The Jewish world recently undertook a colossal campaign to save the life of a young Jewish man sentenced to death, Martin Grossman. Spanning continents and religious denominations, countless Jews took time from busy schedules to telephone, e-mail, and write to politicians who could potentially spare Grossman from his death row fate. (The official estimate was 50,000 appeals. However, those involved in the efforts claim that there were many more. Just the petitions alone that were sent to the governor contained more than 40,000 signatures.)
At the same time, the heavenly “offices” were likewise flooded with heartfelt pleas and prayers. Jews stormed the gates of heaven, beseeching that they not be closed. None of those prayers went to waste; no prayer ever does. Someday, somewhere, those prayers will be retrieved from beneath the Heavenly Throne to generate salvation for Jews in need.
These were publicized efforts undertaken by the community at large. However, at the same time, a far more discreet, but no less intense campaign was implemented behind the scenes by experienced askanim and Jewish leaders.
One of Zman Magazine’s writers was privileged to attend many of the meetings that were held by world-renowned activists, lawyers, lobbyists, political fundraisers and philanthropists. He personally witnessed much of the incredible efforts invested in this cause.
Unquestionably, Michoel Yechiel ben Avraham, a’h, merited that his tragic fate was the catalyst for this monumental achdus/unity in Klal Yisrael. Chassidish, Litvish, Lubavitch, Satmar, Agudas Yisrael, the OU and others — all differences were put aside to save a Jewish life. Chazal’s powerful words seemed to be everyone’s mantra: “One who saves one Jewish soul is as if he has saved an entire world.”
Recruited for the cause were the best lawyers in the country, Republican Party leaders, fundraisers, political activists, influential government officials, senators, the Florida congressional delegation, prominent law professors and even Richard Nixon’s son-in-law, Donald Trump and the Pope.
Tragically, the intensive efforts did not bring about the hoped-for result. Nevertheless, they did serve to demonstrate the lengths the Jewish people will go for a worthy cause. Surely, it is no coincidence that the last words Martin Grossman murmured before he left this world were, “Ahavas Yisrael,” – “Love among fellow Jews.”
This article takes you behind the scenes for a glimpse of the tireless endeavors and ceaseless intervention that went on over the past few weeks, publicizing previously little known details about these efforts, that were heard directly from those involved in the noble efforts to save a Jewish life.
Saturday, March 20, 2010
Florida prison population rises as most states show declines, study finds
By Diana Moskovitz, The Miami Herald
7:51 AM EDT, March 17, 2010
More than half the states in the nation lowered their prison populations last year — but not Florida, where it continued to rise, according to a recent survey by the Pew Center on the States.
Nationally, 27 states saw their prison populations fall between Dec. 31, 2008, and Jan. 1, 2010, according to Prison Count 2010, released Wednesday. States with declines included New York, Mississippi and Texas.
But over the same period of time, Florida's state prison population rose 1.5 percent, or by slightly more than 1,500 inmates, the report said.
Pew pinned the problem squarely on Florida's leaders.
"In other states, like Texas and Kansas, leaders have reached across the political aisle and come to a consensus on solutions that can both protect public safety and cut corrections spending," said Adam Gelb, director of the Public Safety Performance Project at Pew Center on the States. "But that's not happening in Florida."
In response to the report, Florida Department of Corrections Secretary Walter McNeil released a statement that acknowledged the growing prison population, but pointed out that the growth was lower than the state projections.
"The prison population is still projected to grow in Florida but we are seeing the rate of that growth begin to slow down," the statement read.
Gelb said the fact that adding 1,500 prisoners was considered slower-than-expected growth showed how far Florida had to go.
As of Monday, Florida had a prison population of 101,517.
The report was compiled after Pew asked all 50 states a simple question: What is your prison population? Researchers got prison population numbers for the last day of 2008 from the national Bureau of Justice Statistics. Then they asked each state to give its prison population for the first day in 2010.
Researchers gathered the data and measured the differences.
While Florida's 1.5 percent increase was on the low end — compared with the biggest percentage jump, Indiana with a 5.3 percent increase — when it comes to counting the actual number of prisoners, Florida had the second-largest increase.
The state added 1,527 inmates into its prisons. The only state to have more was Pennsylvania, with more than 2,100 additional inmates.
Advocates for prison reform say the need is obvious. Florida doesn't have the money to build additional prisons, especially in the current economy.
"It's an absolutely critical issue because Florida can't afford to build new prisons," said Barney Bishop, CEO of Associated Industries of Florida.
Reform supporters argue that state corrections leaders need to shift money away from building prisons and put it into several different areas that include:
• Treatment and diversion programs. These provide certain offenders with therapy and drug courts to help them conquer their problems.
• Learning programs. These would be for people in prison to give them skills so they don't commit crimes again when they get out.
Nationally, the number of people in state prisons dropped very slightly, just 0.4 percent. Still, it was the first decline in the overall population of state prisons since the early 1970s, according to Pew.
"It's been going up for so long that any size drop is noticeable," Gelb said.
"But it's too early to tell whether this is a tap of the brakes or a shift in reverse."
While the number of inmates in state prisons went down overall, the number of people incarcerated in federal prisons went up 3.4 percent, to more than 208,000 inmates.
Typically, state prisons hold people convicted of crimes such as murder, robbery and rape, while federal prisons incarcerate those convicted of fraud and corruption.
7:51 AM EDT, March 17, 2010
More than half the states in the nation lowered their prison populations last year — but not Florida, where it continued to rise, according to a recent survey by the Pew Center on the States.
Nationally, 27 states saw their prison populations fall between Dec. 31, 2008, and Jan. 1, 2010, according to Prison Count 2010, released Wednesday. States with declines included New York, Mississippi and Texas.
But over the same period of time, Florida's state prison population rose 1.5 percent, or by slightly more than 1,500 inmates, the report said.
Pew pinned the problem squarely on Florida's leaders.
"In other states, like Texas and Kansas, leaders have reached across the political aisle and come to a consensus on solutions that can both protect public safety and cut corrections spending," said Adam Gelb, director of the Public Safety Performance Project at Pew Center on the States. "But that's not happening in Florida."
In response to the report, Florida Department of Corrections Secretary Walter McNeil released a statement that acknowledged the growing prison population, but pointed out that the growth was lower than the state projections.
"The prison population is still projected to grow in Florida but we are seeing the rate of that growth begin to slow down," the statement read.
Gelb said the fact that adding 1,500 prisoners was considered slower-than-expected growth showed how far Florida had to go.
As of Monday, Florida had a prison population of 101,517.
The report was compiled after Pew asked all 50 states a simple question: What is your prison population? Researchers got prison population numbers for the last day of 2008 from the national Bureau of Justice Statistics. Then they asked each state to give its prison population for the first day in 2010.
Researchers gathered the data and measured the differences.
While Florida's 1.5 percent increase was on the low end — compared with the biggest percentage jump, Indiana with a 5.3 percent increase — when it comes to counting the actual number of prisoners, Florida had the second-largest increase.
The state added 1,527 inmates into its prisons. The only state to have more was Pennsylvania, with more than 2,100 additional inmates.
Advocates for prison reform say the need is obvious. Florida doesn't have the money to build additional prisons, especially in the current economy.
"It's an absolutely critical issue because Florida can't afford to build new prisons," said Barney Bishop, CEO of Associated Industries of Florida.
Reform supporters argue that state corrections leaders need to shift money away from building prisons and put it into several different areas that include:
• Treatment and diversion programs. These provide certain offenders with therapy and drug courts to help them conquer their problems.
• Learning programs. These would be for people in prison to give them skills so they don't commit crimes again when they get out.
Nationally, the number of people in state prisons dropped very slightly, just 0.4 percent. Still, it was the first decline in the overall population of state prisons since the early 1970s, according to Pew.
"It's been going up for so long that any size drop is noticeable," Gelb said.
"But it's too early to tell whether this is a tap of the brakes or a shift in reverse."
While the number of inmates in state prisons went down overall, the number of people incarcerated in federal prisons went up 3.4 percent, to more than 208,000 inmates.
Typically, state prisons hold people convicted of crimes such as murder, robbery and rape, while federal prisons incarcerate those convicted of fraud and corruption.
Monday, March 15, 2010
Killer's sentencing revives death debate
S. BRADY CALHOUN / News Herald Writer
2010-03-14 14:32:56
PANAMA CITY — Next week, the attorneys in the Dennis Creamer case will begin arguing about whether he should get the death penalty.
Circuit Judge Dedee Costello will decide if Creamer, who was found guilty of beating and killing a 2-year-old, should be executed. As part of her decision-making process, she will have to determine if the killing was heinous, atrocious or cruel, if the baby’s death was especially painful and other points of law.
What she will not be asked to consider is how much taxpayers will have to spend to put Creamer to death.
Rex Dimmig, the chief assistant public defender of the 10th Judicial Circuit, estimated the cost of each execution and presented his findings to the Florida Legislature last year. If he is sentenced to death, Creamer’s case ultimately will cost Florida taxpayers about $24 million.
Dimmig also estimated Florida pays $51 million each year to have the death penalty rather than sending death penalty-eligible killers to prison for life. State Rep. Jimmy Patronis, R-Panama City, said the public has determined it is worth the extra cost to have a death penalty.
“I don’t know if you can put a value on what you’re doing to send a message,” Patronis said. A safe society has to subsidize things like prisons, courts and the extra costs associated with the death penalty.
State Attorney Glenn Hess declined to talk about the cost of the death penalty, saying it was a legislative matter that should rest with state officials. However, he supports the practice.
“It affirms the value we place on life and it clearly demonstrates our approbation for those who would kill another,” Hess said. He added the law and evidence-gathering has evolved to a point “where it is only imposed when justice truly demands it. And then only after careful scrutiny by the best legal scholars in society.”
Hess said the rise of DNA evidence makes the system safer both for defendants and prosecutors. However, 22 people who were on Florida’s death row have been exonerated. Nationwide, 139 people who once were on death row have been exonerated.
While Hess said he doubts the death penalty is a deterrent for future murderers, he said he does believe it prevents family members of victims from taking the law into their own hands.
“It keeps good people from turning bad,” Hess said.
Assistant Public Defender Kim Dowgul said she once shook the hand of a man who had been on death row for 17 years in Oklahoma. He was released when new evidence exonerated him, she said. That experience began to change her opinion about the death penalty and had a lasting experience on her.
“If you find out that they were, in fact, not guilty … you can’t bring them back,” Dowgul said. “There is no fixing that.”
Dowgul stressed she was giving only her opinion and not the opinion of the public defender’s office.
Not only are death penalty cases expensive to taxpayers but they also take up an inordinate amount of time. That time of state and federal judges and Florida’s Supreme Court could be used to deal with other important cases but those cases are crowded out, Dowgul said.
Deliberately killing a murderer has consequences far beyond money and time, Dowgul added.
“What we do by state sanction makes us no better than what they did probably in a fit of rage,” Dowgul said. “We are making a coherent decision to do that to another human being and this I have a problem with.”
2010-03-14 14:32:56
PANAMA CITY — Next week, the attorneys in the Dennis Creamer case will begin arguing about whether he should get the death penalty.
Circuit Judge Dedee Costello will decide if Creamer, who was found guilty of beating and killing a 2-year-old, should be executed. As part of her decision-making process, she will have to determine if the killing was heinous, atrocious or cruel, if the baby’s death was especially painful and other points of law.
What she will not be asked to consider is how much taxpayers will have to spend to put Creamer to death.
Rex Dimmig, the chief assistant public defender of the 10th Judicial Circuit, estimated the cost of each execution and presented his findings to the Florida Legislature last year. If he is sentenced to death, Creamer’s case ultimately will cost Florida taxpayers about $24 million.
Dimmig also estimated Florida pays $51 million each year to have the death penalty rather than sending death penalty-eligible killers to prison for life. State Rep. Jimmy Patronis, R-Panama City, said the public has determined it is worth the extra cost to have a death penalty.
“I don’t know if you can put a value on what you’re doing to send a message,” Patronis said. A safe society has to subsidize things like prisons, courts and the extra costs associated with the death penalty.
State Attorney Glenn Hess declined to talk about the cost of the death penalty, saying it was a legislative matter that should rest with state officials. However, he supports the practice.
“It affirms the value we place on life and it clearly demonstrates our approbation for those who would kill another,” Hess said. He added the law and evidence-gathering has evolved to a point “where it is only imposed when justice truly demands it. And then only after careful scrutiny by the best legal scholars in society.”
Hess said the rise of DNA evidence makes the system safer both for defendants and prosecutors. However, 22 people who were on Florida’s death row have been exonerated. Nationwide, 139 people who once were on death row have been exonerated.
While Hess said he doubts the death penalty is a deterrent for future murderers, he said he does believe it prevents family members of victims from taking the law into their own hands.
“It keeps good people from turning bad,” Hess said.
Assistant Public Defender Kim Dowgul said she once shook the hand of a man who had been on death row for 17 years in Oklahoma. He was released when new evidence exonerated him, she said. That experience began to change her opinion about the death penalty and had a lasting experience on her.
“If you find out that they were, in fact, not guilty … you can’t bring them back,” Dowgul said. “There is no fixing that.”
Dowgul stressed she was giving only her opinion and not the opinion of the public defender’s office.
Not only are death penalty cases expensive to taxpayers but they also take up an inordinate amount of time. That time of state and federal judges and Florida’s Supreme Court could be used to deal with other important cases but those cases are crowded out, Dowgul said.
Deliberately killing a murderer has consequences far beyond money and time, Dowgul added.
“What we do by state sanction makes us no better than what they did probably in a fit of rage,” Dowgul said. “We are making a coherent decision to do that to another human being and this I have a problem with.”
Defendant in lottery winner's death gets new lawyer
By TOM BRENNAN | The Tampa Tribune
Published: March 15, 2010
Updated: 03/15/2010 11:52 am
TAMPA - The woman accused of killing a Florida Lottery winner got a new attorney today after the public defender's office said it had an "ethical conflict."
Hillsborough Circuit Judge Daniel H. Sleet appointed the Criminal Conflict and Civil Regional Counsel to represent Dorice Donegan "Dee Dee" Moore.
Moore is charged in the death of Abraham Shakespeare, the Lakeland man who won a $30 million lottery jackpot in November 2006.
The public defender's office was appointed to represent Moore in February after she said she was indigent with only $100 in the bank, despite prosecutors' claims she siphoned $3.5 million of Shakespeare's winnings.
But Assistant Public Defender Greg Hill said his office had an ethical conflict representing Moore. He wouldn't elaborate.
Sleet appointed Christopher Boldt of the regional conflict office, which was created by the Legislature in 2007 to handle such cases.
Moore, 37, was scheduled to be arraigned on first-degree murder and illegal wiretapping charges, but that was continued because of the lawyer switch. Sleet scheduled a May 10 status hearing.
Hillsborough County sheriff's Col. Albert Frost, who is heading the investigation into Shakespeare's death, said the wiretapping charge stems from an incident in which Moore made video and audio recordings of conversations she had with Greg Todd Smith, a confidential informant. Investigators said Smith provided information that helps prove Moore tried to cover up Shakespeare's slaying.
According to court records, Moore gave Smith a .38-caliber revolver she said was used to kill Shakespeare and also asked Smith whether he knew anyone who would be willing to confess to the crime.
"This is a very complicated case," Frost said. "It is very active. It is a possibility more people might get charged in this case."
Assistant State Attorney Jay Pruner said his office has yet to decide whether it will seek the death penalty if Moore is convicted of first-degree murder.
Prosecutors have 45 days from the date a defendant is indicted to make that decision. A grand jury indicted Moore on March 11.
Moore has been held without bail since her arrest Feb. 2 on a charge of being an accessory after the fact to Shakespeare's murder.
Shakespeare, 43, was last seen alive in Lakeland in April. He was shot twice in the chest and buried under a concrete slab on a Turkey Creek property, which records show as being owned by Moore's boyfriend.
Reporter Howard Altman contributed to this report. Reporter Tom Brennan can be reached at (813) 259-7698.
Published: March 15, 2010
Updated: 03/15/2010 11:52 am
TAMPA - The woman accused of killing a Florida Lottery winner got a new attorney today after the public defender's office said it had an "ethical conflict."
Hillsborough Circuit Judge Daniel H. Sleet appointed the Criminal Conflict and Civil Regional Counsel to represent Dorice Donegan "Dee Dee" Moore.
Moore is charged in the death of Abraham Shakespeare, the Lakeland man who won a $30 million lottery jackpot in November 2006.
The public defender's office was appointed to represent Moore in February after she said she was indigent with only $100 in the bank, despite prosecutors' claims she siphoned $3.5 million of Shakespeare's winnings.
But Assistant Public Defender Greg Hill said his office had an ethical conflict representing Moore. He wouldn't elaborate.
Sleet appointed Christopher Boldt of the regional conflict office, which was created by the Legislature in 2007 to handle such cases.
Moore, 37, was scheduled to be arraigned on first-degree murder and illegal wiretapping charges, but that was continued because of the lawyer switch. Sleet scheduled a May 10 status hearing.
Hillsborough County sheriff's Col. Albert Frost, who is heading the investigation into Shakespeare's death, said the wiretapping charge stems from an incident in which Moore made video and audio recordings of conversations she had with Greg Todd Smith, a confidential informant. Investigators said Smith provided information that helps prove Moore tried to cover up Shakespeare's slaying.
According to court records, Moore gave Smith a .38-caliber revolver she said was used to kill Shakespeare and also asked Smith whether he knew anyone who would be willing to confess to the crime.
"This is a very complicated case," Frost said. "It is very active. It is a possibility more people might get charged in this case."
Assistant State Attorney Jay Pruner said his office has yet to decide whether it will seek the death penalty if Moore is convicted of first-degree murder.
Prosecutors have 45 days from the date a defendant is indicted to make that decision. A grand jury indicted Moore on March 11.
Moore has been held without bail since her arrest Feb. 2 on a charge of being an accessory after the fact to Shakespeare's murder.
Shakespeare, 43, was last seen alive in Lakeland in April. He was shot twice in the chest and buried under a concrete slab on a Turkey Creek property, which records show as being owned by Moore's boyfriend.
Reporter Howard Altman contributed to this report. Reporter Tom Brennan can be reached at (813) 259-7698.
Why Do Sexual Predators Get Released to Rape and Murder Again?
Dolores Barr, Editor and Publisher , OC180NEWS.com
Published 03/12/2010 - 7:00 a.m. Pacific Time
The scheduled release of yet another sexually violent predator raises the question of why this keeps happening. The Orange County District Attorney held a press conference to warn the community about a pending release, only to be interrupted to announce that the U.S. Attorney for the Southern District of Florida was going to issue an arrest warrant which would prevent the release. But, if it was not for pending charges from an out of state jurisdiction, another convicted serial child molester would be released from prison today.
Earlier this week, an Orange County jury recommended Rodney James Alcala receive the death penalty for kidnapping and murdering a 12-year-old Orange County girl, Robin Samsoe, and raping and murdering four Los Angeles County women in the 1970s. Now, The Orange County District Attorney's Office and Huntington Beach Police Department are seeking the public's help in identifying dozens of women and children featured in over 100 photographs found in Alcala’s Seattle storage locker.
Also this week, Huntington Beach police arrested David Bryan, a registered sex offender for attempting to meet a 13-year-old girl for sex. Fortunately, this was a police sting and nobody was harmed.
Chelsea King, 17, of San Diego County, was not so lucky. John Albert Gardner III, 30, a registered sex offender, was arrested on suspicion of rape and murder. In 2000, Gardner was convicted of a forcible lewd act on a child and false imprisonment. A psychiatrist who interviewed him said he would be a “continued danger to underage girls” because of the lack of remorse for his actions. He was sentenced to six years in prison as part of a plea agreement and served five years before he was released in 2005. He completed probation in 2008.
Yesterday, the Orange County District Attorney held a press conference to warn the community that a convicted serial child molester was scheduled to be released from prison today, after only serving just over three years in state prison. George Joseph England, 65, who spent 29 years as a fugitive after being found guilty of sexually assaulting three female children, also for 11 years molested Jackie Zudis, whom he purchased from her mother in Vietnam in the 1970s and claimed was his adopted daughter. He was not sentenced for those crimes because the victim did not report them to law enforcement until the statute of limitations had expired.
The Orange County District Attorney, OCDA, has a policy not to identify any victims of sexual assault. In this case, Jackie Zudis has asked that she be identified and her name and image be used to publicize the crimes committed against her by England and the danger he poses to society.
"This man spent a lifetime using young girls for his own perverse sexual gratification and never showing any remorse for the emotional and psychological baggage he left his victims to carry. I am sickened that my Office has been denied legal recourse to keep this child molester locked up away from children," stated District Attorney Tony Rackauckas. "Had he been convicted under the law today, England would be spending the rest of his life in prison. That's where he belongs, not on our streets and in our neighborhoods.”
After 29 years as a fugitive and an additional year in federal custody on passport fraud charges, England was returned to Orange County for sentencing in the 1977 conviction. On Sept. 1, 2006, England was sentenced to three years to life in state prison. But, under the sentencing laws of 1977, the maximum sentence he could serve in state prison was six years. Based on his prison credit for good time and work time, England was scheduled to be released today after serving just over three years.
"Beware: He's not changed, nor will he change," said Zudis as a warning to the community in a March 8, 2010, interview. "Your little girls are in trouble and you need to protect them, and you need to listen to them, and if you see them changing you need to question it and don't shield it. It's not some dirty little secret.”
In September 2009, the California Board of Parole Hearings found that England was not "suitable for parole" because he continues to "pose a current risk of danger if released into society." Nevertheless, he was scheduled for release today.
Even though England would have completed his prison term, the District Attorney has one last chance to keep such a person off the streets. This would be to have England committed to a state mental hospital under the Sexually Violent Predator, SVP, laws. The OCDA had planned to file a petition under this law to keep England in a mental institution upon completing his sentence. But, it was not to be.
In order to file a petition under the law, two independent evaluators from the Department of Mental Health must first determine whether the inmate meets the criteria of an SVP. If both evaluators opine that he meets the criteria, the case is forwarded to the OCDA for review and filing of a petition. If there is a difference of opinion, as there was in this case, two more evaluators are assigned the case and must agree that the inmate meets the criteria before forwarding the case to the OCDA to file an SVP petition. If one or both of the second group of evaluators does not conclude the person meets the SVP criteria, the person is released. End of story.
According to Nancy Kincaid, spokesperson for the California Department of Mental Health, “When an individual is referred by the Board of Prison Hearings for an evaluation by the Department of Mental Health, the Department of Mental Health, by law, cannot release the information to anyone, including the DA. It’s a privacy protected psychological evaluation.”
The Department of Mental Health informs the Board of Prison Hearings whether or not the person is an SVP, but no other information is provided. If the Department of Mental Health determines the person is not an SVP, as was the case with England, there is no further recourse for the DA and the person is released.
For a person to remain in state custody after they have served out their prison term, there must be mental illness involved. Kincaid told www.OC180NEWS.com “Many people would think that anyone who does something like this must have a mental illness, but that is just not necessarily the case.”
Is this case unusual? Kincaid said “No, not at all. There are tens of thousands of sex offenders who have gotten out of prison this way.”
The two people who make these irrevocable and unchallengeable conclusions are independent clinical psychologists, licensed by the State of California and specially trained for this kind of evaluation. But, they are not employees of the Department of Mental Health, their identities are not released, they are not subject to any public scrutiny, , and their conclusions are not challengeable by the Department of Mental Health, the DA, or anyone else.
The department supervises the process and the application of procedures by the evaluators, but “you can’t force a clinician to change their opinion”, said Kincaid. And, their opinions are absolutely binding if they decide a person is not an SPV.
The process of committing a person to a state mental institution applies after that person has served out their criminal sentence. Under new laws, namely the 2006 “Jessica’s Law”, the mandatory prison terms are much longer than those in effect when George England, Rodney Alcala, and John Gardner committed their crimes. Thus, Kincaid said “They would probably not be evaluated for SVP status because they would not get out of prison.”
Published 03/12/2010 - 7:00 a.m. Pacific Time
The scheduled release of yet another sexually violent predator raises the question of why this keeps happening. The Orange County District Attorney held a press conference to warn the community about a pending release, only to be interrupted to announce that the U.S. Attorney for the Southern District of Florida was going to issue an arrest warrant which would prevent the release. But, if it was not for pending charges from an out of state jurisdiction, another convicted serial child molester would be released from prison today.
Earlier this week, an Orange County jury recommended Rodney James Alcala receive the death penalty for kidnapping and murdering a 12-year-old Orange County girl, Robin Samsoe, and raping and murdering four Los Angeles County women in the 1970s. Now, The Orange County District Attorney's Office and Huntington Beach Police Department are seeking the public's help in identifying dozens of women and children featured in over 100 photographs found in Alcala’s Seattle storage locker.
Also this week, Huntington Beach police arrested David Bryan, a registered sex offender for attempting to meet a 13-year-old girl for sex. Fortunately, this was a police sting and nobody was harmed.
Chelsea King, 17, of San Diego County, was not so lucky. John Albert Gardner III, 30, a registered sex offender, was arrested on suspicion of rape and murder. In 2000, Gardner was convicted of a forcible lewd act on a child and false imprisonment. A psychiatrist who interviewed him said he would be a “continued danger to underage girls” because of the lack of remorse for his actions. He was sentenced to six years in prison as part of a plea agreement and served five years before he was released in 2005. He completed probation in 2008.
Yesterday, the Orange County District Attorney held a press conference to warn the community that a convicted serial child molester was scheduled to be released from prison today, after only serving just over three years in state prison. George Joseph England, 65, who spent 29 years as a fugitive after being found guilty of sexually assaulting three female children, also for 11 years molested Jackie Zudis, whom he purchased from her mother in Vietnam in the 1970s and claimed was his adopted daughter. He was not sentenced for those crimes because the victim did not report them to law enforcement until the statute of limitations had expired.
The Orange County District Attorney, OCDA, has a policy not to identify any victims of sexual assault. In this case, Jackie Zudis has asked that she be identified and her name and image be used to publicize the crimes committed against her by England and the danger he poses to society.
"This man spent a lifetime using young girls for his own perverse sexual gratification and never showing any remorse for the emotional and psychological baggage he left his victims to carry. I am sickened that my Office has been denied legal recourse to keep this child molester locked up away from children," stated District Attorney Tony Rackauckas. "Had he been convicted under the law today, England would be spending the rest of his life in prison. That's where he belongs, not on our streets and in our neighborhoods.”
After 29 years as a fugitive and an additional year in federal custody on passport fraud charges, England was returned to Orange County for sentencing in the 1977 conviction. On Sept. 1, 2006, England was sentenced to three years to life in state prison. But, under the sentencing laws of 1977, the maximum sentence he could serve in state prison was six years. Based on his prison credit for good time and work time, England was scheduled to be released today after serving just over three years.
"Beware: He's not changed, nor will he change," said Zudis as a warning to the community in a March 8, 2010, interview. "Your little girls are in trouble and you need to protect them, and you need to listen to them, and if you see them changing you need to question it and don't shield it. It's not some dirty little secret.”
In September 2009, the California Board of Parole Hearings found that England was not "suitable for parole" because he continues to "pose a current risk of danger if released into society." Nevertheless, he was scheduled for release today.
Even though England would have completed his prison term, the District Attorney has one last chance to keep such a person off the streets. This would be to have England committed to a state mental hospital under the Sexually Violent Predator, SVP, laws. The OCDA had planned to file a petition under this law to keep England in a mental institution upon completing his sentence. But, it was not to be.
In order to file a petition under the law, two independent evaluators from the Department of Mental Health must first determine whether the inmate meets the criteria of an SVP. If both evaluators opine that he meets the criteria, the case is forwarded to the OCDA for review and filing of a petition. If there is a difference of opinion, as there was in this case, two more evaluators are assigned the case and must agree that the inmate meets the criteria before forwarding the case to the OCDA to file an SVP petition. If one or both of the second group of evaluators does not conclude the person meets the SVP criteria, the person is released. End of story.
According to Nancy Kincaid, spokesperson for the California Department of Mental Health, “When an individual is referred by the Board of Prison Hearings for an evaluation by the Department of Mental Health, the Department of Mental Health, by law, cannot release the information to anyone, including the DA. It’s a privacy protected psychological evaluation.”
The Department of Mental Health informs the Board of Prison Hearings whether or not the person is an SVP, but no other information is provided. If the Department of Mental Health determines the person is not an SVP, as was the case with England, there is no further recourse for the DA and the person is released.
For a person to remain in state custody after they have served out their prison term, there must be mental illness involved. Kincaid told www.OC180NEWS.com “Many people would think that anyone who does something like this must have a mental illness, but that is just not necessarily the case.”
Is this case unusual? Kincaid said “No, not at all. There are tens of thousands of sex offenders who have gotten out of prison this way.”
The two people who make these irrevocable and unchallengeable conclusions are independent clinical psychologists, licensed by the State of California and specially trained for this kind of evaluation. But, they are not employees of the Department of Mental Health, their identities are not released, they are not subject to any public scrutiny, , and their conclusions are not challengeable by the Department of Mental Health, the DA, or anyone else.
The department supervises the process and the application of procedures by the evaluators, but “you can’t force a clinician to change their opinion”, said Kincaid. And, their opinions are absolutely binding if they decide a person is not an SPV.
The process of committing a person to a state mental institution applies after that person has served out their criminal sentence. Under new laws, namely the 2006 “Jessica’s Law”, the mandatory prison terms are much longer than those in effect when George England, Rodney Alcala, and John Gardner committed their crimes. Thus, Kincaid said “They would probably not be evaluated for SVP status because they would not get out of prison.”
Bill on juvenile inmates makes strides in Tallahassee
March 13, 2010
BY JOHN A. TORRES
FLORIDA TODAY
Backers of a state bill that would provide a chance at freedom for children sentenced to long prison sentences are growing confident as the proposed legislation made it through a crucial Senate committee this week, further clearing the way for a possible vote by lawmakers.
The Second Chance for Children in Prison Act, the brainchild of Florida State University law professor Paolo Annino, would bring back the possibility of parole for children who were sentenced to more than 10 years in prison before they turned 15. The children must have served at least eight years, must be determined to have been rehabilitated, and must not have any disciplinary reports for the previous two years, among other requirements.
Annino sent a congratulatory e-mail to staffers and supporters after learning of this week's 6-1 vote.
The bill, which passed unanimously through the Florida House Public Safety and Domestic Security Committee earlier this month, now has to go through the House and Senate's Criminal Justice Appropriations Committee.
"This bill allows redemption for those who made mistakes as children and gives them a second chance in life," said supporter Sheila Hopkins, associate director for social concerns for the Florida Catholic Conference in Tallahassee.
The sponsors of the separate but identical bills -- Rep. Michael Weinstein and Sen. Arthenia Joyner -- both serve on the Criminal Justice Appropriations Committee.
"In terms of saving the state money and still ensuring public safety, allowing the parole commission the ability to review cases of inmates sentenced as juveniles age 15 and younger who meet certain qualifications and have demonstrated they can be rehabilitated fits into the new paradigm of re-entry," Hopkins said.
The bill could directly affect a brother and sister from Port St. John who were sentenced to 18 years in prison followed by a lifetime of probation after gunning down their father's girlfriend in 1999.
Catherine Jones, now 24, was 13 when she and her then-12-year-old brother Curtis Jones originally were charged with first-degree murder in the shooting death of 29-year-old Nicole Speights. They pleaded guilty to second-degree murder. Catherine Jones is due out in six years, and Curtis Jones is scheduled for release from prison in about seven years because of another infraction.
Last year, Catherine Jones told FLORIDA TODAY that the murder was part of a plot to kill Speights, their father and another relative because the children were being sexually abused by the other relative.
Some documents support her claim, including reports from the Department of Children and Families that found indications of sexual abuse in the home. The other relative is a registered sex offender who reportedly lives in Brevard County.
"Curtis told me he is praying for passage of the bill," Annino said earlier this month.
Contact Torres at 242-3649 or jtorres@floridatoday.com.
BY JOHN A. TORRES
FLORIDA TODAY
Backers of a state bill that would provide a chance at freedom for children sentenced to long prison sentences are growing confident as the proposed legislation made it through a crucial Senate committee this week, further clearing the way for a possible vote by lawmakers.
The Second Chance for Children in Prison Act, the brainchild of Florida State University law professor Paolo Annino, would bring back the possibility of parole for children who were sentenced to more than 10 years in prison before they turned 15. The children must have served at least eight years, must be determined to have been rehabilitated, and must not have any disciplinary reports for the previous two years, among other requirements.
Annino sent a congratulatory e-mail to staffers and supporters after learning of this week's 6-1 vote.
The bill, which passed unanimously through the Florida House Public Safety and Domestic Security Committee earlier this month, now has to go through the House and Senate's Criminal Justice Appropriations Committee.
"This bill allows redemption for those who made mistakes as children and gives them a second chance in life," said supporter Sheila Hopkins, associate director for social concerns for the Florida Catholic Conference in Tallahassee.
The sponsors of the separate but identical bills -- Rep. Michael Weinstein and Sen. Arthenia Joyner -- both serve on the Criminal Justice Appropriations Committee.
"In terms of saving the state money and still ensuring public safety, allowing the parole commission the ability to review cases of inmates sentenced as juveniles age 15 and younger who meet certain qualifications and have demonstrated they can be rehabilitated fits into the new paradigm of re-entry," Hopkins said.
The bill could directly affect a brother and sister from Port St. John who were sentenced to 18 years in prison followed by a lifetime of probation after gunning down their father's girlfriend in 1999.
Catherine Jones, now 24, was 13 when she and her then-12-year-old brother Curtis Jones originally were charged with first-degree murder in the shooting death of 29-year-old Nicole Speights. They pleaded guilty to second-degree murder. Catherine Jones is due out in six years, and Curtis Jones is scheduled for release from prison in about seven years because of another infraction.
Last year, Catherine Jones told FLORIDA TODAY that the murder was part of a plot to kill Speights, their father and another relative because the children were being sexually abused by the other relative.
Some documents support her claim, including reports from the Department of Children and Families that found indications of sexual abuse in the home. The other relative is a registered sex offender who reportedly lives in Brevard County.
"Curtis told me he is praying for passage of the bill," Annino said earlier this month.
Contact Torres at 242-3649 or jtorres@floridatoday.com.
Saturday, March 13, 2010
Florida State in retarded case of David Johnston
Florida State in retarded case of David Johnston :
http://www.thedailyshow.com/watch/mon-june-24-2002/whaaaa-?xrs=share_fb
Have a nice day.
http://www.thedailyshow.com/watch/mon-june-24-2002/whaaaa-?xrs=share_fb
Have a nice day.
Look at oral argument in Florida Supreme Court in David Johnston
You can look at the oral argument in Florida Supreme Court
in the case of David Johnston.
Lawyer Todd Doss argues
The transcript from oral argument in Florida Supreme Court of David Johnston
http://david-johnston.us/legal/transcriptoral.htm
HEAR YE, HEAR YE, HEAR YE
SUPREME COURT OF FLORIDA IS NOW
IN SESSION.
ALL WITH CAUSE TO PLEAD
DRAW NEAR,
GIVE ATTENTION, AND YOU SHALL
BE HEARD.
GOD SAVE THIS UNITED STATES.
THIS GREAT STATE OF FLORIDA.
AND THIS HONORABLE COURT.
LADIES AND GENTLEMEN, THE
FLORIDA SUPREME COURT.
PLEASE BE SEATED.
>> GOOD MORNING.
AND WELCOME TO THE FLORIDA
SUPREME COURT.
THE FIRST CASE ON OUR CALENDAR,
JOHNSON VERSUS STATE.
ARE THE PARTIES READY?
YOU MAY PROCEED, MR.^DOSS.
>> MAY IT PLEASE THE COURT.
TODD DOSS ON BEHALF OF DAVID
JOHNSTON.
WE'RE HERE THIS MORNING FROM
THE DENIAL OF
MR.^JOHNSTON'S POST-CONVICTION
MOTION ALLEGING NEWLY
DISCOVERED EVIDENCE WE HAD
FILED BASED UPON A NEWLY
OBTAINED SCORE OF, IQ SCORE OF
61 OBTAINED ON THE WAIS-IV.
>> LET ME ASK YOU A PRELIMINARY
QUESTION.
WHEN WAS THE WAIS-IV TEST FIRST
AVAILABLE?
>> IN LATE 2008.
I BELIEVE THE WEB SITE HAD SAID
AUGUST 2008.
THE DOCTORS TOLD ME NOVEMBER
2008.
AND I, IF THE COURT WILL RECALL
I CAME ON THE CASE JUST RIGHT
AT THE TIME THE WARRANT WAS
SIGNED, RIGHT THERE IN MAY.
I BELIEVE IT WAS LIKE THE LAST
WEEK OF APRIL 1st WEEK OF MAY
IN 2009.
THAT --
>> HE WAS WITHOUT AN ATTORNEY
FOR A PERIOD OF TIME?
>> EFFECTIVELY SO, JUSTICE
PARIENTE.
WE DISCUSSED THAT IN MAY.
THEY HAD FILED A MOTION TO
WITHDRAW. BASICALLY LANGUISHED
IN FRONT OF JUDGE WATTLES FOR A
LONG PERIOD OF TIME.
AFTER THE PRIOR MENTAL
RETARDATION HEARING AND
SUBSEQUENT AFFIRMNESS BY THIS
COURT MR.^JOHNSTON'S COUNSEL,
MR.^MILLS WITH DREW.
ANOTHER COUNSEL WAS APPOINTED
INDICATED HE DIDN'T SEE ANY
CLAIMS. IT WENT BACK TO THE
MIDDLE REGION.
THE MIDDLE REGION HAD IT WHEN I
WAS APPOINTED WHEN GOVERNOR
CRIST SIGNED THE WARRANT.
>> LET ME ASK YOU ABOUT THE
TIME LIMITATIONS ARE
APPLICABLE.
I UNDERSTAND IT IS A
COMPLICATED SITUATION.
NOW ISN'T IT, THE CASE, THAT
THERE'S A ONE-YEAR LIMITATION
WITH RESPECT TO NEWLY
DISCOVERED EVIDENCE CLAIMS THAT
RUNS FROM THE TIME THAT THE
NEWLY DISCOVERED EVIDENCE WAS
DISCOVERED OR SHOULD HAVE BEEN
COVERED THROUGH THE EXERCISE OF
DUE DILIGENCE?
>> I WOULD AGREE WITH THAT.
JUSTICE CANADY.
>> OKAY.
I UNDERSTAND WE'VE GOT THESE
FACTS YOU'RE TALKING ABOUT
WHETHER HE WAS SENTENCED AND WHO
WAS DOING WHAT.
BUT WOULDN'T, IN THIS CASE,
THE ONE YEAR CLOCK, ABSENT
SOME EXCEPTION, START RUNNING
AT THE TIME THIS TEST BECAME
AVAILABLE, GENERALLY AVAILABLE?
>> MY ARGUMENT, JUSTICE CANADY,
IS THAT THE CLOCK BEGAN TO RUN
WHENEVER I BECAME AWARE
OF IT.
AS HE WAS EFFECTIVELY WITHOUT
COUNSEL AND LANGUISHING.
WHICH WOULD PLACE IT IN --
>> IS THERE AUTHORITY TO
SUPPORT THAT?
BECAUSE, YOU KNOW, OR, IT IS
ORDINARILY THE CASE THAT THE
CLOCK BEGINS TO RUN WHEN YOU
SHOULD HAVE KNOWN ABOUT IT
THROUGH THE EXERCISE OF DUE
DILIGENCE.
OBVIOUSLY, THIS TEST IS A TEST
THAT IS NOT SOMETHING THAT IS
SECRET.
IT'S A WIDELY KNOWN TEST, AND
WHEN THERE'S A NEW VERSION THAT
COMES OUT, THAT IS GOING TO BE
SOMETHING THAT WOULD BE WIDELY
PUBLICLY KNOWN.
THE, SO THE NOTION THAT COUNSEL
COULD NOT DETERMINE IT?
WHETHER, YOU KNOW, WHETHER
THERE IS A GAP IN COUNSEL HOW
THAT WOULD AFFECT THIS, THAT'S
A DIFFERENT QUESTION.
BUT ABSENT SOME CIRCUMSTANCE
SUCH AS THAT, WOULDN'T YOU
AGREE THAT THE CLOCK WOULD
START RUNNING, WHEN THE TEST
CAME OUT?
>> I DON'T BELIEVE THAT IS THE
WAY IT READS.
I BELIEVE IT READS THROUGH THE
USE OF DILIGENCE.
AND I CAN ONLY SPEAK TO THE
DILIGENCE I USED WHENEVER I
RECEIVED THE CASE AND HAD HIM
EVALUATED WITHIN A WEEK.
THAT IS WHENEVER I LEARNED IT.
I CAN TELL THAT --
>> IF WE FOLLOW THAT, WHEN WE
ESSENTIALLY, IF WE FOLLOW WHAT
YOU'RE SUGGESTING, WHEN WE
ESSENTIALLY HAVE A SITUATION
WHERE, AT LEAST POTENTIALLY,
THESE CLAIMS, BASED ON, THIS
NEW TEST COULD JUST KIND OF BE
SITTING OUT THERE, AND BECAUSE
COUNSEL DOESN'T HAPPEN TO FIND
OUT ABOUT IT, THEY COULD BE
RAISED, WHEN COUNSEL GETS
AROUND IT, TO CHECKING OUT
ALTERNATIVES, VARIOUS COURSES
OF ACTION ON THE EVE OF
EXECUTION.
WE WOULD FACE WHAT WE'RE FACING
RIGHT NOW, I DON'T KNOW HOW
MANY CASES, BUT PROBABLY BE
SOME OTHER CASES WHERE THERE
ARE CLAIMS THAT COULD BE MADE
ALONG THESE LINES.
AND ISN'T THAT A PROBLEM?
THAT CAN JUST SIT THERE, UNTIL
COUNSEL GETS AROUND TO IT, AND
RAISED IT AT THE 11th HOUR?
>> I BELIEVE THAT IS WHY,
JUSTICE CANADY .THERE IS A
DILIGENCE PRONG BECAUSE IT IS
INDIVIDUALIZED DETERMINATION
BASED ON THE CIRCUMSTANCES OF
THE CASE.
>> WHAT I WANT TO ASK YOU ON
THAT, YOU RAISED A VERY SERIOUS
CLAIM, I THINK IT IS A SERIOUS
CLAIM, IF MR.^JOHNSTON IS IN
FACT MENTALLY RETARDED AS
CONTEMPLATED BY ATKINS AND THE
LEGISLATURE --
YOU CAME ON THE CASE.
YOU SAID IN IT WAS MAY OF 2009?
>> I BELIEVE THE ORDER OF
APPOINTMENT WAS --
>> THE FIRST ISSUE YOU RAISED
TO THIS COURT, WHAT YOU
OBTAINED IS A STAY OF EXECUTION
WAS DNA EVIDENCE WOULD
EXONERATE THIS DEFENDANT.
NOW, AS A OFFICER OF THIS
COURT, AND I'M NO EXPERT ON
MENTAL RETARDATION, WOULDN'T
HIS STATUS, HIS ABILITY TO
COMMUNICATE, HIS OTHER
DEFICITS, THAT WOULD BE
INDICATIVE OF SOMEBODY WHO IS
MENTALLY RETARDED BE SOMETHING
THAT YOU WOULD HAVE BEEN ABLE
TO DISCERN UPON HIS INITIAL,
YOUR INITIAL MEETING WITH HIM?
>> NOT EXACTLY, JUSTICE
PARIENTE. I HAD RAISED A CLAIM THAT
ATKINS SHOULD BE EXTENDED TO
THOSE MENTALLY ILL OR
BRAIN-DAMAGED BECAUSE I THOUGHT
MR.^JOHNSTON WAS IN THE SAME
CLASS AS THOSE MENTALLY
RETARDED.
BECAUSE OF LATENESS OF COMING
IN I WAS AWARE OF THE 2005
DETERMINATION AND THE WAIS-III
SCORE IN 2004.
I DIDN'T HAVE ANY SCORE AT THAT
POINT IN TIME AS I LAID OUT IN
THE SPECIFIC MOTION.
I SPOKE TO DR.^KROP AND
DR.^EISENSTEIN.
DR.^KROP SAID THERE WAS A
WAIS-IV OUT THERE ALTHOUGH HIS
SCHEDULE DIDN'T ALLOW HIM TO
ADMINISTER THE WAIS-IV.
THAT'S WHY --
>> THE REAL QUESTION, SOMEONE
WITH AN IQ, ALLEGEDLY 61,
WOULDN'T THERE BE SOME PHYSICAL
MANIFESTATIONS OF THAT THAT
WOULD BE APPARENT TO SOMEONE
TALKING WITH WHIM?
IF YOU HAVE TO MEET WITH HIM
HAD, WOULDN'T THAT KIND OF IQ
SORT OF BE APPARENT IN
CONVERSATIONS?
>> IT WAS APPARENT AND WHY I
HAVE THE ATKINS CLASS EXTENDED.
FRANKLY I WAS BAFFLED BY THE
84.
THAT'S WHY I SUBSEQUENTLY HAD
HIM TESTED WITH THE WAIS-IV
KNOWING IT WAS MORE ACCURATE
ASSESSMENT BASED ON
RECOMMENDATIONS OF DOCTORS KROP
AND EISENSTEIN?
>> YOU COULDN'T AT THAT POINT
FIND ANYONE ELSE TO CONDUCT
THIS TEST OTHER THAN DR.^KROP?
I WOULD ASSUME THAT THE WAIS-IV
IS AVAILABLE TO WHOEVER
ADMINISTERS, PSYCHOLOGISTS OR
PSYCHIATRISTS AND THAT, NO ONE
OTHER THAN DR.^KROP, YOU
COULDN'T GET ANYONE OTHER THAN
DR.^KROP TO HAVE DONE THIS?
>> I ATTEMPTED TO HAVE
DR.^EISENSTEIN DO IT.
HE DIDN'T HAVE IT AT THAT
POINT.
HE ORDERED IT.
BY THE TIME HE GOT THE TEST WE
WERE BEFORE THIS COURT BECAUSE
AS THE COURT'S WELL AWARE, IT
MOVES SO QUICKLY ONCE A WARRANT
IS SIGNED AND I WAS, AS WELL, I
WAS ACCLIMATING MYSELF WITH THE
CASE HAVING BEEN INUNDATED WITH
MANY BOXES OF MATERIALS AND NOT
HAVING HAD, NOT IF MY CASE FROM
THE BEGINNING WHERE I HAVE A
BREADTH OF KNOWLEDGE ABOUT THE
CASE.
>> THERE IS NO AUTHORITY THAT
WOULD SUGGEST THAT THAT
ONE-YEAR TIME WOULD BE TOLLED
BECAUSE THE APPEAL OF ANOTHER
SUCCESSIVE POST-CONVICTION
MOTION IS PENDING?
>> YOUR HONOR, I DON'T BELIEVE,
I DON'T BELIEVE THAT THE
TRIAL COURT HAD JURISDICTION TO
HEAR THE 3851.
I FILED IT WAS STILL, WHILE IT
WAS STILL OUT.
IT WAS READY TO BE HEARD
IMMEDIATELY COMING OFF A --
>> BUT, WELL, IN FACT YOU FILED
THIS WHILE THE CASE WAS STILL
UP HERE, THE OTHER CASE.
I DON'T UNDERSTAND HOW, I MEAN,
I DON'T UNDERSTAND THAT ABOUT
THE TRIAL COURT NOT HAVING
JURISDICTION.
THE FILING OF THE CLAIM,
WHETHER IT IS GOING TO BE HEARD
IMMEDIATELY, THAT'S MAYBE A
DIFFERENT ISSUE.
BUT IS THERE, IS THERE ANY
AUTHORITY THAT WOULD SUGGEST
THAT STATUE IS TOLLED BY
THE PENDENCY OF
APPEAL OF A ONE YEAR
POST-CONVICTION MOTION?
>> I CAN'T SUGGEST ANOTHER CASE
BUT TO SUGGEST THE TRIAL COURT
DOESN'T HAVE JURISDICTION TO
HEAR IT.
>> WE HAVE CASES PROCEDURE TO
BE FOLLOWED.
IT IS TO BE FILED AND THEN
STAYED.
I LIKE TO ASK A QUESTION,
ASSUMING WE GET PAST THE FIRST
PRONG OF TIMELINESS, ABOUT
WHETHER YOU SET FORTH A LEGAL
OR FACTUALLY SUFFICIENT CLAIM.
IT IS ONE THING TO SAY THAT
THIS WAIS-IV IS A REFINEMENT,
AND, THAT IT'S, QUOTE, A BETTER
TEST.
BUT WOULD YOU AGREE THAT IN
ORDER FOR IT TO QUALIFY AS
NEWLY DISCOVERED EVIDENCE,
THAT COULD LEAD TO REASONABLE
PROBABILITY OF A LESSER
SENTENCE OR IN THIS CASE,
IMMUNITY FROM THE EXECUTION,
THAT YOU WOULD HAVE TO SHOW
THAT THE PRIOR TEST, WAS, DID
NOT ACCURATELY MEASURE HIS
INTELLECTUAL FUNCTIONING?
>> I DON'T BELIEVE THAT IT, I
CAN NOT AND SAY THAT IT WAS
INACCURATE.
>> SO THAT, HERE'S THE PROBLEM.
IF THE WAIS-III WAS NOT INACCURATE
AND IT WAS SCORE THAT WAS
OBTAINED OVER A PERIOD OF NOT
JUST DURING THE LITIGATION BUT
ALSO WHEN HE WAS AGE, 13 OR 14,
THEN HOW ARE, YOU KNOW, HOW
ARE YOU GOING TO OVERCOME THE
BARRIER THAT SOME ACTUALLY
NEWLY DISCOVERED EVIDENCE SUCH
THAT IT IS ENTITLED TO, YOU
KNOW, FOR YOU TO HAVE A WHOLE
NEW HEARING ON, YOU KNOW, BOTH,
ALL THREE PRONGS OF THE ATKINS,
OR THIS COURT'S THREE-PRONGED
TEST FOR MENTAL RETARDATION?
I'M TRYING TO SEE WHERE WE
WOULD GO FOR THIS
IF THERE ISN'T ANYTHING THAT
CALLS INTO QUESTION THE
ACCURACY AND VALIDITY OF THE
PRIOR TEST?
>> EACH VERSION OF THE TEST,
BECOMES, I BELIEVE, BECOMES
MORE AND MORE ACCURATE.
I WOULD LIKEN IT TO IF WE WERE
TO COMPARE IT TO THE ADVANCE
FROM SUNDIAL TO A CLOCK, TO A
DIGITAL CLOCK.
AS WE REFINE AND GET MORE
ACCURATE, WASN'T ANY OF THE
PRIOR ONES WERE NECESSARILY
INACCURATE.
WE HAVE A BETTER IDEA WHERE
WE'RE AT.
>> IF THAT IS THE ANALOGY,
THERE SHOULD BE NO REASON WAIS-III,
THERE SHOULD BE NO, THAT
HAS TO CALL IN QUESTION THE
PRIOR TESTS DID NOT ACCURATELY
EVALUATE HIS INTELLECTUAL
FUNCTIONING.
IT'S NOT JUST, WELL, IT WAS
2:00 TWO YEARS AGO ON THAT
CLOCK BUT NOW IT'S GOING TO BE
2:00 AND 10 SECONDS.
YOU'RE TALKING ABOUT ALMOST A
STANDARD, WELL, AT
LEAST A STANDARD DEVIATION,
FROM 84 TO 61?
THAT IS A SIGNIFICANT
DIFFERENCE.
>> AND IT IS NOT A REFINEMENT.
THAT IS WHAT THE CIRCUIT COURT
HAD USED.
IT WAS A NEW CONFIGURATION IS
WHAT WE HAD PLED.
IT WAS A NEW CONFIGURATION,
THAT ADDED,
I BELIEVE THE COURT USED FROM
DR.^EISENSTEIN, IT WAS A NEW
CONFIGURATION OF FOUR INDEX
SCORES RATHER THAN A VERBAL AND
PERFORMANCE.
>> THE PROBLEM IS WE DON'T RIGHT
NOW, AND THIS IS WHERE I AM
CONCERNED WITH, I HAVE THE
TRIAL COURT'S ORDER.
THE TRIAL COURT FOUND THERE WAS
NO EVIDENCE PRESENTED THAT
CALLS INTO QUESTION THE
VALIDITY OF THE WAIS-III BUT
THERE WAS NO EVIDENTIARY
HEARING, CORRECT?
>> THAT'S CORRECT.
>> JUDGE PERRY INDICATED HE DID
INDEPENDENT RESEARCH.
A LOT OF EVIDENCE IS
REFINEMENT.
FIRST PAGE OF HIS ORDER HE SAID
HE DID INDEPENDENT RESEARCH.
THAT IS NOT THE STANDARD
WHENEVER WE'RE PROCEEDING UNDER
NEWLY DISCOVERED EVIDENCE CLAIM
WHETHER THE MOTIONS FILES AND
RECORDS CONCLUSIVELY REFUTE THE
CLAIM.
WHAT IS IN THERE DOESN'T
CONCLUSIVELY REFUTE THE.
A LOT OF THIS IS FLESHED --.
>> YOU'RE DISPUTING THE CLAIM
WAIS-IV IS NOT A SUBSTANTIAL --
IN MANNER THAT WOULD
INVALIDATE THE PREVIOUS
WAIS-III TEST RESULTS ARE YOU
CONCEDING THAT FINDING NEEDS
TO BE FLESHED
OUT RATHER THAN SUMMARILY
DENIED.
>> ABSOLUTELY.
I BELIEVE WHEN WE GET INTO THE
WAY THAT IT IS NEWLY CONFIGURED
THAT WOULD, THAT THAT WOULD
FLESH THAT OUT AND THAT WOULD
SHOW THAT THAT IS AN INACCURATE
ASSESSMENT AND THAT IT IS NOT A
REFINEMENT.
IT IS A NEW CONFIGURATION.
>> DID YOU PLEAD THAT?
>> YES. I HAD PUT THE QUOTES FROM
DR.^EISENSTEIN AND DR.^KROP. IT
WAS A NEW CONFIGURATION.
BASED ON DIFFERENT FACTORS THAN
BEFORE.
>> I UNDERSTAND.
DID YOU PLEAD THAT THE PRIOR
TEST WAS NOT A VALID TEST OR
SOMETHING LIKE THAT?
>> WHAT I PLED WAS THAT THIS
WAS MORE ACCURATE, MORE
RELIABLE AND MORE VALID.
I CAN'T, JUSTICE CANADY, I CAN'T
SAY IT WAS INACCURATE TEST.
JUST THAT THIS IS A MORE VALID
AND ACCURATE ASSESSMENT. THAT'S
WHY WE DID YSTR TESTING,
WE WERE ABLE
TO DETERMINE A LOT MORE THAN IF
WE DID ANY OF THE PRIOR DNA
TESTING BECAUSE OF THE
INCREASED ACCURACY OVER TIME.
IF WE'RE NOT, IF WE'RE NOT
ALLOWED TO TEST WITH MORE
ACCURATE, MORE REASONABLE VALID
SCORES, THEN BASICALLY PEOPLE
ARE TRAPPED AND CAN'T TAKE
ADVANTAGE OF ANY ADVANCEMENT IN
THE SCIENCE.
WOULD BE LOGICAL OUTWORKING OF
THAT IF, IF WE CAN'T CHALLENGE
THESE PRIOR SCORES.
WITH THE NEW SCORES THAT ARE
MORE INDICATIVE OF THE ACTUAL
INTELLIGENCE.
BECAUSE THE INTELLIGENCE IS
ALWAYS THERE.
IT IS HOW WE MEASURE IT.
>> LET ME YOU ABOUT A CASE
WHERE TEST WERE DONE YEARS AGO
AND PERSON WAS FOUND TO BE
ABOVE THE LEVEL OF THE CUTOFF
LEVEL, AND SO THE CLAIM REALLY
WASN'T PURSUED, BECAUSE THE
TESTS WERE DONE AND, HAD NO
CLAIM.
THERE VERY WELL COULD BE CASES
LIKE THAT SITTING OUT THERE.
DOES THAT MEAN, WHAT YOU'RE
SAYING NOW, EVERYBODY WHO
DIDN'T, MAYBE NEVER EVEN HAD A
TEST BEFORE THAT WAS LITIGATED,
CAN NOW COME IN, TAKE, HAVE
THIS TEST ADMINISTERED EVEN
THOUGH THE TIME LIMITATIONS AND
THE RULE FOR BRINGING A,
RETARDATION CLAIM LONG AGO
PASSED.
BECAUSE THIS NEW TEST OR NEW
VERSION OF THE TEST IS THERE,
THAT ALL THOSE CASES CAN NOW,
ALL THOSE FOLKS CAN NOW COME
FORWARD, GET THOSE TESTS AND BE
OFF TO THE RACES ON THEIR
MENTAL RETARDATION CLAIM?
>> NOT ON THAT STANDING ALONE,
NO BECAUSE THEY WOULD STILL
HAVE TO THE SECOND AND THIRD
PRONGS.
>> I UNDERSTAND THAT.
>> IN MR.^JOHNSTON'S CASE HE
EASILY CLEARS THAT HURDLE HE
WAS FOR FOUR YEARS HE WAS IN
THE LEASEVILLE SCHOOL FOR
MENTALLY RETARDED IN LOUISIANA.
I DON'T KNOW THAT OTHER CASES
WOULD FALL WITHIN THIS.
MOST OF THE CASES INVOLVE A
FAILURE ON MULTIPLE PRONGS.
MR.^JOHNSTON'S CASE INVOLVED A
FAILURE ON THAT ONE PRONG.
AND WITHIN THIS COURT'S
OPINION, BACK IN 2005, --
>> WE DON'T REALLY, THE OTHER
PRONG, I WANT TO BE CLEAR AND I
COULD BE WRONG ABOUT THIS BUT
THE OTHER PRONGS HAVEN'T BEEN
LITIGATED.
>> THEY HAVE NOT BEEN
LITIGATED.
>> SO WE DON'T REALLY KNOW.
THERE HAS NOT BEEN FACTUAL
DETERMINATION ON THOSE OTHER
PRONGS.
WE KNOW WHAT YOU'VE ALLEGED BUT
THERE HAS NOT BEEN A FACTUAL
DETERMINATION ON THOSE, IS THAT
CORRECT?
>> THAT'S CORRECT.
BUT UNDER THE CASE LAW RIGHT
NOW AS WE'RE HERE, IT WAS SUM
MERRILLLY DENIED THOSE FACTS
ARE TAKEN TO BE TRUE AND I
PLED OUT HOW ALL OF THE
ADAPTIVE FUNCTIONING
INFORMATION, THAT I HAD
OBTAINED AND PROCESSED THROUGH
DOCTORS KROP AND EISENSTEIN OF
HIM BEING IN THE SCHOOL FOR THE
MENTALLY RETARTED AND, BEING IN
THE SPECIAL EDUCATION CLASSES
AND TALKING ABOUT HOW, HIS
TODAYTIVE FUNCTIONING WAS SO
LOW THAT HIS ADAPTIVE
FUNCTIONING WAS SO LOW HE
WASN'T ALLOWED TO COOK FOR
HIMSELF.
HE WASN'T ABLE TO DRIVE.
HE COULDN'T BALANCE A
CHECKBOOK.
THOSE KINDS OF THINGS WE LOOK
AT FOR ADAPTIVE FUNCTIONING.
BUT I THINK THIS IS A UNIQUE IN
THE SENSE IN 2005 AND TRIAL
COURT ORDERED AND THIS COURT
AFFIRMED ON THE BASIS THAT
SCORE ALONE, I THINK THAT IS A
VERY UNIQUE SITUATION WHERE WE,
WE HAVE EVIDENCE NOW, ON THIS
WAIS-IV THAT DIRECTLY
CONTRADICTS THAT AND IT IS THE
MOST ACCURATE RELIABLE
ASSESSMENT WITH THE MOST VALID
SCORE THAT WE HAVE HE FALLS IN
THAT ATKINS CLASS.
>> I'M CONCERNED ABOUT THE
ASPECT WHEN DID YOU FIRST COME
ON THE CASE?
WHEN WERE YOU FIRST APPOINTED
ON THE CASE?
>> I BELIEVE IT WAS THE LAST
WEEK OF APRIL, JUSTICE LABARGA.
>> APRIL 2009?
>> YES, SIR.
>> BEFORE YOU HAD THE CASE,
APRIL 2009 WHEN WAS THE LAST,
HOW LONG DID THE CASE LINGER
WITH THE MOTIONS TO WITHDRAW
FROM THE PREVIOUS COUNSEL?
>> MY RECOLLECTION IS EIGHT
MONTHS, JUSTICE LABARGA.
>> EIGHT MONTHS.
AND DR.^EISENSTEIN I BELIEVE
CONTACTED ACTUAL EVALUATION IN
JULY.
>> JULY 20th.
>> THE REPORT CAME OUT IN
DECEMBER?
>> RIGHT. YOU KNEW OF THE
SCORE SHORTLY THEREAFTER.
JULY 20th.
AS PLED IN THE MOTION I SENT
THE INVESTIGATOR OUT TO
INVESTIGATE THE ADAPTIVE
FUNCTIONING AND VERIFY THE
INFORMATION WE HAD REGARDING
THE OTHER TWO PRONGS.
AND THEN, PROVIDED THAT BACK TO
THE DOCTORS WHO ADMINISTERED
THE, THE ABAS REGARDING THE
ADAPTIVE FUNCTIONING AND MADE
THE CLINICAL ASSESSMENTS AND
RENDERED THEIR REPORTS ON, IN
DECEMBER AND JANUARY, DECEMBER
2009 AND JANUARY 2010.
>> THANK YOU.
>> COUNSEL, WHERE IS THE
FINALITY IN THIS?
MOST RECENT TEST SHOWS IQ OF
61.
ALL FOUR PREVIOUS TESTS SCORE
OVER 70?
AT 45 AT 84.
40 YEARS OLD, 76.
28.IT WAS 83.
THEN AT 14 IT WAS 80.
SO THERE WERE FOUR TESTS ABOVE
RETARDATION LEVEL BEFORE THIS
LAST TEST, RIGHT?
>> THERE WAS, THERE WAS FOUR
ABOVE AND THERE'S THREE BELOW.
AND THAT'S WHY THIS FIRST
PRONG --
>> WHERE DO WE STOP?
WE TAKE BEST THREE OUT OF FIVE?
WHAT ARE WE GOING TO DO?
>> WE TAKE THE MOST ACCURATE,
VALID ASSESSMENT IS THE
WAIS-IV.
PRIOR CONSIDERS SCORES ARE ONLY
INDICATIVE OF WHAT HIS
SITUATION WAS BEFORE THAT AGE
OF 18.
WHETHER THAT ONSET WAS THERE
BEFORE 18.
AND THOSE ARE WHAT THAT'S
RELATIVE TO.
WE HAVE NOW THE MOST ACCURATE
VALID ASSESSMENT HE IS AT 61.
WHEN YOU COUPLE THAT WITH THE
ONSET BEFORE THE AGE OF 18 AND
HIS ADAPTIVE FUNCTIONING IS
PROFOUNDLY LOW, DR.^EISENSTEIN
IN HIS REPORT THAT I ATTACHED
TO THE 3851 EVEN QUOTES FROM A
2002 PSYCHOLOGICAL SURVEY DONE
BY THE DEPARTMENT OF
CORRECTIONS THAT, TALKS ABOUT
HOW LOW HIS ADAPTIVE
FUNCTIONING IS AND SO MEETS
THAT ON MANY, MANY DIFFERENT
LEVELS.
AND I THINK THAT IS THE
UNIQUENESS OF MR.^JOHNSTON'S
CASE IT ESSENTIALLY TURNS ON
THIS IQ SCORE AND THAT'S WHY IT
IS SO IMPORTANT AS TO THIS, AS
TO GETTING THAT ACCURATE VALID
ASSESSMENT.
I SEE MY TIME IS OUT I'D LIKE
TO RESERVE SOME FOR REBUTTAL
UNLESS THE COURT HAS ANY
FURTHER QUESTIONS.
>> YOU'VE USED YOUR TIME BUT WE
WILL GIVE YOU A MINUTE FOR
REBUTTAL IF YOU HAVE ANYTHING
ELSE TO ADD.
>> OKAY. THANK YOU.
>> MAY IT PLEASE THE COURT I'M
KEN NUNNELLEY. I REPRESENT THE
STATE OF FLORIDA IN THIS
PROCEEDING.
IN ANSWER TO THE QUESTION WHERE WE
STOP, UNDER THIS THEORY WE NEVER
STOP.
SOONER OR LATER, THE WAIS-V WILL
COME OUT.
SOME DEFENDANT TESTED WITH
WAIS-IV, THEY WILL COME BACK
AND SAY. THE WAIS-V
I SHOW UP RETARDED ON THIS EVEN
THOUGH UNDER THE PRIOR ONE.
IT IS NEVER GO GOING TO END.
>> EXCUSE ME ONE MINUTE.
WE DON'T HAVE A FULLY LITIGATED
RECORD, DO WE, SO WE CAN MAKE
COMPARISONS?
FOR EXAMPLE, MR.^NUNNELLEY,
THROUGHOUT HISTORY.
SCIENCE CHANGES AND MOVES.
FOR EXAMPLE YOU MAY HAVE AN
X-RAY MACHINE WOULDN'T SHOW
CERTAIN CHANGES.
NOW WE HAVE AN MRI.
AND, TO KNOW HOW THAT'S
DIFFERENT WOULD WE NOT NEED A
HEARING SOMEBODY TO EXPLAIN THE
DIFFERENCES? IT MAY BE THERE
ARE NONE.
YOU MAY BE CORRECT BUT DO WE
HAVE A RECORD WHERE THIS IS
LITIGATED?
YOU HAVE PUT ON YOUR, THEY HAVE
PUT ON WHATEVER THEY HAVE?
WE DON'T HAVE THAT HERE, DO WE?
>> YES, SIR, WE DO.
>> WE DO.
>> WE HAVE IT IN 2005.
LET ME TELL YOU WHAT WE HAVE.
IN THE 2005 PROCEEDING, TWO
EXPERTS APPOINTED.
ONE EXPERT SELECTED BY THE
DEFENSE, ONE EXPERT
SELECTED BY THE STATE.
THE DEFENSE EXPERT WAS
DR.^BLANDINO.
I WOULD REFER THE COURT TO
DR.^BLANDINO'S TESTIMONY AT
RECORD PAGE, CITING TO MY
ATTACHMENT TO THE ANSWER, IT
ACTUALLY APPEARS TWICE IN THE
RECORD BECAUSE JUDGE PERRY ALSO
ATTACHED IT TO HIS ORDER.
RECORD 105, 107, 108, 126 WHERE
DR.^BLANDINO SAYS UNEQUIVOCALLY
THIS MAN IS NOT MENTALLY
RETARDED.
I BELIEVE IT IS AT 126 HE SAYS
THIS MAN'S IQ HAS TESTED THE
SAME OVER THE LAST 31 YEARS.
DR.^BLANDINO ALSO SAYS, AND I
BELIEVE DR.^PRITCHARD THE SAME
THING, I CAN'T GIVE YOU RECORD
CITED TO IT. I KNOW IT IS IN
THERE BECAUSE I CROSS-EXAMINED
DR.^BLANDINO.
HE SAYS ON CROSS, THAT
INTELLIGENCE IS RELATIVELY
STABLE OVER TIME.
HE EXPLAINS WHY THE SUB-70
SCORES ARE NOT VALID SCORES.
AND IN DOING SO HE RELIES ON
THE NOTES OF THE CLINICIAN WHO
ADMINISTERED THOSE TESTS AND
THOSE NOTES REFLECTED THAT
BECAUSE OF THE EMOTIONAL ISSUES
I BELIEVE WAS THE PHRASE, THESE
SCORES DO NOT ACCURATELY
REFLECT THIS MAN'S
CAPABILITIES.
THAT THEY ARE HIGHER THAN THIS
REFLECTS.
>> DO YOU HAVE ANY REASON TO
BELIEVE THAT THE WAIS-IV IS
LESS ACCURATE THAN THE
WAIS-III?
>> YOU'RE MAKING ME AN EXPERT
ON MENTAL RETARDATION, JUSTICE
PARIENTE.
THERE IS SOME, IN FACT, IN
INTERNET RESEARCH THERE IS SOME
QUESTION THAT THE WAIS-IV MAY
IN FACT NOT BE QUITE AS GOOD.
>> WELL, ISN'T THAT THOUGH,
AGAIN THE ANSWER TO STOP THE
FLOOD OF WHATEVER THERE IS,
WHEN THE ABA REPORT CAME OUT WE
GOT SOME MOTIONS ABOUT THAT'S
NEWLY DISCOVERED AND THIS COURT
MADE A DECISION BECAUSE
WITHOUT HAVING AN EVIDENTIARY
HEARING, THAT WASN'T NEWLY
DISCOVERED EVIDENCE.
WE'VE HAD SEVERAL OF THESE
WAVES. EACH TIME THIS COURT HAS
SAID IT IS NOT NEWLY DISCOVERED
EVIDENCE.
MY CONCERN HERE IS BECAUSE IN
THIS CASE WE NEVER LOOKED AT
THE OTHER TWO PRONGS.
AND BECAUSE WE DO HAVE THIS
EVIDENCE OF HIS EARLY CHILDHOOD
BEING IN SCHOOLS FOR THE
MENTALLY RETARDED.
AND BECAUSE ON DIRECT APPEAL,
WE ACTUALLY UPHELD THE JUDGE'S
DENIAL OF MR.^JOHNSTON'S
REQUEST FOR SELF-REPRESENTATION.
AND REPORTS OF PSYCHIATRIST
AND PAST ADMISSIONS TO MENTAL
HOSPITALS DID NOT MAKE HIM
CAPABLE OF REPRESENTING
HIMSELF.
AND THAT WAS A POINT ON APPEAL.
THROUGHOUT THIS RECORD THERE IS
INDICATION THAT THIS DEFENDANT,
DOES HAVE SIGNS OF MENTAL
RETARDATION.
AND YET, BECAUSE WE CERTAINLY,
DID RELY ON WHAT HAPPENED IN
2005.
BUT MY CONCERN IS, IS THAT WE
ARE GUESSING ABOUT WHAT THIS 61
MEANS.
IF IT IS A MORE ACCURATE AND
RELIABLE TEST THAT'S ONE THING.
IF IT IS ACTUALLY REFINEMENT OR
LESS RELIABLE, THEN THAT OUT TO
BE KNOWN.
BUT RIGHT NOW I FEEL LIKE WE,
THE COURT WOULD BE GUESSING
ABOUT IT AND WRITING SOMETHING
IN AN OPINION THAT WE HAVE NO
REAL BASIS TO, YOU KNOW, TO
ASSESS.
>> JUSTICE PARIENTE, LET ME
RESPOND TO THAT IN THIS WAY.
THE DEFENDANT HAS NOT ALLEGED
IN HIS MOTION, THAT THE
TESTING OVER THE LAST 31 YEARS,
EACH OF WHICH HAS PRODUCED A
SCORE AT LEAST A STANDARD
DEVIATION ABOVE THE CUTTOFF FOR
MENTAL RETARDATION, WERE IN ANY
WAY, SHAPE, OR FORM INACCURATE.
>> WHAT DOES IT MEAN WHEN HE
SAYS THAT THE WAIS-IV IS REALLY
A MORE ACCURATE ASSESSMENT OF
HIS MENTAL, INTELLECTUAL
CAPABILITIES?
I MEAN SEEMS TO ME, IF HE IS
SAYING THAT THIS TEST IS MORE
ACCURATE, THAN, THERE IS
SOMETHING THAT IS NOT QUITE AS
ACCURATE ABOUT THE TEST THAT
WAS DONE BEFORE.
>> HE HAS GOT TO EXPLAIN 23
POINTS AND HE HADN'T BOTHERED
TO TRY.
IT IS THAT SIMPLE.
THIS IS, THE PRIOR TESTING, AND
LET ME PUT IT THIS WAY.
LET ME BACK UP A LITTLE BIT.
THE FIRST MENTAL RETARDATION OR
INTELLIGENCE TEST, RATHER, THAT
WAS GIVEN TO HIM OVER THAT
31-YEAR PERIOD DR.^BLANDINO
WAS TALKING ABOUT BACK IN 2005,
WAS THE WAIS-R.
THE FIRST REVISION OF THE WAIS
TEST.
SUBSEQUENT TO THE
ADMINISTRATION STATION OF THE
WAIS-R, THIS MAN WAS GIVEN THE
WAIS-III.
GUESS WHAT?
THE SCORE WAS THE SAME.
THAT WOULD SUGGEST, AND I WOULD
SUGGEST, PUT THE NAIL IN THE
COFFIN OF THE NOTION THAT
INTELLIGENCE IS STABLE OVER
TIME.
AND LET ME POINT OUT A COUPLE
OTHER THINGS DR.^BLANDINO SAID
THAT ARE KIND OF SIGNIFICANT TO
WHAT IS GOING ON HERE.
>> I'M A LITTLE PUZZLED BY YOUR
TOTAL RELIANCE ON TESTIMONY IN
2005 TO ADDRESS SOMETHING THAT
WAS NOT EVEN IN USE UNTIL 2009.
I READ BLANDINO'S.
I'VE GONE THROUGH EVERY LINE OF
HIS TESTIMONY AND ALL OF HIS
EXPLANATIONS WITH REGARD TO
EMOTIONAL OVERLAYS AND ALL
THOSE THINGS.
HOW DOES THAT EXPLAIN WHAT IS
OR IS NOT INVOLVED WITH A NEW
TEST?
>> WHAT IT IS RES JUDICATA.
IT IS AN ISSUE THAT'S BEEN
LITIGATED AND DECIDED.
THIS IS SERIAL LITIGATION BASED
UPON --
>> NO ONE IS DEBATING THAT THIS
IS, THAT THIS IS NOT A PLEASANT
KIND OF THING TO CONTINUE
EXTENDING AND THESE THINGS
EXTEND AND THIS COMES UP AND
THAT COMES UP BUT IT DOESN'T
ADDRESS WHETHER THERE IS SOME,
SOME DEVELOPMENT IN SCIENCE
THAT DIFFERENCE FOR EXAMPLE
BETWEEN AN X-RAY MACHINE AND AN
MRI.
I DON'T KNOW THAT THIS TEST IS
OR IS NOT.
YOU MAY BE ABSOLUTELY RIGHT BUT
CERTAINLY BLANDINO'S TESTIMONY
DOES NOT ADDRESS THE 2009 TEST.
>> OF COURSE NOT. IT COULDN'T.
>> OF COURSE, BUT YOU'RE ARGUING
IT LIKE THAT IS THE
BE-ALL-END-ALL.
THAT'S WHAT I'M ASKING.
WHY SHOULDN'T WE HAVE EVIDENCE
WITH REGARD TO WHAT IT IS, WHAT
IT DOES?
AND YOU MAY BE CORRECT.
TO GET THE ANSWER, WE NEED
FACTS.
>> BECAUSE, JUSTICE LEWIS,
THERE HAS GOT TO BE SOME
FINALITY TO THIS CASE AND
FINALTY IS NOT ACHIEVED BY
WAITING UNTIL THE LAST MINUTE
AS WE HAVE HERE.
HIS CLAIM --
>> MR.^NUNNALLY, FINALITY IS
ALL WELL AND GOOD.
WHAT WE'RE FACING THIS COURT IS
LOOKING THAT A TEST THAT WAS
DONE SAYS THIS MAN AS HAS A 61
IQ. EXECUTION IS FINAL.
>> YES, MA'AM, IT IS.
>> THIS MAN HAS A VALID AND
LEGITIMATE 61 IQ.
HE FALLS SQUARELY IN THE CASES
THAT SAID, A PERSON WHO IS
MENTALLY RETARDED CAN NOT BE
EXECUTED.
THAT'S WHAT WE ARE FACING.
WHETHER OR NOT THIS MAN SHOULD
BE EXECUTED WITHOUT FULLY
EXPLORING WHETHER OR NOT THIS
61 IQ IS A VALID IQ FOR THIS
DEFENDANT.
AND WHAT IS WRONG US AT LEAST,
SENDING THIS CASE BACK FOR A
EVIDENTIARY HEARING TO EXPLORE
WHETHER OR NOT THAT IS A VALID
IQ?
>> THERE ARE PRACTICAL AND
PROCEDURAL ISSUES THAT COME
INTO PLAY.
FIRST OF ALL, BY COUNSEL'S OWN
ADMISSION, THIS TEST WAS KNOWN
TO HIM IN AUGUST OF 2009, AND
COULD HAVE BEEN RAISED.
AND I WOULD SUGGEST, SHOULD
HAVE BEEN RAISED IN THIS COURT
THEN.
>> MR.^NUNNELLEY, AND I APPRECIATE
THAT THE COURT DOES
EVERYTHING IT CAN
WHEN A DEATH WARRANT IS SIGNED TO
ADHERE TO THOSE TIME LIMITS.
THE ISSUE IS WHETHER IT SHOULD
HAVE BEEN BROUGHT, IF HE HAD
THE TEST SINCE THE SUMMER,
WHETHER WE SHOULD HAVE HAD THE
MOTION FILED EARLIER. BUT WHAT
YOU'RE REALLY SAYING, LET'S GO
TO THE, ON THE MERITS IS THAT,
WHENEVER IT WAS FILED IF IT WAS
FILED THE DAY AFTER THE APPEAL
ON THE LAST CASE WAS FINAL, IT
WOULD BE, IT WOULD BE BARRED
BECAUSE THERE HAD ALREADY BEEN
A DETERMINATION OF MENTAL
RETARDATION.
THAT'S YOUR, THAT'S YOUR MAIN
POINT, CORRECT?
THAT WE'VE HAD A DETERMINATION?
THERE SHOULD NOT BE ANOTHER
BITE AT THE MENTAL RETARDATION
ANGLE, CORRECT?
>> THIS COURT IN ITS RULES
ESTABLISHED TIMES WITHIN WHICH
THOSE CLAIMS SHOULD BE BROUGHT
AND THIS DEFENDANT DID NOT DO
IT SO YES, IT IS TIME-BARRED.
>> IF HE HAD THE TEST SINCE, HE
HAD THE TEST IN AUGUST.
HE HAD A YEAR, THAT'S WHEN HE
KNEW THERE WAS SERIOUS DOUBT
ABOUT THE PRIOR TEST, THEN,
UNDER ORDINARY CIRCUMSTANCE HE
WOULD HAVE A YEAR FROM THEN.
>> NO, MA'AM.
WELL, YES, BUT I'M TALKING
ABOUT A DIFFERENT TIME BAR.
I'M TALKING ABOUT RULE 3.203
THAT SETS OUT IN THIS COURT'S
RULE WHEN CLAIMS FOR MENTAL
RETARDATION, WE'RE TALKING
HERE, IS JUSTICE LEWIS, ASKED
TO YOU FOCUS ON A, AS TO NEW,
THE EXCEPTION IS, IF SOMETHING
IS NEWLY DISCOVERED EVIDENCE.
YOU'RE ASKING USE TO MAKE A
DETERMINATION THAT THE WAIS-IV
ISN'T NEWLY DISCOVERED EVIDENCE
BECAUSE IT'S ONLY A REFINEMENT
AND IT WOULDN'T CALL INTO
QUESTION THE VALIDITY OF THE PRIOR
TESTING.
MY CONCERN IS WHEN YOU HAVE A
TEST THAT KNOW SHOWS A FULL
STANDARD DEVIATION DIFFERENCE,
AND AS JUSTICE QUINCE SAYS,
CLEARLY PUTS SOMEBODY IN THE
RANGE OF THE FIRST PRONG OF
MENTAL RETARDATION, WITH NO
KNOWLEDGE ABOUT THE TWO OTHER
PRONGS HAVING BEEN LITIGATES,
WITH THE HISTORY OF THIS MAN,
SHOWING INDICATIONS OF MENTAL
RETARDATION FROM EARLY STAGES,
HOW DO WE NOT INSURE WHAT
YOU'RE SAYING IS CORRECT
THROUGH EVIDENTIARY HEARING AS
OPPOSED TO JUST TAKING WHAT
YOU'RE SAYING AT FACE VALUE?
THAT'S MY CONCERN?
>> MY RESPONSE TO THAT WOULD
BE THIS. JUSTICE PARIENTE.
WE FULLY LITIGATED THE ISSUE OF
THIS MAN'S INTELLIGENCE.
THE DEFENDANT HAS NEVER, EVER,
EVER, CHALLENGED THOSE RESULTS.
HE SAYS THIS TEST IS BETTER.
BUT HE DOES NOT EXPLAIN WHY,
AND HE DOES NOT ALLEGE, ANY
PROBLEM WITH WAIS-R OR
THE WAIS-III.
THAT IS A FAILURE OF PLEADING.
IF THERE IS A PROBLEM WITH
THOSE TESTS, IF HE CONTENDS
THOSE ARE INACCURATE THAT IS
PART OF, HE HAS TO PLEAD IN
ORDER TO COME IN WITH THIS.
>> THIS IS, THIS IS MORE VALID
AND RELIABLE TEST AND THAT TEST
SAYS 61, BY THE VERY NATURE
THAT SOMETHING IS MORE
RELIABLE, WOULD SAY THAT THE
PRIOR TEST IS LESS RELIABLE.
I MEAN I DON'T KNOW THAT WE, I
MEAN, AM I MISSING SOMETHING?
YOU SAID, YOU SAID YOU HAVE REASON
TO DOUBT THE WAIS-IV, AND ITS
ACCURACY?
>> I SAID THERE ARE SOME
QUESTIONS ABOUT IT.
I KNOW FROM INTERNET RESEARCH.
I HAVEN'T, I HAVEN'T LITIGATED
THE ISSUE AND --
>> 61 IS MORE ACCURATE
ASSESSMENT OF HIS IQ THEN THAT
WOULD RAISE A CLAIM THAT NEEDS
TO BE AT LEAST EXPLORED ON AN
EVIDENTIARY BASIS.
LET ME ASK YOU THIS.
NOW, I CAN UNDERSTAND MORE
ACCURATE BUT DOES MORE ACCURATE
FIT THE KIND OF DISCREPANCY WE
HAVE HERE BETWEEN 61 AND THESE,
SERIES OF OTHER TESTS THAT WERE
SIGNIFICANTLY HIGHER?
I MEAN, IF THE NOTION THAT
THIS, THAT THE 61 IS ACCURATE,
WOULD CALL INTO QUESTION THE
WHOLE WAIS THREE SEEMS TO ME
BECAUSE OF THE MAGNITUDE.
IF THIS 61 IS ACCURATE, IT
WOULD SEEM TO FOLLOW FROM THAT
THAT THE WAIS-III WAS NOT A
VALID TEST.
>> NO, SIR.
>> THAT HAS NOT BEEN ALLEGED.
THERE ARE TWO POSSIBILITIES
HERE, THERE MAY BE OTHERS BUT
TWO OCCUR TO ME.
ONE IS THAT THE WAIS-III IS
INVALID, WHICH HAS NOT BEEN
ALLEGED.
THE OTHER IS THERE IS SOME
MALINGERING GOING ON HERE OR
SOME OTHER CIRCUMSTANCE THAT
WOULD HAVE AFFECTED HIS
PERFORMANCE AT THE TIME THE
TEST WAS ADMINISTERED.
AM I MISSING SOMETHING?
>> YOU'RE ABSOLUTELY RIGHT.
AND, I WOULD ADD, JUSTICE
CANADY, THAT IN ADDITION TO
CALLING INTO QUESTION THE
WAIS-III, THIS ALSO CALLS
INTO QUESTION THE WAIS-R THAT
PRODUCED THE SAME SCORE.
IF YOU BUY THE DEFENDANT'S
ARGUMENT THAT THE NEWEST TEST
IS ALWAYS THE BEST ONE, THEN,
THAT WIPES OUT ALL THE PRIOR
TESTING.
IT DOESN'T WIPE OUT JUST THE
WAIS-III THAT SHOWED THE
DEFENDANT NOT MENTALLY
RETARDED.
IT WIPES OUT EVERY SINGLE PRIOR
TEST AND WE START OVER, AND
THAT IN TURN CALLS INTO
QUESTION THE ABILITY TO EVER
ESTABLISH THE PRE-18 ONSET IF
YOU'RE GOING TO WIPE OUT ALL
THE PRIOR TESTING WHICH THIS
ARGUMENT DOES.
>> IT REALLY IN MY MIND COMES
DOWN TO WHY NOT EXPLORE ALL OF
THE THINGS THAT YOU HAVE SAID
IN AN EVIDENTIARY HEARING
RATHER THAN US SPECULATING
ABOUT WHETHER OR NOT THE WAIS-IV
IS BETTER, WHETHER IT
CALLS INTO THE QUESTION THE III
AND THE R?
WHY NOT EXPLORE ALL OF THIS IN
AN EVIDENTIARY HEARING SO ALL
OF US REALLY HAVE SOMETHING TO
REALLY PIN OUR HATS ON?
SITTING HERE TODAY WE CAN NOT
REALLY SAY WHETHER IT IS OR IT
ISN'T BECAUSE IT'S NEVER
ACTUALLY BEEN EXPLORED IN AN
EVIDENTIARY HEARING.
MAYBE YOU CAN GET A
PSYCHOLOGIST OR PSYCHIATRIST
WHO WILL CONVINCE US THAT THIS
TEST IS NO BETTER THAN THE
TESTS WE HAD BEFORE AND MAYBE
HE WAS, AS JUSTICE CANADY SAYS,
MALINGERING WHEN THIS TEST WAS
ADMINISTERED.
BUT WE REALLY DON'T HAVE ANY OF
THAT BEFORE US.
THAT'S THE REAL PROBLEM, AND
THE REAL ISSUE I THINK THAT IS
BEFORE US.
>> IF THIS COURT BUYS THE
DEFENSE ARGUMENT THAT THE
NEWEST TEST IS ALWAYS THE BEST,
IF HE CAN FIND A PSYCHOLOGIST
SOMEWHERE TO GET A SCORE THAT
HELPS HIM, THAT OPENS EVERY
SINGLE ONE OF THESE CASES UP.
IT OPENS UP EVEN THE CASES THAT
HAVE NOT PREVIOUSLY ALLEGED
MENTAL RETARDATION.
>> WE'RE NOT IN THE BUSINESS OF
BUYING ANYTHING.
WE'RE TRYING TO BE IN THE
BUSINESS OF RULING BASED ON FACTS.
YOUR ARGUMENTS ARE NOT FACTS.
YOU'RE ENTITLED TO YOUR LEGAL
ARGUMENTS BUT YOU'RE NOT
ENTITLED TO ESTABLISH THE FACTS
WITHOUT A RECORD.
AND THAT'S ALL THAT THE
QUESTIONS ARE DIRECTED TO.
YOU'VE BECOME INDIGNANT BECAUSE
SOMEONE IS GOING TO ASK A
QUESTION ABOUT SCIENTIFIC
TESTING THAT HAS NOT BEEN,
ACCORDING TO ANY RECORDS
DELIVERED TO US, BEEN TESTED IN
AN ADVERSARIAL WAY IN A COURT
OF LAW.
YOU MAY BE ABSOLUTELY CORRECT
BUT DON'T WE OPERATE ON RECORDS
THAT ARE GIVEN TO US? AND
WE'VE GONE THROUGH THESE PRIOR
TRANSCRIPTS.
WE UNDERSTAND EVERYTHING THAT
YOU'VE SAID AND YOU MAY
ULTIMATELY, ABSOLUTELY BE RIGHT
BUT DON'T WE OPERATE, HAVEN'T
WE SAID WE OPERATE ON
TESTIMONY, ON EVIDENCE
PRESENTED TO A TRIAL JUDGE SO
THAT WE KNOW THAT IS CORRECT OR
NOT CORRECT?
WE'RE PRETTY FINAL WHAT WE'RE
TALKING ABOUT TODAY.
>> THIS ISSUE, THE ISSUE OF
THIS MAN'S MENTAL RETARDATION
HAS BEEN FULLY AND FAIRLY
LITIGATED IN THE 2005-2006
PROCEEDINGS.
THE DEFENDANT AT THAT TIME. WHO
WAS REPRESENTED BY ABLE
COUNSEL, CHOSE NOT AND DID NOT
GO INTO THE ADAPTIVE
FUNCTIONING COMPONENTS THAT ARE
ALLEGED WITHIN THE PLEADING. I
THOUGHT THAT, NOW I LOOKED
BACK AT THOSE, THE ISSUES ON
APPEAL.
>> I THOUGHT THERE WAS AN ARGUMENT
THAT THE, THAT THE LAWYER
WANTED TO BRING UP ADAPTIVE
FUNCTIONING BUT THE TRIAL JUDGE
AND IN THE ARGUMENT THEN WAS,
LISTEN, IF HE DOESN'T GET PAST
THE FIRST PRONG WE DON'T HAVE
TO LOOK AT OTHER TWO PRONGS.
SO OUR RECORD DOESN'T CONTAIN
ANY OF THESE SCHOOL RECORDS
FROM PRE-18 THAT SHOWS
MARGINAL FUNCTIONING IN SCHOOL.
SECOND, ABLE TO READ AT FIRST
GRADE OR SECOND GRADE LEVEL.
THAT IS NOT IN OUR RECORD.
DO YOU AGREE THAT IT IS NOT THERE?
IT WAS SOMETHING, THAT THE
DEFENSE LAWYER SAID, THAT HE
WANTED TO BRING UP BUT THE
JUDGE SAID, NO, WE'RE JUST GOING
TO DO THE FIRST PRONG?
AM I WRONG ABOUT THAT?
>> PARTIALLY.
>> I'M PARTIALLY WRONG ABOUT
THAT?
DOES THAT MEAN I'M AT LEAST
PARTIALLY RIGHT?
>> DEPENDS.
HALF FULL OR HALF EMPTY.
IT STILL HAS TO BE RIGHT.
NOTHING KEPT DEFENSE COUNSEL
FROM INTRODUCING THAT EVIDENCE.
THE TWO EXPERTS TESTIFIED
BECAUSE THIS MAN'S FUNCTIONING
WAS SO HIGH, THAT THE STANDARD
OF THE PROFESSION DID NOT
NECESSITATE INQUIRY INTO
ADAPTIVE FUNCTIONING.
HOWEVER THAT DOESN'T MEAN
COUNSEL COULD NOT HAVE PUT IT
IN HAD HE CHOSEN TO DO SO.
HE -- THAT EVIDENCE IS NOT
NEWLY DISCOVERED.
IT'S BEEN AROUND HOWEVER IT HAS
BEEN AROUND.
IT COULD HAVE BEEN USED THEN
BUT IT WAS NOT.
>> LET ME ASK YOU A QUESTION
ABOUT THE OTHER TWO PRONGS.
ONE HAS TO DO WITH THE ONSET
BEFORE AGE 18 BUT THE ADAPTIVE
FUNCTIONING PORTION OF IT, IS
THAT PRESENT ADAPTIVE
FUNCTIONING OR DO WE GO, DO WE
LOOK AT PRESENT AND PAST
ADAPTIVE FUNCTIONING?
>> AS THIS COURT FOUND IN A
CASE THAT, DR.^EISENSTEIN WAS
INVOLVED IN, PRESENT MEANS WHAT
IT SAYS.
PRESENT MEANS, RIGHT NOW EVEN
THOUGH DR.^EISENSTEIN WAS
TRYING TO SAY PRESENT REALLY
MEANT PAST AND THERE WAS A
COMMENT ABOUT ALICE THROUGH THE
LOOKING GLASS AND, THE RABBIT
OR MAD HATTER, I CAN'T REMEMBER
WHICH ONE.
REPRODUCED IN THE STATE'S
BRIEF.
PRESENT MEANS RIGHT NOW.
PRESENT DOESN'T MEAN AT SOME
POINT IN TIME IN THE PAST.
THE RULE OF STATUTE AND LAW.
>> OF COURSE THAT THEN, SO THE
ARGUMENT THEN IS, THE ADAPTIVE
FUNCTIONING, IF THAT'S TRUE,
KEEPS ON CHANGING THROUGH TIME
AND, HAPPENSTANCE OF WHEN THE
MOTION IS BROUGHT.
BECAUSE IF, YOU KNOW, AGAIN, I
THINK WE HAVE HAD THIS BECAUSE
ADAPTIVE FUNCTIONING IN A
PRISON SETTING WHERE YOU'VE
BEEN ON DEATH ROW FOR OF THIS
TIME, WHAT DOES THAT MEAN?
FIRST, WHETHER THIS MAN EVER
WAS ABLE TO LIVE ON HIS OWN,
WRITE A CHECK, BALANCE A
CHECKBOOK.
GO TO SCHOOL.
THOSE ARE CERTAINLY LOOKED AT
AS BEING, INDICATIVE OF
ADAPTIVE FUNCTION, WOULDN'T
YOU, WOULDN'T IT BEAR ON THAT
DETERMINATION IN SOME WAY?
WHOLE TOTALITY OF THE PERSON'S
LIFE?
>> LET ME ANSWER THAT THIS WAY.
I'M REALLY NOT TRYING TO EVADE
THE QUESTION.
THIS COURT HAS SAID PRESENT
ADAPTIVE FUNCTIONING HAS ITS
COMMON MEANING WHICH IS RIGHT
NOW TODAY.
I SUPPOSE THE INDIVIDUAL'S
PRIOR, PRIOR BEHAVIORS, OKAY,
WOULD BE ARGUABLY RELEVANT TO
THE PRE-18 ONSET COMPONENT.
AS FAR AS MEETING PRESENT
ADAPTIVE FUNCTIONING
COMPONENT, NO, THEY DO NOT.
ANY OF THE EVALUATIONS NO
MATTER WHAT TEST IT IS, NO
MATTER WHAT IT IS A SNAPSHOT OF
THAT DEFENDANT'S FUNCTIONING
THAT DAY.
HE MAY BE HAVING A GOOD DAY, HE
MAY BE HAVING A BAD DAY, BUT
THE BOTTOM LINE IS HE CAN'T
FAKE. THAT IS SOMETHING WE KNOW,
I'VE SAID THAT BEFORE IN THIS COURT
IN THESE CASES, AND, THE BOTTOM
LINE TO ALL OF THIS IS, THIS
MAN HAS TESTED CONSISTENTLY
ABOVE THE LEVEL OF MENTAL
RETARDATION.
THIS COURT HAS UPHELD THAT
FINDING THAT CAME FOLLOWING A
FULLEST TRIHEARING.
THERE IS NO ASSERTION
WHATSOEVER THAT ANY OF THAT
PRIOR TESTING WAS SO WRONG,
THAT IT WAS 23 POINTS HIGH,
THAT THERE HAS NEVER BEEN ANY
SUCH ASSERTION.
THIS ISSUE HAS BEEN DECIDED, IT
HAS BEEN FULLY LITIGATED AND IT
IS TIME FOR THIS SENTENCE BE
CARRIED OUT.
THANK YOU.
>> AND THANK YOU.
MR.^DOSS, WE GIVE YOU A COUPLE
MINUTES FOR REBUTTAL.
>> AS TO JUSTICE PARIENTE'S
QUESTION REGARDING WHETHER THIS
HAD BEEN, THE ADOPTIVE
FUNCTIONING ISSUE HAD BEEN
LITIGATED BEFORE, WHEN YOU LOOK
AT THE OPINION FROM THE PRIOR
CASE THE, MR.^MILLS ACTUALLY
MADE THE ARGUMENT, I'M LOOKING
AT 960 SO,2D, 761 AND
THIS COURT SAID JOHNSTON ARGUES
THAT THE TRIAL COURT ERRED
FINDING HIM NOT MENTALLY
RETARDED BECAUSE THE EXPERTS
APPOINTED BY TRIAL ONLY
CONSIDERED THE FIRST PRONG.
THE COURT WENT ON TO FIND NO
ERROR AND WITHIN THE TESTIMONY
OF BLANDINO, DOCTORS BLANDINO
AND PRITCHARD, THEY BOTH SAID
THEY NEVER EVEN CONSIDERED THE
SECOND OR THIRD PRONG BECAUSE
HE DIDN'T MEET THE FIRST PRONG.
WHAT IS BEFORE THE COURT IS
WHAT WE ALLEGED IN THE
SUCCESSIVE MOTION THAT AT THIS
POINT IS TO BE TAKEN AS TRUE.
>> NOW, WHY IS MR.^NUNNELLEY
NOT CORRECT?
THAT THIS HAS BEEN LITIGATED
FOR YEARS AND WE GO BACK
THROUGH AND WE SEE ALL OF THESE
SCORES, THEN ALL OF SUDDEN WE
GOT NEW TEST?
WHY IS THAT NOT LIKE OR SIMILAR
TO, RETESTING WE CAN ALWAYS
FIND A DIFFERENT EXPERT, WE CAN
ALWAYS FIND SOMETHING DIFFERENT
TO BRING UP? WHY IS HE NOT
CORRECT?
THAT THIS IS A STEP IN THESE
STANDARDIZED STEPS THAT HAVE
BEEN DEVELOPED.
BECAUSE THERE MAY BE SOME
CHANGES IN THE TEST DOES NOT
NECESSARILY TRANSLATE INTO WHAT
OCCURRED BEFORE IS WRONG, AND
THAT'S WHAT WE'RE DEALING WITH
HERE.
>> BECAUSE THE LITERATURE SAYS
THESE ARE THE MOST ACCURATE,
RELIABLE TESTS.
IT IS NOT AS IF, NOT AS IF THE
SITUATION WHERE EXPERTS ARE
LOOKING AT THE SAME DATA THAT
THESE OTHER EXPERTS WERE
LOOKING AT AND CAME UP WITH A
DIFFERENT OPINION.
THERE IS DIFFERENT DATA OUT
THERE, THAT BEING THE WAIS-IV
THAT WASN'T PRESENT IN 2005
THAT DOCTORS BLANDINO AND
PRITCHARD, IT WOULD BE
IMPOSSIBLE FOR THEM TO HAVE
BEEN CONSIDERED.
>> YOU WOULD AGREE IF
DR.^PRITCHARD LOOKS AT THIS AND
SAYS, AND GIVES A REASON FOR
THE DISPARITY, TRIAL COURT
COULD FIND THAT IN FACT, THIS
ISN'T NEWLY DISCOVERED
EVIDENCE?
IT'S, IT IS ACTUALLY AN
INACCURATE TEST?
ONE OF THEM HAS TO BE
INACCURATE, WOULD YOU AGREE
WITH THAT?
>> I THINK IT IS CLEAR FROM THE
LITERATURE AND FROM WHAT WE'VE
ALLEGED THAT THE WAIS-IV IS
MORE ACCURATE.
I DON'T KNOW WHAT DR.^PRITCHARD
WOULD COULD SAY BUT.
>> THAT'S CERTAINLY --
>> MIGHT CALL INTO QUESTION BUT
WHAT IS BEFORE THE COURT NOW WE
HAVE AS THE MOST ACCURATE --
>> YOU WOULD AGREE IF THE COURT
HEARS FROM WHOEVER THE STATE
PUTS ON AND
EXPLAINS THE DISCREPANCY IN THE
WAIS AS TO WHY THIS WAS AN
ABERRANT SCORE AND THAT
FINDING WOULD BE SOMETHING THAT
WE WOULD HAVE TO AFFIRM ON
APPEAL, IF THERE'S CREDIBILITY
DETERMINATIONS?
>> IF THE STATE WAS ABLE TO
PRODUCE COMPETENT, SUBSTANTIAL
EVIDENCE AND THE TRIAL COURT
RULED THAT I THINK THAT WOULD
FALL WITHIN THAT, WITHIN THAT,
WITHIN THE COURT'S CASE LAW,
THAT GOVERNS THAT, NOT KNOWING,
NOT KNOWING WHAT WAS SAID.
I CAN'T PROPERLY RESPOND.
I DON'T THINK ONE WAY OR
ANOTHER, OTHER THAN TO SAY THEY
WOULD HAVE TO BE COMPETENT AND
SUBSTANTIAL.
>> AND MR.^DOSS AND
MR.^NUNNELLEY, THANK YOU VERY
MUCH FOR YOUR PRESENTATIONS
HERE TODAY.
SUPREME COURT OF FLORIDA IS NOW
IN SESSION.
ALL WITH CAUSE TO PLEAD
DRAW NEAR,
GIVE ATTENTION, AND YOU SHALL
BE HEARD.
GOD SAVE THIS UNITED STATES.
THIS GREAT STATE OF FLORIDA.
AND THIS HONORABLE COURT.
LADIES AND GENTLEMEN, THE
FLORIDA SUPREME COURT.
PLEASE BE SEATED.
>> GOOD MORNING.
AND WELCOME TO THE FLORIDA
SUPREME COURT.
THE FIRST CASE ON OUR CALENDAR,
JOHNSON VERSUS STATE.
ARE THE PARTIES READY?
YOU MAY PROCEED, MR.^DOSS.
>> MAY IT PLEASE THE COURT.
TODD DOSS ON BEHALF OF DAVID
JOHNSTON.
WE'RE HERE THIS MORNING FROM
THE DENIAL OF
MR.^JOHNSTON'S POST-CONVICTION
MOTION ALLEGING NEWLY
DISCOVERED EVIDENCE WE HAD
FILED BASED UPON A NEWLY
OBTAINED SCORE OF, IQ SCORE OF
61 OBTAINED ON THE WAIS-IV.
>> LET ME ASK YOU A PRELIMINARY
QUESTION.
WHEN WAS THE WAIS-IV TEST FIRST
AVAILABLE?
>> IN LATE 2008.
I BELIEVE THE WEB SITE HAD SAID
AUGUST 2008.
THE DOCTORS TOLD ME NOVEMBER
2008.
AND I, IF THE COURT WILL RECALL
I CAME ON THE CASE JUST RIGHT
AT THE TIME THE WARRANT WAS
SIGNED, RIGHT THERE IN MAY.
I BELIEVE IT WAS LIKE THE LAST
WEEK OF APRIL 1st WEEK OF MAY
IN 2009.
THAT --
>> HE WAS WITHOUT AN ATTORNEY
FOR A PERIOD OF TIME?
>> EFFECTIVELY SO, JUSTICE
PARIENTE.
WE DISCUSSED THAT IN MAY.
THEY HAD FILED A MOTION TO
WITHDRAW. BASICALLY LANGUISHED
IN FRONT OF JUDGE WATTLES FOR A
LONG PERIOD OF TIME.
AFTER THE PRIOR MENTAL
RETARDATION HEARING AND
SUBSEQUENT AFFIRMNESS BY THIS
COURT MR.^JOHNSTON'S COUNSEL,
MR.^MILLS WITH DREW.
ANOTHER COUNSEL WAS APPOINTED
INDICATED HE DIDN'T SEE ANY
CLAIMS. IT WENT BACK TO THE
MIDDLE REGION.
THE MIDDLE REGION HAD IT WHEN I
WAS APPOINTED WHEN GOVERNOR
CRIST SIGNED THE WARRANT.
>> LET ME ASK YOU ABOUT THE
TIME LIMITATIONS ARE
APPLICABLE.
I UNDERSTAND IT IS A
COMPLICATED SITUATION.
NOW ISN'T IT, THE CASE, THAT
THERE'S A ONE-YEAR LIMITATION
WITH RESPECT TO NEWLY
DISCOVERED EVIDENCE CLAIMS THAT
RUNS FROM THE TIME THAT THE
NEWLY DISCOVERED EVIDENCE WAS
DISCOVERED OR SHOULD HAVE BEEN
COVERED THROUGH THE EXERCISE OF
DUE DILIGENCE?
>> I WOULD AGREE WITH THAT.
JUSTICE CANADY.
>> OKAY.
I UNDERSTAND WE'VE GOT THESE
FACTS YOU'RE TALKING ABOUT
WHETHER HE WAS SENTENCED AND WHO
WAS DOING WHAT.
BUT WOULDN'T, IN THIS CASE,
THE ONE YEAR CLOCK, ABSENT
SOME EXCEPTION, START RUNNING
AT THE TIME THIS TEST BECAME
AVAILABLE, GENERALLY AVAILABLE?
>> MY ARGUMENT, JUSTICE CANADY,
IS THAT THE CLOCK BEGAN TO RUN
WHENEVER I BECAME AWARE
OF IT.
AS HE WAS EFFECTIVELY WITHOUT
COUNSEL AND LANGUISHING.
WHICH WOULD PLACE IT IN --
>> IS THERE AUTHORITY TO
SUPPORT THAT?
BECAUSE, YOU KNOW, OR, IT IS
ORDINARILY THE CASE THAT THE
CLOCK BEGINS TO RUN WHEN YOU
SHOULD HAVE KNOWN ABOUT IT
THROUGH THE EXERCISE OF DUE
DILIGENCE.
OBVIOUSLY, THIS TEST IS A TEST
THAT IS NOT SOMETHING THAT IS
SECRET.
IT'S A WIDELY KNOWN TEST, AND
WHEN THERE'S A NEW VERSION THAT
COMES OUT, THAT IS GOING TO BE
SOMETHING THAT WOULD BE WIDELY
PUBLICLY KNOWN.
THE, SO THE NOTION THAT COUNSEL
COULD NOT DETERMINE IT?
WHETHER, YOU KNOW, WHETHER
THERE IS A GAP IN COUNSEL HOW
THAT WOULD AFFECT THIS, THAT'S
A DIFFERENT QUESTION.
BUT ABSENT SOME CIRCUMSTANCE
SUCH AS THAT, WOULDN'T YOU
AGREE THAT THE CLOCK WOULD
START RUNNING, WHEN THE TEST
CAME OUT?
>> I DON'T BELIEVE THAT IS THE
WAY IT READS.
I BELIEVE IT READS THROUGH THE
USE OF DILIGENCE.
AND I CAN ONLY SPEAK TO THE
DILIGENCE I USED WHENEVER I
RECEIVED THE CASE AND HAD HIM
EVALUATED WITHIN A WEEK.
THAT IS WHENEVER I LEARNED IT.
I CAN TELL THAT --
>> IF WE FOLLOW THAT, WHEN WE
ESSENTIALLY, IF WE FOLLOW WHAT
YOU'RE SUGGESTING, WHEN WE
ESSENTIALLY HAVE A SITUATION
WHERE, AT LEAST POTENTIALLY,
THESE CLAIMS, BASED ON, THIS
NEW TEST COULD JUST KIND OF BE
SITTING OUT THERE, AND BECAUSE
COUNSEL DOESN'T HAPPEN TO FIND
OUT ABOUT IT, THEY COULD BE
RAISED, WHEN COUNSEL GETS
AROUND IT, TO CHECKING OUT
ALTERNATIVES, VARIOUS COURSES
OF ACTION ON THE EVE OF
EXECUTION.
WE WOULD FACE WHAT WE'RE FACING
RIGHT NOW, I DON'T KNOW HOW
MANY CASES, BUT PROBABLY BE
SOME OTHER CASES WHERE THERE
ARE CLAIMS THAT COULD BE MADE
ALONG THESE LINES.
AND ISN'T THAT A PROBLEM?
THAT CAN JUST SIT THERE, UNTIL
COUNSEL GETS AROUND TO IT, AND
RAISED IT AT THE 11th HOUR?
>> I BELIEVE THAT IS WHY,
JUSTICE CANADY .THERE IS A
DILIGENCE PRONG BECAUSE IT IS
INDIVIDUALIZED DETERMINATION
BASED ON THE CIRCUMSTANCES OF
THE CASE.
>> WHAT I WANT TO ASK YOU ON
THAT, YOU RAISED A VERY SERIOUS
CLAIM, I THINK IT IS A SERIOUS
CLAIM, IF MR.^JOHNSTON IS IN
FACT MENTALLY RETARDED AS
CONTEMPLATED BY ATKINS AND THE
LEGISLATURE --
YOU CAME ON THE CASE.
YOU SAID IN IT WAS MAY OF 2009?
>> I BELIEVE THE ORDER OF
APPOINTMENT WAS --
>> THE FIRST ISSUE YOU RAISED
TO THIS COURT, WHAT YOU
OBTAINED IS A STAY OF EXECUTION
WAS DNA EVIDENCE WOULD
EXONERATE THIS DEFENDANT.
NOW, AS A OFFICER OF THIS
COURT, AND I'M NO EXPERT ON
MENTAL RETARDATION, WOULDN'T
HIS STATUS, HIS ABILITY TO
COMMUNICATE, HIS OTHER
DEFICITS, THAT WOULD BE
INDICATIVE OF SOMEBODY WHO IS
MENTALLY RETARDED BE SOMETHING
THAT YOU WOULD HAVE BEEN ABLE
TO DISCERN UPON HIS INITIAL,
YOUR INITIAL MEETING WITH HIM?
>> NOT EXACTLY, JUSTICE
PARIENTE. I HAD RAISED A CLAIM THAT
ATKINS SHOULD BE EXTENDED TO
THOSE MENTALLY ILL OR
BRAIN-DAMAGED BECAUSE I THOUGHT
MR.^JOHNSTON WAS IN THE SAME
CLASS AS THOSE MENTALLY
RETARDED.
BECAUSE OF LATENESS OF COMING
IN I WAS AWARE OF THE 2005
DETERMINATION AND THE WAIS-III
SCORE IN 2004.
I DIDN'T HAVE ANY SCORE AT THAT
POINT IN TIME AS I LAID OUT IN
THE SPECIFIC MOTION.
I SPOKE TO DR.^KROP AND
DR.^EISENSTEIN.
DR.^KROP SAID THERE WAS A
WAIS-IV OUT THERE ALTHOUGH HIS
SCHEDULE DIDN'T ALLOW HIM TO
ADMINISTER THE WAIS-IV.
THAT'S WHY --
>> THE REAL QUESTION, SOMEONE
WITH AN IQ, ALLEGEDLY 61,
WOULDN'T THERE BE SOME PHYSICAL
MANIFESTATIONS OF THAT THAT
WOULD BE APPARENT TO SOMEONE
TALKING WITH WHIM?
IF YOU HAVE TO MEET WITH HIM
HAD, WOULDN'T THAT KIND OF IQ
SORT OF BE APPARENT IN
CONVERSATIONS?
>> IT WAS APPARENT AND WHY I
HAVE THE ATKINS CLASS EXTENDED.
FRANKLY I WAS BAFFLED BY THE
84.
THAT'S WHY I SUBSEQUENTLY HAD
HIM TESTED WITH THE WAIS-IV
KNOWING IT WAS MORE ACCURATE
ASSESSMENT BASED ON
RECOMMENDATIONS OF DOCTORS KROP
AND EISENSTEIN?
>> YOU COULDN'T AT THAT POINT
FIND ANYONE ELSE TO CONDUCT
THIS TEST OTHER THAN DR.^KROP?
I WOULD ASSUME THAT THE WAIS-IV
IS AVAILABLE TO WHOEVER
ADMINISTERS, PSYCHOLOGISTS OR
PSYCHIATRISTS AND THAT, NO ONE
OTHER THAN DR.^KROP, YOU
COULDN'T GET ANYONE OTHER THAN
DR.^KROP TO HAVE DONE THIS?
>> I ATTEMPTED TO HAVE
DR.^EISENSTEIN DO IT.
HE DIDN'T HAVE IT AT THAT
POINT.
HE ORDERED IT.
BY THE TIME HE GOT THE TEST WE
WERE BEFORE THIS COURT BECAUSE
AS THE COURT'S WELL AWARE, IT
MOVES SO QUICKLY ONCE A WARRANT
IS SIGNED AND I WAS, AS WELL, I
WAS ACCLIMATING MYSELF WITH THE
CASE HAVING BEEN INUNDATED WITH
MANY BOXES OF MATERIALS AND NOT
HAVING HAD, NOT IF MY CASE FROM
THE BEGINNING WHERE I HAVE A
BREADTH OF KNOWLEDGE ABOUT THE
CASE.
>> THERE IS NO AUTHORITY THAT
WOULD SUGGEST THAT THAT
ONE-YEAR TIME WOULD BE TOLLED
BECAUSE THE APPEAL OF ANOTHER
SUCCESSIVE POST-CONVICTION
MOTION IS PENDING?
>> YOUR HONOR, I DON'T BELIEVE,
I DON'T BELIEVE THAT THE
TRIAL COURT HAD JURISDICTION TO
HEAR THE 3851.
I FILED IT WAS STILL, WHILE IT
WAS STILL OUT.
IT WAS READY TO BE HEARD
IMMEDIATELY COMING OFF A --
>> BUT, WELL, IN FACT YOU FILED
THIS WHILE THE CASE WAS STILL
UP HERE, THE OTHER CASE.
I DON'T UNDERSTAND HOW, I MEAN,
I DON'T UNDERSTAND THAT ABOUT
THE TRIAL COURT NOT HAVING
JURISDICTION.
THE FILING OF THE CLAIM,
WHETHER IT IS GOING TO BE HEARD
IMMEDIATELY, THAT'S MAYBE A
DIFFERENT ISSUE.
BUT IS THERE, IS THERE ANY
AUTHORITY THAT WOULD SUGGEST
THAT STATUE IS TOLLED BY
THE PENDENCY OF
APPEAL OF A ONE YEAR
POST-CONVICTION MOTION?
>> I CAN'T SUGGEST ANOTHER CASE
BUT TO SUGGEST THE TRIAL COURT
DOESN'T HAVE JURISDICTION TO
HEAR IT.
>> WE HAVE CASES PROCEDURE TO
BE FOLLOWED.
IT IS TO BE FILED AND THEN
STAYED.
I LIKE TO ASK A QUESTION,
ASSUMING WE GET PAST THE FIRST
PRONG OF TIMELINESS, ABOUT
WHETHER YOU SET FORTH A LEGAL
OR FACTUALLY SUFFICIENT CLAIM.
IT IS ONE THING TO SAY THAT
THIS WAIS-IV IS A REFINEMENT,
AND, THAT IT'S, QUOTE, A BETTER
TEST.
BUT WOULD YOU AGREE THAT IN
ORDER FOR IT TO QUALIFY AS
NEWLY DISCOVERED EVIDENCE,
THAT COULD LEAD TO REASONABLE
PROBABILITY OF A LESSER
SENTENCE OR IN THIS CASE,
IMMUNITY FROM THE EXECUTION,
THAT YOU WOULD HAVE TO SHOW
THAT THE PRIOR TEST, WAS, DID
NOT ACCURATELY MEASURE HIS
INTELLECTUAL FUNCTIONING?
>> I DON'T BELIEVE THAT IT, I
CAN NOT AND SAY THAT IT WAS
INACCURATE.
>> SO THAT, HERE'S THE PROBLEM.
IF THE WAIS-III WAS NOT INACCURATE
AND IT WAS SCORE THAT WAS
OBTAINED OVER A PERIOD OF NOT
JUST DURING THE LITIGATION BUT
ALSO WHEN HE WAS AGE, 13 OR 14,
THEN HOW ARE, YOU KNOW, HOW
ARE YOU GOING TO OVERCOME THE
BARRIER THAT SOME ACTUALLY
NEWLY DISCOVERED EVIDENCE SUCH
THAT IT IS ENTITLED TO, YOU
KNOW, FOR YOU TO HAVE A WHOLE
NEW HEARING ON, YOU KNOW, BOTH,
ALL THREE PRONGS OF THE ATKINS,
OR THIS COURT'S THREE-PRONGED
TEST FOR MENTAL RETARDATION?
I'M TRYING TO SEE WHERE WE
WOULD GO FOR THIS
IF THERE ISN'T ANYTHING THAT
CALLS INTO QUESTION THE
ACCURACY AND VALIDITY OF THE
PRIOR TEST?
>> EACH VERSION OF THE TEST,
BECOMES, I BELIEVE, BECOMES
MORE AND MORE ACCURATE.
I WOULD LIKEN IT TO IF WE WERE
TO COMPARE IT TO THE ADVANCE
FROM SUNDIAL TO A CLOCK, TO A
DIGITAL CLOCK.
AS WE REFINE AND GET MORE
ACCURATE, WASN'T ANY OF THE
PRIOR ONES WERE NECESSARILY
INACCURATE.
WE HAVE A BETTER IDEA WHERE
WE'RE AT.
>> IF THAT IS THE ANALOGY,
THERE SHOULD BE NO REASON WAIS-III,
THERE SHOULD BE NO, THAT
HAS TO CALL IN QUESTION THE
PRIOR TESTS DID NOT ACCURATELY
EVALUATE HIS INTELLECTUAL
FUNCTIONING.
IT'S NOT JUST, WELL, IT WAS
2:00 TWO YEARS AGO ON THAT
CLOCK BUT NOW IT'S GOING TO BE
2:00 AND 10 SECONDS.
YOU'RE TALKING ABOUT ALMOST A
STANDARD, WELL, AT
LEAST A STANDARD DEVIATION,
FROM 84 TO 61?
THAT IS A SIGNIFICANT
DIFFERENCE.
>> AND IT IS NOT A REFINEMENT.
THAT IS WHAT THE CIRCUIT COURT
HAD USED.
IT WAS A NEW CONFIGURATION IS
WHAT WE HAD PLED.
IT WAS A NEW CONFIGURATION,
THAT ADDED,
I BELIEVE THE COURT USED FROM
DR.^EISENSTEIN, IT WAS A NEW
CONFIGURATION OF FOUR INDEX
SCORES RATHER THAN A VERBAL AND
PERFORMANCE.
>> THE PROBLEM IS WE DON'T RIGHT
NOW, AND THIS IS WHERE I AM
CONCERNED WITH, I HAVE THE
TRIAL COURT'S ORDER.
THE TRIAL COURT FOUND THERE WAS
NO EVIDENCE PRESENTED THAT
CALLS INTO QUESTION THE
VALIDITY OF THE WAIS-III BUT
THERE WAS NO EVIDENTIARY
HEARING, CORRECT?
>> THAT'S CORRECT.
>> JUDGE PERRY INDICATED HE DID
INDEPENDENT RESEARCH.
A LOT OF EVIDENCE IS
REFINEMENT.
FIRST PAGE OF HIS ORDER HE SAID
HE DID INDEPENDENT RESEARCH.
THAT IS NOT THE STANDARD
WHENEVER WE'RE PROCEEDING UNDER
NEWLY DISCOVERED EVIDENCE CLAIM
WHETHER THE MOTIONS FILES AND
RECORDS CONCLUSIVELY REFUTE THE
CLAIM.
WHAT IS IN THERE DOESN'T
CONCLUSIVELY REFUTE THE.
A LOT OF THIS IS FLESHED --.
>> YOU'RE DISPUTING THE CLAIM
WAIS-IV IS NOT A SUBSTANTIAL --
IN MANNER THAT WOULD
INVALIDATE THE PREVIOUS
WAIS-III TEST RESULTS ARE YOU
CONCEDING THAT FINDING NEEDS
TO BE FLESHED
OUT RATHER THAN SUMMARILY
DENIED.
>> ABSOLUTELY.
I BELIEVE WHEN WE GET INTO THE
WAY THAT IT IS NEWLY CONFIGURED
THAT WOULD, THAT THAT WOULD
FLESH THAT OUT AND THAT WOULD
SHOW THAT THAT IS AN INACCURATE
ASSESSMENT AND THAT IT IS NOT A
REFINEMENT.
IT IS A NEW CONFIGURATION.
>> DID YOU PLEAD THAT?
>> YES. I HAD PUT THE QUOTES FROM
DR.^EISENSTEIN AND DR.^KROP. IT
WAS A NEW CONFIGURATION.
BASED ON DIFFERENT FACTORS THAN
BEFORE.
>> I UNDERSTAND.
DID YOU PLEAD THAT THE PRIOR
TEST WAS NOT A VALID TEST OR
SOMETHING LIKE THAT?
>> WHAT I PLED WAS THAT THIS
WAS MORE ACCURATE, MORE
RELIABLE AND MORE VALID.
I CAN'T, JUSTICE CANADY, I CAN'T
SAY IT WAS INACCURATE TEST.
JUST THAT THIS IS A MORE VALID
AND ACCURATE ASSESSMENT. THAT'S
WHY WE DID YSTR TESTING,
WE WERE ABLE
TO DETERMINE A LOT MORE THAN IF
WE DID ANY OF THE PRIOR DNA
TESTING BECAUSE OF THE
INCREASED ACCURACY OVER TIME.
IF WE'RE NOT, IF WE'RE NOT
ALLOWED TO TEST WITH MORE
ACCURATE, MORE REASONABLE VALID
SCORES, THEN BASICALLY PEOPLE
ARE TRAPPED AND CAN'T TAKE
ADVANTAGE OF ANY ADVANCEMENT IN
THE SCIENCE.
WOULD BE LOGICAL OUTWORKING OF
THAT IF, IF WE CAN'T CHALLENGE
THESE PRIOR SCORES.
WITH THE NEW SCORES THAT ARE
MORE INDICATIVE OF THE ACTUAL
INTELLIGENCE.
BECAUSE THE INTELLIGENCE IS
ALWAYS THERE.
IT IS HOW WE MEASURE IT.
>> LET ME YOU ABOUT A CASE
WHERE TEST WERE DONE YEARS AGO
AND PERSON WAS FOUND TO BE
ABOVE THE LEVEL OF THE CUTOFF
LEVEL, AND SO THE CLAIM REALLY
WASN'T PURSUED, BECAUSE THE
TESTS WERE DONE AND, HAD NO
CLAIM.
THERE VERY WELL COULD BE CASES
LIKE THAT SITTING OUT THERE.
DOES THAT MEAN, WHAT YOU'RE
SAYING NOW, EVERYBODY WHO
DIDN'T, MAYBE NEVER EVEN HAD A
TEST BEFORE THAT WAS LITIGATED,
CAN NOW COME IN, TAKE, HAVE
THIS TEST ADMINISTERED EVEN
THOUGH THE TIME LIMITATIONS AND
THE RULE FOR BRINGING A,
RETARDATION CLAIM LONG AGO
PASSED.
BECAUSE THIS NEW TEST OR NEW
VERSION OF THE TEST IS THERE,
THAT ALL THOSE CASES CAN NOW,
ALL THOSE FOLKS CAN NOW COME
FORWARD, GET THOSE TESTS AND BE
OFF TO THE RACES ON THEIR
MENTAL RETARDATION CLAIM?
>> NOT ON THAT STANDING ALONE,
NO BECAUSE THEY WOULD STILL
HAVE TO THE SECOND AND THIRD
PRONGS.
>> I UNDERSTAND THAT.
>> IN MR.^JOHNSTON'S CASE HE
EASILY CLEARS THAT HURDLE HE
WAS FOR FOUR YEARS HE WAS IN
THE LEASEVILLE SCHOOL FOR
MENTALLY RETARDED IN LOUISIANA.
I DON'T KNOW THAT OTHER CASES
WOULD FALL WITHIN THIS.
MOST OF THE CASES INVOLVE A
FAILURE ON MULTIPLE PRONGS.
MR.^JOHNSTON'S CASE INVOLVED A
FAILURE ON THAT ONE PRONG.
AND WITHIN THIS COURT'S
OPINION, BACK IN 2005, --
>> WE DON'T REALLY, THE OTHER
PRONG, I WANT TO BE CLEAR AND I
COULD BE WRONG ABOUT THIS BUT
THE OTHER PRONGS HAVEN'T BEEN
LITIGATED.
>> THEY HAVE NOT BEEN
LITIGATED.
>> SO WE DON'T REALLY KNOW.
THERE HAS NOT BEEN FACTUAL
DETERMINATION ON THOSE OTHER
PRONGS.
WE KNOW WHAT YOU'VE ALLEGED BUT
THERE HAS NOT BEEN A FACTUAL
DETERMINATION ON THOSE, IS THAT
CORRECT?
>> THAT'S CORRECT.
BUT UNDER THE CASE LAW RIGHT
NOW AS WE'RE HERE, IT WAS SUM
MERRILLLY DENIED THOSE FACTS
ARE TAKEN TO BE TRUE AND I
PLED OUT HOW ALL OF THE
ADAPTIVE FUNCTIONING
INFORMATION, THAT I HAD
OBTAINED AND PROCESSED THROUGH
DOCTORS KROP AND EISENSTEIN OF
HIM BEING IN THE SCHOOL FOR THE
MENTALLY RETARTED AND, BEING IN
THE SPECIAL EDUCATION CLASSES
AND TALKING ABOUT HOW, HIS
TODAYTIVE FUNCTIONING WAS SO
LOW THAT HIS ADAPTIVE
FUNCTIONING WAS SO LOW HE
WASN'T ALLOWED TO COOK FOR
HIMSELF.
HE WASN'T ABLE TO DRIVE.
HE COULDN'T BALANCE A
CHECKBOOK.
THOSE KINDS OF THINGS WE LOOK
AT FOR ADAPTIVE FUNCTIONING.
BUT I THINK THIS IS A UNIQUE IN
THE SENSE IN 2005 AND TRIAL
COURT ORDERED AND THIS COURT
AFFIRMED ON THE BASIS THAT
SCORE ALONE, I THINK THAT IS A
VERY UNIQUE SITUATION WHERE WE,
WE HAVE EVIDENCE NOW, ON THIS
WAIS-IV THAT DIRECTLY
CONTRADICTS THAT AND IT IS THE
MOST ACCURATE RELIABLE
ASSESSMENT WITH THE MOST VALID
SCORE THAT WE HAVE HE FALLS IN
THAT ATKINS CLASS.
>> I'M CONCERNED ABOUT THE
ASPECT WHEN DID YOU FIRST COME
ON THE CASE?
WHEN WERE YOU FIRST APPOINTED
ON THE CASE?
>> I BELIEVE IT WAS THE LAST
WEEK OF APRIL, JUSTICE LABARGA.
>> APRIL 2009?
>> YES, SIR.
>> BEFORE YOU HAD THE CASE,
APRIL 2009 WHEN WAS THE LAST,
HOW LONG DID THE CASE LINGER
WITH THE MOTIONS TO WITHDRAW
FROM THE PREVIOUS COUNSEL?
>> MY RECOLLECTION IS EIGHT
MONTHS, JUSTICE LABARGA.
>> EIGHT MONTHS.
AND DR.^EISENSTEIN I BELIEVE
CONTACTED ACTUAL EVALUATION IN
JULY.
>> JULY 20th.
>> THE REPORT CAME OUT IN
DECEMBER?
>> RIGHT. YOU KNEW OF THE
SCORE SHORTLY THEREAFTER.
JULY 20th.
AS PLED IN THE MOTION I SENT
THE INVESTIGATOR OUT TO
INVESTIGATE THE ADAPTIVE
FUNCTIONING AND VERIFY THE
INFORMATION WE HAD REGARDING
THE OTHER TWO PRONGS.
AND THEN, PROVIDED THAT BACK TO
THE DOCTORS WHO ADMINISTERED
THE, THE ABAS REGARDING THE
ADAPTIVE FUNCTIONING AND MADE
THE CLINICAL ASSESSMENTS AND
RENDERED THEIR REPORTS ON, IN
DECEMBER AND JANUARY, DECEMBER
2009 AND JANUARY 2010.
>> THANK YOU.
>> COUNSEL, WHERE IS THE
FINALITY IN THIS?
MOST RECENT TEST SHOWS IQ OF
61.
ALL FOUR PREVIOUS TESTS SCORE
OVER 70?
AT 45 AT 84.
40 YEARS OLD, 76.
28.IT WAS 83.
THEN AT 14 IT WAS 80.
SO THERE WERE FOUR TESTS ABOVE
RETARDATION LEVEL BEFORE THIS
LAST TEST, RIGHT?
>> THERE WAS, THERE WAS FOUR
ABOVE AND THERE'S THREE BELOW.
AND THAT'S WHY THIS FIRST
PRONG --
>> WHERE DO WE STOP?
WE TAKE BEST THREE OUT OF FIVE?
WHAT ARE WE GOING TO DO?
>> WE TAKE THE MOST ACCURATE,
VALID ASSESSMENT IS THE
WAIS-IV.
PRIOR CONSIDERS SCORES ARE ONLY
INDICATIVE OF WHAT HIS
SITUATION WAS BEFORE THAT AGE
OF 18.
WHETHER THAT ONSET WAS THERE
BEFORE 18.
AND THOSE ARE WHAT THAT'S
RELATIVE TO.
WE HAVE NOW THE MOST ACCURATE
VALID ASSESSMENT HE IS AT 61.
WHEN YOU COUPLE THAT WITH THE
ONSET BEFORE THE AGE OF 18 AND
HIS ADAPTIVE FUNCTIONING IS
PROFOUNDLY LOW, DR.^EISENSTEIN
IN HIS REPORT THAT I ATTACHED
TO THE 3851 EVEN QUOTES FROM A
2002 PSYCHOLOGICAL SURVEY DONE
BY THE DEPARTMENT OF
CORRECTIONS THAT, TALKS ABOUT
HOW LOW HIS ADAPTIVE
FUNCTIONING IS AND SO MEETS
THAT ON MANY, MANY DIFFERENT
LEVELS.
AND I THINK THAT IS THE
UNIQUENESS OF MR.^JOHNSTON'S
CASE IT ESSENTIALLY TURNS ON
THIS IQ SCORE AND THAT'S WHY IT
IS SO IMPORTANT AS TO THIS, AS
TO GETTING THAT ACCURATE VALID
ASSESSMENT.
I SEE MY TIME IS OUT I'D LIKE
TO RESERVE SOME FOR REBUTTAL
UNLESS THE COURT HAS ANY
FURTHER QUESTIONS.
>> YOU'VE USED YOUR TIME BUT WE
WILL GIVE YOU A MINUTE FOR
REBUTTAL IF YOU HAVE ANYTHING
ELSE TO ADD.
>> OKAY. THANK YOU.
>> MAY IT PLEASE THE COURT I'M
KEN NUNNELLEY. I REPRESENT THE
STATE OF FLORIDA IN THIS
PROCEEDING.
IN ANSWER TO THE QUESTION WHERE WE
STOP, UNDER THIS THEORY WE NEVER
STOP.
SOONER OR LATER, THE WAIS-V WILL
COME OUT.
SOME DEFENDANT TESTED WITH
WAIS-IV, THEY WILL COME BACK
AND SAY. THE WAIS-V
I SHOW UP RETARDED ON THIS EVEN
THOUGH UNDER THE PRIOR ONE.
IT IS NEVER GO GOING TO END.
>> EXCUSE ME ONE MINUTE.
WE DON'T HAVE A FULLY LITIGATED
RECORD, DO WE, SO WE CAN MAKE
COMPARISONS?
FOR EXAMPLE, MR.^NUNNELLEY,
THROUGHOUT HISTORY.
SCIENCE CHANGES AND MOVES.
FOR EXAMPLE YOU MAY HAVE AN
X-RAY MACHINE WOULDN'T SHOW
CERTAIN CHANGES.
NOW WE HAVE AN MRI.
AND, TO KNOW HOW THAT'S
DIFFERENT WOULD WE NOT NEED A
HEARING SOMEBODY TO EXPLAIN THE
DIFFERENCES? IT MAY BE THERE
ARE NONE.
YOU MAY BE CORRECT BUT DO WE
HAVE A RECORD WHERE THIS IS
LITIGATED?
YOU HAVE PUT ON YOUR, THEY HAVE
PUT ON WHATEVER THEY HAVE?
WE DON'T HAVE THAT HERE, DO WE?
>> YES, SIR, WE DO.
>> WE DO.
>> WE HAVE IT IN 2005.
LET ME TELL YOU WHAT WE HAVE.
IN THE 2005 PROCEEDING, TWO
EXPERTS APPOINTED.
ONE EXPERT SELECTED BY THE
DEFENSE, ONE EXPERT
SELECTED BY THE STATE.
THE DEFENSE EXPERT WAS
DR.^BLANDINO.
I WOULD REFER THE COURT TO
DR.^BLANDINO'S TESTIMONY AT
RECORD PAGE, CITING TO MY
ATTACHMENT TO THE ANSWER, IT
ACTUALLY APPEARS TWICE IN THE
RECORD BECAUSE JUDGE PERRY ALSO
ATTACHED IT TO HIS ORDER.
RECORD 105, 107, 108, 126 WHERE
DR.^BLANDINO SAYS UNEQUIVOCALLY
THIS MAN IS NOT MENTALLY
RETARDED.
I BELIEVE IT IS AT 126 HE SAYS
THIS MAN'S IQ HAS TESTED THE
SAME OVER THE LAST 31 YEARS.
DR.^BLANDINO ALSO SAYS, AND I
BELIEVE DR.^PRITCHARD THE SAME
THING, I CAN'T GIVE YOU RECORD
CITED TO IT. I KNOW IT IS IN
THERE BECAUSE I CROSS-EXAMINED
DR.^BLANDINO.
HE SAYS ON CROSS, THAT
INTELLIGENCE IS RELATIVELY
STABLE OVER TIME.
HE EXPLAINS WHY THE SUB-70
SCORES ARE NOT VALID SCORES.
AND IN DOING SO HE RELIES ON
THE NOTES OF THE CLINICIAN WHO
ADMINISTERED THOSE TESTS AND
THOSE NOTES REFLECTED THAT
BECAUSE OF THE EMOTIONAL ISSUES
I BELIEVE WAS THE PHRASE, THESE
SCORES DO NOT ACCURATELY
REFLECT THIS MAN'S
CAPABILITIES.
THAT THEY ARE HIGHER THAN THIS
REFLECTS.
>> DO YOU HAVE ANY REASON TO
BELIEVE THAT THE WAIS-IV IS
LESS ACCURATE THAN THE
WAIS-III?
>> YOU'RE MAKING ME AN EXPERT
ON MENTAL RETARDATION, JUSTICE
PARIENTE.
THERE IS SOME, IN FACT, IN
INTERNET RESEARCH THERE IS SOME
QUESTION THAT THE WAIS-IV MAY
IN FACT NOT BE QUITE AS GOOD.
>> WELL, ISN'T THAT THOUGH,
AGAIN THE ANSWER TO STOP THE
FLOOD OF WHATEVER THERE IS,
WHEN THE ABA REPORT CAME OUT WE
GOT SOME MOTIONS ABOUT THAT'S
NEWLY DISCOVERED AND THIS COURT
MADE A DECISION BECAUSE
WITHOUT HAVING AN EVIDENTIARY
HEARING, THAT WASN'T NEWLY
DISCOVERED EVIDENCE.
WE'VE HAD SEVERAL OF THESE
WAVES. EACH TIME THIS COURT HAS
SAID IT IS NOT NEWLY DISCOVERED
EVIDENCE.
MY CONCERN HERE IS BECAUSE IN
THIS CASE WE NEVER LOOKED AT
THE OTHER TWO PRONGS.
AND BECAUSE WE DO HAVE THIS
EVIDENCE OF HIS EARLY CHILDHOOD
BEING IN SCHOOLS FOR THE
MENTALLY RETARDED.
AND BECAUSE ON DIRECT APPEAL,
WE ACTUALLY UPHELD THE JUDGE'S
DENIAL OF MR.^JOHNSTON'S
REQUEST FOR SELF-REPRESENTATION.
AND REPORTS OF PSYCHIATRIST
AND PAST ADMISSIONS TO MENTAL
HOSPITALS DID NOT MAKE HIM
CAPABLE OF REPRESENTING
HIMSELF.
AND THAT WAS A POINT ON APPEAL.
THROUGHOUT THIS RECORD THERE IS
INDICATION THAT THIS DEFENDANT,
DOES HAVE SIGNS OF MENTAL
RETARDATION.
AND YET, BECAUSE WE CERTAINLY,
DID RELY ON WHAT HAPPENED IN
2005.
BUT MY CONCERN IS, IS THAT WE
ARE GUESSING ABOUT WHAT THIS 61
MEANS.
IF IT IS A MORE ACCURATE AND
RELIABLE TEST THAT'S ONE THING.
IF IT IS ACTUALLY REFINEMENT OR
LESS RELIABLE, THEN THAT OUT TO
BE KNOWN.
BUT RIGHT NOW I FEEL LIKE WE,
THE COURT WOULD BE GUESSING
ABOUT IT AND WRITING SOMETHING
IN AN OPINION THAT WE HAVE NO
REAL BASIS TO, YOU KNOW, TO
ASSESS.
>> JUSTICE PARIENTE, LET ME
RESPOND TO THAT IN THIS WAY.
THE DEFENDANT HAS NOT ALLEGED
IN HIS MOTION, THAT THE
TESTING OVER THE LAST 31 YEARS,
EACH OF WHICH HAS PRODUCED A
SCORE AT LEAST A STANDARD
DEVIATION ABOVE THE CUTTOFF FOR
MENTAL RETARDATION, WERE IN ANY
WAY, SHAPE, OR FORM INACCURATE.
>> WHAT DOES IT MEAN WHEN HE
SAYS THAT THE WAIS-IV IS REALLY
A MORE ACCURATE ASSESSMENT OF
HIS MENTAL, INTELLECTUAL
CAPABILITIES?
I MEAN SEEMS TO ME, IF HE IS
SAYING THAT THIS TEST IS MORE
ACCURATE, THAN, THERE IS
SOMETHING THAT IS NOT QUITE AS
ACCURATE ABOUT THE TEST THAT
WAS DONE BEFORE.
>> HE HAS GOT TO EXPLAIN 23
POINTS AND HE HADN'T BOTHERED
TO TRY.
IT IS THAT SIMPLE.
THIS IS, THE PRIOR TESTING, AND
LET ME PUT IT THIS WAY.
LET ME BACK UP A LITTLE BIT.
THE FIRST MENTAL RETARDATION OR
INTELLIGENCE TEST, RATHER, THAT
WAS GIVEN TO HIM OVER THAT
31-YEAR PERIOD DR.^BLANDINO
WAS TALKING ABOUT BACK IN 2005,
WAS THE WAIS-R.
THE FIRST REVISION OF THE WAIS
TEST.
SUBSEQUENT TO THE
ADMINISTRATION STATION OF THE
WAIS-R, THIS MAN WAS GIVEN THE
WAIS-III.
GUESS WHAT?
THE SCORE WAS THE SAME.
THAT WOULD SUGGEST, AND I WOULD
SUGGEST, PUT THE NAIL IN THE
COFFIN OF THE NOTION THAT
INTELLIGENCE IS STABLE OVER
TIME.
AND LET ME POINT OUT A COUPLE
OTHER THINGS DR.^BLANDINO SAID
THAT ARE KIND OF SIGNIFICANT TO
WHAT IS GOING ON HERE.
>> I'M A LITTLE PUZZLED BY YOUR
TOTAL RELIANCE ON TESTIMONY IN
2005 TO ADDRESS SOMETHING THAT
WAS NOT EVEN IN USE UNTIL 2009.
I READ BLANDINO'S.
I'VE GONE THROUGH EVERY LINE OF
HIS TESTIMONY AND ALL OF HIS
EXPLANATIONS WITH REGARD TO
EMOTIONAL OVERLAYS AND ALL
THOSE THINGS.
HOW DOES THAT EXPLAIN WHAT IS
OR IS NOT INVOLVED WITH A NEW
TEST?
>> WHAT IT IS RES JUDICATA.
IT IS AN ISSUE THAT'S BEEN
LITIGATED AND DECIDED.
THIS IS SERIAL LITIGATION BASED
UPON --
>> NO ONE IS DEBATING THAT THIS
IS, THAT THIS IS NOT A PLEASANT
KIND OF THING TO CONTINUE
EXTENDING AND THESE THINGS
EXTEND AND THIS COMES UP AND
THAT COMES UP BUT IT DOESN'T
ADDRESS WHETHER THERE IS SOME,
SOME DEVELOPMENT IN SCIENCE
THAT DIFFERENCE FOR EXAMPLE
BETWEEN AN X-RAY MACHINE AND AN
MRI.
I DON'T KNOW THAT THIS TEST IS
OR IS NOT.
YOU MAY BE ABSOLUTELY RIGHT BUT
CERTAINLY BLANDINO'S TESTIMONY
DOES NOT ADDRESS THE 2009 TEST.
>> OF COURSE NOT. IT COULDN'T.
>> OF COURSE, BUT YOU'RE ARGUING
IT LIKE THAT IS THE
BE-ALL-END-ALL.
THAT'S WHAT I'M ASKING.
WHY SHOULDN'T WE HAVE EVIDENCE
WITH REGARD TO WHAT IT IS, WHAT
IT DOES?
AND YOU MAY BE CORRECT.
TO GET THE ANSWER, WE NEED
FACTS.
>> BECAUSE, JUSTICE LEWIS,
THERE HAS GOT TO BE SOME
FINALITY TO THIS CASE AND
FINALTY IS NOT ACHIEVED BY
WAITING UNTIL THE LAST MINUTE
AS WE HAVE HERE.
HIS CLAIM --
>> MR.^NUNNALLY, FINALITY IS
ALL WELL AND GOOD.
WHAT WE'RE FACING THIS COURT IS
LOOKING THAT A TEST THAT WAS
DONE SAYS THIS MAN AS HAS A 61
IQ. EXECUTION IS FINAL.
>> YES, MA'AM, IT IS.
>> THIS MAN HAS A VALID AND
LEGITIMATE 61 IQ.
HE FALLS SQUARELY IN THE CASES
THAT SAID, A PERSON WHO IS
MENTALLY RETARDED CAN NOT BE
EXECUTED.
THAT'S WHAT WE ARE FACING.
WHETHER OR NOT THIS MAN SHOULD
BE EXECUTED WITHOUT FULLY
EXPLORING WHETHER OR NOT THIS
61 IQ IS A VALID IQ FOR THIS
DEFENDANT.
AND WHAT IS WRONG US AT LEAST,
SENDING THIS CASE BACK FOR A
EVIDENTIARY HEARING TO EXPLORE
WHETHER OR NOT THAT IS A VALID
IQ?
>> THERE ARE PRACTICAL AND
PROCEDURAL ISSUES THAT COME
INTO PLAY.
FIRST OF ALL, BY COUNSEL'S OWN
ADMISSION, THIS TEST WAS KNOWN
TO HIM IN AUGUST OF 2009, AND
COULD HAVE BEEN RAISED.
AND I WOULD SUGGEST, SHOULD
HAVE BEEN RAISED IN THIS COURT
THEN.
>> MR.^NUNNELLEY, AND I APPRECIATE
THAT THE COURT DOES
EVERYTHING IT CAN
WHEN A DEATH WARRANT IS SIGNED TO
ADHERE TO THOSE TIME LIMITS.
THE ISSUE IS WHETHER IT SHOULD
HAVE BEEN BROUGHT, IF HE HAD
THE TEST SINCE THE SUMMER,
WHETHER WE SHOULD HAVE HAD THE
MOTION FILED EARLIER. BUT WHAT
YOU'RE REALLY SAYING, LET'S GO
TO THE, ON THE MERITS IS THAT,
WHENEVER IT WAS FILED IF IT WAS
FILED THE DAY AFTER THE APPEAL
ON THE LAST CASE WAS FINAL, IT
WOULD BE, IT WOULD BE BARRED
BECAUSE THERE HAD ALREADY BEEN
A DETERMINATION OF MENTAL
RETARDATION.
THAT'S YOUR, THAT'S YOUR MAIN
POINT, CORRECT?
THAT WE'VE HAD A DETERMINATION?
THERE SHOULD NOT BE ANOTHER
BITE AT THE MENTAL RETARDATION
ANGLE, CORRECT?
>> THIS COURT IN ITS RULES
ESTABLISHED TIMES WITHIN WHICH
THOSE CLAIMS SHOULD BE BROUGHT
AND THIS DEFENDANT DID NOT DO
IT SO YES, IT IS TIME-BARRED.
>> IF HE HAD THE TEST SINCE, HE
HAD THE TEST IN AUGUST.
HE HAD A YEAR, THAT'S WHEN HE
KNEW THERE WAS SERIOUS DOUBT
ABOUT THE PRIOR TEST, THEN,
UNDER ORDINARY CIRCUMSTANCE HE
WOULD HAVE A YEAR FROM THEN.
>> NO, MA'AM.
WELL, YES, BUT I'M TALKING
ABOUT A DIFFERENT TIME BAR.
I'M TALKING ABOUT RULE 3.203
THAT SETS OUT IN THIS COURT'S
RULE WHEN CLAIMS FOR MENTAL
RETARDATION, WE'RE TALKING
HERE, IS JUSTICE LEWIS, ASKED
TO YOU FOCUS ON A, AS TO NEW,
THE EXCEPTION IS, IF SOMETHING
IS NEWLY DISCOVERED EVIDENCE.
YOU'RE ASKING USE TO MAKE A
DETERMINATION THAT THE WAIS-IV
ISN'T NEWLY DISCOVERED EVIDENCE
BECAUSE IT'S ONLY A REFINEMENT
AND IT WOULDN'T CALL INTO
QUESTION THE VALIDITY OF THE PRIOR
TESTING.
MY CONCERN IS WHEN YOU HAVE A
TEST THAT KNOW SHOWS A FULL
STANDARD DEVIATION DIFFERENCE,
AND AS JUSTICE QUINCE SAYS,
CLEARLY PUTS SOMEBODY IN THE
RANGE OF THE FIRST PRONG OF
MENTAL RETARDATION, WITH NO
KNOWLEDGE ABOUT THE TWO OTHER
PRONGS HAVING BEEN LITIGATES,
WITH THE HISTORY OF THIS MAN,
SHOWING INDICATIONS OF MENTAL
RETARDATION FROM EARLY STAGES,
HOW DO WE NOT INSURE WHAT
YOU'RE SAYING IS CORRECT
THROUGH EVIDENTIARY HEARING AS
OPPOSED TO JUST TAKING WHAT
YOU'RE SAYING AT FACE VALUE?
THAT'S MY CONCERN?
>> MY RESPONSE TO THAT WOULD
BE THIS. JUSTICE PARIENTE.
WE FULLY LITIGATED THE ISSUE OF
THIS MAN'S INTELLIGENCE.
THE DEFENDANT HAS NEVER, EVER,
EVER, CHALLENGED THOSE RESULTS.
HE SAYS THIS TEST IS BETTER.
BUT HE DOES NOT EXPLAIN WHY,
AND HE DOES NOT ALLEGE, ANY
PROBLEM WITH WAIS-R OR
THE WAIS-III.
THAT IS A FAILURE OF PLEADING.
IF THERE IS A PROBLEM WITH
THOSE TESTS, IF HE CONTENDS
THOSE ARE INACCURATE THAT IS
PART OF, HE HAS TO PLEAD IN
ORDER TO COME IN WITH THIS.
>> THIS IS, THIS IS MORE VALID
AND RELIABLE TEST AND THAT TEST
SAYS 61, BY THE VERY NATURE
THAT SOMETHING IS MORE
RELIABLE, WOULD SAY THAT THE
PRIOR TEST IS LESS RELIABLE.
I MEAN I DON'T KNOW THAT WE, I
MEAN, AM I MISSING SOMETHING?
YOU SAID, YOU SAID YOU HAVE REASON
TO DOUBT THE WAIS-IV, AND ITS
ACCURACY?
>> I SAID THERE ARE SOME
QUESTIONS ABOUT IT.
I KNOW FROM INTERNET RESEARCH.
I HAVEN'T, I HAVEN'T LITIGATED
THE ISSUE AND --
>> 61 IS MORE ACCURATE
ASSESSMENT OF HIS IQ THEN THAT
WOULD RAISE A CLAIM THAT NEEDS
TO BE AT LEAST EXPLORED ON AN
EVIDENTIARY BASIS.
LET ME ASK YOU THIS.
NOW, I CAN UNDERSTAND MORE
ACCURATE BUT DOES MORE ACCURATE
FIT THE KIND OF DISCREPANCY WE
HAVE HERE BETWEEN 61 AND THESE,
SERIES OF OTHER TESTS THAT WERE
SIGNIFICANTLY HIGHER?
I MEAN, IF THE NOTION THAT
THIS, THAT THE 61 IS ACCURATE,
WOULD CALL INTO QUESTION THE
WHOLE WAIS THREE SEEMS TO ME
BECAUSE OF THE MAGNITUDE.
IF THIS 61 IS ACCURATE, IT
WOULD SEEM TO FOLLOW FROM THAT
THAT THE WAIS-III WAS NOT A
VALID TEST.
>> NO, SIR.
>> THAT HAS NOT BEEN ALLEGED.
THERE ARE TWO POSSIBILITIES
HERE, THERE MAY BE OTHERS BUT
TWO OCCUR TO ME.
ONE IS THAT THE WAIS-III IS
INVALID, WHICH HAS NOT BEEN
ALLEGED.
THE OTHER IS THERE IS SOME
MALINGERING GOING ON HERE OR
SOME OTHER CIRCUMSTANCE THAT
WOULD HAVE AFFECTED HIS
PERFORMANCE AT THE TIME THE
TEST WAS ADMINISTERED.
AM I MISSING SOMETHING?
>> YOU'RE ABSOLUTELY RIGHT.
AND, I WOULD ADD, JUSTICE
CANADY, THAT IN ADDITION TO
CALLING INTO QUESTION THE
WAIS-III, THIS ALSO CALLS
INTO QUESTION THE WAIS-R THAT
PRODUCED THE SAME SCORE.
IF YOU BUY THE DEFENDANT'S
ARGUMENT THAT THE NEWEST TEST
IS ALWAYS THE BEST ONE, THEN,
THAT WIPES OUT ALL THE PRIOR
TESTING.
IT DOESN'T WIPE OUT JUST THE
WAIS-III THAT SHOWED THE
DEFENDANT NOT MENTALLY
RETARDED.
IT WIPES OUT EVERY SINGLE PRIOR
TEST AND WE START OVER, AND
THAT IN TURN CALLS INTO
QUESTION THE ABILITY TO EVER
ESTABLISH THE PRE-18 ONSET IF
YOU'RE GOING TO WIPE OUT ALL
THE PRIOR TESTING WHICH THIS
ARGUMENT DOES.
>> IT REALLY IN MY MIND COMES
DOWN TO WHY NOT EXPLORE ALL OF
THE THINGS THAT YOU HAVE SAID
IN AN EVIDENTIARY HEARING
RATHER THAN US SPECULATING
ABOUT WHETHER OR NOT THE WAIS-IV
IS BETTER, WHETHER IT
CALLS INTO THE QUESTION THE III
AND THE R?
WHY NOT EXPLORE ALL OF THIS IN
AN EVIDENTIARY HEARING SO ALL
OF US REALLY HAVE SOMETHING TO
REALLY PIN OUR HATS ON?
SITTING HERE TODAY WE CAN NOT
REALLY SAY WHETHER IT IS OR IT
ISN'T BECAUSE IT'S NEVER
ACTUALLY BEEN EXPLORED IN AN
EVIDENTIARY HEARING.
MAYBE YOU CAN GET A
PSYCHOLOGIST OR PSYCHIATRIST
WHO WILL CONVINCE US THAT THIS
TEST IS NO BETTER THAN THE
TESTS WE HAD BEFORE AND MAYBE
HE WAS, AS JUSTICE CANADY SAYS,
MALINGERING WHEN THIS TEST WAS
ADMINISTERED.
BUT WE REALLY DON'T HAVE ANY OF
THAT BEFORE US.
THAT'S THE REAL PROBLEM, AND
THE REAL ISSUE I THINK THAT IS
BEFORE US.
>> IF THIS COURT BUYS THE
DEFENSE ARGUMENT THAT THE
NEWEST TEST IS ALWAYS THE BEST,
IF HE CAN FIND A PSYCHOLOGIST
SOMEWHERE TO GET A SCORE THAT
HELPS HIM, THAT OPENS EVERY
SINGLE ONE OF THESE CASES UP.
IT OPENS UP EVEN THE CASES THAT
HAVE NOT PREVIOUSLY ALLEGED
MENTAL RETARDATION.
>> WE'RE NOT IN THE BUSINESS OF
BUYING ANYTHING.
WE'RE TRYING TO BE IN THE
BUSINESS OF RULING BASED ON FACTS.
YOUR ARGUMENTS ARE NOT FACTS.
YOU'RE ENTITLED TO YOUR LEGAL
ARGUMENTS BUT YOU'RE NOT
ENTITLED TO ESTABLISH THE FACTS
WITHOUT A RECORD.
AND THAT'S ALL THAT THE
QUESTIONS ARE DIRECTED TO.
YOU'VE BECOME INDIGNANT BECAUSE
SOMEONE IS GOING TO ASK A
QUESTION ABOUT SCIENTIFIC
TESTING THAT HAS NOT BEEN,
ACCORDING TO ANY RECORDS
DELIVERED TO US, BEEN TESTED IN
AN ADVERSARIAL WAY IN A COURT
OF LAW.
YOU MAY BE ABSOLUTELY CORRECT
BUT DON'T WE OPERATE ON RECORDS
THAT ARE GIVEN TO US? AND
WE'VE GONE THROUGH THESE PRIOR
TRANSCRIPTS.
WE UNDERSTAND EVERYTHING THAT
YOU'VE SAID AND YOU MAY
ULTIMATELY, ABSOLUTELY BE RIGHT
BUT DON'T WE OPERATE, HAVEN'T
WE SAID WE OPERATE ON
TESTIMONY, ON EVIDENCE
PRESENTED TO A TRIAL JUDGE SO
THAT WE KNOW THAT IS CORRECT OR
NOT CORRECT?
WE'RE PRETTY FINAL WHAT WE'RE
TALKING ABOUT TODAY.
>> THIS ISSUE, THE ISSUE OF
THIS MAN'S MENTAL RETARDATION
HAS BEEN FULLY AND FAIRLY
LITIGATED IN THE 2005-2006
PROCEEDINGS.
THE DEFENDANT AT THAT TIME. WHO
WAS REPRESENTED BY ABLE
COUNSEL, CHOSE NOT AND DID NOT
GO INTO THE ADAPTIVE
FUNCTIONING COMPONENTS THAT ARE
ALLEGED WITHIN THE PLEADING. I
THOUGHT THAT, NOW I LOOKED
BACK AT THOSE, THE ISSUES ON
APPEAL.
>> I THOUGHT THERE WAS AN ARGUMENT
THAT THE, THAT THE LAWYER
WANTED TO BRING UP ADAPTIVE
FUNCTIONING BUT THE TRIAL JUDGE
AND IN THE ARGUMENT THEN WAS,
LISTEN, IF HE DOESN'T GET PAST
THE FIRST PRONG WE DON'T HAVE
TO LOOK AT OTHER TWO PRONGS.
SO OUR RECORD DOESN'T CONTAIN
ANY OF THESE SCHOOL RECORDS
FROM PRE-18 THAT SHOWS
MARGINAL FUNCTIONING IN SCHOOL.
SECOND, ABLE TO READ AT FIRST
GRADE OR SECOND GRADE LEVEL.
THAT IS NOT IN OUR RECORD.
DO YOU AGREE THAT IT IS NOT THERE?
IT WAS SOMETHING, THAT THE
DEFENSE LAWYER SAID, THAT HE
WANTED TO BRING UP BUT THE
JUDGE SAID, NO, WE'RE JUST GOING
TO DO THE FIRST PRONG?
AM I WRONG ABOUT THAT?
>> PARTIALLY.
>> I'M PARTIALLY WRONG ABOUT
THAT?
DOES THAT MEAN I'M AT LEAST
PARTIALLY RIGHT?
>> DEPENDS.
HALF FULL OR HALF EMPTY.
IT STILL HAS TO BE RIGHT.
NOTHING KEPT DEFENSE COUNSEL
FROM INTRODUCING THAT EVIDENCE.
THE TWO EXPERTS TESTIFIED
BECAUSE THIS MAN'S FUNCTIONING
WAS SO HIGH, THAT THE STANDARD
OF THE PROFESSION DID NOT
NECESSITATE INQUIRY INTO
ADAPTIVE FUNCTIONING.
HOWEVER THAT DOESN'T MEAN
COUNSEL COULD NOT HAVE PUT IT
IN HAD HE CHOSEN TO DO SO.
HE -- THAT EVIDENCE IS NOT
NEWLY DISCOVERED.
IT'S BEEN AROUND HOWEVER IT HAS
BEEN AROUND.
IT COULD HAVE BEEN USED THEN
BUT IT WAS NOT.
>> LET ME ASK YOU A QUESTION
ABOUT THE OTHER TWO PRONGS.
ONE HAS TO DO WITH THE ONSET
BEFORE AGE 18 BUT THE ADAPTIVE
FUNCTIONING PORTION OF IT, IS
THAT PRESENT ADAPTIVE
FUNCTIONING OR DO WE GO, DO WE
LOOK AT PRESENT AND PAST
ADAPTIVE FUNCTIONING?
>> AS THIS COURT FOUND IN A
CASE THAT, DR.^EISENSTEIN WAS
INVOLVED IN, PRESENT MEANS WHAT
IT SAYS.
PRESENT MEANS, RIGHT NOW EVEN
THOUGH DR.^EISENSTEIN WAS
TRYING TO SAY PRESENT REALLY
MEANT PAST AND THERE WAS A
COMMENT ABOUT ALICE THROUGH THE
LOOKING GLASS AND, THE RABBIT
OR MAD HATTER, I CAN'T REMEMBER
WHICH ONE.
REPRODUCED IN THE STATE'S
BRIEF.
PRESENT MEANS RIGHT NOW.
PRESENT DOESN'T MEAN AT SOME
POINT IN TIME IN THE PAST.
THE RULE OF STATUTE AND LAW.
>> OF COURSE THAT THEN, SO THE
ARGUMENT THEN IS, THE ADAPTIVE
FUNCTIONING, IF THAT'S TRUE,
KEEPS ON CHANGING THROUGH TIME
AND, HAPPENSTANCE OF WHEN THE
MOTION IS BROUGHT.
BECAUSE IF, YOU KNOW, AGAIN, I
THINK WE HAVE HAD THIS BECAUSE
ADAPTIVE FUNCTIONING IN A
PRISON SETTING WHERE YOU'VE
BEEN ON DEATH ROW FOR OF THIS
TIME, WHAT DOES THAT MEAN?
FIRST, WHETHER THIS MAN EVER
WAS ABLE TO LIVE ON HIS OWN,
WRITE A CHECK, BALANCE A
CHECKBOOK.
GO TO SCHOOL.
THOSE ARE CERTAINLY LOOKED AT
AS BEING, INDICATIVE OF
ADAPTIVE FUNCTION, WOULDN'T
YOU, WOULDN'T IT BEAR ON THAT
DETERMINATION IN SOME WAY?
WHOLE TOTALITY OF THE PERSON'S
LIFE?
>> LET ME ANSWER THAT THIS WAY.
I'M REALLY NOT TRYING TO EVADE
THE QUESTION.
THIS COURT HAS SAID PRESENT
ADAPTIVE FUNCTIONING HAS ITS
COMMON MEANING WHICH IS RIGHT
NOW TODAY.
I SUPPOSE THE INDIVIDUAL'S
PRIOR, PRIOR BEHAVIORS, OKAY,
WOULD BE ARGUABLY RELEVANT TO
THE PRE-18 ONSET COMPONENT.
AS FAR AS MEETING PRESENT
ADAPTIVE FUNCTIONING
COMPONENT, NO, THEY DO NOT.
ANY OF THE EVALUATIONS NO
MATTER WHAT TEST IT IS, NO
MATTER WHAT IT IS A SNAPSHOT OF
THAT DEFENDANT'S FUNCTIONING
THAT DAY.
HE MAY BE HAVING A GOOD DAY, HE
MAY BE HAVING A BAD DAY, BUT
THE BOTTOM LINE IS HE CAN'T
FAKE. THAT IS SOMETHING WE KNOW,
I'VE SAID THAT BEFORE IN THIS COURT
IN THESE CASES, AND, THE BOTTOM
LINE TO ALL OF THIS IS, THIS
MAN HAS TESTED CONSISTENTLY
ABOVE THE LEVEL OF MENTAL
RETARDATION.
THIS COURT HAS UPHELD THAT
FINDING THAT CAME FOLLOWING A
FULLEST TRIHEARING.
THERE IS NO ASSERTION
WHATSOEVER THAT ANY OF THAT
PRIOR TESTING WAS SO WRONG,
THAT IT WAS 23 POINTS HIGH,
THAT THERE HAS NEVER BEEN ANY
SUCH ASSERTION.
THIS ISSUE HAS BEEN DECIDED, IT
HAS BEEN FULLY LITIGATED AND IT
IS TIME FOR THIS SENTENCE BE
CARRIED OUT.
THANK YOU.
>> AND THANK YOU.
MR.^DOSS, WE GIVE YOU A COUPLE
MINUTES FOR REBUTTAL.
>> AS TO JUSTICE PARIENTE'S
QUESTION REGARDING WHETHER THIS
HAD BEEN, THE ADOPTIVE
FUNCTIONING ISSUE HAD BEEN
LITIGATED BEFORE, WHEN YOU LOOK
AT THE OPINION FROM THE PRIOR
CASE THE, MR.^MILLS ACTUALLY
MADE THE ARGUMENT, I'M LOOKING
AT 960 SO,2D, 761 AND
THIS COURT SAID JOHNSTON ARGUES
THAT THE TRIAL COURT ERRED
FINDING HIM NOT MENTALLY
RETARDED BECAUSE THE EXPERTS
APPOINTED BY TRIAL ONLY
CONSIDERED THE FIRST PRONG.
THE COURT WENT ON TO FIND NO
ERROR AND WITHIN THE TESTIMONY
OF BLANDINO, DOCTORS BLANDINO
AND PRITCHARD, THEY BOTH SAID
THEY NEVER EVEN CONSIDERED THE
SECOND OR THIRD PRONG BECAUSE
HE DIDN'T MEET THE FIRST PRONG.
WHAT IS BEFORE THE COURT IS
WHAT WE ALLEGED IN THE
SUCCESSIVE MOTION THAT AT THIS
POINT IS TO BE TAKEN AS TRUE.
>> NOW, WHY IS MR.^NUNNELLEY
NOT CORRECT?
THAT THIS HAS BEEN LITIGATED
FOR YEARS AND WE GO BACK
THROUGH AND WE SEE ALL OF THESE
SCORES, THEN ALL OF SUDDEN WE
GOT NEW TEST?
WHY IS THAT NOT LIKE OR SIMILAR
TO, RETESTING WE CAN ALWAYS
FIND A DIFFERENT EXPERT, WE CAN
ALWAYS FIND SOMETHING DIFFERENT
TO BRING UP? WHY IS HE NOT
CORRECT?
THAT THIS IS A STEP IN THESE
STANDARDIZED STEPS THAT HAVE
BEEN DEVELOPED.
BECAUSE THERE MAY BE SOME
CHANGES IN THE TEST DOES NOT
NECESSARILY TRANSLATE INTO WHAT
OCCURRED BEFORE IS WRONG, AND
THAT'S WHAT WE'RE DEALING WITH
HERE.
>> BECAUSE THE LITERATURE SAYS
THESE ARE THE MOST ACCURATE,
RELIABLE TESTS.
IT IS NOT AS IF, NOT AS IF THE
SITUATION WHERE EXPERTS ARE
LOOKING AT THE SAME DATA THAT
THESE OTHER EXPERTS WERE
LOOKING AT AND CAME UP WITH A
DIFFERENT OPINION.
THERE IS DIFFERENT DATA OUT
THERE, THAT BEING THE WAIS-IV
THAT WASN'T PRESENT IN 2005
THAT DOCTORS BLANDINO AND
PRITCHARD, IT WOULD BE
IMPOSSIBLE FOR THEM TO HAVE
BEEN CONSIDERED.
>> YOU WOULD AGREE IF
DR.^PRITCHARD LOOKS AT THIS AND
SAYS, AND GIVES A REASON FOR
THE DISPARITY, TRIAL COURT
COULD FIND THAT IN FACT, THIS
ISN'T NEWLY DISCOVERED
EVIDENCE?
IT'S, IT IS ACTUALLY AN
INACCURATE TEST?
ONE OF THEM HAS TO BE
INACCURATE, WOULD YOU AGREE
WITH THAT?
>> I THINK IT IS CLEAR FROM THE
LITERATURE AND FROM WHAT WE'VE
ALLEGED THAT THE WAIS-IV IS
MORE ACCURATE.
I DON'T KNOW WHAT DR.^PRITCHARD
WOULD COULD SAY BUT.
>> THAT'S CERTAINLY --
>> MIGHT CALL INTO QUESTION BUT
WHAT IS BEFORE THE COURT NOW WE
HAVE AS THE MOST ACCURATE --
>> YOU WOULD AGREE IF THE COURT
HEARS FROM WHOEVER THE STATE
PUTS ON AND
EXPLAINS THE DISCREPANCY IN THE
WAIS AS TO WHY THIS WAS AN
ABERRANT SCORE AND THAT
FINDING WOULD BE SOMETHING THAT
WE WOULD HAVE TO AFFIRM ON
APPEAL, IF THERE'S CREDIBILITY
DETERMINATIONS?
>> IF THE STATE WAS ABLE TO
PRODUCE COMPETENT, SUBSTANTIAL
EVIDENCE AND THE TRIAL COURT
RULED THAT I THINK THAT WOULD
FALL WITHIN THAT, WITHIN THAT,
WITHIN THE COURT'S CASE LAW,
THAT GOVERNS THAT, NOT KNOWING,
NOT KNOWING WHAT WAS SAID.
I CAN'T PROPERLY RESPOND.
I DON'T THINK ONE WAY OR
ANOTHER, OTHER THAN TO SAY THEY
WOULD HAVE TO BE COMPETENT AND
SUBSTANTIAL.
>> AND MR.^DOSS AND
MR.^NUNNELLEY, THANK YOU VERY
MUCH FOR YOUR PRESENTATIONS
HERE TODAY.
Sunday, March 7, 2010
Guest column: Fla.'s death penalty is a broken system
Posted: March 7, 2010 - 12:20am
By NANCY O'BYRNE
This is in response to a story written by The Associated Press's Sarah Larimer, "State Executes Grossman....," on Feb. 17 in The St. Augustine Record. I was one of the vigillers and banner-bearers on that day ("Pax Christi Northeast Florida -- Justice, Peace, Reconciliation") during Martin Grossman's execution. I was interviewed by one of your reporters, as was one of the other vigillers, but not one word of what we had to say got into the article. Why would you send out a photographer and reporter to interview people, and then not use anything of what they had to say in your article? Is it that you don't want to publish what some people in our community think about the death penalty? Is it not financially or politically expedient for you to publish our point of view?
We were there because we believe killing the killers does not solve the problems of violence in our culture. We were there because we believe that the Florida death penalty is a broken system that is discriminatory against the poor and minorities; it does not bring the closure that it promises to the victim's families; and it costs the citizens of Florida $51 million more each year as opposed to life sentences without parole.
We have put to death 22 people in Florida alone that have been proven to be innocent (129 nationwide). Why would we continue such a system? Maybe it has to do with who is making a profit from this system -- or who wants to get elected, so they must be "tough on crime."
Many of us believe in rehabilitative and restorative justice -- the kind that puts back on our streets ex-offenders that are ready to contribute back to society, rather than just return back to prison. We believe many are redeemable; but we need a criminal justice system that is willing to treat offenders as human beings with an innate dignity -- holding them responsible, while helping them find the tools they need to make better choices and find meaning in life.
If we are pouring all of our funding into building more and more prisons, while cutting funding for drug addiction and rehabilitative programs, what do we expect to gain as a society? We now have 2.3 million people in our (nation's) prisons -- that's seven times more than any other country in the world. Is it that our citizens are more violent than anywhere else -- or is it that we have a criminal justice system that just wants to solve its problems by locking people up and throwing away the key?
I know we can do better than that. I pray we can do better than that.
*
Nancy O'Byrne is the chairperson of the Catholic Diocesan Justice and Peace Commission and has held that position for about 10 years. She also is co-ordinator for Pax Christi Northeast Florida and for JustFaith for the Diocese of St. Augustine (an adult formation program on Catholic Social Teaching.) She also belongs to FADP (Floridians for Alternatives to the Death Penalty) and to the Associates of the Sisters of St. Joseph. "In accordance with the U.S. Bishops Campaign to End the Use of the Death Penalty, we have helped initiate execution vigils around our diocese: in front of the Duval County Courthouse in downtown Jacksonville; in front of the Flagler County Courthouse in Bunnell; and at the corners of State Road A1A South and 16th Streets in St. Augustine," she said.
By NANCY O'BYRNE
This is in response to a story written by The Associated Press's Sarah Larimer, "State Executes Grossman....," on Feb. 17 in The St. Augustine Record. I was one of the vigillers and banner-bearers on that day ("Pax Christi Northeast Florida -- Justice, Peace, Reconciliation") during Martin Grossman's execution. I was interviewed by one of your reporters, as was one of the other vigillers, but not one word of what we had to say got into the article. Why would you send out a photographer and reporter to interview people, and then not use anything of what they had to say in your article? Is it that you don't want to publish what some people in our community think about the death penalty? Is it not financially or politically expedient for you to publish our point of view?
We were there because we believe killing the killers does not solve the problems of violence in our culture. We were there because we believe that the Florida death penalty is a broken system that is discriminatory against the poor and minorities; it does not bring the closure that it promises to the victim's families; and it costs the citizens of Florida $51 million more each year as opposed to life sentences without parole.
We have put to death 22 people in Florida alone that have been proven to be innocent (129 nationwide). Why would we continue such a system? Maybe it has to do with who is making a profit from this system -- or who wants to get elected, so they must be "tough on crime."
Many of us believe in rehabilitative and restorative justice -- the kind that puts back on our streets ex-offenders that are ready to contribute back to society, rather than just return back to prison. We believe many are redeemable; but we need a criminal justice system that is willing to treat offenders as human beings with an innate dignity -- holding them responsible, while helping them find the tools they need to make better choices and find meaning in life.
If we are pouring all of our funding into building more and more prisons, while cutting funding for drug addiction and rehabilitative programs, what do we expect to gain as a society? We now have 2.3 million people in our (nation's) prisons -- that's seven times more than any other country in the world. Is it that our citizens are more violent than anywhere else -- or is it that we have a criminal justice system that just wants to solve its problems by locking people up and throwing away the key?
I know we can do better than that. I pray we can do better than that.
*
Nancy O'Byrne is the chairperson of the Catholic Diocesan Justice and Peace Commission and has held that position for about 10 years. She also is co-ordinator for Pax Christi Northeast Florida and for JustFaith for the Diocese of St. Augustine (an adult formation program on Catholic Social Teaching.) She also belongs to FADP (Floridians for Alternatives to the Death Penalty) and to the Associates of the Sisters of St. Joseph. "In accordance with the U.S. Bishops Campaign to End the Use of the Death Penalty, we have helped initiate execution vigils around our diocese: in front of the Duval County Courthouse in downtown Jacksonville; in front of the Flagler County Courthouse in Bunnell; and at the corners of State Road A1A South and 16th Streets in St. Augustine," she said.
Life or death decision
March 1, 2010
Life or death decision
Ana Rebecca Rodriguez
Staff Writer
As part of their goal to educate individuals on issues concerning the death penalty, the Tallahassee Citizens Against the Death Penalty group held a free public workshop Saturday, Feb. 25, at the LeRoy Collins Public Library. Speakers at the event presented attendees with reasons to advocate ending the death penalty, and provided information on how to do so, citing evidence in several areas including legal, ethical, religious and financial problems associated with the death penalty.
Today, Florida is among 35 states that continue to sentence using the death penalty. There are a total of 33 scheduled executions for 2010, including the scheduled execution of David Johnston in Florida on March 9.
In her welcome address, Louise Ritchie, president of the TCADP, explained the goals of the organization.
“What we are doing is trying to educate people who, in general, are against the death penalty, so that (they) feel more empowered to speak out about this issue,” said Ritchie. “We are not an organization that believes in word violence; we will not try to force you to be against the death penalty.”
The workshop began with a general overview of the issue. Sheila Meehan, immediate past president of the TCADP, shared her own experiences working with the legal aspects of the death penalty via her involvement in the case of Richard Cooper, an individual on death row, and provided statistical information on the death penalty. According to Meehan, 11 states considered abolishing the death penalty in 2009, in part, she said, because of the high cost.
In 1972, the U.S. Supreme Court held that capital punishment was unconstitutional in the case of Furman v. Georgia and abolished the death penalty all over the country. In 1976, however, the Supreme Court overturned its decision and upheld the constitutionality of the death penalty. John Spenkelink was the first person executed in Florida in 1979 after the re-institution of the death penalty.
Meehan said that, according to the Death Penalty Information Center, as of Nov. 3, 2009, there have been 139 exonerations since 1973, meaning that those particular death row inmates have been found innocent of the crime. Florida leads the pack with a total of 23.
Most of the exonerations, said Meehan, came as the result of DNA evidence, which is collected in only 10 percent of cases. Of that 10 percent of collected DNA, it is only available another 10 percent of the time. Meehan, a former assistant director of the Innocence Project of Florida, which attempts to free inmates on death row who are innocent of the crime for which they are serving, has reviewed death penalty cases the group found suspect.
“There were many, many cases that we reviewed where we felt that this person was probably innocent, but when we went to get the actual evidence, it wasn’t there, because there is no uniform way of keeping it,” said Meehan.
The workshop continued with a presentation by Susan Gage, a former Florida Public Radio reporter who witnessed the execution of John Earl Bush in 1996 after a former boss requested she cover the story.
“To say that it changed my life is an understatement,” said Gage, who after witnessing the execution, began to further investigate the death penalty and specifically, the use of the electric chair.
“What I saw was a body that was very traumatized by that method; I started asking questions,” said Gage.
Today, as a TCADP board member, Gage continues to share her story in support of the abolishment of the death penalty.
Agnes Furey, a survivor of an attempted homicide and TCADP board member, also shared her story in support of the cause. In 1998, Furey’s 40-year-old daughter and six-year-old grandson were murdered. With the confession of the suspect, the state attorney called for the death penalty almost immediately. At first, Furey agreed with the decision.
About six months later, Furey was staffing a table for Big Bend Cares at the annual Christmas party, where she found herself across the aisle from Kindred Spirits, a group that provides support to death row inmates. After a conversation with a woman at that table, Furey said she came to a realization.
“I just had a real moment of clarity,” said Furey. “(I realized) that these are real people.”
After that conversation, Furey received a phone call from the state attorney’s office on a Thursday, where they informed her that the defendant had agreed to plead guilty to two counts of capital murder if he would not be susceptible to the death penalty. The attorney asked Furey to make a decision of whether or not to accept the plea deal by the close of business the following afternoon.
“(TCADP’s slogan), ‘Don’t kill in my name,’ is very, very real to me, because I had to make that decision,” said Furey.
Furey accepted the plea deal, and the court sentenced the defendant to two consecutive life terms.
“There is no doubt in my mind that, had the case gone to trial, he would have been sentenced to death,” said Furey. “I did not want to tell (my daughter’s other children) that it’s OK to kill someone. It wasn’t OK for him to kill my daughter, and it’s not OK for us to kill him.”
Florida State University religion Professor Emeritus and TCADP board member Walter Moore related religious and spiritual views against the death penalty through Christianity, while Shimon Gottschalk, FSU social work professor Emeritus and TCADP board member, communicated similar views via Judaism.
Sarah Bacon, FSU professor of criminology, provided information on three of the problems with the administration of capital punishment, including the issues of botched executions and the question of cruel and unusual punishment within those instances.
According to Bacon, the American Veterinary Association has reviewed the method used in lethal injection execution and determined that those methods would not be appropriate to euthanize animals.
The second issue Bacon raised was that of innocence, once again referring to the fact of the number of exonerations since 1973. Bacon referred to the case of Cameron Todd Willingham, a Texas man who was convicted in 1992 and executed in 2004 for the murder of his three children in an apparent arson fire. Since his execution, arson experts and fire investigators have come forth and declared that the fire that killed Willingham’s three children was accidental and not caused by arson.
The final issue Bacon spoke on was that of cost.
“The fact is that the death penalty is inordinately more expensive than any other viable alternative,” said Bacon.
According to Bacon, the annual cost of the capital punishment system in California is $137 million per year, and according to Bacon, is one of the least efficient systems in the nation. If the state of California were to do away with the death penalty completely, however, and instead recommend life in prison, the cost to taxpayers would be $11.5 million per year.
According to Bacon, Florida could save about $51 million per year if the state decided to abolish the death penalty.
The last speaker, Mike McCarron, executive director of the Florida Catholic Conference, provided tips on how to lobby effectively against the death penalty. McCarron provided sample letters to send to state legislators and governors, as well as handouts detailing ways to meet with legislators and aids in person.
According to McCarron, it is important to first know what you want to say. He suggests beginning by making a list of bills or issues of interest, sketching out a speaking outline and then scheduling an appointment.
For more information, visit the TCADP’s Web site at www.tcadp.net, or their Facebook group at “Tallahassee Citizens Against the Death Penalty.”
Life or death decision
Ana Rebecca Rodriguez
Staff Writer
As part of their goal to educate individuals on issues concerning the death penalty, the Tallahassee Citizens Against the Death Penalty group held a free public workshop Saturday, Feb. 25, at the LeRoy Collins Public Library. Speakers at the event presented attendees with reasons to advocate ending the death penalty, and provided information on how to do so, citing evidence in several areas including legal, ethical, religious and financial problems associated with the death penalty.
Today, Florida is among 35 states that continue to sentence using the death penalty. There are a total of 33 scheduled executions for 2010, including the scheduled execution of David Johnston in Florida on March 9.
In her welcome address, Louise Ritchie, president of the TCADP, explained the goals of the organization.
“What we are doing is trying to educate people who, in general, are against the death penalty, so that (they) feel more empowered to speak out about this issue,” said Ritchie. “We are not an organization that believes in word violence; we will not try to force you to be against the death penalty.”
The workshop began with a general overview of the issue. Sheila Meehan, immediate past president of the TCADP, shared her own experiences working with the legal aspects of the death penalty via her involvement in the case of Richard Cooper, an individual on death row, and provided statistical information on the death penalty. According to Meehan, 11 states considered abolishing the death penalty in 2009, in part, she said, because of the high cost.
In 1972, the U.S. Supreme Court held that capital punishment was unconstitutional in the case of Furman v. Georgia and abolished the death penalty all over the country. In 1976, however, the Supreme Court overturned its decision and upheld the constitutionality of the death penalty. John Spenkelink was the first person executed in Florida in 1979 after the re-institution of the death penalty.
Meehan said that, according to the Death Penalty Information Center, as of Nov. 3, 2009, there have been 139 exonerations since 1973, meaning that those particular death row inmates have been found innocent of the crime. Florida leads the pack with a total of 23.
Most of the exonerations, said Meehan, came as the result of DNA evidence, which is collected in only 10 percent of cases. Of that 10 percent of collected DNA, it is only available another 10 percent of the time. Meehan, a former assistant director of the Innocence Project of Florida, which attempts to free inmates on death row who are innocent of the crime for which they are serving, has reviewed death penalty cases the group found suspect.
“There were many, many cases that we reviewed where we felt that this person was probably innocent, but when we went to get the actual evidence, it wasn’t there, because there is no uniform way of keeping it,” said Meehan.
The workshop continued with a presentation by Susan Gage, a former Florida Public Radio reporter who witnessed the execution of John Earl Bush in 1996 after a former boss requested she cover the story.
“To say that it changed my life is an understatement,” said Gage, who after witnessing the execution, began to further investigate the death penalty and specifically, the use of the electric chair.
“What I saw was a body that was very traumatized by that method; I started asking questions,” said Gage.
Today, as a TCADP board member, Gage continues to share her story in support of the abolishment of the death penalty.
Agnes Furey, a survivor of an attempted homicide and TCADP board member, also shared her story in support of the cause. In 1998, Furey’s 40-year-old daughter and six-year-old grandson were murdered. With the confession of the suspect, the state attorney called for the death penalty almost immediately. At first, Furey agreed with the decision.
About six months later, Furey was staffing a table for Big Bend Cares at the annual Christmas party, where she found herself across the aisle from Kindred Spirits, a group that provides support to death row inmates. After a conversation with a woman at that table, Furey said she came to a realization.
“I just had a real moment of clarity,” said Furey. “(I realized) that these are real people.”
After that conversation, Furey received a phone call from the state attorney’s office on a Thursday, where they informed her that the defendant had agreed to plead guilty to two counts of capital murder if he would not be susceptible to the death penalty. The attorney asked Furey to make a decision of whether or not to accept the plea deal by the close of business the following afternoon.
“(TCADP’s slogan), ‘Don’t kill in my name,’ is very, very real to me, because I had to make that decision,” said Furey.
Furey accepted the plea deal, and the court sentenced the defendant to two consecutive life terms.
“There is no doubt in my mind that, had the case gone to trial, he would have been sentenced to death,” said Furey. “I did not want to tell (my daughter’s other children) that it’s OK to kill someone. It wasn’t OK for him to kill my daughter, and it’s not OK for us to kill him.”
Florida State University religion Professor Emeritus and TCADP board member Walter Moore related religious and spiritual views against the death penalty through Christianity, while Shimon Gottschalk, FSU social work professor Emeritus and TCADP board member, communicated similar views via Judaism.
Sarah Bacon, FSU professor of criminology, provided information on three of the problems with the administration of capital punishment, including the issues of botched executions and the question of cruel and unusual punishment within those instances.
According to Bacon, the American Veterinary Association has reviewed the method used in lethal injection execution and determined that those methods would not be appropriate to euthanize animals.
The second issue Bacon raised was that of innocence, once again referring to the fact of the number of exonerations since 1973. Bacon referred to the case of Cameron Todd Willingham, a Texas man who was convicted in 1992 and executed in 2004 for the murder of his three children in an apparent arson fire. Since his execution, arson experts and fire investigators have come forth and declared that the fire that killed Willingham’s three children was accidental and not caused by arson.
The final issue Bacon spoke on was that of cost.
“The fact is that the death penalty is inordinately more expensive than any other viable alternative,” said Bacon.
According to Bacon, the annual cost of the capital punishment system in California is $137 million per year, and according to Bacon, is one of the least efficient systems in the nation. If the state of California were to do away with the death penalty completely, however, and instead recommend life in prison, the cost to taxpayers would be $11.5 million per year.
According to Bacon, Florida could save about $51 million per year if the state decided to abolish the death penalty.
The last speaker, Mike McCarron, executive director of the Florida Catholic Conference, provided tips on how to lobby effectively against the death penalty. McCarron provided sample letters to send to state legislators and governors, as well as handouts detailing ways to meet with legislators and aids in person.
According to McCarron, it is important to first know what you want to say. He suggests beginning by making a list of bills or issues of interest, sketching out a speaking outline and then scheduling an appointment.
For more information, visit the TCADP’s Web site at www.tcadp.net, or their Facebook group at “Tallahassee Citizens Against the Death Penalty.”
Verdict: 2 Dubose Brothers Also Guilty
Older Brother Convicted Thursday Of 1st-Degree Murder In 8-Year-Old's Death
POSTED: Friday, February 19, 2010
UPDATED: 6:43 pm EST February 19, 2010
JACKSONVILLE, Fla. -- Less than 24 hours after Rasheem Dubose was found guilty of first-degree murder in the shooting death of 8-year-old Dreshawna Davis, his two younger brothers also learned they were guilty of murder.
Late Friday morning, Judge Page Haddock opened verdicts against Tajuan and Terrell Dubose he ordered sealed more than three weeks earlier when the first trial of Rasheem Dubose ended in a mistrial.
The three brothers were accused of firing 29 shots into the home of Dreshawna's grandmother in July 2006 in an act of retaliation, targeting Dreshawna's uncle, who had robbed and humiliated one of the brothers earlier that day.
While prosecutors maintained that the Dubose brothers fired into the house trying to kill Dreshawna's uncle, Willie Davis Jr., defense attorneys said others also had motive to kill, including a cousin.
In addition to murder, the separate juries also found the three guilty of firing into an occupied dwelling.
The state has said they intend to seek the death penalty against each of them, but immediately after the verdict was read, court remained in session to discuss motions, including one by Tajaun Dubose's attorney asking that he not face the death penalty because he fired the fewest shots. That motion was denied.
Attorneys for both Terrell and Tajuan Dubose asked for separate sentencing hearings, but that request was also denied.
State Attorney Angela Corey's office told Channel 4's Vickie Pierre that no plea agreements were considered in this case because they death penalty should be an option for the punishment of the Dubose brothers.
That's a decision supported by Dreshawna's paternal grandmother, Carlas Washington.
"I feel they should have the death penalty because they took my grandbaby, so they need to go, too," Washington said.
A sentencing hearing for Terrell and Tajuan Dubose is scheduled for March 2. A hearing for Rasheem Dubose is scheduled for March 9.
Shalindell Wilson, the Duboses' mother, said the trial should not have been held in Duval County.
"It was not a fair trial from the beginning," Wilson said. "I mean, these people is from Jacksonville. They from Jacksonville, and they should've had moved this thing somewhere else where nobody else don't know."
POSTED: Friday, February 19, 2010
UPDATED: 6:43 pm EST February 19, 2010
JACKSONVILLE, Fla. -- Less than 24 hours after Rasheem Dubose was found guilty of first-degree murder in the shooting death of 8-year-old Dreshawna Davis, his two younger brothers also learned they were guilty of murder.
Late Friday morning, Judge Page Haddock opened verdicts against Tajuan and Terrell Dubose he ordered sealed more than three weeks earlier when the first trial of Rasheem Dubose ended in a mistrial.
The three brothers were accused of firing 29 shots into the home of Dreshawna's grandmother in July 2006 in an act of retaliation, targeting Dreshawna's uncle, who had robbed and humiliated one of the brothers earlier that day.
While prosecutors maintained that the Dubose brothers fired into the house trying to kill Dreshawna's uncle, Willie Davis Jr., defense attorneys said others also had motive to kill, including a cousin.
In addition to murder, the separate juries also found the three guilty of firing into an occupied dwelling.
The state has said they intend to seek the death penalty against each of them, but immediately after the verdict was read, court remained in session to discuss motions, including one by Tajaun Dubose's attorney asking that he not face the death penalty because he fired the fewest shots. That motion was denied.
Attorneys for both Terrell and Tajuan Dubose asked for separate sentencing hearings, but that request was also denied.
State Attorney Angela Corey's office told Channel 4's Vickie Pierre that no plea agreements were considered in this case because they death penalty should be an option for the punishment of the Dubose brothers.
That's a decision supported by Dreshawna's paternal grandmother, Carlas Washington.
"I feel they should have the death penalty because they took my grandbaby, so they need to go, too," Washington said.
A sentencing hearing for Terrell and Tajuan Dubose is scheduled for March 2. A hearing for Rasheem Dubose is scheduled for March 9.
Shalindell Wilson, the Duboses' mother, said the trial should not have been held in Duval County.
"It was not a fair trial from the beginning," Wilson said. "I mean, these people is from Jacksonville. They from Jacksonville, and they should've had moved this thing somewhere else where nobody else don't know."
Floridians fight against death penalty
By Antonio Rosado
Published: Sunday, February 28, 2010
Updated: Monday, March 1, 2010
Dwarfed by the lectern, Tallahassee resident Agnes Furey smiled as she stepped to the platform in the Leroy Collins Public Library. Furey, 73, gripped the back of the chair as she recounted circumstances surrounding a double-murder that brought her to speak at the “Don’t Kill in My Name” workshop.
Tallahassee Citizens Against the Death Penalty enlisted Furey because 12 years earlier, a man she refused to send to death row murdered her 40-year-old daughter and 6-year-old grandson. The man, Leonard Scovens, who her daughter, Patricia Reed, was trying to help overcome a drug addiction, murdered Reed and her son Christopher. Furey recalled one of the final conversations with her daughter where she warned against aiding Scovens, a 20-something crack cocaine user.
“I had encountered the man years earlier because I have been working in addictions since 1982,” Furey said. “But she told me ‘You always taught me that everybody deserves a chance.”
Within 48 hours of Patricia Reed giving Scovens his chance, he suffocated her with a plastic bag and strangled her son with an electric cord. Initially, Furey confessed, she wanted Scovens to suffer the ultimate punishment for committing the unthinkable acts to her loved ones. However, when her attorney called her days before the trial date and asked her if she wanted to pursue the death penalty, Furey choose to let Scovens live.
She said having another person murdered and the re-victimization families of victims suffer while waiting on a death row prisoner to be executed were the main reasons for her decision.
“Every time there’s another meeting you have to be there, or you’re notified; so it’s in your conscious awareness, and every time you have to do that those feelings come back up again,” Furey said. “I can’t feel like I can be responsible for somebody being killed.”
A moment of silence had to be called so participants could collect themselves after Furey’s bare-all testimony.
Workshops and grassroots initiatives like “Don’t Kill in My Name” are designed by TCADP to inform Floridians about alternatives to the State of Florida carrying out the death penalty.
“The organization has been around since they reinstituted the death penalty in the late 70s,” Shelia Meehan, a former TCADP chairperson, said. “They have a special responsibility to make it known to the legislators and the governors that they don’t believe in this.”
According to the Florida Department of Corrections Web site, capital punishment was reinstated in Florida in 1976. Since then, 69 death sentences have been carried out, with number 70, David Johnston, scheduled to be executed on March 9. However, the confinement of more than 400 inmates on death row in Florida brings Meehan to question the effectiveness of the deterrence.
According to the Death Penalty Information Center Web site, regions of the country with high percentages of executions have murder rates nearly doubling those of states with low death penalty executions, which suggest the death penalty has an inverse deterrence effect.
Additional questions were presented at the workshop by current TCADP president Louise Ritchie, who said she is concerned that systematic errors in Florida’s legal system may be sending innocent people to their death.
“Our legal system is not perfect,” said Ritchie. “People who were completely innocent could be convicted.”
The use of DNA evidence in death row cases has lead to 139 exonerations since the death penalty was reinstated. In many of those cases, determining innocence or error is managed by state appointed attorneys for every death row inmate. While working on death row cases, Meehan discovered a bias in her presupposed views of death row inmates; the public, she said, shares that bias. Meehan said she imagined death row inmates as monsters; however, her first encounter with inmate Richard Cooper changed her mind.
“He was a very gentle person,” Meehan said. “I expected a devil.”
She said Cooper, who has been on death row since he was 21-years-old, talked to her about being beaten with chains by an alcoholic father and often wanting to commit suicide as a child. While working with Cooper and other death row inmates, Meehan said she discovered a trend of abusive pasts and mental instability.
“As I got to know more and more people on death row through my work I have yet to find one person who has not been a victim of severe childhood abuse,” she said. “People care so much about abused children… but what happens when those children grow up, they’re not so cute and loveable anymore, but it’s really the same child.”
Meehan was quick to note that a person who commits a crime deserves to be in jail.
However, she said it is important to realize that inmates on death row are human too, and a people need to show a certain level of compassion.
That consideration is not shown when prisoners are subjected to the cruelty of the electric chair, according to Susan Gage, a former Florida Public Radio reporter who witnessed the 1996 electrocution of John E. Bush.
“The sound is something I remember profoundly,” Gage said, of the humming noise produced as thousands of volts of electricity surged through Bush’s body. Although a muzzle kept Bush from crying out, Gage said, his pain could be seen as his body pressed against the leather strap, and his tightly clenched fists remained turned under, even after he was declared to be dead.
Ron McAndrews, the prison warden who oversaw Bush’s “clean” execution, also supervised the botched execution of Pedro Medina a year later. Medina had flames shooting from the top of his head during his electrocution. McAndrews, in an article for Death Penalty Focus, a nonprofit organization against capital punishment, recalled the horrors of having to allow the execution to continue even though the situation had gone awry.
“The memory of telling the executioner to continue with the killing, despite the malfunctioning electric chair, and being at a point of no-return, plagues me still,” McAndrews wrote.
Ritchie, who helped organize the workshop, also changed her pro-death penalty stance after being exposed to the facts and procedures surrounding the death penalty. She supports life in prison for those convicted of capital crimes.
“I figured that if someone killed someone they didn’t deserve the right to live,” Ritchie said.
“I changed my mind because of the fact that everybody has there humanity and I don’t think anybody has the right to take someone unless life, unless it is in self defense.”
Published: Sunday, February 28, 2010
Updated: Monday, March 1, 2010
Dwarfed by the lectern, Tallahassee resident Agnes Furey smiled as she stepped to the platform in the Leroy Collins Public Library. Furey, 73, gripped the back of the chair as she recounted circumstances surrounding a double-murder that brought her to speak at the “Don’t Kill in My Name” workshop.
Tallahassee Citizens Against the Death Penalty enlisted Furey because 12 years earlier, a man she refused to send to death row murdered her 40-year-old daughter and 6-year-old grandson. The man, Leonard Scovens, who her daughter, Patricia Reed, was trying to help overcome a drug addiction, murdered Reed and her son Christopher. Furey recalled one of the final conversations with her daughter where she warned against aiding Scovens, a 20-something crack cocaine user.
“I had encountered the man years earlier because I have been working in addictions since 1982,” Furey said. “But she told me ‘You always taught me that everybody deserves a chance.”
Within 48 hours of Patricia Reed giving Scovens his chance, he suffocated her with a plastic bag and strangled her son with an electric cord. Initially, Furey confessed, she wanted Scovens to suffer the ultimate punishment for committing the unthinkable acts to her loved ones. However, when her attorney called her days before the trial date and asked her if she wanted to pursue the death penalty, Furey choose to let Scovens live.
She said having another person murdered and the re-victimization families of victims suffer while waiting on a death row prisoner to be executed were the main reasons for her decision.
“Every time there’s another meeting you have to be there, or you’re notified; so it’s in your conscious awareness, and every time you have to do that those feelings come back up again,” Furey said. “I can’t feel like I can be responsible for somebody being killed.”
A moment of silence had to be called so participants could collect themselves after Furey’s bare-all testimony.
Workshops and grassroots initiatives like “Don’t Kill in My Name” are designed by TCADP to inform Floridians about alternatives to the State of Florida carrying out the death penalty.
“The organization has been around since they reinstituted the death penalty in the late 70s,” Shelia Meehan, a former TCADP chairperson, said. “They have a special responsibility to make it known to the legislators and the governors that they don’t believe in this.”
According to the Florida Department of Corrections Web site, capital punishment was reinstated in Florida in 1976. Since then, 69 death sentences have been carried out, with number 70, David Johnston, scheduled to be executed on March 9. However, the confinement of more than 400 inmates on death row in Florida brings Meehan to question the effectiveness of the deterrence.
According to the Death Penalty Information Center Web site, regions of the country with high percentages of executions have murder rates nearly doubling those of states with low death penalty executions, which suggest the death penalty has an inverse deterrence effect.
Additional questions were presented at the workshop by current TCADP president Louise Ritchie, who said she is concerned that systematic errors in Florida’s legal system may be sending innocent people to their death.
“Our legal system is not perfect,” said Ritchie. “People who were completely innocent could be convicted.”
The use of DNA evidence in death row cases has lead to 139 exonerations since the death penalty was reinstated. In many of those cases, determining innocence or error is managed by state appointed attorneys for every death row inmate. While working on death row cases, Meehan discovered a bias in her presupposed views of death row inmates; the public, she said, shares that bias. Meehan said she imagined death row inmates as monsters; however, her first encounter with inmate Richard Cooper changed her mind.
“He was a very gentle person,” Meehan said. “I expected a devil.”
She said Cooper, who has been on death row since he was 21-years-old, talked to her about being beaten with chains by an alcoholic father and often wanting to commit suicide as a child. While working with Cooper and other death row inmates, Meehan said she discovered a trend of abusive pasts and mental instability.
“As I got to know more and more people on death row through my work I have yet to find one person who has not been a victim of severe childhood abuse,” she said. “People care so much about abused children… but what happens when those children grow up, they’re not so cute and loveable anymore, but it’s really the same child.”
Meehan was quick to note that a person who commits a crime deserves to be in jail.
However, she said it is important to realize that inmates on death row are human too, and a people need to show a certain level of compassion.
That consideration is not shown when prisoners are subjected to the cruelty of the electric chair, according to Susan Gage, a former Florida Public Radio reporter who witnessed the 1996 electrocution of John E. Bush.
“The sound is something I remember profoundly,” Gage said, of the humming noise produced as thousands of volts of electricity surged through Bush’s body. Although a muzzle kept Bush from crying out, Gage said, his pain could be seen as his body pressed against the leather strap, and his tightly clenched fists remained turned under, even after he was declared to be dead.
Ron McAndrews, the prison warden who oversaw Bush’s “clean” execution, also supervised the botched execution of Pedro Medina a year later. Medina had flames shooting from the top of his head during his electrocution. McAndrews, in an article for Death Penalty Focus, a nonprofit organization against capital punishment, recalled the horrors of having to allow the execution to continue even though the situation had gone awry.
“The memory of telling the executioner to continue with the killing, despite the malfunctioning electric chair, and being at a point of no-return, plagues me still,” McAndrews wrote.
Ritchie, who helped organize the workshop, also changed her pro-death penalty stance after being exposed to the facts and procedures surrounding the death penalty. She supports life in prison for those convicted of capital crimes.
“I figured that if someone killed someone they didn’t deserve the right to live,” Ritchie said.
“I changed my mind because of the fact that everybody has there humanity and I don’t think anybody has the right to take someone unless life, unless it is in self defense.”
Friday, March 5, 2010
The Florida Supreme Court Stay order in David Johnston
http://david-johnston.us/legal/Filed_03-04-2010_Stay_Order.pdf
Supreme Court of Florida
THURSDAY, MARCH 4,2010
CASE NO.: SCI0-356
Lower Tribunal No(s).: CR83-5401
DAVID EUGENE JOHNSTON vs. STATE OF FLORIDA
CASE NO. SCI0-356
Clerk. Suprelne COUlt
THURSDAY, MARCH 4,2010
CASE NO.: SCI0-356
Lower Tribunal No(s).: CR83-5401
DAVID EUGENE JOHNSTON vs. STATE OF FLORIDA
Appellant(s) Appellee(s)
The execution ofDavid Eugene Johnston, scheduled for 6:00 p.m.,
Tuesday, March 9,2010, is hereby stayed pending further order ofthis Court.
Tuesday, March 9,2010, is hereby stayed pending further order ofthis Court.
David Eugene Johnston, a prisoner under sentence of death and under an
active continuing death warrant signed by Governor Charlie Crist setting the
execution for March 9,2010, appeals the circuit court's order summarily denying
his sixth successive motion for postconviction relief, which was filed pursuant to
Florida Rule of Criminal Procedure 3.851. Because the order concerns
postconvictionrelieffrom a sentence ofdeath, this Court hasjurisdictionunder
article V, section 3(b)(1), ofthe Florida Constitution. Having reviewed the
record in this case, including prior proceedings, we reverse the summary denial
ofJohnston's newly discovered evidence claim relating to mental retardation and
temporarily relinquish jurisdiction to the circuit court for thirty days for an
evidentiary hearing to be held on the issue of whether newly discovered evidence
indicates that Johnston is mentally retarded pursuant to Atkins v. Virginia, 536
active continuing death warrant signed by Governor Charlie Crist setting the
execution for March 9,2010, appeals the circuit court's order summarily denying
his sixth successive motion for postconviction relief, which was filed pursuant to
Florida Rule of Criminal Procedure 3.851. Because the order concerns
postconvictionrelieffrom a sentence ofdeath, this Court hasjurisdictionunder
article V, section 3(b)(1), ofthe Florida Constitution. Having reviewed the
record in this case, including prior proceedings, we reverse the summary denial
ofJohnston's newly discovered evidence claim relating to mental retardation and
temporarily relinquish jurisdiction to the circuit court for thirty days for an
evidentiary hearing to be held on the issue of whether newly discovered evidence
indicates that Johnston is mentally retarded pursuant to Atkins v. Virginia, 536
U.S. 304 (2002), section 921.137, Florida Statutes (2009), and Cherty v. State,
959 So. 2d 702 (Fla. 2007). The Court reserves ruling on the issues raised in this
appeal until jurisdiction returns to this Court after the relinquishment.
959 So. 2d 702 (Fla. 2007). The Court reserves ruling on the issues raised in this
appeal until jurisdiction returns to this Court after the relinquishment.
The parties and the trial court shall proceed in an expedited manner, and
an evidentiary hearing on Johnston's Motion to Vacate Judgments of Conviction
and Sentences with Special Request for Leave to Amend shall be held and an
order entered within thirty days ofthis order.
an evidentiary hearing on Johnston's Motion to Vacate Judgments of Conviction
and Sentences with Special Request for Leave to Amend shall be held and an
order entered within thirty days ofthis order.
The court reporters shall have ten days after completion ofthe above
proceedings in which to file any transcripts with the trial court clerk, and the trial
court clerk shall have five days after receipt ofthe transcripts in which to file a
record ofthe entire relinquishment proceeding with this Court. Per this Court's
proceedings in which to file any transcripts with the trial court clerk, and the trial
court clerk shall have five days after receipt ofthe transcripts in which to file a
record ofthe entire relinquishment proceeding with this Court. Per this Court's
CASE NO. SCI0-356
PAGE 2
Administrative Order In Re: Mandatory Submission ofElectronic Copies of
Documents, AOSC04-84, dated September 13,2004, the court reporters are
directed to transmit a copy ofany transcripts, in addition to paper copies, in an
electronic format as required by the provisions ofthat order. The electronic
version for this Court shall be submitted to the following e-mail address:
e-file@flcourts.org.
Documents, AOSC04-84, dated September 13,2004, the court reporters are
directed to transmit a copy ofany transcripts, in addition to paper copies, in an
electronic format as required by the provisions ofthat order. The electronic
version for this Court shall be submitted to the following e-mail address:
e-file@flcourts.org.
Counsel for the parties are hereby directed to file status reports with this
Court every thirty days as to the progress ofthe relinquishment proceeding.
Court every thirty days as to the progress ofthe relinquishment proceeding.
*THE COVERSHEET SHALL REFLECT "SUPPLEMENTAL RECORD VOLUME
1, ETC." AND PAGE NUMBERING SHOULD START WITH
PAGE 1 AND RUN CONSECUTIVELY.
1, ETC." AND PAGE NUMBERING SHOULD START WITH
PAGE 1 AND RUN CONSECUTIVELY.
QUINCE, C.J., and PARIENTE, LEWIS, LABARGA, and PERRY, JJ., concur.
CANADY and POLSTON, JJ., dissent.
CANADY and POLSTON, JJ., dissent.
A True Copy
Test:
Test:
~lf'£UI
Clerk. Suprelne COUlt
Seal of the Florida Supreme Court
tc
Served:
tc
Served:
JEFFREY L. ASHTON
D. TODD DOSS
KENNETH S. NUNNELLEY
HON. BELVIN PERRY, JR., CHIEF JUDGE
HON. LYDIA GARDNER, CLERK
HON. CHARLIE CRIST, GOVERNOR
HON. WALTERA.MCNEIL, WARDEN
KENNETH S. NUNNELLEY
HON. BELVIN PERRY, JR., CHIEF JUDGE
HON. LYDIA GARDNER, CLERK
HON. CHARLIE CRIST, GOVERNOR
HON. WALTERA.MCNEIL, WARDEN