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THE MARSHAL: PLEASE RISE . LADIES AND GENTLEMEN, THE FLORIDA SUPREME COURT. PLEASE BE SEATE D .

CHIEF JUSTICE: GOOD MORNINGAGAIN. THE NEXT CASE O N THIS MORNING'S DOCKET IS PHILMORE VERSUS THE STATE OF FLORIDA .

MAY IT PLEASE T HE C OURT , M Y NAME IS JAMES VIGGI ANO , A ND I REP RESENT L EN AR D PHI LMOR E I N THE CIR CUIT C OU RT'S DENIAL OF HIS 3 .8 51 ACT IO N. I WOULD L IK E T O ARG UE I SSUE NUMBER 2 OF T HE INI TIAL B RIEF THA T C OU NS EL W AS INE FFEC TIVE IN T HE P RETR IA L P REPA RA TI ON AND REPRESENTATION O F MR. PHILMORE, AND A S T IM E PERMITS I WOULD LIKE TO A RG UE ISSUE NUMBE R 1 T HA T T HE T RIAL COURT ERRED I N ALL OWIN G T HE STRIKE OF JUROR H OL T TO G O FOR WARD A S N ON PR ETEX TU AL A ND THAT T HE - -.

CHIEF JUSTICE: ON THAT ISSUE , DIDN'T WE ALR EA DY R UL E ON THAT IN THE CAS E O N A PP EAL?

YES, YOUR HON OR. H OWEVER - -.

CHIEF JUSTICE: SO T HA T WOULD BE R ELIT IGAT ING SOMETHING THAT WE ALREADY --

I WOULD LIK E T O P OI NT OUT THAT MILLER CAME OUT AND T HE T OTALITY OF THE C IR CU MS TA NC ESSHOULD BE C ONSIDERED.

ON ISSUE N UMBE R 2 , D O W E HAVE TO DEC ID E REALLY THE THRESHOLD ISSUE IS WHETHERTHERE IS ANY R IG HT O F COU NS EL BEFORE CHARGES HAVE BEE N F ILED IN THAT SPECIFIC CASE.

YES, YOUR HONOR, AND I BELIEVE THE CASE L AW RELAT ES THAT THE RIGHT TO C OUNS EL IS CHARGED SPECIFIC, HOWEVER, THE RIGHT TO COU NSEL A LSO WOU LD COME INTO PLAY WHE N T HERE IS CUSTODIAL RESTRAI NT . IN THIS CAS E , M R. PHI LMOR E W AS A RRESTED F OR T HE T RE SPAS S I N A R OBBERY BUT NOT T HE M UR DE R , BECAUSE THE STA TE DID N OT KNO W WHETHER M UR DE RED BEEN COMMITTED OR AN ABDUCTION. THEY WERE QUE ST IONI NG MR. PHILMORE O N N OVEM BE R 15T H REGARDING T HE T RE SP AS S A ND THE ROBBERY OF THE I ND IA N TOWN BAN K , AND W HE N THE Q UE STIO NING EVOLVED TO THE A BDUC TION O R P OSSIBLE A BDUCTION O F MS. PERRON, AT T HA T POI NT MR. P HILMORE HAD THE GOOD SENSE TO TERMI NATE AND S HU T DOWN THE QUESTIONING A ND R EQUEST C OU NS EL . THE LAW E NF OR CE MENT OFF ICERS AT THAT P OINT H AD C OUNS EL APP OINTED AND A P UB LI C DEFENDER HETHERI NGTON , THE L AW ENFORCEMENT AGE NT S N EW THE Y WERE QUEST IO NI NG M R. P HI LM ORE ABOUT A POSSIBLE ABDUC TI ON . MR. PHILMORE EXERCISED HIS RIGHT TO C OU NSEL BEC AU SE T HE Y WERE QUESTIONING ABOUT THE A BDUCTION. MR. HETHERINGTON CAME --

WAS H E UND ER A RRES T FOR THE ABDUCTION AT THAT POINT?

NO, HE WAS NOT. HE WAS UNDER A RREST FOR THE ARM ED T RE SP AS S.

ISN'T THAT THE THR ESHOLD ISSUE WHETHER HE IS NOT UND ER A RREST FOR THE PARTI CU LA R OFFENSE, DOES HE H AVE T HE RIGHT, I MEAN HE COU LD INVOK E COUNSEL AND THE Y COULD AS A MATTER OF COU RTESY G IV E H IM COUNSEL IF HE WANTS BUT DOES HE HAVE A CONSTITUTIONAL RIGHT TO COUNSEL A T T HA T P OI NT?

WELL, IF HE WAS R EA D H IS MIRANDA WARNINGS E AC H T IM E , EACH TIME THEY Q UEST IO NED H IM , AND E VE RY ON E K NEW WHAT THE QUESTIONING WAS REGARDING O R REGARDING THE ABDUCTION , AND IF HIS RIG HT T O COU NSEL IF H E DIDN'T HAVE A R IGHT TO COUNSEL UNDER T HE SIXTH A ME ND MENT I T WOULD RENDER T HE M IRAN DA W ARNINGS M EA NING LESS B EC AU SE THERE SAY YOU HAVE T HE RIGHT TO THE ATTORNEY AND ONE WILL BE A PP OI NTED I F Y OU W IS H.

IS IT PART OF YOUR ARGUMENT HERE THAT, IN FACT , T HE ATTORNEY TOOK OVER THAT RESPONSIBILITY? IN T HIS PAR TI CU LA R I NSTA NC E ? THAT IS T HE A TT ORNEY A SSUMED THE ROLE OF REPRESENTING HIM WITH REFERENCE T O T HE M URDE R? > > YES, YOUR HONOR , B ECAUSE MR. HETHERINGTON WHEN HE CAME ON, H E WAS QUE ST IONI NG MR. PHILMORE ABOUT, I MEAN THE CONCERN BY MR. HETHE RI NG TO N WAS THE ABDUCTI ON .

HOW ABOUT MOVIN G ON, THO UGH , TO OBVIO US LY THE LAW YE R TESTIFIED EXTEN SIVE LY AND THE COURT BELOW, A ND W E K NOW T HAT THERE ARE MANY INSTANCES OF WHEN THERE ARE COD EFENDANTS O R MULTIPLE DEFENDANTS OR WHATEVER T HA T T HE ONE T HA T GETS T HERE F IR ST W IT H THE STATE IN TERMS OF P ER HAPS HAVING SOMETHING TO OFF ER O R WHATEVER THAT MAY G ET B ETTE R TREATMENT FROM THE S TA TE O R THAT MAY GET A DEAL F RO M T HE STATE SAVE THEIR L IV ES O R EVEN, YOU KNOW , A GRE AT ER , SO H EL P ME NOW IF YOU W OU LD A DDRESS THE MERITS H ERE W IT H REFER EN CE TO THE E VIDE NCE IN THE CAS E WHY COULDN'T A TRI AL J UDGE CONCLUDE APPARENTLY T HE J UD GE DID HERE THAT U NDER THE CIRCUMSTANCES THAT T HI S W AS NOT INE FF EC TI VE REPRESENTATION. THAT THE L AW YE R WAS L OO KING OUT F OR Y OU R C LI EN T O R HIS CLIENT AT THE TIME. IT IS JUST T HAT T HE C LIEN T CON SISTENT LY MIS RE PRES ENTE D THE CIRCUMSTANCES TO HIM , A ND SO IT WASN'T THE LAW YE R , I T WAS THE C LI EN T THA T DID HIMSELF IN. SO HEL P US WITH THO SE CIRCUMSTANCES.

YES, YOUR HONOR. THE A TTORNE Y D ID N'T D O ANY INV ESTIGATION. HE WAS REC EI VING H IS INFORMATION IN TOT AL F RO M LAW ENFOR CEMENT WITH RESPECT TO THE CASE. HE DIDN'T SEND OUT A NY INVESTIGATOR, H E DIDN'T CONDUCT ANY --.

CHIEF JUSTICE: LET ME STOP YOU THERE, BECAUSE T HIS M AY TIE INTO THE FIR ST I SSUE . I, YOU KNOW , I THI NK T HAT I F SOMEONE HAS INVOKED T HE RIG HT TO COUNSEL BECAUSE OF QUESTIONING THERE H AS GOT TO BE -- C OU NS EL HAS T O P ERFO RM COMPETENTLY BUT THERE IS ALSO AN ISSUE OF WHAT THE SCOPE OF THE REPRESE NTATION WAS A T T HA T TIME, BECAUSE IF H E W ASN' T BEING CHARGED WITH THE ABDUCTION , H E WAS THERE T O A DVISE MR. P HI LMOR E A BOUT WHETHER HE SHOUL D CON TI NUE TO COOPERATE OR NOT. SO NOW YOU ARE S AYING , W EL L , HE SHOULD HAV E S TA RT ED T O INVESTIGATE THESE CHARGES T HAT HADN'T YET B EE N F IL ED ; IS T HAT WHAT YOU ARE SAYING?

THAT'S PART OF THE A RGUMENT , YOUR HONOR.

CHIEF JUSTICE: WELL, LET'S JUST -- S O I S T HAT A N I SSUE ABOUT WHETH ER A COM PETENT COUNSEL BEING CALLED IN U ND ER THESE C IRCUMSTANCES WOULD START TO INVESTIGATE A CRI ME FOR WHICH H E O R SHE H AD N OT Y ET BEEN A PP OI NTED T O REPRESENT IN THE DEFENSE OF THE CASE?

WELL , COM PE TE NT C OUNS EL I N THIS PAR TI CU LA R CAS E DEFINITELY WOULD HAVE TOLD HIS CLIENT AND I N N O UNC ERTA IN TERMS FROM THE MOMENT H E M ET THE CLIEN T , DO N OT M AK E ANY STATEMENTS TO LAW ENF OR CE ME NT OR ANYONE A BOUT THE CAS E WHATSOEVER.

CHIEF JUSTICE: THAT WOULD BE THEN, THEN YOU WOULD R EALLY BE ARGUING FOR A PER Z - R UL E , WHICH IS T HA T I F - - PER S E RUL E WHICH I F SOM EONE W AN TS A RIG HT TO COUNSEL Y OU 'V E G OT THE RIGHT T O E XERCIS E Y OU R RIGHT TO REMAIN SILEN T T HA T YOU WOULD BE DEFIC IENT I F Y OU EVER ALLOWED THA T PER SO N T O CONTINUE TO T AL K T O POL IC E?

NO , YOUR HONOR, I 'M N OT ARGUING FOR A PER S E RUL E A T ALL BECAUSE THERE M AY B E CIRCUMSTANCES ALBEIT RAR E CIR CUMSTANCES WHERE AN ATTORNEY WOULD H AV E T HE IR C LIENT S PEAK T O L AW E NFORCEMENT, BUT T HA T W OULD B E AFTER A V ERY T HO RO UG H INVESTIGATION WAS CONDUCTED. NOW, TO A NSWER Y OUR Q UE STIO N REGARDING WHE RE THE A TT ORNE Y WAS WITH RESPECT TO THEIR CHARGES, THE ATTORNEY C AME O N BOARD A ND D ID S AY TO MR. P HILMORE WITH REGARD TO THE BANK R OB BE RY A T T HE VER Y INITIAL STAGES HE DID TALK T O T HEM ABOUT T HE POSSIBLE TERM OF YEARS, S O ONC E THE Y G OT OFF THE BANK ROBBERY , TH EY WER E A LL ABOUT TALKING A BOUT THE POTENTIAL ABD UC TION. MR. HETHERINGTON WAS R EC EIVI NG THE INFORMATION F RO M L AW ENFORCEMENT ABOUT THEIR SUSPECTED ABDUCTION . HET HERINGTON TESTIFIED THAT HE WAS D EVELOPING A TIM E LI NE B Y INFOR MATION GIVEN TO HIM FROM THE STATE. IT WAS THE C IR CUMS TANT IA L T IMELINE WHERE THE CAR W AS TAKEN AT 1:00 , THE B AN K ROBBERY TOOK PLACE A T 2 :00 , A ND SPANN A ND MR. PHI LM ORE WERE CAPTURED A T 3:0 0.

LET ME A SK YOU R EG ARDI NG T O GET YOUR P OSITION S TRAIGHT ABOUT THE INVESTI GATION. IS IT YOUR P OS ITION T HA T I F A DEFENSE COUNSEL ASK S T HE DEFENDANT, DID YOU C OM MI T T HI S M URDER, AND THE D EF EN DANT SAYS NO, ABSOLUTEL Y N OT , COU NSEL I S NEV ER THELESS UNDER A D UTY TO INVESTIGATE WHETHER HIS CLIENT , IN FACT, COMMITTED T HE MUR DER?

YOUR H ONOR, THE ATTOR NE Y SHOULD CHECK TO FIND OUT I F THE CLIEN T I S D ELUS IO NA L. IN THIS CASE THERE WASEVIDENCE AND TESTIMONYPRESENTED AT THE PENALTY PHASE THAT M R. P HI LMOR E W AS PSYCHOTIC. YOU SHOULD C HECK O UT --

LET ME S EE IF I G ET THA T POSITION STRAIGHT. IF COUNSEL S PE AK S T O H IS CLIENT A ND H IS C LIEN T DOE SN'T APPEAR TO BE D ELUSIO N AL F ACIALLY WHEN HE MEE TS THE CLIENT COUNSEL IS N EV ERTHELESS UNDER A DUTY T O B EFOR E H E DOE S A NYTHING E LSE T O C ON DU CT A PSYCHOLOGICAL EVALUATION OF HIS C LIENT TO SEE WHE TH ER HE CAN BELIEVE ANYTHING HIS CLIENT SAYS?

YOUR HONOR , T HE - -.

I JUST WANT TO SEE I F THAT'S YOUR POSITION.

MY POS ITION IS THAT THE ATTORNEY SHOULD AT LEAST GET TO KNOW T HE CLIENT , GET HIS FEET ON THE GROUND , GET GROUNDED IN THE FACTS OF THE C ASE. IF HE IS B EI NG F ED I NF ORMA TION FROM LAW ENFORCEMENT, WH IC H WAS A VER Y U NI QU E S IT UATION IN MR. HET HERINGTON'S CAS E , I T NEEDS TO BE C HECK ED OUT. HE NEEDS -- H E H AD D ISCREPANCIES BET WEEN W HAT L AW ENFORCEMENT WAS T ELLING HIM AND WHA T MR. P HIL MOR E' S VERSION WAS.

IT S EEMS L IKE YOU ARE ASKING US IN THIS CAS E T O H OLD WHERE THE DEF ENDA NT SPECIFICALLY T OL D H IS LAWYE R I D IDN'T DO IT , I D ID N' T DO THIS , I DIDN'T DO THAT , I DIDN'T D O THAT, THA T THE L AW YE R M US T D ISBELIEVE H IS C LI ENT AND EITHER CONDUCT A P SY CHOL OGIC AL EVALUATION TO SEE I F HIS CLIENT IS CAP ABLE O F B EING DELUSIONAL OR CONDUCT AN IND EPENDENT INVES TIGATION T O PROVE A NEG AT IV E.

IN THIS C ASE MR. HETHERINGTON ACTUALLY HAD HIS RESER VATIONS. HE TESTIFIED AT T HE EVIDENTIARY HEARING THAT H E WAS CONCERNED A BOUT THI S TIMELINE. HE WAS CONCERNED A BOUT MR. PHILMORE'S INVOLVEMENT IN THE ABD UCTION . H E A CT UALLY S AI D H E D IDN' T BELIEVE M R. PHI LM OR E BUT H E ALSO SAID --

YOU ARE ASKING US T O SAY THAT THE LAWYER SHOULD NOT TAKE HIS C LIEN T'S W OR D I N ADVISING H IS C LIEN T , EVE N THOUGH THE LAWYER HAS T OL D HIS CLIENT YOU HAVE TO TELL ME THE TRUTH IF I AM GOING TO ADV IS E YOU CORRECTLY, YOU NEED T O TELL ME THE T RU TH . HE CAN'T A CCEPT H IS C LI ENT' S ANSWER?

IN THIS PARTI CU LA R C ASE H E RUSHED HEA DL ONG I NT O A C OURSE OF A CT IO N W HI CH EFFEC TIVE LY H E WAS ACT IN G - - T HE A TT ORNE Y W AS ACTING AS AN AGE NT OF THE STATE.

CHIEF JUSTICE: LET'S ASSUME WE AGREE THAT , YOU KNO W , A LAWYER SHOULD HAVE JUS T T OLD H IM NOT T O SAY A NYTH IN G AND WE'VE A LREADY HELD THAT T HE CON FESSION W AS V OL UNTA RY . SO WHAT WOULD B E THE REM ED Y I N THIS CASE IF WE F OUND T HA T M R. HETHERINGTON W AS DEFICIENT?

WELL, M R. H ETHE RING TO N W AS B EING LED T O B EL IE VE THA T I F HE C OO PE RA TE D W IT H LAW ENFORCEMENT THAT H E W OU LD AVOID THE D EATH PEN AL TY , T HA T IF HE COOPE RA TE D W IT H LAW ENFORCEMENT THAT ANY COO PERATION WOULD B E CONSIDERED AS M ITIGATION.

CHIEF JUSTICE: BUT WHAT ARE YOU ASKING THEN? WHAT WOULD BE T HE R EM ED Y BECAUSE UNDER PREJUDICE, T HE QUESTION IS THA T D OE S T HI S UNDERMINE OUR C ONFIDENCE IN THE O UT CO ME? T HERE HAS BEEN N OTHING ABOUT ANY OF THIS , OT HE R T HA N , YOU KNOW, AGAIN THIS IDEA THA T SOMEBODY THAT IS GUILTY SHOULDN'T BE C ON FE SS ING THEIR GUILT TO THE POLICE , BUT THE RE IS NOTHING THAT HAS B EE N P UT FORTH THAT W OULD Q UE STIO N THE F ACT THA T THE SE - - T HA T T HE STATEMENTS OF H IS I NVOL VE ME NT WERE T RU E AND T HA T H E , I N F AC T , WAS THE S HOOT ER A ND C OMMI TT ED THESE MURDERS?

WELL , THERE W OULD B E T WO POSSIBLE R EMED IES . ONE , B ECAUSE T HE R EPRESENTATION BY T HE A TTOR NE Y THAT WAS SO D EF ICIE NT T HA T THERE WAS REALLY N O ADV ERSARIAL T ES TING WHATSOEVER. THE STA TE'S CASE THROUGH THE ATTORNEY'S ACTIONS H E ESSENTIALLY CLEARED T HE C AS E WITHIN SEVEN DAYS FOR L AW ENFORCEMENT, COMPLETELY CLEARED THE CASE.

WELL, HOW DO Y OU REA LLY G ET TO THAT POINT? THAT SEEMS LIKE S UCH A L EA P HERE. BECAUSE THE A TT ORNEY SAYS SPECIFICALLY, YES, HE GOT SOM E INFORMATION FRO M LAW ENFORCEMENT A BOUT T HESE VARIOUS CRIMES THAT H AD T AKEN PLACE, BUT THA T H E ALS O SAYS S PECIFICALLY THAT HE TALKED T O HIS CLIENT, THA T H IS CLIENT TOLD HIM UNE QU IV OCAL LY THA T H E HAD N OTHING TO D O W ITH T HE ABDUCTION OF THE L ADY A ND T HA T - - S O W HAT I S THE A TTOR NE Y SUPPOSED TO DO? THE CLIENT HAS TOLD H IM U NH E QIF IK A LL EY A ND H AS - - UNEQUIVOCALLY THAT HE WANTS TO MAKE A STA TEMENT TO T HE POLICE?

WHAT THE ATTORNEY DID , THOUGH, WIT HI N T HE FIRST T HREE DAYS IS NOT D O A NY INVESTIGATION O R PREPARATION IN THE CASE W ITHIN THE F IR ST THREE DAYS . HE A RR ANGE S FOR - - > > WHEN YOU SAY N O P RE PA RATION , YOU MEAN HE D IDN' T S EN D SOMEONE OUT TO DO W HAT?

TO C HE CK A NY THIN G T HA T H E WAS R ECEIVING WITH RES PE CT T O LAW ENFORCEMENT FROM LAW ENFORCE MENT. HE DIDN'T DO ANY I ND EP EN DENT INVESTIGATION.HE DIDN'T C HE CK A NY OF T HE WITNESSES WHO ALLEGEDLY SAW THIS CAR BEING S TO LEN. > > CH IEF JUSTICE: CAN I J US T BECAUSE YOU ARE IN YOUR R EBUTTAL I WANT TO M AK E S UR E LET'S JUST ASSUME T HA T A NO TH ER LAWYER WOULD HAVE DONE IT DIFFERENTLY . JUST QUICKLY , WHA T IS THE REMEDY? WHAT ARE YOU ASKING THE COURT TO DO?

TWO R EM EDIES. FIRST OF ALL BECAUSE T HE REPRESENTATION WAS SO DEFICIENT AND THERE WAS NO INVESTI GATION OR P REPARATION WHATSOEVER THAT HE COULD BE GRANTED A NEW T RI AL W ITHO UT T HE S TATE MENT COM IN G I NT O EVIDENCE. HOWEVER, THE ULTIMATE R EM EDY WOULD BE TO G RA NT MR. P HILMOR E A LIFE S ENTE NC E B EC AUSE H E WAS BEING LED TO B ELIE VE AND PROMISED OR NOT - - T HE RE WASN'T AN O UT RIGH T P RO MISE BUT HE WAS LED TO BEL IE VE I F H E GAV E COOPERATION TO THE STA TE THAT EVERYTHING WOULD BE OKAY.

AND WHA T C AS E IS T HE RE T HA T WHERE WE HAVE H ELD THAT YOU ARE A LLEGING A N INE FFEC TIVE ASSISTANCE OF COUNSEL C LAIMTHAT THE REMEDY F OR INEFFECTIVE ASSISTANCE I S N OT A N EW T RIAL WIT H A N EW L AWYER , BUT S IMPLY A LIF E S ENTE NCE. W HERE HAVE W E EVE R D ON E T HAT?

WELL, THE S IT UA TI ON I S T HA T THE S TATE REALLY W AS K IN D O F INV OLVED IN THI S T HE Y W ER E MAKING STATEMENTS TO MR. PHILMORE.

JUST ANSWER THAT QUESTION. WHERE HAVE WE EVER H EL D THAT THAT'S THE APPROPRIATE REM EDY FOR INEFFECTIVE A SSISTANCE OF COUNSEL?

IT'S A D IFFI CU LT SIT UATION, YOUR HONOR, B ECAUSE IT IS SO UNUSUAL THAT A N A TTOR NE Y COM ES ON BOARD AT SUC H A N E ARLY STAGE AND IN SUCH A SERIO US MATTER A ND R EA LL Y I N E FFEC T CLEARS THE CASE FOR T HE STATE.

CHIEF JUSTICE: THAT'S AGAIN GOING BACK TO WHAT JUS TICE QUINCE SAID WHICH IS BECAU SE THIS PARTI CULAR D EF ENDA NT I NSISTED THAT HE W AS INN OC EN T OF THIS , DI D NOT - - WAS NOT CANDID WITH H IS L AWYE R AND H E OVE R AND O VER A GA IN MR. HETHERINGTON AND H E STA TED THAT HE KEPT O N A SKIN G HIS CLIENT AND HIS CLIENT S AID , N O , HE DIDN'T HAVE ANYTHING TO DO WITH IT AND THE N H E K EP T ON GETTING WORSE AND W ORSE SO IT LOOKS TO ME LIKE I T W AS MR. PHILMORE THAT I S NOT O NL Y RESPONSIBLE IN TERMS OF T HE MUR DER BEING THE SHOOT ER BUT RESPONSIBLE FOR WHERE H E FOU ND HIMSELF WHEN H E C ONFE SS ED T O P OLICE. BUT I KNOW T HA T J USTI CE L EWIS , JUSTICE BEL L - - J US TICE QUI NC E , DID YOU HAVE ANY FUR THER QUESTIONS? AND JUSTICE LEWIS, DO YOU HAVE ANY QUESTIO NS? WELL, IF YOU W AN T T O U SE - - SAVE THE REST OF YOU R T IM E F OR REB UTTAL.

THANK YOU . > > GOOD MORNING, MAY I T PLEASE THE COURT, LESLI E C AM PB EL L WITH THE ATTORNEY GENERAL'S OFFICE. ON BEHALF OF THE STATE OF FLORIDA. MR. PHILMORE DID PLACE HIMSELF IN THE P OS ITION O F CONFE SS ING TO THE POL IC E. M R. PHILMORE'S FULL CONFESSION IS AND SHOULD BE PLA CED DIRECTLY WHERE IT HAS B EE N PLACED BY THIS C OU RT A T MR. PHILMORE'S FEET .

W HA T W AS T HE - - W HE N A N ATTORNEY IS APPOINTED , I S T HE ATT ORNEY GIVEN T HE S CO PE O F WAS THIS A TT ORNE Y GIVEN THE SCOPE OF HIS APPOINTMENT? WAS HE T HERE F OR T HE R OBBE RY AND T HE T RESP AS S A ND A P OSSIBLE A BDUCTI ON O R W HA T - - OF COURSE HE H AD N OT B EE N CHARGED WITH ABDUCTION BUT WHAT WAS HE TOLD ABOUT THE SCOPE OF HIS APPOINTMENT?

M R. HET HERING TON WAS APPOINTED FOR THE R OBBERY AND THE TRESPASS. THAT WAS HIS A PP OI NT MENT. HOWEVER, HIS CLIEN T IS TEL LING HIM, I WANT TO C LE AR M Y N AM E FROM T HIS - - F RO M T HE ABDUCTION AND THE K ID NA PP ING . SO ALL OF T HE QUE ST IO NING A ND T HE POLICE WERE ALS O INTERESTED I N ANY TH IN G MR. PHILMORE WOULD HAVE TO SAY ABOUT THE K ID NA PPIN G A ND - -.

CHIEF JUSTICE: BUT AT THE POINT WHEN HE INV OKED H IS RIGHTS T O A N A TTORNE Y , W HI CH MIRANDA SAYS YOU HAVE THE RIGHT TO REMAIN SIL EN T. YOU HAVE THE RIGHT TO AN ATTORNEY. WERE THEY STARTING TO QUEST ION THAT HE HAD B EEN ARRESTE D FOR THE ROBBERY ?

BUT H E H AD N'T B EE N A RR ESTE D YET , YOUR HONOR. THE ROBBERY AND THE T RESP ASS HE WAS BEING Q UEST IONE D A BOUT THAT.

CHIEF JUSTICE: HAD HE NOT BEEN ARRESTED FOR A NYTHING?

HE HAD NOT BEEN A RR ES TED UNTIL AFTER HE SPOKE ABOUT THE ROBBERY AND THE TRESP ASS.

CHIEF JUSTICE: WHAT W AS HE BROUGHT INTO QUESTIONING FOR?

REGARDING THE ROBBERY A ND THE TRESPASS.

CHIEF JUSTICE: SO THEY ARE ASKING HIM ABOUT THAT. DO THEY THEN START TO ASK ABOUT THE ABDUC TION?

DETEC TI VE B AC H W HO W AS QUESTIONING HIM ON THE 15TH , THE E ARLY M ORNI NG H OURS OF THE 15TH, THEY WERE ARRES TED ON THE 1 4TH IN THE ORA NG E G ROVE AND THEY WERE BEING QUE ST IO N ED IN MARTIN COUNTY BY DETECTIVE BACH AND A FBI AGENT WITH REGARD TO THE R OBBERY.

CHIEF JUSTICE: SO THEY WERE ARRESTED?

THEY WER E TAKEN I NT O CUSTODY.I GUESS THEY WERE ARRESTED B UT NOT C HARGED. I APO LOGI ZE . T HEY WERE NOT CHA RG ED A ND THEY WERE NOT FORMALLY ARR ES TE D O N THOSE C HARGES UNTIL A FT ER M R. P HILMORE SAID, YES , I W AS INVOLVED IN THE ROBBERY.

CHIEF JUSTICE: THAT W AS B EFORE HE I NV OKED H IS RIG HT T O AN ATTORNEY?

BEFORE HE I NV OKED H IS R IGHT TO AN ATTORNEY.

CHIEF JUSTICE: SO HE H AS ALREADY IMPLICATED H IM SELF IN THE ROBBERY. ARE THEY NOW S TARTING TO QUESTION HIM ABOUT THE ABDUCTION?

NO.

CHIEF JUSTICE: THE N HE CONFESSES AND THEN HE SAYS I WANT AN ATTORNEY?

DETECTIVE BAC H WAS T AL KING ABOUT THE ROBBERY, A ND T HEN MR. PHILMORE, AND THIS CAME OUT ALL IN THE S UP PR ES SION HEARING THAT IS I N THE R EC OR D ON APPEAL. MR. BACH, D ETEC TIVE B AC H W AS UNDER T HE I MPRE SS IO N T HA T MR. PHILMORE WANTED TO SPEAK FURTHER. MR. PHILMORE SAID AFTER H E SPOKE ABOUT THE R OBBERY, I DON'T WANT TO GO ANY FURTHER UNTIL I T AL K T O A N ATT ORNE Y . AND THE I NTERAC TI ON T HA T DETECTIVE B ACH A ND MR. PHILMORE HAD L ED DET ECTI VE BAHAMA B ACH T O BEL IEVE T HERE WAS MORE TO COME AND THA T ALS O MR. PHILMORE SAID, LOOK , I'M NOT GOING TO TELL YOU WHO WAS INVOLVED IN THE ROBBERY WITHME, BUT O NCE YOU RUN T HE FIN GERPRINTS ON THE CAR YOU WILL KNOW WHO WAS WITH ME . SO DET EC TI VE B AC H S TO PP ED T HA T I NTERVIEW.

CHIEF JUSTICE: SO NOW HE INVOKED HIS RIGHT AND GOING BACK SO WHAT WAS IT THAT MR. HETHERINGTON W AS B EING C ALLED INTO WHEN S OM EONE S AY S , YOU KNOW, I'M I NVOK IN G Y OU NEVER REALLY SEE THIS, YOU KNOW, USUALLY I GUESS WHEN THEY HAVE THAT TER M L AWYE R UP , YOU KNOW , T HEY DON'T SAY A NYTHING MORE. SO WHAT WAS IT T HAT MR. HETHERINGTON WAS BEING CALLED IN TO DO? WAS HE B EING CALLED IN J US T TO ADVISE M R. P HI LM OR E O N WHE TH ER H E SHO ULD C ON TINU E T O T ALK O R NOT OR WAS HE BEI NG A SK ED T O REPRESENT H IM O N C HARG ES ?

I THINK IT WAS A N E VOLV IN G MATTER WITH M R. P HILMOR E. HE CLEARLY WAS APP OI NT ED O N THE ROB BERY AND T HE TRE SP AS S. THAT WAS THE APP OI NTME NT . MR. P HILMORE ASKED HIM W AS EVOLVED IN TRYING TO CLEAR HIS NAME SO M R. H ETHERI NG TON W AS HELPING HIM MAKE THAT D EC ISION AS TO WHETHER OR NOT TO TALK TO THE POLICE. BASED ON MR. PHILMORE W AN TI NG TO CLE AR HIS N AME , M R. PHILMORE SAID I WAS N OT INVOLVED.

CLEAR HIS NAME OF WHAT?

OF T HE K ID NA PPIN G , O F T HE ABDUCTION , OF T HE C AR JACK IN G , OF THE MURDER. I WAS N OT INV OLVED AT A LL I N ANY OF THOSE THINGS.

CHIEF JUSTICE: SO B UT I F THAT HADN'T EVEN BEEN T HE SUBJECT -- DID THE POL ICE K NO W THAT THAT A BD UC TION AND CARJACKING HAD TAKEN P LA CE ?

YES, AND MAYBE IT W OULD B E HEL PFUL TO T HE COURT TO DO A LITTLE, A QUICK H IS TO RY O F THIS CASE. M R. PHILMORE AND M R. S PA NN WERE ARRESTED R UNNI NG OUT O F A N O RANG E G ROVE , R UNNI NG INT O AN ORANGE GROVE. THEY WERE IN T HE G OL D L EXUS T HAT BELONGED T O MIS S P ERRO N. THE POLICE HAD A LREA DY B EE N I N SEARCH OF A GOL D LEX US A ND A S UBARU BASED ON THE B ANK ROBBERY.THEY HAD THE SUB ARE YOU IN THEIR -- S UB AR U I N T HEIR POSSESSION AND A BLO OD Y SHI RT . WHAT PRECI PI TATE D T HE CHA SE FOR THEM IS T HA T M R. SPA NN HAD AN OUT ST ANDI NG WAR RANT FROM TALLAHASSEE FOR MURDER. THEY HAPPENED TO GO BACK DOWN FROM INDIAN TO WN A FTER T HE ROBBERY B ACK DOWN TO W ES T PAL M AND THEY HAPPENED TO BE SPOTTED BY AN U ND ERCO VE R OFFICER IN THAT ARE A W HO K NE W MR. SPANN AND KNEW THAT T HERE WAS A WARRANT FOR H IM . A C HA SE E NS UE D A ND T HE Y GOT ALL OF THE WAY UP T O M ARTI N COUNTY, THE T IR E B LE W , AND THEY RAN I NTO A G ROVE . SO NOW THE POLICE H AV E THE S UBARU AND THE L EX US AND THE Y HAVE THE TWO IND IVID UALS . THEY ALSO HAD B EE N I N S EARC H OF A GOLD L EXUS A ND THE P OL IC E HAD BEEN I N S EARC H O F M IS S P ERRON BECAUSE HER H USBAND HAD REPORTED HER MIS SING . SO ALL OF T HI S C OMES T OGET HER.

CHIEF JUSTICE: OBV IO USLY THEY WERE Q UESTIONING HIM ABOUT, I MEAN T HOSE ARE ALL CON NECTED UP , SO I MEA N --

THEY W ERE QUESTIO NI NG H IM ABOUT IT, B UT D ETEC TIVE B AC H HAD NOT B EEN QUE STIO NING HIM ABOUT IT BECAUSE THAT WAS BEING DONE B Y W EST PALM BEA CH . ONCE MR. PHI LM ORE S TARTED TALKING ABOUT THE MURDER AND THAT HE HAD NOTHING TO D O WITH IT AND HE HAD NOTHING TO DO WITH THE ABDUCTION.

CHIEF JUSTICE: THAT WAS AFTER SPEAKING W ITH M R. HETHERINGTON?

THAT'S CORRECT.

CHIEF JUSTICE: SO NOW WE GO BACK TO MR. H ETHE RING TO N BELIEVED HE WAS THERE T O REALLY ADVISE ON ALL OF THE SE ISSUES, RIGHT? IT IS NOT LIKE HE SAYS , W ELL , I REALLY I W AS H IR ED O R I W AS RETAINED FOR THE MURDER I M EA N FOR THE ROBBERY B UT NOT F OR THE K IDNA PP IN G , I M EA N HE IS NOT SAYING THAT?

NO , H E WAS N OT S EP ARAT IN G T HEM AND HE D IDN' T S EP AR ATE THEM IN E IT HER HIS T ESTIMONY AT THE SUP PR ESSI ON HEA RING O R HIS TES TIMONY AT THE EVIDENTIARY HEARI NG . HOWEVER, H E W AS A PPOI NT ED O NL Y F OR THE K ID NA PPIN G AND I M EA N EXCUSE ME FOR T HE R OBBE RY A ND THE TRESPASS .

NOW, THE T ESTIMONY HE G AV E WAS, C ORRECT ME I F I 'M WRONG, THAT THE D EFEN DANT - - H E A SKED THE DEFENDANT DID YOU DO T HE SE THINGS, AND THE D EF ENDANT S AI D I DID NOT A BD UC T -- DI D NOT MURDER, A ND I W AN T TO T ALK ABOUT T HOSE THINGS AND COU NSEL SAID YOU NEED TO TELL ME THE TRUTH.HE SAID T HAT'S THE TRUTH , A ND T HEN HE S AI D S OMET HING COMPLETELY DIFFERENT TO THE POL ICE?

HE S AID S OMETHING COMPLETELY DIFFERENT TO THE POLICE DURING T HE P OL YGRAPH , YES, BUT HE H AD G IV EN A STATEMENT ON THE 1 8T H COM PLETELY EXC UL PATORY . I WASN'T THERE. I DIDN'T KNOW ANYTHING ABOUT THE ABD UCTION AND I DIDN'T KNOW ANYTHING ABOUT THE MURDER.

AND DEFENSE COUNSEL HADTHIS WHEN HE WAS ADV ISING T HE DEFENDANT, THE O RIGI NA L S TATEMENT ?

ON THE 15T H THE RE WAS A STATEMENT THA T THERE WAS I NVOLVE MNT IN THE R OB BERY AND THE TRE SPASS. ON THE 1 8T H A FTER MR. HETHERI NGTON HAD D ON E SOM E INVESTIGATION, HAD SPOKEN TO THE DEFENDANT'S MOTHER , K NE W ABOUT M R. SPA NN 'S MUR DE R CHARGES AND ALSO HAD TAL KE D T O HIS CLI ENT AND K NE W SOM ET HING ABOUT W HAT HIS CLI EN T W AS TELLING H IM , O N THE 1 8T H MR. PHILMORE GIVES A S TATE ME NT SAYING I HAD NOTHING TO DO WITH THE ABDUCTION OR T HE MURDER . > > AND THE ATT OR NE Y W AS THERE WHEN THIS --

FOR THAT STA TEMENT, T HE ONE ON THE 1 8T H. FOR THE ONE ON THE 2 0T H WHI CH WASN'T A STATEMENT IT WAS SUPPOSED TO BE A POLYGRAPH T O CONFIRM A ND THE STA TEME NT O N THE 1 8T H , MR. H ETHE RING TO N W AS NOT P RE SE NT . AND IT WAS DUR ING T HI S P REPO LY INT ERVIEW THA T M R. P HI LM OR E SAYS, YES, I WAS THERE F OR T HE A BDUCTION. THAT INTERVIEW WAS S TOPPED. MR. HETHERINGTON THEN S PEAK S AGAIN WITH HIS C LI EN T AND IS ASSURED THAT HIS CLIENT IS NOW TELLING HIM THE TRUTH THA T I T WAS JUST THE ABD UC TI ON BUT THAT HE WASN'T THERE F OR T HE MURDER. HE DID NOT COMMIT THE MUR DE R. HE IS NOT THE S HOOTER.

AT THIS POINT H AVING T ALKED TO THE MOTHER AND T AL KE D T O MR. PHILMORE , W HA T W OULD , F RO M THE RECORD , MR. H ET HERI NGTO N HAD KNOWN ABO UT H IS COM PETE NC Y ?

FROM THE RECORD I DON'T THINK THERE I S ANYTHING THAT SHOWS HE IS INC OM PE TENT . I D ON'T B ELIE VE THA T T HE Y S POKE A BOUT THO SE - - YOU KNO W , REALLY --

Y OU R O PPON EN T MEN TI ON ED THERE SHOULD HAVE B EE N S OM E SIGN OR HE S HOULD HAVE BEEN AWARE THAT HE HAD COMPETENCY ISSUES.

I THINK WE'RE LOOKI NG A FTER THE FACT AS TO WHAT H E MAY O R MAY N OT HAVE - - M AY O R MAY N OT HAVE KNOWN OR SHOULD H AVE KNOWN BASED O N , Y OU KNO W , YEARS OF INV ES TI GATI ON AFT ERWARDS. > > I S T HERE A NYTH IN G , T HE NURSING INT AK E I NT O T HE J AI L OR ANYTHING AT THE TIME THAT WOULD HAVE PUT A R EA SO NA BLE ATTORNEY ON NOTICE THAT MR. PHILMORE WAS NOT COMPETENT?

I THINK THERE IS NOTHING IN THE RECORD THAT WOULD SHOW THAT A R EASONABLE PERSON W OULD HAVE THOUGHT T HA T M R. P HI LMOR E WAS N OT C OM PETENT O R ABL E T O DISCUSS MATTERS WITH T HE POLICE.

BUT WE ARE AT A P OINT H ER E WHERE MR. H ET HERI NGTO N H AS BEEN ASSURED BY H IS C LIEN T THAT HE H AD NOTHING T O D O WIT H THE ABDUCTION , T HE C ARJA CK IN G , MURDER OF MI SS P ER RON . YET, YOU K NOW , A COU PL E O F DAYS LATER M R. PER RO N I N T HE P REINTERVIEW THEN SAY S , YES , I WAS THERE WHEN THE A BD UCTION TOOK PLA CE. DON'T YOU THINK T HA T AFT ER HAVING T HI S A SS UR AN CE T HAT I HAD NOTHING TO DO WITH ANY OF THIS, NOW W E G ET A STA TE ME NT THAT SAYS , WEL L , Y ES , I WAS T HERE, BUT A R EASO NA BL E ATTORNEY WOULD THEN HAV E BEEN PUT ON SOME KIND OF NOT IC E T HAT I CAN'T REL Y O N WHA T T HI S MAN IS TEL LI NG M E , YOU KNO W, THE BETTER P AR T OF V AL OR H ER E WOULD BE TO TELL HIM N OT T O SAY ANYTHING FURTHER U NTIL W E HAVE HAD S OM E TIM E T O D IS CUSS THIS, TO D O SOM E I NV ESTI GA TION , B ECAUSE IT I S O BVIOUS NOW THAT THE CLI ENT IS NOT TELLING HIM THE TRUTH.

WELL, IT IS O BVIO US T HAT THE CLIENT DID N' T TELL H IM T HE TRUTH REGARDING THE ABDUCTION. HOWEVER, M R. HET HERING TO N D ID DO INVESTIGATION, AS I MENTIONED BEFORE HE HAD SPOKEN TO M R. P HILMOR E' S M OTHER AND HE KNEW MR. SPANN'S BACKGROUND. ALSO BY ADMITTING TO THE ABDUCTION, NOW WE HAVE A BOTTOM LINE OF F EL ON Y MUR DE R , LIFE IN PRISON. S O M R. H ET HE RING TON I S N OW LOOKING AT WHAT HE SHO UL D ADVISE HIS CLIENT TO DO I N THAT SITUATION , AND O F C OURSE IT WOULD BE BETTER TO B E T HE NONSH OOTER C OO PERATI NG W ITNESS. THAT IS W HA T M R. HETHE RI NGTON WAS L OOKING AT. HE IS ALSO LOOKING AT T HE F ACT THAT MR. SPANN IS THE ONE W IT H THE VIOLENT B AC KG ROUN D .

CHIEF JUSTICE: WOULDN'T IT HAVE BEEN AND AGAIN I REALI ZE SOME OF T HIS IS , Y OU K NO W , SECONDGUESSING O R H INDS IGHT A ND AGAIN I'M T RO UB LE D B Y WHAT THE R EMEDY WOULD BE , A NYWA Y. I REMEMBER WHEN I L OO KED A T THIS CASE ON DIRECT A PPEAL AND I SAID MY GOODN ES S , T HI S G UY HAD AN ATTORNEY A ND H E I S CONFESSING TO A LL OF T HE SE THINGS. IT SEEMS KIND OF UNUSUAL. WOULDN'T HE HAVE WANTED T O G ET , LISTEN, M Y CLIENT IS G OING T O T ESTIFY BUT CAN YOU G IV E M E SOME A SS UR AN CE T HA T H E W ILL GET A L IFE SEN TE NC E I F H E E ND S THIS ON M R. SPA NN ? AND ONCE THAT DOESN'T HAPPEN YOU CAN'T FAULT THE ATT OR NE Y BUT WOULDN'T YOU EXPECT THAT AT LEAST HE WOULD HAV E T RIED TO WORK OUT S OM E D EA L W IT H T HE STATE, YOU KNOW , IF M Y CLI EN T T ESTIFIES TRU TH FULLY AND PUT S THE - - A S J US TI CE A NS TEAD WAS SAYING AT THE VERY BEGINNING, YOU KNOW , B E T HE FIR ST ONE T O SPILL THE BEANS A ND GET THE DEAL WITH THE STATE. SO DID ANY OF THAT, WAS EVOLVED IN TRY IN G T O GET HIS CLIENT A L IFE S EN TE NCE I F HIS CLIENT WOULD TESTIFY HONESTLY ?.

I WILL POINT YOUR HONOR AGAIN TO THE SUPPRES SION HEARING, AND IT WOULD B E MR. BAKKEDAHL'S, T HE A SSIS TA NT STATE ATTORNEY ON T HIS AND ALSO TO M R. HET HERING TO N 'S TESTIMONY. THERE WAS N O Q UI D PR O Q UO . H OWEVER, THE S TATE ALS O MADE IT CLEAR T HA T THEY W ER E N OT GOING TO BE OFFERIN G A NY P LE AS UNTIL T HEY BEL IE VE D THA T THE Y K NEW WHAT HAD HAPPE NE D. THEY WEREN'T JUST GOING T O O FFER ANYONE A L IF E S ENTE NC E UNTIL THEY HAD SOME S OR T O F COMFORT LEVEL I N A B EL IEF T HA T THE Y KNEW WHAT THE FACTS WER E .

IN OTHER WORDS YOU ARE SAYING THAT THE P OLYGRA PH WAS A PREREQUIS IT E T O ANY PLEA NEGOTIATION?

A PASSING OF A POLYG RAPH WAS A P RE REQU IS IT E T O GOI NG FORWARD AND JUST B ECAU SE M R. PHILMORE IS UNA BL E T O L IE SUCCESSFULLY SHOULDN'T BE BLAMED ON H IS ATTORNEY. H IS ATTORNEY FELT C OM FORT ABLE WITH WHAT HE KNE W A T THE T IME SAYING, LOOK , I F Y OU W ER E N OT INVOLVED. IF YOU REALLY ARE T ELLING ME YOU ARE NOT I NVOLVED , OKAY , LET'S GO IN A ND Y OU C AN CLE AR YOUR NAME. OF COURSE THE N EXT STEP I S M R. PHILMORE ADMITS T O SOMETHING BUT AGAIN MR. HETHERINGTON IS STILL CONFIDENT THAT AT L EA ST MR. PHILMORE ISN'T THE SHOOTER, BECAUSE HE HAS T HE M ORE VIOLENT PERSON I N JAI L A ND I N MR. SPANN. HE HAS AN O UTSTAN DING WARRANT FOR A MURDER A LR EA DY , AND HE IS ALSO A K NOWN SUSPECT F OR MANY OTHER WES T P AL M M UR DERS AND IN S PE AKIN G TO MR. PHILM ORE'S MOTHER, THERE WAS A C OMFO RT LEV EL T HA T H E PROBABLY WAS NOT THE SHOOTER. T HEREFORE, M R. H ETHE RI NGTO N I S TELLING H IS CLIENT , DO N OT TALK TO THE POLICE IF YOU ARE THE SHOOTER. LET'S STOP IT RIG HT NOW, AND MR. PHILMORE IS SAYING , NO , N O , IT'S OKAY. I'M NOT THE SHOOTER. I'M GOING T O GO FOR WARD . MR. P HILMORE IS UNA BL E T O LIE SUCCESSFULLY IN THE SECOND POLYGRAPH.

HOW OLD IS MR. P HILMORE?

AT THAT POI NT H E WAS 2 1 I B ELIEVE.

CHIEF JUSTICE: AND HAD H E HAD A HISTORY O F I NVOL VEMENT WITH, JUST REFRESH M Y R ECOLLECTION ON THAT?

HE HAD A C RI MI NA L H IS TO RY FROM JUVENILE AND ALS O OTH ER ROBBERIES. IN FACT, TWO OF THE A GGRA VA TOR S W ERE FOR ROB BERI ES IN N OVEMBER OF ' 97 JUS T S HO RT LY BEF OR E THIS WIL L MURDE R , A ND I BELIEVE HE ALSO HAD A B AT TE RY ON A COR RECT IO NS OFF ICER F OR SOMETHING THAT HAD HAPPENED , I BELIEVE IN '95 A C OU PL E O F YEARS EARLIER T HAN T HA T S O H E HAD EXPERIENCE WITH L AW ENFORCEMENT. AS HE SAID , HE K NE W T HR OU GH OUT H IS S UP PRESSION HEARING, H E KNEW HE HAD THE RIGHT TO TALK OR NOT TO TALK TO T HE P OL IC E , AND THI S C OU RT H AS ALR EA DY FOUND THAT THAT WAS A VOLUNTARY WAIVER. SO M R. H ETHE RINGTO N W AS COMFORTABLE WITH W HA T MR. PHILMORE IS TELLING HIM, NOT ONLY BASED ON W HAT MR. PHILMORE IS TEL LING HIM BUT WHAT OTHER I NV ES TIGATI ON HE DID D O . MERELY BEC AUSE M R. P HILM OR E ENDS U P C ONFE SS IN G T O THE CRI ME AFTERWARDS, EVE N T HOUGH MR. HETHERINGTON TELLS HIM NOT TO SPEAK IF HE IS INV OLVE D. MR. HETHERINGTON DID TRY A ND GET ADDITIONAL MITIGATION F OR HIM , R EMOR SE , Y OU K NO W , COOPERATION WITH THE POLICE , ALL OF THOSE W HICH A RE ACCEPTABLE, M ITIGAT OR S T O T HI S COURT, SO THA T N OT E VERYTH ING WAS LOS T E VE N T HOUG H MR. PHILMORE CONFESSED FULLY TO THIS CRIME. UNLESS THERE ARE A NY OTHERQUESTIONS OR IF THE C OURT WISHES ME TO D ISCUSS I SSUE ONE.

JUST O NE Q UI CK ONE. YOUR OPPONENT MEN TI ONED THAT COUNSEL SHOULD DO M ORE INVESTIGATION, BUT IT IS ACTUALLY WHO WAS THE SHOOTER, DID THE ULTIMATE FACTS EVE N I N HINDSIGHT SHOW THAT IT W AS ONLY T HE T WO - - TH ER E WER E N O WITNESSES OF THE ACTUAL SHOOTING, AND THE ONL Y WITNE SSES WERE T HOSE W HO PARTICIPATED.

AND T HO SE ARE T HE O NL Y T WO THAT WOULD KNOW WHAT H APPENED AT THAT T IME. WHAT OTH ER INV ESTIGATION COULD BE, YOU KNO W , W OULD SHO W OTHE R THAN ONE OF THEM C ONFE SS ING TO BEING THE SHOOTER , T HE RE WASN'T A NY F OR EN SI C OTH ER T HA N MR. PHILMORE'S SHIRT BEING FOUND AT THE SCENE W ITH BLO OD ON IT. I SUPPOSE THAT THA T COU LD - - THEY COULD DRAW A CON CL USIO N FROM THAT THAT IT REALL Y WAS MR. PHILMORE BUT THAT HADN'T BEEN TESTED YET . THANK YOU. I R ELY ON M Y B RI EF T O A SK THI S COURT T O U PH OL D T HE T RIAL COURT'S DENIAL OF POST-CONVICTION RELIEF, AND ALSO TO DEN Y A NY H ABEA S RELIEF.

CHIEF JUSTICE: THANK YOUVERY MUCH. MR. VIGGIANO, R EB UT TAL?

IN REB UT TA L , WHAT HAP PENE D ON THE 1 5T H FROM THE PERSP ECTIVE LAW ENF OR CEME NT , FROM THE PER SP EC TI VE MR. P HILMORE AND M R. HETHERINGTON IT WAS ALL ABOUT THE ABDUCTION. IT WASN'T ABOUT THE TRE SPAS S AND IT WASN'T ABOUT THE ROBBERY . APPOINTED A TTORNEYS DON'T SPEND T WO A ND T HR EE M EE TI NG S WITH THEIR C LIENTS IN THE FIRST FEW DAYS O F R EPRESENTATION MEETI NG T HE M I N 10 A ND 2 0 TIM ES I N T HE IR 1 2-DAY PERIOD ON A T RE SP AS S OR A ROBBE RY. I MEAN THIS W AS ALL A BOUT THE ABDUCTION I N THE BEGINNING .

DID THEY MEE T W IT H T HE M 1 0 AND 20 TIMES THAT KIND O F GOE S AGAINST YOUR ARGUMENT OF INEFFECTIVE ASSISTANCE IF HE IS THAT INVOLVED.

YOUR HONOR , WAS NOT CHECKING OUT W HA T W AS - - H E W AS BEING TOLD BY T HE STATE. HE HAD THIS TIMELINE FR OM T HE STATE.HE HAD WHAT HE BELIEVED THE S TRONG C IR CU MS TANTIAL CASE AND THEN HE GETS A V ER SI ON F RO M HIS CLIENT AND I T I S N OT MATCHING UP B Y HIS OWN ADMISSION AT THE EVI DENT IARY H EARINGS IT IS NOT MAT CHIN G UP YET IN THE FACE OF THIS HIS CLIENT SAYS OH, I WAN T T O CLEAR THIS. I WANT TO GET THIS O VER W ITH , AND HE RUS HE S HIS C LI EN T I N T O LAW ENFORCEMENT TO GIVE A SERIES OF S TATEMENTS.

YOU SAY HIS C LIENT , LET ME STOP YOU RIGHT THERE. YOU S AY HE RUSHE S HIS CLIEN T IN . W AS THERE EVIDENCE AT THE EVIDENTIARY HEARING THAT IT WAS THE CLIENT THAT INS ISTE D ON S PEAK IN G T O THE POL IC E A ND MAKING SURE THAT THE Y UNDERSTOOD A ND ABS OR B - - ABSOLVED HIM OF THE M URDE R , NOT THE LAWYER P USHING T HE C LIENT TO DO IT?

AT THE E VI DENT IARY HEA RING MR. H ETHERINGTON TESTIFIED HE WAS SAY ING THINGS L IK E YOU SHOULD COOPERATE, I T W OU LD B E BENEF ICIAL TO YOU.

DID H E SAY THAT BEFORE O R AFTER HIS C LIENT TOLD HIM THAT HE WAS NOT INVOLVED IN THE ABDUCTION OR THE MURDER?

HE C OU LD N'T R EALLY NAIL I T DOWN BECAUSE HE W AS MEETING WITH THEM OVER A PERIOD OF TIME AND H E COULD N' T SPECIFICALLY SAY WHEN HE WAS SAYING CERTAIN THINGS TO M R. PHILMORE .

IT S EEMS T O M E THAT T HE RECORD SHOWS T HA T F IRST H IS CLIENT SAID I WAS N OT I NVOLVED IN THE ABDUCTION O R T HE M URDER AND THEN THE LAWYER SAID , WEL L , IF THAT'S TRUE AND YOU NEED T O TELL ME THE TRUTH HER E B UT I F THAT'S TRUE THEN Y OU SHO UL D COOPERATE.

BUT H E KNE W I T W ASN' T T RU E BECAUSE H E HAD CONCE RN S ABO UT HOW DID THIS C AR GET F RO M WHERE IT WAS TAKEN A T 1 :0 0 . > > YOU M AY H AV E SUS PE CT ED BUT HOW CAN YOU S AY HE KNE W I T WASN'T TRUE?

HE H AD T O COM PA RE T HE STATEMENTS GIVEN TO HIM BY MR. PHI LMORE TO WHAT HE WAS LEARNING FROM L AW E NFOR CEME NT , COMPARE THE TWO AND HE HAD TO HAVE HIS CON CE RNS , T HERE I S SOMETHING WRONG HERE.

H OW C AN YOU D EDUC T FRO M THAT THAT H E KNEW I T W AS N'T TRUE WHAT HIS C LIENT WAS TELLING HIM?

HE SUR EL Y , H E S USPE CT ED I T WASN'T TRUE FROM THE 15TH TO THE 18T H WHE N MR. P HILM OR E WENT IN A ND G AV E THE S TATE MENT WHERE HE D ID N' T INC ULPA TE HIMSELF. HOWEVER, ON THE 20TH WHEN HE WENT IN A ND ADMITTE D TO T HE ABDUCTION, SURELY HE K NE W THA T THERE WAS AN I NC ON SIST EN CY A T THAT POINT. NOW , HAD H ET HE RI NG TON E VE N SHUT IT D OWN AT THA T T IM E A T LEAST THERE WOULD H AVE B EE N ADVERSE Y AR - - ADV ER SARI AL TESTING.

DIDN'T HE TELL HIM POI NT BLANK DO NOT SAY ANYTH IN G UNLESS YOU ARE TELLING ME T HE ABSOLUTE TRUTH? IT IS I N Y OU R INTER ES T NOT T O SAY ANYTHING IF YOU HAD ANY INVOLVEMENT, WASN'T THAT CONSISTENT THROUGHOUT THE REPRESENTATION?

AND AT THE SAME TIME HE IS TELLING HIM YOU NEED T O G ET THE C OOPERATION. THE PERSON SAID O H, I 'M N OT INVOLVED AND THEN HE SAYS, OKAY, GO AHEAD AND G IVE T HE STA TEMENT. > > BUT WASN'T T HA T O KA Y CONTINGENT AT ALL T IM ES O N W HAT M R. HET HE RI NGTO N W AS LEARNING FROM H IS CLI EN T A S I DIDN'T HAVE ANY INVOLVEMENT, I WASN'T INVOLVED IN THEABDUCTION OR I DIDN'T HAVE ANY I NVOLVEMENT IN THE SHOOTING?

WITHIN T HE FIRST T HREE D AY S , THAT'S WHAT M R. P HI LMOR E W AS TELLING HIM , A ND A GAIN I T WASN'T ADDING U P , THE T WO - -

S O WHA T M IS ADVI CE D ID MR. HETHERINGTON GIVE T O MR. PHILMORE?

HIS M IS AD VICE WAS UND ER THESE C IRCUMSTANCES DO NOT MAKE ANY STATE MENTS T O L AW ENFORCEMENT OR ANYONE , N O CELL MATES OR ANYONE U NDER ANY CIRCUMSTANCES BECAUSE ALL THA T HAPPENED AS A RESULT OF THIS IS HE E ND ED U P A CT IN G A S A N A GENT OF THE STATE.

BUT THAT ADVICE W AS B AS ED UPON HIS C LI ENT' S R EP RESENTATION OF THE N ATUR E OF HIS INVOLVEMENT H OW C AN I T BE DECLARE D MIS AD VICE ?

WELL , S UREL Y I T WAS MIS AD VICE AT THE 20T H W HEN HE LEA RN ED THAT HIS