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Frank Lee SMITH





Classification: Murderer
Characteristics: Juvenile - Robbery - Rape?
Number of victims: 2 - 3
Date of murders: 1960 / 1965 / 1985
Date of birth: 1947
Victims profile: Stabbed boy in argument / Shot holdup victim / Shandra Whitehead, 8 ?
Method of murder: Stabbing with knife / Shooting
Location: Broward County, Florida, USA
Status: 11 months juvenile detention, 1960-61. Sentenced to life term, 1966. Sentenced to death on May 2, 1986. Died in prison on January 30, 2000. Exonerated on December 15, 2000

After fourteen years on Florida's death row, Frank Lee Smith died of cancer on January 30, 2000, before he was exonerated of rape and murder. On April 15, 1985, the eight year old victim died from injuries sustained from an attack in her home by a burglar. Repetitive blows from a blunt object, later found to be a rock, in addition to attempted strangulation, contributed to the victim's death. An autopsy revealed that the victim had been raped and sodomized.

Through shaky eyewitness descriptions from neighbors, Chiquita Lowe and Gerald Davis, as well as the victim's mother, the investigation came to be centered on a black male, about six feet tall, with muscular upper arms, shoulders and chest, a dark complexion, about thirty years old, and wearing an orange t-shirt and jeans. Lowe testified that, on her way home, she was flagged down by an unidentified black male with a full beard, scraggly hair, and a droopy eye. From a composite sketch the police put together with Davis and Lowe, Frank Lee Smith was arrested on April 29, 1985.

The prosecution relied on the identification of Smith by the victim's mother and Smith's criminal history. She identified him as the man she saw leaving her home through the living room window on the night of the murder. At trial, the defense's insanity plea failed and the jury unanimously recommended the death penalty. Although former Governor Bob Martinez signed a death warrant in 1989, Smith was able to win a stay of execution in January 1990.

In 1998, the state Supreme Court ordered a trial judge to hold an evidentiary hearing based on Smith's claim of new evidence, which had nothing to do with DNA evidence. During this trial, three witnesses including the victim's mother, testified against Smith. But eyewitness Lowe changed her story, having been shown a picture of another suspect by a defense investigator, and the defense began requesting DNA testing. Only after Smith's death was a blood sample from Smith obtained by the state prosecutor's office, which was then tested against a semen sample taken from the victim's vagina. The samples were sent to the FBI laboratory, which reported that Frank Lee Smith was excluded as the depositor of the semen.

On December 15, 2000, eleven months after his death, and fourteen years after his 1986 conviction, Frank Lee Smith was exonerated based on exculpatory DNA testing results. These results not only cleared Smith of the crime, but identified the true perpetrator, Eddie Lee Mosley, a convicted rapist and murderer, currently living in the Tacachale State Center for mentally retarded defendants in Gainesville, Florida.


Frank Lee Smith - Florida Death Row - March 14, 2002

In December 2000, after spending fourteen years on Florida's Death Row, Frank Lee Smith was finally cleared of the rape and murder of eight-year-old Shandra Whitehead. Like nearly 100 prisoners before him, Smith's exoneration came as a result of sophisticated DNA testing unavailable when he was first convicted.

But for Frank Lee Smith, the good news came too late: Ten months before he was proven innocent, Smith died of cancer in prison, just steps away from Florida's electric chair. How did Frank Lee Smith end up on Death Row for a crime he didn't commit? And why was he allowed to die there despite possible evidence of his innocence? Award-winning producer Ofra Bikel explores these and other questions in FRONTLINE's "Requiem for Frank Lee Smith."

"I can understand how innocent people can end up in prison for something they did not do," says Bikel, whose documentary "A Case for Innocence" led to the exoneration and release of three longtime inmates as a result of DNA testing. "What I cannot understand--and what drives me crazy--is how people in prison, sometimes on Death Row, cannot get out even when they are innocent."

Bikel was recently credited with winning freedom and a new trial for 21-year-old Terence Garner, When her FRONTLINE film "An Ordinary Crime" presented strong evidence of Garner's innocence in a 1997 shooting and robbery for which he'd been sentenced to more than thirty years in prison. "I'm thrilled about Terence," she says, "but I can't help thinking of all the other Terences out there about whom I didn't make documentaries."

In the case of Frank Lee Smith, there were no eyewitnesses to the murder of Shandra Whitehead--just her mother's glimpse of a man's shoulders as he fled the family's Fort Lauderdale home that night in April 1985. What's more, there was no physical evidence to tie Frank Lee Smith to the crime. What prosecutors did have were reports from two people--Chiquita Lowe and Gerald Davis, both 19--each of whom reported spotting a scraggly-haired, delirious black man with a droopy eye in the neighborhood at the time of the crime. Not long after the two teens helped police develop a composite sketch of the man they saw, Lowe's family excitedly told her that the man in the sketch was standing outside their home, trying to sell them a television set. They urged her to call the police.

The man outside Lowe's house was Frank Lee Smith, 38, a former convict out on parole after serving fifteen years in jail for manslaughter and a murder committed while he was a teenager. Based upon Lowe's identification, Smith was arrested and charged with Whitehead's murder. Lowe was to be the star witness at Smith's trial, but she began to have doubts. "When I went into the courtroom and seen [Smith], he was too skinny, too tall, and he did not have the droopy eye," she tells FRONTLINE.

Despite her misgivings, Lowe confirmed her identification of Smith at the trial. "I was pressured by my family, people that's in my neighborhood, and the police officer," she says. "They kept telling me that I'm the only one that seen that man that night." Based mainly upon Lowe's testimony, Smith was convicted and sentenced to death.But shortly after the state scheduled Smith's execution in 1989, defense team investigator Jeff Walsh came across the name of Eddie Lee Mosley, a suspect in a number of rapes and murders of young black women that had occurred in Shandra Whitehead's neighborhood.

Mosley was well-known to local law enforcement. In fact, two local police officers had begun to detect a pattern between local murders and Mosley's release from prison or mental hospitals. "When [Mosley is] incarcerated there are no unsolved rape/murders of black females in northwest Fort Lauderdale," police officer Kevin Allen tells FRONTLINE. "Immediately upon his release or within thirty days, we find a black female [murdered] at the rate of one a month until he is incarcerated again. And that history...repeated itself consistently...."

At the time of Shandra Whitehead's murder, Walsh learned, Mosley was back on the streets. He was also acquainted with the victim: Shandra's mother was his cousin. But even more striking was his mug shot: Mosley bore an uncanny resemblance to the police sketch of the suspect--droopy eye and all. When Walsh showed Mosley's photo to Chiquita Lowe, she says she immediately recognized the man she saw the night of the murder. "I seen the man like I seen him yesterday," she tells FRONTLINE. "I seen the droopy eye, I see the look on his face and it just shook me up." She was also stricken with remorse for implicating Frank Lee Smith. "This is an innocent person that been to jail,"she says. "This man did not do this, and I feel so bad, so guilty, so ashamed."

Armed with Lowe's sworn affidavit attesting to her incorrect identification, Smith's defense attorneys were optimistic as they went into an evidentiary hearing before the Florida Supreme Court. But the optimism was short lived. In "Frank Lee Smith," FRONTLINE explores allegations that the Florida authorities attempted to discredit Lowe's new testimony by claiming to have shown her Mosley's photo at the time of the murder.

Despite having previously testified that Lowe had been shown two lineups, lead Detective Richard Scheff--who was nominated for Deputy of the Month for solving the Whitehead case--now testified that there had been a third lineup that included Mosley. Lowe did not identify Mosley at that time, Scheff testified. Based on Det. Scheff's testimony regarding the third lineup--and Lowe's somewhat halting testimony--the court denied Smith's motion for a new trial. Smith would wait seven years for another hearing.

FRONTLINE follows Smith's story through several motions requesting DNA testing, all of which were ultimately denied by the state. The authorities would eventually test Smith's DNA posthumously after Eddie Lee Mosley was linked through DNA tests to two other murders for which an innocent man had been convicted. The results of the belated DNA tests--which confirmed that Shandra Whitehead had been raped and murdered by Eddie Lee Mosley--were of little comfort to Chiquita Lowe."I didn't get a chance to even ask him is he upset with me, and that's something that's really just inside of me, just tearing me apart," she tells FRONTLINE. "If it wasn't for me, he wouldn't have to go through all that torture and torment...I feel that it's my fault."

Defense investigator Walsh tells FRONTLINE that the last time he visited Smith in prison, his client was essentially naked and chained to a hospital gurney. Smith was dehydrated, Walsh says, and looked as though he were starving. "It just goes back to the truth of the matter," Walsh says. "[The authorities] just didn't care about him as a human being at all."



A. The original trial proceedings.

On May 9, 1985, Frank Lee Smith was indicted for first-degree murder, sexual battery, and burglary in the Seventeenth Judicial Circuit, Broward County, Florida. Mr. Smith was tried in January 1986 and convicted on all three counts (R. 1252). The Florida Supreme Court has noted the jury in this case had some difficulty in reaching a guilty verdict:

Of the witness identifications presented at trial, that of [Chiquita] Lowe clearly was the most credible. After the jury had deliberated for five hours, it requested that it be permitted to rehear Lowe's testimony. The court declined. One hour later, the jury repeated its request. The court acceded. Two and one-half hours later, the jury rendered its verdict.

Smith v. Dugger, 565 So. 2d 1293, 1296 (Fla. 1990).

After a one-day penalty phase, the jury recommended a death sentence (R. 1364). On May 2, 1986, Circuit Judge Robert Tyson sentenced Mr. Smith to death (R. 1440). The Florida Supreme Court affirmed on direct appeal. Smith v. State, 515 So. 2d 182 (Fla. 1987). The United States Supreme Court denied certiorari. Smith v. State, 485 U.S. 971 (1988).

Mr. Smith was convicted based on the testimony of three "eyewitnesses" -- none of whom actually saw the crime occur. The victim's mother, Dorothy McGriff, saw a man outside her house just before she found her daughter. Chiquita Lowe testified that a man flagged down her car near the victim's house on the night of the crime and asked her for money. Gerald Davis was walking on the victim's street on the night of the crime when a man approached him and offered him drugs. There was absolutely no physical evidence linking Mr. Smith to the crime or the crime scene -- no hair, no fingerprints, no blood, no fibers matching Mr. Smith were found.

The Florida Supreme Court noted in 1990 that of the three eyewitnesses, Chiquita Lowe "clearly was the most credible." Smith, 565 So. 2d at 1296. The Court specifically noted that Dorothy McGriff "could not identify [the man's] face. She later identified Smith based only on his shoulders." Id. at 1295. Of Gerald Davis, the Court observed that "[he] could not remember `how the guy looked.' He testified that Smith looked like the man but he could not identify him positively." Id.

On April 14, 1985, eight-year-old Shandra Whitehead was raped and murdered in Ft. Lauderdale, Florida. The crime occurred between 10:30 or 10:40 p.m., when Shandra's aunt checked on her and her brother Reginald (R. 608), and 11:30 p.m., when Shandra's mother arrived home from work and found her daughter (R. 635). Ms. McGriff testified that as she pulled her car into the driveway that night, she saw a man at the side of the house reaching in through a window (R. 635-37). Ms. McGriff yelled at the man and then jumped out of the car, grabbed a slingblade, and chased the man away from the house (R. 638). The man ran from Ms. McGriff and jumped over a chain-link fence into the backyard (R. 639). Ms. McGriff then went into the house where she found her daughter (R. 641).

In addition to Ms. McGriff, the police found two witnesses whom they believed saw the man who raped and killed Shandra Whitehead -- Gerald Davis and Chiquita Lowe, two teenagers who lived in the victim's neighborhood. Mr. Davis testified that on the night of the murder he was out walking at about 9:30 or 10:00 p.m. when a man called to him from the empty field across the street from Shandra's house (R. 745-46). As Mr. Davis continued walking, Chiquita Lowe drove up to him and stopped to talk (R. 747). After Ms. Lowe drove away, the man ran to Mr. Davis; he told him that he had just moved from New York, offered him drugs, and made a sexual proposition (R. 748). Mr. Davis testified that he "paid him no mind because [he] didn't want to be bothered." (R. 749).

Chiquita Lowe testified that at about 10:30 p.m. she was driving down Shandra's street when a man came out of Shandra's yard and flagged her down; the man approached the car, leaned into the driver's side window, and asked for money (R. 668-69). The man left when Ms. Lowe told him that she had no money (R. 669). Ms. Lowe continued driving and stopped about a minute later to talk to Mr. Davis (R. 673).

On April 17th, Mr. Davis and Ms. Lowe assisted the police in the creation of a composite sketch of the suspect (R. 675, 752). Detective Amabile testified that Ms. McGriff did not participate in drawing the composite sketch because Ms. Lowe and Mr. Davis "had more of an eye for detail" and because Ms. McGriff was "emotionally distraught" and was "a simple woman and could not articulate what she was trying to tell us" (R. 886-87). Detective Scheff testified that Ms. McGriff did not participate in creating the composite because he was "fairly certain" that she had seen the same man as Lowe and Davis; he also agreed that Lowe and Davis "were much more articulate than she was." He explained that "[t]he ability to do a composite depends upon the witness' ability to visualize the person." (R. 969). Before the composite sketch was distributed in the neighborhood, it was shown to Ms. McGriff who, according to Detective Scheff, "gave . . . a very positive reaction." (R. 971).

Mr. Smith was arrested outside his home on April 18, 1985 (R. 855). Detective Scheff had received a call from Ms. Lowe regarding a man who had come to her house with a shopping cart trying to sell a television (R. 971). Detective Scheff testified at trial and in his deposition that Ms. Lowe spoke to the man with the television and immediately recognized him as the man she saw near the crime scene (R. 1031-33). Detective Scheff explained that Ms. Lowe believed that the man had used the television as a ruse to get to her because he somehow knew she was a witness in this case (R. 1033). However, Ms. Lowe testified that when the man came to her house with the television, she was asleep (R. 676). Her family members spoke to the man with the television, saw the composite sketch, and became convinced that he was the same man (R. 677-78). Ms. Lowe looked out a window and saw the man walking away through an alley across the street from her house (R. 677). Mr. Smith was arrested several hours later. He was never seen by the police with either a shopping cart or a television (R. 856).

The defense strategy at trial was to challenge the three witnesses' identifications of Mr. Smith and to suggest that the police had not properly eliminated other suspects. As the Florida Supreme Court noted, the testimony of Ms. McGriff and Mr. Davis identifying Mr. Smith was extremely weak: Ms. McGriff, though positive about her identification, admitted that she did not see the man's face, and Mr. Davis, who reluctantly identified Mr. Smith, repeatedly told the police he did not remember what the man looked like. Assistant State Attorney William Dimitrouleas' closing statement demonstrates that the State had only one strong witness who could identify Mr. Smith. Mr. Dimitrouleas told the jury:

I don't care how much Gerald Davis' testimony was attacked, how much his identification is attacked, there has never been any question as to the fact that there was a weird strange guy that was talking to Gerald Davis that evening and what he said was bizarre.

(R. 1156). Mr. Dimitrouleas then bolstered Mr. Davis' identification and encouraged the jury to overlook his inconsistent statements and hesitation by reassuring the jury that he and Ms. Lowe saw the same person (R. 1158). Mr. Dimitrouleas also reassured the jury that Ms. McGriff's identification of Mr. Smith based only on his shoulders is reliable because Mr. Smith has a "distinctive" upper body (R. 1160).

On April 15, 1985, Ms. McGriff gave the following description of the man to the police: "medium build, heavy in the chest, lower haircut, black man, dark skin with jeans, pair of brown suede shoes, orange T-Shirt with writing across the chest." (R. 650). Ms. McGriff testified that when she gave her first statement to the police she did not know what the man looked like (R. 651) and that she told the police she would not be able to recognize the man's face (R. 658, 663). At her deposition, Ms. McGriff testified that she could not describe the man's face (R. 655). Ms. McGriff testified that she only saw the man for a couple seconds (R. 651-52). She explained:

Q Isn't it true you weren't actually paying too much attention to the man itself? You were basically interested in getting him away from your window?

A That is true.

Q Isn't it true when the person turned his face around it was flashing so quickly you didn't get a good look to see whether he was wearing glasses or not?

A That's right.

(R. 653-54).

Ms. McGriff explained how she identified Mr. Smith from the photographic line-up:

Q (By Mr. Washor) You didn't get a good look at his face, isn't that correct?

A No.

Q Isn't it fair to say there was nothing about this person's face that stuck out in your mind at all because everything happened in a flash?

A Pardon me?

Q Nothing about this person stuck out in your mind because everything happened in a flash?

A Yes.

Q Isn't it also fair to say everything was dark from this person's head down to his shoulders?

A Yes.

Q But from his shoulders down, you can describe his clothing because the light was shining on the clothing; isn't that correct?

A Yes.

Q Wouldn't it be fair to say you picked that picture of Mr. Smith based upon his shoulders?

A Yes.

Q You couldn't identify his face, right?

A No.

Q If I showed you a picture of his face, you couldn't tell me whether that was the man or not; correct?

A Yes, from his shoulders.

Q Yes, I'm correct. If I show you a picture of the face of the man you couldn't tell me?

A No.

Q You could not, correct?

A No.

Q Isn't it true that you couldn't see the person's face at all, describe it, because it was just a flash that you saw?

A Yes.

(R. 655-56). Although Ms. McGriff testified that she identified Mr. Smith from his shoulders, his shoulders are not visible in the photo line-up which includes only Mr. Smith's face and neck.

Mr. Davis gave the following description to the police: "maybe six feet, a hundred and sixty, hundred seventy pounds, like muscular, chubby stomach, really couldn't tell, it was dark and he had a beard that was very tacky, like he did not keep it up and kinky hair." (R. 766). Mr. Davis testified that he was trying to avoid the man: "I didn't really want to be bothered with him because I did not know the guy. . . . I was like paid him no mind because I didn't want to be bothered." (R. 748-49; see also 750, 768, 770). Mr. Davis explained that he did not get a good look at the man because the streetlights were out (R. 773), he was ignoring the man and hoping he would go away (R. 777), he only looked at him for a few seconds (R. 778), and he "was never looking at him directly." (R. 776). Mr. Davis tried to explain his numerous inconsistent descriptions:

What I'm saying, I said it was dark. I was trying to avoid the guy. I don't remember exactly.

(R. 777). Mr. Davis told the police that nothing about the man stuck out in his mind and that he was unsure whether he would be able to recognize the man (R. 772, 778).

Mr. Davis could not identify Mr. Smith from the photo line-up that was shown to all three witnesses and insisted on seeing a live line-up before he would make an identification (R. 1051). Mr. Davis was uncomfortable with his identification of Mr. Smith from the live line-up because, as he told Detective Scheff, Mr. Smith did not look as large as the man he saw on the night of the crime; Mr. Davis explained that when he voiced his concern about Mr. Smith's size, the police "said to me that the reason it's like that because all the guys are between six one and six feet and that is why they all seem the same size." (R. 757). After being reassured by the police, Mr. Davis identified Mr. Smith.

Detective Scheff lied to Mr. Davis: the men in the live line-up were not all between six feet and six one. Detective Scheff tried to claim that the men were "[a]bout six feet tall, as close as we could get. I think one was six feet tall, all appeared to be the same." (R. 1048). However, on cross-examination, he was forced to admit that one man was five feet ten inches tall and another was only five feet nine inches tall (R. 1050). Mr. Smith stood between the two shortest men in the line-up (R. 1050). Detective Scheff refused to accept responsibility for the varied heights of the men in the line-up:

I want to say this to you, Mr. Washor, we did not measure these people. I'm basing the physical description on what they are telling me. If they are correct, if they know their height, then that is the correct height. If they are in error, then these figures are going to be in error.

(R. 1049). Detective Scheff claimed that he "tried to get as many people that physically resembled [Mr. Smith] as possible," but he was forced to admit that two men were obviously shorter than the others (R. 1049). Detective Scheff also admitted that none of the men in the line-up weighed more than one hundred and eighty pounds although the descriptions of the suspect in this case all indicated a weight heavier than that (R. 1050). Detective Scheff also agreed that three of the men in the line-up were substantially younger than Mr. Smith: by fourteen, seventeen, and thirteen years (R. 1050). Detective Amabile confirmed that Mr. Smith was the oldest and the tallest man in the line-up and that he was situated between the two shortest men (R. 942).

Mr. Davis also testified that the police pressured him to make an identification and used suggestive tactics. During Mr. Davis' first statement to the police, he said in response to their questions that the man did not have any scars on his face (R. 769). However, during his second statement, Mr. Davis said that the man had a scar on his cheek (R. 788). Mr. Davis explained why his description regarding this detail changed:

Q What, if any, recollection do you have regarding whether the fellow had any scars?

A I don't remember.

Q Do you recall having a conversation with the police or in a deposition later on about scars?

A Yes.

Q Do you recall what that conversation was?

A It was, did he have a scar. I said, I think so.

Q Would that have been based on something that you were remembering or something that the police had told you or do you know?

A Something that they were telling me.

Q You don't have any recollection of the scar?

A No, I don't remember a scar.

(R. 757-58). Between Mr. Davis' first and second statements, Mr. Smith was arrested. The police, noticing that Mr. Smith has a scar on one cheek, realized that they needed to alter Mr. Davis' description. As Mr. Davis explained, his revised description of the scar on the man's cheek was based "[o]n something that [the police] were telling me." (R. 758). Mr. Davis was clearly confused at the trial when he tried to explain his inconsistent statements regarding the scar: "I probably said scar at one time but I probably said he didn't have any scars. He didn't have any scars." (R. 769).

Detectives Scheff and Amabile were also forced to explain Mr. Davis' inconsistent statements regarding whether the man he saw on the night of the crime had a scar. Detective Amabile initially confirmed Mr. Davis' memory of his first statement to the police when he said that the man had no facial scars (R. 925). During redirect examination, Detective Amabile changed his testimony:

Q Did you all come out point blank and say, did the guy have any scars?

A No.

Q What exactly was Gerald Davis asked?

A He was asked if he had any scars, marks, tattoos, missing gold teeth. It was all one sentence that was asked.

Q What was his response to the whole line of things?

A No.

Q Now when he said no, did you catch that he was saying no to scars?

A No.

Q Had he previously told you about a scar?

A Prior to taking a taped statement is when he told us about the scar.

(R. 953).

On cross-examination, Detective Scheff clearly became defensive when Mr. Smith's attorney asked about Mr. Davis' description of the suspect regarding the scar:

Q I believe on your direct examination when you said when speaking to Davis during this first statement, that he stated that the man had a scar on his face?

A That's correct.

Q Are you positive about that?

A Absolutely.

Q Would you like to refresh your memory at all?

A No, sir.

Q Do you remember Mr. Davis saying anything contrary during your conversation with him, your taped conversation with him?

A Well, I know I believe I know what you are referring to.

Q What am I referring to?

A You're referring to the question in which he responds with a, no, to the question in reference to scars and he responds with a negative and says, no, but I believe that was my fault and not his.

Q Did he or did he not say that?

A If you want to refer to the question, I'll show you what I'm talking about. I know what you are talking about.

Q The first statement, page five, was there anything about him you remember, anything like missing teeth, anything that stands out in your mind, scars he might have had. And his answer, no.

A That's correct.

Q He did say no?

A Yes, but actually if you take a look at that question I have really asked him four questions and unfortunately if you are asking me why this happened, I can only --

Q I'm asking you what he said?

A He said no on the tape.

Q But it's your testimony that when he was off the tape he said, yes?

A That's correct.

(R. 1013-14). Mr. Davis said on tape that the man had no facial scars. Because this description is inconsistent with Mr. Smith's appearance, Detective Scheff claimed that off the tape Mr. Davis said the man did have a facial scar. Although Detective Scheff admitted that a facial scar would be "an important factor" to use in identifying a suspect, he did not think that Mr. Davis' untaped description of the scar was important enough to be included in his handwritten notes (R. 1014-15).

Mr. Davis testified at his deposition that the police were also giving him hints and speaking in a suggestive manner when they showed him the photo line-up (R. 786). When he viewed the live line-up, the police instructed him to pick out the person who "looks like" the man he saw near the crime scene; they did not tell him to pick only the man he actually saw (R. 789). In addition, Mr. Davis was shown a picture of Mr. Smith immediately before he viewed the live line-up (R. 789, 797-98). At his deposition, Mr. Davis testified that the police instructed him to pick out the man who looked most like the man in the picture he had just been shown (R. 790).

Mr. Davis admitted that he was unsure of his identification but that he felt compelled by the police to make an identification:

Q Isn't it true you can't honestly swear to me right now that the man you picked out in the live line-up is the same man you saw that night?

A No, I can't say he is exactly the same guy but he looks like the guy.

Q My question is: You can't honestly say that is the same man, can you?

A No.

Q But the police had you fill out a form, correct, to indicate that you picked out number five or whoever?

A Yes.

Q And didn't you keep on saying you weren't sure, only that he looks like the guy?

A Yes.

Q Isn't it true that if the guy came up to you right now you couldn't say whether it was the guy you saw on the street or not?

A No.

Q Why did you identify Mr. Smith?

A I identified him as the guy I picked out of the line-up and the guy I talked to but - which I have been saying from the beginning, I don't remember how the guy looked.

Q Didn't you feel compelled by the police in the live line-up to pick somebody out?

A Yes.

Q Isn't it true that the man you picked out in the live line-up, Frank Smith, was not as big as the guy you saw on the street?

A No.

Q That's true, isn't it?

A Yes.

Q Didn't you keep saying to the police, I don't know if this is the guy and didn't they keep saying to you, don't feel that you are going to send an innocent man to jail in an effort to get you to stick to your story?

A Yes.

Q Wasn't it apparent to you that the police wanted you to make an identification?

A Yes.

(R. 792-94)(emphasis added). Mr. Davis also testified that the police did not record his statements when he told them he was unsure of his identification; the only statement that was taped was his reluctant agreement with the detectives that Mr. Smith was the man he saw near the crime scene (R. 795).

Detective Scheff admitted that after choosing Mr. Smith from the line-up Mr. Davis "began to say that he wasn't sure that the person he had picked was the same person he had seen that night." (R. 991). Detective Scheff offered his own opinion about Mr. Davis' equivocation:

Well, it became clear that it was not the identification he was having a problem with but it was his testimony. The fact that he was going to have to appear in court, that he was reluctant to.

(R. 992). Despite Detective Scheff's opinion that Mr. Davis was a reluctant witness, his inconsistent statements and hesitation about the identification of Mr. Smith were caused by his doubts that Mr. Smith was the man he saw on the night of the murder.

Because of Mr. Davis’ hostility towards the State and allegations of police misconduct, Assistant State Attorney Dimitrouleas requested that Mr. Davis be called as a court witness:

Based on his changing his testimony from the sworn statement to the police to what he said on deposition. I can't vouch for his credibility. He's saying basically now, before he made the live line-up identification that the police showed him a photo line-up, again, which they emphatically deny. Contrary to what he said in the sworn statements he's positive he's now saying, all he can say is the guy looks like the guy.

(R. 742). Over defense objection, the court granted the State's request thereby allowing the State to challenge Mr. Davis’ claims of police misconduct in getting him to identify Frank Lee Smith.

Chiquita Lowe was the State's strongest identification witness at Mr. Smith's trial. She identified Mr. Smith as the man she saw on the victim's street on the night of the crime (R. 707). However, several aspects of Ms. Lowe's testimony reveal that, like Gerald Davis, she was manipulated by the police. Most telling, Ms. Lowe testified that the man she saw had a droopy eye "like it was weak. It needed glasses." (R. 683). Ms. Lowe and Mr. Davis testified that the man they saw was not wearing glasses (R. 696, 764). Ms. Lowe told the police about the droopy eye, and the composite sketch clearly indicates that both she and Mr. Davis observed this distinctive characteristic. This description presented two problems for the police after Mr. Smith's arrest: first, Mr. Smith does not have a droopy eye, and second, Mr. Smith is legally blind and cannot function without very thick glasses (See Dr. Hathaway testimony first proffered in 1991). Ms. Lowe was coached by the police to offer her inexpert opinion about the man needing glasses in an attempt to reconcile her identification of Mr. Smith with her testimony about the man's droopy eye and lack of glasses.

Ms. Lowe's testimony was also inconsistent regarding the clothing worn by the man she saw on the night of the crime. The police found a blue windbreaker in a truck across the street from the victim's house (R. 962). Apparently, the police wanted to link the windbreaker to the crime although it was of no evidentiary value. Ms. Lowe testified that the man she saw on the night of the crime was wearing a blue windbreaker (R. 682). However, in her initial statement to the police, Ms. Lowe said she was unsure what the man was wearing, but thought she may have seen a white shirt or a white shirt with red stripes (R. 690). Ms. Lowe never mentioned a blue windbreaker to the police (R. 698).

Ms. Lowe's trial testimony also omitted an important detail from her initial description of the man she saw. She told the police that the man had big arms and a big chest (R. 688). Ms. Lowe initially denied this statement because when she viewed Mr. Smith in court she realized that he did not match the description. Finally, Ms. Lowe, like Gerald Davis, told the police that the man she saw did not have any scars on his face (R. 706-07). Ms. Lowe admitted at Mr. Smith's trial that he has a scar on one cheek (R. 707).

In addition to challenging the three witnesses' identifications of Mr. Smith, defense counsel also suggested that the police had not sufficiently eliminated other suspects. Detective Scheff testified that he investigated two other men as suspects: Arcy Nealy Williams was eliminated because he had an alibi (R. 963-64), and James Freeman was eliminated because the witnesses did not choose him from a line-up (R. 965-66). Detective Scheff also testified that Edwin McGriff, Eddie Lee Mosley, "Gator Mouth," and "Big John" were suspects (R. 1022, 1024-25).

Detective Scheff testified that other than Freeman, no other suspects were ever shown to the witnesses in either a live or a photo line-up (R. 946, 1026). Detective Amabile's testimony is consistent that he showed the three witnesses two photo line-ups: one including James Freeman and the other including Frank Lee Smith (R. 881-82, 907). The two photo line-ups were offered into evidence by the State (State Exhibit 105, line-up of James Freeman at R. 880; State Exhibit 81, line-up of Frank Lee Smith at R.--- ). Detective Amabile testified that he and Scheff followed up on the names of all suspects who came to their attention and that they eliminated all other suspects to their satisfaction (R. 948-49). Detective Scheff explained that once a name is brought to his attention as a possible suspect, "I have an obligation to follow up certainly and eliminate them as potential suspects." (R. 1055). In regard to this investigation, he testified that he had eliminated all possible suspects (R. 1056).

Detective Scheff was specifically asked about Eddie Lee Mosley and about the victim's relatives:

Q Was Eddie Lee Mosley ever a suspect in this case?

A Eddie Lee Mosley was a suspect in this case along with Edwin McGriff. Initially when we first began investigating the case, really had no specific direction to go in.

(R. 1024). Detective Scheff attempted to downplay the significance of being a suspect in this case by explaining that "[a]t one point or another almost everybody in Fort Lauderdale was a suspect." (R. 1023).

During his deposition, Detective Scheff did not mention Eddie Lee Mosley at all despite Mr. Smith's attorney's exhaustive questioning regarding the four day investigation of this case. Detective Scheff detailed his activities for each day and each time was asked whether anything else was done:

Q Did that finish it for the 16th?

A Yeah, sure did.

(Scheff depo at 41).

Q Anything else happen on the 17th of any consequence?

A No.

(Sceff depo at 48).

Q Was anything else done on the 18th that we haven't discussed?

A No.

(Scheff depo at 69).

Q After the 4 a.m., April 19th meeting with the Irvings, Bertha and family, where did your investigation take you?

A Then, it took me home to bed.

(Scheff depo at 81). Detective Scheff repeatedly told Mr. Smith's attorney that nothing else had been done that was not discussed. He provided information about other suspects, including a tip regarding a possible suspect named "Gator Mouth" that was received after Mr. Smith's arrest (Scheff depo at 93-95), and discussed potential evidence that was determined to be unreliable and was not used in the case against Mr. Smith (Scheff depo at 91-92). The deposition concluded with the following question and answer:

Q Is there anything else that's happened in this case that we haven't discussed?

A I don't think so. Not that I can think of.

(Scheff depo at 97).

When specifically asked about relatives of the victim, Detective Scheff did not tell Mr. Smith's attorney that Eddie Lee Mosley, Dorothy McGriff’s cousin, was investigated as a suspect:

Q Did you have, at this point in time, anybody in mind?

A You mean, as a suspect?

Q Yes.

A Oh, no.

Q How about any relative of the deceased, uncles, cousins?

A We had booked an individual by the name of Edwin McGriff, who is a cousin to Dorothy [the victim's mother]. As I had indicated earlier, we checked with - on the first night, for similar crimes. And, at that point in time, we discovered that Edwin McGriff had been accused, I think, in 1982, of a sexual battery of a minor black female child, and subsequently, we sat Dorothy McGriff down and explored the possibility with her that it might have been her cousin. She was quite emphatic that the person she had seen was not her cousin and that she was being truthful. It was my feeling that she was.

(Scheff depo at 44). Detective Amabile also testified that Edwin McGriff was the only member of the victim's family who was investigated as a suspect (R. 946). However, in contrast to Detective Scheff's deposition testimony regarding his conversation with Ms. McGriff about Edwin McGriff, Dorothy McGriff testified that she did not know that her cousin Edwin McGriff was a suspect (R. 658).

Detective Scheff said nothing about Eddie Lee Mosley, another cousin of the victim's mother, being a suspect. He said nothing about checking Mosley's criminal history for similar crimes. He said nothing about eliminating Mosley through a comparison of his modus operandi and that of this crime. Detective Scheff said nothing about showing the three witnesses a line-up including a photo of Eddie Lee Mosley.

At trial, Detective Scheff also testified regarding a statement that Frank Lee Smith had supposedly made. Scheff testified that he and Detective Amabile interviewed Mr. Smith shortly after his arrest. Initially, Mr. Smith identified himself as Frank L. Israel, but then he signed a waiver form as Frank L. Smith (R. 978). Mr. Smith did not have on glasses at the time of the interview (Id). After telling Mr. Smith that Lowe, Davis, and Mrs. McGriff were eyewitnesses and receiving no response (R. 982), Detective Scheff lied to Mr. Smith, telling him that the victim's brother, who was asleep at the time of the offense, had seen the suspect (R. 983). According to Detective Scheff, Mr. Smith became upset and spontaneously said there was no way the boy could have seen him because it was too dark (R. 984).

Detective Scheff's testimony about this statement was inconsistent with a police report written by a Sergeant Carry. According to this report Detectives Scheff and Amabile were in fact the first officers to interview Mr. Smith after his arrest. This interview lasted approximately two and a half hours. Sgt. Carry's report indicates that Detectives Scheff and Amabile were unable to establish any rapport with Mr. Smith or to obtain any statements, so they requested that Sgt. Carry and another officer interview Mr. Smith, which they did at about 6:35 p.m. According to Sgt. Carry's report, it was during his interview with Mr. Smith that Mr. Smith purportedly made the statement. Clearly, this information contradicted Detective Scheff's testimony, casting doubt on whether the statement was made at all and certainly impeaching Detective Scheff's credibility. Trial counsel had this information, but failed to use it.

B. The 1989 death warrant.

The Governor of Florida signed a death warrant against Frank Lee Smith on October 18, 1989, scheduling the execution for January 16, 1990. Under Florida law prior to signing of the death warrant, Mr. Smith had until March 21, 1990, to file post-conviction relief. However, because of the Governor's death warrant, Florida law required that Mr. Smith's post-conviction motion be filed by November 17, 1989. Accordingly on that date, Mr. Smith filed a motion for a new trial in the circuit court.

On December 13, 1989, after a brief oral argument, Judge Robert Tyson summarily denied all relief without conducting an evidentiary hearing (PC-R. 326, 327). Mr. Smith had presented a Brady claim which was summarily denied. This claim was premised in part upon the fact that in 1987, two years after Mr. Smith's conviction, the state attorney was still investigating the case:

On Tuesday, February 24, 1987, this writer, as requested by A.S.A. William Dimitrouleas, compared the fingerprint standards of George Gregory Reddick to latent lifts reference B.S.O. Case #85-4-5789.

All workable latents were previously identified by this writer; however, this writer compared the remaining latents of no value to Reddick's fingerprint standards, and found negative results.

(Broward County Sheriff's Department report)(PC-R. 353). Nothing could be much more exculpatory and material -- and therefore disclosable -- than the prosecutor's own doubts regarding a defendant's guilt.

Mr. Smith also alleged a Brady violation because of the failure to disclose that the State had not, as law enforcement officers testified, eliminated the other suspects in the case but had simply abandoned the investigation of those suspects. There were numerous serious suspects, including Eddie Lee Mosley, who the police simply said "were eliminated as suspects" without providing any reasons for their elimination. Eddie Mosley, was, in fact, linked to over 30 sex crimes involving females from the ages of 7-70. The police eventually "narrowed" down the list of Mosley's victims to ten, but never revealed this information to the defense. The most striking thing to note in all of this is the amazing likeness of Mosley to the composite photo developed by the State. Frank Lee Smith had never been involved in any sex crimes and maintained his innocence of this charge. Eddie Mosley fit the description given far better than Frank Lee Smith. The State never disclosed how they eliminated Mr. Mosley as a suspect.

On December 15, 1989, Mr. Smith timely filed a motion for rehearing (PC-R. 331-33), and on December 18, 1989, a supplement to the motion for rehearing (PC-R. 334-53), which were denied on December 20, 1989 (PC-R. 354-55).

On the night of December 20, 1989, Jeff Walsh, the investigator for Mr. Smith, was finally able to locate Chiquita Lowe. Mr. Walsh showed her a picture of Eddie Lee Mosley, and she immediately identified him as the person who had run up to her car on the night of April 14, 1985. The next morning Chiquita Lowe provided the following affidavit:

1. My name is Chiquita Lowe and I live in Ft. Lauderdale, Florida. I am presently twenty-four years old.

2. In 1985, I testified during a murder trial. A little girl was raped and killed near my grandmother's house. I saw the man in the street right before the crime happened.

3. In 1985, I told the police detectives and the state attorney about how the man asked me for money. I told them that I only saw the man for an instant and that the only things I remembered were the droopy eye, scraggly hair, pot marks on his face, and the ring on his finger.

4. The police detectives and the attorney told me the man had a scar under his eye. I never saw a scar and they knew that. The state attorney told me that the man on trial had committed several crimes just like the one that happened near my grandmother's house. The state attorney also told me that the man on trial was dangerous, guilty of the crime, and needed to be taken off the streets.

5. While I was in the courtroom telling about what I saw, I knew that the man on trial was too thin to be the same man I saw on the street. The police detectives and the state attorney put so much pressure on me to testify against the man on trial.

6. The state attorney told me not to worry about my testimony because the man would be locked up and electrocuted the following May. He also pointed out the man's entire family to me. I was just feeling so pressured.

7. I have not forgotten about the trial and every few months I picture the man's face in my mind. I also remember how sorry I felt for the little girl.

8. On December 20, 1989, I was shown a photo and asked if this was the man who approached me and asked for fifty cents back in 1985. When I looked at the picture everything came back to me. The photo is attached to this affidavit. The man in the photo is without a doubt the man I saw. I know that he is not the same man who was on trial for the little girl's murder. I am so sorry that the wrong man is in prison and sentenced to death. I had doubts in the courtroom but I was under so much pressure. Also, the state attorney told me about how dangerous the man was and how he needed to be locked up forever.

9. I feel so bad that I did not tell the state attorney about my doubts. I did not know what to do. I felt a lot of pressure to say that the man on trial was the man I saw, even though I had doubts, and the man's hair did look the same.

10. I swear on my mother's grave that the man in the photo is the man I saw on the street the night when the little girl was raped and killed. I identified the wrong man in the courtroom.

(Amendment to PC-R. 4-7).

On December 22, 1989, Mr. Smith filed a motion for reconsideration of rehearing based on Chiquita Lowe’s affidavit. After it was denied, Mr. Smith appealed to the Florida Supreme Court on December 26, 1989 (PC-R. 356-57). After hearing oral argument on January 9, 1989, the Florida Supreme Court stayed the execution and subsequently issued an opinion ordering an evidentiary hearing on the Chiquita Lowe affidavit only. Relief was denied on all other issues.

C. The 1991 Evidentiary Hearing

On March 7, 1991, Judge Tyson held an evidentiary hearing as ordered by the Florida Supreme Court. Judge Tyson only permitted Mr. Smith to present Ms. Lowe's testimony. Except for a proffer, the circuit court would not allow Mr. Smith to put in any corroborative evidence that Eddie Lee Mosley, the man Ms. Lowe's affidavit says she saw the night of the offense, was the man who committed this crime, and that Mr. Smith was not that man (P.C.-R. 27-47, 106-07). The proffered evidence included: a list of suspected Mosley victims, newspaper articles regarding Mosley, Dr. Frumkin's psychological evaluation of Mosley, Dr. Cohen's psychological evaluation of Mosley, Leslie Alker's HRS report on Mosley, Dr. Eichert's psychological report on Mosley, Dr. Koprowski's psychological report on Mosley, Cynthia Maxwell's deposition testimony regarding Mosley's sexual assault of her, Lisa Weisman's affidavit testimony regarding Mosley's sexual assault of her, an involuntary hospitalization order regarding Mosley, a motion appointing a mental health expert for Mosley, a Broward Sheriff's Office (B.S.O.) booking sheet regarding Mosley dated 5/19/87, a B.S.O. booking sheet regarding Mosley dated 5/17/84, a B.S.O. booking sheet regarding Mosley dated 4/30/82, a B.S.O. booking sheet regarding Mosley dated 4/12/80, a Ft. Lauderdale police report regarding Mosley dated 12/25/83, and Dr. Hathaway's testimony regarding Mr. Smith's eyesight.

Ms. Lowe's testified at the evidentiary hearing. Ms. Lowe unhesitantly testified that she still recalled very well the moment the man flagged her down on April 14, 1985 (PC-R. 50). Ms. Lowe became "convinced" that Mr. Smith was not the individual she saw on the night of the murder long before she gave her affidavit in 1989. Prior to trial, Ms. Lowe had never seen Mr. Smith in person. She had only seen a photograph of Mr. Smith in a photo lineup. When she saw Mr. Smith in the courtroom, she became "convinced" that Mr. Smith was the wrong man. At the evidentiary hearing, she testified:

Only thing I remember is when I walked into the courtroom . . . I seen Mr. Frank [Smith] standing up there. I had my -- they kept saying is that the man, but I had my doubts that was the man because the man I seen that night he was muscular, big and Mr. Frank [Smith] was not."

(PC-R. 65). Ms. Lowe testified that despite her doubts she identified Mr. Smith at trial as the man she saw (PC-R. 79). When asked why she didn't tell the court and jury that she made a mistake, she testified:

A. No, I couldn't feel like that. Because -- I couldn't. I was confused.

Q. Were you worried while you were testifying about whether or not Mr. Smith was the right person?

A. I was confused.

THE COURT: I didn't hear the answer?

THE WITNESS: Confused.


Q. Can you tell me as best you can what you are thinking? What was it that you were confused about?

A. That they saying they got the man. The man needs to be off the street. He's dangerous and they kept saying "this is the man," you just have to say "this is the man because he need to be off the street." And I was thinking about the little girl's mama, that she's going through this, that had happened with her daughter and everything. I was just confused.

Q. Did you feel a lot of weight on your shoulders?

A. Yes.

Q. When you were in the courtroom and you looked at Frank Lee Smith, did you have nagging doubts in the back of your head?

A. Yes.

* * *


Q. When you looked at Mr. Smith in the courtroom, what were you thinking?

A. What they told me, "the man was dangerous and he needs to be off the street."

Q. What were you thinking about his fitting the description?

A. He didn't fit that description that I sketched out.

Q. When you got off the witness stand, what did you think?

A. Terrible.

(PC-R. 79-80). Ms. Lowe's doubt about her identification of Mr. Smith was present long before 1989. At trial, she knew that Mr. Smith was not the man she saw -- that he didn't fit the description she sketched out. (Id).

She testified that when Mr. Walsh, an investigator with undersigned counsel's office, approached her on December 20, 1989 and showed her a photograph of Mr. Mosley she knew that:

This is the one that flagged me down in the car... [I]t brought moments back of the incident when it happened. ... A warm feeling came over me.

(PC-R. 52). When asked if she was certain Mr. Mosley was the man she saw, Ms. Lowe testified that she was "very, very, very, certain" (PC-R. 52; see also PC-R. 74-75 and 84).

Ms. Lowe testified that once the police arrested Mr. Smith, she was under "a lot of pressure" to identify him as the man she saw that night (PC-R. 63-64, 71). When questioned about her identification of Mr. Smith from the photo lineup, she testified:

They asked me is one of these the guy. I said no, but I said that his hair was like the guy I seen that night.

(PC-R. 71). Ms. Lowe admitted picking out Mr. Smith from the photo lineup but was emphatic that she told the detectives "that the hair was like the guy that [she] saw" (PC-R. 60).

Ms. Lowe explained that Detectives Scheff and Amabile pressured her to make an identification of Mr. Smith at the photo lineup (PC-R. 63). She testified that she was under:

"A lot of pressure ... from the police officer that came out there telling me that the man is dangerous and if he stays out there, he's going to do it to someone else. So I was up on a lot of pressure."

(PC-R. 62-63).

She explained further:

I only told them that the hair look like the man that did it. And when I say the hair that looks like the man that did it, they kept pushing me "Is this the man, Is this the man, Is this the man." ... They kept saying that.

(PC-R. 81).

Ms. Lowe also testified that she felt pressured by the prosecutor (PC-R. 63). She specifically recalled being pressured to say that the man she saw that night had a scar under his eye (PC-R. 53). Of course, Mr. Smith has a significant noticeable scar under his right eye (R. 706). Ms. Lowe said she was pressured to testify at trial about the scar but refused to do so (PC-R. 53). In fact, the circuit court judge at the evidentiary hearing, noticing the scar under Mr. Smith's eye, asked Ms. Lowe about this:

The Court: Ma'am, did you say the person that you saw did or did not have a scar?

The Witness: The man that learned in my car? No scar.

The Court: Did not have a scar?

The Witness: No scar.

(PC-R. 87-88).

Ms. Lowe testified that she felt pressure from not only the state but also from her neighborhood, people she knew, and friends (PC-R. 78). Moreover, Ms. Lowe was constantly thinking about the victim:

I know that little girl got killed. I know she had got killed and that's all that was going through my mind, the little girl got killed.

(PC-R. 86). As a result of all this pressure, Ms. Lowe was, in her words, "confused" when she finally saw Mr. Smith in person and realized he was not the man she saw that night (PC-R. 79). At the time of Mr. Smith's trial, Ms. Lowe was only 19-20 years old (PC-R. 77).

Ms. Lowe's hearing testimony left no doubt that at Mr. Smith's trial she realized that Mr. Smith was the wrong man. On December 20, 1989, this was only confirmed when she saw Mr. Mosley's photo and became convinced that Mosley was the individual she had seen at her home near the time of the homicide. The State questioned her about having been convicted of a theft charge subsequent to Mr. Smith's trial. Ms. Lowe openly admitted that she had been convicted of a theft charge (PC-R. 73).

In light of Ms. Lowe's recantation, the State attempted to establish that Ms. Lowe was merely confused and that she had, at the time of the pretrial investigation, been shown a photo lineup containing Mr. Mosley's photo which she failed to recognize. When asked if she had been shown a photograph of Mr. Mosley pre-trial she emphatically stated she would recognize Mosley if she saw him (R. 69), that "they didn't show me no picture of him," (PC-R. 70) and that "the only thing that was close to the guy that I seen that night" was the composite sketch they drew (PC-R. 70). Moreover, Ms. Lowe's testimony at the evidentiary hearing was consistent with her trial testimony that she had only been shown two photo lineups -- the one containing Mr. Smith's photograph and another containing a photograph of a previous suspect, a Mr. Freeman. When questioned about being shown photographs other than the photo lineup containing Mr. Smith's photograph, Ms. Lowe testified:

I do know that they did show me some more photographs because it was a guy in the photographs they kept questioning me about. I don't know him personally, but I knew him.

(PC-R. 69). Ms. Lowe testified at trial about this same photo lineup containing a photograph of Mr. Freeman, a man from the neighborhood that she recognized (R. 684). Although she recognized Mr. Freeman, she said that he was not the man she saw on the night in question (R. 684). At trial, as at the evidentiary hearing, Ms. Lowe testified about only those two photo lineups -- there was no third photo lineup.

In an attempt to establish that there was a third photo lineup containing Mr. Mosley's photograph, the State called the victim's mother, Mrs. McGriff. Mrs. McGriff's testimony concerning this "mysterious" photo lineup was confusing at best:

Q. At anytime did the police come to you in those days after your daughter was killed and show you photographs?

A. Yes.

Q. Do you remember how many times or how many photographs they may have showed you?

A. Oh, about two or three.

Q. Did they show you a large group of photographs or was it one at a time?

A. Yes, they showed me one at a time and then they showed me large size.

Q. Okay. And on any of those occasions, did the police officers show you a picture of Eddy Lee Mosley?

A. Yes.

Q. Was it in a group or single photo, do you remember?

A. It was in a group.

(PC-R. 113). On cross-examination, counsel attempted to clarify Mrs. McGriff's answer:

Q. Now, you indicated that they showed you two or three photos, or was that two or three they showed you?

A. They showed me about two or three photo -- Well, they asked me to look through the pictures.

Q. They gave you a couple of photos, gave them to you and asked you to look through them?

A. Uh-huh.

Q. And that was all the photos that the police ever showed you or did they show you more later, or do you remember?

A. No, I don't remember.

Q. Okay. Did they also show you -- I mean, if you don't remember just say you don't remember. I'm just trying to be sure. I understand what you're saying.

Do you remember, did they actually show you a line up at one point in time with about six pictures in it?

A. No, there wasn't no six pictures. It was like a photo book, do you know how you get a photo book?

Q. Yes.

A. I looked through the photo book and skimmed through to look in the photo book.

Q. So they showed you a photo book?

A. Yes.

Q. And it was a photo book with more than six pictures in it?

A. Yes.

Q. And when did they show you the photo book?

A. Oh, gee. I just don't remember, but I think right after - right after my baby's death, I think, I'm not for sure, right after. I'm not sure.

Q. You mean like the next day?

A. Yeah.

Q. And did they show you photo of Frank Lee Smith that day?

A. Did they show me?

Q. Yes.

A. No, I picked him out myself.

Q. In that book?

A. Yes.

Q. And that was the next day after your daughter's death?

A. Yes.

Q. Was Eddy Lee Mosley in that photo book?

A. Yes.

Q. Did the police specifically say "how about this guy?"

A. No.

Q. But you saw his photo in there?

A. Yes.

Q. Did you tell the police that that was not the person?

A. Yes.

Q. You just -- Did you -- As you went through the photo book, did you say "this isn't the person, this isn't the person?"

A. Yes.

Q. And then when you got to Frank Lee Smith you said "this is the person?"

A. Yes.

(PC-R. 118-121). Prior to the evidentiary hearing, neither she nor Detectives Scheff or Amabile ever mentioned Mrs. McGriff viewing photographs out of a photo book.

Moreover, their testimony has always been that Mrs. McGriff identified Mr. Smith from a photo lineup and not while perusing a photo book (R. 642, McGriff; R. 985, Scheff; R. 908 Amabile). At the evidentiary hearing, both Detectives Scheff and Amabile stated that Mrs. McGriff was shown a photograph of Mr. Mosley in a photo lineup and not a photo book (PC-R. 148, Scheff and 185-6, Amabile). Detective Amabile who sat through Mrs. McGriff's testimony at the evidentiary hearing admitted that her memory as to what transpired and when it transpired was different from his memory (PC-R. 198).

Although Mrs. McGriff, Detective Scheff, and Detective Amabile have different stories concerning how and when Mr. Mosley's photograph was shown to Mrs. McGriff, they all testified that she identified his photograph as Mr. Mosley and stated he was her cousin and not the man she saw that night. In fact, Detective Amabile testified that he remembered this specific photo lineup because Mrs. McGriff had stated that Mr. Mosley was her cousin. The problem with this testimony is that as with the testimony about the existence of a third photo lineup containing Mr. Mosley's photograph, their prior sworn testimony is in direct contradiction. At no time pre-trial or at trial did anyone identify Mr. Mosley as a relative of Mrs. McGriff -- and they were all asked whether any of her relatives were suspected of the murder. In answer to the direct question, the only relative the detectives ever identified pre-trial or at trial was Edwin McGriff, another cousin of Mrs. McGriff.

Detective Scheff, the lead investigator in this case, gave a very lengthy and detailed deposition covering in chronological order everything he did in this case. He never mentioned that Mr. Mosley was a serious suspect that they actively investigated. He did not mention that there was a third photo lineup containing Mr. Mosley's photograph. He specifically did not identify Mr. Mosley as a relative of Mrs. McGriff. After explaining that Mr. Freeman was eliminated as a suspect by Ms. Lowe, Mr. Davis, and Mrs. McGriff, the following colloquy occurred:

Q. Did you have, at this point in time, anybody in mind?

A. You mean, as a suspect?

Q. Yes.

A. Oh, no.

Q. How about any relative of the deceased, uncles, cousins?

A. We had booked an individual by the name of Edwin McGriff, who is a cousin to Dorothy. As I had indicated earlier, we checked with - on the first night, for similar crimes. And, at that point in time, we discovered that Edwin McGriff had been accused, I think, in 1982, of a sexual battery of a minor black female chid, and subsequently, we sat Dorothy McGriff down and explored the possibility with her that it might have been her cousin. She was quite emphatic that the person that she had seen was not her cousin and that she was being truthful. It was my feeling that she was.

(Scheff deposition p. 44). Again at Mr. Smith's trial, Detective Scheff was asked about relatives and again he indicated that a cousin, Edwin McGriff, was the only family member who was a suspect (R. 1022-23). Detective Scheff testified that this cousin, Edwin McGriff, was never displayed in a photo lineup (R. 1024). Detective Scheff did admit at trial that Mr. Mosley was a suspect, but never said he was eliminated by all three witnesses through a photo lineup or that he was a cousin of Mrs. McGriff. In fact, Detective Scheff testified that he did not show a photo lineup containing Mr. Mosley's picture to any of the witnesses:

Q Was Eddie Lee Mosley ever a suspect in this case?

A Eddie Lee Mosley was a suspect in this case along with Edwin McGriff. Initially when we first began investigating the case, really had no specific direction to go in.

Q How about Jessie Smith?

A Jessie Smith is Eddie Lee Mosley under an alias name.

Q Lee Greely, G-r-e-e-l-y Smith?

A I don't know.

Q That's all I have.

A Spell it again?

Q G-r-e-e-l-y. Doesn't ring a bell?

A No.

Q The man called Gator Mouth ever a suspect in this case?

A Yes.

Q The man that went by the name of Gator Mouth?

A Right.

Q Was a guy by the name of Big John ever a suspect in this case?

A Yes. I wouldn't say they were suspects in the case. I would say they were people who were brought to our attention for one reason or another.

Q How about Edward Simmons, did you ever check with John Boucada of your department? He supposedly looks like Mr. Smith.

MR. DIMITROULEAS: I will object to counsel testifying and I'm objecting to the form of the question.

THE COURT: Objection sustained, may be rephrased.

Q (By Mr. Washor) Did you ever investigate Edward Smith?

A Edward Simmons?

Q Simmons.

A No, sir.

Q Never had any contact with Detective Boucada regarding him?

A No, sir.

Q Were any of these people ever shown to any of the witnesses in either a photo or live lineup, people whose names I just read off other than Freeman?

A Other than Freeman, no.

(R. 1024 - 1026).

At his pre-trial deposition, defense counsel specifically asked Detective Amabile if any of Mrs. McGriff's cousins were ever suspected of the murder. Detective Amabile responded that Edwin McGriff was the only cousin ever considered a suspect (Amabile Deposition at p. 44). Detective Amabile was asked this again at Mr. Smith's trial and again responded that no family members, other than Edwin McGriff, were suspects (R. 946). The same Detective Amabile testified in 1991 that he didn't remember much about the photo lineups except for the instance when Mrs. McGriff identified Mr. Mosley as her cousin:

Q. Do you recall what photo lineups were shown the witnesses? And let me clarify when I use the word "witnesses," I am referring to Dorothy McGriff, Chiquita Lowe and Gerald Davis?

A. Unfortunately I would have to answer yes because of hearing the prior [evidentiary hearing] testimony [of Mr. McGriff and Detective Scheff]. What I recall, I recalled it more than one photo lineup being shown. I know from testimony today it was also mostly the reason I stated to Mr. Zacks, that I recall Eddy Lee Mosley is - that's how I found out that he was related to Dorothy McGriff.

(PC-R. 185-86). Of course, this testimony is in direct contradiction with his pre-trial and trial testimony that the only relative of Mrs. McGriff who was a suspect in the case was Edwin McGriff, a cousin. Moreover, Detective Amabile, like Detective Scheff, testified at trial that none of the suspects, with the exception of Freeman, were displayed in a photo lineup:

Q There were a slew of other suspects in this case, weren't there, besides Mr. Freeman?

A A slew or --

Q More than one?

A Yes.

Q Was there a Carspelia (phonetic) Williams who was a suspect?

A His name was given to us.

Q Eddie Lee Mosley?

A Yes.

Q Jessie Smith?

A I don't recall that name.

Q Greeley (phonetic) Smith?

A Again, I don't recall that name.

Q Edward Calvin McGriff?

A Yes.

Q Was he related to the family at all?

A I believe so, yes.

Q A person by the name of Gator Mouth?

A Yes.

Q A person by the name of Big John who Detective Frost said in his report somebody identified a composite?

A Yes.

Q Were any of these leads followed up on?

A Yes.

Q Were they all followed up on?

A Yes, to the best of my knowledge with the exception of the two names I don't recall hearing.

Q What became of Big John?

A That I believe Detective Scheff and myself checked out and he did not fit the physical description at all.

Q Is that reflected in anywhere in your notes or reports or anything of that nature?

A No, that would be Detective Scheff's.

Q He should have it somewhere?

A He should.

Q Were any of these other people other than Mr. Freeman in the photographic display or in the live lineup shown to any other witnesses?

A No.

Q Did you investigate any of the family members backgrounds to see whether they were ever involved in this kind of thing before?

A I believe Edward McGriff.

Q Anybody else?

A No.

(R. 945-6).

In 1991 when Detective Scheff was asked if he had any written documentation in the homicide file reflecting the Mosley lineup he testified:

A. I don't think so. I might. I would have to look through the file.

Q. With the file that you brought, is there any indication in there of showing a photo of Eddy Lee Mosley to any of the witnesses?

A. The file is -- I just brought this so I could have some hope of remembering this stuff.

Q. In what you brought that you thought would help you, and with your memory, is there anything to indicate you showed a photo lineup containing Eddy Mosley?

A. No.

THE COURT: Showed who?

THE WITNESS: Eddy Lee Mosley.

MR. MCCLAIN: A photo lineup containing Eddy Lee Mosley.

THE COURT: To whom?


Q. To --

A. Anybody.

Q. Anybody. To these three witnesses that we've been talking about?

A. No.

(PC-R. 159-60)(emphasis added). Moreover, Detective Scheff had no explanation for this glaring contradiction between his pre-trial and trial testimony and his testimony at the evidentiary hearing:

Q. I'm going to hand you pages from your trial testimony. I have three pages to show you and starting with was Eddy Lee Mosely (sic) a suspect. If you can just read from there on until the middle of the third page [R. 1024-26].

A. I am sorry read to where?

Q. Let me show you.

A. Wait a minute, which is the first page?

Q. Eddy Mosely's on the first page.

A. Was Eddy Lee Mosely ever a suspect - Do you want me to read it out loud?

Q. You can read it to yourself.

A. Okay.

Q. In those three pages, does that help refresh your recollection as to your trial testimony?

A. Yes.

Q. You were asked out a series of suspects by the prosecutor --

A. Yes.

Q. -- if Eddy Lee Mosely was one of those suspects?

A. Yes.

Q. In fact, he read you a list of names and asked you for a response?

A. That's correct.

Q. At the end he asked you were any of those names he read to you were shown to the witnesses?

A. Yes.

Q. And you said other than Freeman --

A. Yes, I'm assuming that's accurate. I have no reason to not doubt it's accurate.

Q. Is that consistent with your testimony here today?

A. No it's not.

MR. MCCLAIN: I have nothing further, Your Honor.

THE COURT: Re-direct? Could you repeat that question and answer again that you just asked?

MR. MCCLAIN: Was that consistent with your testimony here today?

THE COURT: No, the last question?

MR. MCCLAIN: The question was, were any of these people ever shown to any of the witnesses in either a photo or live line-up (sic), people whose names I just read off other than Freeman. Answer, other than Freeman, no.

THE COURT: Go ahead.

MR. ZACKS: Nothing further, Judge.

(PC-R. 179-181).

At the conclusion of the hearing, it was decided that the State and Mr. Smith would simultaneously do post-hearing memoranda (PC-R. 205). Post-hearing memoranda were done (PC-R. 231-64).

On April 29, 1991, Assistant State Attorney, Paul Zacks, left a message for Mr. McClain, Mr. Smith's counsel to call Mr. Zacks. Subsequently, Mr. McClain returned the call. At that time, Mr. Zacks said that Judge Tyson had telephoned Mr. Zacks and discussed Mr. Smith's case. As a result of that discussion, Mr. Zacks was assigned to draft an order denying Mr. Smith relief. Shortly thereafter, Mr. Smith's counsel received via facsimile a draft order and an accompanying cover letter detailing the timetable Judge Tyson and Mr. Zacks had worked out.

After learning of the ex parte communication between Judge Tyson and the State, counsel for Mr. Smith filed a Motion to Disqualify Judge, requesting that Judge Tyson recuse himself from Mr. Smith's case because of the ex parte communication (PC-R. 265-66). Counsel for Mr. Smith also filed Objections to Draft Order, arguing:

On May 7, 1991, defense counsel received the State's draft of a proposed order denying 3.850 relief in the above entitled matter. The proposed order and its cover letter accompany this pleading. Defense counsel's understanding is that the Order was drafted by the State after Judge Tyson called Assistant State Attorney Paul Zacks and discussed the matter. Neither Mr. Smith nor undersigned counsel were privy to that discussion. Undersigned counsel had requested that any post-hearing discussions about the case not be ex parte and that such discussions be conducted with all parties present. Counsel further suggested that the discussions could be telephonic but that a court reporter should be on the line in order to put the discussions on the record.

(PC-R. 279). Judge Tyson did not rule on the Objections to Draft Order. On June 6, 1991, Judge Tyson denied the Motion to Disqualify (PC-R. 283), and, the next day, June 7, 1991, signed verbatim the State's order (PC-R. 284-87). Mr. Smith thereupon filed a notice of appeal.

On May 28, 1992, the Florida Supreme Court issued its opinion in Rose v. State, 601 So.2d 1181 (Fla. 1992), wherein the court reversed an order denying post-conviction relief because the Assistant State Attorney, Paul Zacks, had engaged in ex parte contact with the presiding judge in preparing a draft order denying all relief. When Mr. Smith filed his brief in the Florida Supreme Court, he relied upon the opinion in Rose v. State. The State refused to concede error, but instead filed a Motion to Get the Facts, in which it asked for a remand so that evidence could be heard regarding the ex parte contact. The Florida Supreme Court granted the motion and remanded.

D. Getting the Facts

On remand, Mr. Smith’s counsel sought to depose Judge Tyson for discovery purposes. The State sought to quash the subpeona. Judge Speiser denied the State’s request. The State sought and obtained review of Judge Speiser’s decision by the Florida Supreme Court. The case was consolidated with another capital case (State v. Lewis) from Broward County in which CCR case had successfully sought to depose the trial judge. Ultimately, the Florida Supreme Court ruled that post-conviction discovery was permitted under certain circumstances and remanded to permit Judge Speiser to determine whether to permit the deposition. State v. Lewis, 656 So.2d 1248 (Fla. 1994).

Judge Speiser permitted the deposition. Thereafter in August of 1996, an evidentiary hearing was held to get the facts. Martin McClain, Tom Dunn, Paul Zacks, and Judge Tyson all testified. Mr. Zacks and Judge Tyson acknowledged ex parte contact had occurred. Mr. Zacks claimed that Mr. Dunn had consented in advance to the ex parte procedure, and Judge Tyson claimed that Mr. McClain had consented to the ex parte procedure. Mr. Dunn, who had been involved in Desert Storm at the time of the ex parte contact, testified that he did not consentin December of 1989 and that he was not in the country in March of 1991. Mr. McClain testified that he did not consent to the ex parte procedure and would not have.

Judge Speiser determined that it was not for him to resolve the factual issues. He simply ordered the transcripts from the proceeding sent to the Florida Supreme Court. After briefing, the Florida Supreme Court determined oral argument was not necessary and ruled that the case was controlled by Rose as Mr. Smith had asserted in 1992. Judge Tyson’s order denying relief was vacated and the matter was remanded for a new evidentiary hearing on the Chiquita Lowe affidavit before Judge Speiser. Smith v. State, 708 So.2d 253 (Fla. 1998).

E. The 1998 Evidentiary Hearing

Counsel for Mr. Smith also presented the following witnesses: Chiquita Lowe; Jeffrey Walsh; Andrew Washor; and Judge William Dimitrouleas. Ms. Lowe again testified that in 1989 she was shown a picture of a man whom she recognized as the man she saw on the street the night of Shandra Whitehead's murder (1998 trans 79-82). Ms. Lowe identified the picture she was shown in 1989; it is a booking photo of Eddie Lee Mosley (Defense Exhibit 1).

Ms. Lowe explained why she identified Mr. Smith at his trial as the man she saw near the victim's house on the night of the crime. Ms. Lowe was a teenager at the time of Mr. Smith's trial who knew the victim's family and wanted to assist the police in solving the crime. She explained:

I was under a lot of pressure, a whole lot of pressure. I was scared, nervous, young. I just was under a lot of pressure. It hurted me because I know a little girl got killed, I know the family, and it just hurted me seriously, just hurted me. It hurts talking about it.

(1998 trans 66). Ms. Lowe explained: "I knew a bad thing happened and I feel that I had to do something about it in my heart." (1998 trans 145). Ms. Lowe also explained that she felt pressured by the community:

Q You said the people in the neighborhood --

A Neighborhood. They just afraid to have that person on the street again so they can go over again, something else can happen to somebody else little girl. They wanted him off the street.

(1998 trans 72-73).

In addition to pressure from the community, Ms. Lowe testified that she was pressured by Detectives Scheff and Amabile to cooperate with their investigation. Ms. Lowe testified that the police attempted to influence her when she looked at the first photo line-up. Ms. Lowe testified that the police "kept pointing at [James Freeman's photo] and talking about it" and "kept on telling me is Freeman the one who did it, because Freeman known of doing that to little girls." (1998 trans 57). The police used the same suggestive tactics when they showed her the line-up including Mr. Smith's picture:

They showed me the second [line-up] and I looked at them and they say -- I'm not certain which number he said but I know it was a number with Frank Lee face on it. I'm just saying, for instance, say number two.

They said this is the one that Shandra mother said and Gerald said this is the one, Frank Lee. This is who did it. This is the one that we have to get off the street because he hurt little girls.

And he just kept on pointing to the picture and telling me that this is the one, we have to get him off the street.

THE COURT: Who's saying that?

THE WITNESS: The two police officers.

THE COURT: Scheff and somebody else?


THE COURT: Did you know him beforehand, Frank Lee Smith?

THE WITNESS: I never laid eyes on him.

. . .

THE COURT: They said to you that he was the one that did this homicide?

THE WITNESS: They said he the one that did it.

(1998 trans 58-59). Ms. Lowe testified that the police told her that Ms. McGriff and Mr. Davis had already identified Mr. Smith as the man they saw on the night of the murder (1998 trans 75). Ms. Lowe believed what the police told her about the other witnesses (1998 trans 76).

Ms. Lowe explained on cross-examination that she would not have chosen Mr. Smith from the photo line-up if not for police coercion:

Q Okay. Do you recall picking out number two?

A They was pointing number two out to me.

Q They were pointing number two out to you? Have you ever testified in any court of law that Detectives Scheff and Amabile and/or Amabile told you to pick out number two?

A They kept on pointing at that one saying this is the one.

Q At the time you made the selection?

A What selection?

Q At the time that you did this photo lineup, originally did this photo lineup?

A They brought these pictures to me and they kept pointing at number two telling me that this is the one, this is the one.

Q Okay.

THE COURT: So in other words, you're saying the only reason you pointed out number two is because they kept saying this is the one, this is the one?


THE COURT: You're saying but for them saying that to you, you would not have picked out number two?

THE WITNESS: No, I wouldn't have picked number two out.

THE COURT: You wouldn't have?

THE WITNESS: I wouldn't have picked none of those that he just showed me. I wouldn't have picked none of them.

(1998 trans 106-08). Ms. Lowe admitted that she swore under oath that the police had not pressured her; she explained why she made that statement: "I had to say it." (1998 trans 116).

The same pressure was exerted upon Ms. Lowe at the time of Mr. Smith's trial:

Both of the police officers told me that go in there and tell the truth. We captured the person that did this to this little girl here and he needs to be off the street.

Mr. D told me that he would not harm me, that everybody was going to be around in the courtroom and he cannot do anything to you. Just go in there and just tell the truth.

And they kept on saying this person here is bad, he need to be off the street, and just go in there and just tell the truth. They just kept on telling me that over and over and over and over again.

(1998 trans 69). Ms. Lowe testified that she was afraid to go into the courtroom because "[t]hey said they captured the person that killed that little girl, and I was afraid to go in the courtroom on account of death . . . . and looking at the person in there in their face knowing that they did an awful crime like that." (1998 trans 152).

However, when Ms. Lowe saw Mr. Smith in court at his trial, she knew that he was not the man she saw on the night of the murder. Ms. Lowe explained that when she saw Mr. Smith in court at his trial, it was the first time she had seen him live (1998 trans 71). She realized that he was too thin and did not have the droopy eye that both she and Mr. Davis saw on the night of the murder (1998 trans 70). Ms. Lowe explained why she identified Mr. Smith despite her realization that he was the wrong man:

Q Okay. Now, earlier you said -- Well, why did you point to [Mr. Smith] and say he was the man you saw when you were in court?

A I was under a lot of pressure, other people in the neighborhood, what they were saying. `Um, I was very hurt because I know how the mother feel, how the mama had been under a lot of stress and she was hurt.

(1998 trans 72). Ms. Lowe's testimony on recross was consistent about the pressure that caused her to identify Mr. Smith at his trial:

Q You had no hesitation in pointing him out and saying that's the man I saw on April 14th, 1985?

A The police told me that Miss Dorothy and Gerald say that is the man and I went ahead and said also because they said the man needed to be off the street and he hurt that little girl and that was him.

(1998 trans 161).

Ms. Lowe testified that the first time she saw a picture of Eddie Lee Mosley was 1989 when Jeff Walsh visited her. She also testified consistently with her trial testimony that she was shown two photo line-ups: one including a picture of James Freeman and the other including a picture of Frank Lee Smith.

In response to Ms. Lowe's testimony identifying Eddie Lee Mosley as the man she saw on the night of the crime, the State presented Detective Richard Scheff and Dorothy McGriff. Detective Scheff testified that he and Detective Amabile considered Eddie Lee Mosley a suspect in this case "because he was notorious for committing crimes of violence in the area" and that "simply in an abundance of caution I considered him a suspect." (1998 trans 349). Detective Scheff testified that he showed a photo line-up of Eddie Lee Mosley to Ms. Lowe, Ms. McGriff, and Mr. Davis (1998 trans 349-50). He identified the Mosley line-up and testified that the picture accurately depicted Mosley as he appeared at the time of the Whitehead murder (1998 trans 370). Detective Scheff explained that he encountered Mosley in "the latter part of February of 1985" and again during "the latter part of April of 1985 through May and June." (1998 trans 370). According to Detective Scheff, at that time Mosley's hair was close-cropped and his beard was neatly trimmed (1998 trans 373).

The State's other witness at the evidentiary hearing was Dorothy McGriff, the victim's mother. Ms. McGriff testified that the police showed her a picture of Eddie Lee Mosley in a line-up of six pictures and that she told them he was her cousin (1998 trans 218). Ms. McGriff testified that the picture of Mosley was in the same line-up that included Mr. Smith's picture (1998 trans 219-20). On cross-examination, Ms. McGriff admitted that at the 1991 evidentiary hearing she testified that she saw Mosley's picture not in a line-up but in a picture book:

Q Do you remember did they actually show you a lineup at one point in time with about six pictures in it? And your answer: No, there wasn't no six pictures. It was like a photo book. Do you know -- do you know how to get a photo book? And then the question, yes. I looked through the book and the book -- skimmed through to look in the picture book.

(1998 trans 234). On redirect, Ms. McGriff testified that she knows the difference between a photo line-up and a photo book (1998 trans 236).

Detective Scheff also testified about Eddie Lee Mosley's modus operandi and explained why he believed Mosley's modus operandi did not match the facts of this case:

A In all the cases that we've been able to link to Eddie Lee Mosley - and by link I mean more than simply just suggest that it might be Mr. Mosley - the victims are adult female prostitutes primarily or picked up in a bar. The sexual activity occurs outside in an open field and the manner of death is manual strangulation without a ligature being used. Also there is no trauma, blunt trauma.

Q And in this case you have a --

A This case I have a child victim, I have a ligature, I have blunt trauma, and I have sexual activity occurring indoors.

(1998 trans 397). Detective Scheff explained why he used a Mosley line-up in this case despite the alleged differences in his modus operandi:

I thought Eddie Lee Mosley was an individual that I was looking at as a suspect in two other cases that I subsequently arrested him on. He was notorious in the area and a decision was made simply to put his picture in a photo lineup and see how the witnesses reacted.

This was prior to us getting the composite. I don't think I would have even done that had we gotten the composite first because I would have looked at the composite and said that that's not Eddie Lee Mosley or at least the Eddie Lee Mosley that I knew.

(1998 trans 460).

Detective Scheff was unable to explain the inconsistency between his hearing testimony regarding the Mosley line-up and all the other evidence in the case. In regard to his trial testimony that he did not show a line-up including Mosley's picture to the witnesses, Scheff explained that he made a mistake (1998 trans 375). Detective Scheff offered the following explanation for his failure to mention investigating Mosley or showing the witnesses a Mosley line-up at his deposition:

Okay. I did not consider at the time I was giving my deposition to Tom Gallagher the issue of Eddie Lee Mosley to be one of any importance at all. I based that on the fact that there was no link between Eddie Lee Mosley and the murder of Shandra Whitehead.

Tenuous or not, there was no witness, there was nothing to suggest that Eddie Lee Mosley was a suspect in this case other than the fact that he was a notorious person in this area.

. . .

And so I considered it a very trivial matter. Obviously, it's taken on added importance over the years, but at that point in time it really didn't seem to be relevant.

(1998 trans 437-58). This answer would suffice only if Scheff had been asked a specific question about "relevant suspects." However, his opinion that Mosley was irrelevant to the case does not satisfactorily explain why he failed to mention showing the witnesses a Mosley line-up when he was repeatedly asked whether anything else had been done on the case. His explanation also fails to establish any difference between Mosley and the other suspects who were allegedly eliminated but were mentioned during his deposition.

Detective Scheff was also questioned about his handwritten notes which include an account of the investigation detailing the activity done each half hour (Defense Exhibit 7). The notes do not mention showing a line-up including Eddie Lee Mosley to Chiquita Lowe, Dorothy McGriff, and Gerald Davis (1998 trans 444). Detective Scheff's notes also do not refer to his showing a picture book of 150 pictures to Ms. McGriff as he testified at the 1991 hearing (1998 trans 449). The notes make no mention of Eddie Lee Mosley at all although, as with his deposition, they do mention other suspects who were investigated such as James Freeman, Neely Williams, and Edwin McGriff (1998 trans 444). The notes specifically indicate that Scheff checked the criminal histories of Edwin McGriff and James Freeman for similar crimes (Id.). There is no similar notation that Scheff checked Mosley's criminal background although he testified that he investigated Mosley's criminal history and was familiar with his modus operandi (1998 trans 445).

Detective Scheff could not adequately explain his failure to mention the Eddie Lee Mosley line-up in his handwritten notes, his final report, his deposition and his trial testimony. He claimed in 1998 that Mosley was not a suspect (1998 trans 468), while at Mr. Smith's trial he testified that Mosley was a suspect. He offered the following explanation:

I differentiated Eddie Lee Mosley to any of the other names that you have mentioned because the other names that you have mentioned, there was some link; that was somebody said, you know, the family came forward and they were suspicious. There was some link, tenuous though it might be, between that person, that potential suspect and the case.

In Eddie Lee Mosley's situation there was nothing to suggest that he was the suspect other than pure speculation on the part of the sheriff's office. And so there was a distinct difference in the way I would characterize him in this case, at least in my mind there was.

(1998 trans 455). This differentiation in Detective Scheff's mind is insufficient to explain the inconsistency between his hearing testimony that he showed a Mosley line-up to the three witnesses and all the other evidence in the case indicating that a Mosley line-up was never used.

Counsel for Mr. Smith presented additional testimony contrary to Detective Scheff's hearing testimony regarding the Mosley line-up. Mr. Smith's trial attorney, Andrew Washor, testified that during discovery he received two photographic line-ups -- one of Mr. Smith and one of James Freeman (1998 trans 251). Mr. Washor testified that he received nothing about Eddie Lee Mosley during discovery (1998 trans 252, 254). Mr. Washor was also called as a rebuttal witness after the Mosley line-up was introduced during Detective Scheff's testimony. After examining the Mosley line-up, Mr. Washor testified that it did not look familiar and repeated his testimony that he did not receive a Mosley line-up at the time of Mr. Smith's trial (1998 trans 527-28).

William Dimitrouleas, the prosecutor on Mr. Smith's case who is now a federal district court judge, also testified for Mr. Smith in rebuttal regarding the Mosley line-up. Judge Dimitrouleas testified that the trial judge had granted a defense motion requesting all photographs and photographic line-ups used during the investigation. Judge Dimitrouleas testified that he would have turned over all photographic line-ups used during the investigation even if Mr. Washor had not filed a motion specifically requesting them (1998 trans 509). Judge Dimitrouleas examined the Mosley line-up that was produced by Detective Scheff and testified that he had no independent recollection of ever seeing the line-up before (1998 trans 514). He explained:

[I]t's an unusual arrangement for a photographic line-up. I'm not saying I never saw it but I would think that a line-up where it wasn't three across and three across, it would be something that I might remember.

Q But you don't recall ever seeing this?

A Never recall seeing that.

Q And in your experience the formation of the lineup is different than your normal line-up?

A Yeah. Normally they'll have three pictures across and three pictures on the bottom or some other situation.

Q Two parallel lines?

A Usually that's what they have. That's an unusual configuration that I might remember if I had seen that before.

(1998 trans 514). Judge Dimitrouleas testified that he would have corrected Detective Scheff's trial testimony that there was no Mosley line-up shown to the witnesses if he knew that Scheff was mistaken or lying (1998 trans 506-07).

Mr. Washor also testified that the information regarding Eddie Lee Mosley that was unavailable to him at the time of trial -- Ms. Lowe's identification, police reports naming Mr. Mosley as a suspect, the Mosley photograph that Ms. Lowe was shown -- would have enabled him to support his theory that Mr. Smith was innocent. Mr. Washor was shown a composite exhibit of police and autopsy reports from sexual assault and murder cases in which Mr. Mosley was a suspect. He testified that he would have used the reports to compile a reverse William's Rule motion and to question Detectives Scheff and Amabile about their elimination of Mr. Mosley as a suspect (1998 trans 272). In regard to the reverse Williams' Rule motion, Mr. Washor testified that the reports revealed several details that were similar to the facts of this case. First, Mr. Mosley approaches people on the street, says that he is from New York and asks the person about doing drugs with him (1998 273). This pattern was followed by the person who approached Gerald Davis on the night of the murder. Several of the reports identifying Mr. Mosley as the perpetrator mention a "droopy eye." (1998 trans 274). Chiquita Lowe and Gerald Davis both included this unique characteristic in their descriptions of the man they saw. Mr. Washor also testified about similarities between the crimes Mosley was suspected of and the Whitehead murder: all involved African-American female victims who were raped or raped and murdered. Mr. Washor also testified that the reports indicated that Mr. Mosley used different methods to kill his victims, in contrast to Detective Scheff's testimony that Mosley was eliminated as a suspect because he only kills by manual strangulation. The reports show that Mosley used different weapons (including a knife, a cane, and a gun) and that on several occasions he strangled his victims with a ligature. In addition to the similarity of the crimes, the rapes and murders of which Mosley was suspected were all committed in the same geographical location as the Whitehead murder (1998 trans 274). Regardless of his success with a reverse Williams' Rule motion, Mr. Washor testified that he would have used the reports to question the detectives about the elimination of Mr. Mosley as a suspect; if these reports had been available to Mr. Washor, the jury would have known that Mr. Mosley was a suspect in numerous rapes and murders in the same geographical area as Shandra Whitehead's rape and murder.



MO: Stabbed boy in argument; shot holdup victim; raped/kllled eight-year-old girl.

DISPOSITION: 11 months juvenile detention, 1960-61; life term, 1966; condemned, 1985.



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