CALL THE NEXT CASE . HITCHCOCK VERSUS THE STATE OF FLORIDA.
GOOD MORNING .
CHIEF JUSTICE: PARTIES READY? MAKE SURE THAT JUSTICE WELLS IS SITUATED . HAVE HIM BACK HERE ON T HEBENCH.
MAY IT PLEASE THE COURT. MY NAME IS JIM DRIS COLL , AND I AM HERE ON BEHA LF J AMES HITCHCOCK.MR. HITCHCOCK HAS R AISED A NUMBER OF CLAIMS, BUT IT ALL COMES DOWN TO, REALLY , JUST ONE. HE HAS BEEN CONV ICTED OF A CRIME THAT HE DIDN'T COMMIT , AND WE SEEK TO REL IEVE HIM FROM THAT. THROUGHOUT THE YEARS , MR . HITCHCOCK HAS RECE IVED PARTIAL REMEDIES, AND NOW WHAT WE ARE ASKING THIS COURT FOR , A S A COMP LETE REMEDY, THE ONE HE HAS BEEN DENIED FOR SO MANY Y EARS , HE RAISES ISSUES
I KNOW YOU HAVE RA ISED A LOT OF ISSU ES. LET ME JUST F O CUS YOU ON ONE THRESHOLD QUESTION THAT I HAVE, REGARDING A WAIVER OF SOME OF THE CLAIMS FOR THE GUILT P HASE ISSUES. IT SEEMS LIKE , BETWEEN LATE 1994 AND 1987 , '84 AND '87 , JANUARY, WHERE WE SAID THAT HE WILL HAVE TWO YEA RS TO BRING A CLAIM AFTER THAT CONVICTION AND SENSE. DURING THAT TWO-YEAR PERIO D , YOUR CONVICTION WAS F INAL AND YOU DIDN'T B RING A CLAIM.NOW, I KNOW THAT THERE WERE PROCEEDINGS PENDING INFEDERAL COURT, BUT I HAVEN'T READ A CASE THAT SAYS THAT , BECAUSE PROCEED INGS A REPENDING IN FEDERAL CO URT , YOU ARE NOT REQUI RED O R EVEN PROHIBITED FROM FI LING A HABEAS OR A 3.850 , I N S TA TECOURT, SO WHY DI DN'T YOU WAIVE THOSE CLAIMS , W HEN Y OUFAILED TO FILE WI THIN THAT TWO-YEAR PERIOD?
YOUR HONOR, IT IS OUR POSITION THAT THE JURISDICTION WAS ENTIRELY OVER THE WH OLE CASE IN THE UNITED STATES S UPREME COURT , AND MR. HIT CHCOCK , UN LIKE THE P E OPLE WHOSE , MAYBE THEY WERE UNDER A WARRANT , MR . HITCHCOCK 'S C ERT HAS BEEN GRANTED BY THE UN ITED STATES SUPREME COURT ON AN E RROR IN THIS STATE'S DEATH PENALT Y SYSTEM THAT WASN'T CORRECTED.
WHY COULDN'T YOU HAVE FILED EITHER A 3 .850 MO TI ONAND MO VED TO STAY THEPROCEEDINGS, PENDING T HESUPREME COURT 'S CERT OR FILED A MOTION FOR EXTE NSION OF TIME , DUE TO THOSE PROCEEDINGS PENDING IN THE U.S. SUPREME COURT. YOU DIDN'T DO EITHER OF THOSE THI NGS.
YOUR HONOR, I BELIEVE WHILE THEY WERE UP AT THE U.S. SUPREME COURT AND THEY CERTAINLY , A SUCCESSOR 3. 850 WOULD HAVE BEEN FILED , HAD THEY NOT BEEN SUCCESSFUL, BUT BY THAT TIME, MR . HITCHCOCK LEFT POSTCONVICTION AND WAS B ACK IN A RESENTEN CING MODE, AND AT THAT TIME , THERE WERE, H E WENT BACK AND HE RECE IVED PENALTY PH ASE A FTER PENALTYPHASE.
I UNDERSTAND , BUT I DON'T THINK WHAT YOU ARE SAYING ANS WERS THE QUESTION OF WHY YOU SHOULDN'T BE REQUIRED T O AT LE AST FILE E ITHER A MOTION UNDER 3.850 AND MOVE TO STAY THE CASE , OR FILE A MOTION FOR EXTENSION OF TIME FOR FILING A 3.850 , AND CAN YOU CITE ANY CASE THAT SAYS , THAT ON CE THERE ARE FEDE RAL HABEAS PROC EEDINGS , Y OU ARE NOT PERMITTED TO FILE R ULE 3.850 MOTION IN STATE COURT?
NO , YOUR HONOR, I CAN NOT. BUT THIS INVOL VES , T HIS INVOLVES, I REALLY , O NECLAIM OR SO , WHERE TH ERE WERE OTHER CLAIMS THAT INV OLVED NEWLY-DISCOVERED EVIDENCE AND WE WERE IN FACT NOT PROCEDURALLY BA RRED ON THOSE, BECAUSE WHEN WE ARE CLAIMING NEWLY-DISCOVERED EVIDENCE, THAT OCC URRED LONG AFTER ' 77 OR DURING THAT WINDOW.
LET'S TALK ABOUT THE NEWLY-DISCOVERED EVIDENCE CLAIM. THAT, AS I UNDERSTAND , T HEGIST OF THAT , IS THAT , W A NDA GREEN WENT OUT ON THE COURTHOUSE STE PS , AFTER THE 1996 RESEN TENCING , AFTER SHE GAVE HER TESTIMONY IN THAT , AND MADE A STATEMENT THAT ACTUALLY RICHARD HITC HCOCK HAD TOLD HER THAT HE MURDERED CYNT HIA , CORRECT?
THAT'S CORRECT.
THEN THERE WAS A HEAR ING. RIGHT?
YES, YOUR HONOR. THERE WERE TWO.
THAT WAS DENIED.
YES, YOUR HONOR THERE WAS AN ATTEMPT AS PART OF THE RESENT ENCING , TO DO. THAT IS THAT CORRECT?
THERE ARE TH REE ISSUES THAT HAD TO DO WITH RESENTENCING THAT WAN DA GREEN HAD COME FORWARD WITH THAT MR . HITCHCOCK HAD CONFESSED . THERE WERE TWO OTHER ISSUES IN THAT HEA RING , TO THE EXTENT IT WAS WRAPPED IN THE TWO ISSUES , BUT THAT TESTIMONY OF WANDA G REEN , WE BELIEVE THAT WAS VOI D, ANDSINCE THE TIME OF THAT VOID HEARING, WE HAVE NEWLY-DISCOVERED
YOU SAY IT WAS A VOIDHEARING.IT WAS A HEARING IN WHICH THE COURT ENTERED AN O RDERON THIS ISSUE , OF NEWLY DISCOVERED EVIDENCE, IN RESPECT TO RICHARD. WHAT I AM HAVING A HARD TIME UNDERSTANDING, IS WHAT HAPPENED AS FAR AS THAT ORDER WAS CONCERNE D AND ANY APPEAL OF IT?
OUR POSI TION ON WHAT THIS COURT RULES IN MR . HITCHCOCK'S RESENTENCING APPEAL, WAS THIS ISN'T THE RIGHT FORUM TO A PPEAL THIS OR TO RAIS E THIS ISSUE. THAT IS WHAT POSTCONVICTION IS FOR AND THAT IS WHAT WE DID. WE DID IT BY , WE WERE ALLOWED TO CALL CORROBORATIVE WITNESSES, UNLIKE THE VOID HEARING THAT OCCURRED IN 1997 AND 199 8. WE WERE ALLOWED TO CALL ADDITIONAL WITNESSES THAT WE DISCOVERED , AFT ER THE TIME THAT MR. HITCHCOCK 'S PR ESENT 3.851 MOTION WAS FILED. THIS WAS A B RAND NEW NEWLY DISCOVERED WITNESS THAT THE LOWER COURT FAILED T O ADDRESS AT ALL. THIS WITNESS CAME TO COURT , SWORE THE OATH AND TOLD THE TRUTH ABOUT WHAT RIC HARD HITCHCOCK SAID, SO EVEN IF WANDA HITCHCOCK GREEN WAS PROCEDURALLY BARRED , W HICH WE SU BMIT IT IS NOT THE ISSUE OF WHETHER RICH ARD HITCHCOCK COM MITTED THIS OFFENSE THAT SOMEHOW MR . HITCHCOCK IS BARRED FROM EVER RAISING CLAIMS ABOUT HIS A CTUAL INNOCENCE , IT WAS WE WENT ON AND A DDED ADDITIONAL TESTIMONY , NEWLY DISCOVERED, WHEN MR . HITCHCOCK ENTERED POSTCONVICTION.
DOES THE NEWLY DI SCOVERED EVIDENCE CLAIM OF THIS EVIDENCE OF THESE WOMEN THAT CAME FORWARD AFTER 1996 , DOES IT , DOES I T REST O N WHETHER THEIR TES TIMONY WAS SUFFICIENT TO , FOR A NEWLY DISCOVERED EVIDENCE CLAIM?
WELL , YOUR HONOR , WE BELIEVE , WHILE E ACH WITNESS INDEPENDENTLY WOULD JUSTIFY A NEW TRIAL, WHEN THEY ARE LOOKED AT TOGETHER, WHEN WE HAVE MULTIPLE WITNESSES THAT ARE SAYING RICHARD HITCHCOCK CONFESSED TO THEM, AND THAT SUPPORTS THE TEST IMONY OF JAMES HITCHCOCK , WHERE HE TESTIFIED IN HIS TR IAL , HE HAS BEEN FI GHTING AGAINST THAT EVER SINCE, SO THESE WITNESSES CERT AINLY D O SUPPORT THE AC TUAL INN OCENCE OF JAMES M ITCH KOK AND CERTAINLY WO ULD JUSTIFY A NEW TRIAL.
HOW IS THAT EVIDENCE ADMISSIBLE, THE EVIDENCE OF WHAT THIS NOW -DECE ASED PERSON SAID? HOW DO YOU GET THAT ADMITED?
YOUR HONOR, IT WOULD B E,HE WOULD BE UNAVAILA BLE , AND IT IS A DECLARATION AG AINST INTEREST, AND WE BELIEVE MOREOVER, THAT DUE PROCESS , MR. HITCHCOCK HAS A RIGHT T O PRESENT THIS EVIDENCE , REGARDLESS OF ANY EVIDENTIARY RULE . THIS IS EVIDENCE OF SOMEBO DY ACTUALLY CONFE SSING TO THE OFFENSE HE HAS BEEN CONVICTED OF AND SENTENCED TO DEATH . HE HAS A 1 00 PERCENT ABSOLUTE RIGHT TO PUT THAT ON AND IT IS SUPPORTED UNDER OUR EVIDENCE CODE , BUT THIS IS THREE WITNESSES , NO W , WHICH HAVE RICHARD INCRIMINATING HIMSEL F IN THIS MU RDER. FOR WHI CH
DID ANY OF THOSE WITNESSES SAY THIS , PR IOR TO RICHARD'S DEATH?
RICHARD , NONE OF THESE WITNESSES WOULD REALLY SAYTHIS, A S IT CAME OUT IN T HEHEARING, BE FORE RICHARD'SDEATH, BECAUSE OF T HIS MA N'S REIGN OF TERROR AND HO W HE TERRIFIED THIS FAMILY. THEY WOULD NOT COME FORWARD. MS. GREEN WOULD NOT COME FORWARD , BECAUSE SHE, UN TIL RICHARD CONFESSED THAT HE HAD IN FACT COMMITTED THIS OFFENSE , BELIEVED THAT THE STATE CHAR GED JAMES HITCHCOCK, HE M UST HAVE DONE, IT BUT WHEN RICHARD CONFESSED, THAT CHANGED , AND MR. HITCHCOCK WAS ENTI TLED , EVEN IF IT WAS JUST THAT, TO PUT THAT ON IN A VALID POSTCONVICTION HEARING, WHERE HE COULD CALL WITNESSES THAT COULD CORROBORATE THAT, THAT A TRUE WE IGH ING AND CREDIBILITY FINDING COULD BE MADE BY THE COURT, AND THAT IS PRECISELY WHAT WE WERE ABLE TO DO, ONCE HE ENTERED A POSTCONVICTION POST URE A NDONCE WE WERE ABLE TO REINVESTIGATE THIS CASE.
THIS TRIAL JUDGE DID HEAR THIS TESTIMONY.
YES, YOUR HONOR, HE DID.
POSTCONVICTION. AND ENTERED AN ORDER DENYING IT. ONE, HE FOUND THAT WANDA GREEN WAS NOT C REDIBLE.
I DON'T KNOW THAT THERE WAS EVER A CREDIBILITY FINDING BY THIS PARTIC ULAR JUDGE , WHO HEARD OUR POSTCONVICTION MOTION.
THERE WAS A FINDIN G THAT WANDA GREEN WAS NOT CRE DIBLE .
D URING THE VOID HEARING , THAT HAPPENED IN , L IK E , THE '97, '9 8, BUT, AGAIN, THAT IS ONLY WANDA GREEN. WANDA GREEN WAS THE ONLY WITNESS ON THIS THAT THEY COULD CALL. THEY WERE LI MITING CALLING CORROBORATIVE WITNESSES, AND WE, N OT ONLY DID WE HAVE THESE WITNESSES , WE HAVE WITNESSES THAT CAME IN AND DISCUSSED RELEVANT ADMISSIBLE EVIDENCE THAT COULD HAVE BEEN USED TO DEFEND JAMES HITCHCOCK.
LET ME SWITCH YOU TO T HEPENALTY PHASE ISSUE HE RE. THE PENALTY PHASE ISSUE HAVING TO DO WITH THE FAILURE TO ASK DR . TUMER ABOUT THE STATUT ORY MITIGATION?
YES, YOUR HONOR.
WHY WAS THE TRIAL LAWYER , MISS CASHMAN , NOT ASKED A QUESTION ABOUT THAT AT THE HEARING, BY DEFENSE?
YOUR HONOR, WE HAD CALLED THEM. WE HAD CALLED THE TRIAL , PENALTY PHASE COUNSEL , K ELLY SIMS. WE BELIEVE
WHY DIDN'T YOU ASK CASHMAN? SHE WAS THE LEAD COUNSEL , WAS SHE NOT?
SHE WAS NOT THE, SHE ARGUED IN THE C L OSING, I BELIEVE IT WAS MR . SIMS WHO ACTUALLY QUESTIONED DR. TUMER.
WELL, DIDN'T MR. SIMS SAY THAT THE DECIS IONS IN, IN HIS TESTIM ONY , THAT THAT CASHMAN WAS LEAD COUNSEL AND THE ONE THAT WAS DIRE CTING THIS CASE ? ISN'T THAT RIGHT?
YES . WELL, I MEAN, HE HAD A ROLE , I MEAN, HE STEPPED FORWARD.
IS CASHMAN AVAILABLE?
CASHMAN DID TESTIFY IN THIS. SHE WAS CALLED BY THE STATE.
BUT SHE WAS NOT A SKEDABOUT THIS ISSUE.
SHE WAS, WE CALLED WITNESSES. WE BELIEVED THAT WOULD SUPPORT OUR POS ITION , AND
LET ME GO BAC K ON THIS, BECAUSE I HAVE SOME R EAL PROBLEMS WITH WE HAVE CASES WHERE SOMEONE DOESN'T F UTURE ON A PSYCHOLOGIST AND THEN YOU LOOK AFTERWARDS , AND YOU SAY , GEE , WHY WOULDN'T THEY PUT THAT PSYCHOLOGIST ON , AND , OR THEY DON'T P UTANYBODY, OR THEY , YOU KN OW, PUT OTHER WITNESSES ON , BUT HERE YOU HAVE THE SAME EX ACT PERSON, DR . TUMER , WHO I S NOT AN UNSOPHISTICATED WITNESS , THAT IS PUT ON TO PUT ON MITIGATION , AND , SO YOU DON'T HAVE AN ISSUE OF THE DILIGENCE OF THE RESENTENCING COUNSEL. IT SEEMS TO ME, UNDER THOSE CIRCUMSTANCES , NOT TO ASK WHY, REALLY , THERE ARE JUST TOO MANY UNANSWERED QUESTIONS THAT WOULD HAVE TO BE, THAT HAD TO BE A STRATEGY REASON THAT IT OCCURRED. NOW, I DON'T , I THINK IN OTHER SITUATIONS YOU WOULD SAY MAYBE IT IS NOT A STRATEGY REASON , BUT THE VERY WITNESSES ON THE STAND , UNLESS SOMEONE HAD A B RAIN FREEZE, IF THAT WITNESS WAS AVAILABLE TO TESTIFY AS TO THE STATUTORY MITI GATION , WHY WOULDN'T HE HAVE OF FERED THAT TESTIMONY? SO I HAVE GOT SOME R EAL PROBLEMS WITH EVEN DR . TUMER SAYING HE WAS REA DY TO TESTIFY TO THIS BUT HE JUST WASN'T ASKED THE QUESTION.I MEAN , HE WAS ASKED HIS OPINION. WHAT IS YOUR ANSW ER TO THAT?
YOUR HONOR, WE BELIEVE W E CALLED THE WITNESSES THAT WERE FAVORABLE AND WE BELIEVED THAT WE PROVED OURISSUES, AND WE BELIEVE I T COMES DOWN TO AND IT IS OUTLINED IN DE TAIL IN THE BRIEF, THAT IN FA CT, THEY MOVED ON AN EXPEDI TED MANNER, AND THE DEPO SITION SHOWS. THAT I MEAN , THEY COULD HAVE JUST SIMPLY ASKED , DO YOU SUPPORT THESE TWO STATUTORY MITIGATORS, AND THE JUR Y WOULD HAVE GIVEN THEM A LOT MORE WEIGHT.
BUT, AGAIN , IN SOME CASES , THE WITNESS ISN'T EVEN CALLED TO THE STAND. HERE YOU HAVE IN YOUR EVIDENTIARY HEARING , YOU DID CALL MS. CASHMAN.
UM-H UM.
SO WHY DI DN'T YOU ASK F ORTHAT QUESTION?
I BELIEVE IT WAS ASKED OF MR. SIMS , AND I
HE SAID H E DIDN'T REMEMBER. I THOUGHT HE SAID HE DIDN'T REMEMBER.
IT WAS A ST RATEGY TO NOT PRESENT, TO JUST ME RGE , TO ARGUE IT AS JUST MITIGATION, RATHER THAN TO PUT IT INTO CONTEXT OF THE STATUTORY MITIGATE OR , AND WE T AKE ISSUE WITH THAT, AND WE BELIEVE IN A CASE WHERE MEMBERS OF THIS COURT IN THE PAST HAVE SAID DEATH WASN'T APPROPRIATE FOR MR. HITCHCOCK, WE BELIEVE IN A CASE LI KE THIS , THAT DID TURN THE BA LANCE AGAINST MR . HITCHCOCK AND HE PROBABLY WOULD HAVE RECEIVED LI FE .
BUT YOU ST IL L HAVEN'T REALLY ANSWERED THE QUESTION. I THINK IT HAS BEEN ASKED A COUPLE OF TIMES. THERE IS A PRESUMPTION THAT COUNSEL PERFOR MED APPROPRIATELY . OKAY. AND THERE IS SEVE RAL PRONGS TO THE TEST. BUT IT IS A REAL SIMPLE QUESTION. WHY DIDN'T YOU ASK LEAD COUNSEL RESPONSIBLE FOR THIS , IF SHE HAD TA KEN THE DEPOSITION OF DR. TUMER, SHE HAD THIS TESTIMONY THAT HE WOULD HAVE TESTIF IED TO TWO STATUTORY MENTAL HEALTH MITIGATORS, WHY DIDN'T YOU ASK HIM THE QUES TION?
WE MADE A STRATEGICDECISION TO NOT CALL MS. CASHMAN, AND WE DID IT FOR A NUMBER OF REASONS, ABOUT HOW WE WANTED TO PRESENT OUR CLAIMS , AND WE BELIEVED THAT THROUG H MR. SIMS AND THROUGH JUST LOOKING AT THE RECORD ANDTHE QUESTIONS THAT WERE ASKED BY MS. CASHMAN , WE , IN FACT, ESTABLISHED THAT RESENTENCING COUNSEL WAS INEFFECTIVE.
WHO CALLED MS. CASHMAN?
THAT WAS MR . PINKARD.
SO YOU DID CALL HER.
NO.I AM SORRY. THAT WAS THE STATE. THE STATE CALLED MS. CASHMAN.
SO THE STATE ALSO DIDN'T ASK HER THE QUESTI ON.
NOT THOSE QUESTIONS , A NDWE BELIEVE, WHE N YOU HAVE STATUTORY MITI GATION , YOU HAVE AN EXPERT WHO, IF YOU SAT DOWN AND SPO KE TO , L IKE YOU SHOULD IN A CASE LIKE THAT, WOULD TELL YOU THERE ARE TWO STATUTORY MITIGATORS IN THIS CASE , AND I AM READY TO TESTIFY TO THE M. YOU SHOULD PRESENT THAT.
THE THIN G THAT IS S O PUZZLING ABOUT THIS , IS I T CAME OUT IN THE DEPOSITION. I MEAN, THERE IS NOT A HIDDEN FACT . THIS IS , I MEAN , THIS IS A VERY TROU BLING SIT UATION THAT WE HAVE , YOU GU YS DOWN THERE TRYING THIS CASE OPPOSE THE CONVICTION , AND YOU DON'T ASK A KEY QUESTION!
YOUR HONOR , WE BELIEVE IT WAS ASKED OF MR . SIMS , A NDWE BELIEVE IT WAS ESTABLISHED THROUGH THERECORD, BUT WE BELIEVE ON THAT, AND I SEE THAT I AM INTO MY REBUTTAL TIME, BUT I WILL RETURN AFTER THE STATE HAS HAD AN OPPORTUNITY TO SPEAK.
> MAY IT PLEASE THE COURT. I AM KEN NUNNELLEY. I REPRESENT THE STATE OF FLORIDA IN THIS APPEAL .
I JUST, YOU KNOW , I DON'T KNOW WHO IS THE ONE THAT SHOULD HAVE ASKED, BUT YOU, WERE YOU THE , DID , WERE Y OUTHE LAWYER AT THE EVIDENTIARY HEARING?
MR . LENHART AND I TRIED THE CASE TO GETHER.
WHY, WHEN Y OU HAVE GOT STATUTORY MITIGATION AND HE IS NOT ASKED ABOUT STATUTORY MITIGATION ON RESENTEN CING , IT AL MOST SEEMS LIKE E ITHER SOMEBODY SEVERELY SLI PPED UP , OR THERE WAS A GO OD STRA TEGY REASON. IF THE STATE CALLED MS. CASHMAN T O REBUT THE IR CLAIM, WHY WOULDN'T THE STATE ASK THAT QUESTION? I MEAN, WE ARE HERE FOR A SEARCH FOR THE TRUT H, TO MAKE SURE THAT WE, YOU KNOW , UNDERSTAND THIS, AND WHAT IS THE EXPLANATION FROM THE STATE'S POINT OF VIEW?
BECAUSE WE AL READY K NEW SHE ARGUED IT IN HER CL OSING ARGUMENT TO THE JURY , THAT THE STATUTORY MENTAL MITIGATION EX ISTED , B ASED ON WHAT DR. TUMER TESTIFIED
THAT SHOWS THAT SHE WAS REALLY DEFICIENT IF SHE ARGUED IT IN HER CLOSI NG . SHE COULDN'T HAVE HAD A STRATEGY REASON FOR NOT PRESENTING IT. IT WAS IN THE DEPOSI TION. SHE MUST HAVE SIMPLY FORG OT?
NO, MA'AM, SHE DID NOT FORGET. SHE DID NOT FORGET ANYTHING. SHE PUT ON THE EVIDENCE THROUGH DR. TUMER , THA T MR . HITCHCOCK SU FFERS F ROM A BORDERLINE PERSON ALITY DISORDER. IN HER CLOSING ARGU MENT , MS. CASHMAN TOOK DR . TUMER'S TESTIMONY AND ARGUE D THAT , BASED UPON THAT TESTIMONY , THE STATUTORY MENTAL MITIGATORS EXISTED.
BUT YOU DON'T SEE ANY MATERIAL DIFFERENCE, THEN , BETWEEN WHAT HE SAID AT THE EVIDENTIARY, WHAT DR . TUMER SAID AT THE EVIDEN TIARY HEARI NG, WHAT HE SAID IN HIS DEPOSITION AND WHAT HE SAID AT TRIAL.
NO, MA'AM, I DO NOT. WHAT I SEE
THE PROBLEM, THE PROBLE M I HAVE , AND I AM TRYING TO UNDERSTAND, I S THAT , WHEN THE PROSECUTOR GOT BAC K , GOT UP IN CLOSING ARGUMENT , THE PROSECUTOR SAID , DR . TUMER TESTIFIED. THINK VERY CAREFULLY ABOUT WHAT HE TOLD YOU . DR. TUMER DID NOT RENDER THE OPINION AT ANY TIME DURING HIS TESTIMONY , THAT THE DEFENDANT WAS UNDER T HEINFLUENCE OF EXTR EME MENTAL OR EMOTIONAL DISTUR BANCE , A T THE TIME OF THE CRIM E. I MEAN, THAT WAS AN EMPHASIS THAT ASHTON MADE , IN ARGUING THIS CASE! I MEAN, THIS CASE , F OUR TIMES THIS CASE HAS BEEN TRIED.
WELL , JUSTICE WELLS , W HAT I WOULD SUG GEST , IS THAT WE HAVE AN ISSUE OF TRIAL STRATEGY, FIRST OF ALL, OR RATHER TACTICS , BE ING THAT THERE IS A DIFFERENCE BETWEEN STRAT EGY AND TAC TICS , I SUPPOSE , AND A PHILOSOPHICAL APPROACH, THE WAY MITIGATION IS PRESENTED THROUGH AN EXPE RT WITNESS. I WOULD SUGGEST THAT DR . TUMER, WHO IS A PSYCHOLO GIST , WE FREQUENTLY SEE HIM IN POSTCONVICTION PROCEEDINGS, IS WELL-QUALI FIED TO TESTIFY ABOUT PSYCHOLOGICAL ISSUES. I DON'T NECESSARILY CON CE DE, WELL, I DON'T CONCED E THAT A PSYCHOLOGIST OR A PSYCHIATRIST IS ENTITLED TO OFFER AN EXPERT OPINION ON A LEGAL MA TTER , W HICH IS THE EXISTENCE OF THE MENTAL MITIGATORS . NOW, WH ILE THAT TESTIMONY MAY COME IN , UNOBJECTED-TO IN CERTAIN CASES , I WOULD SUGGEST THAT IT I S AN ENTIRELY REASONABLE STRATEGY , FOR MS. CASHMAN TO TA KE DR. TUMER'S TESTIMONY AND A RGUETO THE JURY , THAT , B ASEDUPON IT , THE MENTAL MITIGATION IS PRESENT. I DON'T THINK WE CAN FIND , AND I DON'T THINK WE SHOULD FIND , THAT SHE WAS DEF ICIENT FOR NOT ASKING DR . TUMER , DOYOU HAVE A LE GAL OPI NION AS TO WHETHER OR NOT THE STATUTORY MENTAL MITIGATORS ARE PRESENT.
THE STATE DIDN'T PRESENT AN EXPERT , RI GHT?
AT TRIAL? NO, SIR.
THE RESENTE NCING .
NOT AT THE RESENTENCING , SIR, I DO NOT KN OW WHY.
AND THE TRIAL JU DGE , AT RESENTENCING , DIDN'T FIND ANY STATUTORY MITIGATI ON. CORRECT ?
THAT'S CORRECT , AND THEN IN THE POST CONVICTION PROCEEDING, WHEN THE STATE DID, IN FACT , PRESE NT AN EXPERT WITNESS TO THE , TO MR . HITCHCOCK 'S MENTAL STATUS , THE TESTIMONY BETW EEN THE STATE AND THE DEFENSE WAS CONFLICTING . THE DEFENSE WAS ARGUING THAT MR. HITCHCOCK HAS A BORDERLINE PERSONALITY DISORDER, AND THE STATE PRESENTED EVIDENCE THAT T HEDEFENDANT IS NOT A BORDERLINE PERSONALITY BUT , RATHER, IS AN ANTISOCIAL PERSONALITY.NEITHER OF THOSE DIAGNO SIS FALL WITHIN THE CA TEGORY O F A MAJOR MENTAL ILLNESS. THEY ARE B OT H PERSONALITY DISORDERS .
WOULD YOU AD DRESS THE ISS UE WITH REGARD TO THE TESTING AND THE DISCREPANCIES BETWEEN THE PERFORMANCE AND HOW THAT RELATE TO THE NECESSITY FOR FURTHER TESTING, B RAINDAMAGE, AND THAT AS PECT OF THE MENTAL HEA LTH ISSUES, PLEASE.
YES, YOUR HONOR. FIRST OF ALL, THE TESTIMONY , THE DISCREPANCY THAT I THINK YOU ARE TROF ERING , J USTICE LEWIS , IS THE S PLIT YOU ARE REFERRING TO , J USTICE LEWIS, IS THE SPLIT BETW EEN THE VER BAL I Q AND THE TEST IQ S CORES . 15-TO-20 PERCENT OF THE POPULATION HAS A SPLIT OF THAT MAGNITUDE, AND I BELIEVE THAT MR . HITCHCOCK'S WAS 13 POINTS, I F I AM NOT MISTAKEN . WHILE THERE IS , HO W DO I PUT THIS, A SCHOOL OF THOUGHT WITHIN THE FIELD OF PSYCHOLOGY THAT THAT M UCH OF A , THAT A SPLIT BETWEEN VERBAL AND PERFOR MANCE IQ'S OR IQ SCORES , DOES , IN FACT , MAYBE INDI CATE SOME SORT OF DIFFUSE BRAIN DAMAGE , THERE IS, ALSO , ANOTHER SCHOOL O F THOUGHT THAT SA YS BAS ICALLY LOTS OF FOLK S HAVE THIS AND IT REALLY DOESN'T S HOW ANYTHING, OTHER THAN THAT THERE IS A DIFFERENCE BETWEEN VERBAL AND PERFORMANCE IQ'S. YOU KNOW, I DON'T WANT T O B E TRYING TO QU ALIFY MYSELF ASAN EXPERT IN PSYCHOLOGY , AND I CERTAINLY DON'T WANT TO TRY TO MAKE MYSE LF A WITNESS , BUT IN DOING THESE CASES OVER A NUMBER OF YE ARS , YOU KNOW, IT IS NOT UNCOMMON TO SEE A SPLIT OF THIS SORT OF DEGREE, AND YOU KNOW, I KNOW FROM MY O WN PERSONAL EXPERIENCE, A NUMBER OF PEOPLE WHO ACTUALLY ARE ON DEATH ROW THAT HAVE SIM ILAR SPLITS, AND I WILL LEAVE THAT COMMENT AT THAT , WITHOUT NAMING ANY NA MES OR INITIALS, BUT IT IS NOT AN UNCOMMON THING.IT IS THOUGHT AN IRONCLAD , ABSOLUTE, NO KID DING , BRAIN DAMAGE EXISTS.
OR THE NE ED FOR F URTHER TESTING. HOW ABOUT THAT ASPECT ?
WELL, SOME PE OPLE THINK IT DOES AND SOME PEOPLE THINK IT DOESN'T.
OKAY .
WHAT WE HAVE IN THIS PARTICULAR CASE, I S DR . DEE AND DR. TUME R, I BELIEVE IT WAS , BOTH , DID SOME OF THE HALL STE AD ANBENDER GESTALT DRAWINGS AND MA YBE THE HALSTEAD AND BENDER-GESTALT , DRAWINGS AND, M AYBE , D R . TUMER DID SOME DIAGNOSIS ON THESE DRAWINGS, BUT TRAI LS SAY A AND B , BUT GENE RALLY THEY ARE ASKING THE DEFENDANT TO REPROD UCE A DRAWING.DR. McCLAIREN TESTIFIED THAT THERE WAS SOME MI NO R DISTORTION TO SAY THE DRAWING BUT THERE WAS NOTHING MAJOR THAT SETS OFF BELLS AND WHISTLES THAT THERE IS A PROB LEM HE RE. I BELIEVE THAT HE TESTIFIED THAT ONE OF T HEM , I THINK I T MAY HAVE BEEN THE BENDER , WAS, I BELIEVE HE S AID BETTER THAN A VERAGE, BUT IT WAS CERTAINLY CLOSE TO NORMAL . HE MAY HAVE SOME, THERE M AYBE SOME DIFFUSE BRAIN D AMAGE, BUT, AG AIN, WE DON'T H AVE THE DEGREE OF IMPULSIVE BEHAVIOR. WE DON'T HAVE THE SORT O F BEHAVIOR THAT YOU SEE WITH INDIVIDUALS WHO HAVE FR ONTAL LOBE BRAIN DAMAGE .
MAYBE THAT , NOW WE ARE GOING BACK TO T YING IN WHETHER THERE SHOULD HAVE BEEN THIS EVIDENCE PRESENTED TO THE RESENTENCING JURY. I MEAN, IT IS NO T A QUESTION OF IS IT , WELL , MA YBE T HEREIS NOT AS MUCH BRAIN DAMAGE, BUT THE ONLY WAY TO SAVE THE FOURTH TIME AROUND, LOOKING BACK AT JUS TICE MacDONALD BACK THE FIRST TIME AROUND THOUGHT THIS CASE SHOU LD BE REDUCED TO LIFE BECAUSE OF THE IMPULSIVITY THAT HE OBSERVED IN THIS CRIME , THE DRINKING AND EVERYTHING ELSE THAT NIGHT , SO IT WOULD SEE M THAT, ANY DEFENSE LAWYER FOURTH TIME A ROUND , WOULD BE DOING EVERYT HING POSSIBLE TO FOCUS THE JURY ON OBJECTIVE REASONS THAT THIS CRIME WAS COMMITTED , UNDER EXTREME MENTAL EMOT IONAL DIS TRESS , AND SO THAT IS REALLY WHATWE ARE BACK TO , NOT WHETHER , WELL, WHY WOULDN'T THE BRAIN DAM AGE HAVE BEEN PURS UED , IS REALLY THE QUESTION.
WELL, JUSTICE PAR IENTE , AGAIN , I DON'T WANT TO K EEP LOOPING BACK TO THE CLOSING ARGUMENT, BUT THAT IS W HEREWE HAVE TO START , BEC AUSE MS. CASHMAN ARGUED THAT WE HAVE IMPULSIVITY AND THAT IMPULSIVITY IS A HALLMA RK O F BORDERLINE PERSONALITY , WHICH IS THE TESTIMONY IN THE TRIAL REC ORD.NOW, WHEN YOU FAST FORWARDUP TO THE POSTCONVICTION PROCEEDING, YOU FIND OUT WHAT THE STATE 'S GONNA DO IN FRONT OF ANOTHER RESENTENCING JURY , IF YOU ALL GIVE HIM THE CHAN CE, A NDTHAT IS WE ARE GOING TO CONTEST THE ISSUE THAT HE IS BORDERLINE PERSONALITY AT ALL AND PUT ON EVIDENCE THAT THIS MAN IS TR ULY ANTISOCIAL PERSONALITY DISORDER, WHICH TRANSLATES TO BE THAT HE IS MEAN, AND HE HAS NO RE GARD FOR THE RIGHTS OF OT HERS .
THAT BRINGS US ALL OF THE WAY BACK TO THE QUESTION THAT WE STARTED OFF ASKING , IS NE ITHER YOU NOR THE OTHER SIDE DELVED INTO THIS QUESTION WITH DEFE NSE COUNSEL .
YES, SIR, IT S DOES , AND THE ANSWER TO THAT , IS THAT , EVEN IF THIS COURT , LET MEBACK UP . YOU ALL DON'T HAVE TO D E CIDE BOTH PRONGS OF STRICKLAND. YOU DECIDE THE EASIER ONE OF THE PREJUDICE OR PER FORMANCE PRONGS. IN THIS CASE , THE PREJ UDICE PRONG IS CLEA RLY NOT ESTABLISHED, BECAUSE OF THE TESTIMONY AT THE EVIDENTIARY HEARING, FROM THE CONFLICTING MENTAL STATE EXPERTS, THAT RESULTED IN THE COURT REJE CTING OR NOT CREDITING , R ATHER , THE TESTIMONY OF THE DEFENSE EXPERTS AND CRED ITING THE TESTIMONY OF THE STATE'S EXPERTS, WHICH, CLEARLY , PRECLUDES A FINDING OF ANY PREJUDICE.
LET ME SWITCH YOU T O THE FIRST AREA O F INQU IRY IN THIS BUSI NESS ABOUT WHETHER THE GUILT P HASE ISSUES GENER ALLY, CAN BE RAIS ED. THE RULE THAT WE HAVE SAYS THAT ALL OF THE POSTCONVICTION MOT ION GROUNDS MUST BE STATED , ONE YEAR FROM THE CONVICTION AND SENTENCE BECO MING FINAL . NOW , UNDER THAT EXP RESS LANGUAGE IN THAT RULE , DID THIS CONV ICTION AND SENTENCE BECOME FINAL AT ANY TIME , AFTER 19 83 , UN TIL CERT W ASDENIED BY THE U.S. SUPREME COURT , A FTER OUR 20 00 DECISION ?
YOUR HONOR, THIS CASE BECAME FINAL ON OCTO BER 18 , 1982, WHEN THE UNITED STATES SUPREME COURT DE NIED CERTIORARI . ALMOST TEN YE ARS AFTER MR . HITCHCOCK WAS FIRST CONVICTED AND SENTENCED TO DEATH, THE U N ITED STATES SUPREME COURT G RANTED RELIE F IN HITCHCOCK VER SUS DUGGER.
IN 19866.
ACTUALLY G R ANTED I N IN 1986. ACTUALLY GRANT HAD IN JULY OF '86 . BUT HERE IS THE DILE MMA THAT I AM TRYING TO WORK THROUGH, AND THAT IS THIS C OURT CAME OUT WITH Mc CRAY IN 19 84 , AND McCRAY CLEA RLY SAYS THAT YOU COULD FILE A SUCCESSIVE MOTION ON A DIFF ERENT GROUNDS , AND IT, THEN THE COURT CAME ALONG AND HAD THIS DEADLINE OF JUL Y 1 , ' 87 , WHICH SAID THAT IT WAS GOING TO AM END THE PROCED URE, S O THAT EVERYTHING HAD TO BE BROUGHT AT ONE TIME . BUT AT THAT POINT IN TIME , THIS CASE WAS ACT UALLY HAD , THE U.S. SUPREME COURT HAD STEPPED IN AND GRANTED CERT ! NOW , I , WHER E DOES T HAT LEAVE US?
THAT LEAVES US BACK TO THE ZIGLER , CER ESI AND DO WNS DECISIONS, WHERE THIS C OURTC LEARLY SAID WHAT THE RULE MEANS, AND THAT IS THAT THAT JANUARY 1 , 1987 CUT OFF DA TE , IS ABSOLUTE. NOW, MR. HITCHCOCK COULD HAVE GONE TO FEDERAL COURT , AND AS JUSTICE CA NTERO SUGGESTED, HE COUL D HAVE ASKED THE FEDERAL COURT TO HOLD HIS PROC EEDING IN ABEYANCE TO ALLOW HIM TO EXHAUST AVAILABLE STATE REMEDIES, BA SED UPON THE POSTURE AND CHANGE OF STATE LAW AT THE TIME, AND IN FACT AS I AM SURE THIS COURT IS AWARE, WE HAVE HAD A NUMBER OF DEFENDANTS DOING JUST THAT IN THE FEDERAL COURTS , IN THE WAKE OF RING VERSUS ARIZONA . WHERE WE HAVE HAD A NU MBER OF FEDE RAL PROCEEDI NGS, HELD IN ABEYANCE, TO ALLOW T HEDEFENDANT TO GO BACK T O STATE COURT AND RAISE THE RING V AR IZONA CLAIMS , SO THE SHORT ANSWER IS YES, MR . HITCHCOCK ABSOLUTELY COULD HAVE GONE BACK TO S TATECOURT AND SHOULD HAVE G ONE BACK TO STATE COURT, AND THEFACT THAT HE DIDN'T , IS A MATTER THAT, NOW , HE IS BOUND BY .
ARE THERE ANY DECI SIONS THAT DISCUSS OR ADDRESS A RULE ON THAT DISCRE ET ISSUE ? IF THERE IS NOT A RELINQUISHMENT OR SOME EQUIVALENT THAT Y OU WOULD HAVE THE PROCEE DINGS, B OTH IN FEDERAL COURT AND IN STATE COURT , I S THERE ANY THAT HAS DISCREET LY S AID THAT, YES , YOU CAN DO THAT? ON THAT ISSUE?
I DON'T KNOW IF THERE ARE ANY, I AM U N AWARE OF ANY DECISION THAT IS SPECIFICALLY SAY THAT. I KNOW A LOT OF DEFENDANTS HAVE DONE IT .
UNDER RELINQUISH MENT OR A STAY KIND OF SITUATION OR WHAT WE RE THE CIRCUMSTANCES ?
TRADITIONALLY WHAT THEY DO, AND LET ME , I AM TRYING TO THINK , I HAVE GOT T WODEFENDANTS I CAN US E AS AN EXAMPLE, RICHARD SH EER AND JERRY BURR ELL. BOTH OF THESE DEFENDANTS HAVE HABEAS CASES PENDING IN THE MI DDLE DISTRICT OF FLORIDA IN THE T AMPADIVISION. WHEN RING V ARI ZONA CAME OUT , BOTH OF THESE DEFENDANTS FILED A MOTION WITH THE MIDDLE DIST RICT FEDERAL COURT, ASKING THAT THEIRPROCEEDINGS BE HELD IN ABEYANCE PE NDING T HEEXHAUSTION OF STATE REMEDIES AND THE FEDERAL COURT ALLOWED THAT AND JUST NOW THEY ARE KI CKING BACK
THERE IS SOMETHING F ROM THE FEDERAL COURT.
ABSOLUTELY. THOSE ARE THE TW O I THINK OF. I KNOW I HAVE HAD OTHERS, BUT YOU KNOW, AG AIN , I
BUT HOW , WHAT , H OWDOES THE AVAILABI LITY OF COUNSEL PLAY INTO THIS? I MEAN , MR . HITCHCOCK WAS BEING REPRESENTED I N FEDERAL COURT BY WHOM ?
I T IS ON THE L IST, JUDGE.
AT THE TIME THAT YOU ARE SAYING HE COULD HAVE FILED A 3.850 MOTION, WHO WAS REPRESENTING HIM IN FEDERALCOURT?
I BELIEVE - -
WAS IT CCR C?
I BELIEVE IT WAS CR AIG BERNARD AND RICHARD GREEN , YOUR HONOR.
THAT'S CORRECT.
DID THEY HAVE ANY OBLIGATION TO FILE A 3. 850 ON MR . HITCHCOCK'S BEHALF?I AM CONCE RNED OF WHO WOULD HAVE FILED THIS MO TION ON HIS BEH ALF?
THEY DID FILE IT ! THEY, SEE , MR . HITCHCOCK HAD HIS DIRECT APPE AL. HE HAD HIS 3.850 MOTION, AND THEN HE HAD HIS FEDERAL HABEAS AND HE HAD LAWYERS AT ALL TIMES. THE, TH OSE LAWYERS THAT REPRESENTED HIM IN HIS FIRST POSTCONVICTION PROCEEDINGS ARE THE ONES THAT Z OO HAVE DONE THIS, AND THE FACT THAT THEY DIDN'T, IT IS WAIVED, AND IT IS , IT IS WAIVED.
SO YOU ARE SAYING THAT THESE, AND HOW WERE THEY APPOINTED TO MR . HITCHCOCK 'S CASE ? WERE THEY VOLU NTEER LAWYERS? WERE THEY LAWYERS THAT WERE APPOINTED BY THE TRIAL COURT ? DO YOU RECALL?
I SIM PLY DON'T KNOW , YOUR HONOR.I DO NOT KNOW THE ANSWER TO. THAT I AM SURE IT IS IN THE RECORD .
BECAUSE, SEE , NOW WE HAVE A SYSTEM WHERE , E VERYDEATH-ROW IN MATE HAS AC CESS TO A LAWYER , EITHER TH ROUGH CCRC OR THR OUGH REG ISTRY O R SOMETHING , AND , BUT , AT THAT TIME , WE DIDN'T HAVE THAT SAME KIND OF SYSTEM, SO I AM CONCERNED WITH WHO WOULD HAVE, REALLY, BROUGHT THIS 3.850 ON HIS BEHA LF.
I THINK THE A N SWER IS , AGAIN , JUSTICE QUIN CE, THE LAWYERS THAT FILED THE 3. 85 0 ARE THE ONES WHO APPROPRIATELY BROUGHT IT.
OK AY. LET'S GO TO YOUR ARGUMENT AS TO THESE WITNESSES THAT CAME FORT, THAT CCR IS CLA IMING ARE N E WLY DISCOVERED WITNESS TESTIMONY.
OKAY .
WHAT IS YOUR, ON THE MERITS , IS THAT T YPE O F EVIDENCE ADMISSIBLE? IS IT HEARSA Y? IS IT , DOES I T COME IN UNDER CHAMBERS OR IS IT LEFT OUT ?
I THINK HE HAS GOT SOME 804 PROBLEMS, BECAUS E WE LACKED THE CORROBORATION, GIVEN THAT I T IS AN OF FE R TO EXONERATE THE DEFENDANT. WE HAVE THE CIRCUIT COURT MAKING, AT THE VERY LE AST , AN IMPLICIT CREDIBILITY DETERMINATION, REJECTING CREDIBILITY OF THESE WITNESSES, IN ADDI TION TO FINDING THAT THE NEW EVIDENCE ISSUE WAS ALRE ADY DECIDED ON THE MERITS BY THIS COURT IN THE DIRECT APPEAL. NOW, I HAVE HEARD
THAT SAYS TO THE CHARACTER OF RICH ARD HITCHCOCK.I AM TALKING AB OU T HIS ALLEGED CONFESSIONS.
THAT IS WHAT I AM TALKING ABOUT, JUSTICE PARIENTE.
WHAT WAS DECIDED ON DIRECT APPEAL ABOUT THAT?
WHAT WAS DECI DED ON DIRECT APPEAL IN WHAT COUNSEL CONTIN UES LY RE FERS TO AS AV OID HEARING THAT CERTAINLY DIDN'T FEEL VOID TO ME WHEN I ARGUED THE CASE IN FRONT OF YOU ALL SEVERALYEARS AGO , WAS A CLAIM THAT RICHARD HITCH KORL KOK HAD CONFESSED - - RICHARD HITCHCOCK HAD CONF ESSED TO THE MURDER. THAT WAS THE NEWLY DISCOVERED THAT HAD COME U P BEFORE AND THE NEWLY DISCOVERED EVIDENCE CLAIM AS IT TA KES ITS FORM IN THE POSTCONVICTION PROCEEDING,IS THE SAME SONG AND SAME VERSE OF THAT DIRECT APPEAL ISSUE.
IN REJECTING THAT , WHAT WAS THE, WHAT DO WE SAY ABOUT THAT ISSUE?
THE
ABOUT THE CONFE SSION THAT HE MADE?
THE BOTTOM LINE WAS THIS COURT SAID THE ISSUE HAS NO MERIT.
THE DIRECT APPEAL, THE INITIAL 1982 APPEAL .
NO, MA'AM. THE , MR . HITCHCOCK'S LAST APPEARANCE BEFORE THIS COURT.
YOU ARE TALKING ABOUT IN 2000.
YES, YOUR HONOR.
BUT AC TUALLY , IN THE GIST OF THE WHAT WE SAID THERE , THAT THIS WAS NOT A M ATTER WHICH WAS PROPER IN THE APPEAL OF THE RESENT ENCING , I MEAN, THIS WAS A GU ILT PHASE ISSUE.
WELL, JUSTICE WE LLS, I KNOW
IS N'T THAT WHAT WE SAID?
I KNOW WHAT YOU ARE SAYING BUT THE COURT, THE FINAL ANALYSIS BOTTOM LINE FROM THIS COURT, WAS THIS ISSUE HAS NO MERIT , AND I AM QUOTING AS CLOSELY AS I C ANTO WHAT THIS COURT ACTUALLY SAID . NOW , IF THAT PROCEEDING OR IF THAT ISSUE WAS NOT PROPERLY BROUGHT OR , R ATHER, THAT IS NOT THE WA Y I WA NT TO PUT IT , IF THE MERI TS OF THAT ISSUE WERE NOT PROP ERLY PUT BEFORE THIS COURT ON DIRECT APPEAL , AND I MEAN PROPERLY IN THE SE NSE T HAT THEY WERE NOT PROPERLY BRIEFED.IF THE DEFENDANT ONLY ARGUED THE PROCED URAL COMPONENTS OF IT AND DID NOT ADEQUATELY ARGUE THAT THE MERITS , AND I KNOW I AM ON YOU ALL'S TIME NOW.I AM SORRY. IF YOU DIDN'T ARGUE THE MERITS CORR ECTLY AND SUFFICIENTLY IN HIS CORRECT APPEAL BRIEF, THEN HE HAS WAIVED THE ISSUE NOW. HE IS THE MA STER OF HIS O WN CASE. IF HE DID NOT ARGUE SUFFICIENTLY THAT JUDGE CONRAD DECIDED THE ISSUE WRONGLY, FOR WHATEVER REASON , THEN HE CAN 'T COME BACK WITH A SECOND BITE AT THE APPLENOW AND TRY T O REDID DO IT. AND TRY T O REDO IT. WITH, LIKE I SAY , I AM OUT OF TIME AND I WOULD RESPECTFULLY ASK THE COURT, IF THERE ARE NO FURTHERQUESTIONS, TO RE FUND THE DENIAL OF THE 3.851 RE LIEF AND DENY THE HA BEAS PETITION. THANK YOU.
CHIEF JUSTICE: MR. DRISCOLL.
WHAT IS IMPORTANT TO REMEMBER IS THAT I HAVENEVER SEEN AN ORDER. THIS WAS MR . HITCHCOCK'S APPELLATE PU BLIC DEFENDERS WHO FO UGHT AND DID AN OUTSTANDING JOB FOR HIM AND MANAGED TO SAVE HIS LIFE SOHE COULD BE HERE , BY RA ISING THE CLAIM , WHICH CORREC T IN ERROR IN THIS STATE'S DEATH PENALTY SYSTEM, BUT THESE WERE LAWYERS WHO STEPPED INTO ACTION , ONCE A WA RRANT WAS SIGNED. IT WASN'T AS IF THERE WAS CCR OR CCRC ASSI GNED TO MR . HITCHCOCK'S CASE. THESE WERE L AWYERS, AS M Y UNDERSTANDING OF THE HISTORY , HOW IT OCCURRED BACK THEN , WHO SPRUNG INTO ACTION , AND DID THIS.
THEY WERE PUBLIC DEFENDE RS.
THEY WERE THE APPE LLATE , FROM THE APPELLATE PUBLIC DEFENDERS OFFICE WITH THE CIRCUIT THAT MR . HIP KOK'S CASE WOULD HAVE MR. HITCHCOCK'S CASE WOULD HAVE HAD THAT AT. THEY HAVE HAD A N OTHER CIRCUIT SINCE THEN BUT THEY STAYED WITH MR. HITCHCOCK'S CASE, BUT MR . HITCHCOCK , THE STATE SEEKING TO EXECUTE HIM IN TODAY'S DATE AND TIME, AND HE SH OULD HAVE , HE SHOULD HAVE THE TY PE OF REVIEW THAT WE I N SIST UPON TODAY, IN OUR SYSTE M. AND THAT IS NOT TO SAY ANYTHING AGAINST THEM, WHEN THEY RAISED THIS ISSUE IN THE 3.850. IT WAS TO TAKE THAT ISSUE OFF THAT BECAME THE ISSUE BEHIND HITCHCOCK V DUGGER , BUT ALSO BY ACTING UNDER THOSE RULES, THEY KNEW T HAT THEY COULD COME BACK B Y A READING OF THE RU LE THAT EXISTED AT THE TIME . BEFORE MR . HITCHCOCK , BEFORE MR. HITCHCOCK COULD COME BACK ON A SUCC ESSOR MOTION , THIS COURT CHANGED THE RULES , AND THE TIME RAN OUT .
BUT THE PROBLEM THAT I HAVE WITH THAT , IS THAT , WHEN THIS, WHEN HE GOT BACK OVER HERE , IN 1 9 , AT THE END OF 1987 , FOR A RESENTENCING . HE DIDN'T ATTEMPT TO PURSUE THE MA TTER!
WELL, I BELIEVE H E PROBABLY WOULD HAVE WANTED TO, BUT THIS IS RIGHT ABOUT THE TIME WHERE YOU COUL DN'T EVEN PUT LINGERING DOUBT ON, SO WHEN THIS MAN HAD TO GO BACK
LINGER ING DO UBT ISSUE?
IT IS ACTUAL DOUBT NOW.
SEE, THE PROBLEM THAT I HAVE GOT WITH THIS, IS THAT YOU SAY THAT EVERYONE HAS DONE A GREAT JOB IN PUR SUING ISSUES, BUT THOSE ISSUES HAD TO DO WITH THE PE NALTY PHASE. AN ACTUAL CLAIM OF INNOCENCE , NOW , WE GO BACK T O WHETHER THESE WERE, THIS WAS KNOWN SINCE THE 198 0s OR IS IT JUST RE CENT LY COME TO LIGHT? AND I HAVE GOT PROBLE MS WITH THE FACT THAT I T IS COMINGTO LIGHT, ONLY A FTER RICHARD HITCHCOCK HAS DIED AND CAN'T REFUTE WHAT I S BEING SAID.
OKAY.WELL, THAT WAS EVIDENCE THAT WAS DISCOVERED, ONE WAY OR ANOTHER , LONG AFTER JAMES HITCHCOCK HAD BEEN UP TO THE U.S. SUPREME COURT , AND HE HAS BEEN IN A RESENTENCING MODE EVER SINCE THEN , BUT BASED ON THE TESTIM ONY , ALL OF THE TESTIMONY, THE CHARACTER OF RICHARD , HOW W E INTRODUCED THIS AT T HEHEARING , IT IS PRETTY C LEAR WHY NOB ODY WANTED TO COME FORWARD, BECAUSE THEY WERE SCARED. AND THAT I S AN ISSUE