A. The original trial proceedings.
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." (R. 971).
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.
(R. 653-54).
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?
A No.
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?
A Yes.
Q Isn't it also fair to say everything
was dark from this person's head down to his shoulders?
A Yes.
Q But from his shoulders down,
you can describe his clothing because the light was shining on
the clothing; isn't that correct?
A Yes.
Q Wouldn't it be fair to say
you picked that picture of Mr. Smith based upon his shoulders?
A Yes.
Q You couldn't identify his face,
right?
A No.
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?
A No.
Q You could not, correct?
A No.
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?
A Yes.
(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 the line-up:
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?
A Yes.
Q Do you recall what that conversation
was?
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 telling
me.
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. 769).
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?
A No.
Q What exactly was Gerald Davis
asked?
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?
A No.
Q Now when he said no, did you
catch that he was saying no to scars?
A No.
Q Had he previously told you
about a scar?
A Prior to taking a taped statement
is when he told us about the scar.
(R. 953).
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?
A Absolutely.
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 talking about.
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 answer, no.
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?
A No.
Q But the police had you fill
out a form, correct, to indicate that you picked out number five
or whoever?
A Yes.
Q And didn't you keep on saying
you weren't sure, only that he looks like the guy?
A Yes.
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?
A No.
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?
A Yes.
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?
A No.
Q That's true, isn't it?
A Yes.
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?
A Yes.
Q Wasn't it apparent to you that
the police wanted you to make an identification?
A Yes.
(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 witness:
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 relatives:
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 in.
(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
16th?
A Yeah, sure did.
(Scheff depo at 41).
Q Anything else happen on the
17th of any consequence?
A No.
(Sceff depo at 48).
Q Was anything else done on the
18th that we haven't discussed?
A No.
(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 answer:
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?
Q Yes.
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.
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