CHIEF JUSTICE: THE LAST CASE ON THIS MORNING'S CALENDAR IS BRYANT VERSUS THE STATE OF FLOR IDA. ARE THE PARTIES READY?

YES. JO ANN KOTZEN ON BEHALF O F MR . BRYANT . THERE ARE T WO APPEALS WE FILED AND ARE HERE ON THIS MORNING. ONE WAS THE INITIAL BRIEF AND THE OTHER PETITION WAS THE WRIT FOR HA BEAS CO RPUS ALLEGING INEFFECTIVE ASSISTANCE OF APPE LLATE COUNSEL. THE FACTS OF THE CASE IS THAT THIS IS MR . BRYA NT'S SECOND TRIAL. IT IS A RETR IAL IN 1998, IN FEBRUARY.

CAN I ASK YOU A QU ESTION RIGHT TO THE POINT OF YOUR FIRST ISSUE.

YES.

IS N'T, REALLY, THE WAY TO ANALYZE THIS FIRST ISSUE , IS , WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN STRIKING THE INITIAL MOTION IN THE FIRST PLACE, WITH OUT GRANTING LE AVE TO AMENDMENT , BEFORE THE PERIOD EVER EXPIRED? THAT WOULD BE A GOOD WAY TO SAY THAT. BECAUSE THE TRIAL COURT DID NOT STRIKE THE INITIAL POSTCONVICTION MOTION, BRIEF , WITH PREJUDICE , IT IS TO B E ASSUMED THAT IT WAS WITHOUT PREJUDICE AND WE WERE ALLOWED TO HAVE IT B E AMENDED AT LEAST FOR THE 20-TO-30 DAYS AFTER IT WAS STRICKEN, AND I BELIEVE IDID FILE IT WITHIN THAT 20-TO-30 DA Y TIME LIMIT.

YOU SEEMED TO HAVE PHRASED THE ISSUE ON APPEAL DIFFERENTLY , IN THAT WHETHER THE TRIAL COURT COULD HAVE ACCEPTED, HAD JURISDICTION TO ACCEPT THE MOTION FILED MONTHS LATER, NOT WHET HER IT ABUSED ITS DISCRETION IN STRIKING IT ORIGINALLY .

WELL , I BELIEVE JU DG E MOUNTS HAD DISC USSED ED - - HAD DECIDED HA D THAT HE WANTED TO STRI KE THE BRI EF. HE HAD GIVEN U S TWO HEARINGS ON THAT ISSUE. HE ASKED IF COUNSEL COULD WORK OUT AND WHETHER WE COULD AGREE TO AMEND THE MOTION, AND THAT COULDN'T HAPPEN, AND SO I HADDECIDEDED THAT IT WOULD BE BEST TO ASK THE TRIAL COURT, IN THIS CASE IT HAVING TO BE ANOTHER JUDGE NOT THE ORIGINAL JUDGE , TO GO A HEAD AND AMEND, ALLOW US TO AMEND THE POSTCONVICTION MOTION AND NOT TO BRING IT IN FRONTOF THIS COURT , AND SO I DID PHRASE IT IN THAT AS PECT , ASFAR AS HAVING JURISDICTION, BECAUSE I BELIEVE THE AMENDED POSTCONVICTION MOTION DID RELATE BACK TO THE TIME OF THE INITIAL POSTCONVICTION MOTION. SO IT WOULDN'T BE SIMPLY A JURISDICTIONAL ISSUE.

NOW , ULTIMATELY , AND AN ALTERNATIVE WAY , WERE THE ISSUES THAT YOU RA ISED TREATED?

PARDON ME.

DID THE JUDGE AC TUALLY ISSUE AN O R DER ON THE ME RITS OF THE ISSUES THAT YOU RAISED?

YES. Y ES. JUDGE BR OWN , WHOSUBSEQUENTLY CAME INTO THAT DIVISION, DID A UTHOR O R ORDER , FIRST SAYING THAT IT DIDN'T HAVE JURISDICTION TO ENTERTAIN THIS MOTION, BUT THEN

IN THE ALTERNATIVELY

YES , ALTERNATIVELY SHE DID DE NY THE POSTCONVICTION MOTION.

ARE YOU GOING TO ADDRESS THE MERITS OF THAT MOTION?

WHAT I WOULD LIKE TO ADDRESS , I WOULD LIKE TO RELY FOR MOST OF THE ISSUES , JUST TO RELY ON MY BRIEF ANDTHE ARGUMENT AND THE CASESIN THE BRIEF , B UT I WOULD LIKE TO ADDRESS THE TWO ISSUES ON THE INITIAL BRIEF AND TWO ISSUES ON THE HAB EAS CORPUS PE TITION. THE FIRST ONE WOULD BE THE SHACKLING ISSUE IN THE INITIAL BRIEF, AND THE FAILURE OF THE TRIAL COUNSEL TO PROP ERLY PRESERVE THIS ISSUE FOR APPEAL.

LET ME ASK YOU, JUST AS A PRELIMINARY MA TTER B E FOREYOU GET INTO THAT , WHEN WEREYOU APPOINTED TO THIS CASE?

I BELIEV E I WAS APPO INTED IN AP RIL OF 2002.

AND YOU WERE THE ONE WHO HAD ASKED FOR SOME ADDITIONAL TIME IN THIS COURT?

YES. I BELIEVE THAT MY CLIENT DIDN'T WANT TO SIGN THE POSTCONVICTION MOTION, AND I HAD STRUGGLED WITH MY CLIENT AS TO SWEARING TO THE TRUTH OF MATTER.

YOU ARE REGISTRY ATTORNEY.

YES .

SO YOU ARE GOING TO DEAL WITH THE SHACKLING ISSUE?

YES , AS FAR A S COUNSKOUNS HE WILL FAILING TO PROPERLY PRESERVE THIS ISSUE FORDIRECT APPEAL AND I WOULD ALSO LIKE TO ADDRESS THE ISSUE REGARDING CONFESSION. THOSE ARE THE TWO ISSUES IN THE INITIAL BRIEF AS WELL AS IN THE HABEAS , I WOULD LIKE TO ADDRESS THE FACT THAT APPELLATE COUNSEL FAILED TO PRESENT TO THIS HONORABLECOURT IN THE DI RECT APPEAL , THE CONF ESSION ISSUE , THE TRIAL COURT DENS THE MOTION TO SUPP RESS THE CONFESSION , AS WELL AS APPELLATE COUNSEL FAILING TO PRES ENT FOR DIRECT APPEAL , THE AVOID-ARREST AGGRAVATOR. THE FIRST ISSUE I WOULD LIKE TO ADDRESS WOULD B E THE SHACKLING ISSUE. WHILE TRIAL COUNSEL DID OBJECT TO MR . BRYANT BEING SHACKLED FOR THE FULL TRIAL , TRIAL COUNSEL DID FAIL T O PROFFER OR ATTE MPT TO PROFFER ANY SIGNIFICANT CHANGES O F MR . BRYANT'S CONDUCT AND DEMEANOR.

WAS THERE AN OFFER HERE OF SOME OTHER FORM OF RESTRAINT , OTHER THAN THE SHACKLING?

THERE WAS. INITIALLY , THE JUDGE HADASKED FOR MR . BRYANT TO HAVE A STUN BEL T, AND ONCE MR . BRYANT HAD PUT THE STUN BELT ON, APPARE NTLY IT WAS A BIG STUN BELT . IT WAS TW ELVE BY TWELVE. HE WAS VERY UNCOMFORTABLE WITH IT.HE WAS SCARED THAT THE DEPUTIES WOULD TRY SH OCK HIM ARBITRARILY. HE DID NOT WANT TO WEAR THE STUN BELT, SO THE JUDGE HAD SAID, WELL, IT IS E ITHER THE STUN BELT OR THE SHACKLES. YOU CAN CHOOSE. AND SO THE JUDGE, THEN , WENT WENT AH EAD AND SHAC KLED MR . BRYANT, BOTH HIS ARMS AND HIS LEGS, SO THE JURY DEFINITELY DID SEE THE SHACKLES. MATTER OF FACT , ONE JUROR DID COM MENT TO THE TRIAL COUNSEL THAT THEY WERE CONCERNED ABOUT THE SHACKLES AND THE FACT THAT IT SHO WED SOME K IN D OF CRIMINALITY ON MR. BRYANT'S PART, AND THAT IS DURING THE GUILT PHASE. TRIAL COUNSEL FAILED TO PROFFER ANY KI ND OF L ESS RESTRICTIVE MEANS. THE ONE IN STANCE WAS MR . BRYANT, IN HIS FIRST TRIAL , HE HAD THROWN A CHAIR , ALLEGEDLY THROWN A CH AIR A FTER THE RENDITION OF THE V ERDICT , AND THAT WAS THE ONE OUTBURST THAT MR . B RYANT HAD HAD IN THE TEN YE ARS THAT HE HAD BEEN PROSECUTED . TRIAL COUNSEL COULD HAVE SUGGESTED , PERHAPS , MR . BRYANT JUST BEING SHACKLED FOR THE RENDITION OF THE VERDICT. TRIAL COUNSEL COULD HAVE SUGGESTED , THAT WOULD HAVE BEEN A L ESS RESTRICTIVE ALTERNATIVE.HE COULD HAVE

BU T DO YOU AGREE THAT DEFENSE COUNSEL DID OBJECT TO THE SHACKLES.

I DO. I DO AGREE WITH THAT, BUT ITHINK THERE IS A DIFFERENCE BETWEEN DEFE NSE COUNSEL FAILING TO OBJECT AND JUST NOT PRESE RVING THE ISSUE AT ALL FOR APPEAL , AND TRIAL COUNSEL FAILING T O PROPERLY PRESERVE THE ISSUE FOR APPEAL.

S O WHAT DO YOU SAY THAT COUNSEL SHOULD HAVE DONE THAT HE DIDN'T DO , IN OBJECTING?

TRIAL COUNSEL SHOULD HAVE PROFFERED OR ATTEMPTED TO PROFFER THE SIGNIFICANT CHANGES OF MR . BRYANT WITHIN THE NE XT SIX YEARS. MR . BRYANT HAD ONE VIOLENT OUTBURST IN 19 92 , DU RING HIS FIRST TRIAL , AND THEN BASED ON THAT, THAT IS W H Y THE TRIAL JUDGE S AID, WELL , WE ARE GOING TO HAVE HIM SHACKLED OR WE ARE GOIN G TO HAVE THE STUN BELT ATTACHED TO HIM. TRIAL COUNSEL FAILED TO SAY , JUDGE, THERE ARE ALL OF THESE LESS RESTRICTIVE MEANSTHAT WE COULD DO FOR MR . BRYANT. WE COULD MO VE MR . BRYANT TO ANOTHER TA BLE THAT IS NOTCLOSE TO THE JURY OR TO THE PROSECUTOR. WE COULD PUT A LEG BRACE ON MR. BRYANT. I WANT TO PRODUCE PR ISON RERDZ RECORDS TO SHOW HOW PRISON RECORDS TO SHOW HOW WELL-BEHAVED MR . BRYANT HAS BEEN IN THE PAST SIX YEARS. I WANT TO SHOW HOW VERY WELL BEHAVED MR . BRY ANT HAS BEEN WITH ME , MY PSYCHOLOGISTS.

WHAT DID THE RECO RD SHOW AS TO THE PRI SON OR J AIL BEHAVIOR?

MR . BRYANT HAS BEEN FINE SINCE HE HAS BEEN ON DEATH ROW .

NO.AT THE TIME THAT COUNSEL WAS DOING, THIS I F COUNSEL HAD LOOKED AT THE JAIL RECORD AND PRISON REC ORDS, WOULD IT SHOW WHAT? WHAT WOULD IT SHOW?

THAT IS A GOOD QUESTION. THE TRIAL COUNSEL DID NOT LOOK AT ANY OF THOSE RECORDS. HE DID NOT PRESERVE ANY

I AM ASKING YOU , NOW THAT YOU HAVE HAD THE OPPORTUNITY TO LO OK AT IT, WHAT WOULD HIS JAIL RECORD AND HISPRISON RECORD HAVE SHOWN THEJUDGE , IF IT HAD BEEN PRESENTED TO THE JUDGE?

THERE WAS ONLY ONE AGGRAVATED BA TTERY THAT MR . BRYANT WAS AC CUSED OF COMMITTING WHILE IN CUSTODY. THAT CASE, I D O NOT KNOW WHAT HAPPENED TO THAT CASE.

WAS IT PENDING AT THE T IME OF THE RETRIAL?

IT WAS NOT.

WELL , YOU DIDN'T HAVE AN EVIDENTIARY HE ARING ON THIS ISSUE .

NO , YOUR HONOR.

WHAT DID YOU ALLEGE? IN OTHER WO RDS, WHAT DID YOU ALLEGE IN YOUR MOTION , THAT WAS AVAILABLE FOR COUNSEL TO DEMONSTRATE TO THE TRIAL COURT THAT WOULD HAVE CONVINCED THE TRIAL COURTNOT TO HAVE THE DEFENDANT SHACKLED?

I ALLEGED I N THE MOTION , THE POSTCONVICTION MOTION THAT, TRIAL COUNSEL COULDHAVE BROUGHT IN VARIOUS WITNESSES REGARDING MR . BRYANT'S CON DUCT IN THE LAST S IX YEARS AFTER THAT FIRST TRIAL.MR . , THE TRIAL COUNSEL COULDHAVE, ALSO

WHAT WOULD THE WITNESSESHAVE SAID?

THE WITN ESSES WOULD HAVE TESTIFIED .

WHAT DID THE E MOTIONAL E DGE THAT WITNESSES WOULD HAVE TESTIFIED?

AS TO HIS GOOD BEHAVIOR , AND GOOD DE MEANOR. MATTER OF FACT WITH THIS ISSUE

GOOD BEHAVIOR UNDER WHAT CIRCUMSTANCES? FOR INS TANCE , IF HE HAD HAD THIRTY COURT APPEARANCES , OKAY , AND HE HAD COME TO COURT, HAD BEEN IN COURT FOR SEVERAL HOURS , THIRTY DIFFERENT TIMES OR SOMETHING , WITHOUT SHACK ELSES SHACKLES, AND HIS DEMEANOR , WERE THERE ANY ALLEGATIONS LIKE THAT, THAT IS THAT , IN THE INTERVENING SIX YEARS , J UDGE , HE HAS CLEANED UP HIS ACT BECAUSE HE HAS COME TO COURT , AND WE HAVE HAD ALL KINDS OF MOTIONS TO SU PPRESS AND ALL KINDS OF PROCEEDINGS , B UT HIS CONDUCT HAS ALWAYS BEEN IMPECCABLE .

THAT IS TRUE.WE DID ALLEGE THAT HE HAD SEVERAL PRE TRIAL HEARINGS REGARDING A MOTION TO SUPPRESS AND THE MOTION ON THE COMPET ENCY. MR. BRYANT'S CONDUCT WAS FINE DURING THOSE HEAR INGS, AND WE DID ALLEGE THAT, THAT DURING THE PRETRIAL HEARINGS

DURI NG ALL THOSE THINGS , THAT HE WAS NOT SHACKLED , BUT THAT HIS CONDUCT WASFINE?

HE WAS SHACKLED. HIS LEGS WERE SHACKLED.

THEY WERE SHACKLED.

YES. JUST BECA USE, IT DOESN'T SAY THAT IN THE RECORD. I AM ASSUMING , I DID NOT HAVE CONTACT WITH MR. BRYANT AT THAT TIME. I AM ASSUMING THAT HIS LEGS WERE SHACKLED , ONLY BECAUSE IT IS CUSTOMARY IN PALM BEACH COUNTY THAT ANYON E CONVICTED OF FIRST-DEGREE MURDER, ANYONE THAT IS DEEMED TO BE VIOLENT, THEY ARE SHACKLED WHEN THEY AREBROUGHT INTO THE COURTROOM. THE RECORD DOES NOT REF LECT WHETHER HE WAS ACTUALLY SHACKLED OR NOT. I A M JUST ASSUMING THAT HE WAS SHACKLED BECAUSE THAT IS THE CUSTOM IN THE TRIAL COURTS IN PALM BEACH COUNTY, TO HAVE SOME ONE THAT HAS BEEN CONVICTED , TO BE SHACKLED. AS LONG AS THE IR LEGS ARE SHACKLED NOT THEIR AR MS.

IF YOU WANT TO TOUCH ON THOSE COUPLE OF OTHER ISSUES, I NOTICE THAT YOUR TIME , S O

YES, I F I COULD. I ALSO ALLEGE IN THE POSTCONVICTION MOTION THAT THE TRIAL COUNSEL COULD HAVE SUBMITTED SOME KIND OF FACTUAL FIN DINGS REGA RDING THE OPERATION OF THE STUN BEL T. I BELIEVE THAT THERE WAS SOME ISSUE REGARDING THESTUN BELT VERSUS THE SHACKLING, AND TRIAL COUNSELCOULD HAVE ADDRESSED ISSUES SUCH AS THE CRITERIA FOR TRIGGERING THE BELT AND THE POSSIBILITY

CHIEF JUSTICE: YOU ARE IN YOUR REBUTTAL. I DON'T KNOW IF YOU WANTED TO TOUCH ON OTHER ISSUES THAT YOU SAID YOU WERE GOIN G TO TOUCH ON.

YES .

CHIEF JUSTICE: I KNOW YOUWANT TO SAVE SOME TIME.

THAN K YOU , YOUR HONOR. Y ES. I WILL ALSO TOUCH ON THE ISSUE REGARDIN G TRIAL COUNSEL'S CONDUCT WITH CONFESSION. MR. BRYANT IS ALLEGING THAT TRIAL COUNSEL WAS INEFFECTIVE FOR THEIR FAILURE TO BE SUCCESSFUL, ACTUALLY, W ITH THE CONFESSION ISSUE. THERE WAS NO FA LSE CONFESSION EX PERT THAT REVIEWED THE CONFESSION. THERE WAS NO FALSE CONFESSION EX PERT THAT WAS C ALLED DURING THE EVIDENTIARY HEARING , IF THEJUDGE WOULD HAVE G RANTED AN EVIDENTIARY HEARING.

IS THAT SOMETHING THAT IS NORMALLY DO NE, WHEN PEOPLE ALLEGE THAT THEIR CONFES SION WAS NOT VOLUNTARY , DID THEY BRING IN A FALSE CONFESSION EXPERT?

WELL , HERE THE CONFESSION IS CRUCIAL, BECAUSE THIS WASTHE ONLY PIECE OF EVIDENCE THAT WAS LINKING MR . BRYANT TO THE CRIME. THERE WAS NO

THERE WASN'T ANY WITNESS , PEOPLE HE HAD TA LKED TO ABOUT, I THOUGHT THERE WERE SEVERAL PEOPLE , AND THAT I S H OW THEY GO T TO HIM , THAT S AID THAT HE TOLD THEM WHAT HE HAD DONE .

NONE OF THOSE WITNESSES TESTIFIED.THERE WERE FO UR, I CALL THEM THE FOUR UNRELIABLE S. THERE WERE FOUR PEOPLE WHO CAME TO THE DETECTIVE AND SAID BY RON BRYANT COMMITTED THIS CRIME. NONE OF THOSE PEOPLE TES TIFIED TESTIFIED AT THE MOTION TO SUPPRESS THE CONFESSION NOR DID THEY TESTIFY AT TRIAL. THERE WAS A CODEFENDANT. HE DID NOT TESTIFY AT TRIAL. THERE WERE TWO OTHER PEOPLE AT THE ST ORE , MRS. ANDREAS WELL AS TWO OTHER PERSONS IN THE BACK . THERE WAS NOTHING L I NKING MR . BRYANT TO THE CR IME.

IN YOUR POST CONVICTION MOTION, DO YOU ALLEGE THATYOU HAVE NOW HIRED A FALSE CONFESSION EXPERT , AND THE FALSE CON NEXT EXPERT WOULD CONFESSION EXPERT WOULD TESTIFY THAT THIS WAS, IN FACT, A FALSE CONFESSION?

THERE WAS A FALSE CONFESSION EXPERT THAT COULDHAVE BEEN USED, IF I WOULD HAVE CALLED MR . DUBINER AT THE EVIDENTIARY HEARING

LET ME CL ARIFY IF YOU DIDN'T UNDERSTAND MY QUESTION, DID YOU ALLEGE IN THE POSTCONVICTION MOTIONTHAT YOU HAD NOW OBTAINED A FALSE CONFESSION EXPERT , AND THE FALSE CONFESSION EXPERT W OULD TESTIFY THAT THIS WAS, IN FACT, A FALSE CONFESSION?

NO , YOUR HONOR. WHAT I HAD ALLEGE D IS THAT TRIAL COUNSEL WAS INE FFECTIVE FOR FAILING TO CALL THIS FALSE CONFESSION EXPERT.

DON'T YOU HAVE TO ALLEGE SOME PREJUDICE IN THE MOTION AS WELL, AND DON'T YOU HAVE TO SHOW PREJUDICE BY SA YING COUNSEL SHOULD HAVE PRESENTED THIS KIND OF EXPERT. WE NOW HAVE THIS KIND OF EXPERT, AND THE EXPERT WOULD HAVE PROVIDE SOME DAY TESTIMONY FAVORABLE TO THEDEFENDANT.DON 'T YOU HAVE TO ALLEGE THAT IN THE MOTION?

THAT WOULD HAVE BEEN PREFERABLE. I WOULD HAVE BEEN ABLE TO PRODUCE RICHARD O F SHE F RO M CALIFORNIA WHO WOULD HAVE TESTIFIED AT THE EVIDENCIARY HEARING.

ISN'T THAT ONE THING TO SAY I KNO W AN EXPERT THAT I CAN CALL, ISN'T THAT DIFFERENT THAN SAYING L ATER WE DISCOVERED THAT THEDEFENDANT HAD BR AIN DAMAGE? A GOOD LAWYER SHOU LD HAVE , THE WAY THAT YOU WOULD TR EAT THAT WOULD SAY THAT WE NOW KNOW THE DEFE NDANT DOES HAVE BRAIN DA MAGE , AND THAT ANY COMPETENT LAWYER WHO HAD HIMEXAMINED BY A ME NTAL HEA LTH EXPERT, WOULD HAVE DISCOVERED HE HAD , SO HERE ARE YOU ABLE OR DID YOU ALLEGE THAT WE HAVE HAD A N AULS CONFESSION EXPERT A FALSE CONFESSION EXPERT LOOK AT THIS , AND THE FALSE CON N EXT EXPERT NOW - - CONFESSION EXPERT NOW SAYS THIS IS A CLA SSIC CASE AFTERFALSE CONFESSION , AND WE ARE NOW PREPARED TO DO WHAT COUNSEL DIDN'T DO?

NO. I DID NOT ALLEGE THAT AND ISHOULD HAVE ALLEGED THAT.

WAS THERE A HUFF HEARING?

NO , THE RE WAS NOT.

O K AY. I THINK YOU ARE SIGNIFICANTLY IN YOUR REBUTTAL.

WAS THERE NO HUFF HEARING , BECAUSE THE PLEADINGS HADBEEN STRI CKEN ?

I REALLY CAN'T TE LL THE COURT WHY THERE WAS NO HUFF HEARING. IT WAS TOUGH TO GET HEARINGS IN FR ON T OF THIS COURT DURING THE TIME FRAME THATWE HAD TO WORK WITH.

THE TRIAL COURT.

YOU ASKED FOR ONE. YOU ASKED FOR A HUFF HEARING.

NO.I DID NOT . I WILL RESERVE THE REST OF MY TIME. THANK YOU.

GOOD MORNING. MAY IT PLEASE THE COURT. LESLIE CAMP BELL WITH THE ATTORNEY GE NERALS OFFICE.

MS. CAMPBELL , DURING THE RELEVANT TIME THAT THIS WASGOING ON, WAS OUR NEW RULE IN PL ACE , OR ARE WE OPERATING UNDER THE

YES , YOUR HONOR. NEW RULE . IT WAS A NEW RULE CASE.

S O SHOULDN'T THERE HAVE BEEN SOMETHING LIKE A HUFF HEARING?

THERE WAS A HUFF HEARING,YOUR HONOR. IT WAS ON JULY 3. CASE MANAGEMENT, HUFF HEARING, BUT WE HAD ONE .

WELL , WHAT DO YOU MEAN CASE MANAGEMENT , HUFF HEARING?WHAT HAPPENED AT THIS HEARING THAT YOU COULD CON SIDER IT A HUFF HEARING?

WE WENT THROUGH EACH CLAIM , YOUR HONOR , AND WE MADE OUR, THE STATE MADE ARGUMENT AS TO WHETHER THE CLAIM WAS LEGALLY INSUFFICIENT, PROCEDURALLY B ARRED OR REF UTED FROM THE RECORD. WE HAD A FULL , WHAT THECOURT WOULD CALL A HUFF HEARING, AND WHAT IS NOW CODIFIED AS A CASE MANAGE MENT .

IN OTHER WORDS A HEARING TO DETERMINE WHETHER OR NOT , WHETHER THERE WAS AN EVIDENTIARY HEARING GOING TO BE NE EDED TO RESOLVE THE ISSUE.

THAT IS CORRECT , YOURHONOR.WE HAD A FULL CASE MANAGEMENT, HUFF HEARING.

EXCUSE ME. I WANT TO GET BACK , BECAUSE I INTERRUPTED , WE WERE JUST ASKING QUESTIONS AT THE SAMETIME. I WOULD LIKE TO GET BACK TO JUSTICE CAN CAN'T PLEASE.

THAN K YOU. TO JUSTICE CANTERO P LEASE.

THANK YOU. I AM CONCERNED AB OUT THEFIRST ISSUE. IS THE STATE AR GUING O N APPEAL THAT THE PROCEDURES THAT WERE USED TO STRIKE AND THEN PREVENT AN AMENDMENT OF THIS POSTCONVICTION MOTION, IS THE T YPE OF PROCE DURES THAT WE NORMALLY CONDONE , WHICH SEEMS TO ME , TO BE A GOTCHA KIND OF THING THAT HAPHERE. THEY HA HAPPENED HERE. THEY STRUCK THE INITIAL MOTION RATHER THAN GIVING LEAVE TO AME ND, AND THEN AFTER THE PERIOD EXPIRED, NO, SIR, I AM SORRY. WE DON'T HAVE JURISDICTION OVER IT? DON'T WE REGULARLY SAY YOUSHOULD ALLOW THE AMENDMENT OF THESE PL EADINGS AND HAVE THEM ATTEMPT TO COMPLY WITH THE RULE, BEFORE YOU GO AHEAD AND DISMISS IT?

YOUR HONOR , WHEN THIS PARTICULAR RULE WAS ENACTED IN 2 001 , NOT EN ACTED BUT PUT INTO PLACE IN 2 001 , THE COURT'S CONCERN WAS THE TIME D ELAY AND THE WAY THAT THE 3.851 CASE S WERE LAG ING IN THE TRIAL COURT, SO C ERTAIN R ULES WERE PUT IN PLACE, INORDER TO MAKE SURE THAT THE PLEADING WAS F I LED WITHIN ONE YEAR THAT , IT WAS FULLY PLED, AND THAT IS UNDER 3.851.

BUT IN EV ERY OTHER TYPE OF CASE , IF SOMETHING IS NOT F ULLY PLED, WE GRANT LEAVE TO AMEND TO FULLY PLEAD IT , EXCEPT IN A DEATH-PENALTY CASE?

WELL , THERE ARE CE RTAIN THINGS THAT GO INTO THECONSIDERATION. THE STATE NEEDS A FULLY PLED, AND THE COURT , MORE IMPORTANTLY , NEEDS A FULLY PLED MOTION , IN ORDER T O MAKE A DETERMIN ATION WHETHER OR NOT TO GRANT A HEARING OR NOT.

I ABSOLUTELY AGREE , SO WHY DOESN'T THE JUDGE JUST SAY I AM GOING TO DISMISS THIS MOTION WITH LE AVE TO FILE AN AMENDED MOTION THAT COMPLIES WITH THE RULE S?

BECAUSE THIS MOTION WAS STRICKEN A FTER THE ONE YEAR AND, IN FACT , AFTER , AFTER THE 30-DAY EXTENSION HAD BEEN, HAD EXPI RED.

MY UNDERSTANDING THAT THEFIRST TIME THE JUDGE STRUCK IT, IT WAS WITHIN THE TIME PERIOD. IT WASN'T STRICKEN FOR UNHAD TIMELINESS. IT WAS STICK FOR UNTIMELINESS. IT WAS STRICKEN FOR FAILURE TO PLEAD.

IT WAS STRICKEN

IT WAS FILED WITHIN THE PERIOD.

IT WAS FILED WITHIN THE PERIOD.

SO IT WAS FILED WITHIN THE PERIOD. SO THERE IS NO TIMELINESS ISSUE, SO ALL OF THESE CONCERNS ABOUT HAVING THINGS FILED WITHIN A YEAR DID NOT APPLY , BECAUSE IT WAS TIMELY. WITH THE EXTENSIO N THAT WE GRANTED, WHY DID N'T THE COURT WHEN IT STRU CK THE MOTION BECAUSE YOU DIDN'T TAMPA CO PY OF THE SENTENCING OR WHATEVER IT IS.

IT WAS MORE THAN THAT , YOUR HONOR. IT WAS MUCH MORE.

FOR WHATEVER IT WAS , WHY DIDN'T THE COURT JUST SAY GO BACK AND GET IT RIGHT, AT LEAST ONE TIME . IN CIVIL CASES WE GI VE YOU TWO OR THREE TIMES BEF ORE IT IS DISMISSED WITH PREJUDICE.

EVEN IF WE HAD DONE THAT,YOUR HONOR, WE K NOW WHAT WOULD HAVE EVEN IF HE HAD DON E THAT, YOUR HONOR , WE KNOW WHAT WOULD HAVE BEEN FILED WITH THE AMENDMENT.

THAT IS NOT THE PO INT . THE POINT THAT WE ARE GOINGTO HAVE AN OPINION FROM OUR COURT CONDONING STRIKE AGOMOTION WITHOUT LEAVE TO AMEND.IS THAT WHAT YOU WANT AND IT IS FINE , JUST STRIKE IT WITHOUT LEAV E TO AMEND?

I THINK IN THIS PARTICULAR CASE, YE S, THE DEFENDANT NEEDS TO PLEAD THE MOTION FULLY, WHICH IS WHAT THIS COURT HAS REQUIRED.THIS COURT HAS GOTTEN AWAY AND HAS SAID WE DO NOT WANT SHELL MOTIONS , WHICH IF YOU LOOK AT THIS , IT IS IN ESSENCE A SHELL MOTION WITH A LITTLE LAW. THAT IS WHAT IN MOTION WAS. E ACH CLAIM WAS CONCLUSIONARY PLED. THERE WERE NO F ACTS. THE STATE IN RESPONDING, HAD TO MORE OR LESS LAY OUT EXACTLY WHAT THE DEFENDANT WAS ATTEMPTING TO SAY .

WELL , I THOUGHT THAT THE DEFENDANT WAS GIVEN THE OPPORTUNITY TO AMEND. WHERE DID THE AMENDED MOTION COME FROM THEN? IT WAS FILED , AS I UNDERSTAND, IN MA RC H OF '03. THE DEFENDANT FILED AN AMENDED MOTION. WAS THAT WITH PERMISSION OF THE COURT OR NOT?

IT WAS WITH PERM ISSION OF THE COURT. MAYBE IT WOULD BE HELPFUL, IF I JUST DID A QUICK PROCEDURAL OUTLINE. IN NOVEMBER OF , EXCUSE ME , NOVEMBER OF '02, NOV EMBER 12, '02, THE INITIAL MOTION WAS SUPPOSED TO BE FILED. IT WASN'T FILED THEN BUT AN EXTENSION WAS GIVEN UN TIL DECEMBER 13 OF THAT Y EAR. THE MOTION WAS STRICKEN ON THE 19 th OF DE CEMBER , AND AN ORDER WAS RE NDERED , A W RITTEN ORDER WAS RENDERED ON THE 3 0 th OF DECEMBER. IT WAS NOT UNTIL JANUARY 16 OF '03 , THAT MR . BRYANT MOVED TO E ITHER SUPPLEMENT OR AMEND HIS INITIAL MOTION.

AND DID HE, WAS THE SUPPLEMENT INCLUDED IN THERE, THE AMENDMENT , OR WAS IT JUST A MOTION? WAS IT A MOTION WITH THE AME NDED

NO , IT WAS NOT , YOURHONOR.IT WAS JUST MOTION TO SUPPLEMENT OR AMEND , AND THEN IN FEBRUARY , JUDGE WINET HAD A HE ARING ON IT AND DECID ED THAT , YES , THESTATE WAS CORRECT, THE RE WAS NOT HING TO AMEND BECAUSE THE MOTION WAS STRICKEN , AND THAT THE PROPER PROCEDUREWOULD HAVE BEEN BECAUSETHERE IS NO PE NDING MOTION, WOULD HAVE BEEN TO COME BACK TO THIS COURT AND GET ANOTHER EXTENSION OF TIME. HOWEVER , HE FELT THAT IT WOULD HAVE BEEN A , IT WOULD HAVE BEEN JUST AS EASY FOR THE TRIAL COURT TO GIVE THAT ADDITIONAL TIME TO AMEND. HOWEVER , THAT WAS BEYOND WHAT THE RULE SAYS. HE WAS BEYOND HIS JURISDICTION TO DID THAT. THIS - - TO DO. THAT COURT TOOK AWAY THAT RIGHT FROM THE TRIAL COURT AND PLACED BA CK IN THIS COURT'S HA NDS, IN ORDER

HE ALLOWED AN AMENDMENT EVEN THOUGH IT WAS BEYOND THE TIME.

THAT IS CORRECT.

THE STATE , LET ME ASK YOU , THE STATE, THOUGH , KNOWS THAT THIS IT IS THIS COURT THAT IS THERE TO G RANT THE AMENDMENT.I GUESS WHAT WE ARE ALL GETTING TO IS THAT THIS RULE WAS MEANT TO TRIAL T O WASMEANT TO TRY TO EXPE DITE POSTCONVICTION PROCEEDINGS, AND THE FACT THAT THIS CASEIS UP HE RE AND BEING AR GUED ON ITS, I GU ESS ON THE MERITS IN PART, SHOWS THAT AT LEAST SOMETHING IS WORKING.THERE WERE HEARINGS AND G OING ALON G, BUT THE PURPOSE WAS NOT TO PLAY GOT CHA GAME , AND YOU KNOW , IF WE HAVE GOT , IT WENT FROM JUDGE MOUNTS, WHO HAD THE CASE IN DECE MBER '02.

HE RETIRED, YOUR HONOR .

HE RETIRED , SO JUDGE WINET , YOU KNOW, THES E ARE T RIAL JUDGES THAT ARE TR YING TO DO THE BEST THIS THEY CAN. WHY ISN'T THE STATE THERE HELPING TO GET THESE CASES TO HEARING, R ATHER THAN TRYING TO YOU KNOW , PUT A REGISTRY COUNSEL IN A SITUATION WHERE SHE MA YBE DIDN'T UNDERSTAND WHERE SHE WAS SUPPOS ED TO ASK FOR THE EXTENSION?

WELL , YOUR HO NOR , I WOULD HAVE TO GO BEYOND THE REC ORD AS TO WHAT DISCUSSIONS I HAD WITH REGISTRY COUNSEL.

BUT YOU KNOW WE D ON'T HAVE CLAIMS OF INEFFECTIVE ASSISTANCE OF REGI STRY COUNSEL.

THAT IS CORRECT.

SO WE TRY TO GET THIS RIGHT SO THAT WE CAN GET THESE CASES HEARD ON THEIR MERITS.

IF YOUR HONOR WOULD LI KEME TO DISCLOSE WHAT I HAVE SAID TO REGISTRY COUNSEL , I WOULD BE MORE THAN HAPPY TO DO SO. IN ANY CASE THERE, IS NO GOTCHA TACT IC. THE STATE WAS ME RELY ASKING FOR MR . BRYANT TO COM PLY WITH THE RULE AND GIVE A F ULLY PLED MOTION, WHICHCOULD BE RULED UPON BY THE TRIAL COURT .

SO WHY DIDN'T T HE STATESAY THAT AT THE FIRST MOTION , INSTEAD OF SAYING , JUDGE , YOU SHOULD STRIKE THIS MOTION. SAY , JUDGE , YOU SHOULD DISMISS THIS WITH LEAVE TO AMEND SO T HAT WE CAN PROPERLY RESPOND TO IT.

WHAT WE SAID THERE WAS THAT IT SHOULD BE STRICKEN BECAUSE IT WASN'T PROP ERLY PLED HARKS THAT IT DIDN'T HAVE CERTAIN ATTACHMENTS TO IT , WHICH WE ONLY HAD IN THERE BECAUSE IT DIDN'T COMPLY AS PART OF THE RULE, B UT THE MAIN FOCUS WAS THAT IT DIDN'T HAVE THE FACTUAL BASIS, AND IT DIDN'T HAVE INDIVIDUALLY PLED CLAIMS. IT WAS ALL INCLUDES AREA. WE TOLD THE IT WAS ALL CONCLUSIONARY. WE TOLD THE COURT AT THAT FIRST HEARING THAT IT SHOULD BE STRICKEN, THAT THE REME DY WOULD BE TO GET A N EXTENSION OF TIME FROM T HIS COURT TO PROPERLY PLEAD THIS. THAT WAS SAID BACK IN DECEMBER. NOTHING WAS DONE UNTIL JANUARY, AND THEN OF COURSE THE AMENDMENT, W HICH IS VIRTUALLY THE SAME AS WHAT WAS FILED IN NOV EMBER , WAS THE AMENDMENT THAT WE ARE WOR KING ON. AND IN FACT , THE TRIAL COURT, WHEN , IN FEBRUARY WHEN THE TRIAL COURT G A VE THE ADDITIONAL TIME TO AMEND , DIDN'T SAY , O H, THIS WASN'T STRICKEN, THIS WAS STRICKEN IMPROPERLY. THE TRIAL COURT MERELY ALLOWED THE AMENDMENT .

DO YOU WANT TO ADDRESSTHE SHACKLING ISSU E.

I CAN ADDRESS THE SHACKLING ISSUE. I HAVE TO MAKE A FEW FACTUAL CORRECTIONS.NUMBER ONE, M R. BRYANT WAS SHACKLED AT ALL PRETRIAL HEARINGS AFTER HIS INITIAL CHAIR-THROWING INCIDENT, AND THAT YOU CAN SEE FROM THE RECORD. AT ONE POINT IN THE SUPPRESSION MOTION , HE ASKED TO HAVE ONE HAND R E LEASED SO HE COULD WRITE, SO WE KNOW HE WAS SHACKLED AT THAT TIME. ALSO, THE AGGRAVATED BA TTERY WAS PENDING DURING THE RETRIAL , AND THAT WAS AN ISSUE THAT WAS DISC USSED WITH JUDGE MOUNTS AT THE RET RIAL AND , A LSO , WAS A MATTER THAT WAS DISCUSSEDWITH THIS COURT ON DI RECT APPEAL .

WAS THERE AN AGGRAVATED ASSAULT AND AGGRAVATED BATTERY OR AGGRAVATED ASSAULT?

AGGRAVATED BATTERY AND IBELIEVE IT WAS BROUGHT DO WN TO AN AGGRAVATED ASSAULT.

WOULD YOU ADDRESS THE ISSUE, WAS THE FALSE CONFESSION EXPERT , WAS THAT SOMETHING THAT WAS PLED IN THE POSTCONVICTION MOTION?

NO T IN THE MOTION. IT WAS DISCUSSED IN THE HUFF HEARING THAT, A FALSE CONFESSION EXPERT SHOULD HAVE BEEN FO UND OR SHOULD HAVE BEEN PRESENTED. HOW EVER , A N AME WAS NOT GIVEN, WHAT THAT EXPERT WOULD TESTIFY TO , NOTHING LIKE THAT WAS OFFERED.

WELL , THE JUDGE DIDN'T MAKE ANY SPECIFIC REFERENCE TO THAT CLAIM , IN THE ORDER DEN YING POST-CONVICTIONRELIEF.

NO, BECAUSE THE WH OLE C LAIM , AS FAR AS A CONFESSION WAS CONCERNED , WAS REALLY FOCUSED A S TO WHETHER OR NOT IT WAS PRESERVED FOR APPEAL AND THETRIAL COURT FOUND THAT IT HAD BEEN PRES ERVED FOR APPEAL. THERE WERE TWO CONFESSION MOTIONS, ONE IN THE FIRST TRIAL, THEN INCORPORATED INTO THE SE COND TRIAL 'SSUPPRESSION MOTION.

THAT IS A DIFFERENCE AS TO WHETHER IT IS PROCEDURAL BARRED BECAUSE THE ISSUE OF CONFESSION WAS PROPERLY PRESERVED , WHICH WOULD THEN G ET US IN TO THE OTHER QUESTION, WHY WASN'T IT R AISED ON AP PEAL , BUT, SECOND, IF COUNSEL WAS AT ALL DEFI CIENT IN HOW HE ARGUED THE CONFESSION ISSUE , A ND, AGAIN , WE HAVE , I HAVE NOT SEEN A FALSE CONFESSION EXPERT TEST IFYING IN ANY OF THESE CASES, SO I DON'T KNOW I F THIS IS EVEN SOMETHING THAT IS PROPERLY ALLOWED , BUT THAT IS DIFFERENT. THAT WOULDN'T , I F COUNSEL WAS DEFICIENT

THERE ARE NO FACTS. WE DON'T KNOW WHY MR . BRYANT IS NOW CLAIMING THAT HIS CONFESSION IS FALSE. WE DON'T KNOW WHAT THIS EXPERT WOULD TESTIFY TO . I MEAN , THIS IS , TODAY IS THE FIRST TIME THAT WE HEARDTHAT IT WAS DR . OF SHE THAT MR . BRYANT WAS CONSIDERING. THERE IS REALLY NOTHING TO RESPOND TO. NOW , A S FAR AS WHAT HE MIGHTBE AB LE TO RESPOND TO AND THIS MAY HELP THE COURT , AS JUSTICE QUINCE WASAL LE WDING TO EARLIER , MR . - - AS JUSTICE QUIN CE WAS ALL UDING TO EARL IER , MR . BRYANT TESTIFIED TO A GUN BEING PLACED TO HIS HEA D AT ONE POINT DURI NG THE CONFESSION AND ALSO TEST IFIED THAT HIS MOTHER WAS BROUGHT IN, IN EXCHANGE FOR A STATEMENT. BOTH OF THOSE GO MORE TOWARDS THE VOLUNTARINESS OF HIS CONFESSION , NOT WHETHEROR NOT THAT CONFESSION IS FALSE. THEREFORE , THERE ARE NO FACTS THAT ARE OFFERED TO THE TRIAL COURT, IN THE POSTCONVICTION MOTION , TO SUGGEST THAT COUNSEL WAS INEFFECTIVE OR DEFICIENT IN ANY WAY .

WHAT AB OUT ON THE APP ELLATE POIN TS THAT I DON'T THINK MS. KOTZEN GOT, TO BUT I WAS CONC ERNED ABOUT FAILURE TO RAISE , AT LEAST IT SEEMED LIKE AN ARGUABLE POINT CONCER NING THE AVOID-ARREST AGGRAVATOR , ANDSECOND OF ALL , ON WHAT WAS RAISED ABOUT, THAT THE CONFESSION WAS IMPR OPERLY ALLOWED INTO EV IDENCE , THAT IT SHOULD HAVE BEEN SUPPRESSED ? WHY , WAS APP ELLATE COUNSEL DEFICIENT IN E ITHER OF THOSE REGARDS, RESPECTS ?

WITH REGARD T O THE , BECAUSE MY TIME IS GE TTING SHORT , LET ME JUST GO RIGHTTO THE PREJUDICE PO RTION OF THE INEFFE CTIVE NESS O F APPELLATE COUNSEL WITH REGARD TO THE A VOID ARREST . THIS COURT , ON DIRECT APPEAL , CONSIDERED WHETHER OR NOT THE SENT WAS PROP ORTIONAL , AND IN DO ING SO , S A ID MR . B RYANT IS RA ISING THE ISSUE THAT HIS K ILLING OF MR . ANDRE WAS MERELY A ROBBERY GONE ARE A RY . THEN THE COURT SAID WE HAVE REJECTED THAT IN THE PAST AND WE HAVE ALSO AFFIRMED ADEATH SENTENCE WHER E WE ON LYHAVE TWO AGGRAVATORS , THE FELONY MU RDER AGGRAVATOR AND THE PR IOR VIOLENT FE LONY , AND IN THIS PARTICULAR CASE, THE PRIOR VI OLENT FELONY WAS A ROBB ERY , A N OTHER ARMED ROBBERY, A AGGRAVATED ASSAULT WITH A MASK, AND A MASK WAS USED IN THIS CASE, A S E XUAL BATT ERY. SO THIS COURT HAS ALREADY MADE A DETERMIN ATION THAT, EVEN WITH OUT THE AGGRAVATED BATTERY , THE SENTENCE WOULD BE PROPORTIONAL .

WITHOUT THE AV OI D ARR EST.

WITHOUT THE AVOID ARRE ST, THE SENTENCE WOULD BE PROPORTIONAL.

AS I RECALL , THERE WERE NO STATUT ORY MITIGATORS ?

NO STATUTORY MITIGATORS . ONE WAS OFFE RED WHICH WAS AGE AND THAT WAS REJECTED, AND THERE WAS ONE NONSTATUTORY MITI GATOR OF REMORSE, WHICH WAS GIVEN VERY LI TTLE WEIGHT, AND IF YOU LOOK AT THE CASE IN THAT LIGHT, CERTAINLY THE SENTENCE WOULD HAVE BEEN AFFIRMED

HE WAIVED THE PENALTYPHASE?

NO. HE DIDN'T WAIVE THE PENALTYPHASE. HE WAIVED THE PENALTY-PHASE JURY. HE HAD A FULL PENALTY P HASE.

DO YOU AGREE THAT THE AVOID-ARREST AGGRAVATOR HERE , IS PRE TTY FLIMSY.

IT IS NOT THE STRONGEST OF AGGRAVATORS .

WHAT ABOUT ON THE CONFESSION?

ON THE CONFESSION ISSUE, YOUR HONOR.

ISN'T THERE A REAL QUESTION AS TO WHETHER THE INITIAL ARREST WAS LEGAL OR NOT?

NO, YOUR HONOR. THERE WERE FOUR OR FIVE WITNESSES, ACTUALLY , ALL FRIENDS , AND FR IENDS OF MR . BRYANT WHO TESTIFIED T O FACTS THAT ONLY THE DEF ENDANT WOULD KNOW , S UCH AS THE BUCKET OF FISH BEING KNOCKED OVER, WHERE MR . ANDRE AND MR . BRYANT FIRST MET , THE SHOTS THAT WERE F IRED , THAT IT WAS A HAITIAN OWNER IN A MARKET THAT WAS KILLED. MR. BRYANT CAME BACK ON THE NIGHT AND IMMEDIATELY CONFESSED TO HIS GIRLFRIEND , CHERYL EV AN S , CLEARLY THESE WITNESSES WHO ALL CAME FORWARD AND G AV E S WORN STATEMENTS TO THE PO LICE , THEY AR E NOT UN KNOWN WITNESSES. THEY ARE NOT SOMEBODY WHO JUST CA LLS U P ON A PH ONE AND SAYS THERE IS A DRUG DEAL GOING ON DOWN THE STREET , AND THE POLIC E HAPTO ARRIVE. THE POLICE KNEW THAT HAPPEN T O ARRI VE. THE POLICE KN EW THAT A C RIME HAD TAKEN PL ACE. THEY HAD EVI DENCE THAT THEY COULD CORROBORATE AGAINSTWHAT THESE WITNESSES ARE SAYING, AND THEN THE Y HAD THE CITI ZEN INFORMANTS , THENAMED WITNESSES WHO HAD GIVEN SW ORN STATEMENTS. CLEARLY THERE WAS PROBABLE CAUSE FOR THE ARREST. NOW, WITH RESPECT T O THEOTHER ISSUE THAT WAS BROUGHTUP AT TRIAL, AT THE SECOND TRIAL , WHICH WAS WHETHER OR NOT MR . BRYANT 'S CONFESSION WAS VOLUNTARY , BECAUSE HIS MOTHER WAS BROUGHT TO THE INTERVIEW ROOM ALONG WITH HIS FAMI LY. THAT ISSUE CLE ARLY , THETRIAL COURT HAD SUFFICIENT EVIDENCE TO S U PPORT ITS FINDING THAT THE CONFESSION WAS VOLUNTARY. THE POLICE OFFICERS TESTIFIED THAT IT WAS MR . BRYANT WHO FIRST SAID , AF TER MR. BRYANT HAD HEARD THE STATEMENT B Y D AMIEN REMY WHICH RE LATED MR . BRYANT 'SSTATEMENTS, THE DEF ENDANT SAID TO THE POLICE OFFI CERS , DO YOU THIN K I AM GUILTY , AND THE POLICE OFFICERS RESPONDED THAT THEY THOUGHTHE WAS, AND HE SAID, THEN , WELL , LET ME SEE MY MOTHER , AND I WILL TELL YOU WHAT HAP PENED AFTERWARDS. SO THE POLICE OFFICERS ACCOMMODATED HIM. THEY BROUGHT HIS MOTHER IN . SHE VI SITED WITH FAM ILY , ANDTHERE WERE CHILDREN THEREAND OTHER FAMILY MEMBERS. THEY BROUGHT HIM FOOD , MR . BRYANT FOOD.THEY SPOKE FOR 30-TO- 60 MINUTES . AFTERWARDS MR. BRYANT THEN GAVE A TAPED STATEMENT NTHAT STATEMENT, HE CONFIRMEDTHAT HE KNEW HE DID NOT HAVE TO SAY ANYTHING , THAT HE COULD HAVE GONE STRAIGHT TO JAIL AND STRAIGHT TO TRIAL WITHOUT SAYING A WORD.HE ALSO SAID THAT HE WAS NOT PROMISED ANYTHING AND THEREWERE NO TH REATS MA DE, SO THE TRIAL COURT WAS WELL WITHIN ITS DISCRETION TO FIND THAT THIS STATEMENT WAS VOLUNTARY . SO AS FAR AS NOT BR INGING I T UP O N APPEAL , CLEARLY THEREIS NO MERIT TO THE CL AIM THAT

HOW MA NY ISSUES WERE RAISED ON APPEAL?

SI X. SEVEN. EXCUSE ME. SEV EN. THE SHACKLING ISSUE , W HICH THIS COURT FOUND JUDGE MOUNTS SHOULD HAVE HAD A N EVIDENTIARY HEARING.HOWEVER , HE DIDN'T. BUT SUCH WAS HARMLESS , BECAUSE JUDGE MO UNS WAS THE ONE WHO WIT WITNE SSED MR . BRYANT THROW A 26-P OUND CHAIR IN THE AIR TOWARDS THE PROSECUTOR AND TOWARDS THEJURY. ALSO KNEW ABOUT A BOOK-THROWING INCI DENT THAT HAPPENED BEFORE AND KNEW ABOUT THE ONGOING AGGRAVATED BATTERY THAT OCCURRED AFTE R THE FIRST TRIAL BUT BEFORE THE RESENT ENCING. ALSO THAT ELECTROCUTION WAS CRUEL AND UN USUAL AND THEN THREE ISSUES ON WHETHER THE MITIGATION THAT WAS OFFERED SHOULD HAVE BEEN FOUND.

SO NOT HING ATTACKING THE CONFESSION.

NO.THERE WAS NOTHING ATTACKINGTHE CONFESSION OR THE AVOID-ARREST AGGRAVATOR.

WHO WAS THE APPE LLATE COUNSEL?

MR . WILLINSKI. AND , A LSO , THE COMPETENCY AND PROPORTIONAL ITY . UNLESS THE COURT HAS ANY OTHER QUESTIONS , I WOULD ASK THE COURT TO AF FIRM AND RELY ON MY BRIEF FOR ANY OTHER ARGUMENTS. THANK YOU.

TO COR RECT MY MISSTATEMENT, THERE WAS A CASE MANAGEMENT HEARING IN JULY , BEFORE THE TRIAL COURT. I BELIEVE IT WAS JUDGE BROWN THEN DEN IED POSTCONVICTION MOTION.

THAT IS SOMEWHAT SIGNIFICANT, BECAUSE THAT GAVE THE WHOLE IDEA OF THIS CASE MANA GEMENT CONFERENCE , H UFF HEARIN G, WAS TO ALLOW COUNSEL THE OPPORTUNITY TO , REALLY, F LESH OUT IF THERE WERE , YOU KNOW, MAYBE THE PLEADING WAS NOT QUITE AS SPECIFIC BUT IT GA VE, WOULD GIVE YOU A CHANCE TO SAY , NO , I HAVE A SPECIFIC EXPERT , AND THIS IS WHAT THIS EXPERT WILL SAY, AND THIS IS HOW IT RELATES TO THE CASE , AND I AM HAVING A HARD TIME UNDERSTANDING WHY , WHAT DID Y OU SAY ABOUT IT AT THE TIME OF THE CASE MANAGEMENT CONFERENCE?

I DID INDICATE THAT THERE WAS A FALSE CONFESSION EXPERT THAT WOULD BE AVAILABLE TO TESTIFY AT AN EVIDENTIARY HEARING.

BUT YOU HAD NEVER ACTUALLY TALKED TO THIS P ERSON AND HAD THIS PE RSON GO OVER THE CONFESSION.

I DID TALK T O THIS, THAT PERSON, B UT I DID NOT SEND HIM ANY OF THE DO CUMENTS. I WAS WAITING TO SEE IF I COULD GET AN EVIDENTIARY HEARING .

WHAT MS. CAMPBELL IS SAY ING IS THAT, REALLY , HOW, WHAT IS IT A BOUT , EVEN THE FACTS SURR OUNDING THE CONFESSION THAT WOULD SHOW THAT IT IS A FALSE CONFESSION ?

IT WOULD BE ARGUED THAT, BECAUSE I T WAS , I T IS TERMED A TYPICAL FALSE CONFESSION, THE FACT THAT THE DEFE NDANT SAID, WELL , W E STRUGGLED FORTHE GUN. OFTEN IN FALSE CONFESSIONS THE DEFENDANT THEN COMES ANDSAYS IT WASN'T FIRST-DEGREE MURDER. IT WAS FELONY MURDER.WHAT HAPPENED WAS THAT THIS PER SON CAME AND TRIED TO TAKE MY GUN FOR ME AND WE STRUGGLED FOR THE GUN N ALOT OF FALSE CONFESSION CASES, THAT IS TYPICAL OF WHAT IT IS.

IS THAT WHAT YOU ARGUED IN THE AMENDED MOTION?

I DIDN'T ARGUE IT VERY WELL IN THE AMENDED MOTION. I TOUCHED ON IT , BUT I COULDHAVE DO NE A BETTER J OB.

HOW OLD IS MR . BRYANT OR HOW OLD WAS HE AT THE TIME OF THE CONFESSION?

24.

IS THERE ANYTHING ABOUT HIS MENTAL STATE , AS FAR AS WHETHER HE IS OF A SUBSTANDARD IQ OR INTELLIGENCE , ANYTHING ELSE THAT WOULD BE SOME OF THE INDICIA OF INDIVIDUALS THAT MIGHT TEND TO CONFESS TO CRIMES THEY DID NOT COMMIT?

YES. THERE WAS A COMPETENCY HEARING , AND THERE WAS A DOCTOR UPH ELD WHO WAS A FORENSIC NEUROPSYCHOLOGIST, WHO INDICATE ADD THAT MR . BRYANT HAD SIGNIFICANT NEUROLOGICAL PROBLEMS, DUE TO CHILDHOOD MENINGITIS , SOME BLOOD L OSS, AND THERE WAS A BL OW TO HIS HEAD THATYOU COULD ACTUALLY SEE , DR . PELL TESTIFIED THAT YOU COULD SEE THE INDENTATIONFROM THE PIPE WHERE HISBRAIN HAD BEEN SOFTENED.

WAS THAT PUT O N AS MITIGATION EVID ENCE?

THAT WAS PUT ON NOT AS MITIGATION EVIDENCE.THAT WAS PUT ON AS FAR AS THE COMPETENCY HEARING , ASFAR AS MR. BRYANT, WHETHERHE WAS COMPETENT TO STAND TRIAL .

WHAT WAS PUT ON IN THE PENALTY PHASE ABOUT, FOR MITIGATION?

THERE WAS SOME INFORMATION REGARDING MR . BRYANT'S CHILDHOOD. THERE WAS PUT ON , SOME INFORMATION REGARDING HIS CHILDHOOD ILLNESSES AND ALOT OF ABUSE BY HIS FAMILY.

THE DO CTOR PELL DID NOT TEST SNI.

SHE DID NOT COME BA CK AND TESTIFY.

AND YOU HAVEN'T ALLEGED HERE THAT THERE WAS ANY DEFICIENCY IN THE PENALTY P HASE PERFORMANCE BY TRIAL COUNSEL.

NO. I HAVE NOT. JUST TO C LEAR U P ONE OR TWO MATTERS REGA RDING THE INITIAL POSTCONVICTION MOTION AND THE STRI KING OF IT, WHAT HAPPENED WAS THAT THE INITIAL POSTCONVICTION MOTION WAS FILED ON NOVEMBER 21. THEN THE STATE STRUCK THE , MOVED TO S TRIKE THAT INITIAL POSTCONVICTION MOTION ON A D AY THAT THE POSTCONVICTION MOTION WAS DUE. AND THEREFORE THE HEARING WAS THE DAY AFTE R, O N DECEMBER 12, AND THEN THE TRIAL COURT AS KED FOR US TO COME BACK ON DECEMBER 1 9, AND THEN THE TRIAL COURT DID NOT ISSUE AN ORDER REGARDING STRIKING THAT MOTION, ALTHOUGH HE DID SAY AT THEHEARING ON THE 19th, YES, I AM STRIKING THAT MOTION.

BUT BY HAVING , WHEN THE JUDGE ENDED UP IN JULY HAVING THE STATUS CONFERENCE , AND , IN TERMS OF , IF WE ACCEPT, NO W, THAT THE TRIAL JUDGE HAS RULED ON THEMERITS, WHAT IS , YOU KNOW, IF IT WAS DONE WRONG BUT NOW O N THE MERITS , THERE REA LLY SHOULD HAVE BEEN A SUMMARY DENIAL , I GUESS THIS JUST GOES TO THE ISSUE OF DID IT AFFECT THE HEARING? I MEAN , WAS THE MAJORITY OF THE HEARING ABOUT WHETHERTHERE WAS SUBJECT MATTER OVER THERE, AS OPPOSED TO ONWHETHER THERE SHOULD BE AN EVIDE NTIARY HEARING?

NO. THE JUDGE ALLOWED US TO A RGUE WHAT WAS IN DISPUTE AS FAR AS FA CTUAL ISSUES , WHETHER WE NEED AN EVIDENTIARY HEARING AND WHAT WERE THE L EGAL ISSUES, SO SHE DID ALLOW US T O

THEN SHE GAVE AN ALTERNATIVE ORDER REGARDINGOTHER ISSUES.

YES , SHE DID , YOUR HONOR. I DID WANT TO ADDRESS WHAT THIS COURT BROUGHT UP AS FAR AS THE INEFFECTIVE ASSISTANCE OF APPE LLATE COUNSEL REGARDING THE SUPPRESSION ISSUE AND THE AGGRAVATOR OF AVOID ARREST . I WOULD ARGUE THAT THIS COURT SHOULD REMAND, IF YOUR HONORS FI ND THAT THE AVOID-ARREST AGGRAVATOR WAS IMPROPERLY APP LIED , REMAND TO THE TRIAL COURT FOR ANOTHER SENTENCING HEARING. ALSO REGARDING THE INEFFECTIVE ASSISTANCE OF COUNSEL , APPELLATE COU NSEL WITH THE CONFESSION ISSUE , THAT IS A CRUCIAL ISSUE , BECAUSE OF THE FACT THAT , WITHOUT, BUT FOR THAT CONFESSION, THERE WOULD BE NOTHING LINKING MR. BRYANT TO THE CRIME, AND THEREFORE IT WAS DEFICIENT PERF ORMANCE BY APPELLATE COUN SEL, FORFAILING TO R AISE THIS ON DIRECT APPEAL. THANK YOU VERY MUCH.

CHIEF JUSTICE: THE COURT WILL BE IN RE CESS UNTIL NINE O'CLOCK TOMORROW MORNING. MARCH HARMARCH PLEASE RISE.

MARSHAL: PLEASE RISE.