Wednesday, 26 November 2008

Justice Anstead, Florida Supreme Court, dissent in Wayne Tompkins

For the reasons discussed above, we affirm the trial court‘s summary denial of Tompkins‘s fourth and fifth successive motions for postconviction relief and we - 39 -

also deny his petition for all writs jurisdiction, or alternatively for writ of habeas corpus, or both.20 It is so ordered. WELLS, PARIENTE, LEWIS, and POLSTON, JJ., concur.

ANSTEAD, J., concurs in part and dissents in part with an opinion. QUINCE, C.J., and CANADY, J., recused. NO MOTION FOR REHEARING WILL BE ALLOWED.

ANSTEAD, J., concurring in part and dissenting in part.

I cannot agree with the majority‘s summary rejection of the defendant‘s unrefuted claim that the State unlawfully manufactured critical evidence against him. It is apparent on the face of the claim that its proper resolution requires evidentiary development before a trier of fact who, among other things, can make credibility determinations.

20. We summarily deny Tompkins‘s petition without further discussion because each of the five claims are identical to the issues raised in the appeals of the orders currently before us in this opinion. The petition raised the following five claims: (1) the Governor‘s failure to comply with section 922.06(2) concerning the rescheduling of his execution; (2) Tompkins‘s prolonged time on death row; (3) ineffective assistance of collateral counsel for failing to obtain a legible copy of the March 24, 1985, police report; (4) actual innocence; and (5) Florida‘s lethal injection procedure constitutes cruel and unusual punishment under the Eighth Amendment. - 40 -

In Craig v. State, 685 So. 2d 1224 (Fla. 1997), we reversed a death sentence and explained just how serious a Giglio claim asserting prosecutorial misconduct should be treated:

To establish a Giglio violation, Craig must show: (1) that the testimony was false; (2) that the prosecutor knew the testimony was false; and (3) that the statement was material. Id. If there is a reasonable possibility that the false evidence may have affected the judgment of the jury, a new trial is required. Giglio, 405 U.S. at 154, 92 S. Ct. at 765; Routly, 590 So. 2d at 400. We noted in Routly 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 that false testimony.‖ 590 So. 2d at 400; see also United States v. Meros, 866 F.2d 1304, 1309 (11th Cir.), cert. denied, 493 U.S. 932, 110 S. Ct. 322, 107 L. Ed. 2d 312 (1989). We further stated, ―The thrust of Giglio and its progeny has been to ensure that the jury know the facts that might motivate a witness in giving testimony, and that the prosecutor not fraudulently conceal such facts from the jury.‖ Id. (quoting Smith v. Kemp, 715 F.2d 1459, 1467 (11th Cir.), cert. denied, 464 U.S. 1003, 104 S. Ct. 510, 78 L. Ed. 2d 699 (1983)); accord Alderman v. Zant, 22 F.3d 1541, 1554 (11th Cir. 1994). [N.4]

[N.4] See also Dupart v. United States, 541 F.2d 1148 (5th Cir. 1976), wherein the Fifth Circuit analyzed the testimony of a government witness in light of the Giglio standard and further noted that ―assuming the allegations to be true, such a formalistic exchange of testimony even though technically not prejurious, would surely be highly misleading to the jury, a body generally untrained in such artful distinctions.‖ Id. Accord United States v. Ruiz, 711 F. Supp. 145 (S.D.N.Y. 1989) (restating the Giglio rule that ―if conviction was obtained through the use of false or misleading evidence which was known to be so by the government, the conviction cannot stand.‖), aff‘d, 894 F.2d 501 (2d Cir. 1990). - 41 -

Id. at 1226-27. Because of the important and unique significance of a claim of prosecutorial misconduct, the United States Supreme Court held in Giglio that only a ―reasonable possibility‖ of an effect on the jury need be demonstrated to merit relief. See Ruiz, 711 F. Supp. at 147 (―[I]f the conviction was obtained through the use of false or misleading evidence which was known to be so by the government, the conviction cannot stand.‖).

Initially, we should consider the seriousness of the flagrant misconduct that has been disclosed by the State to the defendant and that forms the basis of the constitutional claim. No one disputes that the most critical evidence of defendant‘s guilt was presented by a witness commonly referred to as a ―jailhouse snitch.‖ Of course, the credibility of such a witness is questionable at best, although the State has to take the evidence as it finds it. However, we now find out from the State itself that this crucial witness‘s evidence was unlawfully tampered with by the State‘s prosecutor. The record reflects that the prosecutor believed that it would be very important to the State‘s case for the defendant to have told the jailhouse snitch that he buried the victim‘s purse with the victim. The snitch did not remember being told this by the defendant, but upon urging by the prosecutor added this important, but false, evidence to his testimony. But now, if we are to accept the State‘s most recent interview with this crucial witness, the snitch‘s evidence about the purse was a fabrication, a lie supplied by the State‘s prosecutor. Indeed, if the - 42 -

claim is true we have a state prosecutor who committed a criminal act in tampering with a witness. The majority, instead of allowing a trial judge, as a trier of fact, to receive and consider this evidence of the prosecutor‘s misconduct as well as evaluating whether the snitch may have lied about other matters, simply concludes that the snitch‘s credibility remains intact about his other testimony and, hence, that inculpatory evidence has not been affected. The majority just surgically removes this false evidence from the case against the defendant and then concludes that enough evidence still remains to convict. In my view, however, that is not the standard for analysis that our case law requires when a Giglio violation is asserted, and, especially when such a claim is not only unrefuted, but is, in fact, disclosed by the State.

Imagine here a jury already concerned with the credibility of a jailhouse snitch now being told that a critical part of his testimony was fabricated by the State‘s prosecutor. Surely, common sense would tell us this is the kind of ―bombshell‖ disclosure that could change the jury‘s entire evaluation of the case. In the face of such a disclosure a jury would not only reevaluate the evidence of the snitch, it would naturally give extra scrutiny to a case presented by a prosecutor who has fabricated evidence and tampered with a witness. Surely, at the very least, - 43 -

there is a reasonable possibility this dramatic disclosure would affect the jury‘s evaluation of the State‘s case. For all these reasons, I cannot join in the majority‘s summary rejection of this claim of prosecutorial misconduct, especially under the circumstances of this case where the defendant is under a pending warrant of execution.

Three Cases: Two Appeals from the Circuit Court in and for Hillsborough County, Daniel Howard Sleet, Judge - Case No. 84-CF-010538 And an Original Proceeding – All Writs Neal Dupree, Capital Collateral Regional Counsel, Fort Lauderdale, Florida, and Martin J. McClain, Special Assistant CCR Counsel, Southern Region, Wilton Manors, Florida, for Appellant/Appellant/Petitioner Bill McCollum, Attorney General, Tallahassee, Florida, and Scott A. Browne, Assistant Attorney General, Tampa, Florida, for Appellee/Appellee/Respondent

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