Saturday, June 27, 2009

New evidences in John Marek

As to this Court’s opinion on direct appeal, the State seems

to be suggesting that the factual statements made by this Court

and the issues raised by Mr. Marek somehow has already decided

the newly discovered evidence claim adversely to Mr. Marek.

However, the testimony of Jessie Bannerman, Robert Pearson,

Michael Conley, Leon Douglass, Carl Mitchell and William Green

was not known or presented at Mr. Marek’s trial, nor for that

matter was any testimony presented regarding statements made by

Raymond Wigley that he killed Adela Simmons while Mr. Marek slept

in the pickup truck. The evidence that has been presented now

So. 2d 622 (Fla. 1992). No mention was made of the Eleventh Circuit opinion affirming the denial of federal habeas relief.


Mills v. Singletary, 161 F.3d 1273 (11 Cir. 1998). Nor was anymention made of this Court’s affirmance of the summary denial ofprevious successive Rule 3.850 motion, the day before Mr. Millsfiled his third motion to vacate - the one on which relief was granted. Mills v. State, 786 So. 2d 547 (Fla. 2001) (thisopinion issued on April 25, 2001, and the motion to vacate onwhich Mr. Mills obtained relief was filed on April 26, 2001).

In fact when this Court issued its opinion in State v.Mills, it simply stated:

As to Mills’ first claim, the trial court found that the evidence Mills presented met the test fornewly discovered evidence as enunciated in Jones v.State, 709 So. 2d 512, 519 (Fla. 1998). We agree. The evidence presented by Anderson was unknown at the time of trial and neither Mills nor his counsel could have discovered it with due diligence, the evidence would have been admissible at trial, if only for impeachment;and the newly discovered evidence, when considered inconjunction with the evidence at Mills’ trial and 3.850 proceedings, would have probably produced a different result at sentencing.

State v. Mills, 788 So. 2d at 250. Thus, it is clear that complete procedural history of Mr. Mills’ case and the analysis of the issues raised at every step in the process did not andcould not establish a res adjudicata bar.

was not in the record at the time of the direct appeal and thus it was not considered by this Court when it issued its opinion affirming Mr. Marek’s sentence of death

No comments: