Comes now the Defendant, MICHAEL RIVERA, by and through undersigned counsel and respectfully requests that this Court enter an order directing the State to disclose any information and/or any impeachment information regarding Mr. Rivera’s case or witnesses involved in Mr. Rivera’s case. In support of this request, Mr. Rivera states as follows:

1. On September 29, 1999, Mr. Rivera filed a Motion to Vacate Judgments of Conviction and Sentence with Special Request for Leave to Amend. In this motion, Mr. Rivera requested the Court’s permission to conduct DNA testing. See Claim IV of the Motion to Vacate.

2. According to press accounts on March 20, 2001, in the Miami Herald and the South Florida Sun-Sentinel, "Broward Sheriff Ken Jenne has ordered DNA testing for six of Broward’s Death Row inmates." The list of six death row inmates included Michael Rivera. This was apparently announced at a press conference on Monday, March 19, 2001. See Accompanying Motion for Disclosure. "Chuck Morton, who heads the State Attorney’s Office’s homicide unit [said] ‘We felt we should go back and look at the DNA, where it is available, to make sure we got the right person or to exonerate anyone if we got the wrong person.’" The decision to reopen the investigation in the six cases was apparently linked to the decision by "Gov. Jeb Bush to appoint a special prosecutor to investigate allegations that Richard Scheff, the lead sheriff’s detective in the [Frank Lee] Smith case, may have perjured himself on the witness stand in that case." The appointment of a special prosecutor had been made at the Broward County State Attorney’s request.

3. Introduced into evidence at Mr. Rivera’s trial was a hair found in van belonging to Mark Peters (State’s NNN for identification, item 11). This hair was compared to another hair introduced into evidence, a known head hair from the victim, Staci Jazvak (State’s CCC for identification, State’s #58 in evidence). The comparison was made by Howard Seiden of the Broward Sheriff’s Office (R. 1293). He testified: "It’s my scientific opinion that the hair from the bed of the van could be concluded as being a source from the victim, item number five, which was the head hair sample of the victim." (R. 1305).

4. Recently, in State v. Holton, a capital case from Hillsborough County, the Honorable Daniel Perry granted a defendant’s request in 3.850 proceedings for DNA testing of hair found on a deceased victim and identified in 1986 as possibly coming from the defendant and argued by the prosecutor in that case as definitely not the victim’s hair. Attachment A. The request by Mr. Holton had been made in August of 1999. On November 15, 2000, the mitochondrial DNA testing was concluded and it was discovered that the hairs came from the victim or a maternally related individual. "Rudolph Holton is clearly excluded as a possible contributor of the questioned hairs." Attachment B.

5. Mr. Rivera made his request for DNA testing in his 3.850 motion filed within a month of Mr. Holton’s request. Mr. Rivera should be entitled to no less consideration than Mr. Holton. Mr. Rivera seeks to have the hair evidence introduced against him at his trial tested by the same examiner used in State v. Holton: Terry Melton; Mitotyping Technologies, LLC; 1981 Pine Hall Dr.; State College, PA; 16801.

6. Since the Broward Sheriff has called for DNA testing in this case, the testing of the hair introduced into evidence against Mr. Rivera should occur as expeditiously as possible.

WHEREFORE, Counsel for Mr. Rivera moves this Court to enter an order granting the release of the exhibits so that Mr. Rivera can obtain mitochondrial DNA testing of the hair evidence introduced against him at his trial.

COUNSEL HEREBY CERTIFIES that a true copy of the foregoing motion has been furnished by first class mail, postage prepaid, to all counsel of record on March ___, 2001.

Respectfully submitted,

 

________________________ MARTIN J. McCLAIN

Special Assistant CCRC-South Florida Bar No. 0754773

SUZANNE MYERS

Assistant CCRC-South

Florida Bar No. 0150177

 

101 N.E. 3^rd Ave.

Suite 400

Ft. Lauderdale, Florida 33301

(954) 713-1284

Attorneys for Mr. Rivera

 

 

 

Copies furnished to:

Honorable Paul Backman

Circuit Court Judge

Broward County Courthouse

201 S.E. 6th St.

Ft. Lauderdale, Florida 33301

Susan Bailey

Assistant State Attorney

Office of the State Attorney

201 S.E. 6^th St., Rm. 675

Ft. Lauderdale, Florida 33301

Celia Terenzio

Assistant Attorney General

Office of the Attorney General

1655 Palm Beach Lakes Blvd., Suite 300

West Palm Beach, Florida 33401