>> NEXT CASE IS DIAZ VERSUS STATE OF FLORIDA. >> GOOD MORNING. I'M ROSEANNE ECKERT. I'M HERE ON BEHALF OF JOEL DIAZ. THIS MORNING I WOULD LIKE TO

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1 >> NEXT CASE IS DIAZ VERSUS STATE OF FLORIDA. >> GOOD MORNING. I'M ROSEANNE ECKERT. I'M HERE ON BEHALF OF JOEL DIAZ. THIS MORNING I WOULD LIKE TO FOCUS PRIMARILY ON ARGUMENT 2, THE DEFICIENT PERFORMANCE AND PREJUDICE AS RELATES TO IMPOSITION OF THE DEATH SENTENCE. BEFORE I SIT DOWN I WOULD LIKE TO SPEND JUST A FEW MINUTES ON THE JUROR MISCONDUCT ISSUE. ON DIRECT APPEAL THREE MEMBERS OF THIS COURT WOULD HAVE REVERSED DUE TO THE FACT HAC WAS MISAPPLIED BY THE TRIAL COURT AND REVERSED ON DIRECT APPEAL. THREE MEMBERS OF THE COURT FOUND THAT THE STATE COULD NOT ESTABLISH HARMLESS ERROR BEYOND A REASONABLE DOUBT. WITH RESPECT TO PREJUDICE, THE JUROR, THE JURY DID HEAR ABOUT THE DOMESTIC VIOLENCE AND CYCLE OF VIOLENCE THAT WENT ON IN THE DIAZ HOME. THEY HEARD A LOT OF INFORMATION ABOUT THE HOME LIFE OF JOEL DIAZ FROM THE TIME HE WAS A TEENAGER UNTIL YOUNG ADULTHOOD. WHAT THEY NEVER HEARD WAS WHAT HAPPENED WITH HIM FROM BIRTH ON THAT MR. DIAZ WAS BORN, WAS BORN INTO MEXICAN-AMERICAN SUBCULTURE OR UNDERCLASS AT THE BORDER OF THE RIO GRANDE RIVER IN TEXAS TO A VERY YOUNG MOTHER WHO CAME FROM A FAMILY OF MIGRANT FARM WORKERS AND HE WAS TAKEN TO THE FIELDS AT A VERY YOUNG AGE. AT SOME POINT HE MOVED,

2 PROBABLY THE AGE OF FIVE OR SIX, TO THE FORT MYERS AREA. WHAT THE JURY DID NOT HEAR WAS HOW HIS EXPERIENCES FROM BIRTH, UNTIL THE TIME THAT HE WAS A YOUNG TEENAGER, WHETHER IT BE THE EXPOSURE TO POVERTY, HIS ILLNESS AS A BABY, THE EXPOSURE TO THE CRONIC AND PROFESSOR GRIFFITH REFERRED TO AS STRUCTURAL VIOLENCE. HE WAS EXPOSED TO VIOLENCE NOT JUST AT HOME BUT IN THE NEIGHBORHOOD. IT WAS VIOLENT NEIGHBORHOOD. THERE WAS TESTIMONY HE SAW DEAD BODIES IN THE STREET. HE WAS EXPOSED TO VIOLENCE AS A PRETEEN WHEN HE WAS WORKING WITH HIS MOTHER IN THE FARM LABOR. THERE WERE ADULTS, ADULT MEN WHO WERE FIGHTING, DRINKING, GOING TO PROSTITUTES. SO ALL OF THIS, ALL OF THESE RISK FACTORS WERE PRESENT FOR THE DEVELOPMENT OF COGNITIVE DEFICITS. WHAT THE TRIAL ATTORNEY NEVER HEARD WAS HOW HIS EXPERIENCE, DEPRIVATION, IMPACTED NOT JUST HIS YOUNG DEVELOPING BRAIN FROM BIRTH ON TO AGE SIX BUT HOW IT COLORED HIS PERCEPTION AND HOW HE ENDS UP AT THE PLACE WHERE HE ENDED UP AT THE SHAW HOME AND COMMITTED THESE MURDERS. I THINK THE TRIAL ATTORNEY, THE TRIAL COURT MADE SOME SPECIFIC ERRORS WHEN IT CAME TO THE FINDING OF DEFICIENT PERFORMANCE. FIRST THE TRIAL ATTORNEY, THE TRIAL COURT AND THE STATE REALLY IGNORED THE TRIFECTA OF CASES THAT TALKS ABOUT WHAT

3 CONSTITUTES A REASONABLE INVESTIGATION. WE KNOW THAT A REASONABLE INVESTIGATION INCLUDES A COMPLETE EXPLORATION OF THE CLIENT'S LIFE NOT JUST FROM BIRTH BUT REALLY FROM CONCEPTION. >> HOW OLD WAS THIS DEFENDANT AT THE TIME OF THE CRIME? >> HE WAS 24 YEARS OLD. >> HAD HE HAD ANY HISTORY OF PRIOR VIOLENT FELONIES? >> THERE WERE NO PRIOR VIOLENT FELONIES. THE PRIOR VIOLENT FELONY APPLIED IN THIS CASE WAS THE CONTEMPORANEOUS FELONY. YOUR HONOR IN THE DISSENTING APPEAL UNDER HESS THAT IS NOT AS SIGNIFICANT OF A PRIOR VIOLENT FELONY. THE TRIAL COURT FOUND NO SIGNIFICANT HISTORY OF PRIOR CRIMINAL ACTIVITY ALTHOUGH WHAT THE JURY HEARD WAS THAT JOEL DIAZ DID HAVE A HISTORY OF DOMESTIC VIOLENCE. THAT HE IN FACT, NOT ONLY HE WAS VIOLENT TOWARDS LISSA SHAW BUT VIOLENT TOWARDS HIS OTHER GIRLFRIEND. >> THERE WAS HISTORY OF THE DOMESTIC VIOLENCE IN HIS FAMILY? >> YES. >> THAT WAS NOT HEARD BY THE JURY? >> THAT WAS HEARD. >> I'M HAVING TROUBLE UNDERSTANDING WHAT PART WOULD HAVE MADE SUCH A DIFFERENCE, YOU KNOW, TO THE JURY? STRIKING HAC. I SAID WHAT I SAID IN MY, IN THE SENTENCE BUT WHAT PART WAS

4 SO, THAT IT WAS DISCOVERED REALLY WOULD HAVE CHANGED THE PICTURE OF THE PENALTY PHASE? BECAUSE YOU HAVE ANYWAY, THERE IS NO QUESTION, THIS IS A DISTRAUGHT PERSON WHO WAS, YOU KNOW, THINKING HE WAS GOING TO KILL HIMSELF AFTER THIS. HE WAS, HE WAITED UNTIL THE POLICE CAME. SO THE FACTS ARE THE FACTS. WHAT IS IT THAT YOU REPORTED THAT WOULD SO CHANGE THE PICTURE OF THE MITIGATION IN THE CASE? I'M STILL NOT SURE, THE ADDITIONAL MITIGATION? >> THE HUMANIZATION OF JOEL DIAZ IN TERMS OF THE CULTURAL RELEVANCE OF HIS LIFE. WE SAW A YOUNG MAN WHO WAS RAISED IN AN ENVIRONMENT WHERE THE DAD BEAT THE MOTHER AND MINERVA DIAZ TESTIFIED THAT THEIR FATHER BEAT THEIR MOTHER AND THEIR BROTHERS BEAT THEIR GIRLFRIENDS AND THAT JOEL DID THE SAME. NO ONE THOUGH TALKED TO THE JURY ABOUT WHAT THAT REALLY MEANS. AS A MATTER OF FACT NEIL POTTER, THE STATE TRIED TO GET HIM TO SAY ISN'T THAT MITIGATING THE CYCLE OF VIOLENCE? IT CAME OUT AT THE PENALTY PHASE HE HAD BEEN VIOLENT, THIS WAS ISOLATED INCIDENT, HE HAD BEEN VIOLENT. ONCE THAT CAME OUT TO THE JURY THAT HE HAD HISTORY OF VIOLENCE TOWARDS HIS GIRLFRIEND THEY NEEDED TO TALK ABOUT THE CYCLE OF VIOLENCE. YOU CAN'T DO THAT IN A VACUUM.

5 NO ONE EVER DID THAT. THE STATE ARGUED IN THE BRIEF THAT OH, DR. KEOWN TALKED ABOUT THAT, THE SECRET MITIGATION. THE JURY WAS NEVER TOLD IN THE PENALTY PHASE. >> I'M HEARING WHAT YOU'RE SAYING BUT, AND I UNDERSTAND THAT YOU COULD PUT ON A BETTER CASE OF MITIGATION THAN WAS PUT ON AT TRIAL. OKAY, WE'LL STIPULATE TO THAT. AGAIN THAT'S NOT THE TEST THAT WE HAVE TO LOOK AT, NOT WHETHER IT WOULD BE POSSIBLE TO FIND MORE AND MAYBE ADD TO WHAT WAS, WHAT WAS THERE. THE THRESHOLD QUESTION HERE IS WHETHER THE COUNSEL WAS, WAS DEFICIENT. IF WE DON'T GET PAST THAT, IF WE DON'T FIND THAT WHAT THE COUNSEL DID WAS SO INADEQUATE THAT EFFECTIVELY WASN'T FUNCTIONING AS COUNSEL SHOULD, THEN THE REST OF IT BECOMES KIND OF IRRELEVANT. >> RIGHT AND THE THING IS WE DIDN'T, I THINK THAT IS A HUGE POINT THAT THE TRIAL COURT MADE. IT'S NOT JUST THAT IN POST-CONVICTION WE DID MORE OR BETTER. WE ACTUALLY TOOK WHAT WAS THERE AND WHAT WAS IN FRONT OF THE TRIAL ATTORNEYS AND THEY DIDN'T BOTHER TO LOOK AT IT. DR. CROWELL WHEN HE EVALUATED JOEL DIAZ WROTE IN HIS REPORT THAT HE HAD A HISTORY OF MANUAL LABOR AND IQ WAS IS LOW IQ. THE JURY WAS TOLD HE HAD AVERAGE INTELLIGENCE. THAT INFORMATION WAS RIGHT IN

6 FRONT OF THEIR FACES. WE DIDN'T COME OUT LATER AND DO BETTER OR MORE. THE TRIAL ATTORNEY DIDN'T EVEN HAVE DR. CROWELL'S REPORT IN THE FILE. THE GUILT PHASE ATTORNEY HAD IT BUT THE PENALTY PHASE ATTORNEY NEVER EVEN LOOKED AT THAT. >> IT SEEMS LIKE WHAT YOU'RE SAYING THEY COULD HAVE DONE, THEY SHOULD HAVE DONE A BETTER JOB WITH THIS. AND I CAN REALLY LINK IN THE CYCLE OF VIOLENCE BUT I'M STILL GOING BACK TO, AND LISTEN, I'M SYMPATHETIC TO THE SITUATION BUT STILL WE HAVE GOT TO FOLLOW THE STANDARDS THAT WE SET FORTH FOR DEFICIENT PERFORMANCE. WHAT DO YOU POINT TO AS THE MOST, YOU HEARD THE LAST CASE IT WAS STATE APPEAL WITH SOME PRETTY EGREGIOUS FAILURES. WHAT HERE IS THE, YOU LOOK AT IT AND SAY, WELL ANY REASONABLE ATTORNEY WOULD HAVE DONE OF THIS. >> EVERY LAWYER IS REQUIRED TO LOOK AT THEIR CLIENT'S LIFE FROM BIRTH UNTIL AGE SIX, ACTUALLY FROM CONCEPTION UNTIL AGE 6. WE KNOW HOW THE BRAIN DEVELOPS. DR. DUDLEY TALKED ABOUT HOW THE BRAIN DEVELOPS. DR. KLING, WHO THEY HAD AT THE TIME OF THE TRIAL, HAD HE BEEN GIVEN JAIL RECORDS, SCHOOL RECORDS, SOCIAL SECURITY RECORDS, IF HE HAD KNOWN NOT THAT JOEL DIAZ WORKED A CULTURE TO AGE 16, HAD HE KNOWN HE WAS IN THAT ENVIRONMENT AS A TODDLER AND LATER THERE AS A PRETEEN HE

7 WOULD HAVE RECOMMENDED A NEUROPSYCHOLOGICAL EVALUATION. THERE WAS NO NEUROPSYCHOLOGICAL EVALUATION. >> WHAT HAPPENS? DID YOU HAVE ONE DONE? >> WE DID AND THE I.Q., I MEAN I RECOGNIZE THERE WERE SOME ISSUES WITH THE I.Q. TEST. AND THINK HIS I.Q. IS ANYWHERE BETWEEN 57 AND 86. LET'S ASSUME THAT HIS IQ IS 86 BASED ON THE KIND OF DOWN AND DIRTY I.Q. TEST. FIRST, THAT'S STILL A LOW I.Q. LOW I.Q. IN AND OF ITSELF IS A MITIGATING CIRCUMSTANCE. NOT JUST THAT THE JURY DIDN'T HEAR THAT. THEY HEARD THE OPPOSITE. THEY HEARD HE WAS OF AVERAGE INTELLIGENCE. THERE IS NOT JUST I.Q. THERE IS COGNITIVE DEFICITS THAT COLOR THE FRONTAL LOBE WHICH IS THE EXECUTIVE FUNCTIONING THAT DR. DUDLEY TIED IN. AS MUCH AS THE UNITED STATES SUPREME COURT DOES NOT REQUIRE A NEXUS BETWEEN THE CHILDHOOD AND THE CRIME BUT THERE WAS A NEXUS AND THE JURY NEVER HEARD THAT NEXUS. THEY HEARD THAT WELL, HE WAS BEATEN AND HE WAS THIS CRIME AND THEY NEVER HEARD THE ENTIRE PICTURE. >> BUT ISN'T THE PROBLEM HERE IF HE HAD EXECUTED THE CRIME AGAINST HIS GIRLFRIEND, THAT, YOU KNOW, AND IN A DOMESTIC VIOLENT WAY THEN YOU TALK ABOUT THE CYCLE OF VIOLENCE. >> BUT HERE AFTER HE ATTEMPTED

8 TO KILL HER, HE DID THIS THING THAT WAS REALLY, I MEAN HE KILLED THE FATHER. HE TALKED ABOUT, HE STARTED ACTING FAIRLY PRETTY CRAZY THE EARLY LIFE DOESN'T SEEM TO ME TO EXPLAIN THAT. DID YOU HAVE AN EXPERT THAT REALLY EXPLAINED WHAT WAS GOING ON AFTER HE TRIED TO SHOOT THE GIRLFRIEND? >> YES AND DR. DUDLEY DID BOTH, YOUR HONOR. DR. DUDLEY TALKED ABOUT HOW THE EARLY LIFE, THE ALL OF THESE RISK FACTORS IMPACT THE WAY THE BRAIN DEVELOPS. SO THAT NEVER STOPPED. HIS BRAIN WAS ALREADY DEVELOPED. >> BUT IT DOESN'T ADD, I MEAN YOU AREN'T GOING TO ALLEGE A STATUTORY MITIGATION? >> DR. DUDLEY FOUND BOTH STATUTORY MITIGATORS. >> BASED ON HOW? YOU CAN SORT OF SAY IT BUT -- IT WASN'T JUST THAT HE WAS EXPOSED, I DON'T THINK THAT THE DOMESTIC VIOLENCE WAS THE KEY ISSUE HERE. I THINK THAT WAS ONE PART. WE KNOW THAT BECAUSE HE WAS EXPOSED TO THIS POVERTY, DEPRIVATION, HAD POSSIBLY MENINGITIS AS A CHILD ALTHOUGH WE WEREN'T ABLE TO GET THE RECORDS ALL OF THIS IMPACTED IT CONTROLLED HOWL HIS BRAIN DEVELOPS. WE HAVE A LITTLE BOY WITH COGNITIVE DEFICITS WHO DIDN'T DO WELL IN SCHOOL, WHO IS EXPOSED TO THIS VIOLENCE. DR. DUDLEY SAID THERE WAS NO

9 SAFE SPACE. HIS MOTHER HERSELF WAS VERY LOW INTELLIGENCE, REALLY A BEATEN DOWN WOMAN WHO DIDN'T TEACH HIM RIGHT FROM WRONG. THERE WAS NO SAFE SPACE. THERE WASN'T A LOVING PICTURE. IT WASN'T JUST THE HOME. IT WAS THE NEIGHBORHOOD. IT WAS ON THE FARM. ALL HE EVER SAW WAS VIOLENCE. HOW DID THAT IMPACT WHAT HAPPENED THAT DAY? WELL HE, DURING THOSE WEEKS PRIOR TO THE INCIDENT HE WAS VERY DEPRESSED. AND THERE WAS, THERE WERE WITNESSES WHO COULD HAVE TALKED ABOUT THAT. >> BUT HERE'S SOMETHING. PRIOR TO TRIAL DIAZ WAS EVALUATED BY THREE MENTAL HEALTH EXPERTS. TRIAL COUNSEL TESTIFIED THEY DIDN'T SEEK OUT ADDITIONAL MENTAL HEALTH EXPERTS. THERE IS NOTHING IN THE REPORTS THEY RECEIVED FROM THE PRETRIAL EXPERTS STOOD OUT TO JUSTIFY OBTAINING MORE. HOW DOES, AGAIN, IN, YOU WERE HERE FOR THE LAST CASE, WHERE, I MEAN THEY OBTAINED EXPERTS. THEY EVALUATED THAT. THEY DON'T HAVE AN OBLIGATION TO KEEP ON TRYING TO FIND EXPERTS. >> THEY DIDN'T NEED MORE. THE FACT I PUT ON DIFFERENT EXPERTS THEY DID NOT NEED MORE. DR. KLING REPORTED SEXUAL ABUSE IN HIS REPORT. ALL THE TRIAL ATTORNEY HAD TO DO WAS ASK ABOUT IT. >> ARE YOU SAYING THEN THAT THEY, THE DECISION WAS

10 DEFICIENT IN NOT PUTTING ONE OF THOSE EXPERTS ON? >> THEY COULD HAVE EITHER PUT ONE OF THE EXPERTS ON. >> DID YOU PUT ONE OF THEM ON IN THE EVIDENTIARY HEARING? >> I PUT ALL OF THEM ON. WELL, THE STATE PUT DR. KEOWN ON. I PUT ON DR. CROWELL WHO WOULD HAVE TESTIFIED. THE TRIAL ATTORNEY SAID HE DIDN'T, WHAT THEY WERE LOOKING FOR THE DEFENSE OF INSANITY. THEY DIDN'T CONNECT THE TWO, THE FIRST PART OR THE SECOND PART. I THINK THAT'S WHAT THIS COURT ASKED. WE HAVE THE PREJUDICE BECAUSE OF THE INFORMATION THAT WASN'T PRESENTED ABOUT THE CHILDHOOD, THE PORNOGRAPHY ROOM. THE SEXUAL ABUSE, MIGRANT FARM WORK, STRUCTURAL VIOLENCE. WE DIDN'T ATTACK THE MITIGATORS. THEY NEEDED TO DEAL WITH THE CCP. >> FAILURE TO ATTACK THE AGGRAVATORS. >> YES, YOUR HONOR, THEY DIDN'T ATTACK THE AGGRAVATORS. THERE IS AN INTERPLAY BETWEEN THE AGGRAVATOR OF CCP AND THE MENTAL HEALTH MITIGATORS WHERE YOU HAVE THIS COLD, CALCULATED PREMEDITATED INTENT AS THIS COURT FOUND TRANSFERRED TO CHARLES SHAW COUPLED WITH HIS EMOTIONAL DISTURBANCE AND HIS INABILITY TO CONFORM HIS CONDUCT TO THE REQUIREMENTS OF THE LAW. THEY BOTH SAID THEY KNEW CCP WAS AN IMPORTANT ISSUE BUT THEY ONLY, THEY DIDN'T WORK

11 TOGETHER. THEY SAID, WELL WE'RE GOING TO TRY TO FIND SOME TYPE OF A MENTAL HEALTH DEFENSE. THEY CAN DO INSANITY. THAT IS PERFECTLY REASONABLE TO DO AN INSANITY DEFENSE ALTHOUGH MAYBE IT DIDN'T REALLY FIT IN THIS CASE BUT ONLY IF YOU TIE IT INTO THE PENALTY PHASE. IT IS LIKE, THERE IS A REASONABLE STRATEGY TO DO KIND OF LIKE A DOUBLE PENALTY PHASE WHERE YOU PRESENT A MENTAL HEALTH DEFENSE THAT EVEN THOUGH YOU KNOW YOUR CLIENT IS GOING TO BE FOUND GUILTY YOU'RE TRYING TO GO FOR THE SECOND-DEGREE MURDER. BUT THE JURY -- >> DID YOU EXPLAIN THE ISSUE OF THAT THERE WERE SCHOOL AND MEDICAL RECORDS -- >> YES. >> -- BUT WAS IN SOMEONE ELSE'S FILE AND THE TRIAL COUNSEL NEVER BOTHERED TO GET THOSE RECORDS? EXPLAIN HOW THAT HAPPENED. >> KEN GARBER, IS EXPERIENCED LAWYER, PUBLIC DEFENDER I THINK FOR 30 YEARS. HE METHODICALLY WENT THROUGH AND BEGAN A SOCIAL HISTORY. WHAT WAS IN HIS FILE WERE SCHOOL RECORDS THAT INDICATED HIS CLIENT WAS A MIGRANT STUDENT. >> OKAY. YOU'RE IN REBUTTAL. >> HE THEN WAS -- >> HE WAS NO LONGER IN THE CASE AT A CERTAIN POINT? BUT WHAT WAS IN HIS -- HE GAVE THEM THE DISCOVERY BUT HIS WORK PRODUCT HE DIDN'T COPY FOR

12 THEM. HE WROTE A LETTER. >> THE NEW DEFENSE LAWYERS NEVER BOTHERED TO GET THIS INFORMATION? >> YES. THERE IS TESTIMONY -- >> I WOULD START WITH THAT ONE WHICH SEEMS PRETTY INCREDIBLE THAT THEY WOULDN'T DO THAT. >> THERE IS NO TESTIMONY THEY EVER WENT TO HIS OFFICE AND GET COPIES. NOT THAT THEY JUST DIDN'T GET THE SCHOOL RECORDS, THEY DIDN'T EVEN, THE PRIOR ATTORNEY DID GET THE SCHOOL REPORTS AND THEY NEVER BOTHERED TO GET IT. >> HE SAID HE DIDN'T GET THEM BECAUSE HE DIDN'T THINK WOULD BE HELPFUL. YOU'RE SAYING THERE ARE HELPFUL INFORMATION IN THE SCHOOL RECORDS? >> THAT HE WAS A MIGRANT STUDENT WHICH WOULD HAVE TRIGGERED A REASONABLE ATTORNEY TO LOOK INTO WHETHER THAT IMPACTED JOEL DIAZ AND THAT HE DID, HE FAILED TWO GRADES AND THAT HE, AND THAT HE HAD, WELL, THERE WAS POOR PERFORMANCE. IT WASN'T LOW IQ BUT VERY POOR SCHOOL RECORDS. >> WHAT WERE THE I.Q. AND SCHOOL RECORDS? >> HE DID NOT HAVE A PRIOR I.Q. TEST. >> YOUR ONLY I.Q. TESTING IS SHOWING WHAT? >> 57, WHICH I THINK IS LOW. MIGHT HAVE -- >> -- TRIAL JUDGE REFUSED TO FOLLOW FOR -- >> PURPOSE OF MENTAL RETARDATION. >> THAT'S WHAT I THOUGHT.

13 >> WHEN YOU SAY YOU THINK IT'S LOW YOU THINK IT'S INACCURATE? >> THERE WAS SOME TESTIMONY THAT DEPRESSION MAY HAVE, MAY HAVE SUPPRESSED THE SCORE. HE ALSO, DR. -- >> WHAT IS RELIABLE IQ? >> THERE WAS A PRIOR WASI OF 77 AND A PRIOR WSAI OF 86. >> IN WHAT? >> CLOSE TO MILD MENTAL RETARDATION RANGE. >> THEY CHARACTERIZED HIM AT TRIAL AS WHAT? >> AVERAGE. ALSO THE NEUROPSYCHOLOGICAL TESTING PERFORMED IN THE LOWER ONE TO 2% RANGE ON SOME FACTORS THAT IMPACTED HIS BRAIN, HIS IMPULSE CONTROL AND THE CRIME. BEFORE I SIT DOWN ON THE JUROR ISSUE I JUST WANT TO SAY ONE THING. I THINK IT'S A TOTALITY OF THE CIRCUMSTANCES TEST. THE CASES CITED BY THE STATE AND THE TRIAL COURT TALK ABOUT KIND OF BLACK LETTER LAW. THE JURORS WERE NEVER DIRECTLY ASKED THE QUESTION, HAVE YOU EVER BEEN ARRESTED BUT I THINK IF YOU LOOK UNDER BERNAR AND DE LA ROSA YOU LOOK ALL THE CIRCUMSTANCES WHAT WAS BEING ASKED AND THE PERSPECTIVE OF THE JUROR. THAT IS ALL I WANT TO SAY ABOUT THAT. HERE THE TRIAL ATTORNEYS DID NOT DO A REASONABLE INVESTIGATION. THEY DIDN'T GET WHAT WAS IN THE FILE. THEY DIDN'T DO WHAT THE STANDARDS ARE UNDER THE ABA GUIDELINES WHICH IS TO GET THE

14 RECORDS, THE BIRTH CERTIFICATES. WE KNOW HE WAS BORN AT HOME. THERE IS NO STRATEGY. WE DON'T GET THE STRATEGY WHEN THERE WASN'T A REASONABLE INVESTIGATION. WITH THAT I WILL USE THE REMAINING TIME FOR REBUTTAL. THANK YOU. >> MAY IT PLEASE THE COURT. ASSISTANT ATTORNEY GENERAL STEPHEN AKE FROM THE STATE OF FLORIDA. THE TRIAL SUPPORTED BY COMPETENT SUBSTANTIAL EVIDENCE. I'D LIKE TO CLARIFY A LITTLE BIT WHAT COUNSEL ENDING UP TALKING THERE THE FILE, WHO HAD WHAT INFORMATION AND WHAT HAVE YOU. KENNETH GARBER WAS THE ORIGINAL ATTORNEY, ASSISTANT PUBLIC DEFENDER. HE WAS ON THE CASE ORIGINALLY. THE TESTIMONY, DESPITE THE ALLEGATIONS IN THE BRIEF THAT SUBSEQUENT COUNSEL NEVER WENT AND LOOKED AT THE FILE, THAT'S INCORRECT. SUBSEQUENT COUNSEL PORTER TESTIFIED THREE OR FOUR TIMES AT THE EVIDENTIARY HEARING HE GOT THE INFORMATION FROM GARBER'S FILE. THE ONLY EXCEPTION WAS GARBER'S WORK PRODUCT, HIS OWN PERSONAL NOTES WERE NOT TURNED OVER. >> LET'S GO TO WHAT THE. ACTUAL RECORDS SAY. I THOUGHT THE SCHOOL RECORDS, THE MEDICAL RECORDS, THE RECORDS MY UNDERSTANDING IS THAT HE NEVER COPIED THOSE. THOSE WEREN'T PROVIDED TO HIM AND HE DIDN'T GO AND GET THEM

15 BECAUSE HE DIDN'T THINK THEY WOULD BE OF ANY USE. WAS THAT NOT HIS TESTIMONY? >> THAT WAS THE OTHER ATTORNEY'S TESTIMONY, NEIL POTTER. >> DID THEY HAVE THE SCHOOL RECORDS OR NOT? >> THEY WERE NOT IN THEIR FILE. THAT DOES NOT MEAN, HE COULD NOT RECALL BECAUSE IT HAD BEEN OVER 10 YEARS BUT THEY WEREN'T IN THE FILE. >> SCHOOL RECORDS, AGAIN, YOU HAVE A 24-YEAR-OLD. YOU HAD A CRIME THAT IS, YOU KNOW, OUT OF THE NORM. OUT OF THE NORM FOR EVERYBODY BUT, YOU KNOW, FOR THIS 24-YEAR-OLD. CLEARLY DISTRAUGHT ABOUT HIS GIRLFRIEND AND SETTING OUT HE IS GOING TO KILL HER AND KILL HIMSELF. THERE IS NO QUESTION ABOUT THAT. YOU'VE GOT, HE DOESN'T GET TO KILL THE GIRLFRIEND, SO HE GOES IN THE HOUSE AND DOES THIS BIZARRE THING, SAD TRAGIC THING OF KILLING THE, HER FATHER AND THEN SITTING THERE AND WAITING FOR THE POLICE. YOU, WHAT IN A, THE DEFENSE ATTORNEY'S MIND WOULD BE, I NEED TO FIND JUST WHAT WAS SAID, EVERYTHING ABOUT THIS DEFENDANT FROM BIRTH TO 24 TO UNDERSTAND WHAT MIGHT HAVE CAUSED, BECAUSE THERE IS NO ISSUE OF GUILT. HE'S THERE. >> THIS IS LIKE, NOTHING TO DO ABOUT GUILT EXCEPT FOR TRY TO DO INSANITY.

16 >> TO SAY THIS IS A VERY MITIGATED CRIME. AND YOU KNOW, WE STRUCK HAC. THAT LEAVES TRANSFERRED INTENT CCP AND CONTEMPORANEOUS FELONY. SO GOING BACK TO IT WHAT WOULD YOU NOT DO ABOUT GETTING SCHOOL RECORDS THAT MIGHT SHOW THAT YOU HAD A CHILD THAT WAS MARGINALLY FUNCTIONING INTELLECTUALLY? PLEASE EXPLAIN THAT TO ME. >> WHAT HAPPENED WAS PRIOR TO TRIAL DIAZ WAS EXAMINED BY THREE MENTAL HEALTH EXPERTS AND THEY HAD THE REPORTS OF THOSE EXPERTS THAT DISCUSSED HIS GENERAL INTELLIGENCE AS BASICALLY BEING NORMAL. >> DID THEY DO I.Q. TESTING? >> ONE OF THEM DID, YOUR HONOR. >> WHAT DID THAT TEST SHOW? >> THAT WAS A WASI CAME BACK WITH AN 86. >> SO THE 86, IS THAT, WE CONSIDER THAT BASICALLY NORMAL? >> I THINK THAT IS VERY INDICATIVE OF HIS SCORES. THERE WAS TESTIMONY THAT HE TOOK, THE SCHOOL RECORDS SHOW HE TOOK THIS CALIFORNIA ACHIEVEMENT TEST IN HIS ELEMENTARY YEARS FROM KINDERGARTEN THROUGH FIFTH GRADE OR WHAT HAVE YOU AND THOSE CORRELATED TO I.Q. OF 91 UP TO 114. THE TESTIMONY AT EVIDENTIARY HEARING FROM THE STATE'S EXPERT THERE WAS NORMAL ACADEMIC FUNCTIONING IN THIS CASE. HE WAS CAPABLE OF -- >> DID HE FAIL TWO GRADES OR NOT? >> YES. >> ALL, WE'RE NOT TALKING ABOUT

17 PREJUDICE. >> I'M JUST ASKING ONE OF THE THINGS THROUGHOUT THE TIME I'VE BEEN HERE AND I THINK THE ABA SAYS IT, YOU START WITH RECORDS. YOU CAN GET EXPERTS TO SAY UNFORTUNATELY OR FORTUNATELY JUST ABOUT ANYTHING BUT YOU START WITH THE RECORDS BECAUSE SOMETIMES THE RECORDS REVEAL THINGS THAT LEAD YOU THEN ON THE PATH AND FOR A DEFENSE LAWYER TO SAY EITHER, I DIDN'T THINK THEY WOULD BE HELPFUL, IS, WHEN THEY'RE ALREADY IN SOMEONE'S FILE I DON'T GET THAT. >> AND YOU'RE SAYING THEY MIGHT HAVE HAD THEM BUT THEY DIDN'T USE THEM AND THEY'RE NOT IN THE FILE. SO THE, I THOUGHT THAT THE EVIDENCE WAS THAT HE DIDN'T THINK THEY WERE IMPORTANT TO OBTAIN. IS THAT TRUE OR NOT TRUE? >> THAT WAS NEIL POTTER'S TESTIMONY. HE WAS PRIMARILY RESPONSIBLE FOR THE PENALTY PHASE. UNFORTUNATELY -- >> WHY ARE WE NOT, WHY ARE YOU, SO THEN THAT IS WHAT HAPPENED? THEY DIDN'T OBTAIN THESE RECORDS THAT WERE CLEARLY IN THE PRIOR DEFENSE LAWYER'S FILE AND THERE IS INFORMATION IN THESE RECORDS THAT MAY HAVE BEEN HELPFUL TO USE IN STRATEGIZING ON HOW YOU'RE GOING TO PRESENT MITIGATION. >> WELL THEY MAY HAVE BEEN BUT I WOULD ARGUE THAT THERE WAS NO

18 PREJUDICE EVEN, EVEN IF -- >> NOW, AS I SAID WE START WITH ONE OR THE OTHER BUT YOU WERE STARTING WITH NO DEFICIENCY. >> I WAS TRYING TO CLARIFY THE FILE SITUATION BECAUSE NEIL POTTER DID TESTIFY ABOUT THAT HE WAS PRIMARILY THE PENALTY PHASE. THE GUILT PHASE ATTORNEY PORTER TESTIFIED IN DETAIL ABOUT THIS AT THE EVIDENTIARY HEARING. NEIL POTTER NEVER REALLY TESTIFIED MUCH. ALL HIS TESTIMONY WAS I CAN'T RECALL IF I TALKED TO GARBER. >> THIS NOT RECALLING STUFF, WHICH I UNDERSTAND HAPPENS BUT WHEN THE PENALTY PHASE LAWYER WHO'S RESPONSIBLE FOR IT SAYS, I DIDN'T GET IT BECAUSE I DIDN'T THINK IT WAS IMPORTANT, AND THE GUILT PHASE LAWYER, I MEAN SUPPOSED TO HAVE TWO LAWYERS IN THERE SO YOU HAVE A COORDINATED CONDUCT. >> OKAY? LET'S LOOK AT THE SCHOOL RECORDS. AND THE OTHER PART, I DO NOT UNDERSTAND AND EXPLAIN IT TO ME, HOW WHEN YOU HAVE MOUNTED AN INSANITY DEFENSE, DID THEY MOUNT -- >> YES. >> THAT IS THE ONLY DEFENSE. >> WHAT CARRIES, WERE THEY CARRYING OVER WHATEVER WAS THE FAILED INSANITY DEFENSE INTO -- >> THE PENALTY PHASE. >> TO THE PENALTY PHASE. WHAT WAS PUT ON BY THEM IN THE PENALTY PHASE? >> THE ONLY LIVE TESTIMONY AT

19 THE PENALTY PHASE WAS THE SISTER AND JOEL DIAZ HIMSELF AND THEY RELIED ON THE GUILT PHASE BECAUSE THEY ACTUALLY INTRODUCED THE REPORT FROM DR. KLING AND THE STATE'S EXPERT, DR. KEOWN IN EVIDENCE AT THE GUILT PHASE. >> I GUESS MY PROBLEM WITH THAT IS THAT, AGAIN, YOU'VE GOT A SITUATION, YOU FAILED ON SHOWING HE'S INSANE AND THAT'S WHAT YOU WERE SAYING. SO THE ISSUE FOR INSANITY IS VERY DIFFERENT THAN THE ISSUE FOR MENTAL HEALTH MITIGATION. WHAT WAS THEIR REASONING AFTER THEY LOST ON INSANITY? THEY KNOW THEY HAVE CONCEDED GUILT ESSENTIALLY BY SAYING, THAT'S WHAT YOU HAVE TO DO, RIGHT? >> FOR INSANITY, THAT HE DID IT BUT WASN'T CAPABLE. SO IT'S NOT A QUESTION, LISTEN, THIS GUY DID IT. NOW WE HAVE TO EXAMINE WHAT WOULD MAKE A DISTRAUGHT BOYFRIEND TRY TO KILL HIS GIRLFRIEND AND THEN KILL THE FATHER? SO HOW DO YOU NOT PUT ON CREDIBLE MENTAL HEALTH TESTIMONY? WHERE'S THE DOWNSIDE ON IT? >> WELL, YOUR HONOR, THEY DID PRESENT IT AT THE GUILT PHASE BUT THEY DIDN'T RECALL HIM AT THE PENALTY PHASE. >> THAT'S WHAT I'M SAYING TO YOU. WHEN YOU PRESENT IT AT THE GUILT PHASE YOU'RE PRESENTING IT FOR A DIFFERENT REASON. I UNDERSTAND THEY SAID THAT.

20 WAS THERE A REASON WE THOUGHT THEY WOULD REMEMBER AT THE GUILT PHASE? IS THAT WHAT THEY SAID? >> NO, YOUR HONOR. WHAT THEY SAID IS TWOFOLD. THE CLIENT DIDN'T WANT THAT EVIDENCE PRESENTED. HE DIDN'T WANT THEM INVESTIGATING THAT ASPECT. THE OTHER THING THEY HAD THE REPORTS. THERE WASN'T JUST THAT MUCH IN THEM TO PRESENT. BASICALLY THE REPORT SHOWS THAT HE HAS ANGER ISSUES AND HE WAS DEPRESSED. THAT IS PRETTY MUCH THE GIST OF ALL THE MENTAL MITIGATION IN THIS CASE. HE HAS SEVERE ANGER ISSUES AND AT THAT WAS PRESENTED TO THE JURY. >> HOW DO YOU THINK, YOU DON'T THINK A HISTORY FROM THE POINT OF WHEN WE WAS BORN UP UNTIL HIS LIFE THERE WAS REPORTED OR RECORDED BY MISS ECKERT IN HER ARGUMENT MIGHT BE VERY POWERFUL? >> NO, THAT WOULD NOT HAVE GONE OVER WELL WITH THE JURY, YOUR HONOR, BECAUSE IT WASN'T ACTUALLY FACTUALLY CORRECT, FIRST OF ALL. HE WAS NOT A MIGRANT FARM WORKERíS CHILD. HE GREW UP IN THE CITY OF FORT MYERS IN A RESIDENTIAL AREA. HE LIVED IN LOW-INCOME HOUSING PROJECTS AT SOME POINT IN TIME BUT HE ALSO LIVED IN A HOME. THE TESTIMONY IS VERY VAGUE WHAT HE DID HIMSELF. I WILL GRANT HIS MOTHER WAS APPARENTLY A MIGRANT FARM

21 WORKER FROM TEXAS AND THEY MOVED HERE WHEN DIAZ WAS ABOUT FIVE. >> WAS THERE VIOLENCE IN THE HOUSE? >> YES. THAT WAS PRESENTED. >> THAT HE WITNESSED? >> YES. >> THAT WAS PRESENTED -- >> THROUGH THE SISTER. >> BUT DON'T YOU NEED AN EXPERT TO EXPLAIN HOW THE CYCLE OF VIOLENCE INFLUENCES A CHILD AS IT BECOMES AN ADULT IN TERMS OF HOW THEY DEAL WITH RELATIONSHIPS? >> RIGHT, WELL SOME OF THAT DID COME OUT IN THE GUILT PHASE, YOUR HONOR, AND IT WAS CERTAINLY IN THE REPORT. THE JURY WAS AWARE OF THAT. >> YOU THINK IT'S IN A REPORT AND JURY WILL KNOW TO READ THE REPORT AND MAKE THEIR DECISION ON MITIGATION? >> PRESENTED FOR THEIR AVAILABILITY. IT WAS PRESENTED AT THE GUILT PHASE. THAT WAS THEIR WHOLE, HE GREW UP IN THIS VIOLENCE AND HE HAD THIS ANGER ISSUES BUT THERE WAS, YOU'RE SAYING. >> YOU'RE SAYING THERE WAS EXPERT TESTIMONY -- >> -- CONCERNING THAT. >> NOT JUST IN THE REPORT BUT THE EXPERT IS ACTUALLY TESTIFYING ABOUT THAT AND THAT IS BEING PRESENTED IN LIVE EXPERT TESTIMONY TO THE JURY? >> CORRECT, YOUR HONOR. THAT CAME OUT AT THE GUILT PHASE.

22 >> I GUESS THE PROBLEM IS WHEN THE JURY HAS REJECTED INSANITY TO DECIDE THEN TO SAY EVEN THOUGH YOU DIDN'T BELIEVE HIM ON THIS LET'S REEXPLAIN THIS I JUST THINK -- >> I THINK IT WOULD BE CUMULATIVE. >> HUH? >> IT WOULD BE CUMULATIVE WHAT THEY TESTIFIED IN THE GUILT PHASE. MIGHT BE A LITTLE MORE DETAILED. >> WHEN DID THE PENALTY PHASE START? >> THE TRIAL WAS THE VERY END OF THE JULY, LAST WEEK OF JULY I BELIEVE AND THE PENALTY PHASE WAS THE FIRST WEEK OF OCTOBER. >> SO, I DON'T REMEMBER WHAT HAPPENED LAST NIGHT. YOU'RE TELLING ME THE JURY WAS GOING TO JUST GOING ABOUT ITS BUSINESS AND BY OCTOBER WOULD SAY THAT, SURE THEY REMEMBER EXACTLY WHAT THE TESTIMONY WAS? >> THAT WAS THE WHOLE DEFENSE AT TRIAL, YOUR HONOR. I'M SURE THEY HAD TO REMEMBER THAT ONE. THAT WAS THE ONLY THING THAT THE DEFENSE PRESENTED AT TRIAL. >> HOW DID, TELL US HOW THE DEFENSE ACTUALLY ARGUED IN THE PENALTY PHASE THE MITIGATING? >> WELL, THEY ATTACKED THE AGGRAVATORS AND -- >> I'M SORRY, THEY DID WHAT? >> THEY ATTACK THE AGGRAVATING CIRCUMSTANCES AND SPENT TIME ON THAT AND THEY DISCUSSED THE MITIGATION FROM THE SISTER AND -- >> I GUESS THE REAL QUESTION

23 THOUGH IS, DID THEY DISCUSS, IF THEY WERE RELYING ON THE INFORMATION THAT WAS PRESENTED IN THE GUILT PHASE ABOUT MENTAL HEALTH, DID THEY REARGUE IN THE PENALTY PHASE THE EVIDENCE THAT WAS ACTUALLY PRESENTED? >> MY RECOLLECTION IS THEY DID. THEY WERE SEEKING THE STATUTORY MENTAL MITIGATORS. IN FACT THEY GOT ONE OF THOSE FROM THE TRIAL JUDGE. HE ACTUALLY FOUND ONE OF THE MENTAL MITIGATORS AND FOUND THE SECOND ONE WITHOUT THE ADJECTIVE OF SUBSTANTIAL. FOUND THE ABILITY WAS IMPAIRED BUT NOT SUBSTANTIALLY IMPAIRED. >> BUT THEY DID IN FACT ARGUE IN THE PENALTY PHASE WHAT WAS ACTUALLY PRESENTED? >> YOUR HONOR, I DON'T HAVE A SPECIFIC RECOLLECTION. I DIDN'T REVIEW THAT PART OF IT BEFORE I CAME HERE AND I DON'T REMEMBER EXACTLY WHAT THEY SAID ON THAT. I REMEMBER REVIEWING MY NOTES THAT THEY HAD, YOU KNOW, ADDRESSED THE AGGRAVATORS AND ADDRESSED THE SISTER'S TESTIMONY BUT I DON'T REMEMBER EXACTLY WHAT THEY SAID. I COULDN'T TELL YOU. I WOULD HAVE TO GO BACK AND LOOK AT THAT. >> TO WHAT EXTENT DOES THE SISTER'S TESTIMONY ACTUALLY TALK ABOUT THEIR LIFE GROWING UP? >> WELL SHE TALKED ABOUT THAT THEY WERE RAISED IN THE LOW-INCOME HOUSING PROJECTS. THAT HE QUIT SCHOOL AT NINE

24 YEARS OLD OR, I'M SORRY, AFTER NINTH GRADE. HE QUIT SCHOOL TO GO TO WORK BECAUSE THEY WERE LOW INCOME AND THE FATHER WAS ABUSIVE AND THEY HAD TO SUPPORT THE FAMILY BY GOING TO WORK. AND I WOULD ADD THAT BY GOING TO WORK, DIAZ WENT TO WORK AS A BUSBOY AT RESTAURANTS AND VARIOUS THINGS LIKE THAT AND EVENTUALLY ENDED UP AT A LUMBER COMPANY. THIS WAS NOT MIGRANT FARM WORK HE WAS DOING. AGAIN THE TESTIMONY WAS HE DID LIKE A WEEK ONE TIME AT 12 YEARS OLD IN FARM WORK AND PRETTY MUCH THE REMAINDER OF HIS WORK HISTORY WAS ALL -- >> AS I UNDERSTOOD PART OF THEIR ARGUMENT IS THAT HE SPENT A LOT OF TIME IN THE FIELD. >> YEAH. >> THAT HE WAS SUBJECT TO A LOT OF PESTICIDES AND HERBICIDES AND THOSE KINDS OF THINGS. AND SO WHAT DO WE HAVE IN THE RECORD THAT SUPPORTS THAT HE HAD THIS KIND OF EXPOSURE. >> THERE WAS TESTIMONY THEY BROUGHT IN FROM A SOCIAL WORKER AND FROM A PROFESSOR REGARDING THE WHOLE CULTURE OF MIGRANT FARM WORKERS AND THEY TALKED ABOUT VARIOUS VAGUE INTERVIEWING THINGS BUT WHAT CAME OUT OF THAT WAS JOEL DIAZ REPORTED ONE TIME BEING SPRAYED WITH A PESTICIDE. THE EVIDENCE SHOWED THAT HE APPARENTLY HAD ACCOMPANIED HIS MOTHER AT VARIOUS POINTS IN TIME AS 10 TO 12-YEAR-OLD CHILD IN THE FIELDS BUT THE SOCIAL SECURITY RECORDS, THE INCOME

25 RECORDS, SHOWED THAT HE HAD ONLY RECEIVED I THINK WAS $300 IN PAY AS A 12-YEAR-OLD FOR WORKING IN QUINCY, FLORIDA, AT A PACKING HOUSE OR SOMETHING OF THAT NATURE. THERE SIMPLY WASN'T THAT MUCH. THEY TRIED TO PAINT THE PICTURE OF DIAZ IS LIVING OUT ON A MIGRANT FARM. THAT WAS NOT THE CASE. HE WAS LIVING IN THE CITY OF FORT MYERS IN A RESIDENTIAL AREA FROM AGE, KINDERGARTEN, FIVE YEARS OLD ALL THE WAY THROUGH. HIS WORK HISTORY MAINLY AS A YOUNG ADOLESCENT UP UNTIL THE TIME OF THE CRIME WAS ALL RESTAURANT TYPE WORK OR WORKING FOR THE LUMBERYARD WHERE HE HAD WORKED FOR FOUR YEARS PRIOR TO THE CRIME. >> WHAT, REMIND ME, WHAT'S THE TIME FRAME THE VICTIM THAT WAS SHOT -- >> -- WHAT WAS THE TIME FRAME WHEN THEY STOPPED LIVING TOGETHER. >> SHE MOVED BACK IN WITH -- >> THE TIME. >> IT WAS I BELIEVE EIGHT OR NINE MONTHS THEY HAD BEEN BROKEN UP. THEY HADN'T EVEN SPOKEN FOR AT LEAST A MONTH BEFORE BUT I THINK IT WAS EIGHT TO NINE MONTHS BREAK-UP BEFORE THE ACTUAL MURDER TOOK PLACE. >> WHAT WAS GOING ON DURING THAT TIME PERIOD? >> NOT MUCH. HE WAS TEXTING HER, BASICALLY TRYING TO RE-ESTABLISH CONTACT WITH HER AND SHE DIDN'T WANT TO ENGAGE IN THAT AND WOULDN'T

26 RETURN HIS TEXTS AND THAT KIND OF NATURE OF IT. LIKE I SAID, IT HAD BEEN A MONTH BEFORE THEY HAD ANY CONTACT PRIOR TO THE ACTUAL MURDER. THEY HAD LIVED TOGETHER FOR I BELIEVE, I THINK THEY DATED FOR TWO YEARS AND LIVED TOGETHER FOR A YEAR. SHE HAD TESTIFIED PRETTY EXTENSIVELY AS TO THE WHOLE ADAPTIVE FUNCTIONING AND MENTAL RETARDATION CLAIMS. >> BUT I GUESS I THOUGHT I REMEMBERED SOMETHING ABOUT VARIOUS CONTACTS BETWEEN THEM FROM THAT TIME WHERE HE TRIED TO ASSAULT HER AND IN A PARKING LOT OR SOMETHING? THERE WERE -- >> THERE WAS SOME KIND OF CONTACT BETWEEN THEM OF A VIOLENT NATURE I ASSUME BETWEEN THE TIME THAT THEY BROKE UP AND THE TIME OF THE MURDER? THERE WAS THIS WESTERN AUTO INCIDENT WHERE THE VICTIM, I BELIEVE HE APPROACHED HER AND TRIED TO KIDNAP HER AND BEAT HER, WHAT HAVE YOU AND SHE FILED A RESTRAINING ORDER AGAINST HIM BUT THAT WAS MONTHS BEFORE IF MY RECOLLECTION IS CORRECT. >> MY FINAL QUESTION, WHAT IS THE STATE OF THE RECORD ABOUT ANY KIND OF MENTAL HEALTH COUNSELING OR ANYTHING ABOUT -- >> I DON'T BELIEVE HE EVER HAD ANY. I DON'T BELIEVE THAT, THERE WERE NO EXPERIENCES WITH ANY KIND OF MENTAL HEALTH PRACTITIONERS PRIOR TO THEM BEING APPOINTED

27 IN THIS CASE. I DON'T BELIEVE HE HAS EVER, I THINK THE EXPERTS ASKED HIM THAT AND HE SAID HE HAD NEVER SEEN THOSE OR NEVER SEEN A PSYCHIATRIST OR ANY KIND OF MENTAL HEALTH EXPERT. I WANTED TO BASICALLY BRIEFLY GO OVER THE FILE THING WITH DR. CROWELLíS REPORT -- WASN'T IN HIS FILE I WOULD POINT OUT IT WAS MAILED TO --. I'M TROUBLED BY THIS COURT FINDING THAT THINGS THAT WEREN'T IN THEIR FILE AND THEY COULDN'T RECALL SHOW DEFICIENT PERFORMANCE AND WANT TO STRESS THAT BASICALLY IT WAS OVER 10 YEARS OR ABOUT 10 YEARS I THINK IT WAS FROM THE TIME OF THE TRIAL TILL THE TIME OF EVIDENTIARY HEARING AND COUNSEL HAD DIFFICULT TIME RECALLING WHAT ALL HE HAD DONE. >> I MEAN IT'S CLEAR THAT THESE RECORDS WERE NOT IN THEIR FILE? >> WHETHER ONE ATTORNEY SAYS HE ACTUALLY HAD THEM AND SAW THEM -- >> -- THAT COULD OR COULDN'T, MAY OR MAY NOT BE THE CASE BUT WE DO KNOW THEY WERE NOT IN THE FILE. >> IS THERE ANY INDICATION THAT ANYTHING THAT WAS IN THESE RECORDS WAS ACTUALLY USED DURING EITHER THE GUILT PHASE OR THE PENALTY PHASE OF THE TRIAL? >> WELL AS I SAID THE TWO EXPERTS REPORTS WERE ACTUALLY INTRODUCED INTO EVIDENCE. THE THIRD ONE WAS NOT,

28 DR. CROWELLíS REPORT WAS NEVER INTRODUCED AND MUCH BRIEFER REPORT, 2 1/2 PAGES LONG. BUT THE OTHER TWO WERE ADMITTED INTO EVIDENCE. ONE BY THE STATE AND ONE BY THE DEFENSE. >> THEY SHOWED THEY REVIEWED THE SCHOOL RECORDS? >> NO, THEY DO NOT. >> I THOUGHT THAT WAS -- >> THE TESTIMONY WAS THAT HE BASICALLY HAD DONE AVERAGE IN SCHOOL, WHICH WAS ACCURATE WHEN HE PUT FORTH AN EFFORT APPARENTLY BUT -- >> BASED ON AGAIN, THIS SHOULDN'T BE THAT HARD. IF A CHILD DROPS OUT IN NINTH GRADE AND HE HAS FAILED TWO YEARS, THAT'S NOT DOING AVERAGE IN SCHOOL. >> HE TESTIFIED THAT HE FAILED KINDERGARTEN, SECOND GRADE, LANGUAGE. GREW UP IN SPANISH SPEAKING HOME AND MOVED INTO ENGLISH LANGUAGE CLASSES. >> HE TESTIFIED WHEN? >> DIDN'T MEAN TO TESTIFY. HE TOLD THAT TO DR. GAMACHE IN HIS INTERVIEW. THAT IS ON THE VIDEOTAPES. >> WHAT DO THE RECORDS SHOW WHY HE FAILED THOSE GRADES? >> I THINK THAT IS PROBABLY ACCURATE BASED ON SCHOOL RECORDS. >> HE FAILED KINDERGARTEN BECAUSE -- >> HE COULDN'T SPEAK ENGLISH. THE SCHOOL RECORDS SHOW HE WAS MORE THAN CAPABLE OF MAKING AVERAGE GRADES, YOU KNOW. WHETHER, AS TO DR. GAMACHE, THEY DON'T SHOW ANY INDICATION OF

29 INTELLECTUAL IMPAIRMENT. >> HE DROPPED OUT OF SCHOOL -- >> TO GO TO WORK. >> --TO HELP HIS MOTHER? >> HE WANTED TO GO TO WORK TO SUPPORT THE FAMILY. >> AT WHAT AGE WAS THAT? >> WHEN HE WAS IN NINTH GRADE AND I WAS OLDER THAN YOUR AVERAGE STUDENT. I DON'T REMEMBER. I THINK 14 OR 15. I'M NOT SURE. BRIEFLY -- >> IF HE FAILED TWO GRADES SEEMS TO ME WOULD BE 15 OR 16? >> THAT MAY BE. I THINK IT WAS 15 BUT I'M NOT 100% ON THAT. FOR SOME REASON THAT STICKS OUT BECAUSE I BELIEVE HE STARTED WORKING AS A BUSBOY AT 15 OR 16 AT A PERKINS. I THINK THAT'S WHEN HE HAD QUIT SCHOOL. I WANTED TO BRIEFLY, VERY BRIEFLY, TALK ABOUT THE JUROR ISSUE. THE JUROR NEVER GAVE ANY FALSE ANSWERS IN THIS CASE. SHE WAS NEVER ASKED -- >> WHAT WAS THE ACTUAL STATE, THE JUROR WAS WHAT? UNDER, HAD BEEN ARRESTED? >> SHE HAD BEEN ARRESTED FOR DOMESTIC VIOLENCE AND COMPLETED A PRETRIAL INTERVENTION PROGRAM PRIOR TO JURY SELECTION. SHE WAS NEVER ASKED, HAD SHE EVER BEEN ARREST. THE JURORS WERE ASKED IF FAMILY MEMBERS OR CLOSE FRIENDS HAD EVER BEEN ARRESTED AND ALL OF THEM RESPONDED APPROPRIATELY AS TO THAT. ONLY ONE JUROR RELAYED HIS OWN

30 PERSONAL EXPERIENCE WITH THE LAW IN FRONT THE ENTIRE VENIRE. I DON'T THINK IT IS REASONABLE YOU CAN SAY ALL THE JURORS WERE ON NOTICE. >> SHE ACTUALLY SERVED ON THE JURY? >> SHY WAS THE FOREPERSON, YES. I WOULD ASK THIS COURT TO AFFIRM THE TRIAL COURT'S ORDER DENYING POST-CONVICTION RELIEF. THANK YOU. >> JUSTICE QUINCE, THE, MR. DIAZ AND LISSA SHAW LIVED TOGETHER UNTIL 1997 WHEN THEY BROKE UP AND THIS CRIME OCCURRED AT THE END OF THE OCTOBER. THERE WAS EVIDENCE THAT WAS PRESENTED IN THE, IT WAS IN THE REPORT THAT THERE WAS A RESTRAINING ORDER THAT WAS OBTAINED EVEN THOUGH EVERYONE AGREED -- >> I'M SORRY THERE WAS EVIDENCE THAT WHAT? >> SHE TRIED TO GET A RESTRAINING ORDER AGAINST HIM. THAT WAS ENTERED INTO EVIDENCE IN THE REPORT. >> FOR WHOM WAS THAT RESTRAINING ORDER? >> IT WAS NEVER SERVED ON HIM BUT THE RESULT OF A VIOLENT INCIDENT. >> IF THEY WENT AHEAD AND THEY HAVE ALL THIS MENTAL HEALTH INFORMATION IN THE GUILT PHASE, WHY IS THAT NOT REASONABLE THEN TO REFER TO IT AND ARGUE IT IN THE PENALTY PHASE? >> BECAUSE THEY DIDN'T ARGUE IT. JUSTICE QUINCE WAS ASKING ABOUT WHAT NEIL POTTER ARGUED. I SET FORTH WHAT HE TALKED

31 ABOUT ON THAT ISSUE ON PAGES 22 AND 23 OF MY REPLY BRIEF. I PUT THE WHOLE TRANSCRIPT. HE MENTIONED DR. CROWELL ONE TIME. I WANT YOU TO FIND THE STATUTORY MENTAL HEALTH MITIGATORS. BUT HE NEVER SAID, TAKE A LOOK AT THOSE REPORTS IN EVIDENCE. HE NEVER SUGGESTED IT. THIS IDEA THEY WERE ENTERED INTO EVIDENCE STRATEGICALLY WAS NOT TRUE. >> WERE THEY A PART OF THE PENALTY PHASE ALSO? >> ABSOLUTELY NOT. THEY WERE NEVER MENTIONED ONE TIME. >> DID THE EXPERTS TESTIFY DURING THE GUILT PHASE. >> DURING THE GUILT PHASE, DR. KEOWN AND DR. CLEANING TESTIFIED. >> THOSE ARE THE REPORTS YOU'RE LEVERING TO? >> THE REPORTS WERE ENTERED AT GUILT PHASE. >> PEOPLE TESTIFIED. >> CORRECT? >> DID THEY TESTIFY FULLY OR SAY THEIR NAMES? >> THEY DIDN'T TESTIFY FULLY. DR. KLING TALKED ABOUT LEADING UP TO THE CRIME WITH RESPECT, WITH RESPECT TO INSANITY BUT NO DISCUSSION BY DR. KLING ABOUT THE SEXUAL ABUSE. THAT WASN'T STRATEGIC. >> -- INSANITY. >> WHY YOU NEED TO FOCUS ON IT. EVEN IF YOU'RE JUST RELYING ON HIS REPORT DR. KLING WAS KIND OF DESTROYED IN THE GUILT PHASE. YOU GO TO DR. CROWELL. >> DESTROYED IN WHAT WAY?

32 >> THE PROSECUTOR WAS ABLE TO SHOW HOW MANY OF THE FACTS HE DIDN'T KNOW AND THEY REJECTED THE INSANITY DEFENSE. AND THE TRIAL PROSECUTOR WAS ABLE TO ESTABLISH THAT HE REALLY DIDN'T KNOW MANY OF THE FACTS THAT HE SHOULD HAVE KNOWN. AND SO THE JURY REJECTED HIS TESTIMONY. >> ARE WE TALKING ABOUT MANY OF THE FACTS ABOUT THE CRIME? >> THE CRIME. >> WHICH WOULD HAVE DEMONSTRATED WHETHER HE WAS INSANE AT TIME OF THE COMMITTING THE OFFENSE. >> CORRECT. >> VERSUS ANY FACTS ABOUT HIS LIFE AND THAT KIND OF THING? AND THEN DR. CROWELL NEVER TESTIFIED AND HIS REPORT WAS NEVER ENTERED INTO EVIDENCE. IT WAS IN ONE ATTORNEY'S FILE BUT IT NEVER MADE IT TO THE OTHER ATTORNEY'S FILE. THEY SAID THEY DIDN'T KNOW ABOUT THE LOW I.Q. >> I'M LOOKING HERE WHAT YOU ACTUALLY QUOTE IN YOUR BRIEF AND HE DOES MAKE REFERENCE TO DR. KLING'S TESTIMONY. >> ABOUT THE MENTAL INFIRMITY. THAT'S IT. HE DIDN'T SAY, SAY TAKE A LOOK AT THAT REPORT WHERE HE TALKS ABOUT THE SEXUAL ABUSE. >> HE SUFFERED FROM MENTAL INFIRMITY IS WHAT DR. KLING HAD TO SAY. HE IS REFERRING BACK TO THAT. >> IN THE GUILT PHASE. HE NEVER SAID LOOK AT DR. KEOWN'S REPORT, TAKE A LOOK

33 AT DR. KLING'S REPORT. THEY WEREN'T PUBLISHED TO THE JURY. THE JURY HAD TO AFFIRMATIVELY SAY LET'S LOOK AT REPORT. >> FIND THE EXHIBITS IN THE GUILT PHASE. >> ON THEIR OWN. >> AFTER HOW MANY MONTHS BETWEEN -- >> EXACTLY. THIS IS KIND OF LIKE AFTER THE FACT STRATEGY. CERTAINLY WASN'T STRATEGY. >> TRIAL JUDGE, AS I UNDERSTAND IT, THE TRIAL JUDGE ACTUALLY FOUND BOTH STATUTORY MENTAL MITIGATORS? AND WHAT WERE THOSE BASED ON? >> I DON'T REALLY KNOW. I KNOW DR. KLING ONLY FOUND ONE OF THEM AND THE TRIAL JUDGE FOUND BOTH. UNDER PORTER IT IS CLEAR EVEN IF THE TRIAL JUDGE FOUND THESE MITIGATORS THE ISSUE IS THE JURY, WE HAVE NO IDEA WHAT THE JURY HEARD. >> YOU HAVE NO IDEA WHAT THE TRIAL JUDGE BASED ON? >> IT IS NOT ACTUALLY CLEAR. ALMOST LIKE THEY WERE SAME, BASED ON THE SAME EVIDENCE IS WHAT HE FOUND IT ON. BASED ON THE SAME TESTIMONY BY DR. KLING IN THE GUILT PHASE. BUT THE TRIAL JUDGE IS SOPHISTICATED. HE KNOWS HE CAN LOOK AT THE GUILT PHASE TESTIMONY. THE JURY WAS NEVER REALLY TOLD THAT. >> WAS THERE A SPENCER HEARING? >> THERE WAS A SPENCER HEARING. >> DID THEY ARGUE THE REPORTS

34 IN THE SPENCER HEARING? >> NO, THEY DID NOT. THE ISSUE PRIMARILY IN THE SPENCER HEARING WAS THE CCP AND THE ATTORNEY, MR. DIAZ DID SAY HE DID NOT WANT HIS MOTHER TO TESTIFY AT SPENCER HEARING BUT THAT HAS NOTHING TO DO WITH FAILURE TO INVESTIGATE. MINERVA AND HER MOTHER WENT AND TALKED TO DR. KLING BUT THAT INFORMATION WASN'T FOLLOWED UP ON. JOEL DIAZ, IT IS NOT A FACT THAT JOEL DIAZ DID NOT WANT TO COOPERATE. IT IS NOT TRUE. AFTER THE PENALTY PHASE HE WAS UPSET ABOUT SOME OF THE INFORMATION THAT CAME OUT. HAS NOTHING TO DO WITH WHY THERE WASN'T AN INVESTIGATION IN THIS CASE. >> THANK YOU FOR YOUR ARGUMENTS. THE COURT WILL NOW TAKE A 10 MINUTE RECESS. >> THANK YOU. >> ALL RISE.