Opposition Brief — Dugger v. Miller

EDITOR'S NOTE ;

THE FOLLOWING PAGES WERE POOR HARD COPY

AT THE TIME OF FILMING, IF AND WHEN A

BETTER COPY CAN BE OBTAINED, A NEW FICHE

WILL BE ISSUED,

| Supreme Court. U.S.

FILED

JAN 8 1987

JOSEPH F. SPANIOL, J

IN THE ma

SUPREME COURT OF THE UNITED STATES —

October Term 1986

No. 86-1050 )

j

LOUIE L. WAINWRIGHT, etc., et al,

Petitioners

Vv.

EARNEST LEE MILLER & WILLIAM RILEY JENT,

Respondents

BRIEF IN OPPOSITION TO PETITION

FOR CERTIORARI OF RESPONDENT JENT

ELEANOR JACKSON PIEL

36 West 44th Street

New York, N.Y. 10036

(212) 575-0797

Attorney for Respondent

William Riley Jent

“S

ah

TABLE OF CASES

Case

Brady v. Maryland, 373 U.S. 83, 86 (1963)

Brolan v. U.S. 236 U.S. 216 (1915)

Conway v. Adult Authority 396 U.S. 107 (1969)

Davis v Alaska, 415 U.S. 308 315-318 (1974)

Farrell v. O'Brian, 199 U.S. 89,100 (1905)

Gardner v. Florida, 430 U.S. 349 (1977)

Lockett v. Ohio, 438 U.S. 586, 604. 606 (1978)

Malloy v. Hogan, 378 U.S.1, 8 (1964);

Mooney v. Holahan, 294 U.S. 103, 112,113 (1935)

O'Dell v. Espinoza, 456 U.S.430 (1982)

Southern Railway Co. v. Gadd 233 U.S. 572 (1915)

United States ex rel Brown v. Lane, 232 U.S. 598 (1914)

Woodson v. North Carolina 428 U.S. 280, 302 (1976)

Young v. Regan, 337 U.S. 235,240 (1949)

Page

© eee

Preliminary Statement

This is a brief in response to a Petition for Writ of

Certiorari submitted by the Attorney General of the State of

Florida to review a decision of the Eleventh Circuit which

reversed a district court denial of the Writ of Habeas Corpus to

two death sentenced prisoners convicted of murder in Pasco

County, Florida. In reversing the district court on three

different constitutional claims, the Court of Appeals remanded

the cases to the district court to apply a different legal

standard in reconsideration of these three issves.

In addition to the grand jury issue raised here, the

court below ordered the district court to reexamine its denial of

the ineffective assistance of counsel claim made by both

petitioners and as to Respondent Miller only, to reexamine

whether mitigating testimony was properly excluded from

consideration by -the state sentencing judge. The court below

further noted that there was “new activity" [a new habeas corpus

petition filed after the notice of appeal to the Court of

Appeals] which could require the district court to consider

additional issues in the light of the old issues which had been

before it. Thus there is no final ruling on any of the issves

involved, and any consideration of the claims by this Court would

be premature.

There is even a more compelling reason, however, for this

Court to deny the Petition for Certiorari because it is based on

untrue factual assertions by the petitioner.

The Claimed Issue Presented

As phrased by respondent, the issue posed in this petition

concerns the propriety of ordering a review of grand jury minutes

in camera of three eye witnesses to the murder by the district

court judge where, says respondent, "There is no Specific Claim

Before it That The Testimony Contains Material the Disclosure of

Which is Mandated by the Fourteenth Amendment or any Other

Amendment Working Through It."

As is shown in the attached Respondent Jent's Appendix (RA)

containing the relevant pages from petitioner Jent's Petition for

Habeas Corpus (RA-1-9), from his request to District Judge Carr

to reconsider the claim that petitioner was entitled to the use

of the grand jury minutes at trial (RA-11-24) and from the brief

he submitted to the Eleventh Circuit on the issue (RA-25-30), it

is clear that petitioner has attempted to mislead this Court in

posing the question. /

In his summary of his argument in his Petition for Habeas

Corpus, Jent stated:

“The petitioner was denied his right of confrontation

and the ability to fully impeach the state witnesses,

a constitutional correlary to a fair trial [citing

cases). The trial court's denial of the Motion for

Access, without even agreeing to review the

transcripts in camera, abridged petitioner's Sixth

Amendment right to confront the three central

witnesses against him...It also abridged petitioner's

Eighth Amendment right to obtain possible evidence in

mitigation of a possible death sentence.” (RA-2,3)

In the body of the Petition, Jent said:

"Petitioner thus showed a compelling need for the

transcripts of these key witnesses. He asserted that

access to them in this case was necessary to assure

rights of due process and effective confrontation of

witnesses under the United States Constitution." (RA-

6,7)

and again,

“Hubbard, Frye and Tirikaine all made prior

exculpatory statements. If these witnesses made

exculpatory statements before the grand jury, the

State had an obligation under the Fifth Amendment to

disclose their grand jury testimony to

petitioner ."(RA-9)

It is clear that Jent invoked the Fifth, Sixth and Eighth

Amendments to the Constitution in connection with his claim that

he was denied due process under those Amendments which were made

applicable to the state of Florida by the Fourteenth Amendment.

Thus the statement of the issue which asserted that neither Jent

nor Miller had invoked the "Fourteenth Amendment or any other

Amendment working through it" is in error since the claims made

here of violations of petitioner's due process rights as

expressed in the Fifth, Sixth and Eighth Amendment were such as

were guaranteed to him by the Fourteenth Amendment. See Mooney

v. Holahan, 294 U.S. 103, 112,113 (1935); Young v. Regan, 337

U.S. 235,240 (1949); Malloy v. Hogan, 378 U.S.1, 8 (1964);

Lockett v. Ohio, 438 U.S. 586, 604. 606 (1978); Woodson yv. North

Carolina 428 U.S. 280, 302 (1976); Gardner v. Florida, 430 U.S.

349 (1977); Davis v Alaska, 415 U.S. 308 315-318 (1974); Brady

v. Maryland, 373 U.S. 83, 86 (1963).

REASONS THE PETITION SHOULD BE DENIED

1. The petition should be denied because it falsely alleges that

respondents made no appropriate constitutional claim below and dia

not request the District Court to inspect the grand jury minutes

in camera.

a. Respondent Jent has set forth above the specific

references to his constitutional rights, which he claimed were

Genied to him because of his specific need for the grand jury

testimony of the witnesses who testified against him.

The Court of Appeals for the Eleventh Circuit has noted

in its opinion that witnesses testifying against the defendants

at trial had recanted their testimony since the filing of the

their appeal to that Court (A-96) giving further support to

Jent‘'s contention that adverse testimony was forced from the

unwilling prosecution witnesses and that their grand jury

testimony could give further support to this contention.

b. Contrary to the allegations of the state, that neither

Jent nor Miller "sought discovery of this material (grand jury

testimony) in the district court nor asked the district court to

conduct its own in camera review of the testimony,” Jent indeed

requested the district court to make an in camera inspection of

those minutes. Proof of this is to be found in the Respondent's

Appendix in a written Memorandum in Support of Motion for

Reconsideration (RA-24) and in allegations set forth in Jent's

brief on appeal in the Court of Appeals (RA-26,28,29). Nor is it

significant that the request may have been made only by Jent

since the cases were consolidated for hearing on the issues which

were joint and each of the convicted defendants was given the

advantage of the other's arguments where applicable (RA-31).

2. The petition should be denied because the order ot the

Court of Appeals is not a final order or disposition of the case

and accordingly, if there were an issue to be decided by this

Court, it is not ripe for review. See O'Dell v. Espincza, 456

U.S.430 (1982)

a. The case is presently pending before the district court

and that court has ordered that the minutes of the grand jury be

reviewed and is presently in the course of reviewing them. A

stay sought of this action by the petitioner in this Court was

denied as was a request to stay the mandate in the Court of

Appeals.

3. ea, Secret should be denied because the record does

not present the question the petitioner claims is before the

Court.

a. There is clear evidence that the Habeas petitioners did

make a constitutional argument before the courts below, and that

they did ask the district court to look at the grand jury

minutes of the eye witnesses in camera and thus there is

no evidence to support the question the state petitioner

here poses if arguendo it were an appropriate question for

consideration by this Court. In Conway v. Adult Authority 396

U.S. 107 (1969), this Court refused to rule on a “purely

artificial "issue and called the request to do s5o0 an

“unjustificable intrusion upon the time of this Court."

4. The petition should be denied because the issue advanced

is frivolous. Where it is clear that the issue is wanting in merit

in every respect as is clear here, this Court has not hesitated

to reject a petition or an appeal on the grounds that it is

frivolous. See Farrell v. O'Brian, 199 U.S. 89,100 (1905);

United States ex rel Brown v. Lane, 232 U.S. 598 (1914): Brolan

v. U.S. 236 U.S. 216 (1915).

Penalty Should Be Assessed against Petitioner

As has been set forth above, the petition in this case is

so utterly without merit as to suggest that it is made only for

purposes of delay and that a penalty should be imposed against

the state petitioner for misrepresenting the facts to this Court

and taking up the time of counsel and the Court in a completely

meritless cause. See. Southern Railway Co. v. Gadd 233 U.S. 572,

581 (1915).

CONCLUSION

This Court should deny the petition and enter an appropriate

order sanctioning the petitioner for the advancing of a frivolous

petition replete with misstatements of fact.

Respectfully submitted,

~

New York, N.Y. 10036

(212) 575-0797

Attorney for respondent

William Riley Jent

January 7, 1987

CERTIFICATE OF SERVICE

I, ELEANOR JACKSON PIEL, Counsel for Respondent Jent,

and a member of the Bar of the United States Supreme Court,

hereby certify that on the 8th day of Jannuary, 1987, I served

one copy of the Brief in Opposition to Petition for Certiorari on

Davis G. Anderson, Assistant Attorney General, 1313 Tampa Street,

Tampa, Florida 33602, Howardene Garrett, a istant Public

Defender, Room 202, Pasco County Courthouse, 705 E. Liveoak, Dade

City, Florida 33523, David L. Roll, Esq. Steptoe & Johnson, 1330

Connecticut Ave., M.W., Washington, D.C. 20036 and to Alan

Wagner, Esq., Carlton Fields, P.O. Box 3239, Tampa, Phaette

33601 by a duly addressed envelope with postage prepaid.

ZL

cotter on PIEL

At ne or Respondent Jent

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, i986

No. 86-1050

LOUIE L. WAINWRIGHT, etc., et al,

Petitioners,

Vv.

EARNEST LEE MILLER & WILLIAM RILEY JENT,

Respondents.

RESPONDENT JENT'S APPENDIX

Excerpts from Jent Petition for Habeas Corpus

Excerpts from Jent Memorandum in Support of

Motion for Reconsideration of Court's

Opinion and Order of April 30, 1984............. RA-11

Excerpts from Brief of Petitioner-Appellant

Jent in Eleventh Circuit Court of Appeals.......

Excerpts from Transcript of Hearing in

District Court July 18, 1984...-.cceccccccccsees

THIS IS A CAPITAL CASE

EXECUTION IS SCHEDULED FOR

7:00 a.m., TUESDAY,

JULY 19, 1983

Prisoner's Name * William R. Jent

Prison Number

Place of Confinement Florida State Prison,

Starke, Florida

N THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

WILLIAM RILEY JENT )

)

PETITIONER, )

Vv ) Civil Action

) No. 3-860 -CW-T-/3

LOUIE WAT NWRIGHT ) rar

Secretar Florida Department of )

Offender Rehabilitation )

CHARLES G. STRICKLAND, JR., )

Superintendent of Florida State )

Prison, Starke, Florida; and )

JIM HUNT Attorney General of the )

State of Florida, )

)

RESPONDENTS )

BEAS CORPUS

E CUSTODY

‘>

c

PETITION FOR WRIT OF HABEAS CORPUS

BY A PERSON IN STATE CUSTODY

SUMMARY

,.

1. William Riley Jent, petitioner, attacks the

judgment of conviction for first-degree murder and death

sentence entered against him by the Circuit Court of the Sixth

Judicial Circuit in and for Pasco County, Florida. The Court

is located in Dade City, Florida. Petitioner's execution is

now scheduled for 7:00 a.m. on Tuesday, July 19, 1983.

2. Petitioner here raises five issues under the

tion which are substantial and which have .=-—_

United States Constitu

been exhausted in the state courts of Florida:

of the State. The only direct evidence linking »etitione:

to the crime, or to the aggravating circumstances

on which the death sentence was based, came fro

those three witmesses. Both, however, hac given pri

exculpatory and other statements

$21. In these circumstances,

their teStimony at tr24

petitioner made a showing of compelling nee

transcripts. The petitioner was denied his

confrontation and the a

state witnesses, & constitutional correlary

trial. See Jencks V United States ,353 u.S. 657 (1957);

Palermo v. United States ,360 U.S 343 (1959); G lidbere V

United States 425 U.S.

———

RA-3

RE 8

denial of the Motion for Access, without even agreeing

to review the transcripts in camera, abridged petitioner's

Sixth Amendment right to confront the turee central wit-

nesses against him. See David v. Alaska, 415 U.S. 308

(1974). It also abridged petitoner's Eighth Amendment

right to obtain possible evidence in mitigation of «

possible death sentence. See Eddings v. Oklahoma, 455

U.S. 104 (1982). A new trial should be granted with

access to these transcripts.

b. The trial judge denied the petitioner the

benefit of affirmative alibi testimony by permitting a

witmess subpoenaed to a deposition to plead the Fifth

Amendment when the State had already entered into a

plea bargain with the witmess which would, upon sentence,

immunize her against prosecution. The refusal of the

court to grant petitioner continuance of the trial or

to move forward the witness’ sentence further denied hin

the affirmative testimony(as was to later appear by the

witmess’ affidavit attached to the post-conviction

collateral relief motion not before this Court at this

time) and accordingly deprived petitoner of the due

process under the Fourteenth Amendment. See Washington Vv.

Texas, 388 U.S. 14, 19 (1967), United State v. Hammond,

598 F.2d 1008, 1012 (5 Cir. 1979).

c. Prejudicial purported expert testimony on hair

analysis was permitted over objection which improperly

hA- 4

ee 1 oe

herent = RG OS a=.

[Carroll}), R 2441 [Marvin) .*

ll. ‘It was after Carroll heard on the radio the finding

of a burned girl that Carroll told Tina Marvin to "sell every-

thing we can, we're leaving" (R 2438 [Marvin]) and so they left

town a day or so later and went to Michigan in the 1967 blue

Buick Sabre which Bobby Dodd had sold to Carroll on July 12,

and Carroll had given to Tina Marvin when he returned from the

night out with Carroll (R 2443 [Marvin]),

Ruling

At the conclusion of the hearing for a new trial,

the court denied the motion in its entirety.

The Court's Findings

The judge found that aggravating circumstances

existed--the murder wes especially heinous, In making this

finding, he relied in part on evidence at petitioner's trial

that the victim, prior to being ignited, attempted to get up

and was knocked back down, as well as on evidence concerning the rape

Direct Appeal

1, Petitioner appealed the conviction and sentence

to the Supreme Court of Florida, raising several issues,

including the following:

* A milk jug had been noted at the scene where the body

was found in which traces of gasoline were found (R 1510, R 1517,

R 1534).

-16-

me vu

a, That the trial court erred by failing to

provide him with transcripts of the grard jury

testimony of three eyewitnesses;

b, It wes error to refuse a continuance to de-

fendant who sought to depose a material witmess prior

to trial, That witmess, who had an insulating plea

bargain already negotiated with the prosecutor, was

able to plead the Fifth Amendment because her sentence

was deferred until after the defendant's trial,

c, The evidence*was inherently incredible

and tue court was asked to reweigh the evidence and

enter a different verdict.

d. It was an abuse of discretion to permit the

introduction into evidence of a hair sample found near

the scene of the crime three days later on the basis

of an “expert" witness who found a similarity between

the unknown sample and a hair from the petitioner's head.

e, The court erred in refusing to bar cameras

from the courtroom at the request of the defendant's

counsel,

£. The fact that the deceased was never identi-

fied improperly subjected the petitioner to double-

jeopardy,

g. The denial by the court of the new trial

based on the newly discovered evidence was an abuse

of discretion.

“lie

ee

RE 26

Supporting Facts

“Se Petitioner predicated his detense unon the lack

of credibility of Hubbard, Frye, and Tirikaine, the three

eyewitmesses against him. Their testimony was central to the

State's case and demand for the death penalty, but all had

made unsworn and inconsistent statements to the police, includ-

ing an exculpatory statement that they had not witmessed any

killing. (R at 690, 693-94, 699, 1207-10, 1553.) All had

reason to fear that they could be prosecuted for their own

roles. (R 693-694, 1208.) Frye at one point was arrested as an

accessory after the fact, while Hubbard was in protective

custody when she first told the story she recounted at trial.

All women appeared before the grand jury under oath at a time

when the events in question were fresh in memory.

2. Prior to trial, petitioner's counsel moved for

production of transcripts of the grand jury testimony of the

State's three central witmesses, Glinna Frye, Patricia Tirikaine,

and Carlena Jo Hubbard. . (R 215-17.)

The motion cited deposition testimony showing that the three

witmesses in question had previously given different versions

of the events, and that one had acknowledged receiving promises

of leniency from the State in return for her testimony in this

case. (R 216.) Petitioner thus showed a compelling need for

the transcripts of these key witnesses. He asserted that

access to them in this case was necessary to assure rights of

due process and effective confrontation of witmesses under the

-20-

—-gasor-«

— —_.s

United States Constitution. (R at 217.)*

3. The State objected to the motion, claiming that

the defense was on a "fishing expedition" and cited the

generalized interest in grand jury secrecy. (R at 2132-35.)

During argument on the motion, petitioner's counsel requested

that the trial court at least review the transcripts in camera

before denying the motion. <R at 2130-32.) The court denied

the motion saying only that "a sufficient predicate” (showing

of need) ha? not been made. (R at 2138.)

4. The State's case on both guilt and sentencing

derived from the testimony of the two witmesses concerned.

Indeed, the aggravating factor on which the trial court based

petitioner's sentence of death under Florida's death penalty

statute (heinous crime) was supported solely by testimony from

the feo witnesses in question.

5. The Florida Supreme Court summarily affirmed the

decision to withhold the grand jury transcript ruling that

(a) the defendant had failed to lay ‘a proper predicate" .

for the testimony based on something other than surmise about

the testimony’s contents, and (b) the defense's subsequent

attack on the credibility of the State's witmesses by cross-

* Moreover, grand jury testimony in Florida differs from

other witmess statements. Like Fed. R. Evid. 801(d)(1), on which

it is modeled, the Florida statute exempts prior sworn statements

from the hearsay rule. Fla. Stat. Ann. § 90.801 (Z) (a). Thus,

prior grand jury testimony can be considered by the jury for the

truth of the matter asserted.

5

kiA- 8

RE 28

examination "obviated that need for their prior [grand jury]

testimony." Jent v. State, 408 So. 2d st 1027-28

Legal Bases for the Claim

®

6. While the Constitution may not guarantee an

ordinary criminal defendant access to grand jury transcripts of

his chief accusers, different considerations apply where the

ultimate penalty of death is sought--and where the Eighth

Amendment therefore comes into play. The wnique nature of

capital punishment imposes a correspondingly unique need for

reliability in the determination that death is the appropriate

penalty in a particular case. Lockett v.. Ohio, 438 U.S. 586,

604-05 (1978) (plurality opinion of the Chief Justice); Woodson

vy. North Carolina, 428 U.S. 280, 304,(1976) (plurality opinion

of Justice Stewart). As the Supreme Court reiterated just last

week, "[T]he qualitative difference of death from ati other

punishments requires a correspondingly greater degree of

scrutiny of the capital sentencing determination,"’ California

v. Ramos, No. 81-1893, slip op. at 5-6 (U.S. July 6, 1983).

7. These Eighth Amendment considerations apply to

the determination of guilt or innocence of a defendant charged

with a capital offense--and certainly to the proof of any aggra-

vating factor on which the subsequent death sentence is based.

Cf. Gardner v. Florida, 430 U.S. 349, 359 (1977).

8. In this case, the trial court has prevented a

defendant from presenting to the sentencer (jury and sentencing

judge) evidence potentially relevant to the other side of the

a22~

RA-9

——

RE 29

sentencing equation--the aggravating factors relied on by the

State. By erecting an insurmountable barrier between grand

jury transcripts and defendants facing a death penalty, the

Florida courts have precluded such defgndants from making one

type of challenge to the evidence asserted in support of death.

‘9. The denial to petitioner of access to the grand x

jury testimony of the State's principal witmesses also

infringes his Sixth Amendment rights. The decision in United

States v, Augenblick, 393 U.S. 348, 356 (1969) suggests that in

a proper case, the failure to produce a prior statement of a

prosecution witmess in a state criminal proceeding may violate

the Sixth Amendment. See Palermo v. United States, 360 U.S.

343, 362-63 (1959) (Brennan, J., concurring). Also, the

Supreme Court previously has held that a state's generalized

interest in the secrecy of juvenile court records does not

outweigh a burglary defendant's Sixth Amendment right fully to

test the credibility of the chief prosecution witmess. Davis

v. Alaska, 415 U.S. 308 (1974).

10. Hubbard, Frye, and Tirikaine all made prior

exculpatory statements. If these witmesses made exculpatory

statements before the grand jury, the State had an obligation

under the Fifth Amendment to discls:e their grand jury testimony

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

11. In this case the State's opposition to peti-

tioner's request for access to the grand jury transcript was

solely based on its generalized interest in grand jury secrecy,

By contrast, the defendant in a capital case has the most

~-23-

RE 30

compelling interest imaginable in testing the credibility of

the witnesses against him--his life. A holding that the

Constitution affords less protection ro a defendant in a

capital case than to a defendant indicted for burglary is

irreconcilable with Davis v. Alaska, supra,

12. Here, petitioner was denied a central weapon for

his defense: sworn transcripts of the three witnesses who

provided the only evidence linking petitioner in any way with

the crime or with the aggravating circumstance on which his

sentence of death was based, The trial judge even refused to

look at the transcripts in camera--though under Florida law the

transcripts could have been introduced at trial for the truth

of the matters asserted therein.

se & The Denial by the Trial Judge of a Continuance of the

Trial so Defense Counsel Could Take the Deposition of

Samantha Carver, a Person Identified by the Three

Testifying Trial Witmesses as Having Been Present

With Them the Entire Evening During Which the Crime

Took Place Deprived the Defendant of his Due Process

Rights to a Fair Trial

Supporting Facts

1, Defense cownsel subpoenaed Samantha Carver to a

deposition on December 13, 1979, four days before the trial of

petitioner was to commence, Since she had not testified for the

State and was supposedly present all through whatever occurred

on July 12-13, i979, he had reason to believe her testimony would

be favorable. On that same day she entered a plea of nolo contendere

pursuant to, a plea bargain which provided:

a%b«

RA-11

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

el x

| WILLIAM RILEY JENT,

Petitioner,

: vs.

|

| LOUIE L. WAINWRIGHT, et al.,

j Respondents.

eae ence reine eres 1c SCd Pe nerrE emer .

MEMORANDUM IN SUPPORT OF MOTION FOR RECONSIDERATION

OF COURT'S OPINION AND ORDER OF APRIL 30, 1984

ELEANOR JACKSON PIEL

Attorney for Petitioner

36 West 44th Street

New York, N.Y. 10036

(212) 575-0797

RA- 1 2

. appends a timetable listing of the events as "Exhibit A" to

demonstrate how this miscarriage of justice occurred.

II

This Court has Misappraised Petitioner's

Contention that He was Deprived of Due

: Process by Reason of the Court 's;Denial

é to Him of the Transcripts of the Grand

Jury Testimony.

This Court has mistakenly interpreted petitioner's

contention to be that the claimed constitutional deprivation

| involving the denial to him of the grand jury transcripts of the

three witnesses who testified against him at trial (and/or a

perusal of same by the court) is based on a "federal constitu-

‘ tional right to the discovery of grand jury transcripts”.

Throughout this habeas corpus petition, the petitioner

has affirmatively alleged under oath and with the support of

. his counsel, that the state has frightened witnesses into per-

jured testimony before the court. It is this contention that

raises this issue to Constitutional proportions, and requires at

the very least that this Court review those grand jury minutes

in camera to finally determine that these charges must be true,

based on what counsel believes to be further gross inconsistencies

in the witnesses’ first testimony under oath concerning the al-

leged murder by petitioner.

—

RA- 13

Based upon the patent inconsistencies in the testimony

of the three eye-witnesses at trial -- inconsistencies between

their prior deposition ‘testimony ten tb Glenna Frye, inconsisten-

cies between deposition testimony taken in September and then

again in December and again at trial) and inconsistencies among

the witnesses’ testimony -- it is petitioner's position that

the trial testimony was perjured _ that the perjury was solicited

by the state.” It was secured by the state by keeping all three

in "protective custody" from July 1979 through the trial in

December 1979 (a period of six months) (R 632, 643-645, 852) and

by threatening each of them with the charge of accessory to a

murder if their testimony was not satisfactory. Although this

Court has considered petitioner entitled to a hearing because of

allegations of threats to Tina Marvin and Elmer Carroll, it has

an ee? 3. 5 - ‘ower ¢ oe eee we tas

the record references at the t

not noted rial to the prosecution's

threats made to each cf the so-called three eyewitnesses: Glenna

Frye testified under oath that prior to her testimony which in-

criminated Jent, she was being held on the "criminal charge of

~

2. Moreover, this Court may take notice of inconsistencies in

the testimony of the witnesses inthe Jent trial as compared

with the testimony of some of the same witnesses at the

trial of defendant Miller whose separate trial is also before

this Court.

RA-14

accessory after the fact to a murder” (R 642). Carlena Jo

Hubbard was threatened by Detective Fitzgerald, that if she did -

not talk, "you'll be an accessory or something like that or :

something to a ourdez" (R 293).> The other detective, Jack ; ;

Armstrong, put the threats to Patricia Tirikaine, who testified

that she would be charged as an "accessory" [to a murder] if

she did not help him (R 540) . Similar threats were made to a non-

testifying witness, Samantha Carver who, because she did not

testify against Jent and Miller, was charged with the crime of

accessory after the fact to murder (CR 45, 46). See infra for

SS a. ctbentar Bites detieetniied

further discussion of this witness.

The inconsistencies in the. testimony of the three wit-

nesses, dramatically attest to the fact that they were not and

could not be telling the truth. In order to make this clear

to the Court, petitioner will here detail some of the inconsis-

tencies to show that they should have alerted the trial court to

make the grand jury testimony available to defense counsel and

should alert this Court at last to do so.

The unreliability of the testimony along with its in-

consistencies is one time more described in detail in order to

Pe The threat must be read as meaning that eac : of these women

were expected to say that Jent (or Jent and Miller) had con-

mitted this crime of murder, even if it were not true.

-10-

show this Court that availability of the grand jury minutes ~~

to show what the witnesses said in August 1979 about their memory

of what happened in July 1979 -- was crucial both to test rhe

witnesses’ veracity and to show the prosecutorial miscuonducc

which pervaded the whole state proceeding, viz-:

Even without considering the disability of these wit-

nesses -- owing to their self-confessed and otherwise established

incapacity brought on by alcoholism, drug addiction or mental ill-

ness as set forth in the Supplemental Memorandum (p.7) -- the

glaring contradictions in their testimony cast grave doubt upon

its truth and probative value. This required that the record

be searched for all their testimony given under oath. Each of

them told the police two and sometimes three versions of the

story, sometimes implicating Jent, other times attesting to his

innocence. We do not know how they handled this in the grand

jury. Each of them eventually said (it is submitted here as the

4 2)

result of threats) that Ernie Miller and William Jent, beat up

Tammy" and burned her body, but beyond those facts, they could

agree on virtually nothing.

The contradictions began from the moment "Tammy" arrived

on the scene. These inconsistencies are germane to the considera-

tion of whether any "Tammy" came to the alleged party or indeed

was ever killed by petitioner. See infra. Ms. Tirikaine swore

eile

that "Tammy" came to the Caboose Bar that night with Glenna Frye

and Ernie Miller (R 473, 474). But Ms. Frye said she never saw

"Tammy" at the bar (R £48, 649). Ms. Hubbard could not make up

her mind one way or the other (R 247, 248). And ina pre-trial

deposition, Ms. Tirikaine contradicted herself and said "Tammy

wasn't with anyone at the bar (R 749).

All three witnesses claim to have been driven by Ernie

Miller from the bar to the site where "Tammy" was beaten.

Ms. Frye claimed a man named "Johnnie" was also in the

car (R 659). Ms. Hubbard said not “Johnnie” but “George” went

with them (R 248). Both said "Tammy" wasn't in the car. But

Ms. Tirikaine swore "Tammy" was in the car (R 476). If they

actually witnessed "Tammy's" murder, which we here submit they

did not, they should have remembered if they had just been in the

car with her.

ve claimed “Tammy” arrived at the river in

white van driven by a man named "Big Bob” (R 666). Ms. Hubbard

, ‘“Tamny" until she was being beaten (R

: ehe three state ¥ tnesses mentionec abo

*

4 ‘ ca re whe erar

. tt.

rve L¢ she had never met ,acnz betore

'. % 7 +

rikaine sa hat

KAM ] 7

Ms. Frye and “Tammy” were friends (R 551).

Pat Tirikaine also said that Glenna Frye at George

| Mortola smoked marijuana on the way out to the river (R 478).

i In another contradiction, «Me. Frye testified that they had no

;

marijuana and told of an unsuccessful trip to Dade City in search

-

i of the drug (R 656, 662). _

12 . ,

i! When the group first arrived at the river, Ms. Frye

1 A :

|

said that she and Ernie Miller let the others out of the car

and went back to Miller's to take some more crystal tea (R 663,

664). Ms. Hubbard testified, however, that Miller parked the

car and everyone got out (R 251).

Once these witnesses finally agreed that they were

! all present at the river; they disagreed again. All could agree

, ~* “they had some source of lighting at the river._.Ms. Tirikaine

I “seaid it was a a fire. (R 482). Ms. Exye ents. ~~ only light was

‘aithans they had brought and spread a around @ 672, 673). Ms.

Hubbard says there was_a fire (R 247). What did they each tell

the grand jury about the visibility?’ _—_—si(‘’

Even the crucial testimony concerning the beating

differs. Ms. Frye says "Tammy" ue on the ground during the

entire incident (R 676-681). Ms. Hubbard swore that Jent and

Miller held “Tammy” up and hit her (R 260, 261). Ms. Tirikaine

=13-

=

Wis- ] 8

said “Tammy” was down on a blanket (R 489, 490). Ms. Hubbard

never mentioned seeing either man waang a stick to hit "Tamny”.

Ms. Tirikaine ‘said i oy Jent used a stick (R 500, 501). But

Ms. Frye says aes looked Sor and found a stick for Ernie Miller, *

gave dt to him and saw only Miller use it Boas 678).

‘When the group left the river, none of the witnesses

saw what happened ro the girl that supposedly had been beaten.

As they drove away, Us. Frye said the group saw the white van

she mentioned seul in ‘the mud and scopped to ‘gush it out

(R 685-687). Neither Ms. Tirikaine nor Ms. Hubbard remembered

this incident, and both claim not to have seen a white van at

all that evening (R 267, 268, 504).

All three witnesses arreed that the group went back to

“Ernie Miller' 's ones “after leaving ‘the river. But their versions

viet a 9 = —s pat “* was. so Fee 3 ee?

<=pf what -took place “there as sworn to in ‘their depositions were.

Samceéthiy. ‘éiffecent. ' What. was their testimony haters | the ‘grand

—= -~ -

jury?

Glenna Frye and Pat Tirikaine, in their first depositions

told of the group going in the house, staying there while Frye

Ms.

took a bath and Tirikaine got sick (R 688, 689, 506-508).

Hubbard testified differently -- that the rest of the group waited

in the car while Ernie Miller ran in the house to get something.

RA-19

She claimed bees entire stop lasted only "a couple of seconds"

(R 268, 2699. Almost three months later (after the Miller trial.

his conviction and the jury recommendation of life imprisonment)

two of the wares. were sworn and deposed again. This time the

stories changed. Ms. Frye told a graphic tale of "Tammy" being

‘taken from the tivek of pre car and raped by-Miller, Jent and twc

other men (R 2729). ‘Ms. Hubbard told of being in an almost

dream-like state, remembering disjointed bits and pieces. She

seemed to — what she was supposed to 5s ay, hint Ser some reason

she had difficulty with it. Specifically, she said:

"I can't say I saw all them screwing that

girl, I can't say that. . . All I can say

is that I can see flashes of it, you see

what I'm saying, just like I don't know how

to explain it (pausing) - now I can see Ernie,

you know, doing something to this girl, but

it's kind of hazy." (R 774)

Pat Tirikaine, the -—_ one of the cares to tell the

same version of the stop at Ernie’ s in ast of her “spavenents,

testified that no rape took place (R760). She was not called

as a witness in the prior Miller trial. 2

After the group allegedly left Miller's house, all

three witnesses told of driving to the Richloam Game Preserve

and there seeing "Tammy's" body burned. ‘But once again, only

some of : , ear . . P

of the crucial incriminating testimony was piven by all

-15-

three. When they arrived, Ms. Frye said they all immediately

got out of the car and followed Miller and Jent to the rear. of

“She said eae all “stood and watched as Miller lifted

the ‘car. .

: +:

“Tammy” too the ‘crunk (R 693, 694). “Ms. Tirikaine said only

Miller and Jent ‘got out of ‘the car initially. The others waited

in the car & few minutes until they saw two men carrying “Tammy”

past the car towards the front; they they got out (R 515). Ms.

*

-

Hubbard said they waited in the car a few minutes but when they

finally got ‘out, “Miller was still around back of the car (R 273).

During the first set of depositions, none of the three said

anything apout . sae hie signs of life from the body of "Tamny"

at the Game Preserve. Nor did ve ene say that Jent struck "Tamm:

there. During her second deposition, Ms. Frye testified for the

first time that "Tammy" tried to stand up just before she was

burned, and Bill Jent struck her (R 2739). Neither Ms Hubbard

nor Ms. Tirikaine, both of see stood close by, saw this event

(R 756, 793). How was this handl ed in , their grand jury testimon}

In additional testimony in another criminal case,

Florida v. George Mortola, 79-867, Glenna Frye testifi

December 19, 1979 before Judge Ray E. Ulmer at a trial in Pasco

*. : copy of Ms. Frye's testimony at this trial secured since ths

uly 12, 1983 hearing is attached as "Exhibit B" and referred

to here as "B" followed by page number.

16~

Country that the events she described took place on July 14

and that she had wisiicaaiuiualey since about then been kept’in

‘8

jail. ‘She testified at that trial that sais that morning

she went to the river with Ernie Miller, George Mortola, Bill

{[Jent], Samantha sceeweitl, 2 3. [Hubbard], Johnny [7], Ricky

[Camancho] and Patricia eeu and that she saw a girl

named “Tammy” there ho | came with “Tampa Bill" (B 4, 5). She |

saw a fight there batwnen Tammy" and the two petitioners |

(B 6).

Contrary to the testimony she had just given the day

before in the Jent. trial about the rape which followed, she said

they then went to Ernie's ener for "a short time” (B 9). There

was no mention whatsoever of the rape she had testified to on

December 18, 1979, the day before, when she said that George

Mortola was ‘the one who went “second” in the raping of ° ‘Tamny™

. = sa

(R 1660, 1651). ‘She also eiatianad ‘icttibliae aia esas” becon-

ing conscious just before she was burned and being hit by Jent

as she said it had happened in her testimony of the previous

e¢ay (R 1673, 1674), (B 10).

At the Mortola doa Ms. Frye admitted that she had

never told the state about any murder until she had been promise

a "3 ee e i. : z - :

eal" which involved immunity from prosecution and that

si?»

testimony, which rao involve still seiiotth

month after “the * event is self-evident. Against “the background

‘@olron)” (CR 2062). Holton restified’ to ‘this at: Ene: Rule

‘Detectives Armstrong and Fitzgerald had threatened her with

headlines in che: ‘newspaper "Glena Frye ‘to a @ 24).

aes a pee: aa s

eee The usefulness and: ‘materiality of the grand jury

sel eos

Lege: yeti +

er version of the facts.-

Satoe - ~~

-in order £0 show what the witnesses nate had Li aati barely a

“an

sof the: serious accusation of ‘prosecutorial misconduct, the

“a @ oe ee , 4°" ; -

- as

minutes became imperative.

=

In this connection (prosecutorial misconduct) addi-

tional evidence was adduced at the post- -trial Rule 3.850 hearing

through the testimony of Leonard Holton, petitioner's trial

lawyer, that he (Holton) was prevented from speaking with Glenna

Frye during the course of the Se by the active interference

z=

of the prosecutor' s office and a criminal threat against him

~ a

ra c i

a & : 7

3.850 penting ti ‘eurttinink part as Settee "oy a

Holton: "There was.an incident involving -Glenna

Frye. I had been given reason to believe that

she might have different testimony for us in

5. This testimony was adduced under the claim of ineffective

PH and was at least some evidence that the state had

nterfered with counsel's advocacy by threatening and attempt-

ing to intimidate such counsel.

=} Ba

Mr. Jent's trial from what she offered in

Mr. Miller's trial. [CR 1061]

“ame se

et SS ee Ae. :

I-went “to the State Attorney's office. T

don't know why I thought she was there —-

_ maybe 1 °had some information she was there .

I located her inthe. State Attorney's office

and I attempted to speak :with her. Mr. Cope,

who is one of the prosecutors in the case,

interceded .and prevented —-.in fact, ordered

me not to =speak to her, ordered me to leave

the office... ..*she appeared to be visually

upset and with the information I had received =

I thought I should try to speak with her.

[CR 1062)

ep.

ie Oh te ERASE

She was shuffled into a room in the prose-

cutor's office, the door was closed. I at-

tempted to enter the room. I was advised

not to enter the room. I was then threatened

with arrest for Trespass if I did not leave

their office at that time.

Q_ Who said that to you?

A Charles Cope [One of the prosecutors] .”

(CR 1063) ° | | Ril aloes eet tka

Counsel for petitioner submits that the above testimony

received in evidence without objection OT denial at the Rule

3.850 hearing from Leonard Holton, a lawyer and officer of the

court under oath, establishes cogent basis for petitioner's claim

of prosecutorial misconduct at the trial of the case before

the issue raised by the affidavits of Tina Marvin or Elmer Carrol)

—_. Court

to prosecutorial misconduct in itself w

RAW 24

ever got on the record. Moreover, in view of this evidence,

has .an ae to at least review the grand jury

"testimony of the -BO- -called eyewitnesseé in camera and further

to extn an additional hearing ‘to ‘determine whether that

interference with ‘cn abies of the defendant Jent in the

middle of his trial.as testified to by his lawyer did not amount

arranting a new trial for.

petitioner. This is a request that this Court reconsider

petitioner's first claim for relief and grant a hearing on the

larger issue of prosecutorial misconduct in connection with

improper pressure on the three testifying witnesses and in that

connection review their grand jury testimony as well as other j

statements taken by the prosecution and never previously revealed

to defense counsel.

. . * — ; « iil

The Prosecution's Dealing with Samantha

Carver Wanted as a Witness for the Defense

is Further Evidence of Prosecutorial Mis-

conduct.

Petitioner seeks reconsideration of this Court

cn the impro ri ° ' £ ‘ .

priety of the trial court s refusal to continue the

ia

tial in order to obtain Samantha Carver's testimony.

This reconsideration is sought in connection with

rw

—

ee

» isi,

a

m

DAM Tee Car

: rite States Omet of Appeals

For the Eleventh Circuit

_

‘

No. 85-3185

WILLIAM RILEY JENT,

Petitioner-Appellant,

versus

LOUIE L. WAINWBIGHT, Secretary, Florida Department

of Offender Rehabilitation; CHARLES G. STRICKLAND,

Jr., Superintendent of Florida State Prison, Starke, Flor-

ida; and JIM SMITH, Attorney, General of the State of

Florida,

Respondents-A ppellees.

On Appeal from the United States District Court

for the Middle District, Tampa Division

* BRIEF FOR PETITIONER-APPELLANT =<" >

(HABEAS CORPUS) qe

Exzavozs Jacxsox Pre

Attorney for Petitioner-Appellant

36 West 44th Street

New York, New York 10036

(212) 675-0797

RA-25

« tle,

An

7

TT,

Point IV

THE DENIAL OF THE GRAND JURY TESTIMONY TO DEFENSE COUNSEL

OF THE THREE “EYEWITNESSES” DEPRIVED PETITIONER OF HIS SIXTH

AMENDMENT RIGHT OF CONFRONTATION AS WELL AS HIS GUARANTEE

OF DUE PROCESS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS.

Jent's counsel made a pretrial written demand for the transcripts of

the grand jury testimony of the three eyewitnesses who had testified

against the defendant before the grand jury. Their depositions had been

taken in September 1979, a month or so after they had testified about

events which took place in July 1979.

The specific request made clear with record references to the depo-

sitions taken, the particularized need for the grand jury testimony, in-

voked the relevant Florida law on the subject (F.S. 905.27) and requested

the transcripts in the interest of the defendant's due process rignts (

This Court has had recent occasion to examine the issue and policy ©

7

in re

rand jury secrecy as it affects public policy in

Petition to Inspect Grand Jury Materials, 735 F.2d 1261 (11th

Cir. 1984). This Court made clear there that other factors in

* The request reac in pertinent part

a) On September 18, 1979, your undersigned took the deposition £

FRYE. During deposition she a@mitted to previously telling at leas

eae

< Le ad

(2) siqnificantly different versions of the happenings on the night in

estion (different than her testimony at deposition). See transcript OF

Pp tion of GLINNA FRYE, pages 63, 04, 65. GLINNA FRYE also acknowledged

_ 5

ing the beneficiary of certain promises of leniency from the state in

return for her testimony in this case.

"

SamorTreyT

b) On September 18, 1979, your undersigned took the deposition of PATRICI

TIRIKAINE. During that deposition she admitted to making previous state~

ments to law enforcement officers that were grossly inconsistent with her

of deposition of PATRICIA

testimony at the deposition (see transcript

TIRIKAINE, pages 62, 63, 65, 66).

c) On September 21, 1979, your undersigned took the deposition of CARLENA

JO HUBBARD During that deposition she admitted to making previous state~

ments to law enforcement officers that were grossly inconsistent with her

testimony at the deposition (see transcript of deposition of CARLENA JO

HUBBARD pages 68, 69, 70, 2716 72. 733

8. F.S. 905.27 provides for the disclosure of testimony of witnesses

before the grand ju for the purpose of “ascertaining whether it 1s con-

sistent with testimony given by the witness before the court” or for the

} antial

usti s case there appears a subs

these witnesses’ Grand ry testimony will differ f

) » |

Likelihood that

given tni court at triai. . —

nsur’ the defendant is accorded his rignts

§. The granting of this Motion will insure tat & :

to due process,and effective confrontation of witnesses as guaranteed by Article I,

Sections 9 and 16 of the Florida Constitution and the Fifth,Sixth & Fourteenth

Amendments to the U.S. Constitutic " (R 204

R/A- 27

the interests of justice may outweigh the long established policy of grand

jury secrecy. See Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211,

218, 219 (1979): United States = & Gample Co., 356 U.S. 677, 681,

682 (1958); United States v. Sell nagineerinc, Inc., 463 U.S. 418, 443

(1983) [disclosure permitted upon howing of particularized need]. See

United States v. ‘Luizzo, 739 F-2¢ 541 (llth Cir. 1964) [disclosure pernit-

ted under Jencks Act after testimony at hearing or trial of witness and

when so directed by court preliminary to or in connection with a judicial

proceeding where there is showing of particularized need). cf.

United States v. Baggot, 463 U.S. 476, 483 (1983) [no disclosure permitted

for a non-litigation functiog).

The showing made by Jent’s counsel involved promises by the prosecu-

tion of leniency to all the witnesses and a representation that their

versions of the event were mutually inconsistent and that each witness had

given the state different versions of the events. Thus counsel had estab-

lished a compelling and particularized need for the transcripts to assure

the rights of due process and effective confrontation. Moreover, he argued

that in a capital case his due process claim becomes even more important in

order to assure the correct imposition of the ultimate penalty. See

Lockett v. Ohio, 438 U.S. 586, 604, 605 (1978); Woodson v. North Carolina,

428 U.S. 280, 304 (1976); Gardner v. Florida, 430 U.S. 349, 359 (1977).

Petitioner argued that failure to produce a prior statement of a

witness upon request violates a defendant's Sixth Amendment right to effec-

tive advocacy and interferes with his right to adequate cross~examination.

See United States v. Augenblick, 393 U.S. 343, 362, 363 (1969); Palermo v.

United States, 360 U.S. 343, 362 (1959); cf. Jencks v. United States, 353

U.S. 657 (1957), Dennis v. United States, 384 U.S. 855 (1966).

The American Bar Association standards for Criminal Justice

(Second Edition 1982) Standard 11-2.l(iii) provides that the

56

hin 2 8

prosecutor upon request shall provide to defense counsel

"({ii) those portions of grand jury minutes containing testimony

of the accused and relevant testimony of witnesses.”

The notes on the section refer to "developments in the trend toward libera-

lizing access to grand jury minutes.” This section has been recommended by

the National Prosecutors Standards, NDAA, National Prosecution Standards

13.2(A)(3), by the National Advisory Commission Standards, NAC, Courts

4.9(2) and by the Uniform Rules of Criminal Procedure, NCCUSL, Unifomn

Rules of Criminal Procedure 421 (a).

Commencing with Alford v- United States, 282 U.S. 687, 691 (1931) and

before, courts have held that the nross-examination of a witness is a4

matter of right and a part of due process; there must be liberal lee-way

permitted to the cross-exaniner in the exercise of that right. Certainly

the prior testimony of a witness before a grand jury testifying to the same

or similar facts to what he or she will testify to at trial is relevant

data for the cross-examiner to review. There is a conflict in the law of

the fifty states as to whether the grand jury testimony of a witness at

trial is required to be turned over to defense counsel after that witness

has testified and whether 4 particularized showing is necessary before such

a rule comes into play. (See Annotation 20 ALR 3rd 1. and pocket parts for

a comprehensive survey of such rulings). Counsel asserts here that

disclosure of the testimony was his constitutional due process right.

Moreover, in the case at bar, all the witnesses testified to having

given prior exculpatory statements and had denied that a murder had taken

place. If these statements were made or suggested before the grand jury

there would be additional grouncs under Brady v- Maryland, supra. See

United States v- Bagley, __U-S-_ (July 2, 1985) for the production of that

testimony. See Galtieri v. Wainwright, 582 F.2d 348, 352 (Sth Cir. 1978 en

An adequate showing of the serious impairment of the defendant's

rights can not be made until the grand jury testimony is actually produced.

57

hy 7 2 9

Petitioner had asked the state court and the court below to review the

testimony in camera. At the very least, petitioner has a right to have a

court preliminarily review the grand jury minutes to determine whether

petitioner's speculations are correct. See United States v. Morris, 582

F.2d 436 (5th Cir. 1976).

The court below nonetheless concluded on this issue that

“... petitioner has failed to show with particularity

the usefulness or materiality of the grand jury

transcripts. ‘The prosecution stated that the

transcripts did not contain any exculpatory 4

information. The fact that the grand jury testimony

is alleged by the petitioner to contain some

inconsistencies does not without some factual

support, convince this Court that the trial court

abused its discretion in deciding not to review the

transcripts in camera" (CFH 385).

The above quotation from the court puts counsel in a Catch-22 posi-

tion. There is no way defense counsel can tell the court what details

might be found in the grand jury testimony of the alleged eyewitnesses to

the murder since that testimony is secret. It is reasonable to assume that

one serious inconsistency must appear — concerning Glinna Frye's testiiony

on the subject of the rape. Such testimony was omitted by her in her

deposition taken September 18, 1979, not mentioned at the Miller trial, but

first developed at a subsequent deposition in Jent on December 5, 1979 (R

2711-2758). She did not relate it earlier, she said, because she was

afraid (R 2750, 2751). What did she say at the secret grand jury session

where her testimony was supposedly protected?

In a record fraught with incidents of claimed prosecutorial miscon-

duct, neither court nor counsel can rely on the blanket representation of

the state attorney that there is no exculpatory information in those tran-

scripts.

Although it is misconduct for a prosecutor to fail to disclose evid-

ence favorable to an accused, in view of the secrecy here of the minutes,

petitioner may be executed with only a suspicion and in ignorance of the

58

existence of such misconduct. cf. United States v. Schaflander, 119 F.2d

1024, 1026 (9th Cir. 1983).

In this case the prior request of deferise counsel for this information

mandates at the very least, that the court examine the minutes of the

testimony of the three witnesses before the grand jury to determine in

fact, the relevance of that testimony for impeachment in cross-examinaton

and further to determine whether it is Brady material. cf. Maddox v.

Montgomery, 718 F.2d 1033 (llth Cir. 1983).

Point V

THE TRIAL COURT'S DENIAL OF A CONTINUANCE OF “HE JENT

TRIAL FOR THE PURPOSE OF DEPOSING SAMANTHA CARVER DENIED

AND INTERFERED WITH JENT'S CONSTITUTIONAL RIGHT TO CALL A

WITNESS IN HIS DEFENSE. THE COURT BELOW MISAPPRAISED

THE FACTS AND LAW IN THIS CONNECTION

To the state court on direct appeal and to the court below

petitioner contended that the trial court had abused its discretion in

refusing a continuance to defendant so that he could have the

benefit of the deposition testimony of Carver who had been nained

by all the other eyewitnesses as a person present at the scene of the

murder involving the defendants (CFH 24-26).

Petitioner also submitted an affidavit of Carver attached to his Rule

3.850 motion in the trial court supporting his request for a hearing on the

issue of prosecutorial misconduct and suppression of exculpatory evidence

(CR 83, 84). See Point II, supra.

The district court below ruled that the refusal of the state court

judge to grant a continuance of the Jent trial until Samantha Carver had

been sentenced on her nolo contendere plea (to being an accessory after the

fact to a murder, and her deposition ananinent) was not an abuse of

discretion (CFH 387).

The court correctly noted that Carver “entered into a plea

agreement with the state immediately before the petitioner's trial but was

59

Excerpt from Transcript of ii~ 31

| Hearing in District Court

July 18, 1984

3

+

5

6

24

25

sides and then if I let you reopen as to that, I will

onsidv.r it at the time. But I'm not in a position to

etermine whether the probative value of that is SO necessary

and needed so that it would outweigh many of the factors in

Rule 403 that the Court should consider.

Now, also -- let's take up one other matter. You

have not made such a motion, Ms. Garrett. Would you like to

adopt a procedure, the two of you, that you automatically

adopt any motion of the other unless you opt out?

MS. GARRETT: Yes, Your Honor, I would care to adopt

that procedure.

MS. PIEL: I concur.

THE COURT: Would you like to do the same for the

State, Mr. Anderson? ;

MR. ANDERSON: Absolutely, Your Honor.

MR. KOTLER: Yes, Your Honor.

THE COURT: All right, I will consider any objection

made by either party, since this is a joint hearing, to be

automatically adopted by the other party unless you opt out

at that time.

Now, the only other pending motion, unless you can

point out some other, is a motion made on behalf of Jent for

some sort of order of protection of the State prisoner

Carroll. Again, I'll take that under consideration at this

point and we'll see how things go, but I would not anticipate