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David Wyatt Jones v. State of Florida
SC04-2217 | SC05-1612
>> Marshal: PLEASE RISE. HEAR YE, HEAR YE, HEAR YE. THE SUPREME COURT OF FLORIDA NOW IN SESSION. ALL WHO HAVE CAUSE TO PLEA, DRAW NEAR, GIVE ATTENTION, AND YOU SHALL BE HEARD. GOD SAVE THESE UNITED STATES, THE GREAT STATE OF FLORIDA AND THIS HONORABLE COURT. LADIES AND GENTLEMEN, THE FLORIDA SUPREME COURT. PLEASE BE SEATED. >> GOOD MORNING, EVERYONE AND WELCOME TO THE FLORIDA SUPREME COURT AND THE ARGUMENTS FOR TUESDAY SEPTEMBER 19th. AS WE BEGIN THE PROCEEDING, I WOULD AGAIN REMIND ALL COUNSEL THAT THE COURT HAS STUDIED THOROUGHLY ALL OF THE FACTS THAT ARE INVOLVED AND UNLESS THERE'S A FACTUALLY SPECIFIC ISSUE PLEASE USE YOUR ARGUMENT TIMES, JUDICIOUSLY. THERE WILL BE BE A LOT OF QUESTIONS FROM THE PANEL. I WANT YOU TO WALK AKNOWING YOU MADE YOUR ARGUEMENT TO THE COURT. MR. BRODY, PLEASE PROCEED. THANK YOU, YOUR HONOR. >> MAY IT PLEASE THE COURT. I'M BORROWED -- I'M HARRY BRODY WE'RE HERE ON BEHALF OF WYATT JONES FROM THE COURT OF DUVAL COUNTY IN JACKSONVILLE. I WOULD LIKE TO FOCUS ON PRIMARILY FOCUS ON TWO ISSUES. INITIALLY I WOULD LIKE TO -- I WOULD LIKE TO CALL THE COURT'S ATTENTION TO OUR CLAIM THAT TRIAL COUNSEL WAS IN EFFECTIVE IN THE GUILT PHASE, MOST PARTICULARLY IN THE PENALTY PHASE OF THE TRIAL IN FAILING TO PROPERLY PREPARE AND PRESENT AN EXPERT WITNESS. AT THE EVIDENTIARY HEARING, WE PRESENTED A AN EXPERT DR. LI PERFECTMAN WITH WHOM THE COURT IS FAMILIAR. BUT WHO PROVIDED MUCH TESTIMONY, MUCH BACKGROUND THAT WOULD HAVE MADE A DIFFERENCE IN THIS CASE. THE JURY VERDICT WAS 9-3 -- >> BECAUSE A LOT OF YOUR POINTS ARE BOTH INTERRELATED TO THIS ISSUE. ARE YOU GOING TO FIRST ARGUE THE ISSUE AS TO MITIGATING EVIDENCE IN THE PENALTY PHASE. >> YES, YOUR HONESTOR. >> I THINK IN THE GUILT PHASE THAT COUNSEL WAS LOOKING AT THIS CASE AS A CASE WHERE THEY WERE GOING TO TRY TO SAVE MR. JONES' LIFE. EITHER BY SHOWING THAT THERE WAS NO PREMEDITATION IN GETTING A SECOND-DEGREE VERDICT OR BY HAVING THE JURY RECOMMEND LIFE. I THINK THAT WAS THEIR INFENCE AND I THINK FROM THE EVIDENCE THAT WAS A LOGICAL STRATEGY. THE -- THERE'S MUCH MITIGATION THAT WAS NOT PRESENTED AT TRIAL. THEY HAD AN EXPERT LINED UP AT TRIAL, BUT THAT EXPERT SIMPLY DIDN'T COME TO COURT. THAT ISSUE WAS DEALT WITH ON DIRECT APPEAL, BUT IT WAS A PSYCHIATRIST WHO WAS IN MEDICAL SCHOOL IN GAINESVILLE AND HE ULTIMATELY EITHER GOT COLD FEET OR HIS THE SCHOOL DIDN'T WANT HIM TO TESTIMONY -- TESTIFY. >> YOU ARE WANDERING A LITTLE BIT. >> YES, YOUR HONOR. >> WE NEED TO KNOW -- WE'RE FAMILIAR WITH WHAT DR. LIPMAN SAID AT THIS EVIDENTIARY HEARING. SPECIFICALLY WHAT ARE YOU SAYING WAS DEFICIENT ABOUT THE PERFORMANCE OF COUNSEL IN THE PENALTY PHASE REGARDING PRESENTATION OF EVIDENCE CONCERNING HIS COCAINE ADDICTION, HIS CHILDHOOD AND BE SPECIFIC. >> YES, YOUR HONOR. THE COUNSEL DID NOT PRESENT ANY EXPERT OR ANYBODY WITH RECORDS, WITH PAPERS, WITH ANY -- THEY DID NOT DO A SUFFICIENT BACKGROUND INVESTIGATION OF THE CLIENT SO THAT HE COULD PRESENT HIS FULL LIFE STORY. THEY BASICALLY JUST PUT ON HIS EX-WIFE AND SHE TESTIFIED IN 1986 HE GOT INVOLVED WITH COCAINE. WELL HIS INVOLVEMENT IN DRUGS -- THEY SHOULD HAVE PRESENTED AND COULD HAVE PRESENTED WITNESSES WHO WOULD HAVE TOLD ABOUT HIS GROWING UP IN AN ABUSIVE HOUSE WITH AN ALCOHOLIC DRUNKEN FATHER, HIS BEGINNING TO USE DRUGS AT 14 -- >> WELL, AGAIN, WASN'T HE THE YOUNGEST? >> HE WAS A YOUNG CHILD. >> THAT'S RIGHT. >> ALTHOUGH THERE WERE TIME WHEN HE RAN OUT OF THE HOUSE WITH A FATHER CHASING HIM WITH A SHOTGUN. I'M NOT SURE AT WHAT POINT THAT DOESN'T EFFECT. THAT'S STILL A PRETTY HORRIFIC THING TO HAVE HAPPEN. >> LET ME INTERRUPT JUST LIKE JUSTICE PARIENTE, BECAUSE, AGAIN I'VE LOST YOUR FOCUS HERE. YOU STARTED OUT BY TALKING ABOUT AN EXPERT WITNESS THAT YOU PRESENTED AT THE EVIDENTIARY HEARING. >> RIGHT. >> AND NOW YOU'VE SHIFTED TO PROBABLY WHAT WE WOULD REFER AS NONSTATUTORY, YOU KNOW, MITIGATION. HOW ABOUT ARTICULATING FOR US, FIRST OF ALL, WHAT ISSUE IS -- IT IS THAT YOU ARE ADDRESSING RIGHT NOW AND THEN GIVE US -- FLESH THAT OUT FOR US. >> OKAY. I'M ADDRESSING IN EFFECTIVE ASSISTANCE OF COUNSEL IN THE PENALTY PHASE AND TRYING TO SAY WHAT THE EVIDENCE THAT COUNSEL COULD AND SHOULD HAVE PRESENTED IS AND WHY IT WOULD HAVE MADE AN IMPACT ON THE JURY. YOUR CLAIMS -- YOUR CLAIM IS THAT COUNSEL DID AN INADEQUATE INVESTIGATION INTO THE BACKGROUND OF THIS CLIENT. >> THAT IS CORRECT. AND THEY DID AN INADEQUATE JOB OF PRESENTING HIS FULL STORY TO THE JURY. THERE'S MUCH MITIGATION THAT WAS AVAILABLE THAT THEY COULD HAVE PRESENTED AND SHOULD HAVE PRESENTED, BUT DIDN'T PRESENT. >> WHAT WAS THE EVIDENCE BY THE DEFENSE LAWYER, DID THE DEFENSE LAWYER TESTIFY? >> YES, THEY BOTH DID, YOUR HONOR. >> WHAT DID THE DEFENSE LAWYERS TESTIFY AS TO WHAT THEY DID DO? >> WELL, THEY UNDERSTOOD THE CASE WAS ABOUT COCAINE. AND THEY TESTIFIED THEY WANTED TO PRESENT AN EXPERT ON -- ON -- CANE ADDICTION. THEY WERE GOING TO PRESENT AN EXPERT WHO WAS AN EXPERT BY BEING AN ATTIC WHO HAD BECOME A DOCTOR. THIS GUY DIDN'T TESTIFY. WHAT ABOUT WITH REFERENCE TO INVESTIGATING THE DEFENDANT'S BACKGROUND AND PRESENTING ANY MITIGATING EVIDENCE CONCERNING THE DEFENDANT'S BACKGROUND THAT YOU WERE TALKING ABOUT? >> THEY PUT ON HIS MOTHER AND THEY PUT ON HIS EX-WIFE. THE EX-WIFE WHO IS ALSO AN ATTIC AND ONE OF THE CHARACTERS IN THIS -- THOSE WERE THE TWO MAIN WITNESSES ON THE BACKGROUND. THEY DIDN'T PUT ANYTHING FOR INSTANCE ABOUT HIS MILITARY SERVICE. >> DID THEY TOUCH ON THE DRUG USE AND IF SO TO WHAT EXTENT AND WHERE DO YOU THINK THAT THEY FELL SHORT IN THAT AREA? >> THEY FELL SHORT IN THE QUALITY OF THE TESTIMONY THEY PRESENTED. YOU KNOW, THERE'S TESTIMONY OF DRUG USE, BUT THIS GUY WAS, YOU KNOW WAS TRULY A VERY TROUBLED ATTIC WITH AN UNDERLYING SCHIZOPHRENIC CONDITION. HE WAS A VERY SICK MAN WHO HAD BEEN SICK FOR A LONG TIME. IT WASN'T A CASE JUST OF THE COCAINE. THE COCAINE IS WHAT PROBLEM -- WHAT CAUSED HIM TO BECOME ALMOST ANIMAL-LIKE. BUT THEY REALLY -- THEY DID NOT SHOW THE QUALITY, THE DEGREE OF THE OF HIS CONDITION. >> DID THEY HAVE MENTAL HEALTH EXPERT EVALUATE HIM? >> THEY DID. THEY EVALUATED HIM PRIMARILY FOR COMPETENCY. TO SEE IF HE WAS COMPETENT TO STAND TRIAL. >> IT WAS ONLY A COMPETENCY EVALUATION? >> THAT'S WHAT DOCTOR CROP WAS HIRED TO PROVIDE. THAT'S WHAT HE WOULD HAVE TESTIFIED ABOUT. THERE WAS NO TESTIMONY THAT DR. CROP DID A MITIGATION -- WAS GIVEN BACKGROUND INFORMATION. IN FACT, I THINK THE ATTORNEY TESTIFIED THEY DIDN'T PROVIDE BACKGROUND RECORDS TO THE DOCTOR. >> THEN WHAT WOULD HAVE BEEN THE QUOTE DECIDEDLY HELPFUL THING THAT DR. CROP HE WOULD TESTIFY TO IF CALLED? >> THAT DIDN'T COME OUT. IT WAS PROBABLY THE DRUG USE AND DRUG ADDICTION AND SOMETIMES COUNSEL THINKS, WELL, WE DON'T WANT TO SHOW A JURY THE DEPTH OF THE ADDICTION. IN THIS CASE IT WAS ABSOLUTELY NECESSARY TO EDUCATE THE JURY ON THIS CLIENT'S DRUG HISTORY. THERE WAS NO POINT IN TRYING TO MAKE IT SEEM LIKE HE WAS A -- JUST A MODERATE DRUG USER OF SOME KIND AND THAT -- THIS MAN'S LIFE WAS DOMINATED BY DRUGS FOR A YEAR PRIOR TO THE MURDER HE DID DRUGS EVERY DAY ALL DAY FOR A YEAR, DID COCAINE. JUSTICE QUINCE HAD A QUESTION. >> JUST TELL US WHAT YOU HAVE NOW THAT COUNSEL COULD HAVE FOUND AT THAT POINT AND DID NOT PRESENT. >> WE HAVE A -- WE HAVE EVIDENCE THAT HE HE HAD A SCHIZOPHRENIC LIKE CONDITION, THAT HE HAD, HAD IT SINCE HE WAS A CHILD, THAT HIS BEHAVIOR WAS -- THE DOCTOR DESCRIBED IT AS RAT-LIKE AT THE ATM MACHINE WHEN HE WAS USE THING CARD REPEATEDLY AND THE DOCTOR EQUATED THIS TO A RAT TRYING TO GET COCAINE IN AN EXPERIMENT IN A CONTROLLED EXPERIMENT. AND THAT'S VERY IMPORTANT FOR THE JURY TO UNDERSTAND, THAT THIS MAN WAS NOT -- ONE, HE WAS NOT INTERESTED IN ANY RAPE OR SEXUAL ACTIVITY WITH THE CLIENT, WHICH IS ANOTHER THING THE PROSECUTOR WAS TRYING TO IMPLY TO INFLAME THE JURY, BUT THIS MAN WAS RUNNING AROUND LIKE A RAT TRYING TO GET MONEY TO GET COCAINE. AND IN ORDER TO SHOW THE DEPTH OF THAT ADDICTION AND PROBLEM YOU NEEDED THIS TESTIMONY, SO WE COULD HAVE PROVIDED TESTIMONY TO EXPLAIN THAT, THAT HE HAD A SCHIZOPHRENIC CONDITION, THAT HE HAD HEARD -- HE HAD, HAD A BREAK DOWN. >> WHERE WAS COUNSEL SUPPOSED TO GET TKH INFORMATION THAT HE HAD A SCHIZOPHRENIC CONDITION. DID THE MENTAL HEALTH EXPERTS THAT HE HIRED TELL HIM THAT THIS DEFENDANT HAD A SCHIZOPHRENIC CONDITION? >> WELL, THERE WERE -- THE DEFENDANT HAD A RECORD. HE HAD BEEN FOUND INCOMPETENT IN 1986 TO STAND TRIAL AND HE WAS INCOMPETENT FOR SOME TIME BECAUSE HE WAS -- HAVING THIS SCHIZOPHRENIC-LIKE CONDITION. SO THERE WERE RECORDS -- >> SO THERE WERE RECORDS THAT RELATED THAT HE WAS SCHIZOPHRENIC. >> YES. YES -- >> WHAT RECORDS WERE THOSE? >> THEY WERE FROM THE COURT FROM THE PREVIOUS DOCTORS. DR. MILLER'S RECORD. >> THERE WAS RECORD OF DR. MILLER WHO -- THAT COUNSEL FAILED TO OBTAIN. >> AND FAILED TO PROVIDE. >> DID THEY DIAGNOSE THE DEFENDANT WITH SCHIZOPHRENIA. THEY FOUND HIM INCOMPETENT TO STAND TRIAL AND THEY PUT HIM ON ANTI-DEPRESSANTS AND I'VE LISTED THE EXACT MEDICAL DIAGNOSIS. IT'S PSYCHOSIS SPECTRUM DISORDER. >> THIS COMES TO US AFTER AN EVIDENTIARY HEARING. >> YES, YOUR HONOR. >> IN A 60-PAGE ORDER THE TRIAL COURT FINDS THIS. AND I JUST WANTED TO ASK YOU TO COMMENT ON OUR STANDARD REVIEW ON THESE FINDING. MR. BOZELL TESTIFIED AT THE EVIDENTIARY HEARING THAT COUNSEL SPENT A LOT OF TIME RESEARCHING THE DEFENDANT'S BACKGROUND. HAVING DEFENDANT EXAMINE AND TRYING TO COME UP WITH EVIDENCE REGARDING HIS MENTAL HEALTH. HE TESTIFIED THAT A THRUST OF THE DEFENDANT -- DEFENSES TRIAL STRATEGY AND ESPECIALLY IN THE PENALTY PHASE WAS TO SHOW THAT THE DEFENDANT WAS O COCAINE ATING AND THE INTENT ELEMENT WAS MUTED BY THIS ADDICTION. ANOTHER DEFENSE LAWYER TESTIFIED THE STRATEGY WAS TO SHOW HE WAS A DRUG ATTIC. AND TESTIFIED THAT THEY PRESENTED AN EXPERT WHO TESTIFIED CONCERNING HOW COCAINE AFFECTS A PERSON'S BEHAVIOR AND HOW AN ADDICTION TO COCAINE ALSO EFFECTS IT. HE THEN GOES ON AND SAYS IF YOU HAVE DONE A REASONABLE MENTAL HEALTH INVESTIGATION THE PRESENTATION OF WHAT YOU'VE DONE ISN'T RENDER INEFFECTIVE JUST BECAUSE YOU HAVE ANOTHER EXPERT. HOW -- THAT'S MY BIG PROBLEM HERE. IT LOOKS TO ME THAT THERE'S A TWO-EDGED SWORD WITH SOME OF THE TESTIMONY THAT WAS PUT ON, ESPECIALLY THE LAY TESTIMONY, AND YOU DO HAVE ANOTHER EXPERT. BUT HOW DO WE FIND A STRICTLAND VIOLATION BASED ON THESE FACTS AND THE TRIAL COURT'S FINDING? >> WELL, THE COURT -- IT'S NOT ENOUGH JUST TO PRESENT IN ANY CASE WHERE THE DRUGS ARE INVOLVED TO PRESENT SOMEBODY THAT JUST TESTIFIES TO THE DEFENDANT HAD A DRUG PROBLEM. DRUGS WERE THE CAUSE OF THIS. THERE ARE MEDICAL DIAGNOSES THAT REQUIRE FOR THE JURY TO REALLY UNDERSTAND WHAT COULD NOT CAUSE A MAN TO KILL SOMEBODY, BUT PERMIT A MAN TO BECOME SO ANIMAL-LIKE, SUCH THAT HE COULD BE INVOLVED IN SOMETHING LIKE THIS. FOR THE LAYPERSON, FOR A JURY YES I TO UNDERSTAND THAT REQUIRES PROPER TESTIMONY -- >> IT ISN'T AS IF THEY DIDN'T TRY. DR. CROP WHO WE HEAR OVER AND OVER DID RETAIN, DID AN INVESTIGATION AND IN CONSULTATION WITH THE DEFENSE LAWYERS THEY DECIDED IT WOULD BE MORE DAMAGING TO PRESENT DR. CROP THAN NOT. IT'S NOT AS IF THEY DIDN'T -- THEY TRIED SEVERAL DIFFERENT AVENUES ON THIS. >> WELL, DR. CROP -- HE WASN'T RETAINED JUST FOR PURPOSES OF COMPETENCIES. HE WAS NOT RETAINED FOR PURPOSES OF THE MITIGATION PART OF THE CASE. AND AS I UNDERSTAND IT THE HIS TESTIMONY WOULD HAVE -- IT'S REALLY NOT A RECORD OF WHAT HE WOULD HAVE SAID THAT WOULD HAVE BEEN SO HARMFUL. I DON'T THINK THIS IS A CASE WHERE -- I THINK THEY NEEDED TO DO MORE TO EDUCATE THE JURY IN THIS CASE. THERE WAS LOT OUT THERE THEY COULD HAVE PRESENTED THAT THE JURY WAS PERCEPTIVE I THINK TO WHAT THEY WERE SAYING. I JUST DON'T BELIEVE THEY WENT FAR ENOUGH. >> YOU ARE MOVING INTO YOUR REBUTTAL. I WILL -- >> IF YOU NEED TO TOUCH ON ANY OTHER POINTS -- >> NO. I WOULD DIRECT THE COURT TO OUR ISSUE REGARDING THE PROSECUTORS. I THINK THAT THE PROSECUTOR HAD A STRATEGY TO MAKE A RAPE CASE OUT OF THIS TO OBTAIN THE DEATH PENALTY BY INSIN YOU WAITING THERE WAS A RAPE WHEN THERE WAS NO EVIDENCE OF ONE. THE HEARING COURT ACTUALLY FINALLY FOUND AFTER ALL OF THIS, I BELIEVE -- THE HEARING COURT FOUND THAT THERE HAD BEEN -- THERE WAS ENOUGH EVIDENCE. AND I THINK THAT THE PROSECUTOR DELIBERATELY USED THAT TACTIC TO INFLAME THE JURY. OKAY. STATE'S RESPONSE. >> GOOD MORNING, YOUR HONOR. MADE IT PLEASE THE COURT. CASSANDRA DOLGIN ON BEHALF OF THE STATE OF FLORIDA. LET ME VERY BRIEFLY ADDRESS -- >> IF YOU WOULD PLEASE PULL THE MICROPHONE TOWARD YOU. >> LET ME BRIEFLY ADDRESS THE ISSUE THAT THE SECOND ISSUE AS TO COUNSEL BEING INEFFECTIVE FOR NOT OBJECTING TO THE STATE'S REFERENCE TO THE VICTIM'S BODY CONDITION. THAT WAS PRECISELY WHAT THE PROSECUTOR DOES POINTING OUT WHAT CONDITION MRS. McRAE WAS FOUND IN. THERE WAS NOTHING WRONG WITH THE PROSECUTOR DOING THAT. THE MEDICAL EXAMINER TESTIFIED THAT HE CAME OUT TO THE SCENE. I WILL RELY UPON MY BRIEF FOR THE REST OF THE RATIONALE AS TO WHY THAT WAS PROPER. >> THE CLAIM OF INEFFECTIVENESS FOR NOT PUTTING ON MORE MITIGATION. IS JUSTICE PAEUFRPBT POINTED OUT THE MOTHER DID -- PARIENTE POINTED OUT THE MOTHER DID TESTIFY THE DEFENDANT WAS VERY YOUNG WHEN SHE DIVORCED HER HUSBAND. HE WAS ACTUALLY UNDER THE AGE OF TWO. THE DEFENDANT PUT ON HIS BROTHER TO TESTIFY AND HIS BROTHER WAS SUBSTANTIALLY OLDER, 5 OR SIX YEARS OLDER AND HE'S THE ONE THAT SAID, REMEMBER THE ABUSE, THERE WAS NO TESTIMONY FROM THE DEFENDANT. JUST SO WE CLARIFY. IN OTHER WORDS AT THE EVIDENTIARY HEARING THEY PUT ON THE BROTHER. BUT THEY DIDN'T PUT ON THE BROTHER AT THE TIME OF TRIAL. >> THAT'S CORRECT. >> AND HE WAS THE ONE THAT TESTIFIED THERE WAS ONE OR TWO TIMES THAT WE HAD RUN OUT OF THE HOUSE BECAUSE MY FATHER HAD THE GUN AND AT THE TIME AND THERE WAS NO TESTIMONY TO THE CONTRARY THAT AT THE TIME THIS WAS PRIOR TO THE DEFENDANT'S MOTHER HAVING SEPARATED FROM THE HUSBAND AND THUS THE DEFENDANT WOULD HAVE BEEN UNDER THE AGE OF TWO. >> THE -- DID TRIAL COUNSEL AT THE PENALTY PHASE TALK TO BROTHER ABOUT THE LIFESTYLE? WE KNOW HE CALLED THE MOTHER. BUT WHAT ABOUT THE BROTHER? WHY WASN'T HE BROUGHT IN AS A WITNESS? >> THERE WAS TESTIMONY DURING THE EVIDENTIARY HEARING THAT COUNSEL -- ACCORDING TO THE BROTHER COUNSEL DIDN'T TALK TO HIM AND IT WAS NOT BROUGHT OUT DURING THE EVIDENTIARY HEARING AS TO WHY DEFENSE COUNSEL DIDN'T PUT HIM ON. COUNSEL DID PUT ON THE MOTHER DURING THE PENALTY PHASE AND PUT HER ON DURING THE EVIDENTIARY HEARING AND SHE TESTIFIED TO LESS INFORMATION ABOUT THE FAMILY BACKGROUND DURING THE EVIDENTIARY HEARING AS SHE DID DURING THE PENALTY PHASE. I WANT TO BRING TO THE COURT'S ATTENTION IN ADDITION TO DR. CROP I'M NOT SURE HE WAS JUST FOR THE COMPETENCY DETERMINATION. HE WAS A CONFIDENTIAL WITNESS. >> DO WE KNOW WHAT IT IS THAT DOCTOR -- DR. CROP WAS CAUTIONING THE TKWFT ATTORNEY ABOUT. HE DID HAVE SOME INFORMATION. ABOUT THE DEFENDANT'S MENTAL STATUS. SO WHAT WAS IT THAT HE GS AFRAID WOULD COME OUT IF HE CALLED HIM AS A WITNESS? >> AS A MATTER OF RECORD THAT. WE DON'T HAVE THAT. THE DEFENSE DIDN'T CALL DR. CROP. IT WAS DEFENSE COUNSEL ASKED ABOUT HIM. >> HE TESTIFIED IT WAS BAD INFORMATION. WHAT I WOULD BRING TO THE COURT'S ATTENTION. THERE WERE TWO EXPERTS THAT THE TRIAL COURT HAD APPOINTED, DR. MEYERS AND DR. BERNARD. AND WITHIN THEIR -- AND I THINK IT'S REASONABLE TO TAKE FROM THEIR REPORTS THAT DR. CROP WOULD HAVE -- THE BAD INFORMATION WAS THAT BOTH DR. BERNARD AND DR. MEYERS FOUND THAT THE DEFENDANT WAS ANTI-SOCIAL PERSONALITY DISORDER. AND THAT INFORMATION -- IT'S INCORRECT TO SAY THAT THE -- THESE EXPERTS DIDN'T HAVE THE INFORMATION THEY SET OUT THE RECORDS THEY HAD. NOW THERE IS NOT A REFERENCE TO THE MILITARY RECORDS. BUT THEY DID A FULL PSYCHIATRIC EVALUATION OF MR. JONES. AND I WOULD ALSO POINT OUT THAT WITHIN -- >> WHAT WAS IN THE MILITARY RECORD THAT WOULD HAVE BEEN HELPFUL TO THE DEFENDANT? >> ACTUALLY THOSE MILITARY RECORDS WERE NOT PUT INTO EVIDENCE DURING THE EVIDENTIARY HEARING SO I HAVE NOT SEEN THEM. >> OKAY. WHEN MR. SPEAKER BROADY SAID THESE WOULD HAVE BEEN HELPFUL MITIGATION, WE CAN'T ESTABLISH THAT. >> I THINK DR. LICHTMAN TESTIFIED THERE WAS SOME REFERENCE TO THE DEFENDANT'S MENTAL CONDITION. I DON'T REMEMBER EXACTLY WHAT AND DR. MEYERS BASED UPON HIS RECEIVING A SELF-REPORT FROM THE DEFENDANT THAT HIS DEFENDANT HAD TOLD HIM HE RECEIVED SOME KIND OF DISCHARGE THAT SOMETHING HAD HAPPENED BUT HE DIDN'T KNOW WHY. DR. LICHTMAN IS THE ONLY ONE THAT HAS FOUND THAT MR. JONES HAS SOME SORT OF SCHIZOPHRENIC DISORDER. HE SAID IT WASN'T SCHIZOPHRENIA. BOTH DR. MEYER AND DR. BERNARD SAID, THAT, NO HE DOESN'T HAVE A MAJOR PSYCHIATRIC DISORDER. HE IS ANTISOCIAL PERSONALITY. I THINK DR. BERNARD SAID IT WAS ANTISOCIAL PERSONALITY. >> WHO IS DR. MILLER THAT -- >> DR. MILLER WAS THE PSYCHIATRIST THAT HAD EVALUATED MR. JONES. HE HAD BEEN CHARGED IN A MURDER IN 1986. AND IT'S INCORRECT TO SAY THAT DEFENSE COUNSEL DIDN'T HAVE HIS RECORD. DEFENSE COUNSEL SPECIFICALLY TESTIFIED DURING THE EVIDENTIARY HEARING THAT THEY HAD BEEN IN CONTACT WITH DR. MILLER. HAD SPOKEN WITH HIM IN FACT DURING THE TRIAL THEY EVEN TRIED TO BRING IN DR. MILLER'S REPORT AND THE STATE OBJECTED. THIS COURT LATER AFFIRMED THE COURT'S DECISION NOT LETTING THAT REPORT IN. SETS IT'S INACCURATE TO SAY TRIAL COUNSEL DIDN'T HAVE DR. MILLER'S REPORT. >> DID DR. MILLER DIAGNOSE HIM WITH SCHIZOPHRENIA. I HAVEN'T SEEN THE REPORT. I DON'T BELIEVE SO. THE DEFENDANT WAS FOUND INCOMPETENT TO STAND TRIAL FOR THE 1986 MURDER. IT'S NOT A MATTER OF RECORD FOR HOW LONG HE SUBSEQUENTLY WAS FOUND COMPETENT TO STAND TRIAL FOR THE 1986 MURDER. BOTH DR. BERNARD AND DR. MEYERS FOUND HE WAS COMPETENT TO STAND TRIAL HERE. ALSO WITHIN THE REPORT THAT -- >> WAS HE UNDER ANY MEDICATION? >> HE WAS -- MR. JONES WAS APPARENTLY ON MEDICATION. THE EVIDENTIARY HEARING, NO EVIDENCE WAS PUT ON AS TO WHAT HE WAS ON. WHAT WE KNOW THERE WAS A MOTION BY COUNSEL IN 1996 ASKING THAT AN INSTRUCTION BE GIVEN TO THE JURY THAT THE DEFENDANT WAS ON MEDICATION AND AT THAT TIME TRIAL COUNSEL SET OUT WHAT MEDICATION THEIR CLIENT WAS ON. BUT COME 1997 WHEN THE DEFENDANT A YEAR AND TWO MONTHS LATER WHEN HE GOES ON TRIAL THERE'S NO EVIDENCE AS TO WHETHER HE WAS STILL ON MEDICATION AND AT THE EVIDENTIARY HEARING NO EVIDENCE WAS PUT ON AS TO WHETHER HE WAS ON MEDICATION OR HOW MUCH. I WOULD ALSO POINT OUT THAT BOTH DR. MEYERS AND DR. BERNARD WERE AWARE THAT THE DEFENDANT HAS SAID TO ANOTHER INMATE THAT HE EXPRESSED CONCERN ABOUT RECEIVING THE DEATH PENALTY AND THIS IS ON PAGE 49 OF THE RECORD. IT'S PART OF DR. MEYER'S PSYCHIATRIC EVALUATION. AND HE HAS SAID THAT THIS IS A STATEMENT BY MR. HUTO AND HE SAID THE DEFENDANT WAS CONCERNED ABOUT RECEIVING THE DEATH PENALTY AND WONDERED HOW HE COULD AVOID IT. HE REPORTED TO MR. HUTO THAT HE NEEDED TO GET ON MEDICATION AND COULD GO TO THE SECOND FLOOR WHICH WAS THE MEDICAL SECTION OF THE JAIL AND HE ASKED MR. HUTO IF HE THOUGHT THAT WOULD HELP HIM USE AN INSANITY DEFENSE. THIS INFORMATION IS IN THE PSYCHIATRIC REPORT AND COUNSEL IS CLEARLY AWARE OF IT AND I WOULD SUSPECT THAT HAD DR. CROP TESTIFIED THIS INFORMATION CERTAINLY WOULD HAVE BEEN ABLE TO BRING US IN AND AS WELL AS THE FACT THE ANTISOCIAL PERSONALITY DISORDER INFORMATION. >> QUESTION ON HIS MENTAL STATE AT THE TIME OF THE MURDER. A STATUTORY MITIGATOR THAT HE WAS UNDER THE INFLUENCE OF DRUGS AT THE TIME OR IMPAIRED WOULD HAVE BEEN POWERFUL. OUR DIRECT APPEAL OPINION SAYS FURTHER THERE WAS NO ASSERTION THAT JONES WAS HIGH ON CRACK AT THE TIME OF THE MURDER. COULD YOU CLARIFY WHETHER THAT'S CORRECT OR INCORRECT STATEMENT AND WHETHER THERE IS SOME DEFICIENCY IN THAT REGARD AS TO HIS MENTAL STATE AT THE TIME OF THE MURDER. >> THERE WAS NO ABSOLUTELY EVIDENCE THAT THE DEFENDANT WAS ON CRACK AT THE TIME OF THE MURDER. THERE HAD BEEN EVIDENCE PRESENTED THAT THE DEFENDANT WAS ANXIOUS AT THE TIME HE WAS OBSERVED IN THIS BAR AND THE BAR AND THER HAD TESTIFIED DURING THE GUILT PHASE THAT SHE HAD SEEN THE DEFENDANT. HE WAS VERY ANXIOUS, ACTING VERY ANXIOUS, HE WAS NOT DRINKING AT THE TIME. HE JUST HAD WATER. HE ALSO THEN LATER SEEN AT THE WALLGREENS THAT THE VICTIM SUBSEQUENTLY ABDUCTED FROM THAT PARKING LOT. WE KNOW HE WAS ABLE TO DRIVE. HE WAS ABLE TO GO INTO THE WALLGREENS. THERE WAS NO EVIDENCE PUT ON AND THERE WAS NO EVIDENCE PUT ON DURING THE EVIDENTIARY HEARING AS WELL THAT HE WAS UNDER THE INFLUENCE. >> BUT THE TRIAL COURT DID FIND AND -- MAYBE MR. BRODY CAN ADDRESS THIS -- THAT FOUND THAT THE MITIGATING CIRCUMSTANCE THAT HE WAS A CRACK ATTIC THE FELONY WAS COMMITTED WHILE HE WAS UNDER THE INFLUENCE AND HIS ADDICTION IMPAIRED HIS ABILITY TO CONFORM HIS BEHAVIOR. TO THE REQUIREMENTS OF THE LAW. I'M TRYING TO FIGURE OUT HOW -- THERE MUST HAVE BEEN -- GOING BACK TO THE ORIGINAL TRIAL, THE TRIAL COURT TOOK THE EXTESTIMONY THAT WAS PRESENTED ABOUT HIS COMPULSION TO OBTAIN MONEY FOR COCAINE AND DID TRANSLATE IT INTO STATUTORY MIT GARTH OMIT GATORS; CORRECT? >> THERE WAS EVIDENCE HE HAD BEEN USING CRACK COCAINE EARLY YESER IN THE DAY. >> THAT ALL CAME OUT AT THE ORIGINAL TRIAL. >> ABSOLUTELY. >> WHEN THE TRIAL JUDGE FOUND THE STATUTORY MITIGATOR AND GAVE THEM SOME WEIGHT. >> ABSOLUTELY. DURING THE EVIDENTIARY HEARING IT WAS CLEAR THAT AT FIRST THE WITNESSES WERE BEING QUESTIONED AS THOUGH THERE HAD BEEN NO FINDING TO THE STATUTORY MENTAL MIT GOTORS AND FROM THE SENTENCING ORDER CLEARLY THE TRIAL COURT DID FIND THAT BASICALLY THIS CLAIM OF INEFFECTIVENESS IS -- >> LET ME ASK YOU THIS ABOUT THE DOCTORS HERE. THERE SEEMS TO BE SOME SUGGESTION THAT -- WELL, THERE WAS A DOCTOR WHO WAS SUPPOSED TO TESTIFY ABOUT THE EFFECTS OF ADDICTION AND USE OF DRUGS AT THE PENALTY PHASE, BUT HE DID NOT SHOW UP. >> THAT IS INCORRECT. >> DREW EDWARDS A DRUG COUNSELOR CAME AND HE TESTIFIED AS TO THE EFFECTS OF COCAINE ADDICTION ON THE BODY, ON THE MIND, FROM WHAT I RECALL HE HAD CHARTS WHO DID NOT TESTIFY WAS A GENTLEMAN. >> DREW EDWARDS TESTIFIED AT THE -- >> PENALTY PHASE. >> PENALTY PHASE. >> AND HE TESTIFIED AS TO THE EFFECTS OF CRACK COCAINE. THE INDIVIDUAL THAT THE DEFENSE HAS REFERRED TO THAT DID NOT TESTIFY IS GENTLEMAN BY THE NAME OF ETON, I BELIEVE, AND HE WAS AT THE TIME STUDYING AT THE UNIVERSITY OF FLORIDA TRIAL COUNSEL'S TESTIMONY DURING THE EVIDENTIARY HEARING WAS THEY WERE NOT GOING TO PUT HIM ON AS AN EXPERT. THEY WERE GOING TO PUT HIM TO TESTIFY AS TO HIS PERSONAL EXPERIENCES THAT HE HAD BEEN A CRACK ATTIC, AND THE DEFENSE HAD WANTED TO SHOW THAT EVEN SOMEONE WHO IS EDUCATED COULD FALL UNDER THE INFLUENCES OF CRACK ADDICTION. THIS -- THIS CLAIM OF INEFFECTIVENESS REALLY PERTAIN -- THAT COUNSEL DIDN'T DO IT THE WAY COUNSEL WOULD HERE. >> NO FURTHER QUESTIONS WE WOULD ASK THE COURT AFFIRM THE JUDGE. THANK YOU. THANK YOU VERY MUCH. >> REBUTTAL? >> MR. BRODY PLEASE PULL THE MICROPHONE DOWN. >> THANK YOU. THE FACT IS THE PROBLEM IS THEY DID NOT -- COUNSEL DID NOT PUT ON THE MEDICAL EXPERT AT THE TRIAL FOR THE JURY TO HEAR. THERE -- IN THIS CASE IT WAS VERY IMPORTANT. IT WAS THE WHOLE CASE. >> WHAT ABOUT THE TESTIMONY OF DREW AA -- EDWARDS? >> RIGHT. >> WAS HE DESIGNATED AN EXPERT ON THIS ISSUE OF ADDICTION AND USE OF DRUGS? >> HE WAS A DRUG COUNSELOR. HIS SCOPE OF WHATEVER EXPERTISE HE HAD WAS STRICTLY THAT HE HAD BEEN AN ATTIC AND COULD TESTIFY WHAT THE DRUG DID TO HIM. HE WAS NOT COMPETENT -- >> I THOUGHT THAT WAS THIS ETO NO N PERSON THAT DIDN'T TESTIFY WHO WAS GOING TO TESTIFY ABOUT HIS USE OF DRUGS AND THE USE ON HIM. BUT I THOUGHT THAT THE OTHER PERSON WHO DID TESTIFY WAS MORE GENERAL ABOUT THE USE OF DRUGS. >> WHATEVER THE GENERALITY DIDN'T EXTENT TO ANY MEDICAL EXPERTISE WHATSOEVER OR ANY KNOWLEDGE OF THE FARM COLOGICAL IMPACT. HE COULDN'T TESTIFY TO MR. JONES WAS, IN FACT, UNDER COCAINE PSYCHOSIS AT THE TIME OF THE KIDNAPPING. LIPMAN COULD HAVE PROVIDED THAT TESTIMONY TO THE JURY. THAT IN FACT HE WAS UNDER AND IN FACT. >> THIS WAS BASED ON HIS TESTIMONY -- WOULD HAVE BEEN BASED ON HIS LONG-TERM USE OF COCAINE OR WAS THERE EVIDENCE THAT HE WAS USING OR HAD USED COCAINE AROUND THE TIME THAT THE MURDER AND KIDNAPPING ACTUALLY OCCURRED? >> WELL, DR. LIPMAN TESTIFIED THAT, YES, HE WAS UNDER COCAINE PSYCHOSIS AT THE TIME. >> MEANING -- BECAUSE OF HIS LONG-TERM USE -- >> RIGHT, AND THE LONG-TERM USE MEANING LITERALLY THAT DAY. THE COCAINE USE HAD BEEN REPEATED AND WAS BEING REPEATED CONSTANTLY THROUGHOUT THIS TIME. IT WAS -- HE WAS UNDER THE INFLUENCE, I THINK. IT'S SAFE TO SAY AT ALL TIMES HE WAS -- DURING THIS PERIOD HE WAS ON A COCAINE BINGE. >> DO WE HAVE ANY TESTIMONY IN THE RECORD ABOUT WHETHER OR NOT HE HAD A JOB OR ANY OF THOSE KINDS OF THINGS? >> OH, YES. THEY HAD BEEN SHOPLIFTING FOR YEARS. SHARE LIFE CONSISTED OF STEALING TELEVISIONS, SELLING THPBD AND BUYING CRACK. THAT'S ALL THEY DID. THEY DIDN'T FUNCTION IN ANY OTHER WAY IN THE SOCIETY. THEY SLEPT IN MOTELS WHEN THEY COULD AFFORD IT AND JUST DID CRACK ALL OF THE TIME. IT WAS NOT -- THIS MAN -- IT WAS NOT IN ANY WAY ANY KIND OF NORMAL EXISTENCE. THAT WAS DEVIATED FROM. IT WAS FILL-SCALE -- IT WAS FULL SCALE. BUT MR. HUTO WHO THE STATE MENTIONED WAS AN INMATE AND THE STATE HAS CERTAINLY NOT -- WE PRESENTED A COUPLE OF INMATES AND ONE WHO TALKED ABOUT MR. JONES' DRUG USE IN THE EARLY 80s AND HOW BAD OF AN ATTIC HE WAS THEN. AND ALSO ONE WHO SAW MR. JONES WHEN HE WAS ARRESTED AND SAID HE WAS STRUNG OUT AT THE TIME HE WAS BROUGHT IN. THIS MAN WHO WAS ALSO AN ATTIC. I THINK THE RECORD IS CLEAR THAT MR. JONES IS A HORRIBLE ATTIC. HE HAD HORRIBLE PROBLEMS WITH DRUGS AND THESE KEEPS ARE TERRIBLE. BUT THE JURY WAS NOT TOLD THE FULL SCOPE OF THE DRUG USE AND I HOPE THE COURT IS NOT TRYING TO SET SORT OF AN AUTOMATIC IF YOU HIRE -- HAVE SOMEBODY TALK ABOUT DRUG A LITTLE BIT AND THAT WILL SATISFY THE STRICTLAND TEST. YOU GET A DRUG COUNSELOR, THIS OR THAT. THIS REQUIRED THE RECORDS BE GIVEN TO AN EXPERT ON COCAINE AND THE JURY NEEDED TO BE -- IF THERE WAS ANY WAY TO SAVE THIS MAN'S LIFE THE JURY NEEDED TO UNDERSTAND WHAT EXTREME USE OF COCAINE BEYOND ANY OF OUR IMAGINATIONS, REALLY WHAT THAT COULD DO TO A PERSON AND HOW A PERSON COULD END UP BEING AN ANIMAL, A RAT-LIKE ANIMAL RUNNING TO ATM MACHINES CONSTANTLY NEEDING TO REPLENISH HIMSELF. THAT WAS NOT CONVEYED TO THE JURY. THE TRIAL ATTORNEY UNDERSTOOD THE NEED TO DO IT. BUT THEY DID NOT DO IT. AND THAT WAS SUFFICIENT PERFORMANCE IN THE PENALTY PHASE OF THE TRIAL. HAD THEY DONE IT I THINK -- THERE'S A REASONABLE PROBABILITY THAT THE JURY WOULD HAVE RETURNED TO LIFE SENTENCE. >> MR. BRODY THANK YOU VERY MUCH FOR YOUR PRESENTATION. WE WILL TAKE THIS CASE UNDER ADVISEMENT. THANK YOU VERY MUCH.