Petition for Writ of Certiorari — Brett A. Bogle, Petitioner v. Florida

Supreme Court briefJul 10, 2020

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DOCKET NO. _______

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2019

_________________________________

BRETT A. BOGLE,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

_________________________________

_______________________________________

PETITION FOR A WRIT OF CERTIORARI

TO THE FLORIDA SUPREME COURT

_______________________________________

TODD G. SCHER

Florida Bar No. 899641

Law Office of Todd G. Scher, P.L.

1722 Sheridan St # 346

Hollywood, FL 33020-2275

Telephone: (754) 263-2349

FAX: (754) 263-4147

tscher@msn.com

COUNSEL FOR PETITIONER

QUESTIONS PRESENTED--CAPITAL CASE

Whether the prosecution violates Giglio v. United

States, 405 U.S. 150 (1972) and/or Brady v. Maryland, 373 U.S. 83

(1963), if the prosecution presents false and misleading evidence

relating to microscopic hair analysis that exceeds the bounds of

science at trial and/or in a postconviction proceeding?

Whether the prosecution violates Brady v. Maryland, 373

U.S. 83 (1963), in failing to reveal information at trial or in

postconviction that demonstrates impeachment of an FBI Analyst

and the limitations of microscopic hair analysis that was used to

convict and sentence a defendant to death?

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . .

TABLE OF AUTHORITIES. . . . . . . . . . . . . . . . . . . . .

CITATION TO OPINION BELOW . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF JURISDICTION . . . . . . . . . . . . . . . . . . . 1

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED. . . . . . . . 2

PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . . 2

FACTS RELEVANT TO QUESTIONS PRESENTED . . . . . . . . . . . . . 4

THE TRIAL . . . . . . . . . . . . . . . . . . . . . . 4

THE INITIAL POSTCONVICTION PROCEEDING . . . . . . . . 9

Marcia & Guy Douglas . . . . . . . . . . . . . . 9

Forensic Issues. . . . . . . . . . . . . . . .

Hair. . . . . . . . . . . . . . . . . . .

DNA . . . . . . . . . . . . . . . . . . .

Bogle’s Auto Accident. . . . . . . . . . . . .

The Events of September 1, 1991. . . . . . . .

Impeachment Evidence of Prosecution Witnesses.

THE SUCCESSIVE POSTCONVICTION PROCEEDING. . . . . .

FLORIDA SUPREME COURT’S RULINGS . . . . . . . . . . . . . . .

REASONS FOR GRANTING THE WRIT . . . . . . . . . . . . . . . .

THIS COURT SHOULD REVIEW THE ISSUE OF FBI AGENT MICHAEL

MALONE TESTIFYING TO MATERIALLY FALSE STATEMENTS AND

MISLEADING THE JURY THAT CONVICTED AND SENTENCED MR.

BOGLE TO DEATH. . . . . . . . . . . . . . . . . . . 26

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . .

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . .

iii

TABLE OF AUTHORITIES

PAGE

Banks v. Dretke,

540 U.S. 668 (2004). . . . . . . . . . . . . . . . .

28, 31

Bogle v. State,

655 So. 2d 1103 (1995) . . . . . . . . . . . . . . . . . . 2

Bogle v. State,

213 So. 3d 833 (Fla. 2017) . . . . . . . . . . . . 3, 30, 31

Bogle v. State,

288 So. 3d 1065 (Fla. 2019). . . . . . . . . 1, 4, 25, 28,31

Brady v. Maryland,

373 U.S. 83 (1963) . . . . . . . . . . . . . . . . . . i, 28

Giglio v. United States,

405 U.S. 150 (1972). . . . . . . . . . . . . . . . . .

i 32

Hildwin v. State,

141 So. 3d 1178 (Fla. 2014). . . . . . . . . . . . . . .

Hurst v. Florida,

136 S.Ct. 616 (2016) . . . . . . . . . . . . . . . . . . . 3

Strickler v. Greene,

527 U.S. 263 (1999). . . . . . . . . . . . . . . . . . .

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2019

_________________________________

BRETT A. BOGLE,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

_________________________________

Brett Bogle respectfully petitions this Court for a writ of

certiorari to review the decision of the Florida Supreme Court.

CITATION TO OPINION BELOW

The Florida Supreme Court’s decision appears as Bogle v.

State, 288 So. 3d 1065 (Fla. 2019). See Attachment A. The Florida

Supreme Court denied Mr. Bogle’s motion for rehearing on February

11, 2020. See Attachment B.

STATEMENT OF JURISDICTION

Petitioner invokes this Court's jurisdiction to grant the

Petition for a Writ of Certiorari to the Florida Supreme Court on

the basis of 28 U.S.C. Section 1257. The Florida Supreme Court

entered its opinion on December 19, 2019, and rehearing was

denied on February 11, 2020.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

The Fifth Amendment to the Constitution of the United States

provides in relevant part:

No persons . . . shall . . . be deprived of life,

liberty or property, without due process of law.

The Fourteenth Amendment to the Constitution of the United

States provides, in part:

No State shall make or enforce any law which shall

abridge the privileges or immunities of citizens of the

United States; nor shall any State deprive any person

of life, liberty, or property, without due process of

law; nor deny to any person within its jurisdiction the

equal protection of the laws.

PROCEDURAL HISTORY

On October 2, 1991, Brett Bogle was indicted for First

Degree Murder; burglary of a dwelling with assault or battery;

retaliation against a witness; and robbery (R. 24-6). After a

jury trial, the court entered a judgment of acquittal as to the

robbery (R. 181). Bogle was found guilty as to the remaining

charges (R. 179-80). The jury recommended death by a vote of 7 to

5 (R. 182). However, on December 22, 1992, the trial court

granted a motion for new trial as to the penalty phase (R. 217).

On February 8, 1993, a second penalty phase commenced. The

jury recommended death by a vote of 10 to 2 (R. 234). On February

15, 1993, Bogle was sentenced to death (R. 261-7). On direct

appeal, the Florida Supreme Court affirmed Bogle's convictions

and sentences. Bogle v. State, 655 So. 2d 1103 (Fla. 1995).

Bogle filed a series of state postconviction motions,

pursuant to Florida Rule of Criminal Procedure 3.851.

An evidentiary hearing commenced on June 9-13, 2008. On

October 25, 2011, the court denied Bogle’s 3.851 motion. The

Florida Supreme Court affirmed the denial of his claims. See

Bogle v. State, 213 So. 3d 833 (Fla. 2017).

While Bogle’s appeal was pending, on September 7, 2013,

Bogle received information from the United States Department of

Justice (DOJ). The information related to the FBI’s review of

Agent Michael Malone’s testimony at both Bogle’s trial and

resentencing proceeding. According to the FBI, Bogle’s jury

repeatedly heard testimony that “exceeded the bounds of science”.

Based on the information disclosed by the DOJ, Bogle’s

counsel also learned that documents surrounding a 1997 initial

investigation and review of Malone had been disclosed to

journalists pursuant to a FOIA request. Bogle was able to gain

access to the documents in October, 2013.

On January 23, 2014, Bogle filed a second Rule 3.851 motion

based upon the 2013 DOJ review and the documents he obtained

relating to the initial DOJ review (R2. 159-92). The state

circuit court ultimately held Bogle’s motion in abeyance pending

his appeal to this Court.

Bogle subsequently amended his second postconviction motion

on December 20, 2016 and May 19, 2017, with claims related to the

United States Supreme Court’s decision in Hurst v. Florida, 136

S.Ct. 616 (2016) (R2. 283-326; 338-415).

On September 25, 2017, the circuit court summarily denied

Bogle’s second Rule 3.851 motion (R2. 448-676). Bogle filed a

motion for rehearing, which was denied by the circuit court on

November 9, 2017 (R2. 734-35).

On December 19, 2019, the Florida Supreme Court affirmed the

denial of relief. Bogle v. State, 288 So. 3d 1065 (Fla. 2019).

FACTS RELEVANT TO QUESTIONS PRESENTED

THE TRIAL

On September 13, 1991, Robert Wolf noticed a body behind the

Beverage Barn (T. 193). The Beverage Barn was located next to

Club 41 (T. 196).

Dr. Vernon Adams was called to the scene. He told the jury

that:

The body was in a grassy area . . . There were

articles of clothing near the body, a head band,

shorts, a brassiere and socks scattered around. The

other sock was still on the body, the only garment left

on the body. And also near the body were three pieces

of concrete which – two of which appeared to be broken

from one piece.

(T. 208). One of the pieces of concrete appeared to have blood on

it (T. 209); there was blood splatter at the scene (T. 213).

The victim, Margaret Torres, had a laceration to her head

and multiple skull fractures; the injuries were consistent with

the piece of concrete found at the scene (T. 220, 239).

Adams testified that there were injuries to Torres’ anus;

she had “several tears ... there was hemorrhage into the tissue”

and some “microscopic hemorrhage into the lining of the rectum.”

(T. 222). The injuries were consistent with anal intercourse (T.

222), though Adams could not determine whether the intercourse

was consensual (T. 248). Adams opined that the injuries were

inflicted within 3 hours before her death (T. 247). Adams

approximated the time of death as 3:00 a.m. on the 13th.

Torres blood alcohol content was .26% or .29% (T. 245).

Brett Bogle became the prime suspect in the crime. He had

been dating Katie Alfonso, Torres’ sister (T. 263). At this time,

Torres’ young children lived with Alfonso in a trailer (T. 2612). Torres came by the trailer every day (T. 262).

Bogle moved in with Alfonso for 5 or 6 weeks (T. 264). Bogle

and Torres “never got along” (Id.). Bogle tried to get along with

Torres but they continued to argue (T. 266). Alfonso finally

asked Bogle to leave (T. 266-7). Bogle moved out at the end of

August, 1991, but continued to call Alfonso (T. 268).

On September 1, 1991, Bogle called Alfonso and asked if she

wanted to go to Pinellas County to buy some beer (T. 269).

Alfonso and Torres went with Bogle. On the way back, Bogle and

Torres argued (T. 270).

On the ride home, Bogle called Torres a “bitch, whore” and a

troublemaker (Id.). According to Alfonso, when the group arrived

at her trailer, Bogle tried to enter. Torres threatened “to call

the cops and [Bogle], he just blew up.” (T. 272). He busted the

screens and threw Alfonso out of the way to enter the trailer (T.

273). He grabbed the phone from Torres and twisted her arm (T.

274). Then, he took $54.00 from Alfonso’s pocket and told Torres

that “if she called the cops and pressed charges on him ... that

she wouldn’t live to tell about it.” (T. 275).

That same day, a 911 call was placed from Alfonso’s trailer

(T. 255). Deputy Sally Zdanwic responded and spoke to Alfonso and

Torres (T. 256). Zdanwic observed some red marks on Torres’ neck

and wrist (T. 256). She also noticed that a screen on a few doors

were torn and the front door was damaged (T. 256).

Within a few days, Bogle called and threatened Torres if she

pressed charges (T. 277). Bogle called again and Alfonso told him

they were not going to press charges (T. 278).

On the evening of September 12th, Bogle was seen at the Red

Gables Bar (T. 374-5). Jeff Trapp testified that Bogle was with

an individual named Guy Douglas (T. 375). Trapp testified that he

drove Bogle, Douglas and Jeanie Bauerle to Club 41 (Id.). The

group arrived between 10 and 11 p.m. and Trapp saw Torres, who

was by herself (T. 376, 379). Bogle approached Torres and they

had a conversation (T. 377).1 Trapp didn’t notice any injuries or

scratches to Bogle (T. 378). Trapp left the bar 30 to 45 minutes

later (T. 379).

Bogle called Alfonso around 11:00 p.m. and asked if he could

come over (T. 281). Alfonso said “no” and Bogle became furious

and told her that he loved her, but she “can be a real bitch

sometimes.” (T. 281).

Phillip and Tammy Alfonso saw Torres at Starky’s Bar at

10:30 p.m. (T. 407, 432). After about 45 minutes the Alfonso’s

left Starky’s and went to a friend’s house (T. 408-9, 432).

Sometime between 11:30 p.m. and midnight the Alfonsos arrived at

As to Bogle’s conversation with Torres, he testified that it did

not appear heated, but “normal” and neither appeared upset with

the other (T. 1219, 1230).

Club 41 and saw Torres again, alone (T. 433). Torres joined the

Alfonsos at their table. Bogle approached the table and inquired

if Torres was with them (T. 410, 434). Phillip responded “no”

(Id.). Bogle showed him a scar he had from a car accident (T.

411).2 Phillip saw Torres leave the bar around 1:00-1:15 a.m. (T.

412). He saw Bogle walk by him a few minutes later (T. 413). At

2:00-2:30 a.m. the Alfonsos left Club 41. They testified that

they saw Bogle (T. 413). Though Tammy could not really see Bogle,

her husband asked him why he was so dirty (T. 436). Phillip

testified that Bogle looked like “he had been walking in the mud”

and his crotch was wet (T. 414). Bogle said he had passed out in

a van (T. 414, 437). Tammy testified that she noticed some

scratches on his forehead at this time (T. 437).

On September 13, 1991, Detective Larry Lingo arrested Bogle

(T. 359).3 Lingo testified that Bogle “had what appeared to be

scratches on his forehead and they appeared to be fresh to me at

that point.” (T. 363).

Ronald Cashwell, who worked in the crime scene unit,

testified that he collected a pair of white pants from a bathtub

and the pants “were still damp” (T. 346). Cashwell testified:

Q: When you collected the shoes and the pants and

you packaged them, where did you take them?

The Alfonsos testified that they noticed no injuries to Bogle or

scratches on his forehead (T. 411, 435).

During Lingo’s testimony, he told the jury that Torres’ clothes

were stacked beside her body in a pile and her sneakers were

placed together on the other side of her body (T. 1281). They

were not ripped or strewn about (T. 1282).

A: Packaged them separately and transported them

to the ID garage.

Q: Okay. And are they – were they put in a secured

area?

A: Yes, ma’am.

(T. 346-7; 350).

Corporal Art Picard photographed Bogle on September 14th (T.

339); see State’s Trial Exs. 20 A, B and C. On September 17th

Lingo checked Bogle’s pants out of evidence and examined them:

A: I took a piece of brown wrapping paper put out

on the counter and opened the pants up on top of this

and as they were laying on the paper looking down at

them, the zipper part opened, I found several what

appeared to be pubic hairs inside of the pants and also

inside the legs of the pants.

(T. 366).4

FBI Agent Michael Malone examined and compared the contents

of S-Ex. 13, which was the debris from Bogle’s pants, with the

known head hair and pubic hair from Torres (T. 317). There was a

single “Caucasian pubic hair which matched the pubic hairs of

Margaret Torres. In other words it was microscopically

indistinguishable from her’s and, therefore, I concluded this one

pubic hair from the pants was consistent with coming from

Margaret Torres.” (T. 317-8).

FBI Agent Robert Grispino testified that he identified a

small drop of blood on Bogle’s left shoe, but could not classify

it any further (T. 392). Grispino’s analysis also determined that

blood was present under Torres’ right fingernails (T. 394).

Lingo testified that no one had come into contact with the pants

prior to this time (T. 366).

FBI Agent Harold Deadman was provided the vaginal swabs on

which another agent had identified seminal fluid and “portions of

cloth having been removed from the victim’s panties” (T. 462).

Deadman explained that he was able to extract DNA from the

panties but: “I obtained insufficient DNA to conduct our

analysis.” So, the result was inconclusive (T. 464). As to the

vaginal swabs, Deadman testified:

[T]here was only a very small amount of DNA

obtained from the vaginal swabs of the three tests that

I conducted. I obtained DNA patterns for two of the

tests and one test I obtained no patterns. The

sensitivity of that particular test was not sufficient

to generate any results. So, again on one of the tests,

the results would be inconclusive because nothing was

obtained.

On one of the tests I did on the – a DNA profile

from the vaginal swab DNA that was matching to Brett

Bogle’s DNA profile. The second produced a result was

also determined to be inconclusive, but for a technical

reason.

(T. 465). Deadman testified that statistically the profile meant

that one in twelve Caucasians would exhibit the same profile (T.

467). Deadman opined that the database overestimated the

statistics so the percentages would be smaller (T. 468).

THE INITIAL POSTCONVICTION PROCEEDING

At the evidentiary hearing, trial counsel, Doug Roberts

explained his perception of the case against Bogle:

The State’s case was that he was the most likely

suspect because he had been arguing with her and there

was just nobody else that they wanted to investigate.

(PC-T. 586). Roberts believed that the ‘scientific evidence was

the big deal in the case” (PC-T. 680). But, the case against

Bogle was “circumstantial” (PC-T. 588, 651). Roberts believed

that Bogle was innocent (PC-T. 589).

Marcia & Guy Douglas

Guy Douglas was a target of investigation of Bogle’s defense

(PC-T. 594). ASA Karen Cox’ notes reflect she had been provided

information that Douglas confessed to involvement in the crime:

Marcia Bowerly, sister of Jeane Burile, 6903 Michigan

Avenue, Gibsonton, FL

Guy Douglas 92-7731 capias

talk to re: Guy Douglas confessed to being involved.

(D-Ex. 2)(emphasis added). The information contained therein was

not disclosed to trial counsel (PC-T. 593-4).

Cox testified that she was unsure as to when or how she came

into possession of the information that Douglas had confessed

(PC-T. 425-6). However, Cox’ file reflects that she was involved

in the prosecution of Douglas where he had viciously beaten a

pregnant Marcia as early as May 22, 1992. See D-Exs. 7, 8.

Indeed, Cox had an investigative subpoena issued for Marcia to

meet with her on August 5, 1992 (PC-T. 430, D-Ex. 5).

As Bogle’s trial approached, Cox’ file makes clear that she

or someone with the State spoke to Marcia and that Marcia had

been the source of the information regarding Douglas’ confession

and involvement in Torres’ murder. Just days before Bogle’s trial

was to begin, local attorney Wayne Timmerman returned a call from

Cox (D-Ex. 9). At the evidentiary hearing, the notes reflecting a

return phone call from Timmerman to Cox were explained: In 1991,

Marcia became pregnant with Douglas’ baby. Marcia was in fear of

Douglas due to her knowledge of his involvement in killing

Torres. She decided to place her child for adoption and contacted

Timmerman (PC-T. 1026). Though Timmerman did not handle family

law matters, he referred Marcia to another attorney with whom he

shared office space (PC-T. 5255). That attorney, Elizabeth

Hapner, used the services of Timmerman’s wife, Suzanne, in her

practice. However, whether it was because she initially attempted

to retain Wayne Timmerman or because Suzanne Timmerman was

present when Marcia gave birth to her child (PC-T. 817-8), or

whether Marcia simply recalled Timmerman’s name from the office

building where she met with Hapner, Marcia confusedly reported

that she was represented by Timmerman in the adoption proceedings

and she reported that she had told her attorney about her reasons

for giving up her baby and what she knew about Douglas’

involvement in Torres’ killing.5

Marcia told Cox that she had spoken to her attorney about

Douglas’ involvement in killing Torres and Cox attempted to

verify the information. Cox did not disclose the information.

Cox also attempted to verify the information with Marcia’s

husband, Gary Turley. See D-Ex. 15.

Had Cox disclosed the information Marcia possessed, the

defense would have learned that Marcia and Douglas were dating in

1991 (PC-T. 491-2). In September 1991, Marcia lived at the Gables

Motel and worked at the bar (PC-T 493-4). Marcia met Bogle on the

Hapner recalled that the father may have committed a murder in

the Gibsonton area in 1991 (PC-T. 5258).

night of the crime (PC-T. 494). Marcia observed scratches on

Bogle’s face and forehead, that he had difficulty walking and was

wearing a sling (PC-T. 494, 530). Bogle explained that he had

been involved in a car accident (PC-T. 494). In the early

evening, Marcia, Douglas, Bogle and a girl named “Trish” went to

the Red Gables bar for drinks and proceeded to Club 41 (PC-T.

495-6). When the foursome arrived, they played pool for awhile

and then Marcia sat at the bar (PC-T. 497). Marcia recalled that

later, she and Douglas argued and she decided to leave (PC-T.

498). Marcia, who had been drinking, went out to the parking lot

and fell asleep in a car (Id.). When she awoke, she entered the

bar, had a glass of water, used the restroom and left Club 41 to

walk to the motel (PC-T. 499).

At the motel, Marcia was awakened by Douglas’ entering the

room (PC-T. 502). The next time Marcia woke up, it was daylight

and Douglas was coming out of the shower (PC-T. 503). Marcia’s

sister, Jeanne, also saw Douglas coming out of the bathroom,

holding his clothes in his arms (PC-T. 826).

Later, after learning that Torres had been killed, Douglas

told Marcia that Bogle had been arrested, but he [Douglas] did

not have to worry because he had been with Marcia all night (PCT. 505). Marcia was shocked because he was not with her all night

and when she said this to Douglas, “[h]e told me that he was with

me all night and I needed to – that I didn’t need to say anything

other than that or they would be lucky if they found my body.”

(Id.). That same day Marcia moved out of the motel and left her

employ (PC-T. 505, 830). She was frightened about what Douglas

may do to her if she did not provide him with an alibi and

believed that his threat was in relation to Torres’ murder (PC-T.

513, 523).

Jeanne confirmed that Douglas had told Marcia she should

supply an alibi for him and that Marcia was “scared to death” of

Douglas based on what happened (PC-T. 827). Jeanne recalled that

Marcia had told her that the clothes Douglas held as he was

leaving the motel were bloody (PC-T. 827).

In 1992, while pregnant, Douglas beat Marcia and told her

“to quit running [her] mouth.” (PC-T. 518). Marcia assumed that

her sister had mentioned that Marcia had told her about what she

saw on the night of the crime because Douglas and her sister were

together the night before the beating occurred (PC-T. 518-9).

Gary Turley remembered the night of September 12, 1991. He

recalled seeing Douglas leaving Club 41, after dark, in his truck

with Torres (PC-T. 1013). They headed north from Club 41 (PC-T.

1014-5). After going into Club 41 to look for Marcia, Turley left

and saw Bogle get into another car with a dark-haired, heavy-set

female (PC-T. 1016). Turley observed that car head south from

Club 41 (PC-T. 1016). When Turley passed the Beverage Barn, he

saw what he thought was Douglas’ truck in the parking lot (PC-T.

1017). Sometime later, Marcia told Turley that Torres had been

killed; Marcia was hysterical because Douglas had threatened her

and she was scared (PC-T. 1019).

Patricia Bowmen, whose maiden name was Diaz, was the “Trish”

that spent time with Bogle on the night of September 12, 1991

(PC-T. 1143). At this time Bowmen had dark hair, weighed over 200

pounds and was 5 feet 2 inches tall (PC-T. 1144-5). Law

enforcement wanted to speak to her because it was believed that

Bowmen gave Bogle a ride home on the night of the crimes (D-Ex.

55). Bowmen remembered the sequence of events consistently with

Marcia (PC-T. 1143-4). Bowmen also testified that she had driven

Bogle home from the club in the morning hours of the 13th (PC-T.

1145).

Trial counsel acknowledged the significance of this

information and testified that he would have considered

presenting such evidence in Bogle’s defense (PC-T. 605-6).

Bogle also presented evidence that in a sworn deposition,

Roger Kelly testified that Torres was drinking and dancing with a

man – not Bogle (D-Ex. 24). As Kelly was leaving Club 41, he saw

Torres outside standing next to the dumpster arguing back and

forth with a man (Id.). Kelly maintained that Torres was arguing

with Douglas (Id.). Bogle was not present during the argument.

And, even before the evidence concerning Douglas came to

light, Cox was informed that Katie Alfonso had called the

victim’s advocate to report that there were two people involved

in killing Torres (D-Ex. 1). Though Cox believed that this was

the type of information she would want to investigate, she did

not disclose the information to the defense.

Forensic Issues

Hair

At trial, Cox presented evidence that a pubic hair that

matched Torres had been discovered on Bogle’s pants. However,

at the evidentiary hearing, Lingo admitted that his trial

testimony concerning the storage of evidence and collection of

the hair was not accurate (PC-T. 1404). The prosecution failed to

reveal that after Cashwell collected Bogle’s pants:

CST Cashwell placed the evidence in the drying

shed where they were left to air dry for approximately

six (6) hours, when he removed them and placed them in

the Evidence Room on September 14, 1991. ...

On September 17, 1991, Detective Larry Lingo

checked the pants out of the Evidence Room for

investigative purposes. He found the pants to still be

wet. Also, on September 17, 1991, CST Don Hunt removed

the pants from the Evidence Room and air dried them

until September 18, 1991 when he placed them back in

the Evidence Room.

(D-Ex. 12). In Cashwell’s own written statement he noted: “The

items placed in the [drying] shed are unable to be separated from

each other and could contaminate each other and the shed was full

of other evidence drying.” (D-Ex. 12)(emphasis added).

In addition, at the hearing, it was revealed that Lingo was

removing evidence from the secure evidence room to conduct

“investigation”. See S-Ex. 6; D-Ex. 60. Though Lingo had no

training in the collection of evidence and there were crime scene

technicians who were specially trained to collect and maintain

evidence (PC-T. 1371), he took it upon himself to remove the

white pants as well as evidence collected from the victim during

the autopsy (see D-Ex. 12; S-Ex. 6). During the evidentiary

hearing, he could not explain why he had removed the evidence

(PC-T. 1375). It was during this “investigation” that Lingo, who

had no training in the comparison of hairs, happened to find what

he described as a “pubic hair” on Bogle’s pants.6

The prosecution also failed to supply trial counsel with FBI

agent Malone’s bench notes which reflected a critical discrepancy

(PC-T. 634). In his testimony and report, Malone indicated that

the hair found on Bogle’s pants was a pubic hair. He testified

that the pubic hair matched the known sample of pubic hair taken

from Torres. However, Malone’s bench notes indicated that the

hair on Bogle’s pants actually matched the known head hair taken

from Torres (PC-T. 5192-3, 5196; see also D-Ex. 21).7

Dr. Terry Melton, an expert in mitochondrial DNA (mtDNA)

analysis, testified in a proffer that Malone overstated the

results of his comparisons (PC-T. 1090). Melton testified that

independent studies have demonstrated that hair comparison has a

high error rate, generally between 5-10% (PC-T. 1093).

DNA

The DNA profile from the blood beneath

Torres’ fingernails

Bogle had the fingernail cuttings from Torres subjected to

YSTR DNA testing. The results of the testing reveal that two male

Lingo described the hair as a pubic hair, though he admitted he

would not be able to tell the difference between a pubic hair and

a hair that originated from a leg, arm, the chest, neck or any

other body area (PC-T. 1376, 1406).

Malone also testified that no records or chain of custody were

kept as to the hair and fiber evidence that was submitted to the

FBI (PC-T. 1476-7).

individuals did leave some genetic material beneath Torres’

fingernails on the night she was killed – but neither of those

individuals is Bogle (PC-T. 1782, 1837, 1902, 1911-2, 1943,8 DExs. 76, 77). Nasir testified that Torres would have had “to come

in direct contact with the individual” to have his DNA beneath

her nails (PC-T. 1802, 1817). She believed Torres would have had

to rub her hand against him or scratched him (PC-T. 1802). And,

after the DNA was deposited “not a lot of cleaning [of Torres’

hands] took place” (PC-T. 1803).9

ii.

RFLP DNA testing in 1991-92

Bogle presented evidence that unbeknownst to him, Lingo

checked out vital evidence, including the vaginal, anal, and oral

swabs obtained from Torres, for a period of four hours after it

had been submitted to the evidence section of the sheriff’s

office (D-Exs. 11, 60 and S-Ex. 6).

Bogle also presented evidence that the FBI’s bench notes and

data concerning the DNA testing evidenced several problems with

the RFLP testing. See D-Ex. 20.10

In Bogle’s case there was no chain of custody documented and

no documentation concerning the integrity of the evidence (see DEx. 20, PC-T. 1232, 5102). The file does reveal that controls and

The State’s expert, Dr. Martin Tracey confirmed Nasir’s

conclusion: “It is not [Bogle’s] DNA.” (PC-T. 1943).

Tracey commented that if there had been a positive test for

blood, then it would indicate that the DNA was developed from a

blood source (PC-T. 1954).

The file was not disclosed to Bogle (PC-T. 634).

tests were not run which may have effected the position of the

fragments (PC-T. 1180-1). The file also reveals inexplicable

difficulties and inconsistencies in the results of the tests (DEx. 20). There were artifacts in some of the autoradiographs that

suggested the possibility that the samples had mixed (PC-T. 1198,

see also D- Exs. 20 and 43). And, the fact that no result was

produced demonstrated a problem with the testing (PC-T. 1199200). There was no reproducibility of the result (PC-T. 1207).11

In addition, neither Bogle, nor the jury, was made aware

that the DNA testing was conducted by an analyst whose name was

never revealed until 2008 (PC-T. 1176-7). At the evidentiary

hearing, agent Deadman testified for the first time in Bogle’s

case that he did not conduct the analysis of the vaginal swabs:

There would be a biologist, physical science

technician that would do essentially all of the

laboratory work. They would be responsible for

extracting the DNA, running through the RFLP procedure.

(PC-T. 1261). Deadman agreed that it was not made clear to

Bogle’s jury that there was a team analyzing the DNA as opposed

to just him (PC-T. 1292).

Deadman also explained that what he characterized as a

“match” in 1992 and 1993 only meant that “one could not exclude a

particular person” (PC-T. 1252). And, the single probe “match” in

Bogle’s case was “relatively common” (PC-T. 1267).

iii. STR DNA testing in 2002

Former FDLE Analyst, Patricia Bencivenga, testified as to

Dr. Libby, a DNA expert, opined that consistency at a single

locus with no reproducibility was unreliable (PC-T. 1211).

the STR DNA analysis that was conducted on the vaginal swabs.

When Bencivenga received the swabs they were not sealed and she

had no idea when the swabs were packaged (PC-T. 1578-9). She also

had no idea whether the items that came from Bogle, including

buccal swabs, blood and clothes had been stored with the unsealed

vaginal swabs (PC-T. 1592). If the vaginal swabs had been

contaminated by Bogle’s DNA due to the way items were stored

there would be no way to know (PC-T. 1593). Indeed, STR DNA

testing is very sensitive and causes more likelihood that

contamination can occur (PC-T. 1593).

The results of combining all of the tips from the swabs (PCT. 1559), was a mixture (PC-T. 1564). Bencivenga’s interpretation

of the mixture was subjective (PC-T. 1608, 1612).

The State’s expert, Tracey, testified that while the data

was consistent with two donors, “[y]ou could make the argument

that there were three and they were undetected . . .” (PC-T.

1939). Furthermore, Tracey testified that the data was not

conclusive evidence that the DNA reflected a male and a female

(PC-T. 1940).

Upon interpreting the data, Bencivenga submitted what she

believed was the male profile to CODIS and received a hit that

matched Bogle (PC-T. 1566-7). Bencivenga also testified that the

semen found on Torres’ panties was analyzed and she interpreted

the mixture as being the DNA profile for one male and one female

(PC-T. 1569). She had obtained a profile at only one allele (PCT. 1569). The one allele on the male profile was consistent with

Bogle’s (Id.).

Lingo testified at the evidentiary hearing that Bogle denied

having sex with Torres (PC-T. 1367). However, his notes that were

taken contemporaneously in his interview with Bogle include no

reference to Bogle denying he had sex with Torres (PC-T. 1421, DEx. 62). Lingo’s report was not written until nine days after his

interview with Bogle (PC-T. 1421).

Bogle’s Auto Accident

Bogle was involved in an automobile accident on September 6,

1991. The prosecution obtained the accident report which

contained information that Bogle and George Schrader were riding

in a car when another car slammed into Schrader’s vehicle,

sending the vehicle head-on into a telephone pole (D-Ex. 13).

Bogle, who was not wearing a seat belt, was thrown head

first into the windshield of the car and suffered major trauma.

He was rushed to Tampa General Hospital. Bogle’s records reflect

that he sustained lacerations to the head and face (D-Ex. 33, see

also PC-T. 884). He received sutures for the laceration over his

right eye (Id.). He suffered traumatic pneumothorax,” a collapsed

lung caused by fractured or bruised ribs and an injury to his eye

(Id.). He complained of pain on his left side. Bogle remained in

the hospital for three days (Id.).

Mary Schraeder informed the defense investigator that “Brett

had a tremendously difficult time walking, sitting, etc. after

the accident. Mary saw Brett on the Tuesday before the murder and

said that he needed help getting his shirt off because of his

injuries.” (D-Ex. 50). Bogle’s mother also described the injuries

her son had suffered during the accident, including the injuries

to his head. See D-Ex. 51. Photos were available of Bogle shortly

after the accident occurred which depicted several facial

lacerations. See D-Exs. 26, 27.12

The Events of September 1, 1991.

Shortly before Bogle’s trial, Everett Smith told the

defense: He knew Bogle because they lived at the same motel in

September, 1991 (PC-T. 709). On September 1st, he and Bogle

picked up Alfonso and Torres and they drove to Manatee County to

purchase beer (PC-T. 712-13). From what Smith could tell Alfonso

was happy and excited to see Bogle (PC-T. 714). After they picked

up the beer, the foursome drove back to the motel where Smith and

Bogle lived (PC-T. 714). Neither Alfonso nor Torres indicated any

fear around Bogle (PC-T. 715). Rather, Bogle and Alfonso acted

like a couple getting along (PC-T. 716).

Dr. Edward Willey testified as to the healing process of

abrasions and lacerations (PC-T. 880-1). After reviewing records

and photographs, Willey testified that Bogle’s account of the

accident was consistent with the description of the injuries

noted in the records, i.e. injuries to his forehead and right

cheek from being thrown into the windshield (PC-T. 884). Based on

the photographs from the hospital, Willey would not expect the

wounds to Bogle’s forehead and face to heal in seven days (PC-T.

886)(“Lacerations usually take somewhat longer than that”). The

wounds depicted in the photographs taken after Bogle was arrested

do not appear “fresh” and they do not look like wounds that were

received within three days of the photographs, i.e., the time of

the crime, because they were clean and depressed (PC-T. 886). The

wounds in Bogle’s post arrest photos also appeared in the same

general area as was described in the medical records from Bogle’s

accident (PC-T. 887. And, they did not appear to be “reopened or

reinjured” (PC-T. 889).

In the afternoon, Bogle asked Smith if he would take the

girls home (PC-T. 716). Smith drove, Bogle was the passenger, and

Alfonso and Torres sat in the backseat (PC-T. 717-8). While in

the car, Smith did not hear any arguments, threats or name

calling (PC-T. 717). When they arrived at Alfonso’s trailer,

Alfonso, Torres and Bogle walked into the trailer (PC-T. 718). No

one was arguing (PC-T. 718). A few minutes later, Smith heard

some arguing from inside the trailer (PC-T. 718-9). As Bogle left

the trailer he kicked the screen out of the door (PC-T. 719).

5. Impeachment Evidence Of Prosecution Witnesses

Phillip and Tammy Alfonso and Trapp testified at trial about

Bogle’s movements and demeanor on the night of the crime. The

Alfonsos, by Phillip’s account to law enforcement, had been

drinking for five hours when they observed Bogle’s appearance and

demeanor. They were not asked about their intoxication.

In addition, Trapp was inexplicably not questioned about his

outstanding criminal issues. And, Trapp’s testimony was

contradicted by the Alfonsos who testified that Bogle did not

speak to Torres at the bar (R. 412). Trapp also gave conflicting

accounts of how much he drank at Club 41.

THE SUCCESSIVE POSTCONVICTION PROCEEDING

Unbeknownst to Bogle, in 2013, the DOJ and the FBI flagged

his case, for a second time, to consider whether Malone “exceeded

the limits of science by overstating the conclusions that may

appropriately be drawn from a positive association between

evidentiary hair and a known sample.” See R2. 185.

In an August 20, 2013 letter to the Office of the State

Attorney for the Thirteenth Judicial Circuit, the DOJ explained

that it “determined that a report or testimony regarding

microscopic hair comparison analysis containing erroneous

statements was used in this case.” (R2. 184). The following

errors in Bogle’s case were identified:

We have determined that the microscopic hair comparison

analysis testimony or laboratory report presented in this

case included statements that exceeded the limits of science

and were, therefore, invalid: (1) the examiner stated or

implied that the evidentiary hair could be associated with a

specific individual to the exclusion of all other-this type

of testimony exceeded the limits of science; (2) the

examiner assigned to the positive association a statistical

weight or probability or provided a likelihood that the

questioned hair originated from a particular source, or an

opinion as to the likelihood or rareness of the positive

association that could lead the jury to believe that valid

statistical weight can be assigned to a microscopic hair

association–this type of testimony exceeded the limits of

the science; and (3) the examiner cites the number of cases

or hair analyses worked in the laboratory and the number of

samples as predictive value to bolster the conclusion that a

hair belongs to a specific individual-this type of testimony

exceeded the limits of science.

(R2. 185). In fact, as to the second type of error, the jury

heard five (5) separate statements that exceeded the bounds of

science (R2. 188-89). And, at Bogle’s resentencing proceeding,

the jury heard testimony that exceeded the bounds of science as

to all three areas of errors on multiple occasions (R2. 190).

In light of the recently disclosed results from the FBI’s

review of Bogle’s case, Bogle learned that a plethora of

documents related to the review that occurred in 1997, in which

the DOJ, Office of the Inspector General, criticized the work of

thirteen examiners at the FBI, one of whom was Michael Malone,

had been released. Bogle had requested these documents at the

time of his evidentiary hearing and had attempted to question

Malone and Steve Robertson about the review but was not permitted

to do so by the state circuit court (PC-T. 1469, 5218-19).

The documents reflect that in more than eighty percent of

the cases reviewed, Malone was criticized for the testimony he

provided as to hair analysis – testimony similar to the testimony

he provided to Bogle’s jury. Specifically, Malone was rebuked for

testifying to statistically invalid rates of error. And, Malone

was criticized for misleading courts and fact finders as to the

science behind hair analysis, i.e., that 15 characteristics were

needed to make a “match”. Malone’s comparison and conclusions

were not based on any research or literature and were completely

fabricated to support his opinions. In Bogle’s case, Malone told

the jury: “[I]t’s my policy or it’s the policy of our lab that we

have to find at least fifteen of these individual microscopic

characteristics in the hair.” (T. 312-13; see also T. 1304). This

statement was false.

Malone was also highly criticized for failing to provide

clear notes so that it could be determined whether he performed

the hair comparison in an acceptable manner. And, again, in

almost eighty percent of the cases reviewed, Malone’s testimony

was inconsistent with his lab report and/or bench notes; these

inconsistencies were not the product of transcription errors. The

number of inconsistencies could even be higher, but it was

difficult to decipher Malone’s notes in some cases. Similarly,

critical errors occurred in Bogle’s case, one of which Malone

testified was simply a transcription error.

FLORIDA SUPREME COURT’S RULING

In response to Bogle’s claims that he was denied due process

when the jury that convicted him and sentenced him to death heard

materially false and misleading testimony, the Florida Supreme

Court held:

The 2013 DOJ/FBI review is of no help to Bogle here,

however, because he cannot use a successive 3.851

motion to litigate issues that he could have raised in

his initial postconviction motion. Bogle was well

aware of potential deficiencies in Malone's testimony

long before the 2013 review (which, in any event, on

its face says nothing about what the state did or did

not know about the reliability of Malone's testimony).

In our opinion in Bogle II, for example, we noted that

“Bogle ... claims that his trial counsel was deficient

in failing to demonstrate that the hair comparison in

this case was unreliable and flawed.” 213 So. 3d at

847. Relatedly, the record in Bogle's initial

postconviction motion shows that Bogle's counsel had

received notice of the results of an earlier DOJ

review of Malone's work in Bogle's case. That 1999

review found that the lab reports of Malone's work

were not sufficiently documented to determine whether

the work had been done in a scientifically reliable

manner. With diligence, Bogle could have litigated in

his initial postconviction motion the same Brady and

Giglio claims that he raises now.

Bogle v. State, 288 So. 3d 1065, 1068 (Fla. 2019)(footnotes and

citations omitted).

REASONS FOR GRANTING THE WRIT

THIS COURT SHOULD REVIEW THE ISSUE OF FBI AGENT MICHAEL

MALONE TESTIFYING TO MATERIALLY FALSE STATEMENTS AND

MISLEADING THE JURY THAT CONVICTED AND SENTENCED MR.

BOGLE TO DEATH.

The Florida Supreme Court’s analysis of Mr. Bogle’s due

process claim was factually and legally erroneous. Initially, the

Florida Supreme Court failed to consider any of the previously

suppressed information relating to the initial 1997 DOJ review of

Malone and others at the FBI. The initial 1997 report prompted a

specific review of several of Malone’s cases, including Mr.

Bogle’s, but was confined to determining whether there were

inconsistencies between Malone’s bench notes, report and

testimony and whether his documentation was sufficient to

conclude that the analysis had been conducted in a scientifically

reliable manner (S-Exs. 5, 5A). That review was not focused on

the reliability of the science itself or whether his testimony

was false or misleading.

Further, at the state court 2008 evidentiary hearing, Steve

Robertson, the independent examiner who reviewed Mr. Bogle’s

case, testified that he had been threatened with the death

penalty if he discussed his review of Malone as it related to

other cases. The circuit court sustained the State’s objection to

questions to both Robertson and Malone about the initial review

and Malone’s work in other cases (PC-T. 1469, 5218-19). Notably,

Robertson also testified as did Malone, under oath, that Malone’s

trial testimony was not misleading and was accurate. That

testimony was credited and used in denying Mr. Bogle’s due

process claims.

Between the initial review and the 2013 review, documents

were released to a reporter and Mr. Bogle’s postconviction

counsel was finally able to review them. The documents reflect

that in more than eighty percent of the cases reviewed, Malone

was criticized for the testimony he provided as to hair analysis

– testimony similar to the testimony he provided to Mr. Bogle’s

jury. Specifically, Malone was rebuked for testifying to

statistically invalid rates of error. And, Malone was criticized

for misleading courts and fact finders as to the science behind

hair analysis, i.e., that 15 characteristics were needed to make

a “match”. Malone’s comparison and conclusions were not based on

any research or literature and were completely fabricated to

support his opinions. In Mr. Bogle’s case, Malone told the jury:

“[I]t’s my policy or it’s the policy of our lab that we have to

find at least fifteen of these individual microscopic

characteristics in the hair.” (T. 312-13; see also T. 1304). This

statement was false and the State knew it.

Malone was also highly criticized for failing to provide

clear notes so that it could be determined whether he performed

the hair comparison in an acceptable manner. And, again, in

almost eighty percent of the cases reviewed, Malone’s testimony

was inconsistent with his lab report and/or bench notes; these

inconsistencies were not the product of transcription errors. The

number of inconsistencies could even be higher, but it was

difficult to decipher Malone’s notes in some cases. Similarly,

critical errors occurred in Mr. Bogle’s case, one of which Malone

testified was simply a transcription error.

The Florida Supreme Court simply ignored this previously

suppressed exculpatory evidence in its December 19, 2019,

opinion, but it is surely the type of evidence that is admissible

and should have been considered. Likewise, in light of the

obfuscation and false statements made at the 2008 evidentiary

hearing by the State’s witnesses, there is no doubt that Brady v.

Maryland, 373 U.S. 83 (1963), violations occurred. See Banks v.

Dretke, 540 U.S. 668 (2004); Strickler v. Greene, 527 U.S. 263

(1999).

As to the conclusions of the second review of Mr. Bogle’s

case which were contained in the 2013 DOJ Report, the Florida

Supreme Court faulted Mr. Bogle for not litigating those

deficiencies “long before the 2013 review ...” Bogle v. State,

288 So. 3d at 1068. However, while Mr. Bogle has consistently

challenged Malone and the reliability of his testimony, the

State, through expert witnesses, disputed Mr. Bogle’s experts and

allegations and both the state circuit court and Florida Supreme

Court sided with the State in the fact findings and analysis that

was conducted. Now, due to the 2013 DOJ Report, it is

indisputable that what Mr. Bogle has been saying for a decade or

more is true: Malone’s testimony before the jury that convicted

him and the jury that sentenced him to death was false and

misleading, and the State knew it.

The Florida Supreme Court’s ruling is perverse and

inconsistent because both the state circuit court and the Florida

Supreme Court have repeatedly credited Malone’s testimony, based

upon a flawed and unreliable science, in upholding Mr. Bogle’s

conviction. For instance, in denying Mr. Bogle’s claim as to

undisclosed information regarding Guy Douglas, the state circuit

court’s prejudice analysis relied in part on Malone’s “testimony

that one of the hairs collected from the pants that Defendant

wore on the night of the murder was microscopically consistent

with Margaret Torres’s pubic hair.” (R2. 622).

Further, in denying Mr. Bogle’s claim as to undisclosed

evidence concerning the storage and handling of Mr. Bogle’s pants

by Lingo and Cashwell, the state circuit court again relied on

Malone’s testimony:

Agent Malone testified that placing evidence in

drying rooms is standard procedure for wet evidence and

it do[es] not cause contamination unless two items

touch one another because hair does not “float through

the air.” (See 11/30/2009 EH, page 135). And after

reading Technician Cashwell’s reprimand, Agent Malone

testified that there is nothing in the report that

would cause him to alter his opinion that the hair

found on Defendant’s pants is a match to Ms. Torres’

pubic hair. (See 11/30/2009 EH, page 160.)

(R2. 626)(emphasis added).

Finally, in denying Mr. Bogle’s newly discovered evidence

claim regarding Marcia Turley and the fingernail scrapings, the

circuit court again relied in part on Malone’s “testimony that

one of the hairs collected from the pants that Defendant wore on

the night of the murder was microscopically consistent with

Margaret Torres’s pubic hair.” (R2. 654).

In denying Mr. Bogle’s challenge, based on the DOJ report,

to Malone’s testimony at trial, the state circuit court accepted

Malone’s testimony that he made a transcription error:

The Court finds Agent Malone’s testimony extremely

persuasive on this matter. The reference in the bench

note to a pubic hair only makes sense if he is

referring to K6, a pubic hair, as opposed to K7 which

is a head hair. The Court finds therefore that

Defendant has failed to show that Agent Malone

testified falsely at Defendant’s trial; consequently,

he has failed to show that the State violated Giglio in

regards to Agent Malone’s testimony.

(R2. 657-58)(emphasis added).

The Florida Supreme Court likewise relied on Malone’s

testimony in its opinion affirming the denial of postconviction

relief:

Bogle has not shown that the State suppressed evidence

of contamination. The disciplinary report and

Cashwell’s statement on which Bogle relies do not show

that any evidence was actually contaminated but convey

that the evidence could have been contaminated or

destroyed. Malone testified at the evidentiary hearing

that he found no evidence of contamination on the hairs

retrieved from Bogle’s pants and that the disciplinary

report did not cause him to change his opinion of the

match. Even if Bogle met the first two prongs of Brady,

showing favorable evidence and suppression, the

materiality prong has not been satisfied. Accordingly,

we find that Bogle has failed to establish a Brady

violation.

Bogle v. State, 213 So. 3d at 844-45. Further, in finding a lack

of prejudice as to Mr. Bogle’s guilt phase ineffective assistance

of counsel claim, this Court relied in part on the determination

that “A pubic hair found near the crotch of Bogle’s pants matched

Torres.” 213 So. 3d 833, 846 (Fla. 2017)(emphasis added). In

light of the 2013 DOJ Report, the Florida Supreme Court’s prior

finding is clearly erroneous.

Though Mr. Bogle’s expert, Dr. Melton, opined that Malone’s

testimony was unscientific, the state circuit court as well as

this Court refused to consider or credit her testimony. Bogle,

213 So. 3d at 840. To punish Mr. Bogle for the State’s failure to

disclose exculpatory evidence violates due process.

Mr. Bogle submits that the rulings of the state circuit

court and the Florida Supreme Court which relied on the testimony

of Malone and the FBI at trial and during the initial

postconviction proceedings must be re-examined in light of the

recently discovered exculpatory evidence.13 Moreover, the

recently disclosed evidence “cannot be excluded merely because

the new scientific evidence is contrary to the scientific

evidence that the State relied upon in order to secure a

conviction at the original trial. Hildwin v. State, 141 So. 3d

1178, 1187 (Fla. 2014).

Further, the Florida Supreme Court’s analysis is flawed in

that it overlooks the fact that if Mr. Bogle did not prevail on

his claim that “‘hair comparison in this case was unreliable and

flawed’”, see Bogle, 288 So. 3d 1068, it was only because the

State and state courts refused to acknowledge that fact. A

conclusion placing the burden on Mr. Bogle to do more than he did

violates due process. See Banks v. Dretke, 540 U.S. 668, 696

For instance, Mr. Bogle now possesses the exculpatory evidence

that was withheld from him at the time of his evidentiary hearing

which demonstrates that Malone’s explanation as to the

inconsistency in his bench notes and testimony was not credible.

(2004)(“A rule thus declaring ‘prosecutor may hide, defendant

must seek,’ is not tenable in a system constitutionally bound to

accord defendants due process.”).

And, if the Florida Supreme Court’s analysis is correct then

surely the State was aware of the unreliability of hair analysis

generally and Malone’s testimony at Mr. Bogle’s trial and Malone

and Robertson’s testimony in postconviction. Thus, there can be

no doubt that the State violated Giglio v. United States, 405

U.S. 150, 153 (1972), due to the repeated “deliberate deception

of [the] court[s] and jurors by the presentation of known false

evidence [which] is incompatible with ‘rudimentary demands of

justice.’”

As to the impact of the DOJ’s acknowledgment that the

testimony was false and misleading, the Florida Supreme Court

minimizes it by relying on a single statement made by Malone at

trial after repeatedly misleading the jury and the DNA results

from the vaginal swab and victim’s underwear. In conducting a

myopic analysis the Florida Supreme Court ignored the law and

almost all of the admissible evidence, certainly the exculpatory

evidence, which establishes that Mr. Bogle’s conviction and death

sentence have been undermined: YSTR DNA evidence that two male

individuals left some genetic material beneath Torres’

fingernails on the night she was killed – but neither of those

individuals was Mr. Bogle. And, that because there was blood

beneath Torres’ fingernails, it is likely that the DNA was

obtained from a blood source; evidence that Andy had told the

prosecution that two individuals were involved in the homicide;

evidence that Guy Douglas was involved in the victim’s murder;

evidence that Malone’s testimony regarding the hair was false and

misleading; Mr. Bogle’s medical records, which include the

descriptions and diagrams of facial injuries from the car

accident a week before the crime; medical testimony from Dr.

Willey who testified that based on the photographs from the

hospital, he would not expect the wounds to Mr. Bogle’s forehead

and face to heal in seven days; evidence demonstrating the flaws

in the RFLP and STR DNA testing, including the fact that

Detective Larry Lingo inexplicably removed evidence obtained from

Mr. Bogle and the vaginal swabs to conduct “investigation” prior

to sending the samples to the FBI; clear evidence that a

Giglio violation occurred because it went unrevealed to Mr. Bogle

that law enforcement mishandled the physical evidence, including

Mr. Bogle’s pants; Patricia Bowmen’s testimony that she had

driven Mr. Bogle home from the club in the morning hours of the

13th; and Everett Smith’s testimony, which completely disproves

much of Katie Alfonso’s testimony about the “break-in” on

September 1, 1991.

CONCLUSION

Petitioner, Brett A. Bogle, requests that certiorari review

be granted.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true copy of the foregoing has been

furnished by United States mail, first class postage prepaid, to

Marilyn Beccue, Assistant Attorney General, Office of the

Attorney General Concourse Center Rd., 3507 E. Frontage Rd.,

Tampa, FL 33607, on July 10, 2020.

/s/ Todd G. Scher

TODD G. SCHER

Florida Bar No. 899641

Law Office of Todd G. Scher, P.L.

1722 Sheridan St # 346

Hollywood, FL 33020-2275

Telephone: (754) 263-2349

FAX: (754) 263-4147

tscher@msn.com

COUNSEL FOR PETITIONER

ATTACHMENT A

Bogle v. State, 288 So.3d 1065 (2019)

44 Fla. L. Weekly S327

unreliability of an FBI lab examiner's testimony

comparing murder victim's pubic hair to a pubic

hair found on defendant's pants after the murder,

288 So.3d 1065

Supreme Court of Florida.

and that it violated

Giglio by presenting lab

examiner's false testimony, were procedurally

barred when raised in successive postconviction

motion; defendant was well aware of potential

deficiencies in lab examiner's testimony long

before the release of a Department of Justice and

FBI report critical of the testimony, on which

defendant relied, and defendant thus could have

Brett A. BOGLE, Appellant,

STATE of Florida, Appellee.

No. SC17-2151

December 19, 2019

Synopsis

Background: After his convictions for murder, burglary with

assault or battery, and retaliation against a witness, and his

sentence of death, were affirmed by the Supreme Court,

655 So.2d 1103, on direct appeal, and the denial of his

initial motion for postconviction relief was also affirmed by

the Supreme Court, 213 So.3d 833, defendant filed successive

motion for postconviction relief. The Circuit Court, 13th

Judicial Circuit, Hillsborough County, Michelle Sisco, J.,

summarily denied the motion. Defendant appealed.

raised the

Brady and

Giglio claims in his

first postconviction motion, and did in fact raise

a claim that counsel was ineffective for failing to

challenge the testimony. U.S. Const. Amend. 6;

Fla. R. Crim. P. 3.851(e)(2).

[2]

Newly discovered evidence

To prevail on a newly discovered evidence claim,

the defendant must satisfy a two-prong test: first,

the evidence was not at the time of trial known by

the trial court, by the party, or by counsel, and the

defendant or his counsel could not have known of

it by the use of diligence, and second, the newly

discovered evidence must be of such a nature that

it would probably produce an acquittal on retrial.

Holdings: The Supreme Court held that:

[1] defendant's claims that State violated

Criminal Law

Brady and

Giglio were procedurally barred, and

[2] Department of Justice and FBI report that cast doubt on

FBI lab examiner's testimony did not entitle defendant to

relief on the basis of newly discovered evidence.

[3]

Canady, C.J., filed opinion concurring in result.

Procedural Posture(s): Appellate Review; Post-Conviction

Review.

[4]

[1]

Criminal Law

Particular issues and cases

Defendant's claims that State violated

Brady

by withholding exculpatory evidence about the

Newly discovered evidence

A court applying the second prong of the test for

evaluating a claim of newly discovered evidence,

which asks whether the evidence is of such

a nature that it would probably produce an

acquittal on retrial, must evaluate the importance

of the newly discovered evidence in the broader

context of any admissible evidence that could be

introduced at a new trial.

Affirmed.

West Headnotes (5)

Criminal Law

Newly discovered evidence

Even if Department of Justice and FBI report

that cast doubt on FBI lab examiner's testimony

comparing murder victim's pubic hair to a

pubic hair found on defendant's pants after

the murder constituted “evidence,” for purposes

of postconviction claim seeking relief on

Bogle v. State, 288 So.3d 1065 (2019)

44 Fla. L. Weekly S327

the basis of newly discovered evidence, the

information in the report would not probably

produce an acquittal on retrial and, thus, was

insufficient to entitle defendant to relief; report

merely amplified lab examiner's testimony on

cross-examination that hair comparisons did

not constitute a basis for absolute personal

identification, and more important evidence

supported defendant's conviction, including

DNA evidence showing his semen in victim's

body and underwear. Fla. R. Crim. P. 3.851(e)(2).

[5]

Courts

In general; retroactive or

prospective operation

Relief from a death sentence pursuant to

decisions of the United States Supreme Court in

Hurst v. Florida, 136 S.Ct. 616, and Florida

Opinion

PER CURIAM.

Brett A. Bogle, a prisoner under sentence of death, appeals the

circuit court's order summarily denying his successive motion

for postconviction relief. 1 For the reasons that follow, we

affirm the order.

FACTS

In 1992, Bogle was convicted of the first-degree murder

of Margaret Torres, burglary with assault or battery, and

retaliation against a witness.

Bogle v. State (Bogle I),

655 So. 2d 1103, 1104-05 (Fla. 1995). At an initial penalty

phase, the jury recommended death by a seven-to-five vote,

but the trial court granted a new penalty phase due to an

Supreme Court in

Hurst v. State, 202 So.3d

40, which held that facts necessary to a sentence

of death must be found unanimously by the

jury, and that the jury's recommended sentence

of death must be unanimous, is not available

to defendants whose death sentences were final

erroneous admission of evidence.

Id. at 1105. The trial

judge sentenced Bogle to death after the second penalty phase

resulted in a jury recommendation of death by a ten-to-

before U.S. Supreme Court's decision in Ring

v. Arizona, which held that a defendant has a

Sixth Amendment right to have a jury find the

statutory aggravating circumstances necessary

for imposition of the death penalty. U.S. Const.

Amend. 6.

sentence became final in 1995. 2 This Court also affirmed

the denial of Bogle's initial postconviction motion and denied

habeas relief. Bogle v. State (Bogle II), 213 So. 3d 833, 855

(Fla. 2017).

*1067 An Appeal from the Circuit Court in and for

Hillsborough County, Michelle Sisco, Judge - Case No.

291991CF012952000AHC

Attorneys and Law Firms

Linda McDermott of McClain & McDermott, P.A., Estero,

Florida, for Appellant

Ashley Moody, Attorney General, Tallahassee, Florida, and

Timothy A. Freeland, Senior Assistant Attorney General,

Tampa, Florida, for Appellee

two vote.

Id. This Court affirmed Bogle's conviction and

sentence on direct appeal,

id. at 1110, and Bogle's death

There were no eyewitnesses to Bogle's murder of Torres.

Torres was the sister of a woman with whom Bogle had

lived, and Bogle and Torres did not get along.

Bogle I,

655 So. 2d at 1105. On the night of the murder, Bogle and

Torres had been at a bar; Bogle left shortly after Torres.

The next day, Torres's “nude and badly beaten body” was

found outside the bar.

Id. Her head had been “crushed

with a piece of cement.”

Id. “Additionally, she had semen

in her vagina and trauma to her anus consistent with sexual

activity that was likely inflicted before death.”

Id. One of

the state's witnesses at trial was Agent Michael Malone, an

FBI lab examiner. Malone testified that a pubic hair found

on Bogle's pants after the murder “microscopically matched

the pubic hairs of Margaret Torres.” Bogle II, 213 So. 3d at

847. On cross-examination, Malone acknowledged that “hair

comparisons do not constitute a basis for absolute personal

identification.” Id. Unrelated to Malone's testimony, expert

Bogle v. State, 288 So.3d 1065 (2019)

44 Fla. L. Weekly S327

witnesses testified at trial and at the evidentiary hearing on

Bogle's first postconviction motion that Bogle's DNA was

consistent with DNA found in Torres's body and underwear.

Id. at 838, 846, 851.

In 2014, Bogle filed a successive postconviction motion

claiming he had newly discovered evidence of

Brady 3

and

Giglio 4 violations related to Agent Malone's hair

analysis testimony. Specifically, Bogle cited the results of a

2013 federal government review concluding that Malone's

testimony in Bogle's case overstated the reliability of

microscopic hair comparisons. The successive postconviction

motion also alleged that Bogle was entitled to relief under

*1068 Hurst v. State, 202 So. 3d 40 (Fla. 2016), and

under changes to Florida's capital sentencing statute enacted

after Hurst. In September 2017, the circuit court entered an

order summarily denying Bogle's second amended successive

postconviction motion, finding that the newly discovered

evidence claim was procedurally barred and that Bogle's

Hurst-related claims lacked merit. This appeal followed.

ANALYSIS

Summary denial of a successive postconviction motion is

appropriate “[i]f the motion, files, and records in the case

conclusively show that the movant is entitled to no relief.”

Fla. R. Crim. P. 3.851(f)(5)(B). Applying a de novo standard

of review, we find that test satisfied here, and we therefore

affirm the circuit court's summary denial of Bogle's motion.

Brady, Giglio, and Newly Discovered Evidence Claims

[1] Bogle's successive postconviction motion alleges that

the state withheld exculpatory evidence about the asserted

unreliability of Malone's testimony (in violation of Brady)

and knowingly presented Malone's “false” testimony (in

violation of

Giglio). The trial court summarily denied

these claims, finding them procedurally barred. We agree.

Bogle's claims rely on the results of a Department of Justice

and FBI review of cases in which Agent Malone had testified

about microscopic hair analysis. Released to the state in

August 2013 and later provided to Bogle, the review found

that Malone's testimony in Bogle's case “exceeded the limits

of science” in three ways: (1) by stating or implying that an

evidentiary hair could be associated with a specific individual

to the exclusion of all others; (2) by assigning a statistical

weight or probability to the likelihood that an evidentiary hair

originated from a particular source; and (3) by citing prior

cases to assign a predictive value to bolster the conclusion that

an evidentiary hair belonged to a particular individual.

The 2013 DOJ/FBI review is of no help to Bogle here,

however, because he cannot use a successive 3.851 motion

to litigate issues that he could have raised in his initial

postconviction motion. See Fla. R. Crim. P. 3.851(e)(2);

Schwab v. State, 969 So. 2d 318, 325 (Fla. 2007). 5

Bogle was well aware of potential deficiencies in Malone's

testimony long before the 2013 review (which, in any

event, on its face says nothing about what the state did or

did not know about the reliability of Malone's testimony).

In our opinion in Bogle II, for example, we noted that

“Bogle ... claims that his trial counsel was deficient in failing

to demonstrate that the hair comparison in this case was

unreliable and flawed.” 213 So. 3d at 847. Relatedly, the

record in Bogle's initial postconviction motion shows that

Bogle's counsel had received notice of the results of an earlier

DOJ review of Malone's work in Bogle's case. That 1999

review found that the lab reports of Malone's work were not

sufficiently documented to determine whether the work had

been done in a scientifically reliable manner. With diligence,

Bogle could have litigated in his initial postconviction motion

the same

[2]

Brady and

Giglio claims that he raises now.

[3] To the extent that Bogle asserts a newly discovered

evidence claim that is independent of his

Brady and

Giglio claims, that claim fails as well. To prevail on a

newly discovered evidence claim, the defendant must satisfy

a two-prong test: first, the evidence was not at the time of

trial known by the trial court, by the party, *1069 or by

counsel, and the defendant or his counsel could not have

known of it by the use of diligence; and second, the newly

discovered evidence must be of such a nature that it would

probably produce an acquittal on retrial. Duckett v. State, 231

So. 3d 393, 399 (Fla. 2017);

Jones v. State, 709 So. 2d

512, 521 (Fla. 1998). A court applying the second prong of

this test must evaluate the importance of the newly discovered

evidence in the broader context of any admissible evidence

that could be introduced at a new trial. Duckett, 231 So. 3d

at 399.

Bogle v. State, 288 So.3d 1065 (2019)

44 Fla. L. Weekly S327

[4] Even if we assume that the 2013 review constitutes

“evidence” that did not previously exist (and which Bogle

therefore could not have known about or uncovered), Bogle

cannot demonstrate that the information in the report would

probably produce an acquittal on retrial. The report does little

more than amplify what Malone already acknowledged on

cross-examination at Bogle's trial: that “hair comparisons do

not constitute a basis for absolute personal identification.”

Bogle II, 213 So. 3d at 847. And even more importantly, the

DNA evidence showing that Bogle's semen was in the murder

victim's body and underwear overwhelms the significance of

Malone's testimony that a pubic hair of the victim was on

Bogle's pants. See Duckett, 231 So. 3d at 399-400 (denying a

similar newly discovered evidence claim arising out of a 2013

federal government review of Malone's testimony); Long v.

State, 183 So. 3d 342, 347 (Fla. 2016) (same). The record

in this case conclusively refutes Bogle's newly discovered

evidence claim.

It is so ordered.

POLSTON, LABARGA, LAWSON, and MUÑIZ, JJ.,

concur.

CANADY, C.J., concurs in result with an opinion.

CANADY, C.J., concurring in result.

I agree that the order summarily denying postconviction relief

should be affirmed. I concur in the denial of Bogle's

Brady,

Giglio, and newly discovered evidence claims. I also agree

that Bogle is not entitled to relief on his

But I would deny the

Hurst claims.

Hurst claims on two grounds. First,

I would conclude that no

Hurst error occurred in this

case. I adhere to the view that

Hurst v. Florida, ––– U.S.

––––, 136 S. Ct. 616, 193 L.Ed.2d 504 (2016), only requires

that the jury find an aggravating circumstance that renders a

Hurst Claims

[5] Bogle also challenges the summary denial of his claim

that the Sixth and Eighth Amendments, together with

post- Hurst changes to Florida's capital sentencing statute,

demand full retroactive application of this Court's decision

Hurst v. State. Under this Court's precedents,

Hurst

relief is not available to defendants, like Bogle, whose death

sentences were final prior to the Supreme Court's decision

Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153

L.Ed.2d 556 (2002). This Court has repeatedly denied claims

similar to Bogle's, and we decline to revisit our precedents

here. See, e.g., Reese v. State, 261 So. 3d 1246, 1246-47 (Fla.

2019).

defendant eligible for a death sentence. See

Hurst v. State,

202 So. 3d 40, 77-82 (Fla. 2016) (Canady, J., dissenting), cert.

denied, ––– U.S. ––––, 137 S. Ct. 2161, 198 L.Ed.2d 246

(2017). Here, that requirement was satisfied because the jury's

verdict that Bogle had committed “burglary with force ...

on the victim” and her sister two weeks before the murder

established *1070 the existence of the prior violent felony

aggravator.

Bogle v. State, 655 So. 2d 1103, 1105 (Fla.

1995). Second, even if

Hurst error were present in this

case, I would still deny relief. In my view,

Hurst should

not be given retroactive application. See Mosley v. State, 209

So. 3d 1248, 1285-91 (Fla. 2016) (Canady, J., concurring in

part and dissenting in part).

All Citations

CONCLUSION

For the foregoing reasons, we affirm the postconviction

court's summary denial of Bogle's second amended

successive postconviction motion.

288 So.3d 1065, 44 Fla. L. Weekly S327

Footnotes

Bogle v. State, 288 So.3d 1065 (2019)

44 Fla. L. Weekly S327

We have jurisdiction. See art. V, § 3(b)(1), Fla. Const.

Bogle v. Florida, 516 U.S. 978, 116 S.Ct. 483, 133 L.Ed.2d 410 (1995) (cert. denied).

Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).

Given this conclusion, we need not address whether Bogle's

Brady and

Giglio claims are also untimely.

See Fla. R. Crim. P. 3.851(d)(2) (setting out limited exceptions to one-year time limit).

End of Document

ATTACHMENT B

Supreme Court of Florida

TUESDAY, FEBRUARY 11, 2020

CASE NO.: SC17-2151

Lower Tribunal No(s).:

291991CF012952000AHC

BRETT A. BOGLE

Appellant(s)

vs.

STATE OF FLORIDA

Appellee(s)

Appellant’s Motion for Rehearing is hereby denied.

CANADY, C.J., and POLSTON, LABARGA, LAWSON, and MUÑIZ, JJ.,

concur.

A True Copy

Test:

Served:

LINDA MCDERMOTT

TIMOTHY ARTHUR FREELAND

HON. MICHELLE SISCO

HON. PAT FRANK, CLERK

JAY PRUNER

HON. RONALD N. FICARROTTA, CHIEF JUDGE

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