1 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 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 --------------------The above-entitled case came on for hearing before the Honorable JACQUELINE HOGAN-SCOLA, as Judge of the Circuit Court, in court pursuant to notice. 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 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 THURSDAY, DECEMBER 2, 2010, 12:31 P.M. (The following proceedings are a redacted version of the defense closing arguments, omitting objections, rulings and sidebars at the request of the ordering party).

ALL JURORS: Good afternoon. MR. LENAMON: I want to read you a little blurb from Ms. Rif in's closing argument bac in July of 2010. "And then, of course, what does he tell the detective? I snorted cocaine. Oh, yeah, you weren't acting li e it." 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 ta ing cocaine. That was Ms. Rif in's statement during the trial before we introduced the crac cocaine to you in the penalty

Today she tells you, after spending an extensive amount of time attac ing my witnesses, that none of these doctors have any corroboration and it's all self-serving and 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 ta e it a little bit different direction than I had planned to do.

I was going to tal

about Dr. Mash at some point,

phase. That was her position bac

then.

MR. LENAMON: Than

you, Judge. Good afternoon.

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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 bro en, and it was bro en because of drugs and booze. And it was bro en because it had already been bro en and that everything that happened was a result of those. And she tal ed about a bottle of Hennessey. Well, these are the State's own crime scene photos, ladies and gentlemen. There is the bottle of Hennessey. Why the State of Florida hid that from you, did not share that with you -(Omission). MR. LENAMON: Here's another picture which shows the bottle of Hennessey. Ta e your time. This is important. My client's life depends on this. (Omission). MR. LENAMON: May I proceed, Judge? THE COURT: You may.

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Now, I'm sure the State told you about how they believe -and I'm going to tal about Grady, Jr., who is my client's son, but I thin they are a little bit mista en. When we tal about my client's life and the trauma

that my client went through, I want you to loo

MR. LENAMON: Now, as you

now, this is Grady, Jr.

over here

but I thin

she's a great person to begin with. You see

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

that he suffered. And this is going to become important because -(Omission). MR. LENAMON: And this becomes important, fol s because the State of Florida spent four wee s stepping on my mitigation that I'm trying to present to you, the things

Miller's own testimony that no Metro-Dade Police Department had ever went up to Haw insville, Georgia, even after Ms. Rif in spent time tal ing to the historian from

police, never went up there to investigate on their own, never made any effort to do anything to try to substantiate the things that I presented. As a matter of fact, the only thing they did, besides bringing in Dr. Epstein, which we'll tal 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 quarterbac on behalf of the State of Florida.

Haw insville, Georgia, never went up there to tal

that I had to struggle for, because you

now by Detective

to the

left to tal

and loo at Grady, Jr. You can't see? Because, you see,

about that really can't tal about the trauma

5 1 2 3 4 5 from him? (Omission). MR. LENAMON: He never testified because he new -(Omission). MR. LENAMON: The State never had my client tested by anyone. (Omission). MR. LENAMON: The only people that you heard from in the form of medical doctors besides Dr. Epstein, which we'll tal about later on, are my doctors. (Omission). MR. LENAMON: Why do you thin you never heard

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Debra Mash important? We agree on some things myself and the State, some of the facts that they allege, but most we do not.

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 fran . This does not excuse his horrific act. This does not excuse or ta e away from the pain that he caused his family, her family, the

If you loo

Let's tal

about Debra Mash for a moment. Why is

at the statement of my client, the

6 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 people of this community. This does not excuse any of that. This is not a defense, fol s. That's why when I sat up here bac in June of this year and spent several days tal ing with you about how bad the facts of this cases were, as I indicated in my opening statement, I new we were going to get to the point

(Omission). MR. LENAMON: It was clear based on Dr. Mash's involvement in this case, and it was clear to me -(Omission). MR. LENAMON: -- that Dr. Mash had spo en to the defendant and that the defendant had told her, as she testified, that he had went through this rage blac out.

(Omission). MR. LENAMON: So when I tal ed to you during jury selection about your ability to put aside the anger and the

the unspea able things that occurred in that house, the unspea able 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 we were going to have to deal with that directly. It was something that we would have to be able to

frustration and the hate that comes along with

That was nown. I

new we were going to get to this day.

nowing about

of this day, because I

new at that time.

7 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 embrace in a way that you would never be able to embrace anything else from this moment on. Ta ing a step bac , I was going through my closing 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- nown local professor. (Omission). MR. LENAMON: And she sat down with me and tal ed to me about this woman who was a scientist, never heard of the woman before, named Marie Curry. And I as ed 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 of 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 be feared, it is only to be understood. Now is the time to understand more so that we may fear less." And after spea ing 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. Rif in has pulled, maybe rightfully so, on the strings of your

8 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 emotions which include hatred and anger and fear because of who Grady Nelson was, not only on the night that he brutally murdered his wife and stabbed his step-children, but things 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

Nelson to the point that he was to try to understand who he is. See, understanding who he is doesn't mean we have to accept it or excuse it. What it means is that we have a responsibility in our community, in the world that we live, and our responsibility as jurors to loo at everything before we ma e a decision as important as sentencing someone to death.

And in levels of culpability, that means that we

responsibility to loo below the surface.

Questions that may not be able to be answered. Questions that may pose a moral dilemma to you, a dilemma that is contrary to your feelings and to your world because I can be assured that the people in this courtroom don't live in the world of Grady Nelson or Angelina, that we have loving families and that we have -(Omission).

You have a responsibility to as

have a responsibility to loo

below the surface. You have a

today was to tal

about what we now what brought Grady

questions.

9 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 MR. LENAMON: The people in this courtroom have loving families. (Omission). MR. LENAMON: Loving families, people that care 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 li e that, is to react with our emotions, our emotions of anger and hate. I now, I watched you, I now every one of you have loo ed 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 to

truth. And the way we began this journey is, as you heard from Maria Ortega and a lot about Cynthia O'Shea, the mitigation specialist who is involved in this case, that we sought out that journey by see ing out information about Grady's life and we did the best that we could. I want to ta e a moment to just set something aside for a second before I get bac to that.

There's been a lot of it tal

see the truth, not see

their truth or my truth, but the

by the State and

10 1 2 3 4 even some of my own doctors of tests that were not given,

that you have here. You are going to be instructed on the law and ma ing 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 tal ed about this during opening, that the alliance for life is six 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 gotten along or you didn't get along, but I need six of you to step forward for me. (Omission). MR. LENAMON: And form an alliance for life because in order for Grady to receive a life sentence, it only requires six votes. Anything more is gratuity, anything less is death. When you are discussing this amongst yourselves, I want you to remember how many times through cross-examination Ms. Rif in, Ms. Mendez, through Dr. Epstein yesterday, and some of my experts brought out all the tests that I should have done.

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you

now, you 12 jurors, 14 jurors, now the responsibility

11 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 (Omission). MR. LENAMON: All the tests that should have been done in this case. (Omission). MR. LENAMON: The MRI, the PET Scan, in lieu of the QEEG, and I would suggest because of the gravity involved in this case if you feel those tests were not done 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 -(Omission). MR. LENAMON: -- I as you to vote for life. (Omission). THE COURT: I changed my mind. Ladies and gentlemen, I am going to instruct you one thing, that your recommendation here should be based on the evidence, and the law, and not on your feelings about the attorneys in any way.

they did a good job or thin one did a better job than another, that should have no weight in your deliberations. O ay?

MR. LENAMON: And as the evidence was presented to

And so if you li e or disli e them or don't thin

12 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 you by their own doctor, Dr. Epstein testified an MRI should have been done. If you feel that there's evidence to support that there's any indication of any brain damage and 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 deciding your verdict. (Omission). MR. LENAMON: Let's tal about this case and the facts of this case. You spent, I believe, in tal ing with my colleagues approximately nine hours deliberating the facts of this case.

statement. But I want to try to bring you bac 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 jail sometime around January 6th. This is coming from his statement. I made some notes, and I'm loo ing at the statement, and I made some notes with pages. And obviously this is something

on your memory or loo at this.

that's in evidence and you guys can go bac

and either rely

important factors that I thin the State

ind of overloo ed

facts, and you now his statement as well as I

So, you

now the facts as well as I now the now his

13 1 THE COURT: Did you give us an exhibit number? I

3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

MR. LENAMON: -- from the first part of the case. On January 6th he arrives home and there's conversations that he has with the police officers about him having sex at the house with the children and then going and getting some chic en at the Polo Tropical and coming home and again having sex, and then he moves to January 7th, which is a day

when he's home with his family. There's no other evidence of what occurred in that house other than the photographs that you see, the testimony that you have from the witnesses, who were police officers who arrived after the fact, the evidence that was collected, and we are going to tal about all of those, and his statement. Other than a few things that were tal ed about in his prestatement, one of which was that he claimed -- the detective claimed in his prestatement that he tal ed about committing suicide using cocaine, but there was never a question as ed in his formal statement about cocaine or drugs at all. As a matter of fact, Ms. Rif in got up here and

later and the detective directs him to 5:00 o'cloc

don't

now what you're referring to. MR. LENAMON: Yes. Exhibit No. 207 -THE COURT: Than you.

p.m.

14 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 waived a Miranda form in front of you that indicated that said he didn't drin 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 alcohol were ept from you and played down.

Let me begin with this, which is an important statement. We have the right results here, there's been no misjustice here.

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 thin ing about what the police did or 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 overloo ed or ind 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 ta e those things into consideration. When the police arrived there, they arrive to this horrific, horrific scene. And obviously Grady had guided them there because he calls them. Now, when the police get to the scene it's in

Grady Nelson

illed his wife and he deserves to

15

2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

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 in 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 time 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 loo at the aggravating factors which Ms. Rif in got up there and tal ed about and we'll tal 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.

about his state of mind involving the children because there were some questions that were as ed about second-degree homicide based on his own -- attempted second-degree murder based on his own statement, which he says in his statement unconditionally that the reason he starts to stab the children is because he's angry about what happened to Grady,

now there was conversation in the jury room

rambles. The scene is horrendous. If you loo

at the

16 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 Jr., but then he comes out of it and decides he doesn't want to ill them.

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 and admission to my doctor about how he went into this range ind of blac out, and how he stabbed his wife multiple

times. (Omission).

about, going bac 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 loo ed at one way now ta es on a different importance. So in his statement, you now, he tells the police, and remember he's giving the statement eight hours after he's ta en from the front of his yard to the police station. During that eight-hour period he's interviewed and it's during that eight-hour period that he is tal ed to by,

And although there are notes ta en and a report

I thin

it was Detective McCalley and Detective Ai en.

MR. LENAMON: Than

And that's important for a number of reasons

you. So as we were tal ing

17 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 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 part of this case, are loo ing at two things. These are seasoned homicide detectives. One is they have to be concerned about whether he 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. Clearly there was a period of time that lapsed. Even given the best case scenario, he's ta en into custody around 7:00 or 8:00 o'cloc p.m., he's placed on the 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 until around 8:00 o'cloc a.m. in the morning. But the Miranda is read to him sometime after midnight. Clearly a period of five hours and any expert who

18

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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 defense raised. (Omission). MR. LENAMON: Now, clearly the police are aware at 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 they do collect the crac cocaine because we now they collected

cocaine that are collected.

the crac

cocaine because we have pictures of the crac

nows anything about cocaine, five hours clearly would

19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 We have the actual cocaine itself that I introduced during my case, but at the time that's really not important to them. They are doing their job and they have to collect the evidence. Clearly they don't now that two years, four years later that Dr. Mash is going to come in and say, and if you loo at the photographs, there's a photograph of a pac of cigarettes and a lighter, and Dr. Mash testifies that his way of consuming cocaine -- and this is the lighter, is by

in the house, and then smo ing it and logic says the way you do that if you don't have cigarette papers is you remove the tobacco from -(Omission).

that was found on the bed, I believe, here it is; Kools. So we have cigarettes and a lighter and we have crac cocaine and we have empty baggies. Now, those empty baggies, which the State, I thin , 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 now those empty baggies right here, and here is one of them, Exhibit No. 94 was never tested. Now, logic would say, why do you need to test a

21 22 23 24 25

20

MR. LENAMON: Clearly there is a cigarette pac

grounding up the crac cocaine which we now there's crac

20 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 baggie. This is an open and shut case. There's a dead woman with 60 plus stab wounds and a nife in her head, and a person who is confessing. So all these little things may not have been important to the police at the time, but they clearly become important now. And even though if it was collected, not collected

because they have a burden of proof, they have a responsibility at the very least to do that or present that to you.

brought the cocaine. (Omission). MR. LENAMON: And I called the criminologist who testified to these drugs during my case. It wasn't Ms. Rif in or Ms. Mendez.

baggies, fol s. Loo . This is the same, they are the same. This is empty. Empty baggie, full crac baggie. Dr. Mash, his way of consuming cocaine is by crumbling up crac and smo ing it. He has all the tools. And drin ing and he drin s Hennessey. He smo ed and he

(Omission).

dran

Hennessey. Fol s, here is the Hennessey.

Now, why is that important? These the crac

And you

now that I presented this to you and I

advertently or not tested inadvertently, don't you thin

21 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 MR. LENAMON: Right here. Empty bottle, a pint. Is this a pint? It loo s li e a pint. That's consistent. They spent four wee s ranting and raving with my witnesses, professional doctors with credentials that are impeccable. Dr. Holmes who was here earlier who testified that she met with the defendant, Mr. Nelson, and she tal ed to him and that she couldn't get him to open up. And she explained a lot of times she did three or four interviews. A lot of times it ta es forming a relationship with an individual to get them to open up. This is a man who has been abused and is an

he's going to sit down and start spilling his guts right

It ta es time.

So Dr. Holmes went over there on two occasions and 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 and over through the questions that were as ed by the State about this phone call tag that they were tal ing about, went and formed a relationship with Grady Nelson. She sat down with him, she got his trust. (Omission).

away? Do you thin

the doctor can be connected that easily?

abuser, has used drugs and has gone to jail. Do you thin

22 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 out to tal MR. LENAMON: And she communicated to Dr. Holmes. (Omission). MR. LENAMON: She communicated to Dr. Holmes as you heard from Dr. Holmes that Grady told her he has been sexually abused. (Omission). MR. LENAMON: On the third occasion when she went to him, she got him to open up. She disclosed,

listen, I now this happened.

and he disclosed some other things about his history. And we now from her that from a very young age -he has memory bac to three or four years of age, and Dr. Holmes unrefuted -- now, remember when they get up here and

a doctor to say differently other than throwing questions at them and ma ing accusations? Dr. Holmes unrefutedly said a child can

that he communicated some of the traumatic things that happened. (Omission). MR. LENAMON: Why is that important, fol s? Why is that important? Because ultimately Dr. Holmes tells you

And Grady had memories going bac

have memories going bac

to when they are three or four. to that early age, and

rant and rave about my doctors, as

She had interaction with him and he disclosed that

yourselves did they call

23 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 that she has an opinion and she bases it on a number of things, including his history and including her formulation that he suffered from trauma, early childhood trauma. Why is that important? Because what I want you to focus on for a moment, if this room was Grady Nelson's life, and this is the event that occurred on January 7th or 6th of 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 tal ed about this at the very beginning of my opening statement? "Nothing in life is to be feared, it is only to be understood. Now is the time to 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 harmed, as they are in this case, it angers us the most severely out of everything. And at the beginning of this journey, I new that you -(Omission). MR. LENAMON: At the beginning of the journey, it was clear beginning in jury selection through the trial, that you were going to hear very, very traumatic events that occurred to children and that you would have to be able to

24 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 understand, not excuse, but to understand to some extent why those things happened. And when we began with the childhood trauma that Dr. Holmes tal ed about, the mother who was -- the mother who didn't treat him nicely, who dran , 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 jail was this horrific place, he said jail was a place of salvation for him where he new he was going to get fed. That gives credence to what he's saying, ma ing sense. Now, the State has ranted and raved about, oh, this mother gave him a better life. There's no proof of that. It's the opposite. That child was ta en from his mother, undisputed at four or five years old by another family member. So it's important to understand the trauma that he experiences ultimately leads in some form or fashion, and we don't now because we don't have a magic wand that God loo s down and says this is why it happened. We have to ind of piece things together. But to try to understand why he did what he did to that poor girl in 1990 and why he did what he did to his 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 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 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. Is that an excuse? Absolutely not. Does that ma e it easier for us to accept? Absolutely not. The only thing that you are as ed to do here today is understand two things. Number one, I am not as ing you 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 the young girl in 1990 and to the sexual assault to his daughter or step-daughter in 2005. That sentence will be sentenced separately by this 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 sentence that's in addition to the life sentence without the possibility of parole. (Omission). MR. LENAMON: The only thing that you have to

26 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 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 tal about this in our journey at the beginning of my closing statement about how you first loo 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 of his step-daughter. That was proven beyond a reasonable doubt. There's no question about that. He was previously convicted of the sexual battery to KF. We use her initials because she was a minor at the time even though she's an adult now. There's no question 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.

to be punished for the sexual battery on his step-daughter separately from this, and that although it is proven beyond

understand and mitigate that event. Is it an excuse? Absolutely not. But does it deserve to be tac ed onto a death sentence that's going to

a reasonable doubt, you have to loo

I say loo

at it and understand that he is going

beyond that and try to

27

2 3 4 5 6

(Omission). MR. LENAMON: -- to a death row cell. Is that something you are willing to tac on freely without considering all the evidence? And the evidence began here with Dr. Holmes tal ing about how a traumatic event up to the age of four can have such a devastating, devastating effect on a child, that many years later, including the witnessing of his own sister being raped, including witnessing that could have an effect that may cause him to do something as horrible as what Grady Nelson did. No excuse, it's as ing for mitigation. You have every right as jurors, to find mercy on any level in this case. But I'm not even as ing you for mercy at this point. I'm as ing you just to loo at the circumstances. (Omission). MR. LENAMON: I'm as ing you to loo at the circumstances of why he did what he did and to mitigate against those aggravating factors.

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

25

All these aggravating factor that attach to it,

24

his life for. The

23

tal ing about here of the event that he's on trial for illing of his wife. That's what it is.

And that ta es us bac

to the moment we are

ta e this man on a journey to a place called Star --

28 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 wall -(Omission). MR. LENAMON: -- with absolutely no proof about the prior sexual battery, the stabbing of Miguel, all those things, you need to loo at those carefully in the context of what was going on. What was going on by his own admission was that at 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 really about. The State throws it a bunch of mud against the

it was just, you now, this was calculated. It may not have been the greatest plan. But it was a plan. This case is about a disturbed mind becoming more 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. I

his mind and he was thin ing she told him, whether she really told him because she was, you now, metally challenged and she was saying something because she herself

was being abused? I mean, for all we

don't

now, we were not there. Whether he really believed this, whether it was in

now she could have

that this was a plan. That he had planned to

ill -- that

29 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 made it up just because of what he was doing to her. (Omission). MR. LENAMON: We don't now what was going through 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 li e this. He flew into a range and he said in his statement that rage caused him to want to harm his wife because he believed she was allowing it to happen. Now, why is what happened to him when he was four, what happened to him when he was nine with the sexual abuse, what happened to him with the traumatic brain injury, all that important? Because those are the pieces -- if you remember, I tried to deal with Dr. Epstein on this issue and he resisted. You put the pieces together, each of those -- each 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 man is sic . This man has had some disadvantages placed upon him. More importantly this man has a brain injury that 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 witness.

30 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 You heard him for a day or two testify. This is the man that started in QEEG in the early 1970s that was a

Maryland, a researcher with the National Institute of Health, that had written over 300 peer-reviewed articles on QEEG and EEG related issues. The master, the leader.

saying, oh, you're an entrepreneur. That guy should be ma ing $60 million a year, not 600,000. He's running a mom and pop operation with NeuroGuide. That guy is a genius. And you saw that when he testified.

carefully. He stepped down and he pointed things out. And then they have the nerve to bring in this neurologist who is a witness who testifies for insurance companies. (Omission). MR. LENAMON: Did no testing himself, didn't even use the computer program himself in doing the evaluation, pulled the raw data out, and armchair quarterbac ed on behalf of the State of Florida. That's what Dr. Epstein did. Who admitted as a neurologist he ma es all his money doing EEGs for his -- for people in his field, the medical doctors who should be the only ones who read EEGs because computers aren't reliable.

by step, by step, and I

He too

you through his slide presentation step, now all of you were listening very

The only way the State could attac

professor at New Yor

University, the University of

him was by

31

3 4 5 6 7 8

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 1993 to 2003, 2004. He was the director and he too you through,

10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

wave indicating the damage to Mr. Nelson's brain. He explained to you importantly, why it was not artifact. The doctor got up there and threw around the word artifact. It's muscle. It's not real, it's muscle. It's all jun . Jun in, jun out. He didn't do any tests himself. And he tal ed about how he made this accusation about how the leads were not connected. Dr. Gluc came in 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 chec ed it independently and the computer program chec ed it and there

fol s, he too

you through this. He showed you the sharp

bac 50 years in the field of science. It ma es no sense

If you relied on what he said, you can ta e us

32 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 was no artifact. It was all good EEG that was fed into this computer, the 20th century. The future of brain diagnostic evaluation. This is the future, fol s. You heard biofeedbac , neurofeedbac . Treating children with ADHD and other problems. There's always going to be people li e 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 detail. He went to great pains to show you by charting them, what they were and why they were not muscle artifact. Not muscle artifact. Good data that you can rely on. A computer program that he created using a normative database from the University of Maryland that was funded by the National Institute of Health at a cost of over $2.5 million. A normative database that Dr. Epstein refused to accept. He doesn't even use a normative database in his QEEG testing. He's an amateur compared to Dr. Thatcher. 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 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 damage, the small piece of the puzzle of this man's brain that is bro en and was bro en 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 the 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 can see yourself and evaluate that piece of evidence in conjunction with everything else. And he explained to you how the brain wor s. He spent hours ta ing 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. One piece of the puzzle. But before we got to that piece of the puzzle, we 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 wor ing memory problems, and problems with scoring on the WAIS and other tests including the tests that

34

2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

Sorting Test. What Dr. Ouaou said about the Wisconsin Card Sort

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 you are correct, the first three-quarters of this test indicates that he is so damage he falls into the 98 percent 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 said 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 his wor ing memory.

And that he had executive functions which Dr. Mash, Dr. Thatcher and Dr. Ouaou tal ed 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 are ta ing bac to that moment in time and why this is important. It doesn't offer an excuse, it offers an explanation of what was wrong with his brain at the time

is that he was confronted -- you remember Ms. Mendez bac

the State tal ed about and has dumped on, the Wisconsin Card

35 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 this happened. We now that there's evidence to support there was

you loo 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 out. He went out, fol s. It bro e, the connection bro e. And whether it was caused by the drugs or the brain damage or in conjunction, it bro e and he crossed that line.

crossing that line, that's when he tal s about how he's realizing that he's stabbing these children, he doesn't want to hurt them anymore, doesn't want to ill them and it's starting to come bac to him. Now, is everything he said to the police truthful? Maybe not. But we have all the evidence we need to support that this man was brain impaired at the time of the murder, and that's what we are tal ing about here, at the time of the murder.

all the impairment that she believed and the conclusion 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 ind of Fetal Alcohol Affect, not

And Dr. Mash comes bac

after she testified about

And when he realized that he was coming bac

crime scene, you loo

at the circumstances of this murder,

something wrong with his brain because if you loo

at the

from

36 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 syndrome, she told you. I as ed 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 didn't 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 MRI scan? And in her evaluation that there was neurological trauma that would have been consistent with fetal alcohol exposure, and I thin that's the word she used, fetal alcohol exposure.

in the womb of his mother through no fault of his own, no fault of his own, being exposed to something that could have been an ingredient that led to this in conjunction with other things that we've tal ed about that caused this horrific murder. And that's important because the issue of culpability -- moral culpability when you are tal ing about illing somebody. (Omission). MR. LENAMON: When you are tal ing about illing somebody, executing somebody has to be considered. The law

She says the brain is developing and this

hospital records, remember going bac

to the 2001

id is

37 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 requires you to consider that, anything that will mitigate against the death penalty. And I would suggest that with the evidence that's been presented to you over the last four wee s, 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. Not remove it, not excuse it, but offset the aggravation. Ma e it less 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 pac et the judge is going to hand out the jury instructions. The law says unconditionally that regardless of whatever findings you ma e, each of you individually, collectively as a group, as an alliance in any form you find comfortable, regardless of your findings in this respect -and when they are tal ing 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.

THE COURT: Than

you.

38 1 2 3 4 5 6 7 MR. LENAMON: I heard a sigh. That's why I'm 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 thin about the aggravating and mitigating factors. Besides the brain damage and all the stuff that we tal ed about, I want you to remember bac to Dr. Dunn testifying about the maternal abandonment and the affect it 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 li e very similar to this case, and about how, Mr. Nelson, who had not only been sexually abused, but sexually abused by someone in a position of trust, supposedly a member of a religious organization, a pastor. What ind of trauma, as Dr. Holmes tal ed about, that causes.

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

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. The murder was committed while defendant was under

And when you loo

at the mitigating factors, the

39 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 the influence of extreme mental or emotional disturbance and the capacity of the defendant to appreciate the criminality of his conduct was significantly impaired. She's going to tell you that those two things can

they deserve.

weight, even in the face of the aggravation that exists here

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, as the prosecutor tal ed 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: That the defendant had frontal lobe damage and traumatic brain injury and organic brain damage; the effect of drin ing and drugging on his brain the night the homicide was committed; the emotional reasons for the murder, as we tal ed about, his state of mind and his belief of what happened with his son being penetrated. And tie that into the fact that he himself was abused and witnessed the traumatic abuse of his sister,

and as we tal ed about, you can loo

And I thin

they deserve a significant amount of

at the aggravation and

be considered and you can give them the weight you thin

40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 traumatic childhood events including witnessing the rape of his sister. The Fetal Alcohol Affect, abandoned by his 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. He was sexually abused. A lifetime addiction to cocaine that 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 now that he didn't provide her any support in his lifetime and she still loved him. That's something you can consider. His poor social s ills, his poor educational s ills. I mean, he had unexplained absences. We did our best to try to bring you a complete picture but because of records and because of the times, we weren't able to get everything. We now, even Dr. Dunn who is a social psychologist, who is a chair at FIU Psychology Department

20 21 22 23 24 25

19

41

2 3 4 5 6 7 8 9 10 11 12 13

as a school psychologist is the number of days of absence. When he came here and the school records are available to loo at, but when Grady came to Miami, you now, there's this tal 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 community and you have no support system, and this is beginning at age nine or ten, so it's hard to believe that he would be s ipping school without parental intervention at nine or ten. But even if he is, those are things that we would

15 16 17 18 19 20 21 22 23 24 25

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 wor ed for the homeless, though he had problems while wor ing 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,

well at trial. These are all things that you can consider

indications that he is capable of

14

want to

now about. And because we weren't able to get

indness, that he behaved

for some time said that one of the things he would loo

at

42 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 in mitigation.

out a few of these that I thin 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 beginning 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 I want you, when you consider all the evidence, the lac of evidence, what was brought to you and what wasn't brought to you, I wasn't able to find a picture of him. This is the best I can do. This is his natural son. (Omission). MR. LENAMON: This is his natural son. This is -who has been adopted my his loving grandmother who is giving him a good home. He will never see his son again. He will never have contact with his son. (Omission). MR. LENAMON: I want you to remember at some point he was a child and the trauma that began in his life was very similar to the age that this young boy suffered trauma.

he ever ends up in a situation li e this?

And who is going to be there to spea

for him if

Anything that you can thin

of, and I only pointed

43 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 out. I as (Omission). MR. LENAMON: The Judge is finally going to read you the jury instruction and what the law is. And at the 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 that's 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.

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 chec 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, without the possibility of parole. He's going to die in prison. He will never get you to chec that box. Whoever the foreperson

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

And if what I'd as

you to do is to fill this out,

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 as you to consider everything that I presented, everything that I could not present or that I should have presented in ma ing a decision. (Omission).

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

MR. LENAMON: I than

you for your time.

45 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 ________________________ Brynn Doc stader, RMR IN WITNESS WHEREOF, I have hereunto set my hand in the City of Miami, Dade County, Florida, this 14th day of February, 2011. I, BRYNN DOCKSTADER, Court Reporter for the Circuit Court of the Eleventh Judicial Circuit of the State 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 the 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. STATE OF FLORIDA COUNTY OF MIAMI-DADE CERTIFICATE OF COURT REPORTER