Richard Lynch v. State of Florida

SC06-2233 | SC07-1246

>> ALL RISE.
HEAR YE, HEAR YE, THE SUPREME
COURT OF FLORIDA IS NOW IN
SESSION.
ALL THOSE HAVING BUSINESS
BEFORE THIS COURT DRAW NYE.
GIVE ATTENTION AND YOU SHALL
BE.
GOD SAVE THE UNITED STATES,
GREAT STATE OF FLORIDA, AND
THIS HONORABLE COURT.
>> GOOD MORNING.
>> LADIES AND GENTLEMEN, THE
FLORIDA SUPREME COURT.
PLEASE BE SEATED.
>> GOOD MORNING.
FRIENDS, WELCOME TO THE FLORIDA
SUPREME COURT AND THE ORAL
ARGUMENT CALENDAR FOR FRIDAY,
APRIL 11th.
FIRST CASE ON OUR CALENDAR THIS
MORNING IS LYNCH VERSUS STATE OF
FLORIDA.
READY TO PROCEED?
>> THANK YOU.
GOOD MORNING.
MAY IT PLEASE THE COURT.
MARIE LUIS PARMER AND RICHARD
TUCKER ON BEHALF OF RICHARD
LYNCH.
ISSUE I WANT TO ADDRESS THE
CLAIM TWO OF THE BRIEF
INEFFECTIVE ASSISTANCE OF
COUNSEL IN PENALTY PHASE
PROCEEDINGS SPECIFICALLY
FOCUSSING ON JURY WAIVER AND
FAILURE TO INVESTIGATE AND
PRESENT MITIGATION.
IN LOOKING AT THIS CLAIM I THINK
THERE ARE THREE FACT THIS IS
COURT SHOULD KEEP IN MIND WHEN
ANALYZING THIS CLAIM.
FIRST, MR.^LYNCH WAIVED
SENTENCING JURY ON THE ADVICE
OF COUNSEL.
SECOND, TRIAL COUNSEL MADE THE
MOST MEAGER OF EFFORTS IN
INVESTIGATING MITIGATION IN
THIS CASE.
>> LET'S GO BACK TO THE FIRST.
WHAT PART DOES THE STRATEGY OF
COUNSEL, EVALUATION, THE
SEARCHING OF LOOKING AT WHAT
THIS TRIAL JUDGE HAD DONE THE
PAST, SHOULD THAT BE FACTORED
IN OUR DECISION MAKING OR IS
THAT TO BE IGNORED?
WHAT PART DOES THAT PLAY?
>> I THINK IN ANSWERING THAT
YOU HAVE TO LOOK AT WHAT THE
UNITED STATES SUPREME COURT HAS
SAID IN WIGGINS, WILLIAMS V.
TAYLOR AND --
>> I DON'T BELIEVE THEY HAVE
ADDRESSED THAT SPECIFIC ISSUE
IN THOSE CASE.
>> WELL WHAT THEY HAVE SAID IS
THAT, COUNSEL'S STRATEGY
DECISION IS ONLY REASONABLE TO
THE EXTENT IT'S BASED ON
REASONABLE INVESTIGATION.
AND --
>> I'M NOT ASKING ABOUT THE
INVESTIGATION AT THIS POINT.
IT IS, THE STRATEGIC DECISION,
INITIALLY.
AND THEN THE NEXT POINT IS WHEN
YOU'RE GETTING INTO THE
SUBSTANCE WHAT HE DID, DIDN'T
DO, WHAT HE SHOULD HAVE DONE.
I'M TALKING SPECIFICALLY ABOUT
THAT INITIAL DECISION-MAKING
PROCESS.
>> WELL, I THINK THAT,
ARGUABLY, THE STATE COULD ARGUE
THAT COUNSEL HAD SOME PRIOR
EXPERIENCE WITH THIS JUDGE, AND
THAT THEY FELT, OR GUESSED THAT
THIS JUDGE WOULD NOT IMPOSE
DEATH.
>> IS THAT AS STRONG AS IT IS?
IS THAT A FAIR STATEMENT
FACTUALLY WHAT WE'RE DEALING
WITH?
I DON'T PERCEIVE IT THAT WAY.
SO I NEED TO BE CORRECTED IF
I'M WRONG.
>> MY POSITION --
>> IT'S NOT A POSITION.
WHAT ARE THE FACT.
>> WHAT TRIAL COUNSEL SAID,
WAS, THAT THEY COULD NOT POINT
TO ANY ARTICABLE FACT WHY THEY
ADVISED LYNCH TO WAIVE THE
JURY.
WHAT THEY SAID WAS, HE WAS IN
FRONT OF JUDGE EATON HE THOUGHT
WOE PROBABLY GET LIFE.
>> WELL, THERE WAS ANOTHER PART
OF THEIR STRATEGY, THIS WAS A
TERRIBLE CRIME IN TERMS OF THE,
AND, AGAIN, ASSUMING THE GUILTY
PLEA IS APPROPRIATE, PLEADING
GUILTY, TO THE KILLING A THE
MOTHER AND A, A 13-YEAR-OLD?
>> A 13-YEAR-OLD THAT'S RIGHT.

>> AND FELT THAT THAT,
SITUATION, IN FRONT OF A JURY
WOULD BE SO EMOTIONAL, THAT
HERE IS JUDGE EATON AND THAT
THANK GOD THAT THE CHANCES OF
HIM MAKING A LIFE
RECOMMENDATION WERE, WERE
BETTER THAN BEFORE A JURY.
AND I'M HAVING, IN TERMS OF
THIS, THAT ISSUE, WHICH I
DIDN'T KNOW IT WASED AS A
SEPARATE ISSUE, THAT, THE, YOU
WOULD HAVE TO THAT THE WAIVER
OF THE JURY TRIAL IN THE
PENALTY PHASE WAS NOT KNOWING
OR VOLUNTARY.
ISN'T IT THE HILL VERSUS
LOCKHART TEST THAT WOULD APPLY
TO THE PENALTY PHASE AS WELL AS
THE GUILT PHASE?
>> WELL, I THINK THAT IS
SOMETHING THAT IS SUGGESTED IN
MY BRIEF.
I THINK THERE'S, I DON'T KNOW,
IN ALL CANDOR I AM NOT SURE
IT'S ABSOLUTELY CLEAR.
I WAS NOT ABLE TO FIND CASE LAW
THAT DEFINITELY APPLIES THE
HILL v. LOCKHART STANDARD TO
THE WAIVER.
>> I DON'T THINK WE'VE HAD
SOMEBODY ACTUALLY MAKE THAT
PRECISE ARGUMENT.
BUT I, I DON'T SEE, EVEN IF
YOU, ANALYZE IT UNDER A
DEFICIENCY, HOW, MAKING A
JUDGMENT, AND THEN, THE PERSON
DOING IT KNOWINGLY, KNOWING HE
HAS A RIGHT TO A JURY TRIAL, HE
WAIVES THAT RIGHT.
HOW IS THAT, AN INVOLUNTARY
WAIVER?
>> THE ARGUMENT IS THAT IT'S
INVOLUNTARY BECAUSE IT'S NOT
KNOWING, INTELLIGENT BECAUSE
HE DIDN'T KNOW WHAT THE
MITIGATION WAS BECAUSE THEIR
INVESTIGATION WAS DEFICIENT.
THERE WAS WEALTH OF MITIGATION
THAT WASN'T PRESENTED.
TRIAL COUNSEL CONCEDED AT
EVIDENTIARY HEARING HE DIDN'T
KNOW ABOUT THE BRAIN DAMAGE.
IF HE HAD KNOWN ABOUT THE BRAIN
DAMAGE HE WOULD HAVE ADVISES
MR.^LYNCH TO GO WITH SENTENCING
JURY BECAUSE IN HIS EXPERIENCE,
SENTENCING JURY, THAT IS THE
TYPE OF TESTIMONY THAT
SENTENCING JURIES CAN
UNDERSTAND AND, OR THAT NOT CAN
UNDERSTAND, BUT THAT, SEEMS TO
HAVE A GREAT EFFECT ON THEM.
>> WHAT WAS THE STRONGEST
CHARACTERIZATION OF BRAIN
DAMAGE AND ANY EFFECT ON THE
DEFENDANT THAT ULTIMATELY YOU
PRESENTED IN THE POSTCONVICTION
HEARING?
WHAT WAS THE STRONGEST
CHARACTERIZATION?
>> THE STRONGEST
CHARACTERIZATION WAS THAT
EVERY DEFENSE EXPERT SAID THAT
THE BRAIN DAMAGE, ALTHOUGH
CLINICALLY CALLED MILD,
ALTHOUGH CALLED MILD,
SCIENTIFIC TERM WOULD BE MILD,
WAS CLINICALLY SIGNIFICANT AND
THAT IT WOULD, THAT IT WOULD
SUBSTANTIALLY, THAT THEY
ABILITY TO CONFORM HIS CONDUCT
TO THE LAW WAS SUBSTANTIALLY
IMPAIRED.
ALL THREE NEUROPSYCHOLOGY GIFTS
NEUROLOGIST ALL ADDRESSED THAT.

IN PARTICULAR THE NEUROLOGIST
EXPLAINED WHAT HE CALLED THE
PERFECT STORM.
HE EXPLAINED THAT MR.^LYNCH HAS
HAD THIS BRAIN DAMAGE.
THAT IS, NO ONE HAS TESTED THE
BRAIN DAMAGE BECAUSE NONE OF
THE STATE, DR.^REESBAN WAS
DISCREDITED AND DR.^DANZIGER
DIDN'T ADDRESS THE BRAIN
DAMAGE BECAUSE HE WASN'T
QUALIFIED TO ASSESS THE
NEUROPSYCHOLOGICAL DATA.
>> THOUGHT THE FIRST MENTAL
HEALTH EXPERT THAT EXAMINED THE
DEFENDANT CAME UP WITH
SOMETHING LIKE THIS.
>> DR.^COX DID AND HE WAS NOT
CALLED AT TRIAL.
ONE OF THE BRINGINGEST BREAK
DOWN IN TRIAL COUNSEL IS THAT --
>> BUT A MINUTE AGO YOU THAT
THE DEFENSE COUNSEL DIDN'T KNOW
ABOUT ANY OF THAT.
>> HE SAID HE DIDN'T KNOW.
I THINK THAT'S, THAT'S THE, ONE
OF THE BIGGEST PROBLEMS.
DEFENSE COUNSEL GOT A REPORT ON
APRIL 1st OF 2000 FROM DR.^COX.
THAT SAID I THINK THIS MAN HAS
BRAIN DAMAGED AND I RECOMMEND
FURTHER NEUROPSYCHOLOGICAL
TESTING.
FOR WHATEVER REASON, COUNSEL
DIDN'T FOLLOW UP ON THAT.
>> WELL, I MEAN THE FACTS ARE
THEY WERE DISSATISFIED FOR SOME
REASON WITH THE REPORT OR
APPROACH OR SOMETHING ABOUT
THIS DR.^COX, CORRECT?
AND --
>> WHAT THEY SAID HIS REPORT
WAS AMATEURISH AND THEY DIDN'T
FEEL LIKE THEY HAD THE TIME.
>> THEY WERE DISSATISFIED AND
THEY HAD ANOTHER EXPERT,
EXCORRECT?
>> CORRECT.
>> THEY DID HAVE A
NEUROPSYCHOLOGY GIFT THAT WAS
INVOLVED.
>> RIGHT.
>> AND THAT INDIVIDUAL
TESTIFIED IN PROCEEDINGS.
>> TESTIFIED AT TRIAL AND POST
CONVICTION AND AT TRIAL SHE
SAID HE DIDN'T HAVE BRAIN
DAMAGE.
>> OKAY.
>> HOW ABOUT CONNECTING THIS UP
THOUGH TO, TO YOUR QUESTIONING
COUNSEL'S ADVICE TO THE CLIENT?
THAT THEY SHOULD GO WITH A
WAIVER OF THE JURY.
IN OTHER WORDS, THAT'S WHAT
YOU'RE SAYING ARE YOU NOT?
YOU'RE SAYING IF COUNSEL HAD
GONE FURTHER, NOW, HE DID, HOLD
ON JUST A MINUTE.
>> I'M SORRY, APOLOGIZE.
>> BECAUSE HE DID CONSULT WITH
TWO MENTAL HEALTH EXPERTS IS
THAT CORRECT?
>> HE DID.
>> I REALIZE THEY HAD A LITTLE
DIFFERENT VERSIONS BUT, TELL US
WHAT IT IS THAT IS SO
COMPELLING NOW BUT THE
DISCOVERY OF OTHER MENTAL
HEALTH EXPERTS EVIDENCE AND
OPINIONS THAT YOU FEEL JUST
WOULD HAVE ABSOLUTELY, ANY
REASONABLE ATTORNEY THEN WOULD
HAVE SAID TO THEIR CLIENT, NOW
DESPITE THE RECORD OF THIS
JUDGE, AND MY STRONG FEELING
ABOUT THIS, NOW I WANT TO YOU
GO BEFORE A JURY?
IN OTHER WORDS, OKAY, WHAT IS
IT THAT IS SO COMPELLING?
>> I THINK ONE, THAT'S WHAT
TRIAL COUNSEL TESTIFIED TO.
NUMBER TWO, DR.^OLANDER --
>> WAIT A MINUTE.
TRIAL COUNSEL TESTIFIED IF HE
HAD HAD THIS MITIGATION HE
WOULD HAVE GONE BEFORE A JURY?
>> YES.
>> TELL ME WHAT HIS TESTIMONY
WAS IN THAT REGARD.
>> WHAT HE SAID IF HE HAD KNOWN
OF THE BRAIN DAMAGE, BECAUSE
BRAIN DAMAGE IS SUCH A WEIGHTY
MITIGATOR AND IT'S TYPE OF
EVIDENCE THAT IS SOMETHING YOU
CAN PUT FORWARD TO A JURY AND
THEY'RE MORE LIKELY TO ACCEPT,
THAT HE WOULD IN FACT HAVE
ADVISED HIS, ADVISED MR.^LYNCH
NOT TO WAIVE THE JURY.
IN ADDITION, DR.^OLANDER WHO
TESTIFIED AT TRIAL AND
POST-CONVICTION, SAID IF SHE
HAD KNOWN OF THE BRAIN DAMAGE,
IF SHE HAD TESTED FOR THE BRAIN
DAMAGE IT WOULD HAVE OPENED UP,
IT WOULD HAVE OPENED UP A WORLD
OF MITIGATION SHE WOULD HAVE
PROVIDED TO THE COURT AND IT
WOULD AFFECT HIS PSYCHOSIS IN
AN EXPONENTIAL MANNER.
>> WASN'T THAT AN AREA HER
RESPONSIBILITY IN DOING A
MENTALITY HEALTH EXAMINATION?
YOU'RE TALKING ABOUT THIS IS A
NEUROPSYCHOLOGIST?
>> WELL --
>> IS THIS A
NEUROPSYCHOLOGIST?
>> SHE IS A NEUROPSYCHOLOGIST.
>> SHE SAID IF SHE HAD KNOWN?
>> YES, HER TESTIMONY WAS THAT
TRIAL COUNSEL TOLD HER THAT
THEY HAD RETAINED DR.^COX AND
THEY WERE DISSATISFIED WITH
DR.^COX.
SHE KNEW DR.^COX TO BE A VERY
REPUTABLE NEUROPSYCHOLOGIST.
SO SHE ASSUMED DR.^COX DID NOT
FIND BRAIN DAMAGE SO SHE DID
NOT TEST FOR IT.
>> DOESN'T THAT REALLY, DOESN'T
THAT REALLY JUST SHOW HER
NEGLECT.
THAT IS, THAT, IF WE'RE TALKING
ABOUT SOMEBODY THAT SAYS BOY,
IF I HAD KNOWN ABOUT BRAIN
DAMAGE BECAUSE SHE DIDN'T
TESTIFY THAT SHE TALKED TO
DR.^COX, RIGHT?
>> NO.
SHE DIDN'T TALK TO DR.^COX BUT
YOU THINK IT SHOWS COUNSEL'S
NEGLECT BECAUSE, TRIAL COUNSEL
KNEW OR SHOULD HAVE KNOWN THAT
DR.^COX SAID THAT MR.^LYNCH HAD
BRAIN DAMAGE.
SO WHEN THEY RECEIVED DR.^ --
>> SAY OR SHOULD HAVE KNOWN.
DID KNOW?
>> WELL, IT'S REALLY NOT CLEAR
THAT HE KNEW.
IT'S DEFINITELY CLEAR THAT HE
HAD THE REPORT, DR.^COX'S
REPORT IN HIS FILE.
IN THAT REPORT, IT SAYS THAT
MR.^LYNCH HAS COGNITIVE
DISORDER NOS AND THAT REPORT IS
AN EXHIBIT IN EVIDENCE.
WHICH I URGE THE COURT TO
LOOK AT.
>> DID HE PROVIDE
THAT REPORT TO THE SECOND
EXPERT?
>> NO.
THAT REPORT WAS IN THE TRIAL.
WAS FAXED TO TRIAL COUNSEL.
BUT THE POINT I WANTED TO MAKE
IN RESPONSE TO JUSTICE
ANSTEAD'S QUESTION IS THAT,
UPON RECEIVING.
DR.^OLANDER'S REPORT, TRIAL
COUNSEL HAD AN OBLIGATION TO
SEE WHETHER OR NOT DR.^OLANDER
DID NEUROPSYCHOLOGIAL TESTING
OR TEST FOR BRAIN DAMAGE.
DR.^NORGART PREVAILING
STANDARDS AND PREVAILING NORMS.
THEY WERE VERY AWARE OF BRAIN
DAMAGE AS A DEFENSE MITIGATOR.
>> LET'S GO BACK TO THIS.
I AGREE IT'S HARD TO UNDERSTAND
HOW THE TRIAL COUNSEL WOULDN'T
HAVE TOLD THE NEW EXPERT ABOUT
THE BRAIN DAMAGE.
BUT, IN TERMS OF PREJUDICE,
BECAUSE THAT'S WITH WE'RE
REALLY, I THINK THE THRUST OF
THE QUESTIONS FROM JUSTICE
ANSTEAD HAVE BEEN ABOUT
PREJUDICE, IN TERMS OF
UNDERMINING CONFIDENCE IN THE
RESULT, FIRST OF ALL IF WE
ASSUME WE HAVE A JUDGE TRIAL
THAT IS VALID, PENALTY PHASE,
THE JUDGE HIMSELF SAYS, THAT
HE'S LOOKED AT THIS WHOLE
THING, CAREFULLY CONSIDERED THE
BRAIN DAMAGE ISSUE, REVIEWED
THE TRANSCRIPTS AND, CONCLUDE
THAT THE MITIGATING
CIRCUMSTANCES WERE PREPARE
RATLY WEIGHED AFTER THE PENALTY
PHASE HEARING AND DESERVES NO
FURTHER WEIGHT.
ASSUME IF WE AGREE WITH THAT,
THAT IS, THE MITIGATORS WERE
FOUND AND, APPROPRIATELY
WEIGHED, WHERE IS THE
PREJUDICE, ESPECIALLY -- I
UNDERSTAND THE BRAIN DAMAGE
MAKES YOU THINK, SOMETHING BUT,
HERE, IN TERMS OF THE CRIME,
THIS WAS NOT A SPUR OF THE
MOMENT CRIME.
IT WAS A, A WELL-THOUGHT OUT
CRIME THAT I DON'T SEE WHERE
THE BRAIN DAMAGE FITS IN TO
SAYING, THAT IT MITIGATES THIS
CRIME CONSIDERING THE
AGGRAVATORS.
I THINK THAT'S WHAT YOU REALLY
HAVE TO CONVINCE US OF, IN A
VERY COMPELLING WAY TO, BECAUSE
I THINK THAT, WOULD BE YOUR
STRONGEST POINT.
BUT I'M CONCERNED THAT I'M JUST
NOT SURE I SEE PREJUDICE.
>> WELL, FIRST OFF, THE BRAIN
DAMAGE IS NOT THE ONLY
MITIGATION THAT WASN'T
PRESENTED.
THE COURT HAS TO LOOK AT ALL
THE MITIGATION THAT WASN'T
PRESENTED BUT LOOKING
SPECIFICALLY AT THE BRAIN
DAMAGE, TO ANSWER YOUR
QUESTION, THE BRAIN DAMAGE
WOULD LESSEN THE, ONE OF THE
AGGRAVATORS THAT WAS FOUND WAS
CCP THE BRAIN DAMAGE WOULD
LESSEN THE CCP.
>> YOU CAN SAY IT COULD BUT
HOW?
IN OTHER WORDS YOU STILL HAVE,
YOU'VE GOT THE LETTER HE WRITES
TO HIS WIFE.
YOU HAVE HIM COMING WITH A BAG
FULL OF GUNS.
YOU HAVE HIM MAKING A CAREFUL
PLAN TO KILL THIS WOMAN, NOT --
>> NOT THE DAUGHTER.
>> NOT THE DAUGHER, BUT
EVERYBODY, CCP WASN'T FOUND AS
IT RELATES TO THE DAUGHTER.
>> IT WOULD EXPLAIN THE BRAIN
DAMAGE, WHAT DR.^MCRANY REALLY
SUMS IT UP.
HE CALLED IT THE PERFECT STORM.
THIS WAS A MAN WHO WAS BARELY
GETTING BY.
HE HAD, HE WAS JUST BARELY
HOLDING IT TOGETHER.
WHEN HE WAS CONFRONTED WITH,
ANNIVERSARY --
>> WOULD YOU EXPLAIN BARELY
HOLDING IT TOGETHER.
SEEMS LIKE HE WAS HAVING A
PERFECTLY NORMAL LIFE.
HE WORKED.
HE HAD A WIFE.
HE WAS SEEING SOMEONE ELSE ON
THE SIDE AND KEPT ALL OF THAT
FROM HER AND SO, WHAT WAS THIS
BARELY KEEPING IT TOGETHER?
>> HE DID NOT WORK.
>> HE WAS STAY AT HOME DAD?
>> HE WAS STAY AT HOME DAD
AND --
>> WAS THERE A DISABILITY?
>> THERE WAS NO OFFICIAL
FINDING OF A DISABILITY BUT
CERTAINLY HE HAD A MENTAL
DISABILITY.
I THINK, IF YOU LOOK AT LAY
WITNESS TESTIMONY IN
CONJUNCTION WITH THE EXPERT
TESTIMONY, THIS IS A MAN WHO
HAD LIVED WITH HIS MOTHER WELL
INTO HIS 30s.
HE, DID NOT HAVE FRIENDS.
HE DID NOT HAVE A GIRLFRIEND
UNTIL HE MARRIED HIS WIFE.
HE HAD HAD A JOB AS BUS.
WHEN HE CAME TO FLORIDA HE
COULD NEVER REALLY MAINTAIN A
JOB, WHICH IS CONSISTENT WITH
MENTAL ILLNESS.
HE HAD SPENT OVER $6,000 IN A
MONTH ON PROVIDING A CAR AND AN
APARTMENT FOR THIS GIRLFRIEND.
AND THE GIRLFRIEND HAD
REJECTED HIM ON ANNIVERSARY
DATE OF THE DEATH OF HIS
MOTHER.
HIS WIFE CERTAINLY WAS GOING TO
LEAVE HIM SOON AS SHE FOUND OUT
WHAT HE HAD DONE.
HE WAS GOING TO LOSE HIS
CHILDREN AND HE WAS IN DEBT.
AND THESE MENTAL STRESSORS
CREATED THE PERFECT STORM FOR A
MAN WHO WAS PSYCHOTIC SEVERELY
PSYCHOTIC.
ALL THE TESTING SHOWS THAT THIS
MAN IS SEVERELY PSYCHOTIC.
ONE OF THE MOST SERIOUS MENTALLY
ILL OF INMATES AND --
>> WAS THAT REFLECTED IN HIS
DAILY LIFE BEFORE THIS
HAPPENED?
>> WELL --
>> IS THERE ANY EVIDENCE OF ALL
OF THAT?
YOU HAVE SCHOOL RECORDS.
>> HE HAD DELUSIONAL BELIEF HE
HAD LONGSTANDING AFFAIR WITH A
WOMAN WHICH WAS DISPROVED AT
THE POST-CONVICTION HEARING.
HE HAD WAS JUST SORT OF A GEEKY
WEIRDO, I SUPPOSE A LAY TERM TO
DESCRIBE HIM.
BUT THAT IS WHAT EXPERTS ALL
SAY.
>> THAT DOESN'T MAKE SOMEBODY
PSYCHOTIC THOUGH.
DON'T YOU NEED A LITTLE MORE
THAN THAT?
>> DELUSIONAL BELIEF WAS
EVIDENCE OF --
>> HOW MANY OF THE MENTAL
HEALTH EXPERTS AT
POST-CONVICTION, TESTIFIED THAT
HE WAS SEVERELY PSYCHOTIC?
>> DR.^COX'S MMPI.
>> HOW MANY EXPERTS TESTIFIED?
ABOUT SEVEN WEREN'T THERE?
>> THEY ALL SAID HE WAS
PSYCHOTIC.
ALL THE DEFENSE EXPERTS WERE IN
AGREEMENT THAT HE WAS PSYCHOTIC
AND BRAIN-DAMAGED.
NONE OF THE EXPERTS SAID HE WASN'T
PSYCHOTIC.
>> HOW MANY SAID HE WAS
SEVERELY?
>> DR.^COX'S MMPI SAID IT
SHOWED HE WAS SEVERELY
PSYCHOTIC.
DR.^OLANDER SAID HE WAS
SEVERELY PSYCHOTIC AT THE TIME
AND LINKED ALL THOSE FACTS TO
HIS BELIEF AT TIME OF THE
CRIME.
>> SHE TESTIFIED AT TRIAL.
>> WERE FINDINGS NOT STATUTORY
BUT FINDINGS OF MEANT AT THAT
TIME MITIGATION WITH REGARD TO
THOSE BUT THEY DIDN'T SATISFY
THE STATUTORY ELEMENTS.
>> NOT FINDING OF PSYCHOTIC.
REJECTED THAT, BECAUSE
DR.^OLANDER WAS OUT ON A LIMB
ON HER OWN.
SHE DIDN'T HAVE ANY SUPPORT.
I SEEN I'VE GONE INTO MY
REBUTTAL TIME.
I LIKE TO RESERVE FOR REBUTTAL.
>> CERTAINLY.
>> MAY IT PLEASE THE COURT.
MY NAME IS BARBARA DAVIS.
I REPRESENT THE STATE OF
FLORIDA AS FAR AS WAIVING THE
JURY I WOULD DIRECT THE COURT,
ATTENTION TO PAGES 2045 TO 2047
OF JUDGE EATON'S WHEREIN HE
SAID, THERE IS NOTHING IN THE
RECORD TO SHOW THAT HE WOULD
NOT HAVE WAIVED THE JURY HAD HE
BEEN GIVEN ANY FURTHER
INFORMATION.
>> YOUR OPPONENT JUST SAID THAT
DEFENSE ATTORNEY SAID THAT HE,
IF HE HAD HAD THIS INFORMATION
ABOUT THE BRAIN PROBLEMS, THAT
HE WOULD NOT HAVE RECOMMENDED
TO HIS CLIENT THAT HE WAIVE A
JURY BECAUSE THIS IS THE KIND
OF INFORMATION THAT JURIES CAN
UNDERSTAND AND MAYBE BE
SYMPATHETIC ABOUT.
SO, IS THAT, FINDING, IN
KEEPING WITH THE EVIDENCE THAT
WAS PRESENTED?
>> MR.^FIGGATT ON PAGE 81 OF
THE EVIDENTIARY HEARING SAID,
IF I HAD EVIDENCE OF BRAIN
DAMAGE I MIGHT HAVE CONSIDERED
SELECTING A JURY, IF I HAD,
IRONCLAD EVIDENCE OF BRAIN
DAMAGE.
IT MIGHT HAVE AFFECTED MY
RECOMMENDATION.
PAGE E-84.
HE ALSO ADMITTED --
>> ISSUE OF, IF THE DEFENSE
ATTORNEYS HAD THIS REPORT FROM
DR.^COX, WHICH SAYS THAT THIS
MAN HAS SOME KIND OF BRAIN
IMPAIRMENT, AND THAT FURTHER
TESTING SHOULD BE DONE TO BEAR
THIS ALL OUT, WHY WASN'T THAT
IN FACT DONE?
>> IT WAS.
DR.^COX SAID THAT THERE'S A
COGNITIVE DYSFUNCTION AND WOULD
RECOMMEND FURTHER
NEUROPSYCHOLOGICAL TESTING.
DEFENSE COUNSEL BOTH TESTIFIED
THEY HIRED DR.^OLANDER BECAUSE
SHE IS A NEUROPSYCHOLOGIST.
SHE TESTIFIED AT THE PENALTY
FACE, I AM A
NEUROPSYCHOLOGIST.
SHE GAVE THEM A REPORT.
THEY DID EVERYTHING THEY COULD.
>> WHY IN THE WORLD DID THE
LAWYER NOT PROVIDE DR.^COX'S
REPORT TO HER?
>> THEY TESTIFIED THEY BOTH
TESTIFIED THEY DID KNOT WANT TO
SLANT DR.^OLANDER'S DECISION.
THEY DID NOT WANT TO BIAS HER
IN ANY WAY BECAUSE DR.^COX HAD
A CERTAIN HISTORY.
HE HAD A CERTAIN BENT.
HE FOUND HIM ANTISOCIAL.
>> SO THEY TESTIFIED THEY
INTENTIONALLY, KEPT THAT REPORT
AWAY.
>> YES.
>> FROM DR.^OLANDER.
>> YES.
>> WOULD YOU GO INTO THAT LAST
STATEMENT THAT DR.^COX WAS
DIRECTED TOWARDS AN ANTISOCIAL?
>> DR.^COX HAD SOME INDICATIONS
OF ANTISOCIAL PERSONALITY
TRAITS.
>> FOR THIS DEFENDANT?
>> AND THE PARANOID PERSONALITY
TRAITS WHICH THEY DID NOT WANT,
THEY WERE EXPERT SHOPPING.
>> BUT I CAN UNDERSTAND, NOT
GIVING THE REPORT BECAUSE THEN
THE REPORT WOULD BECOME
DISCOVERABLE.
SO I CAN UNDERSTAND THAT.
BUT, I AM TRYING TO UNDERSTAND
THAT YOU HAVE AN EXPERT, AGAIN,
THEY HAVE ALREADY DECIDED, THIS
GUY IS, HE'S GUILTY.
ADMITTED, CAUGHT WITH
EVERYTHING, THIS IS CLEARLY THE
ONLY THING YOU CAN DO IN THIS
CASE IS SAFE THIS MAN FROM
DEATH PENALTY.
AND, HE CONCLUDED, DR.^COX
CONCLUDED, HE SUFFERED FROM A
TYPE OF BRAIN IMPAIRMENT AND,
RECOMMENDED FURTHER
NEUROPSYCHOLOGICAL TESTING.
HOW IN THE WOULD SOMEBODY WHOSE
ONLY JOB IS TO SAVE THE PERSON
FROM THE DEATH PENALTY NOT TELL
THE NEXT EXPERT, I'D LIKE YOU
TO DO FURTHER
NEUROPSYCHOLOGICAL TESTING?
THAT'S KIND OF LIKE PENALTY
PHASE 101 FOR SAVING SOMEBODY
FROM THE DEATH PENALTY.
>> REMEMBER, DR.^OLANDER
TESTIFIED AT THE PENALTY PHASE
THERE WERE NO SIGNS OF BRAIN
DAMAGE.
THEY HIRED HER AS A
NEUROPSYCHOLOGIST.
THEY WERE ALLOWED TO RELY ON
WELL-KNOWN EXPERT IN HER FIELD.
>> THAT IS THE NORMAL CASE, YOU
RELY, IF YOU HAVE AN EXPERT YOU
GET A DIFFERENT EXPERT.
BUT NOT WHEN YOUR KNOWLEDGE IS
ALREADY COMMUNICATED BY AN
EXPERT.
THAT, TO ME THAT'S DIFFERENT.
>> OKAY.
LET'S LOOK AT DR.^DANZIGER.
HE TESTIFIED AT THE EVIDENTIARY
HEARING, THERE ARE NO SIGNS OF
BRAIN DAMAGE.
SO, IS THE, STATE'S, ARE YOU
SUPPOSED TO TAINT HIM BY SAYING
OKAY, DR.^DANZIGGER, WE HE HAS
BRAIN DAMAGE, GO IN AND FIND
IT? NO YOU, REMEMBER SHE GAVE
THEM SCHIZOAFFECTIVE
DISORDER HE IS SCHIZOPHRENIC
WITH A MOOD DISORDER.
HE IS PSYCHOTIC.
>> WITH ALL THIS BRAIN DAMAGE
INFORMATION, I DON'T SEE THE
DOWNSIDE OF DEFENSE ATTORNEYS
HAVING SAID TO THE SECOND
EXPERT, LOOK, DR.^COX SAYS THIS
MAN HAS SOME BRAIN IMPAIRMENT.
WOULD YOU FOLLOW UP ON THAT
BRAIN IMPAIRMENT AS A PART OF
YOUR NEUROPSYCHOLOGICAL
EXAMINATION?
THAT WAS A STRATEGIC DECISION
NOT TO GIVE HER DOCTOR COX'S
REPORT BECAUSE THEY --
>> WE UNDERSTAND NOT GIVING THE
REPORT.
BUT JUST GIVING THE INFORMATION
BIT AND TELLING HER TO GO FROM
THERE?
>> THEY BOTH TESTIFIED THAT'S
WHY WE HIRED A
NEUROPSYCHOLOGIST.
THEY DIDN'T LIKE DR.^COX'S
REPORT BECAUSE IT WAS
DISCONNECTED TO THE FACT THEY
WANTED A NEUROPSYCHOLOGIST TO
CONNECT IT TO THE FACTS.
IF SHE TOLD HIM NO BRAIN DAMAGE
AND TESTIFIES NO BRAIN DAMAGE,
WHAT ARE YOU SUPPOSED TO DO?
YOU'RE A LIAR, DR.^COX SAYS
THERE IS BRAIN DAMAGE.
>> LET'S GO ONE STEP.
RATHER THAN DIG YOUR HEELS ON
THIS ISSUE.
STEP OVER TO THE PREJUDICE
ISSUE AND HOW DID THIS IMPACT
THE CASE, THE CONDUCT AND WHAT
WAS REFLECTED LET'S MAKE AN
ASSUMPTION IF YOU CAN, WIPE IT
CLEAR THE ATTORNEY ARGUEMENT
THAT WE REALLY JUST NEED TO
FOCUS ON THE PREJUDICE ASPECT.
WHAT, HOW DID BRAIN DAMAGE
FIGURE INTO THIS WHOLE
SCENARIO?
>> JUDGE EATON HAD FOUND THAT,
BECAUSE, DR.^OLANDER HAD
TESTIFIED ABOUT THE
SCHIZOAFFECTIVE DISORDER AND,
DOCTOR REIBSAME SAID THERE WERE
PERSONALITY DISORDERS.
HE HAD FOUND EMOTIONAL
DISTURBANCE AND IMPAIRED BEHAVIOR.
HE GAVE BOTH OF THOSE MODERATE.
THEY DID NOT RISE TO THE LEVEL
OF STATUTORY MITIGATION BUT HE
GAVE THEM MODERATE WEIGHT AS
NONSTATUTORY MITIGATION.
IN HIS ORDER, THIS IS 2051 TO
2054 HE WENT THROUGH EACH
EXPERT'S TESTIMONY.
EXPERTS DIFFER IN THEIR
TESTIMONY.
DR.^WU SAID THERE IS FORENSIC
EVIDENCE OF BRAIN DAMAGE.
DR.^HOLDER SAID THERE ISN'T.
THESE PEOPLE SAY THERE IS
EVIDENCE OF BRAIN DAMAGE TO THE
MMPI.
DOCTOR DANZIGER SAID I LOOKED AT
HIM AND INTERVIEWED HIM. I DON'T SEE
BRAIN DAMAGE.
I SEE OTHER THINGS.
PUTTING THIS ALL TOGETHER AND
LOOKING AT THAT JUDGE EATON
FOUND THAT THE MILD EVIDENCE OF
BRAIN DAMAGE WOULD NOT HAVE
CHANGED THE WEIGHT HE GAVE TO
EXTREME EMOTIONAL, THE
EMOTIONAL DISTURBANCE OR THE
SUBSTANTIAL IMPAIRED.
>> SO THE BOTTOM LINE THAT
WE'RE TALKING ABOUT IS, THESE
MITIGATION FACTORS WERE FOUND,
NOT AS STATUTORY BUT AS
MITIGATION?
>> YES, SIR.
>> AND THERE IS NO EVIDENCE IN
THE, OR THE EVIDENCE AT THE
EVIDENTIARY HEARING WOULD NOT
ELEVATE THESE INTO THE LEVEL OF
STATUTORY MITIGATION OR, I MEAN
SEEMS YOU'RE OPPOSING COUNSEL
IS ASSERTING THAT THIS
CONSISTENT, CONSISTENT, NOT,
FRAGMENTED BUT CONSISTENT, ALL
THE EXPERTS AT THE EVIDENTIARY
HEARING, HERE, WOULD HAVE
PLACED THE NATURE OF THAT
MENTAL ILLNESS TO THE LEVEL
THAT IT WOULD HAVE REQUIRED A
FINDING OF STATUTORY
MITIGATION?
>> NO, SIR.
AND THAT'S NOT WHAT JUDGE EATON
FOUND AT ALL.
>> I KNOW HE DIDN'T FIND THAT.
THAT'S THE ISSUE WE ARE TALKING
ABOUT, ARE WE NOT?
DOES THIS ELEVATE -- THERE WAS
SOME DISCUSSION ABOUT THE
MENTAL ILLNESS AND THERE WAS
DISCUSSION OF QUALITY AND TO
UNDERMINE OUR CONFIDENCE AND
WHAT OCCURRED HERE.
>> IT DOESN'T.
WE HAD EIGHT MENTAL HEALTH
EXPERTS.
THEY EACH HAD SOMETHING
DIFFERENT TO SAY WE ALL AGREE,
PSYCHOLOGISTS AND PSYCHIATRISTS
MAY ALL FIND DIFFERENT THINGS.
COMMON DEFENSE AMONG THE
DEFENSE WAS PSYCHOTIC ILLNESS
WHICH IS SCHIZOAFFECTIVE
DISORDER WHICH DR.^OLANDER
ORIGINALLY FOUND AND SHE STUCK
WITH THAT DIAGNOSIS.
>> YOU TALKED ABOUT EIGHT
EXPERTS.
IN THE ORIGINAL PENALTY PHASE,
JUST, IT WAS DR.^OLANDER.
>> YES.
>> OR WAS THAT THE ONLY MENTAL
HEALTH EXPERT?
>> SHE WAS THE ONLY PENALTY
PHASE WITNESS BECAUSE THEY MADE
A STRATEGIC DECISION --
>> I UNDERSTAND.
AND, REIBSAME WAS FOR
THE STATE?
>> YES.
>> IN THE EVIDENTIARY HEARING,
THE EIGHT, THE DEFENDANT CALLED
EIGHT EXPERTS OR HOW MANY
EXPERTS.
>> THEY HAD FIVE.
THEY HAD THREE.
>> OKAY.
NOW MY CONCERN ABOUT THIS IS
YOU'VE GOT, A, YOU'VE GOT A
PICTURE OF SOMEBODY, AGAIN THIS
IS THE QUESTION OF THE PICTURE,
WE REALLY HAVEN'T FOCUSED HOW
WOULD THE PICTURE HAVE CHANGED,
ABOUT WHETHER THIS WAS A PERSON
WHO HAD NO SIGNIFICANT HISTORY
OF PRIOR CRIMINAL ACTIVITY,
WHICH IS, SIGNIFICANT.
HERE IS A PERSON THAT HAS,
WHETHER HE IS MENTAL ILL OR
BRAIN-DAMAGED AND HOW OLD IS HE
AT THE TIME?
>> 47.
>> 47?
>> 47.
>> HE LIVED HIS LIFE UP TO AGE
47 WITHOUT HAVING COMMITTED ANY
SERIOUS CRIMES, CORRECT?
>> YES.
>> HE LIVED WITH HIS MOTHER
INTO HIS 30s?
>> YES.
>> LIVED IN THE SAME BEDROOM AS
HIS MOTHER?
>> NOT PICTURES OF THE HOUSE
WERE ADMITTED THE MOTHER HAD,
THEY LIVED IN A FLAT IN OVER A
BUSINESS.
AND --
>> WHAT WAS THE TESTIMONY
THOUGH THAT THE JUDGE EATON
HEARD IN THE ORIGINAL PENALTY
PHASE AND THEN THE EVIDENTIARY
HEARING ABOUT THIS RELATION --
IS SOMETHING THAT SEEMED TO BE
MAYBE NOT THE MOST NORMAL
RELATIONSHIP WITH HIS MOTHER?
>> KNEW ALL ABOUT IT.
DR.^OLANDER TESTIFIED ABOUT THE
LIVING IN ONE ROOM, WHICHLY
WASN'T ONE BEDROOM.
HE HAD, KIND OF A CUTOUT IN THE
HALL WHICH WAS MORE OF A
CLOSET.
MONEY WAS TIGHT.
THEY LIVED IN NEW YORK.
SHE HAD A SEPARATE BEDROOM HE
LIVED IN THE SAME FLAT.
>> NO IMPLICATION AT EITHER THE
FIRST OR SECOND, THE OR THE
PENALTY PHASE THERE WAS
ANYTHING INAPPROPRIATE ABOUT --
>> ABSOLUTELY NOT, NO.
>> HE DIDN'T LIVE ON HIS OWN
UNTIL HE WAS HOW OLD?
>> WHEN HE GOT MARRIED.
>> HOW HOLD WAS THAT?
>> HE WOULD HAVE BEEN, 36 OR
37.
HE GOT MARRIED IN 1988.
>> SO HE LIVED WITH HIS MOTHER
UNTIL HE WAS, 36 OR 37?
>> BECAUSE HIS FATHER HAD DIED
WHEN HE WAS YOUNGER.
>> I'M JUST TRYING TO GET A
PICTURE OF SOMEBODY WHETHER
WE'RE DEALING WITH TRUE
MENTALLY ILL INDIVIDUAL OF
WHICH THERE ARE MANY IN THIS
COUNTRY, OR SOMETHING THAT NOW
COMES UP AFTER THE FACT AND
WE'RE TRYING TO SAY, YOU KNOW,
NOW WE'RE PUTTING ALL THESE
DIAGNOSIS ON THESE PEOPLE.
SO CAN YOU GIVE ME THE BEST
EVIDENCE IN FAVOR OF THE STATE,
TO SHOW THAT REALLY UP UNTIL
THIS TIME, HE REALLY LIVED A
NORMAL LIFE AND THEN, SOMETHING
SNAPPED BECAUSE, HE WAS IN A
JEALOUS RAGE AND THAT'S WHY
THIS HAPPENED BUT THERE WAS
CAREFUL PLANNING?
>> WHEN THEY MOVED TO FLORIDA
HE AND HIS WIFE BOUGHT A HOME.
THEY HAD TWO CHILDREN.
SHE WORKED BECAUSE SHE WAS A
NURSE.
SHE COULD MAKE MORE MONEY THAN
HE COULD.
HE HAD BEEN GAINFULLY
EMPLOYED.
THAT WAS ONE OF THE
NONSTATUTORY MITIGATORS THAT
THE JUDGE FOUND, THAT WHEN HE
COULD HE FOUND GAINFUL
EMPLOYMENT.
WITH TWO SMALL CHILDREN IT WAS
MORE FINANCIALLY RIGHT FOR THE
FAMILY FOR HIM TO TAKE CARE OF
THE CHILDREN.
AND, THE WIFE WORKED.
NOW, REMEMBER, ON DAY OF THE
MURDER, HE, HE PICKED UP THE
CHILD FROM SCHOOL, CHRISTOPHER.
HE HAD STEVEN IN THE CAR.
HE TOOK THEM HOME.
BEFORE HE WENT BACK, SO HE
WOULDN'T GET HURT.
HE GOES UP.
HE METHODICALLY WAITS FOR THE
CHILD TO GET THERE.
TRICKS HIS WAY INTO THE,
APARTMENT.
>> WE KNOW ALL THOSE FACTS.
WE'RE GOING TO IS THE
BACKGROUND.
WHAT ABOUT, WHILE HE IS LIVING,
GAINFULLY EMPLOYED.
WHAT'S THE WORK CIRCUMSTANCE
WHILE LIVING IN THE APARTMENT
OF HIS MOM?
>> HE WAS A SECURITY GUARD FOR
A BANK.
HE WAS ALSO A BUS DRIVER FOR
THE TRANSIT AUTHORITY FOR MANY
YEARS.
HE WAS ALWAYS GAINFULLY
EMPLOYED IN NEW YORK.
>> OKAY.
>> THERE WAS NOTHING ABNORMAL
ABOUT ANYTHING UNTIL, AND HE
WAS LIVING A NORMAL LIFE.
HIS, HE SAID HIS SEXUAL
RELATIONSHIP COOLED WITH HIS
WIFE.
HE WENT OUT AND FOUND A
MISTRESS.
WHEN SHE DUMPED HIM HE MADE HER
PAY.
THAT'S IT.
TOLD THE DISPATCHER THAT.
TOLD THE HOSTAGE NEGOTIATOR
THAT.
TOLD EVERYBODY THAT, SHE DUMPED
HIM.
WE HAD THIS WONDERFUL
RELATIONSHIP.
HE --
>> WAS HE PLANING TO KILL
HIMSELF?
>> THIS COURT FOUND IN THE
ORIGINAL LYNCH THAT IT WAS A
MURDER-SUICIDE PLAN.
BUT, --
>> HOW OLD WERE HIS CHILDREN AT
THE TILE?
>> CHRISTOPHER WAS FIVE AND
STEVEN WAS TWO.
I'M PRETTY SURE --
>> HE WAS TAKING CARE OF THESE
CHILDREN?
>> HE HAD BEEN TAKING CARE OF
HIS CHILDREN PICKING THEM UP
FROM SCHOOL.
TAKING THEM TO THE PARK.
HE WAS AN EXCELLENT
PHOTOGRAPHER.
HE HAD WONDERFUL PICTURES OF
THE CHILDREN.
AND THIS DAY HE MADE THOSE
CHILDREN GOT HOME SAFELY
BECAUSE WAS GOING TO THE
APARTMENT.
>> THERE MAY BE SOME PEOPLE
WOULD SAY THAT IS EVEN FURTHER
SIGN OF A SERIOUSLY ILL PERSON.
THAT IS THE ISSUE COMES BACK
TO, A IS IT LIFE WORTH SAVING
BECAUSE, HOW HORRENDOUS THE
CRIME IS.
I'M JUST, I GUESS IT'S
NECESSARY, REALLY TO LOOK AT
ALL OF MITIGATION NOW PRESENTED
AND SEE IF THERE WAS ANY
DEFICIENCY.
YOU KNOWS FOR US TO SEE WHETHER
IT UNDERMINES OUR CONFIDENCE IN
THE OUTCOME YOU AGREE THAT'S
WHAT IS SORT OF COMES DOWN TO?
>> I THINK YOU NEED TO LOOK AT
JUDGE EATON'S ORDER.
HE DID A VERY COMPRHENSIVE ORDER.
WENT THROUGH EACH PIECE OF
EVIDENCE.
REMEMBER THAT JUDGE,
DR.^OLANDER TESTIFIED HE HAD
SCHIZOAFFECTIVE DISORDER,
SCHIZOPHRENIA PLUS A MOOD
DISORDER AND JUDGE EATON LOOKED AT
THE FACTS OF CRIME AND LOOKED
AT TESTIMONY OF DR.^REIBSAME.
HE HAS BRAIN DAMAGE AFFECTS
IMPULSE CONTROL, THIS WAS SO
COLD, SOCAL LATED.
HE USED TWO DIFFERENT GUNS ON
ROSE.
HE WAITED FOR HER 30 MINUTES TO
GET THERE ONCE HE SHOT HER
OUTSIDE HE DRAGGED HER IN.
>> WHAT WAS DR.^OLANDER'S
TESTIMONY AT THE
POST-CONVICTION HEARING ABOUT
THE SIGNIFICANCE NOW OF THE
BRAIN DAMAGE?
THAT IS, THAT, HOW THAT
AFFECTED HER DIAGNOSIS AND HER
OPINIONS OF THIS PATIENT?
>> SHE SAID IT WOULD HAVE BEEN
BETTER IF I TESTIFIED THAT I
COULDN'T MAKE AN ASSESSMENT
BRAIN DAMAGE BECAUSE I HADN'T
DONE NEUROPSYCHOLOGICAL TESTING
IS SHE SAID AT EVIDENTIARY
HEARING BUT SHE STUCK WITH HER
DIAGNOSIS OF A SCHIZOAFFECTIVE
DISORDER.
SO IT WOULDN'T HAVE CHANGED
ANYTHING IS THAT WHAT SHE SAID?
IN OTHER WORDS THIS DOESN'T
REALLY AFFECT MY OPINION IN ANY
MATERIAL WAY?
OR WHAT DID SHE SAY?
>> NOT EXACTLY, NOT JUST LIKE
THAT.
NOT JUST LIKE YOU JUST SAID IT
BUT SHE TESTIFIED MY BETTER
TESTIMONY WOULD HAVE BEEN
RATHER THAN SAY THERE IS NO
EVIDENCE OF BRAIN DAMAGE, I
REALLY SHOULD HAVE TESTIFIED
THAT I CAN'T MAKE A DIAGNOSIS
OF BRAIN DAMAGE BECAUSE I
DIDN'T DO NEUROPSYCHOLOGICAL
TESTING.
AND YET SHE GOT UP THERE AS A
NEUROPSYCHOLOGIST AND TOLD THE
JUDGE, THERE ISN'T A SIGN OF
BRAIN DAMAGE.
>> LET'S GO BACK TO, WHAT
JUSTICE ANSTEAD IS LOOKING FOR,
SHE HEARS, SHE KNOWS NOW, ALL
THIS OCCURRED AND THERE IS SOME
FINDINGS OF BRAIN DAMAGE.
HOW DOES THAT IMPACT HER
OPINION?
I THINK THAT'S WHERE WE'RE
GOING.
AND YOU DIDN'T ANSWER THAT
QUESTION.
>> SHE STILL SAID HE IS
SCHIZOAFFECTIVE WHICH IS SAME
THING SHE SAID AT THE PENALTY.
>> JUSTICE QUINCE.
>> DID SHE NOW SAY THAT THE
STATUTORY MITIGATION AS OPPOSED
TO HAVING EMOTIONAL PROBLEMS
AND NOT BEING ABLE TO CONTROL
BUT NOT MEETING THE STATUTORY
REQUIREMENTS DOES SHE NOW SAY
THAT THE STATUTORY REQUIREMENTS
ARE MET WHEN YOU COMBINE THE
BRAIN IMPAIRMENT WITH HER
SCHIZOID DISORDER?
>> SHE ALWAYS SAID THE
STATUTORY ELEMENTS WERE MET.
SO, SHE DIDN'T SAY, WELL, THIS
MAKES MY SCHIZOAFFECTIVE
DISORDER WORSE.
SHE DIDN'T SAY ANY OF THAT.
>> THERE IS ONE THING, THAT WE
TALKED ABOUT JUDGE EATON'S ROLE
IN THIS AND I'VE GOT A
QUESTION.
IN HIS ORIGINAL SENTENCING
ORDER, PAGE 15, HE SAID THAT,
DR.^OL' LANDER THE DEFENDANT TO
HAVE A SCHIZOAFFECTIVE
DISORDER.
DR.^REIBSAME DISAGREES.
THE COURT ACCEPTED
DR.^REIBSAME'S OPINION.
NOW, HE THEN GOES AND HE
REWEIGHS IT IS AGREEING THAT
ACCEPTS THE TESTIMONY THAT IS
ACCURATE THAT HE, YOU KNOW, HAS
BRAIN DAMAGE, THERE IS BRAIN
DAMAGE.
AND IS AWARE THAT IT CAN BE A
SIGNIFICANT MITIGATING FACTOR.
AND THEN HE GOES ON AND SAYS,
WELL, I WOULDN'T HAVE WEIGHED
IT ANY DIFFERENTLY.
MY QUESTION TO YOU IN TERMS OF
PREJUDICE, BECAUSE THIS IS A
JUDGE-ONLY PENALTY PHASE, IS
DOCTOR, IS JUDGE EATON'S
ASSESSMENT OF BOTH WHAT HE
FOUND ORIGINALLY AND WHAT HE
WOULD HAVE FOUND, TO BE GIVEN,
ACCORDED GREATER DEFERENCE BY
THIS COURT THAN IF THIS HAD
BEEN A JURY TRIAL?
WHICH IS, THIS IS A
STATE-FRIENDLY QUESTION.
IN OTHER WORDS THE FACT THAT IT
IS A JUDGE-ONLY CASE, AND NOW
HE IS SAYING LISTEN I'VE HEARD
ALL OF THIS AND I REALLY
WOULDN'T WEIGH IT ANY
DIFFERENTLY, THEN WE DEFER TO
HIM, SHOULD WE GIVE THAT
GREATER WEIGHT THAN WE WOULD,
OKAY HE WOULD HAVE STILL FOUND
THIS, WE DON'T KNOW THE WHAT
THE JURY WOULD HAVE DONE, HOW
DO WE FACTOR THIS IN?
>> THERE IS A BECAUSE, BECAUSE
HE JUDGES THE CREDIBILITY OF
THE EXPERTS AND HE JUDGED
THE CREDIBILITY OF DR.^REIBSAME
AGAINST DR. OLANDER.
HE JUDGED CREDIBILITY OF
DR.^DANZIGER AGAINST THE
OTHERS.
HE NOTES THAT DR.^DANZIGER SAID
THAT HE IS NOT SUFFERING FROM
ANY PSYCHOSIS OR DEMENTIA.
THERE WAS NO INDICATION THAT
THESE WERE THE, THAT THE
MURDERS WERE THE RESULT OF ANY
PULL SIEVE BEHAVE OR BRAIN
DAMAGE.
HE HAD SUFFICIENT SELF-CONTROL
TO REFRAIN FROM KILLING HIM AND
SPOKE VERY CLEARLY TO THE 911
OPERATOR AND THE HOSTAGE
NEGOTIATOR.
THE FACTS JUST DON'T SHOW THIS
OUT OF CONTROL, PSYCHOTIC,
BRAIN-DAMAGED INDIVIDUAL.
AND WHEN, AND HE NOTES THAT
NONE OF THEM CONCLUDED HIS
BRAIN DAMAGE DIRECTLY
CONTRIBUTED TO THE EVENTS.
OKAY, SO BRAIN DAMAGE IN
ISOLATION, CAN BE MITIGATING.
BUT, TO SAY THAT HE DID THIS
BECAUSE HE IS BRAIN-DAMAGED IS
ANOTHER THING.
SO, JUDGE EATON, TOOK THIS, AND
HE LOOKED AT EVERYTHING.
AND, YOU LOOK AT ALL THE
TESTIMONY.
YOU JUST DON'T LOOK AT DEFENSE
TESTIMONY.
YOU ALSO LOOK AT STATE EXPERTS.
HE CONCLUDED THAT THIS WOULD
NOT HAVE CHANGED THE MODERATE
WEIGHT THAT HE HAD GIVEN TO
THESE MENTAL MITIGATORS IN THE
BEGINNING.
>> I GOT A QUESTION BEFORE YOU
SIT DOWN AND YOUR OPPOSITION
WAS QUESTIONED SO HEAVILY SHE
DIDN'T GET TO MOVE ON IN A
COUPLE POINT HERE.
I'M TROUBLED BY COUPLE THINGS
AND TECHNICAL NATURE OF THOSE
THINGS.
THAT IS THE PULLING OF THE
TRIGGER.
>> AND THE MOTION TO
DISQUALIFY AND THE JUDGE
ACTUALLY RESPONDING TO THAT
RATHER THAN, JUST SAYING,
DENIED FOR LACK OF SPECFICITY.
IF THE FINDER OF FACT TAKES A
FIREARM, IT'S PLACED INTO
EVIDENCE, AND TAKES IT INTO
EITHER A JURY ROOM OR A
CHAMBERS AND THEY CONDUCT TEST
FIRING, THAT WOULD BE
INAPPROPRIATE?
THAT IS A TESTING OUTSIDE THE
PRESENCE OF THE PARTIES?
>> NOW IF HE DID SOMETHING LIKE
CS AND FIRED IT.
>> LET'S WALK THROUGH THIS.
REALLY I'M CONCERNED ABOUT SOME
OF THESE TECHNICAL THINGS.
AND BUT THAT'S A DIFFERENT
CATEGORY IS WHAT YOU'RE SAYING
PULLING OF TRIGGER IS NOT
REALLY TESTING IT, IS THAT --?
>> LET ME GO BACK TO YOUR FIRST
QUESTION.
THE ISSUE ABOUT -- HE DENIED
THE MOTION TO DISQUALIFY AS
LEGALLY INSUFFICIENT.
>> HE WENT IN AND ADDRESSED IT
FACTUALLY.
>> AFTERWARDS.
>> I UNDERSTAND BUT HE WENT
AHEAD AND IT FACTUALLY.
>> AFTER THE SECOND --
>> SO THAT MAKES A DIFFERENCE.
>> OH ABSOLUTELY.
>> KEEP GOING.
WE'RE OUT TIME, SO.
>> I'M SORRY.
>> HE ADDRESSED IT FACTUALLY
IN DENYING MOTION FOR REHEARING
WHAT YOU'RE SAYING.
>> HE SAID THAT, THE SECOND
MOTION FOR REHEARING.
WHICH WAS WAY AFTER THE MOTION
TO DISQUALIFY.
NOW, HE DID NOT TEST FIRE
THE GUN.
>> UNDERSTAND I'M TRYING TO
WORK MY WAY THERE TO -- IS IT
DIFFERENT?
IS THIS A SENSUAL, SENSE OF
PERCEPTION WATER IS WET WHEN I
LOOK AT PHOTOGRAPH?
THERE IS SOMEPLACE THIS LINE
BREAKS.
>> IF WATER IS WET I LOOK AT A
PHOTOGRAPH.
THERE WAS EXPERT, RUDOLPH --
>> I KNOW THAT BACKGROUND.
WE ALL KNOW THAT BACKGROUND OF
THE TRYING TO GET TO THE POINT,
WHAT OCCURRED OUT OF THE
PRESENCE OF THE PARTIES AND,
WHETHER THAT SOME KIND OF
VIOLATION OR IS NOT?
>> IT'S NOT A VIOLATION
WHATSOEVER.
THE 3.400 IS THE CRIMINAL RULE
THAT ALLOWS THE FINDER OF FACT
TO LOOK AT THE EVIDENCE --
>> I AGREE LOOK AT IT.
THEN THE QUESTION BECOMES, SEES
THE GUN.
LISTENING TO THE TESTIMONY BUT
HE WENT IN AND TESTED THEORY OF
THE TESTIMONY BY PULLING ON THE
TRIGGER.
>> WELL HE TOUCHED THE TRIGGER
TO SEE IF IT'S A HAIR TRIGGER.
>> AGAIN HE TRIED TO PULL THE
TRIGGER.
THAT'S WHAT WE'RE TALKING
ABOUT.
>> BUT THERE'S, THERE'S TWO,
DIRECTLY OPPOSITE TESTIMONIES.
NANETTE RUDOLPH AND ROY RUEL
--
>> WE UNDERSTAND THAT TRYING TO
PROVE ONE OR THE OTHER.
TRYING TO VERIFY.
THERE NOTHING AT ALL WRONG WITH
THE FINDER OF FACT DOING
SOMETHING LIKE THIS WITH
EVIDENCE?
>> NO, SIR.
IF, NOW IF HE HAD TAKEN IT OVER
TO THE SHERIFF'S OFFICE AND
DONE A TEST FIRE LIKE "C.S.I."
AND --
>> I UNDERSTAND.
HE DIDN'T DO THAT.
>> WHERE IS THE TRIAL JUDGE
COME UP WITH THE CONCLUSION
THAT THE, WHEN THE GUN IS FIRED
THAT IT MAKES AN EXTREMELY LOUD
NOISE?
DID THE EXPERT TESTIFY TO THAT?
>> FIRST, WELL, MR.^LYNCH SAID
THAT IN HIS STATEMENT THAT WHEN
HE FIRED, IT ALMOST HE DEAFENED
HIM.
THAT WAS IN HIS VIDEOTAPE
STATEMENT.
THAT IS RIGHT OUT OF HIS MOUTH.
>> DID THE EXPERT TESTIFY ABOUT
WHETHER THE GUN MAKE AS LOUD
NOISE WHEN IT'S FIRED?
>> I'M NOT ABSOLUTELY SURE
ABOUT THE NOISE BUT I KNOW
MR.^LYNCH --
>> SO YOU THINK THE TRIAL
JUDGE'S SOURCE, SOUNDS, AWFUL
LOT LIKE THE TRIAL JUDGE IS
COMMENTING FROM HIS OWN
PERSONAL KNOWLEDGE, THAT THIS
GUN MAKES AN AWFUL LOUD NOISE
WHEN IT DISCHARGES.
>> I THINK IF YOU'RE IN A SMALL
APARTMENT, ANY GUN IS GOING TO
MAKE A LOUD NOISE.
>> I'M NOT TALKING ABOUT
WHETHER, NOW, YOU'RE TELLING US
WHAT HAPPENS IN A SMALL
APARTMENT.
I'M TALKING ABOUT THE TRIAL
JUDGE, DID HEARSAY ONE OF THE
THINGS THAT HE CONCLUDED WAS,
THAT, IN TERMS OF THIS THING
NOT GOING OFF ACCIDENTALLY
SEVEN TILES OR WHATEVER IT WAS,
THAT EACH TIME THE GUN
DISCHARGES IT MAKE AS VERY --
MAKES A VERY LOUD NOISE.
I'M ASKING YOU WHAT IS THE
APPARENT SOURCE OF THE TRIAL
JUDGE'S COMMENT ABOUT THAT?
>> ALL THE NEIGHBORS HEARD IT.
THEY HEARD THE THREE GUNS.
REMEMBER THE S.W.A.T.
TEAM WAS --
>> SO YOU DO NOT BELIEVE THAT
THE TRIAL JUDGE WAS COMMENTING
ABOUT HIS OWN SPECIAL KNOWLEDGE
OF THIS GUN?
>> NO, SIR.
NO, SIR.
HE WOULDN'T SHOOT THE GUN OFF
IN CHAMBERS, SAY OH IT'S LOUD.
>> I'M NOT SAYING HE WOULD
SHOOT THE GUN OFF IN CHAMBERS.
I'M SAYING AT SOME POINT THE
TRIAL JUDGE ALSO SAID THAT
KNOWS SOMETHING ABOUT GUNS.
IS THAT CORRECT?
>> HE DID.
AND DEFENSE COUNSEL,
MR.^FIGGATT SAID, I KNOW A LOT
ABOUT GUNS.
IT'S NOT A HAIR TRIGGER.
I MEAN --
>> IF WE PUT THIS IN THE
CONTEXT OF A JURY, A JUROR,
DURING VOIR DIRE A JUROR HAD
SOME EXPERIENCE FIRING GUNS OR
WHATEVER AND GOES BACK WITH THE
JURY IT'S IN JURY DELIBERATION
IS THERE ANY CASE LAW SAYS THAT
IF IS IT'S QUALIFY JUROR THE
JUROR IN DISCUSSION, FIREARMS
OFTEN GO BACK IN THE JURY ROOMS
UNLOADED THAT IT WOULD BE
INAPPROPRIATE FOR THE JUROR TO
TAKE THEIR OWN INDIVIDUAL
KNOWLEDGE, COMMON SENSE AND, IN
MAKING A FINDING?
>> THEY SHOULD NOT BE BACK
THERE TESTIFYINGS AS AN EXPERT
ON GUN.
>> I AGREE TO THAT.
BUT THE EXPERTS TESTIFY IN
ORDER TO GIVE ASSISTANCE TO THE
JURIES IN MAKING AND THEY CAN
EITHER ACCEPT OR REJECT WHAT
THE EXPERTS SAY, CORRECT?
>> YES.
>> IS ANY EVIDENCE THAT JUDGE
EATON HERE AS THE TRIER OF
FACT, ACCEPTED OR REJECTED?
>> OH, YES THERE IS, HE
ACCEPTED NANETTE RUDOLPH'S
TESTIMONY OVER ROY RUEL, THE
DEFENSE EXPERT SAYS HE WAS THE
LEAST CREDIBLE EXPERT HE HEARD
IN HIS 20 YEARS ON THE BENCH,
THE DEFENSE EXPERT.
I DON'T WANT TO ABSOLUTELY SAY
NANETTE RUDOLPH TESTIFIED IT
WOULD MAKE A VERY LOUD NOISE, I
DO KNOW THERE IS ABSOLUTE BASIS
IN THE RECORD BECAUSE ALL THE
NEIGHBORS HEARD THE SECOND SET
OF THREE SHOTS AFTER HE WAS
INSIDE.
AND THE S.W.A.T. TEAM WAS
EVACUATING THEM AS QUICKLY AS
THEY COULD.
>> WHERE IS THE LINE DRAWN WITH
REGARD TO THE DIFFERENCE
BETWEEN THE FIRING, THE
TOUCHING, THE TESTING? IS
THERE A LINE?
>> I THINK THERE WOULD BE A
LINE WHEN YOU GO OUTSIDE OF
WHAT THE COMMON KNOWLEDGE OF A
LAYPERSON WOULD BE, WHAT THE
FINDER OF FACT CAN BRING TO THE
TABLE.
>> I'M TALKING ABOUT THE
TOUCHING, DOING SOMETHING WITH
A PIECE OF EVIDENCE, WHERE DOES
THE LINE, WHERE IS THE LINE
DRAWN?
>> I THINK IF I'M A JUROR I
COULD TAKE THE GUN AND LOOK AT
IT GO, OKAY, THERE IS A TRIGGER
HERE.
>> AND PULL IT?
>> WELL, I DON'T SEE WHY NOT.
>> I'M JUST ASKING.
AND THE LINE WOULD BECOME,
WOULD COME IF YOU'RE DOING SOME
KIND OF SCIENTIFIC TESTING?
YOU CAN USE IT AND LOOK AT IT
DO WHATEVER IN YOUR OWN SENSES,
JUST A QUESTION OF FURTHER SOME
KIND OF SCIENTIFIC TESTING, IS
THAT --
>> OF COURSE.
>> OKAY.
>> ANY PHOTOGRAPH, ANYTHING.
>> YOU'RE WAY OVER TIME.
>> OH I'M SORRY.
I WOULD ASK THE COURT TO AFFIRM
THE TRIAL COURT DECISION.
>> THANK YOU.
REBUTTAL?
>> I REALLY WANT TO FOCUS ON
THE PREJUDICE PRONG IN MY
REBUTTAL.
OPPOSING COUNSEL INDICATED THAT
MR.^LYNCH DID NOT SHARE A
BEDROOM WITH HUSBAND MOTHER.
INACCURATE.
OWE DID SHARE A ROOM WITH HIS
PARENTS UNTIL HIS FATHER DIED
WHEN HE WAS 17.
HE CONTINUED TO SHARE A BEDROOM
WITH HER COUPLE YEARS.
THEY THEN MOVED TO ANOTHER
APARTMENT.
THAT'S WHEN THEY HAD A SEPARATE
ROOM.
>> IS THERE SUGGESTION HE
HAVING INMAT RELATIONSHIPS WITH
FAMILY MEMBERS?
IS THAT --
>> THERE IS NOTHING IN THE
RECORD TO SUGGEST THAT.
CERTAINLY IT GOES TO SHOW, I
THINK WHAT WAS ABORMALLY CLOSE
RELATIONSHIP.
HIS MOTHER OVERLY DOTING.
AND --
>> THE HOME THEY LIVED IN, ONE
OR TWO, OR THREE BEDROOM HOME
AND THEY LIVED IN ONE BEDROOM
TOGETHER?
>> THEY LIVED IN APARTMENT.
>> HOW MANY BEDROOMS?
>> INITIALLY WHEN HE WAS
GROWING UP AND SHARING A
BEDROOM WITH HIS PARENTS, IT
WAS ONE BEDROOM BUT THERE WERE
MULTIPLE ROOMS IN THE
APARTMENT.
THEN WHEN HE MOVED INTO THE
APARTMENT WITH HIS MOTHER THERE
WAS ACTUALLY, A LITTLE ROOM, HE
HAD A SEPARATE BEDROOM THAT WAS
A SMALL ROOM.
>> WHAT DID THE MENTAL
HEALTH EXPERT SAY ABOUT THAT
FACTOR?
DID THEY SAY THAT THIS IS
SIGNIFICANT IN TERMS OF HIS
MENTAL HEALTH HISTORY?
>> I THINK WHAT THE TESTIMONY
WAS, MORE A NATURE OF THE
OVERLY CLOSE RELATIONSHIP WITH
THE MOTHER.
HE DROVE HER AROUND WELL INTO
HIS 20s.
TOOK HER PLACES.
HE REALLY DIDN'T HAVE FRIENDS
AND FAMILY.
I THINK IT WAS MORE FOCUS ON --
THERE WAS NEVER ANY SUGGESTION
OF IMPROPER SEXUAL RELATIONSHIP.
I'M NOT TRYING TO IMPLY THAT
BUT --
>> BUT DID THEY SAY THIS IS
FACTOR IN THEIR DIAGNOSIS AND
EVALUATION OF HIS MENTAL
HEALTH?
THAT THIS IS A RED FLAG OR
WHATEVER AS TO HIS CONDITION?
>> I CAN'T, I CAN'T POINT TO
SPECIFICALLY.
I DO REMEMBER GENERAL TESTIMONY
ABOUT THE GENERAL NATURE OF
RELATIONSHIP WITH HIS MOTHER
BUT I CAN'T THINK OF
ANYTHING --
>> YOU'RE SAYING THAT IS SORT
OF UNUSUAL FACTOR IN HIS
BACKGROUND, IN HIS MATURING AS
MALE ADULT?
>> I JUST WANTED TO CORRECT.
I WANT TO MAKE SURE THAT THE
RECORD WAS CLEAR.
THAT'S REALLY WHY I WANTED TO
GO TO THAT.
I WANT TO TALK REALLY ABOUT THE
COURT'S ORDER.
I THINK I REALLY ASKED THIS
COURT TO LOOK VERY CLOSELY AT
THE COURT'S ORDER AND FOR
PURPOSES OF LIMITED TIME THAT I
HAVE, IT'S JUST THAT IF YOU
LOOK AT THE COURT'S ORDER ON
THE RATIONALE AS TO THE BRAIN
DAMAGE, THE COURT ACTUALLY, I
THINK MISQUOTES, OR
MISCHARACTERIZES WHAT THE
EXPERT SAID.
FOR EXAMPLE HE SAYS THAT
DR.^SESTA SAID MR.^LYNCH WAS
NOT LEGALLY INSANE, HE KNEW
RIGHT FROM WRONG AND HE NYE
WHAT HE WAS DOING AND THAT
DR.^SESTA SAID WAS UNABLE TO
CONFORM HIS BEHAVIOR TO THE
STANDARDS OF THE LAW AND THAT
MAKE HIM LESS CULPABLE.
THAT IS TECHNICALLY ACCURATE.
IN MY BRIEF I ADDRESS AN AREA
WHERE DR.^SESTA SAYS THIS IS
VERY SUBSTANTIAL MITIGATING
EVIDENCE AND ALSO ASK THE COURT
TO LOOK AT PAGE 1015, 1016 IN
THE RECORD WHICH I DIDN'T CITE
IN MY PREVIOUS WHERE DR.^SESTA
DIDN'T MEAN LESS CULPABLE.
WHAT HE MEANT WAS SUBSTANTIALLY
CONFORMING CONDUCT.
>> LET ME ASK A QUESTION ON
THAT.
THE CRITICAL FINDING OF JUDGE
EATON IS ON PAGE 27 OF HIS
ORDER.
HE SAID NONE OF THE EXPERTS
CONCLUDED CLAIMED THAT BRAIN
DIRECTLY DIRECTLY CONTRIBUTED
TO EVENTS SURROUNDING MURDER.
WHERE IS THE CONTRARY?
>> I'M VERY GLAD YOU ASKED THAT
JUSTICE BELL.
OLANDER IN FOOTNOTE FOUND TO BE
CREDIBLE.
ONLY FOUND TO BE
CREDIBILITY.
MADE EXPRESS FINDING OF
CREDIBILITY.
I ACTUALLY MADE A MISTAKE IN MY
BRIEF IN THAT.
HE SAID HE FOUND NO ONE WITH
CREDIBILITY.
SHE SAID THE BRAIN DAMAGE WOULD
HAVE EXPONENTIALAL EFFECT ON
PSYCHOSIS AND MENTAL ILLNESS.
THAT IS AT 2049 OF THE ROA.
PAGE 672 AND 673 OF THE ROA
DR.^OLANDER SAID IT WOULD HAVE
ADDED TO STATE OF EXTREME
EMOTIONAL STATE MR.^LYNCH WAS
EXPERIENCING AT TIME OF
COMMISSION OF THE OFFENSE.
>> YOU DIDN'T ANSWER MY
QUESTION.
WHERE DID THEY SPECIFICALLY SAY
BECAUSE OF THIS SCHIZOAFFECTIVE
DISORDER IT HAD THIS
DIRECT RELATIONSHIP WITH THIS
PARTICULAR CRIME, OTHER THAN
SUFFERING FROM THAT?
>> WELL THE FOCUS AT PENALTY
PHASE WAS ON THE BRAIN DAMAGE
THERE HAD BEEN TESTIMONY BY
DR.^OLANDER ALREADY OF THE
SCHIZOAFFECTIVE DISORDER.
BUT THEY ALL SAID THAT THE
BRAIN DAMAGE WAS A STATIC
CONDITION.
MEANING IT'S ON GOING.
IT'S ALWAYS THERE.
AND, SO THAT IT ABSOLUTELY
WOULD HAVE TO HAVE AN EFFECT
BECAUSE IT'S THERE AND YOU
COMBINE THAT WITH THE
PSYCHOSIS, SO THEY ALL, ALL
SQUARELY ADDRESSED THE
MITIGATORS IN ASSESSING, IN BY
IMPLICATION IF THE MITIGATORS,
STATUTORY MITIGATORS ARE LINKED
TO THE CRIME --
>> THAT'S YOUR POSITION, IF A
MITIGATOR IS FOUND IT APPLIES
TO THE COMMISSION OF A CRIME?
>> NO NO,.
MY POSITION IS, MY
UNDERSTANDING OF THIS COURT'S
LAW IN THAT AREA IS, FOR THE
STATUTORY MENTAL MITIGATORS TO
APPLY GENERALLY THIS COURT HAS,
SOUGHT A LINK.
OTHERWISE THEN I SUPPOSE IT
COULD BE NONSTATUTORY BUT, THE,
I THINK THE TESTIMONY WHAT I
SAID EARLIER, DR.^MCRANEY SAID
ABOUT THE PERFECT STORM.
WE HAD TESTIMONY ABOUT GENE
CODY, THE BARBER DESCRIBED
MR.^LYNCH LOOKING ILL.
HE DYED HIS HAIR.
ALL THE EXPERTS SAID THAT WAS
EVIDENCE OF DECOMPENSATION?
>> I HAVE A PRACTICAL QUESTION
IF I MAY BECAUSE YOU'RE
DEFINITELY OUT OF TIME.
IF WE DON'T FIND THAT COUNSEL
WAS DEFICIENT IN ADVISING HIS
CLIENT ON THE WAIVER OF THE
PENALTY PHASE, BUT IF WE LOOK
AT THIS EVIDENCE AND SAY, WELL,
WE THINK THAT IT SHOULD HAVE
BEEN PRESENTED, IF IT WENT
BACK, IF THERE WAS NOTHING
WRONG WITH THE WAIVER, WOULDN'T
IT JUST, AND THERE'S, AND THE
FACT-FINDER BEING, JUDGE EATON,
ASSUMING THERE IS NO PROBLEM
WITH THE RECUSEAL ISSUE,
WOULDN'T IT JUST GO BACK TO
JUDGE EATON?
SINCE WE ALREADY KNOW WHAT
JUDGE EATON WOULD DO, IF WE
LOOK AT IT AND SAY, EVEN THOUGH
WE MIGHT HAVE CAME TO A
DIFFERENT CONCLUSION, JUDGE
EATON ALREADY MADE FINDINGS
AND, WE'RE NOT GOING TO
DISTURB, WHY WOULD WE REVERSE?
DO YOU UNDERSTAND -- THE
QUESTION IS REALLY
PRACTICALITY.
SAY YOU GOT A NEW PENALTY
PHASE.
YOU GET IT IN OF JUDGE EATON.
WE ALREADY KNOW, UNLESS YOU HAD
SOMETHING ELSE TO PRESENT THAT
JUDGE EATON HAS EXPLAINED HIS
CREDIBILITY FINDINGS AS TO
THESE EXPERTS.
>> WELL, I THINK OBVIOUSLY
THERE IS AN ISSUE WITH THE BIAS
OF THIS JUDGE THAT WAS RAISED
IN THE BRIEF.
AND I THINK --
>> I'M SAYING ASSUMING IT GOES,
WE FIND THAT TO BE WITHOUT
MERIT?
>> I WOULD THINK THAT IF HE
WERE, IF YOU FIND THAT
CONFIDENCE IN THE OUTCOME IS
UNDERMINED, THAT MR.^LYNCH
WOULD BE ENTITLED TO GO BACK
AND HE SHOULD BE ENTITLED TO
HAVE A JURY SENTENCING, AND
CERTAINLY, IF THIS, THAT'S A
NUN FUN RIGHT AND I THINK --
FUNDAMENTAL RIGHT I THINK IF I
COULD SUM UP THAT IS ONE OF THE
BIG THINGS ABOUT THIS CASE.
THIS WAS A MAN WHO WAS
CONVICTED AND SENTENCED TO WHO
NEVER HAD A GUILT PHASE TRIAL
AND NEVER HAD A SENTENCING
JURY.
BASED ON ADVICE OF COUNSEL WHO
THEMSELVES ADMITTED THEY FAILED
IN INVESTIGATING AND ADVISING
THEIR CLIENT.
THIS CASE IS FAILURE OF OUR
ADVERSARIAL SYSTEM OF JUST.
MR.^LYNCH NEVER DID HAVE
ADVERSARIAL TESTING.
BECAUSE OF THOSE FACTS I ASK
THAT THIS COURT RESPECTFULLY
ASK THIS COURT REVERSE HIS
CONVICTION AND SENTENCE AND
REMAND SO HE CAN HAVE A JURY.
AND IF THERE'S ANYTHING ELSE, I
HOPE I ANSWERED YOUR QUESTION
BUT IF THERE'S ANYTHING ELSE?
>> LET'S CONTINUE WITH OUR
ASSISTANCE YOU'RE WELL OVER
ADDITIONAL TIME.
WE'LL TAKE THE CASE UNDER ADVISEMENT.
THANK YOU VERY MUCH.