# Opposition Brief — Dugger v. Miller

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1987
- **Citation:** 480 U.S. 901

## Text

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. 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?

(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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_0492%3A2. Public record. Not legal advice.