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.

James Franklin Rose v. State of Florida

SC06-473

>>>.
>> GOOD MORNING, GOOD
MORNING.
>> LADIES AND GENTLEMEN, THE
FLORIDA SUPREME COURT,ES MR.
BE SEATED.
>> FINAL CASE ON OUR
CALENDAR THIS MORNING IS
ROSE VERSUS STATE OF FLORIDA!!$$!!!!!!!!!!!!
FLORIDA.
BELIEVE HAMMER?
.
>> YES, YOUR HONOR, MORNING
YOUR HONOR, MAY IT PLEASE
THE COURT, THIS CASE --
STEPHEN HAMMER, ROSE IS NOW
ON DEATH ROW THIS ORIGINATES
FROM -- 30 YEARS AGO, HAS
BEEN SENTENCED TO DEATH A
NUMBER OF TIMES, THIS IS HIS
THIRD DEATH SENTENCED WE ARE
HERE TODAY, ASKING THE COURT
TO GIVE SEND US BACK TO
TRIAL FOR EVIDENTIARY
HEARING ON THE ISSUES THAT
ARE RAISED IN OUR ORIGINAL
ADMONITION AS WELL AS IN OUR
BRIEF THERE, WERE FOUR
ISSUES THAT WE TALKED ABOUT,
THAT WE SAY WE DESERVE AN
EVIDENTIARY HEARING ON, THE
FIRST BEING THE SITUATION
WITH THE EEPG STATEMENT --
OPENINGS STATEMENT, WHERE
THE PROSECUTOR MAKES A
COMMENT ON MR. ROSE'S RIGHT
TO REMAIN SILENT DURING THE
COURSE OF OPENING, HE SAYS
AT SOME POINT, MR. ROSE,
TERMINATE THEY HAD
CONVERSATION WITH LAW
ENFORCEMENT!!$$!!!!!!!!!!!!!!!!!!!!
ENFORCEMENT.
>> THIS STATEMENT, TOOK
PLACE, AT A SENTENCING
HEARING.
>> THAT IS CORRECT.
>> AS OPPOSED TO AT THE
BEGINNING OF THE GUILTY
PHASE OF THE TRIAL SO SHOULD
THAT MAKE A DIFFERENCE HERE
SINCE WE ARE NOT REALLY
TALKING ABOUT THE $$
DEFENDANT'S GUILTY OR
INNOCENCE!!$$!!!!!!!!!!!!!!!!
INNOCENCE, OF THE CHARGED
OFFENSE!!$$!!!!!!!!!!!!
OFFENSE.
>> IT DOES MAKE A
DIFFERENCE, I WILL TELL YOU,
WHY AND A LOT OF THIEVES
FACTORS!!$$!!!!!!!!!!!!
FACTORS, THAT WE ARE GOING
TO ADDRESS, BASICALLY, GOES
TO GUILT PHASE HOW, NEVER
THIS CASE, HOW NEVER US THE
CASE STATE REPEATED GUILT
PHASE THE REASON THIS CASE
AT THE TIME 30 YEARS OLD,
TRIED IN THE 70S, MR. ROSE
WAS TRIED, CONVICTED BY JURY
TRIED BY A JURY THE FIRST
TIME, HUNG JURY, SO MISTRIAL!!$$!!!!!!!!!!!!!!
MISTRIAL.
>> BUT --
>> YOU HAVE TO START WITH
THE PROPOSITION, HERE THAT
HE WAS ALREADY CONVICTED,
AND HIS CONVICTION WAS
AFFIRMED!!$$!!!!!!!!!!!!!!
AFFIRMED, FOR THE
FIRST-DEGREE MURDER.
>> ABSOLUTELY YOU ARE RIGHT
-- THE THING HERE THOUGH IS
THE STATE WENT THROUGH
PAINSTAKINGLY THROUGH ALL
THE WITNESSES THAT THEY
PRESENTED IN THE GUILT PHASE
SO BASICALLY IT WAS -- THE
GUILT PHASE, BECAUSE --
STATE -- THAT THEY WERE
TRYING TO CONVINCE THIS JURY
NEW JURY 30 YEARS LATER,
THAT THE TWO AGGRAVATING
FACTORS!!$$!!!!!!!!!!!!
FACTORS, AS WE'LL AS THE
CRIME WAS COMMITTED DURING
THE COURSE OF THE KIDNAPPING!!$$!!!!!!!!!!!!!!!!!!
KIDNAPPING, SO THAT THEY
COULD ESTABLISH THOSE TWO
AGGRAVATING FACTS OR
BASICALLY RETRIED THE CASE
TO CONVINCE JURY THIS WAS A
KIDNAPPING!!$$!!!!!!!!!!!!!!!!!!
KIDNAPPING, AND THE
KIDNAPPING EVEN THOUGH FOUND
GUILTY OF KIDNAPPING THEY
SPENT A LOT OF TIME, TRYING
TO CONVINCE "THE JURY"Y
SAYING, THIS MURDER OCCURRED
DURING THE COURSE OFKIDS
NAPPING THE AGGRAVATING
FACTOR SUPPLY LET ME ASK
YOU, FUNDAMENTAL KIND OF
QUESTION WHETHER WE HAVE
HOME IN OUR JURISPURSUEDENS
TO THE POINT THAT IT IS PER
SE!!$$!!
SE, PER SE COMMENTS ON THE
RIGHT TO REMAIN SILENT, ANY
TIME, THAT THERE IS MENTION
IN THE COURTROOM THAT EVEN
IN WE DESCRIBING A SERIES OF
EVENTS, THAT THE PERSON DID
NOT RESPOND TO THAT
QUESTION.
DO YOU FOLLOW WHAT I'M
SAYING THAT IS REALLY WHAT
THIS IS THEY ARE TALKING
ABOUT REAR TALKING HE IS
GOING BACK AND GOING FORWARD
SAYING HE SAID THIS HE SAID
THAT, AND THEN HE STOPPED
TALKING.
>> I WILL TELL YOU -- IF YOU
GO BACK TO THE ORIGINAL
ARGUMENT MILES AN HOUR AND!!$$!!!!
ANDBACK TO 1966, THAT WAS
DHEERN, YOU KNOW, AND IN
THAT HEARING SUPREME COURT
JUDGE SAID TO THE ATTORNEY,
YOU MEAN TO TELL ME YOU GOT
TO TELL, A GUY THAT HAS
RIGHT TO REMAIN SILENT
BEFORE HE TALKS TO POLICE
THAT IS HOW -- BACK THEN,
YES.
>> I'M NOT SAYING
FAR-FETCHED HOOD WE REACHED
THAT POINT IN PER SE ANY
TIME MENTIONED.
>> I THINK WE TRULY HAVE, I
MEAN, IT IS SUCH A IMPORTANT
RIGHT THAT A PERSON HAS
RIGHT TO REMAIN SILENT FOR
STATE COMMENT ON THAT, I
THINK SHOULD BE PER SE
REVERSIBLE ERROR, AND, I
THINK THIS COURT HAS HELD
THAT IN FACT THAT IT IS.
>> WELL, I GUESS -- THE
QUESTION.
>> THE QUESTION --
>> IS IT WAS COMMENT ON THE
EVIDENCE OR THE FACTUAL?
OR IS IT A COMMENT ON HIS
RIGHT TO REMAIN SIELENT?
THAT IS I HAVE THE SAME
QUESTION, QUALIFICATION
HERE.
>> -- CONFUSION HERE.
>> THE EVIDENCE IS HE
EXERCISED HIS RIGHT, SURE
COMMON OWN COMMENT ON
EVIDENCE BUT COMMENT ON HIS
RIGHT TO REMAIN SILENT.
>> IS IT A COMMENT THAT IS
MY QUESTION, IT IS A
STATEMENT OF FACTUALLY WHAT
TRANSPIRED HE DIDN'T SAY
THAT WELL HE DIDN'T EXPLAIN
HE DIDN'T ANSWER THE
QUESTION AND EXPLAIN, AND --
USE IT AGAINST I HIM IN ANY
WAY.
>> WHERE IT CAME IN IS WHERE
THE POLICE WERE CONFRONTING
HIM.
>> RIGHT.
>> -- MR. ROSE, THAT THE
POINT SAID I'M NOT SAYING
ANYTHING MORE.
SO YEAH, WHEN -- AT ANY
POINT IN TIME A PERSON HAS
THE RIGHT AND ABSOLUTE RIGHT
TO EXERCISE THAT RIGHT TO
REMAIN SILENT DON'T YOU
MATTER IF I TALK FOR -- FOR
TWO DAYS, ONCE, ONCE THAT
INDIVIDUAL SAYS I'M
EXERCISING RIGHT TO REMAIN
SIEL SNOOENT THE PROSECUTOR
HOOD SAID HE REMAINED SILENT
HAD RIGHT TO DO SO WOULD YOU
OBJECTIVE!!$$!!!!!!!!!!!!!!!!
OBJECT TO THAT ALSO.
>> IT IS ERROR TO COMMENT ON
AN INDIVIDUAL RIGHT.
>> OTHER THAN THAT ONE
STATEMENT BY THE PROSECUTOR,
OTHER THAN THAT ONE
STATEMENT IN OPENING
STATEMENT BY THE PROSECUTOR
DID THE PROSECUTOR MENTION
THAT AT ALL?
>> HE DOES MENTION IT --
DURING THE COURSE I BELIEVE
OF THE TESTIMONY OF -- I
BELIEVE IT IS OFFICER -- THE
PERSON -- I'M -- I DON'T
RECALL THE $$OFFICER'S NAME
I'M SORRY, BUT AND THEN, IN
SO IF YOU ARE NOT ARGUING
THAT THAT STATEMENT --
>> THE --
>> YOU ARE NOT ARGUING --
YOU DIDN'T ARGUE EITHER OF
THOSE WAS OBJECTIONABLE?
YOU ARE ONLY ARGUING THE
OPENING STATEMENT WAS
OBJECTIONABLE!!$$!!!!!!!!!!!!!!!!!!!!!!!!
OBJECTIONABLE.
>> RIGHT BASICALLY --
OPENING STATEMENT.
>> I DON'T NOT -- WELL, I
GUESS TO FOLLOW UP, WHY
AREN'T THE OTHERS ALSO BEING
ARGUED AS ERROR IF THEY WERE
COMMENTS ON THE RIGHT TO
REMAIN SILENT SEEMS TO ME,
YOU WOULD HAVE A BETTER
ARGUMENT IF HE IS REAPPELLEE!!$$!!!!!!!!!!!!!!!!!!
REAPPELLEEING!!$$!!!!!!!!!!!!!!!!!!!!!!!!REAPPELLEE!!$$!!!!!!!!!!!!!!PEAT!!$$!!!!!!!!!!REPEATEDLY
SAYING THIS.
>> YOU KNOW -- HE DIDN'T SAY
CLOSING HE SAID I WAS
TALKING ABOUT SOMETHING
ELSE.
>> I DIDN'T THINK HE HAD,
CAME AS A SURPRISE.
>> PARDON.
>> IT CAME AS A SURPRISE
WHEN YOU SAID THAT HE
MENTION IT IN CLOSING.
>> I WAS REFERRING TO
SOMETHING ELSE IN CLOSING
I'M SORRY SO IF HOW DO YOU
SHOW ASSUMING THAT WE AGREE
WITH YOU, HOW DO YOU SHOW IF
THIS ONLY ONE COMMENT, IN
OPENING STATEMENT -- HOW DO
YOU SHOW PREJUDICE HERE THAT
IT JUST UNDERMINES OUR
CONFIDENCE IN THE OUTCOME OF
THE TRIAL THAT ONE ISOLATED
COMMENT, WASN'T EVEN WHEN
THE GUILT HAD ALREADY BEEN
DETERMINED AND THIS IS JUST
A RESENTENCED.
>> BECAUSE WE ARE STILL
TALKING ABOUT -- ATTORNEY --
SHOULD HE OBJECTED.
>> I UNDERSTAND YOU HAVE TO
SHOW IF HE SHOULD HAVE HAVE
OBJECTED YOU HAVE TO SHOW
PREJUDICE YOU SHOW THAT BY
SAYING CONFIDENCE IN OUTCOME
OF THE TRIAL WAS UNDERMINED,
GIVEN THAT THE TRIAL WAS
LIMITED TO THE PENALTY
PHASE, NOT GUILT, HOW IS OUR
CONFIDENCE IN PENALTY PHASE
UNDER MIND BY THAT
STATEMENT.
>> THIS WAS AN UNUSUAL CASE
THIS WAS A CASE WHERE THE
STATE IT WASN'T A CASE WHERE
THE SAME JURYEY -- A CASE OF
THE STATE, RETRIED THE
ENTIRE CASE.
>> BUT IF "THE JURY"Y WANTED
TO SAY, HE IS NOT GUILT,
THEY COULDN'T HAVE DONE
THAT.
>> COULDN'T HAVE DONE THAT
STUCK BY GUILT VERDICT.
>> PARDON, STUCK BY GUILT
VERDICT TELL ME HOW IT
PREJUDICED THE DEFENDANT IN
THE PENALTY PHASE.
>> BECAUSE IT STILL IT STILL
IT IS STILL, TALKING ABOUT
THE FACT THAT THE DEFENDANT,
EXERCISED A RIGHT A MATERIAL
RIGHT THAT HE HAD, AND IT IS
JURY WONDERING WHY DIDN'T HE
EXPLAIN HIMSELF, ONCE HE --
JURY HAS IT IN THEIR MIND
THROUGHOUT THE ENTIRE COURSE
OF THE TRIAL, WHAT IS
IMPORTANT ABOUT THAT BECAUSE
IT DOES GO BECAUSE THAT IS
THAT -- GOES TO THE POINT
WHERE HE IS TALKING ABOUT
THE KIDNAPPING OF LISA, AND
THAT IS THE FOCUS OF THE $$
STATE'S CASE ONE OF THE
AGGRAVATORS ALSO GOES TO THE
HAT WHICH IS THE FOCUS OF
THE $$STATE'S CASE.
>> --
>> COMES BACK TO --
KIDNAPPING!!$$!!!!!!!!!!!!!!!!!!
KIDNAPPING.
>> HE WAS.
>> I'M HAVING THIS PROBLEM
WHICH IS THAT YOU SAID
SOMETHING I'M NOT SURE YOU
MEANT -- YOU MAY HAVE
MISSPOKE.
YOU SAID THAT WERE ON DIRECT
APPEAL WHEN THERE IS A
COMMENT ON THE RIGHT TO
REMAIN SILENT IT IS PER SE
REVERSIBLE!!$$!!!!!!!!!!!!!!!!!!
REVERSIBLE, CORRECT ME IF
I'M WRONG, BUT ISN'T IT -- A
RIGHT TO REMAIN SILENT, AND
DIDN'T WE SAY THAT THOSE
COMMENTS ARE SUBJECT TO HARM!!$$!!!!!!
HARMLESS ERROR RULE?
>> YES.
>> OKAY, SO IT IS INTO THE
PER SE EVEN IF IT WERE
RAISED ON DIRECT PALE,
CORRECT!!$$!!!!!!!!!!!!
DIRECTOR DIRECT APPEAL
CORRECT.
>> CORRECT.
>> GOING TO JUSTICE CANTERO
HE LET'S ASSUME THE DEFENSE
LAWYER SHOULD HAVE OBJECTED
DIDN'T BEING THAT CAL REASON
FOR DOING IT WOULD IT HAVE
BEEN SUSTAINED BUT YOU STILL
HAVE TO SHOW IN ORDER TO GET
EVIDENTIARY HEARING IS WHAT
WOULD YOU SHOW ABOUT HOW THE
SO UNDERMINED THE CONFIDENCE
IN THE OUTCOME OF THE
PENALTY PHASE?
>> BECAUSE IT COULD CLOSE
RIGHT INTO WHAT I WAS SAYING
CLOSED INTO THE $$STATE'S
ARGUMENT IT WAS COMMITTED
DURING COURSE OF THE
KIDNAPPING AND GOES TO THE
HAT AGGRAVATOR, COUPLED --
>> EXPLAIN HOW IT GOES TO --
THE!!$$!!!!
HACK AGGRAVATOR IF YOU SAY
KIDNAPPING OR THE MURDER I
THINK MOST ARE SAYING, BUT
IT WAS ALREADY CONVICTED OF
THAT, SO NOW, WE HAVE TO
LOOK AND SEE DOES I GOT TO
SOMETHING THAT WAS UNIQUELY
TO THE PENT PHASE.
>> I CAN TIE THAT IN WITH MY
OTHER ARGUMENTS BECAUSE THE
-- GOES HAND IN HAND BECAUSE
THE OTHER ARGUMENT THAT WE
TALKED ABOUT WAS THE FACT
THAT THERE WAS A THE
SEMIRICHARDSON WILL HEAR
TRIAL COUNSEL NEVER GOT A
RULING FROM THE COURT WITH
REGARD TO THE -- AND THEN,
NOT ONLY THAT, BUT THEN HE
DID NOT CALL HIS MAIN DWRNS
WRIGHT TO TESTIFY ABOUT TWO
PICTURES AND WHAT IS
IMPORTANT ABOUT THAT JUDGE
IS THAT DURING THE COURSE OF
THE TRIAL COUNSEL OPENING,
HE ACTUAL SAYS ONE OF THE
WHEN THE COURT WENT INTO THE
OPENING -- THEY MEDICAL
EXAMINER WILL TESTIFY THAT
BASED ON ALPS, THE -- YOU A
TOPSI, NO -- INVOLVED THERE
ARE NO -- HE CAN'T TELL WHAT
THE -- IS THAT IS JUST A --
AND SO, HERE, DURING OPENING!!$$!!!!!!!!!!!!
OPENING, AGAIN, WE'VE GOT
SITUATION WHERE THE STATE
THE PROSECUTOR TALKS ABOUT
RIGHT TO REMAIN SILENT WE'VE
GOT THE DEFENSE COUNSEL NOW
SAYING TO "THE JURY"Y I'M
GOING TO PRESENT TO YOU,
SOME A, A DOCTOR, PERT GOING
TO TALK -- CONTRADICT
EVERYTHING YOU ARE GOING TO
HEAR FROM STATE EXPERT THEN
WE GET TO RICHARDSON HEARING
WHERE HE GETS NO RULING, AND
WE GET TO THE RICHARDSON
HEARING WHERE AFTER WHICH
DECIDES I'M NOT GOING TO
CALL THIS DOCTOR, SO NOW
WE'VE GOT ANOTHER PROBLEM,
AGAIN, DEALING WITH HOW --
IS PREJUDICE WHERE "THE
JURY" IS TOLD IN OPENING
STATE THAT YOU ARE GOING TO
HEAR FROM EXPERT GOING TO
CONTRADICT EVERYTHING THAT
YOU ARE GOING TO RELY ON TO
ESTABLISH --
>> I'M NOT GOING TO CALL --
>> BUT, IN -- YOU TALK ABOUT
HOW THERE WAS NO RULING THAT
RICHARDSON HEARING, BUT WHAT!!$$!!!!!!
WHATTOE WAS 34R7B9 THERE
IMPOLITICS RULING WHEN THE
-- IMPLICIT RULING THE JUDGE
SAYS I WILL GIVING YOU ALL
TIME YOU NEED FOR YOUR
EXPERT TO LOOK AT
PHOTOGRAPHS MAKE WHATEVER
DETERMINATION HE WANTS TO
MAKE, ABOUT PHOTOGRAPHS?
WHY ISN'T THAT SOME KIND OF
RULING!!$$!!!!!!!!!!
RULING.
>> THERE WASN'T
HARD-AND-FAST GRUELING I
UNDERSTAND HE GAVE THE
OPPORTUNITY TO EXAM HIM,
WHOEVER!!$$!!!!!!!!!!!!
WHOEVER, AND WHAT HAPPENED
WAS, ON APPEAL, THE COURT
THIS COURT SAID, WELL IT WAS
TACTICAL DECISION WE DON'T
KNOW THAT WE DON'T KNOW WHOA
MR. -- TRIAL ATTORNEY WAS
THINKING WHEN HE DECIDED I
DON'T NEED A RULING, I'M NOT
GOING TO CALL DR. WRIGHT I'M
NOT GOING TO USE THESE
PHOTOGRAPHS WE DON'T KNOW,
NOW THIS COURT SAID IT WAS
TACTICAL DECISION.
>> DIDN'T HE STATE BELOW WHY
HE MADE THAT DECISION?
TRIAL COUNSEL.
>> DIDN'T HE EXPLAIN ON THE
RECORD BEFORE THE JUDGE.
>> NOT REALLY I DON'T THINK
HE EXPLAINED IT, I THINK IT
I WAS KIND OF OFF THE CUFF
THING, I WILL TELL YOU I
KNOW WE ARE NOT GOING TO USE
THIS WITNESS NOT GOING TO
USE PICTURES I THINK IT IS
-- YOU KNOW, PREJUDICE MIGHT
BE TOO MUCH, BUT YOU KNOW,
JUST BY SAYING THAT, I THINK
OFF THE CUFF REACTION I
DON'T THINK HE -- GAVE IT
ENOUGH THOUGHT WE ARE
TALKING ABOUT A SITUATION
WHERE HE TALKS ABOUT A KEY
WITNESS DR. WRIGHT AND THEN,
TELLS "THE JURY"Y THEY ARE
GOING TO HEAR FROM HIM HE
DOESN'T CALL THEM ONE OF THE
MOST IMPORTANT HE
WITNESSNESS THE CASE.
>> WHERE IS THAT DIFFERENT
CLAIM I THOUGHT YOUR CLAIM
ON THIS WAS FAILURE TO
OBTAIN A RULING ON THE
RICHARDSON VIOLATION.
>> AND -- CALL DR. WRIGHT,
USE PHOTOGRAPHS AND CALL DR.
WRIGHT.
>> WELL -- BUT, IF WE LOOK
AT THIS, AND FIRST OF ALL AS
YOU SAID IT WAS ESSENTIALLY
RULED ON ON DIRECT APPEAL
EVEN IF IT GETS PAST THAT,
CAN'T WE BY KNOWING THAT THE
-- YOU KNOW PICTURES OF THE
MAGGOTS WOULD HAVE BEEN
INFLAMMATORY!!$$!!!!!!!!!!!!!!!!!!!!!!
INFLAMMATORY, THAT IT WOULD
-- WOULD IT NOT NEGATE$$!!!!A HAC
DOESN'T THAT SHOW THERE IS
NO PREJUDICE IN TERMS OF
HAVING TO UNDERMINE
CONFIDENCE IN THE PENALTY
FACE.
>> WHAT!!$$!!!!!! PHASE.
>> WHAT IS INTERESTING THE
STATE TALKS, IN THE STATE
CASE, CENTERS AROUND BLOOD
TRYING!!$$!!!!!!!!!!
TYPING FOUND DR. WRIGHT
WOULD HAVE BEEN TESTIFYING
THE BLOWS IN THAT PARTICULAR
ROOM WHERE MAGGOT CAME, THE
OPEN WOUND, WAS NOT AN OPEN
IT WAS NOT OPEN WOUND IT WAS
CAUSED BY THE MAGGOT IN
FACT, THERE WOULD HAVE BEEN
-- BLOOD HE HAD TRAUMA A
WITHOUT ANY BLOOD.
>> YOU WANT TO BE ABLE TO
HAVE AN EVIDENTIARY HEARING
TO PUT ON WHAT TESTIMONY.
>> TO PUT ON DR. -- PUT
ON -- THE ATTORNEY THE TRIAL
ATTORNEY IN THE CASE FOR HIM
TO EXPLAIN WHY HE DIDN'T
OBJECT TO THESE THINGS, WHY
AND WHY HE DID NOT CALL DR.
WRIGHT CONTRADICT EVERYTHING
DR. WRIGHT WAS GOING TO
TESTIFY HE REVS TO NOTE I'VE
GOT AN EXPERT GOING TO
CONTRADICT EVERYTHING THE
STATE SAYS GRANTSED WE'RE AT
GUILTY PHASE IS A POINTED
OUT JUDGE, SORRYEY PENALTY
PHASE GUILT NOT AN ISSUE BUT
THE STATE MADE IT AN ISSUE
BY TALKING ABOUT ALL THESE
-- HE REPRESENTING ENTIRE
CASE, THE OTHER THING THAT
IS IMPORTANT --
>> WHEN YOU SAY STATE MADE
IT AN ISSUE IT IS NOT AN
ISSUE THAT "THE JURY" OR
JUDGE IS GOING TO DETERMINE
THE STATE MAY HAVE MADE IT
AN ISSUE TO GIVE BACKGROUND,
OF THE CRIME TO THE PENALTY
PHASE JURYEY WHO WASN'T
THERE FOR GUILT PHASE.
>> THAT FLOWS TO LAST
ARGUMENT TALKS ABOUT, THE
STATE COMMENT ON THE TIME
LINE, WHERE HE SAYS, THE
TIME LINE SMOKE SCREEN,
DON'T PAY ATTENTION TO IT,
THAT TIME LINE WAS FILLED
OUT FOR THE JURY TO SHOW
WHAT THE STATE SAYS MR. ROSE
DID ALL THOSE THINGS HE DID
HE COULDN'T HAVE DONE IN
THAT TIME PERIOD BASED ON
WHAT THE -- THAT HE DROVE IT
TOOK 35 MINUTES, THERE IS NO
WAY THAT MR. ROSE, IF YOU
BELIEVE THAT HE -- HE
KIDNAPPED!!$$!!!!!!!!!!!!!!!!
KIDNAPPED, LISA BERRY AND IF
YOU BELIEVE HE KILLED LISA
BERRY THERE IS NO WAY HE
COULD HAVE DONE ALL THOSE
OTHER THINGS TO CAUSE THE
HEINOUS ATROSCHIOUS CRIME
DUMPED CLOTHES DONE THIS
THAT, BASED ON THAT TIME
LINE THE STATE SAYING A
SMOKE SCREEN, SAYS, JURY
DISREGARD WHAT THE DEFENSE
IS RAISING AS THEIR DEFENSE
TO OUR FACT THAT IT WAS IT
WAS KIDNAPPING O THAT!!$$!!!!!!OCCURRED,
MURDER DURING COURSE OF THE
KIDNAPPING AS FAR AS
AGGRAVATOR!!$$!!!!!!!!!!!!!!!!!!
AGGRAVATOR, DISREGARD WHAT
THE DEFENSE IS SAYING TO
NEGATE, OUR HAC AGGRAVATOR
IT IS SMAEK SCREEN GOES HAND
IN HAND WITH THE FACT THAT
-- HAD CALLED DR. WRIGHT
WOULD HE HAVE PRESENTED THAT
TOEFD "THE JURY"Y "THE JURY"!!$$!!!!!!!!
JURY"Y PROBABLY WOULD NOT
HAVE COME BACK WITH THE HAC,
THEY WOULDN'T HAVE COME BACK
WITH THAT.
>> INTO REBUTTAL JUST TO
REMIND YOU ON YOUR TIME.
>> ALL RIGHT.
>> AND, I JUST WANT TO POINT
ONE THING OUT, WHAT IS
SIGNIFICANT HERE IS THAT THE
STATE THROUGHOUT THEIR TIME,
THEY WERE TALKING IN THE IN
THIS LAST PENALTY PHASE HOW
STRONG THIS CASE WAS, IT
WASN'T STRONG AT ALL THE
ORIGINAL JURY THAT HEARD IT,
POIRNLTED OUT BY JUSTICE
OVERTON WAS JUNG JURY
MISTRIAD AND THEN THE SECOND
-- CAME BACK, HUNG, OR
DIDN'T COME BACK HUNG BUTAT
IMPROPER ALLEN CHARGE A
GUILTY VERDICT AND A 6-6
VERDICT IMPROPERLY ALLEN
CHARGED.
>> YOU HAVE MADE A LEFT YOUR
ACT BASED ON WHAT THIS
EXPERT THAT HE SAID HE WAS
GOING TO CALL BUT DID NOT
CALL WOULD HAVE NEGATED,
WHAT EXACTLY WAS THIS EXPERT
GOING TO SAY THAT WOULD HAVE
MADE THIS SUCH A COMPLETELY
DIFFERENT I WAS.
>> A NUMBER OF THINGS THIS
EXPERT WOULD HAVE TESTIFIED
THAT THE BLOWS, TO THE HEAD
THAT THE STATE WAS SAYING
WOULD -- CALLED INTO DOUBT
-- THAT ONE -- PICTURE THE
TWO PICTURES I'M SORRY THAT
SHOWED MAGGOTS THAT MAGGOTS
CREATED THAT HOLE THAT
INCISION IN THE BODY THAT
THERE WAS NO BLOW TO THE
HEAD THAT CAUSED INCISION,
AND SO IT WASN'T AS THE
STATE WAS SAYING, THIS
HORRIBLE THING THAT THE
VICTIM SUFFERED IT WAS CRUEL
UNYUSH!!$$!!!!!!!!!!
UNYUSH, AND HEINOUS
ATROCIOUS!!$$!!!!!!!!!!!!!!!!
ATROCIOUS, AS STATE WAS
SAYING BEATING THAT LISA
BERRY UNDERTOOK.
>> BUT IT WILL WOULDN'T HAVE
DISPUTED THE FACT THE CAUSE
OF DEATH WAS BY THE HAMMER
TO THE HEAD.
>> ACTUALLY, IT IS DEBATABLE
WHETHER OR NOT THE CAUSE OF
DEATH WHETHER DR. WRIGHT
WOULD HAVE SAID IT WAS THE
HAMMER, BECAUSE, WHAT THE --
WHAT DOCTOR WAS SAYING IS
THOSE THOSE MARKINGS, WERE
CAUSED FROM HAMMER
CONSISTENT WHAUMTHER THE
PROBLEM IS -- THE PROBLEM IS
THEY ARE ALSO CONSISTENT
WITH MAGGOTS THERE.
THAT IS WHERE THE PROBLEM
COMES.
>> SO DID YOUR EXPERT
TESTIFY TO ANOTHER CAUSE OF
DEATH?
>> HE NEVER TESTIFIED THAT
IS THE PROBLEM.
>> WOULD HE.
>> YES NO WOULD HE HAVE
TESTIFIED THE CAUSE OF DAET
FROM HEAD TRAUMA BUT
WOULDN'T HAVE TESTIFIED
NECESSARILY THE HAMMER
CAUSED THOSE INJURIES.
>> THERE WAS BLOW TO THE
HEAD NOT NECESSARILY THE
HAMMER, THAT IS THE POINT.
>> WE HAVE -- THE VICTIM
DIED INSTANTANEOUSLY OR
ANYTHING LIKE THAT?
>> WELL -- HE MIGHT HAVE.
>> WHAT WAS THE --
>> THERE WAS NO -- THERE
WASN'T EVEN A -- AS TO WHAT
WHAT HE SAID IN OPENING OUR
EXPERT IS GOING TO
CONTRADICT WHAT THEIR EXPERT
SAYS.
>> DID YOU MAKE A A
PROFESSOR AT OF THE
EVIDENTIARY HEARING.
>> DID YOU MAKE A PROFFER
THAT THIS IS WHAT WOULD HAVE
BEEN SHOWN AT THE
EVIDENTIARY HEARING.
>> I WASN'T AAFFORDED AN
EVIDENTIARY HEARING.
>> I KNOW YOU WEREN'T AFFORD!!$$!!!!!!!!!!
AFFORDED AN EVIDENTIARY
HEARING BUT AT WHAT IS THERE
A HUFF HEARING?
>> THERE WAS.
>> DID YOU PROFFER AT THE
HUFF HEARING WHY YOU NEEDED
AN EVIDENTIARY HEARING AND
WHAT THIS EXPERT WOULD HAVE
SAID.
>> THE ESSENCE OF THE
EVIDENTIARY HEARING WAS SO
THAT WE COULD PRESENT
MR. SINGAL, HE COULD EXPLAIN
WHY HE DID NOT CALL THAT
WITNESS WE COULD PRESENT THE
WITNESS WE DID NOT MAKE
PROFFER NO, WE DID NOT.
>> IS THERE ANY ALLEGATION
THAT YOU HAVE AN EXPERT THAT
WOULD TESTIFY THAT THE CAUSE
OF THAT THE VICTIM DIED
INSTANTANEOUS!!$$!!!!!!!!!!!!!!!!!!!!!!!!
INSTANTANEOUSLY DID NOT
SUFFER BETWEEN THE TIME SHE
WAS HIT OVER THE HEAD --
AND --
>> WHAT IS INTERESTING IS
THE AND THIS GOES AGAIN TO
THE TIME LINE, BECAUSE THERE
IS ONLY 35 MINUTE WINDOW
THAT WE'VE GOT.
DRIVING TO AND FROM THE AREA
THAT WHERE THE BODY WAS,
BACK TO THE BOWLING ALLY,
WE'VE GOT A SITUATION, WHERE
IF THE VICTIM WAS KILLED IN
THAT SHORT PERIOD OF TIME,
AND THEN DUMPED INTO THE
WATER, WE'VE GOT THE DOCTOR
SAYING SHE DID NOT DROWN,
SEE SHE BASICALLY, DIED AS A
RESULT OF THE HEAD INJURIES,
SHE DIDN'T DROWN THERE WAS
NO WATER FOUND IN HER LUNGS,
SO THATTING WOULD TO
CONTRADICT THE $$STATE'S
THEORY SHE SUFFERED THAT IT
WAS HEINOUS ATROSCHIOUS AND
CRUEL!!$$!!!!!!!!
CRUEL, O TO THE POINT WHERE
OUR EXPERT WOULD HAVE SAID
NO IF THERE IS NO WATER IN
THE LUNGS, IT WASN'T
IMMEDIATELY SHE WOULD HAVE
DYED BEFORE PLACED IN THE
WATER, AND GOING BACK TO THE
TIME LINE ARGUMENT THERE
WASN'T ENOUGH TIME FOR HIM
TO DRIVE AROUND WITH HER
BODY, BECAUSE WE ARE ONLY
TALKING ABOUT A SHORT PERIOD
OF TIME.
THAT HE HAD TO DO ALL THESE
AKTS THAT IS WHY I --
>> A SHORT PERIOD OF TIME
COULD BE, TWO MINUTES, AND I
THINK WE SAID WHEN IT COMES
TO STRANGULATION, AND KNIFE
MURDERS!!$$!!!!!!!!!!!!
MURDERS, THAT THAT TWO
MINUTES, IS NURTURE TO
ESTABLISH HAC.
>> YOU ARE RIGHT, WHEN WE GO
TO TALK ABOUT STRANGULATION
WE TALK ABOUT THOSE THINGS,
WE DON'T HAVE IT WE'VE GOT,
ONE HEAD TRAUMA DON'T HAVE
STRANGULATION WE DON'T HAVE
THOSE -- THOSE THINGS THAT
WE TYPICALLY SEE, IN A HAC
SITUATION, AND THAT IS WHY I
-- BY NOT GOING FORWARD WITH
THE EXPERT NOT GOING FORWARD
WITH PICTURES, BY THE STATE
DRAWING AWAY SAYING, IT IS
ALL SMOKE SCREEN THROW AWAY
ARGUMENT ABOUT TIME LINE ALL
THOSE THINGS GO HAND IN
HAND.
>> I DIDN'T GET A CHANCE TO
JACQUE ABOUT JUROR SITUATION
WHICH IS ANOTHER -- CLAIM IN
OUR ISSUE, IF I COULD HAVE
JUST A REAL BRIEF -- "THE
JURY" OR TALKS ABOUT THE
FACT WHY ARE WE HERE IS IT
FOR RESENTENCING, THE ISSUE
THERE, IS WHEN THE CASE IS
TRIED AGAIN, WHETHER IT IS A
FIRST MISTRIAL, OR IT IS A A
RESENTENCING!!$$!!!!!!!!!!!!!!!!!!!!!!
RESENTENCING, THE COURTS ARE
VERY CAREFUL NOT TO LET THE
LET THE JURY KNOW THAT
INDIVIDUAL HAS BEEN TRIED
BEFORE.
IN FACT, THE COURTS ARE VERY
CAREFUL TO MAKE SURE THE
JURY DON'T KNOW NECESSARILY
THE PERSON HAS BEEN
PREVIOUSLY SENTENCED.
HE IS HERE FOR A SENTENCING
PHASE.
NOT THAT HE HAS BEEN
SENTENCED ONCE BEFORE.
NOW YOU'RE HERE TO
RECONSIDER SENTENCE.
WE'RE HERE FOR A SENTENCING
PHASE.
AND HERE, THAT'S JUROR ASKED
WHY WAS HE SENTENCED NOBODY
TOUCHED THAT.
MR. SENGAL SHOULD HAVE SAID,
JUDGE, WE A PROBLEM.
THIS JUROR HAS POISONED THE
REST OF THE PANEL LETING THE
PANEL, MY CLIENT HERE HAS
BEEN PREVIOUSLY SENTENCED.
WE NEED TO STRIKE THIS PANEL
AND START AFRESH.
THAT'S WHAT SHOULD HAVE
HAPPENED HERE.
>> THANK YOU.
WITH THAT, YOU'RE WELL OVER
YOUR TIME.
THANK YOU.
>> MAY IT PLEASE THE COURT
MY NAME IS CAROL --
>> PULL DOWN THE MICROPHONE.
THANK YOU.
>> IT WAS A PROBLEM.
SHORT THAT IT BE, THERE WAS
A PROFFER AT THE, ORIGINAL,
NEW RESENTENCING.
IT'S AT PAGE, CLOSE TO PAGE
1196 THROUGH 98.
I THINK HITS CLOSE TO THE
FIRST PART.
SAYS, MR. SENG GAL, ALTHOUGH
MR. MR. WRIGHT IS HERE TO
GIFT PROFFER HE WOULD
TESTIFY AS TO THE WOUND ON
TEMPLE BEING CAUSED BY
MAGGOTS.
IN TERMS OF THE OPINION HE
WOULD FORM IN TERMS OF THE
FRACTURE, BASED ON
PHOTOGRAPHS, WHICH I GOT
FRIDAY, HE WOULD, TESTIFY
THAT THEY ARE CONSIST WITH A
FRACTURE OR A SUTURE.
SO HE DID PROFFER.
HE CANNOT RENEW THE PROFFER
WHEN IT CAME TO THE
EVIDENTIARY HEARING OR THE
HUFF HEARING TO DETERMINE AT
THE EVIDENTIARY HEARING.
THERE ARE FOUR ISSUES THAT
ARE BEFORE THIS COURT THIS
MORNING THAT ALL KIND OF
BEEN PUT TOGETHER AND,
DISCUSSED.
IT SEEMS TO ME THAT, I THINK,
WE HAVE TO GO BACK A STEP
AND LOOK AT WAS PRESENTED AT
THE DIRECT APPEAL FROM THE
REHEARING.
AND THEN LET'S LOOK AT ONE
STEP FURTHER BACK.
THE PRESENTED AT REHEARING.
THE DEFENSE PRESENTED AT
PENALTY PHASE.
THERE WERE FOUR WITNESSES
THAT TESTIFIED ON BEHALF OF
THE DEFENSE THEY WERE THREE
PEOPLE WHO WERE NONLAY
PEOPLE.
ONE PERSON, MR. GREER,
TESTIFIED THAT, MRS. YEAR
EXCUSE ME, TESTIFIED SHE HAD
TESTIFIED FOR 25, 27 YEARS
HE WOULD DO NO HARM TO NO
ONE AND DO NO TO CHILDREN IN
PARTICULAR.
THERE WAS HUSBAND AND WIFE
TEMPLETON.
WHO TESTIFIED THAT
MR. TEMPLETON WAS HIS
EMPLOYER.
HE WAS A HARMLESS
INDIVIDUAL.
WOULD NOT HARM HIS
GRANDCHILDREN.
WIFE CONFIRMED SHE WOULD
TRUST HER GRANDCHILDREN WITH
MR. ROSE.
THERE WAS DR. TUMOR.
THAT WAS SUM TOTAL OF
TESTIMONY PRESENTED IN
MITIGATION.
THE ISSUE THAT WE'RE NOW
TALKING ABOUT, IN PARTICULAR
WHETHER THERE WAS RIGHT TO
REMAIN SILENT AND WHETHER
VAN SZANT IN HIS COMMENT
SAID HE STOPPED TALK AT
SERIES OF DISCUSSIONS
WHETHER THIS IS COMMENT
UNDER RIGHT TO REMAIN SILENT
GO TO GUILT ISSUES.
THEY DO NO-GO TO THE PENALTY
PHASE ISSUE.
IT WAS NOT A COMMENT ON
SILENCE.
THIS MAN CONTINUED TO TALK.
ONLY AT A TIME HE DID NOT
WANT TO ANSWER QUESTION HE
CEASED, ALL CONVERSATION AT
THAT POINT WAS ON HIS RIGHT,
QUOTE TO REMAIN SILENT WAS
SCRUPULOUSLY HON AT THAT
POINT AND NO FURTHER
QUESTION WAS ASKED OF
MR. ROSE.
THERE IS NOT A FAILURE OR
COMMENT ON THE PART OF THE
STATE THAT HE REMAINED
SILENT AND IN FACT THE JURY
HEARD THAT THIS INDIVIDUAL
DID NOT WANT TO TALK.
IN FACT HE TALKED APLENTY.
HE TALKED A STORY, A BLUE
LINE WITH REGARD TO WHAT WAS
GOING ON AND HIS STORY WAS
WITH REGARD TO HOW HE GOT
THERE, WHAT HAPPENED AFTER
HE LEFT THE BOWLING ALLEY.
WHEN HE GOT BACK.
WHY THERE WAS BLOOD ON HIS
PANTS.
WHERE THERE WAS BLOOD AND
HOW THE BLOOD GOT THERE.
WHETHER IT WAS IN FACT
PAINT.
WHETHER HE TRIED TO DISTORT
THE BLOOD ON THE PANTS
THERE.
IS WHOLE SERIES OF EVENTS
THAT HE CONTINUOUSLY TALKED
AS A MATTER OF FACT TO TWO
DECK A DETECTIVE WALKER AND
DETECTIVE VAN ZANT.
WE HAVE TO KIND OF PUT THIS
IN CONTEXT WHAT EXACTLY HE
IS TALKING ABOUT.
HE IS PULLING OUT A PHRASE
OR A STATEMENT AND SAYING
THE SCENARIO OF THE
PROSECUTOR TRYING TO GIVE AN
OPENING STATEMENT AS TO WHAT
THE STATE WAS GOING TO SHOW
TRANSPIRED AT THE GUILT
PHASE, AND THEN STOPPED
TALKING.
THAT'S A COMMENT ON HIS
RIGHT TO REMAIN SILENT.
>> DID THIS POINT THAT HE
STOPPED TALKING DID HE NEVER
TALK AGAIN?
DID HE INVOKE RIGHT TO
REMAIN SILENT AT THIS POINT.
>> THE RECORD DOES NOT BEAR
THAT OUT.
THE RECORD SHOWS HE NO
LONGER SPOKE TO THAT
DETECTIVE WHEN HE ASKED A
QUESTION.
IN OUR BRIEF WE HAVE A
SPECIFIC PROVISION -- LET ME
GET TO IT.
>> IT SEEMS AS THIS ARGUMENT
ISING IT'S NOT, GOOD MORNING,
HOW ARE YOU.
AND HE DID NOT RESPOND.
THAT IT WAS, WHEN THE
DISCUSSION BECOMES
ACCUSATIONS AND THEN, DOES
NOT RESPOND I THINK THAT'S
THE ARGUMENT THAT HE'S SEEMS
TO BE MAKING.
IT'S SORT OF THE NATE TURKS
I BELIEVE, IS WHAT HE IS
ASSERTING.
>> THE OPENING STATEMENT,
THIS IS LAST SENTENCE THE
OPENING STATEMENT.
AND VAN ZANT, SAID, WORDS TO
THE EFFECT, LOOK, ARE YOU
MAKING UP THIS STORY
REGARDING LISA WITH A MAN AT
THE BOWLING ALLEY THAT YOU
SAW?
AT THAT TIME JIM ROSE
TERMINATED CONVERSATION.
WOULDN'T SPEAK ANYMORE.
THAT IS THE COMMENT THAT IS
SUPPOSEDLY, PURPORTED HE
HADLY ON HIS COMMENT RIGHT
TO REMAIN SILENT.
IN FACT WHEN YOU THINK ABOUT
IT, THE RECORD BEARS OUT IN
THIS HISTORICAL ACCOUNTING
OF THE FACTS BEAR OUT, THAT,
MR. ROSE RETURNED TO THE
BOWLING ALLY.
HE WENT UP TO THE MOTHER AND
HE WAS OFFERING HIS
ASSISTANT TRYING TO LOCATE
LISA BARRY.
AND AT THAT ONE POINT IN
TIME OH, I JUST SAY SAW
LISA.
SHE IS GETTING CHUBBY.
I SAW HER WITH ANOTHER MAN
WITH A GOATEE.
AND, THE MOTHER, BARBARA
BARRY, TURNS AROUND LOOKS,
SHE TESTIFIES, AT THE TRIAL,
SHE DIDN'T SEE ANYBODY AT
THAT POINT.
SO HE IS CONTINUALLY MAKING
THESE STORIES UP.
I THINK MAKING THESE STORIES
UP IN FACT, THIS COURT, ON
DIRECT APPEAL WHEN IT WAS
DESCRIBING FACTS AND
SCENARIOS OF THE, THE
ACCOUNTING OF WHAT MR. ROSE
SAID DURING THE TIME OF THE
MURDER, SAID HE WAS
PRETENDING, AND, THAT KIND
OF LENDS ITSELF TO WHAT ONE
OF THE ARGUMENTS THAT WASN'T
TOTALLY ARTICULATED THIS
MORNING BUT IS PRESENTED
BEFORE THE COURT IS THAT THE
WORD, SMOKE SCREEN, THE
PROSECUTOR USED THE WORD,
SMOKE SCREEN, IN HIS CLOSING
ARGUMENTS WITH REGARD TO
WHAT HAD TRANSPIRED.
WELL, TRALY WE HAVE KEY
PHRASES THAT WE SAW ARE NOT
APPLICABLE AND SHOULD NOT BE
USED IN A TRIAL BECAUSE IT
TENDS TO MAKE JURORS THINK,
OR PUT SOMETHING IN BAD
LIGHT.
DEN DENIGRATING THE
MITIGATION.
THE SMOKE SCREEN COMMENT HAD
NOTHING WHATEVER TO DO WITH
REGARD TO MITIGATION IN THIS
CASE.
IT HAD TO DO SAYING A IT WAS
A SMOKE SCREEN EXPLAINING
WHAT IN FACT, MR. ROSE HAD
DONE WITH REGARD TO THE
FACTS THE CASE.
HOW HE HAD PORTRAYED TO ALL
THE PEOPLE WHO WERE AT THE
BOWLING ALLEY AND THE POLICE
AT THAT TIME HE WAS THROWING
UP SMOKE SCREENS WITH REGARD
TO WHAT HE SAY.
HE HAD A SMOKE SCREEN TO IN
FACT MRS. BARRY WITH REGARD
TO HAVING SEEN HER DAUGHTER
TRYING TO ARTICULATE SHE WAS
STILL ALIVE WHEN HE KNEW SHE
WAS DEAD.
>> WASN'T THIS HIS CLAIM WAS
WITH REGARD TO A PARTICULAR
ASPECT OF THE EVIDENCE BEING
THE TIMELINE AND, DOES THAT
MAKE A DIFFERENCE AS OPPOSED
TO THESE OTHER THINGS?
>> WELL, YES.
HE IS TRYING TO MAKE SMOKE,
EXCUSE ME, TRYING TO MAKE IT
A TIMELINE.
IN FACT THE SMOKE SCREEN
STATEMENT REALLY HAD TO DO
WITH TALKING ABOUT THE
MOTHER AND THAT THERE WAS
ANOTHER INDIVIDUAL THERE AND
I DON'T THINK I THINK IT WAS
MORE, THE FACT WALL EVIDENCE
NOT SO MUCH THIS TIME FRAME.
THE TIME FRAME, WAS BACK AND
FORTH BACK AND FORTH.
YOU KNOW, HE NEVER, HE NEVER
SAYS THAT OH, WELL, I LIED
ABOUT THIS.
THERE WAS A, FOR EXAMPLE,
ONE OF THE PARTS OF THE TIME
WAS THAT, --.
>> DOES IT MAKE A KIF ENDS --
DIFFERENCE IF ONE OR OTHER?
>> PARDON ME?
>> DOES IT MAKE A DIFFERENCE,
IF YOU USE THAT ARGUMENT
WITH REGARD TO A TIME FRAME
AS OPPOSED TO OTHER THINGS
HAPPEN?
IS THAT A OF LEGAL
SIGNIFICANCE?
>> ABSOLUTELY.
MY POINT IS, SAYING THE
WHOLE TIME FRAME IS A SMOKE
SCREEN IT MAY OR MAY NOT BE
RELEVANT AND GER MAIN.
>> OKAY.
>> IT MAY OR MAY NOT
DENIGRATE.
THE TIME FRAME WAS IN FACT
NOT THE EVIDENCE HE WAS
PRESENTING WITH REGARD TO
MITIGATION AT THE PENALTY
PHASE.
HE HAD DR. TUMOR TO ABOUT
HIS MENTAL HEALTH, WHAT IQ,
BECAUSE WE WRANGLED WHETHER
HIS IQ WAS 89 OR 99 OR
TALKING ABOUT WHETHER HE WAS
SOCIOPATH OR HAD SOME OTHER
PROBLEMS.
WE'RE TALKING ABOUT VICTIMS
OR PEOPLE HE KNEW WHO SAID
HE WAS NOT A BAD PERSON.
WOULD NOT HARM CHILDREN.
HAD NOTHING TO DO WITH THE
TIME FRAME.
ALL THIS IS KIND OF, YOU
KNOW, IT'S REALLY A RED
HERRING WITH REGARD TO --
>> SMOKE SCREEN HUH?
>> PARDON ME?
>> IT'S ANOTHER SMOKE KOREAN,
HUH?
>> I -- SMOKE SCREEN.
>> I DECIDED TO CHANGE SMOKE
SCREEN.
THE POINT HE IS PRETENDING
HOW IS THAT.
WE HAVE TO LOOK AT ISSUES HE
IS RAISING.
HE IS MAKING IT IN THE GENRE,
COINS COUNSEL WAS
INEFFECTIVE FOR NOT
OBJECTING BUT THERE WAS NO
BASIS TO DO THAT THERE
CERTAINLY WAS NO BASIS TO
SUGGEST A RIGHT TO REMAIN
SILENT COUNSEL WOULD HAVE
BEEN INEFFECTIVE BECAUSE
UNDERPINNING OF THAT ISSUE
WOULD HAVE BEEN REJECTED.
AND IN FACT HE SEEMS TO ME
THAT WAS PROCEDURALLY BARRED
THE UNDERPINNING OF THAT
ISSUE WAS PROCEDURALLY
BARRED.
HE DID NOT RAISE THE CLAIM.
I CAN LOOK BACK QUICKLY BUT
I DON'T BELIEVE THAT ISSUE
WAS RAISED UNDER
RESENTENCING.
THAT ISSUE DOESN'T LIVE ANY
LONGER THAT COULD.
RICHARDSON HEARING.
MATTER, AND OF COURSE I, I
READ THIS, I DON'T KNOW
EXCEPT FOR PUTTING ON DOTTED
LINE, THE STATE MAY HAVE,
COMMITTED A RICHARDSON ERROR
BUT IT'S HARMLESS.
THAT'S THE OPEN THING THAT
DIDN'T HAPPEN IN THIS
INSTANCE.
THE RECORD IS REPLETE WITH
THE COURT'S BEGGING TO SOME
DEGREE, ASKING THAT, IS
THERE ANYTHING ELSE YOU WANT
TO DO THEY ASKED MR. ROSE,
MR. ROSE, ARE YOU
COMFORTABLE WITH NOT HAVING
DR. WRITE TESTIFY IN BEHALF
OF YOUR CASE?
HE SAID I'M COMFORTABLE WIT.
HE TALKED WITH HIS CLIENT.
HE WAS COMFORTABLE WITH IT.
THE THERE WAS STRATEGIC
DETERMINATION HE MADE,
PHOTOGRAPHS UNEARTHED FOR
SOME REASON THEY WERE IN THE
MEDICAL EXAMINER'S OFFICE.
WE KNOW THAT THEY COME TO
LIGHT AT THE THIRD
SENTENCING HEARING.
THEY ARE, THEY'RE GRUESOME
PHOTOGRAPHS AND THERE WERE
TWO PHOTOGRAPHS GOING TO
COME IN ANY WAY.
THERE WERE TWO HAVING TO DO
WITH THE SKULL AND THEN
THERE WERE THESE OTHER
PHOTOGRAPHS.
MR. SINGHALL, EXCUSE ME WAS
CLEARLY NOT GOING TO PUT
THOSE PICTURES BEFORE THE
JURY.
HE DID NOT WANT THEM TO SEE
THOSE PICTURES.
SO, THIS IS A CHICKEN AND
EGG.
FIRST OF ALL FIND OUT THERE
IS PICTURES OUT THERE, YOU
FIND OUT WHAT THEY ARE YOU
DON'T WANT THEM BUT STILL
GOING TO COMPLAIN BIT.
THAT'S WHAT HAPPENED HERE.
HE IS COMPLAINING.
AND NOW THE ISSUE, ARISES AS,
LAWYER WAS INEFFECTIVE FOR
NOT GETTING A ORDER OR A
RULING FROM THE COURT.
WELL, THE COURT RULED.
THE COURT SAID I FIND THERE
PROBABLY COULD HAVE BEEN
SOME PROBLEMS HERE.
I THINK HE MADE A COLORFUL
SHOWING AS TO THE HAC, HE
COULD HAVE USED IT TO,
PERHAPS, I DON'T KNOW BUT
COULD HAVE USED IT TOWARD
PROOF OF THAT.
>> COULD YOU EXPLAIN THE
TIMING OF, HOW HE WAS GOING
TO OFFER DR. WRIGHT AND
REPRESENTED THAT TO THE JURY
AND THEN DIDN'T USE
DR. WRIGHT?
>> I THINK AT THE BEGINNING
OF THE CASE HE SAID
DR. WRIGHT OR A DOCTOR WAS
GOING TO TESTIFY TO SHOW
THAT THE CAUSE OF DEATH WAS
NOT NECESSARILY, OR THE TIME
OF DEATH WAS NOT NECESSARILY
AS LONG AS DR. FATH SAID IT
WAS.
IN HIS ORIGINAL TESTIMONY IT
COULD BE AS MUCH AS AN HOUR.
ON CROSS-EXAMINATION HE CUT
IT BACK TO FOUR TO EIGHT
MINUTES.
DR. WRIGHT, PRESUMABLY, WE
DON'T KNOW, WAS PRESUMABLY
GOING TO COME IN TESTIFY
BECAUSE OF INSECT
INTERVENTION, TO THE BODY,
THAT IT WAS NOT CLEAR, AND
YOU COULD NOT SHOW HOW LONG
SHE WOULD HAVE LIVED BECAUSE
IT, COULD BEEN THE DAMAGE TO
THE SKULL COULD HAVE BEEN
DUE TO INSECTS AS OPPOSED TO
BLOWS.
>> BUT DR. WRIGHT, WHEN HE
FIRST, WHEN THE DEFENSE
ATTORNEY FIRST SAID,
DR. WRIGHT WAS GOING TO
TESTIFY THAT TIME HE DIDN'T
HAVE THE PHOTOGRAPHS.
>> HE DIDN'T KNOW ABOUT THE
16 OTHER PHOTOGRAPHS.
THERE WERE TWO SKULL
PICTURES THAT HE DID KNOW
ABOUT.
>> I GUESS THE ISSUE WOULD
BE, THAT, IF, RULING HAD
BEEN OBTAINED ON THE
RICHARDSON VIOLATION, THEN
THE, RECORD WOULD BE
DEVELOPED.
I'M JUST TRYING TO SORT OF
GIVE IT IN A LIGHT MOST
FAVORABLE TO THE DEFENDANT,
THAT HE MIGHT HAVE HAVE,
REPRESENTED IT DIFFERENTLY
TO THE JURY IN HIS OPENING
STATEMENT.
>> I DON'T BELIEVE SO.
I THINK THAT WAS EXPLORED
AND NEGATED BECAUSE THE
COURT SAID, AND THE COURT
SAID THE STATE IS NOT GOING
TO INTRODUCE THESE 16
PHOTOGRAPHS EVEN IF THEY
WERE ALLOWED TO BE IN.
>> WHAT CHANGED BETWEEN WHEN
HE REPRESENTED TO THE JURY
THAT, A WITNESS WAS GOING TO
TESTIFY AND, TO WHETHER HE
DECIDED NOT TO CALL
DR. WRIGHT?
BECAUSE NORMALLY THAT'S THE
KIND OF THING WE LOOK AT AND
SAY, THAT'S NOT GOOD WHEN A
DEFENSE LAWYER DOES THAT,
MAKES A REPRESENTATION ABOUT
TESTIMONY AND A WITNESS, A
KEY WITNESS, AND THEN,
DOESN'T CALL THAT WITNESS.
THEY LOSE CREDIBILITY WHEN
THEY DO THAT.
>> SURE.
ONE CAN ONLY SPECULATE THAT
IT WAS DR. WRIGHT WAS GOING
TO SAY, WELL, YOU KNOW BASED
ON EVERYTHING I'VE SEEN
THESE OTHER PHOTOGRAPHS I'VE
SEEN I CAN'T SAY WITH
CONFIDENCE, A, B OR C.
HE WOULD KNOW THAT AND
CERTAINLY, THAT WAS ALWAYS
AVAILABLE TO THEM BUT WE
DON'T HAVE, NO ONE'S
PRESENTED THAT.
WE DON'T HAVE A PROFFER AS
TO WHAT --
>> ISN'T THAT WHAT WE WOULD
HAVE EVIDENTIARY -- HERE WE
WERE JUST TALKING ABOUT
WHETHER THERE SHOULD BE AN
EVIDENTIARY HEARING ON ANY
CLAIM AND, I'M SORT OF, IT'S
LEFT UP IN THE AIR TO ME
WHAT IT WAS THAT WOULD HAVE
CAUSED THIS DEFENSE ATTORNEY
TO GO FROM REPRESENTING TO
THE JURY THAT THEY'RE GOING
TO HAVE THIS TESTIMONY THAT
IS GOING TO REFUTE HAC THEN
DECIDING NOT TO CALL THE
WITNESS THEY REPRESENT THEY
WERE GOING TO CALL.
>> I THINK IT WAS GRUESOMENESS
OF THE PICTURES.
THE FACT THAT THE STATE, IF
THE ABSOLUTER HAD NOT COME
DOWN ON THE RICHARDSON
VIOLATION, STATE SAID YOU
CAN GO LOOK.
DR. WRIGHT CAN GO LOOK AT
PICTURES BUT I'M GOING TO
LET PICTURES COME IN HE
DIDN'T WANT A CHANCE AT THAT
I DON'T THINK DR. WRIGHT
WOULD BE ABLE TO EXPLAIN AND
DIDN'T WANT NEW JURORS
LOOKING AT 12 OR 16 PICTURES
SHOWED WHAT CARNAGE OCCURRED
DURING THE COURSE OF THIS
MURDER.
WHAT HAPPENED.
>> HELP ME THEN.
ARE THESE PHOTOS, THESE NEW
PHOTOS, WERE THEY BETTER
PHOTOS OF THE WOUNDS AT
ISSUE?
>> I HAVEN'T THE FOGGIEST
NOTION BECAUSE I HAVE NEVER
SEEN THEM TRUTHFULLY.
THEY WEREN'T INTRODUCED.
ALL WE KNOW THEY WERE NEW
PHOTOGRAPHS.
THERE IS NO DESCRIPTION OF
THESE PHOTOGRAPHS.
THERE IS NOTHING ABOUT THESE
PHOTOGRAPHS EXCEPT TO SAY
THERE WAS RICHARDSON
VIOLATION AND WE DIDN'T HAVE
THEM.
THEY WERE MADE AVAILABLE TO
DR. WRIGHT THOUGH.
AGAIN GETTING BACK TO THIS.
THE ISSUE AS IT IS PRESENTED
BEFORE THIS COURT IS THAT
THE LAWYER WAS INEFFECTIVE
FOR FAILING TO TO OBJECT TO
NOT HAVING A RULING.
HE DIDN'T NEED THAT RULING
TO HAVE DR. WRIGHT TESTIFY
TO THOSE PHOTOGRAPHS.
IF HE, INTERESTED IN THOSE
PHOTOGRAPHS, YOU KNOW.
THAT'S WHAT I'M SAYING THIS
IS COUNTERINTUITIVE TO MY
THOUGHT PROCESS SAY OKAY I
WANT A RICHARDSON VIOLATION
BECAUSE THE STATE SHOULD BE
PREVENTED FROM LAYING THESE
PICTURES OUT.
STATE IS SAYING WE'LL NOT
LET THEM IN.
THEN HE SAYS I DON'T WANT MY
DOCTOR TO COME IN AND
TESTIFY.
DOESN'T THAT THINK YOU
PERHAPS THE PHOTOGRAPHS
MIGHT HAVE BEEN PRETTY BAD.
>> THEY WERE NEVER USED?
>> NO.
>> THEY WERE NEVER PRESENTED
TO JURY.
STATE NEVER USED THEM.
>> NO.
>> THE DEFENSE NEVER USED
THEM?
>> CORRECT.
I GUESS THEY'RE NOT MAKING A
DIRECT CLAIM.
THAT'S WHAT I'M SORT OF,
CONFUSED ABOUT.
THAT, THE DEFENSE LAWYER WAS
INEFFECTIVE FOR REPRESENTING
THAT HE WOULD CALL
DR. WRIGHT AND THEN NOT
CALLING IT.
THAT'S NOT A SEPARATE CLAIM
HERE.
>> THAT'S THE KIND OF CLAIM
THEY'RE TRYING TO MAKE.
>> BUT THEY'RE NOT SAYING
THAT.
THEY'RE SAYING OTHER WAY
AROUND.
>> THEY'RE MORPHING THAT.
STARTS OUT BY THE RICHARDSON
VIOLATION THAT WE DON'T HAVE
A RULING.
THE RULING MONTH NOTHING.
THE RULING IS AGAIN A RED
HERRING I HATE TO USE THAT
WORD BUT IT'S A RED HERRING
WITH REGARD TO WHAT THEY'RE
REALLY TRYING TO GET AT.
IT DIDN'T MATTER.
THE RULING HAD NOTHING TO DO
WHETHER IT WAS ARTICULATED
VERBALLY OR WRITTEN OR, THE
ACTIONS OF THE COURT IN
SAYING PLEASE, HE WAS ALMOST
BEGGING IF YOU WANT TO PUT
DR. WRIGHT ON THE STATE IS
NOT GOING TO USE THE 16
PICTURES.
THEY HAVE THE OTHER TWO YOU
WANT TO USE.
HAVE AT IT.
DO IT.
HE TOLD THE COURT WHAT HE
WAS GOING TO USE THEM FOR.
WHAT DR. WRIGHT WOULD HAVE
TESTIFIED TO.
HE DIDN'T SAY ANYTHING.
AGAIN --
>> WAS THERE AN ALLEGATION
MADE THAT THESE PICTURES MAY
HAVE CHANGED OR AIDED WRIGHT
IN FORMING HIS OPINION ABOUT
THESE?
AND THAT THAT TRULY WAS THE
RICHARDSON VIOLATION, NOT
HAVING THEM EARLIER SO THAT
DR. WRIGHT COULD USE THEM.
>> IT WAS NEVER ARTICULATED
THAT WAY, NO.
NO, NO.
IT WAS THESE PICTURES ALL OF
SUDDEN CAME ABOUT, B.
>> THAT MIGHT BE A DIFFERENT
SCENARIO.
>> THAT MIGHT BE A DIFFERENT
SCENARIO.
I MIGHT BE STRUGGLING A
LITTLE HARDER TRYING TO MAKE
THIS ARGUMENT.
IT STILL GETS DOWN TO THE
BOTTOM LINE.
THE EVIDENCE THAT CAME IN
WAS THAT SHE DIED FROM THREE
BLOWS, TO THE HEAD.
SHE HAD TWO TO THE BASE, ONE
TO THE SIDE OF THE HEAD, TWO
TO THE BASE OF THE HEAD.
AND THE TESTIMONY OF THE
MEDICAL EXAMINER SAID THEY
WERE BASED, THOSE BLOWS
OCCURRED, SHE HAD A
FRACTURED SKULL AND IT WAS A
RESULT OF THE HAMMER HITTING
HIT AND MAY BE BEING KICKED
BY A SHOE.
THERE IS NO DISPUTE, THAT
THOSE OCCURRED AND THERE IS
NO DISPUTE THAT DR. WRIGHT
EVEN IN HIS PROFFER WOULD
HAVE TESTIFIED THAT THERE
MIGHT HAVE BEEN A FRACTURE.
BOTTOM LINE IS, HIS, THE I'M
SORRY, THE BOTTOM LINE, IS
HE WAS MAKING A --
>> I'M GETTING READY TO
JUMP.
>> WE'RE TRYING TO, HE IS
TRYING TO MAKE AN ARGUMENT
THAT THE HEINOUS, ATROCIOUS,
CRUELING A STRAIGHTING
FACTORS WOULD HAVE BEEN
UNDERCUT BY THIS EVIDENCE.
THIS WAS HIS WHOLE BIG
SCENE.
THERE IS NO WAY THAT WOULD
HAPPEN.
BOTTOM LINE IS THIS LITTLE
GIRL WAS, MADE NUDE,
STRIPPED DOWN NUDE.
SHE WAS TAKEN TO AWAY FROM
THE BOWLING ALLEY.
SHE WAS HIT ON THE HEAD.
SHE HAD A FRACTURE OF HER
HEAD.
SHE WAS HIT THREE TIMES BY
THE MEDICAL EXAMINER.
THERE IS BLOOD BY THE --
>> BY THE MEDICAL EXAMINER'S
TESTIMONY?
PARDON ME?
>> THAT SHE WAS HIT THREE
TIMES?
>> YES.
>> THANK YOU.
>> SHE HAD SCRAPINGS UNDER
HER FINGERNAILS?
>> THERE WERE SCRAPINGS, YES
UNDER HER FINGERNAILS
CONNECTED TO BLOOD BUT I
DIDN'T SEE ANYWHERE IN THE
RECORD THAT THEY TYPED IT TO
WHAT KIND OF BLOOD IT WAS.
BUT THERE WAS BLOODY MATTER
UNDER HER FINGERNAILS.
>> DOESN'T SAY WHETHER IT
WAS HERS BUT THERE WAS NO
SCRATCHES ON THE DEFENDANT?
>> HE HAD NO WOUNDS THAT WE
KNOW OF.
AND THERE WAS NEVER ANY,
QUESTION OF THOSE KIND OF
WOUNDS THAT THEY WERE
SCRATCH MARKS.
THERE IS BLOOD ON HIS VAN.
'S BLOOD ON THE SEAT OF HIS
VAN THAT ARE BOTH B TYPE,
WHICH IS, I DON'T KNOW IF I
HAVE THIS RIGHT BUT HER
BLOOD.
MAKE SURE.
YOU KNOW I WROTE IT DOWN.
BUT I BELIEVE HER BLOOD WAS
B OR AND HIS WAS A.
WHATEVER HER BLOOD TYPE WAS,
IT WAS CONSISTENT WITH HER
BLOOD TYPE.
HER CLOTHING NONE OF HER
CLOTHING HAD ANY BLOOD WHICH
MEANT SHE HAD BE STRIPPED
BEFOREHAND.
THE CLOTHING WERE HERE THERE,
AND YON THE IN FACT THE
HAMMER WHICH HAD PAINT CHIPS
TO HIS VAN BECAUSE HE WAS A
PAINTER WAS, FOUND NEAR THE
BODY IN THE CANAL.
THERE WAS A BLOUSE, PINK
BLOUSE SHE HAD BEEN WEARING
THAT DAY WAS IN HIS VAN.
THERE WAS A STATEMENT BY THE
MOTHER THAT SAID THE CHILD
HAD NOT BEEN IN MR. ROSE'S
VAN FOR OVER A YEAR.
THEY HAD, THEY HAD,
RELATIONSHIP.
THEY HAD BEEN DATING.
OTHER CLOTHING WERE
SCATTERED AROUND.
I'M TRYING TO THINK OF WHAT
OTHER PHYSICAL EVIDENCE
RELATES TO THIS THOSE ARE
MAIN ISSUES OF THE PROBABLY
SOME OTHER ISSUES.
PHYSICAL EVIDENCE THAT TIED
HIM IN.
THERE IS CLEARLY IT WAS
CIRCUMSTANTIAL TO THE EXTENT
NO ONE SAW THE MURDER OCCUR
BUT IT WAS VERY STRONG CASE
WHICH REQUIRES
CIRCUMSTANTIAL EVIDENCE AND
THE TYING OF THE TIMELINE OR
ALL THESE OTHER MATTERS
DIDN'T MATTER.
I HAVE 12 MORE SECONDS.
>> YOU'RE OVER 12 SECONDS.
>> I'M OVER?
>> BRING IT TOCLUSION IN ONE
MINUTE.
>> ONE MINUTE AS TO THE
JUROR, AGAIN ISSUE AS TO THE
JUROR, DEMATTEIS SHE DID NOT
ASK WHETHER THERE WAS DEATH
PENALTY OR HE GOT DEATH
PENALTY.
SHE ASKED, WHAT IS GOING ON
HERE?
ARE WE GOING TO GET SOME
EVIDENCE?
I THINK IF YOU CLEARLY READ
THE WHOLE SCENARIO THERE YOU
WILL SEE STATE AS WELL AS
THE COURT, EXPLAINED TO HER
AND EXPLAINED TO ANOTHER
JUROR, HUOSER THIS WAS
SENTENCING.
THIS WAS THEIR OPPORTUNITY
TO HEAR EVIDENCE.
IN FACT THE PROSING TO
ATTORNEY, MR. RAY, SAID TO
HER, IF YOU HAVE A MAKE A
DECISION RIGHT NOW, CAN YOU.
SHE SAID NO.
YOU DON'T HAVE ANY EVIDENCE?
YOU DON'T KNOW HOW TO -- SO
IT'S NOT MARTIE THAT ANYBODY
WAS TAINTED OR IN FACT THAT
HE SAID, OR THERE WAS ANY
ISSUE WITH REGARD TO
IMPROPERLY APPRISE!!ING SKEWING
THE JURY WITH REGARD TO WHAT
THEIR JOB WAS.
THANK YOU.
>> OKAY.
TWO MINUTES.
>> IT WAS -- WITH REGARD TO
THE SMOKE SCREEN THE FACT IT
WASN'T RAISED ON DIRECT
APPEAL, THERE WAS AN
OBJECTION MADE.
THAT WASN'T RAISED UNDER
DIRECT APPEAL.
THAT IS WHOLE IDEA.
HAD MR. SENGAL MADE THAT
OBJECTION IT HAVE BEEN
PRESERVED.
THE FACT IT WASN'T.
THE STATE ARGUED ENTIRE TIME
HOW STRONG THE CASE WAS.
NOW THEY'RE ARGUING AGAIN
IT'S A STRONG CIRCUMSTANTIAL
EVIDENCE CASE.
IT'S A CIRCUMSTANTIAL
EVIDENCE CASE.
THAT'S WHY, IN A CASE LIKE
THIS, --.
>> SO WHO WAS, HOW WAS THE
WHOLE NOTION OF THE TIMELINE
RELEVANT TO THE STATUTORY
MITIGATOR -- MITIGATING
EVIDENCE?
>> BECAUSE THE TIMELINE AND
WHAT WAS ATTACKED WAS THE
INTERPRETATION OF TWO
WITNESSES WHO TALKED ABOUT
THE TIME PERIOD AND WHEN
THEY SAW MR. ROSE.
THEY WERE SAYING THAT'S ALL
A SMOKE SCREEN.
THE TIMELINE THAT THE
DEFENSE IS TALKING ABOUT IS
SMOKE SCREEN.
WHAT HAPPENED, MR. SENGAL
ESTABLISHED THIS TIMELINE TO
SHOW THAT ALL OF THE ACT
THAT IS THE STATE SAID
MR. ROSE DID TO THIS CHILD,
HE COULDN'T HAVE IN THE
PERIOD OF TIME THAT HE WAS
ALLOTTED BASED ON ALL THE
WITNESSES WHERE THEY SAW
MR. ROSE, WHERE THEY PLACED
HIM THE TIME AND HOW LONG IT
TOOK THE DECK TO DRIVE FROM
THE BOWLING ALLEY TO THE
POINT WHERE THE BODY WAS,
BACK TO THE BOWLING ALLEY.
IT WOULD HAVE BEEN, MR. SE
IN.
GAL'S ARGUMENT IT WOULD HAVE
BEEN IMPOSSIBLE FOR MR. ROSE
TO HAVE DONE ALL THE STATE
SAID HE DID.
NOW, GRANTED ANOTHER JURY
FOUND HIM GUILTY OF THE
CRIME BUT THE WAY THE STATE
IS TELLING YOU THIS JURY,
THE WAY THEY'RE TELLING YOU
THIS JURY HOW IT HAPPENED,
THAT COULDN'T HAVE HAPPENED
BASED ON THE TIMELINE.
AND THAT'S WHY THE TIMELINE
BECAME SO IMPORTANT.
AND HOW --
>> HOW IT HAPPENED MEANING
HOW THE MURDER HAPPENED?
>> PARDON?
>> WHEN YOU SAY HOW IT
HAPPENED HOW THE MURDER
HAPPENED?
>> EXACTLY THE EXACTLY.
>> NOT WHETHER OR NOT THE
FACTS OF THE MURDER
DEMONSTRATE THAT IT WAS HAIN
JUST, ATROCIOUS AND CRUEL?
>> BUT THE WHOLE IDEA,
BEHIND THE STATE ARGUMENT
WAS HE HAD THE TIME TO DO
ALL THESE HORRIBLE THINGS TO
THIS GIRL, TO MAKE IT
HEINOUS, ATROCIOUS AND
CRUEL.
THAT'S WHERE THE TIMELINE
WOULD HAVE NEGATED THAT AS
WOULD HAVE DR. WRIGHT
TESTIMONY.
AS I POINT OUT, IN THE,
MSENGAL, PAGE 848 OF THE
TRANSCRIPT HE TELLS THE JURY!!IRY
WHAT DR. WRITE IS GOING TO
TESTIFY TO.
WHY IT'S SUCH AN IMPORTANT
WITNESS.
HE WILL CONTRADICT ABOUT THE
EXPERT SAID ABOUT THE CAUSE
OF DEATH, MANNER OF DEATH
AND HOW IT HAPPENED WHICH
THE STATE RELIED UPON IN
ESTABLISHING THE FACTORS.
THAT'S WHY IT'S SO
IMPORTANT.
WHY AT THE VERY LEAST, AT
THE VERY LEAST WE SHOULD BE
ENTITLED TO HAVE EVIDENTIARY
HEARING TO BRING THOSE
WITNESSES IN.
BRING IN MR. SINGAL.
BRING IN DR. WRIGHT AROUND
LET HIM TESTIFY TO THE TRIAL
COURT AND LET THE TRIAL
COURT MAKE A DECISION BASED
ON WHAT THEY SHOULD HAVE
HEARD.
IN FACT THAT MR. ROSE WAS
PREJUDICED BY HAVING THIS.
>> WITH THAT AND MORE YOU'VE
COVERED YOUR TIME AS WELL.
>> THANK YOU.
>> COURT WILL STAND IN
RECESS UNTIL 9:00 TOMORROW
MORNING.
>> PLEASE RISE.