In re: Amendments to the Florida Small Claims Rules

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Thomas M. Overton v. State of Florida

SC04-2071 | SC05-964 | SC06-237

>> NEXT CASE ON THE CALENDAR,
OVERTON VERSUS STATE.
>> MAY IT PLEASE THE COURT.
>> SOFT-SPOKEN, PLEASE PULL
THAT DOWN SO WE CAN HEAR YOU.
THERE YOU GO.
>> MATE PLEASE THE COURT.
COUNSEL, MY NAME IS CHRISTINE
-- I REPRESENT MR. OVERTON,
REETED AT COUNSEL TABLE WITH ME
IS MS. BACKUS AND THE TWO OF US
REPRESENT THE APELLANT.
>> WILL YOU CONCENTRATE ON ANY
PARTICULAR ARGUMENTS THIS
MORNING.
>> YES, I WOULD REALLY LIKE TO
CONCENTRATE ON THE ISSUES
SURROUNDING THE DNA EVIDENCE
AND IN CONTEXT, IF TIME
PERMITTING THE FIRST WOULD BE
THE EVIDENCE THAT WAS ADMITTED
AT TRIAL AND THE SECOND WOULD
BE THE ISSUE SURROUNDING THE
EVIDENCE OF THE DNA ALLOWED TO
BE SUBMITTED AT THE EVIDENTIARY
HEARING AND WAS NOT SUBMITTED
AND THEN DENIAL OF THE REQUEST
FOR DNA TESTING.
AND AT EACH ONE OF THESE STAGES
THE PROBLEM THAT IS INHERENT IS
THERE HAS NEVER BEEN AN
ADVERSARIAL TESTING IN EACH
STAGE OF THE PROCEEDING AT THE
FREY HEARING, THE FIRST ISSUE
IS INEFFECTIVE ASSISTS TANS OF
COUNSEL FOR FAILING TO PREPARE
FOR AND PRESENT ANY EVIDENCE AT
THE HEARING --
>> YOU SAID YOU WERE GOING TO
DISCUSS THE DNA.
THAT IS PRETTY SIGNIFICANT
ISSUE, MAYBE.
IF YOU CAN JUST, SO WE DON'T
GET THAT LOST, COULD YOU JUST
SUMMARIZE YOUR BEST ARGUMENT
BOY WHY THERE SHOULD HAVE BEEN
TESTING OF THESE HAIRS.
LIMITING IT TO HAIRS THAT WERE
ON A TAPE THAT WAS USED TO --
TO BIND ONE OF THE VICTIMS?
>> YES.
WITH THE UNDERSTANDING THAT
THIS CASE IS A DNA CASE.
THE ONLY PHYSICAL EVIDENCE
AGAINST MR. OVERTON WAS THE DNA
PRESENTED AT TRIAL.
THERE WERE NO OTHER INDICATION
OF ANY OF HIS ENTRANCE ON THE
PROPERTY, OTHER THAN THE
SNITCH'S TESTIMONY THAT THIS IS
A DNA CASE, AND IS CLEAR BY THE
RECORD AND BOTH JUDGE SHEA AND
JUDGE JONES' DECISION IT IS A
DNA CASE, THE HAIR IN THE
BINDING AROUND THE ANKLES OF
THE VICTIM, A COUPLE OF HAIRS
WERE THERE AND HAS BEEN DENIED
TESTING.
>> IS THAT THE ONLY -- BECAUSE
THERE ARE OTHER, AS YOU SAID,
DNA CASE, SO, THEIR ARGUMENT IS
THAT THIS HAIR -- SOMEBODY
ELSE'S HAIR, THERE ARE LOTS OF
WAYS HAIR CAN GET ON TAPE AND
THAT SEEMS TO ME TO BE PRETTY
LOGICAL.
HOW WOULD THAT LEAD TO THE
PROBLEM ABILITY OF AN ACQUITTAL
GIVEN THE OTHER DNA AND
EVIDENCE IN THIS CASE.
>> WELL, IT IS NOT JUST THE
PROBABILITY OF AN ACQUITTAL BUT
ALSO WHETHER OR NOT THE
PROPORTIONALITY OF THE SENTENCE
WOULD BE QUESTIONABLE ALSO.
AND WITH THE HAIR IN THE TAPE,
THIS IS THE ONLY EVIDENCE AND
IT GOES TO THE CHAIN OF CUSTODY
AND IS INTERTWINED IN THE SENSE
THIS IS THE ONLY EVIDENCE WE
KNOW THERE IS A TOTALLY INTACT
CHAIN OF CUSTODY, THAT THAT
HAIR WAS REMOVED FROM THE TAPE
AT THE LAB, AND THAT THAT HAIR
WOULD HAVE BEEN USED -- WOULD
HAVE BEEN ATTACHED TO THE
BINDINGS WHILE SHE WAS BEING --
THE VICTIM WAS BEING BOUND.
I KNOW THAT THE JUDGE ALSO
DETERMINED THAT THERE WERE A
VARIETY OF WAYS THAT THE HAIR
COBB PICKED UP.
HOWEVER, WE SHOULD IT TO YOU
THAT THERE REALLY IS ONLY ONE
WAY THAT THAT HAIR COULD HAVE
BEEN PUT IN THAT BINDING AND
THAT WOULD HAVE BEEN BY THE
PERPETRATOR.
>> WE WOULD HAVE TO ACCEPT THAT
THAT THIS IS MOST LIKELY --
MOST LIKELY THAT IT ONLY COULD
HAPPEN IN ONE WAY IN ORDER TO
THINK THAT TESTING OF IT WOULD
BE A -- LEAD TO SOME PRODUCTIVE
ARGUMENT.
CORRECT?
>> IF IT IS TESTED AND SHOWN TO
BE SOMEONE ELSE'S HAIR, IT
COULD GET THERE IN MANY
DIFFERENT WAYS AND IS A --
NOTHING HAS CHANGED.
>> WE HAVEN'T BEEN ABLE TO
PRESENT THE -- ALL THE EVIDENCE
WITH -- SURROUNDING THE AIR,
BUT SUFFICE IT TO SAY THAT THIS
IS NO -- THERE WERE NO OTHER
FIBERS, NO OTHER MATERIAL IN
THAT TAPE THAT WAS WITH THAT
HAIR.
IT IS JUST SOLELY HAIR IN THAT
BINDING.
AND --
>> WAS THAT REQUEST TO TEST
THAT AIR A PART OF YOUR INITIAL
REQUEST FOR TNA TESTING OR AS
THE HAIR SOMETHING THAT YOU
FILED IN A SUBSEQUENT MOTION
AFTER THE FIRST MOTION WAS
DETERMINED?
>> IT WAS FILED WITHIN DAYS OF
THE FIRST MOTION, A SUBSEQUENT
MOTION FOR DNA TESTING.
>> AND WAS THERE ANY PARTICULAR
REASON IT WASN'T INCLUDED IN
YOUR INITIAL MOTION.
>> IT WAS AND IN ADD VERNTED
ERROR.
>> AND HASN'T THIS COURT
ALREADY LOOK AT SEVERAL CASES
INVOLVING HAIR ATTACHED TO TAPE
AND OTHER BINDINGS KINDS OF
CASES AND CONCLUDED THAT IT WAS
NOT ERROR TO DENY THE TESTING
ON THOSE FOR THE VERY REASON
THAT THERE ARE SO MANY, MAN
DIFFERENT WAYS THAT THE HAIR
COULD HAVE FOUND ITS WAY ONTO A
PIECE OF TAPE, HAVEN'T WE
ALREADY CROSSED THAT BRIDGE IN
SELF CASES.
>> YES, HOWEVER, AGAIN, BECAUSE
IT IS JUST THE SINGLE HAIRS AND
NOTHING ELSE, WITHIN THAT TAPE
BINDING AND THE FACT THAT BACK
TO THE FACTS OF THE CASE, THAT
IT WAS DETERMINED AND IT WAS
PRESENTED AT TRIAL THAT THE
BINDINGS WERE USED FROM
WHATEVER WAS FOUND IN THE HOME,
THEY WERE NOT BROUGHT IN.
THERE WERE TIES AND BELTS AND
THERE WERE --
>> I THINK THE OPINION REALLY
MENTIONED FROM THE DRAWER, THAT
THERE WAS CLOTHESLINE AND THERE
WAS ALL KINDS OF THINGS BROUGHT
FROM THE OUTSIDE, AND EVEN
REFERENCED IN THE OPINION,
WASN'T THERE?
>> LIKE THE CLOTHESLINE.
>> FROM OUTSIDE LIKE AT THE
SCENE.
>> OUTSIDE, WHEREVER IT CAME
FROM, THERE ARE OTHER THINGS
THAT CAME, CORD AND OTHER
THINGS THAT MADE ITS WAY INTO
THE SCENE AND THIS ONLY
SENTENCE IN THE PRIOR PRIF THAT
TALKS IN TERMS OF -- ON THE
SCENE WERE FROM THE DRAWER.
>> THAT'S TRUE.
>> THERE WAS NOT REALLY A
STATEMENT --
>> THAT'S TRUE.
>> THAT IS WHAT I'M SAYING AND
WE DON'T KNOW REALLY WHERE THE
TAPE REALLY CAME FROM.
>> BUT WE KNOW IT WAS FOUND AT
THE SCENE AND THE TAPE WAS DUCT
TAPE AND STILL INTACT AND
ROLLED AND THAT TA TAPE,
PRESUMABLY WAS USED TO BIND THE
VICTIM AND THAT THAT TAPE IS
NOT STICKY SUBSTANCE UNTIL IT
IS OPEN UP AND NOT STICKY ON
THE OUTSIDE, IT IS SMOOTH ON
THE OUTSIDE AND UNTIL ITS USED
TO BIND THE VICTIM, THAT THAT
IS WHERE YOU WOULD BE PICKING
UP THE ARTICLES WITH IT AND
THAT YOU WOULD ASSUME OR
PRESUME THAT IF YOU ARE TAKE
THE BINDING AND WRAPPING IT
AROUND SOMETHING AND IT
PICKSING UP ARTICLES FROM THE
FLOOR OR FROM WHATEVER ELSE
AREA THAT IT WOULD PICK UP MORE
THAN JUST A HAIR.
>> AND SO HOW -- IF SOMEONE
ELSE IS PRESENT IT DOESN'T
ELIMINATE THE INDIVIDUAL WITH
ALL THE DNA BINDINGS THAT WERE
THERE IF ONE OF HIS FRIENDS
WERE WITH HIM, THAT CHANGES IN
SOME WAY WHEN YOU HAVE THE DNA
SWABBING OFF THE BODY OF THE
FEMALE VICTIM, HOW DOES THAT
CHANGE THE -- IMPACT THE
SENTENCING.
>> THE STATE'S CASE IS --
THEORY WAS CONSISTENTLY AND THE
ONLY THING ARGUED AT TRIAL WAS
THAT HE ACTED ALONE.
THAT MR. OVERTON HAD A
COMPULSION TO RAPE THE VICTIM,
THE FEMALE VICTIM AND THAT HE
WAS TOTALLY ALONE.
THE TESTIMONY OF JAMES ZYTECK
PERSON.
>> THE SNITCH, QUOTED AT LENGTH
IN THIS COURT'S OPINION, PUTS
THE ENTIRE CRIME SCENE AND THE
ENTIRE ACTS OF THE CRIME, WAS
-- MR. OVERTON WAS ACTING
ALONE.
HE HAS ALWAYS ALLEGED HIS
INNOCENCE, IT HAS NEVER BEEN --
EXCUSE ME, UNWAIVERING IN HIS
--
>> I DON'T SEE HOW YOU ARE
SAYING, HE WAS NOT THERE, IS
THAT WHAT YOU ARE SAYING, THE
HAIR PROVES HE WAS NOT THERE?
>> NO.
IF THE HAIR IS NOT HIS, THEN IT
WOULD SHOW THAT THERE WAS
SOMEONE ELSE AT THE SCENE, THE
STATE'S CASE, THE THEORY OF THE
CASE, IS EVEN CORRECT THAT THE
SNITCH WAS NOT TELLING THE
TRUTH.
IT GOES TO MANY MORE VICTIMS.
>> COULD IT HAVE BEEN THE
VICTIM'S HAIR.
>> IT COULD BE.
LET'S TEST IT.
>> ISN'T THAT WHAT HAPPENED IN
ALLEN VERSUS STATE INTO YES.
HOWEVER --
>> WE DECIDED.
THEY ARGUED IT COULD HAVE BEEN
THE -- ARGUMENT WAS IT COULD
HAVE BEEN SOMEONE ELSE AND --
BUT WE SAY IT COULD HAVE BEEN,
JUST WALES THE VICTIM'S.
>> IT COULD HAVE BEEN, HOWEVER
THE VISUAL INSPECTION OF THAT
HAIR ALREADY CONCLUDED THE
VICTIM.
AND SO, WE DON'T HAVE THE
TESTING TO FULLY EXCLUDE THE
VICTIM.
IT HAS VISUALLY BEEN EXCLUDED.
>> HOW IS IT DIFFERENT FROM
WHAT WE SAID IN ALLEN VERSUS
STATE.
ISN'T THE SAME ARGUMENT
BASICALLY MADE?
>> IT IS BASICALLY THE SAME
ARGUMENT HOWEVER FACTUALLY,
BECAUSE OF THE IMPORTANCE OF
THIS DNA EVIDENCE, THE
DISTINCTION IS THE CONVICTION
IS BASED SOLELY ON THE DNA
EVIDENCE, TRUTHFULLY.
>> MAY NOT HAVE BEEN WHOLLY DNA
BUT IT WAS WHOLLY
CIRCUMSTANTIAL, RIGHT?
INTO NO EYEWITNESS OR
CONFESSION AND IT WAS ALL
CIRCUMSTANTIAL IN ALLEN ALSO.
>> THAT'S TRUE.
BUT THIS ISN'T JUST
CIRCUMSTANTIAL, THIS IS DIRECT
EVIDENCE, OF THE DNA AND IT HAS
BEEN FOR BASIC FOCUS OF EVERY
COURT AND I'M CERTAIN OF THE
JURY AND LEADS US BACK INTO THE
OTHER ISSUE OF THE FAILURE TO
PREPARE FOR AND TO PARTICIPATE
IN THIS FREY HEARING BECAUSE
UNDER THE PROPER ANALYSIS THE
CHAIN OF CUSTODY WAS AN ISSUE
AT THE FREY --
>> CAN YOU POINT TO US IN THE
RECORD WHERE THAT WAS AN ISSUE
AT THE FREY HEARING?
SEEMS AS THOUGH -- WAS THERE
SEPARATE PLEADING ON THAT.
>> NO.
THAT IS THIS PROBLEM.
AND THAT -- THERE BELIES THE
PROBLEM.
THERE WAS NO CHALLENGE AT THE
FREY HEARING.
>> AND THE -- CERTAINLY WASN'T
ON CHAIN OF CUSTODY AND WAS IT
NOT THE STRATEGY OF THESE
LAWYERS THAT THEY HAVE ALREADY
MET WITH SUPER, DID THEY NOT
AND THE LAWYERS MET WITH
SUPERAND WERE ADVISED BY
EXPERTS THAT THE STR AND RFL
TESTING WERE IN 1999 STATE OF
THE ART AND THAT WAS ACCEPTABLE
EVERYWHERE.
SO THAT IS NOT THE EVIDENCE?
>> WHAT IS THE EVIDENCE.
>> THAT IS NOT THE EVIDENCE.
THE EVIDENCE -- FIRST OF ALL,
THE TESTING WAS DONE IN 1993
AND --
>> AT THE TIME OF THE HEARING
WAS 1999.
>> CORRECT AT THE TIME OF THE
HEARING --
>> 1999 THIS IS CRITICAL DATE,
, IS IT NOT.
>> IT IS THE CRITICAL DATE FOR
WHEN THE EVIDENCE WAS
PRESENTED.
HOWEVER, THE --
>> IS THAT NOT WHEN -- IF WE
ARE DOING A HEARING ON IT, AS
OF 1999.
ISN'T THAT THE DATE THE JUDGE
WOULD HAVE USED TO DETERMINE
WHETHER THE STATE OF THE
SCIENCE WAS SUCH THAT IT WAS
ACCEPTABLE FOR THIS PURPOSE AND
WE SAID THAT IN CASES.
>> ABSOLUTELY.
>> OKAY.
WHY ARE YOU REFERRING TO 1993
IN THE, WHAT DOES THAT HAVE TO
DO WITH IT.
>> JUST THE DATE OF THE
TESTING.
>> SO YOU DO AGREE THE DATE IS
1999 WE SHOULD BE LOOKING TO,
FOR WHATEVER IS -- WHATEVER THE
STANDARD WAS AT THE TIME.
>> CORRECT.
>> OKAY.
AND THAT GOES BACK TO MY
QUESTION, DID NOT THE -- THESE
LAWYERS, AND YOU MAY CRITICIZE
THEM, DID THEY NOT MEET AND
TALK WITH EXPERTS WITH REGARD
TO THOSE TWO KINDS OF DNA
TESTING?
WE HAVE BOTH THE LAB THAT IS
OUT OF STATE AND THE FTLE WE
MUST LOOK TO.
>> CORRECT.
>> AND DID THEY NOT CHECK WITH
EXPERTS AND DID EXPERTS TELL
THEM THAT THIS KIND OF EVIDENCE
IS ACCEPTED TODAY IN 189 --
1999, THAT IS NOT THE STATUS OF
IT.
>> I DON'T KNOW WHERE IN THE
RECORD THAT HAS BEEN PRESENTED.
I CAN PRESUME THEY WERE TOLD
THAT.
BUT THAT IS NOTE END OF THE
INQUIRY UNDER THE FREY --
>> THEY SELECT AID STRATEGY
WITH REGARD TO THIS, WITH
REGARD TO HOW THEY ARE GOING TO
PROCEED, THEY WANT TO PRESERVE
-- FELT THEY WERE TRYING TO
PRESERVE ERROR ON THAT.
>> THEY WERE TRYING TO PRESERVE
ERROR --
>> WE HAVE TO LOOK, IS THAT AN
UNREASONABLE STRATEGY, WOULDN'T
THAN THE PROPER ANALYSIS, THAT
NO LAWYER WOULD ACCEPT THAT
KIND OF STRATEGY HAVING THAT
EVIDENCE AT THE TIME?
>> UNDER THE -- EFFECTIVENESS
OF COUNSEL STANDARD WE'D LOOK
TO WHETHER THEIR STRATEGY WAS
REASONABLE, HOWEVER --
>> RIGHT.
>> HOWEVER THEIR STRATEGY WAS
BECAUSE THEY HAD NOT RECEIVED
THE BONE TECH PROTOCOLS AND
PROCEDURES AND HAD NOT BEEN
ABLE TO HAND IT OVER TO THEIR
EXPERT, THEY COULD NOT PROCEED.
>> THAT IS NOT A FREY TESTING,
THAT IS A DEFENSE AGAINST IT,
ISN'T IT?
>> I'M SORRY.
I DON'T UNDERSTAND.
>> THE FREY TESTING IS A
QUESTION OF WHETHER YOU WILL
TEST IT AT THE TIME AND YOU SAY
THEY FAILED TO DO THAT, SO THAT
IS AN QUESTION OF
WHETHER THEY TEST IT AT THE
TIME.
THAT'S AN INEFFECTIVE
ASSISTANCE OF
DOWN -- COUNSEL.
THAT'S INEFFECTIVE
ASSISTANCE OF COUNSEL ISSUE
BUT IT IS INTERMINGLE WITH
THE FREY TESTING.
YOU CANNOT SEPARATE THOSE IN
THIS CASE.
BUT IT'S IN THE EVIDENCE.
>> BUT THE TRIAL JUDGE.
>> I DON'T KNOW IF IT'S COME
ACROSS HERE.
ON PAGE 23 OF THE FINDING HE
SAID THE DEFENDANT'S CLAIM
IS BASED UPON A
MISUNDERSTANDING OF THE
PURPOSE OF A FREY HEARING.
AGAIN THE PURPOSE IS NOT TO
TEST THE WEIGHT TO BE GIVEN
OF THE ITEM OF EVIDENCE
RATHER THE PURPOSE OF THE
FREY HEARING IS TO DETERMINE
WHETHER THE SCIENTIFIC
METHODOLOGY EMPLOYED THE
GENERALLY IS ACCEPTED.
>> EXACTLY.
>> ISN'T THAT -- IS THAT A
CORRECT STATEMENT?
>> THAT'S A JUDGE'S
STATEMENT.
I AGREE WITH THAT.
HOWEVER, I BELIEVE THAT THE
JUDGE HAS MISCHARACTERRISED
WHAT NEEDS TO BE DONE AT A
FREY HEARING.
THERE'S TWO PARTS TO THAT.
NOT JUST ONE PART.
THE SCIENCE MIGHT BE
ACCEPTABLE.
THE PROCEDURES MAY NOT BE.
THAT'S ON A CASE-BY-CASE
BASIS.
THIS COURT SAID IN THE HAYS
DECISION THAT WHEN YOU TWO
THINGS WERE IMPORTANT FROM
THAT.
FIRST, THERE WAS A STAMP OF
APPROVAL ON DNA TESTING IN
THE STATE OF FLORIDA IN 1995
FOR THE FIRST TIME.
AND SECONDLY, THERE WAS
REFERENCE TO AND
ACKNOWLEDGEMENT OF WHO SETS
THE STANDARD, WHICH IS A
NATIONAL RESEARCH COUNCIL OF
THE AMERICAN ACADEMY OF
SCIENCES.
ALSO IN THAT HAYS CASE,
THERE WERE ASSUMPTIONS AND
ONE OF THE ASSUMPTIONS THAT
WAS CITED WAS THE FORCED
ASSUMPTION THAT EVEN IF THE
SCIENCE IS ACCEPTABLE, THAT
THIS IS A CASE BY CASE
ASSESSMENT OF THE PROPER
PROCEDURES AND PROTOCOLS
BEING FOLLOWED.
LET ME JUST JUMP IN ON THE
NEXT STEP.
WHAT PREJUDICE HAVE YOU
SHOWN?
THAT REGARDING THE
METHODOLOGY OR THE TESTING
IN THIS CASE.
THE PREJUDICE IS THE CHAIN
OF CUSTODY.
>> THAT'S NOT THE PROTOCAL.
THAT'S THE POLICE YOU'RE
CHALLENGING NOT THE PROTOCOL
USED AT THE LAB.
I DISAGREE WITH THAT.
WE UNDERSTAND WHAT YOU ARE
SAYING IS YOUR ARGUMENT.
I WILL BE VERY CLEAR.
WE DO SAY THE CHAIN OF
CUSTODY WITH DNA TEST SING A
PART OF THE PROCEDURES THAT
NEEDS TO BE ANALYZED.
>> BUT NOT AT THE LAB.
IS -- THIS IS AT THE LOWER
LEVEL.
>> AT THE LOWER LEVEL AND AT
THE LAB LEVEL.
AGAIN, YOU ARE MIXING THESE
TWO THE POINT YOU ARE SORT
OF CONFUSING THE COURT.
WE NEED YOUR HELP.
>> OKAY.
>> WITHOUT TRYING TO PARCH
THESE OUT.
I UNDERSTAND THE ARGUMENT TO
BE THE CHAIN OF CUSTODY
ARGUE.
YOUY POLICE WORK.
NOT THERE WAS A CHAIN OF
CUSTODY PROBLEM WITH THE
LAB.
>> CORRECT.
IT IS ABOUT THE POLICE
PROCEDURES.
ARE LET ME GO BACK IF I CAN
HELP YOU.
>> PLEASE.
>> AND MYSELF.
WITH THE NATIONAL RESEARCH
COUNCIL REQUIREMENTS.
BECAUSE THEY HAVE ISSUE
REPORTS AS RECITED BY THIS
COURT IN THE HAYS DECISION.
AND ONE OF THESE REPORTS
DISCUSSES AND CITES THE
REQUIREMENT FOR A CRITICAL
NEED FOR WELL DOCUMENTED AND
THE SECURE CHAIN OF CUSTODY
IN DNA CASES.
AND ESPECIALLY BECAUSE OF
THE INDIVIDUAL NATURE OF THE
DNA AND BECAUSE IT BECOMES
THE PRIMARY FOCUS OF THE
TRIAL AND THE OVERRIDING
BASIS FOR THE GUILT OF A
DEFENSE.
AND IT FURTHER SAYS THE
RELATIVE EASE BY WHICH IT'S
MISHANDLED AND MANIPULATED
BY CARELESS OR UNSKAOUPLOUS
OR THE INTEGRITY OF THE
CHAIN OF CUSTODY THE
PARAMOUNT.
METICULOUS CARE, ATTENTION
TO DETAILS, THOROUGH
DOCUMENTATION EVERY STEP OF
THE PROCESS TO FINAL LAB
REPORT.
NOW.
>> THEN WHEN YOU ANSWER
JUSTICE BELL'S QUESTION IS
THAT WITHIN THIS ONE IF IT
WEREN'T HANDLE PROPERLY AND
IT WAS DEGRADED WHERE IS THE
EVIDENCE WITH REGARD TO THE
FALSE POSITIVE COMING BACK
DEGRADED DNA.
THAT'S GOES TO THE PREJUDICE
QUESTION YOU ASKED ABOUT.
DOES THE EVIDENCE SHOW IT
PRODUCES FALSE POSITIVE?
DOES THE EVIDENCE PROVE JUST
THE OPPOSITE THAT IT DOES
NOT PRODUCE FALSE POSITIVE
AS IT OCCURS?
>> THE EVIDENCE SHOWS THAT
IT DOES NOT PRODUCE FALSE
POSITIVES.
>> ALL RIGHT.
>> ALTHOUGH WE DID HAVE ONE
EXPERT SAY THERE CAN BE A
FALSE POSITIVE.
THAT'S NOT THE ISSUE.
THE ISSUE IS THE PROPER
PROCEDURES THAT SHOULD HAVE
BEEN CHALLENGED AND SHOULD
HAVE BEEN SCRUTINIZED AT THE
TRY HEARING AT THAT LEVEL
PRIOR TO THE ADMISSION INTO
EVIDENCE.
AND BACK TO AIDING THE COURT
IN OUR -- HOW OUR ARGUMENT
FLOWS, THE PROCEDURE START
LIKE YOU SAY AT THE CRIME
SCENE.
HOWEVER, THE NATIONAL
RESEARCH COUNCIL DOESN'T
EXPECT THE LABORATORIES TO
BE RESPONSIBLE FOR WHAT IS
EVIDENCE AS BEING COLLECTED
IN THE CRIME SCENE AND HOW
IT'S BEING COLLECTED.
IT IS RESPONSIBLE FOR THE
LAB PROCEDURES ITSELF.
NOW.
>> DID YOU PRESENT EVIDENCE
AT THE EVIDENTIARY HEARING
THAT THE PROTOCALS WERE
INAPPROPRIATE OR HAVE THEM
PRESENTED TO ANYONE?
>> YES.
>> THAT WAS PRESENTED A
PROTOCAL THAT THIS OPERATION
WAS --
>> AND ALSO DFLE.
THE TRY HEARING CONCERNED
BOTH THE RFLP AND THE FTR
TESTING NOT JUST ONE TESTING
AND EVEN THOUGH COUNSEL NEW
IT AND WOULDN'T ASK THE
QUESTION OR PRESENT A
WITNESS AT THE FREY HEARING
THEY HAD ALL THE MATERIALS
FOR THE FRLP TESTING FROM
FDLE.
THEY JUST WERE REASKING FOR
THEM FROM BOTH SIDES.
I'M GOING BACK TO THE ACTUAL
CHAIN OF CUSTODY.
I KNOW YOU'RE FAMILIAR WITH
THE PROBLEMS INHERENT.
RATHER THAN GOING THROUGH
THOSE LET'S TALK ABOUT THE
ACTUAL EVIDENCE THAT WAS
PRESENTED WHICH WERE
CLIPPINGS, NA EVIDENCE FOUND
ON TWO OF THE CLIPPINGS THAT
WERE TAKEN FROM THE BEDDING
AND WE KNOW THAT THE COURT
IN ITS ORDER DENYING RELIEF
CONCENTRATED ON AND SAID
LOOK BASICALLY TO PARAPHRASE
THAT IF THOSE -- IF THE DNA
IS INTACT THE CHAIN OF
CUSTODY IS INTACT ALL THE
OTHER ISSUES ARE BECOME LESS
SIGNIFICANT.
WHICH, OF COURSE, I DON'T
BELIEVE IS TRUE.
I THINK THAT EVERY ISSUE IS
SIGNIFICANT AND NEEDS TO BE
LOOKED AT ON ITS OWN.
HOWEVER, THE OVERRIDING
EVIDENCE THAT YOU FIND A
SHEET AND THAT SHEET IS WHAT
THE COURT IS FOLLOWING WHERE
HAS THAT SHEET GONE.
WHERE HAS THE BEDDING B AND
HE SHOWS BY THE ATTACHMENT
OF THE RECORD HOW IT FINALLY
HAS CLEARED UP ANY ISSUE OF
CHAIN OF CUSTODY.
THE SHEET IS NOT THE
EVIDENCE THAT WAS USED AGAIN
MR. OVERTON.
IT'S THE CLIPPING TAKEN FROM
THE SHEET THAT WAS MISSING
OR NOT EVER PLACED INTO
EVIDENCE UNTIL AFTER
DR. POPE LEFT THE LAB AND
THEY WERE PRESENTED TO DIANE
ODEL AT THE PROPERTY ROOM OF
THE MONROE COUNTY SHERIFF'S
OFFICE.
HOW ABOUT THE SWABS THAT
WERE COLLECT TATD SCENE AND
BY THE OTHER VICTIMS
SKWRAOPL THE SWABS WERE
MISSING ALSO IN SENSE THEY
WEREN'T DOCUMENTED PROPERLY.
THEY WERE WITHIN THE DNA KIT,
THOUGH AND WE KNOW THEY WERE
AT LEAST ONLY OUTSIDE OF THE
PROPER REALM FOR THE 24
HOURS ALTHOUGH THEY WEREN'T
DOCUMENTED.
>> WHAT DID THOSE SWABS
SHOW?
>> THAT HAS NEVER BEEN
TESTED.
>> THEY NEVER TESTED ANY OF
THOSE?
IT DOESN'T SHOW THE SCENE
COLLECTED FROM THE BODY OF
VICTIM BELONGS TO DNA
TESTING CAME FROM
MR. OVERTON.
>> IT'S NOT BEEN TESTED.
THAT WAS ALLOWED TO BE
TESTED IN THE COURT AND
INEXPLICABLY WERE THE
TESTING NOT PREFP -- FINISHED.
>> I WANT TO FINISH UP ON
CHAIN OF CUSTODY.
DIANE ODEL DISCUSSED TO THE
COURT AND SAID THE CHAIN WAS
INTACT.
SOMEHOW SHE
REFUSE -- RECEIVED THE
ENVELOPE AND THE CLIPPINGS
FROM STKEUPLERMAN WHO HAD
BROUGHT THEM FROM THE LAB
AFTER DOC POPE LEFT.
THEY WERE IN A TUBBER WAEUR
CONTAINER UNSEALED
ENVELOPES.
HER TESTIMONY WAS THAT THE
LAB -- EXCUSE ME SHE KNEW
THEY WOULD GO TO FDLE AND
THEY WOULDN'T ACCEPT THEM IN
AN UNSEALED CONDITION.
AND, ALSO, THAT WE, MEANING
THE PROPERTY ROOM OF
MONOCOUNTY SHERIFF'S WAS
DON'T ACCEPT AN UNSEALED
CONDITION.
SO THEREFORE, SHE SEALS
THEM.
SHE SEALS THEM; SHE ACCEPTS
THEM EVEN THOUGH SHE SAID WE
DON'T ACCEPT THEM IN AN
UNSEALED CONDITION.
SHE ACCEPTS THEM AND PUTS
THE TAPE ON HIM AND SHE PUTS
HER INITIALS ON THAT TAPE.
>> I STILL THINK THE BOTTOM
LINE HERE THE IF WE ACCEPT
YOUR ARGUMENT THAT THERE WAS
SOME PROBLEMS WITH THE CHAIN
OF CUSTODY OF THESE PIECES
OF EVIDENCE, WHERE DOES THAT
TAKE US?
WHAT IS THE PREJUDICE TO
MR. OVERTON?
>> I THINK TO THE TESTIMONY
OF DR. WHO TESTIFIED AT THE
EVIDENTIARY HEARING THAT
THEY HAVE SPECIFIC CONTROL
MEASURES IN PLACE AT THEIR
LAB.
AND THAT THESE OF COURSE ARE
ADHERING TO THE NATIONAL
RESEARCH DOWN -- COUNSELS
PROCEDURES THAT HAVE BEEN
SET UP.
>> EVEN IF WE ACCEPT THAT.
I REALLY WANT YOU TO TELL
ME.
OKAY ALL OF THIS TOOK PLACE.
THERE WAS AN ERROR.
TRIAL COUNSEL SHOULD HAVE
BROUGHT IT TO THE ATTENTION
OF THE COURT.
>> AND IT WOULDN'T HAVE COME
INTO EVIDENCE.
>> AND THE RELIEF GIVING TO
MR. OVERTON.
>> IT SHOULD NOT HAVE COME
INTO EVIDENCE.
DR. POLLARD EVIDENCE
TESTIFIED THEY WOULD NOT
ACCEPT THE ENVELOPES IF THEY
WERE NOT SEALED.
THE ENVELOPES WERE SEALED
IMPROPERLY AND ACCEPTING
THEM FROM A PERSON WHO HAD
NO LINK IN THE CHAIN OF
CUSTODY.
THEY HAD BEEN NOT EVEN IN
EXISTENCE ACCORDING TO
RECORDS FOR OVER 18 MONTHS,
THEY HAD BEEN
COMPLETELY -- IN FACT WOULD
HAVE KNOWN THEY EXISTED.
HAD NOT DOC POPE LEFT THE
SHERIFF'S OFFICE.
AND THEY WERE DELIVERED IN
THE TUBERWARE CONTAINER.
THEY WERE DELIVERED IN AN
UNSEALED ENVELOPES AND THAT
IS THE UNBELIEVABLE BREAK IN
THE CHAIN OF CUSTODY.
THEY WOULD NOT HAVE BEEN
ACCEPTED BY THE LAP -- LABS
AND ACCORDING TO THE
NATIONAL RESEARCH COUNSEL
STANDARD PROCEDURES IN THE
COLLECTION ARE CHALLENGEABLE,
PROCEDURES IN THE PROCESSING
AND PROCEDURES IN THE
STORAGE.
>> DID ANYBODY TESTIFY THAT
AS A RESULT OF THIS BREAK IN
CHIP OF CUSTODY OR THESE
IMPROPRIETIES THAT YOU
OUTLINED THAT THE SAMPLES
WERE CONTAMINATED AND WERE
THEREFORE NOT RELIABLE
SAMPLES TO TEST?
>> THERE||
NOT -- NO.
ONE MORE QUESTION.
YOU'VE GONE OVER FIVE
MINUTES.
>> I JUST WANT TO UNDERSTAND
THIS.
YOU ARE SAYING THAT
BASICALLY WE WOULD NEVER GET
TO WHETHER OR NOT THEY WERE
CONTAMINATED, BECAUSE THEY
WOULD HAVE BEEN EXCLUDED
SIMPLY BECAUSE THE CHAIN OF
CUSTODY HAD BEEN BROKEN.
IS THAT REALLY WHAT YOUR
ARGUMENT IS?
>> YES.
>> THANK YOU.
>> GOOD MORNING.
MAY IT PLEASE THE COURT,
CELIA TERENZIO ON BEHALF OF
THE PEOPLE OF FLORIDA.
START RIGHT THERE.
>> WHAT'S THE QUESTION?
>> PULL YOUR MICROPHONE UP A
LITTLE BIT.
THERE YOU GO.
>> OKAY.
>> GREAT.
>> THERE WAS NO TESTIMONY
FROM THE TKRB.
MY CONCERN IS EVERYBODY IS
TALKING ABOUT A BREAK IN THE
CHAIN OF CUSTODY.
THERE HAS NOT BEEN ANY
EVIDENCE ANYWHERE AT TRIAL,
AT THE EVIDENTIARY HEARING
THAT THERE WAS A BREAK IN
THE CHAIN OF CUSTODY.
THEY TAKE HOME PUT IN
REFRIGERATOR.
IT'S NOT THE TYPE OF BREAK
IN THE CHAIN.
>> IN TERMS OF THE STORAGE
AND THAT'S WHAT THAT IS,
IT'S NOT A BREAK IN THE
CHAIN OF CUSTODY, THE
STORAGE OF THE BED SHEETS
FOR THOSE TWO OR THREE DAYS
AT THE SERELOGIST HOUSE.
THE DOCTOR WAS AWARE OF THAT
INFORMATION AT THE FREY
HEARING.
THAT WAS FLUSHED OUT, AGAIN,
THEY TALKED ABOUT -- IT WAS
UNCONVENTIONAL, HOWEVER,
THEIR ONLY CONCERN THAT,
THAT WAS DONE THAT IT WOULD
HAVE DEGRADED THE EVIDENCE
AND IN THIS CASE AT THE
EVIDENTIARY HEARING IN 2004
AND AT THE FREY HEARING IN
1999 BOTH THE BODE DOCTOR
AND THE DOCTOR FROM FDLE
SAID THAT THIS SEE MONEY.
THIS DNA WAS NOT DEGRADED AT
ALL.
IT WAS PERFECTLY INTACT.
SO THE FACT THAT THERE WAS
STORAGE AT SOMEONE'S HOME,
ALTHOUGH CLEARLY NOT
ACCEPTABLE HAD NOTHING TO DO
WITH THE CHAIN OF CUSTODY.
THAT GOES TO TAMPERING
ISSUE.
THE STORAGE GOES TO THE
QUALITY OF THE INTEGRITY OF
THE DNA ITSELF.
AND THERE HAS BEEN NO
CHALLENGE IN -- NOR CAN
THERE BE THAT THIS TNA WAS
IN ANY WAY DEGRADED.
>> WHAT -- JUST SO I
UNDERSTAND THE SEPARATE
ARGUMENT THAT THERE WAS
TESTIMONY THAT IF IT HADN'T
BEEN SEALED THERE WOULD NOT
HAVE EVEN ACCEPTED IT FOR
TESTING TO DO CLARIFY WHERE
THAT CAME IN AND I DON'T
REMEMBER THAT TESTIMONY.
BUT DR. POLLOCK AT THE
EVIDENTIARY HEARING.
NOW THIS DNA EVIDENCE WAS
GIVEN TO FDLE BACK IN 19993.
AND I GUESS THE RESULTS CAME
BACK IN 1994.
NOW THE CHAIN OF CUSTODY WAS
INTACT AND THERE HAD NEVER
BEEN ANY EVIDENCE PRESENTED
OR DISCUSSED AT THE TRIAL
REGARDING THAT AND THERE WAS
NEVER ANY TESTIMONY THAT
DR. POLLOCK WOULD HAVE SAID
WE NEVER WOULD HAVE ACCEPTED
THAT.
THE POINT --
>> WHAT I HEAR THEM SAYING
NO THERE WASN'T TESTIMONY AT
TRIAL BECAUSE THAT'S HOW
TRIAL COUNSEL WAS DEFICIENT
BUT NOT ATTACKING IT ON THAT
BASIS.
LET'S ASSUME BECAUSE IT'S
BEEN REPRESENTED THAT THIS
TESTIMONY OF THE EVIDENTIARY
HEARING SAYING IT'S NOT
SEALED AND THEY WOULDN'T
HAVE ACCEPTED THAT FOLLOWED
THAT ARGUMENT THAT
IS -- DOES THAT MEAN, THEN
THAT IT DOESN'T EVEN -- EVER
GET TESTED OR IT GETS
EXCLUDED FROM EVIDENCE
BECAUSE OF THAT FACT?
NOT HAVING ANY
TESTIMONY -- AGAIN -- WHATEVER
THE PROTOCOLS WERE IN 1993
OR 1994, I DON'T BELIEVE
THEY ARE SAY IMAGE NOW THAT
PACK IN '9 THE FACT THAT IT
WAS UNSEALED THAT IT WOULD
NOT HAVE BEEN ACCEPTED.
BUT THAT'S EXACTLY WHAT YOU
SAID.
>> BACK IN '93 OR, YOUR
HONOR I THOUGHT THEY WERE
DISCUSSING WHAT HAPPEN AT
THE FREY HEARING.
THE FREY HEARING WAS SIX
YEARS LATER, AFTER THIS WAS
ACTUALLY TESTED.
AND, AGAIN, TO LOOK
BACKWARDS --
>> ARE YOU MAKING THE
DISTINCTION BETWEEN WHAT
THEY WOULD HAVE ACCEPTED IN
1993 VERSES WHAT THEY WOULD
HAVE ACCEPTED IN 1999.
>> YES.
YES, MA'AM.
AND, AGAIN, BECAUSE THIS WAS
ACCEPTED IN 1993 TO 1994.
>> BUT I MEAN THE
QUESTION -- BECAUSE THEY
DIDN'T KNOW IN 1993 THAT
THERE MIGHT HAVE BEEN SOME
PROBLEMS WITH THEM NOT
HAVING BEEN SEALED.
SO I'M NOT SURE I FOLLOW
YOUR ARGUMENT PARSING OUT
WHAT THEY WOULD HAVE
ACCEPTED IN '93 VERSUS 19 --
>> I WAS UNDER THE
IMPRESSION WHAT THEY ARE
DISCUSSING AT THE FREY
HEARING THAT I WOULD HAVE
SAID IN 1999 -- AS OF 1999
NOW THEY WOULD NOT HAVE
ACCEPTED THAT.
THAT'S MY POINT.
AND, AGAIN, I'M KIND OF AT
THE DISADVANTAGE BECAUSE I
DON'T KNOW WHERE IN THE
TESTIMONY THAT DR. POLLOCK
SAID HE WOULD NOT HAVE TAKEN
THIS AS IT WAS UNSEALED.
>> I GUESS WHAT WE HAVE TO
DO IS LOOK AT WHETHER ANY OF
THIS WOULD CONTRIBUTE
ASSUMING THEIR DEFICIENCIES
TO UNDERMINE CONFIDENCE.
AND I THINK THE KEY THING
YOU HAVE SAID AND I DON'T
THINK THEY REFUTED IS THAT
THIS DNA EVIDENCE, WHATEVER
MIGHT HAVE HAPPENED IN THIS
COURSE WAS NOT DEGRADED, NOT
AT THE LEAST.
AND THERE'S NOTHING -- SO
THEREFORE, IT'S -- THERE'S
NO REASON TO DOUBT THE
VALIDITY OF THE DNA TEST
RESULTS, WHICH OF
COURSE -- IS REALLY WHERE WE
GET CONCERNED.
WE WOULD HATE TO THINK THAT
SOMEHOW SOMETHING HAPPENED
TO CAUSE THERE TO BE A
FINDING THAT MR. OVERTON'S
DNA WHEN IN FACT BECAUSE OF
SOMETHING OCCURRED IN HOW IT
WAS COLLECTED OR STORED IT
COULD HAVE BEEN SOMEONE
ELSE'S.
THAT'S WHERE CONCERN CAME
IN.
>> EXACTLY.
AND WE, AGAIN GO THE WHAT
JUSTICE LEWIS WAS SAYING.
THERE'S A DIFFERENCE BETWEEN
CHAIN OF CUSTODY WHICH WENT
TO THEIR ARGUMENT FOR
TAMPERING, VERSUS THE
PROTOCALS AND THE TESTING
THAT WAS DONE IN JUSTICE
BELL WAS CORRECT THAT THE
JUDGE AND ACTUALLY IT'S ON
PAGE 2 OF THE JUDGE'S ORDER
AND 2850 OF THE RECORD HE
WENT RIGHT TO THE HEART WHEN
HE WAS DENYING THE CLAIM.
HE SAID, LOOK, YOUR PROBLEM
IS YOU ARE MIXING APPLES AND
ORANGE, CHAIN OF CUSTODY
GOES TO THE WEIGHT OF THE
EVIDENCE, ONLY NOT TO THE
INTEGRITY OF THE DNA OR THE
TESTING OF THE DNA AND THERE
WAS TESTIMONY AT THE
EVIDENTIARY HEARING BY TWO
DOCTORS THAT THERE'S NO SUCH
THING AS A FALSE POSITIVE
WITH THIS, IF THERE WERE
TAMPERING OR IN THE CHAIN OF
CUSTODY THEY WILL NOT COME
BACK A FALSE POSITIVE.
IT'S NOT GOING TO COME BACK
AT FALSE POSITIVE.
I WILL COME BACK AS A ZERO.
>> I GUESS THE TAMPERING
WOULD BE I DON'T THINK THEY
ADVANCE THIS TEARRY THAT
SOMEHOW SOMEONE PUT THEIR
DNA THERE.
I GUESS THAT WOULD BE THEIR
ARGUMENT.
>> WHICH IS KIND OF
INCONSISTENT WITH
EITHER -- EITHER IT IS HIS
OR IT ISN'T.
HOW IT GOT THERE IS A
COMPLETELY SEPARATE ISSUES.
THAT'S WHY THE ISSUE ARE
SEPARATE AND SHOULD BE
SEPARATE DOESN'T EFFECT
DEFENSE DOWN -- COUNSEL WHEN
THEY TRIED TO PURSUE THAT
BEFORE THE FREY HEARING THEY
ASKED THEIR DOCTOR ABOUT
THAT AND HE SAID, NO WAY IT
DOESN'T MATTER.
>> ISN'T PART OF THEIR
ARGUMENT THAT THIS EVIDENCE
WAS NOT TAKEN FROM THE CRIME
SCENE DIRECTLY TO THE POLICE
STATION THAT THERE WAS SOME
TIME IN BETWEEN, YOU KNOW
WHETHER YOU TALK ABOUT ONE
THAT WAS THREE DAYS OR THE
OTHER PIECE THAT WAS 18
MONTHS THAT IN THAT TIME IN
BETWEEN YOU CAN'T REALLY
ACCOUNT FOR WHAT MAY HAVE
HAPPENED TO THAT EVIDENCE
AND DOES THAT DOVETAIL INTO
THE WHOLE ARGUMENT THAT
MAYBE THIS EVIDENCE WAS
PLANTED ON THE --
>> PLANTED, YES.
YES.
>> PLANTED.
BUT IT DOESN'T GO TO THE
INTEGRITY OF WHOSE DNA IT
IS.
>> THAT'S WHAT YOU POINTED
TO.
TALK ABOUT THE ISSUE WITH
REGARD TO THAT CHAIN OF
CUSTODY.
THAT'S WHAT SHE IS ASKING.
I'M ASKING.
AS I UNDERSTAND THE ARGUMENT
AT LEAST A PART OF THE CHAIN
OF CUSTODY ARGUMENT IS THAT
THERE'S THIS TIME THAT IS
NOT ACCOUNTED FOR AND THAT
DURING THAT TIME IS WHEN
SOMETHING MAY HAVE HAPPENED
TO THE EVIDENCE.
>> WHEN YOU SAY "NOT
ACCOUNTED FOR" I'M NOT SURE
I UNDERSTAND WHAT YOU ARE
SAYING --
>> WELL IT WASN'T IN POLICE
CUSTODY AT THE POLICE
STATION.
>> NO, IT WASN'T.
IT WAS APPROXIMATELY THREE
DAYS HE SIGNED OUT FOR IT
AND TOOK IT TO HIS HOME TO
DRY IT AND THEN BROUGHT IT
BACK.
WHEN YOU TALKED ABOUT.
>> IS THIS STANDARD
PROCEDURE?
>> NO, I DON'T THINK IT IS.
>> ARE THERE CASES THAT WE
HAVE ACROSS FLORIDA LAW IT'S
NOT UNUSUAL THAT JUST IN AN
EXPERIENCED POLICE OFFICERS
TAKE THINGS THERE THE SCENE
OF THE ACCIDENT, GOES HOME
WITH THEM OVERFIGHT AND THEN
COMINGS BACK AND THOSE
THINGS.
DOESN'T THAT HAPPEN FROM
TIME TO TIME?
DO WE HAVE ANY LAW ON THAT?
>> I'M SURE IT HAS.
IN HERE, I SUPPOSE THE
ARGUMENT IS THAT, AGAIN, IF
IT'S HOME THEN MAYBE
SOMETHING CAN CONTAMINATE IT
OR IT GETS DEGRADED.
WE KNOW THAT DIDN'T HAPPEN
HERE.
WE KNOW IT WASN'T DEGRADED.
>> RIGHT.
>> OKAY.
>> GO TO THE SAMPLING PART.
AS THIS COURT SAID IN ITS
DIRECT APPEAL OPINION
THERE'S NOT ONE CINTILA OF
EVIDENCE THAT
THERE'S -- THERE WAS
TAMPERING OF EVIDENCE THEY
WERE PROVIDED TO OPPORTUNITY
TO ADDRESS THAT IN 2004 AND
THEY PRESENTED NO EVIDENCE
OF TAMPERING.
WHEN YOU TALK
ABOUT -- DR. POPE, SAID I
TOOK IT HOME.
WHEREVER THIS EVIDENCE WAS
IS ACCOUNTED FOR.
IT'S NOT THAT IT WAS LOST
SOMEWHERE.
AND I BELIEVE THAT'S WHAT
YOU ARE TALKING ABOUT WHEN
YOU TALK ABOUT INTACT CHAIN
OF CUSTODY.
IS OKAY WHO TOOK IT?
WHO SIGNED FOR IT?
WHEN DID IT COME BACK.
WHERE WAS IT WHEN IT WASN'T
HERE?
>> THAT'S THE QUESTION.
IF YOU HAVE A LAB IN THE
POSSESSION OF A POLICE
OFFICER IS EVIDENCE UNDER
FLORIDA LAW THEREFORE JUST
AUTOMATICALLY EXCLUDED?
>> ABSOLUTELY.
OBVIOUSLY NOT BECAUSE THIS
WAS ALL LITIGATED AT THE
TRIAL.
ALL OF THIS INFORMATION.
AS A MATTER OF FACT
EVERYTHING THAT HEY ARE
DISCUSSING THEY GET FROM THE
TRIAL CRYPTS.
SO THIS ISN'T ANYTHING NEW.
WHAT THEIR ARGUMENT IS AS TO
WHAT HAPPENED AT THE FREY
HEARING, CORRECT?
>> RIGHT.
AND THE JUDGES ORDER ARE
GOING BACK TO THE PAGE YOU
VERY REFRING TO SAID THAT
EVEN IF THIS PLANTED
EVIDENCE THEORY HAD BEEN
GIVEN A DEGREE OF
CREDIBILITY IT WOULD HAVE
KEPT THE ANALYSIS METHOD
FROM PASSING MUSTER AT THE
FREY HEARING.
SO THAT -- THAT'S SEEMS TO
BE THE ISSUE IS WHETHER THIS
CHAIN OF CUSTODY ARGUMENT
PUTS SOME LACK OF
CREDIBILITY INTO THE STRDNA
TESTING THAT WAS DONE.
>> AND, AGAIN THE TESTIMONY
AT THE EVIDENTIARY HEARING
WAS YOU WILL NOT GET A FALSE
POSITIVE ON THAT.
YOU WILL COME BACK WITH
NOTHING.
AND THAT DIDN'T HAPPEN HERE.
>> I GUESS IT ALSO GOES TO
THE ISSUE THAT THE DNA
TESTING CAN NEVER RULE OUT
THAT SOMEBODY GAVE THEM THE
WRONG SAMPLE.
OF COURSE.
UNTIL HE GETS TO THAT
POSSESSION.
THAT'S --
>> EXACTLY.
DID YOU ADDRESS THE 3.8523
ISSUE -- LIKE THE
POSSIBILITY OF HIS HAIR
BEING ANOTHER PERSON'S HAIR
ON THE TAPE AND WHY THAT
SHOULDN'T BE DNA TESTED?
>> THE TRIAL COURT
FOUND -- FIRST OF ALL, WE
DON'T KNOW IN THE DEFENDANT
BROUGHT THAT TAPE WITH HIM
OR IF IT WAS ALREADY AT THE
SCENE.
I MEAN, EVERYBODY IS
SPECULATING.
THERE'S ABSOLUTELY NO
EVIDENCE AS TO WHEN THAT
TAPE GOT ON THE SCENE.
THAT'S NUMBER ONE.
NUMBER TWO, AS THE COURT
SAID THERE'S NO WAY TO KNOW
WHEN -- WHOSE HAIR IT IS --
>> BUT THEIR THEORY IS IT IS
PLAUSIBLE THAT YOU KNOW IF
IT WAS JUST CONTAMINATED
AGAIN BECAUSE IT HAD BEEN
UNROLLED BEFORE -- AT SOME
OTHER TIME THERE WOULD BE
OTHER THINGS ON NOT JUST A
HAIR.
I GUESS WHAT I WOULD LIKE
YOU TO DO IS LET'S ASSUME
THAT THERE WAS TESTING AND
TESTING REVEALED THAT
SOMEONE'S HAIR.
>> OKAY.
>> TELL ME HOW THAT YOU KNOW
REFUTE THE ARGUMENT THAT,
THAT STILL WOULDN'T LEAD TO
A PROBABILITY OF AN
ACQUITTAL OR A
PROPORTIONALITY ISSUE.
THEY CONCEDED AT THE HEARING
WHEN THEY REQUESTED THE DNA.
THEY CONCEDED TWICE THAT
THIS WOULD NOT EXONERATE
THEIR CLIENT.
OKAY.
SO THAT IS OBVIOUSLY TAKING
CARE OF.
AND IT GOES BACK TO THE
BIGGER GRAND QUESTION IF IT
IS NOT THE DEFENDANTS AND
THEY ARE SAYING THERE'S A
PROPORTIONALITY ARGUE.
WHY DON'T THEY TELL US WHO
THAT OTHER PERSON WAS?
THEY DIDN'T GIVE ANY OF THAT
INFORMATION TO THIS JUDGE.
THEY ARE SAYING JUDGE, LET'S
TEST THIS HAIR.
IF IT'S NOT THE DEFENDANTS
AND IT'S NOT THE VICTIM THEN
IT HAS TO BE THE OTHER -- IT
THOSE BE THE COPERPETRATOR.
>> THAT'S A HUGE LEAP AND
UNTIL THEY CAN FILL IN THAT
HUGE GAP THAT YOU GO FROM
HAIR ON TAPE TO BEING A
COPERPETRATOR YOU'VE GOT TO
FILL IN SOME GAPS WHICH THEY
HAVE YET TO DO.
>> I GUESS JUST FROM A
PURSUING JUSTICE POINT OF
VIEW WOULDN'T THE STATE BE
CONCERNED OR INTERESTED EVEN
IF IT DOESN'T EXONERATE OR
MINIMIZE THE CULPABILITY IN
THIS CASE IF THERE'S ANOTHER
PERSON THERE THAT, THAT
PERSON OUGHT TO BE PURSUED.
WHAT'S THE STATE'S -- I KNOW
WE HAD LOOKED AT THIS ISSUE
OF BEING SOMEONE ELSE THERE.
>> BECAUSE THERE ISN'T ANY
EVIDENCE THAT THERE WAS
SOMEBODY ELSE THERE.
AND AS A MATTER OF FACT THE
GAMESMANSHIP ON HOW THEY
PRESENTED THIS CLAIM EVEN
UNDERSCORES THE FACT THAT
THERE WASN'T ANYBODY ELSE
THERE.
I MEAN, THEY ARE TRYING TO
SAY NOW THAT IN A MITGATED
SENSE, OKAY SO THAT MEANS
THEY CONCEDED THEY ADMITTED
HE WAS THERE.
AND AS JUSTICE LEWIS SAID IT
DOESN'T NEGATE THE FACT THAT
HE RAPED MISSY McTKPWAOEUFER.
WHY AREN'T THEY TELLING THE
PERSON.
YOU SEE IT'S A SHELL GAME
THAT THEY ARE PLAYING AND
KEEPING EVERYBODY ELSE IN
THE DARK.
THERE'S ABSOLUTELY NO
EVIDENCE THAT THERE WAS NOT
PERPETRATOR.
>> THEY DIDN'T ARGUE
ALTERNATIVELY THAT EVEN AS A
MATTER OF FACT THE STATE
VIGOROUSLY OPPOSED THAT
THEORY AND AT TRIAL THEY
PRESENTED A CRIME SCENE
EXPERT TO SUGGEST THAT, THAT
MAY HAVE BEEN, AND OBVIOUSLY
THE STATE PRESENTED EVIDENCE
THAT NO THIS WAS THOMAS
OVERTON WAS THE ONE AND ONLY
PERSON THERE.
AND OBVIOUSLY THOMAS OVERTON
IS THE ONLY PERSON WHO KNOWS
IF THAT IS TRUE OR NOT AND
IF THERE WAS SOMEBODY ELSE
THERE HE COULD GIVE THAT
INFORMATION TO CONNECT THE
DOTS AND THEN MAYBE THAT
HAIR WOULD BECOME RELEVANT.
BUT AT THIS POINT HE'S NOT
PRESENTED THAT TO THE TRIAL
COURT OR TO THIS COURT.
NOW BACK -- JUST IN TERMS OF
THE CHAIN OF CUSTODY, AGAIN,
THERE HAS BEEN NO EVIDENCE
THAT THERE WAS A BREAK IN
THE CHAIN.
AS A MATTER OF FACT IN, THE
3850 OPINION OF THE COURT
THE COURT GOES THROUGH THE
TESTIMONY AND ATTACHES IT TO
THE COURT'S ORDER
DEMONSTRATING THAT THIS WAS
A PERFECTLY INTACT CHAIN OF
CUSTODY.
>> LET ME JUST ASK YOU THIS.
JUST TO CLARIFY.
THE EVIDENCE THAT WAS
MISSING FOR THREE DAYS, WHO
HAD THAT EVIDENCE?
>> IT WASN'T MISSING.
>> NOT MISSING.
BELIEVED CUSTODY AT THE
STATION THAT THOSE THREE
DAYS.
WHO HAD IT.
>> THE SERELOGIST DR. POPE
HAD IT AT HIS HOME.
>> IN HIS REFRIGERATOR.
>> NO, THIS WAS THE BED
SHEET.
>> WHAT WAS IN SOMEONE'S
REFRIGERATOR.
THAT WAS IN THE LAB.
THE REFRIGERATOR IN THE LAB.
AND I THINK YOU ARE TALKING
ABOUT THE SWABS.
>> I THINK THEY WERE
REFERENCING BEING IN
TUBERWARE SE -- TUBERWARE.
THERE WAS NO SEMON BECAUSE
IT HAD BEEN DEGRADED.
THAT WAS THE PRELIMINARY
TESTING.
THE TRIAL COURT, THOUGH, HAS
SENSE GRANTED THE DNA
TESTING OF THOSE -- OF THAT
SWAB AND AGAIN THAT -- WE
DON'T AN ANSWER.
>> THERE'S STILL SOMETHING
ONGOING?
>> I BELIEVE THERE IS.
AND I WOULD LIKE TO CLEAR UP
THE MISREPRESENTATION BY THE
DEFENSE THAT THE JUDGE
REFUSED TO CONTINUE THE
DNA -- EXCUSE ME -- REFUSE
TO CONTINUE THE EVIDENTIARY
HEARING SO THAT TESTING
COULD BE PROVIDED THAT COULD
NOT BE FURTHER FROM THE
TRUTH THE JUDGE GRANTED A
CONTINUIANS BECAUSE THE FDLE
HAD NOT COME BACK WITH THE
RESULTS.
THE HEARING WAS SUPPOSED TO
BE IN SEPTEMBER.
HE SET IT FOR NOVEMBER.
THE COUNCIL SAID THE RESULTS
MAY NOT BE IN YET SO WE NEED
ANOTHER CONTINUIANS.
THE COURT SAID WE WILL HAVE
A STATUS CONFERENCE IN
OCTOBER, LET'S WAIT AND SEE
IF FDLE HAS DONE -- HAS DONE
THE DECEMEMBER THEN WE WILL
REVIEW IT AT THAT TIME.
GOING BACK TO JUSTICE
QUINCE'S QUESTION ABOUT
WHETHER IT WAS MY
IT -- MISSING OR WHATEVER.
YOU SAID THE TUBERWARE WITH
THE SWABS IN.
YOU SAID THE BED SHEET WAS
TAKEN HOME.
IF BED SHEET WAS TAKEN HOME
FOR THREE DAYS TO DRY.
>> AND SO IT WAS AN IN-HOME
DRYING AND HE WAS COMING AND
GOING.
>> HIS HOME WAS LOCKED AND
HE SAID NOBODY ELSE -- HE
LIVES ALONE.
AND THEN HE BROUGHT THAT
BACK TO THE LAB.
AND THEN HE TOOK IT FROM THE
LAB BACK TO HIS OTHER LAB.
THAT ALL CAME OUT OF THE
ORIGINAL --
>> EVERYTHING THAT WE ARE
DISCUSSING CAME OUT AT THE
ORIGINAL TRIAL.
BUT I JUST WANT TO FINISH MY
POINT ON THE WAS
UNINTENTIONAL.
SO WE COULD $PIE.
>> THANK YOU.
AT THE OCTOBER 29th, STATUS
HEARING, THE DEFENSE
ATTORNEY WITHDRAW THE MOTION
FOR CONTINUANCE OF THE
EVIDENTIARY HEARING, SO THAT
IS WHY THE JUDGE DID NOT
GRANT A FURTHER CONTINUANCE.
THE OM THING HE DID DENY,
THERE WAS QUESTION QUEST TO
STAY THE ENTIRE 3851
PROCEEDINGS PENDING THE
TESTING OF THE SWABS, AND
THAT THE COURT DID DEMY.
IF THERE ARE NO FURTHER
QUESTION, WE ASK THE COURT
TO AFFIRM THE FACTUAL
FINDINGS OF THE TRIAL COURT
WITH RESPECT TO THE POST
CONVICTION AND THE DNA
MOTION.
THANK YOU.
>> YOU HAVE USED UP ALL YOUR
TIME PLUS FIVE MINUTES BUT I
WILL GAVE COUPLE MINUTES TO
FINISH UP.
IT IS SOMEWHAT COMPLEX.
>> UNEQUIVICALLY, I WANT TO
STATE ONE THING, MR. OVERTON
WAS IN THE AT THE SCENE.
HAS NEVER CONCEDED THAT HE
WAS AT THE CRIME SCENE.
THE SWABS ON THE TUPPERWEAR.
>> DID YOU ARGUE THE HAIR
WOULD EXONERATE THE
DEFENDANT?
>> NO.
>> DID YOU CONCEDE IT WOULD
NOT EXONERATE.
>> IT WAS CONCEDED IT WOULD
NOT EXONERATE UNDER THE
FACTSS OF THE CASE, THERE
HAS BEEN DNA THAT HAS LINKED
HIM.
THAT IS THE ONLY REASON WHY
THAT WAS CONCEDED.
>> THAT IS AN IMPORTANT --
SO WE ARE LOOKING AT ONE
THING, NOW, THE OH, WHEN YOU
SAID PROPORTIONALITY, THE
ONLY OTHER ISSUE THEN WOULD
IT SHOW THERE IS SOMEONE AT
THE SCENE, IF THE STATE IS
SAYING, THERE IS CERTAINLY
NOTHING ELSE THAT WOULD LEAD
TO A BAE LEAF, THERE IS
SOMEONE ELSE AT THE SCENE,
IT DOESN'T UNDERMINE THE
EVIDENCE THAT MR. OVERTON
WOULD BE THE PERPETRATOR OF
THE MURDER, SO I DON'T, I
JUST THINK IT IS A STRETCH
TO SAY THAT IT WOULD HAVE
ANY EFFECT ON THE PENALTY
PHASE ASSUMING IT SHOWS
ANOTHER PERSON.
>> WELL, THAT IS OUR
ARGUMENT.
BUT TO MAKE THE RECORD VERY
CLEAR, THERE WAS NOT JUST
SWABS ON THE TUPPERWEAR,
THAT IS NOT WHAT WE'RE
TALKING ABOUT.
WE'RE TALKING ABOUT,
EVERYONE LOSES TRACK OF THE
IMPORTANT EVIDENCE THAT
BECAME EVIDENCE AGAINST HIM
WHICH WAS THE CUTTINGS MADE
FROM THAT BEDDING, THAT WAS
NOT JUST MISSING FOR THREE
DAYS.
THOSE, THAT BEDDING WAS
TAKEN HOME IMPROPERLY.
WERE YOU ABLE TO ARGUE ABOUT
THAT CHAIN OF CUSTODY AT THE
TRIAL.
AND DID ARGUE THAT AT THE
TRIAL, CORRECT?
>> BUT NOT AT THE FRY
HEARING.
>> I UNDERSTAND THAT, BUT AT
THE TRIAL BEFORE THAT
EVIDENCE WAS INTRODUCED AT
TRIAL, YOU WERE ABLE TO
ARGUE THE CHACHB CUSTODY?
-- CHAIN OF CUSTODY?
>> PRELIMINARY, IT WAS
ARGUED AT THE TRIAL BEFORE
THE JURY TO, TO DISCOUNT,
YOU KNOW, THE EVIDENCE, BUT
IT WAS NOT ARGUED IN A
PREHEARING MOTION BECAUSE
THEY REFUSED TO PRESENT ANY
EVIDENCE.
AND THEY DIDN'T UNDERSTAND
HOW THE CHAIN OF CUSTODY WAS
IMPORTANT.
I DO WANT TO POINT TO THE
EVIDENCE.
>> AGAIN, YOU HAVE USED UP
YOUR TIME TODAY.
THANK YOU FOR THE ARGUMENTS.
AND FOR DIFFICULT CASE TO
UNRAVEL.
WE'LL CONSIDER YOUR
ARGUMENT.
WE THANK BOTH OF YOU FOR
GOOD ARGUMENTS?
OOCHLS THE COURT WILL TAKE
THE MORNING RECESS.
>> PLEASE SE.,,,,
THE COURT IS NOW IN RECESS.