In re: Amendments to the Florida Small Claims Rules

The following is a real-time transcript taken as closed captioning during the oral argument proceedings, and as such, may contain errors. This service is provided solely for the purpose of assisting those with disabilities and should be used for no other purpose. These are not legal documents, and may not be used as legal authority. This transcript is not an official document of the Florida Supreme Court.

Angel Diaz v. State of Florida

SC06-2259

PLEASE RISE.
HERE YE, HERE YE.
SUPREME COURT OF FLORIDA IS
NOW IN SESSION.
ALL WHO HAVE CAUSE TO PLEA,
DRAW NEAR, GIVE ATTENTION,
AND YOU SHALL BE HEARD.
GOD SAVE FLORIDA, THESE
UNITED STATES, AND THE GREAT
STATE OF FLORIDA.
>> GOOD MORNING.
>> GOOD MORNING.
LADIES AND GENTLEMEN, THE
FLORIDA SUPREME COURT.
PLEASE BE SEATED.
>> GOOD MORNING AND WELCOME
TO THE ORAL ARGUMENT
CALENDAR FOR DECEMBER 7th,
2006.
THE FIRST CASE ON OUR
CALENDAR THIS MORNING IS
DIAZ v. STATE OF FLORIDA.
AND I WOULD, WOULD ASK THAT
PLEASE USE YOUR TIME WISELY
BE WE GENERALLY HAVE A LOT
OF QUESTIONS AND YOU WANT TO
BE SURE YOU WALK AWAY YOU
FEEL AS THOUGH YOU HAVE BEEN
ABLE TO PRESENT THE ARGUMENT
THAT YOU WANTED TO PRESENT.
>> GOOD MORNING.
MAY IT PLEASE THE COURT,
SUSAN CERF ON BEHALF OF THE
APPELLANT DIAZ.
THIS IS THE CIRCUIT OF
DENIAL OF POST CONVICTION
RELIEF AND DENIAL OF ACCESS
TO PUBLIC RECORDS.
I WOULD FIRST LIKE TO
ADDRESS THE APPELLANT'S
CLAIM OF NEWLY DISCOVERED
EVIDENCE.
THE JAILHOUSE SNITCH WAS THE
ONLY WITNESS IDENTIFYING
MR. DIAZ AS SHOOTER.
HE ONLY INDICATED THAT HE
HAD ACTED OUT THE SHOOTER
FROM HIM AND INFERED THE
SHOOTER WAS THE SHOOTER
BASED ON THOSE ACTION SAID.
WHAT HE TESTIFIED TO AT
TRIAL IS THAT MR. DIAZ SHOT
THE MAN AND HE INDICATED
THAT HE HAD TO SHOOT ORTHE
-- OR THE OTHER GUY WOULD
SHOOT HIM.
>> THE TRIAL COURT ENTERED A
COMPREHENSIVE ORDER ON THIS,
AND COULD YOU USE THAT AS
THE FRAMEWORK?
WHERE DID THE TRIAL COURT GO
WRONG IN ITS ANALYSIS OF
THIS ISSUE IN THE ORDER THAT
WAS ENTERED BECAUSE IT
SEEMED LIKE THAT ORDER
PRETTY COMPREHENSIVELY
TREATED THE ISSUE.
SO WITHOUT COMMENTING ON THE
MERITS OF THE OUTCOME, WHAT
-- WHERE IS THE FLAW IN THE
ANALYSIS OF THE TRIAL COURT?
>> WELL, FIRST, I THINK IT'S
IMPORTANT TO NOTE THAT THE
TRIAL COURT DID IN FACT SAY
THAT THE RECANTATION OF
MR. GAUGE'S INFERENCE IS
NEW.
SO SHE DID FIND THAT THIS
WAS NEWLY DISCOVERED
EVIDENCE.
I THINK THAT WHERE THE TRIAL
COURT WENT WRONG IS IN ITS
ANALYSIS OF WHETHER THIS
WOULD PROBABLY PRODUCE AN
ACQUITICAL OR A LIFE
SENTENCE.
IT'S A LITTLE UNCLEAR IF THE
TRIAL -- WHETHER THE TRIAL
COURT HAD THE STANDARD
CORRECT, BUT IN ESSENCE, SHE
DID FIND THAT THIS WOULD NOT
HAVE MADE A DIFFERENCE.
CERTAINLY WITH REGARDS TO A
LIFE SENTENCE.
>> YOU SAY THE TRIAL JUDGE
FOUND THAT THIS WAS NEWLY
DISCOVERED EVIDENCE.
WELL, WOULD -- LET'S EXPLORE
THAT A LITTLE BIT.
THIS WAS AN INDICATION THAT
MR. GAUGES, IS THAT HES NAME.
>> GAUGES.
>> DID NOT ACTUALLY GET
INFORMATION FROM THE
DEFENDANT THAT HE WAS THE
SHOOTER, CORRECT?
>> I KNOW THERE ARE
DIFFERENT PARTS OF HIS
AFFIDAVIT BUT THAT'S ONE OF
THE MAIN PARTS OF HIS
AFFIDAVIT.
AND IN THAT TRIAL MR. GAUGES
ALSO SAID THAT MR. DIAZ
NEVER TOLD HIM THAT HE WAS
THE OKTUAL SHOOTER AND THAT
HE JUST INFERRED THAT FROM
MOTIONS OF, OF MR. DIAZ,
CORRECT?
>> THAT'S CORRECT.
>> SO ON THAT ISSUE, IT
SEEMS TO ME, AT LEAST THAT
PORTION OF HIS AFFIDAVIT,
SEEMS TO BE PRETTY
CONSISTENT WITH WHAT HE SAID
AT TRIAL.
SO WHAT IS THE REAL
DIFFERENCE IN WHAT THE
AFFIDAVIT SAYS AND WHAT HE
SAID AT TRIAL ON THAT
PARTICULAR ISSUE?
>> THE DISTINCTION NOW IS
THAT HE SAYS HIS TESTIMONY
THAT HE INFERRED THAT
MR. DIAZ WAS THE SHOOTER IS
IN FACT A LIE ALSO.
NOT ONLY DID MR. DIAZ NOT
ADMIT TO BEING THE SHOOTER
SO HE DID NOT SPECIFICALLY
TELL HIM IN HIS OWN WORDS
BUT IN FACT, WHEN MR. GAUGES
TESTIFIED THAT HE WAS
INFERRING THIS INFORMATION
FROM HIS ACTIONS, THAT WAS A
LIE.
HE IN FACT SAYS THAT AT THE
TIME HE TESTIFIED, HE HAD NO
BASIS FOR STATING THAT
MR. DIAZ WAS THE SHOOTER,
ANY BASIS TO MAKE THAT
INFERENCE.
HE DIDN'T KNOW WHAT THE
SHOOTER WAS BASED ON WHAT
MR. DIAZ'S ACTIONS WERE.
>> AND HOW ALSO DOES THIS
RELATE TO THE 19893.851
MOTION THAT WAS FILED AND
THERE WAS INDICATION IN THAT
MOTION THAT PREVIOUS CCRC
COUNSEL HAD MADE A STATEMENT
SIMILAR TO THAT MR. GAUGES
HAD MADE A STATEMENT SIMILAR
TO THE ONE HE'S MAKING NOW.
AND SO IT SEEMS TO ME THAT
AT SOME POINT EVEN THAT PART
OF WHAT MR. GAUGICIZE SAYING
WAS TALKED ABOUT IN THE 1989
PROCEEDING.
>> WHAT YOU'RE REFERING TO
IS A VERY CONCHRUSRY
SENTENCE CONTAINED WITHIN A
BRADY CLAIM IN THE 19893850.
WHAT THAT STATEMENT WAS
MR. GAUGES TOLD CURRENT
COUNSEL HE NEVER -- THIS
STATEMENT IS NOTHING MORE
THAN WHAT HE SAID AT TRIAL.
HE SAID AT TRIAL THAT HE
DIDN'T ADMIT T. WHAT HE SAID
AT TRIAL IS THAT HE ONLY
INFERRED IT AND AS I STATED
WHAT IS DIFFERENT NOW IS
THAT EVEN THAT INFERENCE IS
BASED ON A LIMT THERE WAS NO
INFORMATION FOR HIM TO INFER
THAT.
>> ARE YOU ASKING FOR A NEW
PENALTY PHASE OR ARE YOU
ASKING FOR A RETURN FOR
EVIDENTIARY HEARING BECAUSE
WE ARE HERE AGAIN THOUGH THE
TRIAL COURT DID ORDER A
COMPREHENSIVE ORDER.
DID SHE HEAR FROM GAUGES?
>> IT IS MY POSITION THAT IN
HER ORDER SHE DID STATE
NOTHING NEW IS ALLEGED.
SHE GOES THROUGH EACH
PORTION OF THE AFFIDAVIT
THAT NOTHING NEW IS ALLEGED
EXCEPT FOR THE RECANTATION
OF MR. GAUJS SHE IS STATING
THE RECANTATION IS NEW
EVIDENCE SO ESSENTIALLY WHAT
I HAVE STATED IN THE BRIEF
THAT TO THE EXTENT THE STATE
IS STILL ARGUING THAT
COUNSEL WAS NOT DILIGENT AND
THIS IS NOT NEWLY DISCOVERED
SKPEFDS THEY'RE CALL NOTHING
TO QUESTION THE -- EVIDENCE,
AND THEY'RE CALL NOTHING TO
QUESTION THE STATEMENT OF
THE 19893850.
>> TO DECIDE WHETHER AN
EVIDENTIARY HEARING TO
DETERMINE WHETHER IT'S NEWLY
DISCOVERED?
I MEAN WOULD THE EVIDENTIARY
HEARING BE A THRESHOLD
DECISION AS TO WHETHER CCRC
WAS DILATORY IN TRYING TO
OBTAIN THIS INFORMATION.
>> WELL THE STATE'S POSITION
IS THAT IT'S NOT NEWLY
DISCOVERED EVIDENCE.
>> IN OTHER WORDS, HOW IS
THAT REVIEWED ON APPEAL?
IS THAT A DECISION OF LAW?
IS THERE FACTS, PEOPLE NEED
TO TESTIFY AS TO WHAT WAS
DONE BETWEEN 1989 AND 2006?
WHEN YOU KNOW THAT GAUGES IS
THE PERSON THAT IS THE ONLY
ONE THAT PUTS DIAZ AS BEING
THE SHOOTER?
YOU JUST 89 TO 2006 DO
NOTHING TO PURSUE THAT?
I MEAN, IN OTHER WORDS, WHAT
IS, WHERE IS THAT
DETERMINATION TO BE MADE?
>> WELL, I THINK AT AN
EVIDENTIARY HEARING.
OF COURSE, WE HAVE SET THAT
OUT IN OUR 3850 BELOW AS
WELL AS IN THE BRIEF,
HOWEVER, ALL THAT THE TRIAL
COURT SAYS IS THAT NOTHING
NEW IS ALEMGED HERE BUT THE
RECANTATION.
SHE DOESN'T DISCUSS CCRC'S
DILIGENCE BEYOND THAT SO I
THINK THE ACKNOWLEDGMENT
THAT THIS IS NEW EVIDENCE IS
ESSENTIALLY --
>> WHAT IF WE ASSUME IT'S
NEW EVIDENCE.
WHAT ABOUT THE STATEMENTS IN
OUR OPINIONS, WHICH
ESSENTIALLY ALREADY
ACKNOWLEDGE THAT THERE'S NO
CONCLUSIVE EVIDENCE AS TO
WHO THE SHOOTER IS BUT THAT
EITHER WAY, DIAZ WAS A MAJOR
PARTICIPATE.
HOW DOES THIS --
PARTICIPANT.
HOW DOES THIS EVIDENCE OF
WHAT NOW GAUGES SAYS CHANGE
THAT CONCLUSION THAT THIS
COURT MADE THAT HE WAS A
MAJOR PARTICIPANT AND WE
WERE NOT MAKE AGDECISION AS
TO WHO THE SHOOTER WAS?
>> WELL, I THINK THAT WHAT
YOUR HAHNSER REFERING TO IS
THE ANALYSIS ON DIRECT
APPEAL AND WHAT THAT DOES IS
THAT ONLY GETS OVER THE
HURDLE THAT THE STATE CAN
EXACT THE DEATH PENALTY ONCE
THERE'S BEEN A WEIGHING OF
AGGRAVATION AND MITIGATION.
HERE YOU WOULD HAVE TO LOOK
AT HOW THE GAUGES
INFORMATION THAT WE NOW HAVE,
HIS ADMISSION THAT HIS
INFERENCE WAS IN FACT A LIE
WOULD HAVE AFFECTED THE JURY
IN THIS PROCEEDING,
PARTICULARLY WHILE I STILL
MAINTAIN THAT THIS WOULD'VE
AFFECTED THE ACTUAL
CONVICTION, THERE IS NO
DOUBT THAT IT WOULD AFFECT
THE SENTENCE HERE.
THE JURY DURING THEIR GUILT
PHASE DELIBERATIONS ASKED
FOR THE TESTIMONY OF CANDICE
BRAWN AND RALPH GAUGES.
THOSE WERE THE TWO WITNESSES
WHOSE TESTIMONY CONFLICTED.
ONE SAID MR. TORO WAS THE
SHOOTER AND MR. GAUGES SAID
MR. DIAZ WAS THE SHOOTER.
THEY WERE OBVIOUSLY
CONCERNED ABOUT THE
TESTIMONY.
THEY ASKED FOR IT.
THE JUDGE YPIN FACT ASKED
THEM TO GIVE IT AND THE
JUDGE INSTRUCTED THEM TO
RELY ON THEIR MEMORY.
WHAT ALSO MUST BE
CONSIDERICIDE THAT THIS WAS
A AN 8-4 JURY
RECOMMENDATION.
THERE WAS NO INFORMATION --
>> IT APPEARS TO ME FROM
READING THE TRIAL COURT'S
ORDER AND YOU'RE DEALING
WITH THE ORDER THAT THE
TRIAL COURT ENTERED ON
DECEMBER 1st, RIGHT?
>> CORRECT.
>> AND THE, THE TRIAL COURT
SAID DIAZ ALLEGATIONS DO NOT
MEET THE STANDARD FOR NEWLY
DISCOVERED EVIDENCE OR
RECANTATION.
THE ALLEGED RECANTATION IS
NOTHING MORE THAN SEMANTICS.
AND ITS -- IT CERTAINLY
APPEARS TO ME FROM MY
READING OF IT THAT THAT'S
CORRECT.
WHY IS THAT NOT CORRECT?
YOU LOOK AT THE LAST TWO
PARAGRAPHS OF THE AFFIDAVIT,
AND IT REALLY ADDS TO
NOTHING MORE THAN SPECK --
SOME SORT OF DIFFERENT
SPECULATION THAT MR. GAUGES
IS, IS NOW SAYING THAT HE'S
MAKING.
NOW NEW FACTS, ARE THERE?
>> WELL, I THINK THERE'S NEW
FACTS IN THAT HE'S SAYING
THAT WHEN HE TESTIFIED THAT
MR. DIAZ WAS THE SHOOTER HE
REALLY DIDN'T KNOW WHO THE
SHOOTER WAS.
HE HAD NO INFORMATION --
>> HE NEVER SAID HE KNEW WHO
THE SHOOTER WAS.
HIS TESTIMONY IS CHROET QOETED
BY THIS COURT IN 1987.
92 THAT'S CORRECT.
WAS CORRECT,.
>> WHAT HE TESTIFYICIDE
BASED ON WHAT MR. DIAZ WAS
ACTING OUT TO HIM HE
INFERRED THAT MR. DIAZ WAS
THE SHOOTER.
THIS EVIDENCE WAS BEFORE THE
JURY.
THIS COURT AND THE TRIAL
COURT IN ITS SENTENCING
ORDER RELIED ON THAT IN
POINTING TO THE FACT THAT
THERE IS EVIDENCE THAT
MR. DIAZ IS THE SHOOTER
WITHOUT THE INFERENCE -- GO
AHEAD.
>> IN THE ORDER OF DECEMBER
1 ON PAGE 5, THE COURT ALSO
SAYS THE SENTENCING ORDER
SPECIFICALLY FOUND THAT
WHETHER DIAZ WAS ACTUALLY
THE SHOOTER OR NOT DID NOT
IMPACT THE FINAL RESULT.
THE OVERWHELMING EVIDENCE AT
TRIAL CONCLUSIVELY SHOWED
THAT DIAZ'S INVOLVEMENT
SUPPORTED THE JUDGMENT AT
SENTENCE.
SO THE SENTENCING ORDER WAS
NOT BASED ON WHETHER HE WAS
A SHOOTER.
IT WAS HIS INVOLVEMENT IN
THE CRIME, IN THE ROBBERY,
HIS PRESENCE DURING THE
SHOOTING.
SO WHY IS ANY -- EVEN IF WE
TAKE GAUGES' AFFIDAVIT AS
YOU SAY, WHY WOULD THAT
CHANGE THE RESULT?
>> WELL, I THINK THAT YOU
HAVE TO FOCUS ON WHAT
INFORMATION WAS BEFORE THE
SQLURY HERE.
IN ORDER TO -- JURY HERE.
IN ORDER TO DETERMINE
WHETHER IT WOULD HAVE MADE A
DIFFERENCE TO THE SENTENCE
IN PARTICULAR IS WHAT
INFORMATION THE JURY HAD.
I DON'T THINK THE PROPER
FOCUS IS WHAT THE TRIAL
COURT DID.
WE -- AS I WAS SAYING, WE
HAD AN 8-4 RECOMMENDATION
HERE, AND HAD THE JURY KNOWN
THAT MR. GAUGES WAS NOT
CREDIBLE, HAD THE JURY KNOWN
THAT WHAT WE NOW KNOWN NOW
THAT WE COULDN'T EVEN HAVE
DRAWN THESE INFERENCES.
>> SO THE FIND GDS IN A
SENTENCE ORDING ARE
IRRELEVANT.
>> I'M NOT SAYING THEY'RE
IRRELEVANT BUT WE HAVE TO
FOCUS ON WHAT THE EVIDENCE
THE JURY HAD BEFORE HIM.
>> BUT THE ZWLURY HAD NO
EVIDENCE THAT HE WAS THE
SHOOTER.
>> THEY DID --
>> THEY HAD SOMEONE WHO
INFERRED IT.
HOW IS THAT EVIDENCE HE WAS
THE SHOOTER SAYING I ASSUME
THERE'S NOTHING HE DID THAT
MADE ME ASSUME AND I JUST
ASSUMED IT.
SO NOW HE'S SAYISH HE WAS
WRONG IN HIS ASSUMPTION.
>> WELL I DON'T KNOW THAT IT
WAS -- SAYING THAT HE
ASSUMED IS, IS EVEN MORE
VAGUE THAN AN INFERENCE.
HE SPECIFICALLY TESTIFIED
THAT MR. DIAZ INDICATED THAT
HE SHOT THE MAN.
HE TESTIFIED THAT THE
INFERENCE WAS BASED ON
MR. DIAZ ACTING OUT THE
SHOOTING. WASN'T JUST WE WERE
HAVING CONVERSATIONS AND I
ASSUMED HE WAS THE SHOOTING.
HE -- HIS INFERENCE S HE
SAID AT TRIAL, WERE BASED ON
THE ACTIONS OF MR. DIAZ.
THE FACT OF THE MATTER IS
NOW THAT WE EVEN TAKE THAT
INFERENCE AWAY, HE HAD NO
INFORMATION ON WHICH TO COME
TO THE COURT AND TESTIFY
THAT MR. DIAZ --
>> DID THE STATE ARGUE THAT
DIAZ WAS THE SHOOTR?
>> NO.
IN FACT THE STATE IT WAS A
FELONY MURDER CASE AND THE
STATE DID SAY WE ARE NOT
GOING TO PRESENT ANY
EVIDENCE THAT HE WAS THE
DIRECT EVIDENCE THAT HE WAS
THE SHOOTER.
>> IN THIS COURT.
>> DID THNT COURT MAKE THE
DETERMINATION IN 1987 THAT
EVEN WITHOUT GAUGES'S
TESTIMONY THAT THERE WAS A
SUFFICIENT BASIS FOR AN
ENDMAN TYSON ANALYSIS THAT
WOULD SUPPORT THE DEATH
PENALTY?
THAT'S WHAT THIS COURT HELD,
RIGHT.
>> THAT'S CORRECT BUT AS I
WAS STATING TO JUSTICE
PAIRIENT AI I THINK THAT
ONLY GETS YOU OVER THE
HEARDTHALITY STATE CAN EXACT
THE DEATH PENALTY.
IT DOESN'T TAKE AWAY THE
FACT THAT THERE HAS TO BE A
WEIGHING OF AGGRAVATION AND
MITIGATION AND THE FACT THAT
MR. DIAZ WAS NOT THE
SHOOTING HERE CERTAINLY
WOULD HAVE BEEN NONSTATUTORY
MITIGATION THAT THE JURY WAS
ENTITLED TO HEAR.
>> WELL THIS COURT DEALT
WITH THAT, DIDN'T IT?
>> I'M SORRY?
>> THIS COURT DEALT WITH THE
FACT THAT MR. TORO RECEIVED
A SENTENCE THAT WAS NOT
DEATH.
THIS COURT DEALT WITH IT.
>> BUT THAT WAS ALSO BASED
ON THE ASSUMPTION THAT
MR. DIAZ COULD'VE BEEN THE
SHOOTER.
IN FACT JUSTICE BARNETT SAYS
IN HER CONCURRING OPINION IF
THERE IS EVIDENCE MR. DIAZ
IS NOT THE SHOOTER.
>> WHERE IS EVIDENCE THAT HE
WAS NOT THE SHOOTER.
>> WELL, THE FACT OF THE
MATTER IS THAT THERE IS NO
EVIDENCE THAT HE WAS.
THE ONLY EVIDENCE --
>> BUT IS EVIDENCE THAT
THERE WERE THREE PEOPLE IN
THE BARROOM, RIGHT?
>> CORRECT.
>> AND EVERYBODY ELSE WAS
LOCKED UP, THE BAR ROOM,
MCHINGER, WHATEVER CAME OUT.
>> NOT EVERYBODY WAS LOCKED
UP.
THERE WERE SOME WITNESSES AT
THE BAR.
>> BUT NOBODY WITNESSED THE
SHOOTING?
>> THAT'S NOT EXACTLY TRUE.
THERE WERE TWO
WITNESSESINATE BAR THAT
TESTIFIED AT TRIAL.
THEY BOTH -- IT WAS VERY
CONFUSING BECAUSE NOBODY
COULD MAKE A POSITIVE
IDENTIFICATION OF THE
ROBBERS.
HOWEVER THE WAY THAT THE
STATE WAS REFERING TO EACH
ROBBER AS ROBBER NUMBER 1,
ROBBER NUMBER 2, AND ROBBER
NUMBER 3, THEY MADE IT CLEAR
THAT THE PERSON THAT THEY
10ATIVELY I.D.'D AS DIAZ WAS
NOT THE PERSON WHO HAD THE
BAR MANAGER BACK BY THE BAR
MANAGER'S OFFICE.
>> FOR THE JURY --
>> THAT WAS ARGUED BEFORE
THE JURY?
>> YES, THE JURY HEARD THE
EVIDENCE --
>> SO THERE'S NO NEW
EVIDENCE IN REGARD OF THAT.
IN ALL THREE OF THE ROBBERS
HAD GUNS AND SHOT?
>> CORRECT.
>> CORRECT.
>> SO YOU STILL DON'T HAVE
ANYTHING THAT'S POINTING TO
SOMEBODY ELSE BEING THE
ACTUAL SHOOTER.
>> THERE WAS TESTIMONY AT
THE TRIAL THAT --
>> NEW, THERE'S NOTHING NEW.
>> THERE'S NOTHING NEW THAT
DEFINITIVELY SAYS THAT THE
CO-DEFENDANT WAS THE SHOOTER
HOWEVER I DON'T THINK WE CAN
GET AROUND THE FACT THAT THE
ONLY PERSON AT THE TRIAL
THAT INDICATED HE WAS NOW
SAYS THAT'S NOT TRUE.
THIS WAS A CONCERN OF THE
JURIES.
THEY DID IN FACT ASK FOR THE
TESTIMONY OF MR. GAUGES AND
ASK FOR THE TESTIMONY OF THE
WITNESSING INDICATING THAT
COCO-DEFENDANT WAS THE
SHOOTER.
>> MR. ANISTON.
>> YOU HAVE NOT TOUCHED ON
ANY OF THE OTHER POINTS SO
PLEASE BE RESPONSE TO YOUR
RESPOND TO MR. ANSTEAD.
>> BECAUSE YOU ARE IN YOUR
REBUTTAL IF YOU HAD ANOTHER
POINT YOU WANTED TO MAKE
I'LL WAIVE MY QUESTION.
DO YOU HAVE SOMETHING THAT
IS ABSOLUTELY.
>> I JUST WOULD LIKE TO
EMPHASIZE TO THE COURT THE
TREATMENT OF PUBLIC RECORDS
IN THE TRIAL COURT BELOW
THAT I DO THINK IT WAS A
COMPLETE ABUSE OF DISCRETION
THAT THEY CUT -- THAT THE
TRIAL COURT CUT OFF OUR TIME
FOR REQUESTING RECORDS UNDER
A RULE WHICH IS SPECIFICALLY
DESIGNATED FOR A WARRANT
SITUATION.
>> IN ADDITION TO CITING
EXTENSIVELY FROM THE
SENTENCING ORDER THAT
DISCOUNTED RECEIPT REALLY
THAT YOU ARE CLIENT WAS THE
SHOOTER BUT WENT AHEAD WITH
HIS MAJOR PARTICIPATION IN
THIS ARMED ROBBERY AND THE
DEATH OF THE, OF THE VICTIM,
THE CLOSING PARAGRAPH OF THE
TRIAL COURT IS JUST A COUPLE
OF SENTENCES LONG.
AND IT SAYS, GIVEN THAT
THREE WITNESSES TESTIFIED
THAT DIAZ WAS NOT THE
SHOOTER IT CANNOT BE SAID
THAT GAUGE'S TESTIMONY THAT
HE INFERRED THAT DIAZ WAS
THE SHOOTER QUASI-OF ANY
CONSEQUENCE.
THE JURY WAS APT TO BELIEVE
THE THREE WITNESSES WHO
TESTIFIED CONSISTENTLY
RATHER THAN GAUGES WHO
INFERRED HE WAS THE SHOOTER.
DESPITE THE TESTIMONY OF THE
THREE WITNESSES THE MAJORITY
OF THE JURY RECOMMEND
ADSENTENCE OF DEATH.
WHAT IS YOUR COMMENT ON THE
JUDGE'S CLOSING PARAGRAPH.
>> WELL I THINK TO SAY THAT
GAUJ'S TESTIMONY WAS
INCONSEQUENTIAL IGNORES THE
FACT THAT THE STATE DID FEEL
COMPELLED TO PRESENT HIS
TESTIMONY.
IT ALSO IT IGNORES THE FACT
THAT THE JURY DID IN FACT
REQUEST TO SEE HIS
TESTIMONY.
THEY WERE CONCERNED ABOUT
HIS TESTIMONY.
AND SO I DON'T THINK THAT
YOU CAN SAY THAT THE ONE
PERSON INDICATING HE WAS THE
SHOOTER --
>> BUT YOU AGREE THAT THE
STATE HAD NOT ARGUED THAT
YOURT CLIENT WAS THE SHOOTR?
>> I AGREE THAT THEY HAD, I
BELIEVE IN THEIR OPENING AND
THEIR CLOSING THEY SAY WE
HAVEN'T PRESENTED DEFINITIVE
EVIDENCE THAT HE WAS THE
SHOOTER BUT THEY DID PRESENT
RALPH GAUGES.
>> MAY IT PLEASE THE COURT
SANDRA DAGGERT ASSISTANT
ATTORNEY GENERAL ON BEHALF
OF THE STATE.
AS THIS COURT HAS RECOGNIZED,
THE INFORMATION ABOUT
MR. GAUGES WAS SIMPLY AN
INFERENCE.
MR. GAUGES STILL SAYS THAT
HE ACTED IT OUT.
HE'S JUST SAYING RECANTING
THE INFERENCE.
THE CLAIM --
>> CAN I JUST ON THAT -- AND
IT MAY END UP BEING NOTHING.
BUT ON DIRECT APPEAL, THE
TESTIMONY WHICH WAS REPEATED
WAS WHERE DID HE INDICATE --
DIAZ INDICATE HE SHOT THE
MAN.
WHERE DID HE INDICATE HE
SHOT THE MAN?
IN THE CHEST.
DID HE EVER COME OUT TO YOU
AND SAY IN THE WORDS THAT HE
SHOT THE MAN IN THE CHEST?
NO HE DIDN'T.
YOU WERE INFERRING THAT FROM
HIS INDICATIONS MEANING HIS
ACTIONS.
>> YEAH.
>> SO THE STATE PRESENTED
THAT WITNESS.
>> YES.
>> FOR WHAT PURPOSE?
>> TO HAVE ADDITIONAL
EVIDENCE, WE HAD VICTIMS WHO
COULD NOT IDENTIFY THE
SHOOTERS.
THEY ONLY ONE OF THEM COULD
EVEN GIVE A TENTIVE IDEA OF
WHO WAS IN THE BAR.
WE HAD A FINGERPRINT OF
MR. DIAZ AND SEVERAL
FINGERPRINTS OF MR. TORO.
WE HAD THE VICTIMS AT THE
ASIDE OF TIME FOR PLACE
ASIDE FROM HIDING UNDER THE
BAR OR LOCKED IN THE
BATHROOM AND DON'T SEE
ANYTHING.
>> SO THE WAY I SEE THAT
IT'S NOT INCONSEQUENTIAL
TESTIMONY.
WOULD YOU AT LEAST -- AGREE
WITH THAT THE JURY HEARING
THAT CERTAINLY COULD HAVE
DETERMINED BASED ON WHAT
GAUGES SAID WHETHER WE THINK
IT MADE A DIFFERENCE FOR THE!!!!!!
THENTMAN-TYSON ANALYSIS THAT
DIAZ WAS THE SHOOTER.
>> WELL YOU HAVE TO REMEMBER
THAT MR. GAUGES DID NOT JUST
TESTIFY ABOUT THIS
INFERENCE.
HE TESTIFIES ABOUT HOW THE
DEFENDANT TOLD HIM HE WAS
GOING TO GET OFF BECAUSE HE
THREATAND WINS NAMED KANTEDY.
THERE WAS A WITNESS NAMED
KANTEDY, CANDICE BRAWN WHO
WAS THREATENED.
SO THAT BOLTERS -- BOLSTERS
HER TESTIMONY.
SHE AGREED TO TESTIFY.
RECANTED AND RECANTED BACK
SO BOLSTERING HER TESTIMONY
WAS IMPORTANT.
MR. GAUGES TOLD HIM THEY
WERE IN THE BAR COMMITTING
THIS ROBBERY AND THE
SHOOTING OCCURRED.
THAT AGAIN SHOWS THAT THE
DEFENDANT'S GUILTY AND WHEN
YOU DON'T HAVE WITNESSES WHO
CAN IDENTIFY PEOPLE, YOU
HAVE MS. BROWN WHO'S GOING
BACK AND FORTH.
PRESENTING SOMEONE TO
BOLSTER THE TESTIMONY IS
IMPORTANT.
>> SO DO YOU SEE HIS
AFFIDAVIT AS BEING ON THIS
POINT A VARRIANT OF HIS
TRIAL TESTIMONY OR IN FACT
IT IS AT LEAST INCONSISTANT
WITH HIS TRIAL TESTIMONY.
NOW THERE MAY BE SOME
INFORMATION ABOUT WHETHER
GAUGES HIMSELF IS CREDIBLE
OR NOT BUT WE CAN'T --
>> I UNDERSTAND.
IT CERTAINLY'S INCONSISTENT
ON WHETHER HE'S DRAWING THE
INFERENCE OR NOT HOWEVER YOU
THEN YOU GET TO THE 1989 FOR
POST CONVICTION RELIEF WHERE
MR. GAUGES NEVER ADMITTED
DUMPLICITY.
WHETHER THREATENING CANDY IS
COMPLICITY ADMITTING YOU ARE
IN THE BAR AND THE SHOOTING
TOOK PLACE.
>> -- A TRIAL HE DIDN'T COME
OUT AND SAY I SHOT THE MAN
IN THE CHEST.
HE INFERRED IT FROM HIS
INDICATIONS.
HE IS NOW SAYING IN HIS
AFFIDAVIT.
>> I DIDN'T INFER IT.
I DIDN'T SAY IT.
I LIED WHEN I SAID I
INFERRED IT.
>> SO HE DOESN'T RECANT THE
PART WHERE HE SAYS DIAZ SAYS
--
>> NO, HE SAID MR. DIAZ DID
ACT OUT THE SHOOTING TO HIM.
I'M LYING WHEN I SAID I
INFERRED T. THAT'S ALL HE
SAYS.
>> YOU KNOW PROBABLY BETTER
THAN, THAN WE BECAUSE IF
YOU'RE FAMILIARITY WITH THE
RECORD.
HOW MUCH OF AN ISSUETHEM
IDENTITY OF THE SHOOTER OR
WHO THE SHOOTER WAS AT
TRIAL.
CAN YOU HELP US WITH THAT IN
TERMS OF THE STATE'S
ASSERTIONS, THE STATE'S --
>> THE STATE'S --
>> RELIANCE ON THIS AND THEN
THE DEFENSE SAYING MY CLIENT
UNDER ANY SCENARIO WAS NOT
THE SHOOTER, THEREFORE, YOU
SHOULD RECOMMEND LIFE.
WHAT -- TELL US WHAT, WHAT
WENT ON WITH REFERENCE TO
THE RELEVANCE OR IRRELEVANCE
OF WHO THE SHOOTER WAS?
>> THE STATE'S POSITION WAS
BASICALLY WE CAN'T TELL YOU
WHO THE SHOOTER WAS.
THERE IS THIS EVIDENCE FROM
CANDEN BRAWN WAS TORO IS THE
SHOOTER THERE IS EVIDENCE
FROM RALPH GAJDS IS THE
SHOOTER.
WE DON'T KNOW.
IT DOESN'T MATTER.
HE WAS A MAJOR PARTICIPANT
IN THIS CRIME.
>> SO IT WAS THE ARGUMENT OF
THE STATE THAT IT DIDN'T
MATTER HE WAS A MAJOR
PARTICIPANT IN THIS CRIME
THAT HE WAS A MAJOR --
>> IN YOUR PROPORTIONALITY
ANALYSIS ON DIRECT APPEAL
YOU SAY ASSUMING THERE'S
INSUFFICIENT EFRDS THAT HE'S
THE SHOOTER IT DOESN'T
MATTER.
>> WHAT WAS THE ARGUMENT OF
THE DEFENDANT IN PLEADING TO
THE JURY FOR LIFE?
>> THE DEFENDANT'S ARGUMENT
WAS THAT TORO WAS THE
SHOOTER AND TORO HAD GOTTEN
LIFE BUT HE DIDN'T WANT TO
GET INTO THE PLEA BECAUSE
THE REASON THE STATE HAD
GIVE THP PLEA, THE STATE
SAID IF HE GO THERE, WE WANT
TO PRESENT OUR REASONS FOR
OFFERING THAT PLEA AND THE
REASONS FOR OFFERING THAT
PLEA IS HE'S THREATENED
THESE WITNESSES AND HE HAD
APEDY TRIAL CLAIMPENEDDING
AND THEREFORE WE HAD TO GIVE
HIM SOMETHING OR WE WOULD'VE
HAD TO DISMISS OUR CASE.
AND THE DEFENSE DID WANT
WANT US BRINGING OUT ALL THE
THREATS TO THE WITNESSES AND
SO THEY DROPPED THE, DROPPED
IT AT THAT POINT WHICH IS
WHY WHEN WE GET TO
SENTENCING, THE DEFENSE ENDS
UP AGREEING TO US FILING A
WRITTEN PROPER.
>> BUT THE RECORD IS CLEAR
THAT THE STATE DID NOT LELIE
-- RELY ON HIM BEING THE
SHOOTER FOR ITS CLAIM THAT
HE SHOULD RECEIVE THIS --
>> NOT THAT I RECALL.
>> I GUESS THE QUESTION JUST
ON THIS.
HOW COULD THEN -- IF HE'S
NOT THE SHOOTER AND TORO IS,
HOW IS HE, AND IT MAY OR MAY
NOT MATTER, THE MORE
CULPABLE OF THE TWO
PERPETRATORS?
>> WELL, THIS COURT SAID
THAT WHEN THE STATE PLEASE
SOMEONE OUT TDOESN'T MATTER.
ON WHEN YOU ANALYZE THIS,
WHEN YOU HAD IT ON DIRECT
APPEAL.
AND YOU SAID DIRECTLY, EVEN
ASSUMING WE'VE ALREADY
DECIDED THE ENDMAN-TYSON
ISSUE AND IT DOESN'T MATTER
TO US THAT TORO MAY BE THE
SHOOTER.
EVEN ASSUMING THAT DIAZ
WASN'T THE SHOOTER, TORO'S
PLEA DOESN'T MATTER TO US.
YOU DIRECTLY SAID IT WHEN
YOU ANALYZED THIS ISSUE ON
DIRECT APPEAL.
>> SO TORO HAVING RECEIVED
THE PLEA TO SECOND DEGREE,
IT DOESN'T MATTER IF TORO
WAS THE SHOOTER FOR THE
COURT'S ANALYSIS.
NOW, I GUESS IT GOES BACK TO
THEN THE PROBABILITY OF A
LIFE SENTENCE IF THE COURT'S
PROPORTIONALITY ANALYSIS
WOULDN'T BE ANY DIFFERENT.
NOW WE JUST GO BACK TO --
DOES IT GO TO ANIYINGIVATOR
OR MITIGATOR IN THE --
>> WELL, AGAIN, THERE WAS A
TRAITOFF THERE AT THE TIME
OF TRIAL.
THE DEFENSE MADE THAT THEY
WEREN'T GOING TO GET INTO
THE FACT OF TORO'S PLEA
BECAUSE THEY DIDN'T WANT US
TO GO INTO THE REASONS FOR
TORO'S PLEA BECAUSE THE
DEFENDANT WAS IMPLICATED IN
THESE THREATS.
HE TOLD GAUGES HE WAS
IMPLICATING IN THESE THREATS
THEN YOU HAVE EVIDENCE
PRESENTED TO THE JURY THAT
HE'S BUSY THREATENING
WITNESSES.
>> I THOUGHT YOU SAID GAUGES
TESTIFIED AT TRIAL TO THE
THREATS.
>> GAUGES TESTIFIED THAT
THEY TOLD HIM ABOUT THREATS.
THEY THREATENED MORE THAN
ONE WITNESS AND THE EXTENT
OF THE THREATS, MS. -- THE
DEFENDANT BROUGHT OUT SOME
OF THE THREATS WITH
MS. BRAWN WHEN HE WAS
CROSS-EXAMINING HER BUT THE
EXTENT OF THE THREATS DIDN'T
COME OUT AND THEY DIDN'T
WANT US GETTING UP AND
EXPLAINING WHAT HAPPENED AND
WHY IT IS THAT TORO HAS A
LIFE SENTENCE F. WE HADN'T
HAD A PROBLEM WITH THE
WITNESSES TORO WAS -- WE
WOULD'VE SOUGHT DEATH ON
TORO TOO.
>> FROM THE STATE'S
PERSPECTIVE 27 YEARS LAETEDER
DO WE HAVE ANY BETTER IDEA
WHO THE SHOOTER WAS?
>> NO.
THE WITNESSES WERE STILL
LOCKED IN THE BATHROOM OR
HIDING UNDER THE BAR.
THEY DIDN'T SEE THE SHOOTER.
YOU HAVE CANDICE BRAWN
SAYING THE DEFENDANT TOLD ME
TORO WAS THE SHOOTER AND I
OVERHEARD THIS ARGUMENT FROM
WHICH I INFERRED THAT TORO
WAS THE SHOOTER.
BECAUSE EVERYBODY SEEMED TO
BE YELLING AT HIM.
AND WE HAVE GAUGES SAYING
THE DEFENDANT TOLD ME IT WAS
HEART OF HIS -- PART OF THIS
CRIME AND I INFERRED HE WAS
WHICH GAUGES AND -- GAUGES
HAS BEEN RECANTING THAT
SINCE 89 SO TO CALL IT NEWLY
DISCOVERED EVIDENCE AT THIS
POINT.
>> BUT IN 89, WE REALLY
DIDN'T HAVE ANY EVIDENCE
THAT WAS REALLY PRESENTED.
AS I RECALL, THE ATTORNEY --
MADE AN ALLEGATION THAN A
PRIOR ATTORNEY HAD -- HE HAD
-- THERE WAS NEVER REALLY
ANY EVIDENCE PRODUCED OF
THAT, WAS IT.
>> WELL, BECAUSE WE ACCEPT
THAT THAT IS TRUE AND
SUMMARILY DENIED IT FOR THE
VERY REASON THE STATE URGES
YOU TO AFFIRM THE SUMMARY OF
DENIAL TODAY YOU HAVE --
AFFIRMED THE SUMMARY DENILE
WHEN IT WAS A BRADY CLAIM
WHEN YOU HAD TO ACCEPT THAT
ALLEGATION THAT GAUGES HAD
SAID DEFENDANT NEVER
ADMITTED ANYTHING COMPLICITY
TO HIM AND YOU'VE, YOU NOW
HAVE A LESSER RECANTATION
THAN THAT BOLD STATEMENT
BECAUSE THAT WOULD TAKE OUT
THE CANDICE BRAWN, THAT
WOULD TAKE THE ADMISSION TO
BEING IN THE BAR WHEN HE
SAID NO COMPLICITY.
COMPLICITY WOULD MEAN I HAVE
NOTHING TO DO THIS CRIME AND
THAT WAS THE ALLEGATION THEY
SAID WE HAVE TO SAY IS TRUE.
SO IF IT DIDN'T MEET THE
BRADY STANDARD OF A
REASONABLE PRAEBLT OF A
DIFFERENT OUTCOME IT DOESN'T
MEET THE NEW STANDARD OF A
PROBABILITY OF DIFFERENT
OUTCOME WITH THIS COURT JUST
DESCRIBED LAST WEEK AS A
STRINGENT STANDARD.
THE COURT HAS NO FURTHER --
>> WELL, WOULD YOU -- I
THINK SHE HAS ADDRESSED THE
ISSUE OF THE RECORDS AND WE
ARE SEEING THIS ON A
REPETITIVE BASIS WITH REGARD
TO SOME CHANGES THAT, THAT
ARE ALLEGEDLY OCCURRING WITH
RECALL TO PROTOCOLS AND
THOSE KIND OF THINGS AND
THERE SEEMS TO BE A RUNNING
DISCUSSION GOING ON SO COULD
YOU ADDRESS THAT AS WELL?
>> WELL, MY OPPONENT IN HER
BRIEF TALKS ABOUT HOW THESE
RECORDS PREVENTED HER FROM
CENTRING THE EXPERT DOING
THE ANALYSIS THE STATE'S
POSITION IS MOTION SHOULD BE
-- YOU CAN FILE AN I REQUEST
AT ANY TIME ALL YOU HAVE TO
DO IS SHOW THAET IT'S
CALCULATED TO LEAD TO THE
DISCOVERY OF A CLAIM.
THEREFORE, THE CLAIM, THE
MOTION, THE REQUEST SHOULD
HAVE BEEN MADE BEFORE YOU
SHOW UP AT THE HUFF HEARING
ON YOUR MOTION.
SECONDLY, MY OPPONENT AT THE
NOVEMBER 17th HEARING
ADMITTED THAT SHE HAS THE
AUTOPSY REPORTS FROM 2000 TO
2005.
SHE COULD'VE PRESENTED THOSE
TO HER EXPERT AND HAD HIM
EVILY!!IUATE THOSE.
SHE'S TALKING ABOUT ONLY THE
THREE MOST RECENT AUTOPSY
REQUESTS BUT BY THE WAY SHE
THEN TURNED AROUND AND ASKED
DOC AND THE ATTORNEY
GENERAL'S OFFICE FOR THE
AUTOPSY REQUESTS.
THESE REQUESTS WENT ON FOR
PAGES.
THEY WERE VASTLY OVERBROAD.
THEY WERE UNTIMELY.
AND THE STATE'S POSITION IS
THE TRIAL COURT DIDN'T ABUSE
ITS DISCRETION PARTICULARLY
CONSIDERING THAT THIS COURT
HAS REJECTED THESE PUBLIC
RECORD CLAIMS IN ROTHERFORD,
HILL, AND RAULEN.
>> I THINK WHAT THE QUESTION
I HAVE ABOUT THE PROTOCOL IS
AT THE END OF RUTHERFORD OR
HALL IS THAT THERE HAS BEEN
WHAT APPEARED TO BE AN
INCREASE IN THE AMOUNT OF
ONE OF THE DRUGS.
WHAT IS THE STATE OF THE
RECORD ON THAT?
>> WELL THE STATE OF THE
RECORD ON THAT IS IN YOUR
SIMS OPINION WHAT YOU SAID
THE TESTIMONY WAS.
AND WHAT THE TESTIMONY WAS
THAT THE SODIUM PENTHOL
WOULD BE IN SYRINGES.
THE NEW PROTOCOL OR
ALLEGEDLY NEW PROTOCOL
DIRECTLY SAYS IT'S TWO
SYRINGES.
THERE'S NO CHANGE JUST
CLARIFICATION OF THE
LANGUAGE.
>> MORE SPECIFIC AS TO --
>> WE NEVER SAID THERE WERE
TWO.
WE SAID TWO SYRINGES
CONTAINING NO LESS THAN TWO.
THEY INTERPRETED THAT AS
TWO.
TWO SYRINGES CONTAINING 2.5
ARE NOT TWO SYRINGEDS
CONTAINING LESS THAN TWO.
>> IF IN FACT IT'S A LITTLE
BIT MORE.
>> WELL, THEY'RE THE SAME
STATEMENT.
ONE IS CLEARER THAN THE
OTHER BUT THEY'RE BOTH THE
SAME STATEMENT.
TWO SYRINGES NO LESS THAN
TWO, THEY INTERPRET THAT AS
TWO.
NO LESS THAN TWO IS WHAT WE
SAID.
FIVE ISN'T LESS THAN FIVE.
>> HOW DOES IF AT SOME POINT
WLL WE'RE AT THE CONTROVERSY
CONTINUES THAT THERE COULD
BOW A RISK OF CONSTANT PAIN,
WHAT MECHANISM DOES THE
COURT HAVE TO MONITOR THAT?
I MEAN WE DON'T WANT TO BE
INTERFERING WITH EACH AND
EVERY EXECUTION.
I RECALL AT THE END OF THE,
WHEN THE ELECTRIC CHAIR WE
WERE HAVE THE STATE FILE
UPDATES ON HOW, YOU KNOW,
WHAT WAS BEING DONE TO
REVIEW IT.
CAN YOU UAS AN OFFICER OF
THE COURT TELL US IF YOU
HAVE ANY INFORMATION AS TO
WHETHER THIS IS AN ONGOING
CONCERN OF THE DOC AND THE
STATE OR IF YOU HAVE ANY
EVIDENCE ABOUT THAT AT ALL?
>> THE STATE'S POSITION IS,
THE STATE OF THINGS HASN'T
CHANGED SINCE SIMS.
IF THEY COME UP WITH SOME
ACTUALLY NEWLY DISCOVERED
EVIDENCE THAT THERE WAS A
PROBLEM PERHAPS IT WOULD BE
TIME TO LOOK AT IT AGAIN.
THEY HAVE NOT DONE THAT.
ALL THEY HAVE COME OUT WITH
SPECULATION OUT AFFA LANSET
ARTICLE PUBLISHED MORE THAN
A YEAR BEFORE THEY FILED
THEIR ARTICLE.
SPECULATION FROM WHY THE
SPECULATION MIGHT BE TRUE
FROM A LETTER THAT WAS
PRESENTED A LETTER TO THE
EDITOR AFTER THE LANSET
ARTICLE.
THEY ADMIT THEY HAVE THE
AUTOPSY REPORTS FROM 2000 TO
2005.
THEY COULD GIVE THEM TO AN
EXPERT AND HAVE THE EXPERT
TELL THEM WHETHER OR NOT
THERE'S A PROBLEM AND THEN
TIMELY PRESENT THAT CLAIM.
IF THEY HAVE ANY EVIDENCE OF
A PROBLEM.
AND THE STATE'S POSITION IS
THAT, THAT, YOU KNOW, THE
REASON YOU HAD THE, THE
HEARINGS ON THE ELECTRIC
CHAIR IS THERE WAS EVIDENCE
THERE WAS A PROBLEM.
THERE HAD BEEN FLAMES THEN
YOU HAD CHART READINGS AND
THE CHART MEETINGS DIDN'T
MATCH WHAT THEY WERE GOING
TO MATCH.
THERE'S NOTHING HERE BUT
SPECULATION ABOUT WHAT MIGHT
HAPPEN SO UNTIL AND UNLESS
THEY COME UP WITH SOME
ACTUALLY NEWLY DISCOVERED
EVIDENCE THAT THEY PRESENT
DILIGENTLY FROM WITHIN A
YEAR OF WHEN THEY COULD'VE
DISCOVERED IT, THERE'S
NOTHING TO CONSIDER.
92 THE -- APPEERS THAT THE
ARGUMENT, AND IT IS BECOMING
REPETITIVE IN MULTIUAL CASES
IS THAT THEY DON'T HAVE THE
INFORMATION AND YOU'RE TODAY
SAYING THIS RECORD
DEMONSTRATES THAT THAT
INFORMATION IS AVAILABLE.
IT'S THERE.
AND THAT'S NOT A MERITORIOUS
ARGUMENT.
CERTAINLY WE WOULD KNOW IT
WOULD HAVE TO HAVE
DOCUMENTATION BEFORE YOU CAN
WHETHER WHAT'S HAPPENING IS
THE SAME OR NOT.
SO THE RECORD HERE DOES
DEMONSTRATE THAT ALL OF THE
DOCUMENTS NECESSARY HAVE,
HAVE BEEN MADE AVAILABLE IN.
>> CERTAINLY NOT ALL OF THE
DOCUMENTS THEY WANT.
>> WELL, SUFFICIENT
DOCUMENTATION IS AVAILABLE?
>> BUT,
[INAUDIBLE]
PAGE 23 OF THE NOVEMBER 17th
WHEN THEY'RE COMPLAINING
ABOUT ME REPRESENTING THE
AGENCIES THEY SAY THE
MEDICAL EXAMINER OF THE
EIGHTH DISTRICT SENT THUS
AUTOPSY REPORTS BEFORE THE
LAST THREE.
SO THEY HAVE THOSE AUTOPSY
REPORTS.
UNLESS THE KOURLT HAS ANY
OTHER QUESTIONS THE STATE
RESPECTFULLY REQUESTS YOU
DENY ALL OF THESE.
>> THANK YOU.
REBUTTAL?
>> I'M GOING TO START WITH
THE LETHAL INJECTION SINCE I
DIDN'T HAVE MUCH COMMENT ON
THAT EARLIER.
SPECIFICALLY WITH REGARDS TO
THE PUBLIC RECORDS, THIS IS
DISTINGUISHABLE FROM HILL,
RURTHFORD, AND ROWELING
THOSE WERE DENIED ON
PROCEDURAL GROUNDS.
THEY WERE REQUEST UNDER H 3
WHICH REQUIRES THE RECORDS
HAD BEEN PREVIOUSLY
REQUESTED TO THE AGENCY
PRIOR TO A WARRANT BEING
SIGNED.
THAT'S NOT THE SITUATION
LEER.
OUR RECORDS WERE REQUIRED
UNDER 3.25 I AND THAT'S
DIFFERENT THAN H 3.
WE FILED THESE BEFORE THE
WARRANT WAS SIGNED.
WE HAD IT UNDER I IT'S
REQUIRED THEY ARE RELEVANT
TO THE SUBJECT MATTER OF A
PENDING POST CONVICTION
PROCEEDING.
>> DID THE TRIAL COURT FIND
THAT THE QUEST WAS
OVERBROAD?
>> THEY DID FIND IT WAS
OVERBROAD BUT I WOULD SAY
THAT OUR REQUESTS WERE VERY
SPECIFIC.
ASKING FOR ONLY THOSE
DOCUMENTS THAT WE WERE ABLE
IN LOOKING AT THE NEW
PROTOCOL WE WERE ABLE TO, TO
FIGURE OUT THAT IN FACT THE
STATE MAY HAVE -- THEY HAVE
THESE DOCUMENTS.
THEY SAY THEY'RE KEEPING
CHECKLISTS OF THE EXECUTION
SO WHERE ARE THE CHECK LISTS
IN HILL, RURTHFORD, AND
ROWELING.
I WOULD ARGUE MR. DIAZ IS
ENTITLED TO THOSE DOCUMENTS
AND WE DON'T HAVE THEM.
>> THEY SAID PROTOCOL SO THE
PROTOCOMIS NOT SOME KIND OF
SECRET UNKNOWN THING.
YOU DO HAVE THAT?
>> OBVIOUSLY, THE STATE
PROVIDED IN RUTHERFORD.
THE PROBLEM IS THE NEW
PROTOCOL GENNERATES SO MANY
ADDITIONAL QUESTIONS T.
TALKS ABOUT THE THAT THE
WARDEN HAS DISCRETION TO
SELECT EXECUTIONERS AND MAKE
SURE THEY'RE PROPERLY
TRAINED BUT WHAT KIND OF
TRAIN DOING THEY RECEIVE?
DO THEY HAVE MEDICAL
TRAINING?
>> THE STATE SEEMS TO
SUGGEST THAT THERE REALLY
ISN'T A NEW PROTOCOL.
THAT ORIGINAL PROTOCOL SAID
NO LESS THAN TWO AND THAT
THIS WHAT YOU SEE NOW SAYS
2.5.
BUT IS NOT INCONSISTENT WITH
THE ORIGINAL PROTOCOL THAT
WAS, WAS ACTUALLY DISCUSSED
IN SIMS.
>> IN SIMS, THE
UNDERSTANDING WAS THAT IT
WAS TWO GRAMS.
THAT WAS THE UNDERSTANDING
SIMS.
THAT'S NOT AN UNDERSTANDING
THAT THE DEFENDANT IS
CREATING.
THE FACT OF THE MATTER THAT
IT'S NOW FIVE GRAMS STILL
DOESN'T REMEDY THEPROBLEM OF
THE ADMINISTRATION OF THE
SODIUM APPENTHOL AND IT DOES
ELIMINATE THE PROBLEM THAT
THE ANESTHESIA MAY WEAR OFF.
I HAVE CITED IN TESTIMONY
BELOW AND IN MY BRIEF MY
TESTIMONY OUT OF CALIFORNIA.
THERE IS SWORN TESTIMONY
FROM DOCTORS, EXPERTS,
EYEWITNESSES IN CALIFORNIA,
INDICATING THAT EVEN FIVE
GRAMS IS INSUFFICIENTANT AND
THAT IT IS LIKELY THAT IT
WEARS OFF IN THESE
CIRCUMSTANCES.
THE MAJOR DIFFERENCE HERE,
YOU KNOW, THE NEW PROTOCOL,
ITS IT POINTS TO MANY
ADDITIONAL THINGS THAT
GENERATE MORE QUESTIONS.
BUT THE FACT OF THE MATTER
IS HERE, SINCE SIMS THERE
HAS BEEN 19 EXECUTIONS.
IN SIMS THERE WAS NO
EYEWITNESS TESTIMONY TO THE
EXECUTIONS.
THE DIFFERENCE IS IN
CALIFORNIA, WE NOW HAVE THAT
EYEWITNESS TESTIMONY.
AND THAT IS THE STATE THAT
-- WHOSE PROCEDURES ARE
SIMILAR TO FLORIDA.
>> WITH OUR ASSISTANCE YOU
HAVE UTILIZED ALL OF YOUR
TIME.
THANK YOU VERY MUCH.
FOR THE WELL DONE ARGUMENTS
AND WE WILL TAKE THE CASE
UNDER ADVISEMENT.
THANK YOU.