During Deliberation???

Appellate Counsel was ineffective on direct appeal for raising the questions asked by jurors during deliberation without putting in a claim or argument; for failing to raise that the trial court or trial attorney erred in not requesting a mistrial due to the abundance of questions. *Appellate counsel also failed to argue that the trial court erred by suggesting that the jurors should take the video to the jury room.

          Appellate Attorney put in a shorten version of the questions asked by the jurors during deliberation without benefit of argument. Florida Rules of Appellate Procedure require the appellate party to specifically refer to those cases or statutes in the appellate brief to support his/her argument. Otherwise, the appellate judges will not know why the issue was raised.

          Based on the juror’s questions and request for a playback of the video, it is evident that jury considered their questions and reviewing the video important in deciding their verdict. The questions also indicate that the jurors had reasonable doubt and trial counsel was ineffective for not requesting a mistrial.

          *Trial court erred in suggesting to the state and trial counsel, that the jurors could view the video in the juror’s room. The jurors did not ask to take the video to the jury room; they only asked to view it. The jurors already had the instruction that they could only view the video in the courtroom in the presence of the court. The changed instructions were erroneous and prejudicial warranting reversal. Her original instructions were:

 During the trial, items were received into evidence as exhibits. You may examine whatever exhibits you think will help you in your deliberations. These exhibits will be sent into the jury room with you when you begin to deliberate. However, if you wish to watch the video of the defendant’s interview, please advise the court deputy, as you will only be able to view this video in the presence of the attorneys and the Court. You may view it as many times as you wish.    

The jurors may have been confused by the change in instructions. It was the trial judge’s idea for them to take the video back to the juror’s room. Since the jurors already had so many questions, viewing a video confession in the juror’s room could only put more emphasis on the video than other evidence. Additionally, the trial court should have found out what part of the video, the jurors wanted to revisit. Petitioner is also concerned that, as the jurors had access to the redacted video, there may have been portions of the video that the jurors were not supposed to see. Please note that even the state objected to the jurors taking the video to the jury room in the question. (See below)

          Lastly, the juror’s multitude of questions also indicates that the jurors had reasonable doubt to the petitioner’s guilt. Petitioner is publishing the entire question section for appellate review.   In some courts, the failure to answer or the giving of a response which provides no answer to the particular question of law posed has been held to be prejudicial error.

(TR 700-706) QADRI-Prosecutor – SCHWARTZ – Trial Counsel

THE COURT: We have a question, or multiple questions. Let’s take then one at a time. I would have a seat if I were you. One, are there phone records showing calls between detective and defendant? How many and how long?

State, how would you suggest I respond to that?

  1. QADRI: The standard instruction, you have been provided all the evidence in the case that — actually, if you want if say no, I don’t have a problem saying no.

THE COURT: Defense, what do you —

  1. SCHWARTZ: I would ask for some response along the lines of, you are in possession of all the evidence in this case. There is no other evidence to be considered for deliberations.
  2. QADRI: That’s fine.

THE COURT: Date the video was made.

  1. QADRI: I’m sorry?

THE COURT: The date the video was made?

  1. QADRI: I think it came out in evidence.
  2. SCHWARTZ: I think — I mean, candidly, Judge, I think that I would prefer to respond, you’re to rely on your recollection. I don’t think — they can have a read back, maybe. I don’t —

THE COURT: Well, would it say it on the video?

  1. QADRI: No, it does not.

THE COURT: How do you want me to handle this, Mr. Schwartz?

  1. QADRI: Read back would —
  2. SCHWARTZ: Yeah. What do you think? Just agree — we can tell them — I can call him right now.

THE COURT: I’m sorry?

  1. SCHWARTZ: It did come into evidence, Judge. So we may as well tell them rather than — we can tell then. I’m fine with that.

THE COURT: Do you agree on when it was made?

  1. SCHWARTZ: There’s going to be an agreement, Judge.


  1. SCHWARTZ: The video was when?
  2. QADRI: June 7th.

THE COURT: June 7th?

  1. SCHWARTZ: June 17th.

THE COURT: June 17, 2011. And it’s agreed that I tell them that?

  1. QADRI: Yes, Your Honor.

THE COURT: June 17, 2011. They want to watch the video again, so if we can get that set up. All right. You ready for the next paragraph? Are a lot of guns black?

  1. SCHWARTZ: Are what?

THE COURT: Are a lot of guns black? Is a Glock an unusual kind of gun? Do different Glocks look different from each other? Are Glocks easily accessible?

  1. QADRI: Same instruction Mr. Schwartz attested, to rely on evidence received. No other evidence to be relied on.

THE COURT: Mr. Schwartz, do you agree?

  1. SCHWARTZ: I think that’s pretty much the standard way to answer the questions. That’s fine.

THE COURT: Ready for the final one? Is it a coincident that both cases ended up in the lap of Detective Collins?

  1. SCHWARTZ: I think the same answer. I guess it’s the same answer, right? No?
  2. QADRI: Did they actually ask that question? I would — I don’t know if Mr. Schwartz — see, I don’t want to —
  3. SCHWARTZ: Judge, let’s rely on the same answer with that one, too.

THE COURT: Okay. As soon as we can get that set up with that video and they will come back out, I will give them the answers and then —

  1. SCHWARTZ: Ms. Gergely’s little dog has been alone all day. Is it all right if she leaves?


  1. QADRI: Your Honor, the only thing, because they’re watching the video, I would ask the Court to read the same instruction as read before about this is a stipulated — I forget exactly how it’s phrased. The Supreme Court — this is — you are not to consider anything else.
  2. SCHWARTZ: That’s fine.

THE COURT: You will need to send it to me again.

  1. QADRI: Yes, Your Honor.

THE COURT: And hold on to it for future use. And do you have it ready for them?

  1. QADRI: Yes, Your Honor. All they have to do is press play and —

THE COURT: Why are we watching that with them? Can’t they watch that back there? Is there other stuff on it?

  1. QADRI: My understanding was that they’re not allowed to watch —

THE COURT: No. Usually we — usually have a laptop which has other stuff on the laptop, so we never want to send it back to them. Do you have any objection with them watching it, State?

  1. SCHWARTZ: I would actually prefer it, Judge, because they are entitled to feel more free to, Judge —

THE COURT: Okay. I’m going to tell them they can push play. And I’ll call them out and give them all the other answers and send them back and they can watch it as much as they would like. And whenever the deputies are ready, you can bring them out.

COURT DEPUTY: Jury entering. (The jury enters the courtroom.)

THE COURT: And you may be seated. I received a number of questions. Can we move the TV? Remember, it’s still plugged in, also. I received a number of questions. I’m going to go through the questions and read them out loud. And then I’ll give you what is the response to that particular question. If the question is different than you meant it to be, let me know and I will — I will give you an opportunity to re-ask the question.

The first is, are there phone records showing calls between the detective and the defendant? How many and how long? I want to tell you that there’s no other evidence in this case. You have been presented all the evidence you are to consider, and you are only to consider the evidence, lack of evidence, and the instructions on the law in this case.

The video — the date the video was made is June 17th, 2011. The question, we want to watch the video again. We are going to provide it to you. You are going to have it back in the jury room with you. Just push play and you can watch it. I think all the controls work as you would expect.

The next paragraph. Are a lot of guns black? Is a Glock an unusual kind of gun? Do Glocks look different from each other? Do Glocks look very different from other guns? Are Glocks easily accessible? Again, that’s the same answer as question one. You’ve received all the evidence. You are only to consider the evidence that I have given to you. I can’t answer questions that are outside of the evidence in this case, which is also the answer to, is it, a coincidence that both cases ended up in the lap of Detective Collins. And with that, you can follow the deputies back.

RULE 3.410

(a)     If, after they have retired to consider their verdict, jurors request additional instructions or to have any testimony read or played back to them they may be conducted into the courtroom by the officer who has them in charge and the court may give them the additional instructions or may order the testimony read or played back to them. The instructions shall be given and the testimony presented only after notice to the prosecuting attorney and to counsel for the defendant. All testimony read or played back must be done in open court in the presence of all parties. In its discretion, the court may respond in writing to the inquiry without having the jury brought before the court, provided the parties have received the opportunity to place objections on the record and both the inquiry and response are made part of the record.

Justice for My Son 2

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