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.

Larry Eugene Mann vs State of Florida


JUSTICE QUINCE IS RECUSED FROM THIS CASE LARRY EUGENE MANN VERSUS THE STATE OF FLORIDA. JUSTICE QUINCE IS RECUSED FROM THIS CASE. YOU MAY PROCEED.

MAY IT PLEASE THE COURT. MY NAME IS LESLIE SCALIO, AND I REPRESENT LARRY MANN FOR CCR REGION. THIS IS A APPEAL FOR LARRY MANN MANN'S APPEAL FOR POSTCONVICTION RELIEF. I WOULD LIKE THIS COURT TO INCLUDE AS AN ERROR THAT THE ADMISSION OF PEDFEEL YEAH WAS NOT INEFFECTIVE ASSISTANCE OF COUNSEL. HE CHOSE TO PRESENT PEDFEEL YEAH AS A CIRCUMSTANCE TO COUNSEL WAS WRONG. HAD THE STATE INDLY INTRODUCED EVIDENCE THAT MR. MANN WAS A PEDOPHILE, HE WOULD HAVE ALLOWED IT AS A NONVIOLATING CIRCUMSTANCE, UNDER FLORIDA LAW.

I THOUGHT THAT COUNSEL TESTIFIED THAT HE FELT, AS AN EXPERIENCEED DEFENSE LAWYER, THAT WHEN YOU HAVE A TERRIBLE CRIME LIKE THIS WAS, THAT NOT TO GIVE THE JURY SOME EXPLANATION ABOUT WHAT WOULD HAVE MOTIVATED A PERSON LIKE THIS, WOULD HAVE BEEN INAPPROPRIATE, AND THAT HE DID THIS AS A MATTER OF TRIAL STRATEGY. WAS THAT NOT, ALSO, HIS TESTIMONY?

HE, ALSO, TESTIFIED THAT HE DID INTRODUCE PEDOPHILIA, TO EXPLAIN THIS CRIME TO THE JURY. HOWEVER, COUNSEL TESTIFIED THAT HE BELIEVES THAT SHOULD BE DONE IN EVERY CASE, AND HE EVEN SAID WHETHER IT IS RIGHT OR WRONG --

IN EVERY CASE THAT YOU MUST GIVE THE JURY SOME EXPLANATION AS TO WHY SOMEBODY WOULD -- NOT THAT YOU WOULD INTRODUCE PEDOPHILIA. THAT YOU WOULD HAVE TO GIVE SOME REASON, AND SINCE THERE WAS NO BRAIN DAMAGE IN THIS CASE, THAT THIS WAS HIS BEST JUDGMENT AS TO THE BEST STRATEGY TO EMPLOYEE. ISN'T THIS A BASK CASE AFTER VERY EXPERIENCED DEFENSE LAWYER MAKING A STRATEGY DECISION, AND THAT WHAT IS WHAT THE JUDGE FOUND IN THIS CASE, AND WE HAD AN EVIDENTIARY HEARING AND THE JUDGE WEIGHED THE CREDIBILITY OF THE WITNESSES AND MADE THAT FACTUAL FINDING?

WELL, YOUR HONOR, YES. DEFENSE COUNSEL TESTIFIED THAT IT WAS HIS STRAT EDGE TOY DO THAT. BUT THE QUESTION IS NOT IN THIS TYPE OF A CASE, IS NOT MERELY WHETHER DEFENSE COUNSEL CALLS HIS DECISION STRATEGY. IT IS WHETHER IN LIGHT OF THE CIRCUMSTANCES OF THAT CASE, COUNSEL'S DECISION, COUNSEL'S ACTOR OMISSION, FELL OUTSIDE THE BOUNDS OF COMPETENT ASSISTANCE, AND IN THIS CASE, IN 1981, ESSENTIALLY THE SAME MENTAL MITIGATION WAS PRESENTED. BUT IT WAS PRESENTED ONLY BY THE DEFENSE. THE PROSECUTION DID NOT PRESENT THEIR OWN WITNESS TO CONTROVERT ANY PEDOPHILIA AS MITIGATION. COUNSEL TESTIFIED AT THE EVIDENTIARY HEARING THAT HE FELT THAT THE 1981 PENALTY PHASE WAS UNSUCCESSFUL. COUNSEL TESTIFIED THAT HE KNEW THAT THE STATE WOULD, THEN, BE ABLE TO ELICIT INFORMATION ABOUT LARRY MANN'S ADJUDICATION FOR SEXUAL ASSAULT ON A CHILD, AND THAT IT WOULD NOT BE ADMISSIBLE, AND HE ANTICIPATED THAT THE STATE WOULD TRY TO USE THAT AGAINST LARRY MANN, MAYBE AS A NONAGGRAVATING CIRCUMSTANCE, BUT THAT DECISION, WHETHER HE DECIDES TO CALL IT STRATEGY, THAT DECISION, IN COMBINATION WITH THE FACT THAT HE TESTIFIED THAT HE THOUGHT THE STATE WOULD BE ABLE TO INTRODUCE EVIDENCE OF PEDOPHILIA, EVEN IF HE DID NOT INTRODUCE IT, THAT WAS NOT A DECISION, IN LIGHT OF THE CIRCUMSTANCES OF THIS CASE, THAT DECISION FELL OUTSIDE THE BOUNDS OF REASONABLY COMPETENT ASSISTANCE. AND MOREOVER, COUNSEL'S DECISION TO PRESENT PEDOPHILIA AS A MITIGATING CIRCUMSTANCE PREJUDICED LARRY MANN'S CASE TO THE EXTENT THAT IT ABSOLUTELY DEVASTATED LARRY MANN'S PENALTY PHASE. IN THIS, WHEN COUNSEL INTRODUCED PEDOPHILIA AS A MITIGATING CIRCUMSTANCE, COUNSEL HANDED THE STATE THEIR MOST POWERFUL AGGRAVATING ARGUMENT. IN THIS CASE THERE WAS ABSOLUTELY NO INDICATION OF SEXUAL ASSAULT. HOWEVER, WHEN DEFENSE COUNSEL TOLD THE JURY THAT NOT ONLY DID LARRY MANN KILL THIS CHILD, HE KILLED HER BECAUSE HE WANTED TO RAPE HER OR SEXUALLY ASSAULT HER AND THIS WAS NOT HIS FIRST INSTANCE OF SILKSULE ASSAULT ON A CHILD -- OF SEXUAL ASSAULT ON A CHILD, DEFENSE COUNSEL CHANGED THE ENTIRE PENALTY PHASE CASE FROM THE EXTENUATING CIRCUMSTANCES TO LARRY MANN'S PEDOPHILIA AND MENTAL ILLNESS. LARRY MANN'S PEDOPHILIA AND MENTAL ILLNESS HAD ABSOLUTELY NO PLACE IN THE DETERMINATION OF WHETHER HE SHOULD LIVE OR DIE, BECAUSE THERE WAS NO INDICATION OF SEXUAL ASSAULT IN THIS CASE. THIS PREJUDICED LARRY MANN, BECAUSE IT GAVE THE STATE THE OPPORTUNITY TO ARGUE THAT, IN THE COURSE OF A KIDNAPPING, AGGRAVATING CIRCUMSTANCE, SHOULD BE CONSIDERED MORE WEIGHTY, BECAUSE LARRY MANN TOOK THIS GIRL, BECAUSE HE WAS HAVING SEXUAL URGES. THIS PREJUDICED LARRY MANN, BECAUSE IT GAVE THE PROSECUTION THE OPPORTUNITY TO ARGUE TO THE JURY THAT, WHEN WEIGHING THE AGGRAVATING AND MITIGATING CIRCUMSTANCES, THERE WAS NO EVIDENCE THAT LARRY MANN DID NOT SEXUALLY ASSAULT THIS GIRL, AND THE RECORD CLEARLY SHOWS THAT THE JURY DID CONSIDER PEDOPHILIA AND THE PROSECUTION'S ARGUMENT THAT THE JURY SHOULD CONSIDER THAT LARRY MAN DID NOT SEXUALLY ASSAULT THIS GIRL, BECAUSE THE JURY ASKED THE COURT, DURING DELIBERATIONS, WAS THIS VICTIM EVER EXAMINED FOR SEXUAL ASSAULT OR RAPE, AND WAS THE VICTIM OF LARRY MANN'S 1969 JUVENILE ADJUDICATION EVER EXAMINED FOR BEING RAPED? THIS SHOWS THAT THE JURY DID CONSIDER THE PEDOPHILIA TO BE A NEGATIVE AGGRAVATING TYPE OF A CIRCUMSTANCE, AND THAT THEY DID SERIOUSLY CONSIDER IT DURING THEIR DELIBERATIONS. COUNSEL'S DECISION TO PRESENT PEDOPHILIA, ALSO, PREJUDICED LARRY MANN, BECAUSE IT PROVIDE THE THE BASIS FOR THE STATE'S SUCCESSFUL ARGUMENT FOR THE COURT TO HAVE ALLUDE AND LASCIVIOUS ASSAULT ON A MINOR TO THE KIDNAPPING CHARGE THIS. PROVIDED SOME SUPPORT TO THE PROSECUTOR'S ARGUMENT THAT THE JURY CONSIDER THAT LARRY MANN MIGHT HAVE, IN WEIGHING THE AGGRAVATING CIRCUMSTANCES, THAT THE JURY CONSIDERED THAT THERE WAS NO EVIDENCE THAT LARRY MANN DID NOT SEXUALLY ASSAULT THIS GIRL. COUNSEL'S DECISION TO PRESENT PEDOPHILIA PREJUDICED LARRY MANN BECAUSE IT PROVIDED INFORMATION TO LARRY MANN'S ADJUDICATION ABOUT JUVENILE ADJUDICATION OF SEXUAL ASSAULT ON A MINOR AND THIS WOULD HAVE BEEN INADMISSIBLE, BUT FOR THE DEFENSE COUNSEL TO PRESENT TESTIMONY. IT GAVE THE STATE OPPORTUNITY TO ELICIT FROM THE DEFENSE EXPERT THAT LARRY MANN HAD SEXUAL FANTASIES ABOUT CHILDREN AND THAT HE MAKES TOUR BAITED TO THE SEXUAL FANTASIES. THIS PREJUDICED THE DEFENSE, AGAIN, BECAUSE THE STATE ARGUED THAT LARRY MANN USED THE SEXUAL FANTASIES AND MASTURBATION TO TEACH HIMSELF TO BE A PEDOPHILE AND TO TEACH HIMSELF TOLL PREY ON CHILDREN.

AREN'T YOU EXERCISING, THOUGH SORT OF AN ANALYSIS THAT THE SUPREME COURT, IN INITIALLY DECIDING STRICKLAND, HAS REALLY SAID WE SHOULDN'T DO, AND THAT IS MONDAY MORNING QUARTERBACKING AND ISN'T THERE A RATIONALE OTHER SIDE TO THE ATTORNEY'S DECISION, AND THAT IS TO SAY, IN A CRIME OF WHICH HE CAN'T COME UP WITH ANYTHING, TO DEFEND HIS CLIENT, THAT AT LEAST HE IS GOING TO TRY TO COME UP AND SAY IT IS REALLY BECAUSE OF A SEVERE MENTAL ILLNESS, AND IT IS BETTER TO PUT THIS MAN AWAY WHERE HIS MENTAL ILLNESS CAN BE TREATED OR WHATEVER, AND NOT TO TAKE HIS LIFE FOR THE CRIME. BUT HE DIDN'T HAVE ANYTHING, OTHERWISE, TO PRESENT TO THIS JURY, DID HE?

COUNSEL DID NOT INVESTIGATE ANYTHING ELSE TO PRESENT TO THIS JURY. COUNSEL DID NOT HIRE AN EXPERT WHO COULD INVESTIGATE, LIKE, SUCH AS A NEUROPHARMACOLOGIST THE, WHO COULD INVESTIGATE --

HE DID HAVE MENTAL HEALTH EXPERTS EXAMINE THE DEFENDANT, AND THAT IS WHERE ALL OF THIS INFORMATION CAME TO THE LAWYER, ISN'T IT?

THIS COUNSEL JUST HAD DR. CARBONEL, WHO HAD ALREADY GUN WORKING ON THIS CASE FOR THE CCC, TO HAVE HER WORK ON THE CASE. HE DID NOT HIRE SOMEBODY ELSE TO INVESTIGATE POSSIBLE BRAIN DAMAGE. HE DID NOT HIRE A SUBSTANCE ABUSE EXPERT TO INVESTIGATE THE POSSIBLE IMPAIRMENT THAT HIS SUBSTANCE ABUSE --

WHAT DID THIS EXPERT TELL HIM THAT WOULD HAVE SUGGESTED TO HIM THAT HE HIRE SOME OTHER KIND OF EXPERT?

THIS EXPERT TOLD HIM THAT SHE PERFORMED NEUROPSYCHOLOGICAL TESTS, AND HE APPEARED MOSTLY TO BE OKAY, BUT THIS EXPERT DID NOT PERFORM TESTS OR DO A REVIEW OF THE RECORDS FROM WHICH HE COULD DETERMINE WHETHER LARRY MANN SUFFERED SOME NEUROLOGICAL IMPAIRMENT. IN 1980, AT THE TIME OF THE CRIME, DUE TO HIS EXCESSIVE ALCOHOL AND DRUG USE.

THE TRIAL JUDGE, IN THE SENTENCING, FOUND THAT THE MAN SUFFERED FROM PSYCHOTIC DEPRESSION. THAT HE HAD A LONG HISTORY OF ALCOHOL AND DRUG DEPENDENCY. I MEAN, THOSE WERE FOUND TO BE NONSTATUTORY MITIGATION ON THE BASIS OF THE RECORD THAT WAS PRESENTED THERE. IS THAT CORRECT?

YES. THE JUDGE DID FIND THAT TO BE NONSTATUTORY MITIGATION THAT WAS PRESENTED, BUT COUNSEL, THROUGH DR. CARBONEL, THE ONLY EXPERT CONSULTED, PRESENT ADD BRIEF OVERLAY OF LARRY MANN'S HISTORY OF SUBSTANCE ABUSE. SHE BASICALLY TESTIFIED THAT HE HAD A HIGH SCORE, ON THE MMPI FOR ALCOHOLISM. THAT SHE KNEW HE WAS AN ALCOHOLIC AND THAT HE A HISTORY OF SUBSTANCE ABUSE. SHE DID NOT EXPLAIN THE HISTORY OF SUBSTANCE ABUSE, AND SHE DID NOT PERFORM ANY TESTS FROM WHICH SHE COULD DETERMINE BRAIN IMPAIRMENT AT THE TIME OF THE CRIME, BEYOND HE WAS AN ALCOHOLIC. THAT IS BASICALLY ALL SHE TESTIFIED TO.

I THOUGHT SHE TESTIFIED, IN ADDITION TO THAT, AS FAR AS HER TEST RESULTS WERE CONCERNED, THAT THEY DID NOT SUGGEST THAT THERE MAY BE SOME BRAIN DAMAGE.

YES. SHE SAID THAT THERE DID NOT SUGGEST BRAIN DAMAGE AT THIS TIME, BUT SHE DID NOT HAVE THE CAPABILITY TO -- WELL, I DON'T KNOW IF SHE HAD THE CAPABILITY, BUT SHE DID NOT LOOK RETROACTIVELY AND ASK WHETHER LARRY MANN HAD BRAIN JURY, WHETHER THERE WERE INDICATIONS OF BRAIN JURY AT THE TIME OF THE CRIME, AND MAYBE BECAUSE HE HAD BEEN IN PRISON FOR TEN YEARS, HIS BRAIN HAD DRIED OUT AND SOMEHOW --

IT IS NOT UNREASONABLE, THOUGH, FOR ONE PROFESSIONAL, THE LAWYER, TO RELY ON ANOTHER PROFESSIONAL, THE MENTAL HEALTH EXPERT, TO REALLY GIVE THE BASIC INFORMATION OR LEADS ABOUT MENTAL HEALTH PROBLEMS S THAT AN UNREASONABLE CHOICE THAT A LAWYER MAKES? THAT IS TO GO DO BECAUSE ARE SUGGESTING. THAT IS TO GET A MENTAL HEALTH EXPERT TO SAY WHAT SHOULD WE DO, AND IF THE MENTAL HEALTH EXPERT COMES BACK AND SAYS THIS IS ALL WE CAN DO IN THIS PARTICULAR CASE AND THAT IS WHAT MY ADVICE IS TO YOU, HOW IS THAT OUT OF A REASONABLE RANGE OF ACTIVITY BY A LAWYER, TO ACCEPT THAT OTHER PROFESSIONAL'S OPINION IN THAT PROFESSIONAL'S SCOPE?

IN THIS CASE, IT WAS UNREASONABLE, BECAUSE HE KNEW DR. CARBONEL WAS NOT AN EXPERT IN NEUROLOGICAL AND NEUROFARM LOGICAL TESTIMONY -- NEUROFARM COLOGICAL TESTIMONY. HE, ALSO, KNEW, AT THE TIME THAT HE RELIED ON THIS COUNSEL, THAT HE FELT THAT THE 1981 PENALTY PHASE WAS UNSUCCESSFUL, YET HE PRESENTED ESSENTIALLY THE SAME MENTAL MITIGATION THAT WAS PRESENTED IN 1981. HE KNEW, AT THE TIME, THAT RELYING ON PEDOPHILIA AS A MITIGATING CIRCUMSTANCE, THAT IT WAS NOT A REASONABLE THING TO DO.

WHAT WAS HIS EXPLANATION ABOUT THAT, IF HE KBAF ONE IN TESTIMONY-POE IF HE GAVE ONE IN TESTIMONY?

HE TESTIFIED THAT HE PRESENTED PEDOPHILIA, IN PART TO PREEMPT THE STATE, AND ALSO HE FELT THAT HE WANTED TO EXPLAIN THE CRIME TO THE JURY, WHY THAT HAPPENED. AGAIN, IN LIGHT OF THE CIRCUMSTANCES OF THIS CASE, THAT THERE IS ABSOLUTELY NO INDICATION OF SEXUAL ASSAULT. THAT COUNSEL KNEW THAT THAT TESTIMONY HAD BEEN PRESENTED IN 1981, AND THAT THE JURY, STILL, RECOMMENDED A DEATH SENTENCE, A AND THAT THE TRIAL COURT FOUND THAT IT DID NOT RISE TO THE LEVEL OF STATUTORY MITIGATION, AND THAT COUNSEL KNEW THE STATE WOULD, THEN, BE ABLE TO ELICIT INFORMATION ABOUT LARRY MANN'S JUVENILE ADJUDICATION, AND THAT IS THE STATE WOULD BE ABLE TO MAKE EXTENSIVE ARGUMENT OF THIS, TO REFUTE THIS MITIGATING CIRCUMSTANCE. COUNSEL'S DECISION WAS UNREASONABLE, IN LIGHT OF THE CIRCUMSTANCES OF THIS CASE.

DID THE LAWYER TESTIFY THAT HE MADE THE DECISION ALONE OR DID HE CONSULT WITH OTHER LAWYERS OR ANYBODY ELSE OR THE MENTAL HEALTH EXPERT, OR WAS THERE -- TELL ME ABOUT THAT?

COUNSEL TESTIFIED AT THE EVIDENTIARY HEARING THAT HE MADE THIS DECISION BY CONSULTING WITH HIS COCOUNSEL ON THE CASE. COUNSEL, ALSO, TESTIFIED AT THE EVIDENTIARY HEARING, THAT HE CONSULTED LARRY MANN'S PRIOR ATTORNEYS AND OTHER PEOPLE, DEFENSE LAWYERS AT THAT TIME, BUT HE DID NOT SPECIFICALLY SAY THAT HE CONSULTED THEM AND ASKED THEM WHETHER TO PRESENT PEDOPHILIA WAS A GOOD IDEA. HE NEVER TESTIFIED TO THAT. HE JUST TESTIFIED THAT HE DISCUSSED THAT WITH HIS COCOUNSEL. HE TESTIFIED, GENERALLY, THAT HE TALKED TO OTHER PEOPLE IN THE COMMUNITY. THE LAWYER QUALIFIED AS AN EXPERT WITNESS IN CAPITOL CASES, WHO TESTIFIED AT LARRY MANN'S PENALTY PHASE, TESTIFIED THAT, BECAUSE SOCIETY DECEMBER POOIZ PEDOPHILES SO MUCH, BECAUSE THERE IS A SPECIAL STIGMA ASSOCIATED WITH PEDOPHILIA THAT IS NOT ASSOCIATED WITH ANY OTHER TYPE OF MENTAL ILLNESS, AND THAT IS EVIDENCED BY THE FACT THAT SEXUAL BATTERY ON A CHILD UNDER 12 A -- 12 IS A CAPITAL CRIME IN FLORIDA AND EVERY TIME A CONVICTED CHILD MOLESTER MOVES INTO A NEIGHBORHOOD, EVERY NURSERY SCHOOL AND SCHOOL IS PROVIDED WITH HIS PICTURE. BECAUSE THE STATE WOULD NOT HAVE BEEN ABLE TO INTRODUCE TESTIMONY REGARDING LARRY MANN'S PEDFEELIA, AND BECAUSE THE STATE HAD GOOD NONSTATUTORY MITIGATION AVAILABLE TO IT, THERE IS A REASONABLE PROBABILITY THAT IT AFFECTED THE OUTCOME IN LARRY MANN'S CASE. DESPITE THE FACT THAT COUNSEL CHOSE TO PRESENT PEDOPHILIA AND THAT HE DID SO BECAUSE HE DID NOT UNDERSTAND THE LAW AT THE TIME IT HAPPENED, AND HE DID SO EVEN THOUGH IT WAS THE WRONG DEFICIENT DECISION, IN LIGHT OF THE CIRCUMSTANCES OF HIS CASE, AND DESPITE THE FACT THAT THIS MADE PEDOPHILIA THE FOCUS OF THE CASE AND THE FACT THAT IT INTRODUCED A NUMBER OF PREJUDICIAL ELEMENTS THAT WOULD NOT HAVE BEEN INTRODUCED, BUT FOR THE PEDOPHILIA TESTIMONY, AND TEST BY THE THE FACT THAT THE STATE COULD ARGUE IT EXTENSIVELY THROUGHOUT THE CASE, THREE OF THE 12 USERS VOTED FOR A LIFE RECOMMENDATION FOR LARRY MANN. HAD PEDOPHILIA NOT VOTED -- HAD PEDOPHILIA NOT BEEN PRESENTED, IT IS POSSIBLE THAT THREE ADDITIONAL JURORS WOULD NOT HAVE VOTED FOR DEATH IN THE CASE.

THAT IS SPECULATION. IT IS, ALSO, POSSIBLE THAT TREATING THE MENTAL ILLNESS CAUSED PEOPLE TO VOTE THAT HE SHOULD BE TREATED BY SPENDING HIS LIFE IN PRISON. WE DON'T KNOW. THAT.

THE JURORS DID NOT VIEW THE PEDOPHILIA MERELY AS A MENTAL ILLNESS. THEY WERE ASKING WHETHER THIS VICTIM AND HIS JUVENILE ADJUDICATION VICTIM HAD BEEN RAPED. THIS SHOWS THAT THE JURY DID CONSIDER IT IN A NEGATIVE LIGHT, AND IF THERE ARE NO FURTHER QUESTIONS AT THIS TIME, I WOULD LIKE TO SAVE MY REMAINING TIME FOR REBUTTAL.

YOU MAY DO SO. THANK YOU. MISS DITTMAR.

GOOD MORNING, YOUR HONORS. MAY IT PLEASE THE COURT. I AM CAROL DITTMAR FROM THE ATTORNEY GENERAL'S OFFICE, REPRESENTING THE APPELLEE IN THIS CASE, THE STATE OF FLORIDA. THIS IS, INDEED, A CLASSIC CASE OF AN ATTORNEY MAKING A STRATEGIC DECISION DURING THE COURSE AFTER RESENTENCING PROCEEDING, WHICH COLLATERAL ATTORNEYS COME BACK LATER AND CHALLENGE THE REASONABLENESS OF. IN THIS CASE, IT IS CLEAR THAT THIS WAS AN INFORMED STRATEGIC DECISION. IT IS NOT THE ROLE OF THIS COURT. IT REALLY WASN'T THE ROLE OF THE TRIAL JUDGE TO DEBATE THE RELATIVE WORTH OF THE MITIGATION THAT WAS PRESENTED. THE QUESTION WAS DID THE ATTORNEY DO A DECENT JOB? DID HE INVESTIGATE. DID HE KNOW THE LAW. DID HE PRESENT MITIGATION THAT HE FELT WAS IN THE BEST INTEREST OF HIS CLIENT, AND CERTAINLY ON THE EVIDENCE THAT WAS PRESENTED AT THE EVIDENTIARY HEARING, IT IS UNDISPUTEABLE THAT THAT IS EXACTLY WHAT DAVID PERRY DID IN HIS REPRESENTATION OF MR. MANN. HE EXPLAINED THAT HE GREATLY CONSIDERED WHETHER OR NOT TO PRESENT MENTAL HEALTH MITIGATION. HE FELT LIKE THERE WAS A LOT OF OTHER VALUABLE MITIGATION AVAILABLE, BECAUSE MR. MANN HAD BEEN IN PRISON ON DEATH ROW FOR TEN YEARS SINCE HIS NIFERBL INITIAL SENTENCE -- SINCE HIS INITIAL SENTENCINGS. HE FELT THAT THE POSITIVE CHANGES MR. MANN HAD MADE WITH HIS LIFE SHOULD BE PRESENTED AT THE SENTENCING AND IN FACT IT WAS. THOSE POSITIVE ASPECTS WENT TO THE PRESENTMENT MADE TO THE JURY AT THE SENTENCING. HE FELT THAT WAS PART THE REASON FOR WANTING TO PUT ON THE MENTAL HEALTH TESTIMONY. HE, ALSO, TESTIFIED THAT HE FELT IT WAS EXTREMELY IMPORTANT TO PROVIDE JURORS WITH AN EXPLANATION IN EVERY CASE, AS TO WHY THE CRIME OCCURRED. HE SAYS HE FEELS THIS WAY BECAUSE OF HAVING TALKED WITH AND SPOKEN WITH JURORS AND DOING JURY POLLING. HIS INDICATION IS THAT JURORS WANT TO KNOW WHY A CRIME OCCURRED. I CAN IT IS MISREPRESENTATION THAT HE TESTIFIED THAT HE FELT THE STATE WOULD HAVE PRESENTED THE EVIDENCE IF HE HADN'T. I DO NOT GET THAT FROM HIS TESTIMONY AT ALL AND I DON'T RECALL ANYTHING ABOUT THE TESTIMONY THAT WOULD LEAD TO THAT INFERENCE. I THINK WHAT HE SAID WAS THAT JURORS MIGHT HAVE REACHED THAT CONCLUSION, EITHER BECAUSE THEY MIGHT HAVE SPECULATED THAT THERE WAS A SEXUAL MOTIVE FOR THE CRIME OR BECAUSE OF OTHER EVIDENCE THAT WAS PRESENTED MIGHT SUGGEST THE SEXUAL NATURE. HE FELT LIKE THE MERE FACT OF AN ADULT MAN SNATCHING A TEN-YEAR-OLD GIRL OFF HER BIKE AND KIDNAPPING HER, THAT JURORS ARE GOING TO WONDER IF THERE WASN'T SOME SORT OF SEXUAL MOTIVE BEHIND IT, SO THAT SPECULATION WAS GOING TO BE OUT THERE. IN ADDITION, THERE WAS THE PRIOR RAPE. HE HAD A PRIOR CONVICTION, WHICH WAS FULLY ADMISSIBLE, WHICH, REALLY, HASN'T BEEN CHALLENGED, OF A SEXUAL CRIME. HE, ALSO, HAD, IN HIS LETTERS TO A NUN, WHO TESTIFIED IN HIS DEFENSE ABOUT THESE TEN YEARS THAT HE HAD BEEN IN PRISON. HE HAD WRITTEN HER 399 LETTERS. SOME OF THOSE LETTERS, HE REVEALED THAT HE HAD A SEXUAL MOTIVE FOR THE CRIME. THOSE WERE ADMITTED INTO EVIDENCE. BECAUSE OF THIS OTHER EVIDENCE, DAVID PERRY FELT LIKE YOU EITHER HAD TO SNEAK AROUND THE BACK DOOR, AND DEPENDING ON TO WHAT EXTENT THE JURY WAS GOING TO BE ABLE TO REACH THIS SPECULATION AND LOOK AT THE EVIDENCE ABOUT THE NATURE OF THIS CRIME, YOU, EITHER, HAD TO PUT HIS OWN EXPERT ON TO EXPLAIN IT AND FACE IT STRAIGHT UP, OR YOU ARE GOING TO HAVE TO REACT TO IT. I THINK, WHAT HE DID WAS COMMENDABLE. I THINK IT IS AS TOUNDING THAT HE WASABLE TO GET THREE VOTES ON A LIFE FOR THIS CASE. IT WAS PRETTY MUCH MITIGATION. NO BRAIN DAMAGE. FOR REAL EXPLANATION FOR WHY THIS HAD TO HAPPEN AND THE EGREGIOUS FACTS OF THIS CASE. THE SUGGESTION THAT HE DID NOT INVESTIGATE THAT HE MERELY ADOPTED DR. CARBONEL AND PRESENTED WHAT DR. CARBONEL HAD IS CLEARLY REFUTED BY THE RECORD. HE HAD, IN THIS CASE, NOT ONLY AVAILABLE TO HIM HIS OWN INVESTIGATION, AND HE DID TALK ABOUT HOW HE SPOKE WITH WITNESSES. HOW HE SPOKE WITH NOT ONLY THE FAMILY WITNESSES, HOW HE SPOKE WITH PSYCHIATRISTS AND PSYCHOLOGISTS. HE HAD A RECORD THAT HAD BEEN DEVELOPED OVER A NUMBER OF YEARS. HAD HE THE PRIOR, THE ORIGINAL SENTENCING, WHICH THE DEFENSE ATTORNEYS FROM THE ORIGINAL SENTENCING WERE STILL AVAILABLE, AND HE SAID HE CONSULTED WITH THEMES EXTENSIVELY. HE CAN -- WITH THEM EXTENSIVELY. HE CONSULTED WITH THEM ABOUT THE EVIDENCE THAT THEY HAD PREBTED. HE, ALSO, HAD THE EVIDENCE EVIDENCE DEVELOPED THROUGHOUT MR. MANN'S PROS THE -- POSTCONVICTION PROCEEDINGS LEADING UP TO EVERYTHING THAT WAS DONE BY THE ELEVENTH CIRCUIT WHETHER EVERYTHING BY THE REPRESENTATION WAS CHALLENGED. HAD THE MENTAL HEALTH TESTIMONY THAT WAS PRESENTED AT THE INITIAL TRIAL, WHICH WAS DR. FIREMAN'S TESTIMONY. THERE WERE, ALSO, OTHER MENTAL HEALTH EXPERTS THAT HAD SEEN MR. MANN. DOCTOR MARINE, DOCTOR CHAMBERS -- DR. MARIN, DOCTOR CHAMBERS, DR. CARBONEL, WHO HAD MET WITH EMEXTENSIVELY, AND OTHER EVIDENCE USED. THERE WAS NOTHING THAT ANYTHING IN THE AREA OF MENTAL HEALTH WOULD BE HELPFUL TO MR. MANN, AND HE HASN'T IDENTIFIED ANYTHING ELSE THAT COULD HAVE BEEN DISCOVERED, IN ANY FURTHER INVESTIGATION HAD BEEN DONE. I THINK THE ATTEMPT TO USE THE QUESTIONS THAT THE JURORS ASKED TO SAY THAT THIS SHOWS THEY TOOK THIS TESTIMONY NEGATIVELY IS JUST PURE SPECULATION. I THINK THAT ALL JUROR QUESTIONS WE DON'T KNOW WAFTS IN THEIR -- WHAT WAS IN THEIR MIND AND WHY THEY ASKED THE QUESTIONS AND YOU CAN ARGUE THAT ANY WAY YOU WANT TO ARGUE THEM. CERTAINLY THERE WAS NO TESTIMONY ABOUT RAPE OF EITHER THIS VICTIM OR THE VICTIM OF THE CHILDHOOD FONDLING INCIDENT, AND IF THE JURORS ASKED THAT QUESTION AND WE ARE TOLD TO RELY ON THEIR MEMORY AND THEIR MEMORY IS THERE WAS NO EVIDENCE OF IT, THIS WOULD SEEM TO BE IN MR. MANN'S FAVOR. THEY WERE GIVING CONSIDERATION OF IT. THEY SHOULD DO THAT, THINK ABOUT THE MITIGATION AND TRY TO DECIDE HOW IT SHOULD FIT INTO THE CASE. IT IS NOT THERE FOR THEM TO IGNORE.

THIS CASE WAS REVERSED AND SENT BACK FOR A RESENTENCING ON A CALDWELL ERROR?

THAT'S CORRECT, YOUR HONOR.

WHAT WAS THE VOTE OF THE FIRST JURY?

WE DON'T KNOW. IN 1981, THE JURORS WERE NOT REQUIRED TO REVEAL. IT JUST SAYS BY MAJORITY VOTE ON THEIR VERDICT, AND WHEN THEY WERE POLLED, THEY JUST SAID BY MAJORITY VOTE, SO WE DON'T HAVE THE ACTUAL VOTE TO COMPARE. ALL WE KNOW IS THAT, IN THIS CASE IT WAS 9-3. BUT CLEARLY THE TRIAL --

DR. FIREMAN TESTIFIED IN THE FIRST TRIAL.

YES, YOU DID. DR. FIREMAN TESTIFIED AND, REALLY, HIS TESTIMONY WAS QUITE BRIEF, AS COMPARED TO DR. CASH NECESSARILY'S TESTIMONY. -- DR. CARBONEL'S TESTIMONY. HIS TESTIMONY WAS VERY LIMITED. HE FELT THAT MR. MANN COULD BENEFIT SOCIETY BY BEING KEPT ALIVE FOR RESEARCH PURPOSES AND TO BE STUDIED. HE TESTIFIED THAT HE FELT LIKE MR. MANN'S SUICIDE ATTEMPT WAS ALREADY SET IN PLACE PRIOR TO THIS INCIDENT AND THAT BASICALLY THE VICTIM IN THIS CASE WAS MERELY INNOCENTLY INTERRUPTED HIS PLANS TO COMMIT SUICIDE AND HE HAD RAGE BECAUSE OF THAT AND TOOK IT OUT ON HER. DR. FIREMAN REALLY DIDN'T GO INTO THE ALCOHOLIC IDEAS THAT DR. CARBONEL EXPOUNDED UPON. WITH DR. CARBONEL, HIS SUBSTANCE AND ALCOHOLIC ABUSE, COMBINED WITH PEDOPHILIA, AND THAT IS WHAT GAVE RISE TO WHAT HE LED TO BELIEVE WAS THE STATUTORY MENTAL MITIGATORS APPLYING THIS IN CASE. SHE PUT GREAT WEIGHT ON THE FACT THAT HE TOLD HER HE WAS INTOXICATED AT THE TIME OF THE CRIME, AND THAT WAS ONE REASON WHY THE JUDGE DISCOUNTED THE STATUTORY MENTAL MITIGATION, BECAUSE THERE WASN'T EVIDENCE OF THAT INTOXICATION WHICH SUPPORTED THAT, BUT I THINK ON THIS RECORD, CLEARLY WHEN YOU REVIEW THE EVIDENTIARY HEARING, THE TRIAL COURT VERY CAREFULLY CONSIDERED EVERYTHING THAT WAS PRESENTED TO HIM AND MADE THE FINDING THAT NO DEFICIENCY OR PREJUDICE HAD BEEN SHOWN AND PROPERLY DENIED THE CLAIM, SO I WOULD ASK THIS COURT TO DENY THE 3.850 MOTION.

MAY IT PLEASE THE COURT.

YES.

IN 1981, DR. FIREMAN TESTIFIED THAT LARRY MANN'S PEDOPHILIA AND FEELINGS INADEQUACY COMBINED IN AN UNCONTROLLABLE RAGE WHICH RESULTED IN THIS CRIME. IN 1990, DR. CARBONEL TESTIFIED THAT LARRY MANN'S PEDOPHILIA, FAMILY PROBLEMS AND ALCOHOL CONSUMPTION, CAN KOMING BIND TO CREATE A -- COMBINED TO CREATE AN UNCONTROLLABLE URGE WHICH RESULTED IN THIS CRIME. IT WAS FOUND TO LEAD TO MENTAL MITIGATION CIRCUMSTANCES, PRESENTED IN 1981 AND 1990, WERE REMARKABLY SIMILAR AND THE CAUSE OF THE CRIME AND THAT BOTH RESULTED IN THE CRIME AND THE STATUTORY MENTAL MITIGATING CIRCUMSTANCES. IN BOTH CASES THERE WAS NOTHING BUT PEDOPHILIA MENTAL MITIGATION. LARRY MANN BLOSSOMED IN PRISON. DURING HIS TIME IN PRISON, LARRY MANN BECAME A VERY UNUSUAL CANDIDATE FOR A DEATH PENALTY. LARRY MANN DEVELOPED HIS INTELLECTUAL ABILITIES. LARRY MANN CULTIVATED HIS ARTISTIC ABILITIES. LARRY MANN TAUGHT HIMSELF TO LEARN GREEK. LARRY MANN BECAME A BIBLICAL SCHOLAR AND HELPED HELPED OTHERS ON DEATH ROW STUDY THE BIBLE. LARRY MANN BECAME REMORSE FOR HIS CRIME. EVERYONE WHO KNEW LARRY MANN AND TESTIFIED THAT THEY HAD KNOWN LARRY MANN DURING THE TIME HE HAD BEEN INCARCERATED THAT, LARRY IS AN UNIQUE AND GOOD PERSON WHO, CARES ABOUT PEOPLE. COUNSEL HAD THIS AVAILABLE, THIS VERY POSITIVE MENTAL MITIGATION, OR NOT MENTAL MITIGATION, BUT POSITIVE MITIGATION AVAILABLE THAT PRESENTING ALONE MIGHT HAVE BEEN ENOUGH FOR AT LEAST THREE MORE JURORS TO SAY THIS IS NOT THE TYPE OF PERSON THAT SHOULD BE PUT TO DEATH. AND COUNSEL COULD HAVE PRESENTED ALL OF THIS TESTIMONY AND HAVE NO INDICATION OF PEDOPHILIA COME IN, HAD COUNSEL LIMITED THE SCOPE OF HIS DIRECTION DIRECTION. THIS COURT HELD THAT THAT IS POSSIBLE, WHEN IT REVERSED THE HITCHCOCK CASE IN 1996. THE POSITIVE CHANGE IN HIS LARRY MANN SHOULD HAVE BEEN THE FOCUS OF THE MITIGATION IN THIS CASE. IF COUNSEL DECIDED NOT TO INVESTIGATE SUBSTANCE ABUSE AND ORGANIC BRAIN DAMAGE, BUT WHEN COUNSEL PRESENTED THE SAME MENTAL MITIGATION IN THE SAME METHOD THAT IT FOUND TO BE UNSUCCESSFUL IN 1981, COUNSEL CHANGED THE FOCUS AWAY FROM WHO LARRY MANN IS NOW AND THE POSITIVE CHANGES HE HAS MADE WITH HIMSELF AND CHANGED THE FOCUS TO LARRY MANN'S DEVIANT SEXUAL BEHAVIOR BEFORE HE BECAME THE PERSON HE IS NOW. HAD COUNSEL NOT PRESENTED THE PEDOPHILIA TESTIMONY, WE DON'T KNOW WHETHER THREE MORE JURORS WOULD HAVE DECIDED THAT THIS IS NOT THE TYPE OF MAN NOW THAT DESERVES DEATH. FOR THOSE REASONS AND THOSE OUTLINED IN HIS BRIEFS, LARRY MANN ASKS THIS COURT TO VACATE HIS DEATH SENTENCE, BECAUSE COUNSEL WAS DEFICIENT IN PRESENTING PEDOPHILIA MITIGATION AND THAT THAT DEFICIENT PERFORMANCE MOST LIKELY MADE THE DIFFERENCE BETWEEN LIFE AND DEATH FOR LARRY MANN, AND HE ASKS THE COURT TO REMAND THE CASE FOR A NEW PENALTY PROCEEDING.

THANK YOU AND THANKS TO BOTH OF YOU. WE WILL BE IN RECESS. THE MARSHAL: PLEASE RISE.