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The Real Player files from
Amos oral arguments today
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Amos Lee King, Jr. v. State of Florida
MR. CHIEF JUSTICE
GOOD MORNING AND WELCOME
TO THE SPECIAL ORAL ARGUMENT CALENDAR FOR THE
FLORIDA SUPREME COURT. THE
CASE WE HAVE TO BE HEARD THIS MORNING IS KING
VERSUS STATE. KING VERSUS
MOORE. MR. KILEY.
YOUR HONOR, MAY IT PLEASE
THE COURT. MY NAME IS RICHARD KILEY. I AM EMPLOYED
BY CCRC MIDDLE, AND I REPRESENT
AMOS KING IN THIS ACTION TODAY. I WOULD LIKE TO
FOCUS MY ARGUMENT ON ISSUE
ONE OF THE APPELLANT BRIEF.
IF YOU WOULD BE KIND ENOUGH
TO PUT THAT MIKE BACK IN FRONT OF YOU, WE WOULD
APPRECIATE IT.
I WOULD LIKE TO FOCUS MY
ARGUMENT ON ISSUE ONE. HOWEVER, I WOULD LIKE TO
BRING TO THE COURT'S ATTENTION
ON MONDAY, AT APPROXIMATELY FIVE O'CLOCK, WE
ARGUED FOR A STAY OF EXECUTION
AND THE UNITED STATES SUPREME COURT HAS
ACCEPTED CERTIORARI ON THE
APRENDI ISSUE ON RING VERSUS STATE OF ARIZONA. THE
COURT DENIED THE STAY YESTERDAY
AT FIVE, AND WE ARE FILING A SUPPLEMENTAL BRIF
TODAY APPEALING THAT RULING.
WHY WOULDN'T THAT BE AN APPROPRIATE
ISSUE TO BRING BEFORE THE SUPREME COURT
OF THE UNITED STATES?
WHY WOULDN'T IT?
YES.
I SUBMIT IT WOULD BE, UNDER
BAREFOOT V ESTELL, AND I ALSO SUBMIT TAKE IT WOULD
BE CORRECT ON DIRECT APPEAL,
ACCORDING TO BAREFOOT.
BUT WE HAVE OUT OF THIS COURT PRECEDENT IN MILLS.
YES, YOUR HONOR.
AND THAT CASE WAS TAKEN TO
THE U.S. SUPREME COURT IN CERTIORARI AND DENIED, IS
THAT CORRECT?
THAT'S CORRECT, SIR.
THANK YOU.
JUDGE,ISH EW ONE BEING --
JUDGE, ISSUE ONE BEING DIRECT CONCLUSION THAT THE
VAGINAL SCHWAB WAS DESTROYED
IN 1989. YOUR HONOR, IT IS CLEAR FROM THE
RECORD THAT THE ONLY EVIDENCE
LINKING A TYPE ASECRETOR TO THE CRIME SCENE
WAS THIS SCHWAB.
WHAT ABOUT THE PANTS?
THE PANTS -- WAS THIS SWAB.
WHAT ABOUT THE PANTS?
THE PANTS WERE WORN BY MR.
KING. THEY WERE NEVER RECOVERED, SIR, SO THIS IS
THE ONLY EVIDENCE LINKING
MR. KING, WHERE A TYPE ASECRETOR, WHICH MR. KING
WAS -- A TYPE "A" SECRETOR,
WHICH MR. KING WAS. DOCTOR WOODS STOOD BY WHILE IT
WAS TESTED FOR BLOOD TYPE
ANALYSIS. THEN THE TECHNICIAN GAVE IT BACK TO DR.
WOOD.
I DID UNDERSTAND YOU TO SAY
THAT YOU ARE NOT ALLEGEING A BAD FAITH
DESTROYING OF EVIDENCE,
ARE YOU?
YES, I AM.
YOU ARE? YOU ARE SAYING IT WAS DESTROYED?
IN BAD FAITH.
INTENTIONALLY, TO --
JUDGE, I AM ALLEGING THAT
THIS CASE FALSE UNDER ELLIOTT VERSUS UNITED STATES --
THIS CASE FALLS UNDER ELLIOTT
VERSUS UNITED STATES, CITED IN MY BRIEF AND WE
ARE PREPARED TO DEMONSTRATE
AN OBJECTIVE BAD FAITH ARGUMENT.
WHAT EVIDENCE, WHAT WOULD BE YOUR PROOF OF BAD FAITH?
WELL --
WHAT ARE YOU ALLEGING THAT --
WELL, YOUR HONOR, IN ELLIOTT, IT IS CLEAR AND UNAMBIGUOUS --
WHAT WAS DONE INTENTIONALLY
TO FRUSTRATE JUSTICE, BY DESTROYING THE EVIDENCE
AND THROWING IT AWAY?
WELL, JUDGE, ELLIOTT STATES,
WHEREAS HERE THERE IS -- WHERE, AS HERE, THERE IS
NO EVIDENCE OF ESTABLISHED
PRACTICE WHICH WAS RELIED UPON TO EFFECTUATE THE
DESTRUCTION, AND RELIABLE
DOCUMENTS SHOW THAT THE DESTRUCTION SHOULD NOT
HAVE OCCURRED, AND WHERE
THE LAW ENFORCEMENT OFFICER ACTED IN A MANNER
WHICH WAS EITHER CONTRARY
TO APPLICABLE POLICIES AND THE COMPETENT
SEIZEMENT OF EVIDENCE RESPECTBLY
EXPECTED OF LAW ENFORCEMENT OFFICERS OR
WAS SO UNMINDFUL OF BOTH
AS TO CONSTITUTE THE RECKLESS DISREGARD OF BOTH,
AND THERE IS A SHOWING OF
BAD FAITH REQUIREMENT IN YOUNG BLOOD V TRAMBETA.
WAS THERE ANY STANDARDS AT
THE TIME IN REFERENCE TO THE PRESERVATION OF
EVIDENCE?
YES, THERE WAS, YOUR HONOR.
WHAT WERE THE STANDARDS AND IN THIS CASE HOW WERE THEY OUT OF COMPLIANCE?
THE STANDARD IN 1977 WAS
FLORIDA STATUTE 406.133, WHICH STATES BRIEFLY, IN
REGARD TO DESTRUCTION OF
EVIDENCE, THAT THE MEDICAL EXAMINER COULD EITHER
KEEP IT OR TURN IT OVER
TO LAW ENFORCEMENT OFFICERS, AND LAW ENFORCEMENT,
ACTUALLY THE LEAD DETECTIVE,
THE LEAD DETECTIVE COULD, THEN, PURSUANT TO COURT
ORDER ON AN INTERNAL MEMO,
ORDER DESTRUCTION OF THAT EVIDENCE. THE LAW IS
CLEAR AND UNAMBIGUOUS ON
THIS POINT.
WHAT IS THE STATE'S ANSWER
TO THAT? WE DON'T KNOW WHAT HAPPENED TO IT. IT WAS
JUST LOST. IS THAT THE STATE'S
ANSWER?
JUDGE SHAFER FOUND, AS, IN
HER FINDING OF FACT, THAT THE EVIDENCE WAS
DESTROYED BY DR. WOOD, BETWEEN
THE YEARS 1977 AND 1979, BEFORE MR. KING'S
DIRECT APPEAL WAS EVEN DECIDED.
NOW, IT IS OUR PREMIES THAT THE STATUTE, THE
ONLY STATUTE GOVERNING THE
-- OUR PREMISE THAT THE STATUTE, THE ONLY STATUTE
GOVERNING, ORDERED HIM TO
KEEP IT OR TURN IT OVER TO THE LEAD DETECTIVE. IF DR.
WOOD DESTROYED IT, SHE SHOWED
A RECKLESS DISREGARD FOR THE REASONABLE
EXPECTED OF A MEDICAL EXAMINER.
WAS THIS THE ONLY PHYSICAL EVIDENCE THAT WAS DESTROYED OR IS NOT AVAILABLE?
CORRECT, YOUR HONOR.
SO WAS THERE OTHER EVIDENCE THAT LINKED MR. KING TO THE CRIME SCENE?
NO. NOT TO THE CRIME SCENE. THERE WAS --
TO THE -- WELL, THIS DOESN'T
-- ACTUALLY THIS DIDN'T LINK HIM TO THE CRIME SCENE BUT
TO THE DEFENDANT. IS THERE
-- WHAT ABOUT --
NO, YOUR HONOR. THERE WERE
KNIVES PRESERVED. A KNIFE WHICH WAS USED TO STAB
THE GUARD OF THE CORRECTIONAL
FACILITY WAS COVERED IN TYPE "B" BLOOD. MRS.
BRADY WAS A TYPE "O". THERE
ARE NIGHT GOWNS WITH MRS. BRADY'S BLOOD ON IT.
THERE ARE JACKETS WITH GUARD
McDONOUGH'S BLOOD ON IT. THERE ARE KNOWN
SAMPLES OF MR. KING'S BLOOD
AND MRS. BRADY'S BLOOD STILL IN EVIDENCE TODAY.
FOR YOU TO BE ABLE TO MAKE
A SHOWING UNDER YOUNG BLOOD, YOU ARE SEEKING
THIS EVIDENCE MORE THAN
TWENTY YEARS AFTER THE CRIME OCCURRED,
UNDERSTANDING THIS WAS DESTROYED
WITHIN THE FIRST YEAR OR TWO, BUT THE FIRST
TIME THIS IS BEING SOUGHT
IS TWENTY-PLUS YEARS AFTER THE CRIME OCCURRED. IS
THERE ANYTHING FURTHER THAT
YOU NEED TO SHOW, OTHER THAN IT WAS DESTROYED,
AND IT WAS NOT PURSUANT
TO PROCEDURE? IN OTHER WORDS, THERE HAS TO BE SOME
REASONABLE BASIS IN THE
EVIDENCE, AS TO WHAT THE MOTIVATION OF THE MEDICAL
EXAMINER WOULD HAVE BEEN,
TO NOT HAVE RETAINED THIS EVIDENCE?
WELL, NO, JUDGE. UNDER ELLIOTT,
I HAVE TO SHOW THAT SHE DISREGARDED APPLICABLE
POLICIES OR SHE DEMONSTRATED
A LACK OF COMMON SENSE ASSESSMENT OF
EVIDENCE REASONABLY EXPECTED
OF HER.
I GUESS WHAT I AM LOOKING
FOR IS THERE ANY, FOR EXAMPLE, A SHOWING OF, THAT YOU
HAVE TO MAKE, OF PREJUDICE
IN SOME WAY, TO SHOW THAT IT WAS LIKELY THAT THIS
EVIDENCE COULD HAVE LED
TO EXCULPATORY --
YES. I CAN DO THAT, IF THE
COURT LIKES. JUDGE, THERE WAS A LAB REPORT DATED
MARCH 17, 1977, IN REGARDS
TO THE BLOOD TYPING. NOW, ON THAT REPORT, THERE IS
HANDWRITTEN NOTES BY MARIANNE
HILL WHO, DID THE BLOOD TYPING, SAYING GROSSLY
WHOM ON THISNIZED VERY POTTED,
VERY BLOODY. VERY DIFFICULT TO READ. THAT
SAMPLE WAS SUBJECT TO ATTACK
AT TRIAL, AND WE ARE MAINTAINING THAT, BECAUSE IT
WAS DESTROYED BEFORE MR.
KING'S DIRECT APPEAL WAS EVEN DECIDED, THAT THIS IS A
DUE PROCESS VIOLATION, AND
MR. KING IS ENTITLED TO RELIEVE ON THIS POINT.
DO YOU HAVE TO MAKE A SHOWING
THAT THE EXCULPATORY NATURE OF THE EVIDENCE
WAS KNOWN AT THE TIME OF
ITS DESTRUCTION? IS THAT ONE OF YOUR BURDENS?
I DON'T BELIEVE I HAVE TO
MAKE THE SHOWING, BUT I WILL MAKE THE SHOWING THAT IT
WAS EXCULPATORY INNATE AT
THE TIME. -- EXCULPATORY IN NATURE AT THE TIME. YOUR
HONOR, DR. WOOD WAS AN EXPERIENCED
MEDICAL EXAMINER. SHE KNEW THIS TEST WAS
SUBJECT TO ATTACK BY COMPETENT
TRIAL COUNSEL, YET SHE DESTROYED IT. NOW, YOUR
HONOR, IF COMPETENT TRIAL
COUNSEL AT THE TIME OR EVEN POSTCONVICTION COUNSEL
HAD ATTACKED THE LAB REPORT
SAYING GROSSLY WHOM ON THISNIZED, VERY DIF--
HOMOGENIZ ED, VERY DIFFICULT
TO READ, VERY BLOODY, IT COULD HAVE BEEN ABLE TO
SHOW A TYPE "A" SECRETOR
AT THE TIME.
BUT IT WASN'T RAISED IN ANY
POSTCONVICTION MOTION UNTIL TODAY. NOW YOU ARE
COMING BACK AND SAYING,
BECAUSE THE LAB REPORT IS INCLUSIVE, THAT TRIAL
COUNSEL SHOULD HAVE USED
THAT IN SOME WAY, SO THAT SORT OF TIES IN, TO ME, TO
SAY THAT YOU ARE TRYING
TO RESUSCITATE A POSTCONVICTION INEFFECTIVE
ASSISTANCE OF COUNSEL CLAIM,
AND WE ARE HERE, IN 2 TO YOU 2, ON A CASE THAT -- IN
2002, ON A CASE THAT IS
OVER TWENTY YEARS OLD.
BUT, YOUR HONOR, HISTORICALLY
THIS WHOLE ISSUE CAME ABOUT BY US REQUESTING
DNA TESTING UNDER THE STATUTE.
AND THAT WAS IN WHAT YEAR?
THAT WAS IN WHAT YEAR?
WHAT YEAR WAS THIS FIRST,
THE NATURE OF THIS EVIDENCE FIRST THOUGHT TO BE
SOMETHING THAT COULD BE
AN ISSUE THAT WOULD ASSIST MR. KING?
WELL, WHEN THE DEATH WARRANT WAS SIGNED.
IN THE LAST FEW MONTHS?
YES, MA'AM. HOWEVER, WE HAD
MOVED, MR. KING HAD UNTIL 2003 TO GET THE TESTING.
THE STATE HAD DONE AN INVESTIGATION
BACK IN JULY OF 2001 AND DETERMINED THAT
THIS EVIDENCE WAS DESTROYED.
JUDGE SHAFER, IN HER FINDING OF FACT, DETERMINED
THAT THE EVIDENCE WAS DESTROYED
BETWEEN 1977 AND 1979.
SO YOU HAVE R -- SO YOU WERE
NOT SEEKING THE VAGINAL WASHING SEPARATE AND
APART FROM ANY OF THE --
YOU WERE JUST ASKING FOR ALL OF THE PHYSICAL EVIDENCE
THAT STILL WAS IN EXISTENCE
IN THIS CASE?
NO, JUDGE. WE WERE SPECIFICALLY
ASKING FOR THE VAGINAL WASH AND RECTAL SWAB
FOR DNA TESTING, BECAUSE
THAT WAS THE ONLY EVIDENCE THAT LINKED MR. KING TO
THE CRIME SCENE.
BUT IT WASN'T, AT THE TIME
WHEN IT WAS LINKED, HE WAS LINKED, IT WASN'T BECAUSE
OF DNA TESTING. IT WAS LINKED
BASED ON BLOOD TYPE.
CORRECT, YOUR HONOR.
WHICH WAS REALLY, I MEAN,
SINCE A CERTAIN PERCENTAGE OF INDIVIDUALS HAVE TYPE
"A" BLOOD, IT IS NOT, THIS
IS NOT REALLY, IT IS NOT REALLY DEVASTATING EVIDENCE
AGAINST MR. KING IN THIS
CASE, WAS IT?
JUDGE, I WOULD SUBMIT IT
WAS DAMNING EVIDENCE AGAINST MR. KING IN THIS CASE,
BECAUSE THIS WAS THE ONLY
EVIDENCE THAT PLACED A TYPE "A" SECRETOR AT THE
SCENE, AND AS I SAID, WE
ORIGINALLY, WE ASSUMED THAT THE STATE HAD PRESERVED
THIS EVIDENCE, AS THEY DID
EVERY OTHER PIECE OF EVIDENCE IN THIS CASE. THE ONLY
EVIDENCE WHICH WS NOT PRESERVED
IS THE ONLY EVIDENCE THAT COULD EXONERATE
MR. KING, SO ONCE WE FOUND
OUT THAT THE STATE HAD DESTROYED THIS EVIDENCE, IT
HAS NOW BECOME A YOUNGBLOOD
ISSUE, AND, JUDGE, WE ARE FURTHER BASING OUR
ARGUMENT ON THE FACT THAT
DR. WOOD KNEW THE EXCULPATORY VALUE OF THIS
EVIDENCE, YET SHE DESTROYED
IT.
WHAT IS OUR STANDARD OF REVIEW, AS TO JUDGE SHAFER'S FINDINGS IN THIS REGARD?
DE NOVO REVIEW, YOUR HONOR,
AND PURSUANT TO STEPHENS V STATE THE COURT HAS
TO PLACE GREAT DEFERENCE
TO THE TRIAL COURT'S FINDING OF FACT. WE ARE
CONTENDING, WE HAVE TWO
ALTERNATE THEORIES OF DESTRUCTION. DR. WOOD
DESTROYED IT IN 1977 THROUGH
1979, OR THE SHERIFFS OFFICE DESTROYED IT,
CONTRARY TO THEIR POLICIES,
IN 1987 AND 1988 RESPECTIVELY. WE ARE SEEKING THE
PRODUCTION OF THE VAGINAL
WASH, WHICH INDICATED THE PRESENCE OF ACID
PHOSPHOTASE OR THE TYPE
OF BLOOD RATHER, AND THE VAGINAL WASH, WHICH
INDICATED THE TYPE OF ACID
PHOSPHOTASE. JUDGE, THIS WAS NOT SOMEONE WHO WAS
NOT INVOLVED IN THIS CASE
AND WAS NOT AWARE OF THE EXCULPATORY VALUE IN THIS
CASE AT THE TIME OF THE
DESTRUCTION. THIS CASE IS UNIQUE. DR. WOOD TESTIFIED AT
TRIAL THAT A TYPE "A" SECRETOR
WAS THE INDIVIDUAL THAT RAPED AND MURDERED MRS.
BRADY. ALL THE CASES CITED
BY COUNSEL. VERA, KELLY, ANY, ALL THE CASES IN
COUNSEL'S BRIEF WAS, WERE
INVOLVED INDIVIDUALS THAT KNEW NOTHING ABOUT THE
CASE AND DESTROYED THE EVIDENCE.
IN ELLIOTT, IT SETS OUT A STANDARD, BUT MORE
IMPORTANTLY, DR. WOOD WAS
NOT AN ORDINARY PERSON. SHE WAS ACTIVELY INVOLVED
IN THE INVESTIGATION. SHE
PRODUCED THIS EVIDENCE AND TESTIFIED THAT THIS
EVIDENCE WAS A TYPE "A"
SECRETOR AND PLACED MR. KING AT THE SCENE SCENE OF
THE CRIME. NOW, FOR HER
-- AT THE SCENE OF THE CRIME. NOW, FOR HER TO DESTROY
THIS EVIDENCE AND SHE KNEW
ABOUT THIS EVIDENCE WAS SUBJECT TO ATTACK.
WHEN DID YOU FIRST FIND OUT THAT THIS EVIDENCE WAS DESTROYED?
DECEMBER 3, 2001. THE STATE
HAD DONE ANES -- HAD DONE AN INVESTIGATION IN JULY
AND TURNED OVER THEIR FINDINGS
TO US. WHEN WE MOVED --
BUT AT NO TIME PRIOR TO THAT HAD THAT BECOME A CRITICAL ISSUE.
JUDGE, WE DIDN'T HAVE THE
CASE UNTIL THE WARRANT WAS SIGNED. AND THEN, ON
LOOKING AT THE EVIDENCE,
WE HAD MOVED FOR DNA TESTING. ONLY TO FIND THAT THE
STATE HAD DONE AN INVESTIGATION
IN JULY AND DETERMINED THAT THE EVIDENCE THAT
WE SEEK, THE VAGINAL WASH
AND THE RECTAL SWAB, WERE DESTROYED.
WHAT WAS THE EXTENT OF THE
EVIDENCE ACTUALLY PRESENTED AT THE EVIDENTIARY
HEARING, BEFORE JUDGE SHAFER?
THE EVIDENCE?
WHAT --
WELL, JUDGE, THIS ISSUE CAME
OUT AS A RESULT OF THE HEARING FOR DNA TESTING AND
THE STATE'S RESPONSE. NOW,
AT THESE HEARINGS, ONE LARRY BEDOUR, A FORMER
MEDICAL EXAMINER INVESTIGATOR,
TESTIFIED THAT HE WAS NOT PRESENT IN 1977, BUT HE
KNEW DR. WOOD, AND HE KNEW
THAT THEY DIDN'T HAVE AN EVIDENCE LOCKER, SO WE
CAN PRESUME THAT IT WAS
TURNED OVER TO THE SHERIFFS OFFICE OR DESTROYED BY
DR. WOOD. I AM INTO MY REBUTTAL
TIME, SIR, AND I WILL KEEP GOING IF YOU WANT, BUT I
WOULD LIKE TO RESERVE FIVE
MINUTES FOR REBUTTAL. MR. CHIEF JUSTICE
THANK YOU, MR. KILEY. MS. DITTMAR.
GOOD MORNING, YOUR HONORS.
MAY IT PLEASE THE COURT. CAROL DITTMAR
REPRESENTING THE STATE ATTORNEYS
OFFICE AND MICHAEL MOORE. MR. KILEY STARTED
OUT REMARKING THAT HE WAS
CHALLENGING JUDGE SHAFER'S LEGAL CONCLUSION THAT
THIS EVIDENCE WAS DESTROYED
NOT IN BAD FAITH. THAT IS NOT A LEGAL CONCLUSION.
THAT IS A FACTUAL CONCLUSION,
AND THIS COURT IS ENTITLED TO DEFERENCE IN THIS
COURT. IT WAS BASED ON THE
TESTIMONY TAKEN AT THE PUBLIC RECORDS HEARING ON
DECEMBER 10. SO UNDER THEAPPROPRIATE
STANDARD OF REVIEW, THAT IS ENTITLEED
TO GREAT DEFERENCE, AND
I AGREE THAT THE APPLICATION OF Y OMENT UNGBL -- OF
YOUNGBLOOD AND PERHAPS WHAT
THE APPLICATION OF YOUNGBLOOD SAID, IT IS DE
NOVO, BUT THERE ARE VERY
CRITICAL FINDINGS THAT MUST BE TAKEN INTO ACCOUNT, IN
THIS LACK OF GOOD FAITH,
AND THAT IS THE CRITICAL FINDING.
THE TESTIMONY IS THE PERSON
WHO KNEW DR. WOOD BUT WAS NOT WITH THE MEDICAL
EXAMINER'S OFFICE AT THE
TIME?
THAT'S CORRECT. HE STARTED
IN THE EARLY '80s. THIS TESTING WAS DONE IN 1977. HE
STARTED SHORTLY AFTER. THAT
HE WORKED WITH DR. WOOD, I BELIEVE HE SAID FOR 16
YEARS. HE COMMENTED THAT
THEY HAD EXTENSIVE DISCUSSION THROUGHOUT THE
YEARS, ABOUT THE PRESERVATION
OF EVIDENCE. HE WAS VERY FAMILIAR WITH THE
ROUTINE PROCEDURES IN THAT
OFFICE, PRIOR TO THE TIME HE STARTED THERE, AND SO
THE BASIS OF HIS CREDIBILITY
AND THE BASIS OF HIS KNOWLEDGE WERE QUESTIONS FOR
JUDGE SHAFER TO DETERMINE,
AND CERTAINLY SHE TOOK THAT INTO ACCOUNT WHEN SHE
MADE HER FACTUAL FINDINGS.
SO IT IS BASICALLY DURING
THAT PERIOD OF TIME, THE TESTIMONY IS, THAT NOT JUST THIS
PARTICULAR SPECIMEN, BUT
THAT MEDICAL EXAMINER'S OFFICE REGULARLY DID DESTROY
EVIDENCE WITHIN A YEAR AFTER
IT WAS TESTED. IS THAT --
THAT'S CORRECT. IN FACT --.
THAT WOULD PERTAIN TO ANY,
ALL EVIDENCE IN THAT MEDICAL EXAMINER'S OFFICE AS OF
THAT TIME.
THAT'S CORRECT. IN FACT,
BOTH LARRY BEDOUR AND THERE WAS ANOTHER, DEBORAH
LEWIS FROM THE MEDICAL EXAMINER'S
OFFICE, WHO, ALSO, DID NOT WORK THERE IN '77
AND PROBABLY WAS NOT AS
FAMILIAR WITH THE PRACTICE AS MR. BEDOUR WAS. THEY,
BOTH, SPOKE, ALSO, TO THE
PROMULGATION OF THE FLORIDA ADMINISTRATIVE CODE IN
1981, AND ACCORDING TO BEDOUR'S
TESTIMONY, THAT CODE WAS PROMISE YOU WILL
GATED, BASED ON THE ROUTINE
PRACTICES OF MEDICAL EXAMINER'S OFFICES AROUND
THE STATE, SO NOT ONLY WAS
THAT THE TYPICAL PRACNIECE IN THE SIXTH DISTRICT
MEDICAL EXAMINER'S OFFICE,
BUT IT WAS APPARENTLY CONSISTENT WITH WHAT WAS
BEING DONE STATEWIDE AT
THAT TIME.
IS THAT WHAT LED TO THAT
ADMINISTRATIVE CODE, THE THOUGHT THAT MAYBE THIS TYPE
OF EVIDENCE THERE SHOULD
BE A SYSTEM FOR MAINTAINING SUCH CRITICAL --
I WOULD ASSUME SO, JUST BECAUSE
IT WAS AN AREA THAT THERE REALLY WAS NO
REGULATION ABOUT, SO I CAN'T
SPEAK TO EXACTLY WHY THE CODE ADOPTED THE
PROCEDURES IT DID, BUT THAT
WAS THE TESTIMONY THAT WAS PRESENTED TO JUDGE
SHAFER, WAS THAT THEY BASED
THAT, BASED ON ROUTINE PRACTICES THROUGHOUT THE
STATE. UNDER THE YOUNG BLOOD
DECISION, IN ORDER TO FIND BAD FAITH ON THE PART
OF THE PROSECUTION, THE
DEFENDANT MUST BE ABLE TO SHOW NOT ONLY THAT THE
EXCULPATORY VALUE OF THE
EVIDENCE WAS APPARENT BUT, ALSO, THAT THE REASON
FOR DESTROYING THE EVIDENCE
WAS TO KEEP IT FROM THE DEFENDANT. THE
KNOWLEDGE OF THE EXCULPATORY
NATURE WAS THE MOTIVATION IN DESTROYING THE
EVIDENCE, AND CLEARLY THAT
STANDARD IS NOT MET ON THE FACTS OF THIS CASE. AND
JUDGE SHAFER FOUND THAT,
BASED ON THE EVIDENCE BEFORE HER BASED ON
COMPETENT EVIDENCE.
WHAT WAS, AS FAR AS FIRST
OF ALL, WE HAVE IN THE EVIDENCE THAT THESE TYPES OF
THINGS WERE REGULARLY DESTROYED,
BUT AS FAR AS TESTIMONY AS TO WHETHER
THERE WOULD HAVE BEEN ANY
EXCULPATORY NATURE OF THIS EVIDENCE, MR. KILEY
SPEAKS OF THAT, THE REPORT
THAT IS SORT OF SAYS IT IS EITHER DIFFICULT TO READ OR
THERE IS SOMETHING ABOUT
IT THAT HE FEELS WOULD HAVE SHOWN THAT THIS WAS,
COULD HAVE BEEN EXCULPATORY.
COULD YOU ADDRESS THAT?
WELL, ACTUALLY, WHEN THEY
PRESENTED THEIR POSTCONVICTION MOTION, THE
ALLEGATION AT THAT TIME
WAS THAT THIS EVIDENCE HAD BEEN DESTROYED BY THE
SHERIFFS OFFICE IN 1987
OR 1988. JUDGE SHAFER REJECTED THAT ALLEGATION, BECAUSE
THE SHERIFFS OFFICE MAINTAINED
STRICT EVIDENCE LOGS, DETAILING EVERYTHING,
HANDWRITTEN NOTES DETAILING
EVERYTHING THAT EVER CAME INTO THEIR POSSESSION,
AND IT WAS CLEAR THAT THEY
NEVER POSSESSED THE VAGINAL WASHINGS. IN ADDITION
TO THE ROUTINE PRACTICE
THAT THE MEDICAL EXAMINER'S OFFICE DID NOT TURN THESE
THINGS OVER TO THE SHERIFFS
OFFICE, THERE WAS NOTHING FROM THE RECORD OF THE
SHERIFFS OFFICE THAT SHOWED
THAT THEY EVER POSSESSED THESE PARTICULAR
WASHIGS SO THEIR ALLEGATION
AT THE TIME WAS THAT THE SHERIFF DESTROYED THE
EVIDENCE IN 1987 OR 1988,
AND THE REASON THE EXCULPATORY WAS APPARENT BY THAT
TIME WAS, BECAUSE BY THAT
TIME, DNA TESTING HAD DEVELOPED AND THE SHERIFFS
OFFICE WAS AWARE THAT IT
COULD BE TESTED UNDER DNA. IT WAS TESTIFIED AT THE
HEARING THAT DNA WAS NOT
EVEN CONSIDERED A POSSIBILITY IN 1977. THERE WAS NO
SUGGESTION THAT ANYTHING
ABOUT THESE WASHINGS COULD EVER BE SUBJECTED TO
FURTHER TESTING, BECAUSE
THEY JUST DID NOT KNOW ABOUT IT BACK THEN, AND JUDGE
SHAFER, AGAIN, IN HER ORDER
FOUND THAT, BECAUSE THERE WAS NO CLUE THAT DNA
WOULD BE HAPPENING YEARS
LATER, IN 1977, THAT WAS NOT A BASIS FOR FINDING THAT
FROM COULD BE -- THAT THERE
COULD BE ANY EXCULPATORY VALUE. OBVIOUSLY THIS
EVIDENCE HAD BEEN TESTED
AND IT INCRIMINATED KING WHEN IT WAS TESTED. THE
ELLIOTT CASE, WHICH WAS
HEAVILY RELIED ON, INVOLVED A CASE WHERE LAW
ENFORCEMENT DISCARDED EVIDENCE
WITHOUT SUBJECTING IT TO ANY TESTING AT ALL,
SO THAT IS A VERY IMPORTANT
DISTINCTION. THE IDEA THAT EXCULPATORY VALUE --
WAS THE ELLIOTT, DID THE
ELLIOTT CASE GO ON TO AN APPELLATE COURT OR IS THAT A
DISTRICT COURT CASE?
IT IS A DISTRICT COURT CASE,
AND I WAS NEVER ABLE TO FIND WHERE ANY HIGHER COURT
HAD REVIEWED THE FINDINGS
IN THE ELLIOTT CASE. IT HAS BEEN COMMENTED UPON IN A
COUPLE OF OTHER DECISIONS,
WHERE IT HAS BEEN QUESTIONED, BUT THERE IS NO
ACTUAL DIRECT HISTORY OF
IT GOING ANY FURTHER THAN THE DISTRICT COURT.
DO I UNDERSTAND THAT THE
UNWRITTEN RULE OF WHEN THE STATE WOULD DESTROY
EVIDENCE WAS JUST SORT OF
AFTER A YEAR OR SO, THE STATE WOULD JUST DESTROY IT,
AND THIS WAS DONE THROUGHOUT
THE STATE. IS THAT WHAT YOU ARE TELLING ME? WAS
THERE ANY WRITTEN RULES
AT THAT TIME, AS TO WHAT WOULD BE DONE WITH EVIDENCE
AND HOW LONG IT WAS TO BE
HELD?
NO, THERE WERE NOT. THE ONLY
THING IN PLACE WAS THE STATUTE WHICH KING HAS
CITED, WHICH JUDGE SHAFER
BELOW CONSIDERED THE STATUTE AND RULED THAT DR.
WOOD DID NOT VIOLATE THE
STATUTE, IN DISCARDING THIS EVIDENCE, BECAUSE THE
STATUTE SAID THE MEDICAL
EXAMINER MAY KEEP THE EVIDENCE OR MAY TURN IT OVER
TO THE SHERIFFS OFFICE.
THE STATUTE DID NOT REQUIRE ANY PRESERVATION OF THIS
EVIDENCE, DID NOT GIVE A
PARTICULAR PERIOD OF TIME, AND, AGAIN, I THINK THE THING
THAT MAKES A DIFFERENCE
HERE IS THIS IS BIOLOGICAL EVIDENCE. IN ORDER TO
MAINTAIN THE EVIDENCE, IT
WOULD HAVE TO NOT ONLY BE PUT ON A SHELF BUT WOULD
PROBABLY HAVE TO BE REFRIGERATED
AND KEPT INSERT CONDITIONS TO PRESERVE IT,
AND THAT IS WHY THE TESTIMONY
FROM DEBORAH LEWIS, AT THE DECEMBER 10 HEARING,
WAS WE CERTAINLY KEEP THEM
A YEAR, AS WE ARE REQUIRED TO UNDER THE
ADMINISTRATIVE CODE. WE
PREFER TO KEEP THEM TWO YEARS BUT WE JUST DON'T HAVE
THE STORAGE FACILITY, AND
SOMETIMES WE DON'T KEEP THEM A FULL TWO YEARS. THEY
ARE NOT REQUIRED TO. BUT
THAT HAVE WHY THEY DON'T, YOU KNOW, THESE ARE A
LITTLE DIFFERENT THAN SOMETHING
THAT YOU CAN JUST PUT UP ON A SHELF AND DOESN'T
REQUIRE SPECIAL CONDITIONS
OR SPECIAL ENVIRONMENT.
THE DEPARTMENT, ITSELF, HAD NO RULES.
NO. THERE WERE NO RULES.
NO RULES. AND GETTING BACK TO THE EXCULPATORY
NATURE, AS FAR AS THESE
COMMENTS ABOUT THE WASH BEING BLOODY WAS NOT
REALLY AN ISSUE WHICH JUDGE
SHAFER WAS ASKED TO CONSIDER, BECAUSE THAT
WASN'T ARGUED TO HER AS
BEING WHERE THE EXCULPATORY NATURE WAS APPARENT.
HOWEVER, THE NOTE IS ON
THE LAB, ONE OF THE LAB REPORTS, THAT MARIANNE HILL,
WHO ACTUALLY IS THE ONE
THAT DID THE BLOOD TYPING, IT IS ON HER NOTES, AND SHE
WAS QUESTIONED ABOUT IT
BY DEFENSE COUNSEL IN HER DEPOSITION. HE ASKED HER
ABOUT THE NOTES. HE ASKED
HER IF IT WOULD AFFECT THE READING, AND SHE
SUSPENDED, AND SHE SAID,
YOU KNOW, WITH THE BLOOD TYPE, AND SHE EXPLAINED
THAT, BECAUSE THE VICTIM
WAS A "0", THAT THEY, ALSO, TESTED FOR "H", AND THAT THE
ACTUAL TYPING WOULD NOT
BE AFFECTED BY THE BLOOD IN THE WASHINGS, SO I THINK
THAT IS KIND OF A RED HERRING,
THE IDEA THAT THAT NOW BECOMES EXCULPATORY,
WHEN IT WAS EXPLAINED, AND
IT WASN'T A CONCERN BACK AT THE TIME OF TRIAL OR
BEFORE TRIAL, WHEN IT WAS
BEING TESTED.
IF I UNDERSTAND IT CORRECTLY,
THIS EVIDENCE, AS WELL AS THE OTHER DNA EVIDENCE,
WAS, THE WAY IT CAME TO
LIGHT THAT THIS WAS, QUOTE, DESTROYED, WAS BECAUSE
THE STATE ATTORNEY FOR THE
SIXTH CIRCUIT ORDERED THAT ALL PHYSICAL EVIDENCE
AND ALL CAPITAL CASES BE
TESTED FOR DNA, AS TO WHATEVER WAS AVAILABLE.
THAT'S CORRECT. THAT IS MY UNDERSTANDING.
IT WAS REALLY DONE BY THE
STATE, IN AN EFFORT TO SEE IF THERE WAS ANYTHING THAT
MIGHT BE EITHER, I GUESS,
POTENTIALLY EXCULPATORY OR INCULPATORY IN ANY OF THE
CAPITAL CASES?
THAT WAS A REPRESENTATION
MADE BY A MEMBER OF THE STATE ATTORNEYS OFFICE TO
JUDGE SHAFER WAS THAT MR.
McKAB, WHO IS THE STATE -- MR. McCABE, WHO IS THE
STATE ATTORNEY, WHO HAD
REQUESTED, ONCE THE STATUTE WAS PROMULGATED, HE
WANTED TO GO BACK AND REVIEW,
IN EVERY DEATH PENALTY CASE OUT OF HIS OFFICE,
WHAT EVIDENCE WAS AVAILABLE
AND TO GO BACK AND HAVE IT TESTED, WHATEVER
COULD BE TESTED. NOW, I
DON'T KNOW WHERE THEY ARE IN THAT PROCESS. THE
REPRESENTATION WAS THAT,
SINCE THIS IS AN OLDER CASE, IT WAS ONE OF THE FIRST
ONES THEY DID AND THIS WAS
DONE IN JULY. THAT IT WAS BEING UNDERTAKEN.
THAT IS WHETHER IT CAME TO LIGHT THAT THIS EVIDENCE WAS NOT AVAILABLE.
YES, YOUR HONOR.
AND THE OTHER EVIDENCE THAT
WAS AVAILABLE, IS THAT BECAUSE IT WASN'T -- WHAT
WAS THE DIFFERENCE IN,000
THE OTHER EVIDENCE WAS -- IN HOW THE OTHER EVIDENCE
WAS KEPT?
THE OTHER EVIDENCE WAS KEPT BY THE SHERIFFS OFFICE.
IS THAT BECAUSE IT WAS CRIME SCENE EVIDENCE?
RIGHT. RIGHT. IT WAS DISCOVERED
BY THE MEDICAL EXAMINER'S OFFICE DURING THE
AUTOPSY, AND IT WAS TURNED
OVER TO THE SHERIFFS OFFICE AT THAT TIME, RIGHT
AFTER THE AUTOPSY WAS DONE,
WHEN THE VICTIM'S CLOTHES AND ALL THE PHYSICAL
EVIDENCE THAT CAN BE TURNED
OVER TO LAW ENFORCEMENT WAS TURNED OVER.
HOWEVER, THINGS THAT THE
MEDICAL EXAMINER'S OFFICE, ITSELF DID THE FURTHER
TESTING ON, SUCH AS THE
VAGAL WASHINGS, THEY WERE MAINTAINED BY THE MEDICAL
EXAMINER'S OFFICE.
WAS THERE ANY OTHER EVIDENCE IN THIS CATEGORY?
NO. NO. THAT WAS IT.
SO THE HAIR SAMPLES WERE
TURNED OVER AT THE TIME THAT THE OTHER PHYSICAL
SAMPLES WERE TURNED OVER?
RIGHT. HAIR SAMPLES AND FINGERNAIL
SCRAPINGS WERE MAINTAINED BY THE SHERIFFS
OFFICE, AS WELL AS OTHER
EVIDENCE FROM THE SCENE, SO WE STILL HAVE THOSE
PRESERVED BY THE STATE ATTORNEYS,
BY THE SHERIFFS OFFICE. THERE WAS, OF
COURSE, A GREAT DEAL OF
OTHER EVIDENCE TYING MR. KING TO THIS MURDER.
ALTHOUGH IT WAS IN SOME
WAYS A CIRCUMSTANTIAL EVIDENCE CASE, IT WAS A VERY
STRONG CIRCUMSTANTIAL EVIDENCE
CASE, BECAUSE HE WAS NOTED TO BE MISSING
FROM THE CORRECTIONAL FACILITY,
AT THE SAME TIME THAT THE MURDER OCCURRED.
THEY WERE ABLE TO PINPOINT
THE TIME FRAME PRETTY SPECIFICALLY, AND WHEN HE
RETURNED TO THE CORRECTIONAL
FACILITY, THERE HIS EYE WITNESS TESTIMONY THAT HE
HAD BLOOD ON HIS CROTCH
AND HIS PANTS. THAT BLOOD WAS SEEN BEFORE LISTEN
COUNTERWITH JAMES McDONOUGH,
BEFORE -- THAT BLOOD WAS SEEN BEFORE HIS
ENCOUNTER WITH MR. JAMES
McDONOUGH, SO THERE WOULD HAVE BEEN MORE BLOOD
ON HIS PANTS AT THAT TIME.
ON THE GROUNDS OF THE FACILITY WAS NOT FOUND THE
KNIFE BUT WHERE HE PUT IT
SOMEWHERE ELSE. THE KNIFE WAS SAID TO BE THE SAME
MANUFACTURER AS TWO OTHER
KNIVES LOCATED WITHIN THE VICTIM'S HOUSE. IT WAS A
CASE MANUFACTURED KNIFE
THAT MATCHED THE WOOD GRAIN HANDLE AND THE BLADE
TO TWO OTHER KNIVES THAT
WERE LOCATED WITHIN HER HOUSE, AND THERE WAS A
CASE MANUFACTURER REPRESENTATIVE
WHO TESTIFIED AT TRIAL THAT, ALTHOUGH HE
COULD NOT SAY THEY WERE
PURCHASED AS A SET BECAUSE YOU COULD PURCHASE
THEM INDIVIDUALLY, THAT
THEY MATCHED AS A SET WOULD MATCH. HE ALSO STATED THAT
THE PEARING KNIFE, WHICH
IS WHAT WAS -- THE PARING KNIFE, WHICH WAS WHAT WAS
DISCOVERED WITH WOUNDS BOTH
TO MRS. BRADY AND TO McDONOUGH, AND THAT SHE
WOULD HAVE PURCHASED THE
CASE TO GO ALONG WITH THE PARING KNIFE, SO THERE
WAS STATEMENTS THAT KING
MADE TO LAW ENFORCEMENT, STATEMENTS THAT HE MADE
WHEN HE CALLED BACK TO THE
FACILITY THE NEXT MORNING. HE CALLED BACK AND WAS
CONSIDERING TURNING HIMSELF
IN. HE WANTED TO KNOW WHAT HE WAS BEING CHARGED
WITH. THEY TOLD HIM HE WAS
BEING CHARGED WITH ESCAPE, WITH ATTEMPTED MURDER,
AND HE SAID, WELL, I ESTABLISHED
THAT GUY IN SELF-DEFENSE, SO HE ADMITTED THAT
FROM THE BEGINNING, BUT
HE SAID WHAT ABOUT THAT LADY DOWN THE STREET,
BECAUSE HE SAID, I DIDN'T
HAVE ANYTHING ANYTHING TO DO WITH THAT. WHEN ASKED BY
LAW ENFORCEMENT ABOUT THE
KNIFE, HE SAID HE HAD THE KNIFE A WEEK OR TWO AND
THEN HE CHANGED HIS STORY
AND SAID HE TOOK THE KNIFE AWAY FROM McDONOUGH
THAT, McDONOUGH CAME AT
HIM WITH A KNIFE, SO THERE WAS OTHER EVIDENCE
BESIDES THE VAGAL WASHINGS
AND THE "A" SECRETOR BLOOD THAT WAS ON THE
WASHINGS. THE EVIDENCE WAS
AS TO THE ATTEMPTED MURDER WHICH OCCURRED AT
ALMOST THE SAME TIME. WHAT
WAS REJECTED BY JUDGE SHAFER BELOW WAS ALSO
SUPPORTED BY THE RECORD
AT THE DECEMBER 10 HEARING. THAT SUGGESTION COMES
OUT OF COMPUTER SCREEN PRINTOUTS
THAT SUGGESTION THAT SOMETHING WAS
DESTROYED, WITH THE NOTATION
"DESTROYED" IN '87 AND '88. THERE WAS A WITNESS
THAT TESTIFIED BEFORE JUDGE
SHAFER THAT, BECAUSE OF COMPUTER CONVERSION
PROBLEMS, THEY HAD BEEN
THROUGH TWO COMPUTERS SINCE 1977, THAT REALLY
DOESN'T MEAN EVIDENCE WAS
DESTROYED. THERE WAS, ALSO, COMMENTS THAT THERE
WERE SOME ITEMS WHICH THE
WRITTEN NOTES FROM THE SHERIFFS OFFICE REFLECTING
WHAT EVIDENCE THEY HAD POSSESSED,
THERE WERE SOME ITEMS THAT WERE NO
LONGER POSSESSED, SUCH AS
A $1 BILLION, WHICH WE DON'T KNOW WHERE IT IS BUT
PRESUMABLY, IF THERE WAS
AN ITEM DESTROYED, THAT COULD HAVE BEEN WHAT IT
WAS, SO SHAFER HAD COMPETENT
EVIDENCE, AGAIN, TO REJECT THE SUGGESTION THAT
THIS EVIDENCE EVER WENT
TO THE SHERIFFS OFFICE OR WAS DESTROYED BY THE
SHERIFFS OFFICE. THE ONLY
REAL QUESTION IS, AT THE TIME THAT IT WAS DESTROYED BY
THE MEDICAL EXAMINER'S OFFICE
WAS THERE ANY APPARENT EXCULPATORY VALUE, AND
CLEARLY THERE WAS NOT, AND
SHAFER'S FINDING THAT THERE WAS NO EXCULPATORY
VALUE KNOWN, NOT EVEN A
POTENTIAL EXCULPATORY VALUE, NOT EVEN THE
KNOWLEDGE THAT THIS COULD
BE SUBJECT TO FURTHER TESTING AT THE TIME, IS
WELL-SUPPORTED BY THE RECORD
AND BY THE TESTIMONY FROM THE DECEMBER 10
HEARING. SINCE MR. KILEY
DIDN'T ADDRESS ANY OF THE OTHER ISSUES, I WOULD JUST
RELY ON MY BRIEF FOR THE
OTHER ISSUES THAT HAVE BEEN RAISED, UNLESS THE COURT
HAS ANY FURTHER QUESTIONS,
BUT BASED ON THESE ARGUMENTS, I WOULD ASK YOU TO
AFFIRM JUDGE SHAFER'S DENIAL
OF THE MOTION FOR POSTCONVICTION RELIEF AND DENY
THE STAY OF EXECUTION. THANK
YOU. MR. CHIEF JUSTICE
MR. KILEY.
THANK YOU, SIR, YOUR HONOR,
IN REBUTTAL, FIRST OF ALL THE 1981 FLORIDA
ADMINISTRATIVE CODE IS IRRELEVANT.
IT WAS NOT IN EVENT IN 1977. SECOND OF ALL,
YOUR HONOR, THE COMMENT
THAT NOT ALL OF THAT, OR THAT ANY EVIDENCE HELD BY
THE MEDICAL EXAMINER IN
ANY CASE WAS DESTROYED WITHIN TWO YEARS IS, ALSO,
IRRELEVANT. THIS SHOULD
BE EVALUATED ON A CASE-BY-CASE BASIS. WE ARE NOT
TALKING ABOUT A DUI CASE
HERE. WE ARE NOT TALKING ABOUT SOMEONE UNDER
SENTENCE OF IMPRISONMENT.
WE ARE TALKING ABOUT A SENTENCE OF DEATH, A
CAPITAL CASE, AND THE MEDICAL
EXAMINER, BY DESTROYING THIS EVIDENCE, HAS
SATISFIED THE STANDARD IN
ELLIOTT, WHICH STATES SHE SHOWED A RECKLESS
DISREGARD FOR THE COMMON
SENSE ASSESSMENT OF EVIDENCE REASONABLY
EXPECTED OF A TRAINED MEDICAL
EXAMINER. NOW --
HOW DO YOU OVERCOME THE TWO
FACTORS THAT, ONE, THE BLOOD HAD BEEN TESTED,
AND IT WAS INCULPATORY TO
YOUR CLIENT. YOU KNOW, THAT IS JUST ONE OTHER YOU
KNOW, FIRST THAT, AND THAT
IS THAT THE APPEARANCE, AT LEAST THAT THIS EVIDENCE
WAS INCULPATORY, AND THAT
IS THAT, IF ANY EVIDENCE WAS BEING DESTROYED, IT WAS
EVIDENCE THAT TIED YOUR
CLIENT, OKAY, TO THE SCENE, AS YOU HAVE ACKNOWLEDGED,
AND THE SECOND THING BEING
THAT, IF THERE WAS A REGULAR PRACTICE THAT APPLIED
ACROSS THE BOARD, THAT THAT
WOULD BE EVIDENCE THAT TENDED TO SHOW GOOD
FAITH, AS OPPOSED TO BAD
FAITH. THAT IS THAT IF YOU HAD A REGULAR PRACTICE THAT
YOU ADOPTED, AND WERE SHOWN
TO APPLY IT ACROSS THE BOARD, THAT THAT WOULD
BE EVIDENCE OF GOOD FAITH,
AS OPPOSED TO BAD FAITH. HELP ME WITH THOSE TWO
ASPECTS.
YES, YOUR HONOR. FIRST OF
ALL, THAT TEST WAS SUBJECT TO ATTACK. IT WAS GROSSLY
WHOM ON THISNIZED BY MARROW-HOMOGENIZED
BY MARIANNE HILL AND -- IT WAS
GROSSLY HOMOGENIZED BY MARIANNE
HILL AND DIFFICULT TO READ.
BUT YOU ARGUED THAT IT WAS INCULPATORY, CORRECT?
IT WAS INCULPATORY, YOUR
HONOR. HOWEVER, WE ARE MAINTAINING THAT TEST WAS
UNRELIABLE, DUE TO THE HANDWRITTEN
NOTES FROM THE MEDICAL TECHNICIAN, BUT DR.
WOOD SAW THAT.
BUT NOBODY HAD RAISE HAD
THAT ISSUE, UNTIL LAST, UNTIL THIS WARRANT WAS SIGNED.
ISN'T THAT CORRECT?
THAT IS CORRECT, JUDGE. WE
DIDN'T KNOW THIS EVIDENCE WAS DESTROYED, UNTIL THE
THIRD OF DECEMBER.
BUT THE ISSUE HAD NOT BEEN
CHALLENGED ON DIRECT APPEAL OR ON 3.850 OR ANY OF
THE SUBSEQUENT MOTIONS THAT
HAD BEEN FILED IN THIS CASE. AND SO THE FACT OF THE
DESTRUCTION TO THE CONTRARY
NOTWITHSTANDING, NOBODY HAD EVER SUGGESTED
THAT IT WAS A PROBLEM.
THAT IS CORRECT, YOUR HONOR,
AND I AM MAINTAINING THAT, IF THEY HAD READ THIS LAB
REPORT, IT HAS OBVIOUS EXCULPATORY
VALUE VALUE.
ISN'T THAT AN INFERENCE --
DOESN'T THAT GO BACK TO JUSTICE
PARIENT, THAT THIS IS LEAPING BACK ON A CLAIM OF
INEFFECTIVE ASSISTANCE OF
COUNSEL?
NO, YOUR HONOR. WE ARE MAINTAINING
THIS IS A YOUNG BLOOD ISSUE, SUPPORTED BY
ELLIOTT. GOING BACK -- MR.
CHIEF JUSTICE
JUSTICE ANSTEAD.
JUST, TO FINISH UP WITH THAT
FOR YOU TO RESPOND, WOULDN'T IT BE JUST AS LOGICAL
FOR IT TO BE THE BRTION
-- THE PROSECUTION, ASSUMING THAT A NEW TRIAL HAD BEEN
GRANTED ON APPEAL, THAT
IT WOULD BE THE PROSECUTION THAT WOULD BE GREATLY
DISTRESSED WITH THE MEDICAL
EXAMINER'S DESTRUCTION OF THIS EVIDENCE, BY SAYING
YOU HAVE DESTROYED THE EVIDENCE
THAT IS GOING TO ALLOW US TO DIRECTLY TIE THE
DEFENDANT TO THIS CRIME,
AND THAT, YOU KNOW, WE ARE THE ONES THAT HAVE BEEN
HARMED BY THAT. WOULDN'T
THAT BE A LOGICAL CONCLUSION, IF THERE HAD BEEN A NEW
TRIAL GRANTED AND THIS EVIDENCE
HAD BEEN DESTROYED?
NO, YOUR HONOR. THE PROSECUTION
HAD ALREADY GOT WHAT THEY WANTED FROM THAT
EVIDENCE. THEY DIDN'T WANT
IT RETESTED. THEY DIDN'T WANT IT CHALLENGED. GOING
BACK TO YOUR STATEMENT ABOUT
COMMON PRACTICE OF DESTRUCTION OF THIS
EVIDENCE, JUDGE, THAT IS
COMMON PRACTICE, TO DESTROY EVIDENCE AFTER TWO
YEARS, IT IS NOT THE LAW.
IT IS NOT WHAT THE LAW SAID. SHE WAS BOUND BY STATUTE.
IF, THE ONLY WAY TO AUTHORIZE
THE DESTRUCTION OF THIS EVIDENCE WAS
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