All writs petition filed in Florida Supreme Court in the innocence case of Wayne Tompkins

 http://www.waynetompkins.us/legal/Filed_11-20-2008_Tomkins_Petition.pdf

IN THE SUPREME COURT OF FLORIDA WAYNE TOMPKINS, Petitioner, v. CASE NO. SC08-___ BILL McCOLLUM, Attorney General of the State of Florida, and, WALTER A. McNEIL, Secretary, Department of Corrections, State of Florida, Respondents. ____________________________________/ PETITION SEEKING TO INVOKE THIS COURT'S ALL WRITS JURISDICTION AND/OR PETITION FOR WRIT OF HABEAS CORPUS I. JURISDICTION

Article V, Section 3(b)(1) and (7) of the Florida Constitution gives this Court exclusive appellate jurisdiction over all capital cases and the ability to issue "all writs necessary to the complete exercise of its jurisdiction." This Court's "all writs" jurisdiction may be invoked in capital cases when warranted by 2

circumstances. Lightbourne v. McCollum, 969 So. 2d 326 (Fla. 2007); Jones v. Butterworth, 701 So. 2d 76 (Fla. 1997); Johnston v. Singletary, 640 So. 2d 1102 (Fla. 1994). The circumstances presented herein warrant invocation of the "all writs" jurisdiction. This Court has consistently maintained an especially vigilant control over capital cases, exercising a special scope of review. Elledge v. State, 346 So. 2d 998, 1002 (Fla. 1977); Wilson v. Wainwright, 474 So. 2d 1162, 1165 (Fla. 1985). This Court has not hesitated in exercising its inherent jurisdiction to review issues arising in the course of capital post-conviction proceedings. State v. Lewis, 656 So. 2d 1248 (Fla. 1995). This petition presents a substantial question concerning the constitutionality of this Court‟s administration of capital punishment in this State and whether this Court‟s action in Mr. Tompkins‟ case comports with the United States and Florida Constitutions. The issue is therefore of the type classically considered by this Court pursuant to its "all writs" jurisdiction. This Court has the inherent power to exercise its jurisdiction. The reasons set forth herein demonstrate that the Court's exercise of its "all writs" jurisdiction, and of its authority to interpret and apply the "cruel or unusual" provision of the Florida Constitution, is warranted in this action.

Moreover, this Court has jurisdiction to entertain a petition for a writ of 3

habeas corpus, an original proceeding governed by Fla. R. App. P. 9.100. This Court has original jurisdiction under Fla. R. App. P. 9.030(a)(3) and Article V, § 3(b)(9), Fla. Const. The Constitution of the State of Florida guarantees that "[t]he writ of habeas corpus shall be grantable of right, freely and without cost." Art. I, § 13, Fla. Const.

In its jurisdiction to issue all writs, including writs of habeas corpus, this Court has an obligation to protect Petitioner's right under the Florida Constitution to be free from cruel or unusual punishment and it has the power to enter orders assuring that such protection is forthcoming. Allen v. State, 636 So. 2d 494, 497 (Fla. 1994) (holding that the Court was required under Article I, § 17 of the Florida Constitution to strike down the death penalty for persons under sixteen at the time of crime); Shue v. State, 397 So. 2d 910 (Fla. 1981) (holding that this Court was required under Article I, § 17 of the Florida Constitution to invalidate the death penalty for rape); Makemson v. Martin County, 491 So. 2d 1109 (1986) (noting that "[t]he courts have authority to do things that are essential to the performance of their judicial functions. The unconstitutionality of a statute may not be overlooked or excused"). This Court has explained: "It is axiomatic that the courts must be independent and must not be subject to the whim of either the executive or legislative departments. The security of human rights and the safety of free 4

institutions require freedom of action on the part of the court." Rose v. Palm Beach City, 361 So. 2d 135, 137 n.7 (1978). Additionally, this Court is required to protect Mr. Tompkins‟ Eighth and Fourteenth Amendment rights under the federal Constitution. Contemporary Eighth Amendment jurisprudence upholds the authority of the courts to review a state legislature's decision generally, and specifically to review a legislature's enactments regarding criminal punishment. Rummell v. Estelle, 455 U.S. 288, 304 (1980); Coker v. Georgia, 433 U.S. 591, 602 (1977). See also Ralph v. Warden, Maryland Penitentiary, 438 F.2d 786 (4th Cir.), cert. denied, 408 U.S. 942 (1972). The fact that a state statute authorizes capital punishment does not conclusively establish the punishment's constitutionality because the Eighth Amendment is a limitation on both legislative and judicial action. Robinson v. California, 370 U.S. 660 (1962). Where constitutional rights - whether state or federal - of individuals are concerned, this Court may not abdicate its responsibility in deference to the legislative or executive branches of government. Instead, this Court is required to exercise its independent power of judicial review. Ford v. Wainwright, 477 U.S. 399 (1986). 5

II. STATEMENT OF THE CASE AND FACTS Factual Background On March 23, 1983, Lisa DeCarr and Kathy Stevens were expelled from school after they were discovered outside smoking under a tree. Lisa and Kathy were in special classes for emotionally troubled students. Pot was found in Kathy‟s purse. Lisa was told that she could not return to school until she was accompanied by a parent.

On the afternoon of the next day, March 24, 1983, Lisa‟s mother contacted the police and filed a missing persons report. That police report is a two-page report dated March 24, 1983, at 5:30 PM.1 The first page lists the complainant, the date and the time of the incident being reported. The "Date Time Occurred" showed "24 Mar 83 1330-1400". The report listed Barbara DeCarr as the complainant/parent. On the first page of the report in the reconstruction section was handwritten, "Mrs. DeCarr stated her daughter ran away from home for no apparent reason." The second page of the report listed Wendy Chancey as a

1 It is clear from the police report that Mrs. DeCarr reported Lisa missing within a couple of hours after she was last seen getting into a car. It is also clear from the police report that Mrs. DeCarr was aware of "some trouble in school." 6

witness. The report then contained the following in the narrative section: Compl. stated she last saw Lisa at the listed residence at the listed time. Compl. stated that everything was fine at home and has had no trouble with Lisa running away or anything. Compl. stated that Lisa was having some trouble in school but nothing to cause her to runaway. Compl. checked was Lisa‟s friends and school for information as to where she might be with negative results. Compl. stated that one of Lisa‟s friends told her that Lisa asked about Beach Place, but Compl. checked with Beach Place with negative results. Compl. stated Lisa did not take any of her belongings and gave no indication of wanting to leave.

The report showed the "listed time" as 1:30-2:00 on March 24, 1983. The "listed residence" was shown as 1225 E. Osborne St. According to the report, Mrs. DeCarr last saw her daughter, Lisa, at 1:30-2:00 PM on March 24, 1983.2 The report further indicated that a witness, Wendy Chancey, stated "she observed Lisa get into the suspect vehicle at 12th St. And Osborne and was last seen heading north on 12th St." The two-page police report indicated that Lisa was wearing "blue jeans, maroon shirt, diamond ring, cross earrings." Implicit in the report was the fact that this was the attire Lisa was wearing at the time she was last seen by the complainant, Barbara DeCarr, when she last saw Lisa at 1:30-2:00 PM.

2 Since Mrs. DeCarr was making representations to the police while filing a missing persons report, presumably she subjected herself to prosecution if the police report was false. Kist v. State, 787 So. 2d 106 (Fla. 2nd DCA 2001).

For over a year after this police report was dated, Mrs. DeCarr maintained 7

that Lisa had runaway. This was documented by numerous police reports.3 Det. Gullo logged calls from Mrs. DeCarr reporting that others claim to have sighted Lisa. However, she did not provide a name for any of the individuals she said had told her they had seen Lisa after her disappearance. For example, the September 2, 1983, entry stated: I received a phone call from Mrs. DeCarr who stated that she was told by friends of Lisa that they had seen Lisa on East 7th Ave. at about 46th St. Lisa was standing in the Jewel "T" parking lot speaking with two or three other w/f‟s. The informants told Mrs. DeCarr that Lisa might be living in a trailer park which is across the street. Mrs. DeCarr told the informants that they should call the police the next time they see her. Mrs. DeCarr was advised that they didn‟t want to get involved with the police.

3 School records reveal that there was a March 24th phone conference with Barbara DeCarr "who called to inform that Lisa had left." This was the day after Lisa had been expelled and told that she could not return unless accompanied by a parent. The records also show that on March 25th, "mom says child ran away yesterday (24th). Thinks child may be pregnant." Similarly, records from the Missing Child organization indicated that Barbara contacted the organization on March 29, 1983, and reported Lisa as missing, saying, "She may be on drugs and she may be pregnant." Barbara DeCarr did not mention to Det. Gullo, the policeman looking for Lisa, Lisa‟s possible pregnancy until April 26th.

The only name Mrs. DeCarr supplied Det. Gullo was when she indicated Kathy Stevens had reported that Lisa had called from New York. Yet when providing that information, Mrs. DeCarr misreported Kathy‟s last name. She said Kathy‟s last name was Sample. As a result, Det. Gullo did not locate Kathy. 8

When she testified at trial, Mrs. DeCarr denied practicing witchcraft: "I am a Catholic." (R. 234). In her deposition, Barbara said her daughter would be lying if she had said that Barbara had engaged in sex acts with "little boys" (DeCarr depo. at 65). At trial, Judge Coe refused to allow Mrs. DeCarr to be asked about her sexual relationships with 12 and 13 year old boys (R. 235).4

4 Detective Burke‟s report dated June 22, 1984, noted that "Jenice DeCarr who is, the stepdaughter of Barbara DeCarr" stated, "that Barbara DeCarr was heavily into Witchcraft and while living in New York, Barbara participated in witchcraft to a great extent." Jenice also reported "that her brother Harold DeCarr, Jr. was seduced by Barbara when he was 12 yrs. old." Det. Burke noted that "this was confirmed by Harold as we were on a three party telephone conversation at the time. He stated that he was in fact, 12 yrs old when this took place." Det. Burke reported that Michelle Hayes, "the sister to Lisa DeCarr and the daughter of Mrs. DeCarr," made similar statements. Michelle "stated she knew of one time that her mother had at least three or four young boys in her bedroom locked up with her ranging from ages 12 to 14 yrs and that she knew that there was sex acts going on and that one of the subjs that was in the bedroom with her mother was Harold, Jr., her stepbrother. She stated that she is certain that they were involved in some type of sex act with their mother. She said it got so bad, that the 12 and 14 yrs old boys would get in a fight over who was to have her mother‟s affections."

5 In the period between March, 1982, to June, 1984, Mrs. DeCarr had three other boyfriends in addition to Wayne Tompkins (R. 227). As to one, Gary Francis, she denied that she moved out of the trailer park because Gary had harmed Lisa (Id.). But Mrs. DeCarr did acknowledge that a man named Bob McElvin had

In May of 1984 while she was voluntarily committed in a mental hospital, Mrs. DeCarr contacted a psychic.5 Donald Snell testified at trial that he met Mrs. 9

propositioned Lisa, saying he would do "certain things for her for sexual favors" (Id.). Mrs. DeCarr found out in 1984 that Mr. Tompkins had gone to bed with another woman. However, in her testimony, she denied that she was angry over Mr. Tompkins‟ affair with another woman (R. 237). 6 Mrs. DeCarr and her family moved from that residence over a year before, weeks after Lisa disappeared.

7 Tampa Police Department Sergeant Rademaker testified that Mrs. DeCarr told him that she believed the body "was someplace on the property and possibly under the house" (R. 170); even though this interview was conducted after the discovery of the body, "we didn‟t tell her during the interview. We didn‟t tell her until after we were sure what we had" (Id.).

DeCarr in May, 1984 (R. 123-24). Snell headed a volunteer group that located missing children, and employed the services of a psychic to do so (R. 124). A second meeting occurred in early June of 1984, when Mrs. DeCarr assigned him power of attorney to search for Lisa (R. 129). On or around June 6, 1984, Snell‟s organization conducted a search of Barbara‟s former house (R. 130-31).6 Snell recounted that "the house was raised in the front part" and when they looked under it, "we could see a depression which we were sure was a grave." When someone reached under the house, "the earth gave way" and we "saw the bones" (R. 132). The depression was "on the right hand side under the front part, the front section, what was the porch" and was about "two to three feet under the house" (R. 133; 135). The police were then contacted (R. 135).7 Snell said that it was not difficult 10

The medical examiner identified the body as being Lisa based upon information received from Barbara DeCarr. The trial prosecutor testified in 1989 that "[o]ther than Mrs. DeCarr‟s description of the strange tooth in her daughter‟s mouth" there was no basis for the dental identification (PC-R. 233). There was no way to determine how long the body had been in the grave, and that it is possible it could have been as little as six or seven months prior to June, 1984 (R. 191).

8 Benito first called Kathy Stevens on March 7, 1985. This was two days after Barbara DeCarr‟s March 5th deposition in which she indicated she went to Mr. Tompkins‟ mother‟s house at "approximately 9:00 am." (DeCarr depo. at 16). In her undated statement, she further indicated that Mr. Tompkins had already arrived at his mother‟s house and "stayed at his mother‟s house until approximately 10:00

to go under the house to see where the depression was located, and that there were houses on both sides of the DeCarr house, and people from those houses could see what they were doing (R. 138-39). Snell did not know if Barbara knew where the body was before he went there, but "just didn't believe that she was telling me the whole truth" (R. 138; 40).

After the body was found, Mrs. DeCarr told the police that Wayne Tompkins, her ex-boyfriend, was the last person to see Lisa alive on the morning of March 24, 1983, the day she disappeared. Based upon Mrs. DeCarr‟s claims and the discovery of the body, Mr. Tompkins was indicted. In early 1985, Mrs. DeCarr was deposed by Mr. Tompkins‟ counsel. Immediately afterwards, the prosecutor started looking for more evidence or another witness. He contacted Kathy Stevens in March of 1985.8 At first she maintained that her statements to 11

am when he left to get some newspapers to pack dishes with." In her deposition, she indicated Mr. Tompkins "could have been" gone "[t]wenty minutes, half an hour." (DeCarr depo. at 20). He subsequently left again with his stepfather (DeCarr depo. at 21). 9 Kathy‟s new version of the facts included her sneaking into Lisa‟s bedroom window at 6:30 AM on March 24th because she and Lisa were planning to run away after getting in trouble at school. In the early morning meeting, Kathy said that Lisa announced she was not running away after all. So Kathy left. Later, she realized that she left her purse and had to go back to get it. When she got there at around 8:30 AM, the front door was open. She went in and saw Mr. Tompkins strangling Lisa. Lisa called out for her to call the police. But instead, she went the nearby store and ran into Lisa‟s boyfriend, Junior Davis. When she told him what she had just witnessed, he seemed unconcerned. So, Kathy put the incident behind her and went to school. In her trial testimony, Kathy said that she went back later to get her purse with her girlfriend, Kim Lisenby. It was then Kim who knocked at the door, not Kathy, and may have spoken with Mr. Tompkins. Kathy indicated that this conversation was between Kim and Tompkins while she "was at the corner waiting." She stated, "I did not hear it" (Stevens depo. at 14)

In her deposition, Kathy gave a different version. Then she said that Kim Lisenby was with her when she saw Lisa being strangled. After Lisa told her to call the police, she "grabbed [her] purse and [ ] left." (Stevens depo. at 10) "I shut the door. And I told Kim, I said, „Come on, Kim we got to call the police.‟ She

school officials were true, that Lisa had runaway to New York and kept in touch with Kathy. Kathy said that after laying awake and talking to her pillow, she called the prosecutor. After she was given authorization to visit a boyfriend who was incarcerated, she changed her story and claimed that she witnessed Lisa being strangled by Mr. Tompkins on the morning of March 24, 1983, at around 8:30 AM.9 12

said, „Don‟t get involved.‟ And I said, „Why?‟ And she said, „Because you don‟t need to.‟ And I said, „Okay.‟ And I went to the store and that‟s when I ran into Junior." In her deposition, Kathy indicated that she "grabbed her purse" when she left at 8:00 am. (Stevens depo at 10). She also indicated that after she talked to Junior, "me and [Kim] went back to the school. I cleaned out my locker, and I went to my stepmother‟s and sat on her porch until she got back. And then I met Kim at school at 2:00 o‟clock. And she cut class. And we went to go check on Lisa" (Stevens depo. at 14). "It takes about twenty minutes to get from the school to her house. It was about 2:20, 2:30, something like that" 10 Kathy Stevens‟ deposition occurred on June 12, 1985. Kenneth Turco‟s deposition occurred on July 15, 1985. At that time, he said that in late June, 1985, he first talked to Wayne Tompkins about his case and that about a week and a half before the deposition, Mr. Tompkins confessed to him (Turco depo. at 8).

11 Kenneth Turco was serving a 30 year prison sentence for burglary and grand theft (R. 301-02). Turco also had been previously convicted of grand theft, forgery, and burglary (R. 302). Turco acknowledged that he was a confidential informant in prison, that he had been one for the last 4 or 5 years, and that he was "trustworthy" (R. 317). After Mr. Turco entered a guilty plea to a felony escape charge in "June, I think, or maybe the end of May" (R. 315), he was placed in a two man cell with Mr. Tompkins. His placement in jail cell with Mr. Tompkins occurred in June of 1985. He had just entered the guilty plea on an escape charge (R. 303). He was waiting to be sentenced (R. 304). While in the jail, he made contact with Wayne Tompkins after he "was placed in the cell with him" (R. 305). After his contact with Mr. Tompkins, Turco personally contacted prosecutor

Thereafter, the prosecutor located a jail house informant, Kenneth Turco, who claimed that Mr. Tompkins had confessed the murder.10 Mr. Turco‟s testimony so matched Kathy Stevens‟ story that defense counsel argued that the informant had obtained access to Ms. Stevens‟ deposition or statement and used it to mold his testimony.11 13

Benito, who visited him and promised only "my safety in the jail and that [he] would tell the judge at my sentencing hearing that I cooperated and I came forward and testified in a murder trial" (R. 311). Turco testified that he was not hopeful that his testimony would help him on the escape sentence because he would still be doing time anyway (R. 315). However, it had crossed his mind that his testimony would help him (Id.). In 1989, Mike Benito, Mr. Tompkins‟ prosecuting attorney, testified that he took over Turco‟s prosecution two weeks after Wayne Tompkins‟ sentence of death. He explained, "I walked down to court. I was about to offer Mr. Turco a negotiation. I got in here and I looked at Mr. Turco and I said, „This guy showed a lot of guts coming forward as a jailhouse informant to testify as to what Mr. Tompkins told him.‟" (PC-R. 235). So, Benito "got up and walked down here and announced the case, and said, „I nol-pros it.‟" A grateful Turco "looked at [Benito] like he had just been handed his first bicycle at Christmas." (PC-R. 236).

12 Mrs. DeCarr‟s shifting the time line of her account was necessary because her previous story made Kathy‟s story impossible (between 8:00 AM and 9:00 AM, Barbara had said she was home and Mr. Tompkins wasn‟t and that he did not return to the house until after 10:00 AM, while Kathy said before going to school

Following Kathy Stevens report that she witnessed Mr. Tompkins‟ strangling Lisa at around 8:30 AM, Mrs. DeCarr was able to remember that contrary to her earlier statements that she had left the house before 8:30 AM, and at that time Mr. Tompkins was still there, as was Lisa. Previously, her recollection was that Mr. Tompkins left to take one of her sons to school and wasn‟t home when she left after 9:00 AM.12 According to an undated typed statement of Mrs. DeCarr that was provided to the police before Kathy Stevens claimed to have witness Mr. Tompkins strangling Lisa. In that statement, Mrs. DeCarr said, 14

at 8:30 AM or so she saw Mr. Tompkins was assaulting Lisa on the couch). 13 Although it presented 8 witnesses at trial, the State advised the jury that "the key testimony will come from three [] witnesses"--Barbara DeCarr (the victim's mother), Kathy Stevens (the victim‟s best friend), and Kenneth Turco (the jailhouse snitch)--and that "[t]hose three will provide the overwhelming evidence" that Mr. Tompkins killed Lisa DeCarr on the morning of March 24, 1983 (R. 108). 14 The jury did not learn of the information provided Mrs. DeCarr and Wendy Chancey to a police officer regarding their observations of Lisa on the afternoon of March 24, 1983, which was inconsistent with the testimony of Kathy Stevens, Barbara DeCarr, and Kenneth Turco. Nor did the jury learn of the information set forth in Lisa DeCarr‟s school records and in police reports concerning Lisa DeCarr as a missing person documenting statements by numerous people reporting sightings of contact with Lisa DeCarr after March 24, 1983, and throughout the remainder of that year.

"Wayne had taken Jamie (my youngest son) to school just before 8:00 a.m. and then went to his mother‟s house for breakfast and coffee. He stayed at his mother‟s house until approximately 10:00 a.m. when he left to get some newspapers to pack dishes with."

At trial,13 Wendy Chancey was unavailable and defense counsel was precluded from cross-examining Mrs. DeCarr regarding the statements attributed to her in the March 24, 1983, police report.14 The State‟s theory of the case was outlined in its opening statement. According to the State Wayne Tompkins and Mrs. DeCarr were boyfriend and girlfriend in March of 1983. Mr. Tompkins was living with DeCarr, along with her three children, including 15-year old Lisa (R. 15

107-08). On the morning of March 24, 1983, Barbara went to Mr. Tompkins‟ mother‟s house to help her move; before she left the house between 8:30 and 9:00 AM, she checked in on Lisa, who was in bed and was wearing a pink bathrobe (R. 110). After Barbara left, Kathy arrived somewhere between 8:30 and 9:00 AM and saw Mr. Tompkins strangling Lisa.15 During Mr. Tompkins‟ trial, the prosecutor relied upon Stevens‟ testimony to urge the jury to convict Mr. Tompkins, arguing, "[h]er testimony alone . . . convicts this man" (R. 346; see also R. 346-49, 360). The prosecutor relied upon Stevens‟ testimony to urge the jury to recommend a death sentence (R. 444-45). Thereafter, the jury convicted and recommended a sentence of death. The trial judge relied upon Stevens‟ testimony to support the "committed during a felony" aggravating circumstance (R. 679).

15 At the 1989 hearing, the trial prosecutor, Mike Benito, confirmed that his theory was that the offense occurred at about 9:30 or 10:00 a.m. on that date (PC-R. 87).

In the course of the collateral proceedings, withheld exculpatory evidence has surfaced, along with witnesses and documents that were not presented by the defense which demonstrated that Kathy‟s story - the basis of the prosecution‟s theory of the case - could have been thoroughly impeached and shown to not be 16

true.16 For example in 2001, the State disclosed a June 8, 1984, police report concerning an interview of an individual named Maureen Sweeney taken on June 8, 1984, at 2130 hrs: SWEENEY advised that it was very strange the explanation given surrounding LISA'S disappearance. She advised that she was told that LISA had come home, found Wayne sitting at the kitchen table with her mother and asked 'what the hell is he doing here!' Her mother, BARBARA, explained that he had no place to go and that she was going to let him move in with them, until he could get on his feet. At that point LISA ran out the back door. According to MAUREEN it was very unusual for LISA to be outside without her makeup and supposedly she had been outside then come back inside and then gone out again without her makeup. Lisa's brother BILLY left the house to go find her and came back to take care of JAMIE. The sequence of events that Sweeney reported is consistent with what Mrs. DeCarr had told the police on March 24, 1983, and is inconsistent with the State‟s theory of the case, that murder occurred between 8:00 and 9:00 AM on March 24th.

16 In 1989, the State disclosed that it was in possession of Lisa DeCarr‟s school records at the time of Mr. Tompkins‟ trial. These records were not available to the defense attorney since he was not in possession of a release for the records, and because the trial prosecutor did not disclose the records. However, these records documented the circumstances of Lisa DeCarr‟s suspension on March 23, 1983, and the numerous statements made by Barbara DeCarr and others to school officials reporting that Lisa had runaway because she was pregnant and that various students had either seen or had contact with Lisa in April and May of 1983.

It was only in the post-conviction proceedings that Mr. Tompkins or his counsel learned that the prosecutor had written file memos memorializing Kathy‟s 17

statements to him when he first contacted her and she changed her story. It was only after receiving these memos that Mr. Tompkins learned that Kathy Stevens, a mentally troubled teen, was given access to her incarcerated boyfriend that she had not been allowed to see until after she changed her story and incriminated Mr. Tompkins.

In 1989, Mr. Tompkins presented the testimony of Gladys Staley regarding her contact with Lisa DeCarr in the early afternoon of March 24, 1983, at Ms. Staley‟s residence (PC-R. 306-07). Gladys Staley testified that she saw Lisa in the early afternoon of March 24, 1983, at around 2:30 PM and spoke to her (PC-R. 410-11). Even though Ms. Staley had advised a police officer in June of 1984 of her visit with Lisa DeCarr at around 2:30 PM on March 24th, the trial prosecutor did not list her as a witness (PC-R. 414).17

17 In 1989, Mr. Tompkins also introduced an affidavit from Jerry Behringer into evidence in which he stated under oath that "Lisa is not dead. About three months after Wayne‟s trial I saw Lisa at a convenience store on the corner of 15th and Hillsborough Street. I called out, „Lisa.‟ She turned, looked directly at me, froze, and then ran down an alley behind the store. I lost her but there is not a question, whatsoever, that I personally saw Lisa DeCarr, alive." (PC-R. 251; Def. Ex. 16; PC-R. 568).

Similarly, Kathy Stevens‟ testimony was contradicted by "Junior" Davis, Lisa DeCarr‟s boyfriend at the time of her disappearance when he was located in 18

2002. After years of searching and after the State finally provided previously undisclosed documents about Davis in 2001, Mr. Tompkins‟ counsel located "Junior" Davis in April of 2002. "Junior" Davis‟s full name is James M. Davis, Jr. Upon being contacted, Mr. Davis reported that he had been Lisa DeCarr‟s boyfriend in March of 1983. In a sworn affidavit, Mr. Davis stated, "[t]he story of Kathy running into me at the store the day Lisa disappeared is not true. If anyone had told me that Wayne was attacking Lisa and she was screaming for someone to call the police, I would have gone directly there" (Affidavit of James M. Davis, Jr., paragraph 6, 4PC-R. 130). Mr. Davis elaborated: If I thought there was anyway I could have helped [Lisa], I would have, especially if she were in trouble. This is why what Kathy said is not true. I never saw Kathy on the morning that Lisa disappeared, nor did Kathy ever tell me that she had just seen Lisa being attacked by Wayne. In fact, the first time I heard of anything having possibly happened to Lisa was when I heard on the radio she was missing. (Affidavit of James M. Davis, Jr., paragraph 8, 4PC-R. 130). Throughout the history of this case, Mr. Tompkins has maintained that he did not commit the murder for which he stands convicted. He has always maintained his innocence. Procedural History

Mr. Tompkins was indicted for first-degree murder and pled not guilty. 19

Trial commenced September 16, 1983, and a jury found him guilty (R. 401). Following a penalty phase, the jury recommended the death penalty, and the judge immediately imposed a sentence of death (R. 678-81). The conviction and sentence were affirmed. Tompkins v. State, 502 So. 2d 415 (Fla.), cert. denied, 483 U.S. 1033 (1987). After a death warrant was signed, a motion to vacate was filed and an evidentiary hearing was conducted. Though the circuit court found trial counsel‟s performance was deficient, relief was denied.18 The Florida Supreme Court stayed the execution and later affirmed the denial of relief. Tompkins v. Dugger, 549 So. 2d 1370 (Fla. 1989). After a second death warrant a federal habeas petition was filed, and the federal district court stayed the execution. An amended petition was subsequently filed, and denied. On appeal, the Eleventh Circuit affirmed. Tompkins v. Moore, 193 F.3d 1327 (11th Cir. 1999), cert. denied, 121 S.Ct. 149 (2000).

18 Trial counsel, Daniel Hernandez, testified in 1989 that he was appointed in early 1985 after Mr. Tompkins‟ previous counsel withdrew to accept a position as a prosecutor attorney. Mr. Hernandez testified that this was his first capital case (PC-R. 104). The judge presiding at the 1989 evidentiary hearing, Judge Coe, made oral findings after her closing arguments on the pending Rule 3.850 motion. Judge Coe specifically stated: "during the penalty phase, I do find that the attorney failed to investigate, prepare and present mitigation evidence. It was a deficient performance. The acts and omission were specified and fell outside the wide range of professionally competent assistance" (PC-R. 471). 20

In March of 2001, a second death warrant was signed for Mr. Tompkins‟ execution. Thereafter, Mr. Tompkins filed a second motion to vacate in which he challenged his conviction and sentence of death. This Court summarily denied guilt phase relief, but granted an evidentiary hearing on Mr. Tompkins‟ challenge to his death sentence. At the conclusion of the hearing, this Court vacated Mr. Tompkins‟ sentence of death and granted a re-sentencing. Both parties appealed. The Florida Supreme Court reversed this Court‟s order granting a re-sentencing and affirmed the denial of guilt phase relief. Tompkins v. State, 872 So. 2d 230 (Fla. 2003). In its October 9, 2003, opinion, the Florida Supreme Court stated: "Based on the foregoing, we affirm the trial court‟s summary denials of Tompkins‟ Brady claims and affirm the trial court‟s denial of Tompkins motion for DNA testing and motion to compel the production of public records. However, we reverse the trial court‟s order granting a new penalty phase trial and reinstate the death sentence. The stay of execution is dissolved effective 30 days after this decision becomes final."

While that appeal had been pending, Mr. Tompkins had filed another Rule 3.851 motion with this Court based upon Junior Davis‟ affidavit. The circuit court dismissed the motion finding that it lacked jurisdiction during the pendency of the previous appeal. Mr. Tompkins appealed. This Court affirmed, but granted Mr. 21

Tompkins "60 days to re-file his successive post-conviction motion nunc pro tunc to February 5, 2003, the date the prior motion was filed in the trial court." Tompkins v. State, 894 So. 2d 857 (Fla. 2005). Thereafter, Mr. Tompkins re-filed his 3.850 motion. The circuit court denied the motion and Mr. Tompkins again appealed. On May 10, 2007, this Court issued an opinion affirming the denial of 3.850 relief. Tompkins v. State, 980 So. 2d 451 (Fla. 2007). Mr. Tompkins filed a motion for rehearing which was denied on July 16, 2007. The mandate issued, returning jurisdiction to the lower court on August 2, 2007. On August 16, 2007, Mr. Tompkins filed another Rule 3.851 motion in circuit court. Included within this motion was a challenge to Florida‟s method of execution in light of the Angel Diaz execution. The circuit court summarily denied the motion on March 18, 2008. Mr. Tompkins‟ motion for rehearing was denied on April 7, 2008. Mr. Tompkins filed a notice of appeal on May 7, 2008.

On October 2, 2008, the Governor re-scheduled Mr. Tompkins‟ execution for October 28, 2008. On October 6, 2008, this Court stayed the execution. On October 15, 2008, Mr. Tompkins filed another Rule 3.851 motion. A case management hearing was held that same day. On October 21, 2008, the circuit court summarily denied the Rule 3.851 motion. Mr. Tompkins appealed to this Court and submitted briefing as directed by the Court on the issues presented by 22

the proceedings on his two separate appeals. Mr. Tompkins also filed an all writs petition with this Court.

After Mr. Tompkins had submitted his reply briefs and his reply to the State‟s response to the all writs petition,19 the State disclosed a new sworn statement from Kenneth Turco. The disclosure was made on October 30, 2008. Mr. Turco had provided the sworn statement to an assistant state attorney on October 28, 2008. When this disclosure was made on October 30th, Mr. Tompkins‟ counsel had just finished a grueling seven day period in which he had filed with this Court two initial briefs, an all writs petition, two reply briefs, and a reply to the response to the all writs petition. After having cranked out these six pleadings in a seven day period, Mr. Tompkins‟ counsel was preparing a federal habeas petition to be filed in federal court.20

19 Mr. Tompkins had filed a seventy-four page initial brief in his first Rule 3.851 appeal on October 23, 2008. On October 24, 2008, he filed his fifty-five page initial brief in the second Rule 3.851 appeal, along with his fifty page all writs petition. On October 29, 2008, Mr. Tompkins filed a fourteen page reply brief with this Court in the first appeal. On October 30, 2008, Mr. Tompkins filed a twenty-five page reply brief in the second appeal, and he filed a five page reply to the response to the all writs petition.

20 When the federal petition was ultimately completed and filed on November 4th, it was 89 pages in length.

After receiving Turco‟s sworn statement on October 30th, Mr. Tompkins 23

filed a motion to relinquish jurisdiction with this Court on the morning of November 3, 2008. Mr. Tompkins filed this motion to relinquish because this Court‟s case law establishes that the circuit court lacks jurisdiction to entertain a new Rule 3.851 motion while an appeal of a previous motion is pending in this Court. Tompkins v. State, 894 So. 2d 857 (Fla. 2005). Mr. Tompkins filed the motion on the morning of November 3rd because he felt obligated to advise this Court of the bombshell information that was contained in Mr. Turco‟s sworn statement.21 He did not feel it appropriate to wait until this Court had resolved the other two appeals before filing a new Rule 3.851 motion. He thought the State might accuse such inaction as sandbagging.

21 Had counsel not filed the motion to relinquish, he would, now that this Court‟s mandate has issued, be able to investigate, prepare, and file a Rule 3.851 motion alleging his constitutional claims arising from Mr. Turco‟s newly disclosed sworn statement. But because he filed the motion to relinquish in order to give this Court notice that the State had just provided him with what can only be described as a bombshell, Mr. Tompkins has lost his right and/or opportunity to have a zealous advocate investigate, prepare, and file in court his constitutional challenges to his conviction and sentence in light of Mr. Turco‟s sworn statement. This Court did not just deny the motion to relinquish, it reached and decided a constitutional challenge that had not yet been investigated, prepared and submitted to a court. For all practical purposes, the State could have just easily provided this Court with the statement on October 30th so that this Court could act as Mr. Tompkins‟ counsel as to the issues arising from the statement, as well as the arbiter of the merit of the claims that this Court identified as present. 24

So a scant three days after receiving the bombshell sworn statement of Kenneth Turco,22 Mr. Tompkins filed an eight page motion to relinquish with this Court in which he identified the pertinent trial testimony of Mr. Turco, the prosecutor‟s reference to it in his closing, the constitutional principles contained in Brady v. Maryland and Giglio v. United States showing that substantial issues were present and in need of investigation. Mr. Tompkins‟ motion then concluded with a specific request: 10. Under the circumstances here, Mr. Tompkins seeks an opportunity to present his Sixth and Fourteenth Amendment claims in a Rule 3.851 motion. Mr. Tompkins also seeks a fair opportunity to be heard on his claims. Clearly, the circuit court does not have jurisdiction to entertain such a motion. Further, Mr. Tompkins needs some time to prepare the claim, a motion for judicial disqualification for the reasons set forth in his Initial Brief in Case No. SC08-992, and to obtain the proper verifications from Mr. Tompkins who is located a days travel away. Motion to Relinquish at 8.

22 In context it is important to remember that the disclosure on October 30, 2008, was twenty-three (23) years after the conclusion of Mr. Tompkins‟ trial.

In the motion, Mr. Tompkins identified the newly disclosed sworn statement and indicated that it implicated Mr. Tompkins‟ rights under Giglio v. United States, 405 U.S. 150, 153 (1972), and under Brady v. Maryland, 373 U.S. 83 (1963). In this motion, Mr. Tompkins asked for an opportunity to investigate and 25

present his constitutional claims arising from Mr. Turco‟s sworn statement. The motion does not purport to actually present Mr. Tompkins claims arising from the sworn statement that had been disclosed a mere three days earlier. The motion simply sought to show that the newly disclosed sworn statement raised a substantial (i.e. non-frivolous) issue that warranted investigation and an opportunity to prepare Mr. Tompkins‟ resulting claims so that he could be provided access to the courts and a reasonable opportunity to be meaningfully heard. Thereafter, this Court issued an order on November 4, 2008, denying the motion to relinquish. In this Court‟s opinion which issued on November 7, 2008, this Court proceeded to construct the claim that it saw arising on Mr. Tompkins‟ behalf as a result of the disclosure of Mr. Turco‟s sworn statement, and then to address the claim on the merits and deny the claim as only raising harmless error. In the November 7th Order, this Court further wrote that "no motion for rehearing will be allowed." Slip Op. at 39.

Mr. Tompkins was not permitted an opportunity to investigate the circumstances of the sworn statement. Mr. Tompkins had not been able to locate Mr. Turco when he looked for him in October of 2008, and Mr. Turco had previously refused to provide Mr. Tompkins with a sworn statement. After the 26

State obtained its sworn statement from Mr. Turco, Mr. Tompkins was not given the opportunity to depose Mr. Turco, to ask Mr. Turco questions under oath (questions which counsel for the State did not ask)23, to confront Mr. Turco and cross-examine him regarding his assertions in his sworn statement, or to investigate the matter further by seeking further discovery and an opportunity to depose other witnesses. Mr. Tompkins was denied an opportunity to have counsel on his behalf use the fruits of an investigation to raise constitutional claims on his behave in a court of law and/or brief these claims to the appropriate courts by filing a Rule 3.851 motion challenging his conviction and sentence. Because he was not permitted to file a Rule 3.851 motion and follow the process set forth in that Rule,

23 This is not meant as some veiled attack on the assistant state attorney who obtained the sworn statement. Mr. Tompkins appreciates the fact this assistant state attorney not only obtained the statement, but disclosed it as well. Mr. Tompkins‟ point, however, is premised upon the fact that our system of law is based upon an adversarial process, i.e. that counsel for the State in representing the State will ask different questions than counsel for Mr. Tompkins will. To rely solely upon statements taken by a prosecuting attorney, no matter how honorable, destroys the adversarial process which is the bedrock of American jurisprudence and results in an inquisitorial process which is an anathema to due process as guaranteed by our constitution. The prosecutor in taking the sworn statement was able to choose what questions to ask, and implicitly what questions were not asked. This Court‟s opinion of November 7th took away Mr. Tompkins right and/or opportunity to have a level playing field and an equal opportunity to probe. 27

Mr. Tompkins was denied an opportunity to appear at a case management hearing and orally argue in support of any claims that were developed and written up.24 Mr. Tompkins was denied even the opportunity to file a motion for rehearing with this Court and complain about the failure to honor Mr. Tompkins‟ right to due process.25 In fact, Mr. Tompkins was denied access to the courts to raise his

24 In Huff v. State, 622 So. 2d 982, 983 (Fla. 1993), this Court held:

Because of the severity of punishment at issue in a death penalty post-conviction case, we have determined that henceforth the judge must allow the attorneys the opportunity to appear before the court and be heard on an initial 3.850 motion. This does not mean that the judge must conduct an evidentiary hearing in all death penalty post-conviction cases. Instead, the hearing before the judge is for the purpose of determining whether an evidentiary hearing is required and to hear legal argument relating to the motion. If this procedure had been followed in the instant case, this Court might not be faced with the issue of whether Huff's due process rights were violated. 25 This Court provided no justification for its action in this regard. This Court had previously stayed the October 28th execution date. Having entered that stay, it was up to the Governor as this Court explained in the November 7th opinion to set a new execution date. As this Court explained in its opinion, the Governor‟s discretion in this regard is unfettered. At no time since the entry of the temporary stay on October 6th indicating that an execution could not occur before November 18th has the Governor set a new execution date. So on November 7th at the time of this Court‟s opinion, Mr. Tompkins like every other individual on Florida‟s death row did not have a pending execution. In other capital appeals in which an execution date has not been set, this Court always permits a party to the appeal to file a motion for rehearing.

Mr. Tompkins‟ situation was no different than the one that occurred when this Court denied Mr. Tompkins‟ appeal of the denial Rule 3.851 relief in 2003 or when this Court denied a similar appeal in 2007. Yet, in those prior appeals this 28

Court permitted Mr. Tompkins to file motions for rehearing, and he exercised that right. Yet here, this Court perfunctorily denied him that opportunity to petition this Court. 26 This Court issued an opinion that constructed Mr. Tompkins‟ claims arising from Mr. Turco‟s sworn statement and disposed of those claims by finding them harmless. In light of this Court‟s ruling, Mr. Tompkins believes that the circuit court is now precluded by this Court‟s opinion from entertaining a Rule 3.851 premised upon Mr. Turco‟s sworn statement.

constitutional challenges to his conviction and sentence of death.26 III. CLAIM FOR RELIEF THIS COURT’S DENIAL OF MR. TOMPKINS’ MOTION TO RELINQUISH AND ITS SUBSEQUENT DETERMINATION THAT ANY CLAIM THAT MR. TOMPKINS MAY RAISE AS A RESULT OF THE DISCLOSURE OF MR. TURCO’S SWORN STATEMENT OF OCTOBER 28, 2008, DEPRIVED MR. TOMPKINS OF HIS RIGHT TO DUE PROCESS UNDER THE SIXTH AND FOURTEENTH AMENDMENT, AS WELL AS HIS RIGHT OF ACCESS TO THE COURTS TO RAISE AND LITIGATE HIS NON-FRIVOLOUS CONSTITUTIONAL CHALLENGES TO HIS CONVICTION AND SENTENCE OF DEATH. In the sworn statement from Kenneth Turco that was taken on October 28, 2008, by the State and disclosed to Mr. Tompkins‟ counsel on October 30, 2008, Mr. Turco explained that the prosecutor instructed him to add the pocketbook to his testimony at Mr. Tompkins‟ trial:

Well, Michael Bonito [sic] at the time of my - - prior to the testimony, and naturally we met at the Hillsborough County jail, went into a little room and as I was telling him what happened he told me - 29

- he said - - he told me, he said don‟t forget the purse. She was buried with a purse. Make sure you add that in your testimony, and I did. (Turco Sworn Statement of October 28, 2008, at 5). Later, Mr. Turco explained: Q And this thing about the purse in your deposition, you said that you mentioned a pocketbook or purse of something to that effect. A The victim was buried - - Q Go ahead. A That came from Mr. Bonito [sic]. (Turco Sworn Statement of October 28, 2008, at 6). According to Mr. Turco‟s sworn statement of October 28, 2008, at Mr. Benito‟s instruction, Mr. Turco added untrue details to his story. Certainly, Mr. Turco‟s willingness to add untrue details to his testimony explains the prosecutor‟s subsequent dismissal of charges that Mr. Turco had already pled guilty to. Mr. Turco testified at Mr. Tompkins‟ trial in September of 1985. Over twenty-three years later on October 30, 2008, the State disclosed a new sworn statement from Mr. Turco indicating that part of his trial testimony was false and that he testified falsely at the trial prosecutor‟s instruction.

Rule 3.851 provides that a capital defendant has one year from the discovery 30

of new information supporting a constitutional challenge to the defendant‟s conviction or sentence of death in which to investigate the new information, prepare a motion raising the claim, conduct legal research and then file the motion seeking to vacate the judgment and/or sentence. Certainly, the provision in Rule 3.851 affording a capital defendant one year to investigate and present his claim is in recognition of the amount of work involved. It reflects a judgment by this Court that allowing a capital defendant one year to develop and present his claim is the amount of time that is reasonably necessary get the claim ready to be filed in a circuit court. However, this Court, in its opinion of November 7th, stripped Mr. Tompkins of the 362 days that remained on his one year clock at the time that the motion to relinquish was filed.

Florida law provides convicted capital defendants with a right to have counsel who conduct the investigation, who can contact and question witnesses, who can do legal research, and who can prepare and file a motion advocating on behalf of the defendant. This right to counsel exists not just to provide mechanical assistance in getting paperwork filed with a court. The right to counsel is an outgrowth of the adversarial process which is the bedrock of American jurisprudence and the foundation of the right to due process embodied in our constitution. Yet, this Court in its November 7th opinion took away Mr. Tompkins‟ 31

right to have a zealous advocate investigate, prepare, and litigate a challenge to his conviction and sentence based upon Mr. Turco‟s newly disclosed statement. This Court in Wilson v. Wainwright, 474 So. 2d 1162, 1164-65 (Fla. 1985)(emphasis added), wrote:

Appointment of appellate counsel for indigent defendants is the responsibility of the trial court. We strongly urge trial judges not to take this responsibility lightly or to appoint appellate counsel without due recognition of the skills and attitudes necessary for effective appellate representation. A perfunctory appointment of counsel without consideration of counsel's ability to fully, fairly, and zealously advocate the defendant's cause is a denial of meaningful representation which will not be tolerated. The gravity of the charge, the attorney's skill and experience and counsel's positive appreciation of his role and its significance are all factors which must be in the court's mind when an appointment is made.

The role of an advocate in appellate procedures should not be denigrated. Counsel for the state asserted at oral argument on this petition that any deficiency of appellate counsel was cured by our own independent review of the record. She went on to argue that our disapproval of two of the aggravating factors and the eloquent dissents of two justices proved that all meritorious issues had been considered by this Court. It is true that we have imposed upon ourselves the duty to independently examine each death penalty case. However, we will be the first to agree that our judicially neutral review of so many death cases, many with records running to the thousands of pages, is no substitute for the careful, partisan scrutiny of a zealous advocate. It is the unique role of that advocate to discover and highlight possible error and to present it to the court, both in writing and orally, in such a manner designed to persuade the court of the gravity of the alleged deviations from due process. Advocacy is an art, not a science. We cannot, in hindsight, precisely measure the impact of counsel's failure to urge his 32

client's best claims. Nor can we predict the outcome of a new appeal at which petitioner will receive adequate representation. We are convinced, as a final result of examination of the original record and appeal and of petitioner's present prayer for relief, that our confidence in the correctness and fairness of the result has been undermined. Mr. Tompkins recognizes that the specific issue in Wilson v. Wainwright concern ineffective assistance of appellate counsel in the course of a direct appeal. However, this Court‟s recognition of the value of a partisan advocate is premised upon the adversarial nature of the process. It is the judiciary‟s job to resolve disputes between parties to pending litigation. It is not for the judiciary, under our constitution as it is in an inquisitorial process, to act as both the advocate for a party and as the arbiter any legal dispute. This Court also recognized the value of a zealous advocate to a capital defendant challenging his conviction and sentence of death in collateral proceedings. In Huff v. State, 622 So. 2d 982, 983 (Fla. 1993), this Court was presented with a case where collateral counsel was not given an opportunity to orally argue the motion to vacate that he had filed on behalf of a capital defendant. This Court held: We find that Huff was denied due process of law because the court did not give him a reasonable opportunity to be heard.

Because of the severity of punishment at issue in a death penalty post-33

conviction case, we have determined that henceforth the judge must allow the attorneys the opportunity to appear before the court and be heard on an initial 3.850 motion. This does not mean that the judge must conduct an evidentiary hearing in all death penalty post-conviction cases. Instead, the hearing before the judge is for the purpose of determining whether an evidentiary hearing is required and to hear legal argument relating to the motion. If this procedure had been followed in the instant case, this Court might not be faced with the issue of whether Huff's due process rights were violated. Our judicial system is premised upon the notion that it is fundamentally unfair for the judiciary to function without an adversarial process. It is essential to the search for justice that each party brings to bear the "partisan scrutiny of a zealous advocate". Wilson v. Wainwright, 474 So. 2d at 1165. It is only through such advocacy that the adversarial process can function and produce a reliable and just result.

Of course, in order for the adversarial process to work due process guarantees that the litigants receive notice and reasonable opportunity to be meaningfully heard. Certainly, the opportunity to be meaningfully heard entails an ability to bring to bear the "partisan scrutiny of a zealous advocate". The right to due process requires "„notice and opportunity for hearing appropriate to the nature of the case.‟" Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532, 542 (1985), quoting Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950). "[F]undamental fairness is the hallmark of the procedural protections afforded by 34

the Due Process Clause." Ford v. Wainwright, 477 U.S. 399, 424 (1986)(Powell, J., concurring in part and concurring in the judgment). See also Huff v. State. Of course a criminal defendant has not just a right to due process, but a right to those additional guarantees included in the Sixth Amendment. This specifically includes the right to confront and/or cross-examine witnesses called by the State to give evidence against the defendant, the right to counsel, the right to trial by jury, and the right to require the State to prove guilt beyond a reasonable doubt. In fact, this Court found a due process violation when a capital defendant, in a collateral proceeding, was denied the right to cross-examine witnesses that were heard by the Court while the defendant and his counsel were excluded from the courtroom. Teffeteller v. Dugger, 676 So. 2d 369, 371 (Fla. 1996). See also, Roberts v. State, 678 So.2d 1232 (Fla. 1996). Yet here, Mr. Tompkins has been denied the opportunity to cross-examine Mr. Turco regarding his October 28th sworn statement.

The due process rights embodied by Brady v. Maryland and Giglio v. United States are not merely rights unto themselves. The right to have the State disclose any and all favorable information in its possession and the right to have them refrain from presenting false testimony are rights necessary to ensure that the full panoply of Sixth Amendment rights are operational and working to ensure an 35

adequate adversarial testing which produces a constitutionally reliable result.27 The failure to disclose favorable information impairs the functionality of the defendant‟s Sixth Amendment constellation of rights: his right of confrontation, his right to counsel, his right to trial by jury, and his right to have the State prove guilt beyond a reasonable doubt.

27 In Strickland v. Washington, 466 U.S. 668, 685 (1984)Strickland v. Washington, 466 U.S. 668, 685 (1984), the Supreme Court explained that under the Sixth Amendment, "a fair trial is one which evidence subject to adversarial testing is presented to an impartial tribunal for resolution of issues defined in advance of the proceeding." In order to guarantee that a constitutionally adequate adversarial testing occurs, constitutional obligations are imposed upon both the prosecutor and the defense attorney. Failures by either to function as required warrants a new trial if confidence is undermined in the reliability of the outcome of the trial. Brady v. Maryland, 373 U.S. 83, 87 (1963).

Because the rights recognized in Brady and Giglio exist to insure the functioning of the complete process, the adversarial process, each failure cannot be evaluated in isolation. Instead, cumulative consideration of the various and individual failures must be given because the individual failures do not happen in isolation during the course of a capital trial. What is or is not disclosed by the State potentially impacts every action or strategic decision a defense attorney makes. The failure to disclose that testimony it has presented is false similarly impacts the course of the trial and the actions, decisions, and arguments that 36

defense counsel makes. The issue is how could defense counsel at trial have used the suppressed evidence or the fact that a State witness testified falsely. Kyles v. Whitley, 514 U.S. 419, 446 (1995) ("Even if Kyles‟s lawyer had followed the more conservative course of leaving Beanie off the stand, though, the defense could have examined the police to good effect on their knowledge of Beanie‟s statements and so have attacked the reliability of the investigation in failing even to consider Beanie‟s possible guilt and in tolerating (if not countenancing) serious possibilities that incriminating evidence had been planted."). See also Scipio v. State, 928 So. 2d 1138 (Fla. 2006). Accordingly in addressing the prejudice flowing from a failure to disclose favorable information or from the presentation of false testimony, consideration must given on not just what evidence that the jury heard, but the impact individually and collectively the constitutional violations had on how the trial progressed and what evidence and arguments the jury did not hear in addition to the potential strengthening of the case that the defense did present. It is not a question of whether there is sufficient, untainted evidence remaining on which the jury could still convict. Kyles v. Whitley, 514 U.S. 419, 434 (1995) ("The second 37

aspect of Bagley materiality bearing emphasis here is that it is not a sufficiency of the evidence test."). As the United States Supreme Court explained: A defendant need not demonstrate that after discounting the inculpatory evidence in light of the undisclosed evidence, there would not have been enough left to convict. The possibility of an acquittal on a criminal charge does not imply insufficient evidentiary basis to convict. Kyles, 514 U.S. at 434-35. In fact, the Supreme Court in Kyles specifically noted, "the effective impeachment of one eyewitness can call for a new trial even though the attack does not extend directly to others, as we have said before." Kyles, 514 U.S. at 445. Consideration should be given to the potential defense argument that if the State instructed one witness to lie, can jurors trust beyond a reasonable doubt other evidence presented by the State to not be the result of State manipulation. The proper prejudice analysis of Brady and Giglio claims require consideration spoilage to spread. As with a bowl of fruit, there is great potential for the spoilage of one apple to spread to others in the bowl.

As a result, it is critical that the prejudice be evaluated from the point of view of the defense attorney and how the constitutional error impacted his choices. Yet, Mr. Tompkins has not been permitted to explain how the numerous constitutional deprivations previously identified in proceedings in 1989 and in 2001, when evaluated cumulatively with the revelation contained in Mr. Turco‟s 38

October 28th sworn statement, impacted the presentation of Mr. Tompkins‟ defense. Consideration of Mr. Turco‟s sworn statement, along with the previously presented evidence of violations of Brady and Giglio, is required in order to determine whether a new trial is warranted. This is not just to evaluate the prejudice flowing in light of the revelation made by Mr. Turco; it is also necessary in order to consider whether this Court‟s prejudice analysis in Mr. Tompkins‟ previous appeals would produce a new result in light of Mr. Turco‟s statement that the trial prosecutor instructed him to lie.

In 1989, Mr. Tompkins presented a number of challenges to the adequacy of the adversarial process guaranteed by the Sixth Amendment. If this new information had been known when the prejudice flowing from the school records showing statements made by Barbara DeCarr and others that Lisa DeCarr had runaway to New York which the State had in its possession but did not disclose, how would the materiality analysis been changed. If this had been known when evaluating the prejudice flowing from the failure to disclose the file memos that the trial prosecutor made summarizes Kathy Stevens‟ statements to him, how would the materiality analysis been changed. When evaluating the prejudice flowing from trial counsel‟s failure to learn of and present Gladys Staley‟s testimony that 39

Lisa DeCarr came to her residence on March 24, 1983, between 2:00 and 3:00 PM, how would the analysis have changed. When evaluating Mr. Tompkins‟ claim that the trial prosecutor failed to correct Barbara DeCarr‟s false and misleading testimony that she had noticed Lisa‟s blue jeans missing and that she had not indicated to the police or anyone that she had seen Lisa DeCarr after Barbara left her house on the morning of March 24, 1983, how would the prejudice analysis been changed. If Mr. Turco‟s recent revelation had been known when evaluating the fact that Kathy Stevens, contrary to her testimony, received benefit from repudiating the story that she had told for two years that a pregnant Lisa ran away as well as her claiming to have seen Mr. Tompkins assaulting Lisa and hearing Lisa ask her to get help, how would the prejudice analysis been changed. How would the analysis change when evaluating Mr. Tompkins‟ claim that Mr. Turco was a State agent and his testimony regarding any statements made by Mr. Tompkins without a waiver of his Sixth Amendment right to counsel was inadmissible. When evaluating Mr. Tompkins‟ claim that the State withheld the potential benefit available to Mr. Turco and which was in fact given to him, i.e. dismissal of the escape charge to which Mr. Turco had already pled guilty, how would Mr. Turco‟s statement that on the trial prosecutor‟s instruction he lied to Mr. Tompkins‟ jury changed the analysis. When evaluating the impact of the affidavit 40

of Jerry Behringer, in which Mr. Behringer swore that shortly after Mr. Tompkins‟ trial he saw and called out to Lisa DeCarr who then looked up and fled away, how would the analysis have changed.

In 2001, Mr. Tompkins raised a number of additional challenges to the adequacy of the adversarial process guaranteed by the Sixth Amendment in light of new information that the State had in its possession, but which it had not disclosed until April of 2001. If Mr. Turco‟s recent revelation had been known then, what change would have occurred in the prejudice analysis of the State‟s failure to disclose police reports showing statements from witnesses that Barbara DeCarr had indicated that Lisa ran away in the afternoon after she came into the house and discovered that Mrs. DeCarr was having Mr. Tompkins move back into the house. If Mr. Turco‟s recent revelation had been known in 2001, what change would have occurred in the analysis of the prejudice flowing from the State‟s failure to disclose Mrs. DeCarr‟s statements to police during the summer of 1983 that a number of people had reported to her that they had seen Lisa in various places around Tampa. If Mr. Turco‟s recent revelation had been known, what change would have occurred in the analysis of the police reports concerning the Jesse Albach homicide which the police believed was committed by the same person who killed Lisa DeCarr, although they had no evidence tying Mr. Tompkins to Ms. Albach‟s 41

murder. When considering Mr. Tompkins request for DNA testing, what impact would Mr. Turco‟s recent statements have had of the analysis of the issue. When Mr. Tompkins presented Junior Davis‟ affidavit to this Court in 2004, in which he sworn that Kathy Stevens had never told him that she observed Mr. Tompkins attacking Lisa and heard Lisa call for her to get help, how would Mr. Turco‟s revelation that he had been instructed to lie at Mr. Tompkins‟ trial changed the analysis.

When this Court denied Mr. Tompkins‟ motion to relinquish and then proceeded to construct constitutional claims on Mr. Tompkins‟ behalf and find those claims meritless under a harmless error analysis, it deprived Mr. Tompkins of his right to bring to bear the "partisan scrutiny of a zealous advocate". Wilson v. Wainwright, 474 So. 2d at 1165. As a result, this Court did not hear from Mr. Tompkins‟ point of view what the proper standard is for determining the prejudice that resulted from the error presented in Mr. Tompkins‟ case, and how that standard applies here. This Court did not hear from an advocate for Mr. Tompkins as to how Mr. Turco‟s revelation could have and would have affected the defense‟s presentation of its case at trial, particularly in light of information and evidence that was available and could have been presented, but which the jury did not hear as a result of the constitutional errors that have been identified in Mr. Tompkins‟ 42

case. The claim that this Court constructed on Mr. Tompkins‟ behalf, where a prosecutor deliberately engages in deception, warrants a new trial unless the State proves the error harmless beyond a reasonable doubt. Guzman v. State, 868 So. 2d 498, 506 (Fla. 2003) ("[t]he State as beneficiary of the Giglio violation, bears the burden to prove that the presentation of false testimony at trial was harmless beyond a reasonable doubt."). At no time was Mr. Tompkins given notice that the harmlessness of a Giglio violation was at issue. Even though it is the State that bears the burden of proof, Mr. Tompkins was not given an opportunity to be heard on whether the State could meet this burden. This Court‟s action in denying the motion to relinquish and denying Mr. Tompkins the opportunity to be heard on this issue violated due process. But, the constitutionally guaranteed right to due process was not only the right that Mr. Tompkins was deprived of. This Court‟s action also deprived him of the right to investigate the favorable information and prepare a challenge to his conviction and sentence of death. This Court deprived Mr. Tompkins of the right to access the courts and presented his constitutional challenges premised upon Mr. Turco newly disclosed sworn statement.

This Court recently explained the constitutionally guaranteed right to access 43

the courts in Mitchell v. Moore, 786 So. 2d 521, 525 (Fla. 2001): There are two sources of the right to access the courts. Florida's constitution specifically guarantees a citizen's access to courts. See art. I, § 21, Fla. Const. The Constitution of the United States does not, however, contain a specific clause providing for this right. The United States Supreme Court, nevertheless, has held that there is such a right arising from several constitutional provisions including the First Amendment, the Due Process Clause, and the Equal Protection Clause. See generally Bounds v. Smith, 430 U.S. 817, 825, 52 L. Ed. 2d 72, 97 S. Ct. 1491 (1977) (holding that prisoners have a fundamental constitutional right to "a reasonably adequate opportunity to present claimed violations of fundamental constitutional rights to the courts"), modified, Lewis v. Casey, 518 U.S. 343, 135 L. Ed. 2d 606, 116 S. Ct. 2174 (1996). The Supreme Court described the right of "access to courts" as including, among other things, the provision of an acceptable law library. 430 U.S. at 828. In Lewis v. Casey, 518 U.S. at 355, however, the Court made clear that "access to courts" does not guarantee inmates the right to "transform themselves into litigating engines capable of filing everything from shareholder derivative actions to slip-and-fall claims." States must only provide a reasonably adequate opportunity to file non-frivolous legal claims challenging their convictions or conditions of confinement. Id.

This Court has also said that the right to habeas corpus is a "basic guarantee of Florida law." Haag v. State, 591 So. 2d 614, 616 (Fla. 1992). There, this Court explained:

[B]oth simplicity and fairness are equally promoted by the right to habeas corpus relief that emanates from the Florida Constitution and has been partially embodied within Rule 3.850. Art. I, § 13, Fla. Const.; [State v.] Bolyea, 520 So. 2d [562] at 563 [Fla. 1988]. The fundamental guarantees enumerated in Florida's Declaration of Rights should be available to all through simple and direct means, without needless complication or impediment, and should be fairly 44

administered in favor of justice and not bound by technicality. Haag, 591 So. 2d at 616. Although the right, "like any other constitutional right, is subject to certain reasonable limitations consistent with the full and fair exercise of the right," the limitations must not be "applied harshly or contrary to fundamental principles of fairness." Id. Yet here, that is precisely what occurred.

Because this Court denied Mr. Tompkins the opportunity to have his counsel investigate, prepare, and present any constitutional challenges that arose from Mr. Turco‟s October 28th sworn statement, he was precluded from filing a Rule 3.851 motion detailing his claims and arguments as to why he was entitled to have his conviction and sentence of death vacated. Had counsel had such an opportunity, he could have outlined all of the evidence that the jury did not hear because either the State suppressed it, or defense counsel, while conducting his first capital case, failed to present evidence which demonstrated that Lisa DeCarr was not killed on the morning of March 24, 1983. Evidence indicating that Lisa was not killed at 9:00 AM was inconsistent with and impeached Mr. Turco‟s testimony that Mr. Tompkins admitted killing Lisa at 9:00 AM (PC-R. 369).28 The evidence that has

28 In its November 7, 2008, opinion, this Court specifically accepted and relied upon the reliability of Mr. Turco‟s testimony in 1985 that Mr. Tompkins confessed to killing Lisa at 9:00 AM. In so doing, this Court simply ignored of all of the evidence that has now been presented that Lisa was seen alive after the time that 45

Mr. Turco testified she was killed.

been presented by counsel in post-conviction, and which the jury did not hear, shows that Lisa was alive after the time that Mr. Turco‟s testimony indicated she was murdered and includes: 1) Lisa DeCarr‟s undisclosed school records indicating that Barbara DeCarr reported that Lisa had run away, and that students had reported hearing from Lisa in the month of April of 1983, when she called from New York to say that she was pregnant, but otherwise fine; 2) Barbara DeCarr‟s various statements to the police between March 24, 1983, and the end of the year, in which she indicated that certain articles of clothing that Lisa may have been wearing when she ran away were missing, and she reported a number of sightings of Lisa in the Tampa area that various people reported to her in the summer of 1983;

3) Gladys Staley‟s statement to the police in June of 1984 that Lisa had come to her residence between 2:00 and 3:00 PM on March 24, 1983, which was the day Ms. Staley was packing for her move to Brooksville, and her testimony in 1989 confirming what a police officer reported in a deposition that Ms. Staley had spoken with Lisa on the afternoon of March 24th and expressed concern to Lisa that 46

the clothing that she was wearing (which Ms. Staley described) was not sufficiently warm for the wet cool weather that day (PC-R. 411); 4) The statement Wendy Chancey made to a police officer on the evening of March 24, 1983, that she had seen Lisa around 3:00 PM getting into car which drove off with Lisa inside; 5) The affidavit of Jerry Behringer in which Mr. Behringer swore that shortly after Mr. Tompkins‟ trial, he saw Lisa in Tampa and called out to her, but when she heard him call, she looked up and ran away; and 6) The statements of Maureen Sweeney and Mike Willis in June of 1984, that they had spoken to Barbara DeCarr and been told that the day that Lisa disappeared she had arrived at home in the early afternoon to find Mr. Tompkins there and learned that he was moving back in, and that Lisa then had an argument with her mother at the conclusion of which Lisa ran out of the house and did not return even though one of her brothers went looking for her.

When this Court determined that Mr. Turco‟s sworn statement that the trial prosecutor instructed him to lie and tell Mr. Tompkins‟ jury that Mr. Tompkins had told him that he buried Lisa‟s purse demonstrated a Giglio violation that was harmless beyond a reasonable doubt, this Court did not consider all of the information that now exists which directly conflicts with Mr. Turco‟s testimony 47

that Mr. Tompkins admitted killing Lisa at 9:00 AM on March 24, 1983. There is certainly now a pretty good likelihood that a jury, learning of all of the evidence that conflicts with Mr. Turco‟s claim that the murder occurred at 9:00 AM, would have a reasonable doubt that it was true. The chances of the jury possessing a reasonable doubt only grows with knowledge of Mr. Turco‟s claim that the trial prosecutor told him to lie and that he willingly did so. The chances that the jury would not accept Mr. Turco‟s testimony would also grow with the knowledge that, even though he had pled guilty to a felony escape at the time he was placed in a cell with Mr. Tompkins, after his testimony assisted the State in obtaining a conviction the charge to which Mr. Turco had pled guilty was dropped.

Of course, Mr. Tompkins jury did hear Mr. Turco admit that he had a history of being a confidential informant for law enforcement ("Q. You have worked as a confidential informant in the jail system, have you not? A. Not in the jail system, sir, but in the prison system. Q. And you‟ve done that for a good period of time? A. I have, sir. Q. For the last four or five years? Yes, sir.") (R. 316-17). This testimony demonstrated that Mr. Turco not only had a motive to curry favor with the State, but was experienced at doing it. This new information would have provided fertile ground for challenges to his credibility and the reliability of his testimony. Certainly, an admission that he had been instructed to lie and had 48

willingly done so would have led to a withering attack on his credibility, a man who admits to willingly coming into a courtroom and lying for the State. The defense would have been able to make the obvious argument - when someone admits to a willingness to lie under oath, how one goes about deciding which sworn statements are true and which are false, and can you ever accept a sworn statement of such a person as true beyond a reasonable doubt. In such a context, the evidence that Lisa DeCarr was seen alive by a number of different individuals after 9:00 AM on March 24, 1983, the point in time that Mr. Turco‟s testified that she was killed, would preclude any reasonable juror from accepting his testimony as true.

There is little corroboration for Mr. Turco‟s claim that the murder occurred at 9:00 AM from the testimony of Kathy Stevens and Barbara DeCarr. This is because of the previously presented Brady material of their numerous, directly contradictory statements that Lisa was alive after Mr. Turco said she was dead. It is also because of the previously presented evidence that the trial prosecutor had failed to correct testimony that each gave which was false or misleading. But perhaps the most damning bit of information as to their credibility comes from Mr. Turco‟s most recent revelation that the trial prosecutor directed him to testify falsely. Such a statement can be used to suggest that a prosecutor, willing to tell 49

Mr. Turco to lie, would also be willing to direct Kathy Stevens and Barbara DeCarr to testify falsely. The taint of Mr. Turco‟s revelation bleeds throughout the State‟s case. It renders it all unreliable. Besides failing to analyze or consider the previously presented evidence and information showing numerous individuals reporting Lisa DeCarr to be alive after Mr. Turco said she was dead, this Court also failed to address the issue of whether Mr. Turco was a State agent when he was placed in a two-person cell with Mr. Tompkins right after he entered his guilty plea. Though this Court previously failed to find that circumstance, along with Mr. Turco‟s history of working as a confidential informant, sufficient to require a finding that Mr. Turco was a State agent and thus his testimony regarding any statements from Mr. Tompkins without counsel present inadmissible, the new revelation of his willingness to accept direction to lie under oath requires revisiting that Sixth Amendment issue.

Of course, the assistant state attorney in the course of the October 28th statement from Mr. Turco asked no questions concerning the circumstances under which Mr. Turco was placed in a two-man cell with Mr. Tompkins or why he was personally reporting to Mr. Tompkins‟ trial prosecutor who had not been the prosecutor on Mr. Turco‟s pending escape charge. In light of this Court‟s November 7th opinion, Mr. Tompkins will not be permitted to pursue the matter 50

and be given an opportunity to depose Mr. Turco and force him to answer defense counsel‟s questions under oath. Again, Mr. Tompkins is prejudiced by this Court‟s pre-emptive consideration of Mr. Tompkins possible claims and its determination that he is entitled to no relief and no opportunity to further investigate, prepare and present a Rule 3.851 motion challenging his conviction and sentence of death. CONCLUSION For the reasons stated herein, Mr. Tompkins respectfully requests that this Court grant him the opportunity to have counsel investigate, prepare, and present any constitutional challenges to his conviction and sentence of death which arise from Mr. Turco‟s October 28th sworn statement. This Court should vacate its ruling concluding that any error was harmless, and permit Mr. Tompkins to pursue Rule 3.851 relief. 51

CERTIFICATE OF FONT COMPLIANCE

The undersigned counsel hereby certifies that this brief complies with the font requirements of rule 9.210(a) (2), Fla. R. App. P. /s Martin McClain____________ MARTIN J. McCLAIN CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing motion has been furnished by U.S. Mail, postage prepaid, to Scott Browne, Assistant Attorney General, Department of Legal Affairs, 3507 Frontage Road, Suite 200, Tampa, FL 33607 on November 20, 2008. /s Martin McClain _________________________________ MARTIN J. McCLAIN Florida Bar No. 0754773 Special Assistant CCRC-South 141 N.E. 30th Street Wilton Manors, FL 33334 (305) 984-8344 NEAL DUPREE CCRC-South 101 N.E. Third Avenue Fort Lauderdale, FL 33301 Counsel for Mr. Tompkins