IN THE CIRCUIT COURT OF THE FIFTEENTH JUDICIAL CIRCUIT 0 IN AND FOR PALM BEACH COUNTY, FLORIDA CRIMINAL DIVISION STATE OF FLORIDA, . ag? Plaintiff, vs. Case N0.: ERNEST BYRD, Defendant. MOTION TO INSPECT EVIDENCE PRESIDING: HONORABLE JOSEPH MARX APPEARANCES: 0 ON BEHALF OF THE STATE: MICHAEL F. MCAULIFFE, ESQUIRE . State Attorney 401 North Dixie Highway West Palm Beach, FL 33401 BY: LEIGH L. MILLER, ESQUIRE Assistant State Attorney CITY OF RIVIERA BEACH POLICE DEPARTMENT 600 West Blue Heron Boulevard Riviera Beach, FL 33404 BY: CHRISTY. GODDEAU, ESQUIRE ON BEHALF OF THE DEFENDANT: LAW OFFICE OF DAVID S. MOLANSKY 1200 Brickell Avenue Miami, FL 33131 BY: DAVID S. MOLANSKY, ESQUIRE Thursday, December 1, 2011 _Palm Beach County Courthouse {g rni;??m??1;3q West Palm Beach, FL 33401 HFA gg; hw From 8:55 a.m. -- 9:52 a.m. 1 BE IT REMEMBERED that the following 2- proceedings-were had in the above-entitled cause 3 before the HONORABLE JOSEPH MARX, one of the 4 judges of the aforesaid Court, at the Palm Beach 5 County Courthouse, located in the City of West 6 Palm Beach, State of FloridaDecember, 2011, beginning at 8:55 o'c1ock a.m. 8 with appearances as hereinbefore noted, to wit: 9 ?k 1- ?k 10 MS. MILLER: Good morning, Your ll Honor. 12 THE COURT: Hi, guys. 13 MS. MILLER: Leigh Miller for the 14 state. .We're here on Ernest Byrd. It's on 15 page two. . 16 MR. MOLANSKY: It's the defendant's 17 motion, Your Honor. I'd just like to - 18 explain some background on the case. I'm 19 David Molansky. I'm appearing on behalf of 20 the defendant. He's present over in the 21 jury box. 22 THE COURT: Good morning, sir. 23 THE DEFENDANT: Good morning. 24 MR. MOLANSKY: This is a motion for 25 DNA testing that we filed. My client was 2 1 convicted in 1989 of second--degree murder 2 and sentenced to life. It was a 3 circumstantial case. There were no - 4 eyewitnesses. It was based solely on the 5 testimony of circumstances of people 6 who some Williams Rule evidence and some . 7 other things. 8 About a year I'm sorry. Going back, this has been 10 pending about five years, rather. There 11 was a motion for DNA testing filed. 12 The state initially told us that the 13 evidence had been destroyed. We got a 14 letter from Judge Labarga not to destroy 15 any further evidence. 16 We went and searched the evidence 17 locker at the city of Riviera Beach. We 18 found the box of evidence. 19 Then what inventory done on that. When we took 21 the box apart of my client's case, there 22 was other evidence commingled with it. -23 We got an order from Judge Hoy, who 24 was a predecessor0 who was the judge after 25 that, to take depositions to find out where 3 1 the rest of my client's evidence was. 2 And what happened was, there were two 3 pieces of evidence that really needed to be 4 tested. One's a bloody bedsheet and one is 5 fingernail scrapings. 6 What we found in the bedsheet, what . 7 we were looking for is the fingernail 8 scrapings. That was missing out of the `9 box. But when we took my client's box of 10 evidence apart, there was other evidence 11 commingled in it from other cases. 12 So when we took the depositions, we 13 took the depositions of some of the people 14 that worked at the Riviera Beach police i 15 department at the time, the evidence 16 custodian, the assistant chief, some other 17 people. 18 We found out that the evidence was 19 stored in a place called, I think it's 20 Avenue down there. The building was 21 damaged during a storm and it was flooded. 22 A lot of the evidence that was in there was 23 damaged. 24 I've been now told by one of the 25 employees of the city of Riviera Beach, 4 1 there was approximately 100 boxes there. 2 Everything was repacked and was moved back 3 to Blue Heron Boulevard. That's when we 4. inspected it. 5 So what we are here for today is, we 6 would like a court order to inspect those 7 boxes that were down at the old Avenue 8 building, only those boxescould find this package of nail scrapings. 10 I believe the state is objecting to 11 this, and I am a little bit perplexed as to 12 why because it's somewhat labor intensive 13 for them to look through those boxes. 14 But, at any rate, my client is 15 sitting over there under a life sentence. 15 We need to test this. We're only looking 17 for those boxes that were down in Avenue J. 18 Now they're trying to tell me that 19 there were only homicide boxes that we can 20 look through. They have no idea who packed 21 what with what. They only know that 22 everything was repacked down there and it 23 was moved over to Blue Heron Boulevard. 24 So by asking us to just look at {uh 25 homicide boxes, it would basically bar us 5 1 from looking in the other boxes that could 2 have been commingled with ours. 3 And in addition to that, we don't- 4 know even whose evidence it was in our box. 5 There were several pieces of evidence that 6 were in there. 7 We don't know whether they were 8 homicide, whether they were burglary, 9 whether they were grand theft, whether they 10 were petit theft. We don't know what they 11 were, so we need to inspect those boxes 12 that were down in that warehouse so I can 13 prove my case. 14 I can't I am really at this point 15 barred from doing anything further on this 16 case unless I can look at those boxes. 17 And if my client's indigent, if I 18 have to get the money from the Justice 19 Administrative Commission, we'1l do that, 20 but we need to look through those things. 21 There's no other way we could go forward, '22 Your Honor. 23 THE COURT: Okay. This is similar to 24 another case I have. Isn't it the same 25 story? John Rivera is representing the 6 1 defendant. We were on the verge of having 2 a hearing. Evidence was brought over and I . 3 ordered everybody back to the state 4 -attorney's office to look through the box. - 5 Right? 6 MS. MILLER: Yes, Your Honor. 7 THE COURT: Similar facts - 8 MS. MILLER: A little bit, Your 9 Honor. 10 THE COURT: -- the storm on Avenue J, 11 that whole thing? 12 MS. MILLER: On these variable cases, 13 the protocols for keeping and maintaining 14 the evidence were different than they are 15 now, and so -- 16 THE COURT: What's the name of that 17 case; do you know? Because when I looked 18 at this, I thought it was that case and I 19 . thought you took over for Mr. Rivera; 20 that's how similar it is. 21 MR. MOLANSKY: No, this was a 22 different one. 23 THE COURT: Sure. 24 -MS. MILLER: You said that -- 25 THE COURT: You do know what I'm 7 1 talking about. 2 - MS. MILLER: Yes, I know exactly 3 which one. 4 THE COURT: You were here, right? 5 MS. MILLER: I was, yes. 6 THE COURT: Okay, so let me hear your 7 argument. 8 MS. MILLER: Your Honor, I will 9 respond briefly. Also though, for the 10 record, Miss Christy Goddeau is here. 11 She's counsel for the city of Riviera Beach 12 police department. 13 THE COURT: Good morning. 14 MS. GODDEAU: Good morning. 15 MS. MILLER: Assistant Chief Jones is 16 here from the police department. 17 THE COURT: How are you, sir? 18 MR. JONES: Good morning. 19 MS. MILLER: And Commander Madden is 20 also present, Judge. 21 THE COURT: All right. Good morning. 22 MS. MILLER: And they'd like to 23 speak. Hut as far as the state's position, 24 Your Honor, we have been working with the 25 defense over the past few years to try to. 8 1 find these fingernail scrapings. We've 2 gone down to the police department. We've 3 looked at the boxes with the guidance of 4 their evidence custodian, and 5 also would like to find the fingernail 6 scrapings. 7 However, the motion as it's granted 8 would grant the defense something that so 9 far has been unprecedented. It would allow 10 this defense counsel to go down and conduct 11 or lead up the search of the evidence 12 locker at the police department of cases 13 unrelated to this one. 14 They would be opening boxes. They 15 would be rifling through unrelated cases on 16 a fishing expedition to find evidence 17 THE COURT: Your objection to who's 18 doing it? 19 MS. MILLER: To the defense. 20 THE COURT: No. I asked, is it your 21 objection not to actually going through the 22 - process, but to having the defense doing it 23 themselves? 24 MS. MILLER: Well, that would be a 25 large part of my objection, yes. As far as . 9 1 the logistics of being -- whether it's 2 feasible to do that, I'll leave that up to 3 the [inaudible]. 4' THE COURT: How many boxes are we 5 talking about, 100, did I hear? 6 MS. GODDEAU: Your Honor, perhaps 7 Assistant Chief Jones can give you some 8 further information on exactly what 9 logistics would be involved if you were to 10 grant the motion as it is right now. 11 THE COURT: Okay. I'm just 12 concerned. This is a first--degree murder 13 case, right? 14 MS. GODDEAU: Yes. 15 THE COURT: He's got a life sentence. 16 I got three people that want to talk to me. 17 I got legal argument and it's really tough 18 for me to do this at 8:45. 19 MR. MOLANSKY: I was not told, Your 20 Honor, that they would bring witnesses in. 21 UI mean, if I had known, I would have 5- 22 THE COURT: I am not upset at all. 23 I'm just saying, I want to give you my full 24 attention, and it's so hard for me to 25 listen when I see all these eyes looking at 10 1 me behind you going, how long am I going to 2 stand in this line. 3 But now that I've got everybody here, 4 I hate to send everybody back. You're 5 coming up from Miami, I think .6 MR. MOLANSKY: Yes, Your Honor. 7 THE COURT: and I think you guys 8 - are coming up from [indiscernible]. 9 Can I impose upon you to take a 10 15-minute break, let me clear some of these 11 people out from behind you and then we'll 12 reconvene? 13 MR. MOLANSKY: Yes. Of course, Your 14 Honor. 15 THE COURT: Do you have another 16 hearing? 17 MR. MOLANSKY: I have nothing else up 18 here. I just came up especially for this. 19 THE COURT: Can you guys wait about 20 15 minutes? 21 MS. GODDEAU: Absolutely. 22 THE COURT: All right. 23 MR. MOLANSKY: Thank you, Your Honor. 24 THE COURT: So, lawyers, people, a 25 quick recess. Let's get you on your way 11 1 out. I hate to keep you. 2 [Thereupon, the case was passed and 3 other calendar matters were had, at which 4 time the case was recalled, and the 5 following proceedings were had:] 6 THE COURT: So we're going to go back 7 on Byrd? 8 MS. MILLER: Yes. 9 THE COURT: All right, and I think 10 you were about to call somebody up to 11 testify. 12 MS. MILLER: Yes, this will be Chief 13 Jones explaining the 14 MR. MOLANSKY: Judge, before if 15 this is going to be testimony from a 16 witness, I would like the Court to invoke 17 the rule of sequestration if we're going to 18 have an evidentiary hearing. 19 I don't know if the other witness is 20 in here. He is. He's sitting right there 21 so -- 22 THE COURT: It's no problem. We'll 23 just have you step out. We'll call you in _24 in a second. She's an attorney so she gets 25 to stay. 12 1 Do you swear to tell the truth, the 2 whole truth and nothing but the truth? 3 MR. JONES: I do. 4 THE COURT: All right. You may put 5 your hand down. State your full name for '6 the record. 7 MR. JONES: Manny Duane Jones. 8 THE COURT: All right. State, go 9 ahead. 10 DIRECT EXAMINATION 11 BY MS. MILLER: 12 Q. Please state your present employer. 13 A. Assistant chief of police for the city of 14 Riviera Beach police department. Currently I'm 15 assigned to the city manager's office as the 16 interim deputy city manager. 17 Q. And how long have you held that position? 18 A. As assistant chief, since 2003. 19 Q. And how long have you been employed with 20 the department? 21 A. Since 2003. 22 Q. Are you familiar with any searches for 23 evidence that could [inaudible] in the case of 24 Ernest Byrd? 25 A. Yes. - 13 1 Q. What do you know about what searches have 2 been done to date for this evidence? 3 A. To date, the 4 MR. MOLANSKY: Objection; hearsay. 5 THE COURT: Overruled. 6 THE WITNESS: As the supervisor for 7 administrative support and services, the 8 evidence function is under my purview, and 9 the supervisor of that section at that time 10 was Lieutenant Angela James. 11 She conducted a search of every 12 homicide box with her evidence technicians . 13 to look for that evidence. 14 THE COURTquestion. You heard Counsel bring up that 16 it was in this case they opened a box and 17 there was commingled evidence. 18 THE WITNESS: Yes, sir, I did hear 19 that. 20 THE COURT: Is there anybody who 21 could speak that that did happen in this . 22 case? 23 FEMALE VOICE: That did happen._ 24 THE COURT: Okayquestion. When the homicide boxes were 14 1 gone through, were there other cases where 2 they were commingled? - 3 Has there been any other . 4 evidence strike all of that. Has there 5 been any other evidence of commingling in 6 any other case? .7 THE WITNESS: Not to my knowledge, 8 sir. 9 THE COURT: Okay. Go ahead. 10 BY MS. MILLER: 11 Q. So if you would continue about the search 12 that was done for evidence. You said there was 13 [indiscernible] through all the homicide cases? 14- Is that what you said? 15 A. Looked through all the homicide cases, 16 approximately 100 boxes looking for the evidence 17 concerning the case. 18 Q. And specifically the fingernail scrapings? 19 A. Specifically the fingernail scrapings, yes. 20 Q. And the homicide boxes, were those from a 21 particular time period; do you know? 22 A. I think every homicide box was rifled 23 through or looked through, ma'am, searched. 24 Q. Do you know how many, just approximately 25 how many boxes of evidence your department 15 - 1 currently has in its present locker? 2 A. Thousands, I'd say. 3 THE COURT: How many came up from 4 Avenue J, is really the question? 5 THE WITNESS: Thousands. 6 THE COURT: Thousands came up from 7 THE WITNESS: Boxes of evidence, yes, 8 I would say. The entire area and section 9 was located on Avenue E, and that building 10 has since then been demolished. 11 All the evidence was relocated back 12 to the headquarters of the police 13 department, 600 Wes?t Blue Heron Boulevard. 14 BY MS. MILLER: 15 Q. Would it be feasible for there to be a 16 search conducted of all the boxes that came from 17 Avenue or [inaudible]? 18 A. No, ma'am. 19 Q. Why not? 20 A. Because of the number, the sheer number of 21 boxes that would have to be opened, and the 22 process in which we have to maintain the integrity 23 of the evidence, removing every box, putting it in 24 a secure area, making sure that area was 25 sanitized, changing gloves, putting evidence back, 16 1 sealing it back in every box, in every casethat, if the Court were to 3 order you to do that, can you give an estimate as 4 to how much time and manpower that would require 5 and cost? -6 A. These would be ballpark figures, but it 7 would be tens of thousands of dollars for man -- 8 hours to go through every box, maintaining the 9 integrity of the evidence, and to securely pack it 10 back in a secure fashion. And it would take 11 months to do. Even if we were to go through every 12 box, it would take months. 13 Q. Do you have any reason to believe that the 14 fingernail scrapings from this case are in another 15 unrelated box of evidence? 16 A. No, ma'am. 17 MS. MILLER: Your Honor, I don't know 18 if Counsel has questions she would like to 19 ask. 20 MS. GODDEAU: If I may, Your Honor. 21 THE COURT: Sure. 22 DIRECT EXAMINATION 23 BY MS. GODDEAU: 24 Q. Just for clarification, Assistant Chief, do 25 you know, when they did the search of the homicide -- 17 1 'boxes, how did they conduct the search of each 2 box? 3 A. The evidence team opened every box then 4 marked that box that had been searched and looked 5 for those particular, or that particular piece of 6 evidence. And afterwards they securely locked 7 that box back. 8 Q. So in doing that search, did they find 9 evidence that would be unrelated to that box, or 10 do you know if they found commingled evidence 11 A. I do not know if they found commingled 12 evidence. And that took place in the early part 0 13 of 2011. 14 Q. Okay. 15 MS. GODDEAU: That's all, Your Honor. 16 THE CQURT: Cross--examination. 17 CROSS--EXAMINATION 18 BY MR. MOLAN8KY: -19 Q. You were called here by these folks here, 20 right? 21 A. I was called by the city attorney and the 22 state attorney. Yes, sir. 23 Q. And you were just out front talking to them 24 before you were going to testify; am I right? 25 A. Yes. . 18 1 Q. And you were all together in a group 2 talking about the case? 3 A. Yes. 4 Q. And didn't you hear the city attorney say 5 there was about 100 boxes that were commingled 6 with it? Didn't you hear her say that? 7 A. No, sir. A hundred boxes commingled? 8 Q. A hundred boxes from Avenue that were 9 around. Didn't you hear her say that? 10 A. I think she was asking questions. I don't 11 think she made a statement. 12 Q. But you're here to help the state, are you 13 not, stop the defendant from finding his evidence? 14 A. No, sir. 15 Q. Oh, you're not. 16 A. No, sir. 17 Q. Okay. Let's go back to this search for the 18 evidence. Now, you stated that you went to 19 work there around 2000. Is that what you told us? 20 - A. 2003. 21 Q. So you were never down in this Avenue'J, 22 right? 23 A. Yes, I've been in that building. Yes, sir. 24 Q. But when this evidence was stored there, 25 you were never down there, right? 19 1 A. No, sir. If you're asking, yes, I was in 2 the building. I didn't work in the building every 3 day but I had been in the building, yes. 4 Q. Do you understand my question? 5 A. No, sir. 6 Q. Okay. Let me ask you the question again in 7 a way you would understand. 8 When this evidence was stored down there in .9 1988, '89, you weren't down there, right? 10 A. No, sir. 11 Q. So you answered my question. You 12 understood it. Now, when there was the flood down 13 there, you weren't there when that flood occurred; 14 am I correct? 15 A. What dates are we talking about, sir? 16 Q. The flood that damaged the evidence. 17 A. If you could give me a time frame, I'll be 18 able to answer, sir. 19 Q. Do you know what okay, let's go back. 20 Let's go back together. You know that the 21 evidence was damaged in a flood down there, right? 22 A. Which evidence? The evidence section 23 Q. Sir, do you want to answer my question? 24 MS. MILLER: [Inaudible], Your Honor. 25 THE COURT: Whoa, whoa, whoa. This 20 1 is a nonjury proceeding in front of the old 2 judge who's been doing this for a long 3 time. Let's be peaceful. '4 MR. MOLANSKY: I know. 5 THE COURT: I'm not -- I wasn't 6 really directing it at you. 7 MR. MOLANSKY: Okay. 8 THE COURT: Be cool. I know 9 sometimes you got to put it on the stand 10 for the jury, not for me. Let's just do . 11 it. 12 BY MR. MOLANSKY: 13 You know about the flood and all the damage I 14 in the evidence there? 15 A. There was hurricane damage in 2004, 2005. 16 There was no flood, per se. 17 Q. All right. Were you there when that 18 happened? 19 A. Yes, sir. 20 Q. Did you unpack and reload the evidence into 21 the boxes? 22 A. I did not, sir. 23 Q. Did you see the people doing it? 24 A. Yes, sir, I did make some random 25 inspections. 21 1 Q. Random inspections. So you didn't see the 2 case, did you, specifically? You didn't go 3 over and 4 A. No, I did not. 5 -- in that box. -I didn't think so. 6 Today you come forward with this 7 information about these hundreds of boxes that 8 were gone through to look for the evidence, 9 right? Yes? 10 A. I'm testifying that those homicide boxes 11 were reviewed. Yes, sir. 12 Q. Well, don't you know that Judge Hoy ordered 13 those boxes to be preserved? 14 A. Preserved how, sir? What do you mean? 15 Q. Did you know that Judge Hoy 16 MS. MILLER: Objection; his statement 17 of the facts, Your Honor. 18 MR. MOLANSKY: No, it's testing the 19 . witness's knowledge. 20 THE COURT: Overruled. 21 THE WITNESS: What was the question 22 again?' 23 BY MR. MOLANSKY: 24 Q. Don't you know that Judge Hoy ordered that . 25 that evidence be preserved, that there's an order 22 1 in effect? 2 The evidence, yes, sir. 3 Q. Oh, you do know that? 4 A. You said the evidence in the question 5 you I 6 Q. In the case. 7 A. The first question was, did you know about 8 the boxes. 9 Q.- No, it's not about the case. 10 MS. GODDEAU: Your Honor, since ll there's no jury, if I could bring up that 12 Judge Hoy entered no such order. 13 MR. MOLANSKY: I have the order, 14 Judge. 15 MS. GODDEAU: Was it Judge Labarga? 16 I've never seen the order. 17 MR. MOLANSKY: I think it was Judge 18 Labarga, but there was a court order in 19 effect. 20 MS. MILLER: Yes, it was [inaudible] 21 years ago. 22 BY MR. MOLANSKY: 23 Q. Don't you know that there was a court order 24 in effect not to destroy or move that evidence? 25 A. The court order was not to destroy the 23 1 evidence, to my knowledge, sir. -2 Q. But you went through those boxes anyway 3 looking for that? You said you did. 4 MS. GODDEAU: Your Honor, [inaudible] 5 the order he's talking about. He's 6 saying 7 MR. MOLANSKY: I'm asking 8 THE COURT: Overruled. 9 BY MR. MOLANSKY: io Q. I'm asking you, you went through those 11 boxes anyway. 12 A. You're asking me two different 13 Q. You went through the boxes looking for 14 the 15 A. You're asking me two different questions. 16 THE COURT: Pause for a second. 17 Here's the question: Did you go through 18 the boxes? 19 THE WITNESS: Yes. 20 THE COURT: Next question. 21 BY MR. MOLANSKY: 22 Q. And you didn't come forward till today to 23 the date of this motion to look through it and to 24 tell us that that evidence wasn't there. 25 You didn't come forward till today to do '24 1 nthat, until this motion was on calendar to say 2 that. This is the first time you came forward to 3 say that, right? 4 A. I'm not going to say Q- this is the first 5 time Manny D. Jones came forward, but I'm not 6 going to say the police department hasn't been in 7 communication with some person to acknowledge that 8 that search had been completed. 9 Q. Right. So you went all this time during 10 the depositions of Chief -- Assistant Chief 11 Harris, all the former employees of the evidence 12 locker, Miss Juanita Jones -- Miss Juanita Bell. 13 You went through all that. You never told 14 Assistant Chief Harris that another colleague of 15 yours, another police officer, that that evidence 16 was not there. 17 You never told you allowed him to come 18 here for his deposition and did that? Is that 19 what you're telling this court? 20 A. I don't know when those things took place, 21 but I do know Juanita Bell hadn't worked for the 22 police department in over eighteen months. So the 23 search that I'm talking about took place in 24 January or the early parts of 2011. 25 Q. Do you understand my question? 25 1 A. No, sir. 2 Q. Okay, then let me ask it again in a way 3 that you would understand it. 4 THE COURT: Stop that. 5 MR. MOLANSKY: Sorry. 6' THE COURT: Come on, guys. I've been 7 doing this 22 years and it's boring to me 8 to do this. If it's a jury, I'd say come 9 on. Come on. 10 BY MR. MOLANSKY: 11 Q. Let me ask you this: You 12 allowed -- Assistant Chief Harris came here to 13 testify about the evidence in this case. Juanita 14 Bell came here to testify. Deputy Loback came 15 here to testify where the evidence was, and you 16 didn't tell anybody that you had already looked 17 for the evidence and that it couldn't be found, 18 except for today you come here when our motion's 19 on calender. 20 Is that what you did? 21 A. I don't know when those depositions took 22 place. I don't know what he's talking about as it 23 relates to the depositions, but I have talked with 24 Assistant Chief Harris about the case before. 25 Q. You have? 26 1 A. Yes. 2 Q. And he never told you he came there and was 3 deposed regarding the evidence 4 A. We . 5 Q. within the last six months, sir? 6 -- A. No, I haven't talked to him in the last six 7 months about it. . 8 Q. You haven't talked to him in the last six 9 months. You just came forward today for this. 10 MR. MOLANSKY: I don't have any 11 further questions. 12 .THE COURT: Do you have any redirect?' 13 MS. MILLER: No, Your Honor, we I 14 don't. We do have some things we'd like to 15 talk about. 16 THE COURT: You may have a seat. Are 17 there any other witnesses you're going to . 18 call to testify? 19 MS. MILLER: No. . 20 THE COURT: Okay. 21 MR. MOLANSKY: I just have one legal 22 matter that I'd like to bring forward to 23 the Court and explain. 24 This motion today that's on calendar, 25 it doesn't ask to go through thousands of . 27 1 boxes. It just asks to go through the 2 boxes that were around that box at the time 3 when the flood happened. - 4 In addition to that, I'd like to 5 explain to the Court, the last time we went 6 through the evidence, a representative from 7 the defense and a representative from the 8 state was there and the city employees - 9 unpacked it for us. It probably took about 10 a half--hour or maybe 45 minutes, this one 11 box, the box. And they repackaged it 12 and packed it in. 13 We weren't going to unpack it. We 14 would never do even asked to handle it 15 or do something like that. I think the 16 state knows that. 17 But in the body of the motion, on the 18 final page, it says in there, we're just 19 asking the Court to inspect, inspect only 20 the evidence boxes that were stored with 21 defendant's evidence prior to and after the 22 storm damage that was stored with 23 defendant's box of evidence. And it only 24 requests the ones that have -- just what's 25 around that box. I'm not asking to go 28 1 through thousands of boxes. 2 THE COURT: Well, I appreciate the - 3 compromise there. Maybe we'll make some 4 progress, but do we have a question that 5 needs to be asked then? 6 Can we determine what boxes I 7 mean, if they have, you know, sophisticated 8 storage places, they can run a wand over, 9 you know, a scan over a bar graph and say, 10 that box is located on that shelf and these 11 four boxes are around it. 12 I don't know what their level of 13 sophistication is. It doesn-'t sound like 14 back then it was very high, considering 15 [inaudible] was flooded. 16 Are you able to tell us that? 17 MR. MOLANSKY: I was just informed. 18 I don't remember. I thought it was the 19 assistant city attorney that said to me 20 outside, and I was going to call her as a 21 witness, that it was about 100 boxes. 22 I don't know why I would have got the 23 grasp on that had someone not said that to 24 me. 25 THE COURT: But even 100 -- well, I'm 29 1 going to ask her in a second. Even 100 is 2 a lot. You say the boxes around it could 3 be eight boxes. 4 MR. MOLANSKY: I don't know. 5 THE COURT: Do you know what I'm 6 saying? If we could reach some compromise 7 as to if there's an ability to do that. 8 Now when we start to talk about 100 boxes, n- 9 we're talking about, you know, that's a lot 10 of man hours and a lot of effort. 11 And I respect the first-degree murder 12 case and I respect that the person's got a 13 life sentence, so I'm pausing. I'm hearing 14 you. I'm concerned about what's going on, 15 and it is the second case that I have that 16 this issue's come upquestion just out of 18 curiosity because this is the first time 19 I've touched this. I don't know anything 20 about the facts of this case. 21 What happened to the bloody bedsheet? 22 MR. MOLANSKY: Found it. That was in 23 the box. 24 THE COURT: Next question, what . 25 happened to it then? 30 1 MR. MOLANSKY: It's there. It's been 2 repacked. 3 THE COURT: Has it been tested? 4 MR. MOLANSKY: It hasn't been tested. 5 It's been repacked in the box. We need the 6 nail scrapings, really. 7 THE COURT: Wellquestion: The blood sheet comes back with 9 his DNA on it, the bloody bedsheet, it 10 changes my analysis a little bit, doesn't 11 it? . 12 MR. MOLANSKY: It does. 13 THE COURT: If the bloody bedsheet 14 comes back and doesn't have anything 15 belonging to him, then we might go to the 16 `next step. 17 Does that make any sense to you? 18 MS. MILLER: For the record, it's the 19 state's position that the blood sheet would 20 not, testing of the blood sheet, whatever 21 the results, would not exculpate this 22 defendant, that it's that it doesn't . 23 meet the criteria. 24 I would have to look at Judge - 25 Labarga's order. I don't specifically 31 1 remember if he ruled on that issue or not. 2 It's been so long, I don't remember. 3 But it is our position that whether 4 his DNA is on the blood sheet or not, it 5 doesn't make any difference to his guilt or 6 innocence.` The fingernail scrapings are 7 far more pertinent.- - 8 THE COURT: Is there a struggle 9 MS. MILLER: Well -- 10 THE COURT: Like I said, I don't know 11 the facts of the case. 12 MS. MILLER: The defendant had 13 fingernail scratch marks on him at the time 14 of his arrest and so, in any event, I'm not 15 . arguing against your suggestion. I'm just 16 putting on the record that I'm not sure 17 that testing of the bedsheet [inaudible] or 18 even exculpate him if it were done. 19 THE COURT: All right. Fair enough. 20 - MR. MOLANSKY: I would like to add to 21 that. 22 THE COURT: Absolutely. 23 MR. MOLANSKY: I think that the state 24 is wrong, and I'll explain why. The victim 25 was found wrapped in that bloody bedsheet 32 1 in a closet, and whoever there's three . 2 ways that that could go. 3 It could be the victim's blood on - 4 - there, which we don't think it is, and I'll 5 explain why it was death by affixation. It 6 could be the defendant's blood, which we 7 are not thinking that it is. Or it could 8 be a third person's blood. The front door 9 of the house was left open. 10 So if it's a third person's blood on 11 there from a struggle with the victim, that 12 had to be the last person that saw the . 13 victim and wrapped the victim in the 14 bedsheet before the victim was left there, 15 after the victim was killed. That could 16 definitely make a difference in our view. 17 Although, there was testimony that 18 came in at trial that the defendant had 19 scratches on his arm and there were nail 20 scrapings from the victim that were taken 21 by the medical examiner, and those nail 22 scrapings, that envelope, went back to the 23 city of Riviera Beach. That's the last 24 place it's shown to be going. 25 Now, it's got to be in there - 33 1 somewhere. And Judge Hoy did say that if 2 they're not cooperative, although he's not 3 here anymore, he may have to order an 4. inspection of everything. 5 And they're not being cooperative. 6 They're not. I mean, they just told me 7 outside it was 100 boxes, and now they're 8 coming in here with 1,000 boxes. 9 MS. GODDEAU: Your Honor, if I may. 10 Christy Goddeau, on behalf of the city. . 11 Just to clarify, when we talked about the 12 100 boxes, that was believing that his 13 intent of the motion was to look for the 14_ boxes that would have been stored in close 15 proximity to the box. 16 When he first argued his motion to 17 you, he made the more broad statement that 18 he wanted every box, so it does go from 19 roughly 100 boxes to thousands of boxes. 20 And what AC Jones has testified to is . 21 that the search that they did was of those 22 hundred or so boxes that were stored close 23 to the box, which would have been the 24 other homicide cases stored in a similar 25 area during that time frame. 34 1 MS. MILLER: Your Honor, due to the 2 fact this case has been pending about five 3 years, one possible resolution, if there's 4 any left of reasonable probability to 5 search and we could get a little more 6 information on that, is to go ahead, set a 7 time limit, have the city conduct the 8 search. 9 We need an evidentiary hearing on 10 this case, Your Honor. We need a hearing 11 where we can subpoena in the witnesses from 12 the city who did the search. They can 13 testify. They can tell you what they've 14 done. They can tell you every avenues 15 they've looked that, what they found, and 16 then there'll be a decision by Your Honor 17 whether the evidence exists or not. 18 At that point we would go forward - 19 with testing of.the bedsheet, if that's 20 what Your Honor found appropriate, but I 21 perhaps 90 days, perhaps, you know, some - 22 sort of time frame where they can finish up 23 any sort of loose ends, if there are any 24 that could be done, if there is anything 25 else, or we can just go ahead and set the 35 1 hearing, have the people come in, have them 2 testify as to what's been done, and then 3 Your Honor make a ruling on that. 4 And so it's time. We've all been 5 looking for many years. 6 MR. MOLANSKY: Your Honor, I have to 7 point something out. I'm a little bit 8 disturbed and perplexed that the state 9 attorney and the state -- this was filed 10 September 27th. They come in here today 11 and tell me they've done this inspection. 12 I talked to Miss Miller, I don't 13 know, a dozen times. She never alluded to . 14 that. She never told me, and then comes in - 15 today when the hearing's set, and basically 16 I feel like I've been sandbagged, you know, 17 telling me that they went through all the 18 boxes. 19 There's a court order in effect. 20 They told me they hadn't gone through any 21 boxes. I was up there. I think Miss 22 Miller might have been with me with their 23 inspector. 24 When we went through the box, 25 nothing was said about this, and now, all 36 1 of a sudden when we want to inspect the 2 boxes, here we go. Here's our witnesses. 3 Let's come into court and let's say this 4 now. 5 I mean, I just it's perplexing and 6 it's disturbing and it sounds like it's not 7 really the state's good--faith effort to 8 actually seek justice in this case. 9 It's really something that's being 10 done, and it's a sandbag action. That's 11 how I have to look at it as because I just 12 don't see it. 13 The 27th of September, not a word 14 said, and I've been in communication. We 15 took all these depositions pursuant to 16 Judge Hoy's order. Miss Miller said not a 17 word about this. 18 I never had one communication with 19 the city attorney. I sat down with 20 Assistant Chief Dave Harris and took his 21 deposition. He got on the phone and he was 22 calling around trying to figure out where 23 these were stored. 24 Nothing was said by Assistant Chief 25 Harris, who's been there for years and 37 1 years, as to any searchsudden today, oh, here we go. Now we're 3 coming out with this. 4 I just don't see it, Judge. I 5 really, really have to tell you, you know, 6 and I don't mean to say anything about any 7 - other lawyer's conduct, but I find this to 8 be very disturbing that it came out now. 9 And it says in this motion, if you 10 read where it says after the wherefore 11 clause, and I'm going to read it right into 12 the record, enter an order allowing 13 inspection of all evidence boxes that were 14 stored with defendant's evidence box prior 15 to and after the storm damage. 16 That's 511 I want, is to look through 17 those that were with it, are those that 18 were picked up when the evidence was 19 damaged. 20 I don't want to go through 1,000 21 boxes. I never asked for that, and I never 22 asked for the defense to go through them 23 personally. 24 We always when we went up there, {uh 25 and I believe Miss Miller was there or her 38 1 investigator, our investigator was there as 2 well, and we took photos of everything that 3 was unpacked from the box, all that 4 they did was, the city employees unpacked 5 them. We never touched anything, so I 6 don't know how that came out. 7 I just ask that the Court help us 8 find this, enter an order that's fair and 9 just so we could find this evidence, we 10 could look for it and bring this thing to 11 closure. That's all we want. 12 THE COURT: You get last words. 13 MS. MILLER: Your Honor, as far as 14 the fact that the search was completed in 15 January 2011, I heard that from Assistant 16 Chief 17 THE COURT: Move a little closer to 18 the microphone. 19 MS. MILLER: I heard that from 20 Assistant Chief Jones this morning. Any 21 allegation of sandbagging is absurd. I 22 would never do that. 23 If we can find those fingernail 24 scrapings, I've been working for years with 25 the defense to try to find them. We've set - 39 1 up times to go down there. I don't know 2 what more can be done. 3 If there is more to be done, then I'm 4 all for it, but that's more something that 5 would need to be addressed by the city 6 because I'm not aware of what else can be 7 done. 8 THE COURT: All right. So 9 MS. GODDEAU: Your Honor, if I may, 10 just to clarify one thing. I'm sorry, but 11 I just want you to know. The city didn't 12 know anything about this until November 13 18th when Leigh Miller contacted us about 14 this motion. 15 The motion was never sent, served on 16 the city, who has possessions of this 17 evidence. So the first I'm hearing of this 18 . is the middle of November, right before 19 Thanksgiving. 20 So we've been working to figure out 21 what's going on. We came down to the 22 hearing today to explain what has been 23 done, the way the evidence is stored and to 24 hopefully find the evidence because, 25 despite what defense counsel is suggesting, 40 1 we want to find the evidence. 2 If the evidence suggests -- if the 3 evidence exists, the city wants to find the 4 evidence. But what the city doesn't want 5 to do, the city doesn't want to be forced 6 to go through a thousand boxes on a fishing 7 expedition, as Miss Miller said, searching 8 for something that more than likely isn't 9 there if it's not in the hundred boxes that 10 this box was stored with. i 11h So, Your Honor, if you're considering 12 granting this motion, what we would ask for 13 is, give us 90 more days to search, like 14 Miss Miller said, to search any further 15 loose ends that we think would be 16 reasonably related to this box, and we'll 17 bring in someone to testify at the end of 18 - that time frame as to the additional search 19 we did and how we believe we did the best 20 we could to find this evidence. 21 Maybe we'll find it and maybe this 22 will all get resolved that way. 23 THE COURT: Okay. I heard defense 24 counsel's argument and you cited to the 25 wherefore clause. But if you look at your 41 1 wherefore clause, it goes to the very heart 2 of my problem with the motion, which is, 3 enter an order. All I'm asking for, Judge, 4 all I'm asking for is enter an order 5 allowing inspection of all evidence boxes 6 that were stored with defendant's evidence 7 box prior to and after the storm damage. 8 So the definition of all the evidence 9 boxes stored has been a moving target 10 during this hearing today, what's nearby, 11 everything in the building. 12 It goes from a thousand down to a 13 hundred. And because of all the blustery 14 back and forth, we made no progress as far 15 as if I could get the lawyers 16 [indiscernible], go out and talk to each 17 other a little bit and maybe, if we narrow 18 what you're looking for, we can make some 19 progress because I think the last comments 20 that were made were the best comments, 21 which are, let's find it and let's give it 22 a good--faith effort to find it. 23 Now the question is, what's that 24 process going to be, and what are you 25 comfortable with and what are you 42 1 comfortable with? But if everybody agrees, 2 if you really listen to what you're saying, 3 there should be a process and we should do 4_ this. 5 So we're not as far apart, but it's 6 all this posturing that we're not making 7 progress. So I'm asking you all to talk - 8 and narrow this down and talk about a 9 procedure and come back to me. 10 Then if you can't, I need somebody to . 11 really tell me, here's a chart and here is 12 where the box is located and here's the 13 numbering system and here was our thought I 14 process, you know, we use the Dewey Decimal 15 System, something. 16 I don't know enough to say there are 17 a thousand boxes, 900 of them were stored 18 in a side room, and the hundred boxes that 19 we're talking about were stored in this 20 little sub-room. We've made a 900-box 21 progress in easy effort. 22 And I'm telling you all, everybody's 23 agreed that they want to find this. You 24 don't think they want to find it as much don't know. Do you see -- 43 1 does everybody understand -- 2 MR. MOLANSKY: Right. 3 THE COURT: where I'm coming from? 4 And then I have a second question. So 5 you're saying from a legal 6 perspective and I have to be honest with 7 you. I don't bluff my way through these 8' things. 9 This is the first one, other than the 10 one we had before, that there's been a 11 second search of this evidence. This is 12 the first one that's got postured in front . 13 of me since I've sat criminal, so I'm not I 14 going to try to tell you I'm an expert on 15 this area of law when you ask for 16 retesting. 17 But Miss Miller says the bloody - 18 bedsheet doesn't necessarily meet the 19 criteria under the law to be tested. Is 20 that what you said? 21 MS. MILLER: That's my understanding. 22 I'm not sure if it's in regard to his rule 23 on that -- 24 THE COURT: Just from a practical 25 standpoint where we are in this case and I 44 1 heard here today, my practical mind's 2 telling me, let's test the bedsheet. 3 MR. MOLANSKY: That's what I thought 4 too. 5 THE COURT: Now, but I always tell 6 everybody because this is the first time 7 the three of you have been in front of me. 8 She's been in front of me a lot but, the 9 three of you, I think this is the first 10 time everybody's been here with me. 11 I always say I like to be practical, 12 but ultimately I'm going to follow the law 13 first, even though sometimes I scratch my 14 head and say, that's not practical. 15 So what I want to do is follow the 16 law, so I want to give you that opportunity 17 to tell me why I shouldn't have the bloody 18 bedsheet tested. If you can reach an 19 agreement on that as well, it seems like 20 based on the totality of the circumstances 21 here, it would be the right thing to do. 22 But if you tell me the law and he 23 hasn't met that standard to have it tested, 24 I'm going to follow the law first. You can 25 appeal me and I have no problem with it. 45 1 So what I'm asking you all to do- 2 right now is take my words that I've just 3 stated on the record, leave, talk, see if 4 you can reach some agreement. 5` If you can't, I need you to set this 6 for an evidentiary hearing. I think you 7 need about an hour, hour and?a--half of 8 time. I will squeeze you in; I will do 9 that. I will make it happen for you sooner 10 rather than later. . 11 How long do you guys need to try to 12 hammer this out and come back with 13 something? How long do you need, 14 Counselor? 15 MR. MOLANSKY: Your Honor, I think it 16 could be done within 10 minutes, but I 17 haven't -- 18 THE COURT: That won't happen by 19 virtue of the way this went this morning. 20 MR. MOLANSKY: I tried to hammer it 21 out before. I've asked them 22 THE COURT: I believe you. 23 MR. MOLANSKY: I've asked them. I 24 just want to point something out, every 25 time that we did a search for these boxes, 46 1 when we actually looked for the evidence QI, 2 initially, I contacted Miss Miller and her 3 office. And my investigator, who's 4 court-appointed, went with their 5 investigator and we searched for them. 6 Now all of a sudden there's been this 7 search and we weren't made part of it. 8 That's troubling to me as well. And I'm 9 not calling . 10 THE COURT: Is there -- the order -- 11 it's not here, I haven't seen it yet, 12 nobody's handed destroy the evidence, not that the police 14 department doesn't have the right to 15 inventory, search, out of curiosity's sake, 16 look at any piece of evidence that they 17 have in their evidence locker. Right? 18 MR. MOLANSKY: They do. 19 THE COURT: I don't know what the 20 now, if you got yourself in front of a 21 jury, you might be able to make some hay 22 with that, but I don't think they've done 23 anything wrong as violating an order, if 24 that makes sense. 25 MS. No, there's no 47 1 [indiscernible] laid out for that. 2 THE COURT: Right. The order said 3 don't destroy it. So right now I'm taking 4 no action, and I'm going to let you all 5 talk regarding the bedsheet and the search. 6 Hopefully you can narrow it and reach 7 an agreement. If you can't, I'm just going 8 to rule. Bring me the law. Bring me the 9 witnesses. Bring me some parameters of 10 what this room looked like and let's have a 11 hearing and I'll rule and let's just move 12 on. Fair enough? 13 MR. MOLANSKY: All right. That will 14 be fine. 15 THE COURT: So what I'm going to do 16 is take no action today. You guys would 17 set it for hearing with Miss Driscoll. 18 Is an hour and--a--half enough time if 19 we reach that point? 20 MR. MOLANSKY: Right. 21 THE COURT: Is that appropriate? 22 MR. MOLANSKY: Yes. 23 THE COURT: That's enough time? 24 MR. MOLANSKY: That'll be. 25 THE COURT: When they call you, it'll 48 1 be for an hour. Eair enough? 2 MR. MOLANSKY: Yes. - 3 THE COURT: If you need more time, 4 just tell us. 5 MS. MILLER: Can we set it for, would 6 90 days out be too far away for that so the . 7 city can finish doing if there's anything 8 else they would like to do? 9 THE COURT: Well, I'm going to pray . 10 that you guys can reach an agreement. If 11 you can't reach an agreement as to the 12 substantive, that you can reach an 13 agreement of when the court date's going to 14 be set. 15 If not, we'll have a status check 16 hearing on when I'm going to set the court 17 date. 18 MR. MOLANSKY: All right. That will 19 be fine. I mean, I'll go either way with 20 it. 21 . THE COURT: Nice to meet you. 22 MR. MOLANSKY: Thank you very much, 23 Your Honor. 24 MS. GODDEAU: Thank you, Your Honor. 25 THE COURT: Thanks, guys. 49 1 [Thereupon, the proceedings were 2 concluded. THE STATE OF FLORIDA 5 COUNTY OF PALM BEACH 6 7 I, Lisa R. Miskanic, Certified 8 Electronic Transcriber of electronically recorded 9 proceedings in the Fifteenth Circuit as authorized 10 by Administrative Order 2.011 3/93, do hereby 11 certify that the copy of the Master CD of the 12 Electronically Recorded Proceedings which took 13 place on the 1st day of December, 2011, is the 7 14 original CD of the above proceedings recorded in 15 its entirety and archived in the Centralized 16 Recording Department. 17 Dated this J?liifigy of December, 2011 18 20 Lisa R. Miskanic, CET 21 Certified Electronic Transcriber 22 Fifteenth Judicial Circuit 23- 24 25