Appellant/Cross-Appellee,

v.

Appellee/Cross-Appellant.

ON APPEAL FROM THE CIRCUIT COURT

OF THE ELEVENTH JUDICIAL CIRCUIT FOR DADE COUNTY,

STATE OF FLORIDA

COUNSEL FOR APPELLEE/

CROSS-APPELLANT

This proceeding involves the appeal of portions of the

circuit court’s denial of Mr. Riechmann’s motion for

postconviction relief and the cross-appeal of the circuit court’s

order granting postconviction relief. The motion was brought

pursuant to Fla. R. Crim. P. 3.850. After holding an evidentiary

hearing, the circuit court denied relief on Mr. Riechmann’s

convictions but set aside the sentence of death based on

ineffective assistance of counsel, the state’s misconduct in

withholding exculpatory evidence under Brady v. Maryland and the

trial court’s failure to prepare its own independent sentencing

order.

The following symbols will be used to designate references

to the record in the instant causes:

"R." – record on direct appeal to this Court;

"PC-R."- record on 3.850 appeal to this Court.

Mr. Riechmann’s sentence of death has been set aside but his

convictions remain to be considered by this Court. The

resolution of the issues involved in this action will determine

whether Mr. Riechmann will be granted a new trial. This Court

has not hesitated to allow oral argument in other capital cases

in a similar procedural posture. A full opportunity to air the

issues through oral argument would be appropriate in this case,

i

given the seriousness of the claims involved and the stakes at

issue. Mr. Riechmann, through counsel, accordingly urges the

Court to permit oral argument in this case.

ii

PRELIMINARY STATEMENT . . . . . . . . . . . . . . . . . . . . . i

REQUEST FOR ORAL ARGUMENT . . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . vi

STATEMENT OF FACTS AND THE CASE . . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . 27

ARGUMENT I

THE LOWER COURT ERRED IN FAILING TO GRANT MR. RIECHMANN A

NEW TRIAL AFTER SETTING ASIDE HIS SENTENCE OF DEATH WHEN IT

FAILED TO USE THE SAME ANALYSIS FOR GUILT PHASE EVIDENCE

THAT IT DID FOR PENALTY PHASE EVIDENCE.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

A. Introduction . . . . . . . . . . . . . . . . . . . . 30

B. Judge Gold’s order . . . . . . . . . . . . . . . . . 31

C. Ineffective assistance of counsel at guilt phase . . 31

1. Trial counsel’s failure to adequately challenge

blood spatter and gun residue evidence. . . . . . . 32

2. Counsel’s failure to investigate facts of Mr.

Riechmann’s innocence. . . . . . . . . . . . . . . 46

3. Defense counsel’s failure to investigate times

and distances . . . . . . . . . . . . . . . . . . . 49

4. Counsel’s failure to present evidence of Mr.

Riechmann’s relationship with Ms. Kischnick . . . . 51

5. Counsel failed to investigate information that

would discredit the state’s jailhouse informant. . 57

6. Counsel’s failure to introduce the secretly

recorded four hour tape of the interview with MBPD

Sgt. Matthews . . . . . . . . . . . . . . . . . . . 61

iii

7. The "Unmitigated Disaster"–trial counsel’s

ineffectiveness for forcing Mr. Riechmann to

testify . . . . . . . . . . . . . . . . . . . . . . 65

8. Trial counsel’s failure to request a second

chair . . . . . . . . . . . . . . . . . . . . . . . 70

9. Counsel’s failure to explore cultural

differences. . . . . . . . . . . . . . . . . . . . 72

10. Counsel’s failure to rebut the state’s theory

of Ms. Kischnick’s physical condition. . . . . . . 72

ARGUMENT II

NEWLY DISCOVERED EVIDENCE ENTITLES MR. RIECHMANN TO A NEW

TRIAL. . . . . . . . . . . . . . . . . . . . . . . . . 73

A. Newly discovered eyewitnesses to the murder. . . 73

B.The testimony of "jailhouse informant" Smykowski was

false. . . . . . . . . . . . . . . . . . . . . . . 79

C. Newly discovered evidence of subsequent similar murders.

. . . . . . . . . . . . . . . . . . . . . . . . . 81

ARGUMENT III

THE STATE’S DELIBERATE WITHHOLDING OF MATERIAL EXCULPATORY

EVIDENCE DEPRIVED MR. RIECHMANN OF A FAIR TRIAL. . . . . 82

ARGUMENT IV

THE LOWER COURT CORRECTLY VACATED MR. RIECHMANN’S DEATH

SENTENCE AND WAS CORRECT IN ORDERING A NEW SENTENCING

HEARING BUT SHOULD HAVE GRANTED A NEW TRIAL. . . . . . . 95

A. The state’s sentencing order . . . . . . . . . . 95

B. Ineffective assistance of counsel at penalty

phase . . . . . . . . . . . . . . . . . . . . . . 102

ARGUMENT V

THE SUPPRESSION OF ILLEGALLY OBTAINED EVIDENCE . . . . . 105

ARGUMENT VI

INEFFECTIVE ASSISTANCE OF COUNSEL ON ACQUITTAL OF FEDERAL

GUN CHARGES. . . . . . . . . . . . . . . . . . . . . . . 106

iv

ARGUMENT VII

THE PROSECUTORIAL MISCONDUCT CLAIM . . . . . . . . . . . 110

ARGUMENT VIII

INEFFECTIVE ASSISTANCE OF COUNSEL AT VOIR DIRE . . . . . 112

ARGUMENT IX

TRIAL COUNSEL FAILED TO EFFECTIVELY CROSS EXAMINE KEY STATE

WITNESSES . . . . . . . . . . . . . . . . . . . . . . . 113

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . 116

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . 117

Armstrong v. State, 642 So. 2d 730 (Fla. 1994) . . . . . . . 71

Batson v. Kentucky, 476 U.S. 79 (1986) . . . . . . . . . . . 113

Bouie v. State, 559 So. 2d 1113 (Fla. 1990) . . . . . . . . . 97

Brady v. Maryland, 373 U.S, 83 (1963) . . 20, 26, 30, 39, 81, 82,

84, 92, 94,106

Campbell v. State, 679 So. 2d 720 (Fla. 1996) . . . . . . . . 112

Card v. State, 652 So.2d 344 (Fla. 1995) . . . . . . 27, 97, 101

Davis v. Alaska, 415 U.S. 308 (1974) . . . . . . . . . . . . 115

Donnelly v. DeChristoforo, 416 U.S. 647 (1974) . . . . . . . 112

Farr v. State,656 So. 2d 448 (Fla. 1995) . . . . . . . . . . 103

Garron v. State, 528 So. 2d 353 (Fla. 1988) . . . . . . . . . 112

Giglio v. United States, 405 U.S. 150 (1972) . . . . . . 88, 106

Grossman v. State, 525 So. 2d 833 (Fla. 1988) . . . . . . . . 97

Gunsby v. State, 670 So. 2d 920 (Fla. 1996) . . . . . . . 31,116

Hildwin v. Dugger, 654 So. 2d 107 (Fla. 1995) . . . . . . . . 31

Kyles v. Whitley, 115 S. Ct. 1555 (1995) . . . . . . . . . . 94

Larkins v. State, 655 So. 2d 95 (Fla. 1995) . . . . . . . . . 71

Layman v. State, 652 So. 2d 373 (Fla. 1995) . . . . . . . . . 98

Neil v. State, 457 So. 2d 481 (Fla. 1984) . . . . . . . . . . 113

Patterson v. State, 513 So. 2d 1257 (Fla. 1997) . . . . . 97, 98

Riechmann v. State, 581 So. 2d 133 (Fla. 1991) . 16, 21, 41, 44,

91,110

Rose v. State, 601 So.2d 1181 (Fla.1992) . . . . . . . . . . 101

State ex. rel Davis v. Parks, 194 So. 2d 613 (1939) . . . . . 101

State v. Dixon, 283 So. 2d 1 (Fla. 1973). . . . . . . . . . . 102

State v. Slappy, 522 So. 2d 18 (Fla. 1988) . . . . . . . . . 113

Stewart v. State, 549 So. 2d 171 (Fla. 1989) . . . . . . . . 97

Strickland v. Washington, 466 U.S. 668 (1984) . . . 38, 104, 110

Turner v. State, 530 So. 2d 45 (Fla. 1987) . . . . . . . . . 113

United States v. Agurs, 427 U.S. 97 (1976) . . . . . . . . . 88

United States v. Bagley, 473 U.S. 667 (1985) . . . . . . . . 88

United States v. Cronic 466 U.S. 648 (1984) . . . . . . . . . 115

Van Royal v. State, 497 So. 2d 625 (Fla. 1986 ) . . . . . . . 102

Vasquez v. Hillary, 474 U.S. 254 (1996) . . . . . . . . . . . 112

Section 921.141 Fla. Stat(1985) . . . . . . . . . . . . . . . 102

Fla. Bar Code of Jud. Conduct, Canon 3A(4) . . . . . . . . . 101

Fla. R. Crim. P. 3.180 (a)(4) . . . . . . . . . . . . . . . . 113

Fla. R. Crim. P. 3.850 . . . . . . . . . . . . . . . . . . . 94

At 10:32 p.m., October 25, 1987, Mr. Riechmann "flagged

down" Miami Beach Police Officer Kelley Reid on Indian Creek

approached the officer, saying, "Help me! Oh my God! My Girl! My

Girl!" Within two minutes, fire rescue medics were at the

scene, and attempted unsuccessfully to revive the woman strapped

in the passenger seat with a bullet hole in the right side of her

head. The victim was Kersten Kischnick, Mr. Riechmann’s

companion of thirteen years.

For the next hour, Mr. Riechmann explained to Miami Beach

Police Department ("MBPD") detectives, in broken English, what

had happened. He asked several times to go to the car and see

Kersten, but was kept away. At approximately 11:00 p.m., Mr.

Riechmann’s hands were swabbed for gunshot residue. Mr.

Riechmann’s account of the shooting was related with marginal

assistance from MBPD Officer Jason Psaltides, who had taken two

years of German in high school.

Mr. Riechmann said he and Ms. Kischnick had just come from

having dinner at Jardin Brasilian at Bayside. They got lost on

their way back to Miami Beach, pulled over on a dark street and

asked a stranger for directions. The stranger turned away

momentarily and returned with something in his hand. As Mr.

Riechmann started to accelerate the car, he heard an explosion,

restaurant reflected that Mr. Riechmann and Ms. Kischnick had

twelve mixed drinks between them.

and sped off. He could not say where it had happened or how he

scene, Mr. Riechmann informed the officers that he and Ms.

Kischnick were staying in a Miami Beach hotel. The detectives

asked him whether he had any firearms in his hotel room and he

responded that he did.

At approximately 11:30 p.m., Mr. Riechmann was transported

to the MBPD station and was put in a locked "holding cell"

between one and three hours. Sgt. Joe Matthews eventually

removed him from the cell, said it was all a big mistake, and he

apologized. Later that night, Mr. Riechmann and detectives went

to his hotel room. The police took three guns, shoes, passport,

travel documents and Mr. Riechmann’s blood-stained clothes.

Over the next four days, Mr. Riechmann spent most of his

time telling the same account over and over again to police.

They spent many hours together driving around looking for the

spot where the murder occurred. Mr. Riechmann also attempted on

his own to locate the area. On October 28, a one-hour taped

interview was conducted, which was submitted into evidence at

trial. It consisted of Mr. Riechmann recounting the same

description of the crime he had always given.

On October 29, a four to five hour secretly-taped interview

was conducted in the MBPD Detective Bureau, with hidden recording

equipment. This taped interview was not introduced by the state.

At the conclusion of the four and one half hour interview with

Sgt. Matthews, Mr. Riechmann was arrested by federal ATF agents

on a charge that he had provided an incorrect address when

purchasing guns that were taken from his room several days

earlier. He was incarcerated at the Metropolitan Correctional

Center, a federal detention facility in Miami. Bond for this

relatively minor charge was set at $150,000.00.

Mr. Riechmann remained in federal pretrial custody until

December 29, when his two day federal trial began. Two of the

three counts were dismissed by the Honorable James W. Kehoe

because gun shop witnesses were unable to identify that any crime

had been committed. A federal jury acquitted Mr. Riechmann of

the third charge, seemingly for the same reason.

When Mr. Riechmann walked out of the federal courtroom on

December 30, he was arrested by MBPD detectives for the murder of

Ms. Kischnick. During the previous two months MBPD and Dade

County prosecutors had been actively investigating the background

of Mr. Riechmann and Ms. Kischnick, working closely with police

and prosecutors in their small town of Rheinfelden in

southwestern Germany. Their apartment was searched repeatedly

over a period of more than five months, including searches in

February and April, 1988 by Mr. Riechmann’s trial prosecutors.

Dozens of acquaintances were questioned. Numerous bank accounts

and safe deposit boxes were examined. Life insurance policies

were scrutinized. During November and December, while Mr.

Riechmann awaited federal trial, the state assembled the

ingredients for its prosecution, determining it had enough

probable cause to arrest and charge him for Ms. Kischnick’s

murder the moment he was acquitted in federal court.

On January 21, 1988, twenty-three days after his arrest, Mr.

Riechmann was arraigned for murder. He was represented by the

Public Defender’s Office. Mr. Riechmann retained private

counsel, who was substituted for the Public Defender in late

January. In the five months between counsel’s substitution in

late January and the beginning of trial in July, counsel filed a

total of three (3) pretrial motions, one of which was a motion to

suppress physical evidence, including items taken from Mr.

Riechmann’s first hotel room and a second room he had moved to

after the death of his companion. A hearing on the motion was

held on July 5-12, 1988, followed by the trial which lasted from

July 13 to August 12, 1988.

In its initial brief, the Appellant has recited verbatim the

facts as stated by this Court on direct appeal. This Court

relied exclusively on the sentencing order of the trial court

which has since been determined was written by the state

attorney. As a result, Mr. Riechmann suggests this Court conduct

a de novo review of all of the issues presented in his case. In

his state habeas, Mr. Riechmann argues that he received

ineffective assistance of appellate counsel on direct appeal. As

a result of these errors, this Court did not receive an accurate

factual account of this case. Mr. Riechmann sets out below the

facts of the case as they were established at the evidentiary

hearing and as they should have been raised to this Court on

direct appeal.

In order to accept this story, in order for you

people and your common sense to accept this story as

fact, and in order to choose the mysterious black

gunman as the killer of Kersten Kischnick, you first

have to believe that he got lost...

Next you have to believe that of all the areas in

which to get lost... and ask for directions, he picks a

street on which there happens to be a black man with a

gun (state’s closing argument)(R. 2968-69).

An innocent German tourist was convicted. A foreign national

was carjacked in Miami before the word "carjacking" was

introduced into our daily vocabulary. At the evidentiary hearing

before Judge Gold, University of Miami criminology professor,

Karen McElrath traced the emergence of the official recognition

of crimes against tourists. She testified there was a

"substantial difference in terms of the pattern of events and the

official response to those pattern of events" after 1992 (PCR.

3898-3908).

Dr. McElrath described the exact factual scenario of this

case as having the common characteristics of a typical carjacking

– rental cars, inadequate directions, getting lost, and asking a

stranger for directions (PC-R. 3906-3907). In the early 1990's,

crimes against tourists escalated to such an extent that local

law enforcement in Miami and the Governor himself took action to

curb these crimes such as placing guards on duty at rest areas,

erecting large sun symbols to aid tourists in negotiating the

confusing streets of Miami and removing rental car logos from

cars most commonly driven by tourists.

Contrary to the actions taken in 1991 to 1993, Dr. McElrath

found no articles about governmental efforts to combat crimes

against tourists from 1984 through 1990, even though they

undoubtedly occurred(PC-R. 3898-3899). From the moment that Mr.

Riechmann sought help for his girlfriend, he told the authorities

the same story which is now characterized as a common profile for

a tourist crime.

Mr. Riechmann told the Miami Beach Police Department that he

had taken his girlfriend, Kersten Kischnick, to dinner at the

"Jardin Brasilian," a Bayside restaurant, in downtown Miami.

Evidence presented at the evidentiary hearing showed that trial

counsel failed to investigate evidence that could have

corroborated Mr. Riechmann’s story. Police reports indicated that

the couple dined and drank for several hours at the "Jardin

Brazilian." Officers Aprile and Marcus interviewed the waiter

who served the couple that evening. The October 27, 1987 police

report of this interview with waiter Hernandez was never provided

to defense counsel. See, Def. Ex. DDD. Trial counsel deposed the

officers on March 15, 1988 during which they described their

interview of the waiter who served the couple until 10 or 10:30

the night of the crime. Trial counsel did not begin

investigating this avenue of defense until three and a half

months after the depositions. See, State Ex. 9; (PC-R. 5627-28;

5646-47; 5670; 5674).

The withheld report indicated that the couple appeared to be

vacationing tourists "in a good mood" and in "good spirits" (PCR.

104). The couple drank "six drinks each" of rum, vodka, gin

and Amaretto." State’s Ex. 9. They appeared "intoxicated." None

of this information was made available to defense counsel.

Between 10 and 10:30 p.m., the couple left the Bayside

restaurant by way of Biscayne Boulevard. As tourists often do,

they became hopelessly lost on the streets of Miami in search of

their hotel. At the evidentiary hearing, evidence was presented

that showed that trial counsel failed to investigate the

plausibility of Mr. Riechmann’s story. Testimony from defense

witness, Richard Mueller, a retired Metro-Dade police officer,

13.5 minutes to drive under normal conditions at 10 p.m.(PC-R.

3945). This intersection is halfway between the "Jardin

This exit is only four blocks from the location where Mr.

Riechmann flagged down Officer Reid.

Evidence was presented at the evidentiary hearing from the

going north. This area is one of the highest crime areas in

Miami. See, Def. Ex. N (PC-R.3860-3880).

Mr. Riechmann testified at trial that he and Kersten were

searching for someone to give them directions back to their

hotel. Mr. Riechmann was driving and did not know where he was.

He turned down a side street to ask for directions. Trial

counsel testified at the evidentiary hearing that he did not

recall asking his investigator to find the side street or locate

eyewitnesses to the murder of Ms. Kischnick (PC-R. 5673). He

Mr. Riechmann told him that the intersection looked familiar.

Mr. Carhart identified a bill for the services of an

investigative agency employed by him to investigate this case.

State Ex. 9 reflects a total of 18.7 hours of investigator time

invested in the defense of this circumstantial death penalty case

(PC-R. 5627-28). Evidence at the hearing showed that trial

counsel had only requested the investigators to look into two

issues: locating the waiter at the Bayside restaurant and

reviewing Miami Beach police frequency tapes (PC-R. 5626-28,

5647-48, 5670-71). No other investigative requests were made.

this crime occurred. He was unable to recall the year that this

incident occurred however he conceded that drug usage in the

years since the crime had impaired his memory. He testified that

his memory would have been better if he had been contacted at the

time of the crime.

At the evidentiary hearing, Earl Stitt and Hilton Williams

Blvd.) at the time that Mr. Riechmann became lost. These

witnesses corroborated Mr. Riechmann’s story that the crime was

an attempted robbery gone awry when he asked for directions from

a black man. (PC-R. 4398-4480).

Mr. Stitt said he saw a car "turn around...like they lost."

(PC-R. 4400). After hearing a gun shot, he saw the car "fleeting

back past me." (PC-R.4401, 4412). He heard about a German

Boulevard in 1986 and 1987. Id at 38. Like Stitt, he described a

red rental car with a white male driver and white female

passenger (PC-R. 4427-4428). He remembered seeing a lot of gold

jewelry on the passengers (PC-R.4428, 4449, 4468, 4476). He

corroborated Mr. Riechmann’s story that the white man had

difficulty communicating. "When we see they don’t speak no

English we don’t make no sense to even try...I don’t understand

that language." He said:

treatment (PC-R. 4457).

Once they came back our way somebody approached

thinking they want dope. When they see nobody wanted

dope somebody reached in inside with a gun. When the

man saw the gun he screeched off, but somebody already

got shot inside the car.

(PC-R. 4427; See also 4468-4469, 4475-76).

The car sped onto Biscayne Boulevard and headed north, going

"extremely fast." (PC-R.4430). Mr. Williams testified that the

shooter was "damn dumb" for letting "all the money get away."

The Williams and Stitt testimony corroborated many of the

details of Mr. Riechmann’s story. Mr. Riechmann testified that

he drove blindly through the confusing streets of Miami searching

for a police station or a policeman. He crossed a causeway and

finally on the other side of the bridge flagged down Officer

Reid, a Miami Beach Police Officer.

In broken English, Mr. Riechmann frantically tried to

describe what had happened to his girlfriend. According to

police reports which were withheld from defense counsel, Mr.

Riechmann was visibly "distraught," "upset," "sobbing,"

"dejected," "emotionally upset," "hysterical," "crying and

holding his face," "with tears coming out of his eyes," "smelling

of alcohol." "He obviously had been through a terrible

experience." (PC-R. 4565, 4575).

Mr. Riechmann was questioned at the scene by Officer Jason

to challenge the state’s disregard of the court’s order. Either

Mr. Carhart failed to speak to previous defense counsel to

discover the earlier court order or he ineffectively failed to

utilize it in prying discovery from the State.

from the proof sheets provided at trial. The photos were never turned over to the defense and are

still "missing."

Psaltides, who studied German for two years in high school. At

the evidentiary hearing, Ms. Hiltrud Brophy, a court-certified

German interpreter, testified that the "Consent to Search" form

written by Psaltides and given to Mr. Riechmann was a "collection

of German words" that was unintelligible (PC-R.4100). Mr.

Riechmann was not told that he could contact the German Consulate

in Miami to advise him on how to conduct himself in a different

legal system in a language he barely spoke.

From the outset, the Miami Beach Police Department employed

a unique approach to its investigation. Despite a pre-trial

court order giving the defense "carte blanche" discovery -–

Total. No ifs ands or buts, no conditions. Whatever the State

withheld. A myriad of photographs were taken by crime scene

technicians of the rental car Mr. Riechmann was driving.

Unfortunately, most of the critical photographs of the driver’s

seat, interior of the trunk and interior roof of the car were

At the evidentiary hearing, trial prosecutors testified that

they "whited-out" relevant exculpatory portions of discovery

materials, but could not or justify it (PC-R. 5482-5489). The

State admitted it failed to provide exculpatory investigative

materials gathered in Germany, but again could not say why (PC-R.

5505, 5508, 5513).

The State also admitted actively advocating for a favorable

post-trial sentence in federal court for Walter Smykowski, the

State’s key jailhouse witness. Smykowski described at trial

incriminating statements purported made by Mr. Riechmann when the

two were cellmates. He implied that police had overlooked a

fourth gun; that Riechmann was jubilant at becoming a millionaire

and that Riechmann turned "white as the wall" when asked if he

killed his girlfriend (R.4112). By strange coincidence,

Smykowski spoke a little German and allegedly asked prison

authorities to be placed in a cell with Mr. Riechmann because he

enjoyed playing chess with him.

Affidavits presented at the evidentiary hearing established

that there were five other cellmates near Mr. Riechmann who were

available to rebut Smykowski’s testimony. They knew Smykowski to

be a professional snitch and that he had been promised favorable

treatment by the State if he helped get Mr. Riechmann convicted.

Smykowski denied that he expected favors from the State in

exchange for his testimony. The prosecutor testified at the

evidentiary hearing that he failed to tell defense counsel his

intent to move for a reduced sentence. Id. at 38.

At the evidentiary hearing, a letter dated three weeks after

trial but before sentencing was admitted into evidence from the

trial prosecutor to the U.S. Parole Commission on Smykowski’s

behalf. When questioned about the state’s intent during trial at

the evidentiary hearing, Mr. DiGregory stated:

A...What I am 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).

Defense counsel testified at the evidentiary hearing that

Smykowski’s testimony hurt Mr. Riechmann’s case and that he did

not investigate the circumstances surrounding Smykowski’s

involvement in the case (PC-R. 5684). However, it was shown by

the testimony of Michael Klopf, a fellow prisoner of Smykowski’s,

that Smykowski planned and intended to lie to the police about

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 exposed him, but

he never received a reply (PC-R. 5749-5760).

Regardless of whether defense counsel would have used his

testimony, the letter from Lohse went unanswered and this

fruitful avenue was never investigated. Had it been, defense

counsel would have learned that Smykowski was lying and planned

to get a reward for his participation. Defense counsel admitted

at the evidentiary hearing that he did not investigate this

avenue (PC-R. 5684).

The State withheld critical police reports that contradicted

the State’s expert serologist Rhodes. Three police reports of

Detective Hanlon showed that Rhodes, 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 by Rhodes

was repeated in two other withheld police reports.

At the evidentiary hearing, Def. Ex. AA was introduced as an

example of the cover-up of Rhodes’ initial measurements. The

complete 11/2/87 police report of Detective Trujillo concerning

the window height was introduced as Def. Ex. AA, the report which

was never provided to defense counsel. Def. Ex. BB was the

report given to defense counsel. The withheld paragraph said:

14. Crime lab stated that the window had to be all

down but subject claimed window was half down for

security.

The State’s explanation for why this paragraph was not

disclosed to the defense was 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 failed to present evidence at the evidentiary

hearing by the author of the report to indicate that the omitted

portion of the report was a mistake. The prosecutor admitted at

the evidentiary hearing that the report would have been favorable

to the defense. He said defense counsel would have used it 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. The prosecutor also admitted at the

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).

In the direct appeal, this Court underscored the

significance that this blood evidence played in convicting Mr.

Riechmann. Citing testimony from Rhodes that blood on the

driver’s door "could not have gotten there if the driver’s seat

was occupied...", this Court stated, "We are

satisfied...[e]vidence of blood spatter and stains on the car,

blanket and clothes was consistent with the state’s theory of

what happened that night." Riechmann v. State, 581 So. 2d 133,

136, 141 (Fla. 1991).

At the evidentiary hearing, Judge Solomon, the state

attorneys and defense counsel all agreed that the blood evidence

was the lynch pin of the case (PC-R. 4965, 4994-99, 5003-04,

5007, 5089-90, 5486, 5685, 5719-5720). Defense counsel failed to

utilize readily available information and expert assistance to

discredit Rhodes’ grossly incorrect conclusions. Three pretrial

depositions of Rhodes were submitted into evidence at the

evidentiary hearing as State’s Ex. 10. In the May 24, 1988

deposition, Rhodes raised the "impossibility" of the driver’s

seat being occupied. (State’s Ex. 10 p. 25-27, 32, 40-43).

Stuart James testified at the evidentiary hearing that

Rhodes was wrong about the driver’s door, the blanket and he

covered up his earlier measurement of the passenger window. He

completely missed the most important item of bloodstain evidence

-- absolute proof that Ms. Kischnick was in the process of

handing three one-dollar bills to someone at the moment she was

shot (PC-R.3669-3671, 3682-3690). Mr. James eliminated the

possibility that blood specks on the driver’s door came from

exhaled blood (PC-R. 3681-3682; 3741-3742). He also found

Rhodes’ analysis of the "matted brain matter" on the headliner

above the passenger window described by various police officers

to be incorrect:

I have never seen in my experience over twenty-five

years with a small caliber weapon, I have never seen brain

deposited to the extent that it is matted on a surface as a

result of back spatter. ...to me it sounds much more like

transfer, contact transfer of brain matter possibly as she

was being removed from the vehicle...I have never seen it

with anything other than a shotgun. (PC-R. 3669-3670).

Mr. James challenged Rhodes’ analysis of the height of the

passenger window saying that,"[T]here is no way to know that this

is truly back spatter." (PC-R. 3674). If not back spatter, the

state’s theory as to any limitation on the amount of gunshot

residue in the car also is invalid.

As with the passenger window and the driver’s door, the

State used Rhodes’ flawed analysis of the position of a

shawl/blanket in the car to suggest that Mr. Riechmann could not

have been in the driver’s seat at the time of the shooting. Mr.

James concluded that Rhodes’ testing of the blanket was so

unscientific that to use it as proof that the driver’s seat was

The shawl/blanket evidence also is significant in that

defense counsel failed to use Officer Veski’s testimony regarding

his notes on the position of the shawl and whether there was even

any blood on the shawl. Veski wrote that the shawl/blanket was

draped over the passenger seat when he processed the rental car.

FSC Motion to Relinquish Jurisdiction filed June 3, 1997. Veski

testified in his deposition that the shawl/blanket was in the

backseat of the car. Assuming one of these two accounts is

correct, James’ opinion rings true that it was physically

impossible for the presumptive blood spatter evidence to show

whether the driver’s seat was occupied(PC-R. 3774).

Rhodes completely missed the bloodstain evidence on three

one-dollar bills on Ms. Kischnick’s left thigh at the time she

was shot. James conducted two physical inspections of all the

trial evidence. In his examinations of the clothing and

photographs of the victim, he discovered "extremely relevant"

information in that three one-dollar bills had blood spatter on

them. The bills directly fit into outlines of blank areas on Ms.

Kischnick’s left pant leg (PC-R. 3706). This information

corroborated Mr. Riechmann’s story that they were getting ready

to tip the man of whom they asked directions. Rhodes missed this

critical evidence entirely.

The State also withheld exculpatory reports about the

activities of the couple immediately before the shooting. The

10/27/87 report of Officers Aprile and Marcus was never provided

to defense counsel.

A 10/28/87 report of Officer Psaltides, three days after the

crime, indicates that Kersten’s father said the couple had known

each other for about "15 years and that their relationship was

good. He had no harsh comments about Mr. Riechmann." Def. Ex.

KK. This report was withheld from the defense.

The state conceded at evidentiary hearing that 37 statements

from fact witnesses gathered in Germany were not disclosed to

defense counsel (PC-R. 5478). The statements describe Mr.

Riechmann and his relationship with Kersten very favorably. The

materials discussed the independent sources of Mr. Riechmann’s

income from legitimate employment and business ventures. The

evidence showed that Mr. Riechmann was not a pimp as was

suggested at trial. These materials were never disclosed to

defense counsel even though they went to guilt as well as penalty

phase issues. The judge and the state were the only parties

privy to the 37 statements from German witnesses. The trial

judge relied upon these German statements as mitigating (R. 600).

DiGregory testified at the evidentiary hearing that he provided

Judge Solomon with the German witness statements, but failed to

give them to the defense. He said he did not know why he failed

to turn the statements over to the defense–-the court never

ordered him to do so. DiGregory also testified that if the

documents were available to the defense, he had no obligation to

turn them over. His interpretation of Brady was whether the

defense has access to the materials (PC-R. 5478-5507). Judge Gold

disagreed with his interpretation (PC-R. 6069).

In his February 22, 1988 deposition, Thomas Quirk testified

that it was his opinion that the only weapons that could have

fired the .38 caliber bullet were an Astra revolver, a Taurus

revolver, and an FIE Derringer. Def. Ex. TTT, P. 14, 19. At

trial, Quirk again testified that only these three types of guns

could have fired the fatal bullet (R. 2968-72). This Court relied

on those facts when it rendered its opinion affirming Mr.

Riechmann’s conviction:

We are satisfied that the state has met its burden of proof

in this instance...Riechmann possessed two of the only three

types of weapons that could have been used to kill

Kischnick, showing his preference for that particular type

of weapon.

Riechmann v. State, 581 So. 2d 131,141 (Fla.1991).

Although both guns had been ruled out as the murder weapon

(R. 2970), Mr. Riechmann’s connection to these weapons was

extremely harmful. Defense counsel failed to use available

expertise to rebut or investigate that Quirk’s testimony was

misleading. At the evidentiary hearing, Quirk conceded that

there were numerous other guns that could have fired the deadly

.38 bullet, based on their rifling characteristics –- guns that

he failed to mention in his pretrial or trial testimony (PCR.

5567-5568). Defense counsel failed to discover these facts.

Quirk also conceded that the data base he used for his trial

testimony was limited to guns that had passed through the Metro-

Dade crime lab as opposed to the "clearly more inclusive" FBI

data base (PC-R.5584).

Raymond Cooper, a ballistics expert, testified there were

fourteen different types of weapons that could have fired the .38

caliber bullets–-nine in the .38 caliber weapon category and five

in the .357 caliber category (PC-R.3821). Cooper testified that

the partial box of bullets found in Mr. Riechmann’s hotel room

was produced "in the millions per year." (PC-R. 3814). He said

the Winchester company "manufacture[s] millions of that

particular round per year." This would "absolutely" classify the

ammunition as "readily available." (PC-R. 3814). Trial counsel

failed to take reasonable measures to inform the jury that the

type of bullet that killed Ms. Kischnick was "readily available."

The state’s theory for the killing was that Ms. Kischnick

had a "serious gynecological problem" that made it impossible for

her to continue as a prostitute. The State’s theory was that Mr.

Riechmann, being her pimp and reliant on her income, murdered her

for insurance money because she was more valuable to him dead

than alive (R. 2402-04, 4977-78, 4982-84, 5082-84).

At the evidentiary hearing, testimony established that her

condition was greatly exaggerated to bolster the state’s case.

Ms. Kischnick’s medical records one month before her death do not

show a serious gynecological condition. Dr. Alex Brickler, an

expert gynecologist, testified that her medical records reflect a

"very common diagnosis and common malady" that was treated

successfully with antibiotics (PC-R. 3598-3599, 3507-3608).

Ulrike Karpischek testified that Ms. Kischnick did not

intend to give up prostitution (PC-R. 3618). The 37 German

witness statements and the German witnesses who testified at the

evidentiary hearing, which Judge Gold found credible, could have

been used to demonstrate that Mr. Riechmann was financially

independent of Ms. Kischnick, did not rely on her income as a

prostitute and was not her pimp.

Judge Gold found that defense counsel’s failure to renew his

request for these statements and his failure to discover the

German witnesses who testified at the evidentiary hearing was

"deficient performance," "unreasonable" and "below community

standards" (PC-R. 6075).

Testimony at the evidentiary hearing established that trial

counsel’s sudden unilateral decision to have Mr. Riechmann

testify was unreasonable and prejudiced his cause with the jury.

Trial counsel acknowledged that putting Mr. Riechmann on the

stand without any preparation was an unmitigated disaster.(PC-R.

5701). The decision for Mr. Riechmann to testify was solely his

(PC-R. 5629). Mr. Riechmann adamantly did not want to testify.

(PC-R. 5692). Even after pressure by defense counsel, Riechmann

was not convinced that he should testify (PC-R. 5692).

Mr. Klugh, assistant federal defender who represented Mr.

Riechmann on his federal charges, was brought in by defense

counsel to "get him [Reichmann] into some kind of frame of

mind...[T]his is going to be a shock to Dieter and he is not

going to want it." (PC-R. 3991). Counsel first told Klugh of his

plan to have Mr. Riechmann testify. He then told his client.

Klugh testified at the evidentiary hearing that "Dieter looked at

me and his jaw dropped literally...the sense of complete

bewilderment and shock taking over."(PC-R. 3991). Klugh was

unaware of time spent preparing Mr. Riechmann for testifying

before he took the stand. (PC-R. 3994).

Klugh observed the first day of trial and stated:

Q. And was it evident from that that he was not prepared?

A. Yes. What was striking to me was the --he hadn’t even

done the initial concept of preparing whether he was going

to speak through an interpreter or not. It was so

completely haphazard I was beside myself.(PC-R. 3997).

Expert testimony was offered at the evidentiary hearing to

assist the court in analyzing the propriety of forcing Mr.

Riechmann to take the stand. Mr. Potolski, qualified as an

such a degree that he sat at counsel table during penalty phase.

He had to ask bailiffs to retrieve evidence from the bench

because he could not walk. He was in extreme pain and under

medication but he did not request a continuance (PC-R. 4108).

expert defense attorney, concluded "In this case, there was some

very, very damaging impeachment and other evidence that would not

have been before the jury."(PC-R. 4310-4311).

Ms. Georgi-Houlihan, qualified by the court as an expert in

capital and criminal defense representation, testified, "I can’t

imagine aiming towards not having the defendant testify and then

suddenly putting him on...I am not aware of anything that would

have justified it."(PC-R. 4084-4085).

Because of all these errors at guilty phase, it was no

surprise that the jury found Mr. Riechmann guilty of first degree

murder. Penalty phase went no better. Defense counsel failed to

investigate or present any evidence in mitigation. At the

evidentiary hearing, counsel was unable to cite to one contact

with potential mitigating information. Among the 18.7 hours of

investigator time, none of it was devoted to investigating

possible mitigation witnesses. No calls were made to Germany for

potential witnesses despite a handwritten list of witnesses

The jury recommended death by a vote of 9 to 3 (R. 568).

Before sentencing, Judge Solomon had an ex parte

conversation with the prosecutor and he asked that the prosecutor

prepare the court’s sentencing order (PC-R. 6072-73). Prosecutor

court’s Sentencing Order in the State Attorney case files which

were disclosed during Mr. Riechmann’s Chapter 119 inspection of

those files. The ten-page document entitled "Rough Draft" of the

court’s Sentencing Order is evidence as Def. Ex. B. at the

evidentiary hearing.

DiGregory readily admitted that he prepared the sentencing order

at the request of Judge Solomon when they "ran into each other"

in the hallway(PC-R. 5464). It was a "momentary conversation"

where Judge Solomon told DiGregory to "prepare an order."(PC-R.

5490). DiGregory did not "recall him telling me the contents of

the order" and he admitted the words in the order were his. (PCR.

5490-91).

Judge Solomon said at the evidentiary hearing that although

he could not remember how he communicated with DiGregory, the

sentencing order "was based on my findings totally...the first

draft and the final draft."(PC-R. 5725).

Notwithstanding the inability of DiGregory and Judge Solomon

to remember the means by which the judge conveyed his thoughts,

DiGregory was responsible for drafting the ten-page sentencing

Judge Solomon said the sentencing order was his own because

he deleted one paragraph and added a paragraph on non-statutory

mitigation even though none had been presented by defense

counsel. He said:

However, the Court has taken into consideration, as a nonstatutory

mitigating circumstance a collection of statements

taken by the police in the Federal Republic of Germany.

These statements of acquaintances, friends and the ex-wife

of the defendant suggest that those persons found him to be

a good person. Thus non-statutory mitigation is warranted

(R. 600).

Defense counsel never received 37 German witness statements

because they were withheld by the State as not discoverable.

Defense counsel failed to renew his request for the statements

after in camera review by the Court. The jury never heard about

these 37 credible witnesses by Judge Solomon’s standards. Nor

did the jury learn the mitigating evidence that they contained

(R. 600). At the conclusion of the evidentiary hearing, Judge

Gold entered an order denying relief on Mr. Riechmann’s

convictions but set aside the sentence of death based on the

state’s preparation of the judge’s sentencing order, the

ineffective assistance of counsel at penalty phase and the Brady

violation by the State in withholding the 37 German witness

statements from defense counsel(PC-R.6077-78).

The State chose to appeal this case, even though it has

declined to so in similar cases such as Maharaj v. State, Case

So.2d 344 (Fla. 1995). Mr. Riechmann cross-appeals the lower

court’s denial of guilt phase relief.

1. The lower court failed to grant a new trial on Mr.

Riechmann’s claims of ineffective assistance of counsel at guilt

phase. Judge Gold failed to apply the same fact analysis on the

guilt phase evidence that he used to evaluate the penalty phase

evidence. Trial counsel failed to investigate facts of the

offense that would have proved Mr. Riechmann innocent. He failed

to challenge the state’s forensic experts and failed to obtain

his own experts to rebut the state’s case. He failed to present

evidence of 37 German witnesses who could have testified about

the relationship of the couple. He failed to investigate

available evidence to discredit Smykowski, the state’s informant.

He failed to transcribe or introduce evidence of police

misconduct. He failed to investigate and present the cultural

differences between German and American lifestyles. He failed to

request a second lawyer to assist in preparing Mr. Riechmann’s

defense when it was clear he was overwhelmed by the state’s case.

He failed to investigate rebuttal evidence on the health of Ms.

Kischnick. A new trial is necessary.

2. Newly-discovered evidence establishes that there were

eyewitnesses to the carjacking who were not previously available.

These witnesses rebutted the state’s theory that Mr. Riechmann

killed the victim and corroborated Mr. Riechmann’s version of the

crime. New evidence proves that Smykowski’s testimony at trial

was knowingly false. A new trial is appropriate.

3. Material evidence was withheld by the state and police

that proved that Mr. Riechmann’s account of the crime was

consistent with the evidence gathered at trial. The state’s

disregard of Judge Sepe’s order for open discovery and its

failure to disclose exculpatory evidence renders Mr. Riechmann’s

trial fundamentally unfair.

4. The lower court correctly vacated the death sentence

and correctly ordered a new sentencing before a new judge and

jury. Under the facts of this case, a new trial is necessary

because counsel failed to investigate both trial phases, thus

rendering the outcome unreliable. The state’s admitted drafting

of the sentencing order through ex parte contact with Judge

Solomon renders all of the fact findings suspect. On direct

appeal, this Court relied on the purported fact findings of the

trial judge. In reality, the findings are those of the state.

No "independent" weighing of the guilt or penalty facts could

occur. Confidence in the outcome is undermined.

5. Mr. Riechmann received ineffective assistance of

counsel when his trial counsel failed to effectively argue to

suppress the illegally-obtained evidence from Germany. Had

counsel investigated, he would have learned that many of the

searches conducted by the German authorities, prodded by the

American prosecutors, were illegal under German law and based on

misinformation from the Miami police. A new trial is required.

6. Mr. Riechmann was denied effective assistance of

counsel when his trial counsel prevented the jury from learning

that Mr. Riechmann had been acquitted on federal gun charges

before his arrest on first-degree murder charges. Because the

jury was not told of Mr. Riechmann’s acquittal, the jury was free

to believe that any statements Mr. Riechmann allegedly made to

the jailhouse snitch involved the murder and not the federal gun

charges. Evidence about Mr. Riechmann’s relinquishing all

insurance proceeds to the family of Ms. Kischnick left the

impression that he was doing so in an effort to "look good," when

in fact he had done so before he was ever charged with murder.

7. Mr. Riechmann was denied effective assistance of

counsel when his trial counsel failed to object to the state’s

egregious misconduct throughout the trial. The state continually

attacked Mr. Riechmann’s lifestyle and his right to remain

silent. Such personal attacks were improper and prejudiced the

jury against Mr. Riechmann.

8. Mr. Riechmann received ineffective assistance of counsel

when he wanted African-American jurors on his panel, but trial

counsel ignored his wishes.

9. Mr. Riechmann received ineffective assistance of

counsel when his trial counsel failed to cross examine and

impeach key state witnesses. Trial counsel’s failure to do so

was based on his lack of investigation. A new trial is proper.

The State’s case was a house of cards. When one lie is

revealed the entire case crumbles. The lower court recognized

this in finding specific facts that required him to correctly

rule that Mr. Riechmann’s sentence be set aside. The lower court

relied on a combination of errors relating to trial counsel’s

failure to adequately investigate or prepare a defense at penalty

phase; the state’s failure to disclose material and exculpatory

evidence pursuant to Brady that would have aided in Mr.

Riechmann’s defense; and the trial court’s failure to prepare its

own findings of fact in sentencing. The hearing court failed to

recognize that these same deficiencies applied to guilt phase

evidence.

At an evidentiary hearing held in May, June and July, 1996,

Mr. Riechmann proved he is entitled to relief. Judge Gold set

aside Mr. Riechmann’s sentence but did not disturb the

convictions. Based on the court’s own findings and the facts

that the court mistakenly failed to apply to the guilt phase, Mr.

Riechmann is entitled to a new trial. The hearing court held:

The Court concludes that trial counsel’s performance at

sentencing was deficient. First, trial counsel failed to renew

or pursue his motion to obtain the German and Swiss statements

which would have provided him with mitigating evidence to present

to the jury. To not do so vigorously when he lacked any

mitigating evidence of his own was unreasonable and below

community standards, especially where his closing argument

contained little, if anything, of a mitigating nature. (PCR.

4321-22; 4324).

The Court concludes that the Defendant was prejudiced by his

counsel’s failure to present available mitigation as to his

positive character traits, personal history and family

background... With such evidence presented, there is a reasonable

probability the outcome of the case would have been different, as

against a jury, who without any mitigating evidence, was already

ambivalent about their recommendation.

Moreover, when the cumulative effect of the trial’s

counsel’s deficiency is viewed in conjunction with the improper

actions of the trial judge and prosecutor during the penalty

phase, the Court is compelled to find, under the circumstances of

this case, that confidence in the outcome of the Defendant’s

penalty phase has been undermined. See, Gunsby v. State, supra,

670 So. 2d 920 (cumulative effect of errors may constitute

prejudice), and that the Defendant has been denied a reliable

penalty phase proceedings. Hildwin v. Dugger, 654 So. 2d 107,

110 (Fla. 1995). (PC-R.6076-6079).

The lower court failed to apply these same principles of

deficient performance to the guilt phase issues.

At the evidentiary hearing, defense counsel, Mr. Carhart

testified that he considered the blood spatter evidence to be a

"lynch pin" of the state’s case but that he considered the

state’s expert, Mr. Rhodes, to be "benign" until his trial

testimony. He said Rhodes’ importance did not become evident to

him until "...it was showering down on me at trial." (PC-R.5685).

Judge Gold acknowledged that trial counsel’s failure to

investigate rebuttal evidence was not tactical and that trial

counsel should have been aware of this important evidence:

Applying these principles, the Court concludes that

trial counsel’s performance was not deficient. Admittedly,

trial counsel offered no tactical reason why he did not

retain or call an expert serologist.

***

sufficient time to retain an expert in gunshot residue, Dr.

Guinn. It stands to reason that if counsel had time to retain

one expert, he had time to retain an expert on the pivotal

bloodstain evidence.

By July 7, 1988, trial counsel was certainly on

notice that Mr. Rhodes’ testimony was a "moving target"

and ultimately problematic. (PC-R. 6036-37)(emphasis

added).

Instead of applying the same principles it used to grant

relief in sentencing, the Court gave a convoluted excuse for why

defense counsel did not investigate or present rebuttal evidence:

Notwithstanding Mr. Potolski’s testimony, the

Defendant has failed to sufficiently meet his burden by

demonstrating that, based on a reasonable probability,

Mr. James, or a similar expert, would have been found

by an ordinary competent attorney using diligent

efforts and that such an expert would have been

prepared to rebut the State’s serologist at trial.

***

Rather, the "reasonable probability" standard must

be measured from trial counsel’s perspective at the

time, without resort to distorting hindsight. No

testimony was offered that, given the time limitations

immediately before trial, Mr. James could have rendered

the same opinions as offered at the post conviction

hearing. (PC-R. 6037-38).

Judge Gold said Stuart James was credible. He simply

questioned Carhart’s ability to retain an expert within the time

requested a continuance to get an expert. The Court then

concluded that trial counsel’s cross-examination of the witness

was effective in showing the weaknesses of Rhodes’ testimony (PCR.

6038-39).

The community standards that the judge upheld on penalty

issues were ignored here. Trial defense expert, Potolski,

testified that it was unreasonable for an expert not to be

retained to rebut the forensic blood evidence in this case. If

Judge Gold found Potolski to be credible on penalty phase issues

then logically he is credible on guilt phase issues.

The Court completely misconstrued the duty of trial counsel.

Trial counsel conceded he had no tactic or strategy for failing

to investigate the blood spatter evidence. Carhart could not

make a reasonable decision without investigating this evidence.

Carhart was on notice that this evidence was important. He had a

duty, at least, to investigate the possibility of getting

information, evidence or an expert to rebut the important blood

evidence. He knew that he needed an expert for the ballistics

evidence–-he retained Dr. Guinn. He also was on notice that he

needed a serology expert.

Carhart did not know if experts were available because he

did not look. He did not know that the tests conducted by Rhodes

defied the laws of physics. He did not know whether an expert

was available because he did not ask. The circumstantial nature

of the evidence in this case made impeachment of Rhodes’

testimony critical. Cross-examination alone may have been

impeaching but cross-examination is not hard evidence that could

rebut the scientific facts. Defense counsel did not even ask if

there was expert in serology who could testify or assist him in

cross-examination of Rhodes.

It is not difficult to ascertain whether a serology expert

exists. To say that counsel’s performance should begin during

the middle of trial when he realized that he had underestimated

Rhodes is to reward him for his lack of preparation for trial.

Carhart admitted he did not have a strategy or tactical reason

for not seeking information. Lack of preparation cannot be

considered effective assistance of counsel.

The jury did not know that James could have testified that

he was certain that the handful of blood specks found on the

driver’s door and window did not come directly from the shooting.

If this was true, the specks obviously had no significance on Mr.

Riechmann’s presence or absence from the driver’s seat at the

time of the shooting. James explained:

I do not believe it is physically possible, based upon

mechanics of back spatter with an entrance wound, to refer

to any small specks of blood that are on the opposite side

of the vehicle going in the direction of the projectile when

there is no exit wound. Back spatter doesn’t act like that.

It does not defy the laws of physics. It does not come out

of the back of the head and go up and out the other

direction. It just doesn’t happen(PC-R. 3681-3682; 3741-

3742).

James also eliminated the possibility that the blood specks

on the driver’s door came from exhalation of blood. The distance

and required angle from Kersten’s nostril precluded such a

possibility (PC-R. 3681-3682; 3741-3742). James performed a

flick test that showed how easily small specks could have gotten

on the driver’s side door from flicking one’s fingers See, Def.

Ex J. This corroborated Mr. Reichmann’s testimony at trial in

guilt phase. James emphasized that the blood on the driver’s

door could have gotten there any number of ways, due to the

amount of activity occurring in the car and the evidence that the

door opened and closed more than once. Id.

Rhodes mistakenly assumed that the blood on the window got

there at the time of the shooting. He concluded that the window

was only open 3 to 3 and one half inches at the moment of the

shooting. This calculation is of great importance to the state

because it argued that only a portion of the murder weapon could

have been inserted through the window, affecting the amount of

gunshot residue in the car. James concluded there was no way to

conclude that the "presumptive blood" on the window came directly

from the shooting.

The presence of matted brain matter on the headliner above

the passenger window was a significant factor at trial. James

found the descriptions of Rhodes’ analysis to be incorrect.

...When you shoot someone, you know, with a .38, I have

never seen brain matter come roaring back toward the

shooter, and if it had why isn’t it on the window? I mean,

that didn’t make any sense to me (PC-R.3669-3670).

Mr. Riechmann’s jury was similarly misled about the

significance attached to the blanket recovered from the driver’s

seat of the car. As with the driver’s door, the state used

Rhodes’ flawed analysis to suggest that Mr. Riechmann could not

have been in the seat at the time of the shooting. James said by

failing to use a " negative control" or to test portions of the

blanket other than the top and bottom surfaces made the test

invalid. "[T]his blood occurred at a prior time. It has nothing

to do with the shooting or exhalation" (PC-R. 3702-3703).

Since Rhodes also obtained positive test results for

"presumptive" blood on the underside of the blanket as well as

the top, "the blanket becomes a non-issue." Id. "It is not

usable for any opinion that I can give." Id. "[H]igh velocity

impact spatter is not going to drip through anything...it will

not soak through, because is dries almost immediately...within

less than a minute. Easily." Id. James concluded that Rhodes’

testing the blanket to determine whether Mr. Riechmann occupied

the driver’s seat was "very misleading." Id.

Finally, James discussed the string test performed by Rhodes

to show the origin of the blood specks on the driver’s door by

running strings from the various specks to the point of common

origin on the right side of the passenger’s head (R. 3893-3906).

James found this test to be invalid because of the impossibility

of the blood "defying the laws of physics" and jumping over the

victim’s head to get to the driver’s door and due to the shape of

the bloodstains described by Rhodes (PC-R. 3770). The jury never

heard this information. Rhodes also completely missed the

bloodstain evidence on the three one-dollar bills found in

Kischnick’s leg that further corroborated Mr. Riechmann’s story

(PC-R. 3706).

Attorney experts Potolski and Georgi both testified at the

evidentiary hearing about the need for early and thorough

preparation for these types of cases. Failure to prepare or

investigate the case in advance was deficient performance of

counsel. The state offered no evidence to rebut their expertise.

Judge Gold erroneously held that under the time constraints

imposed on Carhart at trial, it was not unreasonable for him not

to obtain a blood-spatter expert. This ruling is contrary to the

evidence because Judge Gold failed to recognize that Mr. Carhart

placed the time constraints on himself. Had Carhart prepared

pre-trial for the blood expert’s testimony, he would have proven

to the jury that Rhodes’ unscientific methods were bunk. Counsel

had sufficient time to retain an expert because he retained Dr.

Guinn to rebut the state’s gun residue evidence. Even Judge Gold

acknowledged that Carhart should have known what Rhodes’

testimony was going to be important (PC-R.6037).

Judge Gold ruled that Mr. Riechmann did not prove that an

expert would have been available at the time of trial. However,

James testified that he would have been available to testify.

Dr. Guinn made himself available to defense counsel for the

gunshot residue testimony. If not James himself, other serology

experts were available upon proper notice by defense counsel.

A reasonableness standard cannot attach unless defense

counsel made a strategic or tactical informed choice that he will

not present or seek certain evidence. Strickland v. Washington,

466 U.S. 668 (1984). Carhart did not have a strategic reason for

failing to investigate evidence to rebut the State’s forensic

expert, therefore, he should not be subject to a reasonableness

analysis. He should be subject to the same standard Judge Gold

used on the penalty phase issues--that community standards

dictate that a reasonable attorney under the same circumstances

would have investigated possible rebuttal evidence before the

trial started.

The Court failed to recognize the significance of the state

withholding a critical police report from the defense that

directly rebutted the testimony of Rhodes. The court held that

defense counsel’s failure to retain a blood spatter expert was

not prejudicial to Mr. Riechmann’s case because trial counsel had

the ability to cross-examine the expert. The court also said

there was no evidence presented that a blood expert could have

been available at trial(PC-R. 6037-38).

Neither of these issues address the prejudicial effect of

the uncontradicted expert testimony on the jury. The jury never

heard that Rhodes’ testimony defied the laws of physics; that his

methods were scientifically suspect; that the conclusions he drew

regarding blood droplets on the blanket were not made at the time

of the crime; that Rhodes’ string test indicated no one point of

origin; that Rhodes completely missed the blood evidence that was

present on several one-dollar bills that were on Kersten’s leg at

the time of the crime; and that the blood spatter evidence on the

passenger window indicated that the window was rolled down

significantly lower than he testified to at trial.

Judge Gold also failed to consider the devastating impact of

the Brady violation. The state withheld the police report of

Officer Trujillo, proving that the passenger window of the rental

car was down significantly lower than Rhodes’ testimony

indicated. The withheld report completely discredited Rhodes.

Had the jury heard this evidence and defense counsel investigated

the possibility of using evidence to rebut the state’s blood

spatter expert before the trial started, the outcome of the trial

would have been different.

Trial counsel testified at the evidentiary hearing that he

had no tactical or strategic reason for not obtaining expert

assistance on blood evidence. He inexplicably failed to

investigate this highly technical area of forensic evidence–the

"lynch pin" of the state’s case. Defense counsel testified that

he did not realize until he was in trial that the evidence was

going to "evolve" in this manner. However, the record belies

this testimony. Trial counsel deposed Rhodes three times. Judge

Gold acknowledged that the depositions reflected what Rhodes was

going to testify about (PC-R. 6037-38). Because of the

circumstantial nature of this case, trial counsel admitted that

this evidence was central to the state’s ability to make a case

against Mr. Riechmann. Mere cross-examination of a witness is

not enough to rebut scientific forensic evidence.

To the extent that the state prevented counsel from

However, counsel had no facts to back up his intuition.

discovering exculpatory evidence that would have undermined the

credibility of Rhodes, Mr. Riechmann was prejudiced by the jury’s

inability to consider this evidence in evaluating his testimony.

The state conceded that defense counsel was not provided with the

reports of Officer Trujillo that contained exculpatory evidence.

The lower court misconstrued the import of this omission.

An important factor in Mr. Riechmann’s conviction was

testimony from Metro-Dade gunshot residue analyst Gopinath Rao.

Riechmann v. State, 581 So. 2d 133, 136, 141(Fla. 1991)(citing

gunshot residue testimony); state’s closing arguments, R. 5965,

4990-94, 5002, 5007, 5086, 5088 ("Would an innocent man, ladies

and gentlemen, have gun shot residue all over his hands?")

evidentiary hearing testimony of trial prosecutor Sreenan (PC-R.

4767) "I think that was important, too.").

Rao’s testimony was significant because he testified that

Mr. Riechmann "probably" fired a gun, based on the number and

type of particles found on his hands (R. 3545-46, 3553-54). This

testimony of Raymond Cooper, expert firearms examiner at the

evidentiary hearing, Rao’s opinions flouted universally accepted

norms for gunshot residue analysis:

[T]he only conclusion you can draw from a positive gunshot

residue analysis is that the person either fired the weapon, was

in close proximity of a weapon being fired...or he handled a

recently fired weapon...

(PC-R. 3826). Cooper said there is "absolutely not" a way to

distinguish between those three possibilities. Id. Cooper was

unaware of any study or research that "would allow an expert to

offer the opinion" offered by Rao (PC-R. 3827). Cooper had never

heard of anyone rendering such an opinion (PC-R. 3829).

Cooper challenged Rao’s testimony that the presence of "one

more unique particle which contained all three [trace] elements"

would have enabled him to say to a scientific certainty that Mr.

Riechmann fired a gun. Cooper had never heard of such a thing.

Trial counsel failed to impeach Rao on these unscientific

conclusions or present any evidence that Rao’s conclusions were

false. The jury was forced to accept what the state presented

even though the conclusions defied the FBI standards and the

profession. As evident by this Court’s opinion on direct appeal,

Rao carried the day because of counsel’s failure to investigate

and present impeachment or rebuttal evidence.

Despite Judge Gold’s concerns about the time constraints of

defense counsel, he had ample notice of Rao’s opinion and plenty

of opportunity to challenge his testimony. In his February 22,

1988 deposition, Rao said that Mr. Riechmann "probably fired a

gun." Def. Ex. SSS pp 34-36, 49-50. A daily transcript of Rao’s

testimony also was prepared. Two weeks earlier, counsel called

Dr. Guinn as an expert in gunshot residue for the defense.

The prejudice to Mr. Riechmann was that the jury was not

aware of the voodoo Rao was trying to spin. Defense expert,

Potolski testified that the use of professional protocols in

forensic evidence such as Rao’s could have been "devastating" to

Rao’s inculpatory testimony:

[M]y recollection of what I read was that the FBI says the

most you can say when there is gunshot residue on an individual’s

hands is that the person was in the vicinity when a firearm was

discharged. That is the Federal Bureau of Investigation. That is

the agency that experts and even jurors just instinctively know

is the authority.

If you have something from the FBI that says that and you

are cross examining a witness who says otherwise, it is likely

that the witness is going to lose. (PC-R. 4285).

Judge Gold once again found that cross examination had

sufficiently shown the "weaknesses in the witness" testimony.

The Court concluded that trial counsel’s performance was "neither

deficient nor prejudicial" in failing to use the available

authoritative literature and prevailing professional norms for

impeachment (PC-R. 6045). Judge Gold, however, failed to

recognize the significance of hard evidence to rebut forensic

evidence. The Court also failed to recognize the significance of

the crime lab technicians’ failure to swab the interior of the

rental car for gunshot residue to get the levels at which gunshot

particles had been emitted into the car. Without this

information, Mr. Riechmann could not prove that the residue

levels on his hands when swabbed by the MBPD were consistent with

levels everywhere else in the car.

The jury never knew that the FBI professional norms and

controls were not used in this case. Regardless of the

impeachment of the witness, the jury never knew that the

scientific conclusions of Rao were false.

Counsel’s failure to rebut incorrect firearms and bullet

examination testimony was equally egregious. Defense counsel was

on notice that the state’s witness would testify that only three

types of guns could have fired the fatal shot. In the deposition

of Thomas Quirk on February 23, 1988, counsel knew that Quirk’s

opinion was that the only weapons that could have fired the

bullet were an Astra revolver, a Taurus revolver, and an FIE

Derringer. At trial, Quirk testified consistently with his

deposition (R. 2968-72).

The significance of this testimony was that two of the three

possible weapons discussed by Quirk were found in Mr. Riechmann’s

hotel room; a Taurus revolver and a FIE Derringer. Although both

guns were conclusively shown not to have been the murder weapon,

the implication of Quirk’s testimony was extremely harmful.

This Court underscored the importance of this evidence:

The expert also testified that the bullet that killed

Kischnick could have been fired from any of three makes of guns.

Riechmann owned two of those three makes of weapons...

We are satisfied that the state has met its burden of proof

in this instance...Riechmann possessed two of the only three

types of weapons that could have been used to kill Kischnick,

showing his preference for that particular type of weapon.

Riechmann v. State, 581 So. 2d 131, 136, 141 (Fla. 1991).

This Court was forced to rely on evidence that was false and

misleading. Fourteen (14) types of guns could have been used in

this crime, most of them relatively common (PC-R. 3821-22).

At the evidentiary hearing, Quirk conceded that there were

numerous other guns that could have fired the deadly .38 bullet,

based on their rifling characteristics–-guns that he failed to

mention in his pretrial or trial testimony (PC-R. 5575; 5580-81).

(PC-R. 5581). Quirk conceded that the data base he used to

determine which types of guns could have fired the .38 bullet was

limited to those guns that had passed through the Metro-Dade

Crime Lab as opposed to the more inclusive FBI crime lab.

Counsel’s failure to prepare adequately for this very damaging

state’s evidence prejudiced Mr. Riechmann’s defense.

Trial counsel also failed to inform the jury that the type

of bullet used to kill Ms. Kischnick was produced in the

"millions per year"(PC-R. 3814). Raymond Cooper testified at the

evidentiary hearing that the Winchester company manufactures

"millions of that particular round per year." Id. This would

"absolutely" classify the ammunition as "readily available." Id.

Such testimony would have minimized the impact of the forensic

barrage that was left dangerously misunderstood by the jury.

Judge Gold ignored the prejudicial impact of this evidence

by sidestepping the issue:

Even if such rebuttal evidence were available, the Court

concludes, after considering all the evidence at trial, that

the Defendant has failed to prove prejudice

(PC-R. 6047).

There was unrebutted evidence at the evidentiary hearing

that this information was available through Quirk himself. There

was no evidence that the information was not available. Counsel

did not say that he tried to get the information and it was

unavailable. Counsel did not investigate the possibility of

rebuttal evidence. He did not have a strategic reason for not

investigating this avenue. This misleading information had a

prejudicial impact on this Court and the jury.

At a pre-trial hearing, Judge Sepe ordered that Mr.

Riechmann be provided with every piece of discovery that the

state gathered. Judge Sepe said the defense would have "carte

blanche" discovery -– Total. No ifs ands or buts, no conditions.

Whatever the State has, he gets." (R. 634) Defense counsel

either was unaware of this order or failed to notify Judge

Solomon of the existence of this open discovery order. Although

this order had been entered in the presence of the state

attorneys, the state continued to hide evidence from defense

counsel at each opportunity. Defense counsel testified:

Everything had to be pried out. Everything had to be argued

for. Everything was argued over...the redactions in the

reports...or cutting and pasting...was the norm.

[W]e were arguing discovery right through trial...I

mean it just –- it was a very conservative guard approach

for giving discovery in the case.

I don’t think I’ve ever been in a case as a defense

lawyer where it was so difficult to get discovery from the

state.(PC-R.5659-5661).

Even though the Brady violations were many, defense counsel

still had a responsibility to investigate the case. Beyond

taking depositions, defense counsel conducted no other factual

investigation. At the evidentiary hearing, Carhart identified a

investigative bill that reflected only 18.7 hours of investigator

time invested in the defense of this important circumstantial

evidence case (PC-R. 5627-28). Carhart said the investigator’s

instructions were to locate the waiter who served the couple only

minutes before Ms. Kischnick’s demise and to review "Miami Beach

police frequency tapes." (PC-R. 5626-28, 5647-49, 5670-73). Both

efforts were fruitless, as the waiter was no longer employed at

the Jardin Brazilian and the police tapes yielded nothing.

The Bayside waiter was a critically important witness for

the defense because he observed the couple in good spirits and

happy. Efforts to find the waiter did not occur until June 30,

1988 (PC-R. 5672) one week before trial. This was more than

eight months after the incident; five months after Carhart began

his representation and three months after counsel took the

depositions of officers Aprile and Marcus. A belated

investigation in a case of this magnitude is not effective

representation. Had counsel investigated, the results of this

case would have been different.

Carhart testified that he had no recollection of asking an

investigator to locate eyewitnesses to the murder of Ms.

Kischnick (PC-R. 5673). Had counsel done so he might have

located witnesses Early Stitt and Hilton Williams, who testified

off Biscayne Boulevard when Kischnick was shot (PC-R. 4398-4480).

Judge Gold in his order and the state in its brief say that

defense counsel was hampered in his investigation by Mr.

Riechmann’s inability to give a precise location where the crime

occurred. Hogwash! Collateral counsel had at his disposal the

same exact facts that defense counsel had. Early Stitt and

Hilton Williams were found. However, there is no indication in

the record that defense counsel even sent an investigator to look

for witnesses. The investigative bills prove this fact. In a

case of this magnitude, the investigation should not fall on a

defendant who is a German citizen and does not understand the

United States legal system or the language. There are no

indications in the record that Mr. Riechmann interfered with

counsel’s investigative efforts. In fact, Mr. Riechmann gave

counsel a list of potential witnesses to contact in Germany(PCR.

5646). Mr. Riechmann, a foreign national, relied on defense

counsel to know how to investigate and present a case in the U.S.

Courts. To expect Mr. Riechmann to be responsible for directing

the investigation is ludicrous and not the state of the law.

In his evidentiary hearing testimony, defense expert

Potolski explained the importance of a prompt, sound, and

thorough pretrial investigation, especially in a circumstantial

evidence case such as this one (PC-R. 4269-4273). "You have got

to attempt to create what happened as soon as possible." Capital

report of Aprile and Marcus describing their interview with

waiter Hernandez was ever provided to the defense.

defense attorney Edith Georgi-Houlihan, also qualified by the

Court as an expert in such matters, testified:

"So...I can say that unequivocally putting together the case

from the start and investigating absolutely every aspect of

the case...is essential and to not do so is unacceptable.

(PC-R. 4058).

Ms. Georgi-Houlihan added that Mr. Riechmann’s case required a

particularly intensive investigation "for many, many factors."

Id. To now blame counsel’s lack of preparation on the client is

disingenuous and wrong.

Expert defense attorney Potolski testified:

[I]t is pretty obvious that ...the last provable actions

prior to the incident are going to be crucial to a jury or

anyone else.(PC-R. 4272).

Counsel failed to present evidence to corroborate Mr.

Riechmann’s story. From the outset it was known that the couple

dined and drank at a Bayside restaurant. Officers Aprile and

Marcus were named in a discovery response in February and deposed

on March 15, 1988. They described their interview of the waiter

who saw the couple for several hours until 10 or 10:30 p.m. the

Given that Mr. Riechmann flagged down a police officer for

help at 10:32 p.m., the Bayside waiter was clearly important.

From the depositions, defense counsel knew of crucial testimony

that would have supported Mr. Riechmann’s account and undermined

the state’s outlandish characterization of his story. The time

frame was critical. That the couple –- only moments before the

tragedy –- had every appearance of vacationing tourists "in a

good mood" and in "good spirits" would certainly have helped (PCR.

4272). They consumed "six drinks each" of rum, vodka, gin and

Amaretto. They were "intoxicated," which accounted for getting

lost and for Mr. Riechmann’s inability to reconstruct the

location. Counsel did not send an investigator to the restaurant

until three and a half months later. (PC-R. 5626-28, 5647-49,

5670-5673).

While counsel made no effort to verify the plausibility of

Mr. Riechmann’s story, the state went to great lengths to

belittle it. The jury and this Court were left with the

impression that Mr. Riechmann’s story was suspect because he

inexplicably spent too much time "looking for help, driving as

many as ten to fifteen miles before he hailed Officer Reid to get

assistance." Reichmann v. State, 581 So. 2d 133, 136 (Fla. 1991).

The October 28 taped statement of Mr. Riechmann to police

illustrates how he was hopelessly confused about his travel on

the night in question. In his trial testimony ten months later,

he was no better able to shed additional light on how it

happened. This was exacerbated by Riechmann’s ill command of the

English language.

Counsel also could have presented data from the Miami Police

Bayside going north and is one of the highest crime zones in

Miami (PC-R. 3860-3880). Nearly one violent crime occurs in that

neighborhood every day.

The jury never knew that in the aftermath of the shooting of

his girlfriend, Mr. Riechmann was "distraught,"

"upset,""sobbing,""with tears coming out of his eyes,"

"dejected," "emotionally upset," "hysterical, like crying and

holding his face," "smelling of alcohol."(PC-R. 4565, 4575).

Such descriptions of how the "alleged" murderer acted in the

moments immediately after the shooting would have substantially

advanced the defense case. Contrary to Judge Gold’s order, this

information was not presented to the jury.

Judge Gold said that the relationship between Mr. Riechmann

and Ms. Kischnick was presented at trial:

The remainder of Claim I...(addressing trial counsel’s

failure to present evidence of the Defendant’s relationship

with the Victim), focuses on evidence which new counsel

asserts should have been presented at trial; however, most

of this evidence had already been presented to the jury,

although in a manner different from now desired (PC-R.6049).

The only evidence presented on this issue came from state

witnesses. Their testimony was not beneficial to the defense.

Dina Moeller testified Kristen and Dieter loved each other but

they did not get along well.

Likewise, the "cervical erosion" of Ms. Kischnick used by

the state as part of the motive for the murder, was false. Ms.

Kischnick had a common illness that was treated with antibiotics.

Independent defense evidence could have established this fact.

Conclusive evidence that this was a common illness did not come

to the jury through cross-examination.

Defense counsel did no independent investigation into these

witnesses even though Mr. Riechmann gave him a list of people to

contact. No hard evidence showed that Mr. Riechmann was

financially independent and not a pimp. There was no medical

evidence to show that "cervical erosion" of the victim was

fiction created by the state. There was no hard evidence that

the couple had a loving relationship, even though the information

was available from the suppressed 37 German witness statements

and the German witness who testified at the evidentiary hearing.

Dina Moeller’s testimony that the couple loved each other but did

not get along well is not a glowing example of a harmonious

relationship. The jury was left with inaccurate information.

Judge Gold failed to acknowledge the significance of the 37

German witness statements not presented to the jury during guilt

phase. Counsel failed to present the witnesses that would have

been most helpful in rebutting motive. The information contained

in these statements would have refuted the waffling testimony of

the state’s witnesses, particularly Dina Moeller. These

statements were found to be credible enough by Judge Solomon to

warrant him giving them weight as non-statutory mitigation.

At the evidentiary hearing, defense counsel testified that

the relationship between Dieter and Kersten was "one of the

central issues in this case" (PC-R. 5697). Judge Solomon also

attested to this fact in his hearing testimony:

Q. Do you feel that the relationship between Mr. Riechmann

and the victim in this case, Ms. Kischnick, was a prominent

aspect of the case?

A. Yes.

Q. Would you feel it would be important for defense counsel

to do his own investigation of that relationship?

A. Yes.

Q. Would you believe it would be remiss for counsel not to

do so?

A. I believe so.(PC-R. 5720).

Despite the consensus that the relationship was important to the

guilt phase case, there are no indications that counsel did

anything whatsoever to investigate the matter himself. He did

not send an investigator to Germany. Judge Gold found that the

few phone calls Carhart made to Germany were essentially "efforts

to raise funds" (PC-R. 5679-5681). He made no attempt to

interview people who knew his client or the victim, although he

was specifically asked to do so by Mr. Reichmann. Def. Ex. QQQ.

At the evidentiary hearing, numerous witnesses were

available to testify that Dieter and Kersten had a very close

relationship; that he treated her very lovingly and respectfully,

that he was a good and devoted partner; that he was totally

witnesses did not have enough of a long term relationship with

Dieter and Kersten to give their testimony weight. This is

belied by the record which shows that the witnesses had longstanding

contacts with the couple and Judge Gold’s assessment of

the credibility of the witnesses. It is ridiculous to argue that

Dieter’s mother, girlfriend and brother did not have sufficient

contact to know him.

nonviolent; and that he assuredly did not "live off" Ms.

Kischnick. To those who knew the couple and had regular contact

with them, Mr. Riechmann’s guilt was inconceivable.

Judge Gold found that the testimony of the witnesses

presented at the evidentiary hearing would have been relevant at

penalty phase. The judge, however, did not apply their testimony

to the facts at guilt phase where the quality of the relationship

was made into an issue:

Consequently, trial counsel failed to unearth a large

amount of mitigating evidence as to the Defendant’s

character, family history and relationship with the victim,

which could have been presented at sentencing. At the post

conviction hearing, the Defendant presented the testimony of

fifteen (15) individuals from Germany who were willing and

able to testify at the Defendant’s trial had they been

contacted and asked to do so. The Court heard from

landladies and neighbors Monika and Marlene Seeger, friends

Martin and Ulrike Karpischek and Wolfgang Walitzky, and for

relationship partners Doris Dessauer and Doris Rindelaub.

All traveled from Germany at their own expense to speak for

the Defendant. The Court also received written statements

from many other individuals who would have made every effort

to attend the trial, but who were unable to attend the post

conviction hearing: friend and associate, Otmar Fritz,

friends Angelika Fritz, Sabine Plott, and Thomas Woehe;

neighbor Modersohn; the Defendant’s mother, Martha, and

brother, Hans-Henning, and trial witness Ernst Steffen.

These witnesses were relevant to motive at guilt phase. Judge

Solomon acknowledged that defense counsel was "remiss" in failing

to investigate, produce or present any favorable evidence

concerning the relationship between the key parties. This was

particularly true when it involved the medical and life insurance

policies that had been purchased in 1977, not just prior to the

Miami trip as the state suggested.

Even a state’s witness at Mr. Riechmann’s trial would have

provided exculpatory evidence had defense counsel simply asked.

The written statement of Ernst Steffen was admitted as evidence

in the evidentiary hearing and relied upon by Judge Gold as

credible. Steffen knew the couple since 1977, when Mr. Riechmann

first purchased health insurance for Ms. Kischnick. Counsel

never knew that Mr. Steffen testified reluctantly at the

insistence of the insurance company, which had a large financial

stake in Mr. Riechmann’s conviction.

I should state at the outset that I testified with great

reluctance. Indeed, I testified only at the insistence of the

insurance company with which I work and with an assurance of

compensation for my time and lost earnings. I did not want to

testify. It is my understanding that the Lorrach police, who

were working in close cooperation with the Florida prosecutors,

put considerable pressure on "higher ups" at the insurance

company to persuade me to testify.

The prosecuting authorities in both Florida and Germany made

it abundantly clear that they wanted Mr. Riechmann convicted at

all costs. One can only surmise what the prosecution of this

case cost the state of Florida. The Florida prosecutors went to

considerable lengths to indoctrinate their witnesses both as to

Dieter’s guilt as well as the brutality of the offense itself.

We were shown repulsive photographs and provided with details of

the state’s case in an obvious effort to obtain our commitment to

the state’s cause. Similarly, at this end, here in Germany, the

police sought to offset any reluctance on our part by suggesting

that we look upon the whole venture as some sort of "Florida

holiday."

Although it was never elicited at Mr. Riechmann’s trial it

is a fact that his conviction for murder involved a difference of

approximately 400,000 Deutschmark in insurance benefits that the

company would have been required to pay out. I would have

testified to this at the trial, but no one ever inquired of me in

this regard.(Def. Appendix 34; See also, Appendix 72)(Emphasis

added).

Steffen’s statements would have shown the jury the motivation for

the insurance company and the police to convict Mr. Riechmann of

this crime. Defense counsel failed to ask Steffen about his

relationship with the couple.

Similarly, I was asked no questions at trial concerning my

observations on the relationship between Mr. Riechmann and Ms.

Kischnick. In fact, they had, from everything I could tell, a

very good and loving relationship. They communicated openly and

with mutual respect. I never saw any tension or hostility

between them. Had it been anything otherwise, neither I nor my

wife would have associated with them or welcomed them in our home

as we did. For this reason, it was my impression that Kersten’s

participation in prostitution was entirely of her own volition.

***

In knowing Dieter Riechmann as I did, he was in no way a

brutal or backstabbing sort of person. Consequently, I would

have to say that I do not believe him capable of the violent

premeditated act he was charged with and convicted of.

Had Dieter’s lawyer inquired into these matters at trial, I

would have testified as stated herein. Because he asked me no

questions at all, the jury heard only "one side" of the picture,

without the benefit of any attempt from the defense side to

explain or expand the picture. Id.(emphasis added).

The manufactured motive created by the state could not be exposed

unless the 37 witness statements had been turned over, and unless

Carhart had done his homework. Defense counsel could not make an

informed decision to use these witnesses if he did not talk with

them or investigate their existence as Riechmann had suggested by

providing a list of potential witnesses.

Judge Gold erroneously found that defense counsel had made a

"reasonable tactical decision not to call other inmates who would

have impeached the testimony of Walter Smykowski" (PC-R. 6050-

52). He also found "no undisclosed deal with Walter Smykowski"

(PC-R.6064). This ruling was an abuse of discretion.

Walter Smykowski was an important prosecution witness at

trial as conceded by lead prosecutor, DiGregory:

A. He was an important witness, yes. I don’t know whether

he was crucial, but he was important. Perhaps –- yeah, he was a

significant witness, yes.

Q. Would you classify –-in fact, you have classified him as

crucial?

A. Crucial. That is right.

(PC-R. 5488).

DiGregory also recognized that "a reasonably effective defense

lawyer would have a duty to investigate Mr. Smykowski." Id. (I

would think so, yes.")

Smykowski described for the jury what were purported to be

incriminating actions and statements by Mr. Riechmann when the

two were cellmates in federal custody. Smykowski described Mr.

Riechmann’s alleged elation at becoming "a millionaire" as a

result of Kersten’s demise (R. 4105-08, 4131). See also, closing

argument of state,(R. 5088). He implied that Mr. Riechmann acted

guilty when asked "why he killed his girlfriend." According to

Smykowski, "his face was white like this wall." (R. 4112). See,

state’s closing argument (Would an innocent man...turn white in

the face?" (R. 5088). Smykowski also attributed to Mr. Riechmann

a statement that implied that the police had overlooked a

"fourth" gun.(R. 4109) See also, state’s closing argument at (R.

5085-86).

At the time of Mr. Riechmann’s incarceration with Smykowski,

he had not been charged with murder but only with federal

firearms charges. On November 15, 1987, at the time of these

alleged statements to Smykowski, Mr. Riechmann had signed over to

the Kischnick family any and all insurance proceeds. Mr.

Riechmann was not to receive one cent for Kersten’s death.

Defense counsel was asked whether he "at any time" sent an

investigator "to do any investigation of Mr. Smykowski." Counsel

recalled no such efforts (PC-R. 5684). Although Mr. Riechmann

had informed counsel of witnesses who could impeach Smykowski,

those individuals were never located or interviewed. Id.

Hans Lohse testified that he wrote a letter to defense

counsel offering himself as a witness as to Smykowski’s wellknown

lack of credibility. According to Lohse, "everybody" at

Metropolitan Correctional Center (MCC) "know the Russian guy as a

snitch" (PC-R. 5750). "He is just looking for short time." Id.

Smykowski had a reputation in the MCC community as "definitely

dishonest." Id. It was well known to everyone. Id. Smykowski was

not someone people felt they could trust. "He was always

recreating new stories –- and he always try to find out something

to cut his own time." Id. Everyone knew this except Carhart and

the jury. Lohse was never contacted by defense counsel.

Judge Gold incorrectly fou