IN THE SUPREME COURT OF FLORIDA CASE NO. SC CHARLES W. FINNEY, APPELLANT, STATE OF FLORIDA, APPELLEE.

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1 IN THE SUPREME COURT OF FLORIDA CASE NO. SC CHARLES W. FINNEY, APPELLANT, V. STATE OF FLORIDA, APPELLEE. ON APPEAL FROM THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAL CIRCUIT, IN AND FOR HILLSBOROUGH COUNTY, STATE OF FLORIDA REPLY BRIEF OF APPELLANT PAMELA H. IZAKOWITZ Florida Bar Number S. Westland Avenue P.O. Box 3294 Tampa, FL (863) COUNSEL FOR APPELLANT

2 PRELIMINARY STATEMENT This appeal involves a summary denial of a Rule motion before Circuit Court Judge Chet Tharpe in Tampa, Hillsborough County, Florida. Citations in this brief to designate references to the record, followed by the appropriate page number, are as follows: (R. ) - Record on direct appeal; (PC-R. ) - Record in this instant appeal. STATEMENT OF FONT This brief is typed in Courier 12 point not proportionately spaced. i

3 TABLE OF CONTENTS PRELIMINARY STATEMENT... STATEMENT OF FONT... i i TABLE OF CONTENTS...ii TABLE OF AUTHORITIES... iii ARGUMENT IN REPLY ARGUMENT I THE POST-CONVICTION COURT ERRED IN SUMMARILY DENYING MR. FINNEY S CLAIM THAT HE WAS DEPRIVED OF HIS DUE PROCESS RIGHTS WHEN THE STATE WITHHELD EVIDENCE THAT WAS MATERIAL AND EXCULPATORY AND/OR PRESENTED FALSE OR MISLEADING EVIDENCE. MR. FINNEY WAS ENTITLED TO A FULL AND FAIR HEARING ON THIS CLAIM ARGUMENT II THE POST-CONVICTION COURT ERRED IN SUMMARILY DENYING MR. FINNEY S CLAIM THAT HIS COUNSEL FAILED TO DISCLOSE A CONFLICT OF INTEREST, WHICH RESULTED IN IRREPARABLE HARM TO HIS CASE. MR. FINNEY S RIGHTS TO DUE PROCESS AND A FAIR TRIAL UNDER THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS WERE VIOLATED ARGUMENT III THE POST-CONVICTION COURT ERRED IN FAILING TO DISQUALIFY HIMSELF FROM THE PROCEEDINGS WHEN MR. FINNEY HAD A REASONABLE FEAR THAT HE COULD NOT RECEIVE A FAIR HEARING BEFORE JUDGE THARPE CONCLUSION...25 CERTIFICATE OF SERVICE...26 CERTIFICATE OF COMPLIANCE...27 ii

4 TABLE OF AUTHORITIES CASES Banks v. Dretke, 124 S.Ct (2004)...18, 21 Berger v. United States, 295 U.S. 78 (1935)...21 Bogle v. State, 655 So. 2d 1103 (Fla. 1995)...23 Brady v. Maryland, 373 U.S. 83 (1963)...passim Carroll v. State, 815 So. 2d 601 (Fla. 2002) Craig v. State, 685 So. 2d 1224 (Fla. 1996) Giglio v. United States, 405 U.S. 150 (1972)...passim Gray v. Netherland, 518 U.S. 152 (1996)...17 Guzman v. State, 868 So. 2d 498 (Fla. 2003)... 9 Hoffman v. State, 800 So. 2d 174 (Fla. 2001) Kyles v. Whitley, 514 U.S. 419 (1995)... 10,17 Lemon v. State, 498 So. 2d 923 (Fla. 1986)...25 Mooney v. Holohan, 294 U.S. 103 (1935)...17 Mordenti v. State, 2004 Fla. LEXIS 2253 (December 16, 2004) 9 Rogers v. State, 782 So. 2d 373 (Fla. 2001) Routly v. State, 590 So. 2d 397 (Fla. 1991)...18 Rules of the Supreme Court, 145 Fla. 763 (Fla. 1941)...21 Smith v. Kemp, 715 F. 2d 1459(11 th Cir.)...19 United States v. Ruiz, 711 F. Supp. 145 (S.D.N.Y. 1989)..19 Wright v. State, 857 So. 2d 861 (Fla. 2003) OTHER AUTHORITIES iii

5 Fla. R. Crim. P , 25 Fla. R. Crim. P (2)... 1 Fla. R. Crim. P. Rule (2)(C)... 2 Fla. R. Crim. P. R (3)(c)(iii)... 3 Fla. R. Crim. P (1)(C) Fla. R. Crim. P (i) Fla. R. Crim. P (h)(2)... 3 iv

6 ARGUMENT IN REPLY ARGUMENT I THE POST-CONVICTION COURT ERRED IN SUMMARILY DENYING MR. FINNEY S CLAIM THAT HE WAS DEPRIVED OF HIS DUE PROCESS RIGHTS WHEN THE STATE WITHHELD EVIDENCE THAT WAS MATERIAL AND EXCULPATORY AND/OR PRESENTED FALSE OR MISLEADING EVIDENCE. MR. FINNEY WAS ENTITLED TO A FULL AND FAIR HEARING ON THIS CLAIM. In its Answer Brief, the State repeatedly suggested that Mr. Finney failed to follow the requirements of Fla. R. Crim. P It claims M. Finney filed an untimely motion, made no attempt to meet the pleading requirements, and failed to provide names, addresses, and phone numbers of Brady witness in his post-conviction motion (Answer Brief at 12-13). This is incorrect. Mr. Finney complied with the 25-page limit and raised issues not previously raised, as required in Fla. R. Crim. P (2) regarding successive motions. As attachments to his motion, Mr. Finney submitted copies of the oath of office Mr. Crooks signed indicating that he worked at the Hillsborough County State Attorney s Office at the same time Mr. Finney s case was being prosecuted (PC-R. at ). This information was not previously pled in a Rule motion. Mr. Finney also attached a memo from the CCRC-Middle office, dated June 21, 2001, indicating that CCRC-Middle, the 1

7 agency that had hired Mr. Crooks, described the work done he had done on Mr. Finney s case as a Jack Crooks Special, and that the client is aware of it. Both items were attached to Mr. Finney s Rule motion (PC-R. at ). According to Fla. R. Crim. P. Rule (2)(C), when pleading a Brady/Giglio claim or a newly-discovered evidence claim, the rule requires that names, addresses and telephone numbers of witnesses be included. Mr. Finney pled the information he knew, which was Robert, and Alice Rabidue, based on handwritten notes found in the State Attorney s file. Mr. Finney pled the information he had to the best of his ability. None of these witnesses were listed in the State Attorney file when counsel reviewed it on June 11, 2003 for two hours. Mr. Crooks never obtained a copy of the State Attorney file during public records litigation, even though undersigned counsel had requested it before she left the agency. As argued in his Rule motion, when undersigned counsel was appointed as registry counsel to Mr. Finney s case in February, 2003, she sought all the records in the possession of CCRC-Middle. Fourteen boxes of material were turned over to Mr. Finney in March, On May 20, 2003, another box of records was turned over. Missing from those 14 2

8 boxes of records were any and all records from the Hillsborough County s State Attorney s Office or the Tampa Police Department, the two key agencies that investigated the murder and that prosecuted Mr. Finney for murder. The State in its Answer Brief argues that Had Finney bothered to attach a copy of the [ Dear Robert ] letter for the court s consideration, as required by Rule (3)(C)(iii), the court could review the letter to determine whether it contained any potentially exculpatory information (Answer Brief at 17). The State omitted from its argument that under Fla. R. Crim. P , undersigned counsel had no statutory authority to request that the State Attorney s file be copied and turned over to her since public records records had already been concluded in 1997, while under the watchful eye of Mr. Crooks. Under Rule (h)(2), Mr. Finney had initiated his public records requests in The records supplemented in this case show that on March 4, 1997, Michael Chavis, a CCR investigator for Mr. Finney, made formal requests for public records under Brady v. Maryland and Chapter 119. Those requests were sent to many state agencies, including the Hillsborough County State Attorney s office, which prosecuted 3

9 the case (PC-R. at 30-32). What the supplemental record fails to show, and what the State omitted to explain, is if and when the State Attorney s office or the Tampa Police Department received Chapter 119 requests from CCR and when its documents were turned over. A notice of filing is sent with the request. It is not an acknowledgment that the actual records were sent or received by collateral counsel, but only served as notice to the court that a request for production of documents was made. In Argument II of its Answer Brief, the State alleges that Finney s current counsel has overlooked the fact that she herself represented Finney at the time his public records were being secured. The State neglects to mention that the record reflects numerous public records were requested prior to the filing of Finney s initial postconviction motion (Answer Brief at 26). It does not reflect that the State Attorney file was received. In fact, in the shell motion filed by undersigned counsel in March, 1997, she specifically stated that the State Attorney request is still outstanding. Undersigned counsel, as an assistant CCR, was designated the attorney for Mr. Finney on January 21, On March 28, 1997, undersigned counsel filed Mr. Finney s first motion for post-conviction relief. In that motion, counsel argued that the motion was incomplete because various State agencies, 4

10 including the State Attorney s office, had not complied with the public records requests. Mr. Finney also raised a Brady and a newly-discovered claim, arguing that he could not fully plead these arguments without the public records and without the proper resources (PC-R. at ). On December, 17, 1997, undersigned counsel sought an extension of time in which to file Mr. Finney s motion, arguing that CCR had been abolished and counsel cannot fully plead grounds for post-conviction relief before discovery and public records acquisition have been completed. This Court granted Mr. Finney s extension of time to file an amended motion until June, 1998 (PC-R. 313). Jack Crooks entered his appearance in Mr. Finney s case on March 31, On April 16, 1999, Mr. Crooks filed his First Amended Motion to Vacate Judgments of Conviction and Sentence. No additional motions were filed during the two years between March 28, 1997 and April 16, Mr. Crooks first amended motion was 30 pages long. It did not raise a public records claim or a Brady claim. There were no motions to compel public records filed in Mr. Finney s case from March, 1997 through April 16, 1999, based on the circuit court docket (PC-R. 1-19). The State is quick to cast blame on undersigned counsel for failing to obtain public records and would have this 5

11 Court believe that she is responsible for failing to obtain Mr. Finney s public records two years after she left the office of CCR and no longer represented Mr. Finney. The State makes no distinction between Mr. Finney s initial postconviction motion filed by undersigned counsel in March, 1997, at the beginning of the public records litigation, in which she had not received the State Attorney file, and the Amended Post-Conviction Motion filed by Mr. Crooks after he had been on the case for an additional two years. Mr. Crooks pleading did not contain a public records claim, a Brady/Giglio claim, or a claim based on any public records deficiencies. In fact, the lower court found all five claims were conclusory and not on based on any information gathered from public records or investigation. There was no investigation or development of new facts or issues beyond the face of the record. At the Huff hearing on May 26, 1999, Mr. Crooks conceded that the issues he raised were procedurally barred. (Huff hearing, May 26, 1999 at 3). By the time undersigned was appointed by the registry on March 24, 2003 (PC-R. 70), the time for requesting the State Attorney file had long passed. Since Mr. Finney had already made requests for public records in 1997, he could not initiate a second request unless a warrant had been signed 6

12 and Mr. Finney was not under a death warrant. In addition, Mr. Finney did not fit the criteria for a second request under Fla. R. Crim. P (i). Under Fla. R. Crim. P (i), Mr. Finney made a timely request of the records repository seeking records, and was told it had no public records on Mr. Finney s case (PC-R. at 98). Without knowing what was in the State Attorney files, Mr. Finney was unable to establish the necessary criteria for an (i) request, which are that the additional public records are either relevant to the subject matter of the post-conviction proceeding or are reasonably calculated to lead to the discovery of admissible evidence. Fla. R. Crim. P (1)(C). Mr. Finney did not know what was in the files since Mr. Crooks had never obtained them. Undersigned counsel sought and received access to physically review the State Attorney files on June 11, 2003, under the scrutiny of Assistant State Attorney Sharon Vollrath, who stood over counsel as she reviewed the files. Mr. Finney complied with the rules of criminal procedure as best he could under the circumstances that Mr. Crooks placed him in. Mr. Crooks failed to ensure that all the records had been received. Under (i), Mr. Finney could not swear in an 7

13 affidavit that the State Attorney file appeared reasonably calculated to lead to the discovery of admissible evidence, when undersigned did not know what was in it. See, Fla. R. Crim. P (i). Likewise, Mr. Finney s time for compelling compliance with his initial request had long passed and the only other avenue to receive the file was through a death warrant, which Mr. Finney was not under. This was a case that fell through the cracks of Rule and renders Mr. Finney, as a death row inmate, in a worse position than he would have been as an ordinary citizen who has no such restrictions. Mr. Finney will not address the State s personal attacks against his counsel (Answer Brief at 13). Instead, Mr. Finney suggests that the State direct its criticism to Mr. Crooks, who failed to obtain the State Attorney file in this case during Chapter 119 litigation or discover the Brady material, or even, it appears, read the file. Additionally, it should be noted that the postconviction court found the State s procedural concerns unconvincing when it raised them below. The post-conviction court considered Mr. Finney s arguments on the merits and did not address any of the procedural problems alleged and outlined by the State in her response to the post-conviction 8

14 motion or in the Answer Brief. Because the post-conviction court did not find any procedural errors, Mr. Finney s issues are before this Court on the merits. The Brady/Giglio Claim The State described the undisclosed love letter written to Robert by Ms. Sutherland found in the State Attorney files as as meaningless. It argued that the letter would not have lead to any useful information, and provided no reasonable showing as to how this information could have been used for any beneficial purpose at trial (Answer Brief at 15). The State also argued that the State is not required to disclose all information regarding its investigatory work on a particular case, regardless of its relevancy or materiality. citing Wright v. State, 857 So. 2d 861, 870 (Fla. 2003); Carroll v. State, 815 So. 2d 601, 620 (Fla. 2002) (Answer Brief at 16). The State does not dispute that the love letter from Ms. Sutherland to Robert was not disclosed to trial counsel. Nor does it acknowledge the fact that a woman named Alice had been stealing from the victim and that information was kept from defense counsel. The State also does not argue that the handwritten comment that [Dr.] Diggs will go along with FDLE 9

15 was ever provided to the defense. Rather, the State argues that this information was investigatory and it had no obligation to turn over investigatory material to the defense, relying on Carroll and Wright for this proposition. But evidence that is material and exculpatory is Brady material. Brady requires the State to disclose material information within the State s possession that controls or tends to negate the guilt of the defendant. Guzman v. State, 868 So. 2d 498, 508 (Fla. 2003). This Court has required the disclosure of exculpatory evidence. See also, Mordenti v. State, 2004 Fla. LEXIS 2253 (December 16, 2004). In Hoffman v. State, 800 So. 2d 174 (Fla. 2001), the defense requested a report about head hair analysis that did not match the male victim. The State never disclosed the report and argued that the defense should have inquired about the report once told about the existence of other hair analyses. The State also argued that defense counsel elicited information at trial about the hairs and that testimony sufficiently notified the defense of the existence of this evidence. This Court held: This argument [that the defense should have figured out that exculpatory evidence existed] is flawed in light of Strickler and Kyles, which squarely place the burden on the State to disclose 10

16 Id. at to the defendant all information in its possession that is exculpatory. In failing to do so, the State committed a Brady violation when it did not disclose the results of the hair analysis pertaining to the defendant. However, in order to be entitled to relief based on this nondisclosure, Hoffman must demonstrate that the defense was prejudiced by the State s suppression of evidence. In Hoffman, the prosecution also argued that it had no obligation to turn over information to the defense about other suspects because it was investigative. This Court rejected that argument and said, There is a reasonable probability that the result of the trial would have been different had the jury heard that another suspect had confessed and the hair in the victim s hand did not belong to Hoffman. Id. at 181. Similarly, in Kyles v. Whitley, 514 U.S. 419, 445 (1995), undisclosed evidence suggested that a person named Beanie made undisclosed statements that showed that Beanie was anxious to see Kyles arrested for [the] murder, perhaps because he, Beanie, was the actual killer. In ordering a new trial, the Supreme Court held that it was not incumbent upon Kyles to establish that he would have called Beanie to the stand at the trial had he known of the undisclosed statements: Even if Kyles lawyer had followed the more conservative course of leaving Beanie off the stand, though, the defense could have examined the police to good effect of their knowledge of Beanie s 11

17 Kyles at 446. statements and so have attacked the reliability of the investigation in failing to consider Beanie s possible guilt and in tolerating (if not countenancing) serious possibilities that incriminating evidence had been planted. This Court has recognized that deciding whether undisclosed exculpatory evidence was material does not entail establishing what evidence would be presented at a retrial. In Mr. Finney s case, had the jury heard evidence that Ms. Sutherland was communicating with a lover named Robert, who she wrote lengthy love letters to three days before her murder and whom she tried to find a job, the result here would have been different. The State also argues that The suggestion of a possible love interest in the life of a single, adult woman living on her own does not take anything away from the incriminating evidence that resulted in Finney s conviction, or provide a reasonable basis to suspect another perpetrator. (Answer Brief at 18). But, that argument fails to consider the highly circumstantial evidence in the case or why the State withheld it. The only evidence linking Mr. Finney to the crime were two fingerprints in the victim s apartment. And, on the day of the crime, Mr. Finney pawned the victim VCR at a Tampa 12

18 pawnshop. Mr. Finney readily admitted that he knew Ms. Sutherland, the two had been neighbors and had lived in the same apartment complex, and he had been inside of her apartment to help her with maintenance work on many occasions. He freely admitted pawning the VCR that he said he found in the apartment complex dumpster and provided the pawn shop with his own name, current identification and a local address. He did not hide his identity (R. 280). He also pawned a television the day before, which was not related to any crime. In fact, he pawned items he found on a regular basis for money. Twenty-five fingerprints from Ms. Sutherland s apartment remained unidentified, and unidentified hairs found on Ms. Sutherland s breast did not match Mr. Finney (R ). The hairs were Caucasian and Mr. Finney is black. On the day of the murder, Ms. Sutherland was seen arguing with a large white male. The State s argument was that the large white man who argued with the victim was a red herring created by the defense (R. 446). Under these circumstances, the exculpatory information takes on greater significance because it could have exonerated Mr. Finney, but was withheld by the State. The withheld 13

19 information showed that Ms. Sutherland had been communicating with a lover named Robert. She wrote to Robert in the withheld letter that she missed his hugs and other things, too. She wrote that she spent time today dreaming of you, and then detailed how she spent her days. She told him she picked up a job application for him, and hoped that he did not mind. She also hoped that she did not disappoint him. She signed the 10-page-letter, Love, Sandy. The State withheld this letter. During trial, the prosecution repeatedly erected roadblocks each time Mr. Finney sought information about Ms. Sutherland s love interests or boyfriends. It was never revealed what kind of investigation was going on with regard to Robert. At trial, Mrs. Sutherland, the victim s mother, was asked by defense counsel on cross examination if her daughter was dating anyone. She replied, Not to my knowledge. She then added that if her daughter was dating someone, she would not necessarily know about it (R ). At trial, when the defense tried to suggest that the murder of Ms. Sutherland was sexual, passionate, and may have been the result of sexual bondage, the prosecution objected as 14

20 irrelevant and improper (R ), despite the fact that semen stains were found on her sheets (R. 627; 636); the toilet seat was in the up-right position in her bathroom (R. 417); and she was seen arguing with a large, white man the day before her murder (R ). In closing argument, the prosecution argued to the jury that it was unimportant whether Ms. Sutherland was dating anyone and that the defense was simply trying to lead you down a path of passion in a sexual context (R ). The prosecutor described defense counsel s tactics as a diversion. (R. 697). Yet, if the information was unimportant and diversionary, as argued by the prosecution at trial, why not turn over the information to the defense? Why withhold evidence from the defense the fact that Ms. Sutherland had written a 10-page love letter to Robert three days before her murder unless the exculpatory information was significant? The State s position is completely inconsistent. On one hand, the State argued it was investigatory, yet on the other hand, it argued it was unimportant and would not have changed the outcome. Despite the internal inconsistencies of the State s argument, the defense at trial was specifically told about 15

21 other suspects under investigation by the police. Detective Randy Bell of the Tampa Police Department testified that the police readily investigated other suspects (R. 417) and that William Kunkle was initially considered a suspect in the case. Detective Bell said, We talked to him [William Kunkle] in reference to it because a couple of witnesses observed him a certain location; so he was talked to (R. 579). He testified that Mr. Kunkle was eventually eliminated as a suspect (R. 627). The State offers no explanation why Mr. Kunkle s name was supplied to the defense as part of its investigation, but that the names of Robert or Alice Rabidue, a woman who had been stealing from the victim, were not. The handwritten notes in the State Attorney s file indicate that Ruth Sutherland knew about Alice, as did the prosecutors and Tampa Police Detective Bell, but she was never asked about her and defense counsel did not know to ask. It appears that the only ones who did not know about it was Mr. Finney and his lawyers. Mr. Finney maintains this information was exculpatory and material, and fit precisely into the defense theory of the case. While the State s theory of the case was that Mr. Finney killed the victim in the course of a robbery and stole her VCR (R ), the defense theory was the presence of 13 stab wounds on a victim are conducive to sex crimes or 16

22 passionate crimes and may have been the result of sexual bondage gone wrong. Initially, Mr. Finney was charged with sexual battery, but the charge was nolle prossed before jury selection began (PC-R ) because the State could not link Mr. Finney to the sexual battery. Dr. Diggs, the medical examiner, testified as a State witness at trial that he found the presence of acid phosphatase in the victim s rectal area, which he said was semen (R. 393)....the acid phosphatase indicates that you do have the presence of seminal fluid, which may indicate some sort of sexual contact (R. 394). Dr. Diggs found no sign of rectal trauma (R. 398). The wounds found on Ms. Sutherland resembled a frenzic - frenzic type passion (R. 397). He added: Multiple stab wounds, very often, when a person has been -- most forensic pathologists experience -- those of us who have worked in big city jurisdictions for a long period of time, to see a wide pattern of stab wounds, multiple stab wounds such as in this case taking place as a result of a passion type of overkill-type frenzy that you have. Usually when a person has been robbed, very often you will only see maybe about one or two stab wounds. Just enough to incapacitate the person. (R ). Dr. Diggs was called again during the defense case, but before his testimony, the prosecution sought a proffer (R. 17

23 456). In the proffer, Dr. Diggs testified that the victim was probably lying on the bed face down when the stab wounds were inflicted (R. 464). He noted that she was bound and gagged, and found no signs of a struggle. He found no defensive type wounds, nor was she beaten (R ). The judge allowed Dr. Diggs to testify as to the positioning of the body, but not about the S and M (R. 479). The defense sought to have Dr. Diggs testify that what he saw was consistent with a bondage murder (R. 480). The State objected (R. 480). Dr. Diggs said the scene was consistent with bondage, but also consistent with a person who was frightened and submitted to the bondage (R ). The court s ultimate ruling was that Dr. Diggs could testify that Ms. Sutherland had no defensive wounds but nothing about S and M bondage (R. 489). Dr. Diggs eventually testified to the watered-down version of his expert opinion that Ms. Sutherland was killed lying face down with a gag in her mouth. Her hands were tied behind her back and at least one ankle had a ligature around it. She had no defensive wounds (R. 492). This information that Ms. Sutherland had a boyfriend named Robert who she wrote a lengthy love letter to three days before her murder confirmed the defense theory of the case and 18

24 corroborated Dr. Diggs theory. This information was exculpatory and should have been turned over. Without this information, trial counsel was seriously handicapped in his representation of Mr. Finney. Rogers v. State, 782 So. 2d 373, 385 (Fla. 2001). Trial counsel was limited in its ability to impeach the thoroughness and good faith of the State s investigation of this case. Kyles v. Whitley, 514 U.S. at 446. It also shows that the State deliberately deceived the jury into believing that Ms. Sutherland had no boyfriend or romantic interest in her life. See Giglio v. United States, 405 U.S. 150 (1972). Cf. Gray v. Netherland, 518 U.S. 152, 165 (1996) quoting Mooney v. Holohan, 294 U.S. 103, 112 (1935)(due process forbade the prosecution to engage in a deliberate deception of court and jury ). The State also asserts that Mr. Finney s Giglio argument was not presented below to the post-conviction court, but then in the same page noted in footnote 9 that Finney s motion cited to Giglio. (Answer Brief at 18). In his Motion for Post-Conviction Relief, Mr. Finney s first claim heading was that Mr. Finney was deprived of his rights to due process under the fourteenth amendment as well as his rights under the Fifth, Sixth and Eighth Amendments 19

25 because either the State failed to disclose evidence that was material and exculpatory in nature and/or presented misleading evidence and/or defense counsel failed to discover and present exculpatory evidence. Mr. Finney cited to both Brady and Giglio cases in his claim (PC-R. at 88). Mr. Finney s arguments were properly presented and preserved below. 1 The State argues that Mr. Finney has not established a Giglio violation because he has failed to identify any false or misleading testimony at trial (Answer Brief at 19). The State emphasizes that because there was no false testimony there was no Giglio violation. The State position is shortsighted and wrong. In Gray v. Netherland, 518 U.S. 152, 165 (1996), the Supreme Court found deliberate deception of defense counsel qualified as a due process violation under Giglio and its line of cases. In Routly v. State, 590 So. 2d 397, 400 (Fla. 1991), this Court held that under Giglio and Bagley, the prosecutor has a duty to correct testimony he or she knows is false when a witness conceals bias against the defendant through false testimony. This Court also said: The thrust of Giglio and its progeny has been to 1 In Banks v. Dretke, 124 S.Ct. 1256, 1271 n. 11 (2004), the court left unanswered the question of whether a Giglio claim must be separately pleaded to warrant adjudication. 20

26 ensure that the jury knows the facts that might motivate a witness in giving testimony, and that the prosecutor not fraudulently conceal such facts from the jury. (quoting Smith v. Kemp, 715 F. 2d 1459,1467 (11 th Cir.)(emphasis added). 2 In Craig v. State, 685 So. 2d 1224 (Fla. 1996), this Court held that depriving the jury of critical information about a co-defendant s disparate sentence and the prosecutor s subsequent argument to the jury about his prison status presented a false and misleading picture to the jury. This Court found that the prosecutor knew the testimony and argument were misleading, and that the misleading statements were material to the outcome in the case as they affected the jury s view of a witness credibility and sentencing disparity. As a result of the prosecutor s misleading the jury, this Court vacated Mr. Craig s death sentence and remanded for a new trial. This Court held:...we find that the State deprived the jury of critical information regarding codefendant s Schmidt s disparate sentence in violation of Giglio and Routly. First, the testimony elicited from Schmidt and the prosecutor s subsequent argument to the jury about Schmidt s prison 2 United States v. Ruiz, 711 F. Supp. 145 (S.D.N.Y. 1989) held that if a conviction was obtained through the use of false or misleading evidence, which was known by the government, the conviction cannot stand. aff d 894 F. 2d 501 (2 nd Cir. 1990). 21

27 status presented a false and misleading picture to the jury -- the co-perpetrator-witness was actually in a work release program with a presumptive parole release date in the near future. Second, the prosecutor conceded that he knew Schmidt was on work release prior to eliciting testimony from him and prior to his argument to the jury. Thus, the prosecutor knew the testimony and argument were misleading. Finally, the misleading statements were material to the outcome in his case as they affected the jury s view of Schmidt s credibility and the true disparity of sentencing between these defendants. Because the jury was unaware of the true sentencing disparity between Craig and his codefendant, it was prevented from properly evaluating the codefendant s credibility and weighing the mitigating circumstances in this case. That is, because the prosecutor failed to disclose that Schmidt was already on work release and selling carpets to the public at the time he testified against Craig at sentencing, the jury considered a sentencing disparity between Craig and a codefendant who was serving two consecutive life sentences with, at best, a bleak possibility of parole. In fact, the jury should have considered a sentencing disparity between Craig and a codefendant who was, at that very instant, already out on work release and preparing for re-entry into society. Id. at This Court also found that the prosecutor in Craig violated other established rules of conduct, which apply in the prosecution of criminal cases, and especially in capital cases. The resolution of such cases is not a game where the prosecution can declare, It s for me to know and for you to find out. Id. at This Court emphasized the job of a prosecutor in a 22

28 criminal prosecution...is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor indeed he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful [result] as it is to use every legitimate means to bring about a just one. Berger v. United States, 295 U.S. 78 (1935) cited in Craig. This Court also cited the Oath of Admission to the Florida Bar that states that an attorney will never seek to mislead the judge or jury by any artifice or false statement of fact or law. Rules of the Supreme Court, 145 Fla. 763, 797 (Fla. 1941). The prosecution misled the jury in Mr. Finney s case, criticizing the defense for arguing diversionary tactics when it knew those facts to be true. But the prosecution also misled the defense about Robert s existence. Ms. Sutherland did have a boyfriend or at least a romantic interest. This romantic interest corroborated Dr. Diggs opinion that the killing was a crime of passion and it also supported the defense theory that the man arguing with the victim on the day of the crime was significant and favorable. See, Banks v. Dretke, 124 S.Ct (2004). The prosecution s actions fostered the belief that the 23

29 victim had no boyfriends and deliberately misled the jury. These actions were improper and the withholding of information from Mr. Finney s defense counsel undermined confidence in the outcome of his trial and sentencing. The files and records in this case do not conclusively rebut these claims. Mr. Finney was entitled to an evidentiary hearing on this argument. 24

30 ARGUMENT II THE POST-CONVICTION COURT ERRED IN SUMMARILY DENYING MR. FINNEY S CLAIM THAT HIS COUNSEL FAILED TO DISCLOSE A CONFLICT OF INTEREST, WHICH RESULTED IN IRREPARABLE HARM TO HIS CASE. MR. FINNEY S RIGHTS TO DUE PROCESS AND A FAIR TRIAL UNDER THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS WERE VIOLATED. On May 31, 1990, Jack Crooks, under oath, accepted a special appointment as an Assistant State Attorney in Hillsborough County to well and faithfully perform the duties of an Assistant to the State Attorney for the Thirteenth Judicial Circuit (PC-R. at 112). Thirteen months later, that position was revoked (PC-R. at ). Mr. Finney was indicted on charges of murder, robbery, sexual battery and trafficking in stolen property on February 13, 1991, by the Thirteenth Judicial Circuit, during the same time that Mr. Crooks was faithfully performing the duties of an Assistant State Attorney for the Thirteenth Judicial Circuit. At no time was Mr. Finney notified that his collateral counsel had worked at the same office that had indicted and prosecuted him for murder and rape. At no time was Mr. Finney made aware that his collateral counsel had been a prosecutor in the same office that sought to prosecute him and obtain a death sentence against him. And, at no time was Mr. Finney 25

31 notified whether his collateral counsel had any involvement in his case as it made its way through the prosecutor s office. In Bogle v. State, 655 So. 2d 1103 (Fla. 1995), this Court held that an appearance of impropriety created by certain situations may demand disqualification of counsel, but each situation should be evaluated on a case-by-case basis. That did not occur in Mr. Finney s case. No evidentiary hearing was held to determine the extent of Mr. Crooks involvement in the State Attorney s office. The State argues that Mr. Crooks special appointment ended in June, 1991, well over a year prior to Finney s September 1992 trial and that he was involved in only three cases, none of which related to Finney or his prosecution (Answer Brief at 25). Without an evidentiary hearing, it is impossible to know the extent of Mr. Crooks involvement in the State Attorney s office. Mr. Crooks was not given an opportunity to testify as to what he did for the State Attorney s office in 1990 and 1991, why he never told Mr. Finney of his conflict of interest or why he failed to obtain and review the State Attorney files and the Tampa Police Department files. Without an evidentiary hearing, the State s assertions and explanations are 26

32 irrelevant. No testimony was taken on any of the issues addressed here, as the post-conviction court summarily denied Mr. Finney an evidentiary hearing on his claims. Mr. Finney alleged that the conflict of interest resulted in Mr. Crooks waiving his client s Chapter 119 rights to public records and filing a conclusory motion with no factual support. This failure to obtain a copy of Hillsborough County State Attorney file that contained exculpatory Brady/Giglio information, and the failure to obtain the Tampa Police Department file, showed his lack of advocacy on behalf of Mr. Finney to obtain information from his former employer and other state agencies. This conflict of interest explains Mr. Crooks failure to investigate the case and is the type of abysmal representation that gained his cases the name, Jack Crooks specials. In its Answer Brief, the State argues that Mr. Finney offers no explanation as why this {Brady/Giglio} claim was not presented previously (Answer Brief at 14). But it completely ignores Argument II of Mr. Finney s Initial Brief, in which he argued that the conflict of interest resulted in Mr. Crooks not disclosing his prior employment with the State Attorney s office at the same time Mr. Finney s case was being prosecuted, not obtaining and reviewing a copy of Mr. Finney s 27

33 public records, not finding the exculpatory Brady/Giglio material, and abandoning his job as advocate by filing a legally insufficient post-conviction motion. This performance by Mr. Crooks is cause for failing to bring these issues to the court s attention earlier. The prejudice is that Mr. Finney had no adversarial testing of the issues in his case, and was deprived of the same due process rights afforded every other death row inmate. Because there are facts in dispute that cannot be refuted by the record, Mr. Finney is entitled to an evidentiary hearing on his claims. Without an evidentiary hearing, the trial court should have taken these allegations as true, but failed to do so. Fla. R. Crim. P ; Lemon v. State, 498 So. 2d 923 (Fla. 1986). This case should be remanded for an evidentiary hearing on these claims and the State should be compelled to turn over its file to Mr. Finney, as he requested in ARGUMENT III THE POST-CONVICTION COURT ERRED IN FAILING TO DISQUALIFY HIMSELF FROM THE PROCEEDINGS WHEN MR. FINNEY HAD A REASONABLE FEAR THAT HE COULD NOT RECEIVE A FAIR HEARING BEFORE JUDGE THARPE. Mr. Finney relies on the arguments set forth in his 28

34 Initial Brief on this claim. CONCLUSION Mr. Finney submits that relief is warranted in the form of an evidentiary hearing. The State withheld exculpatory and impeaching Brady/Giglio material, his postconviction counsel had a conflict of interest that was never disclosed and that resulted in him waiving Mr. Finney s claims, Mr. Finney is entitled to an evidentiary hearing. Mr. Finney is entitled to an evidentiary hearing on his claims before an impartial and neutral judge. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing Reply Brief has been furnished by United States Mail, first-class postage prepaid to Carol Dittmar, Office of the Attorney General, 3507 E. Frontage Road, Suite 200, Tampa, FL on this 20 th day of December, PAMELA H. IZAKOWITZ Florida Bar Number P.O. Box S. Westland Avenue Tampa, FL

35 Registry Attorney for Mr. Finney 30

36 CERTIFICATE OF COMPLIANCE I HEREBY CERTIFY that the Reply Brief satisfies the Fla. R. App. P (1) and 9.210(a)(2). PAMELA H. IZAKOWITZ Florida Bar Number P.O. Box S. Westland Avenue Tampa, FL Registry Attorney for Mr. Finney 31