The following is a real-time transcript taken as closed captioning during the oral argument proceedings, and as such, may contain errors. This service is provided solely for the purpose of assisting those with disabilities and should be used for no other purpose. These are not legal documents, and may not be used as legal authority. This transcript is not an official document of the Florida Supreme Court.
Kenneth Hartley v. State of Florida
SC04-1387
>>> ALL RISE.
PLEASE RISE. HEAR YE HEAR YE HEAR YE. SUPREME COURT OF FLORIDA IS NOW IN SESSION. ALL WHO HAVE CALL, PLEASE DRAW NEAR, GIVE ATTENTION AND YOU SHALL BE HEARD. GOD SAVE THESE UNITED STATES, THIS GREAT STATE OF FLORIDA AND THIS HONORABLE COURT.
GOOD MORNING.
GOOD MORNING.
LADIES AND GENTLEMEN, THE FLORIDA SUPREME COURT. PLEASE BE SEATED.
GOOD MORNING, FRIENDS AND WELCOME TO THE ORAL ARGUMENT CALENDAR. FOR TUESDAY, NOVEMBER 6th. BEFORE WE BEGIN OUR FIRST CASE, WOULD LIKE TO WELCOME TO THE COURT MEMBERS OF THE TEEN COURT FROM CLAY COUNTY. IF YOU WOULD STAND AND MEMBERS OF THE TEAM CORPS FROM LEON COUNTY WE WELCOME YOU AND YOUR SPONSORS, YOUR TEACHERS, ALL OF THOSE WHO ARE HERE WITH YOU, FOR YOUR FIELD TRIP. YOU HAVE BEEN DOING THIS I KNOW FOR A NUMBER OF YEARS. AND THE ENTIRE COURT THANKS THOSE TEACHERS AND DIRECTORS OF THIS PROGRAM FOR WORKING WITH THESE YOUNG FOLKS. WELCOME. WELCOME TO THE FLORIDA SUPREME COURT.
MAY IT PLEASE THIS COURT, HARRY BRODY REPRESENTING KENNETH HARTLEY, I PARTNER, JEFF HAZEN IS HERE WITH ME. THIS IS AN APPEAL WITH THE -- OF A DENIAL OF THE 3850 RELIEF.
WOULD YOU PULL THE MICROPHONE A LITTLE CLOSER? THERE.
THIS IS AN APPEAL OF A DENIAL OF 3850 RELIEF IN CIRCUIT COURT. WE HAVE THREE PRIMARY ISSUES WHICH WE HAVE ASSERTED ON APPEAL. THE IAC FAILURE TO PRESENT LAY WITNESS TESTIMONY, THE SECOND CLAIM IS NEWLY DISCOVERED EVIDENCE OR GIGLIO EVIDENCE OF MALFEASANCE BY THE PROSECUTOR AND THE THIRD ISSUE IS A GENERAL -- IS A GENERAL DUE PROCESS, OR THAT THE RECORD AND THE SITUATION, REPRESENTATION BELOW IS YOU A GENERAL MESS-TYPE CLAIM SUCH THAT WE BELIEVE OR CLIENT DID NOT RECEIVE A PROPER HEARING AND INVESTIGATION OF HIS CLAIMS AND WE ASK THE COURT TO REMAND THE CASE TO THE CIRCUIT COURT TO CLEAN IT UP.
YOUR CLAIM ABOUT FAILURE TO PRESENT ADDITIONAL WITNESSES IN MITIGATION.
YES, YOUR HONOR.
THE STATE CITES THE TESTIMONY OF THE DEFENSE LAWYER WHO TESTIFIED THAT HE DID VISIT WITH BOTH THE DEFENDANT AND THE FAMILY MEMBERS AND IN ESSENCE REALLY REBUT ANY CLAIM THAT MOST OF THEM -- THE EXPLANATION WAS THAT THEY EITHER DIDN'T WANT TO -- THE PRO FOOTBALL PLAYER BROTHER, FOR INSTANCE, DIDN'T WANT TO JEOPARDIZE HIS NFL CAREER BY BEING ASSOCIATED WITH THE CASE, AT LEAST THIS WAS ACCORDING TO THE TESTIMONY OF THE DEFENSE LAWYER, SO I GUESS MY QUESTION IS, WHY ISN'T THE TESTIMONY OF THE DEFENSE LAWYER REALLY ACTION LONE ANOTHER TO SUPPORT THE TRIAL COURT'S DECISION DENYING THE CLAIM.
HIS TESTIMONY IS NOT THAT CRISP OR CLEAR. AND THE TOTALITY OF THE RECORD REFUTES ANY SUCH STATEMENT.
WHAT IS THE TOTALITY OF THE RECORD?
WELL, REALLY NOT SOME --
TOTALITY --
CONCEPT WE CAN LOOK, TO COSTUME -- COMPETENT, SUBSTANTIAL EVIDENCE, THAT IS, LET'S TAKE JEFFERSON. THE BROTHER OF THE PRO FOOTBALL PLAYER. DIDN'T THE DEFENSE LAWYER TESTIFY THAT EXPRESSLY JEFFERSON DID NOT WANT TO TESTIFY IN THE CASE OR BE ASSOCIATED WITH THE CASE BECAUSE BOTH HE AND HIS FAMILY FELT THAT IT WOULD JEOPARDIZE HIS PROFESSIONAL CAREER.
NO, YOUR HONOR.
TELL ME WHAT THE DEFENSE LAWYER SAID AND THEN LET'S EXPLORE WHETHER OR NOT THAT PROVIDES THE SUFFICIENT BASIS FOR THE TRIAL COURT TO DENY THE CLAIM. WHAT I'M TRYING TO SAY IS --
HE TESTIFIED FOR A GOOD WHILE AND I MADE NOTES, I DON'T THINK THAT HIS STATEMENTS --
WHAT DID HE SAY. YOU TELL ME WHAT HE SAID.
THE GUILT PHASE OF THE TRIAL HE SAID HE FOCUSED ON THE GUILT PHASE. THAT WAS WHERE HE PUT ALL HIS EFFORTS --
HE DIDN'T TESTIFY ABOUT THE MITIGATION CASE?
HE HAD TWO-AND-A-HALF WEEKS. HE DIDN'T LOOK AT THE MITIGATION CASE UNTIL HE HAD LOST THE GUILT PHASE.
TELL ME THE HEART OF THIS IS WHAT HE HAD TO SAY ABOUT WHO HE INTERVIEWED, AND WHAT THE ATTITUDE OF THE FAMILY WAS, THE ATTITUDE OF THE DEFENDANT, AND IN OTHER WORDS, WHAT DID HE HAVE TO SAY ABOUT WHETHER OR NOT HE DID DISCUSS THE POSSIBILITY OF THEM TESTIFYING, AND THEN WHAT WAS THEIR RESPONSE?
HE --
WHAT DID HE SAY.
HE DID TO THE REMEMBER SPEAKING TO ANY OF THEM ABOUT MITIGATION ISSUES. OR ABOUT THE PENALTY PHASE.
I SEE, SO HE DID NOT --
I DON'T REMEMBER.
OKAY.
AND DID NOT -- MR. BRODY, DID HE OR DID HE NOT TESTIFY THAT THERE WAS NO ONE WILLING TO TESTIFY AND ALSO, QUOTE, THEY WERE NOT WILLING TO SUPPORT HIM ANY FURTHER. DID HE NOT TESTIFY TO THAT.
NO, SIR. NOW, WHETHER HE --
WELL, ARE MAKING THE CLAIM, YOU SHOULD KNOW WHETHER HE TESTIFIED TO THAT SINCE IT WOULD REBUT YOUR ARGUMENT.
I TO KNOW ALL OF HIS TESTIMONY ON CROSS-EXAMINATION, I DO NOT BELIEVE THAT HIS TESTIMONY AS A WHOLE CAN BE READ TO SUPPORT THAT HE MET WITH THEM ABOUT TESTIFYING, WOULD YOU TESTIFY, THIS IS WHAT A PENALTY PHASE.
THIS IS WHAT MITIGATION IS, HE NEVER MET WITH THEM AND THEY TESTIFIED, ALL TESTIFIED HE NEVER MET WITH THEM. NEVER TOLD THEM ABOUT MITIGATION.
LET ME TRY AND CLARIFY IT. WHO WAS THE LIAISON BETWEEN DEFENSE COUNSEL AND ALL THE FAMILY MEMBERS?
THERE WAS NO FORMAL LIAISON BUT CHERYL DANIELS, I THINK THE ATTORNEY THAT REPRESENTED HER IN ANOTHER MATTER PREVIOUSLY, AND SHE TESTIFIED THAT HE NEVER TALKED TO HER ABOUT TESTIFYING.
DID SHE TESTIFY THAT SHE TOLD DEFENSE COUNSEL THAT ONCE HARTLEY WAS FOUND GUILTY, QUOTE, THEY WERE NOT WILLING TO SUPPORT HARTLEY ANY FURTHER, CLOSE QUOTE, RECORD, PAGE 2546?
I ASSUME YOUR HONOR IS QUOTING THE RECORD AND HE MAY HAVE SAID THAT. MY REVIEW OF --
SHE. CHERYL.
SHE MAY HAVE SAID THAT, PROBABLY ON DIRECT. BUT I DO KNOW THAT WHEN YOU -- IF YOU READ HER TESTIMONY, ON DIRECT, I'M SORRY, AS WELL AS ON CROSS, THE RECORD SUPPORTS OUR ARGUMENT THAT THIS ATTORNEY DID NOT INVESTIGATE THE CASE. DIT NOD PREPARE THESE WITNESSES. THEY DID NOT KNOW WHAT MITIGATION WAS. AND THEY WERE NOT -- ALL DENIED THAT THEY WERE RUNNING FROM MR. HARTLEY. SO THE SUPPORT -- MR. JEFFERSON PAID ALL OF THE BILLS. I DON'T KNOW IF THEY ARE REFERRING TO SUPPORT AS FINANCIAL SUPPORT. BUT MR. JEFFERSON DID SAY THAT HE LOVED HIS BROTHER, AND WOULD HAVE TESTIFIED. THERE WAS SOME -- AN ARTICLE IN THE NEWSPAPER, EVIDENTLY, AROUND THE TIME OF THE SUPERBOWL, WHICH WAS AFTER THE TRIAL, IN WHICH -- I THINK THAT WAS THE GENESIS OF THIS WHOLE ARGUMENT, REALLY. I THINK IT -- THOUGH, IF YOU REVIEW THE RECORD, IT IS AN AFTER-THE-FACT ARGUMENT THAT IS BEING MADE.
ASSUMING THERE WAS INEFFECTIVENESS, WHAT PREJUDICE WAS THERE IN THIS CASE.
WELL, IT PROBABLY DID -- THERE IS A REASONABLE PROBABILITY IT FAKED THE OUTCOME NP THIS CASE BECAUSE THERE WAS A LOT OF OTHER ERROR IN THIS CASE. WHEN MR. HARTLEY WAS ARRESTED, BASICALLY THE ONLY THING THEY HAD ON HIM WAS THEY SAW HIM AND TWO OTHER MEN GETTING INTO A CAR WITH THE VICTIM THE DAY BEFORE. AND THAT WAS EVIDENCE --
-- [INAUDIBLE] WASN'T THERE A ROBBERY THE DAY BEFORE? AND HE HAD A WITNESS THAT SAW HIM AT LEAST TESTIFY THE SON PUT A GUN TO HIS HEAD?
THERE WAS A ROBBERY A COUPLE DAYS BEFORE. THAT HAD BEEN A PREVIOUS ROBBERY AND THERE WAS A GUN. SIDNEY JONES, WHO, AT THE EVIDENTIARY HEARING ALSO TESTIFIED PREEFL THAT HE HAD BEEN CONVICTED OF PERJURY, AND HAD ALSO HAD MULTIPLE FELONIES.
WHERE ARE WE HEAD NOUD? HAVE YOU FINISHEDDER ARGUMENT WITH REFERENCE TO --
NO, YOUR HONOR AND I'M GOING RIGHT TO --
PENALTY PHASE.
NO, PREJUDICE.
WE ARE MOVING RIGHT ALONG HERE.
YES, YOUR HONOR.
INTO YOUR TIME.
TALKING ABOUT PREJUDICE. THERE WERE SEVERAL -- THE HACKING A VARIETY WAS STRUCK, THE CCP INSTRUCTION WAS UNCONSTITUTIONALLY IMPROPER AND THESE WERE FOUND HARMLESS ON DIRECT APPEAL, BUT, IF YOU TAKE AWAY THE TESTIMONY OF -- PARTICULARLY THE TESTIMONY OF THE JAILHOUSE WITNESSES, THE SNITCHS --
I GUESS WHAT WE REALLY WANT HERE IS WHAT NOW DO YOU SUPPOSE -- WHAT DID YOU SHOW AT THE EVIDENTIARY HEARING THAT IS MORE COMPELLING, MITIGATING EVIDENCE THAN WHAT WAS ALREADY HERE. THESE WITNESSES THAT YOU NOW CLAIM SHOULD HAVE PRESENTED WOULD ADD TO THIS CASE.
WELL, THE HUMAN TOUCH, THE HUMAN ELEMENT. MR. HARTLEY'S REAL FAMILY. THE ONLY EVIDENCE PRESENTED, THERE WERE NO GUILT PHASE WITNESSES, THERE WERE TWO PENALTY PHASE WITNESS AND ONE WAS MR. CHIPPERFIELD AN ATTORNEY WHO TESTIFIED LIFE IS LIFE AND THE OTHER WAS THE FAMILY PREACHER WHO TESTIFIED WAS A GOOD, RELIGIOUS FAMILY. THIS WOULD HAVE MADE HARTLEY REAL TO THE JURY. A REAL MAN WHO WAS WELL LOVED. BY HIS FAMILY. WHO WAS KIND TO PEOPLE. WHO WAS HELPFUL. WHO PEOPLE THROUGH THROUGHOUT THEIR LIFE, WHO, THE DAY HE GOT OUT OF JAIL FORRY A MANSLAUGHTER CONVICTION, A FRIEND TOOK HIM IN. WAS NOT AFRAID OF HIM. THIS WAS NOT THE DANGEROUS PREDATOR THAT THE PROSECUTION PAINTED. THEY WOULD HAVE SHOWN THAT IN THIS COMMUNITY HE WAS BELOVED. THAT HIS BROTHER WAS AN NFL PLAYER, WAS A WELL-KNOWN COMMUNITY PERSON. HIS BROTHER LOVED HIM DEEPLY. IT WAS HIS YOUNGER BROTHER. THEY WENT FROM THE BOYS CLUB TO HIGH SCHOOL, KENNETH HARTLEY HAD HIS BROTHER WITH HIM THROUGHOUT HIS LIFE. THEY PLAYED SPORTS TOGETHER. HIS BROTHER HEARD KENNETH'S VOICE IN HIS HEAD WHEN HE PLAYED FOOTBALL AND WANTED TO PUSH HARDER. KENNETH ENCOURAGED HIM TO SUCCEED.
WHAT WAS THE TESTIMONY -- MR. BRODY. WHAT WAS THE TESTIMONY DURING THE PENALTY PHASE ON THIS ISSUE? DIDN'T -- WASN'T THE -- DIDN'T THE REVEREND TESTIFY ABOUT THE DEFENDANT?
YES, HE DID.
OKAY.
SOMEWHAT. BUT DOES NOT -- DOESN'T MATCH THE IMPACT OF THE FAMILY TESTIFYING TO REAL EVENTS, THE REAL LOVE THEY FELT, TELLING THE JURY, WHICH I THINK IS THE MOST POWERFUL PENALTY PHASE EVIDENCE YOU CAN HAVE IS A REAL PERSON SPEAKING TO A LAYPERSON OP THE WITNESS STAND SPEAKING TO A LAY JUROR.
WHAT DID THE REVEREND TESTIFY TO?
HE TESTIFIED JUST GENERALLY THAT IT WAS A GOOD FAMILY, KENNETH WAS A QUIET GUY, WAS A QUIET GUY WHO WAS -- WENT TO CHURCH ON AND OFF. HE WAS... WELL, THAT WAS ABOUT THE GIST OF IT. OF HIS TESTIMONY. IT WAS VERY BRIEF. THERE WAS NOT MUCH EVIDENCE PUT ON.
YOU'RE ADDRESSING JUST ONE OF THOSE ISSUES.
RIGHT.
BECAUSE OF TITLE ARE YOU GOING TO ADDRESS THE OTHER TWO.
YES, YOUR HONOR, THE GIG LEO ISSUE IS -- GIGLIO, JOHN JOHNSON TESTIFIED THE PROSECUTOR WANTED HIM TO TESTIFY AGAINST HARTLEY AND THREATENED HIM. AND WHEN HE REFUSED TO TESTIFY AGAINST HARTLEY BECAUSE HE WAS IN JAIL WITH HARTLEY AND THE OTHER WITNESSES, WHEN HE REFUSED THE PROSECUTOR HARASSED HIM. HAD HIM PICKED UP ON A GEORGIA WARRANT AND SAID THINGS LIKE YOU DON'T WANT TO MAKE ME YOUR ENEMY. AND BASICALLY BEHAVED IN A WAY THAT WOULD MAKE HIS TESTIMONY COMPLETELY -- TRIED TO COERCE HIS TESTIMONY.
MR. BROID, WAS THE CLAIM PRESENTED BELOW.
THIS CLAIM WAS PRESENTED BELOW. THE EVIDENCE WAS PRESENTED BELOW, THE MAN TESTIFIED, THE STATE EXAMINED HIM, FOR SOME REASON THE JUDGE DID NOT RULE ON IT BELOW. SO THE WITNESS TESTIFIED, THE STATE -- HE WAS EXAMINED, IT IS COMPELLING TESTIMONY. THE PROSECUTOR BEHAVED -- I'M SURE THE COURT WOULD AGREE, IF BELIEVING THE TESTIMONY THE PROSECUTOR BEHAVED IMPROPERLY. SO -- BUT IT WAS NOT PLED IN THE ORIGINAL 3850 PRECISELY WITH PRECISION.
TALKING ABOUT THE WITNESS, JAMES JOHNSON.
YES, YOUR HONOR.
IF YOUR BRIEF DID YOU WAIVE APPEAL OF THIS ISSUE.
NO, YOUR HONOR. THE ISSUE. THE WAIVER IS OF THE SO-CALLED EIGHT CLAIM FOR NOT PRESENTING THE EXPERT BECAUSE NOBODY -- DIDN'T PUT ON ANY TESTIMONY OF WHAT AN EXPERT WOULD HAVE TESTIFIED TO HAD THEY PRESENTED ONE. AND HARTLEY HAS NEVER BEEN EXAMINED BY AN EXPERT. NEVER HAD AN INVESTIGATION, NEVER MEAN SEEN BY AN EXPERT ALTHOUGH THERE WAS AN ORDER TO HAVE HIM SEEN BY AN EXPERT. THE CASE REALLY HAS NOT BEEN HANDLED VERY CLEANLY BELOW. THERE WERE FIVE ATTORNEYS ON THIS HEARING AND HER HARTLEY REPEATEDLY ASKED THE COURT, I NEED AND INVESTIGATORS -- INVESTIGATOR. I NEED YOU TO FIND SOME PEOPLE AND HE WAS TURNED DOWN. SO HE TRIED TO PROTECT HIS RIGHTS AS BEST HE COULD. THE WITNESSES WHO DID TESTIFY, THE JAILHOUSE WITNESSES, HAVE BEEN IMPEACHED BY THE TESTIMONY PRESENTED AT THE HEARING. CLEARLY THE TESTIMONY THAT THEY MADE WAS FALSE AND --
ARE YOU TALKING ABOUT BROOKS.
BROOKS AND BONNER.
YOUR TESTIMONY WAS IM -- THEIR TESTIMONY WAS IMPEACHED HOW, YOU HAD SOMEONE WHO SAID THEY SAID SOMETHING ELSE, CORRECT.
RIGHT. THEY CAME BACK TO THE JAIL AND THE PROSECUTOR TOLD THEM WHAT TO SAY, THEY DIDN'T EVEN KNOW MR. HEART LIMIT THEY SAID THEY LIED ON HIM.
THEY DID NOT TESTIFY AT THIS HEARING.
NO, THEY DID NOT. BUT ANOTHER PERSON IN JAIL WITH THEM TESTIFIED.
SO WE HAVE HEARSAY TESTIMONY FROM MR. JOHNSON.
IT IS IMPEACHMENT TESTIMONY, YOUR HONOR. BUT IT'S SOMEBODY ELSE. RIGHT. A THIRD PARTY WHO IS TESTIFYING THAT THEY SAID THAT THEY LIED ON MR. HARTLEY IN ORDER TO GET A BETTER SENTENCE, AS MR. PATE ATTEMPTED TO GET THE OTHER PERSON.
WHEN DID ALL OF THIS INFORMATION COME TO LIGHT? HOW WAS IT DISCOVERED?
I DID NOT DO THE DISCOVERY OF IT. I CANNOT REALLY ANSWER THAT. I WAS NOT INVOLVED IN THAT. I DON'T KNOW, YOUR HONOR, IS THIS SHORT ANSWER. --
ISN'T THAT AN ISSUE WHEN TALKING ABOUT NEWLY DISCOVERED EVIDENCE.
YES, IT IS, YOUR HONOR. IT WAS NOT PLED. THAT PART WAS NOT PARTICULARLY PLED AND IT WAS NOT -- MORE WAS IT OBJECTED TO. BUT YES, IT IS, YOUR HONOR. BUT IT WAS NOT PRESENTED IN THAT MANNER. HIS TESTIMONY WAS JUST PRESENTED. TO THE COURT. BUT AN ARGUMENT WAS NOT MADE ABOUT THE NEWLY DISCOVERED EVIDENCE OR GIGLIO EVIDENCE. I CLASSIFIED AS THAT ON THE APPEAL.
DIDN'T JUSTICE CANTERO ASK YOU EARLIER IF THIS WAS IN FACT PRESENTED IN THAT MANNER -- NOW, YOU ARE SAYING IT WAS NOT.
I'M SORRY. I DON'T UNDERSTAND, YOUR HONOR.
NEWLY DISCOVERED EVIDENCE CLAIM OR GIGLIO CLAIM.
OH, HE DID BUT I THINK IT WAS A DIFFERENT QUESTION. IF IT WASN'T THEN I MISUNDERSTOOD HIM.
WAS IT PRESENTED IN THAT FASHION TO THE TRIAL COURT?
NEWLY DISCOVERED EVIDENCE CLAIM.
NO.
OR GIGLIO CLAIM.
NO, IT WAS NOT ARGUED IN THAT WAY. THAT'S WHY IT WAS PRESENTED, I PRESUME BUT IT'S NOT CLEAR FROM THE RECORD THAT THAT ARGUMENT WAS MADE PRECISELY.
GETTING BACK TO MY QUESTION, THEN --
TESTIMONY --
GETTING BACK TO MY QUESTION, THEN, THIS ARGUMENT WAS NOT PRESERVED.
YES, -- OH, YOU ASKED ME ABOUT WHAT I WAIVED IS WHAT YOU --.
ASKED YOU TWO QUESTIONS,, IF HE THIRST IT WAS WHETHER WAS PRESERVED BELOW AND THE SECOND WAS WHETHER YOU WAIVED IT ON APPEAL AND THE ANSWER TO MY FIRST QUESTION IS NO, IT WAS NOT PRESERVED?
IT WAS PRESERVED BUT IT WAS -- AND WAS NOT WAIVED WOULD BE MY ANSWERS. IT WAS PRESERVED. IT WAS PRESENTED, NOT OBJECTED TO AND I THINK THE -- THIS COURT WANTS TO LOOK TO THE SUBSTANCE OF WHAT WAS PRESENTED. NOT WHETHER IN RETROSPECT LOOK BACK AND MAKE A RULING BASED ON PLEAD.
WHAT I WANT TO KNOW IS DID THE DEFENDANT PLEAD THAT -- THE STATE COMMITTED A GIGLIO VIOLATION.
NO, I DON'T BELIEVE SO. I DON'T BELIEVE IT WAS PLED IN WRITING IN SO MANY WORDS, IT WAS NOT ARGUED, THEY -- THE WITNESS SURFACED AND THEY PRINTED IT.
-- PRESENTED IT.
YOU A ARE WELL INTO YOUR REBUTTAL IF YOU WOULD LIKE TO SAVE SOME TIME. MAY IT PLEASES THE COURT, MEREDITH CHARBULA, I REPRESENT THE AND PLEA IN THE CASE, THE STATE OF FLORIDA. IF A MAY FIRST START WITH THE FIRST ISSUE RAISED ON APPEAL AND ADDRESS JUSTICE ANSTEAD'S QUESTION TO MR. BROID, MR. WILLIS, WHO WAS TRIAL COUNSEL IN THIS CASE, HE WAS BOARD CERTIFIED IN CRIMINAL LAW, AND HAD BEEN A PRACTITIONER OVER 20 YEARS AT THE TIME, SOLELY CRIMINAL LAW AT THE TIME HE TRIED MR. HARTLEY'S CASE IN 1993. HE TESTIFIED THAT INDEED HE HAD SPOKEN WITH MR. JEFFERSON, AND THAT MR. JEFFERSON HAD RELATED TO HIM THAT WHILE HE LOVED HIS BROTHER HE HAD A GOOD THING GOING IN THE NFL, SKPED COULDN'T AFFORD TO BE TIED -- AND HE COULDN'T AFFORD TO BE TIED UP WITH IT. MR. JEFFERSON, WHEN HE TESTIFIED AT THE EVIDENTIARY HEARING, WHEN HE WAS FETIONED -- QUESTIONED BY THE COLLATERAL COURT HE TOLD THE COLLATERAL COURT THAT HE HAD DISCUSSED THE MATTER WITH HIS FAMILY AND IT WAS DECIDED AMONG HIS FAMILY HE WOULD NOT ATTEND THE TRIAL AND FOCUS ON HIS NFL CAREER, HE WAS -- [INAUDIBLE] EN 1991 AND AUGUST OF 1993 HE WAS STILL TRYING TO MAKE THE TEAM AND THAT HE AND HIS FAMILY HAD AGREED AND THE COLLATERAL COURT FOUND THE TESTIMONY CREDIT ILL. MR. WILLIS'S TESTIMONY THAT HE WAS NOT --
MY QUESTION IS AND I THINK THAT IS IMPORTANT, WHICH IS THAT THE TRIAL COURT IN THIS CASE FOUND THE TESTIMONY OF MR. WILLIS CREDIBLE AND I DON'T SEE A BASIS FOR US TO DISTURB THAT FINDING. THIS IS MY CONCERN. IT IS THAT IT LOOKS LIKE THE FAMILY WAS PAYING FOR PRIVATE COUNSEL TO REPRESENT THE DEFENDANT IN THE -- IN THIS CASE AND REALLY THE FOCUS WAS ON THE GUILT PHASE, THEIR HOPE WAS I GUESS TO GET EITHER A LESSER -- BUT THAT ONCE THE GUILT PHASE WAS OVER, IT APPEARS THAT -- AND THIS -- I WANT YOU TO EXPLAIN THIS, THAT IT REALLY -- THERE WAS NO REAL FOCUS ON THE PENALTY PHASE. EITHER THE MONEY DRIED UP, OR THE FAMILY REALLY WASN'T -- THERE WAS NO REAL EFFORT MADE TO GET ANYBODY TO TESTIFY, BECAUSE IN LOOKING AT THE ORIGINAL SENTENCING ORDER, I MEAN, THE PERSON THAT DID TESTIFY, THE MINISTER, SAID SOMETHING LIKE, FROM WHAT HE KNEW OF THE DEFENDANT HE DIDN'T THINK HE WAS CAPABLE OF CRIMES OF VIOLENCE. WELL, HERE IS A DEFENDANT WHO HAS COMMITTED SEVERAL PRIOR VIOLENT FELONIES. THAT COULDN'T HAVE BEEN VERY EFFECTIVE MITIGATION. SO MY QUESTION IS, I MEAN, IF I WERE THE DEFENSE LAWYER I WOULD TRY TO DO EVERYTHING IN MY POWER TO GET THE BROTHER, WHO IS THIS NFL PLAYER TO COME TO TESTIFY OR SOME FAMILY MEMBERS. WHAT ARE WE TO DO WITH THAT IMPRESSION? IS IT THAT WE IGNORE IT OR DO YOU THINK THAT'S NOT THE CASE, THAT IS, SORT OF LIKE THE DEFENSE LAWYER PRETTY WELL GAVE UP ON THE CASE, AFTER THE GUILT PHASE.
ABSOLUTELY NOT. IN FACT THERE IS CERTAINLY NO EVIDENCE THE MONEY DRIED UP. I MEAN, THERE WAS NEVER ANY INFERENCE THAT HE ABANDONED MR. HARTLEY.
HE DID TESTIFY, STRATEGY WAS TO TRY TO WIN AT THE GUILT PHASE BECAUSE ANY PENALTY PHASE WOULD LIKELY RESULT AUNT DEATH RECOMMENDATION BECAUSE OF THE SEVERALLING A VARIETY.
WELL, I THINK --ING A VARIETIES,.
WE HAVE A BOARD CERTIFIED LAWYER WITH 20 YEARS EXPERIENCE AND WOULD BE NAIVE OF HIM NOT TO UNDERSTAND, MR. HARTLEY HAVING SHOULD THE GONED A 15-YEAR-OLD TO DEATH IN A LAUNDROMAT IN 1986 AND WITHIN 72 DAYS GOFTING OUT OF PRISON -- OF GETTING OUT OF PRISON ON A TEN-YEAR SENTENCE AFTER FOR YOU YEARS, ROBBED TWO TAX I-DRIVERS AT SHOTGUN -- ACTUALLY ROBBED THREE AND CONVICTED OF TWO AND KILLED GINO MAYHEW AND WOULD BE UNREALISTIC FOR A TRIAL LAWYER NOT TO UNDERSTAND HE WAS VULNERABLE TO THE DEATH PENALTY BUT WHAT WE HAVE IS HIS TESTIMONY THAT HE SPOKE WITH MR. JEFFERSON, HE SPOKE WITH THE FAMILY MEMBERS AND THE FAMILY MEMBERS -- TRIED TO SET UP MEETINGS OR PHONE CALLS AND THEY WOULD NOT APPEAR SORE -- AND THAT HE WAS TOLD SPECIFICALLY THAT THEY WASHED THEIR HANDS OF HIM, AFTER -- MR. HARTLEY.
AND YOU SAY THE RECORD CLEARLY DEMONSTRATES THEY DECIDED NOT TO TESTIFY OR HELP HIM IN THE PENALTY PHASE? IS THAT WHAT THE TESTIMONY IS FROM MR. WILL SFLIS THE UNEQUIVOCAL TESTIMONY FROM MR. WILLIS AND TOWARD THE END OF HIS TESTIMONY HE TESTIFIED THEY WERE NOT AVAILABLE TO ME AND MR. JEFFERSON AS I SAID, THOUGH HE SAID HE WOULD HAVE TRIED TO GET -- WOULD HAVE GOTTEN A DAY OFF AND COME DOWN TO TESTIFY, WHEN QUESTIONED BY THE COLLATERAL COURT JUDGE HE SPECIFICALLY CORROBORATED WHAT MR. WILLIS SAID. HE SAID HE DISCUSSED IT WITH HIS FAMILY, THEY HAD GOTTEN TOGETHER AND DECIDED IT WAS MORE IMPORTANT FOR MR. JEFFERSON TO CONCENTRATE ON HIS FLEDGLING NFL CAREER --
WELL, THAT TESTIMONY WAS ABOUT WHETHER HE WOULD ATTEND THE TRIAL.
WELL, I THINK --
WHEN YOU LOOK AT THE GIST OF THE TESTIMONY, HE SAID THAT HE AND HIS FAMILY DECIDED IT WAS IMPORTANT FOR HIM TO MAKE THE TEAM, AND TO FOCUS ON MAKE THE TEAM AND THAT WAS MR. WILLIS'S TESTIMONY THAT MR. JEFFERSON TOLD HIM SPECIFICALLY WHILE HE LOVED HIS BROTHER HE COULD NOT AFFORD TO GET PICK PICKLY ASSOCIATED, BECAUSE HE WAS STRUGGLING TO MAKE THE STEAM.
WAS IT TRUE MOST OF THE FAMILY MEMBERS, WERE THEY NOT AWARE OF HIS -- EXTENT OF HIS CRIMINAL RECORD? WHAT IS THE TESTIMONY.
MOST OF THEM -- THAT IS THE OTHER THING AND MOVES OVER TO THE PREJUDICE PRONG.
THE REVEREND WILLIAMS TESTIFIED MR. HARTLEY -- AND TESTIFIED AT THE PENALTY PHASE WAS MANNERABLE, A PEACEFUL SPIRIT AND WAS REMORSEFUL ABOUT THE MANSLAUGHTER CONVICTION AND SAW GOOD IN HIM AND THOSE THINGS WERE TRANSMITTED TO THE JURY AND WHEN YOU LOOK AT MR. JEFFERSON'S TESTIMONY, MS. CHERRY AND MS. HAWKS TESTIMONY AND MS. DANIELS AND MS. DANIELS WHAT YOU FOUND WAS ESSENTIALLY THAT HE WAS A MANNERABLE, COOPERATIVE BOY WHO WASN'T VIOLENT AND WAS KIND TO ELDERLY PEOPLE AND THAT IS ALL THEY COULD SAY ABOUT HIM. WE HAVE TO UNDERSTAND, FROM THE AGE OF 18 MR. MARTLY WAS IN PRISON OR JAIL. THIS IS NOT A CASE WHERE TRIAL COUNSEL HAD A PLETHORA AS DESCRIBED BY MR. BRODY OF MITIGATION. ESSENTIALLY WE HAVE SOMEONE WHO KILLED A 15-YEAR-OLD GIRL BY POINTING A SHOTGUN AT HER. AND SHOOTING HER IN THE CHEST IN A LAUNDROMAT IN 1986. GOING TO PRISON FOR MANSLAUGHTER, AND COMING OUT AND WITHIN 72 DAYS COMMITTING TWO ROBBERIES, FOR WHICH HE WAS CONVICTED AND THIS MURDER, SO THIS IS NOT A SITUATION. CONSIDERING WHAT REVEREND -- CONSIDERING WHAT REVEREND WILLIAMS SAID, MANNERABLE, COOPERATIVE AND QUIET AND THE FACT COACH STEVENS, FOR INSTANCE, THE FIRST EVIDENTIARY HEARING WITNESS IN THE -- FOR THIS ADDITIONAL MITIGATION, YOU KNOW, HE KNEW HIM FOR A YEAR-AND-A-HALF, HUNT SEEN HIM SINCE HE WAS 17 AND ONLY TAUGHT HIM IN PE AND HE SAID HE WAS MANNERABLE AND COOPERATIVE, EXACTLY WHAT REVEREND WILLIAMS SAID AND MR. JEFFERSON, THE BEST HE COULD SAY ABOUT HIS BROTHER WAS THAT HE INSPIRED HIM TO DO WELL. I MEAN, --
AFTER SEVERAL OF THESE WITNESSES THAT TESTIFIED AT THE EVIDENTIARY HEARING WHAT WAS THE EVIDENCE ABOUT THEIR AVAILABILITY FOR THE TRIAL?
MS. CHERRY I BELIEVE, MS. CHERRY SAID SHE WAS IN ATLANTA AT THE TIME, SHE WAS CARING FOR HER MOTHER AND WAS PRETTY WELL TIED UP. AND -- WITH HER PERSONAL AFFAIRS. MS. HAWKS SAID SHE WAS AFRAID TO COME TO TRIAL AND FRANKLY, MS. HAWK IS -- AS THE COLLATERAL RAL COURT NOTICED BLEW A KISS TO MR. HARTLEY AS SHE CAME INTO THE ROOM AND ALL THESE WITNESSES KNEW VERY LITTLE ABOUT THE REAL KENNETH HARTLEY AND I THINK WHEN YOU -- EVEN IF YOU CONSIDER THAT MR. JEFFERSON WOULD BE IMPRESSED, MEMBERS OF THE JURIES AS A THIRD YEAR NFL PLAYER, WE HAVE HIM SAYING THAT, YOU KNOW, HE WAS A BAD SINGER IN THE CHOIR. AND EVEN THOUGH -- AND A GOOD BROTHER WHO INSPIRED HIM, BUT, HE SET A HORRIBLE EXAMPLE AND ANY REASONABLE JUROR WOULD LOOK AT HIS TESTIMONY WITH SKEPTICISM. KNOWING -- BELIEVING IT WAS SINCERE BUT LOOKING AT A WITH SKEPTICISM OF WHAT SUCH A HORRIBLE EXAMPLE KENNETH HARTLEY SET FOR HIS YOUNGER BROTHER AND WE ALSO HAVE -- IN THIS CASE, PROBABLY ONE OF THE BEST CASES TO LOOK AT THIS SPLIT IS WE HAVE SEAN JEFFERSON, RAISED UP BY MS. DANIELS, IN THE SAME HOUSEHOLD, KENNETH HEARTLY, GO TO CHURCH TOGETHER AND GO TO SCHOOL TOGETHER AND PLAY SPORTS TOGETHER AND SEAN JEFFERSON MADE SOMETHING OUT OF HIS LIFE. RIGHT NOW HE'S A -- ASSISTANT COACH WITH THE DETROIT LIONS. HE'S MADE SOMETHING AND HERE WE HAVE CONTRAST, KENNETH HARTLEY, NOTHING BUT A VIOLENT CRIMINAL WHO --
DID THEY MAKE ANY EFFORT -- BECAUSE THAT IS ALWAYS THE TWO EDGED OR DOUBLE-EDGED SWORD WHEN YOU PUT ON THE SIBLINGS WHO SUCCEEDED, WAS THERE ANY EVIDENCE PRESENTED THAT EXPLAINED, YOU KNOW, WHETHER MR. HARTLEY WAS EXPOSED TO VIOLENCE DIFFERENTLY THAN MR. JEFFERSON OR ANYTHING THAT WOULD HAVE EXPLAINED THAT OUTCOME, THE DIFFERENCE IN THE OUTCOME BASED ON HOW THEY WERE RAISED OR WERE THEY RAISED TOGETHER, THE WHOLE TIME?
THEY WERE. MR. JEFFERSON WAS TWO YEARS YOUNGER THAN MR. HARTLEY. AND ACCORDING TO THE EVIDENTIARY HEARING TESTIMONY, THERE WAS -- THEY WERE RAISED TOGETHER. AND -- NOW, THERE WAS SOME INDICATION IN MR. HARTLEY -- TESTIFIED AT THE EVIDENTIARY HEARING THAT HE HAD GOTTEN INTO SOME GANGS GANG WARFARE WHEN HE WAS YOUNGER AND THAT HE HAD ENDED UP SHOOTING SOMEONE OR SOMETHING. SHOOTING. HE DIDN'T SAY HE SHOT ANYONE BUT THERE WAS INDICATION THAT HE HAD BEEN INVOLVED IN SOME SORT OF ALTERCATION BUT THAT WAS REALLY VAGUE AND HIS OWN TESTIMONY. THERE WAS ALSO A NEWSPAPER ARTICLE THAT WAS AFTER TRIAL, SO IT WASN'T AVAILABLE ON TRIAL AND IT WASN'T TESTIFIED ABOUT THAT THAT HE HAD BEEN INVOLVED IN SOMETHING AND -- IN WASHINGTON HEIGHTS, WHERE -- BUT THIS IS NO EVIDENCE AND THEY DIDN'T PRESENT ANY EVIDENCE THE EVIDENTIARY HEARING THAT, YOU KNOW, HE SUFFERED ANY KIND OF BRAIN DAMAGE, HAD A LOW IQ, A --
DO YOU HAVE ANY INFORMATION ABOUT HIM, DID HE FINISH HIGH SCHOOL.
GOT A GED.
WHAT DO HIGH SCHOOL RECORDS SHOW, WAS HE A GOOD STUDENT? IS THERE ANYTHING IN HERE THAT WOULD SUGGEST, BECAUSE A PART OF MR. PROCEEDY'S ARGUMENT SEEMS TO BE THAT HE ALSO NEVER HAD ANY KIND OF MENTAL EVALUATION. AND SO, IS THERE ANYTHING IN THE RECORD THAT WOULD SUGGEST THAT HE SHOULD HAVE BEEN EXAMINED.
WELL, WHAT WE SEE IN THE TRIAL RECORD, MR. WILLIS AT THE PENALTY PHASE, PRESENTED THE TESTIMONY OF ALAN CHIPPERFIELD, AN EXPERIENCED DEFENSE ATTORNEY TALKED ABOUT THE EFFECT OF THE PRIOR SENTENCES FOR THE ROBBERIES AND ON TOP OF THE MURDER. AND PRESENTED MR. WILLIAMS AND WHEN -- AND THEN RESTED HIS CASE, AND MR. BATE. A ASKED THE TRIAL COURT TO INQUIRE OF MR. WILLIS SPECIFICALLY ABOUT AN EVALUATION OR TESTIMONY FOR MENTAL HEALTH MITT GATORS. AND MR. WILLIS SAID ON THE RECORD, THAT HE HAD ACKNOWLEDGED THAT THERE WAS AN EXPERT APPOINTED, AN ORDER TO TRANSPORT, HE AND MR. HARTLEY HAD DISCUSSED THIS OVER SEVERAL MONTHS, AND WITH DELIBERATE EXERCISED JUDGMENT HAD DECIDED NOT TO PRESENT THE TESTIMONY. AND --
HE WAS IN FACT EXAMINED BUT THEY WERE NOT GOING TO USE THE TESTIMONY.
WELL, MR. WILLIS WAS -- GAVE SUFFICIENT INFORMATION TO SAY THAT THEY DECIDED NOT TO PRESENT MENTAL HEALTH TESTIMONY. HE WASN'T SPECIFICALLY QUESTIONED WHETHER HE HAD EVALUATED HIM, AND DECIDED NOT TO USE IT OR BASED ON HIS DISCUSSION WITH MR. HARTLEY, DECIDED NOT TO HAVE HIM EVALUATED AT ALL BUT WHAT HE DID SAY WAS THAT HE HAD DISCUSSED IT WITH MR. HARTLEY AND HE WAS PRESENTED DURING THE COLLOQUY AND THAT WITH DELIBERATE EXERCISED JUDGMENT WERE NOT PRESENTING ANY SUCH EVIDENCE. HE DIDN'T FEEL LIKE HE HAD TO EXPLAIN HIMSELF. BUT HE DID. ALSO, AT THE EVIDENTIARY HEARING, THE -- MR. HARTLEY FILED A -- OR -- A CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL FOR FAILURE TO PRESENT MENTAL MITIGATION AND ABANDONED THE CLAIM THAT THE E EVIDENTIARY HEARING AND NO TESTIMONY OR EVIDENCE PRESENTED AND NOT RAISED ON APPEAL.
SO I THINK THAT WHAT YOU HAVE TO LOOK AT IS A COUPLE OF THE WITNESSES AT THE EVIDENTIARY HEARING SAID THEY WERE NOT AVAILABLE AND OTHER WITNESSES TECHED THEY WOULD HAVE COME FORWARD, ADD ADD VERY LITTLE MITIGATION AND KNEW ALMOST NOTHING ABOUT THE REAL KENNETH HARTLEY AND THE DETAILS OF THE MANSLAUGHTER AND THEY WON -- TESTIFIED ANGEL McCORMACK WAS A FINE YOUNG LADY AND THAT WAS THE 15-YEAR-OLD THAT HE SHOTGUNNED TO DEATH IN 1986 AND I THINK WHEN YOU LOOK AT A, THERE IS NO REASONABLE POSSIBILITY, OR PROBLEM ABILITY, THE OUTCOME, GIVEN THE FIVE SERIOUS AL VARIETIES, HELD PIE THE -- AGGRAVATORS, THAT THE OUTCOME HAVE BEEN DIFFERENT.
WILL YOU ADDRESS THE ISSUE, NEWLY DISCOVERED EVIDENCE IN GIGLIO.
IN THIS BRIEF ITS MUSHED UP A LITTLE BIT TOGETHER BECAUSE IT IS KIND OF A HYBRID, NEWLY DISCOVERED EVIDENCE AND --
SEEMS LIKE A NEWLY DISCOVERED EVIDENCE OF A GIGLIO CLAIM.
I'M NOT SURE THERE IS ANY SUCH THING, NEWLY DISCOVERED EVIDENCE HAS TO BE RELEVANT SPECIFICALLY TO GUILT. BECAUSE IT HAS TO MAKE, YOU KNOW, EVIDENCE THAT WOULD HAVE MADE A DIFFERENCE AT TRIAL. AND I THINK FIRST OF ALL, THE TRIAL COURT DIDN'T RULE ON IT AND JUSTICE QUINCE IF I COULD ANSWER YOUR QUESTION ABOUT IT -- HOW IT CAME UP, DURING THE MIDDLE OF THE EVIDENTIARY HEARING, COLLATERAL COUNSEL NOTIFIED THE COURT THERE WAS A POTENTIAL NEW WITNESS HE WANTED TO EXPLORE AND THE COURT BENT OVER BACKWARDS TO ALLOW COLLATERAL COUNSEL TO CALL THE WITNESSES HE FELT NECESSARY AS WELL AS THE WITH ITS MR. HARTLEY -- IT WAS NEVER PLED, AS A NEW CLAIM. MR. JOHNSON TESTIFIED, COLLATERAL COUNSEL INDICATED THAT HE HADN'T BEEN ABLE TO LOCATE MR. BRAUN OR MR. BROOKS. THE COLLATERAL CIRCUIT COURT THEN ALLOWED HIM TO FURTHER INVESTIGATE OR POTENTIAL CALL OTHER WITNESSES AND AT THAT POINT, MR. HARTLEY FILED A COMPLAINT, WHICH TRIGGERED A MOTION TO WITHDRAW BY COLLATERAL COUNSEL AFTER FOUR YEARS WHICH WAS GRANTED. AND THEN NO OTHER EVIDENCE WAS PRESENTED WHEN SUCCESSOR COLLATERAL COUNSEL CAME INTO THE CASE, NO OTHER EVIDENCE WAS ATTEMPTED TO BE PRESENTED. THERE WAS NEVER -- THE TRIAL JUDGE ALLOWED MR. MALNICK TO FILE ANY ADDITIONAL CLAIMS HE WANTED AND THAT CLAIM WAS NEVER MENTIONED AGAIN AND SO I THINK BECAUSE THE COLLATERAL COURT NEVER RECEIVED IT AS AN ACTUAL CLAIM AS MR. BRODY STATED HERE AS A FULLY DEVELOPED CLAIM, HE DIDN'T RULE ON IT, AND MR. HARTLEY FILED A MOTION FOR REHEARING AND NEVER RAISED THE ISSUE IN HIS MOTION FOR A HEARING AND NEVER INFORMED THE COLLATERAL COURT THERE WAS A CLAIM OUT THERE THAT NEED TO BE RULED ON, THE COLLATERAL COURT ISSUED AN AMENDED ORDER, I BELIEVE LOOKING AT IT HE AMENDED OR CORRECTED CLERICAL THINGS AND, AGAIN, MR. HARTLEY NEVER RAISED THE ISSUE THAT THERE WAS A CLAIM THAT HE HAD HAD THAT WAS NOT RULED UPON AND SO IS THIS STATE'S POSITION THAT THAT ISSUE IS WAIVED. IF YOU LOOK AT THE MERITS OF THE INDICATION, AS A NEWLY DISCOVERED EVIDENCE AND I THINK IT IS MORE A -- NEWLY DISCOVERED EVIDENCE OF RECANTATION AS OPPOSED TO GIGLIO. THEN YOU -- FIRST OF ALL, HE NEVER, AS YOU POINTED OUT, THE EVIDENCE WOULD ONLY BE ADMISSIBLE FOR IMPEACHMENT. ADDITION, IF IT WAS ADMISSIBLE AT ALL IT WOULD BE ADMISSIBLE FOR IMPEACHMENT AND HE DIDN'T IDENTIFY A SINGLE LIE MR. BRONNER AND MR. BROOKS SAID. HE ALSO TESTIFIED THIS CONVERSATION OCCURRED SOMEWHERE IN MAY OF JUNE OF 1993, BRONNER AND BROOKS TOLD HIM HE HAD LIED ON MR. HARTLEY, AND AGAIN, I THINK THAT IS RELATIVELY IN COULD HARNT. BUT HE TESTIFIED THAT THIS OCCURRED SOMETIME IN -- HE WAS ALMOST CERTAIN, IN JUNE OF 1993, AND MR. HARTLEY DICHBT GO TO TRIAL UNTIL AUGUST OF 199 -- DIDN'T EVEN GO TO TRIAL UNTIL AUGUST OF 1993 AND GIVEN THE FACT THEY WERE NOT BROUGHT BEFORE THE COURT BY MR. HARTLEY, EVEN IF YOU LOOK AT THE MERITS OF IT, IT WOULDN'T HAVE AFFECTED THE OUT COME. WE STILL HAVE SIDNEY JONES, THE EYEWITNESS AND BY THE WAY, SIDNEY JONES, TRIAL COUNSEL WOULDN'T HAVE BEEN ABLE TO IMPEACH SIDNEY JONES I DIDN'T PERJURY CONVICTION. WHILE HE WAS -- HAD PERJURY CONVICTION DISCORD -- THIS COURT OVERTURNED IT IN 1980.
I'M CONCERNED ABOUT --
COULD HAVE IMPEACHED SIDNEY JONES ON THAT --
I'M CONCERNED ABOUT ADDRESSING THE CREDIBILITY OF THESE WITNESSES WHEN THE TRIAL COURT NEVER RULED ON IT.
I UNDERSTAND AND I UNDERSTAND THIS COURT CAN'T DO A CREDIBILITY BUT YOU CAN I THINK YOU CAN LOOK AT A TOTALITY OF THE CIRCUMSTANCES WHEN YOU SEE THAT THIS -- I DON'T WANT TO USE TOTALITY OF THE RECORD, BUT YOU SEE THAT HIS TESTIMONY DOESN'T AFFECT SIDNEY JONES, AN EYEWITNESS. WHO SAW MR. HARTLEY PUT MR. MAYHEW AT GUNPOINT INTO HIS BLAZER, SAW MR. FAIRLY GET INTO THE FRONT PASSENGER SEAT, YOU A MR. HARTLEY GET BEHIND HIM, AND CROUCHING FORWARD, LIKE HE WAS TALKING TO HIM. YOU KNOW, REASONABLE INFERENCE WHAT HE WAS DOING WAS HOLDING THE GUN TO HIS HEAD AND GIVING HIM DIRECTIONS. JUAN BROWN WHO TESTIFIED THAT HE WAS TRAVELING DOWN THE STREET AND HE SAW GINO'S BLAZER WITH HIM DRIVING AND LONNIE FAIRLY IN THE FRONT PASSENGER SEAT AND WITH SOMEONE, HE COULDN'T IDENTIFY, SOMEONE LEANING FORWARD, LIKE HE WAS TALKING TO HIM. THE NEXT MORNING, GINO'S BLAZER WAS FOUND, SIDNEY JONES DESCRIBED THE GUN THAT HE USED WAS A GUN WITHOUT A CYLINDER WHICH MAKES IT AN AUTOMATIC AND THERE WERE SHELL CASINGS FOUND IN THE BLAZER AND WE HAVE THE TESTIMONY OF THE DOCTOR WHO TESTIFIED THAT THE SIX GUNSHOT WOUNDS, ONE IN THE FINGER, FOUR AND THEY ONE IN THE SHOULDER CAME FROM BEHIND AND TO THE RIGHT OF MR. MAYHEW AND MR. HARTLEY IS RIGHT-HANDED, TESTIFIED AT TRIAL. CONSISTENT WITH HIM SITTING IN THE BACK SEAT AN EVEN IF YOU SAY BRONNER SAID SOMETHING TO JAMES JOHNSON OR BROOKS SAID SOMETHING TO JAMES JOHNSON YOU STILL HAVE UNTOUCHED THOSE THREE WITNESSES AND YOU HAVE ANTHONY HARKINS WHO TESTIFIED HE MADE ADMISSIONS TO HIM ON TWO OCCASIONS THAT HE KILLED FAIRLY -- KIRLD GINO MAYHEW AND ALMOST KILLED SYLVESTER JOHNSON AND RONNIE FAIRLY BECAUSE THEY WERE SO NERVOUS ABOUT IT. SO I THINK THAT EVEN IF YOU LOOK AT -- YOU KNOW, JOHNSON'S TESTIMONY AT ALL YOU CAN SEE THERE IS NO PROBABILITY OF A DIFFERENT RESULT BECAUSE OF THOSE -- THAT OTHER HARD EVIDENCE THAT SUPPORTS HARTLEY'S GUILT.
LET ME ASK YOU ONE QUICK QUESTION, PROCEDURAL, WHAT HAPPENED TO MR. MALNICK AND WHY HAS IT TAKEN THREE YEARS TO GET TO ORAL ARGUMENT.
MR. MALNICK WAS DISCHARGED BY MR. HARTLEY. AFTER THE POSTCONVICTION PROCEEDINGS AND AFTER HE FILED THE NOTICE OF APPEAL. AND MR. HARTLEY IS -- HE RAN THROUGH THREE TRIAL COUNSEL AND POSTCONVICTION COUNSEL AND HE WAS UNHAPPY WITH MR. MALNICK BECAUSE HE DIDN'T INCORPORATE HARTLEY'S CLOSING ARGUMENT INTO HIS POST EVIDENTIARY HEARING MEMO. AND SO I THINK THAT HE FIRED HIM AFTER THE NOTICE OF APPEAL ON FIRED, AND MR. BRODY CAME INTO THE CASE IN 2005 AND THEN, THAT IS WHERE WE PROCEEDED.
WITH OUR ASSISTANCE YOU HAVE USED UP ALL OF YOUR TIME.
THANK YOU.
THANK YOU.
WE WOULD ASK THAT YOU AFFIRM.
MR. BRODY, REBUTTAL?
JUST VERY BRIEFLY, I THINK THAT IS NO EVIDENCE MR. HARTLEY CAUSED THE TURNOVER IN ATTORNEYS. TO ANSWER YOUR QUESTION, MR. MALNICK FILED A MOTION OF APPEAL WHILE THE CASE WAS PENDING BEFORE THE CIRCUIT COURT, SO MR. HARTLEY WAS CONCERNED ABOUT HIS KNOWLEDGE. HE WAS -- IF HE DID NOT KNOW WHEN THE TIME TO FILE AN APPEAL, NOTICE OF APPEAL WAS. THAT IS WHY -- IF THAT IS RELEVANT FOR ANYTHING. ALSO MR. MALNICK FILED A MOTION ASKING FOR A PSYCHOLOGICAL EVALUATION. BUT NONE WAS EVER MADE. THERE NEVER WAS A PSYCHOLOGICAL EVALUATION, NEVER HAS BEEN AND THE CASE HAS NOT BEEN INVESTIGATED AN PREPARED BELOW.
ON WHAT BASIS -- WOULD YOU HAVE A PSYCHOLOGICAL EVALUATION? WHAT IS IN THIS RECORD THAT WOULD WARRANT HAVING A PSYCHOLOGICAL EVALUATION?
WELL, I THINK TO DEVELOP MITIGATION, TO DEVELOP A CASE TO EXPLAIN WHO MR. HARTLEY WAS --
YOU BELIEVE EVERY DEFENDANT SHOULD BE PSYCHOLOGICALLY EXAMINED.
NOT NECESSARILY BUT I THINK PRETTY MUCH WHEN YOU HAVE TWO STRONG MITIGATOR, STATUTORY MITT GATORS REGARDING MENTAL HEALTH AND I DO BELIEVE THAT THEY SHOULD BE EVALUATED. YES, YOUR HONOR, I BELIEVE HE SHOULD HAVE BEEN SINCE THEY HAD AN ORDER PERMITTING IT FROM THE COURT.
HE HAS HAD PRIOR COMMITMENTS TO PRISON AS A JUVENILE AN OTHERWISE IN THEIR PSYCHOLOGICAL ASSESSMENTS DONE OFTEN INTO PSIes AND PDRs AND ANYTHING IN THE SCHOOL RECORDS, PDRs, PSIes TO GIVE ANY INDICATION THERE IS A MENTAL HEALTH ISSUE?
I THINK THERE ARE. YES, I MEAN -- I'M NOT A DOCTOR BUT -- I THINK THERE IS A PROBLEM HERE, I HATE TO SAY OBVIOUSLY, BUT WITH VIOLENCE AND WITH --
SPECIFICALLY YOU NEED TO GET THE SCHOOL RECORDS, PDRs,INY PSIes, ANY PRIOR COMMITMENT SENTENCING OF THIS DEFENDANT, THAT WOULD PUT ANYBODY ON A REASONABLE NOTICE WE HAVE A SIGNIFICANT MENTAL HEALTH ISSUE.
I'M NOT AWARE OF ANY, YOUR HONOR, NOT EITHER WAY.
WITH THAT LAST QUESTION, YOU HAVE EXHAUSTED YOUR TIME.
THANK YOU, SEND THE CASE BACK.
THANK YOU VERY MUCH. WE'LL TAKE THE CASE UNDER ADVISEMENT.