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Appellant's Brief - Florida State University College of Law

Appellant's Brief - Florida State University College of Law

conclusions testified to

conclusions testified to by state’s witnesses. While Judge Gold did not find that the nondisclosures undermined confidence in the outcome in 1996, an evaluation of the cumulative effect of all the nondisclosures in 2002 should have included consideration of the undisclosed police reports authored by Hanlon. However, Judge Bagley failed to mention, let alone consider, these undisclosed police reports in his order denying relief. d. 1996 evidence regarding Smykowski At the 1996 evidentiary hearing, DiGregory was confronted with a letter he wrote to the U.S. Parole Commission noting that Smykowski was “instrumental” in achieving Mr. Riechmann’s “guilty verdict and recommendation of death in the electric chair.” He wrote that Smykowski’s “testimony was crucial because the case against Mr. Riechmann was circumstantial.” The letter concluded: I urge you in the strongest possible terms to give him the utmost consideration at his next parole review. (PC-R. Defense Exhibit CC). In 1996, DiGregory testified: A. ...What I’m saying is that I don’t know when I wrote - - when I got the notion to write the letter. It is clear that I wrote it after the trial was over. 96

(PC-R. 5490 ). Q. Well, is it equally clear that you contemplated writing it during the course of the trial? A. Sure. DiGregory identified his handwritten notes of his meeting with Robert Stitzer, the man who introduced Smykowski to the prosecution (PC-R. Def. Ex. DD). The notes contained a mysterious entry. Collateral counsel opined that the notes said, “Reno to communicate with magistrate to have him reward.” The prosecutors at the 1996 evidentiary hearing suggested the notes said, “magistrate to have him remand.” DiGregory testified that the notes were his and said, “Reno to communicate with magistrate to have him remain” (PC-R. 5461). 88 DiGregory said the note referred to Stitzer, but Stitzer did not have a problem with being transported, while Smykowski did. Smyknowski wanted to stay close to his young daughter. The notation directly above the sentence referring to “Reno” said: –Walter may be hostile because he’s been shipped to 88 DiGregory gave this testimony despite the obvious “d” written on the end of the word “reward.” Even to the untrained eye comparing DiGregory’s handwriting with the note he acknowledged writing, the “d” is written the same every time (PC-R. Def. Ex. DD). 97

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