Gary Massey v. Calvin F. David

SC07-776

HEAR YE, HEAR YE, HEAR YE.
THE SUPREME COURT OF FLORIDA IS
NOW IN SESSION L. WHO HAVE
CAUSE TO PLEA, DRAW NEAR, GIVE
ATTENTION, AND YOU SHALL BE
HEARD.
GOD SAVE THESE UNITED STATES,
THE GREAT STATE OF FLORIDA, AND
THIS HONORABLE COURT.
>> GOOD MORNING.
GOOD MORNING.
>> LADIES AND GENTLEMEN, THE
FLORIDA SUPREME COURT.
PLEASE BE SEATED.
>> GOOD MORNING, FRIENDS, AND
WELCOME TO THE FLORIDA SUPREME
COURT.
AND THE ORAL ARGUMENT CALENDAR
FOR THURSDAY, NOVEMBER 8th,
2007.
INITIALLY, LET US TAKE THE
OPPORTUNITY TO WELCOME THE
CLASS OF OUR FORMER COLLEAGUE
JUSTICE OVERTON.
HIS CLASS IN THE UNIVERSITY OF
FLORIDA IS HERE THIS MORNING
VISITING, AND WE'RE GLAD YOU'RE
HERE.
WELCOME TO THE COURT.
MR.^LITTLE, READY TO PROCEED?
FIRST CASE, MASSEY v. CALVIN
DAVID.
>> MAY THE PLEASE THE COURT I'M
JOSEPH LITTAL AND I REPRESENT
MR.^MASSEY IN THIS CASE.
MR.^MASSEY REQUESTED RELIEF
FROM THIS COURT.
NUMBER ONE, TO HOLD STATUTE
510712 IS NOT UNCONSTITUTIONAL.

TO VACATE THE COST JUDGMENT
AGAINST MR.^MASSEY AND REMAND
TO ENTER PROPER JUDGEMENTS AND
TO DIRECT THE LOWER {CORTS}
COURTS TO ENTER JUDGMENT ON
MR.^MASSEY FOR THIS PHASE 1
VERDICT FOR NOT LESS THAN
NOMINAL DAMAGES AND TO INCLUDE
HIS COST OF OBTAINING THE
RELIEF.
>> WHY SHOULD WE TREAT ANYTHING
OTHER THAN THE CONSTITUTIONAL
ISSUE THAT YOU HAVE PRESENTED
TO US?
>> WELL, YOUR HONOR, THE WHOLE
CASE IS BEFORE THIS COURT, AND
THIS COURT IS OBLIGED UNDER ITS
OWN RULINGS TO DO JUSTICE IN
MATTERS THAT ARE BEFORE IT.
AND THERE IS A VERY JUST MATTER
BEFORE YOU.
I UNDERSTAND THAT THERE ARE IN
SOME CASES THE COURT TAKES
OTHER MATTERS THAN THE ONE
THAT'S THE CONSTITUTIONAL
ISSUE, AND SOMETIMES IT
DOESN'T.
BUT I THINK THERE A VERY STRONG
ARGUMENT IN THIS CASE THAT THE
COURT SHOULD CONSIDER THE WHOLE
CASE BECAUSE THE WHOLE CASE IS
BEFORE YOU AT THIS TIME.
EVERY ISSUE, BY THE WAY --
>> TELL US HOW THE
CONSTITUTIONAL ISSUE WAS
PRESENTED AT THE TRIAL COURT
LEVEL.
>>, I I'M -- --
>> TELL US HOW THE
CONSTITUTIONAL ISSUE WAS
PRESENTED AT THE TRIAL COURT
LEVEL.
>> YOUR HONOR,.
>> WITHIN THE FORM OF A MOTION?

AN ORAL OBJECTION, OR HOW WAS
IT PRESENTED.
>> IT WAS IN THE FORM OF BOTH
WRITTEN AND ORAL OBJECTIONS,
BUT IT WAS IN THIS FASHION,
YOUR HONOR, THE ONLY DECISION
OF THE STATE AT THAT TIME WAS
THE COURT CASE FROM THE SECOND
DISTRICT, I THINK.
AND THE THE DEFENDANT FILED ITS
CAUSE MOTION AND MR.^MASSEY
IMMEDIATELY OBJECTED BUT OF
COURSE TOLD THE COURT THAT
YOU'VE GOT TO FOLLOW COURT.
THE COURT BELIEVE THAT THE
COURT IS UNCONSTITUTIONAL AND
THAT YOU SHOULD IN FACT ENTER
THAT IN YOUR ORDER THAT YOU'RE
OBLIGED TO --
>> SO THERE WAS BOTH A WRITTEN
AND AN ORAL CHALLENGE TO THE
CONSTITUTIONALITY?
>> YES, SIR.
>> OF THE --
>> THERE WAS, YOUR HONOR, BUT
ALSO A CONCESSION THAT THE
COURT WAS BOUND TO FOLLOW.
>> I UNDERSTAND.
CERTAINLY IT IS PROPERLY RAISED
IN THE TRIAL COURT.
>> FROM THE VERY BEGINNING.
>> OKAY.
>> THE OBJECTION WAS TO THE
{MOEGDS} FOR COSTS.
ARGUING THAT WE HADN'T COMPLIED
WITH STATUTE BUT HOLDING THAT
RECORD HELD THE STATUTE
UNCONSTITUTIONAL.
>> THAT'S CORRECT, YOUR HONOR.

>> WOULD YOU PLEASE THEN GO
DIRECTLY TO THE ISSUE AND WHAT
YOUR VIEWS ARE WITH REGARD TO
WHERE THE AUTHORITY FOR THE
TAXATION OF EXPERT WITNESS
COSTS ARE FOUND IN THE
STATUTORY SCHEME.
AND WHY THOSE ARE NOT CONTAINED
IN CHAPTER 90 AND THAT CHAPTER
57 DEALS WITH PROCEDURE ON HOW
THOSE ARE THEN PRESENTED.
>> WELL, YOUR HONOR, I DISAGREE
WITH YOUR LAST STATEMENT.
>> WELL, I UNDERSTAND, BUT
WHERE DO YOU FIND THE --
>> WELL, FIRST OF ALL, MAY I --
LET'S ADDRESS IT THIS WAY, IF I
MAY.
AS YOU KNOW, FLORIDA FOLLOWS
THE AMERICAN RULE, WHICH IS
THAT EACH PARTY CARRIES THEIR
OWN COST AND FEES UNLESS THERE
IS A BASIS IN LAW TO SHIFT IT.

>> RIGHT, AND THAT'S WHY I'M
ASKING THERE'S -- DOES NOT
CHAPTER 90 SET FORTH THAT
EXPERT WITNESS COSTS FOR THE
CHARGES FOR AN EXPERT WITNESS?

>> YES.
>> MAYBE TAXABLE AND THAT'S IN
CHAPTER 90 --
>> THAT'S IN CHAPTER 90 STATES
THAT THE EXPERT WITNESS FEES
MAY BE TAXABLE IF THE WITNESS
SHALL HAVE TESTIFIED.
>> AND --
>> NOW, THAT'S THE LIMITATION
ON THE ENTITLEMENT TO RECOVER.

>> ARE YOU TALKING ABOUT 92 --
>> 92.231, YES, SIR.
570712 IS ALSO A STATUTE, YOUR
HONOR, AND IT TELLS US, I'LL
READ IT TO YOU EXPRESSLY,
EXPERT FEES MAY NOT BE AWARDED
AS TAXABLE COST.
THAT'S THE LEGISLATURE
SPEAKING.
IT'S AMENDING 92.231.
>> SO THAT'S --
>> MAY NOT BE, MAY NOT BE
AWARDED.
IT'S A VERY EXPRESS.
AND UNLESS IS THAT THE
DESIGNATED REPORTS SHALL BE
FILED AT LEAST FIVE DAYS PRIOR
TO THE DEPOSITIONS OF THE
EXPERT OR AT LEAST 20 DAYS
PRIOR TO THE DISCOVERY.
>> SO THEN THAT'S NOT THE --
THAT IN NO WAY STATES THAT THEY
ARE RECOVERABLE.
IT SAYS THEY MAY NOT BE.
>> MAY NOT BE RECOVERABLE.
>> SO THE ONLY PLACE WE FIND IT
IN THE FLORIDA STATUTES IS IN
THE CHAPTER 92, WHICH
AUTHORIZES AN AWARD AT ALL, IS
THAT CORRECT?
>> TO MY KNOWLEDGE, THAT IS
CORRECT.
>> I JUST WANT TO MAKE SURE.
WE -- OR AT LEAST I UNDERSTAND
THE ONLY -- THE ISSUE ON THE
CONSTITUTIONALITY IS WHETHER
THE PROVISIONS THAT TALK ABOUT
A REPORT BEING FILED AT LEAST
FIVE DAYS PRIOR, WHETHER THOSE
ARE PROCEDURAL OR SUBSTANTIVE.

>> THAT'S CORRECT, YOUR HONOR.

>> AND IT IS YOUR POSITION THAT
SOMETHING THAT PROVIDES THAT A
REPORT HAS TO BE FILED A
CERTAIN NUMBER OF DAYS BEFORE
IS SUBSTANTIVE?
?
IT QUALIFIES OR MODFIFES WHICH
TAX MAY BE TAXIBLE.
>> NO, I'M ASKING YOU THAT --
WHERE IS A TIME LIMIT?
ISN'T THAT THE VERY ESSENCE OF
{PRERJS}?
I MEAN, IF WE GO THROUGH --
PROCEDURE.
I MEAN, IF WE GO THROUGH THE
ENTIRE RULES OF PROCEDURE,
ISN'T THAT EXACTLY THE KIND OF
THING THAT PROCEDURAL RULES IN
THIS STATE GOVERNING COURT
PROCEEDINGS COVER?
>> YOUR HONOR --
>> TIMING, AND SO FORTH.
>> IF I MAY RESPOND, THIS DOES
NOT GOVERN COURT PROCEEDINGS.
THERE'S NOTHING -- THERE'S
NOTHING IN THIS STATUTE THAT
SAYS HOW, WHEN, WHERE, WHOM,
UNDER WHAT CIRCUMSTANCES, AN
EXPERT TESTIMONY MAY BE
OBTAINED.
THERE'S NOTHING IN THIS STATUTE
THAT SAYS HOW, WHEN, WHERE,
UNDER EXPERT, -- UNDER WHAT
CONDITIONS AND/OR WHETHER
EXPERT TESTIMONY MAY BE GIVEN
IN COURT T. HAS NOTHING TO DO.

THE ONLY THING IT DESCRIBES IS
WHICH EXPERT TESTIMONY MAY BE
TAXABLE.
THAT'S ALL.
AND THAT IS SUBSTANTIVE.
THAT DEFINES WHICH ONE.
JUSTICE 92.21 SAYS EXPERT FEES
MAY BE COLLECTED IF THE EXPERT
SHALL HAVE TO TESTIFY.
THAT'S PROCEDURAL AS WELL.
>> AREANT THERE REALLY TWO
ASPECTS OF THE STATUTE HERE,
THE WAY I SEE IT, ONE IS, THE
ASPECT THAT PLACES CONDITIONS
ON WHEN EXPERT WITNESS COSTS
CAN BE RECOVERED, THAT IS, ONLY
WHEN THE EXPERT PROVIDES A
REPORT AND THE OTHER ASPECT AS
I SEE IT IS THE TIMING OF WHEN
THAT REPORT SHOULD BE
DELIVERED.
AND THERE MAY BE PARTS THAT ARE
SUBSTANTIVET LIKE YOU SAY AND
THERE MAY BE PARTS THAT ARE
PROCEDURAL BUT IT SEEMS TO ME
THOSE ARE TWO DISTINCT PARTS
TATHAT STATUTE.
>> YOUR HONOR, I DON'T SEE IT
THAT WAY.
I SEE ENTIRELY AS A DESCRIPTION
OF WHICH TAX -- WHICH EXPERT
FEES CAN BE TAXED.
IT'S JUST AS IF THE --
>> WELL, WOULD YOU -- DO YOU
NEED, WITH THE LEGISLATURE
NECESSARILY HAVE TO PUT IN
THOSE TIME RESTRICTIONS?
COULD IT HAVE JUST SAID NO
EXPERT SHALL RECOVER COSTS
UNLESS THE EXPERT PROVIDES A
REPORT TO THE OPPOSING PARTY?
PERIOD.
>> IT CERTAINLY COULD'VE DONE
THAT.
YOUR HONOR, AND.
>> AND I THINK YOU WOULD'VE HAD
A PRETTY GOOD ARGUMENT, AS FAR
AS I'M CONCERNED, THAT THAT'S
SUBSTANTIVE.
>> WELL, IF IN FACT THAT THAT'S
THE WAY THE COURT WOULD READ
IT, THEN YOU WOULD STRIKE THE
TIME LIMITS AND THE SAME
RESULTS OCCURS, THERE WAS IN
FACT NO DELIVER OF ANY REPORT
AT ANY TIME IN THIS CASE.
BUT, YOUR HONOR, I THINK YOU'RE
WORKING TOO HARD ON THIS.
WE'RE SIMPLY, WE'RE SIMPLY
DEFINING WHICH TAX OR COSTABLE
-- WHICH COSTS ARE TAXABLE.
>> WELL, WE'RE NOT WORKING TOO
HARD ON IT T. THE ISSUE,
FRANKLY, IF I HAD TO GET INTO
THIS CASE AND YOU REPRESENT THE
CLIENT NOT THE -- YOU'RE
INYOU'RE THE CLIENT.
>> THE PLAINTIFF'S LAWYER.
>> I MEAN, WHAT HAPPENED IN
THIS PARTICULAR CASE IN THE
UNDERLYING ISSUE TO ME IS
THERE'S A LOT OF INJUSTICE HERE
ON BEHALF OF YOUR CLIENT BUT
THAT'S NOT WHAT WE'RE HERE SO
WE'RE LOOKING AT ONE LITTLE
PIECE OF A PUZZLE, AND MY
PROBLEM ABOUT IT IS THAT YOU
KNOW, SO WE'RE -- THIS ISN'T
VERY GLAMOROUS WHEN THE COURT
HAS TO LOOK AT WHAT'S
SUBSTANTIVE AND WHAT'S
PROCEDURAL BUT IN 2002, THE
FOURTH DISTRICT DECLARES THAT
THIS IS PROCEDURAL, SAYS ITS
UNCONSTITUTIONAL.
WE NOW GO, NOBODY GOES TO THE
RULES OF THE CIVIL PROCEDURE
COMMITTEE TO SAY LET'S ENACT A
RULE OF PROCEDURE.
AND EVERYONE'S ON NOTICE OF
THIS, SO I'M TRYING TO SEE FOR
THIS SITUATION WHEN TO ME IT'S
SO CLASSICALLY PROCEDURAL, YOU
STILL HAVEN'T GIVEN ME AN
ARGUMENT AS TO WHY IT WOULD BE
CONSIDERED SUBSTANTIVE WITHOUT
REALLY CHANGING OUR LAW ON THE
DISTINCTION BETWEEN SUBSTANCE
AND PROCEDURE.
SO GIVE US YOUR BEST SHOT.
>> YOUR HONOR, IF WE HAVE A LAW
THAT SAYS IF WE DO SOMETHING ON
TUESDAY, ITS TAXABLE.
IF YOU DO IT IT ON A WEDNESDAY,
IT'S NOT.
WOULD THAT BE SUBSTANTIVE OR
PROCEDURE {SNL}?
I WOULD SAY SUBSTANTIVE T.
TELLS YOU TDEFINES WHICH ITEMS
ARE TAXABLE AND THIS IS EXACTLY
LIKE THAT.
IT'S JUST DEFINING WHICH FINES
ARE TAXABLE.
>> SO COULD THE, COULD THE
LEGISLATURE PASS A LAW
GOVERNING SUMMARY JUDGMENT NOT
ONLY CHANGING WHAT THE STANDARD
IS FOR SUMMARY JUDGMENT BUT
SAYING BECAUSE ONE OF THE
THINGS THAT IS IN THE RULE IS
WHEN AFFIDAVITS OR SUPPORTING
DOCUMENTS HAVE TO BE FILED --
>> ABSOLUTELY NOT BECAUSE THAT
IN FACT HAS TO DO WITH HOW --
WHAT GOES IN IN COURT.
THIS HAS NOTHING TO DO WITH
WHAT GOES ON IN COURT.
IT DOESN'T AFFECT IN ONE IOTA
WHETHER A, AN EXPERT WITNESS
COULD TESTIFY AND WHAT HE COULD
TESTIFY.
TO.
AND WHEN HE CAN TESTIFY.
NOT IN THE LEAST.
THE ONLY THING IT AFFECTS IS
WHETHER OR NOT THERE'S GOING TO
BE TAXATION OF THE COSTS.
>> WHY SHOULDN'T WE VIEW THIS
SIMPLY AS HOOPS THAT YOU HAVE
TO JUMP THROUGH?
IN ORDER TO GET THESE COSTS
TAXED IN COURT AS POSED TO AS
THE CHIEF -- AS OPPOSED TO AS
THE CHIEF HAS POINTED OUT, THE
OTHER ENTIRELY SEPARATE STATUTE
THAT GRANTS THE SUBSTANTIVE
RIGHT TO THIS COST.
AND NOW, YOU KNOW, HAVING THE
STATUTE COULD ALMOST LITERALLY
SAY IN ORDER TO GET THESE COSTS
YOU, MUST FOLLOW THE FOLLOWING
PROCEDURE.
AND THEN HAVE THESE SAME THINGS
IN IT.
SO IF, IF THE STATUTE HAD THAT
PRELIMINARY PHRASE, IT IS IN
ORDER TO GET THESE COSTS, YOU
HAVE -- IT IS IN ORDER TO GET
THESE COSTS, YOU HAVE TO FOLLOW
THE FOLLOWING PROCEDURE AND IT
DIDN'T ACTUALLY USE THE WORD
PROCEDURE --
>> YOUR HONOR, IF IN FACT THE
THE STATUTE SAID THAT AFTER YOU
GET A JUDGMENT THAT IN ORDER TO
OBTAIN COSTS, YOU THEN MUST
FILE THE ACTION OR FILE YOUR,
YOUR MOTION FOR COSTS WITHIN
THE PARTICULAR PERIOD OF TIME,
THAT WOULD BE PROCEDURAL
BECAUSE THAT TELLS YOU HOW THE
COURT IS RUNNING ITS BUSINESS.

THERE'S NOTHING HERE ABOUT HOW
THE COURT RUNS ITS BUSINESS.
NOTHING AT LYOU SEE.
THE COURT DOESN'T HAVE TO
CONCERN ITSELF WITH IT, AT ALL.

NOBODY CAN COMPLAIN IF SOMEBODY
WANTS TO PUT A WITNESS ON THE
STAND, THERE'S NO COMPLAINT OH,
BUT THEY DIDN'T GIVE US THIS
REPORT.
THERE IS NO {DPLANT}.
>> WELL, HOW DOES THIS CASE
DIFFER FROM THE CASE ORDERING
THE OFFER OF JUDGMENT, SECTION
44 THAT WAS DECLARED
UNCONSTITUTIONAL BECAUSE IT WAS
PROCEDURE RATHER THAN
SUBSTANTIVE.
HOW DOES THIS STATUTE
DIFFERENT?
>> DRAMATICALLY, YOUR HONOR,
BECAUSE IN NEALING v. PULIO, I
THINK THAT'S THE CASE THE COURT
IS REFERRING TO, THE STATUTE
STATED WHEN YOU MUST FILE FOR
AN OFFER OF JUDGMENT IN THE
COURT, YOU SEE.
WHEN YOU MUST IN FACT FILE THE
OFFER OF JUDGMENT, AND IF YOU
DON'T FILE IT WITHIN THE COURT,
WITHIN THE PERIOD OF TIME, THEN
IT WON'T BE HEARD.
WELL, IT'S THE COURT'S BUSINESS
TO DECIDE WHEN A MATTER WILL BE
HEARD BY THE COURT.
IT'S THE LEGISLATURE'S BUSINESS
TO DECIDE WHICH COSTS ARE
TAXABLE.
>> BUT ISN'T THIS A TIMING
STATUTE ALSO?
>> I'M SORRY?
>> ISN'T THIS A TIMING STATUTE
ALSO?
HOW DOES THE TIME HERE DIFFER
--
>> THIS TIME SIMPLY QUALIFIES,
DESCRIBES FOR US WHICH COSTS
ARE TAXABLE.
IT'S A RED COST INSTEAD OF A
BLUE COST.
IT'S ONE IN WHICH A REPORT WAS
FILED INSTEAD OF ONE IN WHICH A
REPORT WAS NOT FILED.
THAT, THAT'S WHAT IT IS, YOU
SEE.
IT DOESN'T SAY ANYTHING AT ALL
ABOUT HOW ARE WE GOING TO DO
THINGS IN THE COURT.
IN THIS SITUATION.
>> HAVE YOU, ONE -- ANOTHER
POSSIBILITY IS, AND I DON'T
KNOW THAT IT'S BEEN
SPECIFICALLY SUGGESTED IS THAT
WE ALL THE TIME ADOPT
PROCEDURES WE ACTUALLY TAKE THE
STATUTE AND WE MAKE IT A RULE
WHETHER WE, WITHOUT EVEN
DECIDING IF IT'S PROCEDURAL OR
SUBSTANTIVE.
HOW, IF WE DECIDED THAT THIS IS
WHATEVER IT IS, IT'S A GOOD
IDEA, AND PUT IT IN IN THIS
CASE, HOW WOULD THAT AFFECT
YOUR {CHRIBT}?
-- CLIENT?
AND THAT'S A QUESTION TO
MR.^DEVAULT TODAY.
>> WELL, YOUR HONOR, I THINK
THAT YOU NEED TO HOLD THAT THE
RULE IN THIS CASE HAS NOT BEEN
COMPLIED WITH AND THEREFORE THE
COST JUDGMENT OUGHT TO BE
OVERTURNED.
>> BUT IF WE FOUND IT
PROCEDURAL BUT LISTEN EVERYONE
WAS ON NOTICE THAT WAS THERE
AND MADE IT AND SAID WE THINK
IT'S PROCEDURAL BUT WE'RE
DOPTING IT AND IT GOVERNS,
WOULDN'T THAT GET -- TO THE
SAME --
>> IF THE COURT ENTERS AN ORDER
VACATING THE JUDGMENT.
YOUR HONOR, THAT WOULD GET US
WHERE WE WANT TO GO.
>> YOU WOULD ONLY AGREE WITH
THAT IF WE APPLIED IT TO YOUR
CASE?
>> YES, SIR, IF YOU APPLIED IT
TO YOUR CASE.
>> BUT I DON'T SEE HOW WE CAN
DETERMINE A STATUTE
UNCONSTITUTIONAL AND
IMMEDIATELY CREATE A RULE THAT
APPLIES RETROACTIVELY TO YOUR
CASE.
>> WELL I, I'M NOT SUGGESTING
THAT YOU DO THAT.
I DON'T THINK THIS STATUTE IS
UNCONSTITUTIONAL.
I THINK THIS IS A
CONSTITUTIONAL STATUTE.
IT'S SIMPLY -- LET ME, LET ME
ASK YOU ABOUT A, YOUR HONOR, IS
A STATUTE OF LIMITATIONS
PROCEDURAL?
YOU'RE GOING TO HAVE TO REVERSE
--
>> WE GET TO ASK THE QUESTIONS.

>> I UNDERSTAND.
[LAUGHTER]
I UNDERSTAND, JUSTICE.
>> LET ME ASK YOU TWO THINGS
ABOUT, FIRST OF ALL, IN PASSING
THIS LEGISLATION, THE
LEGISLATURE AT LEAST TWICE
COMMENTED ON THE, THE
POSSIBILITY THAT THE COURTS
WOULD FIND THIS TO BE
PROCEDURAL.
>> YOUR HONOR, I CAN THAT --
>> WHAT -- I'M MORE CONCERNED,
THOUGH ABOUT THE LAST SENTENCE
OF THE STATUTE WHICH SAYS YOU
HAVE TALKED ABOUT THERE'S NO
TIME ISSUES IN HERE.
THERE ARE EXPRESSLY TIME ISSUES
IN HERE.
IT SAYS SUCH REPORT SHALL BE
FILED AT LEAST FIVE DAYS PRIOR
TO THE DEPOSITION OF THE
EXPERT.
DEPOSITIONS TAKE PLACE IN COURT
PROCEEDINGS.
OKAY?
THAT'S THE COURT PROCEEDING FOR
A DEPOSITION.
OR AT LEAST 20 DAYS PRIOR TO
DISCOVERY CUT-OFF.
DISCOVERY HAPPENS IN COURT
CASES.
OKAY?
NOT OUTSIDE THE CONTEXT OF
COURT.
>> YOU DON'T DISAGREE WITH
THAT, DO YOU?
>> NO, BUT YOU SAID A MINUTE
AGO THAT THIS HAS NOTHING TO DO
WITH COURT PROCEDURE.
THAT THIS IS A SEPARATE
SUBSTANTIVE STATUTE HERE.
BUT I'M MORE CONCERNED ABOUT
THE LAST PHRASING IN THAT
SENTENCE.
AND IT SAYS, OR AS OTHERWISE
DETERMINED BY THE COURT.
IT SEEMS TO ME THAT THAT
OTHERWISE DETERMINED BY THE
COURT IN ESSENCE SAYS THAT THE
COURT CAN WAIVE ALL OF THIS,
THE COURT CAN SAY WELL, I THINK
YOU HAVE THAT INFORMATION
SUFFICIENTLY OR, OR WHATEVER.
HASN'T THE LEGISLATURE IN
ESSENCE IN THAT LAST PHRASE
REALLY GIVEN A CART BLANCHE TO
THE COURT TO OTHERWISE
DETERMINE WHAT MAY BE NECESSARY
IN TERMS OF THESE FEELINGS?
>> WELL, YOUR HONOR, --
FILINGS,.
>> WELL, YOUR HONOR, THAT ISSUE
ISN'T BEFORE US.
WE DON'T KNOW WHAT THAT
LANGUAGE APPLIES TO, WHAT THE
ANTECEDENT IS, AT LEAST I
DON'T.
>> WELL, ONE OF OUR OBLIGATIONS
THAT WE HAVE STATED "TIME"
AFTER TIME IS THAT IF HE CAN
AVOID THE CONSTITUTIONAL ISSUE,
THAT WE SHOULD DO SO.
>> YOU SHOULD DO IT.
THAT'S CORRECT.
>> AND SO THAT --
>> AND SO THE ISSUE IS BEFORE
US.
>> AND YOU CERTAINLY SHOULD
AVOID DECLARING THIS, THIS
STATUTE UNCONSTITUTIONAL.
>> SO WHY DOESN'T THAT SENTENCE
THERE REALLY GIVE THE COURTS
REALLY THE LAST SAY IN TO HOW
THIS SHOULD WORK?
>> INCLUDING WAIVING ITS
PROVISIONS.
>> I DON'T THINK THE COURT
COULD DO THAT, YOUR HONOR.
I THINK THE, THE, THE THING
BEFORE THAT HAS TO DO WITH THE
DISCOVERY CUT-OFF.
AND THE COURT COULD WAIVE THE
DISCOVERY CUT-OFF OR IMPOSE A
NEW ONE.
AGAIN, THAT ISSUE IS, IS NOT
BEFORE US.
IT HASN'T BEEN BREACHED AND I
THINK WE COULD LIMIT IT THAT
WAY.
IT WOULD AVOID YOUR PROBLEM.
THE QUESTION THAT YOU HAVE
RAISED L. MEET -- MAY I JUST
ADDRESS THE OTHER ONE.
MY TIME IS ALL BEING USED UP
HERE.
LET ME READ TO YOU THE STATUTE
THAT THIS PROVISION CAME FROM,
99, 2009 YOU SPOKE ABOUT THE
FACT THET THE LEGISLATURE WAS
CONCERN THAD SOME OF THE
PROVISIONS MIGHT BE DEEMED TO
BE {PRERBLG} PROCEDURAL.
LET ME READ TO YOU FROM SECTION
1 OF THIS STATUTE.
IT'S A LONG STATUTE.
AND THIS IS A PROVISION 4150
AND ANY CIVIL ACTION WHICH THIS
COURT DETERMINES IS LIKELY TO
EXCEED FIVE DAYS, THE COURT
SHALL INSTRUCT THAT THE JURORS
MAY TAKE NOTES.
>> THAT'S NOT WHAT'S BEFORE US.

>> THAT'S NOT WHAT'S BEFORE US.

>> PLEASE STAY WITH THE
PROVISION THAT'S BEFORE THE
COURT.
>> THAT'S TRUE.
WELL, YOUR HONOR, I WANTED TO
-- JUSTICE ANSTEAD ASKED ME THE
QUESTION AND I WANTED TO TELL
HIM.
>> WELL, THAT'S A FAIR --
>> YES.
I'D LIKE TO RESERVE MY LAST
MINUTE.
THANK YOU.
>> MR.^DEVAULT?
>> MAY IT PLEASE THE COURT.
JOHN DEVAULT ON BEHALF OF THE
APLY CALVIN DAVID.
>> MR.^DAVID LIKE WITH MANY
STATUTES THERE ARE SUBSTANTIVE
ASPECTS AND PROCEDURAL ASPECTS.

THAT HAPPENS WITH A LOT OF
STATUTES.
AND WHY ISN'T THIS STATUTE THE
SAME IN WHICH THE FIRST
SENTENCE {SAR} LOT MORE
SUBSTANTIVE THAN THE SECOND
SENTENCE IN THAT IT PLACES THE
CONDITION ON THE EXERCISE OF
THE RIGHT TO OBTAIN, TO TAX
THAT COST OF THE EXPERT
WITNESS?
AND HAVEN'T WE ALSO HELD THAT
WE'RE -- WHERE A STATUTE HAS
SUBSTANTIVE ASPECTS AND SOME
PROCEDURAL ASPECTS THAT AS WELL
AS AS WELL IF THOSE PROCEDURAL
ASPECTS ARE SO INTERTWINED WITH
THE SUBSTANTIVE ASPECTS THEN,
THEN REALLY IT'S NOT I GUESS
PROCEDURAL ENOUGH TO RENDTER
UNCONSTITUTIONAL IT.
?
>> I DON'T KNOW HOW YOU MAKE A
JUDGMENT LIKE THAT WITH A
STATUTE LIKE THIS BUT THE
REASON THE COURT SAID IT IS
SUBSTANTIVE AND THE REASON WE
THINK YOU SHOULD FOLLOW THAT
ISSUE IS BECAUSE THE STATUTE
BEFORE THE COURT DOES NOT GIVE
A RIGHT THE RIGHT IS CREATED IN
92.
IT'S BEEN AROUND SINCE 1949 IN
ORDER TO GET FEES FOR EXPERT
WITNESSES.
>> WELL, LET'S TAKE -- LET'S
JUST, ASSUME FOR THE MOMENT
THAT THE SECOND SENTENCE ISN'T
IN THERE.
ARE YOU SAYING THAT SIMPLY
BECAUSE A RIGHT IS CREATED IN
STATUTE A, IF IT IS LIMITED IN
STATUTE B, THEN BY DEFINITION,
THAT LIMITATION IS PROCEDURE
{SNL}.
>> NOT IN EVERY CASE, YOUR
HONOR, BUT IN THIS CASE WHERE
IT IS RESTRICTING THE MANNER
AND METHOD BY WHICH ATTORNEYS'
FEES CAN BE OBTAINED.
>>.
AGAIN, LET'S TALK ABOUT THE
FIRST SENTENCE ONLY T. DOESN'T
SEEM TO RESTRICT THE MANNER AT
L. WHAT IT IS SAYING IS YOU
DON'T GET COSTS AT ALL UNLESS
YOU PROVIDE A REPORT.
THAT'S THE FIRST SENTENCE.
>> THAT'S THE FIRST SENTENCE,
YOUR HONOR.
AND CONTRAST THAT WITH THE RULE
PROMULGATED BY YOUR HONORS IN
2006 IN THE UNIFORM GUIDELINES
WHEN THIS COURT IN LIGHT OF THE
COURT DECISION SAID REASONABLE
FEE FOR DEPOSITIONESS AND/OR
TRIAL TESTIMONY FOR EXPERTS AND
THE COST OF PREPPATION FOR --
PREPARATION OF ANY COURT
ORDERED RECORD {ROFRMENT} WE
BELIEVE THIS IS {PRERBLG}AL.
OBVIOUSLY THIS COURT DID WHEN
IT ADOPTED IT AND THEREFORE IT
SEEMS TO ME THAT THE PROVISION
THAT RESTRICTS CONTRARY TO THE
RULE PROMULGATED BY THIS COURT
FEES IN SECTION 1 IS LIKEWISE
PROCEDURE.
>> YOU KNOW WHAT, YOU HAVE
BROUGHT UP SOMETHING, AND I WAS
THINKING ABOUT THE UNIFORM
GUIDELINES.
WE DON'T REALLY PERHAPS WE'VE
PUT MAYBE WE HAVE SUBSTANCE IN
THE, IN THOSE GUIDELINES.
BECAUSE IF YOU CAN SEE, WHICH I
THINK YOU DO, OR DO YOU THAT
THE RIGHT TO TAX EXPERT WITNESS
FEES, IS THAT SUBSTANTIVE OR
PROCEDURE {SNL}.
>> THE RIGHT TO TAX EXPERT
WITNESSES FEES IS A SUBSTANTIVE
AS A MATTER OF STATUTE 92.
>> ALL RIGHT.
SO IT'S CREATE.
IF THEY WITHDREW IT, WOULD THE
COURT HAVE IN TERMS OF WHAT
THEY ARE GOING TO RECOMMEND THE
TAX -- WOULDN'T THEY ALSO HAVE
THE RIGHT TO SAY BUT WE'RE
GOING TO ALLOW EXPERT WITNESS
FEES TO BE TAXED?
IT'S NOT LIKE ATTORNEYS' FEES.

I MEAN WE ALL THE TIME SAY THIS
DEPOSITION COSTS TAX.
THIS ONE ISN'T.
>> I BELIEVE IT IS, -- IT
WOULD, YOUR HONOR.
>> SO REALLY THIS WHOLE THING
IS KIND OF LIKE THE OFFER --
IT'S SOMEWHAT MUDDY TO ME.
>> --- THERE IS NO BRIGHT LINE,
AND AS A RESULT OF THAT, I
WOULD GO BACK TO THE STATEMENT
THAT JUSTICE ANSTEAD MADE A FEW
MINUTES AGO, THIS COURT SHOULD
AVOID CONSTITUTIONAL ISSUES IF
AT ALL REQUIRED.
>> BUT WHY CAN'T WE JUST AVOID
IT BY SAYING WHAT THE JUSTICE
CANTERO IS THAT WHILE IT'S A
MIXED BAG AND THERE'S REALLY
NOT ENOUGH PROCEDURE IN THERE
TO MAKE THE WHOLE STATUTE
UNCONSTITUTIONAL, OR SINCE, YOU
KNOW, IT'S PROCEDURE, PROCEDURE
APPLIES, YOU KNOW, AT THE TIME,
EVERYONE'S ON NOTICE THE
STATUTE EXISTS, YOU KNOW, SAY
ITS PROCEDURAL, PASS THE RULE,
AND MAKE IT, YOU KNOW, APPLY TO
THIS CASE.
>> IF YOU DID THAT, YOUR HONOR,
I BELIEVE IT WOULD BE
PROSPECTIVE.
I DON'T BELIEVE THAT AN, THE
ENACTMENT OF A RULE OF
PROCEDURE WOULD APPLY TO THE
INSTANCE OF THIS CASE, BUT AND
THE COURT OBVIOUSLY CAN DO THAT
--
>>.
>> IF WE DON'T -- IF WE SAY
THAT IT'S MIXED SO WE REALLY
DON'T BELIEVE THAT IT IS
PROCEDURAL BUT TO THE EXTENT IT
WAS, WE'RE GOING TO JUST ADOPT
THIS WHOLE THING AS A RULE,
WHICH IS, AS JUSTICE CANTERO
SAYS, WE DO A LOT.
WHICH IS WE JUST --
>> CANTERO.
>> I KNOW, I GOT IT.
I GOT.
>> HE'S HERE AGAIN TODAY.
>> BUT, YOUR HONOR, YOU COULD
ALSO AVOID --
>> MY BRAIN.
>> -- THAT PROBLEM BY LOOKING
AT THE LANGUAGE OF THE FIRST
DISTRICT COURT IN ITS OPINION.

FOR THAT COURT, I SUBMIT, DID
NOT FULFILL THE REQUIREMENTS OF
LETTING THIS COURT HAVE
JURISDICTION UNDER ARTICLE V
SECTION 3 B 1.
THE ARTICLE V SAYS THAT IF THE
DCA DECLARES A STATUTE
UNCONSTITUTIONAL, YOU SHALL
HAVE JURISDICTION.
IN THIS CASE, THE DISTRICT
COURT WAS VERY CAREFUL IN
ADDRESSING THIS ISSUE AND
SUGGESTING THAT NOTHING IN THE
TRIAL COURT CONSIDERED THE
ISSUE AT NO POINT IN THE
HEARING DID THE COURT MENTION
COURT OR SECTION 57 NOR DID THE
COURT MAKE ANY FINDINGS.
>> WELL, WAIT A SECOND.
DID THE FIRST DISTRICT
DECISION, IS, IF YOU'RE IN THE
FIRST DISTRICT NOW S THIS
STATUTE CONSTITUTIONAL OR
UNCONSTITUTIONAL?
>> I THINK IF YOU'RE IN THE
FIRST DISTRICT IN CIRCUIT COURT
WHERE WE WERE, BY VIRTUE OF
COURT, YOU HAVE THE, THE JUDGES
HAVE TO ABIDE BY THE FIRST
DISTRICT.
>> BUT WHAT ABOUT -- BY VIRTUE
OF MASSEY v. -- OR DAVID v.
MASSEY.
>> NO, I DON'T THINK SO, YOUR
HONOR BECAUSE THE COURT
SPECIFICALLY SAID BECAUSE THE
DISTRICT COURT DID NOT RULE ON
THAT ISSUE, WE ARE NOT GOING TO
MAKE AN ANNOUNCEMENT.
>> ALL RIGHT.
AS AN OFFICER OF THE COURT AS
YOU ARE, IF WE'VE GOT A
DECISION OUT OF THE FOURTH
DISTRICT THAT SINCE 2002 HAS
DECLARED THIS STATUTE TO BE
UNCONSTITUTIONAL SO I ASSUME
IT'S NOT BEING FOLLOWED IN THE
FOURTH DISTRICT AND SINCE WE
HAVE AT LEAST DISCRETIONARY
JURISDICTION TO, TO LOOK AT
CASES WHERE A STATUTE HAS BEEN,
HAS BEEN THE CONSTITUTIONALITY
IS INVOLVED, WHY WOULDN'T WE
TAKE THIS CASE TO RESOLVE THIS
ISSUE?
>> WELL, I MEAN, YOU CERTAINLY
COULD, YOUR HONOR.
IT IS WITHIN YOUR DISCRETIONARY
-- WHAT, ALL I'M SAYING, YOUR
HONOR, IS TO AVOID THE
CONSTITUTIONAL ISSUE, IF YOU
LOOK AT THE LANGUAGE OF THE
DECISION, THE COURT DID NOT
MAKE A SPECIFIC RULING.
IT'S VERY SIMILAR TO THE --
>> I JUST CAN'T IMAGINE THIS
COURT ALLOW FIGURE WE THOUGHT
WE DISAGREED OR AGREED,
WHATEVER IT IS, LEAVE A PENDING
APPELLATE DECISION JUST OUT
THERE BECAUSE FOR SOME REASON
THEY NEVER THOUGHT REVIEW.
DO YOU THINK THAT'S A GOOD
JURIS PRUDENTIAL PATTERN FOR
THIS COURT TO FOLLOW?
>> NOT AT ALL, YOUR HONOR, AND
INDEED, I THINK IMPLICITLY,
SINCE THE COURT DECISION,
BEFORE, YOUR HONORS HAVE BEEN
AT LEAST TWO RULE CHANGES, HAVE
BEEN TWO GUIDELINE ISSUES, ALL
ADDRESSING EXPERT WITNESS FEES
AND ALL LOOKING AT THE
PROVISION OF THE LEGISLATURE IN
SAYING IF YOU THINK, YOU KNOW,
WE'RE, WE'RE RIGHT DO,
SOMETHING AND THIS COURT HAS
REFUSED TO --
>> IS THAT -- WAS THAT PART OF
THE RAOUL -- DO WE HAVE
ANYTHING IN THIS RECORD TO KNOW
THAT THE, THE COMMITTEE, THE
RULES OF CIVIL PROCEDURE
COMMITTEE CONSIDERED WHETHER TO
ADOPT THIS AND, DECIDED NOT TO?

>> NOT AT ALL, YOUR HONOR.
ALL I'M SAYING IS YOUR HONOR,
WE KNOW AS A MATTER OF PUBLIC
RECORD THAT WE'VE GONE THROUGH
TWO RULES REVISIONS AS WELL AS
UNIFORM GUIDELINES, AND IF THIS
COURT BELIEVED AS A MATTER OF
PROCEDURE THAT THIS, THAT THIS
PROCEDURE SHOULD BE ADOPTED,
ONE WOULD THINK --
>> WELL, WHAT ONE WOULD THINK
AND I FRANKLY HAVE SOME
PROBLEMS WITH THE RULES
COMMITTEE SINCE THE LEGISLATURE
AT THE VERY LEAST ASKED THAT IF
IT WAS DECLARED
UNCONSTITUTIONAL TO BE
CONSIDERED AS A RULE OF
PROCEDURE THAT NO COMMITTEE OF
THE BAR BROUGHT THIS TO THE
COURT'S INTENTION -- ATTENTION
DURING AS YOU SAID TWO RULES
CYCLES.
WE GET RULES CHANGES EVERY
SINGLE DAY AND {QLOEFD} THAT
THE, YOU KNOW, THES -- I DON'T
FIND THAT -- THIS COURT ISN'T
CHARGED WITH TRYING TO FIGURE
OUT WHAT'S GOING ON IN THE REST
OF THE STATE.
>> AND I AM NOT SUGGESTING THAT
THE COURT HAS NEGLECTED ITS
DUTY IN THAT RESPECT, YOUR
HONOR LI'M SAYING IS THAT IF
THIS WERE A AQUESTION OF SOME
MOMENT, IT COULD'VE BEENDRIESED
--
>> NO, WHAT I'M SAYING IS I'M
CONCERNED AND I -- THIS IS,
SINCE THIS IS PUBLIC
PROCEEDINGS THAT THE RULES
COMMITTEE HAVING THE COURT
DECISION DIDN'T EITHER BRING IT
TO THIS COURT'S ATTENTION
EITHER WAY TO THE RULES
CHANGES.
>> I DON'T KNOW THE ANSWER TO
THAT EITHER WAY, WHETHER THE
{RULEDS} COMMITTEE DID OR DID
NOT.
ALL I'M SUGGESTING IS IT'S NOT
A MATTER THAT THE COURT
NECESSARILY HAS TO CONSIDER IN
ITS JURISDICTION.
>> LET'S GO BACK TO THE
QUESTION THAT JUSTICE AN TEAR
-- CANTERO ASKED YOU, AND I
DON'T KNOW IF YOU REALLY
ANSWERED IT, AND THAT IS, WOULD
YOU AGREE THAT THE FIRST
SENTENCE OF THE STATUTE IS
SUBSTANTIVE?
>> I DON'T THINK YOU CAN DIVIDE
THE STATUTE, YOUR HONOR,
BECAUSE I THINK THE FIRST
SENTENCE IS, ALTHOUGH THERE --
THE SENTENCES ARE DIFFERENT,
IT'S NECESSARILY TAKEN TOGETHER
AS, WITH RESPECT TO THE TIMING
OF WHEN SUCH REPORT SHALL BE
MADE.
>> WELL, THEN LET'S LOOK AT IT
THIS WAY.
THE SUBSTANTIVE RIGHT YOU AGREE
IS IN CHAPTER 92.
>> YES, YOUR HONOR.
>> COULD THE LEGISLATURE HAVE,
WHEN IT PROMULGATED CHAPTER 92,
PUT THE FIRST SENTENCE OF THIS
STATUTE IN THAT PARTICULAR
STATUTE?
THEY GAVE YOU THE RIGHT AND
THEN THEY'RE GOING TO LIMIT THE
RIGHT BY WHETHER OR NOT YOU
FILE A REPORT.
>> I BELIEVE --
>> COULD THAT HAVE BEEN A PART
OF CHAPTER 92.
>> I BELIEVE IT COULD, YOUR
HONOR.
I THINK THAT WOULD BE A -- THE
LEGISLATURE WOULD HAVE MADE A
SUBSTANTIVE EXTENSION OF A
RIGHT CONTRARY TO THE COMMON
LAW --
>> SO IF THEY COULD'VE DONE IT
IN CHAPTER 92, WHY CAN'T THEY
-- WHY COULDN'T THEY HAVE DONE
IT AS AN SUBSTANTIVE EXTENSION
IN ANOTHER CHAPTER?
>> AND THEY COULD'VE CERTAINLY
AMENDED CHAPTER 92 WITH THE
SENTENCE YOU'RE SUGGESTING L.
I'M SAYING IS THEY DIDN'T DO
THAT, YOUR HONOR.
WHAT THEY DID WAS ADOPTED A
STATUTE WHICH WAS, WHICH SET
TIME LIMITS WITHIN WHICH TO DO
SOMETHING AS AN INTEGRAL PART
OF THE RESTRICTION ON THE AWARD
OF ATTORNEYS' FEES, AND THAT
SEEMS TO ME TO TIP THE BALANCE.

BUT I AGREE WITH JUSTICE
PARIENTE IT'S NOT A CLEAR, IT'S
CERTAINLY A MURKY QUESTION.
>> HOW WOULD YOU ANALYZE AND
HOW DOES THE LAST PROVISION
THAT TALKS IN TERMS OF COURT
DISCRETION, COURT INVOLVEMENT
ON OTHER, OTHER TERMS, HOW DOES
THAT, HOW SHOULD THAT PLAY OUT
IN THIS ANALYSIS OR THIS
DISCUSSION?
>> I THINK THAT ADDS TO THE
FACT THAT WHEN YOU LOOK AT IT
AS A WHOLE T, IT'S MORE
PROCEDURAL BECAUSE IT'S GIVING
THE COURT THAT KIND OF
DISCRETION THAT THE COURT
EXERCISED UNDER THE, UNDER THE
GUIDELINES AND THERE'S NO,
THERE'S NO ISSUE HERE THAT ALL
OF THE PRETILE ORDERS THAT WERE
-- PRETRIAL ORDERS THAT WERE
SUBMITTED BY THE TRIAL JUDGE
WERE NOT FULFILLED IN TERMS OF
INFORMATION BY THE EXPERTS.
SO GIVING THE COURT DISCRETION
I THINK IS AN IMPORTANT PART OF
WHY IT IS PROCEDURE.
>> LET ME ASK YOU --
>> ALL OF THE INFORMATION THAT
WOULD BE CONTAINED IN A REPORT
AND THE DISCLOCHERS AND ALL
THOSE, THERE WAS NEVER AN
OBJECTION THAT THAT HAD NOT
BEEN GIVEN?
>> NEVER, YOUR HONOR.
>> TO THE PARTIES ON EITHER WAY
HERE.
>> NO, YOUR HONOR.
>> AND WERE THERE IN FACT
AFFIRMATIVE ORDERS REQUIRING
THOSE DISCLOSURES OF THOSE
OPINIONS AND WERE THEY IN SOME
FORM OF WRITTEN ORDERS TO THE
COURT, INTERROGGATORIES OR
SOMETHING ELSE?
>> ABSOLUTELY, YOUR HONOR.
MOST CIRCUIT COURTS HAVE
EXTENSIVE PRETRIAL ORDERS
SETTING OUT THE TIMING AND THE
AMOUNT OF INFORMATION THAT
SHOULD BE GIVEN WITH RESPECT TO
THE CURRICULUM AT THE BASIS THE
EXPERT'S REPORT, WHAT THE
EXPERT RELIED ON, ET CETERA.
>> AND WERE THOSE ALL WITHIN
THE TIME PARAMETERS OF THE
STATUTE?
WE WOULD LOOK AT THOSE, WERE
ALL THE TIME PERIODS, WERE
THOSE AT LEAST X NUMBER OF DAYS
BEFORE?
>> THE 8th CIRCUIT RULES DON'T
RELATE TO THE STATUTE --
>> I UNDERSTAND.
>> BUT HERE, THE INFORMATION
WAS ALL PROVIDED AND
PLAINTIFF'S COUNSEL DECIDED NOT
TO TAKE THE DEPOSITIONS.
SO IT WOULD, THE INFORMATION
DID COME JUST COINCIDENTALLY
WITHIN THE TIME PARAMETERS
PROVIDED BY THE STATUTE.
>> SO THE REPORT WHICH SAYS
SHALL BE FILED FIVE DAYS PART
PRIOR TO THE --
>> THAT'S NOT IN THE APPLICABLE
IN THIS CASE.
>> THAT'S AN ALTERNATIVE ISSUE,
WHAT JUSTICE LIEUSIS BRINGING
UP, IF THIS WAS COMPLIED WITH
IN SPIRIT, WAS THAT ARGUMENT
MADE, THAT IS, -- WHAT THE,
WHAT DOES THIS TRYING TO DO IS
MAKE, NOT CREATE SOME
MEANINGLESS REPORT BUT JUST
MAKE SURE EVERYONE KNOWS WHAT'S
GOING ON, AND IT WAS FULFILLED
BY THIS FUNCTIONAL ARGUMENT.
>> IT WAS MADE IN OUR BRIEFS
BEFORE, YOUR HONOR.
IT WAS NOT MADE TO THE CIRCUIT
COURT.
THE CIRCUIT COURT KNEW WHAT HAD
BEEN PROVIDED SO THERE WAS NO
ISSUE {PLMPT} LITTLE RAISED IN
HIS RELY THAT -- REPLY THAT WE
DID NOT MAKE THAT TO THE
DISTRICT, AND HE'S ABSOLUTELY
CORRECT.
>> WELL, BECAUSE THEY DIDN'T
CHALLENGE THAT YOU HAD NOT
COMPLIED WITH THE TIME PERIODS
AS FAR AS EXCHANGE FOR
INFORMATION SO THERE'S NO
REASON TO PULL IT OUT OF THE
AIR TO MAKE AN ARGUMENT THAT
THEY DID NOT ASSERT.
>> LET ME ASK YOU A QUESTION.
SO HOW DO YOU FACTOR IN THE
GUIDELINES IN YOUR PARADIGM?
UNIFORM GUIDELINES?
>> I BELIEVE THE UNIFORM
GUIDELINES, WHICH PERMIT THE
TAXATION OF EXPERT WITNESS FEES
IN PREPARATION OF ANY COURT
ORDER REPORT REFLECT THE FACT
THAT THAT IS PROCEDURAL, THAT
THE PLETHUDBY WHICH COSTS ARE
TAXED UNDER -- METHOD BY WHICH
THE COSTS ARE TAXED UNDER THE
UNIFORM GUIDELINES WHICH THIS
CIRCUIT COURT FOLLOWED
EVIDENCED THE FACT THAT IT IS A
PROCEDURAL MECHANISM AND
THEREFORE GOES TO THE
UNCONSTITUTIONALITY OF THE
STATUTE.
>> NO THE GUIDELINES THEMSELVES
SAY THAT THEIR THEY ARE
ADVISORY AND ONE OF THE
LIMITATIONESS, THE SECOND OF
THE TWO LIMITATIONS EXPRESSED
IS THAT THESE GUIDELINES ARE
NOT INTENDED TO PREJUDICE THE
RIGHTS OF ANY LITIGANT
OBJECTING TO AN ASSESSMENT OF
COST.
THAT'S BASED ON SUBSTANTIVE
LAW.
>> YES, YOUR HONOR.
>> SO WHY COULDN'T YOU SAY THAT
THE SUBSTANTIVE LAW HERE IS
THAT THE REPORT HAS TO BE IN
WRITING AND THAT THESE
GUIDELINES ARE NOT SUPPOSEDS TO
BE USED TO CONTRADICT THAT
RIGHT TO RECEIVE A WRITTEN
REPORT FROM AN EXPERT?
ISN'T THAT CONSISTENT WITH THE
GUIDELINES?
>> WELL, THE, THE GUIDELINES
SAY THAT IF YOU SUPPLY A REPORT
DIRECTED BY THE CIRCUIT COURT,
THE 8th CIRCUIT RULES DON'T SAY
THE EXPERT HAS TO SIGN THE
REPORT.
IT JUST SAYS YOU HAVE TO
FULFILL THESE REQUIREMENTS.
THE STATUTE NOT ONLY SETS TIME
PERIODS AND SAYS THE EXPERT HAS
TO SIGN THE REPORT.
SO THERE IS A DIFFERENTIATION
AND YOU HAVE TO DETERMINE
WHETHER THE GUIDELINES ARE
EVIDENCE OF THE PROCEDURE, YOUR
HONOR.
>> BUT ISN'T YOUR
INTERPRETATION PREJUDICING THE
SUBSTANTIVE RIGHT THAT'S HERE
TO RECEIVE ANY EXPERT'S REPORT?

THE GUIDELINES SPEAK TO COURT
ORDERED EXPERT REPORTS.
>> CORRECT.
CORRECT.
I AGREE WITH THAT.
>> FINALLY, YOUR HONOR, THE
NEALING CASE THAT JUSTICE
QUINCE REFERRED TO ON OFFERS OF
JUDGEMENT IS THE CASE THAT THE
COURT, THE FOURTH DISTRICT IN
COURT FOLLOWED, AND I THINK
IT'S DIRECTLY ANALOGOUS HERE.
OFFERS OF JUDGMENT LIKEWISE ARE
SUBMITTED BETWEEN THE PARTIES.

THEY DON'T COME INTO COURT
UNTIL YOU SEEK TO RECOVER ON AN
OFFER OF JUDGMENT AND WHEN THE
LEGISLATURE SOUGHT TO OFFER
THOSE TIME PERIODS WITHIN AN
OFFER OF JUDGMENT THIS COURT
HELD IN AN OPINION BY JUSTICE
WELLS THAT THAT STEPPED OVER
THE LINE AND WAS PROCEDURAL.
THIS STATUTE WHICH PUTS
ADDITIONAL REQUIREMENTS AND
TIME PERIODS IN WHICH YOU MAY
COLLECT EXPERT WITNESS FEES
SEEMS TO ME TO FOLLOW THE SAME
PATTERN AND HAS THE SAME
DEFICIENCY.
>> THIS FROM A POINT -- BECAUSE
AS YOU'VE SAID THIS IS SUCH A
MURKY AREA FOR THE COURT AND,
YOU KNOW, WHEN WE SORT OF
DECIDE, OKAY, WE'RE GOING TO
DO, YOU KNOW, THIS IS
PROCEDURE.
WE SAID THAT THE DEATH PENALTY
ISSUES, YOU KNOW, PROCEDURAL
THINGS AND LET'S -- BUT HERE IS
SOMETHING THAT SEEMS SO
RELATIVELY BENIGN.
WHICH IS THAT IF EVERYONE'S ON
NOTICE OF IT IT'S ONE OF THESE
IS IT REALLY A BIG DEAL EITHER
WAY.
GIVE ME YOUR BEST SHOT AS I
KNOW IN THE OFFER OF JUDGMENT
ISSUED THE COURT WAS PROBABLY
JUST TIED OF BACK AND FORTH OR
SOMETHING BUT WHAT'S THE BEST
REASON HERE TO SAY LISTEN,
LEGISLATURE,, YOU CAN'T INVADE
THE COURT'S PROVINCE, THE
RULEMAKING PROVINCE.
THAT'S WHAT YOU'VE DONE AND
THEREFORE YOU'VE
UNCONSTITUTIONALLY CROSSED THE
LINE.
WHEN YOU ADMIT THAT THE LINE
CAN BE MURKY, WHY DO WE, WHY
USE THIS CASE TO SAY, YOU KNOW,
YOU REALLY CROSSED OVER THE
LINE AND WE'RE GOING TO FIND
THIS UNCONSTITUTIONAL?
>> I COMPLETELY AGREE WITH YOUR
HONOR.
THIS DOESN'T HAVE IMPORTANCE OF
THE DEATH CASE THAT YOU'RE
GOING TO HEAR LATER THIS
MORNING.
>> BUT THAT'S A PROCEDURE --
BECAUSE THERE'S BEEN SUCH A --
WE'VE HAD OVER THE LAST FEW
YEARS TRYING TO KEEP THIS
BALANCE AND BE DEFERENTIAL TO
THE LEGISLATURE WHERE THAT'S
NEEDED AND, YOU KNOW, IF
NECESSARY, REENACTED BECAUSE
IT'S -- IT'S NOT SUCH A BIG
DEAL CATEGORY.
>> I GUESS MY RESPONSE, YOUR
HONOR, IS IT IS, THIS COURT I
THINK IS GENERALLY BIZARRE.
MATTERS OF COURT ADMINISTRATION
T. SEEMS BETTER LEFT TO THE, TO
THIS COURT AND TO THE CIRCUIT
COURT FOLLOWING ITS MANNIDATES
TO DETERMINE THE PROCEDURES BY
WHICH THINGS SUCH AS EXPERT
REPORTS AND HERE THE, THE
CIRCUIT COURT DID THAT.
AND THEN TO DEPRIVE A WINNING
--
>> NOW IF THEY SAID IT'S GOING
TO HAVE TO BE ON 8 BY 11 PAPER
AND IT'S GOING TO HAVE TO BE ON
THIS LETTERHEAD AND THE
LEGISLATURE NOW WE WOULD BE
SAYING COME ON NOW YOU ARE
REALLY MICROMANAGING BUT YOU
ALREADY AGREED I THOUGHT I
HEARD YOU SAY THAT THE REPORT
ITSELF, IF IT HAD HAD BEEN PUT
INTO THE RIGHT, WOULD'VE BEEN
FINE AS A SUBSTANTIVE MATTER,
THAT THEY COULD'VE DONE THOSE
TWO TOGETHER.
>> CORRECT.
>> NOW ONCE WE -- YOU GET
THERE, NOW WE'RE ONLY TALKING
ABOUT THET LAST PART, WHICH IS
THE, THE TIME.
AND THAT'S THE ONLY PART YOU'RE
ATTACKING AS BEING
UNCONSTITUTION {SNL}.
>> NO.
NOT AT ALL, YOUR HONOR?
I BELIEVE THAT THE STATUTE HAS
TO BE RULED AS A WHOLE.
THE QUESTION THAT I AGREED WITH
JUSTICE QUINCE WAS IF 92 HAD
BEEN AMENDED WITH RESPECT TO
THAT PART, THEN YOU WOULD A-- I
WOULD AGREE ITS SUBSTANTIVE.
THIS STATUTE NOT ONLY SAYS YOU
HAVE TO DO THESE THINGS, SIGN
THE REPORT, BUT YOU HAVE TO
SUBMIT IT FIVE DAYS BEFORE
DEPOSITION AND --
>> YOU ARE REALLY ATTACKED THE
TIME LIMIT?
>> THE TIME LIMITS AS
INTEGRATED INTO THE STATUTE,
YOUR HONOR.
I THINK THAT YOU CAN'T SEPARATE
THE STATUTE WHEN YAO VIEWING IT
FOR SUBSTANTIVE NATURE.
>> I THINK UNLESS THE COURT HAS
QUESTIONS I THINK YOU HAVE THE
POINTS.
>> THANK YOU VERY MUCH.
REBUTTAL.
>> MAY IT PLEASE THE COURT.
I'D LIKE TO TO TOUCH ON A FEW
THINGS.
FIRST OF ALL, WITH REGARD TO
YOUR COMMENT, JUSTICE CANTERO,
THIS COURT IN DEPARTMENT -- AS
SMITH AGAINST DEPARTMENT OF
INSURANCE MADE PLAIN THAT THE
LEGISLATURE SOMETIMES WILL HAVE
TIME LIMITS IN SUBSTANTIVE
PROVISIONS AND THAT DOES NOT
BREACH THE SEPARATION OF
POWERS.
AND THIS IS ONE OF THOSE CASES.

>> WHILE WE'RE HERE, IT'S VERY
CLEAR, AND YOU'VE AGREED THAT
92 CREATES THE RIGHT TO RECOVER
THAT, THAT ITEM, THAT COST.
THAT SUBSTANTIVE RIGHT TO RE,
TO RECOVER.
AND I'M STILL AT A LOSS TO
UNDERSTAND WHY THAT THE REST OF
THIS, WHEN IT TELLS YOU THEN
THE EXPERT WITNESS FEES, THE
THIS IS HOW YOU HAVE TO DO IT
AND THAT'S THE PROCEDURE BY
WHICH YOU ENFORCE THESE RIGHTS
AND YOU HAVE TO REND ARREPORT.

YOU ARE GOING TO HAVE TO DO IT
WITHIN FIVE DAYS AND YOU ARE
GOING TO HAVE TO DO WITHIN 20
DAYS PRIOR TO DISCOVERY SO I'LL
REALLY AT LOSS TO EVEN
UNDERSTAND THIS FIRST CONCEPT
THAT THIS IS THE SUBSTANTIVE
PART.
THIS IS THE PROCEDURAL.
THE MANNER, THE METHOD, THE
FORM THAT YOU HAVE TO FOLLOW TO
GET THAT COST THAT WAS, THAT
WAS PROVIDED IN 92.
NOW WHY IS THAT INAPPROPRIATE?

>> IT'S SIMPLY DESCRIBING WHICH
COSTS ARE TAXABLE, YOUR HONOR.

I THINK YOU'VE AGREED THAT
LEGISLATURE CAN SAY, NOPE COST
OF TAX.
IT CAN THEN SAY A COST IS
TAXABLE IF YOU PROVIDED A
REPORT.
LOOK AT 92.231 ITSELF IT SAYS
COSTS ARE TAXABLE AS TO
WITNESSES WHICH SHALL HAVE
TESTIFIED.
THEY HAVEN'T TESTIFIED.
>> THESE WITNESSES TESTIFIED,
HAVE NAY NOT.
>> OKAY AGAIN WE ARE MIXING
APPLES AND OR{SNOOMPTION} SNOW
WE ARE SNOT.
IT'S A RESTRICTION ON THE
RIGHT.
>> AND MAY WHERE JUST POINT OUT
TO --
>> ONE LAST COMMENT.
YOU ARE WELL OVER YOUR TIME.
>> YES.
TO JUSTICE PARIENTE.
AND I'M READING ON PAGE 602.
FIRST DISTRICT COURT CASE.
THE FIRST DISTRICT COURT
DIRECTLY FILED THE STATUTE AS
AN UNCONSTITUTIONAL INTRUSION
ON THE COURT'S POWERS AND
THAT'S ALL IT TAKES.
TO BE A DECLARATION OF
UNCONSTITUTIONAL.
RESPECTFULLY REQUEST YOU GIVE
THE RELIEF REQUEST.
>> THANK YOU VERY MUCH.
WE'LL TAKE THE CASE UNDER
ADVISEMENT.
THE NEXT CASE ON THE CALENDAR
THIS MORNING IS SMITH v. STATE
OF FLORIDA.
>> GOOD MORNING.
MAY IT PLEASE THE COURT, MY
NAME IS TERESA POOLER, I'M AN
ATTORNEY FROM MIAMI.
I WAS COURT APPOINTED TO
REPRESENT COREY SMITH, WHO IS
BEFORE THIS COURT ON AN APPEAL
FROM TWO SENTENCES OF DEATH
ARISING FROM A 17-COUNT
INDICTMENT.
THIS CASE WAS IN FRONT OF JUDGE
SCOTT BURNSTEIN IN THE 11th
JUDICIAL CIRCUIT.
I'M HERE TO ASK THIS COURT TO
REVERSE THIS CONVICTIONS AND
REMAND THIS CASE FOR A NEW
TRIAL.
THERE ARE SEVERAL --
>> YOU HAVE A NUMBER OF ISSUES
IN THIS CASE.
>> YES, MA'AM.
>> AND WITH YOUR TIME
LIMITATIONS, WHICH OF THE
ISSUES ARE YOU GOING TO
CONCENTRATE ON?
>> WELL, I WAS GOING TO
CONCENTRATE FIRST ON THE
SECURITY ISSUES, SECOND ON HIS
MOTHER'S COMMENTS TO THE JURY,
AND THE COURT'S FAILURE TO
STRIKE THE JURY PANEL.
THE ISSUE OF HEARSAY OF THE
POLICE REPORT, AND THE ISSUES
PERTAINING TO THE LIMITATION ON
CROSS EXAMINATION OF SOME OF
THE WITNESS.
>> NOW THIS WAS, SO THERE --
YOUR FIRST ISSUE YOU WANT TO DO
IS THE SECURITY IN THE COURT.
>> WELL, THAT'S THE ORDER I HAD
THEM IN, FOR THIS MATTER.
>> JUST LOOK AT THIS IN A
CONTEXT OF WHAT THIS INDICTMENT
WAS ALL ABOUT.
AND THIS WAS --
>> YES, MA'AM.
>> WITHOUT A DOUBT A BIG DRUG
RING NAT WAS GOING ON IN MIAMI
IN THE LIBERTY CITY AREA.
>> YES, MA'AM.
>> THE ALLEGATIONESS IN THE
INDICTMENT ARE THAT THIS MAN
HAD PEOPLE KILLED WHO WERE --
>> YES, MA'AM.
>> INTERFERING WITH HIS DRUG
BUSINESS.
>> YES, MA'AM.
>> A LOT OF THE WITNESSES WERE
GOING TO BE PEOPLE WHO WERE A
PART OF THAT DRUG BUSINESS.
>> YES, MA'AM.
>> AND SO WHY SHOULDN'T THE
COURT UNDER THOSE KIND OF
CIRCUMSTANCES MADE THESE KIND
OF SPECIAL SECURITY PROVISIONS?

>> WELL, MY ONLY -- MY BIGGEST
CONCERN WITH THIS IS NOT WHAT
HAPPENED AS THE TRIAL
PROGRESSED BECAUSE AS YOU SEE
WHEN YOU READ THE TRANSCRIPT,
THERE WERE SOME ISSUES, THERE
WERE SOME PEOPLE IN THE COURT
THAT WERE A LITTLE SUSPECT.
THERE WERE WITNESSES THAT,
CLAIMED INTIMIDATION BECAUSE
THEY RECOGNIZED MURDERS AND SO
ON AND YES THAT ABSOLUTELY
HAPPENED.
THOSE ARE THE FACTS.
THAT'S WHAT IT WAS.
HOWEVER, ONE OF THE, ONE OF THE
PROBLEMS WAS THAT THERE WAS A
MAGNETOMETER.
THERE'S A MAGNETOMETER IN THE
JUSTICE BUILDING.
THERE WAS A SECOND ONE SET UP.

THIS ONE WAS SET UP --
>>ERANT THOSE KINDS OF THINGS
DONE IN BUILDINGS ALL THE TIME
NEW.
IN THIS WORLD THAT WE LIVE IN
NOW, YOU CAN GO THROUGH THE
METDLETECTORS LINKINDS OF
BUILDINGS SO WHAT MADE THIS ONE
SPECIAL OR OUT OF THE ORD NAR.

>> -- ORDINARY.
>> WHAT MADE THIS ONE SPECIAL
AND JUDGE BURNSTEIN BROUGHT
THAT UP AND THEY GO THROUGH
THAT IN AIRPORTS BUT THIS IS A
JURY IN THE RICHARD BURNSTEIN
BUILDING THE POINT I WAS TRYING
TO MAKE IN MY BRIEF BUT
SUBSEQUENTLY.
WHAT THE COURTS NEED TO DO
PERHAPS IS LOOK AT THESE ISSUES
FROM THE POINT OF VIEW OF OO
JURY AND WHAT DO THEY THINK
WHEN THEY GO THROUGH NOT ONE
BUT TWO METAL DETECTORS AND
FACED WITH ARMED GUARDS AT THE
METDLETECTORS.
THERE IS SOME -- AND I DO HAVE
TO SAY --
>> WHEN YOU SAY ARMED GUARDS
ARE, THESE, WERE THEY LIKE DID
THEY HAVE OOZIES.
>> NO MA'AM.
I DON'T THINK THEY HAD OOZY.
>> WHEN YOU SAY ARMED GUARDS
ARE YOU TAKING NORMAL
COURTHOUSE SECURITY KIND OF
PEOPLE?
>>> GENERALLY SPEAKING IN THE
COURTHOUSE THIS IS WHAT I KNOW.

>> YOU SAID ARMED GUARDS AND SO
THAT, THAT IMPLIES SOMETHING
THAT'S MUCH MORE A SHOW OF
FORCE THAN NORMAL SECURITY
MEASURES.
>> OKAY.
THE GUARDS THAT FOR EXAMPLE
WHEN YOU GO INTO THE JUSTICE
BUILDING ARE NOT ARMED.
THEY ARE JUST, YOU KNOW, LADIES
AND GENTLEMEN WHO ARE THERE.
THESE GUARDS HAVE -- WERE
POLICE OFFICERS IN UNIFORMS
WITH SIDE ARMS FROM MY
UNDERSTANDING WHAT THE RECORD
REFLECTS SO THIS WAS DIFFERENT
THAN THE ORDINARY GOING THROUGH
THE --
>> ISN'T AS THIS SET UP, WASN'T
THE INDICATION THAT IT WAS DONE
FOR THE ENTIRE WIN WING OF THE
BUILDING.
IT WAS NOT JUST SET UP FOR THE
ONE PERSON.
WASN'T THERE ARE A 300 PERSON
GROUP THAT CAME IN.
>> THERE WERE APPROXIMATELY 300
PEOPLE THAT CAME IN.
THE JUDGE BECAUSE IT WAS NOT A
VERY BIG COURTROOM AND NOT A
VERY BIG AREA HAD TO TAKE THEM
IN GROUPS OF 50 OR 52 PEOPLE
AND WHAT THE COURT DID WAS THEY
WENT THROUGH QUESTIONING WITH
FIRST LIKE SAY THE FIRST 52 IN
THE COURTROOM AND FOUND OBVIOUS
ISSUES WHY THOSE PEOPLE WOULD
NEED TO BE EXCUSED, HEALTH
ISSUES, THINGS LIKE THAT WHY
THEY COULDN'T SIT AND THE JUDGE
WAS WHAT HE DID WAS ASK BOTH
SIDES OF THE CAUSE CHALLENGES
DO YOU AGREE SO WE DON'T NEED
TO KEEP THESE PEOPLE HERE
BEFORE THEY WENT INTO THE DEATH
PENALTY AND SO ON RATHER THAN
SPENDING A LOT OF TIME ON
RATHER SEVERE ISSUES THEY TRIED
TO GET --
>> EXCUSE ME.
WASN'T THOUGH THE POINT THOUGH
THAT THEY COULDN'T SCREEN ALL
300 AT ONE TIME AND THEY WERE
DOING SOMETHING TO MAKE SURE
THAT THE PEOPLE THAT DIDN'T GET
INITIALLY SCREEN GOT SCREENED?

DO THESE JURORS HAVE TO GO
THROUGH TWO SCREENINGS.
>> YES, MA'AM.
THEY WENT THROUGH THE ONE
DOWNSTAIRS AND THEN UPSTAIRS TO
THE 7th FLOOR WHEN YOU SAY, I'M
TRYING TO RESPOND TO YOUR
QUESTION,.
>> THAT'S WHAT I'M TRYING TO
UNDERSTAND, I THOUGHT THERE WAS
SOMETHING LIKE WHAT JUSTICE
LEWIS WAS ASKING WHICH I DIDN'T
HEAR YOU RESPONDING.
TO WEREN'T THEY GENERALLY DOING
THAT IN THAT PART OF THE
COURTHOUSE?
>> IN THAT PART OF THE
COURTHOUSE, IT IS A WING WITH
TWO COURTROOMS IN T. ONE OF THE
COURTROOMS WAS NOT IN SESSION.

IT WAS JUST THIS COURTROOM THAT
WAS IN SESSION.
THERE WAS AN ADMINISTRATIVE
OFFICE OF THE COURT BEHIND T.
THAT'S T. YOU GO TO THE JUDGE'S
CHAMBERS FROM BEHIND.
YOU WALK IN THROUGH A DOUBLE
SET OF DOORS.
THERE WAS A CHAMBER -- THERE
WAS A COURTROOM WITH JUDGE
BURNSTEIN'S CASE, THE STATE OF
FLORIDA v. COREY SMITH.
THE MAGNETOMETER WAS SET -- I
WENT THROUGH T. IT'S NOT IN THE
RECORD BUT IT WAS SET UP RIGHT
IN THE HALLWAY AND THE PEOPLE
WENT INTO THE COURTROOM.
THERE WAS NO OTHER TRIAL.
THERE WAS NO OTHER --
>> WHEN YOU TALK -- YOU SAID
EARLIER WE NEED TO TAKE THIS
FROM THE JURORS' POINT OF VIEW.

I'LL NOT SURE I AGREE WITH YOU
BUT IF WE DID TAKE IT FROM
THEIR POINT OF VIEW THEY DON'T
KNOW THAT THERE'S NOT ANOTHER
TRIAL GOING ON OR MAYBE THERE'S
NOT A BREAK GOING ON OR HOW
MANY OTHER COURTROOMS HAPPEN TO
BE IN THAT WING.
>> THAT'S TRUE.
THEY DON'T KNOW.
AND I DON'T KNOW WHAT THE
JURIES KNOW.
>> I GUESS THE, THE BOTTOM LINE
ON IT IS THAT THIS TRIAL, WHICH
IS, WAS A, YOU KNOW, GOT SO
MANY VOLUMES --
>> 5,000-SOMETHING PAGES.
>> INJUDGE MADE SO MANY EFFORTS
TO TRY TO BALANCE.
AND WAS THERE -- IF SOMEBODY
HAD RAISED A CONCERN AND SAID,
LISTEN I WANT THERE TO BE
VOYEUR DIRE ON WHETHER THIS
SUPREME COURT IS DIRECTED TO
THIS TRIAL OR DOES THIS CREATE
CONCERN WHETHER THIS DEFENDANT
WAS GUILTY THAT CD'VE BEEN
DUNNED WAS THAT ASKED FOR IT?
IS THAT IN THE RECORD?
WAS IT DONE.
>> JUDGE, I DON'T BELIEVE THAT
WAS DONE.
>> SO YOU'RE NOT RAISING -- SO
THERE'S NOT A POINT OF -- I
DON'T SEE WHERE A REVERSIBLE
ERROR HAS BEEN MADE ON THIS
POINT ON THIS RECORD IN THIS
RECORD.
>> THE ONLY POINTS THAT DID
HAPPEN AND I WILL BE HONEST
WITH YOU, I DID NOT MEMORIZE
THE TRANSCRIPT IT WAS KIND OF
LONG BUT THERE WAS, THERE WAS
PARTS IN IT WHERE THE, THE
ATTORNEYS DID SAY TO THE COURT
JUDGE, YOU KNOW, WE NEED A
HEARING ON THIS OR WE OBJECT TO
THIS.
THERE ARE, YOU KNOW, SIX GUARDS
IN THE COURTROOM.
THERE ARE GUARDS OUTSIDE.
WE THE ATTORNEYS, THE DEFENSE
COUNSEL WAS BEING WANDED IN
FRONT OF THE, THE VENEER.
AND SO ON AND THEY DID OBJECT
TO IT.
YOU KNOW, THE RECORD IS WHAT
THE RECORD IS.
AND --
>> BUT IT WASN'T JUST THE
DEFENSE ATTORNEYS.
I MEAN EVERYONE.
>> EVERYONE --
>> EVERYONE WAS BEING WANDED SO
IT WASN'T LIKE THE COURT WAS
PICKING OUT THE DEFENSE
ATTORNEYS AND NO ONE ELSE.
>> NO.
OF COURSE NOT.
NO, OF COURSE NOT.
THE COURT WAS NOT PICKING OUT
THE DEFENSE ATTORNEYS.
>> AND THIS TRIAL COURT IN THE
CONTEXT JUSTICE QUINCE WAS
POINT {OUTH}, IN THE CONTEXT OF
THE MURDER OF A JUDGE THAT HAD
OCCURRED IN ATLANTA IN A
COURTROOM.
ISN'T THAT CORRECT?
>> YOUR HONOR, I THINK THIS
TRIAL WAS BEFORE THAT.
THIS TRIAL --
>> WAS IT.
>> YEAH.
THIS TRIAL ENDED, I BELIEVE, IN
LIKE DECEMBER OF 2005.
AND IT'S BEEN, YOU KNOW TAKING
QUITE A BIT OF TIME TO GET IT
TO THIS POINT BECAUSE OF THE
TRANSCRIPT AND SO ON OTHER
ISSUES.
>> HOW LONG DID THIS VOYEUR
DIRE TAKE?
>> THE VOYEUR DIRE I BELIEVE
TOOK FOUR OR FIVE DAYS.
>> AND HOW LONG WADS THIS
TRIAL.
>> THE TRIAL ENDED UP BEING --
WAS OVER A COURSE OF FIVE
MONTHS.
BUT WHAT HAPPENED ACTUALLY WAS
THAT THERE WAS VARIOUS BREAKS
THAT THE JUDGE TOOK.
I THINK THE ACTUAL TESTIMONY
TOOK A LITTLE OVER A MONTH,
MAYBE ABOUT SIX WEEKS.
>> AND THE ENTIRE TRIAL WAS IN
THE GURSTEIN BUILDING.
>> YEAH, THE ENTIRE TRIAL WAS
IN THE GURSTEIN BUILDING.
>> THAT BUILDING HAS LOT OF
PEOPLE IN IT EVERY DAY.
>> YES, IT DOES.
>> DID THEY HAVE THE SAME
SPECIAL SECURITY -- WERE THE
DEFENSE LAWYERS WANDED IN FRONT
OF THE JURORS EVERY DAY.
>> I DON'T KNOW IF IT WAS EVERY
DAY.
>> IT'S NOT IN THE RECORD.
>> I AM GOING OFF WHAT WAS IN
THE RECORD WHICH IS WHAT THIS
COURT WOULD SEE.
>> I GUESS YOU ARE MAKING A
POINT THAT PERVASIVELY, THESE
JURORS WERE, AND JURORS KNOW
CERTAINLY IN A HIGH PROFILE
CASE THERE ARE PRECAUTIONS
TAKEN.
I GUESS I WOULD, THERE WAS
SOMETHING IN THE RECORD THAT
SHOWED ME THAT THIS STARTED TO
PUT IN THE JURORS' MINDS SOME
PRE-ORDAINED PREJUDICE AGAINST
THE DEFENDANT THAT WASN'T
ADEQUATELY ADDRESSED I WOULD
SHARE YOUR CONCERN BUT YOU KNOW
YOU HAVE GOT A LOT OF POINTS
HERE.
>> YES.
>> ARE YOU GOING -- THE ONE --
THERE WAS ONE POINT THAT
CONCERNS ME AND MAYBE YOU COULD
JUST JUMP TO IT IS WHAT YOU
ATE.
WHETHER THIS ISSUE OF
DISCLOSING THAT THE WITNESS
CARLOS WALKER WOULD TESTIFY
INCONSISTENTLY WITH HIS
DEPOSITION.
>> CORRECT.
CORRECT.
>> YOU DIDN'T -- WERE YOU
THINKING THAT THAT WAS ONE OF
YOUR STRONG POINTS OR --
>> THAT'S NOT ONE OF MY
STRONGER POINTS THAT I WAS
THINKING OF BUT {YA} DO BELIEVE
-- YOU KNOW, THE ISSUE THAT I
LOOK AT IN THIS TRIAL AND I
DON'T KNOW IF THE COURT WOULD
LOOK AT THIS AS A WHOLE IS YOU
KNOW THIS TRIAL WENT ON FOR A
LONG TIME.
AS JUSTICE QUINCE, ACCURATELY
POINT OUT, THERE WERE A LOT OF
CHARGES, 17-COUNT INDICTMENT,
AND THIS WAS NOT, IF YOU PARDON
MY EXPRESSION, SPITTING ON THE
SIDEWALK.
THESE WERE FIRST DEGREE
MURDERS, CONSPIRACY TO COMMIT,
RICO, TRAFFICKING AND DRUGS,
THIS WAS A VERY, VERY SERIOUS,
YOU KNOW, SET OF ALLEGATIONS
HERE.
AND THROUGHOUT THE COURSE OF
THE TRIAL, THERE WERE SOME OF
THESE ERRORS WHICH I ARGUED
WERE ERRORS THAT OCCURRED,
WHICH I BELIEVE THE STATE IN
THEIR BRIEF NOT TO JUMP AHEAD
BECAUSE I WILL TELL YOU WERE
HARMLESS ERRORS.
BUT YOU GET -- YOU KNOW, WHAT
THE POINT I WAS GETTING TO, OR
TRYING TO GET TO IS THAT, YOU
KNOW, 17 OF THESE WITNESSES
WERE CONVICTED FELONS.
AND THE RECORD I BELIEVE ADD
{QT}LY REFLECTS THAT MANY OF
THEM WERE TESTIFYING BECAUSE
THERE WAS SOMETHING IN IT FOR
THEM.
AND TO, TWO OF THE POINTS I
MADE, WHICH WERE ACTUALLY I
BELIEVE KIND OF THREE THINGS
WHICH I MADE ACTUALLY KIND OF
IN THE SAME VEIN WERE THE
LIMITATION OF THE CROSS
EXAMINATION OF TWO OF THE
WITNESS.
I AM NOT EVEN GOING TO GO INTO
THE LIMITATION OF THE MEDICAL
EXAMINER DR.^LOU AND THAT IS
THE, THAT IS AN ISSUE THAT I
THINK IS IMPORTANT BECAUSE WHAT
HAPPENED THERE WAS WITH, WITH
WITNESS ANTHONY FAIL, ANTHONY
FAIL WAS THE BOYFRIEND OF ONE
OF THE WOMEN THAT WAS KILLED
AND I BELIEVE IT WAS SUPPOSED
TO HAPPEN WAS HE WAS SUPPOSED
TO HAVE BEEN KILLED AND HE LET
THE GIRL ANGELA WILSON DRIVE
HIS CAR, AND SHE DROVE THE CAR
AWAY AND THE PEEP THAT WERE
SUPPOSED TO KILL HIM SHOT AT
THE CAR NOT REALLY REALIZING
SHE WAS IN IT.
SO SHE WAS, YOU KNOW, BACK AT
THE HOUSE WHERE HE WAS SUPPOSED
TO BE STILL ALIVE AND SHE WAS
KILLED.
ANTHONY FAIL DID TESTIFY, AND
THE COURT LIMITED THE CROSS
EXAMINATION ABOUT THE ISSUE
PERTAINING TO WHETHER OR NOT HE
HAD ACTUALLY CONFESSED TO
COMMITTING A HOMICIDE OF A
SPECIFIC INDIVIDUAL.
THAT INDIVIDUAL BEING CARLTON
TANNER, WHOSE NAME COMING UP
SEVERAL TIMES DURING THE COURSE
OF THIS.
HE WAS ONE OF THESE PEOPLE THAT
WAS KILLED BY MR.^FAIL AND
PERHAPS BY ONE OF THE OTHER
PEEP THAT WAS INVOLVED.
-- PEOPLE THAT WAS INVOLVED.
THE POINT THAT I WAS TRYING TO
MAKE ON THIS AND THAT I WOULD
LIKE TO MAKE ON THIS IS THAT I
BELIEVE THE COURT WAS IN ERROR
LIMITING THIS CROSS-EXAMINATION
BECAUSE IT WAS IMPORTANT FOR
THE JURY TO UNDERSTAND THE
BIASES THAT THESE WITNESSES
HAD.
AND THIS BIAS WAS A PRETTY
STRONG BIAS IN THAT HE HAD SAID
ON HIS DEPOSITION I KILLED
CARLTON TANNER.
HE WAS NEVER CHARGED WITH THIS.

AND THE COURT WOULD NOT LET
DEFENSE INQUIRE INTO WERE YOU
CHARGED WITH THIS OR NOT.
YES, MA'AM?
>> WHAT DID THE JURY KNOW ABOUT
MR.^FAIL?
AS I UNDERSTAND IT, THERE WAS
ALL KINDS OF TESTIMONY THAT HE
WAS SORT OF LIKE AN ENFORCER OR
SOMEBODY FOR THIS, THIS DRUG
RING.
>> YES.
>> AND THAT HE HAD SHOT AND
BEAT UP AND DONE ALL KINDS OF
THINGS TO A NUMBER OF PEOPLE.
>> YES.
>> SO THE JURY UNDERSTOOD.
>> RIGHT.
>> THAT THIS WAS NOT A, YOU
KNOW, AVERAGE CITIZEN.
>> EXACTLY.
>> HE WASERALLYY A TERRIBLE
PERSON.
>> RIGHT.
>> AND SO, YOU KNOW, OFTEN WE,
WE, WHEN WE EXAMINE WITNESSES,
YOU TALK ABOUT THE KINDS, THE
NUMBER OF CRIMES THEY HAVELER
COMMITTED AND THOSE KINDS OF
THINGS -- THEY HAVE COMMITTED
AND THOSE KINDS OF THINGS BUT
WE DON'T NORMALLY GET INTO A
LOT OF SPECIFICS ON THOSE TYPES
OF THINGS SO WHY WOULD THIS BE
DIFFERENT?
>> WELL, THIS WAS A STATE
WITNESS AND HE WAS TESTIFYING
FOR, FOR THE STATE OBVIOUSLY.
SO THE THEORY THAT I BELIEVE
THE DEFENSE BELOW WAS TRYING TO
BRING UP AND DID IN FACT IN
SIDE BAR YOU KNOW KIND OF RUN
AROUND MENTION TO THE COURT WAS
THAT, YOU KNOW, HERE IS ONE
SPECIFIC -- WE KNOW HE'S A BAD
GUY.
OKAY.
WE KNOW HE'S A BAD {GIMPT}
WE'VE GOTTEN ALL THAT OUT BUT
WE HAVE ONE SPECIFIC INSTANCE
OF A HOMICIDE THAT HE SAID HE
COMMITTED THAT HE SAID ON A
DEPOSITION SWORN TO AND
NOTHING'S HAPPENED.
HE HASN'T BEEN CHARGED WITH T.
THAT'S WHERE THEY WERE TRYING
TO GO TO SHOW HIS BIAS.
HERE'S A PERSON WHO, YOU KNOW,
IS TESTIFYING FOR THE STATE IN
THE MANNER -- AND HIS TESTIMONY
WAS EXTREMELY DAMAGING TO
MR.^SMITH BECAUSE HE WAS
GETTING INTO THE ISSUE THAT
CONNECTED MR.^SMITH WITH THE
DEATH OF CYNTHIA BROWN.
IN OTHER WORDS, I BELIEVE THAT
HE WAS, HE TESTIFIED THAT
MR.^SMITH HAD TOLD HIM I HAVE
TO GET RID OF THIS GIRL.
I HAVE TO KILL THIS GIRL.
SHE'S A WINS AGAINST ME AND SO
ON AND SO FORTH.
--
>> AND HOW MANY OTHER WITNESSES
TESTIFIED TO THAT SAME
INFORMATION?
>> SEVERAL.
>> THERE WAS AT LEAST ABOUT
FOUR OF THEM.
>> THERE WERE SEVERAL WITNESSES
THAT TESTIFIED TO THE
INFORMATION ABOUT, YES.
THEY WERE, AND THEY WERE ALSO,
YOU KNOW, SIMILARLY SITUATE
SAID AS, YOU KNOW THESE
CONVICTED FELONS AND SO ON.
SO THAT WOULD BE MY POINT AS TO
THAT THAT THE JUDGE DID LIMIT
THIS AND IT WAS AN AIR IN THIS
PARTICULAR CASE, IN THIS
PARTICULAR SITTUATION UNDER
THESE CIRCUMSTANCES.
THE OTHER ISSUE WHICH I FELT
WAS IMPORTANT WAS INHEARSAY
ISSUE ABOUT THE ADMISSION OF
THE POLICE REPORT.
>> BUT NOW WASN'T THAT, I MEAN,
THEY WENT THROUGH ITANE SIDE
BAR, REDACTED, AND IT WENT TO
THE QUESTION OF THE MOTIVE AND
WHY THIS PERSON WOULD HAVE A
POLICE REPORT AND WHY THE, THIS
DEATH OCCURRED.
WHY IS THAT A, A PROPER WAY TO
DO IT?
IT'S NOT COMING IN FOR THE
TRUTH OF WHAT IS THERE BUT IT'S
COMING IN FOR STATE OF MIND OF
THE PERSON SO WHY WOULD THAT
NOT BE.
>> WELL, THAT IS ABSOLUTELY
CORRECT.
I MEAN, I HAVE NO ARGUMENT WITH
THAT AT L. THE STATE WANTED TO
SHOW THAT MR.^SMITH HAD MOTE TO
HAVE KILL CYNTHIA BROWN AND THE
WAY THEY INTENDED TO DO THAT
WAS TO SHOW THAT HE KNEW
WHETHER SHE WAS RIGHT OR WRONG,
WHETHER SHE WAS MAKING IT UP OR
NOT THAT SHE WAS GOING TO SAY I
SAW HIM SHOOT DOWN MICK
JOHNSON.
THE PROBLEM WITH THE ADMISSION
OF THE ENTIRE DOCUMENT, WHICH
WAS OBJECTED TO FOR HEARSAY,
AND I DON'T THINK THE OBJECTION
BELOW WAS QUITE ACCURATE
BECAUSE THE WHOLE DOCUMENT WAS
NOT HEARSAY BUT THERE WERE
PARTS OF IT THAT WERE ADMITTED
THAT WERE AND THAT --
>> IF THAT WAS THE OBJECTION
BELOW, NOW ISN'T THAT WHAT WE
HAVE TO RULE ON?
AND I MEAN ISN'T THAT WHAT YOU
HAVE TO GO WITH?
I MEAN, IF HE DIDN'T OBJECT ON
SOME OTHER BASIS --
>> HE --
>> THEN THAT'S A DIFFERENT
STORY.
>> HE OBJECTED ON THE BASIS OF
HEARSAY.
AND IN PART, HIS OBJECTION WAS
PWHAT I'M ARGUING, IN PART
OTHERWISE OBJECTION WAS CORRECT
AND IN PART IT WAS NOT CORRECT
BUT THE JUDGE OVERRULED IT, LET
THEM REDACT PORTION {TOFS} AND
A LOT OF THOSE {ORTION} PORTION
HAD TO DO WITH, YOU KNOW, NAMES
AND ADDRESSES OF WITNESSES AND
THINGS LIKE THAT.
I THINK THERE WERE SOME OF THE
THOSE THINGS BUT WHEN YOU LOOK
AT THE POLICE REPORT {CHRBSH}
IS IN THE REPORT, -- RECORD, AS
HAVING BEEN ADMITTED STATE
EXHIBIT 133 TDOES TALK ABOUT
THINGS THAT NOT JUST THE FACT
THAT SHE IDENTIFIED THIS
INDIVIDUAL.
>> WHAT'S THE PREJUDICE --
WHAT'S THE {PREJ}ITIAL BECAUSE
YOU HAVE CONCEDED HER
IDENTIFICATION OF HIM WAS NOT
HEARSAY AND THE POLICE REPORT
WAS NOT FOUND IN HIS HOUSE.
>> EXACTLY.
>> SO NORMALLY WHEN THE STATE
IS ARGUING SOMETHING'S NOTS
HEARSAY IT'S NOT ADMITTED FOR
THE TRUTH IT'S LIKE THAT'S NOT
THE CASE BUT THIS IS CLASICALLY
NOT ADMITTED FOR THE TRUTH SO
WHAT PART OF THE REPORT THAT
CAME IN ARE YOU SAYING WAS
OBJECTIONABLE?
>> I'M SAYING THE PARTS THAT
PERTAIN TO HOW AFRAID SHE WAS
OF THIS INDIVIDUAL.
THAT SHE MOVED TO HOLLYWOOD
WOOD BECAUSE SHE WAS AFRAID.
THAT SHE DIDN'T WANT TO TESTIFY
BECAUSE SHE WAS AFRAID.
THOSE ARE THE PARTS THAT I'M
OBJECTING TO.
NOT THE FACT -- BECAUSE IT HAS
-- THAT HAS NOTHING TO DO WITH
COREY SMITH KNOWING --
>> BUT DID THE DEFENSE LAWYER
BELOW, BECAUSE I THOUGHT THAT
AGAIN THIS JUDGE LEANED OVER
BACKWARDS TO SAY DO YOU WANT TO
LIMITING INSTRUCTION WHAT DO
YOU WANT REDACTED.
WAS THAT -- WAS IT ASKED FOR
FOR THERE TO BEFURCATE
REDACTION AND THE, AND THAT WAS
-- THAT WAS OVERALLED BY THE
JUDGE?
>> I'M NOT QUITE SURE THAT I
CAN ANSWER THAT QUESTION BASED
ON WHAT WAS ON THE RECORD T.
APPEARS --
>> BUT THE PROBLEM IS, IF, IF
IT WASN'T --
>> I UNDERSTAND THE PROBLEM.
>> IF IT WASN'T PRESERVED ON
THAT ISSUE AND THEN AT THE END
THEY ASKED AFTER IT HAD ALL
GONE IN THEY SAID I MEAN ONLY
PART HAD GONE IN THEY SAID WE
WANT IT ALL IN.
DIDN'T THEY DO THAT?
>> THEY DID THAT EVERVEALLY.
>> WOULDN'T THAT BE A WAIVER
ANYWAY IF THEY DIDN'T HAVE THE
WHOLE THING GO ON.
>> ESSENTIALLY IT MIGHT BE A
WAIVER.
SO I'M NOT SURE WHY THEY, I'M
NOT SURE WHY THEY DID THAT
THOUGH.
I THINK THAT WAS PART OF WELL
IF PART OF IT'S GOING IN WE
MIGHT AS WELL SEE IT IN THE
ENTIRE CONTEXT EVEN THOUGH WE
ARE ESSENTIALLY OBJECTING FROM
IT GOING IN IN THE FIRST PLACE.

>> HOW MANY DAYS LATER DOES
THAT OCCUR.
>> PROBABLY TEN DAYS.
I THINK IT WAS TEN DAYS.
AS I SAID, I CAN'T ACTUALLY
RECALL AT THIS POINT.
THE PARTS THAT I WOULD ARGUE
THAT ARE PREJUDICIAL THE PARTS
ABOUT FEAR AND THE PARTS ABOUT
WHY SHE HAD MOVED AND SO ON.
I THINK THIS WOULD BE
{PREJ}ITIAL TO THE DEFENDANT
BECAUSE THIS YOUNG WOMAN THAT
WAS KILLED IS A VERY
SYMPATHETIC CHARACTER,
SYMPATHETIC YOUNG WOMAN ASINGLE
MOTHER AYOUNG GIRL, SOMEONE WHO
WAS TRYING TO DO THE RIGHT
THING AND THE FACT THAT IT WAS
PRESENTED TO THE JURY THAT SHE
WAS AFRAID OF HIM I THINK MADE
HIM LOOK JUST EXTREMELY WORSE
THAN HE ALREADY WAS LOOKING IN
FRONT OF THAT JURY.
>> YOU HAD MENTIONED IN ANSWER
TO MY QUESTION ABOUT ISSUE 8
THE IMPRESSION I GOT WAS SO
MUCH CAME IN HOW COULD YOU SAY
ONE THING IS ACTUALLY HARMFUL
AND IT'S LIKE SO OVERWHELMING.

DID ANYONE, CERTAINLY NOT RAISE
AN APPEAL MAKE AN ARGUMENT THAT
ALL THESE KIDS SHOULD NOT BE
JOINED TOGETHER?
THAT THEY SHOULD BE TRIED
SEPARATELY.
THAT THESE WERE MURDERS AT
DIFFERENT TIMES.
THAT THERE -- WAS THAT, WAS
THAT ISSUE MADE?
>> NOT TO MY KNOWLEDGE, JUDGE.

>> WELL, AGAIN, YOU'RE THE ONLY
ONE THAD WOULD HAVE THE
COMPLETE KNOWLEDGE.
>> I DON'T BELIEVE THAT IT WAS,
YOUR HONOR.
I BELIEVE THAT THESE WERE ALL
JOINED.
THERE WAS NO, NO KIND OF MOTION
TO SEPARATE THEM OUT.
THIS WAS TRIED ALONE FROM THE
OTHER DEFENDANTS BECAUSE OF
COURSE THERE WERE EIGHT OTHER
DEFENDANTS INCLUDING ONE WHO
THE PERSON WHO ACTUALLY
MURDERED CYNTHIA BROWN WHO HAS
NOT GONE TO TRIAL YET, THEY
WERE SEVERED OUT ONLY BECAUSE
MR.^ASKED FOR A SPEEDY TRIAL SO
YOU KNOW THAT'S WHY THEY
WEREN'T ALL TRIED TOGETHER AND
THOSE OTHER DEFENDANTS HAVE,
YOU KNOW, SUBSEQUENTLY PLED OUT
OR WHATEVER.
>> THIS CASE WAS TRIED AFTER
THE FEDERAL COURT CASE.
>> YES, SIR, YES, SIR.
>> AND BUT THE FEDERAL COURT
CASE WAS, DID IT COME BACK?
>> I DON'T KNOW, JUDGE.
I'M SORRY.
I DON'T KNOW.
>> WASN'T THERE A RESENTENCING
ORDERED IN THE FEDERAL COURT
CASE?
>> I BELIEVE THAT THERE WAS,
YES.
>> YOU DON'T KNOW THE STAT
{SNS}.
>> I'M NOT CLEAR ON THE STATUS
OF THIS AT THIS POINT, NO, I'M
NOT.
>> YOU HAD ALSO MENTIONED THAT
YOU WANTED TO DISCUSS THE
MEDICAL -- THE LIMITATION ON
THE MEDICAL EXAMINER'
TESTIMONY.
NOW THIS IS THE -- THEY WANTED
TO BRING OUT FROM THE MEDICAL
EXAMINER THAT THE, THE, THIS
ASPHYXIATION COULD'VE BEEN DONE
DURING A FEDERAL ACT?
>> THE TRIAL JUDGE SAID NO GET
YOUR OWN WITNESS WE ARE NOT
GOING TO ALLOW YOU TO CROSS
EXAMINE ON THAT.
>> DID HE SAY YOU COULD CALL ON
HIM AS YOUR OWN.
>> THEY DIDN'T SAY THAT.
THEY SAID GET YOUR OWN WITNESS,
AS I RECALL.
>> WASN'T HE IN FACT QUESTIONED
ABOUT THAT.
>> I'M SORRY I DIDN'T HEAR THE
QUESTION.
>> HE WAS QUESTIONED.
ABOUT WHETHER OR NOT --
>> SHE WAS QUESTIONED --
>> THAT THIS PARTICULAR VICTIM
COULD'VE DIED UNDER THOSE
CIRCUMSTANCES.
>> SHE WAS QUESTIONED I BELIEVE
ABOUT THE VARIOUS WAYS SOMEONE
COULD ASPHYXIATE OTHER THAN
HANDS BEHIND THEIR THROATS
INCLUDING FALLING DOWN BEHIND A
REFRIGERATOR AND HAVING SOMEONE
LAY ON TOP OF THEM.
I DON'T BELIEVE THE COURT WAS
-- THE DEFENSE WAS ALLOWED TO
GO INTO THE WHOLE ACT OF YOU
KNOW PEOPLE WHO GET MORE SEXUAL
PLEASURE OUT OF ASPHYXIATING
THEIR PARTNER IN TERMS OF HOW
THAT WOULD'VE AFFECTED THEIR
CAUSE OF DEATH.
I DON'T BELIEVE THEY WERE
ALLOWED TO GO INTO THAT.
I THINK THEY WERE ALLOWED TO --
I UNDERSTAND WHAT THEY
MENTIONED BELOW WAS THEY WANTED
TO USE THAT AS SOME KIND OF
SYNDROME OR ALTERNATIVE CAUSE
OF DEATH BECAUSE OF A KIND OF
FIT IN WITH THE OTHER
CIRCUMSTANCES.
IT WAS, IT WAS A CHEESY MOTEL
AND YOU KNOW OKEECHOBEE ROAD OR
SOMETHING IN MIAMI THAT SHE WAS
FOUND IN.
IT WAS, YOU KNOW, SHE WAS WITH
HER BOYFRIEND.
IT WAS SOME EVIDENCE OF DRUG
PLAY.
THERE WAS A MIRROR.
>> THERE WAS NO OTHER EVIDENCE
OF SEXUAL ACTIVITY, WAS THERE?

WAS THERE EVIDENCE OF SEXUAL
ACTIVITY IN THE ROOM?
>> I BELIEVE THAT THERE WAS
EVIDENCE THAT SHE HAD HAD SEXED
WITH HER {BHOIF}.
-- BOYFRIEND.
{CHAS} RAY DAVE {SNOOS} I
BELIEVE THAT THERE WAS.
>> I THOUGHT THERE WAS NO SEMEN
FOUND SHE WAS FOUND WITH ALL
HER CLOTHES ON, THERE WAS NO
EVIDENCE THAT THE BED SHEETS
WERE UNDONE OR ANYTHING LIKE
THAT THAT WOULD INDICATE ANY
SEXUAL ACTIVITY IN THE ROOM
BEFORE SHE DIED.
>> WELL SHE WAS FOUND AS I
RECALL WITH THE BED SHEETS
PULLED TUPE HER CHIN WITH HER
HANDS OUTSIDE OF IT AS IF
WHOEVER HAD KILLED HER HAD, YOU
KNOW, STRAIGHTENED HER OUT AND
FIXED HER UP.
I DON'T RECALL WHETHER THERE
WAS EVIDENCE OF SEMEN IN HER
VAGINAL VULVA I DON'T RECALL
EVIDENCE --
>> DON'T YOU THINK THAT'S AN
IMPORTANT ISSUE.
IF YOU'RE GOING TO TRY TO
CROSS-EXAMINE SOMEBODY, ABOUT
BEING STRANGLED DURING THE
COURSE OF A SEXUAL ACTIVITY,
ISN'T IT IMPORTANT WHETHER OR
NOT THERE'S ANY OTHER EVIDENCE
OF SEXUAL ACTIVITY?
>> WELL, I THINK WHAT THEY
TRIED TO BRING OUT WAS THE
EVIDENCE OF THE FACT THAT A
MIRROR HAD BEEN TAKEN DOWN OFF
THE WALL AND AWAS PUT NEXT TO
THE BED AND SO ON.
I MEAN THE THEORY I SUPPOSE
COULD BE WAS ALL THIS HAPPENED
BEFORE THE SEXUAL ACTIVITY
OCCURRED.
>> THAT IS CONSISTENT WITH I'M
GOING TO LET HER THINK WE'RE
ABOUT TO HAVE SOME SEXUAL
ACTIVITY AND ACTUALLY DOESN'T
TAKE PLACE.
>> I AGREE WITH YOU THAT THERE.

>> YOU ARE WELL INTO YOUR
REBUTTAL IF YOU'D LIKE TO SAVE
THE TIME YOU'VE GOT SIX
MINUTES.
>> NO IF THERE ARE NO FURTHER
QUESTIONS.
>> NO.
SAVE YOUR TIME.
>> THANK YOU.
>> GOOD MORNING, YOUR HONOR.
MAY IT PLEASE THE COURT.
I'LL CAROL DITTMAR.
FIRST WITH REGARD TO THE
SECURITY MEASURES I THINK IT'S
IMPORTANT TO LOOK AT THE TYPES
OF MEASURES IMPOSED AND TO
RECOGNIZE THAT ESPECIALLY IN
FEDERAL COURTS WHERE THERE IS A
LOT OF CASE LAW ON THIS ISSUE
BECAUSE THEY SEE A LOT OF THESE
REALLY BIG TRIALS, THE FEDERAL
COURTS HAVE MADE A CLEAR
DISTINCTION THE UNITED STATES
SUPREME COURT HAS MADE A CLEAR
DISTINCTION BETWEEN SECURITY
MEASURES THAT CREATE INHERENT
PREJUDICE TO THE DEFENSE AS
WELL AS BEING VISUALLY SHACKLED
OR HAVE AGSTUN BELT ASTUN BELT
VISIBLE TO THE JURY THOSE TYPES
OF ISSUES WHERE THEY SAY WHERE
THERE'S INHERENT PREJUDICE THEN
THE TRIAL COURT MUST MAKE
SPECIFIC FINDINGS OF NECESSITY.

>> DIDN'T HE IN FACT HAVE A
STUN GUN?
>> HE HAD A STUN GUN IS WHAT I
MEANT TO SAY.
HE DID HAVE A STUN BELT.
THE TRIAL COURT REPEATEDLY MADE
THE FINDING THAT IN NO WAS IT
VISIBLE TO THE JURY.
THE JURY COULD NOT HAVE
POSSIBLY SEEN THE STUN BELT.
SO IF THE JURY COULDN'T HAVE
SEEN IT IT COULDN'T BE
PREJUDICE IF THEY COULDN'T SEE
THE STUN BELT.
>> WHAT ABOUT THE ISSUE OF WHO
WAS REQUIRED TO SHOW A PHOTO
I.D.?
AND ISN'T SHOWING THE PHOTO
I.D. BECAUSE THAT WOULD LOSE
CERTAIN PEOPLE CONSTITUTE A
PARTIAL CLOSURE OF THE
COURTROOM?
IN SOME INSTANCES THIS HASN'T
REALLY BEEN PRESENTED AS A
CLOSURE OF THE CASE.
HE DID HAVE A PUBLIC TRIAL.
THERE WERE SPECIFIC INDIVIDUALS
THAT AS THE CASE WENT ON WERE
INCLUDED BECAUSE OF THE
SPECIFIC INCIDENTS HAPPENING IN
THE COURT SO THEY --
>> WHO WAS REQUIRED TO SHOW
PHOTO I.D.s.
>> I DON'T KNOW THAT THE RECORD
IS REALLY CLEAR ON WHO EXACTLY
-- AT WHAT POINT AND WHEN THEY
STARTED SHOWING THE
IDENTIFICATION.
AT ONE POINT LATER IN THE
TRIAL, THERE WAS AN INCIDENT
WHERE THE DEFENSE AGREED AND
THE STATE A{GRAE}ED AND THE
JUDGE DIRECTED THAT A CAMERA BE
PLACED OVER THE SECOND MAG SO
THAT THEY COULD GET CAMERA
PHOTOGRAPHS SO THEY COULD GET
THE FACES OF PEOPLE ENTERING
THE COURTROOM.
AND THAT WAS AGREED TO ON THE
RECORD AND THE JUDGE DIRECTED
THAT BUT THE JUDGE WAS
COMPLAINING OF SECURITY THINGS
GOING OFF AND ON DURING THE
TRIAL.
>> WASN'T THERE AN INCIDENT
WHERE SOMEONE SAID THAT ONE OF
THE PEOPLE THAT WERE LIKE THE
ENFORCERS FOR THIS GROUP --
>> YES.
>> WAS IN THE COURTROOM AND WAS
ASKING A QUESTION ABOUT BEING
THERE TO INTIMIDATE WITNESSES
OR SOMETHING.
>> ACTUALLY THERE WAS AN
INCIDENT THAT CAME UP AFTER ONE
OF THE INMATE WITNESS HAD
TESTIFIED AND THIS WAS ON A
THURSDAY AND THE WAY THIS TRIAL
WAS RUN EVERY FRIDAY PRETTY
MUCH THEY TOOK OFF SO THE
ATTORNEYS COULD CATCH UP WITH
WHAT THEY WERE DOING AND
PREPARING SO ON FRIDAYS THEY
DIDN'T HAVE COURT.
IT WASN'T UNTIL THE FOLLOWING
MONDAY WHEN THE RECORD STARTS
UP AGAIN THAT THERE A LENGTHY
DISCUSSION ON THE RECORD ABOUT
THIS INCIDENT THAT HAD TAKEN
PLACE WHERE ONE OF THE INMATE
WITNESSES SAID HE HAD LEFT THE
COURTROOM HAD NOTICED SOMEBODY
IN THE GALLERY AND THE, THE
SPECTATOR SECTION WHO HE
RECOGNIZED TO BE A HIRED KILLER
WHO WAS NOT ACTUALLY CONNECTED
WITH THIS CASE, WAS NOT CHARGED
IN THE ININDICTMENT, HIS NAME
DOESN'T COME UP AT ALL WITH
RELATION TO ANYTHING WITH THE
JOHN DOUGH ORGANIZATION.
BUT THAT INDIVIDUAL BECAUSE
THERE WERE TWO INMATES THAT
HAD, HAD COMPLAINED TO THE
STATE THAT THEY WERE VERY
INTIMIDATED ABOUT SEEING THIS
GUY.
AND THERE WAS ALSO, IT WAS ALSO
BROUGHT TO THE JUDGE'S
ATTENTION THAT THERE WERE
SPECTATORS IN THE COURTROOM
DISCUSSING THE FACT THAT THE
DEFENDANT AT ONE POINT HAD
LEANED BACK WHEN ONE OF THE
INMATE WITNESS WAS TESTIFYING
AND ACCORDING TO WHAT WAS
RELATED TO THE JUDGE WAS USING
HIS HAND POINTING AT LIKE A GUN
BEHIND HIS HEAD.
AND THE PERSON SITTING DIRECTLY
BEHIND HIM WAS THIS GENTLEMAN
THAT HAD BEEN IDENTIFIED AS
BEING, A HIRED KILLER.
AND WHAT WAS, YOU KNOW, WHAT
WAS PUT ON THE RECORD WAS THAT
BY THIS TIME, BY MONDAY
MORNING, THE STATE ATTORNEY'S
OFFICE HAD BEEN ABLE TO TO GET
WITH LAW ENFORCEMENT.
THEY HAD SPECIFICALLY
IDENTIFIED WHO THIS INDIVIDUAL
WAS AND THEY AGREED WITH THE
ASSESSMENT THAT HE DID HAVE A,
A TRACK RECORD OF AT LEAST
BEING SUSPECTED AS A HIRED
KILLER.
I DON'T KNOW IF HE HAD
CONVICTIONS OR WHAT EXACTLY HIS
RECORD WAS BUT THEY WERE
FAMILIAR WITH THAT BEING THE
ISSUE AND THIS WAS ONE OF THE
GENTLEMAN THAT WAS IDENTIFIED
AND WAS EXCLUDED.
>> SO THERE WAS NO GENERAL
PHOTO I.D. OF --
>> APPARENTLY AT ONE POINT THEY
WERE ASKING FOR IDENTIFICATIONS
OF PEOPLE COMING IN, AND WHEN I
SAY APPARENTLY, WHAT HAPPENED
WAS ONE OF THE PROSECUTORS CAME
IN AND SAID THEY WANTED THE
COURT TO BE AWARE THAT THERE
WERE A COUPLE OF {BINSS}S THAT
THE STATE -- WITNESSES THAT THE
STATE HAD WHO MIGHT NOT HAVE
STATE FURNISHED IDENTIFICATION
AND THAT'S WHEN IT'S MENTIONED
ON THE RECORD TO MAKE SURE --
>> I GUESS I -- WERE THE JURORS
BEING SUBJECTED TO PHOTO
SOMETHING ELSE?
OR IS THAT NOT ALSO ON THE
RECORD?
>> IT DOESN'T APPEAR THAT THE
JURORS WERE BEING REQUESTED TO
PROVIDE PHOTO IDENTIFICATION.
NOW THEY WERE BEING WANDED AND
THEIR POSSESSIONS WERE BEING
SEARCHED.
>>O GIVE A PICTURE FROM WHAT
THE RECORD SHOWS.
THEY GO IN THE BUILDING.
ARE THEY -- DO THEY GO THROUGH
AN INITIAL SCREENING
DOWNSTAIRS.
>> THAT'S MY IMPRESSION IS JUST
LIKE, JUST LIKE WITH THIS COURT
WANY COURT THAT YOU GO INTO
PRETTY MUCH IN THE STATE NOW
YOU ARE GOING TO, AS YOU ENTER
THE COURTROOM ORIGINALLY, YOU
ARE TO GO THROUGH SECURITY.
>> YOU MEAN INTO THE COURT
HOUSE?
>> INTO THE COURT HOUSE.
>> AND THEN THEY GO --.
>> UP ON THE 17th FLOOR.
>> BUT WHAT WAS THE THING THAT
THEY WERE MAGNETOMETER FOR THE
ENTIRE SIDE OF THE BUILDING AND
WAS THERE THEN A, FOR THAT SIDE
OF THE BUILDING, WAS THERE A
SECOND SCREENING IN OTHER
WORDS?
>> APPARENTLY ONCE THEY GOT UP
TO THE SECOND FLOOR WITH THIS
COURT, THIS PARTICULAR COURT
WAS UP ON THE 7th FLOOR.
ONCE THEY GOT UP ON THE 7th
FLOOR, THERE WAS A MAG IN THE
WAY THAT THE JUDGE DESCRIBES IT
IN THE RECORD, HE SAYS IT'S
HALF OF THIS FLOOR IS CORDONED
OFF FOR THIS SECOND MAG AND
THAT THERE IS ALSO INDIVIDUALS
GOING TO THE COURT
ADMINISTRATORS OFFICE.
>> I TAKE IT PEOPLE CAME UP THE
ESCALATOR THERE IN THE
BUILDING?
IS THAT REFLECTED?
>> YOU KNOW, I KNOW THE
APPELLATE BRIEF SAYS SOMETHING
ABOUT THE ESCALLATOR.
I KNOW MS.^POOLSER MORE
FAMILIAR WITH THE COURTHOUSE
THAN I AM SO I DON'T KNOW IF
THE ELEVATORS, THE ESCALATORS
OR HOW THEY WOULD GET UP THERE.

>> THAT WOULD BE THE NORMAL WAY
TO GET UP AND THEN THERE ARE
TWO COURTROOMS ON THE FLOOR.
>> YES, IT WAS ALSO A
COURTROOM, ANOTHER COURTROOM ON
THE SAME FLOOR.
>> SO WHAT WOULD THE -- THERE
WAS ALSO CONSTRUCTION,
CONSTRUCTION ON THAT FLOOR
GOING ON AS THEY TALK ABOUT
THROUGHOUT THE THING.
SO THERE MAY BE HAVE, THE POINT
IS THAT THIS WAS NOT CUSTOMIZED
FOR THIS TRIAL.
>> IS THAT WHAT YOUR POINT IS?

>> WELL I ACTUALLY DON'T KNOW
IF IT WAS OR WASN'T.
>> OKAY.
>> THE RECORD DOESN'T SHOW
THAT.
>> THE RECORD DOESN'T SHOW
THAT.
WHAT IS THE ISSUE ABOUT -- WERE
PEOPLE WANDED IN FRONT OF THE
JURY?
WHAT'S THAT ABOUT?
>> I THINK EVERYBODY THAT WAS
COMING IN WAS WANDED IN
ADDITION TO BEING, JUST --
>> AS THEY CAME INTO THE
SECOND.
JUST AS THEY ARE COME NOTHING
TO THE COURTROOM.
>> NOT THE JUDGE --
>> I THINK IT IS PART OF THE
SECOND MAG THAT IT IS PART OF
THE ENTRANCE.
>> BEFORE THEY ENTER THE
COURTROOM.
>> NOW LET ME ASK YOU A
QUESTION.
DID DEFENSE COUNCIL COUNSEL
EVER REQUEST A HEARING TO
DISCUSS ALL OF THE SECURITY
MEASURES?
>> I MEAN IT'S TYPICAL
PARTICULARLY IN A HIGH PROFILE
CASE AND I THINK GOOD PRUDENT
BEST PRACTICE FOR THE JUDGE TO
SIT DOWN WITH BOTH COUNSEL IF
IT'S A TYPICAL PROCEDURES TO
LET THEM KNOW WHAT'S GOING ON
WITHOUT COMPROMISING SECURITY.

WHAT HAPPENED HERE?
>> THERE WERE SEVERAL TIMES IT
WAS MENTIONED DURING JURY
SELECTION WHEN THE SECOND MAG
WAS SET UP, THE DEFENSE
MENTIONED THE COURT IN THE FACT
THAT EVERYBODY, THE DEFENSE
ATTORNEYS WERE HAVING TO GO
THROUGH THE MAG AND THE JURORS
AND THE COURT AT THAT POINT
SAID WELL YOU KNOW THAT'S
REALLY SOMETHING YOU CAN TAKE
UP WITH COURT LIAISON BECAUSE
THEIR PUTTING THOSE THINGS IN
PLACE.
THERE WAS NOT A REQUEST AT THAT
TIME.
FOR A SPECIFIC INQUIRY OR
FINDINGS.
THAT WAS MENTIONED WHEN JULIAN
MITCHELL WAS CALLED, THE EARLY
WITNESS CALLED WHEN HE WAS
CALLED IN TO TESTIFY HE ENTERED
COURT AND HE WAS AN INMATE AT
THE TIME AT THE DADE COUNTY
JAIL.
HE HAD ON THE RED INMATE JUMP
SUIT HE WAS SHACKLED HE WASESH
ESTCORTED IN WITH ARMED GUARDS.

SAID INDEFENSE OBJECTED AT THAT
POINT AND SAID YOU KNOW WE
OBJECT TO THIS -- ALL THE
THEATRICS AND PARADE OF
BRINGING THIS MAN IN AND YOU
KNOW IT LOOKS BAD FOR MY CLIENT
THE JURY'S GOING TO THINK.
HIS PRESUMPTION OF INNOCENCE IS
ON.
THE DEFENSE COUNCIL SAID I
THINK WE SHOULD HAVE A HEARING
AS TO WHY THESE SECURITY
MEASURES ARE BEING TAKEN.
PEOPLE ARE BEING WANDED.
BELONGINGS ARE BEING SEARCHED
AND I THINK WE NEED TO TAKE
EVIDENCE.
THE COURT SAID OKAY --
>> HOW FAR INTO THE TRIAL WERE
WE?
>> JULIAN MITCHELL WAS AN EARLY
WITNESS --
>> BUT THE JURY HAD ALREADY
BEEN SELECTED, OPENING
STATEMENTS HAD ALREADY BEEN
MADE AND WITNESSES HAD BEEN
PRESENTED.
>> YES AND HE WASN'T THE FIRST
WITNESS.
THIS IS VOLSUME 37 IN THE
TRIAL.
AND AT THAT POINT, THE TRIAL
JUDGE SAID WHEN WE TAKE THE
NEXT BREAK, WHEN WE TAKE THE
LUNCH BREAK WE WILL ADDRESS
THIS AND HAVING A HEARING.
COREY SMITH DIRECTING THE
MURDERS OCCUR EVEN WHILE COREY
SMITH WAS IN JAIL FOR DOMINIC
JOHNSON MURDER.
HE GOT RELIEVED OF THE JOHNSON
TRIAL WHEN CYNTHIA BROWN WAS
KILLED AND THAT HIT WAS
DIRECTED AND THAT WAS THE
TESTIMONY THE JURY HEARD WHICH
SERVED AS THE EVIDENTIARY
HEARING BECAUSE AFTER THAT THE
COURT DOES GO BACK ON THE
RECORD AND SAYS YOU KNOW I CAN
MAKE FINDINGS NOW I'VE HEARD
THIS TESTIMONY ABOUT THE
DANGERS AND THE MAN WAS
INTERFERING WITH JUSTICE AND
PUTTING {OIT} THIS -- OUT THIS
INFORMATION AND I THINK THAT
SATISFIED WHAT THE COURT NEEDED
TO HEAR AND AGAIN WITH THESE
TYPES OF MEASURES WITH FEDERAL
LAW YOU DON'T HAVE TO HAVE THE
FINDINGS OF NECESSITY THAT YOU
DO WHEN YOU HAVE INHERENTLY
PREJUDICIAL MATTERS.
SO WE DO HAVE THE JUDGE HEARING
TESTIMONY.
BUT THE SWORN TESTIMONY HE HAD
JUST HEARD.
AND I AM SATISFIED THE MEASURES
ARE NECESSARY.
MAKING FINDINGS.
THERE ARE AFTER THAT THAT IS
BEFORE THE WHOLE INCIDENT WITH
THE FINGER AND THERE WERE
SEVERAL OTHER TIMES WHEN THE
PARTIES APPROACHED THE COURT TO
PUT ON THE RECORD THAT
PERSONNEL FROM THE STATE
ATTORNEY'S OFFICE HAD BEEN
THREATENED.
THERE WERE OTHER, OTHER FAMILY
MEMBERS FROM THE VICTIMS THAT
WERE THREATENED AND THOSE ARE
COMMENTS MADE THROUGHOUT THE
TRIAL THAT ARE PUT ON THE
RECORD.
THOSE ARE ALL AFTER THE FACT.
AND THERE REALLY, AT ONE POINT,
THE ONLY OTHER TIME THAT THERE
IS EVEN A SUGGESTION THAT THE
JUDGE NEEDED TO TAKE EVIDENCE
WAS WHEN THE, THE INCIDENT CAME
UP ABOUT THE FINGER POINTING
LOOKING LIKE A GUN.
AND THE DEFENSE CHALLENGED THE
DEFENDANT CHALLENGED THAT
PERSONALLY AND SAID I WANT TO
KNOW WHO'S SAYING THAT.
ALL I WAS DOING WAS SCRATCHING
MY HEAD.
I WASN'T DOING THAT.
FEDERAL COURTHOUSES ARE MORE
SECURE THAN STATE COURTHOUSES.

IT'S NORMATIVE THAT THERE ARE
ALTERNATIVE ENTRANCES FOR STATE
ATTORNEY, PD, AND OTHER JUDGES
TO GET ACCESS TO THE COURT
WHICH WOULD PROVIDE A MEANS TO
NECESSITY THE SECOND MAGNOMETER
IN THESE OTHER PROCEDURES.
IS THAT THE ONLY RECORD IN THIS
CASE.
I KNOW THERE WERE ALTERNATIVE
WAYS, THE JUDGE IN THIS POINTS
THAT THERE WAS A TIME OUT IN
THE HALLWAY WHEN THE JURY
OBSERVED THE DEFENDANT VISIBLY
HANDCUFFED BECAUSE HE WAS BEING
TRANSPORTED THROUGH THE HALLS
AND THAT CAME TO THE JUDGE'S
ATTENTION AND THE JUDGE
IMMEDIATELY WAS VERY CONCERNED
ABOUT THAT, TOOK IMMEDIATE
ACTION TO ENSURE AND HE TALKED
TO EVERYBODY ABOUT WELL WE ARE
GOING TO TAKE PEOPLE OUT THIS
WAY AND GO OUT THAT WAY.
>> SOME COURTHOUSES DON'T HAVE
SEPARATION BETWEEN PARTIES AND
LITIGANTS AND PUBLIC AND
WHATEVER S. THAT THE CASE HERE?

>> I'M NOT SURE FROM THIS
RECORD.
>> THE OLDER COURTHOUSES
DIDN'T, DID NOT SEPARATE AS
THEY DO NOW.
>> THAT ISN'T CLEAR.
MADE CLEAR REALLY IN THE
DISCUSSIONS THAT TOOK PLACE
HERE ABOUT THE, THE SECURITY
MEASURES.
BUT CLEARLY NONE OF THE, NONE
OF THE MEASURES THAT WERE PUT
IN PLACE CAN REALLY REFLECT
NEGATIVELY ON THE DEFENDANT
BECAUSE THEY'RE NOT INHERENTLY
PREJUDICE.
THEY'RE, A NUMBER OF CASES
WHERE FEDERAL COURTS IN FACT
TAKE MUCH MORE DRASTIC MEASURES
BUT THIS JUDGE WAS VERY
CONCERNED HE WANTED TO ENSURE
THAT THE PUBLIC TRIAL HE AT
TIMES ASKED THE PARTIES TO
RESEARCH WHAT ARE MY OPTIONS IN
CLOSING?
CAN I LIMIT THE PEOPLE THAT ARE
COMING IN?
WHAT CAN WE DO ABOUT IT?
SO IT WAS AN ISSUE THAT KEPT
RECURRING THROUGHOUT THE TRIAL
AND I THINK THE JUDGE DID MAKE
A DETERMINED EFFORT TO TRY AND
BALANCE ALL OF THE INTERESTS OF
EVERY PARTY AND TRIED TO ENSURE
THAT THE DEFENDANT WAS NOT
DEPRIVED OF A FAIR TRIAL IN
BUTTING THESE MEASURES INN INTO
PLACE AND CERTAINLY DID NOT NO
MORE THAN WAS NER {SAES}.
>> CAN YOU ADDRESS THE ISSUE
THAT I HAD BROUGHT UP.
>> CERTAINLY.
CARLOS WALKER?
>> YES.
IS THERE, HE HAD TESTIFIED IN
THE DEPOSITION THAT MR.^SMITH
WAS NOT INVOLVED IN THIS
MURDER, CORRECT.
>> WELL, WHAT HE HAD TESTIFIED
IN HIS DEPOSITION WAS WITH
REGARD TO STATEMENTS THAT HE
WAS AWARE THAT COREY SMITH HAD
MADE REGARDING THE CYNTHIA
BROWN MURDER.
AND IN THIS DEPOSITION, HE
DENIED KNOWLEDGE OF THOSE
STATEMENTS.
>> ALL RIGHT.
AND THAT WAS UNDER OATH.
>> THAT WAS UNDER OATH, YES.
>> AND NOW HE COMES TO TESTIFY.

>> WELL, ACTUALLY BEFORE, I'M
SORRY TO INTERRUPT YOU, BUT IT
IS IMPORTANT TO REMEMBER THAT
BEFORE THAT DEPOSITION, OF
COURSE, HE HAD GIVEN A NUMBER
OF SWORN STATEMENTS WHICH DID
IMPLICATE COREY SMITH.
>> RIGHT.
>> AND HE ALSO,.
>> IN HIS DEPOSITION.
>> RIGHT.
>> THAT'S CORRECT.
>> HE NOW COMES TO TRIAL TO
TESTIFY AND IS IT STATE AWARE
BEFORE THEY PUT HIM ON THE
STAND THAT HE WAS GOING TO
TESTIFY INCONSISTENTLY WITH HIS
DEPOSITION?
THAT HE HAD NOW REAFFIRMED HIS
INITIAL SWORN STATEMENT?
>> THAT QUESTION WAS NEVER
ASKED BELOW SO THAT'S NOT
REALLY DEVELOPED IN THIS RECORD
EITHER.
WHAT HAPPENED IS HE, HE IS
CALLED TO TESTIFY ON DIRECT
EXAMINE.
HE PROVIDES ALL THE TESTIMONY
THAT HE PROVIDES ON DIRECT
EXAM.
PART OF WHICH IS SAYING HE
RECALLS NOW AND I CAN THIS IS
THE MOST DAMAGING THING FROM
THIS PARTICULAR WITNESS,
OBVIOUSLY MUCH OF WHAT HE SAID
WAS CUMULATIVE TO OTHER
WITNESSES.
BUT HE SAYS THAT HE HEARD COREY
SMITH DIRECT {CHAS} DAVIS, WHO
WAS THE BOYFRIEND OF CYNTHIA,
CYNTHIA BROWN THAT KILLED
CYNTHIA BROWN DAVIS DIRECTED
DAVE {TOOS} KILL HER BY
SMOTHERING HER OR STRANGLING
HER WITHOUT BULLETS WITHOUT A
GUN.
THAT STATEMENT.
>> I ASKED YOU DID THE STATE
KNOW ABOUT THE CHANGE IN
TESTIMONY.
I WOULD IMAGINE, AND I THINK
IT'S DEVELOPED THAT THE STATE
WASN'T ABOUT TO PUT ON THIS
WITNESS WITHOUT KNOWING WHAT
HIS CURRENT TESTIMONY IS?
>> WELL, I THINK THAT THE
STATE.
WHENEVER YOU HAVE AN INMATE
WITNESS WHO HAS MADE
INCONSISTENT STATEMENTS PRIOR
TO TRIAL, I'M NOT SURE THE
STATE EVER REALLY HAS A GREAT
DEAL OF CONFIDENCE --
>> SO YOU ARE SAYING IF WE LOOK
AT THIS RECORD WE DON'T KNOW AT
THIS POINT WHETHER THIS
ASSISTANT STATE ATTORNEY, THIS
PROSECUTOR THAT'S PROSECUTING
THIS SEVERAL-MONTH MURDER CASE
WITH SEVERAL MURDERS.
DIDN'T KNOW -- DIDN'T PUT
CARLOS WALKER ON DIDN'T KNOW
WHETHER HE WAS GOING TO TESTIFY
CONSISTENTLY WITH HIS
DEPOSITION OR GO BACK TO HIS
SWORN STATEMENT?
>> WELL, CARLOS WALKER HAD A
LOT OF INFORMATION ABOUT A LOT
OF CRIMES OTHER THAN THIS ONE
STATEMENT.
AND HIS DEPOSITION HE HAD
TALKED ALL ABOUT THE DRUG HE
HAD BEEN PART OF JOHN DOUGH.
HE KNEW ABOUT THE DRUGS AND HOW
THEY WERE SOLD SO HE HAD A LOT
OF INFORMATION BEYOND JUST THIS
ONE STATEMENT.
>> ALL RIGHT.
SO IT'S NOT -- HE STARTS TO
TALK ABOUT THIS.
THE.
THE DEFENSE ATTORNEY DOESN'T
{OJT}.
>> DOES NOT OBJECT.
>> WHAT HAPPENS?
>> WHAT HAPPENS IS HE GIVES THE
INCRIMINATING TESTIMONY.
WHEN HE, IT'S TIME FOR CROSS
EXAMINATION, THE DEFENSE
COUNSEL GETS UP ON
CROSS-EXAMINATION, ACTUALLY
ASKED TO APPROACH THE BENCH AND
{TAMENT} REQUESTED A MISTRIAL
AND SAYS, JUDGE, I'M MAKE
AGMOTION FOR MISTRIAL BECAUSE
WHAT, WHAT THE JURY HAS NOW
HEARD THIS MAN IS A PERJURE.
HE ADMITS BEING A PERJURE.
HE'S MADE INCONSISTENT
STATEMENTS UNDER OATH HE'S HERE
TODAY SAYING SOMETHING THAT HE
DENIED IN HIS DEPOSITION.
IN HIS SWORN DEPOSITION AND THE
JUDGE SAYS THAT'S WHY WE HAVE
IMPEACHMENT YOU HAVE HIS SWORN
DEPOSITION YOU CAN BRING THAT
OUT TO THE JURY.
THAT'S NOT A BASIS FOR
MISTRIAL.
SO THAT WAS THE ARGUMENT
PRESENTBED LOW IT WAS REALLY
MORE LIKE A DUE PROCESS
ALREADY.
>> NOT {ZPRG} RICHARDSON.
>> DID NOT ASK FOR RICHARDSON.

>> NOT SAYING THAT WE'RE, THAT
THIS IS THE STATE KNEW ABOUT
THIS AND DIDN'T DISCLOSE IT.
THAT'S NOT --
>> WELL THEY MAKE THE COMMENT.

THE CLOSEST THEY GET IS THEY
MAKE THE COMMENT ABOUT WE
SHOULD'VE -- WE SHOULD'VE BEEN
NOTIFIED.
THEY DO SAY WE SHOULD'VE BEEN
NOTIFIED THAT THEY WERE GOING
TO PRESENT A PERJURE.
BUT OBVIOUSLY THEY HAD --
>> WOULD YOU AGREE, MS.^DITTMAR
BECAUSE THIS IS ONE ISSUE AND
AGAIN I THINK YOU'RE, THE
APPELLATE COUNSEL SORT OF SAYS
IT REALLY WASN'T SUCH A BIG
DEAL.
TO ME THESE ARE -- FROM A POINT
OF VIEW OF WHAT THE STATE DOES
THAT THE STATE IF THEY KNOW
BEFORE SOMEONE PUTS ON THE
STAND THAT THEY ARE NOW GOING
TO SWITCH THEIR TESTIMONY
AGAIN, DON'T THEY HAVE A
CONTINUING OBLIGATION TO LET IF
THE DEFINITION'S BEEN TAKEN TO
ADVISE THE DEFENSE --
>> I THINK IF THEY HAVE THAT, I
THINK THE PROBLEM IS WHEN YOU
HAVE AN INMATE WITNESS WHO HAS
MADE A NUMBER OF INCONSISTENT
STATEMENTS PRIOR TO TRIAL,
CERTAINLY YOU ARE HOPEFUL THAT
YOU ARE GOING TO PUT THAT
WITNESS ON AND HE'S GOING TO
TELL THE TRUTH BUT THAT WITNESS
--
>> CAN YOU EXPLAIN -- I AM
TRYING TO UNDERSTAND THE
CONTEXT IN WHICH HE TESTIFIED
ABOUT THIS.
WHAT DID THE STATE ASK THAT
PRECIPITATED THIS TESTIMONY
ABOUT THE JOHNSON CASE THAT
THE?
DID THE STATE ASK -- YOU SAY HE
KNEW A LOT OF THINGS ABOUT LOT
OF CRIMES AND TESTIFIED ABOUT
THOSE.
>> YES BUT THE STATE ALSO.
>> DEDID HE TESTIFY ABOUT ALL
THOSE AND THEN THE STATE SAID
WHAT DO YOU KNOW ABOUT THE
JOHNSON CASE EXPECTING HE'S
GOING TO SAY I DON'T KNOW
ANYTHING AND THEN HE BLURTED
OUT AND SAY WELL I HEARD THIS
CONVERSATION.
>> WELL, I THINK THE STATE WAS
HOPEFUL THAT HE WOULD GET UP
AND RELATE UNDER OATH AND BE
CONSISTENT WITH THE PRETRIAL
STATEMENTS HE HAD GIVEN TO THE
POLICE IMPLICATING COREY SMITH
AND IN CYNTHIA BROWN'S MURDER
BECAUSE HE HAD MADE THESE
STATEMENTS PREVIOUS TO HIS
DEPOSITION SNOOT & DOWNSIDE
WOULD BE HE WOULD SAY I DON'T
KNOW ANYTHING ABOUT THAT CASE.

>> AND I THINK THE STATE WAS
CERTAINLY HOPEFUL AND HE HAD A
PLEA AGREEMENT THAT HE WAS TO
TESTIFY TRUTHFULLY AT THIS
TRIAL --
>> WAS THERE ANY EVIDENCE THAT
ANYBODY ON BEHALF OF THE STATE
SPOKE WITH CARLOS WALKER
BETWEEN THE TIME OF HIS
DEPOSITION AND THE TIME THAT HE
TOOK THE STAND.
>> NO, THERE IS NO EVIDENCE OF
THAT.
>> WELL, IN THE COLLOQUY THAT
OCCURRED ABOUT THE MISTRIAL AND
THEY HAD AN OBLIGATION TO SAY
DID THE PROSECUTOR SAY I'M AS
SURPRISED AS DEFENSE COUNSEL?
>> 93, THE PROSCOURT -- REALLY
I MEAN THAT WASN'T WHAT WAS
BEING ASKED REALLY.
THE PROSECUTOR -- WHAT WAS
BEING ASKED, WAS JUDGE WE NEED
A MISTRIAL BECAUSE THE STATE
HAS PUT ON A WINS WHO {CBHIT}ED
PERJURY.
SO IT WAS, IT WAS MORE OF A DUE
PROCESS ARGUMENT IT USED TO BE
THAT YOU COULD NOT PRESENT
TESTIMONY FROM A WITNESS WHO
HAD A CONVICTION FOR PERJURY
AND I THINK THAT'S THAT SEEMS
TO BE THE OBJECTION THAT WAS
MADE TO THE TRIAL COURT.
>> THE NONDISCLOSURE IT LOOKS
LIKE THE BOTTOM LINE ON THE
PREJUDICE IS AN ISSUE OF WAS
THERE PROCEDURAL {PRERJS}.
>> THE PROCEDURE --
>> WAS THAT ADDRESS?
AND DID IT GO INTO THAT?
SO NO MATTER WHAT HAPPENED, THE
BOTTOM LINE WON'T HAVE TO COME
OUT IF IT DID AND IF IT WAS
INCORRECT OR ERROR, THE
QUESTION THEN BECOMES THE
PROCEDURAL {PRERJS} AS I READ
OUR CASES.
>> RIGHT.
>> SO WAS THAT THEN DISCUSSED
HOW THIS MAY HAVE CHANGED THE
DEFENSE APPROACH OR ANYTHING AT
ALL LIKE THAT.
>> THERE WAS NOTHING LIKE THAT
DISCUSSED HOWEVER IT WAS CLEAR
FROM THE RECORD THAT THE
DEFENSE WAS WELL PREPARED TO
IMPEACH AND TO CROSS-EXAMINE
THIS WITNESS.
THEY CERTAINLY HAD HIS
DEPOSITION.
THEY HAD HIS PRETRIAL
STATEMENTS THEY ASKED HIM ABOUT
HIS CHANGE IN STATEMENT SO THEY
EXPLORED THAT THEY HAVEN'T
IDENTIFIED ANY PRETRIAL
PREJUDICE ANYTHING THEY
WOULD'VE DONE DIFFERENTLY HAD
THEY KNOWN HE HAD CHANGE SAID
HIS MIND.
>> THE BOTTOM LINE IS THERE WAS
NO.
THAT WAS NOT THE FOCUS OF WHAT,
WHAT THE OBJECTION WAS.
>> THAT'S CORRECT.
IT WAS NOT THE FOLK {SNOOS} IT
WAS A -- FOCUS.
>> IT WAS NOT A FOCUS.
>> I THINK THE ARGUMENT OPEN
APPEAL IS FROM THE SIPPIO CASE
WELL THIS RUNS CLOSE TO THAT
BUT IT WAS REALLY FACTUALLY
VERY DIFFERENT BECAUSE IN
SIPPIO YOU DIDN'T HAVE THE
INCONSISTENT STATEMENTS AT
TRIAL.
YOU DIDN'T HAVE THE INITIAL
STATEMENT WHERE HE IS GIVING
THE PREJUDICEAL TESTIMONY WHICH
THE DEFENSE HERE WAS CLEARLY
AWARE OF.
>> THE ONLY REASON AGAIN AND
YOU KNOW WHEN WE DECIDE WHETHER
WHEN WE HAVE THIS KIND OF CASE
WE KNOW THERE'S GOING TO BE
POST CONVICTION AREN'T WE
BETTER OFF SAYING WHATEVER HAP
{NS} THEREUNDER'S NO PROCEDURAL
PREJUDICE.
>> CERTAINLY.
>> AND JUST TAKE CARE OF IT
THAT WAY.
>> CERTAINLY.
I MEAN I THINK THAT'S THE
BOTTOM LINE AND I THINK THAT'S