Pablo San Martin v. State of Florida

SC05-831

NEXT CASE ON OUR CALENDAR
THIS MORNING IS SAN MARTIN

VERSUS STATE OF FLORIDA.
>> PLEASE THE COURT, GUSTAVO
GARCIA MONTEZ, REPRESENTING
MR. SAN MARTIN BEFORE THE COURT.
>> PULL THE MICROPHONE A LITTLE
CLOSURES AND MAY HELP US TO HEAR
BETTER.
>> IS IT BETTER.
>> MUCH BETTER.
>> THANK YOU.
THIS CASE IS ON APPEAL ON THE
BASIS OF A DENIAL OF A
POSTCONVICTION CLAIM FILED IN
THE COURT BELOW, THE CLAIM FILED
AFTER THE DENIAL ON THE DIRECT
APPEAL.
I'D LIKE TO CONCENTRATE ON, IN I
MAY THE DENIAL WITHOUT
EVIDENTIARY HEARING OF THE CLAIM
AND IF I MAY COMBINE SOME OF
THEM FOR BREVITY'S PURPOSES.
THAT BEING THE FAILURE TO
PROPERLY INVESTIGATE THE
DEFENDANT'S BACKGROUND IN CUBA,
WHEN COMBINED OR INATTENDANT TO
THE FAILURE AND -- TO DEVELOP

AND COORDINATE THAT BACKGROUND
WITH THE EXPERTS THAT WERE
PRESENTED AT TRIAL.
>> WHAT -- GO RIGHT TO IT.
WHAT DID THE -- WHAT WERE THE
ALLEGATIONS AND WHAT DO YOU SAY
SHOULD HAVE BEEN TESTED AT THIS
EVIDENTIARY HEARING?
LET'S GO RIGHT TO WHAT YOU THINK
YOU SHOULD HAVE HAD THE HEARING
TO DEVELOP.
>> YES, YOUR HONOR.
WHAT I BELIEVE THE HEARING
SHOULD HAVE BEEN HAD TO DEVELOP
IS WHY THE EXPERTS THAT WERE
PRESENTED DURING THE TRIAL HAVE
NOT ACTUALLY MET WITH THE FAMILY
MEMBERS OF MR. SAN MARTIN PRIOR
TO THEM DEVELOPING THEIR OPINION
ESTIMATES, MR. MARTIN'S MENTAL
HEALTH AN CONDITION AND ANY
MITIGATING FACTORS, PARTICULARLY
IN LIGHT OF THE FACT THAT THAT
RESULTED IN THE FAMILY OF
MR. SAN MARTIN TESTIFYING IN
MITIGATION IN A MATTER THAT

CONTRADICTED THE EXPERT'S
DESCRIPTION OF MR. SAN MARTIN'S
LIFE AND, THEREFORE --
>> ONE OF -- DIDN'T ONE OF THE
EXPERTS TESTIFY THAT THAT
ACTUALLY WAS PART OF THEIR
TECHNIQUE, THAT IS, THAT THEY
FELT LIKE THEY DIDN'T WANT TO BE
BIASED BY INFORMATION THAT THEY
RECEIVED BEFORE INTERVIEWING
MR. SAN MARTIN, THEIR PATIENT,
YOU KNOW, THE SUBJECT OF THE --
DID ONE OF THEM TESTIFY THAT
THAT WAS A CONSCIOUS POLICY OF
THEIRS BECAUSE THEY WANTED TO
HAVE DIRECT EXPOSURE TO THE
PATIENT AS FAR AS THEIR
EVALUATION TO BEGIN WITH?
I MEAN, JUST HELP ME WITH THAT.
>> YOUR HONOR IS CORRECT.
AND I BELIEVE IT WAS DR. MARINA
WHO TESTIFIED THAT SHE DIDN'T
WANT TO MEET -- DID NOT MEET
WITH THE FAMILY OF -- AS A
MATTER OF COURSE.
THE -- WHAT EFFECT DOES THAT

HAVE AND, IF SHE DOESN'T WANT TO
MEET WITH THE FAMILY, SHOULD THE
ATTORNEY HAVE HAD PREPARED A
SUMMARY OF WHAT THE FAMILY WOULD
HAVE TO SAY, AND ADDITION, THE
ATTORNEY THEN NEEDS TO REALLY
DIG IN, WITH THE FAMILY AND
EXPLORE THE DEFENDANT'S
BACKGROUND, BEING THE EXPERT
DOESN'T WANT TO MEET WITH THE
FAMILY, WELL, HERE'S WHAT THE
FAMILY HAS TO SAY.
>> WHAT DID THAT EXPERT SAY IN
TERMS OF ANY INVESTIGATION INTO
THE BACKGROUND OF THE PATIENT?
IN ADDITION TO THE DIRECT
INTERVIEW?
DID THE DOCTOR SAY THAT THEY HAD
OTHER MATERIALS OR DID ANYTHING
ELSE OTHER THAN INTERVIEW THE
PATIENT?
>> JUDGE, THE BEST THING I WAS
ABLE TO FIND FROM THE RECORD
BELOW WAS THE DOCTOR SAID THAT
SHE HAD NOT READ THE REPORTS AND
RECORDS OF THE CASE.

SO THAT IT APPEARS THAT THE ONLY
THING THAT DR. MARINA WAS
WORKING WITH WAS WHATEVER
INVESTIGATOR REPORTS MAY HAVE
EXISTED FROM THE ATTORNEYS WHICH
WE DO NOT KNOW BECAUSE THEY BOTH
LOST THEIR FILES OR DESTROYED
THEIR FILES AS WELL AS
DR. MARINA'S CONVERSATIONS WITH
PABLO SAN MARTIN.
>> ONE OF YOUR POINTS IS, I
REALIZE, THE CONFLICT BETWEEN
THE TWO TO SOME EXTENT.
>> YES.
>> BUT WHAT DID THE OTHER
EXPERTS SAY IN TERMS OF
INTERVIEWING FAMILY MEMBERS, OR
BEING EXPOSED TO MATERIAL FROM
THOSE FAMILY MEMBERS OR FRIENDS,
TO DEVELOP THE BACKGROUND.
WAS THERE A PARALLEL TESTIMONY
FROM THAT EXPERT ABOUT WHAT
THEIR POLICY WAS?
IN TERMS OF INVESTIGATION BEFORE
EVALUATION?
>> YOUR HONOR, THE --

DR. HERRERA'S TESTIMONY WAS MORE
COMPLETE AND APPEARED TO BE
MR. THOROUGH, HOWEVER -- BUT IT
DOES NOT -- DID NOT TAKE AWAY
THE CONFLICT WITH DR. MARINA'S
TESTIMONY AND THE ACTUAL DEFENSE
IMPEACHMENT OF ITSELF IN THE
PRESENTATION OF MITIGATION
TESTIMONY.
I ACKNOWLEDGE THE FACT THAT
DR. HERRERA TESTIMONY AND WORK
APPEARS TO HAVE BEEN MORE
THOROUGH.
BUT, THERE IS AN ADDITIONAL
ISSUE.
AND IT HAS TO DO WITH THE
COORDINATION OF THE DEFENSE
WITNESSES.
AND WHILE I'M IN NO WAY
PROPOUNDING THAT THEY SHOULD
HAVE COACHED PEOPLE TO TESTIFY
IN A PARTICULAR WAY, THERE DOES
NOT APPEAR ON THE RECORD
ANYWHERE THAT ONE DOCTOR'S
REPORT WAS GIVEN TO THE OTHER
DOCTOR'S REPORT PRIOR TO

TESTIMONY.
BECAUSE IN FACT AT -- ON THE
STAND, DR. MARINA WAS CONFRONTED
WITH ANOTHER DOCTOR'S REPORT
THAT SHE SHOULD HAVE REVIEWED
AND CHANGED HER OPINION ON THE
STAND.
>> WHAT WAS COUNSEL'S
EXPLANATION OF BOTH THE CONFLICT
AND THEN THAT ISSUE?
>> I DON'T KNOW.
>> COUNSEL, WAS COUNSEL
QUESTIONED ABOUT BEING AWARE OF
THE CONFLICT?
AND THE OTHER MATTER THAT YOU
ARE JUST POINTING OUT.
>> YOUR HONOR, I DO NOT HAVE
ANYTHING IN THE RECORD BELOW.
>> WAS THIS CLAIM SUMMARILY
DENIED.
>> YES.
>> ALL RIGHT.
I THINK WE HAVE GONE BACK TO THE
FIRST QUESTION WHICH IS THAT YOU
WANT A CHANCE -- AND THAT WAS
WHAT JUSTICE LEWIS WAS ASKING

YOU ABOUT, TO DEVELOP THIS, AS
TO WHY HE DIDN'T PROVIDE MORE
ACCURATE STATEMENTS OF WHAT THE
FAMILY WOULD SAY, WHY, WHY, WHY,
RIGHT SENATE WE DON'T HAVE THE
ANSWERS YET.
>> EXACTLY.
ALL OIL SAYING IS THAT AN
EVIDENTIARY HEARING SHOULD HAVE
BEEN HELD AS TO THAT POINT.
AS TO THE COORDINATION AND
DEVELOPMENT OF BACKGROUND AND
THE COORDINATION OF THE
WITNESSES, PARTICULARLY WHEN
THEY ARE GOING TO BE
CONTRADICTED BY THE FAMILY.
>> WOULD YOU ENLIGHTEN ME ON
THIS PART AND I'M -- IT DOESN'T
APPEAR IN THE RECORD.
AS I DIDN'T IT, ALL OF THE
WITNESSES THAT YOU SAY NOW TALK
ABOUT THE TERRIBLE CHILDHOOD,
DID TESTIFY AT THE TRIAL, OTHER
THAN THE FATHER, THE FATHER WAS
AVAILABLE.
FIRST OF ALL, CORRECT.

>> THAT'S CORRECT.
>> ALL RIGHT.
AND THEY TESTIFIED TO MORE OF A
GLOWING CHILDHOOD THAN MR. SAN
MARTIN RECALLS AND DR. MARINA AT
TRIAL EXPLAINED THAT AS BEING
PEOPLE DON'T WANT TO ACKNOWLEDGE
BAD THINGS IN THEIR BACKGROUND,
CORRECT.
>> CORRECTED, YOUR HONOR.
>> BUT THEN, WHAT YOU ARE SAYING
IS THAT KIND OF BLEW THE WHOLE
THING OUT OF THE WATER BECAUSE
THEY IMPLIED SAN MARTIN WAS
MAKING IT UP, SO FORTH, CORRECT.
>> THAT'S CORRECT.
>> BUT IF THE ACTUAL WITNESSES
TESTIFIED TO WHAT THEY TESTIFIED
AT THE TRIAL, AND THEY ARE NOW
CHANGING IT, ISN'T IT -- DON'T
WE FROM A POINT OF VIEW OF
LOOKING AT THIS, IT IS -- WHAT
WOULD THE DEFENSE LAWYER HAVE
DONE DIFFERENTLY IF THAT WAS
THEIR TESTIMONY AT THE TIME?
WHAT WOULD YOU DEVELOP I GUESS

IN THAT REGARD?
THAT IS, THAT WELL, THEY
TESTIFIED ONE WAY, ASSUME THAT
HE PREPARED THESE WITNESSES OR
ARE YOU GOING TO ARGUE AND SAY
HE REALLY DIDN'T PREPARE THEM
WELL, TO POINT TO THEM WHY THEY
REALLY NEEDED TO TALK ABOUT THE
BAD CHILDHOOD?
I MEAN, WHAT IS --
>> JUDGE THAT IS PRECISELY PART
OF THE PROBLEM, HAS TO DO WITH
COORDINATION AND THE
DEVELOPMENT.
THEY FAILED TO MEET WITH THE
PEOPLE SUFFICIENTLY, YOU CAN'T
GET TO THE DARK SECRETS OF A
FAMILY IN A COUPLE OF MEETINGS.
ONE OF THE WITNESSES FROM SAN
MARTIN'S BROTHER, TESTIFIED,
WELL, THEY NEVER TOLD ME TO SAY
EVERYTHING.
I WAS NEVER TOLD TO SAY
EVERYTHING.
AND, THAT -- WHAT THAT INDICATES
IS A FAILURE TO DEVELOP A

RAPPORT WITH THE FAMILY WHEN YOU
WILL BE ASKING THE FAMILY TO
OPEN THEMSELVES AND DISCLOSE
INCIDENTS SUCH AS DRUNKEN
BINGES, A PERSON BEING TIED TO A
TABLE, ET CETERA.
>> DID YOU SAY HIS FAMILY WAS
BACK IN CUBA?
>> YES.
YES.
>> A LITTLE HARDER TO DEVELOP A
RAPPORT.
>> NO, I'M SORRY.
THAT HAPPENED IN CUBA BUT THE
FAMILY IS HERE IN MIAMI.
>> OKAY.
SO --
>> IT HAPPENED IN CUBA, IN A
DIFFERENT COUNTRY AND MAY BE
DIFFICULT TO OBTAIN ANY RECORDS
BECAUSE OF A DIFFERENT JUDICIAL
SYSTEM AND DIFFERENT
RECORDKEEPING SYSTEM BUT THE
TESTIMONY WAS THERE TO BE HAD.
>> WAS THERE A LANGUAGE BARRIER.
>> NO.

>> WITH THE INITIAL -- TRIAL
LAWYER -- INTO NO.
>> BOTH SPOKE SPANISH.
>> LET ME GO BACK TO THE
DISCUSSION.
I UNDERSTAND, YOU DID SAY THAT
ADDITIONAL INVESTIGATION, DO YOU
MEAN OTHER PEOPLE OR IS THIS
WHAT YOU ARE TALKING ABOUT, THE
FAMILY DISCUSSION.
>> THE FAMILY DISCUSSION YOUR
HONOR.
>> THAT IS WHAT YOU MEAN BY
FURTHER INVESTIGATION.
>> YES.
>> NOT THAT THEY COULD FIND
OTHER WITNESS OR ADDITIONAL
INFORMATION, THEY JUST DIDN'T
DEVELOP IT FROM THOSE FAMILY
MEMBERS WHO WERE HERE.
>> CORRECT.
>> AND THAT'S WHAT YOU THINK IN
THE -- YOU NEED AN EVIDENTIARY
HEARING ON IS THAT.
>> CORRECTED AND THE PROBLEM
LIES, THEN YOU GO TO THE ONE

THAT YOU CAN'T PROVE BECAUSE
SINCE YOU DO NOT HAVE A RAPPORT
WITH THE CLIENTS PRIMARY FAMILY,
CLOSEST FAMILY MEMBERS, YOU --
AND THE CLIENT ATTEMPTED TO GET
RID OF HIS ATTORNEY, BASICALLY,
THEY HAVE -- THE DAY OF TRIAL
SAYING THERE WAS NO
COMMUNICATION THAT HE WAS EVEN
-- COPIES AND WHAT HAVE YOU NOT
THEN YOU ARE LEFT IN A VACUUM AS
TO HAVE THEY REALLY DEVELOPED A
RAPPORT WITH THE PEOPLE AND WHAT
OTHER STUFF COULD THEY HAVE
FOUND AND THAT IS AN IMPOSSIBLE
ASPECT --
>> NO, WE ARE STILL TALKING
ABOUT NONSTATUTORY MITIGATION,
CORRECT.
>> JUDGE, WE ARE...  WE ARE
TALKING ABOUT NONSTATUTORY
MITIGATORS TO THE POINT THAT --
TO THE POINT THAT YOU -- TO THE
POINT THAT THE PSYCHOLOGICAL
PROFILE MAY NOT HAVE BEEN
ADEQUATELY DEVELOPED DUE TO THE

LACK OF CRITICAL INFORMATION
FROM THE FAMILY.
THAT IS PART OF THE PROBLEM.
>> WHAT ALLEGATION WAS THERE AS
TO THAT POINT?
IS THERE ANY ALLEGATION THAT
THERE ARE POTENTIAL STATUTORY
MITIGATORS HERE.
>> HE MAY -- THERE IS AN
ALLEGATION THAT HE MAY HAVE A
BRAIN INJURY.
AND THAT THAT BRAIN INJURY MAY
PLAY A ROLE, MAY HAVE PLAYED A
ROLE.
THERE IS A CLEAR EVIDENCE THAT
HE -- THAT THE INDIVIDUAL IS
IMPULSIVE, CLEAR EVIDENCE THAT
THE INDIVIDUAL HAS A VERY LOW
IQ, AND THAT HE IS A FOLLOWER,
AND SO THAT WE MAY GO INTO SOME
OF -- MAY BE ABLE TO REACH SOME
OF THE OTHER, SOME OF THE
STATUTORY MITIGATORS BUT THE
PROBLEM LIES WITH THE FAILURE TO
HAVE A MORE THOROUGH -- HAVE A
COMPLETE AND THOROUGH

INVESTIGATION OF THE BACKGROUND
AND --
>> LET ME ASK YOU, YOU KEEP
SAYING THAT.
BUT NOW, THE ATTORNEY DID IN
FACT TALK WITH THESE PEOPLE,
CORRECT?
>> YES.
>> AND WAS THAT -- ON MORE THAN
ONE OCCASION.
>> YOUR HONOR, WE CANNOT KNOW
THAT BECAUSE THE --
>> I GUESS I'M TRYING TO GET
FROM YOU, THEN, HOW -- HOW FAR
ARE WE SUPPOSED -- IS AN
ATTORNEY SUPPOSED TO GO?
YOU KEEP SAYING DEVELOP A
RAPPORT WITH THE FAMILY MEMBERS.
I MEAN, WHAT ARE YOU SUGGESTING?
THAT YOU HAVE TO MEET OVER AND
OVER AND OVER AGAIN WITH THESE
PEOPLE?
AND TELL THEM EXACTLY EVERYTHING
THAT IT IS?
I MEAN, THEY'RE THE ONES WHO
HAVE THE INFORMATION.

CORRECT?
AND SO, WHAT IS -- WHAT IS IT
THAT YOU ARE SUGGESTING THIS
ATTORNEY SHOULD HAVE DONE?
>> JUDGE, IF I --
>> BEYOND TALKING TO THESE
PEOPLE, FINDING OUT WHAT THEIR
FAMILY LIFE IS LIKE?
>> JUDGE, THE -- THE PROBLEM
LIES, BUT --
>> AN ISSUE OF WHAT.
>> OF STYLE BUT IN THIS CASE I
WAS COMPLETELY SURPRISED OF THE
FACT THAT AN ATTORNEY WOULD PUT
AN EXPERT ON THE STAND THAT IS A
PSYCHOLOGIST OR PSYCHIATRIST,
THAT HAS NEVER SPOKEN TO THE
FAMILY MEMBERS OF THE PERSON
THAT HE IS PROVIDING THAT
OPINION ABOUT.
>> OKAY.
I WAS MORE INTERESTED IN YOUR
WHOLE NOTION THAT THE ATTORNEY
HAS TO DEVELOP SOME KIND OF
RAPPORT WITH THE FAMILY MEMBERS
BEYOND FINDING OUT, IT SEEMS TO

ME, WHAT IT IS THEY HAVE TO
OFFER IN TERMS OF MITIGATION.
>> AND I'M GOING THERE.
THE THING IS THIS:
WHERE YOU HAVE AN AND EXPERT NOT
MEETING WITH THE FAMILY MEMBERS
YOU HAVE TO MEET EVER SO MUCH
MORE.
ATTORNEYS ARE NOT PSYCHIATRISTS.
THEREFORE, THE MEETINGS HAVE TO
BE HELD IN ORDER TO BE ABLE TO
GET -- GAIN THE TRUST AND GAIN
THE CONFIDENCE OF THOSE
INDIVIDUALS.
GO BACK TO MEET WITH YOUR CLIENT
AND IS YOUR CLIENT TELLING YOU
THAT HIS FATHER STRUCK HIM, HIS
FATHER, THEY LIVED IN ABJECT
POVERTY AND HIS FATHER WAS
ALCOHOLIC AND THERE WAS DOMESTIC
VIOLENCE AND THE FATHER WOULD
BEAT THE MOTHER AND THAT HIS
FATHER WOULD TIE HIM TO A CHAIR
AND BEAT HIM UP WHEN HE WAS A
CHILD.
>> I GUESS THE PROBLEM IS THAT

YOU ARE ASSUMING RIGHT NOW THAT
THE DEFENDANT WAS CORRECT, WAS
TELLING THE TRUTH AND THE FAMILY
WAS LYING AND THEREFORE YOU
DEVELOP A RAPPORT TO GET THE
FAMILY TO COME OUT WITH THE
TRUTH.
BUT WHEN THIS LAWYER IS BACK
THERE, BEFORE TRIAL, TALKING TO
BOTH PEOPLE, HE IS NOT ASSUMING
ANYTHING.
HE'S JUST TRYING TO GET PEOPLE
TO TESTIFY ON THE DEFENDANT'S
HALF, AND IF THEY TELL HIM THE
FIRST TIME, NO, WE -- HE WASN'T
BEATEN, NO, THE FATHER WASN'T
ALCOHOLIC IT IS HARD TO
UNDERSTAND WHAT MORE HE IS
SUPPOSED TO DO OTHER THAN JUST
BERATE THEM AND SAYING I KNOW
ARE LYING AND THE DEFENDANT SAYS
OTHERWISE.
NOT SURE WHAT KIND OF RAPPORT
THAT WILL ESTABLISH.
>> WELL, AT THAT POINT, AT THE
POINT -- AND IT IS A

PARTICULARLY DIFFICULT EXERCISE,
I RECOGNIZE THAT, HOWEVER, AT
THAT POINT, THE ATTORNEY NEEDS
TO GO INTO SOME OF THE THINGS
THAT ARE AVAILABLE TO AN
ATTORNEY HANDLING A CAPITAL CASE
INCLUDING VARIOUS LISTS OF
QUESTIONS AND QUESTION ANSWERS
THAT YOU CAN DRAW --
>> SCHOOL RECORDS AND THINGS
LIKE THAT OR WERE THEY IN CUBA
AND HE COULDN'T GET THEM BECAUSE
THEY WERE IN CUBA OR YOU DON'T
KNOW BECAUSE THE RECORDS ARE
DESTROYED.
>> IT IS HALF AND HALF.
HE DROPPED OUT OF SCHOOL AND
DIDN'T COMPLETE SCHOOL.
AND AS FAR AS --
>> ARE YOU NOT ARGUING THAT THE
ATTORNEY FAILED TO INVESTIGATE
SCHOOL OR HOSPITAL RECORDS OR
SOMETHING LIKE THAT?
>> YOUR HONOR, I'M NOT, BECAUSE
WE HAVE NO WAY OF KNOWING IF
THEY DID, ADDITION, THE LEAD

COUNSEL IN THIS CASE, A LOT OF
HIS QUESTIONS, HIS ANSWERS WERE,
I DON'T RECALL THAT, I DON'T
REMEMBER THAT.
I DON'T RECALL THAT.
>> ANSWERS TO WHAT.
>> TO QUESTIONS HAVING TO DO
WITH HIS REPRESENTATION OF THE
CLIENT.
>> OUTSIDE OF AN EVIDENTIARY
HEARING CONFERENCE.
>> IN A OF AN EVIDENTIARY
HEARING THAT HAD TO DO WITH SOME
OF THE CLAIMS AND THE PROBLEM IS
THE ATTORNEY DESTROYED HIS FILE
IT APPEARS AT OR SHORTLY AFTER
THE MOTION FOR POSTCONVICTION
RELIEF, THE FINAL ONE, WAS
FILED.
HE WENT AHEAD AND DESTROYED HIS
FILE AN KEPT IT AROUND FOR SEVEN
YEARS AND WENT AHEAD AND
DESTROYED IT.
SO THAT NOTES HAVING TO DO WITH
CONVERSATIONS OF THAT ATTORNEY
WITH THE FAMILY MEMBERS, DO NOT

EXIST.
>> SO I GUESS WHERE I WAS GOING
WITH MY QUESTION IS, YOU DON'T
KNOW THAT THE ATTORNEY COULD
HAVE OR DID HAVE SCHOOL RECORDS
OR HOSPITAL RECORDS WITH WHICH
HE COULD HAVE CONFRONTED THE
FAMILY TO SAY, LOOK, THESE
DOCUMENTS CONTRADICT YOUR
STATEMENTS TO ME, THAT HE WAS
NOT -- THAT HE WAS NOT ABUSED.
>> WE DON'T HAVE THAT.
>>Y ARE ABOUT OUT OF TIME, IF
YOU WANT TO RESERVE YOUR TIME.
LESS THAN HALF OF YOUR TIME
LEFT.
>> FAIR ENOUGH.
THANK YOU.
>> PLEASE THE COURT, SANDRA
JAGGARD, ASSISTANT ATTORNEY
GENERAL ON BEHALF OF THE STATE,
DR. MARINA TESTIFIED AT PAGE
2922 OF THE RECORD THAT SHE
ELECTS NOT TO INTERVIEW FAMILY
MEMBERS, AND 3004, THAT SHE
DOESN'T CONSIDER IT HELPFUL.

>> THE COURT GRANTED AN
EVIDENTIARY HEARING ON SOME
CLAIMS.
>> YES.
.
>> NOT ON OTHER, NOT ON --
>> ON THIS CLAIM, THE PROBLEM
WAS THEY SAID THEY WOULD SHOW HE
GREW UP IN POVERTY, HIS FATHER
WAS AN ALCOHOLIC WHO ABUSED HIM
AND HE WAS TAKEN FOR MENTAL
HEALTH EVALUATION AS A CHILD AND
THAT HE WAS A BED WETTER, SLEEP
WALKER AND DROPPED OUT OF SCHOOL
AND WAS NOT A GOOD STUDENT IN
SCHOOL AND COUNSEL PRESENTED THE
SCHOOL RECORDS THROUGH
DR. MARINA TO SHOW HE WASN'T A
GOOD STUDENT AND DROPPED OUT OF
SCHOOL AND DR. HERRERA TESTIFIED
HE DROPPED OUT OF SCHOOL AND THE
FAMILY MEMBERS TESTIFIED THAT
THE FATHER DRANK AND IT WAS AN
EVERY DAY THING AND CAUSED A
BREAK-UP IN THE MARRIAGE, AND
THEY DIDN'T CONSIDER HIM AN

ALCOHOLIC AND IT'S NOT THAT THE
TESTIMONY WASN'T PRESENTED.
>> THEY -- DIDN'T THEY TESTIFY
THE FATHER PHYSICALLY ABUSED THE
DEFENDANT.
>> JUAN TESTIFIED HE DIDN'T
CONSIDER IT ABUSE BUT HIS FATHER
DID STRIKE THE DEFENDANT WITH A
BELT AT 2855 OF THE RECORD.
IT'S NOT THAT COUNSEL DIDN'T...
INVESTIGATE NIGHT THE
DEFENDANT'S CLAIM THAT IT GOES
MUCH BEYOND THE FACT THAT HE HIT
HIM WITH A BEMENT.
>> THE DEFENDANT -- A BELT.
>> THE DEFENDANT SUGGESTION THE
FAMILY MEMBERS DOWN PLAYED IT
BUT THE FAMILY MEMBERS WERE
CLEARLY ASKED, TESTIFYING ABOUT
IT AT TRIAL AND UNDER KAREL IF
THE CAM MEMBERS DON'T GIVE THE
INFORMATION TO THE ATTORNEY IT
IS NOTE ATTORNEY'S FAULT, NOT
INEFFECTIVE ASSISTANCE.
>> THE JUDGE FOUND THE OTHER
SIBLINGS WERE HARD WORKING AND

LAW ABIDING AND RESPECTFUL YOUNG
MEN AND WOMEN AND IS THERE
ANYTHING CONTRARY TO THAT NOW.
>> NO, IT WAS ALL ABOUT THE
DEFENDANT.
IT WASN'T ABOUT THE FAMILY
MEMBERS, THEY ARE NOT --
>> I GUESS WHAT I AM SAYING THE
ATTORNEY WHEN HE IS INTERVIEWING
THE FAMILY, SOMETIMES YOU HAVE A
VERY DYSFUNCTIONAL FAMILY, THAT
YOU ARE DEALING WITH, SO YOU MAY
CAUSE YOU TO SEARCH DEEPER BUT
THIS FAMILY HERE, ANYTHING TO
CONTRADICT THE FINDING THAT
THESE OTHER SIBLINGS --
>> NOTHING HAS BEEN ALLEGED AND
THAT WAS THEIR TRIAL TESTIMONY.
THEY ALL ADMITTED THAT THEY ARE
ALL FUNCTIONING AND HAVE JOBS
AND SO YOU HAVE WHAT BASICALLY
IS A CLAIM THAT COUNSEL WAS LIED
TO ABOUT THE -- BY THE FAMILY
ABOUT THE SEVERITY OF THE
PROBLEMS.
BUT HE PRESENTED THE PROBLEMS

AND HE PRESENTED DR. MARINA TO
EXPLAIN THAT THE REASON WHY THE
FAMILY MEMBERS' VERSION IS FAR
WORSE THAN THE DEFENDANT'S
VERSION IS THE FAMILY MEMBERS
ARE IN DENIAL.
THE JURY...  ALSO HEARD ONE OF
THE BROTHERS I BELIEVE JAVIER
TESTIFY HOW GOOD HE WAS IN
SCHOOL AND SAW THE SCHOOL
RECORDS THAT BELIED THAT AND
KNEW THE FAMILY MEMBERS WEREN'T
QUITE CORRECT ABOUT THAT.
>> WE ARE TALK ABOUT HERE, IN
RELATIONSHIP TO WHETHER OR NOT
THERE WAS ABUSE OR WAS
ALCOHOLISM.
WAS THIS AT THE TIME THAT THE
FAMILY LIVED IN CUBA OR WAS THIS
AT THE TIME -- AND HOW LONG HAVE
THEY BEEN HERE.
>> THE FAMILIES CAME OVER WHEN
THE DEFENDANT WAS 13, ALL OF THE
ALLEGED ABUSE OCCURRED IN CUBA.
LIKE I SAID, THE FAMILY ADMITTED
THE FATHER DRANK AND THAT CAUSED

A BREAK-UP OF THE FAMILY.
THEY DIDN'T CONSIDER HIM TO BE
AN ALCOHOLIC.
>> WHEN THEY MOVED TO THE U.S..
>> U.S..
>> THE FATHER WAS NOT IN THE
PICTURE ANYMORE.
>> HE WAS STILL IN THE PICTURE,
STILL SUPPORTING THE FAMILY, HE
JUST WASN'T ALLEGEDLY ABUSING
THE DEFENDANT.
AND THE DEFENDANT WAS IN HIS
MIDDLE 20s, I BELIEVE.
WHEN THIS HAPPENED AND SO YOU
HAVE MORE THAN TEN YEARS WITH
NOTHING HAPPENING TO THE
DEFENDANT.
SO YOU HAVE THIS SITUATION WHERE
COUNSEL DID INTERVIEW THE FAMILY
MEMBERS, COUNSEL PRESENTED THE
EVIDENCE, HE PRESENTED THE
DEFENDANT'S VERSION OF THE
EVIDENCE, PRESENTED IT THROUGH
AN EXPERT WHO GAVE HIM --
>> GENERALLY, I MEAN, THESE
KINDS OF CLAIMS, WHERE THEY TALK

ABOUT THE FAILURE OF COUNSEL TO,
YOU KNOW, INVESTIGATE, MITIGATE
AND PRESENT MITIGATING -- THESE
KINDS OF CLAIMS THAT HAVE BEEN
ARGUED HERE TODAY GENERALLY WE
DO HAVE EVIDENTIARY HEARINGS ON
IT, AND SO, WAS THE STATE
OPPOSED TO AN EVIDENTIARY
HEARING ON THE ISSUE OR THE
JUDGE JUST DECIDED IT WAS NOT AN
ISSUE.
>> NO, THE STATE WAS OPPOSED
BECAUSE THE EVIDENCE THAT THEY
WERE ALLEGING SHOULD HAVE BEEN
PRESENTED.
WAS EITHER PRESENTED, AND IN
WHICH CASE WE'RE DEALING WITH
CUMULATIVE EVIDENCE, WHICH --
WHICH DOESN'T GET YOU
INEFFECTIVE ASSISTANCE OR STUFF
THE FAMILY MEMBERS TESTIFIED
CONTRARY TO WHICH UNDER KAREL IS
--
>> AS I SEE IT WE HAVE PROPER --
PROFESSOR -- PROFFERS OF WHAT
THE FAMILY MEMBERS WOULD SAY.

>> WE HAVE A CLAIM IF THEY HAD
INTERVIEWED THEM BETTER THEY
WOULD HAVE AGREED MORE WITH
DR. MARINE -- MARINA AND WOULD
HAVE TESTIFIED ABOUT THE ABUSE
AND ALCOHOLISM BUT EITHER
DIRECTLY SAID IT AT THE TIME OF
TRIAL AND MAY NOT HAVE
CHARACTERIZED AS ALCOHOLISM BUT
DAD DRANK, DAD DRANK EVERY DAY
AND CAUSED MOM TO LEAVE DAD AND
PROBLEMS IN THE MARRIAGE BECAUSE
OF THE ALCOHOL, THE DEFENDANT
WAS HIT.
THEY JUST DIDN'T CONSIDER IT
ABUSE.
SO, THE PROBLEM WAS, YOU DIDN'T
HAVE ANY ALLEGATIONS, THE ONLY
THING THAT WASN'T PRESENTED WAS
THAT HE WAS A BED WETTER AND A
SLEEP WALKER AS A CHILD.
AND YOU HAVE A DEFENDANT WHO HAS
GOT PRIOR VIOLENT FELONIES,
INCLUDING THREE SEPARATE
CRIMINAL EPISODES, ONE IN WHICH
HE ATTEMPT TO ROB A BANK AND

EMPTIES HIS GONE AT A -- GUN AT
A BANK GUARD, THAT'S ON THE
FRIDAY AFTER THANKSGIVING.
YOU HAVE THIS CRIME IN DECEMBER,
BEGINNING OF DECEMBER.
AND THEN, IN THE MIDDLE OF
JANUARY WELL, HAVE HIM
KIDNAPPING CRAIG VANNESS AT
GUNPOINT AND TRYING TO ROB HIM
AND THE JURY HAS A VIVID PICTURE
OF A PERSON OUT THERE COMMITTING
CRIMES AND DURING THE COURSE OF
A FELONY, THEY WERE BUSY
COMMITTING ATTEMPTED ARMED
ROBBERY AND EMPTYING GUNS AT
PEOPLE WHO RAN A FINANCIAL US.
>> AND SHOT THEIR BODYGUARD
QUITE INTENTIONALLY.
AND THEN YOU HAVE CCP AND BEING
A BEDWETTER AND A SLEEP WALKER
AS A CHILD IS NOT GOING TO OUT
WEIGH WHAT WAS PRESENTED.
>> WHAT DID THE EVIDENCE SHOW
ABOUT WHETHER MR. SAN MARTIN
ACTUALLY SHOT AT THE VICTIM AS
OPPOSED TO THE BUSINESS OWNERS.

>> WELL, THEY ARE ALL VICTIMS.
HE SHOT AT THE BUSINESS OWNERS.
HE WAS -- MR. FRANKIE WAS IN
CHARGE OF KILLING THE BODYGUARD
AND -- WHICH WAS THEIR PLAN AND
MR. SAN MARTIN CAME OUT OF THE
VAN WITHOUT SAYING WORD AND
EMPTIED HIS GUN UNTIL IT JAMMED
AT THE CABANAS'S AND KILL FIRST
AND TAKE THE MONEY.
>> I WANTED TO BE CLEAR IT WAS
THE STATE'S POSITION AT TRIAL
AND THE EVIDENCE SHOWED IT WAS
FRANKIE WHO ACTUALLY --
>> FRANKIE IS THE ACTUALLY
KILLER AND SAN MARTIN WAS
CERTAINLY ACTIVELY INVOLVED WITH
RECKLESS DISREGARD FOR HUMAN
LIFE.
>> CAN YOU REFRESH MY COLLECTION
RECOLLECTION, WAS HE CONVICTED
OF PREMEDITATED MURDER, FELONY
MURDER OR BOTH.
>> BOTH AND THIS COURT AFFIRMED
ON DIRECT APPEAL ON BOTH.
AND AS FAR AS THE

INCONSISTENCIES BETWEEN THE
EXPERTS, THE TWO EXPERTS WERE
LARGELY CONSISTENT AND BOTH CAME
UP WITH PROBLEMS WITH JUDGMENT.
THEY BOTH CAME UP WITH HE'S
GOING TO BE A GOOD BOY WHILE
HE'S INCARCERATED.
THE ONLY DIFFERENCE IS
DR. MARINA ADDICTED SYMPTOMS HE
ATTRIBUTED TO A MOOD DISORDER
AND DR. HERRERA TESTIFIED HIS
ONLY ROLE IN THIS WAS TO
EVALUATE FOR BRAIN DAMAGE,
TESTIFIED, NO, THOSE SYMPTOMS
ARE BRAIN DAMAGE AND DOCTOR
MARINA SAID MY TEST DIDN'T SHOW
BRAIN DAMAGE BUT HIS DOES, THEN
MY CONCLUSION IS A SYMPTOM OF
THE BRAIN DAMAGE AND THEY BOTH
PRESENTED BANE DAMAGE.
>> THE OTHER INCONSISTENCY IS
ONE EXPERT SAID THAT ONE
STATUTORY MITIGATOR APPLIED BUT
NOT THE AT AND THE OTHER EXPERT
DID THE CONVERSE.
>> AND HERRERA TESTIFIED THE

REASON HE DIDN'T FIND EMOTIONAL
DISTURBANCE IS BECAUSE HE WASN'T
LOOKING FOR IT.
HE WAS ONLY LOOKING FOR CAPACITY
TO CONFORM AND MARINA DIDN'T
FIND BRAIN DAMAGE AND TEST FORD
-- BRAIN DAMAGE AND TEST FORD
IT.
>> AND THIS IS ONE OF THE
EVIDENTIARY HEARINGS.
>> NO.
NO.
BECAUSE THEY ADMITTED IT WAS A
STRATEGIC DECISION TO CALL BOTH
OF THEM.
BECAUSE YOU GET THE FAMILY
HISTORY OUT OF --
>> STRATEGIC --
>> IN THE MOTION ADMITTED IT WAS
A DEFENSE GAMBIT TO CALL BOTH OF
THE EXPERTS THOUGH THERE WAS A
MINOR INCONSISTENCY.
>> SEE, AND I COULD SEE THAT IN
YOUR BRIEF.
MY PROBLEM WITH IT IS THAT JUST
BECAUSE SOMETHING IS DONE

INTENTIONALLY, DOESN'T MEAN THAT
THAT IS REASONABLE.
AND IT DEFIES -- YOU KNOW, MY
NOTION OF HOW TO PREPARE FOR
TRIAL THAT YOU WOULD PUT ON TWO
DIFFERENT EXPERTS, WOULDN'T SHOW
EITHER OF THEM THE REPORTS, SO
THAT AT LEAST WE COULD SEE IF
THERE IS SOME CON --
CONSISTENCY.
I JUST THINK, THEREFORE, JUST
SAYING THE GAMBIT DOESN'T ITSELF
SAY IT WAS A REASONABLE
STRATEGIC DECISION AND
THEREFORE, PER SE, CAN NEVER BE
DEFICIENT PERFORMANCE.
>> BUTTS YOU HAVE COUNSEL WHO
DID INVESTIGATE.
HE WENT OUT AND HIRED THREE
MENTAL HEALTH EXPERTS AND
DECIDED WHO TO CALL AND IS
GETTING DIFFERENT THINGS OUT OF
BOTH PEOPLE, SO IT IS NOT
UNREASONABLE.
>> -- WHAT IS STRANGE TO ME,
FIRST OF ALL, THIS IS -- MR. SAN

MARTIN, ANOTHER DEATH CASE.
>> NO, HE GOT LIFE ON THAT CASE.
>> LIFE ON THE OTHER ONE AND I
GUESS THAT IS -- BRINGS UP
SOMETHING ELSE I WANT TO ASK YOU
ABOUT.
WHEN I LOOK AT -- THE SECOND
DEATH CASE --
>> IT WAS TRIED AFTERWARDS.
>> TRIED AFTER.
IT LOOKS LIKE THERE WAS PRETTY
SIGNIFICANT MITIGATION
PRESENTED.
I MEAN, SHOULDN'T THERE BE AN
EVIDENTIARY HEARING TO SEE WHY
THE SAME KIND OF MITIGATION
WASN'T PRESENTED IN THIS PENALTY
PHASE, THAN THE OTHER PENALTY
PHASE?
>> WHAT, THE MITIGATION IS
LARGELY THE SAME EXCEPT THE
FAMILY MEMBERS CHANGED THEIR
CHARACTERIZATIONS ABOUT THE
EVIDENCE AND YOU PUT ON
DR. LOURENCO INSTEAD OF
DR. HERRERA --

>> CHANGE, YOU SAID CHANGE AND
NOW TO SAY HE WAS ABUSED.
>> IT WAS ABUSE, IT WAS --
>> ISN'T THAT REALLY WHAT NEEDS
TO BE EXPLORED AND I AGREE, I
WOULD AGREE WITH YOU, THAT YOU
CAN'T SAY THAT THE FAILURE TO
ESTABLISH RAPPORT WITH THE
FAMILY COULD CONSTITUTE
INEFFICIENT PERFORMANCE BUT ON
THE OTHER HAND IT IS TRUE, AND
ESPECIALLY IN A FAMILY THAT IS A
CLOSED FAMILY, THINGS LIKE ABUSE
AND ALCOHOLISM, SOMETHING
SOMEBODY DOES, TELL ME ABOUT
YOUR FAMILY AND YOU GO, I'D LIKE
TO TELL YOU HOW MY FATHER BEAT
ME AND ALCOHOLISM.
SO YOU'VE GOT TO EXPLAIN TO A
FAMILY WHY WHAT NORMALLY YOU
THINK OF AS BAD STUFF, IS
IMPORTANT.
AND WHAT I AM CONCERNED ABOUT,
IN THE CASE IS WE DON'T KNOW
ENOUGH, BECAUSE THERE WASN'T AN
EVIDENTIARY HEARING AND WHY

SHOULDN'T THERE BE AN
EVIDENTIARY HEARING, TO EXPLORE
THIS, TO FIND OUT WHY IN THE
SECOND CASE, THEY TESTIFIED IN A
WAY THAT WAS CONSISTENT WITH THE
EXPERTS AND IN THIS CASE, IT
ALLOWED THE STATE TO GO -- NO
ONE ELSE IS SAYING THIS BUT SAN
MARTIN, THAT HE MUST BE A LIAR?
>> WELL, IT WASN'T SO MUCH NO
ONE ELSE IS SAYING THIS OTHER
THAN SAN MARTIN IT WAS THESE
PEOPLE WERE KNITTING --
ADMITTING THERE WAS ALCOHOL BUT
THEY DIDN'T CALL IT ABUSE AND
ADMITTED IT CAUSED THE BREAK-UP
OF THE FAMILY AND YOU DON'T
REALLY HAVE THAT GREAT
DIFFERENCE HERE.
BETWEEN THAT AND YOU HAVE TO
KEEP IN MIND, IN THE CASE WHERE
HE GOT LIFE IT WAS A JURY
OVERRIDE AND IN THAT CASE HE
DIDN'T BEHAVE GUN AND DIDN'T
FIRE A GUN.
HIS JOB WAS TO GO AND PICK UP

THE BANK TRAY.
AND IF YOU WANTED TO START
CONSIDERING WHAT HAPPENED IN
THAT CASE THEN YOU ADD THE
MURDER OF A POLICE OFFICER, AS
AGGRAVATION IN THE CASE.
WHICH ONLY MAKES THE SITUATION
WORSE.
I MEAN, THEY ALLEGED CUMULATIVE
MITIGATION.
THEY ALLEGE MITIGATION --.
>> AGGRAVATORS.
>> NO, TRIED AFTERWARDS AND IT
WAS NOT AVAILABLE AS AN
AGGRAVATOR.
>> THE PRECEDENT, IT WAS
RETRIED, NO PREJUDICE BECAUSE
YOU HAVE -- THE -- THAT IS A
DIFFERENT ISSUE.
YOU WANT -- DO YOU WANT TOP
ADDRESS THAT, WOULD THERE BE NO
PREJUDICE?
BECAUSE I'M REALLY -- I REALLY
FEEL BASED ON OUR CASE LAW THAT
THE DEFICIENT PERFORMANCE JUST
CAN'T BE FIGURED OUT WITHOUT AN

EVIDENTIARY HEARING, WITHOUT
MORE -- MORE AMENABLE TO YOUR
BEST ARGUMENT ABOUT WHY THERE IS
NO --
>> THERE IS NO PREJUDICE BECAUSE
YOU HAVE EVIDENCE THAT MERELY A
VARIATION OF WHAT YOU ALREADY
HAD.
GOT HIM A 9-3 DEATH
RECOMMENDATION AND YOU HAVE THIS
MAN, WHO WENT OUT THE DAY AFTER
THANKSGIVING, AND COMMITS AN
ARMED ROBBERY AT A BANK WHERE
THEY WALK UP AND JUST OPEN FIRE
ON A ELDERLY SECURITY GUARD
TRYING TO GET THE MONEY FROM
HIM.
YOU HAVE THIS CRIME COMMITTED IN
THE FIRST WEEKEND OF DECEMBER
WHERE THEY SHOW UP, FULLY ARMED
TO THE TEETH, FULLY PLANNED
ROBBERY WHICH IS WHY THE
MITIGATION ABOUT THE MENTAL
HEALTH GETS REJECTED BECAUSE
THIS ISN'T SOMEBODY WHO IS
ACTING IMPULSIVE.

THESE PEOPLE HAD BEEN PLANNING
THE ROBBERY SINCE THE SUMMER.
THIS WAS A FIVE-MONTH PLAN.
THEY --
>> FRANKIE WAS THE LEADER.
>> FRANKIE AND SAN MARTIN WERE
ACTIVELY INVOLVED IN THE
PLANNING OF THE CRIME WAS THE
TESTIMONY.
I MEAN, IT'S NOT HE WAS INVOLVED
-- HE WAS INVOLVED.
HE IS OUT THERE FOR FIVE MONTHS
PLANNING THE CRIME AND SO NOW
YOU ARE SAYING, WELL, HE HAS
THESE EMOTIONAL PROBLEMS THAT
CAUSED HIM TO ACTED IMPULSIVELY.
WHERE!
>> IN THE SUBSEQUENT TRIAL, WAS
THERE -- WERE THERE STATUTORY
MITIGATORS FOUND?
>> I DON'T RECALL.
I KNOW IT WAS A JURY OVERRIDE
AND I KNOW THAT THE BIG PROBLEM
WAS HIS ROLE IN THE CRIME, HE
DIDN'T HAVE A GUN.
HE WASN'T ONE OF THE SHOOT, ALL

HE DID WAS RIDE IN ONE OF THE
CARS, JUMP OUT OF THE CAR, WHEN
FRANKIE AND GONZALES STARTED
SHOOTING AT THE OFFICER, RAN UP
AND GRAB THE CASH AND RUN BACK
TO THE CAR AND LEAVE.
SO YOU DON'T HAVE HIM AS AN
ACTIVE PARTICIPANT SITTING THERE
FIRING AWAY WITH THE GUN.
LIKE YOU DO IN THIS CASE.
YOU'VE GOT THIS CASE, WHICH IS
COMMITTED -- THEY OPENED FIRE
AND DIDN'T EVEN GIVE THE PEOPLE
A CHANCE TO HAND OVER THE MONEY
WITHOUT BEING SHOT AT.
THEY FIRED -- THERE WERE 29
DIFFERENT PROJECTILES FOUND AT
THE -- PROJECTILES AT THE CRIME
SCENE AND THEY AMBUSHED THE
PEOPLE TO MASSACRE THEM AND THE
FACT IS THAT THOSE PEOPLE ARE
ALIVE IS AN ACT OF GOD, ONE OF
THE BULLETS WENT THROUGH
MR. CABANAS, SR.'S HEAD RITE HIS
TRUCK BEFORE HE DIED AND YOU
HAVE THAT DURING THE PURCHASE OF

A ROBBERY, YOU'VE GOT CCP, AND
THESE PEOPLE WENT OUT THERE
FULLY PLANNING TO KILL THE MAN
AND SO YOU HAVE BASICALLY A
SMALL -- KILL MR. LOPEZ AND YOU
HAVE A SMALL VARIATION OF WHAT
WAS PRESENTED AND IT IS NOT THAT
IT WASN'T PRESENTED AND THERE IS
YOUR PROBLEM AND THAT'S WHY IT
IS CUMULATIVE.
IT IS CONTRARY TO WHAT THE
FAMILY WAS GIVING TO THE EXTENT
THERE ARE SLIGHT SHADES IN HERE
AND...  THERE WAS NOTHING THERE
TO HAVE AN EVIDENTIARY HEARING
ON.
COURT HAS NO FURTHER QUESTIONS,
THE STATE RESPECTFULLY REQUESTS
YOU AFFIRM.
>> REBUTTAL?
>> THANK YOU.
YOUR HONOR.
>> WOULD YOU ADDRESS THAT ISSUE
OF PREJUDICE?
BECAUSE THAT IS WHAT -- ANOTHER
HURDLE THAT YOU HAVE TO JUMP

OVER.
EVEN ASSUMING THAT YOU ARE
CORRECT.
HOW IS THIS UNDERMINING OUR
CONFIDENCE IN THE OUTCOME, GIVEN
THE AGGRAVATORS INCLUDING CCP
AND PRIOR VIOLENT FELONY, AND
THE FACT THAT ON A RETRIAL, THEY
WOULD INTRODUCE THIS OTHER -- OR
CAN THEY.
>> YOUR HONOR THE ISSUE LIES,
HOWEVER, THAT -- IF THE
DEFENDANTS ARE GIVEN' CHANCE TO
ADEQUATELY AND PRESENT HIS
MENTAL CONDITION, THE -- IN THE
OTHER TRIAL THE JURY, THERE WAS
A JURY OVERRIDE.
SO THAT -- IN THAT OTHER TRIAL,
THERE WAS A MORE THOROUGH
PRESENTATION, THEREFORE, I DON'T
BELIEVE --
>> WELL, IN THAT OTHER TRIAL
THERE WAS NO STATUTORY
MITIGATION.
CORRECT?
>> I'M -- I DON'T RECALL RIGHT

NOW, YOUR HONOR, I'M SORRY.
>> WELL, THE OPINION, OUR
OPINION INDICATES THAT.
>> RIGHT.
>> PLUS, IN THAT CASE, SAN
MARTIN WAS THE GETAWAY DRIVER.
CORRECT?
>> CORRECT.
>> HE DIDN'T FIRE A SHOT.
IN FACT HE DIDN'T EVEN COME UP
TO THE BANK.
>> CORRECT.
>> IN THAT CASE, CORRECT?
>> CORRECT.

>> GONZALEZ AND FRANKIE WERE THE
ACTUAL SHOOTERS IN THAT CASE.
THAT WAS KIND OF A WILD WEST
SHOOTOUT, IF I REMEMBER
CORRECTLY.

>> I THINK BOTH OF THESE WERE,
BUT YES.

>> WAS THIS CASE USED AS AN
AGGRAVATOR IN THAT CASE?
>> JUDGE, I'M SORRY, I DO NOT
RECALL THAT ANSWER.
HOWEVER, I WOULD LIKE TO ADDRESS
THE ISSUE DEALING WITH THE
GOVERNMENT'S QUALIFICATION OF
THAT.
THERE WERE SUBTLETIES OR
VARIANCES OR MINOR DIFFERENCES
BETWEEN THE TESTIMONY OF THE
FAMILIES IN ONE AND THEN THE
OTHER.
THE ISSUE HERE HAS TO DO WITH
QUALITY, THE ISSUE HERE HAS TO
DO WITH THE PRESENTATION OF THE
ABUSE THAT MR. SAN MARTIN
SUFFERED WHEN HE WAS A CHILD.
>> WELL, LET'S SAY THAT THE
MOTHER TESTIFIES THAT THE
FATHER, YOU KNOW, REALLY ABUSED
HIM, BEAT HIM REGULARLY.
SHE'S GOING TO BE IMPEACHED WITH
HER PRIOR TESTIMONY AND SAY YOU
WERE UNDER OATH IN THAT CASE,
AND YOU TESTIFIED THAT THE ONLY
THING HE DID WAS BEAT HIM WITH A
BELT.
ISN'T THAT ALL GOING TO COME
OUT, AND ISN'T SHE GOING TO BE
ABLE TO BE IMPEACHED ON THAT?
>> YES.
>> SO DOESN'T THAT SIGNIFICANTLY
REDUCE THE FORCE OF THE NEW
TESTIMONY?
>> YOUR HONOR, BUT SHE WOULD
HAVE AN OPPORTUNITY TO EXPLAIN,
SHE WOULD HAVE AN OPPORTUNITY TO
EXPLAIN.
THE PROBLEM IS, AND SHE ALSO HAS
SUBSEQUENT TESTIMONY THAT SHE
GAVE THAT WOULD BE CONSISTENT
WITH THAT TESTIMONY.
THE ISSUE LIES, AND THE OTHER
PROBLEM HAS TO DO WITH THE
PRESENTATION OF THE WITNESSES.
THE, WHAT IS CALLED A GAMBIT
SOUNDS MORE LIKE A GAMBLE OF
JUST THROWING TWO WITNESSES, TWO
EXTRA WITNESSES THAT HAVE -- IT
DOESN'T APPEAR THAT THEY MET,
THAT THE REPORT OF ONE WAS GIVEN
TO THE OTHER AND SAY, LISTEN,
YOU KNOW, HOW DOES THIS AFFECT
YOUR OPINION, IF ANY, PRIOR
TO --
>> WELL, WHAT THE GAMBIT DID,
THOUGH, IS ALLOW THE LAWYER TO
PRESENT TWO EXPERTS THAT COULD,
IN COMBINATION, TESTIFY TO TWO
STATUTORY MENTAL HEALTH
MITIGATORS.
>> YES, BUT IT ALSO GAVE THE
IMPRESSION, FRANKLY, THAT THEY
WERE MAKING IT UP BECAUSE YOU
HAVE ONE GUY, YOU HAVE MIRANDA
SAYING, WELL, IF THIS GUY
FOUND -- THEN I HAVE TO CHANGE
MY OPINION 180 DEGREES, AND YOU
HAVE THE PROSECUTOR, MR.
KASTRENAKES, ACTUALLY GETTING UP
IN FRONT OF THE JURY AND TELLING
THE JURY, LOOK AT THIS.
YOU KNOW, SHE CHANGED HER MIND
180 DEGREES.
SHE COMPLETELY CHANGED IT RIGHT
THERE, RIGHT IN FRONT OF YOU.
AND THAT'S SOMETHING YOU HAVE TO
BE EXTREMELY CAREFUL IN FRONT OF
A JURY WHEN YOU'RE PRESENTING
PSYCHOLOGISTS BECAUSE A LOT OF
PEOPLE HAVE PROBLEMS RECOGNIZING
THE SCIENCE OF PSYCHOLOGY.
SO WHAT WAS THE REASON, HOW CAN
YOU SAY IT WAS STRATEGY, HOW CAN
YOU ATTRIBUTE IT TO STRATEGY TO
PRESENT TWO EXPERTS THAT WIND UP
CONTRADICTING EACH OTHER THAT
ONE HAS TO CORRECT THE OTHER,
AND THEN THEY WOUND UP
CONTRADICTING THE TESTIMONY, THE
INFORMATION PROVIDED BY THE
DEFENDANT, THEIR CLIENT, THEIR
PATIENT INSOFAR THE FAMILY.
ALL THESE THINGS NEEDED TO HAVE
BEEN PUT TOGETHER TO AT LEAST IF
THE FAMILY KEEPS SAYING, YOU
KNOW WHAT?
IN THIS TRIAL THE FAMILY KEPT
SAYING IT WASN'T VIOLENCE, IT
WASN'T VIOLENCE, AT LEAST
ADDRESS IT.
DO NOT HAVE IT COME OUT IN WHAT
APPEARS TO BE AN UNCONTROLLED
SURPRISE IN FRONT OF A JURY.
>> WITH OUR QUESTIONING, WE'VE
GONE BEYOND THE ALLOTTED TIME.
THANK YOU VERY MUCH.
WE'LL TAKE THE CASE UNDER
ADVISEMENT.
THE COURT WILL TAKE ITS MORNING
RECESS.
>> ALL RISE.