1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 the 16 17 18 19 20 21 22 23 24 25 APPEARANCES: OFFICE OF THE STATE ATTORNEY KATHERINE FERNANDEZ-RUNDLE BY: ABBE RIFKIN, ASA -AND- HILLAH MENDEZ,

ASA -AND- JOEL ROSENBLATT, ASA FOR THE DEFENDANT: TERENCE LENAMON, ESQUIRE -AND-DAVID MARKUS, ESQUIRE --------------------Honorable JACQUELINE HOGAN-SCOLA, as Judge of the Circuit Court, in court pursuant to notice. The above-entitled case came on for hearing before GRADY NELSON, Defendant. ------------------------------------/ Gerstein Justice Building Miami, Florida December 2, 2010 vs. STATE OF FLORIDA, Plaintiff, REDACTED PROCEEDINGS DEFENSE CLOSING ARGUMENT IN THE CIRCUIT COURT OF THE 11TH JUDICIAL CIRCUIT, IN AND FOR MIAMI-DADE COUNTY, FLORIDA CASE NO. F05-00846

2 1 2 version 3 4 party). 5 6 7 8 9 10 11 12 13 14 15 penalty 16 17 18 19 and 20 21 22 23 24 there's no value to any of this. So I decided while I was listening to her during her closing argument that I was going to change the structure of my closing a little bit and take it a little bit different direction than I had planned to do. phase. That was her position back then. Today she tells you, after spending an extensive amount of time attacking my witnesses, that none of these doctors have any corroboration and it's all self-serving MR. LENAMON: ALL JURORS: MR. LENAMON: Thank you, Judge. Good afternoon. I want to read you a little blurb Good afternoon. of the defense closing arguments, omitting objections, rulings and sidebars at the request of the ordering THURSDAY, DECEMBER 2, 2010, 12:31 P.M. (The following proceedings are a redacted

from Ms. Rifkin's closing argument back in July of 2010. "And then, of course, what does he tell the detective? snorted cocaine. Oh, yeah, you weren't acting like it." I

There's no corroboration for that, that has been presented to you. There's not a shred of evidence to that

except the defendant's statement about taking cocaine. That was Ms. Rifkin's statement during the trial before we introduced the crack cocaine to you in the

25 point,

I was going to talk about Dr. Mash at some

3 1 2 3 4 5 6 7 8 9 Well, 10 11 State 12 -13 14 15 16 17 18 19 20 Jr. 21 22 23 24 trauma Now, I'm sure the State told you about how they believe -and I'm going to talk about Grady, Jr., who is my client's son, but I think they are a little bit mistaken. When we talk about my client's life and the (Omission). MR. LENAMON: Here's another picture which shows Take your time. This is of Florida hid that from you, did not share that with you these are the State's own crime scene photos, ladies and gentlemen. There is the bottle of Hennessey. Why the but I think she's a great person to begin with. You see

Dr. Mash is important because Dr. Mash is the only doctor that testifies that at the time of this event, at the time that he was stabbing his wife, that his brain was broken, and it was broken because of drugs and booze. And it was broken because it had already been broken and that everything that happened was a result of those. And she talked about a bottle of Hennessey.

the bottle of Hennessey. important.

My client's life depends on this. (Omission). MR. LENAMON: THE COURT: MR. LENAMON: May I proceed, Judge? You may. Now, as you know, this is Grady,

25

that my client went through, I want you to look over here

4 1 2 3 4 are 5 6 7 8 9 10 my 11 12 13 Department 14 15 16 17 18 substantiate 19 20 21 22 23 24 the had ever went up to Hawkinsville, Georgia, even after Ms. Rifkin spent time talking to the historian from Hawkinsville, Georgia, never went up there to talk to the police, never went up there to investigate on their own, never made any effort to do anything to try to the things that I presented. As a matter of fact, the only thing they did, besides bringing in Dr. Epstein, which we'll talk about, they sat psychologist Enrique Suarez on the front row for two days of testimony who you never heard from, who pretended to be an armchair quarterback on behalf of mitigation that I'm trying to present to you, the things that I had to struggle for, because you know by Detective Miller's own testimony that no Metro-Dade Police left to talk about that really can't talk about the trauma that he suffered. because -(Omission). MR. LENAMON: And this becomes important, folks And this is going to become important and look at Grady, Jr. You can't see? Because, you see,

Grady, Jr., was in that house when the trauma occurred to his mom. And the only two people that are around, that

because the State of Florida spent four weeks stepping on

25

State of Florida.

5 1 2 3 4 5 6 7 8 tested 9 10 11 from 12 13 14 is 15 16 17 18 19 20 21 22 23 not 24 away excuse his horrific act. This does not excuse or take Debra Mash important? We agree on some things myself and in the form of medical doctors besides Dr. Epstein, which we'll talk about later on, are my doctors. Let's talk about Debra Mash for a moment. Why by anyone. (Omission). MR. LENAMON: The only people that you heard knew -(Omission). MR. LENAMON: The State never had my client from him? (Omission). MR. LENAMON: He never testified because he (Omission). MR. LENAMON: Why do you think you never heard

the State, some of the facts that they allege, but most we do not. If you look at the statement of my client, the statement portrays my client as deranged, delusional, paranoid and clearly as Dr. Mash testified, under a drug induced form of dementia at the time of the homicide. (Omission). MR. LENAMON: Now, let's be frank. This does

25

from the pain that he caused his family, her family, the

6 1 2 3 June 4 5 6 point 7 8 9 10 11 12 13 14 15 16 17 jury 18 the 19 about 20 21 22 23 we the unspeakable things that occurred in that house, the unspeakable things that had occurred that Grady Nelson had done on prior occasions to two children, his own step-daughter and his own -- and a neighbor, Kesha, that frustration and the hate that comes along with knowing selection about your ability to put aside the anger and of this day, because I knew at that time. (Omission). MR. LENAMON: It was clear based on Dr. Mash's of this year and spent several days talking with you about how bad the facts of this cases were, as I indicated in my opening statement, I knew we were going to get to the people of this community. This does not excuse any of that. defense, folks. This is not a

That's why when I sat up here back in

involvement in this case, and it was clear to me -(Omission). MR. LENAMON: -- that Dr. Mash had spoken to the

defendant and that the defendant had told her, as she testified, that he had went through this rage blackout. That was known. I knew we were going to get to this day.

(Omission). MR. LENAMON: So when I talked to you during

24 25 to

were going to have to deal with that directly. It was something that we would have to be able

7 1 2 3 closing 4 5 6 7 8 9 talked 10 11 12 13 14 15 of 16 17 18 19 be 20 21 22 23 24 feared, it is only to be understood. Now is the time to the areas, at least physics, that Dr. Thatcher is involved in, and the first female professor at the University of Paris. It was quoted as saying, "Nothing in life is to to me about this woman who was a scientist, never heard of the woman before, named Marie Curry. And I asked her a little bit about it and this morning she brought in something that Marie Curry, who was the first woman -- one of the first women to win the Noble Prize -- two double prizes in physics and chemistry, some statement yesterday with Ms. Maurer, and I found that it's always better to surround yourself with people who are smarter than you are, and Ms. Maurer is a very well-known local professor. (Omission). MR. LENAMON: And she sat down with me and embrace in a way that you would never be able to embrace anything else from this moment on. Taking a step back, I was going through my

understand more so that we may fear less." And after speaking with Ms. Maurer and reading that, it became clear to me that that's where I needed to begin with you, because for the last two hours, Ms. Rifkin

25

has pulled, maybe rightfully so, on the strings of your

8 1 of 2 brutally 3 things 4 5 6 7 8 he 9 10 11 in 12 13 14 death. 15 16 a 17 18 19 20 21 be 22 the assured that the people in this courtroom don't live in responsibility to look below the surface. You have a responsibility to ask questions. Questions that may not be able to be answered. Questions And in levels of culpability, that means that we have a responsibility to look below the surface. You have our community, in the world that we live, and our responsibility as jurors to look at everything before we make a decision as important as sentencing someone to is. See, understanding who he is doesn't mean we have to that he had done before to both the young girl in 1990, which you heard from, and his own step-daughter. And I thought about the way to begin our journey today was to talk about what we know what brought Grady Nelson to the point that he was to try to understand who murdered his wife and stabbed his step-children, but who Grady Nelson was, not only on the night that he emotions which include hatred and anger and fear because

accept it or excuse it. What it means is that we have a responsibility

that may pose a moral dilemma to you, a dilemma that is contrary to your feelings and to your world because I can

23 24 25

world of Grady Nelson or Angelina, that we have loving families and that we have -(Omission).

9 1 2 3 4 5 6 7 like 8 9 10 11 12 13 14 15 to 16 17 18 heard 19 20 we 21 22 23 24 sought out that journey by seeking out information about Grady's life and we did the best that we could. I want to take a moment to just set something aside for a second before I get back to that. from Maria Ortega and a lot about Cynthia O'Shea, the mitigation specialist who is involved in this case, that seek the truth, not seek their truth or my truth, but the truth. And the way we began this journey is, as you that, is to react with our emotions, our emotions of anger and hate. I know, I watched you, I know every one of you MR. LENAMON: loving families. (Omission). MR. LENAMON: Loving families, people that care The people in this courtroom have

for them, people that could not imagine doing the things that Grady Nelson did or understanding why we do it. And our first reaction always in a situation

have looked over at him. (Omission). MR. LENAMON: With hate and maybe rightfully so,

but that's not what we are here for to decide today. We are here to understand to the best of all of our abilities what happened on that night and really try

25

There's been a lot of it talk by the State and

10 1 even some of my own doctors of tests that were not given,

2 you know, you 12 jurors, 14 jurors, know the responsibility 3 4 5 6 7 8 9 10 six 11 12 13 gotten 14 step 15 16 17 18 19 20 21 I 22 23 24 want you to remember how many times through cross-examination Ms. Rifkin, Ms. Mendez, through Dr. Epstein yesterday, and some of my experts brought out forward for me. (Omission). MR. LENAMON: And form an alliance for life along or you didn't get along, but I need six of you to of you. It doesn't matter what six it is, doesn't matter if you are friends or you're not friends or you have that you have here. You are going to be instructed on the law and making decisions based on the evidence, what has been presented but you also consider what's not been presented. And I would suggest to you that if you feel because, remember, and I'm going to explain this to you multiple times during my closing statement and we talked about this during opening, that the alliance for life is

because in order for Grady to receive a life sentence, it only requires six votes. anything less is death. When you are discussing this amongst yourselves, Anything more is gratuity,

25

all the tests that I should have done.

11 1 2 been 3 4 5 6 7 done 8 9 10 11 12 13 14 15 16 17 18 the 19 20 21 think 22 23 24 they did a good job or think one did a better job than another, that should have no weight in your deliberations. Okay? law, and not on your feelings about the attorneys in any way. And so if you like or dislike them or don't (Omission). MR. LENAMON: (Omission). THE COURT: I changed my mind. Ladies and -- I ask you to vote for life. and that you have even a small fraction of concern that there's evidence of brain trauma, brain injury, that you must vote for life. (Omission). MR. LENAMON: If I failed in my responsibility done in this case. (Omission). MR. LENAMON: The MRI, the PET Scan, in lieu of (Omission). MR. LENAMON: All the tests that should have

the QEEG, and I would suggest because of the gravity involved in this case if you feel those tests were not

gentlemen, I am going to instruct you one thing, that your recommendation here should be based on the evidence, and

25 to

MR. LENAMON:

And as the evidence was presented

12 1 should 2 3 and 4 5 6 deciding 7 8 9 10 11 12 13 14 15 16 overlooked 17 18 19 jail 20 21 22 23 sometime around January 6th. This is coming from his statement. I made some or misdirected you on. He got out of jail after serving some almost 30 days in jail beginning December 5th, leaving him out of your verdict. (Omission). MR. LENAMON: facts of this case. Let's talk about this case and the that an MRI would have been a better tool because you are buying anything the State says about the QEEG or their witness, then that is something you can consider in have been done. If you feel that there's evidence to you by their own doctor, Dr. Epstein testified an MRI

support that there's any indication of any brain damage

You spent, I believe, in talking with

my colleagues approximately nine hours deliberating the facts of this case. So, you know the facts as well as I know the facts, and you know his statement as well as I know his statement. But I want to try to bring you back some

important factors that I think the State kind of

notes, and I'm looking at the statement, and I made some notes with pages. And obviously this is something

24 rely 25

that's in evidence and you guys can go back and either on your memory or look at this.

13 1 I 2 3 4 5 case. 6 7 at 8 some 9 10 day 11 12 13 that 14 testimony 15 16 collected, 17 18 19 in 20 21 22 his prestatement, one of which was that he claimed -- the detective claimed in his prestatement that he talked about committing suicide using cocaine, but there was never a and we are going to talk about all of those, and his statement. Other than a few things that were talked about that you have from the witnesses, who were police officers who arrived after the fact, the evidence that was house other than the photographs that you see, the later and the detective directs him to 5:00 o'clock p.m. when he's home with his family. There's no other evidence of what occurred in chicken at the Polo Tropical and coming home and again having sex, and then he moves to January 7th, which is a the house with the children and then going and getting On January 6th he arrives home and there's conversations that he has with the police officers about him having sex don't know what you're referring to. MR. LENAMON: THE COURT: Yes. Exhibit No. 207 -THE COURT: Did you give us an exhibit number?

Thank you. -- from the first part of the

MR. LENAMON:

23 24 25

question asked in his formal statement about cocaine or drugs at all. As a matter of fact, Ms. Rifkin got up here and

14 1 2 3 4 5 6 7 alcohol 8 9 10 no 11 12 13 14 15 or 16 17 18 19 20 21 22 this 23 24 horrific, horrific scene. And obviously Grady had guided didn't do, it's not because I'm second guessing them or trying to criticize them, I'm trying to guide you and help you understand why some of these things were overlooked or kind of played down or ignored and why now in this part of the case when you are deciding his life or death, it's important that you take those things into consideration. When the police arrived there, they arrive to misjustice here. Grady Nelson killed his wife and he deserves to spend the rest of his life in prison, and by a life sentence, that's what he will do, he will die in prison. So when I'm thinking about what the police did were kept from you and played down. Let me begin with this, which is an important statement. We have the right results here, there's been waived a Miranda form in front of you that indicated that said he didn't drink and that he didn't use drugs and that he had the ability to give a statement. Now, we are not relitigating anything with the first part of the case, but it's important to understand what was going on with the police in this case; to understand why some of the things involving drugs or

them there because he calls them.

25

Now, when the police get to the scene it's in

15 1 2 3 4 5 in 6 7 8 9 10 time 11 12 13 14 15 16 17 18 19 20 there 21 22 murder 23 24 based on his own statement, which he says in his statement unconditionally that the reason he starts to stab the were some questions that were asked about second-degree homicide based on his own -- attempted second-degree in consideration of first weighing that state of mind in relation to the aggravating factors, because there's two roles you are going to play in this case, you are going to look at the aggravating factors which Ms. Rifkin got up there and talked about and we'll talk about how I believe some of them don't apply and some of them do, and then you are going to apply it to the mitigating factors and his state of mind at the time becomes very important. I know there was conversation in the jury room about his state of mind involving the children because a non-delusional way believed existed. Now, this becomes important because there was no insanity defense that was ever presented to you nor should there have been because this wasn't an issue of insanity. This is an issue of his state of mind at the rambles. The scene is horrendous. If you look at the

scene, it's clear that he was going through things turning them over and pulling stuff out, and it's clear and it's uncontested that he actually tried to burn some of these things that the State tries to play down as bugs, that he

25 Grady,

children is because he's angry about what happened to

16 1 want 2 3 4 5 6 and 7 8 9 10 11 12 13 14 15 16 17 importance. 18 19 20 21 22 and 23 by, 24 I think it was Detective McCalley and Detective Aiken. it's during that eight-hour period that he is talked to admission to my doctor about how he went into this range kind of blackout, and how he stabbed his wife multiple times. (Omission). MR. LENAMON: Thank you. So as we were talking to kill them. And that's important for a number of reasons because that's exactly how Dr. Mash describes -- his description before you convicted him, rightfully so, to sentence him to life, rightfully so, his own description Jr., but then he comes out of it and decides he doesn't

about, going back to the first part of the case, as I indicated, again, you made the right decision in the conviction, and it's important to understand some of the things that were going on to understand why you only heard certain evidence and why some of the evidence that you may have looked at one way now takes on a different So in his statement, you know, he tells the police, and remember he's giving the statement eight hours after he's taken from the front of his yard to the police station. During that eight-hour period he's interviewed

25

And although there are notes taken and a report

17 1 2 3 4 5 6 7 8 part 9 seasoned 10 11 he 12 13 14 15 16 17 18 into 19 the 20 21 22 until 23 is around 8:00 o'clock a.m. in the morning. But the Miranda grass, he's held out there on the grass for a number of hours, then he's transported at midnight to the police station and doesn't actually give his formal statement custody around 7:00 or 8:00 o'clock p.m., he's placed on gave a legally sound statement, meaning a voluntary statement. If he's under the influence at the time he gives that statement, then there could be questions raised about that statement. lapsed. Even given the best case scenario, he's taken Clearly there was a period of time that homicide detectives. One is they have to be concerned about whether of this case, are looking at two things. These are generated after the notes were destroyed, but there's no memorialization of what he says other than what they claim he says. According to them, he admits that he had used cocaine but after the fact and that he did so to commit suicide. Now what you have to understand is that the police, as was brought out to some extent in the first

24 25 who

read to him sometime after midnight. Clearly a period of five hours and any expert

18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 defense 15 16 17 at 18 19 20 21 22 they 23 collected 24 the crack cocaine because we have pictures of the crack do collect the crack cocaine because we know they the very least giving them the benefit of the doubt that what he says is what the police claim is true is true about him claiming to use drugs to commit suicide. They are aware that he claims to use drugs, but they made no effort to collect these empty baggies and raised. (Omission). MR. LENAMON: Now, clearly the police are aware knows anything about cocaine, five hours clearly would demonstrate that there may or may not be an issue of voluntariness that his statement began at midnight. But more importantly, they are also concerned about his state of mind at the time. If he's under the

influence of drugs or alcohol at the time of this event, although it doesn't reach a level of insanity, it could be argued that it -(Omission). MR. LENAMON: It could be argued as

a second-degree murder as opposed to a first-degree murder because it's rage. (Omission). MR. LENAMON: Or there could be some other

25

cocaine that are collected.

19 1 2 not 3 4 5 years 6 you 7 8 9 10 11 you 12 the 13 14 15 16 So 17 18 19 20 21 22 23 we have cigarettes and a lighter and we have crack cocaine and we have empty baggies. Now, those empty baggies, which the State, I think, raised in their closing argument, what proof do we have that there was drugs; that was in their original closing argument in the guilt phase. We know those empty baggies right here, and here tobacco from -(Omission). MR. LENAMON: Clearly there is a cigarette pack do that if you don't have cigarette papers is you remove look at the photographs, there's a photograph of a pack of cigarettes and a lighter, and Dr. Mash testifies that his way of consuming cocaine -- and this is the lighter, is by grounding up the crack cocaine which we know there's crack in the house, and then smoking it and logic says the way later that Dr. Mash is going to come in and say, and if important to them. They are doing their job and they have We have the actual cocaine itself that I introduced during my case, but at the time that's really

to collect the evidence. Clearly they don't know that two years, four

that was found on the bed, I believe, here it is; Kools.

24 25

is one of them, Exhibit No. 94 was never tested. Now, logic would say, why do you need to test a

20 1 2 and 3 4 5 become 6 7 collected 8 9 10 that 11 12 13 14 15 16 17 18 19 same. 20 21 22 23 24 This is empty. Empty baggie, full crack baggie. to you. And you know that I presented this to you and I brought the cocaine. (Omission). MR. LENAMON: And I called the criminologist who It wasn't advertently or not tested inadvertently, don't you think because they have a burden of proof, they have a responsibility at the very least to do that or present important now. And even though if it was collected, not a person who is confessing. So all these little things may not have been important to the police at the time, but they clearly baggie. This is an open and shut case. There's a dead

woman with 60 plus stab wounds and a knife in her head,

testified to these drugs during my case. Ms. Rifkin or Ms. Mendez. Now, why is that important? baggies, folks. Look.

These the crack

This is the same, they are the

Dr. Mash, his way of consuming cocaine is by crumbling up crack and smoking it. He has all the tools. He smoked and he

And drinking and he drinks Hennessey. drank Hennessey.

Folks, here is the Hennessey.

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(Omission).

21 1 2 3 4 5 6 that 7 8 9 or 10 11 12 13 14 15 easily? 16 17 and 18 19 20 and 21 22 went 23 and formed a relationship with Grady Nelson. over through the questions that were asked by the State about this phone call tag that they were talking about, she wasn't able to get the information she had, but she conveyed to you that Cindy O'Shea, who is a mitigation specialist, who you heard testimony about over and over It takes time. So Dr. Holmes went over there on two occasions four interviews. A lot of times it takes forming a she met with the defendant, Mr. Nelson, and she talked to him and that she couldn't get him to open up. And she explained a lot of times she did three MR. LENAMON: Is this a pint? Right here. Empty bottle, a pint. That's consistent.

It looks like a pint.

They spent four weeks ranting and raving with my witnesses, professional doctors with credentials that are impeccable. Dr. Holmes who was here earlier who testified

relationship with an individual to get them to open up. This is a man who has been abused and is an abuser, has used drugs and has gone to jail. Do you think

he's going to sit down and start spilling his guts right away? Do you think the doctor can be connected that

24 25

She sat down with him, she got his trust. (Omission).

22 1 Holmes. 2 3 4 5 6 7 went 8 disclosed, 9 10 that 11 12 -13 14 and 15 call 16 at 17 18 19 20 21 22 them and making accusations? Dr. Holmes unrefutedly said a child can have memories going back to when they are three or four. And Grady had memories going back to that early age, and that he communicated some of the traumatic things that happened. a doctor to say differently other than throwing questions rant and rave about my doctors, ask yourselves did they he has memory back to three or four years of age, and Dr. Holmes unrefuted -- now, remember when they get up here and he disclosed some other things about his history. And we know from her that from a very young age listen, I know this happened. She had interaction with him and he disclosed out to talk to him, she got him to open up. She (Omission). MR. LENAMON: She communicated to Dr. Holmes as MR. LENAMON: And she communicated to Dr.

you heard from Dr. Holmes that Grady told her he has been sexually abused. (Omission). MR. LENAMON: On the third occasion when she

23 24 25 you

(Omission). MR. LENAMON: is that important? Why is that important, folks? Why

Because ultimately Dr. Holmes tells

23 1 2 formulation 3 4 to 5 life, 6 of 7 8 9 10 11 12 13 14 to 15 16 17 18 19 20 21 22 it 23 was clear beginning in jury selection through the trial, understand more so that we may fear less." The thing that angers us most in society is when children are harmed. When children, innocent children are 2005, that's a moment in his life. To get to that moment you have to understand everything that's in this room, and the first portion of this room that becomes important is the trauma as a child and the effect it has on him. Why? Remember we talked about this at the very "Nothing in life is to Now is the time and this is the event that occurred on January 7th or 6th focus on for a moment, if this room was Grady Nelson's that she has an opinion and she bases it on a number of things, including his history and including her that he suffered from trauma, early childhood trauma. Why is that important? Because what I want you

beginning of my opening statement?

be feared, it is only to be understood.

harmed, as they are in this case, it angers us the most severely out of everything. journey, I knew that you -(Omission). MR. LENAMON: At the beginning of the journey, And at the beginning of this

24 that 25

that you were going to hear very, very traumatic events occurred to children and that you would have to be able to

24 1 why 2 3 4 5 6 7 8 jail 9 10 11 12 13 14 15 16 17 he 18 we 19 looks 20 21 22 to 23 that poor girl in 1990 and why he did what he did to his down and says this is why it happened. piece things together. But to try to understand why he did what he did We have to kind of don't know because we don't have a magic wand that God experiences ultimately leads in some form or fashion, and was this horrific place, he said jail was a place of salvation for him where he knew he was going to get fed. That gives credence to what he's saying, making sense. Now, the State has ranted and raved about, oh, this mother gave him a better life. that. It's the opposite. There's no proof of those things happened. And when we began with the childhood trauma that Dr. Holmes talked about, the mother who was -- the mother who didn't treat him nicely, who drank, who he spent time with in jail. And the jail, the reason these things are important and can be relied on is because he didn't say understand, not excuse, but to understand to some extent

That child was taken from his

mother, undisputed at four or five years old by another family member. So it's important to understand the trauma that

24 25

step-daughter years later, you have to understand and embrace, even if you embrace it in a way that's not

25 1 2 3 4 5 6 7 8 to 9 10 today 11 12 13 14 15 the 16 daughter 17 18 this 19 20 21 sentence 22 23 that's in addition to the life sentence without the possibility of parole. Judge in addition to the sentence you hand down for him, because you convicted him of the sexual battery he's going to get a sentence that's in addition, a consecutive or step-daughter in 2005. That sentence will be sentenced separately by young girl in 1990 and to the sexual assault to his is understand two things. Number one, I am not asking you accept? Absolutely not. The only thing that you are asked to do here comfortable, embrace the fact that he himself was damaged. And there may have been something, because Dr. Dunn and Dr. Holmes both opine as to the issue -- and even Dr. Mash who referred to the fetal alcohol effect as being a reason why sexual abuse may have occurred. There were three separate doctors that gave various reason of why he may have done that. excuse? Absolutely not. Is that an

Does that make it easier for us

to do anything but sentence him to life in prison for the rest of his life. That's number one.

Number two, is to understand that he's not on trial for the -- for his life for the sexual assault to

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(Omission). MR. LENAMON: The only thing that you have to

26 1 2 3 4 5 6 7 8 9 10 11 battery 12 13 14 15 16 17 18 19 20 21 beyond 22 to 23 24 25 understand and mitigate that event. Is it an excuse? Absolutely not. But does it a reasonable doubt, you have to look beyond that and try to KF. We use her initials because she was a minor at the There's no question concern yourselves with here is not to accept what he did, but to put it in the context of the entire picture. And when I started to talk about this in our journey at the beginning of my closing statement about how you first look at the weight of the aggravating factors, they may have been proven beyond a reasonable doubt. There's no question they were proven beyond a reasonable doubt. You convicted him of the sexual battery That was proven beyond a reasonable

of his step-daughter. doubt.

There's no question about that. He was previously convicted of the sexual

time even though she's an adult now. about that.

Proven beyond a reasonable doubt.

The issue is to what weight you give it, and the State has gotten up here and ranted about how this is so heavily weighed that you must use it in consideration of imposing a death sentence, and I say differently. I say look at it and understand that he is going to be punished for the sexual battery on his step-daughter separately from this, and that although it is proven

deserve to be tacked onto a death sentence that's going to

27 1 2 3 4 5 6 7 8 child, 9 10 an 11 12 13 14 15 16 17 18 19 20 21 22 23 24 is. 25 All these aggravating factor that attach to it, effect that may cause him to do something as horrible as what Grady Nelson did. mitigation. You have every right as jurors, to find mercy on any level in this case. mercy at this point. circumstances. (Omission). MR. LENAMON: I'm asking you to look at the But I'm not even asking you for No excuse, it's asking for that many years later, including the witnessing of his own sister being raped, including witnessing that could have take this man on a journey to a place called Stark -(Omission). MR. LENAMON: -- to a death row cell. Is that

something you are willing to tack on freely without considering all the evidence? And the evidence began here with Dr. Holmes talking about how a traumatic event up to the age of four can have such a devastating, devastating effect on a

I'm asking you just to look at the

circumstances of why he did what he did and to mitigate against those aggravating factors. And that takes us back to the moment we are talking about here of the event that he's on trial for his life for. The killing of his wife. That's what it

28 1 those 2 3 4 at 5 6 7 really 8 9 10 11 12 13 14 have 15 16 more 17 18 19 I 20 21 in 22 23 his mind and he was thinking she told him, whether she really told him because she was, you know, metally don't know, we were not there. Whether he really believed this, whether it was disturbed because of the drugs and the alcohol that he was using or because of his brain injury, going into a rage, because of something that was said to him or he imagined. been the greatest plan. But it was a plan. wall -(Omission). MR. LENAMON: that this was a plan. -- with absolutely no proof about That he had planned to kill -- that It may not about. The State throws it a bunch of mud against the some point his step-daughter told him that Miguel and another boy by the name of deKwan Williams had penetrated his four-year-old son. That's what this homicide is things, you need to look at those carefully in the context of what was going on. What was going on by his own admission was that the prior sexual battery, the stabbing of Miguel, all

it was just, you know, this was calculated.

This case is about a disturbed mind becoming

24 herself 25

challenged and she was saying something because she was being abused? I mean, for all we know she could have

29 1 2 3 through 4 5 6 7 8 9 happen. 10 four, 11 abuse, 12 13 14 and 15 16 each 17 18 19 man 20 21 22 that is sick. him. More importantly this man has a brain injury This man has had some disadvantages placed upon of the pieces together to try to explain that event, those moments of violence and understanding; not to forgive, not to forget, but to come to the human conclusion that this he resisted. You put the pieces together, each of those -what happened to him with the traumatic brain injury, all that important? Because those are the pieces -- if you what happened to him when he was nine with the sexual Now, why is what happened to him when he was the mind of her, if he told her or whether it was him just imagining this. But assuming that he did say -- she did say something to him like this. He flew into a range and he made it up just because of what he was doing to her. (Omission). MR. LENAMON: We don't know what was going

said in his statement that rage caused him to want to harm his wife because he believed she was allowing it to

remember, I tried to deal with Dr. Epstein on this issue

23 24 25 witness.

is supported by unrefuted testimony, and I say unrefuted because I will place Dr. Thatcher against Dr. Epstein any day and it's clear Dr. Thatcher is the exceptional

30 1 2 3 4 5 on 6 7 8 9 mom 10 11 12 13 very 14 And 15 is 16 17 18 even 19 20 21 22 23 for use the computer program himself in doing the evaluation, pulled the raw data out, and armchair quarterbacked on behalf of the State of Florida. That's what Dr. Epstein did. Who admitted as a a witness who testifies for insurance companies. (Omission). MR. LENAMON: Did no testing himself, didn't then they have the nerve to bring in this neurologist who carefully. He stepped down and he pointed things out. and pop operation with NeuroGuide. And you saw that when he testified. He took you through his slide presentation step, by step, by step, and I know all of you were listening That guy is a genius. QEEG and EEG related issues. The master, the leader. You heard him for a day or two testify. This is

the man that started in QEEG in the early 1970s that was a professor at New York University, the University of Maryland, a researcher with the National Institute of Health, that had written over 300 peer-reviewed articles

The only way the State could attack him was by saying, oh, you're an entrepreneur. That guy should be He's running a

making $60 million a year, not 600,000.

neurologist he makes all his money doing EEGs for his --

24 25

people in his field, the medical doctors who should be the only ones who read EEGs because computers aren't reliable.

31 1 2 3 4 5 6 1993 7 8 9 10 11 12 word 13 14 15 16 17 18 19 20 21 22 23 24 25 there artifact. all junk. himself. And he talked about how he made this accusation about how the leads were not connected. Dr. Gluck came in It's muscle. It's not real, it's muscle. He didn't do any tests It's to 2003, 2004. He was the director and he took you through, folks, he took you through this. He showed you the sharp He If you relied on what he said, you can take us back 50 years in the field of science. what he said. But Dr. Thatcher on the other hand, the director of the Neural Imaging Lab for the Department of Defense at the Veteran's Administration Office over in Tampa, from It makes no sense

wave indicating the damage to Mr. Nelson's brain.

explained to you importantly, why it was not artifact. The doctor got up there and threw around the

Junk in, junk out.

here and told you that everything was connected correctly and done correctly; that he had another person there, that he watched while the test was being run. The eyes open and the eyes shut. The data was

being collected, how he removed artifact and then he transposed that information to Dr. Thatcher. And Dr. Thatcher told you he checked it independently and the computer program checked it and

32 1 this 2 diagnostic 3 4 biofeedback, 5 6 7 8 9 10 11 12 13 detail. 14 15 artifact. 16 17 18 was 19 over 20 refused 21 22 to accept. He doesn't even use a normative database in $2.5 million. A normative database that Dr. Epstein funded by the National Institute of Health at a cost of Not muscle artifact. Good data that you can rely on. He went to great pains to show you by charting them, what they were and why they were not muscle evaluation. This is the future, folks. neurofeedback. problems. You heard computer, the 20th century. The future of brain was no artifact. It was all good EEG that was fed into

Treating children with ADHD and other

There's always going to be people like Epstein

around who resist what the future is. (Omission). MR. LENAMON: Dr. Thatcher brought you to the

future with great credibility, and he showed you and explained that this was indicative of frontal lobe damage. He pointed out specifically the frontal lobe amplitudes of the sharp wave. He pointed it out in

A computer program that he created using a normative database from the University of Maryland that

23 Thatcher. 24 25

his QEEG testing.

He's an amateur compared to Dr.

Not even in the same playing field. And what did we see? We saw this. We saw the

33 1 2 3 4 5 6 7 the 8 9 10 can 11 12 13 14 15 16 17 18 19 we 20 21 22 23 24 had the opportunity to deal with an individual by the name of Dr. Rob Ouaou who is a neuropsychologist who confirmed before you even heard from Dr. Thatcher that there was evidence through significant testing that was done, indicating working memory problems, and problems with see yourself and evaluate that piece of evidence in conjunction with everything else. And he explained to you how the brain works. He frontal lobe, and how LORETA, he explained LORETA to you. LORETA being the calculation that's used to transfer this information from EEG into this digital photograph so you damage, the small piece of the puzzle of this man's brain that is broken and was broken on the night of January 5th, January 6th, 2005. You were told how he got to that conclusion and you were shown the picture that supports that conclusion. Not only one picture, multiple pictures. The damage to the frontal lobe, the damage to

spent hours taking you through that and explaining, and he was reliable in everything he said. And he explained that the face delay to the left indicated the slow waves, which supported the damage. piece of the puzzle. But before we got to that piece of the puzzle, One

25 that

scoring on the WAIS and other tests including the tests

34 1 Card 2 3 Sort 4 5 6 7 8 9 percent 10 11 12 said 13 14 15 16 17 18 19 20 21 are 22 23 24 taking back to that moment in time and why this is important. It doesn't offer an excuse, it offers an unconditionally didn't change his position. What did we find out, that he was low average intelligence? That he had moderate to mild impairment in of the population is in a better position than he is. Assuming you are correct about the last part of this test being wrong. He even exceeded that. But he is that he was confronted -- you remember Ms. Mendez back there whispering with Dr. Suarez; he never testified. And she confronts him with some issues on the Wisconsin Card Sorting. He said, well, even assuming that Sorting Test. What Dr. Ouaou said about the Wisconsin Card the State talked about and has dumped on, the Wisconsin

you are correct, the first three-quarters of this test indicates that he is so damage he falls into the 98

his working memory. And that he had executive functions which Dr. Mash, Dr. Thatcher and Dr. Ouaou talked about, the frontal lobe running the executive function and how that itself causes this impulse, this inability to control, especially when someone is on drugs. And that's why we

25

explanation of what was wrong with his brain at the time

35 1 2 was 3 4 5 6 7 out. 8 9 in 10 11 from 12 13 want 14 15 16 truthful? 17 support 18 murder, 19 20 21 about 22 all the impairment that she believed and the conclusion and that's what we are talking about here, at the time of the murder. And Dr. Mash comes back after she testified that this man was brain impaired at the time of the Maybe not. But we have all the evidence we need to to hurt them anymore, doesn't want to kill them and it's starting to come back to him. Now, is everything he said to the police crossing that line, that's when he talks about how he's realizing that he's stabbing these children, he doesn't conjunction, it broke and he crossed that line. And when he realized that he was coming back He went out, folks. It broke, the connection broke. And something wrong with his brain because if you look at the crime scene, you look at the circumstances of this murder, you look at the rage, the 60 stab wounds, even though he says it was somewhere around ten in his own statement. There was 60-something stab wounds. He went this happened. We know that there's evidence to support there

whether it was caused by the drugs or the brain damage or

23 24 25

based on her opinion and conversation with him, and tells you that in addition to everything else, that he may have been suffering from some kind of Fetal Alcohol Affect, not

36 1 2 3 4 didn't 5 6 7 8 9 10 neurological 11 12 13 14 15 16 have 17 18 19 20 21 about 22 23 24 killing somebody. (Omission). MR. LENAMON: When you are talking about killing been an ingredient that led to this in conjunction with other things that we've talked about that caused this horrific murder. And that's important because the issue of culpability -- moral culpability when you are talking feel she was that well versed in this to say it was Fetal Alcohol Syndrome or that there was support of that. But she clearly said there was support in the hospital records, remember going back to the 2001 hospital MRI scan? And in her evaluation that there was trauma that would have been consistent with fetal alcohol exposure, and I think that's the word she used, fetal alcohol exposure. She says the brain is developing and this kid is in the womb of his mother through no fault of his own, no fault of his own, being exposed to something that could syndrome, she told you. I asked her, can you point anything out in this picture and she said, she may have been able to show you something but she didn't feel comfortable because she

25 law

somebody, executing somebody has to be considered.

The

37 1 2 3 that's 4 5 6 7 8 9 less 10 11 12 13 judge 14 15 16 17 find 18 19 20 21 22 23 24 and when they are talking about weighing aggravating and mitigating circumstances, the Legislature in the State of Florida has empowered each of you to neither be compelled nor required to recommend a sentence of death. (Omission). MR. LENAMON: I'm almost done, Judge. comfortable, regardless of your findings in this respect is going to hand out the jury instructions. The law says unconditionally that regardless of whatever findings you make, each of you individually, collectively as a group, as an alliance in any form you weighty. And I would suggest to you that in addition to that, the law says unconditionally -- the law says unconditionally and you'll get this in your packet the been presented to you over the last four weeks, that there is a tremendous amount of mitigation that would support a life sentence. That there's a tremendous amount of mitigation that can be offered to offset the aggravation. it, not excuse it, but offset the aggravation. Not remove Make it requires you to consider that, anything that will mitigate against the death penalty. And I would suggest that with the evidence

25

THE COURT:

Thank you.

38 1 2 3 4 5 6 7 we 8 9 it 10 11 12 13 14 not 15 in 16 17 Holmes 18 19 20 21 22 23 24 talked about, that causes. And when you look at the mitigating factors, the Judge is going to tell you that you consider pretty much anything that you feel is important. She's going to specifically read to you two mitigating factors that you can consider, the capital felony. a position of trust, supposedly a member of a religious organization, a pastor. What kind of trauma, as Dr. only been sexually abused, but sexually abused by someone had on Mr. Nelson. And about how he went out into the community and studied about the various factors that affect our children that ultimately end in situations of violence like very similar to this case, and about how, Mr. Nelson, who had talked about, I want you to remember back to Dr. Dunn testifying about the maternal abandonment and the affect MR. LENAMON: wrapping it up. As I indicated, members of the jury, the Court will explain to you that you have the absolute right to recommend life, period, no matter what you think about the aggravating and mitigating factors. Besides the brain damage and all the stuff that I heard a sigh. That's why I'm

25 under

The murder was committed while defendant was

39 1 and 2 criminality 3 4 can 5 6 7 8 here 9 and 10 11 12 as 13 14 15 16 17 That 18 19 and 20 committed; 21 22 the emotional reasons for the murder, as we talked about, his state of mind and his belief of what happened with his drugging on his brain the night the homicide was the defendant had frontal lobe damage and traumatic brain injury and organic brain damage; the effect of drinking the prosecutor talked about, which is a catch-all which means anything about the events leading up in the defendant's life, or anything that would mitigate against the sentence of death. And some of the things you can consider are: you can clearly give it less weight because of some of the mitigating factors to consider in incorporating that. But she's also going to give you what's called, and as we talked about, you can look at the aggravation be considered and you can give them the weight you think they deserve. And I think they deserve a significant amount of weight, even in the face of the aggravation that exists the capacity of the defendant to appreciate the of his conduct was significantly impaired. She's going to tell you that those two things the influence of extreme mental or emotional disturbance

23 24 25

son being penetrated. And tie that into the fact that he himself was abused and witnessed the traumatic abuse of his sister,

40 1 of 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 had 20 21 22 we 23 24 25 weren't able to get everything. We know, even Dr. Dunn who is a social psychologist, who is a chair at FIU Psychology Department unexplained absences. We did our best to try to bring you a complete picture but because of records and because of the times, his sister. The Fetal Alcohol Affect, abandoned by his traumatic childhood events including witnessing the rape

mother who was jailed, neglectful and sometimes abusive. Abandoned my his father. Emotionally deprived childhood.

These are things that don't excuse him for the crime, these are things that you can consider in coming to the decision to give him life. He spent the night in jail with his mother. was sexually abused. was never resolved. You heard how some of these witnesses who testified had support systems in place and were able to overcome some of the tragic things, including his own daughter who ended up being very successful. But you heard her come in and say how much she loved her father. You know that he didn't provide her any He

A lifetime addiction to cocaine that

support in his lifetime and she still loved him. That's something you can consider. social skills, his poor educational skills. His poor I mean, he

41 1 2 3 4 5 6 7 8 community 9 age 10 11 or 12 13 would 14 15 16 17 18 19 20 21 22 23 24 behaved want to know about. And because we weren't able to get ten. But even if he is, those are things that we nine or ten, so it's hard to believe that he would be skipping school without parental intervention at nine and you have no support system, and this is beginning at for some time said that one of the things he would look at as a school psychologist is the number of days of absence. When he came here and the school records are available to look at, but when Grady came to Miami, you know, there's this talk by the State about how everything was dandy from then. Well, guess what, he was missing 30

and 40 days a year with no explanation. And if you are living in an impoverished

those to you, you can consider all of that in your formulation here of the mitigation. Obviously there was some testimony about the segregation issue, the fact that he was gainfully employed and worked for the homeless, though he had problems while working for the homeless, he still was gainfully employed. The jail record, the fact that he's a model prisoner and served his country. There is some incidences in the record, indications that he is capable of kindness, that he

25

well at trial.

These are all things that you can consider

42 1 2 pointed 3 4 5 6 7 beginning 8 9 10 I 11 12 to 13 14 15 16 -17 giving 18 will 19 20 21 point 22 he was a child and the trauma that began in his life was never have contact with his son. (Omission). MR. LENAMON: I want you to remember at some him a good home. He will never see his son again. He who has been adopted my his loving grandmother who is you, I wasn't able to find a picture of him. best I can do. This is his natural son. This is the want you, when you consider all the evidence, the lack of evidence, what was brought to you and what wasn't brought of this closing statement that I had Grady, Jr.'s pictures brought out for a particular reason. And the reason I had it brought out was because out a few of these that I think are important to be considered in mitigation including the effect of the execution on his daughter. (Omission). MR. LENAMON: And I told you that at the in mitigation. Anything that you can think of, and I only

(Omission). MR. LENAMON: This is his natural son. This is

23 trauma. 24 25

very similar to the age that this young boy suffered And who is going to be there to speak for him if he ever ends up in a situation like this?

43 1 2 3 4 5 6 7 8 9 10 that's 11 12 13 14 15 out, 16 17 18 19 20 21 without 22 23 24 25 out. the possibility of parole. He's going to die in prison. I ask you to check that box. He will never get as I indicated, that if you vote for life, do not have to put a number down, if six or more of you decide that life recommendation is the recommendation that should be given, you will check this box and it will say, the jury advises and recommends to the Court that it impose a sentence of life imprisonment upon the defendant, Grady Nelson, exactly what it means. If you vote for a recommendation of life, she's going to give it great weight, and that's exactly what it means. And if what I'd ask you to do is to fill this (Omission). MR. LENAMON: The Judge is finally going to read And at the

you the jury instruction and what the law is.

end she is going to give you this (indicating), which is a copy of the penalty phase capital felony jury recommendation. She will tell you unconditionally that your recommendation carries with it great weight and what that means is that, if you recommend a vote for death, she's going to give it great weight, and you can be assured

Whoever the foreperson

is to sign this and to provide it back to the Court.

44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 And I believe that if you do that, you have done your duty, and I ask you to consider everything that I presented, everything that I could not present or that I should have presented in making a decision. (Omission). MR. LENAMON: I thank you for your time.

(Subsequent proceedings were reported but are herein omitted at the request of the ordering party).

45 1 2 3 4 5 6 7 8 9 10 11 State 12 13 the 14 15 16 IN WITNESS WHEREOF, I have hereunto set my hand in 17 18 19 20 21 22 23 24 25 ________________________ Brynn Dockstader, RMR the City of Miami, Dade County, Florida, this 14th day of February, 2011. above-styled cause, as stated in the caption hereto, and that the foregoing pages constitute a true, accurate and correct computerized transcription of my report of said proceedings and evidence. of Florida, in and for Dade County, DO HEREBY CERTIFY, that I was authorized to, and did, report in shorthand the proceedings and evidence in I, BRYNN DOCKSTADER, Court Reporter for the Circuit Court of the Eleventh Judicial Circuit of the STATE OF FLORIDA COUNTY OF MIAMI-DADE CERTIFICATE OF COURT REPORTER