One For Ten: Juan Melendez Legal Review

7/30/2019 One For Ten: Juan Melendez Legal Review

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Case Review

JUAN ROBERTO MELENDEZ

BackgroundThe Crime

On 13 September 1983, Delbert Baker was found dead in a back room of his beauty school in

Auburndale, Polk County, Florida. The pathologist, Dr Drake, stated that Baker's throat had

been cut with a razor and he had been shot three times in the head. He placed the time of

death at approximately 5:30 p.m., plus or minus an hour.

Detective Knapp, who attended the scene, testified that there were bloody footprints leading

from the scene towards the front of the school and a large hunting knife with a brown stain

was found. Baker usually wore a lot of gold jewellery which was not found and the petty cash

float of approximately $50 was missing. The police assumed that a robbery had taken place.

Statements Leading To Melndez's Arrest

In February/March 1984 David Falcon came forward to tell the police that Juan Roberto

Melndez and George Berrien were guilty of murdering Baker. At the time there was a $5,000

reward for information about the crime. Falcon knew Melndez and "did not like him; several

witnesses [for example, Dorothy Rivera and Angelo Graham] would later testify that Falcon

had said he would 'get' Melndez"1.

On 17 March 1984, John Berrien gave a statement to the police accusing Melndez and his

cousin, George Berrien, of murdering Baker. He said that he drove Melndez and Berrien toBaker's beauty school in the late afternoon and picked them up two hours later. He claimed

that, on collection, Melndez had a towel in his hands but that he could not tell if anything was

in the towel and did not see a gun, although he saw a bulge in the back of Melndez's trousers.

Melndez subsequently provided evidence that Falcon and a police detective had visited John

Berrien on 17 March 1984 putting pressure on him to cooperate with the police to implicate

Melndez in the murder and help himself. He also said that, during the visit, Falcon advised

John Berrien that Melndez had already confessed to the murder.

Arrest and Conviction

On 15 March 1984 Melndez was arrested by FBI agents. On 26 April 1984 an indictment was

filed against him for first-degree murder and armed robbery. On 29 May 1984 Melndez filed

a written plea of 'not guilty'. Melndez was subsequently convicted on 20 September 1984 for

first-degree murder and armed robbery. He was later released from prison on 3 January 2002,

having spent 17 years, eight months and one day2 on death row.

Issues Arising From the Investigation

Various issues arose from the investigation. The most egregious of these were:

Early in the investigation, the police developed a lead: a man called Terry Barber testifiedfor the defence that he had been at the beauty school between 5:00 p.m. and 6:30 p.m.

1 Exoneration Case Detail www.law.umich.edu/special/exoneration/Pages/casedetail.aspex?caseid=34652 Freed from Death Row www.weblaw.usc.edu/news/article.cfm?newsID=3938


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on the day of the crime and had seen two males in the back room who he thought he

could identify as Vernon James and Bobo. The police subsequently questioned James,

seizing his clothes and shoes to test for evidence. However, these items were returned

to James without having been tested and James was released. Further, the police

abandoned Barber's lead when Bobo denied that he and James were at the crime scene.

Significantly, James' fingerprints were never compared to those retrieved from the crime

scene.

Lack of prevention of contamination or preservation of the crime scene (see furtherbelow).

Original Trial

Key Facts

On 17 September 1984, Melndez's trial commenced at the Circuit Court of the Tenth Judicial

Circuit in and for Polk County, Florida (the Circuit Court), before the Honourable Edward F

Threadgill, Jr. Melndez pleaded not guilty to both first-degree murder and armed robbery.

Melndez testified at the innocence portion of his trial, but did not testify at the penalty phaseof his trial, opting instead to make a brief statement.

Falcon and John Berrien were the key prosecution witnesses. Berrien was originally charged

with first-degree murder and armed robbery of Baker. However, he negotiated with the

prosecutors, agreeing to testify against Melndez in return for the charges against him being

reduced from first-degree murder to accessory after the fact.

Falcon's evidence was "presented to the jury, in a hear-say fashion. [b]ecause the State knew

that Falcon was unreliable and unworthy of belief [t]hey used [J Berrien] to corroborate

Falcon's story against" Melndez3.

Evidence presented at the trial

No physical evidence or eyewitness testimony was presented at Melndez's initial trial that

placed him at the crime scene or that connected him to Baker's death. Indeed, the majority of

the physical evidence found at the crime scene was either not preserved by the State or

alternatively destroyed. For example:

Stella Dunlap, a beauty school employee, testified that the police took the customer sign-in book. Detective Knapp admitted examining the sign-in book at the crime scene, but

the police later denied recovering it and failed to produce it for the defence.

Dr Drake testified that the police gave him permission to use the telephone at the crimescene although the evidence collection process was incomplete and the telephone hadnot yet been checked for fingerprints. It is notable that the bloody footprints had been

concentrated near the telephone.

The police also failed to properly secure the crime scene as evidenced by the fact thatseveral employees/students entered the crime scene the day after Baker's body was

discovered.

Detective Knapp checked Baker's car and found a moist substance on the seat which wasnever tested.

A photograph was taken at the crime scene of a refrigerator indicating that a bullet hadricocheted off its side. However owing to "sloppy4" evidence recovery, the actual

projectile was found 12 days later by a cleaner.

3 Juan Melendez Innocent, Released From Florida's Death Row www.ccadp.org/juanmelendez.htm4 Appeal of denial of second rule 8.850 motion for post-conviction relief: initial brief of appellant, page 2.


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The police failed to check the many razors found in the beauty school for blood or prints,although it had been obvious at the time that Baker's throat had been cut with a sharp

knife or razor.

A pair of shoes found at the crime scene near Baker's body were not checked forevidence and were later lost.

The only piece of physical evidence presented by the prosecution was an Amtrack recordindicating that George Berrien had taken a train to Wilmington, Delaware.

Melndez provided an alibi, stating that he was with Dorothy Rivera on the evening of the

crime. This alibi was substantiated by other witnesses, including Franklin Brown, Wilson

Angelo and Marie Graham. James was called as a witness but he opted to invoke his Fifth

Amendment right against self-incrimination.

As detailed below, although the defence had various witness options available to call to support

its case, Roger Mims, James' cellmate to whom he had confessed murdering Baker, was called

at the original trial to testify for Melndez. Unsurprisingly, the prosecution attacked Mims'

credibility.

George Berrien testified that he had nothing to do with Baker's death and had never been in a

car with Melndez destined for Auburndale. Moreover, Berrien testified that he did not speak

Spanish and, although he did travel to Delaware, he obtained a 'ride to the train station from a

white guy in a brown truck'5.

During the course of the trial, additional witnesses testified that Falcon had a 'grudge' against

Melndez and had stated that he wanted to kill him.

Omissions

As mentioned above, there was no physical evidence implicating Melndez. The Circuit Courtalso prevented the defence from presenting evidence implicating James.

There was information evidencing James' guilt which the jury at the initial trial were not made

aware of, including statements James made to numerous parties, for instance Roger Alcott

(Melndez's original defence attorney) and Arther Meeks (Assistant State Attorney Investigator), that

he was either present when Baker was killed or that he actually killed Baker. For example, a

month prior to Melndez's trial, a tape-recorded confession was made by James in the

presence of Alcott, in which James admitted that "he had been at the beauty school when

Baker was murdered by two other men and [he] declar[ed] thatMelndez had not beenanywhere near the scene of the crime6". Secondly, during the cross examination of Detective

Knapp, the Circuit Court sustained a prosecution objection to questions concerning James.Thirdly, when the defence questioned Agent Roper (the police officer initially contacted by

Falcon) as to whether James had acknowledged his presence at the murder, the prosecution

objected that the question called for hearsay. This objection was sustained and the defence

was prevented from asking questions relating to Agent Roper's conversations with James.

The prosecution had based their case on the testimonies of Falcon and John Berrien. The

Circuit Court, however, prevented the defence from cross-examining these witnesses. Further,

the Circuit Court did not hear evidence relevant to each of these witnesses, including the fact

that Falcon was paid $5,000 by the police for his cooperation in proceedings; had been serving

a 45 year sentence in Puerto Rico for a homicide conviction; was never prosecuted for

5Juan Roberto Melndez, Petitioner v. Harry K. Singletary Jr, Secretary, Department of Corrections, State of Florida(case no. 82570 in the Supreme Court of Florida): see (i) petition for writ of habeas corpus, p.18 end of firstparagraph6 News About Juan's Release From Death Row! www.ccadp.org/juanmelendez-news2002.htm


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impersonating an officer and illegally entering a married couple's house, threatening them, and

firing bullets into their car7 and that the information in his testimony was readily available to

the public. Furthermore, the jury was not provided with an opportunity to fully assess the

credibility of John Berrien. There were many inconsistencies between Berrien's trial testimony

and his sworn statement to Meeks, none of which Alcott was able to use8.

When the penalty phase of the trial began, but prior to the jury being brought in, Melndez

informed the Circuit Court that he would rather receive the death sentence than a life sentence

so that he would obtain greater publicity, a speedier trial and thus be exonerated faster. The

Circuit Court did not, however, explain to him that receiving the death penalty would not give

him 'speedy trial' rights.

Judgment of the Circuit Court

On 20 September 1984 the jury found Melndez guilty of murder in the first-degree and armed

robbery. On 21 September 1984 the sentencing jury recommended a sentence of death by a

vote of 9-3. The judicial sentencing procedure, conducted on the same day, imposed a

sentence of death.

No mitigating factors were found by the Circuit Court. However, four aggravating

circumstances were highlighted, namely:

Melndez had previously been convicted of a felony involving the use or threat ofviolence;

The murder was committed in the course of a robbery; The crime was 'especially wicked, evil, atrocious and cruel'; and The 'crime was committed in a cold, calculating and premeditated manner'.

John Berrien received two years probation and George Berrien was never charged with any

offence9.

Appeal in the Supreme Court

Initial Brief of Melndez 24 May 1985

Melndez raised four arguments on appeal against his conviction and sentence:

Argument 1: The law enforcement agency responsible for the investigation was grosslynegligent in its preservation and collection of evidence. This meant that there was

virtually no physical evidence to examine, meaning Melndez was denied due process of

law. The overlooked evidence included a blood sample from the scene, a stain on thevictim's car seat, James' shoes, Falcon's gun, the shoes found beside the body, the

hunting knife found in the office drawer and Bobo's shoes. Melndez argued that this

evidence could have been exculpatory to his defence as the prosecution's case rested

solely on the testimonies of Falcon and John Berrien.

Argument 2: The State failed to prove beyond a reasonable doubt the four aggravatingcircumstances that were identified at trial and, as such, the death sentence should be set

aside because:

(i) Melndez's previous conviction for robbery was ten years old;7

Rebuilding the Lives of the Wrongfully Convicted www.exonerated.org/index.php?option=com_content&view=article&id=1598 Innocent on Death Row in Florida 17 Years - Juan Melendez -www.oranous.com/innocence/JuanMelendez/innocenet.html9 Juan Melendez Innocent, Released From Florida's Death Row www.ccadp.org/juanmelendez.htm


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(ii) There was no proof that Melndez was guilty of robbery in the current case;(iii)The crime was 'not especially wicked, evil, atrocious or cruel' because, if Melndez

had shot the victim in the head, as per Falcon's testimony, this would have caused

instant death;

(iv)No evidence was produced that there was any premeditation involved in the crime;and

(v) The court only read the list of aggravating circumstances to the jury withoutdefining them or illustrating the technical meaning of any of the words.

Argument 3: The refusal of James Reagan and Rita Reagan to appear at trial, whosetestimony could have created a strong doubt in the jury's mind about Falcon's credibility,

was a denial of due process. Further, Melndez submitted that the actions of certain

individuals within the police in trying to protect Falcons credibility were sufficient in and

of themselves to deny him due process of law.

Argument 4: Having been found guilty of first-degree murder and armed robbery (whichMelndez contended was one transaction), it was improper to sentence Melndez for both

offences separately.

Brief of the State of Florida 8 July 1985

The State responded to each of Melndez's points in turn, submitting that:

Response to argument 1: The evidence supposedly mishandled was not critical evidencethat would have had any bearing on the outcome of the case. All of the genuinely critical

evidence was retrieved, stored and handled with the expected degree of professionalism.

Further, the State advocated that due process should not be extended to the point of

requiring the State to pursue every possible avenue of investigation and make the

defendant's case for him. As such, there was no evidence of either bad faith or

negligence. Finally, it was submitted that the other evidence adduced at trial was

sufficient to satisfy that no error was committed and that the defendant was not denieddue process.

Response to argument 2: Each aggravating circumstance was proved beyond reasonabledoubt on the basis that:

(i) A copy of the record of Melndez's previous conviction had been attached to thetrial courts findings;

(ii) The jury found Melndez guilty beyond reasonable doubt of robbery;(iii)Falcon's testimony that the victim begged to be taken to hospital and the amount of

blood at the scene indicated that the victim's death was a slow, lingering one;

(iv)There was ample evidence in the record to support the finding that the murder wascommitted in a cold, calculated and premeditated manner; and

(v) Melndez had procedurally defaulted his right to raise this issue on appeal becausehis counsel had failed to raise the objection at trial as required by Florida Rule of

Criminal Procedure 3.390.

Response to argument 3: There was no necessity to declare a mistrial because thetestimony of James Reagan was not relevant to the issue and the essence of his

testimony was presented to the jury by way of stipulation. Further, the State submitted

that the record did not support Melndez's accusations as to misconduct on the part of

members of the police.

Response to argument 4: Melndez was precluded from raising this issue on appeal as hehad failed to raise a contemporaneous objection before the trial court. In the alternative,

Melndez was charged in a two-count indictment with premeditated murder and robbery

to which the jury returned a guilty verdict on each count. As such Melndez could

properly be sentenced for both murder and robbery.


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Reply Brief of Melndez 26 August 1985

Melndez submitted the following additional points in reply to the States Brief:

Argument 1: the State should be challenged to identify what critical evidence there wasto show any connection between Melndez and the crime, other than the testimony of

Falcon, as contended.

Argument 2: Melndez stood by his exposition in his initial brief. He emphasised thatthere was not sufficient evidence to conclude that premeditation existed and that the

court should have found a lack of significant, rather than merely any, prior criminal

history.

Argument 3: Melndez reiterated that the importance of the Reagans' testimony was toshow the violent nature of Falcon and the collaboration between Falcon and individuals

within the police. Such testimony could have had a profound effect upon the jury by

creating doubts about the credibility of Falcon.

Argument 4: No reply was deemed necessary.

Judgment of Supreme Court of Florida

11 December 1986

The court affirmed Melndez's sentence and conviction, holding that:

Most of the negligent non-preservation of evidence in the case occurred prior to the timeMelndez became a suspect.

All of the aggravating circumstances had been proved beyond a reasonable doubt. The trial court could not be faulted for refusing to declare a mistrial when non-

subpoenaed witnesses failed to appear. Moreover, Melndez suffered no prejudice as the

prosecutor agreed to a stipulation as to what their testimony would be and the stipulation

was read to the jury.

Melndez's fourth point was deemed to be meritless as a defendant could be convictedand sentenced for both felony murder and the underlying felony.

It should be noted that Judge Barkett, in a separate opinion, agreed with the majority that the

evidence was sufficient to support Melndez's conviction but disagreed that the evidence rose

to the level of certainty to support the imposition of the death penalty.

Appeal of the Denial of the First Rule 3.850 Motion10 in the

Supreme Court of Florida

First Rule 3.850 Motion for Post-Conviction Relief

Melndez filed a Rule 3.850 motion for post-conviction relief in the Circuit Court on 16 January

1989 and on 21 April 1989 filed a supplement to the motion. The State filed its response on

15 May 1989. On 17 July 1989 the Circuit Court denied Melndez relief without permitting an

evidentiary hearing. We do not have access to these documents but Melndez's appeal of the

denial of the Rule 3.850 Motion addresses the original motion. We summarise this below.

Initial Brief of Melndez 20 May 1991

Melndez raised 11 arguments on appeal of the denial of the first Rule 3.850 Motion for post-

conviction relief. The main arguments propounded included:

10 A Rule 3.850 Motion is a motion within the state of Florida to vacate, set aside or correct a sentence.


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Argument 1: The trial court erred in summarily denying the Rule 3.850 Motion withoutconducting an evidentiary hearing. Melndez's rule 3.850 Motion raised issues, including

the ineffective assistance of trial counsel and Brady v. Marylandviolations11 (both of

which are discussed in greater detail below) that required an evidentiary hearing. To

dismiss these issues without such a hearing was erroneous as a matter of law and fact.

Argument 2: The State's intentional withholding of material and exculpatory evidence,and its reliance upon allegedly false evidence, deprived Melndez of his fifth, sixth, eighthand fourteenth amendment rights.

Argument 3: Melndez was denied the effective assistance of counsel at the guilt-innocence and penalty phases of his trial, in violation of the sixth, eighth and fourteenth

amendments. This included:

(i) Evidence not presented to the jury which was available and, if correct, would haveimpeached the testimony of the State's two key witnesses, without whom the State

would have had no case against Melndez;

(ii) Trial counsel failed to issue subpoenas for the Reagans which meant the jury didnot hear their description of the incident nor hear evidence alleging that the police

protected Falcon;

(iii) Trial counsel failed to investigate Falcon's background as allegedly a drug addicted,mentally ill criminal; and

(iv) Failure to prepare mitigating evidence (and advise against the consequences of notdoing so) at the penalty phase of the trial.

Brief of the State of Florida 5 August 1991

The States Brief replied to each of Melndezs arguments in turn:

Argument 1: Melndez failed to carry his burden to prove that an evidentiary hearing waswarranted. The record in the instant case conclusively showed that Melndez was not

entitled to relief and the trial court correctly denied the motion without an evidentiaryhearing.

Argument 2: Since the record itself did not support the Brady allegations, it was withinthe trial court's discretion to summarily deny the claim. Melndez failed to show an

abuse of that discretion. The State submitted that all items mentioned in support of

Melndezs argument were either made known to the jury, would have been inadmissible

or were legally immaterial.

Argument 3: Melndez's motion was properly denied as he failed to show that counsel'sperformance during the guilt or penalty phases was deficient or that said deficiency

prejudiced the outcome of the proceeding.

Reply Brief of Melndez - 23 September 1991

Melndez submitted the following additional points in reply to the State's Brief:

Argument 1: The State's argument on this issue is simply a conclusion without anyexplanation as to why Melndez's claims did not require an evidentiary hearing. The

issues involved were in fact not matters "of record" and so an evidentiary hearing was

required.

Argument 2: The State's brief missed the point on this issue - non-disclosed mattersregarding Falcon had not been made known to the jury and, as such, they should have

11

A Brady v. Marylandviolation, more commonly known as a Brady violation, is established if the defendant is able toprove that: (i) the government possesses evidence favourable to the defendant, (ii) the defendant does not possessthis evidence nor could he obtain it himself with any reasonable diligence, (iii) the prosecution suppressed thefavourable evidence and (iv) had the evidence been disclosed to the defence, a reasonable probability exists that theoutcome of the proceedings would have been different.


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been admissible and legally material because they demonstrated the untruth of Falcon's

testimony.

Argument 3: Melndez reiterated that his trial counsel neglected his duty to investigate,prepare and present readily available evidence which was essential to a fair adversarial

hearing.

Argument 4: The States argument was unpersuasive, ignoring the trial record andMelndezs allegations. Melndez submitted that the trial record showed his confusion at

the guilt phase and that there was substantial mitigation readily available to his trial

counsel. Based on these allegations an evidentiary hearing was clearly warranted.

Judgment of Supreme Court of Florida - 12 November 1992

The Supreme Court of Florida affirmed the denial of Melndez's first Rule 3.850 Motion for

post-conviction relief holding that:

The record did not support the claims raised in arguments 1 and 2 as Melndez did notmeet the standard of proof for a Brady violation; and

The record did not support the claims raised in argument 3.Petition for Writ of Habeas Corpus12

Melndez's Petition 18 October 1993

On 18 October 1993, Melndez petitioned the Supreme Court of Florida for writ of habeas

corpus, asserting that his capital conviction and sentence of death were obtained and then

affirmed on appeal in violation of his rights as guaranteed by the United States Constitution13

and corresponding provisions of the Florida Constitution.

Melndez claimed that he was denied the effective assistance of counsel on his direct appeal tothe Florida Supreme Court (i.e. when he was represented by Marshall G. Slaughter Esq during

the 1985-1986 appeal). He raised six fundamental issues which appellate counsel failed to

raise, which would arguably have justified a reversal of the conviction and sentence and,

therefore, undermined the outcome of the appeal.

(1) Melndez's constitutional rights14 were violated when he was prevented at trial from cross-examining Falcon and presenting evidence necessary to prove his innocence.

(i) Evidence given by FalconEvidence given against Melndez by Falcon was not reliable as Falcon was motivated by a

desire to seek favour with prosecutors to avoid prosecution for a shooting which occurredat the Reagans' home.

Melndez believed that the details of the offence which Falcon claimed he had got from

Melndez's confession were actually from a different source (e.g. the police, newspaper

accounts or Falcon's own involvement).

The trial court would not allow the defence to present evidence regarding the allegation

that Falcon was involved in Baker's murder or to demonstrate what information was in the

public domain.

12

Juan Roberto Melndezv.- Harry K. Singletary Jr, Secretary, Department of Corrections, State of Florida (case no.82570 in the Supreme Court of Florida): see (i) petition for writ of habeas corpus, (ii) response to petition for writ ofhabeas corpus and (iii) corrected opinion.13 In particular, the Fourth, Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.14 Under the Sixth, Eighth and Fourteenth Amendments to the United Stated Constitution.


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(ii)Alternative suspectBefore Falcon's accusation of Melndez, police had been investigating evidence which

pointed towards James as the prime suspect.

During the cross-examination of a police sergeant at the original trial, the trial court

sustained a State objection to questions concerning James.

Further, the trial court sustained the State's objection to a question put by the defence toAgent Roper as to whether James acknowledged being present at the murder (which the

defence team claimed Agent Roper would have answered affirmatively). Despite the trial

court's decision that this was inadmissible as hearsay evidence, the defence team argued

that James' statement to Agent Roper was admissible as an admission against interest.

Melndez argued that Agent Roper's testimony would have corroborated Mims' testimony

and conclusively proven his innocence.

(2) There is insufficient evidence to convict Melndez of this crimeThe prosecution case at trial rested solely on the testimony of John Berrien and Falcon,

there being no physical evidence or eyewitness testimony connecting Melndez to Baker'smurder. Both of these witnesses' accounts should have been challenged as lacking

credibility:

(i) Berrien's testimony was contradicted by other testimony, including Franklin Brown (anemployee of Baker's who testified that he did not see John or George Berrien at the

shop that day), Rivera (who provided an alibi for Melndez), Barber (who testified that

he thought he saw James and Bobo in the back of the shop on the day of the murder)

and George Berrien (who denied John Berrien's account).

(ii) Various witnesses had previously testified that Falcon did not like Melndez, wanted tokill him and "was going to get rid of him".15

(3) Melndez's death sentence was arbitrarily and capriciously imposed in light of the fact thatan alleged co-perpetrator whom the State admitted to be equally guilty was never charged

with the crime16

According to the State's theory, George Berrien was at least equally culpable for the

murder. However, he was never arrested and no justification was given by the State for

this dichotomy.

(4) Melndez did not make a knowing and intelligent waiver of his right to present evidence inmitigation in the penalty stage of his capital trial

Although Melndez decided not to present evidence in mitigation at the penalty stage of

the original trial as he believed this would give him more publicity and a speedy trial

this was not a "knowing and intelligent" waiver of his right to present evidence to the jury.

He was unaware, uninformed and confused as to the nature and seriousness of the penalty

phase of the trial. The reliability of the death penalty depends upon the ability of the

defendant to present evidence in mitigation.

(5) Shifting the burden of proof in the jury instructions at sentencing deprived Melndez of hisrights to due process and equal protection of law, as well as his constitutional rights17

15 Page 21 of petition for writ of habeas corpus.16 In violation of the Eighth and Fourteenth Amendments to the United States Constitution.17 Under the Eighth and Fourteenth Amendments to the United States Constitution


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A capital penalty phase jury must be "told that the State must establish the existence of

one or more aggravating circumstances before the death penalty could be imposed [and]

such a sentence could be given if the State showed aggravating circumstances outweighed

the mitigating circumstances".18

This standard was never applied at the penalty stage and nor was it raised on direct

appeal. Instead the burden was shifted to Melndez on the question of whether he should

live or die. This meant misleading and irrelevant factors were injected into the penalty

determination.

(6) Melndez's sentence rests upon an unconstitutional automatic aggravating circumstanceBecause Melndez was convicted of felony murder, he then automatically faced statutory

aggravation for felony murder. Previous case law of the Florida Supreme Court states that

the felony murder aggravating factor alone cannot support the death sentence.

When a jury is given two options from which to choose, one constitutional and the other

not, and the jury does not affirmatively choose the constitutional option, the conviction

must be reversed.

Melndez was therefore denied a reliable and individualised sentencing determination.

As a result of appellate counsel's failure to raise these issues and bring constitutional error to

the attention of the Supreme Court of Florida, Melndez claimed that the fairness and

correctness of the appeal was undermined and he should be entitled to a new direct appeal.

Response of the State 3 November 1993

On 3 November 1993, the State filed a response, arguing that the petition was almost entirely

a repetition of issues raised in the previous Rule 3.850 proceedings where they wereconsidered by the court and rejected.

The State referred to case law establishing that that "habeas corpus should not be used as a

vehicle for presenting issues which should have been raised at trial and on appeal" and

"allegations of ineffective appellate counsel therefore should not be allowed to serve as a

means as circumventing the rule that habeas corpus proceedings do not provide a second or

substitute appeal". It argued that the court should, therefore, decline to consider the

substance of the claims asserted.19

Judgment of the Supreme Court of Florida

On 8 September 1994, the Supreme Court of Florida denied the petition for writ of habeas

corpus, finding Melndez's claim to be without merit.

Motion for Rehearing Petition

Melndez filed a motion for rehearing of his petition for writ of habeas corpus but this was

denied by the Supreme Court of Florida on 16 November 1993.

18 Page 31 of petition for writ of habeas corpus, referring to State v. Dixon, 283 So.2d 1 (Fla. 1973)19 Page 11 of response to writ of habeas corpus, referring to McCrae v. Wainwright, 439 So.2d 868 (Fla. 1983)


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Second Rule 3.850 Motion for Post-Conviction Relief20

Petition of Melndez

On 13 September 1994, Melndez filed a second Rule 3.850 Motion for post-conviction relief at

the Circuit Court, seeking:

To present evidence discovered since the original trial and the first Rule 3.850 Motionwhich established that James was responsible for Baker's murder; and

To establish, in relation to John Berrien's testimony, that the State committed a Bradyviolation by withholding material exculpatory evidence (relating to Berrien's motivates in

falsely testifying) and knowingly presenting false testimony.

Evidentiary Hearing

On 23 and 24 May 1996, the Circuit Court held an evidentiary hearing, where several

witnesses positively identified James as the killer and John Berrien recanted his previous

testimony.

Deborah Ciotti, a close friend of James, testified that a few days before the homicide, James

told her that there was going to be a drug deal at Baker's beauty school and that he intended

on robbing Baker of the money and the drugs. On the night of the murder, he told her he was

getting ready to go to Baker's beauty school. She saw him, with another man, driving Bobo's

car and pulling into the beauty school that night. The next morning, James showed her a wad

of money and a bag of cocaine. She testified that she believed Melndez was not involved in

Baker's death and that he had not been the other man with James.

Sandra James, James' sister, testified that her brother had told her he set up the robbery and

was present, although he did not kill Baker.

Janice Dawson, who met James in 1983 and had a co-habiting relationship with him, confirmed

that James told her of his involvement in Baker's death. She gave evidence that James had

shown her some of Baker's jewellery which he admitted used to belong to Baker.

Dwight Wells, the attorney who represented John Berrien on the murder and armed robbery

charges relating to Baker's death, testified that during the seven or eight months that he

represented him, Berrien consistently maintained his innocence despite Wells' advice to accept

the State's plea offer in order to avoid the risk of receiving a death sentence.

Wells testified that, before Melndez's trial, he visited James in prison (they knew each other

as Wells had represented James). James confessed his part in Baker's death to Wells. He toldhim that he had gone to Baker's school. Baker had made advances and "that's what led to the

homicide".21 Wells did not share this information with anyone outside his office, including

Melndez's trial counsel.22 Wells testified that he could not recall ever talking to Alcott about

the case while they were representing Melndez and Berrien but said that, if Alcott had asked

him about the case, he would have relayed James' statements to Alcott and he would have

testified at Melndez's trial if asked to or subpoenaed.

Alcott, Melndez's trial attorney, testified that he spoke about the case with Wells when the

latter was representing Berrien and that Wells did not disclose James' confession to him. The

20

Juan Roberto Melndez v. State of Florida, (case no. 88,961 in the Supreme Court of Florida): see (i) initial brief ofMelndez, (ii) answer brief of the state, (iii) reply brief of Melndez, (iv) judgment of the Supreme Court of Florida and(v) index to appendix21 Page 22 of initial brief of Melndez22 Wells was not bound by attorney-client privilege as he was not representing James at the time.


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defence theory at trial would have been supported by James' confession and, if he had known

about it, Alcott would have called Wells to testify.

John Berrien recanted his previous testimony, claiming that he was threatened by the police to

secure his cooperation in the prosecution of Melndez. He recalled that at the first police

interview he told the police that he knew nothing about Baker's murder. He was wrongly told

by a man at one of the police interviews (understood later to be Falcon) that Melndez had

confessed to Baker's murder. Berrien testified that the tape recording of his interview had

been manipulated by the police and that the police would tell him what they wanted him to say

and stop the tape if he made a mistake. As he would not face sentencing for his alleged

involvement until after testifying at Melndez's trial, he felt compelled to maintain this false

account of events at trial.

Agent Roper admitted that the police had discussions with John Berrien that were excluded

from the tape recording of the interview and that, before the interview began, Berrien was

informed by the police of the facts of Baker's murder and that they believed Melndez was

involved. He confirmed he heard "clicks" on the tape when it was played in court,

corroborating Berrien's memory of the manipulation of the tape recording. Although he

claimed that the tape was stopped for "thought-gathering processes to see what we needed toask Mr Berrien",23 his cross-examination revealed that the tape was frequently stopped

between a question and answer, suggesting that Berrien was being told how to answer.

Dr Richard Ofshe, a social psychologist specialising in false memories, police interrogation

techniques and coerced confessions, testified that the police used threats and control to obtain

statements from John Berrien. He had found evidence in the record to support Berrien's

testimony at the evidentiary hearing that the police threatened him during the interrogation.

He noted that even without Berrien's repudiation of his own testimony, the unreliability of his

testimony was obvious from its variability.

Melndez presented evidence demonstrating that the testimony of these witnesses had beenunavailable to post-conviction counsel and was newly discovered (they had previously been

unable to find John Berrien or James despite many attempts and the other witnesses were

discovered only after the James murder file was obtained by Melndez's attorney, which was

unavailable until 1994).


On 17 July 1996, the Circuit Court found that the testimony of the witnesses "either

individually or cumulatively, falls short of the standard required to grant a retrial" and denied

Melndez's second Rule 3.850 Motion for post-conviction relief.

It ruled that the witnesses' evidence was not credible as the witnesses consisted of threeconvicted felons and their evidence involved the partial re-canting of a co-defendant's

testimony (whose motives could be questioned) and a lawyer's vague memories. Further,

none of the witnesses claimed that James had explicitly stated that he had killed Baker so the

Circuit Court found the confessions to be insufficient to warrant a new trial.

The defence at the original trial was that James had committed the murder. This had been

rejected by the jury and none of the newly discovered evidence would have been sufficiently

credible to change that verdict.

23 Page 26 of initial brief of Melndez.


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Motion for Rehearing

Melndez subsequently filed a motion for rehearing which was denied by the Supreme Court of

Florida on 15 September 1998.24

Appeal of Denial of Second Rule 3.850 Motion for Post-

Conviction Relief25

Initial brief of Melndez 29 May 1997

On 29 August 1996, Melndez appealed the denial of his second Rule 3.850 Motion for post-

conviction relief. He filed his initial brief with the Supreme Court of Florida on 29 May 1997,

putting forward four arguments:

(1) Evidence previously unavailable to post-conviction counsel establishes Melndez'sconviction and death sentence as unreliable and entitles him to a new trial and sentencing

Melndez argued that James' confessions, as described by the witnesses in testimony atthe evidentiary hearing, are corroborated by witnesses who saw James with money and

drugs the morning after the murder and his possession of Baker's jewellery. Wells'

testimony would have had greater credibility than Mims' and would have strengthened the

defence case.

John Berrien's testimony was essential to the State's case. The Circuit Court failed to

evaluate whether the effect of Berrien's recantation would have been to produce a

different verdict and wrongly noted that attacking Berrien's credibility was a major part of

the defence at trial.

The Circuit Court did not provide a legitimate reason for disbelieving Melndez's witnessesand the record does not contain sufficient evidence to support this finding:

(i) Ciotti, Dawson and Sandra James were close to James and did not know Melndez.Therefore, they had no motive to lie to help him.

(ii) Wells was, at the time of the trial, representing John Berrien, who was facing thepossibility of the death penalty and, therefore, advising him to accept the State's

plea arrangement was in his client's best interests.

(iii)Berrien himself did not have any motive to lie at the evidentiary hearing in May 1996to help Melndez.

(iv)The testimony of Ofshe was completely disregarded by the Circuit Court.The Circuit Court failed to consider the newly presented evidence as a whole or in

conjunction with previous evidence.

It applied a higher standard than required by law in relation to James' confessions not

amounting to murder. His confession to being present at and involved in the murder are

contrary to the State's theory at trial, exclude Melndez from any participation and support

the defence theory. Therefore, they create substantial reasonable doubt which would

probably have produced an acquittal.

24 http://www.victimsofthestate.org/FL/Melendez.pdf25Juan Roberto Melndez v. State of Florida (case no. 88,961 in the Supreme Court of Florida): see (i) initial brief ofMelndez, (ii) answer brief of the state, (iii) reply brief of Melndez, (iv) judgment of the Supreme Court of Florida and(v) index to appendix


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New evidence supporting an old fact or theory is still new evidence and cannot simply be

dismissed as cumulative. New evidence can add weight to an old fact or theory and make

it more likely that the fact or theory is true. Thus a claim cannot be dismissed simply

because a similar allegation was made in the past.

(2) Melndez was denied an adversarial testing at his trial due to State misconduct and histrial counsel's ineffectiveness

The State withheld material exculpatory evidence relating to the unreliability of John

Berrien's testimony and presented false testimony in violation of Melndez's constitutional

rights. Berrien's trial testimony, which was fundamental to Melndez's conviction, resulted

from coercion and intimidation and the Circuit Court failed to recognise that his account of

events differed at three different interviews he had had with police in March 1984. The

Circuit Court failed to take account of evidence given by Ofshe and Agent Roper which

corroborated Berrien's account.

(3) Melndez was denied the effective assistance of counselTo the extent the State argues and the Circuit Court found that the evidence presented atthe evidentiary hearing was available to trial counsel, Melndez received ineffective

assistance of trial counsel.

(4) The Circuit Court failed to consider the cumulative effect of all the evidence discoveredsince Melndez's trial

Had it examined all the evidence Melndez had presented throughout his capital

proceedings, it would have found that confidence in the outcome of the trial was

undermined and/or that an acquittal would have been produced.

Brief of the State of Florida

29 September 1997

On 29 September 1997, the State filed its brief in response:

(1) The Circuit Court was correct in rejecting Melndez's claim of newly discovered evidenceAny evidence relating to James' guilt is not newly discovered because it was either already

known or it could have been obtained by exercising reasonable diligence. It was

cumulative to evidence actually presented at trial, which the jury had already heard and

decided upon.

None of the witnesses could testify that Melndez was not guilty of murder, only that

James had said he was present at Baker's death. Ciotti, Dawson and Sandra James areconvicted felons with little or no credibility and neither Wells nor Alcott could recall if

information relating to James' confession had been relayed.

(2) The Circuit Court was correct in rejecting Melndez's claim that the State withheld materialexculpatory evidence and presented false evidence in violation of Melndez's constitutional

rights

Melndez's claim of an alleged Brady violation was dealt with in his first Rule 3.850 Motion

so he was not entitled to re-assert it at this stage.

However, if the claim was not procedurally barred, Melndez was not entitled to relief on

the merits. He was unable to establish a Brady violation because he could notdemonstrate that the State withheld information which would have been favourable to

him, which evidence he did not possess and could not have obtained himself with any


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reasonable diligence, and which evidence, if disclosed to the defence, would reasonably

likely have caused a different outcome to proceedings.

John Berrien's claim that his taped statement was coerced is uncorroborated and the

Circuit Court found him an unbelievable witness. Berrien's claim was equally accessible to

the defence at the time of trial. His statements were thoroughly challenged in earlier

proceedings and, even if his claim of coercion was presented to impeach his testimony at

trial, the addition of this unsupported claim does not lead one to conclude that the

outcome of the proceeding would have been different. Only a few statements made at

trial are now claimed by him to be false and none of these were material.

(3) The Circuit Court was correct in rejecting Melndez's claim that defence counsel'srepresentation was ineffective

This claim is barred as it was raised and rejected in prior proceedings.

Additionally, Melndez failed to establish that counsel's failure to discover and present the

testimony constituted deficient performance and would have changed the outcome of the

proceeding.

Reply Brief of Melndez 3 November 1997

On 3 November 1997, Melndez filed his reply brief relating to the three arguments of the

State:

(1) Newly discovered evidenceIt was logically and factually erroneous to claim that Melndez's new evidence was

cumulative to the evidence presented at trial. The new testimony did not repeat Mims'

testimony but provided additional detail and made the previous theory more likely to betrue. Wells' testimony would not have been cumulative to Mims'; it would have

corroborated Mims' testimony and carried greater credibility.

It was legally and factually erroneous to claim that Melndez's new evidence would

probably not produce an acquittal. The new evidence relating to James' involvement did

not fit with the theory put forward by the State at trial, when it argued that the contention

that James committed the crime was "a smoke screen". Evidence contrary to the State's

case at trial exculpates Melndez.

The State argued that some of the witnesses presented were not credible so their

testimony would probably not produce an acquittal. However, the State did not argue that

Wells was not credible. The Circuit Court was not clear as to which four of the fivewitnesses it found not to be credible, except John Berrien. Vagueness renders this an

unreliable basis for denying relief (and one of the witnesses must have been credible).

(2) Brady violationsThe State does not address the fact that John Berrien was previously unavailable to post-

conviction counsel.

It is incorrect to state that Berrien's testimony was thoroughly challenged at trial. The

jury was never informed about his frequently contradictory pre-trial statements. Berrien's

recantation relates to key parts of the case against Melndez. As Melndez's convictionand death sentence rest on Berrien's credibility, any information revealing that his trial


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testimony was false and the result of police coercion would be material to Melndez's

defence.

(3) Ineffective assistance of counsel claimThe particular grounds for the ineffective assistance of counsel claim raised here were not

available at the time of the first Rule 3.850 Motion so the claim is not procedurally barred.

The State offers no support for its assertion that the claim is without merit.

(4) Failure to consider cumulative effect of all evidenceThe State failed to respond.

Judgment of Supreme Court of Florida

On 11 June 1998, the Supreme Court of Florida affirmed the decision of the Circuit Court,

denying Melndez's second Rule 3.850 Motion for post-conviction relief.

(1) Newly discovered evidenceThe Supreme Court considered that the trial court had properly applied the law and its

findings were supported by competent substantial evidence. Therefore, it was precluded

from substituting its judgments for that of the Circuit Court.

(2) Brady violationsThe trial court was correct.

(3) Ineffective assistance of counsel claimThis argument was held to be procedurally barred because the claim was raised in the

previous Rule 3.850 Motion.

(4) Failure to consider cumulative effect of all evidenceEach of the claims relating to newly discovered evidence, Brady violations and ineffective

assistance of trial counsel were either meritless or procedurally barred so there is no

cumulative effect to consider.

Third Rule 3.850 Motion for Post-Conviction Relief26

Petition of Melndez 19 October 2000

On 19 October 2000, Melndez filed his third Rule 3.850 Motion for post-conviction relief,

claiming he was entitled to a new trial, based on the following three arguments.

(1) New evidenceMelndez presented the following new evidence to the court:

(i) A transcript of a recorded interview of James conducted by Alcott and Cody Smith, atrial defence investigator, in August 1984 in which James referred to Wells as being

26State of Florida v. Juan Roberto Melendez, (case no: CF-84-1016A2-XX): see order granting amended motion tovacate judgments of conviction and sentence and granting new trial


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with him and an investigator from the public defender's office when James told him

what he knew about the homicide;

(ii) Notes from the Assistant State Attorney's files relating to investigative interviews andnotes between the Assistant State Attorney, investigators and law enforcement; and

(iii)Several new witnesses who claim James implicated himself in the murder.Melndez argued that his collateral counsel had demonstrated due diligence even though

this information remained undiscovered until now.

(2) Ineffective assistance of counselMelndez argued that trial counsel was ineffective for failing to investigate and present to

the jury Wells' testimony regarding James' confession as to his involvement in Baker's

murder. Alcott had taped an interview of James prior to trial and in this conversation

James stated that he had previously told Wells that he was involved in the murder of

Baker. Instead of investigating what James told Wells and calling Wells to testify, Alcott

called James' cellmate, Mims, to testify as to James' confession. This was deficient

performance since Alcott testified at the latest evidentiary hearing that he would ratherhave had someone testify with more credibility than a cellmate (at trial, the prosecution

attacked Mims' credibility as unconvincing).

Further, he argued trial counsel was ineffective for failing to subpoena the Reagans to

discredit Falcon because of an alleged violent confrontation with them.

(3) Brady violationsThe State withheld several pieces of exculpatory evidence which would have supported

Melndez's defence theory at trial which included:

(i) The fact that police reports were not prepared until six months after the night of thehomicide. This information could have been used to impeach officers' recollection ofdetail at trial.

(ii) A statement made by James to Meeks, an investigator for the Office of the StateAttorney, giving his account of the night of the homicide (James told Meeks he went

to Baker's with two other men to settle an argument with Baker, that he was in the

school but left prior to the murder and that he waited outside while the other two

men killed Baker).

(iii)A handwritten report of the details of the Reagan home invasion obtained in aninterview with J Reagan.

(iv)A letter from the prosecutor to a police officer regarding Falcon's involvement in theReagan home invasion.

(v) 13 sworn witness statements including notes obtained through ex parte investigativeinterviews which could have been used to impeach those witnesses during

depositions and at trial. If disclosed, the defence could have followed up on other

leads relating to the involvement of two men other than Melndez in the homicide.

It could also have challenged Falcon and John Berrien's testimony based on the

inconsistencies in the notes compared with their trial testimony.

Response of the State

In relation to Melndez's raising new evidence, the State argued that the motion was

procedurally barred because the "newly discovered" evidence was available to Melndez years

before he filed his second post-conviction motion and thus the due diligence standard had not

been met.


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The State argued that the testimony of the witnesses was not newly discovered evidence

because it would not be admissible at trial. The defence had failed to demonstrate

corroborating circumstances to show the trustworthiness of the witnesses' statements

regarding James' confessions.

In relation to the Brady violations, the State argued that James' statement to Meeks did not

qualify as exculpatory evidence since it did not exclude Melndez as a perpetrator.

Evidentiary Hearing

On 29 to 30 May 2001, Melndez's attorneys presented (i) the taped interview between Alcott

and James; and (ii) various witnesses who testified that James had made incriminating

statements relating to his involvement in Baker's murder at a two-day evidentiary hearing.

(1) Taped statementIt became clear that Leslie Delk, who prepared the filing of the first post-conviction

motion, and Gail Anderson, the second collateral counsel, were not aware of the recording.

If either had known, it would have corroborated their theory of the case and otherwitnesses' testimony and would have allowed a claim for ineffective assistance of counsel,

which has a lower burden of proof than a claim for newly discovered evidence.

Alcott testified that he had no recollection of exploring the possibility of calling Wells to

testify regarding his conversation with James and said he probably never even thought to

call him as a witness.

(2) Additional witnessesStanley Brookshire, Janet Conoway, Theodore Spencer, Kenneth Graham and Angelia

Haughbrook gave evidence which linked James with the murder of Baker.


(1) Newly discovered evidenceThe Circuit Court held that post-conviction counsel had acted reasonably and exercised

due diligence, it being reasonable to presume that Alcott's defence files were complete and

logical to expect him to provide any exculpatory evidence of which he had knowledge. It

had not been shown with certainty that the transcript of the taped interview was provided

to collateral counsel from either Alcott's file or as a result of a public records request.

Due diligence had been exercised in attempts to locate Marty Lake, the convicted

murderer of James. It was Lake's personal case file and conversations with Lake which led

to the discovery of the additional witnesses who could offer exculpatory information and

support Melndez's claims.

The Circuit Court stated that the Florida Supreme Court has consistently held that a new

trial is warranted if newly discovered evidence substantially undermines confidence in the

outcome of prior proceedings or is of such nature that it would probably produce an

acquittal on retrial. When a prior evidentiary hearing has been conducted, the trial court

must consider all newly discovered evidence which would be admissible at trial and then

evaluate the weight of all evidence to determine whether the evidence would probably

produce a different result on retrial. This cumulative analysis must be conducted so thatthe trial court has a "total picture" of the case.


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The Circuit Court, therefore, considered the following issues individually and then

cumulatively along with evidence from previous proceedings to determine if a reasonable

probability existed of a different outcome.

(2) Ineffective assistance of counselThe Court held that although Alcott should have investigated the possibility of calling Wells

as a witness, his failure to do so was not egregious enough that his performance was

sufficiently deficient that he was not functioning as the "counsel" guaranteed to Melndez

by the Sixth Amendment. There was no reasonable probability that, were it not for the

error, a different result would have been produced at trial.

Although live testimony regarding the Reagans' home invasion would have been preferable

to the written testimony which was admitted instead, Alcott was not deficient for failing to

subpoena the Reagans. The substance of the testimony was presented to the jury so the

defendant was not prejudiced by the Reagans' non-appearance.

(3) Brady violationsThe Circuit Court held that Brady violations had occurred, as claimed by Melndez.

When viewing each piece of suppressed evidence cumulatively, the credibility of John

Berrien and Falcon, which was of critical importance in the trial, was seriously undermined

to the degree that confidence in Melndez's conviction and death sentence was

undermined. Further, the suppressed evidence was found to substantiate the defence

theory that someone other than Melndez committed the homicide.

Without knowledge of, and access to, the suppressed evidence, Melndez did not receive a

fair trial. Therefore, the Circuit Court set aside his conviction and sentence and granted

him a new trial.

(4) Newly discovered evidence and cumulative effectThe taped statement was newly discovered by collateral counsel but did not qualify as

newly discovered evidence since trial counsel knew of it prior to trial.

The evidence of the additional witnesses did constitute newly discovered evidence. James'

confession of his involvement was corroborated by evidence the witnesses gave relating to

his possession of certain items of Baker's jewellery and the blood on his clothes on the

night of Baker's death.

Evidence in support of claims of Brady violations and ineffective assistance of counselsubstantiates that James also disclosed his involvement to law enforcement officers, State

attorney investigators, a criminal defence investigator and two criminal defence attorneys

prior to Melndez's trial. This corroborates the witnesses' statements.

The witnesses' testimony would have been admissible at trial so is considered in the

cumulative analysis.

Evidence presented to the court substantiates that James was involved in the murder and

Melndez was not. The jury was precluded from hearing the evidence of the taped

interview, the additional witnesses and the documents withheld by the State.

Additional evidence undermines the credibility of the two State witnesses. At trial, theState's position was that Falcon had nothing to gain by testifying against Melndez, that

he was paid an insignificant amount of money, that he was not charged with any crime

and that he did not receive a plea bargain in exchange for his testimony. Therefore, he


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had no reason to give false testimony. However, information in the prosecutor's

handwritten notes and the Assistant State Attorney's letter relating to the Reagan shooting

incident weaken the State's argument that Falcon had nothing to gain by testifying. If

disclosed to Alcott, he could have presented evidence that the police and Assistant State

Attorney failed to investigate the Reagan home invasion because it led to Falcon. He could

also have used them to impeach Falcon about the Reagan home invasion since Falcon

maintained he had not been involved.

The Assistant State Attorney's notes relating to the sworn witness investigative interviews

of Falcon and John Berrien show numerous discrepancies with their trial testimony.

Although Falcon's testimony was vital to the State's case in obtaining a death sentence,

the jury was not made aware of inconsistencies in his testimony. Although Alcott

attempted to attack Berrien's motive to testify against Melndez, the record reflects that

they were pages of inconsistencies between the trial testimony and sworn statement to

Assistant State Attorney, none of which Alcott was able to use. This meant that the jury

was not given opportunity to fully assess the credibility of this key State witness.

James made statements to numerous friends as well as lawyers and investigators that he

either was present when Baker was killed or that he actually killed Baker. Testimony ofwitnesses, the Assistant State Attorney's notes and letters and the taped statement of

James' interview with Alcott tend to corroborate that James was present and that

Melndez was not. If Alcott had known James implicated himself to Meeks, he would have

called Meeks to testify. He knew James had spoken to Wells but did not follow up with

Wells. The testimony of an Assistant State Attorney investigator and an attorney would

likely be more credible to a jury than that of an inmate who said that James confessed to

him three days before trial.

The State's case contained no physical evidence connecting Melndez to the murder.

Conviction and sentence hinged on the credibility of J Berrien and Falcon so the State's

case is seriously damaged by this new evidence.

Conclusion

The newly discovered evidence, the Brady violations and defence counsel's failure to

investigate what James had disclosed to Wells combine to undermine the confidence in the

outcome of Melndez's original trial and there is a reasonable probability of a different

outcome. After a thorough cumulative analysis of all evidence, the Circuit Court held that

these errors were not harmless beyond a reasonable doubt. The Circuit Court, therefore,

vacated and set aside Melndez's conviction and sentence and granted him a new trial.

Following the reversal of the conviction, Polk County State Attorney's Office announced the

State's decision to abandon charges against Melndez, due to one of the two witnesses againstMelndez having recanted his evidence (Berrien) and the other having died (James).

Melndez was released from death row with $100. He has never received any compensation

or an apology.

Case Review produced by Ashurst


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Chronology

JUAN ROBERTO MELENDEZ

Key: Trials/Appeals/Applications

Original trial

Appeal against convictions and sentences

First Rule 3.850 Motion for post-conviction relief

Appeal of summary denial of first Rule 3.850 Motion for post-conviction relief

Petition for writ of habeas corpus

Second Rule 3.850 Motion for post-conviction relief

Appeal of denial of second Rule 3.850 Motion for post-conviction relief

Third Rule 3.850 Motion for post-conviction relief

Date Event13 September 1983 Police responded to a call from Delbert Baker's sister in the evening.

They found the body of Baker on the floor in a back room of his beauty

school in Auburndale. His throat had been cut and he had been shot

three times.

February/March

1984

David Falcon contacted Florida law enforcement officials to claim that

Juan Roberto Melndez-Coln and John Berrien were guilty of killing

Baker and that Melndez had confessed to the killing.

15 March 1984 Melndez and Berrien were arrested and detained in jail.

17 March 1984 Berrien gave a statement to the police accusing Melndez and his

cousin, George Berrien, of murdering Baker. Melndez subsequently

claimed that Falcon and a police detective had visited Berrien that day

(17 March) putting pressure on Berrien to cooperate with the police to

implicate Melndez in the murder and help himself, and that, during the

visit, Falcon advised Berrien that Melndez had already confessed to the

murder.

26 April 1984 An indictment was filed against Melndez for first degree murder and

armed robbery.

29 May 1984 Melndez filed a written plea of "not guilty".

29 June 1984 Berrien was released from jail. In a deal with prosecutors, he agreed to

testify against Melndez in return for the charges against him being

reduced from first-degree murder to accessory after the fact. He was

sentenced to two years' probation.

August 1984 Before the trial, Melndez's original defence attorney, Roger Alcott,

obtained a taped statement from Vernon James admitting to being

present when Baker was killed and confirming that Melndez had not

been there. This taped statement was not shown to either the judge or

jury at trial.

17 September 1984 Trial commenced at the Circuit Court of the Tenth Judicial Circuit in and

for Polk County, Florida (the Circuit Court).


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20 September 1984 The jury convicted Melndez of first-degree murder and armed robbery.

21 September 1984 By a vote of 9-3, the jury recommended the death penalty. The Circuit

Court imposed the death sentence for murder and a life sentence for

robbery, finding four aggravating and no mitigating factors.

24 May 1985 Melndez filed an appeal against his convictions and sentences at the

Supreme Court of Florida.8 July 1985 The State of Florida filed its brief in response to Melndez's appeal.

26 August 1985 Melndez filed a reply brief.

1986 James was murdered.

11 December 1986 A majority of the Supreme Court of Florida affirmed the decisions of the

Circuit Court.

10 February 1988 A clemency hearing was held where clemency was denied.

16 January 1989 Melndez filed a Rule 3.850 Motion for post-conviction relief to vacate

judgment and sentence in the Circuit Court, arguing ineffective

assistance of counsel and calling into question the fundamental fairnessof the trial.

21 April 1989 Melndez filed a supplement to the Rule 3.850 Motion.

15 May 1989 The State of Florida filed a response.

17 July 1989 The Circuit Court summarily denied Melndez's Motion for post-

conviction relief.

20 May 1991 Melndez appealed the summary denial of his first Rule 3.850 Motion

for post-conviction relief.

5 August 1991 The State of Florida filed its brief in response to Melndez's appeal.

23 September 1991 Melndez served an argument in reply to the State of Florida.

12 November 1992 The Supreme Court of Florida affirmed the decision of the Circuit Court.

18 February 1993 The Supreme Court of Florida denied a rehearing of its decision.

6 August 1993 Melndez filed a petition for writ of certiorari to review the Supreme

Court of Florida's decision.

18 October 1993 Melndez's petition for a writ of certiorari was denied.

18 October 1993 Melndez petitioned the Supreme Court of Florida for writ of habeas

corpus, claiming that his appellate counsel (Marshall G. Slaughter, Esq,

who represented him in the 1985-1986 appeal) was ineffective.

3 November 1993 The State of Florida filed a response to Melndez's petition for writ of

habeas corpus.

8 September 1994 The Supreme Court of Florida denied the petition for writ of habeas

corpus.

13 September 1994 Melndez filed a second Rule 3.850 Motion for post-conviction relief at

the Circuit Court, seeking to present newly discovered evidence that

James was the killer.

September 1994 Melndez filed a motion for rehearing of his petition for writ of habeas

corpus.

16 November 1994 The Supreme Court of Florida denied Melndez's motion for rehearing of

his petition for writ of habeas corpus.


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23-24 May 1996 The Circuit Court held an evidentiary hearing, where five witnesses

were called who positively identified James as the killer. Berrien also

recanted his previous testimony.

17 July 1996 The Circuit Court found that the testimony of these witnesses fell short

of the standard required to grant a retrial and denied Melndez's second

Rule 3.850 Motion for post-conviction relief.

6 August 1996 Melndez's motion for rehearing was denied.

29 August 1996 Melndez appealed the denial of his second Rule 3.850 Motion for post-

conviction relief.

29 May 1997 Melndez filed his initial brief with the Supreme Court of Florida.

29 September 1997 The State of Florida filed its brief in response to Melndez's appeal.

3 November 1997 Melndez filed his reply brief.

11 June 1998 The Supreme Court of Florida affirmed the decision of the Circuit Court,

denying Melndez's second Rule 3.850 Motion for post-conviction relief.

15 September 1998 The Supreme Court of Florida denied a rehearing.

August/September

2000

Attorneys who were working on Melndez's case contacted the original

defence attorney, Alcott, now a Circuit Court judge in Polk County.

Alcott had recently found the original transcript of the taped statement

of his interview with James containing his account of events.

19 October 2000 Melndez filed his third Rule 3.850 Motion for post-conviction relief,

based on newly discovered evidence, ineffective assistance of trial

counsel (referring to defence attorney Alcott's failure to investigate

James' taped testimony at the trial of 17 September 1984) and the

State's intentional withholding of material and exculpatory evidence.

23 February 2001 Melndez filed an Amended Motion to Vacate Judgments of Convictionand Sentence with Special Request for Leave to Amend and for

Evidentiary Hearing.

9 March 2001 The State of Florida filed its response.

19 March 2001 The Circuit Court held a hearing at which it determined that Melndez

was entitled to an evidentiary hearing.

29-30 May 2001 Melndez's attorneys presented the taped James statement at a two-

day evidentiary hearing and several witnesses testified that James had

made incriminating statements over the years regarding his

involvement in Baker's murder and that he had indicated that the wrong

men were being prosecuted.

5 December 2001 Florida Circuit Court Judge Barbara Fleischer overturned Melndez's

capital murder conviction after determining that prosecutors in his

original trial withheld critical evidence, thereby undermining confidence

in the original verdict. The judge noted that no physical evidence linked

Melndez to the crime. A new trial was granted.

3 January 2002 Following the reversal of the conviction, Polk County State Attorney's

Office announced the state's decision to abandon charges against

Melndez, due to one of the two witnesses against Melndez having

recanted his evidence (Berrien) and the other having died (James).

Melndez was released from death row with $100. He has neverreceived any compensation or an apology.


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Dramatis Personae

Name Description

Alcott, Roger Melndez's original defence attorney.

Baker, Delbert Victim. Beauty salon and school owner and open homosexual.

Barber, Terry Initial lead.

Berrien, George Cousin of John Berrien. Allegedly partook in the crime.

Berrien, John Convicted felon and supposed driver of the car which took

Melndez to the crime scene. Key prosecution witness.

Drake (Doctor) Pathologist.

Falcon, David A convicted felon with a history of drug abuse and mental

problems. Key prosecution witness.

James, Vernon Man who confessed to murdering Baker.

Knapp (Detective) Detective attending the crime scene.

Landrum, Harold (a.k.a. Bobo) Close friend and partner of James.

Meeks, Arther Assistant State Attorney Investigator.

Melndez, Juan Roberto Death row inmate. Wrongly convicted for the murder of

Delbert Baker.

Roger Mims James' cellmate who testified against him at the initial trial.

James Reagan Victim of a shooting incident perpetrated by Falcon. Refusedto testify in support ofMelndez's case at the initial trial for

fear of recriminations by Falcon.

Rita Reagan Victim of a shooting incident perpetrated by Falcon. Refused

to testify in support ofMelndez's case at the trial for fear of

recriminations by Falcon.

Rivera, Dorothy Melndez's alibi.

Roper (Agent) Agent of the Florida Department of Law Enforcement. Officer

initially contacted by Falcon.

Wells, Dwight Attorney with whom James had spoken prior to the initial trial.

Case Review produced by Ashurst


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Case SummaryJUAN ROBERTO MELENDEZ

On 13 September 1983, the body of Delbert Baker was found in his beauty school in Auburndale,

Florida, having had his throat cut and been shot three times.

On 26 April 1984, an indictment was filed against Juan Roberto Melndez for first degree-murder

and armed robbery after David Falcon and John Berrien testified that Melndez was the man

responsible for Baker's murder. On 20 September 1984, the Circuit Court found Melndez guilty

of both offences and he was sentenced to death.

Melndez appealed against his conviction and sentence. This appeal was dismissed by the

Supreme Court of Florida in 1986. Between 1989 and 2000 Melndez repeatedly filed motions to

have his conviction set aside, which were also denied. Melndez's arguments included:

The ineffective assistance of his trial counsel at both the guilt-innocence phase and thepenalty phase, for example, counsel's failure to advise Melndez of the consequences of not

presenting mitigating evidence during the penalty phase of his capital trial;

The State's intentional withholding of material and exculpatory evidence in violation ofBrady v. Maryland[373 U.S. 83 (1963)], for example, the fact that police reports of the

investigation were not prepared until six months after the date of the murder; and

There being newly discovered evidence and exculpatory material in relation to Melndez'sconviction, for example, a transcript of a recorded interview of Vernon James confessing to

being involved in Baker's murder.

Melndez further submitted there had been numerous errors during the pre-trial investigation

and that evidence material to his defence had been omitted during the original trial itself,

ultimately contributing to his wrongful conviction. These alleged errors and omissions included:

Pre-trial errors committed by the law enforcement agency in not collecting or preservingphysical evidence;

The decision to abandon a lead identifying Vernon James as a potential suspect (whosetaped confession was later to be a decisive factor in Melndez's release); and

Evidence that was available to impeach the testimony of the State's two key witnesses,David Falcon and John Berrien, but which was not presented to the jury, for example the

payment of $5,000 to Falcon for his testimony.

On 19 October 2000, Melndez filed a third motion for post-conviction relief reiterating the

ineffective assistance of his defence counsel, raising Brady violations and raising the existence of

new evidence, which included a transcript of a taped interview with Vernon James in which heconfessed to Baker's murder.

On 5 December 2001, Florida Circuit Court Judge Barbara Fleischer overturned Melndez's

murder conviction after determining that the cumulative effect of the issues raised by Melndez

undermined the confidence in the outcome of his original trial. The Circuit Court vacated and set

aside Melndez's conviction and sentence and granted him a new trial.

On 3 January 2002, Melndezwas released from prison after the State decided to abandon thecharges against him. On the date of his release, he had spent a total of 17 years, eight months

and one day on death row.

Case Summary produced by Ashurst

One For Ten: Juan Melendez Legal Review

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