THE MARSHAL: PLEASE RISE . LADIES AND GENTLEMEN, THE FLORIDA SUPREME C OURT. PLEASE BE SEATE D .

CHIEF JUSTICE: READY FOR THE CASE O F H ER TZ VER SE - - VERSUS THE STATE OF FLORIDA.IT AEARS THA T Y OU A RE R EADY TO PROCEED.

MAY IT PLEASE THE COURT, I'M B AY A H ARRISO N S UB STIT UTIN G T ODAY F OR CLYDE T AYLO R , COUNSEL FOR THE A EL LANT , GUERRY HERTZ. I WOULD LIKE TO R ES ERVE FIV E MINUTES FOR R EBUTTAL IF I M AY . YOUR HONOR, HAVIN G P RESENT ED MORE THAN 12 POS T- CO NVIC TION CASES BEFORE THIS COURT O VER A 2 0-YEAR PERIOD AND H AV IN G OBSERVED MANY MORE, I AM VERY MUCH A WARE THA T SOM ETIM ES CLAIMS O F INE FF ECTIVE ASSISTANCE OF COUNSEL B EC OME A LITTLE FRUSTRATING TO THE COURT AND IT I S E SPEC IA LLY TRUE IN A C ASE LIKE T HIS W E HAVE TO ADMIT T HA T M R. H ERTZ ' TRIAL ATTORNEY WAS BOTH EXPERIENCED A ND VERY C ONCE RN ED ABOUT HIS CLI EN T.

HOW ABOUT WE G O TO

I DID N'T HEAR W HAT HE S AID.

VERY CON CERNED ABOUT HIS CLIENT.

WE ACK NOWL ED GE D T HAT HE W AS CONCERNED VERY MUCH A BOUT HIS CLIENT. THIS WAS A T OU GH CAS E , THE FACTS WER E G RI SL Y AND THE STATE EAS IL Y P ROVE D T HE E XISTENCE O F SEV EN S TA TUTO RY AGGRAVATORS.

LET'S GO TO THE MEAT O F WHAT WE ARE TALKING ABOUT, AND WE WOULD ALL C ER TA INLY HOPE THAT ONCE W E REACH THIS LEVEL WE CAN AT L EA ST A GR EE O N W HA T THE RECORD IS.

YES, SIR.

AND I T S EE MS A S T HOUG H , THIS IN G REAT P AR T S EEMS TO SPIN FROM THE E ARLIER T ESTIMONY OF DR. S ES TA , I F I 'M SAYING THAT CORRECTLY, AND WHETHER DR. SES TA HAD REP OR TE D BRAIN D AMAGE A ND W HAT' S CONTAINED IN THE CROSS-EXAMINATION OF D R. S ES TA , IN COURT P ROCEEDINGS. I MEAN, IS THA T A F AI R SUMMA RY OF WHERE THIS COMES FRO M?

YES, SIR.

AND I F W E L OO K A T AND R EA D WHA T D R. SES TA H AS SAI D , D OE S HE S AY O R D ID H E SAY I N THA T CROSS-EXAMI NATION AFTER BEING C ROSS-EXAMINED , THE END LIN E , THAT BRAIN DAMAGE I S I NVOLVED IN THIS C AS E ?

YOUR HONOR, I HAV E A Q UO TE FROM D R. SES T , AND I W AN T T O S ES TA .

I DO , TOO.

AND I WANT TO MAK E SUR E I REPRESENT THE RECORD CORRECTLY.I THINK HE SAID AT ONE POINT THERE WERE INDICATIO NS O F M IL D CEREBRAL D YSFUNCTION F RO M T HE WRITTEN B ATTERY. IT ALSO HAD M IL D C ER EB RA L DYSFUNCTION , A M IL D P AT TERN O F BRAIN FUNCTIONING ON THE L EFT SIDE OF THE BRAIN THA T WAS FUNCTIONING MORE POORLY T HAN THE RIGHT S IDE. HE SAID T HE FRONT O R A NTER IO R PORTION OF THE BRAIN WAS NOT FUN CTIONING AS WELL AS IT SHOULD AND THEN HE SAID , IF I'M NOT MISTAKEN , I SAW FLAGRANT D EFICITS IN T HE FRONTAL LOBE FUN CT IO NS A S W EL L , AND HE EVEN WENT ON T O S AY THAT HE - - THA T H IS N EURO ANATOMY PROFESSOR HAD SUMMED THINGS UP WHEN HE SAID YOU A RE TALKING ABOUT FRONTAL LOB E PROBLEMS THAT S EPARATE T HE B EHAVIOR OF A FIVE-YE AR -OLD FROM THE B EHAVIOR OF A 30-YEAR-OLD.SO, YOUR HONOR, Y ES , THA T' S W HAT DR. SES TA SAI D.

DID HE A LSO S AY T HA T H E H AD S OME NEU RO DEFIC IT DEVELOPMENTAL DISORDERS?

YES, SIR.

CONSISTENT IN PART WIT H HIS UP BRINGING A ND THI S NON VE RB AL CIRCUMSTANCE THAT U NFORTUNATELY T HE Y OUNG PERSO N WAS I N , BUT ALS O F OUND N O INDICATION, R ETAR D DAT IO N , BORDER LI NE I NTEL LE CT UA L FUNCTIONING , A XIS 1 M AJOR ILLNESS AND THE TRIAL J UDGE STATED AND FOUND T HA T T HE RE WAS NO BRA IN DAM AGE. IS T HA T A MIS RE AD IN G O F THI S RECORD?

NO, YOUR HONOR, I DON 'T THINK THAT'S A M ISREAD IN G , BUT I THINK THAT WHA T D R. S ESTA SAYS SPEAKS F OR ITS ELF AND THAT HE DID IND IC AT E T HA T THERE CERTAINLY WAS SOM E CEREBRAL DYS FUNC TION H ER E , A ND I DON'T K NOW IF T HA T' S T OTAL LY ANALOGOUS WITH BRAIN D AMAGE BUT I T GET S C LOSE A ND DR. MOSSMAN WHO W E ASKED T O P ARTICIPATE DURING T HE POST- CONVICTION HEARING CLEARLY SAID THAT HE FELT THERE WAS B RAIN DAMAGE AND H E WENT EVEN F UR TH ER A ND S AI D THAT HE THOUGHT IT WAS G EN ETIC IN NATURE. SO MY POINT I S THE RE W AS DEFINITELY INF OR MA TION H ER E TO THE E FFECT T HA T T HI S Y OU NG M AN W AS A L OT M OR E MENTA LL Y I LL THAN DR. D ER EK O IND ICAT ED H E WAS - - D 'ERR IC O.

N OW , D R. M AS S MA N , D ID N' T H E USE THE SAME T ES TS - - H E DID N'T DO A NY IND EPEN DE NT TESTING, DID HE? HE USED THE S AME T ESTS THAT WERE DONE B Y THE DOCTOR W HO HAD, IN FACT, TESTI FIED AT THE PENALTY PHASE?

NO, YO UR HONOR. DR. MOSSMAN WENT TO THE PRI SO N AND CON DUCTED HIS O WN T ESTI NG . N OW, D ID S OM E OF THO SE TES TS OVERLAP? YES, YOUR HONOR , I'M SUR E THA T THEY DID, BUT H E D ID H IS O WN INDEPENDENT TESTING, AND HE CAME U P WIT H C ONCLUS IO NS T HAT INDICATED THAT THIS YOUNG M AN HAD A LOT M OR E S ERIOUS PRO BLEMS M ENTALL Y O F - - THA N DR. D'ERRICO SAID.

DID D R. M OSSM AN SAY E SSENTIALLY THA T WE INT ER PR ET THIS DATA D IF FERE NT LY ?

I THI NK IT WAS MOR E T HA N J UST DEGREE. I THINK THAT T HAT'S PART OF IT , BUT DR. MOSSMAN WAS PRE TT Y I NSISTENT THAT THIS Y OUNG MAN HAD MENTAL PROBL EM S , THA T FAR EXCEEDED THOSE POI NTED O UT B Y DR. D'ERRICO, BUT WHAT I WAN T TO

WE'RE GET TING DOW N TO , ARE WE NOT, T O TRY T O EVA LU AT E WHETHER THIS LAWYER , H AVIN G D ONE WHAT W AS A CC OM PL IS HED WITH REGARD TO MENTAL HEALTH IN THI S C AS E , W HETHER T HAT L AWYER OPERATED A S COU NSEL SHOULD OPERATE? I MEAN THAT' S REA LL Y WHAT W E ARE HERE ABOUT, ISN'T IT?

ABSOLUTELY.

AND W E K NOW DR. M OSSM AN H AS EXPRESSED OPINIONS THAT THE COURT HAS F OUND NOT C REDIBL E. YOU AGREE W ITH THAT. THE TRIAL JUDGE FOUND T HIS WITNESS NOT CREDIBLE?

YOUR HONOR, I KNO W A BOUT WHAT YOU ARE REFERRING TO. I DON'T THI NK THEY FOU ND D R. MOSSMAN NOT CRE DI BLE.

HOW ABOUT H IS T ES TIMO NY NOT CRE DIBLE?

THEY DID NOT A CCEPT HIS TESTIMONY.I DON'T THINK THEY FOUND H E WAS FAKING ANY TH IN G OR ANYTHING LIKE THAT.

BUT AGAIN WOULD YOU G O IMMEDIATELY THEN TO WHA T I S I T THAT THIS L AWYE R F AI LE D T O D O OR DID U ND ER T HESE C IRCUMSTANCES THAT BRING S I T INTO THAT C ATEG OR Y U ND ER S TRICKLAND SO THAT , NUMBER ONE , IT WAS IN EFFECT. NUMBER TWO, T HE P REJU DI CE B Y THAT.

I DON'T T HINK COU NSEL REALIZED THE SERIOUSNESS OF THE EMO TIONAL PRO BL EM S , T HE MENTAL PROBLEMS THA T T HI S YOUNG MAN HAD, AND HE CONNECTED HIM TO THE S TATU TO RY MITIGATORS. NOW, LET ME B E SPECIFIC. FOR EXAMPLE, DR. M OS SM AN POINTED OUT THAT THERE S HOULD HAVE BEEN AN A GE M IT IGATOR HERE. THIS SHOULD HAVE BEEN A G IV EN MORE P ROMISE . THI S COURT - -.

DID ANYONE MENTION T O T HE LAWYER ANYTHING OTHER THAN THE CHRONOLOGICAL A GE? ANY OF THE MEN TA L H EALT H EXPERTS T HAT WERE SELECTED, DID THEY BRING THIS TO HIS ATTENTION?

NO, SIR.

THEN HOW COULD H E H AVE D ON E SOMETHING IF IT WAS NEVER BROUGHT TO HIS ATTENTION? ARE Y OU S AY ING T HESE T WO EXPERTS HE HIRED WERE JUST CLEARLY NOT EXPERTS AT ALL ? THAT THEY WERE JUST FUNDAMENTALLY NONEXPERTS I N THIS AREA?

BUT COU NSEL SHO UL D HAVE KNOWN T HAT THE A GE M IT IGAT OR CAN DEAL WITH THE M ENTA L A GE .

I U NDERSTAND THAT. I'M A SKING DID SOM EONE ALE RT , IS THERE SOM ET HING THAT ALERTED THIS LAWYER THAT SOMETHING OTHER THAN CHRONOLOGICAL A GE I S I NV OL VED WITH THIS INDIVIDUAL?

SECTION 921 .141 .6 G S HOUL D H AVE ALE RTED C OUNS EL.

SO THIS PERSON. HE IS NOT IN THE STATUTE. THIS PERSON, M R. H ERTZ , I S THERE A NYTH IN G T HA T ANY ON E DID TO ALE RT T HE LAWYE R , M R. LAWYER, THIS I S CHRONOLOGICAL AGE IS N OT AROPRIATE , THAT T HE RE I S A SUBTLE AGE PROBLEM HERE , BECAUSE OF HIS MEN TA L CONDITION?

NO M ENTA L HEA LT H E XP ER T DID THAT, YOUR HONOR, B UT C OU NSEL SHOULD HAVE K NOWN THAT , A ND PROCEEDED ACCORDINGLY .

HOW W OU LD A N A TT ORNE Y KNO W THAT?

BECAUSE THE STATUTE IS NOT JUST LIMITED T O C HRON OLOG IC AL AGE.

I'M ASKING HOW WOULD H E KNOW THAT ABOUT MR. HERTZ I F MR. HERTZ IS FUNCTIONING AND HE GETS EXPERTS?

WELL, THIS C OU RT H AS MADE THAT POINT I N H ERTZ V ER SU S STATE AND FOSTE R V ER SUS STATE. TWO CAS ES DECIDED BY T HI S COURT HAVE I ND IC ATED T HA T T HI S MITIGATOR IS NOT LIMIT ED T O C HRONOLOGICAL A GE .

W E ACCEPT THAT. BUT WHAT WAS THERE A BOUT T HI S EVIDENCE THAT WOULD A LE RT SOMEONE, THIS LAW YER , T HA T MR. HERTZ WAS IN THAT C ATEGORY?

I THINK THAT D R. S ESTA 'S I NFORMATION WOULD HAVE A LE RTED THA T THIS Y OUNG M AN H AS GOT SOME PROBLEMS. THAT ARE A LOT MOR E S ERIOUS THAN CAN BE ATTRI BUTE D T O A BAD CHILD HOOD AND O TH ER FACTORS , H IS C LU B F OO T AND THINGS O F T HA T N ATUR E.

DID D R. S ES TA E VE R TEL L T HE LAWYER, MR. HERTZ HAS T HE MEN TAL AGE O F X , EVE N T HO UGH HE IS OVER THE AGE O F 18?

HE DID NOT, YO UR HON OR .

I THINK THAT'S THE QUE ST IO N JUSTICE LEWIS I S TRYING T O G ET TO.

I HOPE I D IDN' T D OD GE T HE QUESTION. T HE EXPERTS D IDN'T DO THAT , BUT T HE ATTORNE Y S HO ULD HAV E KNOWN THAT THIS MIT IG AT OR I S NOT LIMITED T O C HRON OLOG Y . THIS ALS O , A NO TH ER S TATU TORY MITIGATOR T HA T C OU LD HAV E B EE N E MPHASIZED MORE HAD TO D O WIT H EXTREME EMOTION AL DIS TU RB ANCE . T HIS STATU TO RY MIT IG ATOR F OU ND IN 9 21 .161 B. D EFENSE COUNSEL NEVER E VE N MENTIONED THIS TO THE J URY A ND JUDGE DURING THE PENALTY PHASE , AND WHEN YOU LOOK A T W HA T DR. S ESTA SAID AND LOO K A T WHAT D R. MOS SM AN POI NT ED O UT , THIS YOUNG MAN WOULD S EEM T O FIT U NDER THI S PAR TI CULAR CATEGORY.

NOW, WE D ID HAV E A M ENTA L HEALTH EXPERT WHO TESTIFIED AT THIS PENALTY PHASE?

D R. D'E RR ICO.

THAT T ALKED ABOUT A TTEN TI ON DEFICIT , H YP ER ACTIVI TY DISORDER, THAT KIND OF INFORMATION?

YES, YOUR HONOR.

SO WHAT WAS I T ABO UT THA T MENTAL HEA LT H I NF OR MATION THAT WOULD HAVE SUP PO RT ED THE EXTREME MENTAL O R E MO TI ON AL D ISTURBANCE?

I WILL HAVE TO ADMIT I DON'T THINK D R. D'E RR IC O 'S TESTIMONY WOULD DO THAT, B UT DR. SESTA 'S WOULD AND ONE OF THE POINTS WE HAVE MADE I S THAT COUNSEL SHOULD HAVE CALLED DR. S ES TA A S A W IT NESS , BECAUSE D R. S ESTA W AS A NEUROPSYCHOLOGIST A ND H E D ID F IND THAT THERE WERE A L OT MORE PROBLEMS W ITH THIS Y OU NG MAN IN TERMS OF H IS C EREB RA L DYS FUNCTI ON .

CHIEF JUSTICE: THIS JUST SEEMS TO M E AND I KNO W Y OU UNDERSTAN D THAT THIS I S A V ER Y HYPHENS TO CRO SS , T HA T YOU ACKNOWLEDGE AT THE BEG IN NI NG THIS WAS AN E XP ERIE NCED COUNSEL . T HAT DID H IS B ES T , A ND YOU ALSO A CK NOWLEDGE THAT THIS I S A TERRIBLE , TER RIBLE C RIME WIT H S IG NIFICANT , M ULTI PL E AGGRAVATORS , AND I'M N OT S UR E I EVE N SEE , JUS T A SSUM E WE GET THE F IRST PRONG , H OW Y OU G ET TO THE P RE JU DI CE PRONG THI S I S T HAT OUR C ONFIDENCE IN T HE OUTCOME WOULD BE UND ER MI NE D .

YOUR HONOR, DUR IN G C LOSI NG A RGUMENTS AND ALL DURING T HE PENALTY PHASE , THE STATE O N THE O NE H AN D H AM MERE D AWA Y A T T HE S TATU TO RY A GGRAVA TO R S. NOW , W HE N Y OU R EA D C OU NSEL 'S A RGUMENTS, THERE I S N O R EFERENCE WHATS OEVER U NLES S I'M M ISTAKEN AND I'M T RY ING T O B E ACCURATE HERE , E VE R T O A NY OF THE STA TU TORY M ITIG AT OR S. S O W HAT Y OU H AV E IS A SITUATION WHERE T HE J UR Y I S THERE, THE J URY I S LOOKI NG F OR GUIDANCE, A ND WHA T T HE JUR Y GETS I S SEV EN P ROVE N S TA TU TORY AGGRAVATO R S. THE E XISTENCE O F A T L EAST THREE STA TUTORY M ITIGAT OR S , AND NEVER ONE M EN TION W HATSOEVER B Y D EFEN SE C OU NS EL OF THESE S TA TUTO RY M IT IG ATOR S , INCLUDING THE ONES THAT I HAV E DISCUSSED HERE TODAY. AND THAT IS P REJUDI CE .

W HE N T RIAL COU NSEL IS MAKING AN ARGUMENT ABO UT A MITIGATING CIRCUMSTANCE , I T I S G ENERALLY B EC AUSE EVI DENCE HAS BEEN INTRODUCED T O SUP PORT THOSE MITIGATORS.

YES, YOUR HONOR.

WHETHER THEY B E S TA TU TORY OR NON ST AT UTOR Y . I'M HAVING A HARD TIM E H ER E WITH WHY D EF ENSE COUNSEL SHOULD HAVE ARGUED MIT IG AT OR S WHEN THERE WAS N O E VI DENC E THAT WAS INTRODUCED T O SUP PORT THOSE M ITIGATORS.

THE POINT IS E VI DENC E SHOULD HAVE BEE N P RO DU CED , EVI DENCE W AS AVA ILAB LE .

THERE ARE R EALL Y T WO ARGUMENTS THEN. THIS EVIDENCE SHO ULD HAVE B EEN PRESENTED AND THEN HE W OU LD HAVE HAD AN ARGUMENT TO MAK E TO THE JURY?

THE EVIDENCE W AS E XT AN T A T THE TIME OF THIS P ENALTY P HASE , ACC ORDING T O DR. SES TA THA T THERE WER E F LAGR AN T D EF ICIT S IN THE FRONTAL L OB E FUNCTIONING AND THE JURY NEVER HEARD THAT.

AND THAT EVIDENCE OF DR. SESTA WOULD HAVE S UP PO RTED THESE THREE STA TUTORY MITIGATORS?

T HA T' S M Y A RG UMENT , YOUR HONOR, AND I THINK CLEARLY I T WOULD HAVE . I 'D LIKE TO, I F I MAY , R ESER VE THE REST OF MY TIME.

JUST ONE Q UEST IO N. DOES T HE P ROBL EMAT IC H OM E L IF E WITH THE NONVE RB AL CIRCUMSTANCES PLAY ANY PART I N THE FRONT AL L OB E I SSUE ?

A CC OR DING T O DR. D'E RR IC O IT WOULD HAVE.

IT DID?

YES, YOUR HONOR.

ACCORDING TO D R. S ESTA AND MOSSMAN, THE PROBL EM W AS ORGANIC, THE PROBLEM D EALT WIT H A F RONT AL L OB BY DYSFUNCTION LOB E DYSFUNCTION AND THAT'S THE POINT. THE JURY DID NOT GIVE THE F ULL PICTURE.

DO YOU AGREE T HA T COU NSEL TESTIFIED AT THE E VIDENT IARY HEARING THAT THE REASON HE DID NOT CALL D R. SES TA A S A WITNESS WAS BECAUSE OF DR. SESTA'S POOR PERFORMANCE AT THE C OM PE TENC Y H EA RING O N CRO SS-EXAMINATION, AND HE SAID , QUOTE, AFTER SEEING WHAT HAENED TO D R. S ESTA O N CROSS-EXAMINATION, I D ECID ED THAT THE DOC TO R W AS NOT A GOO D WITNESS AND NOT THAT HELPF UL AMONG OTHER THINGS D R. SES TA TESTIFIED TO POS SI BL E FRO NT AL LOBE DAMAGE ON CROSS-EXAMINATION AND THE N BACKED OFF O N CRO SS-EXAMINATION. WHY ISN'T THAT A STR AT EGIC D ECISION THAT C OUNSEL M ADE NOT TO CALL THIS WITNESS ?

THA T COULD B E , I A DMIT , A STRATEGIC DECISION. HOWEVER, AS I A DD RESSED I N M Y BRIEFS, THA T R EALL Y W ASN' T T HE CASE. IF YOU LOOK AT T HE CROSS-E XAMINATION, DURING THA T COMPETENCY PROCEEDING, THE STATE ATTORNEY DIDN'T DO AS GOOD A J OB A S I T HI NK M R. RAN D FELT HE DID.

NOW WE'RE G ETTING I NTO SECONDGUESSING THE J UDGM EN T A S TO WHETHER HE THO UG HT CROSS-EXAMINATION WAS EFFECTIVE OR NOT. IF A COUNSEL SAYS I B EL IEVE H E WAS CROSS-EXAMINED AND HE W AS NOT A GOOD WITNESS, D O W E T HE N GO B EH IN D HIS C ON CLUS ION A ND ANALYZE O URSELVES WHETHER THAT WAS A GOOD WITNESS OR NOT T O SECONDGUESS THE STRAT EGIC DECISION?

NO , YOUR HONOR, I C ERTA INLY AGREE W ITH Y OU , DEF ER EN CE MUS T BE G IVEN T O C OUNSEL , I W IL L AGREE, BUT THAT DOESN 'T MEAN YOU CAN'T LOOK AT IT A ND I ASK YOU TO LOOK HAR D AT IT , LOO K AT THAT TESTIMONY AND I T HINK YOU WILL SEE THAT D R. SES TA HELD UP A L OT B ETTE R T HA N MR. RAND THOUGHT HE DID. THANK YOU , YOUR HONOR.

CHIEF JUSTICE: THANK YOU , MR. HARRISON . MIS S S NURKOWSKI? AFTER THE LAS T C ASE.

A LOT OF S KIS. MAY IT PLEASE THE COURT , I A M CAROLYN SNURKOWSKI. I'M ASSISTANT DEP UT Y A TTORNEY GENERAL FOR THE IN TALLAHASSEE. I THINK F IRST REMARK I W OU LD LIKE TO MAKE WIT H REG AR DS T O DR. SESTA IS HE WAS THE O NE THAT ALSO TIED IN THE F ACT THAT THERE W AS A D ISPA RA TE NUMBER BETWEEN THE VERBAL IQ AND THE PERFORMANCE IQ OF MR. HERTZ AND THAT WAS DUE T O HIS PAREN T'S D EAFNESS AND S O A T THAT POINT I T HI NK DR. D'ERRICO GOT THAT INFORMATION.HE CONCURRED WITH I T B UT DR. MOSSMAN WAS THE O NE WHO CAME AT POS T-CO NV IC TION PLEADING MOTION H EA RING A ND DECIDED THAT THAT WAS N OT ADEQUATE. SO THE EXPLANATION WAS THAT H E HAD A N I Q O F 9 1 , AND HIS VERBAL IS 76 A ND H IS PERFORMANCE IS 1 18 A ND AVERAGING THAT OUT IT COM ES U P TO A 9 1. THE E XPLA NATION B Y B OT H DOCTORS, AND E VE N DR. , I W ANT TO SAY D R. C ONGE R BEC AU SE I F YOU RECALL I N T HI S C ASE , MR. WAS HERTZ P RE TRIA L CHALLENGE, HIS COMPE TE NC Y T O STAND TRIAL AND THAT' S WHEN A LOT OF THE TESTIMONY CAME OUT WITH REGARD TO D R. SES TA , DR. D'ERRICO AND D R. C ONGE R WHO WAS HIR ED B Y T HE S TATE T O TESTIFY AS TO WHETHER H E WAS COMPETENT TO TES TI FY . TWO DOC TORS F OU ND I F G IV EN MEDICATION HE COULD BE M AD E COMPETENT TO STAND TRIAL. D R. CONGER SAID WHILE THIS INDIVIDUAL DID SUFFER FROM ADHD, THAT WHEN HE T OO K HIS RITALIN HE WAS BETTER , B UT H E DIDN'T NEED TO HAVE M ED IC AT IO N TO BE COMPETENT AND A BLE AND I THINK THERE IS E VI DENC E T HA T IS RESPONS IBLE A ND R EF LECTIVE IN THIS R EC OR D T HA T E VE N THOSE DOCTORS, D R. D 'E RR ICO AND DR. SESTA ALSO CON CU RR ED T HA T WHILE THE MED IC AT IO N W OULD HELP, THAT H E K NE W W HAT H E W AS DOING, HE KNE W HOW T O O PERATE , HE WOULD CON TR OL H IS BEH AVIOR , AND A LTHOUGH HE M AY HAV E SUFFERED FROM A DHD , I T W AS NOT AN O VE R BEAR IN G PRO BLEM I N HIS L IFE. HE NEEDED M ED ICATIO N B UT H E COULD CONTROL HIMSELF .

WHAT'S THE DIS TINC TI ON BETWEEN T HE E FF EC T O N ABI LITY TO CONTROL ONE 'S BEH AVIO R , W HAT'S THE DIF FERENCE B ETWEEN THE A DH D DIA GN OS IS AND THE ORGANIC FRONTAL LOB E D AMAG E?

I DON'T THI NK , I T HINK THE DOCTOR, I DON 'T THINK D R. M OS S !!!!!!!! MOSSMAN EXP LAINED THAT. I M EA N H IS DIA GNOS IS A T THE POST-CONVICTION HEARING WAS THAT THIS O CCURRED B ASED O N HIS T ESTING. THAT THERE WAS F RO NT AL L OBE DAMAGE AND THERE WAS A N IMBALANCE WITH REGARD TO THE DEVELOPMENT THE BRAIN AND THA T WAS DR. S ES TA 'S K IN D O F REMARKS THAT THERE WAS A DYSFUNCTION AS T O DEVEL OP MENT OF THE B RAIN . DR. D'ERRICO DIDN'T HAVE ANY REMARKS WITH REGARD TO THAT. HE CLEARLY W AS OF THE M IN DS ET THAT THE VERBAL , B EC AU SE MR. H ERTZ HAD VER BA L DIFFICULTIES, THAT THAT WAS MANIFESTED BY L IVING IN A N ENV IRONMENT WHERE DEAF P EO PL E WERE PRESENT.

MY Q UESTION IS THE C ONCERN ABOUT FRONTAL L OBE D AM AG E A S I UNDERSTAND IT IS WHETHER YOU ARE ABLE TO

CONTROL.

CONTROL YOU R B EH AV IOR. AS I UNDERSTAND IT , IT I S A S IMILAR CONCERN WITH T HE A DH D. SO HOW WAS T HA T D IF FERE NT IATE D?

I D ON'T T HI NK I T WAS . THAT'S THE POINT. I DON'T THINK THERE WAS ANY EVIDENCE IN THIS RECOR D T O REFLECT THAT M R. H ER TZ COULDN'T CONTROL HIMSELF, AND I DON 'T THINK T HAT M R. MOS SM AN OR D R. M OSSM AN W AS A BLE T O KNOW THAT. HIS ANALYSIS WAS B Y L OO KING AND T ALKING T O HER TZ H E D ID , IN FACT , I NTERVI EW H IM A ND D O TES TING BUT HE HAD N O R EA L KNOWLEDGE OF THE RECORD.HE HAD NO KNOWLEDGE OF T HE CRIME. HE HAD NO KNOWLEDGE OF THE PRETRIAL C OM PETENC Y H EA RING. HE DIDN'T REALLY KNOW WHAT T HE OTHER D OCTORS, HE DIDN' T S PE AK TO THE DOCTO RS , H E D ID N'T K NO W WHAT THE DEFENSE WAS. HE WAS I N A VACUU M T RY IN G T O MAKE AN ANALYSI S OF W HA T T HIS INDIVIDUAL WAS LIKE, AND WITHOUT ANY R EA L H ELP.

AND S O IN THE EVI DE NT IARY HEARING IN THE MOTION BEFORE US, WAS H E A SKED T O TRY T O RELATE T HE O RGAN IC B RAIN DAMAGE THAT WITH T HE B EHAV IO R IN THIS CRIME?

HE WAS ASKED, YOU K NO W , T HE CRIME AND HE DID NOT KNOW T HE CRIME. HE COULD NOT RELATE THAT. HIS IDEA WAS THA T T HI S I S A N INDIV IDUAL WHO S UF FERS AND H E HAS GOT A M ENTA L P ROBL EM , B ECAUSE THAT'S WHAT D R. MOS S MA N FOCUSES ON. WHEN THE RUBBER HITS THE ROAD IN THIS PAR TICULAR CASE , T HE ADDITIONAL EVIDENCE T HAT WAS TO BE P RE SE NTED O R T HAT S HO ULD HAVE BEEN PRESE NTED WAS M EN TA L AGE. WE SHOULD HAVE SOM EH OW MASSAGED THAT TO GET MORE INFORMATION OUT OF THAT AND THAT WAS SOMETHING T HA T D R. MOSSMAN FEATU RE D.

COULD WE GO BAC K AND EXPLORE JUST A LITTLE BIT FURTHER , C ER TA INLY COM PETE NC Y EXAMINATIONS ARE D IF FERE NT A S FAR AS PURPOSE.

SURE.

FROM MITIG AT IO N KINDS O F THINGS, B UT ARE THERE ANY ISSUES IN T HIS CASE WITH REGARD T O W HE THER I T W AS INAROPRIATE TO RELY O N T HE COMPETENCY ASPEC T E XAMI NATI ON AND CONTINUE THAT FORWA RD A ND USE THO SE SAME P EO PL E W ITHOUT ADDITIONAL EXAMS OR AN YT HINGLIKE THAT? WAS T HERE ANYTHING LIKE THAT IN THIS C ASE?

THAT WAS N EV ER AN ISSUE A ND THAT WASN'T ANYTH ING THAT DR. MOSSMAN

CRITICIZED?

NO, HIS C RI TICISM WAS T HAT DR. SESTA SHOULD HAVE BEEN THE ONE TO TESTIFY V ER SU S DR. DREEK O HE THOUGHT HIS TESTIMONY WAS B ETTER BECAUSE HE WAS THE ONE T HAT S EEME D T O S UGGEST BUT NEV ER REA LL Y MANIFEST MENTAL, F RO NTAL LOB E D AMAGE , A ND T HA T J US T REA LL Y NEVER M AN IF ES TE D ITSELF. IT JUST W AS NOT THERE , W HA T THIS INDIVIDUAL H AS , A J US T BELOW AVERAGE IQ. HE FUNCTIONS I N S OCIE TY , A ND ALL OF THE D OC TO RS P RE TT Y M UCH SAID THAT.THE ONLY ISSUE THA T REALLY CAME TO THE F RONT A T THE MOTION T O D ETERMINE C OM PETENCY , W AS WHETHER, IN F ACT , H E W AS COMPETENT TO ASSIST BECAUSE OF HIS HYPERACTIVITY. AND, AGA IN , DR. C ONGE R S AI D H E WAS. HIS MEDICINE WOULD H ELP B UT H E DIDN'T NEED HIS MEDICIN E T O OPERATE IN THE NORMAL WAY OF THINGS AND B OT H DR. S ES TA A ND DR. D'ERRICO SAID IT W OU LD B E NICE TO H AVE THEM SEND H IM AWAY TO A HOSPITA L FO R A COUPLE OF MONTHS BUT WE CAN MAKE HIM CHE MI CA LL Y C OMPE TE NT AND THAT WAS THEIR VIE W B UT EVEN THAT W AS S US PE CT BEC AUSE THEY ALSO S AID THAT H E U ND ER TOAD IT - - U ND ER STOO D W HA T WAS GOING ON. HE COULDN'T C OOPERATE WITH HIS CLIENT BECAUSE HE WAS N' T INTERESTED OR HE HAD A DISINTEREST IN WHAT WAS G OING ON BUT THAT WAS S OM ETHI NG H E COULD T URN ON A ND O FF , A LSO. I THINK THE RECORD I S P RE TT Y CLEAR ABOUT THAT. IF YOU LOOK A T THE LAY WITNESSES AND I THINK IT IS IMPORTANT TO REFLECT WHAT EXACTLY HAENED. THIS IS NOT J US T A D OC TO R , WHETHER A DOCTOR SHOULD HAV E T ESTIFIED. WE HAVE LAY W IT NESS ES W HO TESTIFY TO HOW MR. HER TZ ' L IF E WITH REGARD TO H IS A DH D A ND W ITH HIS ABI LITY TO B E IN SCHOOL AND WHETHER HIS A BILI TY TO H ANDLE T HI NGS , H IS AUN T SAID THAT WHEN HE WAS I N SCHOOL AND HE HAD HIS RIT AL IN HE WAS VERY GOOD. HE GOT GOO D G RADES. WHEN HE W ASN'T HE DIDN' T DO A S WELL. YOU HAVE SCHOOL T EACH ERS SAYING THAT HE WAS H YPER ACTI VE . SO THE RECORDS WERE ALL T HERE. AND I THINK THE ONE THI NG T HAT PROBABLY IS S O U PS ETTI NG I N A W AY I S T HA T H ERE W E HAD DR. MOSSMAN PON TI FI CATI NG ABO UT WHAT W AS GOING ON W ITH THIS INDIVIDUAL AND HE DID NOT KNOW WHAT THE MITIGATION WAS THAT WAS PRESE NTED. HE DID NOT KNOW T HA T M R. R AN D HAD PUT TOGETHER A B OOK O N MR. HERTZ' LIFE. HE DID NOT H AV E A CC ES S T O I T. HE DIDN'T SEE A LL O F THE MEDICAL RECORDS, ALL OF THE STUFF WAS IN THERE, AND THAT WAS ALL P RESE NTED. HE REALLY DID NOT KNO W W HAT WAS GOING ON AND IN A V ACUU M WAS MAKING AN OBSER VATION WITH REGARD TO W HA T H E THO UG HT WAS THE PROPER W AY O R W HO WAS THE D OCTOR OR THE LAW YER SHOULD HAVE DONE WITH REGARD TO W HA T DOCTOR SHOULD HAVE BEEN BROUGHT TO THE FOREF RONT A ND TESTIFIED.

WAS IT THE SAME T ES TING I NSTRUMENTS?

I THINK THEY W ERE P RE TT Y MUCH - -

PRETTY MUCH THE S AME?

YES, A ND CON TR AR Y T O W HA T M R. BAYA SAID - - I'M SOR RY , I 'M KNO WN B AY A FOR EV ER. I THINK THE R EC OR D D OES B EA R ON THE FACT THAT D R. MOS SMAN AT THE ENDED T O S AY I T W AS T HE SAME EVIDENCE AND WE'RE M AKING A DIFFERENT ASSESSMENT OF T HIS EVIDENCE. IF THE S TATE H AS NO FUR THER QUESTIONS SORRY . I HAVE A SECON D C AS E TOD AY . IF THE C OURT H AS N O F UR THER QUESTIONS I WOULD ASK THAT YOU AFFIRM. THANK YOU.

CHIEF JUSTICE: THANK Y OUVERY MUCH. REBUTTAL ?

THA NK Y OU . VERY BRIEFLY, C OU NSEL. I JUST WAN TE D T O C OR RECT T HE REC ORD U NLESS I MIS UNDE RS TOOD COUNSEL. DR. MOSSMAN DID SPEAK T O DR. SESTA PRIOR TO H IS T ESTIMONY . HE READ THE E NTIR E PEN ALTY P HASE T RANSCR IPT. HE READ THIS COU RT'S O PI NI ON REGARDING THE D IR ECT A EA L , SO I THINK HE W AS F AMIL IAR WITH THE FACTS OF THE CAS E ALTHOUGH IT IS T RU E , A ND HE DID NOT R EA D O NE O F THE DOCUMENTS, ONE OF T HE THICK DOCUMENTS THAT COUNSEL SUBMITTED, BUT THE POI NT I S REALLY THIS , YOUR HONOR , I N CONCLUSION, IF T HI S J UR Y COU LD HAVE K NO WN T HA T T HEY W ERE REALLY D EALI NG WIT H A P ER SO N WITH A MEN TA L A GE A ROUN D 1 4 , WOULDN'T T HE IR REC OM ME NDAT IO N AS TO LIFE O R D EATH H AV E BEE N D IFFERENT? DR. MOSSMAN AND DR. S ES TA INDICATED THAT THE BRAIN DAMAGE THAT THIS Y OU NG M AN SUFFER RD F RO M I N Q UO TE - - SUFFERED FROM I N Q UO TI NG DR. MOSSMA N DIR ECTL Y R ELATED TO IMPULSE, CONTR OL , ANALY SI S , J UDGMENT, M AT UR IT Y , SEL F CONTROL ALL OF THE THING THA T SEPARATES A DOLE SCEN T S FRO M A DULTS.

HOW DID DR. MOSSM AN REL AT E THAT DIAGNOSIS TO THE FAC TS O F T HIS C ASE A ND D IF FE RENT IA TE I T FROM THE A DH D INF ORMA TI ON T HAT THE JURY ALREADY H AD ?

JUSTICE BELL, WHAT D R. M OS S !!!!!!!! MOSSMAN DID W AS E MP HASIZE THE F ACT THA T A DH DID NOT PLA Y T HE ROLE IN TERMS OF WHAT THIS YOUNG MAN 'S PROBLEMS WER E THAT THE BRAIN DAMAGE DID. IN OTHER WORDS, D R. M OS SM AN SEEMED TO AGR EE WITH D R. S ES TA THAT THIS YOU NG MAN 'S P RO BL EM S WERE MUC H M OR E S ER IOUS AND M UCH DEEPER.

HOW DID THE DIFFERENT , I GUESS IT IS T HE V OL ITIO NA L ISSUE, WHETHER IT I S C AU SE D BY ORGANIC BRAIN DAMAGE OR A DH D OR OTHER RELATIO NSHIP, THE U NDERLYING ISSUE IS THE IMPULSE CONTROL.

YES, SIR.

AND H OW - - T HE N THA T' S A PROBLEM, IS IT N OT , W IT H A DH D T HAT THERE IS INA BI LITY T O CONTROL YOUR IMPULSES?

THAT'S CORRECT , SIR.

SO HOW D ID MOS SM AN DIFFERENTIATE THE Q UA LITY O F THE V OL IT IONA L CON TROL T HA T D IFFERENTIATES THE O RG ANIC BRAIN DAMAGE FROM THE ADHD?

I THINK HE DID I T U PO N H IS KNOWLEDGE OF THE SUBJECT AND HIS TESTING, AND I T HINK H E WAS TRY ING TO POINT OUT T HAT , YOU KNOW, WHEN YOU THI NK ABO UT AS THE CHIEF JUS TICE P OI NT ED OUT, THE SER IO USNE SS OF THIS CRIME, THE H OR RIBL E N AT URE O F THIS CRIME, WHAT WENT O N WIT H T HESE THREE Y OU NG M EN W HE N A LL OF THIS TOO K P LA CE , I F PER HA PS THE JURY COULD H AVE U ND ERST OO D EXACTLY WHO THEY WER E D EA LI NG WITH IN TERMS OF M R. HER TZ , T HEIR R ECOM MENDATION MIGHT HAVE BEEN DIF FE RE NT. I DO THA NK YOU R H ONOR AND T HE COURT.

CHIEF JUSTICE: THANK YOU , M R. HARRISON. YOU M AY B E H ER E F OR T HE NEX T CASE.