MARSHAL: PLEASE RISE . HEAR YE.HEAR YE.HEAR YE.THE SUPREME COURT OF FLORIDAIS NOW IN SESSIO N.ALL WHO HA VE CA USE TO PLEA, DRAW NEAR, GIVE ATTENTION AND YOU SHALL BE HEARD. GOD B LESS T HESE UNI TED STATES, THIS GREAT STATE OF FLORIDA AND THIS HON ORABLECOURT. LADIES AND GENTLEMEN, THE FLORIDA SUPREME COURT.PLEASE BE SEATED.
CHIEF JUSTICE: G OOD MORNING , LADIES AND GENTLEMEN. WELCOME TO THE FLORIDASUPREME COURT.THE FIRST CASE ON THIS MORNING'S DOCK ET IS LaMA RCA VERSUS STATE OF FLORIDA. MR . CAN NON OF.
MADAM CHI EF JUST ICE , ASSOCIATE JUSTICES, MY NAME IS PETER CANNON FR OM CCRC , THE MID DLE REG ION.I AM HE RE ON BEHALF OF MR . ANTHONY LaMARCA. MAY IT PLEASE THE COURT . ANTHONY La MARCA IS INNOCENT OF THESE OFFENSES. HE WAS CONVIC TED BY THE PERJURED TESTIMONY OF T WO JAILHOUSE SNITCH ES AND THE FABRICATED STORY OF TAN YAFLYNN. THE TESTIMONY O F JAMES MICHAEL E WES , THE FIRST SNITCH, EX CUSE ME , JA MES MICHAEL EWES IS A PROTOTYPICAL JAIL HOUSE SNITCH. HIS TESTIMONY WAS F ALSE .
CHIEF JUSTICE: LET'S GO , WHICH POINT ARE YOU , ARE YOU GOING TO ARGUE ?
THIS IS GOING TO BE THE PROSECUTOR IAL MISCONDU CT OF BRADY AND GIGOLO , MA DA M CHIEF JUST ICE.
CHIEF JUSTICE: ISSUES, 2 , 12 AND 14.
SEVEN, I HA VE.
CHIEF JUSTICE: OKAY. I WA NT TO MAKE SURE.
HOW AB OU T GETTING RIGHT TO IT.YOU KNOW , WE HAVE THIS LIMITED AMOUNT OF TIME , AND ALL OF THIS STUFF A BOUTGETTING RIDE TO -- RIGH T TO THE JUGULAR OR WHA TEVER , IS ESPECIALLY IMPORTANT IN A CASE LIKE THIS. TELL US WHICH ISSUE IT IS, AND THEN IF YOU , PLEASE , WOULD DEMONSTRATE HOW YOU BELIEVE THE TRIAL C OURTERRED IN TREA TING THE ISS UE.
CORRECT. WITH REGARD TO THE TH REE MAIN WITNESSES, THE THREE MAIN WITNESSES IN THIS CASE , I AM GOING TO ATTEMPT T O COVER. JAMES MI CHAEL EWES , HIS TESTIMONY WAS FALSE , FABRICATED, AND IT WAS PRESENTED BY THE STATE IN THAT MANN ER. JAMES MIC HAEL EWES , AGAIN,IS A TYP ICAL JAILHOUSE SNITCH.
HOW D O WE KNOW , WHAT EVIDENCE WAS PRESENTED THAT WOULD LEAD US TO THE CONCLUSION THAT THIS EVIDENCE IS FAL SE?
MR . EWES WAS INCARCERATED IN CHAR LOTTE COUNTY. DURING THE POSTCONVICTION PROCESS , DURI NG THE ADDITIONAL RECORDS SEARCH , WE DISCOVERED RECORDS DOWN IN CHAR LOTTE COUNTY, THAT THERE WAS AN A CTIVE COOPERATION BETWEEN THE STATE ATTORNEY IN PIN ELLAS COUNTY AND THE STATE ATTORNEY IN CHAR LOTTE COUNTY, AND IN AN ATTEMPT TO T RY AND REDUCE MR. EWES EXPOSURE.MR. EWES IS A LIFELONG FELON. HE HAS GOT NUME ROUS FELO NIES .
WHEN DID THIS AC TIVE PARTICIPATION TAKE PLACE?
DURING THE PEND ENCY OF MR . LaMARCA'S TRIAL. MR. EWES WAS IN PRIS ON, EXCUSE ME, IN CHARLOTTE COUNTY, IN CUSTODY SOMETIME AROUND SEPTEMBER. MR . LaMARCA 'S TRIAL WAS IN NOVEMBER, A AND DURING THAT TIME WHICH WAS NEVER REVEALED TO THE STATE , T HERE WAS AN ACT IVE COMMUN ICATION BETWEEN CHARLOTTE COUNTY AND PINELLAS COUNTY.
NEVER RE REELED IS -- REVEALED TO THE STATE?
EXCUSE ME. NEVER RE VEALED TO THE DEFENSE BY THE STATE OF THIS COMMUNICATION.HOWEVER, WHAT IS M ORE IMPORTANT IS DURING DEPOSITION, MR. EWES AND D URING HIS TEST IMONY , W ASASKED BY THE STATE ATTORNEY,DID YOU RECEIVE ANY DE ALS, ANY BENEFITS WHAT SOEVER IN EXCHANGE FOR YOUR TESTIMONY? MR. EWES SAID, NO , I DID NOT .
WHAT YOU SE EM TO BE DOING IS MAKING AN ARGU MENT LIKE YOU W OULD MAKE IT TO THE FACT FINDER O F THE TRIAL JUDGE AT THE HEARING BELOW. TELL US HOW THE TRIAL JU DGE TREATED THIS ISSUE AND WHERE THE TRIAL JUDGE WENT OFF THE TRACKS, AS YOU CL AIM I T.
CORRECT. IN THE LOWER COURT'S ORDER, IN ANALYZING MR . EWES'S CLAIM, OUR C LAIM AGAI NST MR . EWES , THE TRIAL TO OK A VERY NARROW ME ANING OF WHAT A "DEAL" IS. THE STATE ATTORN EYS WERE SAYING THERE IS NO D EAL.THERE IS NO DEAL. HOWEVER, TH AT IS A NA RROW READING OF THE CASE LAW, WITH REGARDS TO A BEN EFIT THAT IS CONFERRED UPON A PERSON WHO IS GOING TO TESTIFY, ESPECIALLY UNDER GIGLIO AND BRADY. THE POLESTAR OF THAT IS N OT SO MUCH WHAT IS THE END RESULT, DID M R . EWES GET AN END RESULT.IT IS THE IMPRESSION THAT WAS CONVEYED TO THE JURY A NDTO THE JUDGE THAT MR. EWES WAS THERE ON HIS OWN AC CORD AND TESTIFYING, JUST AS A GOOD, SO LID CITI ZE N , W HICH IS ABSOLUTELY FALSE. AND THIS WAS BR OUGHT OUT B Y THE STATE. NOW , THE LO WER COURT, THEY NEVER CONDUCTED ANY SORT OF MATERIALITY ANALYSIS. NEVER GOT TO THAT APPOINTMENT, BECAUSE THEY FOUND THAT THERE WAS NO DEAL , BECAUSE THE COURT FOUND THAT THERE WAS NO DEAL. QUOTE/UNQUOTE. BECAUSE THE STATE ATTO RNEYS TESTIFIED WE NEVER HAD A DEAL, BU T THAT IS NOT THE STAND ARD.THE COURT DOES AGREE WITH ALL OF THE F A CTS IN THE COURT'S ORDER. IT AGREES THAT , YES , THERE WAS THIS RUN SHEET , THIS DOCKET SHEET THAT WAS D OWN IN CHARLOTTE COUNTY. IT DOES SH OW THIS COMMUNICATION, AND IT IS NOT JUST ONCE, IT IS NOT T WICE. FOUR OR FIVE TIMES , BEFORE AND AF TER.
IT SHOWS THE COMMUNICATION, AND WHAT WAS THE NATURE OF THE COMMUNICATION? I SEE WHAT WE NEED IS THE EVIDENCE THAT DEMONSTRATES CLEARLY , THAT THERE WAS SOME DEAL BETWEEN THE STATE AND THIS WITNESS PRI OR TO THE WITNESS TESTIFY ING OR IN CONSIDERATION OF THE TESTIMONY.
CORRECT. THE EVIDENCE WAS THAT , AGAIN , THERE WAS THE COMMUNICATION. MR. EWES'S SENTENCING WAS DELAYED UN TIL AF TER MR . LaMARCA'S TESTIM ONY. HE WAS SUPPOSED TO BE SENTENCED BEFOREHAND , AND THE TRANSCRIPTS FROM CHARLOTTE COUNTY THAT WERE INTRODUCED AT THE EVIDENTIARY HEARING, THEY HAD POSTPONED THAT UNTIL AFTER MR. LaMARCA 'S TRIAL AND MR. EWES'S TESTIMONY IN THAT TRIAL, TO SEE WHAT W ASTHE EXTENT OF H ISCOOPERATION, WHO SEE HOW HE DID COOPERATE. AGAIN --
IS THAT PART OF THE , REFLECTED IN THE RECO RDS ? THAT IT WAS SPECIFICALLY HELD OFF SO THEY COULD MAKE THIS DETERMINATION, AND THERE IS E V IDENCE SUPPORTING THAT?
OH, ABSOLUTELY. ABSOLUTELY .
AND THIS CAME THR OUGH THE STATE ATTORNEY?
THE STATE ATTORN EY DOWN IN CHARLOTTE COUNTY. IF I COULD JUST , REAL K BI K QIK , INTER CEDE WHAT - - R EAL QUICK, ENTER VEE D WHATHAPPENED. THIS WITH REGARD TO MR . EWES WAS QUITE INTERESTING DURING THE POSTCONVICTION PROCESS. WE ASKED FOR THOSE RECORDS AND WERE TOLD THAT THEY DID NOT EXIST. I WENT DOWN THERE PERS ONALLY TO CHARLOTTE COUNTY T O REVIEW MR. EWES'S FI LE. THERE WERE NO RUN NOTES IN THE FILE. THEY HAD TAKEN THEM OUT. I ASKED THE STATE ATTORNEY DOWN THERE WHY THAT HAPPE NED , AND JUST PRIO R TO TRIAL , DAYS BEFORE THE EVIDENTIARY HEARING, W E RECE IVED THESE RUN NOTES, AND ASKING MR . BURNS, THE STATE ATTORNEY DOWN THERE , WHY THEY W ERE TAKEN O UT. HE COULD NOT GIVE US AN EXPLANATION.COULD NOT GIVE US EVEN A REASON WHY. WE ARGUED BEFORE THE T RIALCOURT IN PINELLAS COUNTY. WE KNOW THERE ARE RECORDS THERE. WE WANT THOSE RECORDS AND THIS IS WHAT WE ARE LO OKING FOR SPECIF ICALLY , RUN NOTES , ANY SORT OF DO CKET NOTES INDICATING THAT THERE MAYHAVE BE EN A DEAL. THEY HAD PURPOSEFULLY TAKEN THOSE NOTES OUT AND THEN REALIZED WE HAD BETTER GO AHEAD AND GIVE THEM OVER , BUT IT WAS JUST DAYS BEFORE , AND THIS IS SORT OF A PATTERN OF PROSECUTORIAL MISCONDUCT.
CHIEF JUSTICE: NO W, LE T'S JUST GO , A G AIN, UNDERSTANDING WH ETHER , UNDER THE GILIO CLAIM , ALLEGING THAT MR . EWES G AVE FALSE TESTIMONY.
CORRECT.
CHIEF JUSTICE: WHAT ABOUT ACCEPTING THE ISSUE ABOUT THERE BEING S OME CONSIDERATION. WHAT ABOUT WHAT HAVE YOU ESTABLISHED IN THIS RECORD TO SHOW THAT MR . EWES'S TESTIMONY WAS FALSE?
AGAIN, HE WAS ASKED BY THE STATE , DID YOU RECEIVE ANY BENE FIT , T WO T IMES DURING DEPOSITION AND DURINGTESTIMONY, IN EXCHANGE FOR YOU COMING BEFORE THE JURY. HE SAID NO.
CHIEF JUSTICE: SO NOW WE HAVE A CH ICKEN AND THE E GG, WHICH WE SEE A LO T OF TIMES HERE, SO WE FIRST HAVE TO ACCEPT THAT WHAT YOU HAVE NOW DISCOVERED IS EVIDENCE OF CONSIDERATION . CORRECT?
CORRECT .
CHIEF JUSTICE: ALL RIGHT. SO NOW LET'S GO BAC K TO WHAT , SINCE OBVIOUSLY THIS IS A BIG ISSUE , AN IMPORT ANT ISSUE I F IT WAS SUPPRESSED AND HE GAVE FALSE TESTIMONY ON THIS , WHAT IS YOUR BEST EVIDENCE THAT T HERE WAS CONSIDERATION GI VEN , AND IS IT THE RUN NOTES? IS THAT THE --
IT WOULD BE THE RUN NOTES AND, AL SO, THE TESTIMONY OF THE STATE ATTORNEY , S HAWNCRAIN , WHO -- SHAWN C RANE , WHO TESTIFIED THAT WE WERE IN COMMUNICATION. I DID GO AHEAD AND MR . LaMARCA TESTIFIED. HE COOPERATED. HE TOLD THEM. AND AFTER THAT, THAT I S W HEN MR. EWES , WHO WAS A HFO , WHOSE EX POSURE TO PRISON WAS EXTREME , RECEIVED A BELOW-GUIDELINES, AND IT SAYS IN THE RUN NOTES THAT HE RECEIVED A BELOW-GUIDELINES SENTENCE , BASED ON HIS COO PERATION I N THE LaMARCA CASE !
WHAT A BOUT THE INTE RNAL GUIDELINES. PART OF THE TEST MONDAY OF THE STATE ATTORNEY IN CHARLOTTE COUNTY WAS THAT HE WAS NOT HABITUAL IZED BE CAUSE IT WAS , HE HAVE -- EVEN THOUGH HE MAY HAVE TECHNICALLY QUALIFIED, IT WOULD HAVE BEEN INCONSISTENT WITH HIS POLI CY AS A S TATEATTORNE Y?
RIGHT. HE DID TESTIFY TO THAT , AND APPARENTLY WHAT IS APPA RENT FROM THE RUN NOTES AND SO FORTH, EVEN THO UGH HE WAS POSSIBLY NOT HFO ELIGIBLE , THE DATES AFTER THAT SHOW THAT THEY WERE ST ILL ACTIVELY PURS UING A HFO , AND EVEN DURING THE P LEA AND ON THE PLEA SHEET, IT SAYS POSSIBLE HFO, SO THEY H ADGONE THRO UGH THE ENT IRE PROCESS, OBTA INED AL L THE NECESSARY CERTIFIED COP IES OF CONVICTION. HEAVE CHIEF YOU ARE SA YING , THOUGH, THE DOWN WARD DEPARTURE SAYS THAT IT WAS A RESULT OF HIS COOPERATION IN THE LaMARCA CAS E?
ABSOLUTELY. IT IS VERY CLEAR. VERY CLEAR FROM THOSE NOTES THAT WE DISCOV ERED O R W ERE GIVEN.
THIS WAS AFTER THE FACT THAT HE , BUT THE TRIAL COURT IS DEALING WITH WHETHER THERE WAS AN AGR EEMENT BEFORE THE FACT , CORRECT?
WELL , THE TRIAL COURT --
THAT IS WHAT THE TRIAL COURT WAS DEALING W ITH.
THE TRIAL COURT, AGAI N, TOOK A VERY NARROW AND TECHNICAL --
WELL , THE TRIAL C OURTMADE THE SPEC IFIC FI NDING THAT BURNS WAS UNEQUIVOCAL IN HIS TESTIMONY THAT HE NEVER CONTACTED ANYONE IN THE SIXTH CIRCUIT, ABO UT AN AGREEMENT, AND THAT NO PROMISES WERE EVER MADE TO HUGHES. JUDGE SHAWN CR ANE TESTIFIED TO THE SAME EF FECT. I MEAN, THA T IS WHAT THE TRIAL COURT FO UND, RIG HT ?
THAT IS A --
YES?
WITH THOSE FACTS , YE S. THEY WERE VERY CLE AR, OVER AND OVER AGAIN. IF WAS AL MOST ON PURPOSE -- IT WAS ALMOST ON PURP OSE. THESE ARE S MART PRO SECUTORSNOW. THEY ARE NOT GOING TO GIVE A DEAL BEFORE HAND , BU T THAT I S NOT WHAT THE CASE LAW , THE VARIOUS ESTABLISHED CASE LAW STATES . GIGLIO AND SO FO RTH , HAPU AND SO FORTH. IT IS NOT THE END RESULT BUT THE DEAL THAT WAS MADE. IT IS THE INTERVENTION ON BEHALF OF THE STATE ATTORNEY AND SMIT H. IF THERE IS NO RELEVANCE O F A STATE ATTORNEY --
GIGLIO IS THAT THE STATE STOOD BE HIND TESTIMONY THAT IT KNEW THAT IT WAS FALSE, AND IF THERE HAD , WAS NOT AN AGREEMENT PRIOR TO THE TESTIMONY, THEN HOW COULD THAT TESTIMONY BEF ALLS ?
IT WAS FALSE , BEC AUSE IT IS NOT BASED ON A TECHNICAL DEAL. YOU DON'T HAVE TO HAVE , I N THE CASE LAW IT IS CLEAR , YOU DON'T HAVE TO HAVE A WRITTEN AGREEMEN T FOR THERE TO BEFA LLS TESTIMONY. THE AC TUAL POLESTAR -- TO BE FALSE TESTIMONY. THE ACTUAL POLE STAR, WHAT WE ARE LOOKING FOR IS WHETHER THERE WAS TESTIMONY GIVEN TO THE COURT AND TO THE JU RY THAT WAS CONTRARY , THAT CREATED A CONT RARY IMPRESS ION.AS FAR AS WE K NOW, WHEN YOU READ THE TRANSCRIPT , THE JURY IS BELI EVING THAT MR . EWES, WHO IS A LIFELONG FELON --
YOU SEEM TO BE SAYING THAT , IN FAC T THERE WAS A DEAL, BUT IT WAS SORT OF I N THE FORM OF , WELL , LET'S WAIT AND SEE JUST HOW GOOD YOUR TESTIMONY IS FOR THE STATE, AND IF IT TURNS OUT TO BE REALLY SUPER G OOD,THEN, YOU KNOW , MAYBE SOMETHING GOODWILL HAPPEN TO YOU.ALL RIGHT.BUT IF IT DOES N'T , THEN , MAYBE YOU KNOW , NOT HING GOODWILL HAPPEN FOR YOU . NOW, WHERE IS THE EVIDENCE TO SUPPORT? IS THAT WHAT YOU ARE SAYI NG?
RIGHT .
ALL RIGHT. WHERE IS THE EVIDENCE TO SUPPORT THAT THAT WAS GOING ON? THAT IS THAT OBVIOUSLY THE BEST EVIDENCE OF THAT W OULD BE EITHER THE JAIL HOUSE SNITCH OR THE ASSISTANT STATE ATTORNEY OR WHO EVER , SAYING, WELL, THAT IS WHAT I TOLD HI M.NOW , WHAT IS YOUR , WHAT IS YOUR CONT ENTION , FI RST OF ALL , AS I PARAPHRASED IT? HOW WOULD YOU PHRASE IT? AND THEN WHERE IS THE PRO OF OF IT?
I WOULD PRO BABLY NOT IMPROVE U PON YOUR PARAPHRASING, BEC AUSE ITHINK THAT IS CORRECT . BUT THE BEST EVIDENCE WOULD BE THE RUN NOTES , WHICH CLEARLY STATE AT THE END , THE DOWNWARD DEPA RTURE , BASED ON MR . LaMARCA 'S COOPERATION WITH , YOU KNOW, THESE NOTATIONS , CA LLED SHAWN CRANE, AND SHAWN CRANE --
CHIEF JUSTICE: LET'S GO BACK, THOU GH, TO, BECAUSE A LOT OF THIS WOULD BE WHAT MR . EWES'S PERCEPTION IS OF WHATWAS GOING TO HAPPEN TO HIMWITH RESPECT TO HIS CHARGES, IF HE TESTIFIED FAVO RABLY . NOW, DID MR . EWES TESTIF Y IN THE EVIDEN TIARY HE ARING?
NO, HE DID NOT .
CHIEF JUSTICE: SO WHAT IS THE EVIDENCE OF WHAT CONTACT, WHAT DISCUSSIONS THERE WERE? WHAT DID THE PROSEC UTOR SAYTHAT THEY DISC USSED WITH MR . EWES, CONCERNING HIS SENTENCING, BEFORE MR . HUGHES TESTIFIED?
IT WAS THE EVIDENCE NOT SO MUCH OF THE CONTACT WITH MR. EWES , AL THOUGH THERE WAS BETWEEN MR. EWES AND MR . COOPER, AND THAT IS MENTIONED - -
CHIEF JUSTICE: WHAT WAS THAT CONT ACT? WHAT WAS SA ID?
WELL , H E WAS , HE C AME OUT AND SAID I AM SHO OTING FOR A DEAL. I AM SHOOTI NG FOR SOME SORT OF CONSIDERATION IN THE DEPOSITION . AND THEN IN THE RUN NOTES --
CHIEF JUSTICE: WEL L, IN THE DEPOSITION THAT HE GAVE BEFORE THIS TRIAL?
CORRECT .
CHIEF JUSTICE: ALL RIG HT. WELL, SO , THAT , WAS HE CROSS-EXAMINED ON THAT AT TRIAL, THAT HE WAS HO PING FOR A DEAL? IN OTHER WORD S THE JURY KNEW THAT HE HAD PE NDING CHARGES , KNEW THAT THE SENTENCING HAD NOT TAKEN PL ACE .
CORRECT.
CHIEF JUSTICE: AND SO HE WAS CROSS-EXAMINED AS TO WHETHER HE WAS HOPING THAT , IF HE TESTIFIED FAVORABLY , HE WOULD HAVE LE SS OF A SENTENCE?
CORRECT.
CHIEF JUSTICE: WELL, , SO THEN, WHAT WAS, WHAT DID THE JURY NOT HEAR?
WELL, THE JURY DID N OTHEAR THAT THERE WAS AN ACTUAL NEGOTIATION BE TWEEN THESE TWO STATE ATTORNEYS AND THAT THERE WAS THIS COMMUNICATION BACK AND FORTH.
CHIEF JUSTICE: THAT IS WHERE, AGAIN, WE HAVE TO G O BACK TO WHETHER THE TRIAL COURT'S FINDING THAT THERE WAS NO ACTUAL NEGOTIATION , SO TO SPEAK , IS ENTITLED TO DEFERENCE .
WELL, NO , BECAUSE THE TRIAL COURT FOUND , AS A MATTER OF FACT, THAT THESE EVENTS DID TAKE PLACE , THATTHERE WAS , SHAWN CRANE TESTIFIED THAT THERE WAS COMMUNICATION THAT HE DID GOAHEAD AND CALL THE STATE ATTORNEY IN CHARLOTTE AND THAT HE DID FULLY COOPER ATE AND HE DID A FINE JO B. THE EXISTENCE OF A DEAL IS MORE OF A CONCLUSION OF LAW , WHETHER THAT DEAL DID EX IST. IT IS , CASES HAVE COME BAC K AND FORTH TO DE FINE IT .
WELL, DOESN'T THE D EAL HAVE TO INCLUDE T HEDEFENDANT AND NOT JUST TWO STATE ATTORNEYS? I THIN K THAT IS THE MISSING LINK HERE , IS WAS THIS INFORMATION THAT WAS G OINGBACK AND FORTH BET WEEN THE TWO STATE ATTORNEYS , BEING COMMUNICATED TO MR . HUGHES?
IT WAS AND IT IS IN T HERUN NOTES THAT IT WAS BEING COMMUNICATED TO MR. EWES , BECAUSE THEY ATTEMPTED TO FIND ONE DEAL , WH ICH WAS A DEAL THAT WOULD KE EP HIM ENTIRELY OUT OF PRISON AND THEN THAT SORT OF FELL THROUGH, SO THERE WERE THESE DEALS GOING BACK AND FORTH . HOWEVER --
WHO IS "THE Y" HER E? IS THAT HIS PU BLIC DEFEND ER?
CORRECT. HOWEVER, HIS SENTENCING, CLEARLY WE KNOW THAT THERE WAS COMM UNICATION , BECAUSE HIS SENTENCING AT THE BE HEST OF HIS PUBLIC DEFE NDER , IS DELAYED U NTIL AFTER HIS TESTIMONY IN MR . LaMARCA 'S CASE.
SO HOW DO WE KNOW THAT THIS IS N'T JUST APARTMENTENT OF THE PUBLIC DEFENDER -- ISN'T JUST ATTE MP T OF THE PUBLIC DEFEND ER TO GET THE BEST POSSIBLE DEAL FOR HIS CLIENT, WHICH IS THE PRIMARYPURPOSE OF HIS ATTORNEY? HOW DO WE KNOW T HERE W ASMORE THAN THAT?
BECAUSE IT WAS COMMUNICATED BY H ISATTORNEY.
WHAT WAS INDICATED?
THESE CALLS BAC K AND FORTH ABOUT THE LE VEL O F COMMUNICATION, HOW IS HE DOING AND SO FORTH.
BEFORE OR AFTER?
BOTH. BOTH BEFORE THE TRIAL AND AFTER.
WAS IT IN ANY RELATIONSHIPS TO H UGHES REQUESTING A CONTINUA NCE?
ABSOLUTELY. THAT IS EXACTLY WHY T HEY REQUESTED A CONTINUANCE, TO SEE WHAT LEVEL OF HIS COOPERATION --
CHIEF JUSTICE: I FEEL IMUST RE MIND YOU , YOU ARE USING YOUR REBUTTAL TIME IN ANSWERING OUR QUESTIONS. THANK YOU VERY MUCH . MR. BRO WNE.
GOOD MORNINGT. SCOTT BROWNE FOR THE STATEOF FLORIDA. YOUR HONORS, ONE THING THAT IS ABSO LUTELY CLEAR , B ASEDUPON THIS RECORD , IS T HAT THERE WAS NO DEAL BETWEEN THE STATE IN EXCHANGE FOR MICHAEL HUGHES'S TESTIMONY.
CHIEF JUSTICE: LET'S GO BACK. I THINK WE HAVE GOT A CONTINUUM , OF COUR SE, A DEAL BEING SOMETHING EXPLICITLY IF YOU DO THIS, YOU WILL RECEIVE A CERTAIN SENTENCE. THE OT HER END , WHICH IS WHAT THE JURY KNEW , WAS THAT HE WAS HOPI NG THAT IF HE TESTIFIED FAVORABLY , HEWOULD HAVE A REDUCED SENTENCE. IN BETWEEN THERE IS T HEQUESTION OF WHETHER THERE IS THINGS THAT WERE HAPP ENING THAT WAS MORE THAN JUST MR . HUGHES'S HOPE THAT THERE WAS AN ACTUAL DISCUS SION THAT WAS TAKING PLACE, THAT WOULD LEAD SOMEBODY TO A REASONABLE EXPECTATION THAT THE STATE WAS GOING TO M AKE SURE THAT MR. HUGHES HAD A LESSER SENTENCE, AND THAT IS WHERE WE ARE, IT IS THAT GRAY ZONE.COULD YOU HELP U S CLARI FY A S TO WHAT , EXA CTLY , WAS DISCOVERED AFTERWARDS , THROUGH THESE RUN NOTES , THAT WEREN'T, THAT THE DEFENDANT DIDN'T KNOW AT THE TIME, ABOUT THE COMMUNICATIONS BETW EEN THE PROSECUTORS.JUST AT LE AST HELP US TO WHAT THE BARE FACTS ARE THAT ZEMUN DISPUTED ABOU T WHAT WAS BEING DISCUSSED.
YES, YOUR HONOR -- BARE FACTS ARE THAT ARE NOT DISPUTED, ABOUT WHAT WAS BEING SDUDZ.
YES, YOUR HONO R. THE RUN NOTES , SPECIFICLY REFERRING ANY DELA Y IN SENTENCING WAS TO DETERMINE OR CHEC K ON HIS LE VEL OF COOPERATION.
CHIEF JUSTICE: BUT WOULDN'T THAT MAKE IS SENSE ? IT WOULD MAKE SENSE BECAUSE IF THE PUBLIC DEFENDER IS FIGURING IF HE COOPERATES , THAT HE IS GOING TO GET A BETTER SENTENCE , THEN THAT IS WHAT HAPPENED.
YES, YOUR HONOR.
CHIEF JUSTICE: BUT IS THERE ANY MEA T TO THAT EXPECTATION, AS FAR AS DISCUSSIONS, I ME AN, WHAT WERE THESE DISCUSSIONS BET WEEN THE TWO STATE ATTORNEYS?
YOUR HONOR, THE RECORD ESTABLISHES, NUMBER ONE, THAT PROSECUTOR SHAWN CRANE, IF HE DID TALK TO ANYONE, WOULD HAVE STATED SIMPLY AND DID STATE THAT THERE WERE ABSOLUTELY NO DEALS, AND IF HE DID TELL , T ALK TO AN YONE IN CHARLOTTE COUN TY , ITWOULD HAVE BEEN THAT THERE WERE NO DEALS, NO BENEFI TS , NOTHING PROMISED IN EXCHANGE FOR HIS TESTIMONY. AND YOU HAVE THE PROSECUTOR FROM CHARLOTTE COUNTY COMINGIN HERE. WE DO N'T HAVE TO SPECU LATE. IF WE LOOK AT HIS TESTIMONY , HE SAID, LOOK , IF THERE HAD BEEN ANY BEN EFIT , AGR EEMENT OR DEAL IN MY C ASE , I WOULD HAVE PUT IT IN THE F ILE.IN FACT , HE NEVER TALKE D TO ANYONE FROM PIN ELLAS COUNTY DURING THE PLEA NEGOTI ATIONS , AND REGARDING --
CHIEF JUSTICE: WHO , WHAT WAS -- WHAT WAS THE COMMUNICATION THAT MR . CANNON IS TALKING ABOUT, THAT HE SAID DID OCCU R? WAS THERE ANY COMMUNICATION?
THE ONLY COMM UNICATION WAS THAT , AND, AGA IN, THISIS FR OM ME MORY , THAT PROSECUTOR CRAIN DID -- PROSECUTOR CRANE DID NOT RECALL TALKING TO ANYONE FROM CHARLOTTE COUNTY, BUT IF HE DID , HE WOULD HAVE SIMPLY NOTED THAT HE COOPERATED, AND THAT THERE WERE NO DEALS , NOTHING WAS PROMISED TO HIM IN EXCH ANGE FOR HIS TESTIMONY , AND THEN YOU HAVE MICHAEL HUGHES TESTIFYING AT TRIAL. HE TESTIFIED TRUTHFULLY THAT , HAY, LOOK, I HAVE NO BENEFIT -- HEY, LOOK , I HAVE NO BENEFIT, NOTHING FOR AGREEMENT. NOTHING BUT SOME HOPE.I HAVE PE NDING CHARGES . NOTHING COME OUT , THE JURY KNOWS THAT. THAT WAS DISC LOSED .
COUNSEL IS MA KING REPRESENTATIONS THAT THERE ARE OTHER THINGS , N OTNECESSARILY THE STATE ATTORNEY'S TESTIMONY, BUT OTHER THINGS OTHER EVIDENCE, SHOWING CONTACT AND SHOWING STATUS OF CASE S AND WHAT IS PENDING.THAT IS WHERE WE KEEP GOING. YOU KEEP GOING BACK TO D EAL AND WE UNDERSTAND THAT THEREIS NO DEAL. I THINK WHAT COUNS EL IS ARGUING IS THAT THERE IS OTHER EVIDENCE, SO IS THERE OR IS THERE NOT?
YOUR HONOR , I DON'T BELIEVE THERE IS. IN FACT, MR . CA NNON 'S BRIEF DOESN'T PROVIDE MA NY RECORD CITES THRO UGHOUT HIS BRIEF , AND I COULDN'T FIND ANY EVIDENCE OF THAT BE LOW AT ALL , THAT THERE WAS ANY SUBVERSE AGREEMENT OR ANY NEGOTIATION WHATSOEVER GOING ON BETWEEN --
HE IS INDI CATED THAT THERE WERE SOME K IND OF RUN NOTES THAT INDICA TE THERE WAS COMMUNICATION, BOTH BEFORE AND AFTER BETWEEN THESE INDIVIDUALS S THAT A YES OR A NO?
. YES , THERE WERE COMMUNICATIONS BUT ALL OF THOSE COMMUN ICATIONS RE VEAL --
ARE THERE NOTES THAT REFLECT THAT OR NOT?
YES, YOUR HONOR.
WHAT DO THEY TELL US?
A NOTE QUES TIONING HIS COOPERATION IN PINE LLAS COUNTY.
SO THERE IS A NOTE.
YES, YOUR HONOR, AND A NOTE SA YING ABSOLUTELY NO DEALS OR BENEFITS WERE MADE , QUESTION MARK, AND THEN HE TESTIFIES AT T RIAL AND HERE IS THE CHRONOLO GY.
CHIEF JUSTICE: WHAT DO YOU MEAN ABSO LUTELY NO DEA LS , BENEFITS , QUESTION MARK?
THAT IS HOW IT IS REFLECTED IN THE RECORD.
CHIEF JUSTICE: WHEN WAS THAT NOTE MADE?
THAT WAS MADE, I THINK AFTER HUGHES HAD ALREADY TESTIFIED, AND I HAVE TO REFRESH MY RECOLLECTION ON THAT.
CHIEF JUSTICE: YOU SE E, WHAT WE ARE CONCERNED ABOUT IS THAT OBVIOUSLY IT IS SORT OF LIKE THE QUESTION OF H OWYOU GET AR OUND MILES AN HOUR AND, A WHETHER YOU DE CIDE TO -- AROUND MIRA NDA , WHETHER YOU DECIDE TO SAY WHEN SOMEONE IS IN CUS TODY . "DEAL" HAS THIS MA GIC CONCEPT OF , OKAY , IF THERE IS A DEAL, THEN THE J URY IS GOING TO RE ALLY DISCRE DIT THE TESTIMONY , AND SO WHAT WE ARE REALLY , YOU KNOW, IF THERE WERE THESE DISCUSSIONS , AND TO SAY , L ISTEN , YOU DON'T HAVE TO TELL ME NOW , WINK- WINK, THAT YOU ARE GOING TO T REAT THIS G UY FAVORABLY, BUT I NEED T O KNOW THAT YOU WILL SO I CAN TELL HIM THAT , AND OF COUR SE THAT IS THE BIG IS SUE IS WHAT MR. HUGHES KNEW , AT THETIME THAT HE TESTIFIED , SO THAT IS WHY I WANTED TO FOCUS ON THAT, SO GIVE US FROM THE BEST V IEW , FROM THE DEFENDANT , WHAT WAS REVEALED THAT MAYBE THEY COULD HAVE USED A LITTLE BIT M ORE HEY ON, AT THE T IME OF T HETRIAL?
ABSOL UTELY NOTHING. BECAUSE AT THE TIME OF THETRIAL, HIS PUBLIC DEFENDER WAS TRYING TO NEGO TIATE A PLEA FOR HIM, AND THEN AT THE TIME OF TRIAL , WHEN THIS IS GOING ON, WHAT MR . HUGHES TESTIFIED TO IS ABSOLU TELY TRUE, AND ABSOLUTELY NOTHING PRESENTED AT THE EVIDENTIARY HEARING CONTRADICTS HIS TESTIMONY. SO NUMBER ONE , YOU HAVE N O FALSE TESTIMONY PRESEN TED. YOU DON'T HAVE A VI OLATION OF BR ADY, BECAUSE THERE IS NO BENEFIT, NO DEAL, N O AGREEMENT.NOW, THE APPELLANT , HE H I NTS AT SOME THING SIN ISTER , T HAT AFTER HE TESTIFIED, HIS PUBLIC DEFENDER USED THAT TESTIMONY IN AN ATTEMPT TO GET A FAVORABLE SENTENCE. WELL, THAT, THERE IS NO AGREEMENT THERE THAT HAD TO BE DISCLOSED. EVERY PUBLIC DEFENDER, EV ER, KNOWS THAT, AND THE JURY WAS EXPOSED TO. THAT THE JURY KNEW T HAT HUGHES HAD PEN DING CHARGES , THAT HE WAS HOP ING TO GET SOME KIND OF BENEFIT.
CHIEF JUSTICE: WHAT WAS THE MAXIMUM SENTENCE HE FACED?
THERE WAS A POTENTIA L AT LEAST FOR HABITUAL FELONY OFFENDER STAT US. HOWEVER, AS JUSTICE B ELL POINTED OUT, HE DID NOT MEET THE INTER NAL GUIDELINES FOR HABITUAL OFFENDER STATUS, S O HE COULD NOT B E HABITUALIZED. SO, AGAIN, THE QU ESTION --
HOW MUCH BELOW THE GUIDELINES WAS HIS SENTENCE?
NOT MUCH. I BELIEVE HE RECEIVED 36 MONTHS IN THE ORIG INAL OFFER FROM THE STATE ATTORNEY , WAS 42 MONTHS, AN D MR. COO PER, THERE IS A CONTIN UING NEGOTIATION WITH THE PUBLIC DEFENDER, AND ULTIMATELY THE STATE ATTORNEYS OFF ICE , NOTING THAT HE DID COOPERATEIN THE La MARCA CASE, BUT, AGAIN, WITHOUT ANY DEALS , AND UNLESS YOU HAVE S OME DEAL, YOU CAN'T JUST INF ERTHAT THERE WAS A BENEFIT PROMISED TO MR . HUGHES AT THE TIME H E TES TIFIED.
WHAT IS OF CONCERN AND I HAVEN'T LO OKED AT THESE RUNNING NOTE S. I AS SUME THAT THEY A RE APART OF OUR RECORD?
THERE ARE SOME RUN NING NOTES, YES.
SO DO THESE NOTES DEMONSTRATE COMMUNICATIONS BETWEEN THE STATE ATTORNEYS OFFICE THAT WAS PROSEC UTING THIS DEFENDANT AND THE STATE ATTORNEYS OFFICE THAT WAS PROSECUTING MR . HUGHES, AND HOW OFTEN WAS THAT COMMUNICA TION?
I THINK THERE WAS ONE NOTE IN THERE , AND IT IS THE ONE I REFERENCED EAR LIER, NOTING THAT HE COOPERATED, BUT THERE WERE NO BENEFITS , NO DEALS. THAT IS IT.
WHAT ABOUT BE FORE THE ACTUAL TESTIMONY, BECAU SE IF I UNDERSTAND MR . CANNON'S ARGUMENT, IT IS THAT THERE WERE COMMUNICATION BETWEEN THESE TWO STATE ATTORNEYS, PRIOR TO THE ACTUAL TESTIMONY .
I DON'T BELIEVE THAT TO BE NECESSARILY TR UE IN T HERECORD, AND , AGAIN , I WOULD HAVE TO T AKE A LO OK AT THE RUNNING NOTES , BUT WE DON 'T HAVE TO SPECULATE. WE HAVE THE ASS ISTANT STATE ATTORNEY WHO TRANSPOR TED MR . HUGHES -- WHO PROSECUTED MR . HUGHES, AND HE TESTIFIED, LOOK, IF ANYONE HAD REQUESTED ANY KIND OF CONSIDERATION , I WOULD H AVE REQUIRED IT.
HE DID SAY THAT THERE WAS NO COMMUNICATION, DIDN'T HE?
YOUR HONOR , IF THERE IS COMMUNICATION DOES THAT MEAN THERE IS A BRADY VIOLATION? ABSOLUTELY NOT! IF THERE WAS, SIMPLY HE IS IN TRIAL.
I MEAN , REALISTICALLY , WHAT REASON WOULD THE STATE ATTORNEY IN THE S I XTH JUDICIAL CIRCUIT HAVE TO COMMUNICATE WITH THE S TATE ATTORNEY IN THE 20 th JUDICIAL CIRCUIT, ABOUT THIS DEFENDANT, EXCEPT AS I T RELATES TO THEIR MU TUAL CASES?
YES. EXACTLY THAT. THEY CAN CALL , I THINK THERE WAS ONE CALL WHE RE HE SAID, AS A RESULT OF THAT CALL , YEAH, HE DID COOP ERATE BUT THERE WERE NO DEALS. THAT IS IT! AND I THINK THAT NOTE CAME AFTER.
THE TRIAL COURT, IN HIS ORDER, SAYS THAT BU RNS WAS UNEQUIVOCAL IN HIS TESTIMONYTHAT HE NEVER CONT ACTED ANYONE IN THE SIXTH CIRCUIT ABOUT AN AGREEMENT AND T HAT NO PROMISES WERE EVER MADE TO HUGHES . JUDGE CRANE TESTIFIED TO THE SAME EFFECT.
THAT IS ABSOLUTELY TRUE .
IS THAT, THE RECORD SUPPORT S THAT?
THAT IS ABSOLUTELY TRUE. NOW, WHAT MR . CANNON IS TALKING ABOUT IS A RUN NOTE FROM AN INDIVIDUAL WHO WASN'T CALLED TO TESTIFY , DURING TRIAL, THAT SIMPLY REFLECTED THAT SOMEONE HAD TALKED TO MR . CRANE AND NOTED THAT HE WAS COOPERATING AND THAT THERE WERE NO DEALS AND NO BENEFITS MADE.
ABOUT AN OTHER WITNES S?
NO. ABOUT MR. HUGHES.THERE WAS A RUN NOTE .
ABOUT HUGHES.
AND ULTIMATELY , AGAIN , YOU HAVE TO RECOGNIZE T HAT MR. HUGHES WAS CROSS-EXAMINED ON HIS PENDING CHARGES. THERE WAS NO DEAL OUT THERE TO BE DISCLOSED, NO BENEFIT, AND I THINK YOU DON'T GET BEYOND BRADY, BECAUS E THERE IS ABSOLUTELY NOT A BENEFIT CONFERRED IN THIS CASE , AND YOU HAVE IF ANYTHING THAT WAS ESTABLISHED BELOW DURING THE EVIDENTIARY HEARING, IT IS JUST THAT FACT. SHAWN CRANE TESTIFIED ABSOLUTELY NO DEAL.
WOULD YOU COMM EN T ON THE PART OF THE SINI STER DEAL THAT YOUR OPPO NENT AL L UDZ TO , IS THE -- ALLUDES T O , IS THE -- THAT YOUR OPPO NENT ALLUDES TO, IS THE AVAILABILITY OF THE RECORDS. WHAT WOULD THE RECORD TELL US ABOUT, I S THERE SOMETHING , HOW DID THE RUN NOTES SURFACE AND WAS THERE A TIME WHEN THEY WEREN'T AVAILAB LE AND THEN THEY WERE AVAILABLE OR WHAT , TELL , IN OTHER WORDS GIVE ME AN OVERVIEW OF THAT.
YES, YOUR HONOR. INITIALLY, I BELIEVE THAT THERE WERE SOME, THERE WAS A QUESTION REGARDING WHETHEROR NOT THOSE WERE EVEN DISCOVERABLE OR NEED ED TO BE TURNED OVER, BUT EVEN TUALLY THEY WERE TURNED OVER, PR IO R TO THE HEARING. I DON'T BELIEVE MR. CANNON WAS PREJUDICED IN HIS PRESENTATION OF ANY CLAIM. FURTHERMORE , HE , THE DEFENSEDID NOT CALL MR. HUGHES TO TESTIFY D URING THE EVIDENTIARY HEARING. I MEAN, WE ARE SPECULATING THAT, EVEN IF THERE WAS SOME KIND OF A DEAL AND IF ANYTHING, THE RECORD REF UTES THAT, WHAT IMP ACT WOULD THAT HAVE HAD ON MR. HUGHES'S CREDIBILITY?HE WAS AL READY CROSS-EXAMINED ON HIS PENDING CHARGES AND THAT HE HOPED TO GET A BENEFIT. THERE IS NOTHING EL SE TO BE GAINED BY -- ISN'T THERE A DIFFERENCE , REALLY, BETWEEN A DEFENDANT WHO HO PES THAT HISCOOPERATION WILL BENEFIT HIM , AND A DEFENDANT WHO KNO WS IF I AM UP HERE AND I SAY THE RIGHT THINGS, THAT I AM GOING TO GET A BENEFIT.
EXACTLY, AND THE CASE LA W IS PRETTY CL EAR ON THAT A S WELL, IF A DEFENDANT MERELY HOPES OR SPECULATES THAT HE MIGHT RECEIVE A BENEFIT , THAT IS NOT BRADY, BEC AUSETHERE IS REALLY NOTHING TO DISCLOSE AND THAT DID COME OUT .
CHIEF JUSTICE: WAS HE REPRESENTING HUGHES AT THE T IME OF THE TRIAL? THE PUBLIC DEFENDER.
YES, YOUR HONOR.
SO , THEN , HIS TESTIMONYWOULD BE PRETTY IMPORT ANT. TELL US, AGAIN , WHAT DOES HE SAY ABOUT ANY NEGOTIATIONS BEFORE THE TRIAL , WITH THE STATE ATTORNEY IN CHARLOTTE ?
YOUR H ONOR , MR. COOPER WAS NOT CALLED TO TESTIFY DURING THE EVIDENTIARY HEARING. WE SIMPLY HAVE THE TESTIMONY OF THE PROS ECUTOR S , WHO, AGAIN, STATED UNAMBIGUOUSLY , THERE WAS NO DEAL, NO BENEFIT, NOTHING PROM ISED , AND WE HAVE THE ASA WHO HANDLED THE CASE AND TOOK THE PLEA AND HE SAID NO DEAL .
CHIEF JUSTICE: SO WE ARE NOW BACK TO SOME SPEC ULATION ABOUT HOW IT WOULD HAVE IMPACTED HUGHES, EVEN ASSUMING THERE WAS SOME DISCUSSION THAT HAD TA KEN PLACE , THEY HAVEN'T LINKED IT UP BA CK TO HO W IT WOULD HAVE IMPACTED HUGHES .
YES, YOUR HONOR. THERE IS NO L IN K BECAUSE N O PROMISE WAS MADE. WE ARE SPECULATING T HAT THERE MIGHT HAVE BEEN AN AGREEMENT. WE CAN'T FIND REVER SIBLE ERROR BASED ON SPECUL ATION. THE CASE LAW IS QUITE CLEAR.
CHIEF JUSTICE: L ET'S GO BACK, IF YOU HAVE GOT 3 6 MONTHS, WHEN DID THE PROSECUTOR SAY HE WAS WILLING TO HAVE PLED HIM TO 42 MONT HS? WAS THAT HIS IN ITIAL PLEA OFFER BE FORE --
I THINK THAT WAS THE INITIAL OFFER , 42 MONTHS.
CHIEF JUSTICE: EVEN BEFORE HE TESTIFIED?
I DON'T KNOW.
CHIEF JUSTICE: THAT WOULDBE PRETTY SIGNIFICANT, BECAUSE THAT IS OBVIOUSLYNOT A GREAT DEAL, IF THAT IS --
I BELIEVE THAT OCCURRED AFTER HIS TRIAL, THE INITIAL PLEA OFFER OF 42 MON THS, A NDTHEN MR. COOPER CAME BACK WITH, KNOWING THE ASA TESTIFIED AND KNOW ING MR. COOPER, HE PROBABLY SAID 24 MONTHS AND 36 WAS ARRIVED AT IN BETWEEN.
CHIEF JUSTICE: IT WOULD BE MORE IMPORTANT , THOUGH , TO KNOW THAT HE WAS FACING , WHAT WAS, WHAT DID THE JURY KNOW AT THE TIME OF THE TRIAL, ABOUT WHAT HE WAS POTENTIALLY FACE SOMETHING.
THE JURY KN EW HE WAS FACING SERIOUS JAIL TIME , AND HAD PENDING CHARGES. AND THAT WAS F ULLY DEVE LOPED DURING THE TRIAL, AND DURING THE DEPOSITION , H UGHES , A LSO , STATED I HOPE T O GET A BENEFIT BY TESTIFYING , SO , AGAIN , THERE IS NOTHING SINISTER HERE, IN THAT A DEFENDANT TESTIFIES OR A WITNESS TESTIFIES THAT HE M IGHT SPECULATE THAT HE COULD RECEIVE A BENEFIT.
CHIEF JUSTICE: AND RIGH T NOW, WE DON'T HAVE ANY INDICATION THAT MR. HUGHES HAS CHANGED HIS, I MEAN , THIS ISN'T A SITUATION OF A RECANTATION OF TESTIMONY.
NO, ABSOLUTELY NOT .
CHIEF JUSTICE: BUT THE ONLY WAY THAT HUGHES KNEW ANYTHING ABOUT THE CASE IS BECAUSE THEY WERE SUPPOSEDLY IN THE SAME CELL T O GETHER , RIGHT?
THEY WERE IN THE SAME PRISON.
CHIEF JUSTICE: THAT'SRIGHT. BEFORE HE WAS RELE ASED. AND THAT I S WHEN H E ALLEGEDLY TOLD THE M HE WAS PLANNING TO KILL HIS SON-IN-LAW.
YES, YOUR HONOR. AND EVEN IF W E SPECULATE THAT THIS WOULD HAVE SOMEHOW UNDERMINED, THIS NONAGREEMENT SPEC LATION -- SPECULATION , WOULD HAVE INCLUDED THIS TESTIMONY , THE STATE PRESENTED OVERWHELMING EVIDENCE OF PREMEDICATION -- PREMEDITATION, SIMPLY BECAUSE OF THE EVIDENCE. WE HAVE TWO GUNSHOTS FI RE D TO THE HEAD F ROM TWO DIFFERENT ANGLE S. WHAT FU RTHER EVIDENCE DO YOU NEED AND HIS ARGU MENT SUPPORTING WOULD HAVE ONLY GONE BACK TO THAT IS SUE.
WHAT SUPPOR TING EVIDENCE DO WE SEE IN THE RECORD THERE? WAS IT , JUDGE HEARING THE GUIDELINES AND HE IS KIC HT, OR WAS IT U P TO THE JUD GE, OR WAS -- AND HE IS , OR WAS IT UP TO THE JUDGE , WAS THERE A PLEA IN THE RECORD?
WE HAVE ASA BU RNS F R OM CHARLOTTE COUNTY TESTIFIED TO IT, NOTING THAT HE D IDCOOPERATE IN THE LaMA RCA CASE, AND THIS IS A FTER THE LaMARCA 'S TRIAL.
THERE WAS NO PLEA TO A DOWNWARD DEPARTURE THAT WAS INTRODUCED INTO EVIDENCE BEFORE THIS TRIAL COURT?
I DON'T BELIEVE ANY PLEA WAS ENTERED, BUT WE HAVE A DOWNWARD DEPART URE FRO M THE ASA, NOTING HIS COOPERATIONIN THE L a MARCA CASE, SO W E DO HAVE THAT. WE DON'T HAVE THE TRANSCRIPT OF THAT HEARING, IF YOU WILL , WHEN THE PLEA WAS ACCE PTED , AND NOT INTRODUCED INTO EVIDENCE. I WOULD JUST LIKE T O INTRODUCE , I KNOW COUN SEL TALKED ABOUT LI MITED ISS UES , AND IN HIS REBUTTAL , HE HAS ISSUES THAT HE IS NOT GO IN G TO ADDRESS BECAUSE HE DID HAVE 20 ISSUES IN HIS LEAVE. I WOULD LIKE TO -- IN H ISBRIEF. I WOULD LIKE TO NOTE THAT TANYA LaMARCA S HOWED NO EVIDENCE OF FA LSE TESTIMONY , AND THERE WAS NO EVIDENCE THAT WAS PRES ENTED BELOW , NO CREDIBLE EVIDENCE.
CHIEF JUSTICE: WOULD YOU JUST, THIS IS MORE AFTER PROCEDURAL ISSUE, WERE YOU THE ATTORNEY HA NDLING T HECASE THROUGHOUT THE POSTCONVICT ION?
YES, YOUR HONOR.
CHIEF JUSTICE: WAS THIS EVIDENTIARY HEARING DONE UNDER OUR NEW RULE , THE 3.851 RULE?
YES, YOUR HONOR.
CHIEF JUSTICE: BECAUSE IT DOES APPEAR, THIS IS ONE OF THE FIRST TIMES WE HAVE SEEN THAT HIS CON VICTION W ASFINAL IN 200 1, AND IT LOOKS LIKE THE , EVERYTHING PROCEEDED ACC ORDING T O SCHEDULE, AND I COMMEND B OT H OF YOU FOR THAT, AND IT LOOKS LIKE A FULL EVIDENTIARY HEARING WAS GIVEN , WITH A FULL COMPREHENSIVE ORDER, SO --
THANK YOU, YOUR HONOR. I ALSO NOTE THAT JUDGE DOWNEY , GIVEN HIS HEAVY TRIAL SCHEDULE , HAD THE EVIDENTIARY HEARING GO IN TO THE WEEKEND, SATURDAY AND SUNDAY.
CHIEF JUSTICE: WE PRER BLT, WE LIKE TO SEE -- W E APPRECIATE, WE LIKE TO SEE THAT MAYBE THIN GS WE ARE DOING WILL EXPED ITE THE PROCESS IN A WAY THAT STILL GUARANTEES THAT THE DEFENDANT GETS A F ULL HEARING, SO THANK YOU , MR . BROWNE.
THANK YOU.
I WOULD LIKE TO JUSTBEGIN, AGAIN, REAL QUIC K. THE OFFER WAS NOT B Y THE PUBLIC DEFENDER. THE NOTES CLEARLY STATE , ON THE 30th , TWO THINGS, THAT HE WAS GOING TO BE HFO AP SD -- HF OED AND, TWO , 36 MONTHS , DUE TO THE COOPERATION IN THE PINELLAS COUN TY CASE. REASON FOR DOWN WARD DEPARTURE.THAT IS CLEAR IN THE RECORD AND CLEAR IN THE EVIDENCE. ANOTHER EXAMPLE WOULD BE JEREMY SMITH WHO PLED BEFOREHAND, J ERRY ANY S M ITH , WHO TESTIFIED - - J ERRY SMITH, WHO TESTIFIED THAT HE HAD NO SPECIFIC BENEFIT, WITH BO TH THE LEAD DETECTIVE AND THE STATE ATTORNEY IN THIS CASE --
YOUR HONOR, I AM SO RRY BECAUSE I AM GOING TO HAVE TO OBJE CT. HE DID NOT RAISE JERRY ANY SMITH IN HIS ARG UMENT I HAVE NO OPPORTUNITY TO REBUT HIS ARGUMENT.
CHIEF JUSTICE: I THOUGHTHE DID M ENTION MR . SMITH BUT DIDN'T SPEND TIME. IF YOU ARE GOING TO CON TINUE WITH MR. SMITH , OTHERW ISE I DO NEED TO GI VE MR . BR OWNE --
I DID MENTION IN THE BEGINNING, ATTEM PTED T O MENTION ALL THREE. AGAIN, THESE ARE - -
CHIEF JUSTICE: I AM GOING TO GIVE MR . BR OWNE , YOU HAVEN'T USED ALL YOUR TIME.
THAT IS FINE, WITH REGARDS TO JE REMY SMITH, AGAIN , THESE ARE RECORDS RECEIVED DURING POSTCONVICTION. BILLING NOTES BY HIS PR IVATE ATTORNEY INDICA TING THAT HE WAS ASKED , THAT THE PRIVATE ATTORNEY ASKED, BOTH THE PROSECUTOR AND MR . LaMARCA 'S CASE, AND THE LEAD DETECTIVE , TO COM E TO MR . SMITH'S SENTENCING AND TESTIFY ABOUT HIS COOPERATION IN THE CASE. AND THAT , THEY DID , AND THAT WAS NE VER REVE ALED , EITHER TO THE DEFENSE OR T O THE JURY, AND THAT WAS ASKED SPECIFICALLY BY THE STATE , DID YOU RECEIVE ANY BENEFITS IN EXCHANGE FOR YOUR TESTIMONY?
AND THIS , ALL , OCC URRED BEFORE THE AC TUAL LaMARCATRI AL?
CORR ECT. THIS OCCURRED WELL BE FORE THE TESTIMONY BY THE STATE ATTORNEY, AND THE LEAD DETECTIVE OCCURR ED IN MARCH. HE WAS SENTENCED IN APRIL. AGAIN, THIS IS A BENEFIT , AN INTERVENTION. THERE HIS CASE LA W THAT WE KNOW IS VERY CLEAR THAT , AGAIN , THIS DOE SN'T , THIS IS NOT RESU LT -ORIENTED . IT IS WHAT THE STATE DID AND WHAT WAS THE IMPRESSION THATWAS CONVEYED THIS. IS POWERFUL EVIDENCE TO A JURY THAT THE STATE ATTORNEY WHO IS SITTING RIGHT THERE PROSECUTING THE DEFENDANT, WENT AND SP OKE ON THE BEHALF OF A DEFENDANT WHO I S IN PRISON, TO TRY AND HE LP HIM THE BEST HE CAN, AND THAT I S VERY CLEAR. THAT WAS NEVER , EVER PRESENTED TO THE JURY , A NDTHAT WAS WITHHELD. IT WAS ONLY DUE T O THE POSTCONVICTION PROCESS THAT WE DISCOVERED THOSE RECORDS , THAT THAT ACTUALLY HAPPENED , AND , AGAIN , THE TESTIMONY OF SHAWN CRANE, HE AD MITS , YES , T HAT IS WHAT HE DID. I DID -- THAT IS WHAT I DID . I DID GO AHEAD AND TELL THE COURT THAT HE DID COOPERATE AND MADE A STATEMENT WITH REGARDS TO MR. LaMARC A'S CASE, AND , AGAIN , THE TRIAL COURT IN ITS ORDER , FOUND --
HE ACTUALLY GOT THE BENEFIT OF WHAT EVER IT IS THE STATE HAD PROMISED HIM , EVEN BEFORE HE TESTIFIED ON THE STATE'S BEHALF.
CORRECT. CORRECT.HE RECEIVED THE BENEFIT. BEFOREHAND. ABSOLUTELY. AND --
HE RECEIVED THE GUIDELINES DISPOS ITION ?
HE , THEY SA ID THAT H E RECEIVED THE DEAD LINES , BUT THERE WAS OTHER CHARGE THAT IS COULD HAVE BEEN BRO UGHT UP THAT WERE NEVER BROUGHT UP. HE WAS AN ABS COND ER , HE WAS ON VIOLATION OF PROB ATION. HE RECEIVED 29 MONT HS I N PRISON. HOWEVER, IT IS NOT THE END RESULT THAT IS IMPORTANT. IT IS WHAT WAS THE CONSIDERATION IN THE INTERVENTION, AND THAT WASNEVER REVEALED TO THE STATE. AGAIN , BECAUS E THERE WAS ONLY THREE WITNESSES IN THIS COURT'S DIRECT OPINION , THAT ARE CRITICAL. HUGHES, SMITH , AND TANYA FLYNN, AND THIS COURT ESTABLISHES THAT THOSE THREE WITNESSES WERE CRUCIAL IN UPHOLDING THE ERROR THAT W ASCOMMITTED BY THE LOWER COURT .
AND WHAT WAS THE TESTIMONY BY SMITH OR SMITH'S ATTORNEY AS TO THIS ISSUE?
WITH RE GARD S TO?
A DEAL.
A DEAL. AGAIN , THERE WAS , TESTIFIEDTHERE IS NO DEAL. HOWEVER, HE DID C OME IN AND TESTIFY FOR HIM .
SMITH'S ATTORNEY TESTIFIED THERE WAS NO DEAL?
YES . HE IS NO W A JUDGE , HE DID COME IN AND TESTIFY --
AND JUDGE CRANE , THE PROSECUTOR AT THE TIME, ALSO SAID THAT THERE WAS NO DEAL?
SAID THAT THERE WAS NO SPECIFIC DEAL. HOWEVER, DID STATE THAT THERE WAS AN AGREEMENT. THERE WAS THIS PROMISE OF INTERVENTION ON BEHALF OF THE STATE. THEY CAME IN. THEY WEREN'T STAND POINT . -- THEY WEREN'T SUBPOENAED. THEY CA ME IN ON THEIR O WN TO THE COURT AND TESTIFIED FAVORABLY FOR MR .