In re: Amendments to the Florida Small Claims Rules

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Michael A. Tanzi v. State of Florida

SC05-457

> LADIES AND GENTLEMEN, THE
FLORIDA SUPREME COURT.
PLEASE BE SEATED.
>> THE FINAL CASE ON OUR
DOCKET THIS MORNING AND FOR
THIS WEEK IS TANZI VERSES
THE STATE OF FLORIDA.
>> GOOD MORNING MAY IT
PLEASE THE COURT, IF UNDER
RULE 3.1070 THERE'S MORE
LENIENT STANDARD THAT FAVORS
THE DEFENDANT THEN WHETHER
THERE'S EVIDENCE OF CAPITAL
DEFENDANT WAS CONFUSED ABOUT
THE MEANING OF HIS PLEA THEN
GOOD CAUSE IS SHOWN.
AND THAT IS WHAT THE
EVIDENCE SHOWED IN THIS CASE.
MICHAEL TANZI HOURS AFTER
ENTERING HIS PLEA AND WEEKS
BEFORE THE COMMENCEMENT OF
THE PENALTY PHASE JURY
SELECTION IN THIS CASE
EXPRESSED CONFUSION ABOUT
HIS UNDERSTANDING OF THE
JURY LABOR IN THIS CASE
SAYING TO THE COURT IT'S
CONFUSING TO ME.
I'M NOT SAYING I DON'T
UNDERSTAND IT AND THE
CONTEXT OF WHEN HE WAS
MAKING THE PER SE ATTEMPT TO
WITHDRAW HIS PLEA, IT'S
CONFUSING TO ME.
I'M NOT SAYING I DON'T
UNDERSTAND.
BECAUSE SOMETIMES I DO AND
SOMETIMES DO STPHEPBT I
DON'T UNDERSTAND.
I DON'T KNOW.
>> THE TYPE WORD PICTURE
HERE OF THE TIME FRAMES
INVOLVED.
YOU SAY WITHIN HOURS.
GIVE US REALLY THE TIME
FRAME AND WHAT WENT ON
DURING THE COURSE OF THAT
TIME FRAME AND ESPECIALLY
EMPHASIZING WHAT HE WAS OR
WASN'T TOLD WITH REFERENCE
TO THE WAIVER OF THE PENALTY
PHASE JURY.
SO WOULD YOU -- .
>> WOULD VERY MUCH LIKE
TO --
>> DETAIL THAT A LITTLE BIT.
SOME TIMES ARE MORE VAGUE
THAN OTHERS.
WE HAVE A SITUATION WHERE
THIS IDEA OF ENTERING A
GUILT PLEA AND GETTING A
JURY WAIVER WAS UNDER
DISCUSSION FOR A PERIOD OF
AT LEAST TWO MONTHS.
WE KNOW THIS FROM THE NOTES
OF BILL KUYPERS ONE OF THE
DEFENSE ATTORNEYS HIS
TESTIMONY AT THE SENTENCE ON
THE PRESENTENCE MOTION.
AND HE DISCUSSED WITH
MICHAEL AS APPARENTLY DID
COCOUNSEL THE PLAN THAT IT
WOULD BE IN MICHAEL'S
INTEREST TO GET A JURY
WAIVER IN THE PENALTY PHASE.
HIS ATTORNEYS FELT THAT WAS
HIS BEST CHANCE OF A LIGHT
SENTENCE.
MICHAEL BELIEVED HIM.
SO HE DISCUSSED THIS FOR
ABOUT TWO MONTHS.
HOWEVER, THEY DIDN'T
RESEARCH THE LAW IN THIS
POINT UNTIL THE EVE OF
TRIAL.
THE NOTES INDICATE ON THE
29th OF JANUARY, 2003, HIS
PLEA WAS ENTERED ON THE 31st
OF JANUARY 2003.
MR. KUYPERS DID THE RESEARCH
ON THIS.
ON THE 30th HE HAS A MEETING
WITH MICHAEL TANZI AND
MR. TANZI ULTIMATELY AGREES
THAT HE IS GOING TO ENTER
THE PLEA.
ON THE 31st IN THE MORNING
BEFORE COURT STARTS AND I
BELIEVE THAT THE CLERK'S
DOCKET INDICATE -- OR AT
LEAST THE TRANSCRIPT
INDICATES THE COURT OPENED
SOMETIME AROUND 11:20 OR
11:30.
SOMETIME PRIOR TO THE COURT
BEGINNING MICHAEL TANZI AND
MR. KUYPERS MEET IN THE JURY
ROOM IN THE COURTHOUSE.
ALSO PRESENT THE MR. MADRUA
ONE OF THE PROSECUTORS.
MR. KUYPERS PRESENTS MICHAEL
TANZI WITH SOME DOCUMENTS TO
SIGN.
ONE OF THE DOCUMENTS IS A
STANDARD PLEA FORM USED IN
ANY CASE.
ANOTHER IS A SPECIAL PLEA
FORM FOR THIS CASE.
THE AFFIDAVIT AS ITS
REFERRED TO IN THE RECORD.
THIS AFFIDAVIT GOES THROUGH
THE SPECIAL CONDITIONS OF
THE PLEA IN THIS CASE AND
IT'S A VERY CAREFUL DOCUMENT
IN A LOT OF WAYS.
IT TALKS ABOUT THE FACT THAT
MICHAEL WISH TO CHANGE HIS
PLEA OF GUILT.
IT REFERENCES THE FACT THAT
HE WANTED TO WAIVE HIS JURY,
THAT HE IS CHOOSING --
>> WAIVE HIS JURY IN THE
PENALTY PHASE?
>> IN THE PENALTY PHASE.
>> WHO PREPARED THAT
DOCUMENT?
>> MR. KUYPERS.
>> THE PROSECUTOR?
>> NO HE'S THE DEFENSE
COUNSEL.
>> HEED PREPARED IT AND HAD
MILE SIGN IT.
IF YOU READ THAT DOCUMENT.
I RETURN THE COURT TO READ
THAT DOCUMENT CAREFULLY.
IT'S IN THE RECORD.
AND IT'S EXCERPTED IN MY
BRIEF.
BECAUSE THE EFFECT OF THE
DOCUMENT ON
ARRAIGNMENT -- ON MANY
EMPLOYERS IS TO CONVEY AN
IDEA THAT THERE ARE NO
CAVEATS ABOUT THE JURY
WAIVER.
IT SAID MICHAEL TANZI WISHES
TO CHANGE HIS PLEA TO NOT
GUILTY TO GUILT IN HIS BEST
INTEREST.
IN THE COURT ACCEPTS HIS
PLEA, IT RAISES DOUBT AS TO
WHETHER OR NOT THE COURT
WILL ACCEPT THE CHANGE OF
PLEA BUT NEVER SAYS ANYTHING
ABOUT THERE BEING DOUBT
ABOUT THE COURT ACCEPTING
THAT, THAT HE HAD A RIGHT IN
THE PENALTY PHASE JURY
DOESN'T AND HIS -- IT SAID
HE'S CHOOSING.
HE ALSO GOES ON IN DETAIL TO
GO OVER SOME FAIRLY
TECHNICAL STUFF IF HE DOES
BY DOING THIS HE IS WAIVES
HIS RIGHT.
THERE'S A GREAT DEAL OF CARE
BEING TAKEN TO MAKE SURE
THAT MICHAEL TANZI KNOWS --
>> SO GIVEN THE WORDING OF
THE AFFIDAVIT WHAT IS THE
REMEDY HERE?
YOU'RE ASKING TO WITHDRAW
THE PLEA BUT ISN'T CERTAINLY
AN ALTERNATIVE REMEDY A
PENALTY PHASE JURIY?
>> HE HAD A PENALTY PHASE
JURY.
>> RIGHT.
I'M AFRAID WE CAN'T GET THAT
JEANIE BACK IN THE BOTTLE.
THERE'S ALREADY A PENALTY
PHASE RECOMMENDATION.
>> YOU ARE NOT RAISING ON
APPEAL THAT THE JUDGE ABUSED
DISCRETION IN NOT GRANTING
THE WAIVER OF THE PENALTY
PHASE JURY.
>> NO.
>> BECAUSE WE HAVE CASE LAW
THAT SAYS --
>> IT'S CLEAR -- CLEAR THE
JUDGE HAD THAT OPTION.
BUT UNFORTUNATELY THE RECORD
IS SUCH THAT IT'S CLEAR
THERE WAS SOME CONFUSION
THAT IN MICHAEL'S MIND AS TO
WHETHER OR NOT HE WAS
GETTING THE --
>> NOW, LET'S GO OVER AND I
WILL ASK THE STATE THIS
QUESTION.
MY CONCERN IS -- AS I LOOK
AT HILL VERSUS LOCKNER THAT
WE'RE ABOUT TO GRANT RELIEF
IN THIS CASE IN A
POST-CONVICTION ARGUMENT
THAT HIS COUNSEL WAS
INEFFECTIVE AND I KNOW YOU
WILL MAKE THAT
ARGUMENT -- OR SOMEBODY
WILL.
>> SOMEBODY MAY.
>> IF WE DON'T REALDY IT
HERE.
YOU WERE GIVING THIS SORT OF
WORD PICTURE SO THEY FIND
OUT, THOUGH, AT LEAST THE
NIGHT BEFORE THE PLEA THAT
IT'S NOT AN AUTOMATIC WAIVER
OF THE PENALTY PHASE.
SO WHAT IS THE -- IN THIS
RECORD, THE TESTIMONY THEN
OF COUNSEL AS TO WHETHER
THEY THEN ADVISED HIM THAT
IT ISN'T AUTOMATIC OR
WHETHER IT OVERRODE THAT
DOCUMENT THAT SEEMS TO
COMPLY THAT IT WAS.
THE TESTIMONY OF MR. KUYPERS
IS THAT HE GAVE MICHAEL
ACCURATE ADVICE ON THIS
QUESTION.
AND IT'S NOT CLEAR WHAT THE
ADVICE WAS PRIOR TO THAT.
HE DID ON THE NIGHT IN
QUESTION GIVE HIM THE
ACCURATE ADVICE THAT THIS
WAS IN THE DISCRETION OF THE
COURT.
HE ALSO SAYS THAT HE DID NOT
GIVE MICHAEL ANY PROBABILITY
AS TO WHAT THE COURT WOULD
DO.
DID THE TRIAL JUDGE THEN
MAKE -- BY NOT WITHDRAWING
THE PLEA, DID THE TRIAL
COURT MAKE FINDINGS OF THE
CREDIBILITY, THEN OF THE
MR. TANZI'S REASON FOR
WANTING TO WITHDRAW THE PLEA
AND THEN THE CREDIBILITY OF
THE LAWYER AND THAT THE
LAWYER DID GIVE ACCURATE
ADVICE?
>> THE TRIAL COURT'S ORDER
CAN FAIRLY BE SAID TO MAKE
CREDIBILITY.
THE PROBLEM IS I DON'T THINK
THEY ARE ENTITLED TO
DEFERENCE BY THIS COURT FOR
THREE REASONS.
ONE IS THAT THE CREDIBILITY
FINDING SUCH AS THEY ARE ARE
BASED ON INCORRECT STATEMENT
OF THE RECORD WHICH I POINT
OUT TO THE COURT.
A MOMENT.
TWO, IT IGNORES CRITICAL
EVIDENCE THAT WAS ALSO
AVAILABLE IN THE RECORD.
AND THREE IT'S NOT APPLYING
THE CORRECT STANDARD TO
THAT.
>> TAKE THE -- TO SAY THAT
THERE WAS THE NIGHT BEFORE
THE PLEA, THERE WAS THIS
SOMETHING IN THE RECORD
ABOUT SOMETHING THAT
HAPPENED BETWEEN THE
DEFENDANT AND THE
DEFENDANT'S COUNSEL.
BUT THEN THEY WENT BEFORE
THE JUDGE IN NEXT DAY;
RIGHT?
>> THAT'S RIGHT.
>> WHAT HAPPENED THERE?
>> WELL, WHEN THEY GET TO
THE JUDGE -- AFTER THEY HAD
THE CONVERSATION OR WHATEVER
TRANSPIRED THERE, ONE OF THE
THINGS THAT HE SAID HE MAY
HAVE DONE IS GIVEN HIM
REASONS WHY THE JUDGE MAY DO
ONE THING OR ANOTHER.
THE AFFIDAVIT SAYS THAT THEY
FELT THAT THE JUDGE WAS
LIKELY TO GRANT THE WAIVER
BECAUSE WHAT THEY KNEW ABOUT
THE JUDGE.
BUT THEN THEY PRESENTED HIM
WITH THIS AFFIDAVIT.
THERE'S NO INDICATION THAT
THE JUDGE MIGHT NOT.
THEN HE GOES TO THE JUDGE.
HERE'S THE PROBLEM.
THE JUDGE DOESN'T KNOW THAT
THE WAIVER IS ISSUED AT ALL.
AND HE HAS NO REASON TO DO A
COLLOQUY AT THIS POINT.
MICHAEL TESTIFIED IN POST
TRIAL EVIDENTIARY HEARING
THAT THE LAWYERS TOLD HIM,
LOOK, WE'RE GOING TO DEAL
WITH THE WAIVER AFTER THE
PLEA.
DON'T SAY ANYTHING ABOUT THE
JURY WAIVER UNTIL THEN.
THAT'S NOT SKEWED.
I DIDN'T TELL
HIM -- TRUTHFUL I DIDN'T
TELL HIM TO LIE --
>> BUT WHAT DOES THE RECORD
REFLECT HAPPENED?
AT THE TIME OF THE PLEA?
>> THE JUDGE GOES THROUGH
COLLOQUY AND IS VERY CAREFUL
ABOUT THINGS NOBODY TOLD YOU
YOU WILL GET LENIENCE OUT OF
THIS.
THE ONLY THING SAID ABOUT
THE JUROR WAIVER IS THAT
AFTER THIS THERE WILL BE A
PENALTY PHASE AND WE WILL
HANDLE THE JURY.
>> BUT IF WE SEPARATE IT THE
JURY WAIVER AND THE PENALTY
PHASE PART OF IT FROM WHAT
THE JUDGE ASKED THE
DEFENDANT IN THE PRESENCE OF
THE DEFENDANT'S COUNSEL AT
THE TIME OF ACCEPTING THE
PLEA OF GUILT ON THE
CONVICTION, DID HE
ACKNOWLEDGE THAT HE HE WAS
GUILT AND GO THROUGH THAT
WHOLE ROUTINE?
>> OH, ASSUREDLY HE ENTERED
A GUILT PLEA.
IT WAS IN OUR CLIENT BEST
INTEREST GUILT PLEA.
HE WENT THROUGH THE ROUTINE
BUT THE THING WAS THAT IT
WAS DONE ON A PHGS
APPREHENSION THAT OUT OF
THIS -- MISAPPREHENSION THAT
OUT OF THIS HE WOULD BE ABLE
TO WAIVE THE JURY SOMETHING
WHICH HE WOULD NOT BE ABLE
TO DO.
THERE'S NO STATEMENT MADE
DURING THE COLLOQUY ABOUT
THAT.
>> NO.
>> OF COURSE THEY --
>> WELL THE DEFENDANT DIDN'T
MAKE A STATEMENT ABOUT THIS;
CORRECT?
>> HE DID NOT.
AND HE WAS INSTRUCTED NOT TO
BY HIS COUNSEL.
>> ON THIS THING BECAUSE IT
IS IMPORTANT TO ME THAT HE
TRY TO WITHDRAW HIS PLEA
BEFORE THE JUDGE -- BEFORE
THE PENALTY PHASE JURY.
SO HE -- WHAT IS -- HOW DOES
THE GOOD CAUTION
JURISPRUDENCE APPLY IN THIS
CASE.
IN OTHER WORDS IF -- DO WE
HAVE TO FIRST MAKE A
CREDIBILITY DETERMINATION
ABOUT WHETHER HE TRULY WAS
CONFUSED ABOUT THE PLEA,
WHERE DOES THAT FALL INTO
THE SPECTRUM OF THE
ANALYSIS?
>> WELL, YOUR HONOR, I HAVE
TO SAY THAT THE GOOD CAUSE
JURISPRUDENCE HAS NOT REALLY
ADDRESSED I THINK THE
STANDARD.
>> WELL, IF THE RULE OF LAW
WAS IF A DEFENDANT IS
CONFUSED ABOUT THE EFFECT OF
HIS GUILT PLEA AND WHETHER
HE'S ALSO IN A CAPITAL CASE
GOING TO BE ABLE TO WAIVE
HIS PENALTY PHASE JURY, SAY
THAT'S THE RULE OF LAW THAT
WE ALREADY CAME OUT WITH.
THAT'S GOOD CAUSE.
BUT THE RECORD HERE IS NOT
CLEAR THAT, THAT -- THAT, IN
FACT -- YOU ARE SAYING HE
WAS CONFUSED ABOUT IT BUT
THE JUDGE APPARENTLY
REJECTED THAT AND IN
REJECTING THE WITHDRAWAL.
SO HOW DOES THAT -- THOSE
TWO PLAY TOGETHER?
>> I WOULD SAY IN THE FIRST
INSTANCE THAT IF THE RECORD
WAS CLEAR AND THIS IS WHERE
I FIND THE WRONG STANDARD.
IF THE RECORD WAS CLEAR THAT
BEYOND A DOUBT THAT MICHAEL
WOULD BE -- REGARDING THE
PENALTY PHASE WAIVER THEN
MANIFEST JUSTICE WOULD BE
ESTABLISHED.
IF HE ENTERED -- IF WE
PARADED THE LAWYERS AND
EVERYONE SAID YOU KNOW WHAT,
I GUESS WE MISLED HIM AND
MADE HIM THINK THE JUDGE
WOULD GIVE HIM THIS WAIVER,
END OF STORY.
THAT WOULDN'T MANIFEST
JUSTICE.
THAT WOULD BE COSTELLO.
>> IN THE STANDARD OF GOOD
CAUSE REALLY MEANS
SOMETHING.
IF THERE IS A MORE LIBERAL
STANDARD FOR A MOTION THAT'S
MADE PRESENTENCE, THEN I
THINK IT HAS TO MEAN THAT
YOU DON'T NEED TO REACH THAT
MANIFESTING JUSTICE.
I THINK WHEN YOU HAVE A
RECORD AS REPLETE WITH
EVIDENCE OF INFUSION AS THIS
ONE, I THINK YOU'VE MET GOOD
CAUSE.
HAVE WE OR OTHER COURTS
DEFINED GOOD CAUSE?
I THERE -- I THINK THERE ARE
CASES THAT SAY WHILE I
DOESN'T REACH THE LEVEL OF
MANIFEST AND JUSTICE, GOOD
CAUSE IS A HIGHER STANDARD
THAN CAUSE.
>> THE COURT IS -- I THINK
IS RIGHT THERE.
THE COURT DID NOT
SPECIFICALLY CLAIM GOOD
WHERE GOOD CAUSE LAWS EXCEPT
FOR REFERENCE OF WHAT IT IS
NOT.
>> AS OTHER COURTS SAID --
>> I THINK IT WOULD PROBABLY
HAVE TO BE MORE THAN CAUSE.
BUT I WHAT THE COURT HAS
SAID IS IT IS A LIBERAL
STANDARD TO BE APPLIED IN
FAVOR OF THE DEFENDANT FOR
THE TRIAL AND THE MERITS.
I'M HAVING A LITTLE BIT OF
DIFFICULTY WITH YOUR
ACTUALLY MAKING OUT A CASE
FOR GOOD CAUSE HERE AND IT
IS BOLSTERED BY YOUR
OUTLINE.
AND I APPRECIATE YOUR CANDOR
IN RESPONDING TO MY
QUESTION.
IF I UNDERSTAND YOUR
RESPONSE IT REALLY SAID THAT
THIS WAS ALL DONE VERY
CAREFULLY AND THAT THERE
WERE MUCH ABOUT THIS.
AND THEN THAT ALTHOUGH THOSE
MONTHS WERE ALL DEVOTED TO
THE ISSUE WITH REFERENCE TO
THE LEGALLITIES OR TK WAIVER
OF THE PENALTY PHASE JURY,
THAT AT LEAST A MONTH THEN
BEFORE THE PLEA WAS ENTERED
THERE WAS VERY MUCH OF A
FOCUS ON THAT.
AND THEN THAT THERE WAS THIS
DETAILED DISCUSSION WITH
YOUR CLIENT IN BY THE
TESTIMONY IS THAT HE WAS
ADVISED IN GREAT DETAIL THAT
THE JUDGE DID NOT HAVE TO
WAIVE THE PENALTY PHASE JURY
AS PART OF THIS PLEA THING.
YOU KNOW, THAT DON'T TALK
ABOUT THIS NOW WHEN YOU
ENTER THE PLEA, BECAUSE
WE'LL DEAL WITH THAT
AFTERWARDS IN OUR HOAX THAT
WITH THIS PARTICULAR JUDGE
THAT HE WILL GO IN THAT
DIRECTION.
YOU'VE LAID OUT A SCENARIO
WHERE LAWYERS -- IT APPEARS
COULD NOT HAVE DONE A BETTER
JOB OF INFORMING THEIR
CLIENT OF WHAT WAS GOING ON
AND THEN INCLUDING DRAWING
THE PLEA.
SO HELP ME WITH AFTER ALL OF
THAT AS OPPOSED TO GOING TO
THE JUDGE, FOR INSTANCE, AND
SAYING YOU KNOW THAT WE
REALLY IT LOOKS LIKE THAT MY
CLIENT PROBABLY WILL PLEA,
BUT JUDGE A CRITICAL PART SF
THE WAIVER OF THE PENALTY
PHASE AND, WOULD YOU -- ARE
YOU WILLING YOU KNOW TO GIVE
US YOUR INFORMAL VIEWS ABOUT
THIS BECAUSE THIS IS
OBVIOUSLY A CRITICAL
DECISION FOR, YOU KNOW --
THAT.
HERE THEY LAID THIS OUT AND
WENT FORWARD THE PLEA WITH
THE CLIENT KNOWING THIS IS
SOMETHING THAT THE JUDGE
COULD MAKE THE CALL ABOUT.
SO HELP ME WITH WHEREAS
OPPOSED TO A SITUATION WE
MIGHT SEE WHERE THE LAWYER
GOING INTO THE CHAMBERS OR
WHATEVER TALKS TO HIM AND
SAYS, YOU KNOW, I THINK WE
OUGHT TO CHANGE THE PLEA,
YOU KNOW, AND THEY DIDN'T
HAVE TIME TO ANSWER ALL HIS
QUESTIONS OR YOU KNOW AND
THEREFORE THEY WENT IN AND
HE'S A NERVOUS WRECK AND
SAID WELL I JUST DID WHAT
THE LAWYERS TOLD ME.
THEN HE COMES BACK HOURS
LATER AND SAYS WE NEVER HAD
THE TIME.
>> I'M AFRAID I MISLED THE
COURT IF THAT'S THE
IMPRESSION I'VE GIVEN YOU.
BECAUSE IN FACT WHAT
HAPPENED HERE THEY STARTED
TESTING THE POSSIBILITY OF
ENTERING A PLEA AND GETTING
A JURY WAIVER WHICH IS DONE
APPARENTLY IN A LEGAL
VACUUM.
BECAUSE HE DIDN'T START
DOING THE RESEARCH UNTIL TWO
DAYS BEFORE THE ENTRY OF THE
PLEA.
AND THEN --
>> I UNDERSTOOD YOU TO SAY
THAT IT WAS MONTHS BEFORE --
>> THEY BEGAN TO DISCUSS IT.
THE TESTIMONY -- IN NOVEMBER
THEY BEGAN TO DISCUSS THE
POSSIBILITY.
AND WE HAVE SUBMITTED IN THE
RECORD OF THE EVIDENTIARY
HEARING AND THROUGH THE
TESTIMONY OF MR. KUYPERS,
THE RECORDS THAT HE MADE
SOME CONTEMPORANEOUS NOTES
OF THIS DISCUSSION.
NOTES ABOUT HOW HE WOULD
GIVE UP THE ISSUE THIS AND
THAT.
NEVER NOTATION AS TO WHAT
THE CONSEQUENCES --
>> WHAT WAS LEFT OUT HERE
THAT YOU WERE FOCUSING ON TO
SAY TO SAY THAT HE REALLY
DIDN'T HAVE --
>> A POSSIBILITY THAT HE
WOULDN'T GET THE JURY
WAIVER.
>> MR. KUYPERS TESTIFIED
THAT HE RESEARCHED THAT
QUESTION TWO DAYS BEFORE THE
PLEA.
HE DID HAVE A MEETING WITH
MR. TANZI THE NIGHT BEFORE.
HE SAID THEY TOLD MR. TANZI
WHAT THE LAW WAS AT THAT
MEETING.
THE LAW --
>> THE LAW BEING THAT,
THAT'S A JUDGE'S CALL.
>> I DON'T MEAN TO CONVEY HE
GAVE A VERY CAREFUL
EXPLANATION OF.
MR. KUYPERS SAID HE
EXPLAINED.
HE ADMITTED THAT HE DIDN'T
THINK THAT WOULD HAPPEN.
HE SUPPOSE IT WAS POSSIBLE.
THE ORDER OF THE TRIAL COURT
SAYS THAT MR. KUYPERS -- GET
THE LANGUAGE OF THE ORDER
CORRECTLY -- SAYS THAT HE
NEVER AT ANYTIME DISCUSSED
WITH THE DEFENDANT OR
ENTERED ANY OPINIONS AERS TO
WHETHER THE COURT WOULD
GRANT THE REQUESTED WAIVER
AND TOLD THE DEFENDANT THAT
ANY SUCH OPINION WOULD BE
PURE SPECULATION ON HIS
PART.
THAT NEVER HAPPENED HE NEVER
TESTIFIED TO THAT.
HOW ABOUT GOING TO -- YOU
SAID THERE WERE THREE THINGS
TO UNDERMINE THE JUDGE'S
DECISION HERE.
WOULD YOU DETAIL THOSE
THREE.
>> YEAH.
SO WITH REGARD TO THE FACTS
ONE OF THE FACTS THAT WE
RELY ON IS NONEXISTENT
TESTIMONY OF MR. CUP PERS.
IN FACT, MR. KUYPERS SAID
THAT ESSENTIALLY THEY WOULD
NOT PREDICT WHAT THE COURT
WOULD DO BUT HE MIGHT HAVE
TOLD MR. TANZI REASONS WHY
THE COURT MAY DO ONE THING
OR MAY NOT DO ANOTHER.
THAT'S CONSISTENT WITH THE
AFFIDAVIT OF NANCY ROSSEL
WHICH SAID WE TOLD -- WE
TOLD MICHAEL WE WERE
CONFIDENT THE WAIVER WOULD
BE GRANTED BECAUSE WE KNEW
THE JUDGE.
WE KNEW THAT LEAVES NOT AN
ADVOCATE FOR THE DEATH
PENALTY IN OUR OPINION, THAT
HE WAS --
>> KUYPERS SAID THAT HE TOLD
YOUR CLIENT HE WAS
CONFIDENT.
>> HE SAID HE DENIED SAYING
HE WAS COMPETENT.
WHAT'S INTERESTING.
YOU CAN GET A SPECTRUM OF
UNDERSTANDING -- MR. KUYPERS
SAYING I MIGHT TELL HIM
REASONS WHY HE MIGHT DO ONE
THING OR MIGHT DO ANOTHER
OTHER.
MR. ROSSEL SAYING WE WERE
CONFIDENT --
>> WHERE WAS MISS ROSSEL AT
THIS TIME?
SHE HAD KIND OF BACKED OFF A
LITTLE BIT BECAUSE HE HAD --
>> HER TESTIMONY IS THAT SHE
ATTENDED ONE OF THE MEETINGS!!!!!!!!!!!!!!!!
MEETINGS -- ONE OR TWO OF
THE MEETINGS DISCUSSING THE
REASON WHY --
>> WHERE WAS SHE IN THIS
CRITICAL -- ONE OR TWO DAYS
BEFORE HAND AND IF SHE WAS
NOT THERE AT THE MEETING
RIGHT BEFORE -- ON THE DAY
OF THE 31st; CORRECT?
WITH THE STATE ATTORNEY?
>> ON THE 31st, NO SHE
WASN'T.
THERE WAS NO DISCUSSIONEN
THE 31st.
>> WAS SHE WITH HIM THE
NIGHT BEFORE?
>> IT'S NOT PERFECT I WILL
LEER TO ME.
I DON'T THINK SO.
>> WAS SHE THERE THE DAY
BEFORE?
>> I DON'T SNOWE.
JUSTICE CANTERO HAD A
QUESTION.
ALSO REMEMBER YOU HAVE THE
THREE POINTS YOU WANT TO ADD
AND YOU ARE MOVING THROUGH
YOUR TIME.
>> YES.
AS FAR AS I WAS ASKING ABOUT
THE GOOD CAUSE REQUIREMENT.
CAN YOU POINT TO CASES THAT
HAVE REVERSED FOR ABUSE OF
DISCRETION A TRIAL COURT'S
DENIAL OF A MOTION
WITHDRAWAL FOR GOOD CAUSE.
>> YOUR HONOR, I CAN, BUT AS
I NOTED IN MY BRIEF
VIRTUALLY ALL OF THE ONES
THAT I FOUND FROM THE
DISTRICT COURT ARE ONES THAT
IN FACT WOULD AMOUNT TO THE
MANIFEST OF JUSTICE
STANDARD.
>> I KNOW YOU CITED
COSTELLO --
>> THE MANIFESTED JUSTICE
CASE.
>> OKAY.
WITH -- IN MY RESEARCH THE
CASES ARE BROKEN DOWN TO IS
YOU THEN HAVE A SECOND
CATEGORY OF CASES WHERE
EITHER IT'S BEING DISCUSSED
IN INDICTA LIKE PART WHERE
THE DISCUSSION -- THEY SAID
THIS WOULD HAVE BEEN
PROBABLY GOOD CAUSE, BUT IT
WAS RAISED POST SENTENCE OR
WHERE THEY SAID THIS LOOKS
LIKE GOOD CAUSE BUT THERE'S
PROCEDURAL REASONS WE WOULD
REVERSE THIS ANY WAY.
WHAT ABOUT ALIAS THAT YOU
CITED.
>> IT WAS A CASE MANIFEST OF
JUSTICE.
THAT WAS THE ONE
WHERE -- THEY ESTABLISH THE
DEFENDANT'S
MISUNDERSTANDING.
EVEN THOUGH EVERYONE
EXPLAINED WHAT THE
CONSEQUENCES OF THE PLEA
WERE.
THE RECORD ALSO ESTABLISHED
THAT HE SAID THERE WAS A
DIFFERENT UNDERSTANDING ON
THE RECORD.
>> YOUR PAIR THEORETICAL
CITES AS A STATE REVERSING
DENIAL OF A MOTION UNDER
SUBSECTION F WHICH SEEMS TO
ME WOULD NOT BE --
>> WHAT I MEAN TO CONVEY BY
THAT IS THAT IS A CASE WHERE
IT WOULD HAVE CLEARLY
SATISFIED THE MANIFEST OF
JUSTICE.
BECAUSE THE RECORD
ABSOLUTELY UNDERSTOOD THAT
HE THOUGHT HE WAS
PLEASE -- PLEADING TO
SOMETHING COMPLETELY
DIFFERENT THAN WHAT HE WAS
PLEADING TO.
I THINK THERE COULD BE NO
DOUBT THAT WOULD BE MANIFEST
OF JUSTICE.
>> I WANT TO MAKE SURE YOU
CAN RESPOND TO JUSTICE
ANSTEAD'S QUESTION AND HIS
CONCERN THAT I BELIEVE THAT
PERCEPTION VERY THOROUGHLY
EXPLAINED TO YOURSELF.
>> AS DO I.
IF I CAN HIT BRIEFLY ON THE
OTHER BIG FACTUAL MISTAKE
JUST TO FINISH WHERE I WAS
WITH MR. KUYPERS TESTIMONY.
THERE'S NOTHING FROM
MR. KUYPERS SAYING WAS PEER
PHRAEUGS AS TO WHAT THE
JUDGE WOULD -- PURE
SPECULATION AS TO WHAT THE
JUDGE WOULD DO.
THE JUDGE SAID IN HIS ORDER
SAID THAT MICHAEL TANZI
TESTIFIED -- HIS LAWYERS
NEVER TOLD HIM ANYTHING TO
LEAD HIM TO BELIEVE THAT THE
JUDGE WOULD GRANT THE
WAIVER.
HIS OWN TESTIMONY THAT THE
DEFENDANT ADMITTED THE
COUNSEL NEVER ADVISED HIM
DIRECTLY OR INDIRECTLY THAT
IT WOULD END UP IN THE COURT
GRANTING THE MOTION.
IN FACT, MICHAEL'S TESTIMONY
WAS SOMETHING VERY
DIFFERENT.
HE SAID, LOOK, I CAN'T
REMEMBER THE EXACT WORDS.
I CAN TELL YOU WHAT THE
EFFECT OF THOSE WORDS WERE
ON ME.
WHAT I UNDERSTOOD THEM TO
BE.
AND MR. CUP PERS SAID HE
COULDN'T REMEMBER THE EXACT
WORDS HE USED EITHER.
BUT ON 2368 MR. CUP PERS
SAID HE WOULD GIVE -- GET ME
A JURY WAIVER.
THAT'S MY UNDERSTANDING.
HE SAID I DON'T KNOW THE
EXACT WORDS, QUESTION, HIS
WORDS TO YOU.
WHAT WAS YOUR UNDERSTANDING?
I THOUGHT I WOULD GET THE
JURY WAIVER.
THERE'S NO BASIS FOR THIS
JUDGE TO HAVE CONCLUDED THAT
HE WAS MAKE THING UP, NOT
BASED ON WORDS.
AND THAT WAS CRUCIAL TO THE
ORDER AND THAT'S WHY YOU
CAN'T DEFER TO THE FACTUAL
FINDING IN THIS ORDER.
IN TERMS OF IT HAVING BEEN
CAREFUL, WHAT WE -- THE
RECORD SHOWING THERE AND
LACK OF UNDERSTANDING.
WE THEN HAVE MICHAEL GOING
AND GETTING THIS AFFIDAVIT
WHICH WHILE BEING CAREFUL
ABOUT EVERYTHING IS NOT
CAREFUL ABOUT WHAT WILL
HAPPEN WITH THE JURY WAIVER.
HE GO THROUGH A COLLOQUY
WHICH -- BECAUSE THE TRIAL
JUDGE COULDN'T HAVE KNOWN.
THEY DON'T COVER WHAT WILL
HAPPEN WITH THE JURY WAIVER.
TO CLOSE UP THE TIME GAPS,
THAT HAPPENED A SHORT TIME
BEFORE LUNCH.
THE HEARINGS ARE BEGUN.
EVERYBODY COMES BACK AFTER
LUNCH -- I THINK THE RECORD
SHOWS IT'S CLOSING AROUND
2:00 AT THIS POINT.
AND THERE'S SOME CROSS
MOTIONS DONE.
MR. KUYPERS HAS BEEN PUTTING
UP THE JURY WAIVER,
PRETENDING IT'S SOMETHING
THAT CAME UP DURING LUNCH.
AND THE JUDGE SAYS WELL, YOU
KNOW I THINK IT'S A WAITING
DECISION.
I WOULD LIKE TO HAVE A JURY.
>> YOU'RE WELL INTO YOUR
REBUTTAL.
THEREAFTER, THERE ARE MORE
PROCEEDINGS MICHAEL
TESTIFIES HE APPROACHES THE
LAWYERS THEY TELL HIM TO
WAIT.
AND AT THE END OF THE DAY
HE'S PRESENTED TO THE COURT
AND HE TELLS THE COURT THAT
HE WANTS TO WITHDRAW HIS
PLEA.
HE GOES INTO HIS
DISSATISFACTION WITH COUNSEL
STARTING WITH MISS ROSSEL
AND THE SEXUAL ALLEGATIONS
AND HE EVENTUALLY GETS TO
THE PART I JUST QUOTED TO
YOU AND I WOULD LIKE TO
RESERVE SOME TIME FOR
REBUS -- REBUTTAL.
>> MAY IT PLEASE THE COURT,
MARGARITA CIMADEVILLA ON THE
BEHALF OF THE STATE.
I THINK JUSTICE CANTERO
QUESTION AS -- AS FAR AS THE
GOOD PORTION OF THE GOOD
CAUSE STANDARD IS REALLY AN
ESSENTIAL THING TO FOCUS ON
BECAUSE THAT'S ESSENTIALLY
WHAT THE TRIAL COURT FOUND
AFTER AN EVIDENTIARY HEARING
IN THIS CASE.
IT FOUND THAT IN THIS CASE
MR. TANZI HAD TAKEN ON A
STRATEGY, A STRATEGY THAT
WAS EXTREMELY REASONABLE
GIVEN THE OVERWHELMING
EVIDENCE AGAINST HIM.
NOT ONLY OF GUILT, BUT OF
ALMOST EVERY AGGRAVATOR
UNDER THE STATUTE.
SO NOT ONLY THE EVIDENCE
PRESENTED AT THE HEARING BUT
THE RECORD WHICH IS CRUCIAL
OF WHAT OCCURRED AT THE TIME
OF THE PLEA, AT THE TIME OF
THE ATTEMPTED WAIVER, AT THE
TIME OF THE ATTEMPTED ORAL
MOTION TO WITHDRAW AND THEN
SUBSEQUENTLY AT NELSON
INQUIRY THAT FOLLOWED IS
CRUCIAL TO THE CREDIBILITY
DETERMINATION THAT THE
DEFENDANT WAS NOT, IN FACT,
UNDER THIS MISIMPRESSION.
>> WE'VE
ALREADY -- ESSENTIALLY
THERE'S ALREADY BEEN A
DETERMINATION ON THE
INEFFECTIVE ASSISTANCE OF
COUNSEL BY THE TRIAL JUDGE
FINDING THAT THIS WAS TRIAL
STRATEGY.
IS THAT WHAT YOU ARE --
>> THAT'S STRATTY.
SHRUM WHAT I HAVE A PROBLEM
WITH.
IS THERE ARE MANY -- NOT
MANY -- THERE ARE JUDGES
ACROSS THE STATE THAT ARE
WILLING TO DO THE PENALTY
PHASE AND ALLOW THE WAIVER
TO OCCUR.
I AM TRY -- I'M HAVING
TROUBLE UNDERSTANDING WHY IT
THAOD BE A SECRET FROM THE
JUDGE AND THE STATE -- YOU
KNOW HERE YOU APPROACH THE
STATE AND SAY MY CLIENT IS
WILLING TO PLEAD GUILT, SAVE
THE STATE A TRIAL, BUT WHAT
HE WANTS IS HE WANTS US TO
THEN GO BEFORE THE JUDGE.
BECAUSE HE KNOWS THAT THIS
IS -- THIS CRIME IS SO
HORRIFIC AND THE AGGRAVATORS
ARE SO SUBSTANTIAL THAT HIS
ONLY CHANCE IS MAYBE BEFORE
A JUDGE, IF A JURY GETS
AHOLD OF THIS THERE'S NO
WAY.
I JUST -- IN THAT -- AT
LEAST IT'S CLEAR TO ME THAT
THIS DEFENDANT THOUGHT THE
TWO WERE GOING TOGETHER.
NOW WHETHER HE WAS CONFUSED
ABOUT IT -- WHY WOULDN'T
THAT -- WHY IS IT THAT THEY
TESTIFIED THAT THEY DIDN'T
TELL THE JUDGE THAT YOU KNOW
THE GUILT PLEA THAT THEY
WOULD LIKE TO ALSO HAVE HIM
CONSIDER A WAIVER.
WHY DID THEY WAIT UNTIL
AFTER THE GUILT PLEA.
>> I THINK THEY WOULDN'T
HAVE BEEN ABLE TO -- THEY
DIDN'T THINK THEY COULD BE
PERSUASIVE IF THEY MADE IT
CONDITIONAL UPON THAT.
>> BUT WHY NOT?
HERE'S A SAVE THE STATE A
SUBSTANTIAL AMOUNT OF TIME
IN TRYING A CASE.
IT'S NOT THE WAIVER OF THE
JURY TRIAL PENALTY PHASE.
THERE MIGHT BE A LOT OF
STATE ATTORNEYS OR JUDGES
THAT WOULD SAY, SURE, WILL
BUY THAT PACKAGE.
I DON'T -- THAT'S WHY I HAVE
TROUBLE SEEING THIS AS A
STRATEGY MOVE THAT WILL KEEP
IT FROM EVERYBODY AND THEN
AFTER THEY'VE ACCEPTED THE
PLEA AS IF THEY ARE GOING TO
MAYBE NOT ACCEPT THE PLEA,
THEN WE'LL SAY BUT NOW WE
WOULD LIKE THE WAIVER.
>> I THINK IT'S CLEAR FROM
THE RECORD THAT THEY DID NOT
THINK THE PROSECUTION WOULD
EVER AGREE TO THE WAIVER OF
THE PENALTY PHASE JURY.
HOWEVER, IT IS IMPORTANT TO
FOCUS ON THAT ALLEGED
SECRECY CAMPAIGN BECAUSE IN
FACT IT GOES TO DISPROVE THE
AELGTS THAT MR. TANZI IS
MAKING NOW
THAT -- ALLEGATION THAT
MR. TANZI IS MAKING NOW THAT
HE THOUGHT IT WAS A DONE
DEAL.
BECAUSELOGICALLY IF YOU
THINK IT'S A DONE DEAL
THERE'S NO NEED FOR SECRECY.
THE ONLY NEED FOR SKRAOESSY
IS TO BE PERSUASIVE.
AND IF YOU NEED TO BE
PERSUASIVE IT'S BECAUSE
THERE'S A DECISION TO MADE.
IF THERE IS A DECISION TO BE
MADE BY THE JUDGE IT'S NOT A
DONE DEAL.
THAT'S WHY HIS TESTIMONY WAS
REJECTED AT THE EVIDENTIARY
HEARING.
>> WELL, WHAT WAS THE POINT
OF THE DOCUMENT AFFIDAVIT
THAT MR. TANZI ENDED UP
SIGNING THAT TALKS ABOUT THE
FACT OF THE WAIVER OF THE
JURY?
WHAT WAS THE PURPOSE OF
THAT?
>> I'M NOT SURE WHAT THE
PURPOSE OF PUTTING IT IN
WRITING WAS.
THAT SOMETHING THAT TRIAL
COUNSEL DECIDED TO DO.
BUT I THINK IT'S IMPORTANT.
BECAUSE MY APPOINT DOES
FOCUS ON THAT QUITE A BIT.
I THINK IT'S IMPORTANT TO
PUT KNIT CONTEXT OF THE
RECORD.
THIS WAS A -- AFFIDAVIT WAS
SUBMITTED TO THE COURT AT
THE TIME WHEN THE ATTEMPTED
JURY WAIVER OCCUR AND THE
RECORD AND WHAT WAS STATED
TO THE COURT, IN FACT, WAS
THE CORRECT STANDARD.
AND IT WAS IN FACT
MR. KUYPERS, NOT THE
PROSECUTION WHO STARTED
RIGHT OFF THE BAT AND SAID,
YOUR HONOR, THIS IS THE
STATE OF THE LAW IT'S IN
YOUR DISCRETION.
WE'RE ASKING YOU AND THE
AFFIDAVIT IS INTENDED TO BE
PERSUASIVE.
AND AS I STATED IN MY BRIEF
THE WORD "WISH" WHICH IS ALL
OVER THAT AFFIDAVIT IS
INTENDED TO PERSUADE THE
COURT.
YOU'RE HONOR, LOOK YOU HAVE
THIS DECISION TO MAKE.
BUT IT'S MY RIGHT AND I'M
GIVING IT UP.
YOU HAVE NO REASON NOT TO
ALLOW ME TO GIVE US WHAT IS
MY RIGHT.
THAT WAS THE LANGUAGE OF THE
AFFIDAVIT.
BUT AT THE TIME IT WAS
PRESENT TO THE COURT, THE
STANDARD WAS ACTUALLY
RECITED IN AT LEAST SIX
DIFFERENT TIMES BECAUSE THE
COURT WAS A BIT HESITANT AS
TO WHETHER TO DO THIS OR
NOT.
THERE WAS IN FACT A
DIFFERENT FROM THE TRIAL
ATTORNEY WHO FIRST STATED
YOUR HONOR, IT'S THE
DISCUSSION.
WE'RE -- WE'VE RESEARCHED
THIS ISSUE AND IT'S NOT ONLY
IMPORTANT HE WAS THE FIRST
ONE TO STATE THE CORRECT
STANDARD.
THEN THE PROSECUTION JUMPED
IN AND SAID YOUR HONOR WE
AGREE ENTIRELY WITH COUNSEL.
THIS IS STANDARD.
IT'S ENTIRELY UP TO YOU.
WE CANNOT OPPOSE IT.
WE'RE NOTE AGREEING TO IT.
BUT WE CANNOT OPPOSE IT.
AND IT WAS REPEATED IN AT
LEAST THREE DIFFERENT PARTS.
>> BUT, IS THERE TESTIMONY,
THAT AGAIN THIS IS SORT OF
THIS CAREFUL STRATEGY ABOUT
WHAT THEY WILL DO AND PLEAD
GUILT HAVING PLEAD FELT.
BUT THAT IT WASN'T UNTIL TWO
DAYS BEFORE THAT THEY
ACTUALLY REALIZED THE LAW
WAS THAT IT WAS TOTALLY
WITHIN THE JUDGE'S
DISCUSS -- DISCRETION.
IS THAT IN THE RECORD?
>> I'M NOT SURE -- WELL,
THERE IS MISS ROSSEL
INDICATES SHE WAS PRESENT AT
THE MEETING ON THE 28th OF
JANUARY AND NOT PRESENT AT
THE MEETING AT ANOTHER
MEETING.
WHERE MR. KUYPERS DISCUSSED
THIS WITH THE DEFENDANT.
I THINK IN THE TWO MONTH
PERIOD THERE'S A LOT OF
DIFFERENT SCENARIOS THAT CAN
OCCUR.
>> THIS IS A VERY SIMPLE
THICK.
WE CAN GO BACK IN THE
RECORD.
THERE'S AN ASSERTION THAT
THEY DIDN'T REALIZE OR
DIDN'T RESEARCH UNTIL TWO
DAYS OR THE DAYS BEFORE THE
PLEA THAT IT WAS WITHIN THE
JUDGE'S DISCRETION.
IS -- DID THEY VERIFY THAT
OR NOT?
IS THAT NOT CORRECT?
>> I THINK IT WAS FAIRLY
SHORTLY BEFORE THAT -- IT'S
NOT THAT THEY DIDN'T
REALIZE.
I DON'T THINK THEY CON
TESTIMONY PHRAEULTED IT.
THERE WERE OTHER DISCUSSIONS
THAT DIDN'T CONTEMPLATE THE
SCENARIO.
I THOUGHT THE LIFE OFFER OR
SOME OTHER ALTERNATIVE TO
SOME PLEA THAT DID
NOT -- AGAIN, TO ME I'M
VISIONING THAT THE SCENARIO
IS AND IT'S PRETTY CLEAR
FROM THE AFFIDAVIT IS,
LISTEN, YOUR BEST BET
IS -- THEY WOULDN'T HAVE
TALK ABOUT THE RING IN THIS
THING THE WHOLE PACKAGE.
YOU PLEAD GUILT.
YOU WILL HAVE A JUDGE DECIDE
THIS.
THE A JUDGE THAT'S NOT
RUNNING FOR REEKELEN OUTION.
HE'S RETIRING.
HE WILL GIVE YOU YOUR
AMBASSADOR CHANCE OF A LIFE
SENTENCE.
YOU WANT TO GO WITH THE
DEAL.
AND THEN TWO DAYS BEFORE
THEY GO, OOPS -- I MEAN, WE
REALIZED THAT NO, IT'S NOTE
AN AUTOMATIC THING BUT WE
BETTER NOT BRING IT UP TO
THE JUDGE YET.
WE WILL TWO STEP IT.
I WOULD THINK THAT SOMEONE
IN THIS DEFENDANT'S STATE OF
MIND THAT IF HE HAD BEEN
TRAVELING UNDER ONE SET OF
CIRCUMSTANCES AND THEN ALL
OF A SUDDEN THE NIGHT BEFORE
HE'S TOLD SOMETHING
ADDITIONAL HE PROBABLY HAVE
A GOOD REASON TO BE
CONFUSED.
>> I DON'T THINK THE RECORD
SHOWS THAT, THAT IS WHAT
OCCURRED.
I DON'T THINK THAT THE FACT
THAT THERE IS DISCRETION ON
THE PART OF THE JUDGE MEANS
THAT IT'S NOT IN HIS BEST
SHOT.
EVEN IF THE LAW IS WHAT IT
IS.
IT'S IN THE DISCRETIONS OF
THE JUDGE TO ACCEPT THEWAYER
OR NOT.
THE FACT THAT IT'S NOT A
CONDITION ON THE PLEA.
THAT'S NOT FORTH COMING FROM
THE OTHER SIDE.
THERE'S NOTHING HE COULD
HAVE DONE TO MAKE THAT
HAPPEN.
IT WAS IN HIS OPINION THAT
WAS NOT FORTHCOMING.
IT WAS HIS ASBESTOS, STILL.
-- IT WAS HIS BEST BET
STILL.
WAS THERE EVEN AN ATTEMPT TO
SEE IF THE STATE WOULD AGREE
TO A WAIVER OF A -- IN THAT
SECTION.
YOU SAY THAT WASN'T
FORTHCOMING HOW DO WE KNOW
THAT?
>> I THINK FROM COUNSEL'S
TESTIMONY.
OKAY.
HE DID NOT THINK THE
PROSECUTOR WOULD EVER AGREE
TO THE WAIVER OF THE JURY.
>> BASED ON WHAT?
>> I DON'T THINK THE RECORD
IS CLEAR THAT HE
SPECIFICALLY TESTIFIED ABOUT
ANY DISCUSSION.
BUT THAT IS WHAT HE BELIEVED
AND THAT'S WHAT HE TOLD --
>> WHY WOULDN'T THE FIRST
THING BE, YOU KNOW WHAT MY
CLIENT WILL PLEAD GUILTY.
CONTEMPLATING IT.
I WOULD -- WE WOULD LIKE THE
PACKAGE.
WE WOULD LIKE YOU TO AGREE
TO IT.
THAT'S WHY I'M TRYING TO
HAVE -- I'M HAVING TROUBLE
WITH WHY THE DEFENSE
WOULDN'T HAVE BEEN
FORTHRIGHT ABOUT IT AND IT'S
JUST NOT RINGING TRUE TO ME
THAT THEY WOULD BE SAYING
WE'LL SPRING IT ON THEM
AFTERWARDS AS IF THE
STATE --
>> YOUR HONOR WE
CONTEMPLATED.
>> WITH THE COURT, NOT THE
CONFIDENT.
>> WITH THE COURT.
AND WITH THE STATE TO ASK ON
HIS BEHALF FIRST, ARE YOU
WILLING TO CONSIDER WAIVING
THE JURY TRIAL -- MY CLIENT
IS CONSIDERING GIVING UP HIS
RIGHT TO TRIAL.
EVEN THOUGH THIS LOOKS LIKE
A PRETTY YOU KNOW
SUBSTANTIAL CASE OF GUILT
THAT'S SOMETHING THAT WILL
SAVE THE STATE TIME AND
MONEY AND HAVING THE -- IN
HAVING TO PROSECUTE.
>> AGAIN, I DON'T KNOW THE
QUESTION WAS ASKED OR NOT AT
THE EVIDENTIARY HEARING.
IT'S IMPORTANT TO POINT OUT
HE WAS CALLED BY THE STATE
AT THE EVIDENTIARY HEARING.
PERHAPS IF IT WASN'T
SOMETHING BROUGHT UP ON
DIRECT IT WAS NOT CROSSED
ON.
BUT IT WAS CLEAR FROM A
MR. KUYPERS'S TESTIMONY THAT
HE WAS FAIRLY CERTAIN THAT,
THAT THE PROSECUTOR WOULD
NOT AGREE.
CAN WE GO BACK -- I THINK
THERE'S A QUESTION THAT'S
NOT BEEN ANSWERED.
I THINK THAT INHERENT IN THE
QUESTION WAS THAT, THAT THE
DEFENDANT COUNSEL DIDN'T
KNOW WHAT THE LAW WAS AT THE
TIME THIS DISCUSSION WAS
UNDER WAY WITH REGARD TO A
PLEA OR NOT.
IS IT THAT -- IS THAT THE
ATTORNEY THE NIGHT BEFORE
PULLED THE CASES ON THAT
ISSUE OR IS THERE
TESTIMONY -- HE HAD NO IDEA
WHAT THE LAW WAS IN THIS
AREA?
BEFORE THE MORNING OF THE?
>> I THINK IT IS CLEAR THAT
HE KNEW WHAT THE LAW WAS
WITH RESPECT TO THE
DISCRETION OF THE COURT TO
NOT --
>> THAT'S THE ISSUE WE'RE
TALKING ABOUT, YEAH.
SO IT WAS CLEAR THAT HE KNEW
WHAT THE LAW WAS AND ALL
THIS RESEARCH WE'RE TALKING
ABOUT HE JUST PULLED THE
CASES TO BE CERTAIN.
IS THAT WHAT YOU ARE -- IS
THAT WHAT THIS RECORD SHOWS?
>> ABSOLUTELY.
AND NOT ONLY THAT BUT THE
RECORD ITSELF THE DISCUSSION
OF THAT MORNING HE STATES
THE TRUE STANDARD AND THE
PROSECUTOR ACTUALLY --
>> THE CONCERN I THINK YOU
ARE HEARING FROM THE
QUESTIONS WAS THIS PART OF
THE DISCUSSION OVER THIS
PERIOD OF TIME.
YOU'VE HEARD IT FROM SEVERAL
JUSTICES THAT WAS THIS LAURA
WHEREOF THE LAW AT THE TIME
THEY WERE DISCUSSING ALL OF
THIS THAT IT WAS UNDER
DISKUGS NO MATTER WHAT
HAPPEN.
>> I THINK IT WAS CLEAR HE
WAS.
I THINK THE ONLY ALLEGATION
IS THAT THE DEFENDANT HAS
THIS MISIMPRESSION.
I THINK IT'S IMPORTANT TO
THE POINT THAT THE COURT
SAID IF THERE'S A
MISIMPRESSION IT CANNOT JUST
BE BECAUSE IT IS.
IT HAS TO BE BASED ON SOME
REASONABLE BASIS.
I THINK THAT THERE'S ALSO
IMPORTANT TO FOCUS ON WHAT
IS SAID BY THE DEFENDANT ON
THE RECORD AT THE TIME THAT
HE ATTEMPTS TO WITHDRAW THIS
PLEA ORALLY.
AND HE NEVER SAID MY
ATTORNEY TOLD ME THE WRONG
STANDARD.
HE NEVER SAYS "MY ATTORNEY
TOLD ME THAT THERE WAS NO
WAY YOU WOULD NOT ACCEPT
THIS WAIVER.
MY ATTORNEY PROMISED ME."
>> WHICH BRINGS UP AN
INTERESTING QUESTION HERE.
HE MADE THIS A SORT OF ORAL
MOTION TO WITHDRAW HIS PLEA
PRIOR TO THE JURY BEING
PICKED AND ALL FOR THE
PENALTY PHASE.
>> YES.
>> SO SHOULD THE TRIAL JUDGE
HAVE DEALT WITH THAT AT THAT
POINT?
I MEAN, THERE WAS NOTHING TO
LOSE AT THE POINT WHEN HE
MADE HIS ORAL MOTION.
NOTHING FURTHER HAD GONE ON.
IT WOULD HAVE BEEN A SIMPLE
MATTER OF SAYING, OKAY.
YOU DIDN'T UNDERSTAND WHAT
WAS GOING ON.
SO WHY DON'T WE LET YOU
WITHDRAW THE PLEA AT THAT
POINT.
>> I BELIEVE THE RECORD
SHOWS THAT HE DID.
ND -- AND THE RESPONSES FROM
THE DEFENDANT -- HE DID
ADDRESS IT.
HE ASKED -- MR. TANZI
ADDRESSED THE COURT ON THE
RECORD.
WHEN MR. TANZI -- OR IT WAS
ASKED WHAT HE WANTED TO SAY
HE SAID WELL I WASN'T
ENTIRELY TRUTHFUL WITH THE
COURT EARLIER TODAY AND WHAT
HE POINTS O IS NOT THE FACT
THAT HE ASSUMED OR HAD THIS
IMPRESSION THAT THE WAIVER
WAS A DONE DEAL.
IF HE LATER TESTIFIED AT THE
EVIDENTIARY HEARING BUT HE
FOCUSES ON HIS -- BING
DISPLEASED WITH HIS
ATTORNEYS.
>> DIDN'T HE SAY SOMETHING
TO THE EFFECT THAT, YOU KNOW,
I THOUGHT IT WOULDN'T HAVE
TO HAVE A JURY AT THE
PENALTY PHASE BUT IF I WILL
HAVE ONE AT THE PENALTY
PHASE I MAY AS WELL GO ON
AND HAVE A JURY DETERMINE
GUILT OR INNOCENCE ALSO.
>> CERTAINLY.
NOT THOSE WORDS BUT
SOMETHING TO THAT EFFECT?
>> BECAUSE HE CERTAINLY
HOPED THAT WOULD BE THE
RESULT.
THAT'S PRECISELY THE KIND OF
SECOND BITE OF THE APPLE
THAT IN COSTELLO THAT THIS
COURT WARNED --
>> AT THAT POINT THERE WAS
NOTHING TO LOSE IN THIS WAS
SAME DAY HE HAD ENTERED THE
PLEA SEVERAL HOURS LATER.
SO I'M HAVING SOME PROBLEMS
TRYING TO UNDERSTAND WHY IT
WASN'T DEALT WITH AT THAT
POINT INSTEAD OF GOING
THROUGH THE WHOLE MOTION OF
DOING A JURY SELECTION,
GOING THROUGH THE PENALTY
PHASE AND THEN COUNSEL
FILING A MOTION TO WITHDRAW
THE PLEA.
>> BUT IT WAS DEALT WITH.
HE WASN'T ALLOWED TO
WITHDRAW HIS PLEA JUST
BECAUSE.
AND I DON'T THINK THAT CAN
EVER POSSIBLY BE THE
STANDARD.
>> DOES THE JUDGE MAKE A
RULING HE COULDN'T AT THAT
POINT OR WAS NO RULING MADE?
>> THE TRIAL COURT MADE A
RULING DENYING THE MOTION
AND -- BUT IT IS IMPORTANT
TO FOCUS ON WHAT THE
ALLEGATIONS WERE AT THAT
POINT IN TIME.
MR. TANZI BEGINS TO TALK
ABOUT BEING DISPLEASED WITH
HIS ATTORNEYS.
HE THEN -- THE COURTS ASKED
ABOUT WHAT ABOUT YOUR
ATTORNEY CAUSES YOU TO BE
DISPLEASED.
HE NEVER ONCE SAID THEY TOLD
ME YOU WOULD ACCEPT
THISWAYER.
HE THEN GOES ON TO TALK
ABOUT MISS ROSSEL AND THE
PROBLEMS OF WHATEVER SEXUAL
IMPROPRIETIES HAD OCCURRED
BEFORE.
>> IT SEEMS THERE WERE TWO
THINGS GOING ON.
HE WAS ASKING TO WITHDRAW
HIS PLEA AND ASKING TO
CHANGE HIS ATTORNEY.
AND SO THE COURT SEEMED TO
HAVE FOCUSED ON THE SECOND
ASPECT OF IT VERSUS THE
FIRST ASPECT OF WITHDRAWING
THE PLEA.
>> BECAUSE WHEN HE ASKED WHY
HE WANTS TO WITHDRAW THE
PLEA HE STARTS TALKING ABOUT
HOW HE IS DISPLEASED WITH
HIS ATTORNEY THERE.
THEY ARE INTERTWINED.
>> DO YOU THINK THERE WAS
CONFUSION GOING ON HERE
MISAN PREHEPBGS ON
MR. TANZI'S PART AS TO WHAT
THE WHOLE CONSEQUENCE IS OF
THIS --
>> ABSOLUTELY NOT YOUR
HONOR.
I BELIEVE WHAT HAPPENED HE
TOOK HIS BEST SHOT AND THE
RESULT THAT HE WISHED FOR
WAS NOT WHAT OCCURRED.
THAT'S PRECISELY THE
STANDARD THAT CANNOT
POSSIBLY BE --
>> DID YOU SAY THAT THE
STATE DIDN'T OBJECT TO THE
MOTION TO WITHDRAW THE PLEA?
>> AT THE TIME THAT IT WAS
MADE ORALLY.
>> THERE WAS NO OBJECTION
FOR THE STATE -- WHEN THE
MOTION WAS THEN FILED IN
WRITING FOR IT TO RELATE
BACK TO THE TIME
PRESENTENCE.
YEAH.
YOU HAD SAID SOMETHING ABOUT
THE STATE SAID IT WASN'T
GOING TO OPPOSE THE MOTION
OR SOMETHING.
>> I'M SORRY IF I SAID THAT.
>> I THINK YOU WERE TALKING
ABOUT THE -- HE GOING TO
WAIVE THE JURY.
>> THE STATE DID OPPOSE IT.
BUT IT DID STATE TO THE
COURT ON SEVERAL OCCASIONS
STATING THE CASE LAW.
TWO OF THE COURTS THAT THE
COURT WOULD BE CLEAR THAT IT
IT WAS WITHIN THE COURT'S
DISCRETION DESPITE THE STATE
NOT --
>> WHAT YOU SAID THERE WAS A
SUBSEQUENT WRITTEN MOTION
AND THE STATE DIDN'T IMPOSE
IT RELATING BACK TO THE
ORAL --
>> THAT'S CORRECT.
AND THEY PUT IT UNDER THE
MORE LIBERAL GOOD CAUSE
STANDARD PRESENTENCE
STANDARD.
>> WHAT DID THE STATE STAY
WITH REFERENCE TO THE WAIVER
OF THE JURY FOR THE PENALTY
PHASE?
>> AT THE TIME THE WAIVER IS
PRESENTED TO THE COURT THE
STATE STATED ON THE RECORD
CONSENTING TO IT BUT IT WAS
IN THE COURT'S DISCRETION
AND CITED THE CASES THAT
STOOD FOR THAT PROPOSITION.
>> MOREOVER, WE HAVE -- THE
EVIDENTIARY HEARING THE
TESTIMONY OF MR. KUYPERS
WHICH WAS BELIEVED BY THE
COURT.
AND THAT IS A SUBSTANTIAL
BURDEN FOR MR. TANZI TO
OVERCOME.
BECAUSE IT IS A FINDING OF
CREDIBILITY.
AND IT IS AN ABUSE OF
DISCRETION STANDARD AND THEY
SIMPLY HAVEN'T ESTABLISHED
THAT.
>> WHAT ABOUT HIS
STATEMENT -- ESPECIALLY ON
FOURTH PAGE OF THE ORDER
SAYS IN HIS OWN STATEMENT
THE DEFENDANT ADMITTED THE
COUNSEL NEVER ADVISED HIM
DIRECTLY OR INDIRECTLY THAT
HIS GUILT PLEA WOULD LIKELY
RESULT IN THE COURT GRANTING
HIS MOTION TO WAIVE.
AND HE CITED TO THE RECORD A
2368 AND I WOULD HAVE TO GO
BACK AND LOOK TO SAY THAT,
THAT PARAGRAPH ABOUT WHAT
THE DEFENDANT ACTUALLY SAID
TO THE COURT IS INCORRECT.
>> RIGHT.
WELL WHAT OCCURRED WAS THAT
HE WAS ASKED REPEATEDLY TO
PLEASE STATE WHAT IT IS THAT
MR. KUYPERS HAD SAID THAT
LED HIM TO THIS IMPRESSION.
HE COULD NOT UTTER A SINGLE
WORD THAT MR. KUYPERS HAD
SAID TO HIM.
HE COULD NOT SAY THAT WHAT
THIS REASONABLE BASIS FOR
HIS IMPRESSION WAS AND HIS
JAN -- ANSWER TO I THINK
ABOUT --
>> BUT THE -- SO WHAT HE
SAID WAS I WAS CONFUSE ABOUT
MY PLEA.
I THOUGHT THAT I WAS GOING
TO BE ABLE TO HAVE THE JUDGE
SENTENCE ME.
CORRECT?
THAT'S WHAT HE -- THIS
DEFENDANT, WHO WE KNOW IS
SERIOUSLY FROM ALL THE BOTH
AGGRAVATION AND MITIGATION
THIS IS A TERRIBLE, TERRIBLE
MURDER CASE.
BUT THERE'S ALSO IN READING
THIS DEFENDANT'S HISTORY HE
WAS INSTITUTIONALIZED AS A
CHILD AND HE WAS ABUSED FOR
SEVERAL YEARS.
SO WE'RE NOT EXACTLY PLAYING
WITH SOMEBODY THAT HAS GOT
YOU KNOW HIS Ph.D.
IF HE IS ASKED HE SAID I
UNDERSTAND THAT.
A FEW HOURS AFTER HE SAID I
UNDERSTAND THAT THESE TWO
WERE GOING TOGETHER.
WHAT EXACTLY DID YOU COUNSEL
SAY -- HE SAID I CAN'T
REMEMBER EXACTLY.
HOW IS THAT NOT -- I MEAN
HE'S STILL SAYING THAT HE
GOT THAT IMPRESSION FROM
EVERYTHING.
HOW DO YOU EXPECT THE
DEFENDANT I THEY DON'T HAVE
A TAPE RECORDER TO KNOW
LET'S -- ON THE NIGHT OF
THIS DAY HE TOLD ME THIS.
ISN'T THAT ALL HE'S REALLY
SAYING?
>> HE SAYING THAT AT THE
EVIDENTIARY HEARING MUCH
LATER.
I THINK IT'S IMPORTANT HE
DOESN'T SAY THAT AT THE
TIME.
AND YET IT'S NOT THAT HE
DOESN'T SAY ANYTHING.
HE SAYS LOTS OF THINGS.
HE GOES ON, ON PAGE AFTER
PAGE AFTER PAGE.
>> YOU MEAN ON THE DAY.
>> OF THAT DAY.
>> YOU WOULD HAVE TO LOOK AT
THAT.
>> ABSOLUTELY.
>> AND COMPARE HIS TESTIMONY
THERE WITH THE TESTIMONY OF
THE EVIDENTIARY HEARING.
>> HE GOES ON TO SAY AND I
THINK IT'S IMPORTANT TO TALK
ABOUT HIS MENTAL L
DEFICIENCIES.
THERE'S MENTAL DEFICIENCY
AND THERE'S MENTAL
DEFICIENCIES.
IT'S CLEAR WE'RE DEALING
WITH A PERSON WITH WHATEVER
MENTAL PROBLEMS HE MAY NOT
HAVE THEY DON'T EFFECT HIS
ABILITY TO UNDERSTAND THE
PROCEEDINGS AGAINST HIM.
I THINK THAT'S NOT ONLY
EVIDENCE BY HIS PRIOR
COMPETENCY EVALUATION BUT
ALSO BY WHAT HE STATES ON
THE RECORD.
HE STATED DURING THE INQUIRY
HE KNOWS HOW TO GET HIS
ATTORNEY OFF HIS CASE.
HE HAS PREVIOUSLY THREATENED
HIS ATTORNEYS TO GET THEM
OFF HIS CASE.
HE'S NOT A PERSON THAT'S NOT
UNDERSTANDING OF THE SYSTEM.
WHO IS NOT UNDERSTANDING OF
GREAT DETAIL OF WHAT IS
SYSTEM IS.
ON THIS RECORD THAT THIS
DEFENDANT MASTER BAITED IN
FRONT OF ONE OF
HIS -- THAT'S CORRECT
COUNSEL.
>> HOW DID THAT COME UP IN
THIS RECORD THAT, THAT IN
FACT HAD HAPPENED?
>> HE DISCUSSES IT AT LENGTH
DURING THE INITIAL -- THE
ORAL MOTION TO WITHDRAW
BECAUSE WHEN HE IS ASKED BY
THE COURT WHAT ARE YOUR
PROBLEMS WITH THE ATTORNEY
HE SAID WHAT HAPPENED THESE
ALLEGATIONS HAD OCCURRED IN
FRONT OF A DIFFERENT JUDGE
IN THE CASE HAT BEEN
REASSIGNED TO A NEW JUDGE IN
THIS JUDGE WAS NOT ENTIRELY
FAMILIAR WITH EVERYTHING
THAT HAPPENED.
AND PRETTY MUCH YOU HAVE
BEEN DEALT WITH ATTORNEY WAS
REMAINING ON THE CASE.
EVERY TIME SHE MET WITH THE
DEFENDANT WOULD COME
ACCOMPANIED BY SOMEONE ELSE.
SO THIS JUDGE WAS NOT
ENTIRELY FAMILIAR WITH THE
FACTS OF ALL THOSE
ALLEGATIONS.
BUT THE DEFENDANT FREELY
ADMITS TO THEM AND THAT'S
WHAT HE FOCUSES ON WHEN HE
IS SKA -- ASKED WHAT ARE
YOUR PROBLEMS WITH YOUR
ATTORNEYS.
THAT'S ONE OF THE REASONS
WHY HIS TESTIMONY ABOUT THE
EVIDENTIARY HEARING IS NOT
BELIEVEABLE BECAUSE WHEN HE
IS ASKED DIRECTLY BY THE
COURT, DO YOU HAVE A PROBLEM
WITH MR. KUYPERS WHO EVEN
MISS ROSSEL IN HER AFFIDAVIT
ADMITS WAS THE ONE WHO WAS
DEALING WITH HIM BECAUSE OF
THESE PROBLEMS, HE WAS
DEALING MORE CLOSELY WITH
THE DEFENDANT.
SO SO WHEN HE WAS ASKED
SPECIFICALLY IF HE HAD A
PROBLEM WITH MR. KUYPERS I
HAVE ABSOLUTELY NO PROBLEM.
IF NATURAL THING TO SAY IF
YOU ATTORNEY MISADVISED YOU
OR GIVE YOU AN IMPRESSION
WOULD BE TO SAY THAT.
SO AND I JUST WANT TO
BRIEFLY SAY THAT'S ONE OF
COUNSEL'S ARGUMENTS THAT THE
COMPETENCY WAS NOT A
STANDARD TO BE USED BUT WHEN
THAT IS THE ARGUMENT THAT
THIS PERSON'S -- IF THAT IS
THE ARGUMENT ALTHOUGH HIS
DIDN'T MAKE IT HERE BUT HE
MAKES KNIT THE BRIEF THAT
BECAUSE OF HIS
MENTAL -- MENTAL STATUS THIS
MISIMPRESSION IS
UNDERSTANDABLE THEN
COMPETENCY IS ENTIRELY
RELEVANT.
BECAUSE HE WAS NOT ONLY
BECAUSE OF THE EVALUATION
BUT THE RECORD ITSELF THE
COLLOQUY ITSELF AND EVERY
DETAIL OF THE DISCUSSIONS AT
THOSE FOUR CRITICAL POINTS
IN TIME --
>> TELL ME WHAT THE RECORD
SHOWS WITH REFERENCE TO THIS
ISSUE OF HIM BEING ADVISED
IF HE WAS IN OTHER WORDS
THAT'S WHY IT'S AN
OPEN-TENDED QUESTION THAT
DURING THE PLEA DON'T SAY
ANYTHING ABOUT THE JURY FOR
THE PENALTY PHASE.
DON'T MAKE AN ISSUE OF THAT.
THAT WILL ALL -- WHATEVER -- WE
ARE ENLIGHTENED AS TO
WHETHER THE LAWYERS
INSTRUCTED HIM TO THAT
EFFECT OR YOU KNOW -- TELL
ME -- WHAT'S THE RECORD
SHOWS ABOUT THAT ASPECT.
>> HIS TESTIMONY IS CLEARLY
THAT, THAT WAS THE SECRECY
CAMPAIGN WAS WHAT WE WERE
DOING.
MISS ROSSEL'S AFFIDAVIT
POINTS TO THAT BEING THE
STRATEGY AND EVEN
MR. KUYPERS IN HESS
TESTIMONY AGREE THEY'D WERE
TRYING TO CATCH THE STATE.
>> IS THERE A PROBLEM WITH
THAT, THAT IS THE IDEA YOU
KNOW OF SOMETIMES THAT THE
LAWYERS SAY DON'T OPEN YOUR
MOUTH.
>> YEAH.
>> AND THEN DAY ARE JOINING
THE COURSE OF THE PLEA
COLLOQUY IF THE DEFENDANT
WANTS TO SAY WELL OF COURSE
I'M EXPECTING YOU KNOW THAT
THEY THERE NOT BE A JURY
DURING -- IN ESSENCE THE
LAWYERS HAVE SAID --
>> RIGHT.
>> YOU KNOW DON'T RAISE
ANYTHING BECAUSE THEY ARE SO
FRIGHTENED THAT THE JUDGE
WON'T ACCEPT THE PLEA TO
BEGIN WITH.
WELL THE PROBLEM IS THAT YOU
WAS THERE AN ISSUE LIKE THAT
HERE?
>> I UNDERSTAND THAT MIGHT
EXPLAIN SOME OF THE ANSWERS
IN THE COLLOQUY.
BUT THE FACT OF THE MATTER
IS THAT WE DON'T JUST HAVE
THE COLLOQUY.
ALTHOUGH THE COLLOQUY IS
IMPORTANT.
WE HAVE THE COLLOQUY.
WE HAVE THE EXPRESSION FROM
THE RECORD IMMEDIATELY AFTER
SHORTLY AFTER WHEN THE
ATTEMPTED JURY WAIVER IS
PRESENTED TO COURT.
WE HAVE THE DEFENDANT
SPEAKING ON THE RECORD WHEN
HE MAKES HIS ORAL MOTION AND
AN INQUIRY SUBSEQUENT TO
THAT.
AT NONE OF THOSE OTHER TIMES
IS THIS BROUGHT OUT AND
SPECIFICALLY THE DEFENDANT
SAYS WHEN HE FIRST ADDRESSES
THE COURT HE SAID I WASN'T
TRUTHFUL BEFORE TO THE
COURT.
WELL THE FIRST THING OUT OF
YOUR MOUTH WOULD BE I WASN'T
TRUTHFUL ABOUT THE FACT THAT
I WAS PROMISED ANYTHING.
I WAS PROMISED YOU WOULD
ACCEPT THIS.
HE SAID I WAS NOT TRUTHFUL
TO YOU ABOUT MY PROBLEMS
WITH MY ATTORNEY.
SO NOT ONLY THAT, THE SECOND
POINT THAT IS IMPORTANT TO
MAKE ABOUT THE SECRECY
CAMPAIGN IS THAT
IT -- BELIES HIS TESTIMONY
MR. TANZI'S TESTIMONY AT THE
EVIDENTIARY HEARING.
IF IN FACT HE UNDERSTOOD
THERE TO BE A DONE DEAL
THERE'S NO REASON TO
MAKE -- HAVE A SECRECY
CAMPAIGN.
IF YOU WERE TRYING TO CATCH
THE PROSECUTION OFF GUARD,
WHICH EVEN MR. ROSSEL ADMITS
IN HER AFFIDAVIT WAS NOT
SUCCESSFUL BUT THEY HAD THE
CASES STATING THE
APPROPRIATE STANDARD.
BUT IF THERE A NEED FOR
SECRECY CAMPAIGN YOU NEED TO
BETTER SUEDE THE JUDGE.
IF YOU NEED TO PERSUADE THE
JUDGE THERE WAS A CHANCE
THAT THE JUDGE WAS NOT GOING
TO ACCEPT THE WAIVER.
AND MR. TANZI AND EVERYTHING
IN THE RECORD SUPPORTS THE
TRIAL COURT'S FINDING THAT
HE UNDERSTOOD THAT AND
UNDERTOOK THIS STRATEGY
BECAUSE IT WAS HIS BEST SHOT
WHEN FACED WITH AN
OVERWHELMING EVIDENCE NOT
ONLY OF GUILT BUT OF 7
SEPARATE AGGRAVATORS.
AND THAT IS WHY THIS COURT
NEEDS TO AFFIRM THE TRIAL
COURT'S DECISION TO DENY
THIS --
>> SPEAKING OF 7
AGGRAVATORS.
>> YES.
THE TRIAL JUDGE IN THIS CASE
FOUND THAT THIS MURDER WAS
COMMITTED DURING THE COURSE
OF A KIDNAPPING AND DURING
THE COURSE OF SEXUAL
BATTERY.
AND IS THAT -- IS THAT
PROPER THAT HE WOULD FIND
AND WEIGH AND I THINK HE
GAVE SUBSTANTIAL WEIGHT THAT
IT WAS COMMITTED DURING A
SEXUAL BATTERY AND COMMITTED
DURING THE KIDNAPPING?
>> WELL, FRANKLY, YOUR HONOR
THE STATUTE DOESN'T EXPRESSLY
ADMIT IT OR PROHIBIT IT.
I DON'T THINK THERE'S ONE
CASE THAT MR. TANZI'S
COUNSEL HAS STATE FORD THE
PROPOSITION THAT IS NOT
ALLOWED UNDER THE STATUTE.
>> MOST OF THE CASES WE SEE
EVEN WHEN THEY ARE MULTIPLE
FELONIES COMMITTED YOU SORT
OF TAKE ONE AND KIND OF GO
WITH IT AND HERE THE TRIAL
JUDGE SPECIFICALLY DELINEATES
USES THE TWOING A A GREAT
SRAEUTOR AND GIVES BOTH
SUBSTANTIAL WAY.
>> IN MOST INSTANCES WHEN
TWO OR MORE
FELLLY -- FELONIES ARE
COMMITTED TOGETHER THEY
THOUGH THE SENTENCE.
THAT'S NOT CASE HERE AND
THAT'S PLEASE SIZELY WHAT
THE CASE FOCUSES ON.
AND IN ANY EVENT THE STATE
ADMIT --
>> WHY AREN'T THEY
INTERTWINED HERE?
>> BECAUSE HE DISTINCTLY
COMMITTED A KIDNAPPING FOR
THE PURPOSE OF GETTING
HEFL -- HIMSELF TO
KEY WEST.
AND THEN SUBSEQUENT TO THAT
HE SEPARATELY FORMED THE
IDEA OF THE SEXUAL BATTERY.
>> SO YOU ARE ARGUING THAT
THESE ARE ALL -- WE HAVE
DIFFERENT CRIMINAL EPISODES
HERE.
THIS ISN'T ONE THAT JUST --
>> THE KIDNAPPING IS
CERTAINLY CONTINUING.
BUT THE SEXUAL BATTERY YOU
MAY NOT MISS IN HIS CON
TPEBGS IS AN AFTER THE FACT
THOUGHT.
WHEN HE HAD THE VICTIM BOUND
AND GAGGED IN THE BACK OF
THE CAR.
HE MIGHT AS WELL ASSAULT
HER.
>> I THINK HIS CONFESSION
FAIRLY CLEARLY LAYS OUT THAT
IT WAS A SEPARATE CRIME ALL
TOGETHER.
I WANT TO GO BACK TO JUST
SOMETHING AND SEE
JUST -- I'M LOOKING AT
COLLOQUY FROM PAGES 2045 AND
2046 OF THE RECORD.
WHEN YOU SAID THAT RIGHT
AFTER HE -- THE JUDGE
WOULDN'T WAIVE THE PENALTY
PHASE THAT ALL HE DID WAS
COMPLAIN ABOUT HIS COUNSEL
NOT ABOUT THIS ISSUE.
BUT HE SAYS IN THERE I WANT
COMPETENT COUNSEL.
I DON'T WANT A COUNSEL TO
LIE TO ME AS WHO HE OR SHE
THINKS ABOUT WHAT IS
HAPPENING OR NOT HAPPEN.
WE WENT THROUGH PROCESS TO
GET A JURY.
THEN WE WILL PICK A JURY WHY
NOT HAVE A GUILT PHASE.
AS I READ THIS, IT SEEMS TO
ME PRETTY CLEAR THAT WHAT HE
IS SAYING RIGHT OFF THE BAT
IS THEY MISREPRESENTED TO ME
WHAT THE EFFECT OF MY PLEA
WAS GOING TO BE.
DO YOU NOT READ IT THAT WAY.
>> I DON'T READ THAT IT WAY.
I WANT TO POINT OUT WHEN HE
SAYS I'M GOING TO GET NO
FINALITY TO THIS CASE.
THAT'S CLEARLY AN EXPRESSION
OF THE DISAPPOINTMENT THAT
THE COURT DID NOT ACCEPT THE
JURY WAIVER NOT THAT HE
BELIEVES THAT THERE WAS NO
DISCRETION IN THE COURT'S
PART.
NOW THE STATEMENT ABOUT HIS
COUNSEL'S MISADVISING HIM
FURTHER SHORTLY AFTER THAT
THERE WAS AN INIR -- INQUIRY
WHERE H SPECIFICALLY ASK
WHAT THE MISADVICE.
I DON'T HAVE THE REPORT TO
CITE.
HE IS SPECIFICALLY ASKED
WHAT MISADVICE AND HE STATES,
HE TALKS ABOUT A PRIOR TIME
WHEN WE WERE DISCUSSING HIS
ABILITY TO -- HE DISCUSSES
TWO SEPARATE ISSUE.
THE ABILITY TO WAIVE THE
JURY THE GUILT PHASE JURY.
IN OTHER WORDS HAVING A
BENCH TRIAL.
AND IT IS CLEAR IN HE ADMITS
WHEN THE COURT THEN ASKED
ISN'T THAT IN FACT WHAT
HAPPENED AND HE AGREES THAT
THAT WAS NOT MISADVICE.
>> IF THERE ARE NO OTHER
QUESTIONS I WOULD ASK THE
COURT TO AFFIRM THE LOWER
COURT ORDER AFFIRMING RATHER
DENYING THE MOTION TO
WITHDRAW MR. TANZI'S PLEA
AND AFFIRM HIS DEATH
SENTENCE.
>> THANK YOU.
>> JUST TO GO BACK TO THAT
ISSUE THERE IS AN ENTER
RELATIONSHIP WITH THE NELSON
INQUIRY IN THAT PORTION THAT
JUSTICE PARIENTE WAS
REFERRING TO AND IT'S A
CLEAR REFERENCE TO ADVICE
REGARDING THE WAIVER OF THE
PENALTY PHASE.
>> BUT IT DOES SAY THAT A
2066 STATED HIS ATTORNEY HAD
INCORRECTLY ADVISED HIM THAT
HE -- WAS IT
INCORRECTLY -- DID HE SAY HE
WOULD BE ABLE TO WAIVE?
>> THE JURY PART -- WOULD BE
ABLE TO WAIVE THE JURY PART
IN THE FILE OF THE PENALTY
PHASE.
>> HE -- THAT'S CORRECTED
BY.
SO ISN'T THAT --
>> WELL THE STATE
THOUGHT -- HE SAID, WELL HEY
IT TURNS OUT THAT WAS
CORRECT.
THIS WAS EARLIER ON THAT HE
RECEIVED THIS.
AND ACTUALLY THERE'S A MEMO
IN THE RECORD THAT THERE
SEEMS TO BE REFERRING TO
THAT ACTUALLY DOES RELATE TO
THE GUILT PHASE JURY.
>> SO WITH ALL OF THIS --
>> EVIDENCE AT LEAST IN
MICHAEL TANZI'S MIND HE
EXPRESSES CONFUSION ABOUT
THE ADVICE THAT HE RECEIVED
WITH RESPECT TO THEWAYER OF
THE PENALTY PHASE JURY.
>> WHY ISN'T AGAIN OTHER
THAN WHAT YOU SAID, WELL WE
WILL HAVE TO COMPARE THE
TESTIMONY WITH -- WHAT THE
JUDGE FOUND WHY THE
DETERMINATION THAT THE
JUDGE'S CALL AS TO WHAT THE
DEFENSE ATTORNEYS TOLD
MR. TANZI AND WHETHER HE WAS
REASONABLE IN NOT
UNDERSTANDING THE EFFECTS OF
HIS PLEA.
>> WELL, OBVIOUSLY BECAUSE
HE GOT IT WRONG BASED ON THE
RECORD.
ALSO THE COURT IGNORED OTHER
EVIDENCE IN THE RECORD HE
DIDN'T LOOK TO WHAT HAPPENED
AT THE TIME IN THE RECORD
AND HE DIDN'T LOOK TO TO THE
AFFIDAVIT.
HE DIDN'T LOOK AT THE WAS A
PRY -- PREPARED AND SIGNED
BY MR. KUYPERS.
AND ALSO WE HAVEN'T HAD AN
OPPORTUNITY TO TOUCH ON IT
IT EXCLUDED THE EVIDENCE OF
DR. WHICH WOULD HAVE
EXPLAINED WHY IT'S POSSIBLE
FOR SOMEONE LIKE MICHAEL
TANZI EVEN IF HE RECEIVED
THE ADVICE TO NEVERTHELESS
BE UNDER A MISAPPREHENSION.
THAT WAS RELEVANT EVIDENCE.
THE STATE SAYS WELL CON
TENCE COULD BE RELEVANT.
SURE IT'S RELEVANT.
WHAT IT IS RELEVANT IS THE
MENTAL STATE IS.
HE WAS MENTALLY RETARDED.
>> AND THE MAIN ISSUE HERE
IS ATTENTION DEFICIT.
THEY CLAIMED HE HAS
ATTENTION DEFICIT DISORDER.
>> WHAT PERCENTAGE OF THEIR
PEOPLE IN OUR SOCIETY
PROFESS ARE DIAGNOSED WITH
ATTENTION DEFICIT
DISORDERER?
>> YOUR ON -- YOUR HONOR I'M
GLAD YOU ASK THE SKWE.
THE CLAIM ISN'T SOMEONE
CAN'T ANSWER A PLEA BUT THAT
SOMEBODY WITH MICHAEL
TANZI'S PROFOUND DISTURBANCE
OF ATTENTION COULD HAVE
SPECIFIC PROBLEMS OF
UNDERSTANDING AND THAT
EVIDENCE WOULD BE RELEVANT
TO UNDERSTANDING HOW HE YOU
COULDN'T MADE THE MISTAKE
THAT HE DID IN THIS CASE.
AND YOUR HONOR --
>> IF YOU WANT TO MAKE ONE
PORE POINT.
YOU USED UP YOUR TIME.
>> I WANT TO ASK A QUESTION
THAT CAME UP.
ANSWER A QUESTION WITH
REGARD TO THE RESEARCH OF
MR. KUYPERS TESTIFIED RECORD
2422 TO 23 THAT HE DID THE
RESEARCH TO -- TWO NIGHTS
BEFORE THE LEE.
IT'S IN HIS NOTES 2269 AND
TESTIFIED ON DIRECT TO THE
STATE AT THE HEARING THAT HE
ADVISED MICHAEL OF THE THIS
AFTER HE DID THE RESEARCH.
NOT BEFORE.
HE SAID SO AT 2400ED A 2401
AS THE STATE SAYING THERE
WAS A RULING ON THE
PRESENTENCING MOTION WHEN
MICHAEL WAS FORCED TO DO A
PRO SE.
THERE WAS NO RULING THAT THE
JUDGE TOLD HIM TO SIT DOWN.
>> WE THANK YOU BOTH FOR
YOUR RESPONSIVENESS TO OUR
QUESTIONS AND YOU -- YOUR
PRESENTATION TO COURT.
WE'LL TAKE IT UNDER
ADVISEMENT.
THE COURT WILL STAND IN
RECESS FOR THIS DOCKET.
>> PLEASE RISE