IN THE SUPREME COURT OF FLORIDA

PRELIMINARY STATEMENT

The following abbreviations will be utilized to cite to the record in ths cause, with appropriate page number(s) following the abbreviation:

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 A[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 Aas long as I told the truth, that I had total immunity.@ (R. 661). Gail elaborated in cross-examination at trial that Aas 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 hired to commit the murder. Mr. Mordenti maintains that 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 with false information. In the post-conviction proceedings below, Gail admitted when showed her undisclosed daily calendar that her trial testimony was "wrong" regarding her timeline of the events (PC-T. 1097).

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 miscarriage of justice and cannot be allowed to stand.

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 with conspiracy to commit murder. The basis of the charge was Gail Mordenti Milligan=s March 8, 1990, immunized statement that she, on behalf of the victim=s husband, hired Mr. Mordenti to commit the murder.

Larry Royston, the victim=s husband, was also charged and indicted. Mr. Royston was represented by John Trevena (PC-

T. 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 Ainformation 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 (PC-T. 534).

Mr. Mordenti=s trial commenced July 8, 1991. At his trial, Mr. Mordenti was represented by John Atti and Richard Watts. The jury found Mr. Mordenti guilty of both counts. 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 (Fla. 1998).

The evidentiary hearing commenced on September 10, 2001. 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 ANotice 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 centerpiece of the State=s case was the immunized testimony of Gail Mordenti Milligan - Michael Mordenti=s ex-wife. According to Gail=s trial testimony, when she was picked up by Detective Baker and Detective Kroll on March 8, 1990, Athey 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 Aif 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, Athat=s correct@ (R. 701).

Gail testified at trial that Larry Royston asked her to find someone to murder his wife, Thelma Royston. Gail testified Larry Royston came to her house for lunch Ait 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). After she was unable to recruit three other individuals, she turned to her ex-husband, Michael Mordenti within a couple of weeks of the luncheon (R. 672-73). According to Gail=s trial testimony, Mr. 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 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 Royston place. This was maybe a month after the first trip, but definitely before Milligan moved in with Gail (R. 682). Gail testified that Michael Milligan moved in to her house Aeither the end of March or beginning of April@ (R. 677).

At trial, Gail testified that Michael Mordenti had given her a loaded gun. AMichael 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 1990, and evidence was introduced at trial regarding the FBI=s metallurgical examination of the bullets. On cross-examination, Gail testified that Mr. Mordenti gave her the gun and bullets while she worked at Carlisle, which was Afrom October of >89 until April of >90, and it had to have been during that time@ (R. 685). A[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 AJanuary, February, March [ ] 89.@ Gail had explained on March 8, 1990, Ayeah, it was kind of a long time ago@ (D-Ex. 37 at 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 AI 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 judge that defense counsel could not mention that the prior inconsistent sworn testimony existed (R. 1224-34).

According to Gail=s trial testimony, when she was picked up by Detectives Baker and Kroll on March 8, 1990, Athey 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 Aif 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, Athat=s correct@ (R. 701).

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 murder happen (R. 629, 742-43). The State also used Mr. 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 she placed the call and handed the phone to Larry (R. 631).

At trial Karen Cox presented the testimony of Horace Barnes. Mr. Barnes testified that Mr. Mordenti Alet 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 Ahe was a hit man@ (R. 748). The trial judge ruled that the mob comment was inadmissible, but the Ahit 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 that were shady.=" Mordenti v. State, 630 So.2d at 1084.

When Gail testified at the evidentiary hearing on November 27^th, she acknowledged that her date-book (D-Ex. 11) established that the luncheon with Larry Royston was not in February or March of 1989, -B 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, AIf my book says that it was April 11^th, then I was wrong@ referring to her trial testimony (PC-T. 1097). The luncheon was at Gail=s invitation. Gail also acknowledged that at this luncheon on April 11^th, she had the first conversation she had with Larry Royston ever about his desire to find someone to kill his wife Thelma (PC-T. 1080). 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.

In this undisclosed daily calendar, Gail=s entry for June 7, 1989, the day Thelma Royston was murdered included the following:

(D-Ex. 12). In 2001, Gail testified that the entry Acall on 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 Aspeeding ticket@ (PC-T. 1089). When asked how she knew that, she answered A[b]ecause he got a lot of them.@ She had no explanation for the entry Amake calls again to Bus Co.@ (PC-T. 1063).

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 have to cross examine her with (PC-T. 530, 532-33). The day after the April 11^th luncheon with Larry, Gail gave a statement to law enforcement regarding an investigation in an allegation that she had and stolen over $200,000 from a bank (D-Ex. 58). The date book and the April 11^th luncheon was important to 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 of Gail (PC-T. 530-33).

During the time between April 11^th and the June 7^th murder, 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; D-Ex. 56, 58). Gail was also being sued by Athe Mulhollan[d] attorneys@ in connection with her receipt of $50,000 from a defendant, Mr. Check, in a civil suit filed by her ex-boyfriend Glenn Donnell. Mr. Donnell=s lawyers believed that Gail and her boyfriend had arranged the financial transaction 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 Amissed the July payment, 1989" (PC-T. 1077). According to Gail, AI realized I was going to have to 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 Ano,@ she had not Afe[lt] like the walls were closing in@ (PC-T. 1079). Bankruptcy Abothered [her]. It=s a blemish on your record, but I didn=t have any other choice@ (PC-

In 2001, Gail testified that she began employment at Glen Donnell=s business venture, AT & D@, on June 1, 1989 (PC-T. 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 (AT &D@) in the month of May were relevant evidence to corroborate Gail=s testimony that Larry kept calling her, Ayou=ll see that Larry Royston places numerous telephone calls to T & D. In May - - Gail Mordenti was working there in May@ (R. 1253-54).

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 given pursuant to a state attorney subpoena (PC-T. 253).

When Det. Baker testified in 2001, he indicated that contrary to Gail=s testimony, it was Gail who first brought up immunity (PC-T. 788; D-Ex. 6). AMs. 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 in 2001, Gail said that Det. Baker=s testimony was not true (PC-T. 1091).

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 Aon golden pond@ not a high powered speed boat

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 A[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 (D-Ex. 14). She indicated that she tried to make the notes Aaccurate 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:

(D-Ex. 14, at 1, lines 10-11). According to this note, Milligan told Ms. Cox that he went to New Mexico in June of 1989, the month of Thelma Royston=s murder. The defense was not provided with these notes nor advised of the content (PC-T. 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 before a federal grand jury (PC-T. 282).

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 Leslie, committed (PC-T. 282-83, 293). Mr. Barnes blamed Mr. Mordenti for his arrest and his trial testimony was Apay 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 willing to testify against him (304, 306, D-Ex. 10 at p. 3). 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 Ashe 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) Abecause you can=t have any contact in prison system@ (PC-T. 296). Mr. Barnes testified that arrangements were made to have contact with Tracey Leslie after he talked to Karen Cox. He had contact in the county jail (PC-T. 296).

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.

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 stated "GET STATE CHARGES TAKEN CARE OF" (PC-T. 705, D-Ex. 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, D-Ex. 23). Mr. Trevena had represented Larry up until his suicide (PC-T. 317). The interview occurred as a result of an ex parte order signed by the trial judge ordering Mr. Trevena 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 client=s death.

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 State on an ex parte basis, Ahe [felt] obligated to reveal 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 minute call on June 7^th had been a business call (PC-T. 332). 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 (PC-T. 915). Mr. Trevena indicated that after the 1991 interview, he did become aware that AKaren Cox listed [him] as a witness for the State at Mordenti=s trial@ (PC-T. 337-38). However in 2001, he had Ano independent recollection of speaking with [Mr. Atti] about it@ (PC-T. 338).

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 Adefinitely@ 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. R. Crim. P. Richard Watts, Mr. Atti=s co-counsel, also testified that the defense was never provided these notes nor the significant information contained therein (PC-T. 912-13).

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 B did you look B what did you do B did you find the B I=m sorry. Strike all of that. Did you ever find the hotel that Ms. Mordenti had B

A. Yes, ma=am.

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.

(PC-T. 799-800). This information was not provided to the defense. Mr. Watts testified, A[t]he name of the motel wasn=t disclosed to us. We couldn=t go and look@ (PC-T. 901, D-Ex. 68).

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.

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 received any training in capital defense litigation. Mr. Atti=s felony experience was very limited. He testified that he graduated law school in 1978 and Adid not practice law right away@ (PC-T. 503). He Areapplied B 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 Avariety 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 A[b]attery cases, DUI cases, domestic type cases. I handled a lot of federal cases regarding court appointed that ranged B that were all kinds of variety, including assault with a deadly weapon B 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 B 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[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 Ato 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.

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.

(PC-T. 507). Mr. Atti also expected the co-defendant, Mr. Royston, to be tried first, AYeah. 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: AIt 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 (PC-T. 509-10). Mr. Atti testified that Mr. Royston=s suicide Adrastically@ changed his expected approach to handling Mr. Mordenti=s case:

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 Ahe 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@ (PC-T. 510).

After Royston=s suicide, Mr. Atti realized that the State had become serious about going after Mr. Mordenti, Athere 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 (PC-T. 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 realize Athe 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 B

A. Never have I had that short of period of time. Usually it=s measured in a year B 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 B I wasn=t familiar with the entire scope of Phase I. I concentrated on preparing the alibi, and I was pretty near ready B 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 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 B you indicated some concerns about not knowing the players. Were you involved in actually doing depositions?

A. This was one of those B another B my growing role, I hadn=t B 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.

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 (PC-T. 154). On March 29^th, 1991 he gave a deposition in this case (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 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 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.

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 numerous legal errors that are subject to de novo review by this Court. Rogers v. State, 782 So.2d 373, 377 (Fla. 2001). The circuit court addressed some of Mr. Mordenti=s claimed 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 Adeliberate 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:

Berger v. United States, 295 U.S. 78, 88 (1935). Accordingly, the Court Aforbade 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). This Court has stated A[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 Ainvolving 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 Aany 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.

During Ms. Cox= closing argument at the trial, she stated:

And when [Michael Mordenti] was questioned again in February of 1990, ANo, 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, AOh, should I - - should I call Larry?@

ANo, don=t call him.@ He doesn=t say, ALarry 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 Astate[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). 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, AThe 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). The jury was given a completely Afalse impression@ of Mr. Mordenti=s truthfulness to law enforcement. Alcorta v. Texas; Garcia v. State.

Det. Baker testified at the 2001 hearing that Gail when 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 Abefore [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 Aclearly 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)(emphasis 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 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.

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. Okay. And that was in the vehicle on the way to the state attorney=s office?

A. That=s correct.

Gail however, testified at trial that she did not approach law enforcement about immunity, but that Athey 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 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, Aas long as I told the truth, that I had total immunity@ (R. 661). Ms. Cox knew that Gail did not have total immunity. In 2001, she testified that Gail only had Ause immunity.@ (PC-T. 26). Gail had no immunity Aother 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, the whole truth. In conjunction with the misleading argument that Gail did not initiate the immunity discussion, the jury was given a completely Afalse 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, Ayou=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 false. At the 2001 hearing, Gail testified that she began employment at T & D, on June 1, 1989. Notes in Ms. Cox=s handwriting reveal that Ms. Cox knew that there was a problem with her argument on this point: When started w. T& D

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