IT IS VERY O LD.

CHIEF JUSTICE: ALL RIGHT. YOU MAY PROCEED.

GOOD MORNING, YOUR HONORS , C HIEF JUSTICE PARIENTE , YOUR HONORS, GOOD MORNING . HILLIARD MOLDOLF ON BEHALF OF MR . ELLEDG E. I WATCHED MR . ELLEDGE PL EAD GUILTY IN F RONT O F JUDGE FUTYH AND GO INTO A SENTENCING PHASE THAT WE SOMEWHAT SCRATCHED OUR HEADS AT AND I AM HERE ARGUING , AFTER A 3 0- Y EAR CA REER IN BROWARD COUNTY , AS A MERE FACT OF AFTER 30 YEAR S THE STATE HAS NOT BEEN A BLE T O GET THIS RIGHT AND HAS NOT BEEN ABLE TO AV OID USING EVIDENCE THAT THEY DON'T PLAY FAIRLY WITH , THAT THEY CAN'T SEE M TO GET T HAT CORRECT , AND I AM ASTOU NDED , AND I WOULD LI KE TO START OUT , FIRST, WITH THAT BR AD Y CLAIM . THE BRAID CLAIM IS PREMISED BY THE USE OF DR . LE WIS. I WILL GET TO THE FACT THAT HE DID N'T USE D R . LEWIS , BUT UPON GETTING THE ASSIGNED TASK OF EVIDENTI ARY HEARING , I WAS QUITE ABLE TO CONTACTDR. LEWIS AND GET HER DOWN TO FLORIDA TO TESTIFY AT THE EVIDENTIARY HEARING AND SHE DID SO AND I TH OUGHT SH E PUT OUT WHAT , EXACTL Y WHAT SHE EXPECTED TO HAVE FOR HERSELF AND FOR MR . ELLEDGE AT THE TRIAL OR SENTENCING PHASE IN 1993.

SO HOW DO YOU EXPLAIN ALL OF HER RELUCT ANCE , IT SEEMS, IN THESE, AT OTHER POI NTS , IN NOT COMING? I MEAN , SHE WAS CALLED ON THE PHONE, AND SHE SAI D SHE WAS GOING TO SHOW UP AT T HENEXT HEARING . SHE DOESN'T SHOW UP AT THE HEARING, AND HO W DO YOU EXP LAIN ALL OF THAT FAI LINGTO SHOW UP AT PRE VIOUS HEARINGS?

I THINK IT IS QUITE CLEAR IF YOU LOOK AT THE TESTIMONY OF DR . ON GLY , HE SAYS THAT MR. LAS WELL BECAME DISENCHANTED WITH DR . LEWIS BEFORE MR. ONGLY GOT INVOLVED, BUT DR . LEWIS S AID I WAS PREPARED TO COME DOWN ON NOVEMBER 5 , ON THAT FRIDAY, AND THEN I GOT A CALL THAT I WASN'T BEING USED, AND SHE HAD SOME ACTUAL NOTES THAT WE PUT INTO EV IDENCE, THE EVIDENTIARY HEARING, SHE WROTE ON THE BAC K OF A N ENVELOPE AT HER DESK , BUT MORE IMPORTAN TLY TESTIFIED THAT I WAS TOLD I W OULD BE THERE ON THAT MOND AY , NOVEMBER 15. SHE SAID I WAS CALLED B Y DR . ONGLY WHO I HAD NEVER HEARD OF, O N THE 13th, AND HE SAID THERE IS SOME UP AND BACK . LASWEL THOU GHT YOU WOULD BE DETRIMENTAL AND I DIDN'T USE YOU, BUT THEN SHE SAID THAT IS EXACTLY RIGHT. I HAD NEVER HEARD OF HER .

HOW DO YOU DEAL WITH THE FACTS , WHICH FIRST OF ALL WE HAD A TRIAL JUDGE ACTUA LLY HAVING A CONVER SATION WITH THIS WITNESS, IS THAT CORRECT?

R I GHT.

SO THAT THERE IS REALLY UNIQUE OPPORTUNITY TO H AVE AN IN SIGHT INTO WHAT I S GOING ON , AND THEN THE REPRESENTATIVE, IF IUNDERSTAND IT CO RRECTLY , THE , OR AT LE AST IT WAS UNUS UAL TO ME , OF THE DOCTOR SAYING THAT SHE DIDN'T PREP ARE FOR THIS CASE AND THAT SHE WOULDN'T PREPARE , IT SO UNDED LIKE, UNTI L SHE WAS SI TTING IN THE HALL WAY OUTSIDE. I AM OBVIOUSLY OVERSTATING THAT, BUT HELP ME WITH THOSE TWO ASPECTS HERE , WHICH , CERTAINLY NOT BEING KNOWLEDGEABLE IN PREPARING , WHICH SEEMS TO BE A CONSISTENT STATEMENT THAT SHE MAKES, AND THEN THE FACT THAT THE TR IAL JUDGE , REALLY , HAD A PRETTY GOOD OPPORTUNITY HERE TO KNOWWHAT IS GOING ON, IN TER MSOF WHAT THE JUDGE ULTIMATELY DECIDED, BECAUS E THE JUDGE HAD THIS V ISIT WITH THIS PERSON. ISN'T THAT A LOT TO OVERCOME?

WELL , I DON 'T THINK SO , BECAUSE, I DON'T THINK SO IN THE SENSE THAT IT GETS TO MY IAC CLAIM, THE INEFFECTIVE CLAIM AB OUT MR. LAST WELL.I THINK MR . LASWEL THROUGHOUT THE COUR SE OF THIS TRIAL P ITTED THE COURT AGAINST HIS CLIENT, W HICH WAS CLEARLY IMPR OPER . THE REALITY IS THAT, THE COURT INTERACTING WITH AN EXPERT, AND LASWELL HAS SET THAT UP SO SHE IS CON FUSED . YOU GOT THE WITNES S ON THE PHONE AND CALL THE WITNESS , WHO HAS GOT INCONSISTENT ADVICE AND THEN SHE SAID I AM NOT GOING TO PREPARE BEFORE I GET DOWN THERE. I WORKED WITH DR. LEWIS AT THE EVIDENTIARY HEARING FOR THREE DAYS BEFORE SHE TESTIFIED, AND THAT IS AN ENORMOUS TIME TO PREPARE.

YOU STARTED OUT BY SAYING AND I ASSUME YOU AR E ON YOUR FIRST POINT THAT , THIS IS MORE EVIDENCE OF THE STATE 'S NOT ACTING PROPER LY. IS, WHERE , IS THE ISSUE O N DR. LEWIS DI RECTED AGAINST THE STATE?

I WAS GOING TO , AT T HEEND OF DR. LEWIS'S TESTIMONY ON PAGE 47 4 OF THE EVIDENTIARY HEARING, AT THE END 484 OF THE EVIDENTIARY HEARING, AT THE END OF HER CROSS-EXAMINATION BY MR . SATURDAYS. SHE HAS BEEN ON BY MR . SATS. HE PULLS OUT THE NEUROLOGICAL RE PORT REGARDING WHAT SHE HAS BEEN ASKING FOR SI NCE 1983 , IS THE PHOTO

NOW WE ARE T ALK B INGT ENG.

SHE HAS BEEN ASKING THAT FOR 15, 20 YEARS AND HERE MR. SATS HAS HAD IT ALL OF THE TIME IN THE PREPAR ATION OF THIS CASE AND TALKING ABO UT THE NEED FOR IT THAT IT WAS NEVER DONE AND THEN HE PULLS IT OUT AND CROSS-EXAMINATIONS HER WITH IT AND THEN WE FIND OUT THAT MR . SATS PUT THAT IN THE STATE MATERIAL SO WE COU LDN'T CROSS-EXAMINATIONHER ON IT , COULDN'T PREPARE WITH TOO. WAS IT FOUND THAT

WHAT WE DID IN THE COURT IS WE B ROUGHT IN ALL OF THE EXEMPT MATERIALS AND THE COURT WENT THROUGH IT AND SAID, IT IS IN THE EXEM PT MATERIALS.YOU NEVER HAD IT, AND MS. BAILLY SAID IN THE TRANSCRIPT WE CAN EXCLUDE I T FROM THE DEFE NSE AS EXEMPT MATERIAL AND THEN WE CAN STILL USE IT.

HOW IS IT THAT IT WAS REFERRED TO IN SOME OF THE TESTIMONY THAT IT WAS DONE AND IT WAS COMPLE TELY NORMAL?

IT WAS , AND THAT IS PA RT OF THE PROBLEM THAT I WASGOING TO ADDR ESS IS THAT, I F YOU LOOK , MR . SATS IS VERY GOOD AND I GIVE HIM A LOT OF CREDIT FOR THE LIABIL ITY TO KIND OF BOWL SOMEONE OVER O N CROSS-EXAMINATION.AS AN EXA MPLE , IF YOU LOOK AT DR. LEWIS'S CROSS-EXAMINATION, RELATIVE

LET ME STOP FOR A MIN UTE , BECAUSE WHAT WE ARE DOING NOW IS WE HAVE BROKEN DOWN WHERE WE ARE. WHY DON'T YOU TELL US WHICH POINT YOU ARE ON AND THEN GOAHEAD AND COMP LETE YOUR ARGUMENT ON, O KAY , WH ICH POINT IN YOUR BRIE F ARE YOU ON N OW?

I AM ON THE BRADY CLAIMS.I WANTED TO MAKE A POINT THEFACT THAT , LI KE MR . SATS SAYS, IT WAS A NO RMAL E EG , WE DON'T HAVE THAT . ALL WE HAVE IS A REPORT. WE NEVER SAW THE R AW DATE , THE POINT BEING IF THE STATE HAD GIVE N US THIS IN A TIMELY FASHION, WE COULD HAVE GONE BACK TO DR . NORMAN'S RECORDS , IN OTHER WORDS THE DEFENSE COULD HAVE GONE TO DR. NORMAN'S RECORDS EARLY ON WHEN THE REP ORT WAS GENERATED IN 19 93, WHEN THEY HAD NORMAN .

THERE IS NO RAW DA TA ON THE EE G?

JUST A SHORT REPORT FROM DR. NORMAN.

OLD NEARLY THAT IS WHAT PEOPLE RELY ON.

EXCEPT IF YOU LOOK AT DR .

ISN'T THAT EVIDENCE THAT IT WAS NORMAL AND THERE FOR IN CONSEQUENTIAL ISN'T THEREEVIDENCE HERE THAT THIS WAS IN THE TESTI MONY OF ONE OF THE EXPERT S?

IT WAS NOT REFERRED TO AT .

THERE IS NO TESTIMONY THAT THAT WAS DONE AND IT WAS NORMAL?

NOT THE EEG. HIS, THERE A DEPOSITION WHERE HE SAYS THE EEG WAS NORMAL.

THERE WAS ONE MORE YOU ARE SAYING THERE WAS MORE THAN ONE EEG?

WE DON'T KNOW.

WHAT IS YOUR V IEW?

THERE IS ONE EEG IS O URVIEW. A NORMAL EEG.

THERE WAS JUST ONE ?

RI GHT.

WELL, IF THERE WAS JUST ONE AND THERE WAS A REFERENCE TO THAT JUST ONE, THEN WHY DO ESN'T THAT INDICATE THAT IT WAS DISCLOSED? THAT EVERYBOD Y WAS AWARE OF IT?

WE WERE UND ER THE IMPRESSION THAT THERE WAS ONE, BUT THIS REPORT THAT WAS DROPPED ON US AT THE EVIDENTIARY HEARINGINDICATES THAT THERE WASMORE THAN ONE. THERE HAD BEEN MORE THAN ONE DONE BY DR . NORMAN BUT NO RAW DATA WAS PRODUCED BY THAT.

TELL ME WHAT IT IS IN THAT. YOU GO AHEAD.

I JUST WANTED TO FOLLOW-UP, TO CLARIFY THIS. IT APPEAR S THAT , DURING THE EXAMINATIONS, EEG'S WERE PERFORMED AND THERE WEREISSUES THAT AROSE WITH REGARD T O THE UNDER , H YPER VENTILATION AND PHOTO STIMULATION. CORRECT?

CORRECT.

AND WHAT LED TO THE PROBLEM IS THAT EVERYONE THAT LOOKED AT THESE , AND A DEPOSITION WAS COMING UP, AND IT APPARENTLY WAS FA XED TO SOMEONE JUST BEFORE THE DEPOSITION, THAT DID N'T HAPPEN?

NO.NO. NO.

DID IS NOT.

WHAT HAPPENE D WAS THE DEPOSITION WAS CONDUCTED. THE DEPOSITION OF DR. NORMAN JUST SAYS THERE WAS AN EEG DONE AND IT WAS NORMAL. NOTHING ABOUT PHOTO STIMULATED. NOTHING

DID HE S AY THAT IT WASNOT DONE UNDER HYPER VENTILATION AND THE PHOTO STIMULATION?

THE ISSUE WAS NEVER APPROACH. IT IS IN MY - - WAS NEVER BROACHED. IT IS IN MY OBJECTION TO THE DOCUMENT COMING IN BY DR. SAXON. HERE IS THE DEPOT. READ IT. THERE IS NO ME NTION OF IT BY LASWELL AND ONGLY . DID YOU DO A PHOTO STIMULATED, DID YOU DO AN EEG , DID YOU DO A HYPERVENTILATED IS WHAT LEWIS HAD BEEN ASKING FOR, SO WHAT I WAS TRYING TO GET TO IS THE REPORT T ALKS A BOUTIT, BUT IF YOU LOOK AT T HECROSS OF DR . LEWIS , FOR EXAMPLE A NEUROPSYCHOLOGIST DR. McMA HON , SHE SAID IT WAS NORMAL AND DR. LEWIS SAYS LET ME SEE THAT AND HE SAYS IT WAS NORMAL . HE IS A LSO SAYING THAT FRAGMENTED PSYCHOSIS AND THINKING AB NORMAL , SO WHEN THE SUMMARY OF WHAT Mc MAHON SAID, I AM SAYING

CAN I ASK YOU A QU ESTION? I THOUGHT THAT AN EEG WAS A N ELECTRICAL TEST THAT SHOWS LITTLE LINES ON A P IECE OF PAPER AND IT IS N OTSOMETHING THAT IS A DISCUSSION, SO WHAT IS THIS ABOUT I FIND THAT HE IS INCOHERENT IN A DISCUSSION ABOUT? I AM MI SSING SOMETHING HERE.

NO. I WAS TALKING ABOUT A NEUROPSYCHOLOGIST.I WAS JUST COMP ARING THAT M R . SATS HAS A REPORT THAT SAYS NORMAL, BUT IF YOU LOOK AT THE RAW DATA BEHIND IT A NDSAY THAT ALTHOUGH DR . NORMAN FOUND THAT IT WAS NORMAL SO TO SPEAK, WHEN WE LOOK AT I T WE FIND SI GNS OF FR ONTAL LOBE DAMAGE THAT THE NEUROLOGIST DIDN'T PICK U P ON THAT WE ARE LOOKING FOR THAT THE NEUROL OGIST DIDN'T SEE, AND SHE WAS REALLY EMPHATIC ABOUT IT AND SA ID I WOULD LIKE TO SEE SOME MORE, A PET SCAN , AND PHOTO STIMULATED, SHE SAID I WOULD LIKE TO DO A PT SCAN .

YOU ST IL L ANNOUN CED THE PREJUDICE ASPECT, AND I GET BACK, THIS IS A CRIME THAT HE PLED GUILTY TO AND WE ARE NOT TALKING ABOUT TRYING TO WITHDRAW HIS PL EA, RIG HT? HE PLED GUILTY OVER 30 Y EARSAGO.

CORRECT. CORRECT.CORRECT.

AND IT WAS A PLANNEDCRIME. IT WASN'T A SP UR OF THE MOMENT CRIME. HE SAID HE WAS GOING TO KILL THIS GUY.

NO.NO. IT WAS A RAPE OF MARGARET STRAP, A WOMAN IN A M OTELROOM WITH HIM THAT WAS AN UNPLANNED , JUST , HE S AYS THAT, MATTER OF FA CT ONE OF THE PSYCHOLOGIST TR IED TO SAY IT WAS A RAGE REACT ION IN RESPONSE TO HER NOT WANTING TO HAVE SEX AT S OME POINT AND THAT WAS GETTING INTO MY IEC CLAIM, SO IF I CAN MOVE OFF THE BRA DY CLAIMFOR A MOMENT AND GO TO THE INEFFECTIVE CLAIM AS TO MR . LASWELL WITH RESPECT TO CALLING THE TWO DOCT ORS, IF YOU HAVE THE HISRY TRIHISTORY OF WHAT HE D IDWITH RE GARD TO THE EXP ERTS, HE HIRES A NUMBER OF EXPE RTS , DR. BLO CK GARFIE LD, WHO GIVES HIM A RE PORT THAT SAYS THAT MR. ELLEDGE IS BASICALLY A PERSONALITY DISORDER SOCIOP ATH IF YOU WILL, AND MR . LAS WELL SAYS THAT IS CONFIDENTIAL. I BURY THAT BECA USE IT IS NOT GOING TO BE HELP FUL , NOT GOING TO GIVE ME A MENTAL DISORDER OR 9214 -B OR 6 - F. I CAN 'T USE HER AND HE SPECIFICALLY LIST S A NEUROLOGIST AND DO ESN'T HAVE A DEF ENSE AND LET' S MR . S ATS TAKE A DEPOT AND DOES N'T USE IT, SO HE BUR IES ONE DOCTOR TAKE IS NOT GOING TO HELP HIM, DR . NORMAN AND S KIPS ANOTHER DR. AND ULTIMATELY USES THAT CATEGORY OF WIT NESSES, BUT IF YOU LOOK AT DR . GREEN, THE JUDGE FOUND THAT THOSE TWO DOCTORS WERE NOT BO ARD CERTIFIED. THEIR OPIN IONS WERE NOT ONLY DIVERSE BUT IN CONF LICT WITH EACH OTHER TO THE EX TENT THAT HE GAVE Z ERO WEIGHT TO THE DOCTORS. NOW, CERTAI NLY A LAWYER PRACTICING LIKE MR. LASWEL HAS FOR 30 YEARS, IF NOT HING ELSE, WOULD CALL JUST O NEDOCTOR, WHO , NOT A L LOW YOUR SECOND EXPERT , YOUR OWN SECOND EXPERT, THE S TATEDOESN'T HAVE TO DO ANY THING AFTER THAT, THE JUDGE FINDS THAT THE SENS E OF PUTTING ON TWO DOCTORS CANCELLED EACH OTHER OUT. ONE FOUND A RAGE REACTION AND THE OTHER DISAGREED IT WAS NOT A RAGE REACTION , SOME EVIDENCE OF ORGANICITY , BUT IN CROSS-EX AMINATION , THE DOCTOR REC EDES AND AGREES WITH MR. SATS THAT IT MIGHT BE MILD ORGANICITY , BUT I T CAN'T B E SUPPORTED B Y THE EVIDENCE, WHICH IS THAT HE COULD CON TROL HIMSELF. THERE WAS NO OUT OF CONT ROL.

HOW WOULD YOU RESPOND TO IT? IT APPEARS THAT , IN THE EVALUATION, THAT ESSENTIALLY THE TRIAL JUDG E WAS NOT , REALLY, R ULING ON OR DIDN'T FIND INCONSISTENCIES TO BE OF ANY MOMENT AND, REALLY , DIDN'T FIND THE FAIL URE OF BOARD CERTIFICATION TO BE OF ANY MOMENT, REALLY, I N THE FINAL , IN THE DETERMINATION , BUT FOUND THAT THE DIAG NOSIS AND THE PROBLEMS THAT THEY HAD WERE IN CONFLICT WITH AND CONTRA DICTED BY THE FACTS OF THE CASE AND THEEVIDENCE THAT THE TRIAL JUDGE HAD BEEN THERE AND LISTENED TO ? HOW WOULD YOU RESPOND T O THAT?

I THINK THAT IS ACCURATE , TOO. I THINK MR. LAST WELL CALLS TWO DOCTORS WHO ARE NOT PREPARED TO HAVE O R WEREN'TPREPARED TO TAKE THE FAC TS OF THE CAS E AND HAVE THEIR OPINION DOVETAIL, IF YOU WILL, OR COINCI DE. IN OTHER WORDS, HE PU TS ON EXPERTS WHO CAN'T JUST IFY THEIR OPINION AND THEIR DIAGNOSIS TO THE FACT S OF THE CASE! AND THAT IS WHE RE I THIN K DR . LEWIS, HE HAD DR . LEWI S. SHE IS BOARD CERTIFIED PSYCHIATRIST SINCE 19 72 , AND THE FACT THAT , AS SHE DESCRIBES IT, WE GOT OFF T HERAILS IF YOU WILL , THAT SHE AND I GOT OFF THE RA ILS, AND I TURN IT OVER TO DR . ONGLY, THE FACT IS THAT DR. LEWIS WAS THE EXPERT THAT SH OULD HAVE BEEN USED. SHE WAS CL OSEST IN T IME TO THE INCIDENT , SAW MR. HE WILL EVENLY IN PRISON IN 1983, SOME EIGHT YE ARS AFT ER THE CRIME AND HAD HAD A HISTORY WITH HIM FOR T HAT LENGTH OF TIME AS A SEAS ONED TRIAL LAWYER, DOING DEATH PENALTY WORK, YOU KNOW , I WILL DO WHATEVER IT TAKES TO GET THAT DOCTOR DOWN HERE .

HOW ABOUT , HOW DOES THE , FOR LACK OF A BE TTER TERM , PROFESSIONAL EMBARRASSMENTTHAT THE , THIS , THAT YOU ARE SUGGESTED THE PSYCHIATRIST HAD SUFFERED WITH, WITH REGARD TO , THERE SEEMS TO B E SOME UNDER CURRENT OF , THAT HER PROFESSIONAL JUDGMENT WAS SOMEWHAT UNDER MINED BY A DIAGNOSIS IN A CASE AND THEN PUBLICITY THE PATIENT HADSAID I REALLY DUPED THIS PROFESSION AND ALAN SOME RE PROFESSIONAL AND SOME RELUCTANCE, DOES THAT FAC TOR INTO AN ATTORNEY WA NTING TO CALL A WITNESS , WHEN THIS KIND OF THING HAD HAPPE NED?

INTERESTING THE SH AH CROSS CASE WAS IN 1991. DR. LEWIS WAS GOING TO BE USED IN 1993. IT IS CLEAR

TOGE THER. THAT IS THE PO INT .

IT IS CLEAR THAT AT THAT POINT , DR . LEWIS , THAT WOULDN'T BE SOMETHING THAT WOULD BE EVEN RELEVANT. IT IS NOT LIKE IN TRIAL MR . SAT S COULD HAVE B R OUGHT I T UP AND SAID DIDN'T YOU GET EMBARRASSED IN THE 1991 SHAW CROSS CASE. THAT HAD NO MOME NT IN T HETRIAL.IT IS NOT RELEVANT AND WOULD BE INADMISSIBLE EVID ENCE TO TRY TO SAY L I STEN , DIDN'T YOU BE EMBA RRASS ED IN ROCHESTER IN THE SHAH CROSS CASE. IT WOULD BE SOMETHING THAT WOULD BE IN THE SHAW CROSS CASE. IT WOULD BE SOMETHING THAT IS COMPLETELY IRRELEVANT .

HOW WOULD SOMEBODY THAT WOULD AND DEFENSE EXPERT , BE BRADY MATERIAL? YOU ARE SAYING THE STATE HAD IT.

WE NEVER HAD IT. I PUT MR . LASWEL ON AND MR . ONGLY ON.

HE SAID DIDN'T SEE IT?

HE SAID I DIDN'T SEE IT AND I CAN TELL THE COURT

HOW WAS IT FAVORA BLE TO THE DEFENSE?HOW IS IT EVIDENCE THAT WOULD BE HELPFUL TO T HEDEFENSE?

IT IS FAVORA BLE, IN THAT IF DR . LEWIS HAD IT IN 1993 , THERE IS A LOT THAT CAN BE DONE WITH THE RAW DAT A. IN OTHER WORDS, HELP ME

ON THE SURFACE OF WHAT YOU ARE TALKING ABOUT , IT IS A NORMAL EEG. NOW, TEL L ME HOW THAT IS EXCULPATORY.

I UNDERSTAND THE COURT. THE LANGUAGE OF NORMAN IS THAT IT IS NOT EXCULPATORY AT ALL, BUT I DON'T THINK IT HAS TO BE EXCULPATORY. IT CAN BE EXCULPATORY OR IMPEACHMENT FAVORA BLE TO THE DEFENSE.

IMPEACHMENT IS EXCULPATORY TO THE DEFE NSE, IN THE SENSE THAT IT BREAKS DOWN THE EVIDENCE AGAINST THE DEFENDANT.HOW DOES THIS FA LL IN THE BRADY CATEGORY AT YOU WILL AT A LL?

I THINK IT FALSE IN THE BRADY CATEGORY, WHEN YOU LOOK AT THE INEFFECTIVE CLAIM OF MR . LASWEL. THAT IS THAT MR . LASWEL L HAD A PH OTO STIMULATED EEG.

SO BRADY IS NOT INEFFECTIVE ASSI STANCE OF COUNSEL?

IT IS NOT NO W.

WHAT IS THE DEF INITION O F BRAIDY?

IT HAS TO BE FAVORABLE TO THE GOVERN MENT.

HOW IS IT FAVORA BLE?

FAVORABLE IN THE SENSETHAT IT COULD BE USED AT THE EVIDENTIARY HEARING. IF I HAD HAD THAT , I COULD SHOW THAT MR. LASWELL HAD BEEN INEFFECTIVE.

AM I W RONG OR IS IT FAVORABLE BECAUSE IT IS IMPEACHING OR EX-C ULPATORY , NOT FAVORABLE IN THE AIR BUT FAVORABLE FOR REASONS IT COULD HAVE BEEN USED F ORPURPOSES OF IMPEACHMENT?

FAVORABLE IN THE SENSETHAT IT COULD HAVE BEEN U SED AT THE HEARIN G.

CHIEF JUSTIC E: YOU ARE VERY MUCH INTO YOUR REBUTTAL.

MAY IT PLEASE THE COURT. MY NAME IS CARO LYN SNURKOWSKI FROM THE ATT ORNEY GENERALS OFFICE.AS I CAME IN, THE COURT NOTED THAT MY PAGES ARE YELLOW AND THIS HAS BEEN A LONG TIME I N THIS CASE.

ALONG THAT LINE .

I ASSUME D YOU WERE GOING TO ASK ME A QUESTION.

ALONG THAT LINE.

YE S, YOUR HONO RS.

I NOTE THAT THE , THIS CASE WAS LAST HERE IN , REHEARING DENIED IN 199 8. THAT THE CASE WAS THEN DENIED CERT, OCTO BER OF 1998. A MOTION WAS FI LED POSTCONVICTION, IN SEPTEMBER OF 1999. THAT THERE , APPARENTLY , A SECOND MOTION WAS FILED ON MAY 29 , 2001.

CORRECT.

NOW, D U RING THAT 18-MONTH PERIOD, WAS THERE A HEARINGIN THE TRIAL COURT?

THERE WERE HEARINGS WITH REGARD TO PUBLIC RECORD S. THERE WAS A , THIS WAS A VERY CONTENTIOUS PERIOD OF T IME WITH REGARD T O DEVELOPING PUBLIC RECORDS, YOUR HONOR .

HOW MA NY HEARINGS WERE THERE?

I DON'T KNOW. I WAS NOT PRESENT AT THOSEHEARINGS, BUT I KNOW T HAT THERE ARE VOLUMES , I SHOULDN'T SAY VOLU MES , B UT THERE ARE PAGES WITH REGARD TO THE NEED T O SE CURE PUB LIC RECORDS.THERE WERE SOME PRO BLEMS WITH THAT , AND IN FACT , THAT DID OCCUR. AND THAT RESU LTS , THOUGH , EXCUSE ME, THAT RESULTS , THOUGH, IN ONE OF THE ISSU ES ON DIRECT APP EAL HAD TO DO WITH PUBLIC RECORDS, IF I AM NOT MISTAKEN , AND I N POSTCONVICTION. IN POSTCONVICTION . BELOW. IT, BECA USE WE WERE ST ILL ARGUING ABOUT PUBLIC RECORDS , AT THE EVIDEN TIARY HEARING IN 20 02 , ON JULY 1 AND 3 OF 2002.

FINALLY , THE EVIDENTIARY HEARING IN THIS CASE , WAS I N JULY OF 2002.

CO RRECT .

SO HERE WE ARE , NOW , 31 YEARS A FTER THIS MURD ER.

THAT'S CORRECT, YOUR HONOR.

AND ACTUALLY , E IGHT YEARS AFTER JUSTICE BREYE R WR OTE HIS DISS ENT IN THIS CASE , SAYING THAT THIS CASE HAS GOT TO MO VE. IT IS TOO LONG AT 2 3 YEARS.

CORRECT.

OKAY .

BUT I MI GHT A DD , IF I A M PERMITTED TO DO SO IN RESPONSE TO YOUR NONQU ESTION , THAT ADMITTEDLY THIS CASE HAS TAKEN A PERIOD OF TIME, 30 YEARS TO GET TO THE POINT WHERE WE ARE AT T ODAY. HOWEVER , I F YOU LOOK AT WHAT HAS TRANSPIRED , I BE LIEVE NONE OF THE ACTIONS ALTHO UGH THERE WAS A STATEMENT TO THE CON TRARY THIS MORNING , NO NE OF THE ACTI ONS WERE DIRECTLY RELATED TO THE STATE. IF YOU LOOK A T THE ISSUES UPON WH ICH REVERSAL OCCURRED WITH REGARD TO THE FOUR OR THREE PREVIOUS RESENT ENCING , THEY HAD TO DO WITH A COURT ACTIO N.I AM NOT SUGGESTI NG OR TRYING TO LAY BLA CHLT JUST SAYING THERE IS JUSTIFICATION.

ONE OF THEM WAS A RICHARDSON VIOLATION.

NO.THE FAILURE TO COND UCT A RICHARDSON HEARING WITH REGARD TO THE RICHARDSON VIOLATION.

AS REGARDS THE RICHARDSON VIOLATION.

THAT'S TRUE BUT AT THAT TIME IT WAS REVERSIBLE E RROR NOT TO CONDUCT A RIC HARDSON HEARING.

BUT IS N'T THERE AN YTHING IN THIS 31 YEARS OF PRO CESS , THAT YOU CAN FIX UPON , THAT WAS ATTRIBUTABLE T O THEDEFENDANT, AS FAR AS THIS CASE HAVING TO BE TRIED FOUR TIMES. PERHAPS THE , THIS MOST RECENT DELAY IN FILING THE SHELL MOTION ,, COULD BUTT OTHER PART CANNOT, CAN IT?

WELL , YOUR HONOR, I UNDERSTAND WHAT THE COURT IS SAYING AND HOW THERE HAVE BEEN CONCERNS B Y THE COURT, BUT, AGAIN, I THINK WHAT IS ARE IMPORTANT TO LOOK AT , IS WHAT IS IMPORT ANT TO L OOK AT IS THE PROCESS HAS N OTBROKEN DOWN. THE PROCESS WORKS. AN INDIVIDUAL HAS T HEOPPORTUNITY TO APPEAL THE CORRECTNESS OF THE JUDGMENT AND SENTENCE THAT HAS BEEN ENTERED HARNTION IN FACTTHAT HAS OCCURRED IN T HIS CASE, AND BECAUSE ERROR HAS BEEN FOUND , MA TTER G OES BACK. THIS IS NOT A SIT UATION WHERE AN INDIVIDUAL HAS NOW BEEN SOMEHOW HARMED BECAU SE THEY CANNOT DEFEND AGAINST A CHARGE AGAINST TH EM. THIS IS NOT A BAR KER V ERSUS WING-TYPE OF CONSTITUTIONAL WINGO TYPE OF CONSTITUTIONAL ISSUE. WE ARE TALKING ABOUT SENTENCINGS, AND IN FACT AS TIME WENT ON THE MITI GATION INCREASED.WE HAVE ENHA NCED THE MITIGATION, W ITH REGARD TO THE NATURE OF TIMING BECAUSE THE AGGRAV ATING FACT ORS H AVE NOT CHANGED, BUT THE MITIGATION HAS BEEN ENHANCED , AND IN FACT NOT THAT T HEVOTES ARE IMPORTANT BUT THEY HAVE BEEN RELATIVELY CONSISTENT WITH REGARD TO INJURIES RECOMMENDING AFTER HEARING, EVEN MOR E AND MOR E EVIDENCE , JU RIES RECOMMEND WITH REGARD TO JUR IES RECOMMENDING AFTER HEARING , EVEN MORE AND MORE EVIDENCE , JURIES RECOMMEND ING . IN OCTO BER OF 194 , HE WRO TE A LETTER SA YING THAT HE WAS GOING TO DO AN EEG AND IT HAD TO DO WITH THIS PH OTO , WHATEVER THE TECHNICAL TERMS ARE FOR THAT, AND THAT IN FACT IT WAS TO BE DO NE. THAT WAS FOUND IN THE F ILE OF MR. LASWELL , AND IN F ACT I THINK THE PRESENTATION THIS MORNING HAS KIND OF CONFUSED THE ISSUES. THERE ARE TWO SEPARATE ISSUES, ONE HAVI NG TO DO WITH THE BRADY ISSUE AND DR . NORMAN AND HOW THE S TATESECURED A REPORT THAT IT WAS ENTITLED TO HAVE , IN A FAX TRANSMITTAL FROM THE DOCTOR'S OFFI CE TO THE STATE ATTORNEYS OFFICE , GIVING THEM A REPORT AFTER IT WASMADE KNOWN THAT HE WAS GOINGTO BE DEPOSED , DR . NORMAN. HE WAS A WITNESS FOR THE DEFENDANT. HE HAS A L WAYS BEEN A DEFENSE WITNESS.THEY HAVE ALWAYS HAD THEOPPORTUNITY TO TALK WITH THEIR WITNESS.

IT SEEMS TO ME THAT AT LEAST THE UNDERLYING ALLEGATION SEEMS TO BE THAT , SOMEHOW THE STATE GOT SOME REPORT FROM EVEN THE DEFENSE WITNESS , THAT THE DEFENSE NEVER GOT.

I DON'T BELIEVE THE RECORD BEARS THAT OUT, BECAUSE I THINK THE TESTIMONY AT THE EVIDENTIARY HEARING , REFLECTS THAT, BOTH MR. LASWELL AND MR . ON GLY COULDN'T RECALL WHETHER THEY HAD EVER RECEIVED THOSE REPORTS NOT THAT THEY DID N'T.

WAS HE A CONFIDEN TIAL DEFENSE WITNESS?

NO.HE WAS LI STED AS A WITNESS FOR THE DEFENSE.

WHO NOTICED HIM FOR THE DEPOSITION?

I BELI EVE THAT THE STATE DID.

SO IT WAS THE STATE'SDEPOSITION.

CORRECT.

AND HE WAS NEVER CALLED AS A WITNESS IN ANY OF THE SENTENCE, IN A NY OF THE SENTENCING HEARINGS?

NO, YOUR HONOR.

AND THER E WAS NO , I MEAN , THE ISSUE ABOUT THIS EEG BEING NORMAL , THERE WAS

THAT, YOU KNOW , IT IS NOT A SURPRISE. EVERYBODY WHO HAS TA LKED , EVERYBODY, EVERY DO CTOR , I SHOULDN'T SAY EVERYBODY , EVERY DOCTO R THAT HAS INTERVIEWED THIS INDIVIDUAL,HAS FOUND THAT, IN FACT , THERE IS NO BRAIN DAMAGE, AND THAT IS WHAT , DR . NORMAN IS A NEUROLOG IST. THAT IS WHAT HE WAS PURCHASED FOR.HE WAS SU PPOSED T O GO I N THERE , DO THE TESTING FOR THIS BY MR . LASWELL AND MR . ONGLY AND HE DID THAT AND HE REPORTED BACK TO THEM.

HE IS NOT A NEUROPSYCHOLOGIST.

HE IS A NEUROLOGIST .

HE DID A FUL L NEUROLOGICAL EX AM OF HI M AND AN EEG?

HE DID AN EEG AND DR . TODD, WHO DOES A RE PORT AND I AS SUME HE IS AN ASSOCIATEOF DR. NORMAN BUT I DON'T KNOW , BECAUSE IT SEEMS L I KE THEY ARE COMING FROM THE SAME OFFI CES, AND HE DID THE MRI ON MR. ELLED GE.

IS THERE A RE PORT THAT WAS ALSO, AND AN MRI ?

YES. YES. AND NO CL AIM THAT T HOSE WERE

NO.THE MRI WAS MADE AVAILABLEON THE SAME D AY AND THE DEFENDANT SAID THEY SAW THAT , EXCUSE ME, NOT THE DEFENDANT , MR. LASWELL AND MR . ONGLY SAID THEY SAW THAT.

WAS IT IN THE TESTIMONY?

ACTUAL LY IT WAS IN DR . SCHWARTZ'S TESTIMON Y THAT HE HAD SEEN THE EEG THAT WAS DONE A MO NTH EAR LIER BY ANOTHER DOCTOR AND REFLEC TS THAT THAT WOULD HAVE BEEN DR . NORMAN'S EEG AND IT WAS NORMAL.

DE SAY THAT, THAT IT WAS NORMAL?

IT WAS NORMAL AND H E SA ID THAT, YES.

IN HIS TRIAL TESTIMONY?

YES. IT CAME U P.

WHEN THIS C AME U P IN THE MOST RECENT HEARING, W ASTHERE A REQUEST, THEN, FOR A RICHARDSON HEARING OR SOMETHING? A IN OTHER WO RDS

NO. THIS CAME AT THE END OF THE TESTIMONY. EVERYTHING HAD TO DO WITH THE EFFECTIVENESS OF COU NSELWITH REGARD TO MR. LASWELL AND MR. ONGLY 'S REPRESENTAT ION.IT HAD TO DO WITH THE DIFFICULT ANY SE CURING DR . LEWIS. DR. LEWIS DID COME DOWN FOR THIS EVIDENTI ARY HEARING , AND AT THAT TIME WHEN SHE WAS ON THE STAND, THE PRLT OR CROSS-EXAMINED HER WITH REGARD THE PROSECUTOR CROSS-EXAMINED HER WITH REGARD TO WHAT KNOWLEDGE SHE HAD WITH REGARD TO THIS CASE AND HOW SHE HAD PRE PARED , BECAUSE , A GAIN, HER WILLINGNESS TO COME TO FLORIDA WAS THE ISSUE NOT WHAT SHE KNEW OR WAS GOING TO TESTIFY TO , BECAUSE I T WAS AN ISSUE AS TO WHAT MR . LASWELL AND DR. ONGLY WA NTED HER TO DO. HER V IEW PURPORTEDLY WAS THAT SHE WANTED TO HAVE ALL OF THE DOCTORS' REPORTS SO THAT SHE COULD GIVE HER OPINION AND WHAT THEY HAVE SAID AND GOES REPEA TEDLY WITHOUT DISP UTE , IS THAT THEY WANTED TO HAVE HER TESTIFY BECAUSE SHE HAD EXAMINED MR. EL LEDGE IN 19 83 AS PART OF A SUBJ ECT STU DY AND IT WAS PART OF H ERSUBJECT STUDY THAT ANYBODY THAT HAD EVER HAD A BU MP ON THEIR HEAD, HAD BRAIN DAM AGE, AND THAT WAS THE CORE OF WHAT SHE WOULD HAVE PRESENTED AND THAT IS W HAT THEY WOULD HAVE WANTED HER TO TESTIFY ABOUT , IS HER EXPERTISE AND HAVING G ONE THROUGH WITH HIM WITH THIS STUDY AND THAT IS WHAT THEY WANTED TO LIMIT IT TO. SHE WAS NOT WI LLING TO COOPERATE WITH THAT. ANYWAY, I FOR GOT WHERE IWAS.

ONE IS AT THE END OF MR . SATS , SAYS, WELL, LOOK, HERE IS A NORMAL EEG. THIS IS NOT A BRAIN DAMAGE OR SOMETHING LIKE. THAT ANOTHER PO INT IS SHE WAS BEING CROSS-EXAMINED BY THE STATE ATTORNEY , AND AT THE POINT IN TIME THEY WERE TALKING ABOUT THE EEG AND OTHER, OR A TEST , AND THIN GS THAT SHE SH OULD KN OW ABOUT , AND MIRACULOUS LY, SHE K NEW ABOUT THE EEG AND SHE WAS MAKING STATEMENTS, AND AT THAT POINT THERE WAS AN OBJECTION MAD E AND THEN WE HAD THIS DISCUSSION ABOUT HOW POSTCONVICTION COUNSELDIDN'T HAVE THIS PARTICULAR TEST , AND MIRACULOUSLY AS I HAVE INDICATED IN MY BRIEF , AT THE END OF THIS DISCUSSION, DR. LEWIS SUDDENLY FORGOT EVERYTHING SHE HAD SEEN OR HEAR D OR KNEW AND SHE COULDN'T REMEMBER IF SHE HAD SEEN AN EEG, BUT THE RE CORD , I THINK , BEARS OUT THAT SHE WAS A WAREOF IT, AND THE STATE HAS

I GUESS WHAT I AM A SKING YOU IS AT THAT POINT DID , WAS THERE A REQU EST FOR A RICHARDSON HEARING?

NO.NO. NO. WELL, NO. NOT IN THE POSTCONVICTION. THIS IS POSTCONVIC TION. WE ARE NOT TALKING AB OUT THE TRIAL. WE ARE TALKING ABOUT A POST CONVICTION PROCEEDING,WITH REGARD TO WHETHER THE ALLEGATION WAS THAT POSTCONVICTION COUNSEL WAS NOT MADE AND GIVEN THIS INFORMATION BECAUSE OF SOME DISCOVERY VI OLATION , BUT THE BOTTOM LINE IS THIS , IS AGAIN, I CAN'T EMPHASIZE TOO MUCH , THIS WAS A DEFENSE WITNESS. HE HAD THESE INDIVIDUALS , AND WHEN GIVE N AN OPPORTUNITY, HE NEVER CA LL EDDR. NORMAN. THIS, THAT

I AM NOT SURE, HE WAS GIVEN AN OPPORTUN ITY AT THIS PARTICULAR EVIDENTIARY

BECAUSE WE HAD ANOTHER HEARING, WE HAD A LITTLE HEARING AT THE END OF OUR POSTCONVICTION HEARING, TO DISCERN WHAT EXACTLY WE NT ON AND HOW THIS INFORMATION CAME ABOUT.

SO THAT WAS WHAT I WAS ASKING. IT WASN'T CALLED A RICHARDSON HEARING BUT SOMETHING DID GO ON.

YES AND I DON'T WANT TO QUALIFY IT AS RICHAR DSON , BECAUSE I DON'T WANT TO ACQUIESCE ON THE NOTION OF HAVING SOME SORT OF BRADY VIOLATION BUT , NOT A B RAID VIOLATION BUT

DR . NORMAN COULD HAVE BEEN CALLED TO EXP LAIN

RIGHT.

THAT THIS WAS REAL LY A VERY SIGNIFICANT TEST OF SOME SORT.

CORRECT , COR RECT , O R FOR THAT MA TTER WHAT , EXA CTLY , HE DID. WE ARE GETTING CAUGHT U P ON THE NOTION OF WHAT THE TEST WAS. THAT IS NOT THE ISSUE BE FORE THIS COURT IN TRUTH. THIS COURT HAS SAID A NUMBER OF TIMES, YOU ARE NOT A TRIER OF FACT.YOU ARE A TRIER OF THE LAW AND AND WHAT THE RESOLUT IO N OF IT IS, SO CERTAINLY THE EVIDENTIARY HEARING OR T HEDETERMINATION OF WHAT THE FACTS WERE WITH REGARD , WERE POSED WITH THE TRIAL COURT NOT HERE.

BUT YOU WOULD, AND I THINK THAT THE , THE ARGUMENT WAS STARTED WITH , HERE IS ONE MORE EXA MPLE O F SOMETHING THAT THE STATE HASDONE. JUST LET ME FINISH.

RIGHT.

SO IT WOULD B E SIGNIFICANT , IF THIS WAS SOMETHING THAT WAS WITHHELD FROM THE STATE, EVEN IF I T WAS LESS THAN HELPF UL OR NOT , IT MIGHT BE SIGNIFICANT TO OUR ANALYSIS. YOU ARE JUS T, AG AIN , REEMPHASIZING THAT THERE I S PROBABLY KNOW WA Y THAT THIS COULDN'T HAVE BEEN IN MR . LASWELL'S POSSESSION, IF IT WAS HIS EXPERT AND HE WAS AT THE SAME DEPOSITION.

RIGHT. WELL, I THINK, WELL , DR . ONGLY WAS ACT UALLY T HEDEFENSE LAWYER WHO ATTENDED THE DEPOSITION. THEY SHOULD HAVE KNOWN.

MADE IT AVAILABLE.

RI GHT, AND I THINK THAT IS THE PROBLEM WE HAVE WITH THESE KIND OF LOOSE LANGUAGE WITH REGARD TO ALLEGATIONS ABOUT WHAT THE STATE HAS DONE IN THIS PARTICULAR CASE AND THE TIME PERIODS TAKEN. AGAIN , THE STATE CAN'T OVEREMPHASIZE THE FACT T HAT THIS IS NOT A CASE WHERE IT HAS BEEN WRONGFUL STATE ACTION WITH REGARD TO THE DELAYS. THERE HAS BEEN A LO T OF ACTIVITY IN T HIS CASE. IF YOU LOOK AT EVEN THE V ERY FIRST TIME THIS CASE WAS REMANDED FOR A NEW SENTENCING HEARING, IT WAS BECAUSE OF A QUESTION AS TO WHETHER, IN FACT, THE GAFFNEY MURDER , WHI CH WAS THE SECOND MURDER WHICH HAD NOT BEEN TRIED YE T, COULD BE USED, A PRIOR VIOLENT FELONY,AND THE LAW AT THAT TIME WASNO, BECAUSE A CONV ICTION HAD NOT OCCURRED.

WOULD YOU CE MENT COMMENT ON THE CLAIM THAT COUNSEL WOULD YOU COMMENT ON THE CLAIM THAT COUNSEL WAS INEFFECTIVE BECAUSE HE PRESENTED TWO EXPE RTS THAT CANCELLED EACH OTHER OUT.

I THINK IT IS VERY CLEAR IN THIS RECORD , TALKING ABOUT DR . SCHWARTZ AND D R . CADEY . WE FOUND AND HIS WHOLE CHILDHOOD CAME OUT THRO UG H THE TESTIMONY. THE DEFENSE HEARD, EVEN I F THERE MIGHT BE CONF LICT, WHICH ALWAYS OCCURS WITH REGARDS TO DOCTORS GIVING THEIR TESTIMONY AS TO WHAT THEY BELIEVE MA Y BE THE MEDICAL OUTCOME OF AN INDIVIDUAL'S HISTORY A NDTHAT IS OUTWEIGHED BY THAT , BUT HERE THEY PRES ENTED MEDICAL HISTORIES AND FA MILY HISTORIES OF HOW THEY GOT T O THEIR END RESULT. THE DISCREPANCIES OF THAT OCCURRED, H AD TO DO WITH FETAL ALCOHOL SYND ROME , IS WHAT THE STATE RECALLS BEST OF ALL, AND THAT IS DR . SCHWARTZ THOU GHT THAT, BECAUSE THE MOTHER WAS AN ALCOHOLIC AND THERE WAS REPLETE EVIDEN CE AS TO HER DRINKING AND CAROUSING AROUND AND HER PROBLEMS, THAT, IN FACT, AND HE WAS A BLUE BABY , MR . E LLEDGE WAS A BLUE BABY AND UNDER WEIGHT AND ALL OF THAT IS , THAT HE HAD FETAL ALCOHOL SYNDROME. DR. CADEY SAID, NO , HE DIDN'T THINK THAT , BECAUSE THERE WAS NO PHY SICAL EVIDENCE OF THAT. THERE IS A MAR KED PH YSICAL EVIDENCE WHEN YOU HAVE FETAL ALCOHOL SYNDROME, AND THAT DID NOT EX IST. THAT WAS THE BIGGEST DISCREPANCY WITH REGARD TO THE DIFFERENCES IN THIS TESTIMONY , BUT , AGAIN , EVEN IF THERE WERE OTHER DISCREPANCIES AND I AM NOT SAYING THERE ARE BUT ASSUMING FOR THE MOMENT THERE ARE OTHER DISCREPANCIES WITH REGARD TO THEIR TESTIMONY, THAT IN AND OF ITSELF WOULD MEAN THAT MR . LASWELL WASN'T INEFFE CTIVE FOR NOT PRESEN TING THE M. HE TO OK GREAT OPPORTUNITY TO HAVE THEM PRESENT TO THE JURY, ALL THE MITIGATION WITH REGARD TO MR. ELLEDGE. IN FACT , THERE WERE 21 WITNESSES AND THEY ALL CORROBORATED WITH ONE ANOTHER WITH REGARD TO THIS HORRENDOUS LI FE THIS INDIVIDUAL HAD AS A YOU TH AND AS A CHILD AND WHAT WAS GOING ON IN HIS LIFE , AND S O THAT, ALL , CAME BE FORE T HEJURY, S O TO SUGGEST THAT, BECAUSE THE NUANCES OF THE DOCTOR'S REPORTS ARE SOMETHING VARIED, THAT IN AND OF ITS ELF DOES N OTQUALIFY AS A LAWYER RENDERING INEFFECTIVE ASSISTANCE OF COUNSEL. HE HAD TO G O WITH THE BEST HE GOT. THIS INDIVIDUAL , MR . LASWELL, WHEN HE TOO K ON THIS CASE FOR THE FOURTH RESENTENCING , CAME IN. HE HI RED.HE WENT AND TALKED TO TREATY BLOCK CRAWFORD , GARF IELD , EXCUSE ME, WHO SAID THAT, YOU KNOW, YOU DON'T WANT T O CALL ME.I AM NOT GOING TO GIVE YOU ANYTHING GOOD TO SAY. HE SECURED A NEUROLOGIST. HE SECURED TWO MORE DOCTORS. HE KN EW ABOUT DR . SCHWARTZ AND ABOUT DR . CADEY. HE HAD A WHOLE HISTORY , BECAUSE PE TER GIAGAMO H ADBEEN THE DEFENSE LAWYER PREVIOUSLY. HE HAD GOTTE N ALL OF H ISFILES.IT IS NOT LIKE THIS MAN DIDN'T DO ANYTHIN G. HE WENT OUT THERE AND GOT AULT RECORDS, HAD THE PRISON RECORDS FROM CALIFORNIA , SOME RECORDS FROM COLORA DO. THERE HAD BEEN DOCTORS IN THE EARLIER YEA RS, WHO HAD EXAMINED HIM, DR. MILLER AND DR. EGG BE RT, SO ALL OF THOSE AND DR . E G BERT , SO HE HAD ALL OF THIS INFORMATION AVAI LABLE AND HE DID PRESENT ALL OF. THAT THERE ARE A NUMBER OF OTHER ISSUES THAT I AM NOTGOING TO ADD RESS. MOST OF THEM ARE NOT PRESERVED FOR REVI EW BECAUSE THEY EITHER COULD HAVE BEEN RAISED ON DIRECT APPEAL A NDWERE NOT , OR THEY WERE ALREADY ADDRESSED. THE STATE WOULD UR GE THAT THIS IS THE FOURTH SENTENCING PROCEEDING, AND THAT THE STATE SHOULD AFFIRM OR THE COURT SHOULD AFFIRM. THANK YOU.

CHIEF JUSTICE: REBUTTAL.

I WANT TO ADD RESS JUST A COUPLE OF THIN GS . PAGE 5 55 OF THE TRANSCRIPT OF EVIDENTIARY HEARING , THIS IS WHAT YOU CALL THE RICHARDSON HEARING THERE. IS NO RICHARDSON HEARING BECAUSE THERE IS NO DISCOVERY RULES WITH AN EVIDENTIARY HEARING , BUT EFFECTIVELY IT WAS THE SAME THING.I AM TALKING, AND 555 , LINE 5, I START AND I SAY , I HAVE NORMAN'S DEPOT IN MY HAND AND I AM SAYING THE DEPOSITION OF DR . NORMAN,WHICH IS THE ONLY THING I HAVE OF DR . NORMAN, DOES N' T HAVE ANYTHING ABOUT A PH OT O SENSITIVE.I DON'T KNOW IF WE MOVED IT. AND I MOVED IT I NTO EVIDENCE AT THE EVIDENTI ARY HEARING, BUT I AM SAYI NG IT IS THE ONLY THING I HAVE. IF YOU LOOK TO

YOU WOULD AGREE IT IS NOT WHAT YOU HAVE IN N EWERPOSSESSION.

IT IS WHAT THE DEFENSE HAD.

I WAS GO ING TO GO RIGHT TO THAT. IF YOU LOOK AT OUR REPLY BRIEF, O N PAGE 4 OF OUR REPLY BRIEF , WE QU OTE THERECORD, THE COURT FI NDS , I DON'T THINK IT TA KES A ROCKET SCIE NTIST TO FIGURE OUT IT WAS PART OF THE STATE'S FILE, THIS L ETTER THAT MR . SATS CROSS-EXAMINED WITH, IF WE LOOK AT THAT

WOULDN'T YOU ORDIN ARILY , IF THE EEG WAS ORDERED B Y OR DONE BY OR INTERPRETED BY A PARTICULAR PHYSICIAN OR EXPERT, WOULD N'T YOU C ALL THAT EXPERT, THEN , AND SAY WHAT IS THE SC OOP , BECAUSEWE ARE CLAIMING THERE WAS AN EEG DONE AT YOUR DIRECTION AND BY YOU OR WHATEV ER.

I HEARD

AND THAT WE NEVER GOT IT.

HERE IS THE PROBLEM. WE NEVER SA W THIS COMING BECAUSE NORMAN, ALL I KNEW WAS THAT NORMAN HAD A NORMAL , REGULAR EEG. SATS DROPS THIS ON US AT THE END OF THE EVIDENTIARY HEARING.

HOW DID DR . LE WIS KNOW ABOUT IT THEN?

SHE DIDN'T.

SHE TESTIFIED AND I AM READING FROM 30 5 OF T HETRANSCRIPT, THE QUESTION, YOU HAD INDICATED THAT YOU WANTED AN EEG WITH HY PER VENTILATION AND PHOTO STIMULATION.HER ANSWER , KRECHBLINGTQUESTION, DO YOU REALIZETHAT WAS, TH AT WAS DONE O N OCTOBER 4, '93 . ANSWER , THERE IS ON OC TOBER 4, ' 93, I WAS GOING TO SAY , I THOUGHT THAT DR . NORMAN ORDERED THAT. QUESTION, AND IT WAS NORMAL . ANSWER, IT HAD SOME REFERENCES IN IT, TO SAY THAT IT IS PROB ABLY NORMAL. IT HAD SOME ABNO RMAL ACTIVITY, ET CETERA. SHE GOES ON AND QUOTE S WHAT THE EEG REP ORT, SO IF YOU DIDN'T HAVE IT AND YOU DIDN'T GIVE IT TO HER , SHE HAD TO HAVE HAD IT AT SOME EARLIER TIM E, TO KNO W WHAT THE REPORT SAYS.

WHAT I AM TR YING TO TELL YOU IS THAT IN THAT HEARING , THIS WAS LIKE TWO DAYS O F HEARING , MR. SATS K EPT OFFERING THINGS UP A ND ITHINK SHE WAS TRYING TO GRASP HAD I SEEN THIS OR THAT BE FORE. I DON'T THINK SHE WAS SAYING I HAVE SEEN THAT DOC UMENT BEFORE.

DIDN 'T DR . SCH WARTZ REFER TO IT , ALSO?

DR . SCHWARTZ , YES , REFERRED TO A NORMAL EEG , JUST A REGULAR EEG , AND I GUESS WHAT WE ARE PER HAPS SPLITTING HAIRS ABOUT IS T HEFACT THAT LEWIS HAS BEEN ASKING FOR THESE OTHER EEG'S AND WE

SHE NEVER ESTABLIS HED YOU NEVER ESTABLISHED THAT THERE WERE TWO EEG'S TAKEN BY DR . NORMAN , HAVE YOU?

M R . SAT S SAYS YOU REALIZETHAT THE PHOTO STIM ULATION AND HIP ER VENTILATION AND HYPE EVER VENTILATION WERE NEVER DONE . WE PULL OUT THE B O XES AND THAT FAXED TO HIM DIRE CTLY BY DR. NORMAN , WAS PUT INTO THE MATERIAL BY THE ST ATE.

CHIEF JUSTIC E: YOUR TIME HAS EXPIRED.

OKAY.

CHIEF JUSTICE: THANK YOU. THE COURT WILL TAKE ITS MORNING RECESS. 15 MIN UTES .

MARSHAL: PLEASE RI SE.