IN THE SUPREME COURT OF FLORIDA CASE NO. SC11-1761

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KEVIN DON FOSTER, Appellant, v. STATE OF FLORIDA, Appellee.

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ON APPEAL FROM THE CIRCUIT COURT OF THE TWENTIETH JUDICIAL CIRCUIT, IN AND FOR LEE COUNTY, STATE OF FLORIDA

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INITIAL BRIEF OF APPELLANT

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TERRI L. BACKHUS Special Assistant CCRC-South Fla. Bar No. 0946427

SCOTT GAVIN Staff Attorney Fla. Bar No. 0058651

CCRC-South 101 3rd Avenue, Suite 400 Fort Lauderdale, Florida 33301 Tel. (954) 713-1284

COUNSEL FOR APPELLANT

PRELIMINARY STATEMENT

Citations in this brief to designate references to the

records, followed by the appropriate page number, are as

follows:

“R. ___” – Record on appeal to this Court in the 1988

direct appeal;

“PC-R. ___” – Record on appeal to this Court from the 2011

summary denial of post-conviction relief;

All other citations will be self-explanatory or will

otherwise be explained.

REQUEST FOR ORAL ARGUMENT

This is a capital case. The resolution of the issues in this

action will determine whether Mr. Foster lives or dies. A full

opportunity to air the issues through oral argument is more than

appropriate in this case, given the seriousness of the claims

involved including Mr. Foster’s actual innocence. Therefore, Mr.

Foster, through counsel, respectfully urges the Court to permit oral argument.

i TABLE OF CONTENTS

PRELIMINARY STATEMENT...... i REQUEST FOR ORAL ARGUMENT...... i TABLE OF CONTENTS...... ii TABLE OF AUTHORITIES...... iv INTRODUCTION...... 1 STATEMENT OF THE CASE AND FACTS...... 4 Facts Relevant to Ineffective Assistance of Counsel ...... 31 Facts relevant to trial counsel=s performanceCLay Witnesses...... 42 SUMMARY OF ARGUMENT...... 45 ARGUMENT I...... 46 MR. FOSTER WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL AT THE PENALTY PHASE OF TRIAL...... 46 a. Trial Counsel=s limitation of investigation to Mrs. Foster and their 18-year-old client was unreasonable..... 48 b. Trial counsel=s limitation of investigation without discovering Mr. Foster suffered from depression and other mental health deficits was unreasonable...... 64 c. Mr. Foster=s Defense Team Was Disorganized, Confused and Impaired...... 74 d. Trial Counsel Unreasonably Failed to Obtain Mental Health Mitigation...... 76 ARGUMENT II...... 87 THE CIRCUIT COURT ERRED IN SUMMARILY DENYING MR. FOSTER’S CLAIMS IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS...... 87 a. Juror Misconduct...... 88 1. Improper consideration of pretrial media coverage...... 91 2. Jurors Failure to Follow Jury Instructions...... 91 b. Failure To Impanel An Impartial Jury Casts New Light On Change Of Venue Motions...... 94 1. Rules Prohibiting Juror Interviews...... 97 2. Ineffective Assistance of Counsel For Failure To Object To The Avoid Arrest Aggravator At Penalty Phase...... 98 ii c. Ineffective Assistance of Counsel Pre Trial and Guilt Phase...... 99 1. Trial counsel failed to challenge the State’s ballistics expert and evidence...... 99 2. Failure to object to non-expert testimony...... 103 3. Failure to challenge admissibility of scientific evidence...... 104 4. Failure to effectively challenge admissibility of hearsay evidence...... 105 d. Brady/Giglio Violations and Newly Discovered Evidence Show Forensic Science Used To Convict Mr. Foster Is Invalid...... 107 e. Lethal Injection Claim...... 111 f. Newly Discovered Evidence that Mr. Foster’s Death Sentence constitutes Cruel and Unusual punishment...... 114 g. Cumulative Analysis...... 115 h. Death Sentence Constitutes Cruel and Unusual Punishment...... 116 i. Shifting of Burden of Proof to Mr. Foster violation of Eighth and Fourteenth Amendments...... 118 CONCLUSION...... 119 CERTIFICATE OF SERVICE...... 120 CERTIFICATE OF TYPE SIZE AND FONT...... 120

iii TABLE OF AUTHORITIES Cases Ake v. Oklahoma, 470 U.S. 68 (1985)...... 82, 85 Blanco v. Singletary, 943 1477 (11th Cir. 1991) ...... 58 Booker v. State, 969 So. 2d 186 (Fla. 2007)...... 91 Brady v. Maryland, 373 U.S. 83 (1963)...... 93 Buenoano v. State, 708 So. 2d 941 (Fla. 1998)...... 92 Caldwell v. Mississippi, 472 U.S. 320 (1985)...... 124 Card v. State, 803 So. 2d 613 (Fla. 2001)...... 104 Chandler v. U.S., 218 F. 3d 1305 (11th Cir. 2000) ...... 47 Chester v. State, 737 So. 2d 557 (Fla. 1999)...... 94 Colina v. State,, 570 So. 2d 929 (Fla. 1990)...... 97 Conohan v. State, Case No. 97-166-CF...... 61 Cooper v. Secy Fla Dept. Corrections, 646 F. 3d 1328 (11th Cir. 2011) ...... 51, 60 D.R.C. v. State, 670 So. 2d 1183 (Fla. 5th DCA 1996)...... 109 Dafour v. State, 495 So. 2d 154 (Fla. 1986)...... 105 Davis v. State, 461 So. 2d 67 (Fla. 1984)...... 98, 99 De La Rosa v. Zequeira, 659 So. 2d 239 (Fla. 1995)...... 94 Eaglin v. State, 19 So. 3d 935 (Fla. 2009)...... 97 Fla. Bar v. Leon Rolle, 661 So. 2d 301 (Fla. 1995)...... 36 Fla. Bar v. Rinard, Case Nos. SC00-501; SC03-721; SC05-1879... 36 Ford v. State, Case no. 97-351-CF...... 61 Foster v. State, 778 So. 2d 906 (Fla. 2000)...... 6, 7, 85 Giglio v. United States, 405 U.S. 150 (1972)...... 93 Godfrey v. Georgia, 446 U.S. 420 (1980)...... 102 Green v. State, 975 So. 2d 1081 (Fla. 2008)...... 103 Griffin v. State, 866 So. 2d 1 (Fla. 2003)...... 103 Guzman v. State, 868 So.2 d 498 (Fla. 2003)...... 93 Hernandez v. State, 4 So. 3d 642 (Fla. 2009)...... 103 Hertz v. State, 803 So. 2d 629 (Fla. 2001)...... 104 Hitchcock v. Dugger, 481 U.S. 393 (1987)...... 124 Hoy v. State, 353 So. 2d 826 (Fla. 1977)...... 100 iv Johnson v. Sec=y DOC, 643 F. 3d 907 (11th Cir. 2011) ...... 47, 52, 62, 70 Jones v. Walker, 540 F. 3d 1277, 1288 (11th Cir. 2008) ...... 54 Kelvin v. State, 610 So. 2d 1359 (Fla. 1st DCA 1992)...... 109 Kyles v. Whitley, 514 U.S. 419 (1995)...... 93 Lowrey v. State, 705 So. 2d 1367 (Fla. 1998)...... 94 Manning v. State, 378 So. 2d 274 (Fla. 1980)...... 99 Maynard v. Cartwright, 108 S. Ct. 1853 (1988)...... 103 Maynard v. Cartwright, 486 U.S. 356 (1988)...... 124 McCaskill v. State, 344 So. 2d 1276 (Fla. 1977)...... 99 Menendez v. State, 368 So. 2d 1278 (1979)...... 103 Mullaney v. Wilbur, 421 U.S. 684 (1975)...... 124 Murphy v. State, 252 So. 2d 385 (Fla. 1971)...... 99 Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976)...... 101 Porter v. McCollum, 130 S. Ct. 447 (2009)...... passim Provenzano v. State, 497 So.2d 1177 (Fla. 1986)...... 98 Riley v. State, 366 So. 2d 19 (Fla. 1978)...... 104 Rompilla v. Beard, 545 U.S. 374 (2005)...... 60, 61 Ruby Foster v. State, Case No. 00-CF-002609-A...... 53 Russ v. State, 95 So. 2d 594 (Fla. 1957)...... 102 State v. Coney, 845 So. 2d 120 (Fla. 2003)...... 91 State v. Dixon, 283 So. 2d 1 (Fla. 1973)...... 123 Strickland v. Washington, 466 U.S. 668 (1984)...... passim Tanner v. United States, 483 U.S. 107 (1987)...... 97 Tanzi v. State, 964 So. 2d 106 (Fla. 2007)...... 97 Thompson v. Wainwright, 787 F. 2d 1447 (11th Cir. 1986) ...... 60 Trawick v. State, 473 So. 2d 1235 (Fla. 1985)...... 97 Turner v. Louisiana, 379 U.S. 466 (1965)...... 102 Voyles v. Watkins, 489 F. Supp. 901 (N.D. Miss. 1980)...... 59 Wiggins v. Smith, 539 U.S. 510 (2003)...... passim Williams v. Allen, 542 F. 3d 1326 (11th Cir. 2008) ...... passim Williams v. Taylor, 529 U.S. 362 (2000)...... 52, 61, 70, 82 Woodson v. North Carolina, 428 U.S. 280 (1976)...... 83 v Zant v. Stephens, 462 U.S. 862 (1983)...... 103 Statutes Fla. Stat. § 921.141(5)(e)...... 98 Other Authorities ABA Guidelines for Appointment and Performance of Counsel in Death Penalty Cases 1989 ...... 60 Rules Fla. R. Crim. P. 3.851...... 88 Fla. R. Prof. Resp. 4-3.5(d)(4)...... 97

vi INTRODUCTION

Kevin Foster was 18 years old at the time of this crime. He

was not a child of advantage. He did not have an idyllic

upbringing. He lived in a chaotic, violent environment with a

revolving door of four different fathers. He suffered from

depression, abandonment, and frontal lobe deficits that affected

his impulse control and judgment. But his jury did not hear this

part of his life.

The “Lords of Chaos” trial was the biggest case to hit Ft.

Myers in decades. The story of a group of misguided teenagers

shooting, Mark Schwebes, a beloved Riverdale High School band

teacher, was fodder for a media circus that played on local and

national newspaper and television constantly from 1996-98. The

public defenders on the case filed 17 motions to change venue.

Still, it was a circumstantial case. The only piece of physical evidence, a shotgun belonging to Mr. Foster, was found in Peter Magnotti’s car trunk. Chris Black and Tom Torrone, the teens who had been caught vandalizing the school, were afraid when Schwebes threatened to report them to the school resource officer. Mr. Black decided Mr. Schwebes had to die.

Kevin Foster did not attend Riverdale High. He had no criminal history. He did not know the victim and had not been confronted by him on the night of the crime. The evidence against him was hearsay statements by Magnotti, Shields and 1 Black. They all pled guilty in exchange for testifying against

their friend, Kevin, whom they called, “God.” The prosecution

set out to crucify him.

The defense spent only 15% of its time on the penalty

phase. One public defender took primary responsibility for the

whole trial. Investigators were not sent to Texas or Oklahoma to

interview family members or friends. No one spoke with Kevin’s

biological father. No mitigation specialist was used or hired.

Instead, the public defender hired an ex-con fresh out of prison

for robbery and drug charges to act as the “go-to” guy on Kevin

Foster’s case for discovery. The “go-to” guy spent his time

preparing a slide show of family photos for penalty phase, and

having a sexual relationship with Kevin’s mother.

The defense decided on a “good kid” defense early on and

turned over the duty to investigate penalty phase to Kevin’s

mother, Ruby Foster. The defense intended to rely on Kevin’s

young age and his difficult birth and that he had done good

things to “humanize” him. But, the wheels came off that defense

very quickly. No one gathered hospital records to show evidence

of Mr. Foster=s birth apoxia. No one explained how that affected

Kevin’s development or behavior. Of the records the defense had, it was not clear anyone actually read them. All of the penalty phase witnesses had been contacted by Mrs. Foster, and thus, were tainted, according to the prosecution. Though a mental 2 health expert was appointed shortly after Kevin’s arrest, one only saw him for a couple of hours.

By the time of the 1998 trial, the defense appeared

“confused.” Trial counsel suffered tremors. He ran out of peremptory challenges during voir dire. Of the jurors who were empanelled, one did not disclose his prior criminal history. One couldn’t help comparing the trial evidence to the newspaper accounts she’d read. Others had difficulty following the court’s instructions. No ballistics expert was retained for the one piece of forensic evidence in the guilt phase. Hearsay was admitted, and Mr. Foster was found guilty.

The State portrayed Mr. Foster as an independent man responsible for his own affairs. He was friends with foreign exchange students, and went to Europe to visit them once. He had kittens and lived an idyllic life.

In reality, Kevin had dropped out of school two years before the crime, after shooting himself in the abdomen and then jumping off a bridge. Though he had a job, Kevin’s checks were mostly written and endorsed by his mother. Due to traffic tickets, she drove him around because he lost his license (R.

3750-3788). He lived at home with a violent step-father who was physically and mentally abusive. Kevin was “lost.”

The prosecutor told the jury in the penalty phase that:

This was a choice made by a young man who had every 3 advantage . . . [t]his evidence is the farthest thing from mitigation, the farthest thing. The defendant’s claim today to mitigating factors is simply another attempt to escape accountability. . . To play on our sympathies and divert you from following the law. This is what I say when an attempt is made to play on your sympathies and divert you from following the law. How dare they? How dare they?

(R. 2057-58).

Mr. Foster was sentenced to death. “He didn’t give us a

whole lot to go on. He sat emotionless during the whole thing.”

Ft. Myers News-Press, April 10, 1998 (quoting jury foreman

Weatherly).

Though the theory was to “humanize” Kevin Foster, the

defense presented a Leave-It-To-Beaver, sanitized version of

what the teenager actually experienced. Because trial counsel abdicated their duty to investigate and prepare Mr. Foster’s case, the jury was left with nothing to explain how Kevin Foster got to be involved with a group of teenagers who called themselves the “Lords of Chaos.”

STATEMENT OF THE CASE AND FACTS

On May 21, 1996, a Lee County grand jury returned an

indictment charging Kevin Foster, Christopher Black, Derek

Shields, and Peter Magnotti with first-degree premeditated

murder for the death of Mark Schwebes. Mr. Foster was appointed

a Lee County Public Defender and entered a plea of not guilty.

(R.9). Before trial, the three co-defendants entered into plea

4 agreements on the condition that they testify against Mr.

Foster. Each testified against him.1 The State offered Mr. Foster a life sentence in exchange for a guilty plea. He declined and proceeded to trial. (R. 9-10).

In the two years before trial, the defense filed 17 motions for change of venue due to the massive pre-trial publicity in local and national media (R. 15-220; 221-421; 426-532; 537-548;

584-612; 638-648; 681-763; 766-799; 803-836; 841-883; 887-928;

962-967; 1026-1028; 1032-1040; 1157-1178; 1187-1196; 1202-1210;

1226-1230; 1325-1448). The motions were all denied. The case was ultimately tried in Lee County.

On March 11, 1998, the jury returned a verdict of guilty on the charge of first-degree murder (R. 1059). The penalty phase took place on April 9, 1998. The State presented one witness, the high school principal. It then rested its case.

This Court summarized the mitigation case:

The defense presented numerous witnesses who presented a picture of Foster as a kind and caring person. May Ann Robinson, Foster=s neighbor, testified that he once helped her start her car and offered to let her borrow a lawn mower. Robert Moore, another neighbor, testified that Foster was well mannered and a hard worker. Shirley Boyette found Foster to be very caring, intelligent and well-mannered. Robert Fike, Foster=s supervisor at a carpentry shop, and James Voorhies, his co-worker, found him to be a reliable

1 Derek Shields and Christopher Black pled to life without parole. Peter Magnotti received a 32-year sentence. Christopher Burnett and Tom Torrone received probation.

5 worker. Voorhies also testified that Foster was very supportive to Voorhies= son who suffered from and eventually died of leukemia. Similarly, Raymond and Patricia Williams testified that Foster was very nice to her son who suffered from spina bifida. Peter Albert, who is confined to a wheelchair related how Foster also helped Albert=s mother care for him after his wife died. Foster also helped Albert in numerous other ways, including preparing his meals, fixing things around the house, and helping Albert in and out of his swimming pool.

There was additional testimony that described Foster=s involvement with foreign exchange students. Foster was also known to have given positive advice to young children. Foster=s sister, Kelly Foster, testified to how he obtained his GED after dropping out of high school and that he obtained a certificate for the completion of an Aauto cad@ program at a vocational- technical school. Finally, Foster=s mother testified that he was born prematurely and suffered from allergies, and that Foster=s father abandoned him a month after birth. On cross-examination, many of the witnesses who testified to Foster=s kindness admitted that they had not been in contact with him for a number of years.

Foster v. State, 778 So. 2d 906 (Fla. 2000) (R. 1924- 2034).

In closing arguments, prosecutors urged the jury to sentence Mr. Foster to death because of the absence of mitigating evidence (R. 2056-2057). The jury voted for death by a 9-3 vote (R. 1239). On May 28, 1998, the trial court found two aggravating factors: (1) the capital felony was committed for the purpose of avoiding or preventing lawful arrest or effecting an escape from custody, and (2) the capital felony was committed in a cold, calculated and premeditated manner without any pretense of moral or legal justification. Fla. Stat.

6 '921.141(5)(e) and (i) (1997). The trial court rejected all 23 of the mitigators as statutory mitigators, though only one was statutory (Foster was 18 at the time of the crime). Fla. Stat.

'921.141(6)(h)(1997).(R. 1484). On June 17, 1998, the trial court sentenced Mr. Foster to death. (R. 1475-1486). The judgment and sentence were filed on July 7, 1998. (R. 1503-06).

A direct appeal was taken to this court on June 30, 1998

(R. 1489-90) and denied, Foster v. State, 778 So. 2d 906 (Fla.

2000)(corrected opinion). Rehearing was denied on January 22,

2001. The mandate issued on February 26, 2001.

An initial rule 3.850 post-conviction motion was filed to initiate public records on September 27, 2001. The litigation was extensive. During this time, a Petition for Extraordinary

Relief, For a Writ of Prohibition, and A Writ of Mandamus were filed with this Court appealing a Motion to Disqualify Judge

Anderson because he had been named on a list purportedly written by Mr. Foster in a separate conspiracy case involving his mother, Ruby Foster, and Jim Greenhill, a reporter for the Ft.

Myers News-Press. See, SC02-667. These motions were denied on

July 11, 2002.

Also during this time, Judge Anderson died. Mr. Foster=s case was re-assigned to Judge Edward Volz, Jr. While Mr. Foster=s post-conviction motion was pending, his trial attorney, Robert

Jacobs, also died. 7 Mr. Foster filed a timely Amended Motion for Postconviction

Relief on May 21, 2010. All claims were summarily denied except one B ineffective assistance of counsel at the penalty phase.

Before the evidentiary hearing, the State filed several motions seeking access to the trial attorney=s files and any files discussing the pre-trial mental health evaluations of Mr.

Foster. They were granted full access to the Lee County Public

Defender=s copy of the file and the original file in Mr. Foster=s possession. The State was allowed to search the computer server in the Lee County Public Defender=s Office for any correspondence or e-mail exchanges regarding mitigation evidence between trial counsel and their mental health experts. None were found (PC-R.

1536; March 4, 2011).

The State also filed a motion to have trial psychiatrist

Dr. Robert J. Wald, currently retired who conducted the pre- trial evaluation of Mr. Foster, brought to the evidentiary hearing, even though he had no recollection or records concerning his evaluation. Despite repeated rulings that Dr.

Wald=s testimony would be irrelevant, the trial court allowed him to testify (PC-R. 2631-32).

The evidentiary hearing was held on April 26-29, 2011. The court took judicial notice of all underlying records in the case

(PC-R.2075-76).

After the evidentiary hearing, but before closing arguments 8 were due, Mr. Foster filed a Notice and Motion to Reopen the

Evidentiary Hearing based on evidence that current inmate and

former paralegal, James Wootton, had perjured himself during the

hearing. The motion was denied, but the court allowed letters

Mr. Wooten wrote to Mrs. Foster and to undersigned counsel as

substantive evidence. (PC-R. 3528-3552; 3672-3673).

Mr. Foster=s post-conviction claims were denied on July 5,

2011 (PCR. 3674-4004). Rehearing was denied on July 22, 2011

(PC-R. 4005-4205). Notice of appeal was timely filed on August

25, 2011 (PC-R. 4363-64). This appeal is properly before this

Court.

At the 2011 evidentiary hearing, Mr. Foster presented

evidence to support his claim that trial counsel had

unreasonably failed to investigate or prepare for his 1996

penalty phase.

Post-conviction counsel presented evidence that trial

counsel failed to discover. They found that Ruby Foster, Kevin=s

mother, was the third youngest of eight children and had a twin

brother, Roy (PC-R. 2291-92)[The family had two sets of twins].

Ruby=s parents favored two or three of the children, but Ruby was not one of them (PC-R. 2255). In 1971, James Albritton, Ruby’s father, hit Ruby for trying to protect her older sister,

Josephine, when she had an illegitimate child at the same time she was living in her parents= house (PC-R. 2305-06). 9 Of Ruby=s eight siblings, Josephine and Ruth suffered from

severe paranoia (PC-R. 2297). Josephine eventually committed

suicide by shooting herself in the head (PC-R. 2698). Billy

Albritton, Ruby=s brother, is an alcoholic who struggles with

anger issues. One time, he got so mad he hit the side of the

refrigerator and broke his hand (PC-R. 2298). Roy, Ruby=s twin,

struggles with depression (PC-R. 2311). Linda Albritton, Ruby’s

sister-in-law thought Ruby had the Anerves.@ (PC-R. 2298).

After graduating high school in 1968, Ruby married Ron

Newberry (husband #1) whom her father liked. Ron had Aa bit of a temper.@ (PC-R. 2411-12). Ruby was hyperactive and impulsive (PC-

R. 2414). When Ron returned from Vietnam, Ruby became pregnant with Kelly, Kevin’s older sister. All, however, was not well.

Ron suffered from post-traumatic stress disorder from the war.

One day while working at the post office, he had a nervous breakdown and Awoke up in a straight jacket.@ (PC-R. 2424-25;

2172). When Kelly and Kevin spent weeks with him, he would have

Ameltdowns@ (PC-R. 2172), which upset Kevin and Kelly (PC-R.

2173).

Ruby and Ron divorced in August, 1976, when Kelly was in

first grade. The day after the divorce became final, Ruby

married Joe Bates, Jr. (PC-R. 2414). Ruby’s relationship with

her father, James, Awent south@ because she divorced Ron (PC-R.

2416). Ruby was disowned and her name was not to be spoken in 10 the house. (PC-R. 2296). James Acontrolled@ his wife, Mary, so that she could not see Ruby, and it hurt Ruby deeply (PC-R.

2296-99). When Ruby moved away from Amarillo, she kept in contact with her family, but not her father.

Ruby met Joe Bates, Jr. (husband #2) through her brother in law (PC-R. 2506). They dated for six months and then eloped when her divorce was final. Her parents did not know they married.

The first time Joe met Ruby=s parents, Aher father met them on the front porch with a rifle in his hands@ and threatened to

Akill us.@ (PC-R. 2507). Ruby was devastated and the marriage got off to a rocky start. One of Ruby=s brothers confronted Joe and told Ruby to Apack her things and leave@ their house. He threatened Joe when he left (PC-R. 2509). Kelly described Joe as a Abrutal man@ (PC-R. 2174).

Kevin was born through an emergency c-section on June 17,

1977 (PC-R. 2510). Northwest Texas Hospital birth records show

Kevin suffered from birth shock (now called perinatal asphyxia) and respiratory distress syndrome. Kevin had to be resuscitated twice (PC-R. 2453; 3000-3315; Def. Ex. E). It was a week before

Kevin was weaned off the oxygen incubator and sent home. Id.

Kevin had chronic health problems. His father described him as Auncontrollable@ and Ahyperness . . . more so than I would think a normal child would be.@ (PC-R. 2511). He was developmentally slow and abnormal (PC-R. 2464, 2467). Joe=s 11 mother, Irene, thought he was autistic (PC-R. 2467, 2467). Kevin was hard to feed and didn’t eat very well. He suffered from severe allergies. He was clumsy and delayed, but Ruby seemed completely unaware of Kevin=s issues (PC-R. 2470). Ruby=s father had no relationship with Kevin and told family members he should

Anever have been born,@ presumably because he was Joe=s son (PC-R.

2466). While James doted on his granddaughter Kelly, he ignored

Kevin (PC-R. 2300-01).

Joe and Ruby were married less than two years. Joe divorced

Ruby when she went to Dallas for four months and met Brian Burns

(PC-R. 2512). Joe did not approve of Ruby leaving the children for months at a time with Brian Burns (husband #3)(PC-R. 2514).

Kelly remembered that Joe Apopped in every 3 or 4 years@ until

Kevin was 8 or 9 (PC-R. 2176). Joe=s parents were around more often. Id. Jack Bates, Sr. said Ruby Awasn=t acting as a fit mother@ because she would Ago off and leave the kids at times.@

(PC-R. 2407). There was no structure in the house, but at other times, she was Aoverly-possessive.@ (PC-R. 2409).

When Joe and his mother, Irene, attempted to pick up the children, Mr. Burns called the police and Burns would not let them take Kevin. Id. An attorney advised them there was nothing legally they could do. Id. Later, Ruby asked Joe if he would relinquish his parental rights so John Foster (husband #4) could adopt Kevin. Joe refused, but found out later the adoption had 12 gone through without his approval (PC-R. 2516). At some point,

Joe was sent to prison on conspiracy charges (PC-R. 2176).

Joe’s parents, Jack and Irene Bates, lived in Oklahoma and the children visited them throughout their childhood. Dr. Faye

Sultan interviewed Irene Bates before she passed away. She said that Ruby was obsessed with her children (PC-R. 2466). Irene said the unstable home environment led to depression in Kelly and Kevin. Kelly dragged her leg, but doctors could find no physical reason why and cited the chaotic home life as the cause

(PC-R. 2467).

Ruby and her two kids moved away from Joe and lived with her sister, Pauline Logsdon. Pauline noticed that Kevin was developmentally delayed. He walked later than other children and had a crooked face (PC-R. 2470). He had no expression, and never initiated a physical or emotional connection. But Ruby believed he was totally normal (PC-R. 2471).

Ruby was a person of extremes (PC-R. 2462). Dr. Sultan observed that she was a very religious person but at the same time consumed with discussing things of a sexual nature (PC-R.

2462-63). She went from being excitable to tearful very quickly.

Id. Kelly described Kevin and Ruby=s relationship as over- dependent. Because Ruby was Awith them, not with them, with them and not with them,@ Kevin became too attached to her. He grieved when she wasn=t around. Id. 13 In 1978, Ruby met Brian Burns (husband #3) in Dallas. They

married quickly and moved from Texas to Arizona. Brian had

mental disabilities, bouts of uncontrollable anger, and was

violent (PC-R. 2459-60). He suffered brain injuries from a car

accident and now has a metal plate in his head (PC-R. 2460).

Living in that house was like walking on eggshells. No one

knew what would trigger an outburst, or when Brian would turn

violent. On one occasion, Brian Alost it one night and broke

[the] front windows of our rental house with his arms and tore

up the house and chokedYbroke my mother=s nose and did a lot of

damage.@ (PC-R. 2180-81). Kevin and Kelly were at home and were

traumatized. Id. They were afraid of his rage. Brian hit Kevin.

He took a knife to their waterbed. But other times, he took the

kids on vacations. Dr. Sultan described Brian as explosive and

unpredictable. (PC-R. 2460).

After school, Kevin and Kelly walked to Ron Newberry=s

house, and Brian would pick them up and they would spend the

night with him. Id. Ruby was dating other men and left the

children with Brian for long periods of time. Id. Ron found it

Aodd@ that she was leaving the children with Brian. (PC-R. 2420).

Ruby stayed with Brian, but when she met a truck driver, she moved to Plainview, Texas and took the children with her. One day, Ron came home saw furniture in his front yard. Ron soon learned that Ruby was moving back to Amarillo, and that she and 14 the truck driver had broken up. The truck driver’s furniture was sitting on his front lawn. (PC-R. 2421-22).

Ruby divorced Brian in 1980 because of his physical abuse and his mental issues made him incapable of showing emotional support to the children (PC-R. 2181-82). The family moved again from Amarillo, Texas to Cuba, Missouri where Ruby met John

Foster (husband #4) at a fuel stop (PC-R. 2184). Ruby went out on the road with Foster and she left the children again with

Brian Burns (PC-R. 2185). The children were young and missed their mother (PC-R. 2185-86). After two years in Missouri,

Foster moved the family to Florida to avoid paying child support to his ex-wife (PC-R. 2186-87).

Kevin’s home life continued to be unstable and unpredictable. Ruby had been involved with many men and had dragged the children from city to city (Amarillo, Dallas,

Arizona, Cuba, Missouri and Ft. Myers). The children changed schools frequently. Kevin had no positive, consistent male role models. When Ruby traveled with John Foster, Kevin and Kelly were shuttled between ex-husbands Ron Newberry, the Bates’ or

Brian Burns (PC-2187). It seemed that Ruby was either smothering her kids or leaving them behind.

In Florida, John Foster worked sporadically and caused more turmoil and instability in the house (PC-R. 2189). After losing another house because of John=s failure to keep a job, life 15 continued to be unstable. Ruby took the two children back to

Texas. In Amarillo, John bought a trailer catty corner from

Brian Burns (PC-R. 2190). In the winter, the pipes would freeze up, and they would stay over at Brian=s trailer. It would not be unusual for all of Ruby=s husbands to attend holiday dinners together (PC-R. 2190-91).

While back in Texas, Ruby=s father, James, who suffered extreme paranoia, began stalking their house (PC-R. 2193). Over the years, James had threatened Ruby and Kevin. He hated Kevin and wanted him dead (PC-R. 2193). He never got over the fact that Ruby had divorced Ron. In James= eyes, Kevin was unacceptable and not his grandson. Kelly recalled playing on a chair with Kevin and her grandfather went crazy and told them he was going to kill their mother and beat them (PC-R. 2194). His grandfather=s hatred affected Kevin. They knew their grandfather was unstable and they feared him. Id.

When Kelly was about to start high school and Kevin was in middle school, the family moved back to Florida (PC-R. 2190).

Kelly suffered from medical, mental, and emotional problems (PC-

R. 2192).

John was the most militaristic of Ruby’s four husbands. In

1990, John and Ruby bought a pawn and gun shop in Ft. Myers. He was a Vietnam vet, and an excellent marksman (PC-R. 2197). He liked to watch violent and graphic movies about Vietnam (PC-R. 16 2198). A few years after buying the pawn shop, the family deteriorated because John cheated on Ruby (PC-R. 2199).

John was very critical of Kevin (PC-R. 2463). He teased

Kevin and called him a sissy. He wanted him to be a real man.

Id. Kevin was very sensitive and was overwhelmed by John (PC-R.

2463). When Kelly and Kevin were in high school, they were constantly in the middle of their parents= fighting and scuffled with John (PC-R. 2199). Kevin had to pull John off his mother during violent encounters. Id. Ruby confirmed to Dr. Sultan that both Brian and John had been physically and mentally abusive to her and the children (PC-R. 2463).

Eventually, Brian Burns moved to Florida and into their house while Ruby was still married and living with John (PC-R.

2202). Kevin was 15 or 16. Id. Kevin began escaping with his friends. He started smoking and acting rebellious (PC-R. 2202-

03). Kelly felt he was Alost.@ Id.

Around this time, their friend, Cody Voorhees, became ill with leukemia (PC-R. 2202-03). Kevin=s girlfriend broke up with him and left him extremely depressed (PC-R. 2455). One day,

Kelly heard what sounded like glass shattering. Kevin opened the door holding his side and told Kelly he had shot himself. She didn=t know if he was trying to commit suicide, but while Kevin was in the hospital, Cody Voorhies died (PC-R. 2202-06). His death devastated Kevin (PC-R. 2205-06). 17 After that, Kevin Apushed the boundaries of what he should

be doing.@ Id. Shortly after his release from the hospital, he jumped off a bridge and suffered a serious staph infection sending him back to the hospital (PC-R. 2208). Kevin denied trying to commit suicide so often to Dr.Sultan she believed he was intentionally trying to harm himself (PC-R. 2454-55). At this time, Ruby and John continued their violent break-up. One time, Ruby was in the bathtub and John attacked her to the extent Kevin had to physically pull John off of her. Id.

Throughout his life, Kevin was accident prone and hyper

(PC-R. 2210; 2213). He was clumsy and fell often (PC-R. 2212).

When Kevin was 5 or 6, Kelly accidently whacked him in the head with a baseball bat causing a concussion (PC-R. 2211). In Texas,

Kevin was playing on a mud scrapper when he fell back and hit his head on a rock. The bottom of his skull opened (PC-R. 2211).

Kevin and his cousin, Candy Albritton-Green fell when they jumped off a cliff (PC-R. 2315, 2318). He was constantly having accidents and getting stitches (PC-R. 2211; 2318). Like Kelly,

Kevin would become depressed (PC-R. 2213).

Candy Albritton-Green recalled growing up with Kevin and

Kelly in Texas. She found it odd that Ruby was married to John, but Brian seemed more like a father (PC-R. 2311-12). Ruby was there, but wasn=t watching what her kids were doing. Id. Most of the time, Kelly was in charge and acted like a mother. If Candy 18 and Kevin were doing something wrong, they would get in trouble

from Kelly (PC-R. 2314).

It was the same in Florida. Ruby was married to John but

Brian was still living in the house. Kelly was in charge and

Kevin did whatever he wanted while Ruby worked in the pawn shop.

Kevin was Ahyper, wild.@ (PC-R. 2316).

Dr. Sultan learned from test scores in Texas and Florida

that Kevin was verbally competent and learned to read well (PC-

R. 2451). But, he had motor difficulties. His non-verbal skills

were deficient relative to his verbal skills. Id. His grades

were good until the fifth grade, when he had to repeat a grade.

School records show his name as Kevin Don Bates, Kevin Don Burns

and Kevin Don Foster. In 1989, Kevin was adopted by John Foster

(PC-R. 3000-3315).

His grades plummeted before he shot himself in the abdomen

in 10th grade. Despite Kevin=s high IQ scores, there were some learning difficulties or possibly brain problems that were Ared

flags@ for neurological testing (PC-R. 2452).

By Kevin=s first year at Riverdale High School in 1993, his

grade point average was 1.91 in 9th grade. In 10th grade,

Kevin’s grades dropped to 1.28 grade point average. On March 6,

1994, Kevin shot himself in his abdomen. Lee County Hospital

records showed he Adenied this was done on purpose.@ (PC-R. 3000-

3154). However, the records also show the entry wound had 19 Amultiple powder burns.@ Id. The police and the mental health

experts all believed it was a suicide attempt. (PC-R. 2335). In

the Riverdale High yearbook, Kevin=s friends wrote that he should

try not to kill himself over the summer. The entries also

referred to Julie, the girl who broke up with him. Kevin=s

friends knew he was very depressed and they tried to give him

hope for the future (PC-R. 2457). During Kevin=s hospital stay, his close friend Cody Voorhies died.

Three days after Kevin was released from the hospital, he jumped off a bridge into Caloosahatchie River and got a staph infection in his gunshot wound. Kevin had missed 53 days of school and was flunking out. He dropped out of school and took a

GED passing it on the first try (PC-R. 3000-3315).

Kevin got a job in Bunting Construction, but still lived at home. His paychecks were still being endorsed by his mother (PC-

R. 2961-2999). He was still accident prone. Besides shooting himself, he stabbed himself at work, cut off the end of his finger with a saw, nailed his fingers together with a nail gun, had a 1" square of glass in his foot, and was hit in the head with a metal door (PC-R. 388). Because of traffic tickets, Kevin was being driven around by his mother. Though Kevin still lived at home, he was without supervision.

Dr. Sultan found there had been physical and mental abuse in Kevin=s background. His mother had been neglectful and over- 20 nurturing at the same time which showed how erratic emotionally

Ruby was (PC-R. 2470). Both children suffered significant depression (PC-R. 2471). Dr. Sultan believed Kevin=s reaction to the emotional instability in his life and of his mother were important in his development. (PC-R. 2472). Despite Kevin=s statements that he did not care that his biological father had abandoned him, Dr. Sultan felt it was important in his development. His mother=s mental illness also was important (PC-

R. 2473). Dr. Sultan was concerned with Kevin=s developmental delays and the overly dependent relationship with his mother.

Kevin had a great deal of anger towards his mother because she saw him as the perfect son. Id.

Kevin suffers from a mental illness, according to Dr.

Sultan (PC-R. 2474). There are periods where he is grandiose and quite expansive about his superiority, and then has manic episodes. During episodes where he=s extremely agitated, Kevin is extremely labile and views himself as his mother views him.

There are other periods where Kevin seems depressed, sleeps a lot, doesn=t want do anything and thinks often of suicide (PC-R.

2475). Kevin has had periods of each extreme since his childhood. Id. Kelly also believed her mother was mentally ill and that she and Kevin suffer from mental illness (PC-R. 2461).

In her adult life, Kelly struggles to maintain a job and have relationships. Id. 21 Kevin was in the midst of a severe manic episode in the weeks leading up to the crime. (PC-R. 2475-76). Before that time, he had no criminal history and had no history of violence toward others. Listening to him talk about the events leading up to the crime, Dr. Sultan opined that Kevin was showing signs of a bi-polar episode. Id. The Lee County Corrections Bureau

Confinement Log showed that during the first five days after his arrest, Kevin did not leave his cell. He didn=t bathe or change his sheets. (PC-R. 2455-56). He did not respond to any external stimulation. Id.

Dr. Sultan diagnosed Mr. Foster with bi-polar I disorder.

She saw periods of his life where he experienced manic episodes

(PC-R. 2477). She concluded that Kevin was developmentally young at the time of the crime. Id.

Kevin was never diagnosed with conduct disorder as a child, and there was nothing from his childhood to support an antisocial personality disorder (PC-R. 2480). Any neuropsychological testing would not rule out a bipolar diagnosis (PC-R. 2479). In her opinion, Kevin=s brain at age 18 was underdeveloped with respect to decision making and impulse control (PC-R. 2483). Kevin was under the influence of a serious mental illness and potentially an organic disability at the time of the offense. Id.

22 Neuropsychologist Ernest Bordini conducted

neuropsychological testing of Kevin in 2006 (PC-R. 2326). It

took two full days to complete (PC-R. 2327-28). Dr. Bordini

found that because Kevin experienced anoxia at birth, frontal

lobe deficits were to be expected, but he was surprised to see

such poor results on the Wisconsin Card Sort test from someone

with Kevin=s IQ (PC-R. 2341). Kevin=s verbal IQ tested at 137, but had a 105 on nonverbal IQ. Only one in 200 people have such a large difference, which is an indication of right versus left hemisphere dysfunction even in people with higher IQ scores, such a rare difference is a red flag that may impact Kevin=s

behavior (PC-R. 2347-48). School records support that Kevin=s

performance was very inconsistent. Id.

Dr. Bordini concluded that Kevin has executive functioning

frontal lobe deficits as well as mild memory deficits and some

patterns of right hemisphere difficulties (PC-R. 2359). The

frontal lobes shift gears and regulate behavior and emotions,

which is significant for social and occupational functioning.

(PC-R. 2353-54). Frontal lobe impairment deals with judgment.

Id.

Dr. Bordini attributed the deficits to a combination of

anoxia/hypoxic encephalopathy. He said that Kevin=s history of

recurrent depression may indicate bipolar disorder. In terms of

the nonverbal learning disorder, Kevin has patterns that Dr. 23 Bordini felt could have created academic impairment. (PC-R.

2360). The Adramatic stuff is really the executive functioning difficulties.@ These would translate into emotional maturity problems. Id.

Dr. Bordini believed that had Kevin been thoroughly tested at the time of the incident, his frontal lobe impairment would have been even worse. (PC-R. 2356-2357). Dr. Bordini=s primary diagnosis was chronic anoxia /hypoxic encephalopathy, and major depression recurrent with a possible non-verbal learning disorder. Based upon Kevin=s history, he also diagnosed personality disorder and possible anti-social personality disorder. (PC-R. 2362-63).

Dr. Ruben Gur, a neurologist and professor at the

University of Pennsylvania School of Medicine, is an expert in brain imaging and neuropsychology who produced a behavioral map based on Dr. Bordini=s neuropsychological test raw data (PC-R.

2525-32). He verified the scoring and entered it into an algorithm which he developed with other scientists to illustrate the parts of the brain that are implicated by the pattern of neuropsychological deficits (PC-R. 2533; 2902 State=s Ex. 4). Dr.

Gur showed the importance of myelin to the development of the brain (PC-R. 2539-40). Fat tissue called myelin=s purpose is to insulate the axon and facilitate one part of the brain communicating information to another (PC-R. 2541). Different 24 parts of the brain myelinate at different rates (PC-R. 2553).

The parts of the brain that deal with movement myelinate first, then parts related to thinking, reasoning, calculation, memory, the cortical area, and the very last to develop are the frontal lobes. Id.

With MRIs, it is now possible to get an image of the working capacity, health and development of the brain (PC-R.

2254-55). Dr. Gur requested an MRI for Mr. Foster and counsel made a motion to the trial court for an MRI testing, which was initially granted (PC-R. 1576-79). However, the Florida

Department of Corrections (DOC), refused to transport or allow

MRI testing to be done at its facility, despite Mr. Foster=s offer to pay for the testing and his own expert to administer the testing (PC-R. 1590-98; 1599-1606). As a result, Mr. Foster was prevented from obtaining an MRI.

Dr. Gur explained that white matter (myelination) is non- existent in a baby and it begins to form in the middle of the brain, which is the sensory motor area by six months (PC-R.

2255). A 13 year old has myelination in the limbic areas, yet still has not reached full development of the frontal lobe. Id.

AThis is why you can have teenagers [who] can be very smartYthey can make our TV and VCRs work when we fail, but then they do something that leaves adults aghast.@ (PC-R. 2255-56). Scientists believe white matter continues to expand in an adolescent=s brain 25 up to the age of 21 or 22 when it flattens (PC-R. 2257).

In Mr. Foster=s case, Dr. Gur received raw data from Dr.

Bordini=s neuropsychological testing. Dr. Gur first noted that one problem with diagnosing brain damage in someone like Kevin is that he is very smart, thus easily overlooked. (PC-R. 2561).

However, his performance IQ is only average and called into question the issue of brain damage (PC-R. 2562). In a normal person you will not find functions that are different by more than one standard deviation. Id. When you look at Kevin=s testing with respect to the (Wisconsin) card sorting test and see he is scoring two standard deviations below average, it is a very strong indication of brain damage. (PC-R. 2563). The fact that

Mr. Foster could not change sets of principles within the test is a classic sign of frontal lobe damage (PC-R. 2564). When making decisions and considering the context of his actions, he=s impaired. (PC-R. 2565).

Dr. Gur entered the test results into the neuro-imaging algorithm and produced an image consistent with this opinion and

Dr. Bordini=s raw data. Id. It showed frontal lobe damage worse on the left side than on the right. (PC-R. 2567). It showed damage in the parietal area, the area responsible for working memory on the right side. Id. It also showed damage to the parietal area on the left. Id. The image looked as if Kevin was hit from the back and the brain had gone forward, crashing 26 against the orbital bones of the face. Id.

Dr. Gur concluded that Kevin=s brain was not yet mature at the time of the crime. (PC-R. 2570). He said Kevin had executive functioning impairment. (PC-R. 2571). Kevin suffered from perceptual organization impairment and bilateral frontal and parietal dysfunction. Id. Dr. Gur testified that the science of his behavioral imaging is relied upon generally by members of his field and that the information upon which he based his testimony was available at the time of Kevin=s trial in 1998.

(PC-R. 2571-72).

Dr. Thomas Hyde is a medical doctor and neurologist (PC-R.

2723). He conducted a physical neurological exam on Mr. Foster which took 1.5 to 2 hours (PC-R. 2730). He looked at the cranial nerves through a motor examination concerning strength, coordination, and reflexes. He examined Mr. Foster=s gait and balance and a sensory examination of the upper and lower extremities and a limited physical examination looking for anomalies of the head (PC-R. 2731).

Kevin=s cranial nerve examination was notable for his facial asymmetry, which is fairly dramatic (PC-R. 2732). Kevin had a finding of poor complex motor sequency in his hands. Both of these are Asubtle findings.@ Id. Kevin=s physical evaluation was notable for high average feet, facial asymmetry, and his right leg was slightly longer than his left. When he lifts weights or 27 exercises his left side, it never achieves the bulk of his right side (PC-R. 2733). The subtle findings were also found in complex motor sequence in the hands. Subtle findings are a term of art, and should not be confused with a lack of importance

(PC-R. 2734). Subtle findings show significant brain damage or brain disease. Id. Non-subtle findings are more dramatic like the loss of use of limbs due to stroke or some other illness.

Dr. Hyde=s findings indicate right hemisphere dysfunction.

(PC-R. 2734). This is important in understanding whether there are any neurological factors that might influence Kevin=s behavior and consequently might play a role in any criminal activity. Id. He found the birth records important (PC-R. 2735).

At birth, Kevin=s Apgar scores were normal --nine out of 10, but then dropped to one of 10 five minutes after birth. Kevin went into respiratory arrest and had to have an endotracheal tube placed in him. This meant that there were developmental issues at birth. Kevin was reluctant to breast feed shortly after birth, which is common among babies with developmental brain dysfunction. (PC-R. 2736).

Kevin was a relatively normal student until middle school when he had to repeat fifth grade. This may have been due to psychological factors and turmoil in the home. Id. He developed a significant mood disorder in his teenage years with episodes of both depression and hypomania and probably a mania itself. 28 Id. These conclusions were primarily from Mr. Foster=s self report, which is the industry standard, and supporting documentation of acute depression immediately following the offense (PC-R. 2737). Detention logs show that following his arrest, Kevin isolated himself, was not showering, not changing the linens in his jail cell, and not participating in recreation. These were consistent with his accounts of suffering a severe crash or depressive state that followed his arrest.

(PC-R. 3397-3475; Def. Ex K, pg. 1). This was important in the context of the hypomanic symptoms that were reported in the days leading up to the crime. Id.

Kevin=s issues were the result of developmental and/or genetic factors. Id. Dr. Hyde said the multitude of minor closed head injuries Kevin reportedly suffered could either be a reflection of impulsive behavior, or that he is clumsy due to motor skill problems (PC-R. 2739). Ruby Foster told Dr. Hyde that she began labor 12 weeks before Kevin was born, but took medication to stop the premature labor. (PC-R. 2740).

Individuals with premature labor are more likely to give birth to individuals who have some developmental anomalies. Id.

The gunshot wound was important because it raised red flags that there may be an underlying mood disorder when adolescents come from a tumultuous family background. Id. This incident occurred during a time of great upheaval in Kevin=s home and 29 personal life. Id. In Dr. Hyde’s experience with gunshot wounds in adolescents, it=s typically an extremity that is wounded, not the abdomen. (PC-R. 2741). In someone with a tumultuous psychosocial history, a gunshot wound bears investigating beyond the self report. (PC-R. 2741-42).

Individuals with brain damage are more prone to have mood disorders. Id. Individuals with developmental brain disorders are more prone to mood disorders as are individuals who have a psychosocial history. There is a history of developmental brain dysfunction in this case. Kevin has some degree of right hemisphere dysfunction, which increases his ability to develop a mood disorder. (PC-R. 2742-43). He also has a family history of mood disorders on his mother=s side of the family. When going through the list of symptoms in the DSM-IV diagnostic criteria,

Dr. Hyde was not surprised that Kevin met the criteria for a mood disorder, most likely bipolar disorder. Id. Kevin denied psychotic symptoms or evidence of a clear-cut psychotic disorder such as schizophrenia. (PC-R. 2744). A bipolar diagnosis would not be inconsistent with a narcissistic personality finding. Id.

It is not uncommon to see both in the same person.

The discrepancy between Kevin=s verbal and nonverbal IQ scores is notable (PC-R. 2745). Anytime a verbal score is 20 points above the nonverbal, that is usually an indication of right hemispheric dysfunction (PC-R. 2746). However, IQ scores 30 should not be used alone to render a diagnosis. There is a need for collateral data and for a neurologist to perform their own testing. (PC-R. 2747). It is important to personally see the person before diagnosis. Id.

Had he been retained at trial, he would have told trial counsel about these issues (PC-R. 2749). There were mitigating factors of brain dysfunction and psychiatric disease that could have been used in mitigation. Id. Had he been contacted at trial, Dr. Hyde would have been available to provide these same opinions. Id.

Facts Relevant to Ineffective Assistance of Counsel

In 1996, Marquin Rinard worked at the Lee County Public

Defender=s Office on Kevin Foster=s case. He=d tried 10-15 capital cases to a verdict (PC-R. 2230). In 1996, he split his time between supervising the child victim crimes unit and the capital unit. He was recruited to the case a month after Kevin=s May,

1996 arrest. Robert Jacobs was lead attorney and Rinard was brought in as second chair. His duties were whatever Jacobs assigned to him at the time. The Foster case was a very high profile for the area. The defense filed 17 amended motions for change of venue because of prejudicial pre-trial publicity (PC-

R. 2233).

Both Kevin and his family cooperated with the defense (PCR.

2234). No one investigator was assigned to the case or 31 responsible from start to finish. He would have preferred to have one investigator on the case start to finish (PC-R. 2235).

Rinard considered himself a Aglorified sounding board.@ (PC-

R. 2237). Jacobs took responsibility for both guilt and penalty phases. Id. Rinard prepared the codefendants= cross examination, sat in on meetings, and covered depositions. A mitigation specialist was not used or hired. Id. Instead, the public defender=s office hired James Wooten, a convict right out of prison, to be in charge of taking the information that came into the office and put it in the Trial Scout program. (PC-R. 2236).

Wooten was not a trained investigator. Id

Rinard had a general idea what investigators were being asked to do, but he wasn=t directing their tasks. (PC-R. 2238).

Depositions were taken in Texas, but he was not responsible for them. He covered depositions in Mississippi. During depositions, he provided support to the witnesses, instructed them on how to answer questions, what not to do, but didn=t recall meeting the deponents beforehand. (PC-R. 2239).

Before the evidentiary hearing, Rinard was given access to the trial attorney file and recalled that Dr. Wald had been retained almost immediately upon Kevin=s arrest (PC-R. 2240). The doctor met Kevin in May 1996 and on June 3, 1996, which was before Rinard came on the case (PC-R. 2243). Rinard did not have any input on the scope of the evaluations. Id. He did not see 32 any written reports (PC-R. 2244). He saw nothing that would tell him what the doctor’s meetings were for. Id. The court=s order does not specify that the evaluation was restricted to competency or sanity. Id. He did not see other files in the trial attorney file about the mental health issues or Dr. Wald.

Id. He had no independent recollection of what the doctor reported (PC-R. 2245).

It was Ahighly unlikely@ that there was any discovery available by the June 3, 1996 meeting with Dr. Wald (PC-R.

2246). Defendant’s notice of intention to participate in discovery was not filed until May 22, 1996 (R. 10). He believed that there was some discovery that had been received in the office by the later meetings (PC-R. 2247). Def Exhibit B showed that on June 24, 1996, Dr. Wald met with Mr. Foster for one hour and on June 23, 1996, he saw Kevin again for 1.5 hours. There was no other evaluation. Id. Rinard thought Jacobs obtained school records. Id.

Rinard spent 85% of his time on guilt phase (PC-R. 2249).

The other 15% was to discuss what type of information they would present at the penalty phase. Id. They wanted to humanize Kevin

(PC-R. 2250) and show a different side from the guilt phase.

Kevin was a magnet for people in need, and they thought this was important to show the jury (PC-R. 2251). Rinard had more of a legal research role (PC-R. 2252). He could not recall what 33 Jacobs said about what he was looking for as evidence to support

mitigation. They discussed age as a mitigator. Id. Rinard did not remember having any evidence to support the age of 18 mitigator (PC-R. 2254).

He could not recall whether Jacobs obtained Mr. Foster=s

medical records (PC-R. 2255). The investigator who first spoke

with Kevin did a brief social history, but it was an initial

intake interview.

The defense team held many meetings with Ruby and Kelly

Foster (PC-R. 2256). These meetings were held at least once

every two months, if not more frequently. Ruby Foster’s input

was unusual. Mrs. Foster provided information about the alibi

defense and alibi witnesses. Id. She provided information about

the inner workings of the co-defendant=s lives and families, and

people who had favorable things to say about Kevin (PC-R. 2258).

Ruby Foster was primarily responsible for putting the

defense attorneys in contact with penalty phase witnesses. (PC-

R. 2260). The lawyers did not rely on anyone other than Kevin,

Kelly, and Ruby for information about family history. Id. They

did not expect any favorable mitigation from family member

witnesses who were deposed by the State before trial. Id. Rinard

was not involved in preparing any penalty phase witnesses. (PC-

R. 2260).

Rinard recalled hearing about possible head injuries or 34 concussions that Kevin suffered, but he did not research brain injuries (PC-R. 2261). Had he had any information on any head injuries, he would have used it in mitigation. However, he was unaware of a family history of mental illness or suicide in

Kevin=s family (PC-R. 2262-63). He never spoke with State investigator Gil Allen about Kevin=s demeanor when he shot himself in the stomach. Id.

Rinard was unable to say if they investigated any physical abuse of Kevin or whether Kevin observed physical abuse of his mother (PC-R 2268). While Rinard knew the doctors had reviewed records, he was unsure of what they were. (PC-R. 2269). He did not recall seeking any expert on the issue of organic brain damage. Id.

Rinard did not see Jacobs exhibit any signs of illness at trial. Rinard believed Wootton=s relationship with the Foster family was a working relationship (PC-R. 2271). He was unaware of any other type of relationship they may have had.

Rinard believed Kevin made all the important decisions. The mitigation witnesses they spoke with provided little negative background information about the Foster family (PC-R 2275). Any attempts to discuss mental health issues with Ruby were resisted. Id.

Rinard never noticed anything to alert him that Kevin suffered from any mental health deficiencies (PC-R. 2276). It 35 was the office practice to use investigators to compile a social history of the defendant (PC-R. 2277). On the intake summary form conducted at Mr. Foster=s arrest, he denied any head injuries or family mental illnesses. However, the intake form was a starting point for the mitigation investigation. There was a likelihood of invalid responses by a client that=s why it was important to get independent information when obtaining background information on a client=s social history (PC-R. 2283).

Rinard was suspended by the Florida Bar in 2004 for 91 days by order of this Court for multiple instances of failing to communicate with clients due to personal problems. Fla. Bar v.

Rinard, Case Nos. SC00-501; SC03-721; SC05-1879; See also Fla.

Bar v. Leon Rolle, 661 So. 2d 301 (Fla. 1995). He was reinstated on June 23, 2006 with the special condition that he remain under the Florida Lawyer’s Assistance rehabilitation contract for three years. Id. At the evidentiary hearing, however, the trial court refused to allow Mr. Foster to question Rinard about whether he suffered those problems while representing Mr. Foster or to proffer the questions and answers into the record (PC-R.

2272).

Lee County Public Defender Investigator Roberta Harsh was an investigator in 1996 and did some investigation on the Foster case (PC-R. 2082-83). She also worked two or three other homicide cases at the same time (PC-R. 2084). Her duties were 36 Anothing major with the exception of driving a timeline in and reporting back to Mr. Midgely.@ Id. At that time, Jacobs was primarily responsible for the case, but he was assisted by

Marquin Rinard and Jamie Wootton. Id.

She met Wootton during his job interview and was skeptical because he was a former prison inmate. Id. Once she worked with him, she felt his work ethic and computer knowledge were phenomenal. Id. Her one assignment with him was to run a timeline of the route the co-defendants said they had driven on the night of the crime (PC-R. 2086). They drove the route, took two of them drove the route, measured the distance, and Wootton put the information into the computer. Id.

She did not do other work with him, but remembered Wootton was developing a slide presentation for penalty phase (PC-R.

2087). Wootton was the Ago-to guy on the case.@ Id. (PC-R. 2090).

She did not see Wootton again until after he was in jail in 2000

(PC-R. 2091). During the time she worked with Wootton, he was non-stop and claimed to be living on caffeine and nicotine. Id.

She did not initiate any investigation on her own and did not recall going out of state to investigate (PC-R. 2095). She was not involved in team meetings. Id. From her observations at the time of trial, Mr. Jacobs suffered tremors and had been suffering them for years (PC-R. 2091).

By the time of the evidentiary hearing, Wootton was in 37 prison for drug and robbery charges. Before he testified, the

State disclosed that he attempted to get the State to remove a

Charlotte County detainer that was lodged against him, in

exchange for favorable testimony against Mr. Foster. The

prosecutors refused his offer (PC-R. 2098).

Before working for the Lee County Public Defender=s office,

Wootton was a prisoner at Hamilton Correctional Institution on

drug and robbery charges (PC-R. 2101). When released on December

5, 1996, Public Defender Doug Midgely hired him (PC-R. 2103).

The only condition was that Wootton had to agree to random urine

testing whenever asked (PC-R. 2104). Neither Midgley nor Jacobs

ever requested he take a drug test in the four years he worked

for the office. Id. Wootton denied using drugs during Mr.

Foster=s trial, but he was fired by Jacobs in 2000 due to his

drug use. (PC-R. 2105).

Wootton became involved in Mr. Foster=s case to control

discovery, and the Foster case was the Apilot@ for the Trial

Scout program (PC-R. 2109). He began in late 1997, well after

Mr. Foster had been arrested. Wootton said the documents in Mr.

Foster=s case were Adisorganized.@ (PC-R. 2110). The only

investigative work he did was create a timeline with Ms. Harsh

to track the co-defendant=s testimony. He did not travel or do

any other investigation (PC-R. 2113).

His contact with the Foster family included sitting in on 38 meetings. He received calls from Ruby Foster attempting to get

information on the case. Id. He saw Kevin at the jail Atwo three,

four times at the most.@(PC-R. 2114). He met Kevin=s biological

father, Joe Bates, Jr. and his stepfather, for the first time at

trial.

During team meetings, Ruby Foster was an active

participant. Id. She attended 50% of the meetings (PC-R. 2115).

Every time discovery came in, multiple copies were made for Mrs.

Foster and Kevin (PC-R. 2116). The Foster family behaved different from other client=s family (PC-R. 2117). Wootton believed Ruby Foster did not Aaccept reality for what it wasY@

She believed that Kevin was framed. Id. She provided names and

information of witnesses. (PC-R. 2118). She was constantly

giving her opinion as to what she thought was right, and who the

defense should talk to and see. (PC-R. 2119). She also gave

proposed questions for witnesses. Id.

Early on, the legal team believed that Kevin was going to

be found guilty. They prepared for a penalty phase early on (PC-

R. 2122). Wooten remembered that Kevin had been taken to Naples

to be evaluated for mental health. Id. He knew this had occurred

Abecause there were notations in the boxes and this was what was

talked about in our office.@ (PC-R. 2123). The trial attorney=s

files reflect no such notations (PC-R. 1536; 1512-1513). The

doctor=s visits in 1996 occurred well before Wootton was involved 39 in the case in 1997.

When Jacobs asked about mental health issues ARuby would explode and say there is nothing wrong with my child.@ Id. Ruby insisted that they not mention mental illness in front of her.

(PC-R. 2124).

Wootton believed they had all school records and an abundance of medical records. (PC-R. 2125). No medical files, other than Kevin=s self-inflicted gunshot, were present in the trial attorney files. Jacobs decided to present the Agood kid” theory to the jury (PC-R. 2126). The people who were interviewed by the investigators to build this defense theory had all been contacted by Ruby and came to their office or to Ruby=s home.

(PC-R. 2127). Ruby Foster was in contact with Jacobs every day

Id. Wootton worked with both Jacobs and Ruby to develop a slide presentation for penalty phase to show that Kevin was a good kid with a good upbringing (PC-R. 2128). In putting this together,

Wootton went to Ruby=s house to work on it. It took about a month

(PC-R. 2129).

Rinard and Jacobs often had differences of opinion, but

Wootton saw no conflicts between them. (PC-R. 2131). At that time, Rinard was in charge of the sexual battery crimes division and was busy. Id. At trial, Wootton sat next to Kevin at the defense table and kept trial notebooks. (PC-R. 2133). No trial notebooks were found in the trial attorney=s files. He only 40 protected the family from the media one time on the day of sentencing. (PC-R. 2135). He denied falling asleep at counsel table. He did not notice Jacobs suffering from tremors during trial. (PC-R. 2140).

Wootton denied having any personal or sexual relationship with Ruby Foster during trial. (PC-R. 2142). One day in the public defender=s office, however, Wootton was working on the computer and Ruby leaned over the back of his shoulder. Jacobs observed his behavior and told him it was inappropriate. Jacobs said he hoped nothing was going on with them. (PC-R. 2142-43).

After the trial was over, Wootton continued his contact with

Ruby Foster (PC-R. 2138). Wootton was re-arrested on robbery and drug charges in 2000 and is currently serving a 15-year prison sentence.

After the post-conviction hearing, counsel learned that

Wootton had given false testimony and asked to re-open the evidentiary hearing (PC-R. 3503-3552). While the request to re- open was denied, the court allowed the written letters from

Wootton to Ruby Foster during his incarceration to be used as substantive evidence (PC-R. 3672-73). These letters from Wootton to Ruby Foster talked about their previous sexual relationship during Kevin=s trial (PC-R. 3528-3552; 3672-3673). Wooten also wrote about the poor representation Kevin received at trial from his lawyers. This information contradicted his evidentiary 41 hearing testimony (PC-R. 3517).

Facts relevant to trial counsel=s performanceCLay Witnesses

Kelly Foster was not contacted by the defense until several weeks after Kevin=s arrest. (PC-R. 2214). Jacobs asked her for character references who would say good things about Kevin. (PC-

R. 2868-2885; State=s Ex. 1). He made her feel that she had nothing worthwhile to contribute. Id. She provided everything

Jacobs asked for. (PC-R. 2214-15). Her mother did not work for almost two years after Kevin=s arrest, researching and reviewing every piece of discovery. Ruby gave suggestions to the defense team and went to Jacobs= office weekly to drop off material (PC-

R. 2216).

Kelly did not have much contact with Rinard and did not attend the case meetings. (PC-R. 2217-18). She had contact with

Wootton a few times, and he became their protector during the trial. Id. Wootton and her mother had a personal and sexual relationship. The affair ended when the trial ended. (PC-R.

2224-25).

Prosecutors deposed Kelly on February 9, 1998 (PC-R. 2221).

She was not prepped for the deposition. Id. She was only asked about guilt issues. (PC-R. 2222).

Joe Bates, Jr., Kevin=s biological father, attended the trial. No one from the defense team contacted him about mitigating evidence or explained to him what it was (PC-R. 2518, 42 2521). At trial, Mr. Bates introduced himself to Jacobs and told

him what he felt needed to be asked, but he had no other

encounter with the defense team. Id.

Linda Albritton, Kevin=s Aunt, learned that Kevin had been

arrested in spring, 1996 (PC-R. 2301). She had a few calls from

Ruby and Kelly. She attended a deposition, but did not know who

set up the meeting. Id. She was told to go to a certain place at

a certain time and give statements (PC-R. 2301-02). No one

discussed with her what mitigation was. After the deposition,

she did not speak with any attorneys (PC-R. 2302). She received

a letter in the mail that said she might be called as a witness,

but nothing ever happened (PC-R. 2302). Had she been contacted

she would have testified. Id.

Candy Albritton-Green, Kevin=s cousin, saw on TV that Kevin

had been arrested (PC-R. 2317) and did not speak with anyone

from the legal team until a couple of years later. She was

deposed, but wasn=t notified ahead of time. Id. Most of the

questions were about Kevin=s alibi and none about family history

(PC-R. 2318). After the deposition, no one from Kevin=s legal

team called her or explained what mitigation was. She would have

testified if she had been asked. Id.

Jack Bates, Sr., Kevin=s paternal grandfather, first heard

Kevin had been arrested when Ruby called Irene, his wife (PC-R.

2407). Neither Jack nor Joes Bates Jr. had any contact with the 43 defense and would have testified if asked. Id.

Ron Newberry, Kelly=s biological father, said Ruby told him that Kevin had been arrested. He gave a deposition and testified at his trial (PC-R. 2425). But, he did not remember knowing what mitigation was (PC-R. 2426).

The State=s rebuttal case consisted of three mental health experts. Dr. Robert J. Wald, a psychiatrist, had evaluated Mr.

Foster before trial, but had no independent recollection of the case or what he did for the defense (PC-R. 2631-32).

Dr. Leon D. Prockup, a neurologist, who no longer maintains an office, did not test or meet Mr. Foster (PC-R. 2585-95). He attempted to rebut Dr. Gur=s testimony (PC-R. 2591-95). He opined

Dr. Gur=s behavioral map was not up to Ascientific scrutiny@ because its last publication was in 1984. He pointed to no publication that had found his behavioral map unscientific. He did not rebut the fact that the map was based on Dr. Bordini=s neuropsychological testing results. Id. Dr. Prockup conceded he had been retained a month before the hearing and had Avery little@ information. (PC-R. 2599).

Dr. Michael Gamache did not test or see Mr. Foster (PC-R.

2657-58). He reviewed the test results of Drs. Bordini, Hyde and

Sultan and only disagreed with those experts on test results that were favorable to Mr. Foster. Gamache dismissed Mr. Foster=s oxygen deprivations at birth because it was treated, and he was 44 discharged within a few days from the hospital (PC-R. 2662). He dismissed Dr. Bordini=s neuropsychological testing that showed frontal lobe issues because there were more sensitive tests that could have been used. Id. He believed the Halsted Reitan Battery to be an old test (PC-R. 2676-77). Dr. Gamache could not cite to any authority that said the Halstead Reitan was invalid, nor did he concede that the tests would have been given in 1996-98 at the time of trial (PC- R. 2673). Dr. Gamache did not administer any tests of his own but believed Kevin was able to effectively adjust and formulate a new subgoal to eliminate the victim in this case. Id. He wasn=t aware that Mr. Foster was not the person who made the decision to Aeliminate@ the victim. It was Chris

Black. (R.1327). Gamache conceded that Afor the most part the tests that they relied on are generally accepted neuropsychological measures that have been around some time.@

(PC-R. 2709-10). The American Psychological Association and the

American Neuropsychological Association condemn rendering a diagnosis when a doctor has not evaluated a patient (PC-R. 2700-

02).

SUMMARY OF ARGUMENT

Mr. Foster was denied effective assistance of counsel at penalty phase when trial counsel abdicated its duty to Mrs.

Foster to investigate and prepare mitigation for trial. Trial counsel unreasonably failed to speak with independent sources or 45 have competent mental health evaluations conducted before formulating a defense. Trial counsel also failed to control the ex-con/paralegal it hired to experiment with a “pilot” program on Mr. Foster’s case when he unethically had a sexual relationship with the client’s mother during trial. As a result,

Mr. Foster’s jury had no concept of what Mr. Foster’s life was really like. No individualized sentencing can occur under these circumstances.

The trial court erred in summarily denying all but one of

Mr. Foster’s claims in a death penalty case without taking the claims as true, without any analysis, and without attaching records that refute those claims. Mr. Foster is entitled to an evidentiary hearing on his claims.

ARGUMENT I

MR. FOSTER WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL AT THE PENALTY PHASE OF TRIAL.

Trial counsel=s performance at penalty phase was constitutionally ineffective, as measured under Strickland v.

Washington, 466 U.S. 668 (1984), because counsel unreasonably failed to investigate and present available mitigating evidence about Mr. Foster=s background. Had he done so, the sentence would have been different. Johnson v. Sec=y DOC, 643 F. 3d 907,928-29

(11th Cir. 2011). Under Strickland, Mr. Foster must make two showings. First, counsel=s performance must be deficient, which 46 means it fell below an objective standard of reasonableness and was outside the wide range of professionally competent assistance. Id. At 688, 690; cf. Chandler v. U.S., 218 F. 3d

1305, 1315 (11th Cir. 2000)(to overcome reasonableness presumption must show that no competent counsel would have taken the action that his counsel took). Second, Mr. Foster must show that but for counsel=s deficient performance, there was a reasonable probability that the result of the proceeding would have been differentCthat is, confidence in the outcome is undermined by counsel=s deficient performance. Strickland, 466

U.S. at 694. AOur principal concern . . . is not whether counsel should have presented [mitigating evidence]. Instead, we focus on whether the investigation supporting counsel=s decision not to introduce mitigating evidence of [the defendant=s] background was itself reasonable.@ Wiggins v. Smith, 539 U.S. 510, 523 (2003).

The United States Supreme Court also held that A[s]trategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable, professional judgments support the limitations on investigation.@ Strickland,

466 U.S. at 690-91.

In approving defense counsel=s conduct as competent, the trial court ignored the United States Supreme Court=s analysis in

Wiggins v. Smith, and its strict emphasis on counsel=s obligation to investigate and prepare. Instead, the trial court concluded 47 that the ADefendant and Mr. Jacobs made the decisions regarding the [penalty phase] case and that Mrs. Foster merely provided contact information for possible penalty phase witnessesY@ (PC-R.

3674-4004). Wiggins v. Smith, 539 U.S. 510, 521 (2003).

Competent and substantial evidence does not support this conclusion.

a. Trial Counsel=s limitation of investigation to Mrs. Foster and their 18-year-old client was unreasonable.

Trial counsel unreasonably abdicated their mitigation investigation to whatever Mrs. Foster, and by extension, Mr.

Foster, an 18-year-old, wanted them to know and present. Mr.

Foster was not a sophisticated defendant. He cooperated with counsel and had no previous experience in criminal court. His only prior legal problems had been traffic tickets. Likewise, his mother had no experience in court or with legal matters. She had no training on legal issues, but counsel presented only what she gave them. The entire penalty phase was presented as Mrs.

Foster=s version of Kevin=s life. Counsel did not question whether her version was, in fact, true.

Because lead counsel Robert Jacobs died before the evidentiary hearing, the trial court relied on co-counsel

Marquin Rinard=s recollection of defense preparation. He said Mr.

Jacobs was responsible for both phases of trial. The defense spent 85% of its time on guilt phase and 15% of its time on

48 penalty phase (PC-R. 184-85). Of that 15%, they spent it

discussing what information Jacobs would be presenting. By July,

1996, he chose a Agood kid@ defense. The defense intended to

present Mr. Foster=s age, 18, as a statutory mitigating factor,

but Rinard did not recall what evidence Jacobs wanted to use to

prove it (PC-R. 187). Rinard did not know what investigation had

been done in mitigation. Id.

The trial court relied heavily on convicted felon, Jamie

Wootton’s testimony to deny post-conviction relief. Wootton,

however, did not review any files before testifying and his

memory was not consistent with those records. Mr. Foster

proffered the Trial Scout program in which Wootton said he

placed Aeverything@ the defense had on the case (PC-R.4005-4205).

Nothing in that program indicated any mitigation investigation had been done. No mental health mitigating evidence, evaluation notes, investigator notes were revealed concerning trial psychiatrist Wald=s evaluation.

In post-conviction, prosecutors sought inter-office communication or files about mental health mitigation between the defense and Dr. Wald (PC-R. 1536). Neither the State nor undersigned counsel could find evidence that any investigation had been done of mental health mitigation other than Dr. Wald=s

invoice for what appears to be a competency/sanity evaluation

done shortly after Mr. Foster’s arrest. 49 The defense spent its 15% on penalty phase preparation with

Mrs. Foster (PC-R. 191-92). The defense relied exclusively on

Mrs. Foster to provide the penalty phase witnesses, and she only

provided witnesses who would support an alibi defense or say

favorable things about her son (PC-R. 193). She insisted her son

had no Aweaknesses.@

At the post-conviction hearing, Kevin=s sister, Kelly

Foster, testified that Mrs. Foster did nothing for two years

after Kevin=s arrest except give suggestions to the defense. She

went to Jacobs= office weekly to drop off her work (PC-R. 150-

51). She attended team meetings in the public defender=s office

and made it clear that she did not want any information

presented that did not fit her vision of her son. The team did

not rely on anyone else for mitigation other than the client=s

self-report and his mother (PC-R. 195). Cooper v. Secy Fla Dept.

Corrections, 646 F. 3d 1328, 1351 (11th Cir. 2011) citing,

Williams v. Allen, 542 F. 3d 1326, 1340 (11th Cir. 2008) (ABy

choosing to rely entirely on [the mother=s] account, trial

counsel obtained an incomplete and misleading understanding of

[the defendant=s] life history.@). Instead of conducting its own independent investigation, the defense unreasonably ended their investigation after talking only to Kevin, Dr. Wald, and Mrs.

Foster. AUnder the prevailing standards in 1984YCooper=s attorneys did not conduct an adequate background investigation 50 and unreasonably decided to end the background investigation

after only talking to Cooper, Cooper=s mother and Dr. Merin.@

Cooper v. Sec=y DOC, 646 F. 3d at 1351.

The question in Cooper and Strickland is whether trial

counsel Aconducted an adequate background investigation or

reasonably decided to end the background investigation when they

did.@ Id. Here, the defense did neither. Rinard said the defense

strategy was to Ahumanize@ Mr. Foster. However, they did little

to follow through beyond talking to Dr. Wald, Mrs. Foster and

their client. See Johnson v. Sec=y DOC, 643 F. 3d 907, 931-32

(11th Cir. 2011).

The defense relied on Mrs. Foster to hand them witness

information that was favorable to a Agood kid@ defense. Williams

v. Taylor, 529 U.S. 362, 395-98 (2000)(basing an obligation to

conduct a thorough background investigation on standards set

forth in 1980) Id. However, Mr. Foster had been far from a Agood

kid@ in the month leading up to the crime. The trial court

ignored that the jury was left with no explanation for why Mr.

Foster may have acted as he did even though the information was

readily available. Porter v. McCollum, 130 S. Ct. 447 (2009).

In its order denying relief, the trial court relied on

Wootton=s testimony, even after the judge was made aware that he

had perjured himself during the hearing about having had a

sexual relationship with Mrs. Foster (PC-R. 3674-4004). Setting 51 aside the ethics of a public defender employee sleeping with the client=s mother, Rinard=s testimony as well as the trial attorney files with the Trial Scout entries did not support Wootton=s testimony (PC-R. 1526-46). These records and files are devoid of any mitigation investigation notes or directives by defense counsel to investigators or experts. The prosecution also found nothing (PC-R. 1536).

The trial court ignored that at the evidentiary hearing

Wootton was not credible. Not only was Wootton incarcerated in prison for robbery and drug charges, he then attempted have the

State remove his Charlotte County detainer (PC-R. 2098). Not only did Wootton lie under oath about having an inappropriate sexual relationship with Mrs. Foster, but he also lied about defense team=s performance at trial. Wootton wrote:

Counsel f**ked up. It is just that simple, but will be a real bitch to set the record straight. One will have to be legally ruined in order that one get any measure of justice. And we know who that one is; remember, I was around him on a daily basisCI know the truth and you know I do. (PC-R. 3503-3527;letter dated Oct. 3, 2002).

Instead of re-opening the evidentiary hearing to allow questioning, the trial court speculated that Wootton was referring to Mrs. Foster=s 2000 conspiracy case years after her son=s trial. But Wootton could not have been referring to Mrs.

Foster=s conspiracy case in which she pled guilty (Ruby Foster v.

State, Case No. 00-CF-002609-A). First, Wootton was incarcerated

52 at the time Mrs. Foster=s case was litigated, and second, Wootton

did not work Aon a daily basis@ with her private attorney.

Wootton only worked on a daily basis with Mr. Jacobs at the

public defender=s office before he was arrested. Thus, the trial court=s speculation is inaccurate and incorrect. The defense

could have pointed that out, if the trial court had not simply

accepted Wootton=s jailhouse letter as substantive evidence and

denied a hearing (PC-R. 3528-3552; 3672-3728).

Wootton also testified that the defense did not depend on

Ruby Foster for information and that the public defender=s office

had Asharp investigators@- Awho did a lot of outreach work,@ and

Aour office did our job.@ The problem was he was lying (PC-R.

67). Wootton himself through his letter proved that he gave

false testimony. The trial attorney files and his own proffered

Trial Scout program show he was not telling the truth. There is

no evidence that a mitigation investigation was conducted

independent of Kevin and Mrs. Foster. There was no competent or

substantial evidence from Wootton that supported the trial

court=s conclusion. Jones v. Walker, 540 F. 3d 1277, 1288 n. 5

(11th Cir. 2008)(en banc)(the court is not bound to defer to

unreasonably-found facts or to the legal conclusions that flow

from them.].

The defense sent no investigators to Texas or Oklahoma to

gather mitigation from family members. A member of the defense 53 team went to Texas only to occupy a chair for the State=s

depositions of family members (PC-R. 1619-1887). Attorney John

Sullivan, who attended the depositions, had no other involvement

in the case other than attending the depositions. Id. Had the

defense gone to Oklahoma and taken the minimal step of speaking

with Kevin Foster=s biological father, Joe Bates, Jr., they would

have learned of Ruby Foster=s family history, not only the

version she wanted them to hear. Mr. Bates attended the trial

and tried to speak with Jacobs, but barely spoke with him. The

defense team only knew that Joe Bates, Jr. had left Kevin after

he was born, but they did not talk with him about the birth, the

reason he left, any family history, or the fact that he and his

parents still saw Kevin even though the marriage had ended.

Because no one spoke with Mr. Bates, no one discovered a family

history of suicide, depression, alcoholism, violence, and

paranoia on Ruby’s side of the family.

Mr. Bates was present when Kevin was born and Ruby had an

emergency C-section (PC-R. 2510). He knew that Kevin was near

death and remained at the hospital for a couple of weeks (PC-R.

2511). After that, he described Kevin as Auncontrollable@ and

Ahyperness. . .more so than I would think a normal child would

be.@ Id., (PC-R. 2515). He knew that Ruby left the kids for long periods of time. (PC-R. 2514). When Joe and his mother, Irene, tried to pick up Kevin, Brian Burns (husband #3) called the 54 police and would not let them take him. Id.

Joe knew the history of Kevin’s family. No one from the defense team contacted him about providing family history or explained to him what mitigating evidence was even though he attended the trial (PC-R. 2518, 2521). Mr. Bates had to introduce himself to the defense team.

Had trial counsel not depended solely on Mrs. Foster, trial counsel could have had independent evidence to support its mitigating factors, particularly the effects of Kevin=s anoxia at birth. The defense never requested nor received the Northwest

Texas Hospital birth records that documented that Kevin nearly died twice after his birth (PC-R. 3000-3315). They failed to gather these documents even when they were using Kevin=s difficult birth as a mitigating factor.

Without the documents or anecdotal background history, no adequate psychological work-up could be done on Mr. Foster.

Though defense counsel had Mr. Foster visit Dr. Wald shortly after he was arrested, he had no independent information on which to base a diagnosis or find mitigating evidence. No in- depth psychological testing was done of Mr. Foster in the time frames outlined in Dr. Wald=s records. Dr. Wald saw Mr. Foster for an hour on the first visit and 1.5 hours on the second visit

(PC-R. 2958-2959). Those time frames were not sufficient for any psychological testing to be done. 55 The Minnesota Multiphastic Personality Inventory (MMPI)2 consists of 567 true/false questions that must be answered. The test normally takes between an hour and ninety minutes to complete depending on the test-taker=s reading speed. Id. Dr.

Bordini testified that an initial neuropsychological interview usually takes three hours and the testing takes a minimum of a day and a half to complete (PC-R. 259). Dr. Wald was not a neuropsychologist, so no neuropsychological testing could have been done to determine if Mr. Foster suffered from the organic deficits that were discovered in post-conviction.

Nor was a neurological examination done. Dr. Wald was not a neurologist capable of giving Mr. Foster an examination like Dr.

Hyde did. Dr. Wald had no independent recollection of anything he had done on Mr. Foster=s case, one of the highest profile cases in Ft. Myers.

Trial counsel Rinard could not say what mental health investigation had been done or what Dr. Wald had found. The defense failed to establish that Mr. Foster was 18 at the time of the crime. After the close of evidence, the defense had to scramble to find something in the testimony that supported that factor. They finally referred to testimony from a neighbor

2 Minnesota Multiphasic Personality Inventory 2, 1989, revised 2001; University of Minnesota Press, James N. Butcher, PhD; Edwin McGargee, PhD.

56 friend in the penalty phase that established how old Mr. Foster

would have been. Even then, no evidence showed the significance

of Mr. Foster=s young age to his behavior at the time of the crime.

Jacobs failed to develop all available mitigation evidence about Mr. Foster=s life history before deciding his trial strategy. Blanco v. Singletary, 943 1477, 1503 (11th Cir.

1991)(counsel must investigate first and then develop strategy that is informed by actual knowledge). Investigator Harsh did not conduct any penalty phase investigation into Mr. Foster=s family members (PC-R. 29). She said that Wootton didn’t, either.

He picked out pictures to be used in the slide show to be used during penalty phase. (PC-R. 27). She didn=t notice anything that

Wootton did that was relevant to the penalty phase (PC-R.3679, citing PC-R. 21-22, 28). If Wootton was the Ago to guy,@ then it was certainly not for mitigation (PC-R. 23). Rinard confirmed that Wootton was investigating the case (PC-R. 171).

Rinard did not agree with Jacobs’ practice of using a different investigator for each particular investigative task

(PC-R. 170). Rinard preferred to have one investigator from beginning to end (PC-R. 170). No mitigation specialist was hired. Rinard=s testimony underscored that Jacobs was not using the investigators in the office to investigate mitigation in a cohesive manner. Investigator Harsh did not understand, even 57 after the trial was over, the importance of the slide show for the purpose of mitigation at Mr. Foster=s penalty phase.

Rinard=s testimony proved that they relied exclusively on

Kevin and Ruby Foster for information about family history. (PC-

R. 195). Rinard noted that AMrs. Foster did not want to engage in any discussion that showed a weakness or deficit in [Mr.

Foster].@ (PC-R. 207). As a result, the trial team Adid not engage@ in any evidence that showed a weakness or deficit in Mr.

Foster. The blinders were on early and stayed on until the end.

Counsel=s duty to investigate is not negated by the expressed desires of his client. Nor may counsel Asit idly by, thinking that investigation would be futile.@ Voyles v. Watkins, 489 F.

Supp. 901, 910 (N.D. Miss. 1980).

After the State=s depositions, Rinard said no investigation was done to get an accurate family or social history because they did not expect to get anything favorable in terms of mitigation. Id. They did not expect it because they relied solely on Kevin and his mother. They never investigated whether it was true. As a consequence, their expectations were realized.

The attorney must first evaluate the potential avenues of action and then advise the client on the merits of each. Without investigation, counsel=s evaluation and advice amounts to little more than a guess. Thompson v. Wainwright, 787 F. 2d 1447, 1451

(11th Cir. 1986); cf. Porter v. McCollum, 130 S. Ct. 447 (2009). 58 Rinard admitted his role was as a Aglorified sounding board.@ (PC-R. 172). He said the defense strategy was to humanize

Kevin Abased on the information we had.@ (PC-R. 185). They only

Ahad@ the information that was given to them and approved by Mrs.

Foster. Rompilla v. Beard, 545 U.S. 374 (2005).

Investigators did not seek out any other information independent of Mrs. Foster=s Agood kid@ witnesses. The trial court=s finding that counsel=s overreliance on Mrs. Foster was not an abdication of responsibility for penalty phase is contrary to the facts and the law. Cooper v. Sec’y, 646 F. 3d at 1351;

Wiggins v. Smith, 539 U.S. 510 (2003); Williams v. Taylor, 529

U.S. 362 (2000). Mrs. Foster=s insistence in not portraying any weakness in her son should have been a red flag to counsel that more investigation needed to be done, not less. Rompilla v.

Beard, 545 U.S. 374 (2005). No one person on the defense team was responsible for the overall mitigation investigation. Rinard was a Asounding board.@ Wootton did the guilt phase timeline and entered documents into Trial Scout. Harsh did the guilt phase timeline. No mitigation specialist was retained to obtain social or family history.

The trial court believed Rinard who said that there were no mitigation specialists being used in 1999 (PC-R. 3679). Yet, they were used in the Twentieth Judicial Circuit at the same time as Mr. Foster=s trial. Conohan v. State, Case No. 97-166-CF 59 (retained Roy Matthews; Punta Gorda trial occurred August, 1999;

Ford v. State, Case no. 97-351-CF (Roy Matthews and Laura

Blankman; Punta Gorda trial occurred March, 1999). Mitigation specialists were used routinely by public defender offices and had been mandated for years by the 1989 American Bar Association

Guidelines.

The investigation for preparation of the sentencing phase should be conducted regardless of any initial assertion by the client that mitigation is not to be offered. This investigation should comprise efforts to discover all reasonably available mitigation evidence and evidence to rebut any aggravating evidence that may be introduced by the prosecutor. See,

Guideline 11.4.1 Investigation, ABA Guidelines for Appointment and Performance of Counsel in Death Penalty Cases 1989.

It is not competent or reasonable professional judgment to

Ago with what you had@ instead of seeking out all available mitigation or at least an independent family history. See,

Johnson, 643 F. 3d 907, 931-32 (11th Cir. 2011). As noted in

Wiggins v. Smith, 539 U.S. 510 (2003), limitations on investigation are only reasonable to the extent that they are supported by reasonable professional judgment. Wiggins, 539 U.S. at 510. It was not reasonable to depend solely on an 18-year-old client and his mother for a mitigation defense. Cf. Cooper v.

Sec=y DOC, 646 F. 3d at 1351. 60 Further, the trial court=s reliance on Wootton=s testimony is misplaced because he was not credible. In the four years that

Wootton was out of prison from 1996-2000, he slept with Mrs.

Foster during trial and resumed abusing drugs. No one knew exactly when Wootton began using drugs again because Jacobs never had Wootton submit to a drug test during the four years he worked for the public defender=s office.

His post-conviction testimony vacillated from saying Mrs.

Foster provided all the contact information for character witnesses to saying that the defense did not depend on Mrs.

Foster at all and instead relied on Asharp investigators who did a lot of outreach work.@ (PC-R. 53; 67). Neither the trial

attorney file nor the proffered Trial Scout notes show that

Asharp investigators@ did anything independent of Mrs. Foster.

Wootten testified that the defense was in possession of

medical and school records but they did not see anything

significantly mitigating. Yet, the school records show that Mr.

Foster repeated fifth grade and had a significant drop off of

grades that went unexplored by the defense (PC-R. 3000-3315).

These red flags were ignored. Instead of investigating the red

flags, counsel decided to have Wootton obtain photographs from

Mrs. Foster to present in a slide show of Mr. Foster as a Agood

kid gone bad@ show for the jury. (PC-R. 61).

Contrary to the trial court=s findings, Wootton=s testimony 61 does not demonstrate that Mr. Foster and Jacobs made reasonable decisions regarding the case and that Mrs. Foster merely

Aprovid[ed] contact information for possible penalty phase witnesses, lists of what she believed were inconsistencies in the evidence, or questions she believed should be asked of witnesses.@ (PC-R. 3681).

The client or his mother=s wishes do not dictate what and how much the defense team investigates mitigation. Williams v.

Allen, 542 F. 3d at 1340(ABy choosing to rely entirely on [the mother=s] account, trial counsel obtained an incomplete and misleading understanding of [the defendant=s] life history.@).

Mrs. Foster directed the investigation into her son’s life by selecting who should be contacted. No other case Rinard participated in had such an intense involvement with a family member. Wootton was so involved with the family that he was sleeping with the client=s mother during trial. A fair reading of this record shows that Mrs. Foster influenced the direction of the defense in penalty phase and defense counsel acquiesced.

Rinard conceded and the trial court stated that Kevin

Foster, an 18 year old who had never been arrested or incarcerated before, Amade all the decisions about his case.@

(PC-R. 206). This testimony supports the claim that defense counsel abdicated its responsibility to the Fosters, not the opposite. It directly contradicts the mandate of Wiggins and the 62 1989 ABA guidelines. See Porter, supra; Cooper v. Secy Fla Dept.

Corrections, 646 F. 3d 1328, 1351 (11th Cir. 2011).

Rinard=s testimony that he did not recall specific mitigation evidence, but he was sure they discussed Kevin=s age, maturity, progress in school and work history is most telling

(PC-R. 3680). This high profile case was one of the biggest cases in Ft. Myers history, most likely of his career, provoking

17 motions to change venue. Yet, after reviewing his own trial attorney file, Rinard still Adid not recall@ specific mitigation evidence. Not surprisingly, the jury didn=t recall it either. The defense presented nothing to explain the impact on Mr. Foster of his background of chaos, four different fathers (some abusive, some just mentally off), bi-polar disorder or his frontal lobe brain damage. The jury did not hear it because trial counsel did not discover it. They defaulted to Mrs. Foster because they had failed to investigate anything else. The greater weight of the testimony introduced at the evidentiary hearing when compared to what was presented at trial shows that Mr. Foster=s attorneys were not effective in investigating or presenting mitigating evidence to the jury. The absence of any sign of independent investigation by counsel in the trial attorney file, and in particular the Trial Scout, proves Mr. Foster=s claim. Had any significant mitigating evidence been tucked in the Trial Scout program, Wootton and the prosecutors would have emphasized it. 63 The absence of this evidence and the plethora of handwritten notes and lists by Mrs. Foster contained in that same file prove this claim.

The trial court=s finding that Mr. Foster has failed to meet his burden of proof to demonstrate either prong of Strickland is not supported by the record in post-conviction. Strickland v.

Washington, 466 U.S. 668 (1984).

b. Trial counsel=s limitation of investigation without discovering Mr. Foster suffered from depression and other mental health deficits was unreasonable.

A professional reasonable mitigation investigation in Mr.

Foster=s case would have included a competent professional investigation into Mr. Foster=s mental health background. Wiggins v. Smith, 539 U.S. 510 (2003). The trial court relied on

Wootton=s testimony that mental health evaluations had been done and a decision was made that no further experts were needed.

Wootton insisted that all the information that counsel had was that Kevin came from a healthy, wholesome family (PC-R. 3684).

This testimony, however, was contradicted by Rinard who made no such sweeping statement (PC-R. 179-80). In fact, Rinard did not recall what type of evaluations were conducted or what, if anything, the experts found. Id.

Dr. Wald, who did not remember what he had done 15 years earlier in 1996, did not spend enough time according to his bill to test Mr. Foster, nor did he speak with any family members 64 other than Mrs. Foster. More importantly, the State could not

prove what, if any, evaluations were done of Mr. Foster.

It is unbelievable that Wootton, a convicted drug addict

who lied during the evidentiary hearing, should be the factual

basis for the trial court=s findings. Moreover, Wootton=s only responsibility was to input discovery, notes, and documents in the computer program. It is obvious by the State=s efforts to scour the trial attorney file and the e-mail server at the public defender=s office that there were no notes or documents in

Trial Scout about mental health mitigation or doctors=

conclusions.

The only documents which the State found on mental health

evaluations was Dr. Wald=s billing invoice listing the hours, fee

schedule, and amount of time spent meeting with individuals

conducting examinations or document review. Dr. Wald testified

that he could not help the trial judge in any way regarding what

he did in the 2.5 hours he spent with Mr. Foster (PC-R. 2958-

2959). His involvement in the case ended a few months after Mr.

Foster was arrested in July 1996. The most likely explanation

was that he conducted a cursory competency/sanity evaluation

which could be conducted with 2.5 hours. The unrebutted evidence

from Dr. Bordini was that a competent mitigation evaluation

could not have been conducted in 2.5 hours. Also, Rinard

testified that it was Ahighly unlikely@ that discovery documents 65 had been gathered on Mr. Foster=s case by July, 1996 (PC-R. 181).

More disturbing, Wootton is not a mental health expert.

Nonetheless, he testified and the trial court believed that he could Asee@ whether Kevin had mental health issues by looking at him A3 or 4 times@ in the county jail. Though Wootton=s extensive prison and cocaine experience may have put him in contact with many mentally ill individuals in lockup, this does not make him a mental health expert.

Likewise, Rinard=s testimony that he did not see any signs of depression or mental health issues in Mr. Foster is equally suspect. Rinard is not a mental health expert, either. He admitted he spent very little time with Mr. Foster at the county jail and was not even asked to assist with the case until months after Mr. Foster had been arrested (PC-R. 169). It is unclear how Rinard was going to intuit that Mr. Foster had frontal lobe damage when it is not a visible malady but a deficit in impulse control and judgment. Had Rinard looked at records of Mr.

Foster=s first week in jail, he would have seen signs of deep depression (PC-R.3397-3475). But, Rinard was not on the case until a few months after Mr. Foster=s arrest. Id.

Rinard said that Kevin denied any psychological or mental health issues for himself and his family, though he did remember

Kevin having a concussion (PC-R. 211-12). What the trial court did not cite was Rinard=s testimony that there is a likelihood of 66 invalid responses from clients who are frequently the worst sources of information about their own family history, and that he knew it was important to have independent background information for a social history, yet did nothing about it. In addition, the trial court ignored that Rinard=s contact with Mr.

Foster was very limited (PC-R. 215; 169).

Nowhere in the DSM-IV is there criteria for mental illness that the subject must Alook@ like he=s depressed, retarded or mentally ill before a diagnosis of mental deficits can be made.

Diagnostic and Statistical Manual, Fourth Edition. That is precisely why detailed and thorough histories from sources independent of the client are important when assessing mental health history and deficits.

More telling was Wootten=s testimony regarding the scope of trial counsel=s investigation into Mr. Foster=s mental health background. Wootten testified that the team received Ano negative information@ about the family from the people they contacted nor did any family member come forward. (PC-R. 3684). The problem is no one asked for any Anegative@ information nor was it the family members’ responsibility to intuit what kind of information was mitigating and provide it to the defense. See Wiggins v. Smith,

539 U.S. at 522; Williams v. Taylor, 529 U.S. 395-98; Williams v. Allen, 542 F. 3d at 1340; Johnson v. Sec=y DOC, 643 F 3d at

932. It is the defense attorney’s responsibility to seek it out. 67 Moreover, family members are not trained lawyers and have no idea what mitigation is. Testimony at the evidentiary hearing showed that no one from the defense team told them what mitigation was or what kind of information was helpful to his defense. There was no questioning of the family members by a defense investigator so it is unclear how family members could know what trial counsel needed for a mitigation defense.

No one asked questions about family history as post- conviction counsel did. No one contacted Joe Bates, Jr. even though he is Kevin=s biological father. Even when Mr. Bates, Jr. stood in front of him at trial, Jacobs did not ask a single question about what he knew of Kevin=s history.

Wootton said trial counsel Alooked for anything and everything@ that could be used for mitigation (PC-R 99-100). Yet neither Roberta Harsh, Marquin Rinard, nor Wootton were able to point to anything in the trial attorney file or Trial Scout that showed Aanything and everything@ had been done. All that Wootton=s testimony shows is that a convicted felon was attempting to cash in on his court appearance at the expense of Mr. Foster to get his Charlotte County detainer removed. Wootton=s testimony was false, incredible, and is not competent evidence on this issue.

The trial court’s order denying relief Adiscounted to irrelevance@ the mitigation testimony that chronicled the chaotic upbringing Mr. Foster endured. Ignoring Mr. Foster=s repeated 68 head injuries, his living with four different fathers in 18 years, his bi-polar disorder and his frontal lobe damage is, not only an unfair reading of the record, but does not address the impact this information could have had on the jury. See Porter v. McCollum, 130 S. Ct. 447, 455 (2009)(A[i]t is unreasonable to discount to irrelevance the evidence of a defendant=s abusive childhood.@). It is not what the trial judge believed but what the jury could have gleaned from this information. Porter v.

McCollum, 130 S. Ct. at 455; see also Light v. State, 796 So. 2d

610 (Fla. 2nd DCA 2001)(judge is not examining whether he believes the evidence presented as opposed to contradictory evidence, but whether the nature of the evidence is such that a reasonable jury may have believed it.).

The jury heard only that Mr. Foster was a privileged boy who had an idyllic childhood with every advantage complete with kittens and a trip to Europe (R. 2057-58). After hearing the testimony of the family members in post-conviction, it is not a fair reading of the record to say that this was an accurate portrayal of Mr. Foster=s life or that it would not have mattered to the jury. This is especially so in light of the fact that three people voted for life based only on Agood guy@ evidence.

This is not the law. See, Cooper v. Sec’y, 646 F. 3d at 1351.

To establish prejudice under Strickland, a defendant must show that there is a reasonable probability that, but for 69 counsel=s unprofessional errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S.

668, 694 (1984). If additional mitigating evidence would have changed the weighing process so that death is not warranted, the court is to consider the totality of the evidence by weighing the evidence presented and that which was not presented against the aggravating circumstances that were found. Hardwick v.

Crosby, 320 F. 3d 1127, 1166 (11th Cir. 2003). The court is required to ensure that a sentence be Aindividualized by focusing on the particularized characteristics of the individual.@

Armstrong v. Dugger, 833 F. 2d 1430, 1433 (11th Cir. 1987).

Background and character evidence Ais relevant because of the belief, long held by society, that defendants who commit criminal acts that are attributable to a disadvantaged backgroundYmay be less culpable than defendants who have no such excuse.@ Johnson v. Sec=y DOC, 643 F.3d at 932.

The jury only knew that Kevin had been a Agood kid@ at some point before this crime. There was no explanation for his behavior during the crime. The jury thought he had an idyllic childhood, with a mother who loved him and still believed, even after his conviction, that her son was innocent. The trial judge slammed the defense mitigation case in his order, mocking the statutory mitigator of age 18, and writing a scathing portrayal of Mr. Foster=s Agood kid@ mitigation (R. 1484). 70 The sentencing judge did not have the full story of Mr.

Foster=s bizarre upbringing, undiagnosed bipolar disorder or his frontal lobe damage. The judge specifically rejected the age mitigator because trial counsel had not shown any evidence of immaturity on Mr. Foster=s part. But evidence presented at the post-conviction hearing showed that when Mr. Foster committed the crime at age 18, he still lived at home and was barely removed from the environment of his violently abusive step- father who had attacked his mother before Kevin intervened.

Checks written on Kevin=s account showed that his mother was still signing his checks, even his payroll checks (R. 3750-

3788). Though he had dropped out of school two years earlier,

Kevin still lived at home and depended on his mother to drive him around because his license had been suspended. This is hardly the mature adult the trial judge believed him to be.

Post-conviction mental health experts showed that a male teenaged brain, such as Mr. Foster=s, was not fully developed at age 18. The frontal lobes are the last to develop myelin, which helps different parts of the brain communicate with one another

(PC-R. 469; 479; 498). Kevin=s brain had not yet matured at age

18 (PC-R. 498). The frontal lobes deal with impulse control and judgment--two things that were sorely lacking during the month leading up to this crime. This undiscovered mitigation would have supported the statutory mitigator of age 18, which the 71 sentencing judge rejected along with non-statutory mitigation

that would have changed the picture the jury had of Kevin=s

upbringing.

The evidence presented at the evidentiary hearing would

also support multiple non-statutory mitigators. Kevin nearly

died during childbirth from apoxia or lack of oxygen. He had to

be rescusitated twice in the first few days of life (PC-R. 3000-

3315). Doctors Hyde, Gur and Bordini found evidence of frontal

lobe brain damage significant to Mr. Foster=s behavior at the

time of the crime. Doctors Sultan, Hyde and Bordini found signs

of bi-polar disorder and manic depression. Though he disagreed

with the frontal lobe damage, Dr. Gamache even diagnosed Kevin

with a narcissistic personality disorder.

When the jury was told of Kevin=s Aidyllic@ life it was not an accurate picture. It is an unfair reading of the record to say that there was no evidence presented in post-conviction of how this unstable, violent, and transient life affected Kevin.

Kelly Foster described their life with Brian Burns (husband #3) who had mental issues and was violent toward their mother to the extent that Brian Atore our house apart.@ His violent outbursts

traumatized Kelly and Kevin (PC-R. 115-16).

Kelly talked about being abandoned by her mother when her

mother began dating John Foster (husband #4) and how it felt to

be constantly uprooted. She manifested the turmoil by having her 72 leg go limp, requiring treatment for emotional problems (PC-R.

127). She described their grandfather Albritton stalking their home (PR-R. 128). This is the same grandfather who told Kevin he never should have been born and should have died. She described

Kevin as Alost.@ (PC-R.148-160).

Kelly Foster was available to the defense, but she was never asked about her upbringing or had mitigating evidence explained to her. She had no idea what helpful mitigating evidence was and gave attorneys what they wanted…good character stories.

During the penalty phase, the jury heard so little it is difficult to imagine how Kevin Foster could have been

“humanized.” Porter, 130 S. Ct. at 454. The mitigation evidence presented in post-conviction proceedings Apaints a vastly different picture of his background@ than the picture painted at trial. Williams v. Allen, 542 F. 3d at 1342.

The lack of mitigation witnesses was brought to the jury=s attention during sentencing phase, which might have suggested to the jury that defense attorneys could discover nothing mitigating in his background. Blanco v. Singletary, 943 F. 2d

1477, 1505 (11th Cir. 1991). The prosecutor argued that the mitigation presented could not outweigh the shooting that occurred (R. 2057-58). Given that some jurors still Awere inclined to [show] mercy even with having been presented [so 73 little] mitigating evidence and that a great deal of mitigating evidence was available to [Foster=s] attorneys had they more thoroughly investigated,@ it is possible more jurors would have voted for life. Blanco, 943 F. 2d at 1505.

c. Mr. Foster=s Defense Team Was Disorganized, Confused and Impaired.

The trial court=s dismissal of Mr. Foster=s claim that his defense team was confused, disorganized and impaired failed to fairly consider the post-conviction evidence. Investigator

Harsh, a former police officer, watched the trial and saw Jacobs shaking and knew that he had been suffering with tremors for years (PC-R. 26). Jack Bates, Jr. testified that Jacobs appeared confused (PC-R. 447). Wootton said the files were

“disorganized.” (PC-R. 2110). Reporter Jim Greenhill wrote that the defense appeared Aconfused.@ Greenhill, Jim, Someone Has To

Die Tonight, at 380.

The trial court ignored these witnesses and relied upon

Rinard and Wootton=s testimony to deny the claim. However, they are the only two people who apparently did not notice what was going on with the defense at trial. Though the trial court acknowledges Wootton gave Acontradictory@ testimony regarding his relationship with Mrs. Foster, it found it would not have changed the outcome of the trial (PC-R. 3689), but it did affect the performance of counsel at trial. For example, counsel nearly

74 failed to provide the age of 18 statutory mitigator because they had failed to ask the proper questions of the witnesses. The trial court predicated its finding upon the fact that Rinard and

Wootton were more credible because they were “closer” to Jacobs throughout trial.@

Yet, jurors who were close to Jacobs throughout the trial noticed both tremors and confusion on the part of defense counsel and found it Aoff-putting.@ Greenhill, Jim, Someone Has

To Die Tonight at 386. These same jurors also noticed that

Wootton had trouble remaining awake while at counsel table for portions of the trial. Id at 380. Wootton denied it.

The trial court chose selective parts of Wootton=s testimony to believe. The trial court believed that Wootton may have had a sexual relationship with Mrs. Foster during trial (which was different from his hearing testimony), but disbelieved the same letter when he wrote, ACounsel f***d up.@ The trial court attempted to salvage Wootton=s credibility by finding that his sexual relationship with Mrs. Foster AY does not change the substance of the rest of his testimony regarding Defendant=s case.@ (PC-R. 3674-4004). However, it did.

The records do not support the trial court’s order denying post-conviction relief. This is not competent evidence. The trial court found that Wooten=s statements about defense counsel in his letter that A[c]ounsel f***d up@ were unclear as to what 75 case they were referencing and A[e]ven if [he] did refer to

Defendant=s trial counsel, the court found this statement less than credible.@ Id. This is curious since Wootton never worked with another attorney on a daily basis and the trial court found the previous sentence where Wootton discusses sleeping with the client=s mother to be credible. Either the letter is credible or it is not.

In the letter, Wootton refers specifically to Jacobs by telling Mrs. Foster Awe know who that one is; remember, I was around him on a daily basisCI know the truth and you know I do.@

(PC-R.3528-3552; Wootton letter dated October 3, 2002). Wootton is referring to Jacobs as he was the only attorney that Wootton was with on a daily basis and Wootton had already been arrested before Mrs. Foster=s 2000 conspiracy case was prosecuted. The fact is, Wootton knew the defense was disorganized, confused and incompetent.

d. Trial Counsel Unreasonably Failed to Obtain Mental Health Mitigation.

The purpose of expert testimony is to assist the jury in understanding what organic problems Mr. Foster suffered and any mental health mitigation that existed. Whether the trial court agreed with each doctor=s conclusions is not the issue. The issue is that trial counsel was unreasonable when he stopped pursuing any expert evaluation of Mr. Foster after cursory initial visits

76 with Dr. Wald in the first three months of the case. Defense counsel abandoned the issue before conducting any psychological testing (other than interviews), before depositions, before receiving discovery and before gathering family history evidence. Reasonably competent counsel would not have failed to gather a complete family history that included suicide, paranoia, depression and dementia. Porter v. McCollum, 130 S.

Ct. 447 (2009).

The trial court discounted Mr. Foster=s expert testimony in favor of the State=s expert, Dr. Gamache, who never spoke, tested, or set eyes upon Mr. Foster contrary to the American

Psychological and Neuropsychological Guidelines (PC-R. 626). His answer to his inappropriate conduct was that it is Apreferable@ to see the client if he is rendering a diagnosis (which he did).

Id. Gamache did nothing to arrive at his own conclusions. Yet the experts who did have independent background information and testing to support their opinions have been Adiscounted to irrelevance@ by the trial court. See Porter, 130 S. Ct. at 49.

For example, the trial court found Dr. Bordini=s conclusions

Aspeculative@ after he spent hours and days with Mr. Foster conducting interviews and objective testing but found Dr.

Gamache=s testimony credible (PC-R. 3691). The court made that finding despite the fact that Dr. Hyde, a medical doctor and neurologist, made the same findings as Dr. Bordini after his 77 physical examination of Mr. Foster. The two men had not spoken with one another or relied each other=s testing materials. Again, the trial court found Dr. Gamache=s testimony more credible when the weight of the evidence proved contrary.

The problem with Gamache=s conclusions is that they are, in fact, Aspeculative@ since he had not seen Mr. Foster to judge his demeanor, know how quickly he completed the tests, know how his reflexes reacted, or how other physical test results occurred. A doctor must see what Mr. Foster=s responses were in a neurological exam, such as the one Dr. Hyde gave, in order to judge their validity because it is a physical examination. (i.e. how his reflexes react, etc.) or conduct his own testing.

Neuropsychologist Bordini relied on his own objective testing, and his discussions and observations of Mr. Foster. The results are what the scores indicate. Dr. Bordini cannot make that up. Gamache testified that he only had a problem with part of Dr. Bordini=s neuropsychological testing, which were the ones that showed Mr. Foster had frontal lobe deficits. He did not have an issue with the rest of the tests, just the results that showed deficits. Such biased interpretations are clear indicators that Gamache wanted to reach a certain resultCthat

Mr. Foster had no impairments.

However, the objective tests showed deficits in Mr. Foster=s frontal lobe. The entire test was either valid or it was not. A 78 competent mental health professional does not pick and choose portions of the test he doesn=t like and say those portions are invalid. This is exactly what Gamache did.

The trial court misconstrued Dr. Bordini=s testimony that because Mr. Foster had a tendency to minimize his difficulties, it did not mean he could not find the deficits by testing. Dr.

Bordini realized that Mr. Foster was minimizing because of his objective testing. The trial court jumped to the conclusion that if Mr. Foster did not tell Dr. Bordini about his difficulties, then doctors could not have discovered the deficits during trial

(PC-R. 3691). That is incorrect and why the defense should have hired a neuropsychologist.

Dr. Bordini testified that Kevin was Areluctant to acknowledge faults@ and Atried to maintain a façade that everything=s okay.@ (PC-R. 267) even when to do so is detrimental to his case. This made Kevin=s responses more believable, not less. It is also why Dr. Bordini said outside sources of information that corroborate or refute other people=s perceptions of his functioning become important (PC-R. 267-68). See, Ake v.

Oklahoma, 470 U.S. 68 (1985).

The judge and jury had an inaccurate picture of Mr. Foster and his mental abilities. The post-conviction mental health testimony also supports the statutory mitigating factor of age of 18. The trial court ignored what a jury might have thought 79 had they heard from Dr. Bordini his tests were a Ared flag@ and that the difference in Kevin=s IQ scores were Astatistically significant@ in that only 1 in 200 people have a difference that large in their score. (PC-R. 279). He said the rarer the difference the more likely there will be a noticeable difference that impacts on behavior such as Ayou=re smart, but why can=t you do this or why are you underachieving or why are you having trouble with this?”(PC-R. 280). The jury was entitled to know

Mr. Foster=s true mental picture and how his frontal lobe damage and bi-polar disorder affected his behavior in the context of his upbringing. See Williams v. Taylor, 529 U.S. 362, 395-98

(2000). The jury knew none of it because trial counsel unreasonably failed to investigate mental health mitigation after its initial competency/sanity evaluations a few months after Mr. Foster=s arrest.

Further, the trial court=s finding that Dr. Sultan=s social and family history testimony was cumulative is simply wrong (PC-

R. 3692). The trial court erroneously put the onus on Mr. Foster to hand defense counsel the information Dr. Sultan discovered.

That is not the law. Williams v. Allen, 542 F. 3d at 1340. Trial counsel never asked anyone other than Mr. Foster and his mother about family history. It was incumbent upon counsel to send investigators to speak with family regardless of what the client or his mother wanted the attorneys to do. The law on this matter 80 has been clear since 1976. To achieve the objective of an

Aindividualized sentencing@ trial counsel has to develop and present a detailed picture of the defendant=s background,

character and life experiences to the jury. Woodson v. North

Carolina, 428 U.S. 280, 304 (1976). This does not mean skipping

contact with Kevin=s biological father.

Dr. Sultan=s task was to gather an accurate social and

family history. She spent years interviewing family members and

getting to know Kevin Foster, whom she met in 2002 (PC-R. 370).

Dr. Sultan was the first expert to see Mr. Foster and take the

time to establish a rapport with him and the first to recognize

that neuropsychological testing was necessary (PC-R. 372-74).

Dr. Wald could not have done that in the 2.5 hours he spent with

Mr. Foster. (PC-R. Def. Ex. B).

Dr. Sultan spoke with people who did not testify at trial

and thus, could not have been Acumulative@ to the people who

testified in post-conviction--such as Ruby Foster, Brian Burns,

Pauline Logsdon, Ruth Goodson, and Irene Bates (PC-R. 386-87).

Dr. Sultan relied on background materials that trial counsel

failed to gather, such as Northwest Texas Hospital Records, and

Lee County Confinement logs (PC-R. 383-84). She read Mr. Foster=s school records, yearbook entries, medical records, Lee County

Sheriff=s reports and sentencing transcripts (PC-R. 376-78). Dr.

Sultan did not rely only on information Afrom persons who have a 81 bias in favor of the Defendant@ unless the Lee County Sheriff=s

Office, the court records and doctors from Lee County Memorial

Hospital and Northwest Texas Hospital are Abiased@ in favor of

Mr. Foster. Cf.(PC-R. 3691-92). Moreover, mitigating evidence by definition is evidence Abiased@ in favor of the defendant. That is what makes it mitigating.

In reality, no other professional took the time to develop independent sources of information Dr. Sultan gathered. Even if the court disregarded her conclusions or diagnoses, she still could have offered the jury an accurate and complete family history that trial counsel never knew existed.

Dr. Sultan found a family history of mental health issues.

She learned that on Mr. Foster=s maternal side of the family that a great grandfather suffered from paranoia and was mentally ill.

Kevin=s grandfather suffered from paranoia, uncontrollable temper and violence. His grandmother suffered from dementia. Of Mr.

Foster=s aunts and uncles, one committed suicide, three suffer from depression, one is an alcoholic, and two were in abusive relationships. Dr. Sultan found that Mrs. Foster suffers from depression and bipolar disorder.

On Mr. Foster=s biological father=s side of the family, there is a history of anger. Because trial counsel did not independently investigate, none of this family history reached the jury. It was not cumulative to anything that was presented 82 at trial as is evident by this Court=s direct appeal opinion.

Foster v. State, 778 So. 2d 906 (Fla. 2000).

Dr. Sultan=s examination was careful and thorough as required by Ake v. Oklahoma, 470 U.S. 68 (1985). Instead of

evaluating Dr. Sultan=s conclusions on their merits, the trial

court cited to the nature of Mr. Foster=s crime as its basis for

Adiscounting@ her testimony (PC-R. 3713). Yet, that is not the proper standard to evaluate a mitigating evidence claim. See

Porter v. McCollum, 130 S. Ct. 447, 455 (2009)(A[i]t is

unreasonable to discount to irrelevance the evidence of a

defendant=s abusive childhood.@).

The trial court also minimized neurologist, Dr. Thomas

Hyde=s findings as insignificant because they are Asubtle

findings@ and that he had a Abias@ against the death penalty that

Amay@ have influenced his opinion (PC-R. 3695). Dr. Hyde=s

credentials are impeccable. He is a medical doctor, formerly the

Director of the Clinical Brain Disorders Branch of the National

Institute of Mental Health in Washington D.C., a clinical

instructor in the Department of Neurology at George Washington

University Hospital in Washington D.C., and now the head of the

Lieber Institute (PC-R. 4518-4536). The trial court speculated

that Dr. Hyde set aside all his professional objectivity for

Kevin Foster based on not one scintilla of evidence from the

evidentiary hearing. 83 The subtle findings were not insignificant but could be

Areferable to significant brain damage or disease.@ (PC-R. 2734).

By Anot subtle findings@ he meant not dramatic like someone who had a stroke and was paralyzed. Id. He said significant, but subtle findings are not something that can be observed by the casual observer or even a general practitioner, but these findings are discovered only by detailed physical examination done by a neurologist (PC-R. 2733). Dr. Wald is not a neurologist and could not have done this evaluation. Dr. Gamache is not a neurologist and he did not even see Mr. Foster, no less conduct a physical examination.

Thus, Dr. Hyde was not, and the State did not prove, that he was creating his conclusion that Mr. Foster had genetic factors that resulted in Adevelopmental damage of the right hemisphere@ out of thin air (PC-R. 2738). Subtle indications do not mean insignificant (PC-R. 2734) and his conclusions were consistent with the neuropsychological test results and Dr.

Sultan=s social history. Each doctor focused on a different aspect of Mr. Foster=s mental health, they did not duplicate one another and each found impairments that affected Mr. Foster=s behavior at the time of the crime.

The records Dr. Hyde reviewed from the Northwest Texas

Hospital and other background materials supported his conclusions. To dismiss Dr. Hyde=s conclusions entirely based on 84 a speculative bias that the State did not prove is an unfair reading of the record.

Dr. Gamache=s fictional opinion was based on no spoken word, physical examination, evaluation of demeanor, or observation of how quickly Mr. Foster completed tests. He knew nothing about

Mr. Foster. Yet, the trial court made no mention of that flaw in

Gamache=s testimony.

Moreover, Gamache=s objection to Dr. Bordini=s testing on the

Wisconsin Card Test which showed frontal lobe damage was also fiction. Gamache claimed the test was invalid because Bordini used fewer cards than Gamache prefers. What Gamache failed to explain is that there are several versions of the test, some involving only 64 cards called Wisconsin Card Sorting Test

(AWCST-64@) 64 card version.3

Likewise, Gamache=s rebuttal that Mr. Foster was able to change his mental state by vandalizing the school gym, then deciding to eliminate the victim, meant he could not have frontal lobe deficits is hogwash (PC-R. 3697). This crime did not occur in a vacuum. Mr. Foster was one of a group of boys who carried out this crime. In fact, it was not Mr. Foster who

3 www.parinc.com/Products/WCST-64; cf. Computerized Wiconsin Card Sorting Test: Comparison with Manual Admininstration, J. Med. Sci: 12: 479, 480 (1996), Tien, Spevack, Jones, Pearlson, Schlaepfer and Strauss (Aa configuration option allows selection of different end points for the test i.e. after achieving 6 categories or after completing 32, 64 or 128 cards@).

85 formulated the idea to kill the victim. Chris Black testified that it was his idea (R. 1327). Gamache knew even less about the circumstances of the crime than he did about Mr. Foster.

Ultimately, the trial court=s conclusion that trial counsel was Areasonable@ for not seeking out the social history evidence, giving its expert background material, hiring a neuropsychologist or interviewing family members is contrary to the law (PC-R. 3700). No tactic or strategy can be reasonable when counsel did not seek out all of the information on his client. Wiggins v. Smith, 539 U.S. 510 (2003). The law is clear that trial counsel had to know what mitigating evidence exists before it can decide to ignore it. Trial counsel=s fatal flaw here is that they depended exclusively on their Mr. Foster and his mother to do the mitigation investigation. The 1989 ABA guidelines condemned the notion that it was the defendant=s responsibility to hand over mitigation evidence to defense counsel, it is their duty to seek it out. Cf. Williams v. Allen,

542 F. 3d at 1340.

Contrary to law, the trial court conducted no cumulative analysis on how the jury would have been affected by this new evidence. See Porter. Even if the trial court disregarded all of the expert testimony and relied solely on the new information about Mr. Foster=s family history and upbringing, it could not say that Mr. Foster=s jury had an accurate and complete picture 86 of his life. Mr. Foster was not a child of advantage. He did not have an idyllic upbringing. He lived in a chaotic, violent environment with a revolving door of fathers. He suffered from depression, abandonment, and frontal lobe deficits that affected his impulse control and judgment.

There can be no reasonable tactic or strategy for not using these documents when they were in their own file, and the defense offered this mitigator of their own volition. The trial court refused to give these mitigators any weight because of trial counsel=s omissions. This is the definition of deficient performance and prejudice. See Strickland. This Court should remand for a new penalty phase.

ARGUMENT II

THE CIRCUIT COURT ERRED IN SUMMARILY DENYING MR. FOSTER’S CLAIMS IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS

Mr. Foster sought an evidentiary hearing on all of his post-conviction claims, but was granted a hearing only on Claim

III (a-b) penalty phase ineffective assistance of counsel (PC-R.

1022-1170). On July 5, 2011, the trial court ruled on Claim III.

The final order refers to the summarily denied claims only by reference: “for the reasons stated in the previous order directing an evidentiary hearing, Claims I(a-c); II, III(c), IV,

V, VI, VII, VIII, IX, X and XI are hereby denied” (PC-R.3674-

4004). But, the November 2, 2010 two-page order granting an 87 evidentiary hearing does not address the reasons why Claims I-XI were summarily denied nor are there any record excerpts attached to that order (PC-R. 1477-78). Though some records are attached to the final order referring to Claim III, none of the July 5,

2011 order addresses any grounds for rejecting the other claims or which of the records refute the summarily denied claims. This is error.

If there is any question whether the movant has made a facially sufficient claim requiring a factual determination, the court will presume that an evidentiary hearing is required.

Booker v. State, 969 So. 2d 186, 195 (Fla. 2007). A decision to grant an evidentiary hearing is subject to de novo review. State v. Coney, 845 So. 2d 120, 137 (Fla. 2003). Mr. Foster’s Rule

3.850 motion pled facts that must be accepted as true.

Lightbourne v. State, 549 So. 2d 1364, 1365 (Fla. 1989); Maharaj v. State, 684 So. 2d 726, 728 (Fla. 1996) (factual and diligence claims on the merits must be accepted as true, and if facts are in dispute, an evidentiary hearing is warranted). The records do not conclusively refute Mr. Foster’s claims. Fla. R. Crim. P.

3.850.

a. Juror Misconduct.

Mr. Foster alleged that juror misconduct affected the outcome of his trial and violated his due process right to a fair and impartial jury under the Florida Constitution and the 88 Fifth, Sixth, Eighth and Fourteenth Amendments to the United

States Constitution. (PC-R. 1022-1170). The court erred in denying Mr. Foster the right to interview jurors when he made a prima facie showing of misconduct (PC-R. 1415-1426; 1448-1452).

At trial, both parties emphasized the importance of truthfulness to the venire (R. 835-36; 916-17; 922). Despite these warnings,

Juror Quelet failed to disclose his prior criminal conviction or that it was prosecuted by Lee County authorities (R. 839). Juror

Quelet had been arrested for driving under the influence on

April 28, 1974. Public records show that he was prosecuted by the Lee County State Attorney’s Office and convicted. He was arrested and investigated by the Lee County Sheriff’s

Department. Yet, Mr. Foster was never afforded the opportunity to question him on any potential bias he may have had. Both Lee

County agencies investigated and prosecuted Mr. Foster.

The prejudice here is that Juror Quelet may have decided whether to sentence Mr. Foster to death based, not on the evidence before him, but on his own unknown experiences with Lee

County authorities. Buenoano v. State, 708 So. 2d 941, 953 (Fla.

1998). Trial counsel’s failure to uncover this information rendered counsel’s performance during voir dire ineffective.

Strickland v. Washington, 466 U.S. 668 (1984) .

If the State knew or should have known this information and failed to disclose it to the court or defense counsel, that is a 89 Brady violation. Brady v. Maryland, 373 U.S. 83, 87 (1963). The

Lee County Sheriff’s Office arrested and charged Mr. Quelet. The

Lee County State Attorney’s Office prosecuted him for the crime.

Thus, the State had actual and constructive knowledge of the arrest since it was responsible for Mr. Quelet’s subsequent prosecution and conviction before Mr. Foster’s trial. Kyles v.

Whitley, 514 U.S. 419 (1995).

The State failed to disclose this evidence during voir dire or later at trial and it affected Mr. Foster’s ability to have a fair trial. This is a structural error where prejudice is presumed. Giglio v. United States, 405 U.S. 150

(1972)(deliberate deception of a court and jurors by the presentation of known false evidence is incompatible with

‘rudimentary standards of justice.”) False evidence is deemed

‘material’ if there is a reasonable likelihood that the false testimony could have affected the judgment of the jury.” Guzman v. State, 868 So.2 d 498 (Fla. 2003). A juror’s false response during voir dire which results in the non-disclosure of material information relevant to jury service, justifies a new trial as a matter of law. Chester v. State, 737 So. 2d 557 (Fla. 1999); See also De La Rosa v. Zequeira, 659 So. 2d 239 (Fla. 1995). Mr.

Foster had a right to know that Juror Quelet had a prior criminal history and should have been entitled to question him on those material facts. Prejudice is presumed when juror 90 misconduct conceals facts that are relevant and material from trial counsel. Even if it were not, Mr. Foster was actually prejudiced.4 Mr. Foster is entitled to a new trial. Young at

1103; See also Lowrey v. State, 705 So. 2d 1367 (Fla. 1998).

1. Improper consideration of pretrial media coverage.

Juror Martie gave untruthful responses in voir dire about her prior knowledge of Mr. Foster’s case through local media coverage. Despite her assurances that she could be fair and impartial, Juror Martie compared photographs she viewed at trial with what she had seen in the newspaper before being empanelled on the jury—the very thing she had been instructed not to do (R.

72). When the photographs were introduced through State forensic witness Rick Joslin, Juror Martie recalled that the photos detailed “more than what was in the paper.” Greenhill, Someone

Has to Die Tonight at 365. Juror Martie clearly did not follow the judge’s instruction not to consider pre-trial publicity. Mr.

Foster is entitled to a new trial or at least, leave to interview jurors to investigate this claim.

2. Jurors Failure to Follow Jury Instructions.

Judge Anderson repeatedly admonished the jury that they

4 Mr. Foster was prevented from fully investigating and pleading actual prejudice due to the rules prohibiting his counsel from interviewing jurors and the trial court’s denial of Mr. Foster’s motion to interview jurors (PC-R. 1415-1426;1448- 1452).

91 were not permitted to draw any inference of guilt from Mr.

Foster’s failure to testify (R. 971-72). Though all jurors said in voir dire that they could follow these instructions, comments attributed to jurors show they did not. In the Fort Myers News

Press, jury foreman Weatherly was quoted as saying “He [Kevin

Foster] didn’t give us a whole lot to go on. He sat emotionless during the whole thing.” Ft. Myers News-Press, April 10, 1998.

In Mr. Greenhill’s book, Someone Has To Die Tonight, he chronicled the trial by interviewing jurors and other participants in the trial. Mr. Greenhill attributed Weatherly with saying: “Get up there and set the record straight,

Weatherly thought. Say, this is who I am. This is where I was.

But the juror would have been shocked if Kevin had testified.

That’s a fantasy world. That doesn’t happen. You can’t help yourself.” Greenhill, Someone has to Die Tonight, at 392. Juror

Martie was quoted as well, “He was out for no good . . . out to kill and he really seemed to enjoy it. No remorse. Hard hearted.” Id. at p. 408. She added: “No remorse. I hope you repent while you’re in for what you did. You would have done more danger if you hadn’t started bragging about what you did.”

Id. at p. 413.

Juror Quelet was represented as thinking, “Like a bump on a log. Maybe if I saw some emotion.” Id. at p. 372. Juror

Weatherly was represented as scrutinizing Kevin and thinking, 92 “Give me something . . . nothing.” Id. at p. 383; “You never let

us in. You just sit there emotion-less.” Id. at p. 416.

Mr. Jacobs and Mr. Cipriano, Chris Black’s attorney, filed

pre-trial motions to dismiss the indictments alleging that a

member of the grand jury had been close personal friend with the

victim. The requests for grand jury transcripts were denied. (R.

680); see also, Naples Daily News, October 11, 1996. If true,

the jury misconduct here was significant.

At the very least, Mr. Foster should be permitted to

interview jurors to document the extent of the misconduct and

the Sixth Amendment violation. Without any investigation, Mr.

Foster’s right to an impartial and competent jury was violated.

Tanner v. United States, 483 U.S. 107, 126 (1987). Florida

statutes define and limit the aggravating circumstances which a

jury may consider to determine whether death is an appropriate

punishment. See Fla. Stat. § 921.141(5). Lack of remorse is inadmissible as an aggravating factor in capital cases. See

Tanzi v. State, 964 So. 2d 106, 114 (Fla. 2007); Colina v.

State,, 570 So. 2d 929 (Fla. 1990); Trawick v. State, 473 So. 2d

1235, 1240 (Fla. 1985). This error cannot be harmless in the

context of the 17 motions to change venue because of massive

pre-trial publicity. Eaglin v. State, 19 So. 3d 935, 947 (Fla.

2009). The files and records do not refute this claim. An

evidentiary hearing is required. 93 b. Failure To Impanel An Impartial Jury Casts New Light On Change Of Venue Motions.

Before trial and immediately before the penalty phase,

defense counsel filed 17 motions requesting a change of venue5.

The trial court denied this request, citing Provenzano v. State,

497 So.2d 1177 (Fla. 1986) and Davis v. State, 461 So. 2d 67

(Fla. 1984).6 Defense counsel failed to effectively secure a

change of venue and effectively question the prospective jurors

extensively during voir dire about their knowledge of the

pretrial publicity. This was deficient performance. Strickland

v. Washington, 466 U.S. 668 (1984).

Florida law requires a change of venue when “the general

state of mind of the inhabitants of a community is so infected

by knowledge of the incident and accompanying prejudice, bias,

and preconceived opinions that jurors could not possibly put

these matters out of their minds and try the case solely upon

the evidence presented in the courtroom.” Davis v. State, 461

So. 2d 67, 69 (Fla. 1984); Manning v. State, 378 So. 2d 274, 276

(Fla. 1980); McCaskill v. State, 344 So. 2d 1276, 1278 (Fla.

5 Defense counsel filed 17 amendments to its initial motion requesting a change of venue.

6 The court said it was “inclined to believe that we can probably get a jury; and I’m thinking of the cases like the Provenzano case and Davis up in Columbia County where the two deputies were killed and this sort of thing, you know. It’s possible, so let’s try it.” (R. 572).

94 1977).

This was not a case where pre-trial newspaper reports were

mostly factual and non-inflammatory. Cf. Murphy v. State, 252

So. 2d 385 (Fla. 1971). Unlike Provenzano, media coverage here

was ugly. Articles reflected the public outrage that saturated

the community.

On March 1, 1998, two days before Foster’s trial, a column

in the local paper characterized Mr. Foster as a “redneck,

racist, pyromaniacal [sic], gun crazed, punk.” The author

portrayed Foster as possessing “crazed green eyes and Manson-

like tendencies.” It brazenly mocked Mr. Foster, asking “If

Kevin Foster masturbated on newspaper coverage of the Lords of

Chaos’ Coca-Cola plant arson, what does the 20 year old have

planned for the opening of his murder trial this week? This is

one twisted kid.” Cook, Sam “Old Sparky’s hot jolt may await

Foster”, Cape Coral News-Press, March 1, 1998, D-1.

Highly sensational media coverage continued throughout Lee

County until sentencing. The defense had to exhaust all of his

peremptory challenges to removed tainted jurors, but he did not

exhaust his cause motions. Hoy v. State, 353 So. 2d 826 (Fla.

1977).

Trial counsel’s efforts to address bias from pre-trial coverage at the beginning of voir dire also were ineffective.

(R. 569-570). The court made no explicit ruling on counsel’s 95 request for individual voir dire. While the court permitted attorneys to ask one or two general questions to specific jurors regarding the media coverage, individual questionnaires focusing on the extent of media exposure were never conducted. Before the penalty phase, defense counsel attempted individually question the jurors but was denied. (R. 1912).

While counsel moved to change venue 17 times, his questioning of jurors after he’d lost those motions on the issue of prejudicial media coverage was superficial. Any reasonable attorney would have asked detailed in-depth questions of potential jurors about media coverage. See Strickland.

Likewise, the trial court was obligated to inquire during voir dire into the effect of the pre-trial publicity on the panel.7

The trial court’s failure to conduct this task rendered Mr.

Foster’s trial structurally flawed. Rosales-Lopez v. United

States, 451 U.S. 182 (1981). The record does not conclusively rebut this claim. Mr. Foster is entitled to an evidentiary hearing or a new trial.

7 See Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 602-603 (1976)(where concerns exist about the extent of pre trial publicity, “the trial judge should employ the voir dire to probe fully into the effect of publicity. The judge should broadly explore such matters as the extent to which prospective jurors had read particular news accounts or whether they had heard about incriminating data such as an alleged confession or statements by purportedly reliable sources concerning the defendant’s guilt.”

96 1. Rules Prohibiting Juror Interviews.

Florida Rule of Professional Responsibility 4-3.5(d)(4) provides that a lawyer shall not initiate communications or cause another to initiate communication with any juror regarding the trial after the dismissal of the jury. This ethical rule, one which prevents Mr. Foster from investigating any claims of jury misconduct or bias that may be inherent in the jury’s verdict, is unconstitutional on its face and as applied to Mr.

Foster.

Under the Sixth, Eighth, and Fourteenth Amendments, Mr.

Foster is entitled to a fair trial and sentencing. Mr. Foster's inability to fully explore possible misconduct and biases of the jury prevents him from fully detailing the unfairness of the trial. Mr. Foster has made a prima facie showing that misconduct has occurred in his case. Due process dictates that he should be able to investigate this misconduct by juror interviews. Cf.

Turner v. Louisiana, 379 U.S. 466 (1965); Russ v. State, 95 So.

2d 594 (Fla. 1957).

On September 28, 2010, Mr. Foster filed a Motion for Leave to Interview Trial Jurors and/or Notice of Intent to Interview

Jurors on the grounds of juror misconduct and showing counsel’s good faith basis for requesting the interviews (PC-R. 1415-

1426). On October 18, 2010, the trial court denied Mr. Foster’s request to interview jurors (PC-R. 1448-1452). 97 2. Ineffective Assistance of Counsel For Failure To Object To The Avoid Arrest Aggravator At Penalty Phase.

The trial court improperly applied the aggravating factor of commission of a crime for the purpose of avoiding lawful arrest, and denied Mr. Foster a hearing on his claim (PC-R.

3674-3728); See Godfrey v. Georgia, 446 U.S. 420 (1980); Maynard v. Cartwright, 108 S. Ct. 1853 (1988), because it failed to genuinely narrow the class of persons eligible for the death sentence. See Zant v. Stephens, 462 U.S. 862, 876 (1983). Over defense objection, the trial court improperly transferred the intent of the other participants in the crime to Mr. Foster. By failing to effectively challenge the application of this aggravator, Mr. Foster’s trial counsel rendered deficient performance. As a result, Mr. Foster’s death sentence violated his rights under the Sixth, Eighth, and Fourteenth Amendments.

The aggravating circumstance of preventing or avoiding lawful arrest applies when the felony was committed for the purpose of avoiding or preventing a lawful arrest or affecting an escape from custody. Fla. Stat. § 921.141(5)(e). The sole purpose and motive for the homicide must be to avoid lawful arrest.8 See

8 Florida courts require proof that intent to avoid arrest or effectuate escape must be very strong. Hernandez v. State, 4 So. 3d 642 (Fla. 2009); Green v. State, 975 So. 2d 1081 (Fla. 2008); Griffin v. State, 866 So. 2d 1 (Fla. 2003). The mere fact that a capital murder victim knew and could identify the murderer, without more, is insufficient to provide the avoid 98 Menendez v. State, 368 So. 2d 1278, 1282 (1979)(citing Riley v.

State, 366 So. 2d 19 (Fla. 1978)). Motive is personal to the individual. The trial court relied upon the transferred intent of the co-participants not Mr. Foster's personal motives.

Witnesses confirmed that the victim never identified Mr.

Foster on the night of the murder. Black testified that he made the suggestion that the victim had to die because he wanted to avoid getting arrested (R.1327). He admitted that he was looking out for himself (R.1327). Mr. Black’s intent could not be transferred to Mr. Foster for an individualized sentencing.

Codefendants’ testimony was that Mr. Foster could not be identified by the victim as he did not attend that high school.

Card v. State, 803 So. 2d 613 (Fla. 2001). No evidence showed

Mr. Foster was in danger of being arrested. Dafour v. State, 495

So. 2d 154, 163 (Fla. 1986).

c. Ineffective Assistance of Counsel Pre Trial and Guilt Phase.

1. Trial counsel failed to challenge the State’s ballistics expert and evidence.

Trial counsel failed to effectively cross examine the

State’s ballistics expert FDLE Analyst Bill Hornsby. During direct examination, Hornsby said that he had run numerous tests

arrest sentencing aggravator. Card v. State, 803 So. 2d 613 (Fla. 2001); Hertz v. State, 803 So. 2d 629 (Fla. 2001) (emphasis added).

99 on a Mossberg shotgun to establish whether two spent cartridges recovered from the scene had been fired from the weapon. After conducting several tests on the weapon, he concluded within a reasonable degree of scientific certainty that the spent shells had been “at one time chambered in and extracted from the submitted shotgun.” (R. 1422-23). He could not say whether the shells in question had ever been fired from the shotgun. (R.

1423). He was able to “replicate the extractor, the ejector, and the shell stop marks.” (R. 1424). These markings permitted him to conclude that the Mossberg shotgun recovered from Peter

Magnotti’s car had conclusively been the weapon used to cycle the two spent cartridges which were recovered from the scene of the crime “to the exclusion of all others.” (R. 1431).

Hornsby was unable to conclusively link the two shells recovered at the scene to the shotgun. (R. 1428-32). He could not confirm that pellets retrieved from the scene had originated from the two casings he examined. (R. 1430, 1432). But the defense failed to conduct any further inquiry into the fact that the only markings which Hornsby was able to reproduce had come from the ejectors stops on the gun rather than the standard firing comparisons utilized in the field of ballistics. Had Mr.

Foster been granted a hearing, his expert could have refuted

Hornsby’s methods and conclusions.

Mr. Foster’s expert could have shown that Hornsby could not 100 draw such conclusions from the evidence he saw. Ejector stop marks alone cannot identify the gun or determine that the shells recovered from the scene were conclusively fired from that weapon. If Hornsby was able to identify ejector marks then he should have been able to replicate the other standards of the industry in order to provide a reliable conclusion. Hornsby’s testimony was incorrect.

Trial counsel failed to consult an expert to assist in questioning the only physical evidence supposedly linked to Mr.

Foster. Counsel failed to emphasize the weaknesses in Hornsby’s testimony because he did not know what they were. The jury did not know that Hornsby’s tests did not conclusively link the shotgun to the shells from the crime scene. It was a feature of

the State’s case.

Trial counsel’s failure to request an expert to challenge

the ballistics evidence was unreasonable. There is no indication

that counsel performed any investigation of his own into

Hornsby’s methods. Had defense counsel obtained an expert or

simply conducted an effective investigation of his own, reliable

evidence would have been available to rebut Hornsby’s findings.

Post-conviction counsel’s expert would have illustrated how

unscientific and below industry standards Hornsby’s testimony

was.

Jurors’ comments show the prejudice of the unchallenged 101 ballistics evidence on the verdict. Foreman Weatherly said that following Hornsby’s testimony it was a “[d]one deal.” Greenhill,

Someone Has to Die Tonight, at 375. Juror Martie didn’t know anything about guns and found the explanation helpful. Id.

Quelet found Hornsby’s testimony a key moment, specifically testimony about the ejector markings. Id. Other jurors found the

testimony confusing, with one juror admitting they did not

understand the ballistics evidence and had to have other jurors

explain it to them. Id. at 409.

Hornsby’s exaggerated conclusions led the jury to believe

he had a “match.” Due to counsel’s failure to effectively cross

examine the State’s expert or offer a defense expert to rebut

the State’s claim, the jury was left with only one false opinion

that was below industry standards for ballistics comparison. No

adversarial testing can occur in these circumstances.

Mr. Foster was entitled to an evidentiary hearing on this

claim. Mr. Foster would have presented an expert to show how

misleading Hornsby’s testimony was. The trial court summarily

denied the claim without a reason (PC-R. 1477-1478; 3674-3728).

No tactic or strategy can be attributed to counsel’s

omissions when they fail to investigate and prepare expert

testimony. State v. Riechmann, 777 So. 2d 342, 354 (Fla. 2000).

To the extent that the State knew Hornsby’s testimony was false, misleading, or that his conclusions were below the acceptable 102 standards for ballistics testing at the time of trial, the State violated Mr. Foster’s constitutional right to confrontation. See

Melendez-Diaz, 129 S.Ct. at 2536-37. Had the jurors known that

Hornsby’s testimony was misleading, the result would have been different.

2. Failure to object to non-expert testimony.

Trial counsel has a duty to raise contemporaneous objections throughout the course of trial and preserve error for review. Insko v. State, 969, So. 2d 992, 1001 (Fla. 2007).

Defense counsel failed to object to improper lay opinion testimony at Mr. Foster’s trial. The admissibility of lay opinion testimony is limited. Under 90.701(1), the witness must have firsthand knowledge through personal observation of the facts before opinion testimony is admissible. If the inference or opinion misleads the jury to the prejudice of the adverse party it is inadmissible. If it is a matter of specialized knowledge that requires an expert witness to draw a conclusion, a lay witness cannot give his opinion. Under Section 90.701 it is necessary that the testimony of a lay witness meet both criteria before his opinion is admitted.9

9 See D.R.C. v. State, 670 So. 2d 1183 (Fla. 5th DCA 1996) (A police officer, who was not qualified as an expert, could not express a lay opinion that a juvenile was a seller, rather than a user, of rock cocaine.); Kelvin v. State, 610 So. 2d 1359, 1364 (Fla. 1st DCA 1992)(reversible error to permit evidence technician to testify that the dowels showed the flight path of 103 Crime Scene Investigator Richard Joslin testified that the

victim’s wounds were “consistent with those of shotgun pellets.”

(R. 1047). He said a small piece of tissue paper that was

recovered from the scene was consistent with those found in

unspent shotgun cartridges. (R. 1051-52). The paper disk must

have originated from an unfired cartridge based his own

experience. (R. 1051-52). Joslin, however, had no training in

ballistics and firearms identification. His testimony about the

victim’s wounds and the origin of tissue paper recovered at the

scene was impermissible lay opinion on a subject he was not

qualified to give. The defense failed to object.

But for counsel’s errors, there is a reasonable

probability the outcome of Mr. Foster’s trial would have

been different. Strickland.

3. Failure to challenge admissibility of scientific evidence.

Before scientific evidence can be admitted in court, a Frye

hearing is required. See Frye v. United States, 293 F. 1013,

1014 (D.C. Cir. 1923); See also Stokes v. State, 548 So. 2d 188

(Fla. 1989) (applying Frye standard in Florida case); See also,

Ramirez v. State, 651 So. 2d 1164, 1166-7 (Fla. 1995). Had defense counsel requested a Frye hearing, he could have proved

the bullets where witness “was not a reconstructionist and had no training in ballistics).

104 that toolmark and firearms identifications are unreliable and subjective with no industry standards. Because the State sought to introduce the expert testimony it bore the burden of proving the general acceptance of the underlying scientific principle and the testing procedures. Ramirez v. State, 651 So. 2d 1164,

1168 (Fla. 1995);Murray v. State, 838 So. 2d 1073, 1078 (Fla.

2002). Mr. Foster alleged in his post-conviction motion that but

for defense counsel’s deficient performance in failing to

challenge Hornsby’s testimony or request a Frye hearing,

affected the outcome of his trial.

4. Failure to effectively challenge admissibility of hearsay evidence.

Trial counsel failed to effectively challenge the

admissibility of the co-defendant’s or David Adkins’ hearsay

statements. Strickland. Part of counsel’s responsibility is to

raise contemporaneous objections and effectively arguing in

support of them. Insko, 969 So. 2d at 1001.

Here, co-defendants Young, Shields, and Magnotti were

allowed to testify to Chris Black’s statements where the victim

threatened to report him and Torrone to the school resource

officer in the morning. The State argued that these statements

were not being offered for the truth, but to establish that the

rest of the individuals present that night had knowledge of the

statements, and they provided the motive for Mr. Foster.

105 During discovery, trial counsel was provided with the boys’ police statements. Trial counsel knew what each would testify about. Trial counsel’s failure to challenge and raise objections to their testimony allowed hearsay statements of the co- defendants to bolster Mr. Black’s testimony before he gave it. A witness's prior consistent statement may not be used to bolster his trial testimony. Lamb v. State, 357 So. 2d 437 (Fla. 2d DCA

1978); Roti v. State, 334 So. 2d 146 (Fla. 2d DCA 1976). The rationale behind prohibiting the use of prior consistent statements is to prevent bolstering the credibility of that witness. Brown v. State, 344 So. 2d 641 (Fla. 2d DCA 1977).

At trial, Shields, Young, and Magnotti repeated what Black had told them that night. While all three testified before Chris

Black’s testimony, this did not remove it from the rule prohibiting the use of prior consistent statements. Cf. Barnes v. State, 576 So. 2d 439 (Fla. 4th DCA 1991). The admission of multiple statements was impermissible and cumulative hearsay.

Had trial counsel prepared effectively, he could have filed a pretrial motion in limine to limit their introduction. Occhicone v. State, 769 So. 2d 1037 (Fla. 2000).

Trial counsel also failed to properly object to David

Adkins cumulative hearsay testimony. Adkins had dinner with the victim the night of the homicide and the victim told Adkins of his intent to report Torrone and Black to the school resource 106 officer the following morning. The State offered Adkins testimony to argue that Mr. Foster had motive to kill the victim the night of the homicide. This testimony was cumulative and defense counsel had an obligation to object to its introduction at trial. On direct appeal, this Court agreed and found the failure to object was error, but harmless. Foster v. State, 778

So.2d 906 (Fla. 2000).

Counsel’s failure to raise a contemporaneous objection or effectively challenge Adkins’ hearsay testimony rendered his

assistance ineffective. Amend. VI, U.S. Const.; Art. I §16, Fla.

Const. Trial counsel’s failure allowed the State to present cumulative evidence of their theory of Mr. Foster’s motive.

Defense counsel’s omissions fell “outside the wide range of professionally competent assistance.” Strickland 466 U.S. at

690; Wright v. State, 446 So. 2d 208 (Fla. 3 DCA 1984). The

files and records do not conclusively rebut this claim.

d. Brady/Giglio Violations and Newly Discovered Evidence Show Forensic Science Used To Convict Mr. Foster Is Invalid.

In 2006, the National Academy of Sciences formed a

committee to study issues of “forensic science.” Committee on

Identifying the Needs of the Forensic Sciences Community,

National Research Council, Strengthening Forensic Science in the

United States: A Path Forward (2009) (NAS Report). Its report is

newly discovered evidence that the “scientific” evidence used to 107 convict Mr. Foster was due to questionable scientific methods in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.

Here, expert and lay witness testimony on toolmark/firearm identification and fingerprint analysis used terms that misled the jury about the conclusiveness and accuracy of testimony.

Toolmark and firearm identification and fingerprint comparison were critical pieces of evidence used against Mr.

Foster. Trial counsel failed to effectively question the accuracy, reliability and validity of the testimony the State offered regarding both areas of forensic evidence.

Independent evidence examination was absent here. Florida

Department of Law Enforcement (FDLE) and the Lee County

Sheriff’s Office (LCSO) were responsible for evidence collection and testing. The State developed its own theory of the case. The forensic analysts and law enforcement investigators who worked on Mr. Foster’s case worked to uncover evidence to support that theory. Cf. NAS Report at 4-8, 4-9. Under these biased assumptions, investigators and analysts found evidence to support their theories and ignored or downplayed the significance of evidence that was inconsistent.

LCSO Crime Scene Investigator Richard Joslin collected

108 evidence found at the crime scene.10 Crime Scene Investigator

Kristina Amspacker collected latent prints which were examined

by State fingerprint expert Steve Casper.11 Neither investigator

provided any certification in investigating crime scenes,

processing evidence, or securing latent fingerprints for

purposes of fingerprint comparison. No mention was made about

any proficiency testing, recertification procedures, or

supervised practice they performed. Despite failing to be

qualified or accepted by the trial court as an expert in any

field, Joslin provided expert testimony in firearms and toolmark

identification.12

FDLE Analyst Hornsby failed to provide sufficient evidence

about his credentials. While Hornsby provided information

regarding his education (R. 1414), no evidence showed that he

was certified, proficiency tested, or completed any continuing

10 Despite this responsibility, Joslin testified that the only training he had acquired was from attending two training courses during his six and half years at the Lee County Sheriff’s Office. (R. 1027).

11 Amspacker testified that she had “attended numerous specialized schools that ha[d] been conducted by the Florida Department of Law Enforcement, Federal Bureau of Investigations, and also the local Criminal Justice Academy. (R. 1372). She further testified that she had performed “[p]robably a thousand hours of specialized training.” Id.

12 Richard Joslin testified at trial that wounds which the victim received had conclusively come from a shotgun. (R. 1033). He also provided additional commentary on other various areas of firearm identification. (R. 1033-34,1047,1051).

109 education programs. Pathologist Carol Huser, the doctor who testified about the autopsy, was never questioned on areas such as recertification procedures, continuing education in the field of forensic pathology, and possible disciplinary procedures which exist in her field of science.

The practical effect of Joslin’s unscientific testimony is that despite having never been offered or qualified by the court as an expert, he was permitted to present the jury with misleading terms and an unqualified opinions about toolmarkings and firearms identification. This is precisely the identifications the NAS Report condemns.

The State’s fingerprint analyst, Steve Casper, testified he was able to determine that a fingerprint lifted from the side of the shotgun recovered from Peter Magnotti’s car “had ‘matched’ the number three finger,[] the right ring finger of Kevin

Foster.” (R.1403). Casper came to this conclusion based upon the fact that a “sufficient number of ridge characteristics were found at the present time to secure an identification.” (R.

1404). Casper agreed there were no requirements as to the number of points necessary for comparison. (R. 1406-07). Casper’s use of the term ‘match’ and his reference to ridge characteristics standards were misleading. When there are no standards, there are inherent problems in attempting to connect evidence to one particular suspect. NAS Report at 4-8, 4-9. There is a risk of 110 bias in law enforcement investigations. NAS Report at 6-2.

Here, no Frye hearing was held to challenge the admissibility of the toolmark and firearms identification evidence or latent fingerprint analysis performed by LCSO or

FDLE. Trial counsel failed to challenge the admissibility of the evidence. Had he done so, the State’s case against Mr. Foster could have been substantially limited. The defense neither retained nor consulted forensic experts on this evidence.

Strickland, 466 U.S. at 685. No adversarial testing could occur in these circumstances. Smith v. Wainwright, 799 F.2d 1442 (11th

Cir. 1986).

At an evidentiary hearing, Mr. Foster would have shown through experts that the State’s evidence was flawed and unscientific. Mr. Foster was prejudiced by the questionable

“scientific” evidence, bias in the law enforcement, and by witnesses who were not qualified to provide expert testimony to the jury. An evidentiary hearing is warranted.

e. Lethal Injection Claim.

Mr. Foster sought an evidentiary hearing challenging

Florida’s lethal injection procedures which was denied (PC-

R.3674-4004). Mr. Foster is aware of this Court’s decisions rejecting challenges to lethal injection, e.g. Schwab v. State,

969 So. 2d 318 (Fla. 2007). He is also aware that this Court has rejected the general notion that each litigant is entitled to 111 his own hearing. See Tompkins v. State, 994 So. 2d 1072 (2008).

Mr. Foster seeks an evidentiary hearing at which he would have the assistance of counsel, the opportunity to challenge evidence and present evidence that has not been heard in any court in

Florida. See Baze v. Rees, 128 S. Ct. 1520 (2008).

On June 8, 2011, a Danish pharmaceutical company, Lundbeck,

Inc., urgently sought ways to stop U.S. prisons from using pentobarbital—a drug for epilepsy—to execute human beings. Sten

Stoval, Lundbeck ‘Horrified’ at Drug Execution Use, Wall Street

Journal (June 8, 2011). That same day, the DOC signed a new

protocol for carrying out executions by lethal injection in

Florida. The new protocol substituted pentobarbital (Nembutal)

for the sodium thiopental for use as an anesthetic before the

introduction of pancuronium bromide and potassium chloride.

The change was significant. Pentobarbital is a short-acting

barbiturate approved by the Food and Drug Administration (FDA)

for the treatment of seizures, preoperative sedation, and use as

a hypnotic. Because the drug is a barbiturate with a high

potential for abuse, it is classified and regulated as a

schedule II substance. Fla. Stat. § 893.03(2). It is also used

in Florida for animal euthanasia.

Lundbeck publicly condemned the misuse of its product for

executions and instituted restricted distribution to ensure that

U.S. prisons will not be able to obtain it for executions. David 112 Jolly, Danish Company Blocks Sale of Drug for U.S. Executions,

New York Times (July 1, 2011). Despite the warning, Governor

Scott signed a death warrant for Manuel Valle for June 30, 2011.

Mr. Valle challenged the constitutionality of substituting pentobarbital as the anesthetic, coupled with Florida’s history of deviating from its procedures. After a truncated evidentiary hearing, this Court rejected the Eighth Amendment challenge finding no substantial risk of harm. Valle v. State, 70 So.3d

530 (Fla. 2011).

Mr. Foster is entitled to a hearing on his Eighth Amendment claim during which he would call witnesses from Lundbeck. Mr.

Foster would address how the DOC is obtaining the drug and whether that process is in compliance with state and federal regulations given that pentobarbital is a schedule II substance.

Baze v. Rees left open the question of whether a lethal injection procedure that is constitutional on its face may violate the Eighth Amendment when it is not carried out as written. Thus, Florida’s history of deviating from written execution procedures remains relevant. See, Davis v. Florida,

742 So. 2d 233 (Fla. 1999) (relying on presumption that DOC will properly perform its duties but expressing concern that “once again. . .there is an indication that [DOC] has not followed the protocol established for the appropriate functioning of the electric chair and carrying out of the death penalty.”); 113 Provenzano v. Moore, 744 So. 2d 413 (Fla. 1999) (detailing the bloody execution of Allen Lee Davis, only a week after his challenge was denied). Mr. Foster is entitled to a hearing.

f. Newly Discovered Evidence that Mr. Foster’s Death Sentence constitutes Cruel and Unusual punishment.

The Eighth Amendment requires that the death penalty must be imposed fairly, and with reasonable consistency, or not at all. Furman v. Georgia, 408 U.S. 238, 310 (1972) (per curiam).

The ABA Death Penalty Moratorium Implementation Project and the Florida Death Penalty Assessment Team published a report on

Florida’s death penalty system. See ABA, Evaluating Fairness and Accuracy in the State Death Penalty Systems: The Florida Death

Penalty Assessment Report, September 17, 2006 (ABA Report). The

conclusions make clear that Florida’s death penalty system is so

seriously flawed that it does not meet the constitutional

muster. Id. at iii. The Report details concerns regarding

jurors’ understanding of their role, jury instructions, the

juror override, and the failure to require unanimity in the

sentencing recommendation. ABA Report at vi, x, 31. Racial and

geographical disparities in the death penalty remain. ABA Report

at 7-9. There are also concerns regarding prosecutorial

misconduct in capital cases. Id.at 125. The committee commented

that this Court has failed to meaningfully conduct a comparative

proportionality review. ABA Report at 213. Further, death row

114 inmates are frequently precluded from bringing meritorious claims due to retroactivity and procedural default rules. The

Report found Florida’s clemency process to be entirely arbitrary because there are no rules delineating factors for the Board to consider regarding clemency. ABA Report at vii. Further, judicial elections and appointments are influenced by consideration of judicial nominees’ or candidates’ views on the death penalty. ABA Report at xxxi. While Florida has excluded individuals suffering from mental retardation from the death penalty, it has yet to extend that logic to those suffering from severe mental disabilities. Id. at xi. The ABA assessment team found deficiencies in analyzing forensic evidence. Id. at 83.

When all factors in the ABA report are considered in analyzing

Florida’s ability to produce a reliable result, the conclusion

“smacks of little more than a lottery system.” Furman, 408 U.S. at 293 (Brennan, J., concurring);Proffit v. Florida, 428 U.S.

242, 259-260 (U.S. 1976). Florida’s death penalty violates the

Eight Amendment.

g. Cumulative Analysis

Mr. Foster did not receive the fundamentally fair trial to which he was entitled under the Eighth and Fourteenth

Amendments. See Heath v. Jones, 941 F.2d 1126 (11th Cir. 1991);

Derden v. McNeel, 938 F.2d 605 (5th Cir. 1991). Due process was deprived by the sheer number and types of errors involved in his 115 trial, when considered as a whole, virtually dictated the sentence that he would receive. See Jones v. State, 569 So. 2d

1234 (Fla. 1990), Nowitzke v. State, 572 So. 2d 1346 (Fla.

1990). Jackson v. State, 575 So. 2d 181, 189 (Fla. 1991), Ellis v. State, 622 So. 2d 991 (Fla. 1993), Taylor v. State, 640 So.

2d 1127 (Fla. 4th DCA 1994). The severity of the sentence

"mandates careful scrutiny in the review of any colorable claim

of error." Zant v. Stephens, 462 U.S. 862, 885 (1983). The

cumulative effects of error must be carefully scrutinized in

capital cases. Taken as a whole, the guilt and penalty phase

issues show that Mr. Foster failed to get a fair trial. The

flaws in the system that convicted Mr. Foster of murder and

sentenced him to death have been pointed out throughout not only

this pleading, but also in Mr. Foster’s direct appeal and his

3.850 Motion. These errors cannot be harmless. The results of

the trial and sentencing are not reliable.

h. Death Sentence Constitutes Cruel and Unusual Punishment.

The Eighth Amendment prohibition of cruel and unusual

punishment forbids arbitrary imposition of the death penalty and

requires that capital sentencing schemes ensure reasonableness,

fairness and consistency in sentencing. Furman v. Georgia, 408

U.S. 238, 310 (1972); Harris v. Alabama, 513 U.S. 504, 511

(1995). The jury recommendation is a primary source for the

116 Furman channeling necessary to bring Florida’s death penalty scheme in line with the Eighth Amendment. Juries make those recommendations based on Standard Jury Instruction in Criminal

Cases 7.11 that instructs them on their role. The 7.11 instruction used in Mr. Foster’s case was unconstitutional because it failed to provide the jury with a clear understanding of its role in sentencing. Here, the trial court read two sets of jury instructions during penalty phase (R. 1913; 2107). The

first set used the specific language that the 2009 revision

sought to eliminate by telling the jury that the sole

responsibility for Mr. Foster’s sentence rested with the court.

The second instruction attempted to address the great weight

standard announced in Tedder. The court’s use of different

language in the two instructions created juror confusion.13

Jurors were left with the impression that their recommendation

was not binding and that the ultimate responsibility for the

sentence rested with the trial judge. Comments made during voir

dire gave jurors misleading instructions about their role in

determining which factors had been established in aggravation as

well as the role which mitigation plays in the weighing process

(R. 714, 783, 422). The jury’s discretion was inadequately

13 Numerous times during the course of voir dire, the State specifically said that the voir dire panel needed to comprehend that the jury’s role in the sentencing process was merely advisory. (R. 313-314, 422-423, 430, 446, 817).

117 guided contrary to the Eighth Amendment. Mr. Foster’s sentence is cruel and unusual.

i. Shifting of Burden of Proof to Mr. Foster violation of Eighth and Fourteenth Amendments.

The trial court and the State impermissibly shifted the burden to Mr. Foster to prove whether he should live or die. The

State is required to establish the existence of one or more aggravating circumstances before death can be imposed and must show that the aggravating circumstance outweighs the mitigating circumstance. State v. Dixon, 283 So. 2d 1 (Fla. 1973). Here, the trial court found the avoid arrest aggravator and “cold, calculated and premeditated” aggravators. It was improper to shift the burden to the defendant to establish that mitigating circumstances outweigh aggravating circumstances. Mullaney v.

Wilbur, 421 U.S. 684 (1975). The trial court injected misleading and irrelevant factors into the sentencing determination.

Maynard v. Cartwright, 486 U.S. 356 (1988); Hitchcock v. Dugger,

481 U.S. 393 (1987); Caldwell v. Mississippi, 472 U.S. 320

(1985). At penalty phase, the judge instructed the jury that it

was to decide “whether sufficient aggravating circumstances

exists that would justify the imposition of the death penalty

and whether there are mitigating circumstances sufficient to

outweigh the aggravating circumstances, if any.” (R. 815, 883-

84). The burden was shifted to Mr. Foster to show that life

118 imprisonment was the appropriate sentence.

CONCLUSION

Based upon the foregoing, the Appellant, Kevin Foster,

urges this Court to grant him a new trial and/or reverse this

case for a full and fair hearing on the summarily denied issues.

119 CERTIFICATE OF SERVICE

I HEREBY CERTIFY that true and correct copies of the foregoing Initial Brief have been furnished by United States

Mail, postage prepaid to the Florida Supreme Court, 500 S. Duval

Street, Tallahassee, FL 32399; Mr. Stephen Ake, Assistant

Attorney General, Concourse Center, Tampa, Florida 33607-2391 on this 10th day of April, 2012.

______TERRI L. BACKHUS Special Assistant CCRC-South Fla. Bar No. 0946427

SCOTT GAVIN Staff Attorney Fla. Bar No. 0058651

CCRC-South 101 3rd Avenue, Suite 400 Fort Lauderdale, Florida 33301 Tel. (954) 713-1284

COUNSEL FOR APPELLANT

CERTIFICATE OF TYPE SIZE AND FONT

Counsel certifies that this brief is typed in Courier New

12-point font.

______TERRI L. BACKHUS Special Assistant CCRC-South

120