John Marek v. State of Florida

SC09-1080

>> PLEASE RISE.
HEAR YE, HEAR YE, HEAR YE.
THE SUPREME COURT OF FLORIDA IS
NOW IN SESSION.
ALL WHO HAVE CAUSE TO PLEA, DRAW
NEAR.
GIVE ATTENTION AND YOU SHALL BE
HEARD.
GOD SAVE THIS UNITED STATES,
THIS GREAT STATE OF FLORIDA AND
THIS HONORABLE COURT.
LADIES AND GENTLEMEN, THE
FLORIDA SUPREME COMFORT PLEASE
BE SEATED.
>> GOOD MORNING AND WELCOME TO
THIS SESSION OF THE FLORIDA
SUPREME COURT.
THE ONLY CASE ON THE COURT'S
DOCKET THIS MORNING IS MAREK
VERSUS STATE, ARE THE PARTIES
READY TO PROCEED?
MR. McCLAIN.
>> THANK YOU, PLEASE THE
COURT... [INAUDIBLE].
>> PLEASE TALK INTO THE MIC.
>> SORRY.
USUALLY HAVE -- MY VOICE IS NOT
A PROBLEM IN TERMS OF MILDNESS.
THIS IS A APPEAL FROM THE DENIAL
OF A -- 38TH DISTRICT MOTION, I
WILL FOCUS MY ARGUMENT ON THE
NEWLY DISCOVERED EVIDENCE CLAIM
WHICH IS THIS FIRST ONE
ADDRESSED IN THE BRIEF AND IF
THERE ARE ANY QUESTIONS ABOUT
ANYTHING ELSE, CERTAINLY I AM
WILLING TO ANSWER THEM.
AT THE EVIDENTIARY HEARING THAT
OCCURRED ON JUNE 1ST AND 2ND
THERE WERE SIX WITNESSES, WHO --
NEWLY DISCOVERED WITNESSES
PRESENTED AND OF THOSE, ONE OF
WHICH LEON DOUGLAS, THERE ARE
ISSUES ABOUT AND THE REMAINING
FIVE, THOSE FIVE WITNESSES, I
SUBMIT, REQUIRE AT THE VERY
LEAST, PENALTY PHASE RELIEF.
AND LET ME EXPLAIN WHY.
FIRST, THE JUDGE IN DENYING HIS
FIRST GROUND FOR DENYING RES
JUDICATA AND THE WITNESSES DID
NOT TESTIFY AT ANY PREVIOUS
PROCEEDINGS AND I SUBMIT THAT
THAT WAS WRONG ANALYSIS TO HAVE
RES JUDICATA AND IN TERMS OF THE
QUESTION OF DILIGENCE, THE
TESTIMONY PRESENTED WAS IN 2001,
WHEN MR. WIGLEY WAS MURDERED, IN
PRISON, THERE WAS AN EFFORT MADE
TO MAKE UP A LIST OF PEOPLE IN
PRISON AND OUT OF PRISON, WHO
WIGLEY MAY HAVE CONFIDED IN,
JUST TO SEE IF THERE WAS ANYBODY
OUT THERE AND --
>> AND THIS WAS DONE WHEN.
>> 2001.
IT WAS AT THE TIME OF THE -- THE
COURT DECIDED TO TAKE THE --
WHERE THE COURT RECOGNIZED,
NEWLY DISCOVERED EVIDENCE
WARRANTED A -- ACTUALLY PENALTY
PHASE RELIEF FOR MR. MILLS WHICH
ULTIMATELY LED TO A LIFE
SENTENCE AN ON THE BASIS OF A
STATEMENT MR. MILLS MADE WHILE
INCARCERATED IN JAIL, A, WAIT --
AWAITING MR. MILLS' TRIAL FOR
THE CODEFENDANT, ANDERSON ASH
LIMIT AND SO IT WAS A SHOT IN
THE DARK TO CHECK AND SEE IF
THERE WAS ANYTHING OUT THERE AND
ALL OF THE PEOPLE THAT WERE
TALKED TO HAD NO INFORMATION,
AND TWO INDIVIDUALS WHOSE NAMES
WERE ON THE LIST BECOME
SIGNIFICANT BECAUSE THEY ARE
WITNESSES NOW AND ONE OF THE
INDIVIDUALS, ROBERT PEARSON, AND
ROBERT PEARSON, WHO DID TESTIFY
ON JUNE 1ST, WAS ON THE LIST IN
2001, HE WAS CONTACTED IN 2001,
AND AT THAT TIME, INDICATED HE
DID NOT WANTED TO TALK, DID NOT
WANTED TO GET INVOLVED, BOTH
MS. MCDERMOTT TESTIFIED
REGARDING THAT AND MR. PEARSON
TESTIFIED, HE REFUSED TO GET
INVOLVED AND THE OTHER PERSON'S
NAME ON THE LIST WAS MICHAEL
CONLEY AND THERE WAS BE A EFFORT
MADE TO LOCATE HIM AND DOC
RECORDS INDICATED HE WAS GOOD
FRIENDS WITH MR. WIGLEY AND HE
WAS RELEASED FROM PRISON AND
EFFORTS WERE MADE TO CONTACT HIM
AND THERE WAS A LEAD TO SOMEBODY
IN BROWARD COUNTY AND TURNS OUT
ACCORDING TO MR. CONWAY IT WAS A
FAMILY MEMBER OF HIS AND HE HAD
GONE THROUGH A DIVORCE, HE WAS
CONCERNED ABOUT HIS WIFE, OR
PEOPLE ON BEHALF OF HIS WIFE,
CONTACTING HIM, HIS FAMILY
MEMBER INDICATED TO MR. CONLEY
THAT HE'S GIVING THAT
INFORMATION AND BASICALLY SHUT
IT DOWN AND IN FACT,
MS. MCDERMOTT TESTIFIED TO, AS
THE INVESTIGATOR, WENT OUT AN
ATTEMPTED TO CONTACT HIM AND RAN
INTO THE BROTHER IN BROWARD
COUNTY AND HAS NOT BEEN ABLE TO
LOCATE HIM.
AS TO THE OTHER INDIVIDUALS, WHO
TESTIFIED, IN 2009, THEY WERE
NOT KNOWN, THEY DIDN'T GET ON
THE LIST, AGAIN, THE LIST IN
2001, WAS BASICALLY A SHOT IN
THE DARK, HAIL MARY PASS KIND OF
THING.
>> I -- SINCE YOUR TIME IS
LIMITED, LET'S ASSUME WE AGREE
WITH YOU THAT DUE DILIGENCE
WAS... AND YOU HAVE NOW FOCUSED
ON THE PENALTY PHASE.
>> YES.
>> WHAT DO YOU THINK THAT THIS
EVIDENCE IS ADMISSIBLE IN THE
PENALTY PHASE, HEARSAY...
[INAUDIBLE] A DIFFERENT STORY.
WHAT -- HOW WOULD THAT PROBABLY
PRODUCE A LIFE SENTENCE, BECAUSE
THAT IS REALLY THE TEST, FOR
NEWLY DISCOVERED EVIDENCE IS,
WOULD IT PROBABLY PRODUCE A LESS
SENTENCE.
>> WELL, FIRST, ONE PLACE TO
LOOK IS MR. MOLDOF WHO TESTIFIED
JUNE 2ND AND HOW THE STATEMENTS
IMPACTED HIM AND WHAT HE WOULD
HAVE DONE IN TERMS OF THE
PENALTY PHASE AND IN 1984, ONE
OF THE ISSUES THAT HAPPENED WAS
IN REFERENCE TO HIS DECISION NOT
TO PRESENTS THE LIFE SENTENCE
MR. WIGLEY RECEIVED AND THE TIME
IN 1984 HE EXPLAINED IT WAS
BECAUSE THE JUDGE WOULD ALLOW
THE STATE TO BRING OUT THE FACT
THAT WIGLEY HAD MADE A STATEMENT
TO THE POLICE IN WHICH WIGLEY
PUT ALL OF THE BLAME ON
MR. MAREK.
>> YOU AGREE IF THIS EVIDENCE
WERE TO COME IN, AND -- IN AT
LEAST THE PENALTY PHASE,
WIGLEY'S CONFESSION WOULD --
>> YES.
AND MR. MOLDOF, HAD NO PROBLEM
WITH THAT AND WOULD HAVE
PRESENTED THIS AND HE THOUGHT
THAT A STATEMENT AFTER THE CRIME
TO THE POLICE, WAS, HE CERTAINLY
WOULD ARGUE, WOULD BE
SELF-SERVING VERSUS CONSISTENT
STATEMENTS MADE TO INDIVIDUALS
HE WAS INCARCERATED WITH, AND,
HE WOULD HAVE NO PROBLEM
PURSUING THAT.
>> I GUESS -- YOU ARE SAYING,
WELL, THE LAWYER WOULD ACT
DIFFERENTLY.
BUT, IN TERMS OF THE AGGRAVATOR
AND THE MITIGATOR, I UNDERSTAND
WE CAN LOOK AT WHETHER YOUR
CULPABLE DEFT RECEIVED A LIFE
SENTENCE, IT JUST DOESN'T LOOK
LIKE THAT SITUATION.
WHAT COULD A JURY -- WHAT
MITIGATOR WOULD THIS GO THROUGH
OR WHAT AGGRAVATOR, WOULD IT
CHANGE?
Y -- YOU SEE, I UNDERSTAND YOU
HAVE PRESENTED INTERESTING
TESTIMONY BUT WHERE WOULD IT FIT
IN IN A NEW PENALTY PHASE AND
GIVE ME YOUR BEST SHOT, IT
WOULDN'T CHANGE THE AGGRAVATORS
AND WHAT MITIGATORS WOULD IT GO
TO.
>> FIRST OF ALL, IT WOULD HAVE
LED MR. MOLDOF TO PRESENT THE
LIFE SENTENCE, WHICH WAS NOT
PRESENTED BEFORE AND THAT HAS
BEEN RECOGNIZED, A LIFE
SENTENCE, AS A MITIGATING
CIRCUMSTANCE AND, SECOND, IT
WOULD HAVE GONE TO REDUCE
MR. MAREK'S ROLE, IN THE COURT,
ON DIRECT APPEAL FOUND THAT HE
WAS THE DOMINANT INDIVIDUAL.
THIS WOULD HAVE GONE TO NEGATE
THAT.
>> IF WE -- I'M SORRY. .
>> YOU DO RECOGNIZE THAT NOT
ONLY WAS THE DEFENSE COUNSEL...
HAVE BEEN CHANGED AND THE STATE
WOULD HAVE DONE THINGS
DIFFERENTLY THAN THEY WOULD HAVE
AND WOULD HAVE BEEN ABLE TO
BRING IN THINGS LIKE THE
CONFESSION AND PSYCHOLOGICAL
INFORMATION, THAT INDICATED THAT
MR. WIGLEY WAS A FOLLOWER, NOT A
LEADER.
AND THINGS THAT WOULD TEND TO
UNDERMINE THIS NEWLY DISCOVERED
EVIDENCE, ISN'T THAT CORRECT.
>> MR. MOLDOF TESTIFIED AS TO
THE MENTAL HEALTH EVALUATIONS,
MENTAL HEALTH EVALUATIONS WERE
DONE SOLELY ON SELF-REPORTING OF
MR. WIGLEY AND THERE IS FIRST A
QUESTION OF WHAT ONES WOULD HAVE
BEEN ADMISSIBLE AND SECOND, THE
EXPERTS DIDN'T HAVE THESE
STATEMENTS MADE IN PRISON.
WHICH SUGGESTS THAT MR. WIGLEY
WAS IN FACT NOT A FOLLOWER.
AND THE CONCLUSION --
>> BUT, ALSO, I MEAN, WHEN YOU
LOOK AT THESE STATEMENTS, IN
CONTEXT, ISN'T IT LIKELY THAT A
JURY WOULD VIEW THESE THINGS
INCONSISTENT AS THEY WERE,
VARIABLE AS THEY WERE AS MOST
LIKELY AND EXERCISE IN BRAGGING,
AND SELF-PROTECTION.
IN TRYING TO PROJECT AN IMAGE OF
TOUGHNESS, IN ORDER TO AVOID
SOME TROUBLES IN PRISON.
>> FOR EXAMPLE, MR. PEARSON IN
PARTICULAR, HIS TESTIMONY WAS
QUITE COMPELLING AND HE
INDICATED, MR. PEARSON INDICATED
THAT MR. WIGLEY... VARIED OVER
TIME AND THE ONLY THING THAT
VARIED WAS MR. WIGLEY'S MEMORY
WHEN HE WAS ALONE WITH THE
VICTIM IN THE SHACK, AS TO
WHETHER OR NOT HE REMEMBERS
KILLING HER OR SIMPLY REMEMBERS
WAKING UP AND SHE WAS DEAD AND
ALL OF HIS VERSIONS, MR. MAREK
WAS OUT IN THE TRUCK, NOT
INVOLVED.
>> BUT THERE IS WHERE THE
EVIDENCE THAT I GUESS TO ME HAS
BEEN VERY COMPELLING, ABOUT
MR. MAREK'S FINGERPRINTS BEING
THE ONLY FINGER PRINT FOUND IN
THE SHACK WHERE THE BODY WAS
FOUND.
SO THE IDEA THAT IT WAS MAREK
THAT WAS OUTSIDE AND PLAYED AN
INSIGNIFICANT ROLE IS
CONTRADICTED BY THE PHYSICAL
EVIDENCE.
I MEAN, IF YOU DIDN'T HAVE THAT
PHYSICAL EVIDENCE, AND PLUS YOU
STILL -- THERE IS NOTHING THAT
HAS CHANGED THE FACT THAT THIS
COURT RELIED ON, THAT THE TWO --
SURVIVING -- THE PASSENGER, DID
NOT ULTIMATELY GO, SAID IT WAS
MR. MAREK THAT DID ALL THE
TALKING AND THE POLICE OFFICER
AFTERWARDS SAID IT WAS MR. MAREK
THAT DID ALL THE TALKING, NOT
MR. WIGLEY AND THAT DOESN'T
DISAPPEAR, DOES NIGHT IT
DOESN'T, BUT, CERTAINLY IT IS
WORTH NOTING IN MR. WIGLEY'S
TRIAL THAT WAS NOT PORTRAYED AS
OMINOUS AND IT WAS LESS OMINOUS
AND HE WAS THE TALKER AND THAT
WAS PURSUANT TO AN AGREEMENT
WITH MR. WIGLEY, I THINK THE
BOTTOM LINE, THOUGH, IS, IF YOU
HAVE CONFLICTING EVIDENCE, IT
ALL SORT OF NEGATES AND WHAT YOU
END UP HAVING IS THE DISPARITY
IN THE TREATMENT OF THESE TWO
INDIVIDUALS.
WHICH IS WHAT CALLS FOR THE LIFE
SENTENCE.
I MEAN, YOU COULD HAVE DOUBTS AS
TO WHICH OF WIGLEY'S STATEMENTS
TO BELIEVE, BUT, CLEARLY, THERE
IS MORE GOING ON HERE, AND --
>> IT IS INTERESTING, THE
ARGUMENT FOR THIS PENALTY PHASE,
YOU ARE NOT SAYING THAT THIS
COURT, BASED NOW ON THE NEWLY
DISCOVERED EVIDENCE, NOW
PRODUCED MAREK'S SENTENCE, THE
LIFE SENTENCE, ARE YOU.
>> CERTAINLY, THAT... I MAKE A
NUMBER OF ARGUMENTS, AND I SAY
UNDER NEWLY DISCOVERED EVIDENCE,
AND THESE CIRCUMSTANCES, IT IS
NOT JUST A QUESTION OF WHETHER
IT WOULD HAVE MADE A DIFFERENCE
TO THE JURY, IN ABRAM SCOTT IT
WOULD HAVE MADE A DIFFERENCE TO
THE SENTENCING JUDGE AND SHE
SAID SHE WOULD HAVE IMPOSED LIFE
AND IT SHOULD HAVE BEEN LOOK AT
AS HOW IT WOULD AFFECT THE COURT
ON DIRECT APPEAL.
>> WHAT --
>> ABRAM SCOTT SKIES, JUDGE
SCHAEFFER INDICATED, BEFORE SHE
RECUSED HELPFUL HAD SHE KNOWN OF
THE LIFE NOTICE FOR THE
CODEFENDANT.
>> BUT THAT IS NOT THIS CASE.
>> BUT IS AN EXAMPLE OF HOW IT
HAS TO BE EVALUATED.
NOT JUST WHAT HAPPENED IN FRONT
OF THE E JURY, BUT HOW IT COULD
HAVE IMPACTED --
>> WE DON'T HAVE THE ORIGINAL
JUDGE HERE BUT THE JUDGE DIDN'T
EVEN FIND THE WITNESSES TO BE
CREDIBLE.
>> CORRECT.
BUT, WHAT THE JUDGE DID DO IN
1988 IS STRUCK AN AGGRAVATING
CIRCUMSTANCE AND SAID IT WAS
HARMLESS MERELY BECAUSE THERE
WAS NO MITIGATION.
AND, THAT DECISION WOULD NOT BE
SUSTAINABLE, HAD THE LIFE
SENTENCE FOR THE CODEFENDANT
BEEN IN THE RECORD.
WHEN STRIKING AN AG AND IF THERE
IS MITIGATION THAT COULD HAVE
PROVIDED THE BASIS FOR A LIFE
SENTENCE AND THE JUDGE, AT THE
TIME OF THE TRIAL, INDICATED
DURING THE INSTRUCTION
CONFERENCE, THAT IN THE CASE,
THERE WAS NO WAY THAT HE COULD
OVERRIDE A JURY RECOMMEND DIGS
OF LIFE, AND SO THAT WAS ONE OF
THE REASONS WHY HE TOLD
MR. MOLDOF, TRYING TO PERSUADE
-- SWAY THE JURY WITH THE LIFE
SENTENCE STUFF I'LL ALLOW THE
PROSECUTION TO GET INTO WIGLEY'S
CONFESSION, SO MY POINT.
>> THAT THIS COURT HAS TO NOT
JUST LOOK AT THE JURY, THE TRIAL
JUDGE, BUT ALSO, THIS COURT ON
DIRECT APPEAL AND IN
POST-CONVICTION --
>> WHEN YOU LOOK AT ALL OF THOSE
THINGS AND YOU LOOK AT THE
CIRCUMSTANCES OF HOW -- WHERE
THESE STATEMENTS WERE MADE, I
MEAN, YOU HAVE THE SITUATION
WHERE ONE OF THE PEOPLE SAYING,
BASICALLY, THAT THIS --
MR. WIGLEY IS REALLY A WIMP AND
HAS HE WAS -- BRAGGING ABOUT
THIS AND ANOTHER ONE WHO SAID
THAT BASICALLY HE SAID HE DIDN'T
DO IT, OR WHEN THE GUY INDICATED
HE WOULDN'T GIVE HIM ANY HELP,
HE CHANGED HIS STORY AND SAID HE
DID DO IT.
AND ANOTHER ONE SAYS THAT, YOU
KNOW, I DIDN'T REALLY BELIEVE
THESE STATEMENTS THAT HE WAS
MAKING, AND SO, WHEN A JURY --
THE JURY AND THE JUDGE EVEN THE
COURT LOOK AT ALL OF THESE
CIRCUMSTANCES, SURROUNDING THE
MAKING OF THESE VARIOUS
STATEMENTS, IT REALLY SEEMS A
VERY DIFFICULT TASK FOR ME TO
SAY, ANYWAY, THAT THIS WOULD
HAVE TRULY MADE, PROBABLY MADE A
DIFFERENCE IN THE SENTENCING.
AND, I -- THE CONTEXT OF THESE
STATEMENTS, REALLY IS WHAT
PERSUADES ME THAT THIS REALLY
WOULD NOT HAVE MADE A
DIFFERENCE.
>> FIRST I WOULD LIKE TO POINT
OUT THAT THE PROSECUTION ON JUNE
2ND, EXILE EXAMINING
MS. MCDERMOTT MADE THE POINT
THAT, HOW MR. WIGLEY'S BODY IN
FACT WAS FOUND.
WAS SO STRIKINGLY SIMILAR TO THE
VICTIM IN THIS CASE, THEY -- THE
STATE'S ARGUMENT WAS THAT THAT
WOULD SUGGEST THAT THERE WAS A
CONNECTION.
BECAUSE, MISBAIL --
>> HOW HIS BODY AS FOUND.
>> NAKED WITH A RED BANDANNA
AROUND HIS NEXT.
>> THE CIRCUMSTANCES OF THIS
CASE HAS BEEN BANTERED ABOUT FOR
YEARS AND I'M NOT SURE HOW THAT
HELPS IN THIS SITUATION.
>> WELL, I MEAN, I THINK HER
POINT WAS, BECAUSE OF THE
SIMILARITY IN HOW THE BODY WAS
FOUND, IT WOULD SUGGEST THAT
MR. WIGLEY'S BOYFRIEND, WHO
MURDERED HIM, HAD DONE TO HIM
WHAT HAD BEEN DONE -- HE HAD
DONE TO SOMEONE ELSE.
AND I THINK THAT THAT WAS WHAT
THE STATE'S POINT WAS.
BUT, ULTIMATELY, THERE IS NO
QUESTION THAT THIS COURT IN
1988, WOULD HAVE HAD TO REVERSE
WHEN AN AGGRAVATOR WAS STRUCK.
AND THE JURY IN THIS CASE WAS
GIVEN FOUR AGGRAVATORS AND THE
JUDGE FOUND FOUR AGGRAVATORS AND
IN 1988 ONE OF THOSE WAS STRUCK,
AT THE TIME, IN 1984, THE
MITIGATION WAS SIMPLY A GUARD
FROM THE JAIL, TESTIFYING, AS TO
HIS -- MR. MAREK'S CONDUCT IN
JAIL AND HE HAD SHOWN REMORSE
AND THE PROSECUTION TURNED
AROUND AND SAID REMORSE WAS
SIMPLY THAT HE WAS CAUGHT, NOT
THAT HE WAS REALLY REMORSEFUL.
IN ANY EVENT, I BELIEVE THAT THE
FACT THAT IT BECOMES MUDDLED, AS
TO WHO DID WHAT, IS PRECISELY
WHAT THIS COURT HAS INDICATED
REQUIRES THE -- THAT THEY BE
TREATED THE SAME AND WOULD
REQUIRE A LIFE SENTENCE FOR
MR. MAREK.
>> YOU ARE WELL INTO YOUR
REBUTTAL.
>> I WILL --
>> IF YOU WANT TO SAVE ANY TIME.
>> I WILL SAVE THE REMAINING
TIME.
>> ALL RIGHT.
>> I'M CAROLYN SNURKOWSKI FROM
THE ATTORNEY GENERAL'S OFFICE,
JUDGE LEVINSON WHO HEARD THE
JUNE 1ST, 2009 HEARING WAS NOT
THE TRIAL AND IT WAS A CONFUSION
WITH REGARD TO WHAT HE -- HE HAD
TO LOOK AT THE TOTAL CASE AFRESH
AND REVIEWED THE RECORDS AND HIS
ASSESSMENT OF THE RECORD IS
BASED ON TRANSCRIPTS, TESTIMONY,
PRESENTED FOR HIM, AND THE
ARGUMENTS THAT WERE MADE BY
COUNSEL, BEFORE HIM, AND, HE
MADE ASSESSMENTS THAT THE
WITNESSES WERE NOT CREDIBLE AND
I WOULD LIKE TO STEP BACK A
LITTLE BIT, BECAUSE, AS WELL, I
FULLY APPRECIATE THAT I -- THESE
WITNESSES DID NOT -- WERE NOT
COMPELLING, WOULD NOT CHANGE
THEOUT COME, AND PROBABLY WOULD
NOT CHANGE THE OUTCOME WITH
REGARD TO A NEW PENALTY PHASE OR
YOU CAN EVEN GET TO A PENALTY
PHASE THE STATE WOULD SUBMIT IT
IS A RARE CASE WHERE THIS TRIAL
COURT IN FACT FOUND NO DUE
DILIGENCE, AND IT IS SUPPORTED
BY THE RECORD, IT IS SUPPORTED
BY THE TESTIMONY THAT WAS
PRESENTED AT TRIAL BY DEFENSE
COUNSEL, WITH REGARD TO WHAT
ACTION THEY UNDERTOOK AND IN
THIS CASE IT POINTS TO THE FACT
THAT WE HAVE A TARGET DATE.
WE KNOW THAT MR. WIGLEY DIED, HE
WAS KILLED MAY 6TH, 2000 AND AT
THAT TIME, DEFENSE COUNSEL FOR
MR. MAREK WAS ENGAGING IN
LITIGATION AND AT THAT TIME,
RIGHT AFTERWARDS, IN FACT,
WITHIN A YEAR, OF THAT, THEY
SECURED INFORMATION FROM DOC AND
THE STATE ATTORNEY'S OFFICE AND
-- WHO PROSECUTED THE CASE AND
OTHER COURSES -- GOVERNMENT
AGENCIES WITH REGARD TO
INFORMATION CONCERNING
MR. WIGLEY AND MR. MAREK.
MR. WIGLEY IN PARTICULAR, ABOUT
MR. MAREK.
AND WHAT THEY FOUND OUT, AND
WHAT THE ALLEGATION WAS, IF YOU
LOOK BACK AT THE HISTORY OF THIS
CASE, THE 9TH CLAIM IN THAT CASE
HAD TO DO WITH -- THE CULPA
ABILITY OF THE PARTIES, WITH
REGARD TO MAREK, AND WIGLEY AND
AT THAT TIME, THEY WERE
PRESENTING AND TRYING TO SECURE
EVIDENCE THAT SHOWED THAT THE
HISTORY, WIGLEY'S HISTORY,
DEMONSTRATED THAT HE WAS A MORE
CULPABLE -- AND HE WAS NOT A
LESSER DOMINATING PERSON OR HE
WAS NOT THE LESSER PERSON,
EQUALLY OR MORE DOMINANT TYPE OF
PERSONALITY.
AND, FAILED AT THAT.
BUT, IN DOING THAT, THEY WERE
INVESTIGATING THIS EVIDENCE,
THEY SECURED THE NAMES, THEY
MADE CONSCIENTIOUS DECISIONS
WITH REGARD TO SECURING WHAT
NAMES THEY FOUND, AND CALLING
THROUGH THAT -- COMING THROUGH
THE LIST AND FINDING OUT WHO WAY
WOULD SECURE AND MR. BANTERMAN
WAS ON THE LIST AND THEY
DISCOUNTED HIM AND HE COMES
LATER ON IN 2009.
>> HOW MANY OF THESE -- I
BELIEVE THERE WERE 6 PEOPLE WHO
TESTIFIED --
>> THAT'S CORRECT, YOUR HONOR.
>> AT THE EVIDENTIARY HEARING.
HOW MANY OF THOSE NAMES WERE IN
FACT DISCOVERED AND TALKED TO AT
POINTS.
>> WE KNOW AT LEAST THREE OF
THOSE INDIVIDUALS WERE ON THE
LIST, BECAUSE MR. MCDERMOTT
ACKNOWLEDGED THAT AND THE OTHERS
COULD OR COULD NOT HAVE BEEN ON
BUT THEY WERE THE RAPID TRAIL
THAT LED TO THE OTHER
INDIVIDUALS, LIKE MR. MITCHELL,
I BELIEVE, SAID,... MR. MITCHELL
LED THEM TO AN INDIVIDUAL
MR. CLARK, AND MR. CLARK LED
THEM TO LEON DOUGLAS, AND I
MEAN, IT WAS -- THERE WAS -- THE
AVAILABLE EVIDENCE WAS THERE,
AND DUE DILIGENCE DOES REQUIRE
EFFORT ON THE PART OF THE LAWYER
AND THE LAWYER DOESN'T SAY I GET
A PASS BECAUSE I WAS
UNSUCCESSFUL AND YOU TRY AND AT
THIS POINT IN TIME IT WAS NOT A
TIME WHEN NOTHING WAS GOING ON,
THEY WERE ACTUALLY LOOKING FOR
CLAIMS, WITH REGARD TO
CHALLENGING THE CULPABILITY OF
THE INDIVIDUALS WITH REGARD TO
THE CRIME AND AS I SAID THIS IS
ONE OF THOSE CASES WHERE WE DO
HAVE A FAILURE TO PERFORM DUE
DILIGENCE AND THE TRIAL COURT
WHO LOOKED AT THE CASE --
>> EVERY TIME WE HAVE ONE OF
THESE CASES, THIS IS AN ISSUE
THAT COMES ABOUT BUT WHEN THERE
ARE NEW STATEMENTS THAT COME
ABOUT WE WIND UP CHASING OUR
TAILS, BECAUSE THEY TALKED TO
SOMEONE AND THEY DIDN'T SAY BACK
THEN WHEN THEY ARE SAYING NOW
AND THOSE ARE THE DIFFICULT
THINGS WE MUST, MUST WRESTLE
WITH AND I FIND IT DIFFICULT AND
THIN TO RULE ON A CASE LIKE THIS
ON A DUE DILIGENCE WHEN THERE
ARE STRONGER REASONS IN
EXISTENCE THAT WOULD TAKE US
BEYOND THAT.
>> AND I --
>> I SEE PROBLEMS, HERE, QUITE
HONESTLY WITH, YOU KNOW, IN MY
VIEW WITH SOME OF THE THINGS
THAT OCCURRED DURING THE
HEARING, AND THOSE KINDS OF
THINGS.
BUT, IT IS THE ULTIMATE, I THINK
JUSTICE PARIENTE HIT ON THAT IS
REALLY THE HEART OF WHAT THIS
CASE IS ABOUT.
I MEAN...
>> AND I DON'T DISAGREE, YOUR
HONOR, I UNDERSTAND THAT BUT I
THINK IT IS IMPORTANT BECAUSE WE
HAVE A TRIAL COURT WHO CAME IN
THE CASE, NEW, AND FOUND -- MADE
THAT GLARING DETERMINATION,
THERE WAS NOT DUE DILIGENCE,
AFTER HEARING THE EVIDENCE.
>> AGAIN, I DON'T KNOW THAT THAT
IS SUPPORTED, AND AS I LOOK AT
THE RECORD I DON'T KNOW THAT
THAT IS A FINDING, BECAUSE IT IS
A FINDING IS REALLY SUPPORTED
WHEN YOU LOOK AT THE WHOLE
SCHEME OF THESE KINDS OF CASES
THAT COME BEFORE US BECAUSE THIS
IS ALWAYS AN ISSUE THE STATE
WANTS TO GRAB TO, THIS IS THE
ONLY ISSUE IN THE CASE.
>> BUT, I DON'T --
>> I WOULD, WOULD HOME YOU WOULD
ADDRESS SOME OF THE OTHER ONES.
RATHER THAN JUST HANG ON THAT
POINT.
PARTICULARLY, THE QUESTION OF
JUSTICE -- THE QUESTION JUSTICE
PARIENTE RAISES AND THE RESPONSE
MR. McCLAIN PROVIDED TO US, HE
HAS MADE A COMPELLING ARGUMENT,
ONE PERSON IS RECEIVING A LIFE
PENALTY AND THESE ARE THINGS
THAT OUGHT TO BE REWEIGHED AND
REEVALUATED.
>> WELL, IN FACT IF YOU LOOK AT
MR. CONLEY, GO TO THE WITNESS
WHOSE TESTIFIED, HE TESTIFIED
THAT HE THOUGHT FOR EXAMPLE THAT
ALTHOUGH WIGLEY WAS TELLING HIM
THIS, IT WAS FOR A REASON AND
THE REASON WAS HE WANTED HIS --
MR. CONLEY'S WIFE TO HELP WIG L
WITH REGARD TO HIS
POST-CONVICTION LITIGATION, AND
MR. BANTERMAN, HAS -- HIS
TESTIMONY REFLECTS THAT
MR. WIGLEY WAS BOASTING WITH
REGARD TO HIS COMMENTS ABOUT HOW
HE KILLED SOMEBODY.
IF YOU LOOK THE AT MR. PEARSON
--
>> GO BACK TO MR. CONLEY, HE DID
NOT TESTIFY AGAIN.
>> HE DID NOT.
HE WAS ILL AND COULD NOT COME
BACK.
>> HE STRUCK ME, IN TERMS OF --
OF COURSE WE DIDN'T SEE HIM, BUT
HIS TESTIMONY IS CLEAR TO ME
THAT HE HAD A FEELING THAT
MR. WIGLEY... TELLING THE TRUTH.
NOW, LET'S ASSUME THAT WIGLEY
DID STRANGLE THE VICTIM.
AND THAT THIS IS -- SEEMS TO BE
CONSISTENCY THAT MIGHT MAKE
THAT, YOU KNOW, A POSSIBLE
THING, THAT IS, THAT IT WAS
WIGLEY THAT ACTUALLY DID THE
STRANGLING AND THEY BOTH MAY
HAVE HAD SEXUAL RELATIONS.
DOES THAT CHANGE THE RELATIVE
CULPABILITY MIX, IN OTHER WORDS,
IF WE LOOK AT THE SUM TOTAL AND
SAY, YOU KNOW WHAT?
LOOKS LIKE WIGLEY MAY HAVE BEEN
THE PERSON WHO DID THE
STRANGLING AND HE GOT THE LIFE
SENTENCE, HOW DOES THAT AFFECT
THE...
>> I DON'T THINK IT CHANGES, IF
YOU ARE ASKING ME, THE LIKELY
PROBABILITY AND THE ANSWER IS NO
AND THE REASON FOR THAT IS --
EXCUSE ME -- A NUMBER OF
REASONS, FIRST OF ALL, MR. MAREK
TOOK THE STAND IN HIS TRIAL, AND
SAID HE WASN'T THERE.
AND THE JURY HEARD THAT, AND,
ALSO, HEARD MR. MAREK ADMITTED
THAT HE WAS THE ONE THAT STARTED
US OFF ON THE TREK AND HE WAS
THE ONE THAT INVITED THE VICTIM
TO -- HE WAS GOING TO HELP HER
AND HE WAS THE ONE -- EXCUSE ME,
MR. MAREK'S OWN LIPS, WE HEAR
THAT HE IS THE PERSON WHO IS
TAKING PART IN SETTING IS ALL IN
MOTION.
>> LET'S -- IN TERMS OF THAT YOU
HAVE TWO MEN AND THEY HAVE
STOPPED FOR PEOPLE THAT ARE BY
THE SIDE OF THE ROAD, AND THOSE
TWO MEN, THEY -- IS IT NOT
LIKELY THAT THE DISCUSSION
OCCURRED BEFORE HANDLED, WHAT
THEY WERE GOING TO DO?
I MEAN, YOU KNOW WHAT I'M
SAYING?
ANY SUGGESTION MR. MAREK HAS
DECIDED ON HIS OWN, TO GO OFF ON
THE PLAN, AND THAT SOMEHOW HE
DRUGS WIGLEY TO GO ALONG WITH
HIM.
>> THAT IS NOT THE PLAN, THE
PLAN IS THEY ARE DRIVING DONE
THE HIGH WA AND COMING INTO
FLORIDA AND HAVING A GOOD TIME,
AND SEE THIS CAR AND STOP, AND
RENTEDER -- TO RENDER ASSISTANCE
AND MR. MAREK SAYS I'LL HELP
YOU, BECAUSE SHE'S LOOKING FOR
ASSISTANCE.
>> BECAUSE HE IS DOING THE
TALKING, HOW DOES IT MAKE THE
OTHER PERSON NOT CULPABLE
EQUALLY FOR WHAT HAPPENED.
>> THIS COURT ON DIRECT APPEAL
REVIEWED THE RECORD AND
DETERMINED THAT ALONG THE WAY,
WHAT MR. MAREK SAID TO THE JURY
WAS FOUND TO BE CORRECT.
BECAUSE, OTHER WITNESSES SAID
THE SAME THING.
JEAN TRACK TESTIFIED THAT SHE
WAS SURVIVING -- THE SURVIVING
INDIVIDUAL AND TESTIFIED MAREK
SPOKE TO HER AND MAREK CAME TO
THE CAR AND MAREK WHO SUGGESTED
ONE OF THEM GO, AND, IT WAS THE
VICTIM WHO SAID -- ASKED JEAN TO
GO, AND SHE WAS AFRAID.
AND SO, THE VICTIM WENT.
IT WAS MAREK WHO AFTER THE
MURDER ALMOST IMMEDIATELY AFTER
THE MURDER WAS TALKING TO POLICE
OFFICERS, AND TALKING ABOUT WHY
WE'RE THERE AND HE WAS THERE,
AND HE WAS IN FLORIDA, AND --
BECAUSE HE WAS LOOKING FOR
COLLEGE FRIENDS.
IT WAS MAREK WHO DID ALL OF THE
TALKING.
YOU DON'T HAVE ANY TESTIMONY, IN
THE RECORD TO REFLECT OTHERWISE.
AND, THE AT THE TRIAL, MAREK'S
TRIAL WHILE THERE WAS A ISSUE
MANY MOONS AGO WITH REGARD TO
WHO, WHETHER THERE WAS A --
DISPARATE DETERMINATION AS TO
WHO WAS THE ACTUAL KILLER, THE
BOTTOM LINE WAS, THAT THERE WAS
NOT, THE STATE IN THIS
PARTICULAR CASE, MAREK'S CASE,
SAID, I DON'T CARE HOW YOU
DECIDE IT, WHATEVER YOU FIND
MR. MAREK'S -- WHAT HE ACTUALLY
DID THE MURDER OR HELPED IN THE
MURDER OR WHAT HE DID, IT IS
STILL FIRST DEGREE MURDER AND
THAT IS WHAT HE WAS CONVICTED
OF, MR. WIGLEY WAS CONVICTED OF
FIRST DEGREE MURDER, ALSO, AND
GOT A LIFE SENTENCE.
>> AND THAT IS ALL, I THINK, I
DON'T THINK, ANYTHING CHANGES
THAT MR. MAREK GUILTY OF --
MAKES HIM GUILTY OF FIRST DEGREE
MURDER, I GUESS THE ONLY -- WHAT
WE WERE FOCUSING ON IS OUR
JURISPRUDENCE THAT DEALS WITH AN
EQUALLY CULPABLE PERSON, TO GET
A LIFE SENTENCE, AND OTHER
PORTIONALITY, IN FAIRNESS, TO
THE SYSTEM, SO THAT THERE IS
CREDIBILITY IN THE SYSTEM, THAT
THE CODEFENDANT SHOULD ALSO GET
A LIFE SENTENCE AND I THOUGHT
THAT WAS THE ONLY ISSUE.
>> THAT IS CORRECT BUT THERE IS
NOTHING IN THE RECORD THAT
CHANGED BASED ON THE VICTIMS.
>> AND I GUESS THE QUESTION I
ASKED WAS, IF IT WAS MR. WIGLEY
THAT DID -- STRANGLED THE
VICTIM, AND THAT YOU SAY THAT
DOESN'T CHANGE THE CALCULUS OF
THE WAY THE COURT WOULD LOOK AT
THE CASE.
>> FIRST OF ALL, I DON'T THINK
YOU EVER FIND THAT, WE CAN THE
NOT MAKE THE DETERMINATION BUT
ASSUME FOR THE MOMENT WE PRESENT
THE EVIDENCE WITH REGARD TO THE
WITNESSES, THEY CAME IN.
FIRST OF ALL, THEY HAVE TO BE
TAKEN IN CONTEXT AND THE COURT
RECOGNIZES THAT, AND AS I WAS
GOING THROUGH THE SCENARIO OF
ALL OF THESE WITNESSES EACH ONE
OF THEM THAT'S A PROBLEM WITH
REGARD TO THEIR CREDIBILITY, OR
THEIR BELIEVEABILITY OR THE KIND
OF STORY THEY ARE TELLING,
BECAUSE ALL OF THE STORIES ARE
DIFFERENT AND NOT THE SAME BUT,
SECOND OF ALL, WE HAVE A
DETERMINATION THAT, BY THAT
COURT AND ALL THE COURTS THAT
LOOKED AT THE CASE, THAT, IN
FACT, MR. MAREK WAS THE MORE
DOMINANT ONE AND NOTHING --
NOTHING -- ABOUT THE SIX
WITNESSES CHANGED THAT, AND
PLUS, NOW WE KNOW, NOW WE HAVE A
CASE THAT IS BEFORE THE COURT --
>> YES, THERE IS A DIFFERENCE
AND THAT IS WHAT WE ARE TRYING
TO GET TO THE BOTTOM LINE.
AND THAT IS, IF WIGLEY WAS THE
-- PERFORMED THE ACTUAL
STRANGULATION, I THINK THAT IS
THE BOTTOM LINE QUESTION.
BEING PROPOUNDED, WOULD YOU
RESPOND TO THAT.
>> AND I'M --
>> IF IT WERE FOUND --
>> SURE.
>> THAT MR. WIGLEY WAS ACTUALLY
THE PERSON WHO COMMITTED THE
STRANGULATION, WHAT HAPPENS
THEN.
>> I THINK AGAIN, THIS IS LIKE
OTHER CASES, WHERE THE COURT
HELD IT IS A MORE DOMINANT
REACTION AND LAVALIER, SHE ASKED
HER SON AND HE WAS ACQUITTED AND
HE APPARENTLY DID THE MURDER BUT
HE WAS ACQUITTED AND THE MORE
DOMINANT PERSON IS ENTITLED TO
GET -- AND THE COURT HELD, A
NUMBER OF CASES OUT THERE,
WALTON, A NUMBER OF CASES,
STEIN, A NUMBER OF CASES THAT
REFLECT THAT YOU HAVE A -- MORE
DOMINANT FIGURE THAT PERSON IS
ELIGIBLE --
>> I GUESS I'M CONCERNED ABOUT,
I KNOW WE HAVE THE MASTER MIND,
THAT IS WHAT I WAS ASKING
EARLIER, DOES IT REALLY MEAN,
BECAUSE ONE PERSON IS DOING THE
TALKING, I DON'T KNOW HOW,
WHETHER ONE IS, MORE HANDSOME
GUY THAN THE OTHER AND THEY
SAID, YOU ARE THE LADIES MAN,
YOU GO DO THE TALKING, YOU ARE
THE SMOOTHER PERSON, I DON'T
KNOW, THAT THAT ACTUALLY IS
EQUIVALENT TO THE CASES WHERE
THERE IS TRULY A MASTERMIND WHO
IS LIKE, YOU KNOW, THAT DRIVES
THE IDEA OF THIS MURDER, OR THE
MURDER OF SOMEBODY'S HUSBAND OR
SPOUSE AND THAT IS WHERE WE HAVE
SAID, THOSE KIND OF MASTER MINDS
AND WHERE THERE ARE TWO PEOPLE
ACTING IN CONCERT, AND IF THERE
IS A -- AN AGREEMENT, THAT ONE
OF THEM IS GOING TO DO THE
TALKING, I DON'T KNOW, YOU KNOW,
AGAIN -- AND I -- I DON'T KNOW
HOW THAT TRANSLATES INTO THAT
PERSON'S BEING THE MASTER MIND.
>> FIRST OF ALL, I DON'T THINK
YOU HAVE THOSE FACT AND THOSE
ARE NOT THE FACTS OF THE CASE,
YOU DON'T HAVE ANYBODY SAYING,
THAT A LEGALLY AGREED WITH MAREK
THAT HE WAS GOING TO BE THE ONE
THAT TALKED.
THERE IS NO AGREEMENT TO THAT.
THERE IS -- ALL WE HAVE IN THIS
RECORD IS MAREK WAS THE ONE WHO
WAS DOMINATED.
OR DOMINATED THE CONVERSATION,
AND MAREK WAS THE ONE THAT WENT
FORWARD AND THE ONE THAT
ADDRESSED AND SET THE PROCESS IN
MOTION AND WE HAVE WIGLEY'S
TESTIMONY, HIS TESTIMONY --
TRIAL TRANSCRIPT NOW, THAT
REFLECTS THAT THE STATE SAID
THAT, YOU KNOW, WIGLEY'S TRIAL,
THAT YOU KNOW, WIGLEY WAS
INVOLVED, TOO.
BUT, IN THE RECORD, THE --
BEFORE THIS JURY WHAT WE HAD WAS
THE JUDGE, JURY, KNOWING THAT IT
WAS WIGLEY WHO WAS STANDING BY
WITH HIS HEAD HUNG DOWN, NOT
SAYING ANYTHING.
HE DIDN'T ACT, HE DIDN'T DO
ANYTHING.
AND THAT IS WHAT WE HAVE IN THIS
RECORD.
MAREK DOING EVERYTHING.
>> WE ALSO HAVE OTHER POTENTIAL
EVIDENCE, THAT SHOWS THAT
MR. WIGLEY WAS A WEAK PERSON,
AND A FOLLOWER, NOT A LEADER.
>> RIGHT.
>> WHICH WOULD CONFIRM THE
CIRCUMSTANCES THAT POINT TO
MR. MAREK AS THE DOMINANT ACTOR.
>> AND THAT IS MY NEXT POINT,
WHAT I'M REALLY GETTING AT.
BEYOND THESE SIX PEOPLE, WHO DO
NOT IMPACT WHAT HAPPENED AT THIS
TRIAL, IF YOU HAVE ANOTHER
PENALTY PHASE OR YOU HAVE TO PUT
THIS IN THE CALCULUS, OF, WE
HAVE DR. CASH, DR. COOPER, WHO
ALL WERE DOCTORS WHO HAD LETTERS
TO THE COURT AT THAT TIME, WHO
WOULD HAVE BEEN CALLING, CALLED
AND YOU DO THIS REPORT, AND TALK
ABOUT WHAT IN FACT THE RECORD
BEARS OUT AND THAT WAS WIGLEY
WAS A WIMP.
HE WAS NOT A FOLLOWER, YOU HAVE
EVERY ONE OF THESE WITNESSES
THAT TESTIFIED AS -- AT THE
EVIDENTIARY HEARING, SAYING THAT
WIGLEY'S A WIMP.
THEY ARE NOT CHANGING THAT.
THEY ARE NOT CHANGING ANYTHING.
THEY ARE NOT, NOT CUTTING INTO
THE REAL ISSUE, BEFORE THE
COURT.
AND THAT IS, WHETHER IN FACT
MAREK WAS THE DOMINANT ONE,
BECAUSE THAT IS THE PREMISE UPON
WHICH THE COURT AND EVERY COURT
THAT LOOKED AT IT, NO MATTER
WHAT THE ISSUE MAY BE, WHETHER
AN -- EDMONDS ISSUE OR WHATEVER,
DETERMINED THAT MAREK WAS THE
PREDOMINANT ACTOR IN THIS CASE
AND NOTHING -- NOTHING -- THAT
WIGLEY SAID TO THESE SIX PEOPLE
-- FIVE PEOPLE, BECAUSE I DON'T
THINK HE TALKED TO MR. DOUGLAS,
THESE FIVE PEOPLE MAKES A
DIFFERENCE, IN JAIL TWO OF THESE
PEOPLE SAID, WIGLEY SAID, I
KILLED BEFORE AND I'LL KILL
AGAIN.
>> DIDN'T HE TELL ONE OF THE
WITNESSES THAT HE WAS ACTUALLY
THE ONE THAT TALKED TO THE WOMEN
ON THE ROAD, WHICH IS REFUTED .
>> YES.
>> BY THE SURVIVING TRAVELING
COMPANION AND HAS NO
CREDIBILITY.
>> RIGHT.
AND, AGAIN, THEY CHANGE AND,
WHAT MR. PEARSON SAID, HOW THEY
FLUCTUATED, ONE OF THE STORIES
WAS THAT HE DIDN'T KNOW WHEN
MAREK LEFT AND FELL ASLEEP AND
FOUND THE WOMAN DEAD AND DIDN'T
KNOW WHERE MAREK WAS, AND THAT
DOESN'T MEAN THAT HE ACTUALLY
DID THE STRANGULATION, HE TELLS
ONE WITNESS, THAT HE DID IT WITH
HIS HANDS.
HE TOLD ANOTHER ONE HE STRANGLED
WITH A BANDANNA AND WE HAVE
DIFFERENT STATEMENT, GOING
ACROSS THE BOARD.
AND SO, BASED ON WHAT WE HAVE,
TAKING IN TOTO WE HAVE TO LOOK
AT ALL OF THE EVIDENCE, THE
TRIAL JUDGE FOUND THERE WAS NO
CREDIBILITY AS TO ANY OF THESE
WITNESSES, AND THAT THERE WOULD
NOT BE -- WOULD NOT BE A
PROBABILITY, THE OUTCOME WOULD
BE DIFFERENT.
THE STATE UNLESS THERE ARE OTHER
QUESTIONS WOULD ASK THE COURT TO
AFFIRM.
THANK YOU.
>> THANK YOU.
>> FIRST, AS TO JUDGE LEVINSON'S
CREDIBILITY, I THINK IN CONTEXT,
WHAT HE IS SAYING IS THAT HE DID
NO FIND MR. WIGLEY CREDIBLE,
BECAUSE, THERE WERE
INCONSISTENCIES BETWEEN THE
STATEMENT AND THE... TESTIFIED
DID NOT NECESSARILY BELIEVE HIM.
AND THERE IS NO INDICATION THAT
HE FOUND AN INDIVIDUAL OTHER
THAN MR. DOUGLAS, AS CREDIBLE.
AND, SECOND, AS TO BRIEFLY, ON
THE DILIGENCE POINT, IT WAS
INDICATED INFORMATION FROM THE
STATE ATTORNEY'S OFFICE,
PROSECUTING MR. WIGLEY'S MURDER
IN 2011, THAT IS NOT TRUE AND IT
WAS AN OPEN FILE AND... REFUSED
TO PROVIDE IT AND IT WAS NOT
DISCOVERED UNTIL 2009.
ALSO, MR. BANTERMAN WAS-ON-NOT
ON THE LIST -- MR. BANTERMAN WAS
NOT ON THE LIST, ON -- AND
THAT'S THE TESTIMONY.
AND ALSO, TO MAKE THIS POINT
THAT AS TO WHETHER MR. PEARSON
--
>> HOW, THEN, HOW WAS
MR. BANTERMAN FOUND.
>> HE WAS FOUND IN THE DOC
RECORDS, IN 2009, AND HE WAS
TALKED TO IN 2009.
HE NAME WAS IN THE DOC RECORDS
IN O-1, BUT HIS NAME WAS NOT PUT
ON THE LIST.
AND, THE EXPLANATION WAS HE
DIDN'T SEEM TO HAVE THAT CLOSE
OF A CONNECTION WITH
MR. WIGLEY...
>> BUT HIS NAME WAS IN THE
RECORD.
IN 2001.
>> YES.
>> AS TO MR. PEARSON,
MR. PEARSON, NEVER --
>> DO YOU SPEND SOME TIME ON HER
ARGUMENT, THE BOTTOM LINE, SHE
SAYS THAT THIS REALLY DOESN'T
CHANGE THE OUTCOME AS TO THE
SENTENCING AND SEEMS TO BE THE
HEART OF WHERE WE ARE GOING INTO
YES, YOUR HONOR AND ULTIMATELY,
I GUESS, SORT OF THE
HYPOTHETICAL KIND OF NOTION THAT
I BELIEVE, JUSTICE PARIENTE WAS
SORT OF ALLUDING TO IS, IN A
SITUATION WHERE WE HAVE NEW
EVIDENCE THAT IS DEFINITELY
ESTABLISHING THAT MR. WIGLEY IS
THE KILLER, THERE IS NO
QUESTION, IT WOULD HAVE TO BE A
LIFE SENTENCE.
>> THE STATE SAYS, THE STATE
SAYS THAT REALLY, WHAT YOU HAVE
HERE IS -- WE MAY QUIBBLE ON
WORDS, BUT THE MASTERMIND, THE
PERSON WHO REALLY SEDUCES OR
ENTICES THIS VICTIM, INTO THE
WEB, DOES ALL THE TALKING, DOES
ALL THE MANIPULATION AND SECURES
THE PERSON, WHAT ABOUT THAT,
THAT IS WHAT SHE SAID.
>> ALL THE CASES THAT SHE IS
RELYING UPON... [INAUDIBLE]
THERE IS NO INDICATION...
[INAUDIBLE] IN FACT ALL THE
EVIDENCE IS THAT THERE WAS NO --
>> IS THAT A REQUIREMENT?
>> I THINK, THE MASTER MIND, YOU
KNOW --
>> TO FALL INTO THAT CATEGORIES
OF CASES.
>> I THINK ALL OF THE CASES THAT
SHE CITED ARE ALL... CASES, THE
PLANNED TO MAKE ARRANGEMENTS TO
MURDER HER HUSBAND.
AND I CAN'T REMEMBER WHAT THE
OTHER CASE IS.
MY RECOLLECTION IS IT INVOLVED A
COLD, CALCULATED... [INAUDIBLE].
>> ARE YOU SAYING YOU CANNOT
FROM THE CIRCUMSTANCES OF THE
CASE, DETERMINE THAT SOMEONE IS
A MASTERMIND.
YOU HAVE TO HAVE THAT --
>> IT IS POSSIBLE.
BUT IN THIS CASE, WHAT IS
INTERESTING, IS --
>> IT'S POSSIBLE.
>> IT'S POSSIBLE AND IN THIS
CASE IT IS NOT POSSIBLE, IF YOU
LOOK AT WHAT HAPPENED IN
MR. WIGLEY'S TRIAL, THE...
[INAUDIBLE] LOOK AT WHAT
HAPPENED IN MR. WIGLEY'S TRIAL
THE PROSECUTION WAS ARGUING THE
SAME EVIDENCE THAT, SHOWING THIS
WAS MR. WIGLEY WHO WAS THE ONE
IN CONTROL.
ARGUING THAT HIS SILENCE WAS
OMINOUS AND ARGUING HE WAS THE
ONE THEY WERE REALLY AFRAID OF.
>> I -- GO AHEAD.
>> I'M SAYING WHERE THE EVIDENCE
IS AMBIGUOUS, THE PROSECUTION --
>> BUT EVIDENTLY, I MEAN, IT
SEEMS TO ME THAT THERE IS SOME
DISCERNMENT GOING HERE, BECAUSE
HE ENDED UP WITH, YOU KNOW, A
LIFE SENTENCE.
AS OPPOSED TO --
>> MITIGATION.
>> SENTENCED TO DEATH.
>> MITIGATION WAS PRESENTED IN
HER WIGLEY'S CASE AND NONE IN
MR. MAREK'S CASE AND ONE OF THE
THINGS THAT IS BEING OVERLOOKED
IS THE MENTAL HEALTH EVALUATION,
THE MENTAL HEALTH EVALUATION IS
MR. WIGLEY WAS INSANE.
AND THAT HE DID IT IN A FRENZY.
AND, SO, MR. MOLDOF TESTIFIED,
IT WAS EASY TO RIP APART THE
INSANITY THING THAT WAS NOT
PRESENTED MT. ARE WIGLEY --
>> WHAT WERE THEIR AGES AND
RELATIVE HEIGHTS.
>> MR. MAREK IS DEFINITELY
TALLER, THEY WERE ABOUT THE SAME
AGE.
>> WHAT WAS BOTH OF THEIR
CRIMINAL HISTORIES.
>> OFF THE TOP OF MY HEAD, I
DON'T REMEMBER MR. WIGLEY'S AND
MR. MAREK WAS A $65 CREDIT CARD
CHARGE... CONSIDERED A FELONY.
>> NO PRIOR VIOLENT FELONIES.
>> NO PRIOR VIOLENT FELONY AND
THE POINT I WAS MAKING IS, WHAT
DO YOU... [INAUDIBLE] IF IT IS
50/50, THEY SHOULD GET THE SAME
SENTENCE AND THAT IS WHAT THE
COURT CASE LAW IS AND I DON'T
THINK -- THAT'S WHY I DON'T
THINK I HAVE TO PROVE...
[INAUDIBLE] I THINK I HAVE TO
PROVE ANYBODY THAT LOOKS AT
THIS... [INAUDIBLE] JUST AS
LIKELY MR. WIGLEY... [INAUDIBLE]
SO THAT'S WHY I'M ARGUING THAT
EVEN IF IT IS MUDDLED AND EVEN
IF YOU LOOK AT A AND DON'T KNOW
WHAT HAPPENED, THAT IT SHOULD BE
A LIFE SENTENCE FOR BOTH OF
THEM, AND UNDER THE PROPER
ANALYSIS AND I WANTED TO MAKE
THIS POINTED, MR. MOLDOF
TESTIFIED HE WAS NOT... HE HAD
HAD THE STATEMENTS TO PRESENTS
MR. MAREK'S VERSION, THAT HE WAS
OUT IN THE PICKUP TRUCK.
WHEN THIS WAS GOING ON.
>> YOU HAVE USED YOUR TIME.
>> THANK YOU, YOUR HONOR.
>> THANK YOU VERY MUCH FOR YOUR
ARGUMENTS, YOUR DILIGENCE AND
GETTING THE BRIEFS TO US IN A
VERY SHORT PERIOD OF TIME.
THANK YOU VERY MUCH.
THE COURT WILL NOW BE IN RECESS.
>> PLEASE RISE.