Petition for Writ of Certiorari in Woods v. State of Florida

8/17/2019 Petition for Writ of Certiorari in Woods v. State of Florida

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______________________________________________________________

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT ______________________________________________________________

MICHAEL LAMAR WOODS,Petitioner,

v.

STATE OF FLORIDA,Respondent.

_____________________________________________________________

A Writ of Certiorari Petition Filed Pursuant Rule 9.100 of the Florida Rules of

Appellate Procedure

Case No.: 5D16-______

Lower Tribunal No: L.T. No. 42-2011-CF-002142-CF-AXXX

Fifth Judicial Circuit, Marion County, Florida

__________________________________________________________________

PETITION FOR WRIT OF CERTIORARI _____________________________________________________________

Terence M. Lenamon Tania Alavi

Fla. Bar No. 970476 Alavi, Bird, & Pozzuto, P.A.

Daniel J. Schwarz 108 North Magnolia AvenueFla. Bar No. 84665 Suite 600

TERENCE M. LENAMON, P.A. Ocala, Florida 34475245 SE 1st Street, Suite 404 352/732-9191

Miami, FL 33131 Florida Bar #0937680Tel: (305) 373-9911 Primary email: [email protected]

Fax: (305) 503-6973 Second email: [email protected]

Email: [email protected] Counsel for Petitioner Counsel for Petitioner


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TABLE OF CONTENTS

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..ii

TABLE OF CITATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

.iii

BASIS FOR INVOKING JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2

STATEMENT OF THE CASE AND FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . .

.2

NATURE OF RELIEF SOUGHT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

5

ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

.6

SIXTH AMENDMENT PRECLUDES COMPELLED

DISCLOSURE OF TEST FINDINGS AND REPORTSFROM NON-TESTIFYING EXPERT WITNESS . . . . . . . . . . . . . . . . . . . .

6

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

16

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

.17

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

.18


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TABLE OF CITATIONS

CASES

Allstate Ins. Co. v. Langston, 655 So.2d 91 (Fla. 1995) . . . . . . . . . . . . . . . . . . . . . .

2

Chavez v. State, 12 So.3d 199 (Fla. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

.7

Dugas v. Coplan, 428 F.3d 317 (1st Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . .13,

14

Duncan v. Ornoski, 528 F.3d 1222 (9th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . .14,15

Harrington v. Richter , 562 U.S. 86, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011). . . . .

.10

Hinton v. Alabama, ––– U.S. ––––, 134 S.Ct. 1081,

188 L.Ed.2d 1 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11,

12

Ibar v. State, No. SC12-522, Ibar v. Jones, No. SC12-2619

(Fla. February 4, 2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..13

Kidder v. State, 117 So.3d 1166 (Fla. 2d DCA 2013) . . . . . . . . . . . . . . . . . . . 7, 8,13


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Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574,

91 L.Ed.2d 305 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

.8

Lafler v. Cooper , ––– U.S. –––, 132 S.Ct. 1376 182 L.Ed.2d 398 (2012) . . . . . . . .

6

Miller v. Anderson, 255 F.3d 455 (7th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . .

14

Richey v. Bradshaw, 498 F.3d 344 (6th Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . .

.10

Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456,162 L.Ed.2d 360 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9,

10

Showers v. Beard , 635 F.3d 625 (3rd Cir. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . .

.14

State v. Fitzpatrick , 118 So.3d 737 (Fla. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . .

13

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,80 L.Ed.2d 674 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9,

16

Thomas v. Clements, 789 F.3d 760 (7th Cir. 2015) . . . . . . . . . . . . . . . . . . . . . . . ..14

United States v. Cronic, 466 U.S. 648 104 S.Ct. 2039,

80 L.Ed.2d 657 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

.6

Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527,156 L.Ed.2d 471 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

.9

Williams v. Thaler , 684 F.3d 597 (5th Cir. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . .

14


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RULES AND STATUTES

Florida Rule of Appellate Procedure 9.030 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Florida Rule of Appellate Procedure 9.100 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ..1

Florida Rules of Criminal Procedure 3.220 . . . . . . . . . . . . . . . . . . . . . . . . .4, 5, 8,

16

Florida Statutes Section 775.087. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

2

Florida Statutes Section 782.04 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

.2

OTHER

American Bar Association Guidelines for the Appointment

and Performance of Defense Counsel in Death Penalty Cases

(Revised Edition, February 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 9


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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

MICHAEL LAMAR WOODS, Case No. 5D16-______

Petitioner,L.T. No. 422011CF002142CFAXXX

v.

STATE OF FLORIDA,

Respondent. _________________________/

PETITIONFORWRIT OF CERTIORARI

Pursuant to Florida Rule of Appellate Procedure 9.100, MICHAEL LAMAR

WOODS, by and through counsel, petitions this Court for a writ of certiorari

reversing the lower court order filed February 9, 2016, denying Woods’ motion for

protective order from disclosing to the State the prospective findings and materials

of defense experts ( Appendix A). As explained below, the findings and materials

that the experts are expected to produce at the request of the defense attorneys are

protected from disclosure by the Sixth Amendment to the United States

Constitution and are not otherwise discoverable. The court’s February 9, 2016,

order should be reversed.


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I. Basis for Invoking Jurisdiction

This Court has jurisdiction to issue a writ of certiorari under article V,

section 4(b)(3) of the Florida Constitution, and Florida Rule of Appellate

Procedure 9.030(b)(3). An order denying a request for a protective order to prevent

the compelled disclosure of non-discoverable materials is precisely the type of

discovery order reviewable by certiorari because once a litigant is compelled to

produce the information, the cat is out of the bag and the irreparable harm is done.

Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla. 1995).

II. Statement of the Facts

Woods was indicted by a grand jury and is currently charged with two

counts of capital murder. The State is seeking the death penalty. Woods is accused

of committing premeditated murder of two victims by discharging a firearm and

causing the death of both persons in violation of Florida Statutes Section

782.04(1)(a)(1), 775.087(2)(a)(1), 775.087(2)(a)(2), and 775.087(2)(a)(3).

Woods was declared indigent and is currently represented by two court-

appointed attorneys.

Woods filed an amended motion for protective order on September 14, 2015

( Appendix B). He filed a supplemental motion for protective order on November


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25, 2015 ( Appendix C ). Woods has preliminarily retained an expert to consult with

counsel regarding the State’s ballistics evidence and he seeks to have the expert

test this evidence. The testing is expected to include examining the firearm for

functionality, trigger pull, firing pin, etc. Also expected to be tested is the

ammunition, specifically the caliber, manufacturer, lands and grooves, test fire

comparisons, etc. ( Appendix D). The bullet fragments that were removed from the

victims were purportedly matched to a firearm found in a lake behind Woods’

grandfather’s house. Woods seeks to examine these bullet fragments and test them

in comparison with the firearm that found in the lake. The expert has not yet

actually tested the ballistics evidence. The expert is not presently anticipated to be

listed as testifying witness. Woods’ motions for protective order seek to preclude

the compelled disclosure of any findings from tests conducted by the non-testifying

expert, as well as reports prepared by the expert. Woods argued in the circuit court

that the expert’s test findings and materials are protected from disclosure by the

Sixth Amendment to the United States Constitution, the work product doctrine, the

attorney-client privilege, the Fifth Amendment, and due to the uniqueness of death

penalty cases. In addition to Woods’ motions, he submitted to the trial court

perpetuated testimony of Richard Greenberg and Steven Harper ( Appendix E ). The

State filed a response ( Appendix F). Both Mr. Greenberg and Mr. Harper provided


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deposition testimony regarding ethical implications of compelled disclosure of

expert witness disclosure. Mr. Greenberg’s testimony dealt with counsel’s duties

under the Florida Bar Rules of Professional Conduct. Mr. Harper’s testimony dealt

with counsel’s duties under the American Bar Association Guidelines for the

Appointment and Performance of Defense Counsel in Death Penalty Cases. The

circuit court held a hearing on Wood’s motions on December 2, 2015 ( Appendix

G). The circuit court entered an order denying Woods’ motion on February 9,

2016. The court stated that the plain language of Fla. R. Crim. Proc. 3.220(d)(1)(B)

requires the defendant in a criminal case to disclose to the prosecution the results

of scientific tests and experiments. The court also stated that because the forensic

testing hadn’t yet been done in Woods’ case, the court could not determine

whether any of the test results were subject to the work product privilege and that

the court would have to conduct an in camera review of the results to determine

whether such results were privileged under the work product doctrine. The court

also stated that because Woods elected to participate in discovery, his Sixth

Amendment rights would not be violated by compelled disclosure of the test

results. Woods’ motion was premature because the experts’ statements and reports

were not yet in existence. The court indicated that it would have to conduct an in

camera review of any specific evidence Woods sought to preclude from disclosure.


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The court stated that forensic testing by experts does not implicate the Fifth

Amendment, and that the court would have to conduct an in camera review to

determine whether the test results contain any information protected by the

attorney-client privilege. The court finally noted that the Fla. R. Crim. Proc. 3.220

applies in death penalty cases, thus providing no relief to Woods.

Contrary to the circuit court’s ruling, for reasons described herein, Woods

maintains that the Sixth Amendment demands that he have access to confidential

witnesses. If a defendant participates in discovery, he must provide the prosecution

with “reports or statements of experts made in connection with the particular case,

including results of physical or mental examinations and of scientific tests,

experiments, or comparisons.” Fla. R. Crim. Proc. 3.220 (d)(1)(B)(ii). Due to the

Sixth Amendment, the only reasonable reading of this section of the Florida Rules

of Criminal Procedure would require disclosure of these test findings and materials

only where such experts are listed as testifying witnesses or the test findings or

materials will be used as evidence or exhibits at trial.

III. The Nature of the Relief Sought

Woods seeks a writ of certiorari reversing the circuit court’s February 9,

2016, order that denies his request for a protective order to prevent compelled

disclosure of non-discoverable materials.


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IV. Argument

The trial court has departed from the essential requirements of law in

refusing to grant Woods’ motion for a protective order exempting him from

disclosing to the State the test findings and materials of non-testifying, confidential

experts. The test findings and materials that Woods seeks to obtain, which would

be produced by a non-testifying expert, are privileged test results and materials the

disclosure of which would violate Defendant’s Sixth Amendment rights. If Woods

is compelled to disclose the results and materials expected to be provided by his

non-testifying expert, his trial preparation will be substantially and

unconstitutionally hindered.

Sixth Amendment Precludes Compelled Disclosure

The Sixth Amendment to the United States Constitution guarantees effective

assistance of counsel at critical stages of a criminal proceeding. This includes both

trial and pre-trial stages. Lafler v. Cooper , ––– U.S. –––, 132 S.Ct. 1376, 1385, 182

L.Ed.2d 398 (2012). The constitutional right to the effective assistance of counsel

entails “the right of the accused to require the prosecution's case to survive the

crucible of meaningful adversarial testing.” United States v. Cronic, 466 U.S. 648,

656-657, 104 S.Ct. 2039, 2045-2046, 80 L.Ed.2d 657 (1984). Without effective


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assistance of counsel, there exists a serious risk that an accused will not receive a

fair trial. Chavez v. State, 12 So.3d 199, 211 (Fla. 2009).

The Second District Court of Appeals of Florida has rejected the claim that

“compelling a defendant to provide the results of a scientific test performed by an

expert who is not expected to testify would hinder the defendant's trial preparation

and therefore his or her right to the effective assistance of counsel afforded by the

Sixth Amendment.” Kidder v. State, 117 So.3d 1166, 1173 (Fla. 2d DCA 2013).

The court reasoned that compelling disclosure does not violate the right to

effective assistance because there is no general constitutional right to discovery in

a criminal case, and thus the Sixth Amendment right to effective assistance of

counsel is not infringed by requiring a defendant to turn over test results to the

prosecution when a defendant voluntarily elects to participate in discovery. By

electing to participate in the discovery process, the defendant is allotted the

opportunity to view the State’s evidence, and the State is afforded the same

opportunity re the defendant’s evidence. Id. at 1174.

[W]e recognize the decision of whether to engage in the discovery

process may present defense counsel with a Hobson's choice. To elect

to participate in discovery allows an accused . . . the ability to viewthe State's evidence. In return, however, the State, as permitted by the

discovery rule, is entitled to the same. While such an exchange maywell promote a fair trial, for defense counsel charged with the duty to

effectively assist the client, it may be difficult to reconcile the duty to


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defend with the duty to disclose. . . . We can envision circumstances

where counsel may not desire to engage in discovery under rule 3.220.

Ibid.

The dictates of Kidder will force defense counsel into an untenable position

where the obligation to defend a client’s interests by conducting reasonable

investigations is directly in conflict with the obligation to disclose incriminating

materials that would potentially be generated in the course of such investigations.

As a result of Kidder, counsel is effectively forced to ask the question: To

investigate, or not to investigate? (Of course, counsel will generally have no idea

whether a particular investigation will bear exculpatory or inculpatory information

until after conducting the investigation, at which point disclosure, under Kidder ,

becomes required.) The solution to this dilemma, per Kidder , apparently, is to not

engage in discovery in the first place. If the defendant opts not to participate in

discovery, he is no longer under the obligation to disclose the results of his own

investigations. See Fla. R. Crim. Proc. 3.220(a). Simply suggesting that a

defendant forego discovery is a highly dubious solution in most criminal cases. See

Kimmelman v. Morrison, 477 U.S. 365, 385, 106 S.Ct. 2574, 2588, 91 L.Ed.2d 305

(1986) (counsel was deficient where he “neither investigated, nor made a

reasonable decision not to investigate, the State's case through discovery. Such a

complete lack of pretrial preparation puts at risk both the defendant's right to an


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ample opportunity to meet the case of the prosecution and the reliability of the

adversarial testing process.”) (internal citations and quotation omitted). And in the

context of capital prosecutions, this is no viable solution at all.

It is indisputable that competent assistance of counsel includes a duty of

such counsel to conduct “reasonable investigations or to make a reasonable

decision that makes particular investigations unnecessary.” Strickland v.

Washington, 466 U.S. 668, 690-691, 104 S.Ct. 2052, 2065-2066, 80 L.Ed.2d 674.

This duty is particularly serious in capital cases. Counsel in a capital case “at every

stage have an obligation to conduct thorough and independent investigations

relating to the issues of both guilt and penalty.” American Bar Association

Guidelines for the Appointment and Performance of Defense Counsel in Death

Penalty Cases, Guideline, 10.7 (Revised Edition, February 2003). This includes

securing information in the possession of the prosecution and law enforcement.

The defense investigations must be made in all circumstances regardless of the

defendant’s protestations otherwise or the presence of overwhelming evidence of

guilt. Ibid. (ABA standards have long been held to be guides to determining what

is reasonable. Wiggins v. Smith, 539 U.S. 510, 524, 123 S.Ct. 2527, 2537, 156

L.Ed.2d 471 (2003).) That counsel must obtain information that the State has and

that it will use against the defendant in a death penalty prosecution isn’t simply a


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matter of common sense; it is an obligation. Rompilla v. Beard, 545 U.S. 374, 387,

125 S.Ct. 2456, 162 L.Ed.2d 360 (2005). Counsel in a capital case is clearly under

an obligation to obtain from the prosecution access to all evidence the State has

and intends to use against the defendant, thus negating any legitimate possibility of

not engaging in discovery.

Once it is understood that defense counsel in capital prosecutions are

obligated to engage in discovery in order to obtain all evidence that the prosecution

possesses against the defendant, it becomes necessary to analyze what counsel

must actually do with this evidence. “Criminal cases will arise where the only

reasonable and available defense strategy requires consultation with experts or

introduction of expert evidence, whether pretrial, at trial, or both.” Harrington v.

Richter , 562 U.S. 86, 106, 131 S.Ct. 770, 788, 178 L.Ed.2d 624 (2011). The need

to consult with experts in specialized fields is inextricably intertwined with a

defense attorney's ability to investigate and prepare for trial. See Richey v.

Bradshaw, 498 F.3d 344, 362 (6th Cir. 2007) (“[T]he mere hiring of an expert is

meaningless if counsel does not consult with that expert to make an informed

decision about whether a particular defense is viable.”). This is especially true

concerning capital cases. As a result of the exceeding complicated nature of

modern scientific evidence, counsel is generally incapable of conducting serious


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investigations into complex scientific matters (DNA testing, ballistics evidence,

etc.) without the assistance of experts. Counsel requires the assistance of experts to

ensure his ability to understand and critique the prosecution’s scientific evidence

and witnesses (i.e., to actually participate as an adversary). The possibility that a

defense attorney can competently defend a capital case without the assistance of

experts is effectively non-existent. See ABA Guidelines, Guideline 4.1,

Commentary (“The prosecution commits vast resources to its effort to prove the

defendant guilty of capital murder. The defense must both subject the

prosecution’s evidence to searching scrutiny and build an affirmative case of its

own. Yet investigating a homicide is uniquely complex and often involves

evidence of many different types. Analyzing and interpreting such evidence is

impossible without consulting experts – whether pathologists, serologists,

microanalysts, DNA analysts, ballistics specialists, translators, or others.”).

Hinton v. Alabama represents a capital murder case where “the only

reasonable and available defense strategy requires consultation with experts or

introduction of expert evidence.” Hinton v. Alabama, ––– U.S. ––––, 134 S.Ct.

1081, 1088, 188 L.Ed.2d 1 (2014) (internal citation omitted). In Hinton, “the core

of the prosecution's case was the state experts' conclusion that the six bullets had

been fired from the [defendant’s] revolver, and effectively rebutting that case


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required a competent expert on the defense side.” Ibid. The defendant’s attorney

mistakenly believed that the court could not have allotted him sufficient funds to

hire an effective expert on firearms and toolmark evidence. As a result, the only

firearms and toolmark expert the attorney was able to retain to rebut the

prosecution’s case was one he himself knew to be inadequate. Id. at 1085.

Unsurprisingly, the expert proved seriously ineffective at trial. The Supreme Court

found that the “trial attorney's failure to request additional funding in order to

replace an expert he knew to be inadequate because he mistakenly believed that he

had received all he could get under Alabama law constituted deficient

performance.” Id. at 1089. Hinton is just one example of a case where the use of

qualified expert witnesses is utterly necessary for criminal defendants. The

Supreme Court also recognized the invaluable and indispensable role that experts

play in criminal cases when it stated:

“Indeed, we have recognized the threat to fair criminal trials posed by

the potential for incompetent or fraudulent prosecution forensicsexperts, noting that “[s]erious deficiencies have been found in the

forensic evidence used in criminal trials.... One study of cases in

which exonerating evidence resulted in the overturning of criminal

convictions concluded that invalid forensic testimony contributed to

the convictions in 60% of the cases.” Melendez–Diaz v. Massachusetts, 557 U.S. 305, 319, 129 S.Ct. 2527, 174 L.Ed.2d 314

(2009) (citing Garrett & Neufeld, Invalid Forensic Science Testimonyand Wrongful Convictions, 95 Va. L.Rev. 1, 14 (2009)). This threat is

minimized when the defense retains a competent expert to counter the

testimony of the prosecution's expert witnesses. . .”


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Hinton, 134 S.Ct at 1090.

The Florida Supreme Court has also clearly recognized the necessity for

counsel to engage with experts in capital cases. The Court has found that an

attorney’s performance can be constitutionally deficient based on the failure to hire

experts to assist in conducting reasonable investigations. See State v. Fitzpatrick,

118 So.3d 737 (Fla. 2013) (granting new trial in death penalty case where trial

counsel’s performance was deficient when he failed to retain and consult with

forensic experts who could have challenged the State’s evidence)1. And the Florida

Supreme Court recently granted a new trial in a death penalty case where trial

counsel’s performance was constitutionally deficient because he failed to retain a

facial identification expert to challenge the State’s identification evidence. Ibar v.

State, No. SC12-522, Ibar v. Jones, No. SC12-2619 (Fla. February 4, 2016).

1 It should be noted that Fitzpatrick’s defense attorney explained that he did notretain forensic experts in the case, in part, because of a policy on court-appointed

cases adopted by the judges in his circuit at the time of the trial that physical test

results were not confidential and he thus would have been required to disclose to

the State the results of testing. The Court explained that if this policy actuallyexisted and impeded counsel’s ability to defend his client, “he could havechallenged the policy, petitioned the trial court for a confidential expert, or hired a

non-testifying expert to help him prepare for trial.” State v. Fitzpatrick, 118 So.3dat 755, n.13. The Court clearly and unambiguously recognizes here the legitimacy

and availability of confidential non-psychological and non-psychiatric experts. The

Court’s notation directly undermines Kidder’s finding that scientific test results of non-testifying experts are subject to disclosure.


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Also, courts throughout the country have not hesitated to find counsel

deficient for failing to retain experts to assist in both capital and non-capital cases.

See Dugas v. Coplan, 428 F.3d 317, 329 (1st Cir. 2005) (counsel’s performance

was constitutionally deficient where he failed to consult an expert and thoroughly

investigate a “not arson” defense in arson prosecution); Showers v. Beard , 635

F.3d 625 (3rd Cir. 2011) (finding counsel's performance deficient when defense

failed to hire expert to determine if the taste of a toxic drug that caused death of

victim could be masked and therefore whether death was a result of suicide or

intentional homicide); Williams v. Thaler, 684 F.3d 597, 604 (5th Cir. 2012) cert.

denied, ––– U.S. –––, 133 S.Ct. 866, 184 L.Ed.2d 679 (2013) (holding that defense

counsel's performance fell below an objective standard of reasonableness when

counsel failed to “obtain any independent ballistics or forensics experts, and was

therefore unable to offer any meaningful challenge to the findings and conclusions

of the state's experts, many of which proved to be incorrect”). Miller v. Anderson,

255 F.3d 455, 459 (7th Cir. 2001) (finding deficient performance when counsel

failed to hire an expert to rebut the prosecution's expert testimony about physical

evidence linking defendant to the crime scene), remand order modified by

stipulation, 268 F.3d 485 (7th Cir. 2001) (vacated at request of parties when

settlement was reached ); Thomas v. Clements, 789 F.3d 760 (7th Cir. 2015)


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(defense counsel was deficient in failing to consider and consult with a pathologist

who would have reviewed the autopsy report and possibly testified that victim’s

death was not intentional); Duncan v. Ornoski, 528 F.3d 1222, 1246 (9th Cir.

2008) (counsel’s performance was deficient where he failed to investigate and

consult serology expert to present evidence that the blood samples from the crime

scene that did not belong to the victim also did not belong to the defendant).

What the foregoing illustrates is that defense counsel’s obligation to provide

constitutionally effective representation in criminal cases will often (and in death

penalty cases – always) demand consultation with specially-trained experts who

will assist in examining the prosecution’s evidence. The Sixth Amendment thus

requires that defense counsel have the opportunity to retain and consult with such

experts, and for these experts to be afforded the opportunity to independently test

the prosecution’s evidence. But when counsel is deprived the opportunity to

confidentially consult with and receive reports and test results from experts, he is

left in the unenviable and unjust position of being forced to decide between 1)

conducting reasonable investigations, with the assistance of specially-trained

experts, of the prosecution’s evidence and risking the possibility of discovering

inculpatory evidence against the defendant and being forced to share this evidence

with the prosecution, or 2) foregoing certain investigations altogether. This creates


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a chilling effect and counsel is left then with only bad options, and his ability to

make independent decisions is significantly infringed upon. This limitation

seriously undermines counsel’s ability to participate as an adversary. This is

precisely what is forbidden by the Sixth Amendment. See Strickland v.

Washington, 466 U.S. at 686, 104 S.Ct. at 2063, 80 L.Ed.2d 674 (the right to

effective assistance of counsel is violated when the government interferes with

counsel’s ability to make independent decisions about how to conduct the defense).

V. Conclusion

For the reasons described herein, the only reading of Fla. R. Crim. Proc.

3.220 (d)(1)(B)(ii) that is in conformity with the Sixth Amendment is such that the

rule requires disclosure of expert’s test findings and materials only where such

experts are listed as testifying witnesses or the test findings or materials will be

used as evidence or exhibits at trial.

The trial court departed from the essential requirements of law in refusing to

preclude Woods from being compelled to disclose to the State the anticipated test

findings and materials of his non-testifying ballistics expert. Further, Woods will

be irreparably harmed by the court’s order because the cat will be out of the bag

after disclosure. This Court should reverse the circuit court’s February 9, 2016,


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order that allows the State access to the anticipated test findings and materials

described herein.

Respectfully submitted,

s/ Terence Lenamon

Terence M. LenamonFla. Bar No. 970476Daniel J. Schwarz

Fla. Bar No. 84665

TERENCE M. LENAMON, P.A.

245 SE 1st Street, Suite 404

Miami, FL 33131Tel: (305) 373-9911

Fax: (305) 503-6973

Email: [email protected]

/s/ Tania Z. Alavi

Tania Z. Alavi

108 North Magnolia AvenueSuite 600

Ocala, Florida 34475352/732-9191Florida Bar #0937680

Primary email: [email protected] email: [email protected]

CERTIFICATE OF SERVICE


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I certify that a true and correct copy of the foregoing has been served on

Assistant State Attorney Robin Arnold, via email at [email protected]; The Office

of the Attorney General, Criminal Appeals Division, via email at

[email protected]; and Circuit Court Judge Jonathan Ohlman, via

email at [email protected], on March 7, 2016.

s/ Terence M. Lenamon

Terence M. Lenamon

CERTIFICATE OF COMPLIANCE

I certify that that this Petition for Writ of Certiorari has been prepared in

Times New Roman 14-point font in compliance with Florida Rules of Appellate

Procedure 9.100(l).

s/ Terence M. Lenamon

Terence M. Lenamon

Documents

Petition for Writ of Certiorari in Woods v. State of Florida