Appendix — Steinhorst v. Florida

Supreme Court brief1997

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yy Supreme Court, U.s.

‘ FILED

97-375 SEP 2 1997

No.

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IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

WALTER GALE STEINHORST,

Petitioner,

VS.

STATE OF FLORIDA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT FOR THE STATE OF FLORIDA

APPENDIX TO PETITION FOR WRIT OF CERTIORARI

By: STEPHEN D. ALEXANDER

Counsel of Record

FRIED, FRANK, HARRIS, SHRIVER &

Of counsel: JACOBSON

WILLIAM A. MOLINSKI 350 South Grand Street

JENNIFER L. COLYER _Los Angeles, California 90071

DAVID R. BOYKO (213) 473-2000

MANDATE

SUPREME COURT OF FLORIDA

To the Honorable, the Judges of the:

Circuit Court in and for Bay County, Florida

Whereas, in that certain cause filed in this Court styled:

WALTER GALE STEINHORST vy. STATE OF FLORIDA

Case No.: 86,109

Your Case Nos.: 77-708 77-709

The attached opinion was rendered on: June 5, 1997

YOU ARE HEREBY COMMANDED that further proceedings he

had in accordance with said opinion, the rule of this Court and

the laws of the State of Florida.

WITNESS the Honorable Gerald Kogan, Chief

Justice of the Supreme Court of Florida and the

Seal of said Court at Tallahassee, the Capital,

on the 7th day of July, 1997.

/s/

Clerk of the Supreme Court of Florida

| SUPREME COURT OF FLORIDA

WALTER GALE STEINHORST,

Appellant,

VS.

STATE OF FLORIDA,

Appellee.

No. 86,109

{June 5, 1997]

PER CURIAM.

We review an order denying relief to Walter Gale

Steinhorst, a prisoner under three sentences of death.' We

have jurisdiction. Art. V, § 3(b)(1), Fla. Const.

Steinhorst was convicted on four counts of first-degree

murder and sentenced to death for three of those murders.

This Court affirmed the convictions and sentences on direct

appeal. Steinhorst v. State, 412 So. 2d 332 (Fla. 1982).

Steinhorst’s first 3.850 motion alleged, among other issues,

Brady? and Hitchcock‘ violations.

The facts and procedural history of this case are available in

Steinhorst v. State, 574 So. 2d 1075 (Fla. 1991) (affirming

denial of first 3.850 motion); Steinhorst v. State, 498 So. 2d

414 (Fla. 1986) (remanding for evidentiary hearing on first

3.850 motion); Steinhorst v. Wainwright, 477 So. 2d 537 (Fla.

1985) (denying petition for writ of habeas corpus alleging

ineffective assistance of appellate counsel); Steinhorst v.

State, 412 So. 2d 332 (Fla. 1982) (direct appeal affirming

convictions and sentences); see also Steinhorst v. State, 438

So. 2d 992 (Fla. Ist DCA 1983) (affirming order denying

motion to substitute counsel for purposes of executive

clemency application).

Steinhorst received a life sentence for the fourth murder

conviction.

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

That motion was denied following an evidentiary hearing

before Judge W. Fred Turner in 1987.5 This Court affirmed.

Steinhorst v. State, 574 So. 2d 1075 (Fla. 1991). Steinhorst

subsequently filed a second motion for postconviction relief®

seeking to have the judgment on the first 3.850 hearing

rendered null and void due to Judge Turner’s undisclosed

conflict of interest. Specifically, before becoming a judge,

Judge Turner had represented and advised the estate of one of

the murder victims. As a result, Judge Turner recused himself

from the trial of one of Steinhorst’s co-defendants, Charles

Hughes, after informing Hughes’ counsel of the conflict.

According to Steinhorst’s counsel, neither Judge Turner nor the

State disclosed the conflict. Judge Turner’s recusal order was

first discovered in 1991 during a review of the court case files

in preparation for Steinhorst’s federal habeas corpus petition.

Footnote continued from previous page

4 Hitchcock v. Dugger, 481 U.S. 393 (1987).

Judge Turner did not preside over the original trial.

° Although Steinhorst originally brought the motion pursuant to

Florida Rule of Civil Procedure 1.540, we determined on

appeal that the motion should have been treated as one

brought under rule 3.850 alleging newly discovered evidence.

Steinhorst v. State, 636 So. 2d 498 (Fla. 1994).

Judge Don T. Sirmons summarily denied Steinhorst’s

motion on procedural and substantive grounds. On appeal

Steinhorst contended that the recusal order was not found

during a 1986 review of the court case files because of clerical

errors on the part of the clerk’s office below. We held that if

the information regarding the conflict was not reasonably

available to Steinhorst and could not have been ascertained by

the exercise of due diligence, then it would qualify as newly

discovered evidence sufficient to require a new 3.850 hearing.

On the other hand, if the information was reasonably available

and Steinhorst did not move to recuse the judge, the right to

recuse was waived. Accordingly, we remanded for a factual

determination of whether the information regarding Judge

Turner’s conflict was known by either Steinhorst or his

attorney, and if not, whether the information could have been

ascertained by the exercise of due diligence. Steinhorst v.

State, 636 So. 2d 498 (Fla. 1994).

Following an evidentiary hearing, Judge Sirmons

entered an order denying Steinhorst’s motion to set aside the

3.850 judgment entered by Judge Turner. The court concluded

that while neither Steinhorst nor his attorney had actual

knowledge, the fact of Judge Turner’s recusal in Hughes’ case

could have been ascertained by the exercise of due diligence.

With respect to the recusal order itself, the court found that

Steinhorst’s lawyers and their staff simply overlooked the

recusal order during their earlier review of the court files in

1986. In support of this finding, the court noted that prior to

1988, all of Steinhorst’s and his co-defendants’ pleadings were

kept in one filing system chronologically without reference to

an individual defendant’s name. According to the court, there

was no basis to find that the relevant records had ever been

misplace by the clerk’s office.

Steinhorst contends on appeal that the court erred in

finding that the recusal order was present in the court files

during the 1986 review. At the evidentiary hearing, he

presented the testimony of Christian Cox, the paralegal who

reviewed the court files in 1986 in preparation for the

evidentiary hearing on Steinhorst’s first 3.850 motion. Cox

testified that she thoroughly reviewed the files and never saw

the recusal order. Steinhorst posits that the recusal order was

not in the files given to Cox in 1986. He argues that it was

located in the basement vault, to which, according to the State’s

witness Reena Goss Baker, employees of the clerk’s office

would not have had access. In support of his argument that the

recusal order was in the basement vault back in 1986,

Steinhorst notes that the lawyer and paralegal who reviewed the

court files in 1991 testified that they found the recusal order in

some files that had been brought up from “downstairs” after

their repeated requests for additional files.

However, there was also evidence presented suggesting

a different explanation for why the Hughes recusal order may

have come from the basement vault in 1991. State witness

Gloria Tharpe, an employee of the clerk’s office, testified that

before 1988, all of the paperwork regarding Steinhorst and his

co-defendants, known as the Sandy Creek files,’ was kept

together in a roughly chronological but otherwise unorganized

fashion. She testified that these files were kept in a file room

on the first floor next to the clerk’s office. Tharpe further

testified that in 1988, when it became necessary to prepare the

record on appeal for Steinhorst’s first 3.850 motion, she

reorganized the Sandy Creek files by separating the paperwork

according to individual defendant.

The events leading to the murders began at a site called Sandy

Creek.

Reena Goss Baker corroborated Tharpe’s testimony

regarding the location of the Sandy Creek files. She testified

that between 1985 and 1988, all the pleadings, motions, and

orders for all the Sandy Creek defendants were kept on the first

floor near the clerk’s office. She further testified that only the

State’s exhibits were kept in the inaccessible basement vault

during this time. It was only after the files were organized by

individual defendant in 1988 that the files on inactive Sandy

Creek defendants were placed in the basement vault.

When the evidence adequately supports two conflicting

theories, this Court’s duty is to review the record in the light

most favorable to the prevailing theory. Johnson v. State, 660

So. 2d 637, 642 (Fla. 1995), cert. denied, 116 S. Ct. 1550

(1996). Under that standard, we will not alter a trial court’s

factual findings if the record contains competent substantial

evidence to support those findings. We conclude that the

evidence in the record supports the trial court’s finding that in

1986, when Steinhorst’s attorneys were preparing for the first

3.850 evidentiary hearing, the Hughes’ recusal order was in the

same court file that contained Steinhorst’s paperwork. We note

that even Cox testified that during her 1986 review of the court

files, she recalled seeing documents with the names of

Steinhorst’s co-defendants. Her testimony was not inconsistent

with Tharpe’s and Baker's testimony that the pleadings of all

co-defendants were kept together before 1988.

We also find the record contains competent substantial

evidence to support the trial court’s finding that “at no time did

defense counsel seek to talk directly by letter, phone or

personally to the defense counsel who handled the Hughes case

as to what happened in that case.” The following exchange

took place during the cross-examination of Stephen Alexander,

Steinhorst’s primary postconviction counsel:

Q. Did you ever talk to any of the

lawyers in the Charlie Hughes, the trial lawyer in

Charlie Hughes’ case?

A. Mr. Daniels?

Q. Yes.

A. No, I’ve never talked to him

personally. I know that I attempted to reach him and

people on my - that working for me attempted to reach

him and I believe at the time I was told that he didn’t

want to cooperate.

Q. When was this?

A. I don’t recall specifically. Now, it

was sometime during the investigation period. We

tried to attempt to reach every lawyer that had ever

represented any of the co-defendants.

Q. All right. In the investigation period,

do you know which period you’re talking about?

A. We made an attempt to reach - and

sometimes more than one attempt to reach every lawyer

starting from when I got involved in the case probably

early in 1983, up and including two weeks ago.

Q. All right.

A. I should say just to be complete, I

personally did not talk with - Mr. Daniels, I believe,

did speak with Ms. Jacobs sometime after September

[1991].

Contrary to Steinhorst’s assertion, Alexander’s

testimony does not unequivocally establish that he or his staff

had attempted to reach Hughes’ attorney before Ms. Jacobs did

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MOB t A Manet lenin Aes BAH?

in 1991. Alexander indicated that the investigation period ran

from 1983 all the way up until 1994. He testified that he

learned that Hughes’ lawyer did not wish to cooperate after

Jacobs spoke with him in 1991. The trial court’s finding that

there was no attempt to contact Hughes’ attorney clearly refers

to the time before 1986, for that is the relevant time period for

purposes of determining whether due diligence was exercised.

It is irrelevant that Steinhorst’s counsel attempted to contact

Hughes’ lawyer in 1991.

Having upheld the trial court’s findings of fact, we

conclude that the trial court did not err in denying Steinhorst’s

motion for relief. Accordingly, we affirm the denial of

Steinhorst’s second 3.850 motion.

It is so ordered.

OVERTON, GRIMES, HARDING and WELLS, JJ., concur.

KOGAN, C.J., dissents with an opinion, in which SHAW and

ANSTEAD, JJ., concur.

ANSTEAD, J., dissents with an opinion, in which KOGAN,

C.J. and SHAW, J., concur.

NOT FINAL UNTIL TIME EXPRESS TO FILE

REHEARING MOTION AND, IF FILED, DETERMINED.

KOGAN, C.J., dissenting.

I dissent from the majority’s opinion. As I stated in

Steinhorst v. State, 636 So. 2d 498, 501 (Fla. 1994) (Kogan,

J., specially concurring), I believe that the appearance of

impropriety created by Judge Turner was so grave as to Create

fundamental error under the due process clause of the Florida

Constitution. Accordingly, I maintain, as I did previously in

Steinhorst, 636 So. 2d at 501, that a new and impartial judge

should hold a new evidentiary proceeding pursuant to Florida

Rule of Criminal Procedure 3.850 and this Court’s opinion in

Steinhorst v. State, 498 So. 2d 414, 414-15 (Fla. 1986).

In its prior decision remanding for a specific factual

determination, the majority recognized that this case raised

grave due process concerns. Steinhorst, 636 So. 2d at 500-01.

Specifically, the majority stated:

A judge who is recused from a co-

defendant’s case also must be recused from

another co-defendant’s case if the reasons for

recusal apply equally to both. There is no other

conclusion that is consistent with one of the

most important dictates of due process: that

proceedings involving criminal charges, and

especially the death penalty, must both be and

appear to be fundamentally fair. As this Court

noted in Scull v. State, 569 So. 2d 1251, 1252

(Fla. 1990):

One of the most basic tenets of

Florida law is the requirement that all

proceedings affecting life, liberty, or

property must be conducted according to

due process. Art. I, § 9, Fla. Const. .

“[Djue process” embodies a fundamental

conception of fairness that derives

ultimately from the natural rights of all

individuals. See Art. 1, § 9, Fla. Const.

Steinhorst, 636 So. 2d at 500-01. Although the majority

recognized that due process concerns existed, it concluded that

it could address these concerns only under certain limited

circumstances. According to the majority, the due process

violation could be addressed only if Steinhorst did not waive his

) claim pursuant to section 38.02, Florida Statutes (1991)* and

rule 3.850. Steinhorst, 636 So. 2d at 500-01.

The trial court, on remand, determined that Steinhorst

waived his right to recuse Judge Turner. With regard to

section 38.02, the trial court concluded Steinhorst waived his

claim because the information concerning the conflict was

. Even if Steinhorst could have waived his claim, I do not think

, that section 38.02 alone could have served as a basis for that

waiver. In my opinion, section 38.02 merely provides that,

prior to final judgment, if a defendant does not file a

suggestion for disqualification within 30 days of learning of

the particular basis for disqualification then the defendant

waives the right to raise that basis. This statute does not

provide that a waiver occurs if information regarding a basis

for disqualification is reasonably available and the defendant

fails to file, within 30 days of when that information became

reasonably available, a suggestion explaining the basis for

disqualification. 1 recognize however that section 38.06,

Florida Statutes (1991), in conjunction with section 38.02

could provide a basis for waiver if waiver was possible in this

case. Section 38.06 provides that where grounds for

disqualification as set forth in 38.02 appear of record in the

: cause, but no suggestion of disqualification is timely field, the

order entered by a judge shall be valid. Accordingly, if

. information regarding Judge Turner’s conflict was in the

record as the majority concludes it was then, according to

section 38.06, Judge Turner's order must be considered valid.

I note however that a motion for recusal may be considered

after final judgment if good cause for delay in filing is shown.

See Fischer v. Knuck, 497 So. 2d 240, 243 (Fla. 1986).

Regardless of how these statutes are interpreted, they cannot

supersede a provision of the Constitution.

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reasonably available prior to the date Steinhorst filed his notice

of appeal.? With regard to rule 3.850, the trial court found that

although the information regarding Judge Turner’s conflict was

not previously known to Steinhorst or his attorney, it could

have been ascertained by the exercise of due diligence prior to

the expiration of the time limit set by rule 3.850.!° The trial

court thus concluded that the information regarding the conflict

did not amount to newly discovered evidence which is

necessary to overcome the time limit set by rule 3.850.

The majority opinion in this case affirms the trial

court’s order and thereby recognizes, as it did in the prior

decision, that Steinhorst’s due process claim could be waived.

As indicated in my prior opinion, I believe that Steinhorst’s

particular due process claim is nonwaivable under any

construction of the facts. To hold otherwise casts upon the

defendant an affirmative duty to investigate a judge’s

background for the possible sources of conflict. See

Lightbourne v. Dugger, 549 So. 2d 1364, 1368 (Fla. 1989)

(Barkett, J., concurring in part, dissenting in part). To impose

such a duty is inconsistent with the dictates of our Constitution

which, as the majority previously recognized, requires that

proceedings involving criminal charges, especially the death

9 Again, | note that I believe it is actually section 38.06, in

conjunction with 38.02, that the trial court should have

identified as a basis for waiver See supra note |.

10 The version of the rule in effect in 1988 gave Steinhorst two

years from the time his judgment and sentence became final to

file a 3.850 motion.

Ue ee cer wren er Mee a aaa

penalty, must both be and appear to be fundamentally fair.

Accordingly, I cannot agree that Steinhorst waived his claim

that Judge Turner’s undisclosed conflict of interest required a

new 3.850 proceeding before a new and impartial judge.

SHAW and ANSTEAD, JJ., concur.

ANSTEAD, J., dissenting.

Imagine the following scenario: this Court reverses a

trial judge’s summary denial of a death sentenced defendant’s

petition to set aside his conviction and sentence, and upon

remand, the same judge conducts a hearing, but again denies

the petition. Later, it is discovered that the judge who

conducted the post-conviction proceedings had previously

served as the lawyer for the murder victim’s estate.'! Not

possible, you say? Certainly not possible in the United States

of America, right? Wrong! This incredible sequence of events

is the exact scenario approved by the majority today. We

should not be parties to such an obvious miscarriage of justice,

especially when the only remedy sought is a post-conviction

hearing before an unbiased court.

Chief Justice Kogan is obviously right when he

describes the blatant appearance of impropriety involved

here—by a judge who literally held the power of life or death

over the defendant. Here is what we said about his egregious

conflict of interest in our earlier opinion:

NM The original trial and sentencing judge in this case is

deceased.

Steinhorst calls this Court’s

' attention to a fact previously not disclosed to us.

Prior to becoming a judge, Judge Turner had

represented and advised the estate of one of the

victims whom Steinhorst was convicted of

killing. Their representation included giving

counsel to the victim’s family and _ the

possibility of pursuing a wrongful death or other

tort claim on behalf of the victim’s estate.

Judge Turner recognized the potential for

serious conflict and entered an order of recusal

in the trial of one of Steinhorst’s co-defendants.

No such recusal was ordered here, nor did the

judge notify the parties of the potential conflict,

even though the reasons for recusal applied

equally to both cases.

[I]f the relevant records were not

reasonably available to Steinhorst and the

conflict could not be ascertained by the exercise

of due diligence, then the prior recusal would

constitute newly-discovered evidence properly

cognizable in a 3.850 motion. Moreover, such

evidence would present grave due process

concerns. A judge who is recused from a co-

defendant's case also must be recused from

another co-defendant’s case if the reasons for

recusal apply equally to both. There is no other

conclusion that is consistent with one of the

most important dictates of due process: that

proceedings involving criminal charges, and

especially the death penalty, must both be and

appear to be fundamentally fair. As this Court

has noted in Scull v. State, 569 So. 2d 1251,

1252 (Fla. 1990):

One of the most basic tenets of

Florida law is the requirement that all

proceedings affecting life, liberty, or

property must be conducted according to

due process. Art. I, § 9, Fla. Const... .

“{D]ue process” embodies a fundamental

conception of fairness that derives

ultimately from the natural rights of all

individuals. See Art. I, § 9, Fla. Const.

636 So. 2d at 500-01. Recently, in Maharaj v. State, 684 So.

2d 726, 728 (Fla. 1996), we treated a similar situation as

follows:

We also find that the ethical conflict

issue in this case warrants reversal. Maharaj

alleges that he discovered only recently that the

trial judge who presided over this rule 3.850

proceeding was, at the time of Maharaj’s trial,

: the supervising attorney of the assistant state

attorneys who prosecuted Maharaj. Maharaj

contends that he did not discover this

information until he was allowed to review

portions of the State’s files. A specific

procedure does exist for moving to disqualify a

judge, Rogers v. State, 630 So. 2d 513 (Fla.

1993), but such a procedure was not followed in

this case. Nevertheless, we find that the trial

judge should have recused himself from the

entire case if he believed he was ineligible to

preside over an evidentiary hearing, regardless

of whether a motion to disqualify was filed.

Canon 3(E), Code of Judicial Conduct (a judge

shall disqualify himself or herself in a

proceeding in which the judge’s impartiality

might reasonably be questioned). Given these

unique circumstances, combined with our

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conclusions that an evidentiary hearing is

warranted on at least some of Maharaj’s claims,

we conclude that this case must be remanded for

a full review before a new judge.

We should do no less here.

THICS

Ethically, it cannot be disputed that the judge and

prosecutor had an obligation to disclose this judge’s blatant

conflict of interest as well as the fact that the judge had actually

recused himself in a co-defendant’s case because of this same

conflict. Under our Canons of Judicial Ethics, a judge is

expressly and affirmatively required to disqualify himself under

the circumstances presented here.!2 There is not one word in

~ Canon 3E(1) provides:

(1) A judge shall disqualify himself or herself in a

proceeding in which the judge’s impartiality might

reasonably be questioned, including but not limited

to instances where:

(a) the judge has a personal bias or prejudice

concerning a party or a party’s lawyer, or

personal knowledge of disputed evidentiary

facts concerning the proceeding;

(b) the judge served as a lawyer or was the

lower court judge in the matter in

controversy, or a lawyer with whom the

judge previously practiced law served

during such association as a _ lawyer

concerning the matter, or the judge has been

a material witness concerning it;

Footnote continued

Footnote continued from previous page

or as a fiduciary, or the judge’s spouse,

parent, or child wherever residing, or any

other member of the judge’s family residing

in the judge’s household has an economic

interest in the subject matter in controversy

or in a party to the proceeding or has any

other more than de minimis interest that

could be substantially affected by the

proceeding;

Bd hl Aye in ND Rac

: (d) the judge or the judge’s spouse, or a person

within the third degree of relationship to

either of them, or the spouse of such a

person:

(i) is a party to the proceeding, or an

officer, director, or trustee of a

party,

(ii) is acting as a lawyer in the

proceeding:

(iii) is known by the judge to have a

: more than de minimis interest that

: could be substantially affected by

the proceeding;

(iv) is to the judge’s knowledge likely

4 to be a material witness in the

proceeding.

Fla. Code Jud. Conduct, Canon 3E.

the majority opinion about this obligation of the judge and the

corresponding obligation of the prosecuting attorney to reveal

this conflict and the prior recusal, even though our prior

opinion specifically noted that “A judge who is recused from a

codefendant’s case also must be recused from another

codefendant’s case if the reasons for recusal apply equally to

both.” 636 So. 2d at 500-01. Similarly, there is no

explanation in the majority opinion of the source of any duty on

the part of the defendant to investigate and discover the trial

court’s conflict of interest. Indeed, the majority’s focus is

skewed by the absence of any analysis of the fundamental issue

of conflict. This is not a “new evidence” case, where the

burden is appropriately placed on the defendant. It is a conflict

case involving the fundamental integrity of the post-conviction

proceedings and our focus should be on the nature of the

conflict and the misconduct of the trial judge in continuing to

preside over the case.

In essence, our prior remand focused on whether there

might have been a waiver of the right to seek disqualification of

the judge, i.e., whether the defendant knew or had reason to

know the grounds for disqualification but failed to act. In fact,

we cited the statute which requires that disqualification be

sought within thirty days of the time that a party has knowledge

of the grounds for disqualification. Of course, for there to be

even the possibility of a waiver, there must be knowledge of

the matter waived. Yet, it is undisputed in this case that there

was no knowledge by the defendant of the judge’s serious

conflict. We are talking about a document that counsel was

totally unaware of and had no reason to know existed, much

less have reason to search for in another defendant’s papers. !3

13 To make matters worse, the testimony of the clerks at the

evidentiary hearing establishes that all the files for all the

defendants in this case were reorganized in 1988. Given that

Footnote continued

seubiiiddiiidls

YST

The “order” here was literally “a needle in a

haystack,” that we are holding voluntary collateral counsel

should have found even sooner than they did. Of course, a

defendant cannot ignore what is plainly there for him to see.

But there was nothing here for the defendant to “plainly” see.

Even under the majority’s analysis, it is apparent that the State

never refuted defense counsels’ account of how and when they

finally discovered by chance the recusal order located among

papers concerning another defendant’s case. In fact, the State

verified the incredible mess that the court files were in. In

addition, it is undisputed that the “order” in question was not

specially titled to reflect its content and was not identified on

any court docket, so as to alert a reader of its existence or

importance. The bottom line is that these records were a mess,

Footnote continued from previous page

the files have been reorganized, and do not resemble now the

state they were in in 1986 when Steinhorst’s investigator went

to the court to obtain them, there is no way Steinhorst can

even attempt to show that the recusal order was not

“reasonably available” to him at that time.

Moreover, further testimony of the court clerks reveals that

none of them can say for certain that the codefendant’s file

containing the recusal order was not in the court's vault,

which they did not have access to, such that Steinhorst’s

attorneys could not even have been given this information in

1986 when the files were requested.

and that counsel exercised great diligence in actually locating

something that they should have had no need to even be

looking for anyway— something the court and the State had a

moral, ethical and legal obligation to tell the defense about

from the beginning.

PRO BONO COUNSEL

The trial court ended up imposing an impossible

burden—if it was there you had to find it sooner or file a

motion to compel its production. Of course, Mr. Steinhorst

was on death row, completely without access to the records in

question. The due diligence demanded here was actually

imposed upon voluntary pro bono counsel. It is worth noting

that we don’t even come close to applying such a high standard

for the competency of counsel that a defendant is entitled to for

his defense. Indeed, the use of such a standard under the

circumstances here, especially for voluntary pro bono counsel,

is tantamount to a “heads I win, tails you lose” application of

the due diligence/competency standard.

CONCLUSION

This Court was concerned about both the fairness and

appearance of fairness in Maharaj, and acted without hesitation

to do something about it. Obviously, we should be even more

concerned in Steinhorst’s case, where the nature of the conflict

so fundamentally undermines the fairness of these death penalty

proceedings. What a blow to our justice system when we

TNA a as

permit a homicide victim’s lawyer to later preside over the

post-conviction judicial proceedings of the defendant.

KOGAN, C.J. and SHAW, J., concur.

An Appeal from the Circuit Court in and for Bay County,

Don Sirmons, Judge -

Case Nos. 77-708 & 77-709

Stephen D. Alexander and Lisa R. Kiebel of Fried, Frank,

Harris, Shriver & Jacobson, Los Angeles, California,

for Appellant

Robert A. Butterworth, Attorney General and Barbara J. Yates,

Assistant Attorney General, Tallahassee, Florida,

for Appellee

IN THE CIRCUIT COURT, FOURTEENTH

JUDICIAL CIRCUIT, IN AND FOR BAY

COUNTY, FLORIDA

CASE No. 77-708, 77-709

STATE OF FLORIDA, :

Plaintiff,

-VS-

WALTER GALE STEINHORST

Defendant.

THIS CAUSE came on for hearing before the

Honorable Don T. Sirmons, Circuit Judge of the Fourteenth

Judicial Circuit of Florida, at the Bay County Courthouse,

Panama City, Florida, on the 13th day of October, 1994,

commencing at approximately 9:30 o’clock A.M.

APPEARANCES:

Hon. Alton Paulk, Assistant State Attorney, P.O. Box

1040, Panama City, Florida, 32402, on behalf of the

State.

Hon. Stephen D. Alexander, Attorney At Law, 725

South Figueroa Street, Los Angeles, California, 90017-

5438, on behalf of the Defendant.

Pes ee

INDEX

INDEX OF EXHIBITS

WALTER STEINHORST

Direct Exam by Mr. Alexander

Cross Exam by Mr. Paulk

STEPHEN ALEXANDER

Testifying as a Witness

Cross Exam by Mr. Paulk

CHRISTIAN G. COX

Direct Exam by Mr. Alexander

Cross Exam by Mr. Paulk

Re-Direct by Mr. Alexander

IAN HAIGLER

Direct Exam by Mr. Alexander

Cross Exam by Mr. Paulk

ANN JACOBS

Direct Exam by Mr. Alexander

Cross Exam by Mr. Paulk

PETITIONER RESTS

GLORIA THARPE

Direct Exam by Mr. Paulk

Cross Exam by Mr. Alexander

Re-Direct by Mr. Paulk

Re-Cross by Mr. Alexander

REENA GOSS BAKER

Direct Exam by Mr. Paulk

Cross Exam by Mr. Alexander

Re-Direct by Mr. Paulk

Re-Cross by Mr. Alexander

oo ON

CERTIFICATE OF REPORTER 137

INDEX OF EXHIBITS

DEPENSE EXHIBIT NUMBER

1,2 38

3 43

4 56

5 57

6 58

STATE EXHIBIT NUMBER

1,2, 3,4 132

UE ay Wile ee Ait se ew

hag Ta Mente

he art he »

‘

THE COURT: This will be in the State of Florida

versus Walter Gale Steinhorst, Case Number 77-708 and 77-

709. And, Mr. Paulk, is the State ready to proceed?

MR. PAULK: Yes, Your Honor, the State’s ready.

THE COURT: Mr. Alexander, is the defense ready?

MR. ALEXANDER: Yes, we are.

THE COURT: And I believe we're here on an

evidentiary hearing; is that correct?

MR. ALEXANDER: That’s correct, Your Honor,

pursuant to the remand of the Florida Supreme Court.

THE COURT: Correct. And that’s in reference to an

opinion rendered April 21st of 1994.

MR. ALEXANDER: Correct.

THE COURT: All right. Are we ready to proceed

then? I believe under that mandate the defense goes forward; is

that correct?

MR. PAULK: Yes, Your Honor, it’s his motion, it’s

his petition. And I would just like for purposes of the record, I

think, hopefully to clarify the issue, and I think it’s contained in

the opinion on Page 5 of that opinion, it says: Accordingly, we

remand this cause for a factual determination regarding the

availability of the relevant records on whether Steinhorst

waived the issue of recusal. Which that’s what it was

remanded for.

So the primary issue is to determine whether this

motion is successive in that the facts on which the claim is

predicated and were unknown to movants or unknown to

movant or his attorney or could not be ascertained by the

exercise of due diligence. It’s all contained in the opinion.

And that’s, I don’t know if Mr. Alexander agrees, but

that’s what I see as the issue, is whether he’s time-barred under

3850 for the lack of exercising due diligence and that the

matters complained of in this particular motion were available

to him at the time by the exercise of that due diligence.

MR. ALEXANDER: Your Honor, while I agree that

it’s contained in the opinion on Page 5 and I think the Court

was - and the Supreme Court was very specific in terms of

what it said when it said also that the trial court determines that

quote the facts on which the claim was predicated were

unknown to the movant’s or the movant’s attorney and could

not have been ascertained by the exercise of due diligence,

close quotes, citing 3.850 B (1), then it should grant the motion

for post-conviction relief, vacate the 3.850 judgment entered by

Judge Turner to conduct new evidentiary proceeding pursuant

to Rule 3.850, in this court’s opinion, in prior Steinhorst case.

So basically what they have directed you to determine

is whether or not my client Mr. Steinhorst knew about Judge

Turner’s prior representation of one of the victims, Mr. Sims’

estate, and assuming that he didn’t know, whether or not his

attorneys, including myself, knew; and if we didn’t know, then

whether or not could have been ascertained by the exercise of

reasonable due diligence, and whether we conducted reasonable

due diligence, and we’re prepared to put on evidence to show

today that in fact we did not know, that we did proper due

diligence, inquired, asked for the record and for whatever

reasons the records were not shown to us at the time we asked

and therefore we didn’t know until it was discovered in

September of 1991, in which case we promptly filed a motion

which now brings us to this proceeding.

And unless you would like some further discussion or

argument, I'll just go ahead and call my first witness.

iia mice Neate,

eT Rm rar ton

THE COURT: Okay. I think everyone’s in line with

what the opinion says, so I think you can go ahead and call

your first witness.

MR. ALEXANDER: Okay. I call to the stand my

client Walter Steinhorst.

THE COURT: Be all right for Mr. Steinhorst to

remain where he’s at. If you would raise your right hand,

Mr. Steinhorst.

(DEPENDANT PLACED UNDER OATH)

MR. PAULK: Excuse me. Are you going to invoke

the? If not, I’m going to bring my witnesses on up here.

MR. ALEXANDER: I’m not going to invoke any

rule. I don’t think there’s anything, unless you want to.

MR. PAULK: If you could call Reena and Gloria.

THE COURT: You may proceed.

MR. ALEXANDER: Just note for the record that my

client has suffered some strokes recently, so his speech is

sometimes slurred and he has some trouble hearing and

understanding.

THE COURT: If there is a problem, we'll note that

Mr. Steinhorst is in a wheelchair and we can move the

microphone down so he can have the benefit of speaking into

the microphone.

MR. ALEXANDER: | just don’t know for the court

reporter, that’s the only thing.

(Microphone not working)

MR. ALEXANDER: Let’s just try it and see.

THEREUPON

WALTER STEINHORST

being duly sworn, was examined and testified as follows:

DIRECT EXAMINATION BY MR. ALEXANDER:

Q Mr. Steinhorst, did you ever learn that Judge

Turner had been involved in the case of Charlie Hughes?

A No.

Q Did you ever learn that fact?

A No.

Q Did there ever come a time when Ann Jacobs

told you about that?

A Yes. She told me - (inaudible words).

Q Okay, and that was a couple years ago? Okay,

Mr. Steinhorst, I’ll start again. Did there ever come a time

when you learned that Judge Turner, that is the judge that

heard your 3.850 hearing several years back, had been

involved in Charlie Hughes’ case?

Yes. Ann told me about it.

And that’s Ann who?

Ann Jacobs.

Is she in the court today here?

i Ss: Oe ee ae

I guess so.

Q I know you have a hard time seeing. He’s got

one very bad eye. And prior to that did you ever learn that,

had you ever heard that Judge Turner had been involved in

Charlie Hughes’ case?

A No.

Q Now, Charlie Hughes was tried sometime after

you were tried.

A Yes.

Q And were you brought over here at the State’s

request for Mr. Hughes’ trial?

A Yes, I was.

Q Did you ever actually attend the trial?

A No.

Q You were in the jail.

A Yes.

MR. ALEXANDER: Okay. I have no_ further

questions.

CROSS EXAMINATION BY MR. PAULK:

Q ] just have one. The lady that you said Ann,

what was her last name?

A Jacobs?

Q Jacobs. When was it that she informed you

that Judge Turner had recused himself; do you remember?

A Couple years ago.

Q Okay.

A Told us about it.

MR. PAULK: All right. I don I t have any other

questions.

THE COURT: Okay. Thank you.

MR. ALEXANDER: Your Honor, I would request

that the Court take judicial notice of the fact, in fact the State

will also stipulate to it, that Judge Turner was not in fact the

trial judge for Charlie Hughes’ case.

MR. PAULK: That’s correct.

THE COURT: And the Court will take notice of that

fact.

MR. ALEXANDER: Okay. I call as my next witness,

Your Honor, myself. And I have previously asked Mr. Paulk

if I need to bring down another lawyer to examine me and he

said that under the circumstances he would waive that

formality.

THE COURT: All right.

THEREUPON

STEPHEN ALEXANDER

being duly sworn, testified as follows:

MR. ALEXANDER: I’ve never testified before in any

proceeding, although I have examined a lot of witnesses, this is

the first time. And without asking questions I’ll do it kind of as

a narrative, if that’s all right with the Court.

THE COURT: All right.

MR. ALEXANDER: I became involved in

Mr. Steinhorsts’ defense in 1982, in the fall of 1982. I was

asked technically by the Legal Defense Fund in New York, my

firm was, if we would represent some inmates on death row in

Florida in connection with their clemency hearings. And in

Florida you have a right to clemency and a right to an attorney.

And at that time there were a number of people on the public

defender’s office was, had conflicts plus getting Florida

attorneys because of the number and the commitment, so they

had asked lawyers from New York and in fact the request had

come from then Governor Graham’s office.

In 1982 together with some associates and paralegals

from my firm we began investigating the facts, what are the

facts involved in Mr. Steinhorst’s case. Between 1982 and

1986, when we filed 3850, which then became a subject of

Judge Turner’s decision and ultimately this motion, I personally

made several trips to Florida as well as with particular Wynn

Sider (phonetic), who was associate with me at that time

working on this case, and among other things we interviewed

Mr. Steinhorst, we interviewed his former attorney Cliff Davis,

we reviewed and obtained Mr. Davis’s files, we went to the

Florida Supreme Court and reviewed the record there.

We went to the federal court because there was a prior

federal proceedings and trial that preceded the state court trial

and reviewed the records there and obtained records there. We

came to Bay County and asked to see the files here in Bay

County related to tlis matter. We went to the state attorney

general's office and asked to see files there. We filed a

Freedom of Information Act with the FBI because the FBI had

been involved in the investigation and indeed the FBI had been

involved in the so-called sting operation that set up the Sandy

Creek drug smuggling, although they had failed obviously to

execute the bust and therefore the bugging operation went

forward.

We filed a request under Florida state law, various

government and law enforcement agencies, including I believe

the FDLE. Obtained records from that. Attempted to obtain

records from the state attorney’s office, but at that time they

weren't Cooperative.

We attempted to interview various witnesses and

investigators. We also attempted to get and in some cases we

got cooperation from some of the lawyers and some of the co-

defendants and other people involved in either the federal trial

and/or the state trial.

And during that period of time, as I say, we made what

I considered to be a thorough and diligent search of various

court records and filings to get information related to

Mr. Steinhorst’ case.

Additionally in connection with is clemency, which we

filed with Governor Graham, was heard by Governor Graham,

and secondly, a habeas proceedings which we filed directly

with the Florida Supreme Court. We had probably more than,

although I don’t purport to be an expert in death penalty cases,

haven’t handled as many as some others, but we had an

extraordinary amount of time conducting investigation because

initially Our appointment as counsel, clemency counsel for

Mr. Steinhorst was opposed. And indeed the judge, and |

forget his name, may be still on the bench, appointed Dedee

Costello, who was then in private practice, she’s now a judge

of this court, as clemency counsel and the intermediate circuit

court when we appealed that said that we could be co-counsel,

SO we were co-counsel with Ms. Costello.

Well, at the time when I learned in September of 1991,

and I'll get to how that came about from Ann Jacobs, about the

orders that had been filed in Judge Turner’s representation and

recently I re-examined the files that we maintained in this

action to see if there was any record that we had seen or been

given a copy of the order of disqualification and there was

none. And there is none. We did not get that order nor did we

know about that order prior to Ann Jacobs telling me in

September of 1991.

In February, I believe, if memory - we filed a 3850

petition in this court. We heard no response, received no

response from the State - There was no response received from

the Court until in November of 1991, and this I remember very

clearly, Your Honor, because this is my first and only death

penalty case, I received a call in my office from a newspaper

reporter in Florida who informed me that a warrant had been

signed for Mr. Steinhorst’s execution.

I’ve been practicing law for sixteen years and I

remember hearing that. And I was shocked. Because we had

pending 3850, we heard nothing from the Court, and I asked

him how that could happen and he read me a press release that

had been issued by Governor Graham and it said that the Bay

County Court had denied Mr. Steinhorst’ 3850 and that was the

first time that I ever knew Mr. Steinhorst’ 3850 had been

denied.

Needless to say, after 1 recovered from my surprise in

learning that my client’s 3850 had been denied and I never

received notice of it and that there was a warrant for his

execution, I believe it was for the Tuesday following

Thanksgiving, I got on the phone with CCR. That’s an

organization here that had been formed by statute to assist

death row inmates in a post-conviction proceeding and they had

been involved in the case as sort of local counsel assisting me.

1 was then in New York practicing in New York at that time.

As to ascertain if they knew about this or could find out

anything avout it and they were in shock, and at that time,

several conference calls, we instructed one of their

investigators, paralegals, Christian Cox, to come over here to

the Bay County Courthouse to see if we could find this order

that had been entered by Judge Turner denying Mr. Steinhorst’

3850. And Ms. Cox did come over, she reported. She asked

to examine the files and she will testify later. And after some

search, this order was found and there was absolutely no record

in the file that Judge Turner or whoever was responsible, be it

his clerk or the clerk’ s office, had ever served a copy of the

order on either myself or for that matter the state attorney’s

office, Mr. Paulk stipulated at a subsequent hearing that they

did not receive notice of it. Nor pursuant to the statute itself

had it been served on my client Mr. Steinhorst.

With a warrant for my client’s execution I spent the

next twenty days literally twenty-four hours a day together with

others at CCR and the whole team of attorneys that I assembled

from my firm, filing papers, we had papers on file all the way

to the United States Supreme Court as well as conducting

investigations in looking for, you know, every which way we

could to get Judge Turner’s decision overturned.

That was the first time that I had heard that Judge

Turner was in fact assigned to this case. One of the avenues of

investigation was since we found out that he had summarily

denied it without any kind of hearing, without any kind of

argument, without any kind of response from the State, was a

concern whether or not there was some way in which we could

get Judge Turner to recuse himself or got him removed from

the case.

In addition to talking to the attorneys, including

Mr. Spaulding and others, at the CCR and finding out about

Judge Turner, and I will say candidly the information |

received concerning Judge Turner and his reputation and his

background was not favorable and certainly not the type of

judge that | would want to have by any choice to hear

Mr. Steinhorst’s case. And indeed I spoke to at the time Ms.

Costello, who then was a judge, she couldn’t hear the case and

she had been co-counsel with us.

And Ms. Costello among others also advised me that

Judge Turner was not a judge that if I had my choices I should

want, if there was any way she could suggest, I asked her if she

know of anything of the grounds, she didn’t know of anything

at that time. She did tell me I think she had actually reported

as had a run-in with Judge Turner and I think she made a

report to whatever judicial commission and I read some reports

about him elsewhere, probably not relevant for purposes of this

hearing. But in any event, Ms. Cox came over and looked at

the file. What was reported to be the entire file.

Subsequently because she was concerned that parts of

the file were missing, including for purposes of the then

pending motion or then legal proceedings we were attempting

to get Judge Turner’s decision overturned and the warrant

stayed, discovered that significant portions of the file, including

the transcript, record of the case, were not in Bay County.

They had been sent, and by that | mean record of and I guess to

use the word the case here loosely, but I was referring to the

record of Mr. Steinhorst’s trial. The case Number 77-708, so

far as I’ve been informed and be able to ascertain were

numbers that was used for all the various trials and proceedings

here including the subsequent trial of Charlie Hughes which

occurred in 1981, which was about three, four years after

Mr. Steinhorst’s trial in 1978, ‘77, ‘78.

In any event when we learned that the record was not

here and thus Judge Turner could not have even looked at the

record, which was what was at issue at the time when he did it,

sent another investigator, paralegal, over to re-examine the files

and ascertained that in fact after questioning and after asking

the clerk to look everywhere that he could think of that it was

not there, I believe again the State, Mr. Paulk will correct me

if I’m wrong, later conceded that it was found by the Florida

Supreme Court, that the record, including the transcript, all the

stuff with all materials related to Mr. Steinhorst that went up to

the Florida Supreme Court were not in Bay County. And the

Florida Supreme Court ultimately prior to Thanksgiving stayed

Mr. Steinhorst’ execution, reversed and remanded what was

technically Mr. Judge Turner’s second decision, because at my

request he did vacate the initial decision and then instantly

reinstated it by, therefore giving us the right to appeal since we

had gotten no notice.

Clearly, Your Honor, I can state unequivocally that had

I known and had any of these investigators brought to my

attention that in addition to not giving us notice, to not reading

the record, Judge Turner had what the Florida Supreme Court

said was a Clear conflict. I would have used that because my

client’s life was literally at stake in a matter of days. I did not

know and that had not been brought to my attention.

Following the, Florida’s remand, we had an evidentiary

hearing. Mr. Paulk actually examined all papers and files, part

of that. And after Judge Turner again denied the motion and

went up to Florida Supreme Court, it was affirmed. We began

preparing and at that point the Volunteer Lawyers Resource

Center, which is funded in part by the federal government and

assists again volunteers, pro bono attorneys such as myself in

death penalty cases, particularly in connection with federal

proceedings, that’s their primary mandate, became involved in

the case and we began preparing our federal habeas petition,

which was in fact filed in federal court and it was in connection

with that that Ann Jacobs and lan (phonetic) Haigler came over

as part of again a rereview, and we have periodically again

updated our investigation and done additional investigation,

because periodically people call us among other things and say

they have information, sometimes it turns out to be useful,

sometimes it doesn’t. This case has had a lot of notoriety, lot

of publicity, and we re-examined the files and we did that, (a)

because we were preparing that, and (b) because when we re-

examined the files there are new things there, sometimes there

have been in fact subsequent habeas proceedings which have

been filed including David Goodwin went through a whole

habeas proceeding not too long ago here.

So we always examine the files. Sometimes some of

the lawyers, for example for Mr. Goodwin, have been

cooperative and some of them haven’t been cooperative with

us. He’s had different lawyers at different times. And it was

in connection with that review conducted by Ms. Jacobs, and

she will testify as to what happened, that she discovered that

Judge Turner had recused himself in connection with Charlie

Hughes’ case and brought that to my attention.

And we immediately filed the papers here. And that

was the first time that I or anybody involved in Mr. Steinhorst’

defense knew of Judge Turner’s recusal and his representation

of the Sims’ estate.

I have nothing further to say on the subject.

THE COURT: Mr. Paulk.

MR. PAULK: Thank you, Judge.

CROSS EXAMINATION BY MR. PAULK:

Q Mr. Alexander, let me just get some times

sequence. As I understand your testimony, you were - you

became involved in the defense of Mr. Steinhorst in 1982.

A Yes, in the fall, about October, November.

Q All right. And --

A Been a long time. Lot longer than I thought it

was going to be.

Q And when did you file his first post-conviction

relief motion? Was the one in 1986 the first one?

A Well. we filed a direct habeas to the Florida

Supreme Court in 1983. And | think it was towards the and of

1983. because it wasn’t until sometime towards the end of 1983

that the District Court of Appeal had decided the issue on

representation.

Q And the habeas in 1983 to the Supreme Court,

do you recall what the basis for that was?

A Well, as usual it was about fifty different issues

that we raised, but the principal one and the principal reason

for being in the Florida Supreme Court was ineffective

assistance of counsel in connection with his direct appeal.

Q Okay. But not ineffective assistance 20 of

counsel at trial.

A I’ m sure that was mentioned in the brief, but

the principal focus and basis for our alleged jurisdiction was in

connection with the appeal and failure to effectively argue and

raise On appeal various issues

Q All right. And you filed, you personally filed,

you don’t know if anybody filed prior to 1982 any 3850s.

A Not to my knowledge, and certainly there’s

none been reflected in the file here. They would have to be

filed here.

Q Okay. So 1986, do you remember what month

that was in 1986 you filed --

A I believe it was February.

Q All right. And that, I believe, was after the

death warrant was signed by the governor --

A No.

Q -- Steinhorst?

A No.

Q It was not?

A No, it was filed before, and the death warrant

was signed by the governor in November after Judge Turner

had sometime in March summarily --

Q That’s what I’m trying to get straight. You

filed in February of 1987 a post-conviction. . .

A February, 1986.

Q Yes, I’m sorry. I’ m not trying to mislead you.

Okay. And that sat until Judge Turner denied it, which you

subsequently found out, when did he deny it?

A I believe and it’s in the record, in March, it

was like a month or so after it had been filed.

Q Okay. It was filed in February and March it

was denied. When was the governor's death warzant for

Mr. Steinhorst signed?

A I believe it was in the first week of November.

Sometime around the sixth or seventh of November.

Q Same year. Okay. And I believe you indicated

you scrambled around, Judge Turner then - what kind of an

order did he re-enter then?

A We came down here, that’s when I first met

you.

Q Okay.

A And I made a request that because there had

been no notice that he vacate his order, which he did. Because

otherwise we would have had to have gone by mandamus

because the order had been, the origina! order had been signed

it March and the time for appeal had expired.

Q He vacated and set aside his order.

A He vacated and set aside his order --

Q -- Opportunity so you would have a right to

appeal it direct.

A Right, and then --

Q Then he denied it again.

A Denied it again.

Q Okay. And he denied it then, I believe you

appealed with, what, First District Court.

A No, appealed it to the Supreme Court.

Q Okay. And was that in the same year or was

that in --

A That was in November, which was in - I think

we filed - well, we had the appellate papers ready before . . .

Q That’s when the record on appeal was prepared

and sent somewhere around --

A No, my understanding again from the - was

that the record on appeal from his direct appeal was prepared

in ‘78 and sent up and his direct appeal was heard and was

decided in 1981, before I got involved.

Q I’m talking about the record on appeal of the

judge’s denial of the 3850.

A Oh. Yes. That record on appeal was...

Q Immediately done; right?

A Yes, that record consisted of about a twenty

minute transcript and the 3850 and the two orders.

Q All right. And I believe the Supreme Court

stayed execution at that time?

A Right.

Q And remanded back for an evidentiary hearing.

A As I recall, it was - I think it was heard on

Monday. I remember it because we had big Thanksgiving

plans and everybody was assuming I was going to be in Florida

or in United States Supreme Court on Thanksgiving weekend

and it was heard I believe on Monday prior to Thanksgiving

that year.

Q But the Supreme Court stayed execution.

Directed tat Judge Turner hold an evidentiary hearing.

A Right. Reversed and remanded.

Q And that then led us, I believe, to an

evidentiary hearing back in September of 1987.

A Correct.

Q Now, you indicated that - all right, after this,

you felt like and you did an investigation apparently after 1986,

an investigation concerning Judge Turner.

A I did an investigation in November of 1986

with respect to Judge Turner because I wanted every item |

could have for the Florida Supreme Court to get the warrant

executed and Judge Turner’s decision overturned.

Q So at least in November of 1986 you realized

he was a judge you did not want to have on your case if you

could find a legal reason io got him off.

— russ emanated a ee

A That’s correct.

Q Okay. Now, from November of 1986 until the

evidentiary hiearing in 1987 - would you agree that until 1986 it

wasn’t material or Judge Turner’s being the judge did not

become material until then.

A Not until November when we found out - that

was the first time that we found out he was involved in the

case, correct.

Q But it would continue to be material as long as

he was on the case.

A That’s correct.

Q All right. November of 1986, what records did

you check to determine any cause or - well, let me, what

records did you check after November of 1986?

A In November of 1986, as I said, I instructed

through CCR their investigators to come over here and review

the records concerning Sandy Creek trial. Now, we weren’t

focusing on Judge Turner. We were focusing on Judge Turner

because one of the principal things we were looking for was

this mysterious order that we had never seen that he signed and

whatever else he might have done in the case.

Q And the mysterious order you're talking about

is which one?

A The order that is --

Q Denying the 850?

A Yes.

Q Okay.

A That we never received. That you never

received.

Q Not the mysterious order that you never saw

concerning his recusal.

A Right. We didn’t know of the existence of that

order.

Q All right. Do you know how often between

November, 1986, to September of 1987, when we had the

evidentiary hearing that CCR - we're talking about capital side

of the original trial?

A Correct.

Q Do you know how many times they sent

personnel over here to look at the quote Sandy Creek file?

A Well, in November they sent two different

people over here in that two week period from say about

November 6th through about November 20th. I had people

from my staff attorneys working with me over here since we

had a hearing here. And I know we arranged for, as you

pointed out, and had the record on appeal sent up.

Q Tee's...

A CCR, after the Florida Supreme Court decision

and prior to the September hearing, I don’t know, I have no

record or no recollection that they sent somebody else over

here, here to Bay County, to look at the records.

Q That’s what I’m talking about.

A Yeah.

Q Okay.

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May have sent people over here to file things,

Okay.

Although I filed most things directly.

The - there were affidavits filed with the, this

most recent 3850 where you raised the grounds that Judge

Turner should have recused himself or that the, the issue we’re

on here.

-. £2: we fe ae

testify?

Correct.

Affidavits from Christian G. Cox.

Correct.

And also Mr. Haigler.

Correct.

And Mr. Haigler is here present to testify.

Correct.

Thank you. Christian Cox. Is she here to

Yes, she is.

Okay. Are those the two people that you sent

over here between November of 1986 and September of 1987

to look at the file?

Right. In November, yes.

Sent them over between November 6th and --

A Approximately November 20th or thereabouts.

It was right before Thanksgiving.

Q All right. And that was in the year of 1986?

A Correct.

Q Okay. You sent them back or did they come

back over or do you know, I know they’re here to testify, do

you know if they came back anymore after that?

A I don’t believe that they came back after that to

look at Bay County records.

Q Okay. The next time somebody came to look

at Bay County records was in 1991, when Mr. Haigler came

over?

A Along with Ms. Jacobs.

Q Along with Ms. Jacobs. Okay. And I believe

you attached in the, the present 3850 you attached a copy of the

order of recusal.

A Correct.

Q Okay. And when was that petition filed? |

know it’s reflected in the record, but what is your recollection?

A It was in, I believe, the first week of October of

1991. 1 have a copy of it here if you want me to look for it.

Q That’s close enough. Okay.

A You were asking me before what else | did in

reference to Judge Turner. I told you about Bay County and I

previously testified in addition, you know, we asked people,

you know, if there was a basis or if they know of anything, we

also got some decisions that he had written in I believe it was

in September.

1991,

> kL

either the Florida Supreme Court or judicial commission,

information on some investigations, and we were also aware

from - either somebody told us or we got a newspaper article

that he had actually been in prison and was pardoned by

Richard Nixon, I believe for income tax evasion.

From September of 1987 until October of

1991, the - Ms. Jacobs and Mr. Haigler were the only ones that

came over, to look at the file?

Yes. At least on - as part of my...

How many times do you recall?

How many times did they come over?

Yes. Between September of 1987 and --

I’m only aware of the time that they came over

Okay.—Well, they-came-over_in-September of

Right.

Okay. That was when they found the order.

Right.

I'm just trying to get some time sequence

straight. Did you ever talk to any of the lawyers in the Charlie

Hughes, the trial lawyer in Charlie Hughes’ case?

Mr. Daniels?

Yes.

A No, I’ve never talked to him personally. |

know that I attempted to reach him and people on my - that

working for me attempted to reach him and I believe at the time

I was told that he didn’t want to cooperate.

Q And when was this?

A I don’t recall, specifically. Now, it was

sometime during the investigation period. We tried to attempt

to reach every lawyer that had ever represented any of the co-

defendants.

Q All right. In the investigation period, do you

know which period you're talking about?

A We made an attempt to reach - and sometimes

more than one attempt to reach every lawyer starting from

when I got involved in the case probably early in 1983, up and

including two weeks ago.

Q All right.

A I should say just to be complete, I personally

did not talk with - Mr. Daniels, I believe, did speak with Ms.

Jacobs sometime after September.

Q Okay. And is Ms. Jacobs an attorney?

A Yes, she is.

Q Was she an attorney back in ‘82 to ‘91?

A I believe so, but you'll have to ask her. |

believe so.

Q When you talked about back in the time when

you had - you referred to transcripts and records of trial in

Charlie Hughes, excuse me, in Steinhorst case. The time

frame you were talking about that you discovered that the trial

transcript was not in Bay County, that would have been in

March of ‘86 when Judge Turner had denied the motions,

3850.

A Well, we discovered that fact in November of

‘86.

Q: During that period of time.

A And I think it was later ascertained that it had

never been returned from the Florida Supreme Court.

Q The question I’m asking you is that was the

trial transcript; is that correct?

A Well, it was the trial transcript and the other

materials that were part of direct appeal record.

Q That’s what I want to know. What materials

are you talking about? Talking about pleadings in the court

file?

A I don’t have a photographic memory of

everything that was part of the direct appeal record. But it

certainly included the transcripts and I believe there were some

other documents and exhibits that were part of beyond just the

trial transcripts themselves. But I don’t remember specific

piece of paper.

Q Okay. You're aware of the distinction between

trial transcript and the record on appeal prepared the clerk here

locally in Bay County, or are you?

A I’m aware that they are documents. They’re all

part of what I believe is referred to by the Florida Supreme -

well, depending on parties designating the record on appeal.

Q All right. Did you ever personally see any of

the records on appeal over in the Supreme Court?

A Yes.

Q And let me ask, the trial transcript, that is the

question and answers of the trial that was done prior to ‘82,

that was in the Supreme Court.

A That’s what I’m told.

Q All right. What I’m asking is your knowledge.

A Did I actually see the trial transcript at the

Florida Supreme Court?

Q Right.

A I can’t say for sure I remember actually seeing

it. I know we went to Florida Supreme Court and I saw

records there. I got copies of the trial transcript, the questions

and answers, from Mr. Davis. So if they were there when I

went over there, all I would have done was check to make sure

that the same volume, looked at the index. I wouldn’t have

reread them.

Q Have you checked the Bay County records

since 1991 to determine whether or not the trial transcript has

ever been returned back to Bay County?

A No, as a matter of fact I haven’t.

Q Are you aware that trial transcripts are seldom

sent back to the court originating?

A As you know, I don’t practice here, so I don’t

know what the, if that’s a fact or if that’s customary, if that’s

the practice or not. I do know that the Florida Supreme Court

when it remanded, I think strongly implied, if not said directly,

that they thought that the Judge Turner should have reviewed

the trial transcript and that it would be relevant and said he was

going to. I believe that in fact he never did. but . . .

Q That’s not my point. My question is, do you

know if the Supreme Court ever sends routinely the trial

transcript --

A I don’t know if - I’m not an expert, I don’t . .

practice of Florida Supreme Court is with respect to trial

transcripts, if there is such a practice.

I guess I can object to his questions of me;

right?

MR. PAULK: And I don’t think I have any other

questions of this witness.

THE COURT: Anything further?

MR. ALEXANDER: Next, and I’ve’ spoken to

Mr. Paulk before rather than calling him to the stand because

he’s informed me before - (inaudible word) - I would like the

record to reflect thac Mr. Paulk during the time of the

proceedings and he was counsel for the State during the 3850

before Judge Turner, did not personally know Judge Turner's

conflict.

MR. PAULK: That’s correct, Judge, | did not.

MR. ALEXANDER: And | also would --

MR. PAULK: Well, suggest the words conflict, that

he had recused himself in the Charlie Hughes case.

MR. ALEXANDER: Well, the Florida Supreme Court

already determined the conflict.

MR. PAULK: I was not personally aware nor had any

knowledge that Judge Turner recused himself in the Charlie

Hughes trial, criminal case.

MR. ALEXANDER: I also said that I would be

prepared to subpoena and bring over Mr. Appleman, who was

the state attorney at the time, that was involved in the trial of

Mr. Hughes to establish the fact and the fact the state attorney’s

office did know of this fact. Will you also stipulate to that?

MR. PAULK: I wiil stipulate Mr. James Paul

Appleman, who is the state attorney for the Fourteenth Judicial

Circuit, and John Harrison, who is no longer with the state

attorney's office, were the trial counsel in the Charlie Hughes

case and that both of those individuals were aware that Judge

Turner had recused himself.

e MR. ALEXANDER: And it is also a fact that during

the entire time period prior to our discovering the following

motions nobody from the state attorney’s office ever informed

either, any of the defense counsel of this fact.

MR. PAULK: I have no problem with that stipulation

either. Because I think I am the only one that- worked with

defense counsel during the period of time of 3850 evidentiary

hearing.

da nal hota

MR. ALEXANDER: And also --

MR. PAULK: Somewhere around November, 1986,

somewhere along in there.

MR. ALEXANDER: In an effort to make the record

clear and perhaps save the Court some time, I think we can

; stipulate that since we were both present for all the proceedings

that Judge Turner never raised the issue himself.

MR. PAULK: I think the record will reflect that and I

/ will so stipulate.

MR. ALEXANDER: Okay. Next I would like to have

entered in evidence, although they are actually probably part of

the record here, and I don’t know what your procedure for

marking, the two orders that are in the file. You want to mark

them as. . .

THE COURT: Defense exhibits.

MR. ALEXANDER: Defendant’s Exhibit 1 and 2?

THE COURT: 1 and 2.

MR. PAULK: (Examining) Judge, they’re in the file.

I was going to have them pulled - pointed out in the file. |

have no objection to them --

MR. ALEXANDER: .. . shown the witnesses and

other things will be part of the record. I know they are part of

the record.

MR. PAULK: Yes. They’re part of the Bay County

court files. May not be a part of the record selected to go on

appeal.

MR. ALEXANDER: Right, that’s why I wanted to

get them, unless you’re going to put the entire file in.

MR. PAULK: Well, I probably will. I don’t know

that we'll mark them as evidence and keep them in a vault

somewhere, but the pertinent records I would intend to have

marked and they can be maintained | guess as a regular part of

the clerk’s system.

I have no objection to these, Judge, if he wants to put

them in individually.

MR. ALEXANDER: One for you and then...

THE COURT: All right. We’ll mark those as Defense

Exhibits 1 and 2 in evidence.

MR. ALEXANDER: And 1, I guess, would be, like to

do them in chronological order, would entitled “Order”, and

it’s dated July 9th, 1981, signed by Judge Turner, and it’s in

Case Number 77-708 CF.

(MARKED BY THE CLERK)

MR. ALEXANDER: And 2 is an _ order of

consolidation, reassignment dated July 15th, 1981, signed by

Judge Turner and I believe initials on the 14th by somebody,

JPD, which I believe are the initials of Mr. Daniels. the

attorney for Mr. Hughes, and a John, who I believe was one of

the state attorneys.

MR. PAULK: It would have been John Harrison,

Judge.

THE COURT: All right.

(MARKED BY THE CLERK)

MR. ALEXANDER: Next I would like to call to the

stand Christian G. Cox.

THEREUPON

CHRISTIAN G. COX

being duly sworn, was examined and testified as follows:

DIRECT EXAMINATION BY MR. ALEXANDER:

Q Good morning, Ms. Cox.

A Good morning.

Q Please state your fu!l name for the record.

A My name is Christian G. Cox.

——”—CiCsit”si

Q And where do you live?

A I live in Decatur, Georgia,

Q And by whom are you currently employed?

A With the Georgia Appellate Practice and

Educational Resource Center in Atlanta.

Q And in 1986 by whom were you employed?

A With the Capital Collateral Representative in

Tallahassee.

Q And could you state just briefly for the record

what that organization was doing in 1986?

A In 1986 and currently, assists in representation

of death sentence inmates in Florida.

Q Okay. And what was your position at that

time?

A At that time I was a paralegal. Later I became

a paralegal and investigator.

Q Okay. And in 1986 did you have occasion to

work on the Walter Steinhorst case?

A Yes, I did.

Q Okay. Now, in an effort to speed things up,

and I can go through it all, Ms. Cox has prepared a resume of

her professional experience and I would offer it as an exhibit.

MR. PAULK: The only objection I would have is the

materiality, is what her experience was prior to 1986.

MR. ALEXANDER: Well, it lists it, goes all the way

back.

MR. PAULK: Well, I know, but I would assume that

probably it starts from 1994. The material issues. . .

THE COURT: I don’t think --

MR. PAULK: In 1986 this was material - well, let me

see what she is going to testify to first, see whether or not this

would --

MR. ALEXANDER: I can take her through her

employment history if you want. I was just going to try and --

MR. PAULK: I don’t have any problem with the

utilization of this.

MR. ALEXANDER: Well, let’s mark it as Defense

Exhibit Number 3 for identification.

THE COURT: Do it that way and...

MR. PAULK: As to what extent this becomes material

depends on when she is testifying, because my understanding,

1986 - well, I don’t know what period of time she did any sort

of --

THE COURT: All right.

MR. PAULK: -- inquiry.

THE COURT: You may proceed.

MR. PAULK: If we can reserve that until the end of

your questioning, other than - we’ll probably save some time.

Q (Mr. Alexander continuing) Well, we can go

backwards, forward. Prior to 1986, can you tell the Court and

describe what type of work you had done as a paralegal in

connection with death penalty cases or criminal cases?

A I had worked for several law firms as a legal

secretary and paralegal in not only death penalty cases, but

other complex litigation cases.

MR. PAULK: Judge, let me do this;. I’m going over

this right now. I have no - this is a judge hearing, to whatever

extent any of this may be relevant I'll trust the Court to be able

to separate the wheat from the chaff. So stipulate to make

exhibit of it.

THE COURT: We can go ahead and mark it in as

Defendant’s exhibit in evidence.

Q (Mr. Alexander continuing) I show you what’s

been marked as Defense Exhibit 3. Is that a true and accurate

Statement of your work experience resume?

A Yes, it is.

Q And.as part of your duties prior to November

of 1986, had you been asked by your various superiors at your

firms and including CCR to examine court files and court

records?

A Yes, I have.

Q And had you been trained in connection with

examining court files and court records?

A Yes, I have.

Q: And were you familiar with Bay County and

the Bay County Court?

A Somewhat, yes.

Q And the Bay County court system?

A Somewhat.

Q And in fact any members of your family ever

worked in Bay County?

A Yes, I’m actually - my family is from

Marianna, which is Jackson County, right nearby, and my

grandmother was a court reporter for this whole circuit for

many years and my mother also was a legal secretary in this

circuit.

Q Let’s see. And prior to November of 1986,

had you ever heard of Judge Turner?

A Yes, | had. But through my mother and my

grandmother, who actually thought he was just a wonderful,

adorable person. My grandmother kind of thought of him as

one of her pets and she was the court reporter on the Gideon

case, which Mr. Turner was the attorney and after it came back

down. Yes, I knew him, I know of his reputation..

Q Okay. Did there come a time in November of

1986 when you were working at CCR and you learned that one

of the clients of CCR as well as my client Mr. Steinhorst. a

warrant had been signed for his execution?

A I remember that very well. That was a shock

to all of us.

Q And did there come a time following learning

that when you were involved in a telephone conversation

conference call with among others myself?

A Yes. I believe - I think that you called us to

tell us that you had gotten this phone call from a reporter and

that was the first that any of us heard that there was a warrant

for Mr. Steinhorst’ execution. And we had a telephone

conference call with you, you were still in New York at that

time. And we were all shocked, we couldn’t believe that this

had happened, we couldn’t figure out how it had happened, and

that’s when we became aware that apparently the 3850 had

been denied. We were not aware of that until that time.

Q And were you then instructed to go to Bay

county and examine the court records in the Steinhorst/Sandy

Creek trial among other things to attempt to find this order and

find out what he said and what he had done?

A Correct. We were talking among ourselves,

but we needed to get this order, we needed to see what he'd

done, we needed to see what else he may have done in this

case, because that was the first time, as you said, that we

became aware that Judge Turner was even involved in the case.

Q Will you describe to the Court what you did in

connection with that instruction.

A It was November 8th of 1986, I came to the

Bay County Courthouse and | located the criminal division of

the clerk’s office. I went there and I talked to a woman at the

counter and I talked to a woman there and the name plate oa

her desk said “Dawn”, and I asked her for the Walter

Steinhorst/Sandy Creek file. And | remember that she told me

they were a mess and she didn’t know what I would be able to

find and she said that there had been a dozen phone calls about

this case the day before, when the warrants had been signed.

Q Did you proceed to examine the files that she

brought you?

A Yes, she brought out one box of files and put it

in a - at an empty desk near the back of the room and she told

me that I could iook through them then. She asked me what |

was looking for and I told her that I was looking, you know, I

didn’t know what we were looking for at that time, so I told her

I was looking for anything. And she handed me a copy of the

order, the order denying the motion and said here’s that order

that everybody’s been looking for. And she gave me a copy of

that order at that time.

Q Now, besides the order, did you go through the

rest of the files that she presented you at that time?

A I went through every page of that file. There

was one box of files that she gave me and I looked through

every page. I didn’t read every single word on every page, but

I looked through the complete file.

Q Did you notice at that time that the trial

transcripts for the underlying criminal trial seemed to be

missing?

A I thought that was - yes, I did.

Q And at that time did you see either Defense

Exhibit | or Defense Exhibit 2?

A (Examining papers) No, I did not.

Q At the time that you went to Bay County to

examine the records and to find Judge Turner’s order among

other things, were you aware of my concerns and the concerns

of the other attorneys at CCR concerning Judge Turner and

whether or not he would be a good judge for Mr. Steinhorst?

A Well, | was aware of that not only through that,

but also through my personal knowledge of Judge Turner.

Because I knew his reputation, I knew that this was not a judge

that we would prefer to have hearing the case. And you had

also expressed those concerns.

Q Now, did you ask this person whose name you

believe was Dawn because she had a nameplate if in fact she

had given you all the files relating to Sandy Creek criminal

trials?

A I had asked ‘or all of the files. And she

brought me a box of files and I said are these the files, and she

Said yes.

Q And --

A But it concerned - the lack of transcripts in

there concerned me.

Q Okay. Did you become aware _ that

subsequently another paralegal investigator was sent to examine

those files?

A Yes. Later that month Paul Harvell said - it

was another investigator at CCR, came down here because we

had discovered that - I can’t remember exactly the sequence of

events, but I believe that we had discovered that the transcripts

and the record were at the Florida Supreme Court and he came

down here so to confirm that they were not here.

Q And did he ask to see the files again?

A Yes.

Q And how do you know he asked to see the files

again?

MR. PAULK: Judge, I’m going to object. I know this

is an evidentiary hearing, but let me for purposes of the record

object to the hearsay. 1 don’t think Mr. Harvell is here to

testify, and I would object on the basis of that.

THE COURT: As to the last question I'll sustain the

objection, as I think he said how did Mr. Harvell do

something, and I'll sustain that objection.

A: ee

mec ie Nant abla

Q (Mr. Alexander continuing) okay. Did you

ever learn from any source in November that this order by

Judge Turner recusing himself from the Charlie Hughes case

had ever been signed cr Judge Turner’s involvement in the

Charlie Hughes case?

A No, I did not.

Q Okay. When was the first time that you

learned about Judge Turner’s involvement in the Charlie

Hughes case?

A In September of 1991. 1 was working at the

Volunteer Lawyers Resource Center when Ms. Jacobs and

Mr. Haigler came and re-examined the files. And that was the

first time I knew of it.

Q Okay. Is it fair to say that given your training

and background as well as your knowledge of the case and

events in November of 1991, had you seen or been presented

with either Defense Exhibit Number 1 or Number 2 and see

Judge Turner’s name, that they would have been meaningful to

you?

A Yes. I believe that would have struck a bell

with me and I think that I would have noticed that and brought

that to the attention of my supervisor and you.

MR. ALEXANDER. I have no further questions.

CROSS EXAMINATION BY MR. PAULK:

Q Ms. Cox, my name is Alton Paulk. If you don’t

understand my questions, ask me to repeat them. Could I have

just a second, Judge?

You indicated that you talked to a person by the

name of Dawn. She gave you one box of files?

A Yes.

Q Is that all the files she gave you, was one box?

A Yes.

Q What did you ask this person for?

A I asked her for the - I don’t remember exactly,

either the Steinhorst or the Sandy Creek files. I remember that

during the conversation both of those - those terms were used

interchangeably, in the courthouse.

Q Did you ask for the box of the exhibits for

Sandy Creek case?

A I asked for anything on the Sandy Creek/Walter

Steinhorst case.

Q And she told you she had given you everything.

A Yes.

Q Okay. She also indicated to you newspapers

had also requested to see the Sandy Creek files also.

A She told me that - said there had been quite a

few calls. I also talked with another woman at the clerk’s

office, Patty Smith, who also told me that there had been a

dozen phone calls and - that day and the day before.

Q Do you recall Patty Smith bringing you a bunch

of boxes or files, I won’t put words in your mouth, but boxes

and let you go through them back in one of the rooms

downstairs?

———

A I did not go downstairs.

Q When I say downstairs, first floor.

said ie

Sea SE toe

A Oh. She - I was brought a box of files. That’s

the only thing that I recall.

Q Do you recall where you looked at this box of

files?

A There was a table in the back of the room.

Q Do you recall what room in the courthouse?

You're apparently familiar with this courthouse, do you recall

which room it was?

A It was in the clerk’s office, the civil - the

criminal division of the clerk’s office.

Q Criminal division of the clerk’s office.

A I don’t remember the number.

Q And this was in November of 1986.

A Yes.

Q Do you recall when you went through the file,

what type pleadings did you see in these files?

A I remember the order denying the 3850. I

don’t remember specifically that many things that I saw.

Q Okay. Did you - do you recall seeing orders in

there, signed orders by judges?

A I don’t recall.

Q Do you recall seeing any indictments of the

people that were involved?

A Probably, but I don’t recall specifically.

Q You noticed that the transcript of the trial was

not in the record here in Bay County that you looked at.

A Yes.

Q What else did you notice that wasn’t in there?

A What did I notice that wasn’t in there?

Q Yes.

A That’s only thing I remember specifically.

Q Okay. Do you remember how many - do you

recall the case numbers you were looking for? Did you

indicate you were asking for a specific case?

A I don’t recall that I asked for a specific case

number, but I asked for the Steinhorst/Sandy Creek files.

Q Did you see any other of the defendants in that

file other than Steinhorst?

A I was aware that there were other defendants, |

don’t recall specifically right now that there were things, but

yes, I believe that there were other defendants.

Q My question, what about in the files that were

given to you by the young lady by the name of Dawn?

A I don’t recall specifically. Many of the pages

had all four names listed, pleadings in this case.

Q Did you specifically ask for Charlie Hughes’

file?

A I don’t recall.

| ee

Q Do you recall ever seeing any of the documents

in this box that was given to you of Charlie Hughes?

A I don’t recall.

Q Have you looked at the files since 1986?

A No.

MR. PAULK: I don’t have any other questions, Judge.

MR. ALEXANDER: Just briefly.

THE COURT: All right.

RE-DIRECT EXAMINATION BY MR. ALEXANDER:

Q Did you make any written record of your visits

to Bay County in November of 1986?

A Yes, I did.

Q And in what form was that written record?

A I took, notes and then I made an affidavit based

: on those notes.

MR. ALEXANDER: I would like to have marked as

: the next exhibit, Your Honor, the affidavit of Christian G.

Cox, sworn to on November 10th of 1986, which actually is

filed in connection with the papers, was filed in November.

1986, and the State has foreign, I guess it’s - well, it’s part of

the records in Bay County, whether it’s a part of the records

from what proceedings, keep using the same caption, so I guess

it’s part of the records of this entire proceedings.

THE COURT: All right.

MR. PAULK: (Examining papers)

THE COURT: While Mr. Paulk is looking at that can

I clarify something with Ms. Cox?

MR. ALEXANDER: Certainly.

THE COURT: I was just looking at your experience

on Exhibit Number 3. You state you worked for CCR from

October of ‘85 to April of 1988.

THE WITNESS: Yes.

THE COURT: But I presume from your testimony that

you continued to do volunteer work or were involved with

CCR or this case after April of 1988?

THE WITNESS: That’s correct.

THE COURT: Then you went on to work for

Mr. Norton (phonetic) in April of ‘88, September of ‘88 then?

CCR? September of ‘88, September of ‘89, and then the

Volunteer Lawyer’s Resource Center to July of ‘93, still being

involved with this case.

THE WITNESS: Correct. But the Volunteer Lawyers

Resource Center is actually the more or less local counsel at

this time with Mr. Alexander.

THE COURT: Okay. That’s what I wanted to clarify,

because I wanted to make sure I’m reading this correctly.

THE WITNESS: Yes. I continued my involvement in

this case. Since 1986, ‘85.

MR. PAULK: I have no objection, Your Honor, to the

introduction of this as well as --

THE COURT: It will be marked as Defense Exhibit

Number 4.

MR. PAULK: As well as her affidavit, and if you

want to, I'll waive --

MR. ALEXANDER: Go into the record as the next

one. Again, part of the files of this case and I guess the record

THE COURT: I can take notice of the court files and .

MR. ALEXANDER: Assuming that all the court files

can be found in our...

THE COURT: But it would be helpful --

MR. PAULK: I would move that that be stricken from

the record, Your Honor, as being tacky, I guess, is the word.

THE COURT: All right. Don’t know if that’s a legal

objection, but. . .

MR. ALEXANDER: Withdrawn.

THE COURT: Okay. This is Exhibit Number 4. and

then you have another exhibit you say?

MR. PAULK: Yeah. this is the affidavit of Ms. Cox.

dated April 22, 1993. I have no objection to that being

introduced, if you want to. And if he doesn’t I’ll introduce it.

MR. ALEXANDER: No, we’ll do it as the next one.

THE COURT: Be Exhibit Number 5.

MR. ALEXANDER: Did you have any further

questions?

MR. PAULK: I have no further questions.

THE COURT: You may step down.

MR. PAULK: Could I see Defense Exhibit 3, again.

MR. ALEXANDER: Like to introduce as the next

exhibit, again a affidavit signed by Paul Harvell on the 20th of

November. Again, it was filed in these proceedings. Since

One Of the issues is the due diligence, I was unable to locate

Mr. Harvell, I don’t know where he is since then, to bring him

in to testify personally, but he did put an affidavit in these

proceedings, State has had since November of 1986, Which

reflects his coming over here to examine the files. And again,

it’s the - it’s in the proceedings and I guess you could take

judicial notice of it anyway.

THE COURT: Any objection?

MR. PAULK: It’s part of the public records, I have no

objection, Judge.

THE COURT: Okay. It will be marked then as the

next defense exhibit.

MR. ALEXANDER; That will be 6.

At this point, Your Honor, I would call Ian Haigler to

the stand.

THEREUPON

IAN HAIGLER

being duly sworn, was examined and testified as follows:

DIRECT EXAMINATION BY MR. ALEXANDER:

Q Mr. Haigler, would you state your full name

for the record.

A Ian, spelled I-a-n, Haigler, H-a-i-g-!-e-r.

Q And by whom are you employed?

A The Volunteer Lawyers Resource Center in

Tallahassee.

Q And where do you reside?

A In Tallahassee.

Q and what is your Position at the Volunteer

Lawyers Resource Center?

A I’m a paralegal.

Q And for how long have you been a paralegal

with the Volunteer Lawyers Resource Center?

A I began working there in ‘89 and I believe in

later “90 or early ‘91 I became a paralegal.

Q And as part of your duties as paralegal for the

Volunteer Lawyers Resource Center, are you instructed to

examine court files and court records in connection with their

representation of death row inmates?

A Yes, I do.

Q And have you been involved in working and

assisting me in connection with Mr. Steinhorst’ post-conviction

proceedings?

A Yes, I have.

Q And did there come a time in September of

1991 when you were instructed to go to Bay County and

examine the court records concerning Mr. Steinhorst’ case?

A Yes.

Q And did you come to Bay County to look at

those records?

A I came to Bay County once without Ms. Jacobs

and I don’t recall exactly what the circumstances surrounding

the records. I had originally requested that the complete file

regarding Sandy Creek, that includes all of the other defendants

2s well, be copied and the clerk’s office said that the records

were too substantial for that and the cost would be great and

that they really didn’t want to have to copy them again because

they had several times before. And so - or they said that I

could come and copy the files myself and we arranged that they

would charge me a little less per copy if I did that. And I

came, but I don I t think I began copying anything the first

time. And then the second time I came with Ms. Jacobs too.

Q And that was when did you come with Ms.

Jacobs?

A That was in September of ‘91.

Q Okay. And can you describe what happened

when you came to Bay County in September of 1991 with Ann

Jacobs?

A We came and requested all the records relating

to the case and they brought - I recall because of the way the

boxes were stacked, there were five boxes, and there were

some large rent row (phonetic) recording file folders that

weren't in a box, and those were the original materials that we

looked through.

Ms. Jacobs believed that there were more

records that weren’t there.

MR. PAULK: I’m going to object to that, Your

Honor. That’s absolutely total speculation based on hearsay.

Q (Mr. Alexander continuing) Well, did Ms.

Jacobs say anything to you at the time?

A Yes, she did.

Q What did she say?

MR. PAULK: I’m going to object to that on the basis

of hearsay.

MR. ALEXANDER: He can testify as to what she

said. For purposes of this hearing and in acting upon it as

supposedly truthful.

THE COURT: Based upon what she said you can

testify what you did. (Inaudible words) - go from there.

MR. ALEXANDER: Well, he needs to state what he

heard her say so he can tell you what he did.

THE WITNESS: Ms. Jacobs indicated to me that she

believed there --

MR. PAULK: Still object, Your Honor. That’s the

same way of saying hearsay, introducing hearsay.

Ber Aaah OO bee ae

THE COURT: That’s true. I will sustain the objection

and I think he can go ahead and --

Q (Mr. Alexander continuing) What did you do

as a result of what Ms. Jacobs said to you?

A Apart from her I continuously requested that

the people in the clerk’s office for more material. They were

very friendly and helpful the entire day that we were there and

continuously looked. Very late in the day they did in fact find

more records. And bring them to us.

Q And did you stay after hours?

A Yes, we did. They said that we could stay for

a while afterwards looking at the records.

Q Now, you Said initially they brought you some

boxes and materials.

A Initially, yes.

Q And that was in response to your request that

everything relating to the Sandy Creek murder trials be brought

to you?

A Yes.

Q And did you specifically, do you recall stating

to the clerk the names of the defendants?

A Yes.

Q And did you include Mr. Steinhorst?

A Yes.

Q Mr. Goodwin?

A Yes.

Q Mr. Capo?

A I don’t recall

Q Mr. Hughes?

A Yes.

Se Be

Q And Mr. - (inaudible word). Now, and then

after they brought you what they said were all the files, you

asked for additional files to be brought to double check?

A Yes, I did.

Q And did they bring you additional files?

A Not until much later, until late in the day.

Late in the day did they bring some additional

files?

A Yes, they did.

Q Did you examine those files?

A I did not personally examine the files.

Q Ms. Jacobs examined that file?

A I assisted with some aspects of the examining

them and I was also taking items one at a time as they were

handed to me to be copied.

Q Do you recall - I show you Defense Exhibit 1

and 2. Did you see those, either of those two documents in

September of 1991?

A (Examining) Yes, I did.

Q And were those documents in the files that

were originally brought to you and Ms. Jacobs?

A No, they were not.

Q Were those documents found in the files that

were brought to you later in the day after you had made

numerous requests to see if there were additional files?

A Yes.

MR. ALEXANDER: I have no further questions of

this witness at this time.

MR. PAULK: I just have a couple, Judge.

CROSS EXAMINATION BY MR. PAULK:

Q The period of time that you examined the files

in Bay County, that was in 1991?

A Yes, sir.

Q You did not make any examination prior to

1991?

A No, I did not. I...

Q All right. When you - do you recall when you

looked at the case of, the Bay County cases in the clerk’s office

in 1991, do you remember how they were arranged at that time

in 1991?

A Yes, I remember they were very sloppily

arranged.

Q Sloppily arranged?

A We were told by the clerk’s office that they

were in very messy shape and they were .. .

Q This is in 199],

A Yes.

Q And did you find them in that condition?

iti ont ie ‘ ee

AID Sita

A When they were brought to us they were in

very messy condition.

MR. PAULK: I don’t have any other questions of this

witness, Judge.

THE COURT: Okay. You may step down. Unless

you want to ask some more questions.

MR. ALEXANDER: I have none.

THE COURT: You may step down.

THE WITNESS: I did want to mention, sir, that --

THE COURT: I’m not sure if you need to ask

Mr. Alexander before you offer something.

MR. ALEXANDER: If he has something that he feels

that he needs to say to make his testimony --

MR. PAULK: I --

MR. ALEXANDER: -- I have no objection.

MR. PAULK: I would object to it, Judge, because I

absolutely have no idea what he’s fixing to volunteer. I can’t

object to his question.

THE COURT: I’ll ask Mr. Alexander to talk to him

and see what his --

MR. PAULK: If you want to talk to him --

MR. ALEXANDER: Yes.

(CONFERRING WITH WITNESS)

MR. ALEXANDER: The witness notes and I reflect

the record that I had introduced him as Paul Harvell as opposed

to lan Haigler. And just wanted to make the record clear. He

is lan Haigler and not Paul Harvell.

MR. PAULK: I wrote it down that way.

MR. ALEXANDER: I apologize.

THE COURT: Okay.

MR. ALEXANDER: I call as next witness Ann

Jacobs.

THEREUPON

ANN JACOBS

being duly sworn, was examined and testified as follows:

DIRECT EXAMINATION BY MR. ALEXANDER:

Q Will you state your name for the record?

A Ann Faith Jacobs.

Q And where do you reside, Ms. Jacobs?

A Tallahassee, Florida.

Q And by whom are you employed?

A The Voiunteer Lawyers Resource Center.

Q What is your position with the Volunteer

Lawyers Resource Center?

A I’m a staff attorney.

iN taint inee is

maa

Q And you’re an attorney licensed to practice

law?

A Yes, I’m licensed in the State of New York, I

was admitted in 1987, graduated in ‘86, and I have taken and

passed the Florida Bar exam and my application is pending.

Q Okay. And can you tell me what, describe

briefly for the Court what the Volunteer Lawyers Resource

Center is?

A We're an agency that is a non-profit agency

that’s primarily federally funded with some state funding from

the Florida Bar Foundation and we’re basically like the federal

counterpart to CCR. We help recruit volunteer lawyers to take

post-conviction death penalty cases for defendarts who can’t

afford attorneys and then we lend our expertise and our

resources and assist the volunteer counsel in preparing post-

conviction papers.

Q Now, is the Volunteer Lawyers Resource

Center also help get volunteer lawyers from out of the State of

Florida?

A Yes, we recruit from all over the country.

Q And do you provide special assistance similar

to local counsel for such out of state lawyers?

A Yes. We don’t act as counsel of record, but we

do assist and we help investigate since we’re local and we help

file papers and whatnot. Sometimes, very rarely, we represent

directly, but generally not.

Q And have you been involved in Walter

Steinhorst post-conviction proceedings?

A Yes, I have.

Q And in September, 1991, were you involved

with Volunteer Lawyers in assisting myself in connection with

preparing and filing his federal habeas?

A Yes. I had joined the VLRC in April of ‘91

and Walter Steinhorst was the second case that I had worked on

there and I was told that your law firm was going to be

preparing a federal habeas petition and that’s when | began

working on Walter’s case, reviewing all the records and

helping, assisting in preparing for federal habeas.

Q In connection with that preparation did you

determine to go to Bay County and review again the records of

Walter’s case and what was known as the Sandy Creek trials?

A Yes, I did. That was essential. Normally we

would get copies of all case files, any kind of case files relating

to post-conviction proceedings and the record on appeal. we try

to get every, literally every piece of paper on the defendant and

relating to the case and because the files were so huge

apparently we weren't able to copy them all, so I had to go

personally and look at all the files, make sure that we weren't

missing anything, before we filed the federal habeas.

Q And did you in fact go to Bay County in

December of 1991?

A Yes, I asked Ian Haigler to go with me and we

drove over and we went to the clerk’s office and we asked to

see all the files in the Sandy Creek case and they put us at a

desk and brought out a bunch of files, there were several

boxes, and | had specifically asked for files, you know, all the

files on all the defendants because I could see by looking at

them that there were separate files for Mr. Steinhorst’ case and

separate files for David Goodwin. There were also files about

David Capo, who originally had been indicted for murder as

well. So there were different groups of files, not in any

particular order.

Q And after you reviewed the files did you reach

any conclusion as to whether what had been brought to you

initially in response to your request for fiies relating to all the

defendants whether they were complete?

A Yes, I was concerned because I saw

Mr. Steinhorst’ files and Mr. Goodwin's files and some other

files about these other co-defendants who ultimately did not

stand trial for murder, but I didn’t see any files on Charlie

Hughes.

So I spoke to the clerk and I said are you sure that

these are all the files because it seems that something is

missing. She said yes, this is everything that we found. And I

said, well, could you check again because I don’t see any files

on Charlie Hughes. And she said I'll check, but I’m pretty

sure this is everything that we have. And so I just continued

looking, there were a lot of files, and I just continued looking

through them and copying things that I felt were important,

asking Ian to copy, and then several hours later, as Mr. Haigler

testified, towards the end of the day she came out with - I don’t

remember if they were Redwell (phonetic) folders, but they

were some files on Charlie Hughes. And I went through those

files and that’s where I discovered this order entered by Judge

Turner, the two orders entered by Judge Turner. one was an

order indicating that he had advised counsel that he had recused

himself from Charlie Hughes’s when Mr. Hughes was on trial

in 1981 and there was another order saying order of

consolidation and reassignment to another judge. And that

indicated that he was reassigning the case to | think it was

Judge Bodiford. Apparently Judge Bodiford had - there were

separate case numbers, he had one of the case numbers and

Judge Turner had the other case number and so they were both

consolidated and sent over to Judge Bodiford.

Q Okay. And let me show you what’s been

marked as Defendant’s Exhibit 1 and 2. Are these the two

orders that you’re referring to?

pe rr

A (Examining) Yes, they are.

Q And were those orders in the materials that had

originally been furnished to you when you first came to the -

and asked for all the files?

A No, they were not.

Q And did you specifically ask for all the files on

all the defendants?

A Absolutely.

Q And you were told that you had been given all

the files

A Yes

Q And then later some additional files were

brought to you late in the afternoon.

A Yes. I think they said they found them

downstairs, | don’t know, but | doubted that they kept them in

the basement or something and apparently and they went back

and looked again and they found these additional folders and

brought them up

Q And it was in those additional folders that you

found these two orders relating or signed by Judge Turner

A Yes

Q That’s the first time that you were aware -

strike that. You were aware that Judge Turner had handled the

3850.

A Yes.

AE ND Sa NSA Sabha aes

Q Was that the first time that you were aware that

Judge Turner had also been involved in connection with

Charlie Hughes’s case?

A Yes. September, ‘91.

Q And was that the first time that you became

aware that he had represented the estate of one of the alleged

victims?

A Yes. We didn’t know which victim, so after |

got back to Tallahassee I directed a law student intern of ours,

John Bowman, to go to Bay County and go through the estate

files and try to figure out which victim it was. And then he

came back with the Sims case file. And that’s when we got the

estate file.

Q And following this discovery in September of

1991 of the, Judge Turner’s recusing himself from the Charlie

Hughes case, did you inform me of that fact?

A Yes, I called you as soon as I found out and

told you what I had found and you expressed surprise.

Q And then subsequently did you assist me in

preparing the motions that bring us to the proceedings today?

A Yes, I did

Q And we filed those within a couple weeks of

having discovered this?

A Yes. And we, as I said, we were working on

the federal habeas petition and when we saw this we felt that

we better file something to alert the court to this and we ended

up filing both things pretty much simultaneously.

MR. ALEXANDER: I have no further questions.

MR. PAULK: Just a couple.

CROSS EXAMINATION BY MR. PAULK:

Q Ms. Jacobs, your examination of Bay County

files was done in 1991; is that correct?

A Yes.

Q You had not examined any of the files prior to

1991, specifically between the time of 1986 to 1991?

A No, I wasn’t even in Florida until 1991.

Q Okay. In 1991 when you examined the files,

did you find the files messy and in disarray, in disorder?

A Yes, they were unbelievably messy. It was very

disorganized. Some were bound, some were - there were loose

papers. The thing that really struck me was the evidence box.

They brought that up from the basement and it was - things

were just thrown in there and there was evidence missing and

whatnot.

Q My concern is not the evidence box, but the

files, the pleadings. They were messy and in disarray.

A Yes, absolutely.

MR. PAULK: I don’t have any further questions of

this witness, Judge.

MR. ALEXANDER: I have no further questions.

THE COURT: You may step down.

MR. ALEXANDER: We have no further witnesses.

THE COURT: Mr. Paulk?

Oo nrc le ha tile coma AR uaa eT

MR. PAULK: State calls Gloria Tharpe.

THEREUPON

GLORIA THARPE

being duly sworn, was examined and testified as follows:

DIRECT EXAMINATION BY MR. PAULK:

Q Ms. Tharpe, if you will, tell us your full name

for the record, please.

A Gloria Beth Tharpe.

Q And where are you presently employed?

A Clerk’s office in Bay County.

Q Okay. And you're employed for Harold

Bazzel?

A Right.

Q When did you first become employed with

Harold Bazzel, the Clerk of the Circuit Court for Bay County?

A January, 1985.

Q January, 1985. Okay. Your duties in January

of 1985, what were they, as an employee of the clerk’s office?

A Primarily assigned to Judge Turner’s division.

Q All right. And for the record, if you would,

explain Judge Turner’s division. How were the courts broken

down, the judges broken down?

A They were in A, B, and C Divisions. Each

judge had a clerk assigned to his division that took care of his

files, I went to all hearings.

Q All right. So when you went to work in

January of 1985 you were Judge Turner’s for all practical

purposes criminal clerk.

A Yes.

Q And I believe - when was it or if you can recall

any dates, when was it that you first became involved in the

Steinhorst 850 hearing? Your first recollection of it.

A ] think ‘87 is when we had that hearing, in ‘87,

1 think.

Q Okay. Let me see if I can help refresh your

recollection. Do you recall when Mr. Steinhorst’s death

warrant was issued and there was a hustle and bustle for an

appeal?

A Yes, 1 do. That was in ‘86. Right.

Q All right. And did you - your duties as clerk

for the judge, when there is an appeal, you get involved

in preparing the record on appeal.

A Yes, I do.

Q All right. And basically what is the record on

appeal, so we can make a distinction between the trial

transcript and the record on appeal?

A It’s the pleadings that are filed in the case that

the attorneys request to be included in that record.

Q Okay. And that is the record on appeal.

le ca AC vi cp iM a cg

A That’s the record on appez!.

Q Now, the trial transcript, what is that? Is that

something separate and apart?

A That’s right. That’s the transcript from the

court reporters and they’re labeled as Volume I, Volume II,

Volume whatever, and then our transcript would be the

following volume after that, after the last transcript.

Q Now, the transcripts of cases that have been

appealed, as Bay County clerk, is it customary for y’all to

maintain and keep trial transcripts after they’ve been taken on

appeal?

A There is normally a copy of that - the transcript

- the record, I’m sorry, not the transcript, the record, there’s a

copy of the record kept in the file. The transcripts go to the

Supreme Court or to the District Court.

Q All right. And you say when a file is

maintained or when the record of appeal is sent up, the clerk’s

office here keeps a copy of the record on appeal.

A They keep the original, I’m sorry, they keep

the original record and a copy with the certification from the

clerk is sent to the appeal court, I’m sorry.

Q So the original document is still maintained in

the Bay County Clerk’s Office.

A That’s right.

Q Okay. Now, the transcripts, are they

customarily returned and stored with the clerk’s office or do

you know what happens to transcripts after they are sent to the

Supreme Court, transcript of the trial?

A When I was still in the felony division the beat

I can remember, sometimes they were and sometimes they

weren’t. It could be years before they were returned.

Q Okay. Now, let’s go back, you prepared, I

believe, the record on appeal for the first denial of

Mr. Steinhorst’s 850 motion; is that correct? The one where -

the emergency.

A Yes.

Q And there was some specific reason you recall

having that record on appeal, preparing that record on appeal?

A ] just remember it was late in the day and it

was an emergency, it had to be done then.

Q Okay. And did you work over the weekend?

A Local thing. It seems like I did. Maybe I just

remember the hustle, bustle, hurry thing. I don’t remember - |

think I might have had to work late that night to do it.

Q To get it done. All right. Now, after - well,

let’s go back to the time period, do you recall a time when -

you remember Patty Smith.

A Yes, I do.

Q She - what was her position back then in 1986?

A She was the supervisor in the criminal division.

Q Okay. And do you recall an occasion when

some people asked her for some records of the Steinhorst or

Sandy Creek case?

MR. ALEXANDER: Objection, Your Honor.

Hearsay.

THE COURT: That particular question you can

answer.

THE WITNESS: Yes, I do.

Q (Mr. Paulk continuing) Okay. And do you

recall the people that she had given the records to?

A No, I don’t. I just know they were some

people that had come in and asked for the files and I remember

her looking for it.

Q Okay. Was this before you had the hustle and

bustle in preparing the Steinhorst appeal?

A It was.

Q Okay. And do you recall how many boxes

were furnished to these people?

A No, I don’t.

Q Do you know where these people were when

they looked at the files?

A The occasion that I remember, they were taken

to the - to what’s now the recording department and to a table

back there. At that time our offices were very small or

combined into two rooms and we were just shoved tight in a

tiny room. And she took them to the recording department

where there was a table.

Q Now, when you - at that time you had not, you

had not been given custody or working with the files.

A No, I hadn’t.

Q About how soon after that was it that you

started working with and gathered up files and worked with the

files?

A My first recollection was in ‘86. We were in

another room at that time.

Q And that was preparation for that speedy

appeal.

A Right.

Q Okay. Now, when was the next time that you

became involved with the files and the records, for the purpose

of this question right now, with the Sandy Creek murders, the

next time?

MR. ALEXANDER: Objection. I don’t know if she

knows what the, what she includes in the Sandy Creek

murders.

Q Well, I’ll rephrase the question. When is the

next time you became involved with Walter Steinhorst file?

A We had a hearing in ‘87, I think. September of

‘87.

Q And I assume - well, prior to that hearing in

September of ‘87, 1 think that’s probably roughly the month

we're talking about, did anyone come in and review the files

prior to that time?

A There was always someone looking at the files.

Q And when you got a hold of these files in

September of 1987, where were they located?

A At that time our files were kept in a what’s

called the file room, where all our older files are kept now.

Wika ibaa le ian ec ncaa

Q Okay.

A It’s next to the criminal felony office.

Q Okay. And did you gather up these files in

that felony file room, which is right there on the first floor next

to the clerk’s office; right?

A Right.

Q And was that in preparation of the September,

1987 hearing?

A Yes, sir.

Q Do you recall what all the files consisted of

then, just generally? How were the files and how were they

arranged?

A They were kept in cardboard boxes like they

are now. I don’t remember if there was one or two boxes, I

don’t know. Things were just stacked in there. We had to go

in periodically and file paperwork.

Q Okay. Now, I believe one of the individuals

that indicated - well, let me see if I can’t do this way. We have

here three boxes on this cart here.

A Um hum.

Q Prior to today have you gone through and

examined them and looked at these?

A Yes, Sir.

Q Okay. Now, let’s go to 1987, Steve Alexander

was the attorney at those hearings; right?

A Right.

Q And you were present during the taking of

evidence on Mr. Steinhorst’s case; is that correct?

A Yes.

Q And the files that you would bring to that

hearing, the Steinhorst files, were they consisted of what we

have here?

A Right.

MR. ALEXANDER: Objection, Your Honor. Want

to object to this vague reference to what we have here.

Because there’s three boxes there and I don’t know whether

that encompasses every paper that’s ever been filed by every

defendant and every attorney in all of the proceedings, post-

conviction or not, or, you know, there’s no identification of

these three boxes and what they are for purposes of any kind of

appellate record or here.

You know, just three boxes. And there’s been no

representation nor any evidence as to what those three boxes

are and what they include.

MR. PAULK: All right, Judge, let me back up and

clarify.

THE COURT: I'll sustain the objection for the record.

Q (Mr. Paulk continuing) Okay. Ms. Tharpe, if

you would, step down, please.

A (Leaving witness stand)

MR. PAULK: And, Judge, I honestly don’t know how

we’re going to do this for purposes of record. I would like to

identify, I guess, these State’s exhibits as we go through them.

State’s Exhibit Number 1. Could we mark that. Okay, you see

this box here?

THE WITNESS: Yes.

Q (Mr. Paulk continuing) And the handwriting

on that?

A That’s mine.

Q That’s your handwriting? Now, that’s the

State’s 1.

THE COURT: State’s 1, just stick a marker on it so

we've got some identification.

MR. PAULK: Yes.

THE COURT: Show for the record it’s a cardboard

box, it has “77-708, Sandy Creek. Walter Gale Steinhorst” in

handwritten, black Magic Marker.

MR. ALEXANDER: Are you just marking the boxes

of exhibit or the entire contents of the boxes?

MR. PAULK: I’m not marking the box and the

contents of the exhibits.

THE COURT: We’ll mark it for identification at this

point in time and we’ll try to identify what’s in the box if we

can go a little further, as a Composite 1. Are you going to do

the same thing with the other boxes?

MR. PAULK: Yes, sir, Judge, I don’t know of any

other way.

THE COURT: The other box, we’ll go through the

contents, but specifically the record, the box itself has Magic

Marker “Sandy Creek. David Monroe. Goodwin. Charlie

Hughes. Lloyd Woods. David Capo. Peter Van Estrup. And

John Does.” Handwritten on the lid of that cardboard box.

Again, that would just be the box itself.

MR. PAULK: Okay. And, Judge, well, we’ll do these

as State’s Exhibit Number 3.

THE COURT: And that...

MR. PAULK: Composite exhibit.

THE CLERK: File Number 2 and File Number 1.

THE COURT: For the record, that would be blue file

folders that have “Walter Gale Steinhorst” handwritten felt

marker, File Number 2 and File Number 1, two blue folders.

And the last isa...

MR. PAULK: Is a box, Your Honor, and it is marked

State’s Exhibit Number 3, State versus Walter Steinhorst, 77-

708, with the initial G and the last name Tharpe on it.

THE COURT: it’s apparently evidence sticker. Does

it have a date?

MR. PAULK: Yes, September 18, 1987.

THE COURT: September, 1987. I’m trying to think

of the dates.

MR. PAULK: That was - these were exhibits that were

introduced in evidence in 1987 at the evidentiary hearing that

started September 16th and ended, I believe, on the 18th.

THE COURT: So with that box we can assume the

evidence was presented at the evidentiary hearing --

MR. ALEXANDER: I don’t know what it contains,

it’s got a label on it.

THE COURT: But we’ll show it as State’s Exhibit

Number 4 for identification at this point in time.

ht. aA LI bt cele alta lee A lt

MR. PAULK: Thank you.

Q (Mr. Paulk continuing) Now, let’s go to

State’s Exhibit Number 1. On top of that box, Case Number

77-708. Says “Sandy Creek, Walter Gale Steinhorst. ”

A That’s right.

Q Is that your handwriting on that box?’

A That’s my handwriting.

Q Okay. Let’s go to File Number 1 and File

Number 2, which is State’s Exhibit Number 3 for identification

and let me show you that. It has “Walter Gale Steinhorst, File

Number 1” Whose writing is that?

A That’s mine.

Q And let me show you “Walter Gale Steinhorst,

File Number 2,” which is part of that composite Exhibit

Number 3.

A That’s mine.

Q That’s your handwriting?

A Yes.

Q Now, let’s to State’s Exhibit Number 2. On

the top of this it says “Sandy Creek, David Monroe Goodwin,

Charlie Hughes, Lloyd Wood, David Capo, Peter Van Estrup,

and John Does.” Do you recognize that writing?

A Yes.

Q State’s Exhibit Number 4, with the “G.

Tharpe” on it, being marked as State’s Exhibit Number 3,

dated September 18, 1987. Whose handwriting is that?

A That’s mine.

Q Okay. Now, if you would go ahead and take

the stand.

A (Returning to witness stand)

Q The files that you received, and we'll call them

Sandy Creek, they’re labeled Sandy Creek and there are

different names on them, the files that you had received for the

purposes of hearings back in September of 1987, are those the

records that you had in 19 - at least September of 1987, when

we were having a hearing?

A Except for the evidence box there. I received

that in that hearing.

Q Okay. And I believe there is a transcript of the

appeal of that hearing that’s been added to the box.

A I don’t know.

Q (Examining contents of box) And the box I’m

referring to is State’s Exhibit - it’s going to be State’s Exhibit

1. Sandy Creek, Walter Steinhorst. And the record on appeal

I'm referring to is Volume 1, 3, 6, and there’s some more in

here.

A Yes. These came out of the Supreme Court,

District Court

Q My question is this.

MR. ALEXANDER: The record on appeal, referring

to which record on appeal, because there’s been more than one

record on appeal here.

Q If you would, look at the index on it.

A (Examining) Index?

Q Yes.

A And what was your question again, I’m sorry?

Q All right. There, are some 1986 documents,

when was this record on appeal? When would it have been

prepared or one like it?

A it was prepared by myself in November of

1986. November 21st, 1986.

Q Okay. And was that in, or if you can recall,

was that in the file when we came back in 1987, the records on

appeal that we’ve got there, the volume?

A I don’t recall.

Q Now, in 1987, when you got the Steinhorst file,

if you would, explain to the Court how they were maintained

and how objects were filed on those.

A In ‘87?

Q Yes. In ‘87, in September of ‘87.

A Everything was put in the box. I mean if we

filed something we would just put it in the box. I don’t think it

was in any real file folder or anything. It was - it was a

confusing file at that time.

Q Okay. This is in 1986, or in September ‘87.

A Right.

Q Okay. In that file how - the defendants, were

they separated out?

A No.

Q Okay. The file folders. Do you recall what

type file folders were used back then?

A They were a manila color.

Q Okay. And the pleadings, were the pleadings

kept in manila folders?

A Yes, sir.

Q Okay. And when I say the pleadings, we’re

talking about orders, indictments, motions, and that sort of

stuff.

A Right.

Q Okay. And when you got the file in 1987,

were they still in the folders?

A Right.

Q Okay. Now, the - and I’m not sure if I asked

you this question, I'll apologize if I already have. Were the

files separated or segregated by defendants’ names at all?

A No.

Q So if you went through the files in1986 or at

least in 1987, when you got them, You would have to go

through the entire voluminous file to separate Charlie Hughes’

case from Mr. Steinhorst’s cases. Is that true?

A That’s right.

Q All right. Now, the exhibits, State’s exhibits

which you have previously identified in front of us here,

bearing your signature on the boxes and the files. When did

you do that?

A The last contact I had with the case was in 1988

at the last hearing we had. I don’t remember what the hearing

was, I guess 3.850 hearing and there was an appeal to that

denial and I was preparing the records for the appeal. I talked

to my supervisor at the time and we kind of talked it over and

decided that maybe it would be better if we divided out the -

the defendants by name and put their paperwork in separate

files, since there was no activity in no one’s but Mr. Steinhorst

and Mr. Goodwin’s cases.

Q And that’s what you did.

A And that’s what I did.

Q And that was in 1988.

A Right.

Q And that, so that I can understand, in1987 all

the defendants were grouped in to manila file folders and in

boxes.

A Right.

Q So if you asked for the Walter Steinhorst file,

you've also got Charlie Hughes’ file, Mr. Estrup’s or these

other co-defendants’ files.

“A Right.

Q And when you have to prepare the record on

appeal after Judge Turner denied it at the full evidentiary

hearing in 1988, you organized the files as they are today.

A Right.

Q And the documents in these files as they are

today were there at least in ‘87 or ‘88 when you did them; is

that correct?

A That's right.

Q Now, after ‘88, if you came in and asked for a

particular defendant’s file, then what would you get? If you

asked for Walter Steinhorst’s file, what would you get? If you

just asked for Walter Steinhorst.

A You would probably just get that box.

Q And if you asked for Charlie Hughes’ file - and

the box I’ve shown you we referred to as State’s Exhibit

Number 1.

A Right.

Q Which would have then included these two

files, okay, which are State Exhibit 3, I think. Now, State’s

Exhibit 2, if you had asked for Charlie Hughes’ file in ‘88,

what would you have got?

A That box.

Q Okay. This box being State’s Exhibit Number

3, 1 believe - State’s Exhibit 2. Okay. Which includes who

else’s file?

A David Goodwin's, also David Capo, Peter Van

Estrup, and John Does.

Q Now, when in ‘88 did you organize the files in

this manner? Talking about in what month.

A In August.

Q All right. And after August of ‘88 you or when

were you transferred to another section or made supervisor of

another section?

A June, 1989.

Q Okay. All right. Now, inside the box, State’s

Exhibit Number, that is marked Charlie Hughes along with

David Goodwin and others, let me show you these files which

were marked Charlie Hughes 1 and Charlie Hughes 2. Do you

recognize the writing on those files?

Yes, I do.

Okay. And it’s your writing, I believe.

Yes, it is.

These two files you reorganized in1988?

a” soe ae Rae

That’s right.

Q Okay. And you took - let me ask, the, all of

the Charlie Hughes pleadings that you had found in the record

at least when you took control of them or saw them in 1986.

did you include those in the records that you found in --

MR. ALEXANDER: Objection to the question. It’s

leading.

MR. PAULK: All right.

THE COURT: Rephrase your question.

Q (Mr. Paulk continuing) What did you do with

the pleadings that you found in the Charlie Hughes, David

Goodwin, Walter Steinhorst file, Lloyd Woods file and David

Capo file, Peter Van Estrup file, and the John Does file, what

did you do with those pleadings?

100

MR. ALEXANDER: Object to the question. There

was no such separate file at the time prior to reorganization.

He’s referring to something that didn’t exist.

MR. PAULK: My question is simply what did you do

with the conglomerates of all of the defendants’ files in 1987,

the pleadings.

THE COURT: I note the semantics of what’s involved,

but I think she can answer the question. Okay.

THE WITNESS: I separated out by defendant. If it

said Charlie Hughes on it, I put it in Charlie Hughes’ file.

Q (Mr. Paulk continuing) Now, if you will, we

have them, I believe, marked and in Charlie Hughes’ file two...

Or I just request - well, if you would, prior to today you

marked these orders; is that correct?

A Yes.

Q Okay. And in Charlie Hughes’ file, number

two, does the order of July, 1981, of Fred Turner recusing

himself appear there?

A Yes, it does.

Q And the file date of that order?

A The date he - from the clerk’s office?

Q Yes.

A July 9th of 1981.

Q Okay. And contained also in this same Charlie

Hughes file Number Two that you reorganized, do you see

Judge Turner’s order consolidating Case Numbers 77-708 and

77-711 and again recused himself?

Yes, I do.

Q What is the file date marked on that as being

filed in the clerk’s office?

A July 15th, 1981.

MR. PAULK: That’s all the questions I have of this

witness at this time, Your Honor.

MR. ALEXANDER: Why don’t you leave that up

there.

MR. PAULK: Excuse me, let me ask this question.

I’m not sure.

Q (Mr. Paulk continuing) Did you have any

contact with anybody as to these files in 1991, who might have

come in and requested these files?

A No, sir.

Q The files I’m referring to are the ones that have

been marked for State’s exhibits.

A No, Sir.

MR. PAULK: Yes, I have no more questions.

THE COURT: You may proceed.

CROSS EXAMINATION BY MR. ALEXANDER:

Q Now, Ms. Tharpe, you were first employed

with Bay County in 1985?

A That’s right.

102

Q And you were employed as the clerk for Judge

Turner’s division?

A Right.

Q Now, prior to 1986, when the warrant was

signed, did you ever have any occasion to look at the Sandy

Creek files?

A No, I did not.

Q Did you have any responsibility prior to that

time for providing files relating to Sandy Creek, and I’m using

Sandy Creek relating to all the defendants and all, in the

broadest sense, providing files related to that to any attorney

representing Mr. Steinhorst or any other defendants?

A I can’t recall at any time unless someone was to

come in and ask me for it. I was the clerk that was handling it

at the moment.

Q Do you have any private recollection of every

having presented files, Sandy Creek files, prior to 1986 to

anybody?

A There was some gentlemen that came in and |

worked with them locating the files at one time. I think they

were from the CCR, but I don’t remember what time that was,

what time frame that was.

Q Do you have a memory now where you could

Swear to every piece of paper that you gave those people?

A No.

Q Do you know, sitting here today on the stand,

whether or not every piece of paper that’s been filed in

connection with any one of these defendants in post-conviction

103

or any transcripts that are in those boxes, all the records are

there today?

MR. PAULK: Stipulate she can’t say that, Judge. I’m

objecting to the materiality of it. Two we’re involved in is the

judge’s recusal.

MR. ALEXANDER: My question is whether these

files are as of today complete.

MR. PAULK: I withdraw the objection.

THE WITNESS: I’m sorry, would you repeat that --

Q (Mr. Alexander continuing) Can you state that

in fact these files that you had some responsibility for

maintaining that you’ve testified are in fact the complete files of

every piece of paper that’s been filed in connection with all

Mr. Steinhorst’s proceedings?

A I don’t think I can swear that it’s every piece of

- it’s the file that was kept in the clerk’s office.

Q Have you done a complete search of all of the

files - let me ask you this question. Have you ever in your

experience in clerking with Bay County found that pieces of

paper have been misfiled?

A Certainly.

Q Have you ever found that pieces of paper or

files have been lost?

A Mislaid for a time, but found.

Q Found later. In fact has Bay County, has the

clerk’s office ever loaned out portions of the files to say the

State attorney’s office for a period?

104

A No, sir.

Q Never let anybody take the files out of the

clerk’s office.

A No, sir.

Q Have you ever personally conducted a complete

search at any time from ‘86 to see if in fact all the files relating

to Mr. Steinhorst and all the co-defendants have in fact been

assembled?

A (No audible response)

Q I’m sorry. Is it your testimony that you just

took whatever files were given to you?

A That’s true.

Q All right. And I believe your testimony was

when they were given to you that they were a mess?

A Yes, sir.

Q And that the filing system was just simply to

put pieces of paper in a box?

A Somewhat.

Q And there weren’t any labels on the box before

you put the labels on them, were there.

A No.

Q Now, when you reorganized the files in ‘88,

separated them out, did you read the pieces of papers?

;

105

A I would say I probably did somewhat. I went -

I tried to go by the chronological order in putting them in the

file.

Q And prior to that time they weren’t even in

chronological order, were they.

A Pretty much. It was a lot of activity in the file.

Lot of people went through the file.

Q Lot of people, in fact you had to replace the

file folders because I believe originally they were manila

colored; right?

A Right.

Q . . . Of the original file?

A On account of they were ripped.

Q Do you recall reading the two orders that have

been marked as Defendant’s Exhibit 1 and 2 that Mr. Paulk

referred to about Judge Turner recusing himself?

A Back in ‘88?

Q Yes.

I can’t swear to that.

Q It didn’t ring a bell?

A No.

Q In your experience, you were with Judge

Turner for a long time, did he recuse himself from a lot of

cases?

106

A In my experience he would announce from the

bench to the attorneys that he might have represented a family

member of someone, if they requested that be recuse himself be

would.

Q And he didn’t mention that to you or anybody

else during the time period of Mr. Steinhorst trial, did he.

A No.

Q Do you have any personal knowledge of what

files were shown to Ms. Cox, you were in court when she

testified today; correct?

A Yes.

Q And prior to seeing her testify today, do you

remember ever seeing her?

A No, I don’t.

Q Do you have any personal knowledge of what

files were shown to Ms. Cox when she came over here in

September of 1986?

A No, I don’t.

Q Did you ever meet a Paul Harvell?

A Yes.

Q When did you meet him?

A During the time that all the hubbub was going

on I worked with him quite diligently, looking for the files.

Q You know specifically what documents were

given to him?

A No, I don’t.

Q Did you ever meet or see Ian Haigler or Ann

Jacobs before today?

A. No.

Q Were you present when they were shown

documents or files?

A No, sir.

Q And these are the Charlie Hughes files that you

reorganized; right?

A That’s right.

Q Put them in new file folders, so prior to 1988,

August of 1988, these files were not maintained in this sort of

order.

A No.

Q And I guess I'll bring you over the box that you

put - let me ask you generally. When a - what is the file

number on Charlie Hughes’s case?

A 77-708.

Q Now, the first document that I note, and this is

State’s Exhibit - which one was this? Is this 4?

MR. PAULK: 2, I think.

Q 2. This came from 2. Charlie Hughes’ file.

What's the docket number on, the case number on that one, the

first one that you put in there?

A 77-711.

108

Q It says 711. 1 thought you said it was77-708.

A They were all consolidated together, some of

them to lower case numbers.

Q I see. So some materials would have 77-711

on them.

A Some materials would have 77-708 on them.

A That’s right.

Q Some would have nine, ten, eleven. So until

you organized them in ‘88 by defendant, they were just all

thrown into a box.

A That’s right.

Q Now, I’m not familiar with how Bay County

keeps its records and, by the way, has Bay County changed the

way in which it maintained its files from 1977 to today? Any

changes in the court system, do you have like computers now

Sale

A We have computers. At that time I don’t think

they kept minute sheets. Back in ‘82 and ‘88. Or docket

sheets into the files, they wrote on the outside of the files at that

time

Q When did they - do you have computer

document system now?

A Right.

Q When did that come into being?

A (Inaudible words) - in 85.

109

Q In ‘85. Okay. Do you know how long before

‘85?

A I think it was relatively new at that time, it was

probably there in ‘84, I think.

Q So it wasn’t there in ‘81

A I would assume not.

Q Okay. Now, under the procedures as you

understand them that were in place say during the period from

1977, when the original indictment, that’s when the original

indictments were handed down? And that’s why you got a

“77” prefix?

A Right.

Q Were all papers that were filed in connection

with the Court in that case to be put in files and maintained?

A Yes.

Q And that would include pleadings that were

filed?

A That’s right

Q That would include orders?

A That’s right.

Q That would include exhibits marked during

hearings?

A Marked during hearings?

110

Q Yes. Any exhibits that were put into evidence

marked during hearings such as this, would they be a part of

the files?

A If it was marked as a current exhibit or marked

into evidence it was put in the vault.

Q In the vault, but that’s still part of the files;

right?

A I don’t consider it the file, but . . .

Q Part of the record of the proceedings?

A It’s not kept with the file, no. If that’s what

you're asking me

Q Bay County, I guess, different than - today is

there any record of that maintained in this computerized docket

sheet? Do you know where to go to get the evidence, if you

want to get everything that relates to a case, is there a piece of

paper that you can go to today that says, you know, this is

where the pleadings are, this is where the exhibits are, this is

where the transcript, is there such a thing in Bay County today?

A I don’t know, I have not been in that

department in over five years now. I don’t know of any.

There could be, | don’t know.

Q Was there, more pertinently, was there any

such special record in 19 - say for the period from 1980

through 1988, when you were involved in this case?

A No, not that I recall, no.

Q Now, I notice this is - is this the complete file

for what you believe to be the complete file - let me put it

another way. Is this all the materials that you were given in

say ‘87 relating to Charlie Hughes?

A All that that I was given, I suppose, I mean this

is what I made the files up in.

Q Everything you got had Charlie Hughes’s name

on it you put in there.

A Right.

Q Now, what did you do if there was more than

one name on the caption sheet?

A I think I put it in the big, Steinhorst file. |

think that’s where, I can’t recall.

Q Okay. Now, in our - in Charlie Hughes, |

believe the record will reflect and State will stipulate, he was

tried. Do you see any trial transcript there for Mr. Hughes’

trial?

A I don’t see any here.

Q Now, are they part of the file?

A If they’re returned.

Q Well, returned from where?

A From the District Court or the Supreme Court.

Q Well, as I understand, you'll _ stipulate

Mr. Hughes was tried right here in circuit court: correct?

MR. PAULK: Sure he was.

Q (Mr. Alexander continuing) So those

transcripts should be here; right?

112

A When a record no appeal is prepared the

transcript is sent either to the District Court or to the Supreme

Court. We don’t keep a copy of the transcript.

Q Do you know if in fact Mr. Hughes’ trial was

appealed to any appellate court?

A I don’t know --

Q State will stipulate that he had a hung jury and

then he entered into a plea. I know of no appeal to the court,

do you?

MR. PAULK: I don’t know. There would be no

transcript either.

MR. ALEXANDER: What?

MR. PAULK: There would be no transcript either.

MR. ALEXANDER: Was any transcript ever prepared

to your knowledge of --

THE WITNESS: Not to my knowledge

Q (Mr. Alexander continuing) So the transcript

isn’t here.

A I don’t see one here.

Q Okay.

A I can’t swear to that, but I don’t see one here

Q All right. Okay. And the exhibits that were

put into evidence in Mr. Hughes’ case, they wouldn’t be in

these records either, would they. The records that are up here

in the courtroom today.

a a

113

A Exhibits? I’m sorry.

Q Exhibits that were entered or offered in

j evidence in Mr. Hughes’ case.

A They would be kept in the vault.

Q Yes. And they’re not a part of these records

here that you put into evidence.

% Li weil! Aenea Daal

A No, sir.

MR. ALEXANDER: Okay. I have no_ further

questions.

RE-DIRECT EXAMINATION BY MR. PAULK:

Q Just want to clarify one thing. The records that

you inherited in 1986 when Judge Turner became involved in

the case are the ones that you have incorporated in these files,

State’s exhibits.

A That’s right.

Q All right. And for clarification. The

transcripts on appeal, that is prepared and done by the court

reporter, is it not?

A That's right.

Q And when you are forwarding a record on

appeal do you - let me ask the question. Does the clerk’s office

have anything to do with the transcript on appeal?

A No, sir.

MR. PAULK: That’s all I have.

SDR TT NES RMP SARE STEEP NEST OSM PERS” Rt A TET TOA eS A SS BRR RSA RE ONT GL Te DISHES CTR ERE SON

114

THE COURT: If I could clarify one thing with Ms.

Tharpe. When did you write on these boxes? Was it in 1988

or before 1988 when these boxes were put together so to speak,

writing on it?

THE WITNESS: °88.

THE COURT: In 1988?

THE WITNESS: (Indicating in the affirmative)

MR. PAULK: She shakes her head in the affirmative.

THE WITNESS: Yes.

THE COURT: So in 1988 would be the date that the

boxes as they exist right now were prepared.

THE WITNESS: That’s right.

THE COURT: Yes. I’m sorry, Mr. Alexander.

MR. ALEXANDER: Yes, I have a couple of quick

questions.

RE-CRQSS EXAMINATION BY MR. ALEXANDER:

Q Have these files that are sitting in_ the

courtroom today that have been marked as State’s exhibits been

continuously in your sole possession since you got them in

1986?

A No, sir.

Q Have many people looked at them and

examined them since 1986?

A Yes, air.

Q Can you sitting here today swear that every

single piece of paper that is here today you got in 1986? Pieces

of paper that you got in 1986?

AN Can I swear what?

Q That every piece of paper that’s here present

today you had in 1986, when you first got whatever files you

were given?

A No, I can’t swear that. There’s been a lot of

pleadings filed since I left felony division.

Q In addition to the pieces of paper that have been

added because they were created after and filed, can you swear

that in fact every piece of paper that existed in 1986 you were

given in 19 - when you first got the files in 1986?

A To answer your question, no, I don’t think I

could swear that. Because I don’t know what every piece of

paper that’s in these files are.

Q And you don’t remember every piece of paper

you were given when you were first given the papers in 1986,

do you.

A No, sir, it’s a big file.

Q Right. And you don’t know if in fact some of

the pieces of paper that you were given in 1986 might have

been lost, mislaid, between the time of 1986 and the present.

Is that also a fair statement?

A I can’t swear that, but I don’t think so.

MR. ALEXANDER: I have no further questions.

116

MR. PAULK: I don’t have any further questions of

this witness, Your Honor.

THE COURT: Okay. You may step down.

MR. PAULK: One additional witness, Your Honor.

Can I excuse her to go back downstairs?

MR. ALEXANDER: I don’t, I mean if we need her |

assume that she’ll be available?

MR. PAULK: Yes.

THEREUPON

REENA GOSS BAKER

being duly sworn, was examined and testified as follows:

DIRECT EXAMINATION BY MR. PAULK:

Q Ms. Baker, if you would, tell us your name for

the record, please.

A Reena Goss Baker.

Q And where are you employed?

A Harold Bazzel, Clerk of Court.

Q And that’s here in Bay County; is that correct?

A It is.

Q And how long have you been employed with

the Bay County Clerk’s Office?

A Since March of ‘85.

117

Q All right. And in what capacity were you first

employed in 1985?

A As a clerk for one of the judges.

Q In the criminal division?

A Yes.

Q Okay. And what capacity do you presently

hold?

A Supervisor over the criminal division.

Q Okay. And prior to today I have asked

PAGE 117 (1575) MISSING

A Yesterday.

Q Okay. And were they in the same condition

when you received them yesterday as they are in today?

A They are.

Q Okay.

MR. ALEXANDER: I object. I don’t know how she

could possibly state that they're in the same condition, just

looking at the boxes.

THE COURT: I'll overrule --

MR. PAULK: Did we look at them together

yesterday, are they in the same condition other than the fact

we've got the files out?

THE WITNESS: Yes, sir, they are.

118

Q (Mr. Paulk continuing) I’m talking about the

neatness of them or the messiness of them, depending on how

you want to look at it. The same?

A They are.

Q Now, where are the records of these boxes

maintained like in a closed file like this? Where are they now

maintained? Where are they physically located?

A In our vault.

Q And in what part of the building?

A The basement.

Q Back in 19 - when you were here in 1985,

where were those records kept?

A In the vault in the wall.

Q What floor?

A The basement and the first floor.

Q Okay.

A And two and a half floor.

Q Now, as supervisor of the criminal division, let

me - you hear Gloria testify about the record on appeal

A Yes.

Q When you prepare a record on appeal do you

maintain the originals with the clerk’s files here in Bay County?

A The original record on appeal, we do now. We

‘ ALE RIN Min tase ~

119

Q Now, the transcript of the trial, are you

familiar with what transcript of the trial is; is that correct?

A I am.

Q Okay. And for purposes of the record, would

you explain, do you all after a case is appealed, do you all

receive the transcript of the trial back from the Supreme Court

or the First District Court of Appeal?

A From the District Court we do, but we don’t

receive them back from the Supreme Court.

MR. PAULK: That's all the questions I have of this

witness, Your Honor.

CROSS EXAMINATION BY MR. ALEXANDER:

Q Say you started in 1985; is that correct?

A Yes, sir.

Q And you said that currently these boxes and the

files that have been marked as State’s exhibits are maintained in

the vault?

A Currently, yes.

Q Okay. In 1985, ‘86, where were they

maintained?

A In the vault, on the two and a half floor. and

some in my office.

Q Okay. Now, when you say in the vault, that’s

the same vault you're talking about?

120

A Is that the same vault as?

Q In your prior answers as to where they are

today, or is that a different vault?

A A different vault, it’s in the same area. We

have a stand in vault.

Q Okay. So some of them were in the vault in

‘85, ‘86, and some of them were in the two and a half floor,

the wall?

A The two and a half floor.

Q What is that, a shelf?

A A room.

Q And it has shelves.

A (Indicating in the affirmative)

Q And some were in your office

A That's correct.

Q And that was in ‘85, ‘86. Do you know which

of the things that are here today in the ‘85 - strike that. When

were all of the files that have been marked here now, these

three boxes plus two file folders moved to the vauit?

A About a year ago.

Q About a year ago. Okay. Now, do you know

of these portions of the file, until 19 - you looked at these files,

I guess, yesterday with Mr. Paulk; correct?

A That's correct.

Wii Bates Aaah kat SE SAR bah asec RAM Rte

121

Q Prior to that time had you ever had occasion to

look at these files?

A Um hum.

Q Okay. Did you have occasion to look at these

files in say 1985?

A I have off and on since I’ve been here.

Q Okay. And in say the 1985 time period, were

you in court when Gloria testified?

A Yes, I was.

Q Okay. So prior to Gloria reorganizing these

file, as she testified, did you have occasion to look at them?

A I did.

Q Were they in the condition that they are

presently in terms of organization and neatness?

A No, they were not.

Q Okay. Now, what portions of these files during

the period 1985 through ‘88 were in the vault?

A I don’t - I couldn’t tell you.

Q What portions of these files during that period

1985 through 1988 were in the wail in the two and a half floor?

A I couldn’t tell you.

Q And what portions of these files were in your

office during that period of time?

122

A I could not tell you. It’s whatever was -

whatever we had the most activity on is what I kept in my

office. If a person were to ask for Walter Steinhorst I would

furnish them that.

Q So if somebody came in and asked for Walter

Steinhorst, what would they be given?

A Walter Steinhorst, boxes, usually anything

other than depositions or extra copies of files.

Q Okay. So that would be what was in your

office.

A Probably not the depositions, things that they

weren’t generally interested in looking at.

Q Now, if somebody came in and asked for File

Number 77-708 or all of the pieces of paper in that file, what

would they be given?

A If they were to ask for that, that’s what they

would be given.

Q What you just described before as Steinhorst

file?

A Yes, sir.

Q Okay. In 1988 - strike that. In 1986, how

many clerks were in the office?

A In the criminal division or --

Q Yeah, criminal division.

A Seven, I believe.

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123

Okay. Was there a person by the name of

Yes, there was.

And what was Dawn’s last name?

At the time?

Oh, she changed her names?

Shoenauer (phonetic).

Dawn what?

Shoenauer.

Is she still with Bay County?

Yes, she is.

And was there a Patty Smith?

Yes, there was.

And is Ms. Smith still here?

No, she’s not.

I see. And in 1986 was there any clerk that

had specific responsibility for Mr. Steinhorst’s files?

No, there was not.

Okay. And indeed did you have specific

responsibility for them?

Not specifically for that file.

124

Q And your testimony is during that period some

of the files were in your office. By your office, what do you

mean; the clerk’s office there or your personal office?

A The criminal division office.

Q Okay. And somewhere on the wall, on the two

and a half floor, and somewhere in the vault.

A That’s correct.

Q And also somewhere during that period of time

I guess some of these files were given to Gloria because Judge

Turner got assigned the case; right?

A Within the criminal division.

Q Now, do you personally know what - strike

that. Have you ever met Ms. Cox prior to seeing her in court

today?

A I don’t recall.

Q Okay. Do you know what files she was given

in 1986 when she came over here?

A No, I do not.

Q Do you know if they were the files in your

office?

A No, I do not.

Q Do you know if they were the files on the wall

in the two and a half fioor?

A No, I do not.

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125

Q Do you know if they were the files in the

basement?

A No, I do not.

Q Do you know if in fact whatever clerk, whether

it was Dawn or Ms. Smith, that got the files went to all of those

three locations and got files from all those three locations to

give to Ms. Cox?

A Ms. Smith would not have been able to get it

from the vault.

Q I see. And you don’t know what files were in

the vault.

A No, I don’t.

Q Would Dawn have been able to get them from

the vault?

A No.

Q What files were down in the vault in ‘86?

A A portion of the Sandy Creek.

Q But what types of files would have been put in

the vault?

A First degree murder case, anything which had

evidence on it.

Q 1 think your testimony, and correct me if I’m

wrong, things were active, they were kept up because there

were requests; right?

A That’s correct.

126

Q In 1986 was Mr. Hughes’ case active?

A Not that I recall.

Q Is it possible that Mr. Hughes’ case files were

in the vault in 1986?

A It’s possible.

MR. ALEXANDER: No further questions.

MR. PAULK: I just have a few questions, Judge.

RE-DIRECT EXAMINATION BY MR. PAULK:

Q Let’s put some time frames for somebody has

requested. Say - you’re familiar that Gloria redid these in

1988.

A | am.

Q And broke them down into defendants,

regardless of the case number.

A That's correct.

Q Now, have you gone - this is prior to 1988.

Excuse me, 1988 she did this. Prior to 1988 if you went and

asked for Sandy Creek or if you asked for77-708, what would

you have gotten? If you asked for all those files?

A The Sandy Creek files with all of the pleadings.

Q With all of the defendants.

A That’s correct.

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127

Q Okay. Now, quite apparent these record are

maintained in the clerk’s office. The clerk’s office consists, I

believe, actually where the active files are going on is right

downstairs on the first floor.

A That’s correct.

Q Where the public can come in. In 1986 - well,

let’s start with 1987, or let’s start with 1986 when Judge

Turner was assigned Mr. Steinhorst’s 850. Would that have

then become an active case?

A It would have.

Q And usually it would then be maintained

downstairs where people could get access to it?

A Yes, sir.

Q Okay. And I believe the exhibits we have here

today were in the vault until today when it became an active

case and you brought them out.

A That’s correct.

Q Now, the clerk’s office not only has the office

downstairs, which is the one where the active cases are, you

have, you store files downstairs in the courthouse, in the

basement.

A That’s correct.

Q You have a place called the two and a half

floor.

A (Indicating in the affirmative)

Q Which is, you know, it’s right out here between

the third and the second floors.

A Yes.

Q Okay. And I believe there are records that are

maintained now in the courthouse annex.

A That’s correct.

Q Back in 198 - prior to 1988, when these - well,

let me ask you this. When you went and gathered these files

up, at my request, were they in one location?

A They were.

Q And the practice back in 1986 or ‘87, would

the quote Sandy Creek files, would they be maintained in one

location?

A No, they would not.

Q How would they be maintained then?

A Depending on what the case file consisted of.

The pleadings were kept together, the depositions, things like

that would be kept together and any evidence would be kept in

another...

Q Okay. That’s the, the pleadings. Now, while

we're talking about the pleadings what do you refer to when

you're referring to pleadings?

A Motions, orders, anything signed by the judges,

notice of hearings.

Q That would be kept in one place together.

A That’s correct.

Q Then you would have depositions, and they

might be kept in a separate place.

sani Gelade:

129

A That’s correct.

Q Okay. And then the evidence might be kept in

another place.

A That’s correct.

Q And in fact I did not request you to bring the

evidence up here today, did I.

A No, you did not.

MR. PAULK: That’s all I have, Judge.

RE-CROSS EXAMINATION BY MR. ALEXANDER:

Q You testified about what the general procedures

were in 1986. Do you know specifically what documents from

the Sandy Creek cases were in your office in 1986?

A No.

Q Do you know specifically what documents

relating to Charlie Hughes’ case were in your office, if any, in

1986?

A. No, I do not.

Q Okay. But you do that in fact some of the

documents that are here today in 1986 were down in the vault.

A That’s correct.

Q And you do know that some of the documents

that are here today were also up on the two and a half floor.

A That’s correct.

130

Q And you further know specifically with respect

to this case that Dawn and Ms. Smith would not have been able

to give access in 1986 to the documents in the vault.

A That’s correct.

Q Do you know if in fact the two orders that are

Defendant’s 1 and 2 here were in the vault in1986?

A They should not have been.

Q Do you know if they were?

A I do not know --

Q Is it possible that they were in the vault?

A Not if I kept the records.

Q Is it possible that they were in the vault?

A Not to my knowledge.

Q Do you know in fact that they were in your

office?

A No, I do not.

Q Do you know if they were on the two and a

half floor?

A No, I do not.

MR. ALEXANDER: I have no further questions.

MR.PAULK: I don’t have any further questions either.

Your Honor, at this time I would like to move into evidence -

excuse me. Patty Smith, she’s deceased now; is that correct?

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131

THE WITNESS: That’s correct.

MR. PAULK: Okay. And Dawn, I believe, is still

employed downstairs.

THE WITNESS: Yes.

MR. PAULK: All right. I have no further questions

of this witness, Your Honor, and move into evidence State’s

exhibit 1 through 4.

THE COURT: All right. You may step down. And

the Court will allow the State to mark in evidence the various

documents.

MR. PAULK: Can she go ahead and be excused

downstairs?

MR. ALEXANDER: Yes.

THE COURT: That have been identified previously.

MR. PAULK: I don’t have any other witnesses, Your

Honor. Dawn's available, I don’t know if she can add or

subtract to anything in this case. She’s probably at lunch now.

MR. ALEXANDER: I have no further witnesses.

MR. PAULK: I have none either, Judge.

THE COURT: Do you want to present any argument

or do you want to do it by written memo or what's your

preference?

MR. ALEXANDER: I'll be happy to, you know, |

would be happy to argue it now with the Court or submit a

post-hearing memo when we've had a chance to review the

transcript.

132

MR. PAULK: I don’t need to review the transcript,

Judge.

MR. ALEXANDER: Whatever works is easy for Your

Honor.

MR. PAULK: I have no problem with submitting a

brief or arguing it now.

THE COURT: I'll leave it to your preference.

MR. ALEXANDER: Why don’t we submit a brief

afterwards, both sides can do it. I don’t know how long it

takes to prepare a transcript, as long as I’m going to do it I

would just as soon have the record in order to submit the

briefs.

MR. PAULK: I've got no problem with that.

MR. ALEXANDER: Shall we say we'll submit

either do it exchange or do it simultaneous with say twenty

days, thirty days after we get the record of the transcript?

MR. PAULK: I have no problem with simultaneous,

twenty days, if the Court then requests any clarification or

additional argument you can say hey look, | need some

additional. So why don’t we do it simultaneous.

MR. ALEXANDER: And if the Court would, you

know, entertain or have some questions it wants, maybe we

could have another telephonic hearing to answer whatever

questions or additional argument if you want.

THE COURT: All right. So I'll note on the record it

will be twenty days after receiving the transcript from the court

reporter and if necessary I can contact counsel by telephone

conference regarding any clarification and the memos be

submitted, like I said, within twenty days.

133

If somebody gets in ten days or somebody waits until

fifteen or twentieth day, but they’ll come in simultaneous.

MR. PAULK: Yes, right. Within twenty days they

will be filed one way or the other.

THE COURT: One way or the other, okay.

MR. PAULK: Before we conclude, did we put in Ian

Haigler’s affidavit in? I know it’s in the general exhibit, State’s

exhibit.

MR. ALEXANDER: Which was marked as - forget

which number it was.

THE COURT: I'm sorry.

MR. ALEXANDER: I'm sorry, I don’t believe that

we did. I think I called, but I may have misled you but

mispronounced it. Could put it in as part of the record, if you

want to put it in.

MR. PAULK: It’s part of the record, it’s in here, it’s

in that file, but... .

THE COURT: You want to call attention to it so I'll

know where to look.

MR. PAULK: Yes. Let's mark it into evidence, right,

as an additional exhibit. State’s Exhibit 5.

THE COURT: Okay

MR. PAULK: All that’s in the file.

MR. ALEXANDER: We assume it’s in the file

THE COURT: All right. And that will conclude the

hearing?

134

MR. ALEXANDER: Thank you very much.

THE COURT: You’re welcome.

Court will be in recess.

MR. ALEXANDER: I guess there needs to be an

order transporting him back or have you done that?

THE COURT: I don’t know if an order needs to be

entered. I'll enter an oral order to transfer him back into

custody.

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135

STATE OF FLORIDA CERTIFICATE

COUNTY OF BAY

I, Jerry S. Edwards, Official Court Reporter of the

Fourteenth Judicial Circuit of Florida, do hereby certify that

the preceding pages numbered | through 136 constitute a true

and correct transcript of the proceedings described

hereinabove, that I was authorized to and did report the

proceedings at the time and place hereinabove set forth.

DONE this 31st day of January, 1995.

OFFICIAL COURT REPORTER

136

Supreme Court of Florida

No. 82,188

WALTER GALE STEINHORST, Petitioner,

VS.

STATE OF FLORIDA, Respondent.

[April 21, 1994]

PER CURIAM.

We have on appeal an order of the trial court denying

relief to Walter Gale Steinhorst, an inmate under sentence of

death. The facts of the crime and procedural history of this

case are outlined in the prior opinions of Florida courts.

Steinhorst v. State, 574 So. 2d 1075 (Fla. 1991); Steinhorst v.

State, 498 So. 2d 414 (Fla. 1986); Steinhorst v. Wainwright,

477 So. 2d 537 (Fla. 1985); Steinhorst v. State, 412 So. 2d 332

(Fla. 1982). See also Steinhorst v. State, 438 So. 2d 992 (Fla.

lst DCA 1983). We have jurisdiction pursuant to article V,

section 3 (b) (1) of the Florida Constitution.

The relevant facts at hand are as follows. This Court

previously ordered the trial court below to conduct a full

evidentiary hearing pursuant to Steinhorst's petition for relief

pursuant to Florida Rule of Criminal Procedure 3.850.

137

Steinhorst, 498 So. 2d at 415. After an evidentiary hearing on

Steinhorst's 3.850 motion, Circuit Judge W. Fred Turner

denied relief in 1988. This Court affirmed the denial of relief

in January 1991. Steinhorst, 574 So. 2d at 1078. In October

1991, Steinhorst filed a motion for relief from judgment

pursuant to Florida Rule of Civil Procedure 1.540, seeking to

have Judge Turner's judgment on the 3.850 motion declared

null and void due to the judge's undisclosed conflict of interest.

Circuit Judge Don T. Sirmons denied relief on the following

bases: rule 1.540 is not the proper method to collaterally

attack a criminal judgment and sent

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