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NEXT CASE ON THE COURT'S CALENDAR IS MAHARAJ VERSUS THE STATE OF FLORIDA AND MR. SMITH.

THANK YOU VERY MUCH, CHIEF JUSTICE. MAY IT PLEASE THE COURT. MAY NAME IS CLIVE STAFFORD SMITH AND, ALONG WITH MY FRIEND, BEN KOOUN, IT IS A -- KUEHNE, IT IS A PRIVILEGE TO REPRESENT MR. MAKE HA RAJ BEFORE -- MAHARAJ BEFORE THE SUPREME COURT HERE TODAY. I HAVE REPRESENTED A LOT OF PEOPLE IN CAPITAL CASES WHO ARE GUILTY BUT I WOULD STAKE MY LEGAL CAREER THAT KRIS MAHARAJ IS NOT GUILTY OF ANYTHING THAT THIS HAS TO DEAL WITH TODAY. BUT FIRST, TO SHOW THAT HE DIDN'T DO THIS CRIME AND THE WAY THE FACTS HAVE DEVELOPED, I WOULD LIKE TO TOUCH, FIRST, ON THIS QUESTION OF WHAT HAPPENED WITH THE JUDGE IN THIS CASE, BECAUSE I THINK THAT IS THE NARROW AND RELATIVELY SIMPLE ISSUE THAT ONE CAN REACH TO PRESERVE JUSTICE, WITHOUT HAVING TO GO THROUGH THE VERY COMPLICATED FACTS OF THE CASE. THIS COURT'S ROLE, OF COURSE, IS TO PRESERVE THE PALLADIUM OF JUSTICE, AND I DON'T THINK ANYONE COULD LOOK AT A CASE, WHERE THE FIRST JUDGE SOLICITED A BRIBE FROM MR. MAHARAJ, SENT AN ASSISTANT STATE'S ATTORNEY OVER THERE TRY AND GET THE BRIBE, THEN GOT ARRESTED ON THE FOURTH DAY OF TRIAL AND TAKEN AWAY IN HANDCUFFS FOR TAKING BRIBES IN OTHER CASES.

WHAT EVIDENCE DO WE HAVE THAT THE TRIAL JUDGE SENT THE ASSISTANT STATE ATTORNEY THERE?

IT IS UNREBUTTED. PRIOR TO THE TRIAL, MR. --

BUT WHO -- WHAT WITNESS DO WE HAVE THAT STATED THIS?

TWO WITNESSES, YOUR HONOR. THE FIRST WAS THAT THE DEFENSE COUNSEL AT THE TRIAL, MR. HENDON, TESTIFIED THAT HIS CLIENT HAD REPORTED THIS TO HIM. HE TESTIFIED THAT HE WENT TO THE STATE'S ATTORNEY BECAUSE HE WANTED TO --

WHAT DID HIS CLIENT TELL HIM?

HIS CLIENT SAID THIS WOMAN CALLED MARA TRENCHETTE, GAVE HIM THE CARD THAT MS. TRENCHETTE HAD LEFT, AND SAID TO ME THAT FOR $50,000 SHE COULD GET THE JOB DONE ON THAT. WHAT MS. TRENCHETTE SAID AND NEVER CAME TO LIGHT IN THE CASE WAS THAT SHE WAS THE ASSISTANT STATE ATTORNEY IN THE CASE. WE FOUND OUT THAT THEY HAD WRITTEN A HOME-AND LOOKED INTO IT ABOUT THE WHOLE PROCESS. THE PROCEDURAL PROCESS HERE IS CLEARLY ONE OF INEFFECTIVENESS OR A LACK OF KNOWING AND INTELLIGENT WAIVER BY THE CLIENT, BECAUSE CERTAINLY THERE WAS RAISED ON DIRECT APPEAL BUT NOT WITH ALL OF THE FACTS IN PLACE, AND I DON'T THINK THAT THERE IS ANYONE WHO CAN JUSTIFY BEING A DEFENSE LAWYER AND LEARNING THESE FACTS AND NOT REQUESTING A MISTRIAL, AND YET THE FACTS THAT WE HAVE ARE THAT DEFENSE COUNSEL NEVER EVEN MADE THE CONNECTION UNTIL AFTER THE TRIAL, BEFORE THE FORMER SOLICITATION OF BRIBERY AND THE JUDGE BEING TAKEN AWAY IN HANDCUFFS. HE DIDN'T TAKE JUDGE KLEIN'S ADMONITION THAT HE SHOULD TAKE A WHILE TO RESEARCH AND CONSIDER THE ACTIVITY. HE ONLY HAD TESTIMONY THAT HE READ ABOUT IN THE NEWSPAPERS AND IMMEDIATELY HE ADVISES HIS CLIENT TO WAIVE A MISTRIAL AND GO AHEAD, BECAUSE HE THINKS HE IS GOING TO BE ABLE TO IMPEACH PRINCIPLEIES WITH EDDIE DAMES, ANOTHER WITNESS WHO WAS NEVER CALLED CALLED AT THE TRIAL AT ALL. THOSE WERE THE THINGS THAT HE WAS SAYING TO HIS CLIENT, SAYING, LOOK, GO AHEAD, LET'S GO AHEAD AND NOT GET A NEW TRIAL, AND EVEN THOUGH HE WAS TAKEN AWAY IN HANDCUFFS. I DON'T THINK WE CAN NARROW THAT ONE ISSUE, WITHOUT GETTING TO ANYTHING ELSE, AN EFFECTIVE ASSISTANCE OF COUNSEL OR INTELLIGENT KNOWING AND WAIVER ON MY CLIENT'S BEHALF.

LET'S GO BACK FOR A MOMENT, BECAUSE JUSTICE QUINCE ASKED A VERY SPECIFIC QUESTION, BECAUSE YOU HAD MADE THE STATEMENT THAT THIS RECORD SHOWS, UNREBUTTED, THAT JUDGE SOLICITED A BRIBE THROUGH AN ASSISTANT STATE ATTORNEY, AND, YOU KNOW, THE RECORD ESTABLISHES THAT. AND JUSTICE QUINCE ASKED YOU, WHAT EVIDENCE IS THERE IN THE RECORD TO SUPPORT THAT STATEMENT THAT YOU MADE, AS A MATTER OF FACT? YOU KNOW, THAT THAT OCCURRED. NOW WHAT YOU HAVE SAID TO US, AND YOU HAVE ENDED UP SORT OF IN CONCLUSION, IS THAT, WELL, IT TURNS OUT TO BE AN ISSUE OF INEFFECTIVE ASSISTANCE OF COUNSEL. THAT IS THAT MR. MAHARAJ SAID TO HIM THAT SOMEONE APPROACHED HIM AND SAID, FOR $50,000, THE CASE CAN BE TAKEN CARE OF, AND GAVE HIM A CARD. OKAY. NOW, IS THAT THE EXTENT OF THE RECORD? IN OTHER WORDS THAT WE HAVE THE TESTIMONY OF THE LAWYER THAT SOMETIME DURING THE COURSE OF THE TRIAL, THAT HIS CLIENT CAME TO HIM AND SAID I HAVE THIS CARD. IS THE CARD IN THE RECORD, BY THE WAY?

NO, YOUR HONOR. IT WAS LONG SINCE LOST.

WHAT WAS THE EVIDENCE ABOUT WHAT HAPPENED TO THE CARD? THE CARD WAS LONG SINCE LOST. THIS HAPPENED, INCIDENTALLY, LONG BEFORE THE TRIAL.

WHAT I AM HAVING DIFFICULTY WITH, AND WE HAVE GOT TO BE VERY CAREFUL HERE, IS FOR YOU TO REPRESENT TO US THAT THERE ARE FACTS ESTABLISHED BY THE RECORD, UNREFUTED, AS TO ONE THING, FOR INSTANCE, THE VERY SERIOUS CLAIM THAT IT IS UNREBUTTED ON THIS RECORD THAT THE FACTS HAVE ESTABLISHED THAT THE JUDGE SENT AN ASSISTANT STATE ATTORNEY TO SOLICIT A $50,000 BRIBE, AND THAT IS FAR DIFFERENT THAN A CLAIM, NOW, THAT THERE MAY HAVE BEEN SOMETHING GOING ON THAT COUNSEL SHOULD HAVE DONE SOMETHING ABOUT, AND AS A RESULT OF NOT DOING IT, WAS NOT EFFECTIVE COUNSEL. DO YOU UNDERSTAND THE POINT THAT I AM MAKING? ' I UNDERSTAND.

WOULD YOU AGREE THAT THERE IS NOT AN UNREBUTTED SHOWING ON THIS RECORD THAT THE JUDGE SENT A STATE ATTORNEY TO MR. MAHARAJ TO SOLICIT A $50 BRIBE? THAT FACT HASN'T BEEN ESTABLISHED.

I THINK IT HAS, JUSTICE ANSTEAD.

TELL ME. MAYBE I DIDN'T HEAR THAT. EYE WASN'T CLEAR ENOUGH, OBVIOUSLY, BECAUSE, THROUGH ERIC HERNDON'S TESTIMONY THAT IT HAPPENED. THROUGH THE CONCESSION --

LET'S STOP RIGHT THERE. THROUGH WHOSE TESTIMONY?

THAT IS THE LAWYER?

THAT'S RIGHT.

WHAT THE LAWYER IS DOING IS REPEAT WAG HIS CLIENT SAID TO HIM. THAT DOESN'T MAKE IT FACT, DOES IT NOT?

INFORMATION THAT HE LEARNED PRETRIAL, THEN, HE IS UNDER AN OBLIGATION TO FOLLOW UP ON.

NOW WE ARE GETTING TO THE CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL, WHICH I AGREE THAT THAT IS THE -- BUT THAT DOESN'T MAKE IT AN UNREFUTED FACT ON THE RECORD, SAY THAT THE LAWYER HAD HIS CLIENT TELL HIM SOMETHING.

AND THEN THE SECOND ASPECT OF IT, IS JUST TO SHOW THAT ALL OF THIS STUFF WAS KNOWN PRETRIAL, THAT THE STATE'S ATTORNEY HAD CONCEDED AND WRITTEN A MEMO, ON HIS OWN INVESTIGATION, CONFIRMING THAT MARA TRENCHETTE WAS AN ASSISTANT STATE'S ATTORNEY AT THE TIME THE OFFER WAS MADE AND LEFT THE OFFICE A FEW DAYS LATER. THAT IS THE EVIDENCE.

WHY WASN'T THIS EXPLORED LATER? WAS THERE AN ATTEMPT TO PRESENT THIS PERSON AT AN EVIDENTIARY HEARING TO THE TRIAL COURT? THAT IS THE FORMER STATE ATTORNEY?

YOUR HONOR, THE STATE TAKES THE POSITION THAT MS. TRENCHETTE HAD A FIFTH AMENDMENT PRIVILEGE NOT TO ADMIT THIS STUFF. WE DID WHAT WE COULD, BUT WE PRESENTED FURTHER EVIDENCE AND WE COULDN'T.

YOU DIDN'T PRESENT ANY FURTHER EVIDENCE BECAUSE WE COULDN'T. WAS THERE AN ATTEMPT TO BRING THIS WITNESS BEFORE THE COURT?

WE DIDN'T SUBPOENA JUDGE BROTHERS, NO, AND WE DIDN'T SUBPOENA MS. TRENCHETTE, BECAUSE I DON'T FEEL LIKE WE HAD TO. WE WERE ESTABLISHING THE EVIDENCE, SUCH AS IT WAS. NOW, IF ANY OF THAT STUFF WAS NOT TRUE, OR IF IT HADN'T BEEN DEVELOPED, I THINK, THEN THE STATE WOULD --.

DID MR. MAHARAJ TESTIFY?

HE DIDN'T, BECAUSE WE DIDN'T FEEL IT WAS NECESSARY, ONCE HIS LAWYER HAD CONCEDED ALL OF THE FACTS.

WHAT HAVE YOU ESTABLISHED? AS JUSTICE ANSTEAD POINTED OUT, YOU MADE A VERY DEFINITE STATEMENT THAT THIS JUDGE HAD SOLICITED A BRIBE, BUT THE EVIDENCE -- WHAT THE EVIDENCE INDICATES IS THAT A ASSISTANT -- POSSIBLY AN ASSISTANT STATE ATTORNEY WENT TO HIM AND SAID, FOR $50,000, I WILL TAKE CARE OF THIS. WHERE WAS THE JUDGE'S NAME MENTIONED? HOW DO WE KNOW THAT THAT PERSON WAS SENT THERE BY THE JUDGE? I MEAN, YOU MAKE A VERY STRONG ALLEGATION AGAINST SOMEONE, BUT THERE IS, IN MY ESTIMATION, NO EVIDENCE THAT SUPPORTS IT. THAT IS WHAT WE ARE ASKING YOU FOR, THE EVIDENCE THAT SUPPORTS YOUR STRONG STATEMENT THAT JUDGE GROSS SENT THIS LADY TO SOLICIT A BRIBE.

THAT EVIDENCE, THE ONLY EVIDENCE IN THEORD -- IN THE RECORD, I WILL CONFESS, COMES FROM THE DEFENSE LAWYER AND FROM THE STATE'S ATTORNEY, THAT IT WAS TOLD TO THEM BY MR. MAHARAJ LONG BEFORE THE TRIAL. THAT IS ALL THE EVIDENCE THERE IS. I SUBMIT THAT IT IS SUFFICIENT, BUT PERHAPS I SHOULD MOVE ON TO THE BROADER ISSUE IN THIS CASE, IF I MIGHT.

LET ME ASK YOU, DID YOU SAY THAT THERE, ALSO, WAS SUBMITTED INTO EVIDENCE, SOME MEMORANDUM OR VEST GEORGIATORY MATERIALS FROM THE -- INVESTIGATORY MATERIALS FROM THE STATE ATTORNEY'S OFFICE THAT, WHEN THIS WAS TOLD TO THEM, THAT THEY INVESTIGATED IT?

YOUR HONOR, THE MEMORANDUM WAS NOT ADMITTED INTO EVIDENCE, BECAUSE THEY CONCEDED IT ALL ON THE STAND. THEY PROVIDED THAT TO US DURING THE EVIDENTIARY HEARING. WE DID NOT CONCEDE IT.

WHAT WAS CONCEDED ON THE STAND?

THE GIST WAS THAT THEY CONCEDED THAT MS. TRENCHETTE WENT TO MR. MAHARAJ REPORTED TO THEM THAT SHE WENT TO HIM AND TOLD HIM THAT JUDGE GROSS COULD GET THE TRIAL HANDLED FOR $50,000.

WAS THERE ANY FURTHER INVESTIGATION DONE?

NONE FURTHER THAN ESTABLISHING THE ISSUE THAT MS. TRENCHETTE WAS IN THE STATE'S ATTORNEYS OFFICE. I SUBMIT THAT THERE NEEDS TO BE AN INVESTIGATION AT THE TIME OF TRIAL. WE WERE ALL, AS MEMBERS OF THIS BAR, UNDER AN OBLIGATION, ONCE WE HEARD ALL THESE FACTS, TO DO SOMETHING ABOUT, IT AND ONCE THE JUDGE IS TAKEN AWAY, ON THE THIRD DAY OF TRIAL, PRETTY COMPELLING EVIDENCE THAT WHAT MR. MAHARAJ HAD SAID SOME MONTHS BEFORE WAS ACCURATE, SURELY THE SYSTEM HAD BROKEN DOWN, BUT IF THERE IS A PROBLEM, PLEASE LET ME ADDRESS ONE OF THE BROADER ISSUES, BECAUSE LET'S FOCUS, IF I MAY, ON THE WHOLE GANSBY ISSUE, BECAUSE WE ARE DEALING WITH, ON THE BROADER SCALE, WITH A NUMBER OF SUPPRESSED DOCUMENTS THAT TOTALLY CHANGED THE FACE OF THIS CASE AND THAT SHOW THAT, INSTEAD OF IT BEING TWO INNOCENT VICTIMS MAKING $24,000 A YEAR WHO WERE PICKED ON BY THE ONLY PERSON WHO HAD A MOTIVE TO KILL HIM, MR. MAHARAJ, FROM WHAT THE STATE SUPPRESSED, THE DOCUMENTS THAT WERE IN THE VICTIM'S BRIEFCASE, WE LEARNED, FROM THEIR PASSPORTS ABOUT THEM BEING ALL OVER THE CARIBBEAN, THEN WE LEARN THAT THEY ARE LAUNDERING ASSUME TOTAL OF $5 BILLION AROUND THE CARIBBEAN TO DIFFERENT COUNTRIES AND DIFFERENT ORGANIZATIONS -- BEFORE YOU GET TOO FAR INTO THAT, WOULD YOU READDRESS THIS ISSUE ABOUT THE EVIDENCE, ABOUT THE BRIBE AND SUCH, IN TERMS OF YOU HAVING, AVAILABLE, YOUR CLIENT, MR. MAKE HA RAJ, WHO APPARENTLY HAD -- MR. MAKE HAR RAJ -- MR. MAKE HA RAJ -- MAHARAJ, WHO DID NOT TESTIFY TO THE TRIAL COURT HERE, TO THE COLLATERAL PROCEEDINGS JUDGE ABOUT, THE INCIDENT?

MR. CLOONEY AND I MADE THE DECISION, AND BLAME ME IF THIS WAS AN ERROR, THAT THIS WAS NOT NECESSARY, THAT ONCE WE HAVE INTRODUCED THE SUBSTANTIVE EVIDENCE, THAT BOTH THE DEFENSE LAWYER AND THE PROSECUTION KNEW THESE FACTS, SO WE FELT LIKE THAT WASN'T NECESSARY. NOW, BLAME ME FOR THAT. I THINK WE DID INTRODUCE SUFFICIENT EVIDENCE, AND I DON'T SEE HOW MR. MAHARAJ'S TESTIMONY TO EXACTLY THE SAME FACTS WOULD ADD TO THAT, BUT, NO, WE DIDN'T CALL HIM, SOLELY BECAUSE WE THOUGHT WE HAD ALREADY MADE OUR CASE.

WHEN DID THE LAWYER TESTIFY THAT HE WENT TO THE STATE ATTORNEY?

IMMEDIATELY AFTER HE GOT THIS INFORMATION, HE SAID I WENT TO THE STATE'S ATTORNEY, TOLD THEM WHAT MY CLIENT HAD SAID, AND YOU KNOW, THAT WAS THE END OF IT. AT THE TIME, HE WAS SORT OF INCREDULOUS, AND I THINK THIS IS A REASONABLE THING. I THINK IF I WAS THE TRIAL LAWYER AT THAT TIME, IT WOULD BE DIFFICULT TO SAY, HEY, JUDGE, YOU WERE TRYING TO BRIBE MY CLIENT, BUT, WHEN ALL OF THIS COMES TO FRUITION, PERHAPS DURING THE TRIAL, WHEN THE JUDGE IS TAKEN AWAY, THEN YOU HAVE TO PUT TWO AND TWO TOGETHER, AND AT THAT POINT, THE REAL CRUX, JUSTICE ANSTEAD, OF THIS, IS DEFENSE COUNSEL COULD NOT WAIVE A MISTRIAL AT THAT POINT, IF COUNSEL HAD PUT TWO AND TWO TOGETHER, EVEN IF THE SUM DOUBT AS TO EXACTLY WHAT IS PROVEN AND WHETHER WE COULD CONVICT JUDGE GROSS --.

AT THAT TIME THE PROSECUTING ATTORNEY HAD BEEN INFORMED. IS THAT CORRECT? THAT IS THE LAWYER FOR THE STATE THAT WAS PROSECUTING MR. MAKE HA RAJ IN THE COURTROOM -- MR. MAHARAJ IN THE COURTROOM WAS AWARE OF WHAT WAS SAID ABOUT THE ATTEMPTED BRIBE.

AND AT THAT POINT THE LAWYER FOR THE STATE DID NOT CONFIRM TO DEFENSE COUNSEL THAT THIS WAS, INDEED, AN ASSISTANT STATE'S ATTORNEY, AND DEFENSE COUNSEL --

WAS THERE EVER ANY RECORD TO THIS REPORT OR THIS ATTEMPTED BRIBE? IN OTHER WORDS ANYWHERE IN THE COURT PROCEEDINGS, IS THAT PUT ON THE COURT RECORD?

NOT UNTIL WE GET INTO POST-CONVICTION. NOT UNTIL OUR HEARING, AND I THINK THAT IS THE CRUX OF IT, WHETHER THAT SIMPLE FACT IS INEFFECTIVENESS OF COUNSEL.

SO YOU ARE SAYING NO REASONABLE ATTORNEY, KNOWING THAT THE JUDGE HAS JUST BEEN TAKEN AWAY AN ARRESTTED FOR BRIBERY, AND HAVING BEEN TOLD BY HIS CLIENT ABOUT A BRIBE SOLICITATION, PRETRIAL, IN THAT CASE, NO REASONABLE ATTORNEY WOULD HAVE MADE A STRATEGIC DECISION NOT TO MOVE FOR A MISTRIAL?

GIVEN THE FACT THAT DEFENSE COUNSEL TESTIFIED --

I SHOULDN'T SAY NOT TO MOVE. HE WAS OFFERED THE OPPORTUNITY TO BEGIN A MISTRIAL.

THE CRUCIAL ASPECT --

IS THAT CORRECT?

IT IS A LITTLE NEAR REMEMBER THAN THAT, JUSTICE. THE -- NEAR REMEMBER THAN THAT, JUSTICE -- NARROWER THAN THAT, JUSTICE. THE CRUCIAL ASPECT IS THAT DEFENSE COUNSEL DID NOT MAKE THE CONNECTION. IT WAS AFTER THE MISTRIAL THAT HE MADE THE BRIBE ATTEMPT AND THIS, AND HE BECAME AWARE THAT THE TWO WERE RELATED, AND SO HE ADVISED HIS CLIENT, BASED ON THAT INVESTIGATION AND NO INVESTIGATION WHATSOEVER, THAT THERE WAS NO NEED TO --

WITHOUT THE BRIBERY IN THIS CASE, WOULD THE COURT HAVE, AS A MATTER OF LAW, TO GRANT A MISTRIAL? IN OTHER WORDS ARE WE STILL DEALING WITH A DISCRETIONARYISH SGLU LET'S ASSUME THAT IT WAS TRUE THAT THERE HAD BEEN A BRIBE SOLICITATION. EXCUSE ME. I HAVE A COLD.

SO DO I.

AND THAT FOUR DAYS INTO THE TRIAL, AS HAPPENS, HE IS CARRIED AWAY FOR HAVING DONE SOMETHING WRONG IN THIS CASE. IS THERE A RULE OF LAW THAT SAYS THAT THERE IS REALLY NOT SOMETHING THAT CAN BE WAIVED. THAT ABSOLUTELY THAT THE INTERESTS OF JUSTICE HAVE NOW BEEN SO PERVERTED THAT WE MUST START A NEW?

-- AND NEW?

I THINK THERE HAS TO BE -- THAT WE MUST START ANEW?

I THINK THERE HAS TO BE. ONE OF THE POSITION THAT WE TAKE IN OUR BRIEF IS THAT THE JUDGE IS UNDER A SUA SPONTE DUTY TO THE STATE, HIM OR HERSELF, AND THE STATE DOESN'T HAVE TO SUBMIT THAT THERE IS A CRIMINAL OFFENSE, BUT THERE COMES A POINT, WHEN YOU, AS THE SUPREME COURT, AS THE PALLADIUM OF JUSTICE IN THIS STATE, AS -- HAS TO SAY, AS WITH JUSTICE BRADY IN THE CHICAGO STINK, THAT WE HAVE TO DEAL WITH THIS.

THAT ESTABLISHEST FACTS ARE TRUE. THE OTHER WAY IS MAYBE THE ATTORNEY SHOULD HAVE MADE A CONNECTION AND HAVE REASSESSED WHETHER TO TAKE THE MISTRIAL IS A DIFFERENT ISSUE, ISN'T IT?

TOTALLY DIFFERENT ISSUE.

BECAUSE THE ISSUE INVOLVING THE ATTORNEY IS NOT THE ISSUE AS TO THE BRIBERY, PER SE. THE YIRB OF THE ATTORNEY IS TO -- THE ISSUE OF THE ATTORNEY IS TO EVALUATE WHERE THE CASE STANDS, AT THAT PARTICULAR MOMENT, FOR THE BENEFIT OF THE CLIENT.

THAT IS ABSOLUTELY TRUE. EVALUATED IN ALL OF THE FACTUAL CONTEXTS AND GIVE ADVICE BASED ON THE CONTEXT. YOU KNOW, THERE ARE SO MUCH MORE IMPORTANT ISSUES IN THIS CASE, EVEN, THAN THIS ISSUE.

I THOUGHT YOU WERE MOVING TO BRADY.

I CERTAINLY WAS, BUT IT SAYS 16.OF IT IS GONE, AND I REALLY HAVE TO CONCEDE --

LET'S STOP TALKING ABOUT THE BRIEFCASE, AND I GATHER YOU WERE GOING INTO IT.

I AM SURE I WILL NOT HAVE TIME TO DO THIS, BUT I WOULD LIKE TO IDENTIFY THAT THERE ARE ELEVEN DIFFERENT AREAS, GOING ONE, TWO, THREE, FOUR, FIVE, WHERE THE ENTIRE STATE'S CASE GETS VICE RATE THE -- VISCERATED BY THE STATE'S CASE, AND THE QUESTION ABOUT THE VICTIMS BEING INVOLVED IN MASSIVE MONEY LAUNDERING ACROSS THE CARIBBEAN, AND THERE IS CLEARLY MUCH MORE EVIDENCE THAN THAT THAT CLEARLY THESE FOLKS ARE A VICTIM OF DRUG HITS.

ARE YOU SAYING THAT THE STATE KNEW THESE PEOPLE WERE DRUG TRAFFICKERS, MONEY LAUNDERERS, AND SUPPRESS THAT EVIDENCE?

THEY CLEARLY HAD ALL OF THAT EVIDENCE. ALL THE EVIDENCE THAT LED US TO THAT CONCLUSION, BUT MUCH MORE IMPORTANT STUFF, SUCH AS THE PERJURY OF THEIR CLIENT, OF THEIR WITNESS, IN REBUTTAL, THROUGH THE WHOLE POLYGRAPH ISSUE AND WHY HE CHANGED HIS STORY, GOES ON AND ON AND ON. BUT I AM SORRY. I JUST CAN'T DEAL WITH THAT.

THE STATE'S ANSWER TO, I BELIEVE, YOUR BROAD QUESTION THAT YOU ARE TRYING TO GET TO, IS THAT YOU KNEW OF THE BRIEFCASE. THE DEFENDANT'S COUNSEL KNEW OF THE BRIEFCASE, AND IF THEY WANTED TO FOLLOW IT UP, THEY COULD HAVE AND DID NOT.

YOUR HONOR, DETECTIVE JOHN BURNMASTER EXPLICITLY LIED TO THE INVESTIGATOR AND SAID THAT HE DIDN'T HAVE THE STUFF ANYMORE, AND THEN THEY DID HAVE IT.

BUT YOU ARE SAYING THAT THE BRIEFCASE HAD NOT BEEN GIVEN TO THE DEFENDANT'S FAMILY?

I DON'T KNOW WHETHER IT HAD OR NOT BUT HE HAD IT IN HIS POSSESSION, AND HE HAD PHOTOGRAPHS OF IT IN THE FILE WHEN I WENT THERE, NOT JUST ORIGINAL, SO THEY HAVE HAD THAT STUFF ALL ALONG, BUT CERTAINLY THEY ARE UNDER AN OBLIGATION TO TELL THE DEFENSE, WHEN THEY GOT IT BACK, IF THEY DID HAVE IT, IF THEY DID GET IT. THERE WAS SUPPRESSION. THERE ARE SO MANY ISSUES THIS THIS CASE AND I CAN'T DEAL WITH THEM. COULD I RECOGNIZE --

WE WILL GIVE THEM AN OPPORTUNITY.

THAT IS VERY KIND, CHIEF JUSTICE, BECAUSE I HAVE TAKEN FAR MORE THAN I SHOULD HAVE.

MAY IT PLEASE THE COURT.

YES.

YOUR HONORS, I APPEARED HERE ON THE FOURTH OF APRIL OF 1996. ON BEHALF OF THE BAR OF ENGLAND AND WALES. WE PRESENTED AN A.M. I CUSS BRIEF. WE -- AN AMICUS BRIEF. WE PRESENTED THE SAME MESSAGE TO YOU, THE QUESTION BEING FOLLOWING THE ARREST OF THE TRIAL JUDGE, DID THE TRIAL MEET INTERNATIONAL STANDARDS OF FAIRNESS? AND IF ONE STANDS BACK AND LOOKS AT WHAT HAPPENED HERE, CAN IT REALLY BE SAID, FROM INTERNATIONAL STANDARDS OF FAIRNESS, THAT THIS WAS A FAIR TRIAL? MR. MAKE HA RAJ IS A BRITISH SIT -- MR. MAHARAJ IS A BRITISH CITIZEN. HE OWES ALLEGIANCE TO HER IMAGES CITY THE QUEEN. THE COURTS OF THE STATES AND OTHERS HAVE LOOKED TO THE BRITISH COURTS FOR GUIDANCE. THE UNITED STATES IS ENTERED INTO VARIOUS INTERNATIONAL OBLIGATIONS. WE DO NOT SAY THAT THOSE ARE INCONSISTENT OR SUPERIOR TO CONSTITUTIONAL RIGHTS IN THE UNITED STATES, BUT WE SUBMIT TO YOU THAT THEY COMPLEMENT THE CONSTITUTIONAL RIGHTS OF AN INDIVIDUAL APPEARING BEFORE A COURT ON A CRIMINAL CHARGE, WHERE HE IS FACING THE DEATH PENALTY. WE SUBMIT TO THE COURT THAT, IF ONE STANDS BACK AND LOOKS AT THE ISSUES HERE, WHERE THE JURORS WERE INDIVIDUALLY POLLED, WHERE THE JURORS SAW, ON THEIR TELEVISION SETS, MR. MAHARAJ'S TRIAL JUDGE BEING TAKEN AWAY, UNDER ARREST, WHAT AFFECT DOES THAT HAVE ON THE MINDS OF THE JURORS? CAN THEY ENTIRELY EXCLUDE MR. MAHARAJ FROM BEING, IN SOME WAY, INVOLVED? WE SUBMIT THAT MR. MAHARAJ IS ENTITLED TO LOOK TO THE UNITED STATES COURTS TO UPHOLD THOSE FUNDAMENTAL FREEDOMS AND THOSE OBLIGATIONS WHICH THE INTERNATIONAL TREATIES GIVE HIM, AND WE SUBMIT THAT, IF ONE STANDS BACK AND LOOKS HERE, AT WHAT HAPPENED, CAN IT REALLY BE SAID THAT JUSTICE WAS DONE? THANK YOU.

THANK YOU, MR. STAFFORD. YOU WILL BE GIVEN YOUR MINUTE AND-A-HALF.

I WOULD LIKE TO PRESENT SIX SHORT POINTS, ON BEHALF THE HOUSE OF PARLIAMENT AND THE HOUSE OF LORDS. FIRST, MY CLIENTS LOOK TO AND RESPECT THE UNITED STATES FOR ITS EMPHASIS ON THE RULE OF LAW AND ON THE IMPORTANCE OF DUE PROCESS. SECOND, THE PRINCIPLES UPON WHICH THEY GOVERN AND BY WHICH THEY ARE BOUNDARIES ON THE FUNDAMENTAL BASIS OF A RIGHT TO A FAIR TRIAL BEFORE AN INDEPENDENT TRY BUNL. -- TRY BUNAL. A FAIR TRIAL -- TRIBUNAL. A FAIR TRIAL, UNDER OUR LAW, MATCHES AN EFFECTIVENESS TEST. IT DOES TO THE SHOW WHETHER AN INDIVIDUAL JUDGE CAN BE SHOWN TO HAVE BEEN BIASED. JUSTICE REQUIRES THAT NO REASONABLE PERSON SHOULD HAVE GROUNDS FOR THINKING THAT THE WHOLE PROCESS MIGHT NOT HAVE BEEN FAIR. CRITICALLY, MY FOURTH POINT, IS A MATTER OF PUBLIC AND NOT PRIVATE INTEREST. THERE IS A PUBLIC GOOD IN THE QUALITY, TRANSPARENTLY FAIR AND IMPARTIAL JUDICIAL SYSTEM. FIFTHLY, ON NEW VIEW CAN A TRIAL, WHERE THE VERY JUDGE IS ARRESTED MIDTRIAL, ON ALLEGATIONS OF CORRUPTION, BUT THAT TRIAL CONTINUES, MEET THIS OBJECTIVE TEST, SATISFY THAT PUBLIC NEED. SIX AND FINALLY, UNDER EUROPEAN LAW, AND WE, ALSO, HAVE EXAMPLES OF JUDICIAL MISMANAGEMENT, THIS CONVICTION, UNDER THIS PROCESS, WOULD BE FUNDAMENTALLY FLAWED, AND ONE WHICH WE, AS LAWYERS, AND AS CITIZENS, COULD NOT RESPECT. IT WOULD BE QUASHED. I RESPECTFULLY ASK THIS COURT TO TAKE THIS POSITION INTO ACCOUNT IN ITS DELIBERATIONS. THANK YOU.

THANK YOU.

COUNSEL. MS. JAGGARD.

MAY IT PLEASE THE COURT, SANDRA JAGGARD, ASSISTANT ATTORNEY GENERAL ON BEHALF OF THE STATE. AS BOTH JUSTICE QUINCE AND JUSTICE ANSTEAD POINTED OUT, THERE WAS NO EVIDENCE THAT MS. TRENCHETTE WAS SENT BY THE TRIAL JUDGE TO SOLICIT A BRIBE. THE EVIDENCE WAS, FROM MR. HENDON AND THE STATE ATTORNEY, THAT THE DEFENDANT HAD REPORTED THAT MS. TRENCHETTE HAD APPROACHED HIM AND REQUESTED A $50,000 RETAINER, AND THAT SHE PROMISED THAT, IF HE DID THAT, HE WOULD -- SHE WOULD BE ABLE TO ARRANGE BAIL FOR HIM. THEY LOOKED INTO IT. MS. TRENCHETTE WAS, AT THE TIME WITH THE STATE'S ATTORNEYS OFFICE AND IN THE PROCESS OF LEAVING TO GO INTO PRIVATE PRACTICE.

DID THE STATE ATTORNEY'S OFFICE CONVEY THAT INFORMATION TO DEFENSE COUNSEL?

IT IS NOT CLEAR FROM THE RECORD WHETHER THEY DID OR THEY DIDN'T. THE POINT IS, THOUGH, THAT THERE IS NO CONNECTION BETWEEN HER AND THE TRIAL JUDGE. FROM WHAT IS ON THE RECORD, THE TRIAL COUNSEL'S THOUGHTS AT THE TIME, THAT SHE WAS SIMPLY TRYING TO STEAL HIS CLIENT, IS SUPPORTED BY THE RECORD EVIDENCE.

WHAT CONCESSION DID THE STATE ATTORNEY'S OFFICE MAKE, IF ANY, OPPOSING COUNSEL IMPLIED THAT THE STATE CONCEDED CERTAIN THINGS.

THE STATE ATTORNEY ACKNOWLEDGED THE DEFENSE COUNSEL HAD INFORMED HIM, PRETRIAL, THAT HIS CLIENT HAD INFORMED DEFENSE COUNSEL THAT MS. TRENCHETTE HAD COME AND REQUESTED THIS RETAINER, AND THE STATE ATTORNEY LOOKED INTO IT, FOUND OUT THAT SHE WAS A STATE ATTORNEY IN THE PROCESS OF LEAVING THE OFFICE.

AND DID -- WAS THE PROSECUTOR QUESTIONED ABOUT THE EXTENT OF JUDGE GROSS'S INVOLVEMENT IN THIS REQUEST BY THE ASSISTANT STATE ATTORNEY?

THERE IS NO EVIDENCE WHATSOEVER OF ANY INVOLVEMENT BY JUDGE GROSS IN ANYTHING THAT MS. TRENCHET DID. -- I UNDERSTOOD THE REPRESENTATION TO BE THAT THE CLIENT, MR. MAKE HA RAJ HAD SAID THAT -- MAHARAJ HAD COME TO HIM AND ASKED FOR THAT AMOUNT, $.

,000, AND WAS SLITTING THAT AMOUNT ON BEHALF OF THE JUDGE TO BRIBE, AND THAT THE CHARGES WOULD THEN BE DISMISSED OR TAKEN CARE OF, AND THAT IS WHAT THE LAWYER REPORTED TO THE STATE ATTORNEY.

NO. NO.

THAT THE CLIENT HAD CONVEYED, AND THAT THE REPRESENTATION IS THAT THAT IS WHAT THE STATE ATTORNEY KNEW, THEN, AND THAT THE STATE ATTORNEY, THEN, CAME BACK AND REPORTED TO THE LAWYER THAT, YES, THAT LAWYER DOES WORK, YOU KNOW, FOR OUR OFFICE, SO HELP US WITH THE -- WHAT DID THE LAWYER TESTIFY TO? THE LAWYER DID TESTIFY HERE, AT THESE COLLATERAL PROCEEDINGS. IS THAT CORRECT?

YES, HE DID.

WHAT DID THE LAWYER SAY MR. MAHARAJ TOLD HIM?

THE LAWYER SAID MR. MAHARAJ TOLD ME THAT MS. TRENCHET CALM TO SEE ME, INFORMED ME THAT, IF MR. MAHARAJ HIRED MS. TRENCHET --

JUST A SECOND. ARE YOU REPEATING THE WORDS OF DEFENSE COUNSEL OR PROSECUTOR? WHICH PERSON ARE WE TALKING ABOUT?

DEFENSE COUNSEL. DEFENSE COUNSEL SAID HIS CLIENT TOLD HIM THAT MS. TRENCHET CAME UP TO THE JAIL AND SAW THE CLIENT, THAT MS. TRENCHET SAID YOU RETAIN ME. YOU DROP MR. HENDON. YOU MAY ME YOUR LAWYER. YOU PAY ME A $50,000 RETAINER, AND I WILL GET YOU BAIL.

SO THE LAWYER, THERE IS NO TESTIMONY FROM THE LAWYER THAT HIS CLIENT CAME TOM AND SAID THIS OTHER LAWYER CAME TO ME AND SAID SHE WAS SENT BY THE JUDGE TO SOLICIT A $50,000 BRIBE TO DISPOSE OF THIS CASE?

NO. THE EVIDENCE IS A $.

,000 RETAINER REQUEST TO HIRE HER, SINCE SHE WAS LEAVING THE STATE ATTORNEY'S OFFICE AND GOING INTO PRIVATE PRACTICE, AS HIS ATTORNEY, AND THAT IF HE DID THAT, SHE WOULD BE ABLE TO -- THAT SHE AND JUDGE GROSS GOT ALONG, AND THAT SHE WOULD BEABLE TO GET HIM TO GIVE BOND. THERE IS NOTHING THAT SAYS THAT JUDGE GROSS SENT HER. THERE IS NOTHING TO THIS DAY THAT SAYS THAT JUDGE GROSS SOLICITED A BRIBE THROUGH MS. TRENCHET.

YOU HAVE ADDED A LITTLE ADDITIONAL MORSEL THERE, WHEN YOU SAY -- WHAT WAS THE TESTIMONY --

THEY HAD A RELATIONSHIP.

WHAT WAS THE TESTIMONY ABOUT THAT SHE GOT ALONG WITH JUDGE GROSS?

THAT IS IT. THAT SHE GETS ALONG WITH JUDGE GROSS AND SHE CAN GET HIM BOND. THAT IS IT. THERE IS NOTHING TO SHOW THAT JUDGE GROSS WAS IN ANY WAY, WHATSOEVER, INVOLVED IN THIS INCIDENT.

AND WHAT DID THE STATE, THEN, TESTIFY TO? WHAT WAS IN THE MEMORANDUM THAT VERIFIES THAT OBVIOUSLY THE DEFENSE LAWYER THOUGHT THAT THIS WAS SIGNIFICANT ENOUGH TO ADVISE THE STATE ATTORNEY'S OFFICE OF IT.

THAT THEY CHECKED INTO IT AND MS. TRENCHET WAS A STATE ATTORNEY THAT WAS LEAVING THE OFFICE. THAT IS T.

BUT THEY DIDN'T THEN TELL THE DEFENSE LAWYER THAT THIS PERSON WHO HAD COME TO HIS CLIENT AND WHO, IN FACT, WASN'T JUST A LAWYER BUT WAS AN EMPLOYEE OF THE STATE ATTORNEY'S OFFICE AT THE TIME.

WHO HAD NO CONNECTION WHATSOEVER WITH THIS CASE.

THAT IS A CONCLUSION AT SOME POINT. I THINK MY QUESTION, I HAVE A QUESTION AS TO, ONCE THE JUDGE WAS ARRESTED, BECAUSE OF BRIBES IN OTHER CASES, WERE THERE -- WAS THIS IN OTHER CASES? WASN'T IT INCUMBENT UPON THE STATE TO COME FORTH WITH THE SPECIFICS OF THIS INFORMATION AND FURTHER TO INVESTIGATE WHETHER THIS -- THERE WAS A BRIBE SOLICITATION? AND DID ANYTHING LIKE THAT EVER HAPPEN? IN OTHER WORDS WAS THERE EVER AN INVESTIGATION, AFTER JUDGE GROSS WAS ARRESTED?

IT IS NOT ON THIS RECORD, YOUR HONOR. NOBODY THOUGHT THIS WAS A BRIBE, IS THE BIG THING. EVERYBODY THOUGHT THAT THIS WAS JUST AN ATTORNEY ATTEMPTED TO STEAL A CLIENT.

THIS PUT IN A TOTALLY DIFFERENT LIGHT.

WAIT. THE ATTORNEY REPORTS IT TO THE STATE'S ATTORNEY'S OFFICE, BECAUSE HE THINKS THAT HIS CLIENT -- WHAT WOULD BE THE REASON FOR HIM TO REPORT IT?

BECAUSE HE THOUGHT SHE WAS STILL EMPLOYED WITH THE STATE ATTORNEY'S OFFICE. AND SHE COULDN'T UNDERSTAND HOW A STATE ATTORNEY WAS GOING TO BE A DEFENSE ATTORNEY.

I GUESS WE WILL BE ABLE TO LOOK AT THE RECORD, RIGHT. OF THE BOTH, THE TESTIMONY OF THE LAWYER AND THE PROSECUTOR AND SEE EXACTLY WHAT THIS RECORD SHOWS.

YES. BUT ALL IT SHOWS IS THAT THEY ASSUMED THAT IT WAS A LAWYER TRYING TO STEAL A CLIENT.

JUSTICE ANSTEAD. MY QUESTION IS, AND I AM CONCERNED WHETHER OR NOT THIS WAS PUT IN AN ENTIRELY DIFFERENT LIGHT, NOW, WHEN THE JUDGE IS ARRESTED, AND LITERALLY TAKEN FROM THE BENCH, FOR BRIBES IN OTHER CASES. SO NOW WHAT WE HAVE IS A JUDGE THAT IT BECOMES WIDELY KNOWN AMONGST THE PARTICIPANTS IN THIS TRIAL, THAT THIS IS A JUDGE WHO AT LEAST ANOTHER PROSECUTING AUTHORITY HAS FOUND THAT THERE IS SUFFICIENT EVIDENCE, HAS SOLICITED BRIBES IN OTHER CASES, AND NOW WE COMBINE WHAT HAPPENED HERE WITH SOMEBODY COMING TO THE DEFENDANT AND SAYING THAT I HAVE A GOOD RELATIONSHIP WITH THIS JUDGE, OKAY, AND NOW THAT COULD MEAN ANYTHING. THAT IS ALL THE WAY FROM, YES, I HAVE A GOOD RELATIONSHIP WITH THIS JUDGE AND WITH A $50,000 RETAINER, THAT I COULD SPLIT 50-50 WITH THE JUDGE, I CAN BE PRETTY CERTAIN THAT I CAN GET YOU BAIL IN THIS CASE, OR ANYTHING ELSE. I MEAN, ONCE -- NOW IT PUTS THAT CONTACT WITH THE DEFENDANT, IT SEEMS TO ME, IN AN ENTIRELY DIFFERENT LIGHT. WHY WASN'T THIS SOMETHING THAT EVERYBODY STOOD UP IN THE COURTROOM AND SAID, MY GOD! THIS IS OUTRAGEOUS! THAT A LAWYER IN THE PROSECUTING ATTORNEY'S OFFICE, WAS THE LAWYER STILL EMPLOYED AT THE STATE ATTORNEY'S OFFICE AT THAT TIME?

SHE WAS EMPLOYED AT THE TIME SHE WENT TO SEE HIM. SHE WAS IN THE PROCESS. SHE HAD ALREADY TURNED IN HER RESIGNATION AND WAS LEAVING.

BUT SHE WAS STILL IN THAT OFFICE. OKAY. I MEAN, ISN'T THIS SOMETHING THAT CRIES OUT TO BE PUT ON A PUBLIC RECORD? AND TO BE CALLED TO EVERYBODY'S ATTENTION WAS ANYTHING EVER DONE TO THIS LAWYER?

NO. NOT THAT I AM AWARE OF.

THERE WERE NO BAR PROCEEDINGS HAD? OR OTHER --

NOT THAT I AM AWARE OF.

NOT THAT I AM AWARE OF. NOBODY EVER SAID THAT THIS WOMAN DID ANYTHING OTHER THAN TO TRY TO STEAL HIS CLIENT. IT IS THE STATE'S BURDEN TONE PROVE ALLEGATIONS.

WHEN THE JUDGE WAS ARRESTED AND TAKEN AWAY, MR. SMITH INDICATED THAT THE DEFENDANT WAS OFFERED THE OPPORTUNITY FOR MISTRIAL, AND TO START IT ALL OVER AND BEGIN IT ALL AGAIN. TELL ME ABOUT THAT.

HE WAS OFFERED THE OPPORTUNITY FOR A MISTRIAL. THE DEFENSE DECLINED IT. THEY CAME UP ON APPEAL BEFORE THIS COURT ON DIRECT APPEAL, AND THEY SAID THAT THERE SHOULD HAVE BEEN AN AUTOMATIC RECUSAL. THEY SHOULDN'T HAVE LET IT, THE CLIENT WAIVE IT, AND THIS COURT DETERMINED THAT THAT WAS NOT SO, AND SO ANY CLAIM THAT AN AUTOMATIC RECUSAL SHOULD HAVE OCCURRED NOW IS BARRED.

NOW, EX-EXCEPT DID THIS COURT HAVE -- NOW, EXCEPT DID THIS COURT HAVE ON THE RECORD THE INDICATION THAT WE HAVE OF THIS PREVIOUS SOLICITATION, WHATEVER YOU CALL IT? THAT WAS NOT -- COULD NOT HAVE BEEN ON THE DIRECT APPEAL RECORD, BECAUSE, AS YOU ANSWERED IN RESPONSE TO JUSTICE ANSTEAD, THIS STATE NEVER PUT IT ON THE RECORD. SO WE DIDN'T HAVE, I AM JUST -- WE DIDN'T HAVE THE BENEFIT OF THIS OTHER INFORMATION THAT MAY TIE JUDGE DPROS IN WITH DIRECTLY DOING SOMETHING IMPROPER IN THIS CASE.

AND IF IT DID, THAT WOULD AND DIFFERENT CASE, BUT IT DOESN'T.

WHAT I AM SAYING IS WE DIDN'T HAVE THAT, ON DIRECT APPEAL. CORRECT? NONE OF THAT EVIDENCE WAS BEFORE THIS COURT.

AND YOU STILL DON'T HAVE THAT OPPOSE THE CONVICTION. -- ON POST-CONVICTION. THE DEFENDANT ELECTED TO WAIVE THE MISTRIAL. THE ATTORNEY FOR THE DEFENDANT, MR. MAHARAJ DID NOT TESTIFY AT THE EVIDENTIARY HEARING HAD, THAT HE SPOKE TO HIS CLIENT, THAT HE LEFT THE FINAL DECISION TO HIS CLIENT, BUT THAT HE ADVISED SEEKING A MISTRIAL, BECAUSE HE LIKED THE JURY. HE THOUGHT TRIAL WAS GOING WELL. HE THOUGHT HE WOULD HAVE HIS BEST OPPORTUNITY TO USE ONE STATE WITNESS TO IMPEACH ANOTHER, AND HE THOUGHT THAT, SINCE HIS ENTIRE THEME WAS THAT THIS WAS ALL CORRUPTION, THAT HAVING A CORRUPT JUDGE ARRESTED WOULD REINFORCE HIS DEFENSE TEAM THAT THE -- THEME THAT THE STATE WAS CORRUPT, AND THEREFORE HE ADVISED THE CLIENT AGAINST SEEK AGO MISTRIAL. THE CLIENT TOOK THE ADVICE. THE CLIENT IS A COLLEGE COLLEGE-EDUCATED GENTLEMAN. HE KNOWINGLY, INTELLIGENTLY WAIVED HIS RIGHT TO THE MISTRIAL. WITH REGARD TO THE BRADY ISSUE, NONE OF THE BRADY CLAIMS --

LET ME ASK YOU ONE QUESTION, BEFORE YOU LEAVE THAT, AND THAT IS HAS THERE BEEN ANY ALLEGATIONS MADE ABOUT ANYTHING THAT THE ORIGINAL TRIAL JUDGE DID THAT PREJUDICES THIS DEFENDANT?

THE ALLEGATIONS -- THAT WOULD LEAD EVEN MORE CREDENCE TO THE FACT THAT THERE SHOULD HAVE BEEN A MISTRIAL?

THE ONLY ALLEGATIONS ARE MR. HENDON FELT THAT, AFTER THE TRENCHET INCIDENT --

AFTER THE WHAT INCIDENT?

THE TRAMPBLINGET INCIDENT, THE APPROACH BY MS. TRENCHET, THAT -- THE TRENCHET INCIDENT, THE APPROACH BY MS. TRENCHET, THAT THE JUDGE WAS NO LONGER QUITE AS FRIENDLY ON SCHEDULING MATTERS, THAT IT DID NOT AFFECT ANY SUBSTANTIVE RULINGS IN THE CASE BUT THAT HE JUST FELT THAT THE JUDGE WAS NOT AS POLITE TO HIM ABOUT SCHEDULING MATTERS AND THAT WAS IT. HE HAD NO ISSUE WITH ANY OF THE SUBSTANTIVE RULINGS OF THE COURT.

WHAT DAY OF THE TRIAL DID THE ARREST OCCUR? HOW FAR INTO THE TRIAL AND HOW LONG WAS THE ORIGINAL TRIAL? I BELIEVE IT WAS TWO OR THREE DAYS. I AM NOT SURE.

THE THIRD DAY, WASN'T IT?

HOW LONG DID THE TRIAL LAST?

SEVERAL WEEKS.

WAS THE JURY TOLD WHAT HAD OCCURRED IN IN OTHER WORDS IN ACTUALALITY? WAS THE JURY TOLD?

I BELIEVE THEY HAD JUST BEEN TOLD THAT THE JUDGE WAS REMOVED.

WELL, WAS THE JURY -- HOW WAS HE REMOVED?

HE WAS ARREST FED ON THE BENCH.

IT -- HE WAS ARRESTED ON THE BENCH.

IT PAINT ADD PICTURE OF HE WAS ACTUAL -- IT PAINTED A PICTURE OF HE WAS ACTUALLY ARRESTED IN FRONT OF THE JURY?

I AM NOT SURE IF HE WAS ARRESTED IN FRONT OF THE JURY OR NOT, BUT HE WAS ARRESTED ON THE BENCH. WITH REGARD TO THE BRADY INCIDENT, NONE OF THE CLAIMS OF WITHHELD EVIDENCE CHANGED THE FACT THAT THIS ROOM WAS CLEANED BEFORE THE MURDER, AND YET THE DEFENDANT'S FINGERPRINTS ARE FOUND ON A COKE CAN THAT IS BROUGHT INTO THE ROOM. THEY ARE FOUND ON THE HEATER EMERTION CORDS THAT ARE USED TO BIND THE -- EMERSION CORDS THAT ARE USED TO BIND THE VICTIMS. THEY ARE FOUND ON A DO NOT DISTURB SIGN THAT IS MOVED FROM THE BACK OF THE DOOR TO THE FRONT OF THE DOOR, THE DOOR IN THE MIDDLE OF THE -- DURING THE MIDDLE OF MURDERS. THEY DO NOT CHANGE THE FACT THAT THE DEFENDANT OWNS ONE OF THE LIMITED CLASS OF GUNS THAT WAS USED IN THIS MURDER. IT DOES NOT CHANGE THE FACT THAT THE DEFENDANT WAS STALKING THE VICTIM, AND WITH ALL DUE RESPECT, THEY KNEW ABOUT THE POLYGRAPH. THE TESTIMONY IS THAT HE PASSED THE POLYGRAPH REGARDING THE ISSUE OF WHAT OCCURRED DURING THE MURDER.

THERE WAS I WITNESS TESTIMONY IN THIS CASE.

YES. THE EYEWITNESS PASSED THE POLYGRAPH, REGARDING WHAT OCCURRED DURING THE MURDER. THERE WAS ONE QUESTION ON WHICH WHAT OCCURRED AFTER THE MURDER, HE WAS FOUND SDEPIVITY -- DECEPTIVE, AND THERE WERE TWO MORE QUESTIONS ON WHICH IT WAS FOUND INCLUSIVE. HE DID NOT FAIL THE POLYGRAPH. THE TESTIMONY FROM THE STATE ATTORNEYS IS THEY SENT A LETTER TO THE TRIAL COUNSEL, SAYING OUR WITNESS PASSED THE POLYGRAPH REGARDING WHAT OCCURRED DURING THE MURDER, BUT YOU NEED TO REDEPOSE HIM ABOUT WHAT HAPPENED BEFORE AND AFTER, BECAUSE HE NEEDS TO CHANGE HIS TESTIMONY. CLEARLY THAT TELLS DEFENSE COUNSEL WHAT HAPPENED. DEFENSE COUNSEL OBVIOUSLY KNEW T HE RAISED IT ON DIRECT APPEAL AND YOU DECIDED IT AGAINST HIM.

THE EYEWITNESS WAS NOT CALLED, AGAIN, AT THIS POST POST-CONVICTION PROCEEDINGS.

NO, HE WAS NOT.

THERE IS NO INDICATION THAT HE HAS RECANTED HIS TESTIMONY?

NO, HE WAS NOT. NO. NO INDICATION WHATSOEVER.

YOUR TIME IS GETTING LIMITED, ALSO, AND I WOULD LIKE TO ASK YOU, I AM A LITTLE BIT CONCERNED, HERE, ABOUT THIS WHOLE FUNDING ISSUE. AS I UNDERSTAND THE DEFENDANT'S ARGUMENT IS THAT HE NEEDED FUNDS TO BRING WITNESSES TO TO GET WITNESSES AND EXPERTS, IN HIS PRESENTATION, AND THAT NO FUNDS WERE FORTHCOMING.

THROUGH HIS OWN FAULT. THE TRIAL COURT ATTEMPTED TO ASSIST THE DEFENDANT. THE TRIAL COURT CONTACTED JUDGE SHAFER, REFERRED THE MATTER TO JUDGE SHAFER.

AS I UNDERSTAND IN THE RECORD, BOTH PARTIES AGREED THAT THE COUNTY WAS NOT LIABLE FOR THESE EXPENSES, AND SO FROM THERE WHAT HAPPENED?

THEY DISCUSSED IT WITH JUDGE SHAFER, TRIED TO GET FUNDS OUT OF JUDGE SHAFER OR THE FUNDS AT THE TIME SET ASIDE FOR CONFLICT COUNSEL, THEN EVERYBODY REALIZED THAT THEY WEREN'T CONFLICT COUNSEL. AT THAT POINT THERE IS NO ALONG ACE, WHEN THE TRIAL COURT SAYS, HOLD ON, I CAN'T GET FUNDS FROM SHAFER, NOBODY STANDS UP AND SAYS YOU ARE NOT CONFLICT COUNSEL. OH, YES, I AM, JUDGE. THERE WAS A CONFLICT.

THROUGHOUT THIS PROCEEDINGS, THE DEFENDANT HAS BEEN REPRESENTED BY RETAINED COUNSEL?

MY UNDERSTANDING IS, TENT THEY ARE WORKING PRO BONO, BUT THEY WERE RETAINED FOR THE LAST APPEAL AND HAVE SIMPLY STAYED ON THE CASE. NO ONE HAS ASKED CCR TO REPRESENT THIS MAN. THEY CHOSE TO REMAIN ON THE CASE. AND THEN HE SAID, WELL, GO TO CCR. CCR COMES BACK AND SAYS WE HAVE NO MONEY AT THE TIME. WE WILL HAVE FUNDS IN OCTOBER. THE TRIAL COURT SAYS, SO, ARE WE CONTINUING THE CASE? THE DEFENSE SAYS, NO, I WANT TO GO FORWARD TO MY EVIDENTIARY HEARING RIGHT NOW. YOU CAN'T GET BLOOD FROM A STONE. THEY DON'T MANDAMU SCC -- THEY DON'T MANDAMUS CCR BEFORE THIS COURT TO SEE IF CCR HAD MONEY TO PAY. THEY JUST SAID NO. OH, WELL, WE WILL GO FORWARD WITHOUT IT. THAT IS THE DEFENDANT'S FAULT. THE STATE CAN'T FIX THAT FOR HIM, AND THEREFORE ANY LACK OF FUNDING WAS HIS OWN PROBLEM.

TO DETERMINE THAT IN A TRIAL COURT, IN A POST CONVICTION PROCEEDING, WAS THERE A DETERMINATION THAT THE DEFENDANT WAS INDIGENT?

THERE HAVE BEEN DETERMINATIONS. I THINK THERE WAS ONE THAT HE WAS INDIGENT TO COSTS. THE TRIAL COURT WAS LOOKING TO HELP HIM GET COSTS.

IS THERE ANY KIND OF AFFIDAVIT AND OTHER STATEMENTS IN THE RECORD WHICH WOULD SAY THAT THE DEFENDANT HAD NO ASSETS, ET CETERA? ET CETERA? BECAUSE IT SEEMS TO ME THAT, AT SOME POINT, THERE WAS SOME INDICATION THAT DEFENDANT HAD PROPERTY IN FLORIDA AND OTHER THINGS, AND WHAT ALL HAPPENED TO THAT?

IT ALLEGEDLY HAD BEEN SPENT. I DON'T HAVE, IN THE RECORD ON APPEAL, AN AFFIDAVIT OF IN DIGE I THAT I RECALL. I -- OF INDINGENCY THAT I RECALL. I KNOW THAT HE HAS, THEREAFTER, GONE OUT AND RETAINED INDEPENDENT COUNSEL. THE STATE IS NOT CONTENDING THAT HE WASN'T INDIGENT. THE STATE IS SIMPLY CONTENDING THAT HE HAD A REALMTY DID. -- A REMEDY. HE SHOULD HAVE BROUGHT A MANDAMUS AGAINST CCR AND GOTTEN THE FUNDS NEEDED.

WAS THERE ANY QUESTION, AFTER CCR ALLEGEDLY RECEIVED FUNDING, WAS THERE AN ATTEMPT TO GET FUNDS FOR THIS DEFENDANT?

THIS HEARING OCCURRED IN SEPTEMBER, AND THEY SAID THEY WOULDN'T HAVE FUNDS UNTIL OCTOBER, SO THERE WOULD BE NO POINT, BUT THE POINT IS THAT THEY HAD THOSE AVENUES AVAILABLE. THEY ARE, NOW, SAYING, OH, WELL, THERE WAS A CONFLICT, BECAUSE CCR, WE FILED A RELINQUISHMENT ON DIRECT APPEAL, TO FILE A QUORUM NOVIS AND CCR DIDN'T DO IT. CCR IS SUPPOSED TO ONLY REPRESENT PEOPLE ON FINAL APPEAL DEATH CONVICTIONS AND THEREFORE THEY WOULDN'T HAVE BEEN ABLE TO DO IT, AND THEREFORE THEIR POSITION WAS SHOULD HAVE ASKED CCR. I SEE MY TIME IS WANING. THE STATE RESPECTFULLY ASKS THAT YOU AFFIRM.

THANK YOU, KOUBS HE WILL. WE -- COUNSEL. WE APPRECIATE. YOUR TIME HAS EXPIRED. WE APPRECIATE YOUR ASSISTANCE, BOTH OF YOU, IN RESOLUTION OF THIS ISSUE.