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).