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Billy Leon Kearse v. State of Florida

SC05-1876 | SC06-942

NEXT CASE ON OUR CALENDAR
WILL BE KEARSE vs. STATE OF
FLORIDA.
>> FLY -- MY NAME THE PAUL
KALIL.
WITH ME IS CHRISTINA DIAZ,
YOUR FIRST APPEARANCE BEFORE
THE COURT.
>> WE OF COURSE
REPRESENTATIVE ON APPEAL
3.851 DENIAL AFTER AN
EVIDENTIARY HEARING.
I WOULD LIKE TO CONCENTRATE
THIS MORNING ON THE ARGUMENT
SURROUNDING AN EFFECTIVE
ASSISTANCE OF COUNSEL AT THE
PENALTY PHASE.
THERE'S TWO PRONGS
ESSENTIALLY TO THAT WHICH
HAVE TO DO WITH THE
PRESENTATION OF MENTAL
HEALTH AND ALSO CHALLENGING
THE STATING A GREAT
AGGRAVATING CIRCUMSTANCE OF
THE VICTIM BEING A POLICE
OFFICER AND HIS LAWFUL
DUTIES.
WITH REGARD TO THE
INEFFECTIVE ASSISTANCE OF
MENTAL HEALTH PRESENTATION
OF MITIGATION, THERE'S
ESSENTIALLY TWO PRONGS
THERE.
THERE'S NO QUESTION THAT
SOME MITIGATION WAS
PRESENTED.
THE DISTURBING FACTOR THAT I
FIND HERE IS THAT AFTER THE
MITIGATION IS PRESENTED
TRIAL COUNSEL THEN
DIMINISHES ALL OF THAT IN
HIS CLOSING ARGUMENT BY
CALLING IT PSYCH OBABBLE
TELLING THE JURY HE DOESN'T
UNDERSTAND WHAT MY OF THAT
MEANS AND THE JURY PROBABLY
SHOULDN'T UNDERSTAND IT
EITHER.
I THINK IN THE EVIDENTIARY
HEARING, WE DISCOVERED THAT,
IN FACT THE TRUE.
TRIAL COUNSEL DIDN'T HAVE
THE NECESSARY KNOWLEDGE AND
EXPERTISE IN THE MENTAL
HEALTH MITIGATION AREA TO
PRESENT IT TO THE JURY.
HE DIDN'T PREPARE HIS
EXPERTS PROPERLY.
AND AS A RESULT MR. KEARSE
PREJUDICE -- I THINK A GOOD
EXAMPLE OF THAT IS RELYING
ON HIS EXPERT NEUROFARM CALL
GIST TO TRY TO PRESENT
PERSONALITY TEST DATA.
HE SAID IN CLOSING ARGUMENT
BEFORE THE JURY HE DIDN'T
KNOW THE DIFFERENCE BETWEEN
AN INTELLIGENT TEST AND
PERSONALITY TEST.
HE DID RETAIN THE SERVICES
OF NEUROFARM CALL GIST TO
PRESENT EVIDENCE OF FETAL
ALCOHOL EFFECT AND THEN
HAVING NOT DONE THE
NECESSARY INVESTIGATION AND
CONTACTING EXPERTS IN
PERSONALITY ASSESSMENT
ATTEMPTED TO GET DATA
THROUGH THE
NUEROPHARMOCOLOGIST --
>> WAS THAT SUSPECTED OR WAS
THERE OBJECTIONS TO THAT IN
A RULING THAT THIS COULDN'T
BE ACCEPTED?
>> THERE WAS AN OBJECTION
AND THE
NEUROPHARMOQ -- COLOGITS WAS
THREATENED WITH SANCTION AND
POSSIBLE PROSECUTION FOR
PRACTICING WITHOUT A
LICENSE.
THE EVIDENCE DID COME IN.
BUT IT THE PHARMOCOLOGIST IN
A TENABLE POSITION AND THE
STATE WAS ABLE TO CAPITALIZE
QUICKLY ON THE FACT THAT HE
WAS REALLY TESTIFYING IN AN
AREA WHERE HE WAS RELYING ON
AN EXPERT OF ANOTHER
DISCIPLINE AND HE HAD NO
KNOWLEDGE HIMSELF.
HE'S NOT IN THE POSITION TO
PERFORM PERSONALITY TESTING
OR ANY PSYCHOLOGICAL TEST OF
THAT NATURE.
AND IT'S VERY CLEAR THAT IN
CLOSING ARGUMENT THE STATE
WAS ABLE TO CAPITAL
ICE -- CAPITALIZE VERY
HEAVILY ON THAT.
>> WAS HE ATTEMPTING TO TAKE
THE INFORMATION FROM THE
PERSONALITY TEST AND PUT IT
WITH THE USE OF THE ALCOHOL
SYNDROME TEST?
IS THAT HOW THE
PHARMOCOLOGIST USED THIS
INFORMATION?
>> I THINK THE
PHARMOCOLOGIST.
MR. UDEL TESTIFIED THE
REASON HE HAD THE
PHARMOCOLOGIT TESTIFY FROM
THE DAD OEU OF THE MMPI THAT
WAS THE WAY HE WAS GOING TO
GET IT IN.
AND THERE WAS NO NEED TO
CALL THE NEUROPSYCHOLOGIST
TO TESTIFY ABOUT THE DATA
BECAUSE HE COULD GET IT
THROUGH THE PHARMOCOLOGISF.
THAT'S NOT AN EFFECTIVE USE
OF YOUR EXPERT.
IT OPENS UP YOUR EXPERT TO
CROSS-EXAMINATION AND A
THREAT OF A CRIMINAL
SANCTION.
>> YOU REMEMBER THE
NONSTATUTORY MITIGATING
CIRCUMSTANCES FOUND BY TRIAL
JUDGE AND DID IT INCLUDE
THAT KIND OF INFORMATION.
THE INFORMATION THAT CAME IN
ABOUT THIS AND THE
PERSONALITY TEST.
>> YES.
THERE WAS AT TRIAL THE TRIAL
COURT DIDN'T GIVE A LOT OF
WEIGHT TO THE MENTAL HEALTH
MITIGATION THAT WAS
PRESENTED.
THE NONSTATUTORY MITIGATION.
>> BUT HE DID --
[INAUDIBLE]
THERE WERE A NUMBER OF FACT
CONSIDERED IN MITIGATION.
I THINK IT'S RELEVANT IN THE
ORDER DENYING THE 3.850 FOR
THE 3.851, THE TRIAL COURT
I'M SORRY I'M DRAWING A
BLANK.
THE -- WITH REGARDS.
>> THAT HAPPEN TO ALL OF US.
CATCH YOUR THOUGHTS AND.
>> THANK YOU I APPRECIATE
THAT.
I THINK SHE'S GOING TOWARD
THE DIRECTION OF THAT SOME
OF US THIS STUFF DID COME IN
AND THE QUESTION THAT REALLY
HELPS THE COURT WHEN WE'RE
LOOKING AT THESE KINDS OF
THINGS IS THAT WAS THERE
SOMETHING QUALITATIVELY
DIFFERENT THAT WAS AVAILABLE
THAT SHOULD HAVE BEEN
BROUGHT IN THAT WAS
DISCUSSED AT THE EVIDENTIARY
HEARING THAT PUTS THIS CASE
IN A DIFFERENT LIGHT KIND OF
THING.
>> THANK YOU.
>> DOES -- DOES THAT JOG YOU
A LITTLE BIT.
>> ABSOLUTELY.
I THINK THERE WERE SEVERAL
AREAS PRESENTED A TT
EVIDENTIARY HEAR.
NUMBER ONE IS ACCESS ONE
DIAGNOSIS OF POSTTRAUMATIC
STRESS DISORDER.
YOU MAY RECALL AT THE
PENALTY PHASE A SOCIAL
WORKER BY THE NAME OF PAMELA
BAKER TESTIFIED THAT
MR. KEARSE SHOWED SIGNS OF
POSTTRAUMATIC STRESS
DISORDER.
THIS WAS NEVER FOLLOWED UP
BY COUNSEL OR EXPERT.
>> SO THERE WAS SOME
EVIDENCE NOT JUST DEVELOPED.
>> IT WAS COMPLETELY NOT
DEVELOPED.
IT WAS MERELY HE SHOWS SIGN
OF POSTTRAUMATIC STRESS
DISORDER.
DR. DUDLEY AT THE
EVIDENTIARY HEARING
TESTIFIED THAT MR. KEARSE
DOES SUFFER FROM
POSTTRAUMATIC STRESS
DISORDER BASED ON THE ABUSE
AND NEGLECT SUFFERED IN
CHILDHOOD THAT CARRIES OVER
INTO ADULTHOOD AND THAT TIES
INDIRECTLY WITH THE
CIRCUMSTANCES OF THE
OFFENSE.
>> SO YOU GOT THAT ONE.
ARE THERE ANY OTHER THAT ARE
QUALITATIVELY DIFFERENT?
>> IN A SIMILAR THERE'S
ATTENTION DEFICIT
HYPERACTIVITY DISORDER
DIAGNOSED IN CHILDHOOD AND
CARRYING TO ADULTHOOD AND
THAT WAS BACKED UP BY
DR. DUDLEY.
THAT GOES TO THE
CIRCUMSTANCES OF THE
OFFENSE.
>> NOT DEVELOPED AGAIN
DURING TRIAL.
>> CORRECT.
TRIAL COUNSEL SEEMED TO
FOCUS ON DR. LIPMAN THE
PHARMACALL GIST.
IT'S CLEAR THAT THE DIDN'T
KNOW WHAT FETAL ALCOHOL
EFFECT REALLY WAS.
HE TESTIFIED AT THE
EVIDENTIARY HEAR HE THOUGHT
FETAL ALCOHOL EFFECT WAS A
TERM THAT DR. LICHTMAN MADE
UP.
AND I THINK THAT THE OTHER
DOCTORS AT THE EVIDENTIARY
HEARING WERE ABLE TO
ESTABLISH IT WHILE IT'S NOT
LISTED IN THE DSM AS A
RECOGNIZED DISORDER IT'S A
DISORDER THAT'S PART OF THAT
SPECTRUM OF DISORDERS
INVOLVING PRENATAL ALCOHOL
INSULT.
>> LET ME TELL YOU WHERE MY
PROBLEM IS.
BECAUSE I JOINED IN A
DISSENT IN THE MAIN CASE.
AND IF YOU -- WHEN YOU READ
JUSTICE -- I THINK IT WAS
JUSTICE ANSTEADS' DESCENT IT
GOES THROUGH IN GREAT DETAIL
VERY IMPRESSIVE MENTAL
HEALTH MITIGATION AND I'M
HAVING TROUBLE
SQUARING -- YOU KNOW WHEN I
THINK OF ALL OF OUR CASES
THAT HAVE AS FAR AS WHAT IS
REASONABLY EFFECTIVE COUNSEL,
IT SEEMS LIKE THERE WAS,
AGAIN AN AWFUL LOT OF MENTAL
HEALTH MITIGATION PRESENTED.
NOW WHETHER IT COULD HAVE
BEEN PRESENTED BETTER THAT
WE START TO GET INTO SHADES
THAT ARE VERY DIFFICULT AND
TO SAY WELL NOW OR
CONFIDENCE IS UNDERMINED
WHEN YOU GOT CLEARLY AT
LEAST AGAIN ENOUGH FOR
JUSTICE ANSTEAD TO SAY THIS
IS VERY SUBSTANTIAL MENTAL
HE -- HEALTH MITIGATION THAT
SHOULD HAVE EITHER THAT
WARRANTED YOU KNOW AN
IMPOSITION OF A LIFE
SENTENCE.
HOW DO YOU SQUARE THAT AND
TO SAY WELL, MAYBE A LITTLE
BIT -- I FEEL LIKE YOU SAY,
WELL HE HAD JUST DONE MORE
ON POSTTRAUMATIC STRESS
DISORDER AND THAT WOULD
HAVE -- ARE WE GOING TO SAY
THERE WOULD HAVE BEEN A
STATUTORY -- STATUTORY
MITIGATING CIRCUMSTANCE
FOUND THAT JUST WAS NOT
FOUND.
AND SO AGAIN TELL US IN
TERMS OF THE CASES THAT WE
HAVE HAD.
>> UH-HUH.
>> IS THIS SIMILAR TO ANY
CASE THAT WE WE REVERSED FOR
A NEW PENALTY PHASE BASED ON
THIS LEVEL OF PRESENTATION
OF MENTAL HEALTH MIT TPAEUGS.
>> THERE'S A COUPLE OF
ASPECTS TO THE QUESTION.
I THINK THE PRESENTATION OF
THE MITIGATION EVIDENCE AT
THE SECOND PENALTY PHASE WAS
SUCH THAT EFFECTIVE I WILL
BEFORE THE JURY -- EFFECTIVELY
BEFORE THE JURY THERE WAS
NOTHING THERE.
I SAY THAT BECAUSE THEY MADE
NO TO PREPARE FOR DOCTOR
MARTEL.
HE TESTIFIED TO ALL SORTS OF
THINGS THAT TRIAL COUNSEL
COULD NOT HAVE KNOWN BECAUSE
HE HADN'T DONE ANY SORT OF
RESEARCH OR DISCOVERY ON
WHAT DR. MARTEL WOULD
PRESENT.
AS A RESULT MARTEL WAS HELD
UP AS BEING A VERY POLISHED
AND EXPERIENCED EXPERT AND
MR. UDEL WAS LEFT CONCEDING
THIS IS PSYCHO BABBLE THAT
WHAT HE'S PRESENTING HE
DOESN'T UNDERSTAND.
>> LET'S TALK THE PSYCHO
BABBLE IN CONTEXT.
>> SURE.
>> THERE WERE EXPERTS ON
BOTH SIDES AT THE PENALTY
PHASE; RIGHT.
>> CORRECT.
>> AND HIS DESCRIPTION OF
THE TESTIMONY AS PSYCH
OBABBLE DIDN'T HE SAY BUT IF
YOU WILL -- IF YOU WILL
BELIEVE THE STATE'S EXPERT
YOU HAVE TO BELIEVE OUR
EXPERT.
>> YES.
THAT'S IN THE CONTEXT OF
TELLING THE JURY THAT HE
DOESN'T UNDERSTAND ANY OF
THIS.
>> DON'T A LOT OF ATTORNEY
DOS THAT TO THE JURY YES I
TO DEVELOP A REPORT WITH THE
JURY AND SAY I'M LIKE YOU.
I KNOW IT'S HARD TO
UNDERSTAND.
I DON'T UNDERSTAND IT VERY
WELL.
BUT THIS IS WHAT THEY SAID.
THINGS LIKE THAT.
>> WE -- WITH RESPECT TO
MR. UDEL IN THIS CASE I
THINK THAT WAS THE
SITUATION.
>> AND ISN'T THAT PROPER
STRATEGY.
WHAT ARE YOU SAYING IS THE
SITUATION HE DIDN'T
UNDERSTAND.
>> REALLY DIDN'T UNDERSTAND
IT.
DIDN'T HE SAY HE REALLY
DIDN'T UNDERSTAND IT.
>> ESSENTIALLY YES.
WHEN HE QUESTIONED HE DIDN'T
KNOW THE DIFFERENCE BETWEEN
THE PSYCHIATRIST AND
PSYCHOLOGIST.
HE DIDN'T THE BASIC TESTMENT
THAT ARE USED THE MM PEU, TO
WEXLE -- XE -- WEXLER ADULT
INTELLIGENCE SCALE.
HE DIDN'T KNOW WHAT THEY
WERE.
IT'S EASY TO MAKE A DECISION
BASED ON EXPERTISE.
BUT ANOTHER THINGS TO PUT
WITNESSES NOT HAVING FULL
UNDERSTANDING OF WHAT THEY
WILL TESTIFY TO AND THEN
BEING EVISCERATED BY THE
STATE'S EXPERT WITNESS AND
HAVING TO CONCEDE TO THE
JURY THAT YOU DON'T REALLY
UNDERSTAND THE STUFF
YOURSELF.
>> ONE OF THE TRIAL JUDGE
WHO HEARD THE EVIDENTIARY
HEARING IN THIS CASE, WHAT
WAS HIS EVALUATION OF
MR. UDEL AND WHETHER THIS
STRATEGY OR HOW DID HIS
EVALUATE IT?
>> ONE THING THAT REALLY
STANDS OUT THE TRIAL COURT
FOUND THAT THE DECISION
SO-CALLED DECISION NOT TO
NOT DEPOSE THE STATE'S
EXPERT WAS A REASONABLE
STRATEGY DECISION.
I DON'T SEE HOW THAT COULD
BE.
I MEAN TO NOT DO DISCOVERY
AND FIND OUT WHAT THE
STATE'S EXPERT.
>> WHAT DID MR. UDEL SAY WHY
HE DIDN'T
DESUPPOSE -- DEPOSE THE
STATE'S REBUTTAL EXPERT?
>> HE SAID AND THIS IS ALL
IN THE BRIEF AND RECORD,
OBVIOUSLY.
HE SAID THAT HE DIDN'T FEEL
IT WAS NECESSARY TO DEPOSE
THE WITNESS BECAUSE HE KNEW
WHAT THE WITNESS WAS GOING
TO SAY BECAUSE THEY ALL SAY
THE SAME THING.
AND HE WAS FAMILIAR WITH THE
WITNESSES' ASSOCIATE
DR. DEITZ WHO ESSENTIALLY
ALWAYS SAYS THE SAME THING.
HE TOOK IT TO MEAN THAT HE
JUST ASSUMED THAT IN BILLY
KEARSE'S CASE HE WOULD SAY
THE SAME THING.
>> HE SPOKE TO THE
PROSECUTORS?
>> HE SAID HE SPOKE TO THE
PROSECUTORS.
>> IS IT NOT UNCOMMON IF THE
PROSECUTOR AND THE DEFENSE
ATTORNEY HAVE A GOOD
RELATIONSHIP THAT IN
THE -- BECAUSE OF THE HORSE
TIME FRAME HERE THEN THE
TRIAL JUDGE FIND THAT WAS
REASONABLE UNDER THE
CIRCUMSTANCES?
>> WELL, AT -- ON THE DIRECT
APPEAL THIS COURT FOUND THAT
WAS AT THE TIME FRAME WAS
REASONABLE AND THAT THE
STATUTE PROVIDED OR THE RULE
PROVIDES FOR A SHORT TIME
FRAME.
WITH REGARD TO THE
RELATIONSHIP BETWEEN THE
ATTORNEYS, SURE, THAT WOULD
BE ACCEPTABLE FOR SOME
WITNESSES.
I THINK IN THE CIRCUMSTANCE
OF VERY COMPLEX TESTIMONY
INVOLVING MENTAL HEALTH,
MENTAL HEALTH INSTRUMENT
ESPECIALLY IN AREA WHERE
MUDEL DIDN'T HAVE THE
EXPERTISE THAT HE REQUIRED.
DOESN'T HE -- WASN'T THERE
THE MR. MARTEL'S
DR. MARTEL'S BROAD DATA
GIVEN TO HIM AND FORWARDED
THAT TO HIS EXPERT?
ISN'T THERE TESTIMONY TO
THAT EFFECT HERE, ALSO?
>> DR. MARTEL --
>> YOU'RE TALKING ABOUT HIM
NOT HAVING EXPERTISE IN
THESE PARTICULAR AREAS.
AND YOU KNOW, A LOT OF
LAWYERS DON'T.
BUT AS -- IF HE FORWARDED TO
EXPERTS TO LOOK AT THEM
DOESN'T THAT MAKE A
DIFFERENCE HERE?
>> DR. MARTEL'S DATA WAS
LIMITED.
HE DIDN'T PERFORM ANY
TESTING HIMSELF IN.
THE STATE'S EXPERT DIDN'T
PERFORM A LOT OF TESTING.
WHAT HE HAD WHICH WAS VERY
VALUABLE, I THINK WAS A
VIDEOTAPE OF THE EXAMINATION
THAT DR. MARTEL HAD
PERFORMED.
WHICH HE NEVER BOTHERED TO
GET AND NEVER BOTHERED TO
GIVE TO HIS EXPERT WHO COULD
VIEW IT TO SEE WHAT
DR. MARTEL'S TECHNIQUES
WERE.
AND THERE WAS EVIDENCE OR
TESTIMONY THAT, THAT THE
EVIDENTIARY HEARING OF THE
APPROPRIATENESS OF THAT.
I DON'T RECALL THERE BEING
ANY SPECIFIC DATA THAT WAS
EXCHANGED.
THERE WAS DATA THAT WAS
PROVIDED TO DR. MARTEL AND
YOU LYED UPON IN FORMING HIS
OPINION.
>> YOU ARE INTO YOUR
REBUTTAL.
YOU ONLY HAVE FOUR MINUTES.
USE YOUR TIME AS YOU WISH.
>> I WILL SAVE OF -- THE
REST OF MY TIME FOR
REBUTTAL.
THANK YOU.
>> I GUESS I SHOULD SAY
WELCOME BACK.
MAY IT PLEASE THE COURT
LESLEY CAMPBELL WITH THE
ATTORNEY GENERAL'S OFFICE ON
BEHALF OF THE STATE IN THIS
IS AS JUSTICE PARIENTE
MENTIONED ONE OF THE BEST
LITIGATED CASES FOR A
PENALTY PHASE.
I DIDN'T QUITE SAY THAT.
LAUGH I'M SORRY YOUR HONOR.
I'M PUTTING IN THE BEST
LIGHT FOR THE STATE.
MR. UDEL DID EVERYTHING.
HE PUT ON SOME -- HE RAISED
SOME 40 DIFFERENT AREAS --
>> DID HE NOT KNOW THE
DIFFERENCE BETWEEN A
PSYCHIATRIST AND A
PSYCHOLOGIST?
>> KNOWS THE DIFFERENCE IS A
CORRECT REPRESENTATION?
>> I THINK HE MAY HAVE
CONFUSED THEM IN TESTIFYING.
BUT MR. UDEL HAS BEEN DOING
THIS SINCE 1980 HE KNOWS
MENTAL HEALTH EXPERTS AND
ALL OF THIS AREA VERY, VERY
WELL.
HE'S.
>> DID YOU ANSWER JUSTICE
ANSTEAD'S QUESTION.
>> HE DID.
HE CONFUSED IT IN HIS
TESTIMONY.
BUT HE IS I THINK THAT WAS
MORE OF A MISSTATEMENT THAN
A CONFUSION.
HE IS AS I SAID HE'S BEEN
DOING THIS SINCE 1980 --
>> CAN I SAY ALONG THAT LINE
NO QUESTION HE'S BEEN DOING
IT A LONG TIME.
AND SUGGEST HE'S A PREMIER
LAWYER IN HIS AREA.
AND I DON'T KNOW WHO ELSE IS
THERE SO THAT DOESN'T
NECESSARILY SAY THAT MAKES
HIM EFFECTIVE.
WHAT ABOUT FETAL ALCOHOL
SYNDROME?
DID HE NOT KNOW THAT, THAT
WAS A VERY WELL RECOGNIZED
SYNDROME, THAT IS NOT JUST
MADE UP IN THIS CASE?
DID HE SAY SOMETHING ABOUT
THAT?
>> HE SAID HE WAS TRYING TO
GET FETAL ALCOHOL SYNDROME
BROUGHT IN.
HOWEVER, THERE WAS NOT
ENOUGH EVIDENCE TO SUPPORT
THAT.
AND THAT'S WHAT DR. LICHTMAN
SAID.
HE NEVER SAID HE DIDN'T KNOW
IT WAS A REALLY SYNDROME
THAT HE DIDN'T UNDERSTAND --
>> HE UNDERSTOOD FETAL
ALCOHOL SYNDROME WAS
SOMETHING THAT WAS WELL
RECOGNIZED.
WHAT THEY -- WHAT
DR. LICHTMAN AND
DR. -- MR. UDEL WERE DOING
WERE THEN SAYING SINCE WE
CAN'T PROVE THIS HIGH FETAL
ALCOHOL SYNDROME WHAT'S THE
NEXT THING LOWER.
THAT'S FETAL ALCOHOL EFFECT.
AND IN FACT, THE DEFENSE
DOCTORS IN THE EVIDENTIARY
HEARING SAY IT'S STILL
DISCOUNT THE FETAL ALCOHOL
EFFECT BUT THEY RECOGNIZE
THE FETAL ALCOHOL SYNDROME.
>> WHERE THERE STATUTORY
MITIGATORS FOUND IN THIS?
BUT NOT IN THE -- WHAT
IMPRESSES ME ABOUT
POSSIBILITY OF -- AGAIN, I
WHEN YOU LOOK AT JUSTICE
ANSTEAD'S DECENT CLEARLY
THERE WAS A LOT LOT
PRESENTED BECAUSE THERE WAS
ENOUGH FOR THE THREE
JUSTICES THAT THERE WAS
SUBSTANTIAL INFORMATION.
WE'RE LOOKING AT IT WHAT WE
KNOW ABOUT IN TERMS OF
PRESENTING TO THE JURY HOW
POWERFUL WAS THIS
POSTTRAUMATIC STRESS
DISORDER.
HE WAS 18 AT THE I'M.
WHAT HE HAD BEEN THROUGH IN
CHILDHOOD AND WHETHER SOME
HOUSE -- HOW THIS WAS
TRIGGER IN WHETHER THE NEW
EVIDENCE PRESENTED WOULD
HAVE SUPPORTED A STATUTORY
MITIGATOR IN ADDITION QUITE
POWERFUL FOR THE JURY KWROEU
TO HEAR A CONNECTION BETWEEN
WHAT HAPPENED AS THEY WERE
GOING ON AND WHAP ANED I WAS
THINKING OF THAT CASE WHERE
THERE'S A WOMAN WHO THOUGHT
SHE WAS BEING ATTACKED.
SHE WAS ACTUALLY ABUSED.
WHAT IS THE QUALITATIVE -- YOU
SEE THE SAME PRESENTATION
WRAPPED UP DIFFERENTLY AND
CAN YOU TELL US WHETHER YOU
SEE HONESTLY YOU HAVE BEEN
HERE AND I KNOW YOU THAT YOU
WITH US ANY QUALITATIVE
DIFFERENCE?
>> BETWEEN THE EVIDENTIARY
HEARING TESTIMONY AND THE
TESTIMONY THAT WAS GIVEN AT
THE SECOND PENALTY PHASE, I
WOULD SAY THERE ISN'T REALLY
ANYTHING QUALITATIVELY
DIFFERENT THAT WOULD HAVE
SWAYED ANYONE TO GIVE ANY
MITIGATION OR TO -- AND THAT
REALLY ISN'T THE STANDARD.
IT WOULD BE TO ACTUALLY GET
A LIFE SENTENCE.
>> OPPOSING COUNSEL SAID IT
WAS JUST MENTIONED NO
DEVELOPMENT AT ALL.
WE WILL NOT FIND THAT?
>> YOU ARE GOING TO FIND IN
THE RECORD FROM THE PENALTY
PHASE DISCUSSION OF
MR. KEARSE'S PANIC OR HE
DOESN'T RESPOND WELL UNDER
STRESS.
YOU WILL FIND A LOT OF THAT
INFORMATION IN THERE.
THAT WAS THE DEFENSE.
>> WE ARE GOING TO FIND --
>> 12 SECONDS OF PANIC.
>> ARE WE GOING TO FIND THE
POSTTRAUMATIC STRESS
SYNDROME THE DISCUSSION OF
THE SCIENCE OF THAT, WAS
THAT PRESENTED AT THE TRIAL
OR WAS IT NOT AS YOUR
OPPOSITION -- I WASN'T
PRESENTED.
>> IT WASN'T PRESENTED AS
POSTTRAUMATIC STRESS.
>> IT WASN'T.
>> AND WASN'T PRESENTED AS
THE -- WHAT IS ADHD.
HIS ATTENTION DEFICIT.
WASN'T PRESENTED IN THOSE
TERMS.
BUT YOU HAVE ALL OF THAT
INFORMATION WITHIN THE
RECORD.
YOU KNOW THAT HE'S -- HE
REACTS POORLY UNDER STRESS.
YOU HAVE ALL OF THAT
UNDERLYING INFORMATION.
YOU ALSO HAVE DR. PETRILLA
WHO SPENT OVER 20 HOURS WITH
THE TKFT.
THIS IS HIS SECOND GO
AROUND.
HE TESTIFIED IN THE 1991
TRIAL.
>> BUT DID HE TESTIFY AT THE
TRIAL TO A STATUTORY
MITIGATOR?
>> BOTH MITIGATORS.
>> AND IT WAS JUST THAT WE
DON'T KNOW OF COURSE WHAT
THE JURY DECIDED.
BUT THE TRIAL JUDGE IN HIS
SENTENCING ORDER JUST DIDN'T
FIND IT.
DID HE NOT FIND IT.
>> HE DID NOT FIND.
>> DID HE EXPLAIN WHY?
>> YES, HE DID.
WHAT HE SAID WAS THAT IF YOU
WILL READ THE DISCUSSION OF
THE TWO MENTAL MITIGATORS,
THEY WERE DISCOUNTED BECAUSE
OF HIS -- BECAUSE OF
MR. KEARSE'S ACTION THAT
NIGHT MORE THAN I WILL
BELIEVE ONE EXPERT OVER
ANOTHER EXPERT.
THE TRIAL COURT SAID I
AGREE.
MR. KEARSE HAS HAD A
TERRIBLE LIFE.
BUT IT DOESN'T RISE
TO -- ALL OF THESE THINGS
DON'T RISE TO THE LEVEL OF,
DREAM OR MENTAL DISTURBANCE.
ALL OF HIS ACTION BOTH
BEFORE AND AFTER THE CRIME
WERE VERY METHODICAL.
SO AGAIN IT'S NOT THAT HE
COULDN'T CONFORM HIS CONDUCT
TO THE REQUIREMENTS OF LAW.
KNEW EXACTLY WHAT HE WAS
DOING BOTH BEFORE AND AFTER.
HE WAS AWARE THAT THERE WAS
A WARRENT OUT FOR HIS
ARREST.
>> HE DIDN'T WANT TO BE
ARRESTED.
HE GAVE THREE FALSE NAMES.
AND EVEN THOUGH HE WAS GIVEN
THREE OPPORTUNITIES TO JUST
TKEUF HIS NAME AND I'LL GIVE
YOU A TICKET.
THAT'S WHAT THE OFFICER
SAID.
AS FAR AS THE EXTREME MENTAL
OR EMOTIONAL DISTRESS AGAIN
HE ACTED VERY CALMLY WITH
THE OFFICER UP UNTIL THE
TIME THE OFFICER WAS GOING
TO ARREST HIM AND THEN HE
WENT FOR THE RO'S GUN, SHOT
HIM 13 -- OFFICERS GUN AND
SHOT HIM 13 TIMES THERE WERE
SPACES IN BETWEEN THOSE
SHOTTINGS AND THEN DROVE OFF
AND HIT THE CAR, HID THE GUN
WHEN HE WAS ARRESTED HE LYED
TO THE POLICE, ALL OF
MR. KEARSE'S ACTIONS
UNDER -- UNDERCUTS
COMPLETELY THOSE MENTAL
MITIGATORS.
SO IT'S COME IN NOW AND SAID
HE HAS ATTENTION DEFICIT
DISORDER OR POSTTRAUMATIC
DISTRESS.
THAT'S NOT GOING -- THAT'S
NOT GOING TO UNDERCUT HIS
ACTUAL ACTION ON THE NIGHT
OF THE CRIME.
AS FAR AS MR. UDEL'S USE OF
PSYCHO BABBLE.
MR. UDEL ON 2658 SAID, FOR
THE RECORD THIS IS NOT
PSYCHO BABBLE.
AND -- AND IT'S ONLY WHEN HE
WAS TRYING TO SAY, WELL YOU
KNOW ALL OF THESE NUMBERS
FROM THE -- FROM ALL OF THE
TESTING IF YOU WANT TO
CONSIDER IT PSYCHO BABBLE.
MR. UDEL HAS BEEN DOING THIS
FOR MANY YEARS HE
UNDERSTANDS THE JURY I -- JURY
IN INDIAN RIVER COUNT.
HE TRYING TO BUY INTO
MITIGATION.
HE SAYING IF YOU DON'T
BELIEVE MY EXPERT, THEN YOU
CAN'T BELIEVE THEIR EXPERT.
WHAT MR. UDEL HAD THAT THE
STATE DIDN'T HAVE HE ALSO
HAD PAMELA BAKER, HER
HUSBAND AND THERE WERE TWO
OTHER TEACHER PRINCIPAL
FIGURES IN THERE THAT GAVE A
HISTORY FOR MR. KEARSE THAT
DID SUPPORT HIS MENTAL
HEALTH EXPERT.
IT WASN'T THAT MR. UDEL WAS
RELYING NEARLY ON ONE OR TWO
MENTAL HEALTH EXPERTS.
HE HAD DR. PETRILLA WHO ALSO
HAD ACCESS TO HIS WIFE'S
MENTAL HEALTH REPORT OF
MR. KEARSE WHEN HE WAS NINE
OR TEN.
THAT INFORMATION CAME OUT.
ALSO DR. DESIDES INFORMATION
WHEN HE EVALUATED
MR. KEARSE.
THAT WAS BROUGHT OUT.
THE MMPI WAS BROUGHT OUT
THROUGH MR. DR. PETRILLA.
>> IS DOCTOR PETRILLA WHAT
IS HIS AREA OF EXPERTISE?
>> HE WAS A PSYCHOLOGIST.
>> WHO WAS A
NEUROPHARMOCOLOGIST.
>> I CAN'T REMEMBER WHAT
OTHER AREA HE WAS INTERESTED
IN.
HE WAS TRYING TO GET
INFORMATION TO CONFIRM.
TRYING TO GET INFORMATION
FROM DR. PETRILLA WHAT THE
MMPI MEANT.
I BELIEVE IT WAS THE CASE
INVOLVED IN THAT.
AND DR. PETRILLA WASN'T ABLE
TO SUPPORT THAT.
IT WASN'T ABLE TO GIVE THOSE
ANSWERS.
SO DR. LICHTMAN WENT OUT AND
HE CONTACTED THREE OTHER
EXPERTS.
DR. LEVINE, DR. RUMCOUGH AND
DR. FRIEDMAN.
AND DR. FRIEDMAN TESTIFIED
AT THE EVIDENTIARY HEARING.
THE BOTTOM LINE OF THIS, ALL
OF THE EVIDENCE THAT CAME
OUT IN THE EVIDENTIARY
HEARING FOR THE MENTAL
HEALTH MITIGATION REALLY
DOESN'T CHANGE WHAT WAS
PRESENTED AT THE SECOND
PENALTY PHASE.
>> MR. KEARSE SAYS THAT THE
LAWYERS WERE SO
SELF-CONFIDENT THEY DIDN'T
TAKE THE DEPOSITION OR
PREPARE FOR IT EXPERT
WITNESSES THEY WERE JUST
GOING TO DEVASTATE THEM.
MR. UDEL DOES NOT LIKE TO
TAKE DEPOSITIONS OF EXPERTS.
HE DOESN'T LIKE TO DO
DISCOVERY IN FRONT OF THE
STATE.
HE TRIES TO DO THAT FIND OUT
THE INFORMATION OTHER WAYS.
HE DOESN'T LIKE TO PRESENT
HIS CASE TO THE STATE BEFORE
TRIAL.
HE WILL TALK TO THE
PROSECUTOR AND ASK WHAT THE
MENTAL HEALTH EXPERT WILL
SAY.
AGAIN AS MR. UDEL HAS BEEN
DOING THIS SINCE 190.
IT'S PRETTY CLEAR IF THE
STATE WILL PUT ON A MENTAL
HEALTH EXPERT THE MENTAL
HEALTH EXPERT WILL BE
REFUTING WHAT THE MENTAL
HEALTH EXPERT THAT --
>> IS THAT REALLY A
SATISFACTORY RESPONSE TO NOT
DOING YOUR FUNDAMENTAL WORK
OF TRYING TO KNOW AS MUCH AS
YOU CAN ABOUT THE CASE ON
THE OTHER SIDE.
AND HOW DID MR. UDEL
RECONCILE THIS BELIEF THAT
HE HAD THAT JURY IN INDIAN
RIVER COUNTY DIDN'T BELIEVE
IN MENTAL HEALTH EVIDENCE
AND THEN HIS STRATEGY OR
DECISION AS TO WHETHER OR
NOT TO PRESENT THAT KIND OF
EVIDENCE.
THAT I'M HAVING DIFFICULTY
UNDERSTANDING IF HE DIDN'T
THINK THAT THE JURY IN
INDIAN RIVER COUNTY PUT ANY
STOCK IN MENTAL HEALTH
EVIDENCE THEN WHERE WAS HIS
DEFENSE HERE IN TERMS OF
ADVOCATING THE MENTAL HEALTH
EVIDENCE?
HOW DID HE RECONCILE THOSE
TWO WHICH APPEAR TO ME TO BE
OPPOSITES THAT IS THAT YOU
KNOW TO SAY WELL I DON'T
KNOW WHAT I WILL DO.
I WILL HAVE A JURY THAT
THINKS THIS IS ALL FOOLISH.
SO HOW DID HE RECONCILE
THAT.
>> MR. UDEL NOT ONLY PUT ON
THE EXPERT, BUT HE PUT ON
LAY WITNESSES.
WHO SUPPORTED THOSE PERTS.
SO WHILE GENERALLY MENTAL
HEALTH TESTIMONY AND IN THIS
PARTICULAR CASE I WOULD
SUGGEST THAT THE MENTAL
HEALTH TESTIMONY REALLY IS
UNDERCUT BY THE FACTS OF THE
CASE.
NONETHELESS HE PUT ON BOTH
SO THAT THE JURY NOT
EVERYONE DISAGREES WITH
MENTAL HEALTH TESTIMONY.
BUT GENERALLY THAT IS HIS
EXPERIENCE.
AND THEY'VE BEEN DOING THIS
FOR NOW ALMOST 30 -- SINCE
1980.
CLOSE TO WHAT -- 27 YEARS.
AND HE HAS A GOOD FEEL.
HE DOES MOST OF THE CAPITAL
CASES IN 19th CIRCUIT.
IT'S INDIAN, RIVER MARTIN
AND ALL OVER.
HE'S WELL EXPERIENCED.
HE NOT ONLY -- GOES THROUGH
HIS TRIALS, BUT HE DOES SIT
IN OTHER TRIALS TO FIND OUT
WHAT'S GOING ON IN THE
COUNTY.
>> YOU'RE SAYING A FAIR
READING OF HIS TESTIMONY AND
HIS EVIDENCE WOULD REFLECT
THAT HE WAS VERY
KNOWLEDGEABLE ABOUT MENTAL
HEALTH ISSUES.
THE SYNDROME AND THE OTHER
CONCEPTS AND THE DIFFERENCE
BETWEEN A PSYCHIATRIST AND
PSYCHOLOGIST.
>> YES.
IN OTHER WORDS THAT THE
OPPOSITION HERE IS REALLY
PAINTED A FALSE PICTURE.
>> I THINK HE'S PAINTED A
PICTURE USING -- RAISES
LITTLE BITS AND PWAOES -- PIECE
OF WHAT UDEL SAYS TO PAINT A
PICTURE THAT'S FOR HIM.
HOWEVER, IF YOU TAKE
MR. UDEL IN HIS TOTALITY, HE
HAS DONE I THINK ABOUT 19
CAPITAL CASES OVER 90
HOMICIDE CASES AND HE IS
COMPEL -- WELL EXPERIENCED.
WE WITH TAKE A LOOK AT WHAT
HE DID IN 1990 -- 1991 AND
TAKE A LOOK WHAT HE DID IN
1997 FOR THE RETRIAL.
>> HE HAD TWO EXPERTS.
DR. PTRILLA AND DR. DESAI.
AND HE CHOSE THAT GOT HIM
11-1 RECOMMENDATION OF
DEATH.
I HAVE TO DO SOMETHING
DIFFERENT HERE.
HE DIDN'T PUT ON THE EXACT
SAME CASE.
HE FOUND DR. LITTMAN AS I
MENTIONED ALSO HAD THREE
OTHER EXPERT SUPPORTING HIS
POSITION.
MR. UDEL PUT ON DR. UDEL AND
DR. LICHTMAN PLUS THE LAY
WITNESSES AND THE
RECOMMENDATION AGAIN WAS
12-0.
ONE HAS TO UNDERSTAND THAT
IT'S THE FACTS OF THE CASE
AGAIN THAT UNDER CUT THIS
MENTAL HEALTH TESTIMONY.
>> I HAVE JUST AN ISSUE I
WANT TO ASK YOU ABOUT.
I DON'T THINK IT REALLY
CHANGES ANYTHING ABOUT THE
OUTCOME HERE.
BUT THE STATE ATTORNEY'S
LETTER THAT THEY SENT TO
MR. UDEL, AND WHETHER THE
STATE ARGUES THAT THAT
LETTER WAS EXEMPT FROM
DISCLOSURE AS WORK PRODUCT.
THEY CALL UDEL AS A WITNESS.
UDEL IS TALKING ABOUT HIS
ATTORNEY FOR MR. KEARSE,
OBVIOUSLY THEY WAIVE
ATTORNEY-CLIENT PRIVILEGE
THAT WAY.
HE'S ON THE STAND.
IS -- IT'S A LETTER THAT THE
STATE SENDS TO HIM.
YOU'RE NOT SAYING THAT HE
COULDN'T THEN REVEAL THE
LETTER TO WHOEVER HE WANTED
TO.
HOW DID THAT -- JUST AM
HAVING A TROUBLE SEEING HOW
THAT ONCE YOU SENT IT OUT TO
A WITNESS AND THAT IS THE
DEFENDANT'S OWN ATTORNEY HOW
YOU CAN CONTINUE TO CLAIM
WORK PRODUCT PRIVILEGE AND
EVEN IF YOU CAN,
YOU -- MR. UDEL JUST HAND IT
OVER.
>> HE PUT ON THE LETTER THIS
IS WORK PRODUCT.
HE'S CLAIMING A WORK PRODUCT
PRIVILEGE.
MR. UDEL RECOGNIZED THAT.
AND HONORED THAT REQUEST.
TO KEEP IT CONFIDENTIAL.
>> AND YOU'RE SAYING THAT
ANY WITNESS YOU SEND A
LETTER TO OUTLINING THE CASE,
THAT WITNESS
DOESN'T -- WOULDN'T -- ONCE
YOU SENT IT TO THAT WITNESS
THAT -- IT'S NOT THE
STATE -- IF YOU TALK ABOUT
WORK PRODUCT.
>> ASSUMING THAT YOU COULD
BE ARRESTED FOR TURNING OVER
THE LETTER.
>> IF IT IS SEPTEMBER OUT TO
A WITNESS AND THAT WITNESS
WANTED TO DEPOSE IT.
HOW IS THAT CONTINUE TO BE
SOMETHING --
>> BECAUSE MR. UDEL WAS
HONORABLE AND RESPECTED
MR. MUM MONEY'S WISHES THAT
IT WAS WORK PRACTICE.
THE SAME AS MR. MUR MONEY
WITNESS PREPARATION IT IS
WORK PRODUCT FROM THAT
ATTORNEY THEY ARE DISCUSSING
THE MATTER THAT IS GOING TO
BECOMING BEFORE THE COURT
AND AND THE TESTIMONY.
>> CORRECT ME IF I'M WRONG
THE ISSUE ON APPEAL IS
WHETHER THIS WAS A PUBLIC.
>> IT WAS REQUEST TO THE
STATE TO PRODUCE THAT.
IT'S NOT A PUBLIC RECORD.
IT IS DURING LITIGATION THAT
IT TAKES RIGHT OUT OF PUBLIC
RECORD ARENA.
BUT THE QUESTION WAS WHETHER
MR. UDEL COULD BREAK THE --
>> HE WAS ASKED TO SEE THE
LETTER AND THEN THE COURT
SAYS THE WAY I SEE APPEAL AN
EXAMINED IT AS MR. UDEL SAID
HERE IT IS.
>> BECAUSE THE STATE WAS
CLAIMING A WORK PRODUCT
PRIVILEGE AND ALSO THAT THIS
WAS WITNESS PREPARATION.
>> I KNOW MR. KEARSE -- OR
MR. KALIL WILL GO INTO THE
OTHER ISSUE WHICH IS
MR. MARTEL AND THE PSITE
MATTER.
LET'S TAKE A FEW MINUTES TO
MENTION THAT.
THAT IS NOT NEWLY DISCOVERED
EVIDENCE WHAT OCCURRED IN
THE SPIDY CASE WAS GENERATED
AFTER THERE WAS A SENTENCING
HEARING.
SO.
>> YOUR ARGUMENT THIS IS NOT
EVIDENCE THAT EXISTED AT THE
TIME BUT HAD NOT BEEN
DISCOVERED THROUGH NO LACK
OF DILIGENCE.
>> THAT'S CORRECT, YOUR
HONOR.
>> IT'S A FACT THAT OCCURRED
AFTER THE TRIAL IN THIS
CASE.
>> THAT'S CORRECT.
>> AND IF WE HELD THE
DEFINITION OF NEWLY
DISCOVERED SOMETHING THAT
EXISTED AT THE TIME BUT
WASN'T DISCOVERED.
>> THAT'S THE DEFINITION.
IT HAD TO EXIST AT THE TIME
OF THE EVENT, THAT IT COULD
NOT HAVE BEEN SCHEDULED WITH
DUE DILIGENCE AND THAT THE
THIRD PRONG IS THAT IT WILL
DO -- IT WILL IMPACT EITHER
THE SENTENCE OR THE PENALTY.
>> ON THE FIRST PRONG
RECANTATION
OCCURS -- THERE'S MANY CASES
WHERE YOU SAY IT'S NEWLY
DISCOVERED RECANTATION
DOESN'T EXIST AT THE TIME
BUT AFTERWARDS.
YOU MAY BE FINE ON ANOTHER
PRONG.
I DON'T KNOW WE EVER SAID IT
HAD TO EXIST AT THE TIME --
>> IT'S TWO PRONG.
IF IT'S RECANTATION YOU TALK
ABOUT SOMETHING WHERE THE
LIE OCCURRED AT THE
SAME -- AT THE TIME OF
TRIAL.
OF COURSE.
>> THE NEWLY DISCOVERED WAS
THAT HE WAS LYING AT THE
TIME OF TRIAL.
>> LYING AT THE TIME OF
TRIAL.
THIS IS MERELY A COLLATERAL
ISSUE.
WHAT DR. MARTEL DID IN THE
CASE IN NEW MEXICO IT
CLEARLY IS COLLATERAL AND
WAS ONLY GOING TO BE USED TO
TRY TO IMPEACH HIM AS FAR AS
HIS BIAS AS THE DEFENSE
WOULD SAY.
BIAS TOWARD THE STATE.
WELL, OF COURSE THE STATE IS
PUTTING HIM ON.
HE WILL SAY SOMETHING
PREJUDICIAL TO THE DEFENSE.
AND I -- AS I SAID IT'S
PURELY COLLATERAL ISSUE.
>> THAT'S THE SECOND
COMMENT.
>> RIGHT.
WITH OUR ASSISTANCE YOU HAVE
EXHAUSTED ALL OF YOUR TIME.
>> NO ONE HAS ANY OTHER
QUESTIONS.
I WON'T RELY ON MY BRIEF.
>> YOUR TIME IS UP.
THEY WILL HAVE TO WAIT.
>> YES, SIR.
>> LET ME ASK YOU A
FUNDAMENTAL QUESTION ON THIS
ISSUE OF THE COUNSEL'S
INEFFECT
THE -- INEFFECTIVENESS.
I MAY HAVE A BAD MEMORY.
BUT IN MOST OF THE CASES
THAT I'VE SEEN HERE THAT
ALLEGE INEFFECTIVE
ASSISTANCE FOR FAILURE TO
PUT ON ADEQUATE MITIGATION,
I HAVEN'T SEEN A CASE YET
AND AGAIN YOU CAN REFRESH MY
RECK HREBGION.
BUT I DON'T RECALL A CASE
WHERE -- RECOLLECTION.
I DON'T RECALL A CASE WHERE
THE DEFENSE PUT ON TWO
MENTAL MITIGATION EXPERTS AT
TRIAL AND THE DEFENDANT IS
STILL ARGUING THAT HE DIDN'T
PUT ON ENOUGH.
THE ONES I'VE SEEN IS WHERE
THEY DIDN'T PUT ANYTHING ON.
>> IT'S NOT SO MUCH THE
QUANTITY OF THE EVIDENCE
THAT WAS PRESENTED.
IT'S THE QUALITY OF IT.
AND IT'S THE --
>> HAVE WE HAD A
CASE -- HAVE WE HAD A CASE
LIKE THAT?
EVER?
HAVE YOU CITED A CASE TO US
WHERE THE DEFENSE HAS PUT ON
TWO MENTAL MITIGATION
EXPERTS?
AND WE HAVE HELD WELL THAT
WAS INEFFECTIVE ASSISTANCE.
>> SPECIFICALLY BEFORE THIS
COURT I'M NOT AWARE OF ANY.
>> THAT SEEMS TO ME PRETTY
IMPORTANT BECAUSE WE'RE
ESSENTIALLY YOU'RE ASKING US
TO DECLARE INEFFECTIVE
ASSISTANCE OF A MENTAL
HEALTH EXPERT NOT
INEFFECTIVE ASSISTANCE OF
COUNSEL.
THERE ARE U.S. SUPREME COURT
CASES IN THE NAMES ES SKA UP
ME.
VERY SIMILAR SITUATION WHERE
MULTIPLE MENTAL HEALTH
PROFESSIONALS.
>> YOU HAVE TO LOOK THERE AS
TO WHETHER IN THE SITUATION
WHERE THEY ARE JUST NOW
MENTAL HEALTH EXPERT.
I DON'T KNOW WHETHER YOU
TALK ABOUT THE WHERE THE
RECORD NOW THAT ARE NEVER
UNCOVERED BY THE LAWYER TO
GIVE TO THE EXPERT THAT'S A
DIFFERENT SITUATION.
BUT WHERE IT SORT OF A
BETTER EXPERT A DIFFERENT
EXPERT OR A PREPACKAGED
EXPERT.
I'M SEARCHING FOR THAT SAME
CASE AND I DON'T THINK THAT
THERE IS REALLY, REALLY IN.
YOU COULD HAVE MAYBE DONE
BETTER.
ESPECIALLY WHEN HE HAD TWO
DIFFERENT -- NOW HE HAS WENT
THROUGH TWO PENALTY PHASES.
MORE THAN A SECOND.
>> YEAH AND AGAIN, IT'S NOT
A QUESTION OF THE QUANTITY
OF WHAT WAS PRESENTED OR HE
COULD HAVE DONE BETTER.
IT'S A QUESTION OF
EVERYTHING THAT HE PUT ON HE
JUST COMPLETELY NEGATED BY
ALLOWING THE STATE'S EXPERT
TO ESSENTIALLY RUN RAMSHOT
OVER EVERYTHING AND THEN
DIMINISHING HIS OWN EXPERTS
BY NOT PREPARING THEM
PROPERLY OR GIVING THEM THE
INFORMATION THEY NEEDED.
>> WOULDN'T WE HAVE TO SAY
THAT IT'S UNREASONABLE
STRATEGY NOT TO DEPOSE THE
STATE'S EXPERT?
>> I DON'T I DON'T SEE THAT
DECISION AS BEING A STRATEGY
AT ALL.
I SEE THAT AS BEING NOT
FULLFILLING YOUR DUTY IN
DISCOVERY.
AGAIN, HAVE WE HELD IN
ANOTHER CASE THAT BY THE
MERE VIRTUE OF NOT DEPOSING
THE STATE'S EXPERTS THAT
AL -- ALONE IS INEFFECTIVE
ASSISTANCE OF COUNSEL.
>> I'M NOT AWARE OF THAT
HOLDING, NO.
BUT NOT PREPARING HIS OWN
EXPERT ADEQUATELY BY
PROVIDING THE INFORMATION
THAT WAS GOING TO BE
CAPITALIZED OR BY THE STATE.
BOLSTERING CREDIBILITY OF
DR. MARTEL BY SAYING LOOK HE
HAD THESE STATEMENTS.
HE HAD THE EYEWITNESS
STATEMENTS AND THE
DEFENDANT'S STATEMENTS AND
SO FORTH.
THERE'S NO STRATEGY REASON
IN NOT PROVIDING YOUR EXPERT
WITH EVERYTHING THAT'S
NECESSARY.
WHICH IS ANOTHER
CONSIDERATION.
AND ONE OTHER THING IF I
STILL HAVE A MOMENT THE
STATE WAS DISCUSSING
DR. PATRILLA.
HE TESTIFIED SPECIFICALLY
WITH REGARD TO THE MMPI AND
DEFERRED HIS OPINION ON THE
MMPI DATA AND WHETHER OR NOT
IT WAS VALID AND
INTERPRETABLE TO
DR. FRIEDMAN.
THAT'S WHERE WE GET INTO THE
PROBLEM HERE WITH THE
FAILURE TO PREPARE AND TO
HIRE THE EXTERTS AND EXPLAIN
TO THE JURY THE WAY HE DID
AT EVIDENCE HEARING THE
IMPORTANCE OF F SCALE.
THE F ENTICES IT WOULD HAVE
BOLSTERED THE MITIGATION
CASE.
I WOULD HAVE COUNTERED THE
REBUTTAL THAT WAS PRESENTED
BY THE CASE.
>> WITH -- THANK YOU VERY
MUCH.
WE THANK BOTH PARTIES FOR
THE ARGUES.
WE WILL TAKE THE CASE UNDER
ADVISEMENT.
THE COURT WILL TAKE ITS
MORNING RECESSION.
>> ALL RISE.