ÿWPCL ûÿ2BJ|xÐÐÐ °°€ ÐÐ °°è˜ Ð Ã ÃIN THE CIRCUIT COURT OF THE THIRTEENTH JUDICIALÄ Ä Ã ÃCIRCUIT OF THE STATE OF FLORIDA, IN AND FORÄ Ä Ã ÃHILLSBOROUGH COUNTYÄ Ä Ã ÃCRIMINAL JUSTICE DIVISIONÄ Ä Ã ÃTHE STATE OF FLORIDAÄ Ä Ã Ãvs. CASE NO: 84-10538Ä Ä Ã Ã DIVISION: "AÄ Ä" à ÃWAYNE TOMPKINS,Ä Ä Ã Ã DefendantÄ Ä. ÃÃà Ã___________________________ÄÄ Ä Ä This cause came on to be heard before the à ÃHONORABLE DANIEL L. PERRYÄ Ä, Circuit Judge, at the Hillsborough County Courthouse Annex, Tampa, Florida, on April 17, 2001, as follows: à ÃVOLUME IIÄ Ä APPEARANCES: Sharon Vollrath, Assistant State Attorney, 800 E. Kennedy Blvd., Tampa, Florida 33602, in behalf of the State; Robert Landry, Scott Browne, Assistant Attorney General, Department of Legal Affairs, Westwood Building, 7th Floor, 2002 North Lois Avenue, Tampa, Florida 33607; in behalf of the State. Martin McClain and Suzanne Myers, CCR South, 101 NE 3d Avenue, Suite 400, Ft. Lauderdale, Florida 33301; in behalf of the defendant. COLLEEN MERRITT, OFFICIAL COURT REPORTER 800 EAST KENNEDY BLVD., COURTHOUSE ANNEX CA-1-124, TAMPA, FLORIDA 33602 ÃÃI N D E XÄÄ ÃÃPAGEÄÄ ÃÃLINEÄÄ PROCEEDINGS .............................. 134 1 CONCLUSION OF PROCEEDINGS ................ 176 23 CERTIFICATE OF REPORTER .................. 177 1 à ÃP-R-O-C-E-E-D-I-N-G-SÄ Ä THE COURT: Okay, yes, sir? MR. MCCLAIN: Martin McClain and I'm here today representing Mr. Wayne Tompkins. The spelling is M-C-C-L-A-I-N, with me is Suzanne Myers. Mr. Scher is actually having to do another evidentiary hearing over in Sanford with Judge Egan on Greg Mills' case and it's starting at exactly the same time so he's not available and he's not here today. THE COURT: Okay. MR. MCCLAIN: So I'll be handling matters today and we're ready to proceed if Your Honor is. I don't know if you want to hear from the State or how you want to proceed. THE COURT: The State ready? MS. VOLLRATH: Yes, Your Honor. THE COURT: All right, go ahead. MR. MCCLAIN: Um, Your Honor, I guess perhaps the place to start is let's start with something that we agree upon, the parties seem to agree upon. In their response to opposition for application for stay the State noted trial judges have the inherent authority to grant the stay of execution pending disposition of the post conviction motion when the defendant has demonstrated that he might be entitled to post conviction relief. In other words if the 3.850 that was filed warrants the evidentiary hearing Your Honor has the inherent authority to grant a stay of execution. I think both sides know the law and so given that is the law I think, I think it would turn into a 3.850 but the question becomes whether the files records constitutionally refute the allegations contained in the 3.850 and whether or not an evidentiary hearing is warranted. THE COURT: All right. MR. MCCLAIN: So turning to that let me start with I'm going to address claim one first. I just want to read that the Supreme Court of Florida in State v. Rogers recently said quote, "In order to comply with Brady therefore the individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in cases including the police and having learned of that favorable evidence they have a duty to disclose it." In this instance there is a wealth of favorable evidence that was just disclosed this past week. I know when the records were received from the repository and frankly I can only describe some documents as jaw dropping. Literally my jaw dropped when I saw that the police had a report describing Maureen Sweeney's statement and Mike Willis' statement indicating that the events of the day of Lisa DeCarr's disappearance are entirely different than how Barbara DeCarr testified and established that it couldn't have happened the way Kathy Stevens the convicted perjurer said. That it couldn't have happened the way Kenneth Turco the convicted extortioner said. So let me just sort of review a little bit about the case. I don't want to go into too much and Your Honor if I'm repeating what Your Honor already knows but I just want to cover it to remind the Court. I think it's not disputed that this case really rested upon the testimony of Barbara DeCarr, Kathy Stevens and Ken Turco. Barbara DeCarr in her testimony at trial she was the mother of Lisa DeCarr her testimony at trial was that she left the house at approximately nine a.m. and went to Wayne Tompkins' mother's house and that would be daily to help with packing and when she arrived at the house Wayne was there and had taken her youngest to school and he was at the house having breakfast. She indicated that then at some point in time she asked him to come back to the residence to get some newspapers to help pack dishes and that he left and then subsequently returned. And she said she wasn't really paying attention to how long he was gone. All she really knows is that she didn't go back to the house until three p.m. when she said Wayne comes and tells her that Lisa has run away. Now, the report regarding Maureen Sweeney indicates that in fact what happened was that Barbara and Wayne had been in one of their fights again and Barbara threw Wayne out of the house. That Lisa had been out that day obviously fully clothed and came into the house and saw Wayne sitting at the kitchen table. She then apparently screamed to her mother, what the hell is he doing here and was unhappy that the mother Barbara DeCarr was allowing Wayne to return to the house and a fight ensued and then Lisa DeCarr ran off leaving the house clothed. I point out it's clothed because again one of the, one of the claims at trial was that she had been wearing a bath robe that morning and that was the bath robe according to Barbara DeCarr that was found around her head. So if she in fact left wearing jeans and a maroon shirt as reported in the original police person report, um, that is inconsistent with Barbara DeCarr's testimony and inconsistent with Kathy Stevens' testimony and inconsistent with Ken Turco's testimony. Now, the interesting thing about this report is the report regarding that Maureen Sweeney is dated June 1984 and it would be after the body had been found and the report is obtained by Detective Milana and that is M-I-L-A-N-A and there doesn't seem to be any question, the State hasn't challenged the accuracy of the quote that I've put into the 3.850 regarding this report and I guess the State's position is that we should have known about this report sooner. Now, I want to point out that in the record on direct appeal at pages 504, 505, 506 and 507 is Mr. Benito's notice of discovery which he was obligated to file under the discovery rules. In there he listed individuals that he knew who were witnesses who had material information. Detective Milana and Maureen Sweeney and Mike Willis are not on this list. He then also listed in please find following police reports and he listed police reports that he was disclosing. And again this police report is not on that list and I would note for the record that then thereafter actually in the direct appeal quite a chunk it goes from page 508 to 586 so that's almost 80 pages of police reports that were placed in that court file closed before the trial. And any chance of these will reveal that the Maureen Sweeney and Mike Willis' statements are in the enclosed police reports. Now, in the prior 3.850 a question that Mr. Brown noted last week I was counsel in 1989 for Mr. Tompkins and I am very familiar perhaps more familiar with the record and have actually been on the case longer than anyone else in the courtroom. Um, there was a big issue made regarding a document that appears at 541 and 542 of the direct appeal and that was one of the police reports that was provided at pretrial in that police report concerning Wendy Chancey and it was at the heart of the 3.850 proceeding in 1989 because according to the police report Wendy Chancey observed Lisa DeCarr getting into a car, a brown Pinto on the afternoon of her disappearance and Wendy Chancey saw Lisa get into this car. And we made a big deal about it in 1989 because it's inconsistent again with Kathy Stevens' testimony and it is inconsistent with Kenny Turco's testimony and inconsistent with Barbara DeCarr's testimony because it would indicate that Lisa DeCarr was alive after she was dead. Emphatically the State's case was that Lisa DeCarr was murdered between nine and ten a.m. on March 24th and so we know Kenny sees her in the afternoon on March 24th getting into a brown Pinto. Obviously Mr. Tompkins didn't kill her as the State alleged in which the Bill of Particulars require and during the evidentiary hearing if you check the record there is discussions regarding this particular police report at page 35 through 38 of the transcript, 48 through 51 of the transcript, again 79 through 81 of the transcript, the April 7th transcript. I point that out because you will see that the copy that existed at that point in time no one, myself, Mike Benito or Judge Coe understood the significance of it because here, just a moment, because none of us understood or could read the front page well enough to understand this report indicating that Barbara DeCarr last saw Lisa according to the report between 1:30 and 2:00 p.m. on March 24th is completely contrary to what she testified to at trial. Contrary to Kathy Stevens the perjuror's testimony and Turco the extortionist's testimony. And I would note during the hearing, um, Mr. Benito in fact makes it clear that there was no indication from Barbara DeCarr that he could find of course he's under an obligation to disclose every applicable evidence and not to mislead the court there is no indication that Barbara DeCarr had seen Lisa after nine a.m. Now, we have received from the Tampa Police Department, um, I actually let me go ahead and provide the State and for the file this is, there is a copy of what appears in the ROA at pages 541, 542 it's a much more legible copy and in addition it's different because it has underneath or on a section on the front page under property it has written addresses and stuff that had not been on the version that was disclosed before or was in the court file. I just want to make it very clear that, that document wouldn't have been a legible copy. You can see the front page that lists Barbara DeCarr and in that code section next to her name appears c/p and above that it is has certain differentiations and you can see that "c" equals complainant and "p" equals parents. So then, Your Honor, the next page it now makes sense you can see when you look at the 3.850 transcript, no one understood this and no one figured it out because there was not a legible copy that complainant Barbara DeCarr stated she last saw Lisa at the listed residence at listed time and on the front page dated time occurred the listed time is March 24th, 1983, at 1330 to 1400 hours which translates into 1:30 or 2:00 so this report then when you take a look at this and you combine it with Maureen Sweeney's statement, Mike Willis' statement suddenly we understand what happened. We understand that Lisa DeCarr came home at that point in time and found Wayne Tompkins there and flew into a rage and ran away and that explains why Barbara DeCarr immediately contacted the police or within three hours because there had been this big fight and she was concerned. Now, I just also want to address apparently the State's position is that we did not ask for public records from the Tampa Police Department in 1989. And, you know, to an extent they're taking, they're making a factual dispute about this. Under the case law had the Florida Supreme Court requires an evidentiary hearing and I am prepared to testify we made the request and the request we got records and we didn't get this that Maureen Sweeney's report in 1989 and our investigator in 1989 is here in the courtroom and can testify to that as well, we didn't get that record in 1989 and I would have been screaming bloody murder in '89 had I had that record. Anybody had looked at the transcript and sees my discussions with Danny Hernandez who was on the witness stand about Judge Coe and Mike Benito about the Wendy Chancey and had I known that I would have been waving Maureen Sweeney and Mike Willis' statements around because it absolutely supported the claim, the whole thrust was that Wendy Chancey saw the victim after she was alive and their theory supports that. In addition I am relying on this report from the Missing Children's Home which indicated that a Donald Snell had spoken to the Detective Gullo and that Detective Gullo had told him that Barbara DeCarr had never ever in the years that he had been looking for Lisa DeCarr told him that Wayne Tompkins was the last person to see her. Barbara DeCarr's story only changed after Wayne was found out to be having an affair with another woman and was charged with rape and at that point in time Barbara DeCarr suddenly started saying to the police and to the missing children people that who had been looking for Lisa for over a year well, go back to the house, look at the yard and when they were getting reports back from the psych ward that she checked herself into that they hadn't found anything she kept getting more specific until finally the day the body was found on June 5th, 1984 the police called her and did not reveal that in fact they found something but asked for more information and obviously the officers were suspicious of her and she gave them more information. She said to look under the house where recently before nothing was found. Certainly the fact that Barbara DeCarr knew where to tell them to look for this skeleton is mighty suspicious and she was only able to divert attention from herself by claiming as she had not been before that Wayne Tompkins was the last person to see Lisa DeCarr alive when in fact according to the police report and according, she told Maureen Sweeney and according to what she told Mike Willis she was the last one to see Lisa DeCarr alive. She was having a fight with Lisa DeCarr. Now, we have together then now information that this police report was never previously disclosed. That Mike Benito had an obligation to discovery in 1989 and to disclose it in 1989, had an obligation to disclose it in 1984 and disclose it and an obligation in 1989, and the prosecutor preparing for this warrant and proceedings of last week had an obligation to look in the records and see that Maureen Sweeney and Mike Willis had told the police department a completely different version of what happened and one that completely refutes Kathy Stevens and Ken Turco the perjurer and extortionist and now they're trying to hide that obligation to disclose evidence that the defendant may be innocent and they're in a position they're hiding behind hindsight and saying well, they should have figured it out. They should have somehow known we had this. Well, the U.S. Supreme Court has already taken care of that in, um, recent Victor Green the U.S. Supreme Court made it clear that prior decisions from various courts including the Florida Supreme Court that there was some dissident obligation claim of Brady violation was not correct that in fact defendants have a right to assume that prosecutors will live up to their Brady obligations and they do not have an obligation to go around assuming that prosecutors are unscrupulous and liars. So in any event we did look. We made a public records request and it went undisclosed and it's huge. It's jaw dropping. Now, I also point out the law is very clear that when you do have something new the Florida Supreme Court made this clear in Lightmore v. State that you have to do a cumulative analysis and so Maureen Sweeney and Mike Willis' information has to be considered cumulatively with what has been presented before because, you know, Danny Hernandez testified that he didn't present Wendy Chancey because she didn't remember what she told the police. He doesn't now get this. But when you start having more corroboration you then change the analysis of what a defense attorney would do. You know, there is no doubt if Danny Hernandez had Maureen Sweeney and Mike Willis' statements he would have been screaming bloody murder because it disgraces the State's case. I mean I've done this a long time. I have never seen a piece of paper, Brady claim piece of paper that goes to the entirety of the State's case. This piece of paper indicates that the three witnesses upon which this conviction rests were lying. There is no other way around it. And it's not an accident that the State's response they say not one single word about the contents, about the substance of what Maureen Sweeney and Mike Willis have to say because there's nothing to say. Now, in addition we have the fact that apparently Detective Burke just knows Wayne Tompkins did the other murder. There is no other leads, no other charges filed against Wayne Tompkins and this Detective Burke believes that the same person committed both murders based upon his examination of the remains found in the graves with respect to these bodies. Both remains were identified solely upon the basis of a mother's description and of the problems with the teeth. There's no x-rays, nothing. He's just going on what the mother said that she had bad teeth and Barbara DeCarr said that Lisa had an occluded tooth. These bodies were found within a month of each other. We also know from Barbara DeCarr's medical records which I believe has been introduced before that she checked herself into this psych ward because the police were asking for Lisa's dental records when they found the body. The body was found May 4th, 1984. Now, what had never been provided before and has been provided by the Tampa Police Department now is the fact that the Tampa Police Department kept all of the Wayne Tompkins records together so we make a request for Wayne Tompkins and now we get a package that includes DeCarr and Albach. And the reason for that was revealed last week from Detective Burke because he closed the Albach's file because he decided Wayne Tompkins did it. As he said he didn't prove it he just knew. So now they're going through the Jessie Albach material and we found a statement from Barbara DeCarr in June of 1983. Barbara DeCarr was listed in notice of discovery as a person with material knowledge but her statement that appears in the Jessie Albach missing children file or report that the detective actually was never disclosed and it's concerning how she in June of 1983 was convinced that Jessie and Lisa were together even though they had run away a couple months apart and she was convinced that Jessie had joined Lisa and then what happened additional information there you find that Jessie was sighted weeks after she was reported missing with a man that was six feet tall and thin with straight blond hair. That becomes important with the rest of the material regarding this. You find that a six foot tall thin man with either white or gray hair appears, appears because he is concerned they have found the body. It was never investigated. He's the owner of the Naked City. This person hired teen-age runaway girls and reports show he would alter their driver's license to make them look older and employ them as lap dancers in his after hour Naked City and have them engage in prostitution. He was convicted of having a house of ill fame in late 1983 and interestingly in June of 1983, June 24th, 1983 approximately three weeks after Jessie disappeared and there was a girl who matched Jessie's description that being four eleven to five feet tall who went by the name of Lori who a cabbie picked up at the Naked City to take home who had complained that Graham had raped her. So the cabbie reported it to the police and the police went to look for the girl and couldn't find her and was told that she had moved away the day after the rape. No one ever investigated that nor did anybody investigate the fact that Graham also had a son who has the same description six foot tall with blond hair who also was arrested in connection with the Naked City store selling alcohol illegally. Nor did anybody investigate the fact that Graham where he found it was a vacant lot and he would occasionally hear women screaming but he would not do anything about it. No one investigated that. No one investigated the fact that he also reported he found women underwear garments in this vacant lot. That was never investigated either. I point all that out because if Kathy Stevens and Ken Turco the perjuror and extortionist were lying in this case then we don't know what happened. We have a suspect out there who may, who may have never been talked to because Detective Burke just knew that Wayne was guilty. He didn't do any further investigation. He ignored the fact he couldn't prove it, couldn't prove it with Kathy Stevens and Ken Turco, the perjuror and extortionist. Which brings me to, well, before that let me get to other suspects. Of course it was talked about throughout the trial was Bob McKelvin and who now that Detective Burke had determined contrary to what he said in his testimony that Bob McKelvin was over there that night and that was never revealed to the defense. Bob McKelvin as it came out during the course of the trial had propositioned Lisa for sex, offered to her various favors and certainly a girl, a run away from home because she had a fight with her mother may be tempted to cash in on one of those promises or favors but of course it wasn't investigated because the defense didn't know that he was over that night and who had a prior conviction for unnatural sex acts, um, was Everett Knight, McKelvin wasn't his real name. He had an alias which is kind of suspicious in and of itself and while I'm on that point perhaps also in the report, reports their cars, one of their cars is a Ford of an unknown model a 1971 and that interestingly Wendy Chancey says that Lisa DeCarr got into a brown Pinto. Did anybody investigate that, no. Just so the record is clear July 28th, 1983 Jessie Albach runs away. Detective Gullo in the report had Barbara interviewed and that it was never disclosed just so the record is clear Detective Burke's lead sheet that we just, it's near the bottom that talks about Bob McKelvin and the efforts that night. Just for the record this is W.H. Graham's report regarding his running of Naked City and having lewd and lascivious behavior going on there. Here's the report regarding the rape of this Lori person and the last name unknown. That was never investigated. This is a report, um, of Graham finding the remains that were identified as Jessie Albach. He says in there he would hear screams from the vacant lot. Okay, this is the police report that indicates that there is two Grahams, a father and a son, I'm sorry, the report is three pages so I know like was passed out, I guess, okay, thank you, and also neglected to provide this Maureen Sweeney and this Mike Willis report so, um, moving onward, um, we also have now learned in 1986 Kathy Stevens was convicted of perjury. She is a convicted perjuror. Um, now the State pointed out and it's, you know, obviously chronologically that the conviction was in 1986 perjury against Kathy Stevens after her September 1985 testimony against Wayne Tompkins and then the State seems to be suggesting that what we suggest they have some sort of obligation to look for favorable evidence for us. Well, da, yes. That's what we are suggesting. That's what the Supreme Court said in Rogers that they have a duty and have an obligation to look for favorable evidence. In fact in 1989 I tried to call Kathy Stevens to the witness stand because I had learned and it had not been previously disclosed that she had a boyfriend in jail that she wanted to see and that when she changed her story to say she observed some sort of assault by Mr. Tompkins against Lisa and she had not reported this for two years that he raped her they let her see her boyfriend. Now, Mr. Benito objected to my being able to call Kathy Stevens to the witness stand. Had I been able to call Kathy Stevens to the witness stand she would have been placed under oath and because Mr. Benito objected and I disagreed with the objection but the judge sustained his objection I was not able to put Kathy Stevens on the witness stand. Certainly the fact that the State convicted her of perjury at that point in time was important information that I didn't have and had I had it, I would have been arguing even more about the need to put her on the witness stand and that was kept from me. It was kept from me, the State, that Mr. Benito was keeping her off the witness stand. He reported that she was afraid of Mr. Tompkins. I would suspect she was afraid of another perjury charge. She had been there, she had done that. So we now know Kathy Stevens is a convicted perjuror and Kathy Stevens put Wayne Tompkins on death row. And just for the record this is the witness we that we are trying to develop regarding that matter at this point in time and we have tried to obtain more information but I'm not sure more information is available. It seems a lot of records have been destroyed so all we know is she was incarcerated in jail after having been found guilty of the contempt in 1986, not contempt but guilty of perjury, sorry, in 1986. And then in addition to that we now know that Turco the other person that put Wayne Tompkins on death row has been convicted of extorsion in 1995. Now the significance of that is yes we did previously present a Brady claim with regard to Mr. Turco because Mr. Turco had an escape charge pending at the time he testified against Mr. Tompkins. He indicated that he was going to get no consideration but Mr. Benito the prosecutor who took over the prosecution and who took care of that escape charge and two weeks after Mr. Turco testified against Mr. Tompkins Mr. Benito decided that since Mr. Turco had done such a good job he would allow him to withdraw his guilty plea to escape and he nolle prossed it. I am sure that the person that, who was extorted by Mr. Turco in 1995, he's dead has gratitude to Mr. Benito for making that happen. Be that as it may we now know Mr. Turco was willing to apply pressure in order to get what he wants. I think when you think about it, it shows what kind of person he is. And moreover I think that is a classic attempt of, you know, Mr. Benito testifying that well though I never made a promise to Mr. Turco that I was going to do something but, you know, what about cases before Mr. Turco where he was rewarded by somebody for what he did and what about the message that sends to people who were in jail with Mr. Turco who heard Mr. Turco had the charges dismissed because he had cooperated with Mike Benito. Your Honor, there might not have been any expressed promises but I think the course of behavior over time the prosecutor in this case Mike Benito sends the message to the jail that, you know, you help me put this person on death row I'll make it worth your while and it's clear that happened in this case. So what we have here then is we have Kathy Stevens a convicted perjurer and Kenneth Turco the extortionist and both of these things after their testimony in this case so it's not like, you know, that was something in their past, they matured, they were changed, they got over it. This is behavior afterwards after the trial showing, you know, the kind of people they are, they were in the case. This is the evidence. These are the people who convicted Wayne Tompkins. These are the ones that told the story. Kathy Stevens, I saw Wayne Tompkins on top of Lisa DeCarr but the jury didn't know when she made that story up she was getting into the jail to see her boyfriend. Kenneth Turco in the environment of prison is about to be released, he escaped and pled guilty and then he managed to come forward on Saturday and he called Mike Benito directly not really personal not to the police just directly and said, Mike, come down here. I have information and so Mike came down, what do you know? Ken Turco said, oh, Wayne Tompkins told me he did this and ironically he manages to match the deposition that Kathy Stevens had just done the month before. I think it's worth to note there is cumulative analysis that have had prior jail experience Brian Duncan. Brian Duncan was the person who appeared before the grand jury. Brian Duncan I believe is in the record told the police oh, Wayne confessed to me that he strangled her. That was the details, that was it. That's all there was, um, but it was Kathy Stevens who in her version of her story to the extent of much detail that he didn't corroborate it. He just said that Wayne said he strangled her and then Brian Duncan told Detective Burke well, you know, there were a bunch of other people here in the jail, you know, there's so and so facing this charge, facing this charge, there's so and so facing this charge and, you know, you might want to check with them they might help you. And then Detective Burke checks with those individuals and they said well, Wayne never said it to me and then Brian Duncan gets out of jail because he's told this story. He commits another burglary and the record shows that Mike Benito had this before, after he commits this burglary he calls Mike Benito for help. Mike Benito goes to trial and doesn't call him back so before Mike Benito can get back to Brian Duncan the police are knocking on the door and he's staying in a motel so they arrest him only on the burglary charge and he avoids incarceration and so desperate to avoid incarceration that he takes a bag of cyanide and puts it in his mouth and chews it and falls over dead as they're trying to arrest him and take him and put him back in jail. So you know, Brian Duncan's version doesn't even corroborate Ken Turco's. They're very different and it's just more magic when it was necessary to try and come with some evidence because Detective Burke just knew Wayne Tompkins was guilty. He didn't have evidence to support it but she managed to always find somebody in jail willing to say it and trying to see what kind of miracle thing Mike Benito can do for them. When you do a cumulative consideration in this case of, you know, disclosed information, undisclosed information for years, seventeen years I call it jaw dropping. I call it the criminal justice system at its absolute worth. And, Your Honor, I submit that the evidentiary hearing is so clearly required all you have to do is look at Lightbourne v. State, Rogers v. State, Scott v. State, Swafford v. State, each of those cases involve six 3.850's where there was information that the Supreme Court found required an evidentiary hearing. They note you have to have information pled as true and you have to evaluate it, whether or not the files records coincidentally refute the allegations and if they have an evidentiary hearing and, you know, I challenge Your Honor to look at the four cases, the information in this case that is new and what it does to the State's case that was presented at trial is so much more egregious, so much more devastating than any of the other four cases. I mean the Florida Supreme Court is absolutely correct in those four cases. Those four people should get an evidentiary hearing but I suggest because this is bigger, Maureen Sweeney and Mike Willis establish that it didn't happen on March 24th between 8:30 and 5:00 p.m. the way the State alleged and if it didn't then there are a lot of suspects in this case and Barbara DeCarr is the person who told them where they could find her. She's also the person who knows where to find the body. I know that is unusual to make an allegation that a mother can be a suspect but certainly there have been numerous courts during the past ten years of other cases that naturally in which mothers have been suspects. And I don't know of another case where a mother was actually able to tell the police where to find the body of a girl who had been missing for 15 months. There is also the next door neighbor a black man who offered to help her for sexual favors. If you can analogize it one way maybe she went to the Naked City to try to get help there and maybe she recruited Jessie to do the same thing and maybe they got raped and they got killed. That was never investigated. The files and records do not refute this. An evidentiary hearing is required and a stay of execution is required as well. This, you know, you don't need to just deny this and send it up to the Florida Supreme Court and have them do it because they're going to. They'll send it back because under the case law they have no choice. In addition, Your Honor, I just note that the DNA stuff we argued last week there was no information after the argument recited and we would ask you that you reconsider that in light of that new information. Um, I do want to specifically address especially in light of the sentencing order issue which is explained in claim five, claim four. THE COURT: Okay. MR. MCCLAIN: And I just want to note the State's position as well. This issue, this kind of issue came up, this issue came up in other cases and I wanted to note the State's position in response is that it didn't happen. It appears their position is that in fact let me just go to the line to that page, page 30 of the State's response. The State says, "the State denies any impropriety in the sentencing procedure in this case." Sounds to me like they're contesting the facts. We have been advised and I have been given an affidavit from Linda McDermott and she was told of Judge Coe's standard practice. Judge, Gutman the attorney on Holton and the State is going to offer you a transcript of that hearing, it doesn't appear in the transcript of the hearing although that issue was stipulated stipulating relief on that claim he didn't use the phrase standard practice when he was advising Your Honor. Actually it was a concern right after that but he had advised Linda McDermott that there were discussions before they went on the record and that's why he confessed error. He would at no point in time Judge Coe was the elected state attorney and was Jack Gutman because Jack Gutman was in a position to know what Judge Coe said was his standard of practice. I would also note really on that issue the State can't have it both ways. They can't say they should have known about this before and it doesn't happen and they have chosen to say it didn't happen. I just want to note for the record because I have had experience in another case where the State said it didn't happen and then when the judge actually said it did suddenly the State decided to switch to, well, they should have known it before. At this point in time the State seems to be agreeing that there's nothing in the record that should have alerted Mr. Tompkins collateral counsel, me, in 1989 to this claim before. I submit that they're going to contest what actually happened at the evidentiary hearing and is required to determine if the judge and Mike Benito drafted the sentencing order I would also note that he said, that the judge dated September 19th, signed on September 19th, 1984. It's not a case in fact I think the whole issue is there were two sentencing orders one which back dates the date of sentencing, one that it was dated the day it was signed indicating confusion because the facts became a little bit of an issue but in any event the order in that case was filed and stamped by the clerk on October 14th, 1985 and the sentencing happened on September 19th even though the judge went right to sentencing this is in essence backdated to the date of sentencing. At that sentencing he did not have the order because he couldn't possibly have had the order on September 19th and the reason I say that is because that was the date of the penalty phase and he couldn't have heard the evidence and had the order physically done all on the same day. It's not possible. And just, you know, on the face of the record it shows penalty phase happened. It says, the jury goes out, deliberates, comes back with a death recommendation, the jury is excused from the courtroom and Judge Coe says, "You're sentenced to death, adjourned." There is no way he had a sentencing order on September 19th. The file stamp is October 14th. It shows as Holton was prepared and signed later and what we have been advised in the Holton case that is the, it was Judge Coe's standard practice. Your Honor, I think that clearly if relief it not granted than it certainly would be a violation of protection to have the same situation in Mr. Tompkins' case of him executed while the State stipulates to a resentencing on Mr. Holton. Unless Your Honor has any specific questions I think I am done and unless I would just like to have an opportunity to just rebut or respond briefly depending on what the State's argument is. THE COURT: Any response? MR. LANDRY: Bob Landry on behalf of the attorney general. Onto the first issue argued on the reclaim. As already in our response all of these issues, all of these claims about the Brady violation, the Giglio violation all of that was a subject of another evidentiary hearing back in 1989. All the courts have reviewed that matter and determined that there is no, there is no constitutional error of any kind and it went to the federal court and the judge basically did an order on that and we have attached that as part of our response of his treatment of the, of the Brady issue in which he went into some detail. All these claims have previously been raised. As to the, the alleged deal with Mr. Turco allegedly helping Mr. Benito, of the witness Kathy Stevens there are three or four type issues that were repeated again here today in the pleadings, all of that was litigated previously and the state and federal courts have denied relief on it. With respect to the claim we have pointed out in our brief that in terms of his request, now he says he's found some material in the Tampa public reports, obviously, he could have made these requests years ago. As a matter of fact he made these similar requests of the state attorney's office and FDLE and in their response to the public records indicate they had filed responses in 1989. We point out that, you know, he mentioned here in his report of Maureen Sweeney but we know Maureen Sweeney in court her statement advises that what she was told at least condones the hole story. She doesn't mention anything about it at all as to what was told by Wayne Tompkins or someone else. We really don't think it has anything to do with this. It's a lead. He points to Detective Gullo's report and he talks with Detective Gullo at the evidentiary hearing at the conclusion of the trial, the court at that time that he was going to talk to Detective Gullo and if there was anything more he needs to get it in the record he would do an affidavit. He presumably chose not to do so. It didn't discover anything or didn't look as to what it he is claiming he should have gotten before. With respect to Kathy Stevens I don't know if it's a certified copy or not if the judgment deals with some kind of landlord dispute for $68.00 or something, but again this is all something that occurred after her trial testimony. She was available and then in a conference represents, without response to whether Mr. McClain, Mr. Benito talked to her at the evidentiary hearing before Judge Coe and it was represented as to what her testimony would be and the parties appeared to satisfied as to the inquiry of those two or three items and she wasn't question. With respect to the other claim talking about Brian Duncan's suicide it was all a subject matter at the last post conviction proceeding. They introduced exhibits of the newspaper column of Mr. Duncan's suicide indicating it's a weak case and that's all been reviewed by the state and federal court and they did not grant relief on that. We would ask the Court to deny the relief on the Brady claim. It's cumulative to that which he's presented in the past and we would suggest that no further hearing is needed on that issue. He points out that Detective Burke for example is giving his opinion that he thought that the Albach and DeCarr killer were the same. That's all. If you look at the deposition of Detective Burke he indicated that very early on in the deposition he thought there was a connection between the two crimes. Just because Mr. Tompkins hasn't been charged with the other murder doesn't cast any speculation on this case. The evidence overcome in this case in terms of the evidence ties Mr. Tompkins to the crime and obviously determining Lisa DeCarr's body was actually found under her house so we would ask the Court to deny relief on the evidentiary hearing on Brady Maryland issue and I believe the state attorney had some other issues. THE COURT: All right. MR. BROWN: Scott Browne with the attorney general's office and Mr. McClain actually chose not to argue the issue so and as it relates to the DNA evidence the State has as Mr. McClain would rely on in his response to those issues and the State points out there is nothing new that would require this court to demand reconsideration of this Court's earlier order. I would, however request Your Honor that if Mr. McClain in rebuttal begins to talk about DNA evidence that the State be allowed to respond to that argument. THE COURT: All right. MR. BROWN: Thank you, Your Honor. MS. VOLLRATH: Regarding issue number five, Your Honor, relaying number four on the sentencing order the State is prepared at this time to say that we will agree to sentencing, to an evidentiary hearing on that issue alone. THE COURT: Okay, anything else? MR. MCCLAIN: I believe just for clarification then the State is agreeing to a stay of execution then? It's the same standard. MS. VOLLRATH: No, we're not. THE COURT: Okay, well how long is that going to take on one issue? MS. VOLLRATH: Approximately an hour and a half, Your Honor. THE COURT: Well, -- MR. MCCLAIN: I believe I need the opportunity, I need to get witnesses here for this so I would need to have some notice and time to -- THE COURT: Who do we need to get here? MR. MCCLAIN: Danny Hernandez is a witness and Mike Benito is a witness. THE COURT: Well, -- MS. VOLLRATH: I spoke to Mr. Benito and he's available for tomorrow morning. Mr. Gutman also is available for tomorrow morning, Your Honor. THE COURT: Well, I'm going to take a 20 minute recess and you all call Mr. Hernandez' office and see if he can be around, okay? MR. MCCLAIN: Before you take a recess just also I don't know if the State is not making a diligence argument because that also I have witnesses to the diligence argument if a diligence argument is made in the pleading because I was just made aware and we would need witnesses to that effect is what I can tell the judge. THE COURT: I'll be back in 20 minutes. You all decide. (Whereupon, court was in a short recess) (Whereupon, court was back in session) Soak taken second tape. THE COURT: Have you spoken to Mr. Hernandez' secretary? MS. VOLLRATH: I spoke to his secretary, Your Honor, and he has to be at nine o'clock in federal court and that should be an hour and he's available after that. THE COURT: What about this afternoon, is anybody available like 4:00 or 4:30? MS. VOLLRATH: We would need to have the defendant present for an evidentiary hearing, Your Honor. THE COURT: That's true. MS. VOLLRATH: I have a writ that I kind of, I have spoken with the transport. THE COURT: When can we get him here? MS. VOLLRATH: The guys that transport them indicate that they would transport him to have him here tomorrow. MR. MCCLAIN: Your Honor, for the record I note that two other things that I meant to give everyone a copy of this. THE COURT: Okay. MR. MCCLAIN: Detective Burke recording the finding of Jessie Albach lead sheet regarding hair samples from Wayne Tompkins. This was also referred to in the 3.850. THE COURT: All right. MR. MCCLAIN: And one other thing is the rap sheet, I'm sorry, I neglected that as well. THE COURT: Okay, well -- MR. MCCLAIN : Again, Your Honor, hearing this I just need to know if I need to have my diligence witness, key witnesses to dispute diligence is an issue. THE COURT: What's your position on that diligence? MS. VOLLRATH: I'm sorry? MR. MCCLAIN: I want to have diligence witnesses here so -- MS. VOLLRATH: We are not in a position to state what our position is without having talked to Mr. Hernandez regarding this issue. We don't know if he was aware of any procedures regarding sentencing orders of Judge Coe so unless and until we're able to speak with him I can't answer that. MR. MCCLAIN: Assuming this may have happened? MS. VOLLRATH: Yes. MR. MCCLAIN: The judge may have done or had the State draft the sentencing order? MS. VOLLRATH: He may have, yes. THE COURT: We'll set it for eleven o'clock in the morning. MR. MCCLAIN: I would like to ask the State ti bring the -- I never received a draft of the sentencing order from the state attorney's file from Mr. Benito back in 1989. I had an experience in the Roberts case where one showed up in that file and they make some diligence argument and I would just ask that the file be brought tomorrow so it can be reflected on the record and establish whether there is -- MS. VOLLRATH: We'll bring the trial file. THE COURT: Okay, I had a couple of questions or matters here. The May 3rd, 1984 report concerning interviews of Graham. The August 18th, 1982 report concerning the establishment known as the Naked City. The December 27th, 1983 letter from the state attorney and May 21st, 1984 report or record showing that in June 9th, '83, W.H. Graham being investigated for rape for one of the girls that worked at the Naked City on June 24th, police report of June 9th and June 14th, 1983 interview of Lori Lite. A report that was released on June 9th, 1984 W.H. Graham found bone in the area of the body believed to Jessie Albach was found and May 9th, 1984 report revealing that there were two W.H. Graham's and all those items obviously that came out of the Albach investigation. MR. MCCLAIN: Well, Your Honor, what we received one, do you have it? I left it in the hotel room I can bring it tomorrow but I just received a package from the City of Tampa and it's labeled so it's here and kept in one file because they believed Wayne Tompkins did both cases so it is, it wasn't received when we asked for everything of Wayne Tompkins and so there is not a legal distinguishment between the Lisa DeCarr and Albach case. THE COURT: I noticed in the reports there was some sort of notation on the top of the report concerning that. MR. MCCLAIN: Of course, Your Honor, I provided to you I think all of them were there when I provided for the clerk and so they I think indicated on the top of some of them indicate a variety or summary of different things. THE COURT: And somebody mentioned something about some sort of a certified copy of conviction of Kathy Stevens so do we have that? MS. VOLLRATH: No, that document that was read was not a certified copy, Your Honor. THE COURT: What is it? MS. VOLLRATH: Appears to be a face sheet of a lawsuit involving a landlord dispute where I believe she's the defendant and there was a record of arrest sheet on it and I don't recall the other two documents. MR. MCCLAIN: The source of that actually the landlord tenant has doing with they're tying, it's just a document I was handed from the log sheet I got and it's another document showing the perjuror's conviction which doesn't seem to have anything to do with the landlord and this is what the clerk's office gave us something I do not have a copy of and that's not required unless we're in an evidentiary hearing so at this point in time. THE COURT: I thought somebody mentioned that. MR. MCCLAIN: It's a statement, it's not a certified copy. I acknowledge it's not a certified copy. THE COURT: Can I have a copy of that? MR. MCCLAIN: I provided that to the clerk. THE COURT: Okay, all right. See you all in the morning at eleven. MR. MCCLAIN: I assume Mr. Tompkins will be here. THE COURT: That's what you're telling me. MR. MCCLAIN: Thank you. (Conclusion of proceedings) à ÃCERTIFICATE OF COURT REPORTERÄ Ä STATE OF FLORIDA COUNTY OF HILLSBOROUGH I, COLLEEN MERRITT, OFFICIAL COURT REPORTER for the Circuit Court of the Thirteenth Judicial Circuit of the State of Florida, DO HEREBY CERTIFY that I was authorized to, and did report the proceedings and evidence in this hereinbefore-styled cause, as stated in the caption attached, and that the preceding transcript attached hereto is a true, accurate and correct computerized transcription of my report of the proceedings had at said session. I FURTHER CERTIFY that I am not employed by or related to the parties to this matter nor interested in the outcome of this action. IN WITNESS WHEREOF, I have hereunto set my hand and seal in Tampa, Hillsborough County, Florida, this 14th day of August, 2001. ------------------------------- à ÃColleen Merritt, Official Court Ä Ä Ã ÃReporterÄ Ä