Marshall Lee Gore vs State of Florida

Transcription

1 The following is a real-time transcript taken as closed captioning during the oral argument proceedings, and as such, may contain errors. This service is provided solely for the purpose of assisting those with disabilities and should be used for no other purpose. These are not legal documents, and may not be used as legal authority. This transcript is not an official document of the Florida Supreme Court. MR. CHIEF JUSTICE: GOOD MORNING AND WELCOME TO THE FRIDAY ORAL ARGUMENT CALENDAR AT FLORIDA SUPREME COURT. THE FIRST CASE ON THE CALENDAR IS GORE VERSUS STATE. MR. NORRIS. MAY IT PLEASE THE COURT. MY NAME IS WILLIAM NORRIS. I REPRESENT APPELLANT MARSHAL LEE GORE. WE ARE HERE, ON DIRECT APPEAL OF CONVICTION AND THE IMPOSITION OF A DEATH SENTENCE AFTER RETRIAL. THE TRIAL OF THIS CASE WAS ON THE CHARGE OF THE MURDER OF ROBIN NOVACK, BUT THE EVIDENCE, AT TRIAL, WAS DOMINATED BY PROOF OF THE MURDER OF SUSAN ROURKE AND THE ATTEMPTED MURDER OF TINA COROLLIS. AS A RETRIAL, THE DEFENSE ATTORNEY APPEARS TO HAVE ACCEPTED THIS COURT'S RULINGS IN THE FIRST APPEAL, ON THE WILLIAMS RULE ISSUES, ESTABLISHING, ESSENTIALLY, THE LAW OF THE CASE, AND HE WENT BACK AND RETRIED THE CASE. THE STATE PUT A DIFFERENT PROSECUTOR ON THE CASE, AND SHE CAME IN AND, APPARENTLY, DIDN'T FEEL HERSELF STRICTLY LIMITED BY THE COURT'S PRIOR RULINGS, ABOUT THE WILLIAMS RULE EVIDENCE THAT HAD BEEN PUT IN AT THE FIRST TRIAL, AND THERE WERE TWO THINGS ABOUT THIS RETRIAL, WHICH, IN LIGHT OF THE REST OF THE WILLIAMS RULE EVIDENCE, I THINK, CREATE A SUBSTANTIAL ISSUE OF WHETHER OR NOT THE VERDICT WAS REALLY FAIR. THE FIRST OF THESE IS THE REPEAT OF THE ERROR BY THE PROSECUTOR, ABOUT THE INTRODUCTION OF THE STATUTORY RAPE OF JESSE CASANOVA. AND THE SECOND IS THE EXCLUSION OF EVIDENCE THAT THE DEFENSE HAD PROFFERED AND, INDEED, HAD PRESENTED IN THE FIRST TRIAL, REGARDING PAULETTE JOHNSON'S MURDER, WHILE IN PRISON. WAS THAT A STATUTORY RAPE? IT WAS STATUTORY RAPE. SHE WAS 13, AT THE TIME OF THEIR RELATIONSHIP. WAS THIS ASPECT ABOUT THE HINT OF THE RELATIONSHIP UTILIZED IN THE CLOSING? IT WAS NOT. IT WAS OBJECTED TO, AND IT WAS NOT USED IN CLOSING. DIDN'T THE TRIAL JUDGE GIVE A CURATIVE INSTRUCTION, WHEN THE OBJECTION WAS MADE? HE SUSTAINED IT AND GAVE THE CURATIVE INSTRUCTION? SHE TOLD THE JURY TO DISREGARD IT. THAT WAS THE CURETIVE INSTRUCTION, AND, YES, SHE DID. THE PROBLEM WITH THE JESSE CASANOVA EVIDENCE IS, AS THIS COURT SAID, IN ITS PRIOR OPINION, THIS KIND OF EVIDENCE TENDS TO SHOW, ONLY, THAT THE DEFENDANT IS A BAD PERSON AND THAT HE IS PREDISOPPOSED TO COMMIT THIS KIND OF CRIME, AND DURING THIS TRIAL, WHERE YOU ARE SHOWING THAT HE COMMITTED THE MURDER THAT HE WAS CHARGED WITH, BECAUSE HE COMMITTED THE SECOND MURDER AND COMMITTED AN ATTEMPT AT A THIRD MURDER, THAT EVIDENCE HAS A FAR MORE EXPLOSIVE EFFECT THAN MIGHT BE THE SITUATION WHERE THERE SIMPLY IS THE ALLEGATION OF UNCHARGED CRIMINAL CONDUCT. WHAT, EXACTLY, WAS IT THAT WE HAVE IN THIS RECORD, THIS RECORD, ABOUT JESSE CASANOVA? WE HAVE JESSE CASANOVA BEING TRIED AS -- EXCUSE ME -- BEING CALLED AS A WITNESS BY THE STATE, AND SHE WAS PRETRIED BY THE PROSECUTOR, WHO TRIED THE CASE, AND SHE, INSTEAD

2 OF USING THE WORD "DID YOU HAVE SEXUAL RELATIONS WITH THE DEFENDANT, SAID WAS YOUR RELATIONSHIP INTIMATE?" SHE USED THE WORD INTIMATE, AND THE SIDE BAR SHOWS THAT THAT WAS INTENTIONAL. THAT SHE HAD PRETRIED THE WITNESS. AS FAR AS THE JURY IS CONCERNED, THAT IS ALL THEY HEARD, IS THE QUESTION -- YES. -- WAS YOUR RELATIONSHIP INTIMATE. AND THE ANSWER, YES, AND THEN THE TRIAL JUDGE TELLING THE JURY TO DISREGARD THAT. OBJECTION. THE SIDE BAR. THE INDICATION THAT IT WAS USE OF A DWRUF -- OF AN EUPHISM THAT HAD BEEN WORKED OUT WITH THE WITNESS. IN MY EXPERIENCE, IN TRIAL, WHERE SOMETHING COMES OUT THAT YOU DIDN'T INTEND, THAT IS A VIOLATION OF A RULE, HERE YOU HAVE, CLEARLY, THE PROSECUTOR RUNNING, CERTAINLY, TO THE EDGE, AND, I THINK, BEYOND THE LINE OF WHAT SHOULD HAVE BEEN DONE, AND, AGAIN, I SAY THAT THAT PROBLEM, REALLY, STEMS FROM THE WAY THE REST OF THE TRIAL WENT. THE OTHER WILLIAMS RULE EVIDENCE, THE OTHER CRIMINAL ACTIVITY. DIDN'T YOUR CLIENT, WHEN HE TOOK THE STAND, HIMSELF, REFER TO THE NATURE OF HIS RELATIONSHIP WITH JESSE CASANOVA? HE DID, BUT AT THAT POINT THE CAT WAS OUT OF THE BAG. WHAT WE ARE TRYING TO EVALUATE HERE, SINCE THE JUDGE, AS JUSTICE QUINCE POINTED OUT, SUSTAINED THE OBJECTION AND GAVE A CURETIVE INSTRUCTION AS TO WHETHER A MISTRIAL SHOULD HAVE BEEN GRANTED, WITH NO REFERENCE BY THE PROSECUTOR IN CLOSING, AND THE ONLY OTHER REFERENCE IS BROUGHT OUT VOLUNTARILY BY YOUR CLIENT, HOW CAN WE SAY THAT THAT SINGLE REMARK, ALONE, WOULD WARRANT THE GRANTING OF A MISTRIAL? TWO POINTS. FIRST, THAT THAT POINT, THE DEFENDANT WAS TRYING TO PUT THE BEST LIGHT OR BEST SPIN, IF YOU WILL, ON THE SITUATION, AND THE SECOND THING IS THAT, ALTHOUGH THAT WAS THE ONLY REFERENCE TO THE JESSE CASANOVA STATUTORY RAPE, YOU, ALSO, HAD THE DEFENDANT ESSENTIALLY BEING DISARMED, WITH RESPECT TO THE OTHER MURDER OF PAULETTE JOHNSON, WHO HE HAD SAID IN THE FIRST TRIAL WAS ONE OF THE TWO OTHER PEOPLE ASSOCIATED WITH THESE TWO WOMEN, WHO WAS MURDERED IN THE SAME WAY, WHILE HE WAS IN PRISON, AND IT WAS HIS CONTENTION THAT THE SIMILARITY OF THE MURDERS, AND THE FACT THAT HE COULD NOT HAVE KILLED PAULETE JOHNSON, BECAUSE HE WAS IN CUSTODY, RAISED A QUESTION OF WHETHER OR NOT, IN FACT, HE WAS THE MURDERER OF SUSAN ROURKE AND OF ROBIN, THE ONE THAT HE WAS ON TRIAL FOR. NOW YOU ARE SHIFTING, THOUGH, TO A COMPLETELY DIFFERENT ISSUE. YES. WELL. SO LET'S STICK WITH THE -- HELP ME UNDERSTAND WHY, AFTER OBJECTING TO THIS, RECEIVING A JURY INSTRUCTION ABOUT IT AND EVERYTHING, WE WOULD FIND THAT THE DEFENDANT, THEN, HAD A RIGHT TO BRING THIS OUT, HIMSELF, LATER, IN AN ATTEMPT TO DEAL WITH THE ISSUE, AND THAT THAT WOULD BE A PROPER WAY TO DEAL WITH. THAT I AM HAVING DIFFICULTY UNDERSTANDING ANY JUSTIFICATION FOR DOING THAT LATER, BECAUSE, OBVIOUSLY, THE WHOLE EMPHASIS IS TO SAY THAT EVEN THIS REFERENCE TO AN INTIMATE RELATIONSHIP WAS IMPROPER AND YOU GET AN INSTRUCTION TO THE JURY. IN OTHER WORDS EVERYBODY IS DOING EVERYTHING THEY CAN, AT THAT POINT, AT LEAST, WITH THE COURT TAKING THE LEAD, TO CURE ANY PROBLEMS THAT AROSE, AND NOW TO BRING IT UP, AGAIN, THE DEFENDANT, HIMSELF, I AM TRYING TO, VERY HARD, UNDERSTAND HOW YOU COULD JUSTIFY THAT.

3 THE -- WHETHER IT JUSTIFIES IT, I GUESS, IS THE QUESTION, BUT THE REASON FOR IT FLOWS FROM THE FACT THAT THIS DEFENDANT HAD, ALREADY, BEEN CONVICTED, ONCE, OF THIS MURDER, BASED ON THAT KIND OF TESTIMONY, THE TESTIMONY THAT HAD BEEN EXCLUDED BY THE COURT'S ORDER ON WHAT WILLIAMS RULE EVIDENCE COULD COME IN. A PROSECUTOR'S DISREGARD 6 OF THAT RULING, PROCEEDING WITH IT, ANYWAY -- DISREGARD OF THAT RULING, PROCEEDING WITH IT, ANYWAY, AND THE END RESULT A CONVICTION AND A DEATH SENTENCE. THAT WAS OVERTURNED BY THIS COURT AND IT GOES BACK, AND, YES, HE DID RAISE IT, ON HIS OWN TESTIMONY. DO YOU AGREE THAT THIS WITNESS DID HAVE RELEVANT EVIDENCE TO OFFER, TO THE TRIER OF FACT, IN THIS CASE? IN OTHER WORDS, YOU ARE NOT CLAIMING THAT THE SOUL PURPOSE OF PUTTING HER ON THE STAND WAS TO BRING OUT THIS, QUOTE, INTIMATE RELATIONSHIP, ARE YOU. SHE ESTABLISHED. SHE WAS USED TO ESTABLISH THE CONNECTION OF THE KEYS, AND THE FACT THAT THE DEFENDANT GAVE HER THE KEY FROM THE CAMARO THAT HAD BEEN STOLEN FROM THE DECEDENT. I DON'T THINK THAT SHE WAS AN ESSENTIAL WITNESS AND, CERTAINLY, DIDN'T TIE THE DEFENDANT TO THE MURDER, OTHER THAN THE FACT THAT HE HAD HAD CONTROL OF THE CAR AFTER ROBIN NOVAK HAD BEEN KILLED. THAT IS A SIGNIFICANT FACTOR. BUT THERE WAS AMPLE EVIDENCE OF THAT. A NUMBER OF WITNESSES ESTABLISHED THAT. I DON'T THINK -- YOU KNOW, SHE WAS AVAILABLE, AND IT WAS A PAPER-THIN CASE. CALL IT WHATEVER YOU HAVE, FROM THE PROSECUTOR'S POINT OF VIEW, BUT I DON'T KNOW, OTHER THAN SHOWING THAT, AT THE TIME OF THE MURDER THIS GUY WAS SLEEPING WITH A 13-YEAR- OLD GIRL, I DON'T KNOW, REALLY, THAT SHE ADDED THAT MUCH. SO IS THAT YOUR CLAIM? THAT THAT WAS THE ONLY PURPOSE OF CALLING THIS WITES? -- THIS WITNESS? I AM NOT SAYING THAT WAS THE ONLY PURPOSE. WHAT I AM SAYING IS THAT I DON'T THINK THAT SHE WAS A CRITICAL WITNESS WHO ADDED MUCH, BEYOND SHOWING THAT HE WAS A BAD GUY. YOU WOULD AGREE THAT IT IS SUBJECT TO A HARMLESS ERROR ANALYSIS, WOULDN'T YOU? YOU ARE NOT SAYING IT IS FUNDAMENTAL ERROR? IT IS NOT FUNDAMENTAL ERROR, AT ALL. I THINK THAT YOU COULD SAY THAT IT WAS HARMLESS, IN LIGHT OF THIS CASE OR IN LIGHT OF THE EVIDENTIARY POSTURE. TELL ME THE ERROR, WHAT THE ERROR WAS. THE ERROR, IT WAS PROSECUTORIAL ERROR, IN THE INTENTIONAL BRINGING OUT, THE DEVELOPMENT OF AN EUPHEMISM, TO BRING OUT A FACT WHICH THIS COURT HAD SAID HAD ONLY ONE PURPOSE. BUT WHAT ERROR DID THE TRIAL JUDGE COMMIT? WELL, FAILING TO GRANT THE MISTRIAL. AND THAT IS ON ABUSE OF DISCRETION 124. YES.

4 YES. RATHER THAN HARMLESS ERROR ANALYSIS, IT WOULD BE ABUSE OF DISCRETION. ABUSE OF DISCRETION. SO I HAVE IT CLEAR, IN THE PRIOR CASE, THIS CAME OUT ON CROSS-EXAMINATION OF GORE, WHERE IT WAS SIMPLY JUST ASKED ABOUT WHETHER HE HAD HAD SEX WITH A 13-YEAR-OLD GIRL. THE OBJECTION, I DON'T EVEN KNOW IF AN OBJECTION WAS MADE, BUT THERE IS NOTHING - - THAT IS THE CONTEXT, AND THERE WERE MULTIPLE OTHER IMPROPRIETIES IN THAT TRIAL. I AM JUST TRYING TO SEE HOW YOU CAN COMPARE THAT SINGLE REFERENCE TO THE TYPES OF ERRORS THAT OCCURRED IN THE LAST TRIAL THAT SORT OF SAY, WELL, BECAUSE WE SAID, ON THE CROSS-EXAMINATION, OF GORE, ON THIS, MAY HAVE BEEN USED SOLELY TO IMPUGN HIS CHARACTER, THAT ASKING A WITNESS WHO IS BEING CALLED, ABOUT THE NATURE OF THEIR RELATIONSHIP, AMOUNTS TO PROSECUTORIAL MISCONDUCT. OKAY. THERE ARE SEVERAL POINTS. FIRST OFF, THIS IS NOT A TRIAL IN A VACUUM. THIS IS A TRIAL AGAINST A PROCEDURAL HISTORY, AND THE PROSECUTOR SHOULD HAVE BEEN ON NOTICE TO STAY COMPLETELY AWAY FROM THAT. SECONDLY, ALTHOUGH THERE WASN'T THE REPEAT IN THE GUILT PHASE OF THE OTHER ALLEGATIONS ABOUT THE OTHER WOMEN, THAT DIDN'T COME UP UNTIL THE PENALTY PHASE. THERE WAS THE REMOVAL, FROM THE DEFENDANT, OF WHAT WAS A PROOF OF THE ESSENTIAL OF THE REASON WHY HE, IN FACT, WASN'T RESPONSIBLE FOR THE MURDER AND WASN'T RESPONSIBLE FOR THE ATTEMPTED MURDER THAT WAS COMING IN AS WILLIAMS RULE EVIDENCE. YOU ARE TALKING ABOUT THE REVERSE WILLIAMS RULE. YES. AND THAT IS THE PAULETTE JOHNSON MATTER, AND -- THAT WAS RAISED ON THE PREVIOUS APPEAL? IT WAS -- IT WASN'T RAISED IN THE PREVIOUS APPEAL. THERE WAS NOTHING IN THE OPINION THAT ADDRESSED THAT. IT WAS PART OF THE TESTIMONY THAT THE DEFENDANT PRESENTED, IN THE PRIOR TRIAL. AND THE STATE CAME BACK, IN THE RETRIAL, AND MOVED IN LIMINE, PRETRIAL, TO EXCLUDE THAT, AND IT WAS EXCLUDED, AND THAT IS AN ERROR OF PART OF THE MIX. IN OTHER WORDS, IF YOU ARE GOING TO LET IN MOST OF OF THE WILLIAMS RULE STUFF, AND YOU ARE ONLY GOING TO -- YOU ARE NOT GOING TO GRANT THE MISTRIAL FOR THE VIOLATION OF IT, AT LEAST THE DEFENDANT OUGHT TO HAVE THE OPPORTUNITY TO PRESENT HIS REVERSE WILLIAMS RULE EVIDENCE OR AT LEAST TO DEVELOP IT BEYOND WHAT HE HAD IN THE FIRST TRIAL, AND HE WASN'T GIVEN THAT EVIDENCE. OR THAT OPPORTUNITY TO DEVELOP THAT EVIDENCE. COUNSEL, YOU KEEP MENTIONING ABOUT THE INTENTIONAL DOING OF THIS BY THE PROSECUTOR. SHOULD WE ADORE TAKE AWAY TO THIS, BECAUSE OF THE INTENTIONAL ASPECT OF IT, OR ARE WE TO ADD TO THE QUALITY OF THE ERROR, ALLEGED ERROR, BECAUSE OF THAT, OR ARE WE TO LOOK AT IT IN THE CONTEXT OF THE TRIAL, WHETHER, REGARDLESS OF WHETHER IT WAS INTENDED OR UNINTENDED? I THINK YOU HAVE TO LOOK TO IT AS AFFECTING THE QUALITY OF WHAT HAPPENED. THE -- I RAISED, IN MY BRIEF, THE QUESTION OF DOUBLE JEOPARDY CONSIDERATIONS, WHERE THERE HAS BEEN A REVERSAL ON SOMETHING OTHER THAN THE SUFFICIENCY OF THE EVIDENCE, AND THAT IS AVAILABLE AS A SANCTION. IT MAY NOT BE THE APPROPRIATE SANCTION HERE, BUT SOMETHING MORE THAN SIMPLY SAYING, WELL, YOU SHOULDN'T DO THIS, AND YOU DID IT, AGAIN, ANYWAY, BUT WE WILL LOOK AT IT, AND WE WILL CALL IT HARMLESS ERROR. WE WILL CALL IT NOT AN ABUSE OF DISCRETION. THE JUDGE DID THE BEST THAT HE OR SHE COULD DO UNDER THE CIRCUMSTANCE. THE FACT IS THAT YOU HAVE GOT A PROSECUTOR OUT THERE WHO, BASICALLY, IS TAKING THE BULL BY THE HORNS AND IS TRYING TO WORK OUT AN EUPHEMISM,

5 TO GET AROUND SOMETHING THAT THIS COURT HAS CLEARLY SAID WAS ERROR. BUT WHAT I AM TRYING TO GUESS IS THE JUDGE SUSTAINED THE OBJECTION, GAVE AN INSTRUCTION TO THE JURY, AND I AM JUST SORT OF TRYING TO FIGURE OUT HOW WE SHOULD LOOK AT THAT, WHAT THE JUDGE DID, IN CONNECTION WITH THE INTENTIONALITY OF THE ERROR THAT IS ALLEGED. WHAT COULD THE JUDGE DO DIFFERENTLY, IF THE -- IF IT WAS INADVERTENT? IF IT IS INADVERTENT, YOU ACCEPT THE FACT THAT PEOPLE DO ER -- DO ERR, AND ACCEPT THE FACT THAT IT WAS INTENTIONAL. AND SUSTAINED THE OBJECTION AND GIVE THE CHARGE TO THE JURY. BUT THAT GOES BACK TO WHETHER THE MISTRIAL SHOULD HAVE BEEN GRANTED. THE PAULETTE JOHNSON THING, THE RECORD IS NOT FULLY DEVELOPED, AS FAR AS WHAT THE TESTIMONY MIGHT HAVE BEEN AT RETRIAL, BECAUSE HE WASN'T ALLOWED TO GO INTO IT. BUT -- BUT ISN'T THAT A PROBLEM WITH THE LACK OF AN ADEQUATE PROFFER? HOW CAN WE EVALUATE WHETHER THIS IS PROPERLY REVERSE WILLIAMS RULE, UNLESS WE KNOW THAT THERE IS ENOUGH IN THE RECORD TO KNOW IF THERE WAS SUBSTANTIAL SIMILARITY BETWEEN THIS MURDER, ASSUMING THIS MURDER EVEN OCCURRED? I THINK THE STATE SEEMS TO QUESTION WHETHER THIS IS A MURDER IN TENNESSEE, WHETHER IT EVEN OCCURRED, BUT ASSUMING IT IS, ISN'T IT THE RESPONSIBILITY OF THE DEFENDANT TO HAVE THAT PUT IN THE RECORD, FOR US TO BE ABLE TO REVIEW? AT FIRST BLUSH, YES, AND AS I SAY, THERE WAS TESTIMONY ABOUT THIS IN THE FIRST TRIAL. FROM THE DEFENDANT? FROM THE DEFENDANT. AND IT WAS THE SUBJECT OF A PRETRIAL ATTEMPT TO SPIKE THAT, YOUNG, BY THE PROSECUTOR. HOW IS THE ATTEMPT -- IF THE PERSON WAS IN JAIL WHEN HE WAS KILLED, SO IF ANYTHING WOULD BE HEARSAY, HE ISN'T THE PERSON THAT WOULD BE THE PERSON TO ESTABLISH THE REVERSE WILLIAMS RULE EVIDENCE, WOULD HE? YEAH. BUT WHAT HE DID IS HE ESTABLISHED THAT HE HAD SUBPOENAED THIS PERSON TO COME TO HIS TRIAL, AND THAT, WHILE SHE WAS UNDER SUBPOENA TO COME TO HIS FIRST TRIAL, SHE HAD BEEN MURDERED, AND HE HAD PROOF OF THAT THROUGH A NEWSPAPER, WHICH, OBVIOUSLY, IS HEARSAY, BUT THAT IS WHERE I AM SAYING, IN TERMS OF THE DEFENSE EFFORTS TO PROCEED WITH IT, IT WAS DROPPED, BUT IT WAS DROPPED BECAUSE THE JUDGE SAID YOU CAN'T GO INTO THIS, AND IT WAS SAID YOU CAN'T GO INTO IT FOR REASONS THAT ARE NOT ENTIRELY CLEAR TO ME. THE QUESTION SEEMS TO BE SOMETHING ABOUT THE DEGREE OF SIMILARITY, IF YOU ARE GOING TO BE SAYING, WELL, SOMEBODY ELSE DID IT, AND HE IS NOT SAYING, THE THRUST OF THAT EVIDENCE WAS NOT THIS PARTICULAR OTHER PERSON COMMITTED THE CRIME. IT IS JUST I COULDN'T, BECAUSE HERE IS A THIRD MURDER OF THREE PEOPLE IN A GROUP, WHO ARE ASSOCIATED WITH ME, AND I COULDN'T HAVE COMMITTED THAT MURDER, BECAUSE I WAS IN JAIL AND SHE IS DEAD. I THOUGHT THERE WERE SOME OTHER PROBLEMS, EVEN ASSOCIATING THE PERSON IN TENNESSEE WITH THE PERSON THAT WAS IN THIS ESCORT SERVICE. IN OTHER WORDS, THERE APPEARED TO BE SOME GAPS IN PROOF, IN ORDER TO -- THE JUDGE TO HAVE FOUND THAT IT HAD SUFFICIENT RELIABILITY TO ALLOW IT IS INTO EVIDENCE. THAT GAP IN PROOF MAY COME, MORE, FROM THE RECORD, IN THAT THE OTHER, THE FIRST MURDER THAT HE WAS CONVICTED OF WAS A TENNESSEE --

6 HOW -- WERE YOU THE TRIAL COUNSEL? NO. DO WE KNOW HOW MR. GORE OR HIS ATTORNEY WAS PREPARED TO PUT THIS EVIDENCE BEFORE THE JURY? WAS IT GOING TO COME IN, AGAIN, THROUGH MR. GORE, OR WAS THERE PEOPLE IN TENNESSEE THAT WERE PREPARED, INVESTIGATING OFFICERS THAT WERE PREPARED TO TESTIFY TO THIS MURDER, AND SOMEBODY ELSE TO LINK UP THIS PERSON WITH MR. GORE? WE KNOW THAT THERE WAS INVESTIGATIVE ACTIVITY FOR THE DEFENSE GOING ON IN TENNESSEE, BECAUSE SOME SIGNIFICANT WITNESSES WERE CALLED FROM TENNESSEE, ABOUT THE FIRST MURDER. THERE WAS NO INDICATION, IN THE RECORD, THAT THERE WERE WITNESSES WHO WERE GOING TO COME IN, FROM TENNESSEE, AND SAY THIS PERSON WHO WAS MURDERED IN TENNESSEE WITH THE SAME NAME WAS THE SAME PERSON AS ASSOCIATED WITH GORE IN MIAMI. BUT THAT IS NOT A VERY -- ALL OF THIS, REALLY, THOUGH, IS JUST SPECULATION, ABOUT WHAT IS OUT THERE FOR YOU TO SPECULATE FROM. THE TRIAL COURT DIDN'T PROHIBIT ANYBODY FROM MAKING A PROFFER OR DOING ANYTHING LIKE THAT. IS THAT NOT CORRECT? SHE DIDN'T PROHIBIT, BUT THE POINT IS THAT SHE SAID, NO, AS TO REVERSE WILLIAMS RULE, BASED ON A LEVEL OF PROOF THAT HAD BEEN SUFFICIENT, IN THE FIRST TRIAL. THE BAR WAS RAISED, ESSENTIALLY, FOR HIM IN THE RETRIAL, BASED ON THE STATE'S MOTION, AND HE CAME FORWARD WITH THE SAME PROFFER, THE SAME PROOF, SUBJECT TO -- THAT HAD BEEN SUBJECT TO CROSS-EXAMINE IN THE FIRST TRIAL, AND THE JUDGE WHO WAS HANDLING THE TREMENDOUS TRIAL SAID, NO, THAT IS NOT GOOD ENOUGH, AND BEYOND THAT, IN TERMS OF WHAT ELSE COULD HAVE BEEN DEVELOPED, YES, IT IS SPECULATION. BUT AS TO THAT THRESHOLD MATTER OF WHETHER IT WAS SUFFICIENT EVIDENCE, YOU KNOW, IT WAS RELEVANT, AND AUTHENTIC EVIDENCE IN THE FIRST TRIAL, WHY ISN'T THAT GOOD ENOUGH? I -- IN MY OPENING COMMENTS, I SAID THE DEFENSE LAWYER WENT BACK AND BASICALLY TRIED THE SAME CASE. BUT THE TERRAIN WAS CHANGED ON HIM, AND THAT IS THE OBJECTION, IS THE CHANGE OF THE TERRAIN. WHETHER OR NOT, IN THE FIRST INSTANCE, THAT MIGHT HAVE BEEN AN APPROPRIATE LEVEL FOR THE BAR, THAT IS A DIFFERENT QUESTION. THE FACT IS THAT THE LEVEL OF THE BAR WAS CHANGED, AND HE WASN'T ABLE TO PUT ON HIS PROOF OF HIS DEFENSE. THAT IS THE OBJECTION. YOU ARE IN YOUR REBULINGS. OKAY. IN -- YOU ARE IN YOUR REBULINGS. OKAY. IN THIS CASE THERE HAD BEEN A PRETRIAL MOTION IN LIMINE TO KEEP THIS OUT. ISN'T THAT CORRECT IN THE ORIGINAL ONE? THAT'S CORRECT. BUT IN THE ORIGINAL TRIAL, THE STATE HAD NOT DONE THAT, CORRECT? THAT'S CORRECT. IS THERE ANYTHING IMPROPER, IN THE STATE FILING ITS MOTION IN LIMINE? NO, BUT WHAT I AM SAYING, IS IF YOU ARE NOT GOING TO CRITICIZE THE DEFENSE FOR REACHING A HIGHER STANDARD, THE POINT IS, IF IT WAS GOOD ENOUGH LAST TIME, WHY WASN'T IT GOOD ENOUGH THIS TIME? THE QUESTIONS ABOUT THE DEATH PENALTY, VERY BRIEFLY, THERE WAS NO DEFENSE PUT ON, AND I KNOW THAT INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS ON DIRECT APPEAL ARE DISFAVORED, BUT HERE THE RECORD IS ABSOLUTELY CLEAR THAT THIS LAWYER

7 WHO WAS HANDLING THE PENALTY PHASE, REALLY, DROPPED THE BALL. DID GORE TAKE OVER HIS OWN PENALTY PHASE? HE DID, BUT THE RECORD IS CLEAR THAT WHAT HE SAID IS I DON'T WANT TO DO IT. I AM NOT QUALIFIED TO DO IT. I CAN'T DO THIS. BUT I CAN'T DO ANY WORSE THAN THIS GUY IS DOING, AND MY -- PARTICULARLY MY REBUTTAL, MY REPLY BRIEF, YOU KNOW, IN A PAGE AND-A-HALF, I HAVE TRIED TO HIGHLIGHT THE CLEAR PROOF THAT THIS IS NOT -- YOU DON'T HAVE A LAWYER HERE. BUT HOW DO YOU DEAL WITH THAT? IT APPEARS THAT THERE IS, AT LEAST IF NOT DIRECT, BUT AN INFERENCE THAT NONPARTICIPATION WITH MENTAL HEALTH EXPERTS, FAMILY NOT WANTING TO GET INVOLVED. HOW DO YOU ADDRESS THOSE? THAT NONPARTICIPATION FROM MENTAL HEALTH EXPERTS AROSE FROM DR. MARY HABER, AND I AM SURE HER NAME COMES BEFORE THIS COURT A LOT. SHE G SHE KNOWS HER JOB. WHAT HAPPENED, HERE, WAS THIS MAN HAS, GORE, THE DEFENDANT, HAS DEALT WITH MENTAL HEALTH PROFESSIONALS MANY TIMES, IN MANY JURISDICTIONS, IN MANY COURTS, AND HAS BEEN BEFORE THIS COURT WITH THE SAME STUFF. HE DID DOES PARTICIPATE. HE DIDN'T WITH MARY HABER. THERE WAS A BREAKDOWN IN COMMUNICATION, AND THAT BREAKDOWN CAME FROM THE FACT THAT HE DIDN'T HAVE A DEFENSE LAWYER WHO WAS DOING HIS JOB, AND WHEN THAT BROKE DOWN, HE DIDN'T SAY, JUDGE, GIVE US ANOTHER WEEK, SO WE CAN GET SOMEBODY ELSE IN. HE SAID WE ARE NOT GOING TO CALL ANYBODY. THAT IS BASICALLY THE POINT. I THANK YOU. THANK YOU, MR. NORRIS. MAY IT PLEASE THE COURT. SANDRA JAGGARD, ASSISTANT ATTORNEY GENERAL, ON BEHALF OF THE STATE. AS THE LAST POINT, IS IT THE STATE'S POSITION THAT, REALLY, WE DON'T, IN MOST CASES, REVIEW AN INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM ON DIRECT APPEAL, BUT IN THIS CASE, THAT THERE IS A KNOWING AND VOLUNTARY WAIVER OF REPRESENTATION DURING THE PENALTY PHASE, DO WE REACH -- IN OTHER WORDS IF WE REACH AND DECIDE THE ISSUE, AS TO WHETHER HE DID NOT HAVE COUNSEL, AND IT WAS A VOLUNTARY WAIVER IN THE PENALTY PHASE, DOESN'T THAT DISPOSE OF THE INEFFECTIVE ASSISTANCE CLAIM? WITH REGARD TO THE FERRET AN ISSUE, WHAT -- OCCURRED, HERE, IS YOU HAVE A DEFENDANT WHO IS CONTINUING WITH THE FOURTH AND FIFTH LAWYERS. HE REFUSES TO COOPERATE. THE PEOPLE WERE TRYING TO WORK ON HIS BEHALF, AND WHEN HE COMPLAINS THAT I DON'T HAVE A LAWYER HERE, THE LAWYER EXPLAINS ON THE RECORD, PURSUANT TO A NELSON INQUIRY, THAT I HAVE TRIED TO HAVE HIM EXAMINED. THAT HE IS UNWILLING TO BE EXAMINED. WHEN DR. HABER WENT TO SEE HIM THE FIRST TIME, HE REFUSED TO MEET WITH HER BECAUSE SHE DIDN'T HAVE AN APPOINTMENT. THE LAWYER SENT AN INVESTIGATOR OVER AND EXPLAINED EVEN THOUGH THE DEFENDANT WAS IN COURT AND HAD AN APPOINTMENT AND KNEW WHY SHE WAS COMING, HE SENT HER OVER THERE AGAIN AND HE, STILL, REFUSES TO MEET WITH HER. IS THE STATE OF THE RECORD SUCH THAT IT IS CLEAR THAT, DURING THE PENALTY PHASE, HE DID NOT HAVE COUNSEL REPRESENTING HIM, AND THAT THERE IS -- THE STATE'S POSITION IS IT WOULD BE INADEQUATE FERRET AN INQUIRY -- FERETTA INQUIRY AND A KNOWING AND VOLUNTARY WAIVER OF -- ABSOLUTELY THERE WAS A KNOWING AND ADEQUATE FERRETTA INJURY, AND THEN THE DEFENDANT CHOSE TO REPRESENT HIMSELF. THERE HAD BEEN A NUMBER OF FERRETTA INQUIRIES IN THIS RECORD, AND IN SPEAKING TO MR. GORE, AGAIN, SHE ALLOWED HIM TO REPRESENT HIMSELF AGAIN, SO AS FAR AS THAT IS CONCERNED, THERE WAS A FERETTA INQUIRY,

8 AND THAT ISSUE SHOULD BE AFFIRMED. WITH REGARD TO MISS CASANOVA AND JUSTICE ANSTEAD'S QUESTION, REGARDING THE PURPOSE OF CALLING HER, MISS CASANOVA PLACES THE DEFENDANT WITH THE VICTIM'S CAR AT FOUR O'CLOCK IN THE MORNING, A COUPLE HUNDRED FEET FROM WHERE THE BODY IS DISCOVERED. SHE, ALSO, PLACES HIM IN CONNECTION WITH MS. ROURKE AND HER CAR KEYS, AFTER SHE WAS KILLED. SHE, ALSO, PLACES MR. GORE IN POSSESSION OF MS. ROURKE'S PROPERTY, BECAUSE HE IS GIVING THAT PROPERTY TO HER, AFTER SHE KILLED. SO IT SHOWS SHE WASN'T JUST CALLED BECAUSE OF HER RELATIONSHIP WITH THE DEFENDANT. SHE WAS CALLED FOR OTHER REASONS THAT ARE RELEVANT. THERE ARE NO OBJECTIONS ABOUT HER TESTIMONY LACKING RELEVANCE OR MATERIALIALITY. NO. NO. NO. TO THE ISSUES IN THE CASE, DURING THE COURSE, IS THAT CORRECT? CORRECT. DID SHE TESTIFY IN THE LAST TRIAL? YES, SHE DID. IN THE LAST TRIAL, THOUGH, DID THE REFERENCE TO THE RELATIONSHIP THEY HAD, DID THAT COME OUT IN HER DIRECT EXAMINATION? I BELIEVE IT COMES UP IN HIS CROSS-EXAMINATION. SO UNDERSTANDING THAT THE COURT WAS -- ONE OF THE REASONS THE COURT REVERSED, REALIZING YOU WERE NOT THE PROSECUTOR, WHAT POSSIBLE REASON DID -- ON DIRECT EXAMINATION, WOULD THE PROSECUTOR HAVE, TO BRING OUT THIS -- SEVERAL REASONS. NUMBER ONE, HE IS BUSY GIVING HER PRESENTS, JEWELRY FROM THE OTHER VICTIMS, AND SO TO EXPLAIN WHY. IN OTHER WORDS, YOU ARE PUTTING ON A FRIENDLY -- I UNDERSTAND SHE IS SOMEWHAT FRIENDLY. KEEP IN MIND SHE COMES BACK AND TESTIFIES AS A DEFENSE WITNESS IN THE PENALTY PHASE, SO SHE IS NOT ENTIRELY FRIENDLY TO US, AND TO EXPLAIN, TO SOME EXTENT, WHY SHE IS COLORING HER TESTIMONY, AS BEST SHE CAN, IN FAVOR OF THE DEFENSE, IT IS, ALSO, NECESSARY TO EXPLAIN THAT, BUT HE IS GIVING HER PRESENTS, AND YOU NEED TO UNDERSTAND WHY SHE IS GETTING THESE PRESENTS FROM THE OTHER VICTIMS, AS WELL, AND BEYOND THAT, AS SOON AS IT IS MENTIONED, THE TRIAL COURT SUSTAINS THE OBJECTION AND GIVES A CURETIVE INSTRUCTION, AND THE STATE NEVER MENTIONS IT AGAIN. IT IS THE DEFENDANT WHO REPEATEDLY BRINGS IT UP, AND THAT IS JUST NOT A REASON TO GRANT A MISTRIAL. THE DEFENDANT BRINGS IT UP, BY THE WAY. IT IS NOT, REALLY, HIS LAWYER. NO. IT IS HIM, PERSONALLY. IT IS THE DEFENDANT, HIMSELF, THAT DISCLOSES. IS THAT CORRECT? ABSOLUTELY. HIMSELF. HE CHOOSES TO PUT THIS BEFORE THE JURY, EVEN THOUGH HE IS NOT BEING ASKED ABOUT IT. WITH REGARD TO MS. JOHNSON, WHEN THIS FIRST COMES UP, WHAT HAPPENS IS THE STATE MOVES IN LIMINE TO EXCLUDE, IT AND THE DEFENSE, BASICALLY, CONCEDES. WE CAN'T SHOW IT SIMILAR. WE WOULD ASK YOUR HONOR TO WAIT AND LET US SEE

9 IF WE CAN SHOW IT SIMILAR, AND THE TRIAL COURT SAYS, WELL, I AM GOING TO GRANT THE STATE'S OBJECTION, BUT IF YOU CAN SHOW ME IT IS SIMILAR LATER, I WILL REVISIT, AND THEY NEVER GO BACK AND EVER SHOW IT IS SIMILAR, AND WE DON'T KNOW HOW SHE WAS KILLED. WE DON'T REALLY KNOW THIS PERSON'S NAME, BECAUSE SHE IS REFERRED TO AS PAULETTE, --, AS PAULI P NA, AND AS PAULA, IN TESTIMONY. DOES THIS STATE SHOW IT IS SIMILAR? NO. IT JUST MAKES AN ASSERTION THAT THIS THESE CRIMES ARE DISSIMILAR? THE STATE ASSERTS THAT IT HAS SHOWN THAT IT IS SUFFICIENTLY SIMILAR. WHAT HAPPENED AT THE FIRST TRIAL, BECAUSE IT IS NOT LIKE THIS ISSUE, THE STATE WAS AWARE THAT THIS WAS GOING TO BE AN ISSUE. IT JUST SUDDENLY GETS BLURTED OUT DURING THE DEFENSE CASE, WHICH IS WHY YOU DON'T HAVE A MOTION IN LIMINE AT THE FIRST TRIAL. THE STATE WAS JUST BECOMING AWARE THAT THIS WAS GOING TO COME UP IN THE DEFENSE CASE. ANOTHER STATE WAS RELYING ON WHAT THE REFERENCES WERE, BEFORE, IN TERMS OF MAKING THE MOTION IN LIMINE. YES. SO WE DIDN'T KNOW WHO THIS PERSON IS THE. WE DON'T KNOW HOW SHE WAS KILLED, AND WHILE MY PONENT SAYS, WELL, I AM NOT USING IT TO SHOW ANY PARTICULAR PERSON COMMITTED THE CRIME, HE IS, WHILE NOT NAMING A PERSON, HE IS CERTAINLY SAYING THAT, BECAUSE THIS PERSON WAS KILLED, SOMEBODY KILLED HER AND KILLED THE OTHER TWO MURDER VICTIMS, AND SO IT IS REVERSE WILLIAMS RULE EVIDENCE. THERE WAS NO SHOWING OF SIMILARITY, AND THEREFORE THE TRIAL COURT PROPERLY EXCLUDED IT. MY OPPONENT, ALSO, TOUCHED ON THE STATE DISCUSSING THE OTHER PEOPLE THE DEFENDANT HAD ATTACKED DURING THE PENALTY PHASE, AND THE WAY THAT COMES UP, THE DEFENDANT COMES UP AND SAYS HE IS A NONVIOLENT PERSON, AND THE DEFENDANT IS NOT A NONVIOLENT PERSON. HE HAS ATTACKED NUMEROUS PEOPLE. THE STATE HAD CHARGED HIM WITH THESE CRIMES, AND THEN AFTER HE GOT HIS SECOND DEATH SENTENCE, NOLLE PROSSED THEM. THE STATE HAD THE VICTIM IN QUESTION THERE, READY, WILLING AND ABLE TO TESTIFY. SHE HAD BEEN THERE DURING THE PENALTY PHASE, WHEN THE DEFENDANT HAD SAID HE WAS DOING SOMETHING ELSE, AT THE TIME HE WAS COMMITTING THE CRIME AGAINST THIS VICTIM, AND THE STATE HAD ATTEMPTED TO PUT HER IN, AND THE TRIAL COURT HAD EXCLUDED HER, FINDING IT WAS PROPER REBUTTAL BUT UNDULY PREJUDICIAL, AND THE STATE WAS READY, WILLING AND ABLE TO PUT HER IN, AGAIN, AT THE PENALTY PHASE, AND THE TRIAL COURT, AGAIN, FOUND THAT IT WAS PROPER REBUTTAL BUT UNDULY PREJUDICIAL AND THEREFORE EXCLUDED HER, AND SO THE STATE'S POSITION IS THAT, BY CONTENDING HE WAS NONVIOLENT, HE OPENED THE DOOR TO THIS. UNLESS THE COURT HAS ANY FURTHER QUESTIONS, THE STATE WOULD RESPECTFULLY REQUEST TO AFFIRM. REBUTTAL. I WOULD LIKE TO ADDRESS THE FERETTA ISSUE. IT IS VERY CLEAR THAT THIS WAS NOT A KNOWING AND INTENTIONAL WAIVER OF A CONSTITUTIONAL RIGHT. THE STATEMENT THAT THE DEFENDANT HAD HAD FOUR OR FIVE LAWYERS IS STATISTICALLY ACCURATE, BUT MISLEADS, BECAUSE THE -- BOTH TRIAL COUNSEL, THE GUILT PHASE ATTORNEY AND THE PENALTY-PHASE ATTORNEY, HAD BEEN GORE'S LAWYERS IN THE FIRST TRIAL, SO THERE IS, REALLY, QUITE A BIT OF CONTINUITY, IN TERMS OF HIS REPRESENTATION. THE DISCONTINUITY OF HIS REPRESENTATION OCCURRED IN THE PRELIMINARY PHASES, WHEN THE STATE WAS INVOLVED IN THE PROCESS OF TRYING GORE FOR CRIMES IN OTHER JURISDICTIONS. HOW ABOUT JUST TELLING US WHAT HAPPENED. IN OTHER WORDS HOW IS IT THAT GORE CAME TO REPRESENT HIMSELF DURING THE COURSE OF THE PENALTY PHASE. WHAT WAS THE

10 INITIALIATEING INCIDENT THERE AND THEN WHAT HAPPENED AFTER THAT? THE PENALTY-PHASE LAWYER, THROUGHOUT THE TRIAL -- HE WAS PRESENT DURING THE GUILT PHASE, AND THROUGHOUT THE GUILT PHASE, HE WAS DOING THINGS WHICH WERE QUIXOTIC. HE SAW THE DEFENDANT IN HANDCUFFS. REPORTED THAT TO THE COURT. THE JUDGE MADE IT CLEAR HE DIDN'T WANT A MISTRIAL. HE -- THE MOST SERIOUS THING IS HE FILED A MEMORANDUM WITH THE COURT, WHICH APPARENTLY WAS UNDER SEAL. IT WASN'T IN THE RECORD THAT I SAW. I ACCEPT THE CORRECTION THAT IT WAS IN THE RECORD UNDER SEAL, HE FILED A PLEADING WITH THE COURT, THAT THE JUDGE -- THE DEFENDANT SAID I DIDN'T GET A COPY OF THAT. I WOULD LIKE TO SEE IT. AND THE JUDGE SAID THAT IS PRIVILEGE. HE SAID IT IS WORK PRODUCT. MY CLIENT IS ENTITLED TO. THAT THEY ARE TALKING ABOUT THE QUALIFYING PHASE, AND THE JUDGE SAYS, WELL, I HAVE TALKED TO HIS -- AND THE ATTORNEY SAYS I HAVE TALKED TO HIS SISTER, WHO WAS THE WITNESS, AND I HAVE DECIDED NOT CALL HER, AND HE DOESN'T KNOW HER NAME. I ALLUDED, VERY BRIEFLY, TO THE THING ABOUT MARY HABER, AND THERE WERE, AND IT SHOWS UP IN THE RECORD THERE WERE A NUMBER OF PSYCHIATRIC OR PSYCHOLOGICAL PROFESSIONALS WHO HAVE INTERACTED WITH MARSHAL GORE OVER THE YEARS. BUT WHAT I AM ASKING IS WHAT THE RECORD TELLS US ABOUT HOW THIS CAME -- IN OTHER WORDS WHAT THE DEFENDANT SAID TO THE TRIAL COURT ABOUT HIS LAWYER AND ABOUT WANTING TO TAKE OVER, HIMSELF, FOR THE PENALTY. WHAT ACTUALLY OCCURRED ON THE RECORD, HERE, AS OPPOSED TO SORT OF A TRYING TO ADEPT TO EVALUATE, NOW, THE CONDUCT OF THE LAWYER, WHICH MAY OR MAY NOT BE AN ISSUE, YOU KNOW, IN POSTCONVICTION PROCEEDINGS, BUT WHAT ACTUALLY OCCURRED ON THIS RECORD, AS FAR AS GORE EXPRESSING HIS DISSATISFACTION WITH COUNSEL AND HIS INTENT TO TAKE OVER AND REPRESENT HIMSELF, DURING THE PENALTY PHASE. WHAT DID THE TRIAL COURT SEE? EACH OF THE THING THAT IS I HAD MENTIONED ARE IN THE RECORD. AS FAR AS WHAT TRIGGERED THE DEFENDANT'S REQUEST TO THE COURT, AND IT WAS REPEATED SEVERAL TIMES, IN TERMS OF I CAN'T DO IT. I AM NOT QUALIFIED, BUT I CAN'T BE ANY WORSE THAN HIM. TO BASICALLY SHOW UP, IN THE 2700-PAGE-SERIES OF THE RECORD, AROUND 2750, WHAT HAPPENED THERE, WHAT IT WAS THAT TRIGGERED IT WAS THE PENALTY-PHASE COUNSEL'S ANNOUNCEMENT THAT HE WASN'T GOING TO CALL ANY WITNESSES. JUST GOING TO CALL GORE. I GET THE IMPRESSION THAT GORE CHANGED HIS MIND SEVERAL TIMES, BACK AND FORTH. THAT HE WANTED TO REPRESENT HIMSELF. THAT HE DID NOT WANT TO REPRESENT HIMSELF. YES. HE WANTED TO STANDBY COUNSEL. NO, HE WANTED TO REPRESENT HIMSELF, AND THE COURT TRIED TO ACCOMMODATE HIM IN EACH INSTANCE. DO I HAVE A MISCONCEPTION OF WHAT WAS HAPPENING AT THE TRIAL? IT SEEMS THAT THE COURT, SEVERAL TIMES, SAID, ALL RIGHT, I WILL GIVE YOU COUNSEL. THEN HE SAID HE WANTED TO REPRESENT HIMSELF. THE COURT SAID ALL RIGHT. I AM GOING TO ACCOMMODATE YOU THERE. AND THEN HE SWITCHED BACK AND SAID I THINK I AM UNABLE TO REPRESENT MYSELF, SO I THINK I WOULD LIKE TO HAVE COUNSEL AGAIN. DO I HAVE A WRONG PICTURE OF WHAT HAPPENED? IT -- YOUR PICTURE OF WHAT HAPPENED, IN TERMS OF THE FACT THAT GORE WAS DISSATISFIED WITH HIS LAWYERS, THROUGHOUT THE TRIAL, IS ABSOLUTELY CORRECT. WHETHER OR NOT -- HE WENT BACK AND FORTH. HE RECOGNIZED THAT HE COULDN'T DO IT, AND I THINK THAT THIS COURT HAS RECOGNIZED THAT, IN, PARTICULARLY, THE PENALTY PHASE OF A DEATH CASE, YOU NEED SOMETHING, EVEN JUST TYPICAL LAWYER CAN'T HANDLE IT. YOU NEED THE LAWYER WITH SOME SPECIALIZED EXPERIENCE, BEFORE YOU CAN, REALLY, GET INVOLVED IN THAT AND DEVELOP A RECORD THAT FACILITATES MEANINGFUL REVIEW BY THIS COURT AND FULFILLMENT OF THE STATUTORY OBLIGATION. GORE, REALLY, COULDN'T DO. THAT YOU, REALLY, HAVE A BASIC FUNDAMENTAL CONFLICT BETWEEN FERETTA AND THIS COURT'S OPINION, IN HILL, WHEN YOU ARE TALKING ABOUT WHAT NEEDS TO HAPPEN, BELOW, FOR THIS COURT TO DO ITS JOB.

11 WHAT CAN A COURT DO, WHEN YOU HAVE A DEFENDANT WHO HAS, OBVIOUSLY, BEEN THROUGH THIS BEFORE, AND HE KNOWS HIS WAY AROUND THE COURTS, AND HE SAYS HE FEELS THAT HE IS NOT GOING PROPER REPRESENTATION, AND HE SAYS I WANT TO TAKE OVER, AND THEN HE CHANGES HIS MIND AND SAYS, WELL, I AM NOT QUALIFIED. I SEE NOW I AM IN TROUBLE. I WANT THE LAWYER TO REPRESENT ME. WHAT IS THE COURT TO DO, IN THIS INSTANCE? WELL, IN THIS INSTANCE, IT WAS ABSOLUTELY CLEAR THAT GORE WAS RIGHT. THERE IS NO STANDARD ON WHICH YOU CAN SAY THAT THIS LAWYER WAS DOING THE JOB THAT HE OUGHT TO DO. IF THAT IS THE TEST THAT WE ARE TO REVIEW IT? I THINK IT IS, CERTAINLY, THE POINT OF BEGINNING. IF THE DEFENDANT COMES BEFORE THIS COURT AND SAYS THE LAWYER DIDN'T PRESENT SOMETHING THAT I NEED, AND YOU LOOK AND SAY, WELL, THE LAWYER WAS DOING HIS JOB, THAT, I THINK, SHOULD INFLUENCE THE DECISION. HERE IT IS CLEAR THAT THE LAWYER WASN'T DOING HIS JOB, AND WHEN GORE GOT TO THE PENALTY PHASE PART OF HIS CASE, HE DIDN'T HAVE A DEFENSE. HIS LAWYER DIDN'T PUT ON A DEFENSE. THE LAWYER SAID, WELL, WE ARE NOT GOING TO CALL IT A PROFESSIONAL. WE ARE NOT GOING TO CALL A MENTAL HEALTH PROFESSIONAL, AND THE DEFENDANT SAID I WANT ONE. WE WANTON. HE USED THE PLURAL OR THE -- WE WANT ONE. HE USED THE PLUROLOR THE RURAL WAY. AND IT WAS CLEAR, AND I QUOTED THIS LANGUAGE IN MY BRIEF. THE LAWYER HAS ABANDONED HIM AND SAID, WHAT DO YOU MEAN "WE"? WE ARE NOT GOING TO ASK FOR THAT. AND SO THEY WERE READY TO PROCEED. THEY WERE READY TO GO AHEAD WITH NOTHING, AND GORE WAS SAYING WAIT A MINUTE. WE CAN'T GO AHEAD. I NEED TO -- I NEED HELP. I NEED PROFESSIONAL HELP. AND IT NEVER WAS FORTHCOMING. WHAT DOES THE COURT DO? YOU KNOW, THIS CASE HAS CONSUMED A LOT OF TIME, AND A LITTLE BIT MORE TIME, IN TERMS OF LETTING MARY HABER OR SOMEBODY ELSE GO IN AND TALK TO HIM AND GET A LAWYER WHO KNEW HOW TO CONDUCT PENALTY PHASE, WOULD HAVE ELIMINATED THIS AND WOULD HAVE ALLOWED THIS COURT TO DO ITS JOB, AND UNFORTUNATELY THAT DIDN'T HAPPEN. THANK YOU, MR. NORRIS. NEXT CASE. THANK YOU, COUNSEL.