This appeal involves a consolidated appeal from the denial of two

Rule 3.850 motions on which an evidentiary hearing was granted on some

issues, and summarily denied on others. References in the Brief shall be

as follows: (R. )--Record on Direct appeal; (1PCR. )--Record from

first postconviction appeal; (2PCR. PCR. )--Record from second

postconviction appeal. References to the exhibits introduced during the

hearing and other citations shall be self-explanatory.

Mr. Trepal requests that oral argument be heard in this case. This

Court has not hesitated to allow oral argument in other capital cases in

a similar posture. A full opportunity to air the issues through oral

argument would be more than appropriate in this case, given the

seriousness of the claims involved and the stakes at issue.

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

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

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . iv

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

A. 1996 EVIDENTIARY HEARING . . . . . . . . . . . . . . . .2

B. 1999-2000 EVIDENTIARY HEARING. . . . . . . . . . . . . .23

SUMMARY OF THE ARGUMENTS . . . . . . . . . . . . . . . . . . . . . 40

ARGUMENT I--NO GUILT PHASE ADVERSARIAL TESTING. . . . . . . . . 42

A. FALSE AND INADMISSIBLE SCIENTIFIC TESTIMONY. . . . . 44

1. Frye issue. . . . . . . . . . . . . . . . . . . 45

2. Giglio issue. . . . . . . . . . . . . . . . . . 55

3. Brady issue. . . . . . . . . . . . . . . . . . . 57

B. FAILURE TO OBTAIN TOXICOLOGY EXPERT AND PRESENT

EVIDENCE REGARDING OTHER SCIENTIFIC ISSUES. . . . . 59

1. Arsenic. . . . . . . . . . . . . . . . . . . . . 59

2. Thallium Increase in Hospital. . . . . . . . . . 66

3. Thallium on Pye Carr's Property. . . . . . . . . 67

C. OTHER EXCULPATORY EVIDENCE. . . . . . . . . . . . . . 69

1. Brady issues. . . . . . . . . . . . . . . . . . 69

2. Other suspects. . . . . . . . . . . . . . . . . 73

3. Speech impediment. . . . . . . . . . . . . . . . 77

4. The threatening note. . . . . . . . . . . . . . 78

D. CONCLUSION. . . . . . . . . . . . . . . . . . . . . . 79

ARGUMENT II--LAW ENFORCEMENT'S CONFLICT OF INTEREST . . . . . . 80

ARGUMENT III--JUROR MISCONDUCT . . . . . . . . . . . . . . . . 83

ARGUMENT IV--ATTORNEY CONFLICT OF INTEREST . . . . . . . . . . 86

ARGUMENT V--NO PENALTY PHASE ADVERSARIAL TESTING . . . . . . . 88

A. THE LOWER COURT ERRED IN FINDING TRIAL COUNSEL MADE

A REASONABLE AND TACTICAL DECISION NOT TO PRESENT

MITIGATION. . . . . . . . . . . . . . . . . . . . . . 88

1. Humanizing mitigation. . . . . . . . . . . . . . 89

2. Lingering Doubt. . . . . . . . . . . . . . . . . 93

ARGUMENT VI--PUBLIC RECORDS . . . . . . . . . . . . . . . . . . 95

A. RECORDS OF CONFIDENTIAL INFORMANT . . . . . . . . . . 95

B. EXEMPT RECORDS OF STATE ATTORNEY'S OFFICE . . . . . . 97

C. INTERVIEWS RELATED TO SUSAN GORECK'S BOOK. . . . . . 98

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . 100

Blanco v. Wainwright,

507 So. 2d 1377, 1384 (Fla. 1987) 86

Brady v. Maryland,

373 U.S. 83 (1963) 43, 48, 82, 97

Brim v. State,

695 So.2d 268, 271 (Fla. 1997) 46

Buenoano v. Singletary,

963 F.2d 1433 (11th Cir. 1992) 82

Burger v. Kemp,

483 U.S. 776 (1987) 88

Craig v. State,

685 So. 2d 1224, 1226 (Fla. 1996) 55

Craig v. State,

685 So. 2d 1224, 1232-34 (Fla. 1996) 56

Cuyler v. Sullivan,

446 U.S. 335 (1980) 86

Daubert v. Merrell Dow Pharmaceuticals, Inc.,

509 U.S. 579 (1993) 46

Davis v. Alaska,

415 U.S. 306 (1974) 100

Deaton v. Dugger,

635 So.2d 4, 8 (Fla. 1993) 92

Driscoll v. Delo,

71 F.3d 701, 709 (8th Cir. 1995) 64

Fitzpatrick v. McCormick,

869 F.2d 1247 (9th Cir. 1989) 88

Flanagan v. State,

625 So.2d 827, 829 n.2 (Fla. 1993) 46

Frye v. United States,

293 F. 1013 (D.C. Cir. 1923) 43

Garcia v. State,

622 So. 2d 1325 (Fla. 1993) 94

Gaskin v. State,

737 So.2d 509 (Fla. 1999) 83

Giglio v. United States,

405 U.S. 150 (1972) 43, 48

Hadden v. State,

690 So. 2d 573, 579 (Fla. 1997) 45

Hadden v. State,

690 So.2d 573, 578 (Fla. 1997) 46

Harich v. State,

542 So. 2d 980 (Fla. 1989) 86

Hayes v. State,

660 So.2d 257, 263-265 (Fla. 1995) 45

Holley v. State,

523 So.2d 688, 689 (Fla. 1st DCA 1988) 46

Horton v. Zant,

941 F. 2d 1449 (11th Cir. 1991) 89

Husky Industries, Inc. v. Black,

434 So.2d 988, 992 (Fla. 4th DCA 1983) 46

Jones v. State,

591 So. 2d 911 (Fla. 1991) 43

Kaelbel Wholesale, Inc. v. Soderstrom,

785 So. 2d 539, 549 (Fla. 4th DCA 2001) 47

Kennedy v. State,

385 So. 2d 1020, 1021-22 (Fla. 5th DCA 1980) 70

Kumho Tire Co. v. Carmichael,

119 S.Ct. 1167, 1177 (1999) 46

Kyles v. Whitley,

514 U.S. 419 (1995) 58

Lightbourne v. Dugger,

549 So. 2d 1364 (Fla. 1989) 44

Peede v. State,

474 So. 2d 808 (Fla. 1985) 70

Pennsylvania v. Ritchie,

480 U.S. 39 (1987) 100

Poulin v. Fleming,

782 So. 2d 452, 457 (5th DCA 2001) 47

Provenzano v. Singletary,

148 F. 3d 1327, 1332 (11th Cir. 1998) 63

Provenzano v. State,

616 So. 2d 428, 430 (Fla. 1993) 48

Ragsdale v. State,

2001 WL 1241135 (Fla. Oct. 18, 2001) 64, 92

Ramirez v. State,

542 So.2d 352, 355-56 (Fla. 1989) 50

Ramirez v. State,

651 So.2d 1164, 1168 (Fla. 1995) 46

Rose v. State,

774 So.2d 629 (Fla. 2000) 56

Russ v. State,

95 So. 2d 594, 600 (Fla. 1957) 85

Sanders v. Ratelle,

21 F. 3d 1446, 1452 (9th Cir. 1994) 88

Spaziano v. Singletary,

36 F. 3d 1028, 1040 (11th Cir. 1994) 63

Starr v. Lockhart,

23 F.3d 1280 (8th Cir. 1994) 94

State v. Bradford,

658 So. 2d 572 (Fla. 5th DCA 1995) 70

State v. Davis,

720 So. 2d 220, 227 (Fla. 1998) 99

State v. DiGuilio,

491 So.2d 1129 (Fla. 1986) 48

State v. Huggins,

788 So. 2d 238, 242 (Fla. 2001) 44

Stephens v. State,

748 So. 2d 1028 (Fla. 1999) 44, 89

Stokes v. State,

548 So.2d 188, 193-94 (Fla. 1989) 46

Strickland v. Washington,

466 U.S. 668 (1984) 43, 85, 88

Strickler v. Greene,

527 U.S. 263 (1999) 58

Trepal v. State,

621 So. 2d 1361 (Fla. 1993),

cert. denied, 114 S. Ct. 892 (1994) 1

Trepal v. State,

621 So. 2d 1361, 1365 (Fla. 1993) 30

Trepal v. State,

704 So. 2d 498 (Fla. 1997) 1

Trepal v. State,

754 So. 2d 702 (Fla. 2000) 2

Troedel v. Wainwright,

667 F. Supp. 1456 (S.D. Fla. 1986),

aff'd. sub. nom. Troedel v. Dugger,

828 F. 2d 670 (11th Cir. 1987) 48

United States ex rel. Williams v. Twomey,

510 F.2d 634 (7th Cir.) 43

United States v. Agurs,

427 U.S. 97 (1976) 56

United States v. Anderson,

574 So. 2d 1347, 1355 (5th Cir. 1978) 56

United States v. Antone,

603 F. 2d 566, 569 (5th Cir. 1979) 48

United States v. Bagley,

473 U.S. 667 (1985) 58

United States v. Bagley,

473 U.S. 667, 683 (1985) 59

United States v. Hearst,

638 F.2d 1190 (9th Cir. 1980) 82

Valle v. State,

705 So.2d 1331 (Fla. 1997) 83

Ventura v. State,

673 So. 2d 479 (Fla. 1996) 95

Way v. State,

760 So. 2d 903, 912 (Fla. 2000) 59

Way v. State,

760 So. 2d 903, 913 (Fla. 2000) 44

Williams v. Griswald,

743 F. 2d 1533, 1541 (11th Cir. 1984) 48, 55

Williams v. Taylor,

120 S.Ct. 1495 (2000) 88

Young v. State,

739 So. 2d 553, 558-59 (Fla. 1999) 59

Young v. State,

739 So.2d 553, 558-59 (Fla. 1999) 94

Young-Chin v. City of Homestead,

597 So.2d 879, 882 (Fla. 3d DCA 1992) 46

regarding public records. Trepal v. State, 704 So. 2d 498 (Fla. 1997).

Mr. Trepal was indicted by the grand jury in the Tenth Judicial

Circuit, Polk County, Florida, on April 5, 1990, for one count of

first-degree murder, several counts of attempted first-degree murder,

poisoning food or water, and tampering with a consumer product. Jury

trial commenced January 7, 1991. At the close of the 4-week trial, the

jury found Mr. Trepal guilty of all counts. The penalty phase took

place on February 7, 1991, the day after the guilty verdict, and the

jury recommended death by a vote of 9-3. On March 6, 1991, the Court

sentenced Mr. Trepal to death. This Court affirmed, with two justices

dissenting. Trepal v. State, 621 So. 2d 1361 (Fla. 1993), cert.

denied, 114 S. Ct. 892 (1994).

An initial Rule 3.850 motion was filed on June 16, 1995, and an

hearing was conducted on some claims in October, 1996, and an order

denying relief was entered on November 6, 1996 (Id. at 3337).

Following a rehearing motion which was denied (Id. at 3515), a timely

notice of appeal was filed.

On April 15, 1997, the Office of the Inspector General issued a

report (OIG Report) regarding various serious deficiencies noted in a

litigation in federal court due to the lethargic disclosure by the

government of the requested information. See Trepal v. United States

Dept. of Justice, No. 97-796-CIV-21B (M.D. Fla.). The suit was

voluntarily dismissed once the records had all been disclosed.

interlocutory appeal. Trepal v. State, 754 So. 2d 702 (Fla. 2000).

30 witnesses. Due to page limits, not all witness testimony can be

summarized in this section, but their testimony will be addressed in

those portions of the brief to which the testimony is relevant.

number of cases, including this one, in which the FBI Crime Laboratory

and its scientists were involved. On June 20, 1997, Mr. Trepal sought,

and this Court granted, a relinquishment of jurisdiction to investigate

and file a second Rule 3.850 motion. Mr. Trepal thereupon filed his

motion, which was later amended after disclosure of additional records

2000 (Id. at 2675). Mr. Trepal timely filed a notice of appeal, which

was consolidated with the first 3.850 appeal.

murder trial "a good thirty years" before Mr. Trepal's trial (1PCR.

1962-63; 1967). His son, Jonathan, worked in the same law firm, as did

attorney Dabney Connor (Id. at 1963-64). Because the case involved

scientific issues, Connor, who had majored in chemistry in college, was

hearing, Detective Ernest Mincey testified that he found the letter in

a garbage can during a search of Pye Carr's home (Id. at 2498). After

Mr. Trepal's arrest, Mincey showed the note to prosecutor Aguero (Id.

at 2506-08).

brought onto the team (Id. at 1964). Connor handled the scientific

issues, Jonathan did most of the discovery and fact development, and W.

Stidham did most of the legal work (Id. at 1968-69). The focus of the

defense preparation was the guilt phase (Id. at 1975). The defense was

one of reasonable doubt and to attack the State's entirely

circumstantial case (Id. at 1976). No decisions about what evidence to

put on in the defense case were made until "near the end of the trial"

(Id. at 1978).

The victim's husband, Pye Carr, was a suspect, but there was not

much "concrete evidence on it" (Id. at 1981). Evidence that Pye had

motive to commit murder would have been important for the jury, as

would trouble in the marriage (Id. at 1982). Pye had a girlfriend

named Laura Ervin, but he did not recall what evidence they had to

support any inquiry on this point (Id. at 1985).

At trial, Stidham had not seen a note written by Peggy Carr to

fact that the note indicates that the marital problems were serious is

information he would have expected to receive from the State during

discovery and is "consistent with the theory that Pye Carr may have

hearing (Id. at 3119; 3127).

been the perpetrator" (Id. at 1988-89; 1991).

Exhibit 2 was a statement taken by Detective Paul Schaill of

Larry Dubberly (ex-husband of Peggy Carr and father of Duane), in which

Dubberly recounts seeing Pye after he was interviewed by lead detective

Mincey; according to Dubberly, Pye was trembling and "so nervous he

couldn't even talk" (Id. at 1994-95). This statement is consistent

with Pye as a suspect (Id. at 1995). He did not recall if the defense

had this statement, nor if Larry testified (Id. at 1996). The

statement also revealed that Larry told Mincey that when Travis Carr

was in the hospital, Larry heard Travis screaming "They are trying to

kill me. They tried to kill me before, and they're trying to kill me

again" (Id. at 1997). The "they" Travis was referring to were Pye and

information was presented to the jury (Id. at 1998). The same

statement further revealed a scene in the hospital where Larry, Pye,

Carolyn, and Margaret Carr (Pye's ex-wife) were informed that the

substance was "lathium or lithium or something" used in labs and

derived from phosphates; at that point, Margaret turned to Pye and said

"You've been working at the Silver City mine all these years, and

they've got two chemist labs out there, do you know anything about this

-- the kids got into?" (Id. at 1999-2000). Pye then turned to his ex-

not provided to the defense during discovery, and Goreck herself

confirmed that she did not disclose them (Id. at 2031; 3144-45).

wife and said "You shut your Goddamn mouth" (Id. at 2000). Stidham did

not know if this had been told to the jury, but the statement "doesn't

really bowl me over" (Id. at 2001).

Susan Goreck was a detective with the Polk County Sheriff's

Office who went undercover and befriended Mr. Trepal (Id. at 2016).

Her credibility was "a significant factor," as one of the goals of the

defense was to raise the inference or suspicion that the bottle found

in Mr. Trepal's vacated garage was planted by law enforcement (Id. at

2018-22). Stidham was shown an internal intelligence report authored

by Goreck dated March 15, 1990, stating that on March 5, 1990, she

received a call from FBI Agent Brekke indicating that .64 grams of

thallium I nitrate had been found in the bottle (Id. at 2022-23).

Stidham did not recall ever receiving any of the internal intelligence

1990, Goreck called Donald Havekost at the FBI Crime Lab to confirm

that the bottle contained thallium I nitrate in the amount of .64 grams

(Id. at 2024). According to the FBI Lab reports, however, the testing

and results therefrom did not occur until months after March of 1990,

and the fact that Goreck knew what the substance was in the bottle

before the FBI testing had occurred is "a significant piece of

information" (Id. at 2029).

No decision was made about what to present at the penalty phase

until after the verdict (Id. at 2032). One of the "options" was to put

on some of Mr. Trepal's friends to show that he was a "gentle person"

and incapable of these crimes (Id. at 2033). One problem was some

prior bad act evidence which had been excluded by the judge, and the

concern that the State could "rebut" the character evidence (Id.). Any

jury that would convict Mr. Trepal with the evidence that the State had

"was certainly not going to listen to very much" in terms of the

penalty phase (Id. at 2038).

Another issue in the case involved trace amounts of thallium

detected in Pye Carr's apartment (Id. at 2051). Several witnesses at

trial were questioned about this issue (Id. at 2052). He did not

recall anything about levels of arsenic being detected in Peggy Carr's

system (Id.). The defense team did not discuss the case or strategies

with Mr. Trepal's wife, Diana Carr (Id. at 2053). He did recall

arguing in closing that Diana was "as logical a candidate as George

Trepal was" for having committed the crime; this was over Mr. Trepal's

objection (Id. at 2054). He did not recall what occurred with respect

to the jurors contacting the newspaper office during trial (Id. at

2055-56).

with the scientific issues because of his educational background in

is addressed in Mr. Trepal's state habeas corpus petition.

chemistry (Id. at 2078-79). He had experience with "a few" criminal

cases, but had never done a jury trial in a criminal case (Id. at

2080). The theory at trial was "to hold the State's feet to the fire

and make them prove their case" (Id.). Although the team discussed

putting on evidence, they felt that "the best opportunity we had for

creating a reasonable doubt was through trying to shoot holes in the

State's case (Id. at 2082). The bottle of thallium discovered in Mr.

Trepal's garage as well as the introduction of his prior involvement as

a chemist in a drug lab were the most significant parts of the State's

case (Id. at 2083). One of the ways they were trying to create

reasonable doubt was to infer that others could have committed the

crime, specifically Pye Carr (Id. at 2083-84). Any information bearing

on Pye as a suspect would have been something the jury should have been

aware of (Id. at 2084). The status of the Carr marriage was also an

issue, but the court would not permit them to fully explore it (Id. at

the status of the marriage of Pye and Peggy Carr (Id. at 2085-86).

Connor had not previously seen the letter from Peggy to Pye, which

definitely would have been something to investigate and question Pye

Carr and other family members about, and something he would have wanted

the jury to know (Id. at 2088-89).

in deposition that he questioned the level of arsenic in Peggy Carr's

urine, and thus Connor considered it an "anomaly" (Id. at 2137),

However, he acknowledged his conclusion was based on his own subjective

interpretation of the one test; he deposed none of the experts who

conducted the tests to determine if they had accurately calibrated the

machines (Id. at 2166). Had he had an expert who could have testified

that the results were not an anomaly but rather significant

information, Connor could not say whether or not he would have

presented that to the jury (Id. at 2169). He confirmed that no arsenic

was ever found in any of Mr. Trepal's property (Id. at 2171).

The discovery of thallium under a sink in Pye's apartment showed

that "someone on that property had access to thallium" (Id. at 2090).

The State downplayed the significance of this (Id. at 2091). An expert

could have been useful because "the layman would have some problem in

understanding what is thallium, where does it come from, and, you know,

how does it get here" (Id. at 2091-92; 2134-36; 2164).

Connor recalled seeing medical records indicating that Peggy Carr

had elevated levels of arsenic in her system when she was hospitalized,

although he did not recall it being "a bell ringer sort of elevation"

(Id. at 2093-94). In response to the arsenic levels, the hospital gave

Peggy a treatment called BAL (British Anti-Lewisite) (Id. at 2094-95).

Connor did not recall whether he brought out at trial the fact that

Peggy had elevated levels of arsenic (Id. at 2095), or whether other

family members had elevated levels of arsenic; however, hospital

records indicated abnormally high arsenic levels for Duane Dubberly and

per liter of thallium; on November 7, however, the level had increased

to 3.9 milligrams per liter (1PCR. 2098-99).

June 1990, he was asked by trial counsel to review the medical aspects

of the case, after which he recommended that they retain an expert in

toxicology because of the "level of sophistication and analysis"

involved with the issue of thallium (Id. at 3015; 3021). Willey

himself circulated a letter among various toxicologists and many had

volunteered their services (Id. at 3016). One had previously worked on

a case of thallium poisoning, and another had previously testified in

Bartow (Id. at 3016). He provided this information to Mr. Trepal's

trial attorneys (Id. at 3017). No toxicologist was ever retained by

Medical records also revealed that the level of thallium in

Travis Carr's urine increased significantly while he had been

was handled with the jury, but did recall discussing with the legal

team the accuracy of the test results or whether someone was continuing

to supply Travis with thallium while he was in the hospital (Id. at

2099-2100). The fact that Travis' level of thallium increased in the

hospital is consistent with a reasonable doubt defense (Id. at 2100).

Connor did the penalty phase closing argument, and nothing was

presented by the defense (Id. at 2101). Witnesses were available in

the hallway to testify "in a very simplistic term, that George was a

nice guy" (Id. at 2106-07). Connor has also asked Dr. Ed Willey to

review the overall poisoning situation, and although he did not recall

his conclusions, he did remember that they were "helpful" (Id. at

the defense, however.

the guilt phase, his order specifically did not indicate that Willey

could not be used at the penalty phase (Id. at 2111). He also recalled

having Mr. Trepal's prison records from his North Carolina

incarceration which indicated "no blemishes" in his conduct (Id. at

2112-13). Good prison conduct was admissible at the penalty phase, but

it was not presented (Id. at 2113). Connor believed that they had a

"better chance" of receiving less than death from the jury if they did

not put on any witnesses (Id. at 2108). Because the defense was "still

a little surprised" at the guilty verdict, they believed because "it

was such a close call" that "surely they will not vote for the death

penalty" (Id. at 2109).

Connor had many interactions with Mr. Trepal's wife, Diana, who

was "frustrated" with "everything" and concerned about being implicated

in the crime (Id. at 2104). The fact that a particular witness in a

case is also considered a suspect is something for the jury to know in

a criminal case (Id. at 2115). Mr. Trepal indicated that he did not

want the finger pointed at his wife (Id. at 2146); however, Connor did

argue during closing arguments, "against [Mr. Trepal's] instruction,"

that Diana could have committed the crime (Id. at 2175).

Regarding Exhibit 4 (Goreck's intelligence report), Connor did

not believe he saw this at the time of trial (Id. at 2116-17). The

still would have made the argument to the jury that the bottle was

planted, and that Goreck's explanation was not believable (Id. at 2152;

2177-78). In fact, "that would have been real strong ammunition" and

he would have "done everything I could to get that in front of the jury

and to make a strong argument about it" (Id. at 2179).

report "makes me wonder if she knew" that the bottle found in Mr.

Trepal's garage contained thallium I nitrate before she had even

requested the testing on the bottle (Id. at 2122). This information

"certainly" implies that she planted the bottle herself, which was

consistent with the defense (Id. at 2123). Had he had the report, he

October, 1987 (Id. at 2218). At the time of Mr. Trepal's trial, he had

done no murder cases (Id. at 2221-22). The "initial approach" at trial

was to cast light on other suspects like Pye Carr, and then "trying to

create reasonable doubt" (Id. at 2225). To show Pye's motive, the

defense wanted to pursue at trial the state of the marriage of Peggy

and Pye; however, the State repeatedly objected to the evidence (Id. at

2228). He recalled a witness named Rita Tacker, who was a friend of

Peggy's who had information about the marital trouble (Id. at 2229);

however, he was not permitted to question Tacker at trial about the

relationship between Peggy and Pye on hearsay grounds (Id. at 2231-32).

Stidham confirmed that he had never seen the note from Peggy to Pye,

which should have been disclosed under Brady (Id. at 2235). The note

hospitalized for the second time on October 30, 1988. In her police

is something he would have wanted the jury to know about, and is

consistent with the defense theme at trial (Id. at 2234-35). It

refuted the State's theory that although the marriage had its rocky

moments, "they were just two lovebirds at the time that this occurred"

(Id. at 2237). In addition, the note refuted the notion that the

problems in the marriage were related solely to the children (Id.), and

supported the argument to the judge that the hearsay evidence about the

marriage was reliable enough to be admitted (Id. at 2238; 2251-56).

For example, state of mind of a declarant is an exception to the

hearsay rule (Id. at 2239). He also would have used the note during

his impeachment of Detective Mincey, who testified that he came up with

no evidence suggesting that Pye had a motive and that the marital

trouble related only to the children (Id. at 2240-42). The note could

also have been used to impeach the many state witnesses who attributed

the trouble in the marriage to the children (Id. at 2243-47).

He recalled a witness named Laura Ervin, who, according to police

reports, had had a conversation with Pye's sister, Carolyn Dixon, on

Sunday, October 30, 1988, at which time Carolyn told Ervin that Peggy

had been poisoned with thallium (Id. at 2249; Exhibit 15). Stidham

recalled that the "time line" of when the conversation occurred did not

statement, Ervin remembered seeing Dixon in the afternoon at the Wal-

Mart. Laura distinctly recalled that she spoke with Carolyn on Sunday,

October 30th. The conversation with Carolyn was unexpected and

provocative, as she told Ervin on that date that Peggy had been

poisoned with "Thallum" (Defense Exhibit 15). What is significant

about this statement is that at the time that Dixon made her comment,

Peggy had not yet been diagnosed as having been poisoned; the doctors

did not suspect poison until November 1, 1988 (R. 1781-82). Moreover,

it was not until November 2, 1988, 3 days after Carolyn's comment about

thallium, that the lab determined that Peggy had been exposed to

thallium (R. 1784). Ervin confirmed her police statement during the

evidentiary hearing (1PCR 2418-19). The State called Dixon at the

hearing, who, although confirming having spoken with Ervin at the Wal-

Mart, testified that the conversation must have occurred sometime in

December because, in her recollection, it was not until December that

the doctors discovered that Peggy had been poisoned with thallium (Id.

at 3161). Again, however, the lab determined that Peggy had been

exposed to thallium on November 2, 1988, not in December.

statement had no value if he did not question anyone about it,

"otherwise, I would have" (Id. at 2333). However, this is just a

"general recollection" on this point, nothing specific (Id. at 2341).

that Travis Carr was yelling from his hospital room (with Pye and

Carolyn in the room) "they're trying to kill me" and "you tried it

once, and it didn't work, you're trying it again," such statements were

recalled that Detective Paul Schaill, who was the initial investigator,

believed that Pye was the main suspect; Schaill, however, was dismissed

from the case with "his investigation [being] far from concluded" and

replaced by Det. Mincey (Id. at 2262). Had the defense put on a case

in chief, Schaill "would have been the main witness, in my mind" (Id.

by the Polk County Sheriff's Office as a homicide detective (Id. at

3041). As lead detective in the Trepal investigation, Schaill,

assisted by lieutenant Juanita Crawford, were actively developing Pye

Carr as the suspect (Id. at 3044-45). Schaill was eventually replaced

by Mincey due to disagreements with the sheriff's office over the

direction of the case (Id. at 3045-46). He had never seen Exhibit 1,

which was the note from Peggy to Pye; the note would have provided

further evidence of motive on part of Pye Carr (Id. at 3047).

Although Stidham had "regular contact" with Mr. Trepal's wife in

the first few months, she was "very concerned" about the publicity

generated by the case and its impact on her, and his contact with her

waned over time (Id. at 2264-65). To the extent that George was a

suspect, "she was also a possible suspect, an obvious suspect" (Id. at

2266). No information about her being a suspect was brought out

because Mr. Trepal "was insistent" that "we not point the finger at

Diana" (Id. at 2266; 2270). However, they did point the finger at her

during closing arguments against George's wishes (Id. at 2272).

Stidham also knew that Diana had pending charges against her at the

time of her testimony for battery on a law enforcement officer, but she

was not questioned about it (Id. at 2274). She was also not asked

about the fact that she refused to give any testimony on Fifth

Amendment grounds in a wrongful death lawsuit brought by Pye Carr

against George Trepal (Id. at 2275-76). Further, she was not

questioned about the fact that, in 1990, she had been sued for an

Defense Exhibit 18 (Id. at 2306).

been arrested in North Carolina on November 17, 1990, for operating a

vehicle while subject to an impaired substance (Id. at 2286). He was

found guilty on February 21, 1991 (Id.). Other records introduced

below establish that Warren was again arrested in December, 1990, again

for driving subject to an impaired substance (Id. at 2287). He pled

guilty on March 6, 1991 (Id.). The records were introduced as Defense

Exhibits 20 and 21 (Id. at 2291). Mr. Trepal attempted to secure an

out-of-state subpoena for Warren, and the lower court issued the

necessary paperwork. However, Warren challenged the subpoena in North

Carolina, and a court in that State refused to honor the Florida

certificate of materiality.

incident at a local hotel where she battered and injured a female guest

have been used to show bias (Id. at 2312).

David Warren testified about Mr. Trepal's previous involvement

with a methamphetamine lab (Id. at 2282). Stidham believed Warren had

pending charges at the time he testified, but Warren had indicated in

his deposition that he had not, at least at the time of the deposition

(Id. at 2284). He did not know if Warren had been arrested between the

date of the deposition and his trial testimony, but it was the State's

criminal charges against a witness affects the witness' credibility

(Id. at 2288).

Stidham did not recall an incident during trial when Judge

Maloney instructed the jurors not to go down to the newspaper office

any more (Id. at 2301). The fact that jurors visited a newspaper

office during trial would probably be grounds for a mistrial, depending

on how things were going in the trial (Id. at 2303).

also performs toxicology risk assessment (Id. at 2750-51). Among his

other credentials, he is a Diplomate of the American Board of

Toxicology, of which there are only 1300 members worldwide (Id. at

2751-60). With no objection, Dulaney was admitted as an expert in

chemistry and toxicology (Id. at 2759-60).

Dulaney's review began from the "null hypothesis" that the

scientific information supported the verdict (Id. at 2761). He was

first asked to review the issue of the arsenic levels in the urine of

Peggy Carr, Travis Carr, and Duane Dubberly (Id. at 2765). Arsenic is

a highly toxic, but common, colorless and odorless poison, which can be

eaten, drank, breathed, and absorbed through the skin (Id. at 2766).

The symptoms of arsenic poisoning depend on the type, quantity and

quality of the arsenic (Id. at 2767). An acute dose of arsenic causes

massive diarrhea, bloody stools, gastrointestinal upset, and eventual

cardiac collapse (Id. at 2774). A chronic or slower exposure of lesser

quantities of arsenic over time "can look like the flu" but then leads

to neuropathy which is pain, numbness, and tingling in the hands and

feet (Id. at 2775). The latter is consistent with the Peggy's symptoms

upon her first hospitalization, although her urine was not screened for

flu-like symptoms improved, and the feeling in her hands and feet got

better (Id. at 2780).

range" which is classified as "normal" (Id. at 2782).

heavy metals (Id. at 2776). If a person is exposed to a low dosage of

arsenic over time and is not treated, but the exposure is terminated,

the person will get better because the body expels arsenic on its own

(Id. at 2779). This is what occurred to Peggy: she had been exposed to

low dosages of arsenic but was untreated; however, she was no longer

exposed to her arsenic source, got better, and was released from the

Peggy was re-hospitalized at Winter Haven Hospital on October 30,

1988, and a heavy metal urine screen revealed 616 micrograms of

arsenic, with the expected concentration being less than 25 micrograms

thallium (Id. at 2783-84). Duane's urine, collected November 16, 1988,

revealed 52 micrograms of arsenic, also an "elevated" level (Id. at

2785). There was no thallium analysis noted on the report (Id.).

Travis's urine, also collected November 16, 1988, revealed 63

micrograms of arsenic, "greater than twice what would be expected" (Id.

at 2786). Peggy was given another urine screening on November 15, and

still had 36 micrograms of arsenic (Id. at 2808).

Peggy's first complaint was on October 21, when she began to get

burning in the feet but not the hands, the State challenged Dulaney's

assertion that Peggy initially reported tingling in her hands upon her

first hospitalization, and challenged him to show him a medical record

indicating that Peggy had tingling in her hands (Id. at 2895-96). On

redirect, Dulaney pointed out that notes from both the admission nurse

and the doctor at Bartow Hospital, where Peggy was initially

hospitalized, revealed that her complaints included "numbness" and

"tingling" in her hands (Id. at 2935-36). Peggy had also reported to

her friend as well as her husband that her initial symptoms included

tingling in her hands (Id. at 2936-37).

consistent with arsenic poisoning and thallium poisoning (Id. at 2803).

flu-like symptoms and tingling in her hands and feet (Id. at 2788). On

October 22, she complained of chest pain, numbness in hands and feet,

and flu-like symptoms, all of which are "very characteristic" of

Bartow Hospital, but discharged 3 days later because she got better

(Id. at 2791). On October 28, Travis begins to get ill at home, and on

October 30, Peggy is re-admitted to Winter Haven Hospital because she

is very weak (Id. at 2792). Dulaney opined that it was at this time

that she has been exposed to thallium, in addition to an additional

exposure to arsenic as, upon re-admission, she had 20 times the normal

level of arsenic in her urine (Id.). The second exposure to arsenic

made the thallium more toxic (Id. at 2794; 2816-17). It is also known

that at the same time, Duane and Travis were getting sicker, and, in

Dulaney's opinion, they were exposed to thallium as well as arsenic

thallium in their system, but because they were possibly not exposed to

arsenic at an earlier time like Peggy was, they were not as weak, and,

due to their youth, were able to survive the thallium poisoning (Id. at

2801).

The urine screenings of Duane and Travis, done 2 weeks later, revealed

elevated arsenic levels, which is an "interesting diagnostic find"

because they had been hospitalized for 14 days and still had arsenic in

their urine (Id. at 2797). This indicated two possibilities: that they

had received a very high dose of arsenic before their hospitalization

and the later readings was the "tail end" of that, or that between

October 31 and November 14, "they're being given arsenic again" (Id. at

Dulaney opined that there had been two poisons associated with

these incidents because if Peggy had been exposed to thallium at toxic

levels prior to her first admission to the hospital, "she's not going

to get better" because thallium is "tough" to get rid of from the body

(Id. at 2798). Arsenic, however, can be fairly easily expelled from

the body, so you are going to get better if nothing else happens (Id.

at 2798). He summed up that Peggy was initially poisoned with arsenic,

got better, and was then, after being released from the hospital the

first time, was subsequently poisoned with toxic levels of thallium and

high dosages of arsenic (Id. at 2799). His opinion was supported by

the fact that Peggy's urine still reflected elevated levels of arsenic

arsenic in Peggy's system were "not incompatible with the normal from

eating oysters" (Id. at 2810). He opined that her levels of arsenic

were "absolutely" incompatible with the level of arsenic found in

oysters (Id. at 2811-12). The same opinion applied to the arsenic

found in Duane and Travis (Id. at 2813).

chemistry only would not be capable of analyzing these issues:

"[t]hat'd be like asking whether a paralegal can argue with a judge on

areas of law" (Id. at 2850-51).

Mr. Trepal was arrested; if any arsenic had been located in Mr.

Trepal's home, it would have been listed on the evidence logs (Id. at

2448). He could not recall if any arsenic had been located (Id. at

2449).

degree of scientific certainty, Peggy Carr, Travis Carr, and Duane

Dubberly were subjected to a separate, second poisoning attempt with

that the scientific evidence supported the verdict because "no one has

shown me anything to find a source of arsenic from the Defendant" (Id.

Dulaney was also asked to review the issue of the thallium

discovered under the sink in an apartment on Pye's property (Id. at

2823). Of the swabs taken by Florida health officials, one revealed 16

micrograms per liter of thallium from under a sink in an apartment on

Pye's property (Id. at 2839-40); all the other 280 swabs taken on

numerous items were negative (Id. at 2835-37). In Dulaney's opinion,

in light of the manner in which the swabbing was performed, this

reading is "indicative that thallium was there, and that the amount of

thallium that was collected in that swab is almost assuredly not all of

it" (Id. at 2841). To a reasonable degree of scientific certainty, the

thallium under the sink was not "naturally occurring" because it only

showed up in that one place "as opposed to everyplace else"; when you

have "naturally occurring" concentrations, "you find it at these kind

of low concentrations, but you find it in many different samples. You

don't find it in a single sample" (Id. at 2841-42; 2844-45).

identified the handwriting in Exhibit 1 as that of his mother (Id. at

3056). A month before Peggy first became ill, her communications with

Allen began to change, and she started showing interest in visiting him

in Tennessee, where he was serving in the Navy (Id. at 3074-75).

Shortly before she became ill, Peggy "made it known to me that she

wanted to come and stay . . . [I]t wasn't no more of her inquiring

about how to come, she wanted to come" (Id. at 3075). She was

"nervous," "wanted to be by herself," and that "she needed some time

away from the house" (Id. at 3078). Allen arranged for Peggy to come

and stay (Id. at 3078). He and Peggy also "developed a password to let

me know that she was on her way and when I could expect her" (Id. at

3078-79). At first Peggy did not explain the secrecy about her visit,

but "she later said that she didn't want Pye to know" and was "nervous"

and "scared" and "just wanted it to be a secret" (Id. at 3079-80).

Sharing her feelings with Allen was unusual, as Peggy generally kept

her problems to herself (Id. at 3081). Allen told Detective Mincey of

his mother's fear of Pye, but Mincey "just told me to hold that

thought" and "put that on the back burner for now"; Mincey never again

brought up the subject (Id. at 3087-88). If he had been asked, he

would have testified about this information at Mr. Trepal's trial (R.

3088-89). He agreed to testify at the evidentiary hearing "[j]ust to

tell my side" and "to tell everything I know and hope that all of the

truth gets out" and "to even look at Pye a little closer, you know,

just to make sure they see everything, weigh everything" (Id. at 3089).

their sons, Allen and Duane (Id. at 3109-10). He and Peggy divorced

around 1976, but they remained good friends (id. at 3110). About a

month or so before she became ill, Peggy told Larry she was having

trouble with Pye, that she was afraid of him and was thinking of

leaving him (Id. at 3113). When he heard that Peggy and the children

had become ill, he came to Florida and camped out in the hospital

because he "didn't want [Duane] to be alone with Pye Carr" (Id. at

3114). Larry had suggested to Detective Mincey that all of the family

members take lie detector tests "so that everyone won't be so afraid

around here" but Mincey said that they were not admissible in court

during this incident, and that Travis said "they" were trying to kill

him again, meaning both Pye and Carolyn (Id. at 3127).

(Id. at 3116).

Duane shared a room with Travis Carr in the hospital (Id. at

3117). Pye was also there with his son, but not every day and night

(Id.). He often saw Pye in the hospital parking lot drinking whiskey

and talking with his brother-in-law, Hal Dixon, who was married to

Carolyn, Pye's sister (Id. at 3117-18). Larry would see Carolyn at the

hospital "when Pye was there" (Id. at 3118). One evening, Larry was in

Travis and Duane's hospital room when Pye appeared at the door; Travis

hollered "Larry, get him out of here. He's trying to kill me" (Id. at

also recalled that after Pye would speak with law enforcement, he would

be chainsmoking and became "[v]ery restless, very nervous" (Id. at

3120).

Larry was worried about Duane's safety because when he would come

into the hospital room, "there was baked goods, Kentucky Fried Chicken,

you name it," on the beds with "these two boys laying there dying,

supposedly" (Id. at 3121). Larry spoke with the doctors, nurses, and

security, but no one knew how the food got into the room (Id. at 3121).

He later found out that it was Carolyn Dixon who was baking food and

bringing it to the kids (Id.). After this, the doctors ordered that no

one could visit the children without first signing in (Id. at 3122).

Larry is not convinced entirely of Mr. Trepal's guilt (Id. at 3125-26).

Had trial counsel asked, he would have testified on behalf of Mr.

Trepal (Id. at 3126).

Goreck had a conversation with FBI Agent Brekke on or about March 5,

1990, who reported that the lab had found thallium I nitrate in the

brown bottle found in Mr. Trepal's garage (Id. at 3137). Goreck "got

excited" and informed her supervisors (Id. at 3138-39). The next day,

her supervisor told her to reconfirm the finding with the lab because

Goreck had been "awfully excited" after talking with Brekke (Id. at

3139). She wrote an intelligence report reflecting her conversation

with Brekke and the lab (Id.). The report, authored on March 15, 1990,

reflects both conversations (with Brekke and with Havekost from the FBI

lab), as well as the fact that the brown bottle was found to contain

thallium I nitrate (Id. at 3141). She recalled that the first actual

lab report only indicated that the bottle contained thallium (Id. at

3141). She later received a lab report dated April 23, 1990,

indicating that the bottle contained .64 grams of thallium nitrate (Id.

at 3143; 3146). Another lab report dated July 9, 1990, revealed that

the brown bottle contained thallium I nitrate (Id. at 3147). Prior to

her conversation with Brekke on March 5, 1990, she did not know that

the bottle contained thallium of any sort (Id.). Prior to receiving

He explained that sometime in March, 1990, he got a call from Brekke,

who told him that the brown bottle contained thallium I nitrate (Id. at

3149; 3151). That same day he got a call from Goreck, who gave him the

same information (Id. at 3149). A few days later, Mincey himself

called the lab and spoke with either Roger Martz or Donald Havekost,

who confirmed that the bottle contained thallium I nitrate (Id. at

3150; 3153). The discovery of thallium I nitrate in the bottle was

"very significant" for the case, and it led to Mr. Trepal's arrest

shortly thereafter (Id. at 3153). Mincey did not document his

conversations with the FBI lab (Id. at 3154-55).

the lab report, no arrest warrant was sought or received for Mr. Trepal

with respect to the murder of Peggy Carr (Id.). She never personally

turned over her intelligence report to defense counsel, but made the

the sister of Pye Carr (Id. at 3159). Dixon knows Laura Ervin because

she once dated her brother (Id. at 3160). Dixon confirmed having had

the conversation with Ervin at a Wal-Mart "several weeks" after Peggy

and the children were hospitalized (Id. at 3160-61). She told Ervin

that the family were in the hospital and were sick (Id. at 3161). When

Peggy and the kids were admitted, Dixon and the others had been told

that they had been poisoned with one of three things (Id. at 3161).

She believed it was in December that the family was informed that it

was thallium (Id. at 3161).

performance in numerous cases, including the 1993 World Trade Center

bombing and the Oklahoma City bombing, he received a formal censure

only for his work in the O.J. Simpson case and Mr. Trepal's case. As

to Mr. Trepal's case, the censure letter provided in part:

In your response to the OIG findings, you stated that an

examiner may properly offer an "opinion" about the

identification of a questioned substance that is stronger

than the conclusions described in the laboratory report.

However, you also admitted that, based on some of the test

results, your testimony about drug residues in a bottle of

thallium nitrate found in Trepal's garage was "debatable."

You admitted in your interview with the OIG, moreover, that

your case notes were inaccurate and imprecise, and that some

charts were labeled incorrectly.

a Supervisory Special Agent, you are expected to provide a

from the Office of Inspector General [OIG] was released, Martz was the

unit chief at the FBI lab’s chemistry/toxicology unit, a position he

held when he testified at Mr. Trepal's trial (2PRC 2837-38). Following

the release of the preliminary report, Martz was put on "temporary

assignment" doing "physical security" at an FBI field office (Id. at

2835-36). Martz was issued a letter of censure for his "work" in Mr.

(Defense Exhibit 2) (emphasis added).

going to be testifying that they believed the Coke bottles contained

thallium I nitrate; he was also aware that the Coca-Cola analysts had

determined that thallium I nitrate did not alter the appearance of

Coca-Cola, but thallium III nitrate did change the appearance (Id. at

2896).

Martz explained that Donald Havekost was the primary examiner who

did the initial analysis on Q1, Q2, and Q3 (samples from 3 Coca-Cola

bottles), and determined that thallium was present and quantitated the

amount (Id. at 2881). Martz was asked to determine what type of

thallium was added to the Coke (Id. at 2882; 2995). At that point, the

only information Martz had was that a local lab believed that thallium

anyone at the Coca-Cola laboratory, although he conceded that he told

the OIG interviewers that he did (Id. at 2890).

Martz identified his handwritten work notes which did not

indicate the dates on which he conducted the various testing (Id. at

2887; 2892; 2898). They did indicate that he conducted a screening

test called the diphenylamine (DP) test on samples Q1, Q2, and Q3, and

compared them against sample K61, which is unadulterated Coke (Id. at

2898-99). According to his notes, the DP test was "positive for Q1

through Q3 and negative for K61," meaning that the samples "could have"

nitrate will give a positive result on a DP test, and conceded that he

could not say that no other salt such as chlorate could give a positive

result (Id. at 2908-09). Moreover, depending on how the DP test is

the results could be manipulated (Id. at 2909-12).

samples on the silver nitrate test, and negative for all samples on the

barium chloride test (PCR. 2916); however, he acknowledged that he had

no such recollection at the time of his interview with the OIG, and

that his "recollection" as to the results "came to him" on the witness

Martz then conducted a "silver chloride" test, which revealed the

results "same for all" (Id. at 2912). He conceded there was no test

called the "silver chloride" test and his notes were wrong; the test he

actually ran was a "silver nitrate" test, which looks for the presence

of chlorine (Id. at 2913). His notes also revealed that he conducted a

"barium nitrate" test, but he again conceded that while there "may be"

such a test, "it’s not the one that I ran" (Id.). The test actually

conducted was a "barium chloride" test, which tests for the presence of

sulfates (Id. at 2914). As to the "silver nitrate" test he actually

ran and the results which indicated "same for all," his notes did not

indicate what "same for all" meant (Id.). As to the "barium chloride"

test he actually ran, his notes also revealed that the results were

"same for all," but did not reveal whether "same for all" meant a

positive or negative result for the presence of sulfate (Id. at

stand (Id. at 2916-18).

nitrate was added to the Coca-Cola").

test, thallium nitrate was added to the Cokes, "would not be accurate"

(Id. at 2924), and that what he told the jury was incorrect (Id. at

2925). In light of his hearing testimony, Judge Bentley's order later

found that "Martz testified falsely at trial when he stated that a

positive result on the DP test will yield a blue color indicating the

presence of nitrate. In fact, the blue color indicates the presence of

an oxidizer which could, among other things, be nitrate" (Id. at 2678).

presence of not only nitrate, but also chlorine, phosphate, carbonate,

and other substances Martz could not identify (Id. at 2984-85). IC

testing on the Q2 sample revealed the presence of not only nitrate, but

also chlorine and other substances that Martz could not identify (Id.

at 2985-86). These results were never disclosed to defense counsel.

At trial, Martz testified that one of the bases for his

conclusion that thallium nitrate had been added to the Cokes was the

acknowledged at the evidentiary hearing that nitrate is not the only

addition to the DP test, he testified at trial that he relied on the

ion chromatography [IC] test to conclude that thallium nitrate was

not know what type of reagents were used in conducting the IC test,

that he himself did not even run the IC test on the samples, and could

(R. 3558). Below, Martz testified that he never told trial counsel that

he personally did not run many of the tests because he was not asked

the question (2PCR. 3062).

he had run Q3 on the IC. Withholding information can constitute a

falsity. . . That is the case here" (Id. at 2679).

that his conclusion that Q1 through Q3 contained thallium nitrate was

based solely on the DP and IC tests, and that this constituted his

"entire involvement" in the investigation. He never disclosed that he

conducted additional testing, which, as the lower court found, was

"particularly important because the defense could have used this

information to suggest that Martz was not satisfied with the initial

results and sought additional data" (Id. at 2679).

probes "where you place a small sample and do a probe cum and then heat

it up"; other ones were liquid injections done using a wire, a

technique that is not done in most forensic laboratories (Id. at 2935-

36). Martz knew no one else that conducted the liquid testing using a

wire, and "[n]o one to my knowledge in the FBI laboratory had done it

also admitted that he falsely told the jury that he performed IC

testing on all three samples, when in fact "I had only tested two of

In addition to the DP and IC testing on the Coke samples that he

testified to at trial, Martz acknowledged conducting other testing on

the samples, including mass spectrometry [MS], x-ray diffraction [XRD],

scanning electron microscopy [SEM], and liquid chromatography [LC] (Id.

before I did it" (Id. at 2927). This technique was also not something

which had been peer reviewed in publications (Id. at 2938).

outside information from law enforcement can be useful, for example,

"[i]f we're working on a case where they think a very unusual poison

was used and they can tell us what that is, we will target for that

compound" (Id. at 2994).

other than nitrate (Id. at 2962-64).

MS testing to determine what salts of thallium were present in the

samples and what was present in unadulterated Coca-Cola (Id. at 2930).

However, he did not come up with thallium nitrate but instead "a lot of

different salts" such as thallium sulfate, thallium phosphate, thallium

oxide, and thallium chloride (Id. at 2940; 2948-55; 2958-60). Because

he was not able to find nitrate, the MS testing "didn't work" in his

view and "was not used for any conclusion I made in this case" (Id. at

Martz also did IC testing on samples K61 and K66, which were

samples of unadulterated known Coca-Cola, in order to determine what

known Coca-Cola contained (Id. at 2970). These tests showed the

presence of nitrate (Id. at 2972; 2974; 2985). However, Martz did not

believe that Coca-Cola truly contained nitrate because he got a

negative result on the DP test when he tested K61 (Id.). When

confronted with the disparity between the IC test indicating the

known Coca-Cola, that could explain the presence of the nitrate ion in

the adulterated Cokes, thus raising questions about whether it was

thallium nitrate put into the soda or some other salt of thallium.

Martz affirmatively lied to the jury when asked about this specific

issue by the prosecutor (R. 3569). Martz admitted at the hearing that

"one test gave an indication and the other didn't" (2PCR 3006). On

this point, Judge Bentley found that "Martz misled the jury when he

testified that nitrate was not present in unadulterated Coke. In fact,

IC testing revealed a substance which could have been nitrate" (2PCR.

2678), a fact which "would have been useful to the jury" (Id.).

airplane analysis (2PCR. 3031). Later at the hearing, FBI scientist

Thomas Jourdan testified to the results of the quantitative analysis he

also conducted; Jourdan's testimony in this regard, however, was

rejected by Judge Bentley as being "not credible" because it relied on

flawed charts and unreliable data gleaned from Martz's inaccurate and

incomplete testing (Id. at. 2678; 2680).

presence of nitrate in known Coca-Cola and the DP testing which

presumptively determined a lack of nitrate, Martz explained that either

there was not "enough" nitrate in the Coca-Cola or the DP test was not

"sensitive enough" to detect it (Id.). He had no explanation for the

difference in the tests with respect to the presence of nitrate in

On the airplane to Florida for the evidentiary hearing, Martz

performed a quantitative analysis of the nitrate he identified in the

Q1-Q3 samples (Id. at 2990). Prior to trial, he "didn't think it was

possible" to do the analysis because he had "misread" one of the charts

Martz was questioned about his deposition testimony which

explained why he wrote one thing in his notes and testified to

something else. Any attempt to say they mean the same thing does not

hold water" (2PCR. 2679).

centered on the actual FBI Lab Report issued in the case on July 10,

1990. At deposition, Martz testified that the report indicated that he

"identified" the nitrate ion in the adulterated samples, and concluded

that Q1 through Q3 "contained thallium nitrate" (Id. at 2998). In his

dictation, he only concluded that the samples were "consistent" with

thallium nitrate being added, which are "[d]ifferent words" than the

definitive conclusion that the samples "contained" thallium nitrate

(Id.). He conceded that "when you say something contained, you're

implying that it's in there for sure" and is a stronger statement than

"consistent with" (Id. at 2999). Martz contended that perhaps the

transcript of his deposition was wrong, and he "should be given the

benefit of the doubt that maybe I didn't say that" (Id. at 2999-3000).

However, he acknowledged that at trial, he also gave the stronger

statement that thallium nitrate was "added to" the Cokes (Id. at 3000).

Martz did not think that the two different conclusions were "much

Aside from the Coke samples, Martz was also asked to identify a

powder located in sample Q206, which was a small bottle located in Mr.

Trepal's vacated garage after having moved out of his house (Id. at

shed was located on Mr. Trepal's Alturas property, which he eventually

moved out of in November, 1989, over a year after the poisonings. Id.

at 1365. Shortly after moving, Mr. Trepal agreed to rent the Alturas

property to "Sherry Guin," who was, in reality, Susan Goreck, the

undercover detective. Goreck, posing as Guin, had previously entered

the garage before Mr. Trepal moved out and was familiar with its

interior. Id. Once the "rental" arrangement was finalized in

December, 1989, law enforcement entered the property and "found" the

bottle in a drawer of a workbench. Id. In actuality, the drawer from

which this small bottle was recovered was filled with matting, paper

cloth stuff, and was likened to a rat's nest (R. 7355, 7357)

(Deposition of Brad Brekke).

infrared spectrophotometry [IR] (Id. at 3008). As with the Coke

samples, Martz himself did not run the XRD testing on Q206 (Id.). He

concluded that Q206 contained thallium nitrate (Id. at 3009). When

asked about the fact that the charts reflecting the results of the XRD

run on Q206 revealed peaks showing other substances, Martz explained

that he was "not an expert on x-ray diffraction" (Id. at 3010).

As to the IR testing on Q206, Martz indicated that it also

revealed thallium nitrate (Id. at 3012). When confronted with the

actual charts which showed discontinuity in the peaks, he admitted that

"Thallium nitrate is a difficult compound to run an IR on," but was

personally "satisfied" that the chart showed a "match" for thallium

nitrate (Id. at 3012-13). He also admitted that he told the OIG

investigators that his results as to Q206 were "debatable" (Id. at

3013).

review Martz's work and "offer a defense" on behalf of the FBI to the

OIG findings (Id. at 3081-83). He and Burmeister had to speak with

Martz because they were not able to figure out his notes and charts,

which were "deficient in detail" (Id. at 3086; 3089; 3092; 3095). As

an FBI lab unit chief, Jourdan would not have accepted Martz's

dictation because of the faults with his notes and charts, as well as

the fact that he relied solely on the DP and IC tests (Id. at 3106).

Martz should not have testified to the contents of Q3 without having

conducted any tests on it (Id.) Jourdan also testified that the IC

charts revealed that there was a small amount of nitrate in known Coca-

Cola (Id. at 3115-16).

In Jourdan’s view, there is a difference between saying something

is "consistent with" as opposed to "identified as"; "identified as"

demonstrates a "high level of confidence, ruling out other

possibilities, essentially exclusively," whereas "consistent with" is a

"less confident" conclusion (Id. at 3117). As a unit chief, Jourdan

would "have a problem" with one of his examiners concluding in

dictation that something was "consistent with" but testifying in court

that it was "identified as" because the latter is a "considerably

stronger statement" (Id. at 3118). If he had been the unit chief, he

would not have signed out the report in this case based on the work

he testified that he would not have rendered the opinion that thallium

nitrate was added to the Coca-Colas (Id. at 3451-52). Judge Bentley

later rejected Jourdan's opinion on this point as "not credible"

because his role in the OIG investigation "colored" his testimony, as

well as the fact that his analysis was grounded on admittedly

inaccurate and flawed notes and charts (Id. at 2680).

that Martz did (Id. at 3120).

In his opinion, thallium nitrate was added to Q1 and Q2; he could

conclusions, Jourdan conducted a stoichiometric analysis relying on the

height of certain peaks on the charts which he measured with a ruler;

based on his assessment of the peak height, Jourdan believed that Q1

and Q2 contained thallium nitrate (Id. at 3128-30; 3138-39). He did

acknowledge that the issue of whether thallium chloride had been added

had not been "fully explored" (Id. at 3141-42).

unit at the FBI lab, Burmeister took over the position that Martz

previously held (Id. at 3163-64). The IC charts relied on by Martz

lacked sufficient standards "that I would have liked to have seen" and

was a deficiency (Id. at 3167-70). He was also "not sure exactly" how

the samples that Martz used for the IC testing were prepared, which is

an important factor to determine how the system is operating (Id. at

3172-73). The charts also lacked information detailing whether the

proper pre-testing procedures were employed on the machinery (Id. at

reasons as with Jourdan (Id. at 2678-80).

3173-74).

Burmeister would not have testified at a trial that thallium

nitrate had been added to Q3 when no IC test had been run on Q3 and the

IC was the basis for the opinion as to Q1 and Q2 (Id. at 3184). Based

on the stoichiometric analysis testified to by Jourdan, Burmeister

Without the stoichiometric analysis conducted by Jourdan, he would be

less confident about his opinion that thallium I nitrate was added to

the Cokes (Id. at 3198).

of Martz's testing as well as the stoichiometric analysis conducted by

Jourdan (Id. at 3208-10). According to Dulaney, Jourdan's opinion that

thallium nitrate was in the Cokes was premised on assumptions never

proven by Martz's work (Id. at 3212-13). Because the process by which

Martz, and later Jourdan and Burmeister, ruled out the presence of

sulfate or chloride failed to meet scientific standards, "there's no

way that from this information alone that you could have eliminated

chloride or sulfate in Coca-Cola" (Id. at 3263).

The second problem with Jourdan's analysis is that the peaks on

the chromatogram from the IC testing were not stable, and because no

standard was run and there is no stable system, it is not possible to

determine the contents (Id. at 3214). Moreover, the work in this case

is based on more than one set of unknown circumstances: not only is it

not known where chloride and sulphate come out on the tests because no

known standards were run, but Coca-Cola itself is unknown, particularly

when various thallium salts of unknown origin are added to it (Id. at

3218-20). As Dulaney explained, "if you're going to base things on

supposition, then everything else carries that stigma. Everything"

(Id. at 3224).

Dulaney also discussed the length of the peaks on the charts that

Jourdan used in formulating his stoichiometric analysis, explaining

that Jourdan's conclusion was based on a "simple mechanical error"

because the pen that was recording the peak on the chart ran out of

paper, thus failing to register the peak's true height (Id. at 3226-

27). In other words, the pen "hits the top [of the chart] and goes no

further [] because the pen can go no further. It's a simple mechanical

error" (Id. at 3227). Because one cannot tell "how far that pen would

have gone if it could have," one cannot make the calculation that

Jourdan did (Id. at 3228-29). The machine error, compounded with

Martz's failure to run known standards in Coca-Cola, led to unwarranted

scientific assumptions by the FBI because "when you start throwing

doubt upon doubt upon doubt, the scientific accuracy level gets chipped

away" (Id. at 3237). All that can be said about Q1 and Q2 is that they

contain thallium; as to Q206, there is "some debate" as whether it

Company revealed that the addition of salts other than nitrate did not

result in any detectable change in the appearance of the Coke (Id. at

3267-68). This is consistent with Coca-Cola chemist, Frederick Reese,

who testified at trial that he conducted tests to determine if various

forms of thallium would dissolve in Coke without changing its

appearance (R. 3402). Reese determined that Thallium Sulfate, Thallium

Maleanate and Thallium I Nitrate went into solution in Coke without

changing its appearance, but that Thallium III Nitrate turned Coke a

muddy color (R. 3405-06). Thus, this Court's statement on direct

appeal that the evidence at trial was "that of the chemical forms of

thallium that exist, only one form can be introduced into Coca-Cola

without producing noticeable changes in the drink," Trepal, 621 So. 2d

at 1364, is factually incorrect, as Reese clearly testified that when

he put Thallium Sulfate and Thallium Maleanate in Coke, "The product

looked the same" (R. 3405).

contained thallium I nitrate (Id. at 3228).

Dulaney summed up that "based upon the standards in the

scientific community, [Martz's work] certainly would not meet those

standards because of the difficulties that we've talked about here"

(Id. at 3255). Based on Martz's work, no conclusion can be made to a

reasonable scientific certainty that thallium nitrate was added to Q1

of nitrate in known Coca-Cola also did not meet reasonable scientific

standards (Id. at 3270). It is not reasonable for scientists to

reach conclusions based on possibilities, and that what occurred in Mr.

Trepal's case was "junk science" (Id. at 3295). The problem with using

possibilities is that they are not based on any scientific methodology

and are open to interpretation based on the examiner's bias (Id. at

credible" (Id. at 2678).

testing in this case was not a competent examiner, and that he himself

would not rely on his results (Id. at 3428). The charts in Mr.

Trepal's case were an example of the shortcomings of the examiner who

ran the IC tests (Id. at 3429).

as chloride could have been added to the Coke, but the reaction with

the Coke could have caused another salt such as nitrate to come out

(Id.). Thus, "I'm left with this concern as a chemist, as a scientist,

the Forensic Justice Project in Washington, D.C. (Id. at 3314). He

entered the FBI Lab in 1986, and left in 1998 (Id.). He had specific

experience and training with the scientific machinery used for the

testing of the evidence in Mr. Trepal's case (Id. at 3315-19).

Whitehurst opined that the IC work relied on by Martz to opine that

thallium nitrate was added to the Cokes failed to meet acceptable

"disturbed" about Martz's work is that "I don't know what will happen

when you put a strong oxidizing agent into Coca-Cola," particularly due

to "our ignorance of thallium chemistry" (Id. at 3393). Although

Whitehurst did not doubt that thallium was found, "I don't know how

without research we can determine what thallium salt it was" (Id. at

there are too many unknowns here" (Id. at 3395).

credible" (Id. at 2678).

Whitehurst also reviewed Martz's work on Q206 (Id. at 3398). It

was not scientifically reasonable to rely on the XRD testing to

conclude that Q206 contained essentially pure thallium I nitrate,

because "the chart says there's two things in there" (Id. at 3399).

Essentially, "it's kind of like maybe not quite making a blue

Volkswagen into a red Chevy, but you know, if it is adjusted a little

bit, it can call this thallium nitrate" (Id. at 3401-02). That

conclusion, however, is premised on the fact that "the computer program

sort of twists the data just a bit" (Id. at 3401). He also reviewed

the FTIR testing conducted on Q206 in order to see where Martz was able

to identify thallium nitrate; however, he was "concerned about the

quality of the spectra" from the FTIR tests (Id. at 3403). The charts

suggested that "the sample was prepared improperly" because of the

abnormally vacillating peaks and shapes of the spectrum of the charts

(Id. at 3404). All the readouts establish is "consistency" with the

"presence" of thallium nitrate, which would need to be re-confirmed to

the poor quality of the sample preparation and the spectra (Id. at

3405). Opining that the substance in Q206 is consistent with the

presence of thallium nitrate, however, is not the same as opining that

thallium should have been peer reviewed in 1988-90 (Id. at 3410).

Although the machines themselves that were used were well established,

the application of certain materials to the machines must also be peer

reviewed: "Can we apply what we're doing to an unknown material, Coca-

Cola, and undefined reactions between materials that are thallium based

which we can feel confident about, but what are they and what will

happen?" (Id.). Because these aspects were lacking, "we end up in this

environment right here today doing peer review for the first time" (Id.

at 3411). Because Martz's work was not peer reviewed, "therefore there

are these questions that are associated with it" (Id. at 3412).

relied on by Martz was "problematic," Whitehurst could not, to a

reasonable degree of scientific certainty, conclude that thallium I

nitrate was in Q206 (Id. at 3431). Essentially, "we didn't know enough

about thallium chemistry, and we didn't do enough research to find out"

the Coca-Cola bottles and their relationship to one another . . .

[were] the most important part of the case" because they were "the only

thing that linked George Trepal in anyway to this crime" (Id. at 3510).

Without the Q206 bottle, Stidham did not believe that the State could

legally prove its case (Id. at 3510-11). The particular kind of

thallium that Martz testified was contained in the Q206 and Coke

samples was also important to the case and something which the State

"made a big deal about" at trial (Id. at 3511).

The defense did not have the notes and charts of Martz's testing

and would "absolutely" have expected them to have been disclosed (Id.

at 3513). "[H]ad we been able to cast any doubt on the appropriateness

of the scientific testing, I think it would have been significant in

the trial" (Id. at 3514; 3515). Q206 and the thallium in the Cokes

were "the closest thing to direct evidence that existed. Everything

else was just hype" (Id. at 3515-16).

Had the defense known of this information, it would have led to a

Frye challenge to the Martz's conclusions (Id. at 3516). Moreover,

without the appropriate testing on the thallium by the FBI, the

admissibility of Mr. Trepal's prior conviction and the testimony of

Richard Broughton could have been affected, because they depended on

the link between the salt of thallium found by Martz and the

methamphetamine production process that Broughton testified about (Id.

at 3517-19). As he explained, "if what the FBI lab had found was not

something that could have been used in the process of manufacturing

methamphetamine, that would have been further grounds to keep it out of

evidence" (Id. at 3519). The defense hired an expert from Georgia Tech

to evaluate the evidence, although the expert was doing different

examinations than the FBI was (Id. at 3529-30).

Martz's notes or charts (Id. at 3538). Based on the OIG report, there

were "certainly many matters that not only would have been proper for

cross-examination at trial, but would have been subject for pretrial

motions for exclusion of not only his testimony but perhaps other

witnesses that dovetailed or coattailed him in the trial" (Id. at

3540). Martz did "sloppy work" which "bring[s] to my mind to question

the validity of the results" (Id. at 3539-40). Connor would have

brought a Frye challenge to the evidence, and used it to impeach

Martz's conclusions if the Frye challenge had been unsuccessful (Id. at

3567-69).

The fact that Martz conducted more tests then he indicated in

deposition would "absolutely" have been important to effectively

question him (Id. at 3541). He also would have wanted to know why

Martz did not test Q3 but testified that he had (Id. at 3541-42).

Connor also explained the importance to the case of the specific salt

in the thallium: "the bottom line significance of that is if there is

a particular salt of thallium in the Coke bottles and a different salt

of thallium in the Q206 bottle, then it would certainly be obvious that

the thallium in the Cokes didn't come from the Q206 bottle" (Id. at

3542). It would have been significant to know if the three Coke

bottles contained a substance other than thallium nitrate (Id. at

3543). It also would have been significant to know if Martz's testing

revealed that known Coca-Cola had nitrate in it: "that goes to the

question of, okay, you found nitrate in the Cokes. Did Coke put it

there, or did someone else put it there?" (Id. at 3544). Georgia Tech

did not conduct the same tests that the FBI lab did (Id. at 3544-48).

Georgia Tech's work would not have precluded the defense from attacking

the FBI testing, had the information about Martz been disclosed (Id.).

1. Due to the combined effects of the admission of false

scientific testimony, withholding of exculpatory evidence, and

ineffective assistance of counsel, Mr. Trepal did not receive a fair

adversarial testing at the guilt phase. Significantly, the lower court

found that FBI chemist Roger Martz committed perjury at Mr. Trepal's

trial about the results of the only direct evidence of Mr. Trepal's

guilt: the contents of the Coca-Cola bottles consumed by the victims,

and a bottle found in Mr. Trepal's vacated garage. Moreover, despite

the suggestion by a retained pathologist that the defense team needed

to hire an expert toxicologist, no toxicologist was retained. This

deficiency severely prejudiced Mr. Trepal in a myriad of ways. The

defense also failed to present substantial evidence relating to other

suspects, including Pye Carr, his sister, Carolyn Dixon, and Mr.

Trepal's wife, Dr. Diana Carr. The State also withheld exculpatory

evidence, all of which would have been important information for the

jury to know.

2. The State never disclosed that the Polk County Sheriff's

Office, long before Mr. Trepal was arrested, was obsessed about making

a movie about the case. Discussions in the department were ongoing as

to the potential for a movie, including discussions that if Mr. Trepal

was not arrested, no movie could be made. The lower court erroneously

concluded that, absent direct evidence that a contract had been signed

prior to trial, the claim merited no evidentiary hearing.

Considerations of fame and fortune played a role in the ultimate arrest

of Mr. Trepal, and the jury should have been entitled to weigh this

information.

3. The trial record reveals that jurors went to the local

newspaper office during trial to inquire about a picture that appeared

in the paper. Because neither trial counsel nor the trial judge

recalled what had occurred, the lower court denied relief. However,

Mr. Trepal had sought permission to call the jurors at the evidentiary

hearing, but his request was denied. This claim should be remanded for

a hearing at which time the jurors can be called to testify.

4. Trial counsel were burdened by an actual conflict of

interest because they represented Mr. Trepal, who was married to one of

the key suspects in the case, Dr. Diana Carr, who was also paying the

substantial legal fees. The lower court erred in summarily denying

this claim and finding it procedurally barred, for it could not have

been raised on direct appeal.

5. No adversarial testing occurred at the penalty phase. No

evidence was presented by the defense. Despite having the unique

opportunity to present lingering doubt evidence due to the stipulation

by the State, no such evidence was adduced. Moreover, a number of

family members, Mensa acquaintances, and expert witnesses were

jurors confessed that "that odd club of his called Mensa -- scared her

from the very beginning. [The juror] said she believes Mensa has

'voodoo ceremonies' during meetings." Mike McLeod, "Murder, He Wrote,"

available who could have humanized Mr. Trepal. As a result, confidence

is undermined in the jury's 9-3 death recommendation.

6. Public records should be disclosed to Mr. Trepal, including

the file relating to a confidential informant, withheld records from

the State Attorney's Office, and "hundreds of hours" of witness

interviews taken by Jeffrey Good, who, along with Susan Goreck, wrote a

nonfiction account of Goreck's exploits in investigating Mr. Trepal's

case.

Mr. Trepal's jury was presented with some 80 prosecution

witnesses, many of whom testified more than once. The jury was

presented with no defense witnesses. The prosecution presented a onesided

case full of salacious innuendo and false evidence, and preyed on

the jurors' emotions by portraying the Mensa organization as a "voodoo

while the existence of evidence disproving guilt was argued as

insignificant. Unbeknownst to the jury, the Sheriff's Office had been

interested in pursuing a book or movie deal about the case; once the

conviction was returned, the principal law enforcement officers, Susan

allegations in his first 3.850 motion. Thus, those allegations must be

taken as true at this juncture, and a hearing is warranted if the files

and records do not conclusively refute the allegations. Lightbourne v.

Dugger, 549 So. 2d 1364 (Fla. 1989). Mr. Trepal submits that a new

trial is warranted on the issues which were resolved at the evidentiary

hearings, but does not waive his argument that a hearing should have

been granted and should be granted on the remaining allegations.

Goreck and Ernest Mincey, began shopping with Hollywood producers for

the rights to the story, and a contract was eventually signed. The

only experience any of Mr. Trepal's legal team had in defending a

murder case consisted of one attorney having done a murder case "a good

thirty years" before Mr. Trepal's trial. In short, Mr. Trepal's trial

was the ultimate "sacrifice of [an] unarmed prisoner [] to gladiators."

United States ex rel. Williams v. Twomey, 510 F.2d 634, 640 (7th Cir.

1975).

Due to the singular and combined effects of false and

inadmissible scientific evidence, the withholding of exculpatory

evidence, ineffective assistance of counsel, and newly discovered

evidence, Mr. Trepal did not receive an adversarial testing. Giglio v.

United States, 405 U.S. 150 (1972); Brady v. Maryland, 373 U.S. 83

(1963); Strickland v. Washington, 466 U.S. 668 (1984); Jones v. State,

591 So. 2d 911 (Fla. 1991); Frye v. United States, 293 F. 1013 (D.C.

Cir. 1923). The overwhelming evidence adduced at the evidentiary

lower court, establishes that a new trial is warranted.

Way v. State, 760 So. 2d 903, 913 (Fla. 2000).

performance in failing to have an expert to be present at trial to

advise them of the appropriate testing procedures and to impeach

Martz's conclusions (2PCR. 2687).

found that Roger Martz's "conduct at trial was outrageous and shocking"

because he testified falsely and misled the jury (2PCR. 2682). His

evidentiary hearing testimony was likewise "evasive and misleading"

(Id. at 2678). The court also found that "[t]he testing results of the

Coke samples and Q206 were the only direct evidence of Trepal's guilt,"

that "if Martz had testified truthfully the only direct evidence in the

case would have been greatly weakened," and that "[t]here is no doubt

that the data available at the time of trial did not support the

opinion Martz offered and that he knew it" (Id. at 2679-80). Despite

these findings, which are due deference on appeal, Stephens v. State,

was warranted under either a Brady or Giglio analysis because there

existed "strong" circumstantial evidence to support the convictions

and relief is warranted.

counsel known of the withheld information regarding Martz's work in

challenge to Martz's conclusions had they known of the information that

has since come to light (2PCR. 3561; 3567-69).

the technique is sufficiently established to have gained general

acceptance in the scientific field. Hayes, 660 So.2d at 264; Ramirez,

651 So.2d at 1167; Frye, 293 F. at 1014.

Court's adoption of Frye as the basis for evaluating the admissibility

of scientific testimony. See Brim v. State, 695 So.2d 268, 271 (Fla.

this case, not to mention his false and misleading testimony, a

pretrial challenge pursuant to Frye would have been made and would have

directly, it cannot be disputed that a Frye challenge, if made, would

have been successful, and Martz's testimony would have been excluded

based on the lower court's findings regarding Martz's work. This