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: Ä Ä84-010538 à à DIVISION: "Ä ÄA" WAYNE TOMPKINS, Defendant. 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 11, 2001, as follows: à ÃVOLUME IÄ Ä APPEARANCES: Shirley Williams and Sharon Vollrath, Assistant State Attorneys, 800 E. Kennedy Blvd., Tampa, Florida 33602, in behalf of the State; Todd Scher, Martin McClain and Suzanne Myers, Esquire, CCRC- South, 101 N.E. 3rd Avenue, Suite 400, Ft. Lauderdale, Florida 33301, on behalf of the Defendant. Robert Landry, Scott Browne, and Kimberly Hopkins, Dept. of Legal Affairs, Westwood Building, 7th Floor, 2002 North Lois Avenue, Tampa, Florida 33607, on behalf of the Attorney General's Office. 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 ................................ 3 1 DEFENSE WITNESS - BARBARA SANCHEZ ......... 21 20 DIRECT EXAMINATION BY MS. MYERS ........... 21 20 CROSS-EXAMINATION BY MR. SABELLA .......... 24 4 STATE WITNESS - SHARON VOLLRATH ........... 95 12 DIRECT EXAMINATION BY MS. WILLIAMS ........ 95 12 CROSS-EXAMINATION BY MR. SCHER ............ 99 20 DEFENSE WITNESS - AUBREY BLACK ........... 109 22 DIRECT EXAMINATION BY MR. SCHER .......... 109 22 CONCLUSION OF PROCEEDINGS ................ 130 25 CERTIFICATE OF REPORTER .................. 131 1 ÃÃE X H I B I T SÄÄ ÃÃPAGEÄÄ ÃÃLINEÄÄ State Composite 1 - photos ................ 85 22 State Exhibit 2 - faxes .................. 105 23 State Exhibit 3 - log .................... 106 15 P-R-O-C-E-E-D-I-N-G-S THE COURT: Okay, we're here in the case of the State of Florida v. Tompkins, 84-1050 -- 10538. What are we going to do? MR. SCHER: Good afternoon, Your Honor. THE COURT: Good afternoon. MR. SCHER: For the record Todd Scher, S-C-H-E-R from CCRC from Fort Lauderdale on behalf of Mr. Tompkins. With me at counsel table is Martin McClain who is going to be assisting me with the Tompkins case and Suzanne Myers also from my office who is going to be assisting me on this case. THE COURT: All right. Who do we have from the State? MS. VOLLRATH: Sharon Vollrath with the Hillsborough County State Attorney's Office and Shirley Williams. Um, Mr. Bob Landry from the Attorney General's Office and Mr. Scott Browne, Ms. Hopkins from the State Attorney General's Office. THE COURT: Okay. MR. SCHER: There's a number of things that are on the calendar in terms of things that we need to address today. Probably the easiest thing for us to do first would be the public record issues because there's a lot of attorneys and various agencies here and we may go ahead and deal with that so they can leave and then we can go back to the other things. MS. HOPKINS: Your Honor, I'm Kim Hopkins with the Attorney General's Office and I'll be handling the public records and if that's where you want to start we have some stuff we would like to give you before and have an index of all of the demands and responses that have been made. THE COURT: Okay. MS. HOPKINS: The index along with a copy of them. They're quite voluminous. May I approach? THE COURT: Sure, come on up. MS. HOPKINS: This is the original that we're filing. We have a copy for the judge. THE COURT: Thank you, all right. MS. HOPKINS: I believe the staff attorney wanted a copy, Your Honor. MS. HOPKINS: We have the list of the agencies that are here and if you just to want go alphabetically after obvious Mr. Scher needs to proceed. THE COURT: Sure. MS. SCHER: Actually, Ms. Myers is going to be handing the public records from our office. THE COURT: All right, Ms. Myers? MS. MYERS: I do have one suggestion that to maybe expedite things. I understand that every agency we sent a demand was noticed by the State however; there may not be issues with every agency. THE COURT: Okay. MS. MYERS: So maybe if I could just do a brief status where we're at from our position. THE COURT: Okay. MS. MYERS: And then maybe the agencies that do have objections we could take them one by one. THE COURT: All right. MS. MYERS: Um, as of right now, Your Honor, I believe that the only agency that we do have outstanding objections are the Department of State Division of Elections, FDLE, Florida Parole Commission, and that was filed as one objection under with the office, with the Office of Clemency as well and the Attorney General's Office. There were various agencies that did state they were objecting however; then said they were going to turn over the records anyways. THE COURT: Okay. MS. MYERS: So I haven't included them on the list simply because it seems to be a moot point if they turned over the records. THE COURT: All right. MS. MYERS: Um, we did file a motion to compel for those agencies that we as of the time we filed it which was Monday had not responded in any way. Since that time several of the agencies I have spoken to them where they have sent records to the repository I'm aware of that. THE COURT: Okay. MS. MYERS: However, there are still a few that I have absolutely no response from. That would be Dade City Police Department, Hillsborough County Jail. I have not seen, um, anything that would indicate Hillsborough County Sheriff's Office sent records but I did speak to someone who indicated they were sending them to the repository and I have heard nothing from the Tampa Police Department. THE COURT: Okay. MS. MYERS: That's basically where we're at right now. I don't know if those agencies without standing objections if you want to take them one by one. THE COURT: Let's do them one by one. MS. HOPKINS: Um, Your Honor, we can go alphabetically through the agencies. THE COURT: Okay. MS. HOPKINS: The Department of Corrections, William Tharber is representing the Department of Corrections. THE COURT: Okay, come on up. MR. THARBER: I don't know where we are. MS. MYERS: Like I said the Department of Corrections my understanding was that there was an objection however; the records were turned over anyway. THE COURT: That's what appears from what I have been given here. MS. MYERS: Correct, and that's a transmittal from the repository which indicates that the records were received by the repository however; they have not been received by CCRC South which is also set forth in the motion to compel. I had spoken to the repository and just on those records the DOC records we weren't to receive them until today, tomorrow or Friday. THE COURT: Okay. MS. MYERS: But I think the repository is a separate issue at this point. THE COURT: Okay. MS. MYERS: There was also from the Department of Corrections a notice of delivery of exempt records, um, which Your Honor would need to review to see that. I don't believe I have any objections to the exemption claimed but the rule requires that Your Honor review the material. THE COURT: All right. MS. MYERS: However, my understanding is I have faxed an order to Your Honor I believe it was late Friday. I fed-ex'd a hard copy which should have been received Monday. THE COURT: I know there was an order signed and faxed up there. I know today for sure. MS. MYERS: I spoke to the repository yesterday afternoon and they had not received it. THE COURT: I don't recall getting a faxed one. I did get a hard copy but I don't think it came until yesterday but it was signed and I know it was faxed today for sure. MS. MYERS: Okay, then I suppose the Department of Corrections exempt records will be delivered to you for inspection. THE COURT: All right, so do we need this gentleman any further? MS. MYERS: I don't believe so. THE COURT: Thank you, sir. MS. HOPKINS: Your Honor, if we could just skip over us since these people are here. THE COURT: Okay, go ahead. MS. HOPKINS: The next one would be Greg Cowsert. THE COURT: Come on up. Your name again, sir? MR. COWSERT: Greg Cowsert. THE COURT: You want to spell your last name. MR. COWSERT: C-O-W-S-E-R-T. THE COURT: All right. MR. COWSERT: I believe Mr. Martin's name may have appeared on some of the pleadings from our Tallahassee office. THE COURT: Okay. Where are we with them? MR. COWSERT: We have made a delivery to the repository of some records. I believe there's some additional that will still be going there but we do have some objections as to some of the items that were requested so I don't think it's resolved yet. Um, we were requested to produce records under two categories. It was 3.852 (i) motion and regarded twelve different individuals that were named and our position with regard to the (i) provision is the rule itself requires that there be filed and served an affidavit by CCR that establishes the relevancy of the particular items being requested and that did not occur in this case. Additionally due to the passage of time it would appear that the names provided and may have been known for a number of years previously and were not requested in earlier requests. As to the other provision that appears under 3.852(h) and that situation the Florida Supreme Court has held in the ÃÃSims v. StateÄÄ case, 753 So.2d, 66 in 2000 that the (h) provision was designed to be an update as to previous records provided by the agency. As to that aspect of things we believe that we have done the update and that would constitute the records that are being sent to the repository but in their request it appears that they're asking for a few additional names there and our position is that would be inappropriate as to brand new information. THE COURT: Okay, your position? MS. MYERS: Um, to address the 3.852(h)(3) objection first regarding additional names it's my understanding that what was sent to the repository was regarding Wayne Tompkins and the investigation of Lisa DeCarr, correct? MR. COWSERT: I believe that would be correct. There's still one more submission to be made in that regard. MS. MYERS: Then there was a few additional names and I would state simply that the rule says that part of the requirements are that to request records that were not for any reason not produced previously, I would argue we did request from FDLE previously. These were records that were never provided to our office and they are relevant to the investigation of the case. As for the 3.852 (i) argument I believe Mr. Cowsert stated that one, there is no affidavit attached; am I correct? MR. COWSERT: That's correct, it indicates filed and served and our agency didn't receive it. MS. MYERS: I would point to the pleadings itself does contain an affidavit within it. It sets forth all of the requirements of (i) under number one. It sets forth what records we're seeking and are not currently in our possession or not at the repository and it does state that it has signature affiant at the end of what it sets forth. These records are relevant they're the jurors. Um, there were problems at the trial with jurors with communications occurring outside of the jury room, outside of the courtroom. There were problems with at least one juror I believe reading newspaper articles so certainly any information that the jurors were untruthful would be relevant to the proceedings. The State was put on notice at the time of the trial because Mr. Hernandez brought forth problems with the jury at that time. Um, I would argue that the State has an ongoing duty under ÃÃBrady v. MarylandÄÄ to provide these, any exculpatory information which would include impeachment information and whether jurors are untruthful to Mr. Tompkins. Um, the Florida Supreme Court has made that relevant to post-conviction proceedings through ÃÃTerrell Johnson v. ButterworthÄÄ and ÃÃRoberts v. ÄÄ ÃÃButterworthÄÄ. THE COURT: Well, weren't you all aware of that in the prior -- when the prior requests were made, weren't you aware of this jury problem then? MS. MYERS: Your Honor, at that time I don't believe that rule 3.852 was if in fact it was in effect at the time Mr. Tompkins' case was in public records. MR. COWSERT: I'm not sure this constitutes an affidavit in any event it sets forth in the rule that the affidavit itself must establish the good cause for the Court and while counsel has made some arguments this morning I think this document she produced doesn't establish any facts it just restates the various provisions in the rule. MR. MCCLAIN: Just for the record, Martin McClain for the record on just elaborating on the question in trying to answer questions in competent counsel 1989 made one question at that point and presented it. There was a claim presented based on the question about the juror's misconduct. I think it's actually the original direct appeal record cite is page 331 where Mr. Hernandez puts on the record a problem with the juror and there's a brief inquiry. In the 3.852 in 1989 we presented an affidavit from a family member regarding that incident and explaining that incident and we raised and if then we sought the information then. Since 1989 nothing has been turned over to us but it seems to me that we're still entitled to ask if there's something new that has come to light I mean we're not in a position to know if after FDLE has obtained information on any of these people since '89 and now which would be relevant to us figuring out if any of the jurors lied to Judge Coe when he conducted the inquiry or there's any particular information that FDLE would have in their possession regarding these jurors and that would resurrect that claim but there was a claim made back in 1989 and there was an affidavit from a family member explaining the circumstances. I just wanted that for the record. THE COURT: Okay. MR. COWSERT: I'm unaware of a claim but if it wasn't voiced in terms of a public record request to our agency and he's established that they didn't know about it at that time. THE COURT: Okay, anything else on this point with this gentleman? MS. MYERS: No, Your Honor. MS. HOPKINS: Your Honor, I realize I don't represent the agency in this but I would also point out to the Court and Kim Hopkins for the record that the ÃÃGlockÄÄ case also points out that in this particular circumstance that they have to show good cause as to why that request was not made until after the death warrant was signed so I do have a copy of ÃÃGlockÄÄ for Your Honor and Ms. Myers. MR. MCCLAIN: In addition to that I think there's an allegation on Ms. Hopkins' part to make representation for the record that she's reviewed those records and she can and she can attest that there is no Brady material in those records, there is nothing favorable to Mr. Tompkins since we have not been able to see those records and not been provided them. MS. HOPKINS: Judge, I can't speak for the agency in that regard and I just point out that portion in the ÃÃGlockÄÄ opinion with that regard. THE COURT: Okay. MR. MCCLAIN: That was not addressed in the ÃÃGlockÄÄ opinion so I think in response to the State's position if they're going to cite ÃÃGlockÄÄ then they need to be aware that was not addressed in the ÃÃGlockÄÄ opinion. THE COURT: All right. MS. HOPKINS: Your Honor, I did include a copy of the rule 3.852, the ÃÃSimsÄÄ opinion and the ÃÃGlockÄÄ opinion. THE COURT: All right, anything else regarding this particular matter? MS. MYERS: No, Your Honor. THE COURT: Let's move onto the next one. Who is next? MS. HOPKINS: Your Honor, I believe we have someone from the Hillsborough County Sheriff's Office. MR. SABELLA: Your Honor, Chris Sabella for the Hillsborough County Sheriff's Office and Mr. Nutter with our agency filed a response in objection on April 9th and I filed a supplemental today after contact from the attorney general's office because the jail was listed separately. The supplement that I filed today just incorporates the response filed by Mr. Nutter and it asserts that the jail, the Hillsborough County Sheriff's Office are the same entity and so just asserting, reasserting the response filed by Mr. Nutter in response to objections on behalf of both of those entities. First, we have produced a number -- MS. MYERS: I'm sorry, if I can I have never seen the original objection. It was never received in my office or maybe -- THE COURT: I know there's one because I received one. MS. MYERS: I'm not sure maybe it's a delay in the mail but I never received one. MS. HOPKINS: Your Honor, if you're talking about from the Hillsborough County Sheriff's Department that should be in our packet that we handed you. THE COURT: Seven (A) and (B). MS. MYERS: If I can have just one second to look over it. THE COURT: Sure go, ahead. MS. MYERS: Okay, Your Honor, I read through it. THE COURT: Go ahead. MR. SABELLA: Your Honor, for the record in the response filed by Mr. Nutter we asserted that the sheriff's office was in the process of producing a number of the records requested in several, in separate requests and those have been sent via Fed Ex to the repository today and the transmittal was faxed to the repository I believe eleven o'clock this morning. Your Honor, there is additional objections set forth in Mr. Nutter's response that included objections along the same lines that FDLE objection for failure to file the necessary affidavit but in addition to that I would just rely on the argument already presented by FDLE as to those objections. We don't believe that the affidavit that was filed in the, in the request is sufficient under the rule but in addition the number of the names that were in the request do not include any identifying information. They do not include date of birth. They do not include sex and I have with me our public records coordinator if the Court wishes to hear testimony regarding the attempts made by the Hillsborough County Sheriff's Office to locate information on those people but when we put in, some of them are very common names we come up with you know several records that we have no way of knowing whether they related to the same John Doe or whatever the name may be that they requested so we would object to those on the grounds that the information is vague and the sheriff's office is unable to determine who not in fact they are seeking the records regarding based on the lack of information provided. We would additionally add objections based on the number of the requests for victims, all information relating to victims of several homicides including homicides or victims of Bobby Joe Long the notorious serial killer, Santini was another notorious homicide case in Hillsborough County and they have requested all the records relating to victims who they named in the request but those records are voluminous and would be unduly burdensome on the part of the agency just to produce those records including a couple of ongoing homicide cases. I believe it's the Santini case that has not been prosecuted yet so they requested all information regarding the victim in that case and that case has not come to trial yet. So, essentially, Your Honor, our objections are based on the lack of the proper affidavit, the fact that there's a lack of identifying information so that the request is vague. Also that the request as to the homicide victims is unduly burdensome on the agency. THE COURT: All right. MS. MYERS: Um, just so I can clarify because looking at our demands we have requested information on several individuals and I understand several of them did not have identifying information because I have no further identifying information on them. I do understand the difficulty in that. I would like to hear from your public records person who can tell us what search she did do and also if I understand you, you said hundreds of files pop up when you run this through. Um, you know, is it really hundreds on one name or is it two or three and if it's more than two or three then I would ask that a representative from CCRC be permitted possibly to come to the office and review those and see if there's anything that can relate it to the person that we're naming. If you want to hear that now from the public records person before I go on we can do that. MR. SABELLA: Your Honor, I have Barbara Sanchez here but it may not be necessary if the Court determines that the request is insufficient because of the affidavit that is required by Subsection (i) of rule 3.852 it may not be necessary. It may be a moot point. THE COURT: Well, let's go ahead and do this. MS. MYERS: I would like to point out -- THE COURT: Let's go ahead and do it and let me just caution everybody here. When I talk nobody else can talk. Come on up. You want to raise your right hand please, ma'am. Do you swear or affirm testimony you're about to give will be the truth, the whole and nothing but the truth? THE WITNESS: Yes, I do. THE COURT: You can put your hand down. If you'd state name for the record and spell your last name. THE WITNESS: I'm Barbara Sanchez, S-A-N-C-H-E-Z. THE COURT: All right, you can inquire. Whereupon, BARBARA SANCHEZ, after having been duly sworn to tell the truth, the whole truth, and nothing but the truth, was examined and testified as follows: à ÃDIRECT EXAMINATIONÄ Ä BY MS. MYERS: Q I first ask you what type of search did you do in your office when you were given a name or identifying information? A Okay, when we do a master index first by the last name, first name and date of birth. If we do not have the information of the date of birth we will put the name in exactly how it is requested. So we try various ways to try to pull up information to see if it happens to have a match and if there is a similarity then we provide a copy of the names that did come up in that computer. Q You say you put a name on a computer, you put the name through a computer? A Correct. Q What happens when you put the name through the computer? What does the computer do or what does the computer provide you? A Okay. The computer will provide us information as to the times that an individual has been booked into the jail system, an incident that would occur that we would have a record of. It would also show if someone has gone to the I.D. section to be fingerprinted as well as -- Q Do you put each of the names individually that will on demand and run through the process? A That's correct. Q Okay. I understand from the response that you were able to get hits on several of the names that had identifying information and have provided records? A That's correct. Q On that information? A That's correct. Q The names that did not have any identifying information did you receive any hits on the computer on those names? A I would be able to show that the name was ran and if there was a hit then we would provide a list or -- Q Okay. So you have a list that we could look through rather than coming to your office say and looking through all the files we might be able to determine something from hits on the list? A That's correct. MS. MYERS: That's fine. I would just ask that we could receive that list at your earliest convenience if you have it today. I did want to point out one thing they said that this request of the individual with no identifying information was made under 3.852(i) and that's incorrect. That demand was made under (h)(3). THE COURT: Okay. MS. MYERS: I just wanted that to be pointed out. I also, I think that's all the questions I have for you, Ms. Sanchez. MR. SABELLA: I would just like to elicit testimony from Ms. Sanchez. THE COURT: Go ahead. à ÃCROSS-EXAMINATIONÄ Ä BY MR. SABELLA: Q Regarding the victims of several homicides I think Ms. Sanchez attest to the Court the amount of labor and the voluminous files that would be requested under any and all information related to several of the names that are victims of the serial killer Bobby Joe Long, Mr. Santini and a number of other homicides. A I can say that some of these records have already been provided to CCR under the request of Bobby Joe Long. MR. MCCLAIN: Just for the record CCR South doesn't represent Bobby Joe Long so the fact that it has been provided to a CCR doesn't mean that it was provided to this CCR and I also just want to make a point that one of the reasons for this investigation is the newspaper articles in 1985 and 1986 were reported that all of these victims were unsolved murder cases and they may have been linked. It's not like we're just out of the blue asking for records on all murder victims in Hillsborough County. There is documentation that you know was provided in the motion DNA testing showing that in the past these murders were listed as being linked. MR. SABELLA: If I may just have Ms. Sanchez attest to what would be required of her in the Hillsborough County Sheriff's Office to comply with the request as it relates to those specific victims. MS. SANCHEZ: It's, um, it's a lot of records and it would probably take days to compile the record. THE COURT: Okay, anything else? MR. SABELLA: That's all I have, Your Honor. THE COURT: Whose next? MS. MYERS: I'm just -- I'm not sure we're finished with the sheriff's office because -- THE COURT: Go ahead. MS. MYERS: We did not address the Hillsborough County Jail which I don't see that any records have been provided from the Hillsborough County Jail. We do know that since or in 1989 Wayne Tompkins was in the Hillsborough County Jail because there was a post-conviction proceedings going on here at the time so there certainly would be records that or possibly there are records that have been produced since that time or at that time that we do not have. MR. SABELLA: That was provided today what was sent by Fed Ex in response to that and in fact what we have is records disposition requests there certifying that the records from those times had been destroyed; is that correct? MS. SANCHEZ: That's correct. MR. SABELLA: But it is in the response that was sent to the records repository today. THE COURT: Any questions regarding that? Apparently they're saying those records have been destroyed; is that right? MS. SANCHEZ: Yes, I have a certification of disposal. MS. MYERS: Okay. Have you provided a copy of the destruction policies that you know if it's been five years or ten years? THE COURT: What is your policy on destruction of records? MS. SANCHEZ: It's according to the Department of State Bureau Archives and for the inmate records it was one year and it does state that on this form although we maintain them for a longer period of time. THE COURT: How long do you all maintain them? MS. SANCHEZ: Five years. THE COURT: Five years, okay. Anything else? MS. MYERS: Except for depending on I guess if it's contingent on your ruling I would like a copy of the list of the hits that she got on the individuals that weren't -- THE COURT: Any problem with providing that? MS. HOPKINS: Your Honor, I realize that you're taking each argument in turn and not ruling on any demands at this moment but to the extent that the rule and opinions from regard to the way the court interprets the rule to prohibit a fishing expedition. I think that what they're asking for is clearly that because you're going to give them an opportunity to look at things that clearly aren't even related to the case to try to find something maybe possibly as relating to this case so we think that should be an objection with regard to each of the agencies because I think this issue came up in other agencies that had some problem identifying other demands. MR. SABELLA: Just to provide further on that, Your Honor, for example -- THE COURT: Let me see it. MR. SABELLA: Just to show there's a James Davis, this is all of the James Davis'. There are several hundreds, several hundred reports or hits in the computer of the Hillsborough County Sheriff's Office computer regarding James Davis. What Ms. Sanchez tells you it takes some time to prepare and we have that list of James Davis but to prepare copies as far as our original, to prepare copies of that and all the other names that did not include identifying information so that the sheriff's office was able to determine that this is in fact the names that they were requesting information on would take some time to prepare those lists for them to review. MS. MYERS: If I just could respond to what Ms. Hopkins is saying. I understand there is a voluminous amount of these records because these names seem to be common names and unfortunately because of the very few records that have been received in the past by our office in this case we can't provide any additional information. That doesn't mean that each of these individuals isn't relevant or, um, wasn't part of the investigation back in 1983, '84 and '85 unfortunately because we don't have a large amount of records we're unable to come up with any identifying information but each of these individuals are important, were involved with the investigation and it could lead to information that could be used in our claims now. MR. MCCLAIN: I just want to add that James Davis for example was Lisa DeCarr's boyfriend. He was an essential witness in this case. Supposedly he gave this engagement ring according to Barbara DeCarr which the police records don't show him ever saying he did. We know approximately what his age is because he went to school with her. If we see the list we may be able do determine which ones are likely to be the ones that could be him but we don't have a birth date because the police did not include a birth date when they interviewed him that we would be able to cite and give to the sheriff's department but since no one apparently Ms. Hopkins is not she has not attested that she's gone over any of these records to see if there's anything exculpatory. If there's anything exculpatory we're not going to know and they're going to say well, execute Mr. Tompkins and it doesn't matter that we may have records here that are going to show that he's innocent. We don't have time to find them. MS. HOPKINS: Your Honor, if I could just be heard additionally on that I think it's important to focus on the context of these public records request and a death warrant has been executed and as both counsel explained this information is not new to them. What we are doing there or what they should be doing here is limited by the rules of an update of the information that they have requested in the past and clearly they had an opportunity to try to identify who these people might be since obviously at the time of trial for example this James Davis so I think again keeping in the context of how these cases and the rule has been read by the Supreme Court that this request should denied. MR. MCCLAIN: Just briefly if I may respond in the case of Johnson and Butterworth and the case of Ricky Roberts Ms. Hopkins has an obligation when she stands here in court making this argument that she can represent that she has established from her examination as a prosecutor in this case of these files that there's nothing exculpatory in them, nothing favorable to Mr. Tompkins and she's not doing it. THE COURT: All right, you don't have to turn them over yet. Just hold onto them. What else? MS. HOPKINS: The next office is the Office of Executive Clemency and William Camper is here. THE COURT: Okay. MR. CAMPER: Good afternoon, may it please the Court. THE COURT: If you'd just state your name for the record please. MR. CAMPER: Judge, I'm William Camper I'm and general counsel for the Parole Commission in Tallahassee and I'm here representing the Florida Parole Commission and the Office of the Executive Clemency. We received a request for public records, request both of parties that I represent wanting clemency files and records, records connected to the clemency process and I submit that this issue has been litigated previously, has been ruled on by the Supreme Court in several cases. It's clear in the rules of executive clemency and in the Florida statutes that they are not entitled to these records. Clemency files and records are confidential and not subject to public records law. We litigated this case in a case of Florida ÃÃParole Commission v. Jerry LockettÄÄ, 1993 in which it said that the clemency process is strictly an executive branch function and derives solely from the constitution. The legislature cannot by statute preempt or overrule the clemency rules without violating the separation of powers doctrine and separation of powers provision prohibits the trial court in a post-conviction proceeding from requiring the parole commission to produce investigative files compiled by the commission on behalf of the governor's cabinet acting in a capacity as a board of executives of clemency as such files are subject solely to the rules of executive clemency. Rule Fifteen regarding capital cases and Rule Sixteen regarding clemency cases in general, provides that all these files are confidential and not subject to production. Further Florida Statute 14.28 provides that clemency files again are confidential and not subject either 119, or Article One, Section 24 of the Florida Constitution. The aspect of the request that wants them cites also Brady, that they're Brady materials and also litigated with that Florida Supreme Court spoke to that case to or that situation in the case of ÃÃMark James Asay v. The Florida Parole CommissionÄÄ cited in 1995, that the Brady prohibition against withholding exculpatory evidence did not apply to clemency proceedings and thus disclosure of records kept on behalf of the Florida Board of Executive Clemency was not required. Crime scene investigation materials were gathered well after trial and appeals had ended and such records enjoy a high level of confidentiality. Florida constitution law exempts clemency records from any disclosure and not authorized by the governor. So, clearly, Your Honor, we respectfully submit that the, any files and records from the, regarding the clemency process are not subject to the public records request and therefore respectfully that is why we have declined to produce them. THE COURT: Any response? MR. SCHER: Yes, Judge, for the record Todd Scher. Just a couple of points. One thing that wasn't mentioned is that the statute and rules do provide that it's within the governor's discretion. It's not an absolute bar to production under both the rules and the statute and I would like to ask the representative from the governor and the parole commission what exactly are circumstances under which the governor would choose to exercise such discretion? Here we have a situation where the governor has not appointed clemency counsel for Mr. Tompkins has determined that executive clemency is not appropriate. Um, as a matter of routine the governor consults with the attorney general's office with respect to who, which capital cases are going to be getting a death warrant and yet Mr. Tompkins and his counsel are completely left in the dark. I would like to know under what circumstances such the governor would exercise his discretion and hopefully I would be able to meet those circumstances sufficiently so I can review these records. The other matter that I would like to bring up in terms of their position on this matter is that I would ask that these records be provided to the Court for an en camera inspection. THE COURT: Well, as to your first question about what conditions the governor would exercise discretion, I don't think that's an area for these proceedings. I mean, I'm not the governor and I don't think that that's appropriate in this proceeding. I think that you are going to have to ask the governor that. Um, as to the other matter it appears to me from reading the statute and the response and the argument here today that these are confidential matters and they're not entitled to disclosure and as to their, your request for public records from the, from them I'm going to deny that. I think it's fairly clear from the case law and statute, okay? MR. SCHER: Thank you, Judge. MR. CAMPER: May I be excused? THE COURT: Yes, sir, thank you. MS. HOPKINS: Your Honor, the next representative we have is Marie King from the state attorney's office in the sixth circuit but I'm not sure the defense has any issue with her response since they didn't initially list her as we began this hearing but she's here. THE COURT: Okay. MS. MYERS: Um -- THE COURT: Do we need her? MS. MYERS: I don't think so. Um, my understanding is that there was an objection but she decided to provide the records anyways in order to expedite things. I think that was it. There was objection to providing the offices organizational chart and I'm not going to have an issue with that. THE COURT: All right, so you provided the, this information has already been provided that they asked for? MS. KING: Yes, Your Honor, we observed the objection for a new name that had been previously requested of our office when we complied twelve years ago but we in an abundance of caution after speaking with the state attorney in Hillsborough have provided the records to the repository and to the exempt records to Your Honor as well as to the repository. THE COURT: All right, thank you. MS. MYERS: Um, those exempt records would be reviewed in case there was any information -- THE COURT: Right. MS. MYERS: Also I am taking for granted that they have been deposited and delivered to the repository. I haven't received a transmittal sheet yet. THE COURT: Okay. MS. MYERS: They're pretty good about getting them to me and they're probably at the office. THE COURT: All right. MS. KING: May I leave? THE COURT: Yes, ma'am, thank you very much. MS. HOPKINS: Your Honor, I believe we'll skip the Thirteenth Judicial Circuit State Attorney's Office and go then to the Pasco Sheriff's I believe the jail again Mr. Randall is here and I'm not sure if there is any issue with these records or not since they weren't previously mentioned. THE COURT: Where are we at with -- MS. HOPKINS: Number 13. MS. MYERS: Your Honor, we have had several conversations on the telephone and it's my understanding that Mr. Randall has provided the records to the repository. Again I don't yet have a transmittal sheet but I'm sure it's in my office today. The only -- MR. RANDALL: We've got a copy so I'm sure you got one too. We got one so I am sure you got one. MS. MYERS: The only thing I would point out that Mr. Randall and I discussed is he was providing our office with a data base list of the officers we were asking for internal affairs files on and so that there isn't an abundance of records that they have to produce and he agreed that he would review that list and if there was anything on the note on there that we wanted then we would contact him and he would provide that to us. THE COURT: Okay. So they have -- MS. MYERS: I haven't seen the list yet because we haven't physically gotten the records yet. I understand that he was kind enough to bring copies to us today as well as sending them to the repository so -- THE COURT: Okay. MR. RANDALL: We have done so, Your Honor, and in referring to the request we're like the Hillsborough Sheriff's Office. We have one for the department and we have one for the jail. They made two requests for internal affairs records. We have a data base on internal affairs records where we search names where for example I would be the subject of the investigation. I would be the supervisor of the subject of the investigation. I would be the person who complained about the investigation or I'm the person who conducted it. We have done this before with other offices with the CCRC and we essentially say look at these and it in part also tells them what records we no longer have. If there's anything you want, a one specific file we'll give it to them. It's one of those things where they agreed but we always suggest that because frankly it just works so if they have any and given the age of this case there are very few internal affairs files. They're probably going to get more from the summaries then if they ask for all files that been destroyed but they'll know which ones have been destroyed and which ones aren't. THE COURT: All right. Do you need him any further? MS. MYERS: No, the only thing if he's leaving he has the records. MR. RANDALL: I'm going to sit for a while. THE COURT: Okay. MS. HOPKINS: Your Honor, the ones that remain are the Office of the Attorney General, The Division of Elections and The Department of State and the State Attorney's Office. Um, I would point out they also mention the Dade City Police Department and they did not respond and while I'm not sure that they directed a letter if it's at One (B) and they did respond to you, Your Honor, by a letter that said that they did an accurate search and that -- THE COURT: What number? MS. HOPKINS: One (B) and they found nothing. THE COURT: All right. MS. HOPKINS: The same for the Department of Business and Professional Regulations, number two. Again those I'm not sure that there's an issue with either one of those but those I would point out that in they're in receipt they found nothing in the search they conducted pursuant to the demand. THE COURT: Any issue to either one of those? MS. MYERS: Um, I don't have any issue with The Department of Business Professional Regulations. I did receive that and looking at this if they have no records they have no records so I have no issue about that. THE COURT: All right. MS. HOPKINS: I guess we can go to number four then just going through the list is the Office of the Attorney General which Your Honor was not listed on the motion to compel so I'm not sure again there's an issue with our office. MS. MYERS: I believe you had objected and that's why you weren't on the list on the motion to compel. MS. HOPKINS: The way the compel motion was set out it seemed like it was the ones that objected and responded and you weren't there at all and that's why I'm not sure if there's really an issue before the Court since they haven't sought to compel us to respond but I can say that we did file a response to the Court. If you look at their demand and that's Four (A) I believe it is, yes, for the most part each of these individual demands (A) through (P), Three (A) through (P) refer to the investigation and the prosecution by our office and our response indicated that we neither investigate and or prosecute and so for the most part we do not possess the records that they have requested. The next we would point out that the things we do have in our office are primarily public records material which in terms of fact they filed with the clerk. We have the record on appeal, the pleadings were filed in the appellate courts and towards those documents they clearly are possessed to those documents. First of all I would also point out that they, their first request of our office on August 11th of 1995. At that time we indicated that the records were available to them on October 16th, 1995 for their inspection and no one from the defense ever attempted to review any of the records that they sought in their initial demand in 1995. Now they come with this current demand and if you look at it pursuant to the 3.852(h) I think that again that we intended to be an update because they didn't follow up on finding any information in the first place there would be no true update of the information that they originally sought to the extent that they would be entitled to anything that was new. We would say that this is an ongoing litigation and so for that reason we would not turn over any records and also again as I pointed out most of them would be part of the court file to begin with to the extent is not we would maintain the exemption of the work product doctrine about that information to the extent that their demand can be considered a new demand under the subdivision. Again I and as others have indicated they did not follow the requirement of that rule by filing an affidavit and to the extent they would argue that this demand satisfies that rule I would point out to the Court that with other agencies they did file the rule under (i) and filed a correct affidavit. They did not with our agency. And to that extent they would have to, to the extent a new demand and they would have to establish for the record relevant or reasonably calculated to lead to the discovery of admissible evidence and I believe that's their burden to do and they certainly did not do so in their demand or in the motion to compel and I'm not sure that they can do that here in court now. Both ÃÃSimsÄÄ and ÃÃGlockÄÄ are relevant to this rule and again they would have to show according to ÃÃGlockÄÄ that what they're asking for relates to a colorable claim for post conviction relief or to a focused investigation into some legitimate area of inquiry or good cause as to why they did not make the request until after the death warrant was signed. Certainly with respect to that last requirement I don't believe they're entitled to that from our agency much less any of the other agencies especially given the fact that they point out that they were aware of much of the information they seek at the time of the trial. Other than that there were some specific requests they made that we have objected to as being too vague, as over broad and unduly burdensome. If I can go line through each one. I believe the last one -- THE COURT: The one relating to any and all records which relate in any way to Wayne Tompkins, that one? MS. HOPKINS: Well, that was obviously over broad and vague in (A) but also they're asking for any and all files related to any matter below and there's a list of individuals that are subject to an investigation and there are no below listed individuals. I think that would be the sum total of our response to the demands to the Office of the Attorney General. THE COURT: All right. Yes, sir? MR. SCHER: Thank you, Judge, just a couple of matters. Obviously with the last thing, um, you know these things are done in a rush obviously and that was a typographical error. Um, Ms. Hopkins argued extensively that I failed to provide an affidavit as part of my 3.852(i) and I treated her agency somehow differently than other the agencies. I sent no demands to her agency under 3.852(i) and the demand was under 3.852(h) there is no affidavit required so all of that is really irrelevant to this matter. The only thing I would argue, Judge, as to the Office of the Attorney General is number one, I would request that they either disclose, provide to the Court or represent that the, they have no records in terms of any clemency matters or proceedings or documents that they provided to the governor or the governor provided to the Attorney General in Mr. Tompkins' case. I would also point out that not withstanding all the extensive arguments that were made the attorney general is under an ongoing obligation under ÃÃJohnson v. ButterworthÄÄ and ÃÃRoberts v. ÄÄ ÃÃButterworthÄÄ to provide any Brady material and so I would suggest that any information that they have which they claim they do in which she indicated they do have new information but that it was an ongoing case I would remind them that they also have an obligation to disclose any Brady material and I would ask that I have a representation that if they do have such that it be turned over to the Court. THE COURT: All right. Any response? MS. HOPKINS: Yes, Your Honor, I think our, we didn't indicate that anything new happened to the extent that we did have anything that they raised the argument related to that. I can't tell you that we do have anything related to that and I don't know how to answer that question. MR. SCHER: I would ask that they check. MS. HOPKINS: Your Honor, I would point out that the demand doesn't mention anything about clemency that they have no demand in our office asking anything having to do with clemency records so -- MR. SCHER: My demand is for anything in their records whether anything relating to clemency in their records. I'm not the one who put the label on the file it's anything in their office. THE COURT: All right, you all don't talk over each either. Anything else regarding this matter? MS. HOPKINS: No. THE COURT: All right, let's move on. MS. HOPKINS: Also we have The Division of Elections Department of the State. I don't believe that anybody is here representing them, Your Honor. They did file an additional response in opposition to the motion to compel and I want to make sure that Your Honor has a copy of that as well as the defense. MS. MYERS: I don't recall getting a response. MS. HOPKINS: It was tracked to us at 9:34 a.m. MS. MYERS: I wouldn't have a copy of it. MS. HOPKINS: You do or don't? MS. MYERS: No, I would not. I was here at 9:30 this morning. MS. HOPKINS: I have my copy. Do you have one, Your Honor? THE COURT: I'm sure there's probably one in the file but if you'll give that one to the clerk for a moment I'll have some copies made. MS. HOPKINS: That is more to the demand to the motion to compel that to the extent that the defense has raised questions concerning whether they complied with the requirement and actually respond to that portion in the motion to compel. I cannot speak for the Division of Elections with regard to their response directly to the demand but there I can reiterate what they answer is in response to the demand which was that the defense counsel had not shown that they made a previous request at any time for records and so that would preclude additional records under Subdivision (h) and also they did not comply under rule, under (i) for new demand and that was the gist of their response and they did not provide any records to anyone but there are also counsel representing the repository and that's what was given to have a copy made of and a response to the motion to compel. THE COURT: All right. MS. MYERS: I may have misunderstood then. I have a response from the repository faxed to me yesterday if that's what you're referring to. MS. HOPKINS: Motion to compel? MS. MYERS: Yes. MS. HOPKINS: That is, here's another copy of it. MS. MYERS: Let me make sure we have the same response. MS. HOPKINS: Response in opposition to compel public records and that is sort of separate from their response to the demand. MS. MYERS: Response to demand of motion to compel for public I do have that. MS. HOPKINS: Again they don't have as far as I'm aware a representative here to argue. THE COURT: All right. MS. MYERS: Briefly on the matter for the Division of Elections, the request was made under 3.852 (i). It was not made under (h) (3) so there is no need for a showing of previous requested records. The records requested were on Judge Coe. It's never been made before honestly we never had any reason to believe that there may be improprieties. Certainly information has come to light since we were at public records last time that there may be improprieties and that is what the request is based on. MS. HOPKINS: I would simply point out, Your Honor, that again if they're making their request under (i) they that would have to establish that the records are relevant or reasonably calculated to lead to discovery of admissible evidence and that has not been done. MS. MYERS: Usually the demands do set forth requirements and I think I specifically just stated a more specific reason for how they're relevant. There is an affidavit within the demand as well. THE COURT: All right. Anything else on that matter? MR. SCHER: If just one more thing on this particular matter is that part of the reason and obviously there's an ongoing investigation from our perspective and we had a good faith basis before making this request in terms of the information relating to Judge Coe. I understand that the rule does set forth that we need to show good cause or whatever and we have done that to the best of our ability without obviously disclosing any confidential matters that are currently under investigation of Mr. Tompkins and I don't know what else we can do other than represent to you as officers of the court that we made the request in good faith and it does relate to matters that are currently being looked into on behalf of Mr. Tompkins. THE COURT: All right. MS. MYERS: I believe you wanted to do the repository next however; I don't think you mentioned the Tampa Police Department. MS. HOPKINS: I got ahead of myself, you're correct, because that's clearly about public records demand but that was part of the same division so we can leave that for after. MS. MYERS: Okay. MS. HOPKINS: We do have four other agencies quickly that eight and nine are the Pasco and the Hillsborough medical examiner and they seem to have provided all records to the repository without objection so I don't know if there's any argument to be made on either of those agencies. MS. MYERS: Can you say that again I'm sorry. MS. HOPKINS: The Pasco medical examiner and Hillsborough medical examiner. MS. MYERS: That's correct, that again is an issue with the motion to compel to the repository. We have actually physically received records from the Hillsborough County medical examiner via the repository and we are yet to receive the Pasco County Medical examiner records however; I haven't seen a transmittal sheet that says they're at the repository. THE COURT: All right. MS. HOPKINS: With respect to public records all that remains is the Thirteenth Judicial Circuit State Attorney's Office and the Tampa Police Department and that would be argued by Ms. Sharon Vollrath. THE COURT: Okay, Ms. Vollrath. MS. VOLLRATH: As for the Thirteenth Judicial Circuit, Judge, there was three demands given to us two dated March 26th and one dated March 30th. As to March 26th demand we have provided records to the records repository. We did file an objection along the same grounds as the Hillsborough County Sheriff's Office regarding vague and over broad as to names who have no identifiers to be able to figure out which names were the ones they were seeking records on, Your Honor, and then we have some of non production. So those two have clearly been complied with. Everything has been sent to the records repository. Regarding the motion to compel as to that we have verified that they were received by records repository on Monday morning and so they are there and I don't know if you received the transmittal. MS. MYERS: Um, I may have that transmittal but I am aware from the responses that the information that they have it has been sent. As for again with the names where we didn't provide identifying information again it's because the lack of records we have we don't have any identifying information on every individual. I believe in this instance it's a fewer amount of names. I think there was two different responses. I got on one response there was four names and on another response there was three names. Again I would ask that what the state attorney's office indicated is that files or hits on their search on the data base have produced some files on these individuals and I would ask that we be able to review that to see if in fact we can somehow type in the individuals we're looking for. MS. VOLLRATH: We have the same names as the James Davis situation where you get numerous names, Your Honor. I do have our research that was done and we did conduct an exhaustive search of our computer system and just to put on the record that goes back to 1987 that where all names were put in either a capacity of a defendant, a victim, involved party or a witness. Prior to 1987 we were then limited to coming to the clerk's office running through their microfiche both on felony and misdemeanor cases as defendants only in the name as they have provided it. If we found the name as it was provided we then pulled that case number, came back to our office and did a hand search of our records to determine whether those files were in existence and many of those files had been burned. We have provided our office policy regarding the destruction of records that did go to the repository and you should have that. We did file one exempt document, Your Honor, and it is relating to a document regarding grand jury procedures which we filed with the exempt records repository however; the last two pages of that document included the names, personal addresses, work phone numbers, home phone numbers of the grand jurors in this case and also of the state attorney and I believe maybe the chief judge on that. We claim that is an exemption and we have provided that to Your Honor for inspection. MS. MYERS: Um, okay, that was a lot of information. Um, as to the names that have no identifying information I don't know if you have a list like the Hillsborough County Sheriff's Office does and if I assume depending on your ruling we can review that list as well. THE COURT: Okay. MS. MYERS: Rather than coming down and looking through a number of files. I believe you mentioned the exempt records and you delivered them to the Judge and -- THE COURT: The exempt records were delivered were the grand jury, dealt with the grand jury. Most of it was the grand jury if I recall correctly most of it was grand jury manual and procedures I think they gave to the grand jurors and they used in the proceedings. MS. VOLLRATH: Right, we provided the manual to the repository, that has been provided just the last two pages which is all that we're claiming is the exemption as to the personal addresses, phone numbers, names of the grand jurors. THE COURT: Yeah. MS. MYERS: You provided additional information to the Judge? MS. VOLLRATH: No, I provided the two last pages that were in the manual that had the names of the grand jurors with their home phone numbers, their home addresses and etc. those last two pages I have claimed as exempt documents. MS. MYERS: I see. If I can have one second, Your Honor. THE COURT: Sure. MS. MYERS: I just have one clarification. I think Mr. McClain has something he wants to address. In one of your responses notice of production to defendant's demand for additional public records it's paragraph nine, I don't believe you have another one titled the same thing but you state with regard to the request (a) through (m) all documents in its control regarding Wayne Tompkins which has been received or generated after April 6th, 1989 the date of the last request I believe and it doesn't say they were sent to the repository. MS. VOLLRATH: They have been. THE COURT: All right. MR. MCCLAIN: I want to address is one of the objections is a paragraph that says there's a handwritten note on April 1989, demand to the effect that all records regarding Wayne Tompkins that have previously been provided and my understanding is you're not providing those because you're relying on that handwritten note that you did attach to the objection and all I'm -- MS. VOLLRATH: No, I believe, I then went onto reiterate that we have no new names that even though on that request which there's a handwritten note that said all records pertaining to Wayne Tompkins have been provided and then re-ran the names and have provided any documents. MR. MCCLAIN: That's not my question. My point is I'm not in a position to know whether in fact Mr. Benito provided all that information in 1989 and I have no means since not being provided again of making sure that everything was provided in 1989. You did attach I believe it's the letter the public records request dated April 16th or 19th of 1989 from CCR in which there's a handwritten note indicating earlier this month everything has been copied to my knowledge and that's -- MS. VOLLRATH: Is that a notarized document? There's a notarized -- no, that's the handwritten note there's also an attached document sent on that date that has been provided. MR. MCCLAIN: Now all I'm making sure for the record is since I'm not able to either come over and inspect or whatever there is no way for counsel for Mr. Tompkins to know if in fact that everything had been turned over. THE COURT: Okay, well I think they provided an affidavit that would indicate that they have turned everything over. That takes care of that. Anything else regarding this matter? MS. VOLLRATH: There's nothing else regarding that but I am doing the production for TPD, Your Honor, for the next agency. THE COURT: Okay, and you all don't have any argument as in regards to the grand jurors names and addresses and that sort of thing? MS. MYERS: No, Your Honor. THE COURT: Just making sure it's clear. What else we got? MS. HOPKINS: All we have is the Tampa Police Department. THE COURT: All right. MS. HOPKINS: There are two demands, two responses you received both responses. MS. MYERS: I have received no response from them. MS. HOPKINS: They should be attached to Fourteen (B). MS. VOLLRATH: There is a response. MS. HOPKINS: I believe the second one just came in this morning. THE COURT: Okay. MS. HOPKINS: To our office anyway. MS. VOLLRATH: Your Honor, I'd like to deliver to TPD a manilla folder full of documents. THE COURT: You mean CCR you just said delivered to TPD, you just said you just delivered them to TPD. MS. VOLLRATH: I'm sorry I just delivered TPD's response to CCR's demands. MR. SCHER: Just for the record, Judge, there is quite a large manilla folder here with several hundreds of documents as well a manilla envelope which appears to have a number of photographs in it as well. THE COURT: All right. MS. VOLLRATH: Your Honor, Kirby Rainsberger could not be present and he's the representative for TPD. He had a four month old standing doctor's appointment with a surgical procedure today and he couldn't be present and told me to fill in for him. THE COURT: All right. MS. VOLLRATH: He had notified me that additionally on Friday and on Monday I believe he indicated he sent records to the repository so there are additional records there but these are the last bunch that he didn't have when he sent them up on Friday and Monday. MS. MYERS: So those that are at the repository are different than what we have here? MS. VOLLRATH: Yes, that's correct. And in fact this, that folder of documents that I just provided has not been provided to you is my understanding. MS. MYERS: Okay. I just would note number two on the second response addresses our request for any physical evidence and it states that we can set up an appointment and I'm sorry I misread this. Can I have one second, Your Honor? THE COURT: Yes, sure. MS. MYERS: I thought that what paragraph two said that any physical evidence we could make an appointment and go look at it however; we had made two requests one was for physical evidence or tape recordings or anything regarding Wayne Tompkins or the investigation of Lisa DeCarr and the second request was for physical evidence related to the homicide of Jessie Albach and this only addresses the physical evidence in Jessie Albach's case that we can make an appointment to view which is fine and I assume we can make the appointment with Kirby Rainsberger however; it doesn't address physical evidence in Wayne Tompkins. MS. VOLLRATH: I can only represent to the Court that it's my understanding he was going to allow them to have them come in and inspect evidence as to both cases. Um, I will tell you that I have personally viewed the box and the box of evidence contains evidence from both cases and so you would be getting access to both cases in one box. MS. MYERS: So Mr. Tompkins' evidence and the Albach evidence is all in one box? MS. VOLLRATH: Yes, and sealed inside one box. MS. MYERS: Um, I do just want the record to state that we did send someone to the Tampa Police Department to look at this evidence about a week to ten days ago and got a complete run around and could not get in to see the evidence so just so that I'm clear if we contact Mr. Rainsberger he will arrange it all for us. THE COURT: Yes, make sure that he's aware to arrange for both of the individuals that she discussed and when do you want to do that, by when? MS. MYERS: Um, we would -- MS. VOLLRATH: Well, he's not available today. He's at a doctor's appointment and out of commission. MS. MYERS: Is there anybody else at the Tampa Police Department? THE COURT: Don't they have somebody else, an attorney? MS. VOLLRATH: I am sure I can if we are finished this afternoon so I can contact someone directly I can try and -- THE COURT: Ms. Vollrath, if you can let's try to get it done today. MS. MYERS: We have a 3.850 due and this is the only time we're here so -- THE COURT: All right, let's try and get it done. Anything else? MS. HOPKINS: Your Honor, that takes care of each agency unless you want to hear argument on the motion to compel. THE COURT: If you all want to make argument in general I'll certainly hear it. MS. HOPKINS: Very briefly I would just I don't know if Defense wants to go first. THE COURT: Whoever wants to go first. MS. MYERS: I'll go first since it's our motion. THE COURT: Go ahead. MS. MYERS: Really the only thing remaining on the motion to compel issue is with the repository. The problem that we're seeing right now from the repository as of the time that I filed the motion to compel and I as of yesterday the only records we have received in our office were the Hillsborough County Medical Examiner's and records from the state attorney's office only on one of the jurors that we had listed and the grand jury manual. Those were forwarded to us from the repository and also I should note that we received partial DOC medical files of Wayne Tompkins because DOC forwarded that to us directly. However, as to the motion to compel set forth I have spoken to a representative at the repository on Friday April 6th. Um, at that time I indicated to her the need that these records and the processing of them be expedited. She understood that and she said it was a priority however; because of the amount of records that she currently had on April 6th we would not be receiving any records until maybe late this week. At that time on April 6th the only records in the repository when I spoke to her was the Department of Corrections records, the records that they had sent. I just think that there seems to be a problem because if just those records were going to take this long to get to us who knows how long the rest of the records that have been sent up there are going to take to get to us and if we don't have the opportunity to review these records certainly Mr. Tompkins is being denied his right to investigate his claims and be able to adequately plead a 3.850 which Your Honor has set due on Friday. The way things look right now we're not going to have any, we might have the DOC records and the records that have been hand delivered to us today but certainly there is a large number of records at the repository that we're not going to have an opportunity to view. MS. HOPKINS: Your Honor, I would just point out that the response speaks for the repository that they filed with regard to the fact that they're working as expeditiously as possible in order to provide them with these documents and within their response they do point out that practically speaking if they really needed to see them sooner they can actually physically go to the repository and see them and I just want to point that out for the record. They also point out that again practically speaking if the Court were to enter an order to compel them it wouldn't really change the fact that they're working as physically as fast as possible to provide them with these documents and so towards that end I would say there's really no point on the issue in order to compel the repository to do what they're already doing as fast and as physically they can and their affidavit from their own analyst sets that forth, Your Honor. Then generally speaking overall with the motion to compel the other agencies that we have seen today everyone has complied and so again for that purpose I think there's no practical aspect of the issuing of an order to compel and ask the motion be denied or dismissed. THE COURT: Anything else? MS. MYERS: Um, Your Honor, they say they are working expeditiously I don't know without a representative here I don't really know what that means. I don't know, you know, if they're working around the clock. This obviously is imperative. I mean a man's life is at stake and I just don't know what that means. And in speaking I mean I understand the problems here with the repository that there is, you know, this delay in getting things in their office and there's things they have to do but Mr. Tompkins just can't be denied those records because of their process. The other thing about going physically to the repository looking at them I would guess that's an option. My understanding is we have sent a representative from our office up there before and it was some time ago and maybe their procedures have changed, um, but you have, you're taken into a room to look at the records. I believe you're not allowed a pen or pencil. You just can view the records and that's it and I think my understanding is that a representative from the archives has to sit there with you. That's not really a conducive environment to do the type of investigating that we need to do with these records. Like I said I don't know if that procedure has changed, um, but that was my understanding the last time we checked. MR. SCHER: Todd Scher if I could just add to that point. I don't believe the procedure has changed because the records that are in the repository actually are part of the Florida State Archives and so they don't differentiate between me going in to look at a four hundred year old document versus the Hillsborough County Sheriff's Office document, it's the same rules. Number two Florida State Archives obviously is a state agency and they have strict hours and the other beside of the obvious times factors involved here is the other impracticality in taking that suggestion is that these records are being sent there every single day on a staggered basis and I can't afford to have me or the rest of my staff just sitting waiting for the mail to come in to the repository every single day to hear until whenever they all come in so I do understand the repository has difficulties in another pending death warrant and they're dealing with that as well. I think our point simply is that anything that the Court can do to expedite the situation would be greatly appreciated given the obvious time constraints that we're working under here. The State's position is that let the repository work at their own pace and that's fine and perhaps the State would not oppose an extension for us to be able to file Mr. Tompkins' 3.850 because at this point we're within 48 hours of the filing deadline and we have probably less than five percent of the records that have been sent. MS. HOPKINS: Your Honor, again I'm not arguing for the repository. THE COURT: I understand. MS. HOPKINS: But in response to the affidavit attached directly addresses there's got to be an exact procedure they have a day by day since March 28th of the original request they received exactly what they have done in the affidavit. If you look at the affidavit she talks about each and every individual and what they received and when they began to copy on that date and also in here paragraph two of the response it says furthermore I received the copies of the records arrived at the repository and they're available immediately on site for inspection and selected copying so with respect to their procedure they've set forth, Your Honor, in their response and again they have exactly what they've done with respect to scanning the archived documents and the date as they come in and they provided you with the exact process that they're doing and I think you can see from their response they take great issue with a suggestion that they are not able to complete this job in a timely manner. They point out that there's several points have been raised as to their exact procedure and I think that anything that could be raised is answered by the response in the affidavit that was attached. MR. SCHER: Just briefly Ms. Hopkins doesn't represent them and she is taking umbrage to really not within her purview. Our position with the repository is it's not personal. We're not mad at them. We understand the position and that's what happens when you have two death warrants signed on the same day with an execution set, two executions set within 24 hours and the agencies that wait until the very last minute to send all these records up there there's going to be a back log. Our point simply again is if there's anything that the Court can do to expedite this or that the Attorney General's Office can do to expedite this it would be greatly appreciated. THE COURT: Well, you know these things tend, everybody tends to wait until the last minute. I think he's been under a death sentence for quite a while and it could have been asked for before now. Anything else? MS. HOPKINS: No, Your Honor. THE COURT: All right, we'll take about a fifteen minute recess. (Whereupon, court was in recess) (Whereupon, court was back in session) THE COURT: All right, um, I just want to make sure I cover everything when I make this ruling. It appears to me we basically have three things left, the sheriff's office, those list of names from them that you are asking for, right? MS. MYERS: Correct. THE COURT: The state attorney's office that list of names that the state attorney's office has. And whether to require the repository, to compel the repository by a certain time to provide you with these records. MS. MYERS: I believe there's also, um, there's an objection by the Florida Department of Law Enforcement, um, regarding several individuals and regarding the juror's names. THE COURT: Yeah. MS. MYERS: And then also the Division of Elections records on Judge Coe, Your Honor. I think before we go on, the Department of Corrections wants to put something else on the record. THE COURT: Sure. Your name for the record, again? MR. THARBER: William Tharber again, Your Honor. THE COURT: Yes, sir? MR. THARBER: Actually in reviewing our documents apparently there are a few things that I didn't intend to mislead the Court but we have not actually sent everything to the repository. There are several documents that we have kept due to the nature of the documents. Basically on the fact what we're worried about the unintentional release of these documents specifically dealing with the execution team. THE COURT: Oh, okay. MR. THARBER: I just list through actually noted in our Department of Corrections objection to the defendant's request for public records and notice of compliance with request for public records dated actually maybe we didn't date it. It was dated May 5th, 2001. These specific records -- THE COURT: May 5th? MR. THARBER: Pardon? THE COURT: May 5th you said? MR. THARBER: Excuse me, April 5th. Um, we actually did claim that they were exempt material and our objection as well specifically the command post radio log which makes reference to specific security post and the time of security checks at those posts. The notification list which makes reference to the specific contacts and various agencies, security arrangements and executioner identification. Pursuant to ÃÃBryan v. StateÄÄ and ÃÃSims v. StateÄÄ the Supreme Court actually upheld the these exemptions. THE COURT: Any response? MR. MCCLAIN: Briefly, Your Honor, again for the record Mr. McClain we recognize ÃÃSimsÄÄ and ÃÃBryanÄÄ and other cases even before and in connection with the electric chair litigation and the lethal injection litigation that occurred in ÃÃBryanÄÄ. But I would just note for the record just last week in California there was a lethal injection execution in which the media obtained access to watch and California had not previously allowed but the court allowed it over the DOC, the California Department of Corrections objection that it would reveal the identity of the execution team and the Court said well, it's too bad and ordered access anyway ignoring or overruling the objection on those grounds and ultimately when the execution took place in fact the execution team did nothing to conceal their identity and so I would just note that for the record. I do recognize at this point in time that the Florida Supreme Court has ruled in ÃÃSimsÄÄ and ÃÃBryanÄÄ however; I would note that in California that objection basically was overruled and the execution took place anyway and there were no problems. THE COURT: All right. Well, I believe those things are exempt and I'm not going to require you to disclose them. MR. THARBER: Okay. THE COURT: Anything else? MR. THARBER: May I be excused now, Your Honor? THE COURT: Yes, sir. Anything else? MS. HOPKINS: No, Your Honor. THE COURT: All right, what I'm going to do is I'm going to have you an order by five o'clock. MS. HOPKINS: I'm sorry? THE COURT: I will have an order by five o'clock, a ruling one way or the other but in going through the file I did find a motion that hasn't docketed. Where did it go? I just had it. MR. MCCLAIN: We had two. THE COURT: A motion for DNA testing of evidence. MR. MCCLAIN: There's a motion one in reference to clemency counsel which Mr. Scher is going to handle and I was going to do the DNA motion. THE COURT: Okay, we want to go ahead and do those now? MR. MCCLAIN: Sure. THE COURT: All right. MR. MCCLAIN: Just during the fifteen minute recess, Your Honor, the State handed to me the response which I guess was mailed to my office yesterday, to Mr. Scher's office which indicates an appendix but there is no appendix to it. MS. VOLLRATH: We have one, sorry. THE COURT: Okay. MR. MCCLAIN: Um, first of all, Your Honor, I think as it came up during the course of public records discussions there is physical evidence which we want to go inspect this afternoon. Our understanding is that physical evidence is and we're sort of relying on the previously disclosed FBI report indicating that they received certain evidence that they examined and note that there was hair on that had been found with the body which has been alleged to be Lisa DeCarr and they noted that the hair would be suitable at some point in time in the future for comparison purposes and there's also some hair that perhaps wasn't suitable for comparison purposes as they noted previous as well. The lab at that time could reach no conclusions other than noting that this evidence existed. Obviously it was sent off to the FBI crime lab back ion 1984 after Mr. Tompkins had been charged because the prosecution believed that the evidence was relevant and important and that it needed to be analyzed and in order to be reliable adverserial testing in court and so when the conclusion came back that no conclusion could be reached obviously nothing was introduced regarding that at the trial. Nevertheless in the years since 1984, mitochondrial DNA testing has developed in which allows an examiner to be able to extract the mitochondrial DNA from hair so that we would be able to find out the mitochondrial DNA of these hairs possessed. Now, um, the State in its response to this motion first has relying on ÃÃZeiglerÄÄ and I would note for the record that that's exactly the same argument in the Broward County State Attorney's Office made in another case that I handled Frank Lee smith and in keeping the DNA testing from happening in that case until after he was dead. Then the DNA testing was allowed and occurred and established that in fact Mr. Frank Lee Smith was innocent and hadn't committed that crime. It seems to me that a more appropriate time to do the testing is before the defendant is dead rather than afterwards so I think that the reliance on ÃÃZeiglerÄÄ is misplaced. Um, first and also with reference to ÃÃZeiglerÄÄ I would note ÃÃZeiglerÄÄ did not deal with mitochondrial DNA. It dealt with I believe PCR, DNA and note that no request had been made in the five years since 1991 when it was first recognized in Florida as being admissible. At this point in time the State has not indicated what is the date that mitochondrial DNA became admissible in Florida. When did the clock start ticking, um, and so how does anybody from Mr. Tompkins have notice and I think it's due process is required that notice, notice of when it was that it was accepted such that the request could be made and the results can be presented in court. I think it's pretty clear that after the news accounts regarding Frank Lee Smith that the legislature and the Florida Supreme Court have recognized that provisions need to be made to allow the testing and to establish a date in which the clock would start. Currently pending in the legislature right now are bills both in the House and the Senate. My understanding is everyone seems to be expecting them to pass and the signing of law by the governor perhaps sometime in the month of May. It seems to me it would be inappropriate to execute Mr. Tompkins and then not allow him to have the DNA testing that everyone recognizes should be afforded to individuals on death row in Florida and also the Florida Supreme Court is in the process of proposing rules regarding this matter. So for these reasons I submit that it would be appropriate in this case since we know that there is hair that could be tested and we know we can get results. Now the other point that the State makes in their response is they're saying that well there's no question that this was Lisa DeCarr. Well, there's two points to make in reference to that. First as to whether or not the remains are Lisa DeCarr. There was an identification made. All the information to make that identification came from Barbara DeCarr as to the -- there were no dental records. She indicated that there was this arrangement of the teeth. There were other jewelry. There was cross earrings and diamond ring but Barbara DeCarr indicated that Lisa had the day she disappeared and however, Kathy Stevens in fact testified to the opposite. There were no earrings she saw at that time. So I don't think that the identification is quite as clear as the State would make and if it's not Lisa DeCarr then this case unravels. But second more important there's hair and we don't know who the hair is from and hair could be from the assailant and so if we find mitochondrial DNA of someone other than Wayne Tompkins or Lisa DeCarr with that body there's a problem. And so I mean I think, I think the State would be hard pressed to maintain that Mr. Tompkins is guilty if that hair, this hair that there is not from Wayne Tompkins or Lisa DeCarr. So for both of those reasons, both because it could determine whether this is Lisa DeCarr or somebody else the identity of the victim it also may provide the information regarding who the assailant was so DNA testing needs to be done before the execution takes place and the best reason I can cite to you is the State wanted to know in 1984 after they charged Mr. Tompkins because they sent it off for testing then but technology at that point in time didn't allow any conclusions to be reached so it seems to me now it needs to be done before the execution takes place. For that reason we would make the request and in addition we would note that, we called, Mr. Scher actually called the governor's office yesterday to try and find out if there was a formal position because we he had offered some other options to the governor last Friday requesting the opportunity to do DNA testing and there was no -- I don't think anybody called back and left a message however; the newspapers have reported that the governor's position is that he's in favor of the DNA testing. He just does not want it to delay the execution. So for those reasons I would ask for the DNA testing, Your Honor, as it was done in the Holton case. THE COURT: Any response? MR. Browne: Yes, Your Honor. THE COURT: If you'd just state your name for the record. MR. BROWNE: Scott Browne with the Attorney General's Office. Your Honor, the request for DNA testing at this late stage is clearly untimely under Rule 3.850(b) and the decisions by the Florida Supreme Court in both ÃÃGlockÄÄ and ÃÃZeiglerÄÄ. The appellant knew that identification of the victim in this case was an issue throughout the lengthy post-conviction process yet he waits until the signing of the death warrant and pulls it out of his back pocket in an obvious attempt to delay the execution indefinitely. That's improper, Your Honor, under the Florida Supreme Court case law, under the Rules of Criminal Procedure. Also, Your Honor, mitochondrial DNA testing is not a relatively recent development. The State has attached an article from Forensic Science Review that's been utilized and incorporated around this country since 1996. It was utilized in 1999 in a courtroom in this circuit in the Oscar Ray Bolin case so the idea that it was just developed yesterday is false. It's not true. In fact going back to 1992 and 1994 mitochondrial DNA analysis was used to identify Vietnam veterans remains and it was also used to test the bones of the Czar and Czarina so this is not a very recent development. Your Honor, the State also presented absolutely overwhelming evidence to support its identification of the victim as Lisa DeCarr in this case. In fact the evidence was so compelling to that a unanimous panel of the Eleventh Circuit classified Mr. Tompkins' claim and he alleged in the brief that the State didn't present that much evidence showing identification of the victim they called that claim preposterous and they set out in their opinion a detailed analysis of the evidence establishing the victim was in fact Lisa DeCarr and Your Honor recalls and I'm sure Your Honor has a copy of the opinion and has looked over the record in this case. The victim was found under the house that she shared with her mother and Mr. Tompkins at the time of her disappearance. The medical examiner testified that the remains were those of a teen-ager in her mid teens. The victim was a teen-ager in her mid teens. More importantly the victim was identified because she was wearing the unique jewelry that she always wore by her mother. Her mother said she always wore that ring and always wore those earrings. Also the victim was observed and found with the bath robe that Lisa DeCarr was observed that very morning by her mother. Not only that she was observed in that bath robe by her friend who saw Mr. Tompkins on top of her assaulting her in that very house. So you have all these compelling circumstances including the fact she had a very unique dental structure. She had an occluded tooth and the medical examiner testified that the tooth was distinctive. The mother identified that tooth. That tooth was found on the skeletal remains so this is a case where you have absolutely overwhelming evidence showing that the body buried underneath her home was that of Lisa DeCarr. Absolutely compelling evidence. There is no reason to believe that this DNA test that is requested at this late date is going to result in any favorable evidence to the accused and as for these hairs possibly belonging to the hairs that the State doesn't know exist at this point as for those hairs possibly belonging to an assailant that wasn't even a claim made either presently in the motion before the court or in any of the lengthy post-conviction proceedings in this case. And the appellant relies on Holton which is a case that Your Honor is very familiar with. That case stands in a much different procedural posture. That case is a first non successive ruling of a 3.850 motion. The appellant or Mr. Tompkins in this case waited until his death warrant was signed to get a procedure, request a procedure that he knows is going to take a very long time to complete. It is untimely. It's abusive in this case and there's no reason to order that test, Your Honor. MS. WILLIAMS: Your Honor -- THE COURT: Go ahead, Ms. Williams. MS. WILLIAMS: Judge, from a practical standpoint I would like to introduce into evidence State's Exhibit Composite Exhibit One and what these are, are the photographs that were introduced into trial of the skeletal remains that were found underneath the house and I would particularly call the Court's attention to the debris that is attached to not only the remains but also to the clothing that the remains were wrapped in, in order to point out how preposterous it is to pick out a couple of hairs from the trash that surrounded this body and claim that somehow that would exonerate this defendant. THE COURT: You want to show it to them first if they want to see it. MS. WILLIAMS: Certainly. MR. MCCLAIN: For the record I would object given the State is the one who sent the hairs off to the FBI lab for testing. Obviously at the time they did that they thought that hair was connected and could be established and in fact the FBI lab reports says that the hair can be analyzed and is suitable for comparison purposes. THE COURT: Okay, well -- MR. MCCLAIN: So part of the FBI lab, it's, it's so this isn't relevant this isn't showing anything. I mean what is relevant is the hair itself and if the State wants to bring that over now and introduce that into evidence I would have absolutely no objection because that's what is relevant and what needs to be tested. THE COURT: All right. Well, I'll allow these photos in over your objection for the purposes of this hearing. Anything else? MR. MCCLAIN: Yes, Your Honor. THE COURT: Go ahead. MR. MCCLAIN: The State is saying, wait and not be diligent. Well, no one notified Mr. Tompkins' counsel that the warrant was about to be signed but what we did know is that after the Frank Smith which was an embarrassment for the State of Florida the legislature was considering changing the law to allow DNA testing once that bill is signed so but for the warrant being signed without notice Mr. Tompkins was waiting for the law to completely eradicate this ridiculous reliance on ÃÃZeiglerÄÄ because the law is going to do that. So I think given that the newspapers, the media, the legislature and the Florida Supreme Court have all recognized the need for this change to allow the DNA testing to try and sneak through an execution before the law has been changed to allow it, is just outrageous and the argument that has been made by Mr. Browne here today is exactly the same argument that Carolyn McCannon (phonetic) made in the ÃÃFrank v. StateÄÄ case and stopped the DNA testing there and that led to the embarrassment saying that the evidence was overwhelming that the jury convicted after hearing from these witnesses. Well, that happened in Frank Lee Smith too and they were wrong and the DNA evidence established it. And at this point in time we have the ability to do the DNA testing and to know what's there and I submit it should be done. Thank you, Your Honor. THE COURT: Anything else? MS. WILLIAMS: My only comment, Judge, is that's my argument responding to the DNA testing in this case won't show anything. It's -- there's a couple of hairs included in the trash that surrounds the body of this girl that was buried in the dirt underneath her house for 14 months and it won't show anything. MR. BROWNE: Your Honor, I might add to -- MS. WILLIAMS: But -- MR. BROWNE: I'm sorry I didn't mean to interrupt. MS. WILLIAMS: Go ahead. MR. BROWNE: I just might add that you have heard counsel in somewhat vehement tones mention the Frank Lee Smith case and basically counsel is admitting that they were sitting on their hands knowing that there was a potential DNA issue here. These attorneys were representing the appellant since -- Mr. Scher since 1994 and Mr. McClain much earlier so they knew there was material there. They could have had it tested at any time instead they were sitting on their hands and this is nothing more at this point late point in this litigation to delay the execution. There is no reason to believe that testing could exonerate Mr. Tompkins, none at all. It is simply a delay tactic. MR. MCCLAIN: In response, Your Honor, the hair is in the sheriff's office possession. I cannot possibly do testing on hair in the sheriff's possession without a court order and based on the experience of Frank Lee Smith it's quite clear that this precise argument being made now would have been made, the request made six months ago, nine months ago, a year ago, two years ago and still today the State has not given Mr. Tompkins notice of when the clock for making the request started ticking. What day did, what day did it start ticking? What day were we on notice that we needed to make a request for mitochondrial DNA because Florida Courts would allow it and admit it into evidence. And certainly the fact that the legislature is now going to start a clock sometime in the next two months for everybody else who is on death row indicates a recognition that the absence of notice is a problem and so they're going to give the notice and again to rush through Mr. Tompkins' execution before that legislation goes into effect is just ridiculous. THE COURT: Well, my suggestion would be if you're banking on the legislature to pass a law and you're sure of that I wouldn't bank on that. I think if I had any clients in this position I would go ahead and file those motions. In my opinion I don't, it appears to me that the DNA in this case wouldn't prove or disprove anything and I don't at this point in time see a valid compelling reason to order DNA testing so I'm going to deny that motion at this time. MS. WILLIAMS: Judge, we do need to put something on the record. THE COURT: Go ahead. MS. WILLIAMS: When the motion for DNA testing came in and we immediately started looking for the hairs in question and I want to make it clear on the record and to defense counsel that, um, the hairs cannot be located. First of all they are with TPD, it's a TPD case. They came from the Tampa Police Department originally property room and they were sent to the FBI. There is a transmittal letter sending them back to the FBI and Ms. Vollrath and Detective Gene Black went over, went through the entire evidence in both the Lisa DeCarr and Jessie Albach cases which are altogether in one box. There are no hairs. I don't know what happened to them, um, the FBI has searched for them in Washington. Um, we searched for them here. The clerk's office is here to testify that they searched through their evidence from all of the proceedings that have occurred and they are not with the clerk's office and so I just want to let everyone know that the hairs are nowhere to be found. THE COURT: All right. Anything else? MS. WILLIAMS: No, Your Honor, thank you. MR. MCCLAIN: Well, Your Honor, from my understanding we were going to be given an opportunity to inspect and this is just their representation and I don't know if this is under oath testimony or anything like that. We intend to actually look at it and it seems to me if they really felt that then the whole argument leading up to this revelation was kind of pointless. I don't understand why we went through all that if that's the State's position. MR. SCHER: Judge, if I could also point out the following Mr. McClain that again we have sent representatives probably about ten days ago down both to the clerk's office here in Hillsborough County and also he went over to the Tampa Police Department. This was the visit that the state representatives misrepresented to my associate that I had spoken to them and somehow told them the attorney general's office that I had, that I was arranging this visit and when my associate went to the Tampa Police Department again he was given a complete run around. Ms. Vollrath indicated earlier that she went and was given complete access to the evidence in both the Albach case and the Lisa DeCarr case and went through it all. Now we're hearing that earlier somebody said that it may be there and it's not there and now this latest story is it's not there. Obviously we need a complete investigation. I want to know who looked at those, that evidence. When they looked at that evidence. I want logs. I want to know when it could have disappeared and if in fact it has disappeared or where it is in that police department. MS. WILLIAMS: Judge, the reason why I'm just advising everyone is that we have continued to look everywhere we can think of where these things could possibly be. In fact my secretary Ms. Blevins came in and handed me the final document that we got from the FBI just this afternoon after the hearing had already started. We've exhausted all of the places that we know where those things could possibly have been and I think that Mr. or Detective Black is coming back. MS. VOLLRATH: Detective Black is coming back however; Detective Burke is the one that went with me however to TPD. MS. WILLIAMS: Detective Burke is present in the courtroom and he's the case detective and he also went with Ms. Vollrath to look for the hairs in the evidence room at the Tampa Police Department earlier this week. Detective Black is also -- he will be here in a few minutes. He checked out some well, I'm not sure what he did. He took some things out of the property room back in 1990, um, 1990 he checked out a package that was labeled as having been received from FDLE and our only supposition is that possibly that was, that's entered incorrectly here and that could have been a package received from the FBI that's never been logged back in. I don't know, um, if you want to talk to Detective Black when he gets here but that happened in 1990. There is no other records whatsoever of what could have happened to those things. THE COURT: Okay. MR. SCHER: Judge, just to point out for the record I think at this point the State should be providing Mr. Tompkins in writing with all of the efforts they have taken to allegedly try to find this evidence. We're hearing for the first time something was checked out by some detective in 1990 that may in fact be hairs that we're asking for. They contacted the FBI and they had contact with the Tampa Police Department with certain detectives. I think we're entitled to notice of that and opportunity to review what they have done and if go from there because obviously this is a very serious situation particularly in light of this new revelation that something was checked out and never logged back in. Again I mean this is pretty frightening to be honest with you. MS. WILLIAMS: If the Court would like for us to do we can put Ms. Vollrath under oath. She can detail what she's done. She has been the main person who has looked for this evidence since the request came in and they can have a transcript of exactly what she did in order to try to locate it. THE COURT: You wish to inquire now? MR. SCHER: Well, I think, Judge, at this point we probably just need an indication as to exactly who did what and when and proceed from there. If Ms. Vollrath wants to testify right now to exactly the people she contacted but this is just step one in this process if there is in fact is missing evidence in this case, if it's missing at all that's something that needs to be pursued. This is the first time we're hearing about this. THE COURT: Go ahead and put her under oath? MS. WILLIAMS: Yes, sir. THE COURT: All right, Ms. Vollrath, if you'd step up here please, ma'am. Raise your right hand, please, ma'am. Do you swear or affirm testimony you're about to give will be the truth, the whole truth and nothing but the truth? THE WITNESS: I do. THE COURT: Who would like to inquire? MS. WILLIAMS: I'll be happy to. THE COURT: Go ahead. Whereupon, SHARON VOLLRATH, after having been duly sworn to tell the truth, the whole truth, and nothing but the truth, was examined and testified as follows: à ÃDIRECT EXAMINATIONÄ Ä BY MS. WILLIAMS: Q State your name. A Sharon Vollrath. Q Where do you work? A Hillsborough County State Attorney's Office. Q What do you do there? A I am an intake investigator, intake attorney for the Hillsborough County Sheriff's Office for homicides and I also do post-conviction death penalty proceedings. Q And in connection with your responsibilities did you receive a motion for DNA testing and I'm not sure the name or what the title of the motion is but did you receive a request from CCR that put you on notice that they were going to be seeking to have certain hairs analyzed? A Yes, on Friday afternoon approximately two o'clock I believe a fax came into our office regarding DNA testing. I left our office approximately ten minutes of five on Friday afternoon and during my drive home I received a phone call or page from Mr. Bob Landry with the Attorney General's Office. I returned that page from my cell phone in the car where he read to me excerpts of a fax that had been received from the governor's office. I believe what the document that I had received on Friday in the fax was a copy of a letter which CCR had sent to the governor's office and then the governor's office made an inquiry back. I didn't read the inquiry back I am just relating to what I believe was told to me on the phone by Mr. Landry but it was indicated regarding the hair evidence that was sent to the FBI lab. Um, subsequently when I got home I called Mr. Dick Herd an investigator for our office and spoke with him and asked him what he knew about any outstanding DNA evidence in this case. He and I agreed that we would come to the office on Saturday morning. We did. We went through all of our files on Mr. Wayne Tompkins and found no evidence. We did find copies of the FBI reports that were attached to the fax that I originally received from CCR on Friday referencing a 1984 submission to the FBI lab. I believe it was items Q(1) through Q (10). The FBI lab report indicated that regarding items Q(6) and Q(10) that they appeared to be a Caucasian origin which these were two hairs. They appeared to be a Caucasian origin, light brown I believe it said and could be suitable for comparable value. We made efforts to reach Detective Burke who was the lead detective on the homicide investigation regarding Wayne Tompkins and were unable to reach him over the weekend. Monday morning we came in. I made a phone call to the FBI and then later in the day I was able to get through but later in the day I made contact with an Alice Eisenberg of the FBI lab and explained the situation to her. I asked her to conduct a search to see if there would be any evidence outstanding still at their lab or if they could determine when and if the evidence was ever returned to TPD. I also, I don't believe I made direct contact with Detective Burke but someone from my office I don't know if it was Mr. Herd or whomever made contact with Detective Burke and he came in and started going through the police reports to try to determine where this evidence was. Subsequently Detective Burke and I went to the Tampa Police Department's property room and we met with Kirby Rainsberger was there and Sergeant Simonson who is the sergeant in charge of homicides. We -- Kirby Rainsberger had pulled the evidence box and Detective Burke went through that evidence. No hair evidence was found in that box. We also reviewed the logs of evidence that TPD had. Subsequently we have now received a fax that said there's a tracking number of when the hair evidence items Q(1) through Q(10) and microscopic slides and I believe there's one other item mentioned pill boxes were returned to TPD the date of this is January -- I saw it earlier I believe, January 9th, 1985 and there is a tracking number by registered mail. That was just received by office this afternoon. We have looked through the log books at TPD and there is an entry in that the log books sometime after 1-9-85 I believe that says a sealed envelope from FDLE was entered into evidence not FBI and then subsequently there is an entry in 1990 it is not, it is just handwritten entry that says that Detective Gene Black who is a homicide detective checked out a sealed package from this case. It doesn't say where it went to and then we find no subsequent re-entry of that evidence. I believe that's my sum dealing with trying to make contact to verify where the hair evidence could be. I'm sorry that's not correct, I apologize. This morning I went across the street to the clerk's office and I met with Mr. LaPeer and I went through the clerk's evidence of the evidence that was entered into in court during the proceedings and I found no hair evidence and Mr. LaPeer is here today regarding testimony from the clerk's office as whether they have ever had control or custody of this evidence. THE COURT: All right. Any questions? MR. SCHER: Yes. THE COURT: Go ahead. à ÃCROSS-EXAMINATIONÄ Ä BY MR. SCHER: Q You indicated at first that you received your office received the motion last Friday I believe it was around two p.m.? A I received the fax from CCR regarding the DNA evidence. I think it was your letter now that I'm thinking about it, I think it was your letter, it was referencing the DNA hair evidence. Q Okay. Then you indicated you received a page on your way home from Mr. Landry regarding some information he received from the governor's office? A Regarding, yes, I assumed it was a fax that he received from the governor's office. Q Did he read you the fax? A He read me, I don't recall if he read me the entire fax. I know that he read me bits and pieces of it. I can't say whether it was the entire fax. Q What to your recollection what was the contents of that fax that he read to you? A The contents was that the governor's office was making an inquiry to our office regarding -- I took it as a response to the letter that you had sent to the governor's office earlier that day or at least they had received it earlier that day regarding your request for appointment of clemency counsel because of and needed to have this DNA testing done and saying the governor's office had said that they would not sign a death warrant if there was outstanding DNA testing to be done so the governor's office was inquiring of our office was there in fact DNA evidence outstanding. Q And did you ever subsequently or receive a copy of that fax from the governor? A I believe a copy was sent to our office. I don't recall that I ever actually read that fax but it was my understanding that our office did receive it. Q And did you respond to the governor's office or do you know of whether anyone else responded? A I believe that there has been. I don't know, I don't believe there's been a written response. I'm not aware of a written response but I do believe contact has been made to say that we were inquiring into this evidence, this alleged evidence. Q Do you know who made that contact? A No, I don't know who made that contact. Q Do you know whom the contact was made in the governor's office, who was spoken to? A I believe it may have been a Wendy Berger and I'm not certain for that but I believe that may have been the person. Q Do you recall when that was made that subsequent contact? A Sometime this week. Q Now, you indicated that you and Detective Burke I believe it was probably the following Monday or maybe some point after that actually went to the Tampa Police Department? A That's correct. Q And Mr. Rainsberger and Sergeant Simonson were there? A That's correct. Q And you pulled the evidence box? A Actually it was already there with Mr. Rainsberger when we arrived there. Q And how is the evidence box identified? A It has a case number on it and I can't tell you whether it's the court case number or the agency number there is a number on the outside of the box. Also on the outside of the box is written the names of Albach and DeCarr. Q On the same box? A On one box. Q Okay, and what was in that box? A I actually would rather that inquiry be made to Detective Burke because I did not personally go through and touch each item. I didn't make an itemized list of what I found or of what was found in there. I stood there as Detective Burke went through it. Q Did he make a list to your recollection? A I can't say that I recall him making a list. Q And he is still an active duty member of the Tampa Police Department? A No, my understanding is that Detective Burke has left the Tampa Police Department. I don't know, he retired presumably and went to the sheriff's office and is working as a CSO over there I believe for the homicide unit. Q So the fact that you indicated earlier that there was no hair evidence found in the box that comes from what you were told because you did not go through -- A No, I was there, I mean, if he had found hair evidence he would have said, we found hair evidence but all I am saying is I don't remember with particularity each item that was in the box. I know that there was an envelope with Lisa DeCarr's evidence and then there was something else regarding Ms. Albach and I do not recall the specificity what exactly was there. Q Were all the envelopes in both cases opened? A No, they were all sealed. Q They were all sealed? A Absolutely. Q You didn't re-open them to see if anything was in there? A Detective Burke re-opened them. Q Detective Burke did re-open them in both cases? A In both cases, yes. Q This morning, you said that this morning you also went to the clerk's office here in Hillsborough to check for hair evidence. Did you have any basis to believe that hair evidence could actually be at the clerk's office? A I didn't have a basis but I also didn't have a, I just wanted to make sure that we had looked everywhere for this evidence. Q Okay. Has any effort been made to get in touch with Detective Gene Black? A Detective Gene Black is sitting in the courtroom. Q Oh, okay, great. You also referred to documents that you received this afternoon dated January 9th, 1985, I believe. A This is the document we received this afternoon. I spoke with Mr. Carey Oien, O-I-E-N of the FBI. Ms. Alice Eisenberg who I spoke with initially told me that Mr. Carey Oien was now the person in charge of trace evidence at the FBI lab. He verbally told me that he had a document showing a transmittal to our office. He told me 1-9-85 and he gave me a tracking number. He actually faxed it three different times because of the illegibility that we were getting. This was the first document that I received this morning around eleven o'clock. He told me the date of 1-9-85 and I'm looking on it to find that date. Oh, I'm seeing it, it's a stamped date one, actually this 1-8 is when it's stamped. Q That's a document from the FBI crime lab? A It was a document sent to me from the FBI crime lab. MR. SCHER: Can I See that, Judge? Judge, if I can just have this marked and put into evidence for purposes of this hearing? THE COURT: Sure. MR. SCHER: In fact this document I've never seen. I just want to make sure for the record. THE COURT: Any objection? MS. WILLIAMS: No, Your Honor. THE COURT: We got some evidence tags over here. THE COURT: How do you want it marked? MS. WILLIAMS: State's Exhibit Two. THE COURT: All right, it will be so received. BY MR. SCHER: Q You indicated also that there was a copy or a page from a log that showed that this item was removed? A Well, -- Q Than an item was removed? A An item was removed. I cannot say that this is hair evidence and in fact there actually is nothing on this log to say that it's anything from the FBI. This page says one sealed package. I believe it says reviewed from and then it gives a case number and I assume to be the FBI case number, Black, pin number and then some initials and date, 6-28-90. MR. SCHER: We would like this marked at this point as well. MS. WILLIAMS: If it's marked State's Exhibit Three. THE COURT: Sure, it will be so received. BY MR. SCHER: Q Again, this is just to clarify this is just one page from their entire log? A From their log book. I did not personally make that copy. I had asked Kirby Rainsberger on the telephone if he would make me a copy of the log sheets and I received that this morning. Q So he made a copy of everything and just sent you this one sheet? A He just gave me the one sheet. Just to clarify, when Detective Burke and I went to the TPD evidence room Sergeant Simonson was there, there was also two TPD evidence clerks. I don't know how you would describe them but there were two females there also there. Q Okay. Do you have any knowledge as to why the evidence in the DeCarr or Albach cases would have been checked out in 1990? A No. Q Do you also have copies of the faxes or other written correspondence between the state and the governor's office in this case? A I don't believe I personally have that. I believe our office has it somewhere but I don't personally have it. Q Would you be able to fax me a copy today? Do you have an objection to that? THE COURT: A copy of what? MR. SCHER: I have received no copies of any correspondence between the governor's office and the State of Florida that followed up on my letter to the governor last Friday and the fact as I think Mr. McClain indicated earlier that I did call Ms. Berger again yesterday as to today's hearing to see if the governor's position had changed or they had actually in the governor's spokesperson's statement to the press they indicated that they were reviewing my letter and would make some other determinations at some point and I received nothing else from them and there's been no phone call back and I'm just curious to the nature of the contents of the conversation or the correspondence to the governor and the State. THE COURT: Ms. Williams? MS. WILLIAMS: Your Honor, I have seen the letter but I did not read it. It's up in Mr. Ober's office. I don't -- it's addressed to him. I don't see any reason why it can't be provided if it's -- THE COURT: Okay, if there's any problem let me know. MS. WILLIAMS: Yes, sir. THE COURT: Anything else of this witness? MR. SCHER: No, Judge, thank you. THE COURT: Thank you, Ms. Vollrath, you can have a seat. All right, anything else on this matter? I think I basically ruled on the motion for DNA testing already. MS. WILLIAMS: Judge, the only thing we have is Detective Burke and Detective Black are here and I would like the record to reflect that. THE COURT: Okay. MR. SCHER: I think I would like to question Detective Black. THE COURT: Detective, you want to step on up. Raise your right hand, please, sir. Do you swear or affirm testimony you're about to give will be the truth, the whole truth, and nothing but what the truth? THE WITNESS: I do. THE COURT: You can put your hand down. If you'd state your name for the record and spell your last name. THE WITNESS: Sure, Aubrey E. Black, B-L-A-C-K better known as Gene Black. THE COURT: You may inquire. Whereupon, AUBREY BLACK, after having been duly sworn to tell the truth, the whole truth, and nothing but the truth, was examined and testified as follows: à ÃDIRECT EXAMINATIONÄ Ä BY MR. SCHER: Q Good afternoon. A Good afternoon. Q Could you please tell me what your current position is? A I'm a homicide detective with the City of Tampa Police Department. Q How long have you been with the Tampa Police Department? A Twenty-three years. Q And how long have you been a homicide detective? A Seventeen. Q Now at any point as a detective with the Tampa Police Department were you involved in the investigation into the death of Lisa DeCarr? A I had no involvement in that investigation at all. Q How about the death of Jessie ALBACH, A-L-B-A-C-H? A I had no involvement in that investigation at all. Q Were you involved in any way into the -- are you aware there has been a number of missing young women around the same time in the Tampa area? A Yes, sir. Q Were you involved in any of those cases? A There were other cases I was involved in yes, sir. Q Do you remember which ones? A Linda Muse was a black female I believe back in 1986, a Jeanette Miriam also probably in '85 or '86. There may be several others but I can't recollect right now but I was involved in several of the what we called and previously mentioned serial murders. Q Okay, but nothing in terms of DeCarr or Albach? A No, that's correct. Q Were you aware that Detective Burke had been working on those cases? A Yes, I was. Q Now I'm showing you what has been marked as State's Exhibit Number Three which is a sheet from the Tampa Police Department property ledger. A Yes. Q Highlighted there is -- are you aware of this? Have you seen it before? A Yes, I saw this yesterday for the first time. Q And in fact half way down there's a highlighted entry Albach, DeCarr? A That's correct. Q One sealed package and released to -- are you the Black there with the number? A That's my pin number but that's not my signature or my hand. I can only assume that this was made by someone else. Q Okay, so somebody else actually -- A Wrote in my name, that's correct, but that is my pin number. Q Okay. Do you know who R.J. is under the by, it looks like probably somebody in the property room? A It looks that would be the person that probably made notations in the log. I don't know who the R.J. is though. Q Do you have an independent recollection of receiving or having this property released to you? A No, sir, because I was never involved in the case. Q Okay. Do you an have explanation as to how your name and badge number would appear here? A I thought about this yesterday. There are a number of scenarios it could be. There's another Detective Black who works in larceny and I would tend to believe that he would probably get rid of -- he's in larceny so there's a statute of limitations in a lot of their cases. They have five or six years and they normally get rid of evidence. Now if he came in and maybe this was stuck under his name and he got rid of it and then my, I'm only the Black in homicide so maybe would have realized they didn't have a pin number which they should have and they saw Black, Black homicide and they assumed and that's only an assumption on my part. Q Well, neither of these cases were larcenies? A That's correct, they were both homicides so I don't know how that was done but I don't ever remember being involved or getting rid of evidence that's not even mine to get rid of and that's not assigned to me at all. Q Has this -- is this something that has been reported to the police department in terms of looking into how somebody would falsely put you down as having received evidence in these murder cases? A This is the first time I have ever seen this occur. I've seen it in other cases when someone orders blood work and it goes from the medical examiner's office to FDLE and they don't have a particular name of a detective assigned. They assume if it's a homicide they will put my name on it and it will come back to me and I haven't been assigned the case. I've known two cases where this has occurred. Of course this is not in regard to this case in particular but if they did that there that might have been an assumption here and that's only my assumption on what occurred. But I don't have any independent recollection of ever getting rid of Lisa DeCarr or Albach evidence. In fact that would have been in my interview because I wasn't assigned the case and there would be no reason why I would get rid of that. Q Do you have any information after you found out about this I believe you said was yesterday did you talk to anybody about who could have gotten the evidence? A It was brought to my attention by Sergeant Simonson to review the evidence and property and he asked me my recollection of it and I said unless I wrote a supplement to the case then obviously and apparently they reviewed the package or the investigation which I think you have now there is no supplement in it in regards to me even looking at this evidence or getting rid of it so I can't explain it. Q Okay, can I have just a second? Just to clarify have you reported this matter to your superior or people who would look into this? A Sergeant Simonson is aware of it and he brought it to my attention so he's aware of that. I didn't document it by signing my signature to it. That's not my hand. It is my pin number and you know I don't have any recollection of it but it was brought to Sergeant Simonson's attention and he's my immediate supervisor. Q Okay, to your knowledge has anything happened from after you informed him that, did anything else happen? A I think they're going through every piece of evidence available to see if they can locate this missing piece and so far it's negative. Q But has there been any, Sergeant Simonson conducting an investigation or has he notified anybody else in terms of, you know, your name being falsified on this log? A I don't know. I can't say. Q You consider this a pretty serious matter? A Well, obviously when it's involving a human life I would take it very serious. Q Somebody putting your name and pin number? A Well, I didn't that's not my signature. Q Just to clarify the pin number is what? A The pin number is my I.D. number. At the department every single sworn officer has an I.D. number and in which we place evidence in so we can -- even if your name is scribbled like a doctor on a prescription bottle or something of that nature you can't understand exactly what the name is, the I.D. number tells you who that person is. Q Like some police departments use badge numbers? A You can use badge numbers but sometimes when an officer leaves for one reason or another his badge number may be re-assigned to another person coming on the part so it's a