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Steven Edward Stein v. State of Florida
SC06-1505
NEXT CASE ON THE CALENDAR
THIS MORNING IS STEIN VERSUS
STATE OF FLORIDA.,,
>> GOOD MORNING, YOUR HONOR.
>> YOUR HONOR.
>> WE REPRESENT STEVEN STEIN,
THE DEFENDANT IN THIS MATTER.
AND AFTER AN EVIDENTIARY
HEARING, HEARINGS IN
JACKSONVILLE THAT BROUGHT AN
APPEAL OF THE HEARING COURTS
ORDER DENYING OUR CLAIMS.
INITIALLY, WE ALLEGE THAT THE
HEARING JUDGE SHOULD HAVE
RECUSED HIMSELF UPON TESTIFYING
IN THIS MATTER AND DID NOT.
THIS CASE SHOULD GO BACK FOR A
HARING ON THAT BEFORE A
DIFFERENT JUDGE.
>> IS THERE A LINE IN THESE
CASES, HERE WE ARE TALKING
ABOUT ALLEGATIONS THAT THE
STATE HAS PREPARED, THE
JUDGMENT AND WE LOOK ACROSS THE
SPECTRUM OF KINDS OF CASES,
WHERE A JUDGE HAS TO RESPOND TO
CERTAIN FLOW OF PAPER OR THOSE
KINDS OF THINGS.
ARE THERE LINES TO BE DRAWN AND
IF SO, WHERE ARE THEY AND HELP
US OUT WITH THAT ANALYSIS.
WHAT IS THIS PROPER ANALYSIS.
>> THERE ARE A -- THERE ARE
LINES TO BE DRAWN AND I BELIEVE,
FOR INSTANCE, IF THE JUDGE
SIMPLY INDICATED FROM THE BENCH,
LOOK, I DID NOT WRITE THIS
ORDER, THAT WOULD HAVE BEEN
SUFFICIENT.
HE COULD HAVE CONTINUED.
>> YOU MEAN THE ORDER THEY
FOUND.
>> RIGHT.
RHYME NOT GOING TO GIVE YOU A
HEARING ON THIS.
THE COURT DIDN'T WRITE THE
ORDER.
SOMETHING THAT --
>> WELL, IT WOULD BE IN
VIOLATION OF A NUMBER OF OUR
CASES.
THE COURT CANNOT RESPOND TO ANY
FACTUAL ALLEGATION.
OF A MOTION TO RECUSE.
WE HAVE BEEN DOWN THAT PATH
SEVERAL TIMES.
AND SO, THE ONLY RECOURSE THE
JUDGE HAS IS TO -- WHEN
SOMETHING IS ALLEGED AND THERE
IS ALLEGED TO BE A FACTUAL
MATTER, IS TO DO ESSENTIALLY
WHAT JUDGE WIGGINS DID.
>> WELL, YOUR HONOR, THIS WOULD
BE BEFORE -- NO MOTION TO
RECUSE WAS FILED.
WE FILED AN ALLEGATION.
WE HAD AN UNSIGNED COPY OF THE
ORDER IN OUR FILE.
WE FOUND AN UNSIGNED COPY OF
THE SENTENCING ORDER IN THE
TRIAL ATTORNEY -- IN THE STATE
ATTORNEY'S FILE.
WE WEREN'T -- DID NOT KNOW WHY
THEY WOULD HAVE IT.
>> DID YOU HAVE ANY MORE --
ANYTHING OTHER THAN THAT.
>> NO, WE JUST HAD THAT FOR A
PRIMA FACIE CASE, MADE THE
ALLEGATIONS.
>> AFTER THE MADE THE
ALLEGATION DID YOU TALK TO THE
STATE ATTORNEY, THE JUDGE'S JA
OR DO ANYTHING PRIOR TO THAT --
SO THAT YOU HAD A REASONABLE
SUSPICION?
IN OTHER WORDS, WERE THERE
NOTES GOING BACK AND FORTH
BETWEEN THE JUDGE OR ANY COPIES
OF THE -- ANYTHING ELSE OTHER
THAN AN UNSIGNED COPY OF THE
SENTENCING ORDER THAT WAS
ACTUALLY ENTERED IN THIS CASE.
>> NO, WE DID NOT AND I AGREE,
WE JUST DID NOT HAVE THAT
LAITION RELATIONSHIP WITH THE
STATE ATTORNEY IN THIS CASE.
THAT WOULD HAVE BEEN THE
DESIROUS THING TO DOCUMENT I
AGREE WITH YOUR HONOR AND WE
PROBABLY SHOULD HAVE.
NORMALLY WOULD HAVE.
WE JUST DIDN'T HAVE THAT KIND
OF RELATIONSHIP IN THIS CASE.
BUT WE CERTAINLY WOULD NOT --
WHAT HAPPENED IS THE STATE THEN
CONCEDED THE HEARING ON THE
ISSUE IN THEIR RESPONSE AND
THEY CONCEDE, WE WERE ENTITLED
TO AN EVIDENTIARY HEARING IN
THEIR ANSWER AND AT THAT POINT
WE THOUGHT WELL, MAYBE THERE IS
SOMETHING TO THIS.
BECAUSE THE STATE IS DREEING
WE'RE ENTITLED TO A HEARING.
>> I DIDN'T UNDERSTAND YOUR
EARLIER COMMENT WHICH -- IN
RESPONSE TO JUSTICE LEWIS AND
JUSTICE WELLS AND YOU SAID IT
WOULD HAVE BEEN PERFECTLY ALL
RIGHT FOR THE JUDGE TO HAVE
SAID FROM THE BENCH, I DID NOT
DRAFT THE ORDER.
DID YOU MEAN TO SAY I DID GRAFT
DRAFT THE ORDER?
I'M NOT SURE.
>> I PROBABLY WAS SPEAKING WAY
TOO LOOSELY WHEN I SAID THAT.
>> TELL ME, JUST TELL ME AGAIN
WHAT YOU SAID.
AND THEN WHAT YOU SNEENT OKAY.
IFT TRYING TO COMMUNICATE IF WE
WERE AT THE HUFF HEARING, WE
HAD A HUFF HEARING, WE WERE
ARGUING WE SHOULD BE ENTITLED
TO A HEARING AND THE JUDGE JUST
COMMENTED AT THE HEARING,
PERHAPS IT WOULDN'T BE PROPER,
COMMENTED, I'M NOT GOING -- AND
I'VE HAD IT HAPPEN, I WILL NOT
GIVE YOU A HEARING ON THIS, THE
COURT VERY WELL KNOWS THAT IT
WROTE THE ORDER.
OR SOMETHING TO THAT EFFECT.
>> BUT IF THE JUDGE DID THAT,
THEN THAT IS --
>> RIGHT.
>> THAT WOULD BE THE END OF THE
--
>> RIGHT.
>> BUT THE STATE STIPULATED TO
A HEARING.
IT DIDN'T EVEN -- WE DIDN'T
REALLY IMPRESS IT IN A NORMAL
FORM WE WOULD HAVE IN A HUFF
HEARING.
>> I WANT TO BE SURE -- SO YOU
DIDN'T IN THIS CASE SAY JUDGE,
HAVE THE STATE PREPARE THE
SENTENCING ORDER AND THEREFORE
WE NEED AN EVIDENTIARY HEARING
AND BECAUSE THE JUDGE WOULD BE
AN ESSENTIAL WITNESS WE ARE
MOVING TO RECUSE THE JUDGE.
THAT DID NOT HAPPEN.
>> WE WERE NOT TRYING TO RECUSE
THE JUDGE.
THIS A TRAP TO RECUSE HIM.
WE FOUND THE UNSIGNED ORDER.
AT THAT TIME, WE HAD HAD
SEVERAL CASES WHERE IN FACT THE
STATE DID WRITE THE ORDER.
>> AND THEN WHAT HAPPENS IS YOU
GET THE EVIDENTIARY HEARING.
AT THAT POINT THEN MOVE TO
RECUSE THE JUDGE.
>> FROM THE FURTHER CASE, YES,
YOUR HONOR.
>> AND THE JUDGE GRANTS IT AND
IT IS REALLY -- I'LL ASK THE
STATE TO COMMENT, THE JUDGE
GRANTS IT AS TO THAT ONE ISSUE,
BUT SAYS I'LL STAY IN THE REST
AND THAT IS WHERE YOU CLAIM
THERE IS ERROR AS A MATTER OF
LAW.
THERE CAN'T BE THIS HYBRID
RECUSE.
>> THAT IS CORRECT, YOUR HONOR.
>> YOU WERE TRYING TO GET TO
THE BOTTOM OF WHERE DID THAT --
COPY OF THE UNSIGNED ORDER COME
FROM.
>> THAT IS CORRECT.
>> AND WHY WAS -- AND SO --
TELL ME WHAT CHANGED AS FAR AS
THE FACT THAT IN ESSENCE THE
TRIAL JUDGE AFTER THE TESTIMONY
OF THE OTHER STATE ATTORNEY OR
THE -- WHOEVER, THAT SAID, NO,
THEY DIDN'T HAVE ANYTHING TO DO
WITH THE DRAFTING OF ANY ORDER,
FOR THE JUDGE JUST TO CONFIRM
HIS PROCEDURE WHICH APPEARS TO
BE TOTALLY INNOCENT PROCEDURE,
AND THEN WHY SHOULD THE FACT
THAT THE JUDGE AS OPPOSED TO
SAYING IT AT A HUFF HEARING,
LOOK, YOU KNOW, I DO MY OWN
ORDERS, WHATEVER, NOW, HE SET
IT AT A HEARING.
SO WE HAVE EVEN MORE INSULATION
AGAINST A -- WHY SHOULD THE
JUDGE BE DISQUALIFIED THEN TO
PRESIDE OVER THE FURTHER
PROCEEDINGS IF THIS COURT IS
GENERALLY INDICATING IT SHOULD
BE THE CASE?
>> BECAUSE, YOUR HONOR, I HAD
TO CRASS EXAMINE THE THE JUDGE
AT THAT POINT.
THE JUDGE DID NOT EXACTLY
CONFIRM THIS, ACTUALLY AT THE
HEARING DID NOT CONFIRM THE
STATE ATTORNEY'S TESTIMONY.
AS TO WHAT HAPPENED PRECISELY.
HE DID NOT EXTENT THAT HE SAID
I DIDN'T -- THE STATE ATTORNEY
SAID THAT THE STATE ATTORNEY
DID NOT DRAFT THE ORDER AND THE
JUDGE SAID THAT HE DIDN'T DRAFT
IT.
BUT THERE WAS CONFLICT IN THEIR
TESTIMONY AND THERE WAS --
[INAUDIBLE] CROSS-EXAMINATION
UNDER OATH WITH THE JUDGE BEING
CALLED TO THE STAND BEFORE
ANOTHER JUDGE.
>> SO PUTTING THE JUDGE IN SORT
OF THE ADVERSARIAL SITUATION,
IS THAT WHAT YOU ARE SAYING?
>> YES, YOUR HONOR, I BELIEVE
SO, WHERE HE IS CALLED TO BE
CROSS EXAMINED AND WHERE HIS
CREDIBILITY IN FACT IS
CONSIDERED BY ANOTHER JUDGE.
>> WOULD -- IF THAT HAPPENED IN
ANY OF THESE CASES WE WOULDN'T
HAVE A HYBRID SITUATION IN ANY
OF OUR CASES, FOR EXAMPLE, IF
SOMEONE, A DEFENDANT SAYS THESE
DOCUMENTS WERE GIVEN TO THIS
CIRCUIT JUDGE.
AND THAT CIRCUIT JUDGE NEEDS TO
RESPOND TO THAT AT SOME TIME.
BY THE WAY, THE PROCEDURES FLOW
AND THAT JUDGE STANDS -- GETS
ON A WITNESS STAND AND SAYS
WHAT HAPPENS TO THE FLOW OF
PAPERS AND THEN YOU CROSS
EXAMINE AND THAT JUDGE UNDER
THE THEORY WOULD ALSO BE LESS
QUALIFIED BECAUSE IT IS THE
CROSS-EXAMINATION ASPECT THAT
CREATES, AS I UNDERSTAND, WHAT
YOU ARE SAYING, THE BASIS FOR
IT.
OR IS THERE A TIME WHEN YOU CAN
HAVE A HYBRID?
THAT IS WHAT WE'RE TRYING TO
UNDERSTAND, IS THERE -- IS
THERE A LINE, THE
CROSS-EXAMINATION, IS IT THE
ALLEGATION?
IS IT THE HEARING?
WHAT IS IT.
>> I THINK, CERTAINLY, IN THIS
CASE WE HAVE A HEARING WITH
CROSS-EXAMINATION WHERE THE
CREDIBILITY IS AN ISSUE OF THE
WITNESS, THAT IN THIS CASE
CERTAINLY THE JUDGE SHOULD
RECUSE HIMSELF FROM HEARING ANY
FURTHER MATTERS.
>> HAVEN'T WE ALREADY CROSSED
THAT?
WASN'T THERE A CASE INVOLVING A
JUDGE CARNEY DOWN IN DADE
COUNTY AND IT WAS THE FLOW OF
DOCUMENTS AND THE JUDGE WAS
CALLED TO THE STAND AND ANOTHER
JUDGE HEARD THE CASE, AND HEARD
WHAT WAS SAID ABOUT IT AND THEY
DISCUSSED HOW THESE DOCUMENTS
WOULD FLOW, AND DIDN'T WE SAY
THAT THE HYBRID APPROACH WAS
ACCEPTABLE?
>> AT LEAST APPROVED.
>> YES.
YES.
YOUR HONOR, I THINK -- AND THAT
HAPPENS IN THESE CASES.
SOMETIMES WE APPROACH THIS
POINT IN VARIOUS MATTERS.
BUT I THINK WE HAVE A WHOLE
SEPARATE HEARING, BEFORE
ANOTHER JUDGE THAT WE ENTER
INTO THE CASE, IT WAS
CONTEMPLATED BY THE GEORGIA
SUPREME COURT IN THE CASE THAT
WE CITED.
ALMOST IDENTICAL TO THIS, WHERE
THE GEORGIA SUPREME COURT SAID
SHOULD RECUSE THE JUDGE, SHOULD
RECUSE HIMSELF FROM HEARING
ANYTHING FURTHER.
>> DID YOU -- WHAT I WOULD LIKE
TO KNOW, IS -- OKAY THE FIRST
TIME YOU FILED THE MOTION TO
RECUSE WAS BEFORE -- AFTER THE
EVIDENTIARY HEARING WAS AGREED
TO ON THIS ISSUE, FILED A
MOTION TO RECUSE, BECAUSE YOU
SAID HE HAD TO BE A WITNESS.
>> RIGHT, BEFORE WE HAD ANOTHER
HEARING, SO...
>> NOW, DID YOU THEN AFTER THE
HEARING BECAUSE OF HAVING TO
CROSS-EXAMINATION AND THE
ISSUES WITH CREDIBILITY THAT IT
WASN'T JUST A SIMPLE LT -- THE
JUDGE JUST SAYING A LINE OR TWO,
DID YOU RENEW OR FILE A
SEPARATE MOTION TO RECUSE
ALLEGING NOW BASED ON THE
TESTIMONY A REASONABLE PERSON
WOULD BE IN FEAR OF THE JUDGE
BEING ABLE TO IM PARTIALLY
WEIGH THE OTHER ISSUES.
>> DO YOU UNDERSTAND WHAT I'M
SAYING.
>> THE ONE IS -- ALL OR NOTHING
AND I'M NOT SURE THE COURT
THOUGH WE MAY HAVE GONE THERE
ON ROBINS VERSUS STATE WHERE WE
SAID THE MOTION TO DISQUALIFY
WAS LEGALLY SUFFICIENT BUT
BEYOND THAT IS THERE A POINT
THERE SHOULD BE A SEPARATE
MOTION FILED AFTER THE HEARING
TO SAY NOW WE DO HAVE A
REASONABLE FEAR BECAUSE THE
JUDGE REALLY BECAME -- PLACED
IN AN ADVERSARIAL POSITION.
>> I SHOULD POINT OUT WE FILED
A MOTION, A WRIT OF PROHIBITION
WITH THE COURT.
THE COURT DENIED IT.
A PROHIBITION FROM THE JUDGE
PRESIDING OVER ANY FURTHER --
>> WHERE WE HAD TO FILE THE
MOTION TO RECUSE FIRST.
>> AND THEN A --
>> WAS THIS ONLY ONE MOTION TO
REFUSE -- RECUSE.
NOW DO YOU THINK IN TERMS OF
LOOKING AT COMPANY, SOMEBODY
THAT DOES A LOT OF THESE CASES
THAT THAT PROCEDURE WOULD HAVE
PUT YOU IN A DIFFERENT
SITUATION AND THE JUDGE IS
LOOKING AT IT GAIN AND SAYING,
YOU KNOW WHAT?
NOW I CAN SEE A REASONABLE
PERSON WOULD FEAR THAT I HAVE
BECOME AN ADVOCATE.
I OUGHT TO RECUSE MYSELF.
>> I UNDERSTAND WHAT YOUR HONOR
IS SAYING AND TO SOME EXTENT
AND THIS CASE ABSOLUTELY WOULD
NOT HAVE MATTERED AND IN FACT
WOULD HAVE ENCOURAGED THE --
INCURRED THE WRATH AND WOULDN'T
HAVE BEEN WOULD HAVE BEEN IF WE
WERE FILING TO MUCH AND
UNDERSTOOD THE JUDGE WOULD
REMAIN ON THE CASE.
>> WHAT I'M HAVING DIFFICULTY
WITH IS AS JUSTICE ANSTEAD
FOLLOWED UP, YOU SAID -- THE
JUDGE HAD SAID, YOU KNOW, I
DIDN'T DO IT AT THE HUFF
HEARING AND HERE YOU HAVE AN
EVIDENTIARY HEARING AND IT'S
NOT THAT YOU ARE RAISING ANY
ISSUE AS TO WHAT THE JUDGE DID
SOMETHING WRONG AND THIS ORDER,
NOW, IT IS THAT YOU HAVE -- YOU
CONFIRM AND SO THE DECISION IS,
LET'S MOVE ON AND AFTER ALL THE
CASE HAS BEEN IN POSTCONVICTION
SINCE 1991 AND SPEAKING ON
BEHALF OF OUR CLIENT.
I DON'T HAVE A PROBLEM WITH THE
JUDGE WIGGINS IS A JUDGE --
>> I'M TALK ABOUT AT THE
PROCEDURE.
TO BE THE ONLY WAY THE CASE
WOULD MOVE FORWARD IN ANY KIND
OF SENSIBLE WAY.
>> NOT OWE THEN WAY, YOUR HONOR,
BUT CERTAINLY ANOTHER JUDGE
COULD HAVE TAKEN THE CASE AND
HANDLED IT.
>> OUR CLIENT IS SITTING IN THE
CHAIR AND HIS REAR EXCEPTION, A
REASONABLE CLIENT.
I DARE SAY ANY CLIENT I HAVE
EVER HAD WOULD SAY IF HE WANTS
THE JUDGE TO GET UP AND TESTIFY
AND THEN GET BACK ON THE BENCH
AND DECIDE ISSUES HE WOULD SAY
THE JUDGE IS NOT GOING TO BE
UNBIASED.
>> AND THE ANSWER, JUSTICE
PARIENTE YOU DIDN'T FILE
ANOTHER MOTION AFTER THAT.
THAT IS IRRELEVANT BECAUSE YOU
DIDN'T FILE ANOTHER MOTION.
>> RIGHT.
WE DID NOT FILE ANOTHER MOTION
TO RECUSE.
>> SO WHETHER A DEFENDANT WOULD
FEEL REASONABLE GROUNDS --
REASONABLE FEAR THAT THE JUDGE
WOULD BE BIASED BECAUSE HE HAD
ALREADY TESTIFIED, IS
IRRELEVANT IN THIS CASE,
BECAUSE THAT IS NOT THE ISSUE
YOU RAISED.
>> WELL, THAT IS A STANDARD
THAT YOU ALWAYS APPLY.
>> THAT IS NOT THE ISSUE THAT
YOU RAISED.
YOU DIDN'T RAISE THAT.
>> YOU DIDN'T FILE A MOTION
AFTER HE TESTIFIED SAYING YOUR
CLIENT HAD A REASONABLE FEAR
THE JUDGE WOULD BE BIASED.
>> NO, WE DID NOT FILE ANOTHER
MOTION, ALTHOUGH WE PUT IT OUT
CLEARLY IN SEVERAL MOTIONS BUT
DIDN'T FILE ANOTHER MOTION.
>> WHAT WAS THE DISPUTED ISSUE
OF FACT ONCE YOU GOT TO THE
HEARING OFFICE HAD DONE TO YOUR
DISCOVERY AND TALKED TO THE
STATE ATTORNEY AND THE
SECRETARY AND THE JA AND
WHOEVER ELSE MAY HAVE HAD
KNOWLEDGE ABOUT THE UNSIGNED
DOCUMENT, AT THE TIME YOU GOT
TO THE HEARING, WHAT WAS THE
DISPUTED ISSUE OF FACT?
>> THE JUDGE TESTIFIED AS TO
WHAT HE DID WITH THE ORDERS AND
HOW HE EXECUTED THEM AND WHEN
HE SIGNED THEM.
>> AND WAS THERE ANY CONTRARY
EVIDENCE TO WHAT THE JUDGE SAID,
THAT THE DEFENSE COUNSEL
DISPUTED, THE STATE ATTORNEY
DISPUTED, DID ANYBODY DISPUTE
WHAT THE THE JUDGE SAID?
>> NO, YOUR HONOR, WE ASKED
ABOUT THE UNSIGNED ORDER.
THAT IS ALL WE HAD SO I'M NOT
ARGUING WITH THE WISDOM OF
WHETHER WE SHOULD HAVE BEEN
GRANTED A HEARING.
>> LET ME ASK YOU A QUESTION.
WHAT MADE THIS JUDGE A WITNESS.
>> THE JUDGE.
>> WHO MADE THE JUDGE A
WITNESS.
>> WE FILED -- WE TALKED TO --
>> YOU MADE HIM AS A WITNESS.
>> YES.
>> WHY WAS HE A NECESSARY
WITNESS IF YOU HAD THE STATE
ATTORNEY AND ALL THESE OTHER
AVAILABLE WITNESSES?
>> BECAUSE THE STATE TERENCE --
HE DENIED DOING IT AND UNDER --
I MEAN, WE COULD HAVE NOT NOT
CALLED HIM I SUPPOSE BUT I
BELIEVE WE HAD TO, WE COULD
CALL AND ASK HIM WHETHER HE
WROTE THE ORDER.
>> YOU HAVE SEVERAL OTHER
ISSUES AND YOU REALLY ARE GOING
-- MAKE SURE YOU HAVE A CHANCE.
>> [INAUDIBLE] THE IAC ISSUE IS
IMPORTANT IN THIS CASE.
WE HAVE AN ISSUE ON BOTH THE
GUILT PHASE, THE STRATEGY OF
THE TRIAL ATTORNEY WAS TO HAVE
A JURY NULLIFICATION.
>> HIS TESTIMONY WAS THAT THE
STRATEGY WAS AGREED TO.
>> AND THE DEFENDANT AGREED TO
IT, AT LEAST WAS AWARE OF IT --
>> WELL, HIS TESTIMONY, WAS
THAT IT WAS AGREED TO, NOT THAT
HE WAS AWARE OF IT BUT THAT HE
AGREED TO IT.
>> YES.
>> HOW IS THAT A DEFICIENT
PERFORMANCE IF HE CONSULTED
WITH HIS CLIENT AND HIS
TESTIMONY WAS THAT I THINK
THERE WAS A CONFESSION IN THIS
CASE.
>> THERE WAS.
>> AND HIS TESTIMONY WAS THAT
HIGH THOUGHT THE ONLY
REASONABLE WAY TO BE HONEST
WITH THE JURY AND TO INGRATIATE
HIMSELF FOR THE PENALTY PHASE
PURPOSES WAS TO ADMIT THE
ROBBERY.
WHY IS THAT DEFICIENT
PERFORMANCE?
HAVEN'T WE IN SEVERAL CASES
SAID THAT THAT IS A REASONABLE
STRATEGIC DECISION.
>> YES, YOU HAVE, YOUR HONOR,
IN TERMS OF THE CONCESSION
ISSUE.
BUT IN THIS CASE, JURY NULL FIX
IS ACTUALLY AN IMPROPER
PROCEDURE AND SHOULDN'T BE USED,
THE COURT CONDEMNED USING IT AS
A STRATEGY.
THAT WAS NOT MADE CLEAR TO THE
CLIENT.
HE WAS -- THE ATTORNEY
REPRESENTING -- THAT IS WHAT HE
WAS GOING TO DO AND HE THOUGHT
THAT WAS THE BEST STRATEGY.
BUT IS NOT A PROPER -- IT HAS
BEEN CONDEMNED IN BOTH -- BY
THIS -- IN THE FLORIDA COURTS
AND FEDERAL COURTS AS A TAX --
TACTIC.
NOW IT IS -- IT IS PARTICULARLY
AGGRAVATED IN THIS CASE WHERE
THE TRIAL ATTORNEY ALSO FOUND
-- DIDN'T DO ANYTHING TO
PRESENT HIS CLIENT AS A PERSON.
PRESENT ANY PENALTY PHASE
MITIGATION.
>> IN THE NIXON CASE DIDN'T THE
DEFENSE ATTORNEY CONCEDE THAT
THE MURDER HAD OCCURRED AND WAS
JUST PLEADING FOR THE
DEFENDANT'S LIFE?
YEARLY IF THAT WAS EXACTLY --
>> YES.
YES.
>> AND WE SAID THAT THAT WAS --
WELL, THE SUPREME COURT SAID
THAT WAS JUDGE TO STRICKLAND
ANALYSIS AND WE, ON REMAND I
BELIEVE SAID UNDER STRICKLAND
IT DIDN'T PASS THE STRICKLAND
TEST.
>> RIGHT.
>> SO IF THE CONCESSION TO THE
MURDER ITSELF IS NOT
INEFFECTIVE ASSISTANCE OF
COUNSEL, HOW WOULD THE
CONCESSION AGREED TO BY THE
DEFENDANT, NONETHELESS, HOW
WOULD THAT INEFFECTIVE
ASSISTANCE OF COUNSEL.
>> WELL, BECAUSE, COUNSEL DID
NOTHING TO EVEN MAKE IT
POSSIBLE.
A JURY NULLIFICATION POSSIBLE.
IN ORDER TO DO THAT WE'D HAVE
TO PRESENT EVIDENCE WHICH
HUMANIZED HIS CLIENT TO THE
JURY SO THEY WOULD BE --
>> THAT IS A TOTALLY CRATE
ARGUMENT AS TO WHETHER HE
PRESENTED MITIGATION ARGUMENT.
A TOTALLY DIFFERENT ISSUE.
>> BUT HE'S GOING SAY I'LL TRY
AND GET THE JURY TO VOTE
AGAINST IT.
YOU STILL HAVE SOME STRATEGY
AND SOME REASON FOR THE JURIES
TO DO THAT.
YOU CAN SAY THAT IS WHAT I'M
GOING TO DO BUT HE DIDN'T DO
ANYTHING TO BRING IT ABOUT.
DIDN'T PRESENT ANY HUMANNIZING
EVIDENCE.
>> I'M NOT CLEAR, I DON'T THINK
I GOT AN ANSWER TO MY QUESTION.
>> I GUESS I'M TRYING TO --
>> NIXON WE SAID IT IS NOT
INEFFECTIVE ASSISTANCE OF
COUNSEL TO CONCEDE TO THE
MURDER, HOW IS IT INEFFECTIVE
ASSISTANCE OF COUNSEL TO
CONCEDE TO THE ROBBERY?
>> IN THIS CASE, THE TRIAL
ATTORNEY SAID, I HAVE THIS
STRATEGY BUT DID NOTHING TO
IMPLEMENT THE STRATEGY.
THAT IS THE PART OF HIS
ACTIONS.
I AM MAINTAINING NOW WHICH ARE
NOT DEFENSIBLE.
BECAUSE THERE WAS A LOT OF
AVAILABLE MITIGATION TO MAKE
HER STEIN, THE HUMAN BEING, AS
MR. CHRISTMAS'S ATTORNEYS DID
WITH HIM.
THE CO-DEFENDANT WHO IS SERVING
A LIFE SENTENCE.
IF I COULD BRIEFLY MOVE --
>> YOU HAVE USED ALL YOUR TIME,
YOUR FINAL -- DO YOUR FINAL
ARGUMENT.
>> BRIEFLY ON THE CULL BA --
CULPABILITY ISSUE THERE IS
NOTHING TO DIFFERENTIATE
BETWEEN MR. CHRISTMAS AND
MR. STEIN.
>> WASN'T MR. STEIN THE
SHOOTER?
>> PERHAPS, MR. CHRISTMAS SAYS
NOW HE IS.
MR. CHRISTMAS SAID SEVERAL
TIMES.
THAT IS NOT THE DEPOSIT TIFF
ISSUE IN THIS CASE AND THERE
WAS EVIDENCE AT THE TRIAL THAT
HE WAS THE SHOOTER.
MR. CHRISTMAS'S TRIAL, THE
COURT HAD KNOWN THAT ANY WAY,
UP TO THE --
>> ARE YOU SAYING THEN IF YOU
ARE THE SHOOTER THAT YOU ARE
NOT -- THAT EVEN IF YOU ARE NOT
THE SHOOTER YOU ARE EQUAL
CULPABLE AND THEREFORE, ALL OF
THE SENTENCES HAVE TO BE THE
SAME.
>> THE JUDGE THAT HEARD BOTH
THESE CASES FOUND MR. CHRISTMAS
WAS MORE CULPABLE AND THERE WAS
EVIDENCE AT THAT TIME, WHEN HE
MADE THOSE REMARKS AND THOSE
FINDINGS IN THE SENTENCING
ORDER.
THERE WAS EVIDENCE AT THAT TIME
THAT MR. STEIN MIGHT BE THE
SHOOTER.
THE BAILIFF TESTIFIED THAT
MR. CHRISTMAS SAID AT HIS TRIAL
THAT MR. CHRISTMAS TOLD THE
BAILIFF THAT MR. STEIN WAS THE
SHOOTER.
BUT MR. CHRISTMAS SAID, I WOULD
HAVE SHOT HIM ANY WAY.
MR. CHRISTMAS WAS THE OLDER MAN,
HE WAS THE CONVICT.
THIS WAS HIS PLAN, BY EVERY
STANDARD HE WAS THE, QUOTE,
MASTERMIND, AS THE COURT HAS
SAID IN THE --
>> BUT, MR. STEIN, IT WAS
MR. STEIN'S GUN?
AND MR. STEIN WAS THE ONE WHO
WENT OUT TO THE CAR AND GOT THE
GUN?
SO...
>> MR. CHRISTMAS HAD A GUN AS
WELL AND COULD HAVE --
>> ANOTHER GUN BUT NOT THE GUN
THAT WAS THE MURDER WEAPON.
>> RIGHT.
RIGHT.
THE RIFLE.
MR. --
>> ANY OTHER --
>> THAT IS CORRECT.
>> ANY OTHER POINTS.
>> WHEN YOU CONSIDER WITH THE
MITIGATION, THERE IS NO
DIFFERENCE BETWEEN THESE TWO.
THANK YOU.
>> MS. MILSAPS.
>> GOOD MORNING, CHIEF JUSTICE
LOSE --
LEWIS, I WILL DISCUSS THE SAME
THREE ISSUES BUT IN A REVERSE
ORDER, FIRST I WILL TALK ABOUT
THE RELATIVE CULPABILITY.
IN BOTH TRIALS, THERE TRIALS THERE IS NO
INCONSISTENCY.
IN BOTH TRIALS STEIN IS THE
TRIGGER MAN, OKAY?
MOREOVER, MR. CHRISTMAS IS NOT
THE OLDER DEFENDANT.
>> THE JUDGE IN THIS CASE, DID
HE ACTUALLY FIND THAT MR. STEIN
WAS THE TRIGGER PERSON?
>> YES, IN BOTH CASES, YOUR
HONOR.
STEIN IS THE TRIGGER MAN.
>> THERE IS NO DISPUTE ANYWHERE.
STEIN'S CASE, CHRISTMAS'S CASE
UP ON APPEAL OF BOTH CASES.
EVERYBODY AGREES STEIN IS THE
TRIGGER MAN.
IN BOTH THE CHRISTMAS APPEAL AND
THE STEIN APPEAL.
YOU'VE ALSO FOUND HIM TO BE THE
TRIGGER MAN.
THERE'S JUST SIMPLY NO DISPUTE
ANYWHERE EITHER BASICALLY AT
TRIAL -- NONE OF THE EVIDENCE
HAS MR. CHRISTMAS AS THE TRIGGER
MAN, OKAY?
IT WAS STEIN'S RIFLE THAT WAS
THE MURDER WEAPON.
BOTH VICTIMS WERE SHOT, ONE
VICTIM FIVE TIMES, THE OTHER
VICTIM FOUR TIMES WITH A .22
RIFLE.
THAT WAS MR. STEIN'S RIFLE.
THERE IS NO MASTER MIND HERE
EITHER.
THIS WAS A CONSPIRACY TO COMMIT
FIRST-DEGREE MURDER, BUT IT WAS
AN AGREEMENT.
THEY WERE BOTH IN AGREEMENT.
AS A MATTER OF FACT, CHRISTMAS,
IN HIS PENALTY PHASE, PRESENTS
EVIDENCE THROUGH HIS
PSYCHOLOGIST THAT HE IS A
DEPENDENT PERSONALITY WHICH
THERE'S NO FINDING OF
MR. CHRISTMAS BEING THE MASTER
MIND.
AS TO THE JURY PARDON ISSUE,
WHAT I TAKE HIS ARGUMENT TO BE
IS THIS: COUNSEL WAS INEFFECTIVE
BECAUSE WHILE HE HAD THIS
STRATEGY OF JURY PARDON, HE HAD
NO WAY, HE DID NOT PROCEED TO
IMPLEMENT IT, FOR INSTANCE, BY
MAKING AN ARGUMENT FOR JURY
NULLIFICATION TO THE JURY OR FOR
ASKING FOR JURY INSTRUCTION FOR
JURY NULLIFICATION.
THE REASON HE DIDN'T DO THAT,
HE'S NOT ALLOWED --
>> NO, HE SAID THIS IS DIFFERENT
THAN NIXON BECAUSE IN NIXON
THERE WAS AN ADMISSION OF WHAT
HAD OCCURRED, BUT THEN THE
LAWYER WENT ON THROUGH ARGUMENT
AND PUT ON MITIGATION AND PUT ON
A CASE TO HUMANIZE THE PERSON.
HE'S ARGUING THAT THERE'S A
DISTINCTION IN THIS CASE BECAUSE
THERE WAS AN ADMISSION, BUT DID
NOT GO FURTHER AND TO PRESENT ED
SO -- EVIDENCE SO A JURY COULD
FIND DIFFERENTLY.
THAT'S WHAT HIS ARGUMENT IS.
>> OKAY, WELL, NOW REMEMBER
WHERE A JURY PARDON IS GOING TO
MATTER, OKAY?
>> IT MAY SPARE HIS LIFE.
THE QUESTION IS CAN YOU MAINTAIN
CREDIBILITY THROUGH ADMISSION OF
CONDUCT OR THINGS THAT ARE GOING
TO COME OUT, A CONFESSION'S
GOING TO COME IN, BUT THEN PUT
ON ENOUGH MITIGATION TO STILL
SPARE THE FELLOW'S LIFE, THAT'S
THE ARGUMENT HE WAS MAKING.
>> THAT HAS TO DO WITH GUILT OR
INNOCENCE, NOT PENALTY PHASE.
I AGREE WITH YOU, ONE OF THE
REASONS YOU DO THIS IS TO KEEP
YOUR CREDIBILITY.
>> AND THAT'S WHAT HE'S SAYING.
>> THERE'S NO WAY HE LOST HIS
CREDIBILITY.
AS A MATTER OF FACT, LET ME TELL
YOU WHAT HAPPENED --
>> PLEASE ADDRESS, YOU'RE GOING
THROUGH YOUR TIME.
HIS ARGUMENT IS THAT HE DID NOT,
THEN, FOLLOW UP WITH EVIDENCE OF
MITIGATION, OF REASONS TO GIVE
THE JURY A REASON TO SPARE HIS
LIFE.
THAT'S HIS ARGUMENT.
>> OH, BUT, YES HE DID.
HE MADE A PLEA FOR LIFE.
>> OKAY.
>> BUT I DON'T AGREE THAT YOU
CAN MIX THEM TOGETHER THE WAY
HE'S DOING.
>> DIDN'T HE ACTUALLY, I MEAN,
IT WASN'T THAT HE -- HE CONCEDED
THE ARMED ROBBERY, BUT HE DID
ARGUE HIS CLIENT WASN'T THE
SHOOTER OR THE MASTERMIND.
IT'S NOT LIKE HE JUST LAID DOWN
IN THE GUILT PHASE OF THIS CASE.
>> NO, YOUR HONOR, HE
BASICALLY -- HIS ARGUMENT --
>> WHY DON'T YOU FOCUS -- HE
SAID, WELL, I HAD TO CONCEDE
ARMED ROBBERY BECAUSE AFTER THE
CONFESSION WASN'T SUPPRESSED.
DID HE ATTEMPT TO SUPPRESS
THE --
>> HE MOST CERTAINLY DID.
STEIN ADMITS THAT THIS IS A
ROBBERY GONE BAD.
LITERALLY THOSE ARE HIS WORDS IN
THE CONFESSION.
THE MINUTE THE DEFENDANT SAYS
THAT, WHAT A DEFENDANT IS
ADMITTING TO IS NOT ONLY ROBBERY
BUT FELONY MURDER.
AND, YES, HE TRY TODAY TAP DANCE
AROUND THAT, AND WHAT HE DID WAS
HE ADMITTED TO THE ROBBERY,
RIGHT?
BUT THEN ARGUED FOR SECOND
DEGREE AND MANSLAUGHTER.
SO HE DID MAKE AN ARGUMENT THAT
I PROPERLY SEE IS A JURY
NULLIFICATION.
>> SO HE DID MORE THAN THE
DEFENSE LAWYER NIXON --
>> SAID CHECK THE BOX, YES, BUT
THE BOX HE WANTED HIM TO CHECK
WAS THE ROBBERY BOX, NOT THE
FIRST-DEGREE MURDER BOX.
REMEMBER WHAT HAPPENED IN NIXON.
THE LAWYER SAID CHECK THE FIRST
DEGREE.
THAT IS NOT WHAT JEFF MORROW
SAID HERE.
HE SAID CHECK THE ROBBERY BOX,
AND THEN LET'S TALK.
WHAT HE WAS TRYING TO DO WAS GET
THEM DOWN TO SECOND DEGREE
AND/OR MANSLAUGHTER.
HE CANNOT DIRECTLY ASK FOR A
JURY NULLIFICATION.
YOU'RE NOT ALLOWED TO DO THAT.
OKAY?
SO, NOW, AS TO THE -- OH.
THEY NOT ONLY HAD A CONFESSION
HERE, THIS WAS AN EXTREMELY
STRONG CASE.
WE HAD THE ROOMMATE HAD
OVERHEARD AND BECAME PART OF WHO
TESTIFIED AT TRIAL, KYLE WHITE,
THAT THIS WAS ABOUT TWO WEEKS
BEFORE THIS CRIME THAT THEY WERE
TALKING ABOUT HOW TO GET INTO
THE VARIOUS PIZZA HUTS IN
JACKSONVILLE.
THERE WAS ONE ON TURNER THAT HAD
A MOTION DETECTOR, AND THEY WERE
SAYING THAT ONE WASN'T GOING TO
WORK WHICH IS WHY THEY TARGETED
THE EDGEWOOD PIZZA HUT WHERE
MR. CHRISTMAS HAD WORKED
PREVIOUSLY AND WAS IDENTIFIED BY
ONE OF THESE TWO VICTIMS, BOBBY
HOOD.
ONE OF THESE VICTIMS KNEW HIM.
THE COOK AT THE PIZZA HUT
TESTIFIED THAT BEFORE HE LEFT
THEY WERE HAVING A CONVERSATION
LIKE PEOPLE WHO KNEW EACH OTHER,
OKAY?
SO THERE WAS AN AGREEMENT TWO
WEEKS BEFORE THIS, NOT ONLY TO
ROB, BUT TO MURDER.
TO WITNESS ELIMINATION BECAUSE
THEY KNEW THAT THEY WOULD KNOW
THEM.
>> SO WHY AREN'T THEY EQUALLY
CULPABLE?
>> BECAUSE HE'S NOT THE TRIGGER
MAN.
THERE'S NO DISPUTE HERE ANYWHERE
AT ANY STAGE, TRIAL LEVEL IN
EITHER TRIAL THAT STEIN WAS THE
ACTUAL TRIGGER MAN.
HE KILLED BOTH PEOPLE.
>> AND ONE OTHER THING THAT YOU
HAD SAID THAT THIS DEFENDANT WAS
OLDER THAN THE OTHER DEFENDANT.
BUT ISN'T IT TRUE THIS
DEFENDANT, IN FACT, THEY FOUND
AS A MITT GATOR, NO SIGNIFICANT
CRIMINAL HISTORY WHEREAS THE
CO-DEFENDANT HAS A CONVICTION OF
VIOLENT FELONY, MANY OF THEM.
>> NOT VIOLENT FELONIES.
THE PRIOR VIOLENT FELONY HERE IS
ONLY ON THE CONTEMPORANEOUS
MURDER.
YES, CHRISTMAS HAS A RECORD, BUT
IT'S THIS FOR THINGS LIKE GRAND
THEFT AND BURGLARY.
HE DID NOT HAVE A PRIOR VIOLENT
FELONY AS AN AGGRAVATOR OTHER
THAN THE CONTEMPORANEOUS MURDER.
>> BUT YOU THINK OUR CASE LAW,
AS LONG AS IT IS ESTABLISHED
THAT THIS ONE IS THE SHOOTER,
THAT MAKES HIM MORE CULPABLE NO
MATTER WHAT?
>> AS A GENERAL RULE, YES.
IT DOESN'T MEAN A TRUE MASTER
MIENLD -- BUT IN GENERAL, YOUR
BEING THE TRIGGER MAN DOES NOT
MAKE YOU AS CULPABLE AS THE
PERSON WHO WAS NOT THE TRIGGER
MAN.
OKAY.
AS TO THE MOTION TO DISQUALIFY
JUDGE WIGGINS, WHAT WE DID WAS
BIFURCATE THIS.
WE HELD ONE -- ON THE PATTERSON
CLAIM WHERE JUDGE WIGGINS
TESTIFIED WITH ANOTHER JUDGE,
JUDGE MORAN FOR MAKING THOSE
HEARINGS, AND THEN JUDGE
WIGGINS --
>> OKAY, I'D LIKE YOU TO
DISTINGUISH, IF YOU CAN, ROBERTS
V. STATE WHERE WE SAID A MOTION
TO DISQUALIFY WAS LEGALLY
SUFFICIENT BECAUSE THE JUDGE HAD
ASKED THE STATE TO DRAFT THE
SENTENCING ORDER.
NOW, I DON'T KNOW IF THAT WAS IN
THAT CASE BECAUSE I DIDN'T GO
BACK TO SEE WHETHER IT WAS
ESTABLISHED WHETHER HE HAD
DRAFTED OR THAT WAS THE
ALLEGATION.
BUT HOW WOULD YOU DISTINGUISH
ROBERTS V. STATE?
>> WELL, I JUST THINK RODRIGUEZ
IS THE MORE RECENT CASE.
>> THE PROBLEM WITH THAT,
THOUGH, IS ON REMAND, THE CASE
WAS REASSIGN TODAY ANOTHER
JUDGE.
AND WHAT WE SAID WAS FROM THE
TIME THE COURT REMANDED THE
CASE, JUDGE CARNEY STEPPED ASIDE
AND JUDGE -- ISSUED ALL THE
COURT'S RULINGS INCLUDING
DENYING RELEASE ON THE
SENTENCING ORDER.
>> YES.
BUT, YOUR HONOR, REMEMBER WHAT
HE'S SAYING HERE.
HE'S SAYING IF JUDGE WIGGINS HAD
ANNOUNCED FROM THE BENCH I DID
NOT WRITE THIS ORDER, WE WOULD
HAVE MOVED MERRILY ALONG.
>> I'M ASKING YOU, THOUGH, HOW
DO YOU IN TERMS OF BOTH
RODRIGUEZ AND ROBERTS, IT LOOKS
TO ME THAT IF THERE IS A
DISPUTED ISSUE ABOUT THE
SENTENCING ORDER, AND HERE THE
STATE CONCEDED THE NEED FOR AN
EVIDENTIARY HEARING, THAT YOU
CAN'T HAVE THIS HYBRID
SITUATION.
YOU KNOW, I AGREE THIS IS A
FRUSTRATION IN TERMS OF IF THIS
IS THE CASE, BUT WE'VE GOT TO
PROTECT WHAT RECUSALS ARE ALL
ABOUT.
I DIDN'T KNOW THERE WAS SUCH A
THING AS A HYBRID RECUSAL THAT
COULD OCCUR.
SO, PLEASE, AGAIN TELL ME HOW
RODRIGUEZ REALLY SUPPORTS YOU
WHEN IN RODRIGUEZ JUDGE CARNEY
DID STEP ASIDE FOR THE REMAINDER
OF THE EVIDENTIARY HEARING?
>> OKAY, BUT IN ROBERTS I DON'T
THINK THAT YOU HELD A BIFURCATED
PROCEEDING IS IMPROPER.
I DON'T THINK IT CAME UP.
I DON'T THINK THAT'S THE DIRECT
HOLDING OF ROBERTS.
I CERTAINLY DID NOT FIND A CASE
WHERE THIS COURT HAD TO DIRECTLY
ADDRESS THE BIFURCATION ISSUE.
>> YOU THINK IT WOULD BE
DIFFERENT IF A SECOND MOTION TO
DISQUALIFY HAD BEEN FILED AFTER
THE EVIDENTIARY HEARING?
BECAUSE NOW WE'VE GOT A JUDGE
THAT'S BEEN CROSS EXAMINED, AND
NOW WE HAVE SOME CONCERN ABOUT
THE REST OF THE ISSUES, WOULD
THAT BE DIFFERENT?
>> YOUR HONOR, I DON'T SEE THIS
AS ANY DIFFERENT FROM A JUDGE
WHO WAS REVERSED ON APPEAL AND
THE CASE GOES BACK AND IT'S
TRIED RIGHT IN FRONT OF HIM.
WHAT HAPPENS THERE IS HIS
CONDUCT IS ATTACKED.
HE ADMITTED SOMETHING HE
SHOULDN'T OF OR SOMETHING LIKE
THAT.
AN APPELLATE COURT SAYS, YOU'RE
RIGHT, YOU SHOULDN'T HAVE DONE
THAT.
YOU GO TRY THAT CASE AGAIN.
>> BUT IN THOSE CASES YOU DON'T
HAVE THE JUDGE BEING A WITNESS
AND ON THE WITNESS STAND AND
BEING EXAMINED BY ONE OF THE
ATTORNEYS.
IT'S A LITTLE DIFFERENT.
>> I AGREE HE'S NOT A WITNESS,
BUT THE LEGAL ERROR PART OF
THIS, YOU KNOW, IN TERMS OF
THE --
>> WELL, JUDGES DON'T RECUSE FOR
LEGAL ERROR, THEY RECUSE FOR
OTHER REASONS.
>> RIGHT.
BUT HE'S TRYING TO MAKE BOTH.
YOU'RE RIGHT, THEY'RE NOT
RECUSED FOR LEGAL ERROR, BUT HIS
BEING A WITNESS, THAT DOES NOT
MATTER.
HE HAD HIS DAY IN COURT AS TO
JUDGE WIGGINS WITH A SECOND
JUDGE PRESIDING.
>> BUT YOU WOULDN'T CONCEDE THAT
IF THERE WAS A SERIOUS DISPUTED
ISSUE ABOUT WHETHER THERE WAS
COLLABORATION BETWEEN THE STATE
AND THE TRIAL JUDGE IN THIS
CASE, AND THAT MATTER WAS HEARD
AND THERE WAS VIGOROUS
CROSS-EXAMINATION OF THE TRIAL
JUDGE, WOULDN'T YOU CONCEDE THAT
ANY REASONABLE DEFENDANT WOULD
BE TROUBLED IF THAT TRIAL JUDGE
HAD BEEN MADE A WITNESS AND THEN
SEVERELY CROSS EXAMINED BY THE
DEFENDANT'S ATTORNEY, THAT THAT
TRIAL JUDGE IS NOW HEARING THE
REST OF THE ISSUES?
>> NO, I DON'T CONCEDE THAT.
I JUST DON'T SEE THIS AS A
REASONABLE GROUND.
YOU HAD YOUR DAY IN COURT IN
FRONT OF A NEUTRAL JUDGE.
HE TESTIFIED, THAT IS NO
DIFFERENT IN GOING UP ON AN
APPEAL.
THAT IS NO DIFFERENT.
>> SO YOU'RE REALLY SAYING A
JUDGE CAN BE A WITNESS IN A CASE
ON ONE ISSUE IN A CASE, AND THEN
HEAR THE REST OF IT NO MATTER
WHAT THAT ISSUE MAY HAVE BEEN,
THE JUDGE CAN THEN HEAR THIS
CASE?
>> BECAUSE IN THE STATUTE --
>> AND A DEFENDANT DOESN'T --
YOU DON'T BELIEVE THAT WHEN A
JUDGE IS A DEFENDANT OR A
WITNESS IN A CASE THAT A
DEFENDANT WOULD NOT HAVE A
REASONABLE FEAR THAT THE JUDGE
MAY NOT BE IMPARTIAL ON ALL THE
OTHER ISSUES THAT ARE PRESENTED
IN THE SAME CASE?
>> NO.
I THINK JUDGES CAN RISE ABOVE
THE FACT THAT THEY WERE, THAT
SOMEBODY SAID YOU WROTE THE
ORDER, AND I SAID, NO, I WROTE
THE ORDER MYSELF.
I DIDN'T HAVE THE PROSECUTOR DO
IT.
>> BUT THE ISSUE IS NOT WHETHER
THE JUDGE CAN -- I MEAN, REALLY
THATTHAT'S NOT THE STANDARD THAT A
JUDGE COULD RISE ABOVE IT.
WE WOULD HOPE THAT ALL JUDGES
COULD RISE ABOVE SOMETHING LIKE
THAT.
IT REALLY IS THE PERCEPTION OF A
JUSTICE, ISN'T THAT THE BASIS ON
THE RECUSAL RATHER THAN WE TRUST
OUR JUDGES?
>> OKAY, BUT I WOULD NOT
DISQUALIFY A CAPITAL CASE.
I THINK THIS IS A REASONABLE
BALANCE BASED ON A POLICY
ARGUMENT.
THESE JUDGES ARE UNIQUE.
REMEMBER, ONE OF THE OTHER
CLAIMS WAS RELATIVE CULPABILITY
OF THE JUDGE'S OIN FINDING --
OWN FINDING.
JUDGE WIGGINS KNOWS A GREAT DEAL
ABOUT THOSE TWO CASES.
IT WOULD BE AN IMMENSE BURDEN TO
TRANSFER TWO CAPITAL CASES
BECAUSE CHRISTMAS HAS TO GO
ALONG WITH STEIN BECAUSE YOU
NEED TO HAVE THEM --
>> WHY?
WAS THERE AN ALLEGATION ABOUT
THE STATE DOING THE CHRISTMAS
ORDER?
>> THAT WAS ONE OF THE THINGS WE
EXPLORED IN THIS ONE, YES.
AT THE HEARING THAT DID COME UP,
AT THE LITTLE EVIDENTIARY
HEARING.
>> BUT SUPPOSE JUDGE WIGGINS
DIED?
YOU WOULD HAVE TO HAVE THE CASE
HEARD BY ANOTHER JUDGE UNDER
THOSE CIRCUMSTANCES.
>> SURE.
BUT THE JUDGE HASN'T DIED.
HE IS A UNIQUELY VALUABLE TO US,
AND WE WOULD LIKE TO KEEP HIM,
AND THIS IS A NICE, REASONABLE
BALANCE.
HE HAS HIS DAY IN COURT, RIGHT?
WHICH IS MORE THAN HE SAYS, HE'D
BE HAPPY IF JUDGE WIGGINS
ANNOUNCED --
>> WE DON'T HAVE TO ACCEPT THAT
WHAT THE DEFENSE ATTORNEY SAYS.
I MEAN, WE'RE TALKING ABOUT
WHETHER OR NOT THERE IS EVEN
APPEARANCE HERE OF IMPARTIALITY
OR THE LACK THEREOF, IF A JUDGE
IS A WITNESS IN A CASE.
>> OKAY.
BUT I THINK THIS IS A REASONABLE
BALANCE AS A POLICY MATTER.
HE HAD HIS DAY IN COURT WITH
ANOTHER JUDGE HEARING THEM,
OKAY?
AND THEN WE HAVE A JUDGE WHO
KNOWS A LOT ABOUT THIS CASE, AND
WE ARE NOT IMPOSING AN IMMENSE
BURDEN, TRANSFERRING CAPITAL
CASES IS AN IMMENSE BURDEN.
>> BUT YOU CAN'T REALLY SAY THAT
A DEFENDANT -- MY CONCERN IS I
DON'T THINK THERE'S A REASONABLE
BASIS TO BELIEVE THAT THERE WAS
SOME COLLUSION OR WORKING WITH
THIS ORDER BETWEEN THE STATE.
I DON'T THINK THERE WAS A
REASONABLE BASIS FOR THAT.
BUT ASSUMING THERE WAS A
REASONABLE BASIS FOR THIS
DEFENDANT TO BELIEVE THAT THERE
WAS SOME COMMUNICATION BETWEEN
THE STATE AND THE DEFENDANT IN
THE PREPARATION OF THIS
SENTENCING ORDER, THAT ISSUE'S
RAISED, AND THAT TRIAL JUDGE IS
MADE A WITNESS, THAT THAT
DOESN'T THE EFFECT THE
NEUTRALITY OF THAT JUDGE?
>> NOT ON THE WITNESS PART, ON
THE EX PARTE, I WILL GIVE YOU
THAT.
IF THERE IS SOME EVIDENCE THAT
THE JUDGE IS TALKING TO THE
PROSECUTOR AND THE PROSECUTOR
ONLY, I CAN SEE WANTING TO
DISQUALIFY A JUDGE BASED ON HIS
EX PARTE COMMUNICATION.
>> BUT IF THE HEARING SAYS THERE
WAS NO EX PARTE COMMUNICATION,
THAT WOULD BE FINE.
HE COULD STILL GO ON AND THEY
ARE REST OF THE CASE?
>> WHICH IS EXACTLY WHAT
HAPPENED HERE.
YES.
>> DO YOU AGREE THAT THE JUDGE
HAD TO, QUOTE, PARTIALLY RECUSE
HIMSELF FOR THE PURPOSE OF THIS
CLAIM?
OR COULD THE JUDGE HAVE HEARD
HIMSELF ON THIS ISSUE?
>> HEARD HIMSELF?
SEE, THAT'S --
>> YEAH.
>> I'M MORE TROUBLED BY THAT
THAN I AM BY WHAT HAPPENED HERE,
THAT THE IDEA THAT THE JUDGE
JUST MAKES A FACTUAL FINDING
HIMSELF FROM THE BENCH.
THAT'S, IN EFFECT, JUDGING YOUR
OWN CREDIBILITY.
THAT STRIKES ME AS MUCH MORE
TROUBLESOME THAN WHAT WE DID
HERE.
SEEMS TO ME WE GAVE HIM DUE
PROCESS COMPARE TODAY THAT.
>> SO THE RULE OF LAW, THEN, IS
IF THERE WAS A DISPUTED ISSUE,
WHICH THERE WAS CONCEDED TO BE
ONE HERE ABOUT WHETHER THE JUDGE
DRAFTED HIS OWN SENTENCING
ORDER, THEN ANOTHER JUDGE MUST
HEAR THAT PART OF THE CLAIM.
AND THEN WHAT'S THE NEXT -- BUT
DOES NOT NEED TO RECUSE FOR THE
REMAINDER UNLESS WHAT?
>> UNLESS THERE IS AN ALLEGATION
OF EX PARTE.
I SEE THAT AS COMPLETELY
DIFFERENT BECAUSE --
>> ISN'T THAT WHAT FINDING THESE
ORDERS, I MEAN, THAT'S WHAT
HAPPENED IN THESE CASES.
THAT'S THE ESSENCE OF THEM, THAT
THE JUDGE IS GETTING THESE
ORDERS FROM THE STATE.
I MEAN, THIS IS WHAT IS THE
FOUNDATION OF THOSE KINDS OF
CASES.
>> OKAY.
BUT IF YOU'RE ARGUING QUESTION
NO, IN SOME OF THEM HE GETS AN
ORDER AND LITERALLY SIGNS THEM.
I'VE SEEN THEM DO IT BOTH WAYS.
BUT YOUR HONOR, AN EX PARTE DOES
RAISE THE FOLLOWING CONCERN,
THAT A JUDGE DID TALK TO ONE
PARTY AND ONE PARTY ONLY AND
DIDN'T GET THE OTHER SIDE.
SO ON THAT BASIS, YES, I DO SEE
THAT AS MORE PROBLEMATIC.
THE REASON YOU GET INTO EX
PARTE, I START THINKING
REASONABLE FEAR THAT YOU WERE
MORE CONCERNED ABOUT ONE PARTY,
DIDN'T EVEN GET MY INPUT INTO
THE ISSUE.
>> WHAT HAPPENED IN THIS CASE AS
FAR AS ANY ULTIMATE EXPLANATION
OF HOW AN UNSIGNED ORDER GOT
INTO THE PROSECUTOR'S FILE IN
THIS CASE?
>> THANK YOU FOR ASKING ME THAT
BECAUSE THAT'S MORE WHAT WAS
DISPUTED THAN WHETHER THEY WROTE
IT.
EVERYBODY COULD REMEMBER, THE
PROSECUTORS COULD REMEMBER, NO,
I DIDN'T WRITE THIS, BUT THEY
COULDN'T REALLY REMEMBER, AT
FIRST, COULDN'T REMEMBER HOW IT
GOT INTO -- WHY THERE WAS AN
UNSIGNED ORDER.
THE JUDGE AT THE BEGINNING OF
THIS HEARING CLEARED IT UP FOR
US, AND THEN JUDGE WIGGINS
TESTIFIED.
HE SAID IT WAS STANDARD PRACTICE
IN THAT CIRCUIT TO BRING UP COPY
BUT ONLY SIGN ONE AND SIGN THAT
IN OPEN COURT.
THAT DOES SEEM TO HAVE BEEN
STANDARD PRACTICE IN THIS.
>> BUT WAS THERE AN UNSIGNED
ORDER IN DEFENSE COUNSEL'S FILE?
>> THERE WAS -- NO.
>> WELL, THAT'S WHAT I'M
TRYING --
>> THERE WAS AN UNSIGNED
ORDER --
>> WHAT WAS THE ULTIMATE
EXPLANATION OF WHY THERE WAS
ONLY AN UNSIGNED COPY IN THE
PROSECUTOR'S FILE, BUT THERE WAS
NO UNSIGNED COPY IN THE DEFENSE
COUNSEL'S FILE?
>> THAT WAS EXPLORED AT THIS
LITTLE HEARING, AND BASICALLY WE
COULDN'T REALLY GET TO THE
BOTTOM OF THAT.
BUT IT DOES SEEM THAT THE, THAT
HE WAS GIVEN A COPY, THAT
DEFENSE COUNSEL WAS GIVEN A
COPY --
>> BUT DIDN'T MR. PATE SAY YOU
NORMALLY WOULD GET A COPY OF THE
ORDER FROM THE JUDGE'S JUDICIAL
ASSISTANT?
>> HE WOULD WALK UP THERE, YES.
BOTH PROSECUTORS TESTIFIED,
FIRST ONE TESTIFIED SAID I DON'T
KNOW HOW THE UNSIGNED ORDER, BUT
I DID NOT WRITE THIS.
>> DID DEFENSE COUNSEL TESTIFY
AT THIS BIFURCATED HEARING?
>> NO, DEFENSE COUNSEL, JEFF
MORROW, DID NOT TESTIFY.
HE WAS EXCUSEED, HE WAS NOT
CALLED.
THE TWO PROSECUTORS, JUDGE
WIGGINS, AND HIS JA, NINA HUBER,
AND THAT'S WHO TESTIFIED.
NO.
BUT, YOUR HONOR, JUST READING
BETWEEN THE LEANS WHEN WE GOT TO
THAT -- LINES WHEN WE GOT TO
THAT, THEY DIDN'T PUSH THAT
HARD, AND IT'S PRETTY MUCH THEY
JUST DIDN'T GET A COMPLETE FILE
OR THEY JUST COULDN'T FIND IT IN
THERE.
AND THEY DIDN'T KNOW WHEN THEY
HAD THE RECORDS AT FIRST THAT
THERE SEEMS TO HAVE BEEN A GAP
BETWEEN WHEN DEFENSE COUNSEL'S
FILES GOT OVER THERE AND WHEN
OPPOSING COUNSEL GOTS THEM.
THERE SEEMS TO HAVE BEEN SOME
GAP BETWEEN THAT.
SO IT MAY HAVE BEEN THERE
ORIGINALLY.
>> THANK YOU.
WITH OUR HELP, YOU'VE EXHAUSTED
YOUR TIME.
>> OKAY.
ASK YOU TO AFFIRM THE TRIAL
COURT'S DENIAL OF
POSTCONVICTION.
>> WE'LL GIVE YOU ONE MINUTE.
>> WE DO NOT BELIEVE, YOUR
HONOR, THAT THERE'S ANY CASE LAW
THAT SAYS A SHOOTER IS MORE
CULPABLE OR AN AGGRAVATOR IN ANY
KIND OF AUTOMATIC WAY.
I DON'T BELIEVE THAT'S THE CASE
AND I DON'T KNOW WHAT --
>> YOU'RE SAYING THERE'S NO CASE
LAW THAT SAYS THAT IT MIGHT BE
MORE AGGRAVATING IF SOMEBODY IS
THE ACTUAL SHOOTER?
>> WELL, I MEAN, IN A PARTICULAR
CASE THEY MIGHT FIND IT
AGGRAVATING, BUT I DON'T THINK
AS ANY MATTER OF PRINCIPLE OR
LAW THAT SAID THE SHOOTER IS
NECESSARILY MORE CULPABLE.
THERE'S NO LINE OF CASES WHERE
BEING THE SHOOTER MAKES YOU MORE
CULPABLE.
OBVIOUSLY, IN A CONTRACT KILLING
THAT WOULDN'T BE THE CASE, I
THINK.
>> WELL, THIS ISN'T A CONTRACT
KILLING.
>> THAT'S RIGHT, YOUR HONOR.
>> WHY WOULDN'T IT BE A RATIONAL
FACTOR?
>> IT IS A FACTOR.
I'M NOT SAYING IT'S NOT A
FACTOR.
>> WELL, IT'S A FACTOR, THOUGH,
THAT WEIGHS ONE WAY OR THE
OTHER.
THAT FACTOR IS MORE DAMAGING TO
YOUR CLIENT THAN IF HE WASN'T
THE SHOOTER, IS THAT CORRECT?
>> YES, YOUR HONOR, I BELIEVE
SO.
>> AND WITH THAT, YOU'VE
UTILIZED YOUR ADDITIONAL TIME AS
WELL.
>> THANK YOU.
>> THANK YOU SO MUCH.
THE COURT WILL TAKE ITS MORNING
RECESS