWED THE DNA UNDER HER
FINGERNAILS DID NOT COME FROM
MR. JOHNSTON AND WAS -- NOT FROM
HER, WOULD THAT BE PRETTY
POWERFUL EVIDENCE?
>> NOT COUPLED WITH ALL OF THE
REST OF IT, BECAUSE, WHAT YOU
HAVE IN THE -- IN THIS CASE,
FIRST OF ALL, MR. JOHNSTON IS
STUCK WITH HIS STORY ABOUT THE
PUPPY SCRATCHING HIS FACE.
THE STATE OF THE EVIDENCE IS,
THAT THAT DID NOT HAPPEN.
IT IS UNDISPUTED THAT THE
BUTTERFLY PENDANT THAT WAS FOUND
IN ENGINE -- ENTANGLED IN THE
VICTIM'S HAIR, HAD A BROKEN
CHAIN.
THAT IS NOT DISPUTED.
IT IS A REASONABLE IN FENCE FROM
THE EVIDENCE --
INFERENCE FROM THE EVIDENCE,
REGARDLESS OF WHAT DNA TURNS UP
IN THE FINGER NAILS, IN THE
COURSE OF THE STRUGGLE, THAT IS
HOW THAT HAPPENED AND BOMB LINE,
JUSTICE PARIENTE, THE STATE'S
CASE DOESN'T CHANGE A BIT, BASED
UPON THE DNA EVIDENCE.
WE HAVE THE VICTIM'S BLOOD ON
THE DEFENDANT.
NEVER HAS BEEN DISPUTED.
IT WAS NEVER DISPUTED UNTIL THIS
MONTH.
>> WAS IT TEST --
>> MATCHED UP AB-O GROUP.
>> AND ON THE CLOTHING.
>> YES, MA'AM.
THAT WAS TESTED TO THE EXTENT OF
1984 TECHNOLOGY.
NO QUESTION ABOUT THAT.
HE'S ALWAYS SAID -- I MEAN, HE
SAID, HE GOT THE VICTIM'S BLOOD
ON HIM AND WHEN HE PICKED HER UP
AND CRADLED HER HEAD AND CRIED
OVER HER BODY WAS THE STORY HE
GAVE IN ONE OF HIS MULTIPLE
STATEMENTS, BUT THE BOTTOM LINE,
YOU HAVE AN ALIBI DEFENSE THAT
COLLAPSED.
YOU HAVE AN ATTEMPT BY JOHNSTON
TO POINT THE FINGER AT THIS
KEVIN WILLIAMS PERSON.
THAT COLLAPSED.
YOU HAVE JOHNSTON TAKING ITEMS
FROM -- RATHER, LET ME BACK UP.
TAKE PILLOW CASE OUT OF THE
VICTIM'S HOUSE AND GATHERING UP
A BUNCH OF ITEMS AND TAKE THEM
NEXT-DOOR AND HIDING THEM AT THE
DEMOLITION SITE NEXT-DOOR WHERE
HE WAS WORKING CLAIMING HE TOOK
THEM AS A MEMENTO OF THE VICTIM.
>> I UNDERSTAND AND YOU ALSO
HAVE A DEFENDANT WHO WAS THE ONE
THAT CALLED THE POLICE AND SAID,
YOU KNOW, CRYING, SOMEBODY
KILLED MY GRANDMA.
SO IT'S NOT LIKE HE -- I MEAN,
COMMITTED THE CRIME AND THEN
TRIED TO HIDE.
HE, I MEAN -- HE CALLED THE
POLICE.
NOW --
>> GAVE THEM A FAKE NAME WHEN HE
DID, TOO.
>> WHAT.
>> GAVE A FALSE NAME WHEN HE
DID.
>> I MEAN, THE HOME -- MAYBE THE
MURDERER IS EXPLAINED BY
SOMEBODY WHO IS MENTALLY ILL, I
MEAN, IT IS A VERY -- SEEMS LIKE
A VERY BIZARRE SET OF
CIRCUMSTANCES.
NOT THAT WE DON'T SEE THIS.
>> FORTUNATELY WE DON'T HAVE TO
-- THEY ARE NOT RATIONAL -- THEY
ARE FREQUENTLY NOT RATIONAL
ACTS.
BUT, LET ME -- SINCE YOU MENTION
THE MENTAL ILLNESS, LET ME --
>> THERE IS NO MENTAL
MITIGATION, IN THE CASE.
>> NO, THAT WAS AN ISSUE IN THE
'90S, THE 1991, 5850, AND '91,
'92, BEFORE I HAD THE CASE, AND
LET ME MENTION AND TOUCH ON THAT
A BIT.
WE ARE SEEING FOR THE FIRST TIME
AND I'M NOT TAKING A SHOT AT
MR. DOSS HE'S DOING A GOOD JOB
AND DOING THIS BEST HE CAN WITH
WHAT HE'S GOT AND THE FACT HE'D
DEFEND THE CASE IN
POSTCONVICTION DIFFERENTLY FROM
THE WAY IT HAS BEEN DONE BEFORE
IS NOT THE STANDARD, NOT WHAT WE
ARE HERE ABOUT.
WE ARE HERE ABOUT AND TO THE
EXTENT WE ARE TALKING ABOUT A
MENTAL ILLNESS CLAIM THAT, CLAIM
HAS NEVER, EVER BEEN RAISED TO
CHALLENGE MR. JOHNSTON'S
STATEMENTS UNTIL NOW.
AND THAT COMPONENT OF IT IS
PROCEDURAL BARRED, JUST LIKE ANY
OF THE OTHER TESTING ISSUES, THE
NON- DNA TESTING IS WHAT I
CALLED IT THAT IS BARRED AND
COULD HAVE BEEN DONE A LONG,
LONG, LONG TIME AGO.
AND IT WASN'T.
I DON'T KNOW WHY AND IT DOESN'T
MATTER, BECAUSE THAT IS A
PROCEDURAL BAR.
AS FAR AS THE DNA TESTING, THERE
IS NO TIME LIMIT ON IT.
BUT, THAT RULE AND THAT -- THE
STATUTE UNDERPINNING THE RULE,
WERE NEVER INTENDED TO BE A ONE
FREE STAY OF EXECUTION RULE.
I WOULD SUGGEST TO THE COURT
THAT THE TIMING OF ALL OF THAT
IS HIGHLY, HIGHLY SUSPECT.
AND I DON'T MEAN THAT IN A
DISPARAGING FASHION.
>> SPEAKING OF TIMING, HOW DO
YOU SEE THE TIMELINE FROM THE
ENACTMENT OF THE STATUTE AND THE
RULE AND HOW IT CORRESPONDS WITH
WHEN COUNSEL WAS APPOINTED AND
REPRESENTING THE GENTLEMAN, AND
WHEN THEY HAD WITHDRAWN OR FILED
MOTIONS TO WITHDRAW?
WHAT IS THE TIMELINE AND WHAT
WOULD THAT SHOW US.
>> WE ARE NOT THAT LATE, JUSTICE
LEWIS, WE ARE IN THE EARLY '90s
WHEN IT COULD HAVE BEEN DONE.
>> THE RULE WAS NOT IN THE EARLY
'90s, I'M ASKING ABOUT THE RULE,
IF YOU ADDRESS THAT, THE STATUTE
THERAPY RULE.
>> HE HAD THE OPPORTUNITY
POST-RULE TO MAKE THE MOTION HAD
HE CHOSEN TO DO SO AND WE --
>> I AGREE AND AGAIN, WOULD YOU
DEGREES WHEN HE HAD A LAWYER AND
WHEN HE DIDN'T?
>> HELP ME OUT OF WHEN THE RULE
TOOK EFFECT, JUSTICE LEWIS AND
I'LL HAVE TO...
>> THE RULE TOOK EFFECT,
PROBABLY, IN THE -- AROUND 2002,
I GUESS.
2, 4...
>> AMENDED IN 2006 AND 2007 TO
REMOVE THE TIME LIMITATIONS.
>> HE HAD A LAWYER, IN THE STATE
-- I'M SORRY.
THE FEDERAL HABEAS PROCEEDING
WHICH WAS LATE '90s AND WAS
REPRESENTED, STILL, BY THAT
ATTORNEY, I BELIEVE, UP UNTIL --
I AM HAVING TROUBLE REMEMBERING
ALL OF THE DATES.
I KNOW MR. MILLS CAME INTO IT,
AROUND 2003, OR 2004.
AND I KNOW THAT IS WHEN
MR. MILLS CAME IN, RIGHT WHEN
THE CASE WAS SENT BACK FOR...
>> MENTAL RETARDATION.
>> LET ME SEE IF I HAVE ANOTHER
TIMELINE TO HELP ME OUT HERE.
>> ISN'T IT THE CASE, THAT WE
HAVE TO LOOK AT THIS, AND
EVALUATE THIS, JUST LIKE WE
WOULD EVALUATE IT, IF HE HAD
RAISED IT, FIVE YEARS AGO.
OR SIX YEARS AGO.
OR, RIGHT AFTER THE RULE WAS
ADOPTED.
BECAUSE, IN ITS CURRENT
INCARNATION, THIS RULE HAS NO
TIME LIMIT.
THERE IS NO BAR IN THE RULES TO
BRINGING THIS UP AT THE 11th
HOUR.
>> THAT'S TRUE, IT'S NOT AND LET
ME -- FOUND THE TIMELINE AND GOT
MY CHEAT SHEET HERE.
HE WAS IN THE COURT IN 2000 ON A
PETITION FOR WRIT OF HABEAS
CORPUS, IN STATE CIRCUIT COURT
IN 2002, ON A 3.851 MOTION, AND
CAME OUT OF THIS COURT MAY THE
4TH OF 2006 WITH AN AFFIRMANCE,
AND YES.
HE HAD COUNSEL THAT WAS ACTIVELY
LITIGATING THAT CASE AND JUSTICE
LEWIS I APOLOGIZE FOR BEING SO
LOW TO GET TO THAT ANSWER FOR
YOU, TOO MANY DATES.
>> ONE LAST QUESTION.
IT SEEMS TO ME IN READING THIS
RECORD, THAT THE... STRUGGLE,
SEEMS TO ME SHE PROBABLY
SCRATCHED HIS FACE AND SEEMS TO
ME THE DNA... PROBABLY IS
UNDERNEATH HER NAIL.
THE NAIL CLIPPINGS, THAT ARE NOW
AT THE ORLANDO POLICE
DEPARTMENT.
WHY NOT JUST TEST IT AND WE'LL
BE SURE?
>> BECAUSE I DON'T MEAN, I DON'T
-- I MEAN NO DISRESPECT.
I REALLY DON'T...
>> [INAUDIBLE].
>> [LAUGHTER].
>> IT IS TOO EARLY FOR THAT,
STILL, BUT THE STANDARD IS NOT
WHAT DOES IT HURT.
THE STANDARD IS, IS THERE A
REASONABLE PROBABILITY OF A
DIFFERENT RESULT?
AND, UNDER THESE FACTS, WITH
THIS EVIDENCE, UNDER THE LEGAL
STANDARD --
>> YOU DON'T THINK A JURY OF 12
PEOPLE, IF THEY HEARD THAT THE
DNA, YOU KNOW, THE BLOOD
UNDERNEATH THE VICTIM'S NAILS,
BELONGED TO SOMEONE ELSE, THAT
THAT WOULD NOT RAISE THE ISSUE
WITH THEM.
>> NO, NOT AGAINST THE REST OF
THE FACTS.
NOT AGAINST THE REST OF THE
FACTS AND NOT AGAINST
MR. JOHNSTON'S PREEMPTIVE FAILED
EXPLANATION FOR THOSE FACTS,
WHICH COULD BE TURNED AROUND AND
ARGUED AS... GUILT YOU HAVE
SUBSTANTIAL OTHER EVIDENCE
WITHOUT THE SCRATCHES ON HIS
FACE, AND HE'S THIS ONE THAT
KILLED THE POOR LADY.
I WOULD SUGGEST THE LOWER COURT
SHOULD BE AFFIRMED IN ALL
RESPECTS, AND ANY STAY OF
EXECUTION SHOULD BE DENIED.
IT IS TIME FOR THE SENTENCE TO
BE CARRIED OUT.
>> THANK YOU, MR. NUNNELLEY,
MR. DOSS.
>> I'D LIKE TO FIRST TAKE ISSUE
WITH THE STATEMENT THAT THE
FINGERNAIL SCRAPINGS, WHETHER OR
NOT THERE IS ANYBODY ELSE'S
FLESH OR BLOOD IS ON THAT, FLIES
IN THE FACE OF THE OTHER
EVIDENCE, YOU CAN LOOK BACK TO
THE CLOSING ARGUMENT, THE
PROSECUTOR ARGUING THERE IS NO
EVIDENCE THAT ANYBODY ELSE WAS
IN THE APARTMENT DAVID
EUGENE JOHNSTON AND I WOULD ASK
YOU TO RETURN A VERDICT THAT
SPEAKS THE TRUTH BECAUSE THAT IS
WHAT A TRIAL IS, THAT IS 989.
AS WELL, THE PROSECUTOR ARGUED,
THAT HAPPENED DURING A VIOLENT
STRUGGLE.
THAT HAPPENED WHEN MARY HAMMOND
WAS FIGHTING FOR HER LIFE, WHEN
MARY HAMMOND WAS FIGHTING FOR
HER LIFE, THAT HAPPENED WHEN
MARY HAMMOND WAS SCRATCHING AND
CLAWING AT DAVID EUGENE JOHNSTON
WHEN SHE SCRATCHED HIS FACE AND
NEXT AND RIPPED THE CHAIN FROM
HIS NECK AND THEN IT LODGED IN
HER HAIR AND IT FLIES IN THE
FACE OF WHAT IS ARGUED HERE
TODAY.
THAT IT DOESN'T MATTER.
IT ABSOLUTELY MATTERS AND EACH
ONE -- EACH ONE OF THE ITEMS OF
EVIDENCE THAT HAS BEEN SUGGESTED
TO YOU THAT CONTINUED DISTRICTS
WHETHER OR NOT SOMEONE ELSE WAS
THERE, I DON'T SEE THE RELEVANCE
OF IT.
IT PALES IN COMPARISON TO THE
DNA OF SOMEONE ELSE, THE PUPPY,
AS WAS ARGUED IS SOMETHING THAT
WAS CONVENIENTLY CONJURED UP AND
MR. MARTIN SAID MR. JOHNSTON HAD
A PUPPY AND THERE IS AN ISSUE AS
TO WHETHER OR NOT IT WOULD
SCRATCH AND I URGE THE COURT TO
TAKE A LOOK.
I HAVE DETAILED IN FOOTNOTE 3,
REGARDING THE BUTTERFLY
NECKLACE, THAT, YES, PATRICIA
MANN INITIALLY STATED SHE HAD
SEEN HIM WEARING THE NECKLACE AT
572 AND LATER ADMITTED WHAT SHE
ACTUALLY SAW WAS THE
HEART-SHAPED PENDANT ON 577.
WHICH WAS ALSO CONFIRMED BY
MARTIN AT 713, A HEART-SHAPED
PEN DAN AND THERE IS ABSOLUTELY
DOUBT, MUCH MORE THAN WHAT THE
STATE WOULD LIKE TO ADMIT.
AS TO THE COURT QUESTIONS
REGARDING TIMING, ONCE THE
MENTAL RETARDATION CLAIM WAS
DENIED BY THE COURT IN 2006 AND
MAY, 2006, MR. MILLS, THEN MOVED
TO WITHDRAW.
HE WITHDREW AND MR. SOLIS WAS
APPOINTED.
AND MR. SOLIS NEVER TOOK TO IT
FEDERAL COURT AND NEVER
PROCEEDED ANYWHERE ELSE AND
ASKED TO WITHDRAW.
>> [INAUDIBLE].
>> I'M -- I COULDN'T --
>> DO YOU KNOW WHY WE ASKED TO
WITHDRAW.
>> HE SAYS THERE WERE NO OTHER
ISSUES, WHICH, WHICH MEANT HE
DIDN'T TAKE IT INTO FEDERAL
HABEAS COURT AND DIDN'T TAKE IT
ANYWHERE AND THAT LANGUAGE, FOR
A WHILE, HE WAS ALLOWED TO
WITHDRAW.
CCRC MENTAL WAS APPOINTED TO THE
CASE.
THEY MADE THEIR MOTION, IT
LANGUISHED.
UNTIL THE DEBT WARRANTED WAS
SIGNED AND JUDGE WADDLES
APPOINTED ME AND MR. JOHNSTON
HAS EFFECTIVELY BEEN WITHOUT
COUNSEL IN MY ESTIMATION SINCE
MAY OF 2006 WHICH IS A PERIOD OF
THREE YEARS, WHICH IS TIME
PERIOD WITHIN WHICH THE TIME BAR
WAS LIFTED, ON OUR RULE OF
CRIMINAL PROCEDURE 3.853 AND MY
RECOLLECTION OF THE AMENDMENT,
LIFTING THE TIME BAR IS 2006 AS
THE JUSTICE SUGGESTED AND WHEN
WE LOOK AT THAT AND WE CONSIDER
THIS CASE, THAT IT CRIES OUT FOR
THE DNA TESTING, AND THIS COURT
REVERSE AND SEND BACK TO THE
TRIAL COURT SO THE TESTING CAN
BE CONDUCTED.
APPRECIATE YOUR TIME.
>> THANK YOU, MR. DOS S AND
THANK YOU MORE NUNNELLEY, AND
THE COURT WILL TAKE ITS MORNING
RECESS FOR FIVE MINUTES.
>> PLEASE RISE.
Friday, May 22, 2009
Florida Executions
Florida Executions 05/20/09 - 03:08 PM
The Florida Supreme Court has heard appeals from two convicted killers whose death warrants have already been signed by Gov. Charlie Crist.
John Richard Marek was scheduled to be put to death last week, but the justices stayed his execution after his attorney asked for a postponement to address new evidence in the case.
Marek was sentenced to death for the June, 1983 kidnapping, rape and murder of Adella Marie Simmons in Broward County.
Simmons was one of two women returning home when their car broke down on the Florida Turnpike. Marek and his accomplice, Raymond Wigley, stopped and persuaded Simmons to ride with them to a service station.
They instead took her to a beach about 60 miles away where she was strangled with a bandanna after being sexually assaulted.
Marek was sentenced to death, but Wigley got life in prison.
Marek’s attorney, Martin McClain, made two points before the Supreme Court today, including the argument that Marek’s death sentence should be reduced because his accomplice received a life term.
McClain also contends there was inappropriate communication between the judge in Marek’s case and the state.
The other case heard today focused on David Johnston. He is scheduled to be executed May 27th after being convicted of stabbing and strangling 84-year-old Mary Hammond at her home in Orlando.
Johnston’s lawyer argues the execution should be delayed to perform DNA testing that could exonerate him.
Ron McAndrew: Florida must abolish flawed death penalty
Ron McAndrew: Florida must abolish flawed death penalty
http://www.orlandosentinel.com/news/opinion/edp-ron-mcandrew-death-penalty-052209,0,3152848.story
http://www.orlandosentinel.com/news/opinion/edp-ron-mcandrew-death-penalty-052209,0,3152848.story
By Ron McAndrew Special to the Sentinel
Ron McAndrew
"Capital punishment: them without the capital get the punishment." Those were the last words of John Spenkelink, executed 30 years ago today in Starke on May 25, 1979 for murdering traveling companion Joseph Szymankiewicz. Spenkelink was the first person executed in the state, the second nationwide after a 1976 U.S. Supreme Court ruling reinstated capital punishment.
As a former Florida prison warden who carried out three electric-chair executions and shadowed five lethal-injection executions in Texas, I know that Spenkelink was correct: Most death-row inmates cannot afford experienced attorneys.
Once, I firmly supported capital punishment. Part of my job was to help strap prisoners into the electric chair, and signal the anonymous, hooded executioner to administer the current. But each execution lessened my support. In Texas, I thought the more "civilized" executions by lethal injection would remove my repugnance. They didn't.My change of heart was gradual and painful. At night I would awaken to visions of executed inmates sitting on the edge of my bed.
I began studying capital-punishment history, searching the Internet for the reasons behind executions over the centuries. I was appalled to think I had been part of this ceremonial barbaric act committed to appease chest-pounding politicians attempting to appear "tough on crime."
I began studying capital-punishment history, searching the Internet for the reasons behind executions over the centuries. I was appalled to think I had been part of this ceremonial barbaric act committed to appease chest-pounding politicians attempting to appear "tough on crime."
An experience I had this January underscored my transformation. I was a speaker at the National Coalition to Abolish the Death Penalty's conference in Pennsylvania. In the conference venue one day, a man turned to me as I approached. Shockingly, I saw two men talking. One of them turned as I approached. With a shock I realized the last time I saw this gentle soul was inside a Florida death-row prison cell; I was his warden.
We embraced. My heart was overwhelmed. It was Juan Melendez, an exoneree who had spent 17 years, eight months and one day on death row for a crime he didn't commit. As his warden, I could have taken this innocent man from his cell into the death chamber.
Melendez's case is typical for many on death row. Substandard representation and prosecutorial misconduct are among the reasons for exonerations over the years -- 133 men and women since 1973. Three men were exonerated this year. Florida leads the nation in exonerations since 1973 with 22.
Race is a factor in death sentences. According to the NAACP Legal Defense and Educational Fund report "Death Row U.S.A. Winter 2009," 41.58 percent of death-row inmates nationally are African-American, although they comprise 13.5 percent of the U.S. The percentage is similar in Florida. Florida's population is 14.6 percent African-American but 35 percent of its death row. Eighty percent of death-row inmates of color nationally were sentenced for killing white victims.
Since the Spenkelink execution, research revealed how capital punishment drains states' financial resources that could otherwise fund better law enforcement, crime-prevention programs, counseling and other support for murder victims' families, and reinvestigations of unsolved homicides. The cost issue figured prominently in several states' repeal bills this year, including New Mexico's, which abolished capital punishment in March. Florida executed 67 death-row inmates between 1976 and 2008 at approximately $24 million per execution.
In 30 years, Americans began realizing that capital punishment doesn't deter homicides. Florida, with 402 death-row inmates -- the second-largest death-row-inmate population nationally after California's -- has one of the highest murder rates nationally. The rate is 6.6 people per capita, or per 100,000 people, more than the average national murder rate of 5.5 people per capita and higher than the murder rate in states without the death penalty, 3.1 people per capita.
The lesson that I, and all of us, should learn post-Spenkelink is that capital punishment does not ensure public safety, and has no safeguards against wrongful executions. The 35 death-penalty states, Florida included, should abolish it, replace it with life without parole, and apply the savings where they would do the most good -- helping homicide victims' survivors and funding effective law enforcement that protects our communities.
Ron McAndrew spent 25 years in Florida corrections before retiring, working his way up from an entry-level corrections officer to a warden in the Florida State Penitentiary. He also served as the interim director of the Orange County jail in Orlando.
The replybrief in David Johnston
http://david-johnston.us/legal/replybriefjohnston.htm
http://david-johnston.us/legal/Filed_05-15-2009_Reply_Brief.pdf
IN THE SUPREME COURT OF FLORIDA
CASE NO. SC09-839
DAVID EUGENE JOHNSTON,
Petitioner,
v.
STATE OF FLORIDA,
Respondent.
ON APPEAL FROM THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT,IN AND FOR ORANGE COUNTY, STATE OF FLORIDA
REPLY BRIEF OF APPELLANT
D. Todd Doss Florida Bar No. 0910384 725 Southeast Baya DriveSuite 102 Lake City, FL 32025
(386) 755-9119
COUNSEL FOR APPELLANT
TABLE OF CONTENTS
Table of Contents ........................................................... i Table of Authorities .......................................................... ii Argument I THE TRIAL COURT ERRED IN DENYING MR. JOHNSTON’S
........................................................... 1 RULE 3.853 MOTION FOR POSTCONVICTION DNA TESTING ARGUMENT II
NEWLY DISCOVERED EVIDENCE HAS REVEALED THAT MR.
JOHNSTON WAS CONVICTED BASED UPON INFIRM FORENSIC EVIDENCE IN VIOLATION OF THE FIFTH, EIGHTH, ANDFOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION
........................................................... 4
ARGUMENT III
THE TRIAL COURT ERRED IN DENYING MR. JOHNSTON’S REQUEST FORFORENSIC TESTING RESULTING IN A VIOLATION OF MR. JOHNSTON’S RIGHTS TO DUE PROCESS UNDER BOTH THE U.S. AND FLORIDA CONSTITUTIONS
........................................................... 6
ARGUMENT IV
THE CLEMENCY PROCESS AND THE MANNER IN WHICH IT WAS DETERMINED THAT MR. JOHNSTON SHOULD RECEIVE A DEATH WARRANT ON APRIL 20, 2009, WAS ARBITRARY AND CAPRICIOUSAND IN VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS
.......................................................... 11
i
ARGUMENT VI BECAUSE OF THE INORDINATE LENGTH OF TIME THAT MR. JOHNSTON HAS SPENT ON DEATH ROW, ADDING HIS EXECUTIONTO THAT PUNISHMENT WOULD CONSTITUTE CRUEL AND UNUSUAL PUNISHMENT IN VIOLATION OF THE EIGHTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION, ANDBINDING NORMS OF INTERNATIONAL LAW .......................................................... 12 CONCLUSION .......................................................... 12 CERTIFICATE OF SERVICE .......................................................... 13 CERTIFICATE OF FONT .......................................................... 13
TABLE OF AUTHORITIES
Guzman v. State, 868 So.2d 498 (Fla. 2003)................. 4
Harbison v. Bell, – U.S. – (April 1, 2009) ............... 11
Marek v. State, - Fla. S.Ct. - ........................ 11-12
Osborne v. District Attorney’s Office, 521 F.3d 1118(9th Cir. 2008), cert.granted, (currently pending)District Attorney’s Office v. Osborne (U.S. Sup. Ct.,Case No. 08-6) ........................................ 10-11
Trepal v. State, 846 So.2d, 405 (Fla. 2003) ............. 4-5
PROCEDURAL RULES
Fla. R. Crim. P. 3.853 .................................. 2-4
STATUTES
Sec. 27.51(5)(a), Fla. Stat. ............................. 11
ii
Sec. 27.511(9), Fla. Stat. ............................... 12
Sec. 27.5303(4), Fla. Stat. .............................. 12
TREATISES, ARTICLES and GUIDELINES
Strengthening Forensic Science in the United States: A Path Forward (free Executive Summary)
http://www.nap.edu/catalog/12589.html,last viewed May 5, 2009 ................................. 5-6
Office of the Inspector General, U.S. Dept. Of Justice,
The FBI Laboratory: An Investigation into Laboratory Practices and Alleged Misconduct in Explosive-Related and Other Cases (1997) ................................... 4-5
iii
ARGUMENT IN REPLY
ARGUMENT I
THE TRIAL COURT ERRED IN DENYING MR. JOHNSTON’S RULE
3.853 MOTION FOR POSTCONVICTION DNA TESTING.
The State begins by reciting the circuit court’s order denying Mr. Johnston’s claim. The State then reiterates that Mr. Johnston had scratches on his face and neck immediately after the victim’s body was found, that they were not present prior to the murder, and that they were not caused by Mr. Johnston’s puppy (Answer at 5, fn 2). The logical conclusion to be drawn from the State’s argument is that the scratches on Mr. Johnston had to have come from the victim.1 By the State’s own argument, it would seem that DNA testing is appropriate here. If the DNA evidence under the victim’s fingernails does not match Mr. Johnston, then he did not commit the murder.
The State proceeds to assert that Mr. Johnston is suggesting that the evidence against him be re-assessed and that Mr. Johnston is arguing for a complete review of the sufficiency of the evidence (Answer at 6). Contrary to the State’s version of Mr. Johnston’s argument, Mr. Johnston presented facts to establish that favorable DNA results would exonerate him from the
1In fact, during Mr. Johnston’s trial, the prosecutorasserted that there was a violent struggle, during which thevictim scratched Mr. Johnston’s face and neck (T. 986).
-1-
crime.2 This was his burden under Fla. R. Crim. P. 3.853. Mr.
Johnston has met this burden, and the State has done nothing to
show otherwise.3
The State also claims that Mr. Johnston’s 3.853 motion does
not explain how DNA testing could prove his innocence (Answer at
8). The State is mistaken. As Mr. Johnston explained in his
3.853 motion, the State linked Mr. Johnston’s scratches on his
face and neck, as well as the blood on his clothes and shoes, to
the murder. Investigator Dupuis testified as to these stains and
how the blood spatter projected from the victim to Mr. Johnston.
In a case in which there were no eyewitnesses, no fingerprint
evidence, no hair evidence and no confession, the absence of the
victim’s blood on Mr. Johnston, as well as the absence of Mr.
2Moreover, the State ignores the point that Mr. Johnston ismaking: that he is mentally ill, that he has made manyinconsistent statements, and that the circuit court cherry-pickedonly those statements that were beneficial to denying this issue.
3The State’s claim that witnesses confirmed Mr. Johnston’s ownership of the butterfly necklace and the watch (Answer at 7,fn 5), is misleading. While Patricia Mann initially stated thatshe had seen Mr. Johnston wearing this necklace at the 7-ElevenStore prior to the murder (T. 572), she later admitted that whatshe actually saw around his neck was a heart-shaped necklace (T.577). The fact that Mr. Johnston was wearing a heart-shapednecklace that evening was later confirmed by the testimony ofFarron Martin who stated that Mr. Johnston was wearing a heart-shaped pendant when he left the apartment at 1:00 A.M. (T. 713).
Additionally, Officer Candeleria testified that heencountered Mr. Johnston earlier that morning at a bar and thathe noticed the watch Mr. Johnston was wearing (T. 531). Officer Candeleria subsequently testified at trial that the watch foundat the scene appeared to be the same watch he saw Mr. Johnstonwearing earlier at the bar (T. 531).
-2-
Johnston’s DNA under the victim’s fingernails, would surely result in an exoneration.
In asserting that this case does not present a factual scenario where DNA testing could provide any benefit, the State in an accompanying footnote seemingly relies on the fact that no testing was conducted at the 1984 trial on the fingernail scrapings because of the impossibility of obtaining meaningful results (Answer at 9, fn 6). The State cannot possibly believe that science hasn’t advanced in the last 25 years to allow for such testing today. Even the most casual observer would likely recognize that minute quantities of blood are sufficient for DNA testing.4
As a final point, while conceding that Mr. Johnston’s 3.853 motion is "technically permissible" (Answer at 11), the State nevertheless disparages Mr. Johnston for pursuing an avenue to which he is entitled ("Johnston’s motion is no more than a blatant and frivolous attempt to delay his execution" (Answer at 11). Perhaps the State’s need to resort to such tactics is its way of attempting to avoid the fact that Mr. Johnston has satisfied the requirements of Rule 3.853 and is therefore
4Forensic serologist Keith Paul testified at trial thatthere appeared to be minute quantities of blood on submittedfingernails, but he conducted no tests because the amount wasinsufficient for testing purposes (T. 879).
-3-
entitled to DNA testing.5 Mr. Johnston submits that this case should be remanded to the circuit court for DNA testing in accordance with Fla. R. Crim. P. 3.853.
ARGUMENT II
NEWLY DISCOVERED EVIDENCE HAS REVEALED THAT MR. JOHNSTON WAS CONVICTED BASED UPON INFIRM FORENSIC EVIDENCE IN VIOLATION OF THE FIFTH, EIGHTH, ANDFOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION.
This Court has recognized that "reports" issued by governmental or other bodies that affect the integrity of a defendant’s trial or penalty phase can constitute newly discovered evidence. See, Trepal v. State, 846 So.2d, 405, 409410 (Fla. 2003)(relinquishing jurisdiction for defendant to file a new successive motion to vacate judgment and sentence based on the newly discovered information in the report released by Office of the Inspector General, U.S. Dept. Of Justice, The FBI Laboratory: An Investigation into Laboratory Practices and Alleged Misconduct in Explosive-Related and Other Cases (1997); receded from on other grounds, Guzman v. State, 868 So.2d 498 (Fla. 2003). The State takes issue with that fact and argues that "To the extent that further discussion is necessary, reports similar in character to this one have not been considered to be
5Undersigned counsel was appointed to this case less thanthree weeks ago. He reviewed the case and raised what he considered to be viable issues. Undersigned counsel raised theseissues in good faith, and any insinuation by the State to thecontrary is both uncalled for and untrue.
-4-
newly discovered evidence. Trepal v. State, 846 So.2d 405(Fla. 2003). FN8 The report in Trepal contained information that actually concerned the case before the court. Trepal, 846 So.2d at 409. That is certainly not the case here." (Answer at 14).
The State is mistaken as to what Trepal involved and its implications. The relevant issue argued in Trepal, as it relates to the case at bar, concerned the investigation into fraud at the FBI Laboratory and specifically the reported findings. See, Office of the Inspector General, U.S. Dep’t of Justice, The FBI Laboratory: An Investigation into Laboratory Practices and Alleged Misconduct in Explosive-Related and Other Cases (1997). Trepal’s case was one of those investigated and this Court remanded his case while on appeal to allow Trepal to file a postconviction motion in the circuit court to address the relevant claims. A full evidentiary hearing was held on Trepal’s motion. Although Trepal’s claim was ultimately denied, Trepal, 846 So.2d at 409, this Court did not hold that the report was not newly discovered evidence as implied by the State in its argument. Significantly, as noted above, this Court remanded for an evidentiary hearing on the matters in the report that related to Trepal. The same should be done in Mr. Johnston’s case with regard to the type of testing that was conducted and thereafter questioned in the National Academy of Sciences report, Strengthening Forensic Science in the United State: A Path
-5-
Forward, http://www.nap.edu/catalog/12589.html, Prepublication Copy.
ARGUMENT III
THE TRIAL COURT ERRED IN DENYING MR. JOHNSTON’S REQUEST
FOR FORENSIC TESTING RESULTING IN A VIOLATION OF MR.
JOHNSTON’S RIGHTS TO DUE PROCESS UNDER BOTH THE U.S.
AND FLORIDA CONSTITUTIONS.
The circuit court and the State have both misapprehended the value of the forensic testing requested by Mr. Johnston. The State quotes and champions the circuit court’s finding that "there is no reasonable probability that the results of additional forensic testing would exonerate Mr. Johnston of the crime (Answer at 16). In doing so, the State ignores the fact that other than the aforementioned conclusory statement, the circuit court provides no rationale for the basis of its denial.
A review of the record reveals just how important the forensic evidence was to the State’s case. The State’s closing argument, for example, belies the State’s current claim that the forensic evidence and any testing of it would not have any bearing on Mr. Johnston’s case, much less tend to exonerate him:
Now, Mr. Wolfe mentioned to you that much of theState’s case is based on circumstantial evidence. I would agree that a good deal of the State’s caseis based on circumstantial evidence.
(T. 958). * * *
-6-
When Mr. Wolfe has talked to you a little bit
about the officers who got to the scene and that Mr.
Johnston was there, from listening to Mr. Wolfe’s
argument, I suspect that he wants you to believe that
at that time the officers decided that David Johnston
was there, that he had made a few minor contradictions
in his statements and that they decided to arrest him.
Well, I would ask you to carefully consider the
evidence and what the officers knew when they got
there. When the officers first arrived on scene they
didn’t have any reason to suspect David Johnston.
He was the person that called the 911 number and
reported it at that point in time. They didn’t have any
reason to look at him and think that he was the
suspect.
It was the physical evidence they found at the
scene and the stories that Mr. Johnston had told them
that aroused their suspicions at that time and what did
Mr. Johnston do?
(T. 959).
* * *
Now, what else did the officers notice at thescene?
The officers also noticed some scratch marks on
Mr. Johnston’s face. They asked him if he had been in
any arguments or anything earlier in the evening and he
hadn’t and that was some good hard evidence the officer
saw at the scene that aroused their suspicions about
Mr. Johnston.
(T. 960-61).
* * *
What else did the officers know before they madethe arrest?
The officers had investigated the outside of the
scene and they found some footprints outside by the
front kitchen window. That was another piece of
evidence that they had.
-7-
They compared that with the shoes of Mr. Johnstonat that point in time and the treadwear on his shoesseemed to match the footprints they saw outside thewindow which would lead the officers to believe that David Eugene Johnston broke the front window to MaryHammond’s apartment and Mr. Johnston in his initialstatements to the police never mentioned him standingaround that front window to the apartment.6
(T. 962).
* * *
Mr. Wolfe wants you to believe that whoever thereal murderer is, their fingerprints are on the cokecan but no where (sic) else in the apartment.
If you will remember the testimony of OfficerHietchew, the fingerprints are not always left whensomeone touches an object.
All right. Fingerprints are sometimes left. Thereare certain factors that come into consideration. The fingerprints last for periods of time.
It’s just as consistent that whoever bought thatcoke can, if Miss Hammond bought it at the grocerystore and a bagboy touched it and put it in her car.It’s just as consistent as being the real murderers.
There is no way of knowing who those fingerprints
6 Mr. Johnston has requested testing and examination ofthese footprints. Plaster casts are still in evidence at theOrlando Police Department.
Interestingly, the State also had Terrel Kingery testifyregarding pattern evidence relating to Mr. Johnston’s shoes (T.740-52). He received plaster casts, a pair of shoes, andphotographs of shoe tracks, among other things (T. 742).Subsequently, he compared the prints and expressed the opinionthat Mr. Johnston’s left shoe could have made the print (T. 745).Kingery described the process he utilized as inking the shoes,putting the shoes on his feet (not the same size as Mr. Johnston)and then personally making the prints. He admitted the shoes had already been tested for blood and that he did not use the samesoil as that at the crime scene.
-8-
belong to.7
(T. 982).
* * *
That happened during a violent struggle. Thathappened when Mary Hammond was fighting for her life.That happened when Mary Hammond was fighting for herlife. That happened when Mary Hammond was scratchingand clawing at David Eugene Johnston when she scratchedhis face and his neck and she ripped that chain fromhis neck and then it lodged in her hair.8
(T. 986)(emphasis added).
* * *
There is no evidence that anybody else was in thatapartment except David Eugene Johnston and I would ask you to return a verdict that speaks the truth becausethat’s what a trial is.
(T. 989)(emphasis added).
For the State to now advance and persist in its argument
that somehow the forensic evidence is irrelevant to this case is
baseless and without merit. At trial, the State relied
extensively upon the forensic evidence to establish that Mr.
Johnston was the one and only assailant of Mary Hammond and to
7 Gene Hietchew testified that fourteen latent prints hadbeen lifted at the crime scene of which four were usable (T.681). The prints did not match Mary Hammond, Kevin Williams, orDavid Johnston (T. 682). However, the police failed to comparethe prints of Jose Gutierrez who had been observed within hoursof the crime sitting in the driveway looking as if he werespoiling for a fight. Mr. Johnston has requested the opportunityto compare those fingerprints.
8 The fingernail clippings containing flesh and blood arestill in the possession of Orlando Police Department.
-9-
disprove his assertion that she had already been attacked prior to his arrival.
In Mr. Johnston’s case the value of the testing is heightened by the State’s reliance on the contradictions in his statements, Mr. Johnston’s profound mental illness, brain damage and the fact he operates at a mental age of 6.6 years to 11.8 years.9 Mentally challenged individuals such as Mr. Johnston often have difficulty remembering events and/or recounting them accurately. This inability heightens the risk of wrongful conviction and the need for forensic testing. When considered in conjunction with the newly discovered evidence claim that the testing procedures used in capital cases such as Mr. Johnston’s have been exposed as oftentimes fraught with error, it becomes glaringly apparent that Mr. Johnston’s case requires an independent forensic review of the evidence by his own forensic experts.
Additional testing of the evidence listed above is critical to Mr. Johnston’s claim of innocence, and would in no way harm the State. It would be a violation of due process for Mr. Johnston to be denied access to independent forensic testing in this case. See Osborne v. District Attorney’s Office, 521 F.3d 1118 (9th Cir. 2008), cert.granted, (currently pending) District
9 A neuropsychological evaluation conducted on May 5, 2009revealed the mental age cited.
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Attorney’s Office v. Osborne (U.S. Sup. Ct., Case No. 08-6). Clearly, the requested testing should be allowed and relief should issue.
ARGUMENT IV
THE CLEMENCY PROCESS AND THE MANNER IN WHICH IT WAS DETERMINED THAT MR. JOHNSTON SHOULD RECEIVE A DEATH WARRANT ON APRIL 20, 2009, WAS ARBITRARY AND CAPRICIOUSAND IN VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS.
In opposing this claim, the State relies on the fact that Mr. Johnston had a clemency proceeding in 1987 (Answer at 19). The State fails to address Mr. Johnston’s argument that the process that occurred in 1987 before Mr. Johnston’s life history was fully developed cannot be the "fail safe" that is envisioned by the United States Supreme Court. See Harbison v. Bell, – U.S.
– (April 1, 2009).
The State also asserts that Mr. Johnston’s argument that collateral counsel was precluded from seeking clemency until Harbison was decided "makes no sense". (Answer at 20). Perhaps the State has somehow overlooked the fact that in Marek v. State, the State represented to this Court, "For the Court’s benefit, it should be noted, first that Mr. McClain has asserted he will not
have adequate time to properly litigate Marek‘s case, however, in
spite of the state statute barring CCRC and registry appointed
counsel from handling clemency, he will devote his time to the
preparation of a clemency application. See Sections 27.51(5)(a);
-11-
27.511(9); and 27.5303(4), Fla. Statutes." (Marek v. State, Case No. 09-765, April 30, 2009 Answer Brief at 45,)(emphasis added). Mr. Johnston submits that relief is warranted.
ARGUMENT VI
BECAUSE OF THE INORDINATE LENGTH OF TIME THAT MR. JOHNSTON HAS SPENT ON DEATH ROW, ADDING HIS EXECUTIONTO THAT PUNISHMENT WOULD CONSTITUTE CRUEL AND UNUSUAL PUNISHMENT IN VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, ANDBINDING NORMS OF INTERNATIONAL LAW.
The State asserts with bold emphasis that Mr. Johnston "cannot now contend that his punishment has been illegally prolonged because the delay in carrying out his sentence is in large part due to his own actions in challenging his conviction and sentence." (Answer at 27-28)(emphasis in original). In making this statement, the State neglects to address the fact that Mr. Johnston has been eligible for execution since 1999, when his first round of postconviction appeals were exhausted in state and federal court.10 Thus, the delay in carrying out Mr. Johnston’s execution is not attributable to him.
CONCLUSION
Based upon the record and his arguments, Mr. Johnston respectfully urges the Court to reverse the lower court, order a
10The fact that successive postconviction motions do notprevent a warrant from being signed is evident from the case ofMarek v. State, where Marek had a pending successive 3.851 motionwhen the Governor signed his warrant on April 20, 2009.
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new trial and/or resentencing, impose a sentence of life imprisonment, and/or remand for an evidentiary hearing.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing has been furnished by electronic transmission and U.S. Mail, postage prepaid, to Kenneth S. Nunnelley, Office of the Attorney General, 444 Seabreeze Blvd., 5th Floor, Daytona Beach, FL 32118 on May 15, 2009.
CERTIFICATE OF FONT
This is to certify that this Reply Brief has been produced in a 12 point Courier type, a font that is not proportionately spaced.
D. TODD DOSS Florida Bar No. 0910384 725 Southeast Baya DriveSuite 102 Lake City, FL 32025-6092Telephone (386) 755-9119Facsimile (386) 755-3181
-13-
http://david-johnston.us/legal/Filed_05-15-2009_Reply_Brief.pdf
IN THE SUPREME COURT OF FLORIDA
CASE NO. SC09-839
DAVID EUGENE JOHNSTON,
Petitioner,
v.
STATE OF FLORIDA,
Respondent.
ON APPEAL FROM THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT,IN AND FOR ORANGE COUNTY, STATE OF FLORIDA
REPLY BRIEF OF APPELLANT
D. Todd Doss Florida Bar No. 0910384 725 Southeast Baya DriveSuite 102 Lake City, FL 32025
(386) 755-9119
COUNSEL FOR APPELLANT
TABLE OF CONTENTS
Table of Contents ........................................................... i Table of Authorities .......................................................... ii Argument I THE TRIAL COURT ERRED IN DENYING MR. JOHNSTON’S
........................................................... 1 RULE 3.853 MOTION FOR POSTCONVICTION DNA TESTING ARGUMENT II
NEWLY DISCOVERED EVIDENCE HAS REVEALED THAT MR.
JOHNSTON WAS CONVICTED BASED UPON INFIRM FORENSIC EVIDENCE IN VIOLATION OF THE FIFTH, EIGHTH, ANDFOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION
........................................................... 4
ARGUMENT III
THE TRIAL COURT ERRED IN DENYING MR. JOHNSTON’S REQUEST FORFORENSIC TESTING RESULTING IN A VIOLATION OF MR. JOHNSTON’S RIGHTS TO DUE PROCESS UNDER BOTH THE U.S. AND FLORIDA CONSTITUTIONS
........................................................... 6
ARGUMENT IV
THE CLEMENCY PROCESS AND THE MANNER IN WHICH IT WAS DETERMINED THAT MR. JOHNSTON SHOULD RECEIVE A DEATH WARRANT ON APRIL 20, 2009, WAS ARBITRARY AND CAPRICIOUSAND IN VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS
.......................................................... 11
i
ARGUMENT VI BECAUSE OF THE INORDINATE LENGTH OF TIME THAT MR. JOHNSTON HAS SPENT ON DEATH ROW, ADDING HIS EXECUTIONTO THAT PUNISHMENT WOULD CONSTITUTE CRUEL AND UNUSUAL PUNISHMENT IN VIOLATION OF THE EIGHTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION, ANDBINDING NORMS OF INTERNATIONAL LAW .......................................................... 12 CONCLUSION .......................................................... 12 CERTIFICATE OF SERVICE .......................................................... 13 CERTIFICATE OF FONT .......................................................... 13
TABLE OF AUTHORITIES
Guzman v. State, 868 So.2d 498 (Fla. 2003)................. 4
Harbison v. Bell, – U.S. – (April 1, 2009) ............... 11
Marek v. State, - Fla. S.Ct. - ........................ 11-12
Osborne v. District Attorney’s Office, 521 F.3d 1118(9th Cir. 2008), cert.granted, (currently pending)District Attorney’s Office v. Osborne (U.S. Sup. Ct.,Case No. 08-6) ........................................ 10-11
Trepal v. State, 846 So.2d, 405 (Fla. 2003) ............. 4-5
PROCEDURAL RULES
Fla. R. Crim. P. 3.853 .................................. 2-4
STATUTES
Sec. 27.51(5)(a), Fla. Stat. ............................. 11
ii
Sec. 27.511(9), Fla. Stat. ............................... 12
Sec. 27.5303(4), Fla. Stat. .............................. 12
TREATISES, ARTICLES and GUIDELINES
Strengthening Forensic Science in the United States: A Path Forward (free Executive Summary)
http://www.nap.edu/catalog/12589.html,last viewed May 5, 2009 ................................. 5-6
Office of the Inspector General, U.S. Dept. Of Justice,
The FBI Laboratory: An Investigation into Laboratory Practices and Alleged Misconduct in Explosive-Related and Other Cases (1997) ................................... 4-5
iii
ARGUMENT IN REPLY
ARGUMENT I
THE TRIAL COURT ERRED IN DENYING MR. JOHNSTON’S RULE
3.853 MOTION FOR POSTCONVICTION DNA TESTING.
The State begins by reciting the circuit court’s order denying Mr. Johnston’s claim. The State then reiterates that Mr. Johnston had scratches on his face and neck immediately after the victim’s body was found, that they were not present prior to the murder, and that they were not caused by Mr. Johnston’s puppy (Answer at 5, fn 2). The logical conclusion to be drawn from the State’s argument is that the scratches on Mr. Johnston had to have come from the victim.1 By the State’s own argument, it would seem that DNA testing is appropriate here. If the DNA evidence under the victim’s fingernails does not match Mr. Johnston, then he did not commit the murder.
The State proceeds to assert that Mr. Johnston is suggesting that the evidence against him be re-assessed and that Mr. Johnston is arguing for a complete review of the sufficiency of the evidence (Answer at 6). Contrary to the State’s version of Mr. Johnston’s argument, Mr. Johnston presented facts to establish that favorable DNA results would exonerate him from the
1In fact, during Mr. Johnston’s trial, the prosecutorasserted that there was a violent struggle, during which thevictim scratched Mr. Johnston’s face and neck (T. 986).
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crime.2 This was his burden under Fla. R. Crim. P. 3.853. Mr.
Johnston has met this burden, and the State has done nothing to
show otherwise.3
The State also claims that Mr. Johnston’s 3.853 motion does
not explain how DNA testing could prove his innocence (Answer at
8). The State is mistaken. As Mr. Johnston explained in his
3.853 motion, the State linked Mr. Johnston’s scratches on his
face and neck, as well as the blood on his clothes and shoes, to
the murder. Investigator Dupuis testified as to these stains and
how the blood spatter projected from the victim to Mr. Johnston.
In a case in which there were no eyewitnesses, no fingerprint
evidence, no hair evidence and no confession, the absence of the
victim’s blood on Mr. Johnston, as well as the absence of Mr.
2Moreover, the State ignores the point that Mr. Johnston ismaking: that he is mentally ill, that he has made manyinconsistent statements, and that the circuit court cherry-pickedonly those statements that were beneficial to denying this issue.
3The State’s claim that witnesses confirmed Mr. Johnston’s ownership of the butterfly necklace and the watch (Answer at 7,fn 5), is misleading. While Patricia Mann initially stated thatshe had seen Mr. Johnston wearing this necklace at the 7-ElevenStore prior to the murder (T. 572), she later admitted that whatshe actually saw around his neck was a heart-shaped necklace (T.577). The fact that Mr. Johnston was wearing a heart-shapednecklace that evening was later confirmed by the testimony ofFarron Martin who stated that Mr. Johnston was wearing a heart-shaped pendant when he left the apartment at 1:00 A.M. (T. 713).
Additionally, Officer Candeleria testified that heencountered Mr. Johnston earlier that morning at a bar and thathe noticed the watch Mr. Johnston was wearing (T. 531). Officer Candeleria subsequently testified at trial that the watch foundat the scene appeared to be the same watch he saw Mr. Johnstonwearing earlier at the bar (T. 531).
-2-
Johnston’s DNA under the victim’s fingernails, would surely result in an exoneration.
In asserting that this case does not present a factual scenario where DNA testing could provide any benefit, the State in an accompanying footnote seemingly relies on the fact that no testing was conducted at the 1984 trial on the fingernail scrapings because of the impossibility of obtaining meaningful results (Answer at 9, fn 6). The State cannot possibly believe that science hasn’t advanced in the last 25 years to allow for such testing today. Even the most casual observer would likely recognize that minute quantities of blood are sufficient for DNA testing.4
As a final point, while conceding that Mr. Johnston’s 3.853 motion is "technically permissible" (Answer at 11), the State nevertheless disparages Mr. Johnston for pursuing an avenue to which he is entitled ("Johnston’s motion is no more than a blatant and frivolous attempt to delay his execution" (Answer at 11). Perhaps the State’s need to resort to such tactics is its way of attempting to avoid the fact that Mr. Johnston has satisfied the requirements of Rule 3.853 and is therefore
4Forensic serologist Keith Paul testified at trial thatthere appeared to be minute quantities of blood on submittedfingernails, but he conducted no tests because the amount wasinsufficient for testing purposes (T. 879).
-3-
entitled to DNA testing.5 Mr. Johnston submits that this case should be remanded to the circuit court for DNA testing in accordance with Fla. R. Crim. P. 3.853.
ARGUMENT II
NEWLY DISCOVERED EVIDENCE HAS REVEALED THAT MR. JOHNSTON WAS CONVICTED BASED UPON INFIRM FORENSIC EVIDENCE IN VIOLATION OF THE FIFTH, EIGHTH, ANDFOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION.
This Court has recognized that "reports" issued by governmental or other bodies that affect the integrity of a defendant’s trial or penalty phase can constitute newly discovered evidence. See, Trepal v. State, 846 So.2d, 405, 409410 (Fla. 2003)(relinquishing jurisdiction for defendant to file a new successive motion to vacate judgment and sentence based on the newly discovered information in the report released by Office of the Inspector General, U.S. Dept. Of Justice, The FBI Laboratory: An Investigation into Laboratory Practices and Alleged Misconduct in Explosive-Related and Other Cases (1997); receded from on other grounds, Guzman v. State, 868 So.2d 498 (Fla. 2003). The State takes issue with that fact and argues that "To the extent that further discussion is necessary, reports similar in character to this one have not been considered to be
5Undersigned counsel was appointed to this case less thanthree weeks ago. He reviewed the case and raised what he considered to be viable issues. Undersigned counsel raised theseissues in good faith, and any insinuation by the State to thecontrary is both uncalled for and untrue.
-4-
newly discovered evidence. Trepal v. State, 846 So.2d 405(Fla. 2003). FN8 The report in Trepal contained information that actually concerned the case before the court. Trepal, 846 So.2d at 409. That is certainly not the case here." (Answer at 14).
The State is mistaken as to what Trepal involved and its implications. The relevant issue argued in Trepal, as it relates to the case at bar, concerned the investigation into fraud at the FBI Laboratory and specifically the reported findings. See, Office of the Inspector General, U.S. Dep’t of Justice, The FBI Laboratory: An Investigation into Laboratory Practices and Alleged Misconduct in Explosive-Related and Other Cases (1997). Trepal’s case was one of those investigated and this Court remanded his case while on appeal to allow Trepal to file a postconviction motion in the circuit court to address the relevant claims. A full evidentiary hearing was held on Trepal’s motion. Although Trepal’s claim was ultimately denied, Trepal, 846 So.2d at 409, this Court did not hold that the report was not newly discovered evidence as implied by the State in its argument. Significantly, as noted above, this Court remanded for an evidentiary hearing on the matters in the report that related to Trepal. The same should be done in Mr. Johnston’s case with regard to the type of testing that was conducted and thereafter questioned in the National Academy of Sciences report, Strengthening Forensic Science in the United State: A Path
-5-
Forward, http://www.nap.edu/catalog/12589.html, Prepublication Copy.
ARGUMENT III
THE TRIAL COURT ERRED IN DENYING MR. JOHNSTON’S REQUEST
FOR FORENSIC TESTING RESULTING IN A VIOLATION OF MR.
JOHNSTON’S RIGHTS TO DUE PROCESS UNDER BOTH THE U.S.
AND FLORIDA CONSTITUTIONS.
The circuit court and the State have both misapprehended the value of the forensic testing requested by Mr. Johnston. The State quotes and champions the circuit court’s finding that "there is no reasonable probability that the results of additional forensic testing would exonerate Mr. Johnston of the crime (Answer at 16). In doing so, the State ignores the fact that other than the aforementioned conclusory statement, the circuit court provides no rationale for the basis of its denial.
A review of the record reveals just how important the forensic evidence was to the State’s case. The State’s closing argument, for example, belies the State’s current claim that the forensic evidence and any testing of it would not have any bearing on Mr. Johnston’s case, much less tend to exonerate him:
Now, Mr. Wolfe mentioned to you that much of theState’s case is based on circumstantial evidence. I would agree that a good deal of the State’s caseis based on circumstantial evidence.
(T. 958). * * *
-6-
When Mr. Wolfe has talked to you a little bit
about the officers who got to the scene and that Mr.
Johnston was there, from listening to Mr. Wolfe’s
argument, I suspect that he wants you to believe that
at that time the officers decided that David Johnston
was there, that he had made a few minor contradictions
in his statements and that they decided to arrest him.
Well, I would ask you to carefully consider the
evidence and what the officers knew when they got
there. When the officers first arrived on scene they
didn’t have any reason to suspect David Johnston.
He was the person that called the 911 number and
reported it at that point in time. They didn’t have any
reason to look at him and think that he was the
suspect.
It was the physical evidence they found at the
scene and the stories that Mr. Johnston had told them
that aroused their suspicions at that time and what did
Mr. Johnston do?
(T. 959).
* * *
Now, what else did the officers notice at thescene?
The officers also noticed some scratch marks on
Mr. Johnston’s face. They asked him if he had been in
any arguments or anything earlier in the evening and he
hadn’t and that was some good hard evidence the officer
saw at the scene that aroused their suspicions about
Mr. Johnston.
(T. 960-61).
* * *
What else did the officers know before they madethe arrest?
The officers had investigated the outside of the
scene and they found some footprints outside by the
front kitchen window. That was another piece of
evidence that they had.
-7-
They compared that with the shoes of Mr. Johnstonat that point in time and the treadwear on his shoesseemed to match the footprints they saw outside thewindow which would lead the officers to believe that David Eugene Johnston broke the front window to MaryHammond’s apartment and Mr. Johnston in his initialstatements to the police never mentioned him standingaround that front window to the apartment.6
(T. 962).
* * *
Mr. Wolfe wants you to believe that whoever thereal murderer is, their fingerprints are on the cokecan but no where (sic) else in the apartment.
If you will remember the testimony of OfficerHietchew, the fingerprints are not always left whensomeone touches an object.
All right. Fingerprints are sometimes left. Thereare certain factors that come into consideration. The fingerprints last for periods of time.
It’s just as consistent that whoever bought thatcoke can, if Miss Hammond bought it at the grocerystore and a bagboy touched it and put it in her car.It’s just as consistent as being the real murderers.
There is no way of knowing who those fingerprints
6 Mr. Johnston has requested testing and examination ofthese footprints. Plaster casts are still in evidence at theOrlando Police Department.
Interestingly, the State also had Terrel Kingery testifyregarding pattern evidence relating to Mr. Johnston’s shoes (T.740-52). He received plaster casts, a pair of shoes, andphotographs of shoe tracks, among other things (T. 742).Subsequently, he compared the prints and expressed the opinionthat Mr. Johnston’s left shoe could have made the print (T. 745).Kingery described the process he utilized as inking the shoes,putting the shoes on his feet (not the same size as Mr. Johnston)and then personally making the prints. He admitted the shoes had already been tested for blood and that he did not use the samesoil as that at the crime scene.
-8-
belong to.7
(T. 982).
* * *
That happened during a violent struggle. Thathappened when Mary Hammond was fighting for her life.That happened when Mary Hammond was fighting for herlife. That happened when Mary Hammond was scratchingand clawing at David Eugene Johnston when she scratchedhis face and his neck and she ripped that chain fromhis neck and then it lodged in her hair.8
(T. 986)(emphasis added).
* * *
There is no evidence that anybody else was in thatapartment except David Eugene Johnston and I would ask you to return a verdict that speaks the truth becausethat’s what a trial is.
(T. 989)(emphasis added).
For the State to now advance and persist in its argument
that somehow the forensic evidence is irrelevant to this case is
baseless and without merit. At trial, the State relied
extensively upon the forensic evidence to establish that Mr.
Johnston was the one and only assailant of Mary Hammond and to
7 Gene Hietchew testified that fourteen latent prints hadbeen lifted at the crime scene of which four were usable (T.681). The prints did not match Mary Hammond, Kevin Williams, orDavid Johnston (T. 682). However, the police failed to comparethe prints of Jose Gutierrez who had been observed within hoursof the crime sitting in the driveway looking as if he werespoiling for a fight. Mr. Johnston has requested the opportunityto compare those fingerprints.
8 The fingernail clippings containing flesh and blood arestill in the possession of Orlando Police Department.
-9-
disprove his assertion that she had already been attacked prior to his arrival.
In Mr. Johnston’s case the value of the testing is heightened by the State’s reliance on the contradictions in his statements, Mr. Johnston’s profound mental illness, brain damage and the fact he operates at a mental age of 6.6 years to 11.8 years.9 Mentally challenged individuals such as Mr. Johnston often have difficulty remembering events and/or recounting them accurately. This inability heightens the risk of wrongful conviction and the need for forensic testing. When considered in conjunction with the newly discovered evidence claim that the testing procedures used in capital cases such as Mr. Johnston’s have been exposed as oftentimes fraught with error, it becomes glaringly apparent that Mr. Johnston’s case requires an independent forensic review of the evidence by his own forensic experts.
Additional testing of the evidence listed above is critical to Mr. Johnston’s claim of innocence, and would in no way harm the State. It would be a violation of due process for Mr. Johnston to be denied access to independent forensic testing in this case. See Osborne v. District Attorney’s Office, 521 F.3d 1118 (9th Cir. 2008), cert.granted, (currently pending) District
9 A neuropsychological evaluation conducted on May 5, 2009revealed the mental age cited.
-10-
Attorney’s Office v. Osborne (U.S. Sup. Ct., Case No. 08-6). Clearly, the requested testing should be allowed and relief should issue.
ARGUMENT IV
THE CLEMENCY PROCESS AND THE MANNER IN WHICH IT WAS DETERMINED THAT MR. JOHNSTON SHOULD RECEIVE A DEATH WARRANT ON APRIL 20, 2009, WAS ARBITRARY AND CAPRICIOUSAND IN VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS.
In opposing this claim, the State relies on the fact that Mr. Johnston had a clemency proceeding in 1987 (Answer at 19). The State fails to address Mr. Johnston’s argument that the process that occurred in 1987 before Mr. Johnston’s life history was fully developed cannot be the "fail safe" that is envisioned by the United States Supreme Court. See Harbison v. Bell, – U.S.
– (April 1, 2009).
The State also asserts that Mr. Johnston’s argument that collateral counsel was precluded from seeking clemency until Harbison was decided "makes no sense". (Answer at 20). Perhaps the State has somehow overlooked the fact that in Marek v. State, the State represented to this Court, "For the Court’s benefit, it should be noted, first that Mr. McClain has asserted he will not
have adequate time to properly litigate Marek‘s case, however, in
spite of the state statute barring CCRC and registry appointed
counsel from handling clemency, he will devote his time to the
preparation of a clemency application. See Sections 27.51(5)(a);
-11-
27.511(9); and 27.5303(4), Fla. Statutes." (Marek v. State, Case No. 09-765, April 30, 2009 Answer Brief at 45,)(emphasis added). Mr. Johnston submits that relief is warranted.
ARGUMENT VI
BECAUSE OF THE INORDINATE LENGTH OF TIME THAT MR. JOHNSTON HAS SPENT ON DEATH ROW, ADDING HIS EXECUTIONTO THAT PUNISHMENT WOULD CONSTITUTE CRUEL AND UNUSUAL PUNISHMENT IN VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, ANDBINDING NORMS OF INTERNATIONAL LAW.
The State asserts with bold emphasis that Mr. Johnston "cannot now contend that his punishment has been illegally prolonged because the delay in carrying out his sentence is in large part due to his own actions in challenging his conviction and sentence." (Answer at 27-28)(emphasis in original). In making this statement, the State neglects to address the fact that Mr. Johnston has been eligible for execution since 1999, when his first round of postconviction appeals were exhausted in state and federal court.10 Thus, the delay in carrying out Mr. Johnston’s execution is not attributable to him.
CONCLUSION
Based upon the record and his arguments, Mr. Johnston respectfully urges the Court to reverse the lower court, order a
10The fact that successive postconviction motions do notprevent a warrant from being signed is evident from the case ofMarek v. State, where Marek had a pending successive 3.851 motionwhen the Governor signed his warrant on April 20, 2009.
-12- ___________________________
new trial and/or resentencing, impose a sentence of life imprisonment, and/or remand for an evidentiary hearing.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing has been furnished by electronic transmission and U.S. Mail, postage prepaid, to Kenneth S. Nunnelley, Office of the Attorney General, 444 Seabreeze Blvd., 5th Floor, Daytona Beach, FL 32118 on May 15, 2009.
CERTIFICATE OF FONT
This is to certify that this Reply Brief has been produced in a 12 point Courier type, a font that is not proportionately spaced.
D. TODD DOSS Florida Bar No. 0910384 725 Southeast Baya DriveSuite 102 Lake City, FL 32025-6092Telephone (386) 755-9119Facsimile (386) 755-3181
-13-
David Johnston - Florida and DNA testing
THE TRIAL COURT ERRED IN DENYING MR. JOHNSTON’S RULE
3.853 MOTION FOR POSTCONVICTION DNA TESTING.
Pursuant to Fla. R. Crim. P. 3.853, Mr. Johnston filed a motion for postconviction DNA testing before the circuit court.
The motion asserted that:
1. The only scientific evidence linking Mr.Johnston to the crime was the presence of blood on him.The State emphasized this evidence throughout Mr.Johnston’s trial. Officer Stickley testified that when she interviewed Mr. Johnston at the crime scene, she noticed a red stain on his right tennis shoe and red dots on his right bicep (T. 498). Officer Kenneth Roberts testified that he observed brown colored splatters on Mr. Johnston’s tennis shoe, socks and arm, which appeared to be blood (T. 507). Officer Candalaria testified that he observed speckles of blood on Mr. Johnston’s left bicep, his left leg, his socks, and his shoe laces (T. 527-28). Investigator Richard Dupuis testified that he was asked by other officers to look at Mr. Johnston’s clothing and render an opinionas to whether there were any bloodstains on the clothing (T. 538).1 After explaining the concept of bloodstain analysis to the jury, Dupuis stated the he observed a reddish stain on Mr. Johnston’s right sockand that the stain projected in a downward motion. He also observed a dark stain on Mr. Johnston’s shoes, as well as a single red stain on the groin area of his shorts (T. 540). Dupuis then opined, based on his experience and training, that the stains appeared to be blood. He also opined that the clothing was a target for the blood, explaining that the blood was either projected or cast off something else and then came into contact with Mr. Johnston’s clothing (T. 541). Dupuis further stated that the blood was in motion when it came into contact with the clothing since it was not as mear type pattern (T. 542). Officer Ostermeyer testified that he took into evidence Mr. Johnston’s clothing. Additionally, he ran a presumptive bloodtest on the stains on the clothing; the test was positive for blood (T. 641-44). Reactions to the Luminol were also observed on the back of Mr. Johnston’s shirt, his sleeves, his waistband, the front of his shorts, the back pocket area of his shorts, and his right tennis shoe (T. 648). Investigator Mundy testified that during an interview with Mr. Johnston,he noticed a couple of red stains on his clothing (T.780). Forensic serologist Keith Paul testified that he tested Mr. Johnston’s clothing for the presence of blood and determined that there was human blood present on the stretchband of Mr. Johnston’s shorts (T. 854).Paul also conducted tests on the stains found on Mr.
-6
Johnston’s tennis shoes and determined that the stains were human blood (T. 867). Additionally, Paul indicated that there appeared to be minute quantities of blood on submitted fingernails, but he conducted no tests because the amount was insufficient for testing purposes (T. 879).
1 The basis for Dupuis’ expertise was that hehad attended several seminars relating to bloodstains (T. 538-39).
2. Mr. Johnston is innocent of the murder in the instant case. The evidence utilized in convicting him was largely circumstantial. There were no eyewitnessesto the crime nor did Mr. Johnston confess to the murder.
3.853 MOTION FOR POSTCONVICTION DNA TESTING.
Pursuant to Fla. R. Crim. P. 3.853, Mr. Johnston filed a motion for postconviction DNA testing before the circuit court.
The motion asserted that:
1. The only scientific evidence linking Mr.Johnston to the crime was the presence of blood on him.The State emphasized this evidence throughout Mr.Johnston’s trial. Officer Stickley testified that when she interviewed Mr. Johnston at the crime scene, she noticed a red stain on his right tennis shoe and red dots on his right bicep (T. 498). Officer Kenneth Roberts testified that he observed brown colored splatters on Mr. Johnston’s tennis shoe, socks and arm, which appeared to be blood (T. 507). Officer Candalaria testified that he observed speckles of blood on Mr. Johnston’s left bicep, his left leg, his socks, and his shoe laces (T. 527-28). Investigator Richard Dupuis testified that he was asked by other officers to look at Mr. Johnston’s clothing and render an opinionas to whether there were any bloodstains on the clothing (T. 538).1 After explaining the concept of bloodstain analysis to the jury, Dupuis stated the he observed a reddish stain on Mr. Johnston’s right sockand that the stain projected in a downward motion. He also observed a dark stain on Mr. Johnston’s shoes, as well as a single red stain on the groin area of his shorts (T. 540). Dupuis then opined, based on his experience and training, that the stains appeared to be blood. He also opined that the clothing was a target for the blood, explaining that the blood was either projected or cast off something else and then came into contact with Mr. Johnston’s clothing (T. 541). Dupuis further stated that the blood was in motion when it came into contact with the clothing since it was not as mear type pattern (T. 542). Officer Ostermeyer testified that he took into evidence Mr. Johnston’s clothing. Additionally, he ran a presumptive bloodtest on the stains on the clothing; the test was positive for blood (T. 641-44). Reactions to the Luminol were also observed on the back of Mr. Johnston’s shirt, his sleeves, his waistband, the front of his shorts, the back pocket area of his shorts, and his right tennis shoe (T. 648). Investigator Mundy testified that during an interview with Mr. Johnston,he noticed a couple of red stains on his clothing (T.780). Forensic serologist Keith Paul testified that he tested Mr. Johnston’s clothing for the presence of blood and determined that there was human blood present on the stretchband of Mr. Johnston’s shorts (T. 854).Paul also conducted tests on the stains found on Mr.
-6
Johnston’s tennis shoes and determined that the stains were human blood (T. 867). Additionally, Paul indicated that there appeared to be minute quantities of blood on submitted fingernails, but he conducted no tests because the amount was insufficient for testing purposes (T. 879).
1 The basis for Dupuis’ expertise was that hehad attended several seminars relating to bloodstains (T. 538-39).
2. Mr. Johnston is innocent of the murder in the instant case. The evidence utilized in convicting him was largely circumstantial. There were no eyewitnessesto the crime nor did Mr. Johnston confess to the murder.
2 There was no fingerprint evidence connecting Mr. Johnston to the crime.
3 Additionally, it was Mr.Johnston who called 911 upon finding the victim, who informed the victim’s granddaughter of what had occurred, and who stayed until the police arrived and made a full report as to how he came to find the victim. Clearly, the presence of blood on Mr. Johnston was the primary factor in obtaining a conviction. If DNA testing were to reveal that the purported blood on Mr. Johnston did not belong to the victim, he would be exonerated of the crime.
2 Mr. Johnston has always maintained hisinnocence.
3 There were, however, fingerprints from other individuals on the items tested by the State.
3. The specific evidence Mr. Johnston seeks to be tested is as follows:
a. Mr. Johnston’s tennis shoes; b. Mr. Johnston’s socks; c. Mr. Johnston’s shorts; d. Fingernail clippings.4
4Undersigned counsel orally amended the motion to include hair and debris folds currently held by the Orlando Police
-7
4. The aforementioned evidence in this case was not previously tested for DNA. 5. The last known location for the evidence was the Orlando Police Department. The evidence was originally obtained by the Orlando Police Department during its investigation of this case.
(May 6, 2009 Rule 3.853 Motion for Postconviction DNA Testing).
In its order denying Mr. Johnston’s motion, the circuit
court stated:
To be entitled to DNA testing, Mr. Johnston must be able to demonstrate that the test results would exonerate him or mitigate the sentence he received. See Rule 3.853(b)(3) and (4). However, he fails to establish that the testing would exonerate him even if the results showed that the blood did not belong to the victim and the material under the victim’s fingernails did not belong to him.
During his January 24, 1984 statement to police, Mr. Johnston admitted holding the victim’s body. Therefore, it was reasonable to expect her blood to be on his clothing, and the issue at trial was not whose blood it was but how it got there. Furthermore, there was other incriminating evidence against Defendant, including scratches on his face, discrepancies in his various statements, the discovery of his bloodstained watch on a bathroom counter in the victim’s house, and the fact that a butterfly pendant he was seen wearing was entangled in the victim’s hair. Additionally, Mr.Johnston admitted taking personal items from the victim’s house, allegedly as a memento of the victim.
Based upon the totality of the evidence presented at trial against Mr. Johnston, this Court therefore concludes that even if the results of DNA testing were to show that the blood on Mr. Johnston’s clothes did not belong to the victim and the material under the victim’s fingernails did not belong to him, there is no reasonable probability this result would exonerate him of the crime.
Department as evidence to be examined and tested. -8
(May 8, 2009 Order Denying Motion for Postconviction DNA Testing, at 2)(footnotes omitted).
Mr. Johnston submits that the circuit court’s finding, that there is no reasonable probability that DNA testing could exonerate him of the crime, is erroneous. First, the circuit court relied on the fact that Mr. Johnston at one point admitted to the police that he held the victim’s body, thus it was reasonable to expect there to be blood on him. However, the circuit court ignores the fact that Mr. Johnston is mentally ill,5 that he was recognized as such at the time of trial,6 and thus his many contradictory statements to the police are simply
5Among other mental issues, Mr. Johnston has been diagnosed as suffering from schizophrenia (R. 1140, 1178).
6On direct appeal, this Court affirmed the denial of Mr.Johnston’s Faretta claim, stating,
The trial judge made the proper inquiry in this case and correctly concluded that the desired waiver of counsel was neither knowing nor intelligent, in part, because of Johnston’s mental condition. In fact the court’s order denying Johnston’s motion for self-representation and counsel’s motion to withdraw specifically cited Johnston’s age, education, and
reports of psychiatrist and past admissions into mental hospitals. Clearly, the trial court was correct in concluding that Johnston would not receive a fair trial without assistance of counsel.
Johnston v. State, 497 So. 2d 863 (Fla. 1986)(emphasis added).
unreliable.7 Here, the circuit court has erroneously decided to rely on one of many contradictory statements of a mentally ill individual8 rather than order scientific testing which could conclusively demonstrate whether the blood on Mr. Johnston belonged to the victim, and whether the scrapings under the victim’s fingernails match the DNA of Mr. Johnston.9
Additionally, the circuit court’s determination that there is other incriminating evidence does not negate the fact that DNA testing could exonerate Mr. Johnston. For example, the circuit court relies on the fact that Mr. Johnston had scratches on his face. But it ignores the fact that DNA testing of the scrapings from the victim’s fingernails could establish that the scratches didn’t come from the victim.10 Further, as has been discussed
7In one statement to the police, Mr. Johnston related that he did not touch the victim (T. 494). In another statement, he did touch the victim (T. 823). In one statement to the police,Mr. Johnston related that the victim was dead when he found her
(T. 494). In another statement, she was alive and appeared to betrying to speak to him (T. 845).
8In recent years, there have been multiple instances where DNA evidence has been utilized to exonerate a convicted mentally ill defendant. In 2007, a schizophrenic named Anthony Capozziwas exonerated through DNA testing after spending 22 years in prison for rape.
9Moreover, the circuit court’s logic is flawed. While the circuit court has chosen to accept certain statements by Mr.Johnston as true, the court ignores other statement favorable to Mr. Johnston, such as the fact that he was emphatically consistent in his denial of the victim’s murder (T. 845).
10Mr. Johnston stated at one point that he got the scratches from his puppy.
-10
above, the court’s reliance on the discrepancies in Mr. Johnston’s statements simply verifies that DNA testing should be
valued above the rants of a schizophrenic.11
Additionally, the circuit court’s reliance on the wristwatch and butterfly necklace found at the scene is suspect. Again, in typical fashion, Mr. Johnston at various times claimed ownership of the necklace (T. 2346)12, and at other times denied ownership of it (T. 2337). Likewise, Mr. Johnston claimed and disclaimed ownership of the watch (T. 2336, 2346, 2348).
There can be no doubt that DNA testing could exonerate Mr. Johnston. There were no eyewitnesses to the crime nor did Mr. Johnston confess to the murder. There was no fingerprint evidence connecting Mr. Johnston to the crime.13 Clearly, the presence of blood on Mr. Johnston was the primary factor in obtaining a conviction. The absence of his DNA under the victim’s fingernails combined with the absence of the victim’s blood on Mr. Johnston would establish his innocence and would demonstrate that Mr. Johnston’s inconsistent rants are nothing more than that. Mr. Johnston submits that this case should be
11Certainly, the court didn’t take at face value Mr.Johnston’s prior claim that he had been attacked by Judge Powell in chambers following his evidentiary hearing.
12At one point, Mr. Johnson stated that he gave the necklace to the victim (R. 2353).
13There were, however, fingerprints from other individuals on the items tested by the State.
remanded for DNA testing in accordance with Fla. R. Crim. P.
3.853.
ARGUMENT II
NEWLY DISCOVERED EVIDENCE HAS REVEALED THAT MR. JOHNSTON WAS CONVICTED BASED UPON INFIRM FORENSIC EVIDENCE IN VIOLATION OF THE FIFTH, EIGHTH, ANDFOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION.
“Over the last two decades, advances in some forensic science disciplines, especially the use of DNA technology, have demonstrated that some areas of forensic science have great potential to help lawenforcement identify criminals. Many crimes that may have gone unsolved are now being solved because forensic science is helping identify the perpetrators.
Those advances, however, also have revealed that, in some cases, substantive information and testimony based on faulty forensic science analyses may have contributed to wrongful convictions of innocent people.This fact has demonstrated the potential danger of giving undue weight to evidence and testimony derived from imperfect testing and analysis. Morever, imprecise or exaggerated expert testimony has sometimes contributed to the admission of erroneous or misleading evidence.
Strengthening Forensic Science in the United States: A Path
Forward (free Executive Summary), S-3,
http://www.nap.edu/catalog/12589.html, last viewed May 5, 2009.
The preceding admonition was recently released February 18,
2009 in the executive summary of the pending report produced by
the National Academy of Sciences after conducting a study on
forensic sciences as directed by the U.S. Congress. The study
panel consisted of members of the forensic science community,
members of the legal community, and a diverse group of
scientists. “Experts who provided testimony included federal agency officials; academics and research scholars; private consultants; federal state and local law enforcement officials; scientists; medical examiners; a coroner; crime laboratory officials from the public and private sectors; independent investigators; defense attorneys; forensic science practitioners; and leadership of professional and standard setting organizations.” (internal citations omitted) Id. at S-2.
The end product of the Committee’s painstakingly thorough work was a comprehensive report. This report first became available when released by the Committee on Identifying the Needs of the Forensic Sciences Community on February 18, 2009. The final report constitutes newly discovered evidence that the “scientific” evidence used to convict Mr. Johnston is the result of methods with questionable and untested underlying scientific principles, in violation of Mr. Johnston’s rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution. This Court has recognized that “reports” issued by governmental or other bodies that affect the integrity of a defendant’s trial or penalty phase can constitute newly discovered evidence. See, Trepal v. State, 846 So.2d, 405, 409410 (Fla. 2003)(relinquishing jurisdiction for defendant to file a new successive motion to vacate judgment and sentence based on the newly discovered information in the report released by Office
of the Inspector General, U.S. Dept. Of Justice, The FBI
Laboratory: An Investigation into Laboratory Practices and
Alleged Misconduct in Explosive-Related and Other Cases (1997);
receded from on other grounds, Guzman v. State, 868 So.2d 498
(Fla. 2003).
The Committee made a number of specific recommendations for
improving the many deficiencies within the forensic science
community. Issues studied that are relevant to Mr. Johnston’s
case included pattern evidence such as fingerprints, footwear
impressions and bloodstain pattern analysis. In regards to these
types of analysis the study found that:
Often in criminal prosecutions and civil litigation, forensic evidence is offered to support conclusions about “individualization” (sometimes referred to as“matching” a specimen to a particular individual or other source) or about classification of the source of the specimen into one of several categories. With the exception of nuclear DNA analysis, however, no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and specific individual or source. In terms of scientific basis, the analytically based disciplines generally hold a notable edge over disciplines based on expert interpretation.Id. at S-5.
* * *
The simple reality is that the interpretation of forensic evidence is not always based on scientific studies to determine its validity. This is a serious problem. Although research has been done in some disciplines, there is a notable dearth of peer-reviewed, published studies establishing the scientific bases and validity of many forensic methods. Id. at S
6.
-14
* * *
The study panel then went on to suggest the need for
research to establish limits and measures on performance to
prevent overreaching. The panel stated:
The development of such research programs can benefit significantly from other areas, notably from the large body of research on the evaluation of observer performance in diagnostic medicine and from the findings of cognitive psychology on the potential forbi as and error in human observers. FN8 The findings offorensic experts are vulnerable to cognitive and contextual bias. See, e.g. I.E. Dror, D. Charlton, and
A.E. Peron. 2006. Contextual information renders experts vulnerable to making erroneous identifications. Forensic Science International 156:74, 77. (“Our studyshows that it is possible to alter identification decisions on the same fingerprint, solely by presenting it in a different context.”); I.E. Dror and D.Charlton. 2006. Why experts make errors. Journal of Forensic Identification 56(4):600; Giannelli, supra note 6, pp. 220-222. Unfortunately, at least to date, there is no good evidence to indicate that the forensic science community has made a sufficient effort to address the bias issue; thus, it is impossible for the committee to fully assess the magnitude of the problem.Id. at S-6.14
* * *
The law’s greatest dilemma is its heavy reliance on forensic evidence, however, concerns the question of whether ------ and to what extent ------ there is science in any given forensic science discipline. Id.at S-7.
14 Because of these issues, and others, the first recommendation of the report is the formation of an independent federal entity: the National Institute of Forensic Sciences. Id. at S-14. This is necessary because the current “forensic science enterprise lacks the necessary governance structure to pull itself up from its current weaknesses.” Id. at S-12.
-15
* * *
But because accused parties in criminal cases are convicted on the basis of testimony from forensic science experts, much depends upon whether the evidence offered is reliable. Furthermore, in addition to protecting innocent persons from being convicted of crimes that they did not commit, we are also seeking to protect society from persons who have committed criminal acts. Law enforcement officials and the members of society they serve need to be assured that forensic techniques are reliable. Therefore, we must limit the risk of having the reliability of certain forensic science methodologies judicially certified before the techniques have been properly studied and their accuracy verified by the scientific community.Id. at S-9.
In Mr. Johnston’s case, questionable expert testimony was
utilized against him. For example, testimony reveals that
Investigator Dupius testified as to blood spatter. Interestingly,
Investigator Dupius was exclusively trained by the now
discredited Judith Bunker. Ms. Bunker was revealed to have
converted herself into an expert in bloodstain pattern analysis
from a brief four hour workshop conducted by Mr. Herbert
MacDonnell in Birmingham, Alabama. With only this minimal
experience Ms. Bunker launched a career instructing law
enforcement upon the complex science of blood-stain pattern
analysis.15
Investigator Dupius testified that he observed a reddish
stain on Mr. Johnston’s right sock and that the stain projected
15 This claim was raised and rejected as to Ms. Bunker’s
lack of credentials in Johnston v. State, 708 So.2d 590 (Fla.
1998).
in a downward motion. He also observed a dark stain on Mr. Johnston’s brown shoes, as well as a single red stain on the groin area of his shorts (R. 540). Dupius then admitted that he conducted no testing as to whether blood was actually on the socks, although he surmised that based on his training and experience it was blood (R 541).
Dupius further testified that the blood was projected or was cast-off and was in motion when it came into contact with Mr. Johnston’s clothing since it was not a smear pattern (R. 541-42). Investigator Dupius also related that he observed several patterns within Mary Hammond’s home, however, he did not mention any of it being tested. Based upon these observations he related that the three arches of staining on the west wall were cast-off stains because a bloody object had been in motion towards the right side of the body (R. 545). He also opined that the killer was right-handed (R. 553).
Officer Ostermeyer also testified regarding blood evidence supposedly upon Mr. Johnston’s clothing (R. 641-44). He completed presumptive testing and found Mr. Johnston’s clothing tested positive for the presence of blood. The areas reacting to the Luminol were the back of the Mr. Johnston’s shirt, his sleeves, his waistband, the front of his shorts, the back pocket area of his shorts, and his right shoe (R. 648-49). The officer admitted the test was not conclusive and can give false positives
(R. 651-53).
Blood spatter is the type of evidence that is listed as
suspect within the study conducted by the National Academy of
Sciences. The study relates:
However, many sources of variability arise with the production of bloodstain patterns, and their interpretation is not nearly as straightforward as the process implies. Interpreting and integrating bloodstain patterns into a reconstruction requires, at a minimum:
* an appropriate scientific education;* knowledge of the terminology employed(e.g., angle of impact, arterialspurting, back spatter, castoffpattern);* an understanding of limitations of the measurement tools used to make bloodstain pattern measurements (e.g.,calculators, software, lasers,protractors);* an understanding of applied mathematics and the use of significant figures;* an understanding of the physics of fluid transfer;* an understanding of pathology of wounds;and * an understanding of the general patterns blood makes after leaving the human body.
Strengthening Forensic Science in the United State: A Path
Forward, http://www.nap.edu/catalog/12589.html, Prepublication
Copy, at 5-38.
None of these potential sources of variability were explored
in Mr. Johnston’s case, including the fact Investigator Dupius
received virtually no meaningful instruction in this complex
science. Mere conclusory allegations were made with no
meaningful cross-examination or adversarial testing. The reliability necessary to sustain the conviction and impending execution is clearly lacking.
Gene Hietchew testified that fourteen latent prints had been lifted at the crime scene of which four were usable (R. 681). The prints did not match Mary Hammond, Kevin Williams, or David Johnston (R. 682). However, the police failed to compare the prints of Jose Gutierrez who had been observed within hours of the crime sitting in the driveway looking as if he were spoiling for a fight.
The State also had Terrel Kingery testify regarding pattern evidence relating to Mr. Johnston’s shoes (R. 740-52). He received plaster casts, a pair of shoes, and photographs of shoe tracks, among other things (R. 742). Subsequently, he compared the prints and expressed the opinion that Mr. Johnston’s left shoe could have made the print (R. 745). Kingery described the process he utilized as inking the shoes, putting the shoes on his feet (not the same size as Mr. Johnston) and then personally making the prints. He admitted the shoes had already been tested for blood and that he did not use the same soil as that at the crime scene.
Within the National Academy of Sciences report footwear pattern evidence is specifically discussed. “Class characteristics of footwear and tires result from repetitive
controlled processes that are typically mechanical, such as those used to manufacture items in quantity. Although defined similarly by various authors, Bodziak describes footwear class characteristics as ‘an intentional or unavoidable characteristic that repeats during the manufacturing process and is shared by one or more other shoes.’” (footnote omitted), Strengthening Forensic Science in the United State: A Path Forward, http://www.nap.edu/catalog/12589.html, Prepublication Copy, at 5
15.
The study goes on to consider individual wear characteristics by stating, “For footwear, Bodziak writes that ‘individual identifying characteristics are characteristics that result when something is randomly added to or taken away from a shoe outsole that either causes or contributes to making that shoe outsole unique.’” (footnote omitted), Id.
In Mr. Johnston’s case these differences and methods of interpretation were either not used or not brought out in testimony. Simply testifying to a match is not enough. The aforementioned guidelines must be adhered to in order to provide the kind of reliability required to convict and execute a man.
The report further calls into question the terminology used to describe testing results. Many terms that are utilized to describe the degrees of association between evidentiary material and particular people or objects, e.g., “match,” “consistent
with,” “identical,” “similar in all respects tested,” and cannot
be excluded as the source of.” Id. at S-15. The Committee
concluded that “[t]he use of such terms can and does have a
profound effect on how the trier of fact in a criminal or civil
matter perceives and evaluates scientific evidence.” Id.
When analyzing the significant advances in DNA technology
and its immense importance to law enforcement to law enforcement
the Committee observed that DNA advances have:
revealed that, in some cases, substantive information and testimony based on faulty forensic science analyses may have contributed to wrongful convictions of innocent people. This fact has demonstrated the potential danger of giving undue weight to evidence and testimony derived from imperfect testing and analysis. Moreover, imprecise or exaggerated expert testimony has sometimes contributed to the admission of erroneous or misleading evidence. NAS Report at S
13. The information, analysis, and ultimate conclusions contained in the NAS Report reveal that “scientific” evidence produced by methods with questionable and untested underlying scientific principles is being used to convict defendants.
The use of this questionable “scientific” evidence, coupled with the utter lack of standardized reporting and terminology in forensic disciplines renders both the conviction as well as the death sentence unreliable. Under the Eighth Amendment, the death penalty must be imposed fairly, and with reasonable consistency, or not at all. Furman v. Georgia, 408 U.S. 238, 310 (1972)(per
curiam). Furman stands for the proposition most succinctly explained by Justice Stewart in his concurring opinion: “The Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be . . . wantonly and . . . freakishly imposed” on a “capriciously selected random handful” of individuals. Id. at 310 (Stewart, J. concurring). Differences in terminology, for example, could mean the difference between life and death: two experts in the same field of forensic science may testify in two different cases and use differing terminology to describe the same results so that one defendant is convicted or sentenced to death on the basis of that evidence and the other is not. The imposition and carrying out of the death penalty in cases in which untested and unreliable “scientific” evidence is used to convict defendants also constitutes cruel and unusual punishment. When the myriad of problems with so-called “scientific” evidence are considered together in analyzing its ability to produce a reliable result, the conclusion is inescapable: as Justice Brennan wrote in his concurring opinion in Furman, “it smacks of little more than a lottery system.” Furman, 408 U.S. at 293 (Brennan, J., concurring). The use of “scientific” evidence produced by methods of questionable and untested underlying scientific principles cannot “assure consistency, fairness, and rationality” and cannot “assure that sentences of death will not
be ‘wantonly’ or ‘freakishly’ imposed.” Proffitt v. Florida, 428
U.S. 242, 259-260 (1976).
Mr. Johnston submits that this issue should be remanded for an evidentiary hearing and thereafter, Rule 3.851 relief should issue.
ARGUMENT III
THE TRIAL COURT ERRED IN DENYING MR. JOHNSTON’S REQUEST
FOR FORENSIC TESTING RESULTING IN A VIOLATION OF MR.
JOHNSTON’S RIGHTS TO DUE PROCESS UNDER BOTH THE U.S.
AND FLORIDA CONSTITUTIONS.
Mr. Johnston was charged with the murder of Mary Hammond and convicted and sentenced to death in June 1, 1984. Numerous articles of evidence were collected and tested by the State of Florida. At trial, the State introduced numerous items of evidence and adduced expert testimony regarding the evidence.
Officer Ostermeyer testified regarding blood evidence supposedly upon Mr. Johnston’s clothing (R. 641-44). He completed presumptive testing and found Mr. Johnston’s clothing tested positive for the presence of blood. The areas reacting to the Luminol were the back of the Defendant’s shirt, his sleeves, his waistband, the front of his shorts, the back pocket area of his shorts, and his right shoe (R. 648-49). The officer admitted the test was not conclusive and gives false positives (R. 65153).
Gene Hietchew testified that fourteen latent prints had been
lifted at the crime scene of which four were usable (R. 681). The prints did not match Mary Hammond, Kevin Williams, or David Johnston (R. 682). However, the police failed to compare the prints of Jose Gutierrez who had been observed within hours of the crime sitting in the driveway looking as if he were spoiling for a fight.
The State also had Terrel Kingery testify regarding pattern evidence relating to Mr. Johnston’s shoes (R. 740-52). He received plaster casts, a pair of shoes, photographs of shoe tracks, among other things (R. 742). Subsequently, he compared the prints and expressed the opinion that Mr. Johnston’s left shoe could have made the print (R. 745). Kingery described the process he utilized as inking the shoes, putting the shoes on his feet (not the same size as Mr. Johnston) and then personally making the prints. He admitted the shoes had already been tested for blood and that he did not use the same soil as that at the crime scene.
Mr. Johnston has had numerous attorneys over the years and been effectively without counsel for the last couple of years. None of these attorneys did any independent testing. Indeed, many of the testing procedures available now did not exist during the time period when many of these attorneys represented Mr. Johnston or the science and protocols have since progressed to allow a greater degree of reliability. See, Claim II, supra.
When considered in conjunction with the newly discovered evidence claim that the testing procedures used in capital cases such as Mr. Johnston’s have been exposed as often times fraught with error, it becomes glaringly apparent that Mr. Johnston’s case requires an independent forensic review of the evidence in by his own forensic experts.
The trial court clearly erred when it found that, “As this Court concluded in the Order Denying Motion for Postconviction DNA Testing, there is no reasonable probability that the results of additional forensic testing would exonerate Mr. Johnston of the crime.” Order Denying Motion to Produce Evidence for Forensic Testing and Request for Hearing at 1.
The forensic evidence in this case was circumstantial in nature.16 Mr. Johnston has always maintained his innocence in this case. Mr. Johnston’s postconviction forensic experts will review the facts and evidence in this case and conduct forensic testing to utilize the most modern testing and science to ascertain the validity of the prior testing conducted 25 years ago. Additional testing of the evidence listed above is critical to Mr. Johnston’s claim of innocence, and would in no way harm the State. It would be a violation of due process for Mr. Johnston to be denied access to independent forensic testing in
16 Mr. Johnston adopts and re-alleges the argument regarding the exculpatory nature of the proposed testing as argued in ClaimI, supra.
this case.
The U.S. Court of Appeals for the Ninth Circuit recently
found that a state prisoner has a right to postconviction access
to biological evidence used to convict him. Osborne v. District
Attorney’s Office, 521 F.3d 1118 (9th Cir. 2008), cert.granted,
(currently pending) District Attorney’s Office v. Osborne (U.S.
Sup. Ct., Case No. 08-6). The biological evidence in Osborne
related to DNA testing and was the subject of a civil rights
action filed pursuant to §1983. The State of Alaska had blocked
Osborne’s access to DNA testing.17 In granting Osborne access to
the biological evidence the Ninth Circuit observed that:
The evidence in question can be produced easily and without cost to the State and, if favorable to Osborne, would be strong evidence in support of post-conviction relief. Nonetheless, the State seeks to foreclose such relief by its simple refusal to open the evidence locker . . .
The State supports its position with the argument that the circumstantial and eyewitness evidence in this case is also strong evidence of Osborne’s guilt, and thus granting access is not likely to “further the truthseeking function of our criminal justice system.” As recent history has shown, however, DNA evidence has the capability of refuting otherwise irrefutable inculpatory evidence, and as we have already established this case is no exception.
If the inculpatory evidence has been correctly interpreted, further DNA testing will confirm that Osborne is guilty as charged and convicted. But it remains a very real possibility that further DNAtesting will be exculpatory and may even lead to
17 Mr. Johnston adopts the due process argument within this claim as if fully argued in Claim I as well.
-26
Osborne’s exoneration. In the former case, the State will have lost nothing; indeed, it will gain even more definitive proof of Osborne’s guilt and will be relieved of the burden of further post-conviction litigation. In the latter case, however, Osborne will obviously gain a great deal, as will the State, whose paramount interests are in seeking justice, not obtaining convictions at all costs, and which will then have strong evidence for use in catching and punishing the real perpetrator. Importantly, the State is prejudiced in neither case, and the truth-seeking function of the criminal justice system is furthered in either case. Osborne at 1141.
Osborne, 521 F.3d at 1141. The same holds true in Mr. Johnston’s
case. The minimal amount of time required for DNA and forensic
testing relative to the twenty-six years Mr. Johnston has spent
on Florida’s death row does little, if anything, to prejudice the
State of Florida. However, this requested testing, if the
results are exculpatory, has the potential to save Mr. Johnston’s
life. Clearly, the requested testing should be allowed and
relief should issue.
2 Mr. Johnston has always maintained hisinnocence.
3 There were, however, fingerprints from other individuals on the items tested by the State.
3. The specific evidence Mr. Johnston seeks to be tested is as follows:
a. Mr. Johnston’s tennis shoes; b. Mr. Johnston’s socks; c. Mr. Johnston’s shorts; d. Fingernail clippings.4
4Undersigned counsel orally amended the motion to include hair and debris folds currently held by the Orlando Police
-7
4. The aforementioned evidence in this case was not previously tested for DNA. 5. The last known location for the evidence was the Orlando Police Department. The evidence was originally obtained by the Orlando Police Department during its investigation of this case.
(May 6, 2009 Rule 3.853 Motion for Postconviction DNA Testing).
In its order denying Mr. Johnston’s motion, the circuit
court stated:
To be entitled to DNA testing, Mr. Johnston must be able to demonstrate that the test results would exonerate him or mitigate the sentence he received. See Rule 3.853(b)(3) and (4). However, he fails to establish that the testing would exonerate him even if the results showed that the blood did not belong to the victim and the material under the victim’s fingernails did not belong to him.
During his January 24, 1984 statement to police, Mr. Johnston admitted holding the victim’s body. Therefore, it was reasonable to expect her blood to be on his clothing, and the issue at trial was not whose blood it was but how it got there. Furthermore, there was other incriminating evidence against Defendant, including scratches on his face, discrepancies in his various statements, the discovery of his bloodstained watch on a bathroom counter in the victim’s house, and the fact that a butterfly pendant he was seen wearing was entangled in the victim’s hair. Additionally, Mr.Johnston admitted taking personal items from the victim’s house, allegedly as a memento of the victim.
Based upon the totality of the evidence presented at trial against Mr. Johnston, this Court therefore concludes that even if the results of DNA testing were to show that the blood on Mr. Johnston’s clothes did not belong to the victim and the material under the victim’s fingernails did not belong to him, there is no reasonable probability this result would exonerate him of the crime.
Department as evidence to be examined and tested. -8
(May 8, 2009 Order Denying Motion for Postconviction DNA Testing, at 2)(footnotes omitted).
Mr. Johnston submits that the circuit court’s finding, that there is no reasonable probability that DNA testing could exonerate him of the crime, is erroneous. First, the circuit court relied on the fact that Mr. Johnston at one point admitted to the police that he held the victim’s body, thus it was reasonable to expect there to be blood on him. However, the circuit court ignores the fact that Mr. Johnston is mentally ill,5 that he was recognized as such at the time of trial,6 and thus his many contradictory statements to the police are simply
5Among other mental issues, Mr. Johnston has been diagnosed as suffering from schizophrenia (R. 1140, 1178).
6On direct appeal, this Court affirmed the denial of Mr.Johnston’s Faretta claim, stating,
The trial judge made the proper inquiry in this case and correctly concluded that the desired waiver of counsel was neither knowing nor intelligent, in part, because of Johnston’s mental condition. In fact the court’s order denying Johnston’s motion for self-representation and counsel’s motion to withdraw specifically cited Johnston’s age, education, and
reports of psychiatrist and past admissions into mental hospitals. Clearly, the trial court was correct in concluding that Johnston would not receive a fair trial without assistance of counsel.
Johnston v. State, 497 So. 2d 863 (Fla. 1986)(emphasis added).
unreliable.7 Here, the circuit court has erroneously decided to rely on one of many contradictory statements of a mentally ill individual8 rather than order scientific testing which could conclusively demonstrate whether the blood on Mr. Johnston belonged to the victim, and whether the scrapings under the victim’s fingernails match the DNA of Mr. Johnston.9
Additionally, the circuit court’s determination that there is other incriminating evidence does not negate the fact that DNA testing could exonerate Mr. Johnston. For example, the circuit court relies on the fact that Mr. Johnston had scratches on his face. But it ignores the fact that DNA testing of the scrapings from the victim’s fingernails could establish that the scratches didn’t come from the victim.10 Further, as has been discussed
7In one statement to the police, Mr. Johnston related that he did not touch the victim (T. 494). In another statement, he did touch the victim (T. 823). In one statement to the police,Mr. Johnston related that the victim was dead when he found her
(T. 494). In another statement, she was alive and appeared to betrying to speak to him (T. 845).
8In recent years, there have been multiple instances where DNA evidence has been utilized to exonerate a convicted mentally ill defendant. In 2007, a schizophrenic named Anthony Capozziwas exonerated through DNA testing after spending 22 years in prison for rape.
9Moreover, the circuit court’s logic is flawed. While the circuit court has chosen to accept certain statements by Mr.Johnston as true, the court ignores other statement favorable to Mr. Johnston, such as the fact that he was emphatically consistent in his denial of the victim’s murder (T. 845).
10Mr. Johnston stated at one point that he got the scratches from his puppy.
-10
above, the court’s reliance on the discrepancies in Mr. Johnston’s statements simply verifies that DNA testing should be
valued above the rants of a schizophrenic.11
Additionally, the circuit court’s reliance on the wristwatch and butterfly necklace found at the scene is suspect. Again, in typical fashion, Mr. Johnston at various times claimed ownership of the necklace (T. 2346)12, and at other times denied ownership of it (T. 2337). Likewise, Mr. Johnston claimed and disclaimed ownership of the watch (T. 2336, 2346, 2348).
There can be no doubt that DNA testing could exonerate Mr. Johnston. There were no eyewitnesses to the crime nor did Mr. Johnston confess to the murder. There was no fingerprint evidence connecting Mr. Johnston to the crime.13 Clearly, the presence of blood on Mr. Johnston was the primary factor in obtaining a conviction. The absence of his DNA under the victim’s fingernails combined with the absence of the victim’s blood on Mr. Johnston would establish his innocence and would demonstrate that Mr. Johnston’s inconsistent rants are nothing more than that. Mr. Johnston submits that this case should be
11Certainly, the court didn’t take at face value Mr.Johnston’s prior claim that he had been attacked by Judge Powell in chambers following his evidentiary hearing.
12At one point, Mr. Johnson stated that he gave the necklace to the victim (R. 2353).
13There were, however, fingerprints from other individuals on the items tested by the State.
remanded for DNA testing in accordance with Fla. R. Crim. P.
3.853.
ARGUMENT II
NEWLY DISCOVERED EVIDENCE HAS REVEALED THAT MR. JOHNSTON WAS CONVICTED BASED UPON INFIRM FORENSIC EVIDENCE IN VIOLATION OF THE FIFTH, EIGHTH, ANDFOURTEENTH AMENDMENTS TO THE U.S. CONSTITUTION.
“Over the last two decades, advances in some forensic science disciplines, especially the use of DNA technology, have demonstrated that some areas of forensic science have great potential to help lawenforcement identify criminals. Many crimes that may have gone unsolved are now being solved because forensic science is helping identify the perpetrators.
Those advances, however, also have revealed that, in some cases, substantive information and testimony based on faulty forensic science analyses may have contributed to wrongful convictions of innocent people.This fact has demonstrated the potential danger of giving undue weight to evidence and testimony derived from imperfect testing and analysis. Morever, imprecise or exaggerated expert testimony has sometimes contributed to the admission of erroneous or misleading evidence.
Strengthening Forensic Science in the United States: A Path
Forward (free Executive Summary), S-3,
http://www.nap.edu/catalog/12589.html, last viewed May 5, 2009.
The preceding admonition was recently released February 18,
2009 in the executive summary of the pending report produced by
the National Academy of Sciences after conducting a study on
forensic sciences as directed by the U.S. Congress. The study
panel consisted of members of the forensic science community,
members of the legal community, and a diverse group of
scientists. “Experts who provided testimony included federal agency officials; academics and research scholars; private consultants; federal state and local law enforcement officials; scientists; medical examiners; a coroner; crime laboratory officials from the public and private sectors; independent investigators; defense attorneys; forensic science practitioners; and leadership of professional and standard setting organizations.” (internal citations omitted) Id. at S-2.
The end product of the Committee’s painstakingly thorough work was a comprehensive report. This report first became available when released by the Committee on Identifying the Needs of the Forensic Sciences Community on February 18, 2009. The final report constitutes newly discovered evidence that the “scientific” evidence used to convict Mr. Johnston is the result of methods with questionable and untested underlying scientific principles, in violation of Mr. Johnston’s rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the U.S. Constitution. This Court has recognized that “reports” issued by governmental or other bodies that affect the integrity of a defendant’s trial or penalty phase can constitute newly discovered evidence. See, Trepal v. State, 846 So.2d, 405, 409410 (Fla. 2003)(relinquishing jurisdiction for defendant to file a new successive motion to vacate judgment and sentence based on the newly discovered information in the report released by Office
of the Inspector General, U.S. Dept. Of Justice, The FBI
Laboratory: An Investigation into Laboratory Practices and
Alleged Misconduct in Explosive-Related and Other Cases (1997);
receded from on other grounds, Guzman v. State, 868 So.2d 498
(Fla. 2003).
The Committee made a number of specific recommendations for
improving the many deficiencies within the forensic science
community. Issues studied that are relevant to Mr. Johnston’s
case included pattern evidence such as fingerprints, footwear
impressions and bloodstain pattern analysis. In regards to these
types of analysis the study found that:
Often in criminal prosecutions and civil litigation, forensic evidence is offered to support conclusions about “individualization” (sometimes referred to as“matching” a specimen to a particular individual or other source) or about classification of the source of the specimen into one of several categories. With the exception of nuclear DNA analysis, however, no forensic method has been rigorously shown to have the capacity to consistently, and with a high degree of certainty, demonstrate a connection between evidence and specific individual or source. In terms of scientific basis, the analytically based disciplines generally hold a notable edge over disciplines based on expert interpretation.Id. at S-5.
* * *
The simple reality is that the interpretation of forensic evidence is not always based on scientific studies to determine its validity. This is a serious problem. Although research has been done in some disciplines, there is a notable dearth of peer-reviewed, published studies establishing the scientific bases and validity of many forensic methods. Id. at S
6.
-14
* * *
The study panel then went on to suggest the need for
research to establish limits and measures on performance to
prevent overreaching. The panel stated:
The development of such research programs can benefit significantly from other areas, notably from the large body of research on the evaluation of observer performance in diagnostic medicine and from the findings of cognitive psychology on the potential forbi as and error in human observers. FN8 The findings offorensic experts are vulnerable to cognitive and contextual bias. See, e.g. I.E. Dror, D. Charlton, and
A.E. Peron. 2006. Contextual information renders experts vulnerable to making erroneous identifications. Forensic Science International 156:74, 77. (“Our studyshows that it is possible to alter identification decisions on the same fingerprint, solely by presenting it in a different context.”); I.E. Dror and D.Charlton. 2006. Why experts make errors. Journal of Forensic Identification 56(4):600; Giannelli, supra note 6, pp. 220-222. Unfortunately, at least to date, there is no good evidence to indicate that the forensic science community has made a sufficient effort to address the bias issue; thus, it is impossible for the committee to fully assess the magnitude of the problem.Id. at S-6.14
* * *
The law’s greatest dilemma is its heavy reliance on forensic evidence, however, concerns the question of whether ------ and to what extent ------ there is science in any given forensic science discipline. Id.at S-7.
14 Because of these issues, and others, the first recommendation of the report is the formation of an independent federal entity: the National Institute of Forensic Sciences. Id. at S-14. This is necessary because the current “forensic science enterprise lacks the necessary governance structure to pull itself up from its current weaknesses.” Id. at S-12.
-15
* * *
But because accused parties in criminal cases are convicted on the basis of testimony from forensic science experts, much depends upon whether the evidence offered is reliable. Furthermore, in addition to protecting innocent persons from being convicted of crimes that they did not commit, we are also seeking to protect society from persons who have committed criminal acts. Law enforcement officials and the members of society they serve need to be assured that forensic techniques are reliable. Therefore, we must limit the risk of having the reliability of certain forensic science methodologies judicially certified before the techniques have been properly studied and their accuracy verified by the scientific community.Id. at S-9.
In Mr. Johnston’s case, questionable expert testimony was
utilized against him. For example, testimony reveals that
Investigator Dupius testified as to blood spatter. Interestingly,
Investigator Dupius was exclusively trained by the now
discredited Judith Bunker. Ms. Bunker was revealed to have
converted herself into an expert in bloodstain pattern analysis
from a brief four hour workshop conducted by Mr. Herbert
MacDonnell in Birmingham, Alabama. With only this minimal
experience Ms. Bunker launched a career instructing law
enforcement upon the complex science of blood-stain pattern
analysis.15
Investigator Dupius testified that he observed a reddish
stain on Mr. Johnston’s right sock and that the stain projected
15 This claim was raised and rejected as to Ms. Bunker’s
lack of credentials in Johnston v. State, 708 So.2d 590 (Fla.
1998).
in a downward motion. He also observed a dark stain on Mr. Johnston’s brown shoes, as well as a single red stain on the groin area of his shorts (R. 540). Dupius then admitted that he conducted no testing as to whether blood was actually on the socks, although he surmised that based on his training and experience it was blood (R 541).
Dupius further testified that the blood was projected or was cast-off and was in motion when it came into contact with Mr. Johnston’s clothing since it was not a smear pattern (R. 541-42). Investigator Dupius also related that he observed several patterns within Mary Hammond’s home, however, he did not mention any of it being tested. Based upon these observations he related that the three arches of staining on the west wall were cast-off stains because a bloody object had been in motion towards the right side of the body (R. 545). He also opined that the killer was right-handed (R. 553).
Officer Ostermeyer also testified regarding blood evidence supposedly upon Mr. Johnston’s clothing (R. 641-44). He completed presumptive testing and found Mr. Johnston’s clothing tested positive for the presence of blood. The areas reacting to the Luminol were the back of the Mr. Johnston’s shirt, his sleeves, his waistband, the front of his shorts, the back pocket area of his shorts, and his right shoe (R. 648-49). The officer admitted the test was not conclusive and can give false positives
(R. 651-53).
Blood spatter is the type of evidence that is listed as
suspect within the study conducted by the National Academy of
Sciences. The study relates:
However, many sources of variability arise with the production of bloodstain patterns, and their interpretation is not nearly as straightforward as the process implies. Interpreting and integrating bloodstain patterns into a reconstruction requires, at a minimum:
* an appropriate scientific education;* knowledge of the terminology employed(e.g., angle of impact, arterialspurting, back spatter, castoffpattern);* an understanding of limitations of the measurement tools used to make bloodstain pattern measurements (e.g.,calculators, software, lasers,protractors);* an understanding of applied mathematics and the use of significant figures;* an understanding of the physics of fluid transfer;* an understanding of pathology of wounds;and * an understanding of the general patterns blood makes after leaving the human body.
Strengthening Forensic Science in the United State: A Path
Forward, http://www.nap.edu/catalog/12589.html, Prepublication
Copy, at 5-38.
None of these potential sources of variability were explored
in Mr. Johnston’s case, including the fact Investigator Dupius
received virtually no meaningful instruction in this complex
science. Mere conclusory allegations were made with no
meaningful cross-examination or adversarial testing. The reliability necessary to sustain the conviction and impending execution is clearly lacking.
Gene Hietchew testified that fourteen latent prints had been lifted at the crime scene of which four were usable (R. 681). The prints did not match Mary Hammond, Kevin Williams, or David Johnston (R. 682). However, the police failed to compare the prints of Jose Gutierrez who had been observed within hours of the crime sitting in the driveway looking as if he were spoiling for a fight.
The State also had Terrel Kingery testify regarding pattern evidence relating to Mr. Johnston’s shoes (R. 740-52). He received plaster casts, a pair of shoes, and photographs of shoe tracks, among other things (R. 742). Subsequently, he compared the prints and expressed the opinion that Mr. Johnston’s left shoe could have made the print (R. 745). Kingery described the process he utilized as inking the shoes, putting the shoes on his feet (not the same size as Mr. Johnston) and then personally making the prints. He admitted the shoes had already been tested for blood and that he did not use the same soil as that at the crime scene.
Within the National Academy of Sciences report footwear pattern evidence is specifically discussed. “Class characteristics of footwear and tires result from repetitive
controlled processes that are typically mechanical, such as those used to manufacture items in quantity. Although defined similarly by various authors, Bodziak describes footwear class characteristics as ‘an intentional or unavoidable characteristic that repeats during the manufacturing process and is shared by one or more other shoes.’” (footnote omitted), Strengthening Forensic Science in the United State: A Path Forward, http://www.nap.edu/catalog/12589.html, Prepublication Copy, at 5
15.
The study goes on to consider individual wear characteristics by stating, “For footwear, Bodziak writes that ‘individual identifying characteristics are characteristics that result when something is randomly added to or taken away from a shoe outsole that either causes or contributes to making that shoe outsole unique.’” (footnote omitted), Id.
In Mr. Johnston’s case these differences and methods of interpretation were either not used or not brought out in testimony. Simply testifying to a match is not enough. The aforementioned guidelines must be adhered to in order to provide the kind of reliability required to convict and execute a man.
The report further calls into question the terminology used to describe testing results. Many terms that are utilized to describe the degrees of association between evidentiary material and particular people or objects, e.g., “match,” “consistent
with,” “identical,” “similar in all respects tested,” and cannot
be excluded as the source of.” Id. at S-15. The Committee
concluded that “[t]he use of such terms can and does have a
profound effect on how the trier of fact in a criminal or civil
matter perceives and evaluates scientific evidence.” Id.
When analyzing the significant advances in DNA technology
and its immense importance to law enforcement to law enforcement
the Committee observed that DNA advances have:
revealed that, in some cases, substantive information and testimony based on faulty forensic science analyses may have contributed to wrongful convictions of innocent people. This fact has demonstrated the potential danger of giving undue weight to evidence and testimony derived from imperfect testing and analysis. Moreover, imprecise or exaggerated expert testimony has sometimes contributed to the admission of erroneous or misleading evidence. NAS Report at S
13. The information, analysis, and ultimate conclusions contained in the NAS Report reveal that “scientific” evidence produced by methods with questionable and untested underlying scientific principles is being used to convict defendants.
The use of this questionable “scientific” evidence, coupled with the utter lack of standardized reporting and terminology in forensic disciplines renders both the conviction as well as the death sentence unreliable. Under the Eighth Amendment, the death penalty must be imposed fairly, and with reasonable consistency, or not at all. Furman v. Georgia, 408 U.S. 238, 310 (1972)(per
curiam). Furman stands for the proposition most succinctly explained by Justice Stewart in his concurring opinion: “The Eighth and Fourteenth Amendments cannot tolerate the infliction of a sentence of death under legal systems that permit this unique penalty to be . . . wantonly and . . . freakishly imposed” on a “capriciously selected random handful” of individuals. Id. at 310 (Stewart, J. concurring). Differences in terminology, for example, could mean the difference between life and death: two experts in the same field of forensic science may testify in two different cases and use differing terminology to describe the same results so that one defendant is convicted or sentenced to death on the basis of that evidence and the other is not. The imposition and carrying out of the death penalty in cases in which untested and unreliable “scientific” evidence is used to convict defendants also constitutes cruel and unusual punishment. When the myriad of problems with so-called “scientific” evidence are considered together in analyzing its ability to produce a reliable result, the conclusion is inescapable: as Justice Brennan wrote in his concurring opinion in Furman, “it smacks of little more than a lottery system.” Furman, 408 U.S. at 293 (Brennan, J., concurring). The use of “scientific” evidence produced by methods of questionable and untested underlying scientific principles cannot “assure consistency, fairness, and rationality” and cannot “assure that sentences of death will not
be ‘wantonly’ or ‘freakishly’ imposed.” Proffitt v. Florida, 428
U.S. 242, 259-260 (1976).
Mr. Johnston submits that this issue should be remanded for an evidentiary hearing and thereafter, Rule 3.851 relief should issue.
ARGUMENT III
THE TRIAL COURT ERRED IN DENYING MR. JOHNSTON’S REQUEST
FOR FORENSIC TESTING RESULTING IN A VIOLATION OF MR.
JOHNSTON’S RIGHTS TO DUE PROCESS UNDER BOTH THE U.S.
AND FLORIDA CONSTITUTIONS.
Mr. Johnston was charged with the murder of Mary Hammond and convicted and sentenced to death in June 1, 1984. Numerous articles of evidence were collected and tested by the State of Florida. At trial, the State introduced numerous items of evidence and adduced expert testimony regarding the evidence.
Officer Ostermeyer testified regarding blood evidence supposedly upon Mr. Johnston’s clothing (R. 641-44). He completed presumptive testing and found Mr. Johnston’s clothing tested positive for the presence of blood. The areas reacting to the Luminol were the back of the Defendant’s shirt, his sleeves, his waistband, the front of his shorts, the back pocket area of his shorts, and his right shoe (R. 648-49). The officer admitted the test was not conclusive and gives false positives (R. 65153).
Gene Hietchew testified that fourteen latent prints had been
lifted at the crime scene of which four were usable (R. 681). The prints did not match Mary Hammond, Kevin Williams, or David Johnston (R. 682). However, the police failed to compare the prints of Jose Gutierrez who had been observed within hours of the crime sitting in the driveway looking as if he were spoiling for a fight.
The State also had Terrel Kingery testify regarding pattern evidence relating to Mr. Johnston’s shoes (R. 740-52). He received plaster casts, a pair of shoes, photographs of shoe tracks, among other things (R. 742). Subsequently, he compared the prints and expressed the opinion that Mr. Johnston’s left shoe could have made the print (R. 745). Kingery described the process he utilized as inking the shoes, putting the shoes on his feet (not the same size as Mr. Johnston) and then personally making the prints. He admitted the shoes had already been tested for blood and that he did not use the same soil as that at the crime scene.
Mr. Johnston has had numerous attorneys over the years and been effectively without counsel for the last couple of years. None of these attorneys did any independent testing. Indeed, many of the testing procedures available now did not exist during the time period when many of these attorneys represented Mr. Johnston or the science and protocols have since progressed to allow a greater degree of reliability. See, Claim II, supra.
When considered in conjunction with the newly discovered evidence claim that the testing procedures used in capital cases such as Mr. Johnston’s have been exposed as often times fraught with error, it becomes glaringly apparent that Mr. Johnston’s case requires an independent forensic review of the evidence in by his own forensic experts.
The trial court clearly erred when it found that, “As this Court concluded in the Order Denying Motion for Postconviction DNA Testing, there is no reasonable probability that the results of additional forensic testing would exonerate Mr. Johnston of the crime.” Order Denying Motion to Produce Evidence for Forensic Testing and Request for Hearing at 1.
The forensic evidence in this case was circumstantial in nature.16 Mr. Johnston has always maintained his innocence in this case. Mr. Johnston’s postconviction forensic experts will review the facts and evidence in this case and conduct forensic testing to utilize the most modern testing and science to ascertain the validity of the prior testing conducted 25 years ago. Additional testing of the evidence listed above is critical to Mr. Johnston’s claim of innocence, and would in no way harm the State. It would be a violation of due process for Mr. Johnston to be denied access to independent forensic testing in
16 Mr. Johnston adopts and re-alleges the argument regarding the exculpatory nature of the proposed testing as argued in ClaimI, supra.
this case.
The U.S. Court of Appeals for the Ninth Circuit recently
found that a state prisoner has a right to postconviction access
to biological evidence used to convict him. Osborne v. District
Attorney’s Office, 521 F.3d 1118 (9th Cir. 2008), cert.granted,
(currently pending) District Attorney’s Office v. Osborne (U.S.
Sup. Ct., Case No. 08-6). The biological evidence in Osborne
related to DNA testing and was the subject of a civil rights
action filed pursuant to §1983. The State of Alaska had blocked
Osborne’s access to DNA testing.17 In granting Osborne access to
the biological evidence the Ninth Circuit observed that:
The evidence in question can be produced easily and without cost to the State and, if favorable to Osborne, would be strong evidence in support of post-conviction relief. Nonetheless, the State seeks to foreclose such relief by its simple refusal to open the evidence locker . . .
The State supports its position with the argument that the circumstantial and eyewitness evidence in this case is also strong evidence of Osborne’s guilt, and thus granting access is not likely to “further the truthseeking function of our criminal justice system.” As recent history has shown, however, DNA evidence has the capability of refuting otherwise irrefutable inculpatory evidence, and as we have already established this case is no exception.
If the inculpatory evidence has been correctly interpreted, further DNA testing will confirm that Osborne is guilty as charged and convicted. But it remains a very real possibility that further DNAtesting will be exculpatory and may even lead to
17 Mr. Johnston adopts the due process argument within this claim as if fully argued in Claim I as well.
-26
Osborne’s exoneration. In the former case, the State will have lost nothing; indeed, it will gain even more definitive proof of Osborne’s guilt and will be relieved of the burden of further post-conviction litigation. In the latter case, however, Osborne will obviously gain a great deal, as will the State, whose paramount interests are in seeking justice, not obtaining convictions at all costs, and which will then have strong evidence for use in catching and punishing the real perpetrator. Importantly, the State is prejudiced in neither case, and the truth-seeking function of the criminal justice system is furthered in either case. Osborne at 1141.
Osborne, 521 F.3d at 1141. The same holds true in Mr. Johnston’s
case. The minimal amount of time required for DNA and forensic
testing relative to the twenty-six years Mr. Johnston has spent
on Florida’s death row does little, if anything, to prejudice the
State of Florida. However, this requested testing, if the
results are exculpatory, has the potential to save Mr. Johnston’s
life. Clearly, the requested testing should be allowed and
relief should issue.
Heartbreak lives in children with parents on Death Row
Heartbreak lives in children with parents on Death Row
Palm Beach Post Staff Writer
Friday, May 22, 2009
Friday, May 22, 2009
WEST PALM BEACH — Daddy did something in the woods. That's all the boy knows.
He hears tidbits of information from whispers at school, and when he lingers in the hallway after his mother tells him to go play in his room while she talks to guests about his father's case.
He smiles and chats happily whenever visitors come to his West Palm Beach home, shows them his new puppy April, his bird Polly and his massive collection of stuffed animals.
But within 10 minutes, Ricardo Sanchez III blurts out what is weighing heaviest on his mind.
"They won't let me see daddy at jail anymore," the 6-year-old says. "I'm supposed to be 9."
No one has told him exactly why he's not able to see his dad.
The increased restrictions on Ricardo Sanchez Jr.'s confinement in federal detention - and the reason his son can't visit - lies in a reality he will inevitably find out one day: Ricardo III's father is going to Death Row.
U.S. Senior District Judge Daniel T.K Hurley on May 13 sentenced Sanchez, 25, and another man, Daniel Troya, 26, to die for the 2006 slayings of two boys, murdered with their parents along Florida's Turnpike in what prosecutors say was a drug-related killing.
For Sanchez's son, a boy whose family calls him "Three," the death sentence joins him to a group suffering from the weight of loving a parent whom society has deemed unfit to live.
"They really are the forgotten victims in death penalty cases," Susannah Sheffer, executive director of the Murder Victims' Families for Human Rights, says of death row inmates' children. "It's not something that has been part of the debate about capital punishment."
Little has been done to study the effect of an execution on an inmate's children, but some say the combination of the loss of the parent, shame about the crime for which he or she is convicted, and conflicted feelings about the government often come together to inflict deep emotional and psychological trauma that follows them into adulthood.
Desiree Babbitt, now 30 and living in New England, was a toddler when her father, Manny, was sentenced to death in California for killing a 78-year-old grandmother after he broke into her house while suffering a flashback to his time in Vietnam.
She grew up knowing he was in prison but unaware he was on Death Row. After she found out, she spoke out on his behalf. She asked anyone who would listen to keep her father from being executed, saying she needed him.
In the meantime, Desiree said, her father was her world. He sent letters full of poetry and math problems, which prison guards helped him devise as she aged and her proficiency in the subject surpassed his.
Manny Babbitt was executed in 1999. Desiree was 21.
His death is a cloud that hangs over her life, she says.
Since then she has been hospitalized more than a dozen times for mental illness. She works for several months at a time, lately as a booking agent for a club, but after a while her depression sets in and she can no longer function.
"I'm OK today," Babbitt said on a Tuesday afternoon. "But if you would have called me yesterday I probably would have been crying on the phone."
For Misty McWee of South Carolina, the death sentence and 2004 execution of her father Jerry McWee fueled a downward spiral in her life that included years of drug and alcohol abuse, a violent marriage and a suicide attempt.
She was 14 and living with her father, a former police officer, when he was arrested in 1991 for the murder of a convenience store clerk in Aiken County, S.C. She was 28 by the time he was executed.
Now in her early 30s, McWee says she is just now regrouping from the toll of her father's execution.
The birth of her son, now 3, has changed her life for the better, but she says she still wrestles with deep issues of anger. For years she said she cried for the children of her father's victim, sad that they would never see their father again.
"I hated him for what he did. I hated him for putting all of us in that situation," McWee said of her father. "But in the end, all the love you have for him takes over."
Sheffer says a death sentence for a parent leaves a child with questions. Chief among them, she says: "If killing is wrong, then why is the state killing daddy?"
The answers, or lack thereof, often breeds a resentment of government institutions.
Two weeks ago, Ricardo Sanchez III's mother, Maria Lopez, had to drag her son, howling and screaming, into her car after they were turned away at the Federal Detention Center in Miami.
"He asked me 'why are they being mean to me? I don't like this jail anymore,'" Lopez said.
Babbitt fears these experiences for Ricardo III, who wants to be a police officer, will start of years of negative impressions of law enforcement and the government.
"It happened to me," Babbitt said. "I used to want to be a lawyer, or a politician, but now it's like 'Are you going to let me run for office knowing who my father was?'"
Defense mitigation specialist Lisa McDermott spent months talking to other children of death row inmates to help Sanchez's attorney, Donnie Murrell, in preparation for the penalty phase of the trial.
McDermott says she has tried to get Ricardo III's mother, Maria Lopez, to take him for counseling. Lopez hasn't done so yet, but says she will.
Even if she goes, Sheffer says, it is difficult to find a counselor who is trained on how to deal with children in his situation. No one has even come up with an approximate number of the children across the country who have a parent on death row.
It is clear on a Thursday morning, though, that Ricardo III understands none of that. He plays with his soccer ball, watches Scooby-Doo, and offers homemade brownies to guests at his house before he runs to his room and emerges with his favorite bear.
His mother and grandmother got it for him at a Build-a-Bear workshop recently. He made a wish on a heart that went into the bear.
The boy for weeks has refused to tell anyone what he wished.
But after holding the bear for a few minutes that Thursday, he releases a clue in a tiny whisper, his hand cupped around the side of his mouth so no one else will hear.
"It's about daddy," he says.
Then he pulls away quickly to say goodbye and asks to pass a message along to his dad, a request he makes to anyone he thinks will see Sanchez before he does.
"Tell him 'I love you... and be good,' " he says.
DNA testing and David Johnston
From the inital brief in David Johnston :
1. The trial court erred in denying Mr. Johnston’s motion for postconviction DNA testing. Contrary to the trial court’s determination, there can be no doubt that DNA testing could exonerate Mr. Johnston. There were no eyewitnesses to the crime nor did Mr. Johnston confess to the murder. There was no fingerprint evidence connecting Mr. Johnston to the crime.
Clearly, the presence of blood on Mr. Johnston was the primary factor in obtaining a conviction. The absence of his DNA under the victim’s fingernails combined with the absence of the victim’s blood on Mr. Johnston would establish his innocence.
2. Newly discovered evidence has revealed that Mr. Johnston was convicted based on infirm forensic evidence in violation of the Fifth, Eighth and Fourteenth Amendments to the United States Constitution. 3. The trial court erred in denying Mr. Johnston’s request for forensic testing resulting in a violation of Mr. Johnston’s rights to due process under both the U.S. and Florida Constitutions. 4. The clemency process and the manner in which it was determined that Mr. Johnston should receive a death warrant on April 20, 2009, was arbitrary and capricious and in violation of the Eighth and Fourteenth Amendments. 5. Mr. Johnston is exempt from execution under the Eighth Amendment to the U.S. Constitution because he suffers from such severe mental illness that death can never be an appropriate punishment. Mr. Johnston’s severe mental illness places him within the class of defendants, like those who were under the age of eighteen at the time of the crime and those with mental retardation, who are categorically excluded from being eligible for the death penalty.
Clearly, the presence of blood on Mr. Johnston was the primary factor in obtaining a conviction. The absence of his DNA under the victim’s fingernails combined with the absence of the victim’s blood on Mr. Johnston would establish his innocence.
2. Newly discovered evidence has revealed that Mr. Johnston was convicted based on infirm forensic evidence in violation of the Fifth, Eighth and Fourteenth Amendments to the United States Constitution. 3. The trial court erred in denying Mr. Johnston’s request for forensic testing resulting in a violation of Mr. Johnston’s rights to due process under both the U.S. and Florida Constitutions. 4. The clemency process and the manner in which it was determined that Mr. Johnston should receive a death warrant on April 20, 2009, was arbitrary and capricious and in violation of the Eighth and Fourteenth Amendments. 5. Mr. Johnston is exempt from execution under the Eighth Amendment to the U.S. Constitution because he suffers from such severe mental illness that death can never be an appropriate punishment. Mr. Johnston’s severe mental illness places him within the class of defendants, like those who were under the age of eighteen at the time of the crime and those with mental retardation, who are categorically excluded from being eligible for the death penalty.
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