Saturday, June 27, 2009

MOTION TO STRIKE STATE’S NOTICE OF COMPLIANCE in John Marek

IN THE SUPREME COURT OF FLORIDA JOHN MAREK, Appellant

v. CASE NO. SC09-821 STATE OF FLORIDA, Appellee.

________________________/ MOTION TO STRIKE STATE’S NOTICE OF COMPLIANCE

COMES NOW, JOHN MAREK, by and through undersigned counsel, in the above-entitled matter and respectfully requests that this Court strike the “State’s Notice of Compliance; Request for Briefing Schedules and Motion to Consolidate Successive Postconviction Motions” as an unauthorized pleading that misrepresents the status of proceedings in circuit court.

For his reasons, Mr. Marek states:

1. On June 22, 2009, undersigned counsel received in electronic form the pleading entitled “State’s Notice of Compliance; Request for Briefing Schedules and Motion to Consolidate Successive Postconviction Motions.”

2. This pleading is utterly baffling.

Since when does one party get to announce to this Court that “compliance” has occurred in totally disregard of the other party’s due process rights.1

The State asserts in this pleading “that the May 21, 2009, remand order has been complied with”. Notice of Complianceat 2.

Is Mr. Marek’s participation in the litigation completely unnecessary and superfluous?

Is the fix in?

Is it just for the State and the courts to get together and figure out how to

Glaringly absent from this “Notice” is any discussion of

the fact that Mr. Marek has a right to file a motion for

rehearing under Rule 3.851(f)(5)(7), and that there are glaring

errors in the circuit court’s orders that call for a motion for

rehearing.2

The proceedings are not over in circuit court until proceed?

Mr. Marek does not believe that the proceedings in the circuit court are completed.

Doesn’t that count?

2For example, in clear violation of Rule 3.851 the circuit court did not conduct a case management conference on Mr. Marek’sRule 3.851 motion filed on June 12, 2009.

Rule 3.851(f)(5)(B)provides in pertinent part: “Within 30 days after the state files its answer to a successive motion for postconviction relief, the trial court shall hold a case management conference.” (Emphasisadded).

The case management conference is required by due process as explained in Huff v. State, 622 So. 2d 982 (Fla.1993), in order to allow the movant an opportunity to orally argue the basis of the motion to vacate and/or the need for evidentiary development. The circuit court discard the requirement in Rule 3.851(f)(5)(B) like yesterday’s newspaper, as if Mr. Marek’s due process right under Huff are of no import.

The circuit court also cast aside Mr. Marek’s challenge to the accuracy of the transcript of Leon Douglass’ testimony without affording Mr. Marek to present his evidence that the transcript is in error and without allowing the parties an opportunity to listen to the backup tape of the testimony.

Before undersigned counsel filed the motion to correct the transcript, he called the court reporter who immediately said that he knew exactly what aspect of the transcript counsel was going to inquire about. Later in the conversation the court reporter explained that he too had been surprised by the quote attributed to Leon Douglass in the transcript.

The court reporter advised that he did not recall Mr. Douglass describing Raymond Wigley as a black male, but that was what it soundly like Mr. Douglass said on the backup tape. The court reporter offered to play the tape for counsel. When he attempted to arrange for counsel to hear the tape over the telephone, however, counsel was unable to hear anything other than just the sound of voices - the words were indecipherable. The circuit court’s refusal to permit evidentiary development regarding the accuracy of the transcript

Mr. Marek’s motions for rehearing have been heard and resolved and until Mr. Marek files a notice or notices of appeal.

Until that time this Court lacks jurisdiction and the State’s notice is unauthorized.

I HEREBY CERTIFY that a true copy of the foregoing motion has been furnished by United States Mail, first class postage prepaid, to Carolyn Snurkowski, Assistant Deputy Attorney General, Department of Legal Affairs, The Capitol PL01, Tallahassee, Florida 32399-1050, on this 23rd day of June, 2009.

MARTIN J. MCCLAIN Florida Bar No. 0754773 McClain & McDermott, P.A.Attorneys at Law141 NE 30th Street Wilton Manors, FL 33334

(305) 984-8344

Attorney for Mr. Marek

violated Mr. Marek’s due process rights.

Finally as to the order denying Mr. Marek’s newly discovered evidence claim, the circuit court describes Raymond Wigley’s statements as not credible. In reaching this conclusion, the circuit court relied upon the testimony of Bannerman, Pearson,Conley, Mitchell and Green to conclude that Raymond Wigley’s statements that he committed the murder were not necessary true.

The circuit court’s reasoning ignores the fact that the testimony of Banner, Pearson, Conley, Mitchell, and Green would have led to the introduction of Wigley’s life sentence at Mr. Marek’s penalty phase.

The issue is not whether the jury would have likely believed Wigley’s statements, but whether the introduction of those statements and the fact that he received a life sentence would have led to a different outcome before the jury, on direct appeal, or in postconviction. In this regard, the circuit court completely overlooked what in fact was and is Mr. Marek’s claim.

Florida Supreme Court scheduling order in John Marek

Supreme Court of Florida

TUESDAY, JUNE 23,2009

CASE NO.: SC65821 Lower Tribunal No(s).: 83-7088 CF lOB

JOHN RICHARD MAREK vs. STATE OF FLORIDA

Appellant(s) Appellee(s)

Any appeal from the trial court's two orders issued June 19,2009, denying Marek's motions for postconviction relief filed on May 1, 2009, and June 12, 2009, shall be consolidated and shall proceed as follows: Appellant's notice of appeal and initial brief on the merits shall be filed by 5:00 pm, Wednesday, June 24, 2009; appellee's answer brief shall be filed by 5:00 pm, Thursday, June 25, 2009; and appellant's ~~ply brief shall be filed by 5:00 pm, Friday, June 26, 2009. Service of the briefs to ';opposing counsel shall be made via e-mail. Filing of the above briefs at this Court shall be by transmitting the brief via e-mail to the following address: warrant@f1courts.org. Counsel shall transmit only the signed original brief to this court as soon as possible after filing via e-mail.

The trial court clerk shall file the record on appeal by 5:00 pm, Wednesday, June 24, 2009. An electronic copy of the record may be transmitted to warrant@f1courts.org.

Per this Court's Administrative Order In Re: Mandatory Submission of Electronic Cpopies of Documents, AOSC04-84, dated September 13,2004, counsel are directedtto transmit a copy of all briefs in an electronic format as required by the provisions of that order.

CASE NO.:,SC65821 PAGE TWO

The above case is hereby scheduled for oral argument at 9:00 am, Wednesday, July 1, 2009. A maximum of twenty minutes to the side is allowed for the argument, but counsel is expected to use only so much of that time as is necessary.

A True Copy Test:

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th Served:

HON. MICHAEL J. SATZ MARTIN J. MCCLAIN CELIA A. TERENZIO CAROLYNV. MC CANN CAROLYN M. SNURKOWSKI HON. HOWARD FORMAN, CLERK HON. JEFFREY R. LEVENSON, JUDGE

Video about doghandler John Preston




Video about doghandler John Preston

STATE'S NOTICE OF COMPLIANCE; REQUEST FOR BRIEFING SCHEDULES AND

IN THE SUPREME COURT OF FLORIDA

JOHN RICHARD MAREK,

Appellant,

v. CASE NO. SC09-821

STATE OF FLORIDA, Appellee.

STATE'S NOTICE OF COMPLIANCE; REQUEST FOR BRIEFING SCHEDULES AND MOTION TO CONSOLIDATE SUCCESSIVE POSTCONVICTION MOTIONS

The State files this Notice of Compliancei Request For Briefing Schedules and Motion to Consolidate Successive Postconviction Motions and would show:

1. On Friday, June 19, 2009, the trial court, after evidentiary hearing held June 1-2, 2009, entered its Orders denying all postconviction review following this Court's May 21, 2009, Order, reversing and remanding for a new evidentiary hearing before another judge of the Seventeenth Judicial Circuit in the above styled cause. 2. The Orders entered resolved not only the pending successive motion filed on May I, 2009, but in a separate order, the trial court also determined, without further evidentiary

review, Marek's fourth postconviction motion filed June 12, 2009.

3. The State would submit that the May 21, 2009, remand order has been complied with and requests that a briefing schedule for appellate review be expedited to allow the matter to move forward since a stay of execution currently remains in place. Many of the legal issues have not changed and the factual matters were briefed in the written closing arguments of the parties.' Therefore, an expedited briefing schedule is in order. 4. The State would also request consolidation of Marek's "May I, 2009, third and, June 12, 2009, fourth successive motions for postconviction review", for briefing and oral

argument purposes since, they are inextricably intertwined regarding Marek's issues as to Judge Kaplan's and defense counsel's, Moldof's, representation of Marek.

CONCLUSION

In light of the special circumstances of this case and the expedited scheduling thus far imposed in the instant case, the State respectfully requests this Court grant the instant motions in toto.

2

Respectfully submitted,

BILL McCOLLUM ATTORNEY GENERAL

CAROLYN M. SNURKOWSKI ASSISTANT ATTORNEY GENERAL FLORIDA BAR NO. 158541 OFFICE OF THE ATTORNEY GENERAL PL-01, THE CAPITOL TALLAHASSEE, FL 32399-1050

(850) 414-3300 COUNSEL FOR PLAINTIFF

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing STATE'S NOTICE OF COMPLIANCE; REQUEST FOR BRIEFING SCHEDULES AND MOTION TO CONSOLIDATE SUCCESSIVE POSTCONVICTION MOTIONS has been furnished via e-mail to martymcclain@earthlink.net, lindammcdermott@msn.com, jlevenso@17th.flcourts.org, CMcCann@sao17.state.fl.us, & sbailey@sao17.state.fl.us and via U.S. mail to Martin J. McClain, McClain & McDermott, PA, 141 NE 30th Street, Wilton Manors, FL 33334, this 22nd day of June, 2009.

Carolyn M. Snurkowski Attorney for Plaintiff

3

The Florida cases where doghandler John Preston was involved

Juan Ramos


Juan Ramos stands next to Norm Wolfinger, then a public defender, in court. Ramos was sentenced to death in the 1982 rape and murder of a neighbor, but was granted a second trial and in 1987 was acquitted. (1983 FLORIDA TODAY file)


The cases


In an ongoing investigation, FLORIDA TODAY is studying documents, newspaper clippings and microfilm to learn about the cases in which John Preston was involved.



They include:


Gary Bennett, sentenced to life in prison in for the 1983 murder of a woman neighbor in Palm Bay.


Frank Berry, sentenced to 124 years in prison for raping a Merritt Island woman in 1981.


Scott Carroll, a serial rapist suspected in numerous Brevard County cases, tried and convicted in New York where he remains in prison.


Wilton Dedge, exonerated and released in 2004 after spending 22 years in prison for a 1981 rape that DNA evidence showed he didn't commit.


William Dillon, charges dropped last year after DNA evidence excluded him from being connected to a key piece of evidence. Dillon spent 27 years in prison for a 1981 murder.


Gary Dirk, sentenced to life in prison for burglary and rape in 1985.


James Elmen, 17 years old when a jury acquitted him of burglary and murder charges in 1984.


Mark Wayne Jones, serving double life sentences for the murders of two Titusville women to whom he had given a ride in 1981.


Elton Kimbrough and Kenneth Michael Burch, murder charges dropped, sentenced to 10 years on burglary charges, in the robbery and death of an 89-year-old Titusville woman. All charges were dropped against two other men.


Juan Ramos, found not guilty during a second trial in 1987 after being sentenced to death for rape and murder of a neighbor in 1982.


Willie Jessie Snipes, paroled in 1986 after serving four years for manslaughter that occurred during a robbery in 1981.


Gerald Stano, a serial killer who confessed to 41 murders. He was convicted in Brevard County for the murder of 17-year-old Cathy Lee Scharf in 1983 and executed.


Christopher Wilder, a serial killer who was killed during a struggle with Massachusetts police in 1984. He was accused of murdering a Satellite Beach resident earlier that year.


Eugene Wiley, served 11 years for second-degree murder in the death of a Saudi Arabian exchange student in an alleged drug deal

The testimony of Jessie Bannerman, Robert Pearson, Michael Conley, Leon Douglass, Carl Mitchell and William Green in John Marek


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

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

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

was not in the record at the time of the direct appeal and thus it was not considered by this Court when it issued its opinion affirming Mr. Marek’s sentence of death.2

In the 1988 proceedings on Mr. Marek’s a motion to vacate, the State seems to suggest that the outcome there has some bearing on the decision of the newly discovered evidence claim against Mr. Marek. However in 1988 at the time of the “initial” Rule 3.850 motion, the testimony of Jessie Bannerman, Robert Pearson, Michael Conley, Leon Douglass, Carl Mitchell and William Green was not known or presented, nor for that matter was any testimony presented regarding statements made by Raymond Wigley that he killed Adela Simmons while Mr. Marek slept in the pickup truck. The evidence that has been presented now was not in the record at the time of the “initial” Rule 3.850 was heard and denied, and thus this evidence was not considered or addressed by either the circuit court or this Court when Mr. Marek was denied collateral relief.3

Similarly, the State seems to suggest that to the Eleventh Circuit’s affirmance of the denial of Mr. Marek’s petition for federal habeas relief is somehow binding and has decided the

2The circumstances here are identical to the circumstances in State v. Mills where the testimony of Anderson that the codefendant, Ashley, admitted to him that he was the triggerman hadnot been presented at trial and was not of record at the time ofthe direct appeal.

3The circumstances here are identical to the circumstances in State v. Mills where the testimony of Anderson that the codefendant, Ashley, admitted to him that he was the triggerman wasnot known nor presented at during the proceedings on Mr. Mills’“initial” Rule 3.850 motion.

newly discovered evidence claim adversely to Mr. Marek. However

at the time that Mr. Marek filed his federal habeas petition, he

was unaware of what Jessie Bannerman, Robert Pearson, Michael

Conley, Leon Douglass, Carl Mitchell and William Green had to

say. Mr. Marek did not know or present their testimony in his

federal habeas petition, nor for that matter was any testimony

presented regarding statements made by Raymond Wigley that he

killed Adela Simmons while Mr. Marek slept in the pickup truck.

When the Eleventh Circuit issued its opinion, it did not have any

evidence before it of Raymond Wigley’s statements indicating that

he was the one who had killed Adela Simmons. So therefore, the

Eleventh Circuit could not have addressed its significance.4

Moreover, the State’s reliance upon the Eleventh Circuit’s

discussion of trial counsel’s strategy is irrelevant to the

4The circumstances here are identical to the circumstances in State v. Mills where the testimony of Anderson that the codefendant, Ashley, admitted to him that he was the triggerman hadnot been presented in Mr. Mills’ federal habeas petition and hadnot been considered by the federal courts when federal habeasrelief was denied. Mills v. Singletary, 161 F.3d 1273 (11th Cir. 1998).

Moreover, the decision by the Eleventh Circuit denying Mr.Marek’s ineffective assistance of counsel issued in 1995, wasbefore the United States Supreme Court’s decisions in Williams v.Taylor, 529 U.S. 362 (2000), Wiggins v. Smith, 539 U.S. 510(2003), Rompilla v. Beard, 545 U.S. 374 (2005). The decision in

th

Marek v. Singletary, 62 F.3d 1295 (11 Cir. 1995), is simplyerroneous in light of the subsequent decisions by the UnitedStates Supreme Court. And in fact, the United States SupremeCourt recently granted certiorari review in case in which theEleventh Circuit had denied habeas relief on a penalty phaseineffectiveness claim in order to address whether the standards employed by the Eleventh Circuit to review ineffectiveness claimscomports with the controlling precedent from the Supreme Court.Wood v. Allen, – U.S. – , Case No. 08-9156 (cert. granted May 18,2009).

newly discovered evidence claim given that trial counsel did not have the new evidence and therefore any decision making occurred without the new evidence and would have been altered by the new evidence had it been known, as trial counsel, Hilliard Moldof, testified on June 2, 2009. Certainly, the Eleventh Circuit did not have Mr. Moldof’s 2009 testimony regarding the new evidence and the effect it would have had on how he proceeded at Mr. Marek’s trial when it rendered its decision in 1995.5

From The Innocence Project of Florida blog


Solving the Problem


DNA has changed the criminal justice system forever – but the system has not changed enough.
The exonerations of innocent people have shown that our criminal justice system is fundamentally flawed. DNA exonerations do not solve the problem – they provide scientific proof of its existence, and they illuminate the need for reform.


Over the last 15 years, there has been a major shift in criminal justice legislation as a result of DNA exonerations. Policymakers are increasingly recognizing and addressing the problems these exonerations demonstrate – and they are beginning to enact common-sense reforms that have been proven to improve accuracy in the criminal justice system.


Reforms with Broad Support and Proven Success


The Innocence Project works with people from across the criminal justice system – including prosecutors, victims, law enforcement agencies and defense advocates – to enact meaningful reform. Improving fairness and accuracy in the criminal justice system benefits all segments of society. Victims and their families can see justice; prosecutors and police can have the tools to do their jobs well; the public can have more confidence in the system; and innocent people and their families can avoid the tragedy of wrongful convictions.


The Innocence Project’s priorities for reforming the criminal justice system reflect the lessons that have been learned from DNA exonerations over the last 15 years. These priorities also reflect the need to address fundamental shortcomings in the criminal justice system while implementing specific reforms to law enforcement procedures. All of the reforms that the Innocence Project and its partners advocate have been proven to increase the accuracy of the criminal justice system, often through decades of scientific research. The reforms that can address and prevent wrongful convictions include:



Some of these recommended reforms have already met with success.

New evidences in John Marek


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

to be suggesting that the factual statements made by this Court

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

the newly discovered evidence claim adversely to Mr. Marek.

However, the testimony of Jessie Bannerman, Robert Pearson,

Michael Conley, Leon Douglass, Carl Mitchell and William Green

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

matter was any testimony presented regarding statements made by

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

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

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

th

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

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

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

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

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

Crist should appoint prosecutor to probe alleged corruption at State Attorney's Office



Our views: Crying for justice
Crist should appoint prosecutor to probe alleged corruption at State Attorney's Office


June 21, 2009



Justice was repeatedly denied by the State Attorney’s Office in Brevard County in the early 1980s, including frequent use of fraudulent dog handler John Preston, now deceased, who helped the state convict dozens of people.


That includes trials for three Brevard County men who’ve since had their convictions overturned or charges dropped.


William Dillon of Satellite Beach served nearly 27 years in prison for a 1981 murder in Indian Harbour Beach before DNA testing in 2008 showed he couldn’t be linked to the crime.


Dillon was finally vindicated last year when charges were dropped and Brevard-Seminole State Attorney Norm Wolfinger said a review showed “a jury today would not find Mr. Dillon guilty beyond and to the exclusion of every reasonable doubt.”


Wilton Dedge was convicted of rape in 1981 but freed in 2004 after DNA evidence proved the Port St. John man’s innocence.


Juan Ramos was tried and sentenced to death for rape and murder in 1983 in Brevard, although no physical evidence linked him to the crime. Ramos was acquitted in 1987.


Evidence of fraud


Now alarm bells are ringing loudly that more innocent men may be unjustly kept behind bars because of potential prosecutorial misconduct involving Preston:


-- Titusville attorney and former Brevard prosecutor Sam Bardwell, who encountered Preston in a 1981 rape case, says then-State Attorney Doug Cheshire, also now dead, as well as the Brevard Sheriff’s Office and most law enforcement officers at the time knew Preston was a charlatan.


“I left the State Attorney’s Office because I could not abide by the fabrication of evidence,” Bardwell says.


-- Retired 18th Circuit and appellate Judge Gil Goshorn confirmed Cheshire relied heavily on Preston in a number of cases, along with questionable jailhouse snitches.


“Cheshire’s office often relied on such evidence of dubious reliability,” Goshorn said in a sworn affadavit in 2008.


-- The Innocence Project is looking into a fourth Brevard case involving Preston, that of Gary Bennett, sentenced to life in prison for the 1984 murder of Palm Bay resident Helen Nardi.
Seth Miller, executive director of the group, says Preston was being fed information that helped him manufacture evidence and the state win convictions.


-- Preston was involved in a reported 60 Brevard cases, with more than 15 of those identified in FLORIDA TODAY archives. He earned $37,429 for work done in the first half of 1984, including the Bennett trial.


Wolfinger should be aggressively investigating the allegations of abuses in the office in that era, but so far is stonewalling, putting the onus for unearthing tainted justice on the convicted, sitting in their jail cells.


His refusal further erodes the public’s trust in Brevard’s justice system, damaged recently by the botched Dedge and Dillon cases.


A full probe


Wolfinger’s cop-out leaves no recourse but for Gov. Charlie Crist to start a full investigation.
We’ve called for that repeatedly since the gross mishandling of the Dedge case came to light five years ago. The Innocence Project has also called for Crist to appoint a special prosecutor to look into the Preston cases.


But Crist is running away, saying through spokesman Sterling Ivey he believes it’s “a judicial issue and should be handled on a case-by-case analysis through the judicial system.”


Running for the U.S. Senate no doubt makes him want to steer clear of controversial issues. But as a former Florida attorney general he should understand shoving corruption under the rug simply because it’s in the past is a corrosive and dishonest policy.


Justice cries out for answers in the Preston cases.


That includes finding out for certain if those convicted using tainted evidence are indeed guilty and keeping them behind bars.


But also making sure any who may be wrongly convicted — like Dedge, Dillon and Ramos — get a new day in court. And that any justice system or law enforcement officials who betrayed the public good in cahoots with Preston are found and, if still alive, prosecuted to the full extent of the law.


Only a full probe can render those judgments.


Crist should order one immediately.

Friday, June 26, 2009

Michael Conley testifies in John Marek


REPLY TO STATE’S STATEMENT OF THE CASE

In its Statement of the Case, the State devotes a fair space to a discussion of the procedural history of the litigation over Mr. Marek’s death sentence in the past twenty-five years. This is in an effort to provide a springboard for its res adjudicata arguments that follow. But of course what is left out of the procedural history provided by the State is any acknowledgment that the testimony of Jessie Bannerman, Robert Pearson, Michael Conley, Leon Douglass, Carl Mitchell, or William Green was not previously presented by Mr. Marek at any time during the procedural history until after the witnesses were located in April and May of 2009. As a result in none of the decisions by any of the courts that looked at Mr. Marek’s case prior to April of 2009 was there any consideration given to the testimony of these new witnesses and the impact that there testimony would have had at Mr. Marek’s trial or upon the analysis of the legal issues that have been raised and addressed in the subsequent proceedings as to the validity of the death sentence.1

1When this Court addressed a similar newly discovered evidence claim in State v. Mills, 788 So. 2d 249 (Fla. 2001), it did not address any of the procedural history of the 20 years of litigation by Mr. Mills. No mention was made in this Court’s opinion of the direct appeal by Mr. Mills. Mills v. State, 476So. 2d 172 (Fla. 1985). No mention was made of this Court’s opinion reversing and remanding for an evidentiary hearing on Mr.Mills’ Rule 3.850 motion. Mills v. Dugger, 559 So. 2d 578 (Fla. 1990). No mention was made of this Court’s opinion affirming the denial of Rule 3.850 relief after the evidentiary hearing was conducted finding that counsel had not rendered ineffective assistance. Mills v. State, 603 So. 2d 482 (Fla. 1992). No mention was made of this Court’s opinion denying Mr. Mills’petition for a writ of habeas corpus. Mills v. Singletary, 606

Thursday, June 25, 2009

Death row inmate's mental competency at issue


Death row inmate's mental competency at issue

http://www2.tbo.com/content/2009/jun/23/death-row-inmates-mental-competency-issue/news-breaking/

Tribune file photo
Franklin Delano Floyd attends the penalty phase of his murder trial in 2002.

By MARK DOUGLAS News Channel 8
Published: June 23, 2009

Related Links
Previous: Remains ID'd as woman
Previous: Prisoner indicted in teen's death
Previous: Inmate To Die For '89 Murder

Four years after Pinellas Circuit Judge Nancy Moate Ley sent convicted killer Franklin Delano Floyd to death row for murdering an exotic dancer, he's coming back to face her again today.
This time the issue is Floyd's mental competency, not whether he killed Cheryl Ann Commesso, whose bones were found along Interstate 275 in 1995.

Commesso disappeared in 1989, when she was working at the Mons Venus strip club in Tampa with another dancer who was married to Floyd.

Prosecutors say that woman, Sharon Marshall, died under suspicious circumstances in a hit-and-run accident in Oklahoma, but Floyd was never charged in her death or the death of her son, whom Floyd kidnapped in Oklahoma, along with the boy's school principal.

The boy, Michael Hughes, was never found, but the principal survived and later testified at Floyd's murder trial.

Investigators linked Floyd to Commesso's murder with pornographic pictures found taped to the gas tank of the truck Floyd used to abduct Hughes and the principal.

The photos depicted Commesso's badly beaten body posed in a sexually explicit manner while bound, restrained and blindfolded on a couch. A witness later testified the couch was in Floyd's Pinellas Park trailer.

In a strange coincidence, the photos surfaced almost at the same moment a maintenance worker stumbled across Commesso's skull while maintaining the right of way along I-275 in St. Petersburg.

Chief Assistant State Attorney Bruce Bartlett, who helped prosecute Floyd, says the question of Floyd's competency presents a number of problems.

It would be dangerous to transfer Floyd to a mental hospital if the judge decides he's too mentally ill to face execution or the continuing legal motions associated with the death penalty process, Bartlett said.

"Right now, we've hit a stumbling block," he said.

If doctors and defense lawyers convince the judge that Floyd is mentally incompetent, that effectively would stop all motions in his case, and he would end up in a kind of legal limbo. In that event, the courts could not consider Floyd's remaining postconviction motions, but he couldn't be executed either. It's also unclear whether he could remain on death row.

Something similar happened prior to his criminal trial when Ley declared Floyd incompetent in March 2001 and sent Floyd to the North Florida Evaluation and Treatment Center.

Doctors there found him competent, manipulative and abusive and sent him back to Pinellas County to face trial.

Since then, Floyd's behavior in court has sometimes been disruptive, and his legal defense interrupted by pro se motions he filed himself. Court records show an order striking his most recent pro se motion was filed just last week.

Ley will preside over Floyd's competency hearing, which begins at 9 a.m. today at the Pinellas Justice Center. It is scheduled to last two days.

Reporter Mark Douglas can be reached at (727) 709-2753 .

Judge refuses request to set aside death sentence

Kaplan testifies

Judge refuses request to set aside death sentence

A Broward County circuit judge refused a convicted killer's request to setaside his murder conviction and death sentence for a 1983 slaying.

John Richard Marek, 47, was convicted of the June 1983 kidnapping, rapingand strangling of Adella Marie Simmons.

Circuit Judge Jeffrey Levenson issued his ruling to the Florida SupremeCourt on Friday. He wrote that evidence presented during a hearing did not offset the overall evidence against Marek.


The Supreme Court now has the final say on Marek's fate.

Marek's attorney declined comment Monday because he hadn't seen thedecision.

Marek had been scheduled for lethal injection May 13, but the SupremeCourt postponed the execution and sent the case to Broward for a hearing.

(source: Associated Press)




Judge orders more DNA testing in death penalty case



Judge orders more DNA testing in death penalty case
Florida Supreme Court stayed David Johnston's execution in May.

Sarah Lundy Sentinel Staff Writer
5:38 PM EDT, June 23, 2009

An Orange Circuit Court judge is allowing a lab selected by the defense and another picked by the state to test evidence for DNA in the death penalty case against David Eugene Johnston, whose execution was stayed last month by the Florida Supreme Court.
Johnston was convicted of the murder of 84-year-old Mary Hammond, who was strangled and stabbed in her Orlando home in 1983. He was scheduled to die on May 27.
The Florida Supreme Court stayed the execution so DNA testing could be done. Earlier this month, a state forensic lab recommended more testing with newer technology evaluate the evidence, which included the victim's fingernail clippings. The lab also tested Johnston's shoes, socks and shorts.
Now, a lab in Ohio selected by the defense will test for DNA and a lab in Virginia will test and report back to the court their findings, according to an order signed by Orange Circuit Court Judge Bob Wattles.

Monday, June 22, 2009

Explosive new charge in prison vendor lawsuit


First came allegations of illegal negotiations between Florida's prison system and a mental health care vendor. Then came a bid protest and a lawsuit charging violations of purchasing and public records laws. Now, this: the same vendor that brought the lawsuit, MHM Correctional Services, is raising the possibility that a top corrections official maneuvered to get a friend hired at the vendor being hired to replace MHM.

MHM attorney Chris Kise filed a response document in Leon County Circuit Court Monday that says the prison system's assistant secretary for health care services, Dr. Sandeep Rahangdale, "may well have had a personal interest in contracting with CMS." Correctional Medical Services of St. Louis is the new vendor hired to take MHM's place in providing mental health care for about 18,000 inmates in South Florida's prisons.

Kise attached e-mail traffic between Rahangdale and Frank Fletcher, CMS's senior director of business development, in which the prison official writes: "Frank: Send requirements, pay range, etc. to (Rahangdale's private email address). I think I have a perfect fit for you and the state." Fletcher answers: "Thanks for the e-mail contact, I will be back in touch regarding a psychiatric director." (A previous post incorrectly said MHM got the emails from a public records request; the materials were obtained through discovery).

During that e-mail exchange, testimony in court showed, the Department of Corrections was finalizing a 120-day purchase order to begin utilizing CMS on July 1. Kise's lawsuit is asking a judge to block that purchase order award until MHM's bid protest is decided. The state had no immediate response to Kise's court filing, saying the agency had not yet seen the paperwork.

In a statement, CMS spokesman Ken Fields called the allegation "nothing more than a desperate PR stunt that is completely baseless." He said MHM has had the emails "for weeks" but never raised "This false allegation in any hearing ... Instead, they have chosen to wait until the hearings are concluded and to make the assertion in the media."

Posted by Steve Bousquet at 03:00:53 PM on June 22, 2009
in State agencies Permalink

Dog handler led to bad evidence


Dog handler led to bad evidence
Calls grow for reinvestigating cases from 1980s

BY JOHN A. TORRES • and JEFF SCHWEERS • June 21, 2009

http://www.floridatoday.com/article/20090621/NEWS01/906210319/-1/crime/Dog%20handler%20led%20to%20bad%20evidence?GID=gILl6OXLKuUzpDHUSJW1bIymGsYVi/8zD6YfByclUuU%3D


Scorned as a "charlatan" by the Arizona Supreme Court and a fraud by a retired judge and others, a dog handler who helped the state convict dozens of people haunts Brevard County criminal cases 25 years after he was discredited.

John Preston, who died last year, testified in the 1980s trials of three Brevard men who have since been released with overturned convictions or dropped charges.
Now, the Innocence Project, which helped free Juan Ramos, Wilton Dedge and William Dillon, is looking into a fourth case involving Preston: the murder conviction of Gary Bennett in 1984.
Calls are growing for State Attorney Norm Wolfinger and his staff to reinvestigate and reopen more cases in which convictions may have been tainted by Preston's questionable word, as well as reliance on jailhouse informants. Some allege corruption by prosecutors at the time.
"If Norm Wolfinger had one iota of integrity, he would say it's outrageous and investigate the cases," said Titusville attorney Sam Bardwell, a former prosecutor here. "John Preston was a total fraud, and everyone knew it."
The State Attorney's Office has said it couldn't provide a list of cases involving the dog handler, but a FLORIDA TODAY archives and records search found more than 15 of 60 reported Brevard cases.
In a fax Friday, Wolfinger said only Bennett and another man remain in prison after trials in which Preston testified as an expert.
FLORIDA TODAY's research showed some convicts in the Preston-related cases have been released after serving their sentences. Some have died.
A public defender in the 1980s when Preston was an active witness, Wolfinger had issued a statement Wednesday saying it's the responsibility of convicted people to seek relief. He did not answer questions from FLORIDA TODAY.
"Defendants have had rights in Florida to challenge their convictions through a well established post-conviction process," the statement said. "Historically, that has been through a Rule 3.850 motion. More recently, that right has been expanded to DNA testing through Rule 3.853.

"Those provisions have procedures which defendants must follow, as well as potential rights to appointment of an attorney and having the public pay for costs if a hearing or testing is allowed by the court."

Attorney quit
Bardwell first encountered Preston while working as a prosecutor in the Frank Berry rape case in 1981. Bardwell did not want to use Preston's testimony, but he said he was pressured by others.
"The guy would show up at the State Attorney's Office asking if anyone needed help with a case," Bardwell said.
Berry was found guilty and sentenced to life in prison.
Though Bardwell thought Berry was guilty of the charges, he said the corruption he witnessed caused him to abandon prosecutions and take up private practice as a defense attorney.
"I left the State Attorney's Office because I could not abide by the fabrication of evidence," Bardwell said.
Berry is the second man Wolfinger identified as in prison in a Preston-related case. He called him a "serial rapist."
"Mr. Berry not only has a prior sexual battery and a subsequent escape sentence, his taped confession was played at trial, and he continues to admit his guilt to prison officials," Wolfinger said in Friday's fax.
Crist bows out
The Innocence Project of Florida has called for the governor to appoint a special prosecutor to look into the Preston cases. Seth Miller, executive director of the nonprofit group, has been outspoken about what he calls "widespread corruption" in Brevard County in the early 1980s.
"Preston was being fed information that allowed him to understand certain facts about the case that enabled him to manufacture evidence in order to get the conviction," Miller said. "Not only do we have to free the folks who are innocent, who were put into prison because of this testimony, but we have to hold the people who did this accountable."
Through a spokesman last week, Gov. Charlie Crist said he won't appoint a prosecutor, agreeing with Wolfinger.
"We believe this is a judicial issue and should be handled on a case-by-case analysis through the judicial system," spokesman Sterling Ivey said after consulting with legal staff. "There are methods by which new evidence can be filed in a case, and this is the appropriate course of action to take."

Attorney Jennifer Greenberg, who helped exonerate Dedge in 2004, said it is unfair to expect inmates decades later to know of developments in related cases, nor how to file for relief.
trigger
"Just gathering up the info on all Preston's doings would be virtually impossible, let alone getting into court in a timely fashion to actually get the issue heard," she said. "Post-conviction time deadlines, the necessity of investigative work and the pleading requirements totally prohibit inmates from receiving due process or fundamental fairness."
Judge's action
In the late 1970s, Preston went from a $20,000-a-year job as a Pennsylvania state trooper to a highly paid expert who testified in cases for the FBI, the U.S. Postal Service and Orange, Palm Beach, Brevard and Seminole counties, as well as for Arizona, Ohio and other states. He was paid $300 a day, according to documents.
Retired 18th Circuit and appellate Judge Gil Goshorn put Preston and his dogs to a test and ultimately refused to allow him to present himself as an expert in 1984.
Goshorn was ready to testify late last year in hearings on behalf of Dillon, convicted of a 1981 murder in which Preston testified, but the state first granted Dillon a new trial because of DNA evidence.
"The elected state attorney at that time, Doug Cheshire, relied heavily on Preston in a number of cases and frequently offered him as an expert," Goshorn stated in a sworn affidavit in 2008. "Cheshire also was a prolific user of jailhouse 'snitches.' Cheshire's office often relied on such evidence of dubious reliability."
Cheshire was voted out of office in 1984, when Wolfinger became state attorney. Cheshire died in 1997.
Failed test
Goshorn's test of the dog handler's scent-tracking ability involved two lawyers jogging down separate paths. The following morning, the dog was given one lawyer's sweat-soaked shirt to see if the dog could follow the trail. The dog failed.
Goshorn told Preston that he would give him a second chance a day later, but the handler and his dog left town and never testified in Brevard again.

"It is my belief that the only way Preston could achieve the results he achieved in numerous other cases was having obtained information about the case prior to the scent tracking so that Preston could lead the dog to the suspect or evidence in question," Goshorn continued in his affidavit. "I believe that Preston was regularly retained to confirm the state's preconceived notions about a case."

Prosecutors, including ones in Brevard, continued using Preston's services after a 1983 federal investigation initiated by the U.S. Postal Service. It said Preston routinely asked investigators for information about a case before using the dog and that he led his dog to supply wanted results.
Newspaper accounts said Brevard agencies paid Preston at least $37,429 for work done in the first half of 1984, including in the Bennett trial.
Preston's cases were overturned in Arizona, where the state's highest court referred to him as a "charlatan."
Bennett case
The Innocence Project wouldn't address its involvement in the Bennett case, except to say it was one that their attorneys are looking into. The case fits a pattern similar to those of Ramos, Dedge and Dillon.
Bennett, now seeking new DNA testing, was convicted in part on evidence provided by Preston and testimony of two cellmates who said he talked about killing his Palm Bay neighbor in 1984.
Prosecutors argued that Preston's dog identified Bennett's scent on the murder weapon in the 1984 case. But two scent tests failed when the tracking dog -- after sniffing Bennett's clothing -- failed to pick the murder weapons from lineups of similar weapons.
Bennett's palm print and fingerprint also were reportedly found at the murder scene.
Innocence Project leader Miller has an investigator looking into Preston's Brevard connection, hoping to help more people such as Dillon out of prison.
Memories differ
Preston testified in the Dillon case after his dog tracked Dillon across State Road A1A to the murder scene, then tied him to a bloody T-shirt. DNA evidence has since precluded Dillon from wearing the shirt.

Former Judge Stanley Wolfman, who presided over the Dillon trial, called the dog-tracking evidence troubling.

"It was kind of flimsy. They had this dog tracking across A1A with all the traffic going by there, and I just shook my head internally and (the defense attorney) did not attack it," Wolfman said. "It was just poor evidence as far as I could see."
Defense attorney Karen Brandon, who helped prosecute Dillon, said she presented evidence to the jury that was provided to her by the sheriff's office. She denied knowledge of any corruption in the State Attorney's Office.
"At the time, there was absolutely no reason to believe that Mr. Preston was less than forthright and that his evidence was less than valid," she said.
Dedge was awarded a new trial when Preston was discredited, but the introduction of notorious jailhouse snitch Clarence Zacke in his second trial sealed a second conviction against him. He was released in 2004 when DNA evidence proved that the semen found inside the rape victim did not belong to him.
Ramos, a Cuban immigrant, was arrested in 1982 for the rape and murder of his neighbor, even though no physical evidence tied him to the scene. Preston's testimony, however, was damning and Ramos was sentenced to death.
After four years on death row, the Florida Supreme Court reversed Ramos' conviction in 1986, citing the unreliability of the dog evidence. Ramos was acquitted at a retrial and released in 1987, when he moved to Miami.
Russo joins
In December, longtime Public Defender J.R. Russo joined those calling for an investigation.
"Mr. Wolfinger is very well-versed in the quality of the dog testimony," he said. "I'm surprised they are not going back to look at these cases."
But at the time, Wolfinger responded by saying defendants and their attorneys have been free to bring any motions they deem appropriate before the courts.
"Evidentiary challenges to the admissibility of the dog evidence by defense attorneys began and was well-publicized before I became state attorney," he said.

Contact Torres at 242-3649 or jtorres@floridatoday.com.

Former Judge Stanley Wolfman, who presided over the Dillon trial, called the dog-tracking evidence troubling.

"It was kind of flimsy. They had this dog tracking across A1A with all the traffic going by there, and I just shook my head internally and (the defense attorney) did not attack it," Wolfman said. "It was just poor evidence as far as I could see."
Defense attorney Karen Brandon, who helped prosecute Dillon, said she presented evidence to the jury that was provided to her by the sheriff's office. She denied knowledge of any corruption in the State Attorney's Office.
"At the time, there was absolutely no reason to believe that Mr. Preston was less than forthright and that his evidence was less than valid," she said.
Dedge was awarded a new trial when Preston was discredited, but the introduction of notorious jailhouse snitch Clarence Zacke in his second trial sealed a second conviction against him. He was released in 2004 when DNA evidence proved that the semen found inside the rape victim did not belong to him.
Ramos, a Cuban immigrant, was arrested in 1982 for the rape and murder of his neighbor, even though no physical evidence tied him to the scene. Preston's testimony, however, was damning and Ramos was sentenced to death.
After four years on death row, the Florida Supreme Court reversed Ramos' conviction in 1986, citing the unreliability of the dog evidence. Ramos was acquitted at a retrial and released in 1987, when he moved to Miami.
Russo joins
In December, longtime Public Defender J.R. Russo joined those calling for an investigation.
"Mr. Wolfinger is very well-versed in the quality of the dog testimony," he said. "I'm surprised they are not going back to look at these cases."
But at the time, Wolfinger responded by saying defendants and their attorneys have been free to bring any motions they deem appropriate before the courts.
"Evidentiary challenges to the admissibility of the dog evidence by defense attorneys began and was well-publicized before I became state attorney," he said.

Contact Torres at 242-3649 or jtorres@floridatoday.com.

Judge denies Death Row inmate's request to toss conviction in Broward murder



Judge denies Death Row inmate's request to toss conviction in Broward murder


Tonya Alanez South Florida Sun Sentinel
10:12 AM EDT, June 22, 2009


http://www.sun-sentinel.com/news/local/breakingnews/sfl-marek-death-row-bn062209,0,2195103.story

John Richard Marek, 47, during a recent court appearance before Broward Circuit judge Peter Weinstein. (Lou Toman, File / May 7, 2009)


FORT LAUDERDALE - A Broward circuit judge has denied John Richard Marek's request to set aside his capital murder conviction and death sentence for the 1983 strangling of a woman whose body was found in a Dania Beach lifeguard shack.
Circuit Judge Jeffrey Levenson issued his ruling to the Florida Supreme Court on Friday evening. It is now up to the state's high court to make a final decision.
Levenson's decision was based upon evidence and testimony presented during a two-day hearing on June 1-2.
During the hearing, Marek's attorney had presented witnesses who said Marek's co-defendant, Raymond Wigley, caimed to be the strangler, not Marek.

In a 15-page ruling, Levenson wrote: "The testimony of the six inmate witnesses is not credible and does not offset the substantial evidence against the defendant."
Marek, 47, had been scheduled to die by lethal injection May 13 when the Supreme Court indefinitely postponed the execution and sent the case back to Broward County for a hearing.
Marek's attorney said that because Wigley, who was murdered in prison in 2000, got a life sentence, his client should as well.
The raped, strangled body of Adela Marie Simmons, a 45-year-old Barry University administrator, was found in a Dania Beach lifeguard shack in June 1983.

Saturday, June 20, 2009

Connecticut bishops ask governor to support death penalty repeal

(Publication Date: 06-02-2009)

By Catholic News Service

HARTFORD, Conn. (CNS) -- Connecticut's Catholic bishops have asked Gov. M. Jodi Rell to back a repeal of the death penalty in the state.

Rell, a Republican, vowed May 22 to veto a death penalty repeal bill passed by the Democratic-run General Assembly "as soon as it hits my desk."

The bishops' May 28 letter to Rell asked her to "respect the decision of the General Assembly, reconsider your publicly stated position on this bill, and allow (it) to become the law of the land in Connecticut."

"While Catholic social and moral teaching support the right of any state to protect itself from serous criminals, it has long held that such action does not require the use of the death penalty when the penal system can guarantee the incarceration of an offender for life," the bishops said.

"Although a perpetrator of a heinous crime may receive a sentence of death in Connecticut, the possibility that this person will actually be executed is very unlikely," they added. "It is highly questionable that the existence of a death penalty is a deterrent to those who commit a capital crime."

The bishops also noted the cost of "unending appeals" in capital punishment cases and the "inconsistent and uneven way" the death penalty is applied in the state.

The bill passed 90-56 in the state House, but 19-17 in the Senate, making Rell's threatened veto difficult to override, since a two-thirds majority would be needed.

There are 10 men currently on Connecticut's death row, including prisoners who committed their crimes in the 1980s.

In Missouri, Bishop Robert W. Finn of Kansas City-St. Joseph, asked for clemency for Reginald Clemons in the April 1991 murders of Robin and Julie Kerry. The sisters were raped and then pushed off a bridge.

The bishop noted he recently joined the other Catholic bishops of the state and the Missouri Catholic Conference, public policy arm of the state's bishops, in a petition asking Gov. Jay Nixon for clemency.

There are issues of "significant doubt" regarding Clemons' involvement in the murders, Bishop Finn said in a June 1 statement. Even so, he added, the clemency request is based on "a more basic principle of the fundamental dignity and value of every human life, even those guilty of the most heinous crimes."

Clemons, scheduled to be executed June 17, is one of 13 currently on Missouri's death row.

"It is my hope that our Missouri legislators will also renew initiatives for a moratorium on the use of the death penalty and establish a study commission to resolve inequities in our system, which work against the application of justice," Bishop Finn said.

In Tennessee, Paul House was fully exonerated May 12 after DNA evidence cleared him in the 1985 beating death of a woman. Tennessee prosecutors dropped all charges against House and decided not to retry him in the murder case.

House had spent more than two decades on death row. Now afflicted with multiple sclerosis, he uses a wheelchair. "I think it's over. Finally," he said in a statement. "I didn't do it."

The U.S. Supreme Court ruled in 2006 that any juror would have had a reasonable doubt about House's guilt if they had been shown the DNA evidence and other new information that would have discredited his conviction. House was released on bond last year when a federal judge ruled that he receive a new trial or be set free.

The Death Penalty Information Center said it was the 132nd exoneration from death row since 1973, but only the second in 2009 and the second in Tennessee since it reinstated the death penalty in 1977.

Bob Barr, a Republican member of the U.S. House from 1995-2003 and a U.S. attorney for the Northern District of Georgia 1986-90, argued in a May 31 opinion piece in The New York Times for the exoneration of another convicted man, Troy Davis.

"No court has ever heard the evidence of Mr. Davis' innocence," Barr said. He added courts have misread the Anti-Terrorism and Effective Death Penalty Act of 1996, which he helped write. "Nothing in the statute should have left the courts with the impression that they were barred from hearing claims of actual innocence like Troy Davis'," he said.

Davis was convicted in the 1989 murder of an off-duty police officer in Savannah, Ga. Noting that he signed a friend-of-the-court brief on Davis' behalf, Barr said, "I am a firm believer in the death penalty, but I am an equally firm believer in the rights and protections guaranteed by the Constitution. To execute Troy Davis without having a court hear the evidence of his innocence would be unconscionable and unconstitutional."

In Florida, new oral arguments were heard May 20 in the case of John Marek, who with Raymond Wigley was convicted in the 1983 kidnapping, rape and slaying of 47-year-old Adella Simmons in Dania Beach, Fla. Marek received the death penalty, but Wigley received a life sentence. Marek's attorney contends Wigley is the actual killer and said three of Wigley's former prison mates claimed Wigley confessed to Simmons' strangulation.

The attorney, Martin McClain, said he believes Marek's sentence was unconstitutional and that the 25 years Marek has spent on death row constitute cruel and unusual punishment. Marek's scheduled May 13 execution was postponed May 11.

Friday, June 12, 2009

CBLA conviction overturned in Colorado

Jimmy Ates release


From the Blog of The Innocence Project in Florida





Monday, June 1, 2009

CBLA conviction overturned in Colorado


After the FBI in 2005 abandoned a faulty scientific procedure called comparative bullet lead analysis, by which they claimed they could match bullets from a crime scene to a specific box of bullets found somewhere else, a joint task force was created consisting of national organizations such as the Innocence Project in New York and the National Association of Criminal Defense Lawyers. The Innocence Project of Florida was appointed as the "point office" for issues related to CBLA in Florida.

Last Sunday, the Associated Press wrote an article about Tim Kennedy, a Colorado man whose conviction has been thrown out, partly because of comparative bullet lead analysis. (You'll recall that Jimmy Ates, a client of the Innocence Project of Florida, was the first person in the nation to have his conviction thrown due to the FBI's disavowal of CBLA.)

During an interview Thursday at the Limon Correctional Facility on the Eastern Plains about 95 miles east of Denver, Kennedy cherished the thought of being a free man. Apart from spending time with his sister and brother, one of the first things Kennedy would do if he is freed is get a steak dinner...

At trial, the only physical evidence linking Kennedy to the crime was the FBI's comparative bullet lead analysis, which purported to be able to trace a bullet from a crime scene to a box of bullets in a suspect's possession.

That technique has since been discredited as "exceeding the limits of science" and the FBI stopped the analysis in 2005.

Tragically, both of Kennedy's parents died within the last four years, so they will not get to rejoice in his release. But Kennedy has fond memories and nothing but gratitude for his parents' solidarity and support: "There are times when it brings you to tears when you think about how lucky you are, how things have worked out, how your family stayed with you... You know, I'll never forget my parents. They spent their life savings (on his defense). Even after that you know, they stuck with me through the rest of their lives."

Monday, June 8, 2009

Fla. justices stay Johnston execution


Fla. justices stay Johnston execution


The Associated Press

TALLAHASSEE, Fla.


-- The Florida Supreme Court has stayed next week's execution of David Eugene Johnston pending DNA testing of key evidence.


The justices unanimously issued the stay Thursday.


Johnston, 49, was convicted of stabbing and strangling 84-year-old Mary Hammond at her Orlando home. The high court ordered testing of the victim's fingernail clippings, which may contain bits of flesh and blood she scratched from her attacker's body, and of Johnston's clothing and shoes.


Johnston is one of two Florida death row inmates under active death warrants. He was to be executed Wednesday.The other, John Richard Marek, 47, previously received a stay pending further appeal. Marek was convicted of kidnapping, and strangling Adella Marie Simmons in Broward County.


The New Blog of The Innocence Project of Florida


From the Blog of The Innocence Project of Florida :
New website has launched over at




and the redesigned blog can be found at


Sunday, June 7, 2009

Death row inmate asks state Supreme Court to overturn conviction


FLORIDA:
Death row inmate asks state Supreme Court to overturn conviction
Mark Twilegar never contested the penalty phase of his 2007 murder conviction.
Now, the death row inmate 1 of 8 from Lee County is challenging his conviction and death sentence in the highest court in the state, asking the Florida Supreme Court to throw out a jury's guilty verdict in the 2002 murder of North Fort Myers attorney David Thomas.
Prosecutors said Twilegar shot Thomas in the back with a shotgun, buried him while still alive and stole the $25,000 the attorney had recently withdrawn.
On Tuesday, the panel of seven justices listened to oral arguments from Twilegars attorney, who claimed the evidence for conviction was insufficient, and a state prosecutor, who asked that jurors' 2007 decision stand, despite a potential evidence error.
The review comes as Twilegar's direct appeal; all death row inmates are automatically required to appeal to the Florida Supreme Court.
During the penalty phase of Twilegar's trial in which jurors were asked to weigh sentencing him to life in prison versus death by execution
Twilegar never offered a mitigating factor to save his life. Jurors recommended death, and a judge agreed.
"This is a circumstantial evidence case," Cynthia J. Dodge, Twileger'sattorney, told the justices on Tuesday.
Twilegar, a handyman who lived in a tent on a friend's Fort Myers property, was building a deck on Thomas' Alabama home at the time of the murder. After Thomas bank withdrawal, the reason for which was never clear, the pair drove back down to Fort Myers on August 6, 2002.
Thomas' body was found weeks later, buried in a shallow grave besideTwilegar's tent site. Twilegar, who hit the road soon after Thomas went missing, was later arrested in Tennessee.
A judge in his trial allowed prosecutors to present Twilegar's cash receipts from a 7-11 and Wal-Mart as evidence, records intended to show the defendant purchased items he couldn't afford before Thomas went missing.
On Tuesday, justices called that evidence potential hearsay and thus, potentially problematic. Although the receipts were found on Twilegar at arrest, there was no foundation of evidence to tie them to him.
"I'm sort of surprised that the state would take a risk of introducing these receipts that are very indicative not only of the amount (of purchases), but of the timeline, through a deputy that could not establish the foundation," Justice Barbara J. Pariente told Assistant AttorneyGeneral Candance Sebella.
Sebella said other witnesses tied Twilegar to the shopping trips, but she admitted the admission could be an error.
"I'm saying, your honor, if there was error, it was harmless, absolutely."
Twilegar's attorney, Dodge, found less sympathy during the hearing.
"All I think you're doing here is saying there might be some holes in the state's case," Pariente told the attorney, who attacked the state's evidence as insufficient.
Dodge said she wasn't. "What I'm saying is, 'Go back to the circumstantial evidence case," she said. "Suspicious circumstances are not enough. That evidence has to be inconsistent with the theory of innocence."
And what was the defense's theory of innocence, Chief Justice Peggy Quince asked.
"That somebody else did it. We don't know who," Dodge said. "And that is a perfectly legitimate..."
Quince cut in: "Somebody else came to the same place where Mr. Twilegar was, dug a hole and put Mr. Thomas in it?"
The property was not fenced, Dodge offered.
Justices will likely return an opinion in the coming months.
(source: Naples Daily News)

Penalty phase begins in Kopsho capital murder trial


FLORIDA:


Penalty phase begins in Kopsho capital murder trial


The penalty phase of the trial of William Kopsho, who was convicted last month of 1st-degree murder and armed kidnapping in the death of his wife, began Monday morning at the Marion County Courthouse.

Over the next couple of days, the same 12-member jury who returned a guilty verdict for on May 22, will hear testimony from both sides as it weighs whether to recommend the death penalty or life in prison without parole for the 55-year-old.
Kopsho was found guilty of murdering his estranged wife, Lynne, in October 2000. He shot the 21-year-old three times with a .40-caliber handgun alongside State Road 40, then held bystanders back as they approached to assist the victim.
State prosecutors plan to present 5 aggravating circumstances to try and convince the jury Kopsho deserves a death sentence:
-that the murder occurred during the commission of the felony crime of kidnapping
-that it was especially heinous, atrocious and cruel
-that it was cold, calculated and pre-meditated-
Kopsho is a previously convicted felon who was on probation at the time of the murder
-that Kopsho is previously convicted of a violent crime.
These factors, State Attorney Brad King said in his opening statement,"set this murder and murderer apart from the norm of murder and murderers."
In his efforts to skirt a death penalty recommendation, Chief Assistant Public Defender William Miller plans to present testimony that paints his client as a man raised in a cold, emotionless household in Gary, Ind., whoran afoul of the law from an early age.
"These things do not happen in a vacuum," Miller told jurors. "You're not going to hear him being violent towards anyone other than the women he tried to love."
One of those women, Helen Little, took the stand Monday to describe how Kopsho - a former boyfriend - once sexually battered then kidnapped her in 1991 in Georgia.
"I was afraid of him and I wanted to keep my distance," Little said, recalling her mounting fear of the increasingly possessive man leading up to the crime, for which Kopsho eventually served 5 years in prison followed by 5 years of probation.
Circuit Judge David Eddy must afford the jury's recommendation "greatweight" when he sentences Kopsho at a later date. In April 2005, Eddy chose to sentence the defendant to death based on a 9-3 recommendation for death by a Sumter County jury.
That ruling came at the conclusion of Kopsho's 1st trial on these same charges. That conviction and sentence were later overturned by the Florida Supreme Court in 2007 on a technicality related to jury selection.
(source: Ocala.com)

Broward death row inmate to get new trial


FLORIDA:


Broward death row inmate to get new trial


A Broward County convicted murderer on death row will get a new trial.
In 2007, Omar Loureiro was found guilty in the stabbing death of James
Lentry and sentenced to death by Circuit Judge Ana Gardiner.
Last year, prosecutor Sheila Alu came forward saying she had heard
Gardiner and Assistant State Attorney Howard Scheinberg joking about the murder trial over dinner while the trial was ongoing.
Scheinberg was the trial prosecutor.
Now, after a series of legal wranglings, Chief Judge Victor Tobin has thrown out Loureiro's sentence and ordered a new trial, said Bruce Rogow, a lawyer hired by the Broward State Attorney's Office to handle the matter.
Gardiner has since been transferred from the criminal to the civic section.
Scheinberg is a private lawyer.
(source: Miami Herald)

Fla. marks 30 years since death penalty's return



Sun, 24 May 2009 11:00:03 GMT


Fla. marks 30 years since death penalty's return



JACKSONVILLE, Fla. (AP) Three decades have past since Florida resumed executions when John Spenkelink was strapped into Old Sparky and electrocuted, the nation's first involuntary execution after a Supreme Court ban was lifted.


Since then, the state has executed another 64 men and two women. Florida has changed its execution method from the electric chair to lethal injection and the conflict over the death penalty remains as heated as it was 30 years ago. There have been several botched executions and former Gov. Jeb Bush once imposed a moratorium to review the state's procedures and make sure they passed constitutional muster.


''I don't know how you put someone to death and it not be somewhat controversial,'' said Richard Dugger, who was assistant warden at Florida State Prison when Spenkelink was executed and later head of the Department of Corrections.


Spenkelink, 30, was executed May 25, 1979, for the slaying of traveling companion Joseph Syzmankiewicz in a Tallahassee motel Dugger became somewhat notorious for give him a couple shots of Jack Daniels whiskey just before his death.


In his trial, Spenkelink had claimed he had been raped and the death was self-defense. The jury did not buy it.


Spenkelink, until moments before he died, fought his execution. His case made five trips to the U.S Supreme Court.


His lawyer, David Kendall, now a Washington, D.C., attorney, watched him die and still believes his client shouldn't have been executed.


''The question was this the kind of murder that merited the death penalty?'' Kendall said. ''Absolutely not. This case lacks the kind of aggravating circumstance that are the hallmark of the death penalty.''


Utah had executed Gary Gillmore two years earlier for two slayings, but he did not challenge his death sentence and died by firing squad after telling prison officials, ''Let's do it.''
Spenkelink had rejected a prosecution offer to plead guilty to a charge of second-degree murder and receive a long prison sentence.


Dugger recalls the time as being one of uncertainty. Florida didn't have an executioner. It had not used the electric chair for 15 years and it had no written procedures on how to conduct an execution.


''The biggest thing about Spenkelink was that it was a new experience for everybody involved,'' Dugger said. ''There was so much attention to it, we couldn't make a mistake.''
Former state Attorney General Jim Smith received death threats against him and his family, mainly from those who opposed to the death penalty.


''We had a job to do, as grim as it was,'' Smith said.


Smith continues to believe in the death penalty, although he said efforts need to be made to ensure that no mistakes are made and innocent people aren't executed.


''It is a deterrent. It would be more of a deterrent if it took place closer to the murder than 15 to 20 years later,'' Smith said, adding that there is no way to determine its effectiveness. ''We can't measure the number of murders that did not take place.''


Smith favored the change to lethal injection in 2000.


''I felt like Old Sparky had become a negative symbol. Lethal injection was more in keeping where we were in time.''


Florida has had its share of problems while performing executions. Twice there were fires in the electric chair headpieces: Pedro Medina in 1997 and Jesse Tafero in 1990. In both cases, someone on the execution crew had replaced natural sea sponges with artificial sponges, causing flames and sparking when power was turned on in the chair.


On another occasion, Dugger recalls seeing blue electricity danced across the floor during an execution. A prisoner mopping up the floor had left a pool of water under a rubber mat in the execution chamber. Dugger said it is lucky the entire staff was not electrocuted.
The switch to lethal injection did not solve the problems. In December 2006, it took Miami killer Angel Diaz about 36 minutes to die. An autopsy showed the needles used to send lethal drugs racing through his veins had poked through into his muscles.


Bush ordered an investigation into the failure, causing a yearlong delay in executions and a change in procedures. Now, midway through the execution, the warden shakes the inmate to ensure that he is unconscious after the first chemical is administered. If inmate does not respond, the final two chemicals are injected.



In Florida, serial killers Ted Bundy and Gerald Stano, and black-widow killer Judy Buenoano were among the 44 inmates strapped into the electric chair, a three-legged oaken chair built by inmates. Another 23 inmates, including female serial killer Aileen Wuornos and Gainesville student slayer Danny Rolling, have died from lethal injection.
Today, Florida has 392 death row inmates, compared to 134 in 1979. Two, John Marek and David Johnston, recently had their executions stopped by the state Supreme Court.


Marek was convicted of the 1983 kidnapping and murder of a woman who had car trouble on Florida's Turnpike. He has received an indefinite stay claiming new evidence shows he is not the killer.


Johnston was convicted of the November 1983 slaying of 84-year-old Mary Hammond of Orlando. His execution was stopped so DNA evidence can be tested.


Some other states have ended their use of capital punishment to save money, including New Mexico. A similar measure failed by one vote in the Colorado Senate. In Florida, Gov. Charlie Crist and Attorney General Bill McCollum remain committed to the death penalty.


''Gov. Crist supports the death penalty. The heinous nature of the crimes committed by the inmates scheduled for execution ... speak for themselves,'' spokeswoman Erin Isaac said.


D. Todd Doss, a defense attorney who has represented several death row inmates in their final appeals, including Johnston, sees several changes over the last 30 years, but still doesn't think it's administered fairly.


''We still have an unrepresentative mix of people on death row,'' he said. ''Your race, gender, ethnicity, socio-economic class and geography and those of the victim have more to do with whether you end up on death row than the facts surrounding the conviction, not to mention the quality of the lawyer and the resources available to that lawyer.


''It is time for abolition of the death penalty or at a minimum a moratorium,'' said Doss, who lives in Lake City.


An American Bar Association study of Florida's death penalty system concluded that the state needed to make drastic changes in attempt to make it fairer and reduce the chance that an innocent person could be executed. Its recommendations have gone unheeded.


Mark Elliott, executive director of Floridians for Alternatives to the Death Penalty, said the state should consider the cost of the death penalty.


''Florida spends over $50 million every year on the death penalty. That's an awful lot of money spent to kill a couple of prisoners destined to die in prison anyway. Since Spenkelink, Florida has spent over $1 billion on the death penalty and amassed over 10,000 unsolved homicides,'' Elliott said.


Ron McAndrew, a former warden at Florida State Prison and now a prison consultant and anti-death penalty crusader, supervised three executions.


He points to 132 exonerated cases nationwide, including Juan Melendez of Florida, freed in 2002 for a 1983 slaying that he did not commit, as a reason to end the death penalty.


''I could have actually walked this innocent man into the death chamber, strapped him into the electric chair and literally cooked him to death!''

Broward death row case moves closer to retrial




May 20

FLORIDA:


Broward death row case moves closer to retrial----
A Broward death penalty case moved a step closer to a possible retrial when the state's highest court ordered the case back to Broward.


A convicted murderer who was sentenced to death appears close to getting a new trial, following accusations of improper conversations between the Broward County prosecutor and judge on his case.
The Florida Supreme Court said Tuesday that Omar Loureiro's murder conviction and death sentence should be sent back to Broward, where prosecutors intend to ask for a new trial and to vacate his death sentence.
In 2007, Loureiro was convicted of 1st-degree murder in the stabbing death of James Lentry, 57, and sentenced to death by Circuit Judge Ana Gardiner.
Assistant state attorney Howard Scheinberg prosecuted the case.
Last year, prosecutor and Sunrise City Commissioner Sheila Alu came
forward saying she had heard Gardiner and Scheinberg joking about the
murder trial over dinner while the trial was ongoing.
Alu also gave a sworn statement to Loureiro's former defense attorneyabout what she saw.
The Supreme Court ordered a hearing outside of Broward to determine whether the allegations were true. Lawyers for both sides interviewed those at the dinner when the alleged impropriety took place.
After 3 interviews -- with Gardiner, Scheinberg and a friend of Alu's, Lucianna Calegari -- Broward prosecutors said there was at least an appearance of impropriety. They asked the Supreme Court to return the case to Broward.
In the interviews, Calegari agreed with much of what Alu had said, saying she heard both Scheinberg and Gardiner call Loureiro guilty.
Scheinberg and Gardiner disputed that they discussed the case.
Despite the different accounts, there clearly was the appearance of impropriety, said Bruce Rogow, the lawyer hired by the Broward State Attorney's Office as counsel for the matter. That was enough to warrant a new trial, he said.'
'The state, based on the appearance of impropriety arising from undisclosed and ongoing conversations between the trial judge and prosecutor during the trial proceedings, and to preserve the integrity ofthe judicial process, will move to vacate the judgment in this case,''Rogow wrote in the motion.
The case has been reassigned to Chief Judge Victor Tobin. Rogow said he intends to file a motion to set aside the conviction.
Gardiner has since been transferred from the criminal to the civic section.
Scheinberg now is a private lawyer.
Loureiro, 46, remains in state custody in Raiford.
(source: Miami Herald)

Florida Supreme Court order in Omar Loureiro

Dated May 19, 2009

The "Agreed Motion to Amend March 31, 2009, Relinquishment Order to Relinquish Jurisdiction to the Circuit Court for the Seventeenth Judicial Circuit (Broward County) so that an Agreed Motion to Vacate the Sentence and Conviction Can Be Filed and a New Trial Ordered" is hereby granted and we issue the following revised order in place of the order dated March 31, 2009. We hereby relinquish jurisdiction to the Seventeenth Judicial Circuit in and for Broward County, Florida and appoint the Honorable Victor Tobin, Chief Judge to consider the Motion to Vacate the Conviction and the Sentence of Omar Loureiro and Order of New Trial and we hereby relieve the Honorable Lucy Chernow Brown, Circuit Judge, of the Fifteenth Judicial Circuit of Florida from any further relinquishment responsibility. If the Motion to Vacate the Conviction and Sentence of Omar Loureiro and Order of New Trial is granted, counsel for Mr. Loureiro shall immediately file a Notice of Voluntary Dismissal of his pending appeal in case SC07-1799 with this Court.

Investigation ordered into conduct of Broward judge, prosecutor



Investigation ordered into conduct of Broward judge, prosecutor
Accusations of misconduct by a Broward judge and prosecutor are under scrutiny in a death penalty case.

http://www.miamiherald.com/news/broward/story/993213.html



BY DIANA MOSKOVITZ



The state's highest court has ordered a hearing to determine the veracity of allegations that a Broward judge and prosecutor had improper conversations about a death penalty case outside the courtroom.


If true, the allegations potentially could affect the death sentence of Omar Loureiro, who was convicted of first-degree murder in 2007. The case was prosecuted by former Assistant State Attorney Howard Scheinberg in front of Circuit Judge Ana Gardiner.
Last year, prosecutor and Sunrise City Commissioner Sheila Alu came forward saying she had heard Gardiner and Scheinberg joking about the murder trial while at dinner, while the trial was ongoing.


The allegations arose during Loureiro's appeal, which has reached the Florida Supreme Court.
On March 31, the court ordered an evidentiary hearing -- outside of Broward County -- to weigh the allegations before Loureiro's full appeal is finished.


The case has been assigned to Palm Beach Circuit Judge Lucy Chernow Brown. No hearing date has been set yet.


Gardiner has since been transferred from the criminal section, and now is hearing civil cases. Scheinberg now is a private lawyer. Loureiro, 46, remains in custody at Florida State Prison in Raiford.


A jury convicted Loureiro in March 2007 of fatally stabbing 57-year-old James Lentry in 2001, after the two had sex.


Michael Tenzer, Loureiro's lawyer during the initial trial, said he believed the Supreme Court has done the right thing.


''If they are true,'' Tenzer said of the allegations, ``I would suspect that something should be done.''


Bruce Lyons, Scheinberg's lawyer, said his client still disputes Alu's allegations.
''Obviously, there seems to be a discrepancy between what is alleged to have taken place by Sheila Alu and the other participants,'' he said.


In an affidavit, Alu said that she did not come forward about the conversation until after the trial because she feared endangering her legal career and didn't know who to alert. When the alleged transgression happened, Alu was not a lawyer.


Alu said that on March 23, 2007, she was at a restaurant when Gardiner called her over and asked Alu to join her. Gardiner told Alu: ''I am with someone I should not be with,'' the affidavit stated.


Eventually, Gardiner, Scheinberg and Circuit Court Judge Charles Kaplan joined Alu and her friends.


Alu stated in the affidavit that she heard Gardiner and Scheinberg joke about the defendant being gay. They also talked about a juror who passed out after seeing photographs during trial.
Alu, concerned about the conversation, told Scheinberg what she had heard. He responded by telling her that if she felt he had broken a code of ethics, then she was obligated to report her concerns to the Florida Bar, the affidavit stated.


Alu also shared her concerns with Gardiner, the document stated.