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Leonardo Franqui v. State of Florida
SC04-2380 | SC06-36
>> THE NEXT CASE ON CALENDAR
THIS MORNING IS -- THANK
YOU.
>> FRANKIE VERSUS STATE OF
FLORIDA.
>>,,
SNIECH PLAY IT PLEASE THE
COURT BELIEVE CHIEF JUSTICE
I'M HERE REPRESENTING MR.
FRANKIE, AND, I'M ASKING THE
COURT A VERY CAREFULLY
CONSIDERED EACH OF THE
ISSUES US THE RELATE TO EACH
OUR MAIN CONTENTION ON THE
PETITION FOR MOTION TO
VACATE THE SENTENCE BEFORE
JUDGE IMUS WAS THAT THERE
WAS NO LITIGATION WHATSOEVER
OF SUPPRESSION.
>> YOU ARE VERY SOFT-SPOKEN,
WOULD YOU --
>> I'M SORRY.
>> TAKE THAT MIKE PHONE THAT
WE HAVE PROVIDED FOR YOU
THERE.
>> DOES THAT HAEPT ALL SIR.
>> YES, IT DOES.
>> OH.
GREAT.
WE PRESENTED IN OUR MOTION
TO VAI KAILT -- VACATE ONE
OF THE PRIMARY ISSUES WAS
THAT INEFFECTIVE ASIF --
ASSISTANCE OF COUNSEL THAT
COUNSEL DID NOT LITIGATE THE
SUPPRESSION OF A CONFESSION.
HE DID NOT LITIGATE IT AT
ALL.
I HAVE TO DROP A FOOT NOTE
FROM THAT, HE READOPTED
SOMETHING THAT HE HAD DONE
IN ANOTHER CASE.
THIS IS SUCH A COMPLEX CASE
THERE WERE FOUR FELONY TWO
INDICTMENTS AND TWO
INFORMATION!!$$!!!!!!!!!!!!!!!!!!!!
INFORMATIONS, THAT CAME FROM
A THREE-MONTH PERIOD OF
TIME, FOUR -- FOUR SEPARATE
CASES TWO SEEKING THE DEATH
PENALTY.
MR. FRANKIE RECEIVED THE
DEATH PENALTY ON BOTH OF
THEM, HE WAS REPRESENTED BY
THE SAME COURT-APPOINTED
COUNSEL ON ALL FOUR OF THEM.
AS YOU BEGIN TO READ THE
RECORD AND I KNOW THIS COURT
HAS VISITED THIS GROUP OF
CASES MANY TIMES, AS YOU
BEGIN TO READ THE RECORD YOU
BEGIN TO SEE THAT WHAT'S
HAPPENING IS BOTH THE SAME
TRIAL JUDGE IN ALL FOUR
CASES AND THE SAME DEFENSE
LAWYER AND THE SAME BASIC
TEAM OF PROSECUTORS,
ALTHOUGH PERHAPS WOULD YOU
FAIRLY DISTINGUISH BETWEEN
TWO DIFFERENT TEAMS BUT FROM
THE SAME OFFICE AND PERHAPS
THE SAME DIVISION, ALL
STARTED IN SHORTHAND TO
TREAT THIS MATTER AS ONE BIG
CASE.
HOWEVER!!$$!!!!!!!!!!!!
HOWEVER, TWO DEATH PENALTY$$!!!!IES
WERE SOUGHT AND TWO WERE
OBTAINED!!$$!!!!!!!!!!!!!!
OBTAINED.
>> YOU ARE SPEAK -- OF
HIALEAH CASE THIS BANK
ROBBERY!!$$!!!!!!!!!!!!
ROBBERY.
>> IM SHOULD SIR, JUDGE SO
ARE ED ONNO SAT ON ALL FOUR
CASES ONE OF THE CONTENTIONS
WE BROUGHT UP A PRACTICE CAL
CONSIDERATION PERHAPS THE
ASSIGNMENT RULE IN DADE
COUNTY, CAUSED A GREAT DAILY
OF THE PREJUDICE, THAT
HAPPENED TO MR. FRANKIE.
LET ME GO TO THE SUPPRESSION
HEARING THERE, WAS A
SUPPRESSION HEARING, FIRST
MR. FRANKIE WAS INCARCERATED
WAS TAKEN FROM HIS PLACE OF
INCARCERATION ON A SATURDAY.
AND HE WAS QUESTIONED.
HE WAS QUESTIONED PRIMARILY
BY TWO DIFFERENT DETECTIVES,
WHO WERE BEGINNING LEAST IN
THE QUESTIONING OF THE
ADMINISTERED OF OFFICER
BOWER THE NORTH MIAMI CASE.
IN THE THEY ELICITED FROM
HIM OVER THE COURSE OF 20
HOURS OF INTERROGATION THREE
CONFESSIONS, TWO TO THE
FIRST DEGREE MURDERS, TWHE
WAS LITIGATED THE
SUPPRESSION ISSUE WAS
LITIGATED IT WAS GLAITED AS
ONE LITIGATED AS ONE BIG
DAY, IT WAS ONE BIG DAY
BECAUSE IT HAD BEEN
STRUCTURED AS ONE BIG DAY.
WHETHER SOMEONE THIS DADE
COUNTY STATE ATTORNEYSOFFS
WAS SO BRILLIANT THAT THEY
SAW THAT THIS CONFLUENCE WAS
GOING TO HURT MR. FRANKIE,
OR NOT THAT IS EXACTLY WHAT
HAPPENED.
SO MR. FRANKIE'S HEARING ON
SUPPRESSION WAS -- HAD
BEFORE JUDGE SO ARE ON THEO
SORONTO ONLY IN THE CASE IN
HIALEAH!!$$!!!!!!!!!!!!
HIALEAH.
>> ON THAT POINT HOW MANY OF
THE WITNESSES AS FAR AS THE
JAIL HOUSE FOR THE
SUPPRESSION HEARING, YOU ARE
CONTESTING THE FACT THAT YOU
HAD TWO SUPPRESSION HEARINGS
REGARDING THE DIFFERENT
CASES ON THE SAME DAY
BASICALLY!!$$!!!!!!!!!!!!!!!!
BASICALLI; RIGHT?
.
>> NO, SIR I'M SAYING THERE
WAS ONE SUPPRESSION HEARING
THAT WAS UNDER THE CASE
NUMBER FROM THE HIALEAH
CASE, THAT THE JUDGE SITTING
AS WELL AS ONE OF THE
DEFENSE ATTORNEYS MENTIONED
SPECIFICALLY WE ARE NOT
TALKING ABOUT THE BOWER THE
NORTH MIAMI CASE AT ALL.
>> HOW MUCH DID THE WITNESS!!$$!!!!!!!!!!!!
WITNESSES FOR THAT
SUPPRESSION HEARING DIFFER?
>> FROM THE HIALEAH VERSUS
THIS CASE?
>> WELL, MR. FRANKIE WAS
QUESTIONED BY TWO OFFICERS,
SMITH AND CRAWFORD, ON THE
CASE THAT HAD TO DO WITH
OFFICER BOWER AND WAS
QUESTIONED LATER BY HIALEAH
POLICE.
THEY ELICITED THREE SEPARATE
CONFESSIONS.
SO ACTUALLY IT WAS FAIRLY
TRUNCATED IN THAT ONLY SMITH
AND CRAWFORD COULD SPEAK TO
WHAT OCCURRED WHAT YOU
OFFICER BOWER TO SOME EXTENT
ONE OF THE HIALEAH OFFICERS.
BUT THE COURT MADE THE
ABSOLUTE DISTINCTION THAT IT
WAS NOT DEALING WITH THE
BOWER CASE.
NOW, WHY DOES THIS BECOME
IMPORTANT IF THERE WERE NO
NEW INFORMATION NO NEW
EVIDENCE!!$$!!!!!!!!!!!!!!
EVIDENCE, IT PROBABLY WOULD
PASS MUSTER, HOWEVER, PRIOR
TO THE HIALEAH SUPPRESSION
HEARING MR. -- MR. FRANKIE'S
COUNSEL SOUGHT TO HAVE HIM
EVALUATED BY DR. TOO MANY --
TOOMER HE WAS THEN EVALUATED!!$$!!!!!!!!!!!!!!!!
EVALUATED, NO REPORT WAS
WRITTEN UNTIL AFTER THE
HIALEAH SUPPRESSION HEARING.
HOWEVER!!$$!!!!!!!!!!!!
HOWEVER, IT WAS WRITTEN A
YEAR BEFORE THEY BEGAN THE
TRIAL IN THIS CASE.
THIS IS ONLY IMPORTANT
BECAUSE OF THE FINDINGS OF
DR. TOOMER, AND THEY WERE
INCREDIBLY IMPORTANT ON THE
ISSUE OF VOLUNTARY$$!!INESS, HE
SAID THAT THIS MAN WAS
BASICALLY MENTALLY ILL THAT
HE WAS PARANOID, HE WAS
SCHIZOID PARANOID VARIETY.
HE WAS LABLED, HE COULD BE
EASILY LED.
HE HAD AN IQ OF 60.
>> SO ARE YOU ALLEGING THEN
THAT THE MOTION TO SUPPRESS
SHOULD HAVE NOT FOCUSED ON
WHEN OR NOT -- WHETHER OR
NOT MR. FRANKIE HAD BEEN
COERCED INTO CONFESSIONING,
BUT THAT THE MOTION TO
SUPPRESS IN THIS CASE SHOULD
HAVE BEEN FOCUSED ON WHETHER
OR NOT HE JOINTLY AND
VOLUNTARILY GAVE THE
CONFESSION BECAUSE OF HIS
MENTAL STATUS
>> I'M SAYING AT THAT POINT
SHOULD OF COURSE BEEN ADDED.
ONE OF THE PROBLEMS WITH THE
SENTENCE WITH THE ORDER FROM
THE LOWER COURT IS THEY SAY
THAT MR. FRANKIE WAS QUOTE
MARRIED TO HIS PRIOR
TESTIMONY.
AND HIS TESTIMONY AT THE
HEARING IN FRONT OF JUDGE.
SO I RONTO, IN THE HIALEAH
CASE WAS IT DEALT DEALT WITH
INTIMIDATION!!$$!!!!!!!!!!!!!!!!!!!!!!
INTIMIDATION, AND COION,
COERCION, HOWEVER, COUNSEL
FOR MR. FRANKIE ADMITTED
THAT HE KNEW THAT THE
CONCEPT EXISTED OF MENTAL
HEALTH PROBLEMS INTELLIGENCE
MENTAL ILLNESS IMPACTING ON
THE ABILITY TO WAIVE YOUR
RIGHTS, TO KNOWINGLY
VOLUNTARILY WAIVE YOUR
RIGHTS.
>> IS NOT THAT SORT OF A FAR
STRETCH THOUGH ADMITTING
THAT THERE MIGHT BE SOME
CONSIST LIKE THAT OUT THERE
AND -- CONSIST OUT THERE AND
HAVING A CLIENT AT A TELL US
HIM YEAH, I CONFESSED, THEY
BEAT IT OUT OF ME, AND THEN
HE FILES A -- HE FILES
SEPARATE MOTIONS TO SUPPRESS!!$$!!!!!!!!!!!!!!
SUPPRESS, DID HE NOT?
>> YES, SIR.
>> OKAY.
AND THEN, THERE WAS A
HEARING, IN THE ONE CASE,
AND COUNSEL JUST STIPULATED
JUNG, YOU HEARD THAT
TESTIMONY, AND I WILL
STIPULATE THAT YOU CAN
CONSIDER THAT SAME EVIDENCE
OR TESTIMONY.
>> YES, SIR.
>> AND I WILL -- HAVING SOME
DIFFICULTY HE DIDN'T HAVE
THE $$DOCTOR'S REPORT, WHEN HE
FILED THE MOTION TO SUPPRESS!!$$!!!!!!!!!!!!!!
SUPPRESS;; IS THAT CORRECT?
>> HE DID NOT HAVE IT.
>> SO -- TELL ME HOW HE ACT!!$$!!!!
ACTED LESS THAN COMPETENT
COUNSEL IN NOT DEVELOPING
THIS THEORY WHEN HE FILED
HIS MOTION TO SUPPRESS BASED
ON WHAT HIS CLIENT HAD TOLD
HIM WHAT IS -- WAS THE BASES
THE IMPROPER BASIS OF HOW
THESE STATEMENTS HAD COME
OUT IS IT HAVING SOME
DIFFICULTY -- CONNECTING UP!!$$!!
UP --
>> I UNDERSTAND THIS IS THE
MOST COMPLEX CASES I
UNDERSTAND FACTUALLY,
HOWEVER!!$$!!!!!!!!!!!!
HOWEVER, I WOULD HATE TO SAY
AGREE WITH YOU YOUR HONOR
BECAUSE POSSIBLY -- I WENT
AGREE BUT YOUR.
>> WELL I'M NOT I'M ASKING
YOU TO -- EXPLAIN TO ME.
>> I KNOW SIR.
>> I WOULD HAVE MUCH LESS
DIFFICULTY!!$$!!!!!!!!!!!!!!!!!!
DIFFICULTY -- WHAT'S
HAPPENING HERE IS THAT YOUR
QUESTIONING ME ABOUT WHAT HE
ALLEGED AND WHAT HE HAD IN
HIS HAND AT THE TIME OF THE
HIALEAH HEARING.
WHAT I'M SAYING IS THAT
THERE WAS A -- A EVALUATION
OF MR. FRANKIE THERE WAS A
MOTION FILED FOR SUPPRESSION
IN BOTH CASES WERES -- CASES!!$$!!!!!!!!
CASES, THERE WAS THEN AN
EVIDENTIARY HEARING THEY SO
HE WILL LEE -- BASED SOLELY
ON THE HE COULDERION ISSUES
IN HIALEAH THEN THE WRITTEN
REPORTS WHICH ILLUMINATED
ALL OF THESE MEDICAL SHSZ,
MENTAL HEALTH ISSUES, THEN
IT CAME INTO THE POSSESSION
OF COUNSEL.
AND WHAT I'M ALLEGING IS NOT
HIS FAILURE NOT TO BRING IT
UP IN HIALEAH BECAUSE HE
DIDN'T HAVE IT, AND I'M NOT
REPRESENTING HIM IN A
HIALEAH CASE, WHAT I'M
SAYING IS THAT HE HAD IT IN
HIS HAND FOR A YEAR AND
NEVER AMENDED THE MOTION TO
SUPPRESS IN THIS CASE.
NOR DID HE EVER SEEK TO
SUPPLEMENT IN ANY WAY --
HAVE MORE OF AN EVIDENTIARY
HEARING EVERYBODY -- EACH IF
HE CHOSE TO ACCEPT THE
TESTIMONY BEGIN BY POLICE
OFF SFOOESHS LET ME ASK YOU
THIS DIDN'T THE ATTORNEY --
SAY AT THE EVIDENTIARY
HEARING SOMETHING TO THE
EFFECT THAT HE EVEN AFTER
READING DR. TOOMER$$'S REPORT
THAT HE HAD SOME DIFFICULTY
WITH IT BECAUSE HE DIDN'T
SEE I MEAN HE WAS YOU HAVE
ACKNOWLEDGED HE REPRESENTED
THIS GUY -- IN FOUR
DIFFERENT CASES, AND HE
REALLY DIDN'T SEE THIS SAME
KIND OF MENTAL PROBLEM THAT
DR. TOMMER -- TOOMER TALKED
ABOUT IN HIS RECORD.
>> WELL, HE DID SAY HE DID
USE AS PART OF JUSTIFICATION
THAT HE IS A LAWYER DIDN'T
SEE THIS MAN AS HAVING AP IQ
OF 60 OR HAVING A MAJOR
MENTAL ILLNESS HOWEVER MOST
OF US DO NOT CONSULT WITH
OTHER LAWYERS WHEN WE HAVE
HEALTH OR MENTAL HEALTH
PROBLEMS.
>> IQ OF 60 WAS TLPT SOME
OTHER INFORMATION THAT HE
ACTUALLY ON THE OTHER IQ
SCALE WAS IN 80S SO ARE
SOMETHING.
>> YES, THAT CAME IN AS THE
SECOND AT THE SECOND
SENTENCING, I BELIEVE.
>> YOU KNOW, I GUS THIS
WHOLE THING ABOUT DR. $$
TOOMER'S REPORT IS SOME WRA
TROUBLE TO GO ME, BECAUSE
WHEN YOU LOOK AT WHAT WAS
ACTUALLY FOUND AT BY THE
TRIAL JUDGE, THERE WERE NO
MENTAL -- WAS THERE ANY
MENTAL HALT MITIGATION
ANYTHING FOUND BY THE TRIAL
JUDGE, BASED ON DR. TOOMER$$'S
REPORT OR ANYTHING?
>> DR. TUM -- $$TOOMER'S
REPORT WAS ONLY INTRODUCE
ORDER DR. TOOMER WAS ONLY
INTRODUCED AS A WITNESS IN
HIALEAH ON, THE MENTAL
MITIGATION!!$$!!!!!!!!!!!!!!!!!!
MITIGATION.
AND ON THE MENTAL MITIGATION!!$$!!!!!!!!!!!!!!!!!!
MITIGATION, IN HIALEAH, HE
THE JUDGE SAID I'M NOT GOING
TO GIVE IT MUCH CREDENCE IT
IS NOT YOU KNOW IT IS
SUBJECTIVE HE MISUNDERSTOOD
THERE WERE ACTUALLY TWO
TESTS WHICH WERE
ADMINISTERED OR THREE TESTS
WHICH WERE ADMINISTERED TO
MR. FRANKIE SO IT WASN'T
SUBJECTIVE BUT OBJECTIVE AS
WELL, THAT ERROR IN THE
SUPPRESSION ORDER HAS BEEN
SNOWBALL HAS SNOWE BUILD A
AND SNOWE BUILD A$$.
IN SO THAT SNOWBALLED SO
JUDGE IMUS NOW THE JUDGE
BEFORE WHOM WE HAD THE
HEARING, HAS EVEN ADOPTED
THE FACT THAT JUDGE.
SO I RONTFOUND SUCH AND
SUCH, JUDGE.
SO I RONTWAS WRONG HE FOUND
THESE THINGS NOW THE ERROR
WE HAVE WITH JUDGE IMUS$$!!IN THE
CURRENT ORDER IS THAT HE
ATTEMPTS TO IN SPITE OF THE
FACT THAT THE LAWYERS SAID I
MISSED IT WILL I JUST NEVER
THOUGHT OF IT.
I KNEW IT WAS CONCEPT IN THE
LAW, I DIDN'T THINK ABOUT
IT.
YES I GOT THE REPORT IN MY
HAND YEAH I READ IT I KNOW
WHAT IT SAID.
HE DID NOTHING WITH IT.
HE DIDN'T AMEND MY MOTION TO
SUPPRESS!!$$!!!!!!!!!!!!!!
SUPPRESS -- DIDN'T ASK FOR
ANOTHER HEARING, I DIDN'T
RAISE IT IN ANY WAY.
>> IS NOT THERE SOME OTHER
TESTIMONY THOUGH THAT THERE
WERE VERY FEW EXPERTS
AVAILABLE ON HIS SUBJECT
WILLING TO -- TO HELP THE --
IN OTHER WORDS, ON THIS --
SOPHISTICATED APPROACH THAT
WELL WHETHER OR NOT A
STATEMENT IS VOLUNTARY OR
INVOLUNTARY!!$$!!!!!!!!!!!!!!!!!!!!
INVOLUNTARY, THAT THE
PERSONALITY TRAITS AND
MENTAL HEALTH HISTORY OF THE
DEFENDANT MIGHT WORK TO END
UP THE THING WOULD BE
INVOLUNTARY IF YOU ACCEPTED
IN OTHER WORDS, THAT THAT
WASN'T SOMETHING THAT
EVERYBODY WAS DOING, IN
TOWN, EVERY TIME THEY HAD A
DEFENSE CLIENT WHO HAD
RENDER!!$$!!!!!!!!!!
RENDERED A CONFESSION THEY
WEREN'T RUNNING OUT, CON
SUPPLEMENT!!$$!!!!!!!!!!!!!!!!!!
SUPPLEMENTING A MENTAL HALT
EXPERT.
IS THAT OH --
>> THERE WERE -- IS THAT
WHAT RECORD SHOWS IT WRARS
THING?
>> THERE ARE TWO ASPECTS,
ONE OF THEM IS WHEN --
WHETHER A MENTAL HEALTH
PROBLEM A LOW IQ LOW
FUNCTIONING!!$$!!!!!!!!!!!!!!!!!!!!
FUNCTIONING, CAN IMPACT ON
THE CONSENT, THE SECOND
ISSUE IS THE ONE TO WHICH
YOU ARE SPEAKING NOW, WHICH
IS NOT THE ONE I WAS SPEAK
TO GO JUST A MOMENT AGO BUT
THAT IS WHETHER CERTAIN
TECHNIQUES CAN BE COERCE$$!!!!IVE
IN THEM.
>> LET ME ASK THE QUESTION
IN A DIFFERENT WAY.
ALL RIGHT?
DID YOU PUT ON EVIDENCE TO
ESTABLISH FOR THIS TRIAL
JUDGE THE POSTCONVICTION
TRIAL JUDGE DID THAT TO THAT
JUDGE'S SATISFACTION THAT
THE MENTAL HEALTH OF THIS
DEFENDANT RENDERED HIS
STATEMENT IN THIS CASE
INVOLUNTARY!!$$!!!!!!!!!!!!!!!!!!!!
INVOLUNTARY?
>> NO THE EXPERTISE THAT WE
PUT ON WAS THAT THE
QUESTIONING THE FORM OF
QUESTIONING IF THE EXPERT
WERE TO TAKE AS TRUE WHAT
MR. FRANKIE SAID ABOUT THE
MANNER IN WHICH HE WAS
QUESTIONED, WAS BEING
QUESTIONED, WAS IN ITSELF
COERCIVE COULD LEAD --
>> WOULD YOUR BURDEN HERE BE
TO PUT ON SOMEBODY, AND
CONVINCE THE TRIAL JUDGE,
JUDGE YOU KNOW, THIS
PARTICULAR DEFT HAS
CONDITION X, AND THE DEFENSE
LAWYER SHOULD HAVE KNOWN IT.
OR HE SHOULD HAVE HIRED AN
EXPERT TO BRING IT OUT, AND
FURTHERMORE!!$$!!!!!!!!!!!!!!!!!!!!
FURTHERMORE, I'M GOING TO
DEMONSTRATE TO YOU THAT
CONDITION X$$!!ABSOLUTELY RENDERS
THE STATEMENT THAT THIS
DEFENDANT GAVE INVOLUNTARY?
NOW, AND YOU CANDIDLY, I
THINK, SAID NO I DIDN'T DO
THAT.
AT THIS HEARING.
>> I DID NOT BRING IN MENTAL
HEALTH EXPERTISE.
HOWEVER!!$$!!!!!!!!!!!!
HOWEVER, I FRAMED THIS
MOTION AS AN INEFFECTIVENESS
IN NOT UTILIZING THE CON
TELL ME TRAINOUS REPORT OF
DR. -- CONTEMPORANEOUS
REPORT.
>> IF YOU ARE GOING TO FAULT
COUNSEL FOR NOT SEEING THIS
AND BRINGING THAT OUT YOU
KNOW, AT THE TIME WHEN THESE
PROCEEDINGS WERE GOING ON,
WHY AT THE VERY LEAST YOU
BEING MUCH MORE AWARE OF ALL
OF THIS, NOW, WHY WOULDN'T
HAVE YOU THE BURDEN TO
ESTABLISH AS A PREDICATE FOR
ANY CLAIM THAT YOU MAKE ON
THIS THAT THAT IN ORDER FOR
US NOT TO HAVE CONFIDENCE IN
THE OUTCOME WHICH IS THE
ULTIMATE -- HERE, THAT WAIT
A MINUTE, IF -- IF THE
LAWYER HAD NOTE HAD DONE
THIS WE WOULD HAVE ENDED UP
WITH A CONFESSION, THAT
WOULD HAVE BEEN SUPPRESSED?
>> WELL, YOUR HONOR, THE ON
IN PRO TURNING NATURE 15
YEARS LATER WOULD BE NOP!!$$!!!!
NOPRTIFRMENT UNC NATURE
WOULD BE DIFFICULT AS WELL
WE RELIED SOLELY ON THE FACT
THAT WE HAD A LAWYER WHO HAD
AN REPORT IN HIS HANDS FROM
A PRUDENTIAL DOCTOR AND
MISSED USING IT.
NOT MADE A CONSIDERED
DECISION NOT TO USE IT.
>> WHAT ELSE BECAUSE TIME IS
RUNNING DOWN YOU ARE IN
REBUTTAL ACTUALLY YOU MAY
WANT TO PAUSE SAVE THAT
TIME.
>> OKAY SIR ISHAL THANK YOU.
>> I JUST WANTED TO I HAD A
QUESTION ARE YOU GOING TO
ARGUE THE SUBPOENA ISSUE?
>> AM I GOING TO ARGUE THE
SUBPOENA ISSUE?
I HAVE TWO MINUTES, 34
SECONDS YOUR HONOR I DO THE
ONLY THING I CAN SAY.
>> I ASKED THAT SEVEN MINTS
AGO.
>> WHAT I CAN SAY ABOUT
SUBPOENA ISSUE I WHAT THEYS
INCREDIBLY IMPORTANT IT IS
THE ABUSE OF A SUBPOENA BY
THE STATE ATTORNEY'S OFFICE
ALLEGE$$!!!!ING THAT THEY STATUTE
REQUIRES THAT THEY HAVE TO
BE INVESTIGATING A CRIME,
THERE ARE WAS NO CRIME
ARTICULATED THERE WERE
HYPOTHETICALS ARTICULATED
THAT WE WERE INVESTIGATING
THE BOWER MURDER, ET CETERA
I THINK THEY VIOLATED THIS I
THINK THEY VIOLATED MY RIGHT
TO DISCOVERY IF THEY ARE
GOING TO HAVE DISCOVERY OF
THIS GENTLEMAN AND --
>> WHAT WOULD REMEDY BE IF
WE AGREED.
>> THAT IS THE PROBLEM YOUR
HONOR AT THIS POINT THE
REMEDY WOULD HAVE TO BE I
SUPPOSE A REMAND FOR A FULL
DEPOSITION WE HAVE HAD THE
TRIAL TESTIMONY.
I UNDERSTAND.
THAT IT MAY BE I HATE TO SAY
IT WOULD BE A WRONG WITHOUT
A REMEDY I THINK IT IS VERY
WRONG AND I THINK IT WAS
OVERUSE ABUSE OF RAW POWER.
THAT DID THIS WITH FOUR
LAWYERS ON ONE SIDE, AND
MR. FRANKIE AND I ON THIS
SIDE AND NOBODY EVEN TELLING
US.
>> MATE PLEASE THE COURT
ASSISTANT ATTORNEY GENERAL
ON BEHALF OF THE STATE FIRST
OF ALL, MR. COHEN WAS NOT
ORIGINALLY APPOINTED COUNSEL
MR. COHEN WAS RETAINED BY
THE FRANKIE FAMILY, TO
REPRESENT HIM IN THE FIRST
-- LAST OF THE FOUR CRIMES
COMMITTED THE FIRST ONE ON
WHICH MR. FRANKIE WAS
ARRESTED, THE REASON THEY
RETAINED MR. COHEN THAT IS
THEY HAD PREVIOUSLY RETAINED
MR. COHEN WHO HAD PREVIOUSLY
REPRESENTED THE DEFENDANT
BEFORE THESE CRIMES EVEN
OCCURRED.
SO HE HAD A LONG HISTORY OF
KNOWING THE DEFENDANT AND
HAD NEVER HAD ANY QUESTION
ABOUT HIS MENTAL PROBLEM.
>> WHAT WAS DR. TOOMER --
>> HE WAS --
>> TO DO.
>> TO VALUE AILT FOR MENTAL
MITIGATION FOR THE HIALEAH
CASE HE CAME BACK WITH THIS
REPORT, THAT COMES IN AFTER
THE HIALEAH SUPPRESSION
CASE, I AT HIALEAH
SUPPRESSION HEARING, THE
REASON THE SUPPRESSION
HEARING TAKES PLACE IN THE
HIALEAH CASE INCLUDES ALL
THREE CASES IS THE FIRST
THREE CRIMES WERE ALL
COMMITTED WITH THE SAME GUNS
IN THE SAME WAY, WE KNOW
THAT THE SAME GROUP OF
PEOPLE HAS BEEN COMMITTING
THESE CRIMES, AFTER THEY
KILL A POLICE OFFICER THEY
DUMP THOSE GUNS IN THE MIAMI
RIVER CHANGE THE MO, COMMIT
THE LAST CRIME -- THEY
ARRESTED DURING THE
COMMISSION OF THE VANESQUE
CRIME FRANKIE AND MARTINE
CONFESS ARE TAKEN TO DADE
COUNTY JAIL.
FERN ANDEES ONE OF THE
CODEFENDANTS PAN THAIKS THEY
ARE IN JAIL GOES TO SEE A
ASSISTANT $$REA PRIEST TO GET
A CHARM SANTA $$REA PRIEST
TURNS HIM IN FOR THE --
REWARD MONEY FOR IT.
AND WHEN WE THEN PICK UP
MR. FERN ANDEES ON FRIDAY
AFTERNOON SPEAK TO HIM
THROUGH THE NIGHT FIND OUT
THAT THE REST OF THE GANG IN
THESE CRIMES ARE THE REST OF
THE GANG IN THESE CRIMES AND
WE PICK THEM UP ON SATURDAY
MORNING MR. FRANKIE, IS
ACTUALLY QUESTIONED BY ABOUT
FIVE DIFFERENT DETECTIVES ON
REGARDING THREE CASES, FIRST
QUESTIONED BY --
>> BUT WILL HAVE IN VEIL LET
ME SEE IF I UNDERSTAND WHAT
YOU ARE SAYING IN THE IS
ALREADY IN JAIL, ON VANESQUE
CASE.
>> VERY LAST CRIME.
>> THE VERY LAST CRIME WE
DIDN'T KNOW WAS CONNECTED,
UNTIL FERN ANDEES, GOES TO
THE BOB LUE TURNS HIM IN WE
PICK UP FERN ANDEES TELL US
US WHO EVERYBODY ELSE IS
HAPPENS FRIDAY NIGHT INTO
SATURDAY MORNING AND THAT
WHO IS WE END UP GOING
ASSEMBLING THE TASK FORCE TO
DOING THE OTHER THREE CRIMES
WHICH WE KNOW ARE CONNECTED,
BECAUSE THE SAME GUNS ARE
USED IN THEM.
AND WE KNOW THAT HE HAS
VOLUNTARILY WAIVEDED HIS
RIGHTS CONFESSED IN THE
VANESQUE CASE WE BRING HIM
DOWN HAVE TO THE POLICE
STATION AS SOON AS WE CAN
AFTER WE GET THIS
INFORMATION HAPPENS TO BE
SATURDAY MORNING, AND WE
BRING HIM IN, AND WE CHAT
WITH HIM.
AND FIRST HE CHATS WITH THE
OFFICERS ABOUT BOWER CASE HE
ORIGINALLY REFUSES TO GIVE
US A RECORDED CONFESSION TO
THE BOWER CASE THOSE
OFFICERS LEAVE HAND HIM OFF
TO OFFICERS ON HIALEAH CASE
HE IS QUESTIONED ABOUT
HIALEAH CASE, HE THEN AGREES
TO GIVE CITIZEN GRAPHICALLY
RECORDED CONFESSION, HE
STENOGRAPHICALLY CONFESSION
HEAD ANDED OFF TO OFFICERS
BEFORE THE STENOGRAPHICALLY
RECORDED CONFESSION TO
INVESTIGATING THE FIRST
CRIME REPUBLIC NATIONAL BANK
ROBBERY THEY QUESTION HIM
AND HE GIVES THE RECORDED
STATEMENT IN REVERSE ORDER.
SO YOU HAVE TO LITIGATE
SUPPRESSION ON ALL OF THESE
TOGETHER, BECAUSE IF THE
BOWER CONFESSION IS
ININVOLVE FREE THE HIALEAH
CONFESSION INVOLVED
IMMEDIATELY, THEN THAT IS
GOING TO BE INVOLUNTARY TOO
THAT IS WHY THERE IS ONE
SUPPRESSION HEARING IN THE
HIALEAH CASE, OR THERE ARE
NO DIFFERENT WITNESSES
BECAUSE THIS IS ALL ONE BIG
SET OF CONFESSIONS, ALL OF
ONE TIME.
AND THAT IS WHY IT TAKES 20
HOURS TO DO IT.
TOO.
>> AS THERE EVER BEEN AN --
BEING A -- CLAIM MADE.
>> NO THE DEFENDANT IQ IS 83
ON -- THAT 60 ON A BETA.
SO, THERE THIS BIG
SUPPRESSION HEARING IN
HIALEAH CASE THEY THEN GO TO
THROUGH TRIAL, THEY PRESENT
DR. TOOMER AND HIS FINDINGS,
AT THE HIGHLY SENTENCING
HEARING, AND DR. TOOMER GETS
KILLED.
JUDGE.
SO I RONTO SAYS EVERYTHING
HE SAYS IS COMPLETELY --
>> BEFORE WE EVER EVEN GET
TO A SUPPRESSION HEARING OR
A TRIAL IN THIS CASE, WE ARE
HAVING HIALEAH -- HEARING
DR. TOOMER IS PRESENTED, AND
JUST KILLED DR. -- JUDGE.
SO I RONTO COMPLETELY
REJECTS HIM AS INCREDIBLE
EVERYTHING HE SAYS IS
CONTRARY TO THE FACTS OF THE
CASE WE THEN SHOW UP, TO DO
A HIGH LEE TO DO THE BOWER
SUPPRESSION HEARING, MENTAL
STATE ONLY RELEVANT IF THERE
IS UNDER COLORADO VERSE
CONNELLY IF POLICE ACTION ON
MENTAL STATE OR IF IT RENDER!!$$!!!!!!!!!!
RENDERED HIM INCOMPETENT WHY
I INCOMPETENT SO HE COULD
NOT UNDERSTAND WAIVE MIRANDA
RIGHTS UNDER CARDENAS VERSUS
MIRANDA COMPETENCY TO STAND
TRIAL THERE HAS NEVER BEEN
AN ISSUE ABOUT MR. FRANK
POSE COMPETENCE TOO STAND
TRIAL COUNSEL SAID I HAVE
NEN HIM SINCE BEFORE THESE
CRIMES WERE EVERY COMMITTED
THERE IS NEVER BEEN AN ISSUE
ABOUT HIS COMPETENCE, THAT
IS WHY HE HAD ISSUES WITH
DR. TOOMER$$'S REPORT.
HE MR. FRANKIE, AT THE
HIALEAH SUPPRESSION HEARING
TESTIFIED BEFORE HE IS EVER
READ HIS RIGHTS --
REPEATEDLY INVOKINGING THEM
THAT POLICE NEVER PROPERLY
READ HIM MIRANDA RIGHTS FORM
ONLY READ HIM THE PORTION
WITH THE RIGHTS, NEVER READ
THE WAIVER PORTION, THAT
THEY BEAT HIM AND COERCED
HIM, THAT WHEN THEY FINISHED
WHEN THEY WOULDN'T LET HIM
GO AFTER THEY DIDN'T READ
HIM THE FULL RIGHTS THAT HE
HE SAID YOU KNOW, WHY ARE
YOU STILL QUESTIONING ME I
HAVE A LAWYER I WANT THEM.
AND DIRECTLY ASKED DO YOU
UNDERSTAND YOUR MIRANDA
RIGHTS DID YOU UNDERSTAND
THEM.
>> YES, I UNDERSTOOD THEM.
WE GET TO THIS EVIDENTIARY
HEARING WHERE THEY SAY
COUPES WAS INEFFECTIVE FOR
FAILING TO LIT GIT
SUPPRESSION ALL OFFICERS
THERE ARE ON IN ARE CALLED,
THEY BRING IN THIS DR. WHO
HE TESTIFIED THAT MR. !!$$!!!!!!
MR. FRANKIE UNDERSTOOD
MIRANDA RIGHTS.
AND THEN HE PROCEEDS TO
TESTIFY THAT IF YOU BELIEVE
MR. FRANKIE THAT HE WAS
BEATEN, NOT READ MIRANDA
RIGHTS, NOT FORCED TO WAIVE
THEM, PROMISED 15-YEAR
SENTENCE HIS CONFESSION IS
COERRED IF YOU BELIEVE THE
DECKIVES THERE IS NOTHING
WRONG WITH THIS CONFESSION,
WELL I THINK A FIVE YEAR OLD
CHILD COULD TELL THAT IF YOU
BEAT SOMEBODY, YOU QUOTE
ACKNOWLEDGE REPEATED
INVOCATION OF RIGHTS WON'T
READ THEM RIGHTS THAT THEIR
CONFESSION IS COERRED,SO THE
STATE'S POSITION IS THERE
WAS A COMPLETE FAILURE OF
PROOF AND WITH REGARD TO
THIS SUBPOENA ISSUE, THE
STATE NOT ONLY HAS A DUTY TO
INVESTIGATE TO SEE THAT WE
CAN PROSECUTE SOMEONE, BUT
WE HAVE A DUTY TO MAKE SURE
THAT WE HAVE DONE JUST --
JOEFZ JUSTICE, THAT INCLUDES
MAKING SURE THAT WE HAVE
GIVEN THE DEFENDANT A FAIR
TRIAL, AND THE CRIMES WE
WERE INVESTIGATING IN THIS
CASE WERE THE MURDER OF
OFFICER BOWER, THE --
>> IF THE STATE IS GOING TO
EXERCISE WHATEVER RIGHTS IT
HAS TO QUESTION THE DEFENSE
LAWYER HIS CONDUCT IS BEING
CHALLENGED IN A
POSTCONVICTION PROCEEDING,
DOESN'T THE STATE HAVE AN
OBLIGATION TO DO IT IN THE
POSTCONVICTION PROCEEDINGS?
WITH NOTICE, TO THE
POSTCONVICTION LAWYERS WITH
NOTICE TO THE JUDGE
PRESIDING OVER THOSE
POSTCONVICTION CLAIMS, ALL
IN THE LIGHT OF DAY, AND NOT
DO IT IN A SEPARATE WAY AS
FAR AS USING THIS SUBPOENA
POWER THAT IT HAS?
I HAVE A LOT OF THE
DIFFICULTY!!$$!!!!!!!!!!!!!!!!!!
DIFFICULTY, WITH SORT OF
DOING AN END RUN AROUND
THE --
>> THERE ARE NO --
>> LET MIM FINISH HIS
QUESTION.
>> SO HELP ME -- WITH THAT,
I REALIZE THAT COUPES RAISED
A -- COUNSEL RACE AND ISSUE
ESSENTIALLY HEARS I KNOW --
BUT -- YOU THINK THE STATE
IN ANY POSTCONVICTION
PROCEEDING CAN USE IT'S
SUBPOENA POWER TO DO
DISCOVERY, AND ALL OF THAT
AND POSTCONVICTION CASE
WITHOUT ANY NOTICE, TO THE
DEFENSE LAWYER, PROSECUTING
THE POSTCONVICTION CASE OR
ANY NOTICE TO THE JUDGE IN
THE POSTCONVICTION CASE?
IS THAT THE STATE'SINGS TO.
>> THE $$STATE'S POSITION IS
NORMALLY WE JUST.
>> JUST ANSWER.
>> MY QUESTION.
>> AND THE STATE.
>> --
>> IS THAT IT CAN USE IT'S
SUBPOENA POWER IN A
POSTCONVICTION CASE.
>> SO THE STATE HAS NO
OBLIGATION TO INFORM THE
TRIAL COURT PRESIDING OVER
THE POSTCONVICTION
PROCEEDINGS OR TO INFORM THE
LAWYER THAT IS PROSECUTING
THE POSTCONVICTION CLAIM?
>> NO.
THE STATE CAN INVESTIGATE
THE POSTCONVICTION MOTION AS
-- IF THE $$STATE'S POSITION.
>> HE DOESN'T THE STATUTE --
DESIGNED TO ALLOW THE STATE
ATTORNEY TO INVESTIGATE A
VIOLATION OF LAW,AND IN THIS
CASE, IT IS ALREADY
INVESTIGATED!!$$!!!!!!!!!!!!!!!!!!!!!!
INVESTIGATED, AND PROSECUTED
AND RECEIVED CONVICTION AND
A SENTENCE, AND CAN YOU
HONESTLY SAY THAT THEY WERE
STILL INVESTIGATING THE
CRIMES INVOLVED IN THE COX
CASE?
>> YES, BECAUSE WE A DUTY
NOT ONLY TO SEE THAT WE'VE
GOTTEN EVIDENCE AND
PROSECUTED THE DEFENDANT BUT
TO MAKE SURE WE PROSECUTED
THE RIGHT DEFT AND THAT WE
HAVE GIVE HIM HIS RIGHT TO A
FAIR TRIAL.
>> SO IF WE ACCEPT THAT
ARGUMENT, THEN THE STATE
ATTORNEY CAN SUBPOENA IN ANY
CASE, PRECONVICTION,
POSTCONVICTION CAN SUBPOENA
ANY WITNESS AND INTERVIEW
ESSENTIALLY -- REQUIRE THAT
WITNESS TO BE INTERVIEWED
WITHOUT GOING THROUGH THE
DISCOVERY PROCESS WITHOUT
INFORM!!$$!!!!!!!!!!
INFORMING A -- OPPOSING
COUNSEL WITHOUT EVEN PUTTING
HIM UNDER OATH.
>> NOT PRECONVICTION BECAUSE
DISCOVERY RULES THERE ARE NO
DISCOVERY RULES
POSTCONVICTION, YOU SAID THE
DISCOVERY RULES DON'T APPLY.
>> BUT YOU SAID THAT -- YOU
ARE STILL INVESTIGATING A
CRIME.
SO WHY WOULDN'T A STATE
ATTORNEY SAY HEY, EVEN
THOUGH WE ARE PROSECUTING
THEM WE ARE STILL
INVESTIGATING A CRIME HERE
SO WE CAN USE SUBPOENA O
POWER.
>> YOU CAN'T USE SUBPOENA
POWER TO WHERE IT CONFLICTS
WITH RULES OF DISCOVERY
THERE ARE NO RULES OF
DISCOVERY FOR POSTCONVICTION
SO IT CAN'T CONFLICT WITH
THEM.
>> WHAT ABOUT THE RIGHT OF
CONFIDENTIAL!!$$!!!!!!!!!!!!!!!!!!!!!!
CONFIDENTIALITY, BETWEEN A
LAWYER AND HIS CLIENT?
SINCE WHEN DOES THE STATE
HAVE RIGHT TO SUBPOENA A
LAWYER AND FORCE THE LAWYER
TO BREAK THAT CONFIDENTIAL!!$$!!!!!!!!!!!!!!!!!!!!!!
CONFIDENTIALITY ESPECIALLY
FOR INSTANCE IN A SITUATION
WHERE THEY FILE A
POSTCONVICTION MOTION, AND
IT IS BASED ON THINGS THE
STATE DID OR SOMETHING --
YOU KNOW THERE IS NO CLAIM
IT IN HYPOTHETICALLY OKAY,
SO TELL ME HOW THE STATE
GETS THE RIGHT TO VIOLATE
THIS CONSTITUTIONAL RIGHT OF
CONFIDENTIAL!!$$!!!!!!!!!!!!!!!!!!!!!!
CONFIDENTIALITY?
>> I DON'T BELIEVE IT IS A
CONSTITUTIONAL RIGHT I
BELIEVE IT IS A STATUTORY
PRIVILEGE!!$$!!!!!!!!!!!!!!!!
PRIVILEGE.
ATTORNEY-CLIENT PRIVILEGE.
HOWEVER, WE WOULD NOT BE
VIOLATING THE
ATTORNEY-CLIENT PRIVILEGE IF
THERE WERE NO CLAIMS RIDER!!$$!!!!!!!!
RIDERING $$COUPES'S CONDUCT WE
COULDN'T SUBPOENA COUNSEL
IN, WHEN YOU -- RAISE A
CLAIM.
>> ALL RELATES, THEN TO THE
POSTCONVICTION PROCEEDING
THIS IS A STATE ATTORNEY,
EXAMINING THE MOTION FOR
POSTCONVICTION PROCEEDING,
AND MAKING A DETERMINATION,
BASED ON WHAT THE CLAIMS ARE
THERE, WHETHER THEY ARE
GOING TO IS THIS A PREVALENT
PRACTICE IN DADE COUNTY.
>> THE PREVALENT PRACTICE IN
DADE COUNTY -- COUNTY,
DEFENSE ATTORNEYS SHOW UP
AND TALK WHEN YOU RAISE
INFECT!!$$!!!!!!!!!!
INFECTIVE.
>> IS IT PREVALENT PRACTICE
TO SUE OPEN AUNDER
INVESTIGATIVE AUTHORITY OF
THE STATE ATTORNEY.
>> NO --
>> IN OTHER WORDS IS THIS
SOMETHING THISCOURT SHOULD
BE CONCERNED ABOUT THAT IS
GOING ON NOW EVERY DAY, IN
DADE COUNTY.
>> NO BECAUSE MOST DEFENSE
ATTORNEYS WHEN DEFENDANT
RAISES CLAIM OF INEFFECTIVE
ASSISTANCE OF COUNSEL, HE
WAIVES HIS ATTORNEY-CLIENT
PRIVILEGE WITH REGARD TO ANY
MATTERS RELEVANT TO THAT
CLAIM OF INTEREFFECTIVE
ASSISTANCE OF COUNSEL MOST
DEFENSE ATTORNEYS UNDERSTAND
THEIR ETHICS ARE BEING
CHALLENGED FREELY
VOLUNTARILY WALKED IN SIT
DOWN AND CHAT WITH THE STATE
ATTORNEY, OWNED UNDERSTAND!!$$!!!!!!!!!!!!!!!!!!
UNDERSTANDING THAT THE
ATTORNEY CLIENT PRIVILEGE
HAS BEEN WAIVED, AND IF WE
TAKE THIS OUTSIDE OF THE
SITUATION WHERE WE ARE
TALKING ABOUT AN INEFFECTIVE
ASSISTANCE CLAIM, THE STATE
RECEIVES INFORMATION THAT
MAYBE WE GOT THE WRONG
PERSON, AND WE HAVE SOME NEW
EVIDENCE THAT COMES TO LIGHT
TO US, THAT THIS OTHER
PERSON COMMITTED THE CRIME,
THIS OTHER PERSON MAY FLEE
IF WE LET THEM KNOW MAY FLEE
IF WE LET DEFENSE COUNSEL
KNOW THAT IS WHY WE HAVE SUE
PIENAAR POWER TO BE ABLE TO
DO THESE INVESTIGATION GAIGS!!$$!!!!!!!!
GAIGSS.
>> YOU ARE SAYING SOMEBODY
MAY HAVE FLED.
>> -- WHAT I'M SAYING.
>> YOU WERE SUBPOENAING THE
LAWYER FOR THE DEFENDANT.
>> I'M SAYING THAT YOU HAVE
TO LOOK AT THE SUBPOENA
POWER AND IT IS BROAD.
>> I'M LOOKING AT IT IN ON
THAT CONTEXT WHAT IS CLAIMED
IN THIS CASE AND THAT IS
THAT THE LAWYER FOR THE
DEFENDANT HE WITHOUT
RECEIVING A WAIVER OF
CONFIDENTIAL!!$$!!!!!!!!!!!!!!!!!!!!!!
CONFIDENTIALITY, OR HAVING
ANY DETERMINATION MADE BY A
COURT OF LAW THAT THERE HAS
BEEN A WAIVER THAT THE STATE
ATTORNEY EXERCISES IT'S
SUBPOENA POWER, TO HAVE THAT
ATTORNEY COME, IN AND
EXERCISE THAT WAIVER.
>> AND THIS CASE, THERE WAS
A DETERMINATION, AND THERE
IS A WAIVER AS MATTER OF LAW!!$$!!!!
LAW, WHEN YOU FILE THAT
INEFFECTIVENESS CLAIM YOU
HAVE THAT IN READY --
>> DETERMINATION --
>> EXCUSE ME.
>> THIS CASE THERE WAS
DETERMINATION!!$$!!!!!!!!!!!!!!!!!!!!!!!!
DETERMINATION.
>> IN THIS CASE, THE --
>> WHAT -- I'M ASKING YOU
ABOUT THE DETERMINATION YOU
SAID IN THIS CASE THERE, WAS
A DETERMINATION.
WHEN WAS THAT DETERMINATION
MADE?
>> THE TRIAL DEFENSE
ATTORNEY MOVED TO QUASH THE
SUBPOENA BEFORE WE EVER
SPOKE TO HIM HE SET THE
MOTION FOR HEARING, HE
BROUGHT IT UP IN FRONT OF
THE TRIAL COURT HE SAID
THERE IS ATTORNEY-CLIENT
PRIVILEGE WE SAID LOOK WHEN
YOU RAISE AN ISC CLAIM YOU
WAIVE IT MATTERS OF LAW LOOK
AT OUR -- LOOK AT READ AND
THE TRIAL COURT SAID YES.
>> -- COUNSEL -- NOTICE --
MAY HAVE?
>> TRIAL COUNSEL DIDN'T
NOTICE HIM TRIAL COUNSEL IS
THE ONE FILED THE MOTION
TRIAL COUNSEL US THE HE ONE
WHO SET IT FOR HEARING WE
ASULD THAT THEY HAD --
>> WAS POSTCONVICTION
COUNSEL -- YOU UNDERSTAND
THE DIFFERENCE BETWEEN POST
CONVICTION COUNSEL, AND
TRIAL COUNSEL?
>> YES YOUR HONOR WE --
>> POSTCONVICTION COUNSEL --
WAIT FOR MY QUESTION.
WAS POSTCONVICTION COUNSEL
PUT ON NOTICE OF THIS
HEARING?
>> WE ASSUMED.
>> THAT REQUIRES A YES OR A
NO ANSWER.
>> MY ANSWER IS I DON'T
KNOW.
TEA.
>> THE RECORD HERE DOESN'T
SHOW.
>> THE NOTICE --
>> THE NOTICE THAT WAS FILED
FOR THE HEARING WAS FILED BY
THE TRIAL COUNSEL WHO FILED
THE MOTION TO QUASH, IT
DOESN'T SHOW SERVICE ON
THEM.
THE STATE ASSUMED THAT THE
DEFENSE THE TRIAL DEFENSE
ATTORNEY WHO WAS SPEAKING
PRIVATELY BY THE WAY TO
POSTCONVICTION DEFENSE
COUNSEL, WHILE SHE SAYS SHE
WANTS EQUAL DISCOVERY SHE
HAD THE OPPORTUNITY TO SPEAK
TO HIM PRIVATELY.
THAT IS ALL WE WERE TRYING
TO GET.
WAS AN EQUAL OPPORTUNITY TO
SPEAK TO HIM PRIVATELY.
HE WAS WILLING TO TALK TO
HER HE WASN'T WILLING TO
TALK TO US.
SHE DIDN'T HAVE TO DEPOSE
HIM.
AND THE POINT WAYS WERE
MAKING PHYSICIAN OF YOU A
CLAIM BASED ON NEWLY
DISCOVERED EVIDENCE WHERE
THE STATE RECEIVES
INFORMATION, THAT PERHAPS
SOMEBODY ELSE HAS COMMITTED
THE CRIME, THE STATE NEEDS
TO BE ABLE TO HAVE SOME WAY
OF INVESTIGATING THAT
WITHOUT TIPPING OFF THE
WORLD TIPPING OFF THIS
PERSON, BECAUSE WE NEED TO
MIKE SURE JUSTICE IS DONE,
AND IF WE'VE GOT THE WRONG
PERSON WE NEED TO BE ABLE TO
INVESTIGATE FWAIT THAT TO
MAKE SURE JUSTICE IS DONE.
>> THAT MAY BE TRUE, AND
MANY CASES, BUT MY CONCERN
IS IN THIS CASE, YOU WEREN'T
SUBPOENAING A WITNESS WHO
SAID I SAW THE CRIME AND HE
DIDN'T DO IT.
SOMEBODY ELSE DID IT.
OR SOMEBODY WHO WAS
RECANTING TESTIMONY.
THE APPARENT PURPOSE OF THE
SUBPOENA WAS TO DETERMINE
WHAT THE DEFENSE COUNSEL WAS
GOING TO TESTIFY ABOUT AT
THE POSTCONVICTION HEARING
WHICH HAS NOTHING TO DO WHEN
-- WHETHER THIS DEFENDANT
COMMITTED THE CRIME OR NOT.
>> IT WOULD HAVE TO DO WHEN
OR -- WHETHER OR NOT THE
STATE HAD DONE JUSTICE IF WE
HAD BEGIN HIM AN UNFAIR
TRIAL.
AND THIS DEFENSE ATTORNEY HE
CHOSE TO WANT TO SUBPOENA HE
--
>> LET ME CLARIFY THAT FROM
MY EXPERIENCE, ANDING HELP
ME CLARIFY, IT IS THE CUSTOM
AND PRACTICE ON THIS THAT
WHEN THE INEFFECTIVE
ASSISTANCE COUNSEL CLAIM IS
FILED, BECAUSE IT WAIVES
COULD HAVE DENTIALITY THOSE
ISSUES THAT COUNSEL IS FREE
TO TALK TO BOTH THE DEFENSE
COUNSEL AND POSTCONVICTION,
AND IS FREE TO TALK TO THE
STATE ATTORNEY'S OFFICE THAT
IS WHAT IS DONE IN DAY IN
DAY OUT ALL THE TIME.
>> DAY IN DAY OUT THE
DEFENSE ATTORNEYS SIM MROOEP
SHOW UP ON THEIR OWN WITHOUT
ANY NEED OR IN SUBPOENA --
WHAT THESOEVER STATE
ATTORNEY SAYS HEY I WOULD
LIKE TO CHAT WITH YOU THE
GUY SAYS SURE COME ON DOWN,
I WILL COME ON DOWN TO YOUR
OFFICE AT X-TIME WE WILL
CHAT THAT IS WHAT USUALLY
HAPPENS THE ONLY REASON IT
DIDN'T IN THIS CASE IS THE
DEFENSE ATTORNEY SAID I WANT
A SUBPOENA.
>> I GUESS THE BROADER
QUESTION IS SFERNL THERE ARE
OTHER WITNESSES COME UP
DURING THE PROCEED THAT IS A
STANDARD PRACTICE IF OF YOU
WITNESSES THAT WON'T
VOLUNTARILY APPEAR, THAT YOU
DO USE THE SUBPOENA POWER 20
CALL THOSE WITNESSES IN, AND
DOES THE OPPOSITION NOT
RECEIVE NOTICE OF THAT I
GUESS THAT IS REALLY THE
BROADER THAT IS -- THIS
HAPPENS TO BE LAUER IN THIS
CASE HOW ABOUT OTHER WITNESS!!$$!!!!!!!!!!!!
WITNESSES IS THAT A PROBLEM
NOT A PROBLEM.
>> LIKE I SAID IF WE HAD A
WITNESS WE THOUGHT THERE WAS
NEWLY DISCOVERED EVIDENCE IT
WOULD BE A HUGE PROBLEM IF
WE COULDN'T SPEAK TO THAT
PERSON PRIVATELY BEFORE WE
FOUND OUT IF IT REALLY WAS
WE CONVICTED THE WRONG
PERSON, AND WE ARE NOW
TIPPING OFF THE RIGHT PERSON
AND THEY ARE GONE.
THAT WOULD BE A HUGE
PROBLEM, WE THIS IS THE ONLY
CASE I KNOW WHERE THERE HAS
BEEN A NEED TO USE A
SUBPOENA AT ALL.
>> THE STATUTE SEAMS TO TALK
IN TERMS OF SUBPOENAING
SOMEBODY TO 2E69 -- TESTIFY
BEFORE THE STATE ATTORNEY
WHICH TO ME, IMPLIES
TESTIMONY UNDER OATH.
RECORDED STATEMENTS,
SOMETHING LIKE THAT.
AND YOUR -- ARGUING THAT IT
ALSO AUTHORIZES INFORMAL
INTERVIEW OF A FORCED
INFORMAL INTERVIEW.
>> IF HE HAS -- PERHAPS IT
WOULD HAVE BEEN BETTER IF
PROSECUTOR PUT HIM UNDER
OETHTH TAKEN A SWORN -- HE
DIDN'T, FEEL THE NEED TO DO
THAT.
BUT --
>> YOU SAID THERE IS NO
DISCOVERY RULES IN
POSTCONVICTION!!$$!!!!!!!!!!!!!!!!!!!!!!!!!!
POSTCONVICTION, BUT
DEPOSITIONS ARE AREN'T THEY
TAKEN ALL THE SOMETIME.
>>.
>> LEWIS VERSUS STATE WHERE
YOU AUTHORIZED TAKES TAKING
OF DEPOSITIONS YOU EXPRESSLY
SAID DISCOVERY RULES DONTS
APPLY AND WE DON'T MEAN THIL
I TO IMPLY THEY DO.
>> WOULDN'T BETTER PRACTICE
BE TO NOTICE DEPOSITION
SUBPOENAED HIM TO THE
DEPOSITION!!$$!!!!!!!!!!!!!!!!!!
DEPOSITION?
>> AGAIN, IN A SITUATION
WITH ATTORNEY PERHAPS BUT IN
A SITUATION WHERE OF YOU --
SNOOUF THAT IS WHAT WE ARE
TALKING ABOUT NOT GENERAL
USE OF THE.
>> WELL, THAT --
>> GENERALLY YOU CAN NOT DO
-- SUBPOENAS AT ALL IN
POSTCONVICTION THE $$STATE'S
POINT IS THERE ARE VALID
USES OF SUPBOENAS IN
POSTCONVICTION.
AND IF WOOF THE POWER TO USE
THEM WE HAVE THE POWER TO
USE THEM.
>> THE COURT HAS NO FURTHER
QUESTIONS STATE RESPECTFULLY
REQUESTS TO AFFIRM.
>> THANK YOU.
>> -- OKAY.
>> THE STATE IN THIS CASE
SET FOR DEPOSITION TWO OF
THE WITNESSES THAT I PRESENT!!$$!!!!!!!!!!!!
PRESENTED.
THE ONLY ONE THEY HID FROM
VIEW WAS MR. --
>> YOU TALKED TO HAVE YOU
TALKED TO MR. COHEN.
>> I TALK BRIEFLY TO MR. MY
EXPERT WITNESS, MR. BLACK
HAD SPOKEN WITH HIM.
>> BRIEF YOU TALKED TO
MR. COHEN IT WASN'T LIKE
MR. COHEN WASN'T ACCESSIBLE
UP.
>> HE WAS ACCESSIBLE, WE
DIDN'T SPEAK TO HIM TOO MUCH
BUT HE WAS ACCESS --
ACCESSIBLE.
IF HE CHOSE NOT TO SPEAK TO
THE STATE ATTORNEY I WOULD
SUGGEST FLAPS HAD SOMETHING
DO WITH PERSONALITY OF THE
PARTICULAR PERSON WHO ASKED
HIM, AND STILL WHY DIDN'T
THEY SERVE HIM WITH A
SUBPOENA.
FOR DEPOSITION.
AND WHEN THE STATE SAYS THAT
THE DEFENDANT ARGUED THAT
THERE IS NO USE OF SUBPOENAS
IN POSTCONVICTION, THAT
WASN'T ME.
THAT WAS THE TRIAL LAWYER.
WAS MAKING THOSE ARGUMENTS.
I WAS NOT THERE.
FRANKIE WAS NOT THERE.
ONE THING THAT HAS NOT COME
UP THAT IS THE PARAMETERS OF
THE ATTORNEY-CLIENT
PRIVILEGE CAN ONLY BE
PROTECTED BY SOMEONE WHO IS
REPRESENTING MR. FRANKIE.
>> BUT YOU AGREE ALL THE
TIME THAT I MEAN THAT THE
STATE COULD HAVE TALKED TO
HIM, VOLUNTARILY ONCE YOU
FILED YOUR MOTION, THE
ATTORNEY-CLIENT PRIVILEGE
WAS WAIVED.
>> THE ATTORNEY-CLIENT
PRIVILEGE WAS WAIVED ONLY AS
TO THOSE ISSUES WHICH WERE
RAISED IN THE MOTION TO
VACATE.
IT IS NOT THAT THEY WERE
RAISED EVERYTHING TO IF
PAINS IN COME IN CONFESSED
TO HAVING KILLED KENNEDY I
DON'T THINK THAT COULD HAVE
BEEN DISCLOSED IN A CHAT
WITH MR. LASER.
I JUST -- IT IS THE
PARAMETERS OF IT HAVE A --
HAVE TO BE DEFENDED OF THE
ATTORNEY-CLIENT PRIVILEGE
AND THE BREADTH OF IT'S
WAIVER AND IT WAS NOT DEFEND!!$$!!!!!!!!!!
DEFENDED BECAUSE I WASN'T
THERE --
>> WE HAVE USED UP ALL OF
YOUR TIME DO YOU HAVE A
QUESTION.
>> YOU DO AGREE HOWEVER THAT
THE USUAL PRACTICE IS THAT
THE ATTORNEY JUST AGREES AND
THE STATE ATTORNEY WILL
EITHER GO TO WHO I WAS OR HE
WILL GO TO THE STATE
ATTORNEY'S OFFICE, AND WHEN
THESE THREE -- 3.850 MOTIONS
ARE FILED?
>> WHAT I HAVE NORMALLY SEEN
AND I DON'T HAVE A DEPTH OF
KNOWLEDGE OF THEIR PRACTICES
IN DADE COUNTY, BUT IN OTHER
PLACES I'VE SEEN THEM SET
FOR DEPOSITION, I HAVE NO
IDEA HOW COMMON IT IS AND --
>> POSTCONVICTION?
>> YES.
>> TALKING ABOUT POST
CONVICT --
>> YES, I BROUGHT MY EXPERT
IN TWO EXPERTS FOR
DEPOSITION IN THIS CASE.
BY THE STATE THE SAME STATE.
>> THANK YOU VERY MUCH.
>> THANK YOU VERY MUCH WE'LL
TAKE THE CASE UNDER A ADVISEMENT STAND IN RECESS
UNTIL 8:30 TOMORROW MORNING,
THANK YOU.
PLEASE RISE