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Noel Doorbal v. State of Florida

SC05-383 | SC06-1490

>> NEXT CASE IS DOORBAL VERSUS
STATE OF FLORIDA.
>>.
>> MS. SMITH.
>> MELODE.
SMITH ON BEHALF OF KNOW WELL
DOORBAL, THE DENIAL OF THE
POSTCONVICTION PETITION, AND I
THANK THIS COURT AND STAFF FOR
THE KINDNESS AND ACCOMMODATIONS
FOR COUNSEL'S APPEARANCE TODAY.
>> MS. SMITH YOU HAVE A NUMBER
OF POINT, AND IF YOU ARE GOING
TO HIT ON ONLY A COUPLE OF THEM
OR A FEW, WOULD YOU PLEASE
ALERT US TO THOSE SO WE CAN
DRAW OUR ATTENTION TO IT.
>> YES, THE CASE STAND OUT AS
YOU A GREAT EXAMPLE OF HOW THIS
CRIMINAL JUSTICE SYSTEM WORKS,
PARTICULARLY IN CAPITAL CASES,
IT IS NOT BROKEN OR FLAWED, IT
IS WORKING PRECISELY THE WAY IT
WAS DESIGNED TO WORK AGAINST
FOUR PEOPLE, MENTALLY INFIRMED
AND PERSONS WITHOUT PRIOR
RESOURCES AND I WANT TO ADDRESS,
PARTICULARLY, TWO CLAIMS, THE
FIRST CLAIM IS THE NUMBER ONE
CLAIM, IN THE APPEAL, AND THAT
IS THAT JUDGE ALEX, SHOULD HAVE
DISQUALIFIED HIMSELF PRIOR TO
RULING ON THE POSTCONVICTION
PETITION AND SHOULD HAVE DONE
IT FOR A VARIETY OF REASONS.
AND I KNOW YOU HAVE READ THE
BRIEFS AND I DON'T WANT TO TELL
YOU SOMETHING YOU ALREADY READ.
>> ON -- ON THE
DISQUALIFICATION LET'S TALK A
LITTLE BIT AS TO WHY THE CASE
IS OR ISN'T SIMILAR TO A
WATERHOUSE OR RIVERA, WHERE
JUDGES HAVE GONE BEFORE PAROLE
COMMISSIONS AND REALLY
EXPRESSED A VERY, VERY NEGATIVE
VIEW OF A PARTICULAR DEFENDANT.
AND HERE IT APPEARS THAT THE
PRIMARY THRUST IS WE HATED
JUDGE THAT COMMENTED UPON ONE
OF THE WITNESSES.
FOLLOWING THAT TRIAL, IS THAT A
FAIR --
>> YES, CHIEF JUSTICE AND NOT
ONLY DID HE COMMENT ON -- HE
DIDN'T JUST DISCUSS WITH THE
FEDERAL COURT JUDGE AT THE
SENTENCING HEARING,
MR. SCHILLER, HE DIDN'T JUST
DISCUSS THE DEMEANOR AS THE
STATE WANTS TO PORTRAY HIS
TESTIMONY, HE WAS A FORMIDABLE
ADVOCATE FOR MR. SCHILLER IN
WANTING A LENIENT SENTENCE FOR
A PERSON WHO HAD BEEN CHARGED
WITH 23 COUNTS OF MEDICARE
FRAUD, $4 MILLION OF MONEY FROM
-- $14 MILLION OF MONEY FROM
MEDICARE AND MADE LIGHT ABOUT
IT IN THE TRIAL --
>> CAN YOU ADDRESS HOW THIS IS
SHOWING BIAS OR A
PRE-DISPOSITION AGAINST YOUR
CLIENT, WHEN WE TAKE A LOOK AT
THAT, IN VIEW OF WHAT WAS SAID
BY JUDGES IN WATERHOUSE AND
RIFF -- RIVERA, DON'T THOSE
CASES DEMONSTRATE A HIGHER BIAS
AGAINST THE CLIENT BECAUSE
REALLY HE SAID NOTHING AS TO
YOUR CLIENT -- OR DID HE?
THAT IS WHAT I AM LOOKING FOR.
>> YOUR HONOR, TO BE PRECISE,
JUDGE ALEX FERRARE SPOKE
CLEARLY THAT MR. SCHILLER WAS A
CRUCIAL AND INDISPENSABLE
WITNESS IN THE CASE THAT LAYS
THE PREDICATE FOR THE DEATH
PENALTY FOR MY CLIENT AND I
THINK THAT REFERS TO MY CLIENT
DIRECTLY.
HE ALSO --
>> BIASED AGAINST YOUR CLIENT?
THAT IS WHAT I AM STRUGGLING
WITH.
>> THIS IS THE MOST TROUBLING
PART FOR ME, WHINE -- WHEN WE
FOUND OUT THAT JUDGE FERRER
MADE THESE ARRANGEMENTS WITH
MR. SHILLER'S ATTORNEY, WHILE
HE HADN'T EVEN RULED ON THE
MOTION FOR NEW TRIAL YET AND
WAS MAKING ARRANGEMENTS TO
TESTIFY, THREE WEEK AFTER THE
MOTION FOR NEW TRIAL WAS RULED
ON, THAT IS WHEN JUDGE FERRER
TESTIFIED AT THE COMPETENCE --
>> LET ME ASK YOU A QUESTION.
WAS HE SUBPOENAED OR
VOLUNTARILY COME.
>> I CAN TELL YOU,
UNFORTUNATELY, MR. -- WOULDN'T
PROVIDE ANY AFFIDAVIT TO THIS,
IN AN INTERVIEW WITH
MR. SHILLER'S ATTORNEY, HE SAID
HE COULDN'T REMEMBER WHEN HE
CONTACTED HIM BUT GAVE ME YOU A
HINT AND SAID, WE HAD TO
PROVIDE THE GOVERNMENT WITH 30
DAY'S NOTICE --
>> IN THE RECORD -- YOU SHOULD
CERTAINLY KNOW IN THE RECORD IF
SHE WAS SUBPOENAED.
>> NOTHING IN THE COURT RECORD
AND WE DON'T DOWN THE COURT
RECORD, TO THE FEDERAL OFFICE
AND GOT THE TRANSCRIPT, AND
THERE WAS NO EVIDENCE THAT HE
WAS SUBPOENAED.
THERE WAS NO EVIDENCE THAT
SHOWS EXACTLY WHEN HE HAD BEEN
CONTACTED OR I WOULD HAVE
PROVIDED IT TO THE COURT.
>> HAS IT BEEN PLACED IN
EVIDENCE IN THIS CASE?
>> WHAT I TOLD YOU, YES, SNIR
PLACED IN EVIDENCE IN THIS CASE
AND THIS RECORD.
>> YES, SIR.
>> CAN YOU SHOW ME WHERE?
>> WHAT DOES THE RECORD SHOW AS
FAR AS WHO INITIATED THE
CONTACT WITH THE JUDGE TO
BECOME A WITNESS AND THEN, TELL
US WHAT HAPPENED AFTER THAT.
IN OTHER WORDS, WHAT DOES THE
RECORD TELL US HOW THIS ALL GOT
STARTED, AND THEN WHAT
HAPPENED.
>> OKAY, THAT WAS A GOOD
QUESTION, THE MOTION TO
DISQUALIFY THE JUDGE WAS FILED
BY CCRC AT THE BEGINNING OF THE
CASE AND I DON'T BELIEVE THEY
PLACED ANYTHING ON THE RECORD.
IN FACT THE DISCUSSION DIDN'T
TAKE PLACE BETWEEN THE JUDGE --
AND THE JNL REFUSED TO
DISQUALIFY HIMSELF WITHOUT A
HEARING.
I DON'T BELIEVE THAT PART OF
THE DISCUSSION CAME ON THE
RECORD.
>> IT IS NOT IN THE MOTION, AND
IT IS -- THAT WHAT IS WE ARE
STRUGGLING WITH.
IT APPEARS TO BE EXTRA RECORD.
EXTRA-RECORD THINGS.
>> I KNOW IT CAME UP SEVERAL
TIMES DURING OUR VARIETY --
NUMEROUS HEARINGS IN CIRCUIT
COURT.
I ASKED THE JUDGE SPECIFICALLY,
I NEED TO -- NEEDED TO KNOW
WHEN, JUDGE, DID YOU LEARN
ABOUT MR. SCHILLER AND KNOW HE
WAS NOT ONLY PROSECUTED BUT, IS
GOING TO BE ARRESTED ON THESE
COURTHOUSE STEPS RIGHT AFTER
HIS TESTIMONY --
>> THE DISCUSSION WENT ON
ALMOST DURING THE TRIAL AND
THIS IS NOT THE WITNESS.
YOU ARE BLAMING THOSE TWO -- I
THINK THE QUESTION WAS, WHERE
IN THE RECORD DOES IT SHOW
ABOUT THE ARRANGEMENTS FOR THE
JUDGE TO BECOME INVOLVED IN
TESTIFYING?
>> HE NEVER PROVIDED THAT
INFORMATION ON THE RECORD.
THOUGH WE ATTEMPTED TO CERTAIN
IT AND IT IS IN THE REPORT THAT
-- YOUR HONOR --
>> WHAT IS THIS DIFFERENCE, IN
YOUR OPINION, IF THE JUDGE
WORKING IN HIS OFFICE ONE DAY,
AND A FEDERAL MARSHAL SERVES A
SUBPOENA ON HIM, AND SAYS, YOU
ARE COMMANDED TO APPEAR AT
SUCH-AND-SUCH A PLACE AND
SUCH-AND-SUCH A TIME.
YOU KNOW, TO TESTIFY.
AND THE JUDGE GOES, PURSUANT TO
THE LAWFUL SUBPOENA THAT HAS
BEEN SERVED ON HIM, AND SWORN
IN AS A WITNESS OR WHATEVER.
AND THEN, THE JUDGE SAYS, THAT
IS PRESIDING OVER THE FEDERAL
HEARING, THAT I'M CONSIDERING,
YOU KNOW, WHAT SENTENCE TO
IMPOSE ON THIS PERSON THAT HAS
BEEN CONVICTED OF THIS CHARGE
AND THAT CHARGE OR WHATEVER.
AND THE FEDERAL PROSECUTOR HAS
TOLD ME THAT THIS FEDERAL
DEFENDANT, YOU KNOW, COOPERATED
IN A PROCEEDING IN THE STATE
COURTS OR WHATEVER.
AND COULD YOU VALIDATE THAT FOR
ME AND TELL ME, YOU KNOW, WHAT
ROLE THIS WITNESS PLAYED IN THE
PROCEEDING AND BLANK CASE,
WOULD THAN APPROPRIATE FOR A
STATE JUDGE TO DO, SINCE THERE
IS A COMPULSION OF THE SUBPOENA
AND IS REALLY BEING ASKED
FACTUAL QUESTIONS ABOUT THE
ROLE THAT THE WITNESS PLAYED?
I MEAN -- NOT -- NOT GETTING IN
TO THE HOSPITAL NOT KNOWING
WHETHER IT APPLIES TO THIS
SITUATION BUT WOULD THAT BE
APPROPRIATE FOR A STATE JUDGE
TO DO.
>> I HOPE NOT, NOT WHILE HE IS
STILL SITTING ON THE CASE.
FOR THE DEFENDANT -- FOR THE
DEFENDANT, WHO HE THEN -- HE
KNOWS THIS CASE IS COMING BACK
ON POSTCONVICTION AND IF THE
COURT UPHOLDS THE CONVICTIONS
AND SENTENCES, SO EVEN IN THAT
SCENARIO WHICH ISN'T THE
SCENARIO, BY THE WAY, BECAUSE
THERE IS NO TESTIMONY, THE
TESTIMONY IN THE FEDERAL
SENTENCING HEARING THAT HAS
BEEN ATTACHED SAYS THAT JUDGE
-- THE JUDGE SAYS HE SPOKE TO
MR. SHILLER'S LAWYER, ABOUT
THIS CASE, AND ONLY ONE REASON
WHY HE IS THERE, NOT BECAUSE OF
THE SUBPOENA, BUT IT IS BECAUSE
HE WANTS TO PROVIDE ADVOCACY,
FOR A LENIENT SENTENCE AND THEN,
HE SAYS A COUPLE OF OTHER
THINGS, IF YOU DON'T MIND ME
SHARING WITH YOU.
HE SAYS -- BESIDES THE FACT
THAT HE SAYS THAT MR. SCHILLER
WAS A CRUCIAL AND IN
DISPENSIBLE WITNESS IN THE CASE,
THAT LAID THE PREDICATE FOR THE
DEATH PENALTY, HE ALSO SAYS THE
CASE BOTHERED HIM TO SUCH AN
EXTENT, THAT HE COULDN'T EVEN
PUT IT INTO WORDS AND COULDN'T
EVEN TELL THEM WHY HE FELT THE
CASE WAS SO BAD.
HE COMPARED HIM IF YOU RECALL
TO A PRISONER OF WAR AND THAT
STRUCK ME AS BEING -- STRUCK ME
AS A VERY SERIOUS IMPACT THAT
IT HAD, THAT THAT TESTIMONY
THAT THAT ENTIRE TRIAL HAD ON
THE JUDGE AND THE JUDGE IS NOT
ON THE BENCH ANYMORE AND THERE
--
>> -- THE FACT THAT THE TRIAL
JUDGE MAY HAVE HAD SOME KIND OF
INTEREST OR SYMPATHY FOR WHAT
THE WITNESS SAID THEY WENT TO
THROUGH, AND TO BY AS AGAINST
YOUR CLIENT.
>> WELL, WHAT I'M CONCERNED
ABOUT IN ADDITION TO WHAT I
HAVE SHARED WITH YOU, MADAME
JUSTICE IS THE JUDGE DID NOT
TELL THE SENTENCING COURT THAT
MR. SHILL ARE IN FACT COMMITTED
PERJURY ON THE STAND AND DIDN'T
TELL THE JUDGE THE FEDERAL
SENTENCING JUDGE WHAT ARE YOU
REFERRING TO AND WHY WOULD THE
JUDGE HAVE ANY KNOWLEDGE
MR. SCHILLER HAD COMMITTED
PERJURY.
>> IF HE WAS TRYING TO COMMENT
ON THE PERFORMANCE OR WHAT
HAPPENED DURING THE TRIAL, AND
HOW THIS WITNESS PUT HIMSELF
OUT FOR THE STATE, IN ORDER TO
GET THE DEATH PENALTY, IT SEEMS
TO ME THAT THE JUDGE WOULD HAVE
ALSO SAID, YOU KNOW, IT WAS ONE
LITTLE THING, HE ACTUALLY LIED
ABOUT HIS INVOLVEMENT IN
MEDICAID FRAUD.
>> REALLY WHAT IT WAS -- LIKE A
DEFENDANT SAYS, I DIDN'T DO
THAT AND LATER ON, IT IS EITHER
PROVEN THAT HE DID OR DID NOT
AND SO YOURS WOULD REQUIRE HIM
TO ADMIT, I AM A -- VIOLATING
THE LAW, I MEAN, SO THAT MAKES
IT DIFFICULT BECAUSE AT THE
TIME HE WAS NOT CONVICTED,
CORRECT AND --
>> CORRECT HE COULD HAVE --
>> AND NOT INDICTED AND HAD NOT
BEEN ARRESTED, CORRECT AND HAD
NOT ENTERED A PLEA, THOSE ARE
ALL DIFFICULT AND THINGS OUT
THERE THIS MAY BE GOING AROUND
AND YOU SAY PERJURY AND THAT
MAKES IT A LITTLE DIFFICULT
BECAUSE NONE OF THAT HAD
HAPPENED.
>> YOUR HONOR HE WAS NEVER
ASKED THAT HE WAS INDICTED --
THE ARREST -- HE WAS ASKED IF
HE WAS INVOLVED AND --
>> THE JUDGE MUST HAVE KNOWN HE
WAS INVOLVED BECAUSE HE WAS
BEFORE HIM IN THE FEDERAL
COURT.
>> MY POINT EXACTLY AND THE
JUDGE DIDN'T PROVIDE THAT
LITTLE DETAIL.
>> YOU HAVE OTHER POINTS, YOU
USED A LOT ON THIS ONE.
>> IT IS A VERY IMPORTANT ONE
AND I THINK THE DISPOSITIVE
CLAIM, BECAUSE EVERYTHING AFTER
THAT, DEMONSTRATES THE FEAR
THAT A JUDGE WOULD THEN DENY
CLAIMS, SDEE MY MOTIONS FOR
CONTINUANCE AND DENY
OPPORTUNITIES TO.
>> YOU HAVE A NUMBER OF CLAIMS
CONCERNING THE FAILURE TO --
WELL, DENIAL OF A NUMBER OF
MOTIONS FOR CONTINUANCE, IF YOU
WOULD, WOULD YOU PLEASE TELL US
WHY IT WAS ERROR FOR THE TRIAL
COURT TO HAVE DENIED THE MOTION
FOR CONTINUANCE BASED ON TRIAL
COUNSEL'S -- THE DEATH OF HIS
FATHER, THE ILLNESS OF HIS
MOTHER, THAT ASPECT OF THE
CONTINUE NUNSES.
>> OKAY.
THAT REALLY IS ONE OF THE
THREE CLAIMS, ISSUES I WOULD
LIKE TO ADDRESS FIRED AS FAR AS
MR. DOORBAL'S PETITION AND ONE
IS INEFFECTIVE ASSISTANCE OF
TRIAL COUNSEL.
AND MR. DOORBAL DID NOT HAVE AN
ATTORNEY SEATED NEXT TO HIM, HE
HAD A DPREEFING SON.
, IS IT NOT REQUIRED -- A
GRIEVING SON.
>> , IS IT NOT REQUIRED YOU
DEMONSTRATE THE DEFICIENCIES,
AND NOT THAT HE IS EMOTIONALLY
NOT THERE AND MANY OF US HAVE
SICK KIDS AND PROBLEMS AND SO
-- THE QUESTION IS, HOW DOES IT
IMPACT -- SENT, REALLY --
>> AND DEMONSTRATE NOT ONLY THE
DEFICIENCIES BUT I'M SURE,
JUSTICE QUINCE WILL ASK ABOUT
PREJUDICE AND FIRST,
DEFICIENCIES.
DEFICIENCIES INCLUDE THE FACT
THAT HE WASN'T THERE, NOT A
PERSON WHO -- YOU ROB THE
DIRECT APPEAL.
HE DIDN'T OBJECT TO ALMOST --
HARDLY ANY OF THE ERRORS THAT
WERE COMMITTED IN THE TRIAL
COURT AND THAT WAS BROUGHT UP
BY THE DIRECT APPEAL ATTORNEY.
HE WASN'T AT THE PRETRIAL
HEARING AND WASN'T AT THE
DEPOSITIONS AND CALLED MORE
THAN 90 WITNESSES AND DIDN'T
ATTEND MOST OF THOSE DEPOSITIONS
AND CRUCIAL PRETRIAL HEARINGS
RIGHT BEFORE THE TRIAL.
>> HAVE YOU ARGUED IN YOUR
BRIEF, I DON'T REMEMBER YOU
ARGUING --
>> YES, IN THE FACTS SECTION,
BUT I SPECIFICALLY SAID, FOR
EXAMPLE IN OCTOBER OF 1997,
THERE WAS A PRETRIAL HEARING
ABOUT THE INVESTIGATION
REGARDING SCHILLER.
HE WASN'T THERE.
>> WAS THERE OTHER COUNSEL
THERE.
>> NO.
>> FOR THE DEFENDANT --
>> OTHER CO-DEFENDANTS, BUT NOT
COUNSEL FOR DOORBAL AND SAME
THING HAPPENED TWO WEEKS BEFORE
TRIAL WHEN -- IN JANUARY, THERE
WAS ANOTHER HEARING ABOUT --
SCHILLER AND -- AGAIN, COUNSEL
WAS NOT THERE AND WHERE WAS HE,
ON THE RECORD IN THAT HEARING,
AND --
>> 90-SOME DEPOSITIONS IN THE
CASE.
>> I DON'T KNOW IF THEY
DISPOSED EVERYBODY, THERE WERE
90 WITNESSES LISTED AND I THINK,
ACTUALLY, I'M SORRY, MORE THAN
THAT LISTED, AND 90 WITNESSES
CALLED IN THE CASE.
>> AND HE DID NOT ATTEND ANY
DEPOSITIONS.
>> NO, I DIDN'T SAY DIDN'T
ATTEND ANY, HE DIDN'T ATTEND
MOST OF THEM AND --
>> AND HOW MANY DID HE NOT
ATTEND.
>> I DON'T HAVE AN EXACT
NUMBER.
>> ISN'T THAT SOMETHING YOU
NEED TO PROVE TO US, TO SHOW
THERE WAS A DEFICIENCY HERE.
>> IN AN EVIDENTIARY HEARING I
WOULD HAVE BEEN GLAD TO PROVIDE
THE EVIDENCE AND WOULD HAVE
BEEN GLAD TO HAVE GATHERED THAT
WITH MR. -- HIS HELP AND EVEN
IF HE WASN'T ON THE RECORD
OFFICIALLY, HE KNOWS WHEN HE
POPPED --
>> WHAT DID YOU -- LET ME --
WHAT DID YOU SET FORTH AS -- IN
YOUR MOTION AS TO THE
PREJUDICE.
>> IN TERMS OF PREJUDICE, AGAIN,
NOT ATTENDING THESE PRETRIAL
HEARINGS, DEPOSITIONS, DURING
THE CRITICAL -- DURING THE
CRITICAL TIMES, LEADING UP TO
THE TRIAL, MR. -- HE WAS NOT
AWARE AND COULDN'T
CROSS-EXAMINE, BRING ISSUES TO
BEAR DURING THE TRIAL COURT --
>> I UNDERSTAND THAT THE
GENERAL -- GENERALITY THERE,
TELL ME WHAT YOU PLED AND I'M
LOOKING AT YOUR MOTION AND I
DON'T SEE, WHAT YOU PLED WAS
EVIDENCE THAT EITHER WAS A --
DID NOT -- DID NOT COME OUT, OR
WHAT WAS THAT YOU SAY THAT THIS
LAWYER'S DEFICIENCIES ENDED UP
COSTING AS FAR THAT'S TRIAL IS
CONCERNED.
>> ENDED UP COSTING MR. DOORBAL
HAVING A LAWYER SITTING NEXT TO
HIM, YOUR HONOR AND HAVING A
JURY GO THROUGH A TRIAL
ESSENTIALLY WITH A LAWYER THAT
DIDN'T OBJECT THROUGHOUT THE
WHOLE TRIAL, NOT CRAMMING
WITNESSES AND WHEN HE --
CROSS-EXAMINING WITNESSES AND
WHEN HE DID, NOT EFFECTIVELY,
AND WHAT HE WANTED TO SAY IF
THERE WOULD HAVE BEEN AN
EVIDENTIARY HEARING, THE FIRST
TIME HE REALIZED THESE ERRORS
OCCURRED, WAS WHEN HE READ THE
OPINION THOUGH COURT, HE DIDN'T
REMEMBER BEING THERE, SO NUMB
FROM LOSING HIS FATHER TWO
WEEKS BEFORE THE TRIAL STARTED
AND IF ANYBODY LOST A LOVED ONE
YOU KNOW FOR A TIME YOU ARE OUT
OF IT AND DON'T HAVE A CLUE
WHAT IS GOING ON AND KNOW
ENOUGH TO WITHDRAW.
AND I SAID WHY DIDN'T YOU
WITHDRAW AT THAT POINT AND HE
ASKED FOR A MONTH'S CONTINUANCE
AND COURT GAVE HIM TWO WEEKS
AND DIDN'T ARGUE WITH HIM AND
HIS MOTHER WAS STILL IN THE
HOSPITAL DURING ALL OF THIS
TIME AND HAD SO MANY FAMILY
PROBLEM AND FINANCIAL HARDSHIPS
AN BLESS HIS HEART HE DID THE
BEST HE COULD BUT WASN'T THERE
AND ISN'T TANTAMOUNT TO A
LAWYER SLEEPING OR WHO HAD
ALZHEIMER'S OR DRUNK, THIS IS
SOMEBODY WHO IS NOT THERE AND
THAT IS MR. DOORBAL'S -- THE
EFFECT OF HAVING NO LAWYER AT
HIS TRIAL.
>> PLEASE, GO AHEAD, PLEASE,
RESPOND TO THAT.
BECAUSE YOU ARE DOWN TO JUST A
FEW MINUTES.
>> RIGHT.
LET'S TALK ABOUT THIS PENALTY
PHASE, I DON'T KNOW HOW MANY
TIMES I HEARD JUSTICE PARIENTE
TELL PEOPLE AT MINIMUM YOU NEED
SCHOOL RECORDS AND HAD A PEN
ENALITY PHASE LAWYER --
>> WITH WHAT DOES THE -- IN
THIS RECORD.
>> IT SHOWS HE DID NOT PASS TWO
GRADES, THEY ACTUALLY HAD --
GAVE HIM ALL Fs AND I FINALLY
GOT THE SCHOOL RECORDS, BY THE
WAY.
>> AGAIN THE MOTION WAS FILED
IN JUNE, OF '04.
>> YES, SIR.
>> EVIDENTIARY HEARING WAS
GRANTED, AND DIDN'T EVEN HAVE
THE HEARING ON THAT UNTIL
NOVEMBER.
>> NOT ON THAT ISSUE.
>> AND NO ONE WAS SENT TO
RETRIEVE THE RECORDS UNTIL
JANUARY OF '05.
AND THOSE WERE THEN NOT REALLY
PLACED IN EVIDENCE, WERE THEY
PROPER.
>> YES.
>> LET ME --
>> I DON'T RECALL SEEING THOSE
BEING PROFFERED IN TO EVIDENCE
OR ANY PROFFER OF TESTIMONY, AT
THE EVIDENTIARY HEARING, ARE
YOU TELLING ME THIS RECORD
SHOWS THERE IS A PROP PROFFER
OF EVIDENCE BY MR. DOORBAL, AT
THE EVIDENTIARY HEARING.
>> I BELIEVE IT WAS ON JANUARY
21.
I WROTE IT ON A PIECE OF PAPER
AND ASKED THE JUDGE IF I COULD
PUT IT ON THE RECORD AND HE
SAID, NO, GIVE US WHAT YOU
WROTE.
AND THAT WAS THE PROFESSORER
AND BASICALLY IN THERE I TALKED
ABOUT THESE RECORDS AND NOW YOU
ARE ASKING WHY WE DIDN'T GET
THEM UNTIL JANUARY AND I'M NOT
SURE WHERE WE ARE GOING BUT --
>> THE INVESTIGATOR WENT TO
TRINIDAD AROUND JANUARY TO GET
THE RECORDS.
>> POSTCONVICTION INVESTIGATOR.
>> THAT'S WHAT I'M TALKING
ABOUT.
>> THE INVESTIGATOR WHO WENT
BEFORE THE TRIAL, GOT NOTHING.
THEY SAID IN FACT ON THE RECORD,
IT IS IN THE RECORD THERE WAS A
FIRE THAT THE RECORDS ARE
DESTROYED AND THAT IS JUST NOT
TRUE.
NO HEALTH RECORDS AND TRIAL
RECORDS AND NO BIRTH RECORDS,
NO SCHOOL RECORDS THAT WOULD
HAVE SHOWED THAT MR. DOORBAL
WAS NOT THE BRAIN TRUST FOR --
ANYBODY ELSE MIGHT HAVE EVER
BELIEVED THAT HE WASN'T
ORGANIZED AND WASN'T METHOD --
METHODICAL AND I DON'T THINK HE
IS MENTALLY RETARDED, I HIRED
AN EXPERT TO LOOK AT THAT.
BUT THIS IS NOT -- THIS IS
SIGNIFICANT MITIGATION THAT
SHOULD HAVE BEEN PRESENTED AT
TRIAL.
THIRD, ISSUE IS THE GIGLIO
CLAIM AND I HAVE BEEN TOLD BY
THE ESTATE AND THE COURT, THIS
CLAIM WAS RAISED AND ADDRESSED
AND PROCEDURALLY BARRED ON --
IN THE MOTION FOR NEW TRIAL,
THAT IS JUST NOT FACT, THAT IS
REVISING HISTORY AND BRADY WAS
RACED AND IT WAS AN ISSUE THE
COURT DEALT WITH BUT NOT
GIGLIO.
IT DOESN'T REQUIRE PREJUDICE
AND IS A CLAIM THAT STATES CALL
THE WITNESS TO THE WITNESS
STAND WHO THEY KNOWINGLY -- WHO
THEY KNEW WAS TESTIFYING
FALSELY, NOT WHETHER HE WAS
GUILTY OR INNOCENT, WE HAVE
ESTABLISHED THAT.
THAT IS AFTER THE FACT.
THEY KNEW THAT HE WAS
TESTIFYING FALSELY, AND IT WAS
TO A MATERIAL FACT AND THIS HAD
TO DO WITH HIS INVOLVEMENT IN
MEDICARE FRAUD WHICH THE STATE
ALLEGED WAS THE MOTIVE FOR ALL
OF THESE HORRIBLE ACTS AGAINST
HIM.
AND GIGLIO IS AN IMPORTANT
CLAIM AND I WILL RELY ON THE
RECORD FOR THAT BECAUSE I'M
PROBABLY OUT OF TIME AND --
>> ISN'T THAT A CASE WHERE THE
DEFENSE KNEW ABOUT THAT?
KNEW HE WAS BEING INVESTIGATED
FOR FRAUD AND HE ESSENTIALLY --
THE DEFENSE KNEW HE HAD
COMMITTED FRAUD.
>> AND YOU KNOW WHAT?
WE WILL NOT QUIBBLE WITH WHO
KNEW WHAT.
THE QUESTION IS, STATE CALLED
THE WITNESS, TO THE STAND WHO
THEY KNEW WAS TESTIFYING
FALSELY, AND DID NOTHING
ACCORDING TO GUZMAN AND -- IT
IS -- IF NOTHING ELSE TELL THE
JAR AND THE JUDGE HE'S BEING
DISHONEST AND IT DIDN'T HAPPEN
AND THEY SAID THEY GOT THE
TESTIMONY IN THROUGH DELGADO
AND THAT IS NOT TRUE, THE
CLOSING ARGUMENT THE STATE
ATTORNEY SAYS BELIEVE HIM OR
NOT, YOU KNOW, YOU'LL MAKE THE
DECISION.
THEY WERE NOT FORTHCOMING AND
DID NOT UPHOLD THAT PART OF THE
LAW.
>> YOU UTILIZED ALL YOUR TIME
BUT I WILL GIVE YOU A COUPLE
MINUTES.
>> SORRY.
THANK YOU.
>> TO RESPOND.
>> MAY IT FLEES COURT,
ASSISTANT ATTORNEY GENERAL ON
BEHALF OF THE STATE, SANDRA
JAGGARD WITH REGARD TO THE
DISQUALIFYING ISSUE, ITS IN
EFFICIENT AND IS GROSSLY
UNTIMELY AND THE TRIAL COURT
PROPERLY DENIED THE MOTION --
>> MAY I ASK THIS QUESTION.
IS IT IN THE RECORD AS TO
WHETHER JUDGE FERRER WAS
SUBPOENAED OR NOT?
>> I'M NOT ENTIRELY SURE.
I DO KNOW --
>> I'M ASKING, IS THAT -- THE
CANONS REQUIRE -- THEY PROVIDE
THAT THEY SHALL NOT TESTIFY
VOLUNTARILY AND AS TO A JUDGE
MAY NOT INITIATE COMMUNICATION
TO A SENTENCING JUDGE OR
PROBATION CORRECTIONS OFFICER
BUT MAY PROVIDE FOR SUCH
INFORMATION FOR THE RECORD IN
RESPONSE TO A FORMAL REQUEST.
AND TO ME, I KNOW WE HAVE THESE
CASES INVOLVING THE PAROLE
COMMISSION, BUT AS FAR AS THE
-- WHAT WAS ALLEGED, THE
TESTIMONY SEEMS TO HAVE GONE
BEYOND, HE WAS A HELPFUL
WITNESS, THE JUDGE TALKED ABOUT
HIS OWN EMOTIONAL STATE IN
TERMS OF SYMPATHY FOR THIS
DEFENDANT AND ACTUALLY GAVE HIS
RECOMMENDATIONS AS TO WHAT HE
THOUGHT HE SHOULD GET AT THE
SENTENCE AND SEEMS LIKE IT WENT
BEYOND FACTUAL -- HELPFUL OR
TESTIFYING THAT HE WAS HELPFUL
IN THE TRIAL AND I KNOW YOU
WANT TO TALK ABOUT IT NOT BEING
TIMELY BUT WOULD LIKE TO TALK,
TO ME, THAT CAUSES ME GREAT
CONCERN, IF HE WAS NOT
SUBPOENAED AND THE TESTIMONY IS
WHAT IS IN THE RECORD, AS FAR
AS WHAT WAS IN THE SENTENCING
HERE.
>> THIS IS NO ALLEGATION IN THE
MOTION TO DISQUALIFY THAT SHE
WAS NOT SUBPOENAED OR ABOUT IT
BEING PREARRANGED OR NO
ALLEGATION ABOUT IT BEING A
CONSPIRACY AND I AM NOT SURE --
>> CONSPIRACY?
I AM NOT SAYING CONSPIRACY,
SOMETIMES JUDGES, WHETHER --
RULES ARE CLEAR ON THIS, AND
I'M --
>> THAT WAS A SUGGESTION MADE
THEN BREEFERX SOMEHOW IT WAS A
CONSPIRACY BETWEEN THE STATE
AND THIS JUDGE TO HAVE HIM
TESTIFY SO THE STATE DIDN'T
HAVE TO.
BECAUSE THE STATE GAVE THIS MAN
NO BENEFIT, WE HURT HIM.
BUT NONE OF THEAL ALLEGATIONS
WERE IN THE MOTION AND I THINK
JUDGE FERRER WHEN MS. SMITH
ASKED ABOUT WHAT HAPPENED WITH
THIS TOLD HER SHE WAS
SUBPOENAED BUT I'M NOT SURE
THAT IS IN THE RECORD.
>> YOU HAVE ANSWERED THAT ONE,
BUT YOU BELIEVE THAT THAT IS --
HOW ABOUT THIS SECOND, THAT IT
GO OVER THE TOP, AS -- WHAT THE
QUESTION.
>> THOSE INVOLVED IN WATERHOUSE
AND RIVERA, ALTHOUGH THOSE SAY
-- ALLOWED TO SAY THE PERSON
WAS BAD, A CASE LIKE SUAREZ,
YOU CAN'T GO THE STEP FURTHER
AND SAY THE PERSON NEEDS THE
DEATH PENALTY AND THAT IS WHAT
SHE IS SAYING, WOULD YOU
ADDRESS THAT PART OF THE
QUESTION.
>> HONESTLY, HIS TESTIMONY, IF
YOU READ THIS IS FINDINGS ON
THE PRIOR VIOLENT FELONYING A
VARIETY THEY ARE ALMOST
IDENTICAL TO HIS TESTIMONY.
SO IF IT IS PROPER FOR HIM TO
HAVE FOUND THAT IT IS PROPER
FOR HIM TO HAVE MADE THOSE
STATEMENTS ABOUT HIS FINDING TO
A FEDERAL JUDGE AND SO, NO, I
DON'T BELIEVE IT GOES OVER THE
TOP.
>> WITH REGARD TO --
>> LET ME ASK YOU ABOUT THE
LAWYER AT TRIAL, AND THE FACT
THAT HIS FATHER DIED AND THAT.
HOW MANY DEPOSITIONS DID HE NOT
ATTEND?
>> I HAVE NO IDEA, BECAUSE THAT
IS COMING UP FOR THIS FIRST
TIME THIS MORNING.
ABOUT HIM ATTENDING DEPOSITIONS
OR NOT ATTENDING THIS
DEPOSITIONS AND NONE OF THIS
WAS ALLEGED IN THE MOTION.
I DON'T RECALL.
>> WHAT WAS ALLEGED IN THE
MOTION.
>> NOT -- IT SAID HIS FATHER
WAS DYING, HE HAD FINANCIAL
PROBLEMS AND THEREFORE HE WAS
INEE EFFECTIVE AND HE WAS
INEFFECTIVE BECAUSE HE DIDN'T
RAISE THE ISSUES RAISED ON
DIRECT APPEAL WHICH THIS COURT
REJECTED.
AND THAT IT WAS THE OTHER
CLAIMS OF INEFFECTIVENESS IN
THE MOTION, WHEN WE HAD THE
HUFF HEARING, THE GUILT PHASE
AND THE INEFFECTIVENESS CLAIM
SAID NOTHING, IT SAID HE SHOULD
HAVE HIRED EXPERTS AND
PRESENTED WITNESSES AND
EVIDENCE AND THERE WAS NO
NAMING OF WITNESSES, NO NAMING
OF EXPERTS, NO TOPIC OF
DISCUSSION OF ANY OF THIS
TESTIMONY.
WHEN WE HAD THE HUFF HEARING,
THE JUDGE SAT THERE, AND
CONTINUALLY ASKED THE DEFENDANT,
WHAT EVIDENCE IS THIS?
YOU HAVE NOT ALLEGED THIS.
WHAT IS IT?
SHY WOULDN'T GIVE A RESPONSE,
SHE SAID HER INVESTIGATOR KNEW,
WE TOOK A BREAK SO SHE COULD
TALK TO HER INVESTIGATOR AND
CAME BACK AND SAID IT IS THIS
TIMELINE AND HE SAID WHAT ABOUT
IT, THE CRIMES OCCURRED OVER A
LONG PERIOD OF TIME, WHAT ABOUT
A TIMELINE?
AND A TIMELINE.
AND THAT IS HOW IT ENDED UP
BEING SUMMARILY DENIED IS THERE
WAS NOTHING THERE AND AS FAR AS
GRANTEDDING A CONTINUED NEWS
THERE IS NOTHING IN THE RECORD
THAT SHOWS THE TRIAL COURT
DENIED THAT LAST MOTION FOR
CONTINUANCE, HE GRANTED
NUMEROUS MOTIONS FOR
CONTINUANCE AND THE RECORD
SHOWS THAT THE TRIAL WAS
SCHEDULED TO START THE DAY THE
CONTINUANCE WAS SOUGHT, AND IT
DIDN'T ACTUALLY START FOR 25
MORE DAYS ON A REQUEST FOR\\##$$
30-DAY CONTINUED NUNS WHICH
SOUNDS TO ME LIKE IT WAS
KRANTED AND THERE IS NOTHING
ELSE IN THE RECORD COMPLAINING
-- GRANTED AND THERE IS NOTHING
ELSE IN THE RECORD COMPLAINING
I'M NOT READY TO GO AND WHEN
THE TRIAL STARTED THE ATTORNEY
MADE NO COMPLAINT THAT HE WAS
NOT READY.
WITH REGARD TO THE SCHOOL
RECORDS, IN FACT THE STATE HAD
GOTTEN THE SCHOOL RECORDS ABOUT
THIS DEFENDANT AND HAD PROVIDED
THEM TO THE DEFENSE COUNSEL AND
DEFENSE COUNSEL ATTENDED --
SENT AN INVESTIGATOR TO
TRINIDAD TO SPEAK TO THE FAMILY
AND SCHOOL TEACHERS PRETRIAL
AND WHAT THE SCHOOL YARDS SAID
ABOUT MR. DOORBAL IS HE WAS THE
MOST DESTRUCTIVE STUDENT
DESERVING OF THE WORST CONDUCT
MARK POSSIBLE AND EXTREMELY
DIFFICULT STUDENT WHO
DELIBERATELY SET OUT TO DISRUPT
THE GOOD ORDER OF THE SCHOOL.
I THINK NOT PRESENTING THAT TO
A JURY MIGHT JUST HAVE BEEN A
GOOD IDEA.
>> ONE AREA, COUNSEL IS
SUGGESTING THAT THERE WAS SOME
TYPE OF PROFESSORER, ACTUALLY
MADE --
PROFESSORER AND WAS THERE A
PROFFER IN THE HAND-WRITTEN
SCRAP PIECE OF PAPER?
I'M NOT SEEING THAT.
>> THERE WAS NO PROFFER THAT I
RECALL, IT WAS A PROFFER ABOUT,
I'VE HAD HIM EVALUATED AND THE
EXPERTS NEED MORE TIME AND
THAT'S NIGHT I UNDERSTAND THAT,
BUT --
>> BUT NOT ABOUT WHAT ANY OF
THESE EXPERTS WOULD SAY AND THE
STATE IN FACT SOUGHT TO HAVE
AFFIDAVITS PRODUCED FROM
EXPERTS ABOUT WHAT THEY HAVE
REVIEWED AND NEED TO REVIEW AND
WE DIDN'T GET THAT.
>> SHE MADE REFERENCE THIS
MORNING TO A HAND-WRITTEN PIECE
OF PAPER.
>> SHE --
>> AND IS THAT IN THE RECORD
SOMEWHERE.
>> IT WAS NOT HAND-WRITTEN.
IT WAS A LENGTHY TYPE-WRITTEN
STATEMENT BUT IT -- MY
RECOGNIZE OF THAT STATEMENT IS
IT WAS ALL ABOUT SHE NEEDED
MORE TIME AND SHE WASN'T
CONTINUING BECAUSE SHE WAS
STILL INVESTIGATING NOT THAT
THERE WAS ANYTHING IN THERE
THAT COULD BE TESTIFIED ABOUT
WHICH IS WHY THE STATE ASKED
FOR AFFIDAVIT FROM THE EXPERT
SAYING WHAT IS IT YOU HAVE DONE,
WHAT IS IT YOU HAVE REVIEWED,
WHAT IS IT YOUR PRELIMINARY
OPINION, AND WE GOT BACK, I WAS
RETAINED, I HAVE BEEN PAID THIS
MUCH.
AND THAT IS IT.
>> I MEAN, NOT TALK ABOUT
CONTINUED NUNS OF THE
EVIDENTIARY HEARING.
>> YES.
>> BECAUSE, WE ARE -- SO WE ARE
CLEAR, THERE ARE TWO ISSUES
ABOUT CONTINUANCES, ONE IS THE
UNDERLYING TRIAL LAWYER WHOSE
FATHER HAD DIED AND WHOSE
MOTHER WAS IN TERRIBLE STATE
AND WHETHER THERE SHOULD HAVE
BEEN A CONTINUANCE ON THAT AND
THAT, I THINK YOU HAVE
CLARIFIED.
AS FAR AS THIS SITUATION, MY
CONCERN REALLY HAS TO DO WITH,
THAT WE HAVE THIS UNIQUE
SITUATION OF A JUDGE WHO IS
JUDGE FERRER, HAD TO LEAVE THE
BENCH BY FEBRUARY 28th, 2005,
NOT BECAUSE OF ANYTHING OTHER
THAN HIS OWN PERSONAL PLAN TO
BECOME A TELEVISION JUDGE WHICH
HE NOW IS.
AND FROM THE SUMMARY NATURE OF
THE ORDER, TO THE KINDS OF
COMMENTS HE MADE, MY CONCERN IS
THAT UNLIKE SOME OF THE OTHER
JUDGES THAT WE SEE, WHO, YOU
KNOW, ARE REALLY BENDING OVER
BACKWARDS TO TRY TO MAKE SURE
THAT THE TIME IS ADEQUATE TO
PREPARE, WITHOUT IT GOING ON
FOR YEARS AND YEARS, THAT THIS
JUDGE REALLY WAS NOT GRANTING A
CONTINUANCE BECAUSE OF HIS
OWNER PERSONAL INTERESTS.
AND COULD YOU COMMENT ON THAT.
>> THE JUDGE MADE IT VERY CLEAR
ON THE RECORD THAT THAT WAS
SIMPLY UNTRUE.
HE HELD THE HUFF HEARING ON
THIS CASE, ON NOVEMBER 9th --
>> WHEN WAS THE 3.850 MILD IN
THIS CASE.
>> IT WAS FILED FIVE MONTHS
BEFORE THE HUFF HEARING,
BECAUSE WE TOOK, I HAD TWO
MONTHS TO RESPOND, GIVEN --
>> AND THE TIME THE MOTION IS
FILED, UNTIL THE EVIDENTIARY
HEARING IS HOW LONG.
>> NINE MONTHS, I BELIEVE.
>> AND YOU ARE AN EXPERIENCED
LAWYER IN THESE CASES.
DO YOU KNOW OF ANY OTHER CASE
WHERE THAT KIND OF -- YOU KNOW,
FROM THE TIME OF FILING UNTIL
THE TIME OF THE HEARING IS
UNDER A YEAR?
>> IN FACT THE RULES REQUIRE
IT.
SO, YEAH.
>> UNDER A YEAR FROM THE TIME
OF FILING?
>> FROM THE TIME OF FILING THE
MOTION I HAVE 60 DAYS TO ANSWER
AN INITIAL MOTION, THE HUFF
HEARING MUST BE HELD WITHIN
90DATION, THE EVIDENTIARY
HEARING IS REQUIRED UNDER YOUR
RULE TO BE HELD WITHIN 90 DAYS
AFTER THE HUFF HEARING.
>> I'M ASKING YOU AS A
PRACTICAL MATTER --
>> YES.
>> IS THAT HAPPENING.
>> YES.
>> I GET THAT RULE ROUTINELY,
THANK YOU!
>> GOOD TO HEAR, BECAUSE
CERTAINLY --
>> YOU BREAK THE RULE, I TAKE
YOU SERIOUSLY.
>> THERE IS NOTHING UNUSUAL
ABOUT THE TIME PERIODS.
>> NO, AND WHAT HAPPENS IS SHE
GETS FIVE MONTHS AFTER THE
MOTION IS FILED, TO GET TO THE
HUFF HEARING, WE SHOW UP ON THE
DAY OF THE HUFF HEARING AND SHE
HAS LETTERS FROM EXPERTS, SHE
HAS RETAINED THE DAY BEFORE,
THAT SHE IS SAYING ARE REPORTS,
AND WE ARE LIKE, THOSE ARE NOT
REPORTS, THOSE ARE LETTERS
AGREEING TO BE RETAINED, YOU
NEED EVIDENCE, THE JUDGE ADMITS
THAT THE CLAIM WAS FASCIALLY
PLED AND MOTIONS ARE SUPPOSED
TO BE PROPERLY PLED AND FULLY
INVESTIGATED BEFORE THEY ARE
FILED, YOU DON'T FILE THE
MOTION AND THEN INVESTIGATE IT.
HE, AT THAT POINT, WHEN HE IS
SET DINGDZ --
>> THIS IS, AGAIN, WE KNOW A
REAL LIVE SITUATION, CCR HAD TO
GET OFF THE CASE BECAUSE THEY
HAD SOME PEOPLE LEAVE THE
OFFICE, THEY HAD --
>> PEOPLE LEFT THE OFFICE, AND
THEY CLAIMED A CONFLICT BASED
ON THE FACT THAT ANOTHERTARIAN
HAD RELATIVES WHO WORKED FOR
THE BANK AND UNFORTUNATELY THE
WAY THE STATUTE REGARDING CCR
CONFLICT IS WRITTEN IF THEY
ALLEGE A CONFLICT WE HAVE TO
LET THEM OFF.
AND SO THE JUDGE HAD NO CHOICE
BUT TO LET THEM OFF.
I THOUGHT LETTING THEM OFF -- I
FOUGHT LETTING THEM OFF BUT WE
WERE IN A NO-WIN SITUATION.
>> THIS IS A VERY UNUSUAL
SITUATION, AND IT IS
DISCONCERTING BECAUSE YOU HAVE
SOMETHING WHERE THE RULE DOES
REQUIRE AN EVIDENTIARY HEARING,
SOMETHING -- IF SOMETHING IS
PLED AND ONE ISSUE WAS GRANTED
AND THEN THAT DOESN'T EVEN GET
HEARD, BECAUSE THE --
>> BECAUSE THE DEFENDANT
REFUSED TO GO FORWARD.
>> WELL, BECAUSE THE IDEA BEING
THIS THERE WAS NOT ENOUGH TIME
FOR HER --
>> YOUR HONOR, AT THE TIME WE
WERE SITTING THE EVIDENTIARY
HEARING, AT THE END OF THE HUFF
HEARING, JUDGE FERRER EXTENDED
THE TIME BEYOND THE 90 DAYS.
HE LET HER GO AHEAD, TOLD HER
GET YOUR EXPERT TO -- EXPERTS
VALUE WAITING HIM AND HAVE US
REPORTS BY THE BEGINNING OF
JANUARY, AND INSTEAD WHAT REPORTS
BY THE BEGINNING OF JANUARY.
INSTEAD WHAT HAPPENS IS IN THE
MIDDLE OF DECEMBER, WE COME IN,
WE HAVE THE FIRST MOTION TO STAY
ALL PROCEEDINGS, AND THE JUDGE
SAY, NO, I'LL LIFT THE STAY ON
THE -- ORDER.
WE THEN HAVE A CLAIM THAT
MS. SMITH WAS TOO ILL TO ATTEND
TO THAT, AND HE SAID, WELL, YOU
KNOW, AT THIS POINT YOUR EXPERTS
SHOULD BE DOING THEIR
EVALUATIONS, AND I'LL WORK WITH
YOU AS MUCH AS I CAN, BUT YOUR
EXPERTS SHOULD BE DOING THEIR
EVALUATIONS NOW, SEND THE
EXPERTS, WE'LL HAVE THE REPORTS,
AND WE CAN DEAL WITH THIS LATER.
THE CLAIM AT THAT POINT WAS I
NEED TO SEND THE RECORDS TO THE
EXPERT FIRST.
WHEN WE COME BACK IN JANUARY,
THE EXPERTS STILL HAVEN'T SEEN
THE DEFENDANT, AND WHEN THE
STATE ASKS FOR THE RECORDS,
WE'RE TOLD, WELL, I HAVEN'T SENT
THE RECORDS TO THE EXPERT
BECAUSE I WANTED TO DO THE
EVALUATIONS FIRST.
THIS ALL SHOULD HAVE BEEN DONE
BEFORE THE MOTION WAS FILED TO
BEGIN WITH.
THEN YOU HAVE FIVE MONTHS BEFORE
WE GET TO A HUFF HERING AND YOU
YOU -- HEARING AND YOU DON'T
BOTHER TO HIRE AN EXPERT UNTIL
THE DAY BEFORE THE HOWG HEARING.
AND THEN YOU GET ALMOST FOUR
MONTHS AND YOU WAIT UNTIL YOUR
EXPERT REPORTS ARE DUE AND EVEN
LATER TO SEND ANYBODY TO
TRINIDAD THAT YOU KNOW ARE
MISSING.
UNDER THAT CIRCUMSTANCE, WHEN
THE JUDGE IS CONFRONTED WITH
SOMEONE WHO'S PLAIN NOT DOING
THEIR JOB --
>> SINCE, OF COURSE, WE DON'T
HAVE INEFFECTIVE ASSISTANCE OF
POST CONVICTION BUT WE DO HAVE
SOME MATTERS OF FUNDAMENTAL
FAIRNESS, WOULDCOULD YOU TELL ME,
JUST REFRESH MY REX AS FAR AS
WHAT TYPE OF MENTAL EVALUATION
WAS DONE FOR MR. DOORVILLE AT
THE TRIAL AND WHAT WAS PUT ON AS
FAR AS TESTIMONY IN TERMS OF
MENTAL MITIGATION AT THE PENALTY
PHASE.
>> I THAT DID NOT -- THEY DID
NOT PUT ON MENTAL MITIGATION AT
THE PENALTY PHASE.
THEY HAD DOCTORS APPOINT TODAY
EVALUATE THE DEFENDANT.
THE REPORT CAME BACK, WE DON'T
HAVE THE REPORT BECAUSE IT WAS
CONFIDENTIAL BECAUSE THEY NEVER
PUT THEM ON, BUT WHEN THEY WERE
ASKING FOR MORE FEES FOR DOCTOR
BERLIN, THEY SAID HE HAD ALREADY
DONE HIS TESTING.
SHOWS HIS IQ IS 100, WE HAVE
SCHOOL RECORDS THAT SHOW, YOU
KNOW, HE WAS A VERY DISRUPTIVE
PERSON.
>> YOU COULDN'T GET THOSE
REPORTS AT THE TIME OF TRIAL,
BUT IN PREPARATION FOR AN
EVIDENTIARY HEARING, WOULDN'T
YOU NOW HAVE BEEN ABLE TO GET
THE REPORTS?
>> I DON'T BELIEVE HE WROTE A
REPORT.
BUT, YOU KNOW --
>> AGAIN, WE DON'T KNOW THAT.
>> WE DON'T KNOW, WE DO KNOW HE
WAS EVALUATED.
WE DO KNOW THAT THE DOCTOR HAD
DONE ALL THE TESTING THAT HE
FELT NECESSARY, AND WE DO KNOW
THAT THEY THEN DIDN'T CHOOSE TO
PRESENT ANY EVIDENCE, CHOSE TO
PRESENT A MITIGATION CASE BASED
ON THE FACT THAT THIS DEFENDANT
HAD A POOR CHILDHOOD, WAS BORN
TO A MOTHER WHO WAS RAPED BY AN
OLDER MAN, WHO WAS ABUSED BY THE
MOTHER AND RAISED BY THE
GRANDMOTHER AND HAD TO BE SENT
AWAY FROM THE HOME BECAUSE THE
MOTHER WAS SO ABUSIVE TO HIM,
AND THAT HE WAS A WONDERFUL GUY
WHEN HE CAME TO THE U.S.
EVEN THOUGH HE WAS USING STEROID
HE WAS ALWAYS A NICE GUY UNTIL
HE FELL UNDER -- INFLUENCE.
WE DO KNOW THEY PRESENTED MENTAL
HEALTH MITIGATION BUT -- SHE HAD
EVERY OPPORTUNITY IN THE WORLD
TO GET THIS TOGETHER AND PRESENT
THE EVIDENCE AT AN EVIDENTIARY
HEARING, AND WHEN THE JUDGE WAS
CON CONFRONTED WITH SOMEONE WHO
REFUSE TODAY GO FORWARD, THAT'S
A WAIVER OF THE CLAIM.
THE DEFENDANT WAS BROUGHT IN AND
COLLOQUYED ABOUT HIS
UNDERSTANDING, AND HE AGREED TO
DO THIS.
>> MS. SMITH MENTIONED AT THE
BEGINNING OF HOW POOR PEOPLE IN
THIS COUNTRY GET JUSTICE.
WAS HE RETAINED AS COUNSEL?
>> ORIGINALLY, YES.
HE WAS ORIGINALLY RETAINED WHEN
IT WAS JUST THE SHILLER COUNT.
WHEN IT BECAME THE MURDER COUNT,
HE ASKED TO BE DECLARED INDIGENT
AND APPOINTED -- THE STATE ASKED
THAT BECAUSE THERE WERE THESE
ASSETS IN THE DEFENDANT'S NAME,
HE EXPLAINED WHY HE COULDN'T USE
THESE ASSETS, HE REFUSED TO DO
SO USING HIS FIFTH AMENDMENT
PRIVILEGE.
THE JUDGE ORIGINALLY REFUSE
TODAY APPOINT MR. THAT TALLY AND
THEN HE SAID HE WOULD WRAW
UNLESS APPOINTED.
>> WAS THERE ALSO COCOUNSEL?
>> HE HAD CO-COUNSEL, HE GOT TWO
DIFFERENT MENTAL HEALTH EXPERTS.
>> IS THERE ANYTHING IN THE
RECORD ABOUT HIM BEING AN
EXTREMELY EXPERIENCED DEFENSE
ATTORNEY?
>> I DON'T RECALL, YOUR HONOR.
>> THE ALLEGED LYING IS THAT
MR. SHILLER DENIED MEDICAID
FRAUD.
THAT WAS BROUGHT UP IN THE
MOTION FOR NEW TRIAL HEARING.
IT COULD HAVE AND SHOULD HAVE
BEEN RAISED ON DIRECT APPEAL.
AND THE FACT THAT SOMEBODY AT
THE TIME OF TRIAL, HE HAS NOT
BEEN CHARGED.
HE HAS NOT BEEN CONVICTED.
HE'S ONLY CHARGED AFTER THE
SPENCER HEARING.
AND WHILE THE STATE MAY BELIEVE
PEOPLE ARE GUILTY, THE PEOPLE
CAN'T KNOW PEOPLE ARE GUILTY
UNTIL THEY'RE ACTUALLY
CONVICTED.
WE ALSO PRESENTED, WE HAD
SHILLER TESTIFY I DIDN'T WANT
COMMIT MEDICAID FRAUD, AND
WHETHER HE DID OR NOT IS
UNIMPORTANT TO THIS CASE.
NO MATTER WHAT YOU DO NOT KIDNAP
PEOPLE, TORTURE THEM FOR FOUR
WEEK, RUN THEM OVER TWICE WITH A
CAR, TRY TO SET THEM ON FIRE.
YOU DON'T DO THAT.
AND SO THE FACT THAT THERE WAS
MEDICAID FRAUD, NUMBER ONE, WAS
KNOWN.
IT WAS KNOWN FROM THE PRETRIAL
HEARINGS FORWARD.
THERE WAS ALL THIS DISCUSSION
ABOUT HOW EVERYBODY KNEW HE WAS
GOING TO BE TRIED.
AND THE FACT THAT YOU KNEW HIS
TESTIMONY WAS CONTRARY TO WHAT
YOU THINK IT SHOULD BE IS
GROUNDS TO DENY A GIG LEO
CROSS-CLAIM UNDER RATLY.
THE STATE HAD NO WAY OF KNOWING,
IN FACT, HE WAS LYING.
WE KNEW THERE WAS DELGADO'S
EVERY DAY THAT SUGGESTED HE WAS
LYING, BUT IF YOU ASK HIM IF
HE'S GUILTY OF A CRIME, IT'S NOT
OUR OPINION THAT MATTERS.
>> WAS THAT EVIDENCE PUT ON?
>> YEAH, WE WERE ALL DOING
MEDICAID FRAUD, AND SHILLER
SAID, NO, WE WEREN'T.
THE STATE SAID TO THE JURY, YOU
PICK.
WE DON'T CARE.
YOU JUST DON'T DO THIS WHETHER
YOU'RE A CRIMINAL OR NOT A
CRIMINAL.
>> WAS THAT THE STATE'S ARGUMENT
IN CLOSING?
>> YES.
>> THE TRIAL JUDGE VIEWS HIS --
THAT'S REALLY NOT MATERIAL TO
THE MURDER AND THE KIDNAPPING
AND THOSE KINDS OF THINGS.
>> AND IT IS.
>> FOR A CLAIM, HOWEVER F YOU'VE
GOT A CASE LIKE THIS, IT APPEAR
IT IS EVIDENCE WAS DELGADO
BOUGHT IT AND THEN THERE'S BAD
BLOOD AND WHATEVER.
IF YOU HAVE THAT KIND OF
SITUATION, DO YOU NEVER HAVE AN
OPPORTUNITY OR A CIRCUMSTANCE
ARISE IF ONE JUST MOORELY SAY,
NO, I DIDN'T DO THIS?
DOES THAT TAKE THIS RIGHT OUT
OF --
>> WELL, TO ME, YOUR HONOR, IT
WOULD DEPEND ON WHAT IT IS
THEY'RE CLAIMING THEY DIDN'T DO.
HE WAS CLAIMING HE DIDN'T
DEFRAUD THE FEDERAL GOVERNMENT,
THAT'S A CRIME.
AND THE STATE CAN'T KNOW, THE
STATE ANY TIME IT PUTS ON A CASE
BELIEVES A DEFENDANT IS GUILTY,
WE WOULDN'T DO IT OTHER SIDE.
WE BELIEVE WE HAVE THE EVIDENCE
TO DO THAT.
SO IF IT WERE A QUESTION OF DID
THIS CHECK GET EXCHANGED OR
DIDN'T THIS CHECK GET EXCHANGED,
AND WE HAVE THE CHECK WITH THE
FINGERPRINTS, THEN PERHAPS WE
SHOULD PRESENT THAT.
>> A STATE PROSECUTION, RATHER
THAN A FEDERAL PROSECUTION,
WOULD THAT MAKE A DIFFERENCE AS
WELL?
THE CRIME, I'M JUST SAYING, THE
CRIME.
IS IT A DIFFERENCE BECAUSE IT'S
A FEDERAL CRIME AND THE STATE'S
NOT INVOLVE INSIDE MAKING THOSE
ALLEGATIONS?
>> WELL, IT'S A DIFFERENCE IF
THE STATE IS INVOLVED.
THE REASON WE LET PEOPLE
QUESTION PEOPLE ABOUT PENDING
PROSECUTIONS IS THERE'S A MOTIVE
TO CURRY FAVOR WITH THE STATE.
AND AND WE'RE NOT EVEN THE
PEOPLE PROSECUTING, IT'S A
LITTLE HARD TO CLAIM YOU'RE
CURRYING FAVOR WITH US.
>> WITH OUR HELP, YOU'VE USED UP
ALL YOUR TIME.
MS. SMITH, I WANT TO GIVE YOU A
COUPLE OF MINUTES TO RESPOND.
>> THANK YOU, CHIEF JUSTICE.
I'VE NOTED PAGE 687 I BELIEVE
IT'S A SUPPLEMENTAL.
MAYBE ACTUALLY IN THE ACTUAL
INITIAL RECORD ON APPEAL, IT'S
THE TWO-PAGE STATEMENT THAT
WE'VE REFER TODAY IN THE COURT
WHERE I TALKED ABOUT WHO THE
EXPERTS WERE THAT WE WERE GOING
TO CALL, DR. POPE OUT OF HARVARD
UNIVERSITY, WENT BACK TO MY ALMA
MATTER AND FOUND DR. POPE WHO
WAS AN EXPERT IN STEROIDS.
IT WAS ONLY ONLY POST
CONVICTION -- WE GOT THE
TESTIMONY ON STEROIDS TO PROVIDE
THE KIND OF MITIGATION THAT
SHOULD HAVE BEEN PRESENTED
DURING THE TRIAL.
THERE ARE A NUMBER OF OTHER
EXPERTS, ONE OF THE WITNESSES --
>> THIS TELLS WHAT THEY'RE GOING
TO SAY, AND THIS IS AT 687?
>> YES, SIR.
WHAT THEY WERE LOOKING AT WAS,
YOU KNOW, THE STATE HAS
MISSTATED SOMEWHAT THE TIMELINE
OF EVENT THAT IS OCCURRED.
WE DIDN'T RETAIN THESE EXPERTS
THE DAY BEFORE THE HEARING.
THE DAY BEFORE THE H AUTOMOBILE
OUG WHEN I
KNEW THEY WEREN'T READY TO
PROVIDE ME WITH SIGNIFICANT
INFORMATION, I HAD THEM WRITE ME
A LETTER SAYING THEY HAD BEEN
RETAINED, AND I NEED TODAY TELL
COURT WHY I DIDN'T HAVE ALL OF
THE SPECIFIC INFORMATION I KNEW
THE COURT WAS GOING TO BE
LOOKING FOR.
AND THEN IN JANUARY, IT WAS OVER
THE HOLIDAYS, NOBODY WENT TO
TRINIDAD UNTIL RIGHT AFTER THE
FIRST OF THE YEAR, AND THAT'S
WHERE --
>> IS THERE A REASON THOSE
RECORDS WEREN'T SECURED BACK
BEFORE THE FILING OF THE MOTION
IN JUNE OR SHORTLY AFTER JUNE
2004?
>> YOUR HONOR, PICTURE THIS --
>> I DON'T WANT TO USE UP ALL
YOUR TIME.
>> NO, NO, NO, I JUST WANT YOU
TO PICTURE THIS, YOU'VE GOT A
MONTH TO -- IN THE MODERN WORLD
YOU'VE GOT A YEAR TO PUT IT
TOGETHER WHERE YOU WOULD HAVE
GONE TO TRINIDAD, WHERE YOU
WOULD HAVE GONE TO HIRE PEOPLE.
THE RECORD WAS SO BIG, IT WAS
177 VOLUMES.
TO SIGN THAT PETITION, I HAD TO
SWEAR, AND I DID, I SWEARED THAT
I READ ALL THOSE --
>> AGAIN, I JUST REALLY WANT
TODAY KNOW IS THERE A REASON --
>> WE DIDN'T HAVE TIME.
THERE WASN'T TIME ENOUGH.
YOU KNOW, I'M NOT A WHINER.
I'M TRYING TO TELL YOU THIS IS A
CASE, THIS IS A HUGE CASE.
AN UNUSUAL CASE WHERE CCR WAS
ALLOW TODAY WITHDRAW FLEE MONTHS
BEFORE THE -- THREE MONTHS
BEFORE THE PETITION WAS DUE.
AS A LAWYER I DIDN'T WANT TO DO
QUITE YET.
SO WE DID WHAT WE COULD, WE
ASKED FOR SOME TIME.
I NEVER ONCE DIDN'T COME TO A
HEARING BECAUSE I WAS ILL.
I'M 52 YEARS OLD, I WAS NEVER
SICK IN MY LIFE UNTIL A YEAR AND
A HALF AGO.
I WAS EXHAUSTED, I'M EXHAUSTED
NOW, BUT I NEVER ONCE DIDN'T GO
TO A HEARING OR COMPLAINED ABOUT
GOING A HEARING EXCEPT THE
TELEPHONIC HEARING TO TRY AND
GET A JUDGE TO PAY ME A FEE.
BUT WHAT I DID DO WAS I
SEPTEMBER MY INVESTIGATORS, THE
COURT WAS FIRM ABOUT HAVING THIS
HEARING BEFORE HE LEFT THE
BENCH.
HE SAID, ON THE RECORD, I DON'T
WANT TO LEAVE THIS CASE FOR
ANOTHER JUDGE.
HE'S GOT OTHER CASES HE'S HAVING
TO LEAVE TO OTHER JUDGES WHEN HE
LEAVES.
WE WERE SO BLINDSIDED BY THE
FACT THAT HE WASN'T GOIR GOING
TO BE THERE FOR THE TIME PERIOD
THAT WE HAD AN EXTRAORDINARY
CASE, WE NEEDED EXTRAORDINARY
TIME, AND THAT WAS DENIED US.
THANK YOU FOR YOUR TIME, YOUR
HONOR.
>> WE THANK YOU BOTH, WE'LL TAKE
THE CASE UNDER ADVISEMENT.
THE COURT WILL TAKE ITS MORNING
RECESS.
>> PLEASE RISE.