MARSHAL: PLEASE RISE . HEAR YE.HEAR YE.HEAR YE. THE SUPREME COURT OF THEGREAT STATE OF FLORIDA IS NOW IN SESSION. GOD SA VE T HESE UNITED STATES, THE GREAT STATE OF FLORIDA AND THIS HONORABLE COUR T. ALL WHO HAVE CAUSE TO PLEA , DRAW NEAR , G IVE ATTENT ION AND YOU SHALL BE HEARD. LADIES AND GENTLEMEN, THE FLORIDA SUPREME COURT.PLEASE BE SEATE D.
CHIEF JUSTIC E: GOOD MORNING, LADIES AND GENTLEMEN, AND WELC OME TO THE FLORIDA SUPREME COURT. THE FI RST CASE ON TODAY'S DOCKET IS SCHOENWETTER VERSUS STATE OF FLORIDA. PARTIES ARE READY ? OKAY.
MAY IT PLE ASE THE COURT. GOOD MORNING. I AM CHRIS QUAR LES , AND I REPRESENT RANDY SCHOENWETTER FROM HIS T WO CONSECUTIVE SENTENCES OF D EATH AND TWO CONSECUTIVE LIFE SENT ENCES OUT OF BREVARD COU NTY A FTER HE PL EADED GUILTY TO TWO COUNTS OF FIRST-DE GREE MURDER, ONE CO UNT OF ATTEMPTED MURDER AND ONE COUNT OF AR MED BURGLA RY OF A DWELLING. DURING THE BURGLARY OF HIS BEST FRIEND'S HOUSE , MR . SCHOENWETTER KILLED VIRGINIA FRISK K EY , THE -- FRISKEY, THE TEN-YEAR-OLD C ENTER , AND HE AL MOST K ILLED THE MO THER , AND HE KILL ED THE FAT HER.
YOU HAVE ISSUES IN THI S CASE. WHICH ONE DO YOU PLAN TO FOCUS YOUR ATTENTION ON TODAY?
I THOUGHT I WOULD START WITH ONE. IF THE COURT HA S A PREFERENCE TO HEAR AB OUT SOMETHING ELSE, LET ME KNO W. INITIALLY THE CONFESSION ISSUE , I WOULD LIKE TO ADDRESS THAT THE TRIAL COURT CLEARLY CONCLUDED ERRONEOUSLY THAT THAT ISSUE WAS WAIVED BECAUSE MR . SCHOENWETTER PLEADED GUILTY. AS THIS COURT HE LD IN ROLLING, THAT IS NOT THE CASE WHEN AN UNCONSTITUTIONALLY -OBTA INED CONFESSION IS USED TO ESTABLISH AGGRAVAT ORS AT THE PENALTY PHASE, IT IS SUBJECT TO REVIEW, S O THAT ISSU E HAS BEEN PRESERVED . THE FACTS ON THE CONF ESSION ISSUE, THE F OCUS IS WHETHER OR NOT HE WAS IN CUS TODY AT THE TIME THAT HE DAVE HIS STATEMENT.THERE WAS -- THAT HE GAVE HIS STATE MENT. THERE WAS A B LOOD TR AIL ON THE TRAIL BETWEEN THE HOUSE AND WHERE MR . SCHOENWETTER LIVED. IT APPEARED L EFT BY SOMEBODY RIDING A BICY CLE .
WHAT W OULD LEAD YOU TO BELIEVE THAT HE WAS IN CUSTODY, BEC AUSE I UNDERSTOOD IT HE VOLUNTAR ILY WENT TO THE POLICE STATION WITH THE OFFICERS.HE WAS NOT HANDCUFFED D URING THE RIDE TO THE POLICE STATION.THEY NEVER INDICATED THAT HE WAS U NDER AR REST. HE INDICATED THAT HE HAD TO GET BACK AT A CERTAIN TI ME, SO THAT WOULD LEAD ONE TO BELIEVE THAT HE WAS , UNDER THE IMPRES SION THAT HE WAS , IN FACT, FREE TO LEA VE AT SOME PO INT.
CERTAINLY THAT IS ARGUABLE. I DO MAKE AN ARGUMENT T HAT THERE IS A ARGUMENT TO BE MADE THAT, WHEN THEY FIRST STARTED QUESTIONING HI M AT THE AP ARTMENT COMPLEX THAT, THERE IS A CASE THAT I C ITE IN THE BRIEF , THAT IN ESSENCE, HE WAS IN CUSTODYTHEN, BUT CERTAINLY MY ARGUMENT IS BETTER --
IN ESSENCE HE WAS IN CUSTODY, THEN, BECAUSE --
BECAUSE HE WAS , THEY WERE FOCUSING ON HIM , AND IN REALITY , HE, ALTHOUGH HE DID SAY, I HAVE TO BE AT WO RK , HE KNEW THAT THESE WER E POLICE OFFICERS , THEY W ERE CONCERNED THAT HE HAD CUT HIS HAND. THEY KNEW THAT , HE KNEW THA T THEY WERE FOCUSING ON HIM .
CHIEF JUST ICE: WAIT . NOW , BUT THAT IS NOT QUITE THE CASE. THEY DIDN'T COME TO THE APARTMENT COMPLEX TO FIND HIM.
NO.
CHIEF JUSTICE: IN FACT, THE POLICE OFFICERS WERETALKING TO HIS MO THER.
CORRECT.
CHIEF JUSTICE: AND HE APPROACHED .
THAT'S CORRECT .
CHIEF JUSTICE: SO TO ME THAT IS A V ERY SIGNIFICANT FACT. NOW, WHETHER THEY AT THAT POINT MAY HAVE HAD THEIR SUSPICIONS ARE A R OUSED , BUT -- AR OUSED , B UT I DO N'T SEE ANYTHING IN THIS CASE AS OPPOSED TO SOME OF THE OTHER CASES, THAT, R E ALLY, GIVE RISE TO , THAT A REASONABLE PERSON IN HIS POSITION WOULD HAVE THOUGHT THAT HE WAS IN CUSTODY . ESPECIALLY WITH THAT I N ITIAL , THE FACT THAT , NOW, IF T HEY HAD GONE TO HIS HOUSE.
WELL , SUBSEQUENTLY THEY DID SAY, WHEN HE MENT IONED THE BICYCLE, HE HAD BEEN RIDING HIS BICYCL E THAT NIGHT EARLIER. HE KNEW THE FAMILY. THEY SAID LET US SEE YOUR BIKE, AND HE THEN TOOK THEM INTO HIS APARTM ENT, WHE RE HE SHOWED THEM THE BICYCLE , ANDTHERE WAS, ALSO , S OME MENTION OF SOME SH OES , A NDHE SAID HE HAD THROWN THEM AWAY A WE EK EA RLIER BECAUSETHEY GOT RUINED FISH ING. HIS MOTHER SAID, NO , YOU DIDN'T. I SAW THEM THE OTHER D AY.
CHIEF JUSTICE: THE TEST FOR WHETHER HE IS IN CUSTODYIS NOT WHETHER AT A PARTICULAR POINT IN TIME , THE POLICE WOULD HAVE H ADPROBABLE CA USE TO ARREST HIM , IS IT?
NO. IT IS FO R THE REAS ONABLE - -
CHIEF JUSTICE: CHIEF S O GOING BACK TO THIS ISSUE , THEY ASK HIM, HE APPROACHES THEM , HE VOLUNTARILY SHOWS THEM THE BIKE. YOU ARE NOT SAYING THAT THAT W OULD HAVE BEEN A SUPPRESSED , IF I, YOU KNOW , THAT THEY HAD SEI ZED THE BIKE.
CORRECT .
CHIEF JUSTICE: THEY TAKE HIM TO THE POLICE STATION O N THE WAY. THEY STOP , GET SOME THING T O EAT , AND HE IS NOT E VEN , HE HAS BEEN LEFT THERE BY HIMSELF.
THAT'S CORR ECT. NOW, I CONC EDE THAT MY ARGUMENT CERT AINLY GETS BETTER, ON CE THEY ENTER T HEPOLICE STATION, GO THROUGH A LOCKED DOOR, GO INTO A SIX BY SIX S MALL INTERVIEW ROOM WITH NO WINDOWS AND THEN P UT HIM IN THE CORNER AND SIT IN ESSENCE, BL OCKING THE EXIT, AND PROCEED TO ENGA GE IN SOPHISTICATED INTERROGATION TECHNIQUES .
WASN'T THIS INTERROGATION VIDEOED, THOUGH?
YES, IT WAS .
AND THE TRIAL JUDGE HAD THE BENEFIT OF ACTUALLY SEEING EXACTLY WHAT HAPP ENED , UNLIKE MANY OTHER CASES.
THAT'S TRUE, BUT I THINK IF YOU LOOK AT THE VIDEOT APE , I THINK IT CONFIRMS AND SUPPORTS OUR ARGUMENT. WHEN YOU LOOK AT THE FACTORS THAT THIS COURT CONSIDERED IN RAMIREZ , WHIC H I THINK IS CONTROLLING , RAMIREZ WAS 17. THE AGE OF THE DEFENDANT IS CRITICAL. MR. SCHO ENWETTER WAS 1 8. HE HAD NO PR IOR EXPOSURE T O THE CRIMINAL IS JUSTICE SYSTEM -- TO THE CRIM INAL JUSTICE SYSTEM. THE MANNER IN WHICH THE POLICE SUM MONED THE SUS PECT FOR QUESTIONING, T HEY WEREN'T IN UNIFOR M. THEY DID HAVE POLO SH IRTS WITH INSI GNIA , WITH SIDE ARMS ON THEIR HI PS, AND T HEY DROVE HIM IN A POLICE CAR , TO --
THERE IS NO DOUBT THAT HE KNEW THAT THEY WER E POLICEOFFICERS.
CORRECT.
SO THAT IS NOT REALLY ANISSUE. WHY DOES N'T THIS FA LL IN THE CATEGORY OF BEING A FACTUAL DETERMINATION , IN WHICH W E GIVE THE BENEFIT OF THE DOUBT TO THE TRIAL JUDGE, IN TERMS OF ESPEC IALLY I N SEEING THE VIDEO AND ALL OF THE FACTUAL CIRCUMSTANCES THAT EV OLVED HE RE, IN MAKING THE JUDGMENT CA LL THAT THE TRIAL JUDG E MADE IN THIS CASE, SO WHY WOULDN'T IT FALL UNDER THE RU LE THAT, IF WE DO THAT AND GIVE ALL THE INFERENCES , THE CREDIBILITYOF THE POLICE OFFICERS IN TERMS OF THE WAY THAT THEY PRESENT IT , SAYI NG THE VIDEO -- SEEING THE VIDE O, YOU EVEN STARTED O U T AND WE APPRECIATE THE CA NDOR IN WHICH YOU STARTED OUT SAYING , CERTAINLY THIS APPEAR S TO HAVE STARTED OUT AS A COMPLETELY VOLUNTARY AC T ON HIS PART, SO WHY SHOULDN'T THE RULE THAT, WITH REFERENCE TO RESOLU TION OF ISSUES OF FACT , THAT WE GIVE GREAT DE FERENCE TO THE TRIAL COURT JUDGE?
I DON'T HAVE A PROBLEM WITH GIVING GREAT DEF ERENCE TO THE TRIAL COURT'S CONCLUSION ON THE FACTS. HOWEVER , ON THE L AW, THIS COURT, IT IS A M IXEDQUESTION OF FACTS AND LAW , AND THIS COURT CAN REVIEW WHETHER THE TRIAL COURT ERRED IN DE NYING THE MOTION TO SUPP RESS .
THE DIFFIC ULTY IS THAT , WITH YOUR ACKNOWLEDG MENTTHAT THIS IS REALLY A FACT-INTENSIVE ISSUE, AND THAT WHAT YOU ARE REALLY SAYING IS THAT YOU BE LIEVE OR YOUR POSI TION IS THAT AT SOME POINT IN THIS SEQUENCE OF EV ENTS, ALL R IGHT , THAT A REASONABLE PERSON WOULD HAVE DLEERL -- WOULD HAVE CLEARLY , YOU ARE SAYING , A T THAT POINT IT REALLY BEC OMES A MATTER OF LAW THAT A REASONABLE PERSON WOULD HAVE FELT THAT THEY WERE IN CUSTODY AND HAD NO OPTION TO LEAVE.TELL US WHEN THAT CRITICAL POINT OCCURRED IN THIS CASE AND HOW WE CAN DET ERMINETHAT THAT WAS SUCH A ST RONG CIRCUMSTANCE THAT WE WOULD RULE AS A MATTER OF LAW , THAT A REASO NABLE PE RSON WOULD FEEL THAT THEY WERE IN CUSTODY.
WELL, I T IS A FOUR-PART TEST, AS THIS COURT SAID IN RAMIREZ, AND THE ATTOR NEY GENERAL HAS FILED A NOTICE OF SUPPLEMENTAL AUTHORITYWITH A CASE THAT THIS COURT DECIDED LAST THURSDAY, PEREZ , WHICH I THINK IS , ALSO , HELPFUL TO MY CASE. THIS COURT DISTINGUISH ED PEREZ FROM RAM IREZ , BECAUSE PEREZ WAS 23 YEARS OLD INSTEAD OF 17 , L IKE RAMIREZ , AND YOU TH WAS A BIG FACTOR IN RAMIREZ .
WASN'T THERE SOME FINDINGS BY THE TRIAL J UDGEIN THIS PARTIC ULAR CASE , THAT THIS G UY WAS, EVEN THOUGH HE MAY HAVE B EEN 18 , THAT HE REALLY ANS WERED QUESTIONS IN A PR ETTY SOPHISTICATED MANNER , THAT HE WAS PRE TTY SAVVY FOR AN 18 YEAR-O LD?
WELL , HE WAS INTELLIGENT. I WOULDN'T SAY SAVVY. THE JUDGE WAS CONTINUOUSLY PUTTING ON THE RECORD HOW IMPRESSED HE WAS WITH MR . SCHOENWETTER'S INTELLIGENCE ANIMATEURITY AND ARTICULATE , AND THAT TIES INTO MY OTHER POINT IN THE BRIE F AND ALSO THE A MICUS BRIEF THAT, THE JUDGE SHOWED A BA SIC MISUNDERSTANDING OF ASPERGER SYNDROME, BUT HE HAD N O ENCOUNTER, PREVIOUS ENCOUNTERS WITH THE CRIMINAL JUSTICE S Y STEM AT ALL. HE HAD N O PRIOR RECORD. AND THE FOUR -PART TEST --
WASN'T THERE SOMETHING IN HERE ABOUT A PETTY , RE TAIL THEFT OR PETITE THEFT O R SOMETHING?
YES . -- OR PE PETTY THEFT OR SOMETHING?
YES. THERE WAS A SHOPLIFTING POINT IN HIS L I FE. NOBODY IS SU RE WHAT HAPPENED WITH THAT OR WHE THER HE WAS FORMALLY ARRESTED , EVEN. THE DISPOSITION NO BODY SEEMED TO KNOW. PEREZ WAS DIF FERENT . PEREZ MET THE POLICE AT THE POLICE STATION, DRIVING HIS OWN CAR. SCHOENWETTER WAS BASIC ALLY --
HE DI DN'T HAVE A CAR .
RIGHT. WE WILL GIVE YOU A RID E TOTHE POLICE STATION , G OING BEHIND LOCKED DO ORS IN THE INTEGATION ROOM.THE PURPOSE, PL ACE, MANNER OF INTERROGATION. THE MANNER OF INTERROGATION WAS VERY COER CIVE . THE EX TENT --
I THOUGH T THE ADMISSIONS WERE MADE IN THE FIRST 15 OR SO MINU TES. DOES THE VIDEO, REALLY , SHOW THAT, LEADING QUESTIONS OR ABUSIVE TECHNIQUES WERE APPLIED?
YES.
YOU BELIEVE THAT?
YES , I REALLY DO. HE INITIALLY DEN IED. HE DID ADMI T, AS HE DID AT THE APARTMENT COMPLEX, THAT HE HAD BEEN RIDING HIS BIKE THAT NIGHT. AND THEN THE , USING THE COERCIVE TECH NIQUES WHICH ARE ON VIDEO , THE DET ECTIVE CONTINUOUSLY SAYS , I REALLY BELIEVE THAT THE PERSON WHO COMMITTED THOSE MURDER S WAS THE ONE THAT LEFT THAT B LOODTRAIL.YOU KNO W AND I KNOW HOW E ASY IT IS TO DO A BL OOD TEST , DNA THESE DAYS. YOU WATCH THE TV SHOWS , AND THEN HE STARTS GETTING INTO , WELL, DO YOU HAVE BLACKOUTS , AND MR. SCHOENWETTER SAID I HAD A BLACKOUT IN THE SIXTH GRA DE ONE TIME. THE DETE CTIVE LEAP S ON T HAT AND SAYS NO W WE ARE MA KING PROGRESS. YOU KNOW, THAT COULD BE SOMETHING WRONG. THAT IS A SE RIOUS MED ICALCONDITION.HOW ABOUT INSOMNIA ? DO YOU EVER HAVE TR OUBLE SLEEPING? YES, I DO. OH, WELL, THAT I S REALLY BIG.THAT IS HUGE. NOW, THERE ARE TWO- WAY S WE CAN PREENT SENT THIS , AND I -- PRESENT THIS , AND I QUO TE IN THE BRIEF , YOU ARE BEING COOPERATIVE, BUT HE ST ILL HASN'T MADE ADMISSIO NS. HE SAID HE CAN PRESENT IT ONE OF TWO-WAY S. IN YOUR CASE THE B OY HAD A PROBLEM SLEEPING. HE HAS A SER IOUS MED ICAL CONDITION.HE MAY HAVE THOUGHT HE WAS DREAMING.
WHAT ARE YOU ALLE GING THAT HE IS DOING BY AS KING THOSE QUESTIONS?
HE IS DELEWDING HIM A S TO HIS -- DELEWDING HIM AS TO HIS TRUE PO SITION. HE IS BASICALLY SAYING INTENT IS HUGE. HE IS BASICALLY SAYING IF YOU WENT IN THERE WITHOUT INTENT TO HURT A N YBODY INITIALLY , THEN IT IS O KAY.WE CAN GET YOU HE LP.
ARE YOU GOING , NOW, TO THE VOLUNTARINESS OF THE STATEMENT OR ARE YOU ARGUING THE PERCEPTION OF WHETHER OR NOT HE WAS IN CUSTODY?
I THIN K IT IS PART AND PARCEL ONE AND THE SAME.
IT SEEMS TO ME WHAT Y OUARE REALLY DOING NOW IS YOU ARE SORT OF SWITCHING TO A VOLUNTARINESS ARGUMENT THATHE WAS DECE IVED HERE , KIND OF THING, AND THEREF ORE THAT THE STATEMENT MIGHT NOT HAVE BEEN VOLUNTARY. I DIDN'T UNDERSTAND YOU TO BE RAIS ING THAT AS AN ISSUE.
I AM SO RRY THAT I DID N'T MAKE THAT C LEAR. THE PROBLE M THAT THE STATE AND THE JUDGE SEEMED TO BE HAVING BELOW WAS THAT HE WAS NOT IN CUS TODY. THEREFORE ANYTHING GOES, S O I HAVE TO GET BY THE FIRST PRONG THAT HE WAS IN CUST ODY , AND I THINK --
I THOUGHT THAT YOUR M A JOR THRUST HERE, THE WAY T HAT YOU ARE MAKING THIS ARGUMENT RESPECT WAS THE FAILURE TO GIVE MIRANDA WARNINGS .
RIGHT. WELL, IN THAT , FROM THAT , I T THERE FOR WAS INVOLUNTARY , BECAUSE OF THE FAILURE TO GIVE MIRANDA .
YOUR MOT ION IN THE TRIAL COURT WAS MULTIFACETED , T HAT IS THAT YOU CONTENDED , FIRST OF ALL , THAT IT WAS DEFECTIVE BECAUSE O F THE FAILURE TO GIVE MIRANDA WARNINGS.
YES.
AND THEN THAT IT WAS NOT VOLUNTARY, BECAUSE OF THE IMPROPER TECH NIQUES O F THE INTERROGATEORS?
YES. I BELIEVE THAT - -
AND THAT IS WHAT YOU ARE ARGUING ON APPEAL.
Y ES. YES. AND JUSTIN ING, THE GUYDIDN'T KNOW, AND THEN WE - - AND JUST CON CONTINUING -- AND JUSTIN EWING. THE GUY DIDN'T KNOW . WE CAN PRESENT I T , I AM GOING TO BE MONDA YS WITH YOU , A COLD -- I AM GO ING TO B E HONEST WITH YOU, A COLD , HARD CRIM INAL .
CHIEF JUSTIC E: WE D O HAVE THOSE IN YOUR BRIEF AND JUST TO REMIND YOU OF YOUR TIME, YOU DO HAVE OTHER ISSUES THAT YOU WA NTED TO AD DRESS. ONLY BECAUSE WE HAVE THE VIDEOTAPE OF THE CONFESSION , AND THAT IS SOMETHING THAT , YOU HAVE SE T IT OUT IN Y OUR BRIEF.
ALL RIGHT. YES.JUST TO SORT OF SUM UP , I THINK THAT THE VIDEO WILL SUPPORT THE CONC LUSION THAT , WITHOUT MILES AN HOUR AND, AEVEN THOUGH HE WAS IN CUSTODY -- WITHOUT MIRANDA, EVEN THOUGH HE WAS IN CUSTODY, EVEN THOUGH THE POLICE CO ERCED THE STATEMENT, ADMISSIONS F ROM MR . SCHOENWETTER.
WHAT ABOUT THE STATEM ENTS , QUESTION AND ANSWER WITH DETECTIVE BUTLER , WHER E HE SAID, DID YOU CO ME TO THE STATION VOLUNTARILY TODAY? YES. DID ANYONE FORCE YOU? NO. DID ANYONE HE WILL YOU YOU WAS UNDER ARR EST?NO. AND WERE YOU WILLING TO COMEDOWN HERE AND TALK TO ME? YES. AT ANY TIME DID ANYONE FORCE YOU TO TELL ME WHATHAPPENED? NO. YOU ARE DOING THIS ON YOUR OWN, FREE WILL?
YES, SI R, I AM. HAS ANYONE THREATENED YOU OR ANYTHING LIKE THAT? NO, SIR. AND YOU JUST WA NTED TO GET THIS OFF YOUR CHEST , IS THAT A YES OR NO? YES. YES, SIR.
THAT WAS ALL AFTER T HE FACT. ONCE HE SECU RED THE ADMISSIONS, THEN E MIR ANDIZED HIM AND THEN -- THEN HE MIRAND IZED HIM AND THEN HE EXTRA CTED THE CON FESSION AGAIN.
I UNDERSTAND THAT, BUT IN THE STATEMENT HE IS ACKNOWLEDGING THAT HE WAS NOT FORCED TO COME DO WN THERE AND THAT EVERYTHING HE WAS DOING WAS OF HIS OWN , FREE WILL.
I THINK THE TAPE AND THE FACTS IN EVIDENCE WOULD BELIE THAT AS AN 18 YEAR-OLD WITH ASPERGER 'S SYNDROME,THAT HE WAS A CTING VOLUNTARILY.
YOU ARE SAYING THAT WE HAVE TO GO BEHIND AND LOOK AT EVERYTHING E LSE , EVEN THOUGH HE ADMITTED THAT HEHE DID THIS VOL UNTARILY.
ABSOLUTELY.I THINK THOSE SUM MARY TYP E OF STATEMEN TS THAT HE E LICIT FROM DEFENDANTS -- THAT THEY ELICIT FROM DEFENDANTS , ESPECIALLY UNDER THOSE CIRCUMSTANCES, ARE WORTHLESS.WELL, ADDRESSING THE ISSUES THAT ARE RAISED IN THE AMICUS BRIEF , THE RE WAS AN AMICUS BRIEF FILED IN THIS CASE BY MAAP SERVICE S FOR AUTISM AND ASPERGER 'S SYNDROME, FEAT URING T HEPROFESSOR OF C HILD PSYCHIATRY AT YALE AND --
THIS IS A PA RT OF YOUR ARGUMENT THAT THE MIDGAITING CIRCUMSTANCES WERE NOT PROPERLY EVALUATEED?
THAT'S CORRECT, YOUR HONOR . TO SUM MARIZE THAT RA NDY HAS AN ORGA NIC BR AIN S Y NDROME , SPECIFICALLY ASPERGER'S SYNDROME AND THE CHARACTERISTIC MAN FISTTATIONS -- MANIFESTATIONS ARE CERTAINLYIN THE BRIEF .
THEY WERE IN THE BRIEF?
THAT'S CORRECT.
AND ONE OF THE ASSE RTIONS WAS THAT THE DEFENDANT WAS OPERATING UNDER EXT REME EMOTIONAL DISTURBANCE?
YES.
SO HE DID ASK HIM TO FIND WHAT YOU ASKED HIM TO FIND. YOUR ONLY DISPUTE IS AS TO THE WEIGHT OF THE MITI GATING CIRCUMSTANCES?
CORRECT.
AND IS N'T THAT WITHIN THE PROVINCE OF THE TRIAL COU RT AND WE RARELY, IF EVER I CAN REMEMBER, HAVE REVE RSED T HEWEIGHT THAT A TRIAL JUDGE GIVES TO A PARTICULAR MITIGATING CIRCUM STANCE.
TRUE. HOWEVER, THE WEIGHT, ALTHOUGH THE WEIGHT TO BE GIVEN MITIGATION , MITIGATING CIRCUMSTANCES NORMALLY IS COMMITTED TO THE SOUND DISCRETION OF THE TRIAL COURT, IT THIS COURT HAS MADE CLEAR THAT A SENTENCER MAY NOT DISREGARD SUBSTANTIAL UNCONTRO VERTED MITIGATING EVIDENCE.
HE DIDN'T DISREGARD T IN FACT, HE FOUND T.
WELL, HE FOUND IT BUT THEN HE COMPLETELY IG NORED IT . AGE. HE GAVE NO WEIG HT. AGE OF 18 WITH A DEVELOPMENTAL A GE OF 11 OR 12. NO WEIGHT .
DIDN'T HE BASIC ALLY SAY THAT THAT WAS REALLY N OTFOUND , THAT HE WAS DEVELOPMENTALLY 11 OR 1 2, BECAUSE HE GOES THROUGH , AGAIN, THE WH OLE INTELL IGENT AND SOPHISTICATED , THIS DEFENDANT, REALLY --
AGAIN, SHO WING HIS BASIC MISUNDERSTANDING OF ASPERGER 'S SYNDROME .
CHIEF JUSTICE: WOULD YOU TELL ME , HE WAS 18 AT THETIME OF THIS TRIAL. HOW FAR DID HE GO IN SCHO OL?
I BEL IEVE HE GRADUATED FROM HIGH SCHO OL. I DON'T THINK HE GRAD UATED FROM HIGH SCHO OL. I THINK HE GOT HIS G. E.D. .
CHIEF JUSTICE: AND WAS HE IN PUBLIC SCHOOL?
YES.
AND IS THERE , WAS THERE A DIAGNOSIS OF ASPERG ER'S SYNDROME D URING HIS SCHOOL AGE?
NO. THERE WAS A DIAGNOSIS OF ATTENTION DEFICIT DISORDER.
CHIEF JUSTICE: PRETTY , TOTALLY DIFFERENT DIAGNOSIS.
IT IS DIFFERENT BUT IT IS FREQUENTLY FOUND. MR. CHIEF JUSTICE
BUT IT IS FREQUENT , ATTE NTION DEFICIT DISO RDER IS PROBABLY ONE OF THE MOST E ITHER DIAGNOSED OR OVER DIAG NOSED SYNDROMES.
YES.
CHIEF JUSTICE: SO NOTHING , HERE IS WHAT YOU ARE SAYING , SOMEBODY WAS ESSENT IALLY AN AUTISTIC CHILD AND THERE I S NOTHING IN THE RE CORD , UP UNTIL THE TIME HE IS ARRESTED FOR DOUBLE HOMICIDE , TO INDICATE THAT HE HAD THIS SIGNIFICANT DISABILITY .
NO , BUT THERE IS A PET SCAN THAT SHOWS PHYSICAL EVIDENCE OF BRAIN ABNORMALITY, WHICH THEY DIAGNOSED AS ASPERGER 'S SYNDROME. IT IS NOT SOMETHING THAT H E CAN CONCOCT AT A LATE A GE. IT IS A CH RONIC ORGANIC CONDITION.
CHIEF JUSTICE: BY WATCHING THE VIDEOTAPE , WOULD WE BE ABLE TO TELL THAT THERE IS A LACK OF AFFECT OR THAT HE DO ESN'T ENGAGE?
NO. NO.
SO EXPLAIN HOW THE TRIAL JUDGE MISINTER PRETED THE SYNDROME.
WELL , BECAUSE FOR EX AMPLE , ALTHOUGH H E FOUND EXTREME EMOTIONAL OR ME NTAL DIST RESS, THE STATUTORY MITIGATOR RELATING TO THAT, HE GA VE IT LITTLE WEIGHT. HE SAYS , YES , IT IS THERE BUT IT DOE SN'T EXPLAIN HIS CONDUCT .
SO HOW DOES IT EXPLAIN , AND THE TRIAL JUDGE G OES THROUGH A LIST , HOW DOES HE EXPLAIN THE DELI BERATE ACTIONS PRIOR TO BEING INTERRUPTED BY THE PARENTS ? HOW DOES THE SYN DROME, AS OPPOSED TO THE PREOCCUPATION OF SEX OR SATANISM OR OTHER ASPECTS , HOW DOES THE SYNDROME EXPLAIN ALL OF THE INTENTIONAL ACTIVITY PRIOR TO THE CONTA CT OF THE PARENTS?
BASED ON HIS INTENSE PREOCCUPATION WITH PORNOGRAPHY AND FI NDING A GIRL TO HAVE SEX WITH, HE MADE A DECISION TO A CT ON THAT PREOCCUPATION, BY ENTERING HIS BEST FRIE ND'S HOUSE IN THE MIDD LE OF THENIGHT , AND THEN THE VI OLENT PANIC REA CTION WH EN HE WAS DISCOVERED, IS ALSO EX ISTENT WITH THE SYND ROME, ITSE LF .
SO ARE YOU REALLY SAYING THAT THE SYNDROME MADE HIM GO INTO THIS PANIC MODE?
YES.
THAT HE WAS ACTING .
POOR IMP ULSE CON TROL IS ONE OF THE FACT ORS.
BUT THE ACTIONS PRI OR TO THE PANIC WERE PRET TY DELIBERATE AND THOUGHT OUT.
IN A FLAWED WAY. VERY FLAWED WAY. THE E NTIRE SCEN ARIO WAS -- 6.
MOST OF THE SCEN ARIOS IN THIS CIRCUMSTANCE ARE FLAWED.
IF YOU HAVE GOT A SYNDROME LIKE R A ND Y SCHOENWETTER, THAT IS AN ESSENTIAL DECISION, BUT THE TURNED AROUND AND SAID HE SEEMS FINE TO ME.
NONE OF THESE DOCTORSSAID THAT HE DID NOT HAVE THE ABILITY TO THOUGHT O UTWHAT HE WAS WILL ING TO DO.
NO, BUT THEY DID AG REE THAT HE COULD NOT CONF ORM HIS CONDUCT TO THE REQUIREMENTS OF THE LA W.
ON CE HE GOT INTO IT A NDREACHED THAT PANIC STA GE.
WELL , BURGLARY, ITSELF , I MEAN, THE BURGLARY OF THEHOUSE, ITSELF , WAS SOMETHING THAT HE COULD NOT , HE WAS , HAD THIS PREOC CUPATION T HAT HE WAS , F ELT THIS INTE RNAL FOCUS THAT , TO ACT ON .
CHIEF JUSTICE: BUT W A IT. JUST WHAT JUSTICE BELL WAS SAYING, I AM HAVING TROU BLE, SOMETHING LIKE A FORM OF AUTISM IS CERTAINLY NOTHING TO BE TAKEN LI GHTLY , AND I DON'T REALLY SEE , READING THE JUDGE'S D E TAILED ORDER THAT HE TOOK IT LI GHTLY. THE QUESTION IS , HOW DOES IT FIT . AS JUSTICE BELL SAID , FROM THE TIME THE DEFENDANT STOPPED TAKING RIT ALIN IN THE SEVE NTH GRADE TO THE DATE OF THE OFFENSES , THE RE WAS NO REPO RTED BEHAVIORAL ISSUES OF THE DEFENDANT , OTHER THAN , PERHA PS , SHOPLIFTING, IT SOUNDS LIKE HE WAS JUST DOING FINE. GOING BACK TO THIS THING OF THIS PREOCC UPATION WITH SEX , WHICH I DON'T KNOW, THAT IS NOT A, IS THAT A SIMPTHOM - - A SY MPTOM OF AUT ISM, OR THAT IS AN OTHER --
IT CAN BE DIFFERENT THINGS. PREOCCUPATION.I ME AN, HIS MOTHER TESTIFIEDTHAT HE WAS CA LLING 9 00 S EXLINES WHEN HE WAS TEN YE AR S OLD, I BELIEVE , AND VERY INAPPROPRIATE FOR - -
CHIEF JUSTICE: CHIEF THEN , BUT OF COURSE, AL THOUGH HE MIGHT HAVE -- HE WASN'T CLEAR WHY HE WE NT IN THERE BUT THERE WAS NO SEX UAL INVOLVEMENT IN THESE CRIMES, SO EVEN THE PREOCCUPATION DOESN'T REALLY , IN OTHER WORDS WE ARE LOOKING A T WHETHER YOU WANT US TO REWEIGH HIS MITIGATION AND SAY THIS WAS M UCH MORE SIGNIFICANT IN THECOMMISSION OF THIS CR IME THAN THE JUDGE GAVE IT CREDIT FOR, AND I AM ST IL L HAVING K RUBL LINKING THE T WO THINGS UP -- HAVING TRO UBLE LINKING THE TWO THINGS UP , AND IT SEEMS LIKE MA YB E I T SHOULD HAVE BEEN G IVEN MODERATE WEIGHT, BUT EVEN IF IT WAS GIVEN MO DERATE WEIGHT , GIVEN THE NATURE OF T HESECRIMES AND THE DO UBLE HOMICIDE AND THE CONTEMPORANEOUS FELONY, IT IS PRETTY HARD TO FIND THAT THAT WOULD OVERCOME THE , B E OVERCOME BY THIS PARTICULAR DISORDER.
WELL , I DON'T KNOW.IT IS VERY RA RE TO HAVE A CAP ITAL APPEAL IN MY EXPERIENCE THAT THE DEFENDANT HAS NO PRIOR CRIMINAL HISTORY AS A MITIGATOR AND HAVE BOTH MENTAL MITIGATOR S FOUND B Y THE TRIAL JUDGE, ALTHOUGH AS WE CONTEND , GIVEN INAPPROPRIATE WEIGHT.
CHIEF JUSTICE: NOW , YOU COULD SAY , I THINK THE PART WHERE IT WOULD BE INTERESTING, IS THAT YOU HAVE, AND AG AIN HE IS 18 YEARS OLD, SO HE J UST MISSE D THE CUTOFF FOR , , 17 BECOME 18.
RI GHT.
YOUR EXPERT S SAY HE HAD A DEVELOPMENTAL AGE OF?
11 OR 1 2.
BUT HOW, IN REALITY , WA S THAT MANIF ESTING ITSELF IN HIS EVERYDAY LIFE ? HOW WAS HE ACTING LIKE A 11 OR 12-YEAR-OLD? WHAT THE JUDGE OBSERVED WAS SOMEBODY WHO WAS ACTING MATURE. NOW, YOU ARE SAYING IT IS BECAUSE HE IS AUTI STIC, BUT IF SOMEBODY IS ACTING LIKE A 11 OR 12-YEAR-OLD, BEFORE THIS CRIME WHAT WAS IT THATHE WAS DOING THAT SHOWS THAT HE WASN'T ABLE , DID HE NOT HOLD A JO B? DID HE HOLD A JOB?
HE WORKED AT KRYSTAL'S .
CHIEF JUSTICE: WHERE?
KRYSTAL'S BURGERS.
WHAT DID HE D O THERE?
COU NTER. CLEANUP .
DID HE LIVE WITH HIS MOTHER?
HIS WHOLE GOAL WAS TO JOIN THE MARI NES WITH HIS FRIEND BUT HIS EYESIGHT KEPT HIM OUT. THERE WAS A LOT OF ANECDOTAL TESTIMONY ABOUT HOW HE NEVER FIT IN. HE GOT BEAT UP ALL OF THE TIME BY HIS CONTEMPORARIES. HE WAS SO CIALLY INEP T, AND ALL OF THAT IS CONSIS TENT, AND HIS DECISIONS , ESPECIALLY AS HE MADE THAT NIGHT THERE, IS UNCONTESTED EVIDENCE THAT HIS FRON TA L LOBE DYSFUN CTION AFF ECTED THE EXEC UTIVE F UNCTION OF HIS BRAIN, AND BECAUS E OF THAT, HE WAS UN ABLE TO CONFORM HIS CONDUCT TO THE REQUIREMENTS OF THE LAW.ALL OF THE EXPE RTS THAT TESTIFIED, AGREED WITH. THAT THEY SAID THAT THIS DOES EXPLAIN HIS COND UCT. HE WAS FOCU SED WITH HIS OBSESSION. INAPPROPRIATE PROBLEM-SOLVING.
CHIEF JUSTICE: BUT AS JUSTICE CA NTERO POINTED OUT IN HIS R E BUTTAL , THE JUDGE FOUND THE MITIGATOR. IF HE HA DN'T FOUND THE MITIGATOR.THE QUESTION IS THE WEIGHT HE GAVE TO THE MITIGATOR .
I AGR EE , BUT I THINK T HAT I AM SEEING MORE AND MORE AND I THINK THIS COURT IS SEEING MORE AND MORE, AF TER THIS COURT 'S DECISION IN TRIESE, ESPECIALLY WH ICH AND DICK E IGHT S THE SP OKE - - ABDICATE S THE RESPONSIBILITY , ESPECIALLY V ALID ME NTAL MITIGATORS, ET CETERA, ITHINK YOU SEE MORE AND MORE TRIAL JUDGES SIMPLY GIVING LIP SERVICE TO MITIGATORS THAT ARE SUBSTA NTIAL , VA LID MITIGATORS, AND AS A RES ULT, IT SORT OF MAKE S IT A P PEAL - PROOF INAPPROPRIATELY SO. I DON'T THINK --
HE REALLY GIVES THIS LIP SERVICE.HE GOES THROUG H A COUPLE HE WILL OF P A GES -- A COUPLE OF PAGES OF WHAT THE DO CTORS ACTUALLY SAID ABOUT HIS MEDICAL COND ITION . I ME AN, HE G OES ON AT LENGTH ABOUT THIS, AND THAT IS NOT REALLY GIVING LIP SERVICE TO IT.
BUT THEN HIS CONCLUSION , THOUGH, THAT THE AGE OF 18 , AND A DEVELOPMENTAL AGE O F 11 OR 12 , W HICH HE DOES REJECT THAT. HE SAYS I HAVE SEEN HIM I N COURT , THE BRIEF EXPOSURE I HAVE HAD TO HIM AND HOW INTELLIGENT AND ARTICULATE HE IS , I AM CONVINCED THAT IS HE MORE THAN 11 OR 12. YOUNG IT IS APPROPRIATE - - I DON'T THINK IT ISAPPROPRIATE OR VALID FOR HIM TO MAKE --
NOT ONLY THE OBSERVATION OF THIS DEFENDANT BUT AS WEPOINTED OUT THERE , IS REALLY NO ONE E LSE WHO TALKS ABOUT THIS DEFENDANT ACTING IN A CHILD LIKE MAN NER , AS A 11 OR 12-YEAR-OLD WOULD ACT .
WELL , IS HE ONLY 18 TO BEGIN WITH , AND THE , I T HINK HE HAD A FIGHT WITH HIS GIRLFRIEND AT KRYS TAL'S WHO REALLY WASN'T HIS GIRLFRIEND , AND THAT WAS, THAT RE EKED OF IMMATURITY .
HOW SO? THESE KINDS OF THINGS HAPPEN ALL THE TIME.
BUT THE WAY HE PERCEIVED THE RELATIONSHIP , FOR ONE THING, I THINK IT WAS CL EAR.
CHIEF JUSTICE: I WANT TO MAKE SURE THE DEFENDANT , AS A DEATH CASE YOU ONLY RESERVED FIVE MINUTES FOR REBUTTAL. I DON'T KNOW HOW MUCH YOU HAVE LEFT, BUT YOU MAY WANT TO SAVE A FEW MIN UTES .
OKAY. JUST TO CONCLUDE ON THAT , I JUST THINK THAT THE TRIAL JUDGE GIVING NO WEIGHT T O HIS AGE OF 18 AND LI TTLE WEIGHT TO THE TWO STATUTORY MENTAL MITIGATORS WITH THIS RECORD, IS COMPLE TELY INAPPROPRIATE. THANK YOU.
CHIEF JUSTICE: SEEMS LIKE YOU HAVE A BU SY WE EK THIS WEEK, MS. DAVIS.
MAY IT PLEASE THE COURT. MY NAME IS BARB ARA DAVIS , AND TO BE GIN WITH , I WOULD LIKE TO POINT OUT THAT, O N THE TRIAL JUDGE'S OR DER , PAGE 26 OF 34 , WHICH IS 8 13 OF THE RE CORD , HE DID GIVE LITTLE WEIGHT TO THE AGE. HE, H E FOUND FOUR STATUTORY MITIGATING CIRCUMSTANCES , AND HE GAVE LI TTLE WEIGHT TO EACH OF THOSE, SO IT WASN'T NO WEIGHT.IT WAS LITT LE WEIGHT , AND H E WENT THROUGH THAT DIS CUSSION . ALSO , DR . REE VES SAYING VIEW THE VIDEOTAPE. ONE OF THE QUESTIONS WHEN DR . REIBSEIN WAS TESTIF YING WAS HAD YOU VIE WE D THE VIDE OTAPE, AND THEY STOPPED AND HE VIEWED THE VIDEOTAPE, AND HE SAID, NO, I DID NOT SEE ANY SIGNS OF ASPERGER 'S SYND ROME . ALSO , DOCTOR --
WHERE WAS THIS?
THE EXPERT FOR THE DEFENSE , DR . REIBSAIN.
CHIEF JUSTICE: YOU ARE SAYING HE WATCHED THE VIDEOTAPE AND HE SAW --
HE SAW NO SIGNS OF ASPERGER SYNDROME. HOWEVER , DR . REIBSAIN DID FIND THAT, THROUGH HIS TESTING THERE WERE SIGNS OF ASPERGER 'S SYNDROME AND HE IS THE ONE WHO ASKED FOR THE TESTING WITH DR . WO O. HE OP INED THAT IT WOULD BE EXTREME EMOTIONAL DISTURBANCE BUT NOT INABILITY TO APPRECIATE. DR. PRICHARD , NONA PRIC HARD RESPECT WHO WAS A N EXPERT -- KNOWN PRACH ARRESTED, WHO WAS AN EXPERT -- NONA PRICHARD, WHO WAS AN EXPERT ON ASPERGER 'S SYNDROME , THEY DIDN'T AGREE ABOUT --
WHAT ABOUT GREENBERG AND PLOMOS?
THEY DID THE COMPETENCY EVALUATION AND NE ITHER ONE OF THEM SAW SIGN S OF ASPERGER'S SYN DROME.
WAS THIS COMPETE NCY DONE AT A TIME WHEN THEY WOULDHAVE KNOWN TO LOOK FOR THAT ASPERGER'S SYNDROME?
NO. THEY WERE NOT ASKED TO LOOK FOR ASPERGER 'S. THERE WERE TWO COMPETENCY EVALUATIONS, ONE AF TE R HE WROTE THE LETTER TO THE JUDGE AND ONE WANTING TO PLEA, AND DR . REIBSAIN DID THAT ONE, AND THERE W ASANOTHER ONE WHEN HE HAD A DISTURBANCE WITH H ISATTORNEYS ABOUT --
THERE WERE TWO, WERE N' T THERE, TWO, AFTER HIS CONFRONTATION WITH THE JUDGE, SAYING THAT HE DID NOT AGREE WITH CERTAIN OBJECTION THAT IS HIS ATTORNEYS W ERE MAKING.
YES. AND THAT , ON THE VICTIM IMPACT. HE WANT ED, HE THOUGHT EVERYONE WAS UN IQUE AND THE VICTIM IMPACT SHOULD COME IN. HE DISAGREED WITH HIS ATTORNEYS , OBJ ECTING TO VICTIM IMPA CT, AND THEN HE , ALSO, OBJE CTED TO THEM PUTING IN EVIDENCE THAT HE HAD MENTAL PROBLEMS.
YOU ARE GOING TO ADDR ESS THE MITIGATING CIRCUMSTANCES ISSUE FIRS T? WE NEED TO SEE WHERE WE ARE HERE ON --
I WOULD LIKE TO CLEAR UP THOSE PARTS OF THE RECORD.
CHIEF JUSTICE: WHIL E WE ARE ON THE MITIGATORS, THOUGH, I HAVE A QUESTION, AND IT, REALLY, GOES TO A LITTLE BIT OF WHAT MR . QUARRELS IS IMPLY -- MR . QUARLES IS IMPLY ING ABOUT AFTER TRIESE AND ABOUT HOW WE WERE APPLYING , WE DIDN'T WANT TO SECONDIES GUESS, BUT THERE WERE TWO MITIGATORS , THAT HE WAS AN EMPLOYED TEENAGER AND HE LPED HIS MOTHER FINANCIALLY , REMA INED EMPLOYED UNTIL HE WAS ARRESTED , SWITCHING JOBS , ALSO TESTIFIED T HAT DEFENDANT HEL PS HER BY GIVING HER MONEY WHEN SHE SNEED KNEADED T FIND T HAT THE -- WHEN SHE N E EDED IT, FIND THAT THE MITIGATOR IS GIVEN THE GR EATER WEIGHT OF THE EVIDENCE AND FIND NO STATUTORY WEIGHT OF THE MITIGATOR.I THINK IF THE JUDGE, IN TRIESE WAS GOING TO FIND THE MITIGATOR BUT GIVE IT NO WEIGHT, WE WOULD WO NDER WHY HE WOULDN'T GIVE A MITIGATOR , IT SEEMS LIKE WHAT YOU ARE REALLY PAINT AGO PICTURE OF IS THAT THIS WAS A GOOD KID , MAYBE A LITTLE ODD BUT A GOOD KID, UP UNTIL THE TIME OF THESE HORRIBLE MUR DERS. AND THEN AN OTHER ONE , WHICH SORT OF STRUCK ME A S , TAUBS ABOUT THE MOTHER , THAT THE -- TALKS ABOUT THE MOTHER , THAT THE DEFENDANT HAS A CLOSE, LO VING RELATIONSHIP WITH HIS MOTHER AND YOU NGER SISTER, TALKS HOW HELPFUL HE WAS , WASHING DISHES , GIVING HER MONEY. THE YOUNGER SI STER LOVED VERY MUCH. SHE TESTI FIED THE SISTER MISSES HIM. THE SISTER IS ST ILL V ERY CLOSE , FINDS THIS MITIGATE OR HAS BEEN PROVEN AND GIVES THAT NO WEIGHT. SO WHAT IS THAT , I MEAN , HOW DO WE , IN TER MS OF TRYING TO GET A PIC TURE OF T HIS DEFENDANT , E ITHER THIS IS A DEFENDANT THAT IS , HAS SOME SERIOUS EMOTIONAL IS SUES THAT IS ASPERGER 'S SYNDROME, IF CO RRECT , OR THIS I S BASICALLY A GOOD K ID UP UNTIL THE TIME THAT THIS HAPPENED, AND THEN SOM ETHING THAT IS OUT OF CHAR ACTER FOR HIM OCCURS. HE HAS ACCE PTED RESPONSIBILITY, PLEA DS GUILTY, AND HE EVEN WANTS , HE, THAT IS WHAT SO IMPRESSED THE JUDGE , SO HOW DO WE DEAL WITH , IN CON TEXT , WHEN A JUDGE IS JUST SAY ING I AM NOT GIVING THAT WEIGHT OR GIVING THAT LITTLE WEIGHT , THAT WE JUST DEFER TO IT, WITHOUT AN EXPL ANATION AS TO THE JUDGE'S THOUGHT PROCESS ?
WELL , PERHAPS HE COU LD HAVE GIVEN A BE TTER EXPLANATION ON THIS , BUT A JUDGE CAN CONSIDER A MITIGATOR THAT IS PROPOSED BUT GIVE IT NO W EIGHT , AND, REMEMBER THAT SCHOENWETTER , ALSO, HIS MOTHER HAD T O PUT A JAMMER ON THE COMP UTER BECAUSE HE K EPT ACC ESSING ALL THESE PORNOGRAPHIC SI TES , AND THE SISTER DID NOT LIVE WITH THEM. SO HE G AVE A LOT OF HEARTACHE TO THIS MOTHER , BECAUSE HE WOULD DO EXACTLY WHAT HE WANTED TO DO. I MEAN , HE IS OUT O N HIS BIKE AT THREE IN THE MORNING. SHE HAD TO PUT THESE JAM MERS ON. SHE ACTUALLY AT ONE POINT , TOO T OOK A DISC TO THE POLICE DEPARTMENT BECAUSE HEWAS ACCESSING PORNOGRAPHICSITES AND SHE WAS AFRAID HE WAS IN CH ILD PORNOGRA PHY, SO YOU HAVE TO LO OK AT ALL OF THE TESTIM ONY , AND BECAUSE OF WHAT THE JUDGE PROP OSED , THEY DID SAY HE HELPED HIS MOTHER AROUND THE HOUSE. IN THE NIGHTTIME HE I S ACCESSING THE WEB SITE TO THE POINT WHERE SHE IS HAVING TO GO TO THE POLICE AND HAVING TO JAM HER COMPUTER AND EVERYTHING ELSE.
DON'T WE HAVE , THOUGH, I AM CONCERNED ABOUT THE ARGUMENT OF THE DEFENDANTHERE, THAT AFTER OUR DECISION IN TRIESE , THAT AFTER WHATEVER, TRIAL JUDGES, IT LOOKS , NOW , REPEATEDLY THROUGH THIS SENTENCING ORDER , THE TRIAL JUDGE F INDSTHE MITIGATOR BUT THEN GIVES IT LITTLE OR NO WEIGHT , JUST REPEATEDLY. JUST, YOU KNOW , AND SO IS THERE A DANGER, NOW , THAT WE HAVE SENT A SIGN AL OUT THERE , WELL , IF YOU JUST USE, IN EARLIER DECISIONS , WE HAD SAID THAT THE JUDGE COULD NOT , IN EF FECT , NOT FIND A MILE GATOR BY GIVING IT NO -- A MITIGATOR BY GIVING IT NO WEIGHT OR LITTLE WEIGHT , SO DO WE HAVE AN ISSUE OUT THERE , WHERE THERE IS THE APPEARANCE OF A FINDING OF SUBSTANTIAL MITIGATION , IF YOU ADD UP THE NUMBERS , BUT THE NET EF FECT IS , BY USING THE MA GIC WORD OF FINDING IT , THAT, BUT THEN GIVING I T LITTLE OR NO WEIGHT , THAT WE IN EFFECT, HAVE GIVEN SO RT OF A BLANK CHEC K TO THE TRIAL COURTS, NOW , IN TERMS OF BEING ABLE TO IGNORE MITIGATION. LET ME USE AS AN EXAMPLE , THERE , WE HAVE SAID THAT AGE SHOULD BE A MITIGATOR , ESPECIALLY IF IT IS COMBINED WITH OTHER CIRCUMSTANCES , AND NOW HERE , WE HAVE SORT OF A CONF LICTING IM AGE. WE HAVE A , APPARENTLY A HIGH IQ, BUT THEN WE HAVE THIS CONDITION THAT THE DEFENDANT SUFFERS , AND THEN SUBSTANTIAL TESTIMONY ABOUT SORT OF HIM BEING TR EATED ABUSIVE LY BY HIS PEERS AND OTHERS, YOU KNOW , FOR VARIOUS REASONS , BUT BOTTOM LINE, HE ENDS UP BEING , HE IS ONLY 1 8. HOW MANY MONTHS, HOW CLO SEDID HE COME TO BEING UNDER , DO YOU KNOW?
HE WAS 18 YEARS AND TEN MONTHS.
THE , YOU KNOW , HE IS LESS THAN A YEAR A WAY FROM ESCAPING THE EFFECT OF THE LAW HO LDING THAT WE JUST HOLD AS A MA TTER OF LAW , SOMEBODY THAT YOUNG AND IMMATURE. WHY SHOULDN'T THE TRIAL JUDGE, REALLY , GIVE THAT, IN THAT CIRCUMSTANCE , GREAT WEIGHT, AS O PPOSED T O SOMEBODY THAT WAS 21, MA YBE SEVERAL YEARS PAST THAT LEGAL AGE WHERE WE HAVE DETERMINED OR THE U .S. SUPREME COURT HAS , AS A MATTER OF LAW , THAT THE IR IMMATURITY SHOULD NOT SUB MIT THEM TO THAT ? SO WHY SHOULDN'T THE TRIALJUDGE , IN ESSENCE , IN OTHER WORDS , HAVE GIVEN MORE WEIGHT TO THESE THINGS?
FIRST OF ALL, I WANT TO POINT OUT THAT HE DID GIVE MODERATE WEIGHT TO THE FACT HE ACCEPTED RESPONSIBILITY. SECONDLY, I MEAN , IF WE ARE TALKING ABOUT SEMANTICS OF LITTLE WEIGHT.
DID HE GIVE MO DERATE WEIGHT TO ANY OF THE OTHERS?
NO , HE DID NOT .
SO HE GAVE LITTLE OR NO WEIGHT TO ALL OF THE OTHE RS AND HE GAVE MOD ERATE WEIGHT TO THE ONE THING ABOUT , YOU KNOW, THAT HE HAS CONF ESSED , AND DIRE CTLY P LED GUILTY TO A TRIAL COURT.
HISTOR ICALLY, IT IS THIS COURT'S JOB NOT TO REWEIGH THIS. HOWEVER, IF THE JUDGE NE EDS, IS GOING TO BE SECOND-GUESSED, HE MADE COMPLETE FINDINGS AS TO E ACH ONE OF THESE ASPE CTS . ON THE AGE , HE NOT ED THAT THIS IS THE DEFENDANT WHO DOES NOT ACT I A M MATURELY . THERE -- I A M TURAL. DR. -- IM MATURE LY . DR. RE EVES , CERTAINLY AS TO THE AS PECK , AUT ISM DOESN'THAVE TO -- ASPERGER'S SYNDROME DOES N'T HAVE TO DO WITH YOUR ABIL ITY TO REACT. NOT SO MUCH A S TO Y OUR ABILITY TO CALCULATE MATH O R HAVE A JOB, WHICH HE FO UND THAT HE COULD DO. HE NOTED THAT THERE WAS CONFLICTING EV IDENCE ON THE ASPERGER'S. WHERE THERE IS CONF LICTING EVIDENCE, IT IS THE TRIAL JUDGE WHO RESOLVES THOSE CONFLICTS, WHO JUDGES THOSE WITNESSES, AND IT IS THIS COURT'S JOB NOT TO REW EIGH, BUT IF THOSE ARE SUPPORTED BY COMP ETENT SUBSTANTIAL EVIDENCE, THEN THAT IS T HESCOPE OF THE REVIEW.
HOW DOES OUR OTHER CASE , THERE IS ALSO CASE LAW FR OM THIS COURT WHICH INDI CATES THAT WHEN A DEFENDANT IS PRESENTING MITIGATING EVIDENCE, THE TRIAL JUDGE HAS TO LOOK AT THAT EVIDENCE , AND IF IT IS SHOWN BY THE GREATER WEIGHT OF THE EVIDENCE THAT IT HAS BEEN PROVEN, YOU HAVE TO FIND IT AS A MITIGATOR , BUT YOU , ALSO, HAVE TO LOOK AT THIS EVIDENCE IN CONTEXT AND SEE IF IT IS ACT UALLY MITIGATING , AND IN THE CONTEXT OF THIS CRIME, SO HOW DOES THAT PL AY INTO THE TRIAL JUDGE'S EVALUATION OF MITIGATING ? HE HAS PRESENTED THIS EVIDENCE. IS IT ACTUALLY MITIGATING ? WHAT KIND OF PRO CESS DOES A TRIAL JUDGE HAVE TO GO THROUGH , TO DETERMINEWHETHER OR NOT IT IS, IN FACT, MITIGATING IN THE CIRCUMSTANCES OF THIS CRIME?
WELL , THAT IS INTERESTING, BECAUSE, YOU SEE , B AD THINGS CAN BE MITIGATING AND GOOD THINGS CAN BE MITIGATING. ASPERGER'S SYNDROME CA N BE MITIGATING, AND HIS FASCINATION AS DR . REIBSTAIN SAID, WITH DE ATH , SA TANISM , AND SEXUALITY YAL T, SO THAT CAN BE