IN AND FOR MIAMI-DADE COUNTY, FLORIDA

COMES NOW the defendant, DIETER RIECHMANN, by and through undersigned counsel and hereby files closing argument in support of granting him post-conviction relief. The instant argument follows an evidentiary hearing conducted before this Court on May 23, May 31, and July 11-12, 2002. In support of his claims, Mr. Riechmann states as follows:

With the exception of the May 23, 2002 testimony of Beth Sreenan, the evidentiary hearing transcripts have not yet been prepared or served on counsel. Therefore, representations regarding the testimony given will be according to the best recollection and notes of counsel. Any evidence introduced during the hearing will be referred to by a description of the exhibit. References to the original record on appeal from Mr. Riechmann’s trial will be referred to as "R. ___", with appropriate page number(s) inserted, enclosed by parentheses. References to Mr. Riechmann’s first post-conviction proceedings will be referred to as "PC-R. ___" with the appropriate page number(s) inserted, enclosed by parentheses.

I. INTRODUCTION.

At the heart of Mr. Riechmann’s pending motion to vacate is his claim of innocence. Dieter Riechmann maintained at trial and still maintains that he did not commit the murder of Kersten Kischnick. The State’s circumstantial case against Mr. Riechmann was support by the testimony of jailhouse informant Walter Smykowski and questionable forensic evidence related to blood spatter and gun-shot residue. At the 1996 evidentiary hearing, weakness in the blood spatter and gun-shot residue evidence was exposed. A new trial was not ordered because confidence was not undermined in the outcome in light of the trial testimony of Smykowski. The trial testimony of Smykowski thus, became the remaining lynchpin of the conviction upon which the weight of the conviction came to rest. Smykowski’s testimony was critical to the denial of Mr. Riechmann’s request for a new trial.

The circuit court in 1996 did vacate Mr. Riechmann’s death sentence and did order a re-sentencing. The Florida Supreme Court affirmed . State v. Riechmann, 777 So.2d 342 (Fla. 2000). With the new information uncovered by Mr. Riechmann and presented at the 2002 evidentiary hearing considered cumulatively with the evidence previously presented, confidence in the reliability of the outcome of Mr. Riechmann’s trial is now undermined. Kyles v. Whitley, 514 U.S. 419 (1995).

At the evidentiary hearing conducted in May, June and July of this year, Mr. Riechmann presented: 1) evidence that significant exculpatory information was withheld from the defense at trial, and 2) evidence that someone else committed the murder of Ms. Kischnick. Mr. Riechmann asserts not only his innocence, but that he is entitled to a new trial on the basis of this evidence. The jury never heard evidence that someone else committed the crime but instead relied on testimony that has now been shown to have been false and misleading, and went uncorrected by the State.

Between the time this Court ordered the evidentiary hearing and the time that the hearing commenced, there were new discoveries and new disclosures. As a result, the evidence presented does not directly correspondent to the pending Rule 3.850 motion. This is not an unusual development in Rule 3.850 proceedings. In Jones v. State, 709 So.2d 512, 518 (Fla. 1998), evidence of Brady violation was discovered on the eve an evidentiary hearing. There, the defendant was permitted to present the evidence and allowed to subsequently orally amend his successor Rule 3.850 motion to include a previously unpled Brady violation. Cf. Way v. State, 760 So.2d 903, 916 (Fla. 2000)(no error where testimony was excluded by the judge at the evidentiary hearing as outside the scope of the 3.850 motion because "Way never attempted to amend his postconviction motion," not even during the appeal). Accordingly within this closing memorandum, Mr. Riechmann moves to amend his Rule 3.850 to conform with evidence that he presented at the hearing, some without objection, some over objection.

The previously pled claims should be amended to include: 1) the State violated due process by not disclosing at trial and in the post-conviction process evidence regarding Smykowski’s state-arranged visit with his daughter that was favorable to Mr. Riechmann because it provided impeachment of his trial testimony (Lightbourne v. State, 742 So.2d 238 (Fla. 1999)); 2) the State knowingly allowed misleading or false testimony to be presented without correction when Smykowski testified that he had no contact with law enforcement between March, 1988, and July 27, 1988, two days before he testified in front of Mr. Riechmann’s jury and that he received no benefit for his testimony other than possible a letter (Giglio v. United States, 405 U.S. 150 (1972)); and 3) newly-discovered evidence of innocence in the form of an eyewitness account of the shooting of Kersten Kishnick (Jones v. State, 591 So.2d 911 (Fla. 1991)). On the merits, these claims must be evaluated cumulatively, with each other and with the previously presented claims. State v. Gunsby, 670 So.2d 920 (Fla. 1996). When the proper analysis is conducted, Mr. Riechmann must be afforded a trial that is a true adversarial testing within the meaning of the constitutional guarantee.

II. THE STATE WITHELD EXCULPATORY INFORMATION AND FAILED TO CORRECT FALSE OR MISLEADING TESTIMONY IN VIOLATION OF THE EIGHTH AND FOURTEENTH AMENDMENTS.

A. Introduction.

On April 18, 2002, the prosecution disclosed for the first time that Walter Smykowski was taken out of federal custody by state law enforcement officers to visit his then eight-year-old daughter, Deborah Schaefer, at her residence, a non-custodial setting. In an amended witness list, the State the set forth, "11. Mr. Smykowski was taken to visit his family by Detectives Hanlon and Matthews and one of them paid for fried chicken." This disclosure occurred fourteen years after Smykowski testified at Mr. Riechmann’s trial that between March of 1988 and July 27, 1988, two days before his testimony, he had no contact with law enforcement or anyone from the State Attorney’s office ( R. 4143). This occurred fourteen years after Smykowski testified that he received no benefit for his testimony, other than the possibility that at some point in the future the prosecutor might write a letter on his behalf.

At a hearing on May 9, 2002, counsel for Mr. Riechmann argued that the April 18^th disclosure warranted discovery depositions of Detectives Hanlon and Matthews regarding federal-prisoner Smykowski’s state-arranged visit with his daughter. ASA Reid Rubin reported that he had disclosed the visit as soon as he learned that it had occurred. In light of the April 18^th disclosure, this Court permitted discovery depositions of the detectives, but limited to only to federal prisoner Smykowski’s state-arranged visit with his daughter.

During the proceedings on May 23^rd, Mr. Riechmann’s counsel questioned Mr. Riechmann’s trial prosecutor, Beth Sreenan, regarding Smykowski’s state-arranged visit with his daughter. During the proceedings counsel for Mr. Riechmann offered Detective Hanlon’s trial deposition as an exhibit. When the State objected on relevancy grounds, the following occurred:

MR. MCCLAIN: Your Honor, as was indicated last week or two weeks ago, the State has recently disclosed - - it’s item number eleven on the witness list - - that Detective Hanlon and Matthews took Walter Smykowski to visit his family and bought chicken.

I’m alleging a Brady claim based upon that and I think the foundation of that requires sort of the whole history, the chronology of the information that was provided or not provided to the defense attorney, Mr. Carhart.

This is something that shows information that was provided to Mr. Carhart.

In determining whether or not there is a Brady violation, I think Your Honor has to know what was disclosed and what wasn’t.

THE COURT: Anything further?

MR. RUBIN: My position is that it’s non sequitur. It does not flow from whatever is stated in that deposition that the information was or was not provided. I provided it. Apparently, it was not provided before. I don’t think that is an issue[.] [W]hether Mr. Smykowski was taken out on one occasion and fried chicken was supplied[,] [t]hat is one thing.

The other thing is, my understanding, although I don’t have a complete history of the procedure, is that this matter was covered previously as to giving or given in that particular police report.

(May 23, 2002, transcript at 13-14)(emphasis added). Thus, it is undisputed that the information regarding federal-prisoner Smykowski’s state-arranged visit with his eight-year-old daughter was not disclosed to Mr. Riechmann prior to the April 18, 2002, disclosure.

B. Overview of Applicable Legal Principles.

To insure a constitutionally adequate adversarial testing and a fair trial occur, certain obligations are imposed upon the prosecuting attorney. The prosecutor is required to disclose to the defense evidence "that is both favorable to the accused and ‘material either to guilt or punishment.’" United States v. Bagley, 473 U.S. 667, 674 (1985), quoting Brady v. Maryland, 373 U.S. 83, 87 (1963). In Strickler v. Greene, the Supreme Court reiterated the "special role played by the American prosecutor" as one "whose interest . . . in a criminal prosecution is not that it shall win a case, but that justice shall be done." 527 U.S. 263, 281 (1999), quoting Berger v. United States, 295 U.S. 78, 88 (1935). Hoffman v. State,800 So.2d 174 (Fla.. 2001); State v. Huggins,788 So.2d 238 (Fla. 2001); Florida Bar v. Cox, 794 So.2d 1278 (Fla. 2001). The State’s duty to disclose exculpatory evidence is applicable even though there has been no request by the defendant. Strickler at 280. The State also has a duty to learn of any favorable evidence known to individuals acting on the government's behalf. Id. at 281. "It is irrelevant whether the prosecutor or police is responsible for the nondisclosure; it is enough that the Staate itself fails to disclose." Garcia v. State, 622 So.2d 1325, 1330 (Fla. 1993). "The State is charged with constructive knowledge and possession of evidence withheld by other state agents, including law enforcement officers." Jones v. State, 709 So.2d 512, 520 (Fla. 1998).

The Florida Supreme Court has held that, "the State is under a continuing obligation to disclose any exculpatory evidence." Johnson v. Butterworth, 713 So.2d 985, 987 (Fla. 1998); see also Roberts v. Butterworth, 668 So.2d 580 (Fla. 1996)(finding that Brady obligation continues in post-conviction). In Ventura v. State, 673 So. 2d 479 (Fla. 1996), the Florida Supreme Court said, "The State cannot fail to furnish relevant information and then argue that the claim need not be heard on its merits because of an asserted procedural default that was caused by the State's failure to act."

Exculpatory and material evidence is evidence of a favorable character for the defense which creates a reasonable probability that the outcome of the guilt and/or capital sentencing trial would have been different. Garcia v. State, 622 So. 2d at 1330-31. This standard is met and reversal is required once the reviewing court concludes that there exists a "reasonable probability that had the [unpresented] evidence been disclosed to the defense, the result of the proceeding would have been different." Bagley, 473 U.S. at 680. The Florida Supreme Court has recognized that the failure to disclose that the payment of "ten dollars" to a witness may undermine confidence in the reliability of a conviction where the payment could have been used to impeach the witness by showing that the witness had an undisclosed relationship with the State that demonstrated the witness’ bias or motive in testifying. Gorham v. State, 597 So.2d 782, 784 (Fla. 1992).

In Giglio v. United States, 405 U.S 150 (1972), the Supreme Court held that due process precludes a prosecutor from knowingly presenting false or misleading testimony while seeking a conviction. A prosecutor is obligated to correct such false or misleading testimony if he knows that it is false. Accordingly, post-conviction relief is warranted if such a violation of due process is revealed and if the false testimony "could ... in any reasonable likelihood have affected the judgment of the jury." Williams v. Griswald, 743 F. 2d 1533, 1543 (11th Cir. 1984) (quoting Giglio, 405 U.S. at 154). The standard for meeting the prejudice prong of Giglio is less onerous than for a Brady violation. United States v. Agurs, 427 U.S. 97 (1976). Under Giglio, where the prosecutor knowingly misleads the jury, the court, or defense counsel, the conviction must be set aside unless the error is harmless beyond a reasonable doubt. Gray v. Netherland, 116 S.Ct. 2074, 2082 (1996); Kyles v. Whitley, 115 S.Ct. 1555, 1565 n.7 (1995).

C. The Evidence at the 2002 Hearing.

Detectives Robert Hanlon and Joe Matthews of the Miami Beach Police Department confirmed in their testimony on July 12, 2002, that federal-prisoner Smykowski was taken on a state-arranged trip to see his eight-year-old daughter at her residence. Detective Hanlon testified that they picked Smykowski up at the Dade County Sheriff’s Stockade pursuant to Smykowski request. Both Smykowski and his wife were incarcerated in federal institution serving federal sentences. According to Hanlon, police detectives took Smykowski to see his daughter because Smykowski was worried about her. Hanlon testified that the detectives bought fried chicken to eat at the get together. Hanlon testified that he might have told prosecutors what they were doing, but did not recall. He said Smykowski was grateful and said "Thank you." See, Hanlon testimony of July 12, 2002.

Detective Matthews said he and Hanlon took Smykowski out of custody to conduct further "investigation" in Mr. Riechmann’s case and on the way back to the stockade took Smykowski to visit his daughter. According to Matthews, there was more than one occasion that Smykowski was taken out of custody to conduct further "investigation." On the occasion that Smykowski was taken to see his daughter, Matthews bought fried chicken for Smykowski’s family out of his own pocket. Contrary to Hanlon’s testimony, Matthews said they did not inform the state attorneys and decided to make the trip on their own. He confirmed that they did not put handcuffs on Smykowski and they wore plain clothes for the visit. See, Testimony of Matthews July 12, 2002.

A friend of Smykowski, John Skladnik, testified that he was visiting Smykowski’s mother-in-law and Deborah Schaefer when he saw Smykowski and two men walking up the sidewalk toward the house. Smykowski was not in handuffs. The officers were not in uniform. He spoke with them briefly and then left.

Ms. Schaefer, formerly known as Debbie Smykowski, testified that when she was eight years old, she saw her father on one occasion while she was staying with her grandmother. Her father was accompanied by two men.

At trial, Mr. Riechmann’s counsel, Mr. Carhart, knew there was something wrong when he discovered in Mr. Stitzer’s deposition that he had been making phone calls to Smykowski’s eight-year-old daughter. Mr. Carhart tried to explore that area of discovery because he knew from Smykowski that the welfare of his daughter was very important to him. However, the State objected to Mr. Carhart’s effort to discover the nature of the relationship between Stitzer and Debbie Schaefer and instructed Stitzer not to answer the questions. Ms. Sreenan testified that she did not feel the inquiry was relevant and she was trying to protect the location of the daughter (May 23, 2002 transcript at 26-27). Yet, Ms. Sreenan said that she felt no obligation to protect Debbie when she found out that Debbie did not have a place to stay because both of her parents were incarcerated. Ms. Sreenan said she did not contact DCF or any outside agency regarding the welfare of the child (May 23, 2002, transcript at 23, 37).

Ms. Sreenan had received a letter from Smykowski that was dated March 27, 1988, in which Smykowski requested assistance in providing care for his daughter (Def. Ex. C). Ms. Sreenan testified, "My recollection is that we did nothing" (May 23, 2002, transcript at 23). Ms. Sreenan did elaborate, "It would seem to me I would remember if we did something, and this isn’t the type of thing that you normally get involved in" (May 23, 2002, transcript at 23). Ms. Sreenan did not notify Mr. Carhart that she had received this letter from Smykowski concerning his daughter because she felt "personal conversations were beyond the scope of discovery" (May 23, 2002, transcript at 27-28). Ms. Sreenan acknowledged that had she known about Smykowski’s trip to see his daughter she "probably" would have disclosed it to the defense (May 23, 2002, transcript at 43). According to Ms. Sreenan, she was obligated to disclose any "benefit [Smykowski] received and the defense was entitled to know" (May 23, 2002, transcript at 30).

In 2002, Mr. Carhart testified that he did not know Smykowski had written a letter to Ms. Sreenan in March, 1988 asking for assistance for his daughter. Mr. Carhart said he had no indication that Smykowski had been taken out of custody to visit his daughter. Mr. Carhart considered that to be a benefit to Mr. Smykowski that should have been disclosed to the defense. He said he would have used that information to impeach Smykowski at trial. See, Testimony of Mr. Carhart, July 11, 2002. Mr. Carhart also said that had he known this information, he would have objected to the false testimony of Smykowski when he lied and said that he had no contact with the prosecutors or law enforcement between March of 1988 and two days before the trial on July 27, 1988 (R. 4142-43 ).

D. Brady Analysis.

In Strickler v. Greene, 527 U.S. at, 287-288, the Supreme Court specifically delineated the "three components of a true Brady violation." They are: 1)"The evidence at issue must be favorable to the accused;" 2) "that evidence must have been suppressed by the State, either willfully or inadvertently;" and 3) "prejudice must have ensued."

Before trial in 1997, Judge Sepe ruled that Mr. Riechmann was to get "carte blanche" discovery -– Total. No ifs ands or buts, no conditions. Whatever the State has, he gets." (R. 634). Judge Sepe’s reasoning was that years later Mr. Riechmann would discover that he had not been given everything and he would be entitled to at trial. Fifteen years later, the State has fulfilled the prophecy made by Judge Sepe. On April 18, 2002, for the first time, the State disclosed that federal-prisoner Smykowski had requested and received a state-arranged trip to visit his eight-year-old daughter at her residence, a non-custodial setting. This was an undisclosed benefit to Smykowski. Detective Hanlon acknowledged the trip was arranged at Smykowski’s request. Earlier, Smykowski had written Ms. Sreenan expressing concern for his daughter and seeking assistance regarding her. Ms. Sreenan indicated that had she know of the trip to Smykowski’s daughter’s house, she probably would have disclosed it. Even ASA Rubin acknowledged in his statements to this Court that the state-arranged trip had been undisclosed until he disclosed it on April 18, 2002 (May 23, 2002, transcript at 14). When ASA Rubin learned of it, he immediately disclosed it. Mr. Carhart tesified that the state-arranged trip was favorable evidence for the defense and that he would have used it had he known about it.

As to the finally component of "a true Brady violation," prejudice is present when "the cumulative effect of the suppression of the materials [ ] undermines confidence in the outcome of the trial." Rogers v. State, 782 So.2d 373 (Fla. 2001). As the United States Supreme Court explained in Kyles v. Whitley, 514 U.S. at 436, "The fourth and final aspect of Bagley materiality to be stressed here is its definition in terms of suppressed evidence considered collectively, not item by item." (emphasis added). Accordingly, this Court must evaluate the failure to disclose the state-arranged trip to the daughter’s house cumulatively with the Brady material that Mr. Riechmann present in the 1996 proceedings.

The United States Supreme Court has cautioned that in showing materiality, petitioners:

need not demonstrate that after discounting the inculpatory evidence in light of the undisclosed evidence, there would not have been enough left to convict. The possibility of an acquittal on a criminal charge does not imply an insufficient evidentiary basis to convict. One does not show a Brady violation by demonstrating that some inculpatory evidence should have been excluded, but by showing that the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict.

Kyles v. Whitley 514 U.S. at 435-6.

In 1996, Judge Gold found that the State, in fact, withheld portions of favorable police reports at trial (PC-R. 6067) and that the State had withheld the German witness statements from the defense (PC-R. 6077-78). A new trial was not ordered because those nondisclosures without more did not undermine Judge Gold’s confidence in the reliability of the jury’s guilty verdict.

At the 1996 evidentiary hearing, the State admitted to withholding numerous witness statements taken in Germany prior to trial. These witness statements are now "lost." (PC-R. 5505, 5508, 5513). The Florida Supreme Court, without seeing these documents, concluded prejudice was established as to the penalty phase, and ordered that they be turned over to Mr. Riechmann for use at his new sentencing proceeding.

The only judge who ever saw these documents was Judge Solomon who had ex parte communications with the State. Judge Solomon stated that he considered the documents to be good mitigation because they dealt with the relationship between Mr. Riechmann and victim. This was precisely the type of information that Mr. Carhart needed to rebut the evidence the State used to establish motive at the guilt phase. Motive is essentially a guilt phase issue. The sanction for the loss of these 37 German witness statements, that the Florida Supreme Court ordered to be turned over, should be a new guilt phase when cumulative consideration is given to all of the nondisclosures.

ii. police report from Detective Trujillo.

Exculpatory portions of Detective Trujillo’s police report that contained statements that were favorable to the defense were redacted from the copy of the report provided to Mr. Riechmann’s trial counsel (PC-R. 5482-5489 ). The redactions were significant to the blood spatter evidence presented by the State at trial. The complete 11/2/87 police report of Detective Trujillo concerning the window height was introduced at the 1996 hearing (Def. Ex. AA). The unredacted version of the report was never provided to defense counsel. Introduced as Def. Ex. BB was the report in the form given to defense counsel. The withheld paragraph said:

Crime lab stated that the window had to be all down but subject claimed window was half down for security.

The State could not explain its failure to disclose this Brady information. Ms. Sreenan argued that "somebody made a mistake...I would say that report is wrong."(PC-R. 4718). "The author of that report didn’t always have all the facts straight" (PC-R. 4737). The State admitted at the 1996 evidentiary hearing that the reports would have been favorable to the defense. Even Mr. DiGregory, the lead prosecutor at trial, said that defense counsel could have used this information to rebut the State’s contention that the lead particle gun residue on Mr. Riechmann came from reaching his hand protectively at the muzzle of the gun instead of the breach, just as he had repeatedly told police.

Judge Gold held the that redacted portions of Detective Trujillo’s report were improperly withheld by the State; but, he did not find the nondisclosure to have undermined confidence in the reliability of the jury’s verdict, in light of the testimony of Smykowski. Thus, undisclosed impeachment evidence of Smykowski now undermines confidence in the guilty verdict.

Three police reports of Detective Hanlon were also not disclosed. These reports showed that the State’s expert, upon his examination of the rental car, said that "the passenger window was no more than six inches from being fully closed at the time of the shooting. Def. Ex. HHH " Not the 3 to 3 and a half inches he testified to at deposition and at trial. The same six inch measurement taken by the state serologist was repeated in two other withheld police reports. These reports contained impeachment information.

Mr. DiGregory acknowledged at the 1996 evidentiary hearing that there were deletions from the police reports, but he did not know who made them -- himself, Sreenan or someone at his direction. He agreed that the police reports contradicted each other (PC-R. 5477, 5482, 5483). The redactions kept defense counsel from knowing about the internal inconsistencies.

After Judge Gold had entered his order denying relief, Mr. Riechmann’s collateral counsel discovered that the State had also withheld the notebook of the police officer who had inventoried Mr. Riechmann’s rental car the day after it was impounded. This police officer was Hilliard Veski. Sortly after the 1996 hearing, Mr. Riechmann’s collateral counsel obtained an affidavit from Officer Veski explaining the meaning of the notations contained in his notebook:

Affidavit of Hilliard Veski

Before the undersigned authority personally appeared HILLIARD VESKI who, after being duly sworn by me, deposes and states:

1. My name is Hilliard Veski. I live in Live Oak, Florida.

2. I am retired from the Miami Beach Police Department where I was employed for approximately eighteen years.

3. In October, 1987, I conducted an inventory of a red Ford Thunderbird that was allegedly driven by Dieter Riechmann at the time his girlfriend was shot and murdered inside the vehicle. The inventory was conducted at the police station approximately one and one-half days after the shooting incident at the direction of my supervisor.

4. In conducting my inventory of the vehicle, I recorded all items on a spiral-bound steno pad as well as on printed inventory sheets provided by the department. My two pages of handwritten notes of the inventory recorded on approximately October 27, 1987, are attached to this affidavit and bear my signature.

5. As reflected in the attached notes of my inventory, item #2, I found a blue and red plaid shawl draped over the right front seat, that is, the passenger seat, of the vehicle.

6. At some point, an issue arose with regard to the location of the shawl. Although the shawl was definitely on the front seat when I examined the vehicle, this was disputed by one of the assistant state attorneys handling the case. I was pressured to say that I had found the blanket in a different location, although I frankly do not recall where they wanted me to say it was found, whether it was the front seat or backset. In any event, I was not supposed to say that I had found the blanket draped over the front right seat.

7. Also as reflected in the attached notes of my inventory item # 16, I found a flashlight in the back set of the vehicle. Shortly before trial, the flashlight emerged as an important issue to one of the prosecutors. She was insistent that the flashlight, which contained possible blood evidence, was recovered from the trunk of the car, and she wanted me to say that it was taken from the trunk rather than the rear of the passenger compartment.

8. On July 7, 1988, I gave a pretrial deposition in the Riechmann case. I felt I was in an awkward position in the sense that I had been challenged by the case prosecutors on certain details of my inventory that were not consistent with what they were contending. During the deposition, I went along with what the prosecutor wanted and stated that the flashlight was recovered from the trunk.

9. After the deposition, I felt bad about giving in to the pressure that was placed on me. I had a conversation with the defense counsel and informed him that I had been pressured concerning the details of my inventory. I believe I called him, but I do not recall precisely how the conversation came about.

10. As I stated in my deposition, because the windows of the vehicle had remained closed prior to my inventory, there was a considerable amount of wet blood in the car. I was later criticized for gathering the items before the blood had dried, thereby increasing the likelihood of blood transfers and contamination of the scene, but I had been instructed to conduct the inventory at that time. I remember there was blood on my gloves afterwards, so obviously blood had in fact been transferred to some extent during the inventory. Of course, as I stated in my deposition, the vehicle had already been thoroughly processed by crime scene technicians during the one and one-half day period after the offense and prior to my entering the vehicle.

11. I was approached about these matters by counsel for Dieter Riechmann during the summer of 1996. I spoke with the attorney on the telephone several times, and he met with me on one occasion here in Live Oak. At that time, my mother had just had a serious stroke, and I was in the middle of building a house for my mother and me to live in. I was working non-stop to get my mother out of the trailer she was living in which was totally inadequate for someone in her condition. I was completely unable to focus on the questions that were being posed to me concerning the events described above due to my preoccupation with attending to my mother’s needs.

12. I was again contacted by counsel for Mr. Riechmann in the spring of 1997. At that time, I informed counsel that I had been thinking about the matters we discussed and that I had remembered much more that I was able to remember during our conversations the previous year.

13. Counsel again came to visit me to discuss these matters face-to-face, the result being the recitation of the events as described above.

This affidavit was presented to the Florida Supreme Court with a request that matter be remanded for further evidentiary development. The request for a remand was denied, although the affidavit was argued to the Florida Supreme Court as supporting Mr. Riechmann’s argument that a new trial was warranted.

An examination of Officer Veski’s depostion on July 7, 1988, reveals that in fact, a discussion ensued about the location of Veski’s spiral notebook. After Veski indicated that he had given his notebook to Detective Hanlon, the following occurred:

MR. CARHART: State, is there some reason I have not been provided with his notes.

MS. SREENAN: We don’t have them.

MR. CARHART: Was that because Hanlon won’t give them to you?

MS. SREENAN: This is the first I have heard of them. I do not know that Hanlon has them.

(7/07/88 depo. of Veski at 8-9). Thus, the notes were not turned over to Mr. Riechmann’s trial attorney.

The handwritten notes attached to Veski’s affidavit contained the following notation, "2. Shawl, blue & red plaid (R/F seat)". Thus, the notebook clearly reflects that the shawl, contrary to the State’s representation at trial, was discovered in the right front seat, i.e. the passenger seat where Kersten Kischnick was shot. This evidence renders the expert testimony that the shawl tested positive for the presence of blood, absolutely meaningless. Veski’s descriptions of his actions in the course of his inventory provides, from the defense point of view, a benign explanation for the process of blood spots along the bottom of the driver’s side window; Veski’s gloves were contaminated with blood and were moving around inside the car before the blood spots were found.

Veski’s affidavit and the three pages of notes from his steno pad must be evaluated cumulatively with the information first disclosed on April 18, 2002.

Three days after the crime, police learned that two drug dealers, one named Kool, was overheard by an informant bragging about ripping off and wasting someone. These drug dealers were selling drugs out a brown Impala. This police report was not disclosed to trial counsel. Nor was the portion of Detective Hanlon’s to do list that included inquiring of a Metro Dade policeman named Gonzalez regarding "Kool." When this police report was disclosed in postconviction, collateral counsel had no basis for demonstrating any prejudice arising from the seemingly deadend lead. However, on April 15, 2002, counsel learned for the first time that in October of 1987, Hilton Williams owned and drove a brown Impala, out of which Hilton Williams dealt drugs. Counsel also learned that Kool was an associate of Hilton Willliams.

This information corroborates Hilton Williams’ story from 1996, but this information was only disclosed to the defense in post-conviction. Trial counsel did not have this information, although he attempted to obtain this information when he deposed Detective Hanlon. Mr. Carhart testified that he had not been provided with this information and that Detective Hanlon disclose this exculpatory information when he purportedly read from the report during his deposition on April 14, 1988. In that deposition, Hanlon read every item on the to-do list except item #21, which said the police were investigating this information. Defense Exhibit A-- Hanlon Deposition at 64-74.

Hilton Williams’ startling revelation on April 15, 2002, alters the nature of the claim arising from Hilton Williams’ 1996 testimony. It converts the claim to one arising from a Brady violation. In turn, that alters Mr. Riechmann’s prejudice burden. Instead of having to prove that Hilton Williams’ testimony would probably have produced an acquittal, the question is whether the nondisclosure of the police report cumulatively with the other nondisclosure, undermines confidence in the outcome.

At the 1996 evidentiary hearing, Mr. Riechmann alleged that there was a secret deal between Smykowski and the State and that he was to receive special treatment in exchange for his testimony. The State denied offering any secret benefits to Smykowski. Mr. DiGregory was confronted with a letter he wrote to the U.S. Parole Commission noting that Smykowski was "instrumental" in achieving Mr. Riechmann’s "guilty verdict and recommendation of death in the electric chair." DiGregory went on to write that Smykowski’s "testimony was crucial because the case against Mr. Riechmann was circumstantial." The letter concluded:

I urge you in the strongest possible terms to give him the utmost consideration at his next parole review.

Defense Exhibit CC.

In 1996, Mr. DiGregory testified:

A. ...What I’m saying is that I don’t know when I wrote - - when I got the notion to write the letter. It is clear that I wrote it after the trial was over.

Q. Well, is it equally clear that you contemplated writing it during the course of the trial?

A. Sure.

(PC-R. 5490 ).

Mr. DiGregory also identified his handwritten notes that he had taken in his meeting with Robert Stitzer, the man who set up the meeting between the State and Smykowski (Def. Ex. DD). Mr. Riechmann argued that the notes appeared to say, "Reno to communicate with magistrate to have him reward." The state attorneys at the evidentiary hearing suggested the notes said, "magistrate to have him remand." Mr. DiGregory testified that the notes were his and that they said, "Reno to communicate with magistrate to have him remain" (PC-R. 5461). Mr. DiGregory said the note referred to Stitzer.

However, the context of the note indicates otherwise. The notation above the sentence in question said:

–Walter may be hostile because he’s been shipped to Eglin.

–Fraud charges are what brought Walter here.

Defense Exhibit DD.

Mr. DiGregory insisted that he "never spoke to Janet Reno about anybody remaining anywhere." However, the notes themselves are not as easily disregarded when considered with the April 18, 2002, disclosure. Mr. Riechmann alleged that Exhibits CC and DD together indicated that the intervention of Ms. Reno on behalf of a federal inmate-witness was anticipated and that ex parte communications were occurring between the federal magistrate and the state attorney’s office. Mr. DiGregory offered no explanation for why State Attorney Janet Reno would communicate with a magistrate about an inmate-witness or why Mr. DiGregory would write the note down if he did not intend to do it.

At the 1996 evidentiary hearing, Michael Klopf, a fellow prisoner of Smykowski’s, testified that Smykowski planned and intended to lie to the police about Mr. Riechmann in exchange for reduced prison time (PC-R. 4199-4205). Another federal inmate, Hans Lohse, who spent time in federal prison with Smykowski and Mr. Riechmann, said "everyone knew about Smykowski’s reputation as a snitch who was looking for short time. Smykowski had a reputation for being dishonest." Lohse said he sent a letter to Mr. Riechmann’s lawyer explaining that Smykowski was lying and that he would help expose him, but he never received a reply (PC-R. 5749-5760). Trial counsel admitted at the evidentiary hearing that he did not investigate this avenue (PC-R. 5684).

Without testimony from Smykowski, the notion that he had received favors in exchange for his testimony was inadequately supported. As a result, Judge Gold found "no undisclosed deal with Walter Smykowski" (PC-R.6064). However, the evidence disclosed on April 18, 2002, was not known at that time by Mr. Riechmann or by Judge Gold.

The State acknowledged in 1996 that Smykowski was a "crucial" witness (PC-R 5490-91). In its letter to the federal parole commission on Smykowski’s behalf, Mr. DiGregory emphasized that he had been essential in getting the conviction of Mr. Riechmann in a "circumstantial" case. I n correspondence to the German Foreign Ministry, the U.S. Attorney on behalf of the state emphasized the weakness of the State’s case without evidence of Mr. Riechmann’s motivation, which Smykowski later provided:

According to Detective Matthews’ testimony in 2002, he was continuing to conduct investigation in Mr. Riechmann’s case between March and July 1988. It was pursuant to his investigation that Smykowski was checked out of jail to be brought either to the police station or the State Attorney’s Office for furthering questioning. Matthews indicated that this happened a couple of times after Smykowski was returned to Miami pending Mr. Riechmann’s trial. However, the only issue Smykowski testified regarding was Mr. Riechmann’s purported statements. He not housed with Mr. Riechmann after January of 1988. It is unclear what type of "investigation" the State was conducting that involved anything other than spoken conversation. Smykowski did not know where the crime scene was. He could not identify anyone on the street. Nonetheless, Matthews testified that he and Detective Hanlon took Smykowski out for "investigation."

On one occasion when they were on the way back to the Sheriff’s Stockade, Smykowski asked them to stop so he could see his daughter. Matthews paid for some Kentucky Fried Chicken so that everyone could have something to eat during the visit. Smykowski was in not cuffed, and the officers were not in uniform. While they were at the house, Smykowski spoke to his mother-in-law in Polish. None of the detectives understood the language or knew what information he was communicating to the woman. Matthews could not recall whether he told the prosecutors he had taken the jailhouse informant to visit his daughter.

Detective Hanlon, on the other hand, testified that they did tell the prosecutors they took Smykowski to visit his daughter. Hanlon testified that they went to the Stockade specifically to take Smykowski to visit his daughter because Smykowski asked them to take him to visit her. He testified that he considered that a benefit to Smykowski and that Smykowski was grateful and said "thank you." Documents from the State Attorney’s Office and the Miami Beach Police Department corroborate Hanlon significant role in the case. A report, authored by Detective Hanlon, was admitted into evidence that shows that Ms. Sreenan was assigned certain investigative tasks from a to-do list and that she was privy to meetings with law enforcement from very early in the case. See Defense Exhibit, Report of Detective Hanlon.

Matthews, Hanlon, and Sreenan (by virtue of the letter she received) knew of Smykowski’s concern regarding his eight-year-old daughter’s well-being while he and his wife served substantial federal sentences. In that context, the state-arranged trip of a federal prisoner to see his daughter takes significance. It illuminates Mr. DiGregory’s note written about Smykowski’s anger at being transferred to Eglin Air Force Base in January of 1988.

John Skladnik testified at the July, 2002, hearing that he had seen two men accompany Smykowski to see his daughter. He saw the two men walking with Smykowski up the sidewalk outside the house where Debbie Smykowski was staying. He said Smykowski did not have handcuffs on and that the men with him were friendly and not in uniform. See, Testimony of John Skladnick July 12, 2002.

Deborah Schaefer, Smykowski’s now-adult daughter confirmed the visit and corroborated Mr. Skladnik’s testimony with regard to the absence of handcuffs and uniforms. She did not recall whether Smykowski was allowed to speak with his wife who was incarcerated in a federal prison in Kentucky while he was there. Her father spoke Polish with her grandmother while he was there, but she did not remember what information they were communicating with one another. See, Testimony of Deborah Schaefer July 12, 2002.

Even though Mr. Riechmann was denied his request to present the testimony of Walter Smykowski from Dubai in the United Arab Emirates (UAE) at the evidentiary hearing and was unable to obtain his presence to testify, undersigned counsel, Terri Backhus, testified regarding her interview of Smykowski in March of 2002, in Dubai. Ms. Backhus showed Smykowski a copy of the affidavit purportedly signed by him and that was attached to the Amended Motion to Vacate. See, Amended Rule 3.850 Motion at page 44, Appendix 3. Smykowski confirmed that the affidavit had been executed by him and that it was true and correct. Smykowski admitted that he lied on the stand in 1998. He now represented that he was taken out of custody on a number of occasions for social visits, dinner and drinks. He said that he was told by the State the words to use in his testimony. He said that he was promised money and help on his federal case. He also said that Mr. DiGregory had given permission for him to be taken out of custody. Smykowski is currently in fear of the United States Government and the outstanding warrant for his arrest for a parole violation.

In addition, the State disclosed on August 21, 2001, that Halina Smykowska thought her husband may have lied. See, Appendix 5, Amended Rule 3.850 Motion at page 50. Obviously, the entire family believed that Smykowski was entitled to reward money, otherwise there would have been no reason for Deborah Schaefer to contact Assistant State Attorney Vogel in order to obtain information about the reward. There also would have been no reason to inquire about it or to make a public records request to the State Attorney’s Office in the hope of finding out the necessary procedure to get the reward from the State, unless the family had believed that Smykowski had an expectation that a reward would be forthcoming.

The conclusion is inescapable. Cumulative consideration of the numerous and substantial failures to disclose favorable evidence to Mr. Riechmann’s trial counsel undermines confidence in the reliability of the outcome. Certainly, Smykowski’s false testimony at trial cut off any ability to suggest that while socializing with Smykowski coaching was occurring. The Florida Supreme Court has recognized undisclosed coaching constitutes valuable impeachment evidence that may undermine confidence in the outcome. Rogers v. State, 782 So.2d at 385.

Even if the Court believes the prosecutors in this case did not know what was happening, the law deems them to have "constructive" knowledge of what law enforcement is doing. Gorham v. State, 597 So. 2d at 784. In Gorham, the prosecutors claimed that police did not tell them about a witness’ confidential informant status in other cases. The Florida Supreme Court held that the state attorney is charged with constructive knowledge and possession of evidence withheld by other state agents, such as law enforcement officers. Just as in this case, the Gorham prosecutor testified that had he known of this information he would have disclosed it to the defense. The Florida Supreme Court granted a new trial stating:

The standard for determining "reasonable probability" is a probability sufficient to undermine confidence in the outcome. Given this trial’s circumstantial nature, Johnson’s role as as the State’s key witness, and the defense’s inability to impeach Johnson based upon the undisclosed evidence, we find that such a reasonable probability exists. Although the factual scenario of Gorham’s case is somewhat different, the same principle regarding the truthfulness of a witness’ testimony which concerned the United States Supreme Court in Napue v. Illinois, 360 U.S. 264 (1959) is presented here. As the Court state, "the jury’s estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant’s life or liberty may depend." Id at 269.

Gorham v. State, 597 So. 2d at 785 (emphasis added). Consequently, "information within the possession of the police is considered to be in possession of the prosecution." State v. Alfonso, 478 So. 2d 1119, 1121 (Fla. 4^th DCA 1985); see also, Tarrant v. State, 668 So.2d 223, 225 (Fla. 4^th DCA 1996)(mere fact prosecutor had no actual knowledge of existence of tape does not relieve the state of its obligation to disclose); Moore v. State, 623 so. 2d 608, 609 (Fla. 4^th DCA 1993)(jury cannot adequately assess credibility of witness when misled as to the degree of favorableness of codefendant’s plea agreements).

In State v. Huggins, 788 So.2d 238, 244 (Fla. 2001), the Florida Supreme Court analyzed a Brady claim and stated:

The State presented a purely circumstantial case against Huggins. As Angel was its key prosecutorial witness who established crucial details in the State’s theory of the case, her credibility was critical.

Likewise, Smykowski was crucial to the State in obtaining a conviction against Mr. Riechmann. The prosecutor has even recognized that Smykowski was critical in obtaining a conviction. There is no doubt that the nondisclosures here, "shake[] the confidence in the verdict." State v. Huggins, 788 So. 2d at 243-4.

Further in Kyles v. Whitley, the United States Supreme Court recognized that evidence that impeached the police investigation could establish a Brady violation:

Damage to the prosecution’s case would not have been confined to evidence of the eyewitnesses, for Beanie’s various statements would have raised opportunities to attack not only the probative value of crucial physical evidence and the circumstances in which it was found, but the thoroughness and even the good faith of the investigation, as well. . . . [the evidence’s] disclosure would have revealed a remarkably uncritical attitude on the part of the police.

* * *

Even if Kyles’s lawyer had followed the more conservative course of leaving Beanie off the stand, though, the defense could have examined the police to good effect on their knowledge of Beanie’s statements and so have attacked the reliability of the investigation in failing even to consider Beanie’s possible guilt and in tolerating (if not countenancing) serious possibilities that incriminating evidence had been planted.

514 U.S. 419, 445-6. (citations omitted).

Here, the undisclosed evidence would have not only been of value just on its face, but the synergistic effect of the nondisclosures considered together would have exposed law enforcement’s investigation techniques to substantial attack and the results of that investigation as unreliable.

Regardless of whether this Court believes Smykowski’s trial testimony, the jury was entitled to make that decision after hearing all of the evidence. Light v. State, 796 So. 2d 610 (Fla. 2^nd DCA 2001)(judge is not examining whether he believes the evidence presented as opposed to contradictory evidence, but whether nature of evidence is such that a reasonable jury may have believed it); Cardona v. State, 27 Fla. L. Weekly S673 (Fla. July 11, 2002).

In United States v. Agurs, 427 U.S. 97, 103 (1976), the Supreme Court explained that where "undisclosed evidence demonstrates that the prosecution's case includes perjured testimony and that the prosecution knew, or should have known, of the perjury." In this type of situation, a conviction must be set aside "if there is any reasonable likelihood that the false testimony could have affected the judgment of the jury." Id. Unlike a Brady-type situation where no intent to suppress is required to be demonstrated, a "strict standard of materiality" applies in cases involving perjured testimony because "they involve a corruption of the truth-seeking process." Id. at 104. Thus, although both Brady and Giglio require a showing of "materiality," the legal standard for demonstrating entitlement to relief is significantly different. The standard for establishing "materiality" under Giglio has "the lowest threshold" and is "the least onerous." United States v. Anderson, 574 So. 2d 1347, 1355 (5th Cir. 1978). See Craig v. State, 685 So. 2d 1224, 1232-34 (Fla. 1996) (Wells, J. concurring in part and dissenting in part) (discussing

differing legal standards attendant to Brady and Giglio claims).

Here, the prosecution allowed Smykowski to give false testimony on the stand. Smykowski testified that he received no benefit for his testimony, except his expectation of a letter. Smykowski testified that he had no contact with either the prosecution or law enforcement since he had spoken with them at the federal facility at Eglin Air Force Base in March, 1988 until two days before he testified at trial (R. 4142-43 ). Smykowski testified at trial on July 29, 1988. Ms. Sreenan testified that the visit to the daughter had to have occurred after her interview with Mr. Smykowski at Eglin (May 23, 2002 transcript at 44). Detective Hanlon testified that the visit occurred in May, 1988. Detective Matthews testified that he had taken Smykowski out for further "investigation" possibly at the time he had been brought down for defense depositions. Smykowski’s deposition was taken on May 24, 1988. A new trial is warranted.

III. NEWLY DISCOVERED EVIDENCE OF INNOCENCE ESTABLISHES THAT DIETER RIECHMANN IS PROBABLY INNOCENT, AND AS A RESULT, A NEW TRIAL IS WARRANTED.

A. Introduction.

The Florida Supreme Court recognized in Jones v. State, 591 So.2d 911 (Fla. 1991), that where neither the prosecutor nor the defense attorney violated there constitutional obligations in relationship to evidence the existence of which was unknown at trial, a new trial is warrant if the previously unknown evidence would probably have produced an acquittal had the evidence been known by the jury. Where such evidence of innocence would probably have produced a different

result, a new trial is required. Impeachment evidence may qualify as under Jones v. State as

evidence of innocence that may establish a basis for Rule 3.850 relief. As stated in State v. Robinson, 711 So.2d 619, 623 (Fla. 2d DCA 1998):

Historically, newly discovered evidence in the form of impeachment evidence was considered insufficient as a matter of law to warrant a new trial. [Citations omitted] Recently, however, this rule of impeachment evidence has been expanded. Florida courts now are willing to consider newly discovered ‘impeachment’ evidence as sufficient to grant a new trial in certain limited

circumstances. In Jones, the supreme court stated: ‘[A]n evaluation of the weight to be accorded the [newly discovered] evidence includes whether it goes to the merits of the case or whether it constitutes impeachment evidence.’ [Citations omitted].

The Florida Supreme Court reviewed the decision in Robinson and affirmed the analysis Robinson v. State, 770 So.2d 1176, 1170-71 (Fla. 2000), saying, "We agree with the district court that impeachment evidence could be part of this cumulative analysis" under Jones. See State v. Mills, 788 So.2d 249 (Fla. 2001). Evidence of impeachment which qualifies under Jones v. State as a basis for granting a new trial must be considered cumulatively in deciding whether in fact a new trial is warranted. State v. Gunsby, 670 So.2d 920 (Fla. 1996).

In State v. Gunsby, the Florida Supreme Court ordered a new trial in Rule 3.850 proceedings because of the cumulative effects of Brady violations, ineffective assistance of counsel, and/or Jones evidence of innocence using the following analysis:

Gunsby raises a number of issues in which he contends that he is entitle to a new trial, two of which we find to be dispositive. First, he argues that the State’s erroneous withholding of exculpatory evidence entitles him to a new trial. Second, he asserts that he is entitled to a new trial because new evidence reflects that the State’s key witnesses at trial gave false testimony in order to implicate him in a murder he did not commit and to hide the true identity of the murderer.

* * *

Nevertheless, when we consider the cumulative effect of the testimony presented at the 3.850 hearing and the admitted Brady violations on the part of the State, we are compelled to find, under the unique circumstances of this case, that confidence in the outcome of Gunsby’s original trial has been undermined and that a reasonable probability exists of a different outcome. Cf. Cherry v. State, 659 So.2d 1069 (Fla. 1995)(cumulative effect of numerous errors in counsel’s performance may constitute prejudice); Harvey v. Dugger, 656 So.2d 1253 (Fla. 1995)(same). Consequently, we find that we must reverse the trial judge’s order denying Gunsby’s motion to vacate his conviction.

Gunsby, 670 So.2d at 923-24 (emphasis added). See Young v. State, 739 So.2d 553 (Fla. 1999). The Florida Supreme Court held in Lightbourne v. State, 742 So.2d at 247 that a cumulative analysis of Mr. Lightbourne’s Brady claim and his newly discovered evidence was required.

B. The Newly Discovered Evidence.

The Florida Supreme Court has recognized that newly-discovered evidence of innocence warrants a new trial where it establishes that had the jury known of the new evidence it probably would have acquitted. Jones v. State, 591 So. 2d 911 (Fla. 1991). Here, the new evidence of innocence in conjunction with the evidence presented at the 1996 evidentiary hearing establishes that the jury probably would have acquitted had all of this evidence been known. When viewed in conjunction with other evidence never presented because of the State's discovery violations and/or trial counsel's deficient performance, there can be no question that Mr. Riechmann’s conviction cannot stand.

Doreen Bezner-Glenn was not located until early 2002. The information she possessed underscored the good-faith effort of counsel to corroborate and present the newly-discovered evidence claim. Ms. Bezner-Glenn was on the street the night that the crime occurred in 1987. She remembered the date because it was shortly after she arrived in South Florida. She was the girlfriend/prostitute of Mark Gray, a drug dealer and pimp operating along Biscayne Boulevard. She testified that she had seen Mr. Riechmann and Ms. Kischnick earlier that day at a Denny’s along Biscayne Boulevard. She remembered Ms. Kischnick because she thought she had a "nice ass" and the couple acted like they had money. They wore lots of jewelry and dressed nicely. Ms. Bezner-Glenn saw the woman speaking with Mark Gray, but she was not privy to the conversation because she was not allowed to be involved with Mark’s business associates. She assumed they were discussing a drug transaction.

On that evening, Ms. Bezner-Glenn was doing crack on the street near 62^nd and Biscayne near a tree. She saw a car occupied by Mr. Riechmann and Ms. Kischnick pull up the street. Mark Gray held up his hands indicating for the car to stop. As soon as the car stopped, two "gits" (a term for two young black males) ran up to the car on both sides and shot into it. The driver immediately sped up and turned on to Biscayne Boulevard. Ms. Bezner-Glenn said she did not know who shot into the car, but there was no time between the shots and the time the car accelerated for Mr. Riechmann to get out of the car, shoot and get back into the car. She identified pictures of Mr. Riechmann and Ms. Kischnick as they appeared on the night of the crime. See Def. Exh.photos of Ms. Kischnick and Mr. Riechmann..

Ms. Bezner-Glenn testified that after witnessing someone other than Mr. Riechmann shoot Ms. Kischnick, she was taken to a motel room by her pimp and drug dealer, Mark Gray. She was told not to leave the motel room and he had tricks brought to her in the motel. She testified that no one contacted her, and that she was not aware of any reward offered in the case. Ms. Bezner-Glenn testified that she was afraid of Mark Gray and repercussions from him if she told her story. He would not allow her to speak with his business associates, which were other people involved in the robbery and murder. She also testified that she left the area after the crime and still does not go back to that area. Thus, she was not available to be found in the area that Mr. Lohman was investigating in 1996. See, Testimony of Doreen Bezner-Glenn, July 12, 2002.

Ms. Bezner-Glenn admitted to being a crack addict, but she said that did not affect her ability to observe because it makes her "more aware." She acknowledged that she has 10 or 11 prior convictions but most are misdemeanor convictions for prostitution and trespassing because she is homeless. Even though Ms. Bezner-Glenn could not give a precise date or time that the crime occurred, she said it was something that you don’t forget. See, Testimony of Doreen Bezner-Glenn, July 12, 2002.

Donald Williams was in a similar situation. Mr. Williams testified that he had lived in the Biscayne and 63^rd Street area for many years. He frequented various bars in the neighborhood. He knew Mark Dugan, Twin and other associates of Hilton Williams, though he and Hilton are not related. One day he went to the Paradise Bar where he heard other customers at the bar joking that some guys had shot someone without getting anything for it. The people in the bar did not say who had committed the murder. But, everybody was talking about it. He heard lots of talk about a failed robbery. He testified that he had not been contacted by anyone prior to being contacted in early 2002. He indicated that he knew nothing about a reward being offered for information about the crime. He did not come forward because he did not know who did the shooting, but he did know that the crime had occurred. He was certain that a crime had occurred that night. When he was contacted, he was familiar with Doreen Bezner-Glenn and knew that she had been the girlfriend of Mark Dugen. He provided information regarding her to assist in locating her. See, Testimony of Donald Williams, July 12, 2002.

Undersigned counsel, Terri Backhus, testified regarding her interview of Smykowski in March of 2002. Ms. Backhus showed Smykowski a copy of the affidavit purportedly signed by him and that was attached to the Amended Motion to Vacate. See, Amended Rule 3.850 Motion at page 44, Appendix 3. Smykowski confirmed that the affidavit had been executed by him and that it was true and correct. Smykowski admitted that he lied on the stand in 1998. He represented that he was taken out of custody on a number of occasions for social visits, dinner and drinks. He said that he was told by the State the words to use in his testimony. He said that he was promised money and help on his federal case. He said that Mr. DiGregory had given permission for him to be taken out of custody. Smykowski is currently in fear of the United States Government and the outstanding warrant for his arrest for a parole violation.

4. Previously presented newly discovered evidence of innocence.

In 1996, Mr. Riechmann presented the testimony of Hilton Williams and Early Stitt. Both men described a robbery that had gone bad at 63^rd and Biscayne Boulevard. They testified under oath that someone named "Mark" had shot Kersten Kischnick. Judge Gold found their testimony to be "less than credible" and "rife with inconsistencies" because of drug abuse that had affected their memories and their extensive prior convictions. Appendix 1 at page 40. Judge Gold concluded that the testimony of these two witnesses without more failed to convince him that had the jury heard the testimony that it would probably have acquitted.

C. Counsel’s diligence.

Due diligence is an element of claims of newly discovered evidence of innocence under Jones v. State. Due diligence is not explicitly defined in Florida 3.850 case law. However, in State v. Gunsby, the Florida Supreme Court found that a trial attorney who did not exercise due diligence at trial rendered deficient performance under the standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984). Thus, due diligence is established where an attorney’s performance was reasonable under the Strickland standard. Under Gunsby, due diligence cannot be a more stringent standard than that set forth in Strickland v. Washington, because the Florida Supreme Court found that a lawyer who was not diligent had rendered deficient performance that prejudiced the defendant. The Florida Supreme Court did not leave open the possibility that counsel could have failed to be diligent, but still have rendered effective representation.

The meaning of the phrase "due diligence" can also be gleaned from the Florida Supreme Court’s analysis in Lightbourne v. State,549 So.2d 1364 (Fla. 1989). There, the Court was faced with a procedural history substantially similar to the proceedings in Mr. Riechmann’s case. Mr. Lightbourne’s first Rule 3.850 motion was summarily denied without an evidentiary hearing. In the late 1980s, Mr. Lightbourne filed a second Rule 3.850 motion, which "focused primarily on attacking the reliability" of witnesses who testified against Mr. Lightbourne. An evidentiary hearing was ordered by the Florida Supreme Court. Lightbourne v. Dugger, 549 So.2d 1364 (Fla. 1989). After the evidentiary hearing was held, relief was denied by the circuit court and that was affirmed on appeal. Lightbourne v. State, 644 So.2d 54 (Fla. 1994). Later in 1994, Mr. Lightbourne filed a third motion for post-conviction relief. The circuit court held an evidentiary hearing on this motion and denied relief. However, the circuit court refused to hear the testimony of a witness that it found procedurally barred because of a want of due diligence. The Florida Supreme Court reversed and ordered a new evidentiary hearing "as to Emanuel’s testimony and for the trial court to consider the cumulative effect of the post-trial evidence in evaluating the reliability and veracity Chavers’ and Carson’s trial testimony in determining whether a new penalty phase hearing is required, either under Lightbourne’s Brady or newly discovered evidence claims." 742 So.2d at 249. In Lightbourne, the Florida Supreme Court found that the testimony of prior collateral counsel "that they and their staff had been diligently searching for Emanuel since 1989, with no success" required merits consideration of Emanuel’s testimony:

In this case there is considerable evidence that CCR had been actively looking for Emanuel. According to the representations made to the court in 1990 hearings, CCR was exercising due diligence since 1989 to find Lightbourne’s cellmates from 1981. CCR had been successful in locating Carnegia by 1990, and both Carson and Emanuel were found by 1994.

Lightbourne v. State, 742 So.2d at 246.

James Lohman, Mr. Riechmann’s collateral counsel in 1996, searched for witnesses to the attempted robbery and murder of Kersten Kirschnick. Mr. Lohman presented the testimony of Hilton Williams and Early Stitt at the 1996 evidentiary hearing. Mr. Lohman testified at the Juy, 2002, hearing that he had heard the name "Mark" mentioned but had never spoken to or known where "Mark" was. In 1996, Judge Gold found that witnesses Williams and Stitt could not have been found by either collateral or trial counsel previously. See, Appendix 1 at page 39. The reluctance of witnesses to come forward in this case was noted in Judge Gold’s order. He found that trial and collateral counsel had exercised due diligence and that these witnesses could not have been previously known to the defense. See, Appendix 1 at page 39. The same reluctance plagued undersigned counsel years later.

Mr. Riechmann presented to this court at the July, 2002 evidentiary hearing testimony regarding counsel’s ongoing diligence during and after the 1996 evidentiary hearing. Undersigned counsel was retained to represent Mr. Riechmann in his appeal in the Florida Supreme Court. Counsel testified that as soon as she received new information from a German radio broadcast that someone else had confessed to the murder of Kersten Kischnick, and she received the substance of the confession, she investigated and filed a second motion to vacate on behalf of Mr. Riechmann. Undersigned counsel testified that she hired an investigator to try to locate witnesses to corroborate the German radio story. Upon learning that new information had been discovered by a German investigative journalist, undersigned counsel testified that she filed

a Rule 3.850 with newly-discovered evidence claims within the one-year deadline under Mills v. State, 684 So. 2d 801 (Fla. 1996). While the case was pending in the Supreme Court, the State forwarded a letter to counsel that had been received from Deborah Schaefer, Smykowski’s daughter, containing favorable information. Counsel immediately requested the complete letter but was never provided the original letter. Eventually, the Florida Supreme Court affirmed the grant of a new sentencing hearing and ordered that the German witness statements previously withheld be provided to counsel for use in Mr. Riechmann’s sentencing.

Despite repeated requests for those records, Mr. Riechmann did not receive the German witness statements. In fact, Mr. Riechmann’s trial counsel was found to have rendered deficient performance for failing to re-request those German witness statements after they had been given to Judge Solomon for in camera review. Riechmann v. State, 777 So. 2d 342 (Fla. 2000). In response to Mr. Riechmann’s Motion to Compel German Witness Statements, the prosecution informed this Court that the statements are "lost."

Under Jones, Mills and its progeny, Mr. Riechmann has one year from the time his counsel discovers new information to plead that information and bring it to the Court’s attention. That is what was done in this case. Both Mr. Lohman and current collateral counsel testified that they conducted a diligent search and had no success in finding Walter Smykowski, Mark Dugen or Mark Gray. The fact that someone else did, such as the German journalists who through a journalist’s credentials may gain access to information or witnesses not available to a criminal defense attorney, does not lessen the effort or the diligence of counsel’s search. The legal obligation is to bring new information to the court’s attention when it is discovered by counsel. Just as Judge Gold found in 1996, counsel could not have found Mr. Smykowski, Ms. Schaefer, Mr. Skladnick, Mr. Donald Williams or Ms. Bezner before now. Undersigned counsel has been diligent in her efforts since her entry of appearance in1998, as was predecessor counsel.

D. CONCLUSION.

Doreen Bezner-Glenn has told us what really happened that night. She was there because she was a prostitute and a drug addict. When she testified, she was straight-forward and honest about herself and the life she has lead. Her testimony illuminated the case. Through her testimony, suddenly the unexplained made sense. Had the jury heard her testify, undoubtedly it would have acquitted Mr. Riechmann, particular given the evidence that impeaches the forensic evidence and the evidence impeaching Smykowski.

The State’s disclosures in 2000 from Ms. Schaefer and Halina Smykowska and the taped Brady statement from Halina Smykowska submitted by the State into the Court file confirm that the State knew Smykowski was not going to testify for nothing. See, Amended Motion to Vacate Judgement of Conviction dated September 14, 2001 at pages 48-50 . Mr. DiGregory’s letter to the federal parole board underscores his importance at Mr. Riechmann’s trial. At the time Smykowski gave his affidavit to German journalist, Peter F. Mueller, undersigned counsel were not involved in any way. The postconviction case had been concluded for four years when Smykowski made his affidavit and appeared on a German television documentary. Mr. Riechmann was in no position to make promises to him, nor did counsel know where he lived.

This new evidence corroborates the evidence previously presented regarding what happened that night on Biscayne Boulevard. Even though Hilton Williams now says he was only involved in another armed robbery on the same street that same night, it is clear something did happen. The Brady information regarding "Kool" indicated the police thought there was connection to this case. These witnesses could have provided a valuable defense to present to the jury at trial. If Mr. Carhart had this information, he would have conducted his own investigation and possibly used this information. At the very least, he would have investigated it. Testimony of Mr. Carhart July 11, 2002.

This new evidence seriously undermines confidence in the State’s story in which the jury was already "ambivalent" (three jurors voted for life despite having no evidence presented in mitigation). Arguably, an ambivalent jury even when presented with no mitigation occurs because there is a lingering doubt about the guilt of the defendant. This is particularly true in this case in which two aggravating factors (pecuniary gain and cold, calculated and premeditate) were improperly doubled.

The issue for this Court is not whether this Court believes the witness, but whether the jury probably would have acquitted when considering the cumulative effect of the testimony from the witnesses presented in these collateral proceedings. Light v. State, 796 So. 2d 610 , 617(Fla. 2^nd DCA 2001)("the judge is not examining simple whether he or she believes the evidence presented as opposed to contradictory evidence presented at trial, but whether the nature of the evidence is such a reasonable jury may have believed it").

Mr. Riechmann is entitled to a new guilt phase.

In Lightbourne, the Florida Supreme Court explained the analysis to be used when evaluating a successive motion for post-conviction relief:

In this case the trial court concluded that Carson's recanted testimony would not probably produce a different result on retrial. In making this determination, the trial court did not consider Emanuel's testimony, which it had concluded was procedurally barred, and did not consider Carnegia's testimony from a prior proceeding. The trial court cannot consider each piece of evidence in a vacuum, but must look at the total picture of all the evidence when making its decision.

When rendering the order on review, the trial court did not have the benefit of our recent decision in Jones v. State, 709 So. 2d 512, 521-22 (Fla.) cert. denied, 523 U.S. 1040 (1998), where we explained that when a prior evidentiary hearing has been conducted, "the trial court is required to 'consider all newly discovered evidence which would be admissible' at trial and then evaluate the 'weight of both the newly discovered evidence and the evidence which was introduced at the trial'" in determining whether the evidence would probably produce a different result on retrial. This cumulative analysis must be conducted so that the trial court has a "total picture" of the case. Such an analysis is similar to the cumulative analysis that must be conducted when considering the materiality prong of a Brady claim. See Kyles v. Whitley, 514 U.S. 419, 436 (1995).

Lightbourne, 742 So. 2d at 247-248(empahsis added)(citations omitted).

The "total picture" in this case is that of a prosecutorial shell game. Judge Gold described the jury’s verdict as "ambivalent." Despite trial counsel’s failure to present a single witness at guilt phase, three jurors still voted for life. In Mr. Mueller’s documentary, a juror appears on the film and states that the jury would not have voted to convict if they had known any of the new information found since the trial. Even Ms. Sreenan admitted on a national television program that she had been surprised by the guilty verdict. More telling are the pre-trial letters and telexes to the German government stressing that the State did not have anything more than circumstantial evidence against Mr. Riechmann.

From the inception of the case, the State hid, moved and misdirected defense counsel from exculpatory evidence. Still in 2002, Mr. Riechmann was forced to file numerous motions to compel just to get information from the State he became aware of through other sources. Undersigned counsel has fought kicking and scratching for every fact that is available, even though the State has a continuing obligation to turn over this information.

The question that is essential to ask is if Mr. Riechmann were tried today before a new jury with the information now provided, would he be convicted of first-degree murder. Would Mr. Riechmann have been convicted if he had presented evidence that the blood evidence defied the laws of physics? That the gunshot residue was never tested in the interior of the car? That the police reports regarding the opening of the window had a bearing on gunshot residue and the blood evidence? That the jailhouse informant had lied and been given special favors in exchange for his testimony? That witnesses claimed to have seen someone else commit the shooting? Or that 37 witness statements may have shown Mr. Riechmann had no motive to commit the murder? More importantly, would we still have confidence that the outcome of the trial?

In Mr. Riechmann’s post-conviction appeal, the Florida Supreme Court found "numerous errors" that affected Mr. Riechmann’s trial to such a degree that it warranted a new sentencing proceeding. These errors were:

1. There was judicial error in the trial judge’s failure to prepare his own sentencing order or independently weigh the aggravating and mitigating circumstances.

2. The State conceded and this Court found that Brady violations occurred with regard to the failure to disclose 37 German witness statements, withholding police reports and results.

3. Defense counsel was ineffective for failing to request the 37 German witness statements.

4. The State improperly engaged in ex parte communications with the trial judge.

5. Defense counsel was ineffective for failing to investigate in Germany or conduct any penalty phase investigation whatsoever.

6. Mr. Riechmann was prejudiced to such a degree by these errors that a new sentencing proceeding was ordered by Judge Gold and his decision was affirmed by this Court.

Riechmann v. State, 777 So. 2d 342 (Fla. 2000).

Under Lightbourne, this Court must review all of the evidence to see what impact the disclosure of new evidence and Brady information has on the errors that the Florida Supreme Court and Judge Gold have already recognized. This analysis must include the errors that occurred on direct appeal in 1991, the evidentiary hearing in 1996 and the Florida Supreme Court’s opinion in 2000.

This Court must consider the following errors from 1991:

1. It was harmless error that the jury considered prior convictions of involuntary manslaughter and negligent bodily harm in connection with a 1972 automobile accident in Germany against Mr. Riechmann even though the crimes were considered a misdemeanor in Germany and Mr. Riechmann was given eight months probation. The court conceded that the three other priors (a 1966 grand theft auto; a 1973 forgery; a solicitation of perjury in 1974) were remote in time and may have been prejudicial, but justice was best served by the jury hearing about these crimes.

2. The Florida Supreme Court found that there had been no discovery violations or prosecutorial misconduct;

3. The Florida Supreme Court’s conclusion that probable cause existed for the searches in Germany even though some of the searches in Germany were found to be illegal by German court rulings and had rendered their opinion eight months prior to trial on November 4, 1987.

3. The Florida Supreme Court erroneously found that trial counsel had not properly objected to the State’s comment that 23 grand jurors had already indicted Mr. Riechmann when he clearly had made an objection that was reflected in the record on appeal.

Riechmann v. State, 581 So. 2d 133 (Fla. 1991).

Under the most recent line of cases, it is clear that guilt phase is so fraught with error that a new trial is warranted. Cardona v. State, 27 Fla. L. Weekly S673 (Fla. July 11, 2002); Hoffman v. State, 800 So. 2d 238 (Fla. 2001); Rogers v. State, 782 So. 2d 373 (Fla. 2001); Young v. State, 739 So. 2d 553 (Fla. 1999). The new evidence presented here renders the guilt phase fundamentally unfair. Cardona v. State. Mr. Riechmann should be granted a new trial.

The foregoing authorities, the trial record, evidentiary hearing testimony in 1996 and 2002, in conjunction with the allegations on which Mr. Riechmann did not get a hearing show that a new trial is warranted. Cf. Lemon v. State, 498 So.2d 923 (Fla. 1986) . Accordingly, Mr. Riechmann requests that his conviction be vacated and/or any other relief which this Court may deem just and proper.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Closing Argument in Support of Motion to Vacate has been furnished by Federal Express to Honorable Jerald Bagley, 1351 N.W. 12^th Street, Miami, FL 33135; Ms. Sandra Jaggard, Assistant Attorney General, 444 Brickell Ave., Ste.950, Miami, FL 33131-2407; Mr. Reed Rubin, Assistant State Attorney, 1350 N.W. 12^th Street, Miami, FL 33136-2111 on August 12, 2002.

____________________

TERRI L. BACKHUS

Fla. Bar No. 0946427