David M. Deren v. State of Florida

SC07-1700

THE FINAL CASE ON OUR CALENDAR
THIS MORNING IS DEREN VERSUS
STATE OF FLORIDA. 
>> MAY IT PLEASE THE COURT. 
PAUL MORRIS ON BEHALF OF THE
PETITIONER, 
DAVID DEREN. 
THIS CASE IS ABOUT A
PROSECUTOR'S BRADY VIOLATION AS
WELL AS THE PROSECUTOR'S 
MISREPRESENTATION TO THE JURY IN HER
CLOSING STATEMENT ABOUT THAT
CONCEALMENT. 
AND THE CHARGES AROSE IN THIS
CASE FROM A BAR FIGHT INVOLVING
MY CLIENT, MR.^DEREN, A
CODEFENDANT, MR.^STEWART AND THE
STATE'S STAR WITNESS, THE
BOUNCER AT THE BAR,
MR.^FITZPATRICK. 
THE DEFENSE WAS THAT THE BAR
BOUNCER WAS THE AGGRESSOR IN
THE BAR FIGHT. 
THE CREDIBILITY OF THE
WITNESSES WAS THE KEY ISSUE AT
TRIAL. 
>> I GUESS WHAT THIS, WE KNOW
THAT THE FOURTH DISTRICT WAS
INCORRECT IN ADDING AN ELEMENT
THAT'S BEEN ELIMINATED, THAT IS,
DUE DILIGENCE. 
BUT AS YOU'RE WELL AWARE WE
HAVE MANY CASES THAT TALK ABOUT
SOMETHING BEING EQUALLY
AVAILABLE. 
NOW, I THINK THIS IS NOT QUITE
IN THOSE CATEGORY, BUT THAT,
APPARENTLY -- WERE YOU TRIAL
THE LAWYER? 
>> NO, YOUR HONOR, I WAS NOT. 
>> THE TRIAL LAWYER WAS AWARE
THAT MR.^, BARTENDER, BOUNCER,
HAD A WORKERS' COMPENSATION
CLAIM PENDING, CORRECT?
>> YES. 
>> AND SO, IN TERMS OF IT, DID
THEY USE THAT, SINCE YOU WOULD
KNOW, THAT IF SOMEONE WAS AN
AGGRESSOR THEY WOULDN'T BE ABLE
TO OBTAIN WORKERS' COMPENSATION
BENEFITS. 
WAS THAT USED BY TRIAL COUNSEL
DURING THE CASE TO SAY THAT
HE'S GOT AN INTEREST, HE'S, YOU
KNOW, HE IS GETTING WORKERS'
COMPENSATION BENEFITS?
>> NO, YOUR HONOR. 
AND WE DRAW A DISTINCTION AS
THE FOURTH DISTRICT DID NOT
BETWEEN KNOWLEDGE THAT DEFENSE
COUNSEL HAD, WHICH IS THAT
THERE WAS A CLAIM PENDING, AND
THE KNOWLEDGE THAT THE
PROSECUTOR HAD FROM THE
INSURANCE CARRIER, THE WORKERS'
COMP CARRIER THAT AS OF THE
DATE OF THE LETTER TO THE
PROSECUTOR, WHICH WAS JUST TWO
MONTHS PRIOR TO THE TRIAL, THAT
THE HARTFORD HAS PAID ALMOST
$21,000 IN MEDICAL AND ALMOST
$3,000 IN LOST WAGES AND
MR.^FITZPATRICK'S CLAIM IS
STILL OPEN, AND WE CONTINUE TO
PAY BENEFITS. 
>> HAS THE VICTIM DEPOSED PRIOR
TO TRIAL?
>> YES THE VICTIM WAS DEPOSED
IN MAY OF 2005. 
THIS LETTER TO THE PROSECUTOR
HOW FAR WAS IN JANUARY, LATE
JANUARY OF 2006, JUST ABOUT
SEVEN WEEKS BEFORE THE TRIAL
COMMENCED. 
AND THE PROSECUTOR DID NOT
DISCLOSE THIS LETTER TO DEFENSE
COUNSEL --
>> WAS THE VICTIM ASKED WHETHER
OR NOT HE WOULD, WAS HE
RECEIVING WORKMAN'S COMP
BENEFITS?
>> AT THE TRIAL I DON'T
BELIEVE THAT THAT QUESTION CAME
UP ALTHOUGH THE FOURTH DISTRICT
BELIEVED THAT DEFENSE COUNSEL
HAD CROSS-EXAMINED THE BOUNCER
ABOUT THAT BUT THAT DID NOT
OCCUR. 
IN FACT, WHAT IT SEEMS THAT
DEFENSE COUNSEL DEEMED A
NON-ISSUE DURING THE CASE. 
>> HOW ABOUT DURING THE
DEPOSITION?
THAT WAS THE FIRST QUESTION
THAT YOU RAISED IN THE
DEPOSITION. 
WAS THERE SOME DISCUSSION ABOUT
COMP BENEFITS OR ANYTHING LIKE
THAT?
>> IN THE DEPOSITION, DEFENSE
COUNSEL WAS MADE AWARE THERE
WAS A WORKERS' COMP CLAIM. 
SO THE QUESTION IS, IS THERE A
MATERIAL DIFFERENCE BETWEEN THE
KNOWLEDGE THAT THERE'S A CLAIM
PENDING, AND THE TYPE OF
INFORMATION THAT THE HARTFORD
GAVE TO THE PROSECUTOR TWO
MONTHS BEFORE TRIAL?
WE WOULD ANALOGIZE IT TO THIS
COURT'S HAIR ANALYSIS CASES
SUCH AS ALLEN AND HOFFMAN,
WHEREIN BOTH THOSE CASES
DEFENSE COUNSEL KNEW THERE WAS
HAIR ANALYSIS TEST. 
>> WE HELD IT WOULD NOT HAVE
MADE A DIFFERENCE?
THERE WAS NO PREJUDICE,
CORRECT? 
>> IN ALLEN THERE WAS NO
PREJUDICE, 
BUT HOFFMAN THERE WAS. 
>> SPEAKING ON PREJUDICE, ON
THAT PRONG, DON'T YOU HAVE TO
DEMONSTRATE NOT IMPEACHMENT OF
WORKERS' COMP ITSELF WOULD HAVE
MADE A DIFFERENCE AT THE TRIAL
BUT THE DIFFERENCE BETWEEN
IMPEACHING ON THE FACT THAT HE
HAD A WORKERS' COMP CLAIM AND
IMPEACHING ON THE FACT OF,
$24,000 THAT HE HAD IN
WORKERS' COMP BENEFITS, THAT
THAT DIFFERENCE WOULD HAVE,
PROBABLY CHANGED THE RESULT AT
TRIAL?
>> WELL, WE SUBMIT THAT THIS
KIND OF VERY SPECIFIC
IMPEACHMENT EVIDENCE, THE
LETTER DISCLOSES, DOES, THAT'S
EXACTLY IN A VERY CLOSE CASE
SUCH AS THIS. 
THIS IS AS CLOSE AS THEY COME. 
>> BUT YOU ALREADY HAD
IMPEACHMENT EVIDENCE THAT HE
HAD A WORKERS' COMP CLAIM?
>> DEFENSE COUNSEL ONLY KNEW
THERE WAS A CLAIM PENDING. 
>> EXACTLY. 
>> DIDN'T KNOW THE RESULTS OF
THE CLAIM. 
HOW DOES THAT SO CHANGE THE
CASE AS TO MAKE IT PROBABLE
THAT THERE WOULD HAVE BEEN A
DIFFERENT OUTCOME IF YOU WOULD
HAVE KNOWN, NOT ONLY THAT HE
HAD A WORKERS' COMP CLAIM BUT
THAT HE GOT $24,000 IN
BENEFITS?
>> IT SO CHANGES THE CASE YOUR
HONOR IT UNDERMINES CONFIDENCE
OF THE VERDICT BECAUSE THE JURY
WAS DENIED SPECIFIC INFORMATION
THAT THE VICTIM HAD FINANCIAL
INCENTIVE IN THE OUTCOME OF
THIS CASE. 
>> DIDN'T THE DEFENSE ATTORNEY
HAVE SOME OBLIGATION?
HE KNEW THERE WAS A WORKERS'
COMP CLAIM PENDING. 
DIDN'T HE HAVE SOME OBLIGATION
TO, TO AT LEAST ASK THE
WITNESS, HAS THAT, HAVE YOU
RECEIVED ANY BENEFITS FROM THAT
THAT PENDING WORKERS COMP?
SEEMS TO ME, THAT IS A NATURAL
THING WOULD FOLLOW FROM KNOWING
THAT SOMEONE HAD A WORKERS'
COMP CLAIM PENDING?  SO, HE HAD
NO OBLIGATION TO FOLLOW THROUGH
WITH THAT?
>> NO, MORE THAN THE DEFENSE
COUNSEL HAD THAT OBLIGATION IN
THIS COURT'S ROGERS DECISION OR
IN THE HAIR ANALYSIS CASES. 
THE OBLIGATION HERE IS ON THE
PART OF THE PROSECUTOR. 
>> I AGREE THERE IS OBLIGATION
ON THE PART OF THE PROSECUTOR. 
IF WE GO THIS ROUTE THERE WAS
ENOUGH TO PUT THE DEFENSE
LAWYER ON NOTICE.
DID YOU PLEAD
THIS ALTERNATIVELY AS
INEFFECTIVE ASSISTANCE OF
COUNSEL CLAIM FOR NOT PURSUING
IT?
>> NO, YOUR HONOR, AND WE DO
NOT THINK THE FOURTH DISTRICT
ANALYSIS IS CORRECT IS
ESSENTIALLY FRAMING IT AS
INEFFECTIVE ASSISTANCE OF
COUNSEL CLAIM. 
THE FOURTH DISTRICT IS SHIFTING
DUTY FROM THE PROSECUTOR WHICH
IN A LONG LINE OF CASE THIS IS
COURT HAS HELD THAT'S WHERE THE
DUTY IS AND PLACING IT ON THE
DEFENSE COUNSEL IN SEVERAL
CASES WHERE THIS COURT SAID
THAT ISN'T THE DUTY. 
>> THIS COURT HAS DRAWN A
DISTINCTION WHICH, I AGREE
SEEMS SOMEWHAT NEBULOUS AT
TIMES BETWEEN RECORDS WHICH ARE
EQUALLY AVAILABLE TO THE
DEFENSE, AND THE DUE DILIGENCE
PRONG. 
NOW, WASN'T THIS RECORD,
AVAILABLE?
>> NO, IT WAS NOT, YOUR HONOR. 
IT WASN'T EVEN IN EXISTENCE
WHEN DEFENSE COUNSEL WAS
ENGAGED --
>> BUT IT WAS AVAILABLE TO
CONTACT, ONCE YOU KNEW THERE
WAS A, CLAIM?
>> WELL, I THINK THAT, THE
QUESTION IS, WHAT WOULD DEFENSE
COUNSEL HAVE DISCOVERED IF HE
HAD PERSUADED IT IN SAY, MAY OF
2005?
>> WAS THERE A LETTER WRITTEN
ACTUALLY TO THE PROSECUTOR?
>> YES IT WAS. 
>> IT WAS ACTUALLY DIRECTED TO
THE PROSECUTOR ADVISING OF ALL
THESE BENEFITS --
>> EXACTLY. 
>>  -- THAT HE HAD RECEIVED?
>> YES. 
>> AND YOUR ARGUMENT, WHICH
SEEMS TO BE TO ME PRETTY
PERSUASIVE, THE PROSECUTOR
SAYS, IN CLOSING ARGUMENT,
THAT NOBODY HAS A STAKE IN ANY
OF THIS?
>> YES. 
THE PROSECUTOR SAID THAT NOT
ONE OF MY WITNESSES HAS A STAKE
IN THE OUTCOME OF THIS CASE. 
SHE SAID THAT WHILE SHE WAS HE
POSSESSING THIS LETTER WITH THE
DOLLAR AMOUNTS NOT JUST OF
MEDICAL BENEFITS BUT OF LOST
WAGES. 
>> WAS THIS A LITIGATED COMP
CLAIM?
DO WE KNOW THAT FROM THE RECORD?
>> I'M SORRY, YOUR HONOR?
>> WAS THIS IS A LITIGATED COMP
CLAIM? DO WE KNOW THAT FROM THE
RECORD?
GENERALLY COMP BENEFITS ARE
AUTOMATIC AND THEY START PAYING
THOSE. 
THAT WOULD HAVE BEEN KNOWN FROM
SHORTLY AFTER THE ACCIDENT. WAS THAT
AN IMPORTANT DISTINCTION? 
WAS THIS SOMETHING THAT BENEFITS
DENIED?
IS IT CONTESTED CLAIM?
DO WE KNOW ANYTHING AT ALL
ABOUT THAT? 
>> NO, WE DON'T. 
>> DON'T. 
>> WHAT WE KNOW DEFENSE COUNSEL
WAS, THE MERE EXISTENCE OF THE
CLAIM. 
WE SUBMIT THAT IS DIRECTLY
ANALOGOUS TO --
>> DID DEFENSE COUNSEL HAVE
ARGUED THAT HE DOES HAVE
GOTTEN, RIGHT AFTER THE STATE
PROSECUTOR MADE THAT ARGUMENT,
ABOUT NO INTEREST, SAID, THIS
GENTLEMAN DOES HAVE AN
INTEREST?
HE HAS GOT A WORKMAN'S COMP
CLAIM. 
IF HE GETS UP HERE ADMITS
CONTRARY TO THAT -- THAT
CLAIM?
>> THAT WOULD HAVE BEEN A VERY
DANGEROUS ARGUMENT NOT BEING
EQUIPPED FROM THE LETTER FROM
THE HARTFORD BECAUSE THE
PROSECUTOR WOULD SAID IT'S 
DOMINIONS, LADIES AND
GENTLEMEN OF THE JURY. 
>> BUT THAT DIDN'T HAPPEN? 
>> CORRECT. 
>> WHAT JUSTICE CANTERO ARGUING
DEFENSE COUNSEL BEING ABLE TO
GET UP AND SAY, HE HAS A CLAIM
AND, HE DOES HAVE A STAKE IN
THIS AND, MAYBE PRESENTED A
PARTICULAR LETTER?
>> YES. 
AND HERE'S WHAT DEFENSE COUNSEL
COULDN'T DO WITH THE
INFORMATION HE HAD. 
HE COULDN'T CROSS-EXAMINE THE
BOUNCER AND SAY, ISN'T IT A
FACT THAT YOU HAVE RECEIVED
ALMOST $21,000 MEDICAL
BENEFITS?
ISN'T IT A FACT THAT YOU HAVE
RECEIVED ALMOST $3,000 IN LOST
WAGES? ISN'T IT A FACT THAT
THESE BENEFITS ARE ON GOING AND
CONTINUING THROUGH THE
THROUGHOUT THIS TRIAL?
ISN'T IT A FACT IF YOU WERE THE
AGGRESSOR IN THIS BAR FIGHT?
HE WOULDN'T DO THAT. 
>> WE DON'T KNOW WHETHER OR NOT
HE COULD DO THAT. 
BECAUSE THAT'S A DOUBLE-EDGED
SWORD IN THIS CASE. 
THAT WOULD EMPHASIZE THE DEGREE
OF INJURIES. 
>> WE DO KNOW HE COULD HAVE
DONE THAT BECAUSE THAT'S WHAT
WE REPRESENTED IN MOTION FOR
NEW TRIAL. 
IF WE WOULD HAVE KNOWN THAT I
DOUBT THE PROSECUTOR COULDN'T
GOT AWAY WITH THE ARGUMENT
THAT TO THE JURY THAT HER
WITNESSES HAD NO STAKE IN THE
OUTCOME OF THIS CASE. 
>> WAS THERE NO OBJECTION MADE
TO THAT ARGUMENT?
>> NO AND WE WOULDN'T EXPECT
ONE BECAUSE THE DEFENSE COUNSEL
WOULDN'T HAVE THE LETTER. 

AND IN FACT,
THAT WOULD PROBABLY REASSURE
HIM THAT IT IS A
NONISSUE OF THE CASE,
ASSUMING THE CREDIBILITY OF
THE PROSECUTOR THAT SHE WAS
NOT MAKING A
MISREPRESENTATION. 
>> WHAT IS REALLY IMPORTANT
ABOUT THIS TYPE OF LETTER,
IN THIS TYPE OF CASE IS HOW
CLOSE THE JURY CAME TO A
COMPLETE ACQUITTAL OF --
ACQUITTAL OF MR. DEREN THE
HIGHEST OFFENSE IN THIS CASE
THE ACCUSATION BY THE BAR
BOUNCER THAT MY CLIENT HIT
HIM OVER THE HEAD FOUR TIMES
WITH A BAR STOOL, THE MOST
SERIOUS OFFENSE, THE JURY
ACQUITTED MY CLIENT OF THE OFFENSE
THE ONLY WAY THEY COULD HAVE
DONE THAT OF COURSE, WAS
CREDIBILITY PROBLEMS WITH
THE BAR BOUNCER.
THEY DISCREDITED HIS
TESTIMONY, THAT HE WAS HIT
OVER THE HEAD FOUR TIMES
WITH A BAR STOOL, RETURNED A
VERDICT ON LESSER OFFENSES
IN THIS TYPE OF CASE IF THE
JURY HAD ALSO KNOWN, ABOUT
THE FINANCIAL INCENTIVE TO
TESTIFY AS HE DID, THERE
COULD VERY WELL HAVE BEEN A
COMPLETE ACQUITTAL, AND IN
FACT, MY CLIENT, ON THIS
RECORD, MAY WELL BE
COMPLETELY INNOCENT OF
CHARGES WHEN WE LOOK AT THE
PROBLEMS THE STATE HAD WITH
THE CASE CREDIBILITY OF THE
CLIENT MAYBE WHY THE
PROSECUTOR MADE THAT CLOSING
ARGUMENT SHE DID.
>> WHAT ABOUT LESSER
INCLUDED OFFENSE CHARGES?
WE ALL KNOW THE POSSIBILITY OF
JURY PARDONS, CORRECT?
>> THAT IS CORRECT YOUR
HONOR. 
>> AND I THINK WE HAVE SAID
IN THAT JURY PARDONS ARE
GIVEN WHERE THE EVIDENCE
SUPPORTS CONVICTION OF THE
GREATER OFFENSE BUT THE JURY
FOR SOME REASON WANTS TO
CONVICT OF THE LESSER
OFFENSE, AND SO I'M NOT SURE
THAT I AGREE WITH YOUR
ARGUMENT THAT BECAUSE THE
JURY FOUND A BATTERY AND DID
NOT CONVICT OF THE GREATER
OFFENSE THAT THAT IS
NECESSARILY A CREDIBILITY
DETERMINATION OF THE
BOUNCER.
WHAT WE DON'T KNOW FOR SURE
BUT I THINK IT IS JUST AS
LIKELY IT IS THAT AS THE
JURY -- PARDON, EXCUSE ME --
ESPECIALLY WHEN WE LOOK AT
THE NATURE OF THE EVIDENCE
OF THE BAR FIGHT.
WHEN MY CLIENT WAS ARRESTED
AND TAKEN AWAY FROM THE
SCENE, THE BAR BOUNCER,
ACCORDING TO THE TESTIMONY
OF THE FIRST OFFICER ON THE
SCENE, BLEW KISSES AT
HIM.
AND THEN WHEN THE TOOK MY
CLIENT TO THE JAIL THE JAIL
REFUSED TO BOOK HIM.
>> LET ME GO BACK TO
SOMETHING, ABOUT -- SEQUENCE
OF EVENTS HERE, DIDN'T --
THE STATEMENTS NOW SEEKING
RESTITUTION FROM THE
DEFENDANT.
>> THE HARTFORD WAS
SEEKING IT THROUGH STATE
YES, YOUR HONOR.
>> WAS THERE IN FACT
RESTITUTION ORDERED IN THIS
AMOUNT?
>> YES. 
>> OKAY, SO AT THAT POINT,
WHEN HE REALIZED THE --
DEFENSE LAWYER REALIZED THIS
WAS OUT THERE DEFENSE LAWYER
MOVED FOR A NEW TRIAL
BASED ON VIOLATION OF BRADY.
>> CORRECT. 
>> AT ANY THERE IS -- NEVER HAS
BEEN AN ISSUE THAT THIS WAS
FAVORABLE TO THE
DEFENDANT; CORRECT?
THAT IS THE FOURTH DISTRICT
AGREES WITH THAT -- TRIAL
COURT AGREES IT ISN'T
FAVORABLE.
>> CORRECT.
>> SO THE ONLY ISSUE IS
MATERIALITY. 
>> YES.
>> NOW THE ORIGINAL JUDGE --
FOR THE CASE DENIED THE MOTION, STATED
THE LETTER WAS NOT MATERIAL.
>> THAT IS CORRECT. 
>> WHAT WAS THE JUDGE -- HIS
OR HER REASONING FOR FINDING
THAT IT IS NOT MATERIAL
WHICH YOU WOULD AGREE UNDER
THE BRADY MATERIALITY -- PRONG
IS A PREJUDICE PRONG UNDER
STRICKLAND, WHICH IS -- DOES IT
UNDERMINE CONFIDENCE IN THE
OUTCOME?
>> YES, YOUR HONOR.
>> A FACT IN LAW --
>> CORRECT. 
>> ALL RIGHT, WHAT SHOULD
THE JUDGE INDICATED TO WHY
THE JUDGE DID NOT FIND THE
LETTER TO BE --
>> SIMPLY IT DID NOT MEET
THE ISSUE OF MATERIALITY.
>> BASED ON WHAT?
>> THERE IS NO REASON.
>> NO SPECIFIC FINDINGS AS
TO WHY IT DIDN'T.
>> BUT IS THE STATE ARGUE --
>> THAT IT WOULD NOT HAVE
MADE A DIFFERENCE IN THE
OUTCOME OF THE CASE.
>> WHY?
>> THAT IT WAS NOT -- IT WAS
NOT MATERIAL AND I THINK --
AS WAS -- MENTIONED BEFORE,
I THINK IS ARGUED IN THE STATE
BRIEF THAT IT ACTUALLY WOULD
HAVE BROUGHT ADVERSE
EVIDENCE TO LIGHT ON THE
PART OF THE --
>> IN OTHER WORDS -- 
>> -- PART OF THE DEFENSE.
>> -- LEVEL, THE ISSUE OF
THE -- THAT THE DEFENSE
LAWYER SHOULD HAVE BEEN THE
ONE TO TRY TO OBTAIN THIS
INFORMATION, WAS
THAT MADE BY THE STATE?
>> THAT WAS NEVER MADE IN
TRIAL COURT OR IN THE
APPELLATE BRIEFS IN FOURTH
DISTRICT THAT WAS SUA SPONTE
BROUGHT UP BY FOURTH
DISTRICT.
>> IF WE DECIDE THAT THE
TRIAL -- FOURTH DISTRICT WAS
WRONG TO ADD THIS PRONG IN,
RATHER THAN MAKE THE
MATERIALITY DETERMINATION
ITSELF SHOULDN'T WE CONSIDER
REMANDING IT FOR THE -- I
KNOW YOU WOULDN'T LIKE THAT,
BUT FORFEITURE TO REALLY
LOOK AT THIS ISSUE, THEY
HAVE THE WHOLE TRANSCRIPT,
MAKE A DETERMINATION ON
MATERIALITY?
>> I WOULD ARGUE THAT THAT
IS AN UNNECESSARY DUPLICATION
OF JUDICIAL LABOR BECAUSE IT
IS DE NOVO DETERMINES THIS
COURT CAN MAKE THIS, THIS
RECORD.
>> BUT NORMALLY, WHEN WE DO
THOSE THINGS, WE DO IT IN
DEATH PENALTY CASES, BUT FOR
US TO -- THAT IS --
>> THERE IS NOTHING WRONG
WITH OUR DOING THAT.
AND, AGAIN, THE JUDGE DIDN'T MAKE
A -- DIDN'T DENY THE MOTION
BECAUSE OF DUE DILIGENCE,
THAT WAS NOT
EXPLORED AT ALL.
>> THAT IS CORRECT, YOUR
HONOR.
WE WOULD URGE THAT
UNDER WELL-SETTLED LINES OF
DECISIONS OF THIS
COURT AND EVEN -- UNITED
STATES SUPREME COURT AS WELL
EVEN IN CIVIL CASES,
FINANCIAL INCENTIVE OF A
WITNESS HAS ALWAYS BEEN
DEEMED BY THIS COURT TO BE A
MATERIAL ELEMENT OF SHOWING
BIAS, BUT --
>> YOUR -- CROSS EXAMINATION.
YOU KNEW ABOUT THE FINANCIAL
INCENTIVE WORKERS'
COMPENSATION CLAIM, YOU DID
NOT KNOW THE EXTENT OF THE
AWARD AT THE TIME -- THAT IS
WHAT WE ARE TALKING ABOUT,
NOT FINANCIAL INCENTIVE.
>> WE HAD -- DEFENSE COUNSEL
HAD NO IDEA THE BOUNCER WAS
RECEIVING LOST WAGES
BENEFIT.
>> HE DID HAVE AN IDEA HE
FAILED TO A WORK CLAIM.
>> HE DID -- WORKERS'
COMPENSATION AS LEGISLATURES
IN ALAN HOFFMAN KNEW A HAIR
ANALYSIS TEST WAS PENDING DIDN'T
KNOW THE RESULTS.
>> IN ALLEN WE FOUND NO
PREJUDICE.
>> THAT IS A DIFFERENT ISSUE
THAT GOES TO THE MATERIALITY
ISSUE, YES -- -- THERE --
>> I'M TALKING ABOUT THE
SAME THING, THE PREJUDICE,
BECAUSE HERE -- WHY DID YOU
-- PREJUDICE, IF THE DEFENSE
KNEW THERE WAS A WORKERS'
COMPENSATION CLAIM BUT
DIDN'T KNOW THE EXTENT OF
THE AWARD?
THAT GOES TO PREJUDICE.
WHETHER IT WOULD HAVE CHANGED
THE OUTCOME OF THE TRIAL.
>> YES, BUT I DRAW A
DISTINCTION BETWEEN DEFENSE
COUNSEL'S KNOWLEDGE, AND THE
TEST FOR PREJUDICE BECAUSE
DEFENSE COUNSEL'S KNOWLEDGE
GOES TO THE BRADY ELEMENT OF
SUPPRESSION, NOT THE ELEMENT
OF PREJUDICE, AND MAYBE THE
FOURTH DISTRICT HAD A
PROBLEM WITH CONFUSING THOSE
TWO ELEMENTS, BUT --
>> DID YOU REPRESENT HIM IN
THE FOURTH DISTRICT?
>> YES, I DID, YOUR HONOR.
>> WHEN THE FOURTH DISTRICT
PUT THESE FOUR ELEMENTS DID
YOU FILE A MOTION FOR
REHEARING? 
>> NO, YOUR HONOR, I DID NOT.
>> THAT THERE WERE THREE --
>> NO, NO, YOUR HONOR.
>> IS THERE ANY REASON WHY
NOT?
>> WELL, WE HAD A FOOTNOTE
IN OUR BRIEF, HOPEFULLY, NOT
IN ANTICIPATION OF THIS
COMING UP BUT JUST IN CASE,
ABOUT THIS DUE DILIGENCE, IN
OUR INITIAL BRIEF IN FOURTH
DISTRICT ABOUT DUE DILIGENCE
NOT BEING AN ISSUE IN THIS
CASE, AND WHEN THE STATE
RESPONDED IN THEIR BRIEF
SEEMINGLY AGREEING THAT IS
NOT IN ISSUE, THE ISSUE IS
REALLY MATERIALITY, WE
THOUGHT IT HAD BEEN EVIDENCE
PRESENTED TO FOURTH
DISTRICT, THEY HAD AN
OPPORTUNITY, DISAGREED WITH
US, WE'RE GOING TO TAKE UP --
>> -- YOU FILED THAT MOTION FOR
REHEARING THEN, CALLING
ATTENTION TO THEM THAT THEY
HAD APPLIED THE WRONG LEGAL
FORMAT.
>> THAT IS CORRECT, YOUR
HONOR, WE DID NOT.
>> WAS IT ORALLY ARGUED?
>> IT WAS ORALLY ARGUED. 
>> NO ISSUE WAS BROUGHT UP
DURING ORAL ARGUMENT ABOUT
DUE DILIGENCE.
>> WAS BROUGHT UP BY THE
PANEL IN FOURTH DISTRICT
ABOUT DUE DILIGENCE I
PRESENTED THE SAME ARGUMENT
I'M PRESENTING TODAY IT
WAS REJECTED THERE WAS NO --
>> HAS THIS OR -- SERVED HIS
TIME?
>> SERVED HIS ENTIRE SENTENCE,
HOPING TO CLEAR HIS NAME AND
HAVE ANOTHER CHANCE AT A FAIR
TRIAL IN THIS CASE.
I'D LIKE TO SAVE THE BALANCE OF
TIME FOR REBUTTAL, RESERVE ON
OUR SECOND POINT ON APPEAL
IN THE EVENT COURT WISHES TO
REACH THAT AS WELL.
>> IF IT PLEASE THE COURT,
ASSISTANT ATTORNEY GENERAL
FOR THE STATE OF FLORIDA --
AS WE STATED IN OUR BRIEF,
WE ACKNOWLEDGE THAT THE
STATE SHOULD HAVE TURNED
OVER THE LETTER.
HOWEVER, AS FAR AS OUR --
JUSTICE, YOUR CONCERN ABOUT
CLOSING ARGUMENT, IT IS VERY
CLEAR THAT THE PROSECUTOR
BELIEVED THAT THIS HAD NO
RELEVANCY, HAD NO POSSIBLE
IMPEACHMENT EVIDENCE, AND
WAS ONLY PRODUCING IT 
AT THE TIME OF RESTITUTION
THINKING THAT IT WAS LIMITED
TO THAT, THAT THERE WAS NO
ILL-WILL, THERE WAS NO --
>> DON'T THINK ANYONE --
THINKS A JULIO VIOLATION -- IF
A JULIO, WE WOULD BE IN A
WHOLE DIFFERENT SITUATION.
I THINK IT IS JUST THE ISSUE
THAT -- MY CONCERN, IS A LOT
OF THESE CASES WHERE WE HAVE
SAID SOMETHING IS EQUALLY
ACCEPTABLE HAVE BEEN, WHERE
IT IS THE DEFENDANT'S
RECORDS. 
>> RIGHT.
>> OR SOMETHING THAT THE
DEFENDANT HAS UNIQUE CONTROL
OVER. 
>> RIGHT.
THIS IS DIFFERENT
BECAUSE IT WAS SENT DIRECTLY
TO THE PROSECUTOR.
>> AND I MEAN I -- NOW,
WHETHER THE DEFENSE COUNSEL
SHOULD HAVE DONE FURTHER
DISCOVERY, THAT IS IN A BRADY
VIOLATION, THAT IS NOT THE
QUESTION.
>> RIGHT.
>> I WOULD AGREE WITH THAT.
SO IS YOUR ARGUMENT THAT IT
IS NOT MATERIAL OR --
>> YES, AND THAT WAS OUR
ARGUMENT AT THE FOURTH DCA.
>> DIDN'T REALLY ADDRESS
THAT?
>> THEY WERE VERY FOCUSED ON
THE FACT THAT THEY -- THAT IT
WAS OBVIOUS THERE WAS A
WORKERS' COMPENSATION CLAIM.
IT WAS KNOWN, THE SEVERITY OF THE
INJURIES OF THE VICTIM, KNOWN,
A WORKERS' COMPENSATION'S
DOCTOR, MOST BENEFITS WENT TO
THE DOCTOR.
THERE IS NOTHING
IN THE LETTER THAT INDICATES
HE WAS PROFITING OR
BENEFITTING, OR THAT HIS
CLAIM WAS CALLED INTO
QUESTION IN ANY WAY BY
THE CARRIER.
>> THE DEFENSE LAWYER FILED
A MOTION FOR NEW TRIAL SAYING
THIS WOULD CHANGE THE
WHOLE WAY HE WOULD APPROACH
THE CASE.
>> IT COULDN'T POSSIBLY HAVE
DONE THAT.
>> THEY JUST WERE LOOKING
FOR SOMETHING TO -- GET A
NEW TRIAL?
>> EXACTLY.
IF THIS WOULD
HAVE BEEN AVAILABLE IT WOULD
HAVE EASILY BEEN REBUTTED BY
THE FACT THAT THE VICTIM'S
STORY HAD NOT CHANGED FROM
THE NIGHT OF THE CRIME, THE
POLICE REPORT REFLECTS HIS
VERSION OF EVENTS, FOUR
WITNESSES BASICALLY --
EVERYTHING HE SAID ABOUT
WHAT HAPPENED, HE IS A
BOUNCER.
>> DID THE VICTIM SAY THAT
HE SAW THIS DEFENDANT HIT
HIM WITH A BAR STOOL?
>> HE -- SAYS THAT HE DID,
TESTIFY TO THAT, THAT HE --
AND SEVERAL OTHER PEOPLE
ALSO SAW THE VICTIM, SAW THE
DEFENDANT WITH THE BAR
STOOL.
>> WAS THE CHARGE SIMPLY
THAT HE WS HIT WITH A BAR
STOOL THAT --
DEADLY WEAPON OR -- SERIOUS
BODILY JURY?
>> I BELIEVE CHARGED WITH
BOTH.
>> SO THE QUESTION ASKED --
KNOWLEDGE OF THE WORKERS'
COMPENSATION, WAS THAT
THE DOCTOR DEPOSED OR
STATEMENT TAKEN --
>> I DON'T BELIEF THE DOCTOR
WAS DEPOSED.
>> TRIED ON JUST DEADLY
WEAPON OR ALSO --
>> IT WAS BOTH, EVIDENCE
TAKEN OF BOTH, THE EVIDENCE
THAT HE WAS HIT WITH A BAR
STOOL, AND ALSO THE SEVERITY
OF THE VICTIM'S JURIES, AND
WORKERS' COMPENSATION DOCTOR
DID TESTIFY, AND DEFENSE
COUNSEL DID ASK HIM ABOUT
THE WORKERS' COMPENSATION
CLAIM IN CROSS-EXAMINATION.
>> WAS THERE ACTUAL CROSS
EXAMINATION -- DID THE DEFENDANT
TAKE THE STAND?
>> YES, HE DID.
>> AND WAS THERE -- NOT THE
DEFENDANT BUT THE VICTIM.
>> YES, HE DID.
>> AND SO WHAT WAS THE
EXTENT OF THE CROSS
EXAMINATION OF THE VICTIM'S
CONCERN, WORKERS'
COMPENSATION?
>> THERE WASN'T ANY. 
>> ONLY THE WORKERS'
COMPENSATION DOCTOR WAS --
>> THE ONLY THAT ONE WAS
QUESTIONED ABOUT THAT.
I ALSO WANT TO CLARIFY KIND
OF AN --
>> THE DEFENSE DID NOT EVEN
QUESTION HIM ABOUT
THE FACT --
>> NO, HE DID NOT.
>> WHAT THEY THOUGHT WAS --
>> RIGHT, HE DID NOT, YES,
YOU KNOW, REGARDLESS OF
WHETHER THEY KNEW THE AMOUNT
THEY DIDN'T ASK HIM ABOUT
WHEN HE WAS RECEIVING
BENEFITS, WHETHER THERE WERE
MERELY BILLS ASSOCIATED WITH
HIS INJURIES.
>> WAS HE DEPOSED BEFORE
TRIAL?
>> I BELIEVE THE VICTIM WAS
DEPOSED BEFORE TRIAL. 
>> DID THEY TALK ABOUT THE
WORKERS' COMP. CLAIM
DURING THE DEPOSITION?
>> I -- THE DEPOSITION
WASN'T PART OF THE RECORD.
HOWEVER, HE WAS
CROSS-EXAMINED, EXTENSIVELY
AT TRIAL ON -- ON HIS
DEPOSITION, AND ALSO, WHEN
HE -- WHEN DEFENSE COUNSEL
ARGUED THE MOTION FOR NEW
TRIAL HE REFERENCED YES, I
DID ASK ABOUT THE WORKERS'
COMP. CLAIM I BELIEVE HE MUST
HAVE -- WAS REFERRING BACK TO
THE DEPOSITION MAYBE THOUGHT
THAT HE -- QUESTIONED HIM AT
TRIAL ABOUT THAT, THAT, YOU
KNOW, AND HE SEEMED VERY
ADAMANT.
I KNOW I ASKED HIM
ABOUT THAT, BUT I COULDN'T
HAVE ASKED HIM ABOUT THE
AMOUNT.
>> I ASKED YOUR OPPONENT
ABOUT FILING A MOTION FOR
REHEARING IN THE FOURTH
DISTRICT WHEN THEY SET OUT
THE WRONG LEGAL FORMULA.
DID THE STATE CALL THAT TO THE
FOURTH DISTRICT'S ATTENTION?
>> NO, WE DIDN'T.
>> DOESN'T THE STATE HAVE
ALSO AN OBLIGATION TO DO
THAT?
>> IN RETROSPECT, WE -- YOU
KNOW, THAT CERTAINLY WOULD
HAVE BEEN SOMETHING FOR US
TO DO.
>> DID THE STATE ARGUE AT ANY
POINT THAT IN TERMS OF
IMPEACHMENT THAT THIS LETTER
WOULD REALLY BE A TWO-EDGED
SWORD BECAUSE YES, ON THE ONE
HAND IT LET THE JURY KNOW
HE MAY HAVE A STAKE IN THE
OUTCOME, ON THE OTHER HAND,
LETS THE JURY KNOW
HE SUSTAINED $24,000
WORTH OF INJURIES SO FAR?
>> ABSOLUTELY, WE DID MAKE A
POINT OF THAT, AND AS WE
STATED EARLIER, THE AMOUNT
COULD HAVE GIVEN THE JURY
THE INCENTIVE TO GO AHEAD AND
RETURN A VERDICT FOR
AGGRAVATED BATTERY.
IT CHOSE
NOT TO, IT -- KNOWING HIS
INJURIES RESULTED IN THAT MUCH
MONEY YOU KNOW IT COULD HAVE
BEEN VERY DETRIMENTAL TO
HIM, AND ALSO WOULD HAVE
BEEN IMPEACHED. 
>> YOU SAID THE COMP.
DOCTOR TOOK THE STAND.
>> YES. 
>> DIDN'T THE COMP. DOCTOR
TALK ABOUT THE EXTENT OF THE
INJURIES?
>> HE TALKED ABOUT EXTENT OF
THE INJURIES, ALSO SAID HE
RELEASED HIM AFTER THREE
MONTHS. 
>> OF THE 24,000 HOW
MUCH WAS FOR LOST WAGES?
>> ABOUT 3,000. 
>> AND THE REST WAS PAYABLE --
>> BASICALLY TO THE -- MERELY
BILLS. 
>> FOR WHAT TYPE OF
TREATMENT?
>> HE HAD NEUROLOGICAL
PROBLEMS, HEAD INJURY
TREATED WITH A NEUROLOGIST THE
-- NEUROLOGIST FOR A PERIOD
OF THREE MONTHS I GUESS
TAKING MEDICINE.
>> ANY TESTIMONY ABOUT A
PERMANENT/PARTIAL
DISABILITY?
>> I DON'T BELIEVE THEY WENT
INTO ANY WORKERS'
COMPENSATION TYPE
DISCUSSION, IT WAS JUST
BASICALLY "I STILL HAVE
HEADACHES," YOU KNOW, WHAT IT
IS THE RESIDUAL EFFECT OF
THIS INJURY.
>> DID THE DOCTOR TESTIFY FOR
HOW LONG HE TREATED THE
VICTIM?
>> YES, FOR -- HE SAID --
>> WHAT WAS THE PERIOD
AGAIN?
>> I BELIEVE IT WAS ABOUT
THREE MONTHS. 
>> HE GAVE THE DATES WHEN HE
STARTED TREATING HIM AND THE
DATES WHEN HE COMPLETED,
ABOUT THREE MONTHS, JANUARY
TO MARCH.
>> ARE THERE ANY OTHER
QUESTIONS FROM THIS COURT
ON THIS ISSUE?
>> IT SEEMS PRETTY QUIET,
DOESN'T IT.
>> IT'S BEEN A LONG MORNING.
>> THANK YOU.
>> REBUTTAL.
>> THANK YOU, YOUR HONOR. 
>> COULD YOU JUST ADDRESS --
I'M CONCERNED ABOUT THIS
LAST --THE QUESTIONS ABOUT
THE TWO-EDGED SWORD, WHERE
WOULDN'T IT HAVE HIGHLIGHTED
THE AGGRAVATED NATURE OF THE
INJURIES AND SINCE MOST OF
THE MONEY WENT TO THE DOCTOR
FOR $3,000 LOST WAGES,
WOULDN'T THAT JUST PLAY INTO
THE AGGRAVATED NATURE OF THE
INJURY?
>> NO, YOUR HONOR.
THE SERIOUS
BODILY INJURY WAS A FEATURE
OF THE PROSECUTION'S CASE
ALREADY HEARD BY THE INJURY,
IT HAD BEEN TESTIFIED TO BY
THE NEUROLOGIST AND BY
THE VICTIM STRESSED BY TH
PROSECUTOR IN CLOSING
ARGUMENT.
>> OF $24,000 ONLY $3,000 FOR
LOST WAGES, THE REST WENT TO
PAY THE DOCTOR.
HOW IS HE
GETTING MUCH OF A FINANCIAL
BENEFIT OUT OF IT?
>> THAT GOES INTO --THAT IS A
REALLY A JURY DETERMINATION
HOW SIGNIFICANT THE
FINANCIAL BENEFIT IS.
>> -- I GUESS, NOW, SINCE WE
ARE LOOKING AT IT UNDER
BRADY, NOBODY IS SAYING THAT
YOU COULDN'T HAVE PUT IT IN,
NO ONE IS SAYING THAT THE
DEFENSE SHOULDN'T HAVE HAD
IT, BUT WHAT WE'VE GOT TO
LOOK AT, JUSTICE CANTERO
SAYING DOES IT UNDERMINE OUR
CONFIDENCE IN THE OUTCOME,
AND MY CONCERN IS THAT IT
IS A TWO-EDGED SWORD.
>> I ALSO POINT OUT THAT THE
LETTER FROM THE HARTFORD
SAYS THE CLAIM IS STILL OPEN
AND WE CONTINUE TO PAY
BENEFITS.
SO WE DON'T -- WE
REALLY DON'T KNOW THE FINAL
DOLLAR AMOUNT, IF THERE WAS
ONE.
AND -- THE DEGREE OF -- HOW
SUBSTANTIAL ARE
BENEFITS IS A QUESTION OF
HOW IS THE JURY GOING TO
TREAT THIS AS A FINANCIAL
INCENTIVE THAT THEY DIDN'T
KNOW ABOUT THAT THIS STAR
WITNESS HAD A EXTREMELY
CLOSE CASE?
HOW I THINK --
>> CRIMINAL CONVICTION
RELATED TO THE -- THE
FINANCIAL INCENTIVE ON THE
WORKER'S COMP. PLAN,
WORKER'S COMP. IS A NO-FAULT
SYSTEM.
>> BECAUSE THE -- UNDER
CHAPTER 440 AS WELL AS I
WOULD THINK COMMON SENSE
THIS BOUNCER KNOWS HE IS NOT
ENTITLED TO THESE BENEFITS.
IF A TORTFEASOR -- UNDER 440.09
SUB 3 IF HE IS THE AGGRESSOR IN
THIS FIGHT, AND THE FOURTH
DISTRICT REFERRED TO THIS, IF HE IS
AGGRESSOR IN THIS FIGHT
WHICH IS THE DEFENSE IN THIS
CASE, HE IS NOT ENTITLED TO
ANY OF THESE BENEFITS.
>> SO IS THE DEFENSE TO YOUR
CLIENT'S RESPONSIBILITY IN
THE -- SELF-DEFENSE?
AND, IF SO, DID HE ADMIT TO
HITTING HIM BUT NOT WITH A BAR
STOOL.
>> MY CLIENT'S DEFENSE WAS
DEFENSE OF ANOTHER, WHICH WAS
DEFENSE OF MR. STEWART, THE
CODEFENDANT.
THAT HE CAME TO
MR. STEWART'S RESCUE WHOM
THE BAR BOUNCER ATTACKED.
>> AND THAT HE HIT THE
VICTIM IN THIS CASE WITH HIS
HAND?
>> NO; THAT HE TRIED TO
RELEASE THE BOUNCER FROM
CAUSING SERIOUS PHYSICAL
DAMAGE TO MR. STEWART.
THE BAR BOUNCER IS A HUGE MAN
AND PLAYED IN MARTIAL ARTS.
>> HOW DID HE EXPLAIN THE
INJURIES TO THE VICTIM?
>> HE SAID THAT DIDN'T OCCUR
AS A RESULT, THAT THE BAR
STOOL ALLEGATIONS WERE FALSE.
THE JURY BELIEVED THAT, AND
IN TERMS OF HOW THESE INJURIES
OCCURRED WE DON'T KNOW IF
THE INJURIES WERE
LEGITIMATE, IF THERE IS
INSURANCE FRAUD HOW MUCH IS
ATTRIBUTABLE TO HIS DRUG
USE.
>> WHAT IS YOUR POSITION
ABOUT WHETHER DEFENSE COUNSEL
KNEW THAT THERE WAS A
WORKERS' COMPENSATION'S
CLAIM?
>> HE KNEW WHEN HE DEPOSED
THE BOUNCER. 
>> SO THE RECORD IS --BUT WE
DON'T HAVE THAT DEPOSITION.
>> CORRECT.
BUT IT IS
UNCONTESTED, UNDISPUTED THAT
DEFENSE COUNSEL EARLY IN
THE CASE WAS AWARE THAT THE
CLAIM WAS PENDING.
AND THAT WAS IN MAY OF 2005.
>> BUT WE DON'T HAVE ANY
FURTHER DETAILS ABOUT WHAT
QUESTIONS WERE ASKED AT THE
DEPOSITION.
>> THAT IS CORRECT, NEITHER
MOVED THAT DEPOSITION INTO
THE RECORD.
THE FOCUS WAS
MATERIALITY IN THE MOTION
FOR NEW TRIAL, NOT WHETHER
A DUE DILIGENCE ISSUE.
>> THANK YOU VERY MUCH.
>> THANK YOU VERY MUCH.
>> COURT WILL STAND IN RECESS UNTIL
TOMORROW MORNING.
>> ALL RISE.