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Troy Merck, Jr. v. State of Florida

SC04-1902

NEXT
CASE WILL PROCEED TO TIME CASE
THIS MORNING, IS MERCK VERSUS
STATE OF FLORIDA. MY NAME IS JOHN FISHER,
I'M
>>> MAY IT PLEASE THE COURT MY
NAME IS JOHN FISHER, I
REPRESENT APPELLATE TROY MERCK
AN HIS DIRECT APPEAL FOR
CAPITAL SENTENCING, THIS CASE
GOES BACK TO 1991.
THE INCIDENT WAS IN OCTOBER,
INDICTMENT WAS IN NOVEMBER, OF
91.
FIRST TRIAL, ENDED IN MISTRIAL!!$$!!!!!!!!!!!!!!
MISTRIAL.
AND GOT A TRIAL WHERE HE WAS
FOUND GUILTY, AND THAT
RECOMMENDED -- THAT WAS
REVERSED ON APPEAL.
HE -- SENTENCING THE
CONVICTION WAS AFFIRMED, BUT
-- THE SENTENCE WAS VACATED HE
WENT BACK FOR RESENTENCING
AGAIN GOT THE DEATH PENALTY
THAT AGAIN WAS REVERSED BY THE
COURT ON APPEAL.
SO THIS IS BACK FOR HIS THIRD
SENTENCING!!$$!!!!!!!!!!!!!!!!!!
SENTENCING.
>> DOES THAT MEAN BECAUSE IT
IS THE THIRD TIME WE SHOULD
HAVE A I MEAN, THAT WE --
REVIEW THE ISSUES, JUST LIKE
IT WAS FIRST TIME.
>> YES, ABSOLUTELY, THE --
ISSUES ARE ALL NEW AS TO
SENTENCING!!$$!!!!!!!!!!!!!!!!!!
SENTENCING.
>> I THINKED DID THE CLOSING
ARGUMENT THAT YOU SPENT NOT A
GREAT DEAL BUT THERE IS SOME
PROBLEMS WITH THE CLOSING
ARGUMENT.
IS THIS A DIFFERENT CLOSING
ARGUMENT THOUGH THAN WAS USED
IN THE PAST OR WAS IT THE SAME
PROSECUTOR SAME CLOSING
ARGUMENT?
>> WELL, I WASN'T COUNSEL ON
THAT PREVIOUS APPEALS I DID
LOOK AT THE BRIEFS ON THAT,
HOWEVER!!$$!!!!!!!!!!!!
HOWEVER, I DON'T RECALL IT
BEING IDENTICAL I THINK EACH
CASE HAS BEEN DIFFERENT AND
PART OF THE DIFFERENCE HERE IT
IS A FACT THAT THIS CASE HAS
BEEN AROUND SO LONG THAT THE
PROBLEM THE KEY PROBLEM I SEE
IN THIS CASE I'M NOT TRYING TO
GET AWAY FROM THE
PROSECUTORIALIAL MISCONDUCT
BUT I BELIEVE THAT THE KEY
ISSUE HERE IS THE POSSIBILITY
OF PAROLE IN 25 YEARS, BECAUSE
OF THIS BEING SUCH AN OLD
CASE, AND BECAUSE SO MUCH TIME
HAS GONE BY, THAT THE JURY IS
OBVIOUSLY GOING TO BE
CONCERNED THAT IF THEY GIVE
HIM LIFE, IS HE SOON GOING TO
BE OUT.
AND I THINK THAT THAT ASPECT
OF THIS CASE CHANGES WITH EACH!!$$!!!!!!
EACH --
>> -- THAT PUTTING ON THAT
TYPE OF TESTIMONY THROUGH SOME
-- SOMEBODY THAT COMES IN FROM
THE PAROLE BOARD, IS
SPECULATIVE!!$$!!!!!!!!!!!!!!!!!!!!
SPECULATIVE, BECAUSE WE DON'T
KNOW WHAT THE PAROLE BOARD AT
THE TIME THAT IT CAME UP IS
GOING TO DO, AND THERE JUST SO
MANY MULTITUDE OF FACTORS,
PLUS, IT IS -- HARMLESS,
KEEPING IT OUT, BECAUSE OF THE
FACT THAT WHEN YOU PUT IT ON,
YOU JUST DWELL ON THIS 25 YEAR
TIME PERIOD.
AS IF THE 25 YEAR TIME PERIOD
REALLY WAS MORE IMPORTANT THAN
-- I JUST HAVE A HARD TIME
SEEING A JURY IS GOING TO
BELIEVE SOMEBODY,
CONSTITUENTING UP THERE A--
SITTING UP THERE SAYING HE IS
NEVER GOING TO GET 25 YEARS,
WHEN IT IS GOING TO BE POINTED
OUT THAT YOU KNOW, IT IS
TOTALLY UP TO THE WHAT COMES
BEFORE THE BOARD, AND TIME IT
COMES UP.
>> -- JURY NEVER --
>> I UNDERSTAND THAT, I THINK
WE ALL REALIZE THAT -- GETTING
RELEASED ON PAROLE ON A
CAPITAL CASE, ARE PRETTY SLIM
I DON'T THINK THAT IS PUBLIC
PERCEPTION.
>> WHAT WAS THE PROVE?
BECAUSE -- PROVER WHAT I'M GO
P!!$$
PROFFER JO I WOULD LIKE TO ASK
MR. LANDRY SEEM TO SAY YOU CAN
EXCLUDE THE TESTIMONY, BUT
THEN, IN TROY CASE JUST CAME
OUT YOU STILL HAVE THE RIGHT
TO ARGUE POTENTIAL PAROLE IN
INELIGIBILITY TO THE JURY AS
MITIGATING FACTOR I'M TRYING
TO FIGURE OUT HOW SOMEBODY CAN
ARGUE SOMETHING AS A
MITIGATING FACTOR IF THEY
CAN'T PUT THE EVIDENCE ON SO I
DON'T WE MAY NEED A CLARIFY
WHAT WE SAY BUT I THINK THE
PROBLEM IS THAT WE ARE SEEING
THAT A LOT OF THE THIS IS
SPECULATIVE!!$$!!!!!!!!!!!!!!!!!!!!
SPECULATIVE, TESTIMONY, SO
WHAT IS THE WHAT DID THIS,
WHAT WAS THE P$$ROFFER AS TO
WHAT THIS PAROLE --
>> -- WAS -- HE PREPARES
SUMMARY RECOMMENDATIONS, FOR
THE PAROLE BOARD, AMP AREA,
DISTRICT, PAROLE.
-- TAMPA AREA, HE DOES THAT
ACCORDING TO A MATRIX THE
MATRIX THAT IS PART OF THE
ADMINISTRATIVE RULES, AND HIS
TESTIMONY INDICATED THAT THE
MATRIX YOU HAVE TO SALIENT
FACTOR HAS TO BE DETERMINED
AND BY THE CRIME COMMITTED YOU
GET DOWN TO PROPER COLUMN
ACCORDING TO THE SALIENT
FACTOR, AND YOU CAN -- AND YOU
CAN ADD THE OTHER FACTORS,
THAT AGGRAVATE AND SO HE IS
SUPPOSED TO COME UP WITH A
RECOMMENDATION!!$$!!!!!!!!!!!!!!!!!!!!!!!!!!
RECOMMENDATION, MR. RUIZ
TESTIFIED THAT HIS
INSTRUCTIONS FROM THE BOARD IS
TO RECOMMEND THE TOP OF THE
RANGE ALLOWED.
AND THAT IN THIS CASE THAT
WOULD BE 830 SOME YEARS.
>> AND THAT IT WOULD BE
SUBJECT TO CROSS-EXAMINATION,
WELL WOULD IT BE --
>> ABSOLUTELY.
>> ARE THERE I MEAN DID HE FOE
WHETHER ANYBODY WHO HAD
COMMITTED A FIRST DEGREE
MURDER FIRST DEGREE MURDERED
GO -- GOT OUT AFTER 25 YEARS
DID HE HAVE THAT KIND OF --
>> CERTAINLY, THAT WOULD BE
THAT THE SPECULATIVE NATURE OF
ALL THIS COULD BE BALANCED BY
HAVING THE STATE TESTIFY WELL
WHAT IS THE BOTTOM OF THAT?
BECAUSE THEY WOULD HAVE
WOULDN'T THEY HAVE DISCRETION
TO GO TO THE BOTTOM EVEN IF
THEY ARE ORDERING YOU, TO
SCORE UP AT THE TOP WITH YOUR
SUMMARY!!$$!!!!!!!!!!!!
SUMMARY, THEY COULD ALSO, AS
THEY EVERYTHING IS SPECULATE
-- SPECULATIVE, IN THESE CASES!!$$!!!!!!!!
CASES.
>> LET ME ASK YOU A QUESTION,
ON THAT, ISSUE I'M SORRY.
>> I'M CONCERNED ABOUT HOW FAR
WE ARE GOING TO THE NATURE OF
MITIGATING EVIDENCE.
AND CAN YOU JUST ADDRESS THAT
MORE FUNDAMENTAL QUESTION,
WHETHER THIS IS TRULY
MITIGATING EVIDENCE, IT IS
MITIGATING EVIDENCE -- AS TO
THE $$DEFENDANT'S CHARACTER,
PRIOR RECORD, OTHER
CIRCUMSTANCES OF THE OFFENSE,
YOU AGREE THIS TESTIMONY
REGARDING ELIGIBILITY OF
PAROLE HAS NOTHING TO DO WITH
ANY OF THOSE ASPECTS.
>> WELL, I BELIEVE IT DOES,
BUT I BELIEVE THAT IT IS MORE
FUNDAMENTALLY GOING TO A
NONSTATUTERY AGGRAVATE$$!!OR, THAT
FLORIDA LEFT OUT THAT THE U.S.
SUPREME COURT HAS FOUND IS
OKAY WHICH IS FUTURE DANGERS,
IT IS REALLY DIFFICULT IN
THESE CASES NOT TO -- EVIDENCE
-- TODAYINGUS IT -- DANGEROUS
IT DOES BECOME ASPECT OF THE
CASE EVEN IF LEGISLATURE
HASN'T INCLUDED THAT IN A LIST
OF STATUTORY AGGRAVATORS.
>> IN REALITY THE ARGUMENT IS
REALLY NOT MITIGATION EVIDENCE
TO DEFEAT A STATUTORY
AGGRAVATE$$!!!!OR IT IS REALLY TO
DEFEAT AN IMPLIED WHAT WOULD
YOU ARGUE IS AN IMPLIED
AGGRAVATE!!$$!!!!!!!!!!!!!!!!
AGGRAVATOR.
>> IS NOT -- THIS -- THE
DEFENDANT IS IN A TRAP, HERE.
HE IS NOW DONE, AT THE TIME OF
THIS HE HAS DONE HALF OF THE
25 YEARS THAT WOULD SET HIM UP
FOR POSSIBILITY OF PAROLE.
HE -- HE VIRTUALLY HAS TO
PRESENT EVIDENCE TO THE JURY
THAT HIS CHARACTER IS --
REFORMED THAT IF HE DOES THAT
THE STATE HAS TO -- IS GOING
TO AND DID YOU KNOW, O REBUT
THAT.
>> DID THE STATE OPEN THE DOOR
TO THIS BY ARGUING THAT IT IS
LIFE WITH POSSIBILITY OF
PAROLE 25 HE ALREADY SERVED
13-WAS THIS EVIDENCE IN
RESPONSE TO THAT ARGUMENT FROM
THE STATE?
>> THE STATE WAS STAYING AWAY
FROM EXPLICITLY ARGUING FUTURE
DANGER REGIMENESS BUT I DON'T
DANGEROUSNESS I DON'T BELIEVE
IN THIS CASE PROBABLY MOST
CASES THAT CAN BE TOTALLY
AVOIDED IN A CAPITAL CASE.
IF --
>> ARE YOU ARGUING THAT THIS
IS ONLY RELEVANT IF THE
DEFENDANT HAS SERVED A
SUBSTANTIAL PORTION OF THE
POSSIBLE 25 YEARS, IF THIS WAS
RIGHT AT THE BEGINNING OF THE
25 YEARS, WOULD THIS KIND OF
EVIDENCE STILL BE RELEVANT?
>> I BELIEVE THAT THAT WOULD
BE BEST LEFT FOR A CASE WHERE
THAT WOULD HAPPEN AND THAT IS
NOT GOING TO HAPPEN, BECAUSE
SINCE 1994 EVERYBODY GETS LIFE
WITH -- DEATH OR LIFE WITHOUT
PAROLE!!$$!!!!!!!!!!
PAROLE.
>> WE SEE ENOUGH OF THESE OLD
CASES WHERE PEOPLE --
>> RIGHT.
>> AND SO HE NOW, ALL OF THESE
CASES WILL BE IN A SITUATION,
NOT OF SOMEONE RECEIVING, JUST
NOW A SENSE OF 25 --
POSSIBILITY OF PAROLE AND 25
YEARS, STARTING NOW, IT IS
ALSO A GOING TO START BACK
FROM SOMETIME BEFORE 1994.
>> A CHANCE TO.
>> I'M SORRY.
>> FINISH JUSTICE PARIENTE
JUSTICE WELLS HAS QUESTION.
>> I WAS ASKING WHETHER YOU
WERE PREPARED TO PUT ON
EVIDENCE THAT AS TO WHETHER
FIB HAD GOTTEN PAROLE AFTER 25
YEARS FOR COMMITTING THIS TYPE
OF FIRST DEGREE MURDER, DID
YOU HAVE THAT --
>> ACTUALLY, YES, FELIX RUIZ
SAID THAT IN HIS KNOWLEDGE,
NOBODY HAD -- HAD -- HAD
RECEIVED PAROLE.
ON A CAPITAL SENTENCE.
NOT EVEN JUST AFTER 25 YEARS.
JUST NO ONE HAD IN HIS
KNOWLEDGE.
>> DOES THIS COME UP BECAUSE
THE JURY IS ACTUALLY
INSTRUCTED IN THESE OLD CASES
THAT THE -- EITHER YOU GET
DEATHED OR LIFE, DEATH OR LIFE
THE POSSIBILITY OF PAROLE
AFTER 25 YEARS?
CORRECT, AND EVEN THOUGH THE
STATE WAS NOT EXPLICITLY
ARGUING LOOK OUT HE IS GOING
TO BE OUT SOON, IT COMES IN
WITH THE INSTRUCTIONS IT COMES
IN WITH THE EVIDENCE, IF WE
LOOKED AT THE U.S. SUPREME
COURT CASES THAT HAVE DEALT
WITH SIMMONS AND ITS PROGENY
THEY ARE NOT -- IN THE PROGENY
OF SIMMONS, THE STATE WAS
SAYING WE ARE NOT SEEKING
FUTURE DANGEROUSNESS --
AGGRAVATE$$!!!!OR BUT THE COURT FOUND
IT ON ELEMENTS SIMILAR TO WHAT
HAPPENED IN THIS CASE THAT IT
WAS PRESENT NONETHELESS.
>> I'M TRYING TO FIGURE OUT,
MAYBE MR. LANDRY CAN SHED SOME
LIGHT ON THIS, ISSUE, WHY DO
WE EVEN NEED THAT PHRASE IN
THE INSTRUCTION WITHOUT THE
POSSIBILITY OF RA -- PAROLE
FOR 25 YEARS?
WHY IS NOT THE JURY JUST
INSTRUNTHED EITHER A SENSE OF
DEATH OR A SENSE OF LIFE?
-- SENTENCED OF DEATH OR A
SENTENCED OF LIFE.
>> THAT MAY HAVE SIMPLIFIED
THINGS BUT THAT IS NOT INDEED
WHAT OUR CASE IS.
>> HE JUST AS WELL -- JUSTICE
WELLS A QUESTION.
>> TO YOUR POINT NUMBER TWO,
THAT IS AS TO WHETHER YOU
SHOULD HAVE BEEN ABLE TO PUT
ON MORE OF A DEFENSE AS TO
WHAT HAD ACTUALLY HAPPENED.
>> CORRECT.
>> AS I READ WHAT YOU WERE
ALLOWED TO PUT ON, OR LET ME
ASK YOU, WHAT SPECIFICALLY DID
THE JUDGE NOT ALLOW YOU TO PUT
ON THAT --
>> WELL, WANTED TO PUT ON MORE
EVIDENCE POINTING THE FINER AT
NEILL THOMAS WHO WAS -- FINGER
AT NEILL THOMAS A KEY
WITNESSES AGAINST THE
DEFENDANT.
>> WHAT WAS P$$ROFFERED HERE YOU
WERE NOT ALLOWED TO POINT ON.
>> A WEAK POINT IS NOT IT I'M
SORRY TO SAY.
THERE IS ONLY THE SOME MENTION
BY COUNSEL WHAT THE EVIDENCE
THAT IT WOULD LIKE TO PRESENT
WOULD BE, IT DID NOT PUT ON
WITNESSES.
BUT AS TO WHAT --
>> ONLY THING THAT I COULD
FIND HERE WAS THAT MISS
SULLIVAN WAS AIN'T ALLOWED TO
TESTIFY -- WASN'T ALLOWED TO
TESTIFY AS TO THE FACT THOMAS
WAS WEARING THE CLOTHES THAT
SHE TESTIFIED.
>> -- SULLIVAN --
>> YES.
>> --
>> SOMETHING ABOUT
FINGERPRINTS!!$$!!!!!!!!!!!!!!!!!!!!!!
FINGERPRINTS, OF -- OF THOMAS,
AS HOW THAT IT WAS NOT SPELLED
OUT HOW THE FINGERPRINTS WOULD
PLAY OUT.
>> RIGHT.
>> THIS WAS DEALT WITH, MORE
OF THIS WAS DEALT WITH BETTER
IN PREVIOUS APPEALS BUT NEVER
RULED ON.
AND, I BELIEVE, THERE WAS
BETTER P$$ROFFERS IN THE
PREVIOUS APPEALS ON THIS
ISSUE.
>> WHAT -- WHAT CONCERNS ME
ABOUT THIS POINT, IS THAT IT
DOES LOOK LIKE THE STATE WAS
ABLE TO TRY A LOT OF THE
GUILTY PHASE -- GUILT CAUSE OF
THE CASE I'M GOING TO ASK
MR. LANDRY ABOUT THIS IS THE
DEFENDANT WAS THEN NOT ALLOWED
TO PUT ON THE DEFENSIVE
TESTIMONY ABOUT THE SAME
THING, NECESSARILY, BECAUSE
THIS WAS TRYING HAC, BUT,
THERE WASN'T ANYTHING IN THAT
I FOUND THAT WAS PRESENTED AS
TO WHAT WOULD HAVE BEEN PUT
ON, THAT WOULD HAVE REALLY
BEEN MATERIAL AND HELPFUL TO
THE DEFENSE.
>> I BELIEVE, THAT IT WAS
WRONG TO LIMIT THE DEFENSE AND
I BELIEVE THAT IT WAS
IMPORTANT FOR THE DEFENSE TO
BE ABLE TO FURTHER IMPEACH AM!!$$!!
AMMOS, AND I BELIEVE THAT IT
IS WRONG FOR THE COURT AS IT
DID TO DECIDE, THAT A
STATUTORY AGGRAVATE$$!!!!ORS
INAPPLICABLE BECAUSE YOU'VE
BEEN CONVICTED OF THE MURDER,
IN OTHER WORDS, HE IS SAYING
THAT THAT AGGRAVATE$$!!!!OR DOESN'T
EXIST.
>> A WHAT ARE YOU REFERRING TO
THERE?
OH, WELL, PART OF THE BASIS OF
SEEKING TO BRING IN MORE
TESTIMONY ABOUT NEILL THOMAS
AND ABOUT WHAT HAPPENED,
ORIGINALLY!!$$!!!!!!!!!!!!!!!!!!
ORIGINALLY, FROM THE DEFENSE
SIDE, WAS SEEK TO GO GET AN
AGGRAVATE!!$$!!!!!!!!!!!!!!!!
AGGRAVATOR, THAT TROY WAS
MINOR PARTICIPANT, OR AND THAT
NEILL THOMAS WAS ACTUALLY THE
PRIMARY PERPETRATOR, AND THE
COURT WAS HOLDING LARGELY,
THAT THAT CAN'T HAPPEN, UNLESS!!$$!!!!!!!!!!
UNLESS, THE CO-DEFENDANT, WAS
ACTUALLY PROSECUTING, AND IF
HE IS NOT PROSECUTED, THEN IT
CAN'T HAPPEN, AND THAT IT
CAN'T HAPPEN, BECAUSE HE IS
ALREADY DONE FOUND GUILTY.
EVERY DEFENDANT GOING TO
CAPITAL SENTENCING HAS ALREADY
BEEN FOUND GUILTY, SO THAT
PART OF THE TRIAL $$COURT'S
RULING THAT YOU CAN'T GET IT
BECAUSE YOU HAVE ALREADY BEEN
FOUND GUILTY IS PATENTLY
ABSURD.
>> IS IT ABSURD IN A CASE LIKE
THIS, WHERE HE WASN'T CHARGED
WITH FELONY MURDER HE WAS
CHARGED WITH PREMEDITATED
MURDER.
AND IT WASN'T -- THIS IS NOT A
CASE WHERE BOTH THE DEFENDANTS
WERE ATTACKEDING THE VICTIM IN
THIS CASE, IS IT.
>> NO.
THE DEFENDANT --
>> THEORY ON THIS IS THAT THEY
GOT THE WRONG GUY.
AND THAT RATHER THAN THOMAS
BEING THE UNINDICTED
UNCHARGED, ACCESSORY AFTER THE
FACT THAT THEY GOT IT REVERSED
THAT THOMAS SHOULD BE THE ONE
WHO WAS THE PERISH TRAITOR,
AND TROY WAS MORE LIKE HOW
THOMAS HAS BEEN PORTRAYED.
>> WAS THAT DEFEND IN THE
ORIGINAL GUILT PHASE.
>> I BELIEVE THAT IT WAS.
HOWEVER!!$$!!!!!!!!!!!!
HOWEVER, I WAS NOT THE
ATTORNEY, AT THAT TRIAL, OR ON
HIS FIRST APPEAL.
BUT THAT IS THE WHAT I RECALL.
WAS THE DEFENSE.
>> WHAT IS YOUR STRONGEST
ARGUMENT AS FAR AS THIS
CLOSING ARGUMENT IS CONCERNED?
>> WELL, THE ONE THAT IS
PRESERVED!!$$!!!!!!!!!!!!!!!!
PRESERVED, OF COURSE, IS THE
STRONGEST!!$$!!!!!!!!!!!!!!!!
STRONGEST, BECAUSE IT IS
PRESERVED!!$$!!!!!!!!!!!!!!!!
PRESERVED, AND THAT IS THE NO
MERCY ARGUMENT.
WHICH WAS INITIALLY OBJECTED
TO, WAS OVERRULED.
>> THAT WAS A PRETYOOG HE
PRETTY FLEETING REFERENCE ONLY
HAPPENED ONES.
>> NO, ACTUALLY THE END OF THE
CLOSING, RENEWED IT.
>> I MEAN I AND, I GUESS, I
WILL ASK MR. LANDRY, YOU KNOW
JUST AS I THOUGHT THAT WE
WEREN'T GOING TO SEE ANY MORE
CLOSING ARGUMENTS, THAT WERE
INAPPROPRIATE, THIS -- THIS
COMES IN AND MY CONCERN ISES
THAT THE JUDGE ON THAT ONE
THAT HAS BEEN KNOWN TO BE
IMPROPER SINCE 1989 -- YOU
CAN'T AFFORD YOU AFFORD HIM
THE SAME MERCY HE AFFORDED
THERE, BUT YOU DO HAVE THEN
NOTHING ELSE BEING OBJECTED
TO, WHAT DO YOU SEE OTHER THAN
THE ONE OBJECTED TO?
WHAT ARE THE GIVE ME HE --
>> THE RULE -- I BELIEVE IS
VERY BAD --
>> YOU TALKED ABOUT THE KNIFE,
AND THE OH --
>> LOOK AT THE CLOCK, WATCH A
MINUTE GO BY IMAGINE DYING
WITH YOUR THROAT RIPPED OUT
FOR THAT MINUTE.
THAT WAS A LONG TIME.
WASN'T IT.
>> WHAT HAS THE THING ABOUT
TALKING ABOUT THIS -- HE IS
NOT GOING TO HAVE CHANCE TO
READ PEN PALACE, AND THIS
ISSUE ABOUT -- WITNESSESING A
FAKE ORGASM CONTEST?
>> I BELIEVE THAT A WHOLE LOT
OF THE WHAT CAME IN FROM THE
PROSECUTOR!!$$!!!!!!!!!!!!!!!!!!
PROSECUTOR, MY BELIEF IS THAT
HE WAS NOT REALLY MAKING STUFF
UP, I THINK HE WAS HE HAS BEEN
DEALING WITH THIS CASE FOR
ALMOST 15 YEARS, HE KNOWS
THINGS ABOUT THIS CASE, OR HE
BELIEVES THINGS ABOUT THIS
CASE FROM YOU KNOW, FROM PRIOR
PROCEEDINGS!!$$!!!!!!!!!!!!!!!!!!!!
PROCEEDINGS, FROM PRIOR
DEPOSITION!!$$!!!!!!!!!!!!!!!!!!
DEPOSITIONS, I THINK THAT HIS
STATEMENTS THE PROSECUTOR$$'S
MISSTATEMENTS OF FACT
ASSERTING THINGS THAT WERE
PROVED THAT WERE NOT PROVED.
MAY WELL BE HIS MISTAKEN
BELIEF THAT THINGS THAT HE
KNOWS FROM OTHER PROCEEDINGS,
WERE PRESENTED IN THIS CASE,
AND I BELIEVE THAT HAPPENS TO
THE JUDGE AS WELL AND THE $$
JUDGE'S ORDER THE JUDGE FOUND
FACTS, THAT -- ARE NOT IN THE
RECORD.
I THINK, THAT BY REVIEWING
WHAT HAPPENED IN THIS CASE IN
THE PAST, HE MAY HAVE PICKED
UP FACTS, THAT WERE NOT
PRESENT.
IN THE INSTANT CASE.
>> YOU ARE WELL INTO REBUTTAL
ONLY A COUPLE MINUTES, DON'T
BE SORRY USE THE TIME YOU THE
WAY YOU WANT.
>> I WOULD LIKE TO RESERVE
SOME TIME FOR REBUTTAL.
>> OKAY.
>> THANK YOU.
>> ALL RIGHT.
>> MR. LANDRY?
>> MAY IT PLEASE THE COURT BOB
LANDRY APPEARING ON BEHALF OF
THE STATE OF FLORIDA THE
ATTORNEY !!$$!!!!!!!!!!!!!!!!
ATTORNEY GENERAL'SOFFS, THIS
IS A RESENTENCING OR IF I CAN
-- RESENTENCING OF MR. !!$$!!!!!!
MR. CONVICTION POST ISSUE
RAIRZED WHEN ARE NOT TRIAL
COURT IMPROPERLY EXCLUDED
EVIDENCE RELATING TO
PRESUMPTIVE PAROLE RELEASE
DATE.
I THINK EVERYONE AGREED BELOW,
THAT MR. RUIZ, WAS SIMPLY
GOING TO OFFER SPECULATIVE
TESTIMONY, HE GAVE A P$$ROFFER
WHEN WHEN THE COURT DENIED,
THE REQUEST.
>> I THINK THE TESTIMONY WAS
SOMEBODY, IN HERE IS THE --
HEARS THE FACTS OF THIS
PERSON'S CASE YOU ARE THE ONE
THAT PREPARED THIS FOR THE
PAROLE BOARD, GIVEN ALL THIS,
THESE FACTS, HE WOULDN'T BE
ELIGIBLE FOR PAROLE FOR 800
YEARS, WASN'T THAT WHAT HE WAS
IN --
>> YES, THAT WAS PURSUANT TO
THE MATRIX APPARENTLY.
>> THAT IS PRETTY -- THAT IS
NOT -- I MEAN THAT SEEMS LIKE
A -- QUESTION OF NOT JUST
SPECULATING IT IS NOT LIKE
SOMEBODY THAT JUST -- HOW IS
THAT SPECULATIVE?
>> I MEAN, I I THINK -- HIS
TESTIMONY, IN THE P$$ROFFER
INDICATES HE WAS -- I THINK HE
WAS ASKED FOR EXAMPLE, IF THE
-- ABOUT HOW MANY PEOPLE,
ACTUALLY GOT OUT WHATEVER,
ACCORDING TO THAT, I DON'T
THINK HE -- I THINK HE
INDICATED THAT HE DIDN'T KNOW.
IF ANYONE HAD.
>> THAT WOULD BE A DIFFERENT
ISSUE, BUT I'M CONCERNED, WE
HAVE SAID, THAT THE DEFENSE
COUNSEL HAVE THE RIGHT TO
ARGUE POTENTIAL PAROLE IN
INELIGIBILITY TO THE JURY WAS
A MITIGATING FACTOR THE JURY
IS TOLD, THAT THE ALTERNATIVE
SENTENCED TO DEATH IS LIFE
WITHOUT A POSSIBILITY OF
PAROLE AFTER 25 YEARS, THE
SECOND THE MINUTE AFTER THEY
STARTED DELIBERATING THE FIRST
QUESTION THEY ASKED.
WHEN IS HE GOING TO GET OUT WE
ARE JUST SAYING, CAN'T PUT --
JURY -- EVEN THOUGH THEY KNOW
IT IS -- 25 YEARS, YOU CAN'T
PUT ANYTHING ON TO EXPLAIN
THAT 25 YEARS DOESN'T MEAN 25
YEARS.
>> YOU DON'T SEE PROBLEM IN
WHAT WE HAVE CREATED HERE?
NO, THEY ASKED, I GUESS, THEY
CAME BACK SAID -- DOES TIME
START TO COUNT FROM THEN OR
FROM NOW, ANDP THE DEFENDANT
WAS SAYING.
>> WHAT DID THE JUDGE SAY?
HE CAN'T TELL YOU?
>> PURSUANT TO THE FLORIDA
SUPREME COURT CASE LAW, IT IS
THE APPROPRIATE THING IS TO
SIMPLY SAY YOU HAVE TO RELY ON
THE INSTRUCTIONS AND THE
EVIDENCE THAT HAS BEEN
PRESENTED TO YOU.
>> I KNOW WE HAVE DIFFERENT
STATUTE NOW WHY DO WE OF AN
NEED THAT THAT IN THE INSTRUCT!!$$!!!!!!!!!!!!!!
INSTRUCTION WHY DOES THE JURY
I SINCE IT IS SO MISLEAD TO GO
SAY NO POSSIBILITY OF PAROLE
FOR 25 YEARS BECAUSE THE JURY
DOESN'T KNOW THAT 25 YEARS, IS
THE FLOOR IT IS NOT THE
CEILING!!$$!!!!!!!!!!!!
CEILING, AND THE CEILING MAY
BE LIKE YOU SAID, 800 YEARS,
SO WHY ISN'T IT BETTER JUST TO
TELL THE JURY YOU DO RECOMMEND
LIFE OR YOU DO RECOMMEND
DEATHED SEEMS LIKE IT CREATES
MORE QUESTIONS THAP IT RESO
WILL BS BY PUTTING THAT
WITHOUT POSSIBILITY OF PAROLE
FOR 25 YEARS.
>> WILL, I MEAN --
>> AGAIN, PROBABLY THE JURY IS
THEN GOING TO COME BACK SAY
WHAT DOES THAT REALLY MEAN
DOES IT IS -- DOES IT MEAN
SOMEONE IS NEVER GOING TO GET
OUT WHATEVER WHATEVER.
THE DEFENDANT.
>> I'M NOT SURE THAT THAT IS
AN ADEQUATE RESPONSE.
>> THE DEFENDANT WAS WAS
ARGUING BELOW, THAT -- THAT
YOU KNOW, HE WAS PREMISING HIS
ARGUMENT ON THE FACT THAT
NUMBER ONE, THE STATE WAS
GOING TO BE ARGUING, THE WHEN
DEFENDANT WAS GOING TO BE
RELEASED THE PROSECUTOR SAID
WE ARE NOT GOING ARGUING THAT
NOT GOING TO BE -- THE TIME OF
THAT AT ALL, SO HIS PREMISE
WAS INCORRECT.
SECONDLY, THE DEFENDANT WAS
SAYING I'M RELYING ON SIMMONS,
AND THEN UNITED STATES SUPREME
COURT SUBSEQUENTLY CAME OUT IN
RAMDOS, CITED IN OUR BRIEF
SAID LOOK, SIMMONS WAS --
PREMISED ON PARTICULAR FACTUAL
CIRCUMSTANCES, AND IT IS
REALLY DANGEROUS, TO START
TELLING THE JURY, TO INVITING
THEM TO SPECULATE, AS TO ALL
KINDS OF VARIABLES IN THE
FUTURE THAT NO ONE CAN
ANTICIPATE OR ANSWER.
>> THAT IS PRECISELY MY POINT
THAT IS WHY I DON'T UNDERSTAND
WHY WE PUT, POSSIBILITY OF
PAROLE AFTER 25 YEARS.
>> WELL.
>> SO SPECULATIVE, AND I THINK
THE STATISTICS WOULD BEAR OUT
THAT VERY FEW DEFENDANTS CAN
VICK FIND MURDER ACTUALLY GET
OUT AFTER 25 YEARS.
>> WELL, IF -- IF THE COURT
WANTS TO CHANGE THE INSTRUCT!!$$!!!!!!!!!!!!!!
INSTRUCTION AS TO -- AS TO
WHAT THE JURY SHOULD BE TOLD,
THAT -- YOU KNOW MAYBE --
>> IS THE CONSTRUCTION BASED
-- INSTRUCTION BASED ON WHAT
THE STATUTE DOES?
DOESN'T THE STATUTE ACTUALLY
SAY FOR THIS KIND OF CRIME,
YOU -- IT IS, THAT THAT IS
DEATH PENALTY OR LIFE, WITHOUT
PAROLE FOR 25 YEARS, AND DID
ONE POINT SAY FOR 50 YEARS, OR
THEN -- LIFE?
WHAT I'M ASKING YOU WAS IS THE
INSTRUCT!!$$!!!!!!!!!!!!!!
INSTRUCTION, BASED ON WHAT THE
STATUTORY LANGUAGE IS?
>> I THINK SO BUT I DON'T HAVE
THAT IN FRONT OF THE RIGHT NOW
SO I CAN'T --
>> JUSTICE AS QUESTION.
>> REALLY IS THE SAME
QUESTION, IN OTHER WORDS,
AREN'T WE REALLY CAUSING THERE
TO BE SPECULATION BY INCLUDING
IN THAT INSTRUCTION THE
ELIGIBILITY FOR PAROLE AFTER
25 YEARS, WE HAVE HELD IN OUR
CASE LAW THAT FUTURE DANGEROUS
NIECE CANNOT BE DANGNESS
CANNOT BE CONSIDERED AS
AGGRAVATE!!$$!!!!!!!!!!!!!!!!
AGGRAVATOR, AND WE HAVE ALSO
SAID THAT IT IS IMPROPER FOR A
PROSECUTORS FOR INSTANCE, TO
ARGUE, FUTURE DANGEROUSNESS,
INCLUDED IN THAT, THE
SPECULATION!!$$!!!!!!!!!!!!!!!!!!!!
SPECULATION, THAT SOMEBODY
MIGHT GET OUT AND KILL AGAIN,
BUT AS YOUR OPPONENT HAS
SUGGESTED!!$$!!!!!!!!!!!!!!!!
SUGGESTED, DEPENDING ON WHAT
THE JURY IS TOLD, A LOT OF THE
THESE THINGS ARE YOU KNOW,
BETWEEN THE LINES, IMPLICATED,
NOW, AREN'T WE REALLY EN
COURAGING A JURY IF WE KEEP
THAT PHRASE IN THERE, ABOUT
ELIGIBILITY FOR PAROLE, AREN'T
WE INVITING THE JURY THEN TO
SPECULATE, ABOUT IT, AND OF
COURSE!!$$!!!!!!!!!!
COURSE, SPECULATE WITHOUT ANY
GUIDANCE!!$$!!!!!!!!!!!!!!
GUIDANCE?
SO I'M, I GUESS, MY QUESTION
IS SIMILAR TO WHAT YOU HEARD
FROM JUSTICE CANTERO WHAT
WOULD BE THE PROBLEM WITH
ELIMINATE$$!!!!ING THAT PHRASE FROM
THE JURY INSTRUCTIONS?
>> WELL, I DON'T KNOW THAT
THERE WOULD BE A SERIOUS
RESULT FROM THAT.
IT SEEMS TO ME THAT THE JURY
MAY STILL COME BACK WANT TO
KNOW WHAT DOES THAT REALLY
MEAN -- IN TERMS OF --
>> OF COURSE YOUR SPECULATING.
>> AS TO WHEN THE JURY MIGHT
DO, BUT -- IF INDEED, IT WERE
WHAT WE ARE TRYING TO DO IS
AVOID THAT SPECULATION, WHY
WOULDN'T WE WANT TO REMOVE A
TRIGGER TO IT?
THAT IS, A TRIGGER, OF THIS
ELIGIBILITY FOR PAROLE, WITHIN
25 YEARS, BUT OF COURSE, THAT
DOESN'T COMPLETE THE
PROPOSITION, BECAUSE WHAT A
SENSIBLE JURY PROBE WOULD WANT
TO KNOW WHAT DOES THAT MEAN,
THAT -- AS SOON AS ELIGIBLE
FOR PATROL THEY GET OUT?
OR DOES IT MEAN SINCE THE
OFFENSE IS A CAPITAL OFFENSE
THAT THEY ARE LIKELY
LIKELIHOOD IS THAT THEY ARE
NOEL NEVER GET OUT?
OR ARE WHAT DOES IT MEAN?
WHEREAS IF YOU JUST LEAVE IT
AS A LIFE SENTENCED, OR A
DEATH SENTENCED, THAT AT
LEAST, IS LESS LIKELIHOOD OF
SPECULATING ABOUT THAT.
>> WELL, IF YOU WANT TO CHANGE
IT CHANGE THE LANGUAGE OF THE
INSTRUCT!!$$!!!!!!!!!!!!!!
INSTRUCTION, THAT -- THAT MAY
WELL BE APPROPRIATE AND --
>> THIS IS THE ONLY CRIMINAL
CASE IN WHICH WE TELL A JURY,
ABOUT PAROLE, ELIGIBILITY, IT
CAN BE A LIFE FELONY, OR YOU
KNOW, OTHER SERIES FELONY,
WITH OBVIOUSLY SERIOUS
SENTENCEDES SHORT OF DEATH
THEN NONE OF THOSE OTHER CASES
AS THE JURY HAD TOO MANY --
TOLLED ABOUT ANYTHING ABOUT
PAROLE ELIGIBILITY; CORRECT?
>> WELL, I BELIEVE.
SO.
>> RIGHT.
>> BUT IT SEEMS TO ME, AND
GETTING BACK TO -- A THEME
THAT IS BEING ADVANCED BY THE
DEFENDANT IS THAT STATE WAS
SOMEHOW IMPERMISSIBLY ARGUING
FUTURE DANGEROUSNESS AS --
>> WHAT DOES A JURY THINK
FRANCE I DON'T KNOW WHAT THE
NUMBERS WERE IN THIS CASE,
BUT, YOU KNOW, UNFORTUNATELY,
IT IS NOT UNUSUAL, FOR THESE
-- WHEN WAS THE FIRST
CONVICTION IN THIS CASE?
>> IT WAS --
>> LET'S JUST HAVE A
HYPOTHETICAL SAY 20 YEARS?
NOW WE ARE HAVING -- THE --
HAVING.
>> CLOSER TO TEN OR 13.
>> WHATEVER, SO, NOW, A JURY
IS LOOKING AND SAID MY GOSH,
UNDER THE INSTRUCTIONS, THAT
THE JUDGE GAVE US, AS COMPARED
TO A LIFE SENTENCED, HAVING
SOMEBODY, BE SENT AWAY FOR
LIFE, HERE, AS OUR ALTERNATIVE!!$$!!!!!!!!!!!!!!!!!!!!
ALTERNATIVE, IF WE IMPOSE THE
SENTENCE, OF LIFE, WITH
ELIGIBILITY FOR PAROLE IN 25
YEARS, THAT APPEARS TO BE IN
TEN YEARS, THIS PERSON
CONVICTED OF CAPITAL MURDER,
HAS A CHANCE TO GET OUT.
AND BOY, THAT IS A -- THAT IS
NOT SOMETHING, THAT WE WOULD
REALLY WANT TO DO.
IN A CASE LIKE THIS.
IS HAVE SOMEBODY, BE ABLE TO
GET OUT.
>> I THINK THE SAME IS TRUE IF
IT IS FIVE YEARS, THEY SAY
WELL HE WILL BE OUT IN 20.
>> IT COMES BACK TO THIS --
>> MAY IF COULD YOU ANSWER
THIS QUESTION, DIRECTLY.
WE WILL GET ANOTHER QUESTION
IF YOU COULD JUST ANSWER IT.
>> SO THE STATE DOES THE STATE
HAVE ANY PROBLEM WITH
ELIMINATING THAT INSTRUCTION?
INCLUDING THE 25 YEAR
ELIGIBILITY!!$$!!!!!!!!!!!!!!!!!!!!
ELIGIBILITY?
>> WELL I THINK SO LONG AS --
JURY IS INSTRUCTED CORRECTLY
AS TO WERE A THE LAW IS, WHAT
THE LAW IS HOWEVER THE COURT
WANTS TO FRAME THE INSTRUCT!!$$!!!!!!!!!!!!!!
INSTRUCTION.
>> ALL RIGHT THANK YOU.
>> JOHANNESBURG -- JUSTICE
WELLS WANTED TO INQUIRE.
>> LET ME CHANGE -- CHANGE
FOCUS HERE TO THE CLOSING
ARGUMENT, WHEN YOU GROW HE
THAT UNDER OUR CASE LAW THAT
WAS IN EXISTENCE, AT THE TIME
THIS CASE WAS TRIED, THAT
JUDGE DOWNEY WAS IN ERROR, IN
OVERRULING THE OBJECTION TO
THE MERCY ARGUMENT?
DON'T WE HAVE TO DON'T YOU
HAVE TO --
>> WELL, I THINK -- I THINK
THE COMMENT THAT WAS MADE THAT
WAS OBJECTED TO.
BEGINNING OF THEP PROSECUTOR$$'S
ARGUMENT, IS PROBABLY A CLOSE
-- PROBABLY, A CLOSE QUESTION
AS TO WHEN OR NOT THE OBJECT!!$$!!!!!!!!!!
OBJECTION SHOULD HAVE BEEN
SUSTAINED OR OVERRULED.
>> HOLD, HOLD IT.
GIVE US, THE -- SENTENCED,
THAT -- JUSTICE WELLS IS
TALKING ABOUT JUDGE DOWNEY
OVERRULED THE DEFENSE WILL BE
TALKING TO YOU ABOUT WHAT WE
CALL MITIGATION THINGS ABOUT
HIS BACKGROUND THEY BELIEVE
SHOULD WARRANT YOU I AFFORDING
HIM SOME MERCY THAT HE NEVER
AFFORDED MR. NEWTON.
ARE YOU SAYING, THAT IS A
CLOSE CALL OR THAT HAS BEEN
CLEARLY SINCE -- THAT IS THE
ONE -- YOU AGREE THAT ONE IS
NO QUESTION THAT IS AN
ERRONEOUS IMPERMISSIBLE
ARGUMENT?
>> WELL, HE IS -- TO THE
EXTENT!!$$!!!!!!!!!!
EXTENT, TO THE EXTENT THAT YOU
READY INTO THAT THAT HE IS
SAYING THERE SHOULD BE NO
MERCY CONSIDERED, OR
APPROPRIATE UNDER ANY
CIRCUMSTANCES FOR THIS, THEN
THAT IS ONE OF THE TYPE OF
COMMENTS THAT HAS BEEN
CONDEMNED BY THIS COURT.
I THINK --
>> YOU SAID THOUGH THAT IS A
YES?
IT IS IMPROPER?
>> WELL, YEAH DEPENDING HOW, I
GUESS, HOW YOU HOW YOU
INTERPRET THAT.
I MEAN IN CASES LIKE LUGO FOR
EXAMPLE!!$$!!!!!!!!!!!!
EXAMPLE, THE COURT HAS SAID
THAT WHERE THE PROSECUTOR WAS
SIMPLY GIVING THAT NOT LEGAL
ANALYSIS BUT A FACTUAL
ASSERTION!!$$!!!!!!!!!!!!!!!!
ASSERTION, IN OTHER WORDS,
PERHAPS THE PROSECUTOR IS
SAYING HE IS GOING TO BE
ARGUING THIS, JUST, TRYING TO
-- GIVE A FACTUAL THING, AS TO
THAT.
RATHER THAN LEGAL ANALYSIS.
BUT, AGAIN, ARGUABLY FOR THE
SAKE OF ARGUMENT SAY THAT WAS
ERRONEOUS -- STATEMENT BY
PROSECUTOR --
>> YES, IT IS, BUT IT DOESN'T
RISE TO REVERSIBLE ERROR,
BECAUSE NOTHING ELSE WAS
OBJECTED TO.
IT IS REALLY BETTER FOR THE
WHOLE DEATH PENALTY JURISPRUD
THAENZ WE GET THIS CLEAR
JURISPRUDENCE!!$$!!!!!!!!!!!!!!!!!!!!!!!!
JURISPRUDENCE, THAT WE GET
THIS CLEAR SO WE DON'T HAVE
PROSECUTORS MAKING ARGUMENTS
THAT HAVE BEEN CONDEMNED, AND
SO I ASK YOU, AGAIN, IS NOT
THAT ONE CLEAR WHAT WE HAVE
CONDEMNED FOR THE LAST 20
YEARS?
>> I THINK, THIS -- SENTENCED
HERE, WITH THE ADDITION AT THE
END OF THAT SENTENCED PROBABLY
IS AMONG THOSE THAT THIS COURT
HAS CONDEMNED, HOWEVER.
>> WOULD YOU GO BACK THEN
ANSWER JUSTICE WELLS QUESTION
YOU HAVE ANSWERED THAT.
>> BASED UPON URBAN, AND
ROADS,AND RICHARDSON, JUDGE
DOWNEY MADE AN ERROR WHEN HE
OVERRULED THAT OBJECTION, AND
LET ME COUPLE THAT THEN WE GO
TO THIS ARGUMENT THAT IS NOW
THAT IS ONE MINUTE, HOW MANY
THOUGHTS WENT THROUGH YOUR
MIND IN THAT ONE MINUTE?
IT SEEMS TO -- HOW IS THAT NOT
A GOLDEN RULE ARGUMENT?
>> I DON'T THINK, I DON'T
THINK IT IS, I THINK HE IS
ARGUING HE HAS GOT TO BE
ARGUING THIS IS TORTIOUS CRUEL
QUALITY THE DEFENDANT WAS
ARGUING AT LEAST -- THE
TESTIMONY, WHEN STATE ONCE
WERE BEING CROSS-EXAMINED BY
THE DEFLT, THE DEFENDANT WAS
TRYING TO MAKE THE POINT, THAT
THIS WAS A VERY QUICK DEATH.
AND THEREFORE THE HEINOUS --
>> QUINTESSENTIAL DEFINITION
OF A GOLDEN RULE ARGUMENT THAT
YOU ARE ASKING THE JURY TO PUT
ITSELF IN THE PLACE OF THE
VICTIM?
THAT IS A GOLDEN RULE.
AND WHEN YOU ASK THE JURY YOU
SAY -- THAT IS A MINUTE, HOW
MANY THOUGHTS WENT THROUGH
YOUR MIND IN ASKING THAT OF
THE JURY THAT CONCERNS ME THAT
THAT THAT IS A GOLDEN RULE
ARGUMENT AND WHEN YOU COUPLE
THAT WITH THIS MERCY ARGUMENT
THAT IT IS HARD TO SAY THAT
THIS ARGUMENT WASN'T -- THAT
IS WHAT I DON'T -- I NEED SOME
HELP FOR.
>> I THINK THE MINUTE
REFERENCE, AGAIN, GOES BACK TO
THE PROSECUTOR$$'S ATTEMPT TO
EXPLAIN TO THE JURY THAT IN
TERMS OF THE VALID HAC
AGGRAVATE!!$$!!!!!!!!!!!!!!!!
AGGRAVATOR, THAT THE DEFENSE'
CONTENTION THAT THIS WAS A
QUICK DEATH OR THAT THIS WAS
VICTIM DIDN'T SUFFER FROM MUCH
BECAUSE IT WAS ONLY HE ONLY
STAYED ALIVE FOR A MINUTE OR
WAS ATTEMPTING TO BREATHE FOR
A MINUTE OR SOMETHING OF THAT
NATURE, QUALIFIED QUALIFIED
FOR THE HAC FACTOR SO I DON'T
THINK YOU KNOW, I DON'T REALLY
THINK HE IS SAYING WHAT -- PUT
YOURSELF IN THE SHOES OF THE
VICTIM BUT I MEAN I DON'T KNOW
HOW ELSE I DON'T KNOW HOW ELSE
TO TALK ABOUT HAC WITHOUT IN
SOME RESPECT INVOLVING THE
VICTIM, INTO THE CONVEYION.
>> LANDRY I THINK THE QUESTION
WAS -- RAISED BY TWO JUSTICES
NUMBER ONE, THE MERCY
ARGUMENT, ASSUMING THAT THAT
WAS IMPROPER 34ERSY ARGUMENT
AND THAT JUSTICE WEALTHS WAS
ASKING YOU -- HE WELLS ASKING
YOU WE HAVE THE GOLDEN RULE ON
TOP OF IT TELL HIM HOW THIS
WAS NOT HARMFUL WITH THOSE IF
-- THOSE ARE THE CASE IF THAT
IS WHAT THE VIEW IS I THINK
THAT IS WHAT THE QUESTION IS
YOU COULD RESPOND TO THAT.
>> WELL, THE MINUTE, THAT
ALLEGED GOLDEN RULE WASN'T
OBJECT!!$$!!!!!!!!!!
OBJECTED, IT APPARENTLY DID
NOT OCCUR TO THE DEFENSE
COUNSEL.
>> ALL RIGHT THAT WAS NOT
OBJECTED SO HE IS ASKING YOU
THEN, HOW WAS IT NOT HARMFUL.
>> WELL, I THINK, I THINK,
THAT WHEN YOU WHEN YOU LOOK AT
THE TOTALITY OF THE CASE,
CASES!!$$!!!!!!!!
CASES, AND IN THIS FACTS OF
THIS CASE, IT IS QUITE CLEAR,
THAT THE RECOMMENDATION OF
DEATH WAS APPROPRIATE IT WAS
IRRESPECTIVE OF THE REMARK
ABOUT MERCY, YOU HAVE CLEARLY,
A HEINOUS -- CRUEL KILLING THE
VICTIM BEING STABLED, 20 --
STABBED 20 TIMES DEFENDANT
ADMITTING TO HIS COMPANION AND
TO OTHER PEOPLE THAT HE HAD
CUT INTO THE VICTIM'S NECK HE
WANTED TO TWIST IT TO MAKE
SURE THAT HE DIED --
>> -- THERE WAS TESTIMONY
PRESENTED AT TRIAL ABOUT
PEOPLE AT THE SCENE APPARENTLY
HEARD THE MAY HAVE TO GOING
INTO HIS HEAD.
>> IN REGARDS TO TWISTING
TALKING ABOUT IS NOT THERE
QUESTION HERE WHEN OR NOT THAT
WAS APPLICABLE, WHETHER THOSE
STATEMENTS SHOULD HAVE BEEN
REPEATED IN THIS CASE?
THAT -- I BELIEVE THAT THE
DEFENSE MADE AN ARGUMENT THAT
THE STATEMENT OF HIM THE
STATEMENT HE MADE THE
STATEMENT -- HE CORRECT.
>> TO THOMAS THERE IS SOME
QUESTION ABOUT WHEN OR NOT,
THAT STATEMENT REALLY SHOULD
HAVE COME IN, AND THAT THE
PROSECUTOR!!$$!!!!!!!!!!!!!!!!!!
PROSECUTOR, THEN USED IT THREE
DIFFERENT TIMES, IN HIS
ARGUMENT.
ON THE SAME -- ATROCIOUS AND
CRUEL --
>> I DON'T KNOW, IN WHAT
CONTEXT THE DEFENSE MAY HAVE
SAID IT SHOULDN'T HAVE COME IN
I THINK IT SHOULD HAVE COME IN
IT DEMONSTRATES THE HAC KWAILT
OF IT.
-- QUALITY OF IT.
IT DEMONSTRATES, THAT -- YOU
KNOW, HIS THE ATTITUDE, OF THE
DEFENDANT IN THIS CASE, WOULD
LEAD TO DEATH --
>> I DON'T WANT TO WE GET OFF
YOUR STRIDE HOW THIS CASE IS
SO HAIN OIS ATROCIOUS A
HEINOUS ATROCIOUS AND CREW
SNOOEL AGAIN IT IS VERY CLEAR
AT THIS MULTIPLE STABBING OF
THIS OVER A FIGHT WHICH.
>> VICTIM WASN'T EVEN
PARTICIPATE$$!!!!ING THE DEFENDANT
WENT OFF AND -- GOT THE KNIFE
FROM THE CAR CAME BACK
ASSAULTED THIS MAN STABBED HIM
20 TIMES, YOU HAVE THAT PLUS
YOU HAVE THE PRIOR VIOLENT
FELONY CONVICTION AGGRAVATE$$!!OR,
WHICH CONSISTS OF -- FIVE,
FIVE ARMED ROBBERIES WITH A
KNIFE THAT THIS DEFENDANT
COMMITTED, PREVIOUSLY TO THIS
TO THIS INCIDENT.
>> NOW WHAT YOU ARE REALLY
SAYING IS BECAUSE IT IS AN
OVERWHELMING DEATH-PENALTY
CASE!!$$!!!!!!
CASE, REALLY, THE THING SAID
IN CLOSING ARGUMENT COULDN'T
BE FUNDAMENTAL ERROR I JUST
WANTED TO ADD TO AND JUST MAKE
SURE, TO SEE IF YOU AGREE OR
DISAGREE THAT THESE WOULD BE
IMPROPER!!$$!!!!!!!!!!!!!!
IMPROPER.
HOW MANY BOOKS COULD NEWTON
HAVE PARADE!!$$!!!!!!!!!!HEED READ IF HE STILL HAD
LIVED IS THAT CONDEMNED BY US
AN IMPROPER ARGUMENT?
I DON'T I DON'T KNOW THIS
COURT HAS CONDEMNED OR NOT I
DON'T KNOW IF THIS COURT HAS
SEEN THAT COMMENT.
>> SO YOU DON'T KNOW THAT
THERE ARE CASES THAT SAY THAT
HOW MANY BOOKS A VICTIM COULD
HAVE READ DURING THE SAME
PERIOD OF TIME WHETHER THAT IS
PROPER OR IMPROPER.
>> NO BUT I THINK, IF I'M
TRYING TO RECALL, THE WHAT ARE
THAT TESTIMONY WAS GOING, WAS
THE DEFENDANT WAS SAYING THAT
IN HIS ARGUMENT, IN HIS
PRESENTATION OF THE CASE THAT
HE IS A CHANGED MAN THAT HE IS
DIFFERENT OVER THE LAST TEN OR
15 YEARS -- IMPROVED HIMSELF
ALL OF THAT.
>> IS THAT THAT IS WERE THEY
SUGGESTED IT WAS DEFENSE
STRATEGY IT WERE A AS MERE
STRATEGY THAT IF FOR THE
DEFENSE TO HAVE HAD MERCK READ
THE BOOKS THAT IS IMPROPER TO
SUGGEST THAT IT WAS A DEFENSE
STRATEGY.
>> I THINK THAT CAME OUT IN
THE TESTIMONY.
THAT CAME OUT IN THE TESTIMONY
AT LEAST THAT WAS THE --
CERTAINLY THE PART OF THE
CROSS-EXAMINATION!!$$!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
CROSS-EXAMINATION -- MERCK
TESTIFIED, THAT HE -- OVER THE
LAST TWO YEARS, HE CHANGED,
TURNED HIS LIFE AROUND, AND
THE QUESTION I CAN'TS DID YOU
DO THAT, AND HE SAID WELL
BECAUSE, I -- PSYCHOLOGIST I
WORKED WITH AND MY DEFENSE
ATTORNEY TEAM TOLD ME THAT I
HAD SOME POTENTIAL AND I
SHOULD USE THIS, TO -- STATE
CROSS-EXAMINED THAT SAID, WELL
THEY SUGGESTED THAT YOU USE
THIS, AND -- SO I THINK THAT
COMMENT WAS -- IT WAS
PREDICATED BASED ON THE
CROSS-EXAMINATION BY THE
PROSECUTOR OF THE --
>> THANK YOU VERY MUCH SIR
WITH YOUR -- OUR HELP YOU USED
UP ALL YOUR TIME.
>> THANK YOU REQUEST THE COURT
TO AFFIRM THE 2000.
>> THANK YOU.
>> ABOUT TWO MINUTES.
>> I HAVE GIVEN FURTHER
THOUGHT TO THE IDEA JUST
STRIKING WITHOUT POSSIBILITY
OF PAROLE, AND I BELIEVE, THAT
THAT IS STILL COULD BE
PROBLEMATIC!!$$!!!!!!!!!!!!!!!!!!!!
PROBLEMATIC, IN SIMMONS,
PROGENY!!$$!!!!!!!!!!!!
PROGENY, AND I BELIEVE IN
SIMMONS THERE IS DISCUSSION
ABOUT ALL OF THESE SURVEYS,
AND -- ABOUT ATTITUDES, THE
PUBLIC TOOED, RATHER -- TOOED,
RATHER, AND -- ATTITUDE, I
BELIEVE THERE IS A REAL BELIEF
A PREVALENT BELIEF THAT LIFE
DOESN'T MEAN LIFE, AND I THINK!!$$!!!!!!!!
THINK, THAT THIS THAT THE
PROBLEM IN THIS CASE, PROBABLY
WOULD NOT HAVE BEEN CURED JUST
IF THERE HAD NOT BEEN A
MENTION OF THE POSSIBILITY OF
PAROLE!!$$!!!!!!!!!!
PAROLE.
CERTAINLY, THAT INSTRUCTION
HELPED TO FRAME THE $$JURY'S
CONCERN ABOUT THIS ISSUE, AND
CLEARLY THEY WERE CONCERNED,
THEIR QUESTION SHOWS THAT THEY
WERE CONCERNED.
ABOUT HIS RELEASE.
THE FACT THAT THE JURY WAS
CONFUSED AND CONCERNED ABOUT
HIS RELEASE WAS NOT FULLY
AWARE OF THE CIRCUMSTANCES
THAT HIS RELEYS RELEASE WAS
NOT IMMINENT --.
>> THIS SITUATION EXCEPT AN
OPPORTUNITY TO PRESENT THIS
MATRIX AND ALL THIS
INFORMATION!!$$!!!!!!!!!!!!!!!!!!!!
INFORMATION, ABOUT HE WILL NOT
BE -- PAROLED FOR -- A NUMBER
OF I CAN'TERS.
>> I BELIEVE THAT IN THE PROP!!$$!!!!!!
PROPER CASE IT MAY BE
APPROPRIATE TO PRESENT SOME
EVIDENCE AS TO THE POSSIBILITY
OF THE $$DEFENDANT'S RELEASE, OF
COURSE!!$$!!!!!!!!!!
COURSE, A $$DEFENDANT'S
CONVICTION MAY THERE IS ALWAYS
GOING TO BE SPECULATIVE STUFF
ABOUT THE CONVICTION, IS THIS
CONVICTION GOING TO BE OVER
TURNED.
IS IT TO GO TO GO GET
POSTCONVICTION RELIEF IS HE
GOING TO GET A PARDONON FROM
THE GOVERNOR THERE IS ALL
THESE SPECULATE$$!!!!IVE THINGS THAT
YOU CAN -- EVEN IN SIMMONS
WHSHGS ALL THIS FLOWS OUT OF,
THERE HAD NOT BEEN A
DETERMINATION YET, THAT HE
WOULD NOT GET PAROLE.
THERE WAS A THERE -- THE PA
PHENOMENA PAROLE BOARD WAS TO
MAKE DETERMINATION WHEN OR NOT
BE BE ELIGIBLE FOR PAROLE,
BECAUSE THIS PRIOR CONVICTION
IT SHOULD BE A FOREGONE
CONCLUSION IN SIMMONS THAT HE
WOULD NOT BE ELIGIBLE BUT THAT
DETERMINATION WASN'T YET MADE.
WE ARE ALWAYS DEALING WITH
SPECULATIVE MATTERS, IN ALL
THIS.
ULTIMATELY, MY CLIENT DID NOT
RECEIVE A FAIR TRIAL.
THERE WAS NINE TO THREE DEATH
RECOMMENDATION!!$$!!!!!!!!!!!!!!!!!!!!!!!!!!
RECOMMENDATION, AT THE HAD
THERE NOT BEEN IMPROPER ARTHS,
ARGUMENTS HAD JURY NOT BEEN
CONCERNED ABOUT IMMINENT
RELEASE OF MR. MERCK FROM
PRISON, THIS MAY WELL HAVE
COME OUT DIFFERENTLY.
HE NEEDS ANOTHER SENTENCING
PROCEEDING.
>> THANK YOU VERY MUCH, SIR WE
APPRECIATE THE ARGUMENTS WE'LL
TAKE THE CASE UNDER ADVISEMENT
THE COURT WILL STAND IN RECESS!!$$!!!!!!!!!!
RECESS.
>> PLEASE RISE