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Norman Grim v. State of Florida
SC06-122 | SC06-1575
THE NEXT CASE THIS MORNING,
IS, GRIM VERSUS STATE OF
FLORIDA.,,,,,,,,
>> GOOD MORNING.
PLEASE THE COURT.
JEFF HAZEN.
APPELLANT --
[LOW AUDIO]
>> CAN I GET A
CLARIFICATION.
MR. GRIMM MADE IT PRETTY
CLEAR IN THE UNDERLYING CASE
THAT, HE, WANTED THE DEATH
PENALTY.
HIS, IS IT NOW, HIS POSITION
THAT WE SHOULD IGNORE ALL OF
THAT THOSE EXPLICIT
DIRECTIONS?
HE'S NOW QUESTIONING THAT HE,
HIS, INSTRUCTIONS TO HIS
CLIENT?
>> I DON'T THINK, THAT'S ONE
THING I DID WANT TO MENTION.
AS ARGUMENT.
THAT IS SORT OF A
MISPERCEPTION THAT MR. GRIMM
WANTED THE DEATH PENALTY.
MR. GRIMM --
>> HE WANTED TO, IF HE WAS
FOUND GUILTY, HE WANTED NO
OTHER PUNISHMENT BUT THE
DEATH PENALTY.
>> I DON'T THINK HE WANTS TO
DIE.
I THINK THAT'S SOMETHING
THAT -- THERE WAS A WAIVER
OF MITIGATION.
I'M NOT CLEAR THERE WAS NOT
A WAIVER BUT HE DOES NOT
WANT TO DIE.
>> SO YOU HAVE YOUR CLIENT'S
FULL APPROVAL OF, OF,
ATTACKING THE PENALTY PHASE
OF THIS CASE?
>> YES, MA'AM.
YES, MA'AM..
AND I THINK, WANTED TO POINT
OUT IF YOU LOOK AT JUDGE
BELL'S -- FOR PURPOSES OF
THIS ARGUMENT.
>> THAT'S FINE.
>> IF YOU LOOK AT HIS ORDER
HE FINDS SPECIFICALLY IN HIS
ORDER HE NEVER EXPRESSED HIS
DESIRE TO DIE.
SO, BUT I DO AGREE THERE WAS
A WAIVER OF MITIGATION.
AT ANY RATE I WOULD LIKE TO
FOCUS ON INEFFECTIVE COUNSEL
AS TO THE FAILURE TO
PRESENTMENTS TALL HEALTH --
PRESENTMENT TALL HEALTH,
DRUG USE EVIDENCE IF TIME
PERMITS.
>> I'M HAVING TROUBLE, HOW
CAN YOU, IF SOMEONE
EXPLICITLY KNOWINGLY
INSTRUCTED COUNSEL NOT TO
PUT ON MENTAL HEALTH
MITIGATION HOW CAN IT BE
INEFFECTIVE NOT TO PUT ON
MENTAL HEALTH MITIGATION?
>> SURE.
I THINK WHAT THE THEME THAT
RAN THROUGH THE TRIAL OF
THIS CASE AND, SORT OF --
WAIVER OF MITIGATION.
MY ARGUMENT, I THINK WHAT
YOU WILL SEE THE THEME OF
POST-CONVICTION WAS WAIVER
WAS BASED ON, THERE WAS A
FAILURE TO INVESTIGATE
CERTAIN SPECIFIC EVIDENCE
WHICH THE TRIAL ATTORNEYS
WERE AWARE OF, WHICH THEY
ACKNOWLEDGED THEY WERE AWARE
OF.
THAT RENDERS THAT WAIVER
INVALID.
TRIAL ATTORNEYS IN THIS CASE,
DR. LARSON WAS RETAINED AT
THE TRIAL PROCEEDINGS IN
THIS CASE AND HE EXAMINED
MR. GRIMM AND HE, FOUND THAT,
BASED ON HISS VALUATION
WHICH HE REVIEWED, RECORDS
FROM THE AVALON CENTER WHICH
MR. GRIMM CHECKED HIMSELF
INTO VOLUNTARILY HE FOUND
THERE WAS AN UNDERLYING,
MENTAL DISEASE INTERMITTENT
EXPLOSIVE DISORDER AND
MR. GRIMM WAS BEING
PRESCRIBED PROZAC AND
DEPAKOTE IN ADDITION TO
CONSUMING MASSIVE AMOUNTS OF
ALCOHOL.
WHAT DR. LARSEN DID HE
ADVISED MR. GRIMM'S TRIAL
ATTORNEYS WE'VE GOT SOME
ISSUES GOING ON HERE WITH
THE ISSUE OF PROZAC AND
DEPAKOTE, UNDERLYING MENTAL
CONDITION.
YOU NEED TO HIRE A DRUG
EXPERT ON.
THIS I'M NOT QUALIFIED TO
LOOK INTO THIS.
I'M NOT QUALIFIED TO GIVE
YOU, THERE COULD BE THINGS
GOING ON HERE THAT YOU NEED
TO LOOK AT.
AT THE EVIDENTIARY HEARING
IN THIS CASE, MR. GRIMM'S
TRIAL ATTORNEYS TESTIFIED
THAT THEY WERE AWARE OF THE
RECOMMENDATION FROM
DR. LARSEN.
THEY BOTH SAID, HE
RECOMMENDED THAT TO US.
AND THEY BOTH ACKNOWLEDGED
THAT THEY DID NOT FOLLOW UP
ON THAT RECOMMENDATION.
NOW WHAT THEY SAID WAS,
MR. , HIS GUILT PHASE
ATTORNEY, TESTIFIED THAT HE
PERSONALLY REJECTED A
VOLUNTARY INSTOCKS DEFENSE.
THAT IS ONE OF THE REASONS
HE DID NOT LOOK INTO, INTO
THE, THIS DEFENSE.
HE ALSO TESTIFIED --
>> YOU SAID HE PERSONALLY
YOU MEAN, GRIMM OR, THE
COUNSEL?
>> NO.
THE TRIAL COUNSEL.
TRIAL COUNSEL.
>> WASN'T IT GRIMM
INSTRUCTED HE DIDN'T WANT A
INVOLUNTARY INTOXICATION
DEFENSE.
>> I THINK THAT'S TRUE,
JUSTICE CANTERO.
HE TESTIFIED MR. GRIMM IN
CONTEXT OF GENERAL VOLUNTARY
INTOX, IF YOU READ THE
TESTIMONY HE SAID I WAS
DRINKING TOO MUCH.
THE ARGUMENT I THINK RECORD
IS CLEAR THIS DEFENSE WAS
PROPOSED WAS MUCH MORE
COMPLEX, MOVE MORE
COMPLICATED THAN SIMPLY I
WAS DRYING TOO MUCH BEER
THAT NIGHT AND, HE DID NOT
WANT TO, USE VOLUNTARY INK
TOX FOR THOSE PURPOSES.
>> DR. LARSEN TESTIFIED THAT
THE AL -- APPELLANT WAS
ADAMANT WAS ONLY INTERESTED
IN EXONERATION.
DID NOT WANT ANY OF THAT
EVIDENCE TO BE USED.
>> I THINK DR. LARSEN DID
TESTIFY TO THAT.
THAT, MY ARGUMENT IS HIS
STATEMENT WAS NOT BASED ON,
IT WAS MADE WITHOUT BEING
AWARE OF THE DEFENSE THAT
COULD HAVE BEEN PRESENTED,
THE, DRUG USE, AND, THE
UNDERLYING DISORDER OF
INTERMITTENT EXPLOSIVE
DISORDER.
THE --
>> WHAT, IN TERMS OF THE
CASE LAW, BECAUSE, WE
PROTECT THROUGH A SERIES OF
CASES, THE FACT THAT, WHEN
SOMETHING LIKE THIS IS GOING
TO HAPPEN, WHICH IS, NO
PRESENTATION OF MITIGATION,
THAT THERE IS UNDER KUHN, A
PROFFER, ALL OF THE THINGS
THAT PROTECT THE INTEGRITY
OF THE TRIAL.
IN THIS CASE NOT ONLY WERE
THEY DONE BUT TO ME THEY
WERE DONE EVEN, I MEAN
SUBSTANTIALLY BETTER BY BOTH
COUNSEL, COUNSEL DIDN'T GIVE
UP.
THEY KEPT ON, YOU KNOW, THEY
HAD DR. LARSEN, AND THEN YOU
HAVE THE TRIAL COURT LOOKING
AT IT.
IT SEEMS THAT TO ME THAT, IF
WE WERE TO EVEN REMOTELY
FIND THERE TO BE INEFFECTIVE
ASSISTANCE, WE WOULD JUST BE
UNDERMINING EVERYTHING WE
HAVE DONE, IN THE CASES,
LIKE KUHN LIKE MUHAMMAD WHEN
SOMETHING LIKE THIS COMES
UP.
I DON'T SEE HOW YOU CAN SAY
THEY SHOULD HAVE JUST DONE
THAT ONE THING.
MAYBE THAT MIGHT BE TRUE IF
HE HAD NOT INSTRUCTED THEM
NOT TO DO ANYTHING BUT I
THINK WE WOULD BE CHANGING
OUR LAW SUBSTANTIALLY.
WE ALMOST HAVE TO SAY THERE
WAS ERROR AT THE TRIAL COURT
LEVEL IN WHAT HAPPENED IN
THE ORIGINAL TRIAL.
>> YES.
I DON'T, I AGREE THERE WAS A,
A SERIOUS EFFORT BY THE
TRIAL COURT TO PROTECT THE
RECORD IN TERMS OF THE
WAIVER AND, IT'S NOT, I CAN
SEE THAT THIS ISN'T A CASE
WHERE, I CITED TO THE LEWIS
CASE.
I BELIEVE THIS CASE, ISN'T,
A ANALOGOUS TO LEWIS BUT
IT'S NOT A CASE LIKE LEWIS
WHERE THEY DID NOTHING AT
ALL.
I'M NOT SAYING THAT THEY
DIDN'T, WHAT I'M SAYING,
THAT, BASED ON THE, TWO MOST
RECENT OPINIONS FROM THE
UNITED STATES SUPREME COURT,
PILLA AND WIGGINS THERE IS
DUTY TO CONTINUE TO
INVESTIGATE EVEN, I THINK
KOON --
>> THIS ISN'T A CASE WHERE
THEY DIDN'T GET ANY EXPERTS.
YOU'RE TALKING ABOUT A CASE
WHERE THEY DID NOT EVEN TALK
TO EXPERTS.
HERE, THE, COUNSEL GOT
EXPERTS.
EXPERT DR. LARSEN EVEN SPOKE
WITH THE DEFENDANT.
NOT A ISSUE THAT THEY FAILED
TO INVESTIGATE.
THEY HAD THE INFORMATION.
DEFENDANT SAID WE DON'T WANT
YOU TO USE THAT.
>> THAT'S NOT TRUE.
THE THAT IS PARTIALLY TRUE.
YES THEY DID HIRE AN EXPERT.
AND I CAN SEE THAT.
THEY DID HIRE AN EXPERT.
WHAT HAPPENED WAS THEY, THAT
EXPERT MADE A SPECIFIC
RECOMMENDATION TO THEM ABOUT
CONSULTING WITH A DRUG
EXPERT BECAUSE HE DIDN'T
HAVE THE QUALIFICATIONS TO,
TELL THEM WHAT'S GOING ON
WITH THIS.
AND, HAD THEY -- THIS JUST
ISN'T SORT OF, THEY, JUST A
GENERAL SENSE OF, YOU KNOW,
CAN BE ANYTHING OUT THERE,
AND THEY DIDN'T FIND IT.
IT WAS A SPECIFIC
RECOMMENDATION TO, AND THEY
HAD ALREADY, I WOULD POINT
OUT THEY HAD ALSO USED THAT
TYPE OF EXPERT IN THE PAST.
SO THEY WERE AWARE THAT THAT
TYPE OF EVIDENCE COULD BE
USED.
>> WHICH MAKES IT EVEN MORE
REASONABLE THAT THEY DIDN'T
KEEP ON KNOCKING THEIR HEADS
AGAINST THE WALL AND DOING
THINGS THAT WEREN'T GOING TO
MAKE NO DIFFERENCE BECAUSE
DON'T YOU HAVE TO SHOW THIS
DEFENDANT, IF HE HAD, OH YOU
MEAN I COULD HAVE PRESENTED
A DRUG DEFENSE, WOULD HAVE
SAID OKAY, EVERYTHING I'VE
BEEN TELLING YOU FOR THE
LAST MONTHS IS OUT THE
WINDOW.
IN OTHER WORDS, WHAT IS YOUR
STANDARD OF PREJUDICE?
LET'S JUST ASSUME THEY
SHOULD HAVE, DONE ONE MORE
THING, THAT IS, GONE GOT A
DRUG EXPERT.
DON'T YOU HAVE TO SHOW THAT,
THAT THERE WOULD HAVE BEEN A
THAT THIS DEFENDANT WOULD
HAVE SOMEHOW CHANGED HIS
MIND ABOUT WAIVING
MITIGATION?
>> I THINK WE HAVE TO
DEMONSTRATE THAT THE TRIAL
ATTORNEYS WERE, THAT THEY
WERE UNREASONABLY, THAT THEY
UNREASONABLY ABANDONED THE
INVESTIGATION AT THAT POINT.
>> OKAY.
LET'S JUST SAY THAT IS TRUE
ON DEFICIENCY.
LET'S SAY THEY UNREASONABLY
ABANDONED THE INVESTIGATION.
WHAT DO YOU HAVE TO SHOW AS
FAR AS PREJUDICE IN THE
RECORD?
>> I THINK YOU HAVE TO LOOK
AT THE EVIDENCE THAT WAS
PRESENTED AT TRIAL, EXCUSE
ME AT THE EVIDENTIARY
HEARING.
YOU HAVE TO LOOK AT THAT
EVIDENCE AND HOW IT WOULD
HAVE AFFECTED -- I THINK
WHAT --
>> I DON'T THINK THAT IS
CORRECT.
I THINK YOU HAVE TO LOOK AND
ESTABLISH SOMEHOW, JUST LIKE
THE, HILL VERSUS LOCKHART,
THAT SOMEBODY WHO HAS WAIVED
MITIGATION, NOW, IF I HAD
KNOWN THAT, I WOULD HAVE HAD
ALL THIS MITIGATION
PRESENTED AND THEN, IT WOULD
HAVE MADE A DIFFERENCE IN
THE RESULT.
AND I DON'T THINK YOU'VE GOT
THAT.
>> WELL, FIRST OF ALL, WITH
ALL DUE RESPECT, I DON'T
THINK THAT'S THE STATE OF
THE LAW THAT I HAVE TO,
DEMONSTRATE, I HAVE TO PUT
MY CLIENT ON THE STAND TO
SAY, YEAH IF I HAD THAT THEN
I WOULD I WOULDN'T HAVE
WAIVED.
HE --
>> BUT YOU HAVE A SITUATION
WHERE THE JURY DOESN'T HEAR
MITIGATION, RIGHT?
>> CORRECT.
>> OKAY.
SO NOW YOU'RE SAYING, THAT,
THE JURY STILL WOULDN'T HAVE
HEARD MITIGATION.
JUST OUT THERE, THE TRIAL
COURT WOULD HAVE HAD ONE
MORE THING UNDER KUHN THAT
WOULD HAVE BEEN OFFERED.
SEEMS YOU'VE GOT TO TIE IT
TOGETHER TO WHAT ACTUALLY
HAPPENED IN THIS PROCEEDING
FOR IT TO REACH THE LEVEL
THAT IT UNDERMINES
CONFIDENCE IN THE OUTCOME IF
WE'VE ACCEPTED THE FACT THAT
PEOPLE CAN WAIVE MITIGATION.
WHICH WE HAVE ACCEPTED.
SO THAT'S WHERE I'M HAVING
TROUBLE.
>> I WOULD JUST, I THINK I,
I THINK I SORT OF UNDERSTAND
THE POINT YOU'RE GETTING TO.
THAT WE HAVE SOME SORT OF
BURDEN TO PROVE MR. GRIMM
WOULD NOT HAVE WAIVED.
I DON'T THINK THAT'S THE
STATE OF THE LAW, THAT WE
HAVE TO PROVE SOMEHOW HE
WOULD NOT HAVE WAIVED.
WHAT I CAN POINT TO, THE
FACT THAT MR. GRIMM DID SEE
DRS. LARSEN.
HE DIDN'T REFUSE TO SEE HIM.
HE SAW DR. LARSEN AND
DR. LARSEN TESTIFIED
MR. GRIMM WAS OPEN WITH HIM.
HE WASN'T HAPPY ABOUT IT
NECESSARILY.
BUT HE WAS OPEN WITH HIM
ABOUT EVERYTHING.
AND HE, TALKED TO HYMN.
AND ALSO IN POST-CONVICTION
HE ALSO SAW DR. LIPMAN.
>> BUT HE STILL DIDN'T WANT
ANY OF THAT PUT ON IN THE
PENALTY PHASE.
>> I DON'T THINK THAT HAS
THAT'S WHAT YOU'RE ASKING ME
IF, A BURDEN UPON ME TO PUT
MY CLIENT ON THE STAND TO
TESTIFY.
>> I'M JUST SAYING HOW DO
YOU FIND AN UNDERMINING
CONFIDENCE IN THE OUTCOME IF
THE OUTCOME, ANYWAY, IS,
THAT MITIGATION WASN'T GOING
TO BE PRESENTED TO THE JURY?
AS LONG AS THAT IS ALLOWED
THAT'S PER MISSABLE WE ALLOW
DEFENDANTS, TO WAIVE
MITIGATION, SEEMS THAT
YOU'VE GOT TO SHOW SOMETHING
MORE THAN, THAN, JUST THAT
THERE WAS SOMETHING ELSE OUT
THERE TO BE PROFFERED TO THE
TRIAL JUDGE.
>> WELL I THINK, I THINK
WE'VE MET THE BURDEN OF
PROOF BY PRESENTING THE
EVIDENCE IN POST-CONVICTION.
I THINK WE'VE, OUR ARGUMENT
IS THAT THAT EVIDENCE WOULD
HAVE BEEN PRESENTED IN
MITIGATION AND THAT MR. GRIM
WOULD NOT HAVE WAIVED HAD
THEY INVESTIGATED THAT
EVIDENCE WHICH THEY WERE
SPECIFICALLY ON ALERT TO.
>> SO YOU'RE SAYING THAT
THAT EVIDENCE WOULD HAVE
BEEN AVAILABLE TO PRESENT TO,
AT THE SENTENCING AT THE
SPENCER HEARING OR JUST TO
THE JUDGE?
>> NO, MA'AM.
MY ARGUMENT IS WOULD HAVE
BEEN AVAILABLE TO PRESENT TO
THE JURY, TO THE JUDGE AT
THE SPENCER HEARING, BOTH.
THERE WAS NOT HAVE BEEN A
WAIVER.
>> SAYING HE DID NOT WANT TO
PUT ON MITIGATION?
>> RIGHT.
I THINK THERE ARE OTHER
CASES, LEWIS CASE WE'VE
TALKED ABOUT, THE BLANCO
FROM THE 11th CIRCUIT AND
THE WIGGINS CASE ALTHOUGH
THE WIGGINS CASE IS NOT A
WAIVER CASE.
IT'S PROBABLY NOT -- IN
THOSE CASES YOU'VE HAD A
CASE WHERE THE DEFENDANT
SAID I WANT TO WAIVE.
I DON'T WANT TO PRESENT ANY
MITIGATION.
BUT, YOU GO TO THE
POST-CONVICTION PROCEEDING
AS WE DID HEAR THERE WAS
CERTAIN EVIDENCE THAT WAS,
THE TRIAL ATTORNEYS WERE
AWARE OF, AND THAT THEY
FAILED TO TAKE THAT EXTRA
STEP AND INVESTIGATE.
AND, MY ARGUMENT IS IF THEY
HAVE DONE THAT, MR. GRIM
WOULD NOT HAVE WAIVED THE
MITIGATION.
>> DON'T YOU ALWAYS HAVE TO
SHOW THAT, NOT ONLY WOULDN'T
HE WAIVE MITIGATION BUT THAT
THEN THE MITIGATION THAT
WOULD BE PRESENTED WOULD
HAVE BEEN PRESENTED WITHOUT
WEIGHING THE AGGRAVATING
CIRCUMSTANCES?
>> SURE.
>> OR AT LEAST OUR
CONFIDENCE IN THE OUTCOME IS
UNDERMINED TO THAT EXTENT?
>> YES, YOUR HONOR.
THAT IS ABSOLUTELY RIGHT.
>> HOW IS THIS NEW
MITIGATION BE SO
OVERWHELMING AS TO, OUTWEIGH
THE AGGRAVATETORES?
>> SURE.
I THINK IF YOU LOOK AT JUDGE
BELL'S SENTENCING ORDER HE
FOUND THE DRUG USE, THE USE
OF DRUGS WAS NOT
ESTABLISHED.
HE FOUND, HE DID NOT FIND
ANY STATUTORY MITIGATORS.
DR. LIPMAN AND DR. LARSEN,
IF YOU LOOK AT THEIR
TESTIMONY, DR. LIPMAN
TESTIFIED THAT MR. GRIMM HAD
UNDERLYING MENTAL DISEASE.
HE WAS USING PROZAC AND
DEPAKOTE.
AFFECTING HIS BEHAVIOR.
TWO TO FOUR TIMES LEGAL
LIMIT IN TERMS OF
BLOOD-ALCOHOL CONTENT.
HE TESTIFIED IN HIS OPINION
THERE WAS NO INTENT --
>> WASN'T HIS DEFENSE AT
TRIAL HE DIDN'T COMMIT THE
CRIME?
>> YES.
ESSENTIALLY IT WAS --
>> HOW WOULD THE FACT THAT
HE WAS, TAKING PROZAC AND
ALL THESE THINGS, HOW IS
THAT CONSISTENT WITH A
DEFENSE, I DIDN'T COMMIT THE
CRIME?
>> IT'S NOT, YOUR HONOR.
IT'S NOT.
MY ARGUMENT IS THAT,
MR. GRIM WOULD HAVE ENT
PRESENTED A DIFFERENT
DEFENSE.
HE WOULD HAVE PRESENTED
DEFENSE BASED ON INTERACTION
OF THE DRUGS AND UNDERLYING
MENTAL DEFECT AND ALCOHOL.
WE HAVE PRESENTED THAT
DEFENSE RATHER THAN THE
DEFENSE -- WHICH THE --
>> EXCUSE ME.
NOW WE'RE GETTING ON GUILT
PHASE.
ON THE GUILT PHASE I THOUGHT
THAT THE EVIDENCE WAS PRETTY
WELL UNCON VERY VERTED THAT
HE -- UNCONTROVERTED THE
NOTION OF QUOTE, DIMINISHED
CAPACITY DEFENSE, BECAUSE HE,
CONTINUED TO INSIST THAT HE
WAS NOT GUILTY.
NOW, UNLESS YOU SAY, WELL,
THE SOMEHOW, LAWYERS WERE
DEFICIENT NOT CONVINCING HIM
OTHERWISE I THINK ALL OF
THIS IS ACADEMIC.
>> I DON'T AGREE, YOUR
HONOR.
RESPECTFULLY.
AGAIN, MY ARGUMENT IS
ALTHOUGH THERE WERE SOME
STATEMENTS BY MR. GRIMM
APPARENTLY HE DIDN'T WANT,
AGAIN I THINK I MENTIONED
THIS TO JUSTICE CANTERO
EARLIER.
THIS WAS IN CONTEXT OF A
DISCUSSION BETWEEN MR. HILL
AND MR. GRIM ABOUT VOLUNTARY
INTOX DEFENSE WHICH WAS NOT
EXACTLY PRESENTED IN THE
POST-CONVICTION HEARING.
THEY DID, THEY DID, THE,
ATTORNEYS DID NOT
INVESTIGATE THIS DEFENSE AND
THEY DID NOT DISCUSS IT WITH
MR. GRIM.
HE HAD NO BASIS UPON WHICH
TO SAY, I DON'T WANT TO DO
THAT.
THIS IS A SPECIFIC DEFENSE
THEY SHOULD HAVE
INVESTIGATED AND, THEY DID
NOT.
AND, MY ARGUMENT IS IF THEY
HAVE DONE THAT THEY WOULD
HAVE, THAT DEFENSE COULD
HAVE BEEN PRESENTED AT
TRIAL.
IN ADDITION TO BEING
PRESENTED AS A GUILT PHASE,
IT ALSO CONTAINED
SUBSTANTIAL AMOUNT OF
MITIGATION.
>> YOU'RE WELL INTO
REBUTTAL.
USE YOUR TIME AS YOU WISH.
BUT YOU'RE WELL INTO
REBUTTAL.
>> I ALSO, JUST WANT TO
POINT THE COURT TO THE BRADY
VIOLATION WITH REGARDS
MEDICAL EXAMINER IN THIS
CASE.
I WOULD JUST INVITE THE
COURT TO TAKE A LOOK AT
THAT.
>> YOU'RE OPENING A WHOLE
NEW CAN OF WORMS.
IF YOU'RE GOING TO ARGUE
THAT I HAVE SOME QUESTIONS
ON THAT.
>> I WILL CERTAINLY TAKE A
QUESTION, SURE.
>> THE COUNSEL KNEW ABOUT
THE, MEDICAL EXAMINER'S
LOSING HIS LICENSE IN
MISSOURI, CORRECT?
>> THERE IS DISCREPANCY
ABOUT THAT.
I DON'T KNOW THAT HE, I
DON'T THINK THE RECORD IS
CLEAR HE WAS AWARE OF IT
BECAUSE HE TESTIFIED --
>> FORMER COUNSEL DEPOSED
THE MEDICAL EXAMINER, THE
PRIOR DEFENSE COUNSEL.
>> THE PUBLIC DEFENDER.
IT IS NOT CLEAR MR. HILL WAS
EVER AWAR OF THOSE RECORDS.
HE DEAD ON DIRECT
EXAMINATION HE WAS NOT AWARE
OF THAT UNTIL AFTER TRIAL
AND HE CERTAINLY WOULD HAVE
USED HIT IT BEEN AVAILABLE.
>> HOW IS THAT THE THE
STATE'S FAULT THAT THE
DEFENSE COUNSEL DIDN'T
OBTAIN THE PRIOR DEPOSITION?
>> AGAIN, I WOULD ALSO SAY
THAT, IF, THE COURT WAS, TO,
TAKE THAT STEP AND TO SAY HE
SHOULD HAVE, SHOULD HAVE
SOMEHOW BEEN AWARE OF THE
DEPOSITION, I WOULD ALSO
POINT OUT THE --
>> SOMEHOW.
ON COUNSEL INHERITS A CASE,
ISN'T THAT COUNSEL ONE OF
THE DUTIES OF THAT COUNSEL
IS TO READ THE DEPOSITIONS?
>> SURE.
>> NOT SHOULD HAVE SOMEHOW,
YOU'RE RESPONSIBLE FOR
GETTING COPIES OF THE
DEPOSITIONS.
>> AGREE YOUR HONOR, I AGREE
WITH THAT.
I THINK WHAT YOU'RE GETTING
TO, I WOULD, POINT OUT TO
THE COURT THIS CLAIM WAS
ARGUED ALTERNATIVELY AS
INEFFECTIVE ASSISTANCE OF
COUNSEL CLAIM.
IF THIS COURT WERE TO FIND
THAT MR. HILL SHOULD HAVE
BEEN AWARE OF THE DEPOSITION
THEN HE WAS INEFFECTIVE,
BECAUSE HE TESTIFIED AT
HEARING HE WAS, THAT HE
CERTAINLY WOULD HAVE USED
HIT HE BEN AWARE OF IT.
I ALSO WANT TO MAKE THE
POINT THAT THE DEPOSITION IS
DIFFERENT THAN THE DOCUMENTS
THAT WERE PRESENTED AS AN
EXHIBIT IN THIS CASE.
THE DOCUMENTS ARE CLEARLY
MORE POWER -- THE DEPOSITION
IS COMPLETELY --
>> DOCUMENTS WERE ALL PUBLIC
RECORDS IN MISSOURI, WEREN'T
THEY?
>> THEY WERE PUBLIC RECORDS,
YES.
>> SO IF YOU KNEW OF THE
DEPOSITION, DEFENSE COUNSEL
CERTAINLY COULD HAVE
OBTAINED THOSE PUBLIC
RECORDS HIMSELF?
>> I THINK THERE'S A
REASONABLE ARGUMENT THAT HE
COULD HAVE OBTAINED THOSE
RECORDS, YES, YOUR HONOR.
I WILL SAVE WHAT TIME I HAVE
LEFT FOR REBUTTAL.
>> ALL RIGHT.,,
>> MAY IT PLEASE THE COURT,
RONALD WLATH THAT MANY FOR
THE STATE OF FLORIDA.
COUPLE THINGS AT THE OUTSET.
I WANT TO TALK A LITTLE BIT
WHAT TOOK PLACE DURING THE
ACTUAL TRIAL.
MR. GRIM WAS, ASKED, SEVERAL
TIMES BY, THEN JUDGE BELL,
JUSTICE BELL, REGARDING, ARE
YOU SURE THIS IS HOW YOU
WANT TO PROCEED?
MR. 6 GRIM WAS BE WHO HAD
BEEN CONVICTED IN EXCUSE ME,
192 AND AGAIN IN 1990 IN
TEXAS.
FIRST CONVICTION WAS IN
FLORIDA.
HE HAD EXPRESSED TO,
EVERYBODY, HE EXPRESSED ON
THE RECORD HIS CONCERN WAS
THAT HE DIDN'T WANT TO SPEND
THE REST OF HIS LIFE IN
PRISON.
HAVING EXPERIENCED, HAVING
EXPERIENCED WHATEVER HE GONE
THROUGH WITH HIS EIGHT YEAR
INCARCERATION FOR HIS EIGHT
AT THIS CRIME SPREE OR TWO
YEARS OF INCARCERATION IN
TEXAS.
HE SPECIFICALLY SAID I DO
NOT WANT TO SPEND THE REST
OF MY LIFE IN PRISON.
THE TRIAL COURT ASKED
SEVERAL TIMES ARE YOU SURE
THIS IS HOW YOU WANT TO
PROCEED?
THERE IS EVEN ONE EXCHANGE
WHERE MR. GRIM SAYS, NOW I
KNOW THE TRIAL COURT HAS
SOME CONCERNS.
I'M NOT, IT'S NOT A
SITUATION WHERE I'M TRYING
TO COMMIT SUICIDE OR
SOMETHING LIKE THAT.
THESE WERE HIS WORDS I'M NOT
TRYING TO COMMIT SUICIDE.
I KNOW HOW I WANT TO PROCEED
AND HOW I WANT TO PROCEED IS
SIMPLY THAT, IT'S EITHER,
BEING FOUND NOT GUILTY IF I
AM FOUND GUILTY, TO, SUBMIT
TO, BEING SENTENCED TO
DEATH.
SO, THIS WAS A DECISION BY
SOMEBODY WHO HAD A 109 IQ.
THIS WAS NOT SOMEBODY WHO
FOUND TO BE SOMEHOW MENTALLY
INFIRMED.
THIS IS SOMEBODY VERY
EXPERIENCED IN CRIMINAL
JUSTICE SYSTEM AND
UNDERSTOOD THE LAY OF THE
LAND AS IT WERE RELATING TO
WHAT HE FACED BY PROCEEDING,
BY PROCEEDING TO TRIAL.
MOREOVER, DURING THE ACTUAL
TRIAL WHAT WAS ARGUED AND,
MAINLY WAS ARGUED DURING THE
CLOSING ARGUMENT WAS, AGAIN,
THIS WAS, THIS WAS A CRIME
THAT MR. GRIM WAS NOT
STOPSABLE FOR.
THE ARGUMENTS WERE MADE THAT
COUNSEL CONSTANTLY
REITERATED TO THE JURY
PLEASE USE YOUR COMMON SENSE,
PLEASE USE YOUR COMMON
SENSE.
REMEMBER, MR. GRIM WAS NOT
SOME DISCUSSION WAS
MR. GRIM'S ACTIVITIES AND
BEHAVIORS WITH PRIFRS ON
JULY 27th, 1998 WHEN THEY
CAME TO HIS HOME AND, THEY
WERE QUESTIONS, APPARENTLY
MR. GRIM WAS ACTING BIZARRE.
HE EVENTUALLY BE A SKONDS TO
OKLAHOMA.
WHAT WAS ARGUED AT TRIAL AND
CLOSING ARGUMENT THERE MAY
BE OTHER PEOPLE MIGHT HAVE
BEEN INVOLVED IN THIS CRIME.
THERE MAY HAVE BEEN OTHER
CIRCUMSTANCES.
WE HAVE TO CALL IN QUESTION
THE POLICE'S CONDUCT AND WE
HAVE TO CALL INTO QUESTION
SOME OF THE EVIDENCE THAT
WAS ACTUALLY RECOVERED AT,
DURING THE CRIME SCENE.
SO LOT OF THESE ARGUMENTS
WERE MADE WAS, MR. GRIM WAS
NOT ACTUALLY RESPONSIBLE FOR
THE CRIME.
SO, A LOT OF THESE ISSUES
RELATED TO MEANT A TALL
MITIGATION AND DIMINISHED
CAPACITY I MAY HAVE BEEN
USING DEPAKOTE AND, VARIOUS
OTHER PSYCHOTROPIC DRUGS
THESE MIGHT HAVE GONE TO
PERHAPS REDUCING HIS,
REDUCING WHAT HIS SENTENCE
TO MAYBE SECOND-DEGREE
MURDER, SOME LESSER GRIME
BUT IT WASN'T, THIS WAS
CERTAINLY, THIS IS NOT HOW
HE WANTED TO PROCEED.
MR. GRIM IS ASKED THROUGHOUT
THE PROCEEDINGS HE IS ASKED,
DURING THE KUHN HEARING,
DURING THE PENALTY PHASE,
THROUGHOUT THE PROCEEDINGS
HE IS ALWAYS CONSTANTLY
ASKED OUT ARE YOU SURE THIS
IS HOW YOU WANT TO PROCEED.
IT IS PLACED ON THE RECORD
BY HIS COUNSEL.
THIS IS CERTAINLY AN
INSTANCE IF ANYBODY WHO
UNDERSTOOD WHAT HE FACED,
THIS WAS CERTAINLY AN
INDIVIDUAL WHO DID
UNDERSTAND WHAT, WHAT WERE
THE POTENTIAL PITFALLS OF
DEFENSE WHERE, IT'S EITHER I
DID IT, EXCUSE ME I DIDN'T
DOT CRIME, IF YOU DO FIND ME
GUILTY I'M GOING TO SUBMIT
TO THE DEATH PENALTY AS
OPPOSED TO A LIFE SENTENCE.
I DIDN'T KNOW, JUSTICE
CANTERO I KNOW YOU MADE
REFERENCE TO THE ISSUE,
EXCUSE ME, MR. HAZEN AS WELL
MADE REFERENCE TO THE BRADY
ISSUE.
STATE WILL SUBMIT THERE IS
NO BRADY ISSUE HERE.
FIRST THING WE HAVE TO
UNDERSTAND IS THAT IN THIS
RECORD IS CLEAR, HIS, PUBLIC
DEFENDER ACTUALLY BROACHED
THIS QUESTION WITH MR. ,
DR. BURDLAND.
DR. BURKLAND WAS CERTAINLY
FORTH COMING I NO LONGER
HAVE MYNESS LICENSE.
THIS MATTER IS CURRENTLY
UNDER APPEAL.
>> BUT WOULD YOU HAVE TO
ADMIT, 23 PAGES OR SO OF
DOCUMENTS THAT CAME IN ABOUT
THE REF CROWCATION OF HIS --
REVOCATION OF HIS LICENSE,
MUCH MORE DAMAGING THAN THE
DOCTOR IN HIS DEPOSITION
TRIES TO DANCE AROUND IT
MAKE IT SOME DISPUTE BETWEEN
HIM AND ONE OF THE, I GUESS
THE HEAD MEDICAL EXAMINER.
>> YES.
AS THESE DOCUMENTS SAY THIS
MAN FABRICATED INFORMATION
ABOUT AN AUTOPSY.
IT SEEMS TO ME, REALLY
DIFFERENT INFORMATION FROM
WHAT WAS, CAME OUT OF THE
DEPOSITION.
>> I RESPECTFULLY DISAGREE,
YOUR HONOR.
FOR A FEW, FOR A FEW
REASONS.
FIRST, THIS COURT HAS MADE
REFERENCE IN VARIOUS
JURISPRUDENCE IN THE 11th
CIRCUIT AS WELL THIS, THE
INFORMATION THAT WAS, THERE
WAS, SUBSTANTIAL EVIDENCE
WITHIN THE RECORD WHERE INN
IF MR. GRIM'S COUNSEL, THERE
WAS ENOUGH INFORMATION IN
THE RECORD THAT MR. GRIM'S
COUNSEL COULD HAVE PURSUED
THIS FURTHER.
AGAIN THERE IS, THE RECORD
IS, CLEAR.
THEY, ANT TOE NET STIT WAS
AWARE OF THIS.
SHE PROPOUNDED THE QUESTION,
TO, MR. , DR. BURKLAND.
IT WAS INCUMBENT UPON THE
DEFENSE.
MAYBE THEY SHOULD HAVE
COORDINATED WITH ONE ANOTHER
AND PERHAPS STIT SHOULD HAVE
TALKED TO HILL AND ROLO
ABOUT THESE ISSUES DOCTOR
HAD BUT IT WAS CONCERNLY IN
THE RECORD.
THE DEFENSE WAS COGNIZANT
THERE WAS SOME TYPE OF ISSUE
WITH DR. BURKE.
>> YOU SAY YOU DISAGREE WITH
JUSTICE QUINCE'S PARAFLAZ OF
THE EVIDENCE.
DOES THAT MEAN YOU DISAGREE
FACTUALLY THE RECORD DID NOT
SHOW MUCH MORE ALLEGATIONS
OF MISCONDUCT THAN, JUST THE
MERE RECORD OF HIM, LOSING
HIS LICENSE?
>> TO BE FAIR --.
>> YOU DISAGREE ON THE FACT?
>> TO BE FAIR,
JUSTICE ANSTEAD --
>> WHAT DID THE RECORD SHOW?
HOW WOULD YOU CHARACTERIZE
THE RECORDS AS TO THE SAY
THE MOST SEVERE MISCONDUCT
OF THE DOCTOR?
IN THE RECORDS?
>> OKAY.
THE RECORD, WHAT DOCTOR
BURKELAND SUGGESTED THAT, I
APOLOGIZE FOR NOT BEING
ENTIRELY CONVERSANT WITH THE
MEDICAL NOMENCLATURE HE DOES
SAY TO THE EXTENT THERE WERE
SEVEN TEACHING BRAINS WHICH
HE MADE A MISTAKE IN TERMS
OF, AUTOPSY, AUTOPSY.
AUTOPSY PROCEDURES HE WAS
RESPONSIBLE FOR AS MEDICAL
EXAMINER IN MISSOURI.
I WITH DO HAVE IN THIS
RECORD, SOME EVIDENCE THIS
WAS AN INDIVIDUAL WHO HAD
APPARENTLY MADE MULTIPLE
ERRORS IN TERMS OF --
>> I THOUGHT THE RECORDS
REALLY CHARACTERIZED HIS
CONDUCT AS, JUST ATROCIOUS.
THAT IS THAT HE FABRICATED
FINDINGS AND, VERY EXTENSIVE
ALLEGATIONS.
>> ARE YOU TALK ABOUT THE
FACTS --
>> TALKING ABOUT THE RECORDS
OF --
>> CAME IN -- TALKING ABOUT.
>> RECORDS THAT CAME IN
DURING THE POST-CONVICTION
HEARING.
>> OKAY.
>> THE STATE HAD.
NOW, I MEAN THOSE, AND, WHAT
WE'RE, APPARENTLY FACED WITH,
AND, HAS NOTHING TO DO WITH
REFUTING YOUR ARGUMENT ABOUT
WHAT THE DEFENSE SHOULD HAVE
DONE, ONCE THEY KNEW HE LOST
HIS LICENSE, WHATEVER, THAT
IS A SEPARATE ARGUMENT.
BUT ARE YOU SAYING YOU DON'T
AGREE THAT THE RECORD SHOW
MUCH MORE MISCONDUCT ON THE
DOCTOR'S PART THAN THE MERE
LOSING OF HIS LICENSE?
>> WELL --
>> DO YOU DISAGREE FACTUALLY
THAT'S WHAT THEY SHOW OR YOU
DON'T AGREE?
>> I'M GOING TO ANSWER AS TO
WHAT WE DO HAVE IN THIS
RECORD, DR. BURKELAND'S OWN
WORDS.
DOCTOR DOES ACKNOWLEDGE
MISTAKES WERE MADE.
DR. BURKELAND.
ACKNOWLEDGED --.
>> FEEL LIKE YOU'RE SORT OF
DANCING AROUND THIS.
WE HAVE A DEPOSITION WHERE
HE CONCEDES THAT HE LOST HIS
LICENSE AND HE CHARACTERIZES
IT AS A DISAGREEMENT WITH
WHOEVER WAS IN CHARGE OF THE
MEDICAL EXAMINERS IN THE
STATE.
AND WE HAVE RECORDS, THAT
SHOW IN MUCH MORE DETAIL,
ALL RIGHT?
WOULD YOU AGREE WITH THAT?
>> THERE IS, MORE DETAIL,
JUSTICE ANSTEAD I DON'T WANT
US TO LOSE SIGHT OF WHAT
DR. BURKELAND ACTUALLY
TESTIFIED TO AND WHAT TOOK
PLACE AS MOST IMPORTANT AS
IT RELATES TO THE TRIAL?
>> I THINK YOU BETTER ANSWER
JUSTICE ANSTEAD'S QUESTION.
HE WILL NOT LET YOU GET AWAY
FROM THAT.
>> CERTAINLY, CERTAINLY I
APOLOGIZE.
IF THE ANSWER IS YES THERE
IS MORE DETAIL THAN THE
RELATIVELY SHORT, SHORT
DEPOSITION ANSWERS, THE WE
HAVE ABOUT THREE OR FOUR
PAGES OF DEPOSITION,
TESTIMONY FROM DR. BURKELAND
WHERE HE DOES ACKNOWLEDGE,
THERE ARE MIGHT BE MORE
SUBSTANTIVE --
>> IN YOUR VIEW IN THE
STATE'S VIEW THERE REALLY IS
NO MEANINGFUL DISTINCTION
BETWEEN THE RECORD AND THE
DEPOSITION?
IS THAT THE YOUR OPINION?
>> THERE IS MORE, PERHAPS
THERE IS MORE DEPTH TO THE,
ALLEGATIONS AGAINST
DR. BURKELAND THAN.
>> NOT MEANINGFUL?
>> I THINK BOTH CONCEDE
THERE IS A ISSUE, INDIVIDUAL
LOST HIS LICENSE.
AND, BECAUSE OF MEDICAL,
APPARENT SOME MALFEASANCE,
SIR, PROBLEMS WITH HIS
PERFORMANCE OF HIS DUTIES IN
THE STATE OF MISSOURI.
BUT I DON'T THINK EITHER
ONE --
>> LET'S JUST, IT WOULD BE
SO EASY FOR YOU TO SAY YOU
KNOW WHAT, THAT IS A VERY
SIGNIFICANT DIFFERENCE.
IT'S DEVASTATING.
THIS IS MY CONCERN AND IT'S,
TO HELP YOU OUT, BECAUSE, I
DON'T UNDERSTAND HOW THE
TRIAL COUNSEL DIDN'T EVEN
IMPEACH DR. BURKELAND AT
TRIAL WITH EVIDENCE OF
REVOCATION OF HIS MISSOURI
LICENSE WHICH HE KNEW ABOUT.
SO LET'S ASSUME BOTH IT'S
BRADY AND OR, ALTERNATIVELY
IT'S DEFICIENT PERFORMANCE.
ADDRESS THE PREJUDICE PRONG
BECAUSE I THINK THAT'S
PROBABLY YOUR BEST ARGUMENT
HERE THAT, YOU KNOW THERE'S
NOTHING THAT HAS ATTACKED
FINDINGS.
>> EXACTLY.
>> OKAY.
BUT IT'S ALWAYS A GOOD THING,
I REALIZE, THERE'S REALLY NO
BENEFIT TO BE SAYING IT'S
THE SAME THING BECAUSE IT'S
REALLY SOME PRETTY
DEVASTATING STUFF.
>> APOLOGIES IF I, GAVE THE
IMPRESSION THAT THEY WERE
BUT, THERE ARE MORE DEPTH,
PERHAPS THERE IS MORE DEPTH
TO THE NEWSPAPER ARTICLES
AND WHAT HAVE YOU, BUT THEY,
GETTING TO THE PREJUDICE
PRONG, EXCUSE ME TO
PREJUDICE --
>> IT'S THE SAME UNDER BRADY
AND STRICKLAND RIGHT?
WE'VE SAID EITHER WAY IT'S
SORT OF UNDERMINING
CONFIDENCE, NOT, AS OPPOSED
TO JILIO.
>> WHAT WE'RE DEALING WITH,
DURING DR. BURKELAND'S
TESTIMONY, CONTEMPORANEOUS
TO HIS TESTIMONY PHOTOGRAPHS
WERE BEING SHOWN TO THE JURY
AT THE SAME TIME.
THESE INJURIES WERE
APPARENTLY OBVIOUS TO
EVERYBODY THAT SAW THEM.
EVEN, GRIM'S OWN ATTORNEYS
MADE REFERENCE THESE WERE
OBVIOUS INJURIES.
THESE WERE EASILY
OBSERVEABLE.
EASILY OBSERVEABLE.
>> OBVIOUS INJURIES ABOUT
THE MURDER BUT WHAT ABOUT
THE SEXUAL BATTERY?
>> NO, I BELIEVE, THAT'S MY,
WHEN DR. BURKELAND'S
TESTIMONY I HAVE TO AGAIN
LOOK AT RECORD BUT I'M
ALMOST CERTAIN
CONTEMPORANEOUS TO HIS
TESTIMONY ABOUT THE VAGINAL
INJURIES THAT'S WHEN THEY
START, DISCUSSION ABOUT THAT,
I DO BELIEVE THERE WERE
PHOTOGRAPHS, WERE, BEING,
THESE WERE BEING SHOWN TO
THE JURY AS WELL.
I THINK THAT, MOREOVER, THE
SEXUAL BATTERY, SEXUAL
BATTERY IS CONSISTENT WITH,
FLORIDA, FINDING OF SEXUAL
BATTERY WAS ENTIRELY
CONSISTENT WITH FLORIDA LAWS
DEFINITION OF SEXUAL BATTERY
IN THIS CONTEXT.
THERE WAS --
>> WASN'T IT THE MEDICAL
EXAMINER'S TESTIMONY THAT
ACTUALLY ESTABLISHED THAT
THERE WAS A SEXUAL BATTERY
IN THIS CASE?
IT JUST SEEMS TO ME IF YOU
HAVE A MEDICAL EXAMINER, WHO
HAS, IN THE PAST, ON A
NUMBER OF OCCASIONS,
FABRICATED FINDINGS, ABOUT,
AUTOPSY, AND THEN YOU'VE GOT,
A SEXUAL BATTERY HERE REALLY
PRETTY MUCH SUPPORTED BY THE
MEDICAL EXAMINER'S TESTIMONY,
AND AN ATTORNEY, WHO SAYS
NOTHING ABOUT THE MEDICAL
EXAMINER, DOES NOT POINT OUT
TO THE JURY THAT THE MEDICAL
EXAMINER HAS IN THE PAST
FABRICATED THIS KIND OF
TESTIMONY, WHY ISN'T THAT
INEFFECTIVE ASSISTANCE OF
COUNSEL?
COULDN'T, ISN'T THE
PREJUDICE HERE, THAT HE MAY
NOT HAVE BEEN CONVICTED OF
THE SEXUAL BATTERY HAD THE
JURY UNDERSTOOD THAT?
>> WELL, EVEN, SETTING ASIDE
THE SEXUAL BATTERY, THIS WAS,
THIS WAS A PREMEDITATED,
PREMEDITATED MURDER.
FELT UNDER DEFINITION OF
PREMEDITATED MURDER.
THIS WAS INSTANCE MULTIPLE
WEAPONS WERE USED TO EFFECT
WAIT THE CRIME.
THE VICTIM WAS, STABBED
REPEATEDLY.
PREMEDITATION WAS
ESTABLISHED BY EITHER WAY
THE WEAPON OR MANNER IN
WHICH THE DEBT WAS
EFFECTUATED.
SEXUAL BATTERY, AGAIN, YOUR
HONOR, THIS WAS EVIDENCE
THAT WAS PRESENTED, EVEN HIS
ATTORNEYS APPEARED TO
CONCEDE THESE INJURIES DID
EVIDENCE, EVIDENCE THERE WAS
THESE APPARENTLY VAGINAL
TEARING, OF THE STRUCK IF
YOU.
AGAIN THE SEXUAL BATTERY
ISSUE, WAS NOT ONLY CONCEDED
TO BY MR. GRIM'S OWN
ATTORNEYS BUT APPARENTLY THE
JURY WAS MADE AWARE OF THESE
PICTURES AND THEY WERE --
>> WAS THERE ANY EVIDENCE AT
THE POST-CONVICTION
EVIDENTIARY HEARING THAT THE,
BURKELAND AUTOPSY WAS WRONG?
>> NO, YOUR HONOR.
THERE WAS NOTHING TO SUGGEST
THERE WAS ANY, ANYTHING THAT,
HE STATED EITHER, THROUGH
HIS TESTIMONY OR THROUGH HIS
EVALUATION THAT WAS
INCONSISTENT WITH ACTUALLY
HOW THE VICTIM ACTUALLY DIED.
SO THERE WAS NOTHING IN THE
RECORD AT ALL.
>> HOW ABOUT AS TO THE
SEXUAL ASSAULT?
>> NO, YOUR HONOR.
THERE IS NOTHING TO SUGGEST,
THERE WAS NOTHING REALLY TO
CALL INTO QUESTION ANYTHING
RELATED TO THESE VAGINAL
INJURIES WERE ALL, NOTHING,
NOTHING WAS BROUGHT FORTH
INN POST-CONVICTION TO CALL
INTO QUESTION ANYTHING ABOUT
THE SEXUAL BATTERY.
>> DID THEY PRESENT ANY
MEDICAL EXAMINER AT THE
EVIDENTIARY HEARING SAYING I
WOULD HAVE CONDUCT THIS HAD
DIFFERENTLY OR ANYTHING OF
THAT SORT?
>> NO YOUR HONOR, THERE IS
NOTHING AGAIN TO SUGGEST
THAT THERE WERE, WE WOULD
HAVE DONE SOMETHING
DIFFERENT HAD WE BEEN AWARE
OF SOMETHING WE MIGHT HAVE
LOOKED A LITTLE CLOSER,
WHATEVER.
NO, YOUR HONOR, THERE IS
NOTHING, NOTHING IN THIS
RECORD TO SUGGEST THAT AT
ALL.
YOUR HONORS, I, CERTAINLY,
AGAIN A LOT OF THE ISSUES
THAT HAVE BEEN BROUGHT
FORWARD BY MR. , MR. GRIM I
DO WANT TO EMPHASIZE THE
FACT THIS WAS AN INDIVIDUAL
WHO KNEW WHAT HE WANTED TO
DO AND HOW HE WANTED TO
PROCEED.
ALL THESE NEW CLAIMS RELATED
TO, POTENTIAL ALCOHOLISM OR,
PSYCHOTROPIC DRUGS OR WHAT
HAVE YOU, PRIOR PRECEDING
THE CRIME THESE ALL MIGHT
HAVE GONE TO MINIMIZING HIS
CULPABILITY, PERHAPS
RENDERING HIM INELIGIBLE FOR
A LESSER OFFENSE BUT THAT IS
NOT HOW HE WANTED TO
PROCEED.
HE CERTAINLY WAS AWARE, HE
CERTAINLY WAS AWARE WHAT HE
WANTED TO DO.
AND IF THERE ARE NO, NO
FURTHER QUESTIONS?
>> I JUST HAD ANOTHER
QUESTION ON THE BRADY
ASPECT.
>> OKAY.
>> OF THE MEDICAL EXAMINER.
ARE THESE ALL DOCUMENT THAT
IS THE, DEFENSE COUNSEL
HAVING KNOWN EVER THE
TESTIMONY AT THE DEPOSITION,
COULD HAVE THROUGH
REASONABLE DILIGENCE
OBTAINED THE RECORDS
THEMSELVES?
>> CERTAINLY, YOUR HONOR.
THIS IS, THERE WAS NOT AN
INSTANCE AN INSTANCE OF
TRYING TO HIDE THE
PROVERBIAL BALL.
THERE WAS NO SUGGESTION THAT
THE DEFENSE WAS AWARE OF
THIS AND, THERE WAS NO, THEY
WEREN'T AWARE, THE RECORD
WAS CLEAR THEY WERE AWARE OF
IT.
AS A MATTER OF FACT --
>> THAT GOES BACK TO, WHEN
THE STATE, IN A DEATH CASE,
WE'VE, USES, A MEDICAL
EXPERT, HAD THEIR, LICENSE
REVOKED, WHAT THEY END UP
DOING, THEY PUT THE WHOLE
CONVICTION AT RISK.
AND THEN NOT TO, NOT GIVE
MATERIALS THAT WOULD FURTHER
SHOW THIS PERSON IS REALLY
QUESTIONABLE CONCERNS ME.
NOW AGAIN I THINK THEY DON'T
WIN ON THE PREJUDICE PRONG
BUT, I'M JUST CONCERNED THAT
WE LOOK AT THESE CASES AND
THAT THE STATE'S GOT A
GREATER OBLIGATION, NOT TO
EVEN USE PEOPLE SUCH AS THIS,
THAT ARE, WHERE THERE ARE, I
MEAN, HE WAS ACCUSED OF
FABRICATING INFORMATION.
WHY WOULDN'T THEY HAVE
SOMEONE ELSE LOOK AT AUTOPSY
AND, PUT ON THAT PERSON?
THAT'S JUST SORT OF
RHETORICAL.
>> RIGHT.
>> BUT IT'S FOR THE FUTURE.
IT SEEMS TO ME THIS ISN'T A
GOOD THING TO ESTABLISH THAT
THE STATE SHOULD JUST NOT BE
PROVIDING THIS INFORMATION
OR SHOULD PUT ON PEOPLE LIKE
THIS PARTICULAR MEDICAL
EXAMINER.
>> RESPECTFULLY, YOUR HONOR
I UNDERSTAND YOUR CONCERNS.
I DO JUST WANT TO AGAIN, YOU
TOUCH ON JUSTICE CANTERO'S
POINT ABOUT THIS INFORMATION
WAS, CERTAINLY COULD HAVE
BEEN, MISS STI.
IT COULD HAVE TRANSFERRED
THE INFORMATION TO THE HILL
AND ROLOO.
YOU HAVE IN THE RECORD,
MR. HILL MAKES REFERENCE TO
THE FACT HE TRANSFERRED THE
FILE HE SAYS TO THE EFFECT I
READ THE DEPOSITIONS, READ
EVERYTHING THAT WAS IN THE
PUBLIC DEFENDER'S FILE.
WE SORT OF HAVE, IT'S KIND
OF, I DON'T WANT TO SAY
DISINGENUOUS, LATER ON HE
SAYS PERHAPS IF I WOULD HAVE
BEEN AWARE OF THIS
INFORMATION I MIGHT HAVE
PURSUED IT FURTHER.
WE DO HAVE HIM MAKING
STATEMENTS TO THE FACT THAT
I HAD READ THE DEPOSITIONS
AND I WAS AWARE --
>> THERE REALLY ISN'T FOR
BRADY, I HAVEN'T DEALT WITH
BRADY IN A WHILE GOT IN
POSSESSION JUST LIKE A
POLICE REPORT, THE FACT
MAYBE THROUGH DUE DILIGENCE
A DEFENSE LAWYER COULD FIND
IT IS NOT REALLY A DEFENSE,
IF IT'S MATERIAL, STATE
PRODUCING IT.
NOW, IT IS AS
JUSTICE ANSTEAD WAS POINTING
OUT, IT'S A DIFFERENCE IN
DEGREE THAT YOU'VE LOST YOUR
LICENSE, VERSUS AND HE IS
CONTESTING OH THAT WAS SOME
ADMINISTRATIVE SCREW-UP,
VERSUS, YOU FABRICATED
EVIDENCE IN AUTOPSIES AND
FALSIFIED AUTOPSIES.
>> RIGHT.
YOUR HONOR, I, YOUR HONOR, I
JUST WOULD ASK THE COURT TO
LOOK AGAIN AT DR. BURKELAND'S
DEPOSITION TESTIMONY.
HE DOES ACKNOWLEDGE, I DON'T
HAVE MY LICENSE.
THIS IS UNDER APPEAL.
I MADE A SERIES OF MISTAKES
IN MISSOURI, MULTIPLE,
MULTIPLE AUTOPSIES AND, THIS
IS, I MEAN, PERHAPS THESE
NEWSPAPER ARTICLES MAY BE A
LITTLE BIT MORE, MORE,
PERHAPS MORE DETAIL AND MORE
INFORMATION.
TO THE EXTENT THAT, THE
DEFENSE WAS UNAWARE OF ANY
PROBLEMS WITH DR. BURKELAND
THAT IS SIMPLY NOT THE CASE.
THE DOCTOR WAS FORTHCOMING
TO THE EXTENT I HAVE
PROBLEMS AND THERE ARE
QUESTIONS AS TO MY
CREDENTIALS IN ANOTHER
JURISDICTION.
I DON'T THINK THAT THAT,
THAT IS INFORMATION HIS
ATTORNEYS WERE AWARE OF.
THEY WENT, APPARENTLY WAS IN
THE FILE AND IF THIS WAS IN
THE FILE, THIS IS SOMETHING
THAT HIS ATTORNEYS SHOULD
HAVE AT LEAST VERY LEAST
HAVE REVIEWED PRIOR TO TRIAL
AND, EVEN THEY SEEM TO
ACKNOWLEDGE WE READ
EVERYTHING THAT WAS IN THIS
IT BOTH WAYS WHEREIN YOU SAY
WE DIDN'T READ THE
DEPOSITION F WE KNEW ON THE
OTHER HAND YOU DO SAY I READ
THIS INFORMATION AND I READ
EVERYTHING THAT THE PD HAD
IN THEIR FILES.
WITH THAT YOUR HONOR.
>> YOU'VE USED YOUR TIME.
>> THANK YOU, YOUR HONOR.
>> THANK YOU VERY MUCH.
>> SIMPLY ASK THIS COURT
AFFIRM THE DEFILE OF
MR. GRIM'S POST-CONVICTION
CLAIMS.
>> ALL RIGHT.
REBUTTAL?
>> DON'T APPEAR TO HAVE MUCH
TIME AS BRIEFLY AS TO THE
BRADY VIOLATION.
I KNOW MR. LATHAM HE IS
HOLDING FAST HIS POSITION.
I DO WANT TO MAKE CLEAR
THERE IS A SIGNIFICANT
DIFFERENCE BETWEEN THE
DOCUMENTS PRESENTED AND THE
DEPOSITION.
THE DEPOSITION, DR. BURKELAND
HE, BASICALLY SAID THAT THE,
HE WAS, LOST HIS LICENSE
BECAUSE HIS BOSS DIDN'T LIKE
HIM AND HE WAS MEETING UP
WITH HIS BOSS WHY THE
PROCEEDINGS WERE INSTITUTED.
HE TESTIFIED THAT THE
PROBLEMS OF AUTOPSY WERE DUE
TO A SPELLING ERROR.
>> DON'T YOU HAVE TO SHOW
THAT THERE IS SOME
INACCURACY, IN THE AUTOPSY
ITSELF?
HAVE SHOWN ANYTHING LIKE
THAT IN THIS POST-CONVICTION
PROCEEDING.
>> I WOULD CONCEDE THAT THE,
BRADY, DOCUMENTS GO TO
IMPEACHMENT VALUE.
IT'S CRITICALLY IMPEACHING
OF HIM.
THERE IS NO SPECIFIC
CONTROVERSY --
>> THAT DIDN'T REALLY, HERE
WE ARE, IN POST-CONVICTION
IN THIS VERY SERIOUS CAPITAL
CASE AND, THE, BOTTOM LINE
IS, WAS THE AUTOPSY ITSELF
PUT INTO QUESTION?
AND THE ANSWER IS, THERE
ISN'T ANY EVIDENCE IN
POST-CONVICTION THAT IT WAS.
>> JUSTICE WELLS, I WOULD
AGREE THERE ISN'T EVIDENCE
THAT THE AUTOPSY WAS WRONG
BUT BRADY ALSO GOES TO
IMPEACHMENT VALUE.
YOU'RE TALKING ABOUT A
MEDICAL EXAMINER BY A
JUDICIAL ORDER IN MISSOURI
FROM JUDGE CLARK THAT HE
FALSIFIED 12 AUTOPSIES,
THREE OF THEM BEING
HOMICIDES.
I AGREE, THAT IT IS,
IMPEACHMENT.
IT DOESN'T GO TO,
CONTRADICTING THE ACTUAL
AUTOPSY I CAN SEE THAT.
BUT IT IS POWER ANY
IMPEACHING EVIDENCE.
>> AND WITH THAT YOU'VE USED
YOUR --
>> I WOULD ASK THE COURT TO
REVERSE THE TRIAL COURT'S
ORDER AND VACATE MR. GRIM'S
CONVICTIONS.
I APPRECIATE THE OPPORTUNITY
TO ARGUE IN FRONT OF THE
COURT.
>> THANK YOU VERY MUCH.
THE COURT WILL STAND IN
RECESS UNTIL 9:00 TOMORROW
MORNING.