HEAR YE.HEAR YE.HEAR YE.THE SUPREME COURT OF THEGREAT STATE OF FLORIDA IS NOW IN SESSION.ALL WHO HAVE CAUSE TO PLEA , DRAW NEAR , GIVE ATTENTION AND YOU SHALL BE HEARD. GOD S AVE THESE UNITED STATES, THE GREAT STATE OF FLORIDA AND THIS HONORABLE COURT. YOU M AY BE SE ATED.
CHIEF JUSTICE: GOOD MORNING AND WELCOME TO THE FLORIDA SUPREME COURT.THE FI RST CASE WE HAVE GOT IS JOHN SON VERSUS STATE , ANDI SE E WE HAVE TWO CA SES W ITH A COMBINED EVIDENTIARY HEARING YE T WE HAVE THEM FOR TWO SEP ARATE O RA L ARGUMENTS AND WE HAVE B OTH COUNSEL AR E THE SAME , AND I KNOW MANY , M ANY IS SUES ARE IDENTICAL , SO MY SUGG ESTION I S GOING TO BE THAT , RATHER THAN TREAT THEM TOTA LLY SEPARATELY , THAT YOU CAN, G IVING YOU CERTAINLY MORE THAN THE 20 MINUTES , BUT TO GO A HEAD AND , REALLY, ADDRESS BOTH CASES , SINCE THE COURT I S FAMILIAR WITH THE FACTS , AND SEE IF WE CAN'T SORT OF REDUCE THE TIME FO R THE TWO TOGETHER.IS THAT ALL RIGHT?
CERTAINLY , YOUR HO NOR. Y ES.
CHIEF JUSTICE: YES .
I DON'T WANT TO BE , MA DAM JUSTICE, DOES THAT MEAN MY LIGHT IS STILL GOING TO GO ON AF TER 2 0 M INUTES?
CHIEF JU STICE: IF IT DOES , DON'T WORRY AB OUT IT.
THANK YOU. MAY IT PLEASE THE COURT. MY NAME IS CHARLES WHITE. I AM FROM MIAMI. I AM THE REGISTRY ATTORNEY FOR RONNIE JOHNSON IN BOTH OF THESE CASES. AS THE COURT IS WELL AWARE , THERE ARE TWO DEATH SENTENCES THAT WERE IMPOSE ED , B ASED UPON TWO MURDERS THAT TOOK PLACE, B ACK IN MARCHAND APRIL OF 19 89 , AND MR . JOHNSON WAS REPRESENTED AT TRIAL BY THE SAME ATTORNEY , A MAN BY THE NAME OF RAYMOND BODINI, AND THE IS SUES THAT ARE MO STLY SIMILAR , HAVE TO DO WITH THE PENALTY P HASE D EATH SENTE NCE TYPE ISS UES , W HICH WERE COMMON AS TO BOTH CASES , AND THEN THERE WERE S OME ISSUES THAT P E RTAIN MOSTLY TO THE GUILT PH ASE OF THE TR IAL , W HICH G O T O E ACH INDIVIDUAL CASE , AND THERE W AS, ALSO , A CONFESSION THAT WAS INTRODUCED INTO EVIDENCE IN BOTH CASES , THAT WAS SUBJECT OF A MO TION TO SUPPRESS, AND IF THE COURT WOULD RECA LL, WHEN THE CASE WAS ON DIRECT AP PEAL , THAT WAS CONSOLIDATED , ALSO, FOR ORAL ARGUMENT PURPOSES, AND THE OPINI ONS CAME OUT ADDRESSING EACH O P INION , ADDRESSING THE SUPPRESSION ISSUES AT THAT MOMENT.
ARE YOU GOING TO ARGUE THE ISSUE INVOLVING THE SUBSTITUTION OF COUNSEL? THAT IS A ISSUE THAT IS COMMON 234 IN BOTH OF THESE, CORRECT?
YES -- COMMON IN B OTH OF THESE , CORRECT?
YES.
AND ARE YOU PLANING TO ARGUE THAT TODAY?
YES. IN MANY ISSUES, INVOLVING THE INEFFECT IVENESS OF COUNSEL AND ALSO THE SUBSTITUTION OF COUN SEL THAT WERE RA ISED , ONLY ONE AND IT WAS LI MITED TO ONE , RESULTED IN AN EVIDENTIARY HEARING, AND THAT WAS THE FAILURE , COMPLETE FAILURE OF MR . BODINE I TO HAVE PRESENTEDANY OR BASICALLY LEARNED A BOUT HIS CLIENT'S ME NTAL CONDITION , PRIOR TO THE TRIAL .
DIDN 'T MR . B O DINI ARGUETHAT HE, IN FACT , HA D MR . JOHNSON EX AMINED BY A MENTAL HEALTH EXPE RT, AND THE EXPERT BASICALLY TOLD HIM THAT THERE WAS NOTHING THERE THAT , OF A MITIGATING NATURE?
WELL, THERE WAS A LITTLE BIT MORE THAN THAT. OKAY. WHAT HAPPENED WAS THAT THERE WAS APPROXIMATELY 31 MONTHS, PRIOR TO, BETWEEN THE T IME O F MR. JOHNSON'S INDICTMENT AND THE FIRST TRIAL. D URING THE JURY SELECTION OF THE FIRST TRIAL , AND THEREIS NO REC ORD THAT I HAVE SEEN, GOING THROUGH THE VOLUMES OF BOXES THAT I HAVE IN THIS CASE THAT, SH OWS THAT, BETWEEN, IN THAT 31 MONTHS THAT , MR . BODINI FILED ANY MOTION S WITH THE COURT, AS KING THEM TO APPOINT EXPERTS. DURING THE JURY SELECTION PROCESS, HE TOLD THE J U DGE THAT HE WAS UNABLE TO FIND SOMEBODY WHO WOULD BE WILLING TO EVALUATE MR. JOHNSON FOR PURPOSES OF THE PENALTY PHASE .
YOUR CL IENT DID TESTIFY IN THE EVIDENTIARY HEARING, THAT CO RRECT?
THAT IS CORRECT.
AND HE TESTIFIED THAT A M ENTAL HEALTH EXPERT DID INTERVIEW HIM , DID HE NOT?
YES. HE SAID THAT --
SO AS FAR AS THERE BEING SOME KIND OF AN INTERVIEW BY A MENTAL HEALTH EXPERT , HASN'T THAT BEEN CONCEDED B Y YOUR CLIENT ? NOW , WHAT IT WAS AND WHEN IT WAS AND AL L OF THAT, MAY BE UP IN THE AIR , BUT WOULD YOU AGREE THAT THE EVID ENCE IS UNDISPUTED. OFF YES.THE EVIDENCE IS CLEAR THAT THERE WAS ONE, THAT DR . LLOYD MI LLER DID INTERVIEWMR. JOHN SON. I THINK IT IS IMPORTANT , THOUGH, WHEN HE INTER VIEWED, AND I THINK IT IS IMPORTANT WHA T HE WAS TO LD. MR. BODINI DIDN'T GIVE HIM ANY BACKGR OUND INFORMATION, D IDN'T GIVE HIM ANY INDICATION AT ALL OF WH AT TO LOOK FOR.
DID THE LAWYER SAY THAT HE PAID THAT EXPERT HIMSELF, OUT OF HIS O WN POCK ET?
NO. I THINK HE DID IT AS A FA VOR.
HE SAID THE MENTAL HEALTH EXPERT DID THE EXAMINATIONAS A FAVOR TO THE LAUFER?
RIGHT . HE DIDN'T BOTH ER TO SU BMIT A BILL, BECA USE HE DIDN'T THINK HE WO ULD GET P AID. THIS WAS A SI TUATION , I AM NOT REALLY QUITE SURE WH Y MR . BODINI WOULD WAIT UN TIL THE TRIAL TO BRING THIS UP TO THE COURT, BUT APPARENTLY THERE WAS A PROBLEM WITH GETTING EXPERTS PAID .
WHAT SIGNIFICANT DIFFERENCES BETW EEN THE REPORT BY THE LA WYER , SAYS THAT THE MENTAL HEALTH EXPERT THAT HE SENT OUT , R EALLY , WASN'T AB LE TO COME UP WITH ANYTHING ,, WHAT DRAMATICALLY WAS DIFFERENTABOUT THE EXPERT THAT YOU HAD TESTIFY AT THE EVIDENTIARY HEA RING, TO SHOWTHAT THERE WAS SOME BLOCKBUSTER THING OUT THERE IN THIS MAN'S BACKGROUND OR MENTAL HEALTH HIS TORY, THAT WOULD HAVE MADE SOME DRAMATIC DIFFERENCE I N THIS TRIAL? WOULD YOU PINPOINT THAT FOR US.
YES . DR. MARY HA BER, WHO DID EVALUATE MR . JOHNSON EXTENSIVELY AT MY RE QUEST , DID FIND THAT H E , FELT AFTER GOING THROUG H ALL THIS BACKGROUND INFORM ATION AND INTERVIEWING HIM AND HISFAMILY, THAT HE HAD SUFFERED F ROM ADJUSTMENT DISORDERS , WHICH WERE PERSONALITY DISORDERS THAT WERE BASED UPON THE CIRCUMST ANCES --
THESE ARE PR ETTY SOFT TERMS , ARE THEY NOT? WHAT IS THE MOST D RAMATIC DIAGNOSIS OR FINDING THAT DR . HABER MADE, THAT SHOWS THERE WAS SOMETHING OUT THERE , LIKE BR AIN D AMAGE OR MENTAL RETARDATION OR WAS THERE SOMETHING VERY DRAMATIC OUT THERE?
SHE DID NOT FIND THATTHERE WAS MENTAL RETARDATION OR BRAIN DAMAGE.SHE DID FIND , HOWEVER , THAT HE HAD ENGAGED , HE HAD ENGAGED IN EXTREME BEHAVIOR , THAT HIS JUDGMENT WAS IMPAIRED AS A RESULT OF THESE ADJUSTMENT DISORDERS THAT WERE CAU SED BY VARIOUS TRAGEDIES IN HIS LIFE AND ABOUT THE RE PRESSED HOME SEXIALITY THAT HE WAS NOT ADJUSTING TO PROPERLY.
IF I UNDERSTAND IT CORRECTLY , HE DIDN'T DISCLOSE HIS HOMO SEXUALITY TO ANYBODY, UNTIL HE WAS ON D EATH ROW OR IN PRISON FOR SEVERAL YE ARS, THAT CORRECT?
HE DID NOT VOLUNTEER IT TO ANYBODY UNTI L THAT PO INT, BUT THERE WAS NO EVIDENCE THAT HE WAS EVER ASKED. MR. BODINI DID NOT EN GAGE IN AN IN-DEPTH BACK GROUND INVESTIGATION.HE DID NOT HAVE ANYB ODY REALLY GO IN THERE AND TALK TO HIM FOR MORE THAN 15 MINUTES. THAT WAS THE PROBLEM WITH MITIGATION.
LE AVING ASIDE FOCUSING ON PREJUDICE, THIS WAS A MURDER-FOR-HIRE CASE, CORRECT?
THAT'S CORR ECT.
SO HE IS NOT TALKING ABOUT SOME , A HOMOSEXUAL MURDER OR SOMETHING, SOME ACT OF PASSION. IT WAS A CO LD, DISPASSIONATE SHOOTING. AND I AM HAVING TR OUBLE SEEING WHERE THE PREJUDICEIS, GIVEN THE N ATURE OF THE MITIGATION PRESENTED , AND GIVEN THAT THERE WAS , I THINK IT WAS DR . HABER OPINION THAT THERE WAS SOME SEXUAL DEVIANCY AND HOWWOULD THE RESU LTS BE COMPROMISED , HAD THE JURY NOT HEARD FROM EXPERTS OR SOMEONE LIKE THEM , NOT BEINGPUT ON IN THE PENALTY PHAS E?
I THIN K THE AB ILITY TO EXERCISE JUDGMENT. HIS NEED FOR S T ATUS. I THINK DR . HABER WAS V ERY CLEAR UPON THAT , THAT HE SORT OF OVER COMPENSATED FORWHAT HE FELT WAS THE SH AME AND HUMILIATION OF HIS SEXUAL ORIENTATION , AND THE THINGS HE WAS DOING IN ORDER TO SATISFY THAT. THAT MADE HIM MORE SUSCEPTIBLE TO BEING EN TICED IN ORDER TO COME FOR WARD AND COMMIT THESE CRIMES , THESEMURDERS FOR HIRE .
NOW, I KNOW YOU ARE S AYING THIS TO U S WITH A STRAIGHT FACE , BUT W E REVIEW DEATH PE NALTY CASES ALL THE TIME , AND I AM JUST HAVI NG A HARD TIME SEEING HOW A JURY WOULD HAVE SEEN THAT AS B EING COMPEL LING MI TIGATION , GIVEN THE AGGRAVATORS IN THIS CASE , AND I G UESS IT IS JUST A JUDGMENT CALL, BUT THE JUDGE CERTAINLY DIDN'T THINK AND DID A VERY CAREFUL EVA LUATION OF THIS MENTAL HEALTH MITIGATION , AND CAME TO THE SAME CONCLUSION ON THE DEFICIEN CY O R PREJ UDICE , I AM SO RRY , ON THE PREJUDICEPRONG , DID THEY NOT?
WELL , THE THIN G IS THAT, BECAUSE OF THE TESTIMONY OF THE FA MILY MEMBERS, SOME OF THESE STRESSORS, THE TRAGEDIES IN HIS LIFE, THE DEATH OF HIS GRANDMOTHER, THE DEATH OF HIS CLOSEFRIEND, ALL OF THESE DIFFERENT THINGS , MR . BODINI WAS TRYING TO FIT HIS CLIENT INTO THE EXTREME EMOTIONAL STRESS STA TUTORY MITIGATOR.
WHAT TROUBLES ME IS THAT THESE STRESSORS THAT DR . HABER ARE TALKING AB OUT, ARE THE KIND S OF STRE SSORS THAT MANY OF US GO THRO UGH , FAMILY MEMBERS D YING , FRIENDS DYING , THOSE KINDSOF THINGS , AND SO WHAT ABOUT HIS MENTAL STATE MADE THOSE KINDS OF STRESS ORS MORE STRESSFUL FOR HIM THAN FOR ANY OTHER PERS ON? THAT IS THE CONNECTION I D ON'T GET HERE.
DR. HABER SAID IT WAS A MIX OF THE DR UGS , THE HOME SEXIAL -- THE HOME SEXIAL ITY , IT I S NOT A QUESTION O F BEING A DE VIANT , BUT HE JUST COULDN'T ADJUST TO IT RIGHT , PRIMARILY BECAUSE OF THE WORLD IN WH ICH WE LIVE IN. THESE ARE THING THAT IS CAUSED HIM TO HAVE AN ADJUSTMENT DISO RDER. HE WASN'T ABLE TO C OPE WITH THESE THINGS, AND IT MADE HIM VULNERABLE, AND IT MADE HIM OPER ATING UNDER EXTREME EMOTIONAL DISTRESS . I THINK THAT MR . BODINI , IN A SENSE , WAS ARGUING ARESULT OF THESE STRESS ORS THAT HE SA W, AND HE UNDERSTOOD THEIR SIGNIFICANCE BUT DIDN'T HAVE --
EXTREME EMOTIONAL MENTAL DIS TRESS , EXTREM E. AN ADJUSTMENT DISORDER TYPICALLY GOES A WAY WITHIN SIX MONTHS, UND ER THE DSM-3 , CORRECT?
THAT CAN BE CASE , ALTHOUGH DR . HABER INDICATED THAT IT CAN CONTINUE UNTILTHE STRESS OR IS RELIEVED .
DID SHE TESTIFY AS TO ACTUALLY THE STATUTORY MITIGATOR OR ARE YOU ARGUING THE NONSTATUTORY MITIGATION?
BOTH. I M E AN, I AM ARGUING BOTH , BECAUSE THE STATUTORY MITIGATOR WAS SOMETH ING THAT WAS PRES ENTED.
DIDN'T SHE , HERSELF , STOP SHORT AND SAID THAT SHE DOUBTED THAT THIS WAS AN EXTREME , IN OTHER WORDS, IN TERMS , HELP US WITH THAT. THAT I S BEING CANDID ABOUT WHAT HER TESTIM ONY WAS , THERE IS N O TESTIMONY FR OM HER, HERE , THAT THESE TWO STATUTORY MENTAL MITIGA TORS EXISTED IN HER OPINION , IS THERE?
NO, YOUR HONOR. THERE IS NO DIRECT TESTIMONY THAT SHE FELT THAT THIS WASWHAT CA USED HIM T O D O THIS. IT WAS NOT --
ORDINARILY WITH THE MENTAL HEALTH EXPERT IN ADEATH PENALTY PROCEEDING , THEY WILL BE VERY SPECIFIC , IF THEY BELIEVE THAT THOSE STA TUTORY MITIGATORS EXIST , AND SHE STOPPED SHORT OF THAT, DID SHE NOT?
WELL , SHE STOPPED SHORT OF IT , BUT I DON'T THINKTHAT IT WAS SOMETHING THAT YOU COULD SAY THAT THEY WOULDN'T A FFECT A JURY'S CONSIDERATION , NOT ONLY OF WHETHER --
HOW DO WE KNOW THAT HE WOULD HAVE EVEN DISCLOSED TO ANOTHER MENTAL HEALTH EXPERT , HIS HOMOSEXUALITY OR THESE THINGS, S INCE HE DIDN'T DISCLOSE IT UNTIL AF TER SEVERAL YE ARS BEING IN PRISON? HOW DO WE KNOW THAT HE WOULD HAVE DISCLOSED IT?
I THINK THAT , DR . HABER BELIEVES, AND I THINK A LOT OF PSYCHOLOGISTS AND FORENSIC PSYCHOLOGISTS , BELIEVE THAT, WITH THE RIGHT TRAINING, YOU CAN BRING THINGS OUT IN PEOPLE. OBVIOUSLY THERE IS NO GUARANTEE 1 00 PERCENT THAT HE WOULD HAVE DISCLOSED IT , BUT I THINK IF HE WOULD HAVE HAD , IN THE TWO OR THREE YEARS THAT HE WAS PENDINGTRIAL IN THESE CASES , SOMEBODY TO REALLY SIT DO WN AND TALK WITH HIM ABOUT WHAT WAS GOING ON --
LET ME ASK YOU AQUESTION. WHAT EVIDENCE OF HIS HOME SEXIALITY WAS PRESENTED , OTHER THAN HIS SELF REPORTING? DID HIS MOTHER TESTIFY TO HIS PROSTITUTING HIM SELF OUT AND USING MULTIPLE DRUGS?
NO. SHE DID NOT. HIS BR OTHER DID T E LL DR . HABER THAT HE HAD SEEN HIM DRESSED IN W O MEN'S CLOTHING SNEAKING OUT OF THE HOUSE IN THE MIDD LE OF THE NIGHT , AND THAT WAS SOMETHING THAT WAS NOT DISC USSED D URING , B E FORE THE TRIAL , BUT IT WASSOMETHING THAT DR. HABER DID RELY UPON , TO SHOW SOME CORROBORATION FOR HIS STATEMENTS THAT HE WAS HOME SEX YUL -- HOME SEX YUL .
DO CTOR HABER DIDN'T INDICATE IT?
NO , BUT SHE BASED HER OPINION PARTLY ON WHAT THE BROTHER HAD TOLD HER.
THE POLICE RE PORTS AND THE HIRE FOR MURDER, ET C ETERA , D ID SHE HAVE THOSEREPORTS TO BE ABLE TO BALANCE HER OPINION?
THAT WAS A MATTER OF INTERESTING TESTIMONY DURING THE EVIDENTI ARY HEAR ING. SHE WAS GI VEN A MEMORANDUM , A DESCRI PTION OF WHAT HAD HAPPENED AND WHAT HE, WHAT, YOU KNOW, WHAT THE CASE WAS, AND THERE WAS SOME REPORTS THERE , BUT SHE DID NOT READ EVERY DEPOSITION. SHE DID NOT READ EVERY POLICE REPO RT. SHE DIDN'T THINK THAT , OTHER THAN THE BARE BO NES KNOWING, A S YOU HAVE EXPLAINED, THAT IT WAS A MURDER-FOR-HIRE, THAT THE FACTS OF THE CASE , REALLY , CONT AINED ANY INFORMATION THAT WOULD HAVE DISPUTED HER CONCLUSIONS AS FAR AS PERSONALITY.
THIS WAS TWO MURDERS FOR HIRE, CORRECT?
THAT'S CORRECT.
AND E AC H ONE, THE ONE MURDER WAS US ED AS AGGRAVATION IN THE OTH ER? IS THAT WHAT HAPPENED IN THIS CASE?
YES.
SO WE ARE FACED HERE, WITH A DEFE NDANT WHO WAS CONVICTED OF FIRST-DEGREE MURDER, H AD A PR IOR CONVICTION OF A FIRST-DEGREE MURDER , ALL FOR HIRE , FOR PECUNIARY GAIN , BASICALLY , AND BASICALLY NO REAL MENTAL HEALTH PRO BLEMS . THERE WAS NO PRIOR RECORDS OF ANY MENTAL HEALTH ISSUES , WERE THERE?
NO , NOT THAT WAS MADE A WARE FOR ANYBODY .
WERE N'T THERE ACTUALLY , WASN'T THERE, ALSO, AN ATTEMPTED MURDER ON MARSHAL KING THAT WAS ANOTHER MURDER-FOR-HIRE ?
THAT'S CORR ECT. THAT'S CORRECT. AND THAT WAS, ALSO , AN AGGRAVATOR THAT WAS PRESENTED AT THE TIME OF THE PENALTY PHASE.
LET ME ASK Y O U A DIFFERENT QUESTION, B EFORE YOU SIT DOWN , AND THAT IS , T HERE WERE TWO SEPARATE POSTCONVICTION MOTIONS FOR E ACH MURDER CASE , IS THAT CORRECT?
TH AT'S CORRECT.
ARE YOU CLAIMING , THAT I N O NE OF THE CASES , THAT THE TRIAL COURT FA ILED TO R ULE ON A N UMBER OF ISSUES THAT YOU RAISED IN THE MOTION
I AM NOT SURE, THE ORIGINAL TRIAL COURT?
KNOW THE TRIAL COURT IN THE POSTCONVICTION MOTIONS. YOU POINTED OUT IN THE ORIGINAL BRIEFING THAT THE JUDGE SAID HE WAS GOING TO RULE ON SOMETHING BUT L ATER , THERE WAS NO MENTION AFTER PARTICULAR ISSUE. I AM ASK ING IF YOU ARE MAKING A CLAIM HERE THAT THEJUDGE FAILED TO RULE ON A NUMBER OF ISSUES RA ISED IN ONE OF THE CASES.
THERE WAS AN ISSUE CONCERNING THE REFERRAL , WHERE I HAD ORIGINALLY PRESENTED A MOTION C ITING C ASES INVOLVING INTE RNS TRYING CASES, AND THE JUDGE C ITED THOSE CASES, EVEN THOUGH THEY HAD BEEN DISCARDED .
LET ME BE MORE SPECIFIC, OKAY, BE CAUSE THE MOTIONS A PPEAR TO BE AM ENDED , AND IF I RECALL, ONE OF THE CASES, IT WE NT TO THE TRIAL COURT ON THE SE COND AMENDED MOTION FOR POST-CONVICTION R E LIEF . AND SO WHAT I AM ASKING YOU IS, ARE YOU MAKING ANY CLAIM THAT THE TRIAL COURT FAILED TO RULE ON THE ISSUES THAT YOU RAISED IN THE SECOND A MENDED MOTION? BUT INST EAD RULED ON AN EARLIER VER SION OF YOUR MOTION?
YES .
WELL , TELL ME WHAT YOU ARE CLAIMING. I SEEM TO BE HAVING DIFFICULTY.
I AM SO RRY .
COMMUNICATING MY CONC ERN . YOUR CLAIM HERE.
I THINK WHAT YOU ARETALKING ABOUT IS WHAT I REFER TO AS THE ILLEGALREFERRAL FROM MR . HUTTO.
THERE WAS ONE ISSUE?
THERE WAS ONE MA JO R ISSUE , WHERE HE USED AS THE BASIS FOR DENYIN G IT , THE ORIGINAL CASES THAT I USED TO BAC K THAT ISSUE UP , AND THEN I ABANDONED THOSE CASES AND FOUND OTHER CASES THAT HEDID NOT AD DRESS IN HIS ORDER. WE WERE DENIED AN EVIDENTIARY HEARING .
CHIEF JUSTICE: JUSTICE CANTERO HAS A QUESTION.
YOU WERE GOING TO ADDRESS ISSUE N UMBER TWO AND THE SUBSTITUTION OF COUNSEL. MY QUES TIONS ARE , NUMBER ONE, DID HE OBJECT TO THE SUBSTITUTION, AND NUMBER TWO , DID HE HAVE DI FFERENT COUNSEL ON APPEAL , AND ISN'T THIS SOMETHING THAT HE SHOULD HAVE RAISED ON AP PEAL FROM HIS CON VICTION?
THE AN SWER WAS THAT T HEREWAS NO , THERE WAS N EVER ANY COLLOQUY OR ANY OBJECTIONTHAT WAS MADE.THE COURT NEVER SEEM ED TO O B. NOBODY SEEMED TO BE CONCERNED THAT MR. BODINI SUDDENLY APPEARED ON BE HALF O F MR . HUTTO.
MY QUESTION IS , DID THE DEFENDANT OBJECT TO MR . B ODINI OR ANYBODY ELSE , THATHE DID NOT WANT SUBSTITUTION OF COUNSEL , THAT HE WAS VERY CONTENT WITH HIS FIRST COUNSEL AND HE DIDN'T WANT HIM TO CHANGE. DID HE EVER EXPRESS THAT TO ANYBODY?
H E NEVER VOLUNTEERED THAT,NO.
DID HE HAVE DIF FERENT COUNSEL ON APPEAL IN CONVICTION?
YES.
AND IS THIS SOMETHING THAT SHOULD HAVE BEEN RAISED ON APPEAL FROM THE CONVICTION? ISN'T THAT A PROCEDURE --
I DON'T THINK THERE SHOULD HAVE BEEN FOR TWOREASONS. ONE IS THAT THE BE BEHIND THE -- IS THAT THE BEHIND THE SCENES ISSUE OF HOW THIS MATTER CAME ABOUT WITH REFERRAL IS NOT SOMETHINGTHAT WAS ON THE RECORD, AND THE SECOND REA SON IS THAT I DON'T THINK THAT WAS PART OF SYSTEM AT THAT TI ME, AND I THINK IT WAS ASKING A LOT FOR MR . LAPINSKI TO HAVE R AISED THAT ISSUE ON DIRECT DIRECT APPEAL.
IT WASN'T ON THE RECORD BECAUSE HE DIDN'T OBJECT , BUT ISN'T THE IMPROPER SUBSTX INSTIT UTION OF COUNSEL -- THE IMPROPER SUBSTITUTION OF COUNSELSOMETHING THAT SHOULD BE RAISED ON APPEAL , NOTSOMETHING FOR COLLATERAL RELIEF?
I DON'T THINK THAT THE VERY N AME THAT APPEARS AS SUBSTITUTION, WOULD BE PROPERLY BE FORE THE COURT , UNLESS THERE WAS SOME UNDERSTANDING OR REASON AS TO EXACTLY WHAT BROUGHT THAT ABOUT, WHICH WOULD HAVE TO HAPPEN DU RING COLLATERAL PROCEEDINGS.
SO IT IS YOUR VIEW , YOU ARE NOT ASSERTING A PER SE REVERSAL, W ITH RE GARD T O SUBSTITUTION, BUT YOUR POSITION IS THAT THE SUBSTITUTION OR EXCHANGE SHOULD BE EXPL ORED IN AN EVIDENTIARY HEARING?
THAT'S CORRECT.
AND WHAT WOULD BE THE NATURE OF THAT HEARING? FOR EXAMPLE WOULD THEY GO IN AND PRESENT TESTIMONY THAT MR. HUTO WAS A FORMER CIRCUIT JUDGE AT THE END OF HIS CAREER AND MR . BODINI WAS A YOUNG UPCOMING LAWYER? WHAT WOULD BE THE NATURE?I AM TRYING TO UNDER STAND WHAT KIND OF MINITRIAL WOULD YOU HAVE ON THIS ISSUE?
I THINK THE BUSINESS RELATIONSHIP BETWEEN MR . HUTTO AND MR . BODINI WOULDBE APPROPRIATELY EXPL ORED. I THINK THE SPLIT OF FEES THAT WERE GOING TO BE RECEIVED.
WHAT WOULD THAT H AVE T O DO NECESSARILY, THOUGH, WITH THE MANNER IN WHICH THE ACCUSED WAS REPRESENTED IN THE CASE?
BECAUSE I THINK THAT YOU WERE ALREADY TA LKING ABOUT $40 AND $5 0 AN HOUR FOR O UTOF COURT AND IN-COURT TIME AND NOW YOU ARE S P LITTING THAT ALMOST IN HALF.I THINK YOU ARE REALL Y C REATING A CONFLICT HERE , WHEREFORE MR . HUTTO IT IS LIKE GRAVY. HE GETS HIS MO NEY AND DOESN'T HAVE TO DO ANYTHING , AND HE GIVES THE CASE TO SOMEBODY THAT MAY NOT BE QUALIFIED , AND I THINK THAT HAS TO BE EXPLORED.
DIDN'T THE ISSUE GO BACK TO WHERE WE WOULD HAVE TO EXPLORE THAT MR . BODINI WAS INEFFECTIVE IN THE AS PECT OF REPRESENTATION, WHE N YOU HAVE RAISED SOME ISSUES WHERE HE , BUT THE VERY FACT OF THE RE FERRAL , DO ESN'T REALLY CHANGE WHE THER MR . BODINI IS O R IS NOT EFFECTIVE.
WELL , I THINK THAT THERE , AND I SUGGESTED THIS IN MY PLEADINGS , THAT THERE SHOULD BE A MIDDLE GROUND. THERE SHOULD BE , I ME AN, PRESUMABLY , THEATCHRIRX YOU COULD HAVE SOMEBODY WHO GETS A CASE AND REFER S IT TO THE NEXT ROY BLACK , AND THE PERSON IS BETTER REPRESENTED , BUT I THINK THAT THERE HAS TO BE SOME EVALUATION , SOME BALANCING OVER EXACTLY WHY THAT REFE RRAL, WHET HER IT IS TO A SUPERIOR ATTORNEY OR TOAN ATTORNEY WITH LESS EXPERIENCE, AND IF IT IS GOING TO BE AN ATTO RNEY OF LESS EXPERI ENCE, THEN IT SHOULDN'T BE , IT SHOULDN'T BE ALLOWED, BEC AUSE THE JUDGE IS SUPPOSED TO MAKETHE DETER MINATION , W HEN HE MAKES THE APPOINTMENT, THAT HE IS PROVIDING AN ATTORNEY W ITH THE REQUIS ITE EXPERIENCE AND KNOWLEDGE TO BE AB LE TO PROPERLY DE FENDTHE CASE.
DID YOU AL LEGE THAT IN YOUR MOTION , THAT IT WAS AN A TTORNEY WITH LESS EXPERIENCE OR COMPETENCE?
I BELIEVE I DID .
LET ME JUST MAKE SURE , RIGHT NO W SO YOU UNDERSTAND, THE LIGH T IS RED, WHICH JUST MEANS YOU HAVE USED 20 MINUTES. IS THAT WHAT IT MEANS ? S INCE WE ARE GOING TO GIVE YOU 30 MINUTES, NOW, YOU WOULD BE INTO YOUR REBUTTAL , BUT CONTIN UE , BECAUSE ITHINK IF YOU T AKE AN OTHER COUPLE OF MINU TES, AND THEN YOU CAN SAVE THE REST FOR REBUTTAL.
I WOULD LI KE TO YOU ADDRESS THE ISSUE THAT YOU RAISED HERE , A BOUT , THE SUPPRESSION ISSUE , AND I AM NOT QUITE ASSURE IUNDERSTAND YOUR ARGUMENT ABOUT THE ADMINISTERING AN O ATH MEANS THAT HE WAS COMPELLED TO MAKE THE STA TEMENT THAT H E MADE.
YES. THE BRAN CASE GOES INTO GREAT DETAIL AS REGARDS THAT MOTION.
AS I UNDE RSTAND , HE VOLUNTARILY WENT TO THE POLICE STATION , DID HE NOT , TO THE POLICE STATION AND MADE STATEMENTS, THAT CORRECT?
THAT'S CORRECT.
AND THEN WHAT EVER THIS OATH WAS THEN ADMINISTERED AT THE PO INT WHERE HE WAS GOING TO, THEY WERE ACTUALLY GOING TO MAKE A RECORDING OF HIS STATEMENT.HE HAD ALREADY MADE HIS CONFESSION AT THAT POINT? BEFORE THAT ?
I RECALL , AND MY RECOLLECTION OF THE RECORD WAS THAT, WHEN HE WAS ADMINISTERED, BEFORE HE WAS ADMINISTERED HIS MIRANDA RIGHTS, HE WAS PUT UNDEROATH. I BEL IEVE THAT IS WHAT HAPPENED.
WHEN HE FIRST GOT TO THE POLICE STATION.
RIGHT. THEY ADMINISTERED , THEY PUT HIM UNDER OATH , AND THEN THEY ADMINISTERED THE MIRANDA RIGHTS. THAT IS WHAT MY UNDERSTANDING OF WHAT THERECORD WAS. IF, YOU KNOW , I M A Y BE , THAT IS MY RECOLLECTION .
NOW, THE REST OF THE ISSUES THAT YOU HAVE RAISED FOR BOTH CASES , ALL WERE SUMMARILY DE NIED , AND SO WHAT YOU WOULD ASK US TO DO FOR EACH OF THOSE ISSUES ISSEE IF THERE I S ANYTHING THAT HAS BEEN PLED THAT , REALLY , WOULD WARRANT AN EVIDENTIARY HEARING. IN YOUR FEW MINUTES REMAINING, IS THERE ANY ISSUE WHERE YOU THINK THAT YOU CAN REALLY POINT OUT TO US WHERE AN EVIDENTIARY HEARING WOULD PRODUCE SOMETHING DIFFERENT THAN JUST L O OKING AT THE RECORD TELLS US? AND YOU KNOW , ESPECIALLY SOME OF YOUR VOIR DIRE ISSUES, WHERE YOU TALK ABOUT CHALLENGES FOR CAUSE , BUT YET THERE IS RE MAIN ING PREEMPTORY CHALLENGES , SO EVEN IF THE JU RO R WAS SUCCESSFULLY CHALLENGED FORCAUSE , THE STATE ST IL L COULD HAVE STRUCK A JUROR OR TWO , SO ANYTHING IN THOSE MA NY ISSUES THAT YOU REALLY , STANDS OUT A S CRYING OUT FORAN EVIDEN TIARY HEARING?
I THINK THE RECORD AS A WHOLE, INDI CATES THAT MR . BODINI WAS VERY DEFICIENT ON ALL DEATH PENALTY ISSUES , BUT I THINK WHERE H E WAS DEFICIENT THE MOST , OTHER THAN WHAT WE HAVE ALRE ADY DISCUSSED , HAS TO DO WITH THE DEATH QUALIFICATION PORTION OF VOIR DIRE. HE BASICALLY DID NOT PARTICIPATE IN THE QUESTIONING OF THE JURY ABOUT WHAT THEY FELT ABOUT THE DEATH PENALTY, IN TE RMS OF PE OPLE WHO DO EX IST OUT THERE, AND WHO , YOU KNOW , HAVE TO BE IDENTIFIED BY ANY COMPETENT DEFENSE LAWYER WHO BELIEVE THAT DEATH IS ALWAYS THE PROPER PENALTY FOR ANY MURDER CASE , ANY FIRST-DEGREE MURDER CASE. NONE OF THOSE QUESTIONS WERE BROUGHT UP. IN ONE CASE, HE TALKED ABOUT EIGHT PA GES OF THETRANSCRIPT, TALKING ABOUT COLORS AND HOW AGGRAVATORS ARE LIKE COLORS, AND IN THESECOND CASE , THE LAWRENCE C ASE, HE DIDN'T SAY ANYTHING AT ALL.
DIDN'T THE COURT AC TUALLY QUESTION THE JU RORS ABOUT THEIR , WHETHER OR NOT THEY COULD, IN FACT , I M POSE THE DEATH PENALTY , AND PERSONS WHO SAID THAT THEY WOULD I MPOSE IT, ALWAYS , BECAUSE OF THEIR BELI EF, WERE EXCUSED ?
I BELIEVE THAT, I RECALL , AND, AGAIN, IF THE RE CORD I S DIFFERENT , BUT MY RECOLLECTION IS THAT I DON'T THINK ANYBODY WAS EX CUSED BECAUSE THEY BELIEVED THAT THE DEATH PENALTY SHOULD BE IMPOSEED IN ALL INSTANCES. PEOPLE WERE EXCUSED BECAUSE THEY BELIEVED THAT THE DEATH PENALTY SHOULDN'T BE IMPOSED . I THINK THERE WAS A LOT OF PEOPLE WHO DIDN'T BELIEVE IN THE DEATH PENALTY , WHO WERE EXC USED. I DON'T RECALL ANYONE --
SO THAT, BUT THEQUESTIONS WERE ASKED.I MEAN , AND I G UESS YOU HAVEN'T ANSWERED THE QUESTION, IS WHAT WOULD A N EVIDENTIARY HEARING PROD UCE , OTHER THAN OUR BEING ABLE TO LOOK AT THE TRANSCRIPT OF THE VOIR DIRE, TO SEE IF THIS WAS A DEFI CIENT LY DEFICIENT VOIR DIRE , THAT WOULD RI SE TO THE LE VEL OF A SIXTH AMENDMENT VIOL ATION FOR YOUR CL IENT.
WELL , I THINK IT I S DEF ICIENT, AND I THINK THAT THE QUESTION WOULD COME TO MR. BODINI AS TO WHY HE DIDN'T FEEL THAT, IN ADEATH-PENALTY CASE , THAT HE WOULD ASK ANY QUES TIONS AT ALL ABOUT THOSE JURO RS WHO WOULD VOTE FOR DEATH, NO MATTER WHAT , AS L O NG AS THE PERSON , DEF ENDANT WAS CONVICTED EVER FIRST-DEGREE MURDER. THANK YOU. -.
MAY IT PLEASE THE COURT. S ANDRA JAGG ARD ON BEHALF OF THE CASE. MAKE STARTING OFF WITH THE LAST QUESTION , THE STATE AND COURT ASKED ABOUT VIEWS OF THE DEATH PENALTY , BOTH FOR AND AGAIN ST AND MS. MOSE WAS SOMEONE THAT AUTOMATICALLY IDENTIFIED TO IMPOSE THEDEATH PENALTY AND WAS THEREAFTER EXCUSED FOR CAUSE, B ASED UPON THE DEATH PENALTY , AND SO THOSE WERE QUESTIONS FOR CAUS E AND THAT IS THERE FOR NOT --
COULD YOU ANSWER THEQUESTIONS I HAVE , BECAUSE I SAW MORE THAN ONCE IN THE BRIEFING, A CLAI M THAT THE TRIAL JUDG E MAY NOT HAVE RULED IN ONE OF THE CASES. O N ALL OF THE ISSUES RAISED IN THE SECOND AME NDED MOTION , AND THAT INS TEAD HE APPEARED TO BE RU LING ON THE MOTION IMMEDIATELY PRECEDING THE SECOND AMENDED MOTION , AND HELP ME WITH THAT. DO WE HAVE ANY K IN D OF A PROBLEM HERE OF LOOSE ENDS THAT, PERHAPS , WE NEED TO ASK THE TRI AL JUDGE , TO BE CERTAIN THAT HE HAS RULED ON ALL OF THE ISSUES RAISED IN THE SECOND AMENDED MOTION?
THE CLAIM IS NOT THAT HEDID NOT RULE. THE CLAIM IS THAT HE RULED UNDER THE FIRST LE GAL THEORY ON THE CLAIM REGARDING SUBSTITUTION. AND NOT ON THE SECOND LEGAL THEORY OF THE CLAIM REGARDING SUBSTITUTION. BUT THE CLAIM REGARDING SUBSTITUTION, HAS NO MERIT. IT IS A STRICKLAND CLAIM. THERE WAS NE VER ANY PREJUDICE PLED. AND THERE WAS NOTHING TO HAVE AN EVIDENTIARY HEARING UNDER E ITHER LEGAL THEORY , BUT THE CLAIM WAS RULED UPON. IT IS JUST A QUESTION OF WHICH LEGAL THEORY.
EXPLORE THIS ISSUE ABOUT THE SUBSTITUTION OF COUN SEL , FOR INSTANCE. THIS IS A TROUBLING AS PECT OF THE CASE THAT , WITH OUT ANY COURT ORDER THAT THE ORIGINAL LAW YER WHO WAS DISQUALIFIED F ROM THE CASE , WHAT WERE THE CIRCUMSTANCES OF HIM COMING OFF THE CASE? ANOTHER CIRCUM STANCES WERETHAT HE WAS APPOINTED AND HE REFERRED THE CASE TO MR . BODINI, WHO APPARENTLY WORKED WITH HIM. MR . BODINI HAD --
HELP ME WITH THAT, IN TERMS OF THE ABILITY OF AN APPOINTED LAWY ER, NOW , TO JUST GIVE THE CASE TO SOMEBODY ELSE. AND I DON'T SEE ANYINDICATION OF IT I N THIS CASE, AT LEAST SUPERFICIAL LY RIGHT NOW , BUT IT SEEMS LIKE THERE IS VERY SERIOUS POTENTIAL PROBLEMS THERE , IF ONE LAWYER , THE JUDGE SAYS , WELL , I AM GOING TO APPOINT THIS LAWYER.THE LAWYER HAS GOT 25 YEARS' EXPERIENCE IN CRIMINAL DEFENSE.HE HAS HA NDLED A DO ZEN DEATH PENALTY CASES , AND HE IS VERY HI GHLY REGA RDED IN THE COMMUNITY OUT THERE, AND HE IS WILLING TO TAKE THE CASE , AND HE G ETS APPOINTED, ANDTHEN HE SAYS , I DON'T WANT THIS CASE , AND I AM HIM GOING TO, THERE IS A YOUNG LAURIE KNOW IN THE SAME BUILDING OR ON THE SAME F LOOR. HE NEEDS THE WORK. ILL JUST G IV E THIS TO HIM -- I WILL JUST GIVE THIS TO HIM , AND THAT IS WHAT HA PPENS. ISN'T THERE A SERIOUSPROBLEM WITH THAT?
AT THE TIME, NO , THEREWAS NOTHING I LLEGAL OR APROBLEM WITH THAT, ANDUNLESS YOU MEET THE BURDEN OF STRICKLAND , THEN THERE IS NO PROB LEM WITH THAT.
IF WE HAVE AN APPOIN TMENT PROCESS , WHICH HOPEFULLY IS BASED ON A TRIAL JUDGE THINKING ABOUT HAVING A VERY WELL-QUALIFIED LAWYER REPRESENT A DEFENDANT IN ADEATH-PENALTY CASE , AND I , WHEN YOU SAY THERE IS NO PROBLEM WITH IT , I WOULD BEG TO DI FFER, THAT I SEE A VERY SERIOUS PROBLEM , I F THE TRIAL JUDGE NEVER HAS ANY INPUT IN THE SELECTION OF THIS LAWYER TO BE SURE THELAWYER IS WELL-QUALIFIED , TO HANDLE SU CH A CASE , AND SO WHY IS THERE NO PROBLE M?
BECAUSE IN MOR RIS VER SUS SLAPPY, THE UN ITED STATES SUPREME COURT SAID THERE ISNO PROBLEM UNLESS YOU MEET THE BURDEN OF STRICKLAND. AT THIS POINT T O DAY , YOU COULDN'T DO IT. THERE IS A STAT UTE THAT FORBIDS IT , BUT AT THE T IME THIS CASE WAS BEING TRIED, THERE WAS NO PROBLEM WITH IT , AND THE DEFENDANT HAS NOT MET HIS VEHICLE LAND BURDEN . -- HIS STRICK LAND BURD EN.
WAS THERE AC TUALLY A SUBSTITUTION OR JUST AN ADDITION ?
WAS THERE A SUBSTITUTION?
THERE WAS NEVER A SUBSTITUTION .
DID MR . H UT' ACTUALLY WORK ON THE CASE ?
MR . HU TTO GOT THE CASE . MR. BODINI DID ALL OF THE WORK.
THERE IS ANOTHER ASSOCIATION, A CAR, ALSO. WHAT IS THE ASSOCIATION BETWEEN THOSE TH REE ATTORNEYS?
MR . BODINI AND MS. CARR , ACCORDING TO THE MOTION , LEA SED SPACE FROM MR . HUT TO. ACCORDING TO THE EVIDENTIARY HEARING , IT WAS KI ND OF AN ASSOCIATE PARTNERSHIP RELATIONSHIP, AND THEY ST ILL DISCUSSED THIN GS WITH MR . HUTTO.
SO IF WE LOOKED BACK AT THE WHOLE TRANSCRIPT, A JUDGE APPOINTS MR . HUTT O, AND I DON'T KNOW, I SEEM TO RECALL IN THE BRIEFS OR SOMEPLACE THAT, MR. HUTTO EVENTUALLY GOT CAUGHT UP IN O PERATION COURTROOM. IS THAT CORRECT OR NOT?
NO. MR. HUTTO WAS NOT CAU G HT UP IN OPERATION COURTR OOM . THE SYSTEM OF DOING THIS ATTHE TIME, D ADE COUNTY JUDGES JUST P ICKED ATTORNEYS AND APPOINTED THEM .
BUT MR . HUTTO, THEN , WE DON'T KNOW WHY , JUST STOPPED WORKING ON THE CASE, AND THEFIRST TIME MR . BODINI SHOWS UP , WITH ALL OF THE HEARINGS AND THE TRIAL , IS THERE EVER ANY INQU IRY BY THE TRIALCOURT , LIKE , WHERE IS MR . HUTTO OR , ANYT HING AT ALL?
NO , YOUR HO NOR , AND THERE IS NO OBJECTION ABOUT -- THERE IS NO OBJECTION BY THEDEFENDANT TO MR . BODINI REPRESENTING HIM, BEGINNINGAT THE ARRAIGNMENT.
SO AT THE VERY FIRST COURT APPEARANCE BY THE LAWYER, IT WAS MR . BODINI .
MR. BODINI . I DON'T RECALL WHETHER MR. HUTTO EVER SHOWED UP , BUT I KNOW FROM ARRAIGNMENT FORWARD, IT WAS MR . BODINI.
JUSTICE LE WIS .
THE UNDER CURRENT HERE FROM PRAC TICING IN THE COMMUNITY, IS MR . HUTTO W AS A FOR MER CIRCUIT JUDGE , AND THERE WAS A RELATIONSHIP ANDHE WAS G E TTING THE CASES AND HE WAS LE TTING OR BROKERINGTHOSE TO OTHER ATTORNEYS. IS THAT THE UNDER CURRENT OF WHAT WE ARE TALKING ABOUT?
YES.
BUT EVEN THOUGH WE HAVE THAT DISTASTEFUL TOP LAYER , WE STILL HAVE THE PREJUDICE, TO TRY DETERMINE WHE THERTHERE WAS SOME PREJUDICEHERE. COUNSEL SAYS YOU REALLY HAVE IT ALL BU ILT IN, BECAUSEWHAT IT AMOUNTS TO IS THIS DIVISION OF FEES , THA T YOU HAVE LAWYERS COMING IN, WORKING FOR LESS THAN ADEQUATE PAY TO DO THESECASES , AND THAT LE ADS TO INADEQUATE REPRESENTATION. THAT SEEMS TO BE THE THING. WHAT IS YOUR RESPONSE TO THAT KIND OF --
MY RESPONSE IS THAT IN M ICKENS VERSUS TAYLOR , THECOURT SAID THAT THE AMO UNT OF FEES DOES NOT DIRECTLY REFLECT AMOUNT O F INTEREST THAT HE IS CLAIMING. THE CONFLICT OF INT EREST REPRESENTING MULTIPLE DEFENDANTS IN A SINGLE TRIAL.THAT DID NOT HAPPEN HERE.
SHOULD WE CHANGE OUR V IEW AS TO PREJUDICE AT ALL , ANDLOOK AT THE CIRCUMSTANCES THAT LED TO THIS REPRESENTATION? SHOULD IT IN SOME WAY ALTER THE EVALUATION PROCESS IN ANY WAY AND IF NOT, WHY NOT?
NO, IT SHOULD NOT , BECAUSE THE U.S. SUPREME COURT IN MORRIS SAID YOU GO UNDER STRICKLAND, AND UNDER STRICKLAND THERE WAS NO PREJUDICE IN THIS CASE FOR ANY OF THE CLAIMS.
ON THE FIRST ISSUE , WH ICH THERE WAS AN EVIDENTIARY HEARING ON , THE LAWYER WAS QUESTIONED ABOUT WHY HE DID N'T DO CERTAIN THINGS ANDDID OTHER THINGS , AND WAS THERE ANY CROSS-EXAMINATION OR DIRE CTION ABOUT, I MEAN -- O R DIRECT EXAMINATION A BOUT, I MEAN , I DON'T THINKTHERE WOULD BE ANYTHING TO RESTRICT THAT SUBJECT THAT HE DIDN'T DO AS MUCH BECAUSE HE WASN'T GET TING PA ID AS MUCH. OR IS THERE ANYTHING LIKE THAT? I GUESS THERE WOULD BE NOTHING TO HAVE PREVENTEDTHAT LI NE OF INQUIRY .
NOT THAT I AM A WARE OF , AND THERE CERTAINLY WASN'T ANY QUESTIONS ABOUT IT. THE ONLY ISSUE WAS HE HAD HIM EVAL UATED . THE EVAL UATION OCCURRED BETWEEN THE GUILT AND P ENALTY PHASE IN THE LA RK I KNOW TRIAL, WHICH IS -- IN THE LAR KINS TRIAL, WHICH IS THE FIRST OF THE MURDERS TO G O TO TRIAL.
YOU HAD HIM EVALUATEDWITH AN UN PAID EVALUATION,IS THAT CORR ECT?
ACCORDING TO MR . BODINI , DR . MI LLER AG REED TO DO THIS PRO BONO FOR HIM.
IS N'T THAT A SER IOUS ISSUE, ALL BY ITSELF ? FIRST WE HAVE A LAWYER APPOINTED THAT IS ACTING NOW AS A BROKER THAT APPARENTLY GETS FEES BUT THEN HAS ANOTHER LAWYER GET A PART O F THE FEE, FOR ACTUALLY DOING THE WORK IN THE CASE . WE HAVE THE OTHER LAWYER , NOW , THAT IS GETTING SOME , I ASSUME LESSER FEE, SI NCE WE HAVE A BROKER THAT IS ACTING AND GETTING THE M AIN FEE , AND THAT LESSER FEE LAWYER , NOW , INSTEAD OF HIRING OR HAVING THE COURT APPOINTSOMEBODY TO DO A M E NTAL HEALTH EVALUATION , ACTUALLY HAS THIS EVALUATION DONE WHICH WE HAVE NO RECORD OF. WE HAVE NO REPOR T OR ANYTHING LIKE THAT , AND IT IS DONE , DE SAY A S A FAVOR? IS THAT WHAT --
HE SAID -- DID HE SAY AS A FAVOR?
HE SAID IT WAS DONE AS FAVOR TO HIM. Y ES.
ISN'T , AREN'T SOME OF THESE THINGS STA RTING TO ADD UP TO S MELL A LI TTLE B IT OR TO G I VE A BAD O DOR TO WHATWAS GOING ON IN DADE COUNTY AT THE TIME AND SPECIFICALLY IN THIS CASE?
NOT UNLESS YOU MEET THE STRICKLAND PREJUDICE PRONGAND THAT IS NOT MET IN THIS CASE.
DID HUTTO GET ANY FEE IN THIS CASE OR IN THESE CASES?
HE ALLEGES THAT HUTTO RECEIVED SOME MUST NOT IF I F ROM THE CASE.
SHOULD N'T WE KNOW? -- SOME MO NEY FROM THE CASE.
SHOULDN'T WE KNOW?
NO , BECAUSE YOU HAVE T O M EET THE STRICKLAND CASE AND MORRIS, AND IT WASN'T MET.
DOESN'T THE LAWYER ATSOME POINT , FILE A REQUEST FOR PA YMENT , AND SO WE SHOULD AT LEAST HAVE SOME K IND OF PLEADING TO THAT EFFECT, SHOWING WHAT HO URS WERE CLAIMED AND HOW MUCH THE COUNTY PAID FOR IT, CORRECT ? D O WE HAVE THAT IN THE RECORD?
I DON'T BELIEVE THAT MADE THE RECORD , YOUR HO NOR .
IN THE JUDGE'S ORDER DENYING THE MOTION FOR POST-CONVICTION RELIEF , HE SAID THAT MR . BODINI TESTIFIED , AND HE SAID MR . BODINI STAT ED THAT HE ASKEDDR. MILLTORY EVALUATE THEDEFENDANT AS A FAVOR TO M, AS THE COUNTY HAD RE FUSED TO PAY FOR A SECOND F UL L PSYCHOLOGICAL EVALUATION. IS THERE ANYTHING IN THE RECORD THAT THERE WAS A PRIOR PSYCHOLOGICAL EVALUATION?
NO, YOUR HONOR.
WAS THAT A MISSTATEMENT BY THE TRIAL COURT?
YES. IT WAS JUST DR . MILL ER, ANDAT THE TIME THERE WAS APROBLEM WITH THE COUNTY , PEOPLE BE WI LLING WILLING TO WORK FOR THE COUNTY RATE , AND HE GOT DR. MILL TORY EVALUATE HIM, BUT THERE IS NO MENTAL HEALTH MITIGATION HERE. THE DEFE NDANT HAD TWO DOCTORS EVALUATE HIM FOR THE POSTCONVICTION MOTION . HE WAS FOUN D TO BE OF AVERAGE INTELLIGENCE.HE WAS FOUND TO HAVE NO BRAIN DAMAGE. HE WAS FO UND TO HAVE NO NEUROPSYCHOLOGICAL DIFFICULTIES. HE WAS FOUN D TO HAVE NO MAJOR MENTAL ILLNESS, AND THE ONLY CONDITION THAT WAS FOUND WAS THAT HE SUFFERED FROM THIS ADJUSTMENT DISORDER THAT IS BASED ON THE BE RE EFMENT, WHICH THE SM-3 SAYS YOU ARE NOT SUPPOSED TO COUNT BEREAVEMENT.AND THE HOMOSEXUALITY , WHICH HE DID NOT RE VEAL UN TIL AFTER TRIAL, AND THERE IS NO EVIDENCE THAT HE WO ULD HAVE REVEALED IT BE FORE TRIAL, AND SO YOU ARE BASICALLYLEFT WITH NO MENTAL MITIGATION, EVEN AFTER AN EVIDENTIARY HEARING ON THAT ISSUE .
WHAT WAS THE MOST SERIOUSTHING , I F I CAN USE THAT WORD, THAT DR . HA BE R SAID , THAT SHE BELIEVED HE WAS SUFFERING FROM?
THE ADJUSTMENT DI SORDER , AND IN EXCH ANGE FOR THAT, THE STATE GOT TO BRING OUT THAT ADJU STMENT DIS ORDER DOESN'T REALLY M A TCH WHAT HEDID IN THIS CASE , G O ING OUT AND HIRING HIM SELF OUT , A GAIN AND AGAIN AND AG AIN AS A HIT MAN , BUT THE TEST RESULTS SHOW HE IS ANTISOCIAL AND THAT THAT DOES FIT WITH BEING A HIRED HIT MAN , THAT HE HAS A CRIMINAL HI STORY GOING BA CKTO THE TIME HE IS 14 , WHICH COMES OUT , BECAUSE YOU ARE NOW PUTTING DR . HABER ON. HE HAS NOT BEEN A VERY GOOD BOY IN PRIS ON, WHICH COMESOUT , BECAUSE YOU ARE NOW PUTTING DR. HABER ON, SO NOT ONLY IS THIS VERY MINOR MENTAL MITI GATION, BUT THE STATE GETS TO JUST KILL YOU , WHEN YOU GO THERE. SO THE STATE'S POSITION IS THAT THERE IS ABSOLUTELY NO PREJUDICE IN THIS CASE.WITH REGARD TO THE SUBSTITUTION OF COUNSEL , IT IS STRICTLY A STRICKLAND CLAIM. THERE HAS BEEN NO PRO OF IN THIS CASE, AND THE ALLEGATIONS AND THE MOTION ON THE OTHER CLAIM ARE CONCLUSIVELY REFUTED BY THE RECORD AND FA CIALLY INSUFFICIENT.
THAT SOUNDS LIKE A VERY GOOD AR GUMENT, AND IF THAT WAS WHAT WAS IN THE DEFENSE ATTORNEY'S MIND , AT THE TIME THAT HE DECI DE D NOT TO PUT ON MR . MILLER OR GO FURTHERWITH ANOTHER EVALUATION OF HIM, BUT ON THIS RECORD, HO W DO WE KNOW THAT THE DEFENSE ATTORNEY KN EW THAT ALL OF THESE OTHER THINGS WOULD COME OUT , IF HE TRIED TO PUTMR. MILLER ON THE STAND?
I AM NOT SUGGESTING THAT YOU USE THAT FOR THE DEFICIENCY PRON G. THE DEFICIENCY PRONG IS HE HAD HIM EVALUATED . THE EVALUATION CAME BACK WITH NO MITI GATION. ON THE PREJUD ICE PRONG, YOU HAVE TO LOOK AT NOT ONLY THE GOOD THING THAT IS COME OUT WHEN YOU DO THIS BUT THE BAD THINGS THAT ARE GOING TO COME OUT THAT , IF YOU BRINGTHIS UP , AND W E IGH ALL OF THAT AGAINST THE AGGRAVATION IN THIS CASE. AND THESE ARE MU RDERS FOR HIRE. THEY DID GO IN AND S PRAY UP A LAUNDROMAT AND R ISK THE LIVES OF SEVERAL PEOPLE IN THE LAUNDROMAT. THEY DID GO IN AND SP RAY UP A GROCE RY STORE.
JUSTICE LE WIS HAS A QUESTION.
WITH REGA RD TO THE SUPPRESSION AS PECT AND