i

Mr. Mordenti is under a sentence of death. Herein, Mr.

Mordenti appeals the circuit court’s denial of Rule 3.850

relief following an evidentiary hearing.

The following abbreviations will be utilized to cite to

the record in ths cause, with appropriate page number(s)

following the abbreviation:

"R. ___" - Record on direct appeal to this

Court;

"PC-R. ___" - Post conviction record on appeal

"PC-T. ___" - Evidentiary hearing transcript

"D-Ex. __" - Defense exhibits entered at the

evidentiary hearing and made part of

the post conviction record on appeal.

"S-Ex. __" - State exhibits entered at the

evidentiary hearing

All other citations will be self-explanatory or will

otherwise be explained.

Mr. Mordenti, through counsel, respectfully requests that

the Court permit oral argument.

testified that he "considered [Gail] to be the key witness."

(PC-T. 525). He explained that "impeaching her was the entire

case." (Id.). Karen Cox, the lead prosecutor, testified that

Gail’s credibility "was a very important issue, yes, it was."

(PC-T. 714). Richard Watts, Mr. Atti’s co-counsel, described

Gail as "the most important witness." (PC-T. 902). In fact at

the 2001 evidentiary hearing, Mr. Mordenti’s conviction was

summarized in the following fashion by ASA Vollrath and Mr.

Watts:

Q And as you sit here today, isn’t it the fact that

the jury just believed Gail Mordenti and didn’t

believe the alibi witnesses presented?

A Apparently.

Q Uh-huh. Isn’t that kind of a decision of a

question of fact, credibility factor, judging by the

jury - - isn’t that a determination of fact?

A Yes.

(PC-T. 959-60).

1

At the heart of Mr. Mordenti’s appeal is his claim of

innocence. Michael Mordenti and his attorneys maintain that

he did not commit the June 7, 1989, murder of Thelma Royston

nor participate in the murder in any way.

This Court acknowledged on direct appeal that "[n]o

physical evidence was produced linking Mordenti to the crime,

and Gail Mordenti [Milligan] was the only witness who was able

to place him at the scene of the murder." Mordenti v. State,

630 So.2d 1080, 1083 (Fla. 1994). The State’s case rested

entirely upon the credibility of Gail Mordenti Milligan, who

testified that "as long as I told the truth, that I had total

given total immunity for truthful testimony. On direct

appeal, this Court too believed that "complete immunity" had

been provided. Mordenti v. State, 630 So.2d 1080, 1083 (Fla.

1994). However at the 2001 hearing, it was revealed that Gail

merely received the standard use immunity that attaches to

sworn testimony that is given pursuant to a state attorney

subpoena (PC-T. 253).

in order to protect the real killer. In fact, Mr. Mordenti

was "not a suspect in the homicide until March 8, 1990, when

Gail mentioned him as the person who had committed the murder"

(PC-T. 790).

discussions with Larry Royston about murdering his wife began

at the end of February or early March. Her undisclosed date

book that had been in the State’s possession at the time of

trial revealed that the luncheon at which she and Larry first

discussed the murder occurred on April 11, 1989 (PC-T. 1005-

06, 1096-97). This revelation in post-conviction proceedings

2

trial that "as long as I told the truth, the whole truth, that

I had immunity" (R. 703). The jury was told that Gail had

been given total immunity to identify the person that she

Gail’s testimony was false and that the immunity deal was

misrepresented to produce a vouching effect. The jury was led

to believe that any falsehood exposed Gail to criminal

liability that she did not otherwise face; surely the State

would pounce on untruthful testimony to prosecute her. Yet,

her testimony was, as has been established and conceded, rife

below, Gail admitted when showed her undisclosed daily

calendar that her trial testimony was "wrong" regarding her

established that Gail’s finely woven time line was completely

and totally wrong. All the planning occurred after Michael

Milligan, her boyfriend and future husband, had moved in with

her in direct contravention of her trial testimony.

John Atti who surrendered his Florida Bar license in 1993 (PCT.

501). The lead prosecutor at Mr. Mordenti’s trial was

Karen Cox who at the time of the evidentiary hearing was under

suspension from the Florida Bar (PC-T. 5). Florida Bar v.

Cox, 794 So.2d 1278 (Fla. 2001).

3

Absolutely no physical evidence connected Mr. Mordenti to

the murder of Thelma Royston. The State’s case at trial was

entirely dependent upon the credibility of Gail Mordenti

Milligan. However, the evidence presented at the evidentiary

hearing demonstrated that Mr. Mordenti’s jury did not have all

of the information because Gail’s testimony was not truthful.

When the legal claims that Mr. Mordenti advances are fully

analyzed, it is clear that not only did he not receive a

constitutionally adequate adversarial testing, but also that

his conviction and death sentence represent a manifest

Mr. Mordenti was indicted by a grand jury in Hillsborough

County, Florida, on March 14, 1990 (R. 1591-1593). He was

charged with the first-degree murder of Thelma Royston and

was Gail Mordenti Milligan’s March 8, 1990, immunized

individual who matches the description of one of two men seen

near the victim’s barn about the time of the murder (PC-T.

797, 1088, 1102).

it obtained because the information did not implicate Mr.

Mordenti. Mr. Trevena testified that he told the State that

Larry Royston’s position was "that Gail Mordenti had

orchestrated [the murder]." (PC-T. 330). He advised the

State that "Mr. Royston had indicated to [Mr. Trevena] that

[Royston] did have a sexual affair with Gail Mordenti, and

that she wanted to continue that affair" (PC-T. 330). He

advised the State that Gail "wanted Mr. Royston freed up so

that she could share, I believe, in his assets" (PC-T. 331).

Mr. Trevena advised the State that Royston maintained that the

cell phone call on June 7, 1989, to Mordenti and Associates

was "innocent in nature and that it was relating to some type

of a boat or motor vehicle" (PC-T. 332). "There was no

discussion concerning any homicide or violence, that it was

related to business and that the call had been set up by Gail"

(PC-T. 336). Mr. Trevena indicated that there had been

discussions with the State prior to Royston’s death in the

nature of plea negotiations. However as Mr. Trevena explained

4

statement that she, on behalf of the victim’s husband, hired

Larry Royston, the victim’s husband, was also charged and

indicted. Mr. Royston was represented by John Trevena (PCT.

316). On March 18, 1991, on the eve of his trial, Mr.

Royston committed suicide (PC-T. 317). Thereupon, the

assigned prosecutors, Karen and Nick Cox, without notice to

Mr. Mordenti or his counsel obtained a court order directing

Mr. Trevena to reveal to the State "information that Mr.

Royston had provided [Mr. Trevena] during the course of the

representation" (PC-T. 328). The prosecutors did not share

Mr. Trevena’s statement with Mr. Mordenti nor with his counsel

to the State, Royston had been:

quite eager to give [the State] information about

Gail Mordenti. He had no knowledge about Michael

Mordenti, so he was not in a position to confirm or

deny the allegations against him, other than to let

the State know that Gail had set this up. She may

have hired Michael Mordenti, she may have hired

someone else, but he was not directly involved and

it was not at his behest to contract this killing.

(PC-T. 333). Mr. Trevena also disclosed to the State that

Royston was "scared of Gail Mordenti" (PC-T. 334). Royston

had indicated to Mr. Trevena that "he did not know what was

going on, and in the sense that her hiring of a hit man, would

she then turn around and, because he wouldn’t marry her, hire

a hit man to kill him" (PC-T. 335).

Mr. Trevena did not disclose this information to Mr.

Mordenti’s trial counsel due to the privilege. Even at the

2001 evidentiary hearing, Mr. Trevena still asserted privilege

when called to the stand by undersigned collateral counsel.

Mordenti’s innocence, "[e]very piece of this evidence that I

looked at, every witness that I talked to, every avenue that I

took indicated Mr. Mordenti was not guilty of the crime" (PCT.

508).

5

Mr. Mordenti’s trial commenced July 8, 1991. At his

trial, Mr. Mordenti was represented by John Atti and Richard

The penalty phase took place on July 29, 1991. The jury

returned a death recommendation (R. 1499). On September 6,

1991, the court sentenced Mr. Mordenti to death (R. 1547).

On direct appeal, this Court affirmed Mr. Mordenti’s

convictions and sentences. Mordenti v. State, 630 So. 2d 1080

(Fla. 1994). Subsequently, Mr. Mordenti filed for Rule 3.850

relief. The circuit court summarily denied. On appeal, this

Court reversed and remanded. Mordenti v. State, 711 So. 2d 30

unconstitutionality); IV (unconstitutional admission of

hearsay); V (record omissions resulted in an unreliable

transcript); VI unconstitutionally gruesome and shocking

photographs); VIII (ineffective assistance as to State v.

Neil, State v. Slappy, and Batson v. Kentucky); IX (violation

of right to silence); X (erroneous instruction on standard to

judge expert testimony); XII, (misleading testimony and

improper prosecutorial argument); XIV,(improper prosecutorial

argument at penalty phase); XV (failure to weigh mitigation in

the record); XVI (non-statutory aggravating factors

considered); XVII(failure to present Skipper evidence rendered

sentencing determination unreliable); XVIII (unconstitutional

consideration of CCP aggravating factor); XIX (fundamental

error as to HAC aggravator); XX (sentencing jury misled

regarding sentencing responsibility); XXI (improper shifting

of burden to prove life appropriate sentence); XXII (Florida’s

aggravating factors are unconstitutionally vague and over

broad); XXIII (innocence of the death penalty); XXIV

(prosecutor impermissibly argued death was required); XXV

(prohibition against juror interviews); XXVI (juror

misconduct); XXVII (Florida’s sentencing statute is

unconstitutional); XXVIII (incomplete 3.851 motion filed due

time limitation, workloads); XXIX (access to files and records

denied); XXX (Fla. R. 3.851 is unconstitutional).

6

(Fla. 1998).

Mr. Mordenti amended his Rule 3.850 motion on June 30,

2000 (PC-R. 488). The State filed its Response on August 28,

2000 (PC-R. 687-1044). On October 19, 2000, the lower court

held oral argument pursuant to Huff v. State, 622 So.2d 982

(Fla. 1993). On December 8, 2000 the lower court entered an

order granting an evidentiary hearing claims I (ineffective

assistance of counsel at the guilt phase), III (violation of

due process under Brady and Giglio); XIII (penalty phase Brady

and Gigilo violations and/or ineffective assistance of

counsel); and XXXI (cumulative error). The lower court

September 11 terrorist attacks.

7

On August 21, 2001, Mr. Mordenti filed another amendment

to his pending Rule 3.850 motion (PC-R. 1238-1241). Mr.

Mordenti amended claims I, II, III, and XII with evidence from

the FBI that undermined the trial testimony of FBI agent

Michael Malone. Mr. Mordenti also added claim XXXII alleging

that the Florida criminal justice system is unable to reliably

resolve cases that require an accurate credibility

determination. On August 28, 2001, the lower court granted an

evidentiary hearing as to the amendment of claims I and III

and denied as it related to claims II, XII and XXXII (PC-R.

1250-1254).

Mr. Mordenti had presented the testimony of eight witnesses

(PC-R. 1273)and introduced approximately 36 exhibits (PC-R.

1273-1275) when the State filed on September 20, 2001, its

"Notice of Additional Information" that disclosed that a

former member of Mr. Mordenti’s trial defense team, Paula

Montlary, was employed by the Attorney General in the Capital

Appeals Bureau (PC-R. 1276-1277). Over objection, the State

called Ms. Montlary as a witness after the evidentiary hearing

resumed in November.

The evidentiary hearing resumed for three days on

witness, the State objected to "Mr. Trevena discussing

8

substance of conversations that occurred regarding his

representation of Mr. Royston" (PC-T. 322). The State

asserted that the evidence was inadmissible hearsay. The

judge sustained the objection, but permitted Mr. Mordenti to

proffer the evidence (PC-T. 326-27).

The evidence was finally closed on November 27, 2001.

Written closing arguments were filed. On April 23, 2002, the

lower court entered its order denying Mr. Mordenti relief (PCR.

1384-1425). Mr. Mordenti timely filed his Notice of Appeal

on May 9, 2002 (PC-R. 1426).

The centerpiece of the State’s case was the immunized

testimony of Gail Mordenti Milligan - Michael Mordenti’s exwife.

According to Gail’s trial testimony, when she was

picked up by Detective Baker and Detective Kroll on March 8,

1990, "they said they had the power - - that they could grant

me immunity if I would tell them everything that I knew, and I

said that if they could do that, then I would tell them

everything that I knew about it, and they said fine. And then

nothing else was said until we got here" (R. 701). Gail was

asked by trial counsel "if I understand it, that they

approached you regarding the issue of immunity, and you did

not approach them asking for immunity." (R. 701). Gail

prosecutor who obtained a sworn statement from Gail on March

8, 1990, testified that he did not bestow total immunity upon

Gail. He testified that all Gail received was the standard

use immunity which accompanies any testimony given pursuant to

a subpoena (PC-T. 255-57).

and had once said flippantly that "it’s too bad I couldn’t be

interested in him" (PC-T. 998).

person" (PC-T. 1081). She "didn’t know Thelma. All I knew

was what Larry told me, and I thought she was just a really

horrible person. I didn’t know and it was very bad judgment.

I know it was bad judgment, and I know it was wrong" (PC-T.

1082).

recruit was former business partner John Robin "Jack" Gartley

(R. 673). Mr. Gartley did not testify at Mr. Mordenti’s

trial, but was called at the 2001 hearing and denied Gail’s

claim. Gail also claimed to have contacted "Jerry Carter" and

"Bill - - and it’s Rosenthal or Rosenfield" (R. 674-75).

9

Gail testified at trial that Larry Royston asked her to

testified Larry Royston came to her house for lunch "it was

either late February, or the beginning of March [of 1989]."

(R. 609). At that luncheon, Larry Royston asked Gail if she

unable to recruit three other individuals, she turned to her exhusband,

Michael Mordenti within a couple of weeks of the luncheon

Mordenti wanted to scope out the Royston place in the daytime

(R. 617). Gail testified that later Mr. Mordenti wanted to

take a second drive out to the Royston’s place, this time at

immunized statement, Det. King went to the motel that Gail had

identified to law enforcement, but was unable to find any

registration under Michael Mordenti’s name (PC-T. 794, 799).

Yet, Mr. Mordenti’s trial attorneys complained that they

were never timely given the name of this hotel and believed

that a Richardson violation occurred. Richard Watts even

wrote a memo to the filed documenting that "[t]he name of the

motel wasn’t disclosed to us. We couldn’t go and look." (PCT.

901; D-Ex. 68).

the planning and contact with Mr. Mordenti that she claimed

occurred, she pegged as happening before Michael Milligan

moved into her home as her boyfriend at "the end of March or

beginning of April" (R. 677). However, her daily calendar

that was in the State’s possession and was not disclosed to

the defense revealed that the luncheon discussion with Larry

Royston about the murder of his wife occurred on April 11,

1989 (PC-T. 1004-05).

had already moved in with her and as Gail herself testified,

Michael Mordenti did not go into her house in the middle of

the night to rouse her to go to the Royston place when

Milligan was with Gail.

Interestingly, Milligan’s description matches that of one

of the men seen near the Royston place on the night of the

murder shortly before the murder (PC-T. 797, 1088).

10

night. According to Gail’s trial testimony, Mr. Mordenti went

to Gail’s house in the middle of the night (R. 620). Gail and

Mr. Mordenti then went and checked into a motel near the

but definitely before Milligan moved in with Gail (R. 682).

Gail testified that Michael Milligan moved in to her house

At trial, Gail testified that Michael Mordenti had given

her a loaded gun. "Michael gave it back to me after the

murder, and I had it at the house" (R. 662). Gail gave the

gun and the accompanying bullets to the police in March of

that the bullets at the crime scene matched the bullets that

were with the gun.

attorney subpoena (PC-T. 787). She had previously been

questioned by the police on July 12, 1989, regarding the

homicide. At that time, she had indicated "she thought about

dating Larry, due to the fact he has a lot of money, but the

situation never came up" (PC-T. 776).

11

1990, and evidence was introduced at trial regarding the FBI’s

Gail testified that Mr. Mordenti gave her the gun

and bullets while she worked at Carlisle, which was "from

October of ‘89 until April of ‘90, and it had to have been

during that time" (R. 685). "[I]t was after I was working at

Carlisle Hyundai, and that was after Ms. Royston’s death" (R.

685).

Previously in her March 8, 1990, sworn statement, Gail

indicated that she received the gun "January, February, March

[ ] 89." Gail had explained on March 8, 1990, "yeah, it was

testimony placed the receipt of the gun before Thelma

Royston’s death. When asked at trial in cross-examination

about this prior inconsistent testimony, Gail testified "I

don’t remember making [that statement], no. I can read it,

but I don’t remember making it." (R. 689). Thus, the State

successfully precluded the introduction of the prior sworn

statement directly contrary to her trial testimony. In fact

during closing, ASA Karen Cox successfully argued to the trial

1990, sworn statement and was uncertain whether it or her

contradictory trial testimony was true as to when Mr. Mordenti

gave her the gun and bullets (PC-T. 1043-45). She indicated

that she had not "deliberately lie[d] at trial regarding when

[she] got the gun" (PC-T. 1044).

According to John Atti, Mr. Mordenti’s trial attorney,

this discrepancy was "absolutely pivotal" (PC-T. 563-64). By

virtue of Gail’s convenient inability to remember the prior

inconsistent statement and Karen Cox’s successful argument to

preclude mention of the prior inconsistency, Mr. Mordenti’s

jury was left unaware of the "absolutely pivotal"

inconsistency.

correct (PC-T. 788).

12

judge that defense counsel could not mention that the prior

According to Gail’s trial testimony, when she was picked

up by Detectives Baker and Kroll on March 8, 1990, "they said

they had the power -- that they could grant me immunity if I

would tell them everything that I knew, and I said that if

they could do that, then I would tell them everything that I

knew about it, and they said fine. And then nothing else was

said until we got here." (R. 701). Gail was asked at trial by

defense counsel "if I understand it, that they approached you

regarding the issue of immunity, and you did not approach them

asking for immunity" (R. 701). Gail responded, "that’s

At trial, the state utilized Mr. Royston’s cell phone

records to show numerous phone calls from Larry Royston to T&D

Auto Repair in the month of May of 1989 as evidence of Mr.

Royston’s efforts to pressure an unwilling Gail make the

Gail did not start working at T&D Auto Repair until June 1,

1989 (PC-T. 1022).

advised him that this call was a business call about selling a

boat (PC-T. 332).

Mordenti’s purported ‘mob’ association; however, defense

counsel failed to request a mistrial, this claim is

procedurally barred." Mordenti, 630 So.2d at 1084 (emphasis

the record, and this Court misperceived the circumstances.

The trial prosecutor, Ms. Cox, used the ambiguity to Mr.

Mordenti’s detriment. She elicited from Gail testimony that

Michael Mordenti "was involved in some kind of investigation

of bank robbery, and that was - - so he didn’t want any

conversations over the phone because he didn’t know if anyone

was listening in because of the bank robbery" (R. 658). In

conjunction with the presentation of Horace Barnes who

admitted to the jury that he was a bank robber who had

13

Royston’s phone records of a 13 minute cell phone call placed

from Larry Royston’s mobile phone to Mordenti & Associates on

June 7, 1989, the day of Thelma’s murder in an effort to link

Mr. Mordenti to Larry Royston. At trial, Gail testified that

At trial Karen Cox presented the testimony of Horace

Barnes. Mr. Barnes testified that Mr. Mordenti "let me know

that he was in the mob" (R. 747). In response to a defense

objection, Ms. Cox told the court that Horace would further

testify that Mr. Mordenti told Mr. Barnes that "he was a hit

dealings with Mr. Mordenti, the false implication was created

that Michael Mordenti was involved with this bank robber in

some fashion and was afraid of getting caught.

comments.

the February interview was introduced into evidence. It

indicated that in the interview Mr. Mordenti actually

"state[d] he has never met Larry Royston but has heard of him

via Gail. In fact he advised his daughter went to work for

Larry after the murder" (D-Ex. 5). This report exposed as

untrue Karen Cox’s argument that, "[t]he actions of Gail

Mordenti show you that she’s telling the truth, and the

actions of Michael Mordenti in his repeated denials of ever

knowing or even hearing of Larry Royston, show you beyond any

reasonable doubt that she’s telling you the truth" (R. 1201).

14

was inadmissible, but the "hit man" comment could be presented

(R. 749). Mr. Barnes testified that he saw Mr. Mordenti

illegally sell a friend of his a gun (R. 750). This was used

to support Gail’s testimony that Mr. Mordenti had "‘throw away

pieces’ and that she knew he ‘was dealing with some people

At trial, Karen Cox argued in closing that Mr. Mordenti

was not to be believed. Ms. Cox argued that in a February of

1990 interview of Mr. Mordenti, he said he did not know Larry.

She argued that on the tape recording of the March 8, 1990,

phone call from Gail to him, Mr. Mordenti acted as if he did

Mr. Mordenti was lying and that Gail was telling the truth.

When Gail testified at the evidentiary hearing on

Mordenti’s trial (PC-T. 1072). Ms. Cox confirmed her

possession of the date book before Mr. Mordenti’s trial (PC-T.

34).

that she invited Larry to a luncheon the day before she was

interviewed by the police regarding Fortune Bank’s claim that

either she or Jack Gartley were responsible for $200,000 that

was missing (PC-T. 1066; D-Ex. 58). She did know in advance

that the police wanted to question her on April 12, 1989 about

the missing money, but she "can’t tell you when they notified

me" (PC-T. 1069). In the statement to the police dated April

neck" (PC-T. 1067). Yet at the evidentiary hearing, Gail

indicated that she "wasn’t angry" with Jack Gartley; "I

trusted him and believed him because he was my partner" (PC-T.

1068). So when Larry indicated that he wanted to find someone

to kill his wife, Gail first contacted Jack Gartley, the man

she described as "an albatross around her neck" to see if "he

would talk to Larry, and they would arrange something" (PC-T.

1081).

Because defense counsel was not provided access to the

date-book (PC-T. 530-31), he did not know to inquire about the

proximity of the luncheon to the police questioning of Gail

Mordenti Milligan regarding the missing money.

15

established that the luncheon with Larry Royston was not in

February or March of 1989, -– as she testified to at trial --

but was on April 11, 1989 (PC-T. 1005-06). Gail testified at

the evidentiary hearing when confronted with her trial

testimony about the lunch with Larry, "If my book says that it

invitation. Gail also acknowledged that at this luncheon on

Royston ever about his desire to find someone to kill his wife

undertaken no actions in search of a killer. Thus, she

2/10/91. The undisclosed notes of this interview reveal that

Michael Milligan told Karen Cox that he went to New Mexico in

June of 1989, the month of Thelma Royston’s murder (D-Ex. 14).

In her trial testimony, Gail indicated that she understood

that the car that had been used to get to the crime scene was

left on the Mexican border (R. 638).

16

admitted her trial testimony was not the truth, the whole

truth.

In this undisclosed daily calendar, Gail’s entry for June

7, 1989, the day Thelma Royston was murdered included the

following:

* * *

ticket for Michael" referred to Michael Milligan, the man with

whom she was living and would marry in April of 1990 (PC-T.

1063). She testified that this was in reference to a

"speeding ticket" (PC-T. 1089). When asked how she knew that,

she answered "[b]ecause he got a lot of them." She had no

explanation for the entry "make calls again to Bus Co." (PC-T.

Mr. Atti, trial counsel, testified that he attempted to

come up with a time line regarding the events Gail stated

occurred (PC-T. 531). Had the date book been disclosed, he

would have used the evidence that pinned down the specific

dates of events, looked for inconsistencies in Gail’s versions

of events and that it would have been valuable information to

to be given the date book that revealed that the luncheon with

Mr. Royston who Gail had described as a man who "had money"

occurred the day before law enforcement was to interview her

regarding allegations that she had stolen over $200,000.

Gail’s claim that she tried to recruit Jack Gartley for Mr.

Royston’s "job" when on April 12, 1989, she is signing a sworn

statement describing Gartley as an albatross around her neck.

Of course at the 2001 hearing, Mr. Gartley unequivocally

denied Gail’s claim (PC-T. 878)("She never mentioned it to me

once").

17

have to cross examine her with (PC-T. 530, 532-33). The day

to law enforcement regarding an investigation in an allegation

trial counsel. Since he did not have the date book, counsel

could not know the timeline that revealed the significance of

the timing of the luncheon and the ongoing theft investigation

Gail was facing a mountain of debt and lawsuits that were not

revealed to Mr. Mordenti’s jury. First, Fortune Bank and the

police were trying to recover over $200,000 (PC-T. 1066-67; DEx.

56, 58). Gail was also being sued by "the Mulhollan[d]

attorneys" in connection with her receipt of $50,000 from a

defendant, Mr. Check, in a civil suit filed by her exboyfriend

Glenn Donnell. Mr. Donnell’s lawyers believed that

Gail and her boyfriend had arranged the financial transaction

only missed one house payment in July of 1989 (PC-T. 1077).

exhibits documenting Gail’s financial situation including:

1. D-Ex. 58: Criminal Investigation of Gail Mordenti

for theft of $200,000 conducted in April, 1989.

2. D-Ex. 52: Gail’s bankruptcy petition filed 10/89.

3. D-Ex. 53: Law Office of Mullholand and Mullholand

suit filed against Gail Mordenti filed in 1988.

4. D-Ex. 54: Great Western Mortgage foreclosure suit

initiated December 1989, alleging non-payment for months.

5. D-Ex. 55: Small Claims suit filed July 29, 1989.

6. D-Ex. 56: Fortune Savings band Suit filed July 29,

1989 in the amount of $200,000.

call to Larry Royston to invite him to lunch at her house was

just a coincidence, "at that point I didn’t really know that I

had a whole bunch of financial concerns. At that point I was

in the process of trying to get the cars ready to sell, and my

bills would be caught up and I wanted to get back into

business for myself" (PC-T. 1080).

Of course, Gail did state at the 2001 hearing, "I once

flippantly said, it’s too bad I couldn’t be interested in

[Larry Royston] because he had money, and it seems that

18

to deprive the lawyers of their contingency fee (PC-T. 1074-

76; D-Ex. 53). Gail was sued by Great Western Bank in late

1989 because she "missed the July payment, 1989" (PC-T.

claim bankruptcy because I had talked to an attorney about it,

and he said it probably would cost me 30,000 or 40,000 to try

to defend myself against it, which I didn’t have that kind of

money" (PC-T. 1079). But in 2001, Gail said "no," she had not

Bankruptcy "bothered [her]. It’s a blemish on your record,

but I didn’t have any other choice" (PCT.

everyone that I have had a relationship with or been married

to didn’t" (PC-T. 998).

evidence that he was necessarily calling Gail; he could have

been calling Glen Donnell about cars. We’re assuming a fact

not evidence, that he called. The testimony from Glen Donnell

(R. 1252-53). The objection was overruled.

understood that Gail Mordenti Milligan did not have total

immunity, merely "use immunity" (PC-T. 27). As trial counsel

noted, he was misled when Ms. Cox did not correct Gail’s

inaccurate trial testimony (PC-T. 985).

19

In 2001, Gail testified that she began employment at Glen

1022)("I looked over my testimony, and I seemed very sure it

was June 1st"). Yet, Ms. Cox had argued over objection in her

guilt phase closing that Larry Royston’s cell phone records

showing phone calls to Glen Donnell’s place of business ("T

Gail’s testimony that Larry kept calling her, "you’ll see that

Larry Royston places numerous telephone calls to T & D. In

Contrary to Gail’s trial testimony, Lee Atkinson, the

prosecutor who obtained a sworn statement from Gail on March

8, 1990, testified in 2001 that he did not bestow total

immunity upon Gail. He testified that all Gail received was

the standard use immunity which accompanies any testimony

When Det. Baker testified in 2001, he indicated that

Gail’s conduct at the time of her arrest was "clearly the act

of somebody who was so upset that they are not being

calculating." (R. 1193).

that she ever contacted him about killing Larry’s wife was

untrue, as well as Glen Donnell’s statement to the police that

she did mention to him that in May that Larry was looking for

someone to kill his wife (PC-T. 1083).

concerned the sale of a boat.

20

contrary to Gail’s testimony, it was Gail who first brought up

immunity (PC-T. 788; D-Ex. 6). "Ms. Mordenti advised that she

knew more about the homicide than she originally told us, that

she testified in 2001, Gail said that Det. Baker’s testimony

At the 2001 hearing, Ms. Cox identified undisclosed

handwritten notes of her interview of Gail in which Gail

advised:

another statement by Gail that there was at least romantic

potential between Gail and Larry that they had discussed:

(D-Ex. 14, at 2, lines 17-20). This note also said that Gail

particularly significant given that the defense knew of a

witness that reported that Mr. Mordenti had called in mid-1989

trying to sell a boat for Gail that had been used in a movie

(PC-T. 276-77, 915).

21

had advised that:

These notes reflect that Gail told Ms. Cox that Larry

Royston indeed had a boat for sale and that she was trying to

help him find a buyer. Mr. Atti testified that this

information was significant because "[i]t would have showed

the connection between Gail and Larry Royston " (PC-T. 527).

Neither these notes reflecting a statement of a State’s

witness nor the content was disclosed to Mr. Atti (PC-T. 522).

At the 2001 hearing, Karen Cox identified her handwritten

notes documenting a 2/10/91 interview of Michael Milligan (DEx.

14). She indicated that she tried to make the notes

"accurate and make them in a summary fashion such that they’ll

be of some value to me in the future" (PC-T. 41). The notes

were introduced into evidence. They reveal that Milligan

reported that he had worked for Michael Flynn of Flynn Motors

as a transportation representative since 1985, that he met

Gail in 1988 and that he starting seeing her in March 1989.

The notes revealed:

New Mexico after the bank robbery is a clear effort at

confabulation. After Horace Barnes used a car that he had

obtained from Mr. Mordenti’s place of business to rob a bank,

Mr. Mordenti assisted the FBI in tracking him down in New

Mexico (PC-T. 280-81). Thus, Mr. Mordenti’s car did end up in

New Mexico. However, the bank robbery did not occur until

January of 1990. So the chances that Milligan was in New

Mexico in 1989 for that stated purpose, months before the bank

robbery occurred, are nil.

Carmody happened to be at Mr. Mordenti’s office conversing

with him when the State arranged for Gail to call Mr. Mordenti

22

Milligan told Ms. Cox that he went to New Mexico in June of

not provided with these notes nor advised of the content (PCT.

523-24).

FBI agent Barry Carmody was not called to testify at Mr.

Mordenti’s trial. At the 2001 hearing, he explained that Mr.

Mordenti had sold Horace Barnes an automobile. Subsequently,

Mr. Barnes claimed that the auto was in need of repair. Mr.

Barnes took the auto back to Mr. Mordenti and got a loaner.

Mr. Barnes used the loaner in a January, 1990, bank robbery

(PC-T. 280-82). Agent Carmody testified that there was no

evidence that Mr. Mordenti was involved in the robbery or with

Horace and Tracey Leslie (Mr. Barnes’ girlfriend) (PCR. 282,

289). As a result of Mr. Mordenti’s assistance, Mr. Barnes

and his girlfriend were arrested in New Mexico (PCR. 282).

Mr. Mordenti picked Mr. Barnes out of a line up and testified

in order to try to get him to make incriminating statements

(PC-T. 287). Agent Carmody testified that state law

enforcement was "irritated" over his presence at Mr.

Mordenti’s office and expressed it (PC-T. 288).

State presented at trial. The jury heard Mr. Barnes, a bank

robber testify that he knew Mr. Mordenti, and then falsely

represent that Mr. Mordenti had told him he was connected to

the "mob" and had illegally sold guns. The jury heard Gail

testify that Mr. Mordenti was involved with bank robbers and

had throw away guns (R. 658). The implication was involvement

as assisting the bank robbers, not in helping to apprehend

them. The trial prosecutors did not disclose the notes of

their interview of Agent Carmody (PC-T. 54, D-Ex. 22).

In 2001, Mr. Atti did acknowledge that he had been aware

that Mr. Mordenti had been "a good guy helping to solve the

problem" (PC-T. 547). Having read the trial transcript, Mr.

Atti recognized that someone at the trial could have concluded

from Gail’s testimony that "Michael Mordenti was participating

in the bank robberies" (PC-T. 547). Mr. Atti recognized that

he had failed to clarify the situation (PC-T. 547-48).

During the State’s cross-examination in 2001, the

following questioning occurred:

Q So Mr. Carmody, the agent for the FBI, came in,

gave full testimony about how - - what a wonderful

person Mr. Mordenti was, to have given this

situation - - was allowed to catch the two bank

robbery suspects, correct?

A That’s correct.

Q The jury heard that?

A I believe so, yes.

Q So when Ms. Mordenti testified that Mr. Mordenti

was involved in a bank robbery investigation, they

actually had the information to process that

statement, correct?

A The first part of the statement.

(PC-T. 622-23).

23

Horace Barnes testified in 2001 that his trial testimony

was untrue (PC-T. 297-98). Mr. Barnes was mad and angry at

Mr. Mordenti after he learned that it was Mr. Mordenti who

turned him in to FBI agent Barry Carmody (PC-T. 292-93) for a

bank robbery that Mr. Barnes and his girlfriend, Tracey

There is only one problem with the State’s scenario; it

Q Now, you were asked questions about Barry

Carmody’s testimony. Is it your understanding that

Barry Carmody testified at this trial?

A Yes.

Q What’s that based on? If the record shows that

he didn’t testify, would you stand corrected?

A Ms. Vollrath asked me the question.

(PC-T. 648).

obvious: "It was apparent Barnes wanted a piece of Mordenti

because he burned him and his girlfriend" (D-Ex. 10 at p. 3).

24

Mordenti for his arrest and his trial testimony was "pay back"

(PC-T. 310). Mr. Barnes had been interviewed by Det. Baker

with the Hillsborough Sheriff’s Office in connection with the

Royston homicide on March 7, 1990 (PC-T. 307). Mr. Barnes

advised Det. Baker that Mr. Mordenti was dirty and that he was

However, Mr. Barnes indicated in 2001 that he had been lying

all along because of his anger. Mr. Barnes ultimately pled

guilty to the bank robbery (PC-T. 305).

Mr. Barnes testified that the prosecutor, Ms. Cox, talked

to him and said that "she needed this case real, real bad, and

you know, she told me that if I cooperate with her, she’d do,

you know, a couple of favors for me" in the form of possibly

dropping a state detainer or helping him get with his

girlfriend Tracey Leslie(also in jail) "because you can’t have

any contact in prison system" (PC-T. 296). Mr. Barnes

testified that arrangements were made to have contact with

that he was not promised anything in return for his testimony

was untrue (PC-T. 746).

25

Tracey Leslie after he talked to Karen Cox. He had contact in

At the 2001 hearing, Ms. Cox acknowledged that Mr. Barnes

and Ms. Leslie may have been put in a holding cell together:

I don’t remember whether he was - - you know, I know

Tracy Leslie was transported, and I don’t know

whether they were in the holding cell together, it’s

very likely I might have said, you can’t talk to

each other about your testimony.

(PC-T. 686).

At the evidentiary hearing Karen Cox also identified her

co-prosecutor husband’s writing and note from the

prosecutorial file. The note bore Tracey Leslie’s name and

59).

At the 2001 hearing, Nick Cox identified his undisclosed

notes of an interview he and Karen Cox conducted on March 20,

1990 of Larry Royston’s lawyer, John Trevena (PC-T. 81-82, DEx.

23). Mr. Trevena had represented Larry up until his

suicide (PC-T. 317). The interview occurred as a result of an

to submit to the interview by the State (PC-T. 328, D-Ex. 22).

The order stated:

The attorney-client privileged does not apply to

this factual situation involving information

obtained from the deceased client’s attorney which

could be relevant in the investigation of the

When the court ordered him to answer undersigned counsel’s

questions on a proffer, he did. However prior to the in court

proceeding or during the proceedings, undersigned counsel was

not given access to records from Mr. Royston’s estate to

ascertain what records of this boat still existed that would

have assisted Mr. Mordenti at trial.

26

client’s death.

(D-Ex. 22).

After the State’s objection to John Trevena’s testimony

was sustained, he testified on proffer that when Karen Cox

provided him with a signed copy of the order obtained by the

privileged information, pursuant to that order" (PC-T. 327-

28). Mr. Trevena in the proffer revealed what privileged

information had been provided the State. In the proffer, Mr.

Trevena indicated that Mr. Royston had advised him that the 13

Mr. Royston had "explained the call as being innocent in

nature and that it was relating to some type of sale of a

boat" (PC-T. 332). Of course, this information would have

been significant information to Mr. Mordenti’s defense team

interview, he did become aware that "Karen Cox listed [him] as

a witness for the State at Mordenti’s trial" (PC-T. 337-38).

However in 2001, he had "no independent recollection of

speaking with [Mr. Atti] about it" (PC-T. 338).

Mr. Atti testified that he was never aware that John

Larry Royston, or statements from a listed witness, John

Trevena. Accordingly, their disclosure to the defense was

required.

27

Trevena talked to Karen and Nick Cox and revealed attorney

client material regarding what Larry Royston had to say about

this homicide and that if he had known about it, it would

"definitely" be something he would remember (PC-T. 534). Even

though the State listed John Trevena as a witness on its list

of witnesses, the statements Mr. Trevena provided to the State

were not disclosed to the defense. See, Rule 3.220(b), Fla.

testified that the defense was never provided these notes nor

the significant information contained therein (PC-T. 912-13).

Ray Cabral did not testify at trial, but explained at the

2001 hearing that Mr. Mordenti had called him about a boat for

sale and that he gave a sworn statement about it on April 22,

1990 (PC-T. 275). Mr. Cabral frequently would travel from up

north to Florida to see his elderly parents, buy boats, return

north with the boats and re-sell them (PC-T. 276). The

conversation he had with Mr. Mordenti concerned a boat Gail

was trying to sell for someone. However, Cabral was not

interested in buying the boat (PC-T. 277).

At the 2001 evidentiary hearing, Det. King testified:

Q. At some point in time, did you travel to Tarpon

Springs to establish a hotel that Gail Mordenti said

that she and Mr. Mordenti went to, and then he

subsequently left and scoped out the victim’s

property?

28

A. Yes, ma’am.

Q. Okay. Do you recall approximately when that

was?

you look – what did you do – did you find the – I’m

(PC-T. 793-94) (emphasis added). Det. King indicated that he

went through the records and did not find a registration for

Michael Mordenti, Michael Milligan, Larry Royston or Gail

Mordenti. On cross examination, Detective King explained:

Q. The other thing is, in reference to checking out

the motel, you indicated it would have been in March

of April of 1990, that you went to the motel?

A. I believe that’s when it was, yes, sir.

Q. And so that would have been after Gail

Mordenti’s arrest or when she first gave her

A. Correct.

Q. So that was the follow up to that?

A. That’s where the information came from, yes,

sir.

(PC-T. 799-800). This information was not provided to the

defense. Mr. Watts testified, "[t]he name of the motel wasn’t

disclosed to us. We couldn’t go and look" (PC-T. 901, D-Ex.

68).

Mr. Atti was suspended from the practice of law by the Florida

Bar (PC-T. 501). As of 2001, Mr. Atti had not sought

reinstatement. He no longer practices law.

29

Ms. Cox testified in 2001 that she did not disclose the

name of the motel because she did not learn it until the eve

of trial:

It was shortly within weeks before the trial, maybe

two or three weeks, maybe even less, and, basically

Gail Mordenti, I believe, drove by and identified

the hotel because it couldn’t - - she would describe

it or she had provided information about it, she had

been questioned about it and we could never figure

it out. So she finally went out at my request, I

believe, and said, okay, I’ve driven by, it’s this

particular hotel.

(PC-T. 689).

At the time of the case, Mr. Mordenti’s lead trial

attorney, John Atti, had been practicing general law for less

than three years and had never handled a capital murder trial,

Atti’s felony experience was very limited. He testified that

he graduated law school in 1978 and "did not practice law

right away" (PC-T. 503). He "reapplied – started taking the

Bar in 1985 [and] was admitted in 1987" and worked for a

lawyer in Gulfport (PC-T. 503). Mr. Atti received training in

various fields, went into private practice one year later

handling a "variety of cases"(PC-T. 504). Mr. Atti testified

that he had not previously handled a murder case and that his

case load prior to this case was "[b]attery cases, DUI cases,

domestic type cases. I handled a lot of federal cases

30

regarding court appointed that ranged – that were all kinds of

variety, including assault with a deadly weapon – just any

case that came down, basically" (PC-T. 540). Regarding his

trial experience, he testified that it:

consisted of a couple of DUI cases that resulted in

an acquittal, one aggravated battery case that

resulted in a conviction and couple of other

misdemeanor battery cases that were dismissed prior

to the trial – actually beginning while we were

sitting the jury, I believe.

(PC-T. 504). Mr. Atti had handled only one felony trial as a

lead attorney prior to Mr. Mordenti’s case (PC-T. 504).

Mr. Atti undertook Mr. Mordenti’s case for a total fee of

$50,000 (PC-T. 505). It was Mr. Atti’s expectation that this

fee would cover all expenses associated with Mr. Mordenti’s

case. Mr. Atti explained, "[a]ctually, I didn’t at that time

expect the case to go to trial." (PC-T. 506). Thus, the fee

was the amount that Mr. Atti thought it would take "to get the

case prepared." (PC-T. 506). Mr. Atti entered his notice of

appearance on January 7, 1991 (PC-T. 502). Mr. Atti in his

testimony explained why he agreed to take the case:

I was struggling financially. A lot of my clients

were people that I knew had worked at the St. Pete

Times and hadn’t paid me, quite frankly, and anybody

in the legal business knows to get your money up

front. Well, I was a nice guy. I let people make

payments and really didn’t receive a lot of payments

and really was struggling to pay my bills at the

time and to pay for my bills.

(PC-T. 514-15).

Mr. Atti explained the basis for his belief that Mr.

Mordenti’s case would not go to trial:

31

I had actually thought that the state attorney, with

all the evidence, would see Mr. Mordenti was not the

party to be charged, that there were other people

clearly more in a position that could have been

involved with the crime, and I thought once they saw

that evidence and saw the information that I had

read that Mr. Cohen worked up, that they would come

to that same conclusion. In fact, at one point

early on, I remember talking to one of the state

attorneys, Nick Cox, about that they didn’t have a

very good case, that we may be able to work out an

agreement. I believe he mentioned something about

five to seven years. When I approached Mr. Mordenti

with that, he said, no way, I’m totally innocent. I

agreed with him. We went forward from that point.

(PC-T. 507). Mr. Atti also expected the co-defendant, Mr.

Royston, to be tried first, "Yeah. It was clear that the

Royston case was going to go first before Mr. Mordenti’s case"

(PC-T. 509). This expectation affected his preparation: "It

was my expectation that during the trial, I would gather the

information, if an, that the State had linking Mr. Mordenti to

the crime and also, of course, hear the information that was

available regarding Mr. Royston and his possible involvement

in the crime" (PC-T. 509). Mr. Atti anticipated monitoring

the Royston trial and using it as a prime discovery tool (PCT.

509-10). Mr. Atti testified that Mr. Royston’s suicide

"drastically" changed his expected approach to handling Mr.

Mordenti’s case:

it changed it drastically in that I was expecting

some information and had reason to believe from Mr.

Trevena that there was going to be something very

helpful for Mr. Mordenti come out of that case, that

and also the fact that I was not going to be able to

see what evidence that the State was going to

present regarding the murder changed the entire way

that I was looking at the case.

32

(PC-T. 510).

Prior to Royston’s suicide, Mr. Atti had a conversation

with Mr. Royston’s attorney, John Trevena. Mr. Trevena would

not reveal attorney-client privilege and did not give

specifics but "he indicated to me that there was some

information that was going to be really helpful to my client

After Royston’s suicide, Mr. Atti realized that the State

had become serious about going after Mr. Mordenti, "there

seemed to be a change by the prosecutor, mainly Karen Cox,

that suddenly Mr. Mordenti was her focus" (PC-T. 511). So, he

decided that he needed help. Mr. Atti enlisted Richard Watts

to serve as co-counsel. Mr. Watts filed his notice of

appearance in Mr. Mordenti’s case on May 21, 1991,

approximately 45 days before Mr. Mordenti’s capital trial

began (D-Ex. 64). The agreement was that Mr. Watts would

handle the penalty phase and alibi witnesses (PC-T. 891-92).

Mr. Atti was to pay Mr. Watts $5,000 from his $50,000 fee (PCT.

513).

Mr. Atti had not anticipated the cost of discovery

depositions, assuming (incorrectly) that the case would be

dismissed (PC-T. 515-16). The cost of discovery depositions

was also to be paid from the $50,000 fee. Mr. Atti did not

33

realize "the extent not only the discovery depositions, but

what it would cost to travel to depositions where there were

witnesses that I needed to talk to." (PC-T. 516).

Mr. Watts, who at the time of Mr. Mordenti’s trial, had

participated in five to ten capital cases, had approximately

45 days to prepare for Mr. Mordenti’s trial (PC-T. 893).

Regarding his level of experience at that time and the time he

had to prepare in Mr. Mordenti’s case, Mr. Watts testified:

Q. Okay. In terms of that experience, what is

having six weeks to prepare –

A. Never have I had that short of period of time.

Usually it’s measured in a year – usually it’s about

a year from getting the case to actually going to

trial.

Q. Okay. In the course of getting ready for trial,

what did you find? What did you conclude?

A. Well, let me qualify that first answer. I’ve

come in late in trial and only done a second phase,

and I’ve done it comfortably more than once, usually

more than six weeks. But when I got involved in

this case, it became apparent that Phase I would

need some more work, a lot more work, and I was

concerned at the amount of work that hadn’t been

done. We’re on the eve of trial, and the case isn’t

ready. I’m not familiar – I wasn’t familiar with

the entire scope of Phase I. I concentrated on

preparing the alibi, and I was pretty near ready –

pretty near ready for the alibi, but not ready. It

needed polishing.

(PC-T. 893). Mr. Watts acknowledged that Mr. Mordenti’s

predecessor counsel, Barry Cohen, had compiled voluminous

materials regarding the case. However, the quantity of

materials to review exceeded the time in which to do it:

Q. But also, I mean, my question then also is, in

terms of having a lot of material that somebody else

34

has collected and hands off to you, does that save

you time?

A. Not necessarily. You have to read it, and since

you didn’t generate it, you’re not exactly sure of

the perspective that it’s coming from, so it doesn’t

have the same meaning as if you generated the

material.

Q. Okay.

A. It saves some time, maybe.

Q. In fact, I mean, did you have concerns about the

defense being ready for trial?

A. Yes.

Q. Did you express those concerns?

A. Yes.

Q. Explain to the Court what you felt.

A. Well, I felt we weren’t ready. In a case of

this magnitude, first of all, this is a complex

case. I didn’t know all the players. I didn’t know

all the potential players, and I didn’t know the

scenarios. Even as a Phase II lawyer, I like to

know that, and I make it my business to find out

what’s going on in Phase I and I’m willing to

participate in that because to me it’s important. I

expressed those concerns to lead counsel and I was

brushed aside. We’ll be ready, he said, we’re okay.

Q. And speaking of – you indicated some concerns

about not knowing the players. Were you involved in

actually doing depositions?

A. This was one of those – another – my growing

role, I hadn’t – I hadn’t intended to take the

depositions, but Mr. Atti was ill and time was near.

So I stood in for him at the depositions.

(PC-T. 894-96). Accordingly, Mr. Watts testified that in his

opinion Mr. Mordenti did not receive the trial that he was

entitled to because the defense was not adequately prepared

(PC-T. 937-38).

35

At the guilt phase, defense counsel presented the

testimony of Anna Lee, who testified at trial that she was

with Mr. Mordenti on June 7, 1989. She testified that she

attended an auto auction with him and went to a Shoney’s

restaurant afterward. She was able to establish the date

because she had just undergone shoulder surgery days before.

The State argued that Ms. Lee was lying (and the other alibi

witnesses that were called at trial) for Mr. Mordenti because

she went out and found witnesses who could verify his

whereabouts.

Steve Cook, Anna Lee’s son, lived with his mother and was

with her early afternoon of June 7, 1989 (PC-T. 151-152). He

was not called as a witness to testify at trial. Mr. Atti

had no reason for not calling Steve to corroborate his

mother’s testimony. Steve was close to his mom, and they left

each other notes to let each other know what was going on (PCT.

(PC-T. 151; D-Ex. 31). In that 1991 deposition and at the

2001 hearing, he testified that on June 7, 1989 his mother was

at Mr. Mordenti’s business during the day, came home, then

left again. (PC-T. 153). Steve was upset with his mother

because she was out until 4:00 a.m.; Steve’s mother and Mr.

Mordenti were on a date (PC-T 151). He learned that she had

been with Mr. Mordenti and they had attended an auto auction,

had a late dinner and drove to St. Petersburg (PC-T. 153).

Steve remembered the date because his mother had just had

36

surgery on her right shoulder and he did not want her to be

out because of it (PC-T. 154, 159). When Mr. Mordenti was

charged with the June 7, 1989 murder, Steve knew it could not

be true because he remembered that his mother was with Mr.

Mordenti. His mom’s surgery to her arm triggered his memory

(PC-T. 154). He and his mother talked about the date and she

tried to find witnesses to verify that they were at the

auction because she knew Mr. Mordenti was with her that night.

1. Mr. Mordenti was deprived of his rights to due process

when the State knowingly presented false or misleading

evidence and/or argument at his trial in order to obtain a

conviction and sentence of death. Further, the State failed

to disclose a wealth of exculpatory evidence in its possession

to Mr. Mordenti. Confidence in the reliability of the outcome

of the proceedings is undermined by the non-disclosures. The

circuit court erred in its analysis of the components of this

due process claim and failed to consider the cumulative effect

of the prejudice suffered as a result of the State’s misdeeds.

Mr. Mordenti’s convictions and sentence of death must be

vacated and a new trial and sentencing ordered.

2. Mr. Mordenti was deprived of the effective assistance of

counsel at his capital trial and sentencing. As a result of

counsel’s unreasonable and deficient performance, Mr. Mordenti

was prejudiced and confidence in the reliability of the

outcome at both the guilt and penalty phases of the capital

37

trial are undermined. Mr. Mordenti’s convictions and sentence

of death must be vacated and a new trial and sentencing

ordered.

3. Mr. Mordenti was deprived of a full and fair evidentiary

hearing when the State over objection was permitted to call

Paula Montlary as a witness. The State’s conduct violated the

attorney-client privilege.

4. Mr. Mordenti was deprived of effective assistance of

counsel at the penalty phase of his capital trial when counsel

unreasonably failed to present evidence of compelling and

substantial mitigating circumstances.

5. Mr. Mordenti was denied due process when the circuit

court erroneously summarily denied several of his claims which

denied him a full and fair evidentiary hearing.

6. The circuit court erred in summarily denying Mr.

Mordenti’s newly discovered evidence claim and failure to

consider evidence supporting it.

In addressing this Claim below, the circuit court made

this Court. Rogers v. State, 782 So.2d 373, 377 (Fla. 2001).

The circuit court addressed some of Mr. Mordenti’s claimed

38

Giglio violations, but made erroneous legal determinations

while denying relief (PC-R. 1412, 1416, 1417). The circuit

court erroneously ruled that the Brady claim included a

"diligence" element (PC-R. 1409). The circuit court also

failed to find "prejudice" from the various non-disclosures by

the State (PC-R. 1410, 1415, 1418). The circuit court further

failed to conduct any cumulative analysis of the prejudice

arising from the non-disclosures. The circuit court further

failed to address several key aspects of Mr. Mordenti’s

allegations and the evidence presented at the evidentiary

hearing that supported them.

In Giglio v. United States, 405 U.S. 150, 153 (1972), the

Supreme Court recognized that the "deliberate deception of a

court and jurors by the presentation of known false evidence

is incompatible with ‘rudimentary demands of justice." The

Supreme Court has further recognized that a prosecutor is:

the representative not of an ordinary party to a

controversy, but of a sovereignty whose obligation

to govern impartially is as compelling as its

obligation to govern at all; and whose interest,

therefore, in a criminal prosecution is not that it

shall win a case, but that justice shall be done.

Berger v. United States, 295 U.S. 78, 88 (1935). Accordingly,

the Court "forbade the prosecution to engage in ‘a deliberate

deception of court and jury.’" Gray v. Netherland, 518 U.S.

152, 165 (1996), quoting Mooney v. Holohan, 294 U.S. 103, 112

39

(1935). This Court has stated "[t]ruth is critical in the

operation of our judicial system." Florida Bar v. Feinberg,

760 So.2d 933, 939 (Fla. 2000); Florida Bar v. Cox, 794 So.2d

1278 (Fla. 2001). If the prosecutor intentionally or

knowingly presents false or misleading evidence or argument in

order to obtain a conviction or sentence of death, due process

is violated and the conviction and/or death sentence must be

set aside unless the error is harmless beyond a reasonable

doubt. Kyles v. Whitley, 514 U.S. 419, 433 n.7 (1995). The

prosecution not only has the constitutional duty to fully

disclose any deals it may make with its witnesses, United

States v. Bagley, 473 U.S. 667 (1985), but also has a duty to

alert the defense when a State’s witness gives false

testimony, Napue v. Illinois, 360 U.S. 264 (1959); and, to

refrain from deception of either the court or the jury.

Mooney v. Holohan. A prosecutor must not knowingly rely on

false impressions to obtain a conviction. Alcorta v. Texas,

355 U.S. 28 (1957)(principles of Mooney violated where

prosecutor deliberately "gave the jury the false impression

that [witness’s] relationship with [defendant’s] wife was

nothing more than casual friendship"). The State "may not

subvert the truth-seeking function of the trial by obtaining a

conviction or sentence based on deliberate obfuscation of

relevant facts." Garcia v. State, 622 So.2d 1325, 1331 (Fla.

1993).

In cases "involving knowing use of false evidence the

introduce evidence of Karen Cox’s pattern and habit of

presenting false and misleading evidence, improper

prosecutorial misconduct. However, the lower court refused to

consider this evidence:

Defendant maintains that egregious prosecutorial

misconduct and discovery violations took place

during his trial. Defendant is also quick to point

suspended by the Florida bar. This claim, while

undeniable, is not appropriate for further analysis

by this Court.

The court further stated in a footnote:

This fact, in and of itself, does not demonstrate to

the Court that Ms. Cox neglected her duties as

mandated by the Florida Bar during the prosecution

40

defendant’s conviction must be set aside if the falsity could

in any reasonable likelihood have affected the jury’s

verdict." United States v. Bagley, 473 U.S. at 678, quoting

United States v. Agurs, 427 U.S. at 102. Thus, if there is

"any reasonable likelihood" that uncorrected false and/or

misleading argument affected the verdict (as to both guiltinnocence

and penalty phase), relief must issue. In other

words, where the prosecution violates Giglio and knowingly

presents either false evidence or false argument in order to

is proven harmless beyond a reasonable doubt. Bagley, 473

U.S. at 679 n.9.

In denying this claim, the circuit court misapplied the

(See PC-R 1409 at footnote 24). The circuit erred in refusing

to consider the instances of prosecutorial misconduct in other

cases. It is relevant evidence of the prosecutor’s pattern.

41

During Ms. Cox’ closing argument at the trial, she

stated:

And when [Michael Mordenti] was questioned again

in February of 1990, "No, I don’t know Larry

Royston. I’ve never heard of Larry Royston."

But lo and behold, when Gail calls him on the

phone, despite his repeated denials of ever having

even heard of the man, Gail says, "Oh, should I - -

should I call Larry?"

"No, don’t call him." He doesn’t say, "Larry

who? What are you talking about?"

(R. 1195). However, D-Ex. 5, a police report, presented at

the evidentiary hearing, establishes that this argument was

false. According to D-Ex. 5, Michael Mordenti was interviewed

on February 20, 1990, and he "state[d] he has never met Larry

added). Ms. Cox testified that she would have had possession

of this report (PC-T. 23).

Ms. Cox’s false argument was the lynchpin of her effort

to convince the jury that Gail’s story was credible and worthy

of belief. Ms. Cox concluded her guilt phase closing by

repeating her false argument, "The actions of Gail Mordenti

42

show you that she’s telling the truth, and the actions of

doubt that she’s telling you the truth." (R. 1201)(emphasis

added). The jury was given a completely "false impression" of

Mr. Mordenti’s truthfulness to law enforcement. Alcorta v.

Texas; Garcia v. State.

The circuit court did not specifically address this false

argument in its order denying relief. This was error. A new

trial is required.

picked up on March 8, 1990, immediately inquired if she could

get immunity. This testimony is corroborated by D-Ex. 6 which

was in Ms. Cox’s possession at trial (PC-T. 25). Yet, Ms. Cox

argued to Mr. Mordenti’s jury that "before [Gail] was promised

immunity, she asked about, ‘What’s going to happen to me? Can

I go to jail?"(R. 1192-93). Ms. Cox argued that Gail’s

conduct was "clearly the act of somebody who was so upset that

added).

According to Det. Baker’s testimony in 2001, that was a

false argument to the jury. Det. Baker testified in 2001 that

law enforcement was not the first to raise the issue of

43

immunity:

Q. Okay. Did you ever tell Gail Mordenti that she

was going to get immunity in this case?

A. No.

Q. Do you have the authority to tell an arrested

individual that they would be getting immunity?

A. No, I don’t.

(PC-T. 782). Det. Baker further testified:

Q. Okay. And I just wanted to point out in this

report [Def Exh. 6], there’s an indication that Ms.

Mordenti advised that she knew more about the

homicide than she originally told us, that she would

cooperate if given immunity for prosecution. Do you

recall that happening?

A. Asking for immunity?

Q. Or indicating that she would cooperate if she

got immunity.

Q. Okay. And that was in the vehicle on the way to

the state attorney’s office?

A. That’s correct.

Q. So she communicated that she would like

immunity?

A. Yes.

(PC-T. 788).

Gail however, testified at trial that she did not

approach law enforcement about immunity, but that "they

approached [her]" (R. 701), and testified at the November 27,

2001 evidentiary hearing that Det. Baker was wrong when he

stated to the contrary (PC-T. 1083). In closing argument at

trial, Ms. Cox used this to bolster Gail’s credibility with

misled, but so was this Court in the direct appeal. This

Court clearly understood that Gail received complete immunity.

Mordenti v. State, 630 So. 2d at 1083.

statement given pursuant to a subpoena and complete immunity

matters greatly. A witness’s motives are cast in different

light depending upon the type of immunity given.

44

the jury (R. 1193). Ms. Cox’s argument was false as the

police report in her possession revealed.

But there was more that Ms. Cox knew was false and that

she failed to correct. Gail testified at trial, "as long as I

told the truth, that I had total immunity" (R. 661). Ms. Cox

Gail had no immunity "other than what immunity being under

subpoena covers." (PC-T. 69). At trial, Ms. Cox never

corrected Gail’s trial testimony which was not accurate.

Instead she reaped the benefit from the false testimony. The

immunity explained why the State had not charged Gail with the

murder. In order to get evidence against the others in the

conspiracy, it had to give Gail a deal. Moreover, Gail’s deal

was blown if she lied. So the State was keeping track, and

would go after her if she said something untrue. Since the

State was honoring the deal, the jury was led to believe that

the State had determined that Gail’s testimony was the truth,

that Gail did not initiate the immunity discussion, the jury

45

was given a completely "false impression" of Gail’s immunity.

Alcorta v. Texas; Garcia v. State.

The circuit court did not specifically address this false

argument in its order denying relief. Moreover, the

materiality is apparent from an examination of this Court’s

opinion on direct appeal. Mordenti v. State, 630 So.2d at

1083 ("Gail Mordenti was offered complete immunity"). The

jury, the defense, and this Court were all deceived by the

State’s failure to reveal the true nature of the immunity

bestowed on Gail. This was constitutional error.

Ms. Cox argued in her closing over Mr. Atti’s objection

that Larry Royston’s cell phone records showing phone calls to

T & D Auto Repair in the month of May were relevant and

corroborative of Gail’s testimony that Mr. Royston kept

calling her, "you’ll see that Larry Royston places numerous

telephone calls to T & D. In May - - Gail Mordenti was

working there in May." (R. 1253-54). Ms. Cox’s argument was

Notes in Ms. Cox’s handwriting reveal that Ms. Cox knew that

there was a problem with her argument on this point:

[with arrow drawn to]:

D-Ex. 17, at 2, upper right hand corner. Ms. Cox’s argument

was false, and she knew it was false.

46

The lower court denied this portion of the claim stating:

that the statement of when Gail Mordenti started

working at T&D was material. Additionally,

Defendant has failed to demonstrate that the State

knew the statement was false when it was said. As

such, Defendant is not entitled to relief upon this

allegation.

(PC-R. 1412).

Contrary to the lower court’s finding, Mr. Mordenti

demonstrated through Gail’s own testimony that the argument

was false. Mr. Mordenti also showed that the State knew that

the argument was false. Ms. Cox’s own notes, which were

entered into evidence, clearly demonstrate Ms. Cox’s keen

awareness of the problem. The state noted: "when started w.

T&D" then drew an arrow to "look @ statement to LEO p. 8".

When at trial Ms. Cox argued it was May, Mr. Atti

objected and correctly pointed out that it was June. However,

Ms. Cox wanted the conviction and needed to argue that the

phone records corroborated Gail’s claim that Mr. Royston was

after her to get the job done, even though she did not want to

do it. There was no corroboration for this story. So, Ms.

Cox insisted on falsely arguing that Gail’s employment started

in May, so that she could argue the meaningless phone records

as corroboration.

The circuit court’s analysis of this point overlooked

Gail’s testimony, Ms. Cox’s testimony, D-Ex. 17, and the trial

record.

failing to know how to get a prior inconsistent sworn

statement into evidence is also a claim. However, Ms. Cox

clearly took advantage of John Atti’s inexperience in order to

keep important and admissible impeachment evidence of the

State’s star witness from the jury.

47

At trial Mr. Mordenti’s trial counsel, John Atti,

attempted to rely on Gail’s inconsistent prior sworn statement

regarding when she received the gun and accompanying bullets

he was thwarted when Ms. Cox successfully precluded the jury

from knowing the truth – that Gail had given a prior

inconsistent sworn statement. Ms. Cox’s handwritten notes

clearly show that she was aware of Gail’s prior inconsistent

sworn statement (D-Ex. 17). At the top of the second page of

the exhibit, the handwritten note states, "got gun back accord

to stmt in Jan Feb, March 89." Ms. Cox deliberately kept from

the jury proof that Gail had told an untruth (since both

statements can’t possibly be true, one of them was false). In

fact, Mr. Atti stated to the judge at trial that this

inconsistency was "crucial to the case, and I believe that

it’s impeachment, direct impeachment on the State’s most

important witness." (R. 1227). Yet, the trial judge at Ms.

Cox’s urging ruled against Mr. Atti and refused to let him get

The lower court stated:

Here, Defendant has failed to prove that this was a

"material" fact as it is not alleged that "the gun"

was the murder weapon. In the State’s closing

accompanying bullets were in Gail’s possession at the time of

the murder, the meaning of the FBI’s findings would be turned

inside out. That was why he described Ms. Cox’s successful

effort to mislead the jury and the trial judge on this point

"absolutely pivotal" (PC-T. 563-64).

48

argument, it argues that this gun was not the murder

weapon. This may have provided impeachable material

for the defense, but it would not rise to the level

demonstrate that such a fact was material.

(PC-R. 1416). The lower court completely missed that the

State argued that the bullets accompanying the gun were a

compositional match to the fatal bullet and therefore the

fatal bullet had been in the box of bullets provided by Mr.

Mordenti to Gail (according to Gail) (R. 1211). The State was

That was why Mr. Atti called his failure to get the prior

inconsistent statement before the jury "absolutely pivotal."

Certainly, the State intentionally obfuscated the truth and

violated due process. Garcia v. State.

Ms. Cox also deliberately presented misleading evidence

designed to assassinate Mr. Mordenti’s character. Ms. Cox

elicited from Gail testimony that Mr. Mordenti "was involved

in some kind of investigation of bank robbery, and that was -

- so he didn’t want any conversations over the phone because

he didn’t know if anyone was listening in because of the bank

robbery" (R. 658). The implication was that Mr. Mordenti was

corroboration to Gail’s claim that Mr. Mordenti had "‘throw

away pieces’ and that she knew he ‘was dealing with some

people that were shady.’" Mordenti v. State, 630 So.2d at

1084.

questioning of Mr. Atti that any prejudice was cured by the

presentation at trial of Agent Carmody’s testimony. ASA

Vollrath asked, "So Mr. Carmody, the agent for the FBI, came

in, gave full testimony about how - - what a wonderful person

Mr. Mordenti was, to have given this situation - - was allowed

to catch the two bank robbery suspects" (PC-T. 622-23).

Contrary to this assertion, Agent Carmody was in fact

648).

49

Actually, the truth as explained by FBI Agent Carmody was

that Mr. Mordenti was the good citizen that helped the FBI

locate the bank robber, Horace Barnes and girlfriend, Tracey

Leslie. (PC-T. 280-88). Ms. Cox had interviewed Agent Carmody

and knew that Mr. Mordenti had assisted the FBI in arresting

the bank robber, Mr. Barnes (PC-T. 289, D-Ex. 21). Ms. Cox’s

handwritten notes of her March 5, 1991, interview of Agent

Carmody demonstrate that he advised her:

Ms. Cox knowingly presented misleading evidence

suggesting that Michael Mordenti was a bank robber afraid of

being caught. The lower court stated that Gail’s testimony

that Mr. Mordenti was involved in a bank robbery was not false

it concluded that Mr. Barnes was a cellmate of Mr. Mordenti.

50

or misleading because Mr. Mordenti was involved, albeit in the

investigation of it (PC-R. 1416). However, the testimony

deliberately created a false impression. The circumstances

here are indistinguishable from those found by the Supreme

Court in Alcorta v. Texas. The circuit court’s analysis

overlooked the case law. The question is not one of technical

falsehood, but instead whether the evidence was deliberately

misleading and designed to create a false impression.

Certainly, that was the case at Mr. Mordenti’s trial. Ms.

To further prejudice Mr. Mordenti, Ms. Cox deliberately

presented the testimony of Horace Barnes, the person that

Agent Carmody arrested because of the information provided by

Michael Mordenti. Ms. Cox elicited testimony from Mr. Barnes

that Mr. Mordenti "let me know that he was in the mob" (R.

747). In response to an objection, Ms. Cox explained that Mr.

Barnes would further testify that Mr. Mordenti told Mr. Barnes

that "he was a hit man" (R. 748). The trial judge ruled that

the mob comment was inadmissible, but the "hit man" comment

could be presented (R. 749). Thereafter, Mr. Barnes also

testified that he saw Mr. Mordenti illegally sell a gun to a

friend of Mr. Barnes.

Ms. Cox did not advise the jury or the judge that Mr.

affirming on direct appeal, the Court understood from the

record that Mr. Barnes was "a cellmate of Mordenti’s."

Mordenti v. State, 630 So.2d at 1084. The fact that Mr.

Barnes was not "a cellmate of Mordenti’s," but in fact a bank

robber who was caught by the FBI because of information

provided by Mr. Mordenti, casts quite a different light on Mr.

Barnes’ reasons for testifying. See Davis v. Alaska, 415 U.S.

308 (1974).

he failed to combat Ms. Cox’s improper actions. Defense

counsel’s failings aggravated the prejudice and underscore

that Mr. Mordenti did not receive an adequate adversarial

testing.

51

Barnes was a bank robber who had been caught because Mr.

Mordenti assisted the FBI in locating him. Ms. Cox did not

advise the jury that Mr. Mordenti had testified before a grand

jury and identified Mr. Barnes. Ms. Cox knew that Mr. Barnes

had a grudge against Mr. Mordenti and wanted to get him. A

March 7, 1990, police report was in her possession that

indicated that "[i]t was apparent Barnes wanted a piece of

Mordenti because he burned him and his girlfriend" (D-Ex. 10

Neither the jury (nor this Court when it affirmed the

convictions) knew that Mr. Barnes had a grudge against Mr.

Mordenti and that it was apparent to law enforcement that

"Barnes wanted a piece of Mordenti" (D-Ex. 10). Ms. Cox

knowingly presented misleading and inaccurate evidence. She

improperly exploited Mr. Barnes’ testimony to bolster Gail’s

The circuit court ruled that it need not address this

52

portion of the claim, "as the Florida Supreme Court found that

Barnes’ testimony was inconsequential." Specifically, the

circuit court relied upon this Court’s comment regarding the

introduction of Mr. Barnes’ "he was in the mob" statement.

This Court found the issue had not been preserved and then

alternatively stated, "the elimination of the cellmate’s

testimony would not have changed the outcome of this

proceeding and otherwise constituted harmless error."

Mordenti v. State, 630 So.2d at 1085. Given that this Court

was only addressing the "he was in the mob" statement and

given that this Court had been completely misled as to what

Mr. Barnes’ connection to Mr. Mordenti was all about, the

circuit court’s reliance of this Court’s opinion was

misplaced. The State violated due process. It deliberately

obfuscated the truth. Garcia v. State.

Notes in Ms. Cox’s handwriting revealed that Ms. Cox knew

that there was a problem prior to trial with an aspect Gail’s

testimony. These notes stated:

(D-Ex. 14, at 2, upper right hand corner, line 3)

This note related to Gail’s testimony that Mr. Mordenti

had told her that Thelma "had on a lot of rings and jewelry

and that he wished he could have taken them." When this note

is compared to a photograph of Ms. Royston at the crime scene

53

(D-Ex. 57), it is obvious th