______________________________________________________________

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT
______________________________________________________________
MICHAEL LAMAR WOODS,
Petitioner,
v.
STATE OF FLORIDA,
Respondent.
_____________________________________________________________
A Writ of Certiorari Petition Filed Pursuant Rule 9.100 of the Florida Rules of
Appellate Procedure
Case No.: 5D16-______
Lower Tribunal No: L.T. No. 42-2011-CF-002142-CF-AXXX
Fifth Judicial Circuit, Marion County, Florida
__________________________________________________________________
PETITION FOR WRIT OF CERTIORARI
_____________________________________________________________
Terence M. Lenamon
Fla. Bar No. 970476
Daniel J. Schwarz
Fla. Bar No. 84665
TERENCE M. LENAMON, P.A.
245 SE 1st Street, Suite 404
Miami, FL 33131
Tel: (305) 373-9911
Fax: (305) 503-6973
Email: terry@lenamonlaw.com
Counsel for Petitioner

Tania Alavi
Alavi, Bird, & Pozzuto, P.A.
108 North Magnolia Avenue
Suite 600
Ocala, Florida 34475
352/732-9191
Florida Bar #0937680
Primary email: talavi@abplegal.com
Second email: crepko@abplegal.com
Counsel for Petitioner

TABLE OF CONTENTS
TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.ii
TABLE OF CITATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.iii
BASIS FOR INVOKING JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2
STATEMENT OF THE CASE AND FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.2
NATURE OF RELIEF SOUGHT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
5
ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.6
SIXTH AMENDMENT PRECLUDES COMPELLED
DISCLOSURE OF TEST FINDINGS AND REPORTS
FROM NON-TESTIFYING EXPERT WITNESS . . . . . . . . . . . . . . . . . . . .
6
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
16
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.17
CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.18

ii

TABLE OF CITATIONS
CASES
Allstate Ins. Co. v. Langston, 655 So.2d 91 (Fla. 1995) . . . . . . . . . . . . . . . . . . . . . .
2
Chavez v. State, 12 So.3d 199 (Fla. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.7
Dugas v. Coplan, 428 F.3d 317 (1st Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . .13,
14
Duncan v. Ornoski, 528 F.3d 1222 (9th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . .14,
15
Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011). . . . .
.10
Hinton v. Alabama, U.S. , 134 S.Ct. 1081,
188 L.Ed.2d 1 (2014) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11,
12
Ibar v. State, No. SC12-522, Ibar v. Jones, No. SC12-2619
(Fla. February 4, 2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.13
Kidder v. State, 117 So.3d 1166 (Fla. 2d DCA 2013) . . . . . . . . . . . . . . . . . . . 7, 8,
13
iii

Kimmelman v. Morrison, 477 U.S. 365, 106 S.Ct. 2574,

91 L.Ed.2d 305 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.8
Lafler v. Cooper, U.S. , 132 S.Ct. 1376 182 L.Ed.2d 398 (2012) . . . . . . . .
6
Miller v. Anderson, 255 F.3d 455 (7th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . .
14
Richey v. Bradshaw, 498 F.3d 344 (6th Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . .
.10
Rompilla v. Beard, 545 U.S. 374, 125 S.Ct. 2456,
162 L.Ed.2d 360 (2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9,
10
Showers v. Beard, 635 F.3d 625 (3rd Cir. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . .
.14
State v. Fitzpatrick, 118 So.3d 737 (Fla. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . .
13
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9,
16
Thomas v. Clements, 789 F.3d 760 (7th Cir. 2015) . . . . . . . . . . . . . . . . . . . . . . . .
.14
United States v. Cronic, 466 U.S. 648 104 S.Ct. 2039,
80 L.Ed.2d 657 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.6
Wiggins v. Smith, 539 U.S. 510, 123 S.Ct. 2527,
156 L.Ed.2d 471 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.9
Williams v. Thaler, 684 F.3d 597 (5th Cir. 2012) . . . . . . . . . . . . . . . . . . . . . . . . . .
14
iv

RULES AND STATUTES

Florida Rule of Appellate Procedure 9.030 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Florida Rule of Appellate Procedure 9.100 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.1
Florida Rules of Criminal Procedure 3.220 . . . . . . . . . . . . . . . . . . . . . . . . .4, 5, 8,
16
Florida Statutes Section 775.087. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
2
Florida Statutes Section 782.04 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
.2

OTHER
American Bar Association Guidelines for the Appointment
and Performance of Defense Counsel in Death Penalty Cases
(Revised Edition, February 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 9

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

MICHAEL LAMAR WOODS,

Case No. 5D16-______

Petitioner,
L.T. No. 422011CF002142CFAXXX
v.
STATE OF FLORIDA,
Respondent.
_________________________/
PETITION FOR WRIT OF CERTIORARI
Pursuant to Florida Rule of Appellate Procedure 9.100, MICHAEL LAMAR
WOODS, by and through counsel, petitions this Court for a writ of certiorari
reversing the lower court order filed February 9, 2016, denying Woods motion for
protective order from disclosing to the State the prospective findings and materials
of defense experts (Appendix A). As explained below, the findings and materials
that the experts are expected to produce at the request of the defense attorneys are
protected from disclosure by the Sixth Amendment to the United States
Constitution and are not otherwise discoverable. The courts February 9, 2016,
order should be reversed.

I. Basis for Invoking Jurisdiction

This Court has jurisdiction to issue a writ of certiorari under article V,
section 4(b)(3) of the Florida Constitution, and Florida Rule of Appellate
Procedure 9.030(b)(3). An order denying a request for a protective order to prevent
the compelled disclosure of non-discoverable materials is precisely the type of
discovery order reviewable by certiorari because once a litigant is compelled to
produce the information, the cat is out of the bag and the irreparable harm is done.
Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla. 1995).

II. Statement of the Facts

Woods was indicted by a grand jury and is currently charged with two
counts of capital murder. The State is seeking the death penalty. Woods is accused
of committing premeditated murder of two victims by discharging a firearm and
causing the death of both persons in violation of Florida Statutes Section
782.04(1)(a)(1), 775.087(2)(a)(1), 775.087(2)(a)(2), and 775.087(2)(a)(3).
Woods was declared indigent and is currently represented by two courtappointed attorneys.
Woods filed an amended motion for protective order on September 14, 2015
(Appendix B). He filed a supplemental motion for protective order on November
2

25, 2015 (Appendix C). Woods has preliminarily retained an expert to consult with
counsel regarding the States ballistics evidence and he seeks to have the expert
test this evidence. The testing is expected to include examining the firearm for
functionality, trigger pull, firing pin, etc. Also expected to be tested is the
ammunition, specifically the caliber, manufacturer, lands and grooves, test fire
comparisons, etc. (Appendix D). The bullet fragments that were removed from the
victims were purportedly matched to a firearm found in a lake behind Woods
grandfathers house. Woods seeks to examine these bullet fragments and test them
in comparison with the firearm that found in the lake. The expert has not yet
actually tested the ballistics evidence. The expert is not presently anticipated to be
listed as testifying witness. Woods motions for protective order seek to preclude
the compelled disclosure of any findings from tests conducted by the non-testifying
expert, as well as reports prepared by the expert. Woods argued in the circuit court
that the experts test findings and materials are protected from disclosure by the
Sixth Amendment to the United States Constitution, the work product doctrine, the
attorney-client privilege, the Fifth Amendment, and due to the uniqueness of death
penalty cases. In addition to Woods motions, he submitted to the trial court
perpetuated testimony of Richard Greenberg and Steven Harper (Appendix E). The
State filed a response (Appendix F). Both Mr. Greenberg and Mr. Harper provided
3

deposition testimony regarding ethical implications of compelled disclosure of

expert witness disclosure. Mr. Greenbergs testimony dealt with counsels duties
under the Florida Bar Rules of Professional Conduct. Mr. Harpers testimony dealt
with counsels duties under the American Bar Association Guidelines for the
Appointment and Performance of Defense Counsel in Death Penalty Cases. The
circuit court held a hearing on Woods motions on December 2, 2015 (Appendix
G). The circuit court entered an order denying Woods motion on February 9,
2016. The court stated that the plain language of Fla. R. Crim. Proc. 3.220(d)(1)(B)
requires the defendant in a criminal case to disclose to the prosecution the results
of scientific tests and experiments. The court also stated that because the forensic
testing hadnt yet been done in Woods case, the court could not determine
whether any of the test results were subject to the work product privilege and that
the court would have to conduct an in camera review of the results to determine
whether such results were privileged under the work product doctrine. The court
also stated that because Woods elected to participate in discovery, his Sixth
Amendment rights would not be violated by compelled disclosure of the test
results. Woods motion was premature because the experts statements and reports
were not yet in existence. The court indicated that it would have to conduct an in
camera review of any specific evidence Woods sought to preclude from disclosure.
4

The court stated that forensic testing by experts does not implicate the Fifth
Amendment, and that the court would have to conduct an in camera review to
determine whether the test results contain any information protected by the
attorney-client privilege. The court finally noted that the Fla. R. Crim. Proc. 3.220
applies in death penalty cases, thus providing no relief to Woods.
Contrary to the circuit courts ruling, for reasons described herein, Woods
maintains that the Sixth Amendment demands that he have access to confidential
witnesses. If a defendant participates in discovery, he must provide the prosecution
with reports or statements of experts made in connection with the particular case,
including results of physical or mental examinations and of scientific tests,
experiments, or comparisons. Fla. R. Crim. Proc. 3.220 (d)(1)(B)(ii). Due to the
Sixth Amendment, the only reasonable reading of this section of the Florida Rules
of Criminal Procedure would require disclosure of these test findings and materials
only where such experts are listed as testifying witnesses or the test findings or
materials will be used as evidence or exhibits at trial.
III. The Nature of the Relief Sought
Woods seeks a writ of certiorari reversing the circuit courts February 9,
2016, order that denies his request for a protective order to prevent compelled
disclosure of non-discoverable materials.
5

IV. Argument
The trial court has departed from the essential requirements of law in
refusing to grant Woods motion for a protective order exempting him from
disclosing to the State the test findings and materials of non-testifying, confidential
experts. The test findings and materials that Woods seeks to obtain, which would
be produced by a non-testifying expert, are privileged test results and materials the
disclosure of which would violate Defendants Sixth Amendment rights. If Woods
is compelled to disclose the results and materials expected to be provided by his
non-testifying

expert,

his

trial

preparation

will

be

substantially

and

unconstitutionally hindered.

Sixth Amendment Precludes Compelled Disclosure

The Sixth Amendment to the United States Constitution guarantees effective
assistance of counsel at critical stages of a criminal proceeding. This includes both
trial and pre-trial stages. Lafler v. Cooper, U.S. , 132 S.Ct. 1376, 1385, 182
L.Ed.2d 398 (2012). The constitutional right to the effective assistance of counsel
entails the right of the accused to require the prosecution's case to survive the
crucible of meaningful adversarial testing. United States v. Cronic, 466 U.S. 648,
656-657, 104 S.Ct. 2039, 2045-2046, 80 L.Ed.2d 657 (1984). Without effective
6

assistance of counsel, there exists a serious risk that an accused will not receive a
fair trial. Chavez v. State, 12 So.3d 199, 211 (Fla. 2009).
The Second District Court of Appeals of Florida has rejected the claim that
compelling a defendant to provide the results of a scientific test performed by an
expert who is not expected to testify would hinder the defendant's trial preparation
and therefore his or her right to the effective assistance of counsel afforded by the
Sixth Amendment. Kidder v. State, 117 So.3d 1166, 1173 (Fla. 2d DCA 2013).
The court reasoned that compelling disclosure does not violate the right to
effective assistance because there is no general constitutional right to discovery in
a criminal case, and thus the Sixth Amendment right to effective assistance of
counsel is not infringed by requiring a defendant to turn over test results to the
prosecution when a defendant voluntarily elects to participate in discovery. By
electing to participate in the discovery process, the defendant is allotted the
opportunity to view the States evidence, and the State is afforded the same
opportunity re the defendants evidence. Id. at 1174.
[W]e recognize the decision of whether to engage in the discovery
process may present defense counsel with a Hobson's choice. To elect
to participate in discovery allows an accused . . . the ability to view
the State's evidence. In return, however, the State, as permitted by the
discovery rule, is entitled to the same. While such an exchange may
well promote a fair trial, for defense counsel charged with the duty to
effectively assist the client, it may be difficult to reconcile the duty to
7

defend with the duty to disclose. . . . We can envision circumstances

where counsel may not desire to engage in discovery under rule 3.220.
Ibid.
The dictates of Kidder will force defense counsel into an untenable position
where the obligation to defend a clients interests by conducting reasonable
investigations is directly in conflict with the obligation to disclose incriminating
materials that would potentially be generated in the course of such investigations.
As a result of Kidder, counsel is effectively forced to ask the question: To
investigate, or not to investigate? (Of course, counsel will generally have no idea
whether a particular investigation will bear exculpatory or inculpatory information
until after conducting the investigation, at which point disclosure, under Kidder,
becomes required.) The solution to this dilemma, per Kidder, apparently, is to not
engage in discovery in the first place. If the defendant opts not to participate in
discovery, he is no longer under the obligation to disclose the results of his own
investigations. See Fla. R. Crim. Proc. 3.220(a). Simply suggesting that a
defendant forego discovery is a highly dubious solution in most criminal cases. See
Kimmelman v. Morrison, 477 U.S. 365, 385, 106 S.Ct. 2574, 2588, 91 L.Ed.2d 305
(1986) (counsel was deficient where he neither investigated, nor made a
reasonable decision not to investigate, the State's case through discovery. Such a
complete lack of pretrial preparation puts at risk both the defendant's right to an
8

ample opportunity to meet the case of the prosecution and the reliability of the
adversarial testing process.) (internal citations and quotation omitted). And in the
context of capital prosecutions, this is no viable solution at all.
It is indisputable that competent assistance of counsel includes a duty of
such counsel to conduct reasonable investigations or to make a reasonable
decision that makes particular investigations unnecessary. Strickland v.
Washington, 466 U.S. 668, 690-691, 104 S.Ct. 2052, 2065-2066, 80 L.Ed.2d 674.
This duty is particularly serious in capital cases. Counsel in a capital case at every
stage have an obligation to conduct thorough and independent investigations
relating to the issues of both guilt and penalty. American Bar Association
Guidelines for the Appointment and Performance of Defense Counsel in Death
Penalty Cases, Guideline, 10.7 (Revised Edition, February 2003). This includes
securing information in the possession of the prosecution and law enforcement.
The defense investigations must be made in all circumstances regardless of the
defendants protestations otherwise or the presence of overwhelming evidence of
guilt. Ibid. (ABA standards have long been held to be guides to determining what
is reasonable. Wiggins v. Smith, 539 U.S. 510, 524, 123 S.Ct. 2527, 2537, 156
L.Ed.2d 471 (2003).) That counsel must obtain information that the State has and
that it will use against the defendant in a death penalty prosecution isnt simply a
9

matter of common sense; it is an obligation. Rompilla v. Beard, 545 U.S. 374, 387,
125 S.Ct. 2456, 162 L.Ed.2d 360 (2005). Counsel in a capital case is clearly under
an obligation to obtain from the prosecution access to all evidence the State has
and intends to use against the defendant, thus negating any legitimate possibility of
not engaging in discovery.
Once it is understood that defense counsel in capital prosecutions are
obligated to engage in discovery in order to obtain all evidence that the prosecution
possesses against the defendant, it becomes necessary to analyze what counsel
must actually do with this evidence. Criminal cases will arise where the only
reasonable and available defense strategy requires consultation with experts or
introduction of expert evidence, whether pretrial, at trial, or both. Harrington v.
Richter, 562 U.S. 86, 106, 131 S.Ct. 770, 788, 178 L.Ed.2d 624 (2011). The need
to consult with experts in specialized fields is inextricably intertwined with a
defense attorney's ability to investigate and prepare for trial. See Richey v.
Bradshaw, 498 F.3d 344, 362 (6th Cir. 2007) ([T]he mere hiring of an expert is
meaningless if counsel does not consult with that expert to make an informed
decision about whether a particular defense is viable.). This is especially true
concerning capital cases. As a result of the exceeding complicated nature of
modern scientific evidence, counsel is generally incapable of conducting serious
10

investigations into complex scientific matters (DNA testing, ballistics evidence,

etc.) without the assistance of experts. Counsel requires the assistance of experts to
ensure his ability to understand and critique the prosecutions scientific evidence
and witnesses (i.e., to actually participate as an adversary). The possibility that a
defense attorney can competently defend a capital case without the assistance of
experts is effectively non-existent. See ABA Guidelines, Guideline 4.1,
Commentary (The prosecution commits vast resources to its effort to prove the
defendant guilty of capital murder. The defense must both subject the
prosecutions evidence to searching scrutiny and build an affirmative case of its
own. Yet investigating a homicide is uniquely complex and often involves
evidence of many different types. Analyzing and interpreting such evidence is
impossible without consulting experts whether pathologists, serologists,
microanalysts, DNA analysts, ballistics specialists, translators, or others.).
Hinton v. Alabama represents a capital murder case where the only
reasonable and available defense strategy requires consultation with experts or
introduction of expert evidence. Hinton v. Alabama, U.S. , 134 S.Ct.
1081, 1088, 188 L.Ed.2d 1 (2014) (internal citation omitted). In Hinton, the core
of the prosecution's case was the state experts' conclusion that the six bullets had
been fired from the [defendants] revolver, and effectively rebutting that case
11

required a competent expert on the defense side. Ibid. The defendants attorney
mistakenly believed that the court could not have allotted him sufficient funds to
hire an effective expert on firearms and toolmark evidence. As a result, the only
firearms and toolmark expert the attorney was able to retain to rebut the
prosecutions case was one he himself knew to be inadequate. Id. at 1085.
Unsurprisingly, the expert proved seriously ineffective at trial. The Supreme Court
found that the trial attorney's failure to request additional funding in order to
replace an expert he knew to be inadequate because he mistakenly believed that he
had received all he could get under Alabama law constituted deficient
performance. Id. at 1089. Hinton is just one example of a case where the use of
qualified expert witnesses is utterly necessary for criminal defendants. The
Supreme Court also recognized the invaluable and indispensable role that experts
play in criminal cases when it stated:
Indeed, we have recognized the threat to fair criminal trials posed by
the potential for incompetent or fraudulent prosecution forensics
experts, noting that [s]erious deficiencies have been found in the
forensic evidence used in criminal trials.... One study of cases in
which exonerating evidence resulted in the overturning of criminal
convictions concluded that invalid forensic testimony contributed to
the convictions in 60% of the cases. MelendezDiaz v.
Massachusetts, 557 U.S. 305, 319, 129 S.Ct. 2527, 174 L.Ed.2d 314
(2009) (citing Garrett & Neufeld, Invalid Forensic Science Testimony
and Wrongful Convictions, 95 Va. L.Rev. 1, 14 (2009)). This threat is
minimized when the defense retains a competent expert to counter the
testimony of the prosecution's expert witnesses. . .
12

Hinton, 134 S.Ct at 1090.

The Florida Supreme Court has also clearly recognized the necessity for
counsel to engage with experts in capital cases. The Court has found that an
attorneys performance can be constitutionally deficient based on the failure to hire
experts to assist in conducting reasonable investigations. See State v. Fitzpatrick,
118 So.3d 737 (Fla. 2013) (granting new trial in death penalty case where trial
counsels performance was deficient when he failed to retain and consult with
forensic experts who could have challenged the States evidence)1. And the Florida
Supreme Court recently granted a new trial in a death penalty case where trial
counsels performance was constitutionally deficient because he failed to retain a
facial identification expert to challenge the States identification evidence. Ibar v.
State, No. SC12-522, Ibar v. Jones, No. SC12-2619 (Fla. February 4, 2016).

It should be noted that Fitzpatricks defense attorney explained that he did not
retain forensic experts in the case, in part, because of a policy on court-appointed
cases adopted by the judges in his circuit at the time of the trial that physical test
results were not confidential and he thus would have been required to disclose to
the State the results of testing. The Court explained that if this policy actually
existed and impeded counsels ability to defend his client, he could have
challenged the policy, petitioned the trial court for a confidential expert, or hired a
non-testifying expert to help him prepare for trial. State v. Fitzpatrick, 118 So.3d
at 755, n.13. The Court clearly and unambiguously recognizes here the legitimacy
and availability of confidential non-psychological and non-psychiatric experts. The
Courts notation directly undermines Kidders finding that scientific test results of
non-testifying experts are subject to disclosure.
13

Also, courts throughout the country have not hesitated to find counsel
deficient for failing to retain experts to assist in both capital and non-capital cases.
See Dugas v. Coplan, 428 F.3d 317, 329 (1st Cir. 2005) (counsels performance
was constitutionally deficient where he failed to consult an expert and thoroughly
investigate a not arson defense in arson prosecution); Showers v. Beard, 635
F.3d 625 (3rd Cir. 2011) (finding counsel's performance deficient when defense
failed to hire expert to determine if the taste of a toxic drug that caused death of
victim could be masked and therefore whether death was a result of suicide or
intentional homicide); Williams v. Thaler, 684 F.3d 597, 604 (5th Cir. 2012) cert.
denied, U.S. , 133 S.Ct. 866, 184 L.Ed.2d 679 (2013) (holding that defense
counsel's performance fell below an objective standard of reasonableness when
counsel failed to obtain any independent ballistics or forensics experts, and was
therefore unable to offer any meaningful challenge to the findings and conclusions
of the state's experts, many of which proved to be incorrect). Miller v. Anderson,
255 F.3d 455, 459 (7th Cir. 2001) (finding deficient performance when counsel
failed to hire an expert to rebut the prosecution's expert testimony about physical
evidence linking defendant to the crime scene), remand order modified by
stipulation, 268 F.3d 485 (7th Cir. 2001) (vacated at request of parties when
settlement was reached); Thomas v. Clements, 789 F.3d 760 (7th Cir. 2015)
14

(defense counsel was deficient in failing to consider and consult with a pathologist
who would have reviewed the autopsy report and possibly testified that victims
death was not intentional); Duncan v. Ornoski, 528 F.3d 1222, 1246 (9th Cir.
2008) (counsels performance was deficient where he failed to investigate and
consult serology expert to present evidence that the blood samples from the crime
scene that did not belong to the victim also did not belong to the defendant).
What the foregoing illustrates is that defense counsels obligation to provide
constitutionally effective representation in criminal cases will often (and in death
penalty cases always) demand consultation with specially-trained experts who
will assist in examining the prosecutions evidence. The Sixth Amendment thus
requires that defense counsel have the opportunity to retain and consult with such
experts, and for these experts to be afforded the opportunity to independently test
the prosecutions evidence. But when counsel is deprived the opportunity to
confidentially consult with and receive reports and test results from experts, he is
left in the unenviable and unjust position of being forced to decide between 1)
conducting reasonable investigations, with the assistance of specially-trained
experts, of the prosecutions evidence and risking the possibility of discovering
inculpatory evidence against the defendant and being forced to share this evidence
with the prosecution, or 2) foregoing certain investigations altogether. This creates
15

a chilling effect and counsel is left then with only bad options, and his ability to
make independent decisions is significantly infringed upon. This limitation
seriously undermines counsels ability to participate as an adversary. This is
precisely what is forbidden by the Sixth Amendment. See Strickland v.
Washington, 466 U.S. at 686, 104 S.Ct. at 2063, 80 L.Ed.2d 674 (the right to
effective assistance of counsel is violated when the government interferes with
counsels ability to make independent decisions about how to conduct the defense).

V. Conclusion
For the reasons described herein, the only reading of Fla. R. Crim. Proc.
3.220 (d)(1)(B)(ii) that is in conformity with the Sixth Amendment is such that the
rule requires disclosure of experts test findings and materials only where such
experts are listed as testifying witnesses or the test findings or materials will be
used as evidence or exhibits at trial.
The trial court departed from the essential requirements of law in refusing to
preclude Woods from being compelled to disclose to the State the anticipated test
findings and materials of his non-testifying ballistics expert. Further, Woods will
be irreparably harmed by the courts order because the cat will be out of the bag
after disclosure. This Court should reverse the circuit courts February 9, 2016,
16

order that allows the State access to the anticipated test findings and materials
described herein.

Respectfully submitted,

s/ Terence Lenamon
Terence M. Lenamon
Fla. Bar No. 970476
Daniel J. Schwarz
Fla. Bar No. 84665
TERENCE M. LENAMON, P.A.
245 SE 1st Street, Suite 404
Miami, FL 33131
Tel: (305) 373-9911
Fax: (305) 503-6973
Email: terry@lenamonlaw.com
/s/ Tania Z. Alavi
Tania Z. Alavi
108 North Magnolia Avenue
Suite 600
Ocala, Florida 34475
352/732-9191
Florida Bar #0937680
Primary email: talavi@abplegal.com
Secondary email: crepko@abplegal.com

CERTIFICATE OF SERVICE
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I certify that a true and correct copy of the foregoing has been served on
Assistant State Attorney Robin Arnold, via email at rarnold@sao5.org; The Office
of

the

Attorney

General,

Criminal

Appeals

Division,

via

email

at

crimappdab@myfloridalegal.com; and Circuit Court Judge Jonathan Ohlman, via

email at rwhiting@circuit5.org, on March 7, 2016.

s/ Terence M. Lenamon
Terence M. Lenamon

CERTIFICATE OF COMPLIANCE
I certify that that this Petition for Writ of Certiorari has been prepared in
Times New Roman 14-point font in compliance with Florida Rules of Appellate
Procedure 9.100(l).
s/ Terence M. Lenamon
Terence M. Lenamon

18