B. The 1989 death warrant.
The Governor of Florida signed
a death warrant against Frank Lee Smith on October 18, 1989,
scheduling the execution for January 16, 1990. Under Florida
law prior to signing of the death warrant, Mr. Smith had until
March 21, 1990, to file post-conviction relief. However, because
of the Governor's death warrant, Florida law required that Mr.
Smith's post-conviction motion be filed by November 17, 1989.
Accordingly on that date, Mr. Smith filed a motion for a new
trial in the circuit court.
On December 13, 1989, after a
brief oral argument, Judge Robert Tyson summarily denied all
relief without conducting an evidentiary hearing (PC-R. 326,
327). Mr. Smith had presented a Brady claim which was summarily
denied. This claim was premised in part upon the fact that in
1987, two years after Mr. Smith's conviction, the state attorney
was still investigating the case:
On Tuesday, February 24, 1987,
this writer, as requested by A.S.A. William Dimitrouleas, compared
the fingerprint standards of George Gregory Reddick to latent
lifts reference B.S.O. Case #85-4-5789.
All workable latents were previously
identified by this writer; however, this writer compared the
remaining latents of no value to Reddick's fingerprint standards,
and found negative results.
(Broward County Sheriff's Department
report)(PC-R. 353). Nothing could be much more exculpatory and
material -- and therefore disclosable -- than the prosecutor's
own doubts regarding a defendant's guilt.
Mr. Smith also alleged a Brady
violation because of the failure to disclose that the State had
not, as law enforcement officers testified, eliminated the other
suspects in the case but had simply abandoned the investigation
of those suspects. There were numerous serious suspects, including
Eddie Lee Mosley, who the police simply said "were eliminated
as suspects" without providing any reasons for their elimination.
Eddie Mosley, was, in fact, linked to over 30 sex crimes involving
females from the ages of 7-70. The police eventually "narrowed"
down the list of Mosley's victims to ten, but never revealed
this information to the defense. The most striking thing to note
in all of this is the amazing likeness of Mosley to the composite
photo developed by the State. Frank Lee Smith had never been
involved in any sex crimes and maintained his innocence of this
charge. Eddie Mosley fit the description given far better than
Frank Lee Smith. The State never disclosed how they eliminated
Mr. Mosley as a suspect.
On December 15, 1989, Mr. Smith
timely filed a motion for rehearing (PC-R. 331-33), and on December
18, 1989, a supplement to the motion for rehearing (PC-R. 334-53),
which were denied on December 20, 1989 (PC-R. 354-55).
On the night of December 20,
1989, Jeff Walsh, the investigator for Mr. Smith, was finally
able to locate Chiquita Lowe. Mr. Walsh showed her a picture
of Eddie Lee Mosley, and she immediately identified him as the
person who had run up to her car on the night of April 14, 1985.
The next morning Chiquita Lowe provided the following affidavit:
1. My name is Chiquita Lowe and
I live in Ft. Lauderdale, Florida. I am presently twenty-four
years old.
2. In 1985, I testified during
a murder trial. A little girl was raped and killed near my grandmother's
house. I saw the man in the street right before the crime happened.
3. In 1985, I told the police
detectives and the state attorney about how the man asked me
for money. I told them that I only saw the man for an instant
and that the only things I remembered were the droopy eye, scraggly
hair, pot marks on his face, and the ring on his finger.
4. The police detectives and
the attorney told me the man had a scar under his eye. I never
saw a scar and they knew that. The state attorney told me that
the man on trial had committed several crimes just like the one
that happened near my grandmother's house. The state attorney
also told me that the man on trial was dangerous, guilty of the
crime, and needed to be taken off the streets.
5. While I was in the courtroom
telling about what I saw, I knew that the man on trial was too
thin to be the same man I saw on the street. The police detectives
and the state attorney put so much pressure on me to testify
against the man on trial.
6. The state attorney told me
not to worry about my testimony because the man would be locked
up and electrocuted the following May. He also pointed out the
man's entire family to me. I was just feeling so pressured.
7. I have not forgotten about
the trial and every few months I picture the man's face in my
mind. I also remember how sorry I felt for the little girl.
8. On December 20, 1989, I was
shown a photo and asked if this was the man who approached me
and asked for fifty cents back in 1985. When I looked at the
picture everything came back to me. The photo is attached to
this affidavit. The man in the photo is without a doubt the man
I saw. I know that he is not the same man who was on trial for
the little girl's murder. I am so sorry that the wrong man is
in prison and sentenced to death. I had doubts in the courtroom
but I was under so much pressure. Also, the state attorney told
me about how dangerous the man was and how he needed to be locked
up forever.
9. I feel so bad that I did not
tell the state attorney about my doubts. I did not know what
to do. I felt a lot of pressure to say that the man on trial
was the man I saw, even though I had doubts, and the man's hair
did look the same.
10. I swear on my mother's grave
that the man in the photo is the man I saw on the street the
night when the little girl was raped and killed. I identified
the wrong man in the courtroom.
(Amendment to PC-R. 4-7).
On December 22, 1989, Mr. Smith
filed a motion for reconsideration of rehearing based on Chiquita
Lowe’s affidavit. After it was denied, Mr. Smith appealed
to the Florida Supreme Court on December 26, 1989 (PC-R. 356-57).
After hearing oral argument on January 9, 1989, the Florida Supreme
Court stayed the execution and subsequently issued an opinion
ordering an evidentiary hearing on the Chiquita Lowe affidavit
only. Relief was denied on all other issues.
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