SGLOOM LADIES AND GENTLEMEN,THE --.

THE MARSHAL: LADIES ANDGENTLEMEN, THE FLO RI DA SUP RE ME COURT.PLEASE BE SEATED .

CHIE F JUSTICE: THE NEXT CASE ON THIS MORNING'S D OCKE T IS RIECHMANN VERSU S ST AT E OF FLORIDA. THE PARTIES R EA DY? MR. McCLAIN, YOU MAY P RO CEED .

MAY IT P LEASE T HE COURT, MY NAME IS M ARTIN M cCLAIN , I'M H ERE TODAY REPRE SE NTING MR. DIETER RIECHMANN.

CHIEF JUSTICE: DO YOU WANT TO RAISE THE MIC ?

IN H IS A EA L.

CHIEF JUSTICE: HOW D O YOU PRONOUN CE THE NAME?

RIECHMANN. IN HIS AEAL FROM DEN IAL O F 3.850 REL IEF.

CHIEF JUSTICE: WE ARE S TI LL , WE UPH EL D T HE G RANT IN G OF A NEW P ENAL TY P HA SE , COR RE CT?

PENDING T HE O UT CO ME.

CHIEF JUSTICE: SO WE ARE STILL WHERE T HE RE HASN'T BEEN A NEW PENALTY P HA SE JUS T ADDITIONAL ISSUES WERE RAISE D REGARDING WHETHER THERE SHOULD BE A N EW G UI LT O R A T OTALLY NEW TRIAL?

CORRECT. THAT'S WHERE WE ARE AT. AND I INTEND TO FOCUS O N THE FIRST TWO A RGUMENTS IN THE BRIEFS IN M Y R EMAR KS TOD AY , C ERTAINLY I WILL ADDRESS ANYTHING ELSE THAT THE COURT WANTS TO INQUIRE A BOUT . I N T HI S CAS E , M R. R IECH MANN SOUGHT TO PRESENT THE TESTIMONY OF A POLICE OFF IC ER T O T ES TI FY T HA T MR. RIECHMANN'S PROSECUTOR PRE SSURED HIM T O F ABRI CATE A STORY.

CHIEF JUSTICE: NOW, LET'S GO TO WHE N YOU A RE RAI SING T HIS I N THE LAS T COU PL E O F YEARS. I SN'T THIS SOMETHING THAT T HE L AWYE R KNEW BY T HE T IM E H E WENT TO TRI AL B AC K I N T HE 1980'S?

WHAT WAS K NOWN A T THE TIME OF TRIAL WAS THAT THI S P OL IC E OFFICER WAS DEPOS ED O N J UL Y 7TH. DURING THE DEPOSITION, HE INDICATED THAT THERE WAS A FLASHLIGHT THAT WHEN HE INVENTORY !!IED THE CAR THAT HE SEIZED FROM THE T RU NK . THE FLA SHLIGHT HAD BLO OD O N IT. T HIS WAS S IG NIFICANT EVIDENCE IN THE STATE'S C AS E I ND ICATIN G IT WAS I NC ONSIST EN T W IT H M R. RIECHMANN'S STORY THAT HE WAS AT ALL TIMES IN T HE DRIVER'S SEAT.THE NEXT DAY AFTER THE DEPOSITION HE CALLED UP THE DEFENSE ATTORNEY AND INDICATED THAT THAT WAS FAL SE.

CHIEF JUSTICE: SO THAT'S BEFORE THE FIRST T RIAL ? > > HE INDICAT ED , T HOUG H , BECAUSE H E W AS UNDER S USPENSION FOR DRUG U SAGE HIMSELF, THE POL IC E O FF IC ER .

CHIEF JUSTICE: SO WHICH PART IS N EW LY DISCO VERED THEN?

WHO P RE SS UR ED H IM , B ECAUSE A LTHOUGH TOLD THE DEF ENSE ATTORNEY WAS THAT WHAT HE HAD SAID WASN'T TRUE. HE WASN'T CALLED TO T HE WITNESS AT THE TRIAL. HE S IMPLY S AID H E H AD F EL T PRESSURE TO T ESTIFY IN THAT FASHION. HE DID NOT IDENTIFY TO THE DEFENSE ATTORNEY WHO P RESS UR ED HIM.

CHIEF JUSTICE: HYPOTHETICALLY YOU HAVE A N EW TRIAL AND HOW DO YOU T HINK , WHAT EVIDENCE -- HOW DO YOU USE THIS EVIDENCE?

WELL, THIS I S E VIDENCE SHOWING THA T T HE PRO SECU TO R I S WILLING A ND D ID P RESS UR E WITNESSES IN ORDER TO GET T HE M TO GIVE S TA TE ME NT S AGAINST MR. RIECHMANN THAT IMPLICATED HIM .

JUSTICE: WAS T HIS A DMISSIBLE AT A NEW T RI AL ? ARE YOU S AY IN G - - AND T HI S WOULD BE ADMISSI BL E T O S HOW WHAT AGAIN?

WELL, IT WOU LD SHO W W HA T THE P ROSE CUTOR W AS W IL LING T O DO IN O RDER T O GET E VI DENC E BUT IT IS ALSO ADM ISSIBL E BECAUSE A FT ER THI S DEP OS ITIO N IS DONE, AFTER T HE D EF ENSE ATTORNEY IS T OLD WHAT H E H AD SAID WASN'T TRU E , T HE PROSECUTION HAS TO A BAND ON T HE FLASHLIGHT AND DURING THE TRIAL NEW E VIDENC E S URFACE S AND THIS I S T HE SHA WL T HA T W AS ON THE D RIVER' S S EAT A ND T HA T M R. R IECHMANN INDICATED HE WAS SITTING O N AT T HE TIME O F T HE SHOOTING. DURING THE TRIAL, THE STATE DISCLOSED.

JUSTICE: THIS WAS E VI DE NCE NOT USED D URING T HE T RIAL?

THIS EVIDENCE WAS USED DURING THE T RIAL I 'M T ALKING ABOUT NOW.

JUSTICE: THE SHAWL, BUT I 'M TALKING ABOUT THE FLASHLIGHT?

CORRECT. BUT THE POL ICE OFF IC ER D ID A N INVEN TORY AND COLLECT ED BOTH THE FLASHLI GHT AND THE S HA WL FROM THE CAR . H E ALSO INDIC ATES IN HIS AFFIDAVIT THAT HE HAD BEEN PRESSURED BY THE PROSECUTOR REGARDING THE SHA WL T O T ES TI FY FALSELY ABOUT THE S HAWL AS WELL. HE WAS NOT CAL LED. THE SHAWL D IDN'T COME UP IN THE DEPOSITION. THAT WAS NOT DISCUSSED WITH THE DEFENSE ATTORNEY. THE DEFENSE A TTORNEY DIDN'T KNOW THAT, IN FACT , THI S OFFICER WAS ALSO INVOL VED W ITH REFERENCE TO THE SHAWL. THE S HAWL W AS I NTRO DU CE D AT THE TRIAL.

CHIEF JUSTICE: HE DIDN'T KNOW, B UT W HY , I M EA N A GA IN WHAT IS IT T HAT O CCURRED IN THE LAST 2 0 Y EA RS THA T WOU LD HAVE P RE VENT ED T HI S AND T HI S WASN'T RAISED IN THE FIRST 3 .850 E VI DENTIA RY H EARING .

O FF ICER VES KI D ID N' T T EL L ANYBODY UNTIL 1 997 THA T H E HAD BEEN PRE SS URED B Y BET H S RE ENAN TO FAB RI CA TE H IS TES TIMO NY A ND HE INDICATED NOT O NLY H AD H E BEEN PRESSURED REGARDING THE FLASHLIGHT.

CHIEF JUSTICE: BUT HE DIDN'T TESTIFY.

CORRECT.

CHIEF JUSTICE: SO HOW DOE S THAT U NDERMINE THE I NT EGRITY OF THE TRIAL?

BECAUSE I WAS EXP LAININ G THE STATE INTRODUCED EVIDENCE THERE WAS BLOOD O N THE SHAWL , AND T HAT , COR KED TO T HE STATE , PROVED THAT MR. R IECH MANN WAS NOT SITTING ON THE SHAWL AT THE TIME THAT T HE GUN WAS FIRED. AND T HAT BLOOD S PATTER ED F ROM THE VICTIM ON T O T HE S HA WL BECAUSE HE WASN'T T HERE. HOWEVER , OFF IC ER VES KI S AI D T HE SHAWL WHEN H E S EIZE D I T TWO DAYS AFTER THE SHO OT ING WAS LYING IN T HE PASSE NG ER SEAT IN BLOOD A ND T HE BLOOD WAS STILL WET. SO THE SIG NI FI CA NCE OF THE BLOOD ON THE SHAWL IS COMPLETELY D ESTROY ED B Y OFFICER VES KI 'S T ES TI MONY AS TO WHERE HE FOUND THE S HA WL A ND THAT THAT SEA T W AS COV ERED WITH BLOOD AND WAS STILL WET .

JUSTICE: WOULD Y OU CLARIFY FOR ME WHETHER OR NOT YOU WERE CALLING T HIS WITNESS A S A N INDEPENDENT CLAIM WITH REFERENCE TO B RA DY , G IG LI O OR WHETHER OR NOT THIS W AS P AR T OF A LAR GE R C LA IM O N P OST-CONVICTION REL IE F? HELP ME WITH T HAT.

THERE ARE A NUMBE R O F REASONS TO CALL HIM. FIRST OF ALL, IT I S A B RADY-GIGLIO V IO LATION I N REFERENCE TO THE SHAWL. IT WAS NOT D ISCLOS ED THA T T HI S IS THE OFFICER WHO SEI ZED I T AND WHERE IT WAS SEIZED. IN FACT, DUR IN G HIS D EP OSITIO N , H IS INVEN TO RY , HIS N OTES , T HA T SHOW WHERE HE SEIZED IT W ERE MISSING, A ND B ETH SRE EN AN TOL D THE DEFENSE A TT ORNE Y T HE Y A RE LOST. WE CAN'T FIND THEM. WE DON'T KNOW IF THE Y S TILL EXIST. SO THERE I S SIGNI FI CA NT INFORMATION TO IMPEACH T HE STATE'S EVIDENCE REGARDING THE MEANING OF THE SHAWL BUT IT ALSO C OR RO BORA TE S T HE AFFIDAVIT FROM M R. S MYKO WSKI WHERE HE SAYS BET H S REENAN IS THE ONE T HAT TOLD HIM WHA T T O SAY. EVEN THOUGH IT WASN'T T RUE.

JUSTICE: IN TERMS OF THE ISSUES THAT YOU H AD PEN DI NG , POST-CONV ICTION R EL IE F A T T HE TIME OF THE HEA RI NG , W HICH ISS UE OR I SS UE S WER E Y OU I NTENDING T O U SE THE EVI DENC E THAT WOULD BE P RE SE NTED B Y THE OFF ICER IN THE MANNER THAT YOU ARE D ESCRIBING?

BOTH AS E VIDENCE OF A BRADY V IOLATION AS TO O FFIC ER V ES KI , BUT ALSO AS K OR B RES IG NATION OF WHAT MR. S MYKO WSKI SAY S A S T O WHO WAS T EL LING HIM W HAT T O SAY.

JUSTICE: AND YOU D ID SEPAR ATELY A LLEGE AS A S EPARATE CLAIM IN Y OU R POST-CONVICTION M OT IO N A C LA IM , B RADY-GIGLIO C LAIM B ASED O N THE OFFIC ER'S T ESTI MONY OR L ACK?

WELL, FIRST OF ALL LET M E BACK UP JUST TO SORT OF ALS O PUT CONTEXT.

JUSTICE: IT WOULD BE HELPFUL FOR US MAYBE IF YOU WOULD BACK UP I N T ERMS OF ARTICULATING FOR U S I 'V E G OT THIS CLAIM P ENDING , W E H AD A HEA RING, I W ANTE D T O C ALL T HI S O FFICER A ND B ECAU SE I T W AS RELATED TO THIS ISS UE THA T I ALLEGED IN MY M OTIO N , A ND H ER E IS HOW IT WOU LD HAV E IMP AC TED THAT ISSUE OR I SS UES.

OFF ICER V ESKI G AV E A N A FFIDAVIT T O MR. RIE CH MANN 'S C OLLATERAL COUNSEL I N 1 99 7. AT THE TIME THAT THE A FFID AVIT WAS GIVEN, M R. R IECHMA NN 'S PREVIOUS AEAL AND THE STATE'S AEAL OF THE P RI OR 3 .850 W AS PEN DI NG I N T HI S COURT.A MOTION TO HOLD THOSE PROCEEDINGS IN ABEYANCE ANS WER SO THAT MR. VES KI'S INFORMATION COULD B E S UB MITT ED IN THE CIRCUIT C OU RT W AS F ILED IN THIS COURT. THIS COURT DENIE D THA T MOTION AND REFUSED T O HOLD THE PROCEEDINGS IN A BEYA NC E ANS WE R . SO WHEN IT C OU RT FIN ISHE S W IT H THAT 3 .8 50 A EA L AND THE PROCEEDINGS ARE OVER AND JURISDI CTION GOES BACK TO CIRCUIT COURT, A 3 .8 50 I S FILED SO IN THE 3 .850 T HERE I S A C LA IM 3 A ND A C LAIM 4 . B OTH C ON CERN P ROSE CU TORI AL CONDUCT, B RADY -G IGLI O AND T HE Y BOT H CROSS -REFER EN CE EACH OTHER INDICATING T HE FAC TU AL ALLEGATIO NS INCLUDED ELSEWHERE IN THE MOTION ARE INC LU DE D HEREIN.

JUSTICE: DO EITHER ONE O F THEM CITE THIS OFFICER AND T HE RELATIONSHIP WITH THE STATE AND THE PROSECUTOR WITH THE OFFICER?

CLAIM 3 S PECI FI CALL Y FOCUSED ON SMYKOWSKI AND C LAIM 4 FOCUSES O N O TH ER PROSECUTORIAL MISCOND UC T . AND I NC LUDES R EFEREN CE T O VESKI AND V ESKI 'S I ND IC AT IO N THAT HE WAS COE RC ED B Y T HE PROSECU TOR TO LIE . SO E VERYTHING IS I N T HE 3 .850 . THEY ARE T ECHN IC ALLY L IS TE D I N DIFFE RENT CLAIMS BUT THE Y CROSS-REFERENCE EACH OTHER AND INCLUDE IN EACH OTHER T HE FACTUAL ALLEGATIONS FROM EACH OTHER.

SO YOU R C LAIM NOW IS W IT H RELATION TO TRYING TO P ROVE THOSE TWO CLAIM S T HA T T HE COURT E RRED IN NOT A LL OWIN G YOU TO P RESENT THI S O FF IC ER 'S TESTIMONY?

CORRECT. THERE WAS A HEARI NG G RA NTED . THE T RA NS CRIPT F ROM WHEN T HE JUDGE ANNOUNCES W HA T T HE HEARING IS O N , D OE SN 'T EXI ST . T HE PARTIES A RE TOL D O R T HI S DISCU SSION LATER O N BUT THE PARTIES UNDERSTAND T HAT SMYKOWSKI IS WHAT T HE J UDGE HAS GRANTED THE HEARI NG O N , BUT M R. R IE CHMANN 'S COUNS EL ALSO N OT IF IE S AND ENL IS TS OFFICER VESKI AS A W IT NESS . AND S O OFFICER V ES KI I S A W ITNESS. OFFICER VESKI IS N OT GOING T O BE AVAILABLE TO T RA VE L T O MIAMI SO THERE IS A R EQ UEST T O HAVE HIM TESTIFY V IA TEL EP HONE A ND THAT , T HE JUD GE SAYS , WEL L , THE STATE DOESN'T HAVE AN OBJECTION TO THA T I F I T I S ADMIS SIBLE SO W HAT ADD RE SS ES ADMISSIBILITY WHEN WE ARE ACTUALLY IN THE HEARING BUT IT IS OKAY FOR H IM TO AEAR B Y PHONE. SO WHEN HE IS GOING TO BE T HE NEXT WITNESS TO A EA R B Y PHONE, THAT'S WHEN THE STATE OBJECTS ON R ELEV AN CY GRO UN DS TO HIS TES TIMONY S AYING I T IS NOT R ELEVANT TO THE B RA DY CLAIM REGARDING SMYKO WS KI .

JUSTICE: WELL, AND N OW ARTICULATE FOR US HOW IT IS RELEV ANT TO THE BRADY C LA IM RELATING TO THA T O TH ER WITNESS?

IT IS R EL EV AN T , B EC AU SE FIRST O F A LL , A LL O F THE B RADY MATERIAL HAS TO B E EVA LU ATED CUM ULATIVELY S O T O T HE E XTENT THAT THERE HAS - - T HE RE WAS EVIDENCE OF B RADY VIOLA TI ON S AT THE FIR ST 3.8 50 P RO CE ED IN G , I. E. T HE S TA TE H AD RED ACTE D THE POLIC E R EP OR TS A ND N OT DISCLOSED THE POLIC E R EP ORTS , THAT HAS TO B E E VA LUATED WIT H SMYKOWSKI AS WELL AS W HA T VESKI HAS TO SAY. S ECOND IT ALSO IS R EL EVAN T I N TERMS OF THE CREDIBI LITY O F BETH SREENAN. BETH SREENAN T ESTI FI ED BOTH I N 1996 AND IN 200 2 A T T HE EVIDENTIARY HEARING REGARDING THESE MATTERS, AND S HE D EN IE D PRESSURING VESKI AND SHE DENIED PRESSURING SMY KOWSKI . T O THE EXTENT THA T HER CREDIBILITY IS AT I SS UE , W HAT OFFICER VESKI H AS T O SAY I S RELEVANT T O EVA LUAT IN G WHE THER BETH S REENAN I S TELLING THE TRUTH.

JUSTICE: A S YOU WERE MAKING THIS PRESENTATION, YOU INITIALLY, I THOUGHT I UNDERSTOOD YOU TO SAY T HA T THERE WERE SEPARATE AND INDIVIDUAL CLAIMS DIRECTE D TO THE POLICE OFFICER AND W HA T HAD HAENED. BUT THEN IN RESPONSE TO T HIS LAST QUESTION, YOU ARE TALKING ABOUT A HEARI NG T HA T DEALS WITH THE OTHER W ITNE SS .

WELL , THE W AY IT H AD B EE N PLU GGED IS THAT T HERE ARE T WO CLAIM H EADINGS BUT T HE Y A RE BOTH DEALING WITH PROSECUTORIAL MISCOND UCT. SMYKOWSKI IS LISTED IN ONE. BASICALLY THE OTHER ONE IS THE CATCH-ALL FOR EVERYTHING ELSE.

JUSTICE: SO THERE IS NOT A SEPARATE ONE THAT TALKS ABOUT THE POLICE OFFICERS SPECIFICALLY?

THE POLICE ONE IS INC LU DED IN THE ONE THA T I S S ORT O F T HE CATCH-ALL REFERENCING THE FAC T THAT THE AFFIDAVIT H AD BEE N FILED WITH THIS COURT W HILE THE AEAL WAS PENDING . NOW, THE S TA TE'S P OS ITION WIT H REFERENCE TO VESKI WAS THAT THIS COU RT , I T A LS O A EA RE D IN THE STATE HABEA S I N F RONT OF THIS C OURT AND THIS COURT HAD SAID IN FOO TN OT E 2 2 I F THIS ISN'T CON GN IZ ABLE O N S TATE HAB EA S. THE STATE BEL OW SAI D T HE RE W AS NO MERIT REG AR DI NG T HE C LAIM TO MR. V ES KI . SO THERE MAY B E C ON FU SI ON B UT PART OF THE CONFUSION IS WE DON'T HAVE A TRANSCRIPT OF THE HEARING WITH THE JUDGE SPECIFICALLY D ELINEA TE S W HA T HE IS TAKING E VI DE NCE ON BUT I'M SUBMITTING THAT IT IS RELEVANT REG ARDLESS BECAUSE I T IS RELEV AN T T O D O T HE CUMULATIVE ANALY SI S O F SMYKOWSKI I NF OR MA TION . IT IS ALSO R ELEV AN T T O EVALUATING THE CREDIBILI TY O F B ETH SREEN AN A ND SMY KO WS KI. SDPLOOS WAS THAT A LL ARTICULATED TO THE TRIAL COURT JUDGE AT THE TIME?

I BELIEVE IT WAS. I MADE A P ROFFER OF W HA T H E W OULD TESTIFY T O , A ND H OW I BELIEVED IT WAS R ELEV AN T , AND WHY IT NEEDED TO B E ADM IT TED. A ND A LS O REN EW ED I T L ATER AND ALSO IN THE CLO SI NG A RG UMEN T RELIED ON IT P OINT IN G O UT THA T THE JUDGE HAD BEEN W RO NG I N NOT TAKING T HIS E VIDE NC E BECAUSE IT HAD TO BE -- I T W AS PART OF A CUMULATIVE E VALUATION OF THE BRA DY . > > CHIEF JUSTICE: J US TI CE CANTERO?

JUSTICE: MY U ND ER STANDING OF THE R ECORD I S Y OU HAD N OT BEEN ABLE TO ACT UALL Y F IN D MR. SMYKOWSKI?

THAT'S THE WAY THE S TATE PHRASES IT. WE HAD FOUND HIM. THE THING IS M R. SMY KO WS KI W AS AN I MM IGRANT A ND H E WAS W AN TED BY THE U.S. M AR SH AL S S ER VICE BECAUSE OF A P AROL E V IO LA TION. HE WAS SCARED.

JUSTICE: DID YOU HAVE A N ADDRESS AND PHONE NUMBER F OR HIM?

NO, WE DID N OT H AV E AN ADDRESS AND PHONE N UM BE R FOR HIM.

JUSTICE: YOU NARROWED IT T O A PARTICULAR CITY OR COUNTRY?

HE WOULD NOT ALLOW T HE REPORTER OR H E TOLD THE REPORTER NOT TO GIVE U S HIS LOCATION. THE REPORTER A RRANGE D FOR U S TO MEET WITH HIM. WE MET WITH HIM I N M ARCH O F 2 002 , AND S UB SE QUENTL Y A S W AS PUT ON THE RECORD , THE PROSECUTOR , M R. REE D R UBEN G OT A PHONE N UM BER F OR H IM AND MR. RUBEN INDICATED HE HAD TALKED TO M R. SMYKO WS KI A S WELL.

JUSTICE: AND DIDN'T THETRIAL COURT DENY THE MOTION WITHOUT PREJUDICE FOR Y OU T O COME BACK AND RENEW THE M OT ION ONCE YOU HAD A PHONE N UMBER , ADDRESS AND WERE ACTUALL Y ABL E TO --

WHEN WE WERE NOT IFIED BY THE PROSE CUTOR THA T H E H AD A PHONE NUMBER AND HAD TALKED T O M R. SMYKOWSKI WE R EN EW ED T HE REQUEST SAYING FOR THE PURPOSES OF THE R UL IN G A ND RUL E, S IN CE T HE P ROSE CU TO R H AS A PHONE NUMBER F OR MR. S MYKOWSKI AND HAS T AL KE D TO HIM THA T S HO UL D S AT IS FY THE REQUIREMENT.WE ALL KNOW W HERE H E I S AT. IT IS J UST A QUESTION OF PHYSICALLY, I MEAN HE IS HIDING FROM THE U .S . GOVERNMENT, AND S O H E WON 'T GIVE US A S TR EE T A DDRESS.

CHIEF JUSTICE: HOW IS HE GOING TO BE A BL E T O B E SWO RN UNDER OAT H AND HAV E R ELIA BL E TESTIMONY? I MEAN, HOW WOULD T HA T HAEN? IN OTHER WORDS, ASSUME THE JUD GE P ERMI TTED I T , W HA T T HE N HAENS? WHO SWEARS HIM UNDER O AT H AND HOW DO W E T HEN - - H OW DOE S THE JUDGE E VALUATE THE CRE DI BILITY OF WHAT H E HAS TO S AY ?

WE DIDN'T GET T O T HA T POI NT BECAUSE THE JUDGE DEN IE D T HE MOTION.

CHIEF JUSTICE: I WANT TO UNDERSTAND THAT, THOUGH.

WITHOUT ADDRE SSIN G .

CHIEF JUSTICE: YOU SAID WITHOUT PREJUDICE BUT I THOUGHT ONE OF THE I SSUE S W AS THERE WAS NO PROCEDURE FOR EVEN SWEARING IN THIS W ITNESS.

WELL, THERE IS A P RO CEDU RE CERTAINLY FOR SWEARING IN I N THAT A COURT REPORTER CAN SWEAR IN. THE STATE'S POSIT ION WAS T HAT ON THE B AS IS O F HAI RL , W HICH WAS DECID ED O N T HE B ASIS O F THE CON FR ONTATION CLAUSE , EXCUSE ME, THERE SEEMS TO BE SOMETHING IN MY THROAT.

CHIEF JUSTICE: DO YOU NEED SOME W AT ER ? W E HAD M R. R IC HARD S C OU GHING EARLIER.

MAYBE THERE I S SOMETHING IN THE AIR. ANYWAY, I N THE HAR RE LL CAS E THE QUESTION WAS T HE CONFRONTATION CLAUSE REQ UIREMENT THAT THE T ESTI MO NY , THERE HAS TO B E A N O AT H THA T CAN BE ENFORCED. IN OTHER WORDS YOU HAVE TO BE SUBJECT TO EXTRA ADDITION F OR PERJURY , A ND I N T HIS I NSTA NC E H E WAS I N D EV IE B EC AU SE T HERE WAS NOT A N E XTRA DITI ON T RE ATY. THE S TATE'S POSITION WAS THA T IT WAS NOT A N E NF OR CEAB LE OATH.

CHIEF JUSTICE: SINCE YOUARE IN YOUR R EB UTTA L AND YOU ARE COUGHING WHY DON'T WE H EAR FROM THE STATE AND ALLOW Y OU TO GET UP ON REB UT TA L?

MAY IT PLEASE THE C OURT , SANDRA J AGGARD HER E O N B EHALF OF THE THE STATE. BEFORE THE RECORD ON AEAL FROM THE F IRST RUL E 3 W AS FILED, THEY H AD O FFIC ER V ESKI TELLING THEM HE WAS PRESS URED AT T HE T IM E O F T RIAL , T HEY RECEIVED HIS NOTES B EFOR E T HE F IRST RULE 3. WHILE THE RECORD ON A EA L HAVING NOT PRESENTED THIS EVIDENCE AT THE FIRST R ULE 3 HEARING WHERE THEY WERE GRANTED AN EVIDE NTIARY HEARING ON EVERY CLAIM T HEY A SS ERTE D THAT THEY WANTED AN EVIDENT IARY HEARING ON , T HE Y DID N'T PRESENT OFFICER V ESKI. THEY THEN COME IN BEFORE THE RECORDS ON A EA L W ER E PREPARED BUT WHILE IT IS ON AEAL AND MAKE A MOT IO N TO G O TO OFFICER VESKI O N T HE BAS IS THAT SOMEHOW HE IS G OING TO SHOW THE STATE'S W ITNE SS ES LIE D, THAT THE B LANK ET W AS IN THE CHAIR AND ABO UT THE FLASH LIGHT WHICH WAS NEVER PRESENTED AT TRIAL.

CHIEF JUSTICE: SO YOU ARE SAYING THAT THERE REALL Y W AS NO REASON THEY COULDN'T H AVE PRESENTED THIS AT THE TIME OF THE FIRST E VIDE NT IARY H EA RING?

OR THEY COULD HAVE PRESENTED THIS AT THE TIME OF THE T RIAL.

CHIEF JUSTICE: LET ME WITH THIS.

THEY SHOULD HAVE INVESTIGATED IT THEN.

CHIEF JUSTICE: THE FLASHLIGHT, N OTHING ABOUT THE FLASHLIGHT IS P RESENTED AT THE TRIAL?

NO.

CHIEF JUSTICE: EXPLAIN T HE SHAWL.WHAT WAS THE STATE'S POSITION ABOUT WHERE THE SHAWL WAS?

THE B LA NK ET W AS LAY IN G - - S HAWL.

CHIEF JUSTICE: ARE W E USI NG BLANKET AND S HA WL I NT ER CHAN GE BLI?

YES. IT IS M Y U ND ER ST ANDING IT I S A P LAID B LANKET. I'M NEVER S EEN IT. IT WAS F OL DE D S IT TING I N T HE DRIVER'S SEAT. THE D EFENDANT HIM SE LF TESTIFIED THAT'S WHERE IT IS WHEN THE CRIME IS COMMI TTED . THE C RIME S CE NE PHO TO GRAP HS SHOW THAT'S WHERE IT IS AND THE DEFENSE PRE SENTS EVIDENCE WHEN IT IS RECOVERED FROM THE CAR THAT IT HAS B EEN M OVED T O THE PASSENGER SEAT AND T HA T' S PRESENTED AT 3 27 8 THR OU GH 3 27 9 O F T HE DIREC T A EAL R ECORD . > > CHIEF JUSTICE: IN OTHER WORDS, T HE Y - - T HE P OSIT IO N A T T RIAL WAS THAT AT T HE T IME O F THE CRIME IT WAS IN T HE - - O N THE D RI VER' S S EA T?

YES, AND THAT'S S HOWN IN THE CRIME SCENE PHOTOGRAPHS AND THE DEFENDANT HIMSELF ADM ITS THAT.

CHIEF JUSTICE: AND THE DIFFERENCE IS THAT V ESKI S AY S THAT IT WAS A CT UA LLY T HA T H E RECOVERED IT F RO M T HE PASSENGER SIDE?

WHEN HE I NV ENTO RY !! IE D T HE CAR TWO DAY S LATER IT WAS O N T HE PASSENGER S EAT . AND THAT WAS PRESE NTED A T TRIAL.

CHIEF JUSTICE: AT THE TIME OF ORIGINAL TRIAL BECAUSE THE VOIR DEAR O F H ANLO N SAI D I T S HOWED THAT IT W AS R EC OVERED FROM THE RIGHT SEAT OF THE CAR?

THEY KNEW THE BLA NKET HAD BEEN MOVED. IT WAS ON THE SEAT D URING T HE CRIME. NOB ODY D ISPUTED THAT. THE DEFENDANT HIMSELF ADMITTED THAT.

JUSTICE: WAS THERE TESTIMONY THAT VESKI WAS PRESSURED AS T O T HA T TES TIMO NY REGARDING THE B LA NK ET ?

THERE WAS NO - - T HI S A LL COMES UP IN POST-CONV IC TION. VESKI DOESN'T TESTIFY AT TRIAL.

JUSTICE: I'M SORRY , I N HIS AFFIDAVIT IS THERE ANY TESTIMONY THAT WE HAVE NOW THAT VESKI SAY S HE WAS PRESSURED AS TO T HE BLANKET?

HE SAYS HE W AS P RE SSUR ED T O TESTIFY ABOUT WHERE THE BLANKET WAS RECOVERED BUT WHERE THE BLANKET W AS RECOVERED WAS ALWAYS KNOWN. IT IS NOT ANYTHING THAT W E EVER CHANGED. IT WAS KNOWN THAT I T WAS RECOVERED TWO DAYS LAT ER F RO M THE PAS SENGER S EA T A T T HE TIM E OF THE CRIME I T W AS I N T HE DRIVER'S SEAT AND T HA T WAS BEYOND - -.

JUSTICE: THEN W HY W OULD THEY PRESSURE HIM?

I HAVE NO IDEA WHY HE W AS PRESSURED BUT THIS CLAIM WASN'T RAISED. IT WAS JUST RAI SE D IN THE MOTION TO R ELIN QU IS H JURISDICTION.

JUSTICE: WAS THERE A N I NVENTORY S HEET T HA T TALKED ABOUT WHERE T HESE THINGS WERE FOUND? WAS THERE SOME P ROBLEM WITH THE I NVENTORY SHE ET S AY ING O NE THING AS O OS ED T O --

THERE WERE H ANDW RITT EN NOTES THAT WERE NOT D IS CL OS ED AT THE TIME OF T RI AL BUT DISCLOSED BEFORE THE FIRST POST-CONVICTION HEARING.THEY HAD THEM THE N .

JUSTICE: THE B LA NKET I S PRETTY CRITICAL EVIDENCE , ISN'T IT? THIS IS WHERE PART O F T HE THEORY WAS THAT HE WAS NOT I N THAT S EA T A T T HE T IM E AS H E CLAIMED BECAUSE IT HAD BLOOD ON IT. I MEAN, I SN'T THA T - - S O I MEAN IT IS REALL Y P RE TTY --

THAT'S PART OF T HE S TA TE'S C ASE.

CHIEF JUSTICE: .

JUSTICE: A PRETTY SIGNIFICANT PART.

IT WAS SHOWN THERE W AS BLOOD BOTH ON THE TOP OF THE B LANKET WHERE IT WOULD HAVE GOTTEN FROM THE SHOOTING AS WELL AND IT IS NOT BLOOD. WE NEVER COULD SHOW I T W AS BLOOD.IT WAS J US T S PECS O F I TE MS THA T T ESTE D P OS IT IVE FOR BLO OD BUT THERE WERE A LS O S PE CS O N THE BOTTOM S IDE A ND THA T EVIDENCE WAS PRESENTED TO THE JURY THAT THERE WAS SOM E BLO OD WHERE IT SHOULDN'T HAV E BEE N IF T HE B LA NK ET , IF T HE STA TE 'S THEORY, S O THE JURY H AD T HE OORTUNITY TO EVALUATE THA T .

CHIEF JUSTICE: AGAIN THAT COULD HAV E H AP PE NE D I F I T W ER E MOVED A FTER THE - -

OR IT COULD H AV E H AENED --.

CHIEF JUSTICE: IT WASN'T DISPUTED THAT IT WAS MOVED AFTER THE CRIME HAD O CCURRED?

YES, IT WAS N OT D ISPU TE D THAT IT W AS MOVED AFTER T HE CRIME OCCURRED.

CHIEF JUSTICE: WHAT ABOUT, AND I D ON'T KNOW IF THIS IS WITHIN THE SECOND CLAIM , BUT I'M VERY C ONCE RNED A BO UT S OM E A LLEGATIONS AND I DON'T KNO W IF THEY ARE P RO PE RL Y B EF ORE THE COURT, BUT ON T HE FOLLOWING.FIRST OF ALL, WHAT I S THE EFFECT T HAT SMY KO WSKI W AS G IVEN F AV ORS D UR IN G THE T IME THAT HE W AS BEF OR E H E TESTIFIED T AKIN G HIM OUT T O S EE HIS DAUGHTER , E IT HE R GIVING HIM CHICKEN OR DRI NK S . > > THE O NLY A LL EGATION THAT WAS P ROVED THEY W ER E - - THEY'VE NOW BEE N GIVEN T WO EVIDENT IARY HEARINGS ON THIS , AND ALL T HEY HAVE M AN AGED T O PROVE IS THAT THE POLICE OFFICERS AT ONE POINT LET H IM VISIT HIS DAUGHTER AND BOUGHT HIM A BUC KET O F C HI CKEN . ALL OF THE GOING T O D RI NK S , THE PRESSURING FOR TESTIMONY AND REWARD , THA T'S BEE N ALLEGED OVER AND OVER AGAIN AND IT HAS N EV ER B EE N PRO VE N.

CHIEF JUSTICE: WELL, H IS TESTIMONY AT TRI AL W AS N OT THAT THE D EFEN DANT ADMIT TE D K ILLING THE V IC TIM , B UT THA T HE TALKED ABOUT HOW H E W AS GOING TO BECOME A M ILLI ONAI RE .

AND HE TUR NED WHITE AS A SHEET WHEN HE SAI D DID YOU KILL HIM AND HE D IDN'T HAV E A N INC ULPATORY STATEMENT. HE HAD INC UL PA TORY E VIDENC E.

CHIEF JUSTICE: AND THE ISSUE THAT THE G ERMA N C OUNS EL AT E H AS BROUGHT UP, DOE S T HAT RELATE TO THIS ISSUE ON AEAL?

NO , IT RELAT ES T O I SS UES I N THE DIRECT AEAL AND THE PRIOR RULE 3 AND THE D EFENDA NT HAS RECENTL Y F ILED A STA TE HABEAS THAT RELATES T O T HOSE ISSUES, BUT IT DOES NOT R EL ATE TO ANY ISSUES THAT ARE PRESENTLY BEFORE THE COURT AND THEREFORE THAT AMICUS B RI EF I S NOT A PROPE R A MI CU S B RI EF A ND IT IS THE STATE'S POSITION IT SHOULD BE REJECTED FOR THO SE GROUNDS AS WELL AS THEY SHOULD STEP INTO THE SHOES OF THE DEFENDANT AND T HE S TATE I S BARRED.

JUSTICE: WHA T IS THE STATE OF THE RECORD O N THE WHEREABOUTS OF S MYKO WS KI?

THE STATE OF THE RECORD O N THE W HEREABOUTS OF S MYKOWS KI IS THAT WE W ER E T OL D H E WAS S OMEWHERE IN D UBYE . WE T HE N T RY TO PER PE TUATE H IS TESTIMONY THAT ASKS THAT WE B E MADE AVAILABLE TO A NS WE R THE PHONE FOR T HREE DAYS. NOT THAT WE GET T O G O AND G ET HIS TESTIMONY BUT WE S IT B Y A PHONE FOR THREE DAY S WAITI NG FOR THEM TO CALL. THE TRIAL C OURT AT THAT P OINT , THE STATE ALSO OBJECTS THAT IT IS NOT UNDER T HE C RIMINAL RULES, BUT T HIS WOULDN'T BE A N ENF ORCEABLE OATH. WE WOULD BE G ET TING C OM PL ETEL Y UNSWORN TES TIMONY B ECAUSE THERE WOULD BE NO WAY T O ENFORCE AN OAT H I N D UB OI S BECAUSE THE WHOLE R EA SO N H E I S THERE IS WE DON 'T H AV E A N EXTRADITION T REAT Y. A T THAT POINT THE TRI AL C OU RT SAYS I'M NOT GOING TO CONSIDER ANY O F THE SE O TH ER I SSUE S UNTIL YOU COME BACK HER E A ND HAVE THE WITNESS. WHAT HAENS IS WE THEN RECEIVE A PHO NE CALL FRO M SOMEBODY WHO REPORTS TO BE SMYKOWSKI WHICH SAYS THE AFFIDAVIT IS ENTIRELY FALSE . WE D IS CL OSED I T A ND W E HAV E RECEIVED THE PHONE C AL L . > > CHIEF JUSTICE: W HA T AFFIDAVIT IS FALSE?

THE ONE THAT WAS ATT ACHED TO THE RULE 3. AN E VI DENTIARY HEARING W AS GRANTED IN T HI S C ASE O N T HE A MENDED S UCCE SS IVE M OTIO N BECAUSE THE V ESKI C LA IM DOESN'T COME UP UNTIL THE AMENDED S UCCESSIVE M OTION AND IT IS RAISED I N CLA IM 4 A ND A N EVI DENTIARY HEARING IS GRANTED ON CLAIMS 1 AND 3 .

CHIEF JUSTICE: THE AFFIDAVIT, WAS THERE TWO ASPECTS TO IT , ONE I S T HA T H E IS GIVEN FAVOR S AND T HE OTHER THAT HE R ECAN TS HIS STA TE ME NT ? > > HE SAYS HE DID I T ALL BECAUSE HE WAS GIVEN ALL O F THESE FAVORS.

CHIEF JUSTICE: IN THE AFFIDAVIT ? AND THEN H E C AL LS Y OU A ND S AY S WHAT I SAID IN THE A FF ID AVIT IS FALSE?

IS A L IE. IT HAS NOTHING TO DO WIT H I T. WE RECEIVE A PHONE CAL L F ROM SOMEONE WHO SAYS I'M W AL TE R SMYKOWSKI AND THIS IS A LL A LIE.

CHIEF JUSTICE: THAT'S HELPFUL TO THE STATE?

YES, BUT WE W OULD L IKE TO HAVE A SIT UA TI ON W HE RE W E H AV E MR. SMYKOWSKI IN SOME WAY, SHAPE OR FORM IN THE M AN NER A STATE CAN BE ASSURED WE ARE ACTUALLY S PEAKIN G T O MR. S MYKOWSKI AND NOT SITTING BY A PHONE W AITING FOR T HE M T O CALL US , N OT SOM E - - T HI S E VIDE NTIARY HEARING WENT O N FOR MONTHS. WE ARE AT T HE END OF T HE EVIDENTIARY HEARING. THE TRIAL C OURT HAS A LREADY SAID HE IS NOT EXT EN DING I T ANY MORE AND AT THE END O F T HE DAY BEFORE WE ARE SUOSED TO END T HEY S AY O H, N OW T HE STA TE HAS HEARD FROM SMYKOWSKI. NOW WE SHOULD BE ABLE T O G O P ERPETUATE HIS TESTIMONY. WE ARE AT T HE END OF T HE PROCEEDINGS. THEY'VE HAD YEARS TO BRI NG SMYKOWSKI IN. THEIR ONLY EFF ORTS T O L OC AT E SMYKOWSKI AT THE TIME OF T HE ORIGINAL AEAL, THE ORIGINAL RULE 3 WAS T O CALL I NS. THE Y NEVER E VEN C ALLED THE MARSHAL SERVICE WHICH I S HOW SMYKOWSKI IS E VENTUA LL Y LOCATED BY THE GERMAN REPOR TE R . THEY NEVER I NV ESTI GATED IT. THEY KNEW A BOUT THE L ET TER FROM THE S MYKO WS KI TO T HE STATE ATTORNEY ABOUT THE D AUGHTER THEY KNEW ABOUT CONCERNS ABOUT THE DAUGHTER FROM THE TIME OF TRIAL. THEY NEVER MADE ANY A TT EM PT S TO FIND THE DAUGH TE R . IT IS A SUC CE SSIV E M OTIO N WHERE YOU HAV E AN I N SU FFIC IENT ATTEMPT TO BRI NG I N A W IT NESS AFT ER TWO EVI DE NT IARY H EARINGS GRANTED ON A C LA IM A ND Y EA RS GRANT ED TO D O THIS AND I NSTE AD WE WERE SUOSED TO ACC EPT A PHONE CALL, I SUOSE , B ECAU SE THEY NEVER EVEN PROPOSED HOW WE WERE GOING T O P ERPETU AT E THI S D EPOSITION OTHER T HAN THIS PHONE C ALL IN THE ORIGINAL MOTION, SO THEY NEVER PROPOSED HOW WE WOULD GET THI S TESTIMONY IN THE MIDDLE OF THE EVIDENTIARY HEARING , AND W E H AVE SERIOUS PROBLEMS. I MEAN, WE HAVE A D EFEN SE ATTORNEY WHO WE HAVE O N T AP E OFF ER ING TO M AKE A C HA RI TI ABLE CONTRIBUTION TO THE W IT NESS B E FRE E FUND. WE HAVE A $ 15 ,0 00 REW AR D OFFERED FOR TESTIMONY OF THE WITNESSES THAT THEY DIDN'T TELL US ABOUT. WE ARE NOT REA L WIL LING T O ACCEPT THAT WE ARE J UST GOI NG TO PUT SOMEBODY ON A PHONE WHERE WE DON'T KNOW WHERE THIS MAN IS FROM. WE W AN T S OM E I NDIC IA FOR LIABILITY HERE. IF THEY WANTED A M OT IO N T O PERPETUATE A DEP OS IT IO N T HE Y SHOULD HAVE DONE IT PROPERLY WITH ACCURATE A DD RE SS ES S O W E COULD BE SURE WE HAV E THE R EA L WIT NESS.

JUSTICE: W HAT DO YOU UNDERSTAND THE OOSITION 'S POSITION TO BE A BOUT THI S A RGUMENT?

MY UND ERSTANDING OF T HE SUBSTANCE OF T HE SMY KO WSKI C LAIM.

JUSTICE: NO, THE B LANK ET.

THE BLA NKET ?

JUSTICE: YES.

AT THIS POINT THEY ARE SAYING IT IS C ONTAMI NATE D. IN THE RULE 3 IT W AS W E T ESTIFIED FALSELY A BOUT W HE RE IT WAS DURING THE CRI ME , PARTICULARLY CONSIDERING THAT THE CLAIM WITH REGARD TO T HE B LANKET BEI NG I N - - VES KI A LS O HAD A CLAIM W E N EEDE D D NA TESTING BECAUSE IT WOULDN'T BE M ISS KISCH NI CK 'S B LO OD O N THE BLANKET. IF THE BLOOD IS O N THE B LA NKET BECAUSE OF C ONTAMI NA TION IT WOULD B E MISS K IS CHNI CK 'S BLOOD.

CHIEF JUSTICE: THAT DNA TESTING HAT NOT O CCURRED YET?

THEY WERE GRANTED PERMISSION TO DO THE D NA TESTING.I HAVE NO I DEA W HAT THE STATUS OF THE DNA T ES TING I S . BUT IT IS THE STA TE'S P OSITION THAT THE VESKI C LA IM W AS BARRED AND P RO PERLY REF USED T O HEAR TESTIMONY ON A BARRE D CLAIM BECAUSE T HI S COU RT W HEN YOU TALK ABOUT CUMULATIVE ANALYSIS CONTINUALLY STATES W E ARE L OOKING AT T HE C UM UL AT IV E ANALYSIS OF THE CLAIMS THAT AREN'T BARRED. NOT THE CLAIMS THAT A RE BARRED. AND TO HAVE AN E VI DENT IA RY HEARING WHERE YOU HAVE A BARRED C LA IM , Y OU H AV E B EE N DENIED AN EVI DE NTIARY H EARI NG ON IT I S IMP ROPE R T O HEA R T HA T TESTIMONY AND THE STATE 'S P OSITION THEY DID NOT M AK E SUFFICIENT EFFORT T O BRING MR. SMYKOWSKI FORWARD AND THAT , THEREFORE, THAT CLAIM WAS PROPERLY DENIED W HEN NO EVIDENCE WAS PRESENTED UPON IT. AND THE STATE R ES PE CT FU LLY RESPECTS YOU AFFIRM AND ALL OW US TO MOVE F OR WARD W ITH RESENTENCING .

CHIEF JUSTICE: MR. M cC LAIN , REBUTTAL?

YES, YOUR HONOR. FIRST , OFFIC ER VES KI 'S AFFID AVIT, W HICH I S FRO M 1 99 7 , INDICATES THAT HE F IR ST T OL D THE DEFENSE A TTORNEYS ABOUT THI S IN THE SPRING OF 199 7 , RIGHT BEFORE HE SIGNED THE AFFIDAVIT. I NDICATED HE HAD TALKED TO THEM BEFORE B UT H E HAD WITHHELD THIS INFORMATION. HE SAID THAT HIS M OTHER W AS DYING , HE WAS U PSET , H E COU LDN'T FOCUS.

CHIEF JUSTICE: ON THE BLANKET, I SN'T THERE EVI DENC E T HAT A T THE D EFEN DANT K NE W A T THE TIME OF THE T RI AL T HA T V ESKI HAD FOUND THE SHA WL O N T HE PASSE NGER S EA T. > > WHO FOUND THE S HAWL ON THE PASSENGER SEAT? THAT WASN'T DISCLOSED BUT I T HAD BEEN FOUND ON THE PASSENGER SEAT BUT THE IMPORTANT THING IS IN V ES KI 'S AFFIDAVIT HE SAYS T HAT IT WAS WET W IT H BLOOD B UT THE ENT IR E CAR WAS T WO DAY S L AT ER I T HADN'T DRIED. IT WAS THE SUMME RTIM E AND H E WAS, IN F ACT , HE SAYS I N H IS AFFIDAVIT C RI TICIZE D F OR SEARCHING THE CAR WHEN I T W AS STILL WET WIT H BLOOD.

CHIEF JUSTICE: THE BLANK ET WAS WET WITH BLOOD A ND Y OU ASKED TO HAVE DNA T ES TI NG DON E OF THE BLANKET?

YES.

CHIEF JUSTICE: AND WHAT'S THE STATUS OF THAT?

WE DON'T HAVE C US TODY OF IT. WE ARE REL YI NG ON SO ME BO DY ELSE TO TRANSFER TO F DL E F OR THE TESTING AND I T H AS N' T OCCURRED. I DON'T KNOW WHAT WE C AN M OR E DO OTHER THAN GET AN ORDER FROM THE COURT. IT DIDN'T GET T RA NSFERRED. NO ONE WILL TAKE IT T O FDL E FOR THE TES TING . I N ANY E VENT , THE AFF IDAV IT.

J USTICE: WAIT, THERE I S A COURT ORDER THAT ORDERS SOMEBODY TO DO SOMETHING, A ND WHAT ORDER IS T HAT?

THE JUDGE GRA NT ED T HE D NA TESTING A FT ER - - A UT HORIZI NG HIM TO DO IT. M Y U NDERSTANDING OF THE ORDER WAS THAT THE BLANKET WOULD BE SENT TO FDLE.

JUSTICE: O RDERED THE STATE ATTORNEY'S OFFICE TO SEND I T ; IS THAT Y OUR REPRESENTATION?

WELL , I D ON'T R ECAL L I F THEY SAID THE STATE OR THE SHERIFF'S DEPARTMENT OR WHO, BUT WE DON'T HAV E C US TODY O F IT. WE CAN'T - -.

JUSTICE : H OW L ON G A GO DID THIS HAEN?

IT WAS IN 2 002. > > JUSTICE: THR EE Y EA RS L ATER AND NOBODY HAS FOLLOWED UP ON IT?

THE C IRCUIT C OU RT D OE SN'T HAVE JURISDICTION SO THERE IS NOTHING.

CHIEF JUSTICE: BUT, MR. McCLAIN, AND YOU ARE A PASSIONATE ADVOCATE. YOU ARE T ELLING US THA T THI S SHOWS SOMEHOW WHEN M R. - - OFFICER V ESKI FOUND THI S T HA T IT IS ALL WET W IT H BLO OD , AND I ASKED YOU ABOUT , W EL L , W HAT ABOUT T HAT DNA T ES TING AND Y OU GO, WELL, NOTHING H AS H AENED WITH IT. DOES THAT SORT OF SAY T O Y OU THAT WE SORT OF W ON DE R H OW MUCH YOU THINK THAT THAT WOULD VERIFY WHETHER THERE IS B LO OD ALL OVER THE B LANK ET?

ACTUALLY T HIS IS ONE P OI NT THAT THE STA TE A ND I M AY A GR EE ON IN THA T GIVEN WHA T VES KI SAYS, IT IS PROBABLY THE VICTIM'S BLOOD BECAUSE IT WASIN THE PAS SENGER S EAT. CERTAINLY THE DNA T ES TI NG COULD ESTABLISH ONE W AY OR ANOTHER IF IT IS , I N F AC T , BLOOD.

JUSTICE: DID THAT COME O UT AT THE T RI AL , THA T T HE BLA NK ET W AS IN T HE P AS SENG ER SEAT?

IT C AME OUT T HAT I T WAS IN THE PASSENGER SEAT , N OT T HA T THE PASSENGER SEAT WAS WET WITH B LOOD T WO D AY S L AT ER , B ECAUSE IT H AD N' T DRI ED .

SO IS T HA T T HE N EW -- A GAIN , LET 'S TAKE AWAY T HE F LA SHLI GH T , LET'S TAKE AWA Y W HERE T HE BLANKET IS F OUND , AND N OW I S T HE ISS UE THA T THE N EWLY DISCOVERED EVIDENC E T HAT T HE BLANKET IS WET WITH BLOOD , IS THAT WHAT YOU WOULD - - B EC AU SE THIS GOES BACK TO WHAT I A SK ED Y OU YOU R D IREC T I S THA T Y OU WOULD PRESENT A T N EW T RI AL VESKI SAYING THE B LANK ET I S WET WITH BLOOD?

YES.

CHIEF JUSTICE: I D IDN'T HEAR THAT.

BECAUSE, I MEAN , T HAT SHO WS THAT IT IS N OT I NC ON SIST EN T WITH M R. RIECH MA NN 'S TESTI MO NY THAT HE WAS SIT TING ON THE BLANKET AT THE TIME OF THE SHOOTING. THAT AFTER HE EXI TS THE CAR WHEN THE POLICE ARE T RYIN G T O REC ESS TATE THE V ICTI M A ND - - RESUS TATE THE VICTIM. SHE GETS MOVED OVER TO T HE PASSENGER SEAT WET WITH BLOOD. SO, THEREFORE, THE F AC T T HAT THE STATE --.

CHIEF JUSTICE: THAT'S WHAT I SAID. IT CAME OUT AT T RI AL THAT THE STATE DIDN'T DISPUTE THAT IT WAS F OUND AT THE T IM E OF THE CRIME IN THE DRIVER'S SEA T?

W EL L - -.

CHIEF JUSTICE: ISN'T T HAT CORRECT?

THERE IS A DIF FERENCE BETWEEN THE TIME OF THE C RIME AND THE TIME IT IS S EI ZED F ROM THE CAR. EVERYBODY AGREES AT THE TIME OF THE CRIME IT I S I N THE DRIVER'S SEAT. THE QUESTION IS WHAT DOES THAT MEAN WHEN THERE IS BLO OD O N IT? IF IT IS A LWAY S THE RE A ND MR. RIECHMANN IS SITTING ON I T , THEN IT IS I NC ON SIST EN T WIT H HIM HAVING SAT ON IT I F THE RE IS BLOOD ON IT BUT IF AFT ER HE IS OUT OF THE CAR THE P OL IC E MOVE IT O VER INTO T HE PASSENG ER SEAT AND IT IS W ET WITH BLOOD AND IT G ET S B LOOD TRANSFERRING FROM THE P ASSENGER SEAT, THE SIGNIFICANCE OF THE PRESENCE OF B LOOD AND I T B EI NG I NCONSISTENT WITH MR. RIECHMANN'S TESTIMONY IS COMPLETELY BLOWN. IF I T GET S BLO OD B ECAUSE I T ISIN THE PASSENGER SEAT T HAT IS WET WITH BLOOD AFTER THE SHOOTING, THEN THE SIGNIFICANCE OF THE BLOOD BEING PRESENT ON IT , I T JUS T DOESN'T MATTE R .

CHIEF JUSTICE: WELL, ON THAT WE'LL HAVE T O T AK E THE MATTER UNDER ADVISEMENT AND TRY TO PUT THE P IECES OF T HE PUZZLES TOGETHE R . THANK YOU VERY M UC H T O B OT H SIDES.