MARSHAL: PLEASE RISE. HEAR YE. HEAR YE. HEAR YE. THE SUPREME COURT OF THE GREAT STATE OF FLORIDA IS NOW SESSION. ALL WHO HAVE CAUSE TO PLEA, DRAW NEAR, GIVE ATTENTION AND YOU SHALL BE HEARD. GOD SAVE THE UNITED STATES, THE GREAT STATE OF FLORIDA AND THIS HONORABLE COURT. LADIES AND GENTLEMEN, THE FLORIDA SUPREME COURT. PLEASE BE SEATED.

CHIEF JUSTICE: GOOD MORNING AND WELCOME TO THE FLORIDA SUPREME COURT. THE FIRST CASE ON TODAY'S DOCKET IS ARBELAEZ VERSUS THE STATE OF FLORIDA. MR. SCHER.

GOOD MORNING. TODD SCHER SPECIAL COUNSEL CCRC SOUTH. A SPECIAL ORDER AFTER THE HEARING BY THIS COURT, MR. ASH LASS CLAIMS. MR. ARBELAEZ CLAIMS HIS FAMILY HISTORY IN COLUMBIA AFFECTS AND ILL FOCUS THIS MORNING ON ARGUMENT TWO OF THE BRIEF, WHICH RELATES TO THE ACTUAL PENALTY PHASE, INEFFECTIVENESS CLAIM. WITH RESPECT TO THE MENTAL HEALTH ISSUES, I THINK ONE OF THE MORE STRIKING FACTS THAT SETS THIS CASE APART FROM SOME OTHER CASES THAT THE COURT HAS SEEN, IS THAT MR. ARBELAEZ WAS IN FACT, INITIALLY REPRESENTED BY ASSISTANT PUBLIC DEFENDER RODNEY THAXTON, WHO SPENT SEVERAL YEARS ON THE CASE AND MR. ROBERTO DIAZ ULTIMATELY TOOK OVER AND REPRESENTED MR. ARBELAEZ AT TRIAL. ONE OF THE THINGS THAT MR. SAXON HAD DONE, IN THE COURSE OF HIS REPRESENTATION, WAS VERY AN EXPERT RETAINED, DR. MARY HABER. MARY HABER, IT WAS TESTIFIED BELOW, ON THREE CASES IN 1988 AND 1989. BECAUSE THIS CASE WAS SO LONG AGO, SHE DIDN'T HAVE A SPECIFIC RECOLLECTION AS TO WHY SHE WENT BACK TWO MORE TIMES. SHE SURMISED THAT SHE WOULDN'T HAVE GONE BACK ON HER OWN FOR NO REASON BUT ONLY SURMISED THAT SHE HAD GONE BACK BECAUSE MR. SAXON HAD HAD ADDITIONAL CONCERNS. SHE WENT BACK ESSENTIALLY AS TO COMPETENCY.

DID SHE DO A REPORT, BASED ON THESE ADDITIONAL VISITS?

SHE DID NO REPORT. NO. HER FILE REFLECTED NO REPORT AND THERE WAS NO REPORT IN THE COURT FILE. ONE OF THE ISSUES THAT I THINK THE LOWER COURT INCLUDED IN ITS ORDER AND, CERTAINLY, THE STATE IS ARGUING NOW, IS THAT MR. DIAZ, IT IS UNQUESTIONABLE THAT MR. DIAZ DID NOT KNOW OF MARY HABER'S INVOLVEMENT IN THE CASE, PRIOR TO HIS OWN TAKING OVER THE CASE. THE LOWER COURT SAID, WELL, YOU KNOW, THERE WAS NO REPORT IN THE FILE, SO HOW WOULD MR. DIAZ KNOW THAT SHE WAS INVOLVED. FIRST OF ALL --

DID HE EVER TALK TO HER? [TECHNICAL DIFFICULTIES] BASED ON THAT REPORT AND BASED ON A DISCUSSION, MR. DIAZ SAID HE HAD WITH DR. CASTILLO, HE DIDN'T THINK THERE WAS ANYTHING FURTHER TO PURSUE, ALTHOUGH WHAT IS INTERESTING ABOUT THE REPORT IS THAT MR. ARBELAEZ DOES GO INTO DETAIL ABOUT NATIONALERS ABOUT HIS BACKGROUND -- ABOUT MATTERS ABOUT HIS BACKGROUND, SUICIDE ATTEMPTS ANIMATERS SUCH AS THAT.

HOW ABOUT TRYING TO TIGHTEN UP YOUR ARGUMENT, IN THE SENSE THAT WE HAVE SUCH A LIMITED AMOUNT OF TIME.

SURE.

AND IT IS VERY EASY TO WANDER THROUGH SPECIFIC FACTS, WHICH OBVIOUSLY ARE VERY IMPORTANT AND YOU HAVE BEEN FOCUSING ON SOME OF THOSE, BUT GENERALLY WHAT WE HAVE IS A CLAIM THAT, YOU KNOW, THERE WAS ALL THIS MITIGATION OUT THERE, IF COUNSEL HAD ONLY DONE A PROPER INVESTIGATION AND PRESENTATION.

CORRECT.

AND SO, TAKING THAT SORT OF STANDARD MODEL, SHOW US HOW IT APPLIES HERE OR WHERE THE TRIAL COURT WENT WRONG IN EVALUATING THE PROBLEM HERE. WHAT HAPPENED?

WHAT WENT WRONG HERE, THE TRIAL COURT'S ORDER FOCUSED, I THINK, ALMOST EXCLUSIVELY ON THE DEFICIENT PERFORMANCE PRONG, AND I THINK WHAT WENT WRONG HERE IS SIMILAR TO A SITUATION THAT THE SUPREME COURT FACED IN WIGGINS, WHERE DECISION WERE MADE IN THIS CASE, BASED ON RUDE AMOUNT AREA INFORMATION. NO FURTHER FOLLOW-UP INVESTIGATION WAS DONE IN THIS CASE, EITHER AS TO THE MENTAL HEALTH ISSUES OR AS TO THE LAY MITIGATION, SO TO SPEAK, FAMILY BACKGROUND, ET CETERA, ET CETERA, AND WITH RESPECT TO DR. HABER, SHE CLEARLY TESTIFIED THAT, HAD SHE BEEN ASKED TO SAY, NUMBER ONE, CONDUCT AN EVALUATION FOR MITIGATION, WHAT SHE WOULD HAVE DONE, SHE WOULD HAVE RECOMMENDED, FOR EXAMPLE, FURTHER NEURO PSYCHOLOGICAL TESTING, BASED ON --

{HEF} US WITH, ORDINARILY -- HELP US WITH, ORDINARILY WHAT WE OBVIOUSLY EXPECT LAWYERS IN THE DEATH PENALTY CASES, TO DO A COMPETENT INVESTIGATION AND TO PRESENT, YOU KNOW, WHAT THEY FIND, BUT WHEN THEY CONSULT WITH EXPERTS, THERE IS A LOT OF DEFERENCE THERE, IN TERMS OF THE WHOLE REASON THAT THEY ARE CONSULTING WITH THE EXPERTS, IN A SENSE, JUST LIKE CONSULTING WITH A MEDICAL DOCTOR WHEN YOU HAVE A MEDICAL ISSUE OR, AGAIN, AN ACCOUNTANT, WHEN YOU, IS THAT THE DOCTOR, TO A GREAT EXTENT, WILL, THEN, INDICATE, YOU KNOW, WHAT NEEDS TO BE DONE FURTHER, VERY DIRECTLY, AND IF YOU ARE NOT ADVISED THAT, WELL, WE NEED TO DO THIS AND WE NEED TO DO THAT OR WHATEVER, AND THEY SAY, WELL, YOU KNOW, WE DON'T REALLY FIND ANY MAJOR PROBLEMS, THAT WE ARE GOING TO GIVE A LOT OF DEFERENCE TO COUNSEL, FOR RELYING ON THAT KIND OF THING. WHAT HAPPENED HERE, WHEN YOU SAY THAT DIAZ WAS NEVER IN TOUCH WITH THE FIRST DOCTOR, BUT OBVIOUSLY THE FIRST LAWYERS ON THE CASE, DID CONSULT WITH THE MENTAL HEALTH EXPERT, SO TAKE US TO DIAZ, THOUGH, YOU SAY DIAZ, ALSO, CONSULTED WITH A MENTALITY -- WITH A MENTAL HEALTH EXPERT. IS THAT CORRECT?

NO. DIAZ SOUGHT THE APPOINTMENT. DIAZ FILED THE MOTION FOR A COMPETENCY DETERMINATION, WITH ONE EXPERT, DR. CASTILLO, WHO TODAY EVALUATION AND CAME BACK WITH HIS REPORT AND SAID HE WAS NOT INCOMPETENT, AND THAT IS ALL DIAZ CLAIMS TO HAVE RELIED ON, IN TERMS OF NOT PURSUING THE ISSUE ANY FURTHER.

THE CLAIM HERE, AS OPPOSED TO JUST HAVING A COMPETENCY EVALUATION, THAT THE LAWYER SHOULD HAVE SOUGHT CONSULT INDICATION -- CONSULTATION, AS TO THE BACKGROUND OF THE DEFENDANT AND ANY OTHER MENTAL HEALTH ISSUES THAT WERE THERE, BUT HOW DOES THIS FINDING OF NO ISSUE ABOUT COMPETENCY, IMPACT THAT? THAT IS YOU CAN SAY THAT, WELL, IF THE DOCTOR EXAMINED HIM FOR COMPETENCY AND SAID I DON'T SEE ANY PROBLEMS, THEN WHY SHOULD THE LAWYER GO ANY FURTHER THAN THAT, IF THERE DON'T APPEAR TO BE ANY MENTAL HEALTH PROBLEMS IN THE OPINION OF THE EXPERT THAT HE INITIALLY CONSULTED?

WELL, THIS COURT ON NUMEROUS OCCASIONS AND I THINK IT IS BORNE OUT, ALSO, BY OTHER COURTS, HAS SAID THAT A COMPETENCY EVALUATION, WHICH IS A 15 OR 30-MINUTE FACE TO FACE WITH A DEFENDANT IN A JAIL, IS NOT A SUBSTITUTE FOR A MITIGATION INVESTIGATION.

LET ME ASK YOU THIS QUESTION, THOUGH, CERTAINLY IS THAT WHAT THE EVIDENCE IS, IS 15 MINUTES WITH THIS DEFENDANT? IS THAT WHAT THE EVIDENCE IN THE RECORD IS?

WE DON'T KNOW. THAT IS GENERALLY WHAT --

LET ME POSIT THIS QUESTION OR EXPLORE OR PROBE A LITTLE BIT IN THIS AREA. IT SEEMS TO ME THAT ANY COMPETENT EXPERT, TO DETERMINE COMPETENCY, MUST KNOW SOMETHING ABOUT ONE'S BACKGROUND, WHERE THEY HAVE COME FROM. IT IS NOT JUST A SNAPSHOT, BUT TO DETERMINE WHETHER THIS PERSON IS FAKING IT OR ACTING CRAZY AT ONE POINT IN TIME, WHEN, IS THERE ANYTHING IN THE RECORD ABOUT THIS? I MEAN, I DON'T BELIEVE THAT AN EXPERT JUST DOES IT IN A VACUUM, LOOKS AT A PERSON IN A ROOM AND THAT IS IT. I MEAN, PART OF THE COMPETENCY, IS IT NOT, IS TO EXPLORE WHO THIS PERSON S IS IT SOMETHING THAT IS MADE UP TODAY? IS IT SOMETHING THAT HAS LASTED? WHAT DO WE HAVE WITH REGARD TO ANYTHING LIKE THAT IN IN CASE? ANYTHING AT ALL? ANOTHER ONLY THING THAT THE RECORD REFLECTS IS DR. CASTILLO CONDUCTED THE EVALUATION OF MR. ARBELAEZ AND BASED HIS CONCLUSIONS ON MR. ARBELAEZ'S SELF-REPORT. THAT IS THE EXTENT OF IT. I MEAN, OFTENTIMES THAT IS WHAT THESE COMPETENCY EVALUATIONS ENTAIL. SOMETIMES THEY ARE MORE EXTENSIVE, AND WHEN THEY ARE NOT, YOU SEE WHERE THESE CLAIMS ARISE IN POSTCONVICTION, WHERE THERE WAS OTHER INFORMATION. THAT IS NOT THE SITUATION HERE.

DID HE EXPLORE, THOUGH, IN HIS ANALYSIS, EVEN WITH THIS PARTICULAR DEFENDANT, HIS BACKGROUND, WHERE HE HAD COME FROM?

YES. HE GOT INTO THAT WITH MR. ARBELAEZ. RIGHT.

ANYTHING THERE REVEAL THAT WE SHOULD HAVE, THAT THIS LAWYER SHOULD HAVE PICKED UP ON?

CERTAINLY. I MEAN, MR. ARBELAEZ DID DISCUSS WITH DR. CASTILLO HIS BACKGROUND IN COLUMBIA, SO IT WASN'T A SITUATION, LIKE -- IN COLOMBIA, SO IT WASN'T A SITUATION, LIKE WHEN THE DEFENDANT REFUSES TO ADMIT TO HIS BACKGROUND, THAT IS NOT THE SITUATION. IN THIS SITUATION, HE WAS FULLY OPEN WITH DR. CASTILLO, AS HE WAS WITH ALL OF THE OTHER EXPERTS INVOLVED IN THIS CASE, SO IT WAS CLEARLY AN INDICATION TO MR. DIAZ THAT THERE WAS SOMETHING THAT NEEDED TO BE LOOKED AT IN COLOMBIA, WITH RESPECT TO MAYBE THE MENTAL HEALTH, MAYBE THE MITIGATION, BUT NOTHING WAS DONE, WITH RESPECT TO THAT.

CHIEF JUSTICE: JUSTICE QUINCE HAD A QUESTION. OKAY.

LET ME FLASH FORWARD TO THE EVIDENTIARY HEARING. IT SEEMS TO HAVE BEEN A BATTLE OF THE EXPERTS, LATNER VERSUS REESE, AND LATINER SAID THAT THE DEFENDANT WAS MENTALLY RETARD BUT BASED THAT PURELY ON AN IQ TEST. LATINER ADMITTED THAT SHE DID NOT EVALUATE, WHATSOEVER, THE ADAPTIVE BEHAVIOR, WHEREAS REEVES, ALSO, ADMITTED THAT THE IQ TEST WAS LOW. HOWEVER, BASED ON THE ADAPTIVE BEHAVIOR, DETERMINED THAT THE DEFENDANT WAS NOT MENTALLY RETARDED. THE TRIAL COURT DETERMINED THAT LATINER WAS NOT CREDIBLE, BECAUSE SHE REFUSED TO TAKE INTO ACCOUNT ANY OF THE ADAPTIVE BEHAVIOR, WHICH APPARENTLY WAS SIGNIFICANT, AND THEREFORE BASED HIS DETERMINATION OF NO MENTAL RETARDATION, ON THE TESTIMONY OF DR. REEVES. ON APPEAL, WHY ISN'T THAT SUBSTANTIAL COMPETENT EVIDENCE THAT DEFENDANT WAS NOT MENTALLY RETARDED AND THEREFORE THERE WAS NOTHING FURTHER THAT DIAZ COULD HAVE PRESENTED, AS FAR AS MEANT -- AS FAR AS MENTAL MITIGATION, AS FAR AS RETARDATION?

A COUPLE OF POINTS. THE NUMBER ONE, THE MERE FACT OF LOW IQ IS NOT MITIGATION. WHETHER THE DOCTOR FELT HE WAS MENTALLY RETARDED, THAT IS A SEPARATE INQUIRY. MEANT {ALT}AL RETARDATION IS -- MENTAL RETARDATION IS SEPARATE FROM THE BASE FACT OF LOW IQ FUNCTIONING. NUMBER TWO, WE ARE DEALING WITH A SITUATION HERE WHERE THE JUDGE THAT IMPOSED CONVICTION IS MAKING A FINDING THAT HE IS NOT MENTALLY RETARDED. IF THIS WERE HERE ON AN ATKINS CLAIM, FOR EXAMPLE, THAT MIGHT BE A MORE IMPORTANT ISSUE THAT I WOULD HAVE TO OVERCOME, BUT IN TERMS OF PENALTY PHASE AND EFFECTIVENESS, THE ISSUE HERE IS WHAT WAS REASONABLY AVAILABLE TO MR. DIAZ THAT, COULD HAVE BEEN PRESENTED TO THIS PENALTY-PHASE JURY.

COULD YOU ELABORATE ON THE DEFICIENCY. NOT THE DEFICIENCY. ASSUME DEFICIENCY. WHERE IS THE PREJUDICE? IN OTHER WORDS WE HAVE TO GET TO WHETHER IT UNDERMINES CONFIDENCE IN THE OUTCOME. YOU HAVE GOT A LOW IQ. WHAT DID THE JURY HEAR VERSUS WHAT ARE YOU SAYING IS SUCH THAT ALL THIS COMPELLING MITIGATION THAT WOULD REALLY HAVE TURNED THIS CASE AROUND FOR THE DEFENDANT.

SURE. THE JURY HEARD FROM SEVERAL LAY WITNESSES, WHO WERE COWORKERS OF MR. ARBELAEZ, ESSENTIALLY VERY BRIEFLY THAT HE WAS A GOOD GUY, HARD WORKER. NOTHING ALL THAT DETAILED. THEY, ALSO, HEARD FROM A DOCTOR. LOPEZ WHO, HAD TREATED MR. ARBELAEZ YEARS EARLIER IN MIAMI, FOR EPILEPSY. THAT IS THE EXTENT OF THE MITIGATION THAT THE JURY HEARD. THEY CAME BACK WITH 11-TO-1.

WHAT WASS IT, I THOUGHT THAT WHAT DIAZ SAID WAS, IN HIS CONVERSATIONS WITH ARBELAEZ, HE DIDN'T FEEL, HE DIDN'T SEE ANY INDICATION OF A LOW IQ OR ANYTHING LIKE THAT. DR. CASTILLO, I GUESS, DID NOT INDICATE A LOW IQ, SO WHAT OTHER EVIDENCE WOULD DIAZ HAVE, TO HAVE FLASH IN HIS MIND, A REQUIREMENT THAT HE INVESTIGATE THIS LOW IQ ISSUE FURTHER?

I AM NOT SURE THAT DIAZ SAID THAT HE DIDN'T THINK MR. ARBELAEZ DIDN'T HAVE A LOW IQ. I THINK IN HIS VIEW, HE DIDN'T SEE ANY OVERT PSYCHOSIS OR ANYTHING THAT WOULD {TLEED} MENTAL RETARDATION. THAT IS A DIFFERENT TEST, BUT SOMEBODY BEING OVERLY PSYCHOTIC WOULD GIVE A CLEAR DIFFERENT SIGNAL.

MY QUESTION IS, WHEN AN ATTORNEY GETS A COMPETENCY EVALUATION, HE DOESN'T SEE ANYTHING THAT NECESSARILY JUMPS OUT AT HIM IN TALKING TO THE DEFENDANT, THAT THE DEFENDANT MAY HAVE A LOW IQ. WHAT OBLIGATION IS THERE ON AN ATTORNEY, IN EVERY CASE, TO GIVE THE DEFENDANT AN IQ TEST? WHAT, OR IF NOT, IN EVERY CASE, THEN WHAT FACTORS WOULD TRIGGER THE REQUIREMENT OF GETTING AN IQ TEST FOR THE DEFENDANT?

WELL, I WANT TO CLAIRE {FICHLT} I MEAN, THIS ISN'T, WE ARE NOT TALKING SOLELY ABOUT AN IQ TEST HERE. WE ARE TALKING ABOUT, CERTAINLY DR. CASTILLO AND MR. DIAZ, HIMSELF, ACKNOWLEDGED MR. ARBELAEZ WAS NOT A BRIGHT MAN. MR. DIAZ ACKNOWLEDGED HE WAS NOT A PSYCHOLOGIST OR PSYCHIATRIST. HE CAN'T KNOW WHAT IS GOING ON IN SOMEONE'S MIND. WHAT HE DID KNOW IS THAT MR. ARBELAEZ HAD EPILEPSY. HELENCEY IS ORG BEGANICALLY RELATED OR ORGANIC -- OR ORGANCALLY CAUSED.

THEY DID PUT ON EVIDENCE OF HELENCE I.

OUR POINT IS THERE WAS PLENTIFUL INFORMATION THAT SHOULD HAVE CAUSED MR. DIAZ TO SEEK A MITIGATION MENTAL HEALTH EVALUATION HERE, AND WHAT THAT INFORMATION WAS, I MEAN, WE HAVE DR. HABER, AND HAD DR. HABER BEEN NOTIFIED BY MR. DIAZ AND HAD HE ASKED HER TO CONDUCT A MITIGATION EVALUATION, NUMBER ONE, SHE WOULD HAVE RECOMMENDED NEUROPSYCHOLOGICAL TESTING, WHICH WE DID PRESENT IN THE FORM OF DR. LATNER. NOW, DR. LATNER'S CONCLUSIONS WAS NOT REFUTED BY THE LOWER COURT JUDGE. SHE ONLY REFUTED RETARDATION.

I AM SORE I DIDN'T DOCTOR ON CROSS-EXAMINATION SAY, AT THE EVIDENTIARY HEARING, SAY I REALLY DIDN'T SEE ANYTHING THERE AS TO --

-- INTELLECTUAL FUNCTIONING. SHE DID SAY IT WAS A CLOSE CALL AS TO WHETHER HE WAS BORDERLINE OR RETARD. BORDERLINE, IN AND OF ITSELF IS MITIGATING.

CHIEF JUSTICE: YOU ARE IN YOUR REBUTTAL, BUT I AM STILL CONCERNED, IF WE AGREED WITH YOU ON DEFICIENCY, HAVE YOU ESTABLISHED PREJUDICE?

LET ME RUN THROUGH QUICKLY WHAT SOME OF THE INFORMATION, ASIDE FROM THE LAY TESTIMONY, THE BACKGROUND TESTIMONY, WHICH IS NOT DISCUSSED AT ALL IN THE LOWER COURT'S ORDER, DR. HABER WOULD HAVE BEEN ABLE TO TESTIFY TO MR. ARBELAEZ'S PSYCHIATRIC HISTORY IN COLOMBIA. WE HAVE AFFIDAVITS AND DOCUMENTS FROM COLOMBIA, DISCUSSING HIS VARIOUS STINTS IN MENTAL HOSPITALS, WHERE HE RECEIVED AMONG OTHER THINGS, LEG THROW SHOCK THERAPY AND PSYCHIATRIC DISORDERS IN COLOMBIA. HE HAS AN UNRELATED HISTORY OF SUICIDE ATTEMPTS.

ON THE COLOMBIA ISSUE, I KNOW THAT THE ATTORNEY SAYS THAT HE HAD SENT A LETTER TO THE AUTHORITIES IN {CHROM}IA, LOOKING FOR DOCUMENTATION CONCERNING MR. ARBELAEZ, AND DID, WAS COLLATERAL COUNSEL, I ASSUME COLLATERAL COUNSEL WAS UNABLE TO FIND ANYTHING, OTHER THAN THOSE THREE DOCUMENTS THAT ARE DISCUSSED IN THESE BRIEFS.

MR. DIAZ, WHAT WE HAVE IN THE RECORD IS A LETTER DATED APRIL 8, 1988, WHICH WAS TWO YEARS BEFORE MR. DIAZ GOT INVOLVED IN THE CASE, SO PRESUMABLY THIS WAS DONE BY MR. THAXTON, AND, OF COURSE, '88, THREE YEARS BEFORE THE TRIAL, A LETTER FROM COLOMBIA INDICATING THAT THEY COULDN'T FIND ANY RECORDS BUT THEY WERE GOING TO CONTINUE TO SEARCH. AFTER THAT, NOTHING ELSE WAS DONE. THE FAMILY CONTINUED, UNFORTUNATELY IT WAS AFTER THE TRIAL, TO AT -- TO ATTEMPT TO LOCATE RECORDS. HAD WE FOUND THE DOCTORS AND BEEN ABLE TO GET INFORMATION FROM THE DOCTORS, THAT WOULD HAVE BEEN A DIFFERENT FACTOR, AND, OF COURSE ALL OF THESE DOCTORS KNEW HE HAD HOSPITALIZATIONS. WE HAVE THE MENTAL HOSPITALIZATIONS, THE POOR EDUCATION PERFORMANCE. ONE OF THE PIECES OF INFORMATION WE HAD FROM COLOMBIA WAS AN AFFIDAVIT FROM ONE OF THE TEACHERS IN {CHROM} YEAH. IT WAS A LONELY, SAD --

WHAT IS THE MOST DRAMATIC THING?

EXCUSE ME?

WHAT IS THE MOST DRAMATIC?

I CERTAINLY THINK THE MOST DRAMATIC PIECES OF INFORMATION WERE, WELL, CERTAINLY THE HOSPITAL SAYINGS INS COLOMBIA. CERTAINLY PASSED OFF AS WE KNOW HE IS EPILEPTIC AND THE RECORDS SHOW HE IS EPILEPTIC --

FOR HOW LONG AND WHAT WERE THE CONDITIONS IN THE HOSPITALS?

THE RECORDS INDICATE THAT THEY WERE FOR DIAGNOSIS OF ATTEMPTED SUICIDE, HISTORY OF FREQUENT EPISODES OF DEPRESSION, PATIENT'S CLEAR HISTORY OF MENTAL ILLNESS, DETERMINED HOSPITALIZATION WAS INDICATED AND HAD HIM ADMITTED. ANOTHER DOCTOR, AUTHENTIC SUICIDE ATTEMPT CAUSED SEVERE AND COMPLEX PSYCHIATRIC DIFFICULTIES, ADMITTED TO THE PSYCHIATRIC WARD OF THE MENTAL HOSPITAL IN COLOMBIA, ATTEMPTED USING PSYCHOTHERAPY DRUGS, PSYCHOTHERAPY AND ELECTRIC SHOCK, SO THIS WASN'T SOMETHING RELATED TO EPILEPSY.

AS FOR THOSE MEDICAL RECORDS, WASN'T THE EVIDENCE THAT DIAZ WROTE TO GOVERNMENT AUTHORITIES, TRYING TO GET THE RECORDS. THE GOVERNMENT SAID THOSE RECORDS DON'T EXIST ANYMORE, AND AS TO THE HOSPITALIZATIONS, THE FAMILY IN COLOMBIA SAID WE ARE ABOUT GOING TO TRY TO GET THOSE RECORDS FOR YOU. THEY NEVER GOT THEM.

DIAZ, I DON'T KNOW THAT HE CLAIMED TO HAVE WRITTEN TO COLOMBIA. WHAT WE KNOW IS THAT WE HAVE HIS RECORD, WHICH IS THE RECORD THAT HE WAS REFERRING TO, BUT THAT IS APRIL 8, '88, SEVERAL YEARS BEFORE MR. DIAZ WAS EVEN INVOLVED IN THE CASE. THE FAMILY CONTACTS OCCURRED RIGHT AT THE TIME OF TRIAL, AND IN FACT, AFTER, BETWEEN THE TRIAL AND THE PENALTY PHASE,, WHICH OF COURSE, AT THAT POINT WAS TOO LATE, AND SO THE FAMILY THAT, IS ANOTHER THING, THE FAMILY, FOR EXAMPLE, LEFT A MESSAGE WITH MR. DIAZ'S OFFICE, FEBRUARY 2, '91, WHICH WAS EIGHT DAYS BEFORE TRIAL, SAYING WE ARE STILL LOOKING AND WE WANT TO HELP IN ANY WAY WE CAN. I THINK THAT REFUTES MR. DIAZ STATING THAT THE FAMILY DIDN'T WANT TO HELP HIM AND PUTTING THE ONUS ON HIS FAMILY IN COLOMBIA IS NOT WHAT THE CONSTITUTION REQUIRES.

WHAT WAS THE RESPONSE, ATTORNEY DIP AS TESTIFIED THAT HE GOT A WRITTEN RESPONSE BACK FROM THE GOVERNMENT.

RIGHT. THAT IS THE RESPONSE I AM REFERRING TO, IN APRIL OF '88, WHICH IS BEFORE HE WAS INVOLVED IN THE CASE, WHICH INDICATED THAT THEY COULDN'T FIND ANY RECORDS BUT THAT THEY WOULD CONTINUE TO SEARCH.

HOW DID YOU LOCATE THE RECORDS?

WE WENT TO COLOMBIA. WE HAD INVESTIGATEORS GO TO COLOMBIA, SPEAK WITH FAMILY MEMBERS, HIT THE STREETS, FIND OUT THE NAMES FROM THE FAMILY MEMBERS AND GO AND FOUND THEM. THAT IS WHAT WAS REQUIRED AND THAT WAS NOT DONE {HEERT}.

IS THERE ANYTHING IN DR. CASTILLO'S ANALYSIS, ANY INFORMATION CONCERNING THESE HOSPITALIZATIONS? LEG THROW SHOCK THERAPY? IT -- ELECTROSHOCK THEY WEREY? IT IS BEYOND ME THAT ONE WOULD EVALUATE'S ONE'S COMPETENCY OR MENTAL STATUS, WITHOUT --

YOU ARE PREACHING TO THE CHOIR THERE. I WOULD HAVE TO CHECK MY BRIEF, IN TERMS OF WHAT DR. CASTILLO TOLD MR. DIAZ, BUT, AGAIN, THESE COMPETENCY EVALUATIONS ARE A SNAPSHOT IN TIME AND THAT IS WHAT THEY DO.

WITH OUR HELP, WE HAVE USED UP ALL OF YOUR TIME AND WE CAN GIVE YOU 30 SECONDS ON REBUTTAL, IF SOMETHING ELSE COMES UP.

THANK.

CHIEF JUSTICE: MS.^CAMPBELL.

MAY IT PLEASE THE COURT. LESLIE CAMPBELL WITH THE ATTORNEY GENERALS OFFICE, ON BEHALF THE STATE OF FLORIDA. IT IS OUR CONTENTION THAT MR. DIAZ DID DO A COMPETENT JOB IN REPRESENTING MR. ARBELAEZ, AND, ALSO, THAT IF ANY DEFICIENCY IS FOUND, GOING ALONG WITH THE COURT'S INQUIRE, THERE IS NO PREJUDICE. THE STATE WOULD POINT TO DR. HABER'S STATEMENT, HER TESTIMONY, AND SHE SAID THAT SHE TALKED TO THE DEFENDANT. SHE DID THE COMPETENCY. AND SHE, ALSO, LOOKED AND WAS IMPORTANT TO HER, SHE LOOKED AT HIS VIDEOTAPED CONFESSION.

YOU ARE, ARE YOU DEALING, WITH, PREJUDICE? EYE WILL DEAL WITH THE PREJUDICE FIRST.

OKAY.

AND SHE FOUND NO REASON TO GO FORWARD.

IS THAT ALL THAT SHE DID? SHE DIDN'T HAVE ANY OTHER INFORMATION ABOUT MR. DIAZ?

ABOUT MR. ARBELAEZ.

I AM SORRY. ABOUT MR. ARBELAEZ.

NO. SHE HAD JAIL RECORDS. SHE HAD OTHER INFORMATION ABOUT HIM, AND SHE TALKED TO HIM, AND FOUND HIM TO BE COMPETENT.

DID SHE KNOW ABOUT THE HOSPITALIZATIONS IN COLOMBIA?

YES.

SUICIDE ATTEMPTS AND ALL OF THAT?

HE WAS FORTHRIGHT WITH HIS DOCTORS.

SO SHE WAS AWARE OF ALL OF THAT.

RIGHT.

AND THE JURY, THE JURY NEVER HEARD ANY OF THAT, THAT HE HAD A HISTORY OF SUICIDE ATTEMPTS, HOSPITALIZATIONS FOR THAT, ELECTROSHOCK THERAPY.

NO. THAT DIDN'T COME OUT. HOWEVER, DR. CASTILLO SAID AT THE TIME, HE SAW NO EVIDENCE OF DEPRESSION. THERE WAS NO PSYCHOSIS. THERE WAS NOTHING, NOTHING IN MR. ARBELAEZ'S RECENT HISTORY, AND HE SAW HIM CLOSE TO THE TIME OF THE CRIME, AS DID DR. HABER, THAT WOULD REQUIRE ANYTHING FURTHER.

DO YOU AGREE THERE IS A DIFFERENCE BETWEEN A COMPETENCY EVALUATION AND WHEN YOU ARE EVALUATING FOR MENTAL HEALTH MITIGATION FOR PENALTY PHASE?

THIS COURT HAS SO FOUND. HOWEVER, IN THE CASE OF DR. CASTILLO, THERE WAS AN UNDERSTANDING THAT, IF HE, WITH MR. DIAZ, THAT IF HE SAW ANYTHING FURTHER, THAT WOULD BE OF MITIGATING EFFECT, HE WOULD HAVE BROUGHT THAT --

HOW LONG DID THAT COMPETENCY EVALUATION LAST? DO WE KNOW IF THIS WAS A HALF-HOUR ONE OR ALL DAY OR TWO DAYS?

I DON'T BELIEVE THE RECORD GIVES AN ACTUAL DATE BECAUSE DR. CASTILLO DID NOT TESTIFY. HOWEVER, IT IS A MULTI-PAGE REPORT, AND IT GOES INTO DETAIL.

DOES IT GO INTO DETAILS OF THE PSYCHIATRIC HOSPITALIZATION?

HE DOES TALK ABOUT THE SUICIDE AND ATTEMPTS AND THINGS LIKE. THAT.

WE HAD A CHANGE IN LAWYERS HERE, IS THAT CORRECT?

A CHANGE IN? I AM SORRY. ANOTHER LAWYERS FOR THE DEFENDANT. CHANGED. WERE THERE LAWYERS THAT REPRESENTED THE DEFENDANT --

THE LAWYERS, YES, THEY DID.

DID THE LAWYER, THEN, DIAZ, ENDED UP REPRESENTING THE DEFENDANT AT TRIAL. DID DIAZ TESTIFY THAT HE HAD ALL OF THE COURT FILES AND RECORDS OF THE PREVIOUS ATTORNEYS?

HE SAID HE HAD THE PREVIOUS ATTORNEYS' FILE AND HE SPOKE TO THE PREVIOUS ATTORNEY ON SEVERAL OCCASION.

HELP ME, NOW, WITH REFERENCE TO THE CONFUSION OVER THIS ISSUE OF WHETHER OR NOT HE WAS AWARE THAT DR. HABER HAD EXAMINED THE DEFENDANT BEFORE.

ONE THING THAT MR. DIAZ SAID IS THAT HE DIDN'T HAVE A RECORD, BASED ON THE TIME DIFFERENCE. HE REALLY DIDN'T RECALL ALL OF THE DETAILS. HOWEVER, HE DID ADMIT THAT HE DIDN'T TALK TO OR HE DIDN'T GET ANYTHING FURTHER FROM DR. HABER. I THINK THAT IS THE BEST THAT WE COULD, HE IS OUT OF THE RECORD.

SO IT WASN'T THAT HE TESTIFIED THAT HE WASN'T AWARE OF DR. HABER. IT IS THAT HE TESTIFIED THAT HE COULDN'T RECALL ANY INTERACTION WITH DR. HABER.

THE ONLY INTERACTION HE RECALLED WITH DR. HABER WAS, IN FACT, IN THE MID'90s, AND IT MAY HAVE BEEN INVOLVED --

WAS IT DEMONSTRATED HERE THAT DR. HABER'S REPORT WAS IN THE FILE OF THE PREVIOUS ATTORNEYS?

SHE DID NO REPORT.

SHE DIDN'T DO.

SHE DID NO REPORT. SHE HAD NO FILE AFTER HURRICANE ANDREW. ALL SHE HAD WERE SOME NOTES, AND IT WAS FROM HER NOTES THAT SHE TESTIFIED IN THIS TRIAL, AND IT IS IMPORTANT --

I GUESS WHAT I AM TRYING TO, AWKWARDLY, TRYING TO FIND OUT WHETHER THE LAWYER, YOU KNOW, WHAT YOU WOULD ASSUME IS THAT THE FIRST THING THE LAWYER WOULD DO, IS TALK WITH A PREVIOUS LAWYER, AND HAVE THE PREVIOUS LAWYER'S INVESTIGATIVE AND COURT FILE AND GO THROUGH THAT THOROUGHLY, SO THAT THE STARTING POINT FOR THE NEW LAWYER, IS ALL OF THE KNOWLEDGE THAT HAD BEEN ACQUIRED BEFORE. DO WE HAVE ANY INSIGHT INTO THAT IN THIS CASE?

WE HAVE THE INSIGHT THAT HE HAD THE ENTIRE COURT FILE. WE, ALSO, HAVE THE INSIGHT THAT HE SPOKE, THAT MR. DIAZ AND MR. THAXTON SPOKE. NOW, THE PROBLEM IS WE ARE EVALUATING WHAT MR. DIAZ DID IN THIS CASE. WE ARE NOT EVALUATING, THERE WAS NO ALLEGATION OF WHAT MR. MR. THAXTON DID IN THIS CASE, AND IF HE DID NOT PURSUE IT ANY FURTHER, WE REALLY CAN'T BLAME MR. DIAZ.

IF THERE HAPPENED TO BE A 25-PAGE REPORT IN THE PREVIOUS COURT FILE OR THE PREVIOUS LAWYER'S FILE THAT THEY GAVE TO HIM AND THAT HE JUST PUT ASIDE AND THEN STARTED DEFENDING IT JUST ON HIS ON OWN, WITHOUT LOOKING AT WHAT HAD BEEN DONE BEFORE --

THAT IS TRUE, HOWEVER, THERE IS NO REPORT, AND DR. HABER TESTIFIED I DID NO REPORT!

BUT THE PRIOR LAWYER HAD UNDERSTOOD, AT LEAST HE FELT HE NEEDED MITIGATION SPECIALIST, SOMEONE TO LOOK AT POSSIBLE MENTAL HEALTH MITIGATION. WOULD THAT BE A FAIR READING AS TO WHY --

WHAT MR. THAXTON DID?

DIAZ.

MR. THAXTON HIRED DR. HABER.

BECAUSE HE FELT --

FOR COMPETENCY, INITIAL COMPETENCY EVALUATION.

NOT THE MENTALITY -- NOT THE MENTAL HEALTH EVALUATION?

SHE, TOO, WAS LOOKING AT COMPETENCY, SO DR. HABER IS LOOKING AT COMPETENCY. THEN MR. DIAZ COMES ON THE CASE, AND HE GETS DR. CASTILLO TO DO THE SAME THING.

NOT KNOWING THAT DR. HABER HAD DONE T.

NOT KNOWING.

DID MR. THAXTON TESTIFY AS TO WHAT HE WAS PLANNING TO DO FURTHER IN THIS CASE?

MR. THAXTON DID NOT TESTIFY IN THIS CASE.

IT SEEMS TO ME YOU HAVE A PROBLEM, WHEREFORE SOME REASON, BOTH OF THESE ATTORNEYS FELT THAT MR. ARBELAEZ NEEDED TO BE EVALUATED FOR COMPETENCY. I MEAN, THIS ISN'T A STANDARD PROCEDURE. EVERY DEFENDANT IS EVALUATED FOR COMPETENCY, IS IT?

BUT IT IS FOR MR. DIAZ. AS A MATTER OF COURSE, HE ALWAYS HAS HIS DEATH PENALTY DEFENDANTS EVALUATED. THAT IS JUST --

WE HAVE TWO ATTORNEYS HERE, WHO, FOR WHATEVER THEIR REASON IS, HAD HIM EVALUATED FOR COMPETENCY. I MEAN, THERE MUST BE SOMETHING THAT WOULD TRIGGER PEOPLE HAVING COMPETENCY EVALUATIONS, SOMETHING THAT SAYS THESE PEOPLE MIGHT HAVE SOME MENTAL PROBLEMS. AND SO, EVEN IF THEY ARE COMPETENT, WOULDN'T AN ATTORNEY, THEN, SAY, WELL, IF I BELIEVE HE HAS SOME KIND OF MENTAL PROBLEM, MAYBE THIS WOULD BE GOOD FOR MITIGATION, EVEN THOUGH HE IS COMPETENT TO PROCEED, AND SO WOULDN'T THE NEXT STEP BE, OKAY, HE IS COMPETENT, BUT LET'S SEE WHAT HIS MENTAL STATE REALLY IS, THAT WOULD HELP, IF AND WHEN WE GET TO THE PENALTY PHASE.

AS I SAID, MR. DIAZ'S NORMAL STANDARD OF OPERATING PROCEDURE, STANDARD OPERATING PROCEDURE, IS TO HAVE A COMPETENCY EVALUATION DONE. WE DON'T KNOW WHAT MR. THAXTON'S BASIS FOR GETTING A COMPETENCY EVALUATION WAS. IT MAY HAVE BEEN THE EXACT SAME.

IS THERE TWO MOTION INS THE FILE, THEN, FOR A COMPETENCY EXAM? IN OTHER WORDS, HERE THAXTON GETS A COMPETENCY EXAM, WHICH PRESUMABLY THERE HAD TO BE A MOTION, TO OBTAIN ONE, CORRECT?

I BELIEVE SO.

SO WHY WOULDN'T THAT HAVE PUT MR. DIAZ ON NOTICE THAT THERE HAD ALREADY BEEN ONE DONE AND TO GET THAT INFORMATION?

I DON'T HAVE AN ANSWER OF THAT. IF IT WAS IN THE COURT FILE BUT NOT IN THE OTHER DEFENSE LAWYER'S FILE, THAT ANSWER WOULD HAVE BEEN PROVIDED FOR HIM.

YOU SAY THAT THE SECOND DR. CASTILLO, YOU SAY THERE WAS A HISTORY, SELF-REPORT OF SUICIDE ATTEMPTS, OF EPILEPSY ON AND ON. THIS CASE INVOLVES A, HIM THROWING A FIVE-YEAR-OLD BOY OFF OF A BRIDGE. CLEARLY AN ACT OF SOMEBODY THAT HAS GOT SOME EMOTIONAL, MENTAL GOING ON. THIS ISN'T A, AT LEAST FROM THE WAY I SEE IT, THIS IS OBVIOUSLY A HIGHLY INFLAMMATORY CASE, SO THEY ARE SITTING THERE, THINKING, YOU KNOW, IT IS A FULL CONFESSION. WHAT AM I GOING TO BE ABLE TO DO TO SAVE THIS PERSON'S LIFE? IS THERE, HE IS AN EPILEPTIC. HERE IS A HISTORY OF SUICIDE ATTEMPTS. WHAT IS THE EXPLANATION FOR NOT PURSUING THAT FURTHER? IN OTHER WORDS, WHERE IS THE DOWN SIDE TO PRESENTING THAT KIND OF EVIDENCE TO THE JURY?

MR. DIAZ, JUST TO GIVE A BROAD OVERVIEW, THERE WAS A VIDEOTAPED DEPOSITION. VIDEOTAPED CONFESSION. THERE WAS AN AUDIO-TAPED CONFESSION, AND THERE WERE MANY, MANY ADMISSIONS, AND ALL OF THEM CAME DOWN TO THE BOTTOM LINE THIS WAS A REVENGE KILLING. THIS WAS NOT SOMETHING THAT WAS OUT OF DEPRESSION. THIS IS SOMETHING THAT THE DEFENDANT WANTED TO GET BACK AT THE MOTHER OF THIS CHILD. BECAUSE SHE NO LONGER WANTED HIM AS HER BOYFRIEND. THAT WAS THE BOTTOM LINE. AND HIS EXPLANATION WAS THAT, IF YOU WERE LATIN, YOU WOULD UNDERSTAND WHY I AM DOING THIS.

AND THAT SOUNDS LIKE A NORMAL THING TO SAY. IN OTHER WORDS, IT IS A FIVE-YEAR, TO THROW A FIVE-YEAR-OLD OFF OF A BRIDGE, IS JUST A KIND OF NORMAL THING THAT SOMEONE DOES TO GET BACK AT THEIR GIRLFRIEND.

I THINK --

YOU DON'T THINK THERE NEEDS TO BE AN EXPLANATION TO THE JURY MENTALLY, HOW SOMEBODY WOULD COME TO THAT KIND OF A THOUGHT.

AND THERE WAS. THE EXPLANATION WAS, IT WAS A CRIME OF PASSION. HE WAS JUST --

WHO TESTIFIED TO THAT?

THAT WAS ALL PART OF THE ARGUMENT OF COUNSEL.

BUT I AM ASKING YOU WHAT WITNESSES. WHAT WAS THERE, WITNESS-WISE, TO MAKE THAT, GIVE THAT ARGUMENT SOME MEAT?

YOU HAVE THE MOTHER TESTIFYING AS TO WHAT HAPPENED. YOU HAVE SEVERAL FRIENDS TESTIFYING AS TO HIS MIND-SET. YOU HAVE A MAN, MR. ARBELAEZ'S FRIEND, WHO HE SPOKE TO JUST BEFORE THAT.

I GUESS I AM ASKING, WHY, YOU KNOW, NOW WE HAVE PREJUDICE OR YOU KNOW, DEFICIENT, WHY WOULDN'T A REASONABLY COMPETENT ATTORNEY, WITH THIS TYPE OF CRIME, WITH THE HISTORY IN THE COMPETENCY EXAM, HE IS COMPETENT TO STAND TRIAL. DIFFERENT. YOU AGREE A DIFFERENT STANDARD, AND THERE IS THIS HISTORY OF HOSPITALIZATIONS AND THAT HE HAS SELF-REPORTED. WHY WOULDN'T YOU DO EVERYTHING POSSIBLE, TO GET EVERYTHING, EVERY PIECE OF INFORMATION ABOUT THAT, TO MAKE SURE THAT THAT WOULDN'T BE A BETTER THING TO PRESENT TO THE JURY? AND THEN MAKE A DECISION AS TO WHETHER, NO, I DON'T WANT THAT. I AM JUST GOING TO GO WITH THE PEOPLE THAT SAW HIM AROUND THE TIME OF THE CRIME, TO DO WHAT?

THERE ARE TWO EXPLANATIONS, YOUR HONOR. NUMBER ONE, HE DID HAVE THIS WEALTH OF DATA AS TO WHY THE DEFENDANT DID WHAT HE DID. INITIALLY, HIS THEORY OF THE CASE WAS TO HAVE THE DEFENDANT NOT TESTIFY AT GUILT PHASE AND THEN TESTIFY IN THE PENALTY PHASE. AND TO TESTIFY, AS TO HIS REMORSE, AS TO WHY HE CAME BACK, TO GIVE MORE OF A FAVOR OF THE MIND-SET OF THE DEFENDANT AS TO HE WAS JUST DISTRAUGHT BY LOSING HIS GIRLFRIEND, AND HE DID THIS CRIME. WHAT HAPPENED, WHICH CHANGED A LOT OF STRATEGIC, WAS THE DEFENDANT TESTIFIED IN THE GUILT PHASE, AND SAID IT WAS AN ACCIDENT. THE CAR DID BREAKDOWN. I AM ON THIS BRIDGE AND I TURN AROUND AND THE BOY IS NOW IN THE WATER. AND SO THAT, REALLY --

WHY DID THAT HAPPEN? WAS THAT BECAUSE THE DEFENSE COUNSEL TOLD HIM TO TELL A DIFFERENT STORY?

ABSOLUTELY NOT. DEFENSE COUNSEL DID NOT WANT HIM TO TESTIFY. THIS WAS MR. ARBELAEZ'S DEFICIENT COMPLETELY, AND IF YOU READ THE TRANSCRIPT --

WE NEVER LOOKED AT INEFFECTIVE ASSISTANCE IN THE GUILT PHASE. THAT WAS SUMMARILY DENIED.

THIS COURT DID AFFIRM THOSE, AND THEN YOU HAVE HIM TESTIFYING, GOING TO THE PENALTY PHASE, AND MR. DIAZ IS EXPLAINING THAT IT WOULD BE DIFFICULT TO GO INTO THE PENALTY PHASE, NOW, GIVEN WHAT THE DEFENDANT TESTIFIED TO IN THE GUILT PHASE. I HAD TO CHANGE MY STRATEGY A LITTLE BIT. I REALLY CAN'T PUSH THE REMORSE, BECAUSE THIS GENTLEMAN IS NOW SAYING IT IS AN ACCIDENT. I CAN'T PUSH SOME OF THESE OTHER THINGS, SUCH AS, I REALLY CAN'T PUSH THEM SUCH AS THAT THE CHILD WAS THROWN OFF THE BRIDGE. MY DEFENDANT TESTIFIED OTHERWISE. SO A LOT OF THAT STRATEGY WAS CHANGED, AND HE, ALSO, TOOK INTO CONSIDERATION THAT THERE WAS A FIVE-YEAR-OLD CHILD, AND TOOK INTO CONSIDERATION A DEFENDANT WHO IS NOW CLAIMING I HAD A POOR CHILDHOOD. I HAVE THESE SUICIDE ATTEMPTS, AND HE IS WEIGHING THAT AGAINST THE DEATH OF A CHILD, AND HE FEARED THAT THAT MIGHT BE A BACKLASH.

BUT YOU WOULDN'T HAVE STARTED, NOW YOU ARE ASSUMING THAT IF HE ALREADY HAD ALL THESE WITNESSES LINED UP AND THEN SAID NOW I CAN'T USE THEM, BUT I AM STILL WONDERING OR GOING BACK TO WHY HE NEVER PURSUED THIS TO BEGIN WITH, KNOWING THAT HE HAD THE FULL CONFESSION. YOU ARE SAYING --

WHICH WITNESSES ARE YOU REFERRING TO? ARE YOU TALKING ABOUT THE FAMILY MEMBERS OR THE MENTAL HEALTH?

MENTAL HEALTH MITIGATION.

HE DID HAVE DR. CASTILLO. DR. CASTILLO GAVE HIM NOTHING IN MITIGATION, AND THAT WAS THE AGREEMENT BETWEEN DR. CASTILLO AND MR. DIAZ, AND WHAT --

THE AGREEMENT WAS WHAT, I AM SORRY?

IF DR. CASTILLO SAW ANYTHING TO GO FURTHER OR ANYTHING IN MITIGATION, HE WOULD HAVE ADVISED HIM.

NOW, YOU DON'T SEE, I JUST WANT TO MAKE SURE, YOU DON'T SEE A HISTORY OF SUICIDE ATTEMPTS, AS BEING MITIGATION?

AND, YOUR HONOR, WE ARE TALKING ABOUT IN 1988 '89. THERE WAS, WHEN THE LAW WAS, WHEN THE LAW WAS THAT THERE SHOULD BE SOME SORT OF LINK BETWEEN THE CLAIM TO MITIGATION AND THE CRIME, AND THERE WAS NO LINK BETWEEN THOSE SUICIDE ATTEMPTS AND THE CRIME. NOW, TODAY, JUST BRINGING SUICIDE ATTEMPTS OUT, MAY BE CONSIDERED MITIGATION, BUT IT WOULDN'T HAVE BEEN CONSIDERED MITIGATION BACK THEN.

HOW ABOUT THE, IT IT SEEMS AS THOUGH THE SUICIDES ARE THE MANIFESTATION OR THE EVENT THAT MAY HAVE BEEN PRODUCED BY SOMETHING FOR WHICH THERE WAS A PSYCHIATRIC HOSPITALIZATION, AND WAS THERE SOMETHING THAT DR. CASTILLO OR SOMEONE SUGGESTED TO COUNSEL, DON'T GO DOWN THAT ROAD? DON'T GO GET ANY RECORDS. DON'T ANALYZE ANYTHING ABOUT THE PSYCHIATRIC HOSPITALIZATION AND THE ELECTROSHOCK THERAPY? THAT TO ME, IT SEEMS AS THOUGH, AS A LAY PERSON, SOMEONE SAYING THIS PERSON WAS HOSPITALIZED AND THEY HAD ELECTRICITY AND THEY PUT ELECTRICITY THROUGH THEIR BRAIN TO TRY TO TREAT THEM, DOES THAT SEEM TO --

THAT CAME OUT LATER, YOUR HONOR, AS FAR AS THE ELECTROSHOCK TREATMENT.

BUT YOU ARE SAYING THAT THE HOSPITALIZATION WAS CONTAINED WITHIN DR. CASTILLO --

IT WAS SELF REPORTED, YES.

SO IS THERE SOMETHING THAT WOULD TELL ATTORNEY DIAZ, DON'T GO DOWN THAT PATH? THAT IS WHAT I AM TRYING TO SEE. DID DR. CASTILLO SAY, NO, THERE IS NOT GOING TO BE ANYTHING THERE OR DON'T GO THAT WAY OR THAT IS NOT IMPORTANT?

NOT IN HIS REPORT, YOUR HONOR. ONE OTHER THING, IF I MAY, THOSE SUICIDE ATTEMPTS WERE BEFORE MR. ARBELAEZ WAS 18. THAT WAS IN COLOMBIA. HE CAME TO THE UNITED STATES WHEN HE WAS 18 AND NOW WE ARE TALKING WHEN HE IS 33. WE HAVE NOTHING AS FAR AS WHAT HAPPENED BETWEEN 18 AND 33. WE DON'T HAVE ANY SUICIDE ATTEMPTS.

I JUST WANT TO CORRECT SOMETHING. YOU SAID THAT IN 1988 AND 1989, SOMEBODY WOULDN'T HAVE LOOKED AT THOSE ISSUES AS MITIGATION, BECAUSE THAT WASN'T PART OF WHAT MITIGATION WAS. LOCKETT VERSUS OHIO CAME OUT IN 1978, SAYING A SENTENCE OR MAY NOT BE PRECLUDED FROM INCLUDING AS MITIGATION, ANY ASPECT OF A DEFENDANT'S CHARACTER OR RECORD AND ANY CIRCUMSTANCES OF THE OFFENSE. YOU ARE NOT REALLY SAYING, WASN'T LOCKETT THE LAW IN --

LOCKETT WAS THE LAWYER, YOUR HONOR. HOWEVER, THE WAY THAT IT WAS INTERPRETED WAS THAT THERE HAD TO BE SOME LINK BETWEEN THE MITIGATION THAT SUFFERED AND THE CRIME.

THAT IS WHAT THIS COURT HAD SAID?

I BELIEVE THAT WAS THE GENERAL, THE GENERAL TREND AT THAT TIME. SINCE THEN, NOW, IT IS ANYTHING IS OFFERED.

SO, THEN, WHY WAS IT THAT HE PUT ON, IN MITIGATION, HIS GOOD EMPLOYMENT HISTORY? THAT DOESN'T HAVE ANYTHING TO DO WITH THE CRIME.

NO, BUT IT SHOWS HIS GENERAL CHARACTER, AND IT WOULD LINK INTO THAT THIS IS AN ABERRATION, IN THAT HE JUST LOST CONTROL, BASED ON BEING SPURNED BY THE VICTIM'S MOTHER. SO THAT WOULD HAVE ALL TIED IN.

WHAT DID HE SAY IN HIS CONFESSION? DID HE CONFESS THAT HE HAD COMMITTED THE CRIME?

ABSOLUTELY. AND WHY. HE EXPLAINED THAT HE DID THIS, IN ORDER TO GET BACK AT THE VICTIM'S MOTHER.

SO AT TRIAL HE TESTIFIED THAT IT WAS AN ACCIDENT. HE WAS CROSS-EXAMINED WITH HIS CONFESSION.

YES.

AND WAS THERE ANY EXAMINATION OR CROSS-EXAMINATION ABOUT HIM HAVING COME FROM COLOMBIA AND WHETHER OR NOT THAT CULTURE CONTRIBUTED TO THIS INCIDENT?

THAT WAS SOMETHING OFFERED IN MITIGATION, THAT THE DIFFERENCE BETWEEN, I GUESS, HOW MEN AND WOMEN TREAT EACH OTHER AT THAT PARTICULAR TIME OR AT LEAST HOW MR. ARBELAEZ SAW IT, THAT CULTURAL DIFFERENCE SHOULD NOT BE HELD AGAINST HIM HERE.

WAS THAT PART OF HIS ARGUMENT?

THAT WAS HIS ARGUMENT. JUST TO GET BACK TO DR. HABER IN 1988, '89, WHEN SHE IS TESTIFYING NOW, SHE IS REPORT WAG SHE DID IN '88 AND '89 AND SHE SAID THAT SHE SAW NO BASIS TO REQUIRE MORE TESTING. SHE CONSIDERED HIS BACKGROUND, WORK RECORDS, SUICIDE, EPILEPSY AND JAIL RECORDS. SHE FOUND THAT HE WAS NOT SUFFERING, MR. ARBELAEZ WAS NOT SUFFERING FROM ANY PSYCHOTIC DISORDER OR DEPRESSION, NOT DELUSIONAL, PARANOID OR DEPRESSIONAL. THAT IS BACK FROM HER '88 AND '89 RECORDS. CERTAINLY THERE IS NO HALLUCINATIONS AND NO REASON TO DO IQ TESTING, SO THERE IS NOTHING IN DR. HABER'S RECENT TESTIMONY.

SO LET ME SEE IF I UNDERSTAND WHAT YOU ARE SAYING, FROM THE TIME HE CAME TO THE UNITED STATES WHEN HE WAS 18, TO THE TIME OF THIS MURDER, HE WAS 33, IS THAT CORRECT?

31. HE WAS 33 WHEN HE TESTIFIED AT TRIAL.

THAT THERE IS NO MENTAL HEALTH RECORDS OR INFORMATION ABOUT HIM DURING THIS.

NONE THAT WERE BROUGHT BY THE DEFENSE.

NOTHING AT ALL.

NOTHING BROUGHT FORWARD BY THE DEFENSE. HE HELD DOWN TWO JOBS. HE ACTUALLY DID A THIRD JOB ON THE SIDE. I SEE MY TIME IS OUT, BUT LOOKING AT THE RECORD AS A TOTAL, MR. DIAZ DID AS MUCH AS HE COULD, GIVEN THE INFORMATION HE HAD. HE WAS NOT GIVEN ASSISTANCE BY THE FAMILY. AND GIVEN THE NEW INFORMATION, THERE IS NO PREJUDICE.

CHIEF JUSTICE: THANK YOU VERY MUCH. ONE MINUTE.

I JUST NEEDED TO CLARIFY ONE POINT. MR. THAXTON IS DECEASED. THAT IS WHY HE WASN'T CALLED. I WANTED TO CALL THAT TO THE COURT'S ATTENTION. AS TO YOUR LAST QUESTION, JUSTICE QUINCE, THAT WAS PART OF DR. LOPEZ'S TESTIMONY, WITH RESPECT TO MR. ARBELAEZ'S HISTORY OF EPILEPTIC SEIZURES, ET CETERA, WHEN HE WASN'T IN THE UNITED STATES, SO IT WASN'T A COMPLETE --

WHAT WAS HIS THIS TRI, FROM THE -- WHAT WAS HIS HISTORY, FROM THE TIME HE GOT TO THE UNITED STATES. THE QUESTION IS WHETHER HE WORKED, WHETHER HE HAD A STABLE LIFE. GIVE US A THUMBNAIL, QUICK SKETCH.

HE DID HAVE SOME WORK. I MEAN, WE DISAGREE AS TO --

WHAT KIND OF PROBLEMS DID HE HAVE?

HE JUST HAD EVERYDAY PROBLEMS. CERTAINLY HE WAS DEALING WITH HIS EPILEPSY. HE WAS IN AND OUT OF HOSPITALS. HE HAD SOME MENIAL JOBS. YVES IN AND OUT OF HOSPITALS FOR EPILEPSY.

CORRECT.

DID HE HAVE ANY MENTAL HEALTH TREATMENT?

HE HAD SOME TREATMENT FROM DR. LOPEZ, THE DOCTOR WHO --

HE IS THE NEUROLOGIST, RIGHT?

HE IS THE NEUROLOGIST.

THANK YOU.