TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . ii

REPLY TO ARGUMENT I . . . . . . . . . . . . . . . . . . . . . 1

A. MARTZ'S ROLE AND THE IMPORTANCE OF THE KIND OF THALLIUM

CONTAINED IN EVIDENCE AT ISSUE IN THESE PROCEEDINGS. . . 1

B. FRYE ISSUE. . . . . . . . . . . . . . . . . . . . . . . 8

C. GIGLIO ISSUE. . . . . . . . . . . . . . . . . . . . . . 14

D. BRADY ISSUE. . . . . . . . . . . . . . . . . . . . . . . 23

E. FAILURE TO HIRE TOXICOLOGY EXPERT. . . . . . . . . . . . 27

REPLY TO ARGUMENT II . . . . . . . . . . . . . . . . . . . . 30

REPLY TO ARGUMENT III . . . . . . . . . . . . . . . . . . 33

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . 35

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . 35

Alcorta v. Texas,

355 U.S. 28, 31-32 (1957) . . . . . . . . . . . . . . . 16

Brady v. Maryland,

373 U.S. 83 (1963) . . . . . . . . . . . . . . . . . 30, 31

Briscoe v. LaHue,

460 U.S. 325 (1983) . . . . . . . . . . . . . . . . . . 19

Buenoano v. State,

708 So. 2d 941, 948 (Fla. 1998) . . . . . . . . . . . . 22

Buenoano v. State,

708 So. 2d 941, 949 n.5 (Fla. 1998) . . . . . . . . . . 24

Cannady v. State,

620 So. 2d 165, 170 (Fla. 1993) . . . . . . . . . . . . 15

Correll v. State,

698 So. 2d 522 (Fla. 1997) . . . . . . . . . . . . . . . 18

Correll v. State,

698 So. 2d 522, 526 (Fla. 1997) . . . . . . . . . . . . 17

Craig v. State,

685 So. 2d 1224, 1229 (Fla. 1996) . . . . . . . . . . . 10

Curran v. Delaware,

259 F. 2d 707, 713 (3d Cir. 1958) . . . . . . . . . . . 20

Davis v. Alaska,

415 U.S. 308, 316 (1974) . . . . . . . . . . . . . . . . 32

Driscoll v. Delo,

71 F.3d 701, 709 (8th Cir. 1995) . . . . . . . . . . . . 28

Ex Parte Adams,

768 S.W.2d 281, 291-92 (Tx. Ct. Crim. App. 1989) . . . . 20

Ex Parte Castellano,

863 S.W.2d 476, 480-81 (Tx. Ct. Crim. App. 1993) . . . . 21

Giglio v. United States,

405 U.S. 150, 154 (1972) . . . . . . . . . . . . . . . . 15

Hamann v. State,

324 N.W.2d 906 (Iowa 1982) . . . . . . . . . . . . . . . 21

In the Matter of an Investigation of the W. Virginia State Police

Crime Lab, Serology Division,

190 W. Va. 321, 325,

438 S.E.2d 501, 505 (W. Va. 1993) . . . . . . . . . 21

Jones v. Kentucky,

97 F. 2d 335, 338 (6th Cir. 1938) . . . . . . . . . . . 20

Kyles v. Whitley,

514 U.S. 419 (1995) . . . . . . . . . . . . . . . . . . 23

Napue v. Illinois,

360 U.S. 264, 271 (1959) . . . . . . . . . . . . . . . . 16

Ramirez v. State,

2001 LEXIS 2305 at *18 (Fla. Dec. 20, 2001) . . . . . . . 9

Rogers v. State,

782 So. 2d 373, 385 (Fla. 2001) . . . . . . . . . . . . 25

Sanders v. Sullivan,

863 F.2d 218, 224 (2d Cir. 1988) . . . . . . . . . . . . 20

Schneider v. Estelle,

552 F.2d 593 (5th Cir. 1977) . . . . . . . . . . . . . . 19

Smith v. Florida,

410 F.2d 1349 (5th Cir. 1969) . . . . . . . . . . . . . 19

Smith v. Massey,

235 F. 3d 1259 (10th Cir. 2000) . . . . . . . . . . . . 17

Smith v. Phillips,

455 U.S. 209 (1981) . . . . . . . . . . . . . . . . . . 18

State v. Yates,

137 N.H. 495,

629 A.2d 807 (N.H. 1993) . . . . . . . . . . . . . 16

Stephens v. State,

748 So. 2d 1028 (Fla. 1999) . . . . . . . . . . . . . . . 1

United States v. Antone,

603 F. 2d 566, 569 (5th Cir. 1979) . . . . . . . . . . . 19

United States v. Barham,

595 F. 2d 231, 242 (5th Cir. 1979) . . . . . . . . . . . 23

United States v. Biberfeld,

957 F. 2d 98, 102 (3d Cir. 1992) . . . . . . . . . . 16, 19

Way v. State,

760 So. 2d 903, 912 (Fla. 2000) . . . . . . . . . . . . 10

Williams v. Griswald,

743 F.2d 1533 (11th Cir. 1984) . . . . . . . . . . . . . 19

Young v. State,

739 So. 2d 553 (Fla. 1999) . . . . . . . . . . . . . . . 26

Trepal and the State's response thereto. Mr. Trepal relies on his

Initial Brief to refute those arguments of the State which are not

addressed herein.

In putting Roger Martz's role in this case "in context" (AB at

9), the State simply downplays Martz's role, the importance of the

testing he conducted, and the significance to the jury of the results

to which he testified. While conceding that Martz was the only

witness who testified in front of the jury to the particular kind of

thallium in the three Coke bottles (Q1-Q3) as well as the bottle

found in Mr. Trepal's vacated shed (Q206) (AB at 10), the State, at

this juncture, with Martz's credibility and his testing results in

tatters, now wants to distance itself from the importance of Martz

and his conclusions to its case at trial. Rather, the State's

position now is that "thallium is thallium" and because Peggy Carr

died of thallium poisoning, Martz's testimony identifying the

specific type of thallium located in Q1-Q3 and Q206 was of no real

significance to the State's case (AB at 9).

The State's latest position on Martz's role flatly contradicts

the factual finding of the lower court that "[t]he testing results of

contested by the State, is due deference by this Court. Stephens v.

State, 748 So. 2d 1028 (Fla. 1999). Moreover, the State's distancing

from Martz is flatly contrary to its own actions regarding Martz

prior to trial as well as the arguments it made to persuade the trial

court to admit damaging evidence from DEA Agent Broughton and David

Warren about Mr. Trepal's prior conviction in North Carolina. During

the investigatory stage of the case, and even as the case went to

trial, the State was not satisfied with the "thallium is thallium"

theory it now espouses. The authorities knew early on (and certainly

when they first interviewed Mr. Trepal), that the Carr family had

been poisoned with thallium. The issue here is not that the Carr

family was poisoned with thallium; rather, the State determined that

it was significant to attempt to link the evidence of the contents of

the Q1-Q3 bottles to the contents of Q206, and, of course, the

contents of both to Mr. Trepal. The particular form of thallium

contained in Q1-Q3 and Q206 was the dispositive factor and the

foundation for Mr. Trepal's arrest and the ultimate linkage to Mr.

Trepal of the Q1-Q3 and Q206 items. In other words, if this case had

involved a shooting, Martz's testing provided the State with evidence

that the lands and grooves of the bullet used to kill the victim

matched a gun in Mr. Trepal's possession. Without the linkage

between the specific bullet to a specific gun, the State would not be

permitted to simply introduce "a" bullet and "a" gun and hope the

jury believes they are somehow related to the case and the defendant.

Just as a "gunshot" is not any "gunshot" unless specifically tied to

evidence in the possession of the defendant, so too this case,

"thallium" is not just "thallium" where Martz provided the crucial

linkage between the key evidentiary items and Mr. Trepal. As the

lower court correctly stated at the closing argument following the

evidentiary hearing, "I don't think there's any argument here about

thallium being present. I think nitrates is what we're fighting

about" (2PCR. 749).

The other reason the State needed to identify the particular

form of thallium in the Coke samples and in Q206 was to demonstrate

that the particular salt form of thallium used by the killer showed

premeditation. Indeed, in its direct appeal brief, the State argued

that because "Coca Cola with a solution of thallium one nitrate added

does not appear different than plain Coke," the "use of thallium one

nitrate shows that appellant intended to kill" (Answer Brief of

Appellee, Trepal v. State, No. Sc77667, at 250). The reaction of the

various salt forms of thallium became a key focus of the

investigation and ultimate case presented at trial, including the

Thall

ium

is

rare

enoug

h.

All

of

the

chemi

sts

that

have

testi

fied

told

you

that

thall

ium

is

not

somet

hing

that

you

can

find

in

quant

ities

like

half

a

gram

every

where

.

Sixte

en

parts

per

billi

on,

yes.

A

half

a

gram,

that'

s

somet

hing

diffe

rent.

How does the State prove this to you, that this would

have to be a coincidence? Through two sets of witnesses.

First of all, the FBI did a test. Havekost did an

elemental analysis test. He figured out that it was

The washings had been tested and retested by him.

All we knew was thallium. But the Coca-Cola -- let me

backtrack.

What happens? Coca-Cola takes Thallium I, Thallium

Now, as far as the defense argument at the end that

perhaps even if Mr. Trepal did this he didn't intend to

(R. 4193-94 (emphasis added). The prosecutor's own theory of the

case and the evidence the State chose to present to the jury belies

the State's current attempts to distance itself from the critical

importance of Martz's testing to its case.

Finally, and as explained in detail in Mr. Trepal's Initial

Brief, the State also needed Martz's testing and the conclusions

therefrom in order to make its argument in support of the

admissibility of Mr. Trepal's prior conviction in North Carolina

through the testimony of DEA Agent Broughton and David Warren

(Initial Brief at 52-54). The gist of Broughton's testimony

concerned Mr. Trepal's prior knowledge that thallium III nitrate is

used in the amphetamine manufacturing process, a process which

produces a sediment of thallium I nitrate (R. 3480-81). Of course,

this testimony is only meaningful in terms of linkage to Mr. Trepal

if the contents of Q1-Q3 and Q206 contained thallium nitrate, and any

the lower court "agreed" that "Martz should have limited his

testimony to an opinion that the results of his testing were

14).

the Q206 sample, or both, did not contain thallium nitrate, would

render Broughton's testimony irrelevant and inadmissible.

The State recognizes the potential impact on the admissibility

of Broughton's testimony, but argues that because the lower court

found that "even if Martz could not identify thallium nitrate as

having been `added' to the Coke, he could have properly testified

that the test results on the tainted Coke were consistent with

thallium nitrate having been added" (AB at 19). This, according to

the State, "would have been a sufficient predicate for the relevance

of Trepal's knowledge of and access to thallium nitrate as part of

his participation in the methamphetamine lab" (Id.). The problem

with the State's argument is that this is not what the lower court

found. The lower court never found that Martz could have properly

testified that the test results "were consistent with thallium

to Q1 and Q2, all Martz would have been justified in saying was that

stoichiometric analysis conducted by Martz on the airplane to Florida

as demonstrating the ultimate correctness of Martz's opinion that

thallium nitrate had been added to the Coke; the State also notes

that witnesses Jordan and Burmeister concurred with the

stoichiometric analysis (AB at 13). The State fails to note,

however, that the lower court rejected these conclusions on

credibility grounds:

the court is concerned that the result may be unreliable

because the data, taken from the IC chart, was flawed.

Testimony at the hearing has indicated that the IC charts

were flawed because of the graphing problems described

earlier, the failure to run blanks, and the failure to run

a standard consisting of nitrate and unadulterated Coke.

Martz relied on the IC charts; Jourdan used data taken

from Martz's notes. Burmeister's opinion of Martz's work

was also shaped by the quantitative analysis. While there

is a possibility that the substance is in fact thallium I

(2PCR. 2680) (emphasis added). Martz himself testified at the

evidentiary hearing that, prior to trial, he "didn't think it was

possible" to do the quantitative analysis because he had "misread"

one of the charts (Id. at 2991). The court also noted that Jordan

and Burmeister "colored their testimony" at the evidentiary hearing

due to their roles in defending Martz during the Inspector General

investigation (Id.). All these factual findings are supported by

competent evidence, and the State makes no meaningful effort to

explain otherwise.

oxidizing agent" (2PCR. 2679). Indeed, the lower court expressly

found that "[w]hile there is a possibility that the substance is in

The lower court also found that "the measure of scientific proof

required by the scientific community was not satisfied by Martz's

testing sufficiently to permit Martz to conclude that thallium

that Drs. Dulaney and Whitehurst "concluded that Martz's testing

established only that the Coke samples were `consistent with'

thallium nitrate having been added" (AB at 13). The State cites no

pages in the evidentiary hearing transcript reflecting such

testimony. Both Dulaney and Whitehurst had serious concerns about

Martz's conclusions as to the type of salt that may have been

contained in the Coke samples. See Initial Brief at 33-38.

nitrate was added to Q1 and Q2 (Id. at 2681). There is a world of

difference between saying that the results were "consistent with

to have "the presence of nitrate" does not mean that the substance is

"thallium nitrate." In fact, one of the critical areas on which the

lower court concluded that Martz "misled" the jury was his testimony

at trial that known Coca-Cola contained no nitrate, when in fact he

conducted testing (never disclosed to the defense) which revealed the

presence of nitrate in known Coca-Cola (2PCR. 2972; 2974; 2985). As

the lower court concluded, this fact "would have been useful to the

jury" (2PCR. 2678), for, as defense counsel testified, it would have

given the defense the ability to make a powerful argument that the

"presence of nitrate" in the contaminated samples was attributable to

the makeup of Coca-Cola itself (Id. at 3544).

The State incorrectly asserts that "there was no real issue

presented below" with regard to Martz's testimony as to the contents

of Q206 (AB at 10). This is not accurate. Martz himself was

questioned extensively about his work on Q206 (2PCR. 3007-13), and

admitted calling the results "debatable" when interviewed by the

Office of the Inspector General (2PCR. 3013). When asked about the

fact that the charts reflecting the results of x-ray diffraction

testing he did on Q206 revealed peaks showing substances other than

nitrate, Martz explained he was "not an expert on x-ray diffraction"

Q206 (Id. at 3010). When asked about the IR testing he did on Q206

which showed discontinuity in the peaks, he acknowledged the

difficulty in running thallium nitrate using the IR technology (Id.

at 3012-13). Much of Dr. Frederic Whitehurst's testimony, which the

lower court found to be "highly credible," dealt with Q206; upon

review of the charts pertaining to the testing of Q206, Dr.

Whitehurst indicated that the charts suggest that the sample was

prepared improperly (2PCR. 3404). He also indicated that due to the

poor quality of the charts, the tests should have been redone (Id.).

Dr. Whitehurst concluded that while the readouts on the charts were

consistent with the presence of thallium nitrate, the result needed

to be confirmed through other testing methods which were not done

(2PCR. 3405). Dr. Whitehurst clearly testified that stating the

charts are consistent with thallium nitrate, is not the same as

stating that Q206 contained thallium nitrate (2PCR. 3405-6). Dr.

Dulaney also indicated that the results of the Q206 testing was

debatable (2PCR. 3238). Thus, it is inaccurate to conclude that

issue, contending that a Frye challenge must be raised at trial (AB

at 17). When evidence which could lead the defense to mount a Frye

challenge is withheld by the State, the State cannot turn around and

fault the defense for not raising the issue at trial.

there was "no real issue presented below" as to the Q206 sample.

The State admits that "had Martz's testing been subject to

further scrutiny prior to being admitted at trial, any deficiencies

could have been corrected with new, more reliable testing and data"

is undermined in the result of the trial. The State's argument

certainly is an acknowledgement that Martz's testing was grossly

inadequate, for there would be no reason to conduct "new, more

reliable testing" had Martz's work been scientifically reliable

enough on which to base any opinions. The State also fails to

explain how its concession would assist its position at trial, where

it would bear the burden under Frye of establishing the general

20, 2001).

Despite its concession, the State argues that the "new, more

reliable testing and data" it concedes should have been done in this

failing to reveal something that no one asked about" (AB at 16).

This defense of Martz is puzzling, given the lower court's factual

finding 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" (2PCR. 2679). "The resolution of [capital] cases is not a game

where the prosecution can declare, "It's for me to know and for you

to find out." Craig v. State, 685 So. 2d 1224, 1229 (Fla. 1996).

The State overlooks that, during Martz's pretrial deposition, after

he discussed the few tests that he relied on to arrive at his

conclusions as to both the Coke samples and the Q206 sample, he was

asked "Does this that we have discussed so far today cover your

entire involvement in the investigation of this case?" to which Martz

responded "To my knowledge, it does, yes" (Deposition of Roger Martz

at 13). The State fails to explain what else the defense was

supposed to do when assured by Martz that what he discussed at the

deposition constituted his "entire involvement" in the case. See Way

v. State, 760 So. 2d 903, 912 (Fla. 2000). In any event, to the

extent that the defense could have done more to look into this

matter, defense counsel rendered deficient performance, as the lower

court ultimately concluded (2PCR. 2687).

case would have prevented the exclusion of this evidence (AB at 17).

This is not only sheer speculation, but also contrary to prosecutor

Aguero's representation below that "[i]f we have another trial, Mr.

Martz is going to testify exactly like he did ... The only exception,

the only exception is going to be that Mr. Martz now recognizes that

he did not do a nitrate test on Q3, so I'm sure that he would not

testify in that fashion in a new trial" (2PCR. 3632). This is hardly

demonstrative of a true recognition by the prosecutor that "new, more

reliable testing" would be done at a new trial or would have been

done prior to trial had the defense known of the significant

the record to indicate that the testing methods would have been

improved, nor is there any testimony which would have strengthened

the results or shown that protocols will someday exist as to the

testing of thallium in Coca-Cola. Martz never testified that the

defects in his testing could be cured. In fact, Martz's notes were

so sparse and misleading that the witnesses had difficulty in

reconstructing what he did or did not do.

The State further asserts that "there is no allegation that the

nature of the testing itself is such that, when properly conducted,

the results would not be generally accepted within the scientific

community" (AB at 17). This argument overlooks the premise of Frye,

namely, that "a courtroom is not a laboratory, and as such it is not

the place to conduct scientific experiments." Ramirez at *15. The

State's view requires Mr. Trepal to speculate as to what evidence the

State would present at a Frye hearing to meet its burden of general

acceptance, and what a judge hearing the evidence at an adversarial

Frye hearing at some future date would conclude. The State has

shifted its burden under Frye to Mr. Trepal. Martz acknowledged, and

the State concedes in its brief, that the reason he conducted the

vast amount of testing on the questioned samples (both the Coke

samples and Q206) was "because thallium was an uncommon substance"

and "there were no protocols to govern his testing"; thus, Martz

"tried a number of different tests -- some of them experimental in

nature -- in an attempt to find out as much as he could" (AB at 15).

evidentiary hearing that Martz's conclusion that thallium nitrate was

added to the Coke samples was proven within a reasonable degree of

scientific certainty (AB at 17). This testimony, of course, was from

Martz, Jourdan, and Burmeister, all of whose relevant testimony the

lower court rejected on credibility grounds. Moreover, to the extent

that the State relies on Martz to prove the scientific acceptance and

reliability of his own testing, this argument fails. Ramirez, 2001

LEXIS 2305 at *16 ("A bald assertion by the expert that his deduction

is premised upon well-recognized scientific principles is inadequate

to establish its admissibility of the witness' application of these

principles is untested and lacks indicia of acceptability").

It is precisely because there are "no protocols" to govern the

testing and Martz had to rely on "a number of different tests" some

of which were "experimental in nature" that a Frye challenge exists

and, had the evidence not been suppressed, would have been made prior

to trial. Given the lower court's conclusions, particularly the

finding that "the measure of scientific proof required by the

scientific community was not satisfied by Martz's testing

sufficiently to permit Martz to conclude that thallium nitrate was

there is a reasonable probability that a Frye challenge would have

been successful had the evidence that defense counsel needed to mount

such a challenge been disclosed by the State. Whether the evidence

is re-tested under "new, more reliable" methods at some future date

and whether the State can meet its burden under Frye is a matter to

be addressed at a new trial, not in the present proceeding.

Again, the problem with the manner in which the State has

twisted the Frye issue is that it overlooks that when establishing

demonstrate general acceptance of both the underlying scientific

the facts of the case. Ramirez at *19. Just as "[t]he theory

underlying tool mark evidence" at issue in Ramirez "has long" been

generally accepted, here too Mr. Trepal does not argue that the

machinery used by Martz to conduct the testing were not generally

accepted. However, when the examiner's particular "theory" or method

of applying this methodology "departs" from the generally-accepted

methodology, Ramirez at *21, Frye is implicated. Thus, that no

protocol existed for Martz's testing and that he had to rely on

experiments in the laboratory "in an attempt to find out as much as

he could" (AB at 15), is precisely the reason that his conclusions

were inadmissible at Mr. Trepal's trial. An "expert" who is either

incompetent or who is "quite skilled and knowingly colored his

testimony" (2PCR. 2679), does not provide a reliable basis for

providing a capital jury with opinions on "the only direct evidence

of guilt":

In order to preserve the integrity of the criminal justice

system in Florida, particularly in the face of rising

nationwide criticism of forensic evidence in general, our

state courts--both trial and appellate--must apply the

Frye test in a prudent manner to cull scientific fiction

and junk science from fact. Any doubt as to admissibility

under Frye should be resolved in a manner that minimizes

the chance of a wrongful conviction, especially in a

capital case.

Ramirez at 846.

Finally, the State contends that "there has never been any

evidence presented that the Coke samples did not, in fact, contain

thallium nitrate" (AB at 18). The State apparently overlooked one of

the more important findings by the lower court on this very issue:

"[w]hile there is a possibility that the substance is in fact

(emphasis added). All the lower court indicated was that Martz's

test results were "consistent with the presence of nitrate," not

there is a world of difference between these two facts. The experts

on whom the lower court relied and who it found to be highly credible

both testified that the most that could be said about the contents of

the Coke samples was that they contained thallium; without more

research, there was no way to determine what thallium salt was

present (2PCR. 3394; 3228). Other than bald disagreement and a

general statement about its "concerns with a few of the findings"

made by the lower court (AB at 8 n.1), the State points to nothing

except an inaccurate reading of the lower court's finding to support

its contention that no evidence was presented regarding the content

testimony, Mr. Trepal addresses this more specifically in the

previous subsection of his Reply Brief.

court below as one of newly discovered evidence" (AB at 21). This is

not accurate. This claim was presented below as newly discovered

Giglio and Brady violations, in addition to a straightforward "newly

discovered evidence" claim. All these grounds for relief are

asserted herein as well.

In his initial brief, Mr. Trepal argued that the lower court

employed an incorrect legal standard in denying relief based upon a

Giglio violation. In its brief, the State asserts that the lower

court did indeed apply the correct legal standard but rejects the

lower court's Giglio analysis as "improperly beneficial to Trepal"

and asserts that this case should be viewed under a "straight newly

court's legal analysis, however, are waived, for the State did not

appeal. See Cannady v. State, 620 So. 2d 165, 170 (Fla. 1993)

(procedural defaults apply to the State as well as to defendants).

In arguing that the lower court's Giglio analysis was correct,

the State simply points to the incorrect standard directly from the

lower court's order (AB at 20). Although the lower court identified

the Giglio test as requiring relief if "there is a reasonable

likelihood that [the false information] could have affected the jury

State, 774 So. 2d 629 Fla. 2000), for the proposition that the

materiality analysis of a Giglio violation is the same as for a Brady

violation (2PCR. 2689). Mr. Trepal addressed this issue in his

Initial Brief at p. 56 n.75, yet the State does not address this

argument. Apparently then the State concedes that the lower court's

reliance on Rose was misplaced; indeed, Rose is never mentioned,

cited, or discussed by the State.

simply an impossibility to compare Martz' false testimony with what

he could have truthfully testified to at trial. The jury never heard

truthful testimony from Martz, and to make this issue even clearer,

the lower court's order makes a factual finding declining to find

that Q1, Q2, and Q3 contained thallium I nitrate (2PCR. 2680). Thus,

there is no truthful testimony to compare to the false.

the pre-Giglio context when, for example, the Supreme Court found

verdict" (2PCR. 2680), the court went on to conclude that "for this

analysis the actual testimony should be compared to what Martz could

have truthfully testified to at trial," and that "there is no

reasonable likelihood that the verdict would have been different"

not look to what a perjurer "could have truthfully testified to."

This stands the Giglio test on its head. Rather, the focus is on the

405 U.S. 150, 154 (1972) (presentation of false evidence, whether

knowing or unknowing, requires a new trial "if the `false testimony

could . . . in any reasonable likelihood have affected the judgment

of the jury'") (quoting Napue v. Illinois, 360 U.S. 264, 271

that when a witness "gave the jury the false impression" on a

material fact of the prosecution's case, a new trial was warranted.

Alcorta v. Texas, 355 U.S. 28, 31-32 (1957).

Cir. 1992) (Giglio required new trial because "[i]f DiLauro's alleged

perjury were before the jury, it is reasonably likely that the jury

regarding the K-39 clause, thus affecting the judgment of the jury

with respect to the false statement counts ..."); State v. Yates, 137

N.H. 495, 629 A.2d 807 (N.H. 1993) ("Although the trial court found

that `there was more than sufficient evidence from which the jury

could conclude' that Yates [committed the crime], the test for

resolving Yates' claim is not whether the jury's verdict is supported

by sufficient evidence, but whether there is any reasonable

likelihood that the false testimony could have affected the verdict.

. . It may be enough for the defendant to show that exposing the lie

during trial could have damaged the credibility of the witness"

(citing Giglio, 405 U.S. at 154; Napue, 360 U.S. at 269). Thus, the

lower court's analysis looking at what Martz "could rightfully have

testified about" is incorrect. The test employed by the lower court

and espoused by the State on appeal shifts the focus away from the

effect that Martz's false testimony might have had on the jury.

Given the factual findings of the lower court, when the correct legal

standard is applied, it could not be clearer that Mr. Trepal is

entitled to a new trial. As the lower court found, "if Martz had

that the test was "knew or should have known" (2PCR. 2689). This is

the correct standard, as discussed more fully infra. It also bears

pointing out that at the closing arguments following the evidentiary

hearing, prosecutor Aguero, in attempting to defend Martz, argued

that "[w]hat is important to understand is Mr. Martz was responding

to my question. . . I was in charge at that point. I was the trial

lawyer. I was asking all the questions" (2PCR. 3611). Aguero's own

argument supports the proposition that he knew or should have known

of the falsity of Martz's testimony. Moreover, "[t]he State in a

criminal trial assumes a heavy responsibility in vouching for an

expert's credentials, for if the State is duped along with everyone

else, the consequences can be dire." Correll v. State, 698 So. 2d

522, 526 (Fla. 1997) (Shaw, J., concurring in result with separate

opinion).

raised in and addressed by this Court in Correll v. State, 698 So. 2d

522 (Fla. 1997), regarding Florida "blood spatter expert" Judith

testified truthfully the only direct evidence in the case would have

been greatly weakened" (2PCR. 2679). This is more than a sufficient

finding under Giglio to warrant relief.

Citing Smith v. Massey, 235 F. 3d 1259 (10th Cir. 2000), the

State argues that the principle of imputed knowledge to the

prosecution of false testimony "may not be applied mechanistically"

reliance on Smith is misplaced for a number of reasons. In Smith,

the defendant alleged that a blood spatter expert presented by the

prosecution at trial was not qualified to render blood spatter

analysis, and that the "interpretation" rendered by the witness was

Bunker.

actually testified falsely, unlike the instant case, where the lower

court's order could not be clearer in its factual findings that Martz

knowingly presented false testimony to Mr. Trepal's jury. See, e.g.

2PCR. 2679 ("[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"). Thus, Smith is inapposite.

seeking relief, Smith argued that the witness' exaggeration of his

credentials amounted to false testimony imputable to the prosecution.

Id. at 1270-71. The Tenth Circuit rejected this claim, concluding

first that "there has been no factual finding by the state courts or

the district court that Ede knowingly provided scientifically

inaccurate testimony." Id. at 1272. The Court went on to note that,

in its view, the Supreme Court has not "clearly established" that

knowledge of falsity on part of a prosecution witness is imputable to

the State, although it acknowledged that "there appears to be a split

of opinion among the circuits on the issue." Id.

Mr. Trepal submits that the Tenth Circuit's conclusion is not

in accordance with Giglio, which itself addressed a situation of

imputed knowledge from one prosecutor who had no involvement in the

prosecution being attacked, to the actual prosecutor on the case

the Supreme Court emphasized that Giglio's materiality analysis

"implicitly recognizes that the misconduct's effect on the trial, not

the blameworthiness of the prosecutor, is the crucial inquiry for due

LaHue, 460 U.S. 325 (1983), for the proposition that the Supreme

Court "has not directly addressed the issue" of imputed knowledge of

false testimony. Smith, 235 F. 3d at 1272. Mr. Trepal respectfully

disagrees with the Tenth Circuit, as Giglio itself involved a case of

imputed knowledge. Moreover, Briscoe v. LaHue is not a case

addressing a constitutional violation, but rather "a question of

statutory construction" involving an immunity issue arising from a

§1983 action for damages brought by a convicted person against a

police officer for giving perjured testimony at his criminal trial.

Briscoe, 460 U.S. at 326.

does not mention that the Eleventh Circuit, which is the federal

prosecution witness, when that witness is a member of the

"prosecution team" such as law enforcement, is imputed to the

prosecutor. See Williams v. Griswald, 743 F.2d 1533 (11th Cir. 1984)

("It is of no consequence that the facts pointed to may only support

knowledge of the police because such knowledge will be imputed on the

state prosecutors") (citing Schneider v. Estelle, 552 F.2d 593 (5th

Cir. 1977); Smith v. Florida, 410 F.2d 1349 (5th Cir. 1969)). Accord

United States v. Antone, 603 F. 2d 566, 569 (5th Cir. 1979). Indeed,

numerous state and federal courts have held in accordance with the

Eleventh Circuit. See United States v. Biberfeld, 957 F. 2d 98, 102

(3d Cir. 1992) ("The government argues it did not actually know of

any falsity in DeLauro's testimony, and thus even if it was false,

Biberfeld is not entitled to relief ... The touchstone of due process

analysis is not prosecutorial misconduct, but the fairness of the

trial");

Curran v. Delaware, 259 F. 2d 707, 713 (3d Cir. 1958) (although

prosecution had no knowledge of perjury by a local police detective,

that testimony's potential prejudicial effect on the jury "cause[d]

the defendant's trial to pass the line of intolerable imperfection

and fall into the field of fundamental unfairness"); Jones v.

Kentucky, 97 F. 2d 335, 338 (6th Cir. 1938) ("`The fundamental

conceptions of justice which lie at the base of our civil and

political institutions' must with equal abhorrence condemn as a

travesty a conviction upon perjured testimony if later, but

fortunately not too late, its falseness is discovered"); Sanders v.

Sullivan, 863 F.2d 218, 224 (2d Cir. 1988) ("There is no logical

reason to limit a due process violation to state action defined as

prosecutorial knowledge of perjured testimony or even false testimony

by witnesses with some affiliation with a government agency. Such a

rule elevates form over substance"); Ex Parte Adams, 768 S.W.2d 281,

291-92 (Tx. Ct. Crim. App. 1989) (that prosecutor did not know that

eyewitness identified someone other than defendant is "insufficient

to remove the taint of the prosecution's knowing use of perjured

testimony. . . [W]hether the prosecutor had actual knowledge of the

falsity of the testimony is irrelevant. If the prosecutor should

have known is sufficient. . . [Because police agent had knowledge of

falsity of the witness's testimony], as a part of the investigating

team his knowledge of [the witness's] lack of identification at the

lineup and his assistance to her is imputed to [the prosecution]");

Ex Parte Castellano, 863 S.W.2d 476, 480-81 (Tx. Ct. Crim. App. 1993)

("knowledge of perjured testimony is imputable to the prosecution

where such knowledge is possessed by anyone on the `prosecution team'

which includes both investigative and prosecutorial personnel. . . It

is now settled law that a prosecutor need not have actual knowledge

of perjured testimony on order for there to be a due process

violation");

Hamann v. State, 324 N.W.2d 906 (Iowa 1982) ("The knowledge [of false

testimony] need not be personal to the trial prosecutor, but may be

imputed from one government attorney to another within the

prosecutor's office. . . Similarly, knowledge on the part of the

police within the prosecutor's jurisdiction is attributed to the

prosecutor's office, based on the investigatory, law-enforcement

`team' relationship presumed to exist"); In the Matter of an

Investigation of the W. Virginia State Police Crime Lab, Serology

Division, 190 W. Va. 321, 325 438 S.E.2d 501, 505 (W. Va. 1993) ("it

matters not whether a prosecutor using Trooper Zain as his expert

ever knew that Trooper Zain was falsifying the State's evidence. The

State must bear the responsibility for the false evidence. The law

forbids the State from obtaining a conviction based on false

evidence").

The lower court applied an incorrect standard under Giglio.

What the lower court's order misses and what the State sidesteps is

the effect that the false and perjured testimony had on the jury. As

noted by the lower court, Martz falsely testified about "the only

direct evidence of Trepal's guilt," and that "if Martz had testified

truthfully the only direct evidence in the case would have been

greatly weakened." Martz not only provided false testimony about the

contents of the Coke samples and Q206, he also lied about testing

sample Q3, lied about stating that a positive result on the DP test

will yield a blue color indicating the presence of nitrate, "mislead"

the jury when testifying that nitrate was not present in

unadulterated Coke, and "knew" that the data available at the trial

did not support the opinions he offered (2PCR. 2678-79). Given that

all of these opinions related to "the only direct evidence of

Trepal's guilt" (2PCR. 2689), Giglio is more than satisfied. Compare

Buenoano v. State, 708 So. 2d 941, 948 (Fla. 1998) (rejecting as

"baseless" a Giglio claim because "none of the new evidence

demonstrates that Martz's conclusions concerning the content of the

capsules was inaccurate").

Finally, the State contends that "other evidence at trial"

establishes that no relief is warranted (AB at 20). The State

by the State against Mr. Trepal was known for years before Mr. Trepal

was arrested. His arrest came only (and immediately) after Martz's

test results came back identifying thallium I nitrate in the Q206

bottle. See Initial Brief at 22 n.27. It is thus highly

disingenuous to argue that the "other evidence" adduced at trial

supported a conviction beyond a reasonable doubt when in fact that

"other evidence" did not even support a belief by law enforcement

that they should issue an arrest warrant for Mr. Trepal.

That there is "other evidence" to support the verdict is not the

dispositive inquiry in a Giglio analysis; as noted above, the inquiry

is on the effect that the false testimony might have had on the jury.

The State's desire to sweep Martz's false testimony under the rug and

ignore its impact on the jury simply eviscerates Giglio and its

progeny. As the Fifth Circuit long ago explained:

There is no doubt that the evidence in this case was

body which, under the Constitution, is given the

responsibility of deciding guilt or innocence. The jury

is that body, and, again under the Constitution, the

defendant is entitled to a jury that is not laboring under

a Government-sanctioned false impression of material

evidence when it decides the question of guilt or

innocence with all its ramifications.

United States v. Barham, 595 F. 2d 231, 242 (5th Cir. 1979) (emphasis

added). Relief is warranted.

In accordance with the lower court's conclusion, the State

argues that Martz's underlying data, notes, and charts were not

exculpatory prior to trial, but could only be considered exculpatory

after he testified falsely (AB at 23). This is a difficult argument

to respond to, for it is premised on circular logic. First, it bears

trial, despite the fact that Martz knew that the data he possessed

did not support his opinions offered at trial (2PCR. 2679). This

duty is imputed to the State, which has a duty to learn of

exculpatory evidence. Kyles v. Whitley, 514 U.S. 419 (1995).

Indeed, the underlying data produced by Martz when he tested the

evidence in the case was not disclosed by the State until the

Inspector General's Office began its investigation of the FBI Crime

Laboratory, years after Martz testified falsely at Mr. Trepal's

trial. Thus, the State's own argument, as illogical as it is, fails

to contemplate that years went by following Martz's false testimony

before this information came to light.

Citing Buenoano v. State, 708 So. 2d 941, 949 n.5 (Fla. 1998),

the State argues that it had no duty to disclose information which

would have established that Martz was testifying falsely (AB at 23-

24). Buenoano stands for no such proposition. In the footnote cited

by the State from Buenoano, all the Court discussed was that

information obtained from "a recent interview with Frederic

Whitehurst cannot be characterized as Brady material." Buenoano, 708

So. 2d at 949 n.5. The Brady claim in Buenoano did not involve

allegations of withholding of underlying data produced by Martz, but

rather Martz's "practices at the FBI lab" as recounted through an

interview of Dr. Whitehurst. In fact, Martz did not even testify in

Ms. Buenoano's trial. This is in no way similar to the allegations

made by Mr. Trepal, which involve the failure to disclose the

underlying notes, charts, and data produced by Martz prior to trial

which are the evidence of his false testimony. It cannot be

seriously suggested that evidence establishing that a forensic

scientist's conclusions are false is not exculpatory evidence under

Brady. See, e.g. In re Brown, 17 Cal. 4th 873, 879, 952 P.2d 715,

719 (Cal. 1998) (Brady violation occurred when prosecutor failed to

disclose underlying lab data of serological testing; "[t]he

prosecutor thus had the obligation to determine if the lab's files

contained any exculpatory evidence, such as the worksheet, and

disclose it to petitioner. Whether or not he actually did examine

the files, the lab personnel's knowledge is imputed").

As to materiality, the State's argument fails to contemplate

that the disclosure of the underlying data would have provided

defense counsel with the ability to fully investigate Martz's

testing, including bringing to light Martz's lies during his

deposition as to the scope of the testing he conducted. Part of a

proper materiality test contemplates that the withheld information

could also have been used by defense counsel to further investigate.

"[C]ourts should consider not only how the State's suppression of

favorable evidence deprived the defendant of direct relevant evidence

but also how it handicapped the defendant's ability to investigate or

present other aspects of the case." Rogers v. State, 782 So. 2d 373,

385 (Fla. 2001). As the lower court found, the additional testing

conducted by Martz, but which he failed to disclose both at trial and

deposition, would have been "particularly important because the

defense could have used this information to suggest that Martz was

not satisfied with his initial results and sought additional data"

(2PCR. 2679). Moreover, given the State's open acknowledgement that

the underlying data was in fact the evidence of Martz's false

testimony, its disclosure would have led (as defense counsel

testified) to a Frye challenge prior to trial. All of these factors

demonstrate the materiality of the suppressed evidence in this case.

Finally, the State argues that "no reasonable likelihood of an

acquittal exists" because of "the other strong circumstantial

evidence presented at trial" and that Martz's testimony, even if

"weakened" by impeachment, "would still be highly incriminating" (AB

at 24). The State continues to insist that Mr. Trepal must establish

a reasonable likelihood of an acquittal in order to establish a Brady

Kyles, 514 U.S. at 434-35; Young v. State, 739 So. 2d 553 (Fla.

1999). It also continues to insist that the existence of alleged

"strong circumstantial evidence" also demonstrates that no relief is

warranted, despite explicit holdings in Kyles and other cases that

sufficiency of the evidence is not the test for materiality.

Finally, the State's bald assertion that Martz's testimony "would

still be highly incriminating" remains unexplained, particularly

given its argument that it was only after trial that the falsity of

Martz's testimony came to light and thus it had no duty to disclose

his underlying data. Relief is warranted.

The State believes that because Peggy Carr died of thallium

poisoning, any attempt by the defense to address arsenic poisoning,

which did not directly cause Peggy's death, would not have been

exculpatory. The State misses the point of Mr. Trepal's argument.

As Mr. Trepal's initial brief pointed out, evidence of arsenic in all

three victims is an indication of a separate and distinct poisoning

attempt. A separate poisoning attempt with the use of arsenic is

exculpatory to Mr. Trepal because there has never been any evidence

showing he had access to arsenic or access to the Carr family on more

than one occasion.

Additionally, the State concludes that counsel's failure to

secure an expert was not ineffective because counsel was not happy

with the results of the Georgia Tech lab (AB at 32). However,

Georgia Tech was hired only to test the three Coke bottles which were

the subject of the FBI testing. Mr. Trepal's assertion is not

failure to hire an expert to test those samples, or further test the

samples after the results from Georgia Tech, but rather the failure

to hire a toxicology expert to assist in preparation and trial of the

case, particularly with respect to the arsenic issue and other issues

relating to thallium. It was necessary to hire an expert to explain

to the jury the significance of the high levels of arsenic found in

the victims. As the trial court stated, "the presence of arsenic

raised some questions, but trial counsel had to focus on what they

knew" (PCR. 3340). The problem is that counsel did not know the

significance of the arsenic readings from the hospital and rather

than rely on an expert, they relied on Dabney Connor whose elementary

knowledge of chemistry was insufficient. This was deficient

performance:

Under these circumstances, a reasonable defense lawyer

would take some measures to understand the laboratory

tests performed and the inferences that one could

logically draw from the results. As discussed above,

expert testimony was available to counter the false

evidence presented by the State, yet counsel, without a

reasonable strategic reason, did not challenge the State's

case. At the very least, any reasonable attorney under

the circumstances would study the state's laboratory

report with sufficient care so that if the prosecution

advanced a theory at trial that was at odds with the

[toxicology] evidence, the defense would be in a position

to expose it on cross examination.

Driscoll v. Delo, 71 F.3d 701, 709 (8th Cir. 1995).

While the State, in addressing the Giglio issue, writes that

"Martz's overstated testimony should not imputed on the prosecutor,

who may be skilled in the law but not an expert in complex scientific

issues" (AB at 22), this is precisely the problem with the defense

team's reliance on Connor's chemistry knowledge. While he may have

had some rudimentary scientific background, he was not an expert in

the complex scientific issues prevalent throughout this case. It is

contradictory for the State to argue their lack of scientific

knowledge to side-step the Giglio claim, and at the same time argue

that the defense was not deficient in failing to obtain another

expert to assist in preparation and trial of the case.

As to the remainder of the State's arguments on the guilt phase

claim, Mr. Trepal relies on the arguments set forth in his Initial

Brief, as they adequately rebut the assertions of the State.

Mr. Trepal argued that pursuant to Brady v. Maryland, 373 U.S.

83 (1963), the prosecution had an obligation to disclose to the

defense, for impeachment purposes, the true extent of law

enforcement's ambition to peddle the death of Peggy Carr as a movie,

book, and as a sensationalized story for sale to a media production

company. Mr. Trepal also asserted that these allegations amounted to

a conflict of interest on law enforcement's part. As detailed in Mr.

Trepal's Initial Brief, the law enforcement agency that so zealously

sought evidence of Mr. Trepal's guilt, and went to great but

fruitless lengths to uncover anything that tied him to Peggy Carr's

death, had definite financial interests in "solving" this case with

as much dramatic value as possible. The lower court denied an

evidentiary hearing on this issue because there were no allegations

trial (1PCR. 3347).

The State correctly points out that the factual allegations

made by Mr. Trepal must be accepted as true in light of the summary

denial (AB at 45). Most significantly, the State concedes that Mr.

Trepal "provides a number of allegations to suggest that the Polk

County Sheriff's Office was interested in and contemplated a movie

deal during this investigation" (AB at 46). However, the State

argues that Mr. Trepal does not explain "any actual influence or

affect that this alleged motivation may have had on the

investigation" (AB at 46). The State appears to be confusing the

issue of whether Mr. Trepal made sufficient allegations to warrant an

evidentiary hearing, as opposed to his entitlement to relief on the

merits of the claim. But in any event, the State's assertion is

belied by Mr. Trepal's brief:

Mr. Trepal clearly alleged that the department was

discussing movie possibilities even before Mr. Trepal's

arrest, and that tremendous pressure was laid to bear on

the investigators to find evidence to warrant an arrest

warrant. This information, which clearly should have been

disclosed pursuant to Brady v. Maryland, 373 U.S. 83

(1963), would have been powerful impeachment at trial,

particularly given that the focus of the defense was on

the `rush to judgment' of the Sheriff's Department, as

well as the specter that the brown bottle found in Mr.

Trepal's vacated garage was planted. Knowing that the

Sheriff's Department was obsessed about making a movie

about the case to the point of speculating on which actors

would play Mr. Trepal would have been cannon-fodder for

devastating impeachment in the hands of competent counsel.

(Initial Brief at 82-83). Thus, Mr. Trepal in fact did allege how

this information could have been used by trial counsel to impeach the

integrity of the investigation. Particularly given prosecutor

Aguero's vouching before the jury at the closing argument that this

"was the most outstanding piece of police work that you will likely

ever see in your life" (R. 4181), Mr. Trepal's allegations were more

than sufficient to warrant an evidentiary hearing.

The State argues that evidence of law enforcement's desire to

make a movie and thus reap a financial benefit "is neither

exculpatory or material to Trepal's case" because there are "[no]

facts suggesting that any of the evidence against Trepal was

compromised" (AB at 48). The evidence alleged by Mr. Trepal is

clearly impeachment evidence going to the motivations of the police

in investigating the case and identifying Mr. Trepal as the suspect.

"[E]xposure of a witness' motivation in testifying is a proper and

important function of the constitutionally protected right of crossexamination."

Davis v. Alaska, 415 U.S. 308, 316 (1974). That an

entire law enforcement agency had a clear financial motivation to

solve this case, and finger Mr. Trepal as the suspect, is classic

impeachment evidence. See §90.608 (1)(b), Fla. Evidence Code.

"[T]he financial stake of a witness in the outcome of the case being

litigated" is recognized as a valid method of impeachment. Ehrhardt,

allege, or even prove, that any evidence was "compromised" due to the

financial stake on part of law enforcement, for the underlying

constitutional principle goes to the exposure to the jury of a

witness' motivation in testifying. This is particularly true in Mr.

Trepal's case, where a main focus of the defense was on the adequacy

and integrity of the investigation undertaken by the Polk County

Sheriff's Office. An evidentiary hearing is warranted.

"I would appreciate it if you don't visit the office of the

newspaper anymore" (R. 3201). Those are the words of the trial judge

prior to the testimony of Susan Goreck. The trial judge told the

who had called the judge about providing the jurors with copies of a

picture that appeared in the paper. Despite the fact that at least

some of the jurors had obviously visited the newspaper office, and

read any of the news stories about the case, only "some jurors"

indicated negatively (id.), trial counsel failed to object, move for

a mistrial, or inquire further as to what prompted this highly

unusual and startling comment from the judge in the middle of a

capital trial.

The State generally agrees that the lower court's order was

correct when it denied Mr. Trepal relief and stated that "[n]o error

was apparent, however, since the court explored the facts and failed

to uncover any indication of juror misconduct" (AB at 49).

Notwithstanding the State's claim that the substantive issue is

procedurally barred, trial counsel's failure to object or move for a

mistrial when it became entirely clear that jurors had been

communicating with the local newspaper is properly raised in a Rule

3.850 motion as an ineffective assistance of counsel claim.

The State argues that because there was no basis for a finding

of deficient performance, there was no basis for allowing the jurors

to be interviewed in order for Mr. Trepal to establish his

entitlement to relief (AB at 51). However, the lower court did not

find that there was "no basis" for a finding of deficient

performance; rather, the court concluded that "it is impossible for

the court to determine if trial counsel was ineffective if the

lawyers and trial judge do not even remember the event occurring"

(1PCR. 3373). Given this situation, the necessity for juror

interviews became even more apparent, not less. The whole point of

Mr. Trepal's claim is that counsel failed to investigate what

occurred between the jurors and the newspaper office. Given

counsel's lack of recollection, only the jurors could be in a

position to provide information about this incident. However,

counsel are prevented from interviewing jurors absent a court order.

Under the particular facts of this case, juror interviews should have

been ordered, and should be ordered at this time.

On the basis of the arguments presented herein, Mr. Trepal

urges that this Honorable Court set aside his unconstitutional

convictions and sentences, including his death sentence.

I HEREBY CERTIFY that a true copy of the foregoing Reply Brief

has been furnished by United States Mail, first class postage

prepaid, to Carol Dittmar, Asst. Attorney General,

Department of Legal Affairs, 2002 North Lois Avenue, Suite 700,

Tampa, FL 33607-2366, on April 17, 2002.

__________________

TODD G. SCHER

Florida Bar No. 0899641

Capital Collateral Regional

Counsel-South

101 N.E. 3rd Ave., Ste. 400

Fort Lauderdale, FL 33301

(954) 713-1284

Attorney for Mr. Trepal

I HEREBY CERTIFY that this brief complies with the font

requirements of rule 9.210(a)(2) of the Florida Rules of Appellate

Procedure.

______________________

TODD G. SCHER

Florida Bar No. 0899641

Litigation Director

CCRC-South

101 NE 3rd Ave., Suite 400

Fort Lauderdale, FL 33301

(954) 713-1284

Attorney for Mr. Trepal