The following is a real-time transcript taken as closed captioning during the oral argument proceedings, and as such, may contain errors. This service is provided solely for the purpose of assisting those with disabilities and should be used for no other purpose. These are not legal documents, and may not be used as legal authority. This transcript is not an official document of the Florida Supreme Court.
Corey Smith v. State of Florida
SC05-703
>>> ALL RISE.
THE NEXT CASE ON THE CALENDAR THIS MORNING IS SMITH v. STATE OF FLORIDA.
GOOD MORNING. MAY IT PLEASE THE COURT, MY NAME IS TERESA POOLER, I'M AN ATTORNEY FROM MIAMI. I WAS COURT APPOINTED TO REPRESENT COREY SMITH, WHO IS BEFORE THIS COURT ON AN APPEAL FROM TWO SENTENCES OF DEATH ARISING FROM A 17-COUNT INDICTMENT. THIS CASE WAS IN FRONT OF JUDGE SCOTT BURNSTEIN IN THE 11th JUDICIAL CIRCUIT. I'M HERE TO ASK THIS COURT TO REVERSE THIS CONVICTIONS AND REMAND THIS CASE FOR A NEW TRIAL. THERE ARE SEVERAL --
YOU HAVE A NUMBER OF ISSUES IN THIS CASE.
YES, MA'AM.
AND WITH YOUR TIME LIMITATIONS, WHICH OF THE ISSUES ARE YOU GOING TO CONCENTRATE ON?
WELL, I WAS GOING TO CONCENTRATE FIRST ON THE SECURITY ISSUES, SECOND ON HIS MOTHER'S COMMENTS TO THE JURY, AND THE COURT'S FAILURE TO STRIKE THE JURY PANEL. THE ISSUE OF HEARSAY OF THE POLICE REPORT, AND THE ISSUES PERTAINING TO THE LIMITATION ON CROSS EXAMINATION OF SOME OF THE WITNESS.
NOW THIS WAS, SO THERE -- YOUR FIRST ISSUE YOU WANT TO DO IS THE SECURITY IN THE COURT.
WELL, THAT'S THE ORDER I HAD THEM IN, FOR THIS MATTER.
JUST LOOK AT THIS IN A CONTEXT OF WHAT THIS INDICTMENT WAS ALL ABOUT. AND THIS WAS --
YES, MA'AM.
WITHOUT A DOUBT A BIG DRUG RING NAT WAS GOING ON IN MIAMI IN THE LIBERTY CITY AREA.
YES, MA'AM.
THE ALLEGATIONESS IN THE INDICTMENT ARE THAT THIS MAN HAD PEOPLE KILLED WHO WERE --
YES, MA'AM.
INTERFERING WITH HIS DRUG BUSINESS.
YES, MA'AM.
A LOT OF THE WITNESSES WERE GOING TO BE PEOPLE WHO WERE A PART OF THAT DRUG BUSINESS.
YES, MA'AM.
AND SO WHY SHOULDN'T THE COURT UNDER THOSE KIND OF CIRCUMSTANCES MADE THESE KIND OF SPECIAL SECURITY PROVISIONS?
WELL, MY ONLY -- MY BIGGEST CONCERN WITH THIS IS NOT WHAT HAPPENED AS THE TRIAL PROGRESSED BECAUSE AS YOU SEE WHEN YOU READ THE TRANSCRIPT, THERE WERE SOME ISSUES, THERE WERE SOME PEOPLE IN THE COURT THAT WERE A LITTLE SUSPECT. THERE WERE WITNESSES THAT, CLAIMED INTIMIDATION BECAUSE THEY RECOGNIZED MURDERS AND SO ON AND YES THAT ABSOLUTELY HAPPENED. THOSE ARE THE FACTS. THAT'S WHAT IT WAS. HOWEVER, ONE OF THE, ONE OF THE PROBLEMS WAS THAT THERE WAS A MAGNETOMETER. THERE'S A MAGNETOMETER IN THE JUSTICE BUILDING. THERE WAS A SECOND ONE SET UP. THIS ONE WAS SET UP --
ERANT THOSE KINDS OF THINGS DONE IN BUILDINGS ALL THE TIME NEW. IN THIS WORLD THAT WE LIVE IN NOW, YOU CAN GO THROUGH THE METDLETECTORS LINKINDS OF BUILDINGS SO WHAT MADE THIS ONE SPECIAL OR OUT OF THE ORD NAR.
-- ORDINARY.
WHAT MADE THIS ONE SPECIAL AND JUDGE BURNSTEIN BROUGHT THAT UP AND THEY GO THROUGH THAT IN AIRPORTS BUT THIS IS A JURY IN THE RICHARD BURNSTEIN BUILDING THE POINT I WAS TRYING TO MAKE IN MY BRIEF BUT SUBSEQUENTLY. WHAT THE COURTS NEED TO DO PERHAPS IS LOOK AT THESE ISSUES FROM THE POINT OF VIEW OF OO JURY AND WHAT DO THEY THINK WHEN THEY GO THROUGH NOT ONE BUT TWO METAL DETECTORS AND FACED WITH ARMED GUARDS AT THE METDLETECTORS. THERE IS SOME -- AND I DO HAVE TO SAY --
WHEN YOU SAY ARMED GUARDS ARE, THESE, WERE THEY LIKE DID THEY HAVE OOZIES.
NO MA'AM. I DON'T THINK THEY HAD OOZY.
WHEN YOU SAY ARMED GUARDS ARE YOU TAKING NORMAL COURTHOUSE SECURITY KIND OF PEOPLE?
> GENERALLY SPEAKING IN THE COURTHOUSE THIS IS WHAT I KNOW.
YOU SAID ARMED GUARDS AND SO THAT, THAT IMPLIES SOMETHING THAT'S MUCH MORE A SHOW OF FORCE THAN NORMAL SECURITY MEASURES.
OKAY. THE GUARDS THAT FOR EXAMPLE WHEN YOU GO INTO THE JUSTICE BUILDING ARE NOT ARMED. THEY ARE JUST, YOU KNOW, LADIES AND GENTLEMEN WHO ARE THERE. THESE GUARDS HAVE -- WERE POLICE OFFICERS IN UNIFORMS WITH SIDE ARMS FROM MY UNDERSTANDING WHAT THE RECORD REFLECTS SO THIS WAS DIFFERENT THAN THE ORDINARY GOING THROUGH THE --
ISN'T AS THIS SET UP, WASN'T THE INDICATION THAT IT WAS DONE FOR THE ENTIRE WIN WING OF THE BUILDING. IT WAS NOT JUST SET UP FOR THE ONE PERSON. WASN'T THERE ARE A 300 PERSON GROUP THAT CAME IN.
THERE WERE APPROXIMATELY 300 PEOPLE THAT CAME IN. THE JUDGE BECAUSE IT WAS NOT A VERY BIG COURTROOM AND NOT A VERY BIG AREA HAD TO TAKE THEM IN GROUPS OF 50 OR 52 PEOPLE AND WHAT THE COURT DID WAS THEY WENT THROUGH QUESTIONING WITH FIRST LIKE SAY THE FIRST 52 IN THE COURTROOM AND FOUND OBVIOUS ISSUES WHY THOSE PEOPLE WOULD NEED TO BE EXCUSED, HEALTH ISSUES, THINGS LIKE THAT WHY THEY COULDN'T SIT AND THE JUDGE WAS WHAT HE DID WAS ASK BOTH SIDES OF THE CAUSE CHALLENGES DO YOU AGREE SO WE DON'T NEED TO KEEP THESE PEOPLE HERE BEFORE THEY WENT INTO THE DEATH PENALTY AND SO ON RATHER THAN SPENDING A LOT OF TIME ON RATHER SEVERE ISSUES THEY TRIED TO GET --
EXCUSE ME. WASN'T THOUGH THE POINT THOUGH THAT THEY COULDN'T SCREEN ALL 300 AT ONE TIME AND THEY WERE DOING SOMETHING TO MAKE SURE THAT THE PEOPLE THAT DIDN'T GET INITIALLY SCREEN GOT SCREENED? DO THESE JURORS HAVE TO GO THROUGH TWO SCREENINGS.
YES, MA'AM. THEY WENT THROUGH THE ONE DOWNSTAIRS AND THEN UPSTAIRS TO THE 7th FLOOR WHEN YOU SAY, I'M TRYING TO RESPOND TO YOUR QUESTION,.
THAT'S WHAT I'M TRYING TO UNDERSTAND, I THOUGHT THERE WAS SOMETHING LIKE WHAT JUSTICE LEWIS WAS ASKING WHICH I DIDN'T HEAR YOU RESPONDING. TO WEREN'T THEY GENERALLY DOING THAT IN THAT PART OF THE COURTHOUSE?
IN THAT PART OF THE COURTHOUSE, IT IS A WING WITH TWO COURTROOMS IN T. ONE OF THE COURTROOMS WAS NOT IN SESSION. IT WAS JUST THIS COURTROOM THAT WAS IN SESSION. THERE WAS AN ADMINISTRATIVE OFFICE OF THE COURT BEHIND T. THAT'S T. YOU GO TO THE JUDGE'S CHAMBERS FROM BEHIND. YOU WALK IN THROUGH A DOUBLE SET OF DOORS. THERE WAS A CHAMBER -- THERE WAS A COURTROOM WITH JUDGE BURNSTEIN'S CASE, THE STATE OF FLORIDA v. COREY SMITH. THE MAGNETOMETER WAS SET -- I WENT THROUGH T. IT'S NOT IN THE RECORD BUT IT WAS SET UP RIGHT IN THE HALLWAY AND THE PEOPLE WENT INTO THE COURTROOM. THERE WAS NO OTHER TRIAL. THERE WAS NO OTHER --
WHEN YOU TALK -- YOU SAID EARLIER WE NEED TO TAKE THIS FROM THE JURORS' POINT OF VIEW. I'LL NOT SURE I AGREE WITH YOU BUT IF WE DID TAKE IT FROM THEIR POINT OF VIEW THEY DON'T KNOW THAT THERE'S NOT ANOTHER TRIAL GOING ON OR MAYBE THERE'S NOT A BREAK GOING ON OR HOW MANY OTHER COURTROOMS HAPPEN TO BE IN THAT WING.
THAT'S TRUE. THEY DON'T KNOW. AND I DON'T KNOW WHAT THE JURIES KNOW.
I GUESS THE, THE BOTTOM LINE ON IT IS THAT THIS TRIAL, WHICH IS, WAS A, YOU KNOW, GOT SO MANY VOLUMES --
5,000-SOMETHING PAGES.
INJUDGE MADE SO MANY EFFORTS TO TRY TO BALANCE. AND WAS THERE -- IF SOMEBODY HAD RAISED A CONCERN AND SAID, LISTEN I WANT THERE TO BE VOYEUR DIRE ON WHETHER THIS SUPREME COURT IS DIRECTED TO THIS TRIAL OR DOES THIS CREATE CONCERN WHETHER THIS DEFENDANT WAS GUILTY THAT CD'VE BEEN DUNNED WAS THAT ASKED FOR IT? IS THAT IN THE RECORD? WAS IT DONE.
JUDGE, I DON'T BELIEVE THAT WAS DONE.
SO YOU'RE NOT RAISING -- SO THERE'S NOT A POINT OF -- I DON'T SEE WHERE A REVERSIBLE ERROR HAS BEEN MADE ON THIS POINT ON THIS RECORD IN THIS RECORD.
THE ONLY POINTS THAT DID HAPPEN AND I WILL BE HONEST WITH YOU, I DID NOT MEMORIZE THE TRANSCRIPT IT WAS KIND OF LONG BUT THERE WAS, THERE WAS PARTS IN IT WHERE THE, THE ATTORNEYS DID SAY TO THE COURT JUDGE, YOU KNOW, WE NEED A HEARING ON THIS OR WE OBJECT TO THIS. THERE ARE, YOU KNOW, SIX GUARDS IN THE COURTROOM. THERE ARE GUARDS OUTSIDE. WE THE ATTORNEYS, THE DEFENSE COUNSEL WAS BEING WANDED IN FRONT OF THE, THE VENEER. AND SO ON AND THEY DID OBJECT TO IT. YOU KNOW, THE RECORD IS WHAT THE RECORD IS. AND --
BUT IT WASN'T JUST THE DEFENSE ATTORNEYS. I MEAN EVERYONE.
EVERYONE --
EVERYONE WAS BEING WANDED SO IT WASN'T LIKE THE COURT WAS PICKING OUT THE DEFENSE ATTORNEYS AND NO ONE ELSE.
NO. OF COURSE NOT. NO, OF COURSE NOT. THE COURT WAS NOT PICKING OUT THE DEFENSE ATTORNEYS.
AND THIS TRIAL COURT IN THE CONTEXT JUSTICE QUINCE WAS POINT OUTH, IN THE CONTEXT OF THE MURDER OF A JUDGE THAT HAD OCCURRED IN ATLANTA IN A COURTROOM. ISN'T THAT CORRECT?
YOUR HONOR, I THINK THIS TRIAL WAS BEFORE THAT. THIS TRIAL --
WAS IT.
YEAH. THIS TRIAL ENDED, I BELIEVE, IN LIKE DECEMBER OF 2005. AND IT'S BEEN, YOU KNOW TAKING QUITE A BIT OF TIME TO GET IT TO THIS POINT BECAUSE OF THE TRANSCRIPT AND SO ON OTHER ISSUES.
HOW LONG DID THIS VOYEUR DIRE TAKE?
THE VOYEUR DIRE I BELIEVE TOOK FOUR OR FIVE DAYS.
AND HOW LONG WADS THIS TRIAL.
THE TRIAL ENDED UP BEING -- WAS OVER A COURSE OF FIVE MONTHS. BUT WHAT HAPPENED ACTUALLY WAS THAT THERE WAS VARIOUS BREAKS THAT THE JUDGE TOOK. I THINK THE ACTUAL TESTIMONY TOOK A LITTLE OVER A MONTH, MAYBE ABOUT SIX WEEKS.
AND THE ENTIRE TRIAL WAS IN THE GURSTEIN BUILDING.
YEAH, THE ENTIRE TRIAL WAS IN THE GURSTEIN BUILDING.
THAT BUILDING HAS LOT OF PEOPLE IN IT EVERY DAY.
YES, IT DOES.
DID THEY HAVE THE SAME SPECIAL SECURITY -- WERE THE DEFENSE LAWYERS WANDED IN FRONT OF THE JURORS EVERY DAY.
I DON'T KNOW IF IT WAS EVERY DAY.
IT'S NOT IN THE RECORD.
I AM GOING OFF WHAT WAS IN THE RECORD WHICH IS WHAT THIS COURT WOULD SEE.
I GUESS YOU ARE MAKING A POINT THAT PERVASIVELY, THESE JURORS WERE, AND JURORS KNOW CERTAINLY IN A HIGH PROFILE CASE THERE ARE PRECAUTIONS TAKEN. I GUESS I WOULD, THERE WAS SOMETHING IN THE RECORD THAT SHOWED ME THAT THIS STARTED TO PUT IN THE JURORS' MINDS SOME PRE-ORDAINED PREJUDICE AGAINST THE DEFENDANT THAT WASN'T ADEQUATELY ADDRESSED I WOULD SHARE YOUR CONCERN BUT YOU KNOW YOU HAVE GOT A LOT OF POINTS HERE.
YES.
ARE YOU GOING -- THE ONE -- THERE WAS ONE POINT THAT CONCERNS ME AND MAYBE YOU COULD JUST JUMP TO IT IS WHAT YOU ATE. WHETHER THIS ISSUE OF DISCLOSING THAT THE WITNESS CARLOS WALKER WOULD TESTIFY INCONSISTENTLY WITH HIS DEPOSITION.
CORRECT. CORRECT.
YOU DIDN'T -- WERE YOU THINKING THAT THAT WAS ONE OF YOUR STRONG POINTS OR --
THAT'S NOT ONE OF MY STRONGER POINTS THAT I WAS THINKING OF BUT YA DO BELIEVE -- YOU KNOW, THE ISSUE THAT I LOOK AT IN THIS TRIAL AND I DON'T KNOW IF THE COURT WOULD LOOK AT THIS AS A WHOLE IS YOU KNOW THIS TRIAL WENT ON FOR A LONG TIME. AS JUSTICE QUINCE, ACCURATELY POINT OUT, THERE WERE A LOT OF CHARGES, 17-COUNT INDICTMENT, AND THIS WAS NOT, IF YOU PARDON MY EXPRESSION, SPITTING ON THE SIDEWALK. THESE WERE FIRST DEGREE MURDERS, CONSPIRACY TO COMMIT, RICO, TRAFFICKING AND DRUGS, THIS WAS A VERY, VERY SERIOUS, YOU KNOW, SET OF ALLEGATIONS HERE. AND THROUGHOUT THE COURSE OF THE TRIAL, THERE WERE SOME OF THESE ERRORS WHICH I ARGUED WERE ERRORS THAT OCCURRED, WHICH I BELIEVE THE STATE IN THEIR BRIEF NOT TO JUMP AHEAD BECAUSE I WILL TELL YOU WERE HARMLESS ERRORS. BUT YOU GET -- YOU KNOW, WHAT THE POINT I WAS GETTING TO, OR TRYING TO GET TO IS THAT, YOU KNOW, 17 OF THESE WITNESSES WERE CONVICTED FELONS. AND THE RECORD I BELIEVE ADD QTLY REFLECTS THAT MANY OF THEM WERE TESTIFYING BECAUSE THERE WAS SOMETHING IN IT FOR THEM. AND TO, TWO OF THE POINTS I MADE, WHICH WERE ACTUALLY I BELIEVE KIND OF THREE THINGS WHICH I MADE ACTUALLY KIND OF IN THE SAME VEIN WERE THE LIMITATION OF THE CROSS EXAMINATION OF TWO OF THE WITNESS. I AM NOT EVEN GOING TO GO INTO THE LIMITATION OF THE MEDICAL EXAMINER DR. LOU AND THAT IS THE, THAT IS AN ISSUE THAT I THINK IS IMPORTANT BECAUSE WHAT HAPPENED THERE WAS WITH, WITH WITNESS ANTHONY FAIL, ANTHONY FAIL WAS THE BOYFRIEND OF ONE OF THE WOMEN THAT WAS KILLED AND I BELIEVE IT WAS SUPPOSED TO HAPPEN WAS HE WAS SUPPOSED TO HAVE BEEN KILLED AND HE LET THE GIRL ANGELA WILSON DRIVE HIS CAR, AND SHE DROVE THE CAR AWAY AND THE PEEP THAT WERE SUPPOSED TO KILL HIM SHOT AT THE CAR NOT REALLY REALIZING SHE WAS IN IT. SO SHE WAS, YOU KNOW, BACK AT THE HOUSE WHERE HE WAS SUPPOSED TO BE STILL ALIVE AND SHE WAS KILLED. ANTHONY FAIL DID TESTIFY, AND THE COURT LIMITED THE CROSS EXAMINATION ABOUT THE ISSUE PERTAINING TO WHETHER OR NOT HE HAD ACTUALLY CONFESSED TO COMMITTING A HOMICIDE OF A SPECIFIC INDIVIDUAL. THAT INDIVIDUAL BEING CARLTON TANNER, WHOSE NAME COMING UP SEVERAL TIMES DURING THE COURSE OF THIS. HE WAS ONE OF THESE PEOPLE THAT WAS KILLED BY MR. FAIL AND PERHAPS BY ONE OF THE OTHER PEEP THAT WAS INVOLVED. -- PEOPLE THAT WAS INVOLVED. THE POINT THAT I WAS TRYING TO MAKE ON THIS AND THAT I WOULD LIKE TO MAKE ON THIS IS THAT I BELIEVE THE COURT WAS IN ERROR LIMITING THIS CROSS-EXAMINATION BECAUSE IT WAS IMPORTANT FOR THE JURY TO UNDERSTAND THE BIASES THAT THESE WITNESSES HAD. AND THIS BIAS WAS A PRETTY STRONG BIAS IN THAT HE HAD SAID ON HIS DEPOSITION I KILLED CARLTON TANNER. HE WAS NEVER CHARGED WITH THIS. AND THE COURT WOULD NOT LET DEFENSE INQUIRE INTO WERE YOU CHARGED WITH THIS OR NOT. YES, MA'AM?
WHAT DID THE JURY KNOW ABOUT MR. FAIL? AS I UNDERSTAND IT, THERE WAS ALL KINDS OF TESTIMONY THAT HE WAS SORT OF LIKE AN ENFORCER OR SOMEBODY FOR THIS, THIS DRUG RING.
YES.
AND THAT HE HAD SHOT AND BEAT UP AND DONE ALL KINDS OF THINGS TO A NUMBER OF PEOPLE.
YES.
SO THE JURY UNDERSTOOD.
RIGHT.
THAT THIS WAS NOT A, YOU KNOW, AVERAGE CITIZEN.
EXACTLY.
HE WASERALLYY A TERRIBLE PERSON.
RIGHT.
AND SO, YOU KNOW, OFTEN WE, WE, WHEN WE EXAMINE WITNESSES, YOU TALK ABOUT THE KINDS, THE NUMBER OF CRIMES THEY HAVELER COMMITTED AND THOSE KINDS OF THINGS -- THEY HAVE COMMITTED AND THOSE KINDS OF THINGS BUT WE DON'T NORMALLY GET INTO A LOT OF SPECIFICS ON THOSE TYPES OF THINGS SO WHY WOULD THIS BE DIFFERENT?
WELL, THIS WAS A STATE WITNESS AND HE WAS TESTIFYING FOR, FOR THE STATE OBVIOUSLY. SO THE THEORY THAT I BELIEVE THE DEFENSE BELOW WAS TRYING TO BRING UP AND DID IN FACT IN SIDE BAR YOU KNOW KIND OF RUN AROUND MENTION TO THE COURT WAS THAT, YOU KNOW, HERE IS ONE SPECIFIC -- WE KNOW HE'S A BAD GUY. OKAY. WE KNOW HE'S A BAD GIMPT WE'VE GOTTEN ALL THAT OUT BUT WE HAVE ONE SPECIFIC INSTANCE OF A HOMICIDE THAT HE SAID HE COMMITTED THAT HE SAID ON A DEPOSITION SWORN TO AND NOTHING'S HAPPENED. HE HASN'T BEEN CHARGED WITH T. THAT'S WHERE THEY WERE TRYING TO GO TO SHOW HIS BIAS. HERE'S A PERSON WHO, YOU KNOW, IS TESTIFYING FOR THE STATE IN THE MANNER -- AND HIS TESTIMONY WAS EXTREMELY DAMAGING TO MR. SMITH BECAUSE HE WAS GETTING INTO THE ISSUE THAT CONNECTED MR. SMITH WITH THE DEATH OF CYNTHIA BROWN. IN OTHER WORDS, I BELIEVE THAT HE WAS, HE TESTIFIED THAT MR. SMITH HAD TOLD HIM I HAVE TO GET RID OF THIS GIRL. I HAVE TO KILL THIS GIRL. SHE'S A WINS AGAINST ME AND SO ON AND SO FORTH. --
AND HOW MANY OTHER WITNESSES TESTIFIED TO THAT SAME INFORMATION?
SEVERAL.
THERE WAS AT LEAST ABOUT FOUR OF THEM.
THERE WERE SEVERAL WITNESSES THAT TESTIFIED TO THE INFORMATION ABOUT, YES. THEY WERE, AND THEY WERE ALSO, YOU KNOW, SIMILARLY SITUATE SAID AS, YOU KNOW THESE CONVICTED FELONS AND SO ON. SO THAT WOULD BE MY POINT AS TO THAT THAT THE JUDGE DID LIMIT THIS AND IT WAS AN AIR IN THIS PARTICULAR CASE, IN THIS PARTICULAR SITTUATION UNDER THESE CIRCUMSTANCES. THE OTHER ISSUE WHICH I FELT WAS IMPORTANT WAS INHEARSAY ISSUE ABOUT THE ADMISSION OF THE POLICE REPORT.
BUT NOW WASN'T THAT, I MEAN, THEY WENT THROUGH ITANE SIDE BAR, REDACTED, AND IT WENT TO THE QUESTION OF THE MOTIVE AND WHY THIS PERSON WOULD HAVE A POLICE REPORT AND WHY THE, THIS DEATH OCCURRED. WHY IS THAT A, A PROPER WAY TO DO IT? IT'S NOT COMING IN FOR THE TRUTH OF WHAT IS THERE BUT IT'S COMING IN FOR STATE OF MIND OF THE PERSON SO WHY WOULD THAT NOT BE.
WELL, THAT IS ABSOLUTELY CORRECT. I MEAN, I HAVE NO ARGUMENT WITH THAT AT L. THE STATE WANTED TO SHOW THAT MR. SMITH HAD MOTE TO HAVE KILL CYNTHIA BROWN AND THE WAY THEY INTENDED TO DO THAT WAS TO SHOW THAT HE KNEW WHETHER SHE WAS RIGHT OR WRONG, WHETHER SHE WAS MAKING IT UP OR NOT THAT SHE WAS GOING TO SAY I SAW HIM SHOOT DOWN MICK JOHNSON. THE PROBLEM WITH THE ADMISSION OF THE ENTIRE DOCUMENT, WHICH WAS OBJECTED TO FOR HEARSAY, AND I DON'T THINK THE OBJECTION BELOW WAS QUITE ACCURATE BECAUSE THE WHOLE DOCUMENT WAS NOT HEARSAY BUT THERE WERE PARTS OF IT THAT WERE ADMITTED THAT WERE AND THAT --
IF THAT WAS THE OBJECTION BELOW, NOW ISN'T THAT WHAT WE HAVE TO RULE ON? AND I MEAN ISN'T THAT WHAT YOU HAVE TO GO WITH? I MEAN, IF HE DIDN'T OBJECT ON SOME OTHER BASIS --
HE --
THEN THAT'S A DIFFERENT STORY.
HE OBJECTED ON THE BASIS OF HEARSAY. AND IN PART, HIS OBJECTION WAS PWHAT I'M ARGUING, IN PART OTHERWISE OBJECTION WAS CORRECT AND IN PART IT WAS NOT CORRECT BUT THE JUDGE OVERRULED IT, LET THEM REDACT PORTION TOFS AND A LOT OF THOSE ORTION PORTION HAD TO DO WITH, YOU KNOW, NAMES AND ADDRESSES OF WITNESSES AND THINGS LIKE THAT. I THINK THERE WERE SOME OF THE THOSE THINGS BUT WHEN YOU LOOK AT THE POLICE REPORT CHRBSH IS IN THE REPORT, -- RECORD, AS HAVING BEEN ADMITTED STATE EXHIBIT 133 TDOES TALK ABOUT THINGS THAT NOT JUST THE FACT THAT SHE IDENTIFIED THIS INDIVIDUAL.
WHAT'S THE PREJUDICE -- WHAT'S THE PREJITIAL BECAUSE YOU HAVE CONCEDED HER IDENTIFICATION OF HIM WAS NOT HEARSAY AND THE POLICE REPORT WAS NOT FOUND IN HIS HOUSE.
EXACTLY.
SO NORMALLY WHEN THE STATE IS ARGUING SOMETHING'S NOTS HEARSAY IT'S NOT ADMITTED FOR THE TRUTH IT'S LIKE THAT'S NOT THE CASE BUT THIS IS CLASICALLY NOT ADMITTED FOR THE TRUTH SO WHAT PART OF THE REPORT THAT CAME IN ARE YOU SAYING WAS OBJECTIONABLE?
I'M SAYING THE PARTS THAT PERTAIN TO HOW AFRAID SHE WAS OF THIS INDIVIDUAL. THAT SHE MOVED TO HOLLYWOOD WOOD BECAUSE SHE WAS AFRAID. THAT SHE DIDN'T WANT TO TESTIFY BECAUSE SHE WAS AFRAID. THOSE ARE THE PARTS THAT I'M OBJECTING TO. NOT THE FACT -- BECAUSE IT HAS -- THAT HAS NOTHING TO DO WITH COREY SMITH KNOWING --
BUT DID THE DEFENSE LAWYER BELOW, BECAUSE I THOUGHT THAT AGAIN THIS JUDGE LEANED OVER BACKWARDS TO SAY DO YOU WANT TO LIMITING INSTRUCTION WHAT DO YOU WANT REDACTED. WAS THAT -- WAS IT ASKED FOR FOR THERE TO BEFURCATE REDACTION AND THE, AND THAT WAS -- THAT WAS OVERALLED BY THE JUDGE?
I'M NOT QUITE SURE THAT I CAN ANSWER THAT QUESTION BASED ON WHAT WAS ON THE RECORD T. APPEARS --
BUT THE PROBLEM IS, IF, IF IT WASN'T --
I UNDERSTAND THE PROBLEM.
IF IT WASN'T PRESERVED ON THAT ISSUE AND THEN AT THE END THEY ASKED AFTER IT HAD ALL GONE IN THEY SAID I MEAN ONLY PART HAD GONE IN THEY SAID WE WANT IT ALL IN. DIDN'T THEY DO THAT?
THEY DID THAT EVERVEALLY.
WOULDN'T THAT BE A WAIVER ANYWAY IF THEY DIDN'T HAVE THE WHOLE THING GO ON.
ESSENTIALLY IT MIGHT BE A WAIVER. SO I'M NOT SURE WHY THEY, I'M NOT SURE WHY THEY DID THAT THOUGH. I THINK THAT WAS PART OF WELL IF PART OF IT'S GOING IN WE MIGHT AS WELL SEE IT IN THE ENTIRE CONTEXT EVEN THOUGH WE ARE ESSENTIALLY OBJECTING FROM IT GOING IN IN THE FIRST PLACE.
HOW MANY DAYS LATER DOES THAT OCCUR.
PROBABLY TEN DAYS. I THINK IT WAS TEN DAYS. AS I SAID, I CAN'T ACTUALLY RECALL AT THIS POINT. THE PARTS THAT I WOULD ARGUE THAT ARE PREJUDICIAL THE PARTS ABOUT FEAR AND THE PARTS ABOUT WHY SHE HAD MOVED AND SO ON. I THINK THIS WOULD BE PREJITIAL TO THE DEFENDANT BECAUSE THIS YOUNG WOMAN THAT WAS KILLED IS A VERY SYMPATHETIC CHARACTER, SYMPATHETIC YOUNG WOMAN ASINGLE MOTHER AYOUNG GIRL, SOMEONE WHO WAS TRYING TO DO THE RIGHT THING AND THE FACT THAT IT WAS PRESENTED TO THE JURY THAT SHE WAS AFRAID OF HIM I THINK MADE HIM LOOK JUST EXTREMELY WORSE THAN HE ALREADY WAS LOOKING IN FRONT OF THAT JURY.
YOU HAD MENTIONED IN ANSWER TO MY QUESTION ABOUT ISSUE 8 THE IMPRESSION I GOT WAS SO MUCH CAME IN HOW COULD YOU SAY ONE THING IS ACTUALLY HARMFUL AND IT'S LIKE SO OVERWHELMING. DID ANYONE, CERTAINLY NOT RAISE AN APPEAL MAKE AN ARGUMENT THAT ALL THESE KIDS SHOULD NOT BE JOINED TOGETHER? THAT THEY SHOULD BE TRIED SEPARATELY. THAT THESE WERE MURDERS AT DIFFERENT TIMES. THAT THERE -- WAS THAT, WAS THAT ISSUE MADE?
NOT TO MY KNOWLEDGE, JUDGE.
WELL, AGAIN, YOU'RE THE ONLY ONE THAD WOULD HAVE THE COMPLETE KNOWLEDGE.
I DON'T BELIEVE THAT IT WAS, YOUR HONOR. I BELIEVE THAT THESE WERE ALL JOINED. THERE WAS NO, NO KIND OF MOTION TO SEPARATE THEM OUT. THIS WAS TRIED ALONE FROM THE OTHER DEFENDANTS BECAUSE OF COURSE THERE WERE EIGHT OTHER DEFENDANTS INCLUDING ONE WHO THE PERSON WHO ACTUALLY MURDERED CYNTHIA BROWN WHO HAS NOT GONE TO TRIAL YET, THEY WERE SEVERED OUT ONLY BECAUSE MR. ASKED FOR A SPEEDY TRIAL SO YOU KNOW THAT'S WHY THEY WEREN'T ALL TRIED TOGETHER AND THOSE OTHER DEFENDANTS HAVE, YOU KNOW, SUBSEQUENTLY PLED OUT OR WHATEVER.
THIS CASE WAS TRIED AFTER THE FEDERAL COURT CASE.
YES, SIR, YES, SIR.
AND BUT THE FEDERAL COURT CASE WAS, DID IT COME BACK?
I DON'T KNOW, JUDGE. I'M SORRY. I DON'T KNOW.
WASN'T THERE A RESENTENCING ORDERED IN THE FEDERAL COURT CASE?
I BELIEVE THAT THERE WAS, YES.
YOU DON'T KNOW THE STAT SNS.
I'M NOT CLEAR ON THE STATUS OF THIS AT THIS POINT, NO, I'M NOT.
YOU HAD ALSO MENTIONED THAT YOU WANTED TO DISCUSS THE MEDICAL -- THE LIMITATION ON THE MEDICAL EXAMINER' TESTIMONY. NOW THIS IS THE -- THEY WANTED TO BRING OUT FROM THE MEDICAL EXAMINER THAT THE, THE, THIS ASPHYXIATION COULD'VE BEEN DONE DURING A FEDERAL ACT?
THE TRIAL JUDGE SAID NO GET YOUR OWN WITNESS WE ARE NOT GOING TO ALLOW YOU TO CROSS EXAMINE ON THAT.
DID HE SAY YOU COULD CALL ON HIM AS YOUR OWN.
THEY DIDN'T SAY THAT. THEY SAID GET YOUR OWN WITNESS, AS I RECALL.
WASN'T HE IN FACT QUESTIONED ABOUT THAT.
I'M SORRY I DIDN'T HEAR THE QUESTION.
HE WAS QUESTIONED. ABOUT WHETHER OR NOT --
SHE WAS QUESTIONED --
THAT THIS PARTICULAR VICTIM COULD'VE DIED UNDER THOSE CIRCUMSTANCES.
SHE WAS QUESTIONED I BELIEVE ABOUT THE VARIOUS WAYS SOMEONE COULD ASPHYXIATE OTHER THAN HANDS BEHIND THEIR THROATS INCLUDING FALLING DOWN BEHIND A REFRIGERATOR AND HAVING SOMEONE LAY ON TOP OF THEM. I DON'T BELIEVE THE COURT WAS -- THE DEFENSE WAS ALLOWED TO GO INTO THE WHOLE ACT OF YOU KNOW PEOPLE WHO GET MORE SEXUAL PLEASURE OUT OF ASPHYXIATING THEIR PARTNER IN TERMS OF HOW THAT WOULD'VE AFFECTED THEIR CAUSE OF DEATH. I DON'T BELIEVE THEY WERE ALLOWED TO GO INTO THAT. I THINK THEY WERE ALLOWED TO -- I UNDERSTAND WHAT THEY MENTIONED BELOW WAS THEY WANTED TO USE THAT AS SOME KIND OF SYNDROME OR ALTERNATIVE CAUSE OF DEATH BECAUSE OF A KIND OF FIT IN WITH THE OTHER CIRCUMSTANCES. IT WAS, IT WAS A CHEESY MOTEL AND YOU KNOW OKEECHOBEE ROAD OR SOMETHING IN MIAMI THAT SHE WAS FOUND IN. IT WAS, YOU KNOW, SHE WAS WITH HER BOYFRIEND. IT WAS SOME EVIDENCE OF DRUG PLAY. THERE WAS A MIRROR.
THERE WAS NO OTHER EVIDENCE OF SEXUAL ACTIVITY, WAS THERE? WAS THERE EVIDENCE OF SEXUAL ACTIVITY IN THE ROOM?
I BELIEVE THAT THERE WAS EVIDENCE THAT SHE HAD HAD SEXED WITH HER BHOIF. -- BOYFRIEND. CHAS RAY DAVE SNOOS I BELIEVE THAT THERE WAS.
I THOUGHT THERE WAS NO SEMEN FOUND SHE WAS FOUND WITH ALL HER CLOTHES ON, THERE WAS NO EVIDENCE THAT THE BED SHEETS WERE UNDONE OR ANYTHING LIKE THAT THAT WOULD INDICATE ANY SEXUAL ACTIVITY IN THE ROOM BEFORE SHE DIED.
WELL SHE WAS FOUND AS I RECALL WITH THE BED SHEETS PULLED TUPE HER CHIN WITH HER HANDS OUTSIDE OF IT AS IF WHOEVER HAD KILLED HER HAD, YOU KNOW, STRAIGHTENED HER OUT AND FIXED HER UP. I DON'T RECALL WHETHER THERE WAS EVIDENCE OF SEMEN IN HER VAGINAL VULVA I DON'T RECALL EVIDENCE --
DON'T YOU THINK THAT'S AN IMPORTANT ISSUE. IF YOU'RE GOING TO TRY TO CROSS-EXAMINE SOMEBODY, ABOUT BEING STRANGLED DURING THE COURSE OF A SEXUAL ACTIVITY, ISN'T IT IMPORTANT WHETHER OR NOT THERE'S ANY OTHER EVIDENCE OF SEXUAL ACTIVITY?
WELL, I THINK WHAT THEY TRIED TO BRING OUT WAS THE EVIDENCE OF THE FACT THAT A MIRROR HAD BEEN TAKEN DOWN OFF THE WALL AND AWAS PUT NEXT TO THE BED AND SO ON. I MEAN THE THEORY I SUPPOSE COULD BE WAS ALL THIS HAPPENED BEFORE THE SEXUAL ACTIVITY OCCURRED.
THAT IS CONSISTENT WITH I'M GOING TO LET HER THINK WE'RE ABOUT TO HAVE SOME SEXUAL ACTIVITY AND ACTUALLY DOESN'T TAKE PLACE.
I AGREE WITH YOU THAT THERE.
YOU ARE WELL INTO YOUR REBUTTAL IF YOU'D LIKE TO SAVE THE TIME YOU'VE GOT SIX MINUTES.
NO IF THERE ARE NO FURTHER QUESTIONS.
NO. SAVE YOUR TIME.
THANK YOU.
GOOD MORNING, YOUR HONOR. MAY IT PLEASE THE COURT. I'LL CAROL DITTMAR. FIRST WITH REGARD TO THE SECURITY MEASURES I THINK IT'S IMPORTANT TO LOOK AT THE TYPES OF MEASURES IMPOSED AND TO RECOGNIZE THAT ESPECIALLY IN FEDERAL COURTS WHERE THERE IS A LOT OF CASE LAW ON THIS ISSUE BECAUSE THEY SEE A LOT OF THESE REALLY BIG TRIALS, THE FEDERAL COURTS HAVE MADE A CLEAR DISTINCTION THE UNITED STATES SUPREME COURT HAS MADE A CLEAR DISTINCTION BETWEEN SECURITY MEASURES THAT CREATE INHERENT PREJUDICE TO THE DEFENSE AS WELL AS BEING VISUALLY SHACKLED OR HAVE AGSTUN BELT ASTUN BELT VISIBLE TO THE JURY THOSE TYPES OF ISSUES WHERE THEY SAY WHERE THERE'S INHERENT PREJUDICE THEN THE TRIAL COURT MUST MAKE SPECIFIC FINDINGS OF NECESSITY.
DIDN'T HE IN FACT HAVE A STUN GUN?
HE HAD A STUN GUN IS WHAT I MEANT TO SAY. HE DID HAVE A STUN BELT. THE TRIAL COURT REPEATEDLY MADE THE FINDING THAT IN NO WAS IT VISIBLE TO THE JURY. THE JURY COULD NOT HAVE POSSIBLY SEEN THE STUN BELT. SO IF THE JURY COULDN'T HAVE SEEN IT IT COULDN'T BE PREJUDICE IF THEY COULDN'T SEE THE STUN BELT.
WHAT ABOUT THE ISSUE OF WHO WAS REQUIRED TO SHOW A PHOTO I.D.? AND ISN'T SHOWING THE PHOTO I.D. BECAUSE THAT WOULD LOSE CERTAIN PEOPLE CONSTITUTE A PARTIAL CLOSURE OF THE COURTROOM? IN SOME INSTANCES THIS HASN'T REALLY BEEN PRESENTED AS A CLOSURE OF THE CASE. HE DID HAVE A PUBLIC TRIAL. THERE WERE SPECIFIC INDIVIDUALS THAT AS THE CASE WENT ON WERE INCLUDED BECAUSE OF THE SPECIFIC INCIDENTS HAPPENING IN THE COURT SO THEY --
WHO WAS REQUIRED TO SHOW PHOTO I.D.s.
I DON'T KNOW THAT THE RECORD IS REALLY CLEAR ON WHO EXACTLY -- AT WHAT POINT AND WHEN THEY STARTED SHOWING THE IDENTIFICATION. AT ONE POINT LATER IN THE TRIAL, THERE WAS AN INCIDENT WHERE THE DEFENSE AGREED AND THE STATE AGRAEED AND THE JUDGE DIRECTED THAT A CAMERA BE PLACED OVER THE SECOND MAG SO THAT THEY COULD GET CAMERA PHOTOGRAPHS SO THEY COULD GET THE FACES OF PEOPLE ENTERING THE COURTROOM. AND THAT WAS AGREED TO ON THE RECORD AND THE JUDGE DIRECTED THAT BUT THE JUDGE WAS COMPLAINING OF SECURITY THINGS GOING OFF AND ON DURING THE TRIAL.
WASN'T THERE AN INCIDENT WHERE SOMEONE SAID THAT ONE OF THE PEOPLE THAT WERE LIKE THE ENFORCERS FOR THIS GROUP --
YES.
WAS IN THE COURTROOM AND WAS ASKING A QUESTION ABOUT BEING THERE TO INTIMIDATE WITNESSES OR SOMETHING.
ACTUALLY THERE WAS AN INCIDENT THAT CAME UP AFTER ONE OF THE INMATE WITNESS HAD TESTIFIED AND THIS WAS ON A THURSDAY AND THE WAY THIS TRIAL WAS RUN EVERY FRIDAY PRETTY MUCH THEY TOOK OFF SO THE ATTORNEYS COULD CATCH UP WITH WHAT THEY WERE DOING AND PREPARING SO ON FRIDAYS THEY DIDN'T HAVE COURT. IT WASN'T UNTIL THE FOLLOWING MONDAY WHEN THE RECORD STARTS UP AGAIN THAT THERE A LENGTHY DISCUSSION ON THE RECORD ABOUT THIS INCIDENT THAT HAD TAKEN PLACE WHERE ONE OF THE INMATE WITNESSES SAID HE HAD LEFT THE COURTROOM HAD NOTICED SOMEBODY IN THE GALLERY AND THE, THE SPECTATOR SECTION WHO HE RECOGNIZED TO BE A HIRED KILLER WHO WAS NOT ACTUALLY CONNECTED WITH THIS CASE, WAS NOT CHARGED IN THE ININDICTMENT, HIS NAME DOESN'T COME UP AT ALL WITH RELATION TO ANYTHING WITH THE JOHN DOUGH ORGANIZATION. BUT THAT INDIVIDUAL BECAUSE THERE WERE TWO INMATES THAT HAD, HAD COMPLAINED TO THE STATE THAT THEY WERE VERY INTIMIDATED ABOUT SEEING THIS GUY. AND THERE WAS ALSO, IT WAS ALSO BROUGHT TO THE JUDGE'S ATTENTION THAT THERE WERE SPECTATORS IN THE COURTROOM DISCUSSING THE FACT THAT THE DEFENDANT AT ONE POINT HAD LEANED BACK WHEN ONE OF THE INMATE WITNESS WAS TESTIFYING AND ACCORDING TO WHAT WAS RELATED TO THE JUDGE WAS USING HIS HAND POINTING AT LIKE A GUN BEHIND HIS HEAD. AND THE PERSON SITTING DIRECTLY BEHIND HIM WAS THIS GENTLEMAN THAT HAD BEEN IDENTIFIED AS BEING, A HIRED KILLER. AND WHAT WAS, YOU KNOW, WHAT WAS PUT ON THE RECORD WAS THAT BY THIS TIME, BY MONDAY MORNING, THE STATE ATTORNEY'S OFFICE HAD BEEN ABLE TO TO GET WITH LAW ENFORCEMENT. THEY HAD SPECIFICALLY IDENTIFIED WHO THIS INDIVIDUAL WAS AND THEY AGREED WITH THE ASSESSMENT THAT HE DID HAVE A, A TRACK RECORD OF AT LEAST BEING SUSPECTED AS A HIRED KILLER. I DON'T KNOW IF HE HAD CONVICTIONS OR WHAT EXACTLY HIS RECORD WAS BUT THEY WERE FAMILIAR WITH THAT BEING THE ISSUE AND THIS WAS ONE OF THE GENTLEMAN THAT WAS IDENTIFIED AND WAS EXCLUDED.
SO THERE WAS NO GENERAL PHOTO I.D. OF --
APPARENTLY AT ONE POINT THEY WERE ASKING FOR IDENTIFICATIONS OF PEOPLE COMING IN, AND WHEN I SAY APPARENTLY, WHAT HAPPENED WAS ONE OF THE PROSECUTORS CAME IN AND SAID THEY WANTED THE COURT TO BE AWARE THAT THERE WERE A COUPLE OF BINSSS THAT THE STATE -- WITNESSES THAT THE STATE HAD WHO MIGHT NOT HAVE STATE FURNISHED IDENTIFICATION AND THAT'S WHEN IT'S MENTIONED ON THE RECORD TO MAKE SURE --
I GUESS I -- WERE THE JURORS BEING SUBJECTED TO PHOTO SOMETHING ELSE? OR IS THAT NOT ALSO ON THE RECORD?
IT DOESN'T APPEAR THAT THE JURORS WERE BEING REQUESTED TO PROVIDE PHOTO IDENTIFICATION. NOW THEY WERE BEING WANDED AND THEIR POSSESSIONS WERE BEING SEARCHED.
O GIVE A PICTURE FROM WHAT THE RECORD SHOWS. THEY GO IN THE BUILDING. ARE THEY -- DO THEY GO THROUGH AN INITIAL SCREENING DOWNSTAIRS.
THAT'S MY IMPRESSION IS JUST LIKE, JUST LIKE WITH THIS COURT WANY COURT THAT YOU GO INTO PRETTY MUCH IN THE STATE NOW YOU ARE GOING TO, AS YOU ENTER THE COURTROOM ORIGINALLY, YOU ARE TO GO THROUGH SECURITY.
YOU MEAN INTO THE COURT HOUSE?
INTO THE COURT HOUSE.
AND THEN THEY GO --.
UP ON THE 17th FLOOR.
BUT WHAT WAS THE THING THAT THEY WERE MAGNETOMETER FOR THE ENTIRE SIDE OF THE BUILDING AND WAS THERE THEN A, FOR THAT SIDE OF THE BUILDING, WAS THERE A SECOND SCREENING IN OTHER WORDS?
APPARENTLY ONCE THEY GOT UP TO THE SECOND FLOOR WITH THIS COURT, THIS PARTICULAR COURT WAS UP ON THE 7th FLOOR. ONCE THEY GOT UP ON THE 7th FLOOR, THERE WAS A MAG IN THE WAY THAT THE JUDGE DESCRIBES IT IN THE RECORD, HE SAYS IT'S HALF OF THIS FLOOR IS CORDONED OFF FOR THIS SECOND MAG AND THAT THERE IS ALSO INDIVIDUALS GOING TO THE COURT ADMINISTRATORS OFFICE.
I TAKE IT PEOPLE CAME UP THE ESCALATOR THERE IN THE BUILDING? IS THAT REFLECTED?
YOU KNOW, I KNOW THE APPELLATE BRIEF SAYS SOMETHING ABOUT THE ESCALLATOR. I KNOW MS. POOLSER MORE FAMILIAR WITH THE COURTHOUSE THAN I AM SO I DON'T KNOW IF THE ELEVATORS, THE ESCALATORS OR HOW THEY WOULD GET UP THERE.
THAT WOULD BE THE NORMAL WAY TO GET UP AND THEN THERE ARE TWO COURTROOMS ON THE FLOOR.
YES, IT WAS ALSO A COURTROOM, ANOTHER COURTROOM ON THE SAME FLOOR.
SO WHAT WOULD THE -- THERE WAS ALSO CONSTRUCTION, CONSTRUCTION ON THAT FLOOR GOING ON AS THEY TALK ABOUT THROUGHOUT THE THING. SO THERE MAY BE HAVE, THE POINT IS THAT THIS WAS NOT CUSTOMIZED FOR THIS TRIAL.
IS THAT WHAT YOUR POINT IS?
WELL I ACTUALLY DON'T KNOW IF IT WAS OR WASN'T.
OKAY.
THE RECORD DOESN'T SHOW THAT.
THE RECORD DOESN'T SHOW THAT. WHAT IS THE ISSUE ABOUT -- WERE PEOPLE WANDED IN FRONT OF THE JURY? WHAT'S THAT ABOUT?
I THINK EVERYBODY THAT WAS COMING IN WAS WANDED IN ADDITION TO BEING, JUST --
AS THEY CAME INTO THE SECOND. JUST AS THEY ARE COME NOTHING TO THE COURTROOM.
NOT THE JUDGE --
I THINK IT IS PART OF THE SECOND MAG THAT IT IS PART OF THE ENTRANCE.
BEFORE THEY ENTER THE COURTROOM.
NOW LET ME ASK YOU A QUESTION. DID DEFENSE COUNCIL COUNSEL EVER REQUEST A HEARING TO DISCUSS ALL OF THE SECURITY MEASURES?
I MEAN IT'S TYPICAL PARTICULARLY IN A HIGH PROFILE CASE AND I THINK GOOD PRUDENT BEST PRACTICE FOR THE JUDGE TO SIT DOWN WITH BOTH COUNSEL IF IT'S A TYPICAL PROCEDURES TO LET THEM KNOW WHAT'S GOING ON WITHOUT COMPROMISING SECURITY. WHAT HAPPENED HERE?
THERE WERE SEVERAL TIMES IT WAS MENTIONED DURING JURY SELECTION WHEN THE SECOND MAG WAS SET UP, THE DEFENSE MENTIONED THE COURT IN THE FACT THAT EVERYBODY, THE DEFENSE ATTORNEYS WERE HAVING TO GO THROUGH THE MAG AND THE JURORS AND THE COURT AT THAT POINT SAID WELL YOU KNOW THAT'S REALLY SOMETHING YOU CAN TAKE UP WITH COURT LIAISON BECAUSE THEIR PUTTING THOSE THINGS IN PLACE. THERE WAS NOT A REQUEST AT THAT TIME. FOR A SPECIFIC INQUIRY OR FINDINGS. THAT WAS MENTIONED WHEN JULIAN MITCHELL WAS CALLED, THE EARLY WITNESS CALLED WHEN HE WAS CALLED IN TO TESTIFY HE ENTERED COURT AND HE WAS AN INMATE AT THE TIME AT THE DADE COUNTY JAIL. HE HAD ON THE RED INMATE JUMP SUIT HE WAS SHACKLED HE WASESH ESTCORTED IN WITH ARMED GUARDS. SAID INDEFENSE OBJECTED AT THAT POINT AND SAID YOU KNOW WE OBJECT TO THIS -- ALL THE THEATRICS AND PARADE OF BRINGING THIS MAN IN AND YOU KNOW IT LOOKS BAD FOR MY CLIENT THE JURY'S GOING TO THINK. HIS PRESUMPTION OF INNOCENCE IS ON. THE DEFENSE COUNCIL SAID I THINK WE SHOULD HAVE A HEARING AS TO WHY THESE SECURITY MEASURES ARE BEING TAKEN. PEOPLE ARE BEING WANDED. BELONGINGS ARE BEING SEARCHED AND I THINK WE NEED TO TAKE EVIDENCE. THE COURT SAID OKAY --
HOW FAR INTO THE TRIAL WERE WE?
JULIAN MITCHELL WAS AN EARLY WITNESS --
BUT THE JURY HAD ALREADY BEEN SELECTED, OPENING STATEMENTS HAD ALREADY BEEN MADE AND WITNESSES HAD BEEN PRESENTED.
YES AND HE WASN'T THE FIRST WITNESS. THIS IS VOLSUME 37 IN THE TRIAL. AND AT THAT POINT, THE TRIAL JUDGE SAID WHEN WE TAKE THE NEXT BREAK, WHEN WE TAKE THE LUNCH BREAK WE WILL ADDRESS THIS AND HAVING A HEARING. COREY SMITH DIRECTING THE MURDERS OCCUR EVEN WHILE COREY SMITH WAS IN JAIL FOR DOMINIC JOHNSON MURDER. HE GOT RELIEVED OF THE JOHNSON TRIAL WHEN CYNTHIA BROWN WAS KILLED AND THAT HIT WAS DIRECTED AND THAT WAS THE TESTIMONY THE JURY HEARD WHICH SERVED AS THE EVIDENTIARY HEARING BECAUSE AFTER THAT THE COURT DOES GO BACK ON THE RECORD AND SAYS YOU KNOW I CAN MAKE FINDINGS NOW I'VE HEARD THIS TESTIMONY ABOUT THE DANGERS AND THE MAN WAS INTERFERING WITH JUSTICE AND PUTTING OIT THIS -- OUT THIS INFORMATION AND I THINK THAT SATISFIED WHAT THE COURT NEEDED TO HEAR AND AGAIN WITH THESE TYPES OF MEASURES WITH FEDERAL LAW YOU DON'T HAVE TO HAVE THE FINDINGS OF NECESSITY THAT YOU DO WHEN YOU HAVE INHERENTLY PREJUDICIAL MATTERS. SO WE DO HAVE THE JUDGE HEARING TESTIMONY. BUT THE SWORN TESTIMONY HE HAD JUST HEARD. AND I AM SATISFIED THE MEASURES ARE NECESSARY. MAKING FINDINGS. THERE ARE AFTER THAT THAT IS BEFORE THE WHOLE INCIDENT WITH THE FINGER AND THERE WERE SEVERAL OTHER TIMES WHEN THE PARTIES APPROACHED THE COURT TO PUT ON THE RECORD THAT PERSONNEL FROM THE STATE ATTORNEY'S OFFICE HAD BEEN THREATENED. THERE WERE OTHER, OTHER FAMILY MEMBERS FROM THE VICTIMS THAT WERE THREATENED AND THOSE ARE COMMENTS MADE THROUGHOUT THE TRIAL THAT ARE PUT ON THE RECORD. THOSE ARE ALL AFTER THE FACT. AND THERE REALLY, AT ONE POINT, THE ONLY OTHER TIME THAT THERE IS EVEN A SUGGESTION THAT THE JUDGE NEEDED TO TAKE EVIDENCE WAS WHEN THE, THE INCIDENT CAME UP ABOUT THE FINGER POINTING LOOKING LIKE A GUN. AND THE DEFENSE CHALLENGED THE DEFENDANT CHALLENGED THAT PERSONALLY AND SAID I WANT TO KNOW WHO'S SAYING THAT. ALL I WAS DOING WAS SCRATCHING MY HEAD. I WASN'T DOING THAT. FEDERAL COURTHOUSES ARE MORE SECURE THAN STATE COURTHOUSES. IT'S NORMATIVE THAT THERE ARE ALTERNATIVE ENTRANCES FOR STATE ATTORNEY, PD, AND OTHER JUDGES TO GET ACCESS TO THE COURT WHICH WOULD PROVIDE A MEANS TO NECESSITY THE SECOND MAGNOMETER IN THESE OTHER PROCEDURES. IS THAT THE ONLY RECORD IN THIS CASE. I KNOW THERE WERE ALTERNATIVE WAYS, THE JUDGE IN THIS POINTS THAT THERE WAS A TIME OUT IN THE HALLWAY WHEN THE JURY OBSERVED THE DEFENDANT VISIBLY HANDCUFFED BECAUSE HE WAS BEING TRANSPORTED THROUGH THE HALLS AND THAT CAME TO THE JUDGE'S ATTENTION AND THE JUDGE IMMEDIATELY WAS VERY CONCERNED ABOUT THAT, TOOK IMMEDIATE ACTION TO ENSURE AND HE TALKED TO EVERYBODY ABOUT WELL WE ARE GOING TO TAKE PEOPLE OUT THIS WAY AND GO OUT THAT WAY.
SOME COURTHOUSES DON'T HAVE SEPARATION BETWEEN PARTIES AND LITIGANTS AND PUBLIC AND WHATEVER S. THAT THE CASE HERE?
I'M NOT SURE FROM THIS RECORD.
THE OLDER COURTHOUSES DIDN'T, DID NOT SEPARATE AS THEY DO NOW.
THAT ISN'T CLEAR. MADE CLEAR REALLY IN THE DISCUSSIONS THAT TOOK PLACE HERE ABOUT THE, THE SECURITY MEASURES. BUT CLEARLY NONE OF THE, NONE OF THE MEASURES THAT WERE PUT IN PLACE CAN REALLY REFLECT NEGATIVELY ON THE DEFENDANT BECAUSE THEY'RE NOT INHERENTLY PREJUDICE. THEY'RE, A NUMBER OF CASES WHERE FEDERAL COURTS IN FACT TAKE MUCH MORE DRASTIC MEASURES BUT THIS JUDGE WAS VERY CONCERNED HE WANTED TO ENSURE THAT THE PUBLIC TRIAL HE AT TIMES ASKED THE PARTIES TO RESEARCH WHAT ARE MY OPTIONS IN CLOSING? CAN I LIMIT THE PEOPLE THAT ARE COMING IN? WHAT CAN WE DO ABOUT IT? SO IT WAS AN ISSUE THAT KEPT RECURRING THROUGHOUT THE TRIAL AND I THINK THE JUDGE DID MAKE A DETERMINED EFFORT TO TRY AND BALANCE ALL OF THE INTERESTS OF EVERY PARTY AND TRIED TO ENSURE THAT THE DEFENDANT WAS NOT DEPRIVED OF A FAIR TRIAL IN BUTTING THESE MEASURES INN INTO PLACE AND CERTAINLY DID NOT NO MORE THAN WAS NER SAES.
CAN YOU ADDRESS THE ISSUE THAT I HAD BROUGHT UP.
CERTAINLY. CARLOS WALKER?
YES. IS THERE, HE HAD TESTIFIED IN THE DEPOSITION THAT MR. SMITH WAS NOT INVOLVED IN THIS MURDER, CORRECT.
WELL, WHAT HE HAD TESTIFIED IN HIS DEPOSITION WAS WITH REGARD TO STATEMENTS THAT HE WAS AWARE THAT COREY SMITH HAD MADE REGARDING THE CYNTHIA BROWN MURDER. AND IN THIS DEPOSITION, HE DENIED KNOWLEDGE OF THOSE STATEMENTS.
ALL RIGHT. AND THAT WAS UNDER OATH.
THAT WAS UNDER OATH, YES.
AND NOW HE COMES TO TESTIFY.
WELL, ACTUALLY BEFORE, I'M SORRY TO INTERRUPT YOU, BUT IT IS IMPORTANT TO REMEMBER THAT BEFORE THAT DEPOSITION, OF COURSE, HE HAD GIVEN A NUMBER OF SWORN STATEMENTS WHICH DID IMPLICATE COREY SMITH.
RIGHT.
AND HE ALSO,.
IN HIS DEPOSITION.
RIGHT.
THAT'S CORRECT.
HE NOW COMES TO TRIAL TO TESTIFY AND IS IT STATE AWARE BEFORE THEY PUT HIM ON THE STAND THAT HE WAS GOING TO TESTIFY INCONSISTENTLY WITH HIS DEPOSITION? THAT HE HAD NOW REAFFIRMED HIS INITIAL SWORN STATEMENT?
THAT QUESTION WAS NEVER ASKED BELOW SO THAT'S NOT REALLY DEVELOPED IN THIS RECORD EITHER. WHAT HAPPENED IS HE, HE IS CALLED TO TESTIFY ON DIRECT EXAMINE. HE PROVIDES ALL THE TESTIMONY THAT HE PROVIDES ON DIRECT EXAM. PART OF WHICH IS SAYING HE RECALLS NOW AND I CAN THIS IS THE MOST DAMAGING THING FROM THIS PARTICULAR WITNESS, OBVIOUSLY MUCH OF WHAT HE SAID WAS CUMULATIVE TO OTHER WITNESSES. BUT HE SAYS THAT HE HEARD COREY SMITH DIRECT CHAS DAVIS, WHO WAS THE BOYFRIEND OF CYNTHIA, CYNTHIA BROWN THAT KILLED CYNTHIA BROWN DAVIS DIRECTED DAVE TOOS KILL HER BY SMOTHERING HER OR STRANGLING HER WITHOUT BULLETS WITHOUT A GUN. THAT STATEMENT.
I ASKED YOU DID THE STATE KNOW ABOUT THE CHANGE IN TESTIMONY. I WOULD IMAGINE, AND I THINK IT'S DEVELOPED THAT THE STATE WASN'T ABOUT TO PUT ON THIS WITNESS WITHOUT KNOWING WHAT HIS CURRENT TESTIMONY IS?
WELL, I THINK THAT THE STATE. WHENEVER YOU HAVE AN INMATE WITNESS WHO HAS MADE INCONSISTENT STATEMENTS PRIOR TO TRIAL, I'M NOT SURE THE STATE EVER REALLY HAS A GREAT DEAL OF CONFIDENCE --
SO YOU ARE SAYING IF WE LOOK AT THIS RECORD WE DON'T KNOW AT THIS POINT WHETHER THIS ASSISTANT STATE ATTORNEY, THIS PROSECUTOR THAT'S PROSECUTING THIS SEVERAL-MONTH MURDER CASE WITH SEVERAL MURDERS. DIDN'T KNOW -- DIDN'T PUT CARLOS WALKER ON DIDN'T KNOW WHETHER HE WAS GOING TO TESTIFY CONSISTENTLY WITH HIS DEPOSITION OR GO BACK TO HIS SWORN STATEMENT?
WELL, CARLOS WALKER HAD A LOT OF INFORMATION ABOUT A LOT OF CRIMES OTHER THAN THIS ONE STATEMENT. AND HIS DEPOSITION HE HAD TALKED ALL ABOUT THE DRUG HE HAD BEEN PART OF JOHN DOUGH. HE KNEW ABOUT THE DRUGS AND HOW THEY WERE SOLD SO HE HAD A LOT OF INFORMATION BEYOND JUST THIS ONE STATEMENT.
ALL RIGHT. SO IT'S NOT -- HE STARTS TO TALK ABOUT THIS. THE. THE DEFENSE ATTORNEY DOESN'T OJT.
DOES NOT OBJECT.
WHAT HAPPENS?
WHAT HAPPENS IS HE GIVES THE INCRIMINATING TESTIMONY. WHEN HE, IT'S TIME FOR CROSS EXAMINATION, THE DEFENSE COUNSEL GETS UP ON CROSS-EXAMINATION, ACTUALLY ASKED TO APPROACH THE BENCH AND TAMENT REQUESTED A MISTRIAL AND SAYS, JUDGE, I'M MAKE AGMOTION FOR MISTRIAL BECAUSE WHAT, WHAT THE JURY HAS NOW HEARD THIS MAN IS A PERJURE. HE ADMITS BEING A PERJURE. HE'S MADE INCONSISTENT STATEMENTS UNDER OATH HE'S HERE TODAY SAYING SOMETHING THAT HE DENIED IN HIS DEPOSITION. IN HIS SWORN DEPOSITION AND THE JUDGE SAYS THAT'S WHY WE HAVE IMPEACHMENT YOU HAVE HIS SWORN DEPOSITION YOU CAN BRING THAT OUT TO THE JURY. THAT'S NOT A BASIS FOR MISTRIAL. SO THAT WAS THE ARGUMENT PRESENTBED LOW IT WAS REALLY MORE LIKE A DUE PROCESS ALREADY.
NOT ZPRG RICHARDSON.
DID NOT ASK FOR RICHARDSON.
NOT SAYING THAT WE'RE, THAT THIS IS THE STATE KNEW ABOUT THIS AND DIDN'T DISCLOSE IT. THAT'S NOT --
WELL THEY MAKE THE COMMENT. THE CLOSEST THEY GET IS THEY MAKE THE COMMENT ABOUT WE SHOULD'VE -- WE SHOULD'VE BEEN NOTIFIED. THEY DO SAY WE SHOULD'VE BEEN NOTIFIED THAT THEY WERE GOING TO PRESENT A PERJURE. BUT OBVIOUSLY THEY HAD --
WOULD YOU AGREE, MS. DITTMAR BECAUSE THIS IS ONE ISSUE AND AGAIN I THINK YOU'RE, THE APPELLATE COUNSEL SORT OF SAYS IT REALLY WASN'T SUCH A BIG DEAL. TO ME THESE ARE -- FROM A POINT OF VIEW OF WHAT THE STATE DOES THAT THE STATE IF THEY KNOW BEFORE SOMEONE PUTS ON THE STAND THAT THEY ARE NOW GOING TO SWITCH THEIR TESTIMONY AGAIN, DON'T THEY HAVE A CONTINUING OBLIGATION TO LET IF THE DEFINITION'S BEEN TAKEN TO ADVISE THE DEFENSE --
I THINK IF THEY HAVE THAT, I THINK THE PROBLEM IS WHEN YOU HAVE AN INMATE WITNESS WHO HAS MADE A NUMBER OF INCONSISTENT STATEMENTS PRIOR TO TRIAL, CERTAINLY YOU ARE HOPEFUL THAT YOU ARE GOING TO PUT THAT WITNESS ON AND HE'S GOING TO TELL THE TRUTH BUT THAT WITNESS --
CAN YOU EXPLAIN -- I AM TRYING TO UNDERSTAND THE CONTEXT IN WHICH HE TESTIFIED ABOUT THIS. WHAT DID THE STATE ASK THAT PRECIPITATED THIS TESTIMONY ABOUT THE JOHNSON CASE THAT THE? DID THE STATE ASK -- YOU SAY HE KNEW A LOT OF THINGS ABOUT LOT OF CRIMES AND TESTIFIED ABOUT THOSE.
YES BUT THE STATE ALSO.
DEDID HE TESTIFY ABOUT ALL THOSE AND THEN THE STATE SAID WHAT DO YOU KNOW ABOUT THE JOHNSON CASE EXPECTING HE'S GOING TO SAY I DON'T KNOW ANYTHING AND THEN HE BLURTED OUT AND SAY WELL I HEARD THIS CONVERSATION.
WELL, I THINK THE STATE WAS HOPEFUL THAT HE WOULD GET UP AND RELATE UNDER OATH AND BE CONSISTENT WITH THE PRETRIAL STATEMENTS HE HAD GIVEN TO THE POLICE IMPLICATING COREY SMITH AND IN CYNTHIA BROWN'S MURDER BECAUSE HE HAD MADE THESE STATEMENTS PREVIOUS TO HIS DEPOSITION SNOOT & DOWNSIDE WOULD BE HE WOULD SAY I DON'T KNOW ANYTHING ABOUT THAT CASE.
AND I THINK THE STATE WAS CERTAINLY HOPEFUL AND HE HAD A PLEA AGREEMENT THAT HE WAS TO TESTIFY TRUTHFULLY AT THIS TRIAL --
WAS THERE ANY EVIDENCE THAT ANYBODY ON BEHALF OF THE STATE SPOKE WITH CARLOS WALKER BETWEEN THE TIME OF HIS DEPOSITION AND THE TIME THAT HE TOOK THE STAND.
NO, THERE IS NO EVIDENCE OF THAT.
WELL, IN THE COLLOQUY THAT OCCURRED ABOUT THE MISTRIAL AND THEY HAD AN OBLIGATION TO SAY DID THE PROSECUTOR SAY I'M AS SURPRISED AS DEFENSE COUNSEL?
93, THE PROSCOURT -- REALLY I MEAN THAT WASN'T WHAT WAS BEING ASKED REALLY. THE PROSECUTOR -- WHAT WAS BEING ASKED, WAS JUDGE WE NEED A MISTRIAL BECAUSE THE STATE HAS PUT ON A WINS WHO CBHITED PERJURY. SO IT WAS, IT WAS MORE OF A DUE PROCESS ARGUMENT IT USED TO BE THAT YOU COULD NOT PRESENT TESTIMONY FROM A WITNESS WHO HAD A CONVICTION FOR PERJURY AND I THINK THAT'S THAT SEEMS TO BE THE OBJECTION THAT WAS MADE TO THE TRIAL COURT.
THE NONDISCLOSURE IT LOOKS LIKE THE BOTTOM LINE ON THE PREJUDICE IS AN ISSUE OF WAS THERE PROCEDURAL PRERJS.
THE PROCEDURE --
WAS THAT ADDRESS? AND DID IT GO INTO THAT? SO NO MATTER WHAT HAPPENED, THE BOTTOM LINE WON'T HAVE TO COME OUT IF IT DID AND IF IT WAS INCORRECT OR ERROR, THE QUESTION THEN BECOMES THE PROCEDURAL PRERJS AS I READ OUR CASES.
RIGHT.
SO WAS THAT THEN DISCUSSED HOW THIS MAY HAVE CHANGED THE DEFENSE APPROACH OR ANYTHING AT ALL LIKE THAT.
THERE WAS NOTHING LIKE THAT DISCUSSED HOWEVER IT WAS CLEAR FROM THE RECORD THAT THE DEFENSE WAS WELL PREPARED TO IMPEACH AND TO CROSS-EXAMINE THIS WITNESS. THEY CERTAINLY HAD HIS DEPOSITION. THEY HAD HIS PRETRIAL STATEMENTS THEY ASKED HIM ABOUT HIS CHANGE IN STATEMENT SO THEY EXPLORED THAT THEY HAVEN'T IDENTIFIED ANY PRETRIAL PREJUDICE ANYTHING THEY WOULD'VE DONE DIFFERENTLY HAD THEY KNOWN HE HAD CHANGE SAID HIS MIND.
THE BOTTOM LINE IS THERE WAS NO. THAT WAS NOT THE FOCUS OF WHAT, WHAT THE OBJECTION WAS.
THAT'S CORRECT. IT WAS NOT THE FOLK SNOOS IT WAS A -- FOCUS.
IT WAS NOT A FOCUS.
I THINK THE ARGUMENT OPEN APPEAL IS FROM THE SIPPIO CASE WELL THIS RUNS CLOSE TO THAT BUT IT WAS REALLY FACTUALLY VERY DIFFERENT BECAUSE IN SIPPIO YOU DIDN'T HAVE THE INCONSISTENT STATEMENTS AT TRIAL. YOU DIDN'T HAVE THE INITIAL STATEMENT WHERE HE IS GIVING THE PREJUDICEAL TESTIMONY WHICH THE DEFENSE HERE WAS CLEARLY AWARE OF.
THE ONLY REASON AGAIN AND YOU KNOW WHEN WE DECIDE WHETHER WHEN WE HAVE THIS KIND OF CASE WE KNOW THERE'S GOING TO BE POST CONVICTION AREN'T WE BETTER OFF SAYING WHATEVER HAP NS THEREUNDER'S NO PROCEDURAL PREJUDICE.
CERTAINLY.
.
CERTAINLY.
TAKE CARE OF IT THAT WAY.
CERTAINLY I THINK THAT IS THE BOTTOM LINE I THINK CLEARLY SUPPORTED BY THIS RECORD.
WE CAN'T FIND PROCEDURAL PREJUDICE IF WE DON'T KNOW THAT THE STATE NEW THE STATEMENT BEFORE HE TOOK THE STAND. AND ISN'T -- CIPPIO, AND THE RULE BASED ON THE FACT THAT YOU KNOW THERE WAS STATEMENT BEFORE TRIAL THAT WAS MADE, THAT THE STATE DIDN'T INFORM THE DEFENDANT ABOUT. SO IF THERE WAS NO STATEMENT BEFORE TRIAL, BETWEEN THE DEPOSITION DEPOSITION, AND THE TRIAL TESTIMONY, THERE IS NO DISCOVERRY INVITATIONALVIOLATION.
THAT IS CORRECT WOULD I HATE THE REASON I HATE TO RELY SOLELY ON GRAPHIC PROCEDURAL PREJUDICE WOULD I HATE FOR THIS PROSECUTOR SEEN IN SAME LIGHT AS PROSECUTOR IN CIPPP, CLEARLY PLAYING LOOSE AND FAST.
THE THERE IS NO HARM.
THERE IS NO HARM.
IS THE BOTTOM LINE YOU CAN TALK ALL DAY WHETHER YES OR IN BUT THAT IS THE BOTTOM LINE ON THIS TO WHOLE DISCUSSION.
YES, YOUR HONOR, YES.
TAKE THAT APPROACH, EVEN IF THEY HAD.
EVEN IF THEY HAD.
YES.
AND AGAIN EVEN WITH CARLOS WALKER OBVIOUSLY WERE ABLE TO IMPEACH HIM MUCH OF HIS AT WHICH TESTIMONY WAS PRETTYIED FROM WITNESSES, HE WAS NOT --
COULD WE INFER FROM THE EXAMS OF MR. WALKER BY THE STATE THAT THE STATE REALLY DID HAVE SOME IDEA THAT HE WAS GOING TO TEST CONSISTENTLY WITH HIS PRIOR STATEMENT NOT THE DEPOSITION BUT THE PRIOR, BECAUSE OTHERWISE, WHY EVEN ASKED HIM AND GONE INTO THIS WHOLE WHOLE --
I'M SURE THEY WERE HOPE, AGAIN HE HAD A A HE HAD PLEA BARGAIN AVERAGES, IN -- ACKNOWLEDGES IN DIRECT AND CROSS EXAMINATION ABOUT PLEA BARGAIN IF HE HAD COME NO NOT TESTIFIED TRUTHFULLY AT TRIAL, THEN PLACE BARGAIN BOTH IN JEOPARDY I'M SURE THE STATE WAS HOPEFUL THAT HE WAS GOING TO COME IN AND TELL THE TRUTH, BUT YOU KNOW WHEN YOU ARE BRINGING IN A WITNESS WHO HAS MADE A LOT OF INCONSISTENT STATEMENTS AND FOR THE FIRST TIME LOOKING HIS DEFENDANT, IN THE EYE, THE DEFENDANT IN THE EYE THAT HE IS SAYING THINGS ABOUT, I THINK IT IS IT IS UNFAIR TO SAY THE PROSECUTOR ABSOLUTELY NEW THE WAY THIS TESTIMONY WAS GOING TO GO I THINK THE PROSECUTOR WAS HOPE FULL HE WAS GOING TESTIFY THE WAY HE DID BUT THERE IS NO INDICATION AT ALL THAT HE HAD HAD CONVERSATIONS WITH WALKER, THAT HE KNEW WALKER WAS GOING TO ANSWER THE WAY THAT HE ANSWERED AND EVEN EVEN IF WALKER HAD SAID THAT PRIOR TO TRIAL HE COULD STILL GET YOU ON THE STAND AND FREEZE UP. AND YOU KNOW,AFTER LOOKING COREY SMITH IN EYE DECIDED HE DIDN'T REMEMBER AS MUCH HE WANTS TO DO REMEMBER.
PROBABLY MOST DAMAGING PART HE STATED THAT HE LIED HE SAW SMITH AT THE DEPOSITION DEPOSITION, AND WITH JACKIE -- DEPOSITION LOOK WHAT HAPPENED TO HIM IDEA, LIED, BECAUSE THE --
SHADES EACH.
WHICH IS --
THERE WAS A LOT OF TESTIMONY AT TRIAL ABOUT HOW SMITH HAD ALWAYS PRETRIAL DISCOVERY, FROM OBVIOUSLY THE DOMINIC JOHNSON CASE, AND HAD THOSE DEPOSITIONS IN THE CASE THAT JACKIE POPE WAS COOPERATING WITH THE STATE ALSO ACCESS TO THAT DISCOVERY THOSE DEPOSITIONS AND HAD WITH CARLOS WALKER GONE THROUGH THAT DEPOSITION AND WAS TAKEN, IN THE JACKIE POLEK CASE ALL OF THAT WAS BROUGHT OUT O --
I DID WANT TO ADDRESS THE LIMITATION ON THE CROSS EXAMINATION OF ANTHONY P PHAIL, AND I THINK MUST OF WHAT THE DEFENSE IS ALLEGING JURY SHOULD FOUR HEARD IN FACT WAS BROUGHT OUT FOR THE JURY, THE -- THE PHAIL TESTIMONY IN VOLUME 48 OF THE RECORD PHAIL WAS PERMIT PERMITTED ASKED ABOUT SHOOTING SOMEONE NAMED CARLTON TANNER, WHEN HE GOT OUT OF JAIL THE STATE OBJECTION WAS OVERRULED AND HE ABLED THATCKNOWLEDGED THAT HE HAD SHOT MR. TANNER IN FACT TALKED ABOUT THAT CRIME A LITTLE BIT, TO HIS WHO HAD BEEN IN ON THAT, THIS WAS A CRIME HE WAS NOT CHARGED WITH. AND NOT CONVICTED OF, AND HE HE IS ASKED EXTENSIVELY ABOUT WHAT OTHER MURDERS HE COMMITTED ON THE CRIMES HE COMMITTED TO WHAT EXTENT HE HAS BEEN CHARGED THAT INFORMATION ALL CAME BEFORE THE JURY, THE VOOM 48 IN THE RECORD AT 33499WHERE HE AVERAGES AVERAGES, THAT YES, HE HAD SHOT CARLTON TANNER, LATER IN THE RECORD, HE TESTIFIES THAT HE BRINGS OUT THE STATE THAT HE HAS TALKED TO THE STATE AND A PROVIDED INFORMATION TO THE STATE ABOUT A NUMBER OF OTHER SHOOTINGS THAT HE WAS INVOLVED IN. AND HE HAD BEEN HONEST WITH THE STATE ABOUT THAT, AND HE RESPONDED IN IS IN THE RECORD 359368 AND 69 HE WAS ASKED IF HE HAD BEEN CHARGED WITH ANYTHING OF THOSE SHOOTINGS SHOOTINGS, HE RESPONDS THAT HE HAD NOT BEEN CHARGED, AND THE ONLY OBJECTION THAT WAS REALLY SUSTAINED WAS COUNCIL HAD ASKED DEFENSE COUNSEL HAD SCUM PEOPLE PHAIL ACTUALLY KILLED AT ONE POINT P PHAIL RESPONDED NOT MANY THE DEFENSE COUNCIL DIDN'T GET A NUMBER THAT IS REALLY THE ONLY THING THE JURY DIDN'T HEAR IF DEFENSE COUNCIL WAS LOOKING FOR NUMBER AS OPPOSED TO NOT MANY THAT WASN'T PAUFRD FOR THE RECORD WE DON'T KNOW WHAT NUMBER HE WAS LOOKING FOR, FOR THE MOST PART THE THINGS THEY ARE COMPLAINING JURY SHOULD HAVE HEARD ABOUT CERTAINLY THE JURY NEW HE WAS IMPLICATED ACKNOWLEDGED ADMITTED COMMITTING A LEFT SERIES CRIMES HE HAD NOT BEEN CHARGED WITH DID NOT DID NOT EXPECT TO BE CHARGED WITH SO IS THAT INFORMATION WAS BEFORE THE JURY, AND THE SAME WITH DEMETRIUS JONES THEORY INMATE WITNESS THERE WAS A SIMILAR CLAIM ABOUT LIMITATION OF COURTROOMS NATION WITH REGARD -- CROSS-EXAMINATION WITH REGARD TO HIM IF YOU REVIEW THE CROSS-EXAMINATION OF WITNESSES DEFENSE ATTORNEYS WERE ALLOWED TO GO FURTHER THAN LAW ALLOWS IN BRINGING OUT PRIOR BAD ACTS BY THESE WITNESSES WITNESSES, THE JUDGE CERTAINLY ASKED THE PROSECUTORS PROSECUTORS, AND YOU KNOW, TO FIND OUT THE STATUS OF WHAT THESE CASES THERE WERE SO MANY OTHER CRIMES THAT WERE OUTSIDE OF THE INDICTMENT, THAT WERE BEING DISCUSSED, AND SO THERE REALLY IS NOT THE LIMITATION, THAT HAS BEEN IDENTIFIED ON APPEAL IN TERMS OF KEEPING INFORMATION FROM THE JURY, AND I JUST WANTED THE COURT TO KEEP THAT IN MIND YOU SEE REVIEW THAT ISSUE, THAT THERE WAS THERE MAY HAVE BEEN, SCATTERED ISOLATED QUESTIONS ON DIRECT -- ON CROSS EXAMINATION EXAMINATION,BUT, THERE REAL NOT ANYTHING THAT JURY DIDN'T HEAR ABOUT WITH REGARD TO IMPEACHING THIEVES WITNESSES THEY NEW THAT ALL OF THESE WITNESSES COMMITTED CRIMES TO THAT WERE NOT BEING CHARGED FOR SO THAT IS -- THAT IS REALLY WHERE THAT IS. THE LIMITATION ON DR. LEW MEDICAL EXAMINEER SHE WAS ABLE TO TESTIFY COMOOIT ABOUT THE -- ASPHYXIATION, SHE CERTAINLY IDENTIFIED FOR THE JURY WHAT THAT WAS, IN FACT ON DIRECT EXAMINATION, WHEN SHE INITIALLY TESTIFIED, THIS IS NOT ACTUALLY STRANGULATION CASE, CYNTHIA BROWN WAS KILLED WITH SMOTHERED WITH A PILING PILINGO ACCORDING TO ALL THE PHYSICAL EVIDENCE AT THE SCENE IN THE MOTEL ROOM THE MEDICAL EXAMINEER CONCLUDED THAT SHE THE ASPHYXIA THAT KILLED HER WAS A RESULT OF SMOTHERING SMOTHERING, SHE DISCUSSED IN HER DIRECT TESTIMONY OTHER WAYS THAT SOMEONE CAN DIE, FROM ASPHYXIA, THAT IS NOT BEING SMOTHERED SHE TALKED ABOUT STRANGULATION ABOUT DROWNING ABOUT, POSITIONAL, AND THE AS FIX -- DURING SEX IS ONE OF THOSE POSSIBILITIES POSSIBILITIES.
WHAT WAS THE DEFENSE TRYING TO BRING OUT WAS THE DEFINITION TRYING TO BRING -- TRYING TO BRING OUT STRANGULATION DURING THE COURSE OF SEXUAL ACT WHAT WAS THAT IT THEY WANTED HER TO TESTIFY TO THAT WAS LIMIT LIMITED? .
WELL, AGAIN, THAT IS NOT PROFFERED IN THE RECORD WHAT THEY THE QUESTION THAT THEY ASKED THE OBJECTION WAS SUSTAINED WHEN AND THEY HAD ASKED FOR A NUMBER OF HYPOTHETICALS HYPOTHETICALS, ABOUT ACCIDENTAL DEATH DURING SEX SHE RESPOND TO DO ALL THOSE HYPOTHETICALS EXPLAINED WHY SHE PHYSICAL EVIDENCE IN THIS CASE REFUTED THAT, THE ONE QUESTION THAT THE OBJECTION WAS SUSTAINED WAS THE DEFENSE SAID COULD YOU EXPLAIN TO THE JURY, ASPHYXIA ASPHYXIA,AND THAT THE POINT THE STATE OBJECTED, AND IN THAT IS WHEN TRIAL JUNG SAID, THIS IS THE STATE'S WITNESS YOU ARE GOING TO NEED TO GET YOUR OWN EXPERT YOU ARE GOING A LITTLE FAR. AND THE DEFENSE SAYS OKAY WE WILL DO THAT THAT, AND THEN THEY QUESTIONING HER AGAIN SHE RESPONDED TO HYPOTHETICALS WHETHER THIS COULD BE SOMETHING THAT TOOK PLACE DURING SEX, SHE --
THAT IS HER -- THAT -- IS THE TERM FOR THAT, -- SO --
YES THE JURY HEARD THAT HEARD WHAT IT WAS SO IT IS NOT LIKE THEY WOULDN'T UNDERSTAND THAT THAT IS WHAT SHE IS TALKING ABOUT, I MEAN I DON'T KNOW AGAIN, WE DON'T KNOW WHALES THEY REALLY WANT WANTED OUT OR WANTED FROM THIS WITNESS.
THERE WAS NO PROFFER.
THERE WAS NO PROFFER, THERE WAS NO PROFFER.
WITH THAT OF YOU XAUSTED ALL OF YOUR TIME.
THANK YOU I JUST ASK THIS COURT AFFIRM THE JUDGMENT --
REBUTTAL.
THANK YOU, JUST TWO POINTS THAT I WANTED TO BRING UP ON REBUTTAL FIRST OF ALL RESPONSE OF -- JUSTICE PARIENTE WAS TALKING ABOUT JUST TO CLARIFY, THERE WAS AN ORDER SIGNED BY THE TRIAL COURT ON OCTOBER 4TH, THE DAY BEFORE JURY SELECTION BEGAN, ORDERING A SECOND MAGNETOMETER, SO IT WASN'T THAT IT IS I THINK, MAYBE IT WAS JUST JUSTICE CANTERO SAID IS THIS CUSTOMIZE CUSTOMIZED FOR THIS CASE ESSENTIALLY YES, IT WAS THE MAGNETOMETER DOWNSTAIRS AND THERE WAS ORDER FOR A SECOND ONE, A SPECIAL ORDER IN THE RECORD, WHICH WAS NOT ARGUED IN FRONT OF BY THE COURT, IT WAS I DON'T KNOW IF EX PARTE IOWA ORDER THERE IS NOTHING ON THE RECORD EE.
WOULD THAT ORDER PROVIDED TO HE DEFENSE COUNCIL.
ACTUALLY NOT NO THE DEFENSE COUNCIL WAS NOT AWARE OF IT UNTIL I BELIEVE AT LEAST OCTOBER 6TH, WHEN JURY SELECTION BEGAN OCTOBER 5, OCTOBER 5TH WAS WHEN THE RECORD INDICATES THE DISCUSSIONS BEGAN ABOUT LOOK WHAT IS GOING ON HERE THIS IS A SECOND MAGNETOMETER.
AT LEAST DEFENSE COUNCIL -- IF PRACTICED IN THE AREA WAS AWARE WHEN THAT CAME ON THE FIVE THIS.
I'M SORRY? I DIDN'T UNDERSTAND.
IS THE DEFENSE COUNSEL FROM THIS AREA AND DOES HE OR SHE PRACTICE IN THIS COURTHOUSE ON A REAGAN BASIS.
ABSOLUTELY YES.
SO WHEN THAT COUNCIL CAME TO THE COURTHOUSE TO BEGIN JUNIOR SELECTION, WOULD HAVE IF NOT HAVE RECEIVEDED WOULD HAVE AT LEAST GOOD THROUGH THE MAGNETOMETER.
WOULD HAVE SEEN SECOND MAGNETOMETER YES, AND, THE SECOND POINT I WANTED TO MAKE WAS THE POINT ABOUT THE WAS THE STATE ATTORNEY AWARE WHEN THEY PUT CARLOS WALKER ON THE STAND MR. WALKER HAD CHANGED HIS TESTIMONY, THERE IS I CAN'T HONESTLY WOULDN'T INDUSTRY TO POINT TO ANYTHING IN THE RECORD THAT SAID IS THE PROSECUTOR SAID YES, I KNOW THAT HE CHANGED HIS TESTIMONY,I THINK IT IS DISINGENUOUS TO SAY THEY WERE HOPE FULL WOULD HE STICK TO FIRST STATEMENT WHATEVER WHATEVER.
BOTTOM LINE ON THAT ISSUE COMES DOWN TO WAS NOT APPROACHED AS A RICHARDSON ISSUE.
EXACTLY.
AND THERE IS NO PROCEDURAL PREJUDICE WHICH IS NECESSARY EVEN IN THAT CONTEXT CONTEXT. I MEAN THAT A FAIR STATEMENT.
YES JUDGE, YES.
WITH THAT I'M GOING SIT DOWN THANK YOU.
THANK YOU, THE COURT WILL TAKE THE CASE UNDER ADVICEMENT THE COURT WILL TAKE ITS MORNING RECESS.