CHIEF JUSTICE: JUST BE AT EASE FOR A MOMENT. ALL RIGHT. YOU MAY PROCEED.
GOOD MORNING. MAY IT PLEASE THE COURT. MY NAME IS PAMELA ISAKOWITZ. I AM HERE ON BEHALF OF JASON DIRK WALTON AND THE CAPITAL COLLATERAL RESOURCE CENTER IN FORT WALTON. WE ARE HERE ON A DENIAL OF MOTION TO VACATE SENTENCE FROM PINELLAS COUNTY, AND I WOULD LIKE TO ADDRESS TWO AREAS, INITIALLY THE INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM AND THE BRADY CLAIM, BUT FIRST INNING A LITTLE BACKGROUND IS NEEDED. IN 1991, MR. WALTON WAS GRANT ADD LIMITED EVIDENTIARY HEARING IN CIRCUIT COURT ON THE INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM. HE WAS DENIED FROM THE BENCH, BY JUDGE DOWNY, I BELIEVE. HE FILED AN APPEAL TO THIS COURT IN 1992, AND RAISING 14 CLAIMS, AMONG THEM A PUBLIC RECORDS CLAIM. IN 1993, THIS COURT REMANDED THE CASE BACK TO THE CIRCUIT COURT, TO RESOLVE THE PUBLIC RECORDS ISSUES, AND AT THAT TIME THIS COURT RESERVED RULING ON THE REMAINDER OF THOSE 13 CLAIMS THAT WERE IN THE INITIAL BRIEF, SO THOSE 13 CLAIMS ARE CURRENTLY BEFORE THIS COURT AND HAVE NOT BEEN ADDRESSED BY THIS COURT AND MUST BE ADDRESSED BY THIS COURT AS WELL, IN ADDITION TO WHAT IS BEING DISCUSSED TODAY. PUBLIC RECORDS LITIGATION STARTED IN 1993 FROM THE REMAND, AND LASTED UNTIL 1998. MORE THAN 30,000 PAGES OF DOCUMENTS WERE EVENTUALLY TURNED OVER TO MR. WALTON FROM THE STATE ATTORNEYS OFFICE, AND THE SHERIFFS DEPARTMENT IN PINELLAS COUNTY. FIVE PUBLIC HEARINGS WERE HELD, AND AT TEACH TIME SOMEBODY NEW CAME TO THE HEARING, THEY WOULD BRING FORWARD NEW INFORMATION. IN 1995, JUDGE DOWN I SAID THAT -- JUDGE DOWNY SAID THAT CCR HAD NOT BEEN GIVEN ALL THE RECORDS TO WHICH IT WAS ENTITLED TO AND MR. WALTON INITIALLY MADE THE REQUEST IN 1990, AND THAT IS WHY HE RAISED THE ISSUE IN THE BRIEF HE WASN'T GIVEN THE RECORDS TO WHICH HE WAS ENTITLED. BY THE TIME 1998 CAME AROUND, PUBLIC RECORDS WAS MOSTLY DONE AND THE AMENDED 3.850 WAS FILED. JUDGE DOWNY GRANTED A LIMITED EVIDENTIARY HEARING ON SOME OF THE ISSUES THAT WERE RAISED FROM THOSE PUBLIC RECORDS, INCLUDING A BRADY ISSUE. HE, ALSO, TO HIS CREDIT, GRANTED A REOPENING OF THE EVIDENTIARY HEARING, IN LIGHT OF THOSE PUBLIC RECORDS. WHEN THIS COURT SENT BACK THAT CASE IN 1993, THIS COURT SAID IT WANTED TO RESERVE RULING ON ALL OF THE AREAS THAT WERE IN THE INITIAL BRIEF AND TO SEE IF THERE WERE ANY OTHER AREAS THAT MAY BE AFFECTED BY THE PUBLIC RECORDS. WHAT WAS AFFECTED BY THE PUBLIC RECORDS WAS THE INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM AND THE BRADY CLAIM.
AND THE EVIDENTIARY HEARING WAS REOPENED TO ADDRESS THOSE CLAIMS, IS THAT --
YES, SIR. YES, SIR. AS FOR THE INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM, MR. WALTON WAS REPRESENTED BY DEFENSE ATTORNEY DONALD ON LEER HI IN 1983. THIS COURT AFFIRMED THE CONVICTION AND SENT THE CASE BACK FOR RESENTENCING. MR. WALTON WAS, AGAIN, REPRESENTED BY MR. O'LEARY IN 1986. THE PROBLEM WAS THAT MR. O'LEARY DIDN'T UNDERSTAND MITIGATION AND HAD NO IDEA WHAT TO DO WITH IT, DIDN'T INVESTIGATE IT, DIDN'T FIND ANY MITIGATION, DIDN'T KNOW WHAT IT MEANT. THIS WAS HIS FIRST CASE AS A CAPITAL DEFENSE ATTORNEY, AS A DEFENSE ATTORNEY, HE HAD BEEN A PROSECUTOR, AND HAD BEEN A PROSECUTOR OF MURDER CASES BUT HAD NEVER GONE TO PENALTY PHASE. EVEN UNDER THE STANDARDS OF TODAY, MR. O'LEARY WOULDN'T HAVE BEEN ABLE TO REPRESENT MR. WALTON, BECAUSE HE DIDN'T QUALIFY UNDER THE STANDARDS OF DOING AT LEAST TWO PENALTY PHASES, SO BY THE TIME HE REPRESENT PLD WALTON IN 1986, HE HAD NOT GONE TO PENALTY PHASE AND HAD NOT DONE A CASE AS A A DEFENSE ATTORNEY AND IT WAS PRETTY OBVIOUS. HE FAILED TO DO ANY INVESTIGATION AT ALL.
LET'S GO BACK TO WHAT THE RECORD IS THAT INDICATE THAT, AND THE TESTIMONY FROM THE HEARING, AND THIS IS WHERE I HAVE SOME TROUBLE WITH IT, IS THE TESTIMONY AT THE HEARING FROM MR. O'LEARY IS THAT HE TALKED ABOUT THE CLIENT. HE TALKED WITH THE -- HE TALKED WITH THE CLIENT EVENT TALKED WITH THE CLIENT'S MOTHER AND WAS TOLD THAT THE SISTERS DIDN'T WANT TO PARTICIPATE OR SOMETHING TO THAT EXTENT, HAD WORK INFORMATION THAT INDIVIDUALS THAT HE WORKED, WAS VERY RELIABLE, AND IT IS WHAT THEY WERE, INTENDED TO SAY. HIS MOTHER TESTIFIES THAT HE IS NORMAL, THERE IS NO PROBLEMS, THERE IS NOTHING AT ALL THAT IS OUT OF THE NORM.
THAT'S CORRECT.
AND THEN WE HAVE SOMETHING THAT COMES IN, LIKE, A NOTATION ON THE PSI OR SOMETHING, LATER ON, SO HOW DO WE GET IN HERE, AND WHAT WAS THAT INFORMATION? WAS FROM A SEED PROGRAM OF SOME KIND?
THAT'S CORRECT.
AND WHAT WAS THE EXTENT OF THAT? WAS THAT SOME MARIJUANA USED OR WAS THAT SOMETHING HEAVIER THAN THAT? BECAUSE THEN THE LAWYER SAYS I GET THE PICTURE THAT THIS DEFENDANT WOULD DRINK BEER AND SMOKE A LITTLE MARIJUANA, LIKE MOST OF THE OTHER BOYS IN MARION COUNTY, WAS PRETTY MUCH HIS STATEMENT.
THAT'S CORRECT.
SO HELP WITH THIS. WHAT IS THE LAWYER SUPPOSED TO DO AT THAT TIME, GIVEN THAT KIND OF SCENARIO, WITH, ON THE OTHER HAND, WHAT HAS BEEN FOUND AND THE SCOPE AND EXTENT OF THAT.
FIRST OF ALL THE PSI WAS DONE IN 1984. BETWEEN 1984 AND 1996, COUNSEL COULD HAVE READ THE PSI REPORT, WHICH SIMPLY SAYS HE TRIED COCAINE, HAVING BEEN INVOLVED IN A SEED PROGRAM AT THE AGE OF 16 AND REFERRED BY HIS MOTHER, STATES THAT HE COMPLETED THE PROGRAM AND PRIOR TO HIS INVOLVEMENT HE WOULD BECOME STONED APPROXIMATELY THREE TIMES A DAY. THE PROBLEM WAS THAT MR. O'LEARY DIDN'T KNOW TO SKCHLT HE DIDN'T ASK THE MOTHER ABOUT THE DRUG USE. IN FACT MRS. WALTON DIDN'T KNOW ABOUT THE DRUG USE, YOU BELIEVE UNTIL WHEN HE WAS 16, HE WAS SENT TO THE SEED PROGRAM, BECAUSE THE NEIGHBORS DOWN THE STREET TOLD MRS. WALTON THAT --
DOES THE PSI STATE WHERE THAT INFORMATION CAME FROM? BECAUSE THE TRIAL JUDGE, FROM WHAT I READ IN THE TRANSCRIPT, SAYS THAT INFORMATION COMES FROM WALTON. WHERE DOES THAT COME FROM THE PSI?
IN 1991, IT WAS SUBMITTED INTO THE RECORD ON APPEAL FROM THE EVIDENTIARY HEARING IN 1991. I AM NOT SURE. IT SAYS FAMILY MARITAL MILITARY, AND IT LISTS SOME OF THE RECORDS THAT WERE AVAILABLE THAT, OF COURSE, MR. O'LEARY NEVER BOTHERED TO READ OR ADDRESS, BUT THE QUESTION IS, IF HE DIDN'T HAVE THE RIGHT QUESTIONS TO ASK, IF HE DIDN'T KNOW TO ASK WAS THERE ANY SORT OF DOG PROBLEM, WAS THERE, DID -- OF DRUG PROBLEM, DID YOU HAVE ANY SORT OF PROBLEM BESIDES SMOKING MARIJUANA? HOW IS IT THAT POSTCONVICTION COUNSEL FOUND ALL THIS EVIDENCE? BECAUSE WE KNOW HOW TO ASK ALL THE RIGHT QUESTIONS. MR. O'LEARY DIDN'T KNOW HOW TO ASK THE RIGHT QUESTIONS. HE DIDN'T INVESTIGATE. HE DIDN'T OBTAIN, DIDN'T EVEN READ THESE RECORDS WHICH WERE IN HIS FILE.
DID HE TESTIFY AT THE SUBSEQUENT EVIDENCIARY HEARING, MR. ON LEERY?
SECOND EVIDENTIARY HEARING? YES, BUT THAT WAS ONLY RELATED TO THE BRADY INFORMATION.
WHAT DID HE TESTIFY TO?
HE DECEMBER TESSFIED IN 1991 THAT -- HE TESTIFIED IN 1991 THAT IT DIDN'T OCCUR TO HIM TO OBTAIN MR. WALTON'S SCHOOL RECORDS. MR. WALTON DIDN'T MENTION ADDICTION TO HIM, SO HE DIDN'T THINK THERE WAS A PROBLEM. HE DIDN'T BOTHER TALKING TO THE SISTER, KIMBERLY WALTON, WHO WAS IN THE SAME SEED PROGRAM WITH MR MR. WALTON. IT WAS HER TESTIMONY THAT WAS PRESENTED AT THE EVIDENTIARY HEARING IN 1991 THAT EXPLAINED THE NATURE OF THIS EXPERIMENTAL PROGRAM AND HOW DAMAGING IT WAS TO PEOPLE WHO WENT THROUGH THE PROGRAM.
BUT YOU SEE THE PROBLEM THAT YOU RUN INTO WITH THIS, AND THAT IS THAT YOU HAVE A FAMILY CON VAIING THE -- CONVEYING THE PICTURE TO A LAWYER THAT THERE IS NO PROBLEMS AND YOU ALSO HAVE THE LAWYER SAYING THAT IS A DOUBLE-EDGED SWORD IN PINELLAS COUNTY IS THAT YOU DON'T PUT ON DRUG INFORMATION, SO WHERE DOES THAT TAKE US? I UNDERSTAND BECAUSE ARE SAYING THAT WE DON'T HAVE ALL OF THIS DRUG BACKGROUND, BUT DOES THAT NOT COME FROM PEOPLE WHO ARE INVOLVED IN IT? THAT IS WHERE THE LAWYER STARTS?
WELL, CERTAINLY, BUT HE ONLY RELIED ON MR. WALTON WHO, WE ALL KNOW AND WE HAVE ALLEGED THAT MR MR. WALTON IS BRAIN-DAMAGED, MAY NOT BE THE BEST INDICATION OF, CERTAINLY HE IS AVAILABLE TO GIVE INFORMATION AND WITNESSES, BUT YOU DON'T ONLY RELY ON MR. WALTON. HE, ALSO, TALKED TO HIS MOTHER WHO, ADMITED IN 1991, THAT SHE DIDN'T KNOW HALF OF MR. WALTON'S DRUG PROBLEMS, SO THEN YOU GO TO THE OTHER SIBLINGS, AND FIND OUT FROM THEM. YOU GO TO THE STEPFATHER, WHO WAS AVAILABLE --
SIBLINGS. IS THE CORRECT CLEAR THAT IT INDICATES THAT IT WAS TOLD TO THE LAWYER THAT THEY ARE UNAVAILABLE AND DON'T WANT TO PARTICIPATE?
IT WAS TOLD TO THE LAWYER.
WHERE IS IT IN THE RECORD?
THE TWO SISTERS, QUOTE, DIDN'T SEEK ME OUT. SO THE TWO SISTERS RELIED ON MR. ON LOOER I TO COME FORWARD -- ON MR. O'LEARY TO COME FORWARD WITH WHAT LITIGATION IS -- MITIGATION IS, AND HOW DOES HE KNOW WHAT MIGHT SGATION?
HOW DOES IT -- MITIGATION?
HOW DOES IT RELATE TO MR. WALTON'S BEING A FOLLOWER OR A LEADER AND WHETHER HIS DEFENSE ATTORNEY THOUGHT THAT THAT WAS A STRATEGY THAT HE DID ATTEMPT --
HE DID ATTEMPT TO PURSUE SOME OF THE LIMITED TESTIMONY THAT HIS COWORKERS SAID THAT HE WAS A GOOD WORKER AND DIDN'T APPEAR TO BE VIOLENT, AND I THINK THE LYNN SHAMBRA TESTIFIED, A THIRD WITNESS, TESTIFIED THAT HE DIDN'T SHOW ANY VIOLENCE AND APPEARED TO BE A FOLLOWER, BUT THAT WAS THE EXTENT OF IT.
DID HE INVESTIGATE ANY MENTAL HEALTH MITIGATION? DID HE HAVE HIM EVALUATED?
NO. NOTHING.
WHAT WAS THE REASON THAT MR. O'LEARY DIDN'T DO THIS?
HE DIDN'T SEE ANY PROBLEM WITH MR. WALTON.
IN FAIRNESS TO THE TESTIMONY, HE SAID I DON'T WANT TO LEAVE THE IMPRESSION THAT HE SAT THERE IN THEIR PRESENCE, WAITING FOR THEM TO SAY SOMETHING. YOU ASKED THEM QUESTIONS, DIDN'T YOU? YES, AND EVERY QUESTION YOU COULD THINK OF CONCERNING INFORMATION AND BACKGROUND? YES. SOMETHING GENERAL, COULD BE SPECIFIC. YES. BUT YOU ASKED QUESTIONS AND HAD EXPECTED THAT WALTON WOULD HAVE COME FORWARD WITH THESE DRUG PROBLEMS, KNOWN ABOUT BRAIN DAMAGE, AND HE SAYS, IN MY OWN MIND, YES.
I AM NOT SURE HOW FAMILY MEMBERS ARE SUPPOSED TO KNOW ABOUT BRAIN DAMAGE, IF THE DEFENSE ATTORNEY DOESN'T KNOW ABOUT BRAIN DAMAGE. THE DEFENSE ATTORNEY SAID HE DIDN'T PRESENT ANY EVIDENCE OF MENTAL HEALTH PROBLEMS BECAUSE HE DIDN'T SEE ANY PSYCHOSIS, BUT BRAIN DAMAGE DOESN'T NECESSARILY MEAN PSYCHOSIS. BRAIN DAMAGE CAN MEAN A NUMBER OF THINGS, AND A MENTAL HEALTH EXPERT WHO IS CALLED, IF THERE IS NO MENTAL EVIDENCE AVAILABLE, A MENTAL HEALTH EXPERT CERTAINLY CAN HELP IN FINDING MITIGATION.
YOUR ATTACK UNDER STRICKLAND, IS ON THE FIRST PRONG HERE. IS THAT CREATE?
I THINK THE-SEW THAT CORRECT?
I THINK THE PREJUDICE HERE WAS THAT THE JURY CAME BACK 9-TO-3.
BUT THE MAJOR ATTACK IS THAT NO REASONABLE LAWYER WOULD HAVE FAILED TO DO THIS INVESTIGATION.
THAT'S CORRECT.
NOW, IN THAT, DO WE LOOK THROUGH, IT APPEARS TO ME, FROM READING WHAT JUDGE DOWN I SAID -- JUDGE DOWNY SAID, THAT HE WAS LOOKING THROUGH THIS THROUGH THE LENS OF A 1986 LAWYER, RATHER THAN A 2002 LAWYER. DOES, IS THAT THE CORRECT LENS TO LOOK AT?
NO. JUDGE DOWNY, NO, I DON'T BELIEVE SO. I THINK JUDGE DOWNY SHOULD HAVE LOOKED AT THIS IN 1991, WITH THE STANDARD, WHAT IT WAS WHEN HE HAD IT BEFORE HIM IN 1991.
BUT WHEN DID THE SENTENCING TAKE PLACE?
1986.
AND THAT IS, WHAT WE ARE TRYING TO EVALUATE, IS HOW THE LAWYER PERFORMED AT THAT POINT IN TIME. ISN'T THAT RIGHT?
THAT'S CORRECT. THAT'S CORRECT. THAT'S CORRECT.
THAT IS WHAT JUDGE DOWNY SAID SAID.
WELL, IF YOU WANT TO GO THROUGH, THEN JUDGE DOWNY, IN HIS JOB, WAS TO EVALUATE UNDER KILS AND GUNSBY. HE WAS -- ANKIELS AND GUNSBY. HE WAS SUPPOSED TO -- IN KILES AND GUNSBY. HE WAS SUPPOSED TO LOOK AT WHAT HAPPENED IN 1989, WHEN WE PRESENTED ADDITIONAL EVIDENCE --
BUT ON THE FIRST PRONG, LET'S MAKE SURE WE ARE NOT MIXING UP TWO THINGS. ON THE ISSUE OF WHETHER THERE WAS INEFFECTIVE ASSISTANCE IN THE PENALTY PHASE, IT IS WHETHER WHAT PEOPLE ARE DOING IN 2000, WE HAVE GOT TO BE LOOKING AT WHAT A REASONABLY COMPETENT DEFENSE ATTORNEY WOULD DO IN 1986. CORRECT? YOU WOULD AGREE THAT THAT IS THE RELEVANT TIME PERIOD, AND SO WHAT EVIDENCE WAS THERE THAT, TO THAT ANY REASONABLE ATTORNEY, BACK IN THE MID80s, WOULD HAVE, AT THE VERY LEAST, SEEN THAT THIS GUY WAS IN A SEED PROGRAM AND SAID WHAT IS GOING ON? I BETTER LOOK AT THE RECORDS.
THAT'S CORRECT.
BUT WHAT DO WE, HOW DO WE ASCERTAIN THAT STANDARD, NOW, IN 2002?
I THINK THE SAME STANDARD. STRICKLAND WAS OUT.
BUT AS FAR AS THE MEASURE OF WHERE THE COMPETENCE IS, PENALTY PHASE, PRESENTATIONS HAVE BECOME MORE AND MORE SOPHISTICATED, OVER THE LAST 20 YEARS T THIS IS A PERSON THAT THE DEFENSE -- 20 YEARS. THIS IS A PERSON THAT THE DEFENSE ATTORNEY DIDN'T, HE DID SOME INVESTIGATION, CORRECT?
I DON'T KNOW IF YOU CAN CALL IT INVESTIGATION. HE SPOKE TO TWO FAMILY MEMBERS AND CALLED A CO-WORKER EVENT DIDN'T HIRE AN INVESTIGATOR, DIDN'T OBTAIN OF THE RECORDS THAT DEFENSE ATTORNEYS DO IN THESE CASES. HE DIDN'T GO BEYOND WHAT MR. WALTON TOLD HIM AND WHAT MRS. WALTON TOLD HIM. IF THAT IS INVESTIGATION, THEN I SUPPOSE HE DID.
WHAT EVIDENCE WAS THERE, IN 1986, THAT YOU ARE CLAIMING NOW THAT, THE RECORD DEMONSTRATES, WAS THERE TO BE FOUND BY THE LAWYER BUT THAT THE LAWYER DID NOT FIND?
THE SAME EVIDENCE THAT WAS FOUND IN 1991, THAT MR. WALTON HAD BRAIN DAMAGE, THAT MR. WALTON CAME FROM A DYSFUNCTIONAL FAMILY THAT, MR. WALTON --
WHERE IS THE BRAIN DAMAGE INFORMATION IN 1986?
IT IS IN MR. WALTON. NOBODY EVALUATED THAT.
WHERE IS THE RECORD OF THAT THAT IS MISSING? I THINK THAT WAS THE QUESTION.
WELL, HE DIDN'T DO IT, AND SO HOW DO YOU KNOW?
WHERE WAS THE RECORD OF IT THAT THE LAWYER SHOULD HAVE GONE TO, TO FIND THIS BRAIN DAMAGE? WHERE SHOULD THE LAWYER HAVE GONE?
I SHOULD HAVE HIRED AN EXPERT EXPERT.
BUT, AGAIN, WHERE WAS THE RECORD OF THE BRAIN DAMAGE?
FROM IS NOT OFTEN, BRAIN DAMAGE CAN BE VERY SUBTLE. BRAIN DAMAGE DEALS WITH HOW PEOPLE RELATE TO OTHER PEOPLE, HOW PEOPLE MAKE DECISIONS.
YOU ARE SAYING THE STANDARD IN ALL OF THE EVIDENCE IS THAT HE BEHAVED NORMALLY AND WAS A GOOD WORKER AND THAT HIS FAMILY TOLD THE LAWYER NOTHING IS WRONG WITH HIM. HE IS FINE. SO THE STANDARD MAY BE YOU ARE SUPPOSED TO HAVE THE EXPERT TEST HIM, BUT THERE IS NO HOSPITAL RECORD OR ANYTHING LIKE THAT, IS THERE?
BRAIN DAMAGE IS A VERY SUBTLE THING. BRAIN DAMAGE IS NOT SOMETHING THAT YOU PUT HIM INTO A SORT OF MACHINE AND SAY, WELL, WE HAVE BRAIN DAMAGE. IT DEALS WITH --
I HIM JUST TRYING TO DETERMINE, MA'AM, IF THERE IS A RECORD, SOME MEDICAL DOCUMENTATION EXISTING IN 1986, THAT THIS PERSON HAD BRAIN DAMAGE, THAT THE LAWYER DIDN'T GO FIND?
IF HE HAD HIRED A MENTAL HEALTH EXPERT.
SO THE ANSWER IS, NO, IT WAS NOT. YOU NEEDED AN EXPERT TO GIVE AWE OPINION TO TELL YOU THAT HE HAD IT.
THAT'S CORRECT.
SOUGHT STANDARD WAS IN '86 THAT -- SO, THE STANDARD WAS IN '86 THAT YOU HAD TO HIRE A MENTAL HEALTH EXPERT, WITHOUT REGARD TO THE SUBJECTIVE OR OBJECTIVE BEHAVIOR OF THE CLIENT. THAT WOULD BE OUR STANDARD. IT IS WHAT WE WOULD BE SAYING THEN.
I THINK YOU MENTIONED THAT MR MR. WALTON APPEARED FINE THAT, THERE IS NOTHING THERE THAT MR. WALTON APPEARED FINE, BUT IF ANYBODY HAD LOOKED, YOU KNOW, WHATEVER MITIGATION HE WAS GOING TO PRESENT WASN'T INCONSISTENT WITH MR. WALTON BEING NONAGGRESSIVE OR MR. WALTON BEING NONVIOLENT AND MR. WALTON BEING A GOOD WORKER. THE INFORMATION WAS CONSISTENT WITH THAT, PLUS IT WAS MUCH MORE INFORMATION, TO GIVE TO THE JURY TO SAY THIS IS THE PICTURE OF WHAT MR. WALTON IS. THERE WAS NOTHING INCONSISTENT.
CHIEF JUSTICE: YOU ARE INTO YOUR REBUTTAL TIME.
THANK YOU. MAY IT PLEASE THE COURT. KIM HOPKINS FOR THE STATE OF FLORIDA. I THINK HE IS ESSENTIALLY WHAT WE HAVE HEREANT LATEST OF THE INITIAL AND LATEST OF THE EVIDENTIARY HEARINGS WAS THE DISAGREEMENT WITH THE DEFENSE THEORY EMPLOYED BY TRIAL COUNSEL DOWN BELOW, AND WHILE THIS MAY HAVE BEEN HIS FIRST DEATH-PENALTY CASE AT THE TIME, HE HAD BEEN AN ATTORNEY FOR 13 YEARS IN 1986, SO HE WAS A SEASONED DEFENSE ATTORNEY.
IN TERMS OF JUDGING THE DEFENSE ATTORNEY'S BEHAVIOR, AS FAR AS, OR CONDUCT, IF WE SIMPLY LOOK AT THE NARROW ISSUE, WELL, HE DIDN'T HIRE A MENTAL HEALTH MITIGATION MAY REACH ONE CONCLUSION, BUT SHOULD WE, OR IS IT APPROPRIATE TO, ALSO, LOOK AT THE FACT, IN TERMS OF LOOKING AT THE WHOLE PICTURE, THAT THESE WERE VERY, THESE WERE THESE CURSORY JURY INSTRUCTIONS ON AGGRAVATORS, WHICH, BECAUSE THIS DEFENSE ATTORNEY DIDN'T OBJECT TO THEM, THERE IS NO CLAIM PRESERVED, THAT HE OPENED THE DOOR BIAS EARTHING THE MITIGATOR OF NO -- DOOR, BIAS EARTHING THE THE DOOR, BY ASSERTING THE DOOR OF NO CRIMINAL HISTORY, THAT HE OPENED THE DOOR THERE, AND UNDER QUESTIONING OF REMORSE AND THE QUESTION CAME IN ABOUT LACK OF REMORSE, AND THEN HE OPENED THE DOOR THAT LED TO THE ADMISSION OF THE AFFIDAVIT OF THE CODEFENDANT, ASSUMING THAT THESE ARE THING THAT IS OCCURRED, AND THAT THAT PREJUDICED MR. WALTON WALTON'S PENALTY PHASE, DO WE LOOK AT THE ENTIREITY OF MR. O'LEARY'S CONDUCT, TO SEE IF HE WAS FUNCTIONING AS A REASONABLY REASONABLY-COMPETENT DEFENSE ATTORNEY SHOULD HAVE BEEN?
CERTAINLY, WITH RESPECT TO THIS COURT'S DECISION, THE, YOU ARE TO LOOK CUMULATIVELY AT WHAT OCCURRED, BUT HERE, TAKING, DESPITE THE FACT THAT THEY CAN MAKE A LAUNDRY LIST OF ALLEGATIONS OF INEFFECTIVE ASSISTANCE, THAT DOES NOT MAKE ANY OF THEM TRUE, AND ALSO THERE ARE LEGAL ARGUMENTS WITH RESPECT TO WHETHER EACH INDIVIDUAL ONE WOULD BE HARMLESS OR NOT, AND THE STATE'S POSITION IS THAT NONE OF THESE CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL THAT THEY HAVE SET FORTH WOULD DEMONSTRATE OVERALL, CUMULATIVELY OR INDIVIDUALLY, THE TYPE OF PERFORMANCE WHICH WOULD JUSTIFY A NEW TRIAL.
ISN'T THE WHOLE REASON THAT THIS DEFENDANT IS, NOW, ESPECIALLY WITH THE CODEFENDANT HAVING HIS DEATH SENTENCE REDUCED TO LIFE, THAT HE IS A SUBJECT TO THE DEATH PENALTY NOT BEING THE SHOOTER, IS BECAUSE IT ALL HINGES ON THAT MR. WALTON WAS THE MASTERMIND, CORRECT?
YES. CORRECT.
AND SO TESTIMONY ABOUT HIS MENTAL HEALTH STATE THAT WOULD UNDERMINE THAT MR. WALTON, REALLY, WOULD HAVE BEEN OR COULD HAVE BEEN THE MASTERMIND, WOULD BE SORT OF CRITICAL TO HOW WE ARE, SOMEBODY WOULD EVALUATE WHETHER MR. WALTON, AS THE SHOOTER, SHOULD KNOW GET -- SHOULD, WHETHER THIS WAS A ROBBERY GONE BAD AND SOMEONE ELSE DID THE SHOOTING, AND THERE WAS NEVER ANY INTENT TO KILL THESE VICTIMS THAT, THAT BECOMES SORT OF A PRETTY CRITICAL FACTOR IN THIS CASE. TO SAY IT IS HARMLESS ERROR, THAT WOULD BE --
NOT WITH RESPECT TO THAT PARTICULAR ISSUE THAT YOU ADDRESSED THERE. I THINK THEORETICALLY THAT MAYBE THE CASE, BUT WHEN YOU LOOK AT THE EVIDENCE THAT WAS ACTUALLY PRESENTED BY THE DEFENSE, WE HAVE HAD A TRIAL, A RESENTENCING AND TWO EVIDENTIARY HEARINGS AT THIS TIME POINT. THERE IS NO ADMISSIBLE EVIDENCE BEFORE THIS COURT TO SHOW ANYTHING TO UNDERMINE THE IDEA THAT HE WAS THE MASTERMIND. THERE WAS NO EVIDENCE WHATSOEVER IN THIS RECORD THAT THIS DEFENDANT IS BRAIN DAMAGED, FROM THEIR DEFENSE EXPERT OR FROM THE STATE'S, SO THE ASSERTIONS THAT THEY MAKE, WITH RESPECT TO THE MAG -- THE MAGNITUDE OF THOSE CLAIMS ARE FALSE.
YOU ARE SAYING THAT, YOU LOOK AT THE ENTIRE EVIDENTIARY HEARING, THAT REALLY ALTHOUGH THERE IS ASSERTIONS OF BRAIN DAMAGE THAT, WE REALLY SHOULD DISCOUNT ANYTHING THAT WOULD SHOW THAT HIS PERSONALITY WAS OTHER THAN AS ORIGINALLY PRESENTED?
WELL, I WOULD SAY THAT THERE IS NOTHING TO SHOW THAT HIS PERSONALITY IS DIFFERENT THAN AS WAS ORIGINALLY PRESENTED BY DEFENSE ATTORNEY. IT SIMPLY DOES NOT EXIST THERE. IS NOTHING THERE. WHEN YOU LOOK AT THEIR OWN DR. FLEMING'S TESTIMONY, AT NO POINT DOES SHE SAY THAT THE DEFENDANT IS BRAIN DAMAGED. ALL OF HER TESTING, ALL OF HER TESTING, OTHER THAN A FINGER TAPPING TEST THAT CAME OFF A FEW POINTS OFF, WAS NORMAL.
SO YOU WOULD SAY THAT THEY DON'T REALLY, THEY FELT SECOND PRONG.
I THINK THEY FELT BOTH PRONGS BUT WITH RESPECT TO THE QUESTION YOU ASKED ME, I THINK THAT, IF YOU WERE TO SAY HOW THIS COULD ULTIMATELY EFFECT ON A CUMULATIVE BASIS, THAT IT JUST ISN'T THERE. THERE IS NO ADMISSIBLE EVIDENCE BEFORE THIS COURT, TO CHANGE ANYTHING OTHER THAN THE THEORY THAT WAS PRESENTED BELOW BY THE DEFENSE ATTORNEY, AND I THINK FOR THEM TO COME UP, THEY HAVE NOW PROVIDED AN ALTERNATIVE DEFENSE TO WHAT WAS PRESENTED, AND CLEARLY THIS COURT IS AWARE THAT A DISAGREEMENT WITH STRATEGY OF THAT NATURE IS NOT ALONE, ENOUGH TO WARRANT A NEW TRIAL UNDER STRICKLAND, BUT MORE IMPORTANTLY, THE ALTERNATIVE STRATEGY THAT THEY PROVIDE IS NOT PROBABLE, IS NOT PLAUSIBLE, AND IS NOT SUPPORTED BY ANY ADMISSIBLE EVIDENCE BEFORE THIS COURT, SO TO SAY THAT SOMEHOW DEFENSE COUNSEL MADE AN UNREASONABLE DECISION BY PURSUING THE STRATEGY THAT WAS SUPPORTED BY THE EVIDENCE IS NOT WELL TAKEN BY THE DEFENSE. WITH RESPECT TO THE EVIDENCE THAT WAS FOUND, COUNSEL MENTIONS THAT THERE WERE 30,000 PAGES OF RECORDS THAT EVENTUALLY CAME FORWARD, IN THESE SOME FIVE YEARS OF PUBLIC RECORDS LITIGATION. I WOULD POINT THE COURT TO THE SUPPLEMENTAL ANSWER BRIEF ON PAGE 14, WHERE I HAVE A QUOTE FROM THE TRIAL COURT'S ORDER, WHICH NARROWS DOWN EXACTLY WHAT WAS FOUND TO BE ALLEGEDLY NEWLY-DISCOVERED EVIDENCE IN THESE 30,000 PAGES OF DOCUMENTS. WHILE THAT MAY SOUND OVERWHELMING, WHAT YOU ARE LEFT WITH IS NOTHING NEW FOR THE DEFENSE. THEY WERE AWARE OF THIS INFORMATION THROUGH THE DEFENDANT'S OWN STATEMENTS TO THE POLICE. OBVIOUSLY TO HIS ATTORNEY. AND THROUGH THE DEPOSITION OF ROBIN FERDELLA. THE PERSON THAT THEY ARE TRYING TO PLACE THE BLAME ON,000, AS -- ON NOW, AS MASTERMINDING THE CRIME, SHE WAS ONE OF THE VICTIM'S WIFE, STILL MARRIED TO ONE OF THE VICTIMS AND, ALSO, ONE OF THE OTHER VICTIMS WAS HER BROTHER, SO WE ARE SUPPOSED TO BELIEVE THAT THIS INDIVIDUAL MASTERMIND ADD CRIME WHERE THE DEFENDANT AND THREE OTHER CODEFENDANTS GO TO THIS HOUSE AND MURDER HER HUSBAND, HER BROTHER, AN UNKNOWN INDIVIDUAL, ALL WHILE HER SON IS LOCKED IN THE BATHROOM OF THIS HOUSE. THIS IS THE THEORY THAT THEY HAVE COME UP WITH.
WOULD YOU JUST HELP ME ON WHAT WAS THE EVIDENCE THAT THIS WAS, THAT THEY HAD SET OUT TO KILL THE INDIVIDUALS THAT WERE, THAT MR. WALTON HAD --
THE EVIDENCE OF PREMEDITATION COMES FROM THE DEFENDANT'S OWN STATEMENTS, WITH RESPECT TO IT WAS BY HIS OWN ADMISSION, HE MASTERMINDED THE PLOT TO ROB THESE INDIVIDUALS OF MONEY AND DRUGS. HE IS THE ONE THAT KNEW WHERE THESE PEOPLE LIVE. HE DROVE THE CODEFENDANTS TO A LOCATION WITH LOADED WEAPONS, WITH MASKS TO CONCEAL THEIR IDENTITY, WITH GLOVES TO CONCEAL THAT.
THE FELONY, SO, THEN, THE THEORY WAS FELONY MURDER.
IT COULD BE BASED ON THAT, BUT THAT IS NOT ALL WE HAVE. WE, ALSO, HAVE STATEMENTS THAT HE MADE TO A FRIEND SOME TWO WEEKS PRIOR TO THE MURDERS, SAYING THAT HE WAS HAVING PROBLEMS WITH STEVEN FERDELLA, THE WIFE, THE HUSBAND OF ROBIN, AND THE ONLY WAY TO DEAL WITH THESE PROBLEMS WAS TO WASTE STEVEN FERDELLA, SO WE HAVE THAT AS A CLEAR INDICATION OF A PROBLEM ON THE PART OF THE DEFENDANT. THAT ALONG WITH GOING FORWARD AS AN ALTERNATIVE POSITION PRESENTED IN FELONY MURDER, IS CORRECT, YOUR HONOR.
WOULD YOU GO AND A DRESS SOME OF THE THINGS THAT -- AND ADDRESS SOME OF THE THING THAT IS DID EXIST AT THE TIME OF MAKING THE JURY RECOMMENDATIONS. SUCH AS THE SEED. WHAT IS THE DEPARTMENT OF THAT KIND OF RECORD AND THINGS THAT ACTUALLY EXISTED THAT WERE NOT PRESENTED. SHARE WAS AND WHY YOU THINK THAT THAT DOESN'T OVERRIDE SOME OF THE OTHER CONSIDERATIONS THAT I HAVE PREVIOUSLY MENTIONED?
CORRECT. I THINK THAT, WITH RESPECT TO THE DRUG USAGE, THE SEED PROGRAM ITSELF, MAY NOT HAVE BEEN KNOWN TO THE DEFENSE COUNSEL AT THE TIME OF THE INITIAL TRIAL AND RESENTENCING. WHAT HE DID HAVE FROM THE MOTHER THE MOTHER ULTIMATELY TESTIFIES, EVEN AT THE EVIDENTIARY HEARING, THAT SHE DIDN'T KNOW OF ANY DRUG USAGE. THE STATE DOES NOT DISPUTE THAT. WHAT SHE DID KNOW, I AM SORRY, FROM THE POINT OF THE SEED ON. SHE CLEARLY KNEW THAT HER SON HAD A PROBLEM. THAT IS WHY THE SON WAS TAKEN FROM HER. HE WAS NOT TAKEN UNBEKNOWNST OF HER, OUT OF HER NOME HOME, AND PLACED IN THE SEED PROGRAM AS A TEENAGER.
WHAT THE NATURE OF THE EVIDENCE DEVELOPED?
I DON'T THINK THAT IT IS DETAILED DEVELOPED. THE SISTER HAD NO INDICATION OF HIS DRUG USAGE AND CERTAINLY THERE IS NO RECORD, CERTAINLY PRIOR TO SEED, OF THE FAMILY MEMBERS KNOWING ANYTHING OF THE FIRSTHAND BASIS, AS FAR AS PARTAKING OF DRUGS WITH THE DEFENDANT OR ANYTHING OF THAT NATURE, AND WHAT IS IMPORTANT TO NOTE WITH RESPECT TO THE DRUG ISSUE IS THAT, DURING THIS GUILT PHASE, IT WAS GOING FORWARD WITH THE THREE OTHER CODEFENDANTS THAT WERE INVOLVED WITH, THIS SO MANY OF THE DEPOSITIONS TAKING PLACE MUCH MULTIPLE ATTORNEYS. EACH -- PLACE WERE MULTIPLE ATTORNEYS, EACH ATTORNEY FOR EACH CODEFENDANT, AND ANYTHING THAT THE WITNESSES KNEW, AND THEY DEPOSED MANY OF THE ACQUAINTANCES OF THE DEFENDANT, HIMSELF, AND QUESTIONS WERE ASKED ABOUT THE DRUG USAGE AT THAT POINT, AND THERE IS NO EVIDENCE ANYWHERE IN THE RECORD, AND SPECIFICALLY, TOO, ROBIN FERDELLA WAS DEPOSED PRIOR TO THE GUILT PHASE WRKTS DEFENSE ATTORNEY PRESENT AS WELL AS THE OTHERS AND SHE WAS THE DEFENDANT'S GIRLFRIEND AT THE TIME, AND SHE KNEW OF NO OTHER TYPE OF DRUG USAGE OTHER THAN MARIJUANA, SO MR. O'LEARY'S BELIEF AT THE TIME AND, I WOULD SUBMIT, WHAT IS ACTUALLY TRUE TO THIS DATE, IS THERE WAS NOTHING MORE THAN THAN AS YOU MENTIONED WHAT THE BOYS IN HIS GROUP WERE DOING, SMOKING SOME POT AND DRINKING SOME BEER.
HOW ABOUT WERE THEY ABLE TO BRING OUT ANY EPISODES OF OBJECTIVE BEHAVIOR, WHERE IT WOULD PUT SOMEBODY ON THE ALERT THAT, HEY, THERE IS A PROBLEM WITH THIS PERSON, THAT THE CCR, GIVE ANY INFORMATION OF EVIDENCE TOWARD THAT?
NO, YOUR HONOR, I AM SORRY. ACTUALLY TO THE CONTRARY. THERE WAS ALL EVIDENCE THAT THIS PARTICULAR INSIDE DENT THAT RESULTED -- INCIDENT THAT RESULTED IN THE MURDER WAS AN ANOMALY IN HIS PERSONALITY, AND IN FACT THE DEFENSE TESTIFIED THAT HE WAS NORMAL UP YOU BELIEVE UNTIL THIS ONE PARTICULAR EPISODE, AND THAT IS WHEN YOU GET BACK TO THERE WAS NO BRAIN DAMAGE, EITHER, AND I WANT TO MAKE THAT VERY CLEAR TO THE COURT THAT THERE IS ABSOLUTELY NOTHING IN THE RECORD TO SUPPORT WHAT THEIR ON OBJECTION IS THAT HE IS -- WHAT THEIR OBJECTION IS THAT HE IS ACTUALLY BRAIN DAMAGED. THE DEFENSE EXPERT WENT THROUGH AND SAID THESE ARE INDICATORS OF BRAIN DAMAGE OR LEARNING DISABILITIES. SHE NEVER MAKES IT CLEAR THAT HE IS ULTIMATELY BRAIN DAMAGED.
COMING BACK TO THIS, WHAT WAS THE STRONGEST EVIDENCE IN THE RECORD AND WHAT WAS THE STATE'S THEORY, INSOFAR AS THE CULPABILITY OF THIS DEFENDANT, IN OTHER WORDS, IN EITHER THE GUILT OR THE PENALTY PHASE, AS FAR AS WHAT WAS THE STATE'S THEORY, AS FAR AS THIS DEFENDANT IS CONCERNED? HIS ROLE, AND THEN WHAT WAS THE STRONGEST EVIDENCE OF THAT?
THIS DEFENDANT, THE STATE'S THEORY WAS THAT HE, IN FACT, WAS THE ONE THAT MASTERMINDED A PLAN TO ROB THESE VICTIMS OF DRUGS AND MONEY, AND THAT PLANED, ALSO AS A PART OF THIS, TO COMMIT THE MURDER OF STEVEN FERDELLA.
IN OTHER WORDS THAT HE INSTIGATED A PLAN TO MURDER THEM AS WELL.
CORRECT.
AND WHAT WAS THE EVIDENCE THAT PART OF THE PLAN WAS TO MURDER THEM?
I WOULD POSIT TO BEGIN WITH IT WAS A PLANNED FELONY MURDER AS WELL. BUT WITH REFERENCE TO YOUR QUESTION, PRIMARILY A CONVERSATION THAT HE HAD WITH MR MR. JENKINS, I FORGET HIS FIRST NAME THAT, THE ONLY WAY HE COULD SOLVE HIS PROBLEMS WITH STEVEN FERDELLA WAS TO WASTE THE VICTIM.
THIS WAS A PROBLEM WITH THE GIRLFRIEND'S HUSBAND, IF I UNDERSTAND YOU CORRECTLY.
YES.
THAT WAS SORT OF OFTANGEX-TANGENTIAL, WAS IT NOT, TO ROB AND -- THAT WAS SORT OF TANGENTIAL, WAS IT NOT, TO ROB AND I GUESS WHAT I AM SAYING OUT THERE IS SORT OF A CONFUSED FACTUAL PICTURE, WHERE IT APPEARS THAT THE SHOOTER, SORT OF EVERYBODY AGREES THE SHOOTER WAS SOMEBODY ELSE. IS THAT CORRECT?
THERE ARE VARIOUS ASSORTED STORIES ABOUT WHO WAS THE SHOOTER.
THE DEFENDANT WAS ORIGINALLY SENTENCED TO THE DEATH PENALTY, BUT NOW HAS HAD THAT REDUCED TO LIFE?
I WOULD LIKE TO POINT OUT THAT THERE WERE FOUR CODEFENDANTS. ONE PLED TO LIFE. ALL THREE OTHERS, INCLUDING THIS DEFENDANT, RECEIVED THE DEATH PENALTY. THE ONE THAT WAS, IS NO LONGER HAS A DEATH PENALTY, IT WAS SIMPLY REVERSED BECAUSE THE TRIAL COURT DID NOT ENTER AN ORDER TIMELY. IT HAS NOTHING TO DO WITH --
I UNDERSTAND --
-- THE PROPORTIONALITY.
I AM JUST SEARCHING FOR A FACTUAL --
THERE IS OTHER EVIDENCE OF PREMEDITATION, WITH RESPECT TO THIS INDIVIDUAL, BECAUSE ONCE THEY GET TO THE HOME, THEY TIE-UP EACH OF THE INDIVIDUALS, VICTIMS, AND THEY HIDE THE SON IN THE BATHROOM, SO THAT HE DOESN'T SEE ANYTHING THAT IS GOING TO GO ON. THE DEFENDANT IS THE ONE THAT TURNS THE TELEVISION UP AS LOUD AS IT WILL GO, SO THAT NO NEIGHBORS CAN HEAR ANYTHING, AND HE IS THE ONLY ONE THAT IS IDENTIFIED. THEY ARE WEARING MASKS DURING THE COURSE OF THIS, AND HE IS THE ONLY ONE THAT IS IDENTIFIED. ALL THE STATEMENTS AGREED THAT ONE OF THE VICTIMS SAID JD, IS THAT YOU, SO THAT IS ANOTHER BASIS, AN ALTERNATIVE BASIS, FOR THE PREMEDITATION, IN AND OF ITSELF, SO THAT IS THE SUM AND SUBSTANCE --
WHAT WAS THE PROOF AS TO WHO ACTUALLY DID THE SHOOTINGS? WAS THERE PROOF OF THAT?
IT IS IMPORTANT NOT TO CONFUSE WHAT THE PROOF WOULD BE, WITH RESPECT TO THE OTHER DEFENDANTS, BECAUSE OBVIOUSLY THERE WAS DIFFERENT TESTMONY AT DIFFERENT TRIALS, AND WHAT I AM TELLING --
THE RECORD THAT IS IN THIS PERSON'S CASE, THIS DEFENDANT'S CASE, WHAT IS THE EVIDENCE AS TO WHO ACTUALLY DID THE SHOOTING, IF ANY? IS THERE ANY EVIDENCE AS TO WHO ACTUALLY DID THE SHOOTING IN THE RECORD IN THIS CASE?
THE EVIDENCE IS THAT THE DEFENDANT WAS CARRYING A.357 THAT JAMMED. THE VICTIMS WERE SHOT WITH SDUNS NO -- WERE SHOT WITH SHOTGUNS NOT A .357. THE TWO DEFENDANTS STAYED IN THE HOUSE AND JEFF McCOY LEFT. HE WAS NOT PRESENT WHEN THE SHOOTINGS OCCURRED, SO HE WAS NOT A SHOOTER, SOUGHT EVIDENCE PRESENTED WAS THAT HE WAS NOT A SHOOTER. THE DEFENDANT WAS NOT A SHOOTER.
SO THE EVIDENCE THAT WAS PRESENTED WAS THAT THE DEFENDANT WAS NOT THE SHOOTER.
CORRECT.
THE THEORY WAS, THOUGH HARKS THAT HE DIRECTED THE SHOOTING. IS THAT IT?
CORRECT, AND EVIDENCE SHOWED THAT HE DIRECTED ALL THE PARTIES WHILE THEY WERE IN THE HOME. THAT HE TOLD THEM YOU PUT HIM HERE AND YOU DO. THAT.
THAT HE WAS IN CHARGE.
YES.
AND SO THE THEORY WAS THAT, EVEN IF HE DIDN'T ACTUALLY SAY "SHOOT "-OR WHATEVER, THAT HE HAD ACTUALLY CONCEIVED OF THE PLOT AND THAT HE WAS RUNNING THE SHOW INSIDE, AND THAT, REALLY, INCREASES HIS LEVEL OF CULPABILITY.
THAT'S CORRECT, AND IN ADDITION TO THAT, I WOULD POINT OUT THERE IS A QUESTION AS TO WHETHER, WHAT HAPWHEN HIS GUN JAMMED, BECAUSE HE DID HAVE A GUN -- WHAT HAPPENED WHEN HIS GUN JAMMED. BECAUSE HE DID HAVE A GUN AND HE DID ADMIT TO SHOOTING THE GUN BUT HE SAID IT MISFIRED. WHAT HE DID WAS TOLD THE POLICE, FIRST, DIFFERENT STORIES, THAT HE APPROACHED THE HOME, HE SHOT A TEST FIRE BEFORE THEY EVEN GOT IN THE HOUSE, AND THAT IS COMPLETELY ILLOGICAL, BECAUSE THEY ARE APPROACHING WITH STEALTH MASKS ON, AND THAT DOES NOT PROVIDE AN EXPLANATION FOR WHY THIS GUN WAS HIRED.
IT WOULD CREATE A LOT OF NOISE.
EXACTLY. EXACTLY. AND ALSO THE FACT THAT HE HAD TURNED THE TELEVISION UP TO MAKE SURE THE NEIGHBORS DIDN'T HEAR ANYTHING, BEFORE THE SHOTS WERE FIRED, THEN THERE IS OTHER EVIDENCE, THEN HE ALSO TOLD ANOTHER INDIVIDUAL AT SOME LATER POINT, NOT ONE OF THE INVESTIGATING OFFICERS, THAT HE SHOT INTO THE FLOOR TO SCARE THE VICTIMS, AND THAT THAT WAS WHEN THE MISFIRE OCCURRED, SO HE IS PROVIDING INCONSISTENT REPORTS OF WHY THIS MISFIRE HAPPENED.
IN SENTENCING OF THIS DEFENDANT, DID THE TRIAL COURT MAKE ANY FINDINGS OF FACT, WITH REFERENCE TO THE RELATIVE CULPABILITY OF THE FOUR PEOPLE INVOLVED?
IN THIS SENTENCING ORDER, HE DOES SAY THAT THE DEFENDANT WAS THE MASTERMIND OF THE CRIME, AND I KNOW THAT THEY RAISE AN ISSUE THAT WAS A PART OF THE FIRST 3.850, WITH RESPECT TO THE, WHETHER THE TRIAL COURT RELIED ON EVIDENCE OUTSIDE THE RECORD.
BUT IT IS THE MATSTER MIND THAT APPEARS TO BE THE CRITICAL FACTOR IN THE TRIAL JUDGE'S DETERMINATION.
YES. YES. AND IT IS WHAT THE EVIDENCE SHOWED AS WELL. I DID JUST WANT TO POINT OUT TO THE COURT, OF THE, THE INFORMATION THAT THEY CLAIM TO BE NEWLY-DISCOVERED, ROBIN FERDELLA WAS DEPOSED, AND SO SHE DID TESTIFY TO THE FACT OF THIS CIVIL TRESPASS REPORT AND THAT SHE HAD A CUSTODY DISPUTE WITH HER HUSBAND AND THAT SHE HAD FOUND HER HUSBAND IN BED WITH ANOTHER WOMAN. THAT IS PART OF WHAT THEY CLAIM TO BE NEWLY-DISCOVERED, BUT THAT WAS AVAILABLE ON THE RECORD AND O'LEARY WAS PRESENT AT THAT DEPOSITION. THAT LEAVES US WITH THE POLYGRAPH EXAMINER'S NOTES ON MRS. FERDELLA THEY KNEW A POLYGRAPH HAD BEEN TAKEN OF HER, BECAUSE THIS DETECTIVE WAS DEPOSED PRIOR TO THE FIRST TRIAL. THEY JUST DIDN'T KNOW THE OUTCOME OF THIS, AND WITH HANDWRITTEN NOTES IN LAW ENFORCEMENT FILES ATTRIBUTING THE STATEMENT TO ROBIN THAT SHE WOULD DO ANYTHING TO GET THE KIDS. IF YOU LOOK AT THAT, THAT IS IN THE RECORD. THE HANDWRITTEN NOTES ARE IN THE RECORD. THERE IS NO ONE, YOU CANNOT TELL WHO SAID THIS STATEMENT. SO WHAT YOU HAVE NOW, WHAT THEY SUBMIT SHOULD BE THE BASIS OF A WHOLE NEW THEORY OF DEFENSE IS A POLYGRAPH EXAMINATION THAT WOULD BE INADMISSIBLE, THAT SHOW SIMPLY THAT, WHILE THE EXAMINER AT THE TIME SAID THAT HE THOUGHT SHE WAS NOT BEING TRUTHFUL TO SOME OF OTHER QUESTIONS, AND THAT IS WHAT THEY ARE RELYING ON. IN THE EVIDENTIARY HEARING, HE TESTIFIED THAT THESE TEN TEN-SOMETHING YEARS LATER, THAT THAT WAS ONE OF THE FIRST POLYGRAPHS EVER DID, AND HE RESTORED SCORED HER AND -- RESCORED HER AND FELT THAT SHE HAD NO LONGER BEEN DECEPTIVE, SO HE CHANGED HIS MIND, SO TO THE EXTENT THAT THEY ARE GOING TO ARGUE INCONSISTENCY THAT, IS ESSENTIALLY WHY POLYGRAPH EXAMINATIONS SHOULD NOT BE ADMISSIBLE BEFORE THIS COURT. FINALLY, WITH RESPECT TO THE STATEMENT THAT ROBIN SAID ABOUT HER CHILDREN, THEY HAVE NO ONE TO AT ATTRIBUTE THAT STATEMENT TO. THEY HAVE BROUGHT NO ONE BEFORE THE COURT AND IT IS INADMISSIBLE TO THIS COURT TO HAVE NEWLY NEWLY-DISCOVERED EVIDENCE AND THAT IS WHAT WOULD HAVE CHANGED THE OUTCOME OR EVEN BRADY EXCULPATORY. IT IS NOT EXCULPATORY. WHAT THEY COME UP WITH IS THAT SOMEHOW ROBIN FERDELLA MASTERMINDED THIS PLOT AND DOMINEERED THESE MEN INTO COMMITTING THESE MURDERS. THAT WAS A MORE CULPABLE THEORY THAN THE THEORY THAT WAS PRESENTED, WHICH WAS, YES, THEY WENT THERE FOR THE PURPOSE OF ROBING THE INDIVIDUALS BUT THAT MR. WALTON LEFT THE HOUSE BEFORE THE SHOTS WERE FIRED. THAT IS WHAT WAS PRESENTED CONSISTENTLY THROUGHOUT THE TRIALANT PENALTY PHASE, SO TO SOMEHOW SAY THIS WOULD HAVE AFFECTED THE OUTCOME OF THE PROCEEDINGS IS CLEARLY NOT SUPPORTED BY THE RECORD. I THINK I WOULD RELY ON BRIEFS FOR THE REMAINDER OF OUR POINTS, TLLS THERE IS OTHER QUESTIONS.
CHIEF JUSTICE: THANK YOU VERY MUCH. HOW MUCH TIME DOES COUNSEL HAVE? OKAY.
JUST BRIEFLY, YOUR HONORS, IN LIGHT OF YOUR QUESTION ABOUT MR. WALTON'S CULPABILITY, THERE HAS NEVER BEEN ANY EVIDENCE THAT MR. WALTON WAS THE SHOOTER. HE NEVER SAID THAT HE WASN'T AT THE SCENE OF THE CRIME. HE NEVER SAID THAT HE WAS THERE, BUT HE HAS ALWAYS ADMITTED, ALWAYS SAID HE WAS NOT THE SHOOTER, AND THE CODEFENDANTS HAVE TESTIFIED TO THAT.
BUT THE TRIAL COURT RELIED ON HIS ROLE AS, QUOTE, THE MASTERMIND, IS THAT CORRECT?
YES, HE DOES, BUT I THINK THAT WHAT IS SO INTERESTING IS WHAT THE BRADY MATERIAL, THE BRADY INFORMATION THAT WAS UNCOVERED IN THE PUBLIC RECORDS WOULD HAVE REVEALED. THE PUBLIC RECORDS SHOWED THAT ROBIN FERDELLA WAS MORE INVOLVED HERE THAN ANYBODY EVER THOUGHT, AND THOSE RECORDS WERE SUPPRESSED UNTIL THE 1990s, 1996 1997. NOBODY LOOKED TO INVESTIGATE THAT RELATIONSHIP BETWEEN ROBIN FERDELLA AND JASON WALTON, BECAUSE THERE WAS NO INDICATION THAT ANYTHING MIGHT BEEN AMISS OR NO INDICATION THAT MR. WALTON WOULD HAVE BEEN CONTROLLED BY THIS WOMAN.
I AM HAVING TROUBLE SEEING HOW THAT PREJUDICE PRONG WOULD --
BECAUSE IF HE HAD A COMPETENT LAWYER TO LOOK INTO THE RELATIONSHIP.
WOULDN'T IT, AGAIN, SHOW, IN FACT, THAT HE WENT THERE WITH THE INTENT TO KILL THESE PEOPLE, AND --
CERTAINLY. CERTAINLY I THINK IT APPLIES LESS TO THE GUILT PHASE THAN IT DOES FOR THE PENALTY PHASE. I THINK, IF HE HAD HIRED AN INVESTIGATOR AND HAD LOOKED INTO THE RELATIONSHIP BETWEEN HIMSELF AND ROBIN FERDELLA, HE WOULD HAVE LEARNED THAT MR. WALTON WAS A FOLLOWER, WHICH WAS NOT INCONSISTENT WITH WHAT WAS ALREADY PRESENTED, THAT HERE WAS THIS AGGRESSIVE AND VERY DEMANDING WOMAN, THAT MAYBE MR. WALTON WAS CONTROLLED BY THIS WOMAN T PROVIDES AN AVENUE OF INVESTIGATION THAT NOBODY BOTHERED TO INVESTIGATE.
WHAT DID YOU PRESENT BELOW, TO DEMONSTRATE THAT?
PRESENTED THE DOCUMENTS THAT --
PRESENT BELOW TO DEMONSTRATE THAT THIS, HIS GIRLFRIEND WAS BEHIND THE KILLINGS, AND DOMINATED HIM TO HAVE HIM DO IT?
WE PRESENTED THE WITHHELD EVIDENCE FROM THE STATE. THE DOCUMENTS --
I AM NOT TALKING ABOUT CAT GORIZES --
WE BROUGHT FORWARD --
I AM TALKING ABOUT WHAT THE EVIDENCE WAS. IN OTHER WORDS WAS THERE SOMEBODY THERE THAT SAID I WAS WITH HER ONE NIGHT, AND SHE TOLD ME THAT SHE DOMINATED HER BOYFRIEND TO GO KILL HER HUSBAND?
NOT SPECIFICALLY TO THAT EXTENT, BUT PAT FLIMING -- FLEMING, IN 1991, WHO WAS THERE, WAS CALLED BACK TO LOOK AT THESE DOCUMENTS, WITH REGARD TO THE RELATIONSHIP --
WHAT DOCUMENTS ARE YOU TALKING ABOUT?
THE DOCUMENTS WHERE THE POLYGLAF WAS WAS UNTRUTHFUL, THE DOCUMENTS FROM THE SHERIFFS OFFICE THAT SAID ROBIN MAY HAVE BEEN ANGRY HERE. LOB I KNOW WAS IN A CUSTODY -- ROBIN WAS IN A CUSTODY BATTLE. ROBIN --
WAS THAT THE STRONGEST EVIDENCE BELOW THAT SHE WAS BEHIND ALL OF THIS?
THAT'S CORRECT. I WOULD ALSO LIKE TO POINT OUT TO JUSTICE LEWIS, IN A QUESTION YOU ASKED EARLIER, ABOUT WHAT WAS AVAILABLE AS FAR AS BRAIN DAMAGE. THERE IS NO ACTUAL EVIDENCE OF BRAIN DAMAGE, BUT IN 1984, AFTER MR. WALTON WAS CONVICTED AND BEFORE THE RESENTENCING, HE WAS EVALUATED BY A PRISON PSYCHOLOGIST, APRIL OF 1984 -- APRIL OF 1994, AND WHAT IT SAYS, BECAUSE MR. WALTON WAS ASKED THE QUESTIONS, SAID THAT HE HAD RUN AWAY FROM HOME AND SCHOOL AND ABUSED DRUGS AND ALCOHOL FROM THE AGE OF 12. HE USED ALCOHOL ON THE WEEKENDS, BEGAN DRINKING THREE CASES OF BEER ON THE WEEKENDS PLAUSE LITTER OF WHISKEY. HE REPORTED TO A PSYCHOLOGIST THAT HE WAS IN A DRUG TREATMENT PROGRAM AT THE AGE OF 16, INCLUDING AMPHETAMINES, BARBITURATES, HALL US GENS AND ON THE WEEKENDS DID ALCOHOL AND ALSO HAD TAKEN SOME HEROINE WHEN HE WAS IN THE ARMY, ALL INDICATIONS THAT IF THERE WAS ANY SORT OF INDICATION OF BRAIN DAMAGE, WHICH I MENTIONED THAT THE DOCTOR DID FIND ORGANICITY IN HER TESTIMONY IN 1991. THIS SHOULD HAVE GIVEN CAUSE TO MR. O'LEARY TO LOOK INTO MR. WALTON'S BACKGROUND.
DID HE HAVE THOSE RECORDS?
NO. HE SAID HE DIDN'T BOTHER TO GET THE RECORDS BECAUSE IT DIDN'T COME TO HIM TO GET THEM. THANK YOU.
CHIEF JUSTICE: THANK YOU. THANK YOU BOTH VERY MUCH. THE COURT WILL NOW STAND IN RECESS UNTIL NINE O'CLOCK TOMORROW MORNING.