Thursday, 28 February 2008

Ailing death row inmate gets appeal hearing Thursday

Ailing death row inmate gets appeal hearing Thursday

Posted: 8:33 AM Feb 28, 2008
Last Updated: 8:35 AM Feb 28, 2008

A | A | A

NASHVILLE, Tenn. (AP) -- A hearing for ailing death row inmate Paul House will be held Thursday in federal court.

U.S. District Court Judge Harry Mattice Jr. will consider whether House will be released pending his appeal.

The U.S. Supreme Court ruled in 2006 the jury that convicted House of killing a Union County woman did not hear testimony that could have exonerated him.

House, 46, who has multiple sclerosis and is in a wheelchair, was sentenced to death after he was convicted of the 1985 murder of Carolyn Muncey, a young mother who lived near him in rural Luttrell, about 25 miles north of Knoxville.


Information from: The Tennessean,

Tuesday, 26 February 2008

Faulty bullet-test cases finding way to court

2008 National Law Journal Online
Page printed from:

Back to Article


Faulty bullet-test cases finding way to court

Vesna Jaksic / Staff reporter
February 25, 2008

Martin Mcclain, a defense lawyer in Florida, says his client is on death row in large part due to unreliable science.

Derrick Smith was found guilty of a 1983 homicide in a trial involving "bullet lead analysis," a method the FBI acknowledged in 2005 is invalid. Florida v. Smith, No. 83-02653-CFANO-I (Pinellas Co., Fla., Cir. Ct.).

His case is a prime example of the kind that a new task force wants reviewed in hopes of reversing any wrongdoing that may have resulted from the faulty test. [NLJ, 4-4-05.]

"We're passing that [case] to the FBI and asking them to look at it immediately," said Barry Scheck, one of the two coordinators of the Joint Comparative Bullet Lead Analysis Task Force, which was formed last November by the National Association of Criminal Defense Lawyers (NACDL) and the Innocence Network, a group of organizations providing services to those seeking to prove their innocence.

It looks like Smith will have plenty of company. Several years after the FBI admitted the bullet analysis test was invalid, cases in which the evidence played a central part are making their way through the courts. Also, FBI officials confirmed that they have identified cases involving the faulty testing from as far back as the 1970s.

Pro bono commitments

The task force is lining up pro bono commitments from several law firms to handle the cases. Those firms include New York's Fried, Frank, Harris, Shriver & Jacobson; Chicago's Winston & Strawn; and New York's Skadden, Arps, Slate, Meagher & Flom.

"Once these cases are identified, we're going to be working with law firms who will be providing pro bono services to review these cases," said Norman L. Reimer, NACDL's executive director.

David Koropp, a partner in the Chicago office of Winston & Strawn, said his firm is willing to offer as much of a pro bono commitment as necessary.

"It was something we thought we could bring the strength of a large law firm to," he said. "You're going to need a lot of people to review a lot of material."

Scheck expressed concern about identifying cases that date back as far as Smith's because they may lack documentation.

But special agent Ann Todd, a spokeswoman for the FBI laboratory, said the agency has already identified a few cases from the mid-1970s.

"FBI is in the process of identifying lab reports for all bullet lead examinations that resulted in matches and were used in successful prosecutions," she said, adding the agency will not have more detailed information until several months from now.

Last year, the FBI said it conducted bullet lead examinations in about 2,500 cases, but that results were introduced as trial evidence in less than 20% of them.

Compositional analysis of bullet lead or CABL — which is also called comparative bullet lead analysis or CBLA — tests the structure of a bullet used in a crime and matches it with others manufactured at the same time. The test raised major concerns in 2004, when the influential National Academy of Sciences cast doubt on it in a report. After its own review, the FBI announced in 2005 it would discontinue using such tests.

A 1990 shooting

McClain of Wilton Manors, Fla.'s McClain & McDermott, said he recently filed a motion in Smith's case for a rehearing and is awaiting a decision. Smith was convicted of murdering a Florida cab driver in 1990. In November, the court denied Smith's motion to vacate his conviction, but McClain is now arguing that Smith's conviction is constitutionally unreliable because of invalid evidence.

Glenn Martin, one of the prosecutors in the case, did not return calls seeking comment.

Some criminal defense lawyers said it is too early to say how cases involving bullet lead analysis will be handled.

"The problem is ultimately what the courts are going to do about it and if they favor finality over reliability, than ultimately it will do the defendants no good," said Suzanne Drouet, assistant public defender for the Maryland Innocence Project, a division of the state's Office of the Public Defender.

Drouet is representing James Kulbicki, a former police sergeant who was convicted of first-degree murder in 1995. Drouet said bullet lead analysis was used to connect Kulbicki's off-duty firearm to the murder weapon. Kulbicki v. Maryland, No. 93-CR-0530 (Baltimore Co., Md., Cir. Ct.). S. Ann Brobst, assistant state's attorney in Baltimore, did not return calls for comment.

An important case on the issue has already emerged in her state. In 2006, Maryland's high court, the Court of Appeals, reversed the murder conviction of Gemar Clemons and ordered a new trial as a result of invalid bullet lead analysis evidence. Clemons v. Maryland, No. 70, September term 2005 (Md.).

Paul Casteleiro of The Law Office of Paul Casteleiro in Hoboken, N.J., who is appealing another case involving bullet lead analysis, said that, while the tests have proven invalid, courts will likely tackle the issue on a case-by-case basis.

He is representing Michael S. Behn, who was convicted of a 1995 murder based in part on expert testimony on bullet lead analysis. State v. Behn, 375 N.J. Super. 409 (N.J. App. Div.).

Saturday, 23 February 2008

The ruling in 2nd DCA - Michael Mordenti








Appellant, )


v. ) Case No. 2D05-4407




Appellee. )

_____________________________________ )

Opinion filed February 22, 2008.

Appeal from the Circuit Court for Hillsborough

County; Barbara Fleischer, Judge.

James Marion Moorman, Public Defender,

and Terri L. Backhus, Special Assistant Public

Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee,

and Richard M. Fishkin, Assistant Attorney

General, Tampa, for Appellee.

HARRIS, CHARLES M., Associate Senior


The issue in this case is whether the trial court erred in excluding

statements made by the alleged coconspirator, deceased at the time of trial, which, if

believed by the jury, would exonerate Michael Mordenti. We hold that the trial court did

err and reverse.

- 2 -

Mordenti was first convicted of first-degree murder in 1991, at which time

he received the death penalty. Mordenti's conviction and sentence was affirmed by the

Florida Supreme Court in 1994. However, on review of a denied motion for

postconviction relief, that court reversed the conviction and sentence because of a

Brady1 violation. Mordenti v. State, 894 So. 2d 161 (Fla. 2004). A second trial resulted

in a mistrial (hung jury). Mordenti was tried once again, resulting in a second conviction

and this appeal.

Larry Royston, the victim's husband, was immediately the prime suspect in

the case. Because he had an alibi (he was with the victim's mother at the time of the

murder), law enforcement believed a hired killer was involved. Through Royston's

telephone records, the police were led to Gail Mordenti Milligan. When she was called

in for questioning, Mrs. Milligan demanded immunity for her cooperation, and apparently

without any additional investigation, she received it. She then told the investigators that

indeed she was the go-between in setting up this murder-for-hire. Royston offered

$10,000 for the murder of his wife, and Mrs. Milligan set out to find a contract killer.

Mrs. Milligan told authorities that her former husband, Michael Mordenti, after initially

refusing, had agreed to do the murder. This was her testimony at trial, and it was the

only material evidence against Mordenti.

The Florida Supreme Court in reversing Mordenti's original conviction

noted how critical Mrs. Milligan's testimony was in obtaining the conviction:2

1 Brady v. Maryland, 373 U.S. 83 (1963).

2 Had Mrs. Milligan testified that her boyfriend had committed the murder, there

would have been some corroboration because independent witnesses stated that two

people were seen in the vicinity of the murder at or near the appropriate time and that

- 3 -

Mordenti was convicted primarily on the testimony of

one woman, Gail Mordenti Milligan. No physical evidence

was produced linking Mordenti to the murder, and Gail was

the only witness who was able to place Mordenti at the

scene of the murder. There was no money trail, no

eyewitnesses, no confession, no murder weapon, no blood,

no footprints, and no DNA evidence linking Mordenti to the

murder. The prosecution's entire case relied solely on Gail's

testimony, and the jury crediting that testimony.

894 So. 2d at 168.

The testimony in the case indicates that Royston never met Mordenti.

This is important because when Royston first saw Mordenti in court, he blurted out to

his attorney in a crowded courtroom, "That's not the guy" or "That's not him."3 This

statement, as well as others, was not discovered until after Royston committed suicide

shortly before his trial.4 The prosecutors of Mordenti convinced a judge that Royston's

attorney-client privilege ended with his death and obtained an ex parte order requiring

Royston's attorney, Trevena, to respond to the State's questions. Although the above

quoted courtroom statement was not specifically mentioned, the Florida Supreme Court

discussed the importance of Trevena's testimony in its decision overturning Mordenti's


After Royston committed suicide, the State obtained an ex parte order

signed by the trial judge stating that the attorney-client privilege did not

apply and ordering Trevena to submit to an interview with the State. . . .

while neither met the description of Mordenti, one did meet the description of Mrs.

Milligan's boyfriend.

3 Royston's attorney testified on proffer that Royston had been "adamant that

[Mordenti] had absolutely nothing to do with [the murder]."

4 Suppose Mordenti had been executed following his first conviction and

sentence before this information was revealed by the State? What confidence would

the public have in the criminal justice system?

- 4 -

During the evidentiary hearing [on the motion for

postconviction relief] the trial court ruled that Trevena's

testimony with regard to the information he received from his

deceased client in preparation for his murder trial was

inadmissible hearsay. However, the trial court permitted

postconviction counsel to proffer Trevena's testimony. The

proffer indicated that Trevena conveyed to the prosecution

that Larry Royston believed that "Gail Mordenti had

orchestrated [the murder]." Trevena informed the State that

"Mr. Royston had indicated to [him] that [Royston] did have a

sexual affair with Gail Mordenti, and that she wanted to

continue that affair." Trevena further informed the State that

Gail "wanted Mr. Royston freed up so that she could share . . .

in his assets." Finally, Trevena communicated to the State

that Royston maintained that the thirteen-minute cellular

phone call on June 7, 1989, the day of the murder, from

Royston to Mordenti was "innocent in nature and that it was

relating to some type of a boat or motor vehicle," and "[t]here

was no discussion concerning any homicide or violence, . . . it

was related to business and . . . the call had been set up by


Id. at 173 (some alteration in original).

Even though the credibility of Mrs. Milligan was the central issue of this

case, the trial court refused to allow Trevena's testimony on the basis of hearsay and

privilege. There was simply no privilege remaining at the time of the third trial. If the

privilege ever existed (the statement was blurted out in a crowded courtroom for anyone

to hear), it was waived when the State inappropriately required Trevena to respond to

its questions. The statement then became public information. The Florida Supreme

Court made this abundantly clear in its decision. The court did not treat the information

as privileged and discussed its potential admissibility. That has become the law of the

case as it relates to privilege.

With regard to the application of the hearsay rule, the United States

Supreme Court has stated that "where constitutional rights directly affecting the

- 5 -

ascertainment of guilt are implicated, the hearsay rule may not be applied

mechanistically to defeat the ends of justice." Chambers v. Mississippi, 410 U.S. 284,

302 (1973). The uncorroborated statement of a coconspirator raises such concerns.

The one who took the money, picked the murderer, and was given immunity must be

subject to the closest scrutiny during cross-examination. Mrs. Milligan was not. The

Florida Supreme Court discussed the potential problem of hearsay in its decision and

suggested it should be available for impeachment of Mrs. Milligan who, for example,

had denied a sexual relationship with Royston. Royston's statement also meets the

spontaneous statement exception as well as the statement against interest exception to

the hearsay rule.

It may well be that the jury will not believe Mr. Trevena or may put some

other construction on Mr. Royston's statements. But the jury should have that


Reversed and remanded for a new trial.

DAVIS, J., Concurs with opinion.

STRINGER, J., Dissents with opinion.

DAVIS, J., Concurs specially with opinion.

I concur with Judge Harris' conclusion that the trial court committed

reversible error in determining that the testimony of the attorney who represented Larry

Royston prior to his death was inadmissible in the third Mordenti trial. However, I write

to explain why I believe that the attorney-client privilege does not apply in this case.

- 6 -

The issue presented in this case is whether the privilege should now

preclude the use of Royston's attorney's testimony given the unique procedural posture

presented here. That is, the issue of whether the trial court was correct when it

originally determined that the privilege did not apply is not germane to our current


The purpose of the privilege is to bar the disclosure of information; it is not

a test of admissibility. See § 90.502(2), Fla. Stat. (2006) ("A client has a privilege to

refuse to disclose, and to prevent any other person from disclosing, the contents of

confidential communications . . . ."); see also E. Colonial Refuse Serv., Inc. v. Velocci,

416 So. 2d 1276, 1277-78 (Fla. 5th DCA 1982) (stating that although testimony may be

relevant and admissible, the information sought "may be privileged and therefore

beyond permissible discovery"). Once it is determined that a privilege does not prohibit

the disclosure of information, the question of whether it is admissible is determined by

the rules of evidence.

In the instant case, after Royston's death but prior to Mordenti's first trial,

the State obtained a ruling from the trial court that Royston's attorney could not assert

the privilege to keep from disclosing the conversations he had with this client.6

Royston's attorney never appealed this ruling, but rather complied by answering the

5 I recognize that section 90.508, Florida Statutes (2006), renders inadmissible

those disclosures that are erroneously compelled by the court; however, this section

does not apply to these facts because the statements here are not sought to be

admitted against the holder of the privilege, Larry Royston.

6 Because the State was the party that sought the ruling originally, an argument

can be made that the State should now be collaterally estopped from arguing that the

privilege should bar the use of the testimony at the retrial. However, the State does not

have standing to assert the privilege. See § 90.502(3).

- 7 -

State's questions regarding the information shared with him by his client prior to the

client's death.

After discovering that the State had obtained this information but had

failed to disclose it to his counsel prior to trial, Mordenti sought postconviction relief

alleging a Brady7 violation. In reversing the postconviction court's denial of relief, the

Florida Supreme Court reviewed the information disclosed by the attorney pursuant to

the trial court's determination that the privilege did not apply and found that the State

had, in fact, committed a Brady violation by not providing the information to Mordenti's

counsel. Mordenti v. State, 894 So. 2d 161, 174 (Fla. 2004). The court granted

Mordenti a new trial, impliedly concluding that the defense should be provided the same

information that the State had obtained from Royston's attorney. Id. at 177.

Despite the fact that Royston's attorney never sought appellate review of

the trial court's determination of the inapplicability of the privilege, the Florida Supreme

Court, by ordering the further disclosure of the attorney-client conversation, implicitly

affirmed the trial court's determination that the privilege did not apply. Although the

privilege issue was not before the supreme court in this postconviction proceeding, the

practical effect of the court's order directing that the information again be disclosed to

Mordenti's counsel was that the conversations between Royston and his attorney were

no longer protected by the attorney-client privilege. Thus, as Mordenti argues on

appeal, this became the law of the case, and the trial court erred in determining that the

7 Brady v. Maryland, 373 U.S. 83 (1963).

- 8 -

testimony was inadmissible at Mordenti's third trial because of the privilege.8 See Smith

v. City of Fort Myers, 944 So. 2d 1092, 1094 (Fla. 2d DCA 2006) (" 'The doctrine of the

law of the case requires that questions of law actually decided on appeal must govern

the case in the same court and the trial court, through all subsequent stages of the

proceedings.' " (quoting Fla. Dep't of Transp. v. Juliano, 801 So. 2d 101, 105 (Fla.


Having determined that the attorney-client privilege was not a proper basis

to exclude the attorney's testimony, I would further agree with Judge Harris' opinion in

concluding that the three portions of testimony at issue were admissible. The

spontaneous statement made by Royston to his attorney in open court that Mordenti

was "not the guy" would meet the statement against interest exception to the hearsay

rule. See § 90.804(2)(c). The other two statements would be admissible as

impeachment testimony. See § 90.608. I would therefore concur with Judge Harris that

the trial court erred in excluding the testimony and agree that the case should be

remanded for a new trial.

STRINGER, J., Dissents with opinion.

I respectfully dissent. I would affirm Mordenti's conviction because

Mordenti has not established any reversible error from the trial court's determination that

Trevena's testimony was protected by the attorney-client privilege. Let me begin by

stating that while the statements at issue would certainly assist in Mordenti's defense,

8 As mentioned in Judge Harris' opinion, it is not clear that the privilege was the

actual basis for the trial court's ruling. In fact, upon remand, the trial court entered

another order directing the attorney to answer the questions of Mordenti's counsel.

- 9 -

those statements do not amount to a "smoking gun" that would exonerate Mordenti. In

order to understand the importance of the statements to Mordenti's defense, a better

explanation of the background facts is required. The facts adduced at Mordenti's third

trial have not changed substantially from those reported in Mordenti's first appeal by the

Florida Supreme Court:

This case involves the murder of Thelma Royston.

The victim's husband, Larry Royston (Royston), allegedly

hired Mordenti to commit the murder. Royston and Mordenti

were charged with the victim's murder after Royston's

cellular phone records led detectives to Mordenti's former

wife, Gail Mordenti,[9] who subsequently confessed that she

had acted as the contact person between Mordenti and

Royston. After Royston and Mordenti were charged,

Royston committed suicide. Consequently, his version of

the events at issue was not available. At trial, Mordenti's

defense was that he was some place else when the murder


Testimony at trial revealed the following details

regarding the murder. The victim, Thelma Royston, lived

with her mother and her husband. On the night of the

murder, Royston told the victim that the lights were off in the

barn. Because the Roystons' horse business required the

barn lights to be left on until 10:00 or 11:00 each night, the

victim and her mother went outside to turn on the lights.

When they went outside, they noticed an unidentified man

off in the distance. The victim went to talk to him and called

back to her mother that the man was there to discuss a

horse Royston had for sale. The victim's mother went back

inside to tell Royston that the man was there, but when her

dog began barking she went back out to investigate. Upon

doing so, she discovered the victim's body in the barn. The

victim had suffered multiple gunshot and stab wounds.

Because it was night and the man had been so far off in the

distance, the victim's mother was unable to furnish a

description of him to the police.

9 Gail Mordenti married sometime after the events at issue and became Gail


- 10 -

Because the victim suffered multiple gunshot and

stab wounds, the medical examiner was unable to

determine from which wounds the victim had died or

whether she had died instantaneously. However, there

were no defensive wounds and no indication that anything

had been taken or that the victim had been sexually


Additional testimony revealed that the victim and

Royston had been contemplating divorce, but that Royston

thought the victim was asking for too much money. A

former girlfriend of Royston's testified that Royston had

asked her to kill his wife by either shooting or stabbing her

to make it look like a burglary, but the former girlfriend had

refused. Mordenti's former wife, Gail Mordenti, testified that

Royston asked her if she knew of anyone who would "get rid

of his wife" for $10,000. Gail Mordenti stated that she

subsequently asked Mordenti if he knew of anyone who

would kill Royston's wife and he responded: "Oh, hell, for

that kind of money, I'll probably do it myself." Gail Mordenti

explained that she acted as the middle person between

Royston and Mordenti by conveying information about the

best time and place for the murder and by supplying a

photograph of the victim and a map of the ranch.

Gail Mordenti further testified that, when she first

approached Mordenti about murdering the victim, he

informed her that it would be impossible to commit the

murder as Royston wanted and that he would not do it.

However, Royston continued to insist to Gail Mordenti that

he wanted the murder committed. Gail Mordenti finally

placed Royston directly in touch with Mordenti. Royston's

cellular phone records reflected that he made a thirteenminute

telephone call to Mordenti's number on the day of

the murder. After the murder, Gail Mordenti delivered

payments totaling $17,000 from Royston to Mordenti.

According to her, the amount had risen from $10,000 to

$17,000 because Mordenti had to get rid of a car. Mordenti

gave Gail Mordenti between $5,000 and $6,000 of the

$17,000 over time to help her pay her bills. Additionally,

Gail Mordenti testified that Mordenti described the murder to

her, stating that the victim "put up quite a fight" and that he

"shot her in the head with a .22." He also told Gail Mordenti

that the victim had a lot of jewelry on and that he felt really

bad that he couldn't take it. She also testified that Mordenti

had a number of guns that he kept as "throw away" pieces

- 11 -

and that she knew he was associated with some "shady"

people. (A cellmate of Mordenti's also testified that

Mordenti told him he was "in the mob.") For her testimony,

Gail Mordenti was offered complete immunity.

No physical evidence was produced linking Mordenti

to the crime, and Gail Mordenti was the only witness who

was able to place him at the scene of the murder. However,

her testimony was consistent with what police knew about

the murder and some of her testimony matched information

about the murder that had not been made public.

In his defense, Mordenti produced three witnesses

who stated that he had attended an automobile auction on

the night of the murder. Mordenti was a used car dealer

and frequently attended auctions where he purchased cars

for resale. The prosecution, however, was able to point to a

number of inconsistencies in the witnesses' testimony.

Additionally, one of the three witnesses was one of

Mordenti's girlfriends, and the other two witnesses had

testified only after being contacted by the girlfriend over a

year after the murder and after being reminded by the

girlfriend that the night of the murder was the same night

Mordenti had attended the auction.

Mordenti v. State, 630 So. 2d 1080, 1082-83 (Fla. 1994) (alteration in original). In the

appeal of the denial of Mordenti's motion for postconviction relief, the supreme court set

forth the statements Royston made to attorney Trevena during the initial proffer as


The proffer indicated that Trevena conveyed to the

prosecution that Larry Royston believed that "Gail Mordenti

had orchestrated [the murder]." Trevena informed the State

that "Mr. Royston had indicated to [him] that [Royston] did

have a sexual affair with Gail Mordenti, and that she wanted

to continue that affair." Trevena further informed the State

that Gail "wanted Mr. Royston freed up so that she could

share . . . in his assets." Finally, Trevena communicated to

the State that Royston maintained that the thirteen-minute

cellular phone call on June 7, 1989, the day of the murder,

from Royston to Mordenti was "innocent in nature and that it

was relating to some type of a boat or motor vehicle," and

"[t]here was no discussion concerning any homicide or

- 12 -

violence, . . . it was related to business and . . . the call had

been set up by Gail." The defense was not privy to any of

this information.

Mordenti v. State, 894 So. 2d 161, 173 (Fla. 2004). In his proffer before the court at his

third trial, Trevena also explained that Royston did not admit any culpability in the

victim's death and insisted that Mordenti also had nothing to do with it. Trevena also

acknowledged that Royston blurted out to him in court, "That's not the guy," when

Royston saw Mordenti. While Trevena believed this statement may have been an

admission that Royston was involved in the offense, Trevena and Royston did not

discuss the matter further.

As I previously stated, Royston's statements would certainly assist in

Mordenti's defense, but I do not believe that the statements are the equivalent of a

"smoking gun" that will exonerate Mordenti. As the trial court below noted, "This is a

defendant who's talking to his defense attorney making what are clearly obviously selfserving

statements." Nothing Royston said to his attorney proves that Gail Milligan was

lying when she testified that Royston hired Mordenti to murder the victim.

Turning to the merits, the majority appears to hold that the State waived

the attorney-client privilege when it obtained an ex parte order ruling that the privilege

was not applicable to Royston's statements and ordering Trevena to participate in an

interview with the State in 1991. However, it was not the State who sought to assert the

privilege at Mordenti's third trial in 2005; it was attorney Trevena. Furthermore, the

State did not have the authority to waive or assert the attorney-client privilege. See §

90.502(3), Fla. Stat. (2005); Restatement (Third) of the Law Governing Lawyers § 86


- 13 -

Moreover, I respectfully disagree with the suggestion in both the majority

and the concurring opinion that the trial court's 1991 ex parte ruling that the testimony at

issue was not protected by the attorney-client privilege became law of the case when

the supreme court reversed the denial of Mordenti's motion for postconviction relief in

2004. The issue before the supreme court was whether the postconviction court erred

in denying relief on Mordenti's claim that the State committed a Brady violation by failing

to disclose the statements Trevena made at the interview that followed the ex parte

order at issue. See Mordenti, 894 So. 2d at 173. In order to analyze this issue, the

supreme court determined (1) that Trevena's statements in the interview were favorable,

(2) that the State suppressed the evidence, and (3) that the State's failure to disclose

the evidence prejudiced Mordenti. Id. at 173-74. The supreme court did not have

before it the issue of whether Royston's statements to Trevena were protected by

attorney-client privilege. The doctrine of law of the case applies only to those issues "

'actually decided on appeal.' " State v. McBride, 848 So. 2d 287, 289 (Fla. 2003)

(quoting Fla. Dep't of Transp. v. Juliano, 801 So. 2d 101, 105 (Fla. 2001) (emphasis


I reject the concurring opinion's suggestion that the supreme court in

Mordenti implicitly affirmed the trial court's ex parte ruling that the attorney-client

privilege did not apply. It was not necessary for the supreme court to rule on the

privilege issue for its determination of whether the State committed a Brady violation in

failing to disclose the statements. Furthermore, I do not believe that Trevena had a duty

to seek review of the trial court's ex parte order in order to preserve his ability to claim

the privilege in a separate judicial proceeding. Without appellate review of the trial

- 14 -

court's order, the trial court's order cannot become the law of the case. See McBride,

848 So. 2d at 290.

Nor do I believe that publication of Royston's privileged statements by the

Florida Supreme Court constitutes a sort of abrogation of the privilege. It is true that the

cat is out of the bag, so to speak, and the content of Royston's confidential statements

to attorney Trevena has been made public. However, the fact that the information is

public does not mean that the information is discoverable for trial. Because the privilege

has not been waived by anyone authorized to do so, the fact that Trevena's proffer was

subsequently published should not abrogate the privilege.

Finally, I reject the majority's suggestion that Royston may have waived

the attorney-client privilege by communicating to his attorney via courtroom "outburst."

The majority notes that Royston "blurted out" the communication in a crowded

courtroom where he could have been overheard. However, this issue was not raised by

Mordenti on appeal, and we are precluded from addressing it for that reason. See

Johnson v. State, 660 So. 2d 637, 645 (Fla. 1995); Grimsley v. State, 939 So. 2d 123,

125 (Fla. 2d DCA 2006). Furthermore, there is no evidence that the statement was

heard by anyone other than attorney Trevena.

My determination that Mordenti has not established any error in excluding

the statements at issue as privileged renders moot a determination of whether the

statements constituted inadmissible hearsay. However, I do not share the majority's

concern with the application of the hearsay rule "to defeat the ends of justice" in this

case. In fact, the admission of a codefendant's self-serving hearsay statements to his

attorney, which were made to assist a defense that was seeking to avoid the death

- 15 -

penalty and which were not subject to cross-examination, gives me greater concern for

the ends of justice.

Accordingly, I conclude that Mordenti has not established any reversible

error from the trial court's determination that Trevena's testimony was protected by the

attorney-client privilege. Therefore, I would affirm Mordenti's conviction.

2nd conviction overturned - Michael Mordenti

2nd conviction overturned

An appeals court finds statements were improperly excluded.

By Colleen Jenkins, Times Staff Writer
Published February 23, 2008

TAMPA - Before he committed suicide, Larry Royston told his attorney that prosecutors had charged the wrong man with killing Royston's wife in a 1989 murder-for-hire plot.

But three separate juries never heard his claim.

Twice, St. Petersburg used car dealer Michael Mordenti was convicted of taking $17,000 from Royston to carry out the hit.

The Florida Supreme Court overturned the first conviction, saving Mordenti from death row. A second trial ended with a hung jury, and a third trial brought a life prison sentence with the possibility of parole after 25 years.

On Friday, the testimony jurors never heard won Mordenti his fourth shot at redemption.

In a 2-1 decision, an appellate panel overturned his conviction, saying Royston's statements to attorney John Trevena should have been admitted at trial and would exonerate Mordenti if believed by a jury.

"It may well be that the jury will not believe Mr. Trevena or may put some other construction on Mr. Royston's statements," wrote 2nd District Court of Appeal Associate Senior Judge Charles M. Harris. "But the jury should have that opportunity."

Judge Thomas E. Stringer dissented. He acknowledged that the statements would help Mordenti but said they did not amount to a "smoking gun."

Attorney Marty McClain, who represented Mordenti during his second and third trials, found that stance hard to believe.

"I think that this is just powerful stuff," he said. "I don't know how much more of a smoking gun you need."

Prosecutors will review their options in light of the ruling, said Assistant State Attorney Pam Bondi, who helped convict Mordenti in 2005.

Now 66, he has been imprisoned since his 1991 conviction.

Prosecutors said he shot and stabbed 54-year-old Thelma Royston in her Odessa horse barn June 7, 1989. They said her husband paid Mordenti to do it.

They based their case against Mordenti on the testimony of his ex-wife, Gail Mordenti Milligan. The Largo woman told authorities that she acted as the go-between for the contract killing; she received immunity in exchange for naming Mordenti.

No physical evidence, no money trail, no eyewitnesses and no confession tied Mordenti to the crime. Because the prosecution's case against Mordenti relied solely on his ex-wife's account of events, her credibility was a central issue in the case, the appellate judges said.

"The one who took the money, picked the murderer and was given immunity must be subject to the closest scrutiny during cross-examination," the opinion stated. "Mrs. Milligan was not."

The appellate judges' concern: Jurors never heard statements that could raise questions about Milligan's truthfulness.

Trevena said his client claimed Milligan orchestrated the murder because she was having an affair with Royston and wanted him "freed up so that she could share ... in his assets."

When Royston first saw Mordenti in court, he had blurted out, "That's not the guy," to his attorney.

Royston killed himself before his own trial. Milligan denied any romantic link.

Trevena also said Royston maintained that a 13-minute cell phone call between Royston and Mordenti a few hours before the murder was set up by Milligan and was "innocent in nature and that it was relating to some type of a boat or motor vehicle." He said there was no discussion concerninghomicide or violence.

In an unusual move, prosecutors persuaded a judge to allow them to interview Trevena in private before Mordenti's first trial. They did not share the attorney's recounting of his client's statements with the defense - an omission that helped get Mordenti's death sentence reversed.

Hillsborough Circuit Judge Barbara Fleischer considered the testimony multiple times during the two subsequent trials, and prosecutors argued strenuously to keep it out. Each time, the judge refused Trevena's testimony on the basis that it was hearsay and subject to attorney-client privilege.

"If I'm wrong," Fleischer said in May 2005, "the Supreme Court will tell me."

Instead, she heard from the 2nd District Court of Appeal. The ruling Friday did not surprise Trevena, who will now testify should Mordenti's case get retried.

"I just scratched my head in disbelief when Fleischer said she wouldn't allow it," Trevena said. "It's just another case where an innocent guy has rotted in prison for 20 years."

Colleen Jenkins can be reached at or (813) 226-3337.



On June 7, 1989, at around 9:00 p.m., Thelma Royston was murdered in a horse barn located on the property she owned with husband Larry Royston. At the time of murder, Mr. Royston was inside the family residence with Thelma’s mother. Because of marital difficulties, law enforcement immediately suspected that Larry Royston had perhaps arranged the murder. However, the State could not put a case against Mr. Royston together until March of 1990. At that time, word on the street was that Gail Mordenti had been looking to hire someone to kill Ms. Royston. This word reignited the investigation into the murder. In late February and early March, law enforcement interviewed a number of persons connected with Gail Mordenti.

On March 8, 1990, law enforcement swooped down on Gail Mordenti’s residence to execute a State Attorney subpoena requiring her appearance before an assistant state attorney to give a sworn statement. When they arrived at 7:00 a.m., they expected to find Gail and her live-in boyfriend, Michael Milligan. However, Gail was alone; she reported that Michael Milligan had spent the night elsewhere. She later testified that when she was picked up by Detectives Baker and Kroll, on March 8, 1990, "they said they had the power - - that they could grant me immunity if I would tell them everything that I knew, and I said that if they could do that, then I would tell them everything that I knew about it, and they said fine. And then nothing else was said until we got here." At the State Attorney’s Office, she was given immunity. In return, she gave a sworn statement that Larry Royston asked her to find someone to kill his wife and that her ex-husband, Michael Mordenti, committed the murder.

Pursuant to her immunity, Gail Mordenti was not charged and remained free. Shortly after she gave her statement, she married Michael Milligan, on April 20, 1990.

Both Larry Royston and Michael Mordenti were arrested on murder charges. They were both released on bond pending trial. Mr. Royston’s trial was scheduled to go first in March of 1991. However on the eve of trial, Mr. Royston committed suicide.

Mr. Mordenti’s case then proceeded to trial in July of 1991. Mr. Mordenti was convicted and sentenced to death. Even though Mr. Mordenti presented an alibi for the time of the murder, the jury rejected the alibi based upon the testimony of Gail Mordenti Milligan.

The Florida Supreme Court acknowledged on direct appeal that "[n]o physical evidence was produced linking Mordenti to the crime, and Gail Mordenti [Milligan] was the only witness who was able to place him at the scene of the murder." Mordenti v. State, 630 So.2d 1080, 1083 (Fla. 1994). Thus, the State’s case rested entirely upon the credibility of Gail Mordenti Milligan, who testified that "as long as I told the truth, that I had total immunity." Gail elaborated in cross-examination at trial that "as long as I told the truth, the whole truth, that I had immunity."

At an evidentiary hearing in the fall of 2001, new evidence surfaced which established that Gail Mordenti Milligan had not told the whole truth at trial. At trial, Gail testified Larry Royston came to her house for lunch "it was either late February, or the beginning of March [of 1989]." At that luncheon, Larry Royston asked Gail if she knew anyone who could kill his wife. When Gail testified at the evidentiary hearing on November of 2001, she acknowledged that her date-book established that the luncheon with Larry Royston was not in February or March of 1989, but was on April 11, 1989. Gail testified at the evidentiary hearing when confronted with her trial testimony about the lunch with Larry: "If my book says that it was April 11th, then I was wrong." Gail also acknowledged that on April 11th, she had the first conversation she had with Larry Royston about his desire to find someone to kill Thelma. Accordingly, prior to April 11, 1989, she had undertaken no actions in search of a killer. Thus, she admitted her trial testimony was not the truth, the whole truth.

Interestingly, Gail Mordenti Milligan admitted at the evidentiary hearing that on April 12, 1989, the day after Larry Royston came to a luncheon at her house at her invitation, she gave a statement to law enforcement regarding an investigation into an allegation that she had stolen $200,000. According to her testimony at the evidentiary hearing, she had been notified prior to April 12th that the police wanted to talk to her about $200,000 that was missing from her prior place of business. Because defense counsel was not provided access to the date-book, he did not know to inquire about the proximity of the luncheon to the police questioning of Gail Mordenti Milligan regarding the missing money. However, the State did have the date book and did not share it with the defense.

At trial, Gail testified that prior to contacting Michael Mordenti about killing Thelma Royston, she had unsuccessfully sought to recruit three other individuals to do the murder. After some time had passed and she was unsuccessful in recruiting a killer, Gail testified that she turned to Michael Mordenti within a couple of weeks of the luncheon with Larry "which took place sometime, I think, in February, or the beginning of March." According to Gail’s trial testimony, Michael Mordenti wanted to scope out the Royston place in the daytime. Gail testified that later Michael Mordenti wanted to take a second drive out to the Royston’s place, this time at night. According to Gail’s trial testimony, Michael Mordenti went to Gail’s house in the middle of the night. Gail and Michael Mordenti then went and checked into a motel near the Royston place. In regard to this second trip (maybe a month after the first trip) that she and Michael Mordenti made to the Royston place, Gail testified that it occurred before Michael Milligan moved in to her house "either the end of March or beginning of April." Thus, the date-book reveals that Gail’s trial testimony was completely wrong about the timing sequence and provides a basis for arguing that Michael Milligan, her live-in boyfriend at the time, was the more likely accomplice on a late night trip in late April or May to scope out the Royston place.

Since the luncheon was not until April 11th, Michael Milligan had already moved in with her, thus it is unlikely that Michael Mordenti, as her trial testimony conceded, arrived at her house in the middle of the night to rouse her to go to the Royston place after Milligan had moved in. Since Gail was facing a mountain of debt and lawsuits as she revealed in 2001, it is certainly plausible that she turned to the man with whom she was living and going to marry, Michael Milligan for help in killing Royston’s wife. Interestingly, Milligan’s description matches that of one of the men seen near the Royston place on the night of the murder shortly before the murder.

Gail’s entry for June 7, 1989, the day Thelma Royston was murder included, "Call on ticket for Michael." And later, "Make calls again to Bus Co." In 2001, Gail Mordenti Milligan has testified that the entry "Call on ticket for Michael" refers to Michael Milligan, the man she was living with and would marry in April of 1990. She testified that this was in reference to a "speeding ticket." When asked how she knew that, she answered "[b]ecause he got a lot of them." She had no explanation for the entry "Make calls again to Bus Co."

Meanwhile, the trial prosecutor, Karen Cox, identified her handwritten notes documenting a 2/10/91 interview of Michael Milligan.. The notes reveal that Milligan worked for Michael Flynn of Flynn Motors as a transportation representative since 1985, that he met Gail in 1988 and starting seeing her in March 1989. The notes further indicated, "6/89- mordenti called him & had car picked up w was used in bank robbery from New Mexico." Thus, this note reveals that Michael Milligan told the prosecutor that he went to New Mexico in June of 1989, the month of Thelma Royston’s murder. At trial, Gail Mordenti Milligan indicated that the car used in the murder was left on the Mexican border. In his undisclosed statement to Karen Cox, Michael Milligan placed himself in New Mexico, relatively near the Mexico border, at the time that Gail says the car was being left at the Mexican border.

At trial, Gail testified that Michael Mordenti had given her a gun. "Michael gave it back to me after the murder, and I had it at the house." (R. 662). Gail gave the gun to the police in March of 1990, and evidence was introduced at trial regarding the FBI’s metallurgical examination of the bullets that were in the gun, finding them metallurgical similar to the bullets used in the homicide. The prosecution argued that this linked the bullets to the murder. On cross-examination at trial, Gail testified that Michael Mordenti gave her the gun while she worked at Carlisle which was "from October of ‘89 until April of ‘90, and it had to have been during that time." Thus, making her receipt of the gun after Ms. Royston’s homicide.

Previously in her March 8, 1990, sworn statement, Gail indicated that she received the gun "January, February, March [ ] 89." Gail had explained on March 8, 1990, "yeah, it was kind of a long time ago." This sworn statement placed the receipt of the gun before Thelma Royston’s murder. When asked at trial in cross-examination about this prior statement, Gail testified "I don’t remember making [that statement], no. I can read it, but I don’t remember making it."

In 2001, Gail recanted her trial testimony and acknowledged that she did not know when she received the gun, before or after the murder.

By the time of the 2001 hearing, both the lead prosecutor, Karen Cox, and the lead defense attorney, John Atti, have been suspended from the practicing of law by the Florida Bar.

Michael Mordenti - Florida

The 2nd DCA granted Michael Mordenti a new trial

This is an innocence case

Sunday, 10 February 2008

DNA speaks

Frank Lee Smith

DNA speaks

The state Crime Lab needs to share the truth in old evidence

February 10, 2008

If new DNA evidence turns up that could shed light on the innocence — or guilt, of course — of an individual convicted of a crime, that person should be told. He should have a right to press for the evidence to be tested, using modern methods that can reveal the truth locked within. And he should be informed of the results of those tests.

Seems obvious, doesn't it? Simple justice. Enough cases have already demonstrated that Virginia has convicted, imprisoned and even come close to executing innocent people — until retesting of DNA evidence revealed the truth.

Somehow that obvious principle has been ignored in the massive hunt to unearth and reconsider biological evidence at the state crime lab. The approach must change. The people whose guilt or innocence is at stake must be informed.

Gov. Mark Warner ordered a thorough review of old files at the crime lab in 2005, in response to the discovery, based on new DNA testing of material from such files, that three men had been wrongly convicted of rape and imprisoned. After a pilot project uncovered two more cases, a decision was made to widen the search — to half a million files — for evidence that might reveal the truth when subjected to testing techniques that weren't available at the time of the original investigation and trial.

The project proved larger than expected. Even so, it has moved too slowly. More than two years later, fewer than 200 cases have been sent for new testing.

And a problem has become apparent: The people convicted of crimes are not notified when evidence is unearthed. They should be.

Nor do they have a say on whether that evidence is tested. They should.

In some cases — when someone was convicted of rape, murder or other major crime against a person — testing is automatic. But in other cases, involving crimes that aren't considered top priorities, it's set aside. State law gives defendants in such cases the right to ask for retesting of DNA evidence, but how can they ask if they aren't notified that evidence exists?

More troubling is the policy the Forensic Science Board has followed when test results come back. The new information is sent only to the office of the prosecutor who originally handled the case.

Of course, it makes sense to consult and share results with prosecutors, and for them to review the results with police. But the new information should also be shared with defendants.

Our judicial system is based on a balance: the prosecution on one side, the defense on the other, and the faith that justice will result from their fair interplay. We wouldn't tolerate a system that allowed the prosecution and police to decide who is guilty, without the counterbalance of defense. And we shouldn't tolerate this gap in that principle.

A state Forensic Science Board member, Alexandria's commonwealth attorney, offered assurance that prosecutors would do the right thing if evidence of innocence turns up. That's not good enough.

We have too many examples of men who spent years in prison because prosecutors worked hard to convict them of crimes they did not commit. Honest errors happen, and so does prosecutorial misconduct. And who has the greatest interest in notdisclosing the fact that people were wrongly prosecuted and convicted?

It's plainly unfair to leave decisions about potentially exonerating evidence solely up to prosecutors.

The Forensic Science Board points out the difficulties of informing convicted individuals. Like the fact that they have to be found.

True enough. And while the crime lab may not have staff or expertise, the State Police do.

The board has expressed a concern that releasing results might raise red flags about law enforcement. Yes, indeed. But that's not persuasive. The reason for this entire exercise is the human fallibility of law enforcement, of witnesses, of courts — set against the relative infallibility of DNA evidence.

Some defendants won't press for testing. Maybe they know they're guilty, maybe they've put the whole thing behind them and made a new life.

But some will want testing, and will want to have their cases reviewed if the results go in their favor. The system must allow for that.

And, to avoid needless expense and wasted time, the system must also include a simple means by which an impartial party — not the prosecutor — can weed out gratuitous appeals.

The results of testing should also be made public. Virginians have a right — and an obligation — to find out whether the judicial system that operates in their name has identified the real criminals or punished innocent people. Remember, wrongful conviction is not hypothetical or fanciful in Virginia. It's proven.

Mark Warner got this quest for truth off to a good start. Now, if the Forensic Science Board does not adopt the right policies about notification or if it needs support from other agencies, Gov. Tim Kaine should step in. It is worth his intervention to make sure Virginia approaches this pursuit of justice with the urgency and transparency it deserves.,0,7411440.story

Saturday, 9 February 2008

SXSW Accepts Film on Texas Death Row Case of Innocent Man Executed: Carlos DeLuna

Friday, February 08, 2008

SXSW Accepts Film on Texas Death Row Case of Innocent Man Executed: Carlos DeLuna

At the Death House Door, a film on the case of Carlos DeLuna, who was an innocent person executed by Texas, will have its world premiere at the 2008 SXSW Film Festival. We will also be having our annual Anti-Death Penalty Alternative Spring Break during the week of SXSW, so we are hoping that the film will be scheduled at a time and date that the spring break participants can attend. They haven't announced what days the films will run, just which films are in the festival.

The film focuses on death house chaplain, Rev. Carroll Pickett, who spent the last day of DeLuna's life with him. During the 2006 Alternative Spring Break, we traveled to Huntsville and the students heard a talk by Rev Pickett. Carlos' sister, Mary Arredondo, attended the 2006 March to Stop Executions and delivered a letter to Governor Perry that said, "It is too late to save my brother's life, but it is not too late to take steps to prevent other innocent people from being executed. I am writing to ask that you provide the leadership to make sure that Texas never executes another innocent person.".

At the Death House Door

Director: Steve James & Peter Gilbert.
An investigation of the wrongful death of Carlos DeLuna, who was executed in Texas on December 7, 1989, after prosecutors ignored evidence inculpating a man, who bragged to friends about committing the crimes of which DeLuna was convicted. (World Premiere)

In production for The Independent Film Channel...At the Death House Door is the story of the wrongful execution of Carlos DeLuna and the Death House Chaplain, Pastor Carroll Pickett, who spent the last day of DeLuna's life with him. The feature documentary, currently in production, follows the remarkable career journey of Pickett, culminating in the story of DeLuna, a convict whose execution bothered Pickett more than any other. He firmly believed the man was innocent, and the film will track the investigative efforts of a team of Chicago Tribune reporters who have turned up evidence that strongly suggests he was. The documentary takes a very personal and intimate look at the death penalty in Texas, the first state to do lethal injection. Pickett was present for the first lethal injection in 1982. At the Death House Door is a Kartemquin Films Production in association with the Chicago Tribune.
Sphere: Related Content

Friday, 8 February 2008

Pathologist testified in U.S. death penalty case, inquiry hears

Pathologist testified in U.S. death penalty case, inquiry hears

Tom Blackwell, National Post Published: Friday, February 08, 2008

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Lawyers at a public inquiry have raised startling new evidence about Dr. Charles Smith's activities, revealing that he testified in a 2000 murder case in the United States that resulted in conviction and a recommendation the accused be put to death.

Dr. Smith's gave pathological evidence at the Ohio trial of Christopher Fuller about asphyxia, the kind of testimony that has drawn severe criticism for the pathologist in Canadian cases.

Though the jury urged that Mr. Fuller be executed, the judge in the case imposed a sentence of life in prison.

A letter from John Holcomb, the prosecutor in the Ohio case, to Dr. Smith, raised at the inquiry today, praises the Ontario expert for his help on the Fuller file.

"I, along with my colleagues, found your work in this case to be truly outstanding," Mr. Holcomb wrote.

"I can well imagine that pediatric forensic pathology must rank amongst the most unpleasant fields of medicine in which to practice, but society is indeed fortunate that a man of your caliber has chosen to do so."

Although the letter was part of the 30,000 documents released to lawyers by the inquiry last fall, it was only just discovered last week by Julian Falconer, a lawyer for two native organizations.

Mr. Falconer and lawyers for the Association in Defence of the Wrongfully Convicted and for some of those prosecuted in Dr. Smith's discredited Ontario cases asked Justice Stephen Goudge, who is heading the inquiry, for permission to question Dr. James Young, former head of the Ontario chief coroner's office, about the Ohio case.

That an Ontario pathologist working for the coroner's office would participate in a death-penaly case, when capital punishment is illegal in Canada, is "to say the least disquieting," said Louis Sokolov, lawyer for AIDWYC.

Dr. Young was at the hearings today to reply to some earlier testimony about him.

However, Justice Goudge later ruled that lawyers could not questioned him about the U.S. case, saying it would not add substantially to evidence already before the inquiry.