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Appellant's Brief - Florida State University College of Law

Appellant's Brief - Florida State University College of Law

Only after Matthews and

Only after Matthews and Hanlon had spoken to Smykowski was the State able to obtain an indictment against Mr. Riechmann for murder. Mr. Riechmann was indicted on January 20, 1988, on one count of first-degree murder and one count of unlawfully displaying a firearm (R. 1). The next day, Mr. Riechmann was arraigned for murder. He entered a plea of not guilty (R. 624). A new indictment was filed on January 27, 1988 (R. 1A). Mr. Riechmann was initially represented by the Public Defender’s Office, but then retained private counsel, Edward Carhart. Judge Sepe entered a pre-trial order directing the State to provide the defense “carte blanche discovery -– Total. No ifs ands or buts, no conditions. Whatever the State has, he gets” (R. 634). However, the order was ignored, and significant pieces of evidence were withheld. Mr. Carhart repeatedly had difficulty obtaining exculpatory information from the State (R.741-42; 1090-91; 1148-50; 1315-16; 1318; 1326-27; 3325;3434; 3632-33). 17 Mr. Carhart deposed the state’s witnesses, but at times, was forced to re-depose them. 17 During the 1996 collateral proceedings, the prosecutors admitted that they “whited-out” relevant exculpatory portions of discovery materials(PC-R. 5482-5489) and failed to disclose evidence favorable to the defense gathered in Germany. However, prosecutors could not remember a reason why the materials were not disclosed (PC-R. 5505, 5508, 5513). 16

Mr. Carhart testified, “if you had a grid in a discovery procedure with open file being on one end and no discovery being on the other end, we were close to the no discovery end” (PC-R2. 212). The State repeatedly gave its expert witnesses “new information,” causing their opinions to shift in favor of the prosecution. For example, Rhodes, the state’s serologist, who tested the blanket that Mr. Riechmann said he was sitting on at the time of the shooting, had on two occasions obtained negative results for the presence of blood. Only during his third try did he find 21 spots of presumptive blood (R. 1090- 91;1326-27;3325-27;3434;3632-33). 18 Mr. Carhart also deposed Smykowski, the jailhouse informant. During the deposition, Mr. Carhart repeatedly tried to elicit Smykowski’s motivation for testifying, but the State thwarted his attempts at every turn (PC-R2. 212-13, 216). 19 Mr. Carhart sought to discover Smykowski’s motivation 18 Rhodes was first deposed on May 24, 1988. He did not receive the plaid blanket for testing until June 29, 1988. (R. 3280). Even then, it took three tries before he obtained a positive result that was reported to the defense during trial. 19 For example, during Robert Stitzer’s deposition on April 15, 1988, he mentioned making phone calls and speaking to Smykowski’s eight-year-old daughter (Stitzer 4/15/88 deposition at 81). Mr. Carhart tried to explore this further. But, the State objected to any of Mr. Carhart’s efforts to discover the nature of the relationship between Stitzer and Debbie Schaefer (Stitzer 4/15/88 deposition at 82-83). Ms. 17

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