PLEASE RIS E .

LADIES AND GENTLEMEN, THE FLORIDA SUPREME COURT . PLEASE BE S EATE D .

THE NEX T CAS E O N T HI S M ORNING'S CAL EN DA R I S E RN ES T WHITFIELD VERSU S T HE S TATEOF FLORIDA. PARTIES READY ? M R. CANNON, YOU MAY P ROCE ED .

M AD AM CHI EF JUSTICE, MEMBERS OF THE COURT, MY NAME IS PETER CAN NO N . HERE O N BEHALF O F E RNES T WHITFIELD. MAY IT PLEASE THE COURT , ERNEST WHITF IE LD'S CAP ITAL DEATH PENALTY CASE WAS RUSHED TO TRIAL.

CAN YOU SPEAK UP A LITTLE BIT?

I'M SORRY.

WAS RUSHED TO T RIAL I N 9 1 DAYS BY A N A TTORNEY W HO T ES TIFIED A T T HE E VI DE NTIA RY HEARING THAT HE W AS UNPREPARED TO GO TO T RIAL .

IT WAS R USHE D T O T RI ALBECAUSE THE DEFENDANT DEMANDED IT , DIDN'T HE?

ABSOLUTELY, COR RE CT.

LIK EWISE T HE O NL Y D EFEN SE EXPERT A T T RI AL T ES TI FIED BOTH DURING T HE T RI AL A ND A T THE EVI DE NT IARY H EARING THAT HE WAS LIKEW IS E U NPREPA RE D .

WHAT SHOULD THE TRI AL JUDGE HAVE DONE O NCE THE DEFENDANT DEMANDED S PE ED Y TRIAL, IN S IRSED THA T H E WANTED A S PE ED Y T RI AL ? WHAT SHOULD HAVE B EEN T HE NEXT STEP OF EITHER THE TRIAL COURT O R T RIAL C OUNSEL?

THE LOWER COU RT, THE TRIAL COURT SHO ULD HAVE INQUIRED OF T HE T RI AL ATTORNEYS , MR. WIL LIAM S, ARE YOU READY TO T RY THI S C ASE? WHEN YOU FIL E A M OT ION DEMANDING SPEEDY T RIAL UNDER THE RULES YOU ARE ANN OUNC ING TO THE C OURT , I 'M R EA DY F OR TRIAL. BOTH A TTOR NEYS T ESTI FIED THAT THEY WER EN'T REA DY F OR TRIAL. AS A MATTER OF FACT, WHAT IS CLEAR EVIDENCE IS WHEN T HE Y FILED THE M OT IO N DEM AN DI NG SPEEDY, WHICH T HEY THOUGHT WAS A B AD I DE A , T HE Y A LS O FILED A M OTION T O C ONTI NU E . A T THE SAME TIME.

DOESN'T T HA T DEM ON ST RA TE THAT THE RIGHT O F THE S PE EDY T RIAL BELONGS TO THE INDIVIDUAL AND NOT THE LAWYER AND THAT THROWS THI S INTO THE CONFLICT THA T THI S TRIAL JUDGE W AS FACED WITH? I MEAN, ISN'T THI S R EC OR D VERY, VERY C LE AR T HAT THE TRIAL JUDGE AND THE L AWYERS WERE ALL C ON CE RNED THA T THI S I NDIVIDUAL WAS INS IS TING ON THIS SPE EDY TRIAL R UL E , AND THAT, IN FACT , ISN 'T T HERE EVIDENCE THAT HE THOUGHT HE COULD USE THIS FOR H IS OWN T ACTICAL AND STR AT EGIC BENEFIT AND MAY BE CREATE A MISTRIAL AND PROBLEMS? ISN'T THAT PART OF THE EVIDENCE HERE?

THAT IS PART O F THE EVIDENCE, BUT I T' S V ERY EAR RATIONALE THINKING A S T HI S COURT'S DIRECT OPINION REVEALS, HE WAS IRR ATIO NA L DURING TRIAL. HE SUFFERED F RO M M AN Y I LLNESSES, P TS D , PAR ANOI A AND SEV ERE CRA CK C OC AINE .

Y OU A RE NOT S AYIN G T HE RE SHOULD HAVE BEEN A COMPETENCEY HEARING?

THERE WERE HEA RI NGS AND HE WAS DETERMINED TO B E COMPETENT.HOWEVER, THE RIGHT TO SPEEDY TRIAL, WE HAVE T O DISTINGUISH BETWEEN CONSTITUTIONAL SPEEDY TRIAL AND S PEEDY TRIAL ON THE 3.191. THIS COURT IN S EVER AL OTH ER LOWER C OURTS HAVE C ONSI STEN T LY HELD THAT THE RIGHT T O W AI VE S PEEDY TRIAL C AN B E WAI VE D BY A N A TTOR NE Y W IT HO UT CONSENT OF THE ATTORNEYS. AS A MATTER OF FACT, THERE ARE NUM EROUS CASES W HERE A B ATTORNEY AND WE HEARD THI S MORNI NG E XP ERIE NC ED TRI AL JUDGES WHERE A T RI AL ATTORNEY WILL GO AHEAD AND ACQ UIESCE TO A TRIAL DAT E THAT'S BEYOND SPEEDY. ONCE HE DOES THAT , H E WAIVE S SPEEDY UNDER THE R UL ES B Y MISTAKE , S O THE RIG HT T O DEMAND S PE ED Y T RIAL U NDER 3.191 IS W HO LL Y STR AT EGIC . IT'S A R IG HT T HA T'S DESIGNED T O PROTECT, BUT IT I S ALS O A STRATEGIC DECISION T HAT IS I N T HE D ISCRETION OF THE A TTORNEY.

BE THAT A S IT M AY , H OW CAN WE EVER SAY T HA T I T I S INEFF ECTIVE ASSISTANCE O F COUNSEL TO COMPLY WITH THE DEFENDANT'S WISHES THAT HE GO TO TRIAL C ON SI ST EN T W IT H THE RULES AND T HE CONSTITUTION WITHIN THE TIME REQUIRED?

WELL, 3.1 91 I S N OT ESSENTIALLY A CONSTITUT IONAL RULE. IT IS A PROCEDURAL R ULE.

I SAID THE R ULES OR THE CONST ITUTION.HOW CAN IT BE I NE FF EC TIVE ASSISTANCE OF COUNSEL TO COMPLY WITH T HE CLIEN T' S WISHES THAT H E BE T RI ED WITHIN THE PERIOD?

WELL , IT WOULD CLEARLY BE INEFFECTIVE ASSISTANCE OF COUNSEL IF YOU DEMAND SPE ED Y TRI AL AND YOU A RE UNP RE PARE D UNDER WIGGI NS T O T RY T HA T CASE. IF YOU ARE ONLY D EF ENSE I S VOLUNTARY INTOXICATION AND YOU NEED TO I NV ES TI GA TE GUILT PHASE ISSUES AND LIKEWISE NEED TO DO A COMPLETE INVESTIGATION UNDER WIGGINS AND THE A BA GUIDELINES.

BUT W IG GINS DIDN' T CONCE RN A SITUATION WHERE THE DEF ENDANT DEM ANDE D SPEEDY TRIAL.

CORRECT.

I'M TALKING ABOUT THE SITUATION WHERE THE D EFENDANT EMP HA TI CALLY STATES REPEA TEDLY T HAT H E WANTS TO GO TO TRIAL WIT HIN THE PERIOD. HOW CAN IT EVER BE AN I N !!!! INEFFECTIVE ASSISTANCE T O COMPLY WITH T HA T CLI EN T'S DEMANDS?

BECAUSE THAT R IGHT I S WAIVEABLE. THE RIGHT TO DEM AN D S PE ED Y IS A S TRAT EG IC DEC IS IO N. IT IS NOT A RIGHT OF THE DEFENDANT. IT IS W HO LL Y W ITHIN T HE DISCRETION OF THE A TTORNEY.

L ET 'S J US T G O T O A ND EXAMINE WHE TH ER EVE N W ITH T HE TIME CON ST RA IN TS , WHETHER THIS LAW YE R PERFORMED B ELOW T HE STAND AR D THAT WE WOU LD E XP EC T , WHETHER IT IS PRE JU DI CE D. THERE WAS A VOL UNTA RY INT OXICATION D EFEN SE . THE CLAIMS ARE THA T T HE WITNESSES , A DD IT IONA L WITNESSES SHOULD HAVE BEEN CALLED TO C ORROBO RA TE D RUG USE . THEN FINDING THAT THE WITNESSES THAT Y OU N OW SAY THEY SHOULD HAV E C ALLE D O R CUMULATIVE TO THE WITNE SSES THAT WERE PRESENTED SO THAT THERE WAS A STRATEG IC DECISION IN TERMS OF HOW T O PRESENT THE V OL UNTA RY INTOXICATION D EF EN SE BUT D ID NOT TUR N ON - - W E DID N'T HAVE ENOUGH TIME OR WE W OU LD HAVE C ALLE D M ORE W ITNE SS ES. COULD YOU ADDRESS T HAT?

TO BEG IN WITH WE H AVE TO STEP BACK A ND REMEMBER WHAT THE SUPREME COURT OF THE UNITED STATES TELLS US WITH REGARDS TO STRATEGY I N O RD ER TO MAKE A S TR AT EG IC DEC IS IO N YOU HAVE TO HAVE ALL OF T HE INFORMATION T O GO YES I 'M GOING TO PRESENT THESE WITNESSES OR NO. THEY NEVER C ON DU CTED T HE AROPRIATE INVESTIGATION ONA LOT OF THESE WITNESSES , NEVER KNE W THE IR E XI ST EN CE , PEGGY L AR UE W HO DID T ESTI FY THE DEFENSE OR THE INVESTIGATOR OR THE EXPERT NEVER TALKED TO HER. WITH REG AR DS T O THE A CTUA L CLAIM THAT IT W AS C UM ULAT IV E , WE SEE FROM THE JUD GE'S L OWER COURT, T HE T RI AL JUDGE'S ORD ER THAT H E STATE S , LISTEN, T HE E VIDE NC E OF I NTOXICATION IS ALL HEA RS AY . IT IS BASED O NL Y O N M R. WHITFIELD'S STATEMENTS. DR. RENAE WAS R EP EATE DL Y C ROSS-EXAMINED BY THE S TATE'S ATTORNEY WHO THE N USED IT I N H IS C LO SI NG ARGUMENTS WHO SAID THIS I S ALL MR. W HITFIE LD 'S STATEMENTS.

BUT ON THE OTHER HANDWHEN YOU LOOK AT WHAT YOU ACTUALLY PRESENTED AT THE EVIDENTIARY HEARING FROMTHESE WITNESSES, WE H AV E MISS FORD W HO S AI D H E AEARED HIGH AT TIM ES , A ND T HAT HE WAS V IOLE NT W HE N H E AEARED HIG H . MISS L AR UE W HO T ES TI FI ED A ND IND ICATED A T TRI AL T HA T S HE THOUGHT M R. W HITF IELD WAS HIGH. THE OTH ER S N EV ER - - THE OTHER TWO WITNESSES THAT Y OU PRESENTED NEVER A CTUALLY SAW HIM HIGH. SO WHAT ARE Y OU R EA LL Y ADDING T O T HE T ES TI MONY THA T W AS ALREADY PRESE NTED AT TRIAL CONCERNING HIS INTOXICATION AT THE TIME OF THE OFFENSE?

WELL , I W OULD DIS AGRE E WITH REGARDS T O S OM E O F T HE S OF THE O THER W IT NE SS ES . THEIR OBSERVATIONS OF MR. WHITFIELD, FOR EXAMPLE, THE MOTHE R A ND MR. WHITFIELD'S SISTER ARE CONSISTENT WITH WHA T PEG GY LARUE S AW MR. W HI TF IELD , HIS BEHAVIOR RIGHT AFTER . SO --

THESE WIT NESSES , YOU WOULD AGREE, DID NOT SEE H IM RIGHT AFTER THE O FF EN SE ?

CORRECT . BUT WE --

BUT AT THE TIME OF T HE OFFENSE.

THAT'S CORRECT. BUT WE DO HAVE ONE W IT NESS, PEGGY LARUE , R IG HT AFT ER T HE OFF ENSE, AND SHE G IV ES A G REAT DESCRIPTION OF MR. WHI TFIELD OF HOW HE IS ACTING.

SHE C ALLE D - - WAS S HE CALLED OR NOT CALLED?

SHE WAS CAL LE D BY U S B UT SHE W AS ALS O PRE SENTED DURING TRIAL.

I MEAN , EVE N IF , A ND I REALLY DON'T SEE THIS , I MEAN I THINK THE SE LAW YERS , I HAVE TO TELL YOU , DID UNDER THE CIR CUMS TA NC ES , A T REMENDOUS J OB I N G ET TING A 7-5 DEATH RECOMMENDAT ION. HERE IS A P ER SO N W HO S AY S WEEKS BEF OR E , I 'M G OING T O KILL YOU. I'M GOING TO KILL A LL THREE OF YOU B IT CH ES . HE THEN NOT O NL Y G OES A ND COMES I N A ND D OES S OM ETHING THAT MIGHT BE A F RE NZIE D KILLING. HE COMES IN AND H E RAPES O NE OF T HE V IC TI MS A ND T HE N G OES ON. I MEAN, SO THI S I S - - E VE N IF YOU HAD S OM E O TH ER WITNESSES T HA T C OULD T AL K ABOUT THE COCAINE U SE , F IR ST O F ALL RAP E I SN 'T A S PE CI FI C INTENT CRIME, IS IT?

NO, NO , CORRECT.

BUT Y OU STILL HAVE - - YOU'VE GOT FELONY MURDER, DON'T YOU?

IT W AS N OT P RESENT ED T HAT WAY AND IT WAS NOT ARGUE D THAT WAY.

BUT I F - - THE B OTTO M L IN E , I GUESS , IS T HA T Y OU HAV E T O MEET THE SECOND B UR DEN THAT IT WOULD HAVE TO U ND ER MI NE OUR CON FIDENCE I N T HE GUI LT Y VER DICT IF FOR THE FAILU RE OF THESE WITNESSES TO HAV E BEEN PRESENTED, AND I JUS T DON'T SEE FROM THE FAC TS OF THIS C AS E AND I DON 'T K NO W I 'VE EVER SEEN A S UC CE SSFU L VOLUNTARY INTOXIC ATION DEFENSE BUT M AYBE WE DON'T SEE THEM UP H ER E , HOW A DDITIONAL W IT NE SS ES C OULD HAVE EVE R C HA NGED THE C OMPLEX O F T HE - - COM PLECTION OF THE GUILT PHASE. COULD YOU PLEASE JUS T BRIEFLY ADDRESS THAT?

SURE. WITH REGARDS TO THE PREJUDICE I JUST WANT TO MAKE ONE COMMENT WITH REGARDS TO VOLUNTARY INTOXICATION. IT IS I NTERESTING AND THAT'S WHY THIS CASE IS SO INTERESTING. JUDGE WILLIAMS , W HO I S T HE TRIAL ON THAT, JUST PRIOR T O THIS CASE HAD T RIED A VOLUNTARY INT OXICATION D EFENSE WITH S IM IL AR F ACTS , AND GOT, IT W AS FIRST DEG REE MURDER AND GOT A LESSER CHARGE. H E U SE D A T OX IC OLIG IST.

THE JUDGE WHO WAS T HE DEFENSE ATTORNEY?

CORRECT. HAD JUST P RE VIOU SLY C OME OUT OF A VOL I NT OX .

THAT'S WHY HE M AD E A STRATEGIC D ECISION NOT TO CALL THE T OXIC OL OG IS T H E THOUGHT WOULD BE I NCON CLUSIVE.

HE NEVER TESTIFIED TO THAT. AS A MATTER OF FACT , JUDGE WILLIAMS SAYS I DON'T R ECAL L TALKING TO A T OX ICOL OGIS T. HE D OES S TATE I T WOU LD H AVE BEEN HELPFUL.

HIS C O- COUN SEL T ALKED T O ONE, RIGHT?

THAT I S A Q UEST IO N T HA T WE FIND IN DISPUTE. SHE TESTI FIED T HA T SHE - -

THE TRIAL C OU RT RES OL VE D THAT DISPUTE IN THE STATE'S FAVOR?

CORRECT, I N THE ORDER. HOWEVER , B UT - -

I T WAS A F AC T THA T THE TRIAL COURT FOU ND WERE THAT THE CO-CO UNSEL SPO KE T O A TOXICOL OGIST AND THEY S AID THAT THERE WAS NO WAY THEY WERE GOING TO G ET WHA T TH EY WERE LOOKING FOR. THAT THEY WERE BARKING UP THE WRONG TREE?

WELL , I T W AS B ASED MAI NL Y ON T AL KI NG T O F OLKS A ND S MITH-KLEIN. IT WAS SPEAKING TO A TOXICOLOGIST. THERE IS NO PHONE CALL TO A TOXIC OLOGIST AND SHE H AD NO RECOLLECTION .

HOW A BOUT H EL PING U S , YOU ARE TALKI NG B RO AD LY ABO UT THESE VARIOUS THINGS AND ORDINARILY WHAT WE SEE I N A CASE THAT H AS M ERIT , SOMETHING REALLY DRA MA TIC. T HAT IS , T HA T W E H AVE HAD CASES, OF COURSE , W HERE I T HAS BEEN THE F IR ST C AS E THA T A DEFEN SE L AWYE R - - T HE FIRST DEATH PEN ALTY CASE THAT A DEFENSE LAWYER HAS HAD AND THE LAWYER D IDN'T HAVE A C LUE ABO UT D OI NG INVESTIGATION AND D IDN'T DO IT , A ND WE H AV E C AS ES W HE RE WE HAVE G RA NTED R EL IE F I N THOSE SITUATION S . YOU BROUGHT C LA IM S OF INEFFECTIVENESS BOTH DURING THE GUILT A ND THE PEN AL TY PHASE. HOW ABOUT SINGLING OUT F OR US WHAT YOU BELIE VE T O BE THE M OST DRA MA TI C , O KA Y , DEFICIENCY ON T HE P AR T O F COUNSEL HERE AND T HE N B ACK THAT UP W IT H , YOU KNO W , WHERE THE TRI AL JUDGE WEN T WRONG A ND I N R EJ EC TING T HA T CLAIM? Z WHAT'S THE MOST D RA MATI C THING THAT YOU CAN THINK O F HERE O N THI S R EC OR D A ND TEL L US WHY THE JUDGE W AS W RONG IN HIS RULING ON THAT?

SURE. I WOULD THINK THE M OST DRAMATIC ASPECT OF ANY TRIAL IS WHEN YOU HAVE YOUR EXP ER T UP ON DIREC T E XAMINATI ON AND YOU ARE THE TRIAL ATTORNEY AND T HE U LTIM ATE ISSUE OF THE CASE IS W HE TH ER M R. W HITFIELD IS GOING TO BE CONVICTED OF FIRST DEGREE MURDER OR NOT. IS ASKING Y OU R E XP ER T , BAS ED ON EVERYTHING YOU'VE R EAD , DR. RANAE, B ASED O N YOU R OBS ERVATIONS AND YOUR TESTING, CAN YOU GIVE U S A N OPINION WHETHER MR. WHITFIELD C OU LD P ERFO RM THE REQUISITE I NT EN T T O P ERFORM FIRST DEG REE M URDER?

HE STA TES , I DON'T K NOW. I DIDN'T HAVE ENOUGH TIME. I WOULD H AV E L IKED T O H AVE HAD MORE T IME BUT I D IDN'T HAVE ENOUGH TIME AND I WOULD LIKED TO HAVE D ONE M OR E TESTING.I THINK THAT IS VERY DRA MATIC. SO WHEN W E H AV E T HE TESTIMONY OF PEGGY L AR UE TALKING A BOUT BRIGHT EYES CONSISTENT WITH DRUG USE THEJURY IS LOOKING AT THE DEFENSE'S ONLY EXPERT AND HE IS TELLING THE JURY I CAN'T TELL YOU WHETHER H E W AS - - WHETHER HE HAD P RE MED T ATIO N OR NOT. I THINK THAT'S V ERY D RAMATIC.

DON'T WE KNO W D R. THE DOCTOR'S TESTIMONY THAT ONE OF THE PROBLEMS W AS T HE DEFENDANT'S LACK OF COOPERATION WITH HIM?

THE DEFEN DA NT'S L AC K O F COOPERATION PER ME AT E S EVERYTHING, T HE DEMAND FOR SPEEDY WHICH THE ATTORNEY SHOULD HAVE WAIVED AND LIKEWISE AND D R. MAS H A ND DR. FISHER WHO T ES TIFIED. NOW, WHAT WE SHOUL D REM EMBER IS THE LOWER COURT --

COULD YOU ANSWER MY QUESTION FIRST?

SURE . D R. FISHER AND D R. M ASH B OT H TESTIFIED THAT M R. W HI TFIE LD WOULD NOT HAV E B EEN ABL E TO ACT R AT IONA LL Y A T THA T T IM E AND ABLE TO A ID I N HIS D EFENSE BECAUSE OF HIS SEVERE CRACK COCAINE PRO BLEM , HIS SEVERE PAR AN OI A A ND H IS FEAR -- S EVERE P OSTTRA UMATIC S TRESS DISORDER A ND H E H AS BRAIN DAMAGE.

DID THE DOC TO R T ESTIFY THAT THE PROBLEM WITH HIS TESTIMONY WAS THE D EFENDANT'S LACK OF COOPERATION? HE COULDN'T SUFFICIENTLY FORM AN OPI NI ON BECAU SE OF THE DEFENDANT'S LACK OF COOPERATION?YES OR NO?

NO , I W OULD THINK THAT A BETTER WAY TO CHARA CT ER IZ E IT IS THAT THE DEF ENDANT WAS UNCOOPERATIVE, BUT IF HE HAD MORE T IM E H E WOU LD H AVE B EE N ABLE TO GET M R. WHI TFIE LD T O COOPERATE MORE. THESE 91 DAY S WE RE N OT PRODUCTIVE 91 D AYS , E IT HE R . DR. --

HOW DO YOU R EACH THA T CONCLUSION THAT YOU JUST MADE THAT IF THERE HAD B EEN MORE TIME HE COULD HAVE GOTTEN HIM TO C OO PERATE W HE N WE HAVE EVIDENCE THAT THE DEFENDANT IS S AYIN G T HAT I W ANT I T , I W AN T T HI S B EC AUSE I WAS TRY IN G T O G ET A POSSIBLE MISTRIAL , S O H OW - - B ASED ON THAT , H OW C AN Y OU SAY THAT THE DEFENDANT WOULD HAVE G IV EN M ORE TIM E , COOPERATED?

I WOULD SAY BAS ED O N M R. WHITFIELD'S STRAT EG Y, I T HASN'T WORKED S O F AR . IT HASN'T , AND I T I S BAD STRATEGY AND I DON'T THINK ANY LAWYER WOULD ACT THA T WAY WITH REGARDS TO S TRATEG Y . IT WOULD BE UNE TH IC AL F OR A LAWYER TO ACT T HA T WAY U ND ER STRATEGY.

THIS IS T HE DEFEN DA NT'S OWN S TRATEGY.

CORRECT. AND IT WAS BAD STR AT EG Y.

AND SO IT SEE MS T O M E THAT YOUR A RGUMENT G ETS BACK TO THE QUE STION O F S HO UL D THE TRIAL J UDGE O R ARE YOU ADVOCATING THAT THE TRIAL JUDGE SHOULD HAVE A T T HE TIME M R. W HI TFIE LD R EQUE ST ED THE SPE ED Y T RI AL HAVE HAD S OME KIND OF COM IN G Q EE WIT H HIM TO MAKE SURE H E - - COLLO QUY WITH HIM?

HE DID HAVE A C OL LO QUY. MR. WHITFIELD WANTED TO FIRE HIS ATTORNEYS. HE PASSED HIS C OMPE TE NC EY TEST. THE ATTORNEYS P AS SE D A NELSON BUT M R. WHI TF IELD FAILED THE F AR ETTA H EARI NG . THE COURT SAID YOU ARE NOT C OMPETENT TO REP RE SENT YOURSELF. MEANING YOU ARE NOT COMPETENT TO MAKE STR ATEGIC DECISIONS F OR YOU RS EL F A T THE TRIAL AND YOU NEED THE AID OF THE ATT ORNEYS.

YOU ARE IN YOUR R EBUT TAL , MR. CANNON.

I SEE. I WILL SIT D OW N .

GOOD MORNING. MAY IT PLEASE THI S H ON ORAB LE COURT. MY NAME I S CATHE RINE B LA NCO. I A M WIT H THE A TT ORNE Y GENERAL'S OFFICE REPRESENTING THE STATE OF FLORIDA IN THIS POS T CONVICTION CASE.I WOULD L IKE TO J US T B RIEFLY EMP HASIZE SOMETHING T HAT' S VERY IMPORTANT. MR. CANNON MENTIONED IT DURING HIS ARGUMENT WHEN H E WAS ADDRESSING THE U NITED STATES SUPREME COURT PRECEDENT , AND T HA T I S A QUOTE FROM THE W IGGI NS C ASE AND IT IS SO IMPORTA NT THA T I MUST QUOTE IT VER BA TI M . AND THIS IS IN W IGGI NS , UNITED STATES SUPREME COURT EMPHASIZING THAT S TRIC KL AN D DOES NOT REQUIRE COUNSEL TO INVESTIGATE EVERY CONCEIVEABLE LINE O F MITIGATING EVIDENCE, NO MATTER HOW U NL IKEL Y T HE EFFORT WOULD BE TO A SS IS T THE DEFENDANT IN SENTENCING. N OR DOE S STRIC KLAN D R EQUI RE DEFENSE COUNSEL T O P RE SENT EVIDENCE IN EVE RY SINGLE CASE. BOTH CONCLUSIONS WOULD ENT ER NEAR WITH THE CONSTITUTIONALL Y PROTE CTED INDEPENDENCE OF COUNS EL AT THE HEART OF STRICKLAND AND THAT'S IN THE W IGGINS CASE , WHICH, OF COURSE , T HE DEFENSE RELIES O N QUITE FREQUENTLY.

WELL, CAN WE THEN DISTINGUISH BETWEEN, ANDTHIS IS WHAT' S I MP ORTANT TO ME, WHAT EVE N W IT H H IN DS IG HT REALLY WOULD HAVE STILL B EEN A STR AT EGIC D EC IS IO N A ND WHAT MIGHT BE A R ESUL T O F HAV ING THIS RUS H T O T RI AL ? A GAIN , I T LOO KS T O M E LIKE A LOT WAS A CT UALLY C ONSIDERED, BUT COULD Y OU TALK A BO UT WHETHER THE - - J US T I F W E LOOK AT T HE PRE JU DICE P RONG , LET'S JUST, YOU K NO W --

FOCUS ON PRE JU DI CE WHAT WOULD HAVE BEEN DIFFERENT?

WHETHER IT U ND ERMINE S OR SHOULD UND ERMI NE OUR CONFIDENCE IN THE OUTCOME.

CERTAINLY NOTHING DURING EITHER THE GUILT PHASE O R THE PENALTY PHASE. YOU HAVE BOTH DEF EN SE COUNSEL AT THE EVIDENT IA RY HEARING T ESTIFYING T HA T T HE Y D EPOSED ALL OF THE WIT NESSES THAT THEY NEEDED TO DEPOSE. THEY WERE R EADY , CER TA INLY FOR THE G UI LT P HA SE A ND I 'L L ADDRESS THE PENALTY SUBSEQUENTLY BUT CERTAINLYFOR THE GUILT PHASE THEREWERE NO WITNESSES THAT WERE NOT D EPOSED. MOST IMP ORTANTLY I F COU NS EL H AS THE S TRAT EGIC A BILI TY T O WAIVE SPEEDY TRIAL, WHICH HE CERTAINLY DOES, A S MR. CANNON HAS EMPHASI ZE D THIS MORNING THEN HE CERTAINLY CAN ASS ERT IT IN ACCORDANCE WITH HIS C LIEN T' S STEADFAST D EMANDS. THIS WAS A VER Y STRAIGH TFORWARD CASE. THERE WAS --

IS IT S OM ET HI NG THAT, YOU KNOW, BECAUSE IT IS NOT THE CONSTITUTIONAL RIGHT BUT T HE FLORIDA RULE RIGHT. IS THAT S OMETHING THA T BELONGS TO T HE CLI EN T O R I S IT - - C AN THE ATT ORNEY D O IT ONE WAY OR ANOTHER W ITHOUT THE CLI EN T' S A ROVA L?

IN THI S CAS E , I T I S N OT D EFIN ED AS A P ER SO NA L FUNDAMENTAL RIGHT OF THECLIENT. THOSE RIGHTS THAT WERE RECOGNIZED IN FLORIDA VERSUS NIXON DISCUSSED ORIGINALLY, I THI NK , B Y T HE U NITE D STATES SUPREME COURT AND THOSE, OF COURSE , T HE PERSONAL RIGHTS THAT THE DEFENDANT MUST CONSENT TO ARE WHETHER TO ENTER A G UILTY PLEA, T O WAIVE A J URY AND WHETHER TO TESTIFY ON ITS O WN BEHALF OR WHETHER T O TAKE AN A EAL S O THIS IS NOT ONE OF THOSE RIGHTS. THIS IS, IN FAC T , A R IG HT THAT IS WITHI N THE R EA LM O F STRATEGY, A ND WE H AVE O N T HE R ECORD DURING THE TIME O F TRIAL , TRIAL C OU NS EL ANNOUNCING, I WIL L F IL E A DEMAND FOR SPEEDY TRIAL I F I CAN CONTINUE TO T AK E DEPOSITIONS, IF I CAN GET THE STATE 'S COO PERA TION , A ND WITH THAT UND ERSTAN DI NG , BECAUSE IT IS SO IMPORTANT FOR ME TO H AV E - - T O BUI LD ESSENTIALLY AN ALLIANCE W ITH HIS CLIENT, TO H AV E A G OO D WORKING RELATIO NSHIP WIT H HIS C LIENT, T RIAL C OU NSEL A T THE TIME OF THIS T RI AL ANNOUNCES ON THE RECORD THAT HE HAS MADE A S TR ATEGIC DECISION ACKNOWLEDGING THAT HE CAN -- HE C ERTA IN LY CAN WAIVE IT, B UT I NSTE AD , I N FACT, D OE S , I N F AC T , F IL E HIS DEMAND FOR SPEED Y T RI AL .

T HEN THE D EP OS ITIO N CONTINUED ON THEN?

ABSOLUTELY , D EP OS ITIONS C ONTINUED ON AND NOT O NL Y THAT, YOUR HONOR, BUT OCCASIONA LLY THIS COURT WILL SEE CASES THAT I NV OL VE COMPLAINTS ABOUT THE STATE THAT SOMEHOW T HE STATE W AS N OT AS F OR THCOMI NG AS T HE Y SHOULD HAVE BEEN IN A PARTI CULAR C AS E A ND I N THI S CASE THERE ARE CERTAINLY NO PROBLEMS IN C ONNECTION WITHTHE S TA TE'S R OL E I N ACCOMMODATING THIS DEFENDANT'S DEMAND , IN RESPONDING TO T HE T RIAL COURT'S DIRECTIVE THAT YOU WILL MAKE SURE THAT THOSE WITNESSES ARE A VA IL ABLE , THAT THIS CASE IS GOING TO BE FAST TRA CKED . IT WILL BE TRIED W ITHIN 6 0 DAYS, AND , I ND EED , I T W AS AND CERTAINLY WE SEE NO COMPLAINTS RAISED.

NOW, THE ONE T HAT Y OU SAID YOU WERE GOING TO G ET TO THE PENALTY PHASE.

YES, YOUR HONOR.

IT WAS A 7 -5 .

R EMARKABLE, WAS N'T THAT?

YOU SHOULD L OO K A T I T THAT WAY O R S AY O H, M Y GOODNESS IT WAS THAT CLO SE BECAUSE T HIS D ICK TES TIMONY HAD SOME VERY , VERY SIGNIFICANT - - THI S PARTICULAR DEFENDANT HADVERY, VERY S IG NI FICA NT BACKGROUND ISSUES. I WAS STRUCK BY T HE D RA MATI C T ESTIMONY PRE SE NTED B Y CCR OF M R. A TK IN S WHO H AD ACTUALLY COUNSELED THE FAMILY AND SAI D T HA T T HI S WAS THE M OS T D YS FUNC TION AL FAMILY HE H AD EVER SEEN I N ALL OF HIS YEARS O F COUNSELING AND THEN I DIDN'T GET A SENSE BUT THE E MP LOYE R AARENTLY HE ACTUALLY THIS MAN WAS ACT UALL Y EMPLOYED AROUND THE PERIO D OF TIM E W HICH IS UNUSUAL, YOU K NO W , PEOPLE ARE MORE L IKEL Y THA T ARE THIS KIND OF SIT UA TI ON NOT TO BE , AND C OU LD H AV E TESTIFIED TO T HA T , S O A S T O THO SE TWO WITNESSES , COU LD YOU TELL US , E SP EC IA LL Y THE EMPLOYER, W HE THER - - WHA T THEIR TESTIMONY WAS AND WAS THAT EITHER A STR ATEG IC DECISION NOT TO CAL L A NY ON E FOR T HE E MP LO YM ENT O R W AS I T A -- JUS T A QUESTION OF T IM E OR LACK OF COO PERA TI ON ?

NO, ACTUA LLY W ITH RESPECT TO T HE EMP LO YER , M R. WILLIAMS , J UD GE WIL LIAM S NOW, TESTIFIED THA T H E - - H E MET WITH M R. P ET ERSO N A ND DID NOT CALL H IM . DECIDED NOT TO CALL HIM.

SO HE KNEW ABOUT THIS?

YES, HE KNEW A BOUT HIM. NOW, THE REA SONA BLENESS OF THAT STRATEGY I S BOR NE O UT BY THE FACT OF , W EL L , WHA T IS MR. PETERSO N TES TI FI ED T O AT THE EVIDENTIARY HEA RING. THAT THIS WAS A GOOD W OR KER. I NEVER HAD ANY PROBL EM S WITH HIM. HE SHOWED UP ON TIME. WELL, THA T' S O OS ED T O A N A LLEGATION AT THE TIME O F TRIAL THAT THIS D EF EN DA NT USES COCAINE W IT H S UC H FREQUENCY THAT HE IS REALLY UNABLE T O COP E I N S OC IETY . N OW, MR. ATK IN S , L ET'S T AL K ABOUT MR. ATK IN S. MR. ATKINS IS A V ER Y PROMINENT MEMBER O F T HE SARASOTA COMMUNITY. HE WAS THE FIRST A FRICAN-AMERICAN ELECTED OFFICIAL THERE. BOTH TRIAL A TT ORNEYS WERE FAMILIAR WITH MR. ATKINS B UT UNAWARE OF HIS CONNECTION WITH THIS CASE. NOW, HIS C ON NE CTION WIT H MR. WHITFIELD GOES BACK T O 1983-84. AND I T E ND S - - AND H IS CON NECTION IS HE I S WHAT' S CALLED AN OUTREACH COU NS EL OR AT A STO RE F RO NT , A AREN TL Y A PRO GRAM F OR F AM ILIES THAT THEY CAN VOL UNTEER O R C AN ESS ENTIALLY, I GUESS, B E COURT O RDERED TO ATT END. NOW , CCR H AS REL IE D I N THE IR REPRE SENTATIONS AND THE IR BRIEFS, T HAT THIS W AS A COURT ORDERED AOI NT MENT T O THE STORE FRONT O R T O , I BELIEVE IT IS F LI P , F AMIL IES , LIFE , INV ES TIGA TI ON P ROGR AM . BUT IN ANY E VE NT , T HA T T HE FAMILY WAS ORDERED I NTO T HI S P ROGRAM SOMETIME IN THE EARLY 80s. WELL, A ND THE Y R EP RE SE NT THAT, WELL , THE RE FORE , T HE COURT RECORDS WOULD H AV E CONFIRMED THIS AND THEY SAY THEY WOULD GET - - F RO M THE TESTIMONY OF THE DEFEN DA NT 'S MOTHER, WHO W AS I NT ER VI EW ED AT THE TIME OF T RIAL , W HO WAS D EP OS ED A ND L IS TE D A S A S TATE'S WITNESS. SHE SHOWED UP FOR TRIAL IN WHAT DEFENSE COUNSEL BELIEVED WAS AN INT OXIC ATED STATE AND NO MENTION WAS EVER MADE OF F RE D S TRAN LY A T KINS. NOW , A CT UA L JUV EN ILE R ECORDS WERE NEVER INTRO DUCED AT T HE POST CONVICTION HEARING. WHAT WE HAVE IS T HE TESTIMONY OF MR. A DKIN S W HO SAYS I THINK THE Y WER E C OU RT ORDERED.I THI NK THEY WERE C OURT O RDERED, BUT C CR S TILL DOESN'T HAVE THOSE REC ORDS CONFIRMING THAT.SO WHAT D EFEN SE C OUNSEL CERTAINLY AT THE TIME OF TRIAL WAS RELYING ON W OULD BE THE INTERVIEWS WITH THE MOTHER, THE INTERVI EWS WITH THE SISTER , T RYING T O G ET BACKG ROUND INFORMATION ONTHIS. REMEMBER, THIS IS A 1 99 5 MURDE R .

SO E XACT LY 1 2 Y EARS EARLIER THERE WAS A S IN GLE OUT REACH C OU NSELOR T HA T COULD HAVE BEEN E SSENTIALLY A GOOD WITNESS. WELL, Y OU KNOW , I T IS A LMOST AS IF YOU ARE SAYING UNLES S I HAVE THE L ATE JOHNNIE COCHRAN, YOU KNOW , AVAIL ABLE TO HAVE R EPRESENTED THIS D EFENDANT, WHICH H E ACTUALLY ASKED FOR OR MENTIONED AT THE TIME OF THE T RI AL , AND A N EXPERT W ITNESS OF T HE CALIBER OF D R. H ENRY L EE FROM NEW ENGLAND, THA T T HE C ALIBER OF THE WITNESS IS GOING TO S OM EH OW B E CRI TICA L , A ND T HA T' S C ERTAINLY NOT A QUE STION FOR CONSIDERATION.

A RE THERE S CHOO L R EC ORDS , M ENTAL H EA LTH R EC ORDS T HA T WERE OBTAINED IN T HE ORIGINAL TRIAL AND INTRODUCED? W HAT WAS THE S TA TUS O F T HA T CHECKING OUT BACK GROU ND INFORMATION?

WE HAV E A CT UALL Y A VER Y LENGTHY, A 1 2-PA GE SEN TENCING MEMO T HAT' S F IL ED AT THE TIME OF T RIAL , YO UR HONORS, A ND DEFENSE COUNSEL IN THAT AND I T A EA RS I N THE RECORD, 205 9 THR OUGH 2061, I B EL IEVE , OUT LI NI NG WHA T D R. R INEE R PRI ME LET TE R -- PRI MARI LY R EVIE WS . HE REFERS TO POLICE REC ORDS , HOSPITAL RECORDS, RECORDS SURROUNDING A S HO OTIN G T HA T THE DEFENDANT WAS SHOOT IN APRIL OF 1 99 5. THEY HAVE INT ER VI EWS. HE HAS ALS O D ONE I NTER VI EW S WITH FAMILY MEMBERS A ND S O THE - - W IT H RESPECT T O SCHOOL RECORDS, INT ERESTINGLY E NO UG H , FRE D ATKINS, THE W IT NE SS W HO T ESTIFIED AT THE E VI DENTIARY HEARING AT PAG E 1 26 2 O F THE POST CONVI CT ION RECOR D , MR. A TKINS S TATES : I T RIED TO GET I NFORMATION FROM THE SCHOOLS.I TRIED TO FIND OLD PRINCIPALS AND T EACHERS T HAT MIGHT HAVE RESPONDED BUT YOU KNOW THEY HAVE BAS ICALLY N OT MAINTAINED ANY OF THE INFORMA TION FROM MY EXPERIENCE WITH HIM. SO THE BOTTOM LINE IS , T HE RE WAS NO WAY FOR A NY REASO NABLE C OUNSEL TO DISCOVER THE N AM E O F F RE D STANLEY ATK INS F ROM REVIEWING THE MATERIALS THAT THEY HAD AVAILABLE TO THEM AT T HE T IM E AND UNL ES S T HE DEFENDA NT'S FAMILY WAS GOING TO BE F OR TH CO MI NG W IT H INFORMATION FROM AN OUTREACH COUNSELOR THAT THEY HAD KNOWN 1 2 Y EARS EARLI ER , A ND INTER ESTINGLY ENOUGH, MR. ATKINS WAS VER Y G EN ER OUS TO THIS P ARTICULAR DEFENDANT.HE ACTUALLY O PE NED HIS H OM E TO THE DEFENDANT AND GAVE HIM AN OOR TUNITY T O LIV E WITH H IS FAM IL Y. AFTER ABOUT SIX MON THS , AAR ENTLY THE DEFENDANT WAS BRINGING HOME UND ESIR EABL E OTHER YOUNG M EN INTO THE HOME AND M R. ATK IN S G AVE HIM A CHOICE. YOU ABIDE BY THE R ULES I N T HIS A ARENTLY A V ER Y STABLE HOME OR YOU HAVE T O BELIEVE AND MR. W HITFIE LD ELECTED TO LEAVE THAT S TABLE ENVIRONMENT.SO IT IS N OT A P AR TICU LARL Y IM PASSIO NE D P LE A T O S AY T HA T EVERYTHING IN THIS CAS E WOULD HAVE B EEN DIF FERENT HAD MR. ATKIN S BEE N DISCOVERED AND HE S HOULD HAVE B EEN DIS CO VE RED. YOU HAVE ATTORNEYS THAT WOULD HAVE USED MR. A TK IN S THAT KNEW ABOUT HIM , C HA RLIE ANN S COTT SAY S SHE DOE SN 'T RECALL SEEING HIS NAME I N JUVENILE RECORDS. CERTAINLY THAT WOULD HAVE ALERTED HER TO HIS P RE SENC E A ND THEY CERTAINLY WOULD HAVE USED HIM. WE D ON'T D ISPU TE THAT , BUT WHAT YOU HAVE AT THE TIME O F TRIAL IS A D EFENSE R EL YING IN PART ON A N IMP OV ER IS H ED BACKGROUND AND WHAT I S W HA T MR. ATKINS CAN TESTIFY TO. THE T RIAL COURT DOES , I N FACT, A DDRESS THE I MPOV ER IS H ED BACKGROUND, THE CRACK COCAINE ADDICTION T HA T'S PROFFERED AND DOES F IND HE CAME FROM A N I MP OV ER ISH ED BACKG ROUND AND I G IV E T HI S CONSIDERABLE RATE.NOW , J US T S UOSE THAT THE IMPOV ERISH ED B AC KGRO UN D T HA T HE HAS V IA S TA NL EY A TKIN S AGAINST THE VER Y P OW ER FU L AND SIGNIFI CA NT A GG RAVA TE - - AGGRAVATING FACTORS I N T HIS CASE. HE THREATENS THE V IC TIMS A FEW WEEKS BEFORE THE M URDER. HE USE S A MEANS O F ENTRY T O GET INTO H ER H OM E , HE RAP ES ONE VIC TI M A T K NIFE POIN T IN ORDER TO DO THAT H E THREATENS T HE V IC TIM' S SLEEPING ONE-YEAR-OLD CHILD NEXT TO HER AND HE M AK ES A MOTION AS IF A STA BB IN G MOTION WITH HIS H AND WITH THE KNIFE. HE GOES TO THE VICTIM' S R OO M NEXT DOOR A ND STABS H ER 2 1 TIMES SO THIS WAS N OT A N UNKNOWN V ICTIM T O HIM. THIS WAS A VICTIM W HO W AS SOUGHT OUT BY THIS D EFEN DANT WHO H E PUR R SEE FE D WAS P ERHAPS - - PERCE IVED AS A N OBSTACLE FOR HIM REU NI TING WITH HIS FORMER GIRLF RIEND. HE STABS HER IN T HE N EC K, I N THE HEART, HE STABS H ER I N BOTH LUNGS. S HE STUMB LES OUT AND S HE IDENTIFIES ERNEST S TABB ED ME. I'M DYING A ND H E S TA BS HAD WOMAN WITH HER FIV E CHI LD REN SLEEPING IN THE BEDROOM W ITH HER. SO HE IS NOT A P ARTI CU LA RL Y SYMPATHETIC DEFENDANT, YOUR HONOR.

AND DID THE DEF EN DANT CONFESS TO H AV IN G COM MI TTED T HE ACT S THA T L ED T O T HE VICTIM'S DEATH?

HE DID SEV ER AL T IMES , YOUR HONOR. MR. CAN NON THIS MORNING HAS TALKED ABOUT PEG GY L AR UE , W HO I S THE S ISTE R O F T HE R APE VICTIM , AND PEG GY LAR UE SAW THE DEFENDANT ON THAT MORNING. SHE TESTIFIED NOT O NLY TO HIS P HY SI CAL C ON DITION , H IS W ILD A EARANCE, HIS C RA ZE D EYES AND FAST TALKING BUT ALSO THE FACT THAT HE GOES THAT MORNING AND TELLS P EGGY LARUE, I KILLED HER. I KILLED B IG GIR L W HO W AS THE STREET NAME FOR THE VICTIM IN THIS CASE.

LAR UE W AS C AL LE D B Y T HE STATE?

SHE WAS CALLED BY THE STATE AND SHE WAS CROSS-EXAMINED BY THE DEFENSE WITH REGARD TO THOSE PHYSICAL MAN IFESTATIONS OF THE D EFENDANT.

WHAT W AS T HE TIM E F RAME BETWEEN THE TIME L AR UE ACT UALLY SAW THE DEF EN DA NT AND THE MUR DE R TOO K PLA CE?

IT W OULD HAVE B EE N W IT HIN A T WO -H OU R WIN DOW. IT W AS ARO XI MA TELY 7 :00 A.M. SHE SAID T HAT THE DEFENDANT SHOWED UP ON HER DOORSTEP AND HE TELLS HER, I STABBED THE G IRL AND I STABBED H ER 1 8 T IM ES . NOW , T HA T' S R EM AR KABL EY CLOSE T O T HE 2 1 T IM ES T HA T THE MEDICAL EXAMINER FOUND. NOT ONLY THAT , B UT H E T HE N HAS HAD THE W HERE WITH AL T O HAVE CLEANED UP , C HANG ED CLOTHES AND HE DIS CA RD ED THE MURDER WEAPON TOP O F A R OO F AND WHEN HE IS A RE HEND ED BY LAW E NF OR CEMENT T HE F IRST THING HE SAYS IS I'M HERE , I DID IT AND HE T AK ES LAW ENFORCEMENT TO THE LOCATION OF THE MURDER WEAPON S O VER Y CONSCIOUS .

DID HE CONFE SS TO T HE RAPE ALSO?

HE DID N OT, A ND I NTERESTINGLY ENOUGH, T HE DEF ENDANT A SS ER TS T O T HE DOCTOR, YOU KNOW , IF I D ON'T HAVE ENOUGH TIME, IF MY ATTORNEYS DON'T HAVE ENOUGH TIME TO PREPARE THIS C ASE , NEITHER WIL L THE STATE A ND THAT ACTUAL I PRO VED TO B E Q UITE ACCURATE BECAUSE THE STATE ON THE RECORD ANNOUNCES THEY WILL NOT H AV E DNA E VIDENCE IN THIS CASE BECAUSE OF THE TIME CONSTRAINTS BY THE DEFENDANT'S DEMAND FOR SPEEDY TRIAL AND THEY DID NOT HAVE DNA. WHAT THEY HAD W AS BLOOD EVIDENCE THAT LINKED THE BLOOD TYPE.

LET ME G O B AC K O N ATK IN S . WHA T DOES T HE R EC OR D R EF LECT HOW W E N OW K NO W A BO UT T HAT WITNESS?

I DON'T KNOW THAT IT D OES , YOUR HONOR . P RESUMABLY IT I S BECAUSE WITH THE LUXUR Y O F TIM E Y OU HAVE MOR E O OR TUNI TI ES T O SAY, WELL , LET'S G O B AC K T O THE YEAR BEFORE THAT AND THE YEAR BEFORE THAT AND THE YEAR BEFORE THAT. MR. CANNON MAY BE ABLE TO SPEAK AND SAY , WELL , W E FOUND MR. A TKIN S , Y OU K NO W , AFTER TALKING WIT H M Y CLIENT.

THAT'S N OT I N THE R ECORD?

IT DOE SN'T SHOW H OW H E WAS A CTUALLY DISCOVERED. WHAT IT DOES IS YOU HAV E TESTIMONY FROM THE MOTHER OF THE DEFENDANT WHO SAYS THA T MR. ATKINS W AS THE IR OUTREACH COUNSELOR AND THAT SHE BELIEVED IT WAS COURT ORD ERED. THIS D EFENDANT'S MOTHER HAS SIX C HILDREN BY I BEL IE VE THREE D IFFERENT FATHERS . SO THERE ARE M UL TI PL E LAS T NAMES AND T HE DEFENDANT'S MOTHER HAS BEE N M AR RIED SEVERAL TIMES, T OO , S O SHE IS REFERRED TO IN THE R ECOR D BY VARIOUS LAST NAM ES S O ACT UALLY HOW ABOUT A TK INS WAS DISCOVERED I DON'T BELIEVE IS REF LE CT ED I N THE RECORD IN LIGHT OF THE FAC T THAT THERE WERE NO JUVENILE RECORDS THAT ARE O FF ERED .

W HA T WAS - - MR. WHI TF IE LD S OUNDS LIKE HE W AS S OM EWHAT OF A S OP HIST ICATED DEFEN DA NT THEN. HE WAS MAY BE , HIS C OMPE TENC E IS MARGINAL. WHAT WAS T HE PRI OR , H IS P RIOR CONTACT WITH THE CRIMINAL JUSTICE SYSTEM ?

HE H AS SEV ERAL P RIOR VIOLENT FELONY OFFEN SES , YOUR HONOR.

OVER WHAT PERIOD O F TIME?

FROM ' 91 P RI MA RILY , F RO M 1991 AND T HI S M URDER IS 1995.

AND H OW OLD A T T HE T IME OF THIS MUR DER? WAS M R. WHI TFIELD?

I BELIEVE H E W AS , W EL L , HE WAS BORN IN 1 967. I DIDN'T KNOW I WAS G OING TO HAVE TO DO MATH , YO UR H ON OR.

S O CRI MI NA L A CT IVIT Y O VE R H IS THROU GH OUT HIS 20S ?

CERTAINLY. AND THERE WERE CRIMES OF VIOLENCE, ONE OF THE COMPLAINTS WAS THEY WERECRIMES OF VIOLENCE A GA INST FEMALE VICTIMS. AND T HA T S OM EHOW THAT T HE STATE SHOULD NOT HAVE B EEN ALLOWED T O R ESPO ND T O T HA T F ACT WHICH IS A M ATTE R OF FACT. HE WAS VERY ABUSI VE TO FEMALE VICTIMS. AS A MATTER OF FACT DURINGTHE PENALTY PHASE I T WAS ESTABLISHED THAT HIS E X- WI FE , HAIR YET MILLER , WHO AGA IN THEY HAVE EXPRE SSED A CONCERN THAT SHE SHOULD H AVE BEEN CALLED BUT S HE WAS THE VICTIM OF A P RI OR VIO LENT AGGRAVATED BATTERY. TWO AGG RA VATED BAT TERY CONVICTIONS THAT WERE PLEA BARGAINED DOWN. BOTH OF T HEM WERE S EX UA L BATTERY CONVICTIONS A ND THE JURY DIDN'T KNOW IT AND THE TRIAL JUDGE DID NOT REL Y ON IT BUT S IMIL AR C IR CUMSTANCES WITH TRYING TO GET I NS ID E OF THE HOME IN THE MIDDLE OF THE NIGHT, K NO CKING ON THE EX-WIFE'S W IN DO W , SHE L ET HIM IN A ND F OR TU NA TE LY S HELIVED TO REGRET IT. B UT CER TA INLY A MEA N A S A SNAKE DEFENDANT. VERY VIOLENT. A HIS TORY OF VIO LENC E , AND VERY D ELIBER AT IV E A CT IONS A ND A D EFENDANT T HA T W AS REPRESENTED BY TWO EXP ERIENCED TRI AL COU NSEL. BETWEEN THE TWO OF THE M T HE Y HAD ALMOST 20 Y EARS OF EXPERIENCE. EACH OF THEM HAD D ON E SIGNIFICANT FELONY CASES. KNEW THE R ES PONS IBIL IT Y O F CAPITAL DEF EN DANTS. TOOK THIS CASE T O TRIAL AFTER DEPOSING ALL O F THE WITNESSES A ND T ES TI FI ED THA T THEY HAD DEPOSED ALL O F T HE WITNESSES THAT THEY N EE DE D TO. IT WAS NOT A DIFFICU LT CASE. THE STATE DURING THE G UI LT PHASE C ALLED 1 5 WITNE SS ES. THE TWO PRIMARY FAC T WITNESS ES WOULD BE, OF COURSE, THE RAP E V IC TI M A ND Y OU ALS O HAV E W ITH R ESPECT FROM THE DEFENSE P ER SP EC TI VE A PRI MARY F ACT W IT NE SS , THE P EGGY L AR UE . T HE REST OF THE O FF ICERS WHO TESTIFIED WITH REGARD TO THE STATEMENTS MADE BY THE DEFENDANT AND A LSO THE DEFENDANT'S AEARANCE, SOMEOF THE STATEMENTS WER E EXCLUDED BASED O N P OS T MIRANDA REQUESTS F OR C OU NSEL BUT WHEN THE DEFENDA NT I S ARR ESTED HE IS R EC ITIN G THE MIRANDA.HE FINISHES R ECIT IN G T HE MIRANDA WARNINGS. SO HE WAS A VER Y S HREW D A S A FOX IN A LOT OF W AYS , AND QUINN DENT ALLEY WITH RESPECT TO - - C OI NCID ENTA LL Y THI S CASE W AS T RI ED T HE S AM E WEEK THAT YOU A LL E NTERED A CASE OF J OHN L ANDR Y I N W HI CH A FIRST D EGRE E M UR DER DEFENDANT WAS ENTITLED TO OUT RIGHT DIS CH AR GE ON S TATE CASES BASED ON SPEED Y T RI AL VIOLATION SO CERTAINLY THE TRIAL C OU RT 'S C ONCE RN A ND ATTEMPTINGS T O M AK E EVE RY EFFORT TO ACCOMMODA TE THE DEFENDANT'S REQUEST AND TO HONOR T RIAL COU NS EL 'S DEM AND F OR SPE ED Y TRI AL A ND T O ENFORCE THE CLI ENTS O BVIO US , IN CY ST ENT - - I NS ISTE NT DEM ANDS BUT I N LIG HT O F T HE FACT THAT TRIAL COUNSEL WAS , IN FACT, ABLE TO PREPARE F OR TRIAL IN TIME WITHIN THE SPEEDY TRIAL C ON ST RA IN TS , N O D EFICIENCY H AS B EE N DMO N STRAIGHTED NOR ANY P REJU DI CE AND CER TAINLY BOTH PRO NG S UNDER STRICKLAND ARE REQUIRED. THANK YOU, YOUR HONOR.

THANK YOU.

R EBUT TA L ?

YES, YOUR H ONOR. JUST QUICKLY. M R. ATKINS I S SOM EO NE WHO WAS ACT UALLY KNO WN B Y DR. RANAE AT TRI AL A ND MENTIONED HIM N OT BY N AM E BUT DURING C ROSS E XAMI NATION BY DR. M ORELAN D , P AG E 1 62 3 O F THE T RI AL R EC OR D , HE ANSWERS, YES, SHE S AI D , T HIS IS TALKING ABOUT THE MOTHER. SHE WAS UNA WARE OF I T BUT THIS MOTHER HAS B EEN A PERSON THAT HAS R EA LLY N EVER BEEN AROUND. SHE IS MOST OF THE T IM E SHE IS INTOXICATED , MOS T O F THE TIME I HAVE K NOWLEDGE OF HER SHE IS DRINKING EVE N W HEN SHE COMES T O SEE HER COUNSELOR SHE IS DRINKING HER SON'S C OU NS ELOR. THA T'S MR. ATKINS. THAT'S THE ONL Y COU NS ELOR THEY'VE HAD A ND T HE D OC TOR K NEW ABOUT THAT S O T HA T EVIDENCE WAS THERE. THEY JUST DIDN'T HAVE THE TIME. WHEN I M AD E A - -

LET M E C LA RI FY . IS THERE A NYWHER E ELSE ON THE RECORD IN THE POST CONVICTION WHERE YOUC LARIFIED WITH THE DOCTOR THAT THAT'S WHO THE COUNSELOR THAT HE WAS REFERRING TO WAS?

NO , N O W HERE ELS E BUT THAT WAS THE ONL Y COU NSEL OR HE HAD.

SO IS T HE RE ANYTHING IN THE RECORD THAT SHOWS H OW YOU O BT AINE D M R. A TKIN S ' N AME? IN THE REC OR D? NOT OF YOU R O WN KNOWL ED GE ?

YOU MEAN FRO M POS T CONVICTION?

YES.

JUST A PRO PE R INVESTIGATION.

WELL, BUT I D ON 'T K NO W THAT THA T'S E NOUG H TO G ET YOU THROUGH A HUR DL E , BECAUSE JUST BECAUSE THERE IS ANOTHER WITNESS AND WE DON'T KNOW IF I T W AS - - I F HIS NAME IS I N T HE REC OR DS , CLEARLY T HEY WEREN'T - - I T WASN'T SOM EBODY T HA T T HE DEFENDANT SPECIFI CALLY TOL D T HE DEFENSE LAWYE RS A BO UT , UNLIKE SOME OF THE OTHER WITNESSES LIKE MR. PET ER SON , SO FOR US TO JUS T A SS UM E THAT THERE IS SOME W AY T HA T THE DEFENSE LAW YE R S HO ULD HAVE KNOWN ABOUT THIS WITNESS, WITHOUT Y OU TELLING , YOU KNOW, MAKING T HE CONNECTION, I THINK THERE IS -- THAT C RE ATES A P RO BL EM FOR US, A SS UM IN G THA T I T WOU LD EVEN MEET T HE SEC ON D PRONG.

CORRECT. M R. ATKINS TESTIFIED AND IT IS IN THE BRIEF THA T H E W AS VERY INVOLVED W ITH T HI S FAMILY. HE WAS R EF ERRE D T O B Y THE COURT S F OR T HI S C OUNS ELIN G BECAUSE OF THE FAMILY TROUBLES. ALSO HE W OULD G ET C AL LS F RO M MR. WHITFIELD'S TEACH ER S A ND PRINCIPALS IN THE SCHOOLS AND SAY E RN ES T IS NOT IN SCHOOL TODAY. THE OTHER CHILDREN ARE NOT IN SCHOOL TODAY. DO YOU KNOW , M R. ATK IN S , W HY THEY ARE NOT AND HE WOULD GO OUT AND LOOK FOR THE MOT HER , AND HE WOULD FIND HER.

THAT STILL DOE SN'T R EALLY ANSWER THE QUESTION ABOUT WHETHER HIS N AM E WAS RIGHT THERE IN FRONT OF SOM EB ODY IN THE RECOR DS O R W HETH ER THERE WAS S OM E A DD ITIO NA L INVES TIGATION? THAT DOESN'T HELP ME O R H ELP US UND ER ST AN D H OW E AS IL Y I T WOULD H AVE BEE N F OR DEF EN SE COUNSEL TO HAVE O BT AINE D THIS I NDIVID UA L'S NAME O R THE R ECORDS THAT HIS N AM E WERE MENTIONED IN.

W EL L --

A RE THE RE R ECOR DS I N THE COURT FILE THAT R EV EA L T HE NAME OF M R. ATK IN S?

WELL, THE R EC ORDS I NDICATE THAT H E W AS REFERRED TO A PROGRAM I N WHICH M R. ATKIN S P ARTI CIPATED IN, AND HE WAS THE ONLY COUNSELOR THAT T HEY HAD. THESE RECORDS WERE AROUND AT THE TIME OF T HE TRI AL I N 199 5.

SO --

AND D R. R A NAY EVE N K NE W ABOUT.

RAC ED - - BAS ED O N WHA T YOU JUST TOLD US?

AND THE DOC TO R K NEW ABOUT THAT.

WAS THIS S PE CI FIC P RO GRAM NAMED - - THE W IT NE SS N AMED S PECIFIC OR JUST SAID HE WAS REFERRED TO COUNSELING?

THE SPECIFIC PROGRAM NAME. NOT IN THE TRIAL RECORD BUT THE SPECIFIC P RO GR AM N AM E , AND THAT'S HOW W E GET T O M R. ATKINS.

WHERE DID THE SPECI FIC PROGRAM NAME AEAR IN THE RECORDS THAT WERE AVAILABLE OR SHOULD H AVE BEEN AVAILABLE TO TRIAL C OUNSEL?

THOSE WOULD HAVE BEE N I N , I APO LOGI ZE . THEY WERE - - T HEY WOULD HAVE BEEN IN HIS J UVEN IL E RECORDS , BECAUSE HE WAS REFERRE D TO THAT P RO GR AM B Y THE C OU RT , AND THAT WAS WHA T W AS TESTIFIED TO.

S O B UT M IS S BLA NC O HAS TOLD US THAT T HE J UVEN IL E R ECORDS WERE NOT E NTERED INTO EVIDENCE IN THE EVIDENTIARY HEARING.

BECAUSE WE COULD NOT G ET