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 Attachments. "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. The Florida Supreme Court has held in a capital post-conviction proceeding that: "upon request, the State is obligated to disclose any document in its possession which is exculpatory. This obligation exists regardless of whether a particular document is work product or exempt from chapter 119 discovery." Johnson (Terrell) v. Butterworth, 713 So. 2d 985, 986 (Fla. 1998)(citations omitted). In Johnson, the Court found that the State’s obligation to disclose favorable evidence was not extinguished by either a conviction or a sentence of death. It makes no difference that a capital defendant is litigating his case in post-conviction: "[T]he State is under a continuing obligation to disclose any exculpatory evidence." Id. at 987; see also Roberts v. Butterworth, 668 So. 2d 580 (Fla. 1996)(finding that Brady obligation continues in post-conviction).

4. This obligation arise under Brady v. Maryland, 373 U.S. 83 (1963). As the Florida Supreme Court recently explained: "Under Brady, the government’s suppression of favorable evidence violates a defendant’s due process rights under the Fourteenth Amendment. See Brady, 373 U.S. at 86 (suppression of confession is violation Fourteenth Amendment)." Rogers v. State, Slip Op. at 7, Case No. 91,044, __ So.2d __ (Fla. February 15, 2001). Favorable evidence has been defined by the United States Supreme Court as exculpatory evidence. Under due process, this includes impeachment evidence. United States v. Bagley, 473 U.S. 667, 676 (1985).

5. The Supreme Court made clear in Kyles v. Whitley, 514 U.S. 419 (1995), that due process requires the prosecutor to fulfill his obligation of knowing what material, favorable and exculpatory evidence is in the State’s possession and disclosing that evidence to defense counsel:

Unless, indeed, the adversary system of prosecution is to descend to a gladiatorial level unmitigated by any prosecutorial obligation for the sake of truth, the government simply cannot avoid responsibility for knowing when the suppression of evidence has come to portend such an effect on a trial’s outcome as to destroy confidence in its result.

Kyles, 514 U.S. at 439. See Strickler v. Greene, 527 U.S. 263 (1999). In order to comply with Brady, therefore, "the individual prosecutor has a duty to learn of favorable evidence known to others acting on the government’s behalf." Kyles, 514 U.S. at 437; Rogers v. State, slip op. at 9. The United States Supreme Court specifically indicated that information impeaching "the reliability of the investigation" was evidence favorable to the accused within the meaning of Brady. Kyles, 514 U.S. at 446. Thus, evidence which demonstrates a shoddy or negligent investigation by law enforcement must be disclosed by the prosecution in order to comply with due process. Kyles, 514 U.S. at 447.

6. In Strickler v. Greene, the United States 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." 527 U.S. 263, 281 (1999), quoting Berger v. United States, 295 U.S. 78, 88 (1935). The Court also repeated that a prosecutor has a duty to disclose exculpatory evidence even though there has been no request by the defendant, 527 U.S. at 280, and that the prosecuting attorney has a duty to learn of any favorable evidence known to individuals acting on the government’s behalf. Strickler, 527 U.S. at 281.

7. In the circumstances presented here, where the Broward Sheriff’s Office has announced to the news media its intention to reopen the criminal investigation of Mr. Rivera’s case, the prosecutor has a constitutional duty to learn of evidence which is favorable to Mr. Rivera and disclose it. This includes discovering and disclosing evidence which undermines the reliability of the original investigation and those who conducted it.

8. So far, despite the news accounts regarding the investigation into Detective Scheff, one of the lead detectives in the investigation in Mr. Rivera’s case, the prosecution has not disclosed any exculpatory or impeachment evidence to Mr. Rivera or his counsel regarding this.

9. Undersigned counsel are aware of the investigation of Detective Scheff for perjury in the Frank Lee Smith. However, they have received no disclosures from the State regarding Detective Scheff’s false testimony in that case. Mr. Rivera specifically requests any evidence in the State’s possession which supported and/or justified the request for a special prosecutor to look into perjury charges against Detective Scheff. Additionally, Mr. Rivera requests the disclosure of any evidence of shoddy or unreliable police work by Detective Scheff in the Smith case or any other case.

10. Detectives Scheff and Amabile were the lead detectives in the Frank Lee Smith case, and in Michael Rivera’s case as well. They investigated the Frank Lee Smith case in April of 1985. They investigated the charges against Michael Rivera in February of 1986. Any misconduct or negligence in the Frank Lee Smith obviously occurred prior to Michael Rivera’s trial and should have been disclosed under Kyles.

11. On September 28, 2000, the Florida Supreme Court issued its opinion in Keen v. State, 775 So.2d 263, 282 (Fla. 2000), wherein the Court addressed an issue regarding the cross-examination "of detectives Amabile and Scheff regarding prior discipline for allegedly improper interrogation techniques in other cases." Detectives Scheff and Amabile were the lead detectives in the case against Mr. Keen. The investigation occurred in August of 1984. The "prior discipline" of Scheff and Amabile has not been disclosed to Mr. Rivera nor his counsel. Such prior discipline certainly comes within the scope of Kyles. The prosecuting attorney has a duty to learn and disclose this "prior discipline" which was imposed upon Scheff and Amabile and which was apparently disclosed to the defense in Keen.

12. Mr. Rivera also requests any impeachment information obtained by the State regarding any of the witnesses involved in the prosecution of Mr. Rivera, not limited to Detectives Scheff and Amabile. For example it is known from Chapter 119 materials that Detective Eastwood, Detective Asher, Sgt. Carney, and Lt. Rios, all participated in the interrogation of Michael Rivera, between February 13, 1986, and February 18, 1986. To the extent that the internal review following the Frank Lee Smith case turned up evidence which could impeach other Broward Sheriff personnel, Mr. Rivera specifically requests that the evidence be disclosed.

13. Frank Zucarello was called as a witness for the State at trial and claimed that Michael Rivera had confessed the Jazvak murder to him in jail. Counsel has learned that Captain Tony Fantigrassi signed an affidavit in February of 1999 in a Dade County case indicating that "On July 1, 1988, I spoke with Zucarello regarding [a claim he had provided the sheriff’s office false information in the Hodak homicide]. Zucarello admitted to me that he had lied and falsely iimplicated Donald Duck Lamberti in the Hodak homicide." Captain Fantigrassi further stated "In late July, 1998, I received a telephone call from Assistant State attorney Brian Cavanaugh who is the prosecutor in the Hodak homicide. I had previously shared with Mr. Cavanaugh my feelings that Zucarello could not be believed and that neither Anthony Caraciollo nor Tommy Joslin a/k/a Tommy Lamberti were involved in the Cohen homicide." Captain Fantigrassi concluded "It is my opinion that Frank Zucarello is an untrustworthy witness who should not be believed under oath or otherwise."

14. According to this affidavit, Captain Fantigrassi realized by July of 1988, that Zucarello was providing law enforcement false information. Captain Fantigrassi informed the State Attorney’s Office. Yet, neither Mr. Rivera nor his counsel have received any disclosures regarding this as required by due process. Apparently, it was known by Broward law enforcement that Frank Zucarello "should not be believed under oath," and yet the prosecutor’s have continued to rely upon his under oath testimony to keep Michael Rivera on death row. Apparently, Zucarello repeatedly flunked lie detector tests, yet none of this has been disclosed. The prosecution has not disclosed any documentation from the sheriff’s office regarding the fact that law enforcement concluded that Zucarello was entirely untrustworthy.

15. Counsel knows that Dr. Wright, a medical examiner and witness against Mr. Rivera, testified in 1998 in case involving Lloyd Duest, that his previous expert testimony in 1983 was incorrect. In 1983, Dr. Wright testified that the victim in that case died somewhere between fifteen seconds and five minutes after being stabbed. In 1998, Dr. Wright acknowledged his prior testimony, but indicated that it was in error. His new testimony was that upon reviewing his files and notes the victim in that case had survived between fifteen and thirty minutes. He further opined for the first time that the victim would have survived if he had called 911. The fact that Dr. Wright testified that his original testimony in the Duest case was wrong is impeachment evidence which could be used to denigrate his testimony against Mr. Rivera. Other instances of false, erroneous or inaccurate opinions or testimony by Dr. Wright must be discovered by the prosecution and disclosed to Mr. Rivera’s counsel. Any instances wherein Dr. Wright’s conclusions were found to be erroneous would constitute impeachment evidence which must be disclosed under Kyles.

16. Given all of this, it is not surprising that the Broward Sheriff concluded that the investigation should be reopened. Undersigned counsel welcome that decision. However, all evidence in the State’s possession (i.e. the State Attorney’s Office, the Broward Sheriff’s Office, or some other arm of law enforcement) which impeaches the State case against Mr. Rivera or impugns the investigation or those who conducted the investigation must be disclosed under the Due Process Clause of the United States Constitution. American principles of fairness dictate that the prosecuting attorney has an obligation to seek and disclose evidence which would assist a capital defendant in challenging his conviction and sentence of death.

WHEREFORE, Counsel for Mr. Rivera moves this Court to enter an order directing the State to disclose any exculpatory evidence and/or impeachment evidence that it has obtained throughout it's prosecution of Mr. Rivera, including in post-conviction.

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