The transcript of the oral arguments in David Johnston

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David Eugene Johnston v. State of Florida

SC65525 SC09-839


>> THE NEXT CASE ON THIS COURT
DOCKET IS
JOHNSTON VERSUS STATE.


>> GOOD MORNING, MAY IT
PLEASE THE COURT AND
COUNSEL, TODD DALTON ON
BEHALF OF DAVID JOHNSTON, I
BEGIN MY ARGUMENT BY
FOCUSING ON THE DENIAL OF
DNA TESTING THAT WAS
SUBMITTED IN THE CIRCUIT
COURT
THE JUDGE WADDLES HAD
ORDERED AND FOUND THAT THE
EVIDENCE THAT WE HAD
REQUESTED TO BE TESTED WOULD
NOT RESULT IN AN EXONERATION
OF MR. JOHNSTON
>> WAS THERE EVER A
DETERMINATION SPECIFICALLY
AS TO THE FINGERNAIL
SCRAPINGS, WHETHER THERE WAS
-- WHETHER THE EVIDENCE
STILL EXISTED AND WHETHER
THERE WAS SUFFICIENT AMOUNT
TO ALLOW FOR DNA TESTING?
>> JUDGE WADDLES DID NOT --
WADDLES DID NOT MAKE THAT
SPECIFIC FINDING
I HAD COMMUNICATED TO JUDGE
WADDLES I HAD BEEN TO THE
ORLANDO POLICE DEPARTMENT AT
THE HEARING, AND THERE WERE
IN FACT FINGERNAIL CLIPPINGS
THERE
AND I HAVE WENT THROUGH THE
EVIDENCE WITH THE ORLANDO
POLICE DEPARTMENT
REPRESENTATIVES TO DETERMINE
WHETHER OR NOT THIS EVIDENCE
WAS IN FACT THERE
>> THAT EVIDENCE HAS NEVER
BEEN TESTED?
BY ANYBODY?
>> THERE'S NO INDICATION
WHATSOEVER THAT IT'S BEEN
TESTED
AND THE FORENSICS SEROLOGIST
TESTIFIED THAT THERE WAS
BLOOD ON THERE, NOT ENOUGH
FOR SEROLOGY TESTING, DNA,
THERE WASN'T ENOUGH FOR
TESTING, WE'RE TALKING ABOUT
1983, 1984 AND THE
INDICATIONS WAS THERE WAS
FLESH UNDERNEATH THOSE
FINGERNAILS
>> THIS CASE IS OVER 25
YEARS OLD, CORRECT?
>>
>> AND THIS EVIDENCE HAS
BEEN AROUND SINCE THAT TIME?
THAT'S WHAT IS TROUBLING TO
ME, IS WE'VE HAD MULTIPLE
CASES INVOLVING THIS
DEFENDANT, OF COURSE, WE'VE
HAD POST CONVICTION, WE'VE
HAD HABEAS, KEYS GONE TO
FEDERAL COURT, AND YET NO
ONE EVER ASKED TO HAVE
THIS EVIDENCE TESTED BEFORE
WE HEAR, YOU KNOW, 25 YEARS
LATER ON THE EVE OF
EXECUTION AND WE FINALLY GET
A MOTION TO TEST THIS
EVIDENCE, AND YOU KNOW, IT
SEEMS TO ME THAT AS SOON AS
ANY DEFENDANT HAS, IT CAN
WAIT UNTIL THE LAST MOMENT
BEFORE AN EXECUTION IS
SUPPOSED TO TAKE PLACE AND
ASK TO HAVE THIS KIND OF
EVIDENCE TESTED
>> I CAN'T SPEAK TO ANY OF
THE PRIOR COUNSEL
I WAS APPOINTED ON
APRIL 24TH, ONCE THE WARRANT
HAD BEEN SIGNED AND I FILED
IT 12 DAYS LATER AFTER
REVIEWING THE RECORD
>> BUT YOU UNDERSTAND -- WE
UNDERSTAND YOU'RE GOING TO
DO EVERYTHING YOU CAN TO
POSTPONE THE EXECUTION, BUT
GOING BACK, AND I UNDERSTAND
THAT THERE'S NOT A SPECIFIC
TIME BAR FOR THE DNA MOTION,
BUT IN THIS CASE, AND
LOOKING BACK ON ALL THE
PRIOR POST-CONVICTION
PROCEEDINGS, ACTUAL
INNOCENCE DOES NOT LOOK LIKE
THERE WAS EVER THE THRUST OF
THIS PARTICULAR CASE
AND I CAN CERTAINLY
UNDERSTAND WHY, BECAUSE HOW
DO YOU GET AROUND THE
FOOTPRINT OF THE KITCHEN
WINDOW, THE SCRATCH MARKS ON
HIS FACE, AS LATE AS 2:00
A.M., HE DIDN'T HAVE IT, THE
BLOOD-COVERED WATCH FOUND ON
THE BATHROOM COUNTERTOP, THE
BUTTERFLY PENDANT THAT WAS
THE DEFENDANT'S ENTANGLED IN
THE VICTIM'S HAIR, HIS
ADMITTED POSSESSION OF ITEMS
FROM HER HOME, SILVER AWARE,
CANDLE -- SILVERWARE,
CANDLESTICKS, TEA POUT AND
CREATING THESE BOGUS
CONFESSIONS FROM ANOTHER
PERSON THAT HE FABRICATED
I MEAN, THIS SEEMS TO BE A
CASE OF OVERWHELMING GUILT
NOW
I MEAN, WHETHER THIS IS A
MENTALLY ILL DEFENDANT THAT
SOME TIME BACK THAT SHOULD
HAVE BEEN DEVELOPED FURTHER,
AS FAR AS WHAT IS GOING
THROUGH HIS MIND AT THE TIME
OF THE CRIME, THAT'S ANOTHER
STORY
BUT IT DOESN'T SEEM TO ME,
IN TERMS OF THE ACTUAL
INNOCENCE, THAT THERE WAS
ANYTHING THAT THE DEFENSE
LAWYER THOUGHT HE OR SHE
SHOULD BE PURSUING GIVEN ALL
OF THIS OTHER OVERWHELMING
EVIDENCE
>> WELL, WE ARE TALKING
ABOUT A PROFOUNDLY MENTALLY
ILL INDIVIDUAL THAT'S BEEN
THE SUBJECT OF MANY
COMPETENCY HEARINGS WITH
VOLUMINOUS MEDICAL RECORDS
SHOWING HE HAD BEEN FOUND
INCOMPETENT IN KANSAS AND
HAD MANY PSYCHIATRIC
>> AND I'M PUTTING ASIDE
WHETHER THIS IS A MENTALLY
ILL DEFENDANT
I KNOW THAT'S NONE OF YOUR
POINT
BUT AS FAR AS THE ACTUAL
INNOCENCE OR THIS
PROBABILITY OF AN ACQUITTAL
OR THE THRESHOLD FOR THE
3.853, A REASONABLE
PROBABILITY OF AN ACQUITTAL,
NOTHING HAS EVER -- THERE'S
NOTHING THAT TAKES AWAY FROM
ALL OF THOSE ITEMS THAT I'VE
JUST MENTIONED THAT JUST
POINT TO THAT THIS DEFENDANT
KILLED THIS ELDERLY VICTIM
>> I THINK IT DOES, AND
WHERE I WAS GOING WITH THE
FACT OF BEING MENTALLY ILL,
I THINK WE CAN DISCOUNT MUCH
OF WHAT MR. JOHNSON HAS SAID
BECAUSE IT IS THE RAMBLING
OF A MENTALLY ILL MAN
WHEN YOU LOOK AT THE
PENDANT, THE TESTIMONY
REGARDING THE PENDANT, WE
HAD ACTUALLY CITED IN OUR
REPLY BRIEF AS TO THERE WAS
CONFLICTING TESTIMONY ON
THAT WHERE THE GIRLFRIEND
INITIALLY IDENTIFIES IT AS
THE BUTTERFLY PENDANT, BUT
LATER ON, SHE SAYS THAT NO,
HE HAD A HEART-SHAPED
PENDANT ON AND DARREN
MARTIN, THAT WAS THE ROOMMATE
OF MR. JOHNSON, ALSO
TESTIFIED HE HAD A
HEART-SHAPED PENDANT
SO I DON'T THINK THAT THAT'S
AS CONCLUSIVE AS WHAT THE
CIRCUIT COURT HAD MADE IT
OUT TO BE
WE'VE ALSO ASKED TO BE ABLE
TO TEST THE FOOTPRINT
EVIDENCE THAT'S OUT THERE
THAT HAS NEVER BEEN TESTED
THAT BASICALLY WAS JUST SAID
WELL IT APPEARS TO BE THE
TREADWARE WHICH TIES
IN WITH OUR FORENSIC TESTING
MOTION AND THE NATIONAL
ACADEMY OF SCIENCE REPORT
THAT HAS SAID WE NEED
STRICTER STANDARDS, WE NEED
TO HAVE MORE RELIABILITY IN
THIS TESTING
WHEN YOU LOOK AT THE
ARGUMENT I HAD CITED FROM
THE STATE, THEY'VE NEVER
INDICATED THAT THERE WAS
ANYONE ELSE THAT WAS
INVOLVED OTHER THAN
MR. JOHNSTON AND THAT HE WAS
THE ONLY ONE IN THAT HOUSE
MR. JOHNSTON, GRANTED,
THERE'S MUCH INCONSISTENCY
IN WHAT HE SAID, WE CAN
GLEAN THAT HIS STORY IS HE
COMES IN THE HOUSE, WHOEVER
THE ATTACKER AND KILLER WAS
HAD ALREADY PERPETRATED THE
CRIME AND LEFT, SO WE HAVE
--
>> LET ME ASK YOU THIS:
WHAT ABOUT THE BLOOD ON THE
DEFENDANT'S PERSON?
HE'S GOT A SUBSTANTIAL
AMOUNT OF BLOOD ON HIM,
RIGHT?
>> THAT IS CORRECT
>> NOW, IN ALL THESE
DIFFERENT STORIES, HE'S TOLD
-- THAT HE'S TOLD, DID HE
EVER GIVE ANY INDICATION
THAT HE HAD CONTACT WITH
THIS THIRD PARTY
PERPETRATOR?
>> NOT TO MY RECOLLECTION
>> WHAT HE SAID IS HE SAW
SOMEBODY
HE NEVER INDICATED THEY HAD
SOME KIND OF COLLISION THAT
WOULD HAVE RESULTED IN THE
TRANSFER OF BLOOD FROM THIS
THIRD PARTY TO HIM, AND SO
THE BLOOD, WE CAN GLEAN FROM
THAT, WOULD BE TOTALLY --
TOTALLY INCONSISTENT
IF YOU'RE LOOKING FOR SOME
EVIDENCE THERE, IT WAS -- IT
WOULD BE TOTALLY
INCONSISTENT WITH ANYTHING
THE DEFENDANT EVER SAID,
RIGHT?
>> I DON'T THINK SO
HE HAD TESTIFIED THAT HE
COMES IN AT ONE POINT -- OR
THAT HE MAKES A STATEMENT,
HE NEVER TESTIFIED, BUT HE
MAKES A STATEMENT THAT HE
COMES IN THE ROOM AND
APPROACHES TO WHERE THE
VICTIM IS AND LEANS DOWN AND
GRABS A HOLD OF HER ON THE
BED
WE DON'T KNOW IF THERE'S ANY
MIX OF THIS OTHER
PERPETRATOR WITH HIS BLOOD
OUT SOMEWHERE THERE BECAUSE
THE INDICATION FROM HER
FINGERNAILS IS SHE STRUGGLED
WITH WHOEVER THE ATTACKER
WAS, THUS THE BLOOD AND THE
FLESH ON THERE, AND I THINK
OUT OF ALL THE THINGS WE'VE
REQUESTED TESTING THAT
THAT'S THE MOST DEFINITIVE,
BECAUSE WHEN YOU LOOK AT THE
CLOSING ARGUMENT, THE
CLOSING ARGUMENT THAT THE
PROSECUTOR AT THE TIME MAKES
IS THIS VICTIM IS SCRATCHING
AND CLAWING FOR HER LIFE ON
HER BED AND THAT'S WHERE THE
SCRATCH ON MR. JOHNSTON'S
FACE HAD COME FROM, AS
OPPOSED TO HIS STORY THAT HE
HAD IN FACT PURCHASED A
PUPPY THAT DAY AND WHEN HE
WAS MAKING WITH THE PUPPY
THAT IT HAD SCRATCHED HIM
THERE IS EVIDENCE TO
CORROBORATE THE FACT THAT HE
DID BUY A PUPPY THAT DAY,
THERE IS OTHER TESTIMONY TO
SAY THAT WELL, I DIDN'T SEE
A SCRATCH ON HIM WHENEVER HE
LEFT AT 12:00 WITH THE TIME
AND DEATH BEING SOMEWHERE
BETWEEN 3:00 AND 4:00, BEST
WE CAN TELL
THE EVIDENCE OF THOSE
FINGERNAILS, THOUGH, I
THINK, IS CRITICAL HERE
IT WASN'T AVAILABLE BACK IN
1983-'84, WE HAD THE SIMPLE
SEROLOGY TESTING THAT WAS
NOT NEAR AS ACCURATE AS WE
HAVE NOW, PARTICULARLY THE
MITOCHONDRIAL TESTING OR THE
REPEAT TESTING WE CAN NOW DO
THE FURTHER CERTAIN AND I
CITE THUNDERSTORM IN MY
BRIEF IS THE CASE THAT'S
CURRENTLY PENDING BEFORE THE
U.S. SUPREME COURT,
OSBOURNE, WHERE IT DEALS
WITH ACCESS TO DNA EVIDENCE
AND WHETHER OR NOT DENYING
ACCESS TO THE DNA EVIDENCE
IS A DUE PROCESS VIOLATION
IN AND OF ITSELF, AND I
THINK THAT MR. JOHNSTON HAS
A RIGHT HERE AS TO ACCESSING
THIS EVIDENCE AND HAVING IT
TESTED, AND THAT WHEN WE
LOOK AT IT IN THE SCHEME OF
THINGS, THAT THE TESTING
WON'T TAKE THAT LONG
IT'S EITHER GOING TO BE
SHOWING THAT SOMEONE ELSE'S
DNA IS THERE OR IT'S GOING
TO BE SHOWING THAT HIS DNA
IS THERE, OR POSSIBLY
INCONCLUSIVE
AT THAT POINT, IT'S MUCH
MORE DEFINITIVE AS FAR AS
GOING FORWARD WITH THE
EXECUTION OF MR. JOHNSTON
HE'S COMPLIED WITH EVERY
ASPECT OF 3.853, WITH NO
TIME LIMITATION BEING THERE
I UNDERSTAND THIS COURT'S
CONCERN, BUT THERE'S NO TIME
LIMITATION THERE, AND
MR. JOHNSTON HAS LAID OUT
EACH AND EVERY ASPECT OF
3.853, THE ONLY THING THAT
JUDGE WADDLES
IS HUNG ON IS THIS
EVIDENCE THAT WOULD
EXONERATE HIM OR NOT
NOW, WHEN I DISCUSSED THE
FIRST BORN CASE, I USE THAT AS
A PREDICATE TO ESTABLISH
THAT WE'RE ALSO ENTITLED TO
THIS FORENSIC EVIDENCE
THAT'S THERE, SUCH AS THE
FOOTPRINT
I HAVE REPRESENTED TO JUDGE
WADDLES THERE IN THE TRIAL
COURT THAT I'VE PERSONALLY
SEEN THE CASTS, THE CASTS
ARE STILL THERE, THE
FOOTPRINT EVIDENCE IS STILL
THERE SO THAT WE CAN HAVE
SOMEONE DO A MORE RIGOROUS
EXAMINATION THAN WHAT WAS
REVEALED IN THE TRIAL
TRANSCRIPT, WHICH BASICALLY
THEY JUST SAID IT APPEARED
TO BE SO
THEY DIDN'T REALLY GO
THROUGH A WHOLE LIST OF
QUALIFICATIONS
>> NOW, ON SOMETHING THAT'S
NOT BEING DNA TESTED, AND
YOU'VE SAID THE FOOTPRINT
HAS -- THE CAST HAS BEEN
THERE, YOU DON'T HAVE A
FREESTANDING RIGHT JUST TO
HAVE ANYTHING TESTED
I MEAN, THE GOVERNOR CAN SAY
YES, I CAN GET IT TESTED BUT
IT CAN'T -- IF IT CAN'T BE
DNA TESTS, WHERE IS THE
AUTHORITY THIS COURT HAS IN
-- LET'S SAY LET'S ORDER
TESTING OF ALL OTHER ITEMS?
>> I HAD CITED TO THE
OSBOURNE CASE WHERE THE
ARGUMENT WAS MADE --
>> THE U.S. SUPREME COURT
>> IT'S BEFORE THE U.S.
SUPREME COURT, HOWEVER, THE
UNITED STATES NINTH CIRCUIT
OF APPEALS HAD INDICATED IT
DIDN'T LIMIT THEIR RULING TO
DNA EVIDENCE
IT SAID BIOLOGICAL EVIDENCE
I THINK THAT THAT'S MORE --
>> BUT YOU WOULD AGREE THE
STATUTE WHICH DOESN'T HAVE A
TIME LIMIT IS LIMITED TO DNA
EVIDENCE?
>> ABSOLUTELY 3.853 IS
LIMITED TO DNA EVIDENCE, AND
THAT'S WHY JUDGE PARIENTE,
BROUGHT IT IN TWO MOTIONS,
BECAUSE I UNDERSTAND WE'RE
TALKING ABOUT TWO SEPARATE
MECHANISMS, TWO SEPARATE --
>> WAS THE FOOTPRINT EVER
CHALLENGED?
I KNOW THAT THERE HAVE BEEN
CASE THAT IS TALK ABOUT A
LOT OF THE SCIENCE THAT IS
USED
THE FOOTPRINT ANALYSIS HAS
COME UNDER FIRE AS ONE OF
THE AREAS THAT REALLY ISN'T
AS ACCURATE AS WE MIGHT HAVE
FIRST THOUGHT, BECAUSE AS
JUDGE QUINCE SAID, THERE
HAVE BEEN CONVICTION PHASE A
COUPLE OF DECADES AND I
DON'T RECALL THERE BEING A
CHALLENGE, REFRESH MY
RECOLLECTION, TO THE
FOOTPRINT EVIDENCE
>> I DON'T RECALL THAT THAT
HAD EVER BEEN CHALLENGED
HAD IT BEEN CHALLENGED, I
WOULD HAVE PRESENTED IT TO
THE COURT WHATEVER THE
RESULTS WITH WERE AND I
CAN'T ANSWER THE QUESTION AS
TO WHY IT HASN'T BEEN
>> I THINK POST-CONVICTION,
IT WASN'T ARGUED THAT NOW WE
HAVE A FOOTPRINT EXPERT THAT
CAN SHOW THIS MIGHT NOT BE
OR WASN'T MR. JOHNSTON'S
FOOTPRINT
>> I HAVE NO INDICATION --
>> I MEAN, I UNDERSTAND, YOU
CAME IN APRIL, AND YOU ARE
CERTAINLY, HAVE DONE A YEOMAN'S
JOB ON MR. JOHNSON'S HALF BUT
THROWING ALL OF THIS OUT AFTER
25 YEARS, IS -- YOU KNOW, IS
JUST -- TURNS THE PROCESS ON ITS
HEAD.
AND THE TIME LIMITS THAT ARE
IMPORTANT FOR, YOU KNOW, IN THE
SCHEME OF THE WAY DEATH CASES GO
AND I THINK -- I DON'T THINK ANY
AUTHORITY, FOR TO YOU ORDER
ANYTHING OTHER THAN THAT -- THE
DNA TESTING ASSUMING, THERE IS A
THRESHOLD ON THAT.
>> I THINK THERE IS A DUE
PROCESS RIGHT AND THAT IS WHY I
SPECIFICALLY LINKED IT TO
OSBORNE AND ALSO, IT DOVETAILS
INTO THE NEWLY DISCOVER CLAIM
REGARDING THE NATIONAL ACADEMY
OF SCIENCES REPORT THAT CAME OUT
AND CALLS INTO QUESTION, MUCH OF
WHAT HAS BEEN DONE, IN THESE
OTHER FORENSIC SCIENCE AREAS, AS
ILLUMINATED BY DNA TESTING --
>> HAVEN'T WE REALLY CROSSED THE
BRIDGE WITH REGARD TO STUDIES
AND THOSE KINDS OF THINGS WITH
REGARD TO WHETHER THESE THINGS
ARE REALLY NEWLY DISCOVERED
EVIDENCE.
AS OPPOSED TO FACTUAL MATTERS
DEALING WITH THE CASE, HAVEN'T
WE ALREADY CROSSED THAT...
>> MY UNDERSTANDING OF THE
COURT'S CASE LAW REGARDING THAT
IS THAT IT NEEDS TO BE TIED
SPECIFICALLY TO A PARTICULAR
CASE, AND I AM AWARE OF RUTH
FORD AND THAT -- THE WHOLE LINE
OF CASE THAT'S DEALT WITH THE
ABC REPORT WHICH I SUBMITTED A
MUCH MORE GENERAL REPORT THAN
WHAT WE HAD WITH THE NATIONAL
ACADEMY OF SCIENCES AND IS MORE
IN LINE WITH WHAT I CITED, WHERE
THE COURT RELINQUISHED
JURISDICTION SO TREPAL COULD
HAVE AN EVIDENTIARY HEARING AND
THE ABILITY TO LINK THE FBI
REPORT REGARDING FRAUD IN THAT
LAB TO HIS CASE, THE COURT NEVER
INDICATED THIS WASN'T
NECESSARILY NEWLY DISCOVERED
EVIDENCE, IN AT THE TREPAL CASE
AND IT SAID IT WASN'T
ESTABLISHED THAT IT ROSE TO THE
LEVEL OF WARNING RELIEF FOR
TREPAL I DIDN'T TAKE THAT AS A
CATEGORICAL EXEMPTION AND I
SPECIFICALLY -- DIDN'T LINK IT
SPECIFICALLY TO THE CASE AND THE
SPECIFIC PIECES OF EVIDENCE THAT
WERE ADMITTED INTO
MR. JOHNSTON'S CASE SO THAT THIS
COURT COULD SEE, THE VALUE OF
THAT.
AND I THINK, TOO, WHEN WE ARE
TALKING ABOUT THAT KIND OF
EVIDENCE AND TALKING ABOUT
EXONERATION THERE WERE 14 PRINTS
THAT WERE LIFTED WITHIN THE
VICTIM'S HOME.
FOR YOU WERE USABLE.
AND WERE ACTUALLY COMPARED TO
MR. JOHNSTON TO THE VICTIM AND
TO KEVIN WILLIAMS, THE SUBJECT
OF ALERT SUPPOSEDLY WRITTEN BY
HIM AND LATER DEBUNKED AND IT
DIDN'T MATCH THAT AND WHEN WE
COME AND ASK ABOUT EXONERATION
AND THE POSSIBILITY THAT THERE
IS SOMEONE ELSE'S FLESH AND
SOMEONE ELSE'S BLOOD UNDER
THERE, AT A REASONABLE
PROBABILITY THERE IS SOMETHING
ELSE THERE AND IT IS HEIGHTENED
BY MR. JOHNSTON'S MENTAL ILLNESS
THAT HE IS -- RAMBLING OF A
PROFOUNDLY MENTALLY ILL MAN AND
I THINK IT IS BEYOND DISPUTE
HE'S MENTALLY ILL AND HEIGHTNESS
THE NEED TO CORROBORATE WHAT
HE'S SAYING AND SIT IN CONTRAST
TO WHAT THE PROSECUTOR ARGUED IN
CLOSING ARGUMENT I CITED IN MY
BRIEF.
>> YOU ARE WELL INTO YOUR
REBUTTAL IF YOU WANT TO SAVE
SOME TIME.
>> THANK YOU VERY MUCH.
>> MR. NUNNELLEY.
>> I REPRESENT THE STATE OF
FLORIDA.
LET ME START --
>> COULD YOU START IN THE PART?
HOW LONG DID MR. JOHNSTON
EFFECTIVELY NOT HAVE A LAWYER
BECAUSE THE PRIOR LAWYER OR THE
CTCC HAD MOVED FOR WITHDRAWAL,
WHAT IS THE TIMEFRAME?
>> IF I... I'M MATH CHALLENGED
THIS MORNING, JUSTICE PARIENTE.
MAYBE A YEAR.
I THINK --
NO, NO, I'M SORRY, NOVEMBER OF
LAST YEAR, I BELIEVE, IS WHEN
THE MOTION TO WITHDRAW WAS
FILED.
>> AND THEY -- WHAT WAS THE
BASIS FOR THEIR MOVING FOR
WITHDRAWAL.
>> THEY WERE TOO BUSY.
>> THIS IS THE CTRC MENTAL.
>> YES MA'AM THE BASIS OF THEIR
MOTION TO WITHDRAW WAS THEY WERE
TOO BUSY TO DO THE CASE.
>> AND WHEN IT WAS SIGNED, THE
JUDGE HEARD IT AND DECIDED THEY
WEREN'T TOO BUSY AND APPOINTED
MR. DODD AS COUNSEL.
>> WELL, JUDGE WALLACE NEVER --
HE LET CCRC OUT ON THE POINT OF
MR. DOS AND DIDN'T MAKE FINDINGS
ON WHETHER THEY WERE TOO BUSY,
THEY WERE THERE AND SAID WE
CAN'T DO IT WEEKS HAVE THE FILES
BOX U. DOWNSTAIRS AND THE JUDGE
SAID, MR. DOSS YOU WOULDN'T TAKE
THE -- WANT TO TAKE THE CASE AND
TO HIS CREDIT, HE SAID, YES,
SIR, I AM.
>> BUT AT THE POINT THEY SAID
THEY WERE TOO BUSY WAS THERE
ANYTHING GOING ON IN MORE
JOHNSTON'S CASE?
>> NO.
>> HAVE THEY JUST...
>> [INAUDIBLE].
>> YOU GOT THE FREE BE I GUESS.
>> THAT'S OKAY.
>> I'M I MEAN, I'M CONCERNED
BECAUSE WARRANTS ARE GETTING
SIGNED AND THIS ENDED UP
HAPPENING, THIS IS -- IT IS
DETRIMENTAL TO THE
ADMINISTRATION OF JUSTICE IF YOU
HAVE A NEW LAWYER JUMPING IN
LESS THAN 30 DAYS BEFORE AN
EXECUTION AND NOW HAVING TO LOOK
AT THE WHO'LL THING AND NOW,
MAYBE CCR MENTAL SHOULD HAVE
BEEN LOOKING AT THE ISSUE, IT
SEEMS LIKE THE FINGER IS NOW...
[INAUDIBLE] CAN YOU HELP ME
ANYBODY MORE ON WHETHER THINGS
STARTED TO HAPPEN, IN
MR. JOHNSTON'S CASE AND CCRC
MENTAL SAYS WE ARE TOO BUSY OR
JUST FILED IT IN MR. JOHNSTON'S
CASE AND NO OTHER CASE?
WE CAN'T REPRESENT THE DEFENDANT
BECAUSE WE ARE TOO BUSY.
>> LET ME ANSWER THAT IN THE
WAY:
OKAY.
THE LAST PROCEEDING -- LAST RUN
THROUGH THIS COURT WAS THE
MENTAL RETARDATION PROCEEDING IN
2006.
WHEN MR. JOHNSTON WAS
REPRESENTED BY ED MILLS.
MR. MILLS HANDLED THAT --
>> AND WHO WAS HE.
>> HE WAS REGISTRY COUNSEL
APPOINTED BY JUDGE WALLACE WHO
REPRESENTS MR. JOHNSTON AS I
RECALL AND THIS IS A LOT OF
DUSTY FILES, JUSTICE PARIENTE
BUT BOTTOM LINE, MR. MILLS WAS
APPOINTED, TRIED THE MENTAL
RETARDATION HEARING, AND STAYED
IN THE CASE, FOR A PERIOD OF
TIME, AFTER THAT, I DON'T
HONESTLY REMEMBER IF HE SOUGHT
CERTIFICATE REVIEW OR NOT, I
DON'T KNOW, DOESN'T MATTER,
ULTIMATELY, MR. MILLS SAID --
APPARENTLY REACHED THE
CONCLUSION THERE IS NOTHING MORE
I CAN DO AND FILED THE MOTION TO
WITHDRAW WHICH WAS GRANTED.
>> BUT UNDER THE SYSTEM HE'S
SUPPOSED TO STAY IN UNTIL THE
EXECUTION.
ISN'T THAT -- I MEAN, WE NEED --
THESE THINGS, BECAUSE WE NEED TO
KNOW THERE HAS BEEN -- I THINK
THE ATTORNEY GENERAL'S OFFICE
NEEDS TO MAKE SURE THE
GOVERNOR'S OFFICE NEEDS TO KNOW
THE SYSTEM MAY START TO BE
BREAKING DOWN, BECAUSE EITHER
THERE ARE NOT EFFICIENT REGISTRY
COUNSEL FOR CCRC MENTAL OR STAFF
ARE TOO BUSY, WE CAN'T THEN --
IT PUTS THIS COURT IN A POSITION
OF INSTEAD OF MR. JOHNSTON
HAVING ONE PERSON REPRESENTING
HIM OVER THE LASTING, YOU KNOW,
DECADE, HE'S NOW HAVING SOMEBODY
COMING IN FOR THIS AND SOMEONE
COMING IN FOR THAT, AND MAYBE
THAT IS THE REASON WHY NOBODY
LOOKED AT THE WHOLE CASE TO SAY,
THERE IS AN ISSUE THAT NEEDS TO
BE EXPLORED.
>> AFTER MR. MILLS WAS ALLOWED
OUT, ANOTHER REGISTRY ATTORNEYS
WAS PROMPTLY APPOINTED, A
MR. SOLIS I BELIEVE IT IS.
SOLIS, I THINK.
AND HE APPOINTED TO THE CASE, BY
JUDGE WADDLES, AND SOME SEVERAL
MONTHS, 6, 8, 10 MONTHS, LATER,
HE FILES A MOTION TO WITHDRAW.
STATING THAT I HAVE REVIEWED THE
FILES AND RECORDS AND I SEE
NOTHING THAT I CAN RAISE.
>> MR. NUNNELLEY, HEARS MY
CONCERN, YOU HAVE A CASE, THE
DEFENDANT IS IN NO HURRY FOR...
[INAUDIBLE] THEY FILE A MOTION
TO WITHDRAW.
DISMISSED.
NO ONE IS SCHEDULED FOR THE
HEARING.
[INAUDIBLE] INTO THIS WOULD BE
THE CCR MOTION.
>> RIGHT.
MOTION TO WITHDRAW AND UNTIL
THAT IS RESOLVED, I THINK YOU
KNOW, YOUR OFFICE KNOWS, THE
CASE IS NOT GOING ANYWHERE.
WHY IS IT THAT YOUR OFFICE
[INAUDIBLE] WHY DID YOU NOT
SCHEDULE IT FOR A HEARING.
>> THERE WAS NO ACTION GOING ON
IN THE CASE.
CCRC HAD MOVED TO WITH DRAW, IT
WAS THEIR MOTION AND WOULD HAVE
BEEN THEIR BURDEN TO SEEK A
RULING ON THAT MOTION, AND UNTIL
THAT MOTION IS RULED ON THEY
REPRESENT THE MAN, THEY ARE
STATUTORILY CHARGED TO REPRESENT
HIM.
>> THEY FILED A MOTION, DIDN'T
SCHEDULE IT FOR A HEARING.
IT SITS THERE FOR A YEAR.
WHY DOESN'T YOUR OFFICE SCHEDULE
FOR A HEARING, AD AND LET'S
BRING IT TO A HEAD AND GET GOING
ON THIS.
OTHERWISE, IT HAPPENS WHEN THE
GOVERNOR SIGNS THE EXECUTION
WARRANT.
>> I CANNOT GIVE YOU AN ANSWER
FOR THAT.
PERHAPS WE SHOULD HAVE.
BUT, ON THE OTHER HAND, CCR AS
THE MOVING PARTY, IS THE ONE
THAT HAS THE BURDEN TO GET THE
CASE IN FRONT OF THE COURT.
IF THEY WERE -- IF THEY WANT TO
-- A RULING ON THEIR MOTION THEY
NEED TO ASK FOR IT.
>> YOU ARE SAYING, THERE WAS A
SECOND REGISTRY COUNSEL WHO THEN
MOVED TO WITHDRAW AND IS THAT
WHEN --
>> CCRC WAS APPOINTED AND IT WAS
SOMETIME AFTER THAT, NOT
IMMEDIATELY, SOMETIME LATER,
THAT THEY CAME IN, SAYING, WE
ARE TOO BUSY TO HANDLE THIS
CASE.
>> THE IMPLICATION THERE IS,
THERE ARE OTHER THINGS THAT ARE
AVAILABLE TO DO, WE ARE JUST TOO
BUSY TO DO IT, BECAUSE,
CERTAINLY, CAN'T BE TOO BUSY TO
DO NOTHING.
WHICH IS WHAT YOU ARE SAYING THE
OTHER REGISTRY COUNSEL --
>> THEY DID NOT SAY THAT THEY
WERE TOO BUSY TO DO NOTHING.
THEY SAID, WE CAN NOT -- CANNOT
TAKE THIS CASE INTO OUR OFFICE.
>> LET ME ASK YOU, AND MAYBE
THIS IS WHERE YOU ARE GOING.
I'M CONCERNED, I DON'T KNOW HOW
CONCERNED I AM, BUT I AM
CONCERNED THAT DNA TESTING WAS
NEVER DONE ON THESE FINGER NAIL
SCRAPINGS, WHICH COULD EITHER
CONCLUSIVELY SHOW MR. JOHNSTON
IS THE PERPETRATOR, OR, RAISE
GENUINE CONCERNS IF IT IS
POINTED TO ANOTHER PERSON, I
MEAN, DNA, WHY DIDN'T THE STATE
JUST SAY, YOU KNOW, OKAY.
WE'LL HAVE THIS -- THESE
FINGERNAIL DESCRIPTIONS, DNA
TESTED AND HOW COME THAT WAS
NEVER DONE?
I DON'T UNDERSTAND IT.
>> I'LL GIVE YOU TWO ANSWERS AND
I DON'T MEAN TO BE INTEMPERATE
WITH THE FIRST ONE --
INTEMPERATE WITH THE FIRST ONE,
JUSTICE, I REALLY DON'T BUT IT'S
NOT THE STATE'S BUSINESS TO
RETRY FINAL CASES AND THIS
SECOND REASON WHICH IS REALLY
THE FIRST REASON I SUPPOSE, IS
THIS IS NOT AND NEVER HAS BEEN A
LABORATORY EVIDENCE CASE.
THIS IS A CASE THAT IS BASED
UPON THE EVIDENCE THAT YOU
DISCUSSED WITH MR. DOSS THE
BUTTERFLY PENDANT FOUND IN THE
VICTIM'S HAIR AND THE BLOOD ON
THE DEFENDANT'S CLOTHING, THAT
HAS NEVER, EVER, EVER BEEN
DISPUTED AS TO WHOSE IT WAS,
UNTIL MAY OF THIS YEAR.
THE FOOTPRINT FOUND OUTSIDE THAT
HAS NEVER, EVER, EVER BEEN
DISPUTED IN 25 YEARS, UNTIL NOW
--
>> DID MR. JOHNSTON SAY AT SOME
POINT THAT HE PICKED THE VICTIM
UP.
>> YES, MA'AM --
>> FOUND HER AND SO, I MEAN,
THEORETICALLY THAT IS HOW SOME
BLOOD COULD HAVE GOTTEN ON HIS
PERSON.
>> THIS IS --
>> WAIT A MINUTE.
OKAY.
>> I'M SORRY.
>> THERE ARE OTHER EXPLANATIONS
FOR SOME OF THE EVIDENCE THAT --
EXPLANATIONS FOR SOME OF THE
EVIDENCE WE DO HAVE AGAINST HIM
AND THAT IS WHY IT IS OF CONCERN
THAT THESE OTHER PIECES OF
EVIDENCE WERE NEVER TESTED.
I AM TRULY CONCERNED THAT WE
DON'T HAVE A RULE THAN REQUIRES
YOU, IF THERE IS SOMETHING YOU
WANT TO HAVE TESTED, THAT YOU
ASK FOR THE IT BEFORE YOU KNOW,
THE GOVERNOR SIGNS A DEATH
WARRANT, BUT, BE THAT AS IT MAY
IT SEEMS TO ME THAT SOME OF THE
OTHER EVIDENCE AGAINST
MR. JOHNSTON, THERE ARE OTHER
EXPLANATIONS FOR.
THIS SEEMS TO BE REALLY
SOMETHING THAT COULD, YOU KNOW,
PUT THE NAIL ON IT, AS IT WERE,
BECAUSE IT'S EITHER HIS DNA
UNDER THE LADY'S FINGER NAILS OR
IT ISN'T.
>> LET ME ANSWER THAT BEST I
CAN, YOU MAY HAVE TO HELP ME OUT
WITH SOME OF THIS HERE, JUSTICE
QUINCE, I'M NOT SURE I WILL BE
ABLE TO REMEMBER ALL OF IT.
THE BOTTOM LINE IS THAT
MR. JOHNSTON HAS HAD THE
AVAILABILITY OF DNA TESTING WHEN
HE WAS REPRESENTED BY OLD CCR.
CCR-NORTH, BEFORE THEY WERE
DISSOLVED.
HE COULD HAVE SOUGHT DNA TESTING
THEN.
ANDREWS HAD JUST COME OUT.
EVERYBODY KNEW ABOUT DNA.
HE DIDN'T DO IT.
YOU HAVE IN THE CASE, WHILE
MR. JOHNSTON, THROUGH HIS
STATEMENTS, HAS TRIED TO EXPLAIN
-- AND I BELIEVE THERE ARE
EITHER FIVE OR SIX OF THEM, HE
TRIED TO EXPLAIN AWAY EVERYTHING
KIND OF PIECE BY PIECE, WHEN HE
FOUND OUT, FOR EXAMPLE, THAT LAW
ENFORCEMENT KNEW THAT HE HAD
THAT HE HAD SCRATCHES ON HIS
FACE AND NEXT, HE SAID I BOUGHT
A PUPPY AND THE PUPPY SCRATCHED
ME.
WHEN HE FINDS OUT THE BUTTERFLY
PENDANT IS TANGLED UP IN THE
VICTIM'S HAIR, HE SAYS, OH, I
HAVE KNOWN HER TWO OR THREE
YEARS AND I GAVE IT TO HER AS A
GIFT.
NEVER MIND THE FACT THAT HIS
FORMER FIANCEE TESTIFIED THAT
SHE -- AND SHE WORKED IN A
CONVENIENCE STORE, NOT TERRIBLY
FAR FROM THE CRIME SCENE,
TESTIFIED THAT SHE GAVE THAT
NECKLACE TO HIM AND THAT HE WAS
WEARING IT WHEN SHE SAW HIM,
SHORTLY BEFORE THE MURDER TOOK
PLACE.
NOW, THERE WAS TESTIMONY --
>> CAN YOU ADDRESS THE COMMENT
THAT OPPOSING COUNSEL MADE ABOUT
A HEART-SHAPED PENDANT AS
OPPOSED TO A BUTTERFLY PENDANT.
>> YOU ARE READING MY MIND,
JUSTICE!
YEAH.
THERE IS TESTIMONY, THAT HE HAD
A HEART-SHAPED NECKLACE ON ALSO.
THAT IS WHAT THAT TESTIMONY IS
ABOUT.
NONE OF THE WITNESSES ARE -- AND
LET ME... I WOULD DIRECT THE
COURT TO 572 AND 577, OF THE
RECORD.
AGAIN, FOLLOWED BY 713 OF THE
RECORD, WHERE MR. BARTON IS
TALKING ABOUT HIM HAVING ON A
HEART-SHAPED NECKLACE AND HE
SAID, YEAH, HE HAD ON THAT BUT
HE WAS NOT ASKED, DID HE OR DID
HE NOT HAVE A BUTTERFLY NECKLACE
ON HIM, THAT BUTTERFLY NECKLACE
WAS ON HIS NEXT UNTIL IT WAS
RIPPED OFF BY HIS VICTIM WHEN HE
KILLED HER AND THAT
MR. JOHNSTON'S WATCH, COVERED
WITH BLOOD AND FOUND IN THE
VICTIM'S APARTMENT BY THE
BATHROOM SINK DOESN'T CHANGE.
HE HAD IT ON SHORTLY PRIOR TO
THE MURDER.
>> I WANT TO ASK YOU, BACK TO
THE FINGER NAIL SCRAPINGS.
DOES THE STATE KNOW OR WAS THERE
ANY INQUIRY AS TO WHETHER THESE
SCRAPINGS STILL EXIST AND HAVE
SUFFICIENT AMOUNT OF MATERIAL TO
ALLOW FOR DNA TESTING?
>> I CAN ANSWER HALF OF THAT
QUESTION.
MY UNDERSTANDING FROM REVIEWING
THE EVIDENCE LOGS MAINTAINED BY
THE POLICE DEPARTMENT IS THAT
ITEMS DENOTED AS, QUOTE,
FINGERNAILS, CLOSE QUOTE, REMAIN
IN EVIDENCE AT ORLANDO PD.
WHETHER OR NOT THERE IS ANYTHING
UNDER OR CONTAINED IN OR ON
THOSE FINGERNAILS THAT CAN BE
TEST ORDER NOT, I DO THE NOT
KNOW.
WHETHER -- AND WHETHER -- AND I
SAY, WHETHER IT CAN OR CANNOT BE
TESTED, I MEAN, FIRST OF ALL,
DOES IT EXIST?
B, IS IT IN SUFFICIENT QUANTITY
TO BE TESTED AND, C, IS IT EACH
IN SUCH A STATE THAT TESTING IS
EVEN POSSIBLE.
I DO NOT KNOW THE ANSWER TO
THOSE QUESTIONS.
>> BUT IT WAS A RELEVANT ISSUE
AT TRIAL, THAT IS, THE
FINGERNAIL SCRAPINGS, AND
MR. HALL, WHO WAS ONE OF THE
WITNESS -- EXPERT WITNESSES WAS
ASKED WHY THEY WERE NOT ANALYZED
AND HIS -- OF COURSE AGAIN, IT
IS PRE-DNA AND HE SAID,
SOMETHING ABOUT IT IS OUTSIDE OF
MY FIELD TO DO IT.
SO, THERE IS NEVER IN THE
MEDICAL -- AND THE MEDICAL
EXAMINER CONFIRMED HE TOOK
SAMPLES FROM THE VICTIM'S
FINGERNAILS AND THERE IS NO REAL
EXPLANATION AS TO WHY THEY
WOULDN'T HAVE BEEN TESTED AND,
OF COURSE, DNA TESTING OF THIS
TYPE WAS NOT AVAILABLE --
CERTAINLY NOT AVAILABLE AT THE
TIME OF TRIAL.
AND THE PROSECUTOR ARGUED THAT
THE VICTIM WAS SCRATCHING AND
CLAWING AT JOHNSTON, BASING THAT
ON THE SCRATCH MARKS.
SO WHETHER YOU CALL IT THAT -- I
MEAN -- LET ME ASK YOU THIS
QUESTION:
IF THESE WERE TESTED AND IT
SHOWED THE DNA UNDER HER
FINGERNAILS DID NOT COME FROM
MR. JOHNSTON AND WAS -- NOT FROM
HER, WOULD THAT BE PRETTY
POWERFUL EVIDENCE?
>> NOT COUPLED WITH ALL OF THE
REST OF IT, BECAUSE, WHAT YOU
HAVE IN THE -- IN THIS CASE,
FIRST OF ALL, MR. JOHNSTON IS
STUCK WITH HIS STORY ABOUT THE
PUPPY SCRATCHING HIS FACE.
THE STATE OF THE EVIDENCE IS,
THAT THAT DID NOT HAPPEN.
IT IS UNDISPUTED THAT THE
BUTTERFLY PENDANT THAT WAS FOUND
IN ENGINE -- ENTANGLED IN THE
VICTIM'S HAIR, HAD A BROKEN
CHAIN.
THAT IS NOT DISPUTED.
IT IS A REASONABLE IN FENCE FROM
THE EVIDENCE --
INFERENCE FROM THE EVIDENCE,
REGARDLESS OF WHAT DNA TURNS UP
IN THE FINGER NAILS, IN THE
COURSE OF THE STRUGGLE, THAT IS
HOW THAT HAPPENED AND BOMB LINE,
JUSTICE PARIENTE, THE STATE'S
CASE DOESN'T CHANGE A BIT, BASED
UPON THE DNA EVIDENCE.
WE HAVE THE VICTIM'S BLOOD ON
THE DEFENDANT.
NEVER HAS BEEN DISPUTED.
IT WAS NEVER DISPUTED UNTIL THIS
MONTH.
>> WAS IT TEST --
>> MATCHED UP AB-O GROUP.
>> AND ON THE CLOTHING.
>> YES, MA'AM.
THAT WAS TESTED TO THE EXTENT OF
1984 TECHNOLOGY.
NO QUESTION ABOUT THAT.
HE'S ALWAYS SAID -- I MEAN, HE
SAID, HE GOT THE VICTIM'S BLOOD
ON HIM AND WHEN HE PICKED HER UP
AND CRADLED HER HEAD AND CRIED
OVER HER BODY WAS THE STORY HE
GAVE IN ONE OF HIS MULTIPLE
STATEMENTS, BUT THE BOTTOM LINE,
YOU HAVE AN ALIBI DEFENSE THAT
COLLAPSED.
YOU HAVE AN ATTEMPT BY JOHNSTON
TO POINT THE FINGER AT THIS
KEVIN WILLIAMS PERSON.
THAT COLLAPSED.
YOU HAVE JOHNSTON TAKING ITEMS
FROM -- RATHER, LET ME BACK UP.
TAKE PILLOW CASE OUT OF THE
VICTIM'S HOUSE AND GATHERING UP
A BUNCH OF ITEMS AND TAKE THEM
NEXT-DOOR AND HIDING THEM AT THE
DEMOLITION SITE NEXT-DOOR WHERE
HE WAS WORKING CLAIMING HE TOOK
THEM AS A MEMENTO OF THE VICTIM.
>> I UNDERSTAND AND YOU ALSO
HAVE A DEFENDANT WHO WAS THE ONE
THAT CALLED THE POLICE AND SAID,
YOU KNOW, CRYING, SOMEBODY
KILLED MY GRANDMA.
SO IT'S NOT LIKE HE -- I MEAN,
COMMITTED THE CRIME AND THEN
TRIED TO HIDE.
HE, I MEAN -- HE CALLED THE
POLICE.
NOW --
>> GAVE THEM A FAKE NAME WHEN HE
DID, TOO.
>> WHAT.
>> GAVE A FALSE NAME WHEN HE
DID.
>> I MEAN, THE HOME -- MAYBE THE
MURDERER IS EXPLAINED BY
SOMEBODY WHO IS MENTALLY ILL, I
MEAN, IT IS A VERY -- SEEMS LIKE
A VERY BIZARRE SET OF
CIRCUMSTANCES.
NOT THAT WE DON'T SEE THIS.
>> FORTUNATELY WE DON'T HAVE TO
-- THEY ARE NOT RATIONAL -- THEY
ARE FREQUENTLY NOT RATIONAL
ACTS.
BUT, LET ME -- SINCE YOU MENTION
THE MENTAL ILLNESS, LET ME --
>> THERE IS NO MENTAL
MITIGATION, IN THE CASE.
>> NO, THAT WAS AN ISSUE IN THE
'90S, THE 1991, 5850, AND '91,
'92, BEFORE I HAD THE CASE, AND
LET ME MENTION AND TOUCH ON THAT
A BIT.
WE ARE SEEING FOR THE FIRST TIME
AND I'M NOT TAKING A SHOT AT
MR. DOSS HE'S DOING A GOOD JOB
AND DOING THIS BEST HE CAN WITH
WHAT HE'S GOT AND THE FACT HE'D
DEFEND THE CASE IN
POSTCONVICTION DIFFERENTLY FROM
THE WAY IT HAS BEEN DONE BEFORE
IS NOT THE STANDARD, NOT WHAT WE
ARE HERE ABOUT.
WE ARE HERE ABOUT AND TO THE
EXTENT WE ARE TALKING ABOUT A
MENTAL ILLNESS CLAIM THAT, CLAIM
HAS NEVER, EVER BEEN RAISED TO
CHALLENGE MR. JOHNSTON'S
STATEMENTS UNTIL NOW.
AND THAT COMPONENT OF IT IS
PROCEDURAL BARRED, JUST LIKE ANY
OF THE OTHER TESTING ISSUES, THE
NON- DNA TESTING IS WHAT I
CALLED IT THAT IS BARRED AND
COULD HAVE BEEN DONE A LONG,
LONG, LONG TIME AGO.
AND IT WASN'T.
I DON'T KNOW WHY AND IT DOESN'T
MATTER, BECAUSE THAT IS A
PROCEDURAL BAR.
AS FAR AS THE DNA TESTING, THERE
IS NO TIME LIMIT ON IT.
BUT, THAT RULE AND THAT -- THE
STATUTE UNDERPINNING THE RULE,
WERE NEVER INTENDED TO BE A ONE
FREE STAY OF EXECUTION RULE.
I WOULD SUGGEST TO THE COURT
THAT THE TIMING OF ALL OF THAT
IS HIGHLY, HIGHLY SUSPECT.
AND I DON'T MEAN THAT IN A
DISPARAGING FASHION.
>> SPEAKING OF TIMING, HOW DO
YOU SEE THE TIMELINE FROM THE
ENACTMENT OF THE STATUTE AND THE
RULE AND HOW IT CORRESPONDS WITH
WHEN COUNSEL WAS APPOINTED AND
REPRESENTING THE GENTLEMAN, AND
WHEN THEY HAD WITHDRAWN OR FILED
MOTIONS TO WITHDRAW?
WHAT IS THE TIMELINE AND WHAT
WOULD THAT SHOW US.
>> WE ARE NOT THAT LATE, JUSTICE
LEWIS, WE ARE IN THE EARLY '90s
WHEN IT COULD HAVE BEEN DONE.
>> THE RULE WAS NOT IN THE EARLY
'90s, I'M ASKING ABOUT THE RULE,
IF YOU ADDRESS THAT, THE STATUTE
THERAPY RULE.
>> HE HAD THE OPPORTUNITY
POST-RULE TO MAKE THE MOTION HAD
HE CHOSEN TO DO SO AND WE --
>> I AGREE AND AGAIN, WOULD YOU
DEGREES WHEN HE HAD A LAWYER AND
WHEN HE DIDN'T?
>> HELP ME OUT OF WHEN THE RULE
TOOK EFFECT, JUSTICE LEWIS AND
I'LL HAVE TO...
>> THE RULE TOOK EFFECT,
PROBABLY, IN THE -- AROUND 2002,
I GUESS.
2, 4...
>> AMENDED IN 2006 AND 2007 TO
REMOVE THE TIME LIMITATIONS.
>> HE HAD A LAWYER, IN THE STATE
-- I'M SORRY.
THE FEDERAL HABEAS PROCEEDING
WHICH WAS LATE '90s AND WAS
REPRESENTED, STILL, BY THAT
ATTORNEY, I BELIEVE, UP UNTIL --
I AM HAVING TROUBLE REMEMBERING
ALL OF THE DATES.
I KNOW MR. MILLS CAME INTO IT,
AROUND 2003, OR 2004.
AND I KNOW THAT IS WHEN
MR. MILLS CAME IN, RIGHT WHEN
THE CASE WAS SENT BACK FOR...
>> MENTAL RETARDATION.
>> LET ME SEE IF I HAVE ANOTHER
TIMELINE TO HELP ME OUT HERE.
>> ISN'T IT THE CASE, THAT WE
HAVE TO LOOK AT THIS, AND
EVALUATE THIS, JUST LIKE WE
WOULD EVALUATE IT, IF HE HAD
RAISED IT, FIVE YEARS AGO.
OR SIX YEARS AGO.
OR, RIGHT AFTER THE RULE WAS
ADOPTED.
BECAUSE, IN ITS CURRENT
INCARNATION, THIS RULE HAS NO
TIME LIMIT.
THERE IS NO BAR IN THE RULES TO
BRINGING THIS UP AT THE 11th
HOUR.
>> THAT'S TRUE, IT'S NOT AND LET
ME -- FOUND THE TIMELINE AND GOT
MY CHEAT SHEET HERE.
HE WAS IN THE COURT IN 2000 ON A
PETITION FOR WRIT OF HABEAS
CORPUS, IN STATE CIRCUIT COURT
IN 2002, ON A 3.851 MOTION, AND
CAME OUT OF THIS COURT MAY THE
4TH OF 2006 WITH AN AFFIRMANCE,
AND YES.
HE HAD COUNSEL THAT WAS ACTIVELY
LITIGATING THAT CASE AND JUSTICE
LEWIS I APOLOGIZE FOR BEING SO
LOW TO GET TO THAT ANSWER FOR
YOU, TOO MANY DATES.
>> ONE LAST QUESTION.
IT SEEMS TO ME IN READING THIS
RECORD, THAT THE... STRUGGLE,
SEEMS TO ME SHE PROBABLY
SCRATCHED HIS FACE AND SEEMS TO
ME THE DNA... PROBABLY IS
UNDERNEATH HER NAIL.
THE NAIL CLIPPINGS, THAT ARE NOW
AT THE ORLANDO POLICE
DEPARTMENT.
WHY NOT JUST TEST IT AND WE'LL
BE SURE?
>> BECAUSE I DON'T MEAN, I DON'T
-- I MEAN NO DISRESPECT.
I REALLY DON'T...
>> [INAUDIBLE].
>> [LAUGHTER].
>> IT IS TOO EARLY FOR THAT,
STILL, BUT THE STANDARD IS NOT
WHAT DOES IT HURT.
THE STANDARD IS, IS THERE A
REASONABLE PROBABILITY OF A
DIFFERENT RESULT?
AND, UNDER THESE FACTS, WITH
THIS EVIDENCE, UNDER THE LEGAL
STANDARD --
>> YOU DON'T THINK A JURY OF 12
PEOPLE, IF THEY HEARD THAT THE
DNA, YOU KNOW, THE BLOOD
UNDERNEATH THE VICTIM'S NAILS,
BELONGED TO SOMEONE ELSE, THAT
THAT WOULD NOT RAISE THE ISSUE
WITH THEM.
>> NO, NOT AGAINST THE REST OF
THE FACTS.
NOT AGAINST THE REST OF THE
FACTS AND NOT AGAINST
MR. JOHNSTON'S PREEMPTIVE FAILED
EXPLANATION FOR THOSE FACTS,
WHICH COULD BE TURNED AROUND AND
ARGUED AS... GUILT YOU HAVE
SUBSTANTIAL OTHER EVIDENCE
WITHOUT THE SCRATCHES ON HIS
FACE, AND HE'S THIS ONE THAT
KILLED THE POOR LADY.
I WOULD SUGGEST THE LOWER COURT
SHOULD BE AFFIRMED IN ALL
RESPECTS, AND ANY STAY OF
EXECUTION SHOULD BE DENIED.
IT IS TIME FOR THE SENTENCE TO
BE CARRIED OUT.
>> THANK YOU, MR. NUNNELLEY,
MR. DOSS.
>> I'D LIKE TO FIRST TAKE ISSUE
WITH THE STATEMENT THAT THE
FINGERNAIL SCRAPINGS, WHETHER OR
NOT THERE IS ANYBODY ELSE'S
FLESH OR BLOOD IS ON THAT, FLIES
IN THE FACE OF THE OTHER
EVIDENCE, YOU CAN LOOK BACK TO
THE CLOSING ARGUMENT, THE
PROSECUTOR ARGUING THERE IS NO
EVIDENCE THAT ANYBODY ELSE WAS
IN THE APARTMENT DAVID
EUGENE JOHNSTON AND I WOULD ASK
YOU TO RETURN A VERDICT THAT
SPEAKS THE TRUTH BECAUSE THAT IS
WHAT A TRIAL IS, THAT IS 989.
AS WELL, THE PROSECUTOR ARGUED,
THAT HAPPENED DURING A VIOLENT
STRUGGLE.
THAT HAPPENED WHEN MARY HAMMOND
WAS FIGHTING FOR HER LIFE, WHEN
MARY HAMMOND WAS FIGHTING FOR
HER LIFE, THAT HAPPENED WHEN
MARY HAMMOND WAS SCRATCHING AND
CLAWING AT DAVID EUGENE JOHNSTON
WHEN SHE SCRATCHED HIS FACE AND
NEXT AND RIPPED THE CHAIN FROM
HIS NECK AND THEN IT LODGED IN
HER HAIR AND IT FLIES IN THE
FACE OF WHAT IS ARGUED HERE
TODAY.
THAT IT DOESN'T MATTER.
IT ABSOLUTELY MATTERS AND EACH
ONE -- EACH ONE OF THE ITEMS OF
EVIDENCE THAT HAS BEEN SUGGESTED
TO YOU THAT CONTINUED DISTRICTS
WHETHER OR NOT SOMEONE ELSE WAS
THERE, I DON'T SEE THE RELEVANCE
OF IT.
IT PALES IN COMPARISON TO THE
DNA OF SOMEONE ELSE, THE PUPPY,
AS WAS ARGUED IS SOMETHING THAT
WAS CONVENIENTLY CONJURED UP AND
MR. MARTIN SAID MR. JOHNSTON HAD
A PUPPY AND THERE IS AN ISSUE AS
TO WHETHER OR NOT IT WOULD
SCRATCH AND I URGE THE COURT TO
TAKE A LOOK.
I HAVE DETAILED IN FOOTNOTE 3,
REGARDING THE BUTTERFLY
NECKLACE, THAT, YES, PATRICIA
MANN INITIALLY STATED SHE HAD
SEEN HIM WEARING THE NECKLACE AT
572 AND LATER ADMITTED WHAT SHE
ACTUALLY SAW WAS THE
HEART-SHAPED PENDANT ON 577.
WHICH WAS ALSO CONFIRMED BY
MARTIN AT 713, A HEART-SHAPED
PEN DAN AND THERE IS ABSOLUTELY
DOUBT, MUCH MORE THAN WHAT THE
STATE WOULD LIKE TO ADMIT.
AS TO THE COURT QUESTIONS
REGARDING TIMING, ONCE THE
MENTAL RETARDATION CLAIM WAS
DENIED BY THE COURT IN 2006 AND
MAY, 2006, MR. MILLS, THEN MOVED
TO WITHDRAW.
HE WITHDREW AND MR. SOLIS WAS
APPOINTED.
AND MR. SOLIS NEVER TOOK TO IT
FEDERAL COURT AND NEVER
PROCEEDED ANYWHERE ELSE AND
ASKED TO WITHDRAW.
>> [INAUDIBLE].
>> I'M -- I COULDN'T --
>> DO YOU KNOW WHY WE ASKED TO
WITHDRAW.
>> HE SAYS THERE WERE NO OTHER
ISSUES, WHICH, WHICH MEANT HE
DIDN'T TAKE IT INTO FEDERAL
HABEAS COURT AND DIDN'T TAKE IT
ANYWHERE AND THAT LANGUAGE, FOR
A WHILE, HE WAS ALLOWED TO
WITHDRAW.
CCRC MENTAL WAS APPOINTED TO THE
CASE.
THEY MADE THEIR MOTION, IT
LANGUISHED.
UNTIL THE DEBT WARRANTED WAS
SIGNED AND JUDGE WADDLES
APPOINTED ME AND MR. JOHNSTON
HAS EFFECTIVELY BEEN WITHOUT
COUNSEL IN MY ESTIMATION SINCE
MAY OF 2006 WHICH IS A PERIOD OF
THREE YEARS, WHICH IS TIME
PERIOD WITHIN WHICH THE TIME BAR
WAS LIFTED, ON OUR RULE OF
CRIMINAL PROCEDURE 3.853 AND MY
RECOLLECTION OF THE AMENDMENT,
LIFTING THE TIME BAR IS 2006 AS
THE JUSTICE SUGGESTED AND WHEN
WE LOOK AT THAT AND WE CONSIDER
THIS CASE, THAT IT CRIES OUT FOR
THE DNA TESTING, AND THIS COURT
REVERSE AND SEND BACK TO THE
TRIAL COURT SO THE TESTING CAN
BE CONDUCTED.
APPRECIATE YOUR TIME.
>> THANK YOU, MR. DOS S AND
THANK YOU MORE NUNNELLEY, AND
THE COURT WILL TAKE ITS MORNING
RECESS FOR FIVE MINUTES.
>> PLEASE RISE.