Through shaky eyewitness descriptions from neighbors,
Chiquita Lowe and Gerald Davis, as well as the victim's mother, the
investigation came to be centered on a black male, about six feet tall,
with muscular upper arms, shoulders and chest, a dark complexion, about
thirty years old, and wearing an orange t-shirt and jeans. Lowe
testified that, on her way home, she was flagged down by an unidentified
black male with a full beard, scraggly hair, and a droopy eye. From a
composite sketch the police put together with Davis and Lowe, Frank Lee
Smith was arrested on April 29, 1985.
The prosecution relied on the identification of Smith
by the victim's mother and Smith's criminal history. She identified him
as the man she saw leaving her home through the living room window on
the night of the murder. At trial, the defense's insanity plea failed
and the jury unanimously recommended the death penalty. Although former
Governor Bob Martinez signed a death warrant in 1989, Smith was able to
win a stay of execution in January 1990.
In 1998, the state Supreme Court ordered a trial
judge to hold an evidentiary hearing based on Smith's claim of new
evidence, which had nothing to do with DNA evidence. During this trial,
three witnesses including the victim's mother, testified against Smith.
But eyewitness Lowe changed her story, having been shown a picture of
another suspect by a defense investigator, and the defense began
requesting DNA testing. Only after Smith's death was a blood sample from
Smith obtained by the state prosecutor's office, which was then tested
against a semen sample taken from the victim's vagina. The samples were
sent to the FBI laboratory, which reported that Frank Lee Smith was
excluded as the depositor of the semen.
On December 15, 2000, eleven months after his death,
and fourteen years after his 1986 conviction, Frank Lee Smith was
exonerated based on exculpatory DNA testing results. These results not
only cleared Smith of the crime, but identified the true perpetrator,
Eddie Lee Mosley, a convicted rapist and murderer, currently living in
the Tacachale State Center for mentally retarded defendants in
A. The original trial
On May 9, 1985, Frank Lee Smith
was indicted for first-degree murder, sexual battery, and burglary in
the Seventeenth Judicial Circuit, Broward County, Florida. Mr. Smith was
tried in January 1986 and convicted on all three counts (R. 1252). The
Florida Supreme Court has noted the jury in this case had some
difficulty in reaching a guilty verdict:
Of the witness identifications
presented at trial, that of [Chiquita] Lowe clearly was the most
credible. After the jury had deliberated for five hours, it requested
that it be permitted to rehear Lowe's testimony. The court declined.
One hour later, the jury repeated its request. The court acceded. Two
and one-half hours later, the jury rendered its verdict.
Smith v. Dugger, 565 So. 2d
1293, 1296 (Fla. 1990).
After a one-day penalty phase,
the jury recommended a death sentence (R. 1364). On May 2, 1986, Circuit
Judge Robert Tyson sentenced Mr. Smith to death (R. 1440). The Florida
Supreme Court affirmed on direct appeal. Smith v. State, 515 So. 2d 182
(Fla. 1987). The United States Supreme Court denied certiorari. Smith v.
State, 485 U.S. 971 (1988).
Mr. Smith was convicted based on
the testimony of three "eyewitnesses" -- none of whom actually saw the
crime occur. The victim's mother, Dorothy McGriff, saw a man outside her
house just before she found her daughter. Chiquita Lowe testified that a
man flagged down her car near the victim's house on the night of the
crime and asked her for money. Gerald Davis was walking on the victim's
street on the night of the crime when a man approached him and offered
him drugs. There was absolutely no physical evidence linking Mr. Smith
to the crime or the crime scene -- no hair, no fingerprints, no blood,
no fibers matching Mr. Smith were found.
The Florida Supreme Court noted
in 1990 that of the three eyewitnesses, Chiquita Lowe "clearly was the
most credible." Smith, 565 So. 2d at 1296. The Court specifically noted
that Dorothy McGriff "could not identify [the man's] face. She later
identified Smith based only on his shoulders." Id. at 1295. Of
Gerald Davis, the Court observed that "[he] could not remember `how the
guy looked.' He testified that Smith looked like the man but he could
not identify him positively." Id.
On April 14, 1985, eight-year-old
Shandra Whitehead was raped and murdered in Ft. Lauderdale, Florida. The
crime occurred between 10:30 or 10:40 p.m., when Shandra's aunt checked
on her and her brother Reginald (R. 608), and 11:30 p.m., when Shandra's
mother arrived home from work and found her daughter (R. 635). Ms.
McGriff testified that as she pulled her car into the driveway that
night, she saw a man at the side of the house reaching in through a
window (R. 635-37). Ms. McGriff yelled at the man and then jumped out of
the car, grabbed a slingblade, and chased the man away from the house
(R. 638). The man ran from Ms. McGriff and jumped over a chain-link
fence into the backyard (R. 639). Ms. McGriff then went into the house
where she found her daughter (R. 641).
In addition to Ms. McGriff, the
police found two witnesses whom they believed saw the man who raped and
killed Shandra Whitehead -- Gerald Davis and Chiquita Lowe, two
teenagers who lived in the victim's neighborhood. Mr. Davis testified
that on the night of the murder he was out walking at about 9:30 or
10:00 p.m. when a man called to him from the empty field across the
street from Shandra's house (R. 745-46). As Mr. Davis continued walking,
Chiquita Lowe drove up to him and stopped to talk (R. 747). After Ms.
Lowe drove away, the man ran to Mr. Davis; he told him that he had just
moved from New York, offered him drugs, and made a sexual proposition
(R. 748). Mr. Davis testified that he "paid him no mind because [he]
didn't want to be bothered." (R. 749).
Chiquita Lowe testified that at
about 10:30 p.m. she was driving down Shandra's street when a man came
out of Shandra's yard and flagged her down; the man approached the car,
leaned into the driver's side window, and asked for money (R. 668-69).
The man left when Ms. Lowe told him that she had no money (R. 669). Ms.
Lowe continued driving and stopped about a minute later to talk to Mr.
Davis (R. 673).
On April 17th, Mr. Davis and Ms.
Lowe assisted the police in the creation of a composite sketch of the
suspect (R. 675, 752). Detective Amabile testified that Ms. McGriff did
not participate in drawing the composite sketch because Ms. Lowe and Mr.
Davis "had more of an eye for detail" and because Ms. McGriff was "emotionally
distraught" and was "a simple woman and could not articulate what she
was trying to tell us" (R. 886-87). Detective Scheff testified that Ms.
McGriff did not participate in creating the composite because he was "fairly
certain" that she had seen the same man as Lowe and Davis; he also
agreed that Lowe and Davis "were much more articulate than she was." He
explained that "[t]he ability to do a composite depends upon the witness'
ability to visualize the person." (R. 969). Before the composite sketch
was distributed in the neighborhood, it was shown to Ms. McGriff who,
according to Detective Scheff, "gave . . . a very positive reaction."
Mr. Smith was arrested outside
his home on April 18, 1985 (R. 855). Detective Scheff had received a
call from Ms. Lowe regarding a man who had come to her house with a
shopping cart trying to sell a television (R. 971). Detective Scheff
testified at trial and in his deposition that Ms. Lowe spoke to the man
with the television and immediately recognized him as the man she saw
near the crime scene (R. 1031-33). Detective Scheff explained that Ms.
Lowe believed that the man had used the television as a ruse to get to
her because he somehow knew she was a witness in this case (R. 1033).
However, Ms. Lowe testified that when the man came to her house with the
television, she was asleep (R. 676). Her family members spoke to the man
with the television, saw the composite sketch, and became convinced that
he was the same man (R. 677-78). Ms. Lowe looked out a window and saw
the man walking away through an alley across the street from her house
(R. 677). Mr. Smith was arrested several hours later. He was never seen
by the police with either a shopping cart or a television (R. 856).
The defense strategy at trial
was to challenge the three witnesses' identifications of Mr. Smith and
to suggest that the police had not properly eliminated other suspects.
As the Florida Supreme Court noted, the testimony of Ms. McGriff and Mr.
Davis identifying Mr. Smith was extremely weak: Ms. McGriff, though
positive about her identification, admitted that she did not see the
man's face, and Mr. Davis, who reluctantly identified Mr. Smith,
repeatedly told the police he did not remember what the man looked like.
Assistant State Attorney William Dimitrouleas' closing statement
demonstrates that the State had only one strong witness who could
identify Mr. Smith. Mr. Dimitrouleas told the jury:
I don't care how much Gerald
Davis' testimony was attacked, how much his identification is attacked,
there has never been any question as to the fact that there was a
weird strange guy that was talking to Gerald Davis that evening and
what he said was bizarre.
(R. 1156). Mr. Dimitrouleas then
bolstered Mr. Davis' identification and encouraged the jury to overlook
his inconsistent statements and hesitation by reassuring the jury that
he and Ms. Lowe saw the same person (R. 1158). Mr. Dimitrouleas also
reassured the jury that Ms. McGriff's identification of Mr. Smith based
only on his shoulders is reliable because Mr. Smith has a "distinctive"
upper body (R. 1160).
On April 15, 1985, Ms. McGriff
gave the following description of the man to the police: "medium build,
heavy in the chest, lower haircut, black man, dark skin with jeans, pair
of brown suede shoes, orange T-Shirt with writing across the chest." (R.
650). Ms. McGriff testified that when she gave her first statement to
the police she did not know what the man looked like (R. 651) and that
she told the police she would not be able to recognize the man's face
(R. 658, 663). At her deposition, Ms. McGriff testified that she could
not describe the man's face (R. 655). Ms. McGriff testified that she
only saw the man for a couple seconds (R. 651-52). She explained:
Q Isn't it true you weren't
actually paying too much attention to the man itself? You were
basically interested in getting him away from your window?
A That is true.
Q Isn't it true when the
person turned his face around it was flashing so quickly you didn't
get a good look to see whether he was wearing glasses or not?
A That's right.
Ms. McGriff explained how she
identified Mr. Smith from the photographic line-up:
Q (By Mr. Washor) You didn't
get a good look at his face, isn't that correct?
Q Isn't it fair to say there
was nothing about this person's face that stuck out in your mind at
all because everything happened in a flash?
A Pardon me?
Q Nothing about this person
stuck out in your mind because everything happened in a flash?
Q Isn't it also fair to say
everything was dark from this person's head down to his shoulders?
Q But from his shoulders down,
you can describe his clothing because the light was shining on the
clothing; isn't that correct?
Q Wouldn't it be fair to say
you picked that picture of Mr. Smith based upon his shoulders?
Q You couldn't identify his face,
Q If I showed you a picture of
his face, you couldn't tell me whether that was the man or not; correct?
A Yes, from his shoulders.
Q Yes, I'm correct. If I show
you a picture of the face of the man you couldn't tell me?
Q You could not, correct?
Q Isn't it true that you
couldn't see the person's face at all, describe it, because it was just
a flash that you saw?
(R. 655-56). Although Ms.
McGriff testified that she identified Mr. Smith from his shoulders, his
shoulders are not visible in the photo line-up which includes only Mr.
Smith's face and neck.
Mr. Davis gave the following
description to the police: "maybe six feet, a hundred and sixty, hundred
seventy pounds, like muscular, chubby stomach, really couldn't tell, it
was dark and he had a beard that was very tacky, like he did not keep it
up and kinky hair." (R. 766). Mr. Davis testified that he was trying to
avoid the man: "I didn't really want to be bothered with him because I
did not know the guy. . . . I was like paid him no mind because I didn't
want to be bothered." (R. 748-49; see also 750, 768, 770). Mr. Davis
explained that he did not get a good look at the man because the
streetlights were out (R. 773), he was ignoring the man and hoping he
would go away (R. 777), he only looked at him for a few seconds (R.
778), and he "was never looking at him directly." (R. 776). Mr. Davis
tried to explain his numerous inconsistent descriptions:
What I'm saying, I said it was
dark. I was trying to avoid the guy. I don't remember exactly.
(R. 777). Mr. Davis told the
police that nothing about the man stuck out in his mind and that he was
unsure whether he would be able to recognize the man (R. 772, 778).
Mr. Davis could not identify Mr.
Smith from the photo line-up that was shown to all three witnesses and
insisted on seeing a live line-up before he would make an identification
(R. 1051). Mr. Davis was uncomfortable with his identification of Mr.
Smith from the live line-up because, as he told Detective Scheff, Mr.
Smith did not look as large as the man he saw on the night of the crime;
Mr. Davis explained that when he voiced his concern about Mr. Smith's
size, the police "said to me that the reason it's like that because all
the guys are between six one and six feet and that is why they all seem
the same size." (R. 757). After being reassured by the police, Mr. Davis
identified Mr. Smith.
Detective Scheff lied to Mr.
Davis: the men in the live line-up were not all between six feet and six
one. Detective Scheff tried to claim that the men were "[a]bout six feet
tall, as close as we could get. I think one was six feet tall, all
appeared to be the same." (R. 1048). However, on cross-examination, he
was forced to admit that one man was five feet ten inches tall and
another was only five feet nine inches tall (R. 1050). Mr. Smith stood
between the two shortest men in the line-up (R. 1050). Detective Scheff
refused to accept responsibility for the varied heights of the men in
I want to say this to you, Mr.
Washor, we did not measure these people. I'm basing the physical
description on what they are telling me. If they are correct, if they
know their height, then that is the correct height. If they are in
error, then these figures are going to be in error.
(R. 1049). Detective Scheff
claimed that he "tried to get as many people that physically resembled [Mr.
Smith] as possible," but he was forced to admit that two men were
obviously shorter than the others (R. 1049). Detective Scheff also
admitted that none of the men in the line-up weighed more than one
hundred and eighty pounds although the descriptions of the suspect in
this case all indicated a weight heavier than that (R. 1050). Detective
Scheff also agreed that three of the men in the line-up were
substantially younger than Mr. Smith: by fourteen, seventeen, and
thirteen years (R. 1050). Detective Amabile confirmed that Mr. Smith was
the oldest and the tallest man in the line-up and that he was situated
between the two shortest men (R. 942).
Mr. Davis also testified that
the police pressured him to make an identification and used suggestive
tactics. During Mr. Davis' first statement to the police, he said in
response to their questions that the man did not have any scars on his
face (R. 769). However, during his second statement, Mr. Davis said that
the man had a scar on his cheek (R. 788). Mr. Davis explained why his
description regarding this detail changed:
Q What, if any, recollection
do you have regarding whether the fellow had any scars?
A I don't remember.
Q Do you recall having a
conversation with the police or in a deposition later on about scars?
Q Do you recall what that
A It was, did he have a scar. I
said, I think so.
Q Would that have been based on
something that you were remembering or something that the police had
told you or do you know?
A Something that they were
Q You don't have any
recollection of the scar?
A No, I don't remember a scar.
(R. 757-58). Between Mr. Davis'
first and second statements, Mr. Smith was arrested. The police,
noticing that Mr. Smith has a scar on one cheek, realized that they
needed to alter Mr. Davis' description. As Mr. Davis explained, his
revised description of the scar on the man's cheek was based "[o]n
something that [the police] were telling me." (R. 758). Mr. Davis was
clearly confused at the trial when he tried to explain his inconsistent
statements regarding the scar: "I probably said scar at one time but I
probably said he didn't have any scars. He didn't have any scars." (R.
Detectives Scheff and Amabile
were also forced to explain Mr. Davis' inconsistent statements regarding
whether the man he saw on the night of the crime had a scar. Detective
Amabile initially confirmed Mr. Davis' memory of his first statement to
the police when he said that the man had no facial scars (R. 925).
During redirect examination, Detective Amabile changed his testimony:
Q Did you all come out point
blank and say, did the guy have any scars?
Q What exactly was Gerald
A He was asked if he had any
scars, marks, tattoos, missing gold teeth. It was all one sentence
that was asked.
Q What was his response to the
whole line of things?
Q Now when he said no, did you
catch that he was saying no to scars?
Q Had he previously told you
about a scar?
A Prior to taking a taped
statement is when he told us about the scar.
On cross-examination, Detective
Scheff clearly became defensive when Mr. Smith's attorney asked about Mr.
Davis' description of the suspect regarding the scar:
Q I believe on your direct
examination when you said when speaking to Davis during this first
statement, that he stated that the man had a scar on his face?
A That's correct.
Q Are you positive about that?
Q Would you like to refresh your
memory at all?
A No, sir.
Q Do you remember Mr. Davis
saying anything contrary during your conversation with him, your taped
conversation with him?
A Well, I know I believe I know
what you are referring to.
Q What am I referring to?
A You're referring to the
question in which he responds with a, no, to the question in reference
to scars and he responds with a negative and says, no, but I believe
that was my fault and not his.
Q Did he or did he not say that?
A If you want to refer to the
question, I'll show you what I'm talking about. I know what you are
Q The first statement, page five,
was there anything about him you remember, anything like missing teeth,
anything that stands out in your mind, scars he might have had. And his
A That's correct.
Q He did say no?
A Yes, but actually if you take
a look at that question I have really asked him four questions and
unfortunately if you are asking me why this happened, I can only --
Q I'm asking you what he said?
A He said no on the tape.
Q But it's your testimony that
when he was off the tape he said, yes?
A That's correct.
(R. 1013-14). Mr. Davis said on
tape that the man had no facial scars. Because this description is
inconsistent with Mr. Smith's appearance, Detective Scheff claimed that
off the tape Mr. Davis said the man did have a facial scar. Although
Detective Scheff admitted that a facial scar would be "an important
factor" to use in identifying a suspect, he did not think that Mr. Davis'
untaped description of the scar was important enough to be included in
his handwritten notes (R. 1014-15).
Mr. Davis testified at his
deposition that the police were also giving him hints and speaking in a
suggestive manner when they showed him the photo line-up (R. 786). When
he viewed the live line-up, the police instructed him to pick out the
person who "looks like" the man he saw near the crime scene; they did
not tell him to pick only the man he actually saw (R. 789). In addition,
Mr. Davis was shown a picture of Mr. Smith immediately before he viewed
the live line-up (R. 789, 797-98). At his deposition, Mr. Davis
testified that the police instructed him to pick out the man who looked
most like the man in the picture he had just been shown (R. 790).
Mr. Davis admitted that he was
unsure of his identification but that he felt compelled by the police to
make an identification:
Q Isn't it true you can't
honestly swear to me right now that the man you picked out in the live
line-up is the same man you saw that night?
A No, I can't say he is exactly
the same guy but he looks like the guy.
Q My question is: You can't
honestly say that is the same man, can you?
Q But the police had you fill
out a form, correct, to indicate that you picked out number five or
Q And didn't you keep on saying
you weren't sure, only that he looks like the guy?
Q Isn't it true that if the guy
came up to you right now you couldn't say whether it was the guy you saw
on the street or not?
Q Why did you identify Mr. Smith?
A I identified him as the guy I
picked out of the line-up and the guy I talked to but - which I have
been saying from the beginning, I don't remember how the guy looked.
Q Didn't you feel compelled by
the police in the live line-up to pick somebody out?
Q Isn't it true that the man you
picked out in the live line-up, Frank Smith, was not as big as the guy
you saw on the street?
Q That's true, isn't it?
Q Didn't you keep saying to the
police, I don't know if this is the guy and didn't they keep saying to
you, don't feel that you are going to send an innocent man to jail in an
effort to get you to stick to your story?
Q Wasn't it apparent to you that
the police wanted you to make an identification?
(R. 792-94)(emphasis added). Mr.
Davis also testified that the police did not record his statements when
he told them he was unsure of his identification; the only statement
that was taped was his reluctant agreement with the detectives that Mr.
Smith was the man he saw near the crime scene (R. 795).
Detective Scheff admitted that
after choosing Mr. Smith from the line-up Mr. Davis "began to say that
he wasn't sure that the person he had picked was the same person he had
seen that night." (R. 991). Detective Scheff offered his own opinion
about Mr. Davis' equivocation:
Well, it became clear that it
was not the identification he was having a problem with but it was his
testimony. The fact that he was going to have to appear in court, that
he was reluctant to.
(R. 992). Despite Detective
Scheff's opinion that Mr. Davis was a reluctant witness, his
inconsistent statements and hesitation about the identification of Mr.
Smith were caused by his doubts that Mr. Smith was the man he saw on the
night of the murder.
Because of Mr. Davis’ hostility
towards the State and allegations of police misconduct, Assistant State
Attorney Dimitrouleas requested that Mr. Davis be called as a court
Based on his changing his
testimony from the sworn statement to the police to what he said on
deposition. I can't vouch for his credibility. He's saying basically now,
before he made the live line-up identification that the police showed
him a photo line-up, again, which they emphatically deny. Contrary to
what he said in the sworn statements he's positive he's now saying, all
he can say is the guy looks like the guy.
(R. 742). Over defense objection,
the court granted the State's request thereby allowing the State to
challenge Mr. Davis’ claims of police misconduct in getting him to
identify Frank Lee Smith.
Chiquita Lowe was the State's
strongest identification witness at Mr. Smith's trial. She identified Mr.
Smith as the man she saw on the victim's street on the night of the
crime (R. 707). However, several aspects of Ms. Lowe's testimony reveal
that, like Gerald Davis, she was manipulated by the police. Most telling,
Ms. Lowe testified that the man she saw had a droopy eye "like it was
weak. It needed glasses." (R. 683). Ms. Lowe and Mr. Davis testified
that the man they saw was not wearing glasses (R. 696, 764). Ms. Lowe
told the police about the droopy eye, and the composite sketch clearly
indicates that both she and Mr. Davis observed this distinctive
characteristic. This description presented two problems for the police
after Mr. Smith's arrest: first, Mr. Smith does not have a droopy eye,
and second, Mr. Smith is legally blind and cannot function without very
thick glasses (See Dr. Hathaway testimony first proffered in 1991). Ms.
Lowe was coached by the police to offer her inexpert opinion about the
man needing glasses in an attempt to reconcile her identification of Mr.
Smith with her testimony about the man's droopy eye and lack of glasses.
Ms. Lowe's testimony was also
inconsistent regarding the clothing worn by the man she saw on the night
of the crime. The police found a blue windbreaker in a truck across the
street from the victim's house (R. 962). Apparently, the police wanted
to link the windbreaker to the crime although it was of no evidentiary
value. Ms. Lowe testified that the man she saw on the night of the crime
was wearing a blue windbreaker (R. 682). However, in her initial
statement to the police, Ms. Lowe said she was unsure what the man was
wearing, but thought she may have seen a white shirt or a white shirt
with red stripes (R. 690). Ms. Lowe never mentioned a blue windbreaker
to the police (R. 698).
Ms. Lowe's trial testimony also
omitted an important detail from her initial description of the man she
saw. She told the police that the man had big arms and a big chest (R.
688). Ms. Lowe initially denied this statement because when she viewed
Mr. Smith in court she realized that he did not match the description.
Finally, Ms. Lowe, like Gerald Davis, told the police that the man she
saw did not have any scars on his face (R. 706-07). Ms. Lowe admitted at
Mr. Smith's trial that he has a scar on one cheek (R. 707).
In addition to challenging the
three witnesses' identifications of Mr. Smith, defense counsel also
suggested that the police had not sufficiently eliminated other suspects.
Detective Scheff testified that he investigated two other men as
suspects: Arcy Nealy Williams was eliminated because he had an alibi (R.
963-64), and James Freeman was eliminated because the witnesses did not
choose him from a line-up (R. 965-66). Detective Scheff also testified
that Edwin McGriff, Eddie Lee Mosley, "Gator Mouth," and "Big John" were
suspects (R. 1022, 1024-25).
Detective Scheff testified that
other than Freeman, no other suspects were ever shown to the witnesses
in either a live or a photo line-up (R. 946, 1026). Detective Amabile's
testimony is consistent that he showed the three witnesses two photo
line-ups: one including James Freeman and the other including Frank Lee
Smith (R. 881-82, 907). The two photo line-ups were offered into
evidence by the State (State Exhibit 105, line-up of James Freeman at R.
880; State Exhibit 81, line-up of Frank Lee Smith at R.--- ). Detective
Amabile testified that he and Scheff followed up on the names of all
suspects who came to their attention and that they eliminated all other
suspects to their satisfaction (R. 948-49). Detective Scheff explained
that once a name is brought to his attention as a possible suspect, "I
have an obligation to follow up certainly and eliminate them as
potential suspects." (R. 1055). In regard to this investigation, he
testified that he had eliminated all possible suspects (R. 1056).
Detective Scheff was
specifically asked about Eddie Lee Mosley and about the victim's
Q Was Eddie Lee Mosley ever a
suspect in this case?
A Eddie Lee Mosley was a
suspect in this case along with Edwin McGriff. Initially when we first
began investigating the case, really had no specific direction to go
(R. 1024). Detective Scheff
attempted to downplay the significance of being a suspect in this case
by explaining that "[a]t one point or another almost everybody in Fort
Lauderdale was a suspect." (R. 1023).
During his deposition, Detective
Scheff did not mention Eddie Lee Mosley at all despite Mr. Smith's
attorney's exhaustive questioning regarding the four day investigation
of this case. Detective Scheff detailed his activities for each day and
each time was asked whether anything else was done:
Q Did that finish it for the
A Yeah, sure did.
(Scheff depo at 41).
Q Anything else happen on the
17th of any consequence?
(Sceff depo at 48).
Q Was anything else done on the
18th that we haven't discussed?
(Scheff depo at 69).
Q After the 4 a.m., April 19th
meeting with the Irvings, Bertha and family, where did your
investigation take you?
A Then, it took me home to bed.
(Scheff depo at 81). Detective
Scheff repeatedly told Mr. Smith's attorney that nothing else had been
done that was not discussed. He provided information about other
suspects, including a tip regarding a possible suspect named "Gator
Mouth" that was received after Mr. Smith's arrest (Scheff depo at
93-95), and discussed potential evidence that was determined to be
unreliable and was not used in the case against Mr. Smith (Scheff depo
at 91-92). The deposition concluded with the following question and
Q Is there anything else that's
happened in this case that we haven't discussed?
A I don't think so. Not that I
can think of.
(Scheff depo at 97).
When specifically asked about
relatives of the victim, Detective Scheff did not tell Mr. Smith's
attorney that Eddie Lee Mosley, Dorothy McGriff’s cousin, was
investigated as a suspect:
Q Did you have, at this point
in time, anybody in mind?
A You mean, as a suspect?
A Oh, no.
Q How about any relative of
the deceased, uncles, cousins?
A We had booked an individual
by the name of Edwin McGriff, who is a cousin to Dorothy [the victim's
mother]. As I had indicated earlier, we checked with - on the first
night, for similar crimes. And, at that point in time, we discovered
that Edwin McGriff had been accused, I think, in 1982, of a sexual
battery of a minor black female child, and subsequently, we sat
Dorothy McGriff down and explored the possibility with her that it
might have been her cousin. She was quite emphatic that the person she
had seen was not her cousin and that she was being truthful. It was my
feeling that she was.
(Scheff depo at 44). Detective
Amabile also testified that Edwin McGriff was the only member of the
victim's family who was investigated as a suspect (R. 946). However, in
contrast to Detective Scheff's deposition testimony regarding his
conversation with Ms. McGriff about Edwin McGriff, Dorothy McGriff
testified that she did not know that her cousin Edwin McGriff was a
suspect (R. 658).
Detective Scheff said nothing
about Eddie Lee Mosley, another cousin of the victim's mother, being a
suspect. He said nothing about checking Mosley's criminal history for
similar crimes. He said nothing about eliminating Mosley through a
comparison of his modus operandi and that of this crime. Detective
Scheff said nothing about showing the three witnesses a line-up
including a photo of Eddie Lee Mosley.
At trial, Detective Scheff also
testified regarding a statement that Frank Lee Smith had supposedly
made. Scheff testified that he and Detective Amabile interviewed Mr.
Smith shortly after his arrest. Initially, Mr. Smith identified himself
as Frank L. Israel, but then he signed a waiver form as Frank L. Smith
(R. 978). Mr. Smith did not have on glasses at the time of the interview
(Id). After telling Mr. Smith that Lowe, Davis, and Mrs. McGriff were
eyewitnesses and receiving no response (R. 982), Detective Scheff lied
to Mr. Smith, telling him that the victim's brother, who was asleep at
the time of the offense, had seen the suspect (R. 983). According to
Detective Scheff, Mr. Smith became upset and spontaneously said there
was no way the boy could have seen him because it was too dark (R. 984).
Detective Scheff's testimony
about this statement was inconsistent with a police report written by a
Sergeant Carry. According to this report Detectives Scheff and Amabile
were in fact the first officers to interview Mr. Smith after his arrest.
This interview lasted approximately two and a half hours. Sgt. Carry's
report indicates that Detectives Scheff and Amabile were unable to
establish any rapport with Mr. Smith or to obtain any statements, so
they requested that Sgt. Carry and another officer interview Mr. Smith,
which they did at about 6:35 p.m. According to Sgt. Carry's report, it
was during his interview with Mr. Smith that Mr. Smith purportedly made
the statement. Clearly, this information contradicted Detective Scheff's
testimony, casting doubt on whether the statement was made at all and
certainly impeaching Detective Scheff's credibility. Trial counsel had
this information, but failed to use it.
B. The 1989 death warrant.
The Governor of Florida signed a
death warrant against Frank Lee Smith on October 18, 1989, scheduling
the execution for January 16, 1990. Under Florida law prior to signing
of the death warrant, Mr. Smith had until March 21, 1990, to file post-conviction
relief. However, because of the Governor's death warrant, Florida law
required that Mr. Smith's post-conviction motion be filed by November
17, 1989. Accordingly on that date, Mr. Smith filed a motion for a new
trial in the circuit court.
On December 13, 1989, after a
brief oral argument, Judge Robert Tyson summarily denied all relief
without conducting an evidentiary hearing (PC-R. 326, 327). Mr. Smith
had presented a Brady claim which was summarily denied. This claim was
premised in part upon the fact that in 1987, two years after Mr. Smith's
conviction, the state attorney was still investigating the case:
On Tuesday, February 24, 1987,
this writer, as requested by A.S.A. William Dimitrouleas, compared the
fingerprint standards of George Gregory Reddick to latent lifts
reference B.S.O. Case #85-4-5789.
All workable latents were
previously identified by this writer; however, this writer compared
the remaining latents of no value to Reddick's fingerprint standards,
and found negative results.
(Broward County Sheriff's
Department report)(PC-R. 353). Nothing could be much more exculpatory
and material -- and therefore disclosable -- than the prosecutor's own
doubts regarding a defendant's guilt.
Mr. Smith also alleged a Brady
violation because of the failure to disclose that the State had not, as
law enforcement officers testified, eliminated the other suspects in the
case but had simply abandoned the investigation of those suspects. There
were numerous serious suspects, including Eddie Lee Mosley, who the
police simply said "were eliminated as suspects" without providing any
reasons for their elimination. Eddie Mosley, was, in fact, linked to
over 30 sex crimes involving females from the ages of 7-70. The police
eventually "narrowed" down the list of Mosley's victims to ten, but
never revealed this information to the defense. The most striking thing
to note in all of this is the amazing likeness of Mosley to the
composite photo developed by the State. Frank Lee Smith had never been
involved in any sex crimes and maintained his innocence of this charge.
Eddie Mosley fit the description given far better than Frank Lee Smith.
The State never disclosed how they eliminated Mr. Mosley as a suspect.
On December 15, 1989, Mr. Smith
timely filed a motion for rehearing (PC-R. 331-33), and on December 18,
1989, a supplement to the motion for rehearing (PC-R. 334-53), which
were denied on December 20, 1989 (PC-R. 354-55).
On the night of December 20,
1989, Jeff Walsh, the investigator for Mr. Smith, was finally able to
locate Chiquita Lowe. Mr. Walsh showed her a picture of Eddie Lee Mosley,
and she immediately identified him as the person who had run up to her
car on the night of April 14, 1985. The next morning Chiquita Lowe
provided the following affidavit:
1. My name is Chiquita Lowe
and I live in Ft. Lauderdale, Florida. I am presently twenty-four
2. In 1985, I testified during
a murder trial. A little girl was raped and killed near my
grandmother's house. I saw the man in the street right before the
3. In 1985, I told the police
detectives and the state attorney about how the man asked me for money.
I told them that I only saw the man for an instant and that the only
things I remembered were the droopy eye, scraggly hair, pot marks on
his face, and the ring on his finger.
4. The police detectives and
the attorney told me the man had a scar under his eye. I never saw a
scar and they knew that. The state attorney told me that the man on
trial had committed several crimes just like the one that happened
near my grandmother's house. The state attorney also told me that the
man on trial was dangerous, guilty of the crime, and needed to be
taken off the streets.
5. While I was in the
courtroom telling about what I saw, I knew that the man on trial was
too thin to be the same man I saw on the street. The police detectives
and the state attorney put so much pressure on me to testify against
the man on trial.
6. The state attorney told me
not to worry about my testimony because the man would be locked up and
electrocuted the following May. He also pointed out the man's entire
family to me. I was just feeling so pressured.
7. I have not forgotten about
the trial and every few months I picture the man's face in my mind. I
also remember how sorry I felt for the little girl.
8. On December 20, 1989, I was
shown a photo and asked if this was the man who approached me and
asked for fifty cents back in 1985. When I looked at the picture
everything came back to me. The photo is attached to this affidavit.
The man in the photo is without a doubt the man I saw. I know that he
is not the same man who was on trial for the little girl's murder. I
am so sorry that the wrong man is in prison and sentenced to death. I
had doubts in the courtroom but I was under so much pressure. Also,
the state attorney told me about how dangerous the man was and how he
needed to be locked up forever.
9. I feel so bad that I did
not tell the state attorney about my doubts. I did not know what to
do. I felt a lot of pressure to say that the man on trial was the man
I saw, even though I had doubts, and the man's hair did look the same.
10. I swear on my mother's
grave that the man in the photo is the man I saw on the street the
night when the little girl was raped and killed. I identified the
wrong man in the courtroom.
(Amendment to PC-R. 4-7).
On December 22, 1989, Mr. Smith
filed a motion for reconsideration of rehearing based on Chiquita Lowe’s
affidavit. After it was denied, Mr. Smith appealed to the Florida
Supreme Court on December 26, 1989 (PC-R. 356-57). After hearing oral
argument on January 9, 1989, the Florida Supreme Court stayed the
execution and subsequently issued an opinion ordering an evidentiary
hearing on the Chiquita Lowe affidavit only. Relief was denied on all
C. The 1991 Evidentiary
On March 7, 1991, Judge Tyson
held an evidentiary hearing as ordered by the Florida Supreme Court.
Judge Tyson only permitted Mr. Smith to present Ms. Lowe's testimony.
Except for a proffer, the circuit court would not allow Mr. Smith to put
in any corroborative evidence that Eddie Lee Mosley, the man Ms. Lowe's
affidavit says she saw the night of the offense, was the man who
committed this crime, and that Mr. Smith was not that man (P.C.-R.
27-47, 106-07). The proffered evidence included: a list of suspected
Mosley victims, newspaper articles regarding Mosley, Dr. Frumkin's
psychological evaluation of Mosley, Dr. Cohen's psychological evaluation
of Mosley, Leslie Alker's HRS report on Mosley, Dr. Eichert's
psychological report on Mosley, Dr. Koprowski's psychological report on
Mosley, Cynthia Maxwell's deposition testimony regarding Mosley's sexual
assault of her, Lisa Weisman's affidavit testimony regarding Mosley's
sexual assault of her, an involuntary hospitalization order regarding
Mosley, a motion appointing a mental health expert for Mosley, a Broward
Sheriff's Office (B.S.O.) booking sheet regarding Mosley dated 5/19/87,
a B.S.O. booking sheet regarding Mosley dated 5/17/84, a B.S.O. booking
sheet regarding Mosley dated 4/30/82, a B.S.O. booking sheet regarding
Mosley dated 4/12/80, a Ft. Lauderdale police report regarding Mosley
dated 12/25/83, and Dr. Hathaway's testimony regarding Mr. Smith's
Ms. Lowe's testified at the
evidentiary hearing. Ms. Lowe unhesitantly testified that she still
recalled very well the moment the man flagged her down on April 14, 1985
(PC-R. 50). Ms. Lowe became "convinced" that Mr. Smith was not the
individual she saw on the night of the murder long before she gave her
affidavit in 1989. Prior to trial, Ms. Lowe had never seen Mr. Smith in
person. She had only seen a photograph of Mr. Smith in a photo lineup.
When she saw Mr. Smith in the courtroom, she became "convinced" that Mr.
Smith was the wrong man. At the evidentiary hearing, she testified:
Only thing I remember is when
I walked into the courtroom . . . I seen Mr. Frank [Smith] standing up
there. I had my -- they kept saying is that the man, but I had my
doubts that was the man because the man I seen that night he was
muscular, big and Mr. Frank [Smith] was not."
(PC-R. 65). Ms. Lowe testified
that despite her doubts she identified Mr. Smith at trial as the man she
saw (PC-R. 79). When asked why she didn't tell the court and jury that
she made a mistake, she testified:
A. No, I couldn't feel like
that. Because -- I couldn't. I was confused.
Q. Were you worried while you
were testifying about whether or not Mr. Smith was the right person?
A. I was confused.
THE COURT: I didn't hear the
THE WITNESS: Confused.
BY MR. MCCLAIN:
Q. Can you tell me as best you
can what you are thinking? What was it that you were confused about?
A. That they saying they got
the man. The man needs to be off the street. He's dangerous and they
kept saying "this is the man," you just have to say "this is the man
because he need to be off the street." And I was thinking about the
little girl's mama, that she's going through this, that had happened
with her daughter and everything. I was just confused.
Q. Did you feel a lot of weight
on your shoulders?
Q. When you were in the
courtroom and you looked at Frank Lee Smith, did you have nagging doubts
in the back of your head?
* * *
BY MR. MCCLAIN:
Q. When you looked at Mr. Smith
in the courtroom, what were you thinking?
A. What they told me, "the man
was dangerous and he needs to be off the street."
Q. What were you thinking about
his fitting the description?
A. He didn't fit that
description that I sketched out.
Q. When you got off the witness
stand, what did you think?
(PC-R. 79-80). Ms. Lowe's doubt
about her identification of Mr. Smith was present long before 1989. At
trial, she knew that Mr. Smith was not the man she saw -- that he didn't
fit the description she sketched out. (Id).
She testified that when Mr.
Walsh, an investigator with undersigned counsel's office, approached her
on December 20, 1989 and showed her a photograph of Mr. Mosley she knew
This is the one that flagged
me down in the car... [I]t brought moments back of the incident when
it happened. ... A warm feeling came over me.
(PC-R. 52). When asked if she
was certain Mr. Mosley was the man she saw, Ms. Lowe testified that she
was "very, very, very, certain" (PC-R. 52; see also PC-R. 74-75 and 84).
Ms. Lowe testified that once the
police arrested Mr. Smith, she was under "a lot of pressure" to identify
him as the man she saw that night (PC-R. 63-64, 71). When questioned
about her identification of Mr. Smith from the photo lineup, she
They asked me is one of these
the guy. I said no, but I said that his hair was like the guy I seen
(PC-R. 71). Ms. Lowe admitted
picking out Mr. Smith from the photo lineup but was emphatic that she
told the detectives "that the hair was like the guy that [she] saw"
Ms. Lowe explained that
Detectives Scheff and Amabile pressured her to make an identification of
Mr. Smith at the photo lineup (PC-R. 63). She testified that she was
"A lot of pressure ... from the
police officer that came out there telling me that the man is dangerous
and if he stays out there, he's going to do it to someone else. So I was
up on a lot of pressure."
She explained further:
I only told them that the hair
look like the man that did it. And when I say the hair that looks like
the man that did it, they kept pushing me "Is this the man, Is this the
man, Is this the man." ... They kept saying that.
Ms. Lowe also testified that she
felt pressured by the prosecutor (PC-R. 63). She specifically recalled
being pressured to say that the man she saw that night had a scar under
his eye (PC-R. 53). Of course, Mr. Smith has a significant noticeable
scar under his right eye (R. 706). Ms. Lowe said she was pressured to
testify at trial about the scar but refused to do so (PC-R. 53). In fact,
the circuit court judge at the evidentiary hearing, noticing the scar
under Mr. Smith's eye, asked Ms. Lowe about this:
The Court: Ma'am, did you say
the person that you saw did or did not have a scar?
The Witness: The man that
learned in my car? No scar.
The Court: Did not have a scar?
The Witness: No scar.
Ms. Lowe testified that she felt
pressure from not only the state but also from her neighborhood, people
she knew, and friends (PC-R. 78). Moreover, Ms. Lowe was constantly
thinking about the victim:
I know that little girl got
killed. I know she had got killed and that's all that was going through
my mind, the little girl got killed.
(PC-R. 86). As a result of all
this pressure, Ms. Lowe was, in her words, "confused" when she finally
saw Mr. Smith in person and realized he was not the man she saw that
night (PC-R. 79). At the time of Mr. Smith's trial, Ms. Lowe was only
19-20 years old (PC-R. 77).
Ms. Lowe's hearing testimony
left no doubt that at Mr. Smith's trial she realized that Mr. Smith was
the wrong man. On December 20, 1989, this was only confirmed when she
saw Mr. Mosley's photo and became convinced that Mosley was the
individual she had seen at her home near the time of the homicide. The
State questioned her about having been convicted of a theft charge
subsequent to Mr. Smith's trial. Ms. Lowe openly admitted that she had
been convicted of a theft charge (PC-R. 73).
In light of Ms. Lowe's
recantation, the State attempted to establish that Ms. Lowe was merely
confused and that she had, at the time of the pretrial investigation,
been shown a photo lineup containing Mr. Mosley's photo which she failed
to recognize. When asked if she had been shown a photograph of Mr.
Mosley pre-trial she emphatically stated she would recognize Mosley if
she saw him (R. 69), that "they didn't show me no picture of him,"
(PC-R. 70) and that "the only thing that was close to the guy that I
seen that night" was the composite sketch they drew (PC-R. 70). Moreover,
Ms. Lowe's testimony at the evidentiary hearing was consistent with her
trial testimony that she had only been shown two photo lineups -- the
one containing Mr. Smith's photograph and another containing a
photograph of a previous suspect, a Mr. Freeman. When questioned about
being shown photographs other than the photo lineup containing Mr.
Smith's photograph, Ms. Lowe testified:
I do know that they did show
me some more photographs because it was a guy in the photographs they
kept questioning me about. I don't know him personally, but I knew him.
(PC-R. 69). Ms. Lowe testified
at trial about this same photo lineup containing a photograph of Mr.
Freeman, a man from the neighborhood that she recognized (R. 684).
Although she recognized Mr. Freeman, she said that he was not the man
she saw on the night in question (R. 684). At trial, as at the
evidentiary hearing, Ms. Lowe testified about only those two photo
lineups -- there was no third photo lineup.
In an attempt to establish that
there was a third photo lineup containing Mr. Mosley's photograph, the
State called the victim's mother, Mrs. McGriff. Mrs. McGriff's testimony
concerning this "mysterious" photo lineup was confusing at best:
Q. At anytime did the police
come to you in those days after your daughter was killed and show you
Q. Do you remember how many
times or how many photographs they may have showed you?
A. Oh, about two or three.
Q. Did they show you a large
group of photographs or was it one at a time?
A. Yes, they showed me one at
a time and then they showed me large size.
Q. Okay. And on any of those
occasions, did the police officers show you a picture of Eddy Lee
Q. Was it in a group or single
photo, do you remember?
A. It was in a group.
(PC-R. 113). On cross-examination,
counsel attempted to clarify Mrs. McGriff's answer:
Q. Now, you indicated that
they showed you two or three photos, or was that two or three they
A. They showed me about two or
three photo -- Well, they asked me to look through the pictures.
Q. They gave you a couple of
photos, gave them to you and asked you to look through them?
Q. And that was all the photos
that the police ever showed you or did they show you more later, or do
A. No, I don't remember.
Q. Okay. Did they also show
you -- I mean, if you don't remember just say you don't remember. I'm
just trying to be sure. I understand what you're saying.
Do you remember, did they
actually show you a line up at one point in time with about six
pictures in it?
A. No, there wasn't no six
pictures. It was like a photo book, do you know how you get a photo
A. I looked through the photo
book and skimmed through to look in the photo book.
Q. So they showed you a photo
Q. And it was a photo book with
more than six pictures in it?
Q. And when did they show you
the photo book?
A. Oh, gee. I just don't
remember, but I think right after - right after my baby's death, I think,
I'm not for sure, right after. I'm not sure.
Q. You mean like the next day?
Q. And did they show you photo
of Frank Lee Smith that day?
A. Did they show me?
A. No, I picked him out myself.
Q. In that book?
Q. And that was the next day
after your daughter's death?
Q. Was Eddy Lee Mosley in that
Q. Did the police specifically
say "how about this guy?"
Q. But you saw his photo in
Q. Did you tell the police that
that was not the person?
Q. You just -- Did you -- As you
went through the photo book, did you say "this isn't the person, this
isn't the person?"
Q. And then when you got to
Frank Lee Smith you said "this is the person?"
(PC-R. 118-121). Prior to the
evidentiary hearing, neither she nor Detectives Scheff or Amabile ever
mentioned Mrs. McGriff viewing photographs out of a photo book.
Moreover, their testimony has
always been that Mrs. McGriff identified Mr. Smith from a photo lineup
and not while perusing a photo book (R. 642, McGriff; R. 985, Scheff; R.
908 Amabile). At the evidentiary hearing, both Detectives Scheff and
Amabile stated that Mrs. McGriff was shown a photograph of Mr. Mosley in
a photo lineup and not a photo book (PC-R. 148, Scheff and 185-6,
Amabile). Detective Amabile who sat through Mrs. McGriff's testimony at
the evidentiary hearing admitted that her memory as to what transpired
and when it transpired was different from his memory (PC-R. 198).
Although Mrs. McGriff, Detective
Scheff, and Detective Amabile have different stories concerning how and
when Mr. Mosley's photograph was shown to Mrs. McGriff, they all
testified that she identified his photograph as Mr. Mosley and stated he
was her cousin and not the man she saw that night. In fact, Detective
Amabile testified that he remembered this specific photo lineup because
Mrs. McGriff had stated that Mr. Mosley was her cousin. The problem with
this testimony is that as with the testimony about the existence of a
third photo lineup containing Mr. Mosley's photograph, their prior sworn
testimony is in direct contradiction. At no time pre-trial or at trial
did anyone identify Mr. Mosley as a relative of Mrs. McGriff -- and they
were all asked whether any of her relatives were suspected of the murder.
In answer to the direct question, the only relative the detectives ever
identified pre-trial or at trial was Edwin McGriff, another cousin of
Detective Scheff, the lead
investigator in this case, gave a very lengthy and detailed deposition
covering in chronological order everything he did in this case. He never
mentioned that Mr. Mosley was a serious suspect that they actively
investigated. He did not mention that there was a third photo lineup
containing Mr. Mosley's photograph. He specifically did not identify Mr.
Mosley as a relative of Mrs. McGriff. After explaining that Mr. Freeman
was eliminated as a suspect by Ms. Lowe, Mr. Davis, and Mrs. McGriff,
the following colloquy occurred:
Q. Did you have, at this point
in time, anybody in mind?
A. You mean, as a suspect?
A. Oh, no.
Q. How about any relative of
the deceased, uncles, cousins?
A. We had booked an individual
by the name of Edwin McGriff, who is a cousin to Dorothy. As I had
indicated earlier, we checked with - on the first night, for similar
crimes. And, at that point in time, we discovered that Edwin McGriff
had been accused, I think, in 1982, of a sexual battery of a minor
black female chid, and subsequently, we sat Dorothy McGriff down and
explored the possibility with her that it might have been her cousin.
She was quite emphatic that the person that she had seen was not her
cousin and that she was being truthful. It was my feeling that she was.
(Scheff deposition p. 44). Again
at Mr. Smith's trial, Detective Scheff was asked about relatives and
again he indicated that a cousin, Edwin McGriff, was the only family
member who was a suspect (R. 1022-23). Detective Scheff testified that
this cousin, Edwin McGriff, was never displayed in a photo lineup (R.
1024). Detective Scheff did admit at trial that Mr. Mosley was a suspect,
but never said he was eliminated by all three witnesses through a photo
lineup or that he was a cousin of Mrs. McGriff. In fact, Detective
Scheff testified that he did not show a photo lineup containing Mr.
Mosley's picture to any of the witnesses:
Q Was Eddie Lee Mosley ever a
suspect in this case?
A Eddie Lee Mosley was a
suspect in this case along with Edwin McGriff. Initially when we first
began investigating the case, really had no specific direction to go
Q How about Jessie Smith?
A Jessie Smith is Eddie Lee
Mosley under an alias name.
Q Lee Greely, G-r-e-e-l-y
A I don't know.
Q That's all I have.
A Spell it again?
Q G-r-e-e-l-y. Doesn't ring a
Q The man called Gator Mouth
ever a suspect in this case?
Q The man that went by the name
of Gator Mouth?
Q Was a guy by the name of Big
John ever a suspect in this case?
A Yes. I wouldn't say they were
suspects in the case. I would say they were people who were brought to
our attention for one reason or another.
Q How about Edward Simmons, did
you ever check with John Boucada of your department? He supposedly looks
like Mr. Smith.
MR. DIMITROULEAS: I will object
to counsel testifying and I'm objecting to the form of the question.
THE COURT: Objection sustained,
may be rephrased.
Q (By Mr. Washor) Did you ever
investigate Edward Smith?
A Edward Simmons?
A No, sir.
Q Never had any contact with
Detective Boucada regarding him?
A No, sir.
Q Were any of these people
ever shown to any of the witnesses in either a photo or live lineup,
people whose names I just read off other than Freeman?
A Other than Freeman, no.
(R. 1024 - 1026).
At his pre-trial deposition,
defense counsel specifically asked Detective Amabile if any of Mrs.
McGriff's cousins were ever suspected of the murder. Detective Amabile
responded that Edwin McGriff was the only cousin ever considered a
suspect (Amabile Deposition at p. 44). Detective Amabile was asked this
again at Mr. Smith's trial and again responded that no family members,
other than Edwin McGriff, were suspects (R. 946). The same Detective
Amabile testified in 1991 that he didn't remember much about the photo
lineups except for the instance when Mrs. McGriff identified Mr. Mosley
as her cousin:
Q. Do you recall what photo
lineups were shown the witnesses? And let me clarify when I use the word
"witnesses," I am referring to Dorothy McGriff, Chiquita Lowe and Gerald
A. Unfortunately I would have to
answer yes because of hearing the prior [evidentiary hearing] testimony
[of Mr. McGriff and Detective Scheff]. What I recall, I recalled it more
than one photo lineup being shown. I know from testimony today it was
also mostly the reason I stated to Mr. Zacks, that I recall Eddy Lee
Mosley is - that's how I found out that he was related to Dorothy
(PC-R. 185-86). Of course, this
testimony is in direct contradiction with his pre-trial and trial
testimony that the only relative of Mrs. McGriff who was a suspect in
the case was Edwin McGriff, a cousin. Moreover, Detective Amabile, like
Detective Scheff, testified at trial that none of the suspects, with the
exception of Freeman, were displayed in a photo lineup:
Q There were a slew of other
suspects in this case, weren't there, besides Mr. Freeman?
A A slew or --
Q More than one?
Q Was there a Carspelia (phonetic)
Williams who was a suspect?
A His name was given to us.
Q Eddie Lee Mosley?
Q Jessie Smith?
A I don't recall that name.
Q Greeley (phonetic) Smith?
A Again, I don't recall that
Q Edward Calvin McGriff?
Q Was he related to the family
A I believe so, yes.
Q A person by the name of Gator
Q A person by the name of Big
John who Detective Frost said in his report somebody identified a
Q Were any of these leads
followed up on?
Q Were they all followed up on?
A Yes, to the best of my
knowledge with the exception of the two names I don't recall hearing.
Q What became of Big John?
A That I believe Detective
Scheff and myself checked out and he did not fit the physical
description at all.
Q Is that reflected in anywhere
in your notes or reports or anything of that nature?
A No, that would be Detective
Q He should have it somewhere?
A He should.
Q Were any of these other
people other than Mr. Freeman in the photographic display or in the live
lineup shown to any other witnesses?
Q Did you investigate any of
the family members backgrounds to see whether they were ever involved in
this kind of thing before?
A I believe Edward McGriff.
Q Anybody else?
In 1991 when Detective Scheff
was asked if he had any written documentation in the homicide file
reflecting the Mosley lineup he testified:
A. I don't think so. I might. I
would have to look through the file.
Q. With the file that you
brought, is there any indication in there of showing a photo of Eddy Lee
Mosley to any of the witnesses?
A. The file is -- I just brought
this so I could have some hope of remembering this stuff.
Q. In what you brought that you
thought would help you, and with your memory, is there anything to
indicate you showed a photo lineup containing Eddy Mosley?
THE COURT: Showed who?
THE WITNESS: Eddy Lee Mosley.
MR. MCCLAIN: A photo lineup
containing Eddy Lee Mosley.
THE COURT: To whom?
BY MR. MCCLAIN:
Q. To --
Q. Anybody. To these
three witnesses that we've been talking about?
(PC-R. 159-60)(emphasis added).
Moreover, Detective Scheff had no explanation for this glaring
contradiction between his pre-trial and trial testimony and his
testimony at the evidentiary hearing:
Q. I'm going to hand you pages
from your trial testimony. I have three pages to show you and starting
with was Eddy Lee Mosely (sic) a suspect. If you can just read from
there on until the middle of the third page [R. 1024-26].
A. I am sorry read to where?
Q. Let me show you.
A. Wait a minute, which is the
Q. Eddy Mosely's on the first
A. Was Eddy Lee Mosely ever a
suspect - Do you want me to read it out loud?
Q. You can read it to yourself.
Q. In those three pages, does
that help refresh your recollection as to your trial testimony?
Q. You were asked out a series
of suspects by the prosecutor --
Q. -- if Eddy Lee Mosely was one
of those suspects?
Q. In fact, he read you a list
of names and asked you for a response?
A. That's correct.
Q. At the end he asked you were
any of those names he read to you were shown to the witnesses?
Q. And you said other than
A. Yes, I'm assuming that's
accurate. I have no reason to not doubt it's accurate.
Q. Is that consistent with your
testimony here today?
A. No it's not.
MR. MCCLAIN: I have nothing
further, Your Honor.
THE COURT: Re-direct? Could you
repeat that question and answer again that you just asked?
MR. MCCLAIN: Was that consistent
with your testimony here today?
THE COURT: No, the last question?
MR. MCCLAIN: The question was,
were any of these people ever shown to any of the witnesses in either a
photo or live line-up (sic), people whose names I just read off other
than Freeman. Answer, other than Freeman, no.
THE COURT: Go ahead.
MR. ZACKS: Nothing further,
At the conclusion of the hearing,
it was decided that the State and Mr. Smith would simultaneously do
post-hearing memoranda (PC-R. 205). Post-hearing memoranda were done
On April 29, 1991, Assistant
State Attorney, Paul Zacks, left a message for Mr. McClain, Mr. Smith's
counsel to call Mr. Zacks. Subsequently, Mr. McClain returned the call.
At that time, Mr. Zacks said that Judge Tyson had telephoned Mr. Zacks
and discussed Mr. Smith's case. As a result of that discussion, Mr.
Zacks was assigned to draft an order denying Mr. Smith relief. Shortly
thereafter, Mr. Smith's counsel received via facsimile a draft order and
an accompanying cover letter detailing the timetable Judge Tyson and Mr.
Zacks had worked out.
After learning of the ex parte
communication between Judge Tyson and the State, counsel for Mr. Smith
filed a Motion to Disqualify Judge, requesting that Judge Tyson recuse
himself from Mr. Smith's case because of the ex parte communication
(PC-R. 265-66). Counsel for Mr. Smith also filed Objections to Draft
On May 7, 1991, defense
counsel received the State's draft of a proposed order denying 3.850
relief in the above entitled matter. The proposed order and its cover
letter accompany this pleading. Defense counsel's understanding is
that the Order was drafted by the State after Judge Tyson called
Assistant State Attorney Paul Zacks and discussed the matter. Neither
Mr. Smith nor undersigned counsel were privy to that discussion.
Undersigned counsel had requested that any post-hearing discussions
about the case not be ex parte and that such discussions be conducted
with all parties present. Counsel further suggested that the
discussions could be telephonic but that a court reporter should be on
the line in order to put the discussions on the record.
(PC-R. 279). Judge Tyson did not
rule on the Objections to Draft Order. On June 6, 1991, Judge Tyson
denied the Motion to Disqualify (PC-R. 283), and, the next day, June 7,
1991, signed verbatim the State's order (PC-R. 284-87). Mr. Smith
thereupon filed a notice of appeal.
On May 28, 1992, the Florida
Supreme Court issued its opinion in Rose v. State, 601 So.2d 1181 (Fla.
1992), wherein the court reversed an order denying post-conviction
relief because the Assistant State Attorney, Paul Zacks, had engaged in
ex parte contact with the presiding judge in preparing a draft order
denying all relief. When Mr. Smith filed his brief in the Florida
Supreme Court, he relied upon the opinion in Rose v. State. The State
refused to concede error, but instead filed a Motion to Get the Facts,
in which it asked for a remand so that evidence could be heard regarding
the ex parte contact. The Florida Supreme Court granted the motion and