^[1]Interestingly, Dr. Harry Krop evaluated Jody Wright in 1988 (PC-R1. 1017-56). At the time that he testified in October of 1988, Dr. Krop had evaluated some 200 individuals who were capital defendants. Jody Wright was one of three whose MMPI results were completely within “normal” ranges. Dr. Krop found Jody Wright to be an intact person with no signs of sexual deviancy or sociopathic tendencies. Jody Wright did not fit the profile to which Dr. Krop had become accustom.

^[2]Justice Blackmun in his dissent from the denial of a writ of certiorari said “this case comes down to Wright’s word against Westberry’s.” Wright v. Florida, 474 U.S. 1094, 1097 (1986)(Blackmun, J., dissenting).

^[3]The jury also did not hear certain undisclosed impeachment evidence regarding Charles Westberry. Besides the disclosed immunity on the accessory to murder charges, the prosecutor gave Charles “a limited grant of immunity” regarding the illegal scrap metal business that he and Jody had operated together (PC-R1. 756). Charles has acknowledged that he was “scared of getting into trouble for this” (PC-R1. 652). And because Paige had knowledge of the illegal business, he was worried she may get into trouble too. This additional immunity was not disclosed to defense counsel (PC-R1. 652). Moreover, the prosecutor met with Charles on a daily basis in the week or so leading up to trial (PC-R1. 756, 758). The prosecutor wrote out Charles’ answers to the questions that he intended to ask at trial (PC-R1. 763, 766). The prosecutor then “gave it to Charles Westberry prior to trial, asked him to review it, go over it, make sure what was there was the truth.” (PC-R1. 757). Charles was instructed to return the written answers to the prosecutor prior to taking the stand (PC-R1. 759). Charles remained in jail until a week after his testimony when he was finally released (PC-R1. 701). In 1988, Charles testified that he had been given typed answers to read over in preparing to testify at Jody’s trial (PC-R1. 670, 678). He still had the documents when he was released from jail, but subsequently was unable to find them (PC-R1. 669-70). The existence of these written answers was not disclosed to defense counsel at trial, and the written answers have never surfaced during the post-conviction process (PC-R1. 762).

^[4]Henry Jackson had previously been convicted of a homicide (PC-R2. 2615-16). Jody Wright’s prosecuting attorney, James Dunning, had represented Henry Jackson when Mr. Jackson was prosecuted for the homicide (PC-R2. 2432). Mr. Jackson also had a burglary conviction for burglarizing Earl Smith’s house which was across the street from Ms. Smith’s residence (PC-R2. 2432, 2434-35).

^[5]The evidence showed that Ms. Smith was in all likelihood stabbed by a right-handed person (R. 1739, 1816). Jody is left-handed.

^[6]The stab wounds on Ms. Smith were consistent with a pocket knife - “a sharp-edged weapon about, oh, a half-an-inch in width and an eighth of an inch in thickness, and not particularly long” (R. 1822). Between 2:00 and 3:00 pm. on February 6, 1983, Clayton Strickland sold Earl Smith a pocket knife for $5.00.

^[7]James Dunning, the prosecutor, testified in 1988 that this document “should have been given” to defense counsel because it contained information that “may [be] considered [] favorable to the Defense”(PC-R1. 724-25).

^[8]The medical examiner initially placed the time of Ms. Smith’s death as occurring between 5:00 p.m. and 9:00 p.m. on Saturday, February 5th. It was only after Westberry changed his story on April 19th and claimed that Jody had confessed to doing the murder at 5:00 a.m. that the medical examiner expanded the time range to include 5:00 a.m. on Sunday, February 6th (R. 1852).

^[9]Ms. Smith was found with a chocolate bar on her exposed abdomen.

^[10]Mr. Dunning testified in 1988 that he did not remember whether he had this statement prior to trial, but if he had it, he “[c]ertainly” would have disclosed to defense counsel (PC-R1. 727). In fact, Mr. Dunning acknowledged that he would have been obligated to disclose it (Id.).

^[11]Of course, when Kim Holt was interviewed on February 28th, she indicated the scratches were already present at 4:30 pm.

^[12]Wanda Brown in her February 7th statement had advised law enforcement that she had witnessed an encounter between Strickland and Ms. Smith on Saturday, February 5th.

^[13]In the intervening years, Taylor Douglas had been elected Putnam County Sheriff.

^[14]In 1988, Taylor Douglas testified that he recalled that the police accounted for Jackson’s possession of money and his scratched face because they determined that Jackson had done some tree trimming. However when pressed, Taylor Douglas had nothing to support this belief (PC-R1. 956). James Dunning testified that he had been advised that the sheriff’s office had “substantiate[d] that the money he had came from a Social Security check he had cashed, and that the substance that was on him turned [out] to be paint as opposed to blood (PC-R1. 721). Initially, Captain Miller said that Jackson got the scratches while trimming trees. When confronted with Jackson’s sworn statement, he acknowledged that Jackson’s under oath statement indicated that “he got scratched at his sister’s” during a fight (PC-R1. 1068). Captain Miller explained his previously stated belief as the result of his failure to “refresh[] my memory with these documents” (Id.). Of course, Jackson’s sworn statement indicated that he got scratched Sunday night and did not explain how Kim Holt saw the scratches Sunday afternoon.

^[15] No hair was obtained from either Jackson nor Strickland for forensic comparisons to the hair found on Ms. Smith’s body (PC-R1. 1003). No fingerprints comparisons were conducted between Jackson’s and Strickland’s known prints and the unidentified prints of value found at the crime scene (PC-R1. 1003, R. 2051).

^[16]So, the hair had sufficient characteristics to be compared to Ms. Smith’s known hair, and it was determined to not be hers. It also could not be matched to Jody, but the examiner buried this fact in language that was frequently nonsensical. The jury requested, but was not permitted, a read back of this testimony (R. 2899-2908).

^[17]A fingerprint identified as Jody’s had been found on Ms. Smith’s stove (R. 2057). Jody acknowledged that he and Paul House had previously gone into Ms. Smith’s home “to look around” (R. 2563). Paul House confirmed that he and Jody had gone into Ms. Smith’s residence in January of 1982 without permission when Ms. Smith was not home (R. 2396).

^[18]Mr. Dunning was suspended from the practice of law shortly before the 1988 evidentiary hearing, although the suspension was not disclosed by Mr. Dunning at the time of the evidentiary hearing (PC-R2. 1836, 2592, Exh. 45).

^[19]On October 3, 1991, Judge Perry resigned his position as a circuit judge in settlement of judicial inquiry which alleged judicial improprieties (PC-R2. 2590-92, Exh. 44). The inquiry concerned judicial misconduct in 1988 and 1989 involving improper ex parte conduct and not displaying impartiality.

^[20]During the deliberations the jury asked for the testimony of Ms. Lasko, the FDLE technician who had conducted an analysis of hair found on Ms. Smith’s body and was unable to match it to Jody Wright. The jury also asked for the testimony of Dr. Latimer, the medical examiner who concluded the assailant was probably right-handed. However, Judge Perry refused to provide the jury with the testimony (R. 2899-2908).

^[21]One of the three prosecutors at the evidentiary hearing was Robert (Mac) McLeod. According to Charles Westberry, Mac McLeod advised him he did not have to talk to Mr. Wright’s collateral counsel (PC-R1. 230). After that conversation, Mr. Westberry refused to talk to collateral counsel even though he had previously agreed to do so (PC-R1. 146).

Also in 1988, Robert McLeod handled the capital trial in Randall Scott Jones. At an evidentiary hearing in February of 2000, Robert McLeod testified that as a result of ex parte contact with Judge Perry, he prepared the sentencing findings that resulted in a sentence of death. He indicated that he did the same thing in the case of Manuel Colina who was also sentenced to death by Judge Perry. Jones v. State, Case No. SC00-1492, Post-conviction ROA 572). Colina’s sentence of death was reversed on appeal for other reasons. Colina v. State, 570 So.2d 929 (Fla. 1990).

Another prosecutor at the 1988 Wright evidentiary hearing was John Alexander. Judge Perry’s law clerk testified in an evidentiary hearing in 1998 that Mr. Alexander on ex parte basis participated in the 1989 drafting of sentencing findings imposing a death sentence upon Richard Randolph. Randolph v. State, Case No. SC93675, Post-conviction ROA 5344). In fact, the State in 1998 stipulated that a draft judgment and sentence came from the State Attorney’s file (Randolph, Post-conviction ROA 5313).

^[22]This Court quoted Judge Perry’s order virtually verbatim in its opinion affirming on appeal.

^[23]Judge Perry did not reveal at this time or at any time while he presided over the case that he too was a special deputy sheriff in Putnam County (Pellicer Depo. at 19). Special deputy appointments were given to political allies of Sheriff Pellicer (Miller Depo. at 7). People like to have a “deputy card,” “when they got stopped for speeding they pulled card [sic], you know, Oh, are you a deputy sheriff? Oh, yeah. Be careful, Sheriff, go ahead — a courtesy card, still call it that.” (Pellicer Depo. at 20).

^[24]The previously undisclosed records were in fact introduced into evidence at the December 1997 evidentiary hearing. Exh. 47.

^[25]Of course in the two and half years he sat on the case before issuing his order, Judge Nichols failed to notice that the prior evidentiary hearing to which he referred occurred in 1988, not 1991. Then again, may be he did not obtain the full record and review it.

^[26]Fingerprint comparisons for Henry Jackson and Clayton Strickland were not done.

^[27]The enterprise was quite lucrative. Charles Westberry acknowledged that one sale in mid-march of 1983 resulted in $1200 in proceeds (R. 2183-95).

^[28]The evidence at trial was that Mr. Wright had won approximately thirty dollars in the poker game (R. 1874).

^[29]Mr. Wright passed a polygraph while relating these facts.

^[30]Denise Easter was sharing a bedroom with Charles Westberry at the trailer belonging to Allen Westberry, Charles’ brother. She reported at Jody’s trial that she and Charles had gone to bed around 1:00 am. (R. 1925). Charles had gotten up at some point during the night. When she awoke the next morning, Jody was asleep on the living room couch. This was not an unusual occurrence. Jody had no blood on his clothes that she observed.

Similarly, Allen Westberry testified that he saw Jody on the couch at 7:00 a.m., and Beverly Westberry, Allen’s wife, saw Jody on the couch when she got up at 6:30 am. (R. 1946, 1957). Neither noticed anything looking like blood on his clothing.

^[31]According to Paige, Charles reported that Jody had claimed to have used a kitchen knife to slit Ms. Smith throat. In fact, Ms. Smith had been stabbed twelve times with a pocketknife.

Originally, Charles had told Paige that Jody had arrived at Charles’ trailer “covered with blood.” Charles had thought Jody had been in accident. Charles had said that Jody had showed him $243.00 in small bills. Subsequently at Jody’s trial, Charles reported considerably less blood, and claimed Jody said he got $290.00 from Ms. Smith’s purse as well as a jar of change. Due to the condition of Ms. Smith’s house and the manner in which she lived, there was no evidence that a specific amount of money or specific items were missing.

^[32]During the winter months prior to Ms. Smith’s death, Walter Perkins had become angry with Jody Wright’s mother over her failure to keep Jody and his brother away from his step-sister. So he told her that he was going to make her sorry that she ever had those two boys (PC-R2. 2587).

^[33]In denying the 3.850 motion in 1989, Judge Perry addressed Jody’s claim the statement was in fact merely a statement invoking silence and its introduction violated Miranda. Judge Perry said “the Florida Supreme Court has held that allowing such statements to be admitted at trial was harmless error, when, as in the instant case, the improper statement was not the primary evidence linking the Defendant to the crime, but rather cumulative to the evidence presented by the key witness. [Citation.] Therefore, even if the Defendant’s allegation of a Fifth Amendment violation is taken as true, the Defendant’s claim is insufficient to merit relief.” Wright v. State, 581 So.2d at 884.

^[34]As it turned out, one of the individuals who came forward with this evidence was Cynthia Kurkendall who the prosecutor was dating and subsequently married (PC-R1. 773).

^[35]Of course as has been previously noted, Taylor Douglas testified that he believed that the money came from tree trimming (PC-R1. 956). Wanda Brown’s statement indicates that on Saturday a social security check was not delivered to Henry Jackson (PC-R2. 447). And Henry Jackson’s statement indicates that the substance on his face was blood, and that he got scratched in a fight on Sunday night, apparently after Kim Holt observed the scratch marks on Sunday afternoon (PC-R1. 378).

^[36]The receipts were introduced into evidence by Mr. Wright and supported Mr. Pearl’s testimony that he did not receive the Luce, Brown or Holt statements (PC-R1. 793-807).

^[37]Charlotte Martinez was accompanied by Cynthia Kurkendall, her sister, when the decanter was handed over to Mr. Dunning during the trial (PC-R1. 771-72). According to Mr. Dunning, he had seen Cynthia “on several occasions [] at bars and so forth, had conversations with her, knew her” (PC-R1. 773). Subsequently, he married Cynthia.

^[38]Jody’s mother had died after Jody’s arrest and before his trial.

^[39]Despite intensive effort to locate these polygraph results, they have never been produced pursuant to Chapter 119. And in March of 1997, Taylor Douglas testified that polygraph exams were not given to Henry Jackson and Clayton Strickland (Douglas Depo. at 39).

^[40]In fact, such a statement has never surfaced in all of the extensive Chapter 119 discovery, just as no polygraph examination of either Jackson or Strickland has ever surfaced.

^[41]The memorandum was from Paul Usina and stated “I have found [Walter Perkins} to be lazy and unwilling to perform fully his capabilities. Additionally, I feel that Mr. Perkins is not trustworthy.” (Exh. 47).

^[42]They were located as witnesses only after the 1991 disclosure of public records that had previously not been provided to Mr. Wright’s collateral counsel (PC-R2. 167).

^[43]Mr. Wells was located as a witness only after the 1991 disclosure of public records that had previously not been provided to Mr. Wright’s collateral counsel (PC-R2. 169).

^[44]Ms. Hill was located as a witness only after the 1991 disclosure of public records that had previously not been provided to Mr. Wright’s collateral counsel (PC-R2. 174).

^[45]The police reports that were admitted into evidence as Exhibit 46 also show that Henry Jackson was found dead on February 2, 1985, after expressing complaint about shortness of breath and chest pains. He was 39 years old (PC-R2. 188).

^[46]No records were revealed of whether Bobby Hackney was seriously interviewed as a suspect or if so how he was eliminated.

^[47]No records were revealed as to whether Connie Ray Israel was considered as a suspect and if so how he was eliminated. See Israel v. State, Case No. SC95873.

^[48]Not only had Sheriff Pellicer revealed in 1997 that in fact he had placed Judge Perry on the special deputy list, but Judge Perry’s ex parte contact with the State in the Richard Randolph capital proceedings in the late 1989 had surfaced. Undersigned counsel did not learn of ex parte contact in the case of Randall Scott Jones and Manuel Colina until the year 2000. Since no public records have been disclosed by the State to date reflecting ex parte contact at Mr. Wright’s trial or during the 1988 evidentiary hearing, it was necessary to ask Judge Perry about what apparently was his standard practice.

^[49]It should be noted that this proceeding is a continuation of the first Rule 3.850 motion filed by Mr. Wright. This Court affirmed the denial of some of Mr. Wright’s claims in its 1991 opinion, but it remanded for further proceedings on “whether Wright’s public defender’s service as a special deputy sheriff affected his ability to provide effective legal assistance.” Wright v. State, 581 So.2d at 887. During the proceeding on remand, it was established that the Putnam County Sheriff’s Office had failed to previously disclose all the public records Mr. Wright had requested in 1988.

^[50]Here, the denial was never final in that this Court remanded for further proceedings on a related claim concerning whether trial counsel provided effective representation in light of his status as a special deputy sheriff.

^[51]The more likely than not standard was specifically rejected in Kyles v. Whitley, 514 U.S. at 434 (“[t]he question is not whether the defendant would have more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.”).

^[52]Under Jones v. State, 591 So.2d 911 (Fla. 1991), evidence of innocence, which neither the prosecutor failed to disclose at trial nor defense counsel unreasonably failed to discover at trial, may nonetheless warrant a new trial if the evidence probably would have resulted in an acquittal if it had been known by the jury. This burden of proof is obviously higher than the burden established in Strickland v. Washington.

^[53]Too often collateral litigants have used sloppy language in pleading claims for relief. Frequently, the phrase “newly discovered evidence” is employed to described two different types of evidence. On the one hand, this phrase has been used to refer to evidence that could not have been discovered sooner through the use of due diligence. Under Rule 3.850 if diligence is present, the merits of the underlying claim is before the court. Lightbourne.

On the other hand, the phrase has also been used to describe evidence supporting a claim under Jones v. State. In those circumstances, evidence of innocence, which was unavailable at trial, warrants a new trial if the jury would have probably acquitted had it heard the evidence.

In writing this brief, undersigned counsel has endeavored to not use the ambiguous phrase “newly discovered evidence” since it has engendered so much confusion in the past.

^[54]The State has an ongoing duty under Brady even when a case is in the postconviction stage. Johnson v. Butterworth, 713 So. 2d 985 (Fla. 1998); Roberts v. Butterworth, 668 So. 2d 580 (Fla. 1996). The State has a duty to learn of evidence that might be favorable to Mr. Wright which could form the basis for relief. Kyles v. Whitley, 514 U.S. 419 (1995).

^[55]In fact, the record is clear that both the prosecutor and the defense attorney failed in their respective obligations. A wealth of favorable evidence was not disclosed by the prosecutor. And trial counsel has testified that he provided “inferior performance” when he had “a lapse” and made “a mistake” and forgot to present the evidence establishing that the glass decanter was a Wright family heirloom (PC-R1. 820). Trial counsel also neglected to present the testimony that Officer Walter Perkins had threatened Mrs. Wright saying “I’m going to make you sorry you ever had them two boys” (PC-R2. 2587).

^[56]In Bagley, the Supreme Court adopted the Strickland prejudice standard as the proper measure for determining the materiality of the nondisclosure of exculpatory evidence. Thus, whether the alleged error is the prosecutor’s failure to disclose exculpatory evidence or the defense attorney’s failure to adequately represent the defendant, reversal is required when confidence is undermined in the outcome.

^[57]When called to the witness stand, Wanda Brown said that Henry Jackson had been present when the encounters took place.

^[58]When called to the witness stand, Leon Wells discussed Henry Jackson’s fondness for knives (PC-R2. 2575).

^[59]The Supreme Court has specifically recognized that evidence that impeached the reliability of law enforcement’s criminal investigation is exculpatory evidence that must be disclosed to the defense. Kyles v. Whitley, 514 U.S. at 446 (“the defense could . . . have attacked the reliability of the investigation in failing to consider [another suspect’s] possible guilt and in tolerating (if not countenancing) serious possibilities that incriminating evidence had been planted”).

^[60]This also goes to the reliability of law enforcement’s criminal investigation. Kyles.

^[61]This Court recently held that as a matter of law “evidence of coaching and conflicting accounts clearly was clearly [evidence] favorable to [the defendant].” Rogers v. State, Slip op. at 24.

^[62]This goes to the reliability of the police investigation. Kyles v. Whitley, 514 U.S. at 446.

^[63]This goes to the reliability of the police investigation. Kyles v. Whitley, 514 U.S. at 446.

^[64]This goes to the reliability of the police investigation. Kyles v. Whitley, 514 U.S. at 446.

^[65]This goes to the reliability of the police investigation. Kyles v. Whitley, 514 U.S. at 446.

^[66]This goes to the reliability of the police investigation. Kyles v. Whitley, 514 U.S. at 446.

^[67]Not only does this goes to the reliability of the police investigation, it provides substantial evidence that Henry Jackson and Clayton Strickland committed the murder and lied to police about the activities on the evening of February 5, 1983.

^[68]In the credibility battle described by Justice Blackmun in his dissent from the denial of certiorari review, the prosecutor used the glass jar to bolster Charles Westberry’s credibility (R. 2742).

^[69]Again, Kyles recognized that a defense attorney can use to good effect information that evidence may have been planted or that the police investigation was unreliable.

^[70]Between February 6th (the discovery of the body) and April 19th (the arrest of Charles Westberry), no fingerprint comparisons were made at all. Law enforcement was purportedly baffled and stumped by the murder.

^[71]Certainly if denial of guilt alone were enough to exonerate individuals suspected of a crime, then Jody Wright’s sworn testimony would have precluded him from having spent the last eighteen years on death row for a crime he did not do.

^[72]See Israel v. State, Case No. SC95873.

^[73]It is clear that Mr. Dunning knew the truth about the decanter because after Mr. Pearl obtained the proof of the decanter’s origins, Mr. Dunning chose not to present it. It was only after Mr. Pearl’s “sorry performance” that Mr. Dunning had the opening to make the argument that he knew was false (PC-R1. 819-20).

^[74]The jury was required to acquit if it had a reasonable doubt of Jody Wright’s guilt. The question under Kyles is not whether more likely than not the jury would have had a reasonable doubt. The question is whether confidence is shaken in the reliability of the jury’s determination that it possessed no reasonable doubt in light of the evidence discussed herein which was unknown to the jury.

^[75]Apparently, Clayton Hughes’ mother was one of elderly women living alone who was rape and murdered by Connie Ray Israel. See Israel v. State, Case No. SC95873.

^[76]Former Sheriff Pellicer also explained the phrase “pistol-toting deputy” as “the black person’s slang for part-time deputies” (Pellicer Depo at 16). He elaborated “[w]ent to a colored juke one night out in West Putnam, of course my predecessor was well known, he was raised up in Clay and Putnam County, mostly in Putnam, and every colored person in the county knew him. * * * But that night at this particular juke, the Sheriff had given me a pistol that he’d confiscated out of a robbery, told me to use it. * * * I - - he stepped upon the porch and I stepped up on the porch, and this black fellow stepped out and he stepped to one side and he said - - they called Sheriff Revels “Rivers”, “Mr. Rivers, I see you got a pistol-toting deputy” (Pellicer Depo. at 17-18).

^[77]Of course, Mr. Wright was never notified by either the State or Judge Perry of his ex parte standard operating procedure. After Mr. Wright filed this claim in 1993, he sought to depose Judge Perry in order to inquire. Judge Nichols delayed ruling on the requests until after Judge Perry was dead, thereby depriving Mr. Wright of due process and the opportunity permitted under State v. Lewis, 656 So.2d 1248 (Fla. 1995), to discover relevant evidence of constitutional error.

^[78]Undersigned counsel did not learn until reading the Randall Scott Jones initial brief filed on April 5, 2001, that Robert McLeod revealed in February of 2000 that Judge Perry’s standard practice was to have the State write the sentencing order on an ex parte basis. Given that neither the State nor Judge Perry revealed this standard practice for over sixteen years, Mr. Wright has been denied due process. Jones v. State, 740 So.2d 520, 524 (Fla. 1999).