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.