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Appellant's Brief - Florida State University College of Law

Appellant's Brief - Florida State University College of Law

een given to the

een given to the defense. 20 (R.1661-63; 2614-16; 3433-35). 4. Police reports that contradicted the testimony of the State’s expert serologist, Dr. Rhodes, were not disclosed. Three police reports of Detective Hanlon showed that Rhodes, upon his examination of the rental car, said that “the passenger window was no more than six inches from being fully closed at the time of the shooting,” (PC-R.,Def. Ex. HHH), not the 3 to 3 and a half inches Rhodes testified to at trial. The complete 11/2/87 police report of Detective Trujillo concerning the window height was not disclosed; a paragraph was redacted and never provided to defense counsel. The withheld paragraph stated that the crime lab indicated that the “window had to be all the way down.” The prosecutors testified that there was no explanation for why this paragraph was not disclosed to the defense except that “somebody made a mistake...I would say that report is wrong”(PC-R. 4718). “The author of that report didn’t always have all the facts straight” (PC-R. 4737). 21 If that were true, it was impeachment evidence that also should have been disclosed. 5. Also undisclosed was the 10/28/87 report of Officer Psaltides, three days after the crime, indicating that Ms. Kischnick’s father had reported that the couple had known each other for about “15 years and that their relationship was good. He had no harsh comments about Mr. Riechmann” (PC-R., Def. Ex. KK). 20 Mr. Riechmann catalogued the missing photographs from the proof sheets provided at trial. The photos were never turned over to the defense and are still “missing.” (PC-R. 247). 21 Det. Trujillo has since been convicted of charges associated with racketeering, conspiracy to commit racketeering and bribery and is currently serving a prison sentence. Cf. Trujillo v. State, 764 So. 2d 852 (Fla. 3 rd DCA 2000). 20

6. Also undisclosed were 37 statements from fact witnesses gathered in Germany (PC-R. 5478). DiGregory testified at the evidentiary hearing that he provided Judge Solomon with the German witness statements, but failed to give them to the defense. He said he did not know why he failed to turn the statements over to the defense. No evidence concerning the 37 German witnesses was presented to the jury (R. 600). The German witness statements have now been lost by the Miami court. Prosecutors testified that they “whited-out” relevant exculpatory portions of discovery materials(PC-R. 5482-5489) and failed to provide favorable information they had to the defense, including the favorable statements gathered in Germany. However, the prosecutors could not recall why the non-disclosures occurred (PC-R. 5505, 5508, 5513). 22 Prosecutor DiGregory testified that he actively advocated for sentencing consideration in federal court for Smykowski after Mr. Riechmann was convicted. DiGregory testified that he did not advise the defense of his intent to move for a reduced sentence for Smykowski (PC-R. 5490). 23 22 Prosecutor DiGregory admitted that the withheld information would have been favorable to the defense, and that he did not recall who actually made the deletions from the police reports. He did not know whether he, “Ms. Sreenan or someone at his direction” deleted the exculpatory information. He agreed that the police reports contradicted the State’s case (PC-R. 5477, 5482, 5483). 23 At the evidentiary hearing, a letter dated three weeks after trial but before sentencing was admitted into evidence from DiGregory to the U.S. Parole Commission on Smykowski’s behalf. When questioned about his intent, DiGregory said that 21

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