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>> THE NEXT CASE ON THE COURT'S AGENDA IS RODRIGUEZ VERSUS STATE AND RODRIGUEZ VERSUS McNEIL. >> CHANGE THE POSITION. >> MISS ECKERT. >> HERE ON BEHALF OF MANUEL RODRIGUEZ. FOLLOWING EVIDENTIARY HEARING AFTER THE COURT REMANDED THE CASE IN 2008 FOR FURTHER EVIDENTARY PROCEEDINGS. I'M ASKING FOR A NEW TRIAL. NOW THAT WE HAD TWO EVIDENTIARY HEARINGS IN THIS MATTER, THERE IS SUFFICIENT EVIDENCE ON THE RECORD WITHOUT REGARD TO SOME OF THE CREDIBILITY FINDINGS THAT THE TRIAL COURT MADE, IF WE LOOK AT FACTS NOT IN DISPUTE, THE EXTENT OF THE DUE PROCESS VIOLATIONS AND THE STATE'S MISCONDUCT IN THIS CASE IMPACTS THE RELIABILITY AND INTEGRITY OF THE TRIAL. WE'RE SEEKING REMAND FOR A NEW TRIAL OR AT VERY LEAST FOR A NEW PENALTY PHASE. >> I'VE READ IN YOUR TWO EVIDENTIARY HEARINGS AND IN YOUR BRIEF YOU HAVE RAISED MANY, MANY ISSUES AND WE HAVE HAD ONE ORAL ARGUMENT. AS YOU SAID WE HAD A REMAND. AND AS I UNDERSTAND THOSE, THE BASIC FACTS OF THIS CASE IS
MANUEL RODRIGUEZ NEVER DENIED BEING INVOLVED. HE SAID HE WAS A LOOKOUT, CORRECT? HE WAS A LOOKOUT? >> TO SOME EXTENT, YES. >> AND HE IS, HE WAS THE, THE APARTMENT, HE LIVED RIGHT NEXT TO THE VICTIM. >> YES. >> WE DON'T SAY THAT IN OUR DIRECT APPEAL BUT HE KNEW THE VICTIMS? >> YES. >> YOUR THEORY AT TRIAL THAT LUIS WAS INVOLVED AND PLED TO SECOND‐DEGREE MURDER AND HE AND HIS BROTHER ISIDORO COMMITTED THIS? >> YES. >> THAT WAS THE THEORY OF THE CASE WHEN IT WAS TRIED? >> YES. >> YOU RAISE A FEW POINTS BUT GIVE US A FEW POINTS THAT ESTABLISHED PREJUDICE AND THAT UNDERMINED CONFIDENCE IN THE OUTCOME OF THE GUILT PHASE BECAUSE I THINK WE'RE FOCUSED ON THE GUILT PHASE. >> BEFORE I GET INTO THE ISSUES WITH LUIS RODRIGUEZ AND IZZY, WITH REGARD TO THE BURDEN SHIFTING ARGUMENTS THE PROSECUTION MADE THE PRIMARY ISSUE IS THE CONFESSION AND HOW
THAT IMPACTS THE PREJUDICE. >> I THOUGHT YOU WERE GOING TO TALK ABOUT THINGS THAT CAME OUT ‐‐ NEW EVIDENCE THAT WAS, BECAUSE IT IS VERY HARD FOR US TO SAY, YOU SORT OF DID THIS IN THE LAST CASE BUT SOMETHING WAS RAISED BUT IT WASN'T DONE AS WELL AS COULD HAVE BEEN. >> CORRECT. >> I UNDERSTAND YOU HAVE THOSE ARGUMENTS. BUT FOR OUR TIME I GUESS REALLY FOCUSING ON THINGS LIKE, SERVICE CLAIM LOOKED LIKE IT COULD BE SOMETHING SUBSTANTIAL. THERE IS NO QUESTION IN MY MIND THE PROSECUTOR SHOULD HAVE TURNED THOSE LETTERS OVER. BUT THE QUESTION I HAVE IS ONCE HE TESTIFIED, WHERE'S THE PREJUDICE? THEN YOU HAVE A LOT OF INFORMATION, YOU RAISED ABOUT ISIDORO. BUT HE HAD AN IRONCLAD ALIBI WHERE HE WAS IN ORLANDO AT THE TIME OF THESE MURDERS AND NOTHING CHANGES THAT. SO YOU RAISED A LOT OF THINGS. AGAIN, I'M NOT CRITICIZING YOU FOR IT BUT I'M TRYING, WHEN WE FINALLY DO LOOK AT THIS, SORT OF LIKE WHERE'S THE BEEF? WHERE'S THE ESSENCE NOT JUST THAT THERE WERE A LOT OF ERRORS
AT TRIAL AND TRIAL COUNSEL COULD DONE BETTER BUT WHAT DOES THE EVIDENCE SHOW THAT YOU WOULD INTRODUCE AT A NEW TRIAL THAT WOULD, YOU KNOW, CHANGE THE OUTCOME OF THIS CASE OR UNDERMINE THE CONFIDENCE IN WHAT HAPPENED IN 2000? >> I THINK, ALTHOUGH WE DID RAISE INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS, THE PRIMARY ISSUE IS THE BRADY VIOLATIONS, INFORMATION TRIAL COUNSEL DIDN'T HAVE. THE TRIAL COUNSEL TESTIFIED WITH RESPECT TO ISIDORO, THEY DID QUESTION ISIDORO RODRIGUEZ AS TO HIS ALIBI. HIS ALIBI IS HE WROTE HIS OWN CALENDAR WHERE HE WAS IN ORLANDO. HE WAS INITIALLY A SUSPECT. THERE'S EVIDENCE IN THE RECORD THAT RALPH LOPEZ WENT TO HIM AND TO QUESTION HIM WITH REGARD ‐‐ >> BUT NOTHING YOU HAVE TRIED, YOU HAVE PUT ON CHANGES THE STRENGTH OF THE ALIBI. NOTHING THAT I CAN SEE ABOUT ISIDORO, HE HAD A RELATIVE IN THE POLICE DEPARTMENT IN MIAMI. OR THAT, HE WAS INVOLVED IN AS A WITNESS IN THIS MURDER WOULD BE EVEN ALLOWED AS IMPEACHMENT.
I MEAN IF YOU HAD PRODUCED SOMETHING THAT SHOWED, BECAUSE I THINK THIS JEWELRY ISSUE IS SOMEWHAT STRANGE, YOU KNOW, THAT, HE HAD PAWNED THE JEWELRY. >> RIGHT. >> NOW WE HAVE A WHOLE DIFFERENT ISSUE. OR IF WILLIE SIRVAS TESTIFIED THAT LUIS TOLD HIM DETAILS TO SET UP MANUEL. THERE IS, THESE ARE CREDIBILITY ISSUES. >> THE JURY HAD TO BELIEVE THAT ALIBI WAS IRONCLAD AND I BELIEVE THEY COULD HAVE QUESTIONED ISIDORO ABOUT HIS RELATIONSHIP WITH THE POLICE, WITH METRO DADE POLICE THAT WAS INVESTIGATING ISIDORO AS A SUSPECT. THAT WOULD HAVE BEEN SOMETHING HE COULD HAVE QUESTIONED HIM ABOUT. WHETHER HE COULD HAVE QUESTIONED HIM ABOUT WITH ANDRE ROMAN AND DRUG DEALING AND ALL THESE GUNS, I AGREE WITH THE STATE THAT MIGHT BE COLLATERAL SHOES HE COULDN'T IMPEACH HIM WITH. THIS SHOULD BE INFORMATION TRIAL COUNSEL HAD TO FOLLOWED UP ON FACT THAT ISIDORO WAS IN FACT A SUSPECT.
THE STATE PUT ISIDORO OUT THERE AS IF HE IS INNOCENT BROTHER WHO HAPPENED HAVE THE JEWELRY. THE TRUTH IS HE IS INITIALLY WAS A SUSPECT AND WE DIDN'T KNOW AT THE TIME OF THE TRIAL HOW SERIOUS THAT REALLY WAS. WE DON'T KNOW ‐‐ >> HE WAS A SUSPECT IN THIS MURDER? >> YES. >> I THOUGHT YOU WERE TALKING ABOUT HE WAS SUSPECT IN THE ROMAN MURDER? >> IN THIS MURDER. SOME OF THAT WASN'T, DETECTIVE GELTON ADMITTED THAT AT THIS EVIDENTIARY HEARING IN 2008. AND THEN WHEN THEY GAVE HIM THE CALENDAR, IT'S WHEN THEY SAID OKAY, WE'RE GOING TO CLEAR HIM. BUT THE JURY ‐‐ >> WHAT WOULD HAVE A DEFENSE ATTORNEY DONE, ASSUMING THAT THE DEFENSE ATTORNEY SAYS, OKAY, AT ONE POINT, THE POLICE WAS LOOKING AT MR.^ISIDORO. >> RIGHT. >> AND WAS QUESTIONING HIM, THEN WHAT? YOU SEE, THE THING IS, AS JUSTICE PARIENTE SAID, THERE IS A LOT OF THINGS THAT SORT OF THROWN OUT THERE, BUT IN MY MIND THERE IS NO REAL
CONNECTION ABOUT HOW THESE ITEMS MAKE A DIFFERENCE IN THIS TRIAL. >> THEY, THE TRIAL COUNSEL TRIED TO SHOW THAT ISIDORO WAS A SUSPECT. TRIAL COUNSEL TRIED TO SHOW LUIS AND ISIDORO WERE IN CAHOOTS. >> WHAT INFORMATION HAVE YOU SHOWN THAT THEY WERE IN CAHOOTS? WHAT HAVE I PRESENTED IN THIS EVIDENTIARY HEARING THAT CONVINCES THAT HE WAS IN CAHOOTS WITH THE OTHER? >> I DON'T THINK THAT I NECESSARILY HAVE TO PROVE THEY WERE IN CAHOOTS. I THINK I HAVE TO PROVE THAT THERE IS INFORMATION THAT THE JURY SHOULD HAVE HEARD THAT WOULD HAVE ALLOWED THEM TO EVALUATE THE CREDIBILITY OF THESE TWO WITNESSES DIFFERENTLY. >> YOU HAVE VERY LIMITED TIME. >> RIGHT. >> GIVE ME, YOU KNOW YOU SAID SOMETHING ABOUT HIM BEING A SUSPECT IN THIS CASE AND THAT WASN'T DISCLOSED. >> RIGHT. >> I TRIED TO REVIEW ALL THE BRIEFS, EVERYTHING, ALL THE ORDERS, WHERE, THAT PARTICULAR
ISSUE, THAT HE WAS A SUSPECT AND THAT WASN'T DISCLOSED AND THAT WAS BRADY, WHAT CLAIM WAS THAT AND WHEN WAS THAT LIITGATED? >> THAT WAS DISCLOSED. THE FACT HE WAS INITIALLY A SUSPECT, THAT CAME OUT AT TRIAL THAT HE WAS INITIALLY A SUSPECT. >> WHAT I'M ASKING YOU, WHAT, YOU SAID SOMETHING ABOUT THE FACT THAT HE HAD A RELATIVE WITH THE POLICE DEPARTMENT. >> CORRECT. >> I DISAGREE WITH YOU THAT IS EITHER BRADY OR THAT HAD TO BE DISCLOSED. BUT LET'S ASSUME THAT SHOULD HAVE BEEN DISCLOSED, THE RELATIONSHIP WAS NOT WITH ANYONE INVESTIGATING THIS CASE. WHAT ELSE BESIDES, WITH ISIDORO AS FAR AS WHAT ELSE SHOULD HAVE BEEN DISCLOSED THAT COULD HAVE IMPEACHED HIM? BECAUSE HE CERTAINLY HASN'T RECANTED NOR HAS HE TOLD SOMEBODY SOMETHING DIFFERENT THAN HE TESTIFIED TO ORIGINALLY. >> NO, OBVIOUSLY I TALKED ABOUT THE ISSUE WITH THE ROMAN AND ISSUE HE HAD BEEN INVESTIGATED. OBVIOUSLY WE KNOW HE WAS INVOLVED IN NARCOTICS AND STATE
PRESENTED HIM AS THIS KIND OF BOY SCOUT. >> ARE YOU TELLING ME OR THIS COURT THAT KIND OF VAGUE INVOLVEMENT COULD HAVE BEEN USED TO IMPEACH ISIDORO? >> NO. THAT IS KIND OF INFORMATION WOULD HAVE LED TRIAL COUNSEL TO INVESTIGATE FURTHER. I THINK IN THE ROGERS CASE ‐‐ >> BUT WHAT WOULD THEY HAVE THEN, YOU KNOW, YOU HAVE BEEN LITIGATING THIS CASE ON POST‐CONVICTION SINCE, FOR FIVE YEARS. WHAT ELSE COULD HAVE COME OUT? WE GAVE YOU ANOTHER CHANCE TO DO ALMOST ANYTHING YOU WANTED TO SHOW. >> THE OTHER ISSUE THOUGH EVEN IN 2004 THIS COURT, THE LOWER COURT DENIED OUR ABILITY TO QUESTION A LOT OF THE WITNESSES BASED ON THE GREEN CASE. WE NOW HAVE THE EVANS CASE THAT BASICALLY SHOWS I SHOULD HAVE BEEN ALLOWED TO USE THOSE DEPOSITIONS IN TERMS OF WHAT TRIAL COUNSEL DID HAVE AVAILABLE. IF YOU LOOK AT RALPH LOPEZ'S DEPOSITIONS, THAT WAS NOT CONSIDERED BY THE LOWER HE TALKED ABOUT SEEING ISIDORO WITH VERY EXPENSIVE JEWELRY AFTER THE CRIME.
WHEN ISIDORO TALKED AT TRIAL, SAID HE HAD COSTUME JEWELRY AND SOME COINS. WE KNOW THERE WAS EVIDENCE AVAILABLE TO TRIAL COUNSEL THAT ISIDORO HAD THE JEWELRY. >> I KNOW THERE WAS SOME ISSUES OF DEPOSITIONS. >> RIGHT. >> BUT HAVE YOU RAISED IN THIS NEW CASE THAT THERE WAS DEPOSITIONS OF SOME, OF A PARTICULAR PERSON THAT WOULD HAVE SHOWN THAT ISIDORO HAD POSSESSION OF JEWELRY? >> THAT WAS AT THE PRIOR HEARING, IN 2004 AND IN THIS CURRENT CASE I ASKED THE LOWER COURT TO OVERTURN THAT RULING AND IT WAS DENIED. >> AND LOPEZ, THE LOPEZ DEPOSITION IN OUR RECORD? >> YES. IT'S AT 2101 TO 2108 WHERE HE TALKS ABOUT THE JEWELRY. AND VIRGINIA NIMER AT 1751 TALKED AT TRIAL TALKED ABOUT THE JEWELRY MISSING AND ISIDORO SUPPOSEDLY ONLY HAD COSTUME JEWELRY AND THAT IS ALSO IN THE RECORD. AT SOME POINT HE HAD VERY EXPENSIVE JEWELRY. THAT WASN'T PROVEN IN 2004 BECAUSE THE LOWER COURT WOULD NOT CONSIDER THOSE DEPOSITIONS AND I THINK THAT IS CLEARLY AN
ERROR. THIS COURT CAN LOOK AT THAT THIS IS INFORMATION TRIAL COUNSEL SHOULD HAVE HAD. WITH RESPECT TO WILLIE SIRVAS THE TRIAL COURT FOUND HE WAS NOT CREDIBLE. BUT AS EUGENE SANOVY SAID, THAT IS INFORMATION SHOULD HAVE BEEN AVAILABLE TO THE JURY AND TRIAL COUNSEL. TRIAL COUNSEL SAID IF THEY HAD KNOWN BY WILLIE SIRVAS WOULD HAVE GONE OUT TO THE JAIL AND TALKED TO OTHER PEOPLE IN THE CELL AND THAT INFORMATION NOT AVAILABLE. >> I'M GOING TO ASK THE STATE ABOUT THIS. I HAVE A PROBLEM IF IT SHOULD HAVE BEEN DISCLOSED IN 1996, AND THEN BY THE TIME THEY DEPOSE WILLIE SIRVAS 12 YEARS LATER, IN HIS TESTIMONY HE DIDN'T KNOW DETAILS OF ANYTHING HE SAID HE WAS GOING TO LIE. >> I AGREE. BUT I THINK WILLIE SIRVAS GOES TO SUPPORT OR HIS INITIAL STATEMENTS GO TO SUPPORT THE VERACITY OF LUIS. HE DID GET SPECIAL FAVORS. ONE OF THE KEY THINGS THAT OUT IN 2004 HEARING WE KNOW AT TRIAL THE JURY WAS AWARE THAT LUIS GOT SPECIAL FAVORS.
THEY DIDN'T KNOW THAT HE, WAS ALLOWED TO HAVE SEX WITH HIS WIFE BUT THEY DID KNOW HE GOT SPECIAL FAVORS. WHETHER OR NOT THAT'S TRUE, THE TRIAL COURT FOUND THAT LUIS IS NOT CREDIBLE. TRIAL COURT FOUND ISIDORO'S STATEMENTS HE WAS THREATENED NOT TO CREDIBLE. BUT THE ISSUE WITH THAT IS THAT STATE ATTORNEY, MR.^LAESER ARGUED SPECIAL VISITS WERE OF NO CONSEQUENCE. THAT IS VERY IMPORTANT BECAUSE TRIAL COUNSEL WAS TRYING TO ATTACK THE CREDIBILITY OF LUIS RODRIGUEZ BUT ON CLOSING ARGUMENT THE STATE ATTORNEY SAID THOSE WERE NO CONSEQUENCE OR BIG DEAL BUT LATER HE ADMITTED TO BENEFIT OF LUIS THAT THEY WERE ALLOWING SPECIAL BENEFITS FOR A REASON TO KEEP HIM A COOPERATING WITNESS. SAME THING WITH ISIDORO, IN CLOSING ARGUMENT THIS COURT FOUND ON DIRECT APPEAL THAT THE STATEMENTS, THERE ARE TWO DEFENDANTS. WE HAVEN'T HEARD ANY TESTIMONY THERE WAS SECOND PERSON INVOLVED IN THIS CRIME. WAS A BURDEN SHIFTING AND A COMMENT ON RIGHT TO REMAIN SILENT. YET WE NOW KNOW THERE WAS MORE
EVIDENCE THAT ISIDORO MIGHT HAVE BEEN INVOLVED. YOU CAN'T JUST LOOK AT, I DO UNDERSTAND THAT OF THESE THINGS YEARS LATER, IT IS ALMOST IMPOSSIBLE TO GO BACK YEARS LATER AND PIECE TOGETHER THE INFORMATION THAT TRIAL COUNSEL SHOULD HAVE HAD AT THE TIME. BUT WHEN YOU LOOK AT IT COMBINED WITH THE ERRORS ON DIRECT APPEAL I THINK IT IS UNDERMINES CONFIDENCE IN THE OUTCOME FROM THE ORIGINAL TRIAL. AND I THINK THAT'S ONE OF THE MAIN, ONE OF THE MAIN ISSUES IN TERMS OF LOOKING AT THE PREJUDICE. WE ALSO KNOW THAT THE STATE ATTORNEY RELIED ON SOME OF THE STATEMENTS OR ARGUED IN CLOSING ARGUMENT THAT SOME OF THE STATEMENTS ABOUT MARIA MALAKOFF, STATE ARGUED WAS SUBSTANTIVE EVIDENCE, NOT IMPEACHMENT. THAT WAS ISSUE RAISED IN THE HABEAS. IF WE LOOK AT ALL EVIDENCE USED AGAINST HIM ALL WE HAVE LEFT IN TERMS OF UNIMPEACHED INFORMATION IS MY CLIENT'S STATEMENTS. WHILE HE EVENTUALLY DID GIVE A STATEMENT HE WAS PRESENT I
DON'T THINK WE CAN RELY ON, NOT SUFFICIENCY OF THE EVIDENCE TEST WHETHER HE GOT A FAIR TRIAL. >> HE WAS COMPLETELY IMPEACHED AT THE ORIGINAL TRIAL. I MEAN, THE GUY WAS, HE ADMITTED TO SHOOTING ONE OF THE VICTIMS. HE ADMITTED TO GETTING A DEAL. HIS DISCUSSION ABOUT FAVORS WAS, EXTENSIVE. AND SO, IF YOU, IT'S NOT AS IF, IF YOU HAD A SITUATION WHERE NOTHING WAS DISCLOSED ABOUT LUIZ AND NOW WE'RE TALKING ABOUT, WOW!, WE HAVE ALL THIS IMPEACHMENT, I UNDERSTAND WHAT YOU'RE SAYING. I HATE TO GO BACK TO THE JEWELRY, BUT, YOU'VE THROWN OUT A COUPLE OF THINGS BUT IT JUST DOESN'T SEEM TO ME TO BE THE KIND OF EVIDENCE THAT WOULD, EVEN ON TOP OF WHATEVER WAS DISCUSSED AT THE TRIAL, WOULD PUT THIS CASE IN A FAVORABLE LIGHT. >> WELL, I THINK THAT THIS COURT'S DECISION IN CARDONA MAKES THE POINT WHETHER OR NOT THE CODEFENDANT OR WITNESS IMPEACHED AT TRIAL, IF THERE IS SOMETHING ADDITIONAL, MAKES IT WORSE. NOT THAT IT DOESN'T MATTER, IT MAKES IT WORSE.
>> IN CARDONA, IT WAS A SERIES OF STATEMENTS THAT THIS PERSON, THE CODEFENDANT HAD MADE. I MEAN I KNOW THAT CASE VERY WELL. THIS IS NOT A CARDONA SITUATION. >> EVEN THOUGH, EVEN THOUGH SOME OF THE INFORMATION WITH REGARD TO LUIS WAS IMPEACHED, TRIAL COUNSEL WENT AFTER LUIZ RODRIGUEZ BUT STATE ATTORNEY TOOK THAT AWAY WITH ARGUMENT THAT WASN'T TRUE. DETECTIVE CRAWFORD, THERE WAS NO REASON TO GIVE HIM VISITS. JUST CHRISTMASTIME. LATER AT EVIDENTIARY HEARING, OF COURSE WE WERE DOING THAT. YOU KNOW, WE WANTED HIM TO CONTINUE TO BE A WITNESS. SO EVEN THE TESTIMONY FROM THE DETECTIVE WAS DIFFERENT IN TERMS OF WHY. AND ABRAHAM LAESER HAS TOLD THE JURY THAT THE SPECIAL FAVORS WERE OF NO CONSEQUENCE AND WE KNOW THAT IS NOT TRUE. EVEN THOUGH LUIS WAS IMPEACHED THE JURY BELIEVED THE PROSECUTOR'S STATEMENTS. >> NO CONSEQUENCE AS TO WHETHER LUIS WAS ESSENTIALLY TELLING THE TRUTH. >> RIGHT. >> I DON'T KNOW ABOUT LUIS BUT I
KNOW THERE IS STUFF ABOUT SEXUAL FAVORS THAT LUIS WOULD LIE AND PUT IT ON MANUEL BECAUSE HE WAS HAVING SEX WITH HIS WIFE? >> I THINK TRIAL COUNSEL WAS CLEAR, THEIR WHOLE CASE WAS BASED ON IMPEACHING LUIS AND ISIDORO. THAT IS WHAT THE WHOLE THEORY OF DEFENSE WAS. ANY FURTHER INFORMATION THEY HAD WOULD HAVE GONE TO IMPEACH BOTH LUIS AND ISIDORO. THIS COURT DID FIND THERE WERE NUMBER OF ERRORS ON DIRECT APPEAL WITH RESPECT TO REFERENCE TO LATERAL CRIMES AND TO SOME OF THE BURDEN‐SHIFTING ARGUMENTS. IF WE LOOK AT THE PREJUDICE HERE, IT HAS TO BE CONSIDERED, TOGETHER. WE CAN'T JUST LOOK AT, INDIVIDUALLY WITH LUIS OR INDIVIDUALLY WITH ISIDORO. SOME OF THESE ISSUES MIGHT BE MINOR IN TERMS OF WHAT IT WOULD HAVE SHOWN. FOR EXAMPLE, THE ISSUE THAT ISIDORO WAS RELATED TO A POLICE OFFICER, IN A VACUUM, OTHERWISE COMPLETELY FAIR TRIAL, THAT PROBABLY WOULD BE AN ISSUE. I THINK WHEN YOU PLUG THE WHOLE IN, IT IS ONE MORE FACT, THAT
WHEN YOU LOOK AT WHOLE PICTURE CUMULATIVELY IS WHAT CONCERNS THE LIABILITY OF HIS INITIAL TRIAL. NOT NECESSARILY WHAT DEFENSE COUNSEL WOULD BE ABLE TO SHOW AT A FUTURE TRIAL BUT JUST LOOKING AT THE ORIGINAL TRIAL, IT WAS NOT A FAIR TRIAL. SO, AT THIS POINT I WOULD ASK FOR A NEW OR AT THE VERY LEAST, A NEW PENALTY PHASE BECAUSE AS THIS COURT DID UPHOLD SEVERAL OF THE AGGRAVATORS BASED ON LUIS'S TESTIMONY WHICH HAS NOW BEEN IMPEACHED. THANK YOU. >> MAY IT PLEASE THE COURT, SANDRA JAGGARD, ASSISTANT ATTORNEY GENERAL ON BEHALF OF THE STATE. FIRST OF ALL THE FACT THAT LUIS HAD SEX WITH HIS WIFE AT POLICE STATION WAS ACTUALLY THE SUBJECT OF EXTENSIVE TESTIMONY AT TRIAL. THE OWN QUESTION IN THE RULE 3 WHETHER THE POLICE GAVE HIM PERMISSION TO DO THAT BECAUSE AT TRIAL EVERYONE TESTIFIED THAT LUIS DID IT BUT DID IT ON HIS OWN WITHOUT ANYONE'S PERMISSION. AT POST‐CONVICTION HEARING, LUIS SAID, OH, THEY GAVE ME PERMISSION AND RECANTED ON CROSS.
THE OFFICER SAID, NO, WE NEVER GAVE HIM PERMISSION. THE TRIAL COURT FOUND LUIS INCREDIBLE AND OFFICERS CREDIBLE. SO WE HAVE NO CHANGE WHATSOEVER ABOUT LUIS AND SPECIAL FAVORS. AS FAR AS ISIDORO BEING RELATED TO A POLICE OFFICER, SO WHAT? HE IS ALSO RELATED TO TWO MURDERERS, HIS BROTHER AND HIS BROTHER‐IN‐LAW, THE DEFENDANT AND CODEFENDANT IN THIS CASE. >> LET ME ASK YOU THIS. A LOT OF THIS, I ASSUME, WE ACCEPTED AND, JURY ACCEPTED THAT ISIDORO HAD AN ALIBI? >> AND NOTHING HAS BEEN PRESENTED TO SHOW THAT ISIDORO HAD BEEN IMPEACHED. >> WHAT THE IS NATURE OF THAT ALIBI? >> THE ALIBI THAT ISIDORO WAS IN ORLANDO. HE HAD WORK RECORDS SHOWING HE WAS IN ORLANDO AND HE A GAS RECEIPT SHOWING HE WAS IN ORLANDO. HE WAS NOT CLEARED BASED ON THOSE DOCUMENTS. HE, THOSE DOCUMENTS WEREN'T EVEN PRESENTED UNTIL AFTER HIS DEPOSITION. HE JUST WASN'T A SUSPECT FOR THE POLICE.
HE WAS A SUSPECT FOR THE DEFENSE. THEY JUST WANTED TO QUESTION HIM BECAUSE RALPH LOPEZ HAD COME FORWARD, SAID, LUIS HAD TOLD HIM ABOUT THIS CRIME AND THAT THE DEFENDANT AND LUIS'S INVOLVEMENT AND SAID ISIDORO HAD THE JEWELRY. >> SO THIS ISSUE THAT ISIDORO BEING A SUSPECT IN THIS CASE NOT BEING DISCLOSED, WHAT'S YOUR ANSWER TO THAT ARGUMENT? >> THERE'S NOTHING NOT DISCLOSED ABOUT THAT. THERE HAS NEVER BEEN ANY CLAIM IT WASN'T DISCLOSED. THERE IS JUST A CLAIM HE WAS A SUSPECT. THE CLAIM THAT WE DIDN'T DISCLOSE WAS THAT ISIDORO WAS ALLEGEDLY, ISIDORO HAD BEEN A WITNESS A DECADE EARLIER INTO THE ROMAN CASE. MR.^ROMAN WAS ACQUITTED. THE CLAIM WAS WE HAD ISIDORO UNDER POLICE PROTECTION IN ORLANDO. WHEN WE WENT TO TALK TO ISIDORO TO GET A STATEMENT ABOUT THIS STUFF ABOUT HAVING THE JEWELRY, WE THREATENED HIM REMOVAL OF THE POLICE PROTECTION. THE EVIDENCE AT THE EVIDENTIARY HEARING WAS UNDISPUTED THAT THERE WAS NEVER ANY POLICE
PROTECTION. WHATSOEVER GIVEN ISIDORO. AND THEREFORE, THERE WAS NOTHING TO DISCLOSE BECAUSE IT DOESN'T ACTUALLY EXIST. >> OF ALL THE ISSUES IN THE ORIGINAL CASE, THAT WASN'T TOTALLY EXPLORED, BUT THEN AS I THINK ABOUT IT, JUST, SEEMS LIKE THERE'S SOMETHING OFF HERE ABOUT THE JEWELRY. AND THE JEWELRY, ACCORDING TO THE TESTIMONY, IS THAT, THE JEWELRY IS SUPPOSEDLY PUT THERE MANUEL. YOU SAY HIS WIFE AND LONG‐TIME GIRLFRIEND WHO HAPPENS TO BE A HALF‐SISTER OF LUIS AND ISIDORO. HE PUTS IT UNDER, SUPPOSEDLY PUT IT UNDER THE MOTHER'S TRAILER. >> YES. >> WHICH IS IN THE MIAMI AREA. >> YES. >> OKAY, THE MOTHER FINDS THE JEWELRY. >> YES. >> AND SHE THEN REHIDES IT OR SOMETHING. THEN SHE GETS WORRIED BECAUSE MANUEL AND COOKIE ARE COMING TO GET IT. >> YES. >> SHE CALLS HER SON ISIDORO. THIS IS WHAT HAPPENS ‐‐
>> YES. >> ‐‐ IN ORLANDO. >> YES. >> AND TELLS ISIDORO, COME DOWN, HELP HER OUT WITH THE JEWELRY. >> UH‐HUH. >> OKAY. HE COMES DOWN, HE SUPPOSEDLY TAKES THE JEWELRY. AND TAKES IT BACK TO ORLANDO. AND THROWS IT INTO SOME FIELD IN ORLANDO. THAT WAS ‐‐ >> EXCEPT FOR ONE COIN HE ALLEGEDLY BURIED IN HIS YARD. >> THAT CAME OUT AT TRIAL, THE JURY HEARD IT. ANYTHING IN THESE, BECAUSE, THAT SOUNDS AWFULLY STRANGE TO ME BUT IS THERE ANYTHING THAT CHANGES THAT TESTIMONY, ANYTHING THAT HAPPENED IN POST‐CONVICTION? >> NO. WE HAD AN ATTEMPT TO ADMIT A DEPOSITION AS SUBSTANTIVE EVIDENCE, NOT TO SHOW WHAT THE DEFENSE ATTORNEYS KNEW, BUT AS SUBSTANTIVE EVIDENCE. SHE IS ARGUING THE DEPOSITION SHOWS HAS THIS JEWELRY. YOU NEED THE PERSON WHO TESTIFIED IN THE DEPOSITION. >> LOPEZ. >> YES. >> THEY DIDN'T EVER ‐‐
>> THEY DIDN'T EVEN ATTEMPT TO CALL RAFAEL LOPEZ AT EVIDENTIARY HEARING. EITHER OF THEM. WE HAVE NO EVIDENCE. >> WHAT EXACTLY SUPPOSEDLY HE SAID IN THE DEPOSITION? >> I HAVE NO IDEA. I HAVE NEVER READ THE DEPOSITION ACCORDING TO MY OPPONENT ‐‐ >> NEVER BEEN ACCEPTED INTO EVIDENCE? >> NO. BECAUSE YOU DON'T ADMIT DEPOSITIONS AS SUBSTANTIVE EVIDENCE. YOU NEED WITNESSES. >> YOU AGREE, THERE ARE SOME DEPOSITIONS, I THINK THAT THE JUDGE DIDN'T ALLOW IN THAT, SHOULD HAVE BEEN ALLOWED IN BECAUSE AT LEAST TO SHOW SOMEBODY SHOULD HAVE PURSUED A PARTICULAR LINE OF QUESTIONING? >> WELL, BUT YOU NEED THE WITNESS TO SHOW THE LINE OF QUESTIONING. YOU DON'T ADMIT A DEPOSITION TO SHOW THE LINE OF QUESTIONING. IF THERE'S AN ISSUE UNDER THE EVANS CASE ABOUT WHETHER COUNSEL KNEW SOMETHING OR DIDN'T KNOW SOMETHING, THEN YOU CAN ADMIT IT FOR WHAT COUNSEL KNEW OR DIDN'T KNOW. BUT IT DOESN'T BECOME SUBSTANTIVE EVIDENCE FOR PREJUDICE.
IT GOES TO BASICALLY REFRESHING COUNSEL'S RECOLLECTION OR IMPEACHING. >> LET'S TALK ABOUT WILLIE SIRVAS. THAT WAS AT LEAST QUITE DISCONCERTING SITUATION WHERE YOU'VE GOT THESE LETTERS IN '95, AND '96 BASICALLY TELLING THE PROSECUTOR, I KNOW THAT, THAT LUIS IS GOING TO LIE. HE TOLD ME WAS GOING TO LIE TO SAVE HIMSELF, AND PIN IT ON HIS CODEFENDANT, AND, I KNOW THE DETAILS. AND THAT'S IN '96. ARE YOU TELLING US THERE IS ANY EXCUSE FOR THIS, NOT HAVING BEEN DISCLOSED TO THE DEFENSE? >> WELL, THE '95 LETTER WAS NOT DISCLOSED BECAUSE THERE IS NO IDENTIFYING INFORMATION. IT IS JUST COMPLETELY ANONYMOUS LETTER. THE '96 LETTER, THE PROSECUTOR TESTIFIED HE LOOKED INTO MR.^SIRVAS. FOUND HIM TO BE SOMEONE WHO WAS LOOKING FOR A DEAL AND DIDN'T DISCLOSE IT. >> NOT COMPLETELY ANONYMOUS. WRITTEN, 8/10/95. I'M IN SAME DORMITORY AS INMATE LUIS RODRIGUEZ AND GIVES LUIS RODRIGUEZ'S NUMBER. SOLVE WHY WOULDN'T THAT BE AT
LEAST, TO LOOK AT THAT, SAY, WELL MAYBE THE STATE DIDN'T WANT TO WORRY ABOUT HANDING IT BUT I DON'T UNDERSTAND WHY THAT WOULDN'T BE SOMETHING THAT, YOU KNOW THE DEFENSE WOULD WANT TO KNOW TO SAY MAYBE I CAN FIND THIS GUY WHO WAS GOING TO SAY RODRIGUEZ TOLD ME EVERYTHING ABOUT THE MURDERS AND SAID THE STATE CAN'T, PROVE HIM ANYTHING WITHOUT A WITNESS OR PROVE ‐‐ GOES ON. I'M NOT SURE I UNDERSTAND WHY THAT. >> YEAH. >> JUST BECAUSE THE STATE CAN'T FIGURE OUT THEN WHO IT IS WHY THAT IS NOT BRADY? THEY GET SOMETHING FROM SOMEBODY WHO IS WITH SIRVAS, I MEAN WITH, RODRIGUEZ? IF IT WAS OPPOSITE, WHICH IS, I'M IN THE CELL WITH MANUEL RODRIGUEZ, AND HE HAS JUST CONFESSED TO CRIME, I WOULD BE SURE THAT THE STATE WOULD BE IN THAT CELL LIKE IMMEDIATELY TO FIND OUT WHO IT WAS THAT MANUEL WAS SPILLING HIS GUTS TO. >> WELL PERHAPS, PERHAPS NOT. DEPENDING ON WHAT THEY KNEW ABOUT THE PERSON BECAUSE THAT WAS PART OF THIS. WAS THAT THEY LOOKED INTO WHO SIRVAS WAS, THE STATE DID, THIS
IS SOMEBODY LOOKING FOR A DEAL AND DECIDED IT WASN'T ANYTHING. >> NOW WE'RE GOING TO WHY THEY DIDN'T DISCLOSE THE SECOND LETTER? >> YES. >> THEY LOOKED INTO WHO THE GUY WAS? THEY TALKED TO SIRVAS? >> NO. HE LOOKED INTO WITH HIS COLLEAGUES ABOUT SIRVAS, AND FOUND OUT THAT HE WAS SOMEBODY WHO WAS FISHING FOR A DEAL. >> AND YOU'RE TELLING, SO THE, THEREFORE THEY MADE A DECISION, IT WASN'T FAVORABLE TO THE, TO THE DEFENDANT? >> THAT WAS WHAT MR.^LAESER TESTIFIED TO. IT WAS NOT SOMEBODY WHO WAS GOING TO BE CREDIBLE. >> LET'S ASSUME, WE LOOK AT THIS AND GO, LUIS IS THE MAIN WITNESS. HE SAYS SOMETHING DIFFERENT, AND THIS COULD BE SIGNIFICANT IMPEACHMENT OF LUIS. WHAT THEN, NOW GO TO THE PREJUDICE PRONG, BECAUSE I REALLY DON'T WANT TO GET INTO A DISCUSSION WITH YOU ABOUT WHETHER MR.^LAESER SHOULD HAVE DISCLOSED IT, BECAUSE I CAN'T THINK OF ANYTHING THAT IS CLOSER TO BRADY THAN ‐‐ THIS WAS CASE, CALLING IT RODRIGUEZ. TELL ME ‐‐
>> THE PREJUDICE PRONG IS A BIG PROBLEM BECAUSE WHILE THE LETTERS SAY THAT I KNOW EVERYTHING ABOUT THE CASE, HE GOES ABOUT NAMING THE DEFENDANT'S ATTORNEYS, NOT LUIS'S ATTORNEYS, MANUEL'S ATTORNEYS. AT THE EVIDENTIARY HEARING, FIRST OF ALL, MR.^SIRVAS HAD TO READ HIS NAME AND BIRTH DATE OFF OF A PIECE OF PAPER AND WAS DOING THAT QUITE PUBLICLY IN FRONT OF THE JUDGE. SECONDLY, HIS TESTIMONY WAS THAT HE DIDN'T KNOW ANYTHING ABOUT THE FACTS OF THE CRIME OTHER THAN LUIS SAID THAT HE AND THE CODEFENDANT DID IT. AND, THAT HE DIDN'T EVEN KNOW THE CODEFENDANT'S NAME. AND, THAT THE REASON HE SAID LUIS WAS LYING WAS BECAUSE, LUIS HAD TOLD HIM THAT LUIS AND MANUEL HAD A DEAL WHERE THEY WOULDN'T FLIP ON ONE ANOTHER AND LUIS WAS BREAKING THAT DEAL SO THAT'S WHY LUIS WAS LYING. >> DID THE STATE TALK TO SIRVAS BEFORE THE DEPOSITION? >> BEFORE THE TESTIMONY? >> YES, THE TESTIMONY? >> THE SATELLITE, NO, WE DID NOT. >> SO THERE AREN'T ANY OTHER STATEMENT THAT IS THE STATE
OBTAINED OF WILLIE SIRVAS? >> NO. WE HAVE HIS TESTIMONY AT THE EVIDENTIARY HEARING. >> IT WAS TO ‐‐ >> WE WANTED TO DEPOSE HIM BUT HE WAS IN PERU. THERE WERE ISSUES ABOUT BRINGING HIM BACK TO THIS COUNTRY. AND WE WERE NOT ABLE TO ARRANGE A TELEPHONIC DEPOSITION BEFORE THE HEARING. SO WE HAVE HIS TESTIMONY. >> WHAT WAS ASKED, I DID LOOK AT THIS ISSUE OF, HE ACTUALLY ENDS IN MENTIONS THE DEFENSE ATTORNEY'S NAME, MR.^RICHARD HOULIHAN. DID HE ASK ABOUT HOW HE KNEW WHO THE DEFENSE ATTORNEY WAS? >> HE SAID HE DIDN'T KNOW THE DEFENDANT'S NAME. DOESN'T KNOW ANYTHING ABOUT THAT. HE COULDN'T EXPLAIN. HE WASN'T FOUND CREDIBLE AT THE END, AMAZINGLY ENOUGH. >> I'M SORRY WHAT? >> I SAID, SIRVAS IS NOT FOUND CREDIBLE BY THE TRIAL COURT IN THE END BECAUSE HE CONTRADICTS HIMSELF, AND I COULDN'T REMEMBER HIS NAME AND COULDN'T TESTIFY ABOUT MUCH ABOUT ANYTHING. >> HE COULDN'T REMEMBER HIS NAME?
>> HE READ HIS OWN NAME AND BIRTH DATE OFF A SHEET OF PAPER DURING HIS TESTIMONY. >> THAT IS SOMEWHAT STRANGE, AS FAR AS, RICHARD HOULIHAN, HE SAID HE REALLY DIDN'T KNOW WHY ‐‐ IS THIS HIS WRITING? >> HE HAD WROTE THE LETTERS BUT DIDN'T HAVE, HAD NO EXPLANATION WHY HE NAMED THE DEFENDANT'S ATTORNEYS EVEN THOUGH HE DIDN'T KNOW THE DEFENDANT'S NAME. >> WITHOUT, I DON'T KNOW IF THERE IS EVIDENCE, ARE YOU INFERING THAT THIS IS SOMETHING THAT MANUEL WAS FEEDING TO SIRVAS? >> I HAVE NO IDEA WHO FED THIS TO, I DON'T KNOW ANYTHING ABOUT ABOUT THIS. I DON'T EVEN KNOW THE NAME OF THE CODEFENDANT. >> SO WHAT HE SAID IN THIS '95 LETTER, RODRIGUEZ TOLD ME EVERYTHING ABOUT THE MURDERS. >> AND HIS TESTIMONY AT THE HEARING WAS THAT LUIS TOLD HIM NOTHING ABOUT THE MURDERS. THAT ALL HE KNEW ‐‐ >> NOT THAT HE DIDN'T REMEMBER AFTER 13 YEARS. >> NO. >> OR 14 YEARS. >> NO. HIS TESTIMONY WAS, LUIS DIDN'T TELL HIM ANYTHING ABOUT THE MURDERS BUT LUIS AND MANUEL
COMMITTED THEM. HE NEVER EVEN GOT TOLD THE CODEFENDANT'S NAME. AND THE REASON HE SAID LUIS WAS LYING WAS BECAUSE THAT LUIS TOLD HIM, LUIS AND MANUEL HAD A DEAL NOT TO TESTIFY AGAINST ONE ANOTHER AND LUIS WAS BREAKING IT. THAT WAS HIS TESTIMONY. AND IT IS CONTRADICTING THE EVIDENCE IN THE LETTERS. THE TRIAL COURT ENDED UP, AND HAVING WATCHED HIM READ HIS NAME OFF OF A PIECE OF PAPER, THE TRIAL COURT ENDED UP SAYING, THIS PERSON ISN'T CREDIBLE. AND ‐‐ >> IS THIS A PERSON WHO IS OF SPANISH DESCENT? >> YES. PERUVIAN. >> HE IS PERUVIAN. AND THE LETTER WAS WRITTEN IN ENGLISH? >> YES. >> WAS HE HAVING ANY PROBLEM WITH ENGLISH OR, I MEAN, THIS IS, YOUR STATEMENT NOW MAKES THIS WHOLE THING INCREDIBLE. DID HE WRITE THIS LETTER? IS THERE ANY INDICATION THAT HE MAY NOT HAVE WRITTEN THIS LETTER? >> HE SAID HE WROTE THE LETTER. >> WAS THE OTHER LETTER, THIS IS THE SECOND LETTER, OKAY. THE FIRST LETTER, WAS IT THE
SAME HAND WRITING? >> HE SAID HE WROTE THAT LETTER TOO. >> WHAT I'M ASKING YOU, HAVE YOU ‐‐ >> THEY LOOK SIMILAR, YES, YOUR HONOR. THERE IS NO TESTIMONY ABOUT WHOSE HANDWRITING IT WAS. IT WAS HIS HANDWRITING AND HE WROTE THEM BOTH. UNFORTUNATELY THAT IS OUR TESTIMONY FROM THE EVIDENTIARY HEARING AND ‐‐ >> THE BOTTOM LINE OF EVEN IF THIS MAN HAD BEEN CALLED AS A WITNESS, IF THIS INFORMATION HAD BEEN DISCLOSED AND HE WAS CALLED AS A WITNESS, HE WOULD HAVE SAID, ON THE STAND THAT LUIS WOULD LIE BASED ON LUIS TELLING HIM I AM GOING TO LIE? >> NO. BASED ON LUIS TELLING HIM THAT LUIS AND MANUEL ENTERED INTO A DEAL NOT TO TESTIFY AGAINST ONE ANOTHER AND LUIS WAS BREAKING THE DEAL. THAT WAS HIS TESTIMONY ABOUT WHY HE SAID LUIS WAS LYING IN THE LETTER. AND IN EXCHANGE FOR THIS HE WOULD HAVE TESTIFIED THAT LUIS TOLD HIM THAT LUIS AND MANUEL COMMITTED THE CRIME AND THAT WAS IT.
IF THE COURT HAS NO FURTHER QUESTIONS, THE STATE RESPECTFULLY REQUESTS YOU AFFIRM. >> WITH RESPECT TO THE VIDEOCONFERENCING TESTIMONY, I THINK IF THE COURT GOES BACK AND LOOKS AT MY REPLY BRIEF ARE THERE ARE A NUMBER FACTUAL ISSUES I DON'T WANT TO FOCUS ON I THINK MR.^RODRIGUEZ IS ENTITLED TO A NEW TRIAL WITHOUT REGARD TO MR.^SIRVAS BUT VIDEOCONFERENCING WAS AS DIFFICULT ON THE RECORD AS I EXPECTED IT TO BE, WITH DELAY. IT WAS IMPOSSIBLE TO KNOW WHAT QUESTIONS HE WAS HEARING BEING ASKED AND HE HAD SOME NOTES IN FRONT OF HIM THAT WE NEVER KNEW WHAT THEY WERE. AND THEY WERE TAKEN AWAY FROM HIM. >> THE PROBLEM, I'M GOING TO ACCEPT THAT HE KNEW HIS NAME AND HE DIDN'T HAVE TO LOOK AT A PIECE OF PAPER. BUT AS FAR AS THE TRIAL COURT THEN MAKING A CREDIBILITY DETERMINATION, EVEN IF IT WAS DONE IN A, USING VIDEOCONFERENCING, WE HAVE, IF THERE'S CREDIBILITY DETERMINATIONS AND HE FINDS THAT, OR SHE FINDS THAT THE WITNESS WAS INCREDIBLE.
>> RIGHT. >> THAT'S ONE BASIS THAT WE HAVE TO, IF THERE IS COMPETENT SUBSTANTIAL EVIDENCE ON THAT. BUT ON THE OTHER HAND, WE COULD SAY WELL, EVEN IF THERE WAS ISSUE OF HIS CREDIBILITY, THE DEFENSE SHOULD HAVE HAD IT AND THEY SHOULD HAVE AT LEAST ALLOWED HIM SAY WHATEVER HE WAS GOING TO SAY. BUT IF HE SAID THAT, WHICH IS, I DIDN'T GET THE DETAILS BUT I JUST KNEW HE WAS GOING TO LIE BECAUSE HE HAD PROMISED HE WASN'T GOING TO RAT ON HIS CODEFENDANT AND HE IS ‐‐ >> RIGHT. >> THAT DOESN'T PUT ISIDORO IN THIS PICTURE. THAT TO ME AGAIN WAS YOUR THEME, IS THAT THE, IT WAS, LUIS AND ISIDORO. LUIS BEING THE MASTERMIND WITH ISIDORO. SO DOESN'T THAT, ISN'T THAT A SIGNIFICANT PROBLEM? I MEAN IF HE, SAID SOMETHING ABOUT MANUEL WASN'T INVOLVED, THAT THERE WAS, HIS BROTHER WAS ACTUALLY INVOLVED, THEN WE'D HAVE A WHOLE DIFFERENT SITUATION. >> I THINK WITHOUT REGARD TO THE CREDIBILITY DETERMINATION, TRIAL COUNSEL THAT HAD, IF THEY
HAD KNOWN THIS INFORMATION, THAT LUIS WAS TALKING TO OTHER PEOPLE IN THE JAIL ABOUT HIS DEAL OR WHAT HE PLAN TO DO, THEY WOULD HAVE BEEN OUT AT THAT JAIL TALKING TO WILLIE SIRVAS AND TO OTHER PEOPLE. MR.^HOULIHAN SPECIFICALLY SAID, IF I KNEW ABOUT WILLIE SIRVAS I WOULD HAVE GONE TO WILLIE SIRVAS SAID, WHO IS YOUR CELLMATE. IF YOU LOOK AT THE ROGERS CASE ‐‐ >> WHAT DOES THAT DO TO THE PREJUDICE PRONG WHICH IS REALLY FOCUS OF ALL THIS? >> RIGHT. >> THAT REALLY DOESN'T IMPACT IT AT ALL BECAUSE WE DOESN'T KNOW WHAT THEY WOULD HAVE FOUND. >> I'M NOT ASKING FOR A NEW TRIAL BASED ON WILLIE SIRVAS'S TESTIMONY. IF YOU LOOK AT WHOLE PICTURE, WILLIE SIRVAS IS ONE SMALL PART TO SERVE TO BOLSTER LUIS'S TESTIMONY THAT THE POLICE ACTUALLY ALLOWED HIM TO HAVE SEX WITH HIS WIFE DURING TRIAL. AND JUST WITH RESPECT TO THE INFORMATION THAT MAY OR MAY NOT HAVE BEEN PROVEN CONCERNING ISIDORO, THERE WAS A HEARING IN 2004. I ADDRESSED A LOT OF THE
EVIDENTIARY ISSUES, SPECIFICALLY IN TERMS OF WHAT THE DEPOSITION SHOWED THAT TRIAL COUNSEL SHOULD HAVE FOLLOWED UP ON, TO SHOW THAT ISIDORO WAS IN FACT, IN ORLANDO. THAT WOULD NOT HAVE BEEN SUBSTANTIVE EVIDENCE BUT IT WOULD HAVE BEEN INFORMATION THAT TRIAL COUNSEL HAD AT THE TIME THAT THEY DIDN'T FOCUS ON. MAYBE THEY WOULD HAVE FOCUSED ON IT IF THEY HAD KNOWN ISIDORO HAD ALREADY BEEN INVOLVED IN OTHER MURDER CASES THAT, THAT HE HAD A PRIOR CRIMINAL HISTORY. EVEN THOUGH THE PROSECUTOR, THE JURY, THIS IS SOMEONE WITH NO CRIMINAL HISTORY. HE HAS AN AIR‐TIGHT ALIBI. WE NOW KNOW THAT IS NOT TRUE. I THINK WE SHOULD FOCUS ON ERRORS AT DIRECT APPEAL AND FAILURE OF STATE TO TURN OVER LETTERS FROM MR.^SIRVAS. TURN OVER LETTERS REGARDING ALEJANDRO LAGO. THAT IS IMPACTING RELIABILITY OF THE TRIAL, I WOULD ASK FOR NEW TRIAL OR AT LEAST NEW PENALTY PHASE. THANK YOU. >> THANK YOU. THANK YOU BOTH FOR YOUR
ARGUMENTS HERE TODAY ON BOTH CASES. THE COURT WILL NOW TAKE ITS MORNING RECESS FOR 10 MINUTES. >>PLEASE RISE. SUPREME COURT IS NOW IN RECESS.