THIRTEENTH JUDICIAL CIRCUIT, IN

AND FOR HILLSBOROUGH COUNTY, FLORIDA

CASE NO. CF90-3870

STATE OF FLORIDA,

Plaintiff,

v.

MICHAEL MORDENTI,

Defendant

___________________________/

DEFENDANT'S CLOSING ARGUMENT

This Court held an evidentiary hearing on Mr. Mordenti's Post Conviction Motion on September 10-11, November 5-7, and November 27, 2001. Pursuant to the Court's order at the conclusion of the evidentiary hearing, Defendant, Michael Mordenti, through counsel, herein submits his closing argument. Based upon the record, the law, and the facts presented at the evidentiary hearing, Mr. Mordenti is entitled to Rule 3.850 relief.

Citations will be designated as follows:

Transcript of Mr. Mordenti's 1991 trial: (R. followed by the page number)

Evidentiary Hearing Testimony: (month and date of testimony followed by the appropriate page number)

Evidentiary Hearing Exhibits: (State Exh. or Def. Exh. followed by the exhibit number).

A. INTRODUCTION

At the heart of Mr. Mordenti's motion to vacate 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.

The Florida Supreme 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). Thus, 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 immunity." (R. 661). Gail elaborated in cross-examination at trial that "as long as I told the truth, the whole truth, that I had immunity." (R. 703)(emphasis added). Gail Mordenti Milligan was given immunity to identify the person that she hired to commit the murder. Michael Mordenti maintains that Gail Mordenti Milligan took the immunity and identified the wrong man in order to protect the real killer.

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 responded, "that's correct." (R. 701).

Yet at the evidentiary hearing when Detective Baker testified in November of 2001, he indicated that contrary to Gail's testimony, it was Gail who first brought up immunity. ( 11/7 at 532; 537; 543; Def Exh. 6) "Ms. Mordenti advised that she knew more about the homicide than she originally told us, that she would cooperate if given immunity for prosecution." When she testified on November 27^th, Gail said that Detective Baker's testimony was not true. (11/27 at 222-223). Obviously either Detective Baker or Gail has failed to tell the truth, the whole truth.

Contrary to Gail's trial testimony, Lee Atkinson, the 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 ( 11/5 at 15). Thus, Gail's trial testimony on this point was not the truth, "the whole truth" as she herself said she was obligated to provide in order to obtain "total immunity."

At trial, Gail 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 knew anyone who could kill his wife (R. 611).

When Gail testified at the evidentiary hearing on November 27^th, she acknowledged that her date-book (Def Exh. 11) established that the luncheon with Larry Royston was not in February or March of 1989, but was on April 11, 1989 (11/27 at 144-145; 211-212). Gail testified at the evidentiary hearing when confronted with her trial testimony about the lunch with Larry: "If my book says that it was April 11^th, then I was wrong." (11/27 at 228). The luncheon was at Gail's invitation (11/27 at 228). Gail also acknowledged that on April 11^th, she had the first conversation she had with Larry Royston about his desire to find someone to kill Thelma. Accordingly, prior to April 11, 1989, she had undertaken no actions in search of a killer. Thus, she admitted her trial testimony was not the truth, the whole truth.

At trial, Gail testified that prior to contacting Michael Mordenti about killing Thelma Royston, she had unsuccessfully sought to recruit three other individuals to do the murder (R. 672-73). After some time had passed while she was unsuccessful in recruiting a killer, Gail testified that she turned to Michael Mordenti within a couple of weeks of the luncheon with Larry "which took place sometime, I think, in February, or the beginning of March." (R. 675). According to Gail's trial testimony, Michael Mordenti wanted to scope out the Royston place in the daytime (R. 617). Gail testified that later Michael Mordenti wanted to take a second drive out to the Royston's place, this time at night. According to Gail's trial testimony, Michael Mordenti went to Gail's house in the middle of the night (R.620). Gail and Michael Mordenti then went and checked into a motel near the Royston place. In regard to this second trip (maybe a month after the first trip R. 682) that she and Michael Mordenti made to the Royston place, Gail testified that it occurred before Michael Milligan moved in to her house "either the end of March or beginning of April." (R. 677). Thus, the date-book reveals that Gail's trial testimony was completely wrong about the timing sequence and provides a basis for arguing that Michael Milligan was the more likely accomplice on a late night trip in late April to scope out the Royston place.

Since according to Gail Mordenti's evidentiary hearing testimony however, the luncheon was not until April 11^th ( 11/27 at 144-145 ), Gail's trial testimony could not possibly be the truth, the whole truth. If the luncheon happened on April 11^th, Michael Milligan had already moved in with her and Michael Mordenti did not go into her house in the middle of the night to rouse her to go to the Royston place. Since Gail was facing a mountain of debt and lawsuits, it is certainly plausible that she turned to the man with whom she was living and going to marry, Michael Milligan.

At trial, Gail testified that Michael Mordenti had given her a gun. "Michael gave it back to me after the murder, and I had it at the house." (R. 662). Gail gave the gun to the police in March of 1990, and evidence was introduced at trial regarding the FBI's metallurgical examination of the bullets that were in the gun. On cross-examination at trial, Gail testified that Michael Mordenti gave her the gun 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 on March 8, 1990, in her sworn statement, Gail indicated that she received the gun "January, February, March [ ] 89." Gail had explained on March 8, 1990, "yeah, it was kind of a long time ago." (Def. Exh 37 at page 19). Thus, this sworn 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, Assistant State Attorney, Karen Cox, successfully argued to the trial judge that defense counsel could not mention that the prior inconsistent sworn testimony existed (R. 1224-34).

Yet at the evidentiary hearing November 27, 2001, Gail remembered the March 8, 1990, sworn statement and was uncertain whether it or her contradictory trial testimony was true (11/27 at 183-184). She indicated that she had not "deliberately lie[d] at trial regarding when [she] got the gun" (11/27 at 184). Obviously, her trial testimony was not the truth, the whole truth.

According to John Atti, Michael Mordenti's trial attorney, this discrepancy was "absolutely pivotal" (11/6 at 320). Yet, 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.

Absolutely no physical evidence connected Michael 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 to this Court shows that Mr. Mordenti's jury did not have all of the information because Gail's testimony was not the truth, the whole truth. 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 that his conviction and death sentence represent a manifest miscarriage of justice and cannot be allowed to stand.

B. CLAIMS FOR RELIEF

Although the facts underlying Mr. Mordenti's claims are raised under alternative legal theories -- i.e., newly discovered evidence, Brady, Giglio, ineffective assistance of counsel -- the cumulative effect of those facts in light of the record as a whole must be nevertheless be assessed. Not only must the Court consider Mr. Mordenti's claims in light of the record as a whole, but also the Court should consider the cumulative effect of the evidence which the jury never heard. As the Florida Supreme Court held in State v. Gunsby, 670 So.2d 920 (Fla. 1996), a combination of Brady violations, ineffective assistance of counsel and newly discovered evidence may cumulatively establish prejudice sufficient to require granting relief. There, the Court ordered a new trial based upon the combined effect of Brady violations, newly discovered evidence, and ineffective assistance of counsel. Gunsby, 670 So.2d at 924.

In the Brady context, the United States Supreme Court and the Florida Supreme Court have explained that the materiality of evidence not presented to the jury must be considered "collectively, not item-by-item." Kyles v. Whitley, 514 U.S. 419, 436 (1995); Young v. State, 739 So.2d 553, 559 (Fla. 1999). Thus, the analysis is whether "the favorable evidence could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict." Id. at 1566 (footnote omitted).

In the ineffective assistance of counsel context, the United States Supreme Court has explained that the same totality of the circumstances approach applies:

[A] court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury. Some of the factual findings will have been unaffected by the errors, and factual findings that were affected will have been affected in different ways. Some errors will have had a pervasive effect on the inferences to be drawn from the evidence, altering the entire evidentiary picture, and some will have had an isolated, trivial effect. Moreover, a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support.

Strickland v. Washington, 466 U.S. 668, 695-96 (1984)(emphasis added).

The Supreme Court had previously described the totality of the circumstances analysis as follows:

[I]f the omitted evidence creates a reasonable doubt that did not otherwise exist, constitutional error has been committed. This means that the omission must be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt.

United States v. Agurs, 427 U.S. 97, 112-13 (1976)(emphasis added)(footnote omitted).

In the newly discovered evidence context, the Florida Supreme Court has held that the analysis requires a judge "to evaluate the weight of both the newly discovered evidence and the evidence which was introduced at the trial." Jones v. State, 591 So. 2d 911, 916 (Fla. 1991). In Lightbourne v. State, 742 So. 238 (Fla. 1999), the Florida Supreme Court explained the analysis to be used when evaluating a successive motion for post-conviction relief:

In this case the trial court concluded that Carson's recanted testimony would not probably produce a different result on retrial. In making this determination, the trial court did not consider Emanuel's testimony, which it had concluded was procedurally barred, and did not consider Carnegia's testimony from a prior proceeding. The trial court cannot consider each piece of evidence in a vacuum, but must look at the total picture of all the evidence when making its decision.

When rendering the order on review, the trial court did not have the benefit of our recent decision in Jones v. State, 709 So. 2d 512, 521-22 (Fla.) cert. denied, 523 U.S. 1040 (1998), where we explained that when a prior evidentiary hearing has been conducted, "the trial court is required to 'consider all newly discovered evidence which would be admissible' at trial and then evaluate the 'weight of both the newly discovered evidence and the evidence which was introduced at the trial'" in determining whether the evidence would probably produce a different result on retrial. This cumulative analysis must be conducted so that the trial court has a "total picture" of the case. Such an analysis is similar to the cumulative analysis that must be conducted when considering the materiality prong of a Brady claim. See Kyles v. Whitley, 514 U.S. 419, 436 (1995).

Lightbourne, 742 So. 2d at 247-248(empahsis added)(citations omitted).

When these principles are applied to Mr. Mordenti's claims, his entitlement to relief is clear.

1. Giglio Claim.

In Giglio v. United States, 405 U.S. 150, 153 (1972), the United States 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 United States 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 (1935). The Florida Supreme Court has stated "Truth is critical in the operation of our judicial system. . . ." The Florida Bar v. Feinberg, 760 So.2d 933, 939 (Fla. 2000); The Florida Bar v. Cox, ___ So.2d ___, Case No. SC96217 (Fla. May 17, 2001). If the prosecutor intentionally or knowing 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). Where, as here, the State uses false or misleading argument to deliberately deceive the jury, due process is violated.

In cases "involving knowing use of false evidence the 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 guilt-innocence 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 secure a conviction, a reversal is required unless the error is proven harmless beyond a reasonable doubt. Bagley, 473 U.S. at 679 n.9. See United States v. Alzate, 47 F.3d 1103, 1110 (11^th Cir. 1995).

At the evidentiary hearing it was established that the trial prosecutor, Karen Cox, knowingly and repeatedly presented false evidence and argument to Mr. Mordenti's jury. The instances are too numerous to fully catalogue in this closing memorandum. However some examples include the following:

a . State's False Argument

i. Regarding Mr. Mordenti's knowledge of Larry Royston

During Karen Cox' closing argument at the guilt phase, 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, Def. Exh 5 establishes that this argument was false. According to Def. Exh. 5, Michael Mordenti was interviewed on February 20, 1990, and he "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." (Emphasis added).

Karen 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 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)(emphasis added).

ii. Regarding Gail's Immunity

Detective Baker has testified that Gail immediately inquired if she could get immunity. This testimony is corroborated by Def Exh 6 which was in Ms. Cox's possession (9/10 at 25). Yet, Karen 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 they are not being calculating; that they are not thinking of their own best interest, because she didn't - - she had no guarantees at that point of anything." (R. 1193).

According to Detective Baker's testimony in November of 2001, that was a false argument to the jury. Detective Baker testified at the evidentiary hearing that law enforcement was not the first to raise the issue of 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.

(11/7 at 537). Detective 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.

A. I remember her asking that question, yes.

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.

(11/7 at 543.)(emphasis added).

Gail however, testified at trial that she did not approach law enforcement about immunity, "they approached [her]" (R. 701), and testified at the November 27, 2001 evidentiary hearing that Detective Baker was wrong when he stated to the contrary ( 11/27 at 215). In closing argument at trial, Ms. Cox used this issue to bolster Gail's credibility with the jury (R. 1193). Ms. Cox's argument was false as the police report in her possession revealed.

Gail also testified at trial, "as long as I told the truth, that I had total immunity." (R. 661). Karen Cox new that Gail did not have total immunity. As she testified to at the evidentiary hearing, Gail had "use immunity." (9/10 at 26). Gail had no immunity "other than what immunity being under subpoena covers." (9/10 at 69). At trial, Karen Cox never corrected Gail's trial testimony which was not accurate.

iii. Gail's Employment at T & D

Karen Cox argued over Mr. Atti's objection that Larry Royston's cell phone records showing phone calls to Glen Donnell's place of business in the month of May were relevant evidence corroborating Gail's testimony that Larry 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). Karen Cox's argument was false. At the evidentiary hearing, Gail testified that she began employment at Glen Donnell's business venture, T & D, on June 1, 1989 (11/27 at 162). Notes in Karen Cox's handwriting reveal that Ms. Cox knew that there was a problem with her argument on this point:

When started w. T& D

[with arrow drawn to]:

look @ stmt to LEO p. 8

Def Exh 17, at 2, upper right hand corner. Ms. Cox's argument was false, and she knew it was false.

b. Knowing Presentation of False Evidence

i. When Gail Received the Gun

When Mr. Mordenti's trial counsel, John Atti, attempted to rely on Gail's inconsistent prior sworn statement regarding when she received the gun from Michael Mordenti ( before or after the murder), Karen Cox successfully precluded the jury from knowing the truth – that Gail had given a prior inconsistent sworn statement. Def. Exh. 17 clearly established that Karen Cox was aware of Gail's prior inconsistent sworn statement. At the top of the second page of the exhibit a note in Ms. Cox's handwriting states, "got gun back accord to stmt in Jan Feb, March 89." So. 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 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).

ii. Mr. Mordenti's "Involvement" with Bank Robbers

Ms. Cox also deliberately presented misleading evidence designed to assassinate Mr. Mordenti's character. Ms. Cox 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). The implication was that Michael Mordenti was a bank robber who was afraid of getting caught.

Actually, the truth as explained by Barry Carmody, an FBI agent, was that Michael Mordenti was the good citizen that helped the FBI locate the bank robber, Horace Barnes. (11/5 at 45-53). Karen Cox had interviewed Barry Carmody and knew that Michael Mordenti had assisted the FBI in arresting the bank robber, Horace Barnes, as Def. Exh 21, establishes (9/10 at 54). Def. Exh 21 is Karen Cox's handwritten notes of her March 5, 1991, interview of Barry Carmody in which he advised her :

Mordenti I D ed bank surveillance photos Horace Barnes. Mordenti had significant information on whereabouts of Barnes. Carmody realized that Mordenti was potentially a significant wit. for gov.

(9/10, 2001 at 54).

Karen Cox knowingly presented misleading evidence suggesting that Michael Mordenti was a bank robber afraid of being caught.

iii. Horace Barnes & Tracey Leslie

To further prejudice Michael Mordenti, Karen Cox presented the testimony of Horace Barnes, the very person that Barry Carmody arrested because of the information provided by Michael Mordenti. Karen Cox elicited testimony from Horace that Michael Mordenti "let me know that he was in the mob." (R. 747). In response to an objection, Ms. Cox explained that Horace Barnes would further testify that Michael 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). Horace Barnes further testified that he saw Michael Mordenti sell a friend of Horace Barnes a gun. Karen Cox did not advise the jury that Horace Barnes was a bank robber who had been caught because Michael Mordenti assisted the FBI in locating him. Karen Cox did not advise the jury that Michael Mordenti had testified before a grand jury and identified Horace Barnes. Karen Cox knew that Horace Barnes had a grudge against Michael Mordenti and wanted to get him. Def. Exh 10 indicates that Horace Barnes was interviewed on March 7, 1990, before Gail first made Michael Mordenti a suspect in her March 8, 1990, statement. Ms. Cox had possession of this police report (9/10 at 25). On March 7, 1990, Detective Baker interviewed Horace Barnes because "it was known Mordenti had given information to the FBI, which led to the arrest of Barnes and his girlfriend Tracy Leslie." Of the interview, Baker reported that "It was apparent Barnes wanted a piece of Mordenti because he burned him and his girlfriend." Def. Exh. 10 at 3. The jury was completely misled regarding Horace Barnes. Neither the jury nor the Florida Supreme Court knew that Horace Barnes had a grudge against Mordenti and that it was apparent to law enforcement that "Barnes wanted a piece of Mordenti." Karen Cox knowingly presented misleading and inaccurate evidence. She improperly exploited Horace Barnes' testimony to bolster Gail Mordenti Milligan's effort to frame Michael Mordenti for a murder he did not commit.

2. Brady claim.

In order to insure that a constitutional adversarial testing, and hence a fair trial, occur, certain obligations are imposed upon the prosecuting attorney. The prosecutor is required to disclose to the defense evidence "that is both favorable to the accused and 'material either to guilt or punishment'". United States v. Bagley, 473 U.S. 667, 674 (1985), quoting Brady v. Maryland, 373 U.S. 83, 87 (1963). In Strickler v. Greene, 119 S.Ct. 1936, 1948 (1999), the Supreme Court reiterated the "special role played by the American prosecutor" as one "whose interest . . . in a criminal prosecution is not that it shall win a case, but that justice shall be done." See Hoffman v. State, — So.2d — (Fla. July 5, 2001), 2001 WL 747399 (Fla.); State v. Hugins, 788 So.2d 238 (Fla. 2001); Florida Bar v. Cox, 794 So.2d 1278 (Fla. 2001); Rogers v. State, 782 So.2d 373 (Fla. 2001). The State's duty to disclose exculpatory evidence is applicable even though there has been no request by the defendant. Strickler at 280. The State also has a duty to learn of any favorable evidence known to individuals acting on the government's behalf. Id. at 281. Exculpatory and material evidence is evidence of a favorable character for the defense which creates a reasonable probability that the outcome of the guilt and/or capital sentencing trial would have been different. Garcia v. State, 622 So. 2d 1325, 1330-31 (Fla. 1993). This standard is met and reversal is required once the reviewing court concludes that there exists a "reasonable probability that had the [unpresented] evidence been disclosed to the defense, the result of the proceeding would have been different." Bagley, 473 U.S. at 680. "The question is not whether the defendant would 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." Kyles v. Whitley, 514 U.S. at 434; Strickler v. Greene, 119 S,Ct. at 1952.

The Florida Supreme Court has indicated that the question is whether the State possessed exculpatory "information" that it did not reveal to the defendant. Young v. State, 739 So.2d at 553. If it did and it did not disclose this information, a new trial is warranted where confidence is undermined in the outcome of the trial. In making this determination "courts should consider not only how the State's suppression of favorable information deprived the defendant of direct relevant evidence but also how it handicapped the defendant's ability to investigate or present other aspects of the case." Rogers v. State, 782 So.2d at 385. This includes impeachment presentable through cross-examination challenging the "thoroughness and even good faith of the [police] investigation." Kyles v. Whitley, 514 U.S. at 446. Information regarding "coaching" of State witnesses is Brady material because it gives the defense a tool to argue against the witness' credibility. Rogers v. State, 782 So.2d at 384.

At the evidentiary hearing it was established that the State failed to disclose exculpatory evidence to the defense. The instances are too numerous to fully catalogue in this closing memorandum. However some examples include the following:

a . Gail Mordenti Milligan's Date Book.

According to Gail Mordenti Milligan, she provided Karen Cox with her date-book before the trial (11/27 at 203). Karen Cox confirmed that she had possession of the date-book (9/10 at 34). So, the State was in possession of evidence that Gail Mordenti Milligan has acknowledged established that during her trial testimony she was "wrong"as to the correct date of her luncheon with Larry Royston (11/27 at 144, 228). John Atti testified he did not have access to the date book. It was never provided to him (11/6 at 290).

i. Gail's date book entry for April 11, 1989

On April 11, 1989, Gail wrote:

Larry Royston Here Lunch

Def. Exh 11. When Gail testified at the evidentiary hearing, she acknowledged that her date- book established that the luncheon with Larry Royston was on April 11, 1989 (11/27 at 144-145; 211-212). Gail testified at the evidentiary hearing when confronted with her trial testimony about the lunch with Larry: "If my book says that it was April 11^th, then I was wrong." (11/27 at 228) Gail also acknowledged that on April 11^th, she had the first conversation she had with Larry Royston about his desire to find someone to kill Thelma. Accordingly, prior to April 11, 1989, she had undertaken no actions in search of a killer.

Mr. Atti testified that he attempted to come up with a time line regarding the events Gail stated that occurred (11/6 at 290). Had the date-book been disclosed, he would have used evidence that would have pinned down specific dates of events, he would have looked at the date book for inconsistencies in Gail's versions of events that would have been valuable information to have when she testified in order to examine her with (11/6 at 291-92). It would have established that all of her trial testimony contained false information.

In fact, knowing that the luncheon occurred on April 11^th at Gail Mordenti Milligan's invitation would have revealed a wealth of impeaching evidence besides the fact that all of her testimony regarding the dates of events was false. On April 12, 1989, the day after Larry Royston came to a luncheon at her house at her invitation, Gail gave a statement to law enforcement regarding an investigation into an allegation that she had stolen $200,000 (Def. Exh 58; 11/27 at 178, 198). According to her testimony at the evidentiary hearing, she had been notified prior to April 12^th that the police wanted to talk to her about the missing $200,000 (11/27 at 201). Because defense counsel was not provided access to the date-book (11/6 at 290-91), he did not know to inquire about the proximity of the luncheon to the police questioning of Gail Mordenti Milligan regarding the missing money. Between it and the other documents disclosing Gail's desperate financial straits which bordered on criminal charges, Gail's depiction of herself at trial would have been completely undercut (Def. Exhs. 28, 52, 53, 54, 55, 56, 58). She needed money, and she needed it fast on April 11^th.

The April 11^th entry in the date-book also provides important impeachment of Gail's story because of the statement to law enforcement she made the next day on April 12, 1989. The day after Larry Royston came to a luncheon at her house at her invitation, she gave a statement to law enforcement regarding a criminal investigation into an allegation that she had stolen $200,000 (Def. Exh 58; 11/27 at 178, 198). In this statement, Gail Mordenti Milligan blamed the missing money on Jack Gartley whom she described as "an albatross around [her] neck." (11/27 at 199). Yet according to Gail Mordenti Milligan's story, after her April 11^th luncheon at which she was "shocked" by Larry Royston's request for help in killing his wife, the first person she turned to was Jack Gartley, "the person who [was] the albatross around [her] neck, the person who [was] destroying [her] reputation," at least according to her statement to police on April 12, 1989 (11/27 at 212).

ii. Gail's date book entry for June 7, 1989

Gail's entry for June 7, 1989 includes:

Mr. Atti testified that any note that Gail would have taken contemporaneously with the day of the murder would have been very important to him for investigatory purposes (11/6 at 290). Mr. Atti also indicated that he thought Gail in her testimony may have substituted Michael Mordenti's name for the name of the real killer, possibly Michael Milligan (11/6 at 331). Yet, the defense was not provided access to Gail Mordenti Milligan's date-book or the information contained therein.

b. Interview of Michael Milligan.

Karen Cox identified Def. Exh. 14 as her handwritten notes documenting a 2/10/91 interview of Michael Milligan.. 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." (9/10 at 41). The notes reveal that Milligan worked for Michael Flynn of Flynn Motors as a transportation representative since 1985, that he met Gail in 1988 and starting seeing her in March 1989. The notes further contained the following:

6/89- mordenti called him & had car picked up w was used in bank robbery from New Mexico

(Def. Exh 14, at 1, lines 10-11). This note reveals that Michael Milligan told Karen Cox that he went to New Mexico in June of 1989, the month of Thelma Royston's murder. The note also stated:

Michael know larrys name b/c she told him it

(Def Ex. 14, at 2, line 2)

This undisclosed statement by someone the defense consider a suspect was very important information that the State had a duty to disclose and did not (11/27 at 50). Michael Milligan's statement is highly significant. At trial, Gail Mordenti Milligan indicated that the car used in the murder was left on the Mexican border (R. 638). In his undisclosed statement to Karen Cox, Michael Milligan placed himself in New Mexico, relatively near the Mexico border, at the time that Gail says the car was being left at the Mexican border. It is also puts a different spin on the June 7^th entries in Gail's date-book.

As for Michael Milligan's claim that Michael Mordenti had sent him to New Mexico to pick up the car used in the bank robbery, this is clearly an attempt to falsely create an innocent explanation for his whereabouts in the month of June, 1989. The bank robbery Milligan refers to as happening in June of 1989 actually did not happen until January of 1990. Thus, Milligan could not have been transporting the car used in the robbery in June of 1989. A potent argument exists that Gail substituted Michael Mordenti (her ex husband) for Michael Milligan (her then and now present husband) with the half truth – half lie as to a car being sent to Mexico. Thus, the argument follows that it was Milligan who was involved in Ms. Royston's murder and Gail was protecting him by assigning responsibility to Mr. Mordenti. A compelling argument could have been made to the jury that Gail had much more interest in protecting the man she was dating and then married rather than the ex-husband whom she had publicly and frequently stated "she wanted to hire somebody to kill him." (11/27 at 13).

c . Interviews of Gail Mordenti Milligan.

Karen Cox identified Def. Exhs. 14 and 15 as her handwritten notes documenting interviews or statements she obtained from Gail Mordenti Milligan. Ms. Cox 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." (9/10 at 41). Notes in Karen Cox's handwriting of a statement by Gail indicated:

Michael made no efforts to sell boat & car

Doesn't think that ever looked for buyers

Larry's boat was a replica of the boat used "on golden pond"

not a high powered speed boat

(Def. Exh. 15, at 1, line 31-34). Notes in Karen Cox's handwriting of another statement by Gail indicated that there was at least a romantic tension between Gail and Larry that was discussed:

He invited her to Tenn.

He said that he did [not] want to date until divorce was over & had time to get head together

(Def Exh. 14, at 2, lines17-20). It also indicated:

Larry had a boat [which] she was trying to sell it for him $20,000

Larry had rebuilt engines

(Def Exh. 14, page 2 lines 31-32).

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 as to the significance of this information because "[i]t would have showed the connection between Gail and Larry Royston " (11/6 at 286). This would have also increased the significance of Ray Cabral's information, that in May of 1989 Michael Mordenti was trying to sell a speed boat used in a movie as "a favor to Gail" (11/5 at 39-40). Had Mr. Atti been given the information contained in Ms. Cox's notes, he would have wanted to present it because it provided an essential and innocent explanation for the thirteen minute cell phone call and would have affected his decision making in terms of calling Ray Cabral (11/6 at 287-89).

Mr. Atti understood that the 13 minute cell phone call that the State asserted occurred between Larry Royston and Mr. Mordenti was business related. When initially interviewed by police, Gail stated that the phone call would have been related to business, possibly antique cars for sale (Def. Exh. 7). Had the notes of Ms. Cox's interview of Gail Mordenti Milligan been disclosed, it would have led to presentation of evidence that the phone call was indeed business related and not connected to Ms. Royston's murder as the state asserted.

d. Undisclosed Statement of Royston's Attorney, John Trevena, a Listed Witness.

Introduced into evidence at the evidentiary hearing were the handwritten notes of Nick Cox of his 3/20/90 interview of John Trevena, the attorney who had been representing Larry Royston up until Royston's suicide (9/10 at 81-82; Def Exh. 23). The interview occurred as a result of an ex parte order signed by Judge Bucklew ordering Mr. Trevena to talk to the prosecutors (9/10 at 57-58; Def. Exh 22). Mr. Atti testified he had not been aware of the ex parte order (11/6 at 292). The order dated March 20, 1991 stated:

The attorney-client privilege 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 client's death.

( Def. Exh. 22)(emphasis added). John Trevena testified that when Karen Cox provided him with a signed copy of the order obtained by the State on an ex parte basis, "he [felt] obligated to reveal privileged information, pursuant to that order" (11/5 at 87).

Mr. Trevena testified that he told the State that Larry Royston's position was "that Gail Mordenti had orchestrated [the murder]." (11/5 at 89). 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" (11/5 at 89). He advised the State that Gail "wanted Mr. Royston freed up so that she could share, I believe, in his assets" (11/5 at 90). 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" (11/5 at 91). "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" (11/5 at 94-95). 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 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.

(11/5 at 92). Mr. Trevena also disclosed to the State that Royston was "scared of Gail Mordenti" (11/5 at 93). 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" (11/5 at 94).

Mr. Trevena testified that he did not provide any of the information that he provided to the State to Mr. Mordenti's counsel, Mr. Atti (11/5 at 96). Mr. Trevena did become aware that "Karen Cox listed [him] as a witness for the State at Mordenti's trial" (11/5 at 97). However, he had "no independent recollection of speaking with [Mr. Atti] about it" (11/5 at 97). If Mr. Atti did contact him about being listed as a State's witness, he would have told him "to get a court order or subpoena" because of Royston's estate being in probate (11/5 at 97).

Mr. Atti testified that he was never aware that John 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. (11/6 at 293). 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. R. Crim. P. In fact, Richard Watts, Mr. Atti's co-counsel, recalled asking "Mr. Trevena on several occasions if he'd be willing to share [Royston's] information with Mr. Mordenti, and he indicated that he couldn't waive privilege" (11/27 at 56). Mr. Atti would have used the notes not only for admissible evidence contained therein, but as an investigative tool to look for leads of where to look for other evidence (11/6 at 294). Further investigation would have been conducted had he been provided the notes (11/6 at 295).

Mr. Atti found this information significant, surprising and shocking (11/6 at 293). The information that Mr. Trevena, a listed witness, provided the State was exculpatory. It rebutted and refuted Gail Mordenti Milligan's testimony. Had this evidence been disclosed to Mr. Mordenti's counsel, it would have provided the defense with information to impeach Gail with and evidence to present.

e. Don't Mention Rings

Notes in Karen Cox's handwriting reveals that Ms. Cox knew that there was a problem prior to trial with Gail's testimony. Def Exh 14 also contains the following notation:

Don't mention [word jewelry is scratched through] rings - only jewelry

(Def Exh 14, at 2, upper right hand corner, line 3)

This note shows that Ms. Cox knew that Gail could not have been telling the truth when she stated 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 one compares this note to Def. Exh. 57, a photograph of Ms. Royston at the crime scene, the photograph shows that Ms. Royston did not have any rings on at the time she was murdered.

Karen Cox's notes reveal that she knew that there was a problem with Gail's statement. In fact, Gail testified at the evidentiary hearing: "Karen told me that there were no rings on her hands" (11/27 at 231). Karen Cox however did not correct this testimony, testimony that Ms. Cox's notes reveal she knew could not be accurate. This was important information that was not disclosed. Had it been disclosed Mr. Atti and Mr. Watts would have used it, as it is one more example of the many untruths Gail told at trial. Certainly it was important information to Ms. Cox, giving her enough concern to document it.

f. Hotel Name

At the evidentiary hearing, Detective Jon King was asked the following by the State:

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?

A. Yes, ma'am.

Q. Okay. Do you recall approximately when that was?

A. I believe it was March or April of 1990.

Q. Okay. Of 1990?

A. I believe it was 1990, yes, ma'am.

Q. Qkay. And was it at that time that you – did you look – what did you do – did you find the – I'm sorry. Strike all of that. Did you ever find the hotel that Ms. Mordenti had –

A. Yes, ma'am.

(11/7 at 548-549) (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 statement on March 8^th of 1990?

A. Correct.

Q. So that was the follow up to that?

A. That's where the information came from, yes, sir.

( 11/7 at 553 -554).

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." (11/27 at 45; Def. Exh 68).

Karen Cox testified at the evidentiary hearing that she did not disclose the name of the motel because she did not learn of the name of the motel 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.

(11/6 at 444). Clearly, Ms. Cox's testimony contradicts Det. King's testimony in this regard. He indicates that the name of the motel was received more than a year in advance of the trial, not a week of so before trial. If Det. King's testimony was not truthful about immediately following up on the information provided by Gail Mordenti Milligan, then the State should have disclosed that for its impeachment value of the reliability of law enformcement's investigation. If Det. King's testimony is truthful, then Ms. Cox's testimony is not, and she intentionally withheld Brady material from Mr. Mordenti's trial counsel.

Furthermore, Detective King's testimony establishes that law enforcement was concerned with Michael Milligan's potential involvement as of March or April 1990.

g. Barry Carmody's Statement to Karen Cox

On March 5, 1991 Karen Cox participated in an interview of FBI agent Barry Carmody. Ms. Cox made "notes of information elicited from Mr. Carmody when [she] was present" (9/10 at 55). These notes were introduced into evidence at the evidentiary hearing. They indicate that Mr. Carmody advised that:

Mordenti IDed bank surveilance [sic] photos as Horace Barnes. Mordenti had significant information on whereabouts of Barnes. Carmody relized [sic] that Mordenti was potentially a significant wit for gov.

He gets arrest warrent [sic] for Barnes & Leslie

(Def. Exh. 21 at 1, lines 19-23). Mr. Carmody also indicated Mr. Mordenti gave other helpful information to the FBI and that Agent Carmody was present when Gail made the phone call at the request of law enforcement to Mr. Mordenti.

At the evidentiary hearing, Mr. Atti testified that he was never provided his exhibit. Had defense counsel been provided this information he could have used it in order to correct the false impression given at trial that Mr. Mordenti was a criminal involved in bank robberies. The evidence is also compelling impeachment evidence that could have been used to confront Horace Barnes with and expose his true motivation for testifying against Mr. Mordenti. Defense counsel could also have presented this evidence in mitigation to show that Mr. Mordenti was actually being a good citizen by helping the FBI capture federal fugitives from justice. Additionally, had defense counsel been given this information he could have presented evidence to put the phone call made by Gail to Mr. Mordenti at the behest of law enforcement in context. Agent Carmody was present when Mr. Mordenti received the call. Instead, the jury was allowed to hear a tape recording of the phone call without any further context given to it.

h. Tracey Leslie

Introduced at the evidentiary hearing as Def. Exh 59 were Nick Cox's hand written notes regarding Tracey Leslie which contained the following:

* GET STATE CHARGES TAKEN CARE OF WHILE TRACEY IS HERE

This note corroborates Horace Barnes' testimony that he had sought and was told he would receive help for his girlfriend, Tracey Leslie.

Introduced as Def. Exh 60 was Tracey Leslie's letter addressed to Nick and Karen Cox dated 4/10/91 thanking them for their help. This also corroborates that Nick Cox, as indicated in Def. Exh. 59, did assist in getting the State charges taken care of, or that at least Tracey Leslie and Horace Barnes believed that assistance had been provided in return for Mr. Barnes' agreement to testify against Mr. Mordenti. Mr. Barnes' understanding that assistance would be provided was undisclosed to Mr. Mordenti's defense attorneys.

Ms. Cox acknowledged that Horace Barnes and Tracey 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.

(11/6 at 441). This corroborates Mr. Barnes' claim that Ms. Cox arranged contact between Tracey Leslie and himself. This was undisclosed consideration.

i. Grand Jury Testimony

Gail Mordenti's grand jury testimony which was never disclosed to the defense contains inconsistent statements, valuable impeachment evidence.

j. FBI Analysis

The State failed to disclose defects in the FBI's hair analysis which was presented to the jury. Similarly, the State failed to disclose defects in the FBI's metallurgical evidence. The FBI's database was woefully inadequate to support the conclusions that were presented to the jury. There was no scientific basis for the conclusions. The evidence was nothing more than junk science.

k. Conclusion

When cumulative consideration is given to all of the State's due process violations, confidence is undermined in the outcome of both the guilt and penalty phases of Mr. Mordenti's trial.

3. Ineffective Assistance of Counsel Claim.

In Strickland v. Washington, the Supreme Court has explained:

. . . a fair trial is one which evidence subject to adversarial testing is presented to an impartial tribunal for resolution of issues defined in advance of the proceeding.

466 U.S. 668, 685 (1984). In order to insure that a constitutionally adequate adversarial testing, and hence a fair trial, occur, certain obligations are imposed upon defense counsel. Defense counsel is obligated "to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process." Strickland, 466 U.S. at 685. Where defense counsel fails in his obligations, a new trial is required if confidence is undermined in the outcome. Smith v. Wainwright, 799 F.2d 1442 (11th Cir. 1986).

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, nor had he received any training in capital defense litigation. Additionally, his felony experience was very limited. He testified that he graduated law school in 1978 and "did not practice law right away." He "reapplied – started taking the Bar in 1985" [and] was admitted in 1987. . ." Mr. Atti received training in various fields, went into private practice one year later handling a "variety of cases"(11/6 at 262). Mr. Att testified that he never handled a murder case and that his case load prior to taking on Mr. Mordenti's case was "[b]attery cases, DUI cases , domestic type cases. I handled a lot of federal cases regarding court appointed that ranged – that were all kinds of variety, including assault with a deadly weapon – just any case that came down, basically" (11/6 at 263). He testified that he practiced primarily in Pinellas county and handled "only a couple of DUI's" in Hillsborough County " and that he was not familiar with the prosecutors in this case (11/6 at 270). Regarding his trial experience, 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.

(11/6 at 263). Mr. Atti had handled one felony trial as a lead attorney prior to Mr. Mordenti's case. (11/6 at 263).

Mr. Atti undertook Mr. Mordenti's case for a fee of $50,000 (11/6 at 265). It was Mr. Atti's expectation that this fee would cover all expenses associated with Mr. Mordenti's case. Mr. Atti explained, "Actually, I didn't at that time expect the case to go to trial." (11/6 at 265). Thus, the fee was the amount that Mr. Atti thought it would take "to get the case prepared." (11/6 at 265). Mr. Atti entered his notice of appearance on January 7, 1991 (11/6 at 261). 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

(11/6 at 274 ).

Mr. Atti explained the basis for his belief that Mr. Mordenti's case would not go to trial:

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."

(11/6 at 266). Mr. Atti also expected the co-defendant, Larry Royston's case (which was severed) would be tried first. ("Yeah. It was clear that the Royston case was going to go first before Mr. Mordenti's case" 11/6 at 268). 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" (11/6 at 268). Mr. Atti anticipated monitoring the Royston trial and using it as a prime discovery tool ( 11/6 at 268). 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 (11/6 at 269).

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 that would come up during the [Royston] trial" (11/6 at 269).

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" (11/6 at 270). So, he decided that 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, (Def. Exh. 64) approximately 45 days before Mr. Mordenti's capital trial began (11/6 at 271). The agreement was that Mr. Watts would handle the penalty phase and alibi witnesses (11/27 at 35-36). Mr. Atti was to pay Mr. Watts $5,000 from his $50,000 fee (11/6 at 272).

Mr. Atti had not anticipated the cost of discovery depositions, assuming (incorrectly) that the case would be dismissed (11/6 at 274 ). The cost of discovery depositions was also to be paid from the $50,000 fee. Mr. Atti did not realize the "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." (11/6 at 275).

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 (11/27 at 37). 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.

(11/27 at p7-8). Mr. Watts acknowledged that Mr. Mordenti's previous counsel, Mr. 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 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.

(11/27 at 39-40). Accordingly, it was Mr. Watts opinion that Mr. Mordenti did not receive the trial that he was entitled to because the defense was not adequately prepared (11/27 at 81).

Some of the instances of ineffective assistance of counsel include the following:

1. Counsel failed to raise a Rhode Island v. Innis objection to law enforcement arranging an encounter between Michael Mordenti and Larry Royston after Mr. Mordenti invoked his Miranda rights.

2. Statements made by Michael Mordenti to Gail Mordenti Milligan during the time that they were married were introduced without objection. One of these statements was cited as significant by the Florida Supreme Court. Mordenti v. State, 630 So.2d 1080, 1082 (Fla. 1994) ("[Gail] testified that Mordenti had a number of guns that he kept as "throw away" pieces and that she knew he was associated some shady 'people"). However, these statements were objectionable because of marital privilege.

3. Marge Garberson testimony regarding Larry Royston's statements to her were introduced without objection even though they were inadmissible hearsay since they were not statements of a co-conspirator in the course of the conspiracy.

4. Trial counsel failed to discover the true nature of Gail's immunity, which was use immunity as opposed to the total immunity she claimed. If the State did not breach its obligation under due process by failing to correct the inaccurate testimony, then counsel was ineffective for failing to learn the true nature of the immunity.

5. Mr. Atti rendered ineffective assistance when he did not know how to introduce Gail Mordenti Milligan's prior inconsistent sworn testimony indicating that she obtained possession of the gun prior to the homicide. Even though he believed that this prior statement was pivotal to the defense, he simply was not knowledgeable in basic law regarding how to get the statement admitted.

6. Mr. Atti failed to get his own metallurgist to analyze the bullets or the adequacy of the FBI database and whether it supported the FBI's conclusions. The defense failed to make a Frye objection. Obtaining a metallurgist would have been a back up to his failure to get Gail's inconsistent statements admitted.

7. The defense possessed a deposition of Ray Cabral indicating that Michael Mordenti had called him in May of 1989 about buying a boat that he was trying to sell as a favor to Gail. Mr. Cabral's description of the boat matches the description of the boat that Gail had tried to sell for Royston, a speed boat used in the making of a movie. This testimony would have provided the explanation for 13 minute cell phone call that Gail Mordenti Milligan claimed was about arranging the murder. Of course, the defense was unaware of Gail Mordenti Milligan's statement to Karen Cox indicating that Royston was trying to sell a speed boat used in a movie (Def. Exh. 15).

8. The defense also failed to adequately prepare for Gail Mordenti Milligan's testimony. Mr. Atti testified:

I attempted to depose her, I believe, my recollection is on a number of occasions. For some reason she was not able to make it. The only contact I had with her was a few days before trial, a deposition in this building in Karen Cox's office that I was – I believe it was a Friday night, relatively late. It was July 4^th weekend, if I remember correctly. That was my first and only contact with her prior to trial.

(11/6 at 284). The defense possessed numerous documents of Gail's dire financial conditions and potential criminal and civil liability as the time of her April 11^th luncheon with Larry Royston. These documents included:

A. Defense Exhibit 52: Gail Mordenti's bankruptcy suit filed 10/89

B. Defense Exhibit 53: Mullholland suit 1988

C. Defense Exhibit 54: Great Western Mortgage foreclosure suit initiated 12/89

D. Defense Exhibit 55: Canini Bad Taxes Small Claims Suit filed 7/29/89

E. Defense Exhibit 56: Fortune Savings Bank Suit filed 6/89

F. Defense Exhibit 58: Grand Theft Investigation dated 5/89 (including Gail's April 12, 1989, statement to police).

G. Defense Exhibit 28: Margaret Coleman's signature forged by Gail Mordenti on $28,000 check.

These documents should have been used to reveal Gail Mordenti Milligan's true character and true motives. Of course, the State failed to disclose Gail's date-book and Gail testified falsely at trial regarding when the first luncheon with Royston occurred. These documents take on much greater significance when Gail is forced to acknowledge that the luncheon occurred on April 11^th. However, trial counsel was also hampered by the State's failure to disclose Gail's statements to Karen Cox. Any and all statements made by Gail to Nick or Karen Cox were important for him to have and look for inconsistences (11/6 at 285). Yet, the State failed to disclose all of the statements.

9. The defense failed to use Jack Gartley to establish romantic involvement between Gail Mordenti Milligan and Larry Royston. He also could have revealed the falsity of Gail's claim that she asked Jack about committing the murder.

10. The defense also possessed Gail's April 12^th statement to law enforcement that Jack Gartley was an "albatross around her neck." Def. Exh. 58. This would have impeached Gail's credibility when she says she solicited Jack Gartley, the albatross around her neck, to commit the murder.

11. Even though the defense possessed depositions conducted by predecessor counsel's investigator, Steven Millwee, defense counsel never talked to Mr. Millwee to learn about the context that the depositions were given in. Not everything the witnesses told Mr. Millwee ended up in the deposition. As a result, the defense was unprepared for the State's use of the depositions to impeach witnesses by asserting that the witnesses were lying when they claimed to have told Mr. Millwee information that did not appear in the four corners of the deposition.

12. The defense did not contact Lynn Bouchard until mid-June just before trial. The delay precluded the defense from being prepared to adequately present her testimony. As a result, the defense at trial decided not call Ms. Bouchard because the attorneys did not have an adequate handle on the facts regarding her purchase of a car from Michael Mordenti. Moreover, the State introduced her timecards anyway. So, the jury never got to hear Ms. Bouchard explain that she frequently did not punch in on her timecard.

13. The defense neglected to locate Maria Rotering who could have corroborated Lynn Bouchard's testimony. The failure to locate Maria Rotering was due to the late preparation of the defense's case.

14. Richard Watts was forced to do discovery depositions that he was not prepared for. As a result, Mr. Watts failed to know that Michael Milligan was Gail's live-in boyfriend on March 8, 1990, when he was questioning Detective Baker about arresting Gail on March 8^th. Because of this lack of knowledge, he failed to ask pertinent questions about Michael Milligan, a potential suspect (11/27 40-41). Similarly, Mr. Watts was unprepared for the deposition of Detective King and failed to ask him about locating the motel that Gail claimed she and Michael Mordenti went to the night that they allegedly visited the Royston place.

15. The defense's only preparation for Horace Barnes' testimony was a five minutes conducted without a court reporter right before Mr. Barnes' took the witness stand. Mr. Atti in cross-examining Mr. Barnes failed to ask any questions designed to elicit Mr. Barnes bias against Mr. Mordenti and efforts to gain benefit from the State. Yet, Mr. Barnes' testimony was relied upon by the Florida Supreme Court as corroborating Gail Mordenti Milligan's testimony. Further, Mr Atti failed to ask for a mistrial after Mr. Barnes' testimony regarding Mr. Mordenti's purported "mob" association. The Florida Supreme Court relied on this unreasonable failure as a procedural bar.

16. Mr. Atti failed to challenge Karen Cox's false argument that Michael Mordenti had denied knowing who Larry Royston was when he was questioned in February of 1990. The police reports clearly demonstrated that Ms. Cox's argument was false.

17. The defense unreasonably failed to present Barry Carmody at either the guilt or penalty phases of the trial to impeach Horace Barnes and to explain that Michael Mordenti's involvement with a bank robber was the assistance he provided the FBI in catching the bank robber.

18. The defense unreasonably failed to call Steve Cook to corroborate Anna Lee's testimony.

19. The defense unreasonably failed to notice that the crime scene photograph impeached Gail Mordenti Milligan's claim that Michael Mordenti was lamenting his failure to get Thelma Royston's jewelry.

20. The defense unreasonably failed to ask for a continuance of the trial. Richard Watts knew that the defense was not prepared for trial. However, Mr. Atti refused to ask for a continuance.

21. The defense failed to interview Michael Milligan, Gail's husband and a prime suspect.

Mr. Atti testified that Michael Milligan (whom Gail married April 20, 1990) was an individual that he definitely wanted to interview, whom he had subpoenaed for deposition and for trial, but with whom he never spoke (11/6 at 283). This failure to interview Michael Milligan precluded trial counsel from learning that Michael Milligan matched the description of a man seen near the Royston place at the time of the murder. The descriptions had been given by Mr. Redmon and Mr. Baxter. Of course, trial counsel was handicapped in this regard by the State's failure to disclose Michael Milligan's statement to Karen Cox and Gail Mordenti Milligan's date-book which contained reference on June 7, 1989, to "call on ticket for Michael." Gail has explained that this call was in reference to Michael Milligan.

22. The defense failed to obtain grand jury testimony of Gail Mordenti Milligan which contained inconsistencies with her trial testimony and could have been used to impeach her credibility.

23. The defense failed to challenge the admissibility of the FBI's hair analysis as irrelevant in failing to prove anything.

24. The defense failed in using admissible evidence regarding Gail Mordenti Milligan's reputation in the community for not being truthful.

25. The defense also failed at the penalty phase. Counsel's performance was deficient in failing to call Barry Carmody and Dr. Fireman. Dr. Fireman provided defense counsel information that Mr. Mordenti maintained his innocence, was depressed about being wrongly accused and did not exhibit or possess homicidal energy.

26. The defense unreasonably failed to expose the fallacy in the State's argument that Gail Mordenti Milligan was telling the truth because she knew that Ms. Royston was shot – supposedly a secret. First, it is no surprise that Gail Mordenti Milligan would know this information since she was the key player in the murder plan to begin with. Second, the plan to shoot Ms. Royston was no secret, others such as Ms. Garberson knew of the plan to shoot Ms. Royston and testified about it.

When the cumulative impact of all of counsel's failings are considered, it is clear that confidence is undermined in the outcome of both the guilt and penalty phase proceedings.

4. Newly Discovered Evidence of Innocence under Jones Claim

The Florida Supreme Court has recognized that newly discovered evidence of innocence warrants a new trial where it establishes that had the jury known of the new evidence it probably would have probably acquitted. Jones v. State, 591 So. 2d 911 (Fla. 1991). The Florida Supreme Court has recognized that newly discovered impeachment evidence may warrant a new trial where had the jury known the new impeachment evidence it probably would have acquitted the defendant. State v. Mills, 788 So. 2d at 250 (Fla. 2001). Here, the new evidence of innocence in conjunction with the new evidence presented at the evidentiary hearing establishes that the jury probably would have acquitted had all of this evidence been known. When viewed in conjunction with other evidence never presented because of the State's discovery violations and/or trial counsel's deficient performance, there can be no question that Mr. Mordenti's conviction cannot stand. Had this evidence been known by the jury Mr. Mordenti probably would have been acquitted and probably would not have been sentenced to death.

Here, Gail Mordenti Milligan's testimony that she does not know when she received the gun that she subsequently provided the police and which was admitted into evidence at Mr. Mordenti's trial may constitute newly discovered evidence of innocence. If this Court rejects Mr. Mordenti's argument that this testimony established that the State presented false evidence at Mr. Mordenti's trial, this Court must consider whether Gail Mordenti Milligan's recantation of her trial testimony when considered cumulatively warrants a new trial under Jones and Mills.

Similarly, this Court must consider Gail Mordenti Milligan's recantation of her trial testimony regarding the date of her luncheon with Larry Royston as newly discovered evidence of innocence if this Court concludes that the State did not improperly suppress this evidence at trial. Evidence that the trial testimony was false as to the sequence of events, completely undercuts the credibility of the testimony and warrants a new trial.

This Court must also consider the newly discovered metallurgy evidence to the extent that this Court does not find either a Brady violation nor ineffective assistance of counsel. The evidence presented at the evidentiary hearing establishes that the metallurgical analysis presented at trial was bottomed on junk science.

Mr. Mordenti also presented evidence which may qualify as newly discovered evidence of innocence under Jones as to the FBI's review of Agent Malone's hair analysis if this Court does not find that this evidence was suppressed by the State at the time of trial.

When this evidence is considered cumulatively, a new trial is clearly required.

5. Conclusion

In analyzing the prejudicial impact of the Brady evidence, Strickland evidence, and Jones evidence, the evidence must be evaluated cumulatively in deciding whether a new trial is warranted. The Florida Supreme Court in Jones v. State, 709 So.2d 512 (Fla. 1998), and reaffirmed in Lightbourne, made it clear that the cumulative analysis is in fact legally required where a Brady claim, an ineffective assistance claim, and/or a Jones v. State claim are presented in a 3.850 motion. In State v. Gunsby, the Florida Supreme Court ordered a new trial in Rule 3.850 proceedings because of the cumulative effects of Brady violations, ineffective assistance of counsel, and/or Jones evidence of innocence using the following analysis:

Gunsby raises a number of issues in which he contends that he is entitle to a new trial, two of which we find to be dispositive. First, he argues that the State's erroneous withholding of exculpatory evidence entitles him to a new trial. Second, he asserts that he is entitled to a new trial because new evidence reflects that the State's key witnesses at trial gave false testimony in order to implicate him in a murder he did not commit and to hide the true identity of the murderer.

* * *

Nevertheless, when we consider the cumulative effect of the testimony presented at the 3.850 hearing and the admitted Brady violations on the part of the State, we are compelled to find, under the unique circumstances of this case, that confidence in the outcome of Gunsby's original trial has been undermined and that a reasonable probability exists of a different outcome. Cf. Cherry v. State, 659 So.2d 1069 (Fla. 1995)(cumulative effect of numerous errors in counsel's performance may constitute prejudice); Harvey v. Dugger, 656 So.2d 1253 (Fla. 1995)(same). Consequently, we find that we must reverse the trial judge's order denying Gunsby's motion to vacate his conviction.

Gunsby, 670 So.2d at 923-24 (emphasis added). See Young v. State, 739 So.2d 553 (Fla. 1999). The Florida Supreme Court held in Lightbourne v. State, 742 So.2d at 247 that a cumulative analysis of Mr. Lightbourne's Brady claim and his newly discovered evidence was required. This means Mr. Mordenti's claims require cumulative consideration of all Mr. Mordenti's claims that he did not receive a constitutionally adequate adversarial testing because his jury did not hear favorable and exculpatory evidence. The claims presented previously must be evaluated cumulatively with the evidence presented herein. Way v. State, 760 So.2d 903 (Fla. 2000). If considering the claims cumulatively results in a loss of confidence in the reliability of the outcome, relief is warranted. Young v. State; Kyles v. Whitley.

Under the mandated analysis, confidence in the outcome of both the guilt and penalty phases must be undermined. Rule 3.850 relief is required.

WHEREFORE, undersigned counsel moves this Court to enter an order vacating Mr. Mordenti's conviction and death sentence.

COUNSEL HEREBY CERTIFIES that a true copy of the foregoing motion has been furnished by United States Mail, first class postage prepaid, to all counsel of record on January 25, 2002.

Respectfully submitted,

MARTIN J. McCLAIN

Special Assistant CCC-NR

Florida Bar No. 0754773

HEIDI BREWER

Assistant CCC-NR

Florida Bar No. 0046965

1533 South Monroe Street

Tallahassee, Florida 32301

(850) 487-4376

Attorneys for Mr. Mordenti

Copies furnished to:

Sharon Vollrath

Assistant State Attorney

Office of the State Attorney

Hillsborough County Court Annex

800 E. Kennedy Blvd. 3^rd Floor

Tampa, Florida 33602-4199

Robert Landry

Assistant Attorney General

Office of the Attorney General

Westwood Building, Seventh Floor

2002 North Lois Avenue

Tampa, Florida 33607