Comes now the Defendant, MICHAEL RIVERA, by and through undersigned counsel and replies to the State’s Response 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. 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. Thereafter on March 28, 2001, Mr. Rivera filed a separate Motion for DNA Testing of Hair Evidence. Mr. Rivera’s counsel who had been involved in mitochondrial DNA testing of hair evidence in another capital case pointed out the national shortage of qualified mitochondrial DNA testers and suggested the examiner that the Hillsborough County State Attorney’s Office had stipulated to in the case of Rudolph Holton. At that point (March 28, 2001), eighteen months after Mr. Rivera’s filed his Motion to Vacate containing his request for DNA testing, the State had not responded in any fashion to the request.

4. On May 18, 2001, with no response to his September 29, 1999, request for DNA testing, and with no response to his March 28, 2001, request for DNA testing and with news accounts indicating that unilateral DNA testing was being undertaken, Mr. Rivera filed his motion seeking to preclude destruction of evidence through unilateral DNA testing. Mr. Rivera’s motion objected to the lack of notice or contact with Mr. Rivera’s counsel regarding the DNA testing that was being touted in newspaper stories. Mr. Rivera’s motion requested that he or his counsel should be permitted to participate in the selection of the DNA examiner or have a DNA examiner of his own choosing witnessing the procedure and/or conducting additional testing.

5. Nearly two more months past before the State deemed to respond to Mr. Rivera’s May 18, 2001, motion by filing a Response on July 5, 2001.

6. Mr. Rivera had also filed on March 29, 2001, a Motion for Disclosure of Exculpatory and Impeachment Evidence. The State has chosen not to respond to that motion at all and has made no disclosures.

7. In its response to the May 18, 2001, motion, the State on July 5, 2001, filed a Response interpreting Mr. Rivera’ motion as an "objection to the Broward Sheriff’s Office conducting any gratuitous testing whatsoever." Opposing counsel, Carolyn McCann, Assistant State Attorney, the very same Carolyn McCann who opposed DNA testing in Frank Lee Smith’s case while he was alive, has represented that the State is offering a "good faith, gratuitous, initiative" to conduct DNA testing of unnamed evidence by unnamed testers using unspecified methods.

8. The response not only fails to identify what evidence that the "good faith, gratuitous initiative" extends to, but it lacks any information regarding the process under which the Broward Sheriff’s Office will conduct a review of Mr. Rivera’s case and/or conduct DNA testing. For example, there is no inventory of the evidence that is available in the case to determine what, if any evidence would be testable and tested. This would include any and all evidence that was not actually introduced at the trial. Additionally, Mr. Rivera should be informed as to which examiner will do the testing, and should receive all information pertaining to the experience of that examiner in conducting DNA testing. For example, what are the examiner’s protocols for conducting DNA testing, their protocols for maintaining physical evidence, what machinery will be used to do the testing, and what methods of testing the laboratory is capable of doing. This is necessary not only to determine the examiner’s expertise, but also the risks of contamination. Contamination is a serious problem and a serious issue when it comes to DNA testing.

9. Further, the State’s protestation of its own "good faith" must be challenged under the circumstances presented here. The State by vouching for its "good faith" in the response that it filed, has made its good faith an issue. Surely, it was not good faith for the opposing counsel to not respond to Mr. Rivera’s September, 1999, request for DNA testing for 21 months. Surely, it was not good faith for the State to inform the news media in March, 2001, that it intended to do DNA testing in Mr. Rivera’s case and to inform neither Mr. Rivera’s counsel nor this Court when a motion seeking DNA testing had been pending since September of 1999. Surely, it was not good faith to fail to respond to Mr. Rivera’s March, 2001, motion for DNA testing for over three months, while at the same time to repeatedly discuss with the news media its intention to conduct DNA testing in Mr. Rivera’s case.

10. Moreover, the State’s failure to disclose evidence impeaching Detective Scheff’s credibility is not good faith. Detective Scheff was one of main investigating law enforcement officers in this case, as he was in the case of Frank Lee Smith. As was revealed in a July 26, 2001, article in the New Times Broward-Palm Beach, Detective Scheff changed his testimony in the Frank Lee Smith case yet again, while being investigated for perjury. Evidence impeaching not only a police officer’s testimony, but the reliability of the techniques employed are exculpatory evidence which must be disclosed to the defense. Kyles v. Whitley, 115 S.Ct. 1555 (1995). In fact, the Florida Supreme Court has recently found newly discovered impeachment may warrant a new trial and/or a resentencing in a capital case. State v. Mills, ___ So.2d ___ (Fla. June 6, 2001).

11. Additionally, the State in a separate action has now challenged undersigned counsel’s ability to represent Mr. Rivera in his challenge to his prior conviction in the Jennifer Goetz case. Even though the State lost its challenge to CCR’s representation of Mr. Rivera in 1996, the State has now filed a quo warranto petition in the Florida Supreme Court seeking to deprive Mr. Rivera of counsel to pursue that challenge. See State ex rel. Butterworth v. Jennings, SC01-1587 (filed July 25, 2001). This tardy effort to deprive Mr. Rivera of his representation in the Goetz case does not reflect "good faith."

12. The State’s good faith is questionable in light of its failure to disclose the full meaning of Mr. Rivera’s conversation with Lt. Rios on February 18, 2001, and Lt. Rios’ understanding that Mr. Rivera had previously and repeatedly invoked his Miranda rights. A Miami Herald article dated June 25, 2001, quoted Rios as saying "I took [Mr. Rivera’s statements] to mean that he was read his rights before, and he didn’t waive." Certainly, Detective Scheff’s changing testimony in the case of Frank Lee Smith constitutes impeachment of his testimony in Mr. Rivera’s case that Rivera "was very cooperative about speaking with us." Detective Scheff’s testimony is further undermined by the new disclosure by Lt. Rios that his understanding was that, contrary to Detective Scheff’s representations, Mr. Rivera had not waived his rights. The undisclosed impeachment evidence calls into question whether Mr. Rivera ever waived his Miranda rights.

13. Beyond the issue of the State’s "good faith" in its offer, the only relevant organic evidence that undersigned is aware of that has not been subject to contamination and is now subject to mitochondrial DNA testing is the hair introduced into evidence at Mr. Rivera’a trial purportedly found in Mark Peters’ van and the dark hair found with Staci Jazvac’s body discussed in Detective Amabile’s affidavit of February 24, 1986, in support of a search warrant issued to obtain hair from Michael Rivera. As explained in the March 28^th motion, there are few examiners qualified to conduct mitochondrial DNA testing. Mr. Rivera has sought and continues to seek DNA testing of those hairs. Despite this simple fact, the State has chosen to not reveal what it is offering to do.

14. The State has not revealed what it proposes to test. If it is something other than the dark hair found with the victim’s body or the hair found in Mark Peters’ van, the supposed scene of the homicide, what is it and where has it been stored and who has had access to it. Mr. Rivera is entitled to have such evidence inspected before it is tested to be prepared to address the relevancy and admissibility of the results. Additionally, Mr. Rivera needs to know so that he can be informed as to whether the evidence is likely to be consumed by the testing and thus not subject to a second examination.

15. The State has not revealed who will conduct the testing. Due process certainly warrants notice and opportunity to be heard. If the examiner is either not qualified or burdened with a conflict of interest, Mr. Rivera has a right to object. The State seems to be seeking a waiver of such an objection without disclosing any of the information necessary for an informed and knowledgeable decision. Before being required to waive such an objection, due process dictates that the examiner’s identity be disclosed.

16. The State’s posturing in this regard belies its good faith. The statement "[i]f the defendant objects to any aspect of the good faith, gratuitous, initiative taken by Law Enforcement, or does not want the case to be reviewed for possible DNA testing, then post-conviction DNA testing will not be conducted by Law Enforcement" coupled with the State’s promise that if Mr. Rivera objects he "will also have to comply with all of the requirements of the statute if he seeks DNA testing" demonstrates that the State is not interested in justice. See Florida Bar v. Cox, ___ So.2d ___ (Fla. May 17, 2001)("A criminal prosecution ‘is not a game where the prosecution can declare, "It’s for me to know and for you to find out"’").

17. The State’s posturing amounts to nothing more than empty exhortations of "trust me, trust me." From Mr. Rivera’s death row cell, he has no basis for trusting what appears to be rhetoric that is belied by history. For fifteen years, Detectives Scheff and Amabile and the State have been trying to execute Mr. Rivera. In the case of Frank Lee Smith, Detectives Scheff and Amabile abetted by the State brought about Mr. Smith’s death before the testing establishing his innocence was permitted. Therefore, he reiterates what he has been asking for since September of 1999. Mr. Rivera seeks mitochondrial DNA testing of the hair found with the victim’s body and found in Mark Peters’ van. And he seeks to have the testing done by a qualified mitochondrial DNA examiner.

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 August ___, 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

Carolyn McCann

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