UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

FRANCISCO FUSTER-ESCALONA

Petitioner,

Case No. 97-1369-CIV-LENARD

-vs-  MAGISTRATE JUDGE SORRENTINO

HARRY K. SINGLETARY,

Respondent.

______________________________

COMES NOW Petitioner, Francisco Fuster-Escalona, by and through counsel, and submits the following set of objections to the Report of the Magistrate Judge. The Magistrate Judge’s Report is 124 pages long and Mr. Fuster has only ten days to prepare and file his Objections. Thus, while he has tried to be comprehensive and specific about his objections and provides reasons for his objections whenever possible, he asks the Court to note that he objects to all of the Magistrate’s Conclusions of Law with two exceptions. First, Mr. Fuster agrees that his Petition was timely filed in this Court under the AEDPA. Second, Mr. Fuster agrees that all of the issues found by the Magistrate Judge to have been exhausted were indeed exhausted.

Many of Mr. Fuster’s objections herein, particularly to the Facts as found by the Magistrate Judge, concern omissions of facts, rather than simple errors of fact. Moreover, the initial statement of facts, which adopts the Respondent’s statement of facts whole-cloth, includes only facts that emerged at trial and leaves out critical information established by the defense, in post-conviction proceedings, and about the post-trial procedural history. (For example, Mr. Fuster was never accorded an evidentiary hearing in state post-conviction court, despite his request for such a hearing. SA 292) Other purported facts recounted by the Magistrate Judge are interwoven with her legal conclusions. While Mr. Fuster has tried to address these specifically, he also refers this Court to the factual statements accompanying his arguments of law, contained in his consolidated corrected amended petition and reply brief; his initial Motion requesting the right to conduct discovery and requesting funding for experts and an investigator, which was denied without prejudice by the Magistrate Judge; his Motion Modifying Discovery Requests and For an Evidentiary Hearing, which, although filed more than three years ago, was never decided by the Magistrate Judge; and his Motion to Strike the State’s Procedural Defense that his post-conviction claims were time-barred.

With regard to Mr. Fuster’s discovery motions and motion for an evidentiary hearing, the Magistrate Judge has not even listed these Motions as documents that she considered in preparing her Report. Exhibits were attached to both Motions, which supported Mr. Fuster’s petition and his contentions that he had been denied a full and fair fact-finding in state post-conviction proceedings. The Motions also explained why an evidentiary hearing in federal court was necessary to enable Mr. Fuster to demonstrate cause and prejudice to overcome certain procedural default issues. Extensive and detailed affidavits from three experts were attached to the Motion Modifying Discovery Requests and for an Evidentiary Hearing, proffering testimony that would be given at an evidentiary hearing and would have been given in state post-conviction court, had such a hearing been granted. One was from Maggie Bruck, Ph.D., one of the world’s foremost experts in the field of suggestive questioning and the reliability of children’s reports following suggestive questioning; one was from Richard Ofshe, Ph.E., a nationally recognized scholar in the field of hypnosis, false memory syndrome and techniques that have the capacity to alter someone’s memory; and one was from W.L.H. Whittington, a leading expert in the field of gonorrhea detection and testing. Attached to each of these affidavits in turn were the experts’ curriculum vitae and extensive exhibits upon which their opinions were based.

In her Report, the Magistrate Judge makes no reference to these proffers whatsoever and she provides no explanation for her failure to consider or rule on this Motion. Please see RMJ at 2. Because this Motion and the attached affidavits proffer important factual underpinnings for three of Mr. Fuster’s central claims from three nationally recognized authorities in their fields of expertise, he specifically asks this Court to review this Motion and its attachments in assessing whether to adopt the Magistrate Judge’s Report.

The Magistrate Judge has also failed to address Mr. Fuster’s argument that it was a total aberration that his Rule 3.850 Motion was deemed time-barred in the Florida state courts. Mr. Fuster submitted to this Court a Motion to Strike the state’s defense of a procedural bar to certain claims raised in state post-conviction proceedings, explaining both the Florida case law on this issue and attaching an affidavit from Beth Weitzner, the Chief Attorney of the Appellate Division of the Florida Public Defender’s Office. This issue is discussed in more detail below but essentially demonstrates that the finding of a time bar by the state court was entirely out-of-keeping with Florida practice, before or since, and should not be respected by this Court. Thus, Mr. Fuster asks this Court to consider the facts he has outlined and the arguments contained in his Motion to Strike the State’s Defense, including the Affidavit of Beth Weitzner.

In an attempt to give some structure to Mr. Fuster’s objections, he has divided his objections into sections.

Section One - overview of constitutional errors raised. This overview tries to capture the central facts that the Magistrate Judge omitted from her Report. Please note that citations to the facts recounted here are contained in specific argument of law sections in Mr. Fuster’s Corrected Amended Petition and Reply Brief (hereafter, "amended petition"), in his initial Motion for Discovery and for Funds for Experts and an Investigator, and in his Motion Modifying Discovery Requests and Requesting an Evidentiary Hearing and the exhibits attached to these documents. These omitted facts are critical to this Court’s determination of the legal issues in this case that they relate to directly. The omitted facts are also crucial because one of Mr. Fuster’s central claims is that the state’s experts in this case were allowed improperly to vouch for the credibility of each of the child complainants. As the Eleventh Circuit noted in Snowden v. Singletary, 135 F.3d 762 (11^th Cir. 1998), although a state court evidentiary ruling does not usually rise to the level of a due process violation, it will constitute fundamental unfairness if it is a significant factor such as where the remaining evidence of guilt was weak or unreliable.

Section Two - objections to the generalized statement of facts made by the Magistrate Judge.

Section Three - objections to the recounting of procedural history by the Magistrate Judge.

Section Four – objections to aspects of the Magistrate Judge’s use of the AEDPA

Section Five – (in subparts) objections to both the factual statements and the legal conclusions drawn in this Report for each of the specific claims addressed by the Magistrate Judge. The claim numbers track the numbers used by the Magistrate Judge and each claim includes both the objections based on the initial petition and the amended petition and reply to the greatest extent possible.

Section Six – objections to the recommendation of the Magistrate Judge that this be considered a mixed petition and that the amended petition be dismissed so that Mr. Fuster can exhaust state remedies.

At the time the investigation of this case began, no child had made an allegation of abuse against Mr. Fuster. The investigation appears to have started when one parent of a very young child attending Mrs. Fuster’s babysitting service asked his mother to kiss his body. The child said that Ileana (not Frank) did that. The child’s mother later testified at trial that her son used the word "body" to mean "penis." Thereafter, an investigator was sent to talk with some of the other parents of children who had attended the babysitting service.

Initial interviews with the children were not recorded or transcribed.

Thereafter, children were taken either to the Rape Treatment Center for questioning and physical examinations, including testing for sexually transmitted diseases, or to the police department to be questioned by state investigators, Laurie and Joseph Braga, or both. At these times, the children were questioned repeatedly and given anatomically detailed dolls with which to "demonstrate" what had happened to them. One child, Mr. Fuster’s son Noel, purportedly tested positive for gonorrhea of the throat. This information was circulated to most or all of the parents of children who had attended the babysitting service. Around the same time, investigators discovered that Mr. Fuster had a prior criminal record, and that he was on probation for a charge of sexual abuse committed against a teenage girl. He was arrested initially on the basis of violating the terms of his probation, which restricted his right to be around children in certain capacities.

Noel’s mother, Martha Goodman (a previous wife of Frank’s) did not trust the results of the gonorrhea testing to which Noel had been subjected so Martha arranged for Noel to be re-tested. This was done under the auspices of the state because Noel was a minor. (He was six years old at the time.) This second specimen was "lost" on its way down to the lab for testing. However, immediately after this mucus sample was collected, a doctor came in and administered to Noel a heavy dose of antibiotics to "cure" him of the gonorrhea. Thus, no subsequent testing could have confirmed or disconfirmed the initial positive test result. See Deposition of Martha Goodman, attached as an exhibit to the Motion for Discovery and Funds. (This was not brought out at trial.)

Investigators from the state prosecutor’s office began questioning children and talking to parents about the signs and symptoms of sexual abuse. Each child who eventually testified against Mr. Fuster was interviewed on multiple occasions, by the police, at the Rape Treatment Center, by state investigators, Laurie and Joseph Braga, and by private therapists and/or therapists brought in at the behest of the state, and/or Child Protection Team members. Despite their earlier denials of abuse and clear confusion over what was being asked them, some of these children eventually came to make reports accusing Frank and Ileana Fuster of many different sexually abusive and bizarre events. Once one child made a claim that something had happened, the Bragas often shared specific information about the claim with other children and with the children’s parents. The parents began meeting and discussing these matters among themselves, as well.

Some of the interviews conducted by the Bragas were videotaped. These tapes were introduced at trial by the defense. The transcripts of these sessions are replete with suggestive questioning practices at their worst, including offering rewards to children who provided incriminating evidence; telling children to imagine that they had seen the Fusters playing games in the nude; telling children that other children had reported seeing certain things happening; and much more. See Amended Petition and Affidavit of Maggie Bruck, Ph.D., attached to Motion Modifying Discovery Requests and an Evidentiary Hearing.

Noel Fuster was also interviewed extensively by the Bragas. He continued to deny having been abused by Frank or Ileana even when told that he had a disease that could only have been imparted to him by Frank putting his penis in Noel’s mouth. The Bragas insisted that Noel admit this had happened. As they testified at trial, prosecutors instructed them to be as forceful as necessary to get Noel to admit that he had been fellated by his father. The Bragas did not hold back in their questioning of this child. Finally, even after being told by Joseph Braga that he (Noel) could not deny this any longer, six-year-old Noel asked if it was possible that Mr. Fuster had done this to him while he was sleeping. Even when Noel was later questioned by Dr. Simon Miranda, he continues to talk in a confused manner about how his father did this to him and continues to say that it happened to him while he was sleeping. (All of these interviews were transcribed and are a part of the record.)

Ileana Fuster was also arrested and put in jail. She and Mr. Fuster were being jointly represented by two lawyers, Jeffrey Samek and Michael von Zamft. Ileana denied any wrongdoing on her part or on the part of Mr. Fuster. The state prosecutor’s office offered Ileana a deal to plead guilty and the two defense lawyers split the case to avoid a conflict of interests between the two clients.

Ileana continued to deny any wrongdoing by her or by Mr. Fuster for eleven months. However, approximately a month before Mr. Fuster’s trial was scheduled to begin, two psychologists operating under the trade name of Behavior Changers began meeting with Ileana on an almost daily basis. (The schedule of their meetings is reflected in their billing statements, which is attached as an exhibit to the Affidavit of Richard Ofshe, which in turn is attached to Mr. Fuster’s Motion Modifying Discovery Requests and an Evidenatiary Hearing.) It is at best ambiguous as to what the purpose of their meeting with Ileana was supposed to be. The state has asserted that they were brought in solely by Ileana’s defense lawyer because she needed psychological counseling. However, the billing records of the Behavior Changers reflect the fact that they met on occasion with then state attorney Janet Reno and that they viewed videotapes – presumably those of the children who made accusations against the Fusters. Additionally, court records indicate that the fees for the Behavior Changers’ services – amounting to thousands of dollars - were being paid by the court. Thus, it is unclear whether the court contemplated that the Behavior Changers were expected to serve the role of expert witnesses in some capacity. After several weeks of almost daily sessions with the Behavior Changers, Ileana Fuster pled guilty to acts of sexual abuse.

The Behavior Changers continued meeting with her during the course of Mr. Fuster’s trial. Ileana testified as a rebuttal witness for the state. Her testimony as to acts committed by Mr. Fuster was not consistent with any of the children’s accounts of abuse and portrayed him as forcing her to commit these acts along with him. Ileana was thereafter sentenced to a term of ten years and deported to her native Honduras after three years. (Mr. Fuster received a mandatory minimum sentence of 150 years.) Dr. Richard Ofshe, an expert in the methods of hypnosis and false memory syndrome, has submitted an affidavit discussing the unreliability of any statement obtained from Ileana following the methods used to elicit her testimony, which included hypnosis via extensive relaxation and guided imagery sessions. This affidavit is attached to Mr. Fuster’s Motion Modifying Discovery Requests and an Evidentiary Hearing.

At trial, several child witnesses were permitted (over strenuous defense objection) to testify via closed circuit television. The trial court never made any case-specific findings of fact as to the necessity of using this system.

At trial, the state’s expert testified that the testing for gonorrhea done on Noel was incapable of producing a false negative – that it was infallible if it showed up with a positive result. Nevertheless, several years after Mr. Fuster was convicted, the Centers for Disease Control published a report announcing that at least a third of samples that had been sent to them from laboratories around the country that had been identified as gonorrhea found in a child were, in fact, neither gonorrhea nor any other sexually transmitted disease. In other words, these samples had all been misidentified as gonorrhea. And all of these samples had been tested using the same method as had been used on Noel Fuster’s sample. The affidavit regarding the validity of the gonorrhea testing used on Noel Fuster attached to Mr. Fuster’s Motion Modifying Discovery Requests and an Evidentiary Hearing was submitted by W.L.H. Whittington, the primary author of the CDC report noted above and nationally recognized authority on gonorrhea detection and testing.

Several experts, one who had never met any of the children and several who had had extensive therapy sessions with the children, testified over objection about syndrome behavior of children who have been sexually abused. Each of the therapists testified over objection that the child he or she had counseled was entirely credible when providing reports of sexual abuse by Mr. Fuster. Many of these therapists were unaware that the children had previously been interviewed multiple times by the Bragas and the police and that the children had initially denied abuse.

Each of the therapists was also allowed to testify as to hearsay statements made by the children to them. Although these statements were purportedly admitted under the medical treatment exception, one of the witnesses provided no medical or psychological treatment or diagnosis, and it was never shown that any of these very young children understood that their statements were being used for the purpose of treatment or diagnosis. In fact, in the one interview of this set that was transcribed and a portion admitted at trial, Noel Fuster asks Dr. Simon Miranda (at the very end of the interview), whether he is a policeman. When Dr. Miranda says he is not, that he is a psychologist, Noel asks him if he is an attorney. No other showing was made that these statements had been made under circumstances demonstrating independent indicia of reliability.

At trial, many of the state’s witnesses were qualified as experts in the subject of child sex abuse. Each of them provided what purported to be scientific evidence regarding the "symptoms" exhibited by victims of such abuse, about the reporting patterns of sexually abused children, about how to detect whether a child is lying or programmed, and about the effects (or lack thereof) of suggestive questioning on children.

In the decade following Mr. Fuster’s conviction, there was an explosion of scientific studies on this subject and all of this testimony has been proved wrong. Uncontroverted research has now demonstrated that young children’s memories of events can be seriously tainted when they are subjected to suggestive questioning by adults, particularly adults who start out with a biased belief about what the child has experienced. Research has also demonstrated that children whose memories are so tainted will report false memories with an affect, demeanor, language choice and consistency that is indistinguishable – even to trained professionals – from a child reporting a true event. (This is a different situation from a child who has been pressured or programmed to memorize an account of an event.) Likewise, research has demonstrated that there are no linguistic markers or any other objective indices that will enable an observer to distinguish between the false report of a child who has been subjected to suggestive questioning and a child who is making a true report of an event. In other words, the child making the false report is wholly credible even though the content of the child’s report is completely unreliable. Research has also shown that the reporting patterns of sexually abused children explained at trial – initial silence, denial, admission, recantation – is the norm only when the abuser is a close family member. One of the world’s foremost experts and researchers in the area of suggestive questioning of children, Dr. Maggie Bruck, discusses all of these issues in her affidavit attached to Mr. Fuster’s Motion Modifying Discovery Requests and an Evidentiary Hearing.

Thus, Mr. Fuster’s conviction was obtained on the basis of evidence, every piece of which was unreliable. Yet the Supreme Court has repeatedly held that reliability of evidence is the very linchpin of due process. A conviction that rests on unreliable evidence and inadmissible testimony violates the fundamental fairness required by the Fifth and Fourteenth Amendments. See Snowden v. Singletary, supra.

Objections to Facts Recounted by the Magistrate Judge:

1. RMJ at 4. "Briefly, the parents of the victims testified as to behavioral changes they observed in their children after the children began attending the Fusters’ babysitting service. These included problems in sleeping, screaming nightmares, regression to babyish behavior, bed wetting, public defecation, articulated fears of monsters and of having their own or their parents’ heads cut off, belligerent and aggressive behavior, use of sexual profanity, and engaging in masturbation and overtly sexual behavior with their parents and other children."

Objections:

The Report omits the fact that the parents only began reporting these behavioral changes after Mr. Fuster and his wife had been arrested and accused of child sex abuse.

The specific testimony, as recounted in the state’s Response, included claims that some children had begun sexual behavior that included, for example, a child licking his sister’s vagina and pulling her head to his penis. Yet neither this parent, nor any of the others who reported odd sexual behaviors from their children, ever questioned their pediatricians about the conduct, took their children to therapists, or reported the conduct to child protective agencies. This raises serious questions as to whether these parents re-interpreted and exaggerated their children’s conduct only in light of their new belief that the children had been sexually molested.

While parents testified at trial that these behavior changes began after their children had attended the Country Walk daycare, the conduct was also only reported subsequent to the time the children began being questioned by investigators in highly suggestive and coercive interviews. During these investigative interviews, the investigators suggested to the children that they had been subjected to some highly sexual experiences and some terrifying experiences, all of which were initially introduced by the investigators and denied by the children. When a child being interviewed denied having had such an experience, the investigator frequently told the child to imagine that he or she had had the experience. Thus, the cause of these behavioral changes, whether exaggerated or not, may have been the interviewing itself.

2. RMJ at 3 – "The parents also described the onset of physical problems in the children such as sore throats, vaginal rashes, fevers and emotional asthma."

Objections:

This is an overly broad statement.

Only one child was reported to have been diagnosed with emotional asthma.

It bears noting that these physical symptoms are normal for children and more prevalent among children who attend daycare or school where they are exposed to other children.

With regard to Respondent’s statement of facts, Respondent indicates that one parent reported that her son had very red rashes around his penis "which did not look like a diaper rash." (T. 989-90). There was no evidence that this rash was anything caused by sexual abuse.

None of these children (i.e., the children about whom these parents were testifying) ever tested positive for any form of venereal disease.

3. RMJ at 3 – "Several of the children, who were 4 or 5 at the time of the incidents and a year older at the time of trial … described in articulate detail various occurrences at the babysitting service, including "bad games" taught to them by Frank Fuster where they would "suck on penises" and urinate and "ka-ka" on one another, and where the girls would have their private parts "pulled" by Fuster. Several children described a game where Fuster would hold a knife to their throats and threaten to cut their heads off, and they stated that all the children and both Fusters would not be wearing any clothing at these times."

Objections:

Four children testified over closed circuit television; one child testified in court; several other children testified in court only as to their names and ages.

All of these children were subjected to suggestive questioning many times before they testified.

Only one child, Justin Cousino, made most of these claims. For example, he was the only child who mentioned anything about anyone urinating or defecating on anyone else.

Only two children, Jennifer Litwin and Ashley Perez, mentioned the "cut off the head game." Neither child ever reported this spontaneously. Both made this claim only after they had been subjected to highly suggestive questioning during which the game was described to them.

No child described this game as having been played in the nude.

Some children did describe at trial a game that was played in the nude. However, no child had ever mentioned anything of this sort prior to being questioned by the Bragas, the investigators who interviewed the children for the state. During interviews with the Bragas, they often asked children, who had initially denied that such an event had occurred, to imagine that it had occurred and to tell them what they thought it would have been like if it had occurred. See, for example, Bruck Affidavit at 37-38.

4. RMJ at 7-8 "Cross-examination focused on how professionals can determine whether a child is telling the truth."

Objections –

Direct examination first focused on what these professionals observed about the children, what the children had said during the sessions, and concluded by having the professionals testify that these children were entirely credible.

5. RMJ at 8. "…the throat culture tested positive for the presence of gonorrhea."

Objections –

The pediatrician who testified claimed the throat culture had tested positive although she had not personally conducted the laboratory analysis, she mis-described the process used to test the throat specimen, and she stated that the test was incapable of producing a false positive result. (This later proved to be wrong.)

6. RMJ at 8 The Report refers to Laurie and Joseph Braga as psychologists.

Objections -

Neither Braga had a degree in psychology. Both Bragas were testifying as state investigators who had interviewed the children, not for purposes of diagnosis or treatment but as employees of the state attorney’s office.

7. RMJ at 9 The Report indicates that Dr. Lee Coleman testified that "as with all forms of forensic testimony by mental health experts, the techniques used were abusive and manipulative. T. 4224."

Objections –

Dr. Coleman testified that he was critical of all forms of forensic testimony by mental health experts because they testified as if they were able to provide precise diagnoses, just as medical experts did. He said he thought there was a vast difference between a diagnosis of a medical ailment that one could conduct a laboratory test for and have a basis for confirming objectively as compared to a mental health evaluation, where a diagnosis was based on clinical observations and had no objective grounding.

8. RMJ at 10 – The Report describes the testimony of defense expert, Dr. Lee Coleman.

Objections -

The Report neglects to mention that the cross-examination of Dr. Coleman included a substantial segment, designed to show that he had no support in the scientific community for any of the opinions he had expressed, and that probably no other expert in the country would agree with his opinions. 9/24/85, T. 173-174.

9. RMJ at 11 – The Report indicates that when Ileana Fuster testified, no bargain or promises had been made to her. T. 4869 – 70.

Objections –

This may have been true in the most literal sense. However, Ileana had already been offered a plea for seventeen years several months earlier, which she had rejected, and she was thereafter sentenced to a ten year sentence in a hearing in which Janet Reno personally appeared to make that request. Ileana was deported to Honduras after serving three years.

Mr. Fuster provides this supplementation to the Procedural History which contains information not detailed in the Magistrate Judge’s Report that are relevant to this Court’s determinations:

1. Mr. Fuster was indigent at the time of his direct appeal and was entitled to representation by a public defender for that appeal.

2. The Office of the Public Defender timely filed a Notice of Appeal on his behalf on October 31, 1985. State's App. 56

3. On July 25, 1986, Mr. Fuster's appeal was dismissed for failure to timely file a brief. State's App. 57.

4. On April 26, 1991, however, the Court vacated the Order that had previously dismissed the direct appeal, and reinstated Mr. Fuster's appeal. State’s App. 59.

5. The Office of the Public Defender, through an attorney who had previously worked for that office but who had relocated to Massachusetts, represented Mr. Fuster on direct appeal, filing a brief which raised the six issues listed above by the Magistrate Judge.

6. Following briefing by both parties, the Florida Court of Appeals for the Third District denied relief on all claims. Escalona v. State, 588 So. 2d 337 (Fla. App. 3 Dist. 1991)

(See briefs of parties, dated April 23, 1991, August 14, 1991 and September 25, 1991-State’s App. 60-167 - and Opinion of the Third District, at State’s App. 168.)

7. The majority opinion of that court, filed on November 12, 1991, stated simply, "Affirmed," followed by a citation to a Florida case, State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986). State's App. 168. DiGuilio is a one-page Florida case, which sets out a standard for determining whether error, when committed, is prejudicial.

8. One dissenting opinion was filed by Judge Hubbart. He noted his belief that the trial court had improperly permitted several children to testify via closed circuit television, without making necessary findings of fact that the children would have been traumatized by doing so, in contravention of the United States Supreme Court's ruling in Maryland v. Craig, 110 S.Ct 3157 (1990) and the Sixth Amendment's right to confrontation. State's App. 168. Accordingly, he would have overturned the judgment of convictions for each

count for which the child complainant who testified via CCTV was the alleged victim.

9. A mandate, denying relief, issued from the Florida Supreme Court on December 2, 1991. State's App. 169

10. On November 30, 1993, Mr. Fuster, represented by volunteer, pro bono counsel, filed a Rule 3.850 Motion in Florida state court. State's App. 174

11. In that Motion, Mr. Fuster raised the following four issues: a) that trial counsel had been ineffective for failing to take sufficient steps to defend Mr. Fuster; b) that evidence admitted at trial that Mr. Fuster's son had gonorrhea of the throat was highly controvertible, contrary to the assertion of state witnesses that it was uncontrovertible; c) that newly discovered evidence showed that children are highly susceptible to suggestive questioning such as the sort the child complainants in this case were subjected to and that even child care professionals are unable to distinguish true from false accounts of children whose memories have been so tainted; and d) that Iliana Fuster, Mr. Fuster's wife and co-defendant, had been subjected to coercive techniques by her own counsel and by the state attorneys, which produced false memories in her, rendering her testimony against Mr. Fuster unreliable and inadmissible.

12. Mr. Fuster filed supporting briefs with his Rule 3.850 Motion. In his Reply Brief,he explained to the court, inter alia, the need for an evidentiary hearing on these issues. State’s App. 265. He also attached various supporting documents to this Reply Brief, such as a sworn statement from N.G.’s mother, describing her attempt to have N.G. retested for gonorrhea, only to have the state lose the specimen before the testing was done. Id.

13. It appears from handwritten notes on the copy of Mr. Fuster’s Rule 33.850 Motion contained in the state’s appendix that the Florida postconviction court dismissed all of Mr. Fuster’s claims orally on November 29, 1994, except for the claim involving the unreliability of Iliana Fuster’s testimony. State’s App. 171. This appears to have been set down for an evidentiary hearing. Id.

14. The state postconviction court issued a written order, dated September 22, 1995, denying each of Mr. Fuster’s claims. State’s App. 332-333 His claim of ineffective assistance of counsel was adjudged time-barred.

15. Mr. Fuster was never granted an evidentiary hearing on his state post-conviction petition.

16. Mr. Fuster requested a rehearing, which was denied on December 20, 1995. State’s App. 338.

17. On April 23, 1997, Mr. Fuster filed a pro se federal petition requesting habeas corpus relief from this Court.

18. On May 9, 1997, this Court entered an Order to Show Cause on or before July 30, 1997, and Leave to Proceed In Forma Pauperis,

19. The state, after requesting and receiving an extension of time to respond, filed a 142 page Response, on August 12, 1997.

20. Also on August 12, 1997, the state filed a Motion to defer filing the state court trial transcripts. Mr. Fuster objected to the state’s motion to defer filing the transcript, in a response dated August 21, 1997. (Eventually, on November 2, 1998, Mr. Fuster filed a Motion to Compel the state to Produce for this Court the Record of the trial of this case. The state filed the record on November 17, 1998, rendering Mr. Fuster’s Motion moot.)

21. Thereafter, Mr. Fuster was able to obtain the pro bono services of a private attorney to help him litigate this federal habeas case. On September 30, 1997, Mr. Fuster requested permission to have counsel file an Amended Petition, a request for an evidentiary hearing, and a reply to the state’s response. This Court granted Mr. Fuster’s request.

22. The Amended Petition and Reply were filed on December 8, 1997, and replaced the following week with a Corrected Amended Petition and Reply Brief.

23. The original and Amended Federal Petitions raised and briefed each of the claims that had previously been raised on direct appeal and in the Rule 3.850 Motion. In its Arguments of Law on each point, the Amended Petition and Reply, Mr. Fuster also answered the arguments made in the state’s Response to his initial petition.

13. On January 8, 1998, Mr. Fuster filed a Citation of Supplemental Authority, citing Washington v. Doggett, Docket No. 15014-3-III (Wash. App. December 9, 1997).

14. The state filed a response to the Amended Petition on January 30, 1998. The state then filed a Motion to file a Supplemental Response to Mr. Fuster’s Amended Petition on February 24, 1998. The actual Supplemental Response was filed on the same date.

15. On April 16, 1998, Mr. Fuster filed a Citation of Supplemental Authority, citing Snowden v. Singletary, 135 F.3d 732 (11^th Cir., 1998)

16. On May 7, 1998, the state filed a Notice of Supplemental Authority, citing Neelley v. Nagle, __ F.3d __ (11^th Cir., 1998). Mr. Fuster filed a Response to this Notice of Supplemental Authority on May 21, 1998.

17. On April 29, 1998, Mr. Fuster filed in this Court a Consolidated Request for Leave to Take Discovery and for Funds with Which to Take Depositions and to Obtain Expert Opinions, and Memorandum of Law. Attached to this Motion were several exhibits, proposed interrogatories and requests for production and a proposed Order. The state filed a Response to this Motion on May 12, 1998, and Mr. Fuster filed a reply thereafter. On January 5, 1999, the Magistrate Judge denied the motion for leave to take discovery, noting that the denial was without prejudice to reconsideraton of the issue at a later stage in the proceedings, if necessary. The Magistrate Judge noted in her Order, inter alia, that Mr. Fuster’s discovery requests were premature at that time because respondent’s procedural defenses might eliminate some or all of Mr. Fuster’s claims, prior to a consideration of those claims on their merits. The Magistrate Judge also denied Mr. Fuster’s motion for funds with which to take depositions and to obtain expert opinions.

18. Mr. Fuster filed a Motion Modifying Discovery Requests and Requesting an Evidentiary Hearing on February 5, 1999. Attached to this Motion were affidavits from three expert witnesses, W. L. H. Whittington, an expert in gonorrhea, Maggie Bruck, an expert in the effects of suggestive questioning of children, and Richard Ofshe, an expert in misuse of influence procedures and creation of pseudo-memories by psychotherapists, along with other supporting documents.

19. The state filed an opposition to Mr. Fuster’s motion on March 23, 1999.

20. Mr. Fuster filed a reply to the state’s opposition on March 30, 1999.

21. On December 8,1999, Mr. Fuster filed a Motion to Strike the state’s defense, that he be barred from raising the claim of ineffective assistance of counsel as a result of that claim having been procedurally defaulted. Mr. Fuster attached several exhibits to this Motion, including an affidavit from Beth Weitzner, Chief of the Appellate Division of the Public Defender’s Office, explaining the practice of her Office and that of the Third District Court of Appeals in the mid- to late 1980’s and early 1990’s regarding appeals delayed by virtue of the backlog of cases being handled by the Public Defender’s Office and chronic understaffing of that Office. Ms. Weitzner explained in that affidavit that cases were routinely dismissed by the Third District when direct appeals briefs could not be completed within a reasonable time, and no mandate would issue as a consequence of these dismissal orders. Instead, the direct appeal would simply be reinstated by the court once the brief was ready, as was done in Mr. Fuster’s case. Ms. Weitzner further stated that she was aware of no other case where a rule 3.850 Motion was deemed untimely because it was filed more than two years from the date of the "dismissal-subject-to-reinstatement" order and called the ruling in Mr. Fuster’s case "an aberrant departure from well-established law."

22. The state opposed Mr. Fuster’s motion to strike the defense of procedural default and Mr. Fuster filed a reply to the state’s opposition on January 6, 2000.

23. On February 7, 2002, (following phone calls counsel had made in May, 2001 to the clerk of court and to the Magistrate Judge’s clerk), Mr. Fuster filed a Notice of Inquiry with the Magistrate Judge, asking if there was anything else he was expected to do before the Magistrate Judge would rule on his Motion Modifying Discovery Requests and Requesting an Evidentiary Hearing, inasmuch as three years had now passed since he had filed the Motion and the Magistrate Judge had not yet ruled on it.

Mr. Fuster objects to the particular application by the Magistrate Judge of those provisions of the AEDPA to his claims on the basis that the findings of the state court were neither contrary to, nor an unreasonable application of, Supreme Court case law at the time his conviction became final.

As to the claims raised on direct appeal, the entire majority decision of the court was the word "affirmed," followed by a citation to a case that dealt with the standard for harmless error. This opinion provides no clue as to the reasoning of the state court nor as to the federal case law standards that court may or may not have applied. In the absence of any articulated factual or legal reasoning, any finding that the state court’s decision was contrary to, or an unreasonable application of, Supreme Court precedent, is based on the purest invention.

As to the claims raised in state post-conviction proceedings, Mr. Fuster was denied a full and fair fact-finding. His claim of ineffective assistance of counsel was adjudged time-barred, even though it was not. Moreover, Mr. Fuster was entitled to an evidentiary hearing on all of the claims he raised in his Rule 3.850 Motion, but such a hearing was denied. Under the AEDPA, a federal court is not supposed to give any deference to the state court findings unless the petitioner received a full and fair factfinding in state court. Thus, the Magistrate Judge should never even have applied to these claims the "contrary to or unreasonable application of" standard.

(For a fuller treatment of these issues, please see Mr. Fuster’s Response to the state’s Citation of Supplemental Authority based on Neelley v. Nagle.)

In the sections below, Mr. Fuster addresses each of his specific claims. In an attempt to organize these materials, Mr. Fuster combines the claims from his initial petition with those of his amended petition and reply brief so that the Court will not have to look in two different places to address his objections. Thus, for each subject heading, Mr. Fuster lists both claim numbers and page numbers at which the Magistrate Judge’s Report treats these issues.

Mr. Fuster makes two preliminary comments regarding the amended petition and reply brief. First, the Magistrate Judge says at page 83 of her report that Mr. Fuster put new facts and legal arguments into the "Arguments of Law" section of the amended petition in a "transparent attempt to sidestep exhaustion requirements." Mr. Fuster was not trying to sidestep exhaustion requirements. He was granted permission to file an amended petition and reply to the state’s response. Thus, he was not only filing an amended petition but also trying to meet the defenses raised by the state.

One example of this was that the state argued that the state post-conviction court properly found that the evidence Mr. Fuster proffered in state court - that a report that came out three years after the trial from the Center for Disease Control showed that the gonorrhea testing done on his son, Noel, was a highly floawed test – did not constitute newly discovered evidence. The post-conviction court had not explained its reasoning in reaching that conclusion. Thus, in his amended petition and reply brief, Mr. Fuster argued that, if this evidence was not new evidence, because it had been available at the time of trial, then the evidence must also have been known to the state doctor who testified about it at trial. If that was so, then the state post-conviction court should have considered this a claim of constitutional violation because the state suborned perjury from this witness. Mr. Fuster also pointed out that, if this scientific evidence was known pre-trial, and the state had not supplied it to Mr. Fuster, this constituted a Brady violation. In any case, the state post-conviction court should have accorded Mr. Fuster an evidentiary hearing so that this matter could be properly litigated in state court.

Thus, Mr. Fuster was not trying to raise unexhausted claims but to explain why, no matter how one looked at the issue, a constitutional violation had been at the heart of the problem. This was true of each of the other Arguments of Law, which included both the initial arguments and replies to the state’s Response.

Second, the Magistrate Judge refers to the overview Mr. Fuster provided in the amended petition and reply and says that counsel has made "sometimes outlandish assertions which are clearly designed to elicit sympathy for Fuster and to call into question the motivations of those responsible for his prosecution." RMJ at 93. Some of the this information was drawn from a book written in 1986 by a reporter who was highly pro-prosecution and who claimed to have gotten her information from court records, prosecutor’s files and extensive interviews.

As for counsel’s assertion that this case came at a time when child sex abuse was a particularly prevalent topic of conversation, Mr. Fuster drew this information from several sources. First, this was itself a highly publicized case and it came during a period of time when the country was experiencing a sudden rash of large-scale child sex abuse cases, such as the McMartin case in California. Second, in 1982, Roland Summit, who later testified against Mr. Fuster, wrote an article about a syndrome he called, Child Sex Abuse Accommodation Syndrome. Summit, R, "Child Abuse Accommodation Syndrome," International Journal of Child Abuse and Neglect, 1982. Summit testified at trial that he had appeared frequently on television shows such as Phil Donahue and Good Morning America to discuss child sex abuse. (9/10/85 at 196 and 203) He had also written scripts on the subject for television shows such as Webster, Hotel, and Different Strokes. Id. at 204.

Summit testified that when a child reports something that seems impossible, we should not discount it because "most of us as adults aren’t well acquainted with the dynamics of child molesters. Child molesters do things that we don’t want to believe anyone would do." Id. at 211. He then says:

We need to unfortunately - we need to have our greatest index of suspicion for who we trust the most and strangers very rarely molest children in various surveys, seventy to eighty to ninety percent of those individuals who molest children are people known to the child.

…

Furthermore, the people you might seek as counselors in this process will generally provide reassurance because most of us have been trained not to believe their children are ordinarily molested …

Id. at 216-217 (emphasis added). When asked how common child sex abuse is, Summit testified, "Nobody knows … since most children who are victims have not been able to report it." Id. at 220. He concludes by saying that 20 to 30 percent of all people have been victimized. Id.

Mr. Fuster pointed all of this out in the context of showing that this case was an anachronism, having been tried at a point in time: a) before research existed to de-bunk many of the out-and-out myths that state experts testified to, and b) while the public was hearing these myths, not only in courtrooms but in newspaper and magazine articles, and over the airwaves.

Mr. Fuster objects to all of the legal conclusions reached by the Magistrate Judge in this section and refers the Court back to his Amended Petition and Reply Brief for explanation. Mr. Samek did, indeed, have divided loyalties at the time he tried this case.

Mr. Fuster objects to all of the legal conclusions reached by the Magistrate Judge in this section. Mr. Fuster also objects to the factual finding that this trial was not highly publicized. The Magistrate Judge appears to base that finding on the fact that Mr. Fuster submitted three newspaper articles about his case in support of this claim. At the time of trial, there was no perceived need to make an extensive proffer on this issue. Mr. Fuster’s probation revocation hearing, which occurred just before his trial, was reported nightly around Miami on both English and Spanish-speaking television stations. It was reported in every newspaper in the region and received national press. While it might have been better practice for defense counsel to provide the trial court with copies of every article and transcripts of the television coverage, there was little question but that the media was saturated with reports of this case for months prior to trial and leading right up to trial.

Had the Magistrate Judge granted Mr. Fuster an evidentiary hearing, he would have been able to put all of this evidence before the court.

Mr. Fuster objects to the legal conclusions reached by the Magistrate Judge.

Mr. Fuster agrees with findings of the Magistrate Judge that:

defense counsel objected to the use of profile evidence and expert testimony vouching for the credibility of prosecution witnesses and that this motion was denied. RMJ at 44 - 45.

"the state thereafter presented the testimony of several mental health experts who had treated certain of the children, and who all opined that those children were being truthful in describing incidents of sexual abuse." RMJ at 45.

a doctor, who had not treated any of the children involved in this case, provided profile testimony of child sexual abuse victims. RMJ at 45.

The Magistrate Judge finds:

in reliance on United States v. Azure, 801 F.2d 336 (8^th Cir. 1986), that "an expert could properly aid a jury in assessing the veracity of an alleged child sexual abuse victim." RMJ at 46

even if this testimony was improperly admitted, the error was harmless

the decision of the state court was neither contrary to controlling case law nor an unreasonable application of it.

with regard to exhaustion of the claim in the amended petition and reply, Mr. Fuster’s reference to Hadden v. State, 690 So. 2d 573 (Fla. 1997) makes this a mixed petition, the federal court cannot apply state law retroactively and there is a chance the state court might still entertain this issue.

. Mr. Fuster objects to these conclusions.

The holding in Azure (an Eighth Circuit case) was not, as the Report suggests, a finding that an expert can testify as to a child’s credibility in a sex abuse case. The Eighth Circuit described the following scenario in Azure, :

Dr. Robert ten Bensel was called to testify on behalf of the government. Dr. ten Bensel is a pediatrician and an expert on child abuse. Over pretrial objections by Azure, Dr. ten Bensel was allowed to testify that Wendy was believable and that he could "see no reason why she would not be telling the truth in this matter."

Azure at 340. The Eighth Circuit concluded that that this testimony usurped the exclusive function of the jury and that by:

putting his stamp of believability on Wendy's entire story, Dr. [*341] ten Bensel essentially told the jury that Wendy was truthful in saying that Azure was the person who sexually abused her. No reliable test for truthfulness exists and Dr. ten Bensel was not qualified to judge the truthfulness of that part of Wendy's story. The jury may well have relied on his opinion and "surrender[ed] their own common sense in weighing testimony. . . ." Barnard, 490 F.2d at 912.

Azure, at 340-341.

The Court in Azure also reviewed the question of the admissibility of expert opinion testimony on credibility in general and noted that

[i]n United States v. Barnard, 490 F.2d 907 (9th Cir. 1973), cert. denied, 416 U.S. 959, 40 L. Ed. 2d 310, 94 S. Ct. 1976 (1974), the defendants [**9] offered expert psychiatric testimony that a government witness was a sociopath who would lie in testifying. In upholding the trial court's rejection of this testimony, the court stated:

Competency is for the judge, not the jury. Credibility, however, is for the jury -- the jury is the lie detector in the courtroom . . . It is now suggested that psychiatrists and psychologists have more [expertise in weighing the veracity of a witness] than either judges or juries, and that their opinions can be of value to both judges and juries in determining [credibility]. Perhaps. The effect of receiving such testimony, however, may be two-fold: first, it may cause juries to surrender their own common sense in weighing testimony; second, it may produce a trial within a trial on what is a collateral but still an important matter.

Id. at 912. See also United States v. Awkard, 597 F.2d 667, 671 (9th Cir.), cert. denied, 444 U.S. 885, 62 L. Ed. 2d 116, 100 S. Ct. 179, and 444 U.S. 969, 100 S. Ct. 460, 62 L. Ed. 2d 383 (1979). The Ninth Circuit has further held that "under the Federal Rules, opinion testimony [**10] on credibility is limited to character; all other opinions on credibility are for the jurors themselves to form." Awkard, 597 F.2d at 671. See also United States v. Rosenberg, 108 F. Supp. 798, 806 (S.D.N.Y. 1952) ("It is hornbook law that the credibility of a witness and the weight to be given his testimony rests exclusively with the jury."), aff'd, 200 F.2d 666 (2d Cir. 1952).

The Tenth Circuit addressed this question in United States v. Samara, 643 F.2d 701 (10th Cir.), cert. denied, 454 U.S. 829, 70 L. Ed. 2d 104, 102 S. Ct. 122 (1981). In a tax evasion case, the court upheld the trial court's rejection of an offered summary of the evidence by a defense expert, stating that "an expert 'may not go so far as to usurp the exclusive function of the jury to weigh the evidence and determine credibility.'" Id. at 705 (quoting United States v. Ward, 169 F.2d 460, 462 (3d Cir. 1948)).

As to prejudice, it was upon a record that raised issues nearly identical to these that the Eleventh Circuit granted habeas relief in the case of Snowden v. Singletary, 135 F.3d 732 (11^th Cir., 1998):

A denial of fundamental fairness occurs whenever [**13] the improper evidence "is material in the sense of a crucial, critical, highly significant factor." Osborne v. Wainwright, 720 F.2d 1237, 1238 (11th Cir.1983). The evidence at issue in this petition is testimony by an expert witness (Dr. Miranda) that 99.5% of children tell the truth and that the expert, in his own experience with children, had not personally encountered an instance where a child had invented a lie about abuse. These statements were elicited, during [*738] the presentation of the State's case-in-chief, by prosecutor's questions which were linked to the expert's interviews with a specific child who testified at the trial …

That such evidence is improper, in both state and federal trials, can hardly be disputed. See, e.g., United States v. Azure, 801 F.2d 336, 340-41 (8th Cir.1986) (expert testimony about credibility of alleged-child-sexual-assault victim improperly invades province of jury, which "may well have relied on [the expert's] opinion and surrendered their own common sense in weighing testimony") (internal [**14] quotation marks and citation omitted); Tingle v. Florida, 536 So. 2d 202, 205 (Fla.1988) ("error for the state's witnesses to directly testify as to the truthfulness of the victim; .... the ultimate conclusion as to the victim's credibility always will rest with the jury").

Snowden at 738.

As in Snowden, the prosecution in Mr. Fuster’s case came back to this theme over and over again, elevating the admission of this evidence to a due process violation. This was not harmless error.

Moreover, there is absolutely no way to determine on the state court record whether the court applied the proper controlling case law, or applied the proper case law but did so unreasonably. The entire decision of the court was "affirmed," followed by a citation to a case reciting the standard for harmless error. This Court should decline to entertain the fantasy that it can tell what the state court used as controlling case law or how it applied the law on a record entirely silent on the issue.

The Magistrate Judge also suggests that Mr. Fuster has failed to exhaust state remedies because he identified for this Court the Hadden case, supra, in which the Florida Supreme Court held syndrome testimony about child sex abuse inadmissible and incapable of meeting the Frye test, subsequent to the denial of Mr. Fuster’s appeal. The primary importance of the Hadden case, though, is that it demonstrates that the Florida appellate court recognized the error in Mr. Fuster’s case of admitting this syndrome testimony but considered it harmless error in his case. Mr. Fuster also cited this case as further demonstration that the results reached in his case were a total anachronism – that, were his case tried today in Florida, the courts would recognize that this whole area of syndrome testimony had no scientific support and was inadmissible. This ties in directly and further supports the need for this Court to grant Mr. Fuster an evidentiary hearing on these matters.

The Report of the Magistrate Judge notes correctly that:

the state filed a Motion to permit certain children to testify by closed circuit television (CCTV)

the defense objected

the trial court said that it would make individualized findings as each child was called to testify

the trial court made no explicit case-specific findings

defense counsel argued that the absence of face-to-face confrontation violated the Sixth Amendment

this issue was raised on direct appeal.

The Magistrate Judge’s Report incorrectly states that:

"Affidavits from mental health experts as to each child were appended to this motion. RMJ at 47

"Affidavits of the child psychologists were filed as to each [child] witness. RMJ at 53.

Both of these statements are wrong. Five of the six affidavits were submitted by Joseph or Laurie Braga, who were working as investigators for the state and who testified that they were not acting in the capacity of therapists for any of the child complainants. Nor did either Braga hold a degree in psychology. The sixth affidavit was submitted by the Case Coordinator of the Gainesville Child Protection Team, an arm of the state attorney’s office, Linda Cooper, who testified later that her function had been to acquaint one of the children with court-room procedures.

The Magistrate Judge’s Report also omits three arguments made by defense counsel:

that the fact that the children would be testifying from a different location with Mr. Fuster not present with them would prejudice Mr. Fuster because the jury would assume from the absence of the children in the courtroom that they had "well-founded fears" of being in a room with Mr. Fuster (T. 9/4/85, p.120-123);

that the trial judge should require live evidence to be put on before making case-specific findings, rather than relying on affidavits, to protect Mr. Fuster’s Sixth Amendment right to cross-examine these witnesses. (T.9/9/85, p. 3-4);

that the affiants were not qualified as experts to provide these affidavits (T.9/9/85, p.4)

Defense counsel also renewed his objections each time a child was called to testify by CCTV but no individualized findings were made by the trial court.

The Magistrate Judge found that:

the trial court was not required to make case-specific findings because the system being used was two way, not one way, as it had been in Maryland v. Craig, 497 U.S. 836 (1990) RMJ at 53

even if case-specific findings had been necessary, such findings were implicitly made by the trial court, based on affidavits of child psychologists filed as to each witness

in the amended petition and reply brief, Mr. Fuster raised a new and unexhausted claim that use of CCTV destroyed his presumption of innocence.

Mr. Fuster objects to all of these legal conclusions:

As the Magistrate Judge acknowledges, in post-Craig federal cases, the Ninth and Tenth Circuits have required case-specific findings even when two-way closed circuit television was being used and it "cannot be discerned whether in the absence of [a statutory requirement that such findings be made], those courts would have found a constitutional violation …" RMJ at 53 n.17. Florida statutes also require such a finding when closed circuit television is being used even when the defendant is in the room with the child, where the proceeding is being shown to the jury over CCTV. The Florida cases decided both before and after Mr. Fuster’s direct appeal all find that these case-specific findings are necessary to protect the Sixth Amendment rights of the defendant.

Cases discussing the Sixth Amendment implications of the statute are also very clear that the trial judge must make explicit findings, that the trial judge not just adopt the testimony or affidavit of a witness, and that it is insufficient for the trial judge simply to track the language of the statute in his findings. See, e.g., Cumbie v. Singletary, 991 F.2d 715 (11^th Cir. 1993), cert. denied, 501 U.S. 1031 (1993); Hopkins v. State, 632 So.2d 1372 (1994)

Moreover, as defense counsel pointed out, allowing such a determination to be made without requiring the state to put up a live witness denied defense counsel the ability to cross-examine the affiants about the assertions they made in these affidavits. The fact that the affiants were all members of the state prosecutor’s office and that none of them, by their own later testimony, provided therapy to these children, made cross-examination of these witnesses particularly critical.

Finally, it is important to note that the Eleventh Circuit has been consistent in applying the harmless error analysis used in Coy v. Iowa and other Sixth Amendment cases. This requires that, upon a finding that the court failed to make case-specific findings, the court determine prejudice by considering what the case would have been like had none of the testimony in question been given at all. Cumbie v. Singletary, 991 F.2d 715 (11^th Cir. 1993), cert. denied, 501 U.S. 1031 (1993). In Mr. Fuster’s case, this means looking at the case without reference to any of the testimony of the children who testified over CCTV.

As for the conclusion that Mr. Fuster’s argument that his presumption of innocence was newly raised in this federal petition, Mr. Fuster notes that this was raised at trial when trial counsel objected that use of this procedure would give the jury the idea that the children had a "well-founded fear" of Mr. Fuster and was presented on direct appeal by citation to Maryland v. Craig and Coy v. Iowa in which the Supreme Court discussed the prejudice inherent in allowing a jury to think (without adequate reason) that the witness cannot bear to be in the same room as the defendant.

Mr. Fuster objects to this section of the Magistrate Judge’s Report in its entirety.

The Report states that:

"[p]rior to the testimony of each doctor as to the circumstances described to him or her by a child patient, it was established that the purpose of the physician’s interview with the child patient was for medical diagnosis and treatment." RMJ at 55.

The Report reached the legal conclusions that:

this claim was procedurally barred because adequate objections to this testimony were not made at trial;

even if the claim was not barred, the hearsay was properly admitted under the medical diagnosis exception to the hearsay rule;

the error was harmless

this issue as raised in the amended petition and reply be procedurally barred because, on a silent state record, federal courts should assume that a procedural bar was applied if raised and argued by the state. RMJ at 103..

Mr. Fuster objects to each of these findings.

First, Mr. Fuster objects to the characterization of these witnesses as physicians. Not one of them was a medical doctor. One of them (Linda Cooper) was neither a medical doctor nor held a Ph.D. Cooper also testified that she met with the child about whom she testified, not for purposes of medical treatment, but to introduce her to what court proceedings were like. This Court will note that, although five witnesses are listed, only four transcript cites follow their names in the Magistrate Judge’s Report at 55.

Second, Mr. Fuster believes this issue was adequately preserved at trial. In pretrial hearings, it appears that defense counsel objected to the use of these statements when the state filed a Motion, seeking to introduce them. As the state asked these questions during trial, defense counsel interposed objections, albeit non-specific ones. Given the court’s earlier determination of admissibility, coupled with the objections, this was sufficient to preserve these issues for appeal.

Third, even if it was not, the claim was not procedurally defaulted. It was clearly raised on direct appeal, both under state law and as a federal Sixth Amendment issue. See Direct Appeal brief of Appellant at 46. The Eleventh Circuit has said that "even when a defendant fails to object at the trial, the federal habeas corpus court will consider a constitutional issue if the defendant suggests it on direct appeal and the state appellate court does not expressly reject it on adequate and independent state law grounds. Harris v. Reed, 489 U.S. 255, 263, 109 S. Ct. 1038, 1043, 103 L. Ed. 2d 308 (1989)." Cumbie v. Singletary, 991 F.2d 715, 720 (11^th Cir. 1993), cert. denied, 501 U.S. 1031 (1993). The only finding made on direct appeal was that Mr. Fuster’s claims did not satisfy the harmless error standard.

Fourth, the hearsay statements made by the witnesses failed to satisfy the statute and Sixth Amendment concerns. Under Florida state law, in order for a statement to be admissible under §90.803(4), (statements made for purposes of diagnosis or treatment), there must be a showing "(a) that the statements were made for the purpose of diagnosis or treatment, and (b) that the individual making the statements knew the statements were being made for that purpose."

One of the witnesses who testified to this hearsay was Linda Cooper, a member of a Child Protection Team, not a doctor or therapist of any sort. Ms. Cooper testified that the purpose of her speaking to Brooke Toby, the child whose hearsay statements she repeated, was to educate Brooke about the court systems. (9/9/85, p. 69, 80.) She was not treating Brooke and she had no medical credentials whatsoever.

More importantly, the people here being treated ranged in age from 2 to 7 years old. These young children did not know their statements were being made for the purpose of diagnosis or treatment. (The "doctors" in question were not even medical doctors who might at least arguably be recognizable to a child as a doctor.) No transcripts were made of the sessions with these children except for Noel Fuster’s encounter with Dr. Simon Miranda, which was recorded, transcribed, and the first part of which was introduced by the state at trial.

Mr. Fuster also objects to the legal conclusion the Magistrate Judge draws in reliance on White v. Illinois, 502 U.S. 346, 355 n.8. The Magistrate Judge says that even if this claim is deemed to be cognizable on the merits, it still entitles him to no relief because "the admission of testimony pursuant to the medical treatment exception to the hearsay rule has withstood Sixth Amendment scrutiny. White v. Illinois, 502 U.S. 346, 355 n.8."

The White case involved a challenge to testimony admitted under the medical treatment exception on the basis that the state had not shown that the declarant was unavailable as a witness. The Supreme Court found this unconvincing. In discussing the validity of the medical treatment hearsay exception under Sixth Amendment analysis, the high court specifically identified the basis for its ensuring reliability as being the fact that the patient understood that false information provided to a treating physician could result in misdiagnosis and mistreatment. The Supreme Court said the following:

[A] statement made in the course of procuring medical services, where the declarant knows that a false statement may cause misdiagnosis or mistreatment, carries special guarantees of credibility that a trier of fact may not think replicated by courtroom testimony. They are thus materially different from the statements at issue in Roberts, where the out-of-court statements sought to be introduced were themselves made in the course of a judicial proceeding, and where there was consequently no threat of lost evidentiary value if the out-of-court statements were replaced with live testimony.
- - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -
n8 Indeed, it is this factor that has led us to conclude that "firmly rooted" exceptions carry sufficient indicia of reliability to satisfy the reliability requirement posed by the Confrontation Clause. See Idaho v. Wright, 497 U.S. 805, 817, 820-821, 111 L. Ed. 2d 638, 110 S. Ct. 3139 (1990); Bourjaily v. United States, 483 U.S. 171, 182-184, 97 L. Ed. 2d 144, 107 S. Ct. 2775 (1987). There can be no doubt that the two exceptions we consider in this case are "firmly rooted."…

White at 355, and 355 n.8.

The situation in Mr. Fuster’s case is directly analogous to that in Idaho v. Wright, 497 U.S. 805 (1990), where the hearsay that was admitted did not fall within a "firmly rooted" hearsay exception and the Supreme Court held that its admission violated the defendant’s Sixth Amendment rights because there had been no particularized showing of reliability. This is precisely what was argued on direct appeal. See Appellant’s Brief on Direct Appeal at 46.

In analyzing error under the Sixth Amendment, the Eleventh Circuit requires the court to consider the case as if these statements had not been made at all. Cumbie v. Singletary, 991 F.2d 715, 720 (11^th Cir. 1993), cert. denied, 501 U.S. 1031 (1993). This would have had a substantial effect on the outcome of the trial and would have required reversal.

Last, in discussing the claim in the amended petition and reply, the Magistrate Judge urges this Court to adopt her finding that this issue be procedurally barred because, on a silent state record, federal courts should assume that a procedural bar was applied if raised and argued by the state. The state court decision in this case, however, was not an affirmance on a silent record. The state court included a citation to a harmless error case, indicating thereby that it had considered these claims on the merits and that it was deciding these issues based on a lack of finding of adequate prejudice.

Mr. Fuster objects to every fact and legal conclusion stated in this part of the Report.

Objection to the Refusal to Consider this Claim Based on the State’s Application of a Time-Bar.

Mr. Fuster objects to the Magistrate Judge’s conclusion that this claim was properly time-barred by the state post-conviction court and should, therefore, not be considered by this Court.

Florida state court rules permit the timely filing of a Rule 3.850 Motion within two years of the date on which a mandate issues from the Florida Supreme Court, following the denial of a direct appeal.

Mr. Fuster’s direct appeal was initially dismissed by the Florida Court of Appeals because it had not been filed within a reasonable period of time. However, the court by the plain language of the order dismissed the case, subject to reinstatement, and no mandate issued from the court at that time.

Instead, on the same date on which Mr. Fuster’s direct appeal brief was filed in 1991, the Florida Court of Appeals reinstated Mr. Fuster’s appeal. The state did not oppose the reinstatement of the appeal at that time or argue in any fashion that Mr. Fuster was barred from consideration of the direct appeal as a result of his appeal having earlier been dismissed.

Mr. Fuster submitted an Affidavit of Beth C. Weitzner, Chief of the Appellate Section of the Public Defender’s Office, to the Magistrate Judge. Ms. Weitzner has held that position for a decade and a half. She makes it clear that dismissing appeals and then re-instating them was regular and accepted practice, designed to accommodate the case overload being handled by her office at that time. The reaction of the court, in immediately granting reinstatement, and of the state itself, in not opposing the reinstatement, are strong evidence that this was the widely-accepted practice at the time in Florida’s Third District Court of Appeals.

The Florida postconviction court’s dismissal of Mr. Fuster’s Rule 3.850 Motion as being untimely constituted a clear departure from Florida rules. First, Florida court rules permit the filing of a Rule 3.850 Motion within two years after the mandate issues upon conclusion of a defendant’s direct appeal, assuming a timely notice of appeal was filed, as it was in Mr. Fuster’s case. "The law is well-settled that once a timely notice of appeal has been filed, the two-year time limit to file a rule 3.850 motion does not begin to run until the appellate court issues its mandate." Cabrera v. State, 721 So. 2d 1190 (Fla. 2d DCA, 1998)."Until this Court issues its mandate, the trial court has no jurisdiction to consider a motion to vacate filed pursuant to Rule 3.850. Therefore, …, the two-year period for filing a motion pursuant to rule 3.850 commences when this Court issues mandate." Huff v. State, 569 So.2d 1247, 1250 (Fla. 1990). See also, Burr v. State, 518 So.2d 903, 904 (Fla., 1987). And, "a motion for postconviction relief must be filed within two years ‘after the judgment and sentence become final.' Fla.R.Crim.P. 3.850, supra. The Rule has been interpreted to mean that the judgment and sentence do not become final until the appellate process has been completed." Hilbert v. State, 540 So.2d 227 (Fla. 5^th DCA, 1989)(here, judging that date to be the date of the issuance of the mandate.); Green v. State, 676 So. 2d 32 (Fla 2d DCA, 1996)(Date of mandate issued on direct appeal, rather than earlier date of opinion, determined timeliness of motion for postconviction relief); Spaziano v. State, 570 So.2d 289 (1990); Ferris v. State, 575 So. 2d 303 (Fla. 4th DCA, 1991); Cook v. State, 596 So.2d 483 (Fla. 1st DCA, 1992); Gallo v. State, 571 So.2d 76 (Fla. 4th DCA, 1990); Miller v. State, 601 So.2d 604 (Fla. 4th DCA, 1992); Jones v. State, 602 So.2d 606 (Fla. 1st DCA, 1992).

The mandate in Mr. Fuster’s case issued on December 2, 1991. Mr. Fuster filed his Rule 3.850 Motion on November 30, 1993, within a two year period of the mandate’s issuance.

Second, Beth Weitzner testifies in her affidavit that, over the course of her twenty years in the Appellate Division, during at least twelve of which she served as the Chief of the Division, she has never been aware of a single other case in which a Rule 3.850 court applied a time bar based upon the date of a dismissal issued on a direct appeal, subject to reinstatment, as Mr. Fuster’s was.

Third, Respondent has not produced any Florida case citation or other evidence that supports a contrary view.

Mr. Fuster does not dispute the fact that federal court rules require that a federal court sitting in habeas corpus respect the rulings of the state court from which a case emanates, regarding matters of state procedural default.

However, federal decisional law tempers those rules to the limited extent that the bar will not be applied unless the state procedural rule is firmly established and constitutes a regularly followed state practice. See, e.g., Ford v. Georgia, 498 U.S. 411, 424-425, 111 S.Ct. 850, 857, 112 L.Ed.2d 935 (1991)(improper to decline federal review of claim where rule was unannounced at time of petitioner's trial and, therefore, not firmly established); James v. Kentucky, 466 U.S. 341, 348-351, 104 S.Ct. 1830, 80 L.Ed.2d 346 (1984)(only a "firmly established and regularly followed state practice" may be interposed to prevent subsequent federal review); Barr v. City of Columbia, 378 U.S. 146, 149, 84 S.Ct. 1734, 12 L.Ed.2d 766 (1964)(state procedural rules "not strictly or regularly followed" may not bar federal review); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 457-458, 78 S.Ct. 1163, 2 L.Ed.2d 1488 (1958)(even where, in retrospect, application of rule seems to form part of a consistent pattern, federal review is not barred where particular defendant could not be "deemed to have been apprised of its existence"); NAACP v. Alabama ex rel. Flowers, 377 U.S. 288, 297, 84 S.Ct. 1302, 12 L.Ed.2d 325 (1964)(procedural rule shall not bar federal review when state court had not previously applied it with such "pointless severity.") (See also, James v. Kentucky, 466 U.S. 341, 349, quoting, Davis v. Wechsler, 263 U.S. 22, 24 (1923):"Whatever springes the State may set for those who are endeavoring to assert rights that the State confers, the assertion of federal rights, when plainly and reasonably made, is not to be defeated under the name of local practice." (Holmes, J.))

Eleventh Circuit decisions are fully in accord, holding that,

When a state's "procedural default rule has been only sporadically invoked, the procedural default no longer bars consideration of the issue in federal court." Messer v. Florida, 834 F.2d 890, 893 (11^th Cir. 1987)(citation omitted).

Cochran v. Herring, 43 F.3d 1404, 1408 (11^th Cir. 1995). In Cochran, the procedural bar was not applied because the rule invoked was not consistently applied. Id. at 1409. See also, Hansbrough v. Latta, 11 F.3d 143, 145-146 (11^th Cir. 1994) and Spencer v. Kemp, 781 F.2d 1458, 1463, 1469-71 (11^th Cir. 1986)(en banc).

The application of the time bar in Mr. Fuster’s case by the Rule 3.850 court appears to have been a total aberration. As such, this Court should not refuse to consider Mr. Fuster’s claims on the merits by virtue of the Rule 3.850 court’s holding.

The Magistrate Judge has opined that Mr. Fuster’s claim that defense counsel failed to provide the effective assistance of counsel at trial was meritless, even if not time-barred. Mr. Fuster objects to this portion of the Report.

In his Memorandum in Support of Rule 3.850 Petition, Mr. Fuster asserted, inter alia, that defense counsel at trial had failed to "investigate sources of evidence helpful to him." Id. at 2 The post-conviction court appears never even to have considered holding an evidentiary hearing, despite his request for one, SA 292, because it considered the claim to be time-barred. Thus, Mr. Fuster has never had a full or fair fact-finding on this claim and this Court should not adopt the recommendation of the Magistrate Judge without according him a proper fact-finding proceeding on this point.

Mr. Fuster objects to every legal conclusion reached in this section of the Magistrate Judge’s Report.

The Report:

relies upon the finding from the state post-conviction court that evidence Mr. Fuster brought to its attention in a Rule 3.850 petition was not newly-discovered evidence and concludes that it did not qualify as newly-discovered because it was not sufficiently prejudicial;

states that this does not constitute newly discovered evidence in federal court because the new evidence is not tied to a constitutional deficiency;

finds this evidence would not likely have led to an acquittal, even of Fuster’s conviction of sexually abusing his son, the child who was reported to have gonorrhea of the throat

as to the amended petition and reply, finds that Mr. Fuster raised unexhausted issues.

At the time of trial, Dr. Judith Lederhandler was employed at the Rape Treatment Center of Jackson Memorial Hospital. Dr. Judith Lederhandler testified on behalf of the state that Mr. Fuster’s son, NG, had tested positive for gonorrhea of the throat. 9/4/85, 184. Dr. Lederhandler also testified that the type of test she had employed with NG never produced false positive results, only false negatives. 9/4/85, 195-96

Dr. Lederhandler said specifically:

Q. If the test comes back positive, it definitely means two things: one was that the test was done correctly?

A. Correct.

Q. And two, that the person really does absolutely have gonorrhea of the contaminated area?

A. Correct. There’s no way to get it on that plate unless you got it on that swab from some place… . [T]here is not such a thing as false positives. In other words, you cannot have the culture grow unless there is gonorrhea….

9/4/85, 195-196.

Dr. Dorothy Hicks, who also testified for the state, was also employed at the time of trial by the Rape Treatment Center at Jackson Memorial Hospital. Dr. Hicks testified that she believed the only way someone could contract gonorrhea of the throat was to have someone else ejaculate into his or her mouth. 9/5/85, 25-26.

At some point during the investigation of this case, at a time when Noel had steadfastly insisted that he had not been sexually abused by his father, Mr. Fuster, members of the prosecutors office informed Laurie and Joseph Braga that Noel had tested positive for gonorrhea of the throat. 9/27/85, 71. In his next interview with the child, Joseph Braga told 6 year old Noel that Braga did not believe Noel’s denials of abuse because they now had proof with the positive gonorrhea test that NG had been sexually abused. 9/27/85, 71.

The test findings were used by the Bragas to force Noel to "admit" that he had fellated his father. 9/20/85, 481; 9/20/85, 450. Even then, Noel asked them if it was possible that this happened to him while he was sleeping. 9/20/85, 481-492.

According to Laurie Braga, she and her husband were instructed by the state attorney’s office to talk to Noel and find out what happened and to be as leading as necessary. 9/27/85, 71.

Joseph Braga also testified that he had used the information about Noel’s gonorrhea to convince another child that Mr. Fuster had committed sexual abuse and that this other child should disclose, as well. 9/6/85, 224-225 Joseph Braga further testified that one of few ways he would have confirmation that a child had been sexually abused was if that child had venereal disease. 9/6/85, 157, 188, 209.

The state referred repeatedly to Noel’s positive test for gonorrhea and the fact that he could only have gotten it by fellating Mr. Fuster. 9/6/85, 195; 10/1/85, 14-15, 141-143; 148, 155. These last references came over and over again during closing arguments. The arguments were made in the context that, despite any questions the jury might otherwise entertain, the positive gonorrhea result was uncontrovertible evidence that Mr. Fuster had fellated Noel. Prosecutor Hogan told the jury that the only reason the other children did not test positive for the disease was that they had each been treated at different times with penicillin-based antibiotics. 10/1/85 at 141.

The evidence that Noel had tested positive for gonorrhea was wholly unreliable. The test used by Dr. Lederhandler was far from infallible; it had more than a 25% failure rate, even when it was being done flawlessly. Results analyzed by the Centers for Disease Control sent in from laboratories around the country showed a 33% misidentification rate. And this was the only physical evidence in the case. Dr. Lederhandler’s testimony left no doubt, let alone a reasonable doubt. It is curious at best how the Magistrate Judge could reach the conclusion that, had Dr. Lederhandler testified about the 25% false positive rate or the 33% misidentification rate, the result would probably not have been different.

This was nothing like the cases cited by the Magistrate Judge in which the newly-discovered evidence consisted of affidavits from witnesses who suddenly came forward to say that an event had happened differently from the way the trial evidence showed. In each of those cases, the evidence the defendant sought to introduce that could have been used only to impeach another witness, and was cumulative of other evidence that had already been used to impeach the witnesses. The evidence regarding Noel’s gonorrhea test, by contrast, was new scientific evidence emanating from the Centers for Disease Control that directly contradicted the scientific claim made by the state’s witness and opens up significant doubt as to whether Noel was sexually abused. Moreover, doubt about Noel having gonorrhea causes all of the remaining evidence to unravel.

This evidence, therefore, was of a totally different character than the evidence discussed in the array of Second Circuit and district court cases cited by the Magistrate Judge. RMJ at 66

This issue was raised in post-conviction proceedings with a citation to Jones v. State, 591 So.2d (Fla. 1991). This case adopts precisely the federal standard for newly-discovered evidence announced by the Magistrate Judge. Thus, this issue was fairly presented, using the correct federal standard, by Mr. Fuster in post-conviction proceedings. SA 184-185. Jones v. State cites the federal standards and cases as well. This has been deemed sufficient by the Eleventh Circuit Court of Appeals for purposes of raising a federal issue in state court. Snowden v. Singletary, 135 F.3d 732, 735-736.

As to the issue of the constitutional deficiency, the Supreme Court has held on countless occasions that it constitutes a due process violation for a defendant to be convicted on the basis of unreliable evidence. Manson v. Brathwaite, 432 U.S. 98, 97 S.Ct. 2243 (1976); United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926 (1967); Foster v. California, 394 U.S. 440, 89 S.Ct. 1127 (1969) ("suggestive elements" of identification procedure "so undermined the reliability of the eyewitness identification as to violate due process" though there was trial testimony corroborating the identification); Idaho v. Wright, 497 U.S. 805, 814, 110 S.Ct. 3139 (1990); Watkins v. Sowders, 449 U.S. 341, 101 S.Ct. 654 (1981). It is well-settled that the admission of evidence which renders a trial fundamentally unfair warrants a new trial. Donnelly v. DeChristoforo, 416 U.S. 637 (1974).

The state expert who conducted this test on Noel Fuster testified at trial not just that Noel had tested positive for gonorrhea of the throat, but that the test used was 100% accurate and could not have a false positive result. This was unreliable evidence of such a critical, non-cumulative and significant factor that its use at trial denied Mr. Fuster his right to fundamental fairness.

Mr. Fuster asks this Court to bear in mind that this was the only piece of physical evidence of abuse, it was used to force Noel into saying that he had been fellated by Mr. Fuster, the "information" was passed along to another child directly by the Bragas, it was conveyed to the parents of the children, and it undoubtedly had tremendous impact on them all.

Finally, Mr. Fuster notes that the Report indicates that his claim of destruction of evidence is a new and unexhausted claim. The destruction of evidence issue was raised in reply to the state’s Response to this claim which was that, even if the test results of the gonorrhea testing were not one hundred percent accurate, Mr. Fuster could not prove that the results were wrong in his case. Mr. Fuster was answering this assertion by noting that, had the state not destroyed the evidence by getting rid of the throat specimen after three days in the laboratory – highly inculpatory evidence that Mr. Fuster would now be unable to submit for independent review – Mr. Fuster would now be able to either prove or disprove his claim. It is not his fault, however, that he is unable to do so. The state’s actions have prevented him from making this proof.

As the affidavit of gonorrhea expert, W.L.H. Whittington, makes clear, it was a matter of general practice in 1984 and 1985 to preserve specimens used for detection of sexually transmitted diseases in child sex abuse cases at that time and preserving the specimen would have required no highly specialized equipment or technical skills. Such specimens can be preserved in freezers for decades. Please see Affidavit of W.L. Whittington, attached to Mr. Fuster’s Motion Modifying Discovery Requests and for an Evidentiary Hearing.

The Magistrate Judge states:

"counseling was being provided to Ileana Fuser through her own attorney" RMJ at 68

"there is no statement or indication of any kind that this counseling, or any other manner of psychological treatment or interrogation, was being used at the behest of either the prosecution or law enforcement authorities." RMJ at 68

defense counsel Samek knew Dinerstein was investigating because of the prior joint representation of Ileana and Frank." RMJ at 70

Reverend Tommy Watson went to Honduras in March 1995 and brought back a letter of retraction – RMJ at 72

in the Honduras deposition, Ileana did no more than revert to what had been her original position that she had no recollection of the events that had transpired. RMJ at 72

in the discussion of this claim from the amended petition, the Report states that this claim should have been presented on direct appeal, not in post-conviction proceedings. RMJ at 111-112.

Mr. Fuster objects to these findings.

Addressing these in reverse order, Mr. Fuster could not have raised this issue on direct appeal because it involves matters that were outside the trial record.

Reverend Watson traveled to Honduras in March, 1994, not 1995. This is significant because he went there within a couple of weeks of the time Ileana gave her statement to counsel. The Report also neglects to acknowledge that Tommy Watson’s church was paying Ileana a monthly stipend through a fund designated as the Honduras Fund. Ileana was the only recipient of money from this fund and the fund had only three contributors. Reverend Watson was one of them. The stipend stopped coming to Ileana as soon as she gave her statement to Mr. Fuster’s post-conviction counsel. It resumed after Ileana retracted this statement. See Deposition of Tommy Watson, attached to Motion for Discovery.

As for the finding that, in this Honduras deposition, Ileana had done no more than reverting to her previous claim that she had no recollection of the events that had transpired, this is a misleading statement and implies that the events actually had transpired. Prior to being seen by the Behavior Changers, Ileana never said she had no recollection of the abusive events she and Mr. Fuster were charged with – she said they had never happened. The Behavior Changers told her that she could not remember these events because they were too horrible for her conscious mind to accept – that she had repressed these memories. It was only from this point on that she, or anyone else, talked of her having "no recollection" of these events.

As for the Magistrate Judge’s statements that the Behavior Changers were brought in solely by Ileana’s own lawyer, the evidence is grayer than that by far. The bills for the Behavior Changers’ services were being paid by the trial court – bills that amounted to over ten thousand dollars. Moreover, these therapists consulted with Janet Reno, the state’s attorney, for six hours, and with her assistant, John Hogan, for three hours; they attended a seven and a half hour polygraph session with her. they attended her depositions, and that they viewed videotapes associated with the case for seven and a half hours. Please see Exhibit #6, attached to Affidavit of Richard Ofshe, which is in turn attached to Mr. Fuster’s Motion Modifying Discovery Requests and Requesting an Evidentiary Hearing. Mr. Fuster has sought to learn more about the therapy the Behavior Changers performed on Ileana and their relationship to state actors through discovery of the Behavior Changers’ records from "therapy," and/or through taking the psychologists’ depositions.

There is no evidence, moreover, in the record that Ileana ever requested this hypnotic "treatment," if that is truly what this was.

Thus, before denying this claim, the Magistrate Judge should have granted Mr. Fuster the discovery he requested: the right to depose the Behavior Changers and the right to inspect their records concerning Ileana’s treatment.

The Magistrate Judge also found that this claim was lacked merit because the coerced confession of a witness does not constitute a violation of a defendant’s constitutional rights. However, this misconceives the bulk of Mr. Fuster’s argument, which was that Ileana Fuster was hypnotized as the method of coercing her statement, and that because everything she said was hypnotically-induced, her testimony was unreliable and inadmissible. State and federal law are consistent in requiring either the exclusion of hypnotically-induced testimony of a state witness or its admission only under stringent safeguards.

The Report also suggests that this could not have been newly-discovered evidence because Mr. Samek, Mr. Fuster’s defense counsel, knew that Mr. Dinerstein was investigating the case on Mr. Von Zamft’s and Ileana’s behalf. But Mr. Dinerstein was working for Ileana’s defense team at that point and it would have been impermissible as a conflict of interest for Dinerstein to talk to Samek or for Samek to press Dinerstein about the nature of his investigation.

Mr. Fuster asks this Court to refuse to adopt the Magistrate Judge’s findings on this claim, and grant him discovery and an evidentiary hearing on these issues.

Mr. Fuster objects to this Section in its entirety.

The Report states:

this was not newly-discovered evidence because Mr. Fuster’s trial expert, Dr. Lee Coleman, testified fully to this evidence a trial;

"[Mr. Fuster] never argued in [state post-conviction] forum that the children’s testimony was tainted and should have been excluded. Thus, the latter issue is unexhausted in its entirety." RMJ at 96

the amended petition and reply raises new factual matters not put before the state post-conviction court.

This issue was fully raised in state post-conviction court and was fully described as a federal constitutional due process issue, contrary to the finding of the Magistrate Judge. SA 187 et seq.

The very title of the section of the Memorandum of Law in support of the Motion is,

New Evidence in the Form of Scientific Research Demonstrates Specific and Identifiable Methods used by Forensic Invesigators during the Questioning of Child Witnesses which Cause Impairment of Children’s Memories and Recall Abilities, Resulting in Reports from Children Which Reflect the Investigators’ Biases and Suggestions, rather Than the Actual Experiences of the Child.

SA 187.

The second paragraph of this section of the Memorandum states the following:

In other words, investigator conduct can render testimonial evidence elicited from child witnesses unreliable. As a result, it should be deemed inadmissible. The investigative questioning of the children in the instant case encompassed all of the tactics which have been found to corrupt children’s memories and recall abilities. For this reason, the testimony of the children elicited through the investigative process should not have been presented to the jury.

Id. In other words, the children’s memories were tainted and their testimony should have been excluded. Mr. Fuster presented precisely the same claims in state and federal court.

Mr. Fuster objects to the finding that the use of additional examples of suggestive questioning renders Mr. Fuster’s claim in the amended petition unexhausted. The transcripts of children’s interviews were all part of the trial record and counsel for the Rule 3.850 Motion specifically told the court in their brief that the examples used in the brief were simply examples – that the record was replete with them. Mr. Fuster also requested an evidentiary hearing at which to put on the testimony of an expert, who would have explained in far greater detail the specific bases for her opinions. SA 292 Mr. Fuster was denied such a hearing in state court.

In state post-conviction court, Mr. Fuster’s Memorandum of Law states the following: "The examples presented here were selected at random from the videotaped interviews of the children played in court during the trial. By no means is this presentation an exhaustive review of the interviews conducted in this case." The memorandum then describes the same suggestive interview techniques that were described in the federal petition. At the conclusion of each description of the research results, the memorandum states, "The following examples of _______ are from the Country Walk interviews" or "The following are some examples." SA 200 - 218.

This Memorandum also explains the research that shows that it is not possible to distinguish children who are reporting actual events from children whose reports are based on the suggestions of interviewers. Id. at 218-219.

There is nothing covered in Mr. Fuster’s Amended Federal Petition and Reply that was not addressed before the state post-conviction court.

Moreover, at the time Dr. Coleman testified, none of the research supporting his opinions existed. Likewise, none of the research that could be used to undermine the expert opinions of the many state experts yet existed.

On cross-examination, Dr. Coleman was forced to concede, for example, that no other mental health professional would agree with what he had said concerning the tapes of the Bragas or the children. (9/24/85, T. 226) He also had to concede that experts in the field of sexual abuse and child psychology had not studied interviewing techniques or the ways children could be manipulated by suggestive questioning. (9/24/85, T. 231.)

This can be seen nowhere more clearly than the prosecutors’ closing arguments. Prosecutor Casey first addresses this issue in his closing. He says, for example:

[Dr. Coleman] admitted there is no other expert across the country anywhere who agrees with his views. I suggest to you folks Dr. Coleman is out on the limb all by himself, just like Frank Fuster is in his testimony.

10/1/85 at 46.

Then Prosecutor Hogan directed his entire closing argument to the "scientific" evidence. See, for example, 10/1/85 at 112 – 114. Mr. Hogan tells the jury that Laurie Braga found that changing little words does not affect the child’s story. He then says, "Dr. Coleman doesn’t know of any study to the contrary," Id. at 114. There are now many studies to the contrary. With regard to the use of anatomically detailed dolls, Hogan says, "The dolls are accepted by every leading expert. [Coleman] admitted that …" Id. at 118. The dolls are no longer accepted by leading experts and there is a body of scientific literature now that explains how dangerous use of these dolls can be in interpreting whether a child has been abused. See Affidavit of Maggie Bruck.

Prosecutor Hogan then says, "The key here as with everything Dr. Coleman says is every other national expert simply disagrees with him. Dr, Stiles, Dr. Summit, Dr. Poliakoff, Dr. Goldman and both Drs. Braga just say its wrong. He simply doesn’t know what he’s talking about." Id. at 119 (emphasis added.)

As for the therapists’ expert opinions, prosecutor Hogan says, "Mr. Samek [the defense attorney] says, well, the therapists [who opined that the children’s memories hadn’t been tainted] haven’t seen the Bragas’ tapes. Again the therapist said it wasn’t necessary. They can tell. That’s part of their job is to determine whether a child is speaking from the heart of has been coached or manipulated or somehow told. How could they tell? They look at emotional reactions and that when these children speak of the sex abuse the reactions were just so violent. … The therapists knew. They had done work in this area. They had devoted their lives to this area." Id. at 130.

Yet research now shows what no one had demonstrated at the time of trial – that children with tainted memories do indeed have the same kinds of emotional reactions as children recounting true events, and child care experts, including psychologists are unable to distinguish the false reports from the true ones. See Affidavit of Maggie Bruck.

Prosecutor Hogan uses Dr. Coleman’s lack of support in the scientific community and the contrasting expertise of the state’s experts over and over throughout the first 37 pages of his closing argument.

The studies described in Bruck’s affidavit (and prior to that, in Mr. Fuster’s state post-conviction brief) make clear that the "science" relied upon by the state experts at Mr. Fuster’s trial was absolutely wrong. These studies did not exist at the time of Mr. Fuster’s trial. Thus, Dr. Coleman had virtually no research on which to premise his conclusions and the defense had no research basis upon which to attack the testimony of the state experts. Thus, this was clearly newly-discovered scientific evidence which should have rendered the testimony of these children, and the hearsay repetition of the children’s reports to their therapists, inadmissible. In the absence of this testimony, the jury is unlikely to have convicted Mr. Fuster.

Mr. Fuster objects to all of the recommendations, fact-findings and legal conclusions reached by the Magistrate Judge.

The Magistrate Judge recommends that this Court:

Find several claims herein are unexhausted;

Find that those claims have a chance of being cognizable in state court;

Dismiss the amended petition without prejudice as being a "mixed" petition according to the case law of Rose v. Lundy;

Hold that, after dismissal, Mr. Fuster not be unable to return to this Court because of the time strictures found in the AEDPA.

The claims raised herein are all exhausted. The Magistrate Judge chides counsel for, including new legal claims under the guise of Arguments of Law. But counsel was given permission by this Court to file an amended petition and reply to the state’s Response, which ran 142 pages long and contained all manner of argument, disputing Mr. Fuster’s claims. Mr. Fuster was entitled to meet those claims by making his best arguments. He was also entitled to articulate his earlier claims more cogently than he had in previous filings. It was no more devious for him to do so – or improper – than it was for the state to better articulate the arguments it had made in state court.

As for Mr. Fuster arguing facts that had not previously been put before the state post-conviction court, Mr. Fuster was never granted an evidentiary hearing in that court so he never had the opportunity for a full and fair fact-finding on the claims he had raised. It would be unfair for this Court to speculate that Mr. Fuster would not have brought to the post-conviction court’s attention all of the facts that he has currently used to support his petition. One of Mr. Fuster’s jobs in federal habeas is to demonstrate that he was denied a full and fair fact-finding in state court. He cannot do that unless he proffers the evidence he would have presented in state court, had he been given the opportunity. Some of these facts go also to show cause and prejudice, a showing Mr. Fuster had no reason to be making in state court.

Even if this Court agrees with the Report that there are unexhausted claims raised herein, there are certainly no remedies left for Mr. Fuster in state court. Even Respondent has asserted that. Any claim he raises now will be time-barred. Any petition he files now will be considered successive and the court will decline to review it. As the Eleventh Circuit said in Snowden, supra, there comes a time when the court needs to stop playing "procedural ping-pong." Thus, should this Court find that Mr. Fuster raised unexhausted claims, he asks that this Court apply the futility doctrine, rather than dismissing his petition.

Finally, Mr. Fuster asks this Court to consider that Rose v. Lundy was written long before the adoption of the AEDPA. Because previous habeas law did not contain the time limitations that the AEDPA contains, the Rose court was not faced with a situation in which dismissing a mixed petition without prejudice to allow a petitioner to exhaust state remedies actually served to bar federal review in district court and review by a federal Court of Appeals. As the Magistrate Judge acknowledges, prior to the AEDPA, dismissing a claim without prejudice was a benign act. It is no longer benign.

While the Magistrate Judge suggests that Mr. Fuster would be no worse off by returning to state court to exhaust (where even she believes his chances of being heard are slim) because she intends to deny all of his exhausted claims anyway, Mr. Fuster would indeed be worse off. He would be unable to appeal this Court’s ruling to the Eleventh Circuit if he were to be sent back to state court and time-barred from re-filing later in federal court.

Thus, as with all the others identified previously, Mr. Fuster objects to the Report’s recommendations on this issue and urges this Court to reject them.

Finally, Mr. Fuster notes, as he did earlier, that he does not understand what the Magistrate Judge would have this Court actually do with his claims. It appears that she may either be suggesting that this Court move forward to consideration of the claims as raised in the initial pro se petition while Mr. Fuster goes back to exhaust his other claims or that he forego all federal court consideration of all of his claims and go back and exhaust. Mr. Fuster therefore asks that, to the extent this Court adopt the Report’s Recommendations, this Court state explicitly what is to happen with Mr. Fuster’s claims.

Respectfully submitted, this __ day of March, 2002.

____________________________

Amy Gershenfeld Donnella,

Counsel or as authorized agent for

Francisco Fuster-Escalona

Amy Gershenfeld Donnella

Attorney at Law

310 Chamounix Road

St. Davids, PA 19087

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

FRANCISCO FUSTER-ESCALONA)

)

Petitioner, )

) Case No. 97-1369-CIV-LENARD

-vs- ) MAGISTRATE JUDGE SORRENTINO

)

HARRY K. SINGLETARY, )

)

Respondent. )

)

_________________________)

I hereby certify that I have this day served all of the parties to this action with the foregoing Petitioner’s Objections to the Magistrate Judge’s Report, by depositing copies thereof in the United States Mail, with proper postage affixed thereto, addressed to:

Richard L. Polin

Assistant Attorney General

Office of the Attorney General

Department of Legal Affairs

444 Brickell Avenue, Suite 950

Miami, Florida 33131

This ___ day of March, 2002.

__________________________________

Amy Gershenfeld Donnella

Attorney at Law

310 Chamounix Road

St. Davids, Pennsylvania 19087

(610) 341-9566

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