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.
StephenTodd Booker v. State of Florida
SC06-121
PLEASE RISE.
>> GOOD MORNING.
>> BACK AGAIN.
GOOD MORNING.
LADIES AND GENTLEMEN, THE
FLORIDA SUPREME COURT.
PLEASE BE SEATED.
>> THE NEXT CASE ON OUR
CALENDAR IS BOOKER VERSUS
THE STATE OF FLORIDA.
MR. BRODY.
>> MAY IT PLEASE THE COURT,
I AM HARRY BRODY AND JEFF
HAZEN, WE REPRESENT STEPHEN
TODD BOOKER ON HIS CLAIM FOR
POST-CONVICTION RELIEF ON
APPEAL FROM THE ORDER OF THE
CIRCUIT COURT IN
GAINESVILLE, FLORIDA.
THE CIRCUIT COURT SIMPLY DID
NOT ADDRESS THE DOCUMENTARY
EVIDENCE THAT A MALE COVER
WAS CONDUCTED ON ALL
MR. BOOKER'S MAIL.
>> MR. BRODY, IT APPEARS
THAT THEY DID ADDRESS THAT
WITH THE EVIDENCE FROM YOUR
CLIENT'S TRIAL LAWYER,
DIDN'T THEY DISCUSS THAT ON
HOW THE MAIL WAS
HAND-DELIVERED, THAT WAS NOT
ADDRESSED AND WHETHER OUR
MAIL MAY NOT HAVE BEEN
ADDRESSED BUT THE LEGAL MAIL
CERTAINLY WAS ADDRESSED,
WANT IT?
>> YES, YOUR HONOR, HE DID
ADDRESS THE LEGAL MAIL,
LEGAL MAIL IS TYPICALLY, UM,
HIS ATTORNEY DESCRIBED HOW
LEGAL MAIL IS HANDLED, BUT
OUR CLAIM WAS FAR BROADER
THAN THAT.
OUR CLAIM WAS THAT THERE WAS
SYSTEMIC INTRUSION INTO OUR
CLIENT'S TRIAL PREPARATIONS,
AND THAT IS EQUALLY
FORBIDDEN AS THE ATTORNEY-CLIENT
PRIVILEGE, SO OUR CLAIM WAS
NOT JUST LIMITED TO THE
ATTORNEY-CLIENT PRIVILEGE.
IT HAS TO DO WITH OUR
CLIENT'S LETTERS TO
WITNESSES.
>> LET ME ASK YOU, FIRST OF
ALL, LET'S, LET'S ASSUME
THAT SOMETHING ELSE HAPPENED.
WHAT IS THE -- HOW DO YOU
EVALUATE THE PREJUDICE
PROBLEM?
>> THE PREJUDICE WAS NOT
REACHED.
WE HELD BEFORE THIS HEAR,
THE FIRST THING WE WERE
GOING TO DO IS MAKING A
DETERMINATION AS TO WHETHER
THIS HAPPENED.
THEN, WE WOULD ADDRESS THE
PREJUDICE PART OF THE CASE
BECAUSE THERE WAS NO --
THERE ISN'T ANY CLEAR
GUIDANCE IN THIS CASE LAW AS
TO HOW WE WOULD PROCEED, AND
WE WE THINK THE CASE
ACTUALLY NEEDS TO BE
REMANNEDED FOR THE COURT TO
DEAL WITH THAT ISSUE.
>> SO YOU ARE REALLY TALKING
ABOUT SOMETHING THAT IS
ALMOST LIKE THAT
PROSECUTORIAL MISCONDUCT,
THEY NOW ALLEGED THEY KNOW
SOMETHING THAT THEY WOULDN'T
HAVE KNOWN BUT WE DON'T KNOW
WHAT THAT SOMETHING IS, AND
SO, HOW WOULD THIS UNDERMINE
OUR CONFIDENCE IN THE
OUTCOME AND HOW WOULD A
REMEDY OF A NEW TRIAL EVEN
SOLVE THE PROBLEM?
SOMETIMES THAT HAPPENS WITH,
YOU KNOW, SO I THINK THERE
IS A LOT OF CONNECTING UP,
AND MAYBE IF YOU DON'T THINK
YOU CAN ESTABLISH THAT,
MAYBE I WOULD GO BACK AND
SAY WHAT IS THE, DOES THE
STATE HAVE THE RIGHT THROUGH
THE DEPARTMENT OF
COVERRECTION -- CORRECTION
TO LOOK AT MAIL THAT IS NOT
ATTORNEY-CLIENT MAIL, THEY
HAVE THE RIGHT TO MONITOR A
PRISONER'S MAIL?
>> OF COURSE, THEY DO HAVE
THAT HE RIGHT.
THIS WAS DONE, THOUGH, BY
THE STATE ATTORNEY'S OFFICE,
NOT BY THE JAIL, IN ORDER TO,
FOR DISCIPLINE OR FOR
PROTECTION IN THE JAIL.
THIS WAS -- THIS IS VERY
AKIN TO AN INTRUSION BY
PLANNING AN AGENT IN THE
LAWYER'S OFFICE, OR BY
TELEPHONE TAPS.
>> COULDN'T YOU HAVE THE
PROSECUTOR IN THE CASE
SAYING, YEAH, IT LOOKS LIKE
SOMETHING MIGHT HAVE
HAPPENED, BUT WE, OURSELVES,
THE SPECIFIC PEOPLE THAT
WOULD THEN BENEFIT FROM IT,
HAD NO KNOWLEDGE, WE
RECEIVED NO INFORMATION.
>> THE PROSECUTOR TESTIFIED
THAT HE WOULD HAVE HAD TO
AUTHORIZE IT, THE STATE
ATTORNEY SMITH, HIS
TESTIMONY WAS THAT IN ORDER
FOR THIS TO HP PERSON, I
WOULD HAVE HAD TO AUTHORIZE
IT.
MR. PRICE TESTIFIED THAT HE
WOULD REPORT IT TO MR. SMITH
AND MR. GRAY, BUT HE WOULD
REPORT EVERYTHING TO THEM,
SO HE CONFIRMED THAT WHAT IS
IN THE REPORT, HE WOULD HAVE
DONE, THE REPORT SAYS, I DID
SO AND SO, HE TESTIFIED,
THAT MEANS THAT I DID THAT,
ANSWERED ALSO TESTIFIED I
WOULD HAVE REPORTED
EVERYTHING IN THERE TO MY
SUPERIORS, TO MR. SMITH.
THESE DOCUMENTS WERE FROM
THE STATE ATTORNEY'S WORK
FILES, WHERE THEY CAME FROM.
>> WERE ANY DOCUMENTS, DID,
FROM THE ATTORNEY'S WORK
FILES, DID YOU COME UP WITH
THAEN DOCUMENTS THAT WERE
LETTERS OF YOUR CLIENTS?
>> WE DID NOT COME UP WITH
THE LETTERS WHICH THEY
MAILED.
THEY READ THE LETTERS, THEN,
THEY -- I SUPPOSE, WE WERE
NOT PERMITTED TO GO INTO ANY
OF THIS, AS I SAY, THE SCOPE
OF THIS HEARING WAS LIMITED
TO WHETHER, SO THE JUDGE
FOUND THAT AS TO NON-LEGAL
MAIL THAT THERE WAS NO
INTERCEPTION OF NON-LEGAL
MAIL?
>> THE JUDGE FOUND THAT THE
ATTORNEY-CLIENT PRIVILEGE
WAS NOT REACHED.
>> BECAUSE THAT GOES BACK TO
WHAT JUSTICE LEWIS ASKED
INITIALLY, IT IS IMPRESS IF
THAT THERE WAS EVIDENCE THAT
ANYTHING THAT WAS DELIVERED
BY THE LAWYER, EXCEPT FOR
ONE OR TWO PIECES WAS
ACTUALLY DELIVERED TO YOUR
CLIENT IN PERSON, SO THAT IT
WOULD REFUTE THAT THERE WAS
BER EXCEPTION OF THE MOST
IMPORTANT ATTORNEY-CLIENT
MAIL?
>> THE ATTORNEY CLIENT MAIL
IS ALWAYS DELIVERED IN THAT
MANNER, AT FISP, I BELIEVE.
>> THEY DON'T HAND DELIVER
FROM MIAMI, THEY MAIL IT UP.
YOU MUST HAVE MISSPOKEN.
>> OH, AIM SO REQUIRE, I
THOUGHT YOU MEANT DO THEY
CARRY IT TO THE CELL BY
HAND?
>> NO, NO.
INITIALLY, THE LAWYER
TESTIFIED THAT HE, IN FACT,,
THAT IS RIGHT.
>> YOUR HONOR, I AM SORRY.
>> THEN, ALSO, THE MAIL
GOING BACK, I MEAN, IT SIM
SEEMS AS THOUGH THE RECORD
INDICATES THAT THE INMATE
WOULD CROSS OR DO SOMETHING
ALONG EVERY SEAL OF EVERY
LETTER TO BE SENT TO HIS
LAWYER, THE LAWYER TESTIFIED
HE NEVER RECEIVED ONE.
CORRECT ME IF I AM WRONG, HE
NEVER RECEIVED THAT APPEARED
IT MAY BE TAMPERED WITH.
THIS WAS NOT A SHRINKING
KIND OF A LAWYER.
I MEAN, --
>> RIGHT.
THAT IS RIGHT, YOUR HONOR.
BUT WE ARE SAYING IT IS NOT
LIMITED.
IT HAS TO DO WITH MONITORING
LETTERS TO WITNESSES, WHO
WERE ACTUALLY, WHO WERE
GOING TO TESTIFY TO
MITIGATION, FACTS ABOUT
MR. BOOKER IN PRISON, THIS
WHOLE, HIS WIFE, THEY
MONITORED LETTERS TO HER AND
THAT IS WHAT THE WHOLE
INCIDENT WITH ALLEGEDLY
FEELING HER WAS ABOUT AND --
>> LET'S COME DOWN, REALLY,
THEN, YOU ARE PRESENTING A
RULE, THAT IT IS, WHEN YOU
ARE IN THE MIDDLE OF
LITIGATION, YOU THAT IT IS
ILLEGAL TO DEAL WITH THESE
MAIL REVIEW KINDS OF
SITUATIONS BECAUSE IT MAY,
IT MAY INCLUDE SOMETHING
THAT IS GOING TO BE IN
PREPARATION OF THE CASE?
>> THAT IS ABSOLUTELY
CORRECT.
THE TRIAL PREPARATION.
>> WOULD YOU THEN PLEASE
ANSWER JUSTICE PARRY EN TA'S
QUESTION, LET'S ASSUME YOU
ESTABLISHED THAT.
S WHAT THE NEXT STEP?
WHAT IS THE NEXT BURDEN?
IS IT LIKE A CHRONIC
SITUATION THAT IT IS PER SE.
WHAT HAPPENED?
>> THE COURT DID HOLD,
ACTUALLY, IT WAS IN THE MID
'70s, THAT WOULD HAVE BEEN
THE HOLDING, OF COURSE, THEY
MOVED AWAY THAT, CERTAINLY,
AND THE COURTS NOW, THE
CASES THAT WE HAVE FOUND,
AND WE PUT THEM IN THE REPLY
BRIEF, THERE ARE NOT A LOT
OF THEM, WOULD SAY THE
BURDEN SHIFTS AT THAT POINT
TO THE PROSECUTION TO SHOW
THAT WHAT THEY PRESENTED WAS
NOT TARNISHED OR TAINTED BY
THE IMPROPERLY OBTAINED
KNOWLEDGE.
>> OKAY.
LET'S STOP RIGHT THERE.
DIDN'T THEY DO THAT DIDN'T
THEY PRESENT ALL OF THE
EVIDENCE FROM THE STATE
SIDE.
WHAT IS MISSING ON THAT?
>> WE DID NOT REACH THAT
QUESTION AND EVIDENCE WAS
NOT PRESENTED ON THAT POINT.
WE DIDN'T, BY AGREEMENT AND
THE COURT AGREED WITH THIS.
WE DIDN'T EVEN REACH THAT
POINT.
WE THINK THE CASE NEEDS TO
BE REMANNED FIRE DEPARTMENT
THERE IS A FINDING THAT, IN.
>> PLEASE CORRECT ME IF I AM
WRONG, I THINK THE THOUGHT
THE RECORD DEMONSTRATED
SENATOR SMITH SAID I DIDN'T
USE ANYTHING THERE, WHOEVER
WAS RESPONSIBLE SAID I NEVER
SAW ANYTHING LIKE THAT.
>> THEY DENY TAD THAT A MAIL
COVER TOOK PLACE.
THE RECORD DOES NOT SUPPORT
THAT FINDINGS.
THE RECORD --
>> THEY SAID THEFER NEVER
SAW ANYTHING, IF IT
HAPPENED, DIDN'T THEY SAY,
NEVER SAW ANY THING, I NEVER
USED ANYTHING.
EALSO TESTIFIED THAT -- HE
ALSO TESTIFYED THAT HE WOULD
HAVE HAD TO YOU A THOOR RISE
IT AN MR. -- AUTHORIZE IT
AND MR. PRICE TESTIFIED THAT
THE INFORMATION WOULD HAVE
GONE TO HIM.
>> BUT AGAIN, YOU DESCRIBED
WHAT THE BURDEN WAS AND MY
QUESTION TO YOU IS S..
DID THE STATE NOT SATISFY
THAT BY PRESEG THE EVIDENCE?
NOTHING CAME ARE THE MAIL
THAT I EVER SAW?
>> NO IT DO NOT, YOUR HONOR
I WAS NOT ALLOWED TO EXAMINE
THEM SUFFICIENTLY ON THOSE
POINTS.
I WAS NOT ALLOWED TO TALK TO
MR. SMITH ABOUT THAT, TO
FIND OUT WHO ELSE WAS
WORKING ON THE CASE.
IT WAS IN THE MIDDLE OF THE
CAMPAIGN FOR ONE THING.
IT WAS VERY HARD TO DO MUCH
DISCOVERY THAT TIME.
>> DID THE JUDGE STOP YOU AT
THE EVIDENTIARY HEARING ON
THIS ISSUE FROM ASKING
QUESTIONS OF THOSE
WITNESSES?
>> YES.
>> YES?
>> IT WAS RESERVED -- NO,
BEFORE THE HEARING, WE
AGREED.
IT WAS AGREED THAT WE WERE
NOT EVEN GOING INTO THE
PREJUDICE ISSUE UNTIL WE --
BECAUSE THE STATE WAS
SAYING, IT NEVER HAPPENED.
THE STATES SAYING, THERE WAS
NO MAIL COVER.
A MAIL COVER DID NOT HAPPEN.
WE SAY THAT UNDER THIS
RECORD, WE HAD THE DOCUMENT,
NICK PRICE WROTE MEMOS THAT
HE IDENTIFIED AND THAT RUN
THE RECORD AND AT WHICH THE
STATE DID NOT JUST IGNORE,
THE COURT IGNORED THEM, BUT
THEY SHOW, THEY SHOWED THAT
A MAIL COVER DID HAPPEN.
>> HOW DO WE DEAL WELL THE
COURT'S FINDING ON PAGE 4 OF
THIS ORDER, THAT THE
DEFENDANT NOT ONLY FAILED TO
PRESENT EVIDENCE LEGAL MAIL
BEING TAMPERED, WITH BUT THE
DEFENDANT LIKEWISE FAILED TO
PRESENT ANY EVIDENCE OF ANY
FORM WERE INTERCEPTED,
INTERFERED WITH OR USED BY
AN AGENT OF THIS STATE?
>> THAT WOULD BE ON THE
SCOPE OF THE HEARING, THAT
WAS BROADER THAN THE SCOPE
OF THE HEARING THAT WE HAD.
THE RECORD DOES REFLECT, WE
WERE RECEIVING THAT QUESTION.
>> WELL, WHO ELSE WOULD YOU
HAVE PUT ON TO ESTABLISH
THAT, EVEN IF THE
PROSECUTOR, OR THE STATE
ATTORNEY DID NOT HAVE THIS
INFORMATION, THAT SOMEBODY
ELSE DID?
WHAT WOULD YOU HAVE PUT ON
TO SHOW THAT MAIL WAS
INTERCEPTED?
>> WELL, I WOULD CERTAINLY
LOOK AT THE TESTIMONY OF
BETTY, FOR INSTANCE, HOW IT
CAME OUT, I WOULD LOOK AT
THE STRATEGIES THAT THE
COURT ACTUALLY EMPLOYED IN,
IN DEALING WITH SOME OF THE
ARGUMENTS ABOUT FUTURE
DANGEROUSNESS OR THAT SORT.
WHETHER MR. BOOKER WAS STILL
DANGEROUS.
>>, NO THAT IS YOU WHAT
SAID.
THE PROSECUTOR SAID, WE
NEVER SAW ANYTHING.
YOU SAID, YOU WERE STOPPED
FROM PUTTING ON OTHER PEOPLE
FROM THE STATE ATTORNEY'S
SPACE THAT COULD HAVE SHOWN
THAT SOMEONE HAD READ
SOMETHING.
>> RIGHT.
I WAS CONCERNED ABOUT W
ESTABLISHING THAT A MAIL
COVER HAD OCCURRED.
THAT WAS THE SCOPE OF THE
HEARING THAT WE AGREED TO.
>> MAIL COVER ITSELF IS NOT
UNCONSTITUTIONAL, RIGHT?
>> IT NOW IT IS
UNCONSTITUTIONAL.
>> I AM SORRY, YOUR HONOR, I
DIDN'T MEAN TO INTERRUPT.
I WAS JUST GOING TO SAY, IN
ORDER TO SHOW CONSTITUTIONAL
VIOLATION, THEN GO TO THE
PREJUDICE PRONG, YOU HAVE TO
SHOW THAT THE STATE
INTERCEPTED ATTORNEY-CLIENT
PRIVILEGE, HM MUNCATION, AN
HA THE STATE USED THOSE
COMMUNICATION AT TRIAL.
BOTH OF THOSE, YOU HAVE TO
SHOW BEFORE YOU EVEN
DEMONSTRATE A CONSTITUTIONAL
VIOLATION.
>> NOT NECESSARILY.
OR THE STATE MAY HAVE TO
PROVE THAT IT DID NOT SHOW,
THAT, THEY DIDN'T USE IT.
IT IS VERY HARD.
THE CASES SAY IT IS VERY
HARD FOR US TO PROVE.
>> FROM WHAT I READ OF THE
OTHER CASE, IT IS NOT A
VIOLATION IN ITSELF THAT THE
STATE TO INTERCEPT ATTORNEY-
CLIENT PRIVILEGE
COMMUNICATION.
THE VIOLATION OCCURS WHEN IT
USES THOSE ATTORNEY-CLIENT
COMMUNICATIONS TO PREPARE
FOR TRIAL OR USE THEM AT
TRIAL.
RIGHT.
THAT IS CORRECT, YOUR HONOR.
BUT THE QUESTION OF WHO HAS
-- I AM JUST SAYING, IT IS
NOT BEEN RESOLVED.
THERE IS NOT A TEST RIGHT
NOW IN THE JURISDICTION THAT
STATES WHO HAS THE BURDEN OF
PROVING --
>> WELL, YOU HAVE THE BURDEN
OPINION OF PROVING.
>> I AM NOT TALKING ABOUT
PREJUDICE.
MY POINT IS, YOU DON'T EVEN
REACH PREJUDICE UNTIL YOU
SHOW BOTH THE INTERCEPTION
AND THE USE.
>> THE USE.
>> THAT IS WHERE THE
CONSTITUTIONAL VIOLATION
ARISES ARE.
>> WELL, THERE ARE CASES
THAT SAY THAT ONCE YOU SHOW
THE VIOLATION, WELL, THERE
ARE CASES FROM WAY BACK THAT
WOULD SAY THAT IS ENOUGH.
DOING THAT IS ENOUGH.
>> RIGHT, MY POINT IS --
>> THEN, AT THAT POINT, ONCE
YOU SHOW THAT THEY DID THIS,
THAT THERE IS A PRESUMPTION
THAT THE STATE CAN REBUT.
I THINK WE ARE GOING AROUND
IN CIRCLES.
MY POINT IS THAT THE WAY I
READ THE CASES, THERE IS NO
VIOLATION INTERCEPTING
COMMUNICATION.
THE VIOLATION OCCURS IN
USING THOSE COMMUNICATIONS
FOR THE BENEFIT OF THE STATE,
AND IT SEEMS TO ME, YOU HAVE
TO SHOW THAT A VIOLATION
OCCURRED.
>> OH, I DON'T BELIEVE THE
CASES ARE THAT CLEAR.
THERE ARE ALSO CASES THAT
SAY THE STATE HAS -- ONCE WE
SHOW IT HAPPENS, THAT THE
STATE HAS TO SHOW, THAT THEY
DIDN'T USE THE INFORMATION.
THERE ARE CASES --
>> WHAT CASE SAYS THAT?
>> IN MY REPLY BRIEF, IT IS
MASBRONI, SOMETHING TO THAT
EFFECT.
THERE IS ONE CITED.
I DON'T -- IT IS SOMETHING.
IT IS IN THE REPLY BRIEF.
>> WHAT IS THE LANGUAGE?
WHAT IS THE LANGUAGE AT THE
HUFF HEARING IN WHICH YOU
SAY YOU HAVE A LIMITED
HEARING ABOUT THIS AND
RESERVICE THE RIGHT TO HAVE
A FURTHER HEARING?
THE JUDGE SAID OR DO YOU AND
THE STATE AGREE AND
STIPULATE THAT WE ARE ONLY
GOING TO COVER THIS IN A
CERTAIN WAY?
TELL ME WHAT THAT LANGUAGE
--
>> IT WAS MORE INFORMAL.
IT WAS MORE IN ESSENCE OF
WHAT THE STATE WAS SAYING,
LOO just didn't
happen at all.
and I I believe actually, that
they -- forgotten that they
that they had given us these
documents!!$$!!!!!!!!!!!!!!!!
documents, is what happened,
but --
>> Not asking about that, what!!$$!!!!!!
what --
>> Language, used at the Huff
hearing or court order that
said we are only going to have
a a limited hearing, on this,
and that hearing, shall treat,
this issue.
what --
>> It was -- I believe, it was
done, more informally, in the
discussions where I would
stand up, I would say I want,
you know just to be insure we
are clear on this, I want to
be insure we are clear that we
are just dealing with this
initial issue, at this point
and what is --
>> What is the initial issue,
as to whether there was a male
cover done at all the court
said all right that is all we
are going to deal with?
>> Yes, I can show the court
in the record, I was on this,
I was -- been on this case,
since, postconviction.,,,,,,,,,,,,,,,,,,,,,,,,,,,,
EVIDENTIARY HEARING HE COULD
ENVISION SOME CASES WHERE
PERHAPS THERE WAS A PRISONER
THERE WAS A SUSPICION A
PRISONER WAS LET THAT HE
THINKS A POTENTIAL WITNESS OR
THREATENING ANOTHER PERSON
WHERE A MAIL COVER MIGHT BE
DONE, BUT IN THIS CASE, HE
SAID -- THAT HE DID NOT
AUTHORIZE MAIL COVER THAT HE
IS THE LEAD PROSECUTOR DID NOT
SEE ANY OF MR. BOOKER'S MAIL
PRIVILEGED OR OTHERWISE, WAS
NOT PRIVY TO ANY
ATTORNEY-CLIENT PRIVILEGE
INTERCEPTIONS IN ANY WAY.
NOW WHAT I WOULD LIKE --
>> WHAT WAS THE PERSON, WHO
WENT BY THE PRISON THAT PICKED
UP THE WHAT WAS HE DOING.
>> WELL, IT APPEARS BASED ON
HIS TESTIMONY, THAT IT WAS,
ANTICIPATED, THAT THE DEFENSE
AT THE RESENTENCING HELD IN
1998, MIGHT PRESENT, SKIPPER
EVIDENCE, IN MITIGATION, AND,
THOUGH THE TEST WAS NOT
CRYSTAL -- TESTIMONY WAS NOT
CRITICIZESTAL CLEAR MR. PRICE
ORIGINALLY HAD BEEN OFFERED,
MAIL COVER BY DEPARTMENT OF
CORRECTIONS!!$$!!!!!!!!!!!!!!!!!!!!
CORRECTIONS, FIRMS --
OFFICIALS AND HAD SAID, NO AT
SOME POINT LATER, FOUR ISSUE
FIVE!!$$!!!!!!
FIVE MONTHS THERE, IS A
NOTATION IN HIS FILE, THAT HE
PICKED UP, MAIL COVER, NOW HE
DID TESTIFY AT THE EVIDENTIARY
HEARING THAT THE STATE
ATTORNEY DID NOT DIRECT HIM TO
DO THAT NOR DID HE DISCUSS
THAT WITH THE STATE ATTORNEY.
AND MR. GRAIBL WHO WAS
PROSECUTOR MR. SMITH WHO WAS
THE PROSECUTOR, TESTIFIED,
THAT THEY DIDN'T AUTHORIZE
MAIL COVER, THAT THEY DIDN'T
SEE ANY OF MR. BOOKER'S MAIL.
>> WHAT WAS IN THE STATE
ATTORNEY'S FILE, THAT THE
DEFENDANT FOUND, WHICH YOU
KNOW, SEE, SEEMS TO ME, THAT
IT IS EITHER, THERE WAS, OR
THERE WASN'T.
AND THE DEFENSE, SEEMS TO SAY,
THAT THEY FOUND THIS, IN THE
STATE ATTORNEY'S FILE.
SO, DID THE STATE ATTORNEY,
HAVE INFORMATION IN THEIR
FILE, INDICATING THERE WAS A
MAIL COVER?
>> MR. PRICE SAID THAT HE
WOULD HAVE FILED, HIS MEMOS,
IN THE STATE ATTORNEYS THEY
WILL BES MR. GRAIBL, WOULD
HAVE SEEN THEM, OR NOT, HE
DOES NOT KNOW, BUT, MR. GRAIBL!!$$!!!!!!!!!!!!!!!!!!
MR. GRAIBL, TESTIFIED AT THE
EVIDENTIARY EVIDENTIARY
HEARING NO KNOWLEDGE OF MAIL
COVER, EITHER ATTORNEY-CLIENT
PRIVILEGE OR OTHERWISE HE DID
NOT AUTHORIZE IT, AND
MR. PRICE, TESTIFIED
SPECIFICALLY AT THE
EVIDENTIARY HEARING THAT HE
NEVER DISCUSSED MAIL COVER
WITH EITHER PROSECUTOR, AND
NEITHER ONE OF THEM AUTHORIZE
THE IT.
I THINK ONE OF THE THINGS,
THAT WE NEED IS THAT -- AND
THE COLLATERAL COURT JUDGE
SPECIFICALLY FOUND, THAT
MR. GRAIBL'S TESTIMONY THAT HE
WAS -- REVIEWED NONE OF MR.
BOOKER'S MAIL -- WAS CREDIBLE,
MR. SMITH, TESTIMONY THAT HE
DID NOT AUTHORIZE MAIL COVER
HE DID NOT SEE ANY OF MR.
BOOKER'S MAIL HE WAS NOT PRIVY
TO ANY PRIVILEGED, INFORMATION
WAS CREDIBLE AND
MR. KEARNTESTIFIED AND I HAVE
TO DISPUTE, ONE OF THE
LIMITATIONS THAT MR. BRODY
EXPLAINED ON THE EVIDENTIARY
HEARING, THE ONLY ISSUE REALLY
IN DISPUTE, FIRST OF FALL LOOK
AT THE MOTION FILED IN THE
TRIAL COURT, MR. BRODY OR
MR. BOOKER NEVER POINTED TO A
SINGLE STRATEGY THAT WAS
STOLEN!!$$!!!!!!!!!!
STOLEN, NEVER POINTED TO A
SINGLE PLACE IN THE RECORD
WHERE THAT EVEN GAVE RISE TO
AN INFERENCE THAT
ATTORNEY-CLIENT PRIVILEGE WAS
ENTERED WITH, AND, BUT HE DID
ACKNOWLEDGE THAT IT WAS THE
BURDEN OF THE STATE TO SHOW
PREJUDICE THE COURT THAT THE
COLLATERAL COURT, SAID, WELL
WE WILL DEAL WITH THAT, IF WE
DETERMINE, THAT
ATTORNEY-CLIENT PRIVILEGE MAIL
WAS INTERCEPT AND USED.
>> GO BACK SORT OF THE SUTEM!!$$!!!!!!!!
SUTEMNDING!!$$!!!!!!!!!!!!!!!!!!
SUTEMNDING, THING I'M LOOKING
AT THE ORDER, GRANTING THE
HEARING, AND THAT IS THE THE
ORDER ON THE HUFF HEARING AS
THE CLAIM TWO, THE JUDGE
STATED THAT HE WAS GOING TO
HOLD A HEARING, ON THE CLAIM
THAT THE STATE KNOWINGLY
INTERFERED, AND THIS OTHER
PHRASE, AND USING THE
INFORMATION, GLEANED FROM
COMMUNICATIONS!!$$!!!!!!!!!!!!!!!!!!!!!!!!!!
COMMUNICATIONS, AGAINST THE
DEFENDANT AT TRIAL, IS THERE
ANYTHING OTHER THAN THIS ORDER
THAT WE NEED TO LOOK TO AND
BECAUSE THIS SAYS, THAT THEY
ARE GOING TO TURN BOTH WHETHER
IT OCCURRED WHETHER IT WAS
USED AGAINST THE DEFENDANT, SO
>> YES, SIR.
>> IS THERE ANOTHER ORDER.
>> NO, SIR, WHAT -- I THINK
WHAT MR. BROADIE IS REFERRING
TO THE FACT THAT THE JUDGE
LEFT FOR ANOTHER DAY PREJUDICE
I THINK PRIMARILY WAS ON THE
BARE BONES PLEADING PRESENTED
TO THE COURT BECAUSE AS I SAY
MR. BOOKER NEVER IDENTIFIED A
SINGLE, PIECE OF MAIL THAT HE
ALLEGED WAS TAMPERED WITH
NEVER ALLEGED, IN FACT HE
DIDN'T ALING, THE BETTY BOE,
AND MRS. JILL YOON ANDERSON I
DON'T KNOW WHETHER ACTUALLY
MARRIED EVERY WHERE, BUT HE
REFERRED TO HER AS WIFEY, I'M
NOT INSURE OF THEIR ACTUAL
STATUS HE DIDN'T EVEN ALLEGE
THAT.
>> WHAT DID PRICE, TESTIFY TO,
IN OTHER WORDS, WHAT DID PRICE
SAY THAT WOULD GIVE RISE TO
THE $$DEFENDANT'S CLAIM, THAT,
YES, THERE WAS SOMETHING LIKE
AN INTERCEPTION OF MAIL, I
ACTUALLY COLLECTED THE
INTERCEPTED MAIL, AND READ IT.
AND, FILED REPORTS, IN THE
STATE ATTORNEY'S FILE, IN THE
CASE, DID PRICE TESTIFY TO
THAT?
>> HE TESTIFIED, THAT HE
BELIEVES THAT THE MEMOS,
ACCURATELY REFLECTED WHAT HE
DID HE HAD NO INDEPENDENT
RECOLLECTION OF EVER READING,
ANY OF THE MAIL, HE SAID HE
WOULD JUST TAKE THE LETTERS TO
THE STATE TEN OR'S OFFICE HE
BELIEVED.
>> WERE THE MEMOS PLAY PLA --
PLACED IN EVIDENCE.
>> THE MEMOS WERE PLACED IN
EVIDENCE YOU HAVE THAT.
>> WHAT DO THE MEMOS SHOW.
>> THE MEMOS SHOW THAT HE WAS
AT THE PRON ENTERING HE --
INTERVIEWING MADE NOTE
INTERVIEWED 99 DEPARTMENT OF
CORRECTIONS OFFICIALS, THE
MEMO SAID ON TWO DIFFERENT
OCCASIONS THAT HE PICKED UP,
ANOTHER BATCH OF MAIL COVER,
AND IN THAT MEMO, HE POINTED
TO TWO COMMUNICATIONS APPARENT!!$$!!!!!!!!!!!!!!
APPARENTLY, FROM BOOKER, ONE,
TO MISS JILLIAN ANDERSON THERE
WAS A SUSPICION HE WAS
THREATENING HERE BECAUSE HE
HAD, HE HAD, FONDLED HER
TOUCHED HER DURING A CONTACT
VISIT, AND HAD BEEN FORBIDDEN
TO DO THAT BUT CONTINUED TO DO
THAT AND THERE WAS SOME,
APPARENTLY WHAT THE ONLY THING
WE CAN GLEAN THE MOST LOGICAL
CONCLUSION FROM THE MEMO WAS
THAT, THAT HE HAD -- HAD
THREATENED HER THEY WERE
CONCERNED ABOUT THAT, THE
OTHER ONE WAS TO BETTY BO, WHO
WAS A WITNESSED AT THE
MITIGATION!!$$!!!!!!!!!!!!!!!!!!
MITIGATION, AT THE HEARING,
SECOND PENALTY PHASE, HAD TO
DO WITH AN UNRELATED INCIDENT,
ABOUT MRS. ANDERSON, AND
GUARDS BEING DISPLINED FOR
ANOTHER THING.
>> LET'S JUST TAKE IT FROM
THERE, ASSUME, THEN, THE --
WORST-CASE SCENARIO, THAT THAT
WHAT IS HAPPENED.
ALL RIGHT, NOW DOES THAT PROVE
A CLAIM IN THIS CASE?
>> NO.
>> NO, SIR IT DOESN'T PROVE A
CLAIM, PRESUMING THAT MR. AND
IT APPEARS BASED ON THE FACT
THAT BOTH MR. GRAIBL AND
MR. SMITH TESTIFIED THEY
DIDN'T AUTHORIZE IT NOR DID
THEY WERE THEY PRIVY TO IF I
HAVE THIS INFORMATION, EVEN
THE LETTERS TO BETTY BO AND TO
MRS. ANDERSON, THAT HE WAS
ACTING IN SOME WAY ULTRA
VIRRIES!!$$!!!!!!!!!!!!
VIRRIES, ASSUMING THAT HE
INTERCEPTED ROUTINE MAIL NOT
ATTORNEY-CLIENT PRIVILEGED
MAIL, THERE STILL HAS TO BE
THE NEXT STEP, AND THEN THAT
IS COMMUNICATION TO THE
PROSECUTION AND WE KNOW THAT
IS WHERE IT STOPS, BECAUSE THE
BOTH PROSECUTORS TESTIFIED,
THAT THEY DID NOT NOT PRIVY TO
ANY COMMUNICATION, AND
MR. KEARNS, ONCE YOU LOOK AT
THE EVIDENTIARY HEARING YOU
WILL SEE THAT I I WAS ALLOWED
AND MR. PRODDY WAS NOT STOPPED
FROM DOING SO, I PERCEIVED
TOGETHER BOTH DID YOU
AUTHORIZE IT DID YOU SEE IT
DID YOU USE IT TO THE BENEFIT
OF IT STATE OF THE DETRIMENT
TO MR. BOOKR THE ANSWER ALL
THREE OF THOSE WAS NO.
WE DIDN'T, AND THE COLLATERAL
COURT FOUND THOSE PROSECUTORS,
CREDIBLE AND I ASKED
MR. KEARNS, WE ASKED
MR. KEARNS, WAS THERE
ANYTHING, IN THE COURSE OF YOU
PRESENTS THIS MITIGATION CASE
I THINK THAT IS ALSO
IMPORTANT, THIS WAS A
MITIGATION CASE, IT WAS
UNREFUTED!!$$!!!!!!!!!!!!!!!!
UNREFUTED, IF YOU LOOK AT THE
TESTIMONY, OF MRS. VO THERE
WASN'T A SINGLE QUESTION BY
THE PROSECUTOR ABOUT, PURCHASE
CORRESPONDENCE WITH BOOKER
ABOUT CONTENT OF THE
CORRESPONDENCE IT WAS SIMPLY
MRS. BO, ARE YOU AWARE OF THE
FACTS OF THIS MURDERER.
>> NO THAT WAS THE ONLY THING
THAT WAS EVER ASKED OF MRS.
BO, SO, MR. KEARNWAS ASKED WAS
THERE ANYTHING IN EVERY THE
COURT OF REPRESENTATION THAT
GAVE RISE TO A CONCERN, ON
YOUR PART, THAT THE STATE HAD
READ ANY OF MR. BOOKER'S
ATTORNEY-CLIENT MAIM OR WERE
PRIVY TO ANY PRIVILEGED
ATTORNEY-CLIENT COMMUNICATIONS!!$$!!!!!!!!!!!!!!!!!!!!!!!!!!
COMMUNICATIONS.
ABSOLUTELY NOT, FOUND CREDIBLE
BY COLLATERAL COURT JUM.
>> I WOULD LIKE TO JUST ASK
YOU A QUESTION ABOUT A LOT OF
CLAIMS, SUMMARILY DENIED, AND,
THIS CASE OH, KURD AFTER WE
AMENDED THE RULE, NOT SEEING
VERY MANY CASES ANYMORE, WHERE
CLAIMS AT LEAST ALING THINGS
LIKE YOU KNOW FAILURE TO
INVESTIGATE PRESENT MITIGATION!!$$!!!!!!!!!!!!!!!!!!
MITIGATION -- THE FAILURE TO
ATTACK THE PRIOR VIOLENCE ON
-- JUST SUMMARILY DENIED I'M
MORE -- CONCERNED ABOUT THAT
IN THIS CASE, WHY -- DON'T YOU
THINK OUR RULES PRETTY CLEAR
THAT IF THERE IS A COLORABLE
CLAIM PRESENTED UNDER A 3.851
THAT THE JUDGE SHOULD BE
GRANTING AN EVIDENTIARY
HEARING ON -- THE ISSUE?
>> WELL, YES, MA'AM, BUT,
FIRST OF ALL I WOULD LIKE TO
POINT OUT THAT I ARGUED WHAT
WE GOT TO THE HUFF HEARING
THAT THIS WAS A NEW RULE CASE,
MR. BROADIE$$'S PROTESTED AND
SAID, BECAUSE THEY HAD FILED
THE INITIALLY MOTION PRIOR TO
ONE OCTOBER 2ND O 001 ITS THAT
WAN OLD RULE DAIS THE JUDGE
AGREED HE SAID IT IS IN THE
RECORD WHERE HE SAID THE STATE
COMMITTED TO THE FACT THAT
THIS WAS AN OLD RULE CASE.
>> AND,IVE GOT THAT CITATION!!$$!!!!!!!!!!!!!!
CITATION -- ON THE RECORD,
PAGE -- 210 OF THE POST
EVIDENTIARY HEARING WHERE
MR. BRODY IP INSISTED THIS WAS
AN OLD RULE CASE, HOWEVER EVEN
IF THIS COURTDITION GREECE
SAYS THIS AN -- A NEW RULE
CASE, THE -- DISAGREES THE
CLAIM MR. BRODY IS MAKING HERE
WAS THAT TRIAL COUNSEL WAS
INEFFECTIVE FOR SAILING TO
UNDERMINE THE FACTUAL
APPLICABILITY OF THE PRIOR
FELONY!!$$!!!!!!!!!!
FELONY, TRIAL COUNSEL COULDN'T
DO THAT IT WAS CONVICTION FOR
AGGREGATED BATTERY, ON ITS
FACE A PRIOR VIOLENT FELONY.
>> --
>> CORRECT ME IF I'M WRONG,
BECAUSE -- YOU CAN'T, DENY THE
FACT THAT THE CONVICTION, BUT,
WHAT WEIGHT THE JURY IS GOING
TO GIVE TO IT CERTAINLY CAN
BE, MITIGATED, BY THE
CIRCUMSTANCES, YOU KNOW,
SOMETHING THAT IS A PRIOR
VIOLENT -- SCORER CONVICTION
OR SECOND DEGREE MURDER WE
LOOK AT WHETHER IT WAS
SOMETHING THAT WAS -- YOU
KNOW, AN ACCIDENT, OR YOU KNOW
SOMETHING, SO I DON'T REALLY
UNDERSTAND, HOW THIS BECAUSE
IT IS A PRIOR VIOLENT FELONY I
DON'T THINK WE HAVE EVER HELD
THAT A THE DEFENSE, ISN'T ABLE
TO EXPLAIN THE CIRCUMSTANCES,
JUST LIKE THE STATE CAN
EXPLAIN THE CIRCUMSTANCES TO
EITHER, SHOW IT IS REALLY A
BAD PRIOR VIOLENT FELONY OR IT
IS NOT.
>> YES YOUR HONOR AND I THINK
YOU ARE CORRECT, EACH IF YOU
ASSUME, AS AGAIN, DESPITE THE
PROTESTS OF THE DEFENSE AT THE
HUFF HEARING THAT YOU ARE
GOING TO ANALYZE THIS UNDER
THE NEW LIBERAL RULE FOR
EVIDENTIARY HEARINGS THE
DEFENSE IS STILL GOT THE
BURDEN OF PRESENTING A PRIMA
FACIE CASE OR COLORABLE CLAIM
YOU SEE PUT IT IN THIS CASE
INITIALLY PLEADING IDENTIFIED
NO ONCE THAT WOULD TESTIFY WAS
GIVEN 30 DAYS TO AMENDMENT HIS
CLAIM.
>> AT WHATEVER, THE HUFF
HEARING, WHICH WOULD BE A CASE
MANAGEMENT HEARING, THE JUDGE
ASKS WHAT WITNESSES WOULD YOU
PUT ON TO ESTABLISH THIS.
>> EXACTLY.
>> AND THERE WAS NO --
>> WELL.
>> PRESENT NOD WITNESSES,
FAILED TO MEET ANY OF THE
STANDARDS OF THE NELSON
VSTATE, SHOWING THAT THE
WITNESSES WAS IDENTIFY THE
WRNGS WHETHER THEY WERE AVAIL
BUILDING ET CETERA SO MR. SO
THE TRIAL COURT GAVE HIM 30
DAYS TO AMEND, HE THEN, NAMED
THREE WITNESSES TWO ON DEATH
ROW WHO HE SAID MIGHT TESTIFY,
THAT A THREAT WAS MADE, IT WAS
NEVER EXPLAINED, WHEN THE LET
THAT WAS MADE, WHAT POINT, WAS
THERE AN IMMINENT THREAT, NO
WHAT THE THREAT WAS.
>> IS NOT THAT, I GUESS AGAIN
TRYING TO CITE NEW RULE/OLD
RULE WHEN HERE DON'T SPEND A
LOT OF ENERGY TRYING TO SAY
COME ON YOU GOT TO TELL US IN
DETAIL!!$$!!!!!!!!!!
DETAIL, THAT IS WHY WE HAVE
THE EVIDENTIARY HEARING, AND
--
>> THIS COURT SAID IT IS
OPPOSITE IN NELSON.
>> BUT NELSON WAS UNDER 3.850.
AND I THINK, THAT AND AGAIN IF
YOU ARE SAYING, THAT THIS WAS
NOT UNDER THE NEW RULE, THAT
MAY BE ANOTHER ISSUE, BUT, MY
UNDERSTANDING, WHAT WE ARE
TRYING TO DO IS SAY, YOU SET A
CLAIM DOWN HE COULD HAVE
PRESENTED SOMETHING TO MITT
COMAIT THIS, THEN WHAT YOU DO
IS THROUGH THE CASE MANAGEMENT
CONFERENCES!!$$!!!!!!!!!!!!!!!!!!!!
CONFERENCES, THEY LUIS HERE
ARE WITNESSES THAT WILL STATE
IT SINCE DON'T YOU HAVE
AUTOMATIC DIFFERSRY IT CABINET
BE, IT CABINET KNOW IN EVERY
DETAIL!!$$!!!!!!!!!!
DETAIL, WHAT WOULD BE PUT ON.
>> WELL, THE RULES STILL
REQUIRES THAT YOU MAKE A SWORN
ALLEGATION, THAT PRESENTS A
COLORABLE CLAIM, AND IN THIS
CASE, EVEN IF YOU LOOK AT THE
HUFF HEARING, WHEN HE GOT TO
THE HUFF HEARING AND WES --
WAS TALKING ABOUT TREWICK, THE
OTHER DEATH ROW IN MATE HE
SAID THEY WERE IN CELLS NEXT
TO HIM MIGHT HAVE HEARD A
THREAT.$$!!!! I THINK THE COLLATERAL
COURT CORRECTLY, BASED ON
THAT, REPRESENTATION, PROPERLY
DENIED INSIGHT SO THEY DIDN'T
SAY, WELL WE HAVE NOW
INVESTIGATED IT HERE IS ALL
THIS EVIDENCE WE COULD HAVE
PUT ON.
>> ABSOLUTELY NOT IN FACT.
>> WASN'T THAT ON THE FAILURE
TO INVESTIGATE AND PRESENT
MITIGATION!!$$!!!!!!!!!!!!!!!!!!
MITIGATION?
>> YOUR HONOR, AGAIN.
>> IS THAT THE THING ABOUT HIM
BEING A POET.
>> YES, MA'AM WHAT HAPPENED AT
THE INITIALLY HE MADE NO CLAIM
WHAT WITNESSES THAT TRIAL
OCCURRENCE WAS INEFFECTIVE FOR
FAILING TO CALL AGAIN, FAILED
TO SET FORGOT THEIR -- FOURTH
NAMES WHAT TESTIMONY WOULD
HAVE BEEN AT THE PENALTY PHASE
THERE WERE SIX, POETS, AND
MEMBERS OF THE LITERARY
COMMUNITY INCLUDING, THE
EDITOR-IN-CHIEF OF WESLEY AND
PRESS, WHICH ALL WITNESSES
ADMITTED WAS VERY PRESTIGIOUS
WHO TESTIFIED THAT NOT ONLY
DID MR. BOOKER GET A BOOK
PUBLISHED CALLED TUG, BUT HE
ALSO ASSIGNED ROYALTIES TO
MRS. ZIRAMSKY A RELATIVE OF
MRS. HARMON THAT TESTIMONY
CAME OUT THE TRIAL JUDGE, GAVE
MR. BOOKER THREE -- 30 DAYS TO
AMEND HIS CLAIM TO DEMONSTRATE
NOT ONLY WHO THESE WITNESSES
WERE, AND UP THE WOULD HAVE
BEEN AVAILABLE TO TESTIFY AT
TRIAL, BECAUSE, YOU KNOW THE
BASES OF NELSON ONE CAN'T BE
INEFFECTIVE IF THESE
WITNESSES, WOULD NOT BE
AVAILABLE TO TRIAL, OR WOULD
BE CUMULATIVE, IT WOULDN'T
UNDERMINE THE CONFIDENCE IN
THE CASE, THAT STILL I THINK
GOOD LAW IN THIS COURT, IS
STILL DISCUSSING THAT, AND, SO
HE IDENTIFIED, SIX WITNESSES,
BY NAME, ONE OF WHICH WAS
MR. HENRY GATES, WHOSE
AFFIDAVIT WAS PRESENTED AT THE
SPENCER HEARING TRIAL COUNSEL
DIDN'T STOP AT THE PENALTY
FACE HE ALSO ENTERED
ADDITIONAL EVIDENCE AT SPENCER
HEARING IN THAT AFFIDAVIT
MR. GATES SAID HE WASN'T
AVAILABLE BUT THE ISSUE FOR
THE COLLATERAL COURT YUM THAT
IS MR. BOOKER NEVER SET FORGOT
WITH ANY OF THESE WITNESSES,
HOW, WHAT SUBSTANTIVELY
DIFFERENT WOULD HAVE BEEN
ABOUT THEIR IT TESTIMONY, THAT
WASN'T ALREADY PRESENTED TO
THE JURY BY THESE SIX,
WITNESSES ALREADY PRESENTED.
AND, MR. BOOKER NEVER OUTLINED
WHAT THEIR -- THE SUBSTANCE OF
THEIR TESTIMONY WOULD IT WOULD
HAVE BEEN HOW IT WOULD HAVE
MADE A DIFFERENCE.
AND, SO THAT IS THE BASES --
BASIS OF THE COLLATERAL
COURT'S JUDGES' IN EVERY DAY
HE HAD WOULD HAVE BEEN MERELY
CUMULATIVE SPEFG GIVEN THE
FACT MR. BOOKER NEVER SET
FORTH, WHAT TESTIMONY WOULD
HAVE BEEN.
>> CONCLUSIVELY -- REFUTED --
BECAUSE OF THE NATURE, REALLY
OF WHAT THIS MITIGATION WAS,
IT WAS AT THE MOST MORE OF THE
SAME NOT ABOUT APPROXIMATE
OTHER THINGS THAT IS CHILDHOOD!!$$!!!!!!!!!!!!!!!!
CHILDHOOD, OR.
>> EXACTLY.
>> IN OTHER WORDS WHAT I'M
CONCERNED ABOUT SOMEBODY SAID
LISTEN I COULD YOU DIDN'T PUT
MITIGATION ON, ABOUT,
CHILDHOOD ABUSE, AND, I'M, I
THINK AT SOME POINT ESPECIALLY
ON NEW RULE, WE WANT FOR,
3.580, WE, DON'T NECESSARILY
WANT THE 3.851 WE WANT TO MAKE
INSURE THAT IT IS COMES OUT AT
THE EVIDENTIARY HEARING AND
NOT, TRY TO -- BAR SOMEONE
BECAUSE PROCEDURALLY
THIEFRNTHS DOTTED EVERY I.
>> ABSOLUTE HE COULD HAVE SORT
OF THREW THAT IN THERE COULD
HAVE BEEN WITNESSES TO TESTIFY
ABOUT CHILD ABUSE NEVER NAMED
ANY OF THOSE ONCE, DR. BERNARD
TESTIFIED AT THE PENALTY CASE,
ABOUT HIS CHILDHOOD ABUSE
FISCAL ABUSE VERBAL ABUSE, HIS
SEXUAL ABUSE BY THE
BABYSITTERS!!$$!!!!!!!!!!!!!!!!!!!!
BABYSITTERS,DR. BERNARD AT THE
PENALTY FACE -- PHASE,
PROVIDED OWL THAT EVIDENCE.
>> CORRECT ME IF WRONG ISN'T
THERE A PROCEDURE IN NEW RULE
YOU LUIS YOUR WITNESSES US
THAT IS WOULDN'T PUT IT IN IT
IS NOT THAT YOU PUT IN THE
CLAIM BUT I HAVEN'T LOOKED AT
THE RULE FOR A WHILE, BUT, IF
THE ONCE ARE LIST -- WITNESSES
ARE LISTED SOME POINT BEFORE
THE EVIDENTIARY HEARING.
>> SUPPOSED TO BE DONE
ACCORDING TO NEW RULES CASE
MANAGEMENT THAT WAS NEVER
DONE.
>> ALL THIS DON'T OCCUR
BECAUSE I IT THIS WAS BEING
DONE UNDER OLD RUE.
>> I'LL SAYING IF YOU ANALYZE
UNDER NEW RULE IT IS
INSUFFICIENT BECAUSE YOU
124I78 TO DEMONSTRATE HOW
CALLING THESE WITNESSES WOULD
HAVE MADE A DIFFERENCE, AND --
MAY I FINISH MY ANSWER.
>> FINISH YOUR ANSWER.
>> HOW -- YOU STILL HAVE TO
PRESENT A LEGALLY SUFFICIENT
CLAIM AND THAT I THINK THE
FACT THAT THE COLLATERAL COURT
STILL HAS SOME LEEWAY, TO ACT
AS A INVESTIGATE KEEPER TO
MAKE INSURE THAT THERE IS A
PRIMA FACIE CASED EVEN UNDER
THE NEW RULE.
>> IN CONCLUSION, WE WOULD ASK
THAT THIS COURT -- COURSE
AFFIRM THE COLLATERAL $$COURT'S
DENY$$!!!!IAL OF MR. BOOKER'S 3.851
MOTION.
>> ALL RIGHT, REBUTTAL?
>> -- ACTUALLY WE HAD A
HEARING EARLIER IN THIS CASE,
BEFORE, MISS -- WAS INVOLVED
THE COURT MADE A RULING WE
WERE GOING TO GO UNDER THE
OTHER RULES THE STATE
INDICATED IT WAS A WANTED TO
BE A NEW RULE CASE THERE WAS
ACTUALLY A HEARING IN A COURT
RULING WE WERE GOING UNDER,
THE OLD RULE EARLY ON, SEVERAL
YEARS AGO, BUT WHAT HAPPENS
THIS NELSON CASE WAS PRESENTED
TO THE COURT, AND THAT IS WHY
THE COURT, GAVE ME TIME TO
AMEND, MOST THAT THE POINT
MOST PEOPLE, YOU KNOW IF THE
EARLY PLEADING WAS
INSUFFICIENT, IS THAT MOST
PEOPLE WERE CONCEDE TO GO A
HEARING, AT THAT POINT, AND --
PUT THE AMENDED MOTION,
CLEARLY NAMES WITNESSES IT
SAYS IT WOULD HAVE SHOWN THAT
THERE WAS THREAT TO BOOKER'S
LIFE THERE WAS A PRISON RIOT.
>> DOESN'T IT SAY THEY MIGHT
THEY MIGHT --
>> IT SAYS "MIGHT" BECAUSE I
DON'T KNOW WHAT THEY WILL
ACTUALLY TESTIFY TO.
>> I'M --
>> -- THAT IS WHY IT WAS USED
-- BUT IT WOULD I DON'T THINK
WE SHOULD GET DOWN TO WHETHER
I USED A SUBJUNKIVE OR I MEAN
IT IS A SHAME IF WE DON'T GET
A HEARING ON SOMETHING BECAUSE!!$$!!!!!!!!!!!!
BECAUSE --
>> TO WERE A EXTENT TO YOU
ASSERT THAT YOU COULD HAVE
RELITIGATED!!$$!!!!!!!!!!!!!!!!!!!!
RELITIGATED, THIS WAS I
ASSUME, WOULD HAVE BEEN A
RELITIGATION OF THAT UNLIKE!!$$!!!!!!!!!!BATTERY
THAT IS INVOLVED BECAUSE WHAT
YOU ARE DOING SAYING THIS
SELF-DEFENSE!!$$!!!!!!!!!!!!!!!!!!!!!!
SELF-DEFENSE, THROWS THE FIRE
BOMB BECAUSE HE HAD BEEN LET
THATTENED.
>> EXPLAINS TO THE JURY THIS
WAS IMPORTANT IT EXPLAINS TO
THE JURY, WHAT HATCHED IT WAS
IN THE CONTEXT OF GUARD
KILLING.
>> MR. KNIGHT, ALSO MENTIONED
KILLED A GUARD THERE, WAS --
THERE WERE WITNESSES MRS.
CAREY WAS IDENTIFIED AS A
POSSIBLE WITNESSES A NUMBER OF
PEOPLE, WOULD HAVE PUT THIS
INTO CONTEXT IT WOULDN'T HAVE
MADE BOOKER OUT THAT HE DIDN'T
DO IT.
IT WOULD HAVE PUT IT IN
CONTEXT.
THAT IS ALL --
>> -- TALK TO WITNESSES WHY
NOT TUT THEM IN YOUR MOTION
AND SAY THAT THEY WILL
TESTIFY, BECAUSE I TALKED TO
THEM?
>> I -- I -- WITH SOME OF
THESE GUYS, THROUGH VERIFY
WHAT THEY ARE GOING TO SAY I
DON'T KNOW.
-- WHAT THEY ARE GOING TO SAY,
I DID -- MR. BOOKER COULD HAVE
TESTIFIED.
AND I TOLD THE COURT THAT AS
WELL.
P TO THIS I SAID SUSAN CAREY,
A LAWYER, WHO KNEW ABOUT THE
FACT THAT THIS COULD HAVE
TESTIFIED, AT THE HEARING.
>> HAD YOU TALKED TO THE
WITNESSES BEFOREHAND.
>> YES,IES, BOOKER BOOKER HAD
TALKED TO THEM, FOR ME I CAN'T
HAVE ACCESS TO -- THESE PEOPLE
ARE ON DEATH ROW.
BOOKER HAD TALKED TO THEM.
>> THAT IS WHY I -- WHERE I
GOT THAT INFORMATION YOUR
HONOR.
>> STRIKE YOUR OTHER BLOWS YOU
ARE WELL BEYOND YOUR TIME.
>> OKAY MY BLOWS SUCH AS THEY
ARE, ARE I WOULD JUST SAY I
WILL PRESENT THE COURT, WITH
THE -- CITES IN THE RECORD,
SHOWING THAT WE WERE
PROCEEDING WITH A BIFURCATED
HEARING ON THIS PREJUDICE
ISSUE.
>> ON THE ORDER OF THE COURT
DOES SAY THAT THE HEARING IS
GOING TO BE ON BOTH WHETHER IT
WAS INTERCEPTED WHETHER IT WAS
USED DOES IT NOT?
>> THAT ORDER DOES SAY THAT.
>> IS THAT NOT THE ORDER --
>> POINTED OUT BUT THE HEARING
DID NOT -- DID NOT COVER THAT
>> OBJECT.
>> I BELIEVE HE IS ACTUALLY
TALKING ABOUT ATTORNEY-CLIENT,
PRIVILEGE.
>> I BELIEVE THAT THE RECORD
SHOWS THAT THERE WAS A MAIL
COVER, THAT THIS WAS DONE, AND
THE $$COURT'S ORDER IS NOT BASED
UPON THE RECORD.
P.
>> OKAY, THANK YOU.
>> THANK YOU, WE THANK BOTH
PARTIES WE'LL TAKE THE CASE
UNDER ADVISEMENT