IN THE SUPREME COURT OF FLORIDA 

No. _________

______________________________

STATE OF FLORIDA,

Plaintiff

v.

GERALD EUGENE STANO,

Defendant

_______________________________

BRIEF OF APPELLANT

______________________________

On Appeal from Summary

Denial of Rule 3.850 Relief

______________________________

MARK E. OLIVE

Attorney at law

2014 Lee Avenue

Tallahassee, FL 32312

(904) 531-0119

Contract Counsel for

Mr. Stano

Bar No. 058533

March 20, 1998

 TABLE OF CONTENTS

Page

TABLE OF CONTENTS i

TABLE OF AUTHORITIES iv

INTRODUCTION 1

III. ARGUMENT 11

Was Tape-recorded, and the Only Reason this

Public Records Request Created the Problem 16

it When he Testified at Trial, and He

Court 39

Crow Lied in State Court 60

 TABLE OF AUTHORITIES

 INTRODUCTION

It would be wrong, and unconstitutional, to allow Mr. Stano to be executed based upon the record before this Court, the controlling law, and the legitimate doubt about whether Mr. Stano is guilty of anything. Other than Mr. Stano's real or purported utterances, there is no evidence that he killed anyone. The challenge for the State is to show one strand, one thread, one drop, one iota of evidence against Mr. Stano, other than what has (allegedly) come out of his own mouth. The State cannot. That, alone, gives pause.

But there is much, much more to pause over. For while the State can do nothing to show guilt, Mr. Stano has met his challenge to show innocence, and violations of his constitutional rights. The claims presented in his Rule 3.850 Motion would, if true, entitle him to relief, the files and records of the case do not show that Mr. Stano is not entitled to relief, and the lower court's summary denial was error.

This the only case against Mr. Stano that ever went to trial. It took two trials to convict him. The evidence at the first trial was testimony from police officer Paul Crow that Mr. Stano confessed to him to the murder of Ms. Scharf in March, 1981, and testimony from police officer Johnny Manis that Mr. Stano confessed to him in August 1982. That was the proof, the whole proof, and there was nothing to the proof. There was no known cause of death; there was no physical evidence; and there was no corroboration. The jury could not reach a verdict.

On re-trial, the only additional evidence came from Clarence Zacke, himself an accomplished killer and an opportunistic jailhouse snitch. Zacke, surfacing after the mis-trial, said Mr. Stano also confessed to him. Zacke was rewarded, and Mr. Stano was convicted.

The reasons Mr. Stano ought to live are really all pretty simple. First, Zacke, has said, on tape, that all of his previous testimony was false. Zacke is caught saying that the truth is that he was solicited by prosecutors Dean Moxley and Chris White to testify at re-trial, untruthfully, that Mr. Stano had confessed to him. These allegations, if true, demonstrate a flagrant and prejudicial constitutional violation, the evidence could not have been discovered earlier, and the lower court erred by summarily denying the claim. See Argument I, infra.

Second, Mr. Stano wishes to present testimony that one does not often see. Paul Crow, the architect of the incredible "Stano is a mass murderer" story, is, we have now learned, known by his fellow law enforcement officers to be a liar, and is a policeman who would lie under oath to protect his reputation or his cases. This remarkable proffer--from six law enforcement officers who, between them, have over eighty years of law enforcement experience--is unparalleled in undersigned counsel's experience. These officers have sworn to the nightmare--a lying police officer who seeks the execution of an innocent person, for personal gain. Until Mr. Crow was unseated by a grand jury Presentment, he had power over police officers. He does not today, and they have slowly come forward. The lower court erred by summarily denying this Claim for relief. See Argument II, infra.

Third, what Crow has said about himself and about Mr. Stano in court, under oath, is contradicted by Crow's own words, on tape, from 1986. The tapes reveal that Crow hid extremely exculpatory evidence about the Stano cases he single-handedly pursued. Absent a door to door, world-wide, search, no attorney could have discovered these tapes any earlier than they were discovered. A fortuitous call from a concerned citizen revealed their existence, and counsel for Mr. Stano has presented the evidence from the tapes of Crow as quickly as possible. See Argument III, infra.

Fourth, Crow testified at trial that Mr. Stano was promised nothing for confessions; he testified in federal court that Mr. Stano was promised life imprisonment to confess, and there would have been no confessions without the promise. The lower court expressed dismay, not with Crow, but with counsel for petitioner for taking too long to get back to state court and present this claim. When law enforcement conduct "fails either to be fair or honest ... due process is implicated and the courts are required to conduct an intensive scrutiny of the police conduct in question." Walls v. State, 580 So.2d 131, 133 (Fla. 1991)(emphasis added). "Gross deception used as a means of evading constitutional rights has no place in such a system," id., 580 So.2d at 134, except, under the lower court's decision, when the messenger is determined to be late. Leaving aside the wisdom or correctness of such a "kill the late messenger" rule, it should not apply in this case. See Argument IV, infra.

Fifth, Mr. Stano's cases are infected with the "Howard Pearl" issue, and Mr. Stano ought to be provided the opportunity fully to litigate those issues before the judgment in this case is fully final. See Argument V, infra.

Finally, the lower court ruled that because CCR and/or undersigned counsel did not file pleadings as required by various orders of this Court, Petitioner's claims were barred. If Petitioner is barred from relief due to the absence of counsel, then Petitioner's right to due process of law has been violated. The lower court found that this Court's ruling in Stano v. Florida, No. 64,687, precluded any analysis of or concern over whether Petitioner was unconstitutionally harmed by being deprived of counsel during post-conviction proceedings. Petitioner disagrees. See Argument VI, infra.

 II. PROCEDURAL HISTORY

1. In 1980, Petitioner was arrested in Daytona Beach, which is in Volusia County, Florida, in 1980. Afterwards, for over a year and a half, Mr. Stano was interrogated by Paul Crow, who was then a detective in the Daytona Beach Police Department. Crow was attempting to obtain from petitioner confessions to unsolved homicides.

2. In March, 1981, Crow obtained several confessions to homicides that had occurred in Brevard County. He also obtained a confession to the killing of Cathy Scharf, who was a Brevard County resident who had been killed eight years earlier and whose body had been found on or near the Brevard County border with Volusia County.

3. In September, 1981, Mr. Stano pled guilty to the Volusia County cases to which he had confessed, and he received a life sentence pursuant to a plea agreement. Mr. Stano went to prison. 4. On March 3, 1983, Mr. Stano was indicted in Brevard County for the murder of Ms. Scharf. Petitioner was convicted of murder and sentenced to death in Brevard County, Florida, in 1983. "When the jury could not reach a unanimous verdict, the court declared a mistrial. On retrial the jury convicted Stano as charged and recommended the death penalty, which the trial court imposed." Stano v. State, 473 So. 2d 1282, 1285 (Fla. 1985).

5. No physical evidence, contraband, eyewitness testimony, or forensic evidence of any kind connects Petitioner to this or any other homicide. The only evidence against Petitioner in the trial that ended in a hung jury was his confessions to Paul Crow from March 1981 in Volusia County, and to another officer whom Paul Crow had Petitioner speak with later. The jurors could not convict. The only additional evidence against Petitioner in his second Brevard trial was the testimony of an inmate, Clarence Zacke, who testified that after the mistrial he decided to come forward and report that Petitioner had confessed to him as well.

6. With respect to this Brevard County judgment, Petitioner sought state post-conviction relief that was summarily denied. Stano v. Florida, 497 So. 2d 1185 (Fla. 1987). Petitioner filed a petition for writ of habeas corpus in the United States District Court for the Middle District of Florida. He alleged: a.) that the State used Clarence Zacke as a state agent to elicit statements from Petitioner, in violation of United States v. Henry, 447 U.S. 273 (1980); and b.) that Paul Crow had in 1980, 1981, and 1982 colluded with Don Jacobson and Howard Pearl, Petitioner's then defense attorneys in Volusia County, to convict Petitioner, and that their unrevealed collusion violated the principles embodied in Brady v. Maryland, 373 U.S. 83 (1963).

7. The federal district court summarily denied relief on these claims. The circuit court reversed the district court and ordered an evidentiary hearing. Stano v. Dugger, 901 F.2d 898 (11th Cir. 1990).

8. On remand, Respondent filed a motion for summary judgment. Respondent's motion was accompanied by the affidavit of Don Jacobson, one of the attorneys who represented Petitioner in March, 1981, before the later 1983 trial. Jacobson's affidavit said that Petitioner's confessions in 1981 were in return for a state promise of life imprisonment.

9. Because in it's Jacobson affidavit the State conceded--after twelve years--that Petitioner's Scharf confession was the result of promises, Petitioner filed a Motion for the Court to Recognize, or for the State to Stipulate, that the March 6, 1981 Confession Introduced Against Petitioner Was Unconstitutionally Obtained. The State then disavowed its Jacobson affidavit. District Court Record, R7-108. Petitioner then filed Petitioner's Motion and Offer to Stipulate that the State is Correct that Petitioner's March 6, 1981, Confession Resulted from Promise of Benefit or Reward. R7-115. The district court denied the Motion for the Court to Recognize. R7-120.

10. An evidentiary hearing followed. Current and former law enforcement officers testified about the Petitioner's confessions. All, including Paul Crow, testified that Petitioner had been promised life imprisonment for any case to which he confessed and that his 1981 confessions were the result of these promises. Tape recordings of interrogation sessions revealed the promises, countless letters from Petitioner to Jacobson recited the promises, and no one denied that Petitioner was promised life for confessions in 1981.

11. After this hearing, the district court made extensive fact-findings on the Brady and the Henry claims. The district court made no fact-findings or conclusions of law with respect to whether Petitioner's confession in 1981, resulting from a promise that he would not receive the death penalty, was involuntary. The district court denied relief, R8-160, but granted a certificate of probable cause to appeal because "of the disputed issues of fact." Petitioner appealed.

12. On appeal, the circuit court did not address the issue of involuntariness vis-a-vis promises, and did not conduct plenary review of the involuntariness issue.

13. Thereafter, Petitioner sought certiorari review. Respondent contended in response that there had been no ruling on the involuntariness of confessions issues. Certiorari was denied. 14. In March 1997, a death warrant was signed. Until very recently, Petitioner received no meaningful legal representation with respect to his pending execution date.

 III. ARGUMENT

With respect to Claim I, the lower Court wrote that because undersigned counsel, Mark E. Olive, learned about the Zacke recantation in May 1997, but did not include any claim about that recantation in a Rule 3.850 Motion until this week, the claim was barred. The lower court also refused to so much as consider, much less address, the Petitioner's motion to allow him to introduce evidence contained in a tape recording, see Motion to Determine Admissibility of Evidence (filed below, and provided to this Court), evidence that would both prove the claim for relief and explain why the claim had not been earlier raised. In these decisions the lower court erred, and this case should be returned to the lower court for an evidentiary hearing on Claim I.

As was shown in the Rule 3.850 Motion, and as will be shown herein, Zacke has recanted and his recantation implicates now-Judge (then prosecutor) Dean Moxley and assistant state attorney Chris White in soliciting false testimony from Zacke at Petitioner's re-trial. Petitioner will also show that Mr. Stano's attorney here, Mr. Olive, has acted completely properly in a difficult situation and that he ought to be thanked, not blamed, for delivering pertinent information to the FDLE and thereby to the Brevard State Attorney's office and, ultimately, to this Court.

Finally, counsel has asked both this Court and the lower court for guidance on whether counsel may use an audiotape in support of this Claim for relief. Counsel has to this point filed under seal those matters which it seemed prudent to seal. No Court has seen fit to allow the use of the sealed material. Consequently, counsel must unseal the materials here, and present them, rather than risk irreparable harm to Mr. Stano.

 A. Clarence Zacke Recanted, His Recantation

Was Tape-recorded, and the Only Reason this

On May 2, 1997, undersigned counsel met with, and delivered materials to, an agent with the Florida Department of Law Enforcement in Tallahassee, FL. In response to a later Chapter 119 request filed February 17, 1998, by undersigned counsel, the FDLE released to undersigned counsel the materials counsel had delivered earlier, and FDLE internal documents regarding what had been delivered.

The materials released to undersigned counsel tell the story of how the tape came to be obtained, what it says, and why counsel has not been able to use it. Those materials are attached hereto as Attachment 1. They relate the following:

In August, 1997, undersigned counsel contacted FDLE Agent Ellis and asked what had become of the tapes. He stated that he had forwarded all the material to the Melbourne office of the FDLE, and to the Brevard County State Attorney's Office.

 B. The Brevard State Attorney's Response to a

Public Records Request Created the Problem

On January 27, 1998, undersigned counsel contracted with CCRC to represent Mr. Stano. On February 4, a partial payment of funds to begin the representation was made to undersigned counsel. On February 17, 1998, undersigned counsel filed a Public Records Act

request with FDLE regarding the very tape counsel had earlier turned over. An investigator working on counsel's behalf filed a Public Records Act Request with the Brevard County State Attorneys Office on February 16, 1998. Because the FDLE and the State Attorneys Office responded in different ways to the Chapter 119 requests, undersigned counsel did not know whether he was entitled under Florida law to use the tape recording referred to above.

In response to its Chapter 119 request, the FDLE turned over everything that it possessed regarding this matter, including the tape and other documentation. See Attachment 1, hereto. The material reveals just what is pled above. The FDLE copied the tapes that undersigned counsel had earlier provided to the FDLE, and gave the copies to undersigned counsel. Counsel received the tapes from the FDLE on February 11, 1998.

However, the 119 response from Robert Wayne Holmes--an Assistant State Attorney to whom the FDLE had forwarded copies of the materials provided by undersigned counsel--was:

Section 119.07(3)(b) exempts from disclosure any "[a]ctive criminal intelligence information and active criminal investigative information." Florida statutes 934.08 deals with how and when a law enforcement officer may use or disclose illegally recorded conversations.

Thus, one law enforcement agency saw no crime, and another law enforcement agency said that it was investigating a crime, with respect to the same material. Notably, it is the agency which, itself, has been accused in this Claim of wrongdoing at trial--the Brevard County State Attorney's Office--that said it had an ongoing criminal investigation.

 C. What Was Undersigned Counsel to Do?

Undersigned counsel provided to the FDLE evidence of several possible crimes. First, it may have been a crime for Art to record the Zacke call. Second, it may have been a crime for Chris White and Dean Moxley to tell Zacke to lie. Third, it may have been a crime for Clarence Zacke to lie.

But the worst thing for Petitioner's counsel was that if it was a crime for Art to record Zacke's call, it would also be a crime for undersigned counsel to disclose what was on the tape. Thus, undersigned counsel charted a course that would protect the Petitioner and not harm counsel--undersigned counsel filed the FDLE materials (without the tapes) under seal in this Court. This Court then directed the matter to the lower court.

But the lower court did not resolve the issue. The lower court would not even consider the issue of the materials that were placed under seal here, and would not even consider whether the sealed materials were in any way relevant to the questions before the lower court. Thus, when the lower court denied relief on this Claim by writing that undersigned counsel had known about the tapes since May of 1987 and so should have raised the issue, the court missed the point that undersigned counsel did not have the tapes, the FDLE and the State Attorney had the tapes, because undersigned counsel had given them the tapes--undersigned counsel did not have them, the law enforcement community did.

 D. What Zacke Says

The state could not convict Petitioner at the first trial because, as prosecutor Moxley told the trial court, the jurors had trouble with the only proof in the case--confessions to Paul Crow and Johnny Manis. On re-trial, the State presented the additional testimony of Clarence Zacke. Zacke said that Mr. Stano told him that he had killed the victim, and had tortured her first. The prosecutor relied heavily on this evidence from Zacke. See State v. Stano, 473 So.2d 1282, 1289 (Fla. 1985) (referring to "Stano's confession to a fellow inmate [Zacke] that he alternatively choked and revived the victim"); see also testimony (R. 887-928), and prosecutor argument (R. 1064-1066, 1072-1073, 1075, 1076-1080, 1268, 1273-1274).

When undersigned counsel was uncertain regarding whether he could use the Zacke tape recording, counsel instead obtained an affidavit from the person to whom Zacke recanted--Nash Rosenblatt. According to that affidavit:

Appendix 5, Rule 3.850 Motion.

Thus, Clarence Zacke said to Art that he testified falsely at trial and that the prosecutors knew of, indeed, solicited, the perjury. Under such circumstances, a new trial is required.

The State, through Ken Nunnelley, Esq., argued in the lower court that there had been no recantation by Zacke. Robert Holmes, the assistant state attorney who withheld the tape after 119 requests, sat, silently, and listened as Ken Nunnelley said that Zacke had not recanted.

Mr. Holmes has conversations on tape, and will not release them. In a portion of those conversations the following is said:

Art: Cars? What kind of cars?

Zacke: His Trans Am and my Trans Am.

Art: Trans Am?

Zacke: Yeah.

Art: He had a Trans Am.

Zacke: Uh, hum.

Art: That’s what he told you.

Zacke: Uh, huh. That’s what he told me.

Art: Uh, huh.

Zacke: Anyway, that’s the gist of it. And, uh, ...

Art: Well, let’s just, let’s just, let’s talk about this for a little while.

Zacke: Huh?

Art: Let’s talk about this for a little while. And um, you know, so you guys talked about cars.

Zacke: Uh, hum.

Art: And this is at which exercise yard? At...

Zacke: The jail there, yeah.

Art: In Volusia?

Zacke: No. Brevard.

Art: Oh. In Brevard County Jail. This is...

Zacke: Uh, huh.

Art: Naturally. I’m still asleep I guess.

Zacke: Yeah.

Art: And, uh ...

Zacke: And, basically, let’s see. He didn’t give me no

information. Basically, let’s just say I got it through, from the State Attorney, of names and what went on and stuff like that. I was programmed in other words.

Art: What was the State Attorney’s name?

Zacke: Huh?

Art: What was the State Attorney’s name?

Zacke: Chris White and Dean Moxley.

Art: Dean Moxley?

Zacke: Uh, hum.

Art: And...

Zacke: He’s a judge now.

Art: He... Dean Moxley’s a judge now.

Zacke: Uh, hum.

Art: And, at what point did, uh, did either of these gentlemen approach you?

Zacke: No. It was through my attorney.

Art: Okay. And your attorney’s name was...

Zacke: Joe Mitchell.

Art: Joe Mitchell. Okay. And did Joe Mitchell advise you that this was a good idea?

Zacke: Uh, huh. Yeah. In fact, a very good one.

Art: Okay. And, uh, because you were facing, what?

Zacke: Oh, I was done with that stuff there. This was just so I could get my other stuff back. And curry some favor for stuff down the road which they failed to do.

Art: Uh, huh. So, he, so, uh...

Zacke: So they didn’t live up to everything they were supposed to do.

Art: Right. So your attorney advised you that this was probably your best bet ...

Zacke: Right.

Art: ... at that time.

Zacke: Uh, huh.

See Attachment 2 (tape, one copy filed under seal with original brief).

 E. What Zacke Says Is Evidence of

These facts show that the State knowingly presented materially false evidence at trial and sentencing and that there is a reasonable likelihood that the jurors considered this evidence. Under Florida law, deception by law enforcement officials is forbidden by the State due process clause. Walls v. State, 580 So.2d 131 (Fla. 1991). Furthermore, these allegations, if true, state Sixth, Eighth and Fourteenth Amendment violations. United States v. Agurs, 427 U.S. 97, 103 (1976)(relief is compelled when the false impressions are "material," which means when "there is any reasonable likelihood that the false testimony could have affected the judgment of the jury."); Napue v. Illinois, 360 U.S. 264 (1959); Mooney v. Holohan, 394 U.S. 103 (1935); Routly v. Singletary, 33 F.3d 1279 (11th Cir. 1994); Campbell v. Reed, 594 F.2d 4 (4th Cir. 1979); Boone v. Paderick, 541 F.2d 441 (4th Cir. 1976).

These allegations also show that the State suppressed material exculpatory evidence and that there is a reasonable likelihood that without the suppression the result in the case would have been different. These allegations, if true, also state Sixth, Eighth, and Fourteenth Amendment violations. United States v. Bagley, 473 U.S. 667, 682 (1985); Brady v. Maryland, 372 U.S. 83 (1963).

Finally, these facts of recantation are "of such a nature as to make an acquittal probable on retrial." State v. Spaziano, 692 So.2d 174, 176 (Fla. 1997); Jones v. State, 591 So.2d 911 (Fla. 1991). With only Crow-confessions, the State could not obtain a conviction. That's why they solicited Zacke.

Paul Crow put Mr. Stano on death row. What he has to say about Gerry Stano under oath is the linchpin of the State's case against Petitioner. If Paul Crow is a liar, especially if he is a law enforcement officer who will lie under oath, then this Court may not countenance Petitioner's execution.

The Grand Jurors, the State Attorney for the Tenth Judicial Circuit, and Crow's fellow law enforcement officers say that Crow is a liar who will lie under oath -- especially to protect his cases or his reputation. This is newly-discovered evidence that must now be considered and that forecloses the death penalty, and even the conviction, in this case.

The State says that this is too remote. That Crow's testimony in 1983 at trial, and his legal woes in 1995, are not related. However, the State repeatedly pushes Crow's testimony from 1992 in federal district court as a basis for denying relief in this action. If the State wants Crow to be credible in 1992, then the State must face the lying Crow of the 1990s.

 A. Over Eighty Years of Police Officer Experience Says

Paul Crow had to resign, ultimately, in the aftermath of a Presentment brought on by his bad, heavy-handed, and dishonest police work. See sub-section B, infra. Before his resignation, Paul Crow was a vindictive boss. Petitioner pled in the lower court that the reason he had not previously submitted evidence of Crow's bad reputation for truth and veracity in the community was that police officers were afraid to come forward to tell the truth. The presentment itself verifies this fact.

Slowly the truth emerges. Crow's fellow officers now say, under oath, the most remarkable and damning things about Paul Crow--that he is a liar, that he will lie under oath to protect himself or his cases, and that the Petitioner ought not to be executed based upon Crow's testimony. This is police officer testimony.

This newly-discovered evidence is admissible, and it would prevent a conviction and death sentence upon re-trial. See Jones, supra; Spaziano, supra.

Detective Robert Walker swears that Crow is a liar and that Mr. Stano ought not to be executed on Crow's word:

.....

.....

.....

Appendix 7, Rule 3.850 Motion.

Former Officer Edward Shumaker says the same, and more:

....

Appendix 8, Rule 3.850 Motion.

Sergeant Wisneski has similar information:

....

Appendix 9, Rule 3.850 Motion.

Officer Jeffrey Candage agrees:

4. Crow ran his office with fear and intimidation.

Appendix 10, Rule 3.850 Motion.

Finally, Officer Mittleman show both that Crow is not to be believed, and why Officers have not come forward before:

....

Affidavit, submitted below and provided earlier to this Court.

These affidavits were provided in the last few days, after Petitioner was finally able to obtain the services of an investigator. See Argument VI, infra. Crow's testimony at trial cannot be believed. His testimony in the federal evidentiary hearing also cannot be believed.

 B. Grand Jurors and Prosecutors

Jerry Hill is the state attorney in the Tenth Judicial Circuit. By order of Governor Chiles, Mr. Hill was appointed to investigate Paul Crow's actions with respect to allegations that Crow had obstructed justice. Mr. Hill's investigation included convening a grand jury. Mr. Hill and his grand jury came to various conclusions about Paul Crow, none of them good.

The most important conclusion Governor Chiles' prosecutor came to was that Crow is not a credible witness under oath, especially when Crow is trying to defend his own law enforcement actions. This conclusion is newly discovered evidence vis-a-vis Mr. Stano: Crow's credibility under oath was critical in Mr. Stano's trial. Crow testified to many, many confessions, and he testified that they were voluntarily obtained.

This is what prosecutor Hill and the grand jury says about Crow:

Appendix 6, Rule 3.850 Motion.

 ARGUMENT III

In 1997, undersigned counsel was contacted by Andy Campanaro, a person who stated that he had audio tapes of Crow from 1986. Campanaro stated that he was a free-lance writer and that he had to come forward because he could not let Gerald Stano be executed without revealing what he knew. Campanaro stated that he had collaborated with Crow on a book for profit in 1986, that he had recorded many of his conversations with Crow, with Crow's permission, and that, based upon his conversations with Crow, he did not believe that Mr. Stano had killed anyone.

Counsel asked that the Circuit Court for Volusia County provide funds for an investigation into the tapes. Counsel filed a motion under seal. The trial court ordered the motion unsealed, the state responded to the motion, and the court denied funds to obtain and review the tapes. See Appendix 12, Rule 3.850 Motion. That decision is on appeal to this Court.

After undersigned counsel received funds from the CCRC, see Argument VI, infra, the Campanaro tapes were reviewed.

it When he Testified at Trial, and He

.....

---------------------

For real.

Crow says on the Campanaro tapes that Stano lied to police officers about whether he was guilty of murders. Crow says that in cases where other agencies were involved and Crow was not in control, Stano's confessions would not match the facts at all. On the Campanaro tapes, Crow described his feelings when this--Gerry relating false "confessions" in front of other officers--happened: it was like "watching the ice-cream melt in my hands" or "watching everything that he's saying going to hell, because I know the son-of-a-bitch didn't do" the crime to which he was falsely confessing.

Crow did not tell trial defense lawyers this information, much less post-conviction counsel. When Crow commented about Stano on the tapes in 1986 "I'm watching the son-of-a-bitch [Stano] melt in front of my hands," Campanaro said, "If this gets picked up by Olive and he goes along this line, they're going to bring something like that up." "Sure," Crow responds.

This requires some explanation. Crow described on the Campanaro tapes driving around in St. Petersburg with other investigators. According to Crow, Stano would point out a spot where Stano said a body was left. Stano was wrong, and Crow's response to himself--as recorded on the tape--was: "I'm going, 'Jesus.'" Crow said: "And we leave and come back to Daytona, and I lay some facts on him [Stano]. I [Crow] said, 'I don't think you did that one, Gerry.' Stano goes: 'It looks so familiar.' I [Crow] said, 'Familiar my ass.' I [Crow] said 'You probably heard us talking about it or something, but you didn't do that one.'" Crow said he told Stano that Stano was acting "goddamn binockers." Crow said he advised Stano: "You know they got a suspect in that case," and Stano said "They do?" Crow said "yeah."

Crow said on the Campanaro tapes "I don't think Stano's all there personally. I think we got him 20% of make believe, but if you tell that to a judge, you tell that to a public defender, he'll use that." See Brady v. Maryland, 373 U.S. 83 (1963)(you should tell that to a public defender or a judge [its in the constitution]).

This information was kept from the federal as well as the state courts before now. Unless defense counsel had gone door to door, world-wide, he would never have found Andy Campanaro. based upon that to which paul Crow testified in federal court, no-one existed who would have such tapes of Crow.

The tapes reveal that Crow dealt dishonestly and unfairly with the Petitioner, this case, and the courts. In Walls v. State, 580 So.2d 131 (Fla. 1991), this Court held that the Due Process Clause of the Florida Constitution provides special safeguards against law enforcement misconduct:

Walls, supra, 580 So.2d at 133 (citations omitted). When law enforcement conduct "fails either to be fair or honest ... due process is implicated and the court are required to conduct an intensive scrutiny of the police conduct in question." Id. "Gross deception used as a means of evading constitutional rights has no place in such a system." Id., 580 So.2d at 134.

The lower court was required to closely examine the State's conduct and to hold the State accountable for any dishonesty, under Walls. The record in this case shows beyond cavil that Crow was neither honest nor fair in his testimony under oath.

 B. To The Extent that the State Relies Upon

Court

 1. The Movie Rights Lies

In 1992, Crow testified in federal district court regarding his involvement in Petitioner's case. Whether Crow intended to write a book about Petitioner was central to the district court's later findings. Law enforcement officers testified that Crow did intend to write a book, that he intended to make a lot of money from the book, and that his objective in working with Mr. Stano was to "solve" as many homicides as possible to make the book more interesting and more marketable. See Appendix 11, pp. 65-68, Rule 3.850 Motion.

The district court heard Crow's testimony, which contradicted the other officers' testimony. Nevertheless, the Court relied upon Crow's testimony. The district court judge found that, from Crow's testimony, Crow had at one point entertained the notion of writing a purely educational book, but that he never had had any interest in being famous and had made no efforts to land a deal. At most, Crow wanted a "treatise ... to explain to law enforcement agencies how to deal with conflicts among jurisdictions investigating cases ...." R8, 160, 36. Crow, was, according to his testimony, "a person who finds himself, because of unique historical events, in a position to make a scholarly contribution to law enforcement ...." Id., at 38. Balderdash! From the Campanaro tapes plainly Paul Crow had, contrary to his district court testimony, fully intended to make a mint off the Stano story from day one. In federal district court, Crow swore under oath to the following about his intentions to write a book:

(P. 229, Jan. 24, 1992).

This was very, very, false. Crow then testified that he had talked with one person, Terry Ecker, about collaborating on a book, but that Ecker's style was too graphic, and magazine-like, for Detective Crow, who was only interested in educating people. (P. 210, Jan. 24, 1992). Crow testified that he did not personally speak to any literary agents, and that the only contract negotiations he ever had were with Terry Ecker. Mark Olive:Did, other than Mr. Ecker, Terrell Ecker, did you pursue your aspirations of publishing a work of art or education by -- did you pursue it by speaking with persons other than Terrell Ecker?

(p. 230, Jan. 24, 1992).

This was untrue. The tapes reveal that Crow lied in federal court in 1992 when he said that he had not pursued deals with respect to a Gerald Stano story. On the tapes he pursues deals in 1986, and reports the pursuit of deals from years earlier.

The tapes reveal that Crow was marketing the Stano story and trying to sell it to the highest bidder. Campanaro was bidding against other authors and publishers for Crow's story. Crow told Campanaro that Crow had solicited advice on how to market his Stano information from a writer or publisher by the name of Beach as early as 1983 or 1984. Crow said Beach was one of the big "muckity mucks" from Reader's Digest. According to Crow, Beach read every fiction and non-fiction police type story that authors were trying to sell and then Beach would offer advice to would-be authors regarding "what's going to go and what's not going to go." According to Crow, Beach told Crow how best to market the information Crow had. Crow said that Beach told Crow "the story has the chemistry of being one of the better ones he's seen coming down that road in a long time."

On the tapes, Crow told Campanaro about various agreements he had or that he was negotiating about Stano. He said that he had an agreement with a writer, and that under that agreement Crow said he would receive fifty percent of the profits. Crow said the book would most likely be written by that author but that the story would be in the form "as told to the author by Paul Crow" book. Paul Crow said the author was very accomplished and had published a lot, including two screenplays. Crow was negotiating with Campanaro by using the fact that other authors were bidding on his story.

In his negotiations, and on tape, Crow offered "exclusive" material. For example, Campanaro wanted to speak with Mr. Stano, but could not arrange that. Crow told Campanaro that he had a stack of letters from Stano six inches high, and he showed the stack to Campanaro. Campanaro told Crow that if he could get ahold of that stack of letters he would not need to speak with Stano. Crow laughed and said, "I've got alot of aces. You know, I've got a lot of aces in the hole. You can go to any county you want, try to look up anything you want to. But what you really need, I've got. That's what I'm saying. I've got all the letters; I've got all the tapes."

The Campanaro tapes reveal that Medallion Books has offered Crow $8,000.00 flat as a collaborators's fee. Campanaro says on tape that Crow says that Crow wants from Campanaro ten percent of all rights to the Stano story: international, hard-cover, screen, anything like that.

The Campanaro tape shows that Crow's testimony in federal court regarding his motivation and interest in writing a book and receiving profits from a Stano story was one big lie.

 2. Officer Jim Gadberry

Jim Gadberry was the officer who first arrested Gerry Stano. In 1986, Officer Gadberry came forward and said that he did not believe Gerry Stano committed any murders. Gadberry described how Stano was told all the facts of the crimes before he confessed, that Stano did not independently know the facts of any of the cases, and that Stano simply did whatever he was told by Crow to do.

In his testimony in federal court, Crow attempted to discredit Gadberry by averring that Gadberry's concerns regarding Petitioner's arrest and conviction was of a recent vintage. One way in which he did so was by testifying that Gadberry had never voiced any concerns to Crow about Stano's confessions:

(Jan. 29, 1992, Vol. 19, p. 78)

(Jan. 29, 1992, Vol. 19, p. 103)

(Jan. 29, 1992, Vol. 19, p. 220).

On the Campanaro tapes, six years earlier, Crow says otherwise. Crow reviews the Stano case in great detail with Campanaro. Crow says on the tape that Jim Gadberry had always had concerns about the Stano case, from the very beginning. Crow said that Gadberry's concerns all along had been that Stano was just a serial confessor, not a mass murderer, and that the judges and lawyers had shafted Stano and sent him up the river.

The evidence that Paul Crow lied and will do so under oath is inescapable. His fellow officers say under oath that a person cannot be executed on Crow's sworn word, because his sworn word is a lie. Crow's sworn word is contradicted by his taped conversations. His taped conversations reveal that Crow intentionally kept exculpatory information away from judges, public defenders, and post-conviction counsel for Mr. Stano.

 ARGUMENT IV

The evidence at Mr. Stano's first trial was confessions to Paul Crow. At the retrial, the testimony of Clarence Zacke was added. The first jurors were unable to reach a verdict based on confessions alone. Had there been evidence to attack the confessions, this case would not have gone beyond a first trial. There would have been an acquittal.

Evidence was available, but Paul Crow lied under oath and has continued to lie under oath about how the confessions were obtained.

Paul Crow was a detective in the Daytona Beach Police Department at the time he met Gerry Stano in 1980. Daytona Beach is in Volusia County. Over a period of many, many months, Crow interrogated Petitioner in Volusia County about unsolved homicides. The trial in the Brevard County case in which Ms. Scarf was the victim, occurred in 1983. The confession to Crow about the Scharf case occurred in March, 1981, in Volusia County, while Crow was obtaining confessions about other Volusia County cases.

In Brevard County, Crow testified about the March, 1982, confessions. He swore:

A. No, sir.

Id. at 2068-69.

Id. at 1427.

Id. at 868.

This was all completely untrue, as was later proven. In federal court Crow admitted under oath that the very reason Petitioner provided statements to him--the statements to which he was referring in the above-excerpted quotes in state court--was because Crow and others had offered Petitioner "benefit or hope of reward," "promises or ... inducements or hope of reward," and "inducements whatsoever." Id. Crow had offered, nay, promised, a life sentence for all confessions, at the time that Stano "confessed" to Crow regarding this Brevard County Scharf case.

This is new evidence of fraud before this Court and obstruction of justice. This is evidence of fraud that was not addressed by the federal courts. The federal district court in the federal proceedings did not determine whether Crow had told the truth at Petitioner's trial with respect to how the confessions were obtained. The federal court did not address whether the Petitioner had been promised life imprisonment in return for confessions, and whether that rendered his confessions unreliable and involuntary because induced by promises.

However, Paul Crow and others did testify about these matters in federal court, and, for the first time, admitted that Petitioner had been promised life imprisonment in return for confessions. If Crow and others told the truth in federal court, then the conviction and sentence in this case must be set aside.

Until Paul Crow and others testified under oath in federal court, Petitioner could not prove that his confessions had been obtained by promises of life imprisonment. These matters are cognizable now. The federal court did not address or resolve these matters. Under Florida and United States Constitutional law, Mr. Stano is entitled to relief.

In sub-section A, infra, Petitioner places the lies by Crow in context. The jurors in Petitioner's first trial were concerned about the confessions. Had Crow told the truth about how he obtained confessions, there is a very real probability that the confessions would have been suppressed and/or Mr. Stano would have been acquitted at his first trial. In sub-section B, infra, Petitioner presents the, we now know, false testimony from pre-trial, mistrial, re-trial, and sentencing proceedings. In sub-section C, infra, Petitioner presents the evidence from the later federal proceedings, which shows that the trial testimony was false. In sub-section D, infra, Petitioner shows that the decision in federal court does not affect Petitioner's right to relief now in this Court. In sub-section E, infra, Petitioner shows that he is entitled to relief based upon the sworn testimony that was actually given in federal court, or that he is entitled to an evidentiary hearing in this court.

Petitioner's first trial in the Scharf case ended in a mistrial. The only evidence against the Petitioner at this trial was his confession in March, 1981, and his confession in August, 1982. After asking to listen again to the testimony regarding these confessions, the jury hung.

After deliberations began, the jury wrote a note to the court asking for a tape player. Trial Transcript, at 1583 (jurors note at p. 2365--"We need tape player for playing tape."). Dean Moxley mentioned, correctly, to the Court: "It looks like they are focusing in right on the issue right now." Id. at 1585 (Volume IX). The jury was allowed to hear the tape from August 12, 1982. Id at 1587.

Three minutes later the jurors delivered another note to the court. The jurors asked for scotch tape, which was provided. Id. at 1588. Fourteen minutes later, the jurors sent in another note asking "[d]o we have a transcript of the trial testimony available to us or a tape of testimony?" Id. The judge wrote the jurors back: "Do you wish an entire transcript or just specific portions--if just portions, please specify." Id. at 2365.

Shortly thereafter, the jurors sent out another note. It read: "An entire transcript would eliminate the need to ponder further points of testimony in question." Id. at 1591. The judge brought the jurors into the courtroom and told them that an entire transcript was not available. Id. at 1593. The jurors retired to deliberate more.

Around two hours later, the jurors returned with another written question: "We find we require the transcript of Manis, Crow, Hudson, Sylvia, and Naida Loudon." Id. at 1595. It was 9:00 p.m. The jurors were excused for the evening without the requested transcripts. Id at 1596.

When court convened the next morning, the prosecutor, Dean Moxley, argued that the jurors should be provided the requested transcripts. It was his view that, inasmuch as the jurors had already heard the tape recorded "confession" from the petitioner, obviously the jurors "want[ed] to hear the oral [non-recorded confessions. [i.e., the one to Paul Crow]." Id. at 1601-02. Specifically,

Id. at 1602 (comments of Dean Moxley).

The judge declined the jurors' request and instructed them to rely upon their collective memories. Id. at 1606. Six hours later the jurors returned and said: "We have not come to a unanimous decision after voting several times. It does not seem like this decision will change to the contrary." Id at 1607. An Allen charge was given.

Twenty-four minutes later, the jurors returned with a note asking what the Allen charge meant. Id. at 1611. The Court declined to give the jurors any further instructions.

An hour and a half later, the jurors returned with a note that said: "After perusing the facts, again, we have failed to reach a unanimous decision." Id. at 1612. The Court declared a mistrial.

 1. Pre-trial

Before the mistrial, Paul Crow was deposed on July 21, 1983, and discussed the cases against Petitioner. He swore that as to the March, 1981, Scharf statement to Crow, he and the Petitioner were simply discussing "a series of different things he had done," and

Id. at 25.

Crow testified at this deposition that when Petitioner told him about the Scharf case in 1981, Petitioner had no reason to expect that he would not get the death penalty:

Id. at 28.

On May 9, 1983, Crow gave another sworn deposition. He swore that on March 6, 1981, he and the Petitioner were in the Daytona Beach Police Department Library with Officer Dave Hudson. Crow swore that the Petitioner was discussing several cases and simply confessed to Scharf, discussing the facts for "fifteen to twenty minutes." Id. at 6.

Paul Crow testified at the Jackson v. Denno hearing. Dean Moxley elicited the state's testimony at this hearing. Crow testified that on March 6, 1981, he was interviewing the Petitioner "in regards to other homicide cases." Trial Transcript, Volume VIII, p. 1422. He testified that Petitioner was being interviewed in the law library regarding murder victims Neal, Bickrest, Heard, and Hamilton.

Crow specifically denied that Petitioner had been promised anything in return for confessions:

Id. at 1427.

Crow then testified that Petitioner told him about the Scharf murder. Id. at 1429-1433, 1435, 1440.

The trial judge found the March 6, 1981, statement to have been made voluntarily. Id. at 1441.

Johnny Manis also testified at the Jackson v. Denno hearing. He stated that on August 11, 1982, he went to the Daytona Beach Police Department and the first person he saw was Paul Crow. Trial Transcript, Volume VIII, p. 1380. He testified that he had interviewed Petitioner before at Florida State Prison on January 20, 1982. Id. at 1381. On August 11, 1981, he interviewed the Petitioner in Crow's presence in an office adjacent to Crow's office. Id.

They then talked about a lot of things, and got around to the Scharf case. They talked for an hour to an hour and a half, and Crow was present "forty or fifty percent of the time." Id. at 1385. Manis stated that after discussing the Scharf case he asked the Petitioner if he could return the next day and tape record a confession, and Petitioner agreed. Id. at 1391.

Manis said he went back the next day and Crow was present at the beginning of the interview. Manis testified that he tape recorded a confession regarding the Scharf case. He also testified that when he earlier interviewed the Petitioner, without Crow, on January 20, 1981, for two hours, the Petitioner did not admit to the crime. Id. at 1402. Stano told him he did not know about the offense.

On cross-examination, Manis said that on August 12, 1981, he did not advise the Petitioner of his Miranda rights before he interviewed him. Id. at 1405. Manis testified that when he came in the interview room on August 11, 1981, Petitioner and Crow were already there. Manis stated that he did not know what Crow and Petitioner had been discussing before Manis' arrival. Id. at 1405-06.

The trial judge found the August 11, and 12, 1982, statements to have been voluntary. Id. at 1415.

 2. Trial testimony at Mistrial

Paul Crow testified before the jury at the trial that ended in mistrial. Crow testified that on March 6, 1981, he saw the Petitioner and questioned him in the presence of Dave Hudson. Trial Transcript, Volume XII, p. 2067. Crow testified that he advised the Petitioner about and the Petitioner waived each of his Miranda rights. Crow then testified as follows:

A. No, sir.

Id. at 2068-69. Crow testified that upon hearing the confession, he telephoned the Titusville Sheriff's office, and then wrote a letter to the Titusville Sheriff's office. Id. at 2070. Crow outlined Mr. Stano's March, 1981 confession.

On cross-examination, Crow testified that when Mr. Stano gave this statement, he was aware that it could be used against him and that he volunteered the information anyway because he was "very cooperative." Id. at 2074. Crow said that the Petitioner did not know how the victim had been killed, either shot or stabbed. Id. at 2077-78.

Also on cross-examination, Crow testified that Manis talked to Mr. Stano in August, 1982, a year and a half after the March, 1981, Scharf statement. Id. at 2073. Crow testified that when Manis interviewed the Petitioner, the personnel in the jail were under orders not to allow Petitioner to have contact with anyone at all unless it was cleared through Crow. Id. at 2080.

Dave Hudson then testified. He swore that he was with Crow and Petitioner on March 6, 1981, in the legal advisor's office at the Daytona Beach Police Department. He testified that Petitioner waived his rights and made a statement regarding Scharf. Id. at 2085.

Johnny Manis testified that he interviewed the Petitioner on August 11, 1981, in the Detective Division of the Daytona Beach Police Department. Trial Transcript, Volume XI, p. 2004. Paul Crow was present. Manis repeated the testimony that he gave at the Jackson v. Denno hearing. He then testified to what the Petitioner supposedly said regarding Scharf, and testified that he did not have a tape recorder so he asked for and received permission to return the next day. Id. at 2015-16. He testified that he returned on August 12, 1982, and recorded the Petitioner's statement. The tape was played for the jurors. Id. at 2019-2035.

On cross-examination, Manis admitted that on January 20, 1982, when he first interviewed the Petitioner, the Petitioner said that he "wished he could help us with our case, but he didn't know anything about it." Id. at 2037 He testified that on August 11, 1982, when he entered the interrogation room, Crow and Petitioner were already there together. Id. at 2038. He testified that Crow "arrange[d] the meeting." Id.

 3. Testimony at Re-trial

The state tried Petitioner a second time. In opening statement, the State explained its primary evidence:

Trial Transcript, Volume IV, p. 609. The prosecutor conceded that "there will be other witnesses, but those [Crow, Hudson, and Mannis] are the main ones." Id. at 610.

Moxley called Paul Crow to testify. Crow testified that he interviewed the Petitioner on March 6, 1981, at the Daytona Beach Police Department in the legal library. Trial Transcript, Volume V, at 866. Moxley elicited the following:

Id. at 868. Crow said that Hudson was present, and that the Petitioner confessed to the Scharf case. Id. at 869.

Crow then testified to what Petitioner purportedly said at that time with respect to Scharf.

Manis testified under Moxley's questioning that on August 11, 1981, he went to the Daytona Beach Police Department and met with Crow. Id. at 968. He said that Crow took him across the hall into a vacant office and Petitioner was sitting there. Id. He testified that he interviewed the Petitioner without turning the tape recorder on, and then asked if he could return that next day and record a statement. Id. at 971 Manis testified to what Petitioner purportedly said about the Scharf case on August 11, 1981. Manis then testified regarding the taking of a tape recorded statement on August 12, 1981, and the tape was played to the jurors. Id. at 983.

On cross-examination, Manis testified that on January 20, 1981, he interviewed the Petitioner, who told him "he wished he could help me with my case, but he didn't remember anything about that." Id. at 1000.

In closing argument, the state stressed that the Petitioner had confessed on "three separate occasions." Trial transcript, Volume VI, p. 1074. In explaining why Petitioner had not talked to Manis about Scharf in January, 1981, the state argued:

Id. at 1084.

The Petitioner was convicted.

4. Sentencing

Before sentencing began, Moxley argued that he should be allowed to introduce details of prior offenses, including confessions, photographs, and autopsy protocols. Trial Transcript, Volume VII, p. 1151. The court agreed.

Eight prior convictions -- all guilty pleas, and all based solely on confessions -- were introduced at the Scharf sentencing proceeding. In each of the cases used in aggravation by the state, confessions, and only confessions, provided the basis for convictions.

In closing argument, the state stressed that all of the confessions and convictions, in aggregate, justified the death penalty.

The jurors recommended a sentence of death by a vote of 10 to 2.

Crow Lied in State Court

The state conceded in federal court--after ten years--that confessions obtained from Petitioner in 1981 and 1982, the confessions in this case, were the result of promises of life imprisonment. Further, the State conceded in federal court that the effect of promises of life imprisonment--i.e., that resulting confessions are involuntary and unconstitutional--had not yet been litigated in state or federal court. This is Petitioner's first opportunity to present the lies from trial after the state admitted the lies in federal court.

In federal court, the State submitted the affidavits of Don Jacobson and Paul Crow, stating that Petitioner was offered life to confess to cases in Volusia County in 1980, 1981, and 1982. Federal Court Docket No. 7, at 2-3. The State's witnesses in federal court--Crow, Jacobson and Nixon--all testified in the district court that Petitioner was offered life imprisonment to confess. Petitioner's witness, Steven Lehman, a former Volusia County deputy, testified the same.

This testimony, in sum, led the state to write in its federal court briefs the following:

Thus, it is beyond dispute today that everything Paul Crow said at trial regarding the 1980, 1981, and 1982 confessions--including the Scharf confession--was false. It is false that when Crow was obtaining these confessions he did not know what would come of them. It is false that these confessions were not prompted by promises of life imprisonment.

The Respondent now admits that promises were made, but contended in federal court that the promises did not reach as far as the Scharf case because Petitioner had only been promised life imprisonment for Volusia County cases, not Brevard County cases like Scharf. This argument is irrelevant, inconsistent with the State's position at trial regarding why Petitioner confessed, and factually inaccurate.

First, the argument is irrelevant. The Respondent now agrees that Petitioner was not confessing out of a spirit of blind cooperation, as was sworn to at trial, but out of motivated self-interest. According to Respondent today, when Petitioner supposedly confessed to the Scharf case in March, 1981, he did so because he "wanted to reap the benefit of the plea bargain but got his facts confused." Respondent's federal court brief at 47 (emphasis added).

Under this scenario, contrary to what the jurors, judge, and lawyers were told in 1983, Petitioner was with Crow confessing to murders because he had been told that he would receive life imprisonment for the confessions. In the midst of these confessions, which were made in the hope, and with the guarantee of reward, Petitioner, "wanted to reap the benefit of the plea bargain but got his facts confused," Respondent's Brief at 47, or "became confused" and "volunteered information" regarding the Scharf murder that was not, under the Respondent's current scenario, covered by the "deal." Id. at 24. Thus, while trying to obtain a promised benefit, the Petitioner, coached to please, became confused and confessed. See also District Court opinion at 39-40 (Scharf confession occurred "[d]uring Stano's confessions on March 12, 1981, as part of his plea agreement ....."). It is not relevant under a totality of the circumstances analysis that Petitioner was confused about whether what he was saying was what the state wanted to hear. What is relevant is why he was saying it.

Second, the Respondent's current theory is inconsistent with the theory presented at trial. According to the state's trial argument, when the Petitioner confessed to the Scharf case in 1981 he did so "because in his own mind he believed it occurred in Volusia County, Florida, not Brevard, because it was so close to the [county] line." Trial transcript at 1084 (state's closing argument). Under this theory, Petitioner was not confused, he was just wrong, but he nevertheless had relinquished his right to silence for only one reason--he had been promised a sizeable benefit or reward.

Finally, the person interrogating the Petitioner did not believe that there was any territorial limit on the deal. One of the very things that Crow wanted was confessions to any case in which the victim was picked up in Volusia County and was killed or left somewhere else. R17-138. According to the State's theory, Ms. Scharf was picked up in Volusia County and left just over the county line in Brevard County.

According to counsel for Respondent, while evidence was clearly presented in federal court showing that Petitioner's confessions were not voluntary, the issue of the involuntariness of Petitioner's confessions based upon the promises of life imprisonment was not decided by the federal courts. And, indeed, it is true that the federal courts did not address whether the confessions involved in this case were involuntary because prompted by promises.

 E. Relief is Required

 1. Law Enforcement Officers May Not Lie in Court--The

Florida Constitution

Crow lied in Court, and Petitioner is on death row. This is unconscionable.

In Walls, supra, this Court held that the Due Process Clause of the Florida Constitution provides special safeguards against law enforcement misconduct. When law enforcement conduct "fails either to be fair or honest ... due process is implicated and the court are required to conduct an intensive scrutiny of the police conduct in question." Id. "Gross deception used as a means of evading constitutional rights has no place in such a system." Id., 580 So.2d at 134.

Florida Courts are required to closely examine the State's conduct and to hold the State accountable for any dishonesty, under Walls. The record in this case shows beyond cavil that Crow was neither honest nor fair in his testimony under oath.

2. Unconstitutionally Obtained Statements

To determine whether a confession was involuntary, a court must examine the entire record:

Withrow v. Williams, 113 S.Ct 1745, 1751 (1993)(citations omitted). See also id. ("Under the due process approach ... Courts look to the totality of the circumstances to determine whether a confession was voluntary.... Each claim ... present[s] a legal question requiring an 'independent federal determination' on habeas.")(citation omitted).