Manuel Antonio Rodriguez v. State of Florida

SC05-859 | SC07-1314

THE NEXT CASE ON OUR CALENDAR
THIS MORNING IS RODRIGUEZ
VERSUS STATE.
>> GOOD MORNING.
IF IT MAY PLEASE THE COURT.
MY NAME IS ROSEANNE ECKERT.
I'M HERE WITH ALICIA DEAN ON
BEHALF OF MANUEL RODRIGUEZ
FOLLOWING DENIAL FOR MOTION ON
POST-CONVICTION RELIEF.
WE'RE HERE TODAY MR.^RODRIGUEZ
DID NOT RECEIVE A FULL AND FAIR
HEARING ON HIS CLAIMS BELOW
THAT TRIAL WAS FRAUGHT WITH
CONSTITUTIONAL ERROR.
>> YOU'VE GOT A VERY SHORT
PERIOD OF TIME.
AND YOU'VE GOT AS MANY ISSUES I
EVER SEEN.
HEAD RIGHT AT THEM.
>> THE PRIMARY ISSUE I WOULD
LIKE TO FOCUS ON THE BRADY AND
GIGLIO VIOLATIONS FOCUS ON
LUIS RODRIGUEZ, THE STAR WITNESS AT
TRIAL.
WITHOUT LUIS
RODRIGUEZ, STATE OF FLORIDA
WOULD TO HAVE --
>> HOW DID THE LETTERS COME TO
ATTENTION DEFENSE COUNSEL AND
WHEN DID THEY COME?
>> TALKING ABOUT THE SERVICE --
>> SERVICE LETTER.
>> WE DID NOT RECEIVE A HEARING
ON THE LETTERS.
AS FAR AS I KNOW, TRIAL COUNSEL
NEVER SAW THE LETTERS.
THEY WERE NOT TURNED OVER TO
TRIAL COUNSEL.
>> WHAT IS THE ALLEGATION IN
THE MOTION AS TO WHEN THESE
LETTERS FIRST SURFACED?
>> ALLEGATION NOTICE MOTION
THAT THE LETTERS WERE NEVER
TURNED OVER TO TRIAL COUNSEL
SETTLE DURING THE PUBLIC
RECORDS PROCESS THE SELL FOR
MR.^RODRIGUEZ AT TIME REVIEWED
THE FILES TURNED OVER TO OUR
OFFICE BY THE STATE OF FLORIDA.
AT TIME WAS ACTUAL FILES.
IT WAS REPOSITORY AND THOSE
LETTERS WERE FOUND IN THE STATE
ATTORNEY FILE.
>> THEY CAME OUT IN THE PUBLIC
RECORDS EXAMINATION OF
POST-CONVICTION.
>> CORRECT.
IN THE AMENDED MOTION THAT WAS
FILED IN 2001 THERE WAS AN
ALLEGATION THAT THE STATE
SHOULD HAVE TURNED THESE
LETTERS OVER.
HOWEVER AT THE TIME,
MR.^SERVICE WAS NOT IN THE
COUNTRY.
HE APPARENTLY, WAS IN PRISON
AND THEN HE WAS DEPORTED.
THERE WAS NO HEARING GRANTED.
NO EXPLANATION WHY HEARING WAS
NOT GRANTED EVEN IF CAN HE DID
NOT HAVE MR.^SERVICE.
WE HAD THE LETTERS.
WE WERE CERTAINLY ENTITLED TO
QUESTION THE PROSECUTOR WHY IF
HE HAS LETTERS, THAT SAY, OR
ACCUSE THE CODEFENDANT OF
LYING, THAT, TRIAL COUNSEL
SHOULD HAVE RECEIVED THOSE
LETTERS.
>> THIS CLAIM IS, YOU KNOW, I
THINK THERE IS POTENTIAL MERIT
IN THIS CLAIM.
IT IS RAISED IN PARAGRAPH 44 OF
ONE OF YOUR MOTIONS AND IT'S
VERY HE DETAILED.
IF WE, REMAND FOR AN
EVIDENTIARY HEARING ON THIS, IF
ALL WE GET IS THAT THE YOU
KNOW, THEY HAD THE LETTERS.
IF YOU DON'T, YOU NEED TO HAVE
SERVICE'S TESTIMONY.
HE IS IN PERU.
>> CORRECT.
>> HOW IS IT IT A PRACTICAL
MATTER HOW ARE YOU INTENDING TO
GET HIS TESTIMONY UNDER OATH?
ALLOW RELINQUISHMENT OR REMAND
ON THIS BASIS?
>> ASSUMING WE HAVE TO DO THAT
WE WOULD MAKE EVERY EFFORT TO
GET HIM HERE FROM PERU.
I DON'T KNOW WE CAN SINCE WAS
DEPORTED WE WOULD COULD FILE
MOTION TO TAKE HIS TESTIMONY
AND GO DOWN AND TAKE
DEPOSITION.
WE COULD HAVE THE AFFIDAVIT PUT
IN EVIDENCE.
I DON'T NECESSARILY AGREE WE
HAVE TO HAVE MR.^SERVICE'S
TESTIMONY.
>> IN TERMS OF THIS WHOLE CASE
IT IS DOES RISE AND FALL THERE,
IS CONFESSION THAT HE IS
LOOKOUT SO WE'VE GOT HIM
INVOLVED BUT, IT'S PRETTY
POWERFUL WHAT'S IN THE
AFFIDAVIT.
CLEARLY AN AFFIDAVIT WOULDN'T
COME IN IF THERE IS A NEW
TRIAL.
SO, IT'S IMPORTANT TO ME AT
LEAST IN, THIS IS CASE GONE ON
FOR A LONG TIME, TO KNOW THE
PRACTICALITIES OF THIS.
IF IT'S JUST A AFFIDAVIT COMING
IN AND WE HAVE A NEW PENALTY
PHASE AND SERVICE ISN'T THERE,
ISN'T JUST, WASTE AD WHOLE LOT
OF ENERGY.
SO I REALIZE YOU'RE NOT
PREPARED TO SAY EXACTLY WHAT
HAPPEN BUT, MAYBE, IF, AND I'M
JUST, THINKING OUT LOUD, IF WE
WERE JUST TO RELINQUISH ON THE
ISSUE OF SERVICE AND SEE IF YOU
CAN GET THIS TESTIMONY
PERPETUATED OR HAVE
HIM COME WE WOULD HAVE A FULLLY
PICTURE AND IS HE CREDIBLE. WHAT
HE IS SAYING THAT LUIS IN FACT
SAID HE WAS LYING TO SAVE HIS
OWN LIFE?
>> RIGHT.
I THINK CERTAINLY WOULD MAKE
EVERY EFFORT TO GET MR.^SERVICE
HERE OR HIS TESTIMONY IN THE
FORM OF A DEPOSITION.
ALTHOUGH I WOULD LIKE TO POINT
OUT IN THE FLOYD CASE THERE WAS
SIMILAR ISSUES IN TERMS OF
WHETHER THE NEW INFORMATION
WOULD BE ADMISSIBLE AT TRIAL.
I THINK THE REAL FOCUS NOT
NECESSARILY, WHAT WOULD HAPPEN
AT A RETRIAL.
CERTAINLY THE STATE WOULD NOT
BE ABLE TO MAKE THE SAME
ARGUMENTS THAT MADE AT MANUEL
RODRIGUEZ'S TRIAL CONERNING THE
REASON FOR VISITS AND LUIS'S
CREDIBILITY.
THE ISSUE IS WHETHER THE
INITIAL TRIAL WAS RELIABLE.
>> HOW WOULD YOU USE THE
LETTERS WITHOUT HAVING
TESTIMONY FROM SERVICE?
>> AT TRIAL OR DURING
EVIDENTIARY HEARING?
>> AT RETRIAL.
>> THIS IS INFORMATION
MR.^LAESER REGARDING
RELIABILITY OF HIS WITNESS.
>> UNDERSTAND THE BRADY PART OF
IT.
I DON'T UNDERSTAND OR I'M
TRYING TO UNDERSTAND HOW
IMPEACHMENT OF LUIS THIS WOULD
BE USED, THESE LETTERS WOULD BE
USED JUST, LETTERS THEMSELVES?
WHAT'S YOUR --
>> LUIS WOULD CERTAINLY BE
QUESTIONED ABOUT THIS.
WITH RESPECT TO THE EVIDENTIARY
HEARING.
LUIS -- THE TRIAL JUDGE'S
DETERMINATION OF ISSUES WERE
MADE WITHOUT REGARD TO
ALLEGATIONS IN THE SERVICE
LETTERS.
I DON'T THINK I HAVE TO SAY I
WOULD HAVE MR.^SERVICE
AVAILABLE AT A NEW TRIAL IN
ORDER TO GET RELIEF IN THIS
CASE.
CERTAINLY --
>> UNDER BRADY THERE IS A
PREJUDICE PRONG.
>> THAT'S THE PREJUDICE AT THE
PRIOR TRIAL.
AT PRIOR TRIAL CERTAINLY
MR.^SERVICE WAS IN THE COUNTRY.
HE WAS INCARCERATED IN THE
STATE OF FLORIDA.
SO HIS TRIAL WAS NOT RELIABLE.
TRIAL ATTORNEY CERTAINLY WOULD
HAVE USED INFORMATION THAT CAME
FROM MR.^SERVICE THAT GOES TO
THE VERY ALLEGATIONS THAT THEY
WERE TRYING TO PROVE AT TRIAL.
>> YOU'RE SAYING AT VERY LEAST
RIGHT NOW YOU'RE NOT ASKING FOR
REVERSAL FOR NEW PENALTY -- YOU
MAY BE BUT AT VERY LEAST
SERVICE ISSUE REVERSAL, THOSE
WERE SUMMARILY DENIED.
>> YES.
>> WE'VE GOT TO UNDERSTAND THE
RECORD.
ON ITS FACE THERE IS CLEAR
BRADY VIOLATION.
NOT TURNING OVER FAVORABLE
INFORMATION ABOUT THE STAR
WITNESS.
AND, WHAT OTHER, YOU WERE GOING
TO TALK ABOUT THE, THE CLAIM IN
WHICH EVIDENTIARY HEARING WAS
GRANTED AND THE JUDGE DENIED
THE CLAIM BECAUSE THERE YOU'VE
GOT, IF YOU'VE JUST HAVE THAT
ALONE, WHICH IS THAT LUIS IS
NOW SAYING, I GOT ALL THESE
SEXUAL FAVORS.
I GOT TO GO OUT AND I DID IT
WITH THE FULL KNOWLEDGE AND
ENCOURAGEMENT OF THE POLICE AND
THE STATE ATTORNEY.
THEY WERE DOING IT TO MAKE HIM
HAPPY.
ALL RIGHT.
SO LET'S ASSUME THAT'S TRUE.
>> OKAY.
>> HOW IS THAT, IN TERMS OF,
IT'S STILL NOT GOING TO
MOTIVATE SOMEBODY TO PLEAD
GUILT TO, WHERE HIS SENTENCE
STILL IS, REST OF HIS LIFE IN
PRISON, MOTIVATE HIM TO LIE
ABOUT MANUEL'S INVOLVEMENT.
I MEAN I DON'T SEE IT AS BEING
-- IT'S IMPEACHMENT BUT
CERTAINLY NOT AT LEVEL OF THE
SERVICE ISSUE.
SO IF YOU'RE JUST TALKING ABOUT
THAT CLAIM, TELL ME YOUR BEST
ARGUMENT AS TO WHY THAT WOULD
UNDERMINE OUR CONFIDENCE IN THE
OUTCOME TO HAVE, FIRST, FIRST
THERE WAS A CREDIBILITY
FINDING, THAT SECOND AS TO HOW,
EVEN ASSUMING, IT'S, THAT LUIS
IS TRUTHFUL, SO WHAT?
>> THE CREDIBILITY FINDING WAS
MADE WITHOUT REGARD TO LOOKING
AT ALL THE ALLEGATIONS AND ALSO
WITHOUT LOOKING AT SERVICE
LETTER.
I DON'T NECESSARILY THINK WE
RELY ON CREDIBILITY OF THE
TRIAL COURT.
>> ACTUALLY, I'M GOING TO ASK
MISS JAGGARD ABOUT THIS I
ACTUALLY THINK THIS MAY BE
SOMETHING IN YOUR FAVOR BECAUSE
THE TRIAL JUDGE NOW FOUND THAT
LUIS IS NOT CREDIBLE.
>> RIGHT.
>> ABOUT A MATERIAL POINT.
AND, WITH CONNECTION WITH THE
SERVICE LETTERS IT ACTUALLY MAY
BE SOMETHING THAT WOULD BE YOU
KNOW, THAT CONCERNS ME THAT A
KEY WITNESS IS NOW, ACCORDING
TO THE JUDGE, LYING ABOUT
SOMETHING HE WOULD HAVE NO
REASON TO LIE ABOUT.
UNTIL A WAY IT'S A TWO-EDGED
SWORD ON THIS.
>> TAKE US TO THE SECOND ISSUE,
RIGHT.
LUIS RODRIGUEZ WAS NOT
CREDIBLE.
HE WAS INVOLVED IN THIS CRIME
BUT WE DON'T KNOW ALL THE
FACTS.
LIKE MANNY RODRIGUEZ GAVE VARIOUS
STATEMENTS.
LUIS RODRIGUEZ TOLD HIS
GIRLFRIEND HE KILLED A
LIMOUSINE DRIVER.
HIS VERSION OF WHAT HAPPENED
CHANGED NUMEROUS TIMES OVER THE
YEARS.
BRINGS US SECOND ISSUE
REGARDING LUIS'S BROTHER,
ISIDORO RODRIGUEZ.
THERE WERE MANY REASONS BECAUSE
OF EVIDENTIARY RULINGS THAT
ISIDORO RODRIGUEZ COMMITTED
CRIME.
LUIS RODRIGUEZ LIVED NEXT DOOR.
EVEN AT TIME OF THE
INVESTIGATION THAT ISIDORO
RODRIGUEZ WAS A SUSPECT.
HE WAS EVENTUALLY CLEAR OF ALL
WRONGDOING AND TESTIFIED
AGAINST MANUEL RODRIGUEZ.
WE DON'T KNOW THAT LUIS
RODRIGUEZ WAS PROTECTING
ISIDORO, THERE WAS EVIDENCE
THAT IS THE CASE THAT WOULD BE
MOTIVATION FOR HIM TO LIE NOT
ABOUT HIS OWN INVOLVEMENT OR
WHY HE WOULD PLEAD GUILTY BUT
IT IS A REASON HE WOULD LIE
ABOUT ISIDORE RODRIGUEZ.
>> MANUEL LIVING IN SAME
APARTMENT BUILDING AS JOSEPHS
CORRECT?
>> CORRECT.
>> HIS SON OR COOKIE'S SON,
WASHED CARS FOR MR.^JOSEPH?
>> YES.
>> IT IS, IT'S ILLOGICAL AT
VERY LEAST TO SAY THAT A PERSON
FROM ORLANDO IS GOING TO KNOW
SOMETHING ABOUT THE JOSEPHS
UNLESS MANUEL TELLS THEM.
I MEAN, WHERE, -- IS THE THEORY
SOMEHOW WITHOUT MANUEL'S
INVOLVEMENT THEY WOULD JUST,
SOMEHOW PICK OUT RANDOMLY
SOMEBODY WHO JUST HAPPENS TO BE
MANUEL'S NEIGHBOR?
>> WELL, THAT, EVEN IF THAT'S
TRUE THAT STILL JUST,
CIRCUMSTANTIAL EVIDENCE
INVOLVING MANUEL RODRIGUEZ'S
INVOLVEMENT.
CERTAINLY LUIS RODRIGUEZ AND
ISIDORO RODRIGUEZ WERE BOTH IN
MIAMI.
THEY HAD VISITED THEIR SISTER.
THIS EVIDENCE THAT THEY HAD MET
THE JOSEPHS.
IT'S NOT LIKE THEY DIDN'T HAVE
ANY WHO THE JOSEPHS WERE OR
THEY HAD NEVER BEEN AT THAT
APARTMENT BEFORE.
>> I THOUGHT YOUR STRONGEST,
STRONG ISSUE, I JUST IT'S NOT
REALLY DEVELOPED, IS ABOUT THIS
JEWELRY AND THE COINS BEING
FOUND UNDER THE HOUSE OR
TRAILER.
>> RIGHT.
>> OF THE MOTHER OF LUIS AND IS
SID DOOR ROW, ISIDORO WHO
HAPPENS TO BE STEPMOTHER OF
COOKIE.
>> RIGHT.
>> SHE CALLS SID DOOR ROW COMES
DOWN TO GET THIS WHATEVER IT IS
AND ISIDORO TAKES TO ORLANDO
AND THROWS IT AWAY.
>> NONE OF THIS MAKES SENSE.
>> WHAT IS IT NOW -- DOESN'T
MAKE SENSE BUT HAVE YOU DEVELOP
ANY EVIDENCE THAT ISIDORO DID
SOMETHING ELSE WITH THESE, AND
FIRST OF ALL DO WE KNOW WHAT IN
FACT WAS STOLEN FROM THE
JOSEPHS?
WAS THERE ANY EVIDENCE THERE
WAS IN FACT SIGNIFICANT AMOUNT
OF MONEY IN TERMS OF COINS AND,
JEWELRY THAT WERE STOLEN?
>> THERE WAS COINS AND, THERE
WAS AT LEAST A BUFFALO NICKEL
AND THERE WAS SOME JEWELRY.
THERE WASN'T REALLY SIGNIFICANT
AMOUNT OF MONEY.
IT WAS MAINLY JEWELRY AND THE
COIN COLLECTION.
THERE WAS EVIDENCE IN THE
DEPOSITIONS, THAT, WE, ALED,
TRIAL COUNSEL SHOULD HAVE
QUESTIONED WITNESSES ABOUT,
THEIR STORY WAS STRAIGHT
REGARDING THE JEWELRY.
WE WERE NOT ABLE TO DEVELOP
THAT CLAIM AT THE EVIDENTIARY
HEARING BECAUSE THE TRIAL
JUDGE, WE DID NOT TRY TO PUT
THE DEPOSITIONS IN AS
SUBSTANTIVE EVIDENCE.
WE SIMPLY WANTED TO SAY THESE
DEPOSITIONS WERE IN YOUR FILE,
SO WE WANT TO KNOW WHAT
INFORMATION YOU HAD IN TERMS OF
THE QUESTIONS THAT YOU ASKED
THE WITNESSES.
THIS IS ON NUMEROUS DIFFERENT
ISSUES, REGARDING THE JEWELRY.
REGARDING THE FACT THERE WAS
EVEN EVIDENCE THAT LUIS'S WIFE
SAID THE POLICE TOLD THEM TO,
PUT HAPPY FACE STICKER OVER THE
PEOPLE OR NAPKIN OFFER THE
PEOPLE SO THEY COULD HAVE --
>> I'M FOCUSING ON ISSUE
BECAUSE --
>> WE DIDN'T DEVELOP THAT.
>> ISIDORO PAWNED COINS OR
JEWELRY, THAT WOULD PUT THE
CASE IN A WHOLE DIFFERENT
LIGHT.
AGAIN, IT DOESN'T, MY LOGICAL
SENSE SAYS, WHY WOULDN'T HE
JUST HAVE CALLED THE MOTHER
CALLED LUIS TO SAY, COME GET
WHATEVER THIS BAG IS AND THROW
IT AWAY.
WHY WOULD YOU HAVE ISIDORO DO
IT?
SHORT OF THAT BEING, THAT --
>> HASN'T BEEN DEVELOPED ON THE
RECORD.
>> YOU HAVE OR HAVE YOU ALLEGE
ANYTHING ABOUT THE JEWELRY THAT
IS, WOULD PUT THE CASE IN
DIFFERENT LIGHT JUST ON ISSUE
OF ISIDORO'S INVOLVEMENT?
>> WE ALLEGE THERE WAS EVIDENCE
THAT THE FAMILY ACTUALLY DID
RETAIN THE JEWELRY BUT WE WERE
NOT ABLE TO PROVE THAT BELOW.
>> YOU HAD, WAS THAT A CLAIM?
>> YES.
>> WHICH CLAIM?
>> IT WAS IN CLAIM ONE.
IT WAS ONE OF THE FACTUAL
ALLEGATIONS IN CLAIM ONE GOING
TO INEFFECTIVE ASSISTANCE OF
COUNSEL.
CLAIM ONE WAS INEFFECTIVE
ASSISTANCE OF COUNSEL BRADY
ISSUE ISSUE.
>> THE PROMISE, YOU HAVE TOO
MUCH GOING HERE ALMOST LIKE
TRYING TO TAKE THIS MOUNTAIN OF
INFORMATION, SEEING ARE THERE
ANY GEMS OF, YOU KNOW, GOLDMAN
SACHS FROM YOUR POINT OF --
GEMS FROM YOUR POINT OF VIEW
MAKE IT SIGNIFICANT.
WHERE, IF I LOOK AT THE OR THE
MOTION IS THE ISSUE TO DO WITH
THE JEWELRY?
>> ON THE JEWELRY --
>> IF YOU CAN'T FIND IT READILY
YOU CAN EXPLAIN IT ON --
>> I CAN GET YOU THE CITE ON
THE JEWELRY IN A MINUTE.
I THINK THE PRIMARY ISSUE WITH
ISIDORO, THERE WAS EVIDENCE HE
WAS INVOLVED IN THIS CRIME AND
WE WERE DENIED THE ABILITY TO
PROVE WHAT TRIAL COUNSEL KNEW
AND HOW THEY LOOK INTO THAT.
THERE IS ALSO EVIDENCE WE WERE
DENIED A HEARING REGARDING
ISIDORO AND HIS INVOLVEMENT
WITH POLICE.
HIS INVOLVEMENT AS INFORMANT.
>> THAT WOULD BE IMPEACHMENT.
>> YEAH.
>> IF YOU GET THAT HEARING,
WHICH HE WAS AN INFORMANT.
HE MIGHT HAVE BEEN GIVEN
FAVORABLE TREATMENT.
ALL THAT DOES IS IMPEACHES
ISIDORO BUT DOESN'T POINT TO
HIM AS, THERE IS NOTHING WHERE
YOU FOUND HIS ALIBI IS NOT
RELIABLE.
YOU HAVEN'T ALLEGED INFORMATION
THAT ISIDORO WAS, YOU KNOW, IN
FACT, IN MIAMI AT THE SAME OF
THE CRIME.
>> WE DID, ALLEGE THAT THERE
WAS INFORMATION IN DEPOSITION
THAT LUIS AND ISIDORO LEFT
ORLANDO AND CAME DOWN.
>> SHE NEVER, SHE SPECULATES
ABOUT HOW HE GOT DOWN THERE.
>> I WOULD AGREE BUT I THINK
OUR ALLEGATION WHY TRIAL
COUNSEL DID NOT FOLLOW UP ON
THAT INFORMATION GIVEN THEY
KNEW HE HAD A VAN.
HE LIED ABOUT HAVING A VAN.
THIS IS INFORMATION THAT TRIAL
COUNSEL DID NOT DEVELOP AND
THAT WE WANTED TO ASK ABOUT AT
THE EVIDENTIARY HEARING.
BUT THE BIGGER ISSUE I THINK IS
LUIS RODRIGUEZ AND HOW THE JURY
WAS MISLED REGARDING THE REASON
THAT LUIS RODRIGUEZ GOT ALL OF
THESE SPECIAL FAVORS.
SOME OF THIS CAME OUT AT TRIAL
AND DEFENSE ATTORNEYS TRIED TO
SAY, LISTEN TO ALL THESE
SPECIAL FAVORS.
HE IS A LIAR.
HE IS NOT TELLING THE TRUTH.
AND ON THE RECORD, THE
PROSECUTOR SAID, WELL THERE WAS
REASON TO HAVE HIM, YOU KNOW,
FOR US TO GIVE HIM ALL THESE
VISITS.
TO THE GETTING A NEW MOTIVE.
HE ALREADY COOPERATED.
THAT JUST WAS NOT THE TRUTH.
LATER HE, THE PROSECUTOR
ADMITTED THAT THEY GAVE HIM
THESE VISITS SO HE WOULD
CONTINUE RATING.
AND THAT'S DIRECTLY ON THE
RECORD AT TRIAL AND IN THE
INTERNAL AFFAIRS LETTER.
THAT'S ON THE RECORD THAT WE
CAN READ THAT WAS TRANSCRIBED
AND I THINK THAT ALONE IS
SUFFICIENT BASIS TO GRANT A NEW
TRIAL.
TO THE EXTENT IT'S NOT THERE
ARE SO MANY OTHER ISSUES WE
WERE NEVER, WE JUST DID NOT GET
A FAIR HEARING.
IF YOU LOOK AT RECORD, THE
THERE WERE SOME OBJECTIONS
REGARDING SIMPLE EVIDENTIARY
ISSUES AND, THE, CLAIM ONE IS A
TOTAL PACKAGE AND JUSTICE
PARIENTE, I THINK THAT'S WHAT
YOU'RE LOOKING AT, IT'S A TOTAL
PACKAGE.
EACH FACT GOES TO ESTABLISH
ANOTHER FACT AND YET WE WERE
JUST CONFINED TO THE SIX
ALLEGATIONS, I WOULDN'T CALL
THEM ISSUES OR CLAIMS, THEY
WERE FACTUAL ALLEGATIONS, THAT
SUPPORT THE CLAIM THAT THE
TRIAL, THAT THERE WAS NO
ADVERSARIAL TESTING HERE.
SO I'M ASKING FOR A NEW HEARING
BEFORE A JUDGE, A FULL HEARING
ON ALL OF OUR ALLEGATIONS IN
CLAIM ONE WHICH INCLUDES --
>> YOU ENOUGH ARE YOU SAYING
THERE IS ENOUGH TO ACTUALLY
GIVE A NEW TRIAL?
IT'S A DIFFERENT ISSUE WHETHER
YOU GET AN EVIDENTIARY HEARING.
>> RIGHT.
>> YOU THINK ON THE ISSUES THAT
YOU HAD AN EVIDENTIARY HEARING
ON, WHICH, YOU KNOW, ESPECIALLY
ON THIS ISSUE OF WHAT THE
FAVORS WERE FOR LUIS, THAT
ITSELF COULD BE A BASIS FOR A
NEW GUILT PHASE?
>> WELL, ON THE RECORD ALONE,
WHICH THE TRIAL JUDGE DID NOT
DEAL WITH, WE HAVE THE FACT
THAT THE PROSECUTOR MISLED THE
JURY REGARDING THE REASONS FOR
THE ACCOMODATIONS THAT WERE
PROVIDED TO LUIS RODRIGUEZ.
WE ALSO HAVE THE FACT THAT THE
TRIAL COURT DID NOT MAKE A
CREDIBILITY FINDING AGAINST
LUIS OR HIS PRIOR ATTORNEY, ART
KOCH, REGARDING PAROLE
VIOLATION OR OPPORTUNITY FOR
PAROLE, NOT THE PAROLE
VIOLATION.
THAT IN FACT ALTHOUGH LUIS
RODRIGUEZ TOLD THE JURY HE WAS
NOT EVER GOING TO GET PAROLE,
THERE WERE CONVERSATIONS BEHIND
CLOSED DOORS THERE WOULD BE
LETTER.
THERE WAS NO FINDING BY THE
TRIAL COURT THAT DIDN'T OCCUR.
TRIAL COURT SIMPLY SAID THAT
WOULD NOT BE SUFFICIENT TO,
THERE WOULD NOT BE A DIFFERENT
RESULT WHICH IS THE NOT
STANDARD.
THAT'S ALSO THE SAME, WITH THE
THREATS.
WHEN THEY TALKED TO LUIS
RODRIGUEZ, HE SAID THE AT
EVIDENTIARY HEARING THAT THEY
THREATENED HIM WITH PROSECUTION
OF HIS LOVED ONES.
THERE WAS NO FINDING THAT DID
NOT HAPPEN.
SO A LOT OF THESE, EVEN ON THE
RECORD ALONE, THERE'S
SUFFICIENT BASIS TO QUESTION
WHETHER OR NOT THE JURY WOULD
HAVE, THE HOW THE JURY WOULD
HAVE LOOKED AT LUIS RODRIGUEZ'S
TESTIMONY.
THEN THERE IS THE CONFESSION
ISSUE WHICH WE WERE NOT GRANTED
A HEARING ON EITHER.
AND SO, THIS COURT, EVEN ON
DIRECT APPEAL UPHELD SOME OF
THE ERRORS BASED ON THE
STATEMENTS THAT MANUEL
RODRIGUEZ GAVE TO THE POLICE.
BUT I THINK IS A CLASSIC --
>> YOU'RE ABOUT TO USE ALL OF
YOUR TIME.
I DON'T KNOW HOW YOU WANT TO
USE, TO ALERT YOU THAT --
>> THANK YOU.
JUST ON THE CONFESSION ISSUE I
AM ASKING FOR A HEARING ON THAT
CONFESSION ISSUE.
THE FACT THAT THE TRIAL
ATTORNEYS CHALLENGED THE CONFESSION
IS NOT, DOES NOT REFUTE THE
RECORD.
THEY DID NOT DO SO IN A WAY TO
PROTECT THEIR CLIENT'S RIGHTS.
THAT IS VERY IMPORTANT TO SHOW
PREJUDICE.
I WOULD LIKE THE OPPORTUNITY TO
DO THAT.
THANK YOU.
>> MAY IT PLEASE THE COURT.
SANDRA JAGGARD, ASSISTANT ATTORNEY
GENERAL ON BEHALF OF THE STATE.
WITH REGARD TO THE SERVICE
LETTERS, THEY JUST SAID HE WAS
LYING.
WELL, THE JURY HEARD THAT HE
GAVE SEVERAL DIFFERENT VERSIONS
OF THE STATEMENT.
THEY HAVE HEARD THAT HE --
>> WHAT COULD BE ON THIS RECORD
AN EXCUSE FOR THE STATE NOT TO
TURN THOSE LETTERS OVER TO THE
DEFENSE SO THAT THE DEFENSE
COULD, WHILE, SERVICE IS IN
JAIL, IN PRISON, QUESTION HIM
-- WHAT LUIS TOLD HIM?
>> WELL, FIRST OF ALL THE
DEFENSE COULD HAVE QUESTIONED
SERVICE WHILE HE WAS IN JAIL OR
IN PRISON BECAUSE ACCORDING TO
THEIR AFFIDAVIT HE REMAINED IN
PRISON WHILE THIS --
>> HE WAS SOMEBODY THAT HAD
GIVEN FAVORABLE EVIDENCE TO
THEM.
THAT'S THE WHOLE BRADY CLAIM.
>> I UNDERSTAND FROM THE TIME
OF TRIAL.
BUT FROM THE TIME OF POST
CONVICTION, YOU'VE GOT TO KEEP
IN MIND THIS CASE --
>> I'M TALKING ABOUT THAT WE
HAVE NO EVIDENTIARY HEARING AT
THE POINT ON THE BRADY CLAIM.
AND YOU AFTER AN AFFIDAVIT OF
SOMEBODY THAT VOICE, FIRST OF
ALL ON ITS FACE THIS WAS
FAVORABLE EVIDENCE, WHICH IS IS
THAT LUIS RODRIGUEZ IS A LIAR
ABOUT THE MURDER.
THAT'S WHAT HE TOLD THE POLICE
OR THE STATE ATTORNEY ACTUALLY
TWICE BEFORE, BEFORE THE TRIAL.
>> THE FIRST LETTER JUST SAYS I
FAXED HAVE SOME INFORMATION
THAT CAN HELP YOU PROSECUTE
HIM.
THE SECOND LETTER IS ONE WHERE
HE SAYS HE IS LYING.
HE IS LYING ABOUT WHAT --
>> YOU DON'T THINK SOMEBODY WHO
THINKS LUIS IS KEY WITNESS THAT
SOMEBODY MIGHT HAVE OR SHOULD
HAVE PURSUED IT?
FIRST OF ALL THE STATE HAD AN
OBLIGATION TO PURSUE IT SINCE
THEY'RE SEEKING THEY'RE THE
ONES SEEKING JUSTICE AND THEY
HAVE THAT OBLIGATION.
CERTAINLY THEY HAVE THE
OBLIGATION TO TURN IT OVER TO
THE DEFENSE.
>> WHETHER THEY HAD THE
OBLIGATION OR NOT, THE MOTION
DIDN'T ALLEGE ANY PREJUDICE.
IT JUST SAID, WELL THESE
LETTERS ARE OUT THERE.
WE'RE TRYING TO FIND SERVICE.
AND WE DON'T HAVE HIM AND THE
REASON THAT, SO THE MOTION
ITSELF WAS FACIALLY
INSUFFICIENT WHY IT'S SUMMARILY
DENIED.
BECAUSE THE LETTERS ARE NOT
ADMISSIBLE.
THEY DO HAVE TO HAVE ADMISSIBLE
TESTIMONY IN ORDER TO MEET A
BRADY CLAIM.
THAT'S WHY IT GETS SUMMARILY
DENIED.
THE REASON WHY IT SHOULD NOT BE
RELINQUISHED THEY DIDN'T USE
DILIGENCE IN PURSUING THIS
CLAIM.
>> I HAVE, THIS IS MY PROBLEM
WITH THIS CASE.
THERE IS A LOT OF PROBLEMS THAT
I HAVES AND WE OFTEN TIMES HAVE
LOTS OF ATTACKS ON THE GUILT
PHASE.
I REMEMBER CARDONA WAS ONE WE
BECAME CONCERNED BECAUSE IT
LOOKED SHAKY.
YOU'VE GOT HERE LUIS RODRIGUEZ.
WE NOW HAVE THE JUDGE, IN THIS
CASE, FINDING THAT LUIS IS
LACKING IN CREDIBILITY.
NOW, HE'S, OR SHE'S SAYING IT
IN REFERENCE TO THIS ISSUE
ABOUT WHETHER THE STATE NEW
THAT HE WAS BEING GRANTED
SEXUAL FAVORS AND OTHER FAVORS.
NEVERTHELESS, WE'VE GOT A
FINDING THAT THE KEY WITNESS
AGAINST MANUEL IS NOT CREDIBLE.
SO WHY ON EARTH WOULD HE COME
IN NOW, AFTER 20 YEARS OR TEN
YEARS AFTER THE CRIME, AND
TESTIFY TO SOMETHING THAT THE
JUDGE SAYS, YOU'RE A LIAR?
AND THAT, COUPLED WITH, THE
SERVICE LETTERS SAYING THAT, HE
IS A LIAR, THE FACT OF ISIDORO
AND HIS POSSIBLE INVOLVEMENT,
IT SEEMS TO ME THAT THIS IS
SOMETHING THAT DESERVED A NEW
TRIAL?
>> WELL, NUMBER ONE, WE HAVE
LUIS'S, WE HAVE MANUEL'S
STATEMENT.
HIS NUMEROUS FALSE STATEMENTS
AND ATTEMPT TO MISLEAD THE
POLICE.
WE HAVE THE FACT SOMEBODY HAD
TO NO TO GO TO MR.^JOSEPH AND
ROB HIM.
>> WE KNOW THE FACT HE WAS
INVOLVED.
THE QUESTION IS WHO WAS THE
MAIN PERPETRATOR OF THIS CRIME?
AND, I AM STILL STRUCK BY THE
FACT THAT THESE, JEWELRY AND
COINS ARE FOUND UNDERNEATH THE
HOUSE.
MOTHER ISIDORO TO COME DOWN AND
GET THEM.
HE SAYS I WENT BACK TO ORLANDO
TO THROW THEM OUT.
I DIDN'T KNOW WHAT IT WAS.
I MEAN THAT JUST, STRETCHES MY
CREDULTY.
MY ABILITY TO UNDERSTAND WHEN
THE WHOLE MURDER WAS COMMITTED
FOR PECUNIARY GAIN FOR MANUEL,
HOW ISIDORO ENDS UP WITH
JEWELRY AND COINS AND JUST
THROWS THEM AWAY UP IN ORLANDO.
COMES DOWN TO MIAMI TO GET THEM
AND BRINGS THEM BACK.
>> THEY WERE GIVEN AN
EVIDENTIARY HEARING WHETHER OR
NOT MANUEL AND FAMILY KEPT THE
COINS.
THEY PRESENTED NO ADMISSIBLE
EVIDENCE.
THE CLAIM IS PART H, NUMBER ONE
AT PAGE 14 AND 15 OF THEIR
MOTION.
THEY CAME IN AND ALL THEY TRIED
TO PRESENT AT EVIDENTIARY
HEARING IS DEPOSITIONS.
NOW THEY SAY THEY WEREN'T
PRESENTING THEM AS SUBSTANCE
EVIDENCE THAT IS THE NOT THE
ARGUEMENT THEY MADE BELOW THEY
WERE ATTEMPTING TO PRESENT
THESE AS SUBSTANTIVE EVIDENCE.
THIS IS THE TESTIMONY WE WOULD
HAVE PRESENTED WHEN YOU HAVE A
EVIDENTIARY HEARING YOU HAVE TO
PRESENT EVIDENCE ON BOTH
PRONGS.
WE HAVE COMPLETE FAILURE OF
PROOF ON THE FACT THAT THE
FAMILY ENDED UP WITH JEWELRY
AND COINS.
YOU HAD AN EVIDENTIARY HEARING
AND YOU DIDN'T PRESENT
EVERYTHING.
>> WE CAN TAKE EVERYTHING IN
ISOLATION.
BUT, WHAT WE HAVE ALSO, I WILL
JUST THROW THESE TWO THINGS IN
THAT CONCERN ME.
WE FOUND IT WAS ERROR IN THE
ORIGINAL TRIAL TO HAVE
COMMENTED ON MANUEL'S RIGHT TO
REMAIN SILENT.
BUT IT WAS HARMLESS.
BUT APPARENTLY WAS ALSO BROUGHT
UP AGAIN IN THE CLOSING
ARGUMENT.
THE PETITION FOR WRIT OF HABEAS
CORPUS RAISES AN ISSUE TWO
ISSUES THAT CONCERN ME AS WELL.
ONE IS WHY THE, APPELLATE
COUNSEL WOULDN'T HAVE AT LEAST,
SINCE HE WASING ONE AND RAISED
THE SECOND ONE AND SAY THAT WAS
COULD HAVE BEEN ADDITIONAL
BASIS TO REVERSE FUNDAMENTAL
ERROR.
SECOND IS SILENCE OF THE LAMBS
ARGUMENT IN CLOSING ARGUMENT,
CLEARLY IMPROPER, ARGUMENT.
IT WAS OBJECTED TO.
I DON'T UNDERSTAND WHY THAT WAS
RAISED.
AND THIRD, AS FAR AS SOMETHING
THAT ALSO WASN'T DISCUSSED YET
ON THE PENALTY PHASE, THAT YOU
HAVE LAGO WE ALLOWED DOUBLE
HEARSAY.
LAGO SAID MR.^RODRIGUEZ WAS
JUST LYING ABOUT BEING CRAZY
AND NOW WE HAVE A QUESTION AS,
WE ALLOWED THAT DOUBLE HEARSAY.
>> NO, YOU FOUND IT WAS ERROR.
>> WE FOUND IT WAS ERROR.
>> THAT IT WAS HARMLESS BUT NOW
WE HAVE SITUATION WHERE LAGO,
THERE MAY HAVE BEEN INFORMATION
THAT LAGO
WAS GIVEN FAVORABLE TREATMENT
FOR HIS TESTIMONY AND THAT
WASN'T TURNED OVER AND THAT WAS
SUMMARILY DENIED.
SO THERE IS JUST SO MANY, I
REALIZE SOMETIMES YOU CAN THROW
A LOT OF, YOU KNOW, YOU CAN
THROW A LOT AND EVERYTHING
LOOKS IMPRESSIVE AND THEN YOU
DISSECT EACH ONELY AND YOU GO,
THAT HASN'T MERIT.
THAT DOESN'T HAVE MERIT.
BUT I IN LOOKING AT THIS WHOLE
PICTURE ESPECIALLY WITH THE
ERRORS WE FOUND ORIGINALLY AND
NOW THE, THE FACT THAT THE
JUDGE'S FINDING LUIS LACKING IN
CREDIBILITY, WE'VE GOT THE
SERVICE AFFIDAVIT THAT SAYS,
LUIS IS A LIAR, WE GOT THE
POTENTIAL THAT ISIDORO WAS YOU
KNOW A POLICE INFORMANT AND ALSO
INVOLVED IN A MAJOR NARCOTICS
INVESTIGATION AND YOU'RE GOING,
THIS IS, DOES DOESN'T LOOK
QUITE LIKE SOMETHING THAT IS IN
KEEPING WITH JUSTICE IN A DEATH
PENALTY CASE.
>> LET'S KEEP IN MIND, THAT,
THE JURY KNEW ABOUT LUIS AND
HIS CREDIBILITY.
THEY KNEW HE HAD MADE SEVERAL
DIFFERENT STATEMENTS.
THEY KNEW HE HAD THE VISITS
WITH THE FAMILY.
THAT WAS TESTIFIED TO.
THEY KNEW THAT HE HAD THE SEX
WITH HIS WIFE DURING VISITS
WITH THE FAMILY.
THEY KNEW HE WAS ALLOWED TO
WAIT IN THE PROSECUTOR'S OFFICE
AND WAS GIVEN A HUNDRED OF.
THEY KNEW HE WAS EXPECTING TO
GET PAROLE.
HE TOLD THEM, WELL NOBODY
PROMISED ME I WAS GOING TO GET
PAROLE.
I DID IN FACT CALL THE PAROLE
DEPARTMENT AND THEY HAVE TOLD
ME I CAN GET PAROLE.
I CAN BE UP IN TEN YEARS AND
I'M CLAIMING TO GET OUT IN TEN
YEARS.
THEY ALSO HEARD THAT WELL
BEFORE HE WAS EVER INVOLVED
WITH THE POLICE HE HAD TOLD HIS
BROTHER-IN-LAW ABOUT HAVING
COMMITTED THIS CRIME.
AND, SO, THEY KNEW, ALL ABOUT,
HOW INCREDIBLE THEY HEARD, THAT
LUIS PLED GUILTY TO A CRIME HE
WAS CLAIMING HE DIDN'T COMMIT.
THEY KNEW ALL ABOUT LUIS'S
CREDIBILITY.
AND WHY LUIS WOULD COME IN NOW
SAY THIS IS LUIS IS TRYING TO
GET OUT.
HE HIMSELF IS SEEKING POST
CONVICTION RELIEF.
AS FAR AS ISIDORO, IT WASN'T
PLED BELOW AS INFORMANT.
IT WAS AS A WITNESS.
THERE IS BIG DIFFERENCE IN
PEJORATIVE TERM
INFORMANT AND TERM WITNESS.
PROBLEM WITH THAT HE WAS
QUESTIONED BY OTHER OFFICERS,
HAD GIVEN A STATEMENT. HE
HIMSELF SAID I GAVE IT, I WAS
THREATENED. THEY WERE GOING TO
TALK TO MY MOM.
SO THEY HEARD HE WAS
THREATENED.
AS FAR AS THIS INVESTIGATION IN
SEMINOLE COUNTY, THEY NEVER
PLED WHEN THIS HAPPENED, WHERE
THIS HAPPENED, WHAT HAPPENED,
WHETHER ISIDORO EVER EVEN KNEW
THIS WAS GOING ON.
THE ONLY REASON YOU GET TO
QUESTION A STATE WITNESS ABOUT
AN INVESTIGATION IS IF THEY
KNOW ABOUT IT AND HAVE A REASON
TO CURRY FAVOR WITH THE STATE.
THERE WERE NO ALLEGATIONS THAT
WAS GOING ON.
WE HAD AN INSUFFICIENTLY PLED
MOTION.
WE HAD AN EVIDENTIARY HEARING
WHERE THEY WERE GIVEN AN
EVIDENTIARY HEARING, BROUGHT IN
ONE WITNESS WHO DIDN'T REMEMBER
ANYTHING.
AND THEN PUT ON THE DEFENSE
ATTORNEYS AND STATE ATTORNEY
AND, ASKED THEM, TO IDENTIFY
DEPOSITIONS AND TRIED TO ADMIT
THEM INTO EVIDENCE.
AND IT'S THE STATE'S POSITION
THAT YOU HAVE MANUEL'S
CONFESSIONS.
YOU HAVE HIM BEING ONE THAT
LIVES IN THE APARTMENT.
YOU HAVE HIM COMING TO THE
POLICE AND TRYING TO MISLEAD
THE INVESTIGATION.
YOU HAVE, YOU HAVE THE FAMILY
ABOUT COOKIE.
YOU HAVE THE CONSISTENT
STATEMENT LONG BEFORE ANYBODY'S
EVER INVOLVED WITH THE POLICE,
LUIS SAYING MANUEL WAS
INVOLVED.
>> WHAT WAS THE, WHAT WAS THE
EXTENT OF THE INFORMATION THAT
CAME OUT AT THIS
POST-CONVICTION HEARING OR IN
THE PROCEEDINGS ABOUT LUIS
HAVING HIS OWN POST CONVICTION
PROCEEDINGS?
>> THEY ATTEMPTED TO PRESENT
HIS POST-CONVICTION AS HIS
TESTIMONY.
KEEP IN MIND DADE COUNTY THE
TRIAL COURT IS ALSO HANDLING
THAT MOTION.
SHE KNOWS ABOUT IT.
SO.
>> IS THE MOTION IN OUR RECORD?
>> IT WAS PROFFERED AS AN
EXHIBIT SO IT SHOULD BE.
>> SO IT SHOULD BE?
OKAY.
>> I DON'T QUITE UNDERSTAND
YOUR ARGUMENT ABOUT HOW LUIS
TESTIMONY IN THIS PARTICULAR
CASE WOULD REALLY BE OF
ASSISTANCE TO HIM IN HIS OWN
POST-CONVICTION MOTION?
>> WELL HE'S BUSY SAYING THE
STATE LIED TO ME AND MY PLEA
WAS INVOLUNTARY.
SO HE IS TRYING TO SHOW THAT
HIS PLEA WAS INVOLUNTARY
BECAUSE WE WERE LYING TO HIM.
>> YOU'RE SAYING HE, THE
TESTIMONY FROM THIS PARTICULAR
HEARING, TO, BOLSTER THE
ALLEGATIONS THAT HE IS MAKING
IN HIS OWN POST-CONVICTION
MOTION?
>> YES.
HE IS MAD AT THE STATE AND
HE'S, WANTS OUT OF PLEA AND,
THAT'S WHY HE'S TESTIFYING.
>> LET ME MAKE SURE I
UNDERSTAND THE -- GO AHEAD.
>> ONE OTHER ISSUE THAT I'M NOT
QUITE CLEAR ON HERE IS, A LOT
HAS BEEN MADE ABOUT THIS, THE
JEWELRY THAT WAS TAKEN FROM THE
VICTIM'S HOME I ASSUME?
>> YES.
>> DO WE HAVE ANY CLEAR IDEA
FROM THIS RECORD OF WHAT IN
FACT WAS TAKEN?
YOU KNOW, BECAUSE IT OCCURS TO
ME THAT THERE MAY HAVE BEEN
SOME, YOU KNOW, THE TWO SPLIT
UP THE JEWELRY OR
SOME KIND OF --
>> THE EVIDENCE WAS MANUEL
ENDED UP WITH ALL OF IT AND --
>> I'M SORRY, WHAT DO WE HAVE?
>> THE EVIDENCE IS MANUEL ENDED
UP WITH ALL OF IT AND THAT IT
ENDED UP UNDER LUIS'S MOTHER'S
TRAILER.
LUIS'S MOTHER FOUND IT.
TOOK IT INSIDE.
LUIS HAD GONE BACK TO ORLANDO
TOO, RIGHT AFTER THE CRIME, SO
NEITHER LUIS NOR IS SID DORA
WAS IN TOWN TO COME GET IT.
SHE FINDS IT.
SHE BRINGS IT INSIDE.
SHE SAULS IS SID DOOR ARE --
CALLS ISIDORO AND ISIDORO COMES
DOWN TO GET IT.
AND MANUEL AND COOKIE ARE
LOOKING FOR IT AND CAN'T FIND
IT.
SHE TELLS THEM SHE HAD HID IT
INSIDE FROM THEM.
>> LET ME MAKE SURE --
>> THE STUFF THAT WAS STOLEN,
WE HAVE DESCRIPTIONS ABOUT THE
COIN COLLECTION IN THE APPEOPLE
RECORD.
HAVE DESCRIPTION ABOUT MISS
ABRAHAM'S WEDDING RIPPING, THAT
SHE IS PEOPLE HABITUALLY FOUND
WORE WHEN THEY WERE FOUND DEAD.
>> LET ME ASK ABOUT THE
STATEMENT ABOUT THE FELLOW THAT
IS IN PERU.
IS IT THAT THIS WHOLE -- THE
JURY WAS GIVEN UP AND DOWN,
INSIDE OUT, THAT THIS WITNESS
WAS LYING AND THIS IS JUST
REALLY JUST CUMULATIVE OF
EVERYTHING THAT WAS ALREADY, IS
ALREADY PRESENTED.
I MEAN IS THAT, THAT SUM AND
SUBSTANCE OF IT?
IS THAT --
>> THAT'S PART OF THE STATE'S
POSITION, YES IT'S CUMULATIVE
AND THAT WOULD BE WHY WE
WOULDN'T HAVE TURNED IT OVER
THIS VAGUE ALLEGATION OF LYING
LUIS TURNED OVER ALL THIS STUFF
ABOUT LYING FROM A JAILHOUSE
SNITCH LOOKING FROM A DEAL FROM
US AND WE'RE NOT INTERESTED IN
GIVING HIM ONE.
>> IT'S NOT JUST THAT THEY HAVE
THIS OTHER EVIDENCE OF LYING.
THIS IS SO NEBULOUS AND SO GRAY
IN SUCH AN AREA IT CANNOT BE
REASONABLY INTERPRETED THAT
THIS SHOULD BE TURNED OVER AS
ADDITIONAL EVIDENCE?
THERE IS ADDITIONAL
INFORMATION?
>> YES AT THE POINT WHERE WE'VE
GIVEN YOU ALL THIS OTHER
EVIDENCE THAT LUIS BEING
INCREDIBLE.
THE JAILHOUSE INFORMANT SAYS HE
INCREDIBLE LOOKING FROM DEAL
FOR US WE'RE UNWILLING TO GIVE
HIM.
THEN OF COURSE YOU HAVE THE
SMALL PROBLEM OF THIS CASE, WAS
SHORTLY AFTER THE DPRA CAME
INTO EFFECT AND BEFORE YOU
INVALIDATED IT.
SO THE PUBLIC RECORDS NOTICES
ACTUALLY WENT OUT BEFORE YOU
EVEN AFFIRMED APPEAL.
AND, THE STATE'S PUBLIC RECORDS
WERE SITTING THERE FROM MAY OF
2000.
AND THE DEFENSE NEVER BOTHERED
TO GET THEM.
AND IF YOU LOOK AT
MR.^SERVICE'S AFFIDAVIT, HE
WOULD HAVE BEEN IN PRISON HAD
THEY BOTHERED TO GO INTERVIEW
HIM WHEN WE FIRST SENT THE
PUBLIC RECORDS.
BUT INSTEAD THEY DIDN'T BOTHER
TO APPEAR AND DIDN'T BOTHER TO
GO PICK UP THE RECORDS.
THAT IS A LACK OF DILIGENCE.
ONCE WE GET PAST A HUFF HEARING
THEY HAVE TO MEET SUCCESS IN
MOTION STANDARD UNDER VINING
AND DORBAUGH THEY HAVE TO SHOW
THAT, THEY WERE DILIGENT IN
PURSUING THIS CLAIM AND THEY
JUST WEREN'T.
AS FAR AS THE COMMENTS IN
CLOSING THE COMMENT IN CLOSING,
CLOSELY MIRRORS THE TESTIMONY
OF THE, THE TESTIMONY WAS
HARMLESS BECAUSE TESTIMONY CALM
IN, THE FACT THAT THERE WAS A
BRIEF COMMENT CLOSING ABOUT
IT, WAS GOING TO BE HARMLESS
TOO.
AS FAR AS THE HEART OF DARKNESS
COMMENT THAT WAS MADE IN
RESPONSE TO THE DEFENSE
CLAIMING THAT THE LUIS WAS THE
EVIL ONE HERE AND THE STATE WAS
JUST --
>> "SILENCE OF THE LAMBS".
>> "SILENCE OF THE LAMBS".
>> THEY USED BOTH.
THEY USED, "SILENCE OF THE
LAMBS" THAT WAS OBJECTED TO.
>> IT WAS JUST TO SHOW, THAT HE
IS NOT THE EVIL ONE.
HE'S THE EVIL ONE.
IT WAS FAIR REBUTTAL THEREFORE
THERE WAS NOTHING TO RAISE
ABOUT THAT ONE.
IF THE COURT HAS NO OTHER
QUESTIONS, THE STATE
RESPECTFULLY REQUESTS YOU
AFFIRM.
>> THANK YOU.
REBUTTAL?
>> FIRST ON THE SERVICE ISSUE,
MANY OF THE FACT WALL
STATEMENTS THAT WERE MADE BY
THE ATTORNEY GENERAL HERE ARE,
IS NOT INFORMATION THAT HAS
BEEN PROVEN AT A HEARING.
I THINK THAT REALLY ESTABLISHES
REGARDING THE DUE DILIGENCE OR
CBRC RECEIVED RECORDS ARE
ISSUES THAT WOULD BE BROUGHT
OUT AT A HEARING.
I DON'T BELIEVE IT WOULD BE A
SUCCESSIVE MOTION.
WE HAVE ADDITIONAL EVIDENCE IN
FORM OF AN AFFIDAVIT.
WE SHOULD HAVE BEEN GRANTED A
HEARING INITIALLY.
>> WHAT HAPPENED TO THE TIME
FRAME?
>> RIGHT.
>> HELP ME WITH THE TIME FRAME.
WHEN WERE YOU SERVED WITH THE
PUBLIC RECORDS RESPONSE BY THE
STATE IN RELATION TO THE
FILING?
>> FRANKLY I THINK I PUT SOME
OF THAT INFORMATION IN A MOTION
BUT I DON'T HAVE THAT
INFORMATION AT HAND BECAUSE, I
THINK IT'S INFORMATION THAT
GOES TO A HEARING.
I DON'T BELIEVE THAT WE SHOULD
HAVE HAD TO ALLEGE THAT IN OUR
MOTION.
AND I WAS NOT COUNSEL OF
RECORD AT THAT TIME.
I WOULD HAVE TO GO BACK AND
INTERVIEW THE ATTORNEY WHO
ACTUALLY FOUND THE LETTERS.
BUT MY UNDERSTANDING AGAIN THIS
IS INFORMATION THAT WOULD COME
OUT AT HEARING THERE WAS SOME
DELAY IN TERMS OF CCRC BE
APPOINTED.
WHILE THE RECORDS MAY HAVE BEEN
AT REPOSITORY WE NEVER FILED
OUR NOTICE OF APPEARANCE UNTIL
SOMETIME LATER.
I THINK THIS IS VERY MORE
COMPLICATED ISSUE THAN, IT
NEEDS TO BE GRANTED A HEARING
BECAUSE TO THE EXTENT THERE IS
ANY DUE DILIGENCE ISSUE, IT
SHOULD BE A HEARING.
BUT WE FILED A MOTION.
THERE WAS NO OBJECTION AT THE
TILE.
WE THE MOTION WITHIN PLENTY OF
TIME.
2001, PRIOR TO THE HUFF HEARING
ALLEGING WE SHOULD BE GRANTED A
HEARING.
THIS IS INFORMATION THAT SHOULD
HAVE BEEN TURNED OVER.
TO THE EXTENT THERE IS ANY
STATEMENTS THAT MR.^SERVICE WAS
LOOKING FOR A DEAL, THAT'S NOT
IN THE RECORD.
AND, IF ANYTHING, MR.^SERVICE
AS SISES IN SHOWING THE JURY
THAT -- IS NOT CREDIBLE.
>> TO BE FAIR, MR.^SERVICE
WRITES THE LETTER TO THE STATE
ATTORNEY'S OFFICE.
EVEN IN THE LETTER HE KNOWS WHO
THE DEFENSE ATTORNEY IS.
HE DOESN'T WRITE THE LETTER TO
THE DEFENSE ATTORNEY AND SAYS,
MR.^LUIS IS LYING.
HE WRITES A LETTER TO THE STATE
ATTORNEY SAYING THAT.
IT SEEMS TO ME THAT THERE IS
SOME FAIR INFERENCE HERE THAT
HERE'S THIS MAN SITTING IN
JAIL.
SO HE IS GETTING TO THE STATE
ATTORNEY.
SO HE CAN GET SOME GOOD USE OUT
OF INFORMATION THAT HE
ALLEGEDLY HAS.
>> MIGHT BE A FAIR INFERENCE,
IT'S NOT SUFFICIENT TO DEFEAT
OUR RIGHT TO HEARING
RESPECTFULLY.
THE TRIAL JUDGE DID NOT MAKE
THAT INFERENCE.
WE WERE JUST DENIED A HEARING
WITHOUT EXPLANATION.
I DID BRIEFLY WANT TO TALK
ABOUT THE PREJUDICE WITH
RESPECT TO, THE TRIAL COURT AND
THE STATE IN ANSWER BRIEF, DID
RELY ON MARIA MALAKOFF
STATEMENTS USED TO IMPEACH HER.
PROSECUTION ARGUED SOME HER
STATEMENT AS SUBSTANTIVE
EVIDENCE.
THAT WOULD NOT FALL INTO THE
PREJUDICE EQUATION.
ALTHOUGH ON DIRECT APPEAL WITH
RESPECT TO THE PREJUDICE OF THE
GUILT PHASE THERE IS ALSO
PREJUDICE TO THE PENALTY PHASE
AS WELL BECAUSE THIS COURT
UPHELD CHALLENGES TO THE CCP
AND THE AVOID ARREST FACTOR
BASED ON, LUIS RODRIGUEZ'S
VERSION OF HOW THE CRIME
OCCURRED.
SO IT'S NOT JUST WITH RESPECT
TO THE GUILT PHASE.
IT ALSO GOES TO THE PENALTY
PHASE.
AND JUST TO, ANSWER, THE
QUESTION REGARDING THE JEWELRY,
THE ALLEGATIONS CONCERNING THE
JEWELRY CAN BE FOUND IN THE
RECORD ON PAGES 53 THROUGH 57.
ALTHOUGH WE WERE ONLY GRANT AD
HEARING ON PART OF, LIKE I
SAID, THERE WAS NUMEROUS
ALLEGATIONS WITHIN THOSE TWO
PAGESES.
WE WERE GRANTED A HEARING ON
JUST ONE SMALL SUBPART.
>> WITH THAT YOU FAR EXCEEDED
YOUR REBUTTAL TIME.
>> THANK YOU.
>> THANK YOU VERY MUCH FOR THE
PRESENTATION.
THE COURT WILL TAKE THE CASE
UNDER ADVISEMENT.
THE COURT STAND IN RECESS.
>> ALL RISE.
>> COURT IS IN RECESS.