July 3, 2001

Honorable Jeb Bush

Governor, State of Florida

The Capitol

Tallahassee, FL 32399-0001

Re: Exeuctive Order #01-24

Dear Governer Bush:

My office has now completed its duties as they pertain to Executive Order #01-24. Pursuant to the assignment, an investigation was conducted to determine whether Det. Richard Scheff, of the Broward County Sheriff’s Office committed perjury in the course of the trial and post conviction proceedings in the case of the State of Florida vs. Frank Lee Smith, in Broward County.

I have concluded that there is not evidence upon which to charge Det. Scheff with a crime. I have enclosed a memorandum prepared by Assistant State Attorney Lawrence Mirman which details this office’s investigation.

If you have any questions or desire additional information, please feel free to contact me.

Sincerely,

BRUCE H. COLTON

State Attorney

BHC/cp

Enclosure

cc: State Attorney Michael Satz

Date: July 3, 2001

INVESTIGATIVE REPORT

TO: State Attorney Bruce Colton, 19th Judicial Circuit

RE: The case of State of Florida v. Frank Lee Smith, an investigation into an allegation of perjury in a capital case by Broward Sheriff’s Office Detective Richard Scheff.

FROM: Lawrence Mirman, Attorney In Charge, Legal Affairs Division

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On January 24, 2001, Governor Jeb Bush issued an executive order assigning our office to investigate whether Broward Sheriff’s Detective Richard Scheff committed perjury in post conviction court hearings in the Frank Lee Smith case. The original case arose in Broward County, Florida. The Office of the State Attorney of the 17th Judicial Circuit handled all prior trial court litigation. Frank Lee Smith was tried and convicted for the April 14, 1985 brutal rape and murder of an eight-year-old girl, Shandra Whitehead. In post conviction proceedings beginning in the early 1990's an essential state witness recanted her 1985 trial testimony implicating Frank Lee Smith. While recanting her testimony against Frank Lee Smith, she implicated Eddie Lee Mosely as the real murderer. Very recently new DNA testing proved Mosely to be the real murderer. As will be explained in more detail herein, the allegation under investigation is that Detective Scheff committed perjury in those post conviction hearings when he attempted to discredit the recanting witness’s testimony. Detective Scheff and his partner, Detective Phillip Amabile, both testified in those post conviction proceedings that during their original investigation in the mid 1980's they showed a line-up containing Mosely’s picture to the recanting witness who failed to identify Mosely as the killer.

BASIC FACTS OF THE CASE AGAINST SMITH

The Florida Supreme Court has previously described the trial evidence against Smith as follows:

"The victim, an eight-year-old female, was raped, sodomized, and beaten severely by a blunt instrument in her home at approximately 11 p.m. on April 14, 1985. She later died from the injuries. A rock used in the beating was found outside the room where the beating occurred. Two witnesses identified (Smith) as a man they had encountered in the street outside the home approximately thirty minutes before the crime. One of the witnesses testified that (Smith) made a homosexual solicitation to him and, when rebuffed, stated he would have to masturbate. The mother of the victim identified (Smith) as a man she saw leaning into the window when she returned home at approximately 11:30 p.m. and discovered the crime. Apparently as part of a burglary, a television set had been moved to the window where (Smith) was seen. (Smith) was arrested based on a composite drawing and identification by one of the witnesses after he returned to the neighborhood attempting to sell a television set. He waived his rights to remain silent and to have a lawyer present and denied he committed the crimes or had been in the neighborhood for months. However, when falsely told that the victim's young brother had seen him commit the crimes, (Smith) replied that the brother could not have seen him because it was too dark. The identifications were strenuously challenged by the defense, but the jury returned guilty verdicts on first-degree murder, sexual battery by a person eighteen years of age or older on a person eleven years of age or younger, and burglary with an assault. The jury recommended death by a vote of twelve to zero. The trial judge imposed a death sentence on the murder count, a life sentence with a twenty-five year minimum mandatory on the sexual battery conviction, and life imprisonment on the burglary charge. All sentences were consecutive."

Some additional facts are noteworthy. The home that the victim lived in was an extremely dilapidated residence. The victim’s mother had been working a 3:00 p.m. to 11:00 p.m. shift on the day of the murder. She left her two children, Shandra (8) and Reginald (9), home alone. The perpetrator’s point of entry was strongly believed to be a window frame that contained no glass, leaving it permanently open. At trial, the home was described as a "target of opportunity for a burglar."

Detective Scheff and his partner Detective Amabile interrogated Smith. On Smith’s request, his interview was not taped. After Smith said "it was too dark," Scheff asked him how Smith knew the lights were out. Smith replied, "Didn’t you say the lights were out?" Scheff responded, "No, I have no idea whether the lights were on or off."

The two witnesses referred to as seeing a man on the street were Gerald Davis and Chiquita Lowe. Police first spoke to Gerald Davis. Davis advised them that he saw Chiquita Lowe come in contact with the same man on the street that had propositioned him. The man walked out from the yard of the McGriff house and flagged her down while she was driving a car. Lowe described him as delirious. He was wearing a blue windbreaker and a red and white striped shirt. He asked her for fifty cents. She told him, "Forget about it," and left. The man touched her car. He came within two feet of Lowe. Lowe described him as having "wild hair." The Broward Sheriff’s Office lifted fingerprints from the door of her car.

The space in time between the two witnesses, Davis and Lowe, encountering a man in the street and the victim’s mother arriving at her home was much more than "approximately thirty minutes." In fact, Lowe and Davis described seeing the man at about 10:00 p.m. or 10:30 p.m. The victim’s mother returned home around 11:50 p.m., possibly even later.

The exact time of the rape and murder was unknown. The victim’s aunt had checked on the children at about 10:40 p.m. Thus, the rape and murder were committed between 10:40 p.m. and 11:50 p.m, when the victim’s mother returned home.

Smith’s defense at trial was that he was falsely identified by the witnesses. Smith had alibi witnesses. However, Smith’s lawyer did not call them as witnesses in the guilt phase of his trial; rather, he called them in the penalty phase.

During the jury’s guilt phase deliberation, the jury requested to rehear the testimony of Chiquita Lowe. They deliberated for eight and one half hours prior to reaching their verdict of guilt.

THE PENALTY PHASE OF SMITH’S TRIAL

During the penalty phase of Smith’s trial, the jury learned that Smith was twice previously convicted of murder. At the age of thirteen, Smith stabbed a fourteen-year-old boy to death. Incredibly, he only spent eleven months in juvenile detention for this crime. A few years later, he shot and killed a man during a robbery and only spent fifteen years in prison before being released in 1981. He was on parole for that murder at the time of Shandra’s murder.

After the jury recommended the death sentence, the court held an allocution hearing. At this allocution hearing, Smith made a long, rambling statement in which he voiced many complaints. One of Smith’s observations was that,

"Defendant (himself) was connected to the crime but statement by the victim mother stating she saw a figure, a figure standing by the window, not going in or out, a figure, and the point must be established whether this figure was actually the figure that raped and killed the victim."

Smith was not executed. Rather, on January 30, 2000, he died from cancer in prison while his appeals were pending.

DNA EXCLUDES SMITH, MATCHES MOSELY

After Smith’s death, DNA testing of semen found in vaginal swabbings from Shandra Whitehead excluded Frank Lee Smith. The results matched Eddie Lee Mosely, another suspect in the case. This new DNA finding caused the Broward State Attorney’s Office to posthumously vacate Smith’s judgment and sentence.

Subsequent to the DNA testing and the vacation of Smith’s conviction, Smith’s lawyers, most notably Barry Scheck, Esq., alleged that lead Detective Richard Scheff committed perjury while testifying in post conviction hearings held in 1991 and 1998 regarding Smith’s case. Specifically, they alleged that during those hearings, Detective Scheff lied about the existence and use of a line-up containing Eddie Lee Mosely’s picture during the original investigation.

IDENTIFICATIONS OF SMITH THAT SUPPORTED HIS CONVICTION

To reiterate, Chiquita Lowe and Gerald Davis had seen a strange man on Shandra’s street over an hour before Shandra’s mother arrived home from work. On April 17, 1985, three days after the murder, Lowe and Davis worked with police to create a composite sketch of the man they had seen. Police showed the sketch to Dorothy McGriff, the victim’s mother. She had seen a dark skinned, six foot tall black male, wearing an orange tee shirt and blue jeans, with heavily muscled arms, shoulders and chest. Though she did not get a good look at the man’s face, she stated that the composite looked like the same man she saw at the open window of her home. At that moment police believed that the man whom Dorothy McGriff saw at the house and the man seen earlier on the street were one and the same.

Four days after the murder, while police were disseminating the composite sketch in the community, Chiquita Lowe called the police to report that she had just seen the same man at her home trying to sell a "hot" television whom she had seen on the street on the night of the murder. Her grandmother had answered the door. Her uncle Jack noticed that the man at the door looked like the man in the composite. He immediately advised Chiquita who then looked out of the back door and saw the man walking away. When he turned his head, she saw his face. When the police arrived, Lowe was visibly shaken. She was horrified because she felt that his appearance at her home was an implied threat against her as a witness. She later told detectives that the man at the door told her grandmother, "...(H)e’s gonna get that little yellow girl, talking about myself (Chiquita Lowe)." Police immediately took steps to track the man down in the neighborhood. They showed the composite to some men hanging out on the street playing dominoes. The men stated that the man in the composite was "Frank L." A policeman drove around Broward County looking for "Frank L." He took with him the composite drawing and one of the men on the street who was familiar with "Frank L." They found "Frank L" walking down the street. He was Frank Lee Smith. Smith was arrested for carrying a concealed knife. The policeman who arrested Smith felt that Smith matched the composite drawing.

Detective Scheff placed Smith’s photograph in a photo line-up. Lowe picked Smith out of the photo line up. In a taped, sworn pre-trial statement Scheff asked Lowe if she was certain about her identification of Frank Lee Smith. She stated that she was "positive." Scheff also asked her, "Did I point that photograph out to you or tell you to select it?" She answered, "No you did not." Scheff then asked, "And we haven’t threatened you in any way?" She responded, "No." Lowe identified Smith as both the man on the street on the night of the murder, and the man that came to her house four days later trying to sell a television set.

Smith’s attorney took a pre-trial sworn deposition of Lowe. The prosecutor was not present. Once again, Lowe clearly stated that the man at her house was the man she saw on the street on the night of the murder. Smith’s lawyer asked her, "Did you see the guy again after that (the night of the murder)?" She answered, "Yes...He came to my house trying to sell" a hot television. Lowe told Smith’s lawyer that she picked out Smith from a photo line-up as the man she saw. Smith’s lawyer asked Lowe what about Smith’s appearance resembled the man she saw. She responded, "Everything...the hair, the face, that eye, them holes in his face, all it looked just like him." Smith’s lawyer asked, "And, you say your pretty sure that’s the guy (Smith) you saw?" She answered, "Yes." Smith’s lawyer asked, "Did the police indicate to you, when they showed you those photographs, that man’s picture would be in those six?" She answered, "They just showed them to me and I just picked him out." Smith’s lawyer also asked her if the police seemed anxious to have her make an identification. Lowe stated that they did not.

Lowe also gave sworn testimony at the Grand Jury and at Smith’s trial that Frank Lee Smith was the person she saw both on the night of the murder, and four days later. At trial the prosecutor asked her, "What happened when (the detectives) brought you pictures?" She stated, "They said, look at these photographs. They say, if you see the man you seen that night on that day, just point him out and I point him out." The prosecutor then asked, "(Is there) any hesitation on your part in pointing out the man (Smith)?" She replied, "No." The prosecutor also asked, "Now did the police help you as to who you should pick out?" She answered, "No." She stated that there was "no doubt" in her mind that Frank Lee Smith was the man she saw both on the street on the night of the murder and at her home four days later.

Dorothy McGriff, mother of the victim, also picked Smith out of the photo line up. When she did, she let out a scream, poked at his picture, started to cry and stated, "That is the man that did my baby!" At trial, She identified Smith as the person she saw standing outside the open window. Her identification of Smith at trial was unequivocal and emotional. She testified at trial that no one suggested to her in any way whom she should pick out of the line-up. However, it was clear that her identification of Smith was based upon seeing his shoulders. She did not get a good look at the face of the man at the window. She saw the man’s face in a "flash."

Detectives also showed Gerald Davis the Smith photo line up. Though he picked Smith out of the photo line-up, Davis insisted upon a live line-up identification. Davis picked Smith out of the live line-up. He had only one slight reservation regarding the identification. He was uncomfortable with Smith’s height. Davis gave a sworn deposition and testified at trial. At trial, he identified Frank Lee Smith as the man he saw on the street on the night of the murder. The prosecutor asked Davis whether the police hinted or suggested to him whom he should identify from the photo line-up. Davis stated, "No, just showed them to me and, do any of these look like the guy you saw. I picked number two (Smith)." However, on cross examination Davis admitted that he felt pressured to make an identification. The defense attorney asked Davis:

Q: Didn’t you keep saying to the police, I don’t know if this is the guy and didn’t they keep saying to you, don’t feel that you are going to send an innocent man to jail in an effort to get you to stick to your story?

A: Yes.

However, on redirect examination the prosecutor asked Davis:

Q: What can you say about that photograph (Smith)?

A: He’s here and that is who I saw that night.

Davis’s testimony was less powerful than Lowe’s. In fact, the prosecutor asked the judge to call Davis as a "court witness." The prosecutor stated that he believed Davis was changing his testimony and consequently the prosecutor could not "vouch for his credibility."

Another witness, Jack Lampley, Chiquita Lowe’s uncle, also saw Smith at Lowe’s house trying to sell the television set. Lampley was familiar with Smith from the neighborhood. Lampley had seen Smith around town prior to Smith’s arrival at Lowe’s house. Lampley testified at trial and identified Smith. Lampley testified that the man he saw at the house had scars on his chest. To prove that Lampley was misidentifying Frank Lee Smith, Smith’s lawyer had Smith expose his chest to Lampley in view of the jury. Smith lowered his shirt just enough to expose the unscarred portion of his chest. The prosecutor insisted that Smith show the unexposed portion of his chest to the jury. The judge granted the request. When Smith took off his shirt, noticeable scars became evident to the jurors. The trial prosecutor was William Dimitrouleas, who is now a federal judge. I took a taped, sworn statement from him during this investigation. He advised me that he believes this moment was the turning point in an otherwise close case. It allowed him to argue to the jury that Frank Lee Smith was hiding something. In fact, in closing argument he repeatedly argued that "actions speak louder than words," meaning that Smith’s behavior in hiding his scar was compelling evidence of his guilt.

SUSPECTS DURING THE INVESTIGATION

The police considered several suspects during the investigation. One suspect was a man named James Freeman. Freeman had walked up to the crime scene and acted suspiciously. Detectives put Freeman’s picture in a photo line-up and showed it to Davis, Lowe and McGriff. They did not identify Freeman. Detective Scheff did not notate in his police reports showing the Freeman line-up to any of the witnesses.

An additional suspect in the case was Eddie Lee Mosely, a.k.a. Jessie Smith, described by detectives and others as a "notorious criminal" in that neighborhood. At the time of Shandra’s murder, Mosely’s modus operandi was sexual violence against adult prostitutes. Mosely was a cousin of Dorothy McGriff, the victim’s mother. The existence and use of a photo line-up including Mosely is the subject matter of the alleged perjurious testimony.

Another suspect was Edwin McGriff. Like Mosely, Edwin McGriff was also a cousin of the victim’s mother.

Prior to trial, Smith’s attorney took Scheff’s deposition. Smith’s lawyer’s purpose was to learn all that was done during the investigation. Smith’s lawyer asked about many topics including the crime scene, the interrogation of Smith, police contact with witnesses, what witnesses told the police, neighborhood canvassing, and to some extent other suspects in the case. Smith’s attorney never specifically asked Scheff about Eddie Lee Mosely. With regard to other suspects involved in the case, a few names were mentioned during the deposition including James Freeman and a man nicknamed "Gator mouth." At one point in the deposition Smith’s lawyer asked:

Q: Did you have, at this point in time, anybody in mind?

A: You mean as a suspect?

Q: Yes.

A: Oh, no.

Q: How about any relative of the deceased, uncles, cousins?

A: We had booked an individual by the name of Edwin McGriff, who is a cousin to Dorothy. As I had indicated earlier, we checked with - on the first night, for similar crimes. And, at that point in time we discovered that Edwin McGriff had been accused of a sexual battery of a minor black female child, and subsequently, we sat Dorothy McGriff down and explored the possibility with her that it might have been her cousin. She was quite emphatic that the person that she had seen was not her cousin and that she was being truthful. It was my feeling that she was.

One of the questions that Smith’s lawyer asked was the "catch all" question: "Is there anything else that’s happened in this case that we haven’t discussed?" Scheff did not mention the existence or use of a line-up including Eddie Lee Mosely.

Smith’s lawyer also deposed Scheff’s partner, Detective Amabile. Regarding other suspects, Smith’s lawyer asked the following questions:

Q: Is there anybody else that you came into contact with? Did you ever have any other person or persons under - did anybody ever come forward as a suspect in your mind prior to getting to Frank L., the Frank L. name?

A: We had a -- prior to Frank L., there was a subject that we had gotten some information on which was very, very sketchy information. I don’t know if that’s the right word to use, but someone had called and gave us the name of somebody who had come to the scene that night.

Q: Is that Freeman?

A: I believe that’s his name......

Later in the deposition, Smith’s attorney asked:

Q: Did you ever investigate any of the family members’ background or history on family members to see whether or not, in fact, some of them may have been involved in this; cousins, nephews, uncles?

A: That was originally thought of in the beginning when I first got there. In fact some of the questions that I asked Dorothy was past boyfriends, and so forth, and so on, and there was nobody recent. Her boyfriend that she had, they parted friends and they had not seen each other in months. There was no other male figures around that house.

By the time of trial, Smith’s lawyer knew that Eddie Lee Mosely was one of the suspects in the case. Detectives had unsuccessfully attempted to match the fingerprints of Eddie Lee Mosely and other suspects to fingerprints found on Chiquita Lowe’s car. The police generated a report to that effect on April 16, 1985. This report was available to Smith’s lawyer. At trial, Smith’s lawyer asked Scheff on cross examination the following series of questions relating to Mosely and other suspects:

Q. Was Eddie Lee Mosely ever a suspect in this case?

A. Eddie Lee Mosely was a suspect in this case along with Edwin McGriff. Initially when we first began investigating the case, (we) really had no specific direction to go in.

Q. How about Jessie Smith?

A. Jessie Smith is Eddie Lee Mosely under an alias name.

Q. Lee Greely, G-r-e-e-l-y Smith?

A. I don’t know.

Q. That’s all I have.

A. Spell it again?

Q. G-r-e-e-l-y. Doesn’t that ring a bell?

A. No.

Q. The man called Gator Mouth ever a suspect in this case?

A. Yes.

Q. The man that went by the name Gator Mouth?

A. Right.

Q. Was a guy by the name of Big John ever a suspect in this case?

A. Yes. I wouldn’t say they were suspects in the case. I would say they were people who were brought to our attention for one reason or another.

Q. How about Eddie Simmons, did you ever check with John Boucada of your department? He supposedly looks like Mr. Smith.

PROSECUTOR: I will object to counsel testifying and I’m objecting to the form of the question.

THE COURT: Objection sustained, may be rephrased.

Q. Did you ever investigate Eddie Smith?

A. Eddie Simmons?

Q. Simmons.

A. No, sir.

Q. Never had any contact with Detective Boucada regarding him?

A. No, sir.

Detective Scheff’s partner, Detective Phillip Amabile, also testified at the original

trial. Smith’s lawyer asked him about the number of line-ups used during the investigation. Smith’s lawyer first established that the police considered several suspects, including Eddie Lee Mosely. The defense attorney then asked Amabile:

Q: Were any of these other people other than Mr. Freeman in the photographic display or in the live line-up shown to any other witnesses?

A: No.

Approximately four years after the trial and conviction, Smith’s lawyers (CCR) filed a Motion for Post Conviction Relief. During the course of the ensuing litigation, Smith’s attorneys supplemented their motion with an affidavit of Chiquita Lowe. Defense Investigator Jeffrey Walsh obtained the affidavit from Lowe. In 1989, Walsh took a single photograph of Eddie Lee Mosely to show to Chiquita Lowe. The photograph was a 1981 picture of Mosely in which Mosely had a significantly full afro. In her affidavit, Lowe stated, inter alia, as follows:

"On December 10, 1989, I was shown a photo [of Eddie Lee Mosely] 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 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."

THE FIRST COURT HEARING REGARDING LOWE’S RECANTATION

In 1991, a circuit court judge in Broward County conducted an evidentiary hearing concerning Chiquita Lowe’s recantation. Lowe recanted her trial testimony in which she identified Frank Lee Smith as the man she saw on the street on the night of the murder. She testified that during the original investigation detectives showed her several line ups. She could not remember if she was able to pick anyone out. She could not remember picking out Frank Lee Smith at all, or testifying under oath to that effect on at least three prior occasions. She claimed that she never lied in the original trial. She testified that she felt like she was under pressure from detectives who kept telling her how dangerous the man was. She could not remember giving a deposition to Smith’s lawyer without the prosecutor or detectives being present. She had no explanation as to why she did not express her doubts to Smith’s lawyer in deposition. Regarding her trial testimony she stated that she felt pressure from the "community, friends, etc." Late in her testimony, she alleged that the detectives and the prosecutor told her:

"‘This the man who did it, you just have to say this is the man because he need to be off the street.’ And I was thinking about this little girl’s mama, that she’s going through this, what had happened with her daughter and everything. I was just confused."

When asked why she never told anyone of her doubts regarding her identification of Smith she stated, "I know she had got killed and that’s all that was going through my mind, the little girl got killed."

Lowe claimed that pressure from the detectives started after they arrested Smith. Yet, very significantly, Lowe never recanted the fact that Frank Lee Smith was in fact the man trying to sell the television at her house. Rather, she claimed he was not the man she saw on the street on the night of the murder. She never claimed to have expressed doubt to anyone involved in the case regarding whether the man she saw on the street was the same man who came to her house. During the original investigation she was consistently adamant that the two men were one and the same. She continually held to that assertion from the time she called the police to report the man’s presence at her door through the trial. The connection between the two incidents was created solely by Lowe and her relatives in her home who felt that the man at the door looked like the man in the composite. No one involved in the case, including the detectives, prosecutor, or Smith’s lawyer, would have known if she was unsure regarding that most crucial fact.

In her 1991 testimony, Lowe denied that Scheff ever showed her a picture of Eddie Lee Mosely. She stated that had he done so, she would have "known that it was him."

Based upon severe problems with her testimony the 1991 judge found Lowe’s recantation unworthy of belief. In his order, the judge wrote that, "Ms. Lowe’s testimony at the evidentiary hearing was extremely hesitant, slow and evasive. The Court finds that her memory at the evidentiary hearing was not very good as to many of the questions answered...and that she gave unequivocal, sworn testimony in front of the jury at the defendant’s (original) trial." The judge also noted that after the Smith trial Lowe had been convicted of a crime involving dishonesty.

At the 1991 hearing Detective Scheff testified that at the time of the original investigation he and his partner, Detective Amabile, showed a photo line-up display containing a photograph of Eddie Lee Mosely to Dorothy McGriff, Gerald Davis, and Chiquita Lowe. Scheff testified that he and Amabile first showed this line-up to the victim’s mother, Dorothy McGriff. She identified Mosely as her cousin. Scheff did not know of their relation prior to this mention of it. Dorothy McGriff was adamant that Mosely was not the man at the house. According to Scheff, he and Amabile then showed the line-up to Lowe and Davis. Neither identified Mosely. This testimony relating to the preparation and use of a photo line-up containing Mosely is the focus of this investigation. More specifically, the allegation under investigation is that in 1991 Scheff lied about the existence of the Mosely line-up during the initial investigation and that it was shown to Lowe. According to the allegation, Scheff lied about this fact to discount Lowe’s recantation claim that she was sure that Mosely, not Smith, was the person she saw. Scheff sought to establish that if Lowe were so sure that Mosely was the man she saw, she would have picked him out of a photo line-up at the time of the original investigation.

Though Scheff testified about the Mosely line-up at the 1991 hearing, he did not produce it in court. Neither the prosecutor nor Smith’s attorney asked him to bring it to court. Scheff testified that there were three separate lineups used in the investigation, one for Smith, Freeman and Mosely respectively. In cross examination, Smith’s lawyer did not ask Scheff to give any specific details about where and when the Mosely line-up was shown to Davis and Lowe.

Scheff testified that he remembered showing the Mosely line-up to the witnesses because he had just finished investigating Mosely for murdering women found raped and murdered in area churches, referred to as the "church murders." Scheff further testified that during the original investigation Mosely’s prints were unsuccessfully compared to those found on Lowe’s car. Examination revealed that they were Lowe’s fingerprints.

Smith’s lawyer confronted Scheff with his prior trial testimony (above) to the effect that the only photo line-ups used were of Smith and Freeman. Scheff admitted that his 1991 testimony was inconsistent with his prior testimony at the original trial. Smith’s lawyer established that Scheff never notated in his police reports the existence or use of the Mosely line-up. Smith’s lawyer asked Scheff when the Mosely line-up was shown to all three witnesses. Scheff stated, "I would say within a day (and a) half, two days, but I’m guessing at this point." There was no cross examination of Scheff regarding his degree of certainty that he showed the Mosely line-up not only to McGriff, but also to Davis and Lowe.

SCHEFF’S PARTNER ALSO TESTIFIES THAT THERE WAS A MOSELY LINE-UP

Detective Amabile, Scheff’s partner, also testified at the 1991 hearing. Amabile testified after Scheff testified. Amabile had been present in the courtroom during Scheff’s testimony. Amabile stated that he also remembered showing the Mosely line-up to Chiquita Lowe. However, he could only remember specific details about showing the line-up to Dorothy McGriff. He stated:

Q: Do you have any recollection of showing the Eddie Lee Mosely photo line-up to Chiquita Lowe?

A: Do I have a recollection of it?

Q: Yes.

A: Yes, because I believe after we left Dorothy McGriff is when we went to see Chiquita Lowe.

Q: Do you have any written documentation verifying that?

A: No, I didn’t do any paperwork in this case whatsoever.

Q: Do you know whether the trial testimony is consistent or inconsistent with that? Have you had a chance to review your trial testimony?

A: No.

Q: Do you recall exactly when it was in terms of a relationship to the incident occurring April 14th, how soon thereafter this photo line-up involving Eddie Lee Mosely would have been involved?

A: I don’t have any recollection.

Q: Would it have been before Frank Lee Smith?

A: (Nods yes)

Q: Do you recall -- Let me ask you -- back up. You indicated you were not responsible for doing any reports in this case?

A: Right.

Q: All the written reports would have been done by Detective Scheff?

A: Yes, as his roll as lead Detective.

Q: Do you recall Mr. Freeman being a suspect in this case?

A: I recall his name surfacing.

Q: How many names do you recall?

A: There were a number.

Q: Do you recall taking any steps besides the photo line-up of Eddie Lee Mosely to either rule him out as a suspect or find evidence against him?

A: Personally, myself, no. Again, Detective Scheff did.

THE VICTIM’S MOTHER RECALLED SEEING MOSELY’S PICTURE Significantly, in 1991 Dorothy McGriff testified that at the time of the original investigation Scheff and Amabile showed her a "group of photos" containing a picture of Eddie Lee Mosely. Though she was uncertain about whether the picture was contained in a book or a folder, she was completely certain that detectives showed her a picture of Mosely in a group of photos. She testified as follows:

Q: Okay. And on any of these occasions, did the police show you a picture of Eddie Lee Mosely?

A: Yes.

Q: Was it in a group or single photo, do you remember?

A: It was in a group.

Q: Okay. Do you -- How do you know it was Eddie Lee Mosely that they showed you?

A: Because he is my cousin.

Q: And you know him by sight?

A: Yes.

Q: When they showed you this picture of your cousin and wanted to know whether or not that was the man that you had seen that night your daughter was murdered, what did you tell the detectives?

A: I told them no, this was not my cousin.

Q: You know your cousin and you know it wasn’t the man you saw that night?

A: Yes.

Q: And do you recall which detectives were there when you told them that?

A: Yes.

Q: Who were they?

A: Detective Amabile and I can’t think of the other one by name.

Q: Could it be Detective Scheff?

A: Yes.

During the course of this investigation I took a sworn taped statement from Dorothy McGriff. I asked her whether she could remember whether the picture of Eddie Lee Mosely that she saw was in a photo line-up or a book of photos. At first she stated that it was in a photo line-up. However, during the course of the interview it became clear that she could not recall one way or the other.

Neither the State nor Smith’s lawyers called Gerald Davis as a witness at the 1991 hearing. However, the original trial transcript reveals that Davis testified that there were only two line-ups shown to him by the police during the original investigation.

The circuit court held a second evidentiary hearing in 1998 concerning the Lowe allegation. Once again, Lowe testified poorly. When confronted with her original trial testimony, she claimed that she could not remember testifying that there was "no doubt" in her mind that the man that came to her house trying to sell the television was the same man she saw on the street on the night of the murder. With regard to identifying Smith at trial, she claimed that her trial testimony was the product of pressure by the investigators and the prosecutor. However, when she was asked exactly how the prosecutor and investigators pressured her, she stated,

"Dimitrouleas (the prosecutor), he say we captured the person. He cannot harm you and he must be taken off the street. He cannot be on the street at all. And he said go in there, just tell the truth.....And the two detectives kept saying just go in there and tell the truth. And because Shandra mother and Gerald said this is the one, just go in there and tell the truth. And I went in there and just told the truth."

She repeatedly said that the detectives told her to "go in there and tell the truth." She could not adequately explain why she was so adamant about identifying Smith at the original trial. She stated,

"I was under a lot of pressure, other people in the neighborhood, what they was saying. Um, I was very hurt because I know how the mother feel, how the mama had been under a lot of stress and she was hurt."

She also stated,

"It hurted me because I know a little girl got killed, I know the family, and it just hurted me seriously, just hurted me. It hurts talking about it."

She stated that she only saw two line-ups during the original investigation, one for Smith and one for Freeman. The judge who heard Lowe’s testimony described it in his order as "utterly lacking credibility, rife with inconsistencies, and not credible."

SCHEFF PRODUCES THE LINE-UP IN COURT

At the 1998 hearing Scheff testified consistently with his 1991 testimony. In 1998, however, he actually produced the Mosely photo line-up in court. The State admitted it into evidence. Detective Scheff testified during this investigation that the photo line-up had been in his case file since the original investigation. During cross examination in 1998, Scheff admitted that he never noted the existence or use of the Mosely line-up in his handwritten notes detailing, by the half-hour, the events of his investigation. Also on cross examination, Smith’s lawyer asked Scheff why the notes were devoid of any mention of Mosely. He responded,

"Well, you are asking me, number one, to speculate. Number two, I think you’re incorrect in one respect in that there is a document which indicates that Eddie Lee Mosely’s fingerprints were compared to latents lifted from the scene of the crime and that the request was sent in on the 18th of April, 1985. So there was some indication that the Sheriff’s office had given some level of observation towards Eddie Lee Mosely..."

Smith’s lawyer asked whether Scheff’s notes detailed "every single thing" that he did in this investigation. Scheff responded,

"No, no. This was something I wrote up just to give me an idea of what I considered to be the major things, things of significance, and even that I probably left out one or two things that I should have included in that at the time I thought were insignificant."

Scheff acknowledged that, in addition to the three line-ups, Scheff had also shown Dorothy McGriff a police photograph book containing approximately one hundred and fifty photographs. This event was also not mentioned in Scheff’s detailed case notes.

Smith’s lawyer again confronted Scheff with his prior inconsistent trial testimony regarding the existence of the Mosely photo line up. Scheff again stated that, "(T)he answer (referring to the original trial testimony) was wrong." The prosecutor asked Scheff to explain why he gave incorrect testimony at trial. Smith’s lawyer objected on the basis that Scheff would be speculating. The prosecutor then asked the judge, "Judge, why don’t we let Chief Scheff answer the question?" The court sustained Smith’s lawyer’s objection; thus, Scheff was never allowed to answer the question during that hearing.

Also during the 1998 hearing, Scheff testified that:

"I did not consider...the issue of Mosely to be one of any importance at all. I based that on the fact that there was no link between Eddie Lee Mosely and the murder of Sandra Whitehead. Tenuous or not, there was no witness, there was nothing to suggest that Eddie Lee Mosely was a suspect in this case other than the fact that he was a notorious person in this area. And in an abundance of caution I decided to throw a lineup together with Eddie Lee Mosely’s picture on it. My witnesses didn’t pick him out and subsequently when I had an opportunity to view the composite compiled by the witnesses, it didn’t look anything like Eddie Lee Mosely or the Eddie Lee Mosely that I knew. And so I considered it a very trivial matter. Obviously its taken on an added importance over the years, but at that point in time it really didn’t seem to be relevant."

Regarding the decision to do a photo line-up with Mosely, Scheff further stated:

"I thought Eddie Lee Mosely was an individual that I was looking at as a suspect in two other cases that I subsequently arrested him on. He was notorious in the area and a decision was made simply to put his picture in a photo line-up and see how the witnesses reacted. This was prior to us getting the composite. I don’t think I would have even done that had we gotten the composite first because I would have looked at the composite and said that that’s not Eddie Lee Mosely or at least the Eddie Lee Mosely that I knew."

On cross examination, Scheff was asked, "Who made it (the Mosely line-up)?" He responded, "I don’t recall." Scheff admitted that in his pre-trial deposition he was asked to tell what he had done "day by day all day" regarding the investigation, yet he never mentioned the Mosely line-up.

In 1998, Dorothy McGriff again testified that during the original investigation detectives showed her a "group of photographs" which contained Eddie Lee Mosely’s picture. She was confused about the exact nature of the line-up that was shown to her. She admitted that specific details were difficult to recall due to the passage of time. However, in both 1991 and 1998 she was completely certain that Scheff and Amabile showed her a picture of Eddie Lee Mosely and that she reacted to it.

At the 1998 hearing, Smith’s lawyers objected to the admission of the Mosely line-up into evidence. In overruling the objection, the trial court considered McGriff’s recollection of the existence of a Mosely line-up to be a significant fact.

At the 1998 hearing, the prosecutor asked McGriff if she was covering for Eddie Lee Mosely because he was her cousin. McGriff testified that, "No, I wouldn’t protect him for nothing in the world, nothing. If he had did anything, I feel like he should pay for whatever he should do, whatever he did." Scheff also testified in 1998 that, "..(H)aving spent time with Dorothy McGriff it was my opinion that she would not have protected anybody if she believed that they were the person responsible for the murder of her child." This opinion was shared by many of the witnesses interviewed during the investigation who had contact with McGriff. During this investigation I took a taped, sworn statement from Dorothy McGriff. She adamantly stated that she would never cover for Eddie Lee Mosely if he had killed her child.

NEITHER AMABILE NOR DAVIS TESTIFIED IN 1998

Because he was fighting cancer, Detective Amabile did not testify in 1998.

As in 1991, neither the State nor Smith’s lawyers called Gerald Davis as a witness at the 1998 hearing.

FURTHER INVESTIGATION

INVESTIGATOR JEFF WALSH

State Attorney Investigator Richard McIlwain and I conducted a telephonic interview of former Capital Collateral Representative (CCR) Investigator Jeff Walsh who was in Tallahassee. In 1989, Walsh showed Chiquita Lowe a photograph of Eddie Lee Mosely. I asked Walsh why CCR focused exclusively on Mosely at that time. Walsh advised that they focused on Mosely because he had been "a suspect earlier in the case and they felt he had not been eliminated." He further advised that, for reasons that were not completely clear to him, Frank Lee Smith’s aunt had urged CCR to focus on Mosely as the real killer. Walsh added that CCR also focused on Mosely based on his modus operandi for other crimes and his similar physical characteristics to Smith.

Walsh further advised that Smith had repeatedly told his lawyers that he was never at the McGriff house.

I asked Walsh if he had any information about the Mosely line-up being fabricated. He advised that the form of the Mosely line-up looked different from the Freeman and Smith line-ups. Walsh also thought it significant that, to his knowledge, the Broward Sheriff’s Office never produced the Mosely line-up pursuant to a public records request prior to the 1991 hearing. However, Walsh conceded that at that time the process by which CCR obtained public records was not nearly as thorough as it is today. Walsh also advised that Scheff’s partner, Detective Amabile, looked nervous and uncomfortable when he testified in 1991 regarding the Mosely line-up.

I asked Walsh whether CCR ever contacted Gerald Davis and asked him about the Mosely line-up. After all, Davis was with Lowe when they saw the man on Shandra’s street. Scheff claimed to have shown the Mosely line-up to Davis, as well as Lowe and Dorothy McGriff. Walsh advised that he made contact with Davis prior to the 1991 evidentiary hearing. Walsh stated that Davis told him he was not interested in cooperating. Walsh alleged that Davis told him, "I don’t care if he is innocent, burn him."

OBTAINING THE LINE-UP AND TESTING IT

Early in the investigation I filed a motion with the Circuit Court in Broward County to obtain temporary possession of the questioned photo line-up. The court granted the request. Pursuant to court order, Investigator McIlwain took possession of the Mosely line-up for use in the investigation and for forensic evaluation. The line-up consisted of a manilla folder with six booking photos taped to it. Three photographs were attached to each side of the inside of the manilla folder. They were in triangulated form with two on top and one on the bottom. The pictures were booking photographs. In each of the photographs a black male held a board bearing the date on which the photograph was taken. All six dates appearing in the photographs predated the homicide investigation. Mosely’s photo was dated May 17, 1984, approximately a full year prior to the original homicide investigation. There was ink writing present on the back of some of the photographs.

Investigator McIlwain brought the line-up to Chief Criminalist Dan Nippes of the Indian River Crime Laboratory. Nippes examined the line-up folder under a 450 nanometer omnichrome light. His examination revealed that it had been compressed over a very long period of time. Because of the compression, two of the photographs left an impression on the folder on the opposite side of the line-up. Based upon his examination, Nippes believes that the line-up was likely to have been compressed in a case file for over a decade. He does not believe that compression for only three years would account for what he observed in his examination.

Investigator McIlwain conferred with experts from the Federal Bureau of Investigation Laboratory, in Washington, D.C. After discussing the case with the F.B.I., McIlwain contacted experts from the 3-M Corporation of St. Paul, Minnesota. 3-M experts agreed to assist our investigation by testing the scotch tape that attached the photographs to the folder to try and determine the date the tape was made, and consequently when the line-up was created. 3-M experts examined the line-up and determined that the tape was 3-M "Highland" tape, an inexpensive scotch tape. In the mid 1990's extremely minor changes were made to "Highland" 3-M tape, including that 3-M made the backing of the tape infinitesimally thinner. After thoroughly examining the tape, 3-M experts could not conclude with any degree of reasonable certainty when the tape was manufactured. Per my instructions, 3-M did not use all of the tape contained on the line-up during testing.

Investigator McIlwain contacted the Smead company. Smead produced the manilla folder on which the photographs were placed. McIlwain advised Smead of the batch numbers which were present on the folder. Officials at Smead advised that the folder was produced between the dates of 1978 and 1991.

Investigator McIlwain examined several other manilla folders used during the original homicide investigation which were contained in the Frank Lee Smith file at the Broward Sheriff’s Office. They possessed the identical batch number as the one appearing on the Eddie Lee Mosely line-up folder.

Investigator McIlwain sent the line-up for further testing to the United States Secret Service in Washington, D.C. The Secret Service tested three types of ink found on the back of the line-up photographs in an effort to determine when the ink was manufactured. The Secret Service determined that two of the three types of ink were consistent with being manufactured prior to 1989. The other type of ink was manufactured in 1982. The Secret Service could not draw any further conclusions regarding the ink.

Investigator McIlwain sent the line-up for further testing to the Eastman Kodak Company in Rochester, New York. Four of the photographs in the Mosely photo line-up were printed on Kodak photographic paper. Officials at Kodak determined that the paper was manufactured between the dates of May 1, 1972, and August 27, 1985.

Forensic evaluation of the line-up did not yield results inconsistent with the line-up’s existence and use during the Shandra Whitehead murder investigation. As provided by the court order granting temporary custody of the line-up, Investigator McIlwain will return the line-up to the custody of the clerk.

INTERVIEW WITH THE POST CONVICTION PROSECUTORS

I took a taped, sworn statement from prosecutor Paul Zacks. Zacks represented the State in the 1991 evidentiary hearing. He advised that Smith’s attorneys were already focused on Mosely as the real killer prior to the time they obtained and filed Chiquita Lowe’s recantation affidavit. In this regard, Zacks’ testimony corroborated the representations of Investigator Jeff Walsh. Zacks acknowledged that because he elicited testimony regarding the Mosely line-up in 1991, he would have had conversations with Scheff regarding the Mosely line-up in preparation for the 1991 hearing. However, he could not recall what was said. Zacks did recall meeting with Dorothy McGriff and discussing whether Eddie Lee Mosely could have been the killer. Dorothy McGriff advised him that Eddie Lee Mosely was not the man she saw at her house. Zacks remembered thinking to himself, "(T)his witness knows him, says it wasn’t him, . . . I’m in pretty good shape for the hearing."

I also took sworn statements from prosecutors Carolyn McCann and Joel Silvershein. They represented the State at the 1998 hearing. Silvershein recalled that prior to the 1998 hearing he asked Scheff to bring "whatever he had" to the hearing. Both attorneys stated that when they saw the line-up in 1998 it appeared frayed and worn, consistent with how one would expect an old line-up to appear.

Silvershein advised that part of Mosely’s modus operandi regarding sexual violence towards prostitutes was that he would approach them and ask, "Hey, you want to party." He would then sexually attack and kill the victim.

Both Silvershein and McCann noted that during the 1998 hearing Smith came to court without glasses and functioned normally. This was a significant fact. From the beginning of the case Smith claimed that his horrible eyesight required him to constantly wear glasses. The man whom Dorothy McGriff saw at the window of her home was not wearing glasses. Both prosecutors also advised that during the 1998 hearing Dorothy McGriff attacked Frank Lee Smith with her shoe out of anger for murdering her daughter. Prosecutor McCann advised that she recently confronted Dorothy McGriff with the news about the DNA matching Mosely, not Smith. McGriff was shocked. McGriff stated, "How could that be?"

INTERVIEW OF DOROTHY MCGRIFF

Subsequent to speaking with McCann and Silvershein, I took a taped, sworn statement from Dorothy McGriff. Even in the face of the DNA evidence she was adamant that the man she saw at her house was Frank Lee Smith, not Eddie Lee Mosely. I confronted her with the fact that she identified the man based upon his shoulders. She staunchly held to her belief that Eddie Lee Mosely was not the man at her house.

On my request, Investigator McIlwain undertook a search for witness Gerald Davis. McIlwain located Gerald Davis in Broward County at his place of work. During his efforts to locate Davis, McIlwain learned that Davis had a nickname of "Gigi." Davis was on felony probation for Grand Theft. He told us that his neighbors had warned him that we were looking for him. He further advised that he had recently read about all the new allegations surrounding the case in the newspaper. We took a sworn, taped statement. Davis stated that during the initial investigation no one pressured him to make an identification of Smith or anyone else. We showed Davis the Mosely line-up and asked him if the police had ever shown it to him. He did not recognize the line-up. However, he admitted that he had problems with his memory. We asked Davis if the man he saw on the street was pictured in the line-up. Davis did not identify Mosely from the line-up. To the contrary, even after we focused his attention on the picture of Mosely he continued to exclude Mosely as the man he saw on the street.

I asked Davis whether an investigator had ever contacted him after the trial. Contradicting Investigator Jeff Walsh’s representation, Davis insisted that he had never talked to anyone after the initial investigation. Also, much to my amazement, Davis insisted that he never testified in court at the murder trial. He stated that he gave pre-trial depositions, but never testified in court. Davis did in fact testify at trial.

INTERVIEW WITH THE TRIAL PROSECUTOR

I took a taped, sworn statement from Federal Judge William Dimitrouleas, who was the original trial prosecutor of Frank Lee Smith. Dimitrouleas did not remember Scheff mentioning the Mosely line-up to him prior to the original trial. He stated that it was possible that Scheff mentioned it, but he did not think that Scheff did so.

INTERVIEW OF RICHARD SCHEFF

I took a sworn statement from Richard Scheff at the office of his attorney in Fort Lauderdale. I showed Scheff the Mosely line-up that we retrieved from evidence. I asked him if it was the line-up that he prepared in 1985. He responded, "I assume so, I guess so."

I asked whether he recalled showing the Mosely line-up to the witnesses. Scheff referred to his specific recollection of Dorothy McGriff’s reaction.

Regarding the line-up Scheff stated, "There were two things I remember vividly, because they created an emotional reaction in me." The first was Dorothy McGriff pointing to Mosely in the line-up. At that instant Scheff thought that she was about to identify him as the murderer. Scheff’s "blood pressure rose." But then she said, "This is Eddie Lee, he’s my cousin, it’s not him." The second was when Scheff learned of Lowe’s recantation in the late 1980's. He remembered her as a very strong witness that led police to Smith in the first place. Scheff was concerned that someone had "tampered with her" as a witness.

Scheff did not recant his testimony that he showed the line-up to Lowe and Davis. However, he admitted that he had no specific recollection regarding the details surrounding showing them the line-up. His memory of showing the line-up to all the witnesses was in part based upon his expectations of how he would have conducted the investigation. He stated that it was his routine to show all the witnesses the line-up, not just one witness. He stated:

"I...I...I cannot honestly at this point, it’s ...it’s almost sixteen years, tell you th...what...no, I can’t, I can’t....Okay, I’m sorry, I’m just.......I cannot honestly say that I have some distinct personal clear memory that I showed this line-up to Chiquita Lowe or Gerald Davis, but what I can say is this...Number one, if we took a line-up out to our witnesses we showed everybody the line-up... Number two, I remember feeling and my emotional reaction back in ‘87 or ‘88, whenever it was when I’m told that Chiquita Lowe has identified Eddie Lee Mosely, that really got me upset....and concerned....I kind of flipped out about that and said ‘Hey look she can’t, I mean I showed her a picture of Mosely, what is she talking about?’ And so I mean, that’s how I know I showed her the picture of Mosely."

At a later point in the interview Scheff stated,

"Oh let me tell you, that line-up existed, it was shown, I don’t have a question about that. I may not have a recollection that I showed it to ... to ... to ... to..Gerald Davis or Chiquita Lowe.... But I’ll guarantee you dollars to doughnuts they...they...they saw it. It was probably, it was like the first thing we ended up doing....we ran out and took a shot on him."

Scheff’s belief that he showed the line-up to Lowe and Davis seemed to be based in part upon a derivative memory of showing the line-up to Dorothy McGriff and in part upon an expectation of how he "would have" conducted the investigation. I asked Scheff whether he may have completely dismissed Mosely as a suspect after Dorothy McGriff excluded him and, therefore, never showed the line-up to Lowe and Davis. I asked:

Q: "Is it possible that because she (the mother) looks at Mosely and says that’s my cousin, it’s not him, and that the line-up’s purpose is for Mosely, not the other people in there that you didn’t take it to Lowe and Davis? You may think you did, you know five years later, but you actually didn’t because she’s ruled out the suspect?"

A: I can’t dismiss the possibility, but it certainly wouldn’t have been..um...good procedure or practice on our part. I wasn’t sure at that point..(if the mother and Lowe and Davis had seen the same person).. So, if mom say’s it’s not him, that’s all well and good but now I need to find out if the kids (Lowe and Davis saw Mosely).....I was trying to make a determination on whether or not there were two people..two men I was looking for...."

I asked Scheff to explain his trial testimony wherein he stated that there were only two line-ups used in the case, one for Smith and one for Freeman. He stated:

"I was unaware, until sometime before 1991 when Paul Zacks (prosecutor) brought it to my attention, that I had ever been asked a question about a line-up of Mosely to...to anybody. Now one thing that...that..that’s clear is, I don’t think there’s....there’s any controversy about whether or not I showed the line-up of Eddie Mosely to Dorothy McGriff. So clearly my testimony in ‘86 is wrong because the question wasn’t specific to Chiquita Lowe, it was a generalized question. I honestly believe that I just lost my focus and lost my attention...my attention and...and just didn’t realize who all of the names or of all the people, I mean as I recall there was a...there was...there was the...the...dialogue back and forth between Billy Dimitrouleas and the judge and there was just a whole bunch...(referring to the objection)."

Later in the interview, I confronted Scheff with the fact that not only Lowe said she was never shown the Mosely line-up, but that recently Gerald Davis had done the same. I asked Scheff:

Q: What do you think about that?

A: I think he (Davis) is wrong.

Q: Okay. Explain. I mean I know you’ve talked about it before, but explain.

A: I....I....I....look....um...

Q(McIlwain):

Again today we’re asking you do you specifically recall?

A: No, no. Look I...I...I...I....I can’t recall. You’re asking me about events that occurred sixteen years ago which didn’t result in an identification. Line-up displays that...that don’t result in an identification aren’t particularly rememberable. I mean who the hell can remember this stuff? I would honestly say that....that Gerald Davis is wrong, the he did not...uh...uh...the he did see this photo line-up...

I also asked Scheff if the Mosely line-up was different in appearance from the Freeman and Smith line-ups. He stated that it was different because the photos in the Mosely line-up were from a different source, the City of Fort Lauderdale Police Department. According to Scheff, at the time of the investigation he was in possession of a color picture of Mosely obtained from the City Police. The Broward Sheriff’s Office did not produce color booking photographs at that time. Thus, he needed five more from the City in order to create a proper line-up.

Scheff emphasized that he had seen Mosely in February of 1985, two months prior to Shandra’s murder. Mosely’s hair was closely cropped. Therefore, according to Scheff, at the time of Shandra’s murder Mosely would not have resembled the 1981 photograph that Walsh showed to Lowe.

INTERVIEW OF PHILLIP AMABILE

I took a taped, sworn statement from Detective Amabile at the office of his attorney in Fort Lauderdale. Unfortunately, Amabile’s interview had to be canceled and rescheduled several times because he recently had a relapse of cancer necessitating immediate surgery. Amabile agreed to be interviewed without hesitation. It was not necessary to compel him to testify. However, in order to allow Amabile to speak freely without fear of personal repercussion I decided to subpoena him. Pursuant to Florida Statute 914.04 this gave Amabile use-immunity for his testimony. If he and Scheff conspired to lie, then Amabile could tell the truth about their conduct without fear of his admissions being used against him in a criminal proceeding. Amabile did not learn that I was conferring use immunity upon him until after he was sworn as a witness.

I showed Amabile the Mosely line-up that we retrieved from evidence and asked him whether it was the one that was used in the Smith case. He could not identify it by simply looking at it.

Amabile stated that the Mosely line-up existed during the original investigation. He specifically recalled that he and Scheff showed it to Dorothy McGriff. He also believed that they showed it to Chiquita Lowe and Gerald Davis. He admitted, however, that his memory of showing it to Lowe and Davis was derivative of his memory of showing it to Dorothy McGriff.

I asked him why he felt comfortable testifying that it was shown to Lowe and Davis considering the derivative nature of his memory. He stated that he and Scheff had a "slight concern" that Dorothy McGriff may have been "covering" for Mosely when she excluded him as a suspect. At the same time that she excluded Mosely, she had advised them that Mosely was her cousin. Therefore, it would have been prudent for them to show the line-up to Lowe and Davis as well. In this regard he stated, "You know because she is... She’s identifying him as kin. Is she protecting him? ... So, that’s another reason why I am....I’m certain that we showed the line-ups to the others just because she says it you know...and we don’t doubt her but, you know...we’re also investigating a murder." Specifically, I asked him:

Q: Would you agree that your memory of showing the Mosely line-up to Davis and Lowe was derivative or dependant upon your memory of showing that line-up to Dorothy McGriff?"

A: Yes, I do. Uh...in all honesty, I’d have to say yes....and for the reasons I stated.

Later in his statement he added,

"The photos were there, it wasn’t something that we had to recreate. We had the photograph...uh...as, it was no heavy lifting to show the photographs again. We’re looking for a suspect. For us not to do it, I...I...I’m trying to answer that question based upon our work ethic as well. It just would not make sense for us not to do that."

I asked Amabile exactly where and when they showed the line-up to Lowe and Davis. He could not give specifics. He did say that he felt they would have shown the line-up to Lowe and Davis on the street because that is where they had most of their contact with Davis.

I asked Amabile about learning about Lowe’s recantation in the late 1980's. He stated that he remembered having a conversation with Scheff. Scheff said that Lowe had picked out Mosely. Amabile stated that his first reaction was, "B.S. We showed pictures of Eddie Lee Mosely. You know... they didn’t pick him out."

I directly confronted Amabile with the allegation that he and Scheff conspired to lie about showing the line-up to Lowe in order to discount her recantation. He unequivocally denied the accusation. During the interview Amabile stated that he and Scheff have a very close relationship, "on and off the job." I asked him if he could assure me that he was telling me the truth. He responded:

"Yes, and the reason I could tell you that is that we (he and Scheff) are both mature people. We both have families. We both have careers. We both have our jobs and our positions because of our integrity....uh...I am one of twelve Chiefs in the Sheriff’s Office. I did not get here by lying, cheating or swindling. I think those will get you someplace, but they won’t get you all...all the way."

INTERVIEW OF CHIQUITA LOWE

I took a taped, sworn statement from Chiquita Lowe at the office of her lawyer in Fort Lauderdale. Lowe stated that the man she saw on the street on the night of the murder was Eddie Lee Mosely. However, the man at her house trying to sell the television set four days later was Frank Lee Smith. I asked Lowe how many line-ups she saw during the investigation. She said that she saw only one line-up which contained both Frank Lee Smith and James Freeman. She added that there was a book of photos used during the investigation.

Lowe alleged that Dimitrouleas, Scheff and Amabile pressured her to testify. At first she claimed that Scheff and Amabile told her, "You need to just say this is the man who did it."

Later, she alleged that when Scheff and Amabile showed her the Smith line-up she pointed out Smith and said, "That kind of, sort of, looks like the guy." I confronted her with her many sworn statements wherein she identified Smith without reservation and never mentioned pressure by the police. I pointed out to her that she gave a pretrial deposition with only the defense attorney present. I asked her why she did not say something at that point about pressure by the police. She persistently attempted to evade my questions. She could not give an adequate explanation.

Her allegations of being pressured by the police were vague and inconsistent. At one point I asked her, "What did they do to pressure you, did they point their guns, did they threaten you?" Her response was very strange. She diverted the question and started to blame her prior testimony on Gerald Davis. She insisted that she and Davis had "elaborated" (she meant collaborated) on their testimony. I asked her what she meant by that. She expressed to me that Davis was gay and liked the attention of the male detectives. She never explained how this affected her testimony. In contrast to her accusation about Davis, the record clearly reflects that Davis had some reservations about his identification of Smith. He insisted upon a live line-up. Even after the live line-up identification, he expressed reservation about Smith’s height. He was reluctant to testify at the original trial. In fact, the State had asked the court to call Davis as a "court witness" because of his reluctance to cooperate.

I continued to ask Lowe what specifically Scheff did to get her to lie. She stated that after she identified Smith in the line-up, Scheff told her, "You have been a good girl, I’ll take you out to dinner." I asked her if this led to sex and she stated, "No, my grandma would not let that happen."

Lowe also claimed that she knew that Dorothy McGriff, the victim’s mother, covered for Eddie Lee Mosely because "the whole family had problems."

Late in the interview Lowe stated that at the time of Shandra’s death Lowe felt extremely sympathetic to Shandra’s family because Lowe herself had been raped. She added that she was overwhelmed with guilt about identifying the wrong person.

LAW AND EVIDENCE ANALYSIS

To reiterate, the allegation of perjury is that Detective Scheff lied in post conviction litigation hearings when he testified that at the time of the original investigation he created a Mosely line-up and showed it to Chiquita Lowe. Scheff has consistently admitted that his post conviction testimony contradicts his trial testimony. In the original trial he testified that photo line-ups were only done for Smith and Freeman. Scheff maintains that his original testimony was simply mistaken and that his later testimony was correct.

Florida statute § 837.021 (2) states that, "Whoever, in one or more official proceedings that relate to the prosecution of a capital felony, willfully makes two or more material statements under oath which contradict each other, commits a felony of the second degree." In order to prove perjury by contradictory statements it is not enough that a witness give contradictory statements on two different occasions under oath. The Florida Supreme Court has rightly construed the term "wilfully" in this statute to mean that the incorrect statement was knowingly false when made. A statement made through error, mistake or inadvertence is not one made "willfully" within the purview of the statute. Brown v. State, 334 So.2d 597 (Fla. 1976).

The first question that needs to be answered in order to determine whether the elements of perjury are satisfied is whether the Scheff/Amabile testimony in 1991 and 1998 was in fact false. This is a twofold question: 1-Did the line-up exist in 1985? and 2- Did Scheff and Amabile show it to Chiquita Lowe?

DID THE MOSELY LINE-UP EXIST IN 1985? IS IT A FABRICATION?

There is evidence tending to show that the line-up existed. The most significant evidence is the testimony of Dorothy McGriff. Dorothy McGriff has a clear and distinct memory of Scheff and Amabile showing her "a group of photos" containing Eddie Lee Mosely’s picture. She is unsure whether Mosely’s picture was in a line-up or a book of photos. Her recollection of detail regarding her reaction to Mosely’s picture is identical to Scheff’s and Amabile’s. Dorothy McGriff’s recollection of seeing a picture of Eddie Lee Mosely during the original investigation goes a long way to establishing that a Mosely line-up existed as Scheff and Amabile claim.

Additionally, there is evidence that Detective Scheff considered Mosely as a suspect very early into the investigation. At trial, Smith’s lawyer knew that Mosely was a suspect in the case. Both Scheff and Amabile acknowledged in their original trial testimony that Eddie Lee Mosely was a suspect early on in the investigation. A police request for fingerprint examination lists Eddie Lee Mosely as a suspect. The request is dated April 16, 1985, two days after the murder. The composite of the suspect was created on April 17, 1985.

The date of the fingerprint request form substantially corroborates Scheff’s claim that he created a line-up for Mosely for another reason. Scheff has repeatedly testified that once he saw the composite he completely discounted Mosely as a suspect. Scheff believed that Mosely did not look at all like the composite. Indeed, the 1984 picture of Mosely in the questioned line-up (unlike the 1981 photo that Walsh showed Lowe) does not look like the composite. Thus, because the fingerprint request form predates the composite sketch, there was still reason for Scheff to "throw together" a line-up for Mosely. To be sure, the date of the fingerprint request form establishes that Mosely was considered as a suspect before the creation of the composite sketch.

Forensic analysis of the line-up, detailed above, does not contradict the authenticity of the line-up.

On the other hand, Chiquita Lowe and Gerald Davis both state that they were never shown such a line-up. Scheff, Amabile and Gerald Davis all testified during the original trial that only two line-ups were used in the case, one for Smith and one for Freeman. There was absolutely no mention of a Mosely line-up in Scheff’s notes or reports. Additionally, neither Scheff nor Amabile mentioned a Mosely line-up in their pretrial depositions. It does seem that they should have mentioned a Mosely line-up in response to some of Smith’s lawyer’s questions. For instance, Smith’s lawyer asked Scheff about everything that was done in the case. Smith’s lawyer asked both Scheff and Amabile about "relative(s) of the deceased, uncles, cousins" who were considered as suspects. Yet, neither mentioned Mosely. At the time of deposition, both detectives admit that they knew that Mosely, in addition to Edwin McGriff, was a cousin of Dorothy McGriff. However, it must be remembered that both detectives acknowledged in their original trial testimony that Mosely was considered as a suspect in the case.

The evidence is inconclusive as to whether the Mosely line-up actually existed in 1985. Thus, Scheff’s and Amabile’s testimony cannot be said to be false in that regard.

Dorothy McGriff’s testimony that she saw a picture of Eddie Lee Mosely during the original investigation tends to show not only that the line-up existed, but that it was being used by detectives during their investigation. Both Scheff and Amabile continue to say that they showed the Mosely line-up not only to her but also to Chiquita Lowe and Gerald Davis. They both stated during this investigation that they had good reasons, albeit different ones, to show the Mosely line-up not only to Dorothy McGriff, but also to Lowe and Davis: Scheff stated that they needed to establish whether the man seen by Dorothy McGriff at her home was the same man seen earlier by Lowe and Davis; Amabile stated that they were slightly concerned about whether Dorothy McGriff was "covering" for her cousin.

On the other hand, as mentioned above, there was absolutely no mention of Scheff and Amabile showing the line-up to any of the witnesses in their notes or reports. Scheff, Amabile and Gerald Davis all testified during the original trial that only two line-ups were used in the case, one for Smith and one for Freeman.

In post conviction proceedings, both detectives’ memory of showing the line-up to Lowe and Davis seemed derivative of showing the line-up to Dorothy McGriff: Both made specific reference to showing the line-up to McGriff when asked about whether they showed it to Lowe and Davis. During my interviews, both detectives virtually conceded that their memory was both derivative and based upon assumptions of what they would likely have done during the course of a typical, thorough investigation.

Both Chiquita Lowe and Gerald Davis have continually said that the detectives never showed them a Mosely line-up. Therefore, an assessment of their credibility is necessary.

When I interviewed Davis he was relatively certain that he never saw the Mosely line-up. His credibility on this point is corroborated by his original trial testimony wherein he stated that he was only shown two line-ups during the investigation. However, during my interview he candidly admitted that he had difficulty remembering events from 1985. He also contradicted material representations made to me by Investigator Jeff Walsh. Walsh claimed that he contacted Davis prior to the post-conviction proceedings and that Davis was hostile. Davis denies any such event. More importantly, Davis adamantly told me that he never testified in court regarding this murder case. This is the type of fact that a credible person would not forget. Davis has also been convicted of a felony involving dishonesty. Consequently, Davis’s credibility does not rise to a level where his word sufficiently establishes that the Mosely line-up was not in fact shown to him by detectives.

During the post conviction proceedings and during this investigation, Chiquita Lowe has claimed that Scheff and Amabile never showed her a photo line-up containing Mosely. However, during the original trial the prosecutor asked Lowe the following series of questions:

Q: The next day (after the television set incident) did the police bring any pictures

over for you to look at?

A: Yes.

Q: Prior to that had they brought over other pictures to look at?

When Smith’s trial lawyer cross examined her she gave similar testimony:

Because Lowe gave this testimony during the original trial, it is hard to believe that her memory on these issues has improved with the passage of time.

Lowe claims that had detectives shown her a line-up containing Mosely’s picture she would have identified him. However, that is not necessarily true. Mosely’s appearance in the questioned line-up is quite different from his appearance in the 1981 picture that Investigator Walsh showed her. It is quite possible that she saw the Mosely line-up during the original investigation and did not recognize him. In fact, when Investigator McIlwain and I recently showed Gerald Davis the Mosely line-up he emphatically denied that Mosely was the man he and Chiquita Lowe saw on the street.

Based upon my review of all the facts of this case, I believe that Chiquita Lowe was telling the truth in 1991 and 1998 when she stated that the man she saw on the street on the night of the murder was Eddie Lee Mosely, not Frank Lee Smith. I believe that after Eddie Lee Mosely approached Gerald Davis and Chiquita Lowe he then went into the McGriff home and raped and murdered Shandra Whitehead. In light of the DNA evidence, this conclusion is virtually inescapable. However, I also believe that after Mosely left the house, Dorothy McGriff saw Frank Lee Smith (the "figure at the window" in his own words) attempting to steal a television set from the McGriff home. Smith’s final words prior to sentencing are haunting in this regard. He stated, "The point must be established whether this figure was actually the figure that raped and killed the victim." As Chiquita Lowe still maintains to this date, Frank Lee Smith showed up at Chiquita Lowe’s house four days after the murder trying to sell a "hot" television set.

So, Chiquita Lowe was telling the truth in 1991 and 1998 when she said that Eddie Lee Mosely was the man she saw on the street on the night of Shandra’s murder. Does that mean she is to be believed as to every assertion she makes? Simply because a witness is capable of telling the truth on one occasion about one particular subject does not make them a credible witness in general. This is especially true of Chiquita Lowe.

Though Frank Lee Smith should have been granted an acquittal in 1991 and 1998, no one can blame the judges who presided over those hearings for failing to grant relief to Smith. Both of the judges were asked to believe the testimony of Chiquita Lowe. Both correctly described her as completely lacking credibility.

Chiquita Lowe gave false testimony in Frank Lee Smith’s murder trial. There are three possible explanations for why she gave false testimony. First, she lied because the police and prosecutor pressured her. Second, she lied because she felt sympathy for the victim. Third, at the time she testified she thought that she was properly identifying Frank Lee Smith but was honestly mistaken.

Lowe now claims that she intentionally lied because she was pressured by the police and prosecutor. She alleges that the police and prosecutor told her to lie by going into court and identifying Frank Lee Smith. But there is a fatal problem with her accusation. In 1985, Lowe was consistently adamant that the man who appeared at her house was the same man she saw on the street on the night of the murder. Though in reality she may have been unsure that the two men were one and the same, she never expressed any doubt as to that fact to anyone involved in the case. Thus, no one knew of her doubt as to this most crucial fact. Because no one knew of her doubt, no one had reason to coerce her to resolve that doubt by lying. When the police and prosecutor told her to identify Frank Lee Smith as the man at her door, they were urging her to tell the truth. Frank Lee Smith was the man at her door, as Lowe still maintains. Again, the police and prosecutor had no reason to know that the man at her door and the man on the street were not one and the same as Lowe consistently claimed. Thus, the record shows that she is falsely accusing the police and the prosecutor.

Lowe does not understand the difference between "pressuring" a reluctant witness to testify truthfully and "pressuring" a witness to lie. She mistakes the latter for the former. This is completely clear when her statements are closely analyzed. In order to rationalize her own guilt for giving false testimony she twists "the two detectives kept saying just go in there and tell the truth" into just go in there and lie. This is a distinction with a very big difference that she chooses to ignore. Additionally, Lowe’s vague accusations about being pressured by investigators are completely inconsistent with her prior recorded statements to detectives and her testimony at trial and deposition. At trial, the prosecutor asked her:

Additionally, at her pre-trial deposition with Smith’s lawyer, Lowe had a golden opportunity to tell Smith’s lawyer about any improper police conduct. No one was present from the State. Yet, she said nothing. To the contrary, she reassured Smith’s lawyer that she was certain of her identification.

She may have lied because she felt sympathy for the victim. Lowe told me that she was raped herself and, consequently, felt extreme sympathy for the victim and the victim’s mother. She added that there was "community pressure" brought to bear on her. She also stated that her "life was complicated" and that her mother pressured her to "say these things right here and this man will never get out."

It is also possible that at the time of trial she honestly thought Frank Lee Smith was the man whom she saw on the street on the night of the murder. As years passed, she may have been questioning her testimony in her own mind. When Investigator Walsh confronted her with the 1981 picture of Eddie Lee Mosely she realized her error and was overwhelmed with guilt. Lowe’s false testimony, above all the other evidence in Frank Lee Smith’s case, put Smith on death row. During their eight and one half hour deliberations, the jury asked to rehear the testimony of only one witness: Chiquita Lowe. Yet, she did not come forward on her own accord four years after his death sentence expressing doubt about her identification of Frank Lee Smith. To the contrary, Smith’s lawyers contacted her.

In order to personally gauge Chiquita Lowe’s credibility I met with her face to face. It was clear to me that rather than fully accept responsibility for her own conduct, she was spreading the blame to everyone else involved in the case. It is no short list of people that she accused of misconduct. The list includes the detectives, the trial judge, the prosecutor, the victim’s mother, and Gerald Davis. In order to rationalize her own guilt, she was more than eager to make bad faith false accusations about these people. The most striking of these spurious allegations was that Gerald Davis "elaborated" (collaborated) with her to lie because he is gay and "liked the buns of the detectives." She also accused the victim’s mother, Dorothy McGriff, of covering for Eddie Lee Mosely because the family are all "screwed up." I found these allegations disturbing and preposterous.

Lowe is not to be believed when she slings allegations against others involved in the case. The easiest targets for her are the detectives. Consequently, her testimony is of no use to establish whether a line-up containing Eddie Lee Mosely’s 1984 photograph was shown to her during the original investigation.

The evidence is inconclusive regarding whether Scheff and Amabile gave false testimony when they testified that they showed the Mosely line-up to Chiquita Lowe and Gerald Davis. As to both material issues of fact, there is insufficient evidence to prove that Scheff and Amabile gave false testimony in 1991 and 1998.

Even assuming that Scheff and Amabile did not show the Mosely line-up to Lowe and Davis, it cannot be proven that their testimony to that effect was "knowingly" false when given, as required for criminal prosecution. In order for false testimony to constitute perjury, a witness must be consciously aware of the testimony’s false nature at the time the testimony is given. Though their testimony may have arisen from negligence, Scheff and Amabile may have honestly believed that they showed the Mosely line-up to Lowe. The law does not seek to criminally punish those whose false testimony is based upon incorrect or careless assumptions. Error, mistake or inadvertence does not suffice to satisfy the "knowingly false" standard. This distinction is significant. If such were not the case, all prior inconsistent statements, including honest mistakes, would constitute perjury. As every lawyer knows, it is extremely common for witnesses to give inconsistent statements under oath. One of the purposes of cross examination is to expose whether testimony is based upon faulty assumptions.

In their sworn statements to me during this investigation, Scheff and Amabile conceded that their testimony was based upon assumptions. The propriety of giving testimony in a capital case based upon assumptions of "proper police work" or "having a reason" to have done things, is not the subject of my investigation. My investigation focuses purely on whether a criminal charge for perjury should be pursued.

CONCLUSION

Assuming that Scheff and Amabile were truthful in their sworn testimony during this investigation, it is very unfortunate for them that they did not document the existence and use of the Mosely line-up during their original investigation. That failure to document their work, combined with the other unique circumstances of this case, gave rise to a reasonable suspicion of perjury by Smith’s lawyers. The question for me is whether sufficient proof exists to warrant a criminal prosecution. It does not.

I conclude that there is insufficient evidence to show that Detectives Scheff and Amabile knowingly gave false testimony. No prosecution of either detective is warranted. Criminal prosecution should be declined.