IN THE SUPREME COURT OF FLORIDA
CASE NO. SC09-____
STATE OF FLORIDA,
ON APPEAL FROM THE CIRCUIT COURT
OF THE SEVENTEENTH JUDICIAL CIRCUIT,
IN AND FOR BROWARD COUNTY, STATE OF FLORIDA
INITIAL BRIEF OF APPELLANT
MARTIN J. MCCLAIN
Florida Bar No. 0754773
McClain & McDermott, P.A.
Attorneys at Law
141 N.E. 30th Street
Wilton Manors, FL 33334
COUNSEL FOR APPELLANT
This proceeding involves the appeal of the circuit court's
summary denial of post-conviction relief. The following symbols
will be used to designate references to the record in this
“R." -- record on direct appeal;
“1PC-R.” -- record on first Rule 3.850 appeal;
“1PC-T.” -- hearing transcripts on prior Rule 3.850 appeal;
“2PC-R." -- record on second 3.851 appeal;
“2PC-T.” -- hearing transcripts on instant Rule 3.850
“Supp. 2PC-R.” -- supplemental record on instant 3.850
“3PC-R.” –- record on instant 3.851 appeal;
“WR.” -- record from the trial of Wigley, Mr. Marek’s codefendant.
REQUEST FOR ORAL ARGUMENT
Mr. Marek has been sentenced to death. The resolution of
the issues involved in this action will therefore determine
whether he lives or dies. This Court has not hesitated to allow
oral argument in other capital cases in a similar procedural
posture. Lightbourne v. State, 742 So. 2d 238 (Fla. 1999); Mills
v. Moore, 786 So. 2d 532 (Fla. 2001) Swafford v. State, 828 So.
2d 966 (Fla. 2002); Roberts v. State, 840 So. 2d 962 (Fla. 2002);
Wright v. State, 857 So. 2d 861 (Fla. 2003). A full opportunity
to air the issues through oral argument would be more than
appropriate in this case, given the seriousness of the claims
involved and the stakes at issue. Mr. Marek, through counsel,
accordingly urges that the Court permit oral argument.
Mr. Marek’s death warrant was signed on April 20, 2009, 1
without any notice to undersigned counsel while a Rule 3.851
motion was pending in circuit court. This Court then directed
the circuit court to resolve all issues by April 27 and th
directed undersigned counsel to submit an initial brief by noon
on April 29 . th
Undersigned counsel represents Mr. Marek as his registry
counsel. Counsel is a member of a two person law firm. He does
not have the resources that the CCRC offices possess. He is not
handling Mr. Marek’s case as a Special Assistant CCRC as he did
during Mr. Tompkins’ recent death warrant litigation.
Undersigned counsel has been doing capital collateral litigation
for many years and has represented a number of individuals with
an execution date pending. In his over 20 years of experience
doing this in Florida, he does not recall an instance wherein
while Rule 3.851 and Rule 3.852 proceedings were occurring in
circuit court, he was required to file an initial brief in this
Court within 9 days of the signing of the warrant. This schedule
can only assure that undersigned counsel is unable to
professionally and adequately represent Mr. Marek. It means that
the brief that he submits and the preparation of any other
pleadings and the pursuit of any additional investigation in
light of the disclosure of new public records will be of inferior
quality and thus less likely to produce a positive result for Mr.
Marek. In order to meet this Court’s arbitrary deadline, counsel
has had to stop reviewing and investigating the public records
disclosed less than 48 hours ago. This Court’s action in setting
the briefing schedule in the fashion that it did and in burdening
a two person law firm with a schedule that has not been imposed
on the CCRC offices which are much better equipped to handle such
a burden certainly constitutes another arbitrary aspect of
Florida’s capital sentencing scheme.
STATEMENT OF THE CASE AND FACTS1
On July 6, 1983, Mr. Marek and his co-defendant, Raymond
Wigley, were charged by indictment in the Circuit Court of the
Seventeenth Judicial Circuit, Broward County, Florida, with first
degree murder, kidnapping, burglary, and two counts of sexual
battery. Wigley was tried first, was found guilty as charged on
all counts, and was sentenced to life imprisonment.
At Wigley’s trial in early May of 1984, the prosecutor
maintained that Wigley was equally or even more culpable than Mr.
And it’s interesting to note, of course, that at the
time that the defendant was arrested it was Raymond
Wigley and not John Marek who was in possession of those
items. It was Raymond Wigley who was in exclusive
possession of those items.
(WR. 1173)(emphasis added).
* * *
Who, ladies and gentlemen, was the first person to
display a gun to her? It was Raymond Dewayne Wigley.
Who was the first person to rape her? It was
Raymond Dewayne Wigley.
Who was the first person to beat her? It was
Raymond Dewayne Wigley. Not John Marek.
Who was involved up to the hair on his chinniechin-
chin with dragging her up into that lifeguard
shack? It was Raymond Dewayne Wigley and John Marek
Who was involved in the burglary? Equally, it was
Raymond Dewayne Wigley and John Marek.
Who was involved in the kidnapping? It was both.
(WR. 1175)(emphasis added).
* * *
I ask, ladies and gentlemen, when you go back into
that jury room take the tape, and listen to it very
carefully because you are going to find on that tape
that the defendant did not say and there is no evidence
to suggest that his participation was relatively minor.
He admits sexually battering the victim himself,
not once, but more than once.
He admits beating her himself.
He admits kidnapping her.
He admits commission of a burglary.
He admits being the first person to display a gun.
He admits aiding and assisting Marek in everything
that Marek did and he takes and equally active part
that Marek does.
The second mitigating circumstance which you may
consider: The defendant acted under extreme duress or
under the substantial domination of another person.
Here again we get into an area that the defense
has tried to argue throughout the entire case but I
think you are going to find it’s not a mitigating
Where is the evidence? Not what Mr. Cohn says.
Where is the evidence that the defendant was under the
domination of John Richard Marek? Mr. Cohn, I’m sure
is going to argue well, who was it that did the
talking? Who was it that did the talking when they
stopped and picked Adella Marie Simmons up; that it was
John Marek that did the talking?
Who is the first one to take aggressive action
towards Adella Marie Simmons? It’s not Marek? It’s
Raymond Wigley. Wigley is the first one to pull out
Who is the first one to rape her? It’s not Marek.
Who is the first one to beat her? It’s not Marek.
Do you find that Wigley was dominated or
submissive as he assisted, as he acted equally with
Marek in the kidnapping and the beating, as he helped
Marek get Adelia Marie Simmons up into the guard shack?
He’s acting equally. One is no more or no less guilty
than the other. Is he less guilty because he helped
Marek rape Adella Maris Simmons; that maybe he held her
down? Does that make him less guilty or dominated by
Is there any evidence that Wigley was dominated in
any respect? The defense I’m sure will say well, it
was Marek who did the talking on the beach; that every
time Wigley opened his mouth, Marek cut him off.
Again take that tape back and listen to it.
Wigley explains that. The agreement when they first
came into contact with the police, Marek says let me do
the talking. Let me handle it. Remember, Wigley was
perhaps a little bit more intoxicated than Marek was.
Marek speaks a little better. Marek did the talking.
But it was an interesting point, as I asked both
of the people that testified here that were there.
From Satink down to Thompson, I asked was there
anything about Wigley’s demeanor? Was there anything
about his manner? Anything that he said, anything that
he did that suggested in any way that he was afraid of
John Richard Marek; that there was any fear at all and
both of them unequivocally said no.
Was he dominated? Wouldn’t you have seen some
information? Won’t there have been some testimony?
Yes, he was frightened. The answer was no.
But I think the most revealing point of all when
we get down to the issue of dominance, of whether
someone was dominated by another, is the fact that
Wigley laughed. After he had been involved in the
murder, the rape, the kidnapping, the burglary, after
they had gone through the atrocities that they went
through, from burning her pubic hair to beating her, he
was capable of laughing afterwards. Laughing on the
beach. Laughing at Marek’s jokes. Is that a person
who is dominated and fearful? To him it just wasn’t
that big a deal and that’s very, very frightening.
There isn’t any evidence in this case that Wigley
was dominated by Marek. All of the evidence from the
physical evidence to the testimonial evidence, to the
tape from Wigley himself, all suggest that they were
(WR. 1185-88)(emphasis added).
After convicting Wigley of first degree murder, his jury
returned a life recommendation which the judge followed. Wigley
received a life sentence. During Wigley’s sentencing hearing,
the prosecutor complained that “[t]he State runs the risk of
potentially even losing the case against Marek with nothing other
than circumstantial evidence against him and the defendant has
refused to cooperate or do anything in any way to assist the
State...” (WR. 1247-48). Of course, because Wigley received a
life sentence, the court record was not before this Court at the
time of Mr. Marek’s direct appeal and this Court and Mr. Marek’s
direct appeal attorney would have been unaware of the different
position the State took at Wigley’s trial.
Mr. Marek’s trial began shortly thereafter on May 22, 1984,
also before Judge Kaplan. At Mr. Marek’s trial, the prosecutor
took a different position than the one taken at the Wigley trial.
Contrary to his position in Wigley’s trial, the prosecutor now
asserted that Mr. Marek was the leader and dominant actor.
During his opening statement, the prosecutor stated:
The interesting point of Jean Trach’s testimony: She is
going to tell you that the person who did all of the
talking, the person who seemed to control what was
going on was John Marek. In fact she is going to tell
you Wigley never opened his mouth. Wigley never said
(R. 423-24)(emphasis added).
* * *
In Mr. Marek’s trial, the prosecutor neglected to mention, 2
as he did in Wigley’s trial, that Mr. Marek was doing the talking
through a pre-arranged agreement.
Every time Wigley tried to talk, he is going to tell
you Marek cut him off. Marek did the talking. Just
like Jean Trach told you, he is going to tell you Marek
controlled the tempo. Marek controlled the pace.
Marek did the talking. Marek joked. And all the while
100 yards away lay the battered, burned, raped, and
dead body of Adella Marie Simmons.
(R. 430)(emphasis added).
Subsequently, during his guilt phase closing argument, the
We know that all of the talking, all of the
conversation was done by John Marek. Wigley was in the
truck and then stood outside the truck at some point
but for 45 minutes Wigley didn’t say anything and
that’s a thread that you will see running throughout
this case. It’s Marek who controls the tempo. It’s
Marek who sets the pace. It’s Marek that’s the leader
of the two. Marek does the talking. Marek assists in
fixing the truck or the car. They can’t fix the car.
Marek is the one who offers a ride. Marek is the one
who suggests taking one of them to a call booth.
(R. 1137-38)(emphasis added).2
During his closing argument at the penalty phase, the
The evidence from Jean Trach, it was Marek who did
all the talking. The evidence from Officer Satink at
the scene, it was Mr. Marek who did all the talking,
Marek who controlled. Marek who set the tempo. The
evidence from the other man, Thompson, that was at the
scene. The temp was set by Marek. Not by Wigley. He
wasn’t under the domination of anybody. If anything,
he was the person who was dominating.
(R. 1304)(emphasis added).
In the presentation of evidence, the prosecutor molded the
testimony of his witnesses at Mr. Marek’s trial in a very
different way than he had at Wigley’s trial. For example, during
Wigley’s trial, Dennis Satink testified that while Wigley
appeared to have been drinking the most (WR. 603), he was
cognizant of what was going on (WR. 604). Further, Satink
testified that Wigley showed no fear of Marek (WR. 608-09). And,
Satink testified that he did in fact have some conversations with
Wigley (WR. 627). But at Mr. Marek’s trial, Satink’s testimony
portrayed a much different scenario. In this version, Wigley was
so intoxicated that he was unable to stand without support, he
was staggering, and his speech was slurred (R. 672-73). In this
version, whenever Wigley tried to speak, Marek interrupted and
stopped him from talking (R. 670-71). And in this version,
Satink stated that Marek was the more dominant of the two (R.
Additionally, it is clear that the prosecutor manipulated
the testimony of Jean Track at Mr. Marek’s trial in a way that
was quite different than what had been presented at Wigley’s
trial. There, the prosecutor focused on Wigley’s silence as
making him a more dangerous, fearful individual:
Q Now, at what point in time was it that you
first observed Raymond Wigley and what was it about
Raymond Wigley that attracted your attention or caused
you to observe him?
A Mr. Marek had made the - he asked to take one
of us to a station or to a phone. At that time, the
passenger side of the truck, the door opened and
Raymond Wigley got out and stood there.
Q Stood where?
A He closed the door. A little in front of the
door towards the hood of the truck.
Q Did he say anything?
Q Did he move?
Q Just stood still?
Q How long a period of time?
A I’d say 10 minutes, 15 minutes, maybe.
(WR. 661-62). From this testimony, the prosecutor emphasized to
the jury that it was Wigley who frightened Jean Trach:
Jean Trach will tell you she was very, very frightened.
This was the stuff that nightmares were made of and she
is going to tell you that Wigley in particular was a
little unusual in that Wigley simply sat there. Marek
did most of the talking. Wigley stood there and didn’t
say anything. He just looked.
(WR. 423-24)(emphasis added). Conversely, in Mr. Marek’s trial,
the prosecutor molded the testimony so he could assert that Mr.
Marek was in fact the leader, and that he was in control (R. 423-
On June 1, 1984, after lengthy deliberations the jury found
Mr. Marek guilty of first degree murder (on a felony murder
Yet in his sentencing order, Judge Kaplan found that Mr. 3
Marek and Wigley “acted in concert from beginning to end” (R.
These were: (1) prior violent felony based upon Mr. Marek’s 4
contemporaneous conviction of kidnapping; (2) murder committed
while engaged in burglary; (3) murder committed for pecuniary
gain; (4) heinous, atrocious or cruel (R. 1472).
theory), kidnapping, attempted burglary with an assault (a lesser
included offense), and two counts of battery (lesser included
offenses of sexual battery). The penalty phase was conducted on
June 5, 1984. When Mr. Marek’s counsel said he intended to tell
the jury about Wigley’s life sentence, Judge Kaplan said if
counsel did so, he would allow the State to introduce Wigley’s
self-serving confession in which he tried to shift culpability to
Mr. Marek, without providing an opportunity to confront and/or
cross-examine (R. 1283). At the same time, Judge Kaplan would 3
not allow the defense to introduce Dr. Seth Krieger’s
psychological report as mitigating evidence on the grounds that
it was hearsay (R. 1283). Trial counsel presented one mitigation
witness, a detention officer who described Mr. Marek’s good
behavior in jail(R. 1297-99). By a 10-2 vote, the jury
On July 3, 1984, Judge Kaplan imposed death, finding no
mitigating circumstances and four aggravating ones. Mr. Marek 4
unsuccessfully appealed to this Court. Marek v. State, 492 So.
2d 1055 (Fla. 1986).
On October 10, 1988 while a death warrant was pending, Mr.
Marek filed a motion under Rule 3.850, Fla. R. Crim. P. The
motion presented twenty-two claims, including, inter alia, trial
counsel failed to investigate and present mitigating evidence
(Claims V, VI), the defense mental health expert provided
inadequate assistance (Claim II), the jury’s death recommendation
was tainted by invalid aggravators (Claims XI, XII, XIII, XIV),
the death sentence rests upon an unconstitutional automatic
aggravating circumstance (Claim XX), the jury’s sense of
responsibility for sentencing was diluted (Claim XVII), and the
jury was prevented from considering the co-defendant’s life
sentence and a mental health evaluation of Mr. Marek as
mitigation (Claim IX)(1PC-R. 1-118).
On October 31, 1988, Mr. Marek filed a Motion to Disqualify
Judge Kaplan (1PC-R. 250). The motion relied upon a letter dated
June 24, 1987, from Judge Kaplan to the Florida Parole and
Probation Commission. In the letter Judge Kaplan stated his
opinions that Mr. Marek was “unfit to live in our society,” was
“capable of killing again and should not be released or given any
leniency,” and “enjoyed every minute of abuse that he inflicted
upon [the victim], including raping her repeatedly, burning her,
kicking her, beating her and strangling her” (1PC-R. 255). This
latter representation was made in disregard of the fact that the
jury had acquitted Mr. Marek of the two counts of sexual battery,
convicting him of the lesser included offense of battery (R.
1441-42). Judge Kaplan denied the Motion to Disqualify
alternatively as “untimely and legally insufficient on its face”
An evidentiary hearing was conducted on November 3 and 4,
1988, days before Mr. Marek's scheduled execution. Mr. Marek
presented numerous witnesses and documents regarding his claim
that trial counsel provided ineffective assistance in failing to
investigate and present evidence of mitigation and regarding his
claim that the trial mental health expert curtailed his
evaluation of Mr. Marek and thus the cost of that evaluation in
order to assure future court appointments. Mr. Marek also
contended that allowing the jury to consider the prior violent
felony aggravator and Judge Kaplan’s finding of that aggravator
were legally erroneous because the aggravator relied upon Mr.
Marek’s contemporaneous conviction for kidnapping.
In his order denying post conviction relief, Judge Kaplan
made both oral and written factual findings regarding Mr. Marek’s
claims of penalty phase ineffective assistance of counsel and
inadequate mental health evaluation (1PC-R. 262-64; 1PC-T. 487-
88). Judge Kaplan stated: “This Court finds however that MAREK
was uninterested in calling family members and in fact indicated
to defense counsel that the whereabouts of his relatives were
unknown and that any testimony they would give would be negative”
(1PC-R. 263-64). Judge Kaplan further indicated that even if
defense counsel had investigated and “contacted these family
members or obtained school records and welfare records from
Texas, the exposure of this information to the jury would have
served as a double-edged sword in that both positive and negative
information would have come before the jury” (1PC-R. 264). Judge
Kaplan did agree that the prior violent felony aggravator had to
be struck, but found the erroneous consideration of the
aggravator was harmless error (1PC-R. 266).
Mr. Marek appealed. Regarding ineffective assistance of
counsel, this Court deferred to Judge Kaplan: “As to Marek’s
claim of counsel’s ineffectiveness in his rule 3.850 petition, we
find the dictates of Strickland v. Washington, 466 U.S. 668, 104
S. Ct. 2052, 80 L.Ed.2d 674 (1984), were properly applied.”
Marek v. Dugger, 547 So. 2d 109 (Fla. 1989). Without any
discussion, this Court affirmed Judge Kaplan’s decision to strike
the prior violent felony aggravating circumstance and hold the
previous consideration of the aggravator harmless. Without
discussion, this Court affirmed Mr. Marek’s Argument XIX, in
which Mr. Marek challenged Judge Kaplan’s denial of the motion to
disqualify. Id. The Court also denied Mr. Marek’s state habeas
corpus petition. Id.
In 1989, Mr. Marek filed a federal petition for a writ of
habeas corpus. The district court denied relief, and Mr. Marek
appealed. On August 14, 1995, the Eleventh Circuit affirmed.
Marek v. Singletary, 62 F.3d 1295 (11th Cir. 1995).
While his Eleventh Circuit appeal was pending, Mr. Marek
discovered new information and filed a second Rule 3.850 motion
on July 22, 1993 (Supp. 2PC-R. 1-98). Mr. Marek's counsel had
learned that the Broward County scheme of budgeting for the costs
of administering the courts and for the costs of special public
defenders created a judicial interest in denying funds for a
criminal defendant. On February 23, 1993, Broward County Circuit
Court Judge Tyson revealed that “the funds that [the Broward]
County Commission gives the judiciary is for administrative
purposes and also to cover the special public defenders that have
been appointed and the costs” (State v. Correia, 17th Judicial
Circuit, Case No. 92-27313CF, Hearing Transcript at 2).
Mr. Marek’s Rule 3.850 motion alleged that this competition
for funds between the judiciary and court-appointed counsel gave
Judge Kaplan a stake in opposing legitimate and necessary costs
and in the resolution of the adequacy of trial counsel’s
representation, and that this interest in the outcome was
previously unknown to Mr. Marek or his collateral counsel (Supp.
2PC-R. 1-2, 4, 5-12). The motion re-presented claims from the
first Rule 3.850 motion because the prior “proceedings were
tainted” by the judicial interest in the outcome (Supp. 2PC-R.
1). The motion noted that in the prior proceedings, “Mr. Marek
In support of this claim, the 1993 motion recited facts 5
from the 1988 evidentiary hearing. In 1988, trial counsel,
Hilliard Moldof, had testified that mitigation investigation was
not conducted at least in part because of a shortage of time and
money. Counsel testified that to investigate he “would have had
to request the Court to appoint an investigator for a very
oblique reason. I couldn't have given any real reason for it”
(1PC-T. 318). In 1988, the appointed mental health expert, Dr.
Seth Krieger, had testified: “One of the reasons that I had so
much court appointed work was because . . . I was a county
taxpayer and I wasn't going to run up a bill if there wasn't
something to be gotten from it” (1PC-T. 281).
challenged the adequacy of the [trial] mental health evaluation
and the adequacy of his [trial] representation. Evidence was
presented that investigation and mental health testing were not
conducted in order to save taxpayers money and insure future
court appointments” (Supp. 2PC-R. 4). 5
Simultaneously with the filing of his second Rule 3.850
motion, Mr. Marek filed a Motion to Disqualify Judge Kaplan.
This motion relied upon new information “which, in conjunction
with the materials included in the original Motion to Disqualify
[filed in 1988], further establishes that Mr. Marek cannot
receive a fair and impartial hearing before Judge Kaplan” (Supp.
2PC-R. 100-01). The information came from a March 31, 1993,
segment of the CBS television show “48 Hours” which included an
interview with Judge Kaplan in which he explained that his job in
dealing with criminal defendants was “to get rid of these people
. . . and keep them off the streets as long as possible so that
you and I can be rid of them” (Supp. 2PC-R. 101-02). His policy
was “you’ve got to fight fire with fire” (Supp. 2PC-R. 102).
Prosecutors who were interviewed said they were “excited” when
they were assigned cases in front of Judge Kaplan because, as
Judge Kaplan explained, “Sometimes you give them a little stiffer
sentence so they’ll spend some more real time in jail” (Supp.
2PC-R. 102). When a criminal defendant appeared before him,
Judge Kaplan said, “I’m always looking at a negative approach,
somebody’s trying to con me” (Supp. 2PC-R. 122).
Judge Kaplan did not rule on Mr. Marek’s Motion to
Disqualify, and Mr. Marek supplemented it numerous times. On
December 2, 1993, Mr. Marek’s first supplement alleged that an
essentially identical disqualification motion had been filed in
State v. Lewis, that Judge Kaplan had recused himself in Lewis,
and that the new judge had denied the State’s motion to quash Mr.
Lewis’s subpoena to depose Judge Kaplan (2PC-R. 3-6). On
February 9, 1994, Mr. Marek filed a Second Supplement to the
Motion to Disqualify. On July 1, 1994, Mr. Marek’s Third
Supplement alleged that on June 23, 1994, Judge Kaplan revealed
that he had sought representation from the Office of the Attorney
General because of the efforts to depose him in Lewis and that
the Office of the Attorney General had been and still was
representing Mr. Marek’s party opponent (2PC-R. 62-68). On
September 2, 1994, Mr. Marek’s Fourth Supplement alleged that
Judge Kaplan had been represented by the Office of the Attorney
This supplement was erroneously captioned “Third 6
Supplement.” The succeeding supplements were also mis-captioned.
General in Moore v. Kaplan, 640 So. 2d 199 (Fla. 4th DCA
1994)(2PC-R. 118-21). On September 14, 1995, Mr. Marek’s Fifth
Supplement alleged that the log from this Court’s Clerk’s Office
indicated ex parte communication between Judge Kaplan and the
State(2PC-R. 122-30). On March 19, 1996, Mr. Marek alleged that 6
Judge Kaplan had failed to immediately rule on the motion to
disqualify as required by Rule 2.160, Fla. R. Jud. Admin.(2PC-R.
On March 26, 1996, the State finally filed a response to Mr.
Marek’s 1993 Motion to Disqualify and its first five supplements
(2PC-R. 147-61). Immediately thereafter on March 28, 1996, Judge
Kaplan denied the Motion to Disqualify as “legally insufficient”
(2PC-R. 240). Mr. Marek’s counsel received both the State’s
response and Judge Kaplan’s order on April 2, 1996 (2PC-R. 243).
On April 12, 1996, Mr. Marek filed a “Sixth” Supplement to
his Motion to Disqualify (2PC-R. 242-47). Mr. Marek filed an
Amended Sixth Supplement on May 7, 1996 (2PC-R. 277-83). This
supplement pointed out that Mr. Marek’s counsel had received the
State’s response and Judge Kaplan’s order on April 2, 1996, and
therefore had no opportunity to reply. The supplement contended
that this procedure established ex parte communication between
the State and judge had occurred. The supplement also included
the reference to Judge Kaplan’s decision to disqualify himself
from collateral proceedings in State v. Thompson, 17th Judicial
Circuit, Case No. 85-899CFA, based upon his friendship with Mr.
Thompson’s trial counsel, Roy Black. Mr. Marek’s supplement
observed that Judge Kaplan also had a friendship with Mr. Marek’s
trial counsel, Hilliard Moldof, and that Mr. Marek’s collateral
counsel had no way to monitor the friendship or communications
between Judge Kaplan and Mr. Marek’s trial counsel.
On April 17, 1996, the State responded to Mr. Marek’s March
19, 1996, supplement (2PC-R. 267-68). On April 22, 1996, Judge
Kaplan denied that supplement as “legally insufficient” (2PC-R.
271). On April 23, 1996, the State responded to Mr. Marek’s
“Sixth” Supplement (2PC-R. 272-76). On May 9, 1996, and May 16,
1996, Judge Kaplan denied the “Sixth” Supplement and Amended
Sixth Supplement as “legally insufficient” (2PC-R. 286, 287).
On June 3, 1996, Judge Kaplan ordered the State to respond
to Mr. Marek’s Rule 3.850 motion by September 6, 1996 (2PC-R.
290). On August 29, 1996, the State requested a 90-day extension
of time for filing its response, and the motion was granted (2PCR.
On August 21, 1996, Judge Kaplan was deposed in State v.
Lewis (2PC-R. 441). On August 30, 1996 (nine days later), Mr.
Marek filed an Amended Motion to Vacate containing nine claims
(2PC-R. 313-437). In addition to the six claims pled in the Rule
This claim relied in part upon Judge Kaplan’s Lewis 7
deposition, which had not yet been transcribed (2PC-R. 426). The
transcript was filed on October 3, 1996 (2PC-R. 440-532).
The motion stated that Claim I of Mr. Marek’s pending Rule 8
3.850 motion raised the conflict of interest issue arising from
the funding methods (2PC-R. 296-301). Claim I noted that new
information regarding the court funding matter was particularly
pertinent to testimony presented in Mr. Marek’s initial post-
3.850 motion filed in July of 1993 and the one claim pled in a
supplement filed in January of 1994 (2PC-R. 19), the amended
motion alleged that Judge Kaplan’s bias had tainted the trial and
collateral proceedings (Claim IX, 2PC-R. 423-35), and newly 7
discovered evidence regarding Wigley (Claim VIII, 2PC-R. 417-23).
Also on August 30, 1996, Mr. Marek filed a motion to depose
Judge Kaplan (2PC-R. 294-306). The motion relied upon the
recently-conducted deposition in Lewis and upon State v. Lewis,
656 So. 2d 1248 (Fla. 1995)(2PC-R. 294). The motion stated, “Mr.
Marek’s counsel is seeking to depose Judge Kaplan regarding Judge
Kaplan’s animosity towards Mr. Marek, inappropriate remarks made
while being interviewed on a television news program, and the
conflict of interest issue based on the funding methods of the
Seventeenth Judicial Circuit” and noted that these were precisely
the reasons the deposition was allowed in Lewis (2PC-R. 294-95).
The motion pointed out that Mr. Marek had moved to disqualify
Judge Kaplan because of these matters and argued that Judge
Kaplan “likely possesses additional information that may provide
a basis for claims for relief” (2PC-R. 295-96). 8
conviction proceedings: trial counsel had testified that he
limited his investigation of mitigation in part due to concerns
about obtaining the necessary funding, and the trial mental
health expert testified that he received court-appointed work
because he was known as someone who “wasn’t going to run up a
bill” (2PC-R. 298-99). Mr. Marek argued that the new information
necessitated deposing Judge Kaplan because he “possesses critical
facts” and “[n]o one but Judge Kaplan possesses these facts”
On August 30, 1996, Mr. Marek also filed another motion to
disqualify Judge Kaplan (2PC-R. 307-12). In addition to the
allegations presented in his previous motion to disqualify and
its supplements, Mr. Marek relied upon Judge Kaplan’s deposition
testimony in which Judge Kaplan revealed his biases in sentencing
convicted defendants and his skepticism about pleas for mercy
(2PC-R. 308). Based upon Judge Kaplan’s sworn testimony, “Mr.
Marek faced a judge who was biased against him throughout the
penalty phase of his trial and during the pendency of his
collateral proceedings” (2PC-R. 308).
The State did not respond to the amended Rule 3.850 motion,
the motion to depose Judge Kaplan, or to the motion to disqualify
Judge Kaplan. On September 20, 1996, Judge Kaplan denied the
motion to disqualify as “legally insufficient” (Supp. 2PC-R.
133). On December 2, 1996, the State requested and received
another 90-day extension of time to file a response to Mr.
Marek’s Rule 3.850 motion (2PC-R. 147-49, 150).
On December 19, 1996, Mr. Marek filed another supplemental
motion to disqualify, this time based upon ex parte contact
Mr. Marek filed additional motions to compel (Supp. 2PC-R. 9
176-262 [filed 2/17/98]; Supp. 2PC-R. 333-419 [filed 7/21/99];
2PC-R. 633-38 [filed 10/12/00]; 2PC-R. 692-95 [filed 4/9/01]).
From 1996 into 2001, Mr. Marek litigated public records issues
(See 2PC-R. 533-670, 671-95, 700-01; Supp. 2PC-R. 162-64, 171-73,
176-302, 327-464, 465-67, 553-63, 569-78; 2PC-T. Vols. 1, 2).
During these proceedings, evidentiary development occurred
regarding compliance with public records laws. After this
litigation concluded, the court ordered Mr. Marek to amend his
Rule 3.850 motion by September 28, 2001 (2PC-T. 66).
between the judge and the State (Supp. 2PC-R. 151-55). On
January 15, 1997, Judge Kaplan issued an order finding the motion
“legally insufficient” but granting a recusal on the basis of his
friendship with Mr. Marek’s trial counsel (Supp. 2PC-R. 156-57).
On December 2, 1996, Mr. Marek had filed a Supplemental
Motion to Vacate raising a public records claim (Supp. 2PC-R.
139-46). On March 7, 1997, Mr. Marek filed a Motion to Compel
public records compliance (Supp. 2PC-R. 162-64). On March 5,
1997, the State requested that the order requiring it to respond
to the Rule 3.850 motion be held in abeyance because Mr. Marek
should be permitted to amend the motion once the public records
litigation was completed (Supp. 2PC-R. 158-61). The court
granted the State’s motion (Supp. 2PC-R. 169-70).9
On November 22, 1999, the court heard argument on Mr.
Marek’s motion to depose Judge Kaplan (2PC-T. 37-45). The State
opposed the motion, arguing that Mr. Marek’s counsel “has set
forth no reason whatsoever to depose Judge Kaplan” (2PC-T. 38).
The State argued that Mr. Marek was not entitled to explore Judge
Kaplan’s animosity toward Mr. Marek because “that is a personal
feeling of the Court which is not subject to go into a
deposition,” that Judge Kaplan had already been deposed in Lewis
regarding his CBS interview, that the CBS interview was not
relevant or material because Judge Kaplan had not mentioned Mr.
Marek by name in the interview, and that the issue regarding the
funding of special public defenders was moot in light of Rose v.
State, 675 So. 2d 567 (Fla. 1996), and Rivera v. State, 717 So.
2d 477 (Fla. 1998)(2PC-T. 39-40). Mr. Marek’s counsel argued
that Lewis supported the motion to depose Judge Kaplan, that the
Lewis deposition was specific to Mr. Lewis’ case and that the
Lewis deposition did “not cover and embrace what I would ask
regarding Mr. Marek” (2PC-T. 41). The court reserved ruling and
directed Mr. Marek’s counsel to “show me some reason to redepose
a judicial officer again, he’s already been deposed on the same
exact issues that were raised” (2PC-T. 44).
On February 10, 2000, Mr. Marek filed an Amended Motion To
Permit Discovery, renewing his request to depose Judge Kaplan
(Supp. 2PC-R. 468-87). The motion argued that the deposition
should be permitted because the Lewis deposition did not cover
matters specific to Mr. Marek’s case such as Judge Kaplan’s 1987
letter to the Parole Commission and his knowledge of how the
funding issue affected Mr. Marek’s case (Supp. 2PC-R. 469-70).
After another hearing on the motion to depose, the court
ordered the parties to file memoranda of law on the issue (See
Supp. 2PC-R. 505-06). In his memorandum, Mr. Marek explained,
“Mr. Marek was neither a party to the Lawrence Lewis action nor
represented during the deposition of Judge Kaplan” (Supp. 2PC-R.
493), and “Mr. Lewis had neither motive nor authority to assert
and protect Mr. Marek’s rights to develop his facially valid
claims of judicial bias at trial and in postconviction” (Supp.
2PC-R. 498). Mr. Marek protested the State’s arguments that the
deposition would place an “undue burden” on Judge Kaplan: “The
judge himself, with assistance from the Attorney General’s
Office, resisted efforts to expedite and consolidate the [Marek
and Lewis] cases and this necessitates a subsequent deposition”
(Supp. 2PC-R. 493). Mr. Marek summarized the specific areas of
inquiry to be pursued: Judge Kaplan’s bias against Mr. Marek and
convicted defendants, as demonstrated by his CBS interview, and
Judge Kaplan’s method of selecting and compensating special
public defenders in capital cases (Supp. 2PC-R. 493-94). Mr.
Marek also pointed out that during the Lewis deposition, “Judge
Kaplan repeatedly refused to answer questions regarding funding
and the conflict of interest claim” (Supp. 2PC-R. 494).
Mr. Marek noted that in prior collateral proceedings, Judge
Kaplan accepted the testimony of his “good friend,” trial counsel
Hilliard Moldof, in denying numerous ineffective assistance of
counsel claims (Supp. 2PC-R. 494-95). Thus, “Judge Kaplan
determined his close personal friend’s credibility and made fact
findings in that regard. The judge should be questioned
regarding his actual relationship with trial counsel, as his
order disqualifying himself is vague in this regard” (Supp. 2PCR.
495). The State opposed the request to depose Judge Kaplan,
calling the request “a fishing expedition” (Supp. 2PC-R. 504-09).
The court denied the motion to depose Judge Kaplan (2PC-R.
696-98). Regarding Mr. Marek’s contention that he should be
allowed to question Judge Kaplan about his 1987 letter to the
Parole Commission, the court relied upon Rivera v. State, 717 So.
2d 477, 481 (Fla. 1998), to rule that Judge Kaplan’s comments
“are not a sufficient indicator of bias and do not demonstrate
the ‘good cause’ necessary to take his deposition” (2PC-R. 697).
As to Mr. Marek’s request to depose Judge Kaplan regarding the
funding/conflict of interest issue, the court found the claim
meritless based upon Rivera, 717 So. 2d at 480 n.2 (2PC-R. 697).
Finally, the court ruled that Mr. Marek could not depose Judge
Kaplan regarding his comments in “Rough Justice” because “[t]he
deposition of Judge Kaplan in the Lewis case has been available
to Marek in the Lewis court file, and Marek has not presented
this Court with the deposition although referring to same in his
allegations, and has not presented good cause to this Court to
The transcript of Judge Kaplan’s deposition in Lewis had in 10
fact been filed with the clerk on October 3, 1996 (2PC-R. 440).
order Judge Kaplan’s deposition” (2PC-R. 698). 10
Mr. Marek’s amended Rule 3.850 motion was filed on September
27, 2001 (2PC-R. 702-841). The motion raised twelve claims: 1)
access to public records; (2) the conflict of interest created by
Broward County’s system for funding special assistant public
defenders and expert witnesses; (3) ineffective assistance
provided by trial counsel and the trial mental health expert at
the penalty phase; (4) jury recommendation was tainted by invalid
aggravators; (5)unconstitutional automatic aggravator; (6)
dilution of jury’s sense of responsibility for penalty; (7)
exclusion of mitigating evidence; (8) due process violated by
litigating prior Rule 3.850 motion under death warrant; (9) newly
discovered evidence regarding Wigley; (10) Judge Kaplan’s bias
tainted the trial, penalty phase and prior post-conviction
proceedings; (11) capital sentencing statute violated Sixth
Amendment; (12) lethal injection violated Eighth Amendment.
Mr. Marek filed an affidavit from his trial counsel:
3. In early 1993, I learned that legal fees paid
to special public defenders in capital cases and to
confidential mental health experts is taken from the
funds allocated to Broward County circuit court judges
for administrative costs.* * *
4. Until Judge Tyson revealed this conflict, I
was totally unaware of this budgeting provision. I was
astounded when Judge Tyson revealed this conflict. Had
I known in 1984 when I represented Mr. Marek, I would
have objected and placed the matter on the record.* * *
5. Moreover, this conflict certainly impacted on
Mr. Marek's defense. Judge Kaplan imposed caps on fees
payable to confidential mental health experts and to
court appointed counsel. I was aware of the cap. I
was also aware of Judge Kaplan's hesitancy to authorize
expenditures of money to assist a capital defendant.
As I explained in 1988, I did not request the
appointment of an investigator to assist me because "I
would have had to request the Court to appoint an
investigator for a very oblique reason." I did not
request the appointment of a co-counsel because "it
[was] not something that the Court [was] going to
readily agree to when I [could]n't give a very detailed
reason." It was clear to me that Judge Kaplan would
not appoint either an investigator or a co-counsel
simply because I felt it was necessary to adequately
investigate and prepare.
6. I knew Judge Kaplan very well. When I was a
public defender, I was assigned to Judge Kaplan's
docket. He knew my caseload when he appointed me to
represent Mr. Marek. He knew that at the time "I had
other files and I usually carr[ied] one or two murder
ones." I knew that he expected me to remain within the
cap, juggle my schedule, and not request other
assistance. I did my best to honor his expectations.
I did not know of the conflict described by Judge
7. Dr. Seth Krieger was appointed by Judge Kaplan
to conduct a confidential mental health evaluation of
Mr. Marek. Dr. Krieger was obligated to act within a
cap on his fees. The cap provided a maximum of one
hundred fifty dollars as compensation for his
evaluation of Mr. Marek. Mental health experts who did
not abide by the cap would not get appointed to do
(2PC-R. 711-13). On November 27, 2001, the State filed its
response (2PC-R. 842-939).
On February 19, 2002, the court heard argument on the Rule
3.850 motion (2PC-T. Vol. 4). Mr. Marek’s counsel explained that
the State’s response was erroneous regarding the procedural
history of Mr. Marek’s claims, particularly as to Claim X (2PC-T.
73-78). Counsel explained that Claim X was the essence of the
motion and that because of Judge Kaplan’s bias, “the sentencing
should be revisited [and] everything that was decided in the
[prior] 3.850 should be revisited” (2PC-T. 78-80). Relying upon
Thompson v. State, 731 So. 2d 1235 (Fla. 1998), and State v.
Lewis, 17th Judicial Circuit, No. 89-9095CF, both cases in which
the State had conceded the need for an evidentiary hearing on
Judge Kaplan’s bias, counsel argued that Claim X required an
evidentiary hearing (2PC-T. 83-87, 89). Counsel also argued that
Claims IX and II required an evidentiary hearing (2PC-T. 87-88).
The State conceded its response was erroneous regarding the
procedural history of Claim X and agreed to file a supplemental
response (2PC-T. 92, 99, 100). The State opposed an evidentiary
hearing on Claim X because “there’s been nothing presented that
evidences Judge Kaplan had any kind of bias in Mr. Marek’s case”
and because Judge Kaplan’s prior rulings had been reviewed by
this Court (2PC-T. 98-112). The State argued Lewis and Thompson
did not mean Mr. Marek’s claim required an evidentiary hearing
because in those cases “there was some nexus” (2PC-T. 100).
Mr. Marek’s counsel asserted that the State’s argument that
Mr. Marek had “not pled specific as to John Marek what Judge
Kaplan has said” missed the point because “the reason [Mr. Marek
has] not pled specific is because the deposition has not
occurred. And the state’s the party that’s blocked the
deposition” (2PC-T. 114-15). Counsel also argued that in all the
prior proceedings in Mr. Marek’s case, Judge Kaplan’s rulings
were “reviewed with a presumption that the presiding judge was
not biased,” but that “the question is here whether that
presumption is valid” (2PC-T. 119).
The State filed a supplemental response on April 2, 2002
(2PC-R. 940-1045). This response deleted the allegations from
the first response that the entirety of Claim X was procedurally
barred. Where the first response had asserted, “Marek has done
nothing to prosecute this issue [since 1994],” the modified
response stated, “In August 1996, Marek filed as Claim IX, the
Disqualification of Judge Kaplan. His arguments therein are
practically identical to those now argued in his 2001 motion”
(Compare 2PC-R. 931-32 with 2PC-R. 1031). The modified response
did add an argument that the aspect of Claim X relating to Judge
Kaplan’s 1987 letter to the Parole Commission was procedurally
barred because it was raised in Mr. Marek’s 1988 post-conviction
proceedings and was not pursued on appeal (2PC-R. 1029-30). The
issue was presented as Argument XIX in Mr. Marek’s prior Rule
3.850 appeal. Mr. Marek filed a reply to the State’s modified
response (2PC-R. 1046-60).
On September 30, 2003, the circuit court summarily denied
Rule 3.850 relief (Supp. 2PC-R. 650-64). The court ruled, “this
Court finds that the Defendant’s claims fail to state facts which
must be resolved in an evidentiary hearing, fail to state grounds
for relief that are cognizable in this proceeding, and that his
motion may be resolved as a matter of law” (Supp. 2PC-R. 651).
The court denied an evidentiary hearing on Claim X because “If,
in fact, there is sufficient bias [on the part of Judge Kaplan]
to warrant any relief, the matter may be decided on the basis of
the documents included in this record” (Supp. 2PC-R. 660). The
court then discussed only Judge Kaplan’s deposition in Lewis and
Judge Kaplan’s explanations in that deposition for the comments
he made to CBS (Supp. 2PC-R. 660-61). The judge stated he had
reviewed Mr. Marek’s submissions and found “nothing to indicate
he did not receive a fair trial” (Supp. 2PC-R. 661). Therefore,
the court stated, “the issues before this Court are whether
[Judge Kaplan’s] statements indicate bias at sentencing, and
whether or not the Defendant received a full and fair review of
his post-conviction motions” (Supp. 2PC-R. 661). The court found
Lewis v. State, 838 So. 2d 1102 (Fla. 2002), Thompson v. State,
731 So. 2d 1235 (Fla. 1998), and Porter v. State, 723 So. 2d 191
(Fla. 1998), “distinguishable from Marek’s case”(Supp. 2PC-R.
662). The court concluded that no bias infected Mr. Marek’s
sentencing because it found “no case law where impermissible bias
was found on the basis that the trial judge is known to be
‘tough’ in sentencing” (Supp. 2PC-R. 662). The court also
concluded that no bias infected Mr. Marek’s sentencing or prior
post-conviction proceedings because “the trial judge’s sentence
in the case at bar, as well as his rulings on previous motions
for post-conviction relief, have been examined and upheld by the
Florida Supreme Court” (Supp. 2PC-R. 662).
The court ruled that Claims III through VII were
procedurally barred because they were raised in Mr. Marek’s 1988
Rule 3.850 motion (Supp. 2PC-R. 653-56). The court denied Claim
VIII, finding that Mr. Marek had not shown how he was
“prejudiced” by being forced to litigate his first Rule 3.850
motion under a death warrant (Supp. 2PC-R. 657-58).
The court denied Mr. Marek’s motion for rehearing (Supp.
2PC-R. 1262, 605-49). Mr. Marek appealed (2PC-R. 1264-65). This
Court issued a summary order affirming the denial of the motion
to vacate on June 16, 2006, specifically indicating that this
Court found “no merit to any of Marek’s claims.”
On May 11, 2007, Mr. Marek filed his third Rule 3.851 motion
in circuit court. On June 14, 2007, the circuit court ordered
the State to file a response to the motion. On July 2, 2007, the
State served its Response. The circuit court conducted a hearing
on the motion on June 18, 2008, and granted Mr. Marek leave to
file an amendment to the Rule 3.851 motion within 30 days. On
July 18, 2008, Mr. Marek filed his amended Rule 3.851 motion. On
August 18, 2008, the State served its Response to the amended
motion. The State attempted to call the case up for a status
hearing on January 30, 2009. However, the hearing was delayed
until February 6, 2009. In light of supplemental authority
served by the State at that time, Mr. Marek’s counsel requested
the opportunity to address the supplemental authority in a
memorandum of law. The court granted the request and gave Mr.
Marek until February 23, 2009, to submit the memorandum. The
memorandum was in fact filed on February 23, 2009.
On April 20, 2009, the governor signed a death warrant
scheduling Mr. Marek’s execution for May 13, 2009. The governor
signed Mr. Marek’s death warrant after consulting with Ms.
Snurkowski, Assistant Deputy Attorney General, who represents the
State in these proceedings, and after obtaining mental health
records concerning Mr. Marek from the Office of the State
Attorney. Despite the pendency of Mr. Marek’s Rule 3.851 before
this Court, Ms. Snurkowski successfully encouraged the governor
to sign a death warrant for Mr. Marek. Following the signing of
the death warrant, the circuit court entered an order denying Mr.
Marek’s pending Rule 3.851 motion on April 23, 2009.
On April 27, 2009, Mr. Marek filed a motion for
rehearing/motion to amend. Several hours later, the State filed
a response. The motion was heard by the circuit court at a
hearing conducted on the afternoon of April 27 . Later in the th
Mr. Marek notes at the outset that this Court addressed a 11
similar claim in Rutherford v. State, 940 So. 2d 1112, 1117 (Fla.
2006). In addressing the merits of the claim and denying relief,
this Court indicated that Rutherford had failed to demonstrate
how the arbitrary factors outlined by the ABA Report prejudiced
him. Mr. Marek presents this claim herein because he believes
that he can demonstrate the prejudice that this Court found
necessary, but wanting in Rutherford.
afternoon, the circuit court entered an order denying the motion.
STANDARD OF REVIEW
The claims presented in this appeal are constitutional
issues involving mixed questions of law and fact and are reviewed
de novo, giving deference only to the trial court’s factfindings.
Stephens v. State, 748 So. 2d 1028, 1034 (Fla. 1999); State v.
Glatzmayer, 789 So. 2d 297, 301 n.7 (Fla. 2001). The lower court
denied an evidentiary hearing, and therefore the facts presented
in this appeal must be taken as true. Peede v. State, 748 So. 2d
253, 257 (Fla. 1999); Gaskin v. State, 737 So. 2d 509, 516 (Fla.
1999); Lightbourne v. Dugger, 549 So. 2d 1364 (Fla. 1989).
ARGUMENT 1: MR. MAREK’S SENTENCE OF DEATH VIOLATES THE EIGHTH AND
FOURTEENTH AMENDMENTS BECAUSE IT IS THE RESULT OF A PROCESS THAT
PERMITTED AN ARBITRARY AND CAPRICIOUS IMPOSITION OF A SENTENCE OF
Over thirty years ago, the United States Supreme Court
announced that 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).
At issue in Furman were three death sentences: two from Georgia
and one from Texas. The Petitioners relying upon statistical
analysis of the number of death sentences being imposed and upon
whom they were imposed argued that the death penalty was cruel
and unusual within the meaning of the Eighth Amendment. Five
justices agreed, and each wrote a separate opinion setting forth
his reasoning. Each found the manner in which the death schemes
were then operating to be arbitrary and capricious. Furman, 408
U.S. at 253 (Douglas, J., concurring) (“We cannot say from facts
disclosed in these records that these defendants were sentenced
to death because they were black. Yet our task is not restricted
to an effort to divine what motives impelled these death
penalties. Rather, we deal with a system of law and of justice
that leaves to the uncontrolled discretion of judges or juries
the determination whether defendants committing these crimes
should die or be imprisoned. Under these laws no standards govern
the selection of the penalty. People live or die, dependent on
the whim of one man or of 12.”); Id. at 293 (Brennan, J.,
concurring) (“it smacks of little more than a lottery system”);
Id. at 309 (Stewart, J., concurring) (“[t]hese death sentences
are cruel and unusual in the same way that being struck by
lightning is cruel and unusual”); Id. at 313 (White, J.,
concurring) (“there is no meaningful basis for distinguishing the
few cases in which it is imposed from the many cases in which it
is not”); Id. at 365-66 (Marshall, J., concurring)(“It also is
evident that the burden of capital punishment falls upon the
poor, the ignorant, and the underprivileged members of society.
It is the poor, and the members of minority groups who are least
able to voice their complaints against capital punishment. Their
impotence leaves them victims of a sanction that the wealthier,
better-represented, just-as-guilty person can escape. So long as
the capital sanction is used only against the forlorn, easily
forgotten members of society, legislators are content to maintain
the status quo, because change would draw attention to the
problem and concern might develop.”)(footnote omitted). As a
result, 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.
However, it is now clear that in Mr. Marek’s case arbitrary
factors have infected the process. His execution will be as
arbitrarily imposed as if he had been “struck by lightning”. Id.
at 309 (Stewart, J., concurring) (“[t]hese death sentences are
cruel and unusual in the same way that being struck by lightning
is cruel and unusual”).
B. Disparity in treatment of Mr. Marek and his codefendant.
When the State’s evidence and argument in Wigley’s case is
compared to the evidence and argument in Mr. Marek’s case, the
difference in the sentencing result can only rest on arbitrary
factors. It is as if a lottery was used to decide who got the
death sentence. It is as if Mr. Marek drew the short end of the
The prosecutor at Wigley’s sentencing acknowledged that his
evidence against Mr. Marek was thinner and more circumstantial.
He expressed concern that he would not be able to obtain a
conviction (WR. 1247-48). So when Mr. Marek’s case went to
trial, the prosecutor changed his position as to who was the more
culpable defendant. The evidence was tailored and shifted. And,
the prosecutor ignored the evidence at Wigley’s trial, that Mr.
Marek was the one speaking to law enforcement because Wigley and
Mr. Marek had decided beforehand that Mr. Marek would do the
talking. Instead, the prosecutor argued that Mr. Marek’s actions
established that he was the dominant of the two and the one who
was in charge.
The State’s use of inconsistent theories in Mr. Marek’s
trial and his co-defendant’s trial resulted in an arbitrary
sentencing process in violation of the Eighth Amendment and the
due process clause of the Fourteenth Amendment. This is a
failure to “assure consistency, fairness, and rationality in the
evenhanded operation of the state law.” Proffitt v. Florida, 428
U.S. 242, 259-60 (1976). The State’s case was different in the
two cases, the arguments in support of death was different, and
the juries were different. The resulting selection of Mr. Marek
for a death sentence while Wigley received a life sentence cannot
be described as “the even handed operation of the state law.”
In Raleigh v. State, 932 So. 2d at 1066, this Court addressed
the recent United States Supreme Court decision in Bradshaw v.
Stumpf, 545 U.S. 175 (2005), and said:
In Stumpf, the state first tried Stumpf under the
theory that he was the principal actor in the shooting
death of the victim. Id. at 2403-04. Then, based upon
new evidence that came to light after Stumpf had been
tried and convicted, the state tried Stumpf’s
codefendant under the inconsistent theory that the
codefendant was the principal actor in the shooting
death of the same victim. Id. The United States
Supreme Court held that the use of such inconsistent
theories warranted remand to determine what effect this
may have had on Stumpf’s sentence and to determine
whether the death penalty violated due process.
In denying relief in Raleigh, this Court found no error because
in Raleigh’s trial and his co-defendant’s trial:
the State did not take an inconsistent position as the
prosecution did in Stumpf. In Figueroa’s trial, the
State never contradicted the position it took at
Raleigh’s trial regarding Raleigh’s culpability. It
did not change course by seeking to prove that
Figueroa, not Raleigh, was the principal actor in
Eberlin’s death. Therefore, the due process concerns
raised in Stumpf do not apply.
Raleigh, 932 So. 2d at 1066.
Moreover, it is clear that Mr. Marek was prejudiced by the 12
State’s actions. In affirming Mr. Marek’s death sentence on
direct appeal, this Court stated:
The evidence in this case clearly established that
appellant, not Wigley, was the dominant actor in this
criminal episode. Both appellant and the victim’s
traveling companion testified that appellant talked to
the two women for approximately forty-five minutes
after he stopped, purportedly to aid them. During most
of this conversation, Wigley remained in the truck.
When Wigley got out of the truck to join appellant, he
remained silent. Appellant, not Wigley, persuaded the
victim to get in the truck with the two men. That
evidence was reinforced by the testimony of three
witnesses who came into contact with the appellant and
Wigley on the beach at approximately the time of the
murder, which indicated that appellant appeared to be
the more dominant of the two men. Finally, only
appellant’s fingerprint was found inside the
observation deck where the body was discovered. This
evidence, in our view, justifies a conclusion that
appellant was the dominant participant in this crime.
Marek v. State, 492 So. 2d 1055, 1058 (Fla. 1986). However at
Wigley’s trial, the State argued that this evidence proved that
Wigley was the dominant actor and merited a death sentence. Of
course, this Court and Mr. Marek’s appellate counsel were unaware
of the what transpired at Wigley’s trial because the Wigley
record was not before the Court.
Here, unlike the situation in Raleigh, it is clear that the
State took inconsistent positions regarding the culpability of
Mr. Marek and his co-defendant, Raymond Wigley. It is also 12
clear why the prosecutor took the inconsistent positions since he
explained his fear that the evidence against Mr. Marek was thin
and merely circumstantial (WR. 1247-48). It is clear that the
prosecutor’s conduct was a product of a desire to win.
In Berger v. United States, 295 U.S. 78, 88 (1935), the
United States Supreme Court explained that a prosecutor is:
the representative not of an ordinary party to a
controversy, but of a sovereignty whose obligation
to govern impartially is as compelling as its
obligation to govern at all; and whose interest,
therefore, in a criminal prosecution is not that
it shall win a case, but that justice shall be
Most recently, the U.S. Supreme Court has stated:
The right to a fair trial, guaranteed to state criminal
defendants by the Due Process Clause of the Fourteeenth
Amendment, imposes on States certain duties consistent
with their sovereign obligation to ensure “that ‘justice
shall be done’” in all criminal prosecutions.
Cone v. Bell, — U.S. — (decided April 28, 2009), Slip Op. at 1.
Here, the prosecutor disregarded this principle and instead
did whatever he had to in order to secure a death sentence. This
violated due process and led to a death sentence for Mr. Marek
that “smacks of a little more than a lottery system.” Furman at
293 (Brennan, J., concurring).
The circuit court in denying Mr. Marek’s motion for
rehearing/motion to amend motion to vacate said:
As to Defendant’s claim (1) of disparate treatment of the
co-defendant, this Court finds that the claim is without
merit. In Marek v. State, 462 So. 2d 1054, 1058 (Fla.
1986), the Florida Supreme Court already decided the
issued against the Defendant. Additionally, the
Defendant’s reliance on Bradshaw v. Stumpf, 545 U.S. 175
(2005) and Raleigh v. State, 932 So. 2d 1054 (Fla. 2006)
is misplaced. The law of the case as set forth in Marek,
supra, controls as does the law in the case of Gore v.
State, 964 So. 2d 1257 (Fla. 2007), cert. den. 128 S.Ct.
1250 (U.S. Fla. 2008).
In its decision in Cone v. Bell (announced on April 28, 13
2009), the United States Supreme Court made it clear that a
procedural bar premised upon res adjudicate or law of the case is
not valid and cannot preclude merits consideration of the federal
Order of April 27, 2009, at 1. However, this Court did not 13
have before it at the time of the direct appeal the Wigley record
that included the trial transcript. Without access to the Wigley
transcript showing the prosecutor’s argument and the evidence
presented by the State, this Court could not have considered it.
On direct appeal, this Court was merely addressing whether the
life sentence for Wigley warranted a life sentence for Mr. Marek
in light of the evidence at Mr. Marek’s trial.
Mr. Marek’s has presented a Furman claim in which he cites
to the specific prejudice that he suffered as this Court
indicated in Rutherford v. State, 940 So. 2d 1112, 1117 (Fla.
2006), was required to establish a basis for relief. Under
Furman, Mr. Marek’s sentence of death cannot stand. It is a
product of system that has failed to assure “rationality in the
evenhanded operation of the state law.” Proffitt v. Florida, 428
U.S. at 259-60.
C. Failure to properly apply Strickland v. Washington as
subsequent cases from the United States Supreme Court
In making his argument that he can demonstrate the prejudice
that this Court indicated in Rutherford v. State was a necessary
component to a Furman claim, Mr. Marek relied upon the arbitrary
This Court has acknowledged its failure to properly apply 14
aspects of Strickland in a number of cases. Stephens v. State,
748 So. 2d 1028, 1032 n. 2 (Fla. 1999). Despite this
acknowledgment, this Court has refused to correct its error and
reconsider those cases in which the error had been committed.
Those defendants who have been deprived of the benefit of
Strickland have been arbitrarily denied the opportunity to have
the ineffective assistance of counsel claims judged according to
the proper constitutional standard.
refusal to apply the standards of Strickland v. Washington, 466
U.S. 668 (1984), as those standards have been defined in
Williams v. Taylor, 529 U.S. 362, 396 (2000); Wiggins v. Smith,
539 U.S. 510, 527 (2003); Rompilla v. Beard, 545 U.S. 374 (2005).
In those decisions, the Supreme Court made it clear that the
rulings therein related back to Strickland and that the relief
granted in those cases was required by Stickland. Under those 14
decisions, there can be no question but that those decisions are
applicable to capital trials conducted in 1984.
Moreover, those decisions make it clear that Mr. Marek’s
trial counsel’s failure to investigate his family background was
deficient performance. Mr. Marek’s belief that the family
members would not have something helpful to say does not relieve
trial counsel of the duty to investigate and find out what
mitigation is available. Those cases make it equally clear that
the fact that an investigation may turn up some unfavorable
information does not preclude the finding of deficient
performance or prejudice. The proper analysis requires
consideration of whether the favorable evidence that trial
counsel failed to uncover because he failed to investigate
undermines confidence in the outcome. It would be for the
sentencer to ultimately decided whether the unfavorable
information outweighed the significant and compelling mitigation.
Here, there is no question that Mr. Marek’s counsel did not
investigate. Under Williams, Wiggins and Rompilla, counsel’s
performance was deficient. This reality can only be ignored by
refusing to recognize that those decisions described trial
counsel’s obligation in 1984 and refusing to recognize that those
decisions are inconsistent with this Court’s affirmance in 1989
of the denial of Mr. Marek’s ineffective assistance of counsel
The mitigation that was readily available had any effort to
investigate been undertaken was compelling. Mr. Marek was born
in Germany to an emotionally unstable mother who took large
amounts of tranquilizers and diet pills during her pregnancy and
to a largely absentee father (1PC-T. 79). At the age of eight or
nine months, John overdosed to the point of convulsions when his
brother fed him some of his mother's medication (1PC-T. 107-08,
211-12). Doctors said his mind would forever be affected, and
his childhood development of such skills as walking and talking
was markedly slow (1PC-T. 88, 213-14). Labeled a "retard"
throughout his childhood, John was rejected by his disappointed
father and inadequately fed and clothed by his neglectful mother
(1PC-T. 93-94). Unable to speak intelligibly and suffering from
constant enuresis, he was ridiculed by his peers. His parents
divorced when he was a couple of years old.
Mr. Marek’s mother remarried an alcoholic who spent the
family money on liquor and who continued the rejection John had
experienced since he was a baby. John was a loving child and
tried again and again to seek affection, only to be rejected
again and again. After a family altercation in which John came
close to being shot by his stepfather, John's mother gave up her
children. John's brothers went to live with their father, who
refused to take John--age 9, labeled a “retard”, unable to speak
At age nine, John Marek was placed in the custody of the
Tarrant County, Texas, Child Welfare Unit (1PC-R. D-Ex. 1, Tab 2,
p. 3). Psychological testing done at that time revealed John was
not retarded but of normal intelligence. However, psychologists
reported John had not been able to develop normally because of
cerebral dysfunction, deep feelings of inadequacy, and emotional
deprivation. At the age of ten, John Marek told a mental health
evaluator, “He wants to change from being a boy who is sad all
the time to being a boy who is happy all the time” (1PC-R. D-Ex.
1, Tab 4, p. 6). Over the ensuing years, psychological and child
welfare reports continued to note John's emotional difficulties,
his frustration and anger at his natural parents and stepfather,
his learning disabilities resulting from psychological and
neurological problems, his enuresis, and his feelings of
inadequacy and rejection (PC-R. D-Ex. 1, Tab 4).
After passing through at least four foster families, at age
12, John was sent to a residential treatment facility, paid for
by his father's insurance (1PC-R. D-Ex. 1, Tab 5). John received
therapy and responded well, beginning to exhibit some emotional
stability and academic progress. However, when the insurance
company terminated the funding for this placement, John was
returned to his foster family, despite the treatment facility's
warnings that John's emotional and neurological disabilities
required continued, intensive residential treatment, and
prediction that removing John from residential treatment would
destroy all the progress he had made (1PC-R. D-Ex. 1, Tab 8, pp
27, 30, 34, 38-39).
After living briefly with his foster family, John was again
placed in an institution, where psychological testing revealed
that his previous progress had been lost (1PC-R. D-Ex. 1, Tab 7).
His scores on intellectual testing had plummeted, the result,
evaluators noted, of organic brain damage and emotional
disabilities. After about two years in this institution, John
was again returned to his foster parents, who washed their hands
of him four months later (1PC-R. D-Ex 1, Tab 29).
Following a brief stay in a shelter, John was placed in yet
another foster family (PC-T. 239). He was then seventeen years
old, and heavily involved in drug use. A few months later, John
was convicted of credit card abuse and placed on probation.
After John violated his probation, a competency evaluation noted
his limited intellectual capacity, possibly resulting from brain
dysfunction, and recommended drug treatment in a structured
environment, stating that intervention could well reshape John's
behavior. No treatment was provided, and John was sentenced to
serve two years in prison (1PC-R. D-Ex 1, Tab 30). After his
release, with nowhere to go, John resumed his drug and alcohol
abuse. At age 21, he traveled to Florida with Raymond Wigley.
Drinking heavily, the two were arrested for murder shortly after
arriving in Florida.
Mr. Marek's jury did not hear any of this evidence because
trial counsel did not investigate and did not prepare for the
penalty phase. Counsel testified that he made no effort to
discover whether he could obtain records from Texas regarding Mr.
Marek having been in custody of the state as a child (1PC-T.
317), although he knew Mr. Marek had been in foster care (1PC-T.
321-22), and had information that when Mr. Marek was a toddler,
“his natural father left the family and his mother remarried,
this time to an abusive alcoholic. At age nine [Mr. Marek] was
turned over to the State [of Texas] and lived in a variety of
foster homes until striking out on his own at age 17” (1PC-R. DThis
quote is from Dr. Krieger’s report which Judge Kaplan 15
refused to permit the jury to hear.
Ex 1, Tab 10). Thus, counsel did not find Texas court records 15
which said Mr. Marek was declared “a dependent child based on
neglect” (1PC-T. 326). Counsel made no effort to obtain Texas
prison records (1PC-T. 336) or court records (1PC-T. 337),
although he knew that Mr. Marek had been in prison in Texas (1PCT.
336), and had a print-out in his file which revealed Mr.
Marek's Texas inmate number (1PC-R. D-Ex 1, Tab 30). Counsel
made no effort to check out the address on Mr. Marek's Texas
driver's license (1PC-T. 320), although he had a copy of it in
his files (1PC-T. 319).
Had counsel taken any one of these simple steps, the
information detailed above would have flooded in. For example,
records from the Texas Adult Probation Department contained a
life history of Mr. Marek (1PCR. D-Ex 1, Tab 19). This life
history explained that Mr. Marek was placed in the custody of the
Texas Department of Human Resources in October, 1970, and listed
the names of the special schools Mr. Marek attended. With this
one document, counsel would have had enough specific information
to unearth the 99 pages of documents contained in the files of
the Texas Department of Human Services (1PC-r. D-Ex 1, Tab 29).
Similarly, had counsel checked the address on Mr. Marek's
driver's license, he would have discovered the address was that
Counsel testified that he got the “impression” that Mr. 16
Marek did not want him to go to Texas (1PC-T. 333), although Mr.
Marek did not refuse to cooperate: “he dealt with me as much as I
wanted to. . . .[He was] there to answer my questions” (1PC-T.
334). Counsel testified that he had difficulty in getting Mr.
Marek to understand what was at stake because Mr. Marek was
generally lethargic and apathetic (1PC-T. 333). Although Mr.
Marek “wanted the end [of the trial] to be positive,” he did not
understand the process necessary to reach that end: “I don't
think he saw the short-term goals. I don't think he saw each
little task as having a good effect upon the whole thing” (1PC-T.
335). Counsel was so concerned about his lack of rapport with
Mr. Marek that he sought the assistance of a mental health
expert: “I want[ed] the doctor to give me an idea psychologically
what I was dealing with” (1PC-T. 338).
of Sallie and Jack Hand, Mr. Marek's last foster parents(1PC-T.
239-41), who lived at the same address at the time of the trial
(1PC-T. 245). They were never contacted by trial counsel (1PC-T.
244-45, 320, 322-33). Counsel testified he never “independently”
checked out the address on Mr. Marek's driver’s license and
therefore he had “[n]o idea” whether that address would have led
to anyone (1PC-T. 320). He also testified he “[o]bviously” did
not know what information the foster parents would have led him
to because “I never talked to them” (1PC-T. 323). 16
Counsel testified that investigation was not conducted in
part because of a shortage of time and money (1PC-T. 330-31). In
order to investigate, counsel “would have had to request the
Court to appoint an investigator for a very oblique reason. I
couldn't have given any real reason for it” (1PC-T. 318).
It was clear at the 1988 hearing that counsel did not
investigate Mr. Marek's background for the penalty phase, and
Further, Judge Kaplan's order denying relief and his letter 17
to the Parole Commission show that future dangerousness weighed
heavily when Judge Kaplan sentenced Mr. Marek to death and denied
his Rule 3.850 motion. However, Florida does not permit
consideration of future dangerousness in a capital case.
Kormondy v. State, 703 So. 2d 454, 463 (Fla. 1997). Judge
Kaplan's comment suggests that contrary to the requirement that
courts presume that juries follow the law, Weeks v. Angelone, 120
S.Ct. 727, 733 (2000), in denying Rule 3.850 relief, Judge Kaplan
presumed that the jury would disregard the law.
Judge Kaplan so ruled (1PC-T. 488). However, Judge Kaplan
concluded that “I think Moldof would have been ineffective if he
would have called these people. I think he would have” (1PC-T.
487). Yet, Moldof had specifically testified otherwise in 1988.
He testified that had he discovered the readily available
information summarized herein, he would have presented it at the
penalty phase (1PC-T. 395-96). Judge Kaplan said that the
evidence of severe abuse, neglect, abandonment, and brain damage
would make “any reasonable person want to make sure that Mr.
Marek never ever walk the streets again” (1PC-T. 488). However 17
as Williams, Wiggins, and Rompilla make clear, this was not the
proper analysis to employ in considering whether Mr. Marek was
prejudiced by counsel’s failure to investigate.
Defense counsel had an “obligation to conduct a thorough
investigation of the defendant’s background.” Williams v.
Taylor, 529 U.S. 362, 396 (2000); Rompilla v. Beard, 2005 U.S.
LEXIS 4846 (June 20, 2005). Further, “Strickland does not
establish that a cursory investigation automatically justifies a
The ABA standards establish that Mr. Marek’s counsel’s 18
performance did not measure up to prevailing professional norms.
In Wiggins, the Court found that counsel’s performance “fell
short of the standards for capital defense work articulated by
the American Bar Association (ABA)--standards to which we long
have referred as ‘guides to determining what is reasonable.’” 123
S. Ct. at 2536-37, quoting, Strickland, 466 U.S. at 688, and
Williams v. Taylor, 529 U.S. 362, 396 (2000). Thus, “the ABA
standards for counsel in death penalty cases provide the guiding
rules and standards to be used in defining the ‘prevailing
professional norms’ in ineffective assistance cases.” Hamblin v.
Mitchell, 354 F.3d 482, 486 (6th Cir. 2003).
The duty to investigate is heightened, not limited, when a 19
defendant is emotionally unable to assist trial counsel or when
counsel has the “impression” that the defendant did not want
counsel to pursue certain matters. “ABA and judicial standards
do not permit the courts to excuse counsel’s failure to
investigate or prepare because the defendant so requested.”
Hamblin, 354 F.3d at 492. “The investigation for preparation of
the sentencing phase should be conducted regardless of any
tactical decision with respect to sentencing strategy. Rather, a
reviewing court must consider the reasonableness of the
investigation said to support that strategy.” Wiggins v. Smith,
539 U.S. 510, 527 (2003). Here, as in Wiggins and Williams,
trial counsel had leads to information but did not follow those
leads. Rather, “counsel abandoned [his] investigation of [Mr.
Marek’s] background after having acquired only rudimentary
knowledge of his history from a narrow set of sources.” Wiggins,
539 U.S. at 524. As in Wiggins, “any reasonably competent 18
attorney would have realized that pursuing these leads was
necessary to making an informed choice among possible defenses,
particularly given the apparent absence of any aggravating
factors in petitioner’s background.” Id. at 525. 19
initial assertion by the client that mitigation is not to be
offered.” ABA Guidelines for the Appointment and Performance of
Counsel In Death Penalty Cases 11.4.1© (1989). The commentary to
Guideline 11.4.1 explains: “Counsel’s duty to investigate is not
negated by the expressed desires of a client. . . . The attorney
must first evaluate the potential avenues of action and then
advise the client on the merits of each. Without investigation,
counsel’s evaluation and advice amount to little more than a
guess” (footnotes omitted). Further, “[c]ounsel and support
staff should use all available avenues including signed releases,
subpoenas, and Freedom of Information Acts, to obtain all
necessary information.” ABA Guidelines 11.4.1(D)(7). In
discussing client contact, the Guidelines explain, “Any
reluctance on the part of the client to disclose needed
information must be overcome, not a quick or easy task.” ABA
Guidelines 11.4.2 (commentary) (footnote omitted).
In Williams, the Court found counsel ineffective for 20
failing to present records even though they contained some
negative information about Mr. William's past. In Mr. Marek's
case, the records arguably contained no “negative aspects.”
Trial counsel did not make a strategic decision not to
present the records which would illustrate a tortured childhood
characterized by neglect, abandonment and severe psychological
and emotional problems because, as in Wiggins and Williams,
counsel failed to obtain the crucial records. Thus, Judge
Kaplan's finding that the records describing Mr. Marek's
childhood would have provided “negative aspects” was in error,
and counsel’s failure to discover these records constituted
deficient performance. According to counsel, due to funding 20
constraints, he felt hamstrung and unreasonably failed to collect
necessary documentary evidence which should have presented.
Counsel did not make a strategic decision not to introduce
mitigating evidence. Counsel tried to introduce the mitigating
evidence he did have available. Counsel attempted to introduce
Dr. Krieger’s report, but the trial court ruled it inadmissible.
Counsel also wanted the jury to consider no significant criminal
history mitigating factor, but he was thwarted by the State.
Pursuing that mitigator would have opened the door to the only
negative bit of information regarding Mr. Marek's past--his
conviction for credit card abuse. Finally, counsel testified
that he would have presented the testimony of Mr. Marek's mother
and documents regarding Mr. Marek's mental health and foster care
history if such evidence had been available (1PC-T. 395-96).
“When viewed in this light, the ‘strategic decision’ . . .
invoke[d] to justify counsel’s limited pursuit of mitigating
evidence resembles more a post-hoc rationalization of counsel’s
conduct than an accurate description of [his] deliberations prior
to sentencing.” Wiggins, 539 U.S. at 526-27.
Had counsel performed reasonably, a wealth of compelling
mitigation would have come forth. Literally from birth, Mr.
Marek's life was one of abandonment, abuse, and neglect. This
pathetic story emerges from voluminous foster care records, from
Mr. Marek's natural parents who abandoned and neglected him, from
foster parents who failed to provide the stability required by a
psychologically and organically damaged child, and from numerous
psychological evaluations beginning when Mr. Marek was only nine
John Marek was born September 16, 1961, to Margaret and 21
Jesse William Grimm; years later, his name was changed from Grimm
to Marek. Margaret and Jesse had been married in 1956. Jesse
was a U.S. Army serviceman. Their first child, Mark William
Grimm, was born in 1957; their second, J. Michael Grimm, in 1959
(1PC-T. 79-80, 209-10). At the time of John's birth, Jesse was a
sergeant and stationed in Germany. The pregnancy was a difficult
one: “My body tried to abort him. And I had to spend a lot of
time in bed” (1PC-T. 79). During the pregnancy, Margaret took
large amounts of diet pills, nerve medications and even birth
control pills (1PC-T. 80-81, 210).
After John's birth, Margaret's emotional problems continued.
“[She] was the type of mother that cared more for herself and her
father and grandmother in the states than she did for the rest of
the family” (1PC-T. 210). She kept taking a plethora of
medication, from a shoe box filled with birth control pills,
darvon, valium, diet pills, and sleeping pills (1PC-T. 107-08).
When John was eight or nine months old, his older brother got
into the shoe box and fed pills to himself and John. On the way
to the hospital, the boys went into convulsions and became “more
out than conscious” (1PC-T. 103). John was most affected because
he was smaller and had been given more pills, and the doctors
said his “mind would be affected by it” (1PC-T. 108, 211-12).
Following this drug overdose there were obvious changes in
John's behavior. His father testified that John “could never
sleep,” cried night and day, did not learn to crawl or walk until
much later than normal, and had “slurred speech.” John also
could not learn how to ride a tricycle or bicycle or how to catch
and throw a ball without a great deal of help. “[E]ven into his
first years of school he was never able to do what the other
children were doing at three or four years old.” John’s father
thought he was retarded and requested extra help for him. John
was “[v]ery, very different in every way” from other kids, not
even playing with other kids but “always off to the side doing
something else or just watching (1PC-T. 213-14).
John was labeled retarded. His mother could not stand to be
around him and chased him away from her (1PC-T. 214). Jesse
blamed Margaret for John's condition and questioned whether he
had fathered John. “[H]e couldn't accept that he could have a
child that was like that” (1PC-T. 92). Jesse “was disappointed
that John was a special education child and mostly he just did
nothing with John. Ignored him” (1PC-T. 85). John was aware of
this and asked Margaret “why Daddy didn't play with him. Why
Daddy didn't do anything with him. Why Daddy pushed him away”
(Id.). Margaret also admitted, “I love John but I was neglectful
years old. All of this information is mitigating; none of it 21
[sic] of him” (1PC-T. 85).
John's problems grew worse. He reacted abnormally to
events, did not understand cause and effect, and “never could
have a good time.” Other kids made fun of him because of his
speech impediment. He went to special education, never to a
regular school, and was evaluated as “trainable but not
educable.” He had a bladder control problem. He lacked
imagination, but “[h]e showed a lot of love. He was precious
when he was little (1PC-T. 87-88).
In 1968, Margaret and Jesse divorced. Margaret kept the
children. In 1970, Margaret remarried to Arlis Bagley, an
alcoholic and “functional illiterate” (1PC-T. 93). Bagley used
the family’s food, rent and utility money to buy alcohol. He
treated the boys “a hundred times worse than what their father
had.” John got the worst of it because he “was the most
forgiving.” While the other boys quickly learned to stay away
from Bagley, “John always tried again and again and be rejected
again and again. He was a very loving child.” Bagley usually
told John “to get away, retard” (1PC-T. 93-94).
During her marriage to Bagley, while the family lived in
Texas, Margaret decided to give up her children. Margaret had
lost her dishwashing job because Bagley showed up at her
workplace drunk, and the family had nothing. One night, Bagley
got angry because the car would not start and fired a gun into
the car as John walked between Bagley and the car. Hysterical,
Margaret called Jesse and told him he had to take the boys.
Jesse agreed to take three of the boys, but not John because he
did not believe that John was his. Bagley told John his father
would not take him because he was retarded. Child welfare took
John away (1PC-T. 97-100).
The Tarrant County Child Welfare Unit obtained custody of
John on October 21, 1970. He was placed in foster care. He was
enrolled in Saginaw Elementary School on November 16, 1970, and
was placed in a class for the emotionally disturbed (1PC-R. D-Ex
1, Tab 29). School records note that John was “put in foster
home due to rejection by new stepfather.” His teacher commented,
“John is in need of a great deal of love and understanding.
Needs to feel success and acceptance” (1PC-R. D-Ex 1, Tab 2). On
November 30, 1970, John was withdrawn from school when he was
moved to a new foster home (Id.).
was presented to Mr. Marek's sentencing jury.
The available records contain evidence of Mr. Marek’s mental
condition. As a boy, he was labeled “retarded” and ridiculed as
At one point, John was placed in a good foster home and a 22
good school for children with learning disabilities and made very
good progress with his speech. However, the foster mother's ill
health led to his placement with new foster parents who enrolled
him in a school where he attended a special class for children
with cerebral dysfunction (1PC-R. D-Ex 1, Tab 4, p. 8).
being a “retard,” but he was not retarded. In December 1970,
when John was nine years old, a psychological evaluation revealed
that he was not retarded as had been believed. His verbal I.Q.
was 91, performance I.Q. was 117, and full scale I.Q. was 104.
The evaluation said that while in foster care in Saginaw, John
was in a class for the “minimally brain injured.” John’s “most
obvious disability” was “a severe speech and language handicap.
His speech would be unintelligible to most listeners much of the
time,” and was “characterized by severe articulation 22
difficulties, frequent non-fluency, immature grammar and syntax,
the use of gesture to aid self-expression, and occasionally the
use of devices to get out of talking altogether (a shrug with a
‘don't know’ response).” “John seems to be a sensitive child who
is acutely aware of feelings and perhaps expectation of others
toward him -- it may be that he responds in his ‘borderline’
manner when he thinks this is how the significant person with him
feels about him” (1PC-R. D-Ex 1, Tab 4, pp. 2-3).
An evaluation conducted on November 12, 1971, concluded he
suffered from “cerebral dysfunction,” with testing showing many
“organic indicators.” John exhibited “a deep sense of inadequacy
John was placed with foster parents from whom he took the 23
name "Marek." Psychiatric notes indicate that from 1971 to 1974,
John was prescribed Dexadrine, Mellaril, and Elavil (1PC-R. D-Ex
1, Tab 4, pp. 12-28). These notes also chronicle John’s
continuing emotional difficulties. In March, 1972, the foster
mother was told that John had been “traumatized so much that it
would be expected that he would continue having problems for
years to come.” At an April 10, 1972, session, John appeared to
be “quite angry” and admitted “he was still angry at his stepfather,
Mr. Bagley, for whipping him each time he wet the bed,
which was something that he could not help and could not stop
doing it.” Mrs. Marek said “that last week [John] had gone to
the house where he used to live with his natural parents. After
and poor self concept” and was “an oversensitive and easily hurt
youngster who tries to hide his sensitivity.” John wanted “to
change from being a boy who is sad all the time to being a boy
who is happy all the time.” The report concluded, “this seems
to be an immature youngster with rather basic defenses who is
probably making some sort of neurotic adjustment to his very real
problems. Psychotherapy might be of help, but there are
certainly many reality problems confronting this youngster” (1PCR.
D-Ex 1, Tab 4, pp. 5-6).
A psychiatric evaluation conducted on November 17, 1971, by
Dr. Henry Burks concluded that John was “an emotionally deprived
boy with minimal cerebral dysfunction syndrome and language
disability who is having some situational reaction to a difficult
foster and school placement.” Dr. Burks prescribed Mellaril for
John’s anxiety and recommended “supportive psychotherapy or
casework services, but I don't know where they are available” (1
PC-R. D-Ex 1, Tab 4, p. 7).23
that, during the rest of the week, his behavior was not good. He
wet the bed every night and this seems to irritate his foster
parents.” On April 19, 1972, John said “he feels his foster
mother and his foster sister are keeping a secret from him, which
is that his natural mother is not taking him back.” On June 9,
1972, the notes state that John had been seeing Dr. Serrano
because “He has evidences of deprivation, the foster child
syndrome, and learning disability which is probably on both
psychological and neurological basis.” He “had been improving
greatly,” but Dr. Serrano left, and “there was a fairly massive
regression, some self-destructive behavior, and a return of the
enuresis.” On February 28, 1974, Mrs. Marek said she could no
longer cope with John, who continued wetting his pants and had an
episode of soiling (1PC-R. D-Ex 1, Tab 4, pp. 15-28).
In April of 1974, John told a story expressing his hopes:
John's story telling suggests that here is another
foster child still fantasizing about and idealizing his
natural parents years after he has left the natural
home. The boy in the story is afraid of his stepfather
who is always hitting him and wishes he were dead. He
hates his mother and stepfather, so he goes to the
Child Study Center and talks to the psychiatrist who
sees that mother and step-father are divorced and
mother remarries natural father. Then mother stops
"all that marrying and divorcing", and the family lives
happily ever after.
John told another story in which “the boy sees himself as ugly
looking and rejected by his peers and lacking in abilities and
confidence” (1PC-R. D-Ex 1, Tab 4, pp. 10-11).
In the spring of 1974, John was sent to a residential
treatment facility paid for by Jesse Grimm's military Champus
Insurance. John arrived at Shady Brook Residential Treatment
Center for Children in Richardson, Texas, on June 11, 1974 (1PCR.
D-Ex 1, Tab 5). In August 1974, an Academic Progress Report
noted that John “appears to lack assertiveness in some peer
The medical director wrote a congressman protesting the 24
funding cut. The letter said John’s “family abandoned John a
number of years ago for all practical purposes,” and “John had
reacted to neglect and abandonment primarily by an autistic-like
withdrawal into himself and by lack of speech development.” The
letter said John had received remedial education, speech therapy,
individual psychotherapy and group therapy, and his “response has
been good.” While John still lagged behind in school, “We have
seen him relinquish his introverted amateur adjustment in favor
of periods of emotional stability, academic achievement, and
outgoing peer relations.” The letter implored that Champus
funding not be cut because “To stop now will negate what has gone
before” (1PC-R. D-Ex 1, Tab 8, p. 27).
interactions which results in his being bullied by the more
aggressive group members” (1PC-R. D-Ex 1, Tab 8, p. 4). It also
explained, “John's weak ego seems to cause him to withdraw when
there is any conflict, either with other students or with the
teacher.” Id. A March 1975 report noted that John had shown
much improvement, although his bed wetting continued (1 PC-R. DEx
1, Tab 8). On the Stanford Achievement Test administered in
April, 1975, John's scores were in the 5.2 to 6.1 grade
equivalent levels. This was shortly before John's fourteenth
birthday when he should have been near the end of an eighth grade
level. In June of 1975, intelligence testing revealed a verbal
score of 87, a performance score of 103 and a full scale score of
94. (1PC-R. D-Ex 1, Tab 5).
In September, 1975, Champus announced that funding would
soon be terminated for John's placement in Shady Brook. On 24
October 28, 1975, the program director of the Tarrant County
Child Welfare Unit wrote Champus, making a last ditch appeal for
John has made substantial progress in his peer
relations, speech and educational achievements and has
exhibited a higher level of emotional stability and
maturity. However, it is the opinion of treatment
staff that John has not yet reached a level where he
could be sustained in a foster family or sufficiently
assisted by existing educational facilities in the
community. . . . John will require an additional nine
to twelve months of residential treatment before he can
successfully reenter the community.
(1PC-R. D-Ex 1, Tab 8, pp. 38-39).
This appeal was not successful. Shady Brook's director of
admissions wrote Mrs. Marek and described that John’s last
meeting with his doctor “was a tearful parting for both of them”
(1PC-R. D-Ex 1, Tab 8, p. 34). In December 1975, Shady Brook’s
last progress report on John said he was learning to deal with
his problems realistically, understood the consequences of his
actions, and was learning self-control, resulting in fewer
behavioral outbursts (1PC-R. D-Ex 1, Tab 8, p. 41).
In June of 1976, John was placed with the Devereux
Foundation in Victoria, Texas, under the name John Marek. An
admissions psychological evaluation revealed that much of the
progress made at Shady Brook was already gone. His full scale IQ
now tested at 82, Dull Normal, with a Verbal IQ of 64 and
Performance IQ of 104. The report noted:
This young man at some time in the past was potentially
capable of functioning in the Bright Normal range. His
longstanding emotional disturbance has significantly
lowered his overall intellectual functioning, but his
basic cognitive grasp remains average.
In May 1978, John still had a bed wetting problem, causing 25
him much embarrassment. “[H]e continue[d] to feel so worthless--
feeling that he [was] a nothing.” The Devereux staff felt John
needed to “find something he can do and find successes and gain
more self-confidence to strengthen his feeling of self-worth”
(1PC-R. D-ex 1, Tab 7, p. 11).
John presented “[a] fairly complicated picture with the chief
diagnostic impression being ego diffusion/fragility with
moderately severe general emotional disturbance. Emotional
integration is poor with inability to form goals, frequent
outbursts of impulsivity and, perhaps most important, thinking
disorganization” (1PC-R. D-Ex 1, Tab 7, pp. 29-30).
In an evaluation conducted on October 19, 1977, John again
tested as Dull Normal; the evaluator observed, “[a]t some time in
the past this young man was potentially capable of functioning in
the Bright Normal range of intelligence, but due to his various
problems have been unable to realize this potential.” The
discrepancy between John’s verbal and performance IQS “strongly
suggest[s] underlying organicity, reflected in a
language/learning disability syndrome. . . . However, in terms
of specific etiological contributors, organicity must rate a
second place to this young man's severe emotional disturbance.” 25
John was developing “an inadequate personality disturbance,”
accompanied by “a variable morass of underlying depressive
feelings. While John is only mildly depressed, his depression
extends very far back in time and is fairly well and deeply set”
John went to the Marek's where he attended public school 26
and worked at a gas station. In October 1978, Mrs. Marek
reported John had “regressed in his enuresis problem after his
birthday because his natural father had not called or sent a
present to John as he was supposed to. Since his birthday, John
ha[d] resumed his bed wetting” (1PC-R. D-Ex 1, Tab 29).
Sallie Hand testified at the 1988 hearing that John “was a 27
shy, I thought sweet type kid that never gave me any trouble.”
“Did he ever indicate that he had been loved by anyone before
you?” “No. I don't think he felt love.” “John was searching
for love” (1PC-T. 242).
(1PC-R. D-Ex 1, Tab 7, pp. 17-18).
On September 18, 1978, John was discharged from Devereux at
his request. The discharge summary noted “John's feelings of
inadequacy among peers and a feeling he would like to return to a
Unit where there were younger and smaller children” (1PC-R. D-Ex
1, Tab 7, p. 5). In December, John quit school. In January, 26
the Mareks washed their hands of him. Texas Welfare officials
placed John in a shelter. In March of 1979, he was placed with
new foster parents, Sallie and Jack Hand (1PC-T. 239). 27
In May of 1979, John was charged with credit card abuse for
attempting to charge $55 on a credit card a customer had left at
the gas station where he worked, and was placed on probation
(1PC-R. D-Ex 1, Tab 19, p. 8). In 1980, probation was revoked
because John had failed to attend a counseling and vocational
program, and John was sentenced to two years in state prison.
During probation revocation proceedings, a competency evaluation
noted that John had developed a substantial drug abuse problem,
After his release from prison, John had nowhere to go and 28
resumed using drugs and drinking. By the time of the offense, he
was consuming vast quantities of alcohol. He drank approximately
two cases of beer a day during the trip to Florida. When police
officers stopped John and Raymond Wigley on the beach early on
June 17, 1983, the bed of Wigley's truck contained eight to ten
cases of beer. When John and Wigley were arrested the next day,
there were five or six cases of beer in the truck.
mainlining heroin and using marijuana, cocaine, speed, and
downers, but that John had functioned adequately in jail where
drugs were not available (1PC-R. D-Ex 1, Tab 18, p. 5). The
evaluator recommended that John receive drug treatment in “a
strictly enforced and structured environment,” which could
“reshape [his] behavior permanently” (Id. at 6).28
Mr. Marek's early life of abuse, neglect and rejection had a
lasting impact on him. Since defense counsel failed to present
this important information, Mr. Marek was sentenced to death by a
judge and jury who knew virtually nothing about him save what the
State told them. This evidence was admissible, valid mitigation.
Campbell v. State, 571 So. 2d 415, 419 (Fla. 1990); Holsworth v.
State, 522 So. 2d 348 (Fla. 1988).
The background information described above was not only
independently mitigating, but also would have prompted a thorough
neuropsychological evaluation of Mr. Marek. Such an evaluation
would have confirmed what the Texas records indicate: Mr. Marek
suffers from organic brain damage and severe psychological
disturbances, and has suffered from these conditions throughout
Dr. Krieger, who evaluated Mr. Marek pre-trial for 29
competency, testified at the 1988 hearing that he was not asked
to evaluate for mitigation (1PC-T. 282), that he was concerned
about saving taxpayer money and obtaining future court
appointments, and that he is not a neuropsychologist and was not
qualified to perform neuropsychological testing (1PC-T. 283).
Had he been provided with records indicating a history of
organicity, Dr. Krieger would have referred defense counsel to
someone qualified to conduct such testing (1PC-T. 283).
his life. Such an evaluation would also have revealed that Mr.
Marek's organic brain damage and psychological disturbances
interacted with alcohol and drug abuse and with intoxication at
the time of the offense to substantially impair Mr. Marek's
judgment and ability to control his conduct.29
Dr. Pat Fleming conducted the necessary evaluation and
testing, demonstrating substantial mitigation. Dr. Fleming’s
testing established that Mr. Marek suffers from “cerebral
dysfunction with the left hemisphere affected more than the
right.” Mr. Marek’s history also demonstrated behaviors
“indicat[ing] significant damage to the frontal and/or temporal
lobe.” Mr. Marek’s “brain injury added to the psychic trauma”
created by his chaotic, neglectful and abusive childhood and
adolescence. If the brain damage and psychological trauma were
not enough, “significant alcohol use only added to the poor
judgment stemming from brain damage and serious psychological
problems (2PC-R. 753-54).
Dr. Fleming diagnosed Mr. Marek as suffering from Organic
Brain Syndrome and Dysthmia:
John's symptomology meets the criteria of Organic Brain
Syndrome as outlined in the Diagnostic and Statistical
Manual of Mental Disorders (DSM-III): Affective
instability e.g. marked shifts from normal mood to
depression, irritability, or anxiety; recurrent
outbursts of aggression or rage that are grossly out of
proportion to any precipitating psychological
stressors; markedly impaired social judgment; marked
apathy and indifference.
John was diagnosed as a child as having an underlying
depression. The current evaluation supports the
diagnosis of Dysthmia (Depressive Neurosis). According
to the DSM-III the essential feature is a chronic
disturbance of mood involving depressed mood (irritable
mood in children) for at least two years. During these
periods of depressed mood there are some of the
following associated symptoms that John has
demonstrated: poor appetite, hypersomnia, low energy
or fatigue, low self-esteem, poor concentration or
difficulty making decisions, and feelings of
hopelessness. John's present level of depression is
heightened by his present circumstances but the history
indicates that the depression is long standing.
(2PC-R. 755). Dr. Fleming identified substantial mitigation
established by Mr. Marek’s psychological evaluation and history:
1. Significant physical and psychological trauma
during infancy and childhood... drug overdose,
head injuries, seizure activity, and recurrent
2. Consistent diagnosis of brain dysfunction
beginning at one year. Treatment plans were
inconsistent and interrupted.
3. Alcohol use beginning at age eleven and increasing
at age seventeen. This excessive alcohol use
interacted with the existing brain dysfunction and
severe psychological problems to significantly
interfere with functioning and judgment.
4. Significant family pathology. Abandoned by
natural mother, father, step-father and foster
family. Unaccepted at home and school due to his
behavior and severe language delay.
5. Consistent lack of opportunity to establish stable
relationships. Frequent shifts in foster families
and treatment centers, with no consistent plan.
Failure to refer to in-patient treatment when the
circumstances and recommendations warranted more
John Marek is a classic example of a child who was
provided too little, too late. From the time of his
birth he was a frantic child, seeking acceptance,
nurturing, and attention. He was surrounded by
inadequate people who did not have the capacity to
understand or rear a child who had significant
As Dr. Fleming's report also demonstrates, a thorough
psychological evaluation which took into account the
documentation regarding Mr. Marek's background and history would
also have provided substantial mitigation regarding Mr. Marek's
mental and emotional disturbances, his history of alcohol and
drug abuse, and his intoxication at the time of the offense. Mr.
Marek's sentencers knew nothing about his life of abandonment and
neglect, of the psychological and emotional abuse he suffered, of
the organic brain damage from which he suffered, of his severe
substance abuse problems, or of the severe psychological and
emotional disorders which plagued him throughout his life and at
the time of the offense. Counsel failed his client, and Mr.
Marek's death sentence is the resulting prejudice.
The Supreme Court has described the prejudice inquiry:
[A] court hearing an ineffectiveness claim must
consider the totality of the evidence before the judge
or jury. Some of the factual findings will have been
unaffected by the errors, and factual findings that
were affected will have been affected in different
ways. Some errors will have had a pervasive effect on
the inferences to be drawn from the evidence, altering
the entire evidentiary picture, and some will have had
an isolated, trivial effect. Moreover, a verdict or
conclusion only weakly supported by the record is more
likely to have been affected by errors than one with
overwhelming record support. Taking the unaffected
findings as a given, and taking due account of the
effect of the errors on the remaining findings, a court
making the prejudice inquiry must ask if the defendant
has met the burden of showing that the decision reached
would reasonably likely have been different absent the
Strickland, 466 U.S. at 695-96.
Under Wiggins, Mr. Marek was clearly prejudiced by counsel’s
failure to investigate. Confidence is undermined in the
reliability of the outcome when the evidence in aggravation is
considered “against the totality of available mitigating
evidence.” Wiggins, 123 S.Ct at 2542 (emphasis added); see also
Williams v. Taylor, 120 S.Ct at 1515 (court is required to
conduct an “assessment of the totality of the omitted evidence”
and then to “evaluate the totality of the available mitigation
evidence–both that adduced at trial, and the evidence adduced in
the habeas proceeding”)(emphasis added). If “the available
mitigating evidence, taken as a whole, ‘might well have
influenced the jury’s appraisal’ of [the defendant’s] moral
culpability,” Wiggins, 123 S.Ct. at 2544 (quoting Williams, 120
S.Ct. at 1515), prejudice has been shown. Every defendant has “a
right–indeed a constitutionally protected right–to provide the
In its decision in Cone v. Bell (announced on April 28, 30
2009), the United States Supreme Court made it clear that a
procedural bar premised upon res adjudicate or law of the case is
not valid and cannot preclude merits consideration of the federal
question. Slip Op. at 17.
jury with the mitigating evidence that his trial counsel either
failed to discover or failed to offer,” Williams, 120 S.Ct. at
1513, regardless of the strength of the state’s case, the heinous
nature of the offense, or the severity of the aggravators.
Williams, 120 S.Ct. at 1515. For a fact to be mitigating it does
not have to be relevant to the crime-–any of “the diverse
frailties of humankind,” Woodson v. North Carolina, 428 U.S. 280,
304 (1976), which might counsel in favor of a sentence less than
death, Lockett v. Ohio, 438 U.S. 586 (1978), are mitigating.
Williams, 120 S.Ct at 1516.
Mr. Marek has presented a Furman claim in which he cites to
the specific prejudice that he suffered as this Court indicated
in Rutherford v. State, 940 So. 2d 1112, 1117 (Fla. 2006), was
required to establish a basis for relief. The circuit court
denied this aspect of the Furman saying:
This Court also finds that the Defendant’s “Second Claim”
in both of his motions and also as explained in his
Memorandum under Wiggins v. Smith, 539 U.S. 510 (2003),
Rompilla v. Beard, 545 U.S. 374 (2005) and Williams v.
Taylor, 529 U.S. 362 (2000) in which the Defendant has
requested to re-examine his claim of ineffective
assistance of penalty phase counsel is speculative and is
an improper attempt to re-litigate matters already
Order dated April 23, 2009, at 3. 30
Interestingly, the State has not argued otherwise. This is 31
because applying the controlling United States Supreme Court
decisions to Mr. Marek’s case clearly requires the grant of
The refusal to afford Mr. Marek the benefit of the
controlling decisions on the question of ineffective assistance
of counsel can only be described as arbitrary. Under these
decisions, there can be no question that Mr. Marek would be
entitled to relief. Under Furman, Mr. Marek’s sentence of 31
death cannot stand. It is a product of system that has failed to
assure “rationality in the evenhanded operation of the state
law.” Proffitt v. Florida, 428 U.S. at 259-60.
D. The standardless clemency process produces arbitrary
Clemency is a critical stage of the capital scheme. It is
the only stage permitting correction for the arbitrary factors
that infect the system. See Harbison v. Bell, 129 S. Ct. 1481
(2009); Herrera v. Collins, 506 U.S. 390, 412 (1993). In the
words of Harbison, clemency is the “failsafe.” Yet, Florida’s
clemency process fails to perform that function as the ABA report
noted: “Given the ambiguities and confidentiality surrounding
Florida’s clemency decision-making process and that fact that
clemency has not been granted to a death-sentenced inmate since
1983, it is difficult to conclude that Florida’s clemency process
is adequate.” ABA Report on Florida at vii.
And here, the State has disclosed records showing
correspondence with the Governor’s office and the Parole
Commission in September of 2008 regarding Mr. Marek and his death
sentence. Mr. Marek’s counsel was not contacted regarding the
possibility of clemency or of the possibility that the Governor
would not sign a warrant. It was entirely an ex parte, onesided,
arbitrary, standardless process. Out of more than 50
death sentenced individuals who the Governor could have signed a
death warrant for on April 20, 2009, the decision to pick Mr.
Marek who had proceedings pending in court, smacks of a lottery
system. Those who did not receive a death warrant on April 20,
2009, received clemency within the standard meaning of the word.
See Webster’s New World Dictionary (“clemency” is defined as
“leniency, or mercy, as toward an offender”).
Within the meaning of the Eighth Amendment, Mr. Marek has
been struck by lightning. The Florida capital sentencing process
has resulted in an arbitrary death sentence and an arbitrary
decision to execute Mr. Marek on May 13, 2009. He has been
struck by lightning within the meaning of the Eighth Amendment in
that there is no principled way to distinguish his case and
circumstances from those who have not been sentenced to death or
have not been scheduled for execution. Furman has been violated.
The circuit court erred in denying Mr. Marek’s claim.
ARGUMENT 2: THE EXECUTION OF MR. MAREK WHO HAS HAD NO STAY OF
EXECUTION IN EFFECT FOR OVER FOURTEEN YEARS VIOLATES THE EIGHTH
AMENDMENT TO THE UNITED STATES CONSTITUTION.
Here, Mr. Marek’s execution has now been scheduled 25 years
after his conviction was returned and a sentence of death was
imposed. The execution has been scheduled 14 years after Mr.
Marek’s first round of postconviction litigation was completed.
The Eighth Amendment prohibition against cruel and unusual
punishment requires that “the sanction imposed cannot be so
totally without penological justification that it results in the
gratuitous infliction of suffering.” Gregg v. Georgia, 428 U.S.
153, 183 (1976). Punishments that entail exposure to a risk that
“serves no ‘legitimate penological objective’” and that results
in gratuitous infliction of suffering violate the Eighth
Amendment. Farmer v. Brennan, 511 U.S. 825, 833 (1994) (quoting
Hudson v. Palmer, 468 U.S. 517, 548 (1984) (Stevens, J.,
concurring in part and dissenting in part).
When the U.S. Supreme Court denied certiorari review in
Lackey v. Texas, Justice Stevens wrote:
Though novel, petitioner's claim is not without
foundation. In Gregg v. Georgia, this Court held that
the Eighth Amendment does not prohibit capital
punishment. Our decision rested in large part on the
grounds that (1) the death penalty was considered
permissible by the Framers and (2) the death penalty
might serve "two principal social purposes: retribution
It is arguable that neither ground retains any force
for prisoners who have spent some 17 years under a
sentence of death. Such a delay, if it ever occurred,
certainly would have been rare in 1789, and thus the
practice of the Framers would not justify a denial of
petitioner's claim. Moreover, after such an extended
time, the acceptable state interest in retribution has
arguably been satisfied by the severe punishment
already inflicted. Over a century ago, this Court
recognized that "when a prisoner sentenced by a court
to death is confined in the penitentiary awaiting the
execution of the sentence, one of the most horrible
feelings to which he can be subjected during that time
is the uncertainty during the whole of it." In re
Medley, 134 U.S. 160, 172, 33 L. Ed. 835, 10 S. Ct. 384
(1890). If the Court accurately described the effect of
uncertainty in Medley, which involved a period of four
weeks, that description should apply with even greater
force in the case of delays that last for many years.
Finally, the additional deterrent effect from an actual
execution now, on the one hand, as compared to 17 years
on death row followed by the prisoner's continued
incarceration for life, on the other, seems minimal.
Lackey v. Texas, 514 U.S. 1045 (1995) (J. Stevens, memorandum
respecting denial of certiorari) (citations omitted).
In a subsequent denial of certiorari review in another case,
Justice Breyer echoed the concerns voiced by Justice Stevens in
Lackey. Justice Breyer wrote in a case involving a defendant who
had been on Florida’s death row over 23 years that: “After such a
delay, an execution may well cease to serve the legitimate
penological purposes that otherwise may provide a necessary
constitutional justification for the death penalty.” Elledge v.
Florida, 119 S. Ct. 366 (1998) (J. Breyer, dissenting). Justice
Breyer asserted that the length of time on death row, extended by
a State’s mishandling of the case, becomes cruel once the purpose
of punishment is no longer served. In yet another case involving
an extended stay on Florida’s death row, Justice Breyer stated:
Nor can one justify lengthy delays by reference to
constitutional tradition, for our Constitution was written
at a time when delay between sentencing and execution could
be measured in days or weeks, not decades. See Pratt v.
Attorney General of Jamaica,  2 A. C. 1, 18, 4 All E.
R. 769, 773 (P. C. 1993) (en banc) (Great Britain's "Murder
Act" of 1751 prescribed that execution take place on the
next day but one after sentence).
Knight v. Florida, 528 U.S. 990, 995 (1999) (J. Breyer,
dissenting from the denial of certiorari). Justice Breyer
described the psychological impact of a long stay on death row:
It is difficult to deny the suffering inherent in a
prolonged wait for execution -- a matter which courts
and individual judges have long recognized....The
California Supreme Court has referred to the
"dehumanizing effects of . . . lengthy imprisonment
prior to execution." In Furman v. Georgia, 408 U.S.
at 288-289 (concurring opinion), Justice Brennan wrote
of the "inevitable long wait" that exacts "a frightful
toll." Justice Frankfurter noted that the "onset of
insanity while awaiting execution of a death sentence
is not a rare phenomenon."
Knight, 528 U.S. at 994-995. Justice Breyer, in his dissent from
denial of certiorari in Foster v. Florida, observed:
[T]he Supreme Court of Canada recently held that the
potential for lengthy incarceration before execution is
"a relevant consideration" when determining whether
extradition to the United States violates principles of
"fundamental justice." United States v. Burns,  1
S. C. R. 283, 353, P123.
Foster v. Florida, 537 U.S. 990, 992-993 (2002) (Breyer, J.,
The Framers of the United States Constitution would not have
envisioned that a condemned man would spend 25 years awaiting
execution. The Eighth Amendment’s prohibition on cruel and
unusual punishment on the 1776 Virginia Declaration of Rights was
based on the 1689 English Bill of Rights. Harmelin v. Michigan,
501 U.S. 957, 966 (1991). The English Bill of Rights said
“excessive bail ought not to be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted” when
executions took place within weeks of a death sentence, and if a
delay in carrying out the execution was unduly prolonged, it
could be commuted to a life sentence. Riley v. Attorney Gen. of
Jamaica, 3 All E.R. 469, 478 (P.C. 1983) (Lord Scarsman,
dissenting); Pratt v. Attorney General of Jamaica,  2 A. C.
1, 18, 4 All E. R. 769, 773 (P. C. 1993) (en banc) .
Recent developments in international law strongly suggests
that the execution of a condemned individual after over 25 years
on death row is not consistent with evolving standards of
decency. For example, in 1993 two Jamaican death row inmates
challenged their death sentences on the basis that their 14 year
incarceration on death row violated the Jamaican Constitution’s
prohibition against inhuman punishment. The Privy Council of the
United Kingdom invalidated their death sentences and indicated
that a stay on death row of more than five years would be
excessive, and commuted their sentence from death to life in
prison. Pratt v. Attorney General of Jamaica,  2 A. C. 1,
18, 4 All E. R. 769, 773 (P. C. 1993) (en banc). As a result of
the prolonged stays on death rows in the United States, combined
with the inhumane conditions typical of death row, some foreign
jurisdictions have refused extradition of criminal suspects to
the United States where it was likely that a death sentence would
result, on the grounds that the experience of years of living on
death row would violate international human rights treaties.
Soering v. United Kingdom, 11 Eur. H.R. Rep. 439 (1989). In
Soering, the European Court of Human Rights held that the
extradition of a capital defendant, a German national, to the
United States would violate Article 3 of the European Convention
on Human Rights, which bars parties to the Convention from
extraditing a person to a jurisdiction where they would be at
significant risk of torture or inhumane punishment. The Court
cited the risk of delay in carrying out the execution, which in
Virginia averaged between six and eight years. The Court found
that “the condemned prisoner has to endure for many years the
conditions on death row and the anguish and mounting tension of
living in the ever-present shadow of death.” Id. at §106.
Since the U.S. government could not assure that the death penalty
would not be sought in the Virginia courts, extradition was
barred by the United Kingdom.
Here, unlike most of the cases in which Justices of the U.S.
Supreme Court have written regarding the Court’s denial of
certiorari review, there has been no impediment precluding the
Assistant Deputy Attorney General from asking the governor to
sign a warrant at any time since 1995 (since in 2009 even though
Mr. Marek had a Rule 3.851 motion pending before this Court, the
Assistant Deputy Attorney General was successful in advising the
governor to sign a warrant). The prolonged delay here has been
as a result of the State’s choice. The State chose to wait 14
years after the 11 Circuit’s decision was final to schedule Mr. th
Marek’s execution. In these circumstances, the Eighth Amendment
has been violated by the signing of the death warrant. Mr.
Marek’ execution cannot be carried out. Mr. Marek’ sentence of
death if carried out would violate the Eighth Amendment. Rule
3.851 relief is warranted.
Rule 3.852(h) provides that after a death warrant is signed
on a defendant, he has ten days to make additional public records
requests. Mr. Marek has now made such requests and is entitled
to pursue the public records in his Rule 3.851 motion and any
claims arising from newly disclosed public records. Accordingly
Mr. Marek’s scheduled execution violates the Eighth Amendment and
constitutes cruel and unusual punishment.
ARGUMENT 3: THE EXECUTION OF MR. MAREK WHILE A CASE IS PENDING IN
THE UNITED STATES SUPREME COURT THAT MAY ESTABLISH THAT HE WAS
DEPRIVED OF DUE PROCESS VIOLATES THE EIGHTH AMENDMENT TO THE
UNITED STATES CONSTITUTION.
Marek sought to amend his Rule 3.851 motion in light of the
grant of certiorari review in Caperton v. Massey. At issue in
this case which was argued on March 3, 2009, is whether the due
process clause requires judicial disqualification where a judge
has a close relationship with a litigant. Though a ruling has
not yet issued, if the U.S. Supreme Court finds that the due
process clause is applicable in such instances and warrants
disqualification, then Mr. Marek was deprived of due process in
1988 when Judge Kaplan presided over the evidentiary hearing in
Mr. Marek’s case to determine whether his good friend Hilliard
Moldof had rendered ineffective assistance of counsel at Mr.
Marek’s trial. Given the pendency of Caperton and the scheduled
execution date, Mr. Marek has sought to amend his Rule 3.851
motion to plead that he was deprived of his due process rights in
the collateral proceedings conducted in 1988. His execution when
such an important issue is pending in the United States Supreme
Court would be arbitrary and capricious and violative of the
ARGUMENT 4: EXECUTION BY LETHAL INJECTION VIOLATES THE UNITED
STATES AND FLORIDA CONSTITUTIONS.
As to this issue, Mr. Marek argued in circuit court that due
process required that he receive the same consideration Ian
Lightbourne received, an evidentiary hearing. Mr. Marek argued
in circuit court that it would be a violation of due process for
the circuit court to deny Mr. Marek an evidentiary hearing on the
basis of the outcome in Lightbourne, given that Mr. Marek was not
a party to the Lightbourne proceedings. Of course, the
touchstone of due process is notice and reasonable opportunity to
be heard. The right to due process entails “‘notice and
opportunity for hearing appropriate to the nature of the case.’”
Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532, 542 (1985),
quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S.
306, 313 (1950). “[F]undamental fairness is the hallmark of the
procedural protections afforded by the Due Process Clause.” Ford
v. Wainwright, 477 U.S. 399, 424 (1986)(Powell, J., concurring in
part and concurring in the judgment).
In Teffeteller v. Dugger, 676 So. 2d 369 (1996), this Court
applied these due process principles in post-conviction
proceedings when considering a claim similar to the one at issue
here. In Teffeteller, this Court ruled that a criminal
defendant’s collateral claim could not be denied on the basis of
evidence presented when neither he nor his counsel were present
for and thus could not challenge and/or confront the evidence.
This is precisely the circumstances presented here when this
Court refused to give Mr. Marek the opportunity to present his
case, and instead denied his claim on the basis of evidence
presented in another case for which Mr. Marek was not present and
not able to challenge or confront the State’s case.
In its order denying Mr. Marek’s Rule 3.851 motion, the
circuit court overlooked Mr. Marek’s due process claim and did
not address it. Mr. Marek has sought to invoke his own due
process right to be fully and fairly heard on his claim and seeks
to present evidence not presented in Lightbourne. As Mr. Marek
does not base his claim merely on the basis of the evidence
presented by Lightbourne, the circuit court’s refusal to grant an
evidentiary hearing on the claim is error that cannot be
Based upon the record and his arguments, Mr. Marek
respectfully urges the Court to reverse the lower court, order a
new trial and/or resentencing, order new proceedings on Mr.
Marek’s 1988 Rule 3.850 motion, or remand for an evidentiary
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing has been
furnished by US Mail delivery to Carolyn Snurkowski, Assistant
Deputy Attorney General, Department of Legal Affairs, The Capitol
PL01, Tallahassee, Florida 32399-1050 on April 29, 2009.
CERTIFICATE OF FONT
This brief is typed in Courier 12 point not proportionately
MARTIN J. MCCLAIN
Florida Bar No. 0754773
McClain & McDermott, P.A.
Attorneys at Law
141 N.E. 30th Street
Wilton Manors, FL 33334
COUNSEL FOR APPELLANT