State of Florida v. Rudolph Holton

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. THE LAST CASE ON THE COURT'S DOCKET THIS MORNING IS STATE VERSUS HOLDEN. MAY IT PLEASE THE COURT. MY NAME IS STEPHEN AKE. I REPRESENT THE STATE OF FLORIDA IN THIS CASE. WE ARE HERE ON A STATE APPEAL FROM A POSTCONVICTION ORDER BY THE TRIAL JUDGE THAT GRANTED IN PART AND DENIED IN PART MR. HOLDEN, GRANTED HIM A NEW -- MR. HOLTON, GRANTED HIM A NEW GUILT PHASE PROCEEDINGS. BEFORE YOU GO INTO THE ARGUMENT, CAN YOU EXPLAIN TO ME FIRST WHERE WE GET OUR JURISDICTION ON APPEAL FROM AN ORDER GRANTING A NEW TRIAL? THE STATE IS ENTITLED TO FILE A NOTICE OF APPEAL ON THAT AND APPEAL THAT ORDER. WHAT GIVES THIS COURT JURISDICTION THOUGH? I AM NOT SURE I UNDERSTAND THE QUESTION, YOUR HONOR. WHEN THE STATE LOSES THAT PROCEEDING, WE ARE ENTITLED TO FILE A NOTICE OF APPEAL AND APPEAL THAT TO THIS COURT. BUT WHY WOULDN'T AN APPEAL GO TO THE DCA INSTEAD OF TO THIS COURT? BECAUSE WE HAD STIPULATED THAT HE WAS -- WAS ENTITLED TO A NEW PENALTY PHASE EARLY IN THE PROCEEDING. I THINK IT IS ALL PART AND PARCEL OF THE SAME CASE, SO I THINK IT DOES COME BEFORE THIS COURT. THAT HAS NEVER BEEN CHALLENGED, JURISDICTION OF THIS COURT ON THIS CASE, AND I BELIEVE THAT YOU HAVE TO TAKE THE MOLE WHOLE CASE IN CONJUNCTION AND BRING IT ALL UP TOGETHER AT ONE TIME, BUT IN GRANTING THAT NEW TRIAL, THE TRIAL COURT FOUND -- TO TAKE THAT WHOLE CASE IN CONJUNCTION AND FWRINING ALL UP TOGETHER AT ONE TIME, BUT THE TRIAL COURT FOUND, BASED ON NEWLY-DISCOVERED EVIDENCE DOING SOME DNA TESTING AND THE CUMULATIVE ANALYSIS REVIEW AND SAID THAT THOSE TWO ERRORS JUSTIFIED A NEW TRIAL. NOW, WITH REGARD TO THE BRADY MATERIAL, THERE WERE EIGHT ITEMS THAT THE TRIAL JUDGE FOUND AND THE STATE WOULD SUBMIT THAT THOSE WERE ERRONEOUSLY FOUND AS MATTER OF LAW. I WOULD LIKE TO BEGIN BY ADDRESSING THE FIVE ITEMS THAT RELATE TO A WITNESS NAMED FLEMME BURKINS. CAN WE GET AN OVERALL REVIEW OF THIS CASE, BECAUSE IT TROUBLES ME AND KOZ COMES TO - - AND COMES CLOSE TO ONE OF THE CLOSEST CASES TO POTENTIAL INNOCENCE THAT I HAVE SEECHBLT YOU HAVE GOT THIS SO-CALLED JAILHOUSE SNITCH, SO WE HAVE GOT THAT SEPARATE FROM THE BRADY ISSUE, BURKINS, SO HE IS DENYING THAT HE MADE THIS CONFESSION. WE HAVE GOT THIS DNA TESTING, SUBSEQUENT DNA TESTING THAT NOW SHOWS THAT THESE HAIRS THAT WERE THE ONLY PIECE OF PHYSICAL EVIDENCE THAT LINKED, POTENTIALLY LINKED THE DEFENDANT TO THE MURDER, WERE THE VICTIM'S HAIRS, AND THEN WE HAVE GOT A, ANOTHER, THESE OTHER, ANOTHER SUSPECT RAPED THIS VICTIM -- ALLEGEDLY, YES. -- ALLEGEDLY RAPED, AND ALLY RAPED, WHICH IS HOW THIS PARTICULAR VICTIM WAS FOUND, AND ONE OF THE WITNESSES WHO LOOKS AT, NOW, MR. PIERSON, SAYS, EVEN THOUGH HE HAD SAID THAT HE THOUGHT THAT THE DEFENDANT LOOKED SIMILAR TO WHO HE SAW, HE THOUGHT THAT PIERCE ONE LOOKED SIMILAR. DOESN'T THE STATE FEEL THAT, UNDER ALL THESE

2 CIRCUMSTANCES, THAT A NEW TRIAL WOULD BE THE, WOULD SERVE THE INTERESTS OF JUSTICE? NO, YOUR HONOR. THE STATE IS OF THE VIEW THAT THE EVIDENCE THAT WAS PRESENTED IN 1986 AT HIS ORIGINAL TRIAL ENTAILED MUCH OF THE EVIDENCE THAT IS HERE NOW. WE DO, OBVIOUSLY, WITH SOME EXCEPTIONS, THERE ARE SOME EXCEPTIONS TO THAT, BUT WE DON'T SUBMIT, WE WOULD SUBMIT THAT THAT HAS NOT UNDERMINED THE OUTCOME OF THIS CASE, AND NAMELY WITH REGARD TO THE VARIOUS, I THINK WE HAVE TO KIND OF CONFINE ORZ TO WHAT THE -- OURSELVES TO WHAT THE TRIAL COURT FOUND AS ERROR AND VIEW THIS ORDER FROM THAT STANDPOINT AND ADDRESS WHAT THE TRIAL COURT FOUND. THEY MADE A NUMBER OF ALLEGATIONS THAT THE TRIAL COURT REJECTED, THAT HE DISCREDITED CERTAIN WITNESSES AND THINGS LIKE. THAT I THINK WHAT THIS COURT HAS TO BE CONCERNED WITH IS WHAT HAS BEEN APPEALED TO IT AND THAT IS THE ORDER BY THE TRIAL COURT GRANTING A NEW TRIAL PHASE AND CONFINE OURSELVES TO THAT ORDER AND THOSE WERE THE BRADY MATERIAL AND THE DNA EVIDENCE, AND THE DNA EVIDENCE, I AM NOT GOING TO SUBMIT IN GREAT DETAIL. I WOULD SUBMIT THAT THAT WAS NOT EVER ARGUED AS A VITAL LINK TO THE CRIME. IT WAS ALWAYS PRESENTED TO THE JURY THAT IT WAS A NEGROID HAIR. IT COULD HAVE BEEN THE VICTIM'S. IT COULD HAVE BEEN THE DEFENDANT'S. I DON'T SUGGEST THAT THAT UNDERMINED THE RELIABILITY OF THE CASE. IF THE CASE HAPPENED IN 1988 AND IT WAS SUBMITTED THAT THAT WAS THE EVIDENCE AT THAT TIME, IT WOULD NOT AFFECT THE OUTCOME WHATSOEVER. ISN'T THAT SOMETHING THAT PEOPLE OFF THE STREET, WHEN IT IS ARGUED, THAT THIS IS THE HAIR AND IT IS CONSISTENT WITH THIS DEFENDANT'S MATCH, WHEN THIS TRUTH AND IN FACT IT IS NOT, WOULDN'T THAT BE A COMPELLING ARGUMENT TO LAY PERSONS AND PERSONS THAT ARE JURORS THAT WE EXPECT THEM TO MAKE DECISIONS? FIRST OFF IT WASN'T REALLY ARGUED THAT WAY DOWN BELOW. THE DEFENSE ARGUED IN HER CLOSING ARGUMENT THAT IT COULD HAVE BEEN THE VICTIM'S HAIR AND THE STATE GOT UP IN REBUTTAL AND ASKED A RHETORICAL QUESTION AND ASKED THE JURY TO DEFINE HOW THAT COULD BE. AND IT WAS NOT HER HAFERMENT THAT IS NOT CRITICAL TO THE STATE'S CASE. YOU HAVE TO LOOK AT ALL OF THE EVIDENCE AT THAT TIME, INCLUDING HOLTON'S INCONSISTENT STATEMENT TO LAW ENFORCEMENT OFFICERS. HE GAVE A NUMBER OF INCONSISTENT STATEMENTS. ARE YOU SAYING THAT THE DEFENSE, THE STATE, THE ATTORNEY SAID TO THE JURY, HE DEFIED THE DEFENSE ATTORNEY EXPLAINED HOW THE HAIR COULD BE THE VICTIM'S? RIGHT. THE HAIR CAN FROM -- AND WE KNOW THAT IT IS THE VICTIM'S. THE HAIR CAME FROM A TRANSITIONAL AREA DOWN IN THE PUBIC REGION OR ON THE BACK OF THE NECK, AND THE ARGUMENT WAS IN REBUTTAL TO DEFENSE COUNSEL'S ARGUMENT AND SOMETHING ALONG THE LINE OF THIS IS NOT LOGICAL TO ASSUME THAT THIS WOULD BE THE VICTIM'S HAIR. WE NOW KNOW THAT IT WAS, IN FACT, THE VICTIM'S HAIR, BUT, AGAIN, THAT WAS NOT A KEY PIECE OF EVIDENCE IN THIS CASE. WE HAD MUCH OTHER EVIDENCE THAT WAS KROB RATED -- CORROBORATED THAT WOULD SUPPORT -- WHAT WAS THE OTHER PHYSICAL EVIDENCE TO THE DEFENDANT? NOT JUSTICEICAL. AS I SAID, WE HAD A NUMBER OF -- I HIM TALKING ABOUT PHYSICAL EVIDENCE. HE DENIED BEING IN THE HOUSE AT A CERTAIN TIME. THEY FOUND A CIGARETTE PACK WITH HIS FINGERPRINTS ON IT IN A ROOM ADJACENT TO WHERE THE VICTIM WAS FOUND AND YOU HAVE

3 GOT TO PUT IT IN CONTEXT THAT HE CONTINUALLY DENIED TO OFFICERS BEING THERE AT THIS TIME AND THEN WHEN CONFRONTED WITH STATEMENTS THAT SO-AND-SO SAW YOU THERE, HE WOULD CHANGE HIS STORY, AND WHEN THEY SAID WE SAW A CIGARETTE PACK IN THERE, HE CHANGED HIS STORY YET AGAIN. HE DENIED BECAUSE HE WAS APPARENTLY DOING DRUGS, IS THAT RIGHT? YES AND ALL PRESENTED AT TRIAL BELOW AND REJECTED BY THE JURY. WHAT IS THE NEW INFORMATION WITH REGARD TO THE CIGARETTES? WAS THERE SOMETHING THAT CAME UP, AGAIN, THAT WOULD PUT QUESTION ON THE PACK OF CIGARETTES? I BELIEVE, MAYBE YOUR HONOR IS REFERRING TO THE ALIBI WITNESS, TRIED TO ARGUE THAT IT WAS PLANTED BY THE POLICE SOMEHOW THAT, THEY HAD SEIZED A PACK OF CIGARETTES FROM HIS BOARDING ROOM BUT THAT WAS TOTALLY REFUTED AND DEFENSE COUNSEL DIDN'T GO WITH THAT THEORY AT TRIAL BECAUSE THE CRIME SCENE TEXAS COME IN -- TECHS CAN CAME IN IMMEDIATELY AND TOOK PICTURES AND IT WAS -- THE CRIME SCENE TECHS CAME IN IMMEDIATELY AND TOOK PICTURES AND IT WAS THERE. SO AS A MATTER OF LAW FINDING THAT THESE ITEMS WERE WRAD I, THE COURT WAS IN -- THESE ITEMS WERE BRAID AND THE COURT WAS IN ERROR. YOU HAVE THAT HE WAS IN JAILHOUSED WITH MR. HOLTON AND TWO PENDING CHARGES, AND THE ONLY ITEM IN THEIR ARGUMENT THAT WAS CONSTITUTED UNDER WAS BRADY. THE OTHERS WERE ARGUED UNDER A PSC CLAIM, AN FDLE RAP SHEET AND TWO LETTERS, ONE A HANDWRITTEN LETTER AND ONE A HANDWRITTEN PRO SE MOTION BY MR. BURKINS. MR. BUR KISMT NS TESTIFIED IN MR. BURKINS TESTIFIED IN 1986 THAT MR. HOLTON ADMITTED THE CRIME. SHE KNEW THAT HE HAD THE PENDING CHARGES AND DID NOT HAVE A DEAL WITH THE STATE AND PLED OPEN TO THE TRIAL JUDGE, AND HE FULLY EXPECTED, UPON HIS PLEA OF GUILTY, THAT HE WAS GOING TO GET A THREE-YEAR SENTENCE. THAT WAS HIS UNDERSTANDING AND HAD ALWAYS BEEN HIS UNDERSTANDING. THE STATE ATTORNEY, AT THE TIME THAT HE WAS THERE, THE SCORE SHEET INDICATED THAT HE FACED A RANGE OF THREE AND-A-HALF TO FOUR AND-A-HALF YEARS AND THAT WAS WHAT WAS PRESENTED TO THE JURAT MR. HOLTON'S ORIGINAL TRIAL. COME TO FIND OUT ABOUT THREE WEEKS AFTER MR. HOLTON'S TRIAL, MR. BURKE INSIDE WENT FOR SENTENCING -- MR. BURKINS WENT FORENTING HIMSELF -- FOR SENTENCING HIM SLCHLT THE -- HIMSELF. IT WAS ARGUED TWO YEARS LATER THAT THE TRANSCRIPT WAS SUPPRESSED SOMEHOW. BUT THAT BE AS IT MAY, AT THE HEARING THE PROSECUTOR IN MR. HOLTON'S CASE WENT UP THERE AND SAID WE REALIZE NOW THAT THE SCORE SHEET IS REALLY INCORRECT. HE REALLY SCORES IN A RANGE OF 9-TO-12 YEARS AND THAT WAS IN ERROR, AND HE ALSO INDICATED THAT HE HAD TURNED OVER THE PSI TO DEFENSE COUNSEL IN MR. HOLTON'S TRIAL BUT SHE DENIED THAT AT EVIDENTIARY HEARING, BUT BASICALLY IT ALL BOILS DOWN TO THE ANALYSIS OF THE FIVE ITEMS AND ALL BOILS DOWN TO THAT THEY CAN'T SHOW THAT MR. HOLTON WAS PREJUDICED IN AN ALL OF THIS. TELL ME AGAIN ABOUT THE WITNESS AND THAT HE DID ACTUALLY SERVE COMPARED WITH WHAT THE EVIDENCE S I AM CONFUSE BAD THAT NOW. IN OTHER WORDS AT THE TRIAL -- AT HOLTON'S TRIAL. -- HE TESTIFIED THAT HE HAD NO DEAL WITH THE STATE AND THAT HE FACED A POSSIBLE SENTENCE OF WHAT? WELL, HE FACED, THE SCORE SHEET THAT HE WAS SHE WAS IMPEACHING HIM SAID THREE AND-A- HALF TO FOUR AND-A-HALF YEARS. THAT IS WHAT SHE WAS USING THERE AT TRIAL AND HE TESTIFIED I WENT AHEAD AND PLED OPEN AND IT IS MY UNDERSTANDING THAT I AM GOING TO GET THREE YEARS. HE WAS FACING MUCH HIGHER?

4 HE WAS FACING FIVE YEARS ON EACH COUNT AND YOU ARE ALSO FACING A HABITUAL SENTENCE, SHE TOLD HIM, AND YOU CAN ACTUALLY GET DOUBLE. WHAT DID ACTUALLY HAPPEN? THE STATE, AS I WOULD POINT OUT, IS THAT MR. BURKINS GOES TO THE COURT AND STARTS EXPRESSING CONCERN ABOUT HIS SAFETY AND THE COURT DEPARTS AND GIVES HIM A FIVE- YEAR PROBATIONARY TERM AND A YEAR IN JAIL. THERE WAS CERTAINLY A DIFFERENCE IN WHAT HAPPENED TO HIM. NOTHING THAT WAS A SURPRISE TO THE DEFENSE ATTORNEY. THE ONLY NEW EVIDENCE WAS THAT HE HAD A SCORE SHEET THAT SAID 9-TO-12 YEARS AS OPPOSED TO THREE AND-A-HALF TO FOUR AND-A-HALF. THAT WAS THE ONLY DIFFERENCE AND NOT A SIGNIFICANT DIFFERENCE AND THE STATE ATTORNEY BROUGHT OUT THAT HE COULD FACE A HABITUAL SENTENCE AND GET A SENTENCE IN THAT RANGE. SO HE ENDED UP SERVING NO TIME AND GETTING PROBATION? THAT IS FOR TESTIFYING AGAINST THE DEFENDANT. CORRECT BUT THAT HAD NOTHING TO DO WITH THE STATE. THAT WAS THE ARGUMENT OF THE DEFENSE ATTORNEY THAT WAS REPRESENTING MR. BURKINS MADE ON HIS BEHAVE, AND CONVINCE THE JUDGE AND IF YOU WILL READ HIS TRANSCRIPT FROM THE SENTENCING HEARING, YOU WILL SEE THAT THE JUDGE SAID MR. BURKINS COOPERATED WITH US AND TESTIFIED AS TO HIS INVOLVEMENT. YOU DON'T THINK THE JURY WOULD HAVE BEEN SUSPICIOUS OF THAT? I THINK THE JURY IS ALWAYS SUSPICIOUS US OF JAILHOUSE INFORMANTS, WHEN THEY HAVE -- YOU DON'T THINK THEY WOULD BE SUSPICIOUS, WHEN THEY HAVE SOMEBODY FACING A VERY LENGTHY PRISON SENTENCE ENDED UP SERVING NO TIME AT ALL? THEY KNEW THAT GOING IN, BUT SOMEHOW YOUR HONOR IS TRYING TO IMPUTE THAT TO THE STATE AS SOME KIND OF VIOLATION, BUT THE STATE HAD NOTHING TO DO WITH HIS ACTUAL SENTENCE. IT WAS ALL WHAT HE WAS FACING. I THOUGHT THAT YOU SAID THE STATE POINTED OUT HIS COOPERATION AND THAT THE DEFENDANT AT THIS PERSON'S SENTENCING. WENT TO BAT FOR HIM. AT MR. HOLTON'S TRIAL. YEAH. AND THAT WAS BROUGHT OUT TO THE JURY, SO I DON'T SEE HOW HE COULD BE PREJUDICED BY IT AT THIS POINT. HAS BURKISM NS RECANTED? HE HAS. WHAT IS THE STATUS OF THAT ASPECT OF THIS CLAIM? NONE. IS HE NOT EVEN INVOLVED IN THIS CLAIM. SO NO NEWLY-DISCOVERED EVIDENCE? NO. THIS IS STRICTLY AS TO THE ALLEGED BRADY MATERIAL THAT WAS ALLEGEDLY SUPPRESSED BY THE STATE, AND AS I TRY TO POINT OUT, A NUMBER OF THIS WAS, SOME OF IT WAS PUBLIC

5 RECORD THAT WAS IN HIS COURT FILE. IS THIS THE SAME JUDGE THAT TRIED THE CASE OR A DIFFERENT JUDGE? NO. SAME JUDGE. RIGHT BEFORE THIS. THE SAME JUDGE. NO, BUT THE SAME JUDGE THAT TRIED THIS CASE ORIGINALLY? OH, I AM SORRY. I THOUGHT YOU WERE TALKING ABOUT THE JUDGE IN THE PREVIOUS CASE BEFORE US AND THAT IS WHO DID THIS EVIDENTIARY HEARING. NO. THE DEFENSE ATTORNEY WAS MYNA MORGAN AND THE DEFENSE ATTORNEY WAS GEORGE COIN GEORGE COE IN LET ME UNDERSTAND THAT THE STATE HAS STIPULATED TO A NEW PENALTY PHASE, CORRECT? CORRECT. SO THERE IS NO PENDING DEATH PENALTY. NOT, WELL, NOT AT THIS TIME, NO. OKAY. AND THE TRIAL JUDGE HAS ORDERED A NEW TRIAL ON THE GUILT PHASE. CORRECT, YOUR HONOR. NOW, GOING BACK TO JUDGE CANTERO'S ORIGINAL QUESTION, IF DURING THE GUILT PHASE, DURING THE PREPARATION FOR THE GUILT PHASE, THERE IS SOME MATTER THAT IS TO BE RAISED INTERLOCUTORY IN THIS CASE, THAT WOULD GO TO THE COURT OF APPEALS, CORRECT? ONCE IT GOES BACK? IS THAT WHAT YOU ARE SAYING? YES. I WOULD PROBABLY BELIEVE SO. PERHAPS, I THINK, THE REASON IT IS HERE IS BECAUSE IT WAS PART OF THE IT WAS PART OF THE RULING ON THIS MOTION. AND THAT IS WHY WE ARE HERE. THE PROBLEM, THOUGH, IS THAT THERE IS NO PENDING DEATH PENALTY, AND UNDER OUR CASE LAW, ISN'T IT CORRECT THAT, I MEAN, UNDER CASE LAW STATE VERSUS FOURTH DISTRICT COURT OF APPEALS, THIS COURT HELD THAT THIS COURT'S JURISDICTION IS LIMITED TO INSTANCES IN WHICH THERE IS A DEATH PENALTY PENDING. WELL, YOUR HONOR, I REALLY DON'T KNOW IF IT SHOULD BE PARS HE WOULD OUT WHEN IT WAS BASED ON A RULING ON THIS PARTICULAR MOTION, AND WHETHER, IF WE ARE IN THIS COURT WITHOUT JURISDICTION, THEN I APOLOGIZE OBVIOUSLY, BUT I BELIEVE THAT THIS WAS THE PROPER VEHICLE TO BRING THIS APPEAL, BEING AS IT WAS, THE SAME LET ME ASK YOU TO ADDRESS WHAT ABOUT THE KATRINA GRANT REPORT AND ALL THE EVIDENCE LINKING SOMEONE ELSE TO THE CRIME? SO FAR YOU HAVE BEEN TALKING ABOUT THIS ONE WITNESS. RIGHT. I WAS GOING TO GET TO IT. TO ME THE STRONGER BRADY MATERIAL IS THE ONE LINKING THE OTHER PERSON TO THE CRIME. RIGHT. THE VICTIM HAD ALLEGEDLY BEEN RAPED ABOUT A WEEK BEFORE THE OFFENSE. NOW, DEFENSE COUNSEL KNEW ALL THIS MATERIAL AT TRIAL. SHE KNEW THAT SHE HAD BEEN RAPED THE WEEK BEFORE. SHE KNEW THAT SHE HAD GIVEN A FALSE NAME, AND SHE KNEW THAT THE PERSON THAT HAD DONE THE OFFENSE WAS A GUY NICKNAMED PINE THAT, GAVE THE NAME DONALD SMITH TO POLICE OFFICERS, WHEN HE WAS ARRESTED. THEY KNEW ALL THAT MATERIAL. THE STATE DIDN'T KNOW ALL THIS MATERIAL. THEY WERE OUT THERE WITH THEIR

6 INVESTIGATORS FINDING ALL OF THIS STUFF OUT, SO THEY HAD ALL OF THE KNOWLEDGE THAT WAS CONTAINED IN THE REPORT. THEY KNEW EVERYTHING AND THEY EVEN TRIED TO GET IT IN THROUGH A WITNESS'S DEPOSITION. THEY WEREN'T SUCCESSFUL IN THAT REGARD. THE MARSHAL HAS REMINDED YOU OF YOUR REBUTTAL TIME, IF YOU WANT TO PAUSE AT THIS POINT. EYE WILL SAVE. CHIEF JUSTICE: -- I WILL SAVE. CHIEF JUSTICE: OKAY, THANK YOU. GOOD MORNING, LINDA McDERMOTT AND MARTIN McCLAIN, ON BEHALF OF THE APPELLEE. IT IS NOT THE DEFENSE ATTORNEY'S BURDEN TO PROVIDE INFORMATION. IT IS THE PLAINTIFF'S COUNSEL TO PROVIDE ANYTHING THAT IS EXCULPATORY IN THIS CASE AND AS JUDGE PERRY FOUND, THE PROSECUTOR AND POLICE DID NOT DO. THAT IT IS THEIR BURDEN BUT THAT MAKES NO DIFFERENCE UNDER THE CASE LAW. WHAT ABOUT THE RELATIONSHIP TO THIS POTENTIAL OTHER SUSPECT? WHAT WAS THE EVIDENCE BELOW AS TO THE STATE'S AWARENESS COMPARED TO THE DEFENSE AWARENESS? WHAT MS. MORGAN KNEW AT THE TIME OF TRIAL WAS THAT MS. GRADY HAD ALLEGED THAT SHE HAD BEEN RAPED APPROXIMATELY A WEEK BEFORE HER MURDER. SHE HAD SAID THAT SHE HAD BEEN RAPED BY AN INDIVIDUAL WHO SHE ONLY KNEW AS PINE. MS. MORGAN WAS UNCOVERING THIS INFORMATION FROM THE VICTIM'S VERY OWN FAMILY. MS. GRADY HAD ALSO TOLD SOME OF HER FRIENDS AND HER BOYFRIEND AT THE TIME THAT SHE HAD BEEN ANDALLY RAPED AND MR. - - ANALLY RAPED AND MR. PINE OR THE MAN SHE KNEW AS PINE HAD ALSO CHOKED HER. THAT WAS WHAT SHE KNEW. SHE HAD NOTHING TO SUPPORT, SHE HAD NO IDEA WHO PINE WAS, WHAT HIS IDENT WAS. SHE COULDN'T GET AHOLD OF THE POLICE REPORT. THE FAMILY DID SAY MS. GRADY PROBABLY USED AN ALIAS BECAUSE SHE HAD A WARRANT PENNEDING FOR HER. WHAT BERNARD BLACK, THE VICTIM'S STEPFATHER AT THE TIME SAID WAS, SHE TOLD ME THAT PINE USED SOMEONE ELSE'S NAME, SOMEBODY NAMED DONALD, BUT WE DON'T KNOW THE LAST NAME. MS. MORGAN, AT THE EVIDENTIARY HEARING, TESTIFIED THAT SHE, AND HER INVESTIGATOR, SPENT A CONSIDERABLE AMOUNT OF TIME TRYING TO FIND OUT WHO PINE WAS, WHAT HIS IDENTITY WAS, TRYING TO GET A PHOTOGRAPH OF HIM, TRYING -- WHAT DID THE STATE KNOW ABOUT THIS, PINE? WHAT THE STATE, WHAT WE PRESENTED AT THE EVIDENTIARY HEARING WERE THAT THERE WERE, IN FACT, POLICE REPORTS DATED JUNE 13, 1986, TEN DAYS BEFORE THE VICTIM'S MURDER, WHERE PINE, WHOSE REAL NAME IS DAVID PIERCE ONE, KATRINA GRADY ACCUSED OF FORCIBLY ANALLY RAPING HER, AND AT THAT TIME NOT ONLY WAS A POLICE REPORT FILLED OUT FOR THE RAPE BUT THERE WAS, ALSO, A POLICE REPORT FILLED OUT FOR AN OBSTRUCTION OF JUSTICE CHARGE FOR MR. PIERCE ONE BECAUSE HE GAVE THE NAME DONALD LAMAR SMITH. SO HE WAS FULLY IDENTIFIED IN THE POLICE RECORDS AT THAT TIME? HE WAS FULLY IDENTIFIED IN THAT REPORT AS DAVID PIERCE ONE, AND IN THE OBSTRUCTION REPORT, THERE, HE WAS ALSO CHARGED WITH THAT, AND THEN THEY WROTE DOWN THAT HE HAD BEEN USING THE NAME DONALD LAMAR SMITH, WITH SOME IDENTIFYING A BIRTHDATE. HOW DID YOU, HOW WAS THIS OBTAINED POST TRIAL? POST TRIAL IT WAS OBTAINED BECAUSE WE KNEW THE IDENTITY OF PINE. WE FOUND THAT OUT THAT PINE WAS IN FACT DAVID PIERCE ONE, AND WE WERE ABLE TO ASK FOR HIS, TAMPA POLICE

7 DEPARTMENT RECORDS, AND IN THE COURSE OF THE PRODUCTION OF RECORDS, WE WERE GIVEN THE REPORTS. THERE IS NO NOTHING SHOWING THAT THE STATE THOUGHT THERE WAS A CONNECTION. DID THEY, ONCE KNOWING THAT THERE WAS A CLAIM THAT SHE HAD BEEN RAPED THE WEEK BEFORE AND HAD BEEN RAPED ANALLY, DID THE STATE PURSUE THAT, THEMSELVES, AND INVESTIGATE, USUALLY WITH THIS QUESTION OF OTHER SUSPECTS, IT IS USUALLY THE STATE THAT IS TRYING TO FIGURE THAT OUT. RIGHT. THERE WAS NO TESTIMONY REGARDING THAT AT THE EVIDENTIARY HEARING. THE DEFENSE'S POSITION WAS THAT THE STATE HAD NEVER INVESTIGATED THAT SUSPECT, EVEN DESPITE THE FACT THAT THEY FELT THAT THAT WAS THE STRONGEST SUSPECT IN THE CASE, AND THE FAMILY FELT THAT THAT WAS THE SUSPECT AND THAT WAS THE PERSON LIKELY TO HAVE BEEN INVOLVED IN MS. GRADY'S MURDER, AND IT DOESN'T MATTER THAT THE POLICE DEPARTMENT HAD THE INFORMATION AND NOT THE PROSECUTOR, BECAUSE UNDER KYLES, ANY INFORMATION THAT IS EXCULPATORY THAT THE POLICE DEPARTMENT HAS POSSESSION OF OR LAW ENFORCEMENT OR A STATE ACTOR IS IMPUTED TO THE PROSECUTOR. YOU SAID THAT THEY FELT WAS THE STRONGEST SUSPECT. -- STRONGEST SUSPECT. WHO IS THEY? THE DEFENSE THOUGHT THAT WAS THE STRONGEST SUSPECT, AND THAT WAS WHY THEY THOUGHT THEIR DEFENSE THAT MR. HOLTON WAS INNOCENT AND THE FACT THAT SOMEONE ELSE HAD DONE THE CRIME AND COULD THEY SHOW OR PROVE THAT THIS RAPE HAD SUPPOSEDLY HAPPENED AND NOT EVEN THE RAPE BUT JUST ACCUSATION OF THE RAPE HAD HAPPENED, THAT WOULD PROVIDE A STRONG MOTIVATION FOR SOMEONE ELSE TO COMMIT MURDER. AND, ALSO, JUST IN TERMS OF WHAT, ALSO, CAME OUT FROM THOSE TWO REPORTS FROM JUNE 13 WAS THE STATE REPRESENTED THAT MS. MORGAN KNEW DONALD SMITH'S NAME. SHE, IN FACT, DID NOT. SHE KNEW THAT SOMEONE NAMED DONALD HAD BEEN USED IN THE OBSTRUCTION, WHEN PINE GAVE THE NAME DONALD, TO TRY AND AVOID BEING ARRESTED. HOWEVER SHE NEVER KNEW HIS LAST NAME. SHE NEVER KNEW HOW TO FIND HIM. I AM TRYING TO FIND OUT. IF SHE DIDN'T KNOW, THEN WHAT IS IN THE RECORD ABOUT HOW YOU, THEN, FOUND OUT, AFTER THE TRIAL? WELL, WE FIND OUT AT TRIAL, WE FIND OUT AFTER TRIAL, BECAUSE WE LEARNED THE TRUE IDENTITY OF PINE. HOW IS? IS THAT IN THE RECORD? I DON'T RECALL. I DON'T THINK IT IS IN THE RECORD. I MEAN MOST LIKELY SOMEONE JUST FOUND OUT THAT DAVID PIERCE ONE WAS REALLY PINE, AND IF YOU LOOK AT THE -- DAVID PIERCE ONE WAS REALLY -- DAVID PIERSON WAS REALLY PINE, AND IF YOU LOOK AT THE RECORDS ON APPEAL, THE POLICE REPORT INCLUDES DAVID PIERSON AS PINE, AND THOSE RECORDS PRECEDE THE 1986 HOMICIDE. NOT THAT IT WILL PLAY INTO ANY ANALYSIS, BUT IS THERE ANY EXPLANATION WHY THE DEFENSE LAWYER DIDN'T GO TO THE POLICE AND SAY SHE WAS RAPED THE WEEK BEFORE AND HAVE YOU INVESTIGATED THAT, AND DO YOU HAVE A SUSPECT, AND HERE IS THE INFORMATION THAT WE HAVE, AND IS THERE ANY EXPLANATION FOR THAT? NO. I MEAN, WHAT SHE TESTIFIED THAT SHE DID AND HER INVESTIGATOR DID WAS THEY SPENT A LOT OF TIME IN THE COMMUNITY TRYING TO FIND OUT WHO IS PINE, AND AT ONE POINT SHE SAID SHE HAD A FALSE LEAD.

8 BUT SHE KNEW THAT THIS HAD BEEN REPORTED TO THE POLICE. IS THAT CORRECT? ANOTHER VICTIM'S FAMILY WAS TELLING HER KATRINA TOLD US SHE REPORTED THE CRIME. SHE DIDN'T EXPLAIN WHY SHE DIDN'T GO TO LAW ENFORCEMENT AND TRY TO OBTAIN MORE INFORMATION, BUT SHE DIDN'T HAVE ANY, SHE KNEW THAT THE VICTIM IN THE CASE WAS USING ALIAS, AND SHE DIDN'T HAVE THE TRUE NAME OF THE PERPETRATOR AND SHE DIDN'T HAVE THE DAY. SHE DIDN'T HAVE ANY OF THE INFORMATION THAT WOULD HAVE ALLOWED HER, EVEN HAD SHE SHOWN UP AT THE POLICE DEPARTMENT, TO GET THAT INFORMATION. SHE KNEW IT WAS A WEEK BEFORE? THEY WERE SAYING IT WAS APPROXIMATELY A WEEK BEFORE, BUT SHE DIDN'T HAVE THE DATE. SHE DIDN'T KNOW WHERE IT HAD HAPPENED, SHE DIDN'T KNOW ANYBODY'S NAME THAT WOULD BE IN THAT REPORT. SO IT WAS SORT OF, I MEAN, SHE JUST DIDN'T, SHE TRIED, WHAT SHE WANTED TO DO WAS SHE WANTED TO FIND OUT THE IDENTITY OF PINE. SHE BELIEVED THAT, HAD SHE FOUND OUT HIS IDENTITY, IT WOULD HAVE LED TO EXACTLY WHAT IT DID LEAD TO, WHICH WAS COMPELLING EVIDENCE THAT HE, IN FACT, IS THE REAL KILLER IN THIS CASE. DO YOU AGREE THE MOST LOGICAL PLACE TO FIND THAT OUT WOULD HAVE BEEN TO GO TO THE POLICE? AND SAY YOU KNOW, I HAVE, HOPEFULLY, THE SAME INFORMATION THAT YOU HAVE, AND YOU PROBABLY HAVE A MORE, THAT THERE HAD BEEN THIS PREVIOUS RAPE, AND TELL ME WHAT YOU HAVE GOT ABOUT NOT, AS I SAY, I DON'T KNOW HOW IT PLAYS IN THE ANALYSIS OF BRADY, BUT NEVERTHELESS, I AM LEFT WONDERING WHY THE DEFENSE LAWYER, WHEN SHE SHE FOUND OUT A THAT THIS CRIME -- WHEN SHE FOUND OUT THAT THIS CRIME HAD OCCURRED A WEEK BEFORE AND HAD BEEN REPORTED AND SAY START INVESTIGATING THAT PERSON. ISN'T HE A LOGICAL SUSPECT IN THE CASE, BUT THERE IS NO EXPLANATION. NO, YOUR HONOR. TO MOVE ON THE DONALD SMITH EVIDENCE, CHINK IS CRITICAL AND COULD HAVE COME FROM A COUPLE OF VARIOUS SOURCES. DONALD SMITH THERE, IS A ACTUAL POLICE REPORT IN MR. HOLTON'S CASE THAT WAS SUPPRESSED, WHERE DONALD SMITH WAS INTERVIEWED AT THE CRIME SCENE. HE HAD SOME INFORMATION ABOUT WHAT HAD HAPPENED. HE KNEW THAT THERE WAS A VICTIM IN THE HOUSE. THERE WAS A FEMALE VICTIM. HE USED A NAME, AND HE SAID HOW, IN THE REPORT IT SAYS THAT HE ASKED WHAT HAPPENED? WHY IS KATRINA CHOKED? OR SOMETHING TO THAT EFFECT? AND THAT REPORT WAS SUPPRESSED. AT THAT TIME, DONALD SMITH GAVE HIS NAME, HIS ADDRESS, HIS IDENTIFYING INFORMATION. THE OTHER REPORT, ALSO WHICH INCLUDED DONALD SMITH'S NAME, WAS ALSO SUPPRESSED. DONALD SMITH'S, THE STATE ATTORNEY IN HIS CLOSING ARGUMENT AT TRIAL, ARGUED THAT FLEMME B RUCHLT R -- FLEMME BURKINS WAS KEY TO THE CASE. DONALD SMITH IS NOT PIERSON? NO. DOMD SMITH IS A LONG TIME FRIEND OF PIERSON AND PIERSON AND HE HAVE SIMILAR BIRTH DATES, AND IF YOU LOOK AT THE RECORDS IN THE RECORD ON APPEAL FROM THE EVIDENTIARY HEARING, PIERSON CONSTANTLY USED DONALD SMITH'S NAME AND DATE OF BIRTH WHENEVER HE WAS ARRESTED, SO -- THE IDEA IS THAT DONALD SMITH WOULD HAVE GOTTEN THE INFORMATION ABOUT KATRINA FROM PIERSON. IS THAT -- WELL, THAT WAS ONE OF THE THINGS. I MEAN, WHAT HAPPENED WAS DONALD SMITH LEADS TO THIS ENTIRE EXPLANATION OF WHAT REALLY HAPPENED IN THIS CASE. DONALD SMITH SAYS THAT THE DAY FOLLOWING THE ALLEGED RAPE, KATRINA GRADY SHOWS UP AT HIS HOUSE AND ASKS ARE YOU DONALD SMITH? AND SHE SAYS YEAH, AND SHE SAYS WHAT IS YOUR BIRTHDATE, AND HE TELLS HER, AND THEY HAVE THIS EXCHANGE, AND SHE TELLS HIM PINE RAPED ME YESTERDAY AND HE USED YOUR NAME AND YOU SHOULD KNOW THIS, BECAUSE YOU MIGHT BE

9 GETTING IN TROUBLE FOR THIS. DONALD SMITH THEN SAYS THAT KATRINA IS UPSET. HIS WIFE WITNESSES THIS EXCHANGE BETWEEN THE TWO OF THEM AND SHE IS ACTUALLY ASKING DONALD SMITH CAN YOU HELP ME RETALIATE AGAINST PINE? DONALD SMITH TRIES TO CALM HER DOWN AND SAYS YOU KNOW, LET'S TAKE A WALK. AS THEY ARE WALKING THROUGH THE NEIGHBORHOOD, THEY ACTUALLY ENCOUNTER DAVID PIERSON, WHO IS PINE. DONALD SMITH ASKS HIM, HEY, WHY DID YOU USE MY NAME WHEN YOU RAPED THIS GIRL YESTERDAY? THIS IS TESTIMONY FROM THE EVIDENTIARY HEARING. YES. WHICH JUDGE PERRY CREDITED. AND WHY DID YOU USE MY NAME, AND IMMEDIATELY KATRINA AND DAVID PIERSON START SCREAMING AT EACH OTHER, THREATENING EACH OTHER. HE SAYS I AM GOING TO KILL YOU, AND DONALD SMITH AT THAT POINT KIND OF WANTS TO GET AWAY. IT IS CREATING A BIG SCENE. HE KIND OF WALKS AWAY. THE NEXT POINT WHERE KIND OF DONALD SMITH IS IMPORTANT IS THE DAY OF THE HOMICIDE. HE SEES SMOKE FROM THE HOUSE. AND HE RUNS OVER TO THE CRIME SCENE. ON HIS WAY TO THE CRIME SCENE, HE SAYS HE ENCOUNTERS DAVID PIERSON, AND DAVID PIERSON TELLS HIM THAT KATRINA IS IN THE HOUSE DEAD. SHE HAS BEEN CHOKED. HE RUNS UP TO THE CRIME SCENE AND HE BLURTS OUT WHAT HAPPENED? WHO CHOKED KATRINA? HE IMMEDIATELY IS SWARMED BY POLICE OFFICERS WONDERING HOW HE HAS ANY INFORMATION ABOUT THIS CASE AND THEY TAKE A REPORT FROM HIM. HE IS, IN FACT, INTERVIEWED BY THE LEAD DETECTIVE. THERE IS NO RECORD OF THAT. THERE IS NO, BUT IN THE CRIME SCENE OFFICER'S REPORT, IT SAYS HE IS INVESTIGATED BY DETECTIVE KEVIN DURKIN. THEY HAVE NO REPORT OF THAT. AT THE TIME HE SAYS HOW DO YOU KNOW THIS AND DONALD SMITH SAYS SOME GUY JUST TOLD ME. HE DIDN'T WANT TO SAY WHO TOLD HIM AT THAT POINT, BECAUSE THERE WAS A GROUP OF INDIVIDUALS AND HE DIDN'T WANT TO BE CHARACTERIZED AS A SNITCH, SO HE TELLS THEM WHAT HE KNOWS. HE GIVES THEM HIS INFORMATION AND NO ONE EVER COMES BACK TO SPEAK TOM. DONALD SMITH SAYS, THEN THAT, A COUPLE OF WEEKS AFTER THE MURDER, PINE IS OVER AT HIS HOUSE. HE IS CUTTING HIS HAIR, AND HE SAYS TO HIM DID YOU KILL CATHERINE, A AND PINE CONFESSES TO HIM, AND HE SAYS, YES -- AND PINE CONFESSES TO HIM, AND HE SAYS YES, SHE TOOK MY DRUGS AND HE CALLS THE COPS AND HE STARTS EXPLAINING WHY HE KILLED HER. DID THE DEFENSE KNOW OF DONALD SMITH'S KPINS AT THE TIME OF THE TRIAL? NO. SHE NEVER -- EXISTENCE AT THE TIME OF THE TRIAL? NO. SHE NEVER OF HIS KPINS. IT HAD BEEN SUPPRESSED AND THE -- OF HIS EXIST TENS. IT HAD BEEN SUPPRESSED AND THE REPORT WAS NOT AVAILABLE AND THAT IS WHAT SHE SAYS WAS SUPPRESSED. DID SHE KNEW ABOUT LINE? NO. SHE BELIEVED MR. HOLTON WAS INNOCENT AND SHE FELT LIKE THE WAY TO PROVE THAT WAS TO FIND ANOTHER SUSPECT, TO SHOW THAT SOMEONE HAD A MOTIVE TO COMMIT CRIME, AND JUST COULDN'T GET TO THAT POINT, BECAUSE OF THE NICKNAME AND NOT HAVING ANY, ANYTHING, ANY REAL FACTS ABOUT THE ALLEGED RAPE INCIDENT. SO DONALD SMITH OBTAINS THE CONFESSION FROM PINE. HE TELLS HIS WIFE ABOUT THE CONFESSION. HE TELLS ANOTHER FRIEND ABOUT THE CONFESSION. THAT FRIEND, WHO ALSO TESTIFIED AT THE EVIDENTIARY HEARING, GEORGE DEWY SMITH, ALSO RATES THAT, WHEN HE CONFRONTED MR. PIERSON ABOUT THE ALLEGATION, MR. PIERSON DIDN'T RESPOND BUT WALKED AWAY AND SUBSEQUENTLY MR. SMITH INDICATED THAT MR. PIERSON DEVELOPED A SEVERE DRUG HABIT AFTER THAT AND WAS NEVER THE SAME, IS HOW HE DESCRIBED HIM. SO -- WHAT WAS THE STATUS OF THE BURKISM N RECANTATION? IS -- OF THE BURKIN RECANTATION? IS THAT A SEPARATE CHRACHL NEWLY-DISCOVERED EVIDENCE? IT WASN'T A SEPARATE CLAIM OF NEWLY-DISCOVERED EVIDENCE BECAUSE THE IMPORTANT THING ABOUT THE BURKINS EVIDENCE AND BURKINS TESTIMONY, WHICH WAS CERTIFIED AS

10 CREDIBLE ABOUT THE -- BY THE COURT, BECAUSE HE LIED TO THE CONFESSION IN ORDER TO GET THE DEAL, AND WE KNOW THAT HE LIED BECAUSE RUDOLPH HOLTON WAS IN THE JAIL WHEN HE ALLEGEDLY OBTAINED THE CONFESSION. HE WAS GIVING A STATEMENT OF HIS OWN AT THE TIME WHEN FLEMME BURKINS SAYS HE TOLD HIM HE KILLED THE VICTIM. IT IS NOT A JILL GOIO -- A JILL YO CLAIM, WHEN HE SAID THAT HE -- A GILIO CLAIM, WHEN HE SAID THAT HE KNEW HE WAS LYING. IT DOESN'T ALWAYS WORK TO HAVE A FIRM DEAL IN PLACE, BECAUSE IT TAINTS THE WITNESS, AND THAT IS EXACTLY WHAT MR. BURKE INSIDE SAID. HE -- MR. BURKINS SAID. HE SAID WE WILL TRY TO GET YOU OUT OF JAIL, BECAUSE HE KNEW WHAT HAPPENED. BUT THE FACT THAT HE WASN'T THERE AT THE JAIL, AT THE TIME THAT HE SAID THAT THE CONFESSION, I MEAN, THAT WAS ALL FACTS THAT WERE AVAILABLE AT THE TIME OF TRIAL. WELL, THAT WAS IN A POLICE REPORT, AND IT WAS NEVER USED FOR IMPEACHMENT, AND WE PLED THAT AS INEFFECTIVE ASSISTANCE OF COUNSEL AND THE LOWER COURT FOUND THAT THERE WAS NO INEFFECTIVE ASSISTANCE OF COUNSNECESSARILY THIS CASE BECAUSE HE GRANTED THE BRADY CLAIM AND THE NEWLY-DISCOVERED EVIDENCE CHRICHLT DENIED THE INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM OR DID NOT REACH IT? HE ACTUALLY DENIED IT. BECAUSE THE CLAIMS WERE PLED IN THE ALTERNATIVE, THEY WERE EITHER SHE DIDN'T DO HER JOB OR THE STATE DIDN'T GIVE HER THE INFORMATION SHE NEEDED TO DO HER JOB, AND THE PREJUDICE ANALYSIS IS THE SAME, SO HE FOUND THAT, IT WASN'T THAT SHE WAS INEFFECTIVE. IT WAS THAT THE REPORTS WERE SUPPRESSED, AND SO THAT WAS WHY HE DIDN'T, YOU KNOW, HE DIDN'T FIND HER INEFFECTIVE. DID THE TRIAL JUDGE FIND BURKINS TO BE CREDIBLE ABOUT THE DEAL? YES. DID HE MAKE A FINDING? WELL, HE, IT IS IN THE ORDER THAT HE FINDS BURKISM NS CREDIBLE, BECAUSE HE FINDS THAT THE DOCUMENTS WERE SUPPRESSED AND HE FINDS THAT THE CONFIDENCE IN THE VERDICT IS UNDERMINED, SO HE NEEDED, IN ORDER TO MAKE THOSE FINDINGS, BURKINS WAS PART OF THAT WHOLE TESTIMONY, SO -- DID HE MAKE A FINDINGSING -- A FINDING AS TO BURKI INFORM S TESTIMONY, THE WHOLE THING IS A LIE, WHETHER THAT IS CREDIBLE, IN OTHER WORDS THE RECANTATION UNDER THE SPAZIANO SERIES OF CASES WHICH ARE USUALLY HIGHLY SUSPECT, WAS A CREDIBLE RECANTATION. WELL, WE WEREN'TRATION THE RECANTATION AS NEWLY-DISCOVERED. IT WAS RAISED AS THIS IS BRADY, IN TERMS OF THERE WAS THIS DEAL GOING ON, AND OF COURSE HE LIED. BUT THE GUY THAT SAYS IT IS A LIE, THEN A GUY THAT CAN JUST BE IMPEACHED? I MEAN, I GUESS IT JUST SEEMS A STRONG ADDITIONAL CLAIM. RIGHT. RIGHT. AND PART OF THE, PART OF WHAT WAS GOING ON WAS WHEN WE FILED OUR FINAL 3.850, WE HADN'T EVEN FOUND BURKINS YET, AND WHEN WE FOUND HIM AND INTERVIEWED HIM, WE ASKED THE TRIAL COURT CAN YOU OPEN UP THE BRADY CLAIM ON BURKINS? WE THINK WE HAVE EVIDENCE THAT WILL SUPPORT THE BRADY CLAIM SPECIFICALLY AS TO THE BUCK ANY. N. - - SPECIFICALLY AS TO THE BURKINS ISSUE, AND THE COURT ALLOWED BURKINS TO TESTIFY AS TO THE BRADY CLAIM. IN TERMS OF, I THINK THAT, YOU KNOW, THE STATE ATTORNEY TESTIFIED

11 AND BURKINS TESTIFIED THAT THERE WAS A DEAL IN PLACE. WHAT FLEMME BURKINS, THE WHOLE POINT ABOUT FLEMME BURKINS AND ALL OF THE DOCUMENTS WAS THAT FLEMMEBURKINS WAS A DESPERATE MAN AND WANTED TO GET OUT OF PRISON. THE TRIAL COUNSEL COULDN'T SHOW THAT SHE WAS GETTING SOME CONSIDERATION BECAUSE SHE WAS MISINFORMED ABOUT THE SENTENCING GUIDELINES AND NEVER HAD ANY INFORMATION TO CORRECT THAT THE. WHERE IS THE DEFENDANT, NOT THE DEFENDANT BUT WHERE IS PIERSON NOWA? AS OF WHAT I KNOW TODAY, HE -- NOW? AS OF WHAT I KNOW TODAY, IS HE IN THE HILLSBOROUGH COUNTY JAIL AWAITING TRIAL FOR ANOTHER CRIME. DID HE TESTIFY AT THE EVIDENTIARY HEARING? WHAT HAPPENED AT THE EVIDENTIARY HEARING WAS VERY STRANGE, BECAUSE THE STATE HAS TURNED AROUND AND EMBRACED DAVID PIERSON, IN ORDER TO MAINTAIN THIS CONVICTION, SO WHAT HAD HAPPENED WAS, WHEN WE WENT IN FOR CLOSING ARGUMENTS ON THE MONDAY, THEY TOLD US, THEY CAME AND PULLED US ASIDE AND SAID IT WOULD BE IN YOUR BEST INTEREST NOT TO GO FORWARD WITH THIS CASE TODAY. WE ARE GOING TO TAKE THIS CASE TO COMMITTEE AND POTENTIALLY WE CAN TAKE THE POSITION THAT HE SHOULD GET A NEW TRIAL. THAT WAS WHAT WAS RELAYED TO US SO WE AGREED TO A BRIEF CONTINUANCE. WE WENT BACK THE FRIDAY AND ALL OF A SUDDEN, THEY HAVE TOLD US THAT THEY HAVE INTERVIEWED DAVID PIERSON. HE HAS ADMITTED TO EVERYTHING ABOUT THE RAPE EXCEPT THAT IT WAS A RAPE. IS HE SAYING IT WAS CONSENTUAL, AND HE HAS DENIED THAT HE KILLED THE VICTIM. AND AT THAT POINT, THE JUDGE REFUSED TO CONTINUE THE HEARING. HOWEVER, HE DID ALLOW US TO INTRODUCE SOME OF THE EVIDENCE THAT CAME FROM THAT, FROM THEIR COMMUNICATIONS WITH PIERSON, SO THERE IS SOME EVIDENCE IN THE RECORD ABOUT WHERE PIERSON IS AND HIS SORT OF, BUT THAT EVIDENCE, HE WAS NEVER CROSS-EXAMINED. THE STATEMENT THEY TOOK WAS IN THEIR OFFICE, WITH THE STATE ATTORNEY, AND THE POLICE OFFICER, AND HE ESSENTIALLY CREDITS EVERYTHING THAT THE DEFENSE ATTORNEY WANTED TO DO AT THE TRIAL. HE JUST DENIES THAT IT WAS A RAPE, AND HE DENIES KILLING THE VICTIM. BUT -- BEFORE YOU SIT DOWN, LET ME, I KNOW YOU DIDN'T RAISE IT, BUT DO YOU HAVE ANY QUESTIONS IN RESPECT TO JUSTICE CANTERO'S INITIAL QUESTION ABOUT WHY THIS COURT HAS JURISDICTION? NEW YORK CITY YOUR HONOR. I MEAN, WE WOULD LIKE TO HAVE THIS CASE REMANDED AS QUICKLY AS POSSIBLE. OBVIOUSLY MR. HOLTON TO BE EXONERATED, BUT IN HUGGINS, I WILL JUST MENTION ON A MOTION FOR NEW TRIAL, WHERE THE CIRCUIT COURT VACATED THE CONVICTION AND DEATH SENTENCE, THAT DID COME TO THIS COURT ON DIRECT APPEAL FROM THAT. SO -- HUG I KNOW -- HUGGINS WAS A LITTLE DIFFERENT IN THAT THERE IS A STIPULATION HERE THAT THERE IS NO PENALTY PHASE. CORRECT. THAT THE DEATH PENALTY HAS BEEN SET ASIDE. THAT IS DIFFERENT THAN HUGGINS. CORRECT. LAST WEEK, YOUR HONOR, JUST TO WRAP-UP, MR. HOLTON HAD SPENT 16 YEARS ON DEATH ROW FOR A CRIME HE DIDN'T COMMIT, SO HE AND COUNSEL AND I WOULD LIKE TO REQUEST THAT THIS COURT IMMEDIATELY REMAND THE CASE TO AFERL THE COURT'S ORDER AND REMAND SO THAT HE CAN HAVE HIS NEW TRIAL. CHIEF JUSTICE: MR. MARSHAL, HOW MUCH TIME IS LEFT? OKAY.

12 THANK YOU. I WOULD JUST LIKE TO CORRECT A COUPLE OF INACCURACIES THERE, REGARDING THE INFORMATION THAT DEFENSE COUNSEL HAD REGARDING THE ALLEGED RAPE. CONTRARY TO WHAT MS. McDERMOTTITY JUST SAID, DEFENSE COUNSEL DID HAVE DONALD SMITH'S NAME AND WITH REGARD TO THAT IT WAS AT THE KAREN GRADY, SISTER'S DEPOSITION THAT HE TELLS THEM YES, MY SISTER TOLD ME ABOUT THE RAPE AND I GOT INFORMATION ABOUT THIS RAPE AND THAT THE PERSON NAMED PINE USED THE NAME DONALD SMITH. AND WAS ARRESTED FOR THAT. SO THEY DID HAVE THAT INFORMATION AND THEY, ALSO, HAD THE LOCATION OF WHERE THE RAPE TOOK PLACE. IT WAS THE PARK TWO MOTEL, AND THAT WAS IN, I BELIEVE IN THE INVESTIGATOR'S NOTES OR SOMEWHERE ELSE IN THE RECORD AND I BELIEVE MR. McCLAIN ARGUED THAT IN THE CLOSING ARGUMENTS -- WOULDN'T THAT BE A GOOD ALTERNATIVE INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM, WHICH IS HOW IT WAS PLED? ANOTHER COURT REJECTED THAT FOR VALID REASONS AS TO INEFFECTIVE ASSISTANCE OF COUNSEL. THEY WERE TRYING TO FIND THESE PEOPLE. THEY RAN OUT OF TIME AND RAISED A MOTION FOR A CONTINUANCE ON THE EVE OF TRIAL AND THE TRIAL COURT DENIED IT AND THAT WAS RAISED ON DIRECT APPEAL AND AFFIRMED, BUT DEFENSE COUNSNECESSARILY THIS CASE WAS WORKING VERY HARD TO FIND PEOPLE THAT DID NOT WANT TO BE FOUND, AND THERE IS MISSOURI INDICATION THAT, WE JUST APPARENTLY, PINE WAS JUST FOUND IN 20021, SO THESE -- IN 2001, SO THESE INDIVIDUALS WERE NOT OUT THERE WAIVING THEIR HANDS TO BE FOUND, BUT IN THIS CASE, AS JUSTICE ANSTEAD, I BELIEVE, INDICATED, ARE THAT DEFENSE -- IS THAT DEFENSE COUNSEL COULD HAVE GONE TO THE POLICE STATION AND SAID YOU HAD A RAPE AT PARK TWO MOTEL APPROXIMATELY A WEEK AGO BY A MAN ARE A TEST ED AND -- A MAN ARRESTED AND GIVEN THE NAME OF DONALD SMITH, AND I THINK IT IS A UNDUE BURDEN TO HAVE TO DISCLOSE A POLICE REPORT BY AN UNKNOWN VICTIM. DO YOU HAVE AN EXPRESS REQUIREMENT FOR BRADY? IT IS NOT AN EXPRESS REQUIREMENT UNDER THE BRADY COMPONENTS. THERE IS THREE ELEMENTS TO IT BUT THIS COURT HAS RECENTLY SAID THAT THERE IS A REQUIREMENT IF IT IS EQUALLY ACCESSIBLE TO BOTH DEFENSE COUNSEL AND THE STATE, THEN IT IS THOUGHT SUPPRESSED UNDER BRADY BECAUSE DEFENSE COUNSEL EITHER HAD IT OR COULD HAVE HAD IT, SO I THINK IT KIND OF GETS SUBSUMED UNDER THAT ELEMENT. WHAT ABOUT THE PART OF THE DONALD SMITH INVOLVEMENT AND THE STATEMENT THAT, WHATEVER, THAT, THE RECORD THAT THEY TOOK -- THEY FIRST ARGUED THAT, THE STATE'S FIRST ARGUMENT WITH REGARD TO THAT IS DEFENSE COUNSEL AT THE EVIDENTIARY HEARING SAID THAT SHE INITIALLY HAD THE REPORT. IT WAS IN HER FILE. SHE LATER KIND OF SPECULATED THAT I RELEASED THAT OFFICER FROM A DEPOSITION, SO I MUST NOT HAVE HAD A REPORT, BUT SHE INITIALLY SAID SHE DID HAVE IT, AND OFFICER LAWLESS, WHO WROTE THAT REPORT, WAS EXCUSED FROM HER DEPOSITION. HOWEVER, A SUPERVISOR WHO ALSO SIGNED OFF ON THE REPORT, BECAUSE DEPOSED, AND AT THAT DEPOSITION -- ARE YOU ARGUING THAT IT WAS GIVEN? YES. THE JUDGE FOUND IT WASN'T. YES. REASONABLY. AND THAT HAD DONALD SMITH, AND SO THIS FACT THAT THERE FOR YOU HAVE GOT A RAPE AND YOU HAVE GOT DONALD SMITH, WHO, IN ANOTHER DEPOSITION, IS BEING SAID IS THE PERSON

13 THAT DID THE RAPING, THEN REALLY, IT IS GOING, IT IS NOT EXACTLY, THE STATE HAS ALL THE ELEMENTS FOR IT TO KNOW THAT THERE IS THIS RAPIST, AND YOU WOULD THINK THAT THE STATE WOULD HAVE WANTED TO MAKE SURE THAT THAT RAPIST WAS NOT THE CULPRIT. WHAT THE STATE KNEW, AND THEY PUT IN THEIR MOTION FOR, I BELIEVE IT WAS A MOTION TO INCUR ADDITIONAL INVESTIGATOR COSTS SO THAT THEY COULD FIND PINE AND THEY DID PUT THE STATE ON NOTICE THAT THERE WAS IN ALLEGED RAPE AND THAT THE VICTIM HAD USED A FALSE NAME, BUT DEFENSE COUNSEL HAD MUCH MORE INFORMATION REGARDING THIS THAN THE STATE D THEY WERE THE ONES OUT THERE INVESTIGATING IT. WOULD YOU AGREE THAT, LET'S JUST TAKE THE BRADY ISSUE ASIDE, THAT IF THE DEFENSE COULD HAVE INTRODUCED INTO THE TRIAL, EVIDENCE THAT A WEEK BEFORE, SHE HAD BEEN ANALLY RAPED OR CLAIMED TO BE ANALLY RAPED THAT, IN THIS CASE SHE WAS ANALLY RAPED, THAT THE PERSON WHO WAS, THAT THE NAME WAS GIVEN AS DONALD SMITH BUT THAT A DONALD SMITH WAS RIGHT THERE, RIGHT AFTER THE MURDER, SAYING SOMEONE CHOKED KATRINA, THAT THAT WOULD BE PRETTY COMPELLING FOR A JURY TO BE HEREING. I THINK FIRST OFF THAT ASSUMES THAT ANY OF THAT WOULD HAVE BEEN ADMISSIBLE, AND I DON'T THINK THAT THAT WOULD HAVE BEEN ADMISSIBLE. I DON'T THINK THAT THEY WOULD HAVE BEEN ABLE TO GO IN AND POINT TO THIS OTHER RAPE AND GET IT INTO EVIDENCE. THE TRIAL COURT INDICATED HIS DESIRE NOT TO ADMIT THAT, WHEN THEY WERE TRYING TO ADMIT IT THROUGH A DEPOSITION OF ANOTHER WITNESS, SO I DON'T THINK IT WOULD BE ADMISSIBLE, FIRST OFF, BUT I DON'T THINK IT WOULD HAVE CHANGED THE OUTCOME IN ANY WAY IN THIS CASE, BECAUSE SHE SIGNED A WAIVER OF PROSECUTION ON THAT. THERE WAS NO RAPE. CHIEF JUSTICE: WE ARE GOING TO HAVE TO END ON THAT NOTE. THANK YOU, YOUR HONOR. CHIEF JUSTICE: WE THANK YOU ALL FOR YOUR PARTICIPATION. THE COURT WILL STAND IN RECESS, NOW, UNTIL TOMORROW MORNING. MARSHAL: PLEASE RISE.