__________________________/

MICHAEL RIVERA, by and through undersigned counsel, respectfully moves this Court for an Order, pursuant to Fla. R. Crim. P. 3.850, vacating and setting aside the judgments of convictions and sentences, including the sentence of death, imposed on him by this Court. In support thereof, Mr. Rivera, through counsel, respectfully submits the following:

1. The Circuit Court of the Seventeenth Judicial Circuit, Broward County, entered the judgments of conviction and sentence. 2. Mr. Rivera was charged by indictment on August 6, 1986, with first degree murder (R. 2164). Mr. Rivera was adjudicated guilty on April 16, 1987, and on April 17, 1987, the jury recommended a death sentence (R. 2296, 2307). On May 1, 1987, the trial court imposed a death sentence (R. 2308-13).

3. On direct appeal, the Florida Supreme Court affirmed Mr. Rivera's conviction and sentence but reversed the finding that the offense was cold, calculated and premeditated. Rivera v. State, 561 So. 2d 536 (Fla. 1990).

4. On October 31, 1991, Mr. Rivera filed a Rule 3.850 motion and subsequently filed two amended Rule 3.850 motions. Along with his Rule 3.850 motion, Mr. Rivera filed a motion to disqualify the trial court judge (PC-R. 739-49). Mr. Rivera subsequently filed two additional motions to disqualify the judge (PC-R. 1024-40, 1604-18). The motions were all denied (PC-R. 783, 1143).

5. The circuit court ordered an evidentiary hearing on limited claims. The court summarily denied the remainder of the claims without attaching any files and records demonstrating that the claims were conclusively refuted by the record (PC-R. 1205-06). The circuit court subsequently denied all relief (PC-R. 1717-21). Mr. Rivera timely filed notice of appeal (PC-R. 1760)

6. On appeal, the Florida Supreme Court reversed on the issue of penalty phase ineffective assistance of counsel and remanded for an evidentiary hearing with regards to that issue, but affirmed the order denying relief on all other issues. Rivera v. State, 717 So. 2d 477 (Fla. 1998).

7. This Court held an evidentiary hearing on April 26-28, 2001. Thereafter, this Court denied relief. Mr. Rivera appealed the denial to the Florida Supreme Court. On September 11, 2003, the Florida Supreme Court affirmed the denial of Mr. Rivera’s penalty phase ineffective assistance of counsel claim. Rivera v. State, 859 So. 2d 495 (Fla. 2003).

8. Meanwhile, on September 29, 1999, Mr. Rivera had filed a second Rule 3.850 motion before this Court based upon new evidence of previously undisclosed information. He filed an amended Rule 3.850 motion on September 27, 2001, in light of additional new evidence of previously undisclosed information.

9. On July 11, 2002, while Mr. Rivera’s appeal of the denial of his penalty phase ineffective assistance of counsel claim was pending in the Florida Supreme Court, that court relinquished jurisdiction for this Court to consider Mr. Rivera’s second Rule 3.850 motion and its amendment of September 27, 2001.

10. During the ensuing proceedings, additional public records were disclosed and DNA testing of evidence was ordered and conducted. This Court granted Mr. Rivera leave to file one new amendment with all the new information disclosed and/or discovered in the course of the proceedings following the Florida Supreme Court remand.

11. This is a second amendment to Mr. Rivera’s second motion for postconviction relief. This amendment is timely filed.

By his motion for Fla. R. Crim. P. 3.850 relief, Mr. Rivera asserts that his convictions and sentences, including his sentence of death, were obtained in violation of the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United State Constitution and the corresponding provisions of the Florida Constitution for each of the reasons set forth below.

MR. RIVERA WAS DEPRIVED OF DUE PROCESS UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION WHEN THE PROSECUTION INTENTIONALLY PERMITTED FALSE AND/OR MISLEADING EVIDENCE TO BE PRESENTED TO MR. RIVERA’S JURY AND USED IT TO OBTAIN A CONVICTION.

This claim is evidenced by the following:

1. All other allegations and factual matters contained elsewhere in this and any prior motions are fully incorporated herein by specific reference.

2. In Giglio v. United States, 405 U.S. 150, 153 (1972), the 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 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, "[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).

3. 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.

4. The Florida Supremes Court has recently explained, "[t]he State as beneficiary of the Giglio violation, bears the burden to prove that the presentation of false testimony at trial was harmless beyond a reasonable doubt." Guzman v. State, 28 Fla. L. Weekly S829, 2003 Fla. LEXIS 1993 *16, *18 (Fla. 2003). The Florida Supreme Court described this standard as a "more defense friendly standard" than the one used in connection with a Brady violation. Id. at *19.

5. At Mr. Rivera’s trial in April of 1987, the State called Frank Zuccarello (R. 1402). Mr. Zuccarello testified that he first met Michael Rivera in the Broward County Jail in April of 1986 (R. 1402). During the following several months, Mr. Zuccarello had several conversations with Mr. Rivera regarding Mr. Rivera’s case ("Q - When did you have this conversation with Mr. Rivera? A - There were several times. Q - What dates? A - I don’t recall the date. It was from April ‘86 to about June of ‘86." R. 1411). Mr. Rivera discussed his case with Mr. Zuccarello "[a]t least" "fifteen, sixteen different times" (R. 1417). Mr. Zuccarello also indicated that one of the discussions with Mr. Rivera was the day that Mr. Zuccarello "went to the grand jury" (R. 1417). Thereafter, Mr. Zuccarello testified that he contacted Nick Argentino with the Broward Sheriff’s Office (R. 1406). Mr. Zuccarello told Deputy Argentino about his conversations with Mr. Rivera. Mr. Zuccarrello indicated that when he made a statement about what Mr. Rivera had told him that he had already pled guilty ("I did plead guilty beforehand" (R. 1415)). Mr. Zucarello explained that he told Deputy Argentino what Mr. Rivera had told him "[b]ecause I think what he did was a sick act" (R. 1406). The prosecutor then asked, "Had anyone at that point promised you anything?" Mr. Zuccarello answered, "No" (R. 1406). Later during cross, Mr. Zuccarello indicated that he had been "convicted of 23 felonies on two separate cases because that was part of my plea agreement" (R. 1409-10). Pursuant to the plea agreement, he received seven years (R. 1410). Defense counsel then asked in cross, "And you say that the State of Florida has not made any deals with you regarding your testimony here today?" (R. 1410). Mr. Zuccarello answered, "No, sir. Other than I had a mitigation filed and that’s not guaranteed" (R. 1410). Mr. Zuccarello then explained that the mitigation was filed to request that the judge reduce his sentence from seven to five years. Mr. Zuccarello testified that "[n]one of these detectives were there to speak on my behalf at the time of sentencing" (R. 1420). Mr. Zuccarello indicated that his testimony at Mr. Rivera’s trial would have no bearing on whether his sentence was reduced (R. 1419).

6. After having been sentenced to seven years on March 13, 1987, Mr. Zuccarello’s motion to mitigate was granted on May 12, 1987. The sentence was reduced to five years and a three year mandatory minimum was deleted.

7. In 1995, Mr. Rivera amended his initial Rule 3.850 motion to include a Claim XXI. In this claim, Mr. Rivera pled:

6. At trial, one of the State’s key witnesses was Frank Zuccarello, a professional informant. Mr. Zuccarello testified many times previously in exchange for lenient or favorable treatment.

7. Despite Mr. Zuccarello’s history of making deals with the State, he testified that the State had made no promises to him and there was no deal (R. 1407, 1410).

8. However, the State had written several letters in an effort to secure lenient treatment for Mr. Zuccarello. (See Appendix B). Further, the State made no attempt to correct Mr. Zuccarello’s apparently misleading testimony.

Amended Motion at 257.

8. At the subsequent evidentiary hearing, the State called Mr. Rivera’s trial prosecutor, Kelly Hancock, to testify on May 10, 1995. During the direct examination of Mr. Hancock by Assistant State Attorney Susan Bailey, the following testimony was presented:

Q. Okay. Mr. Hancock, I would like to ask you about the testimony of Frank Zuccarello on the witness stand. If you need to refresh your recollection, I’ll be more than happy - -

A. Okay.

Q. But do you recall asking Frank Zuccarello in your direct examination if the state had made any promises to him whatsoever regarding his testimony on behalf of the state against Michael Rivera?

A. Absolutely, I asked him that question.

Q. And do you recall what his response was?

A. He said that we had offered him nothing to testify.

Q. Okay. In fact, did you offer Mr. Zuccarello any promises or anything in return for his testimony?

A. Offered him nothing.

(PC-R. 686). During cross examination, Mr. Hancock testified:

Q. You never made him any promises?

A. I never made him any promises. In fact, he was - - my recollection, he was more than willing to come and testify against Mr. Rivera.

* * *

Q. Are you aware of anyone else on the prosecutor’s team or the police or involved with the state in Mr. Rivera’s case promising these individuals anything?

A. No, and I think I asked everyone that testified in court if they were promised anything when they - when they testified, if we had promised them anything, and my recollection is everyone said no, that the state had not promised them anything.

I cannot tell you with the detectives because I wasn’t there. But my understanding from talking to the detectives was that they were not promised anything either.

Q. And no one on the prosecutor’s team promised them anything?

No. I was on the prosecution’s team, I mean, I was the one that tried the case, I don’t recall that there was another prosecutor there to assist me. So, the answer’s no, I didn’t promise them anything.

(PC-R. 686, 694-95). In the State’s closing memorandum, the State sought to have the claim denied upon the basis of Hancock’s testimony; "Hancock testified that Zuccarello did not receive any deal for his testimony." State’s Memorandum dated 6/1/95 at 11. And on the basis of Hancock’s testimony and the representations made by the State that there was no deal for Zuccarello’s testimony, Mr. Rivera’s claim was denied.

9. However, undersigned counsel has recently learned that in fact Mr. Zuccarello received a deal from the State, a deal that the State did not disclose at trial or during the post-conviction proceedings. When Mr. Zuccarello pled to the numerous pending charges against him on June 12, 1986, it was pursuant to an undisclosed plea offer from the Broward County State Attorney’s Office. The "Plea Offer: Frank Zuccarello" provided:

I. The Defendant will enter an [sic] plea to the following charges:

Case 85-4911CF, Aggravated Assault, violation

of Community Control

Case 86-3288CF, Kidnapping while Armed (Life

Felony), one count; Burglary while Armed (First Degree PBL Felony), one count; Armed Robbery (First Degree BPL Felony), three Counts.

Case 86-3602CF, Forgery (Third Degree Felony), two

counts; the two Misdemeanor Theft charges will be dropped.

Case 86-3841CF, Possession of Cocaine (Third

Degree Felony), one count.

The pleas will be with a CAP, or maximum period of incarceration of Fifteen (15) Years in prison. The State does reserve the right to request a period of PROBATION to run consecutive to the incarceration; there will be a CAP, or maximum period of probation requested, of TEN (10) years.

II. The Broward County cases, as outlined above, will run CONCURRENT with the charge(s) the defendant will be pleading to in Dade County.

III. In return for the considerations show above, the defendant will continue to cooperate with: Florida Department of Law Enforcement (lead agant: Steve Emerson); Broward Sheriff’s Office (detectives Presley, Argentine, Sgt. Carney); Ft. Lauderdale Police Department (detective Potts); ASA’s Lazarus and Pyers, and their investigators; and other law enforcement offices.

The defendant will, in his cooperation, be giving statements, which will be tested by polygraph as to their veracity; the defendant will further agree to testify at all proceedings in which he is subpoenaed and the defendant will testify honestly.

IV. In return for the above consideration, the defendant will not be charged with any additional cases in Broward county in which he may have participated, EXCEPT: any cases in which injuries to any person resulted will be examined on a case-by-case basis, and a filing decision made accordingly. Any participation in any HOMICIDE case will be handled separate and apart from this agreement, by Assistant State Attorneys in the Homicide division.

V. Frank Zuccarello will forfeit and surrender all proceeds from his criminal activity to Florida Department of Law Enforcement. While the exact amount is undetermined at this time, it is believed that such sum will be in excess of Two Hundred and Fifty Thousand Dollars ($250,000). The dollar amount will be submitted to the State by the defendant, and a polygraph will be run to determine the truthfullness of the amount. This forfeiture will be made prior to any sentence imposed by the Court. Victim restitution, in those situations where vicitms are identified, will receive first priority.

VI. At time of sentencing, it will be requested by the State such proceedings be held in chambers, at which time the State will bring forward all law enforcement personnel familiar with the cases and the efforts of the defendant for the Court’s consideration in sentencing.

(Attachment A)(emphasis added).

10. This plea agreement was not disclosed at the time of trial or in the numerous collateral proceedings in Mr. Rivera’s case. In fact, the State has affirmatively represented throughout the history of this case that a plea agreement did not exist. Undersigned counsel recently discovered the undisclosed plea agreement through his work on an unrelated case im Miami-Dade County. Undersigned counsel was hired to work on behalf of a capital defendant who was convicted and sentence to death in Miami. In mid-2002, undersigned counsel participated in an evidentiary hearing in that case. In preparation for the examination of the trial prosecutor, undersigned counsel had a discussion with a Miami criminal defense attorney, and learned that she had collected a file regarding the same Miami prosecutor in connection with a capital case that she had handled. She gave the file to undersigned counsel to use to prepare for his examination of the prosecutor at the mid-2002 evidentiary hearing. When reviewing the materials, undersigned counsel noticed that the file contained many documents concerning Frank Zuccarello’s testimony at a Miami murder trial. Since those materials did not relate to the case for which undersigned counsel was preparing, he set those documents aside to be reviewed at another time. While preparing for Mr. Rivera’s oral argument in April of 2003, undersigned counsel went through those materials concerning Mr. Zuccarello and his testimony in the Miami murder trial. In those materials, undersigned counsel discovered among other items a copy of the "Plea Offer: Frank Zuccarello." Undersigned counsel had never seen this "Plea Offer" before. Nor has his subsequent review found any evidence of its previous disclosure. In fact, Mr. Hancock’s testimony in 1995 and the State’s closing memorandum at the conclusion of the evidentiary hearing reiterated the State’s position that such an agreement did not exist.

11. Further examination of the materials obtained from the Miami criminal defense attorney revealed a number of "Prisoner Receipts" from the Broward County Jail. These "Prisoner Receipts" included one dated April 17, 1986, showing that "Dep. Nick Argentine" received custody of "Frank Zuccarello" "at 1010 hrs" and returned him to the jail "at 1530 hrs". Another receipt showed that "Det. Phil Amabile" received "Frank Zuccarello" on July 17, 1986 at "1020" and returned him at "1425". Two other "Prisoner Receipts" that were included in the material received from the Miami criminal defense attorney indicated that "G. Nelson with Metro Dade" along with "agents from BSO" that included "Chris Presley" received custody of "Frank Zuccarello" on April 1, 1986, at "1425" and returned him at "2210". The other receipt showed that Detective Potts with the Fort Lauderdale Police Department received custody of Frank Zuccarello on April 4, 1986 at "1200" and returned him at "2155".

12. Undersigned counsel also discovered in the materials received from the Miami criminal defense attorney a document entitled, "Synopsis of conversation with FRANK ZUCCARELLO on Friday, April 4, 1986." The body of this "Synopsis" included:

On Friday, April 4, 1986, one FRANK ZUCCARELLO (hereinafter referred to as the CI for the sake of brevity) was interviewed by this writer, Det. Joseph Gross, and Sgt. J. Wander, Det. W.R. Baker, and Det. J. Mcdermott about an organized group that has committed a large number of home invasion robberies (HIR hereinafter).

The first portion of the conversation was held in the robbery office and the second portion of the conversation was held on locations as the CI pointed out various locations involved in the activity. Parts of the conversation while on location were recorded without the knowledge of the CI. Specifically, approximately the first forty-five minutes of the conversation and the forty-five minutes beginning at about 7:20 PM are recorded.

The CI is currently incarcerated in the Broward County jail on charges stemming from a HIR. He has no arrangement regarding those charges at this time.

The CI states that in about September of 1985 he became involved in committing HIR with the herein detailed group of individuals. He had personal knowledge of the crimes described either as a participant or from conversations with group members.

The CI candidly admits he has not told investigators everything he knows and is holding back some information until he sees how events are shaping up. In addition yo the crimes herein detailed the CI is compiling a list of other crimes committed and states that he already has a list of of about 25 HIR in the Hollywood area compiled. He is also working on a Dade County list.

The CI is also speaking to BSO Det. Chris Presley regarding his Broward County activities but claims that he is only giving general information and not specifics. Det. George Nelson of this Unit has been in contact with Det. Presley regarding this group.

(Emphasis Added). This "Synopsis" also detailed 28 "Home Invasion robberies" that "the CI" had discussed in Dade and Broward Counties. Thereafter, four "Possible Homicide Related Information" provided by the CI was set forth, and then six crimes provided by the CI were listed as "Misc. Criminal Activity". According to this "Synopsis," Mr. Zuccarello was working as a confidential informant for Dade and Broward law enforcement by April 4, 1986, before he met Mr. Rivera and before he reported any alleged statements by Mr. Rivera to "Nick Argentine."

13. Another document entitled, "April 18, 1986, Interview with Frank Zuccarello" written by "Det. Joseph Gross" of the Metro Dade Police Department was also found in the materials received from the Miami criminal defense attorney. This report contained a paragraph stating:

CI states that he has given a statement and passed a polygraph on an unsolved BSO homicide. The case occurred years ago. The victim was found in a car on Hallendale Beach Blvd. Between Sweeney’s Pub and the Casey’s Nickelodeon. Tommy Lamberti/Joslin and his father were responsible for it. The victim had caused some problems to them by making mistakes in a credit card scam they were all involved in together. The polygraph also contained a question about the Cohen homicide.

14. These documents support and corroborate the information contained in the "Plea Offer: Frank Zuccarello." They establish that Mr. Zuccarello was working as a confidential informant for law enforcement in Dade and Broward Counties by April 4, 1986. Clearly, he was a State agent during his incarceration in the Broward County Jail in April through June of 1986. Clearly, he was receiving considerable consideration for his "assistance," contrary to his testimony at Mr. Rivera’s capital trial, contrary to the testimony of the trial prosecutor in 1995, and contrary to the representations made by the State in its closing memorandum seeking denial of post-conviction relief in 1995.

15. Mr. Rivera is presenting this claim timely. The State did not disclose the plea agreement. At trial and at the 1995 evidentiary hearing, false testimony was presented and the State asserted that there was no deal. Mr. Rivera’s undersigned counsel discovered the documents while reading materials gathered regarding a Miami prosecutor and read the documents while preparing for the April, 2003, oral argument in the Florida Supreme Court. The claim is presented in this amendment that the court scheduled to include all new claims arising from new evidence discovered and developed since jurisdiction was returned to this Court.

16. The State deliberately misled and deceived Mr. Rivera’s trial counsel, the jury, and this Court. The deception affirmatively occurred at trial and at the 1995 evidentiary hearing. This deliberate deception violated Mr. Rivera’s right to due process. Under Guzman v. State, it is the State’s burden to prove this due process violation harmless beyond a reasonable doubt. Under the facts here, the State cannot meet this burden. Relief 3.850 relief must issue. Mr. Rivera’s conviction and sentence of death must be vacated and a new trial ordered.

CLAIM II

MR. RIVERA WAS DEPRIVED OF HIS RIGHTS TO DUE PROCESS UNDER THE FOURTEENTH AMENDMENT AS WELL AS HIS RIGHTS UNDER THE FIFTH, SIXTH, AND EIGHTH AMENDMENTS, BECAUSE EITHER THE STATE FAILED TO DISCLOSE EVIDENCE WHICH WAS MATERIAL AND EXCULPATORY IN NATURE AND/OR PRESENTED MISLEADING EVIDENCE AND/OR DEFENSE COUNSEL UNREASONABLY FAILED TO DISCOVER AND PRESENT EXCULPATORY EVIDENCE, AND/OR NEW EVIDENCE ESTABLISHES MANIFEST INJUSTICE.

This claim is evidenced by the following:

1. All other allegations and factual matters contained elsewhere in this and any prior motions are fully incorporated herein by specific reference.

2. The United States 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.

Strickland v. Washington, 466 U.S. 668, 685 (1984). In order to insure that an adversarial testing, and hence a fair trial, occur, certain obligations are imposed upon both the prosecutor and defense counsel. 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). 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 either or both fail in their obligations, a new trial is required if confidence is undermined in the outcome. Smith v. Wainwright, 799 F.2d 1442 (11th Cir. 1986).

3. Here, Mr. Rivera was denied a reliable adversarial testing. In order "to ensure that a miscarriage of justice [did] not occur," Bagley, 473 U.S. at 675, it was essential for the jury to hear this evidence. Here, confidence must be undermined in the outcome since the jury did not hear the evidence. Rogers v. State, 782 So.2d 373 (Fla. 2001). Though error may arise from individual instances of nondisclosure and/or deficient performance, proper constitutional analysis requires consideration of the cumulative effect of the individual nondisclosures in order to insure that the criminal defendant receives "a fair trial, understood as a trial resulting in a verdict worthy of confidence." Kyles, 514 U.S. at 434. The proper analysis cannot be conducted when suppression of exculpatory evidence continues or when, despite due diligence, the evidence of the prejudicial effect of the nondisclosure does not surface until later. The analysis must be conducted when all of the exculpatory evidence which the jury did not know becomes known.

4. Undersigned counsel has recently discovered a wealth of favorable evidence that was in the State’s possession, but that the State withheld from Mr. Rivera’s counsel. This evidence that was not disclosed by the State includes a plea offer to Frank Zuccarello from the Broward County State Attorney’s Office. The "Plea Offer: Frank Zuccarello" provided:

I. The Defendant will enter an [sic] plea to the following charges:

Case 85-4911CF, Aggravated Assault, violation

of Community Control

Case 86-3288CF, Kidnapping while Armed (Life

Felony), one count; Burglary while Armed (First Degree PBL Felony), one count; Armed Robbery (First Degree BPL Felony), three Counts.

Case 86-3602CF, Forgery (Third Degree Felony), two

counts; the two Misdemeanor Theft charges will be dropped.

Case 86-3841CF, Possession of Cocaine (Third

Degree Felony), one count.

The pleas will be with a CAP, or maximum period of incarceration of Fifteen (15) Years in prison. The State does reserve the right to request a period of PROBATION to run consecutive to the incarceration; there will be a CAP, or maximum period of probation requested, of TEN (10) years.

II. The Broward County cases, as outlined above, will run CONCURRENT with the charge(s) the defendant will be pleading to in Dade County.

III. In return for the considerations show above, the defendant will continue to cooperate with: Florida Department of Law Enforcement (lead agant: Steve Emerson); Broward Sheriff’s Office (detectives Presley, Argentine, Sgt. Carney); Ft. Lauderdale Police Department (detective Potts); ASA’s Lazarus and Pyers, and their investigators; and other law enforcement offices.

The defendant will, in his cooperation, be giving statements, which will be tested by polygraph as to their veracity; the defendant will further agree to testify at all proceedings in which he is subpoenaed and the defendant will testify honestly.

IV. In return for the above consideration, the defendant will not be charged with any additional cases in Broward county in which he may have participated, EXCEPT: any cases in which injuries to any person resulted will be examined on a case-by-case basis, and a filing decision made accordingly. Any participation in any HOMICIDE case will be handled separate and apart from this agreement, by Assistant State Attorneys in the Homicide division.

V. Frank Zuccarello will forfeit and surrender all proceeds from his criminal activity to Florida Department of Law Enforcement. While the exact amount is undetermined at this time, it is believed that such sum will be in excess of Two Hundred and Fifty Thousand Dollars ($250,000). The dollar amount will be submitted to the State by the defendant, and a polygraph will be run to determine the truthfullness of the amount. This forfeiture will be made prior to any sentence imposed by the Court. Victim restitution, in those situations where vicitms are identified, will receive first priority.

VI. At time of sentencing, it will be requested by the State such proceedings be held in chambers, at which time the State will bring forward all law enforcement personnel familiar with the cases and the efforts of the defendant for the Court’s consideration in sentencing.

(Attachment A)(emphasis added). This plea agreement was not disclosed at the time of trial or in the numerous collateral proceedings in Mr. Rivera’s case.

5. The State also did not disclose a number of "Prisoner Receipts" from the Broward County Jail. These "Prisoner Receipts" included one dated April 17, 1986, showing that "Dep. Nick Argentine" received custody of "Frank Zuccarello" "at 1010 hrs" and returned him to the jail "at 1530 hrs". Another receipt showed that "Det. Phil Amabile" received "Frank Zuccarello" on July 17, 1986 at "1020" and returned him at "1425". Two other "Prisoner Receipts" indicated that "G. Nelson with Metro Dade" along with "agents from BSO" that included "Chris Presley" received custody of "Frank Zuccarello" on April 1, 1986, at "1425" and returned him at "2210". The other receipt showed that Detective Potts with the Fort Lauderdale Police Department received custody of Frank Zuccarello on April 4, 1986 at "1200" and returned him at "2155".

6. Also undisclosed was a document written by Miami law enforcement entitled, "Synopsis of conversation with FRANK ZUCCARELLO on Friday, April 4, 1986." The body of this "Synopsis" included:

On Friday, April 4, 1986, one FRANK ZUCCARELLO (hereinafter referred to as the CI for the sake of brevity) was interviewed by this writer, Det. Joseph Gross, and Sgt. J. Wander, Det. W.R. Baker, and Det. J. Mcdermott about an organized group that has committed a large number of home invasion robberies (HIR hereinafter).

The first portion of the conversation was held in the robbery office and the second portion of the conversation was held on locations as the CI pointed out various locations involved in the activity. Parts of the conversation while on location were recorded without the knowledge of the CI. Specifically, approximately the first forty-five minutes of the conversation and the forty-five minutes beginning at about 7:20 PM are recorded.

The CI is currently incarcerated in the Broward County jail on charges stemming from a HIR. He has no arrangement regarding those charges at this time.

The CI states that in about September of 1985 he became involved in committing HIR with the herein detailed group of individuals. He had personal knowledge of the crimes described either as a participant or from conversations with group members.

The CI candidly admits he has not told investigators everything he knows and is holding back some information until he sees how events are shaping up. In addition yo the crimes herein detailed the CI is compiling a list of other crimes committed and states that he already has a list of of about 25 HIR in the Hollywood area compiled. He is also working on a Dade County list.

The CI is also speaking to BSO Det. Chris Presley regarding his Broward County activities but claims that he is only giving general information and not specifics. Det. George Nelson of this Unit has been in contact with Det. Presley regarding this group.

(Emphasis Added). This "Synopsis" also detailed 28 "Home Invasion robberies" that "the CI" had discussed in Dade and Broward Counties. Thereafter, four "Possible Homicide Related Information" provided by the CI was set forth, and then six crimes provided by the CI were listed as "Misc. Criminal Activity". According to this "Synopsis," Mr. Zuccarello was working as a confidential informant for Dade and Broward law enforcement by April 4, 1986, before he met Mr. Rivera and before he reported any alleged statements by Mr. Rivera to "Nick Argentine."

7. Another withheld document entitled, "April 18, 1986, Interview with Frank Zuccarello" and written by "Det. Joseph Gross" of the Metro Dade Police Department also referred to Zuccarello as a "CI." This report was found in the materials received from the Miami criminal defense attorney. This report contained a paragraph stating:

CI states that he has given a statement and passed a polygraph on an unsolved BSO homicide. The case occurred years ago. The victim was found in a car on Hallendale Beach Blvd. Between Sweeney’s Pub and the Casey’s Nickelodeon. Tommy Lamberti/Joslin and his father were responsible for it. The victim had caused some problems to them by making mistakes in a credit card scam they were all involved in together. The polygraph also contained a question about the Cohen homicide.

8. These documents would have been beneficial to trial counsel in 1987 and to collateral counsel in 1995. They establish that Mr. Zuccarello was working as a confidential informant for law enforcement in the Dade and Broward Counties by April 4, 1986. Clearly, he was a State agent during his incarceration in the Broward County Jail in April through June of 1986. Clearly, he was receiving considerable consideration for his "assistance," contrary to his testimony at Mr. Rivera’s capital trial, contrary to the testimony of the trial prosecutor in 1995, and contrary to the representations made by the State in its closing memorandum seeking denial of post-conviction relief in 1995. This undisclosed information impeaches not just Mr. Zuccarello, but also law enforcement’s investigation and conduct throughout this case.

9. Another recently discovered document is a confidential memo dated June 24, 1986, from Robert Rios to Sgt. Steve Vinson of the Miami Police Department. This memo reports that on June 21, 1986, a polygraph examination was administered to Frank Zuccarello regarding his version of a Miami homicide. In the course of the examination, Rios found repeated attempts at deception.

10. Another recently discovered document is a portion of a Miami Police Department Report that indicated that on June 7, 1986, Frank Zuccarello was interviewed and polygraphed about the Miami homicide. The polygraph was conducted by Det. Ilhardt who concluded that Zuccarello "showed deception in all areas regarding the information he gave us regarding the Cohen homicide." Thereupon, Bruce Raticoff, who was present when the interview and polygraph examination occurred, was advised that deception had been shown. The police asked Mr. Raticoff for an opportunity to speak to Mr. Zuccarello to try to obtain all the information that Zuccarello knew about the Cohen homicide. "Mr. Raticoff said he would also talk to his client and attempt to iron out any inconsistencies that might arise."

11. Another recently discovered document is a July 28, 1987 memorandum from Cpl. Iglesias of the Dade County Jail. This memo concerned whether Frank Zuccarello should receive gain time. The memo had attached four incident reports concerning Zuccarello’s conduct in jail. Cpl. Iglesias stated:

To put it simply Zuccarello is completely immature, a person who throws temper tantrums when he doesn’t get his way. He is one of the most disrespectful inmates I have ever had contact with, to both officers and other inmates. He is always sarcastic, constantly cusses at officers and is laways threatening to call the state attorney handling his case whenever he doesn’t get his way. Unfortunately he seems to be right for on many occasions the state attorney calls up asking that nothing happen to Zuccarello, the man seems to be above the inside as well as outside the jail. Armed with this knowledge Zuccarello becomes so obnoxious that on several occasions Zuccarello has had to be placed in isolation to protect from the other special inmates.

It is my sincere opinion that Zuccarello does not deserve one single minute of gain time. The man has no regard nor remorse whatsoever for his actions. He has no respect of any kind for the people around him.

12. Attached to this memo were incident reports from before Mr. Rivera’s 1987 trial. One incident subject to these reports occurred in February of 1987 when Zuccarello announced he was on a hunger strike until the jail moved him from "a safety cell by himself" back to a cell nearby housing a number of individuals. Zuccarello "was moved from there per Sgt. Smith in an effort to regain better control of the East Wing safety cell inmates which Zuccarello continually incites."

13. Also attached to the July, 1987, memo was a six-page incident report from October of 1986. This incident arose over a visitor’s effort to leave Zuccarello a radio. When informed that no approval for this could be found:

Zuccarello exploded into what best can be described as a temper-tantrum. He began cussing out loud at all the officers around him, calling everybody "assholes," "motherfuckers," and numerous other cusswords, saying he was tired of being "fucked with," that he would see to it that this would be "taken care of." This was in the presence of this reporter [Iglesias], Off’s Rosales, Pollard and O’Neal, and other inmates.

14. These previously undisclosed documents contain information that would have been favorable to Mr. Rivera at his trial. In evaluating the prejudice flowing from the failure to disclose these documents and the information contained therein, a cumulative analysis must be undertaken. This cumulative analysis requires cumulative consideration of not only these documents, but also other favorable or exculpatory information that did not reach the jury because it either was not disclosed by the State, was unreasonably not discovered by the defense, or is new evidence that neither the State nor the defense knew about at the time of trial. State v. Gunsby, 670 So. 2d 920, 923-924 (Fla. 1996). When the proper cumulative analysis is conducted, it is clear that confidence is undermined in the reliability of the outcome and that a new trial is warranted.

15. As of October 1, 1998, new evidence was discovered by counsel for Mr. Rivera regarding Frank Zuccarello. At trial, Zuccarello testified that Mr. Rivera and himself shared the same investigator, Detective Tom Eastwood (R. at 1402); that Mr. Rivera told Zuccarello he had choked Jazvac to death (R. at 1404); that Mr. Rivera told Zuccarello he planned to fondle and molest Jazvac (R. at 1404, 1405); that Mr. Rivera told Zuccarello that he liked little girls (R. at 1404); and, that Mr. Rivera placed the body in a rock pit two miles from his home in Coral Springs (R. at 1405).

16. Based on an article printed in the Miami Herald on Thursday, October 1, 1998, and subsequent investigation stemming from the discovery of that article, it has become apparent that not only was Frank Zuccarello used as a snitch in numerous cases in Dade and Broward County, but that his testimony in at least two cases was untruthful. (See Exhibit C, Amy Driscoll, 12-year-old murder case may go back to court, Miami Herald, Oct. 1, 1998, §B at 4; Exhibit D, Art Harris, The Imperfect Murder, The New Times (Miami), Dec. 17-23, 1998 at 28; Exhibit E, Art Harris, Ending may still be rewritten in 1986 Cohen murder case, Miami Herald, May 16, 1999, §L at 1.)

17. One case in which Frank Zuccarello was untruthful, and about which the attached Miami Herald articles pertain to, is the 1986 murder of Stanley Cohen in Dade County. According to the article, Channel 10 news reporter Gail Bright, who was covering the Cohen murder in the late 1980's, has come forward and stated that Metro-Dade Police Detective Jon Spears told her that "the star witness in the case lied to convict Cohen’s wife, Joyce, of hiring three hit men to kill her millionaire husband." Amy Driscoll, 12-year-old murder case may go back to court, Miami Herald, Oct. 1, 1998, §B at 4. The star witness for the State in the Cohen case was Frank Zuccarello.

18. Stanley Cohen was murdered on March 7, 1986. Coincidently, Zuccarello was arrested by Fort Lauderdale Police just four days after the Cohen murder, for an entirely unrelated string of home invasion robberies in Broward County. By April 4^th, Zuccarello began cooperating with the State, giving up the names of numerous individuals responsible for at least 29 home-invasion robberies in Dade and Broward County. Two of the names given up by Zuccarello were Anthony Caracciolo and Tommy Joslin. In addition to this information, Zuccarello began talking about two murders; one was the Cohen murder, and the other was the murder of a man by the name of Charles Hodek in Broward County.

19. While talking to police, Zuccarello identified Joyce Cohen’s photograph and stated he had seen her during a meeting between her and Anthony Caracciolo in Coconut Grove, Florida. Zuccarello told police that he, Caracciolo and Joslin were hired by Joyce Cohen to murder her husband and make it look like a robbery. Zuccarello than informed the police that he drove his pals to the Cohen house the night of the murder. Miami police polygraphed Zuccarello three times about the details of the murder, and all three times he failed. Florida Department of Law Enforcement Agent Steve Emerson was brought on to the case for the purpose of corroborating Zuccarello’s statements through his co-defendants but was never able to do so.

20. Now, ten years later and after news Reporter Gail Bright came forward in 1998, Zuccarello acknowledges there may be untruthfulness to his testimony. After learning of the information provided by Gail Bright, attorney Alan Ross, counsel for Joyce Cohen, sent private investigator Eric Zeid to talk to Zuccarello. Zeid told Zuccarello, "It’s about karma, doing the right thing." Zuccarello replied, "If I did the right thing, I'd piss off a lot of people down there." Art Harris, The Imperfect Murder, The New Times (Miami), Dec. 17-23, 1998 at 28.

21. Zuccarello has also admitted that the information he originally gave Captain Tony Fantigrassi, Broward Sheriff’s Office, in the Charles Hodek murder was false. In 1986, during the same time Metro-Dade Police were questioning Zuccarello regarding the Cohen murder, Broward police questioned Zuccarello regarding the murder of Charles Hodek. In that murder, Zuccarello fingered Louis Lamberti, stating that Lamberti’s son, Tommy Joslin, told him that Lamberti instructed Joslin where to bring Hodek to be killed. However, soon thereafter, Tommy Joslin was arrested and provided information that he was present during the killing of Hodek, and that Richie DelGaudio was responsible for Hodek’s death. Captain Tony Fantigrassi was able to corroborate all the facts given by Joslin. As a result, Captain Fantigrassi confronted Zuccarello on his statement that Lamberti was the shooter and Zuccarello admitted he lied. Zuccarello stated he always knew DelGaudio shot Hodek, but because he was afraid of DelGaudio, he gave up Lamberti instead. Art Harris, Ending may still be rewritten in 1986 Cohen murder case, Miami Herald, May 16, 1999, §L at 2.

22. Frank Zuccarello was a professional snitch. He gave police information in over 29 home-invasion robberies and more than two murder cases including the Staci Jazvac case. During 1986, Zuccarello was shuffled back and forth between Dade and Broward County for his testimony in all these cases. In addition, he received numerous favors from the Metro-Dade police and Dade County State Attorney’s Office including trips out of jail to his hair salon, to Dolphin training camp and football games, and to his girlfriend’s house so they could have sex.

23. Frank Zuccarello was himself charged with 23 felonies including kidnapping, armed robbery and aggravated assault. If convicted, he faced the rest of his life in prison. Yet, for all offenses committed in Dade and Broward counties, Zuccarello was sentenced to only five (5) years in state prison and received complete immunity in the Cohen case. Of the five years he was sentenced to, Zuccarello only served two (2) years, all of which was served in county jail.

24. Frank Zuccarello knew how to work the system to his advantage, and testifying to false information was his way out of life in prison. All of the information he testified to in Mr. Rivera’s case Zuccarello could have learned from other sources, including through his attorney who had prosecuted Mr. Rivera in 1980. Mr. Rivera’s case was highly publicized in 1986 when Zuccarello began giving information to the police. In fact, in his testimony at trial, Zuccarello admits that there was a picture of Staci Jazvac hanging at the Broward County Jail and he knew who Michael Rivera was before there was any contact between the two of them (R. at 1417). Zuccarello saw Michael Rivera and the Staci Jazvac case as one more case to ensure his freedom.

25. Without Frank Zuccarello, the State’s case was highly circumstantial. The only evidence presented was linked to a blue van which Mr. Rivera was supposedly driving at the time the victim was abducted. The State’s theory at trial was that Mr. Rivera used the van to abduct Jazvac and smothered her inside the van. However, as presented at Mr. Rivera’s evidentiary hearing in April 1995, Mark Peters, the owner of the van, had dropped Mr. Rivera off at his home no later than 6:30 p.m. Peters testified that he retained possession of the van. Therefore, Mr. Rivera was not in possession of the van after 6:30 p.m. and it was impossible for him to have committed the murder in the van. The State’s entire case, without the testimony of Zuccarello, hinged on the circumstantial evidence found in the van. Had the jury known the extent of Frank Zuccarello’s involvement with law enforcement, he would have had no credibility with the jury, thereby affecting the outcome at trial.

26. Had the State revealed the extent of Zuccarello’s involvement with law enforcement officials in Dade and Broward counties, Mr. Rivera’s trial counsel would have been able to cross-examine Zuccarello regarding the numerous favors he was receiving from Dade police and attack his motives for testifying. Zuccarello clearly knew if he gave information to the police, he would receive something in return. This is evident from his involvement in dozens of other cases. When the withheld evidence goes to the credibility of a state witness, the Sixth Amendment right to confront and cross-examine witnesses is violated. Chambers v. Mississippi, 419 U.S. 284 (1973).

27. Furthermore, had the State provided defense counsel with this impeachment evidence, it would have led defense counsel to other exculpatory evidence. If defense counsel had known that Zuccarello was being shuffled between Dade and Broward counties, taken to his hair salon, football games and his girlfriend’s house, defense counsel would have investigated and scrutinized Zuccarello’s visitation logs and logs of physical movement within the jail. This not only could have been used to impeach Zuccarello, but to determine if he was being used as a police agent. The Broward Sheriff’s Office and its officers and investigators were aware of Zuccarello’s willingness to testify against other suspects and defendants simply based on the numerous occassions he had been used for those purposes. Broward Sheriff's Office was the agency responsible for investigating the case against Mr. Rivera. In fact, as Zuccarello testified, Detective Tom Eastwood worked on both Zuccarello’s cases and Mr. Rivera’s case. It is highly likely that Broward Sheriff’s Office saw Zuccarello as an opportunity to obtain information from Mr. Rivera, thus placing Zuccarello in the same pod area as Mr. Rivera at the Broward County Jail.

28. Also, if this exculpatory information had been disclosed by the State, defense counsel would have had a clearer picture of the tactics and techniques of the State and of Zuccarello’s motives in testifying, which in turn would open the door to extensive investigation and impeachment of the other snitches and their motives. Peter Salerno, who also testified to Mr. Rivera’s alleged admissions, was also a professional snitch, testifying for the state and federal government numerous times. Each of the inmates who testified at trial--Zuccarello, Salerno, and William Moyer--knew the system and how to get what they wanted from the system. Also, while in jail the three inmates associated with each other and had ample opportunity to compare stories and/or concoct a scenario pertaining to the Staci Jazvac case based on news accounts and police information. The record shows that the testimony of all three jailhouse informants was similar.

29. On June 28, 2001, The New Times Broward-Palm Beach reported that prior to Mr. Rivera’s trial the Broward Sheriff’s Office "examined dark hairs found on Staci [Jazvac’s} corpse." Bob Norman, The New Times Broward-Palm Beach, A Single Hair, June 28, 2001. The same article further reported, "detectives suspected [the hairs] were from Rivera, who has black hair, but a test showed they didn’t match." Id. The reporter commented that those hairs still remain a mystery.

30. The dark hairs found with Staci Jazvac’s body were discussed in Detective Amabile’s affidavit of February 24, 1986, in support of a search warrant issued to obtain hair from Michael Rivera. Certainly, the source of hair found with the body was considered significant by law enforcement as indicated in the February 24, 1986, search warrant affidavit signed by Detective Amabile. He indicated that Michael Rivera’s hair was needed in order to facilitate hair comparison to determine if the hair found on Staci’s body matched Michael Rivera. The DNA testing has now occurred and indicated that Michael Rivera was not the source of most of these hairs and probably not the source of the other two hairs.

31. DNA testing has also been conducted on the hair introduced into evidence as having been found in Mark Peters’ van and identified by Howard Seiden as possibly being Staci Jazvac’s hair. Introduced into evidence at Mr. Rivera’s trial (State’s NNN for identification, item 11), this hair had been compared to another hair introduced into evidence, a known head hair from the victim, Staci Jazvac (State’s CCC for identification, State’s #58 in evidence). The comparison in 1986 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). The DNA testing in 2003 has now conclusively established that the hair introduced into evidence was not from Staci Jazvac.

32. Newspaper accounts of interviews with jurors regarding the new DNA results show that some doubt has been created by the DNA testing, with at least one juror indicating that she would vote to acquit.

D. DENIAL OF RIGHT TO COUNSEL

33. A Supplemental Report by Lt. R. Rios of the Broward County Sheriff’s Office dated 02/18/86 details that officer’s conversation with Mr. Rivera at 17:30 on Tuesday February 18, 1986:

At one point during our conversation he stated that he had an 8 pm appointment with a Mr. Peter Giacoma (Attorney), who may represent him in an upcoming case. As our conversation continued we spoke of...family problems to sexual problems, suicide and mental problems. During the time Mr. Rivera was talking about suicide, he stated that is he died he would return and enter his mother’s heart and explain to her all the problems he has had and then "I’ll explain about how the accident occurred." At this point he seemed to have caught himself and suddenly became very very angry. He started yelling and screaming "you can’t hold me here any longer, I want my Lawyer now." "This is the same bullshit as before." After a quiet period he seemed to settle down. He never again mentioned anything about the case unless he was asked a direct question by me.

34. This report was put into context by a recent article in The Miami Herald. The Herald reported that when Rivera was delivered to Rios for an interview on February 18, 1986, Detectives Scheff and Amabile told Rios that Mr. Rivera had waived his Miranda rights. However, when Mr. Rivera began to protest, Rios was convinced that Rivera had told the officers that he wanted to speak to an attorney. During an interview with the Herald, Robert Rios specifically stated, "I took it to mean that he was read his rights before, and he didn’t waive." Daniel de Vise, The Miami Herald, Conduct of Broward detective in another case is questioned, June 25, 2001. Rios also told the Herald reporter that although Rivera had signed a statement requesting an attorney earlier the same day, Scheff and Amabile never informed Rios of that statement. Id. Mr. Rivera was not aware of Robert Rios’ conclusions until June 25, 2001, the date the article was published.

35. Mr. Rivera was also deprived of his Sixth Amendment right to counsel when a confidential informant for the Broward Sheriff’s Office, Frank Zuccarello, was placed in his jail cell. The fact that Mr. Rivera was denied his right to counsel and right to remain silent is further corroborated by recent allegations of misconduct by several Broward Sheriff’s Officers, including Richard Scheff. The reported allegations involve cases in which persons arrested and charged with murder by the Sheriff’s Office were later determined to be innocent (including Frank Lee Smith, a man who had been condemned to die on death row, and Jerry Frank Townsend) or had their charges dismissed.

36. On or about March 19, 2001, Governor Bush ordered an investigation into whether Scheff lied under oath to keep an innocent man on death row. Scheff’s testimony was pivotal in discrediting a recanting eye-witness’s testimony in the Frank Lee Smith case (Broward County Case No. 85-004654CF10A). Based on Scheff’s allegedly false testimony, the court denied Smith post-conviction relief. After Frank Lee Smith died of cancer after sitting 14 years on death row, a DNA test proved his innocence.

37. On July 3, 2001, the agency investigating Scheff released its investigative report. The report makes clear that the focus of the investigation was to determine whether there was sufficient evidence that Captain Scheff knowingly gave false testimony to warrant criminal prosecution. While the state attorney determined that there was insufficient evidence to warrant criminal prosecution, he recognized that Scheff’s and Amabile’s testimony may have been based on incorrect or careless assumptions. The state attorney also recognized their testimony may have been based on sheer negligence.

38. In the Jerry Frank Townsend case, Broward Sheriff’s detectives obtained confessions from Townsend for five different murders in Broward County. In April 2001, the BSO crime lab completed DNA testing in all five cases and concluded that Townsend was innocent. He has since been released.

39. Captain Scheff and Detective Amabile have reportedly been the subject of internal affairs investigations, including investigations for employing improper interrogation techniques. See Keen v. State, 775 So. 2d 263 (Fla. 2000).

40. Mr. Rivera was not aware of any of this information at trial or during previous postconviction proceedings. All of the new information casts doubt on the credibility of the Broward Sheriff’s Office and specifically on those officers investigating Mr. Rivera’s case.

E. EITHER THE STATE FAILED TO DISCLOSE OR COUNSEL FAILED TO UNREASONABLY DISCOVER.

41. Mr. Rivera asserts that the State withheld this material and exculpatory evidence pertaining to Frank Zuccarello, key forensic evidence and the misconduct of the Broward Sheriff’s Office from defense counsel thereby depriving Mr. Rivera of his rights under the Fifth, Sixth, and Eighth Amendments in violation of Brady v. Maryland, 373 U.S. 83 (1963), Napue v. Illinois, 360 U. S 264 (1959), and Giglio v. United States, 405 U.S. 150 (1979). The prosecutor is required to reveal to defense counsel any and all information that is helpful to the defense, including impeachment evidence, whether that information relates to guilt/innocence or punishment, and regardless of whether defense counsel requests the specific information. United States v. Bagley, 473 U.S. 667 (1985). It is of no constitutional importance whether a prosecutor or a law enforcement officer is responsible for the misconduct. Williams v. Griswald, 743 F. 2d 1533 (11th Cir. 1984).

42. To the extent that the State now defends on an argument that trial counsel knew or should have known of the undisclosed and unpresented evidence, then trial counsel rendered ineffective assistance.

43. In Strickland v. Washington, 466 U.S. 668 (1984), the Supreme Court held that counsel has "a duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process." 466 U.S. at 668 (citation omitted).

44. Due to the circumstantial nature of the State’s case at trial, it was important for the defense to attack the credibility of the jailhouse informants and police officers that testified against Mr. Rivera. If trial counsel knew or should have known of information pertaining to the extent of the favors bestowed upon Zuccarello, but failed to cross-examine Zuccarello about those favors, then his performance was unreasonable. If reasonable investigation could have led to the information discussed in this motion, counsel’s failure to conduct reasonable investigation was deficient performance. The information about Zuccarello discussed herein would have led trial counsel to discover significant impeachment of Zuccarello and would have revealed prosecutorial and/or police misconduct. In turn, this would have led to impeachment regarding the two other informants testifying at trial. Information regarding Zuccarello’s participation in the Cohen and Hodek cases was valuable impeachment evidence not only of Zuccarello, but of law enforcement officers involved in this case.

45. To the extent that the State lays the blame for the fact that this impeachment was not presented because counsel failed to discover it, then trial counsel’s unreasonableness in failing to adequately cross-examine and impeach state witnesses at trial, failing to gather, test and present forensic evidence and failing to adequately investigate information of officer misconduct, was deficient performance that undermines confidence in the outcome of the trial.

F. CONFIDENCE UNDERMINED IN THE OUTCOME.

46. This Court must consider the cumulative effect of all the evidence not presented to the jury whether due to trial counsel’s ineffectiveness, the State’s misconduct, or because the evidence is newly discovered. Kyles v. Whitley, 514 U.S. 419 (1995); State v. Gunsby, 670 So. 2d 920 (Fla. 1994); Swafford v. State, 679 So. 2d 736 (Fla. 1996). The newly discovered evidence seriously calls into question the veracity of not only Zuccarello’s testimony, but also that of Salerno and Moyer, thereby destroying any credibility they may have had in front of the jury. Not only is the testimony of the snitches undermined, but so is the testimony of the Broward Sheriff’s Officers involved in the case, including Scheff, Amabile and Eastwood. Without this testimony, the State would be left with purely circumstantial evidence at best. DNA testing has now revealed that there was no physical evidence connecting Mr. Rivera to the victim. The hair in Mark Peters’ van was not from Staci Jazvac. The dark hairs found on the victim’s body were likely not from Michael Rivera. Although state witness Starr Peck testified that Mr. Rivera called her and while making an obscene phone call confessed to the crime, the details given by Mr. Rivera during the obscene phone call were completely inconsistent with the actual crime. For example, Mr. Rivera allegedly told Peck that Jazvac was wearing silky shorts (R. at 1089) and the body was disposed of by Lake Okeechobee (R. at 1090). In actuality the body was found in a field in Coral Springs, wearing a pair of blue jeans.

47. In Gunsby, the Florida Supreme Court explained that a new trial was required in 3.850 proceedings because of the cumulative effects of Brady violations, ineffective assistance, and/or newly discovered evidence of innocence:

Regarding the first issue, no question exists that Brady violations occurred when the State failed to disclose the criminal records of two key witnesses. The State argues, however, that the trial judge correctly determined that no reasonable probability existed that the outcome of Gunsby’s trial would have been different even had this evidence been presented. If this were the only guilt-phase issue having merit, we would be inclined to agree that the trial judge correctly decided this "close call." There were two eyewitnesses who positively identified Gunsby as the shooter and the Brady violations involved only one of those eyewitnesses. Additionally, at least three people overheard Gunsby make admissions concerning his commissions of the murder and the Brady violations involved only one of those individuals. When we consider this error in combination with the evidence set forth in the second issue, however, we cannot agree with the State's position.

* * *

Clearly, the evidence presented at the rule 3.850 hearing undermined the credibility of several key witnesses who testified at trial. For instance, the husband of one of the eyewitnesses testified she told him she could not see who shot the victim because the shooter was wearing a mask. Further testimony indicated that the eyewitness was romantically involved with one of the original suspects in the case. A third eyewitness, who did not testify at trial, also testified at the rule 3.850 hearing that the assailants were wearing pantyhose masks. A number of other inconsistencies existed between the testimony presented at the rule 3.850 hearing and the testimony presented at trial, which we do not address here.

We do find some merit in the State's argument that much of this evidence does not meet the test for newly discovered evidence. Newly discovered evidence is evidence that must have been unknown by the trial court, by the party, or by counsel at the time of trial, and it must appear that the defendant or his counsel could not have known of the evidence by the use of diligence. Jones v. State, 591 So. 2d 911, 916 (Fla. 1991). For a defendant to obtain relief based on newly discovered evidence, the evidence must be of such a nature that it would probably produce an acquittal on retrial. Id. at 915. In the face of due diligence on the part of Gunsby's counsel, it appears that at least some of the evidence presented at the rule 3.850 hearing was discoverable through diligence at the time of trial. To the extent, however, that Gunsby's counsel failed to discover this evidence, we find that his performance was deficient under the first prong of the test for ineffective assistance of counsel as set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)(to establish ineffective assistance of counsel, a defendant must show that (1) counsel performed outside the broad range of competent performance and (2) the deficient performance was so serious that the defendant was deprived of a fair trial). The second prong of Strickland poses the more difficult question of whether counsel's deficient performance, standing alone, deprived Gunsby of a fair trial. Nevertheless, when we consider the cumulative effect of the testimony presented at the rule 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.

State v. Gunsby, 670 So. 2d 920, 923-924 (Fla. 1996).

48. This Court must examine the newly discovered evidence claims presented in the instant pleading in conjunction with the State’s case at trial and the evidence proffered by Mr. Rivera in this and prior Rule 3.850 proceedings. This Court will find after examining all the evidence Mr. Rivera has presented through direct evidence, cross-examination and proffer throughout his capital proceedings, that this newly discovered evidence, along with evidence introduced in Mr. Rivera’s first Rule 3.850 motion and the evidence introduced at trial, would have produced a different result at trial.

49. Because the files and records do not conclusively establish that Mr. Rivera is entitled to no relief, this Court must grant an evidentiary hearing. Thereafter, this Court should grant a new trial and/or penalty phase.

MR. RIVERA WAS DENIED A FAIR TRIAL AND POSTCONVICTION PROCEEDING DUE TO JUDGE FERRIS’S BIAS AND PREDETERMINATION OF THE ISSUES CONTRARY TO THE SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS.

This claim is evidenced by the following:

2. Judge John G. Ferris has exhibited bias against Mr. Rivera and a predisposition to rule against him throughout the proceedings in this case. Five months before Mr. Rivera’s trial, on Friday, November 21, 1986, Judge Ferris was quoted as follows in the Sun Sentinel, page 8 B:

I believe this man has committed crimes many times in the past, and I believe he has resisted many attempts at rehabilitation, Ferris said. I don't think society should permit him to visit this conduct on anyone else.

3. Judge Ferris ruled against the defense and for the state repeatedly and summarily. Judge Ferris had at the very least a business relationship with the foreman of the jury, Robert Thornton. Judge Ferris had a close relationship with Sheriff Navarro. Judge Ferris refused to grant a mistrial or withdraw juror Thornton from the panel, once Mr. Thornton's close connections with the sheriff became known.

4. Judge Ferris presided over the jury trial of this capital case and ultimately imposed the sentence of death. However, prior to this trial, Judge Ferris had also presided over the trial of this same defendant in an unrelated case which resulted in Mr. Rivera’s convictions of attempted first degree murder, kidnapping, aggravated child abuse and aggravated battery. In the capital case, over Mr. Rivera’s objection, Judge Ferris admitted some limited testimony regarding the earlier case. However, Judge Ferris was aware of and actually considered evidence presented during the previous trial which was outside the record in the capital trial. In a letter written to Carolyn Tibbets in regard to the issue of clemency, Judge Ferris referred to the testimony of the previous trial as a reason he believed Mr. Rivera should die.

5. The bias exhibited by Judge Ferris at the time of trial led Mr. Rivera to request that he recuse himself. The request was denied (R. 1664).

6. On June 28, 2001, Mr. Rivera learned of new information that conclusively demonstrates judicial bias. Specifically, the New Times Broward-Palm Beach reported on that date additional statements of Judge Ferris which reflect his bias against Mr. Rivera at the time of trial.

7. In an interview with a New Times reporter, Judge Ferris stated that Mr. Rivera’s case was the most highly publicized of his career, and while he admitted he could not remember any particular thing that proved Mr. Rivera’s guilt, he "had great confidence in the prosecutor, Kelly Hancock." Bob Norman, A Single Hair, New Times Broward-Palm Beach, June 28, 2001. Judge Ferris’s confidence in the prosecutor was evidenced by his repeated rulings against the defense and for the State. While Ferris reported he wanted a fair trial for Mr. Rivera, he admitted his personal beliefs were not the same. Id. The fact that Judge Ferris had to strive to set aside his personal feelings could not be a clearer statement of bias or prejudice. In the same interview, Judge Ferris essentially conceded that he failed to consider all the evidence presented at trial when he admitted that Mr. Rivera’s phone calls to Starr Peck convinced him of Mr. Rivera’s guilt. Id.

8. Canon 3E, Fla. Code Jud. Conduct, and Rule 2.160, Fla. R. Jud. Admin., mandate that a judge disqualify himself in a proceeding "in which the judge’s impartiality might reasonably be questioned," including but not limited to instances where the judge has a personal bias or prejudice concerning a party, has personal knowledge of disputed evidentiary facts concerning the proceeding, or where the judge has been a material witness concerning the matter in controversy. Canon 3E(1)(a) & (b), Rule 2.140(d)(1) & (2).

9. Due process guaranteed Mr. Rivera the right to fair and impartial tribunal. By Judge Ferris’s own words, it is clear that Mr. Rivera did not receive what the constitution guaranteed. Instead, he had a judge who had an internal struggle going on, a struggle to set aside his personal feelings.

10. There was no way for Mr. Rivera to get inside Judge Ferris’s head to establish the bias or prejudice that resided there. It was not until Judge Ferris revealed that his personal feelings were biased against Mr. Rivera that proof of the deprivation of a constitutional right had occurred. This claim was raised in an amendment to the pending motion within months of the appearance of the newspaper account of Judge Ferris’s comments revealing his bias and prejudice. Judge Ferris’ bias permeated the trial, the sentencing and the post-conviction proceedings heard by Judge Ferris. Those proceedings must be vacated. Rule 3.850 relief is warranted.

This claim is evidenced by the following:

2. Mr. Rivera sought and obtained this Court’s permission to conduct DNA testing on the hair introduced into evidence. Introduced into evidence at Mr. Rivera’s trial (State’s NNN for identification, item 11), this hair had been compared to another hair introduced into evidence, a known head hair from the victim, Staci Jazvac (State’s CCC for identification, State’s #58 in evidence). The comparison in 1986 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). The DNA testing in 2003 has now conclusively established that the hair introduced into evidence was not from Staci Jazvac.

3. Mr. Rivera also sought and obtained this Court’s permission to conduct DNA testing on the dark hairs found with Staci Jazvac’s body which were discussed in Detective Amabile’s affidavit of February 24, 1986, in support of a search warrant issued to obtain hair from Michael Rivera. Certainly, the source of hair found with the body was considered significant by law enforcement as indicated in the February 24, 1986, search warrant affidavit signed by Detective Amabile. He indicated that Michael Rivera’s hair was needed in order to facilitate hair comparison to determine if the hair found on Staci’s body matched Michael Rivera. The DNA testing has now occurred and indicated that Michael Rivera was not the source of most of these hairs and probably not the source of the other two hairs.

4. The Florida Supreme Court recognized in Jones v. State, 591 So.2d 911 (Fla. 1991), that where neither the prosecutor nor the defense attorney violated their constitutional obligations in relationship to evidence the existence of which was unknown at trial, a new trial is warranted if the previously unknown evidence would probably have produced an acquittal had the evidence been known by the jury. Where such evidence of innocence would probably have produced a different result, a new trial is required.

5. The results of the DNA testing provide evidence that qualifies as newly discovered evidence which may be presented in a rule 3.850 motion. Had the jury known of this evidence it would have had a reasonable doubt regarding Mr. Rivera’s guilt. This is confirmed by the recent newspaper reporting the results of interviews with a number of Mr. Rivera’s jurors. One juror was definitive in her conclusion that the DNA testing created reasonable doubt. Two other jurors were uncertain of what outcome they would reach, but at a minimum their confidence in the guilty verdict they had returned was shaken.

6. But of course, as the Florida Supreme Court has made abundantly clear, the results of the DNA testing is not to be analyzed in a vacuum. The other exculpatory evidence that the jury did not hear should also be considered. When the wealth of unpresented favorable evidence that was presented in the prior Rule 3.850 proceedings is considered with the evidence contained in this amended motion, it is clear that a new trial required.

Mr. Rivera prays for the following relief, based on his prima facie allegations demonstrating violation of his constitutional rights:

1. That an evidentiary hearing be scheduled so as to allow him to present support for his claims, and that such a hearing be conducted at a reasonable time;

2. That he be allowed to proceed in forma pauperis;

3. That he be provided necessary funds with which to obtain expert witness and investigative services in order to properly present his claims, and without which no full and fair hearing can be conducted;

4. That he be allowed leave to supplement this motion should new claims, facts, or legal precedent become available to counsel; and, on the basis of the reasons presented herein,

5. That his convictions and sentences, including his sentence of death, be vacated.

I HEREBY CERTIFY that a true copy of the foregoing motion has been furnished to all counsel of record by U.S. Mail on the 20th day of January, 2004.

________________________

MARTIN J. MCCLAIN

Special Assistant CCRC

Florida Bar No. 0754773

Capital Collateral Regional

Counsel-South

101 NE 3^rd Ave., Ste. 400

Ft. Lauderdale, FL 33301

(954) 713-1284

Copies furnished to:

Honorable Paul L. Backman

Circuit Court Judge

Broward County Courthouse, Room 5780

Fort Lauderdale, FL 33132

Celia Terenzio

Assistant Attorney General

Attorney General's Office

1655 Palm Beach Lakes Blvd., Ste. 300

West Palm Beach, FL 33401

Susan Bailey

Assistant State Attorney

Broward County State Attorney's Office

675 Broward County Courthouse

Fort Lauderdale, FL 33301

STATE OF FLORIDA,

Plaintiff,

v.

MICHAEL RIVERA,

Defendant.

______________________/

VERIFICATION

STATE OF FLORIDA )

) ss.

COUNTY OF UNION )

Under the penalties of perjury, I , Michael Rivera, declare on this 16^th day of January, 2004, I have read the foregoing Motion To Vacate Judgment And Sentence Pursuant To Rule 3.850 and state upon personal knowledge, the facts stated in it are true and correct.

FURTHER AFFIANT SAYETH NAUGHT.

___________________________

Michael Rivera