The following is a real-time transcript taken as closed captioning during the oral argument proceedings, and as such, may contain errors. This service is provided solely for the purpose of assisting those with disabilities and should be used for no other purpose. These are not legal documents, and may not be used as legal authority. This transcript is not an official document of the Florida Supreme Court.
Michel Rivera v. State of Florida
SC05-1873
THE NEXT CASE ON OUR CALENDAR
THIS MORNING IS RIVERA V. STATE.
>> I'M HERE --
>> IF YOU COULD TALK UP, AND
MR. McCLAIN, I'M GOING TO ASK
YOU FOR ME, AS MANY OF YOUR
CASES ARE, YOU HAVE GOT A LOT OF
POINTS.
IF YOU COULD TRY TO FOCUS JUST
ON IF YOU SAID HERE ARE THE
THREE POINTS WE HOPE WE CAN
LEAVE THIS ORAL ARGUMENT WITH
AND AS CLEAR AS YOU CAN DO IT.
>> I ALMOST ANTICIPATED THAT
BECAUSE I WAS GOING TO SAY MY
FOCUS IS GOING TO BE ON THE DNA
AND CERTAINLY IF THERE'S ANY
EXTRA TIME TO DISCUSS THE JUDGE
ISSUE, I WILL DO THAT.
>> AND ALSO, THEN, PLEASE TAKE
PAINS TO NOT ON I HAVE SKATE THE
FACTORS.
LES A LOT OF FACTUAL, THE DAYS
THEY COME OUT, SO PLEASE BE SURE
THAT WE HAVE A VERY CLEAR AND
DIRECT FACTUAL PICTURE TO
DISCUSS.
>> YES, YOUR HONOR.
HAVING SAID THAT, I'M GOING TO
START WITH THE DNA, BUT I THINK
I JUST WANT TO QUICKLY DO A
LITTLE PROCEDURAL HISTORY THERE
JUST TO REMIND THE COURT.
AN EVIDENTIARY HEARING WAS HELD
ON THE GUILT PHASE.
THIS COURT AFFIRMS THE DENIAL OF
THE GUILT PHASE.
WHILE THOSE PROCEEDINGS ARE
GOING ON, A NEW 3850 IS FILED ON
THE BASIS OF BRADY MATTERS AND
ALSO REQUESTS FOR DNA TESTING IS
INCLUDED IN THAT 3850.
FILED IN 1999.
BEFORE THE ORDER DENYING PENALTY
PHASE RELIEF COMES OUT, THAT
3850 IS AMENDED IN 2001.
WHEN THE ORDER COMES OUT DENYING
RELIEF, THERE'S NO MENTION OF
THIS 3850 REGARDING THE GUILT
PHASE, MATTERS OF THE BRADY
CLAIM OR THE DNA TESTING.
I'VE BECOME MR. RIVERA'S COUNSEL
AFTER THAT ON THE APPEALS OF
THIS COURT.
I BRING TO THIS COURT'S
ATTENTION, THAT 3850 HAS NOT
BEEN RESOLVED.
>> WAS THE UNRESOLVED 3850 FILED
WITH LEAVE OF THE TRIAL COURT OR
WAS IT JUST FILED AFTER THE
EVIDENTIARY HEARING ON THE
PENALTY PHASE ISSUE?
>> OFF THE TOP OF MY HEAD, I
DON'T SPECIFICALLY RECALL.
I BELIEVE THAT THERE WAS LEAVE,
BUT I CAN'T SWEAR TO THAT.
I KNOW THAT IT WAS ORIGINALLY
FILED IN '99.
>> AFTER THE EVIDENTIARY HEARING
THOUGH?
>> IT'S FILED, I THINK, BEFORE
THE EVIDENTIARY HEARING, AMENDED
AFTER THE HEARING.
AND THEN THE JUDGE'S ORDER COMES
OUT DENYING THE PENALTY PHASE --
>> I JUST WANT TO HEAR ON THE
DNA JUST LIKE QUICK THING,
ASSUMING PROCEDURAL BAR DOESN'T
EXIST, WHAT IS THE DNA?
THE HAIR --
>> YES.
>> AND WHAT DID THE JUDGE DO
BELONG TO.
>> THE ONLY CAVEAT I JUST WANTED
TO POINT OUT, WHEN THIS COURT
REMANDED THE 3850 AND THE DNA
REQUEST, THIS COURT SPECIFICALLY
POINTED OUT YOU HAD ADOPTED RULE
308.3.
AND IT SHOULD BE ANALYZED UNDER
THAT.
THE JUDGE, OR THE STATE DOES NOT
OBJECT TO A 3853 TESTING OF THE
HAIR THAT WAS INTRODUCED INTO
EVIDENCE.
THE HAIR WAS FOUND IN THE BLUE
VAN.
IT'S INTRODUCED INTO E EVIDENCE
EVERY DAY.
THE TESTIMONY WAS FROM A BROWARD
COUNTY SPECIALIST.
HE SAYS I CANNOT CONCLUSIVELY
SAY THIS IS THE VICTIM'S HAIR.
IT'S NOT LIKE TRANSCRIPTING.
ALL I CAN SAY IS IT'S SIMILAR
TO, AND IT COULD BE HER HAIR.
>> THAT WAS AT THE TRIAL?
>> THAT'S AT THE TRIAL.
>> OKAY.
SO NOW WHAT DOES THE TESTING
SHOW?
>> SO WHAT HAPPENS, THE TESTING
SHOWS IT IS DEFINITELY NOT HER
HAIR.
SHE'S RULED OUT.
>> WHAT DOES THE TRIAL JUDGE DO
WITH THAT?
THIS TRIAL JUDGE IN THIS CASE?
>> THIS JUDGE SAYS THAT DISCUSS
NODS WARRANT AN EVIDENTIARY
HEARING.
>> WELL, WHAT WOULD THE
EVIDENTIARY HEARING BE ON?
>> IT WOULD BE ON PRESENTING THE
CONCLUSIONS, PRESENTING WHAT IT
MEANS, ETC.
AND ALSO EVALUATING CUELATIVELY
WITH THE CLAIMS THAT HAD BEEN
PRESENTED IN '95 --
>> IT WOULD BE A NEW EVIDENCE
CLAIM.
>> DEFINITELY IT'S A NEW
EVIDENCE CLAIM, AND UNDER THE
EVALUATED CUMULATIVELY WITH ALL
OF THE OTHER INFORMATION THAT
HAS COME OUT SINCE THAT THE JURY
DIDN'T HAVE.
>> AND YOU SHOWED US IN YOUR
BRIEF HOW MUCH THEY RELIED, AT
LEAST YOU CLAIM, IN THE ORIGINAL
TRIAL ON THIS HAIR.
>> IT'S MENTIONED IN THE
OPENING, IT'S MENTIONED IN THE
CLOSING.
I THINK ALL OF THAT IS SET FORTH
IN THE BRIEF.
>> NOW YOU HAVE, SO THAT'S THE
HAIR, NOW YOU GET TO THIS PERSON
THAT YOU'RE SAYING SHOULD HAVE
BEEN MORE IMPEACHED.
>> BEFORE YOU GET TO THAT, I
HAVE QUESTIONS ABOUT THE DNA
EVIDENCE.
DID YOU THEN FILE A MOTION FOR
NEW TRIAL BASED ON
NEWLY-DISCOVERED EVIDENCE?
>> YES.
WHAT HAPPENED IS THE JUDGE HAD
RULED I COULD DO SORT OF ONE
AMENDMENT OF THE 3850 FROM 2001
ONCE WE FINISHED THE DNA TESTING
AND ANY OTHER 119 RECORDS.
THAT WAS FILED IN JANUARY OF
2004 WITH ALL OF THE INFORMATION
I'D OBTAINED.
>> AND THE JUDGE DENIED THAT?
>> AND THAT'S THE 3850, THAT
AMENDED 37850 -- 3850 THAT HAS
BEEN DENIED WITHOUT THE BENEFIT
OF AFTER AN EVIDENTIARY HEARING.
I HAVE REQUESTED THAT HAIR BE
TESTED AND ALSO HAIR FOUND ON
THE VICTIM'S BODY TO BE TESTED.
THE STATE SAID THAT HADN'T BEEN
INTRODUCED INTO EVIDENCE, THEY
OBJECTED TO THAT.
AND SO INITIALLY THE TESTING
JUST WAS THE HAIR THAT WAS
INTRODUCED.
>> WHO WOULD TESTIFY AT THE
EVIDENTIARY HEARING?
YOU ALREADY HAD IT TESTED SO
WHAT MORE INFORMATION DO YOU
NEED OTHER THAN TO MAKE YOUR
ARGUMENTS ABOUT THE SIGNIFICANCE
OF THIS HAIR NOT BEING THE
VICTIM'S?
>> WELL, I MEAN, I THINK
UNDER -- I MEAN, THE RESULT IS
NOT IN EVIDENCE.
I HAVE NOT INTRODUCED INTO
EVIDENCE THE MY TO COND REEL
REPORT FROM THE PEOPLE IN
PENNSYLVANIA.
IF THE STATE IS STIPULATING AS
TO THE RESULTS, THEN THE
EVIDENTIARY HEARING WOULD BE ON
THE SIGNIFICANCE OF THIS IN
CONJUNCTION WITH THE CUMULATIVE
EFFECT --
>> BUT MY QUESTION, REALLY, IS
DO YOU NEED AN EVIDENTIARY
HEARING TO DO THAT?
>> I --
>> WE ACCEPT THAT THIS IS NOT
THE VICTIM'S HAIR.
DO YOU NEED AN EVIDENTIARY
HEARING TO DO YOUR ARGUMENT
ABOUT THE CUMULATIVE EFFECT AND
THOSE KINDS OF THINGS?
>> I HAD ALWAYS ASSUMED THAT
WOULD BE REQUIRED SIMPLY BECAUSE
I WAS ASSUMING THAT NO ONE WAS
STIPULATING TO THE
QUALIFICATIONS TO THE RESULTS
THAT THE STATE WOULD PRESUMABLY
WANT TO CROSS EXAMINE THE EXPERT
AS TO WHAT IT DOES OR DOES NOT
MEAN.
>> SO WE MAKE SURE ON THE HAIR,
LET'S ASSUME IT'S CONCLUSIVELY
ESTABLISHED NOT TO BE THE
VICTIM'S.
ARE YOU ALSO ASSERTING ERROR IN
THE TRIAL JUDGE UNDER A 3853 NOT
HAVING OTHER HAIR TESTED?
>> WELL, WHAT HAPPENED --
>> JUST YES OR NO.
I KNOW IT'S ALWAYS COMPLICATED
IN YOUR CASES.
I KNOW THAT.
>> THE STATE ASKED FOR
ADDITIONAL TESTING.
AFTER THOSE RESULTS CAME IN.
AND THEY WANTED THE HAIR ON THE
BODY TESTED.
THE RESULTS, BECAUSE THEY DON'T
DO MY TOE COND' Y'ALL, WERE
INCONCLUSIVE.
THEY WERE SENT BACK TO -- AND
THOSE RESULTS INDICATED
VIRTUALLY ALL OF THE HAIRS FOUND
ON HER WERE HERS.
THERE WAS ONE HAIR THAT WAS
MIXTURE, AND THEY JUST COULDN'T
CONCLUSIVELY --
>> SEE, NOW YOU'RE NOT KEEPING
IT SIMPLE.
THAT'S ONLY BECAUSE WE'VE GOT TO
GET THE PICTURE.
WHAT I WAS GOING 20 SAY -- TO
SAY WAS ON THE HAIR THING, THAT
STANDING ALONE YOU WOULD AGREE
WOULDN'T PROBABLY PRODUCE AN
ACQUITTAL WITH EVERYTHING ELSE
IN THIS CASE.
>> I'M NOT GOING TO AGREE TO
THAT.
>> WELL, IT'S PRETTY WEAK FOR
YOU.
>> THE STATE UNDER 3853, AGREE
TO THE EVIDENTIARY HEARING?
I MEAN, TO THE DNA TESTING.
IT REQUIRES ME TO ESTABLISH THAT
IF I GET THE FAVORABLE RESULTS
THAT IT CALLS INTO QUESTION THE
RESULT OF THE TRIAL.
THAT'S A REQUIREMENT OF 3853.
THE STATE DEPARTMENT OBJECT, THE
JUDGE ORDERED THE DNA TESTING --
>> BUT WE DON'T WANT TO DO
SOMETHING USELESS.
I'M NOT GOING TO GO ON, THEN, TO
YOUR INFORMANT UNTIL WE'RE SURE
WE'RE ALL FINISHED WITH THE
HAIR.
>> I DON'T THINK YOU'VE ANSWERED
THE JUSTICE'S QUESTION WHICH IS
WHY WOULD THIS PROBABLY PRODUCE
AN ACQUITTAL ON RETRIAL?
THERE'S OTHER EVIDENCE, EVEN
THOUGH THIS IS THE ONLY EVIDENCE
DIRECT EVIDENCE OR
CIRCUMSUBSTANTIAL PLACING THE
VICTIM IN THE VAN, HE CONFESSED
TO SEVERAL PEOPLE, AND
ELIMINATING THE ONE WITNESS YOU
CLAIM WAS A CI, HE CONFESSED TO
OTHER PEOPLE.
>> THE ONLY OTHER PERSON THAT HE
ALLEGEDLY CONFESSED TO WAS WHEN
HE MADE AN OBSCENE PHONE CALL.
PEOPLE WHO MAKE OBSCENE PHONE
CALLS ARE TRYING TO SHOCK THE
LISTENER.
>> THE JURY CAN REJECT WHAT YOU
JUST SAID.
>> ABSOLUTELY.
BUT I WOULD SUBMIT WHEN YOU HAVE
MENTAL HEALTH EXPERTS SAYING
OBSCENE PHONE CALLERS DON'T TELL
THE TRUTH WHEN THEY'RE MAKING AN
OBSCENE PHONE CALL, THAT THERE
IS A REASONABLE LIKELIHOOD OF
REASONABLE PROBABILITY OF A
DIFFERENT OUTCOME --
>> IT WILL PROBABLY PRODUCE AN
ACQUITTAL ON RETRIAL.
>> WHEN A STATE SPECIFICALLY
RELIES ON THIS, THIS IS NOT JUST
IN A VACUUM.
WE'VE ALREADY PRESENTED THE
TESTIMONY OF MARK PETERS IN THE
PRIOR PROCEEDINGS WHERE HE
INDICATED HE HAD THE BLUE VAN AT
THE TIME.
THIS COURT DIDN'T ACCEPT THAT.
BUT MARK PETERS WAS THE OWNER OF
THE BLUE VAN, NOT MICHAEL
RIVERA, AND THE TESTIMONY WE
FOUND, THE TRIAL ATTORNEY WAS
NOT ABLE TO FIND HIM.
MARK PETERS SAID AT THE TIME OF
THE HOMICIDE, HE HAD THE VAN.
>> IS THE HAIR THE ONLY PHYSICAL
EVIDENCE THAT TIES THIS
DEFENDANT TO THE MURDER?
>> TO THE VAN.
>> TO THE VAN.
OKAY.
>> MADE REFERENCE TO THE VAN.
>> ALL RIGHT.
BUT THE ONLY PHYSICAL EVIDENCE
THAT SHOWS THAT IF HE HAD THE
VAN AT THAT TIME AND THE
VICTIM'S HAIR WAS IN THERE,
THAT'S PRETTY, MUCH MORE
POWERFUL.
ALL RIGHT, NOW, SO WHAT YOU'RE
SAYING IN A PRIOR CASE, AND
AGAIN, I'M FOLLOWING THIS
THREAD, PETERS DID NOT TESTIFY
AT THE TRIAL.
>> CORRECT.
>> PETERS TESTIFIED LATER, AND
THERE'S A DOUBT, NOW, AS TO
WHETHER AT THE CRITICAL TIME
WHETHER RIVERA ACTUALLY WAS IN
POSSESSION OF THE VAN BY
HIMSELF.
>> CORRECT.
>> SO NOW YOU GET TO WHY YOU
REALLY WANT US ALSO TO KNOW THAT
THIS ONE PERSON WHO IS POWERFUL
CONFESSION EVIDENCE --
>> YES.
>> IS REALLY RENDERED, GAVE
FALSE TESTIMONY?
>> RETURNING TO THAT, ONE LAST
POINT ON THE DNA BEFORE I LEAVE
IT IS THAT AFTER THE RESULT CAME
IN THAT THAT HAIR WAS NOT
STACY'S, THEN THE STATE DECIDED
THEY WANTED THE HAIR ON THE
CLOTHING TESTED.
THAT IN AND OF ITSELF SHOWS
DISCOMFORT AND CONCERN OVER THE
RESULTS OF THE HAIR FROM THE
VAN.
>> HOW ABOUT, WAS THERE ANYTHING
FROM THE BODY SUIT OR THE
STOCKINGS THAT WERE OUT IN THAT
FIELD SIGNAL WASN'T THERE
SOMETHING, PIECE OF GARMENT, DID
ANYTHING COME FROM THAT?
>> THE DNA TESTING THAT THE
STATE REQUESTED AFTER WE GOT THE
FIRST RESULT, THERE WAS A
SWEATER AND A SHOE.
HAIR FOUND ON THAT WAS SENT OFF
FOR TESTING.
EVERYTHING BUT ONE HAIR WAS
DEFINITELY RULED OUT TO BE FROM
MICHAEL RIVERA.
AS FOR ONE HAIR THEY SAID
THERE'S A PROBLEM WITH IT, BUT
BECAUSE OF THAT WE CAN'T REACH A
CONCLUSION.
>> SO LET ME MAKE SURE WHAT
YOU'RE ARGUING, AN EVIDENTIARY
HEARING WOULD BRING IN THESE
OTHER MATTERS THAT WOULD ADDRESS
TO CREATE THE BASIS THAT IT
WOULD PROBABLY HAVE A DIFFERENT
RESULT?
YOU NEED THIS OTHER EVIDENCE TO
COME IN IN CONNECTION WITH THE
DNA?
>> YES.
DEFINITELY, IT BRING BREAKS THE
CONNECTION.
>> SORT OF LIKE WE DID --
>> CORRECT.
ON ONE LEVEL I WANT TO ARGUE THE
DNA ALONE WARRANTS A NEW TRIAL,
BUT I'M ALSO RELYING ON ALL OF
THE NEW INFORMATION REGARDING
SUBRELL LA.
AND IN REFERENCE TO THAT, TO
SOME EXTENT I THINK THE STATE'S
SAYING YOU HAD PIECES OF A
JIGSAW PUZZLE BEFORE.
IN FACT, IN 1995 A CLAIM WAS
PRESENTED THAT ZUCCARELLO WAS
WORKING FOR THE STATE.
BUT IN 1995, THE STATE POINTS
OUT YOU DIDN'T PRESENT EVIDENCE
TO SUPPORT IT.
AND THAT'S BECAUSE WE DIDN'T
HAVE THE PIECES NECESSARY TO
ESTABLISH THAT.
>> WHEREWHICH IS THE JIGSAW PUZZLE?
THE WRITTEN PLEA AGREEMENT?
>> WELL, THERE'S A NUMBER OF
THINGS.
THERE'S THE WRITTEN PLEA
AGREEMENT.
>> I THOUGHT THEY SAID THAT WAS
NEVER EXECUTED?
THE WRITTEN PLEA AGREEMENT.
OR IS THAT --
>> I DON'T RECALL THE MEMBER
SAYS THAT'S NOT WHAT WAS
EXECUTED.
THE WRITTEN PLEA AGREEMENT, MY
UNDERSTANDING EVEN THOUGH
THERE'S NOT A DATE ON IT WAS
WHAT WAS ENTERED INTO IN JUNE OF
1986 BEFORE HE WENT INTO COURT
AND PLED.
MY UNDERSTANDING WAS THAT WAS
THE PLEA AGREEMENT THAT WAS, IN
FACT, EXECUTED.
>> AND WHEN DID HE TESTIFY?
>> HE TESTIFIED THAT HE WAS
TESTIFYING AGAINST --
>> NO, NO WHEN.
>> IN MICHAEL RIVERA'S CASE IN
EARLY '97.
>> I THOUGHT IT WAS APRIL OF
'86.
>> NO, ALSO TO BE CLEAR,
RIVERA'S ARRESTED IN FEBRUARY OF
'96.
HE'S CHARGED WITH ANOTHER CRIME
INVOLVING DEATH.
HE'S NOT INDICTED ON THIS MURDER
UNTIL AUGUST OF '86.
THERE IS AFTER -- HAS GOTTEN
FROM ZUCCARELLO THAT MICHAEL
RIVERA CONFESSED THE MURDER TO
HIM.
THERE'S ALSO THE JAILHOUSE
RECORDS OR THE JAIL RECORDS
SHOWING TRANSPORTATION.
AND WHAT BECOMES IMPORTANT IS
KNOWING THAT ON APRIL 18TH IS
WHEN AROUND GENERAL TEEN, A
BROWARD COUNTY SHERIFF'S PERSON,
TAKES HIM OUT OF JAIL.
AND THAT TIES HIM TO THE
TESTIMONY THAT HE FIRST TOLD
ARJENTINE ABOUT THE CONFESSION
FROM RIVERA.
THE TESTIMONY WAS THAT HE
CONVEYED HE HAD INFORMATION, BUT
THAT IT'S -- WHO HE REALLY TELLS
THE STORY TO, AND THAT'S NOT
UNTIL JULY 16TH.
THE SIGNIFICANCE OF THAT IS HE'S
WORKING AS AN AGENT.
HE TESTIFIES HE HAD ABOUT 15 OR
16 CONVERSATIONS WITH RIVERA IN
WHICH HE'S HEARING THIS
CONFESSION.
BUT HE'S WORKING AS AN AGENT.
IN FACT, THE SYNOPSIS WHICH IS
ALSO NEW SHOWS THAT ON APRIL 4TH
HE WAS DESCRIBED AS A
CONFIDENTIAL INFORMANT WORKING
FOR BOTH BROWARD AND DADE
COUNTIES.
>> SO IS YOUR ARGUMENT, THEN, IF
HE WAS THE CONFIDENTIAL
INFORMANT AND, AS I UNDERSTAND
IT, HE WAS WORKING ON A LOT OF
THESE HOME INVASION KINDS OF
ROBBERIES AND THINGS.
SO IF HE WAS WORKING AS A
CONFIDENTIAL INFORMANT FOR THOSE
ROBBERIES, DOES THAT TRANSLATE
INTO HIM ALSO BEING A
CONFIDENTIAL INFORMANT ON THIS
CASE?
>> WHEN YOU READ THAT SYNOPSIS
FROM APRIL 4TH AND THE ONE FROM
APRIL 18TH, IT'S CLEAR HE'S NOT
LIMITING HIMSELF TO THOSE CASES
HE WAS INVOLVED IN, THAT HE IS
GATHERING INFORMATION ON OTHER
CASES AND FEEDING INFORMATION TO
THE LAW ENFORCEMENT ABOUT
ANOTHER UNSOLVED MURDER.
>> MY QUESTION STILL IS, THOUGH,
THESE OTHER CASES, THE HOME
INVASION ROBBERIES, DOES THE
FACT THAT HE'S HELPING THE
POLICE ON THOSE TRANSLATE INTO
HIM BEING A CONFIDENTIAL INFORM
PANT ON THIS CASE?
>> WELL, I THINK IT DOES WHEN
YOU READ THE SYNOPSIS WHERE IT'S
DESCRIBING HIM AS A CONFIDENTIAL
INFORMANT, AND HE'S STILL TRYING
TO GET INFORMATION.
THEY SPECIFICALLY HAVE A
PARAGRAPH INFORM THERE THAT HE
ACKNOWLEDGES HE HASN'T TOLD THEM
EVERYTHING HE KNOWS.
HE WANTS TO SEE WHAT THEY'RE
GOING TO GIVE HIM OR HOW THEY'RE
GOING TO NEGOTIATE WITH HIM
BEFORE HE COMES CLEAN.
>> KNOWS ABOUT WHAT?
I MEAN, IS IT EVERYTHING HE
KNOWS ABOUT THOSE HOME INVASION
ROBBERIES?
EVERYTHING HE KNOWS ABOUT THE
COHEN MURDER?
WHAT?
>> IT'S MY ALLEGATION --
>> THAT'S A LITTLE LEAP HERE.
>> WELL, AT THIS POINT IN
TIME --
>> TO SAY HE'S TALKING ABOUT
MR. RI RIVERA'S CASE.
>> I'VE NOT HAD AN EVIDENTIARY
HEARING, I'VE GOTTEN THESE
DOCUMENTS.
I THINK THESE DOCK DOCUMENTS
SHOW HE WAS WORKING AS A
CONFIDENTIAL EMPLOYEE --
>> THE WAY YOU'RE SAYING IS EVEN
IF IT'S NOT, YOU DON'T GET THE
BEST THING WHICH IS GIGLIO, YOU
STILL ARE CLAIMING THIS IS
EITHER NEWLY-DISCOVERED EVIDENCE
OR BRADY THAT SHOULD BE
CONSIDERED IN CONJUNCTION WITH
THE HAIR AND WITH MARK PETERS'
TESTIMONY S. THAT IT IN A
NUTSHELL?
>> YES.
YES.
TRYING TO SAVE ME TIME, I
APPRECIATE THAT.
>> WELL, YOU'RE ABOUT TO RUN OUT
OF IT, SO SHE NEEDS TO.
>> IT'S ALWAYS FASCINATING
BECAUSE IT DOES FEEL LIKE IT'S
OFF TO THE RACES WHEN WE HAVE
YOU UP HERE.
THAT'S BOTH GOOD AND BAD.
>> I'M SORRY.
THANK YOU.
>> I SAY GOOD AND BAD.
>> GOOD MORNING.
CELIA TERENZIO ON BEHALF OF THE
STATE OF FLORIDA.
I GUESS WE CAN START WITH THE
DNA EVIDENCE.
>> YOU NEED TO KEEP YOUR VOICE
UP.
>> I KNOW YOU'RE NOT GOING TO,
QUOTE, CONCEDE, BUT AS WE DID
WHEN WE HAD ALL THESE PIECES, WE
ENDED UP SENDING IT BACK AND
LETTING THE JUDGE LOOK AT IT,
SORT OF TO GET THE WHOLE PICTURE
FOR US RATHER THAN, YOU KNOW,
WE'VE GOT THE HAIR.
IT'S NOW SOMETHING DIFFERENT.
YOU MIGHT WANT TO PICK APART
EACH ONE, BUT THE JUDGE DIDN'T
HAVE AN EVIDENTIARY HEARING TO
EVALUATE IT.
ALL THAT IS NOW EITHER
DISCOVERED, PRODUCED AFTER THE
TRIAL AND, WOULDN'T THAT BE THE
BETTER WAY TO PROCEED IN THIS
CASE?
>> WELL, FIRST OF ALL, THERE WAS
AN EVIDENTIARY HEARING IN THE
FIRST 3850 BACK IN 1995 ON THIS
PLEA AGREEMENT AND WHETHER OR
NOT THE DEFENSE ATTORNEY KNEW
ABOUT IT, OKAY?
>> SO RIGHT AWAY THAT CASE WAS
ALREADY THERE BACK IN '95?
>> YES, IT WAS.
>> WHAT IS THE NEW STUFF ON THE
PERSON THAT'S COME OUT SINCE
'95?
>> YOU MEAN ON --
>> ON THE THE ALLEGED CI?
>> OKAY.
WELL, FIRST OF ALL, CALLING HIM
A CONFIDENTIAL INFORMANT, THERE
WAS NEVER ANY EVIDENCE THAT HE
WAS A CONFIDENTIAL INFORMANT.
>> LET'S CALL HIM --
>> OKAY.
>> WHAT HAS COME OUT SINCE '95
ON ZUCCARELLO?
>> CAN I BRING YOU BACK FIRST TO
WHAT HAPPENED AT THE TRIAL IN
TERMS OF THIS PLEA AGREEMENT?
>> WHY DON'T YOU ANSWER HER
QUESTION DIRECTLY, I THINK, AND
THEN GO INTO THAT.
>> OKAY.
>> I'M JUST ASKING WHAT'S NEW.
NOW YOU'RE SAYING THE PLEA
AGREEMENT ISN'T NEW.
>> IT'S NOT, IT WAS ALWAYS --
>> SO IS THERE ANYTHING NEW?
>> NOW, IN 1995 DURING A
THREE-DAY EVIDENTIARY HEARING ON
PUBLIC RECORD, THE DEFENSE
REQUESTED ANY AND ALL
INFORMATION ON FRANK DUCCARELLO
WHETHER HE WAS A WITNESS,
DEFENDANT, OR VICTIM IN ANY
CASE, AND ALL THAT INFORMATION
CAME OUT.
AS A MATTER OF FACT, IN THE
RECORD FROM THAT FIRST 3850 AND
IN THE RECORD FROM THE REHASN'T
3850, THERE, IN THE RECORD,
THERE IS EVIDENCE FROM THE
PROSECUTOR WHERE SHE OUTLINED IN
LETTERS ALL THE INFORMATION,
EXCUSE ME, ALL THE CASES WHERE
THE STATE PROVIDED THE PUBLIC
RECORDS REGARDING FRANK
ZUCCARELLO'S PARTICIPATION AS A
WITNESS.
>> OKAY, SO SHE GAVE THE CASE
NAMES.
>> YES, SIR.
>> AND DID SHE GIVE WHAT THE
DOCUMENTATION WAS?
>> NO.
>> JUST THE LISTING.
IS THERE A DISPUTE ABOUT WHAT
WAS GIVEN AT THAT TIME?
>> YOU HAVE TO REMEMBER, TOO,
BACK THEN, WE DIDN'T HAVE A
REPOSITORY.
>> IS THERE A DISPUTE ABOUT WHAT
WAS GIVEN AT THAT TIME?
>> WELL, NOT AT THE TIME, THERE
WASN'T.
>> IS THERE NOW?
>> WELL, NOW MR. McCLAIN, AND
YOU HAVE TO REMEMBER, TOO, TO
PUT THIS IN CONTEXT.
MR. McCLAIN IS THE FOURTH CCR
LAWYER ON THIS CASE.
NOW --
>> THAT DOESN'T ANSWER THE
QUESTION AS TO, AGAIN, IS THERE
SOMETHING IN DISPUTE TODAY THAT
HAS BEEN PRODUCED SINCE THAT '95
PROCEEDING AND THAT LETTER THAT
MENTIONED THOSE FILES?
>> I DON'T THINK SO.
>> SAY NO.
>> I DON'T THINK THERE'S BEEN --
>> I THOUGHT THE TWO THINGS WERE
THOSE PRISON RECEIPTS SHOWING
HIM COMING BACK AND FORTH AND
THEN A SYNOPSIS OF A
CONVERSATION WITH FRANK
ZUCCARELLO ON APRIL 4TH, 1986
THAT TALKED ABOUT THE CI
CANDIDLY ADMITS HE'S NOT TOLD
INVESTIGATORS EVERYTHING HE KNEW
AND IS HOLDING BACK SOME
INFORMATION UNTIL HE SEES -- IS
THAT NOT WHAT MR. McCLAIN'S
REFERRING TO?
>> THAT IS WHAT HE'S REFERRING
TO, HOWEVER, SUSAN BAILEY,
ASSISTANT STATE ATTORNEY WHO WAS
ON THIS CASE SINCE 1991 WHEN
DIRECT APPEAL WAS FINAL AND HAS
INTIMATELY BEEN INVOLVED IN ALL
THE PUBLIC RECORDS HEARINGS
INCLUDING THE THREE-DAY
EVIDENTIARY HEARING ON THIS
EXACT ISSUE, AS AN OFFICER OF
THE COURT TOLD THE COURT AND
ATTACHED TO HER RESPONSE
INFORMATION THAT SHE TOOK FROM
ONE OF THOSE SUCH FILES, AND
ACTUALLY, IT INCLUDED EVEN MORE
DETAIL ABOUT WHAT YOU'RE TALKING
ABOUT.
IT WAS THE ACTUAL DEPOSITION
FROM DETECTIVE GROSS, AND THAT'S
WHERE THIS IS COMING FROM, A
STATEMENT FROM FDLE, STATEMENT
TAKEN BY FDLE OF FRANK
ZUCCARELLO WHICH CLEARLY
DELINEATED ALL OF THIS
INFORMATION.
ALSO INCLUDED IN THERE WAS A
BOND HEARING TESTIMONY OF
ANOTHER FDLE AGENT WHERE HE
TALKS ABOUT FRANK ZUCCARELLO
BEING ACTIVELY INVOLVED -- HE
WAS A CO-DEFENDANT IN MANY OF
THESE CASES WE'RE TALKING
ABOUT -- ACTIVELY INVOLVED TO
THE POINT WHERE THE FDLE AGENT
ACTED AS A TRAFFIC OFFICER --
>> SO LET ME MAKE SURE, YOU'RE
SAYING IT WAS ALREADY VISITED IN
1995 IN AN EVIDENTIARY HEARING,
BUT THERE ARE NEW DOCUMENTS.
YOU'RE JUST SAYING THEY'RE NOT
REALLY DIFFERENT FROM '95.
>> YES, THEY'RE NOT.
>> MY CONCERN IS THERE'S A LOT
OF ON
NOW, AND, A LOT MORE
DETAILED ABOUT HIS
INVOLVEMENT!!$$!!!!!!!!!!!!!!!!!!!!
INVOLVEMENT, SO IN THAT
REGARD -- YOU ARE -- YOU
KNOW, SHOULD THE JUDGE BE
LOOKING IF WE WERE TO ALLOW
ANSWERING EVIDENTIARY
HEARING ON ANY PART OF THIS,
CUMULATIVE!!$$!!!!!!!!!!!!!!!!!!
CUMULATIVELY ON ZUCCARELLO,
ON THE PETERS TESTIMONY
ABOUT WHAT HE WAS IN
POSITIVE O SESSION OF THE
VAN, AND NOW, I GUESS WE GET
BACK TO THE HAIR, THAT IT IS
NOW CONCLUSIVELY ESTABLISHED
NOT TO BE THE $$VICTIM'S.
>> OKAY, A LOT OF QUESTIONS
IN THERE
>> NUMBER ONE.
>> DO YOU SEE THE ISSUE
THERE IS HAS BEEN NO NIGH
EVIDENTIARY HEARING WE ARE
TRYING TO DECIDE NOT
ULTIMATE ISSUE BUT WHETHER
THERE SHOULD BY THESE SHOULD
BE LOOKED AT CUMULATIVELY
AND EVALUATED BY A TRIAL
JUDGE, TO SEE IF ALL PIECES
TOGETHER EITHER UNDERMINE
CONFIDENCE IN THE OUTCOME,
OR THE PROBABLY PRODUCES
ACQUITTAL ON RETRIAL.
>> LET'S START WITH
ZUCCARELLO THE INFORMATION,
THAT THEY POSSESSIONED SINCE
94 REGARDING HAVE HIS
PARTICIPATION AS A WORNS
CO-DEFENDANT IN THESE OTHER
CASES, THEY HAD ALL OF THAT
INFORMATION!!$$!!!!!!!!!!!!!!!!!!!!
INFORMATION, PRIOR TO THE
FILING OF THE FIRST 3850.
OKAY?
NOW, THE DEFENSE ATTORNEY
WOULDN'T HAVE THAT
INFORMATION AT THE TRIAL.
WHAT HE HAD AT THE TRIAL WAS
THE P$$LEA AGREEMENT WHICH
DETAILED THAT MR. ZUCCARELLO
WAS THEN TO PROVIDE AGAIN
THIS P$$LEA AGREEMENT DID NOT
INCLUDE THIS CASE, AND I
THINK I THINK THE RECORD IS
CLEAR ON THAT.
>> BUT ARE YOU SAYING THAT
THE DEFENSE ATTORNEY HAD
THIS P$$LEA AGREEMENT WE ARE
TALKING ABOUT NOW AT THE
TIME OF TRIAL.
>> YES.
>> ABSOLUTELY, AS A MATTER
OF FACT, ON THE RECORD, YOU
CAN START AT PAGE 1410 OF
HIS CROSS-EXAMINATION, MR.
-- RIVERA'S TRIAL COUNSEL
SAYS TO HIM TELL ME ABOUT
YOUR 23 FELONYING
CONVICTIONS AND HE SAID WELL
I HAD HE IS TALKING ABOUT
HIS PLEGRAEMENT SAYS MY P$$LEA
AGREEMENT TOOK 23 APPELLATE
KNEES, WHICH IS -- THE A
COMBINATION OF ALL THE CASES
FROM DADE, AND BROWARD,
COUNTIES, OKAY, AND -- ALL
THE PUBLIC RECORDS, ARE
GENERATED FROM ALL OF THOSE
CASES.
SO HE ASKS HE SAYS YES MY P$$!!!!
PLEA AGREEMENT INVOLVED ME
COMING OUT ALL -- COMING OUT
23 CASES IN DADE CASES SAYS
I GOT FIVE PLAERS IN P$$LEA
AGREEMENT FOR THOSE CASES.
>> NOT THE SAME AS DEFENSE
ATTORNEY ACTUALLY HAVING THE
PE. LEA A AGREEMENT YOU ARE
REPRESENTING THAT THE
DEFENSE ATTORNEY HAD A COPY.
>> YES I AM, YET -- THE
DEFENSE ATTORNEY IS
QUESTIONING!!$$!!!!!!!!!!!!!!!!!!!!
QUESTIONING, HIM, ON -- ON
ALL THE CASES, THAT ARE IN
THE P$$LEA AGREEMENT AS MATTER
OF OF FACT HE LISTS THE
DEFENSE ATTORNEY ASKS HIM TO
DISCUSS WITH HIM THE --
WHETHER THE AG ASSAULT THE
KINGS!!$$!!!!!!!!
KINGS,!!$$!!!!!!!!!!
KID NAPPINGS CREDIT FARED
FORGERY ASKS FOR ALL THOSE
CASES WHAT DID YOU GET HE
GOT SEVEN YEARS ON THAT P$$LEA
AGREEMENT SAYS IT IN HERE I
GOT SEVEN YEARS BUT I HAVE A
MOTION TO MITIGATE CURRENTLY
PENDING CAUTION I WANTED TO
RUN CONCURRENT WITH THE DID
A CASES SO I MAINTAIN I --
DADE CASES DID HE SHOW HIM
THE P$$LEA AGREEMENT?
NO THE RECORD DOESN'T
DEMONSTRATE THAT, BUT I
THINK THAT RECORD IS REPLETE
WITH REFERENCES, TO THAT P$$!!!!
PLEA AGREEMENT AS A MATTER
OF FACT, AT ONE POINT,
MR. MELIVINDAASKS WHIM WHEN
DID YOU FINALLY COME FORWARD
TO BE -- REGARDING WHAT
MICHAEL RIVERA SAID TO YOU,
HE CAME FORWARD, AFTER THE
PLEA AGREEMENT HOW COULD
THAT BETRAY AGREEMENT HAVE
EVER!!$$!!!!!!
-- THAT PLEA AGREEMENT.
>> THAT IS WE HAVE DATE I
DIDN'T SEE DATE WHAT IS THE
DATE ON THAT PLEA AGREEMENT?
>> WELL, ACCORDING TO THE
COPY WE HAVE, DOESN'T HAVE A
DATE HOWEVER, I KNOW IT IS
IN A COURT FILE, AND
MR. McCLAIN HAS REPRESENT
AND I THINK HE IS CORRECT,
JUNE 12, 1986.
>> IS THERE SOMETIME LATER
THOUGH, PURSUANT TO A PUBLIC
-- RECORDS REQUEST THAT
STATE ACTUALLY LATER, IN THE
POSTCONVICTION LITIGATION,
DOES PROVIDE AN ACTUAL COPY
OF THE PLEA AGREEMENT.
>> YES.
>> WHEN IS THAT.
>> THAT HAPPENED IN
LITIGATION IN 1994 AT THE
HEARD!!$$!!!!!!!!
EVIDENTIARY HEARING OF THE
FIRST PUBLIC RECORDS REQUEST
IN THE POSTCONVICTION AS A
MATTER OF FACT, THEY GOT A
HEARING ON THAT, THEY DIDN'T
PRESENT ANY IT WERES IT WERE
ANYWAYSES THE STATED CALLED
MR. HANCOCK PROSECUTOR
MR. SHABAS, WHO WAS
REPRESENT!!$$!!!!!!!!!!!!!!!!
REPRESENTING MR. RIVERA AT
THAT TIME ASKS HIM ABOUT
WELL LET'S TALK ABOUT THE
JUNE 1986 CONVICTION, AND
MR. SHABAS, RISKED THE
CORRECT RIGHT FROM THE PLEA
AGREEMENT HE SAYS OKAY,
THREE COUNTS OF KIDNAPPING,
ONE COUNT OF AG ASSAULT,
EVERYTHING, THAT WAS IN THE
PLEA AGREEMENT WAS
DISCUSSED, AT THE 3850
HEARING THAT IS ON.
>> THAT HEARING WAS IN 1995?
>> YES, SIR.
>> OKAY NOW WAS THIS WRITTEN
PLEA AGREEMENT THAT WE ARE
NOW FOCUSING ON, PUT IN
EVIDENCE?
>> NO.
>> AT THE TIME -- HEARING.
>> NO, SIR WAS NOT.
>> IS THERE ANY REASON WHY
NOT?
>> BY EITHER THE STATE OR
THE -- BECAUSE GRANTED, THAT
THE PROSECUTOR, CONTINUED TO
SAY, YOU KNOW IN THIS CASE,
I DIDN'T OFFER HIM ANYTHING.
IN HE DID EXPLAIN, HOWEVER,
HAVING WRITTEN A LETTER; IS
THAT CORRECT?
>> YES, YES.
>> WHY WASN'T THAT -- IF
THAT WAS THERE, AND, YOU
KNOW THAT THAT WAS GREATER
CLARITY IT SEEMS LIKE,
EXPLAIN WHAT THE DEAL WAS,
IF IT IS INFORMANT
>> I DON'T KNOW -- BUT IT
WASN'T YOU KNOW.
>> I DON'T KNOW WHY, MR. --
MR. SHABAS, DID NOT PUT THE
--
>> -- IN THIS RECORD, IN
OTHER WORDS, THE RECORD
AFFIRMATIVELY SHOWS THAT
SOMETIME IN 1994 THAT PUBLIC
RECORD WAS DISCLOSED TO THEN
DEFENSE COUNSEL COLLATERAL
COUNSEL, THAT THIS WRITTEN
PLEA AGREEMENT --
>> WAS -- NOW YOU ARE
TALKING ABOUT SPECIFIES!!$$!!C A
SPECIFIC REFERENCE TO THE
PLEA AGREEMENT.
NO.
NO.
WHAT IMSAYING THAT -- NO.
>> THERE IS A DIFFERENCE, OR
-- WHAT PART OF WHAT WE ARE
STRUGGLING WITH IS THAT
THERE IS A DIFFERENCE
BETWEEN DEFENSE LAWYERS
SEEMING TO KNOW ABOUT
SOMETHING, AND ASKING
QUESTIONS ABOUT IT, OR WHAT!!$$!!!!!!
WHATEVER, AND THEN, THE
IMPACT OF THIS ACTUAL
WRITTEN PLEA AGREEMENT WHICH
SEEMS TO BE A VERY
COMPREHENSIVE DOCUMENT IN
TERMS OF SAYING YOU KNOW YOU
ARE COOPERATING WITH US ON
ALL THE KINDS OF CASES, AND
EVEN HAS SOME REFERENCE TO
HOMICIDES NOW, WE ARE GOING
TO LEAD THE RESPONSIBILITY
TO THE INDIVIDUAL
PROSECUTORS.
AS TO HOW THEY HANDLE IT
WITH YOU.
ISN'T THERE SOMETHING IN
THERE ABOUT YOU KNOW -- SO
--
>> YES.
>> IT IS VERY COMPREHENSIVE
DOCUMENT IN TERMS OF
APPARENTLY UTILIZING YOU
KNOW THIS PERSON, AS A -- AS
IF YOU DON'T CALL HIM A
CONFIDENTIAL INFORMANTP
CERTAINLY IT IS SOMEBODY.
HE IS INFORMANT, OH, YES,
HE IS ACTIVE.
>> -- AS OF THAT POINT.
>> YES.
>> AND IT SEEMS LIKE -- THAT
IF THAT WRITTEN DOCUMENT WAS
IN THE RECORD AT THE TIME
THAT THIS CASE WAS TRIED IT
WOULD GIVE A WHOLE NEW COLOR
TO WHAT ROLE THIS WITNESS
WAS PLAYING YOU KNOW, IN
TERMED OF BECAUSE HE -- HE
IS SITTING THERE AT THE
TRIAL, SAYING, YOU KNOW, THE
ONLY REASON I'M COMING
FORWARD IS BECAUSE I HEARD
THIS FELLOW, TELL ME ABOUT
THIS, HORRIBLE OFFENSE, AND
I'M JUST A GOOD CITIZEN, AND
NOBODY PROMISED ME ANYTHING,
AND WHATEVER.
AND THEN YOU LOOK AT THIS
WRITTEN PLEA AGREEMENT, AND
SEEMS TO SUGGEST THAT THIS
FELLOW IS YOU KNOW WORKING
FOR THE STATE, IN DADE
COUNTY AND BROWARD COUNTY,
IN ALL KINDS OF WAYS, YOU
KNOW, WHICH THE DETAILS
WOULD HAVE TO BE -- FLUSHED
OUT.
WHAT IS A BETTER THING TO
HAVE A TRIAL JUDGE -- HAVE A
HEARING, AND SORT IT ALL OUT
FOR US, AND SAY, THERE IS NO
MERIT TO THIS -- BECAUSE,
THEY HAD ALL THIS STUFF
BEFORE AND, THEREFORE THIS
THING PRICECLUDED YOU KNOW
PROCEDURALLY!!$$!!!!!!!!!!!!!!!!!!!!!!
PROCEDURALLY, BUT -- IT
SEEMS LIKE TRYING TO GET A
HANDLE ON IT AT THIS STAGE
WITH ALL THE AMBIGUITIES, AS
FAR AS WHAT DEFENSE COUNSEL
HAD WHAT DEFENSE COUNSEL
DIDN'T HAVE AND THEN YOU
THROW INTO THE MIX THE MORE
SOPHISTICATED ANALYSIS OF
THE HAIR AND THE NOW THE
CHALLENGE TO WHETHER THE
OFFENSE TOOK PLACE IN THE
VAN, YOU ARE -- YOU ARE WE
ARE ALSO LOOKING FOR HELP IS
REALLY WHAT WE ARE LOOKING
FOR, HAVE HERE SO, YOU DON'T
THINK WOULD IT BE A BETTER
THING TO LET A JUDGE GET A
HANDLE ON THIS, AFTER SAYING
ALL RIGHT, PUT EVERYTHING
OUT THERE THAT YOU HAVE GOT,
AND I WILL I WILL CONSIDER
THEM?
>> FIRST OF ALL, BESIDES
THAT WE BELIEVE THE RECORD
THE DIRECT APPEAL RECORD
SHOWS IN TERMS OF THE TRIAL
ATTORNEY HAVING THIS, I
THINK JUSTICE WHEN YOU SAID
TO FLUSH THIS OUT AND I
THINK THIS COURT NEEDS TO
LOOK AT HOW THIS ISSUE IS
PLED.
AND -- MR. McCLAIN ISN'T
SAYING THAT AND I KNOW THAT
HE IS NOT REQUIRED TO -- TO
PRESENT AFFIDAVIT AFFIDAVITS
BUT THE HE IS NOT EVEN
BLEEDING THAT HE HAS SPOKEN
TO MR. MELIVINDAAND HE HAS
SAID HE HASN'T SEEN THIS HE
IS NOT SAYING THAT HE
ADVOCATE TO FRANK ZUCCARELLO
-- OR THAT HE SPOKE TO FRANK
ZUCCARELLO!!$$!!!!!!!!!!!!!!!!!!
ZUCCARELLO, AND THEY ARE
SAYING THAT THEY THOUGHT
THAT THEIR THAT HIS THE PLEA
AGREEMENT INCLUDED THIS, HE
IS NOT SAYING THAT, HE IS
NOT EVEN ALLEGING THAT PRIOR
-- CCR COUNSEL DIDN'T HAVE
THAT.
AND I THINK THAT THIS COURT
NEEDS TO -- I THINK I THINK
THAT IS EXTREMELY IMPORTANT.
AND I --
>> THAT IS WHAT I'M THINKING
WE'RE ALMOST, ALMOST OUT OF
TIME AND MAYBE COULD YOU
FOCUS ON THE HAIR.
>> OKAY.
>> WHICH IS NEW.
AND I THOUGHT WHAT
MR. McCLAIN WAS TRYING TO
GET AT IS HOW HE APPROACHES
CASES THAT YOUED THE HAIR
YOU HAD PETERS YOU HAVE MORE
QUESTION ABOUT THIS --
ZUCCARELLO!!$$!!!!!!!!!!!!!!!!!!
ZUCCARELLO, SO TELL US ABOUT
-- YOU KNOW THAT YOU CABINET
JUST LOOK AT ONE PIECE, AND
SAY --
>> NO YOU CAN'T I UNDERSTAND
THAT.
>> -- THE HAIR NOW TESTING
DO YOU AGREE CONCLUSIVELY
ESTABLISHES THAT ONE HAIR
THAT WAS SOMEWHAT OF A FOCUS
AT THE FIRST TRIAL, IS NOT
THE $$VICTIM'S?
>> OKAY LET'S START WITH
PETERS, YOU ASKED ME SO MANY
QUESTIONS FIRST OF ALL --
I'M GOING TO SAY.
>> IS THE HAIR NOW
CONCLUSIVE!!$$!!!!!!!!!!!!!!!!!!
CONCLUSIVELY ESTABLISHED NOT
TO BE $$VICTIM'S.
>> YES, THAT WASN'T WHEN
YOU SAY FOCUS OF THE TRIAL,
THE HAIR WAS BELOW SEIDEN
DID SAY THAT THERE WAS HAIR
THAT WAS CONSISTENT, THE
PROSECUTOR NEVER SAID THAT
IT WAS CONCLUSIVE, WHICH I
JUST WANT TO MAKE THAT
POINT.
IT IS CLEAR WHAT THEY WERE
TRYING TO SAY, THAT THIS
HAIR WAS CONSISTENT, IT
DIDN'T INCLUDED ANYBODY ELSE!!$$!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!IT
DIDN'T EXCLUDE ANYBODY ELSE
WAS LIMITED VOLUNTEER VALUE.
>> I SAID FOCUS -- SOME
PHYSICAL EVIDENCE.
>> OF COURSE, AND I WANTED
WAS THE ONLY FILL EVIDENCE,
I'M NOT HERE TO TELL YOU TO
MINIMIZE THAT IT WAS -- BUT.
>> WE NOW HAVE THAT.
>> WE HAVE THAT BUT WHAT WE
HAVE ALSO WE ARE FORGETTING
IS THAT THE DEFENDANT
ADMITTED, TO STARR BACK AND
ANGRILY GREEN ESPECIALLY TO
STARR PACK HE USED A VAN IN
THIS CASE MATTER OF FACT HE
TOLD THE POLICE WOULD HE
RIDE AROUND IN THE VAN, AND
LOOK FOR GIRLS, NOW --
>> YES BUT YOU HAVE GOT
ADDITIONAL EVIDENCE YOU HAVE
GOT NEW EVIDENCE THAT TIES
BACK INTO THE OWNER OF THE
VAN, NEGATING HAVING THE VAN
AT THAT TIME SO WOULD THAT
NOT BE EVALUATED TOGETHER?
>> THAT IS A
MISREPRESENTATION OF THE
RECORD.
>> ALL RIGHT.
>> AS A MATTER OF FACT FROM
THIS $$COURT'S OPINION, FROM
THE -- 717, THIS COURT, IN
THREE AREAS, OF THIS --
OPINION TALKS ABOUT THE WEAK
ALIBI THAT MARK PETERS, AND
HE AND BY THE WAY THAT IS
NOT EVEN AN ISSUE IN THIS
APPEAL BUT THERE WAS A WEAK
ALIBI RIVERA NEVER HAD AN
ALIBI FOR THE CRITICAL 30
MINUTES AROUND THE TIME OF
THE MURDER.
>> THAT IS WHAT WE SAID
POSTCONVICTION!!$$!!!!!!!!!!!!!!!!!!!!!!!!!!
POSTCONVICTION?
>> YES.
>> I GUESS WHAT MR. McCLAIN
THOUGH WANTS US TO DO IS SAY
LISTEN IT MAY BE WEAK THERE
BUT IF WE THEN AT THAT POINT
NEW THE HAIR WAS CONCLUSIVE!!$$!!!!!!!!!!!!!!!!!!
CONCLUSIVELY ESTABLISHED --
NOT TO BE $$VICTIM'S --
>> BUT --
>> HAVE SOMEBODY LOOK AT THE
WHOLE PICTURE NOW, TO SEE
WHETHER THAT WHOLE PICTURE
STARTS TO CAST SOME DOUBT AS
TO THIS -- DEFENDANT GUILTY
OR INNOCENCE.
>> -- GUILT OR INNOCENCE.
>> WHEN YOU DON'T HAVE MUCH
SEPARATELY IT IS EASY AND I
YOU NEED TO BALL IT WILL ALL
UP I'M ASKING THIS COURT TO
SEPARATE IT OUT, BECAUSE, IN
TERMED OF -- RIVERA$$'S USE OF
THE VAN, IN THIS CRIME, WE
HAVE HIS STATEMENTS, HIS
ADMITTED STATEMENTS TO
PEOPLE STARR PACK AND LANG
GREEN THAT HE USED THE VAN,
WE HAVE ALSO.
>> PART OF THOSE, OBSCENE
CALLS!!$$!!!!!!!!
CALLS.
>> YES.
>> OKAY.
>> WE ALSO HAVE TESTIMONY AT
TRIAL FROM TWO OTHER PEOPLE
THAT SAW HIM WITH THE VAN
THE DAY AFTER THE CRIME.
OKAY?
NOW IN TERMS OF THE
SIGNIFICANCE OF THE HAIR,
OKAY, THE HAIR WASN'T
STATIONY O'S BUT THIS ISN'T
A DA DNA CASE THIS COURT
ALSO HAS TO WRESTLE WITH THE
FACT THAT -- THAT IT MAY
IMPLICATE THE DNA MAY EXCUSE
ME IMPLICATE SOMEONE ELSE.
THIS ISN'T SEMEN FOUND THAT
BELONGS TO SOMEBODY ELSE
ISN'T HAIR IN HANDS MAYBE
DURING A STRUGGLE SHE -- IT
IS NONE OF THAT.
THE LACK OF THE HAIR ONLY
SAYS THAT THAT PIECE OF HAIR
IS NOT HERSELF, THAT DOESN'T
MAINTAIN THAT SHE WAS NOT --
IT DOESN'T MEAN --
>> THAT IS TRUE MY OWN
CONCERN MAYBE IT CAME FROM
AFTER THE THAT -- CONFESSION
FROM JONBENET RAMSEY JUST
BECAUSE SOMEONE MAKES
OBSCENE PHONE CALLS
FANTASIZES ABOUT SOMETHING
DOESN'T MEAN THAT PERSON IS
GUILTY$$!!!!ITY WHEN YOU TAKE THE
ONLY PIECE OF PHYSICAL
EVIDENCE YOU HAVE NOW JUST
PROVED THAT IT IS NOT THE
VICTIM'S AS -- I STARTED
PORTABLE JUROR -- REASONABLE
DOUBT AS TO THIS DEFENDANT'S
GUILT THAT IS MY CONCERN.
>> AND YOU ARE WITH THAT
CONCERN -- OUT --
>> I WILL GIVE YOU TIME TO
ANSWER IT IS AN IMPORTANT
POINT, RESPOND TO THAT,
PLEASE.
>> -- ADMITTED TO FIVE
PEOPLE OKAY, AND THREE OF
THEM WERE JAIL HOUSENANTS,
TWOO INFORMANTS, TWO STARR
PACK ANGELA GREEN HE TELLS
THEM DETAILS ABOUT THIS
CRIME, HE ALSO SAYS TO LANG
GREEN THAT HE WAS WEARING
PANTS YIE HOSE AT THE TIME
OF THE CRIME, PANTY HOSE AT
THE TIME OF CRIME WAS NOT IN
THE PAPER AS A MATTER OF
FACT COULDN'T HAVE KNOWN
THAT, UNTIL THEY FOUND THE
BODY, AT THE TIME THAT HE
SAID THESE STATEMENTS, THE
BODY WASN'T FOUND HE ALSO
SAID THAT HE USED ETHER THAT
ALSO COULD NOT HAVE BEEN IN
THE PAPER, BECAUSE AGAIN,
THEY HADN'T FOUND HER.
NOW -- THERE HAS NEVER BEEN
A TEST TO SEE IF THERE WAS
ETHER IN THE BODY BUT THE
MEDICAL EXAMINER SAID THAT
HE DID -- THAT HE DID SMELL
ETHER AND AGAIN WE GO BACK
TO THE VAN, HE TOLD, HE TOLD
STARR PACK HE USED THE VAN
HE SAID HE DRAGGED THE
VICTIM INTO THE VAN, STACY
HAD THERE WAS STRUGGLE TLEL
WAS A -- A GOOSE EGG SAYSED
BUFRN ON HER HEAD AGAIN THAT
IS NOT SOMETHING IN THE
PAPER BECAUSE THEY HADN'T
FOUND HER YET, OKAY SO, IN
TERMS OF YOUR CONCERN ABOUT
BEING A FALSE CONFESSION, I
THINK THERE IS ENOUGH
CREDIBLE EVIDENCE CONCERNING
THOSE TWO PEOPLE.
IN ADDITION TO THAT, AND
THIS COURT LAID NO IT THE
DIRECT APPEAL OPINION HIS
VERY INCRIMINATING
STATEMENTS TO THE POLICE
OFFICERS!!$$!!!!!!!!!!!!!!
OFFICERS, WHEN THEY TRIED TO
PUSH HIM THAT HIS ALIBI --
HIS ALIBI DIDN'T WASH, HE
DELAYED THAT WHETHER THEY
PUSHED HIM HE SAID I CAN'T
TELL YOU YOU WILL KILL ME I
CAN'T STOP MYSELF BUT ALSO
THIS COURT I ALSO FORGETTING
THE WILLIAMS RULE EVIDENCE
THAT THIS COURT FOUND
ADMISSIBLE IN THE DIRECT
APPEAL OPINION, TO THE
POINTED WHERE THAT IT WAS SO
SIMILAR THAT IT WAS PROPER
IDENTITY INFORMATION, THAT
HE ALMOST KILLED BUT FOR THE
FACT FIVE SECONDS LATER, A
PERSON CAME UPON JENNIFER
GETS SHE!!$$!!!!!!!!!!!!!!
GOETZ WOULD HAVE BEEN SECOND
I'M VERY IN THIS CRIME THIS
COURT ALSO IN ITS OPINION
DETAILED SIMILARITIES
BETWEEN THE TWO CASES SOCKS
WE HAVE MORE -- THERE IS
MORE HERE THAN A HAIR, WHICH
ALL THAT NEGATES THAT IS IT
WAS STACY -- IT DOESN'T
MAINTAIN THIS CRIME DIDN'T
HAPPEN IN THAT VANS, MATTER
OF FACT THE RECORD IS NOT
CLEAR WHEN THE VAN WAS
FINALLY IMPOUNDED BECAUSE,
AGAIN, MR. RIVERA WAS NOT
EVEN A SUSPECT UNTIL TWO
WEEKS AFTER THE CRIME
OCCURRED!!$$!!!!!!!!!!!!!!
OCCURRED.
SO IF YOU TAKE ALL THAT
INFORMATION!!$$!!!!!!!!!!!!!!!!!!!!
INFORMATION, INTO
CONSIDERATION!!$$!!!!!!!!!!!!!!!!!!!!!!!!
CONSIDERATION, I THINK THE
EVIDENCE IS OVERWHELMING.
I THINK THE FACT THAT IT
WASN'T HER HAIR -- ALL THAT
SAYS IT WASN'T HER HAIR IT
DOESN'T IT DOESN'T
DEMONSTRATE ANYTHING ELSE.
AND I THINK THIS COURT NEEDS
TO SEPARATE ALL THAT
INFORMATION OUT WHEN YOU ARE
LOOKING AT IT I THINK THE
TRIAL COURT WAS CORRECT, IN
FINDING THAT THE THAT THE
DNA ANALYSIS EXCUSE ME THAT
IT WASN'T HER HAIR WOULD NOT
HAVE MADE A DIFFERENCE AT
TRIAL, AND THIS PLEA
AGREEMENT WAS -- WAS KNOWN,
AND THE INFORMATION IN TERMS
OF THE INFORMANT STATUS WAS
KNOWN AT THE TIME OF THE
FIRST 3850.
IF THERE ARE NO FURTHER
QUESTIONS, I THANK YOU FOR
THE EXTRA TIME.
>> YES, MA'AM.
>> MR. McCLAIN.
>> I WILL TRY NOT TO TALK
TOO FAST.
SO IF FIRST, THE DETAILS
HAVE ALREADY, DETAILS IN THE
STARR PACK PHONE CALLS SAID
WERE NOT TRUE -- AND THE
DEFENSE FOCUSED ON, THE
BODY, DUMPED IN LAKE
OKEECHOBEE!!$$!!!!!!!!!!!!!!!!!!
OKEECHOBEE, WASN'T TRUE, A
BUNCH INFORMATION, IN THAT
PHONE CALL JUST WASN'T TRUE
THEY FACT THAT THERE WAS SO
SOME STUFF THE --
>> WHAT ABOUT THE FACT THAT
WERE TRUE, THAT HE COULDN'T
HAVE KNOWN, BECAUSE THEY
HADN'T BEEN PUBLISHED?
>>?
THE FACT THE -- TRUE OR HE
USED A BLUE VAN.
>> HOW ABOUT ET--
ETHREPRESENTATIVE!!$$!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
ETHREPRESENTATIVE.
>> OWNER OF THE BUY VAN
PAIRNTS HAD CAN HAVE PAINT
STUFF IN THERE.
-- PAINT STUFF IN THERE.
THAT IS THE ARGUMENT THAT
THERE IS ETHER THERE, MARK
SAYS HE COULDN'T HAVE HAD
THE VAN, SO IF HE MARK
PETERSED THE VAN HE COULDN'T
HAVE HAD THE PAINT THEN
YOUER IN THERE SUPPOSEDLY
ETHER.
>> EXPLAIN THE BRUSH ON THE
FAN THAT WAS SIMILAR TO THE
BRUSH WAS THAT NOT SOME
DEBRIS FOUND IN THE VAN
SIMILAR TO WHERE THE BODY
WAS?
.
>> THERE WAS -- SOME
REFERENCE TO THAT, BUT THEY
DIDN'T REALLY RELY ON THAT
JUST SAID THAT IT WAS, HAD
BEEN DRIVEN SOMEWHERE WOULD
HAVE GOTTEN -- THERE WAS NO
INDICATION THAT THIS WAS --
BRUSH TO THE SITE WHERE THE
BODY WAS FOUND, THE
PANTYHOSE!!$$!!!!!!!!!!!!!!!!
PANTYHOSE, THIS IS A DUMP,
THERE WAS LOTS OF TRASH
THERE.
THE FACT THAT THERE WERE
PANTY HOSE IN THE DUMP,
ISN'T REALLY THAT
SIGNIFICANT.
ALL THEY POINT IS THE
DEFENSE ATALKED ALL THIS
STUFF THE FACT THAT THERE
ARE SOME INCULL TORY
EVIDENCE -- INCULPATORY
EVIDENCE SO IF ONE QUICK
QUESTION AS FAR AS THE
ZUCCARELLO AND HIS COUNSEL,
HE WAS NOT -- BOTH OF THEM
WERE THEY NOT AVAILABLE TO
YOU OR YOUR PRIOR COUNSEL TO
TALK TO AND GET HE COPIES OF
PLEA AGREEMENTS, AND -- FIND
OUT EXACTLY WHAT WAS GOING
ON.
>> ZUCCARELLO IN 1959, 96
REFUSED TO TALK TO ANYBODY
FROM CCR IN THIS CASE OR ANY
OTHER CASE.
>> WHAT ABOUT HIS ATTORNEY
THAT WAS HIS ATTORNEY AT THE
TIME, HE WAS -- ON THIS PLEA
AGREEMENT.
>> -- ATTORNEY -- I'M SORRY
-- AND, SO, HE DID TALK TO
-- 595 -- REFUSED TO TALK TO
ANYBODY FROM CCR EVER SINCE.
>> OPPOSING COUNSEL SAYS
THAT THE THEME OF THE
ARGUMENT WITH REGARD TO THE
PLEA AGREEMENT LOOK AT THE
RECORD, THAT IT DEMONSTRATES!
DEMONSTRATES, THAT DEFENSE
COUNSEL DID HAVE THIS PLEA
AGREEMENT, SAYS THAT IS THE
THEME, SO WHAT IS ARE YOUR
RESPONSE TO THAT.
>> THE WORD -- AGREEMENT IS
BEING THIS ENTITLED -- IT IS
A PIECE OF PAPER, THERE WAS
A TRANSCRIPT OF A SENTENCING!!$$!!!!!!!!!!!!!!!!!!
SENTENCING, WHERE CERTAIN
INFORMATION THAT IS IN THIS
PIECE OF PAPER FROM --
POINTS NUMBER ONE, POINT
NUMBER TWO.
>> THAT IS FINE SO WHAT THEY
DID HAVE SOME OF THE GUTS OF
THAT BUT NOT THE ENTIRE
DOCUMENT AS WRITTEN, THAT
INCLUDES THE MATERIAL THAT
YOU BELIEVE TO BE VERY
IMPORTANT.
>> RIGHT THEY DIDN'T HAVE
THREE WHICH INDICATES THAT
YOU ARE GOING TO TESTIFY
WHEN SUBPOENAED COOPERATE
WITH ARGENTINE WITH -- THEY
DIDN'T HAVE THIS YOU HAVE
GOT PASS POLYGRAPH WHICH HE
FAILED AND YET THEY STILL
WENT FORWARD WITH THE PLEA
AGREEMENT, AND ALSO --
>> NOW SHE SAILS THAT DURING
THE HEARING, THAT THE
ASSISTANT STATE ATTORNEY
THAT HAD THIS FILE TESTIFIED
SPECIFICALLY ABOUT VYING
DOCUMENTS LISTED THE NUMBERS
OF THE CASES
>> WHAT SHE IS ARGUING THAT
IS STEVE EDGED BAILEY -- AT
CASE MANAGEMENT HEARING ON
WHEN OR NOT WOULD I GRANT
THE BE GRANTED AN
EVIDENTIARY HEARING SHE MADE
THE REPRESENTATION, THAT
THIS STUFF HAD BEEN TURNED
OVER.
>> RIGHT.
>> THAT IS NOT I MEAN I'M
ENTITLED TO EVIDENTIARY
HEARING ON THAT THERE IS NO
EVIDENCE OF THAT.
>> OKAY, JUST ASKING THE
QUESTION.
>> -- WASN'T PRESENTED IN
1959.
THESE -- JAIL RECORDS, THE $$
STATE'S POSITION IS THEY
WERE DESTROYED, THERE IS
BACK IN THE RECORD THEY
WOULDN'T TURN OVER ANY JAIL
RECORDS THIS STUFF THAT WAS
NOT HAD BEFORE THIS SHOWS
WHEN ZUCCARELLO WAS TAKEN
OUT!!$$!!!!
OUT, AND WHEN HE WAS
INTERVIEWED WHEN HE BECAME A
CONFIDENTIAL INFORMANT, ALSO
-- IN THE CASE -- DATED
APRIL 4TH CALLED APRIL 4,
1986 A CONFIDENTIAL
INFORMANT THE STATE WANTS TO
TAKE THAT BACK THE FACT THEY
WERE CALLING HIM AT THE
TIME, THE STATE ALSO MAKES
THE ARGUMENT THAT LAZ RUTH
IN ARGENTINE WERE INVOLVED
IN THE -- WEREN'T INVOLVED
IN THE REFERENCE TO THEM
ISN'T IMPORTANT, JUST NOT
TRUE, LAZ RUTH WAS THE
ORIGINAL PROSECUTOR -- CASE
HANDLING THIS CASE UNTIL
AFTER INDICTMENT, ARGENTINE
CORDING TO TESTIMONY OF
ZUCCARELLO WHO HE FIRST TOLD
IN APRIL SO THAT THIS
INTENTION HE DOESN'T COME
FORWARD UNTIL AFTER PLEA
AGREEMENT, THE PLEA IS
ENTERED IN JUNE, HE TALKS TO
-- IN JULY IS NOT TRUE.
--
>> WITH THAT I THINK THERE
IS NO FURTHER QUESTIONS WE
THANK BOTH OF YOU FOR
CLARIFYING MANY OF THE
ISSUES IN THE CASE, THE
COURT WILL TAKE ITS MORNING
RECESS!!$$!!!!!!!!!!
RECESS.
>> ALL RISE.,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,, #.