June 23
FLORIDA:
State demands listing of Smith defense names----Carlie Brucia case leads
to records debate
During a pre-trial hearing for the man charged with killing Carlie Brucia,
attorneys argued over release of information relating to witnesses and DNA
evidence.
Assistant State Attorney Debra Johnes Riva argued Wednesday that Assistant
Public Defender Adam Tebrugge had a duty to disclose the names of
witnesses he intends to call during the penalty phase of the trial, should
Joseph P. Smith be convicted.
Riva said Tebrugge had a "continuing discovery responsibility" and that
the late release of names "puts the state in a horrible position."
If there's not enough time to interview the witnesses, Riva said, there's
no way to investigate the validity of their statements. And history shows
that the defense calls more witnesses in the penalty phase of the trial,
she said.
While the state has a duty to disclose all evidence and potential
witnesses, the defense only has to disclose the names of witnesses it
intends to have testify, Tebrugge said.
He said he hasn't had enough time to look through all the evidence.
"I've collected several thousand pages of records. I don't think it would
serve my client well to simply copy them and turn them over without
reviewing them," Tebrugge said.
Smith, 39, is scheduled to stand trial in November for the February 2004
abduction and murder of Brucia, 11, of Sarasota. Smith has been charged
with 1st-degree murder, kidnapping and capital sexual battery.
The state is seeking the death penalty in the case. Authorities say Smith
confessed to abducting and murdering Brucia. Smith entered a plea of not
guilty.
Tebrugge, in court Wednesday, also wanted Judge Andrew D. Owens to take
into account the "unique features" of the Smith case, which has received a
great deal of public and media scrutiny.
Tebrugge said public pressure could dissuade witnesses from testifying on
behalf of Smith. This is an additional argument against releasing the
names now, he said.
But Riva argued that case law provides no exceptions to discovery rules in
death penalty cases. The penalty phase and the trial phase have the same
rules, she said.
Tebrugge said Owens has the authority to set a timetable for disclosure.
Owens did not indicate when he would rule on the requirements.
A law professor said in a phone interview that Tebrugge's concerns may be
valid.
"I think it is correct that releasing those names now will subject them
(the witnesses) to some press or public scrutiny," said Robert Batey,
professor of criminal law at Stetson University College of Law. "Because
it's a capital case the defense attorney wants to be very careful about
disclosing no more than he needs to disclose."
Weighing DNA evidence
Indicating a potential theme for the defense, Tebrugge argued in court
that he needed to have access as soon as possible to a 2nd round of DNA
evidence being compiled by the FBI.
Riva said she expects the results to come back in July, but doesn't want
Owens to set a cutoff date until she can see the results.
"I will show that the FBI has a terrible record with forensic evidence,"
Tebrugge said.
Later citing the book, "Tainting Evidence," by two journalists who
investigated the FBI crime lab in the late 1990s, Tebrugge said he needed
time to review the DNA information with a 10-step protocol.
The book, along with a 1997 investigation by the inspector general of the
Justice Department, shows widespread errors in the FBI's methods, he said.
It is an argument he will take to the jury.
Tebrugge said he will depose witnesses from the FBI lab to testify in the
trial. But doing so, he said, is a burdensome process for which he must
write a letter outlining the questions he intends to ask.
"The problem is the FBI is not an easy agency to work with," Tebrugge
said. Owens said it was an "unnecessary complication" to use the FBI's
forensic investigation as opposed to the capabilities of the Florida
Department of Law Enforcement.
"This unlevels the playing field," said Owens, who did not decide
Wednesday when the DNA discovery must be completed. "There needs to be a
lot of cooperation with the state and the defense."
Riva said after the hearing that FBI protocol doesn't place a burden on
the defense.
"I have to comply with those same rules," Riva said. "All those rules ask
for is a summary of testimony from the agency he has to depose. He knows
what those agents have done in the case. This happens in every case with
the FBI."
Level of cooperation
Riva and Tebrugge said they will work together to gain access to the
entirety of camera footage that was taken at Evie's Car Wash along Bee
Ridge Road in Sarasota. Camera images showing Brucia being abducted by a
man the prosecution believes is Smith were broadcast extensively on
television following the incident last year.
Tebrugge said there are other images he would like to view in preparation
for his case. Doing so will require copying the hard drive of the computer
at the location and bringing in an expert to convert all the material to a
viewable form, Riva said.
Tebrugge said he might bring criminal defense attorneys from Bradenton
onto the case. As a result of the death of Assistant Public Defender James
Slater in May, Tebrugge said there is a severe shortage of attorneys in
the circuit who are qualified to work in death penalty cases.
Owens set the next pre-trial hearing for July 15. It is unknown when he
will rule on Wednesday's motions, but Riva said he usually makes a
decision within a day or 2.
(source: Bradenton Herald)
