GOOD MORNING, LADIES AND GENTLEMEN. WELCOME TO THE FLORIDA SUPREME COURT. JUSTICE QUINCE IS NOT GOING TO PARTICIPATE IN THIS CASE, PAUL BEASLEY JOHNSON, AND SO SHE NOT SITTING WITH US TODAY. THIS IS A HISTORIC DAY, THE FIRST ORAL ARGUMENTS IN THE NEW NOT ONLY YEAR, DECADE, CENTURY, BUT MILLENIUM, AND WE WELCOME YOU TO BE A PART OF THAT. WHO IS GOING TO GO FIRST? MS. BREWER?

YES, YOUR HONOR.

YOU MAY PROCEED.

GOOD MORNING. MAY IT PLEASE THE COURT. MY NAME IS HEIDI BREWER. I WORK WITH CAPITAL COLLATERAL NORTHERN REGION, AND I REPRESENT PAUL BEASLEY JOHNSON. THIS CASE IS HERE, BEFORE THE COURT, AFTER MR. JOHNSON'S RULE 3.850 MOTION WAS DENIED IN THE TRIAL COURT, AND AFTER AN EVIDENTIARY HEARING ON SOME OF HIS CLAIMS, PRIMARILY INEFFECTIVE ASSISTANCE OF COUNSEL AT THE GUILT AND PENALTY PHASES. WE HAD A LIMITED -- WE HAD AN EVIDENTIARY HEARING BELOW, AND THE RELIEF WAS DENIED. WHAT I WANT TO DO IS LAY OUT SEVERAL ISSUES. IT IS SOMEWHAT COMPLICATED, BUT I THINK, ONCE I DO THAT, YOU WILL BE ABLE TO SEE THE THREAD AND HOW THEY ARE ALL LINKED TOGETHER. AT TRIAL, MR. JOHNSON PRESENTED THE DSTS OF IN -- THE DEFENSE OF INSANITY INDUCED BY DRUG PSYCHOSIS, BECAUSE HE WAS USING SIGNIFICANT AMOUNTS OF CHRISCAL METH DRIVEN, A SPEEDO-OF CRYSTAL METHADRINE, A SPEED TYPE OF DRUG. WE PRESENTED EVIDENCE THAT WAS NOT REFUTED THAT WAS NOT PRESENTED AT THE TRIAL, FROM A SPECIALIST IN PHARMACOLOGY AND PSYCHOLOGY, OTHERWISE KNOWN AS A PSYCHO PHARMACOLOGIST THE. WE, ALSO, PRESENTED EVIDENCE OF A PSYCHOLOGIST, ALL OF WHOM INTERVIEWED AND DID EXTENSIVE INVESTIGATION REGARDING MR. JOHNSON. THE PSYCHO PHARMACOLOGIST AND THE PSYCHOLOGIST FOUND THAT MR. JOHNSON HAD AN ORGANIC BRAIN DAMAGE. THIS IS SOMETHING THAT THE COURT BELOW, THE JURY OR THE JUDGE, NEVER KNEW. SIGNIFICANCE OF THIS WAS, IS, THAT MR. JOHNSON, AS A BRAIN-DAMAGED INDIVIDUAL, WAS USING SIGNIFICANT AMOUNT OF DRUGS, DRUGS WHICH HAVE A SIGNIFICANT IMPACT ON A NORMAL BRAIN. HOWEVER WE PROVED, AT THE EVIDENTIARY HEARING, THAT THEY HAVE AN ENHANCED EFFECT UPON SOMEONE WHO IS BRAIN DAMAGED, SOMETHING WHICH THE LOWER COURT NEVER KNEW.

DID ALL THE EXPERTS RELY ON JOHNSON'S TESTIMONY RELATIVE TO HIS USE OF AMPHETAMINES AND DRUGS?

BELOW, THE COURTS RELIED ON THAT INFORMATION, RELIED ON MR. JOHNSON --

EVERY EXPERT THAT TESTIFIED RELIED ON JOHNSON'S STATEMENT THAT HE --.

THEY WERE RELYING UPON THAT, WITH OTHER INFORMATION SURROUNDING THE CIRCUMSTANCES OF THE OFFENSE, AND, ALSO, SOME OF HIS OTHER HISTORY, WHERE HE HAD BEEN ACTUALLY BAKER ACTED, AND THEY SUSPECTED DRUG-INDUCED PSYCHOSIS, BECAUSE OF THAT WHICH WAS PREVIOUS TO THE OFFENSE IN THIS CASE. NOW, THE IMPORTANT THING IS THAT THIS LINKS INTO THE JAIL HOUSE SNITCH THAT WAS USED IN THIS CASE, WHO, ALSO, TESTIFIED AT THE EVIDENTIARY HEARING AND RECANTED HIS TESTIMONY AND, BASICALLY, SAID THAT HE WAS PROMPTED BY THE STATE AND USED AS A STATE AGENT, PUT IN A CELL NEXT TO WHERE PAUL JOHNSON WAS STAYING, AT THE BEHEST OF DETECTIVE WILKERSON, THE LAW ENFORCEMENT IN THIS CASE, AND DIRECTED TO GET INFORMATION FROM PAUL JOHNSON. MR. SMITH SPECIFICALLY TESTIFIED, AT THE EVIDENTIARY HEARING, THAT, WHEN HE TESTIFIED AT TRIAL, THAT MR. JOHNSON STATED THAT HE WOULD JUST ACT CRAZY TO BEAT THE CHARGES, THAT THAT WAS A LIE, AND THAT MR. JOHNSON NEVER SAID THAT. THAT IS A CRITICAL AND IMPORTANT FACTOR, WHICH GOES DIRECTLY TO WHAT THE DEFENSE'S CASE WAS.

HOW DO WE EVALUATE AS TO THAT ISSUE, THE FACT THAT THE TRIAL JUDGE, WHO WATCHED THE -- IS IT MR. SMITH?

JAMES LEON SMITH.

-- TESTIFY FOUND THAT HE HAD NO CREDIBILITY? IN OTHER WORDS THAT GAVE HIS RECANTED TESTIMONY NO WEIGHT? HOW DO WE EVALUATE THAT?

YOUR HONOR, I AM SO GLAD YOU BROUGHT THAT UP, BECAUSE THAT LEADS EXACTLY WHERE I WANT TO GO. THE HONORABLE JUDGE BENTLEY WAS THE JUDGE IN THIS CASE. WE DISCOVERED, THROUGH PUBLIC RECORDS AND THROUGH INVESTIGATION AND LATE DISCOVERY OF PUBLIC RECORDS THAT, JUDGE BENTLY ACTUALLY WAS THE JUDGE WHO REDUCED JAMES LEON SMITH'S SENTENCE FROM SEVEN YEARS TO PROBATION, IN EXCHANGE FOR HIS TESTIMONY AGAINST MR. JOHNSON. THEREFORE, AT LEAST AS TO THAT POINT, WE HAD FILED THE MOTION TO RECUSE JUDGE BENTLEY, WHICH WAS DENIED. HE DID NOT RECUSE HIMSELF, SO WE WENT AHEAD WITH THE EVIDENTIARY HEARING WITH HIM. IT IS MY ARGUMENT THAT JUDGE BENTLEY SHOULD NEVER HAVE BEEN ON THIS CASE TO BEGIN WITH, BECAUSE HE WAS A POTENTIAL WITNESS. HAD HE RECUSED HIMSELF, WE WOULD HAVE BEEN ABLE TO CALL HIM AND HAVE EVIDENTIARY DEVELOPMENT UPON HIS KNOWLEDGE AND COMMUNICATIONS, SO, NUMBER ONE, I DO NOT THINK THAT THE CREDIBILITY DETERMINATION 6 JUDGE BENTLEY -- OF JUDGE BENTLEY SHOULD BE GIVEN ANY WEIGHT, BECAUSE OF THAT FACTOR, AND IF THIS COURT WERE TO AGREE WITH THAT FACTOR, IT SHOULD NOT BE GIVEN ANY WEIGHT, BECAUSE THE DOCUMENTARY EVIDENCE THAT I PRESENTED AT THE EVIDENTIARY HEARING SUPPORTED JAMES LEON SMITH'S TESTIMONY ABOUT THE FACT THAT HE HAD LIED AT TRIAL. HE HAD -- THERE WERE IN-TIME DOCUMENTS THAT HE WROTE AND THAT WERE ENTERED INTO EVIDENCE AT THE EVIDENTIARY HEARING THAT HE WAS DISPLEASED WITH THE STATE ATTORNEY. WHAT ARE YOU GOING TO DO FOR ME? HE TESTIFIED ABOUT HOW HE HAD, AT FIRST, TRIED TO APPEAL HIS SENTENCE, THAT HE HAD RECEIVED FOR GRAND THEFT, AND THOUGHT THAT THE STATE ATTORNEY WAS GOING TO HELP HIM OUT. WHY WEREN'T YOU DOING ANYTHING ABOUT THAT, AND THEN, SO I ENTER INTO EVIDENCE THOSE EXHIBITS, THE DOCUMENTARY PROOF, DATED IN TIME, IN 1981. WHAT HAPPENED WAS, AFTER THOSE COMMUNICATIONS AND COMMUNICATION FROM THE STATE ATTORNEY TO JUDGE BENTLEY, SUDDENLY, JUDGE BENTLEY INITIALLY DENIED JAMES LEON SMITH'S MOTION TO REDUCE HIS SENTENCE. THEN, IN NOVEMBER, AFTER MR. JOHNSON WAS TRIED, THE -- JAMES LEON SMITH'S SENTENCE IS REDUCED. HIS MITIGATION FOR SENTENCE WAS GRANTED, SO THAT WAS PROVEN, AND I WOULD SUBMIT THAT THAT IS ANOTHER REASON WHY THE FACTS BELOW SHOULD BE GIVEN NO CREDIBILITY, AS FAR AS THE CREDIBILITY FINDINGS REGARDING JAMES LEON SMITH. IT WAS CRITICAL INFORMATION, BECAUSE THAT WAS WHAT THE DEFENSE WAS AT TRIAL, WAS DRUG-INDUCED PSYCHOSIS, AND WITHOUT THAT INFORMATION --

DO WE HAVE TRANSCRIPTS OF THE PROCEEDINGS BEFORE JUDGE BENTLY, WITH SMITH AND THE REDUCTION OF THAT SENTENCE?

DO NOT HAVE TRANSCRIPTS OF THOSE, YOUR HONOR. WHAT HAPPENED WAS, AS I HAD REQUESTED SEVERAL REGULAR PUBLIC RECORDS REQUESTS, WE HAD SEVERAL HEARINGS ON THOSE REQUESTS BEFORE A DIFFERENT JUDGE, BEFORE THE EVIDENTIARY HEARING, AND MADE REQUESTS UPON THE STATE ATTORNEYS OFFICE OF HILLSBOROUGH COUNTY, WHICH WAS THE AGENCY PROSECUTING THIS CASE, BECAUSE OF A CONFLICT EARLIER ON. I HAD REQUESTED RECORDS, AND SINCE MR. JOHNSON WAS TRIED IN 1981, HE WAS INITIALLY TRIED BY HARDY PICKARD. THAT WAS THEN REVERSED, BECAUSE OF AN ERROR WHERE THE JURORS HAD SEPARATED DURING A GUILT/INNOCENCE DELIBERATIONS. HE HAD SEPARATED AND THEN THAT WAS A MISTRIAL, SO IN 1988 HE WAS TRIED BY LEE ATKINSON, THE PROSECUTOR DOWN THERE. NOW, I INFORMED THE COURT BELOW THAT I DID NOT BELIEVE THAT I HAD ALL OF THE PUBLIC RECORDS, FROM THAT AGENCY, FROM THE STATE ATTORNEY'S OFFICE, BECAUSE WHEN YOU GO THROUGH PUBLIC RECORDS, YOU CAN TELL WHEN RECORDS ARE GENERATED BY A CERTAIN ATTORNEY AND BY OTHER ATTORNEYS AND BY TIMING OF THE RECORDS AND ALL OF THAT.

IF YOU ARE TALKING ABOUT THE TRANSCRIPT OF A PROCEEDING, WHY WOULD YOU HAVE TO GO TO THE STATE ATTORNEY TO GET THAT?

WELL, IN THE STATE ATTORNEY -- YOUR HONOR, IN THE STATE ATTORNEY'S FILES, OF COURSE, THERE WAS CORRESPONDENCE BETWEEN JAMES LEON SMITH AND THE PROSECUTOR, AND ONLY UNTIL YOU CAN PUT ALL THE PIECES TOGETHER DOES IT REALLY MAKE SENSE TO UNDERSTAND JUDGE BENTLEY'S ROLE IN WHAT WAS GOING ON THERE, AND SO WHEN I ASKED THE STATE ATTORNEY SAID THEY HAD COMPLIED WITH ALL THE RECORDS, WE HAD, ALSO, LATER, INSPECTED THE ATTORNEY GENERAL FILES. WELL, IT CAME TO BE THAT THOSE ORIGINAL STATE ATTORNEY FILES FROM THE HILLSBOROUGH COUNTY SHERIFF'S OFFICE WERE FOUND IN THE ATTORNEY GENERAL FILES. NOW, PRIOR TO 1995, IT IS MY UNDERSTANDING THAT IT WAS THE ATTORNEY GENERAL'S POSITION THAT THE ATTORNEY GENERAL DIDN'T USUALLY OR NORMALLY POSSESS THOSE KINDS OF RECORDS. NORMALLY IT WAS PLEADINGS AND THAT TYPE OF THING. AND SO THE PRIMARY FOCUS FOR US IS TO GET THE RECORDS THAT WE DON'T HAVE. AND IN 1995, THERE STARTED AN AGREEMENT BETWEEN CCR AND MR. MARTELL AS TO REVIEWING THE ATTORNEY GENERAL'S RECORDS. IT IS MY UNDERSTANDING THERE IS A CHANGE OF POSITION. OKAY. YOU CAN COME AND LOOK AT THE ATTORNEY GENERAL RECORDS. WELL, WE DID THAT, AND LOW AND BEHOLD -- AND LO AND BEHOLD, THE ORIGINAL STATE ATTORNEY RECORDS ARE IN THE ATTORNEY GENERAL'S FILES, AND I BELIEVE IT IS MY OPPONENTS' OPPOSITION THAT WE SHOULD HAVE DISCOVERED THOSE EARLIER, BUT AS I SAY IN THE BRIEF, THAT I THINK IT WOULD BE MANIFEST INJUSTICE TO ALLOW A STATE AGENCY, WHETHER WILLFULLY OR BY NEGLECT OR WHATEVER, TO TRANSFER RECORDS TO ANOTHER STATE AGENCY, WHEN YOU WOULD EXPECT THEM TO BE AT ONE AGENCY, IS SOMEWHAT OF A SHELL GAME, IN SOME SORT OF WAY, AND THEN HOLD THE PROCEDURAL BARROW-.

CAN YOU EXPLAIN EXACTLY WHAT WAS IN THOSE RECORDS THAT WOULD HAVE CAUSED YOU TO PRESENT YOURS DIFFERENTLY AT THE EVIDENTIARY HEARING OR AMEND YOUR CLAIMS? WHERE IS THE PREJUDICE? I UNDERSTAND YOUR POSITION AS TO THE FACT THAT YOU SHOULDN'T HAVE TO BE TRYING TO TRACE WHERE RECORDS GO FROM ONE AGENCY TO THE NEXT, BUT WHAT IS IN THE RECORDS AND HOW WOULD THAT HAVE CHANGED?

URNKS, THERE WERE MANY THING PASS IN THE RECORDS WHICH I ATTACHED TO OUR PROPOSED 3.850. THERE WERE WITNESS INTERVIEWS, AND THEN THERE WERE OTHER DOCUMENTS REGARDING JUDGE BENTLEY AND HIS COMMUNICATION BACK AND FORTH. I THINK WHAT -- THE IMPORTANT THING HERE TO TALK ABOUT, ALSO, IS THAT THE LOWER COURT DID NOT EVALUATE JAMES LEON SMITH'S TESTIMONY AS REGARDING A HENRY CLAIM. HE EVALUATED IT AS TO BRADY, AND THE PREJUDICE. HOWEVER, WITH THE HENRY CLAIM AND WITH THE GIGLIO CLAIM, THE STANDARDS ARE A LOT STRICT OR AND I SHOULD NOT HAVE HAD TO PROVE THE PREJUDICE, BUT AS FAR AS GETTING BACK TO YOUR QUESTION THAT THE PREJUDICE TO PAUL JOHNSON WAS THAT THERE WAS AN ENORMOUS AMOUNT OF INVESTIGATION THAT WE COULD AND SHOULD HAVE BEEN ABLE TO DO, AND JUDGE -- EXCUSE ME -- IN JUDGE BENTLEY'S LAST ORDER BEFORE THE EVIDENTIARY HEARING, HE HAD STATED, AND I CITE IN MY REPLY BRIEF, THAT THERE WILL BE NO FURTHER EXTENSIONS OF TIME, AND THAT HE SAYS COUNSEL SHALL BE PREPARED TO LITIGATE THE MOTION FOR POST-CONVICTION RELIEF THAT WAS FILED ON JANUARY 28, 1997. THAT WAS THE MOTION THAT I HAD 20 DAYS IN WHICH TO FILE.

I GUESS WHAT I WOULD LIKE, IT WOULD BE BETTER IF YOU COULD SAY, LOOK, IF I HAD HAD THIS DOCUMENT, I WOULD HAVE DONE THIS. I HAVE NOW DONE THIS. AND THIS IS WHAT I COULD HAVE PRESENTED. CAN YOU GIVE US AN EXAMPLE OF, ONE EXAMPLE, OF SOMETHING THAT CAME FROM THOSE RECORDS THAT YOU COULD HAVE PRESENTED?

COULD HAVE INVESTIGATED FURTHER AND BEEN ABLE TO BETTER PRESENT THE CLAIM BELOW. I HAD 20 DAYS IN WHICH TO FILE THE AMENDMENT. I AM SEARCHING, YOUR HONOR, TO GIVE YOU A SPECIFIC, BUT THE FACT OF IT IS THAT I DIDN'T HAVE THE ABILITY, AT THE TIME, TO BE ABLE TO FIND OUT WHAT I NEED TO BE ABLE TO TELL YOU, IN ORDER TO SAY WHAT I COULD HAVE DONE, BUT SIGNIFICANTLY, I BELIEVE, IT PREJUDICES THIS CASE, AND EVEN WITHOUT THAT, THOUGH, I BELIEVE THAT WE PROVED THE CASE BELOW, AND THAT RELIEF SHOULD HAVE BEEN GRANTED. AS I STATED, WE FILED A MOTION TO DISQUALIFY JUDGE BENTLEY, BECAUSE OF HIS INVOLVEMENT IN THIS CASE. IT WAS DENIED. WE WENT FORWARD WITH IT. JUDGE BENTLEY WOULD HAVE BEEN A WITNESS, HAD HE RECUSED HIMSELF, AND WE WOULD HAVE BEEN CALLED, AND WE COULD HAVE EXPLORED, FURTHER, THE ACTUAL DEAL BETWEEN THE STATE AND MR. SMITH.

BUT COULDN'T YOU HAVE FOUND THAT OUT BY LOOKING AT A TRANSCRIPT OF THOSE PROCEEDINGS? THAT WAS THE REASON I ASKED EARLIER. WHO BROUGHT THE MATTER BACK BEFORE THE COURT? WHEN SMITH'S SENTENCE WAS REDUCED? AND WHAT WAS STATED ON THE RECORD, AT THE, DURING THOSE PROCEEDINGS?

WAS THERE A DEAL WITH THE STATE, AND -- WHICH, AT THAT POINT, THE JUDGE APPROVED?

YOUR HONOR, THE SIGNIFICANCE OF THE PLAYERS IN THIS CASE, WE STARTED OUT WITH THE DIFFERENT JUDGE. I THINK WE INITIALLY STARTED OUT WITH JUDGE PADGETT. THEN WE WERE WITH JUDGE DOYLE, AND AFTER THAT WE WERE WITH JUDGES BENTLEY. IN THE TIME FRAME WHERE WE WERE WITH JUDGE BENTLEY, AND WHEN THE DOCUMENTS WERE DISCLOSED, FINALLY, FROM THE STATE ATTORNEY'S OFFICE, ALTHOUGH THEY CAME THROUGH ANOTHER OFFICE, IS WHEN THE SIGNIFICANCE OF THE PLAYERS AND HOW THEY ALL RELATED CAME TO BE.

BUT EVEN SINCE THEN, HAVE YOU GOTTEN A TRANSCRIPT OF THOSE?

I BELIEVE THAT I HAVE REQUESTED IT, YOUR HONOR. I CANNOT SAY THAT I HAVE IT IN MY OFFICE, AND I DON'T WANT TO STRETCH TOO FAR. I MAY BE MIXING CASES, SO I WOULDN'T GO ANY FURTHER, AS FAR AS IF IT EVEN STILL EXISTS.

AT THE TRIAL THAT WAS IN 1987, MR. SMITH TESTIFIED AGAIN?

YES, YOUR HONOR.

SO THAT, REALLY, IN TERMS OF WHAT WE ARE LOOKING AT, SHOULDN'T WE REALLY BE LOOKING AT WHAT OCCURRED IN 1987, VERSUS WHAT OCCURRED IN 1981?

NO, YOUR HONOR, BECAUSE JAMES LEON SMITH WROTE LEE ATKINSON A LETTER, SAYING I DON'T WANT TO TESTIFY IN THIS MATTER ANYMORE. HE TESTIFIED IN '81, THEN THEY WANTED HIM IN '87 AND '88 AGAIN, AND THE PROSECUTOR SENT A LETTER BACK SAYING IT IS UNACCEPTABLE. YOU WILL TESTIFY. NOW, THIS IS CONTRARY TO WHAT HIS TESTIMONY AT THE EVIDENTIARY HEARING WAS, THE PROSECUTOR'S TESTIMONY, SAYING WE REALLY DIDN'T NEED JAMES LEON SMITH. WE COULD HAVE DONE THINGS WITHOUT HIM, BUT NOW WE KNOW HOW CRITICAL IT WAS, BECAUSE HIS TESTIMONY WENT TO DEFEAT THE DEFENSE'S SOLE THEORY, AND SO JAMES LEON SMITH TESTIFIED IN '87 AND '88, BASED UPON HIS '81 TESTIMONY. THAT WAS THE AGREEMENT THAT HE WOULD TESTIFY THE SAME.

WHAT DO WE DO WITH MR. CAT KINNESON'S TEST -- WITH MR. ATKINSON'S TESTIMONY, WAS IT UNDER OATH?

YES, MA'AM.

THAT HE SPECIFICALLY TOLD MR. SMITH THAT HE DIDN'T HAVE TO TESTIFY, THAT HE WOULD NOT PROSECUTE HIM FOR PERJURY. THEY DID NOT NEED HIM, AND THAT, AGAIN, JUDGE BENTLEY MADE A FINDING THAT THAT WAS CREDIBLE TESTIMONY? DO WE JUST DISREGARD THAT TESTIMONY?

ONE, I THINK BECAUSE OF JUDGE BENTLEY'S INVOLVEMENT, IT SHOULD NOT BE GIVEN THAT CREDIBILITY. SHOULD NOT BEGIN WEIGHT. AND, TWO, THE DOCUMENTARY EVIDENCE BELIES THE FACT THAT OR AT LEAST THE TESTIMONY THAT MR. ATKINSON GAVE, AS FAR AS HOW CRITICAL JAMES LEON SMITH WAS. HIS LETTER STATED, IN TIME, IT IS UNACCEPTABLE FOR YOU NOT TO TESTIFY.

IS IT YOUR CLAIM THAT THIS IS FUNDAMENTAL ERROR?

YOUR HONOR, I BELIEVE IT IS. IT IS A HENRY CLAIM THAT HE CLEARLY HAD COUNSEL WHEN HE WAS INCARCERATED AND THEY, ALSO, FILED NOTICE OF EXERCISE OF RIGHT, THE PUBLIC DEFENDER'S OFFICE DID, AND YET JAMES LEON SMITH WENT IN THERE, THROUGH THE POLICE, A STATE AGENT, AS WE KNOW THROUGH BAGLEY. IT DOESN'T MATTER IF IT IS THE POLICE OR PROSECUTOR, TO GET INFORMATION UNWARNED. STATEMENTS AND INFORMATION. THANK YOU. I SEE MY TIME IS UP.

THANK YOU.

FIRST OF ALL, WITH REGARD TO JAMES LEON SMITH, THE DEALS THAT WERE MADE TO JAMES LEON SMITH, THE BENEFITS TO HIS TESTIMONY WERE KNOWN BY DEFENSE COUNSEL AND EXPLORED DURING BOTH THE '87 AND '88 TRIALS. THE DEFENSE COUNSEL SAW HIM TESTIFY THAT HE RECEIVED THIS SENTENCE THAT WAS MITIGATED, BASED UPON A LETTER THAT HARDY PICKARD HAD SENT ON HIS BEHALF. THIS WAS ALL KNOWN AND ALL EXPLORED AT TRIAL. THIS IS ABSOLUTELY NOTHING KNEW. AS FAR AS JUDGE BENTLEY'S INVOLVEMENT WITH MR. SMITH, THEY RECEIVED THE RECORDS, INDICATING THAT JUDGE BENTLEY HAD REDUCED THE SENTENCE, AT THE SAME TIME THAT JUDGE BENTLEY WAS ASSIGNED TO THE CASE, SO THE SUGGESTION THAT THERE WAS SOME DELAY THAT KEPT THEM FROM KNOWING ABOUT THIS IS JUST CLEARLY ERRONEOUS. THEY RECEIVED THIS INFORMATION AT THE SAME TIME THAT JUDGE BENTLEY TOOK OVER THE CASE. FURTHER, THE SUGGESTION THAT THEY WERE SOMEHOW LIMITED IN THEIR ABILITY TO REVIEW THESE MATERIALS IS TOTALLY BE LIED BY THIS RECORD. THE RECORD SHOWS THAT THEY RECEIVED THIS MATERIAL, THEY RECEIVED IT ON DECEMBER 16, 1996, THAT TEN DAYS LATER THEY MADE A MOTION REQUESTING AN ADDITIONAL 60 DAYS. THE COURT DENIED THAT. HE TOLD THEM TO FILE AN AMENDED MOTION, WHICH WAS, THEN, -- THEY FILED THAT ON JANUARY 28, '97, AND THE EVIDENTIARY HEARING WAS NOT HELD UNTIL MARCH OF '97, SO FROM DECEMBER OF '96 TO MARCH OF '97, THEY HAD WHAT AMOUNTED TO THIS MANY DOCUMENTS IN THEIR POSSESSION, TO GO THROUGH AND DETERMINE IF THERE WAS ANYTHING THAT WOULD PROVIDE AN ADDITIONAL CLAIM OR AN ADDITIONAL EVIDENCE THAT THEY NEEDED TO PRESENT. WHILE JUDGE BENTLEY TOLD THEM WE ARE GOING TO GO FORTH ON THIS MOTION, HE, ALSO, TOLD THEM I AM NOT GOING TO PRECLUDE YOU FROM PRESENTING ANY NEW EVIDENCE OR RAISING ANY NEW POSITIONS BEFORE ME, BASED ON ANYTHING THAT YOU MAY FIND. AT NO TIME DURING THAT HEARING DID THEY SUBMIT TO THE COURTNEY CLAIM THAT WAS NOT PREVIOUSLY RAISED, AND JUST AS THEY HAVE NOW CANNOT STAND BEFORE YOU AND TELL YOU THAT THERE WAS SOMETHING THAT THEY FOUND IN THOSE FILES THAT THEY DID NOT ALREADY KNOW, THEY DID NOT DO THAT TO JUDGE BENTLEY. ALSO WITH REGARD TO THE BRADY CLAIM, AS TO SMITH, AGAIN, SMITH'S TESTIMONY WAS PRESENTED AT THE EVIDENTIARY HEARING. HE WAS EXAMINED ON DIRECT BY THEM. HE WAS CROSS-EXAMINED. HIS TESTIMONY, AS YOU CAN SEE FROM THE TRANSCRIPTS ALONE, WAS CLEARLY NOT CREDIBLE. THAT ON DIRECT, HE WAS VERY MUCH -- THAT WAS ALL A LIE. THAT DIDN'T HAPPEN. NO. THAT DIDN'T HAPPEN. THEY FED IT TO ME. THEY DID THIS. THEY DID THAT. ON CROSS-EXAMINATION, WELL, I CAN'T REMEMBER WHO TOLD ME WHAT, AND, YES, HE DID SAY SOME THINGS. YES. HE MAY HAVE ADMITTED TO THE KILLINGS, AND HE TOTALLY BACK TRACKED ON EVERYTHING THAT HE HAD SAID ON DIRECT. HE WAS CLEARLY NOT A CREDIBLE WITNESS. THE THINGS THAT HE STATED ORIGINALLY THAT LEE ATKINSON HAD TOLD HIM TO LIE, HE BACK TRACKED ON THAT. WHEN YOU PUT HIS TESTIMONY TOGETHER WITH LEE ATKINSON, YOU CAN SEE THAT MR. ATKINSON'S TESTIMONY WAS CREDIBLE AND CORRECT AND THAT HE DID GIVE MR. SMITH A COPY OF THE TRANSCRIPT AND ASKED TO REAFFIRM THAT. YES. AT NO POINT DID HE TELL HIM THIS WAS A LIE. HE TOLD HIM THAT THIS IS WHAT HAPPENED. HE SAID HE WALKED HIM THROUGH IT, THAT HIS STATEMENTS TO HIM AT THAT TIME WERE CONSISTENT TO WHAT HE HAD TESTIFIED TO ON SEVERAL OCCASIONS PRIOR TO THAT. THE TRIAL JUDGE WAS THERE. HE MADE THESE CREDIBILITY DETERMINATIONS, AND THAT IS BEFORE THIS COURT NOW, AND YOU HAVE TO ASSUME THAT THERE ARE FACTS THAT SUPPORT IT, THAT IT IS A CORRECT FINDING. ALSO, WITH REGARD -- THEIR CLAIM OF INEFFECTIVE ASSISTANCE TO COUNSEL AND PENALTY PHASE. THE DEFENSE, AND I BELIEVE IT WAS SHEER, REPRESENTED MR. JOHNSON IN '81 AND '87 AND '88. IN '87 AND '88 HE WAS ASSISTED BY ROBERT NORGARD. IN '81 THEY PRESENTED A REASONABLE DOUBT WHICH, OF COURSE, HE WAS FOUND GUILTY ON ALL THREE COUNTS OF THE MURDERS, SO WHEN THEY WENT FOR '87, THEY DECIDED THAT POSSIBLY THEY COULD GET AN INSANITY DEFENSE, SINCE THEY HAD SOME EVIDENCE TO SUPPORT THE FACT THAT HE WAS IN A DRUG-INDUCED STATE AT THE TIME. HAVING HAD THE OPPORTUNITY TO DO TRIAL AND ERROR, THIS LAWYER PREPARED AND PRESENTED A SUBSTANTIAL CASE. HE PRESENTED TWO PSYCHIATRISTS AND A PHARMACOLOGIST, TO BE ABLE TO TESTIFY AS TO THE EFFECTS THE AMPHETAMINES HAD ON HIS CLIENT AND HIS ABILITY TO. INTENT. THE STATE PRESENTED TWO WITTS AS RE-- TWO WITNESSES FOR REBUTTAL AND IN THE PENALTY PHASE TO TESTIFY AS TO THE STATUTORY MENTAL MITIGATORS. THIS LAWYER PREPARED AND DID AN EXCELLENT JOB. THERE IS ABSOLUTELY NO BASIS TO CONTENT THAT -- CONTEND THAT NOW, BECAUSE THEY FOUND TWO ADDITIONAL EXPERTS, THAT THAT IS GOING TO UNDERMINE EVERYTHING THAT WAS DONE. THE THING THAT WE HAVE TO REMEMBER, EVEN THOUGH THEIR TWO EXPERTS HAVE NOW FOUND ORGANIC BRAIN DAMAGE, IT IS BASED ON THE DEFENDANT'S SELF REPORT OF HAVING SNIFFED GLUE, HAVING DONE DRUGS, AND THAT, BASED UPON THIS REPORT FROM HIM AND HIS FACT THAT HE SAID I CAN'T REMEMBER. I CAN'T REMEMBER, THAT THERE IS EVIDENCE OF BRAIN DAMAGE.

IS THAT THE ONLY BASIS THESE EXPERTS USED TO. AN OPINION THERE WAS BRAIN DAMAGE? THERE WERE NO NEUROPSYCHOLOGICAL TEST SOMETHING.

NO. THERE WAS A TEST IN EVANS. HE SAID THAT THE TESTS INDICATED SOME SIGNIFICANT PROBLEMS, WHICH IS INDICATIVE OF BRAIN DAMAGE. THE IMPORTANT THING --

AT THE MOST, THAT TYPE OF TESTIMONY MIGHT HAVE GONE TO A MENTAL MITIGATOR. THAT, REALLY, WOULDN'T -- WOULD THAT HAVE AFFECTED THE INSANITY?

NO. BECAUSE EVEN BOTH OF THEIR DOCTORS ADMITTED THAT THE DEFENDANT, EVEN IN A DRUG-INDUCED STATE, HAD THE ABILITY TO. INTENT AND HAD THE ABILITY TO KNOW WHAT HE WAS DOING WHEN HE WAS COMMITTING THE MURDERS, THAT -- BUT JUST DEPENDED ON THE LEVEL OF IT, BUT THEY BOTH AGREED ON CROSS-EXAMINATION THAT, YES, INDEED HE COULD HAVE INFORMED INTENT -- FORMED INTENT. THEY BOTH DISAGREED THAT THEY DID NOT DISPUTE WHAT THE PRIOR EXPERTS HAD FOUND.

WHAT WAS THE TIME PERIOD?

SOMETHING LIKE SIX OR SEVEN HOURS.

WAS THERE ANY EVIDENCE THAT HE WAS USING DRUGS?

THE ONLY EVIDENCE THAT HE WAS USING DRUGS IS WHEN HE PICKED UP RAY BEASLEY AND AMY READ -- AMY REED, IT WAS HIS TESTIMONY THAT THEY WERE DOING IT IN THE CAR. AGAIN, THE ONLY SIGNIFICANCE OF BRAIN DAMAGE OR ANYTHING ELSE IS WHEN IT IS CONSIDERED IN LIGHT OF HIS ACTS. THIS COURT, IN ITS PRIOR OPINION, FOUND THAT HIS ACTS WERE DELIBERATE THAT, HE USED SUBTAKE FUGUE IN PLANNING AND COMMIT -- SUBTAKE FUGUE IN PLANNING AND -- SUBTRAFUGE IN PLANNING AND COMMITTING THESE MURDERS.

JUDGE BENTLEY TESTIMONY THAT HE HAD HEARD SMITH, IS THERE ANY DUTY ON A JUDGE TO STATE THAT HE KNEW THAT A DEAL HAD BEEN CUT TO BRING THIS OUT?

YOUR HONOR, HE KNEW THAT A DEAL HAD BEEN CUT. THAT WAS EXPLORED IN THE '87 AND '88 TRIALS. AS FAR AS THE SUFFICIENCY OF THE MOTION, THIS COURT IN SCOTT AND AMWALD, HAS HELD THAT JUDGES DO NOT HAVE TO RECUSE THEMSELVES, EVEN THOUGH THEY HAVE KNOWLEDGE OF PRIOR DEFENDANTS OR WITNESSES THAT HAVE TESTIFIED. THERE WAS NO NEW INFORMATION THAT JUDGE BENTLEY HAD, AND AS FAR AS THEY ARE SAYING, THEY WOULD HAVE CALLED HIM AS A WITNESS. I SUBMIT THAT, A, THEY COULD HAVE GOTTEN A TRANSCRIPT, TO BE ABLE TO ACTUALLY DETERMINE WHAT HAPPENED, AND, B, THIS COURT HAS ALLOWED, UNDER CERTAIN CIRCUMSTANCES, THE DEPOSITION OF A TRIAL JUDGE. THEY DIDN'T ASK FOR THOSE THINGS, AND THEY CERTAINLY HAVEN'T ESTABLISHED THAT JUDGE BENTLEY KNEW OF THE FACTS ABOUT THIS CASE. JUDGE BENTLEY DID NOT PRESIDE OVER THE TRIALS OF PAUL BEASLEY. THEREFORE HE WAS NOT IN A POSITION TO MAKE CREDIBILITY DETERMINATIONS BASED ON WHAT HE HAD PREVIOUSLY SAID VERSUS WHAT HE HAS SAID NOW. THERE WAS NO BASIS FOR IT, AND IT WAS APPROPRIATELY DENIED.

THANK YOU. REBUTTAL?

YES, YOUR HONOR. A FEW THINGS HERE QUICKLY I WOULD LIKE TO MENTION. PAUL JOHNSON, THIS SERIES OF OFFENSES OCCURRED DURING THE SHORT PERIOD OF TIME OF ABOUT SIX HOURS. IT STARTED AT 11:30, AND I THINK ABOUT 3:45 A.M. IS WHEN HE RECEIVED WAS NEXT SEEN, AFTER THE DEPUTY INCIDENT. NOW, IT IS, ALSO, CRITICAL, TO KNOW THAT PAUL BEASLEY JOHNSON WAS INJECTING CRYSTAL METHADRINE, WHICH THE EXPERTS TESTIFIED IT IS A VERY POWERFUL DRUG, A SPEED DRUG THAT KEEPS YOU GOING. IT IS GOING TO LAST LONGER THAN SIX HOURS. THE EVIDENCE WHICH WAS THE DOCUMENTS THAT WERE PRODUCED LATER, WHICH I ATTACHED TO THE PROPOSED 3.850, ARE INTERVIEWS OF PEOPLE AND ASSOCIATES OF PAUL BEASLEY JOHNSON WHO ACTUALLY STATED THAT HE WAS ON DRUGS. HE WASN'T HIMSELF. HE SEEMED LIKE HE WAS SCHIZOPHRENIC, PARANOID ON DRUGS. HE HAD THE HISTORY OF THE BAKER ACT WHEN HE WAS ON DRUGS BEFORE, CLAIMING HE WAS THE INCREDIBLE HUCK. THIS INFORMATION IS NOW -- THE INCREDIBLE HULK. THIS INFORMATION IS NOW IMPORTANT. AS FAR AS THE DEAL WAS KNOWN TO EVERYONE, MR. PICKARD WROTE A LETTER, AND I BELIEVE HE TESTIFIED AT THE EVIDENTIARY HEARING THAT HIS REPRESENTATION TO THE DEFENSE WAS NOTHING OTHER THAN HELP WITH HIS CUSTODY MATTER WITH JAMES LEON SMITH'S CHILDREN, AND A WORD REGARDING HIS PROBATION AND PAROLE. NOW, THE DEFENSE, CLEARLY, BELOW, THEY WERE ON TO JAMES LEON SMITH, BECAUSE THEY HAD HAD THE PRIOR EXPERIENCE WITH THE STATE TRYING TO USE BROCKO BANK AS A SNISM SNITCH, WHICH THE STATE A -- AS A SNITCH, WHEN THE STATE ABANDONED AND THEY FOUND HE WAS TRULY WORKING WITH THE STATE. THEY FILED A MOTION TO SUPPRESS, BUT THEY DIDN'T HAVE EVERYTHING THAT THEY NEEDED, WHICH WE NOW KNOW, AND WE KNOW IT WAS IMPORTANT FOR THE STATE TO HAVE HIM, TO ATTACK THE DEFENSE AFTERNOONS ONLY DEFENSE. NOW -- THE DEFENSE'S ONLY DEFENSE.

ARE YOU SAYING THAT THE DEFENSE DID NOT KNOW ABOUT THE JUDGE'S INVOLVEMENT AT ALL?

NO. WHAT I AM SAYING IS THAT THEY WERE ON TO JAMES LEON SMITH, THAT THERE WAS SOMETHING GOING ON THERE. THEY TRIED, AT TRIAL. THEY FILED A MOTION TO SUPPRESS. THEY WERE ON TO HIM, TO SOME EXTENT, AND WHAT I AM SAYING IS WHAT WE HAVE, NOW, IN CONJUNCTION WITH JAMES LEON SMITH'S RECANTATION, AND I MIGHT ADD THAT, AT THE EVIDENTIARY HEARING, HE ASKED, HE TALKED TO THE JUDGE AND HE ASKED TO LEAVE TO TALK TO AN ATTORNEY, REGARDING HIS RIGHTS, BECAUSE HE WAS CONCERNED WITH WHETHER HE WOULD BE CHARGED WITH PERJURY LATER, SO I WOULD SAY THAT THAT ADDS TO HIS CREDIBILITY, THAT HE ASKED FOR LEGAL ADVICE BEFOREHAND.

BUT THE DEFENSE KNEW, ALL ALONG, THAT JUDGE BENTLEY HAD SENTENCED SMITH.

I WOULD SAY THAT, IN TIME, I WOULD SAY I THINK -- I BELIEVE THEY DID BELOW, AT THE TRIAL, AT THE MR. JOHNSON'S.

IF THEY WERE GOING TO FOLLOW UP ON THIS, THEY HAD AN OPPORTUNITY TO DO THAT.

THEY DID AND I BELIEVE WE PLED IN THE ALTERNATIVE THAT THEY WERE INEFFECTIVE FOR NOT BEING ABLE TO. AGAIN, THEY WERE RENDERED INEFFECTIVE BY THE STATE, BECAUSE JAMES LEON SMITH WAS WORKING WITH THE STATE, AND HE WAS TESTIFYING FALSELY. HE WAS BEING FED THIS INFORMATION FROM THE POLICE.

BUT JUDGE BENTLEY WAS NOT THE TRIAL JUDGE.

NO, YOUR HONOR. JUDGE BENTLEY WAS NOT THE TRIAL JUDGE, BUT I DON'T THINK THAT THAT WAS A CRITICAL POINT HERE. HE WAS A CRITICAL PLAYER REGARDING JAMES LEON SMITH, WHO TESTIFIED AT MR. JOHNSON'S TRIAL.

MAYBE I AM CONFUSED ABOUT TO DIFFERENT ISSUES. WE KNOW HE HAS NOW RECANTED.

YES.

JUDGE BENTLEY MADE DETERMINATIONS ABOUT THE RECANTATION. WHAT IS IT, THOUGH, HE HADN'T RECANTED AT THE TIME OF THE 1988 OR '87 TRIAL AND JUDGE BENTLEY WASN'T INVOLVED IN THAT TRIAL, WHAT IS IT THAT YOU HAVE SUBSEQUENTLY DISCOVERED ABOUT THIS DEAL THAT WAS MADE OR SOMETHING THAT WOULD HAVE AFFECTED THE TRIAL STRATEGY IN 1987 OR '88?

FIRST OF ALL, WHAT WE KNOW, NOW, IS THAT PAUL JOHNSON NEVER SAID HE WOULD ACT CRAZY. OKAY. HE NEVER SAID THAT, EVEN THOUGH THAT IS WHAT THE JURY HEARD, AND THE DEFENSE WAS --

BUT THAT IS BASED ON MR. SMITH'S TESTIFYING TO IN 1996 OR ''97. THAT YOU WILL HAVE HAD IN '87, BECAUSE HE DIDN'T DO IT UNTIL NOW. WAS THERE SOME PIECE OF EVIDENCE, IN THE FORM OF THE DEAL THAT WAS MADE WITH SMITH, THAT YOU DIDN'T HAVE IN '87 OR '88?

OTHER THAN THE FACT THAT HIS TESTIMONY, IT WAS NOT TRUE. IS WHAT YOU ARE ASKING.

RIGHT. CORRECT.

WELL, I THINK IT RELATES TO THEIR STRATEGY VERY MUCH, BECAUSE THEY DECIDED, WITH JAMES LEON SMITH, TO OPEN THE DOOR AND ACTUALLY ASK QUESTIONS FROM JAMES LEON SMITH, ABOUT PAUL JOHNSON'S DRUG USE, WHICH OPENED THE DOOR TO ALLOW THAT STATEMENT ABOUT, WELL, PAUL JOHNSON SAID HE WOULD JUST ACT CRAZY, AND I SUBMIT TO YOU THAT, ALTHOUGH THEY STATED, AT THE EVIDENTIARY HEARING THAT THERE WAS A STRATEGIC REASON THAT THAT WAS UNREASONABLE, GIVEN THEIR DEFENSE IN THIS CASE, TO OPEN THE DOOR AND HAVE THE JURY HERE, WHAT REALLY TURNS OUT TO BE FALSE TESTIMONY, AND I WOULD SAY TO YOU THAT, WITHOUT THE EVIDENCE THAT WE HAVE PRESENTED AT THE EVIDENTIARY HEARING, THE JURY RECOMMENDED DEATH BY 9-3 AND 8-4. NOW, THIS IS WITH THE PERJURED TESTIMONY OF JAMES LEON SMITH, AND IT IS WITHOUT KNOWING THAT PAUL JOHNSON WAS, INDEED, HAD BRAIN DAMAGE. THANK YOU.

THANK YOU, COUNSEL. THANKS. WE WILL BE IN RECESS FOR FIVE MINUTES. BAILIFF: PLEASE RISE.