Sunday, June 27, 2010

Robert Trease innocence claim overlooked

PARIENTE, J., dissenting.

I dissent because the procedural posture of the case and the issues raised in
the pending appeal about Trease.s possible innocence trump our interests in
finality. By not allowing Trease to proceed with his appeal of the denial of
postconviction relief, we run the risk of Trease being executed without this Court
having had the opportunity to review his postconviction claims of innocence.7

7. These issues were raised in his postconviction proceedings as claims of
ineffective assistance of counsel, newly discovered evidence, and violations of
Brady v. Maryland, 373 U.S. 83 (1963).

While Trease has changed his mind regarding whether to proceed with his
postconviction proceedings (which his counsel attributes to organic brain damage

and trauma), Trease has also consistently maintained his innocence. The appeal
from the denial of his postconviction motion, which is still pending before this
Court, raises significant issues touching upon his guilt. These issues include
questions on the now-discredited compositional bullet lead analysis,8 which was
used by the testifying FBI expert to match bullet fragments found at the crime
scene to a bullet removed from a pistol in Trease.s possession. The State used this
now-debunked science to corroborate testimony of Trease.s codefendant, who
testified that she witnessed Trease murder the victim. Because there was no
physical evidence tying Trease to the crime, her “testimony was critical at trial.”
Trease, 768 So. 2d at 1050. Trease also claims that newly discovered evidence
establishes that she admitted to murdering the victim.

8. In 2005, after Trease.s conviction, the FBI discontinued the use of bullet
lead analysis after it concluded that there was an “inability of scientists and
manufacturers to definitively evaluate the significance of an association between
bullets made in the course of a bullet lead examination.” Press Release, Fed.
Bureau of Investigation, FBI Laboratory to Increase Outreach in Bullet Lead Cases
(Nov. 17, 2007), available at

The question is whether these claims of innocence raised in Trease.s first
post-conviction motion should outweigh this Court.s interests in the finality of the
waiver and legitimate concerns about a defendant who continually changes his
mind. In James v. State, 974 So. 2d 365, 368 (Fla. 2008), a decision in which I
concurred, we were concerned that “a mere change of mind” not in itself constitute

a sufficient basis for setting aside a previous waiver. We emphasized that the
procedures set forth in Durocher9 regarding the ability of a death-sentenced
defendant to waive further attacks on his conviction and penalty were mandated so
that the defendant would “fully understand the consequences and finality attached
to a waiver” while also “respecting his wishes to determine his fate.” Id.
However, I consider James to be distinguishable from this case in two ways.
First, in James, the defendant.s change of mind requesting reinstatement of counsel
and resumption of postconviction proceedings occurred over two years after he
voluntarily dismissed his postconviction proceedings. Id. at 366. In this case,
Trease.s request to resume the appeal of his postconviction proceedings occurred
while the appeal of his dismissal of counsel and waiver of postconviction
proceedings were still pending in this Court. Second, in James, we were reviewing
solely the trial court.s decision to deny reappointment of counsel and reinstatement
of postconviction proceedings. Here, Trease actually proceeded with his initial
postconviction motion while represented by counsel, and the trial court denied
relief. That order of denial is on appeal in this Court, and an initial brief on the
merits has been filed.

9. Durocher v. Singletary, 623 So. 2d 482 (Fla. 1993).

We have recognized that “death is different.” See, e.g., State v. Davis, 872
So. 2d 250, 254-55 (Fla. 2004). The chance that there may be issues regarding

Trease.s guilt and a possible claim of innocence should weigh in favor of our
allowing this appeal to proceed to conclusion on the merits. We should err on the
side of caution to avoid the chance of Trease being executed with outstanding
unresolved questions about his guilt and possible innocence.
For the above reasons, I would allow the appeal to proceed on the merits.

No comments: