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Gary Ray Bowles v. State of Florida
SC05-2264, SC06-1666
>>> ALL RISE.
THE NEXT CASE ON THE CALENDAR THIS MORNING IS BOWLES VERSUS STATE OF FLORIDA.
MAY IT PLEASE THE COURT, WE REPRESENT MR. BOWLES, THE APELLANT IN THIS MATTER.
PULL THAT MICROPHONE UP A LITTLE BIT SO WE CAN HEAR YOU.
APOLOGIZE. A LITTLE BIT TALLER AND THE LAST ONE.
CAN YOU EXPLAIN HOW YOU WILL -- LITTLE UNUSUAL. HOW ARE YOU GOING TO DIVIDE YOUR ARGUMENT.
JUDGE, MAY I RESERVE 10 MINUTES FOR REBUTTAL.
YOU WILL NOT DIVIDE ISSUES, ARE JUST...
I WAS GOING TO DISCUSS THE FIRST TWO ISSUES IN THE INITIAL BRIEF AND HE WILL COVER ANYTHING ELSE THE JUSTICES MIGHT HAVE, AS QUESTIONS, IF THAT -- [INAUDIBLE] YES, SIR. THE FIRST TWO ISSUES WE RAISED IN OUR INITIAL BRIEF ARE IN REGARDS TO THE TRIAL COURT REJECTING OUR ARGUMENT IN REGARDS TO TRIAL COUNSEL'S INEFFECTIVE ASSISTANCE OF COUNSEL IN FAILING TO CALL DR. MCMANN TO THE STAND AT THE PENALTY PHASE AND SUBSTANTIATE TWO STATUTORY MENTAL MITIGATING FACTORS.
YOU DO AGREE THAT MR. WHITE TESTIFIED THAT HE CONSIDERED THE PROS AND CONS OF CALLING DR. MCMANN AND DECIDED AGAINST IT?
YES, SIR, HE TESTIFIED TO THAT, THAT HE WENT -- I GUESS THE QUOTE WAS HE WENT BACK AND FORTH ON THE ISSUE OF WHETHER HE WAS GOING TO CALL DR. MCMANN OR NOT, OUR POINT IS, JUDGE, HE MADE THE CONSCIOUS DECISION FIRST TO -- [INAUDIBLE] MR. BOWLES GUILTY KNOWING THERE WAS A LOOMING 4 OR 5 AGGRAVATING FACTORS --
WHAT DID HE GET IN EXCHANGE FOR THIS IS -- WHAT WAS THE DEAL ON PLEADING GUILTY?
THERE WAS NO DEAL. HE TOOK --
WASN'T THERE AN ARRANGEMENT MADE THAT THE STATE WOULD NOT BRING UP THE DETAILS OF MURDERS AND -- IN ATLANTA, IN MARYLAND, IN VOLUSIA SDMUT I GUESS ARE WE TALKING ABOUT THE FIRST PENALTY PHASE OR --
WASN'T THAT THE DEAL IN THE PLEA?
THE INITIAL PLEA.
YES.
YES. AND THEY ONLY -- AND IT WAS A 10-2 VOTE AFTER THAT AND AFTER IT CAME BACK DOWN, IT -- THEY WERE HAVING THE PROBLEM BECAUSE THEY BROUGHT IN WILLIAMS RULE EVIDENCE OF TWO OTHER PRIOR MURDERS AND USED THAT AS PRIOR FELONY AND ESSENTIALLIED THAT TWO PRIOR MURDERS PATCHED -- PASSED AFTER THE FIRST PLEA AND TWO PRIOR FELONIES TO INCORPORATE.
THE WHOLE THING WITH THIS EXPERT IS -- AS I UNDERSTOOD IT WAS THAT THE EXPERT TALKED TO -- AS DID DR. KROP, TO MR. BOWLES.
YES, SIR.
AND DR. MCMANN WAS CONCERNED THAT HER TESTIMONY WAS GOING TO HAVE TO BRING UP THE DETAILS THAT THIS MAN HAD BEEN INVOLVED IN SIX MURDERS. ISN'T THAT CORRECT.
THAT'S TRUE AND --
AND THAT WAS A VALID CONSIDERATION, WAS IT NOT.
IT WAS A VALID CONSIDERATION AND I GUESS I WOULD SAY, JUSTICE, THERE WAS ALREADY THREE. I MEAN, THREE -- I DON'T SEE HOW THE JAR IS GOING TO -- THEY ARE GOING TO HAVE THE OPINION, THIS GUY IS DOING SOMETHING --
REGARDLESS OF HOW YOU COME OUT ON THAT, ISN'T IT BY DEFINITION, NOW, AREN'T WE TALKING ABOUT A STRATEGIC DECISION BY COUNSEL AND WHETHER YOU WOULD SECOND-GUESS THAT DECISION OR NOT, OUR CASES HAVE SAID IF THIS IS A REASONABLY -- REASONABLE STRATEGIC DECISION WE DON'T SECOND-GUESS AND WE DON'T SAY IT IS INEFFECTIVE ASSISTANCE.
CORRECT -- [INAUDIBLE]. YOU DO NOT --
RIGHT. AND DOESN'T THE EVIDENCE SHOW THAT COUNSEL CONSIDERED WHETHER TO CALL THE EXPERTS, DETERMINE THAT THERE WAS TESTIMONY THAT WOULD COME OUT, THAT HE HAD COMMITTED SIX OTHER MURDERS. AND DECIDE AS A MATTER OF LITIGATION STRATEGY AGAINST CALLING THE EXPERT WITNESS.
I WOULD HAVE TO SAY NO, JUDGE, AND THE FACT -- AND THE REASON I SAY THAT IS, HE DID CONSIDER IT. IT WAS IN THE RECORD AND THE CASE LAW ALSO SAYS THE UNREASONABLE DECISION IS NOT A STRATEGIC DECISION.
ARE CLAIMING NOW THEN THAT COUNSEL'S DECISION NOT TO CALL AN EXPERT WITNESS BECAUSE EVIDENCE WOULD COME OUT THE DEFENDANT COMMITTED SIX OTHER MURDERS, IS PATEDDENL UNREASONABLE?
THERE WAS NO -- PATENTLY UNREASONABLE.
HE DIDN'T PRESENT IT AT THE SPENCER HEARING EITHER --
AND LET ME GET AN ANSWER TO MY QUESTION, ARE YOU SAYING IT IS PATENTLY UNREASONABLE.
BASED ON THE FACT HIM NOT BRINGING IT UP IN THE SPRENSER HEARING OR TRYING TO SUN STAN SHATE THE MITT GATORS WITHOUT THE EXPERT, YES. -- MITIGATOR, WITHOUT THE EXPERT, YES. [INAUDIBLE] THEY HAD NOTHING SUBSTANTIATED AND ALLEGED THEM BUT DIDN'T INCORPORATE THEM, CALLED WITH -- [INAUDIBLE] TESTIMONY.
YOUR ARGUMENT RISES OR FALLS ON WHETHER WE AGREE WITH YOU THAT THAT DECISION WAS PATENTLY UNREASONABLE.
COMES DOWN A STRATEGIC DECISION INTO THE PROBLEM I HAVE WITH THAT IS THAT IT IS TRUE THAT IF SOMEONE DOESN'T DO A REASONABLE INVESTIGATION. IT'S HARD TO SAY THEY COULD MAKE A REASONABLE STRATEGIC DECISION BUT HERE YOU HAVE DR. MN MCMANN WHO HAS BEEN HIRED. SHE, HERSELF, SAYS I DON'T THINK YOU WANT TO PUT ME ON, I THINK IT COULD DO MORE HARM THAN GOOD, AND YOU WOULD BE SAYING WE HAVE TO DECIDE AS A MERIT OF LAW UNDER THOSE CIRCUMSTANCES, THAT IS UNREASONABLE AND I DON'T KNOW OF ANY CASE THAT WOULD ALLOW US TO -- ALLOW US TO SECOND GUESS SOMETHING DONE AFTER A REASONABLE INVESTIGATION WHERE THERE IS A DOWNSIDE. THERE IS A AND PLEASE TELL ME IF THERE IS A CASE THAT IS CLOSEST ON POINT TO WHAT YOU ARE ARGUING, ON DEFICIENT PERFORMANCE AND THEN, I THINK THE SECOND PRONG YOU'VE GOT TO ADDRESS IS, PREJUDICE. HOW DOES IT UNDERMINE OUR CONFIDENCE IN THE OUTCOME.
I'LL DEAL WITH THE PREJUDICE NOW --
IF WE DON'T GET TO DEFICIENT PERFORMANCE WE DON'T GET TO PREJUDICE. I DON'T SEE HOW UNDER THESE CIRCUMSTANCES WITH A COMPETENT MENTAL HEALTH EXAMINATION, WITH SOMEBODY HERSELF SAYING THAT YOU DON'T WANT ME ON THE STAND, THAT SOMEBODY THAT WE CAN FIND SOMEBODY WOULD BE ESSENTIALLY AS A MATTER OF LAW, THAT THAT WAS UNREASONABLE.
GIVEN THE FIVE AGGRAVATING FACTORS THEY HAD AGAINST THE NONSTATUTORY MITT GATORS, IT IS OUR ARGUMENT, THEY HAD TO DO SOMETHING, I UNDERSTAND THE -- I UNDERSTAND JUSTICE WELLS' POINT THEY WILL NOT BRING IN DETAILS OF THE FACTS OF THE OTHER MURDERS BUT YOU ARE GOING INTO THE CASE IN THE PENALTY PHASE WITH NOTHING BUT FIVE AGGRAVATORS AND NO STATUTORY MITIGATORS YOU HAVE TO DO SOMETHING AND CALL SOMEBODY OR AT LEAST PUT THEM IN A SPENCER HEARING OR A --
YOU SAY THE -- REALLY THE ONLY HOPE THAT HE HAD OF PERHAPS SACHING THE CLIENT.
IT WAS THE ONLY --
THROW IT OUT. GO AHEAD AND TELL ME, HOW THEY ARE PREJUDICED GIVEN AS YOU SAY THESE VERY, VERY, VERY POWERFUL AGGRAVATORS IN THIS CASE.
WE'LL CONCEDE THERE WERE STRONG AGGRAVATORS AND THE COURT FOUND -- THE FIRST ONE, FOUND -- [INAUDIBLE] FOUND GREAT WEIGHT TO THEM, IT WAS A 12-0 VOTE ON THE SECOND\\ COME-AROUND AND WE'RE TALK ABOUT TWO STATUTORY MENTAL MITIGATING FACTORS A JURY, AT LEAST A JUDGE NEEDS TO HEAR THIS TO COME UP WITH -- I MEAN, THE POINT IS THAT IS EXACTLY OUR POINT, THE JURY DIDN'T BELIEVE OR DIDN'T FIND ANY OF THESE THINGS COMPELLING ENOUGH TO RECOMMEND A LIFE SENTENCE.
EVEN KROP WHO WAS PUT ON, HE DOESN'T GIVE VERY COMPELLING, IN MY VIEW, MENTAL MITIGATION. I MEAN, IT'S NOT LIKE I THOUGHT, WELL, MAYBE SOMEBODY WOULD SAY, HOW HE SNAPPED AT THE MOMENT OF THIS MURDER OR SOMETHING, THAT WOULD ACTUALLY TAKE THIS TO EXPLAIN WHAT GOES ON IN THE PERSON'S MIND THAT WOULD, YOU KNOW, HAVE CAUSED HIM TO SNAP THIS TIME, AND THEN YOU'D HAVE TO GET -- AND SNAP EVERY OTHER TIME THAEPTION KILLED PEOPLE. AND YOU DON'T HAVE THAT HERE. IT IS NOT -- YOU KNOW, I JUST -- LOOKING OVER DR. KROP'S TESTIMONY, EVEN WITH MCMANN, THERE IS NOTHING COMPELLING.
SOME OF -- MOST OF THEM TALK ABOUT THE MILD COGNITIVE DISORDER AND THE EXTENT OF DIFFICULTIES LEARNING --
THAT ONE -- YOU ARE TALKING ABOUT STATUTORY MENTAL MITIGATORS, NOT LOW IQ AS A NONSTATUTORY. WHERE IS THE EVIDENCE THAT A JUDGE OR THIS COURT WOULD BE CONSIDERING STRONG STATUTORY MITIGATORS.
THE EXPERTS COULD HAVE TESTIFIED TO CORROBORATE THE LAY WITNESS'S TESTIMONY WHO SAID HE WAS ABUSED AS A CHILD --
THAT DOESN'T ESTABLISH A STATUTORY MENTAL MITIGATOR WHICH SAYS TET OF THE CRIME HE WAS UNDER EXTREME EMOTIONAL DISTURBANCE OR HIS ABILITY TO WHATEVER IS SUBSTANTIALLY IMPAIRED. WHERE IS THAT TESTIMONY?
YOU SAID STATUTORY MENTAL MITIGATORS.
STATUTORY MENTAL MITIGATORS.
WHERE IS IT.
I DON'T KNOW, IT WAS NEVER PRESENTED --
NO, BUT AT THE EVIDENTIARY HEARING, WHERE IS IT?
I DON'T BELIEVE DR. KROP TALKED SPECIFICALLY ABOUT THAT CLAIM.
BUT THAT IS -- ITS YOUR BURDEN TO PROVE IT. THAT IS WHAT I'M SAYING. THERE IS NOTHING THAT ESTABLISHES -- EVEN AT THE EVIDENTIARY HEARING STATUTORY MENTAL MITIGATORS.
YES -- I RELATE BACK TO THE POINT THAN -- AT LEAST ATTEMPTS -- THE TRIAL COURT ASSIGNED ABSOLUTELY ZERO WEIGHT TO THEM BECAUSE THERE WAS NOTHING DONE IN THE FIRST PLACE TO TRY TO ESTABLISH THAT. AND I UNDERSTAND THE JUSTICE'S POINT THAT GIVEN DR. KROP'S TESTIMONY, HE COVERED, LIKE WE SAID, COGNITIVE DISORDERS AND IQ, AND THINGS LIKE THAT, OUR CLAIM IS THAT THOSE ISSUES SHOULD HAVE BEEN DEVELOPED TO TRY TO ESTABLISH THAT. AND BECAUSE THERE WAS NO EXPERT CALL, THAT IT WAS NEVER GOING TO HAPPEN.
THE WAY YOU HAVE DIVIDED YOUR TIME YOU ARE IN YOUR NEXT SECTION, USE YOUR TIME AS YOU PLEASE, BUT --
I'LL SAVE THE REST FOR REBUTTAL.
MALT PLEASE THE COURT, YOUR HONOR, THERE WAS A DETERMINATION MADE BY MR. WHITE AND HE TESTIFIED TO THIS AT THIS EVIDENTIARY HEARING, HE RECOGNIZED THAT HE HAD A CLIENT, WHO BY ALL ACCOUNT WAS NOT A SYMPATHETIC CLIENT, AN INDIVIDUAL WHO HAD BEEN INVOLVED IN SIX BRUTAL MURDERS, AND TWO WHICH HAPPENED IN THE MONTHS PRECEDING MURDER IN THIS CASE AND DETERMINATION WAS MADE BASED ON VALUATION OF THE ENTIRETY OF CIRCUMSTANCES AND IN CONSULTATION WITH DR. MCMANN, THAT THE BEST WAY TO PERCEIVE WAS TO PERHAPS BRING FORTH MITIGATING EVIDENCE, AND WITH REGARDS TO DIFFICULT CHILDHOOD, THE PROBLEMS WITH HIS MOTHER AND IN -- THE FACT HE HAD ABUSIVE PARENTS, SO, WHAT IT INTENDED TO DO WAS BRING -- GET MITIGATING EVIDENCE CONSIDERED BY THE JUDGE, AND TRIAL COURT AND THE JUDGE AND THE JURY, AND WITHOUT THE AGGRAVATING ASPECTS OF THE TESTIMONY THAT WOULD HAVE COME IN.
COULD YOU COMPARE WHAT WAS PUT ON -- A RESENTENCING.
YES.
SO AGAIN, THE -- IN A SENSE THE LAWYER HAS A BENEFIT OF THE FIRST PENALTY PHASE AND COULD YOU COMPARE BRIEFLY WHAT WAS PRESENTED IN MITIGATION AT THE FIRST PENALTY PHASE AND THIS PENALTY PHASE AND COMPARE IT WITH WHAT CAME OUT IN THE EVIDENTIARY HEARING.
WELL, TALK A LITTLE BIT ABOUT THE THING -- [INAUDIBLE] COURT IS AWARE IS THAT THE SENTENCING WAS BASED UPON THE FACT THAT THE -- MR. BOWLES' LIFESTYLE AND IN RELATION TO -- THIS WAS -- TOO MUCH EMPHASIS PLACED ON THE FACT.
BUT I'M ASKING WHAT -- STILL, THERE WAS -- WHAT WAS THE JURY VOTE THE FIRST TIME.
10 HOMEBUILDER 2.
AND EVEN WITH -- 10-2.
AND EVEN WITH THAT WHAT WAS PUT ON BY THE DEFENSE LAWYER IN THE FIRST PENALTY PHASE.
I THINK THERE WAS SOME DISCUSSION, WITH REGARD TO THE -- AGAIN, THE FAMILY BACKGROUND AND AGAIN, I -- THESE -- THERE WAS A CONCERTED EFFORT THAT WHATEVER WE DON'T WANT ANYTHING WITH REGARD -- WE WANT TO EMPHASIZE THE DIFFICULTY --
LET ME EXPLAIN WHY I'M GETTING THERE. BECAUSE WHEN YOU HAVE A SECOND -- YOU HAVE THE ADVANTAGE OF SEEING WHAT HAPPENED, WEIGHING THAT AND DECIDING EITHER TO ADD OR SUBTRACT. YOU KNOW, HAVE YOU LOOKED AT THE FIRST PENALTY PHASE AND THE SECOND AND SO WE CAN GET THAT PICTURE?
I WOULD AGREE THAT YOU KNOW -- I WENT OVER THE PENALTY PHASE, AND CONCENTRATED THE MAJORITY OF THE EFFORT ON ISSUES RELATED JUST -- EMANATING FROM THE SECOND PENALTY PHASE. WITH REGARDS TO THE DISCUSSION OF FAMILY, AND THE PROBLEMS WITH THE MOTHER, THE FATHER. THIS WAS ACCORDING TO MR. WHITE, THIS IS -- KNEW THE WAY HE WAND TO PROCEED AND WANTED TO PRECEDE WAS THAT HE WANTED TO AVOID ANYTHING THAT WOULD AGAIN, VERY UNSYMPATHETIC CHARACTER AND WANTED TO AVOID PURSUING THE EVIDENCE THAT MIGHT COME IN WITH REGARD TO ANY PSYCHOLOGICAL TESTING WITH REGARDS TO AGAIN -- EVERY EXPERT -- SHOULDN'T SAY THAT, THE DOCTOR EVALUATED HIM IN MAY OF 1995, WITH HIM EIGHT HOURS AND ADMINISTERED FIVE SEPARATE TESTS, MMPI, CONSTANT CARD SORTING, THE IQ TEST, AND HER FINDINGS WERE BASED ON HER) FINDINGS WERE BASED ON HER 1995 EVALUATION OF MR. BOWLES THAT THERE WAS NOTHING THERE WITH REGARD TO ANY TYPE OF SIGNIFICANT BRAIN IMPAIRMENT WITH REGARD TO ANYTHING THAT WAS SORT OF THE COMPELLING OR COMPELLED HIM TO COMMIT THIS. WAS MR. WHITE THE -- AND HE IS NOW THE PUBLIC DEFENDER, AND HE'S QUITE AN EXPERIENCED -- HE'S BEEN WITH THE OFFICE, I BELIEVE, THE RECORD SAYS SINCE 197 -- DID HE HANDLE THE FIRST PENALTY PHASE AS WELL BE. I BELIEVE SO. THAT WOULD BE A SIGNIFICANT FACT. MR. WHITE HAD THE ADVANTAGE OF BEING THE FIRST LAWYER IN THE PENALTY PHASE. THEY WENT TO ARIZONA, THEY WENT TO WEST VIRGINIA, THEY INTERVIEWED THE BROTHERS, THE MOTHER. THEY ALL GOT THE SAME, I MEAN, THE TOALTY OF HIS COCOUNSEL WAS MR. MR. McMAN. IT WAS AN INSTANCE WE WE PURSUED ALL THE MITIGATING EVIDENCE. LOOKS LIKE THIS WAS ONE OF THE MOST THOUGHTFUL, STRATEGIC DECISIONS WE'VE COME ACROSS WHERE HE LOOKED AT THE HISTORY WITH ALCOHOL, YOU KNOW, HE TALK TODAY DR. McMAN SEVERAL TIMES. RIGHT, AND HE SAID HE STRUGGLED WITH THIS, THE TERM HE USED WAS HE STRUG WITH THE THIS DETERMINATION UNTIL THE VERY END, BUT YOU HAD AN INDIVIDUAL WITH AN ANTISOCIAL PERSONALITY DISORDER. HE FOUND DR. McMAN TO BE A QUALIFIED INDIVIDUAL, HE ONLY SAID HE PROBE WOULD HAVE -- PROBABLY WOULD HAVE DONE SOME OTHER PSYCHOLOGICAL TESTING, BUT THERE WAS SOME COMPREHENSIVE NEUROLOGICAL TESTING -- WELL, IT DOESN'T SOUND LIKE DR. CROP COULD SUPPORT THE MITT GATORS. NO, ALL HE SAID WAS HE WOULD HAVE PREFERRED SOME ADDITIONAL PSYCHOLOGICAL EVALUATION MIGHT BE DONE. HE AGREED WITH MOST OF THE FINDINGS THAT WERE MADE. DID HE RECOMMEND ANY AADDITIONAL TESTING? HE -- I MEAN, HE SAYS D McMAN SHOULD HAVE, BUT DID HE SUGGEST ADDITIONAL TESTING AT THE TIME HE EVALUATED THE DEFENDANT? HE MAKES REFERENCE TO, HE MAKES REFERENCE TO, I THINK, HE ADMINISTERED ONE ADDITIONAL TEST THAT HADN'T BEEN, THAT I THINK HADN'T BEEN DONE BY DR. McMAN, BUT IN HER TESTIMONY DURING DEPOSITION TESTIMONY THERE ARE A VARIETY OF TESTS THAT COME OUT EVERY DAY, AND, THEREFORE, THERE'S ALWAYS AN ADDITIONAL TEST THAT MAY HAVE, COULD HAVE BEEN ADMINISTERED. BUT SHE SAID BASED ON THE TOTALITY OF THE TESTS SHE HAD DONE, THE LARGE AMOUNT OF TIME SHE HAD SPENT WITH MR. BOWLES, SHE FELT HER TESTING WAS SENSITIVE TO DETECT ANY SIGNIFICANT BRAIN IMPAIRMENT. THERE WAS NO PROBLEM. MRIs FOUND NO PROBLEM, AND HER TESTING DIDN'T DETECT ANYTHING OTHER THAN VERY MILD BRAIN IMPAIRMENT. WHAT IS THE BEST THAT CAN BE SAID ABOUT MENTAL MITIGATION THAT DR. CROP OFFERED ON BEHALF OF THE DEFENDANT? I THINK THE STRONGEST THING THAT COULD BE SAID IS THAT YOU HAVE AN INDIVIDUAL WHO BY ALL ACCOUNTS HAS HAD A VERY DYSFUNCTIONAL UPBRINGING. RAN AWAY FROM HOME AT 14 YEARS OLD, THERE IS EVIDENCE OF SUBSTANCE ABUSE, THERE'S EVIDENCE OF DRUG ABUSE FROM A YOUNG AGE. HE ENGAGED IN ALL TYPES OF ANTISOCIAL CONDUCT. PERHAPS THERE WAS ADDITIONAL TESTING, PERHAPS, MIGHT HAVE BEEN ABLE TO SHOW THAT HIS ACTIONS ON THE NIGHT OF THE MURDER MIGHT HAVE HAD SOME TYPE OF BASIS IN PERHAPS ORGANIC BRAIN DAMAGE OR SOMETHING WITH REGARDS TO THAT. I MEAN, THAT'S THE ASSUMPTION THAT I GET THAT CROP POTENTIALLY WHAT THEY HOPE IS THAT'S THE BEST THING THAT MAYBE COULD HAVE COME OUT. BUT AGAIN, THERE WAS NO FINDING OF ANY TYPE OF ORGANIC BRAIN DAMAGE, THERE WAS NO FINDING OF STRUCTURAL PROBLEMS WITH THE BRAIN. THERE WAS THE SENSE HE HAD THE ABILITY TO PLAN THINGS OUT. WELL, WHAT WAS THE STRONGEST TESTIMONY THAT DR. CROP OFFERED IN SO FAR AS ANY POTENTIAL BRAIN DAMAGE OR FRONTAL LOBE DAMAGE? HE SUGGESTED THAT PERHAPS, AND THIS IS WHERE HE SAID THAT PERHAPS MAYBE SOME TESTING COULD HAVE DETECTED THAT THERE MIGHT HAVE BEEN SOME FRONTAL LOBE IMPAIRMENT. DID HE EXPRESS AN OPINION HIMSELF BASED ON WHAT HE KNEW AS TO WHETHER OR NOT THERE WAS BRAIN DAMAGE OR FRONTAL LOBE DAMAGE? HE BELIEVED THERE MIGHT HAVE BEEN. I MEAN, NOTHING OF OVERARCHING -- THERE WAS NO SUGGESTION HE HAD ANY SIGNIFICANT BRAIN DAMAGE. DR. CROP DID NOT FIND THAT AT ALL, BUT HE DID SUGGEST SOME OF HIS TESTING, SOME OF HIS EVALUATIONS SEEMED TO SUGGEST THAT THERE MAY BE SOME POTENTIAL FRONTAL LOBE IMPAIRMENT THAT COULD HAVE, MAYBE IT WOULD BENEFIT FROM ADDITIONAL TESTING, PSYCHOLOGICAL EVALUATION. I THINK THAT'S THE GREATEST THING THAT COULD BE SAID ABOUT DR. CROP. BUT I DON'T THINK NEITHER CROP NOR McMANMADE ANY FINDING THAT HE WAS D ANY GREAT WEIGHT OR SIGNIFICANCE WITH REGARDS TO IMPAIRMENT. HE CONCURRED WITH MUCH OF THE FINDINGS THAT SHE, THAT DR. McMAN HAD MADE AS WELL. SO THERE WAS NOT A GREAT DEGREE OF DAYLIGHT BETWEEN THE TWO OPINIONS. HE ACTUALLY TESTED, DR. CROP ACTUALLY TESTIFIED THAT GIVEN WHAT DR. McMAN HAD TO SAY HE COULD UNDERSTAND WHY THEY DIDN'T CALL HER. RIGHT. DR. McMAN WAS VERY CLEAR AS TO HER RATIONALE AND WHY SHE SAID, SHE SAID I HAVE TO BE HONEST, AND I'M GOING TO HAVE TO TESTIFY THAT THIS INDIVIDUAL IS INVOLVED IN FIVE OR SIX MURDERS AND THEY'RE ALL VERY VIOLENT. AND HER FEELING THAT THERE WAS STILL POTENTIAL, THERE WAS NOTHING IN HIS, IN HER EVALUATION OF HIM THAT GAVE HOPE THAT HE WOULD EVENTUALLY REHABILITATE TO THE EXTENT THAT HE COULD BE A FUNCTIONING, YOU KNOW, IN A PRISON SETTING. SHE FELT HE WAS ALWAYS GOING TO EXHIBIT THESE VIOLET TENDENCIES, HAD ENGAGED IN THESE CRIMES THROUGHOUT HIS LIFE, THERE WAS A SEXUAL ASSAULT OF A FEMALE, NOT JUST THE MULTIPLE MURDERS HE WAS INVOLVED WITH. SHE SAID THERE WAS A LOT THERE, SO PROBABLY THE BEST COURSE WAS LET'S TRY AND HUMANIZE HIM AS BEST WE CAN, AND MAYBE THIS WILL COUNT -- THE TRIAL JUDGE, YOU'VE DISCUSSED DR. CROP, AND THEY TALKED ABOUT HIM USING ALCOHOL. HE HAD A DRUG PROM ALSO? AND DID THE TRIAL JUDGE FIND THOSE THINGS? YES. THE TRIAL JUDGE DID GIVE WEIGHT TO BOTH HIS ALCOHOLISM AND, YOU KNOW, THE SIGNIFICANT -- DRUGS. RIGHT, AND ALSO GAVE SOME WEIGHT TO THE FACT THAT HE HAD, YOU KNOW, ABUSE DURING HIS CHILDHOOD. YOU KNOW, SIGNIFICANT WEIGHT TO HIS CHILD CHILDHOOD ABUSE. THE MITIGATION EFFORTS THEY DID PUT FORWARD WAS GIVEN -- WE HAD A VERY AGGRAVATING CIRCUMSTANCES. SO WITH REGARD TO THAT, THERE DEFINITELY WAS CONSIDERATION GIVEN TO HIS CHILDHOOD ABUSE, ALCOHOLISM. THESE FACTORS WERE CONSIDERED, AND THIS WAS, I BELIEVE MR. WHITE SAID THEY CHOSE WITH REGARDS TO MITIGATION. A COUPLE OF OTHER ISSUES WITH REGARDS TO WHETHER OR NOT THE -- OF THE HAC AGGRAVATOR, I BELIEVE MADE BY CLOSING COUNSEL. STATE WOULD NOTE JUST AT THE OUTSET THAT THERE WAS A VARIETY OF AGGRAVATORS FOUND HERE. WE HAD PRIOR VIOLENT FELONY. THIS WAS AN INDIVIDUAL WHO WAS ON PROBATION, THIS WAS AN INDIVIDUAL WHO COMMITTED THIS CRIME FOR HAC AND CCP. EVEN ASSUMING THE HAC WASN'T PROPERLY FOUND, WE STILL HAVE THESE, YOU KNOW, A GREAT DEAL OF SIGNIFICANT, GREAT DEAL OF AGGRAVATORS HERE. TURNED OUT -- NO, NO, I'M JUST SAYING EVEN IF WE WERE TO MAKE -- EVEN UNDER DR. WRIGHT'S THEORY, HE WAS CONSCIOUS DURING THE ATTACK. RIGHT. THERE'S ACKNOWLEDGMENT. AN INDIVIDUAL WHO WAS APPARENTLY ON THE BED WHEN HE WAS STRUCK BY THE ROCK AND THEN HE ENDS UP EIGHT FEET AWAY IN A BATHROOM. THERE WAS OBVIOUSLY A STRUG AND WE HAVE AN -- STRUGGLE. DO WE HAVE DEFENSIVE SFWHIEWNDZ. HE DID HAVE DEFENSIVE WOUNDS. THERE WAS BRUISES ON HIS ARM, SOME BROKEN RIBS. THERE ARE EXTENSIVE WOUNDS THROUGHOUT HIS BODY, AND ALSO WE DO HAVE HIS TESTIMONY WITH REGARDS TO HOW THE CRIME WAS -- BUT THE DEFENDANT TOLD SEVERAL PEOPLE THAT THIS VICTIM WAS CONSCIOUS DURING THE ATTACK. YES, HE DID. YES, HE DID. LIKE I SAID, NOT CONCEDING ANYTHING, EVEN IF THE COURT WAS TO MAKE A FINDING. IF THERE ARE NO OTHER QUESTIONS, YOUR HONOR, WE WOULD JUST ASK THAT YOU AFFIRM THE DENIAL OF THE MOTION. THANK YOU. REBUTTAL? MAY IT PLEASE THE COURT? I'D LIKE TO TOUCH BRIEFLY ON WHAT HAS BEEN DISCUSSED WITH REGARD TO THE STRATEGIC DECISION OF WHETHER TO PUT ON DR. McMAN IN EITHER A SENTENCING HEARING BEFORE THE JURY OR IN A SPENCER HEARING. AND IT SEEMS VERY, VERY UNUSUAL TO ME THAT AN INDIVIDUAL WHO THE WORST THEY COULD BRING OUT WAS ANTISOCIAL BECAUSE THAT WAS THE TESTIMONY BY MR. WHITE, THAT NOW WE'RE AFRAID TO SHOW THAT TO THE JURY WHEN THERE'S EVIDENCE THAT HE COMMITTED TWO OTHER MURDERS. THE JUDGE ALREADY KNEW THAT MR. BOWLES WAS A SUSPECT IN SEVERAL OTHER MURDERS, BUT THE FACT THIS HE WAS SIMPLY ANTISOCIAL, IF THAT WAS THE STRATEGIC DECISION, THEN I SUGGEST TO THE JUSTICES THAT THAT WAS NOT A REASONABLE -- DOESN'T APPEAR TO ME THAT THAT WOULD BE A REASONABLE INTERPRETATION OF WHAT MR. WHITE TESTIFIED TO, AND ALSO WHAT THE TRIAL COURT FOUND MR. WHITE'S TESTIMONY WAS ABOUT. BECAUSE I SEE THAT WHAT BILL WHITE WAS CONCERNED ABOUT WAS THAT IF I PUT THIS WITNESS ON THE STAND, THEN THE DETAILS OF THESE PRIOR MURDERS ARE GOING TO BE SPREAD ALL OVER THE COURTROOM FOR A PERIOD OF TIME THAT I'VE GOT THIS WITNESS UP THERE. AND IS THAT WORTH IT? TO GET SOME MINIMUM AMOUNT OF HELP THAT THIS, THAT DR. McMAN COULD GIVE ME ON SOME TYPE OF MITIGATION? ISN'T THAT, WASN'T THAT THE BASIS OF HIS DECISION? I THINK SO, BUT I ALSO THINK THE TRIAL JUDGE KNEW ABOUT THE OTHER HOMICIDES THAT MR. BOWLES WAS CONVICTED OF. I THINK THE TRIAL COURT KNEW ABOUT THE HOMICIDE THAT MR. BOWLES WAS SUSPECTED OF COMMITTING, SO IT WASN'T GOING TO BE SURPRISING EVIDENCE AT A SPENCER HEARING. BUT AT LEAST THAT'S MY OPINION WITH REGARD TO THE ANTISOCIAL BEHAVIOR. COULD YOU TOUCH, THEN, ON THE -- LET'S JUST SAY WE AGREED ON THE DEFICIENT PERFORMANCE, THAT IT SHOULD HAVE BEEN OFFERED AT LEAST AT THE SPENCER HEARING. PREJUDICE. YOUR CO-COUNSEL MAKES A BIG YOU WANT PO POINT OF SAYING THAT, YOU KNOW, THIS COULD HAVE BEEN STATUTORY MENTAL MITIGATION. I DON'T SEE IT. COULD YOU HELP ME SEE HOW THIS COULD BE STATUTORY MENTAL MITIGATION THAT MR. CROP TESTIFIED TO OR DR. McMAN WAS PREPARED TO TESTIFY TO? I THINK WITH WHAT THE COURT HAS BEFORE IT, I DON'T THINK THERE IS STATUE TOY MENTAL MITIGATION. AND WITHOUT, THAT YOU KNOW, YOU'RE AN EXPERIENCED CRIMINAL DEFENSE ATTORNEY, THIS IS, IT'S ALMOST AS IF WHEN THE LEGISLATURE WAS WRITING THE BOOK ON AGGRAVATION THAT THEY HAD THIS CASE BECAUSE I DON'T THINK THERE'S ANY AGGRAVATION, STATUTORY AGGRAVATION THAT ISN'T INVOLVED EXCEPT MAYBE UNDER A CHILD UNDER 12 OR AN ELDERLY PERSON. I MEAN, THERE'S SUBSTANTIAL AGGRAVATION IN THIS CASE, AND YOU'VE GOT, YOU KNOW, THEN IN YOU HAVE -- IF OUT OF NONSTATUTORY MITIGATION, HOW DOES THAT UNDERMINE CONFIDENCE IN THE OUTCOME OF THE PENALTY PHASE? WELL, RESPECTFULLY, PARDON ME, AND I'VE PRACTICED LAW WITH MR. WHITE. NOT IN THE SAME FIRM BUT FOR OTHER 30 OVER 30 YEARS, I THINK WHAT HE COULD HAVE DONE WAS HIRE DR. CROP OR SOME OTHER MENTAL HEALTH EXPERT TO EXPLORE JUST THE ISSUE OF THE COGNITIVE DISABLED AND PURSUE THAT FURTHER. WELL, THAT SOUNDS INTERESTING, BUT WHO WAS THE COUNSEL IN THIS EVIDENTIARY HEAR ANYTHING THIS CASE? I WAS. WELL, ALL RIGHT, YOU HIRED DR. CROP. DID YOU, WERE YOU ABLE TO DEVELOP STATUTORY MENTAL MITIGATION? NOT WITHIN THE TIME PERIOD THAT WE WERE PROVIDED. THERE WAS, THERE WAS ALSO THE ISSUE OF WHAT WE COULD PRESENT TO THE COURT. NOT THAT THE COURT LIMITED US PARTICULARLY, IT'S JUST THAT WE SIMPLY DID NOT HAVE RESULTS FROM A SCAN THAT WE -- WELL, IS THAT AN ISSUE HERE THAT YOU NEEDED A CONTINUANCE OR THAT THERE WASN'T TIME TO DEVELOP THIS RECORD? NONE WHATSOEVER. WE WERE UNABLE TO DEVELOP STATUTORY MITIGATION BASED ON THE TEST WE DID WITH DR. CROP. WE WERE UNABLE TO DO THAT. WHETHER FURTHER TESTS WOULD HAVE EXPOSED THAT OR NOT, I DON'T KNOW. THE OTHER ISSUE I'D LIKE TO ADDRESS WITH THE COURT IS THAT FOUND IN THE PETITION FOR WRIT OF HABEAS CORPUS, AND IN THE, IN THERE WE COMPLAIN ABOUT THE STATE'S CONDUCT AND ITS CHARACTERIZATION OF WHAT WE THINK IS MINIMIZING -- IS THIS SOMETHING THAT THE STATE ARGUED? IN -- IN THE ORAL ARGUMENT? BEFORE TODAY? NO, SIR. NO, TODAY. NO, SIR. I THINK PROBABLY IT'D BE BETTER TO KEEP YOUR REMARKS TO REBUTTAL, AS YOU'VE RESERVED. I THINK YOU HAVE BRIEFED THOSE ISSUES -- I THINK IN LIGHT OF THE -- FOR YOU TO BRING UP ON REBUTTAL A NEW ISSUE THAT THEY DIDN'T HAVE AN OPPORTUNITY TO RESPOND TO. I THINK IN LIGHT OF THE LACK OF THE DEVELOPMENT OF THE MENTAL MITIGATION, IF THEY COULD HAVE EVEN GOTTEN THERE COUPLED WITH THE ISSUES WE BRIEFED IN THE PETITION FOR WRIT OF HABEAS CORPUS, THERE WAS, INDEED, ERROR ON THE PART OF THE TRIAL COURT -- WOULD YOU COME BACK AND SUM UP BECAUSE YOU CAN SEE WE'RE HAVING DIFFICULTY WITH THE ARGUMENT THAT COUNSEL WAS INEFFECTIVE, YOU KNOW, FOR NOT PUTTING ON THE MENTAL HEALTH EXPERTS. AND YOU HAVE CONCEDED AT THE OUTSET THAT AT LEAST ON THIS RECORD THAT YOU COULD NOT HAVE ESTABLISHED THE STATUTORY MENTAL HEALTH MITIGATORS. GIVE US YOUR BEST SHOT AS TO WHAT ON THIS RECORD COUNSEL COULD HAVE ESTABLISHED THAT WOULD HAVE BEEN SO DRAMATIC AS TO UNDERMINE CONVERSATION IN THE OUTCOME OF THIS CASE. ON THIS RECORD, WHAT -- AND THAT'S WHAT I'M MISSING, THAT IS THAT YOUR ASSERTION THAT, WELL, LET'S TAKE THE RECORD AS WE HAVE IT AND THE TESTIMONY OF THE LAWYER AND THE TESTIMONY OF THE MENTAL HEALTH EXPERTS AND IT'S OBVIOUS FROM THAT THAT HERE'S WHAT HE COULD HAVE DONE THAT HE DIDN'T DO THAT WOULD HAVE DRAMATICALLY AFFECTED THIS CASE. WHAT IS IT THAT IS THERE? BECAUSE THE VIEW THAT WE APPEAR TO HAVE RIGHT NOW IS THAT THE LAWYER BENT OVER BACKWARDS IN CONSULTATION WITH THE MENTAL HEALTH EXPERT REALLY STRUGGLED WITH WHETHER OR NOT TO CALL HER AND THAT ULTIMATELY, REALLY, THEY MADE A JOINT DECISION THAT IT WOULD NOT BE GOOD FOR THE DEFENDANT FOR HER TO TESTIFY BECAUSE OF THINGS LIKE THE SOCIAL DEVIANT BEHAVIOR AND OTHER FACTORS. SO WHAT'S YOUR BEST SHOT AS TO SOMETHING DRAMATIC THAT THE LAWYER COULD HAVE DONE GIVEN THE RECORD AS IT EXISTS HERE? JUSTICE, I DON'T HAVE A DEFINITE ANSWER TO THAT QUESTION. I DO THINK HE SHOULD HAVE PRESENTED THE TESTIMONY OF DR. McMAN AT A SPENCER HEARING IN AN EFFORT TO TIE IN THESE NONSTATUTORY MITIGATORS. WHETHER THAT WOULD HAVE BEEN DRAMATIC, I DON'T KNOW. THANK YOU. WE THANK YOU FOR THE ARGUMENTS. ALSO BEFORE WE TAKE OUR RECESS, I BELIEVE WE HAVE HAD ADDITIONAL MEMBERS OF THE TEAM COURT FROM BOTH CLAY COUNTY AND LEON COUNTY HAVE NOW JOINED US, WE WELCOME YOU TO THE ARGUMENTS THIS MORNING. THE COURT WILL TAKE ITS MORNING RECESS.